The Second Circuit Court of Appeals has held an employer liable for retaliation after it advanced the retaliatory intent of a non-supervisory employee.
Andrea Vasquez alleged that she received obscene pictures and text messages from a co-worker who wanted to have a sexual relationship with her. According to Ms. Vasquez, the co-worker learned that she intended to complain about his conduct to management. He then altered text exchanges to make it seem as if Ms. Vasquez was a willing participant in a relationship with him and submitted those messages with a racy photo to management. This employee claimed that Ms. Vasquez had sent the photo to him. The employer, Empress Ambulance Service, Inc., believed the co-worker's evidence, decided that Ms. Vasquez was having an inappropriate relationship with him, and fired her. Ms. Vasquez told Empress that the co-worker was lying and offered to show her phone with the text messages from him on it. Empress refused to look at her phone and would not let her see the alleged racy photo of her. Ms. Vasquez brought suit.
Ms. Vasquez asserted that Empress allowed itself to be used as a "cat's paw" to carry out the co-worker's retaliatory intent. The Second Circuit upheld Ms. Vasquez' assertion, finding that she may succeed on her claim even without "evidence of illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to have the impermissible bias played a meaningful role in the decision-making process." The complaint showed negligence on the part of Empress because it had accepted the co-worker's evidence and accusations to the exclusion of all other evidence. An investigation would likely have revealed the co-worker's retaliatory animus. The court was careful to distinguish this holding from instances where an employer acts "non-negligently and in good faith" and may be limited to instances when the false accusations are the product of discriminatory or retaliatory intent.