Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834,
Argued October 13, 2011, Decided March 22, 2011
This case involved an employee who alleged that he was discharged as a result of oral complaints to his employer about the placement of its timeclocks. Overturning the Seventh Circuit's judgment that oral complaints are not protected, the Supreme Court held that oral complaints are covered by the FLSA's anti-retaliation provision when they provide the employer with fair notice under an objective standard.
Kasten was an employee of Saint-Gobain who complained about it placing its time clock in a place where employees put on (“donning”) and took off (“doffing”) protective gear, allegedly resulting in employees not being paid for donning and doffing time in violation of the FLSA. Kasten said he made multiple complaints about the timeclocks to Saint-Gobain's management team, beginning with his immediate supervisor and working up to the Operations Manager and Human Resources Manager. In those complaints, Kasten alleged that he specifically stated that he believed the location of the timeclocks was illegal and that he was thinking about filing a lawsuit to challenge the practice. Kasten never complained in writing or initiated a charge or lawsuit while employed.
Kasten brought suit against Saint-Gobain, alleging that it retaliated against him for this complaints by suspending and then firing him. The Seventh Circuit upheld the District Court’s grant of summary judgment for Saint-Gobain, holding that only retaliation in response to a written complaint, which could be filed with the employer, was unlawful under Section 215(a)(3), which prohibits retaliating against an employee for “filing any complaint.” 570 F. 3d 834 (7th Cir. 2009). In this regard, the FLSA requires more than "opposing any [unlawful] practice," which is the standard applied to retaliation cases under Title VII. See, e.g., 42 U.S.C. § 2000e–3(a).
The Supreme Court reversed the Seventh Circuit, holding that the oral complaints to an employer could also be protected, although filing a complaint contemplates adegree of formality. In so doing, the Court effectively adopted an objective standard of actual notice to the employer, finding that any complaint that is "sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection" will trigger the anti-retaliation provisions.
After Kasten, it is clear that internal oral complaints may be protected activity under the FLSA, as they certainly are under Title VII. Employers must therefore train management and human resources personnel on how to appropriately respond to employee complaints, including emphasizing the employer’s policies prohibiting retaliation for good-faith complaints, whether oral or written, and promptly documenting and thoroughly investigating employee complaints.
Supreme Court Issues Opinion on Cat’s Paw Liability
Under the so-called cat's-paw theory of liability, an employee may establish unlawful employment discrimination when a biased non-decisionmaker (the monkey) influences an unbiased decisionmaker (the cat) to take action that he or she otherwise would not take. Although cat's-paw liability has long been recognized by lower courts (using divergent standards of proof), the U.S. Supreme Court had not previously weighed in on the issue. On March 1, 2011, however, the Court announced its decision in Staub v. Proctor Hospital. In a unanimous (8-0) decision authored by Justice Scalia, the Court for the first time recognized the cat's-paw theory of liability and announced a broad framework to be applied in such cases.
Plaintiff Staub, a technologist in the Diagnostic Imaging Department of Proctor Hospital ("Proctor") and a member of the United States Army Reserve, filed suit against Proctor, alleging that he was terminated from employment in violation of the Uniformed Services Employment and Reemployment Rights Act ("USERRA"). It is undisputed that Proctor's Vice-President of Human Resources, Linda Buck, made the decision to terminate Staub's employment and that Buck harbored no discriminatory animus toward Staub on account of his military status. Staub contends, however, that under the "cat's paw" theory of liability, the anti-military bias of his supervisors, Janice Mulally and Michael Korenchuk, influenced Buck's decision to terminate his employment, thus violating USERRA. Specifically at issue is section 4311(c) of 38 U.S.C., which provides that an employer engages in unlawful discrimination when the employee's military status is a "motivating factor" in an adverse employment action taken by the employer.
After a jury decided in Staub's favor the District Court denied Proctor's renewed motion for judgment as a matter of law, holding that Staub proved that his military status was a "motivating factor" in the decision to discharge him, and that Proctor failed to show that Staub would have been discharged regardless of his military status. No. 04-1219, 2008 WL 2001935 (C.D.Ill., May 7, 2008).
Proctor appealed, arguing that under Seventh Circuit precedent, Staub failed to demonstrate sufficient evidence to invoke the cat's paw theory. Specifically, Proctor argued that Staub failed to show that the supervisors' bias singularly influenced the decisionmaker. The Court of Appeals for the Seventh Circuit reversed, finding that Proctor was absolved of liability because it demonstrated that Buck did not base her decision solely on the input of the supervisors and that she exercised independent judgment after conducting her own investigation into the facts relevant to the decision. 560 F.3d 647 (C.D.Ill. 2009). The Seventh Circuit found that the trial court should have made an independent determination that the biased supervisors had "singular influence" over Buck, the ultimate decisionmaker, before admitting evidence supporting the cat's paw theory and submitting the theory to the jury. Id. at 658.
The Court considered "[t]he central difficulty in this case" to be "construing the phrase 'motivating factor in the employer's action,'" which is a provision in USERRA that mirrors Title VII. Specifically, the Court noted that a problem arises when "the company official who makes the decision to take an adverse employment action" "has no discriminatory animus but is influenced by previous company action that is the product of a like animus in someone else."
The Court applied tort law to resolve the problem. In an intentional tort the actor must intend the consequences of the act, rather than the act itself. In this case, the Court found that Mulally and Korenchuk were motivated by antimilitary animus and intended their actions to cause Staub to suffer an adverse employment action. The fact that they did not make the decision to fire Staub was immaterial: the Court found that their actions were a proximate cause of Buck's decision to terminate Staub's employment. The Court held that "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisors to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA."
The Court rejected Proctor's argument that because Buck conducted her own investigation before deciding to fire Staub, Mulally's and Korenchuk's actions were not proximate causes of the termination, writing that "[w]e are aware of no principle in tort or agency law under which an employer's mere conduct of an independent investigation has a claim-preclusive effect." The Court held that "if the employer's investigation results in an adverse action for reasons unrelated to the supervisor's original biased action . . . then the employer will not be liable. But the supervisor's biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor's recommendation, entirely justified."
The Court's decision in Staub prevents employers from insulating themselves against liability for discrimination by inserting an extra layer of decisionmakers between biased supervisors and ultimate adverse actions. Biased supervisors can pepper an employee's record with unfair criticisms, discipline, and other black marks that may cause another, unbiased person who reviews that record to conclude that the employee should be fired. In those circumstances the employer should be liable for discrimination and the victimized employee should be safe from adverse employment actions resulting from the discrimination, and that is the effect of the ruling in Staub.
The unresolved question that the Supreme Court sought to answer in Staub was just how much influence a biased supervisor had to have over the ultimate decisionmaker in order to render the employer liable for discrimination under the "cat's paw" doctrine. The Seventh Circuit had ruled that Staub must show that Mulally and Korenchuk had "singular influence" over Buck in order to invoke the cat's paw doctrine. The Supreme Court rejected that excessively demanding standard, replacing it instead with the "motivating factor" statutory language and applying it to the actions of the biased supervisors rather than to the ultimate adverse employment action: "if a supervisor performs an act motivated by antimilitary 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, then the employer is liable under USERRA." (Emphasis removed.) This principle should apply equally to claims under Title VII, which also incorporates the "motivating factor" principle.
