Can an Employer Have Exposure to a Retaliation Claim Despite the Ultimate Decision-Maker Having No Retaliatory Motive?

This question was addressed in Fisher v. Lufkin Industries, 847 F.3d 752 (5th Cir. 2017). Fisher, an African American man, was terminated by Lufkin Industries for a violation of company policy.  Fisher filed suit claiming that he was terminated in retaliation for complaining of racial harassment in the workplace. The trial court dismissed Fisher’s lawsuit and he appealed to the 5th Circuit Court of Appeals.

A short time before his termination, Fisher reported to the Human Resources Department that a supervisor called him “boy,” which he considered racial harassment. The supervisor, angered by Fisher’s report, persuaded the Vice President of Human Resources to authorize an investigation into whether Fisher was selling DVDs in the workplace.  

Based on the findings of the investigation, the VP of Human Resources made the decision to terminate Fisher. There was no evidence that the VP had a retaliatory motive, but there was ample evidence that the angry supervisor had a retaliatory motive. And there was evidence that the supervisor steered the course of the investigation to make certain that Fisher was found guilty of violating a company policy.

This factual scenario raised the “cat’s paw” theory whereby an employer can be held liable for retaliation if the ultimate decision-maker (who has no motive or intent to retaliate) is influenced by another employee who does want to retaliate. [The phrase “cat’s paw” is derived from a 15th century fable in which a monkey persuades a cat to pull chestnuts from the embers amongst which they are roasting; the cat is left licking his burnt paws while the monkey gobbles up the chestnuts.]

The court determined that there was sufficient evidence to raise a jury question as to whether the unbiased VP’s decision to terminate was influenced by the angry supervisor, who wished to retaliate against Fisher for reporting racial harassment. Accordingly, the trial court’s dismissal was reversed and Fisher was allowed to proceed with his retaliation claim.

To avoid liability for retaliation when the chain of events leading to termination is initiated by an employee with retaliatory motive, the employer must show that the employee’s termination was “entirely justified” without taking into account any information from or influence by the employee with retaliatory motive. The take-away for employers is to scrutinize the motivation of an employee who asks that the conduct of another employee be investigated. 

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