CLIENT ALERT / Maine Court Adopts "Cat's Paw" Theory - Increased Risks in Employment Litigation Print

The Maine Supreme Court has formally adopted the "cat's paw" theory of liability in a whistleblower case and applied it to public employers. The decision, Walsh v. Town of Millinocket, 2011 ME 99 (September 8, 2011) reinvigorates this concept and by implication makes the “cat’s paw” analysis applicable to employment discrimination claims generally. The decision stands for the following proposition:

"An improper motive or discriminatory animus of one member of a multi-member council or commission may create an actionable claim against the governmental entity if the plaintiff proves, and the jury finds, that the improper motive or discriminatory animus was a motivating factor or a substantial cause for an adverse employment action taken against a plaintiff who is a member of a protected class or who has engaged in a protected activity". (Walsh decision at pg. 15).

It is likely that this analysis will impact all employment-related claims of unlawful discrimination in Maine. The "cat's paw" theory has been around for some time and involves situations where there is no claim (or insufficient evidence) that the actual decision-maker held any discriminatory animus that caused the adverse employment decision, but the discriminatory animus of other employees is sufficient to find employer liability where the jury concludes that the discriminatory animus by the non-decision-maker employees "influenced" the decision-maker. It is this "influence", under the cat's paw analysis, that becomes the "unlawful" motivating factor leading to the adverse employment decision. The "cat's paw" theory has been historically applied to situations where a supervisor's unlawful animus is imputed to an otherwise objective/lawful adverse employment decision by the actual decision maker (usually the personnel/human resources director).

The cat's paw theory was recently applied by the United States Supreme Court in a Uniformed Services Employment and Reemployment Rights Act (USERRA) case applicable to a private employer, and the Maine Law Court’s decision extends this analysis to public employers and the decisions of elected councils and commissions.

This decision will certainly refocus plaintiff’s counsel toward the "cat's paw" concept as it applies to all employment-related claims, and will probably expand the scope of discovery to pursue some "improper motive or discriminatory animus" of non-decision-maker employees. This will therefore make it easier for a claim to get to a jury, and increase the costs associated with litigation. A particular insidious effect may be the settlement of claims that have no merit based on risks created by the decision and an increase in meritless claims as a result.

To combat potential cat’s paw claims, it is critical that performance documentation by supervisory personnel be followed in order to clearly demonstrate the objective nature of any adverse employment action. Supervisors should be trained on this performance management and documentation either in-house or by legal counsel.

If you have any questions, please don’t hesitate to contact

any of the attorneys at TMF to discuss this or any other legal matter.

 

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If you have any questions, please don’t hesitate to contact

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