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Second Circuit Recognizes Cat’s Paw Theory of Liability

Edgar M. Rivera, Esq.

On August 29, 2016, in Vasquez v. Empress Ambulance Service, Inc., the Second Circuit vacated the Southern District’s decision and held that “retaliatory intent may be imputed to an employer where the employer’s negligence gives effect to the employee’s retaliatory animus and causes the victim to suffer an adverse employment decision.” In other words, where an employee with a discriminatory motive tricks the employer into discriminating against another employee, the employer may be liable.

Tyrell Gray, an Empress Ambulance Service dispatcher, began making unwanted sexual advances to Andrea Vasquez, a emergency medical technician (EMT), upon her hire in July 2013. He asked her out on dates, attempted to flirt with her, and touched her shoulder, making Vasquez extremely uncomfortable. After harassing Vasquez for six months, Gray escalated the situation. On January 8, 2014, Gray told Vasquez, “I bet I can make you leave your man,” and promised to “send … something between you and me.” Around midnight that night, while out on a shift, Vazquez received a text message of Gray’s erect penis, captioned: “Wat u think.”

Vasquez promptly informed an Empress field supervisor of Gray’s conduct, who asked Vasquez to file a formal complaint. While Vasquez was writing the complaint, Gray entered the room, saw a distressed Vasquez, and asked if she was okay. When Vasquez did not reply, he asked, “You’re reporting me, right?” and then left the room. Vasquez finished making her complaint. After being thanked for “telling her story,” Vasquez offered to show the supervisor Gray’s messages on her cell phone, but her supervisor refused to examine the messages. After leaving the room, Gray asked another EMT, Almairis Zapata, to lie for him and tell their supervisors that Vasquez and Gray had been in a romantic relationship. Zapata refused. Gray then manipulated a text message conversation on his iPhone to make it appear that a person with whom he had been sex messaging was Vasquez. He took screen shots of portions of the conversation, printed them out, and presented the documents to management as evidence that he and Vasquez had been in a consensual sexual relationship.

Shortly thereafter, Vasquez met with management. Empress had already reviewed Gray’s “documents” and had concluded that Vazquez was having an “inappropriate sexual relationship” with Gray. They informed Vasquez that they “knew the truth,” as they had seen Gray’s “proof”—a photo depicting a small fraction of a face that Gray alleged was Vasquez. Vasquez denied the allegations and asserted that Gray was lying. However, management insisted that they had the photo and knew it was her. When Vasquez asked to see the photo, they refused to show it to her. When Vasquez again offered to show Empress her own cell phone to show that this messaging never occurred, management again refused to look at the messages. Ultimately, Empress determined that Gray violated company policy by sending sexually explicit text messages and photos, and Vasquez violated company policy by providing false and misleading information in her complaint and during the investigation. Empress terminated both Gray’s and Vasquez’s employments.

Vasquez filed a claim against Empress for retaliation against her for making a sexual harassment complaint under Title VII of Civil Rights Act of 1964. The district court granted Empress’s motion to dismiss, holding that Gray’s retaliatory intent could not be attributed to Empress and therefore Empress could not have engaged in retaliation against Vasquez.

On appeal, the Second Circuit determined under what circumstances the “cat’s paw” theory will render an employer responsible for the animus of a low-level employee who works alongside the victim. The “cat’s paw” is a metaphor referring to the situation in which “an employee is fired or subjected to some other adverse employment action by a supervisor who himself has no discriminatory motive, but who has been manipulated by a subordinate who does have such a motive and intended to bring about the adverse employment action.” The Second Circuit, following the First Circuit, concluded that an employer may be held liable if:

[T]he plaintiff’s co-worker makes statements maligning the plaintiff, for discriminatory reasons and with the intent to cause the plaintiff’s firing; the co-worker’s discriminatory acts proximately cause the plaintiff to be fired; and the employer acts negligently by allowing the co-worker’s acts to achieve their desired effect though it knows (or reasonably should know) of the discriminatory motivation.

In other words, “when an employer in effect adopts an employee’s unlawful animus by acting negligently with respect to the information provided by the employee, and thereby affords that biased employee an outsize role in its own employment decision, can the employee’s motivation be imputed to the employer and used to support a claim under Title VII.”

The Second Circuit found that the Vasquez had adequately alleged negligence: it was negligent for Empress to credit Gray’s accusations to the exclusion of all other evidence and decline to examine contrary evidence offered by Vasquez when it knew, or, with reasonable investigation should have known, of Gray’s retaliatory animus. As a result of Empress’s negligence, Gray played a decisive role in Vasquez’s termination.

If your employer has discriminated against you because of your sex or gender, please contact The Harman Firm, LLP.


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