University Professor’s Age Bias Claim Rejected Under ‘Cat’s Paw’ Theory of Liability
A Bradley University professor who was removed as a department chair filed an Age Discrimination in Employment Act (ADEA) claim under the “cat’s paw” theory of liability (i.e., a supervisor with no discriminatory animus was manipulated by someone who harbors such animus). The U.S. 7th Circuit Court of Appeals (which covers Wisconsin employers) threw out the claim, however, because the ultimate decision-maker conducted an independent investigation without relying on the biased supervisor’s statements.
Amit Sinha was an associate professor and chair of the finance and quantitative methods (FQM) department at Bradley University’s business college in Peoria, Illinois. Walter Zakahi was the university provost and senior vice president for academic affairs at the time. He had authority to remove Sinha as a department chair.
In 2016, an FQM department faculty member accused Sinha of sex discrimination. A faculty grievance committee and Title IX investigators performed probes and let Zakahi know there was severe dysfunction within the FQM department. But, the Title IX investigation didn’t reveal any evidence of sex discrimination by Sinha.
To address and mitigate the severe dysfunction in the FQM department, the grievance committee and the Title IX investigators each stated Sinha should be removed as department chair. On March 22, 2017, Zakahi removed him as the department leader.
Sinha then filed the lawsuit alleging Bradley University had unlawfully retaliated against him for declining Darrell Radson’s requests to implement age-discriminatory policies against older faculty members. Radson was the business college dean at the time and Sinha’s supervisor, but only Zakahi had authority to remove Sinha as department chair.
Sinha alleged a cat’s paw theory of liability against Bradley University stating:
- Radson concocted a false narrative about him to Zakahi; and
- Zakahi relied on Radson’s lies to conclude he was the cause of the department’s dysfunction and should be removed.
The term “cat’s paw” comes from a fable by Aesop, which was put into verse by Jean de La Fontaine in 1679 and brought to the courts by Judge Richard Posner in 1990. In the fable, a monkey flatters a cat in order to get the cat to retrieve chestnuts from a fire. The cat burns his paws in the process, and the monkey makes off with the chestnuts and leaves the cat with nothing.
The district court dismissed Sinha’s case in Bradley University’s favor, and he appealed.
7th Circuit’s Ruling
The 7th Circuit recited the elements an employee must prove to succeed on an ADEA claim: (1) He must be 40 years of age or older, and (2) “but for” his age, he wouldn’t have been removed as department chair. Furthermore, the court stated an individual may prevail on his ADEA claim by invoking the cat’s paw theory of liability.
As noted, the cat’s paw theory occurs when a biased supervisor who doesn’t have decision-making authority uses the decision-maker as a dupe in a scheme to discriminate against the employee. For example, the biased supervisor could make false statements to the decision-maker to get the employee fired.
To show age-based discrimination under the “cat’s paw” theory, the 7th Circuit noted Sinha must prove (1) the biased supervisor “actually harbored discriminatory animus against him” and (2) the supervisor’s scheme proximately caused the firing. Furthermore, the fact the decision-maker conducted an independent investigation and rendered a final decision doesn’t mean there’s no liability under the theory. For example, if the independent investigation relies on facts provided by the biased supervisor, then the company may still be liable.
To avoid liability under the cat’s paw theory, the decision-maker needs to conduct the probe without relying on a single source of information and perform an independent investigation into the facts relevant to the decision. Moreover, if the employer’s investigation determines firing the employee is necessary for reasons unrelated to the supervisor’s original biased action, then the employer won’t be liable.
The 7th Circuit decided Sinha couldn’t prove Radson proximately caused his removal as chair because Zakahi drew a conclusion independent of any alleged influence by the biased supervisor. Zakahi said he removed Sinha based on the faculty grievance committee and Title IX reports, which highlighted the department’s toxic and dysfunctional culture. Moreover, six other faculty members were interviewed for the report, so the facts didn’t come solely from Radson.
Finally, Zakahi relied on his experience to conclude the department needed new leadership. Consequently, Sinha’s cat’s paw theory of liability failed. Sinha v. Bradley Univ., 995 F.3d 568 (7th Cir., 2021).
Generally, when you take an adverse employment action against an employee, you can avoid the cat’s paw theory of liability by:
- Investigating the matter without relying on just one single source of information;
- Conducting an independent investigation into the facts relevant to the decision;
- Paying attention to potential bias from the employees from whom you’re gathering facts; and
- Making sure the reasons for the adverse action are documented, necessary, and unrelated to the biased employee’s actions.
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.