Employer not Liable for Title VII Discrimination, Harassment, and Retaliaiton under the Cat's Paw Theory.

On May 28, 2021, the 7th Circuit affirmed an order of summary judgment in favor of an employer and against a former employee on her Title VII employment discrimination and retaliation claims.  Vesey v. Envoy Air, Inc. d/b/a American Eagle Airlines, Inc., No. 20-1606 (7th Cir. May 28, 2021).  The plaintiff, an airline agent, was terminated, according to the airline, after she abused her travel privileges.  She filed a lawsuit in federal court, alleging that she was harassed because of her race and terminated in retaliation for reporting the harassment.

She also alleged that she was subjected to a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII") and the Illinois Human Rights Act.  According to the plaintiff, the airline's findings against her were pretextual, and the airline investigated and terminated her in retaliation for her reporting racist and retaliatory conduct by other employees.  To establish a Title VII retaliation claim, an employee must demonstrate that: (1) she engaged in statutorily protected activity; (2) she suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action.  The plaintiff's filing of complaints was a protected activity, and her termination was an adverse employment action.  The only issue was the causal connection. 

The plaintiff argued that the airline is liable under the cat's paw theory of liability.  This is the theory that a biased supervisor, who lacks decision-making power, uses the formal decision-maker as a dupe in a deliberate scheme to trigger a discriminatory employment action.  The plaintiff claimed that her general manager harbored a retaliatory animus against her and encouraged another employee to file an anonymous complaint against her.  However, the mere fact that an employee's alleged wrongdoing was reported by a biased supervisor with a retaliatory or discriminatory motive does not establish liability under the cat's paw theory.  If an investigation results in an adverse job action for reasons unrelated to the supervisor's original biased action, then the employer will not be liable.  A plaintiff must show that the biased supervisor's actions were a proximate cause of the adverse employment action.  Proximate cause exists only if the investigation took the complaint into account without determining that the adverse action was, apart from the supervisor's recommendation, entirely justified, or if the investigation relied on facts provided by the biased supervisor.  Thus, if an employer's decision to take adverse employment action did not rely on the credibility of the biased supervisor--in other words, the employer believed it had independently sufficient reasons to take the action--then the employee's cat's paw theory will fail for lack of proximate cause.

In this case, there was no evidence that the employer's investigators relied on the veracity of the complaint for anything except initiating the investigation.  No evidence was introduced by the plaintiff that would create a genuine dispute that would allow a reasonable jury to conclude that the result of the investigation was proximately caused by the complaint, rather than by the independently sufficient findings of the investigation.

It should also be noted that the airline avoided any liability for an alleged racist remark from a coworker by promptly investigating the plaintiff's complaint and terminating the employee who was accused of making the remark.  Employer liability for coworker harassment requires that the employer be negligent in discovering or remedying the harassment.