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Cat’s Paw Theory Applied to Title VII

On August 29, 2016, the Second Circuit Court of Appeals, New York’s highest federal court, decided a case which adopted the so-called “cat’s paw” theory of liability for Title VII cases.  As discussed in this employment law blog, although the cat’s paw theory has been recognized in other employment cases, it has been unsettled as to whether the theory applied for Title VII cases.

In Vasquez v. Empress Ambulance Service, Inc., the plaintiff worked as an EMT for the defendant company.  Shortly after her hire, one of the company’s dispatchers began making “romantic overtures” to Vasquez.  Eventually, the dispatcher asked Vasquez to go out with him and, when she said she had a boyfriend, he sent her a picture of his erect penis.  The next day, Vasquez complained to her supervisor about the dispatcher’s conduct.

The dispatcher saw Vasquez making her complaint and asked a co-worker to tell their supervisor that he and Vasquez were in a romantic relationship, but she refused.  Vasquez offered to give the supervisors proof of the dispatcher’s messages to her, but they refused.

The dispatcher then took further action to undermine Vasquez’s allegations, including doctoring text messages.  Based on the doctored evidence and the dispatcher’s statements, the company concluded that it was Vasquez who had harassed the dispatcher and that she engaged in an “inappropriate sexual relationship” with him.  The company fired her.

Vasquez sued the company, but the trial court dismissed the case holding that the dispatcher’s “retaliatory intent could not be attributed” to the company.

On appeal, Vasquez argued that the cat’s paw theory should be applied to her case.  The cat’s paw theory was first applied in an employment case by the Supreme Court several years ago, but in a military service discrimination case.  The cat’s paw theory “refers to a situation in which in an employee is fired or subjected to some other adverse employment action by a supervisor who himself has no discriminatory motive, but who has been manipulated by a subordinate who does have such a motive and intend to bring about the adverse action.”  In other words, where a supervisor rubber stamps an employment decision which has been tainted with discriminatory intent at a lower level, the plaintiff can sue the employer.

In Vazquez, the Second Circuit recognized that the Supreme Court previously used the cat’s paw theory, that sister circuit’s adopted the theory in Title VII cases, and that the theory is in “accord” with prior precedent.  Accordingly, the Second Circuit held that the cat’s paw theory is an acceptable theory of liability under Title VII, the federal employment anti-discrimination statute.

Further, the Second Circuit held that the cat’s paw theory can apply when a co-worker harbors the discriminatory or retaliatory intent, but only if the company was negligent in preventing the animus from tainting the employment decision.  Applying these legal holdings to the Vasquez case, the Court held that “a reasonable jury could find that [the company] acted negligently in terminating Vasquez solely on the basis of [the dispatcher’s] accusations.  Thus, the Court vacated the trial court’s decision and remanded the case for further proceedings.

If you have questions about the Vasquez decision, the cat’s paw theory, or discrimination or retaliation in general, contact the experienced Long Island employment lawyers at Famighetti & Weinick, PLLC, at 631-352-0050 or on our website at

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