Employers Be Careful Who You Believe When it is a Case of “He Said She Said”

Written by Robert G. Brody and Katherine M. Bogard on November 9, 2016

In Vasquez v. Empress Ambulance Service, Inc., the federal Second Circuit Court of Appeals, held that an employee’s retaliatory intent may be imputed to an employer when the employer’s negligence gives effect to the employee’s retaliatory animus and adversely effects the victim. In essence, the Second Circuit extended the “cat’s paw theory” to cover discriminatory animus of a rank and file employee to the employer’s negligent actions.

What is Cat’s Paw?

The cat’s paw theory refers to a situation in which an employee is subjected to some adverse employment action by a supervisor who himself has no discriminatory motive, but who has been manipulated by a subordinate. That subordinate supplies the discriminatory motivation when he/she intends to bring about the unlawful adverse employment action.

When the Victim Becomes the Accused

In this case, Vasquez was an ambulance EMT and one of her co-workers, a dispatcher, repeatedly asked her for a date. She consistently declined.  One evening, in an act of gross desperation, the dispatcher sent Vasquez a text message of his genitalia with a question “wat u think.”  Vasquez did not respond and immediately reported the photo to her supervisor.  The supervisor promised to deal with the situation and asked Vasquez to draft a formal complaint.  While she was drafting the complaint, the dispatcher walked in and asked her if she was reporting him.  The dispatcher then asked a co-worker to lie and tell management that he and the plaintiff had been engaged in a relationship.  The co-worker refused.  In a final effort to avoid being caught, the dispatcher altered a text message chain to make it appear he had been having a sexual relationship with Vasquez.  Management interviewed the dispatcher and then Vasquez.  Management, accepting the dispatcher’s altered text messages as true, terminated Vasquez for sexually harassing the dispatcher.  Despite Vasquez’s pleas, management refused to look at Vasquez’s phone to see the real text message chain.

The plaintiff brought suit alleging she was wrongfully terminated in retaliation for complaining of sexual harassment. At the trial court, the employer moved to dismiss the complaint; and the court granted the motion holding the dispatcher’s retaliatory intent could not be attributed to the employer and therefore the employer had not engaged in retaliation.

The Holding

The Second Circuit reversed the lower court. It held an employer may be held liable for an employee’s animus under a “cat’s paw theory” regardless of the employee’s lack of management responsibility within the organization, if the employer’s own negligence gives effect to the employee’s animus and causes the victim an adverse employment action. Under the facts of the case, the Court found reasonable minds could find the employer acted negligently by failing to treat the dispatcher with skepticism, by failing to review Vasquez’s text messages, and by failing to carefully investigate the chain of events.

Concern for Employers

This decision should cause concern for employers. Although the Court made clear that an employer can still ‘get it wrong’ without incurring liability under Title VII, but it cannot get it that wrong.  Where the employer’s error reaches the level of negligence, the employer can be liable for a non-management employee’s acts.  From a practical standpoint, this creates a challenge for employers.  For instance, while an investigation is required when a complaint of harassment arises, how much prodding does the employer have to do to determine which version of the “he said she said” story is credible?  Where does negligence begin and just “getting it wrong” end?  Practically speaking, this is no bright line to follow.  The best action is a prompt and thorough neutral investigation where all facially credible evidence is considered. The decision also serves as a cautionary tale for employers when believing one employee to a fault without first fully weighing both sides.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.

 

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About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More

Kate Bogard is an Associate with Brody and Associates, LLC. She works on both Labor and Employment Law matters. Learn More