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The Fifth Circuit Clarifies Causation Standards in "Cat's Paw" Retaliation Cases

On February 10, 2017, the Fifth Circuit court of appeals decided Fisher v. Lufkin Industries.

The plaintiff in Fisher, an African-American man, alleged that he was fired for making a good faith complaint of racial discrimination. In other words, Fisher alleged that he was fired for complaining that someone had discriminated against him because of his race.

In a typical retaliation case, the plaintiff makes a complaint against someone, usually a supervisor, and the supervisor against whom the complaint was made takes an adverse employment action against the plaintiff. If the plaintiff in a typical case can prove that the supervisor took the adverse employment action because of the plaintiff's complaint, the plaintiff should win the case.

Fisher, however, is not a typical case. Fisher complained to Lufkin's human resources that his direct supervisor, Saxton, had made a racially harassing comment to him. Lufkin conducted an investigation, but determined that the comment was not motivated by Fisher's race.

Fisher's white co-worker, Rhoden, took exception to the fact that Fisher made a complaint of race discrimination against Saxton. Rhoden, therefore, complained to Saxton supervisor, Jinkins. At some point during this conversation, Rhoden and Jinkins discussed the fact that Fisher had been selling pornographic DVDs to co-workers while at work. Jinkins decided to conduct a "sting operation," and asked Rhoden to buy one of Fisher's pornographic DVDs. The first DVD that Rhoden bought from Fisher was blank, but Jinkins considered the second to be pornographic.

The company then conducted an investigation into what it claimed was Fisher's unauthorized business of selling pornography at work. Fisher was somewhat uncooperative in the investigation, and eventually left the work site while Lufkin officials were trying to search his vehicle. Fisher claimed he had to go home to care for his wife, who was ill. Several days later, and after several Lufkin officials got involved, Lufkin fired Fisher in a letter that Jinkins signed. Lufkin claimed only that it fired Fisher for a "serious violation of company policy."

Fisher sued and the case eventually went to trial. After hearing the evidence, the judge essentially found that, while Fisher's complaint may have motivated Lufkin's decision to fire him, it was Fisher's lack of cooperation into his pornographic DVD business that caused Lufkin to fire him. In other words, even if Lufkin was initially motivated by Fisher's complaint (which would have been illegal), it was Fisher himself who caused his termination because he was uncooperative. As a result, the trial court entered judgment against him, and Fisher appealed.

The issue on appeal was whether or not the trial court erred in dismissing Fisher's lawsuit. The Fifth Circuit reversed the judgment of the trial court and revived Fisher's case.

The Court first held that Fisher had proven a retaliation case using a "cat's paw" analysis. That is, Fisher proved that Rhoden's and Jinkin's retaliatory intent-they were angry that Fisher made the complaint about Saxton-influenced Lufkin to fire Fisher. This is what the law calls a "cat's paw" case: while the decisionmaker may not have had discriminatory or retaliatory intent, someone with a bad intent has influenced the decisionmaker. Under those circumstances, the law allows an employee to sue.

The only remaining issue was whether Fisher had enough evidence to prove that Rhoden's and Jinkin's retaliatory intent caused his termination, and that it was not his lack of cooperation into the investigation that caused his termination. The court held that he did. For that analysis, the court discussed the issues of "proximate cause" and "superseding cause."

Specifically, and relying on a 2011 Supreme Court case called Staub v. Proctor Hospital, the court noted that:

"Fisher's lack of cooperation with an investigation that was launched for retaliatory purposes was inextricably tied to his coworker's and supervisor's retaliatory animus. It would be implausible, in light of this record, to conclude that Rhoden's retaliatorily motivated initial complaint and Jinkins's subsequent efforts to initiate and pursue a retaliatory investigation were so "remote" as to not be the cause of the ensuing discipline of Fisher. Rhoden's and Jinkins's retaliatory actions therefore served as a proximate cause of Fisher's termination."

In addition, the court held that Fisher lack of cooperation was not a superseding cause. The court notes that a superseding cause is truly "superseding," meaning it broke the causal chain that starts with the retaliatory intent, only if it is a "cause of independent origin that was not foreseeable." Here, the court finds, "[w]hile we do not endorse Fisher's response, we view his mild resistance to a retaliatory investigation as entirely foreseeable." In this regard, the court drops a helpful footnote, pointing out that

"[T]o shield employers from liability for adverse actions taken in response to such resistance would be to incentivize supervisors motivated by retaliatory animus to initiate groundless investigations with the purpose of causing the targeted employees to resist them, thereby leading to the employer's adverse actions. We decline to provide such an incentive."

Because it held that Fisher proved that a retaliatory intent motivated his supervisors' acts, and "but for" those acts, Fisher would not have been fired when he was, the court reversed the district court's judgment against Fisher and remanded the case to the trial court.

The Fisher case is important for its teaching on proving causation in retaliation cases. Here's hoping that it helps those conscientious working people obtain justice for retaliation in response to their protests against their employer's unlawful conduct.

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