Tuesday, March 1, 2011

Plaintiff Wins USERRA Cat's Paw Case in U.S. Supreme Court Under "Motivating" Factor Standard

4United States Supreme Court 112904 March is off to a good start, at least for people who root for worker rights at the U.S. Supreme Court. Yet, as explained below, the finding of Cat's Paw theory liability in this case might not extend to other employment discrimination statutes that do not use the motivating factor test as part of the mixed-motive analysis.

In any event, the Court today decided Staub v. Proctor Hospital, 09-400 (U.S. Mar. 1, 2011).  Here are the facts from the Court's syllabus:

While employed as an angiography technician by respondent ProctorHospital, petitioner Staub was a member of the United States ArmyReserve. Both his immediate supervisor (Mulally) and Mulally’s supervisor (Korenchuk) were hostile to his military obligations. Mulally gave Staub disciplinary warning which included a directive requiring Staub to report to her or Korenchuk when his cases were completed. After receiving a report from Korenchuk that Staub had violated the Corrective Action, Proctor’s vice president of human resources (Buck) reviewed Staub’s personnel file and decided to fire him. Staub filed a grievance, claiming that Mulally had fabricatedthe allegation underlying the warning out of hostility toward hismilitary obligations, but Buck adhered to her decision. Staub sued Proctor under the Uniformed Services Employment and Reemploy-ment Rights Act of 1994 (USERRA), which forbids an employer todeny “employment, reemployment, retention in employment, promo-tion, or any benefit of employment” based on a person’s “membership”in or “obligation to perform service in a uniformed service,” 38 U. S. C. §4311(a), and provides that liability is established “if theperson’s membership . . . is a motivating factor in the employer’s action,” §4311(c).

He contended not that Buck was motivated by hostility to his military obligations, but that Mulally and Korenchuk were, and that their actions influenced Buck’s decision. A jury found Proctor liable and awarded Staub damages, but the Seventh Circuit re-versed, holding that Proctor was entitled to judgment as a matter oflaw because the decisionmaker had relied on more than Mulally’s and Korenchuk’s advice in making her decision.

The Supreme Court reversed the 7th Circuit in a decision by Justice Scalia (6-0-2), with Justices Alito and Thomas concurring and Justice Kagan not participating.  The basic holding is: "If a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA."

More specifically:

Proctor errs in contendingthat an employer is not liable unless the de facto decisionmaker is motivated by discriminatory animus. So long as the earlier agent in-tended, for discriminatory reasons, that the adverse action occur, he has the scienter required for USERRA liability. Moreover, it is axio-matic under tort law that the decisionmaker’s exercise of judgmentdoes not prevent the earlier agent’s action from being the proximatecause of the harm.

Justices Alito and Thomas concurred in the judgment, but would have overturned the Seventh Circuit decision "based on the statutory text, rather than principles of agency and tort law that do not speak directly to the question presented here."

The hope is that this decision extends to Title VII and other statutes with similar language, but the Court was construing what a "motivating factor" is, and, for instance, the recent Gross ADEA case says that a different standard of causation applies in ADEA cases where mixed-motived is not an option.

So, good decision today, but I do not think this is the last word on the Cat's Paw theory in employment discrimination cases.

PS

http://www.supremecourt.gov/opinions/10pdf/09-400.pdf

http://lawprofessors.typepad.com/laborprof_blog/2011/03/plaintiff-wins-userra-cats-paw-case-in-us-supreme-court-under-motivating-reason-standard.html

Employment Discrimination, Labor and Employment News | Permalink

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Comments

It's nice to see some optimism coming out of Wisconsin! I'm a little more nervous about this opinion than Paul, aside from the possible limitation to "motivating factor" statutes. Even setting aside all the problematic "animus" language, I'm worried about the "that is intended" clause in the statement of the holding (and throughout the opinion) here:

"We therefore hold that if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, 3 and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA."

The requirement that the ultimate adverse employment action be the subordinate's goal seems to allow for lots of situations in which subordinate supervisory conduct (within the scope of emp't) "because of X" can lead to adverse action and yet the employer can escape liability. Bah humbug. But at least the Alito concurrence reminds us that it could be worse!

NZ

Posted by: Noah Zatz | Mar 1, 2011 9:21:17 AM

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