The U.S. 7th Circuit Court of Appeals (whose rulings apply to all Illinois, Indiana, and Wisconsin employers) recently revisited its articulation of the “cat’s paw” theory in supporting a claim that adverse employment action was taken for unlawful, discriminatory reasons. Cat’s paw is a theory that establishes an employer may be held liable for the discriminatory and retaliatory acts of its subordinate employees.
Catrina Bragg was a participant in a 90-day orientation program for newly licensed nurses at Muenster’s Community Hospital. The program was run by experienced RNs, who were responsible for training, supervising, and evaluating participants. The supervisors filled out Orientee Progress Forms to evaluate participants throughout the duration of the program and were assigned a score ranging from 1-25 with each form.
Bragg consistently received low scores on her evaluations. She attended numerous meetings with the supervisors to discuss her low scores. At the end of the program, she was given a position at one of Muenster’s long-term care facilities, with lower pay than a position at the community hospital, where she was originally set to be employed.
Bragg raised concerns to HR regarding several incidents she believed were caused by her supervisors’ animus toward her race when she was transferred to the lower-paying position. She then sued Muenster, asserting claims of racial discrimination in violation of Title VII of the Civil Rights Act of 1964 and retaliation for speaking out against discrimination.
The District Court for the Northern District of Indiana granted summary judgment (dismissal without a trial) in favor of Muenster, dismissing all of Bragg’s claims. She then appealed to the 7th Circuit.
Negative Performance Reviews as Pretext
First, the 7th Circuit analyzed Bragg’s negative performance reviews and found they weren’t a pretextual reason for an adverse employment action.
Specifically, the 7th Circuit found that Bragg couldn’t establish that the performance reviews were lies because she had signed many of the reviews shortly after they were written, and she met with her supervisors to discuss all of her reviews.
Cat’s Paw Theory
Next, the 7th Circuit analyzed Bragg’s cat’s paw argument. The cat’s paw theory occurs: “[W]hen a biased subordinate lacks decision-making power to fire an employee, but ‘uses a formal decision maker as a dupe in a deliberate scheme to trigger a discriminatory employment action,’ we will consider the biased subordinate’s actions as direct evidence of discrimination.”
To make a successful discrimination claim using the cat’s paw theory, Bragg had to show that: (1) her supervisors “actually harbored discriminatory animus against [her]”; and (2) her supervisors’ “input was a proximate cause” of the adverse employment decision. The 7th Circuit found that Bragg didn’t have sufficient evidence to prove discrimination under the cat’s paw theory.
Specifically, the 7th Circuit noted that Bragg submitted no evidence that input from the first supervisor caused her transfer to a lower-paying position because they last evaluated her two months before her transfer. As to the second and third supervisors, who completed the evaluations in the middle and end of Bragg’s program, the 7th Circuit also found that their actions didn’t support a finding that they harbored discrimination animus against Bragg.
In support of the cat’s paw theory, Bragg submitted evidence that one supervisor had mocked a patient’s amputated limb on racial grounds, and another had made a reference to lynching. The 7th Circuit noted that these incidents, though regrettable, didn’t support application of the cat’s paw theory because they weren’t directed at Bragg herself.
As such, Bragg could use these incidents only as circumstantial evidence to support an assertion that discriminatory animus impacted her negative reviews. The 7th Circuit found that such circumstantial evidence wasn’t sufficient.
Specifically, the 7th Circuit noted that: “Such circumstantial evidence might support a racial discrimination claim in other cases, but Bragg’s evidence falls short of making that connection here.”
The 7th Circuit affirmed the District Court’s decision to grant summary judgment in favor of the defendant and dismiss all of Bragg’s claims. Bragg v. Muenster Medical Research Foundation, Inc., 58 F.4th 265 (7th Cir. 2023)
Make sure employees in supervisory or management roles are documenting performance issues with subordinate employees. Supervisors and managers should also meet with subordinates to discuss performance issues shortly after they are noted, and it’s a good idea to present subordinates with a document stating performance issues and require the employee’s signature on the document during the meeting.
It’s also a good idea to ensure that your supervisors, managers, and all employees receive anti-discrimination training in an effort to reduce harmful discriminatory comments, references, and jokes in the workplace.
While the 7th Circuit found that discriminatory incidents toward persons other than Bragg were insufficient to support her discrimination claim, it was indicative that there were racial discrimination problems in the workplace.
This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.