Type: Law Bulletins
Date: 05/19/2017

Sixth Circuit Holds "Cat's Paw" Theory Applies to FMLA Retaliation Claims

On April 20, the 6th Circuit held that the “cat’s paw” theory of liability applies to FMLA retaliation claims. In Marshall v. Rawlings, an employee was fired after using FMLA leave for mental health issues. The employee alleged that two lower-level supervisors exhibited bias against her because she had taken approved medical leave. After she returned from the leave, the two supervisors allegedly influenced the decision to demote her and ultimately terminate her. The employee sued for FMLA retaliation, ADA discrimination, FMLA interference and intentional infliction of emotional distress.

The “cat’s paw” theory of liability acknowledges that a biased lower-level supervisor, without decision-making power, may influence a decision-maker, which may result in a discriminatory employment action. The 6th Circuit has applied the “cat’s paw” theory in a variety of discrimination cases but has never expressly determined that it applies to FMLA retaliation cases.

Now, the 6th Circuit has determined that:

  1. The “cat’s paw” theory of liability applies even in cases with multiple layers of supervision between the employee and the decision-maker.
  2. An employee who pursues an FMLA retaliation claim under a “cat’s paw” theory must prove that the decision-maker was the “cat’s paw” of the biased lower-level supervisor.
  3. The honest-belief rule is not applicable in “cat’s paw” cases because the honesty of the decision-maker’s belief is not relevant to the issue of whether a biased lower-level supervisor intentionally manipulated the decision-maker.

An employer can still avoid liability if it can show that the decision-maker conducted an independent investigation and determined that the adverse action was justified. It is imperative that the decision-maker document why adverse action is warranted independent of the subordinate’s recommendation. 

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