A company fires an employee. The employee files an action against the company, alleging that the firing was discriminatory. The company moves for summary judgement dismissing the complaint. The fired employee has no direct evidence that the supervisor who fired her had discriminatory animus. The employee does, however, have evidence that the superior’s subordinate had such discriminatory animus against her. What evidentiary showing must the fired employee make to avoid summary judgment on her claim (known as a “subordinate bias claim”)? According to the recent opinion of the United States District Court for the Eastern District of Pennsylvania in Burlington v. News Corp., 2010 WL 5341843 (E.D. Pa. 2010), courts have taken at least 3 different approaches. So, which approach is correct? In this post, I will argue that it is the approach consistent with the inevitable discovery doctrine under the Fourth Amendment. I will call this approach the “inevitable firing” approach.
As the Tenth Circuit’s opinion in E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, 450 F.3d 476 (10th Cir. 2006), explained, some courts have adopted the “cat’s paw doctrine.”
The “cat’s paw” doctrine derives its name from a fable, made famous by La Fontaine, in which a monkey convinces an unwitting cat to pull chestnuts from a hot fire….As the cat scoops the chestnuts from the fire one by one, burning his paw in the process, the monkey eagerly gobbles them up, leaving none left for the cat….Today the term “cat’s-paw” refers to “one used by another to accomplish his purposes.”…In the employment discrimination context, “cat’s paw” refers to a situation in which a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action.
Under this approach (sometimes also called the “rubber stamp” doctrine), a fired employee can only avoid summary judgment by proving that “the subordinate is the actual decisionmaker or the one principally responsible for the contested employment decision.” Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 290 (4th Cir. 2004).
Conversely, as the Eastern District of Pennsylvania noted in Burlington,
At the other end of the spectrum, several circuits follow a more relaxed standard, finding “that it is appropriate to tag the employer with an employee’s … animus if the evidence indicates that the worker possessed leverage, or exerted influence, over the titular decisionmaker.”
Finally, some courts, such as the Tenth Circuit in BCI have
settled on a middle ground in which a subordinate’s discriminatory animus can be imputed to the employer if “the biased subordinate’s discriminatory reports, recommendation, or other actions caused the adverse employment action.”
As the Tenth Circuit noted in BCI,
To prevail on a subordinate bias claim, a plaintiff must establish more than mere “influence” or “input” in the decisionmaking process. Rather, the issue is whether the biased subordinate’s discriminatory reports, recommendation, or other actions caused the adverse employment action.
So, who’s right? I think that the court in BCI correctly found that the cat’s paw/rubber stamp doctrine is misguided and places an unduly heavy burden on plaintiffs. What the Tenth Circuit correctly noted is that courts taking this approach rely upon Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), in which the Supreme Court held an employer liable for age discrimination after finding that the person harboring bias against him was the “actual decisiomaker.” But there is simply no indication in Reeves that the Supreme Court found this fact to be a necessary condition for success in a subordinate bias claim; instead, as the Tenth Circuit correctly noted, the Court simply found this fact to be a sufficient condition.
But here’s where the Tenth Circuit and I disagree. Here’s the court’s criticism of the more relaxed approach taken by some courts:
To prevail on a subordinate bias claim, a plaintiff must establish more than mere “influence” or “input” in the decisionmaking process. Rather, the issue is whether the biased subordinate’s discriminatory reports, recommendation, or other actions caused the adverse employment action….This standard comports with the agency law principles that animate the statutory definition of an “employer.”…Both the Supreme Court and this Court require a comparable causal connection as part of analogous workplace discrimination claims….We reaffirm our earlier decisions holding that, because a plaintiff must demonstrate that the actions of the biased subordinate caused the employment action, an employer can avoid liability by conducting an independent investigation of the allegations against an employee.…In that event, the employer has taken care not to rely exclusively on the say-so of the biased subordinate, and the causal link is defeated. Indeed, under our precedent, simply asking an employee for his version of events may defeat the inference that an employment decision was racially discriminatory….Employers therefore have a powerful incentive to hear both sides of the story before taking an adverse employment action against a member of a protected class. (emphasis added)
Really? A racist subordinate explains to a supervisor why an African-American employee should be fired based upon misconduct/deficient performance, the supervisor simply asks the employee for his version of events, the supervisor fires the employee, and the employer is off the hook? A chauvinist subordinate explains to a supervisor why a female employee should be fired based upon misconduct/deficient performance, the supervisor simply asks the employee for her version of events, the supervisor fires the employee, and the employer is off the hook? This makes no sense to me. In these examples (unless the fired employee’s version of events would warrant her being fired), it is clear that the supervisor is basing his decision on the version of events given by the racist/chauvinist subordinate, which means that the subordinate bias claim should at least survive summary judgment.
Or take the same facts as in these above two examples and assume that the supervisor engages in a perfunctory “independent” investigation of the disputed events. That’s sufficient to take the employer off the hook?
I don’t think that it should be, and I think that inevitable discovery doctrine under the Fourth Amendment explains why. Assume that a police officer engages in an unconstitutional search of a suspect’s house and recovers cocaine. The defendant then moves to suppress that evidence as the fruit of the poisonous tree (the unconstitutional search). The prosecution might respond with the inevitable discovery doctrine. First officially recognized by the Supreme Court in Nix v. Williams, the doctrine allows for the admission of unconstitutionally seized evidence if “it would ultimately or inevitably have been discovered even if no violation of any constitutional or statutory provision had taken place.”
Under inevitable discovery, the prosecution could claim that it was in the process of obtaining a search warrant for the house when the unconstitutonal search took place and that police inevitably would have uncovered the cocaine. Or, the prosecution could claim that they received a reliable tip that the suspect had cocaine at his house hours after the search and that this tip inevitably would have led to a search warrant and the cocaine being uncovered (This might also trigger the similar independent source doctrine).
One key to this doctrine is the issue of causation. As the United States District Court for the District of Massachusetts noted in United States v. Donnelly, 885 F.Supp. 300, 308 (D. Mass. 1995), “[t]he inevitable discovery doctrine…postulates a hypothetical independent source of the information taken from an illegal search, which if proven, would break the chain of causation between the illegal search and the evidence.” And, importantly, as the Court noted in Nix, the burden of proof is on the prosecution to prove inevitable discovery. According to the Court, “[i]f the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means…then the deterrence rationale has so little basis that the evidence should be received. Anything less would reject logic, experience, and common sense.”
Now, at first blush, this language highlights the difference between the inevitable discovery doctrine and subordinate bias claims: the Fourth Amendment. The Nix Court’s point was that while the Fourth Amendment prohibits unreasonable searches and seizures, the remedy of the exclusionary rule (excluding the cocaine from trial) is not necessary when the fruit of the unreasonable search/seizure (the cocaine) would inevitably have been discovered because there isn’t enough of a need to deter police misconduct in such cases. I think that we would all agree that the same requirement doesn’t and shouldn’t apply in subordinate bias cases. Take the case where a racist/chauvinist subordinate explains to a supervisor why a minority/female employee should be fired based upon misconduct/deficient performance and the supervisor investigates the allegations (by interviewing a number of other employees, reviewing the employee’s work product, etc.), and fires the employee. Under an “inevitable firing” approach similar to the inevitable discovery doctrine, the company could be sued for discrimination because the employee’s firing was not truly inevitable; instead, the issue of firing would not have arisen but for the racist/chauvinist subordinate approaching the supervisor.
At second blush, it is clear that there are two prongs to the inevitable discovery doctrine — independence and causation — and that the second prong has real relevance to subordinate discrimination claims. Sure, we shouldn’t force companies to retain employees simply because the idea of firing them was initially raised by racist/chauvinist subordinates. Instead, we should allow supervisors to investigate those claims and fire such employees even though such investigations aren’t truly independent of the initial racism/sexism (despite the claim of the Tenth Circuit in BCI).
But, as the Court noted in Nix, the requirement that the prosecution prove inevitable discovery by a preponderance of the evidence was not simply based upon the Fourth Amendment: It was also based upon “logic, experience, and common sense.” Sure, cocaine inevitably seized might inevitably have been discovered, but the default assumption is that the cocaine is the fruit of the poisonous tree, and the burden is on the prosecution to prove otherwise. In my mind, the same should apply in subordinate discrimination cases. When a racist/chauvinist subordinate explains to a supervisor why a minority/female employee should be fired based upon misconduct/deficient performance and the supervisor ends up firing the employee, the default assumption should be that the firing was the fruit of racism/sexism, and the burden should be on the company to prove otherwise. Now, certainly, the company can satisfy this burden by establishing that the employee inevitably would have been fired based upon her misconduct/deficient performance regardless of whether the racist/chauvinist subordinate raised the issue. But it seems to me that the company would have to make this showing of “inevitable firing” at trial, not at the summary judgment stage when the court must view the evidence in the light most favorable to the fired employee, giving her the benefit of all favorable inferences.
-Colin Miller
