Herbert v. National Amusements Inc

Filing 75

ORDER denying 64 Defendant's Motion in Limine to exclude cat's paw theory of liability. See attached order. Signed by Judge Vanessa L. Bryant on 1/24/2012. (Fernandez, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DANIEL J. HERBERT
PLAINTIFF,

v.
NATIONAL AMUSEMENTS, INC.,
DEFENDANT

:
:
: CIVIL ACTION NO. 3:08cv1945
(VLB)
:
: JANUARY 23, 2012
:
:
:

ORDER DENYING DEFENDANT’s [DOC. #64] MOTION IN LIMINE TO
EXCLUDE PLAINTIFF’S USE OF SUBORDINATE BIAS OR CAT’S PAW
LIABILITY
Defendant has moved to exclude Plaintiff from advancing a
subordinate bias or “cat’s paw” theory of liability under his ADEA and
CFEPA claims. The Defendant points to a recent Second Circuit case for
the proposition that the Second Circuit has never formally recognized the
cat’s paw theory in discrimination cases and has argued that the Supreme
Court’s recent decision in Staub v. Proctor Hosp., ----U.S.----, 131 S.Ct.
1186 (2011) regarding cat’s paw liability should not be applied to Plaintiff’s
ADEA or CFEPA claims. See Nagle v. Marron, 663 F.3d 100, 118 (2d Cir.
2011). In Nagle, the Second Circuit’s analysis was centered on whether a
“cat’s paw” theory of liability should be applied in a Section 1983 context.
Nagle, 663 F.3d at 118 (noting that “several Circuits have held either or
assumed that cat’s paw liability would be available under § 1983”). The
Second Circuit acknowledged that while the recent Supreme Court’s
decision Staub involved discrimination under the Uniformed Services and

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Reemployment Rights Act (“USERRA”) that the Supreme Court indicated
that USERRA was “‘very similar to Title VII’” and then noted that the
Second Circuit has analogized Title VII to Section 1983 cases. Id. (quoting
Stabu, 131 S.Ct. at 1194). The Second Circuit then remanded the question
of whether “cat’s paw” liability should apply to a Section 1983 claim to the
district court. Therefore, the Second Circuit’s decision in Nagle is not
directly on point to whether a theory of cat’s paw liability is applicable in
traditional employment discrimination case.
Although it does not appear that the Second Circuit has formally
recognized the term “cat’s paw,” the Second Circuit and districts courts
within the Circuit have recognized theories of subordinate bias in
employment discrimination cases. See Saviano v. Town of Westport, 3:04cv-522, 2011 WL 4561184, at *7 n.15 (D. Conn. Sept. 30 , 2011) (noting that
while the Second Circuit has not formally recognized the “cat’s paw”
theory, it has “held that bias at any stage of a decision process can taint
the ultimate decision in violation of Title VII”). The Second Circuit in
Bickerstaff v. Cassar Coll., 196 F.3d 435 (2d Cir. 1999) “recognize[d] that
the impermissible bias of a single individual at any stage of the promoting
process may taint the ultimate employment decision in violation of Title VII.
This is true even absent evidence of illegitimate bias on the part of the
ultimate decision maker, so long as the individual shown to have the
impermissible bias played a meaningful role in the promotion process.”
196 F.3d at 450.

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Accordingly, the theory of liability that the “impermissible bias of a
single individual can infect the entire group of collective decision
makers…at least when the decisionmakers are overly deferential to the
biased individuals’ recommendations” is one that is well accepted by
courts within this Circuit. Baron v. N.Y. City Dep’t of Educ., No.06-CV-2816
(FB)(MDG), 2009 WL 1938975, at *6, 8 (E.D.N.Y. 2009) (finding in an ADEA
action that since the evaluations made by allegedly biased subordinate
made up only a portion of the plaintiff’s file that negated “any inference
that the committee that made the termination decision was tainted by [the
subordinate’s] alleged bias”) ; see also, Fullard v. City of New York, 274
F.Supp.2d 347, (S.D.N.Y. 2003) (“[T]he employer will be liable where the
decision-maker ‘rubber stamps' the recommendation of [biased]
subordinates; in such cases, we say that the decision-maker acts as a
conduit of the subordinates' improper motive.” (citations, internal
quotation marks and citations omitted); Britt v. Merrill Lynch & Co., Inc.,
No.08CV5356, 2011WL 4000992, at *8 (Aug. 26, 2011) (considering whether
Plaintiff had alleged facts establishing a cat’s paw theory of liability);
Fullard v. City of N.Y., 274 F.Supp.2d 347, 357 (S.D.N.Y. 2003) (“the bias of
the subordinate will support a finding of liability as long as it played a
substantial role in the final decision”).
Although as Defendant points out the Supreme Court’s decision in
Staub was rendered in an USERRA discrimination case, the Court sees no
reason why Staub’s holding should be limited to the USERRA context.

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First, the Supreme Court expressly indicated in Staubs that USERRA was
similar to Title VII. Second, the Supreme Court’s analysis was predicated
upon underlying principles of agency and tort law which are equally
applicable to all types of employment discrimination. See Meritor Savings
Bank, FSB v. Vinson, 477 U.S. 57, 72 (1986) (finding that Congress intended
courts “to look to agency principles for guidance” when determining
employer liability under Title VII). Lastly, as noted above courts in this
Circuit have already applied theories of subordinate bias within both the
Title VII and ADEA context.
Plaintiff concedes that since Staubs involved a mixed-motive
analysis and does not reflect the ADEA’s “but-for” causation standard as
articulated by the Supreme Court in Gross v. FBL Fin. Servs. Inc., 557 U.S. ----, 129 S.Ct. 2343, 2350 (2009) the Court cannot apply Staubs directly to an
age-discrimination case. However, the Court sees no reason why the
analysis in Staubs regarding subordinate bias cannot be reconciled with
Gross’s but-for causation standard. A recent Tenth Circuit case, Simmons
v. Sykes Enterprises Inc., 647 F.3d 943 (10th Cir. 2011) did just that
reconciling Staub’s holding on subordinate bias with the causation
standard applicable under the ADEA. The Tenth Circuit reasoned first that
the subordinate bias doctrine applied in age discrimination cases and then
second that under Gross liability for subordinate bias could only be
established where the “the subordinate's animus was a ‘but-for’ cause of
the adverse employment action, i.e. it was the factor that made a

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difference.” Id. at 949-50. The Tenth Circuit noted that “[i]n agediscrimination cases…the relationship between a subordinate’s animus
and the ultimate employment decision must be closely linked.” Id. at 949.
The Tenth Circuit then illustrated several examples where a
subordinate or supervisor’s animus might be a ‘but-for’ cause of
termination:
[T]he biased supervisor falsely reports the employee violated the
company's policies, which in turn leads to an investigation
supported by the same supervisor and eventual termination. Or the
biased supervisor may write a series of unfavorable periodic reviews
which, when brought to the attention of the final decision-maker,
serve as the basis for disciplinary action against the employee. But
where a violation of company policy was reported through channels
independent from the biased supervisor, or the undisputed evidence
in the record supports the employer's assertion that it fired the
employee for its own unbiased reasons that were sufficient in
themselves to justify termination, the plaintiff's age may very well
have been in play—and could even bear some direct relationship to
the termination if, for instance, the biased supervisor participated in
the investigation or recommended termination—but age was not a
determinative cause of the employer's final decision.
Id. at 950. The Tenth Circuit noted that while “assuming without deciding
that [the supervisors] were motivated by ageist animus and intended to
have [plaintiff’s] employment terminated, [the court] must still determine
whether [plaintiff’s] age was a ‘but-for’ cause of her termination by asking
whether [the ultimate decision maker] would have fired [plaintiff] but for the
[supervisor’s] alleged bias.” The Tenth Circuit’s application of the
subordinate bias doctrine as articulated in Staub to an ADEA claim under
Gross is persuasive. Since subordinate bias is a theory of liability which
courts in this Circuit has recognized in both the ADEA and Title VII context,

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the Supreme Court’s holding in Staub is applicable to the Court’s analysis.
Consequently the application of Staub’s framework regarding “cat’s paw”
liability to Gross’s but-for causation standard compels the conclusion that
a plaintiff may only establish liability under the ADEA if the plaintiff is able
to demonstrate that the acts taken by an allegedly biased supervisor, who
intended to cause an adverse employment action, were the but-for cause of
the plaintiff’s termination.
Since Plaintiff’s CFEPA age discrimination claim is subject to a
mixed-motive and not a ‘but-for’ causation analysis, the Supreme Court’s
holding in Staub is directly applicable to that cause of action. Accordingly,
Plaintiff may introduce evidence demonstrating that the acts taken by his
allegedly biased supervisor, who intended to cause an adverse
employment action, were the but-for cause of his termination for his ADEA
claim and that those acts were the proximate cause of his termination for
his CFEPA claim.

IT IS SO ORDERED.
_______/s/___________
Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: January 23, 2012

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