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“Cat’s Paw” Theory of Retaliation: Employers can be held Liable for the Retaliatory Motives of Non-M

When you investigate an employee complaint of sexual harassment, how you conduct the investigation — and the actions you take as a result – matters a great deal. In fact, given a recent case expanding the basis upon which an employer can be held liable for retaliation, it may matter now more than ever.

In the case Vasquez v. Express Ambulance Service, Inc., the Second Circuit Court of Appeals held that an employer may be liable for unlawful retaliation if the employer allows itself to be manipulated by an employee into taking an adverse action against another employee, even if the employer itself had no retaliatory intent. The case arose from the complaint of Andrea Vasquez, an EMT working for Express Ambulance Service, Inc. Vasquez’s co-worker, dispatcher Tyrell Gray, sexually harassed Vasquez – harassment that culminated in Gray texting Vasquez a photo of his erect penis. Vasquez informed management about the harassment after receiving the photo and management began an investigation. Meanwhile, Gray found out Vasquez had reported him. Anticipating that he would be questioned about it, he altered text messages on his phone to make it appear that Vasquez had participated in a consensual sexual relationship with him. He printed out screen shots and had them at the ready when he was questioned by management about Vasquez’s allegations.

Management believed Gray’s side of the story, accepting the doctored text messages at face value and refusing Vasquez’s offer to show them her own phone. Determining that Vasquez had engaged in an inappropriate sexual relationship with Gray, they fired Vasquez. And so it seemed that, in this particular bout of he-said-she-said in the workplace, Gray had won.

But of course, that was not the end of the story. Vasquez sued Express Ambulance Service, and when the case reached the Second Circuit, the appellate court rejected the employer’s argument that it could not be held responsible for the retaliatory animus of Gray, a low-level, non-supervisory employee. Instead, the court adopted a legal theory known as the “cat’s paw” theory to hold the employer liable.

The cat’s paw theory of liability derives from an Aesop’s fable in which a monkey persuades a cat to pull roasting chestnuts out of the fire, promising they will eat them together. But the monkey eats all the chestnuts himself, leaving the cat with nothing but a burned paw for his trouble. In the Vasquez scenario, the employer is the cat and Gray is the monkey, tricking the unwitting employer into doing his bidding. The Second Circuit reasoned that the employer allowed itself to be manipulated by Gray due to its own negligence in refusing to examine Vasquez’s phone when she offered it, instead crediting Gray’s side of the story without question—despite the fact that, as the accused party, Gray had every reason to lie.

This case is significant in that the retaliatory animus of a non-supervisory employee was attributed to the employer. The takeaway for employers is that any investigation of discrimination or harassment must be handled carefully and even-handedly. It should not be an exercise in merely going through the motions and papering the file. Before accepting one party’s version of disputed facts, the employer must conduct a meaningful examination of the evidence and consider each party’s credibility and motives. PMP’s HR professionals and staff attorneys can provide assistance in this regard, or even conduct the investigation for you.  The experienced HR Consultants at PMP can customize a harassment/discrimination/retaliation prevention training for your staff.

The next time you receive a complaint of sexual harassment or discrimination, tread carefully and keep a cool head. Don’t get your paw burned in the fire.

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Portnoy, Messinger, Pearl & Associates, Inc. is here to answer any questions you have regarding retaliation. Please keep in mind that in addition to our staff of seasoned HR professionals, we also have a staff of experienced employment lawyers on hand to address any questions you may have regarding legal compliance. Contact us at 800-921-2195 or 516-921-3400. You can also visit our website http://www.pmphr.com/ or e-mail us at info@pmpHR.com.

This article is intended for general information only and should not be construed as legal advice.

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