Recently an employer, Pepsico Pepsi Beverages Company, won a summary disposition in an age discrimination claim filed under Michigan law. (Damghani v Pepsico, 9/10/2015) But the real significance of this case has to do with the court rejecting the application of a common employment discrimination theory often referred to as the “cat’s paw liability.”
Background of the Employment Discrimination Lawsuit
As to the facts in the Pepsico case, the plaintiff claimed her supervisor, Jerry Caswell, was sarcastic and critical of her but “kind and happy” with other younger employees. Under Caswell, she was put on a performance improvement plan (PIP). And while on this PIP, another manager (Amy Heiney) removed plaintiff as a head cashier. Plaintiff claimed this same supervisor asked plaintiff when she would retire. Caswell – not the manager who made the allegedly discriminatory statement – eventually terminated plaintiff’s employment because she was unable to satisfactorily complete her PIP.
Plaintiff later sued her employer and her supervisor, Caswell, for age discrimination and retaliation under the Civil Rights Act (ELCRA), MCL 37.2201 et seq.
Cat’s Paw Theory and Employment Discrimination
Plaintiff argued that Heiney’s statement was direct evidence of discrimination with regard to her termination under a theory of “cat’s paw liability.” Under this theory, plaintiff argued that Heiney’s comment was direct evidence of discrimination with regard to plaintiff’s subsequent termination. The underlying premise of the “cat’s paw theory” is that the discriminatory animus of one individual (Heiney) who is not the ultimate decision-maker can trigger liability when the individual has singular or substantial influence over the actual decision-maker (Caswell) and uses that influence to cause the adverse employment action.
The Michigan Court of Appeals, however rejected both the argument and its application under the circumstances presented because no evidence was presented to support that Heiney’s discriminatory animus as reflected by her comment influenced or related to Caswell’s decision to terminate plaintiff.
The Take Away:
Senior managers and human resources personnel often rely on first line managers. And with ever increasing workloads, managers often lack the time or resources to conduct independent reviews of personnel decisions recommended or initiated by such managers.
While this court opinion is favorable for employers, it is unpublished, which means it has limited authority. With this in mind and as a best practice, companies need to guard against simply having managers “rubber-stamping” such recommendations. Instead, it is important role that upper management and human resources making employment decisions take care to conduct an independent inquiry of the alleged facts.
This means if witnesses are involved, they should be interviewed. And if documents are relied on, they must be reviewed. And in almost every instance it will be important to talk to the employee and get his or her side of the story before an adverse employment decision is made. While such efforts will no doubt take time, it may result in avoiding litigation or prevailing if a lawsuit were to be filed.
For more information about employment discrimination, contact attorney Jason Shinn. Since 2001, he has counseled many employers through investigations and termination decisions.