Cat's Paw Hits 3rd Circuit - COTW #54

The Cat's Paw took a swipe at an employer in the Third Circuit on Wednesday, and it's the employment law Case of the Week. The case is McKenna v. City of Philadelphia, 2011 WL 3606834 (3d Cir. Aug. 17, 2011). But first, some background. Earlier this year, the Supreme Court recognized "cat's paw" liability. At the time, I wrote:

In Staub v. Proctor Hospital, the [Supreme] Court held that an employer may be liable where "a supervisor performs an act motivated by [discriminatory] 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." What does this have to do with investigations? Well, the Court also expressly held that an independent Investigation by the ultimate decisionmaker does not shield an employer from liability. Does this mean the investigation is worthless? Absolutely not, but it’s not the magic bullet that employers had hoped.

The Third Circuit drove that last point home this week.

In McKenna, three terminated police officers alleged that they were retaliated against for protesting discriminatory conduct. A jury awarded them big money (like 7-figure big). But, the supervisor with the alleged retaliatory animus had referred the employees to a Police Board of Inquiry ("PBI") for disciplinary action. And the PBI conducted a hearing, affirmed the charges, and then the Commissioner terminated the employee.

The PBI was not motivated by retaliatory animus, so the employer should be safe, right? NO! Didn't I just tell you that an independent investigation does not automatically shield the employer!? In McKenna, the Court held that:

[A] reasonable jury could find that [the supervisor's] animus played a substantial role in the ultimate decision by the PBI to recommend [the employee's] termination . . . . a reasonable jury could conclude that [the supervisor's] animus bore a direct and substantial relation to [the employee's] termination and that the PBI's recommendation was not independent and was foreseeable.

If a PBI, a quasi-judicial hearing conducted by a board of three people who didn't even know the employee, is insufficient to break the chain of causation... then what the heck can an employer do to shield itself from cat's paw liability?

Well, Eric Meyer, relying on the judicial expertise of Sesame Street, describes that last question as "one humdinger of a stumper." Indeed. I'll have to address that in a future post.

Image: Loyal readers probably recognize my cat, Merlin. I consult him prior to every cat's paw blog entry. He has his own photo album on the Lawffice Space Facebook page. I added some new shots to his album, so check it out.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.