Sixth Circuit Applies Cat’s Paw Theory to FMLA Retaliation Claims

May 22, 2017

By Alex E. Jones

In April, the Sixth Circuit ruled that employers can be held liable for Family and Medical Leave Act (“FMLA”) retaliation claims based on the “cat’s paw” theory. The Sixth Circuit has previously applied the cat’s paw theory to other discrimination claims, but this is the first time it has specifically applied it to an FMLA retaliation claim.

Generally, to succeed on a claim for discrimination or retaliation, the decision to take the adverse employment action must be accompanied by some sort of discriminatory/retaliatory intent on the part of the decision maker. The cat’s paw theory side-steps this requirement if a claimant can prove that those who influenced the decision maker to take the adverse employment action had a discriminatory/retaliatory intent.

In Marshall v. The Rawlings Company, LLC, an employee was demoted after she took FMLA leave and then terminated a year later, following a second stint on FMLA leave. The employee alleged she was retaliated against for taking FMLA leave and that the president made this decision based on the influence of two lower-level employees that reported to the president. The district court rejected the claim, reasoning that the president (the ultimate decision maker) was unaware the claimant exercised her rights under the FMLA.

The Sixth Circuit reversed the district court, finding that the president could be liable for retaliation under the cat’s paw theory, despite not having the requisite retaliatory intent. This is the first time the Sixth Circuit has reached such a conclusion. Further, the decision is notable because the cat’s paw theory was applied to multiple levels of supervision. A claimant may now prove retaliation by showing the adverse employment action was taken due to a lower-level employee influencing a mid-level employee who then influenced the ultimate decision maker.  The Sixth Circuit also held the “honest belief” rule does not apply in this case because the decision maker’s honest, reasonable beliefs are irrelevant to the analysis.

This ruling requires employers to proceed with caution when taking any adverse employment action based solely on the recommendation of a subordinate employee. Employers would be wise to always conduct their own independent investigation and document their findings prior to taking any adverse employment action. For further questions or additional guidance contact Rob S. Gilmore or Alan M Rauss.


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