Can an employer be found to have acted discriminatorily if there is no allegation that a supervisor or manager acted with discriminatory intent? “Yes” – according to a recent U.S. Supreme Court decision. So, here’s the deal.
The Plaintiff, Vincent Staub, worked as an Angiography Technician for the Defendant, Proctor Hospital, until 2004 when he was fired. Mr. Staub was a member of the United States Army Reserve, which required him to attend one weekend drill per month and train full time for 2-3 weeks a year. His immediate and one-up supervisors were both hostile to his military obligations.
In January 2004, his resentful supervisor issued Staub a corrective action for purportedly violating a company rule requiring him to stay in his work area whenever he was not working with a patient. There were 2 problems with his corrective action. First, the rule allegedly violated by Staub didn’t exist. Second, even if it did, Staub didn’t violate it. A couple of months later, Staub’s immediate supervisor told the Hospital’s VP of HR that Staub had left his work desk without informing a supervisor, in violation of the previous corrective action notice. The VP of HR, in relying on the one-up supervisor’s accusations, looked at Staub’s personnel file and then fired him.
Staub sued the Hospital under the Uniform Services Employment and Reemployment Rights Act of 1994 (USERRA), contending that the motivating reason for his discharge was his military service. Staub admitted the VP of HR did not have any hostility to his military service. Rather, he alleged the hostility of his immediate and one-up supervisor influenced the VP of HR’s ultimate employment decision. A jury agreed and awarded Staub damages; however, the Seventh Circuit Court of Appeals reversed, noting that Staub had brought a “cat’s-paw” case, which meant he sought to hold his employer liable for the unlawful animosity by a supervisor who had not made the ultimate employment decision.
The USERRA prohibits discrimination against a person who is a member of the Uniformed Service and holds that discrimination can be found to exist where a person’s military service was a “motivating factor” in the employer’s adverse action.
Staub appealed the Seventh Circuit reversal to the U.S. Supreme Court. In early March of this year, Justice Scalia delivered the opinion reversing the Seventh Circuit. In so doing, the Court noted that an employer’s authority to reward, punish or dismiss is indeed often allocated among multiple agents, and that it is common for the ultimate decision-maker to rely upon the performance assessments of other supervisors. The Court noted that all supervisors are agents of the employer and when a supervisor at any level “causes” an adverse employment action, the employer is responsible for it. Furthermore, when discrimination is a motivating factor in the supervisor’s action, it becomes a motivating factor in the employer’s action by virtue of the agency relationship.
The Court found that the actions of Staub’s supervisors in issuing him a corrective action notice were intended by those supervisors to cause an adverse employment action. The Court also found the supervisor’s corrective action in January 2004 was a cause of Staub’s termination. The Court held that when a supervisor performs an act motivated by anti-military animosity, which is intended by that supervisor to cause an adverse employment action, and that act is the proximate cause of that ultimate employment action by someone in the next level up, then the Hospital was liable.
It appears the Hospital’s VP of HR relied on what she was told by Staub’s supervisors. She apparently did not ask Staub for his version of the events leading up to the corrective action. The VP of HR did not conduct a sufficient investigation, which the Court felt might have disclosed that Staub’s two immediate supervisors possessed animus against Staub for his protected military service. She might also have discovered the rule allegedly violated did not exist and/or that Staub hadn’t violated the rule.
Employers have often times prevailed in lawsuits claiming discrimination by establishing that the actual decision-maker was unaware of the plaintiff’s protected status and, accordingly, could not have been motivated by it. The Supreme Court’s decision in Staub v. Proctor Hospital would seem to make that defense far less available. The decision further suggests that managers should be very careful about simply accepting what they are told by a supervisor recommending an adverse action be taken against an employee. The decision-maker would be wise to at least consider an independent investigation which would include interviewing the employee being disciplined to determine whether discriminatory animus motivated the recommendation of a supervisor. It might also be worthwhile to make a problem–solving internal grievance procedure available to employees to “head off” potential litigation.