Phillips & Associates Prevails Before Second Circuit in Important Sexual Harassment, Retaliation Case

Attorneys for Phillips & Associates have obtained a victory before the Second Circuit Court of Appeals in a case of first impression claiming sexual harassment and retaliation. Vasquez v. Empress Ambulance Service, Inc., No. 15-3239-cv, slip op. (2d. Cir., Aug. 29, 2016). The plaintiff’s employer had no discriminatory intent, per se, but relied on false information provided by the plaintiff’s co-worker and harasser. In ruling for the plaintiff, the appellate court imputed the co-worker’s discriminatory intent to the employer. This type of situation, in which a low-level employee’s ill intent determines an employer’s actions, is sometimes known as the “cat’s paw” theory.

The term “cat’s paw” comes from “The Monkey and the Cat,” a fable credited to Aesop and later written as a poem by the 17th-century French poet Jean de La Fontaine. A monkey and a cat both notice some chestnuts roasting in the ashes of a fireplace. Some versions of the fable say that both animals are “thievish,” while La Fontaine’s poem only attributes this quality to the monkey. The monkey convinces the cat to use his (or her) claws to pull the chestnuts out of the ashes, offering to split the bounty 50/50. The cat burns his paws while retrieving the chestnuts and does not realize that the monkey is eating them as soon as they come out of the fire. A “cat’s paw” is therefore someone who is misled into doing someone else’s dirty work.

The U.S. Supreme Court endorsed the “cat’s paw” theory in an employment setting in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011). That case involved a claim under the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301 et seq., which prohibits employment discrimination on the basis of military service. The defendant employer terminated the plaintiff, a U.S. Army Reserve member, with no apparent animus toward military servicemembers. The plaintiff demonstrated, however, that his direct supervisors “were hostile to [his] military obligations.” Staub, 131 S. Ct. at 1189. The Supreme Court found that the plaintiff’s military service was a motivating factor in the decision to fire him because of his supervisors’ ongoing efforts to undermine him.

In Vasquez, the Second Circuit applied the “cat’s paw” theory to a sexual harassment claim under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law. The plaintiff began working for the defendant as an emergency medical technician in July 2013. Several months later, a dispatcher who also worked for the defendant “began making romantic overtures,” which the plaintiff repeatedly rejected. Vasquez, slip op. at 3.

By the time the plaintiff reported the matter to a supervisor, the co-worker had already begun undermining her report by telling other employees that they were involved in a romantic relationship. This reportedly included editing text message exchanges between the two of them to make the plaintiff look like the harasser. A human resources representative declined to look at the plaintiff’s evidence, such as the unedited text exchanges. Later that day, she was terminated “for engaging in sexual harassment.” Id. at 5.

Evidence presented by the plaintiff established that the co-worker had made numerous false statements that led to her firing. The trial court concluded, however, that the employer could not be held liable because it had no discriminatory intent. The Second Circuit reversed this ruling, partly based on Staub. It held that the employer negligently failed to consider the plaintiff’s mitigating evidence before making the decision to fire her, relying solely on the co-worker’s falsified evidence. The defendant, it found, was a “cat’s paw” of the co-worker.

At Phillips & Associates, our team of skilled and experienced sexual harassment lawyers advocate on behalf of employees and job seekers in New York City, helping them assert their rights in claims for unlawful employment practices like sexual harassment and sex discrimination. To schedule a free and confidential consultation to discuss your case, contact us today online or at (212) 248-7431.

More Blog Posts:

Lawsuit in New York State Court Alleges Sexual Abuse by Manhattan Doctor, New York Employment Attorney Blog, July 15, 2016

Report Highlights Sexual Harassment, Abuse of Patients by Doctors in New York and Around the Country, New York Employment Attorney Blog, July 8, 2016

Sexual Harassment Regulations for New York City Taxi Drivers Proposed, then Withdrawn, New York Employment Attorney Blog, June 15, 2016

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