Michael W. McConnell

“ Indeed, such claims have the salutary effect of encouraging employers to verify information and review recommendations before taking adverse employment actions against members of protected groups--particularly if, as we have held, an employer can escape liability entirely by performing an independent investigation. See English, 248 F.3d at 1011. Construing the definition of an "employer" to permit subordinate bias claims therefore serves Title VII's "deterrent purpose." ”

“ Moreover, a lenient "may have affected" standard that punishes employers for any "input"--no matter how minor--weakens the deterrent effect of subordinate bias claims by imposing liability even where an employer has diligently conducted an independent investigation.
At the opposite extreme, the Fourth Circuit has held that an employer cannot be held liable even if a biased subordinate exercises "substantial influence" or plays a "significant" role in the employment decision. ”

“ This standard apparently contemplates that any "influence," the reporting of any "factual information," or any form of "other input" by a biased subordinate renders the employer liable so long as the subordinate "may have affected" the employment action. Such a weak relationship between the subordinate's actions and the ultimate employment decision [p487] improperly eliminates a requirement of causation. See Ellerth, 524 U.S. at 745 (construing Title VII "to accommodate the agency principle of vicarious liability for harm caused by misuse of supervisory authority" (emphasis added) ) . ”

“ We see no reason to limit subordinate bias liability to situations that closely resemble the "cat's paw," "rubber stamp," "conduit," "vehicle," or other metaphors that imaginative lawyers and judges have developed to describe such claims. ”

“ Grado's Racial Bias The district court held, and we agree, that the EEOC has raised a genuine issue of fact concerning Mr. Grado's racial animus. In general, "isolated racial comments" are insufficient to establish pretext unless they "can somehow be tied to the employment actions disputed in the case at hand." ”

“ Peters is black. She therefore could not have acted for racially discriminatory reasons. For the EEOC to prevail, it must make not only a factual showing that Mr. Grado harbored racial animus toward black employees, but also a convincing legal claim that his racial animus should be imputed to BCI despite the fact that Mr. Grado had no power to terminate anyone.
A. Subordinate Bias Liability Other courts have recognized claims under Title VII based on the bias of a subordinate, often using the terms "cat's paw" or "rubber stamp" to describe the theory. ”

“ We find ourselves in agreement with the Seventh Circuit, which has rejected the Fourth Circuit's approach as "inconsistent with the normal analysis of causal issues in tort litigation." Lust v. Sealy, Inc., 383 F.3d 580, 584 (7th Cir. 2004) . ”

“ Grado caused the termination. Yet Mr. Grado reported several additional facts about his conversations on Friday afternoon. First, he told Ms. Edgar that he had learned, through Mr. Katt, that Mr. Peters was already planning to call in sick two days later, in violation of company policy. Second, he reported that in their phone call Friday afternoon, he asked Mr. Peters to describe his plans, affording an opportunity for Mr. Peters to explain his scheduling conflict. Third, he reported that Mr. Peters angrily replied that it was "none of [your] business," and was "yelling" during the discussion. ”

“ We will affirm "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact" and BCI is entitled to a judgment as a matter of law. ”

“ Katt to direct Monica Lovato, a Hispanic merchandiser, to work one of her days off. Ms. Lovato planned to celebrate her birthday that weekend, and she told Mr. Katt she wanted both days off, but Mr. Katt insisted and tried to accommodate her schedule as much as possible. That weekend Ms. Lovato never showed up to work as directed, even after Mr. Katt paged her repeatedly. When he was informed that Ms. Lovato had disobeyed an order to come into work, Mr. Grado never inquired about her reasons. Instead, Mr. Grado [p483] remarked, "You can't make somebody work one of their days off." ”

“ Grado subjected black employees to greater scrutiny and more serious discipline than Hispanic employees. Mr. Wilson, who is black, says that Mr. Grado "continually demeaned me and threatened to replace me" but always "treated Hispanic Merchandisers with respect." Id. at 185.
Mr. Wilson also "recall [ed] many race-based remarks made to me by Cesar Grado during work hours." Id. at 184. According to Mr. Wilson, Mr. Grado told jokes about black men dating Anglo women, and stated that "Black guys [do] not look good in trucks, they should drive Cadillacs." ”

“ If you do not come to work, it could lead to insubordination and could lead to termination." Id. at 58. They also agree that the conversation ended with Mr. Peters telling Mr. Grado, " [D] o what [you] got to do and I'll do what I got to do." Id. Mr. Peters claims that he intended this statement as a way to end the conversation without a confrontation. Mr. Grado interpreted it as open defiance, and a firm intention to disobey the order to come to work on Sunday.
[p480] Late in the afternoon on Friday, Mr. Grado again contacted Ms. Edgar in Phoenix. ”

“ Pederson wrote, "Stephen did not show up for work on 9/30." Id. Only later did BCI characterize its decision to fire Mr. Peters as hinging on his defiant conduct over the phone, rather than on his absence. ”

“ Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 288 (4th Cir. 2004) (en banc) . Our sister circuits overwhelmingly have endorsed some version of these doctrines. See Galdamez v. Potter, 415 F.3d 1015, 1026 n.9 (9th Cir. 2005) ”

“ Edgar honestly believed that Mr. Peters was guilty of insubordination on Friday, September 28. Citing our statement in Kendrick v. Penske Transportation Services, Inc., 220 F.3d 1220, 1231 (10th Cir. 2000) , that pretext must be evaluated by "look [ing] at the facts as they appear to the person making the decision to terminate plaintiff," the district court concluded that any factual disputes concerning the Friday conversation were immaterial because Ms. Edgar correctly applied BCI's policy concerning insubordination to the facts as she understood them. Mem. Op. ”