{"id":111,"date":"2023-12-06T02:03:53","date_gmt":"2023-12-06T02:03:53","guid":{"rendered":"https:\/\/wrongful-termination-ca.com\/?page_id=111"},"modified":"2023-12-07T00:18:42","modified_gmt":"2023-12-07T00:18:42","slug":"adverse-action-made-by-decision-maker-without-animus-from-a-recommendation-from-or-relied-on-facts-provided-by-another-person-who-had-discriminatory-retaliatory-intent","status":"publish","type":"page","link":"https:\/\/wrongful-termination-ca.com\/index.php\/adverse-action-made-by-decision-maker-without-animus-from-a-recommendation-from-or-relied-on-facts-provided-by-another-person-who-had-discriminatory-retaliatory-intent\/","title":{"rendered":"Adverse Action Made by Decision Maker Without Animus (from a recommendation from or relied on facts provided by another person who had [discriminatory\/retaliatory] intent.)"},"content":{"rendered":"\n

Adverse Action Made by Decision Maker Without Animus (from a recommendation from or relied on facts provided by another person who had [discriminatory\/retaliatory] intent.)<\/strong><\/p>\n\n\n\n

In California employment law, the scenario where an adverse action is made by a decision-maker without animus, based on recommendations or facts provided by another person with discriminatory or retaliatory intent, presents a complex legal challenge. This situation often arises in the context of wrongful termination or other adverse employment actions. Here’s a comprehensive overview of this concept, its legal consequences, potential problems, and illustrative examples:<\/p>\n\n\n\n

Legal Framework and Principles<\/h3>\n\n\n\n
    \n
  1. Adverse Action by Non-Biased Decision-Maker<\/strong>: This occurs when a decision-maker, who does not hold any discriminatory or retaliatory intent, makes an adverse employment decision (like termination, demotion, or negative evaluation) based on information or recommendations from someone who does have such intent.<\/li>\n\n\n\n
  2. Legal Basis in California<\/strong>: The California Fair Employment and Housing Act (FEHA) and relevant case law underpin this concept. The key legal principle involved is the “cat\u2019s paw” theory.<\/li>\n<\/ol>\n\n\n\n

    “Cat’s Paw” Theory<\/h3>\n\n\n\n
      \n
    1. Definition<\/strong>: Named after a fable, this theory applies when a biased individual (who is not the ultimate decision-maker) uses a non-biased decision-maker as a conduit to carry out their discriminatory or retaliatory intent.<\/li>\n\n\n\n
    2. Application in Law<\/strong>: If it can be demonstrated that the biased individual\u2019s recommendation was a substantial factor in the adverse action, the employer can be held liable, even if the actual decision-maker had no discriminatory intent.<\/li>\n<\/ol>\n\n\n\n

      Legal Consequences<\/h3>\n\n\n\n
        \n
      1. For Employees<\/strong>: Successfully proving a “cat’s paw” case can lead to remedies typical in wrongful termination or discrimination cases, such as reinstatement, back pay, damages, and attorney’s fees.<\/li>\n\n\n\n
      2. For Employers<\/strong>: Employers may face legal liability and damages, even if the decision-maker was unbiased, provided the influence of the biased individual is substantiated.<\/li>\n<\/ol>\n\n\n\n

        Problems and Challenges<\/h3>\n\n\n\n
          \n
        1. Establishing the Influence<\/strong>: The main challenge is to establish the causal link between the biased individual’s input and the decision-maker’s action.<\/li>\n\n\n\n
        2. Determining Substantial Factor<\/strong>: Assessing whether the biased recommendation was a substantial factor in the adverse decision can be complex.<\/li>\n\n\n\n
        3. Documenting the Decision Process<\/strong>: Both sides face challenges in documenting and proving the decision-making process and influences.<\/li>\n\n\n\n
        4. Mixed Motive Issues<\/strong>: Cases where both legitimate and biased motivations are present can be particularly complicated.<\/li>\n<\/ol>\n\n\n\n

          Examples<\/h3>\n\n\n\n
            \n
          1. Example of “Cat’s Paw” Scenario<\/strong>: An employee is recommended for termination by a supervisor who has demonstrated bias against the employee’s race. The higher-level manager, unaware of this bias, acts on the recommendation and terminates the employee. This could be a case where the “cat’s paw” theory is applicable.<\/li>\n\n\n\n
          2. Example of Non-Applicability<\/strong>: An employee is terminated based on poor performance evaluations, which are corroborated by multiple sources, including unbiased individuals. In this case, the “cat\u2019s paw” theory may not apply if the decision was not significantly influenced by biased recommendations.<\/li>\n<\/ol>\n\n\n\n

            Conclusion<\/h3>\n\n\n\n

            The concept of an adverse action made by a decision-maker without animus, based on the influence of a biased individual, is a nuanced aspect of California employment law. It underscores the importance of thorough and unbiased decision-making processes in employment actions. Both employees and employers must navigate this complex legal terrain with an understanding of how indirect biases can impact employment decisions. Legal counsel is often essential to navigate these complexities effectively.<\/p>\n\n\n\n

            Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen. <\/p>\n\n\n\n

            <\/p>\n\n\n\n

            2511<\/strong>. <\/strong>Adverse Action Made by Decision Maker Without Animus (Cat\u2019s Paw)<\/strong><\/strong><\/p>\n\n\n\n

            <\/td><\/tr>
            <\/td><\/td><\/tr><\/tbody><\/table><\/figure>\n\n\n\n
            \n

            In this case, the decision to [discharge\/[<\/strong>other adverse employment action<\/em>]] [<\/strong>name of plaintiff<\/em>] was made by [<\/strong>name of decision maker<\/em>]. Even if [<\/strong>name of decision maker<\/em>] did not hold any [discriminatory\/retaliatory] intent [or was unaware of [<\/strong>name of plaintiff<\/em>]\u2019s conduct on which the claim of retaliation is based], [<\/strong>name of defendant<\/em>] may still be liable for [discrimination\/retaliation] if [<\/strong>name of decision maker<\/em>] followed a recommendation from or relied on facts provided by another person who had [discriminatory\/retaliatory] intent.<\/strong><\/strong><\/p>\n\n\n\n

            To succeed, [<\/strong>name of plaintiff<\/em>] must prove both of the following:<\/strong><\/strong><\/p>\n\n\n\n

              \n
            1. <\/strong>That [<\/strong>name of plaintiff<\/em>]\u2019s [<\/strong>specify protected activity or attribute<\/em>] was a substantial motivating reason for [<\/strong>name of other person<\/em>]\u2019s [<\/strong>specify acts on which decision maker relied<\/em>]; and<\/strong><\/strong><\/li>\n\n\n\n
            2. <\/strong>That [<\/strong>name of other person<\/em>]\u2019s [<\/strong>specify acts on which decision maker relied<\/em>] was a substantial motivating reason for [<\/strong>name of decision maker<\/em>]\u2019s decision to [discharge\/[<\/strong>other adverse employment action<\/em>]] [<\/strong>name of plaintiff<\/em>].<\/strong><\/strong><\/li>\n<\/ol>\n<\/div>\n\n\n\n
              <\/td><\/tr>
              <\/td><\/td><\/tr><\/tbody><\/table><\/figure>\n\n\n\n

              New December 2012; Revised June 2013, May 2020, November 2020<\/em><\/p>\n\n\n\n

              Directions for Use<\/strong><\/strong><\/p>\n\n\n\n

              Give this instruction if the \u201ccat\u2019s paw\u201d rule is a factor in the case. Under the cat\u2019s paw rule, the person who actually took the adverse employment action against the employee was not acting out of any improper animus. The decision maker, however, acted on information provided by another person who was acting out of discriminatory or retaliatory animus with the objective of causing the adverse employment action. The decision maker is referred to as the \u201ccat\u2019s paw\u201d of the person with the animus. (See Reeves v. Safeway Stores, Inc. <\/em>(2004) 121 Cal.App.4th 95, 100 [16 Cal.Rptr.3d 717]; McGrory v. Applied Signal Technology, Inc. <\/em>(2013)<\/p>\n\n\n\n

              212 Cal.App.4th 1510, 1536 [152 Cal.Rptr.3d 154] [accepting the legal premise that an employer may be held liable on the basis of a non-supervisor\u2019s discriminatory motivation].) The cases have not yet defined the scope of the cat\u2019s paw rule when the decision maker relies on the acts of a nonsupervisory coworker or other person involved in the employment decision.<\/p>\n\n\n\n

              The purpose of this instruction is to make it clear to the jury that they are not to evaluate the motives or knowledge of the decision maker, but rather to decide whether the acts of another person with animus actually caused the adverse action. Give the optional language in the second sentence of the first paragraph in a retaliation case in which the decision maker was not aware of the plaintiff\u2019s conduct<\/p>\n\n\n\n

              that allegedly led to the retaliation (defense of ignorance). (See Reeves, supra, <\/em>121 Cal.App.4th at pp. 106\u2013108.)<\/p>\n\n\n\n

              Element 1 requires that the protected activity or attribute be a substantial motivating reason for the retaliatory acts. Element 2 requires that the other person\u2019s improper motive be a substantial motivating reason for the decision maker\u2019s action. (See Harris v. City of Santa Monica <\/em>(2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; see also CACI No. 2507, \u201cSubstantial Motivating Reason\u201d Explained<\/em>.)<\/p>\n\n\n\n

              In both elements 1 and 2, all of the other person\u2019s specific acts need not be listed in all cases. Depending on the facts, doing so may be too cumbersome and impractical. If the specific acts are listed, the list should include all acts on which plaintiff claims the decision maker relied, not just the acts admitted to have been relied on by the decision maker.<\/p>\n\n\n\n

              Sources and Authority<\/strong><\/strong><\/p>\n\n\n\n

                \n
              • \u201cThis case presents the question whether an employer may be liable for retaliatory discharge when the supervisor who initiates disciplinary proceedings acts with retaliatory animus, but the cause for discipline is separately investigated and the ultimate decision to discharge the plaintiff is made by a manager with no knowledge that the worker has engaged in protected activities. We hold that so long as the supervisor\u2019s retaliatory motive was an actuating . . . cause of the dismissal, the employer may be liable for retaliatory discharge. Here the evidence raised triable issues as to the existence and effect of retaliatory motive on the part of the supervisor, and as to whether the manager and the intermediate investigator acted as tools or \u2018cat\u2019s paws\u2019 for the supervisor, that is, instrumentalities by which his retaliatory animus was carried into effect to plaintiff\u2019s injury.\u201d (Reeves, supra<\/em>, 121 Cal.App.4th at p. 100.)<\/li>\n\n\n\n
              • \u201cWe do not suggest that discrimination must be alone sufficient to bring about an employment decision in order to constitute a substantial motivating factor. But it is important to recognize that discrimination can be serious, consequential, and even by itself determinative of an employment decision without also being a \u2018but for\u2019 cause.\u201d (Harris<\/em>, supra<\/em>, 56 Cal.4th at p. 229.)<\/li>\n\n\n\n
              • \u201cRequiring the plaintiff to show that discrimination was a substantial <\/em>motivating factor, rather than simply a <\/em>motivating factor, more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision. At the same<\/li>\n<\/ul>\n\n\n\n

                time, . . . proof that discrimination was a substantial <\/em>factor in an employment decision triggers the deterrent purpose of the FEHA and thus exposes the employer to liability, even if other factors would have led the employer to make the same decision at the time.\u201d (Harris<\/em>, supra<\/em>, 56 Cal.4th at p. 232, original italics.)<\/p>\n\n\n\n

                  \n
                • \u201cThis concept\u2014which for convenience we will call the \u2018defense of ignorance\u2019\u2014poses few analytical challenges so long as the \u2018employer\u2019 is conceived as a single entity receiving and responding to stimuli as a unitary,<\/li>\n<\/ul>\n\n\n\n

                  <\/p>\n\n\n\n

                  indivisible organism. But this is often an inaccurate picture in a world where a majority of workers are employed by large economic enterprises with layered and compartmentalized management structures. In such enterprises, decisions significantly affecting personnel are rarely if ever the responsibility of a single actor. As a result, unexamined assertions about the knowledge, ignorance, or motives of \u2018the employer\u2019 may be fraught with ambiguities, untested assumptions, and begged questions.\u201d (Reeves, supra<\/em>, 121 Cal.App.4th at p. 108.)<\/p>\n\n\n\n

                    \n
                  • \u201c[S]howing that a significant participant in an employment decision exhibited discriminatory animus is enough to raise an inference that the employment decision itself was discriminatory, even absent evidence that others in the process harbored such animus.\u201d (DeJung v. Superior Court <\/em>(2008) 169 Cal.App.4th 533, 551 [87 Cal.Rptr.3d 99]).<\/li>\n\n\n\n
                  • \u201c[W]e accept Employee\u2019s implicit legal premise that Employer could be liable for [the outside investigator\u2019s] discriminatory motivation if the male executives who actually terminated Employee were merely the cat\u2019s paws of a biased female investigator.\u201d (McGrory v. Applied Signal Technology, Inc. <\/em>(2013) 212 Cal.App.4th 1510, 1536 [152 Cal.Rptr.3d 154].)<\/li>\n\n\n\n
                  • \u201cCertainly a defendant does not conclusively negate the element of causation by showing only that some responsible actors, but not all, were ignorant of the occasion for retaliation.\u201d (Reeves, supra<\/em>, 121 Cal.App.4th at p. 108.)<\/li>\n\n\n\n
                  • \u201cHere a rational fact finder could conclude that an incident of minor and excusable disregard for a supervisor\u2019s stated preferences was amplified into a \u2018solid case\u2019 of \u2018workplace violence,\u2019 and that this metamorphosis was brought about in necessary part by a supervisor\u2019s desire to rid himself of a worker who created trouble by complaining of matters the supervisor preferred to ignore. Since those complaints were protected activities under FEHA, a finder of fact must be permitted to decide whether these inferences should in fact be drawn.\u201d (Reeves, supra<\/em>, 121 Cal.App.4th at p. 121.)<\/li>\n\n\n\n
                  • \u201cOur emphasis on the conduct of supervisors <\/em>is not inadvertent. An employer can generally be held liable for the discriminatory or retaliatory actions of supervisors. The outcome is less clear where the only actor possessing the requisite animus is a nonsupervisory coworker.\u201d (Reeves, supra<\/em>, 121 Cal.App.4th at p. 109 fn. 9, original italics, internal citation omitted.)<\/li>\n<\/ul>\n\n\n\n

                    Secondary Sources<\/h1>\n\n\n\n

                    8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, \u00a7\u00a7 1025, 1026, 1052, 1053<\/p>\n\n\n\n

                    Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The California Fair Employment And Housing Act<\/em>, \u00b6 7:806.5 (The Rutter Group)<\/p>\n\n\n\n

                    2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws<\/em>, \u00a7 41.131 (Matthew Bender) 11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination<\/em>, \u00a7 115.37[3][a] (Matthew Bender)<\/p>\n\n\n\n

                    Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen. <\/p>\n","protected":false},"excerpt":{"rendered":"

                    Adverse Action Made by Decision Maker Without Animus (from a recommendation from or relied on facts provided by another person who had [discriminatory\/retaliatory] intent.) 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