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Cat’s Paw Liability Extended to FMLA Retaliation

The Sixth Circuit Court of Appeals has extended the cat’s paw theory of liability to a discrimination claim brought under the Family and Medical Leave Act.  “Cat’s paw” refers to the standard by which the discriminatory animus of a low-level employee may be imputed to the employer.

Gloria Marshall worked for The Rawlings Company LLC. In 2012, she took a two-month FMLA leave to address some mental health issues that she was having. Upon her return to Rawlings, Ms. Marshall had a backlog of work. Her division Vice-President chastised her for repeatedly falling behind on her work. Even when the backlog was addressed, the VP claimed to be concerned about another one forming and recommended Ms. Marshall for demotion to the Division President. The Division President demoted Ms. Marshall asserting that it was solely based on Ms. Marshall’s performance. A year later, Ms. Marshall needed another leave for more mental health issues. Upon her return to work, there was concern about her performance. Ms. Marshall explained that the VP had been harassing her by belittling her ability to do her job on several occasions. This harassment was reported to the Division president. The president decided the complaints were merely an attempt to get around the job criticism and that any harassment was not based on a protected status. The company owner fired Ms. Marshall based on his belief that she had falsely accused the VP of harassment, as conveyed by the Division president. No investigation was conducted by the owner.

After reviewing the case, the Sixth Circuit Court of Appeals held that “the cat’s paw theory does apply to claim of FMLA discrimination.” It also found some evidence that the VP and Division director had shown animosity against Ms. Marshall for taking leave. Ms. Marshall should be permitted to impute the animus from the VP and Division director to the ultimate decision-maker, the company owner. There were questions of fact as to how much influence the lower level employees had over the termination. Ms. Marshall may have to first show that the VP did not have an honest belief; he then influenced the Division director who next unknowingly influenced the company owner.