On October 15, 2015, the U.S. Court of Appeals for the 7th Circuit affirmed an order of summary judgment in a lawsuit in which a terminated employee alleged age and disability discrimination under the ADEA and ADA as well as retaliation under the FMLA. Woods v. City of Berwyn, No. 13-3766 (7th Cir., 10-15-2015). The former employee, a Fire Department Lieutenant, filed a complaint in federal court in which he alleged employment discrimination and retaliation under the cat’s paw theory of liability, which applies in an employment discrimination case when a biased subordinate who lacks decision-making power uses the formal decision-maker as a dupe in a deliberate scheme to trigger a discriminatory employment action. Under the cat’s paw theory, the discriminatory animus of the non-decision-maker must cause the adverse employment decision. The decision-maker’s exercise of her own judgment alone does not break causation. However, if an unbiased decision-maker conducts an independent investigation of the information supplied by the biased employee, and, based on the investigation, determines that the adverse action is justified, then there is no causation.
In this case, there was a formal evidentiary hearing conducted by a three-member panel, upon which the Board relied to support its termination decision. The hearing obviated causation because the Board did not rely on the information presented by the allegedly biased non-decision-maker, but, instead, based its decision on independent evidence and testimony. Therefore, the former employee could not prevail under the cat’s paw theory.