Along with the many fears inherent in modern society, many people associate fear with work. That fear may be fear of discrimination, fear of one’s supervisor, fear of failing, fear of being disciplined, fear of being transferred or the sometimes ultimate fear: getting fired.
Laws such as Washington’s Law Against Discrimination, RCW 49.60, Title VII of the Civil Rights Acts of 1964 and 1990, the Americans with Disabilities Act and the Family Medical Leave Act (to name but a few) are each designed in part to alleviate the fears of employees and protect workers, not just from discrimination, but also from being afraid of work and their supervisors. Title VII in particular (and Washington’s equivalent) goes so far as to impose individual liability for supervisors who engage in discrimination and harassment.1
Another fear commonly associated with employment is fear of retaliation. Retaliation claims typically occur when a supervisor, either individually or in concert with other management, makes a decision to terminate, demote, transfer or otherwise treat an employee differently because the employee engaged in an act protected by statute or the common law. Such protected acts include complaining about harassment or discrimination of oneself or others, addressing workplace safety concerns, filing a workers’ compensation claim or, as recently addressed in the Ninth Circuit case of Poland v. Chertoff,2 filing an age discrimination charge.
While the Poland court addressed retaliation, it did so in a new way that may potentially increase employer fear of employee lawsuits. Poland involved a retaliation claim brought by James Poland against the U.S. Customs Service (USCS) in the U.S. District Court for Oregon. In 1997, Poland filed a complaint of age discrimination with the USCS’s Equal Employment Opportunity counselor, alleging that Poland’s supervisor, James Hillberry, had told him he was too old for career advancement and referred to him and other older workers as “old farts.” Poland further alleged that Hillberry repeatedly stated that USCS personnel policies mandated that “younger agents” be brought into management positions.
A month after filing his initial complaint, Poland filed a reprisal complaint alleging that in retaliation for filing the discrimination complaint, Hillberry changed his mind regarding Poland’s request to reassign an agent under Poland’s supervision. During the preceding 28 months, starting when Poland began reporting to Hillberry, another supervisory employee, Pamela Ewing, wrote four notes to Hillberry or Poland’s file criticizing Poland’s conduct as resident agent in charge of the Portland office. Over the next 14 months, however, after Poland filed his discrimination complaint, Ewing wrote 23 additional notes critical of Poland. Hillberry also denied Poland’s requests for promotions in other office locations.
In early 1999, Hillberry requested that the Customs Service undertake an administrative inquiry into Poland’s performance that resulted in findings agreeing with Hillberry’s allegations that Poland was confrontational, argumentative, unprofessional and ineffective. A review board found inconclusive evidence to support an adverse employment action, but recommended that Poland be transferred. As a result, Poland was transferred by an assistant commissioner in the USCS Office of Investigations to a non-supervisory position in Virginia with the same pay and benefits. Poland elected to take voluntary retirement less than a year later, three years before his mandatory retirement date.
In 2002, Poland sued USCS for violations of the Age Discrimination in Employment Act (ADEA), retaliation and constructive discharge. The District Court rejected Poland’s ADEA claim, but ruled in favor of Poland on the retaliation and constructive discharge theories. USCS appealed.
On appeal, the parties agreed that Poland’s two EEO complaints constituted protected activity and that he suffered two adverse employment actions in being investigated and ultimately transferred to a non-supervisory position after his initial EEO complaint. The parties’ disagreement and the Ninth Circuit’s analysis focused on the causal link between the complaints and the adverse actions.
To prove retaliation, a plaintiff must show that: (1) he engaged in protected activity; (2) he suffered an adverse employment action; and (3) the adverse employment action is causally linked to the protected activity.3 The Ninth Circuit agreed with the District Court that Hillberry’s request for an investigation was a direct result of Poland’s complaint and that Hillberry’s animus could be imputed to USCS.
But the court wrestled with the more difficult question of whether Poland had established the required causal connection between his EEO complaints, Hillberry’s animus and the ultimate decision to transfer Poland. As stated by the court, the situation “where a subordinate employee with bias (like Hillberry) precipitates an investigation that leads to an adverse employment action but an employee without bias makes the final decision to take the adverse action” was one the court had not previously addressed.4
Examining the foregoing question, the court rejected a traditional “but for” causation test and reasoned that, if such a test were used, liability could attach any time a biased employee influenced the process leading to an adverse employment action, even if the biased employee was insulated from the final decision-making process. The court further rejected a theory endorsed by the Fourth Circuit that imputes a subordinate’s discriminatory animus to his or her employer only where the subordinate dominates an investigation such that a final decision is made with blind approval or a rubber stamp of the biased subordinate’s preference, i.e., using an unbiased decision maker as a “cat’s paw.”5
Determining that the Fourth Circuit took the “cat’s paw” method too literally, the Ninth Circuit instead ruled:
[I]f a subordinate, in response to a plaintiff’s protected activity, sets in motion a proceeding by an independent decision maker that leads to an adverse employment action, the subordinate’s bias is imputed to the employer if the plaintiff can prove that the allegedly independent adverse employment decision was not actually independent because the biased subordinate influenced or was involved in the decision or decision making process.6
According to the court, even if a biased subordinate is not a principal decision maker, the biased subordinate’s retaliatory motive will be imputed to the employer if the subordinate influenced, affected or was involved in the adverse employment decision. Based on its new rule, the court affirmed the lower court ruling and determined that Hillberry’s animus had a pervasive influence on the ultimate administrative inquiry that led to Poland’s transfer to a non-supervisory job.
The court justified its new rule as consistent with previous precedent where it imputed liability to employers where managers, even if not the ultimate decision makers, were involved in adverse employment actions.7
The Poland court’s principle of respondeat superior liability may make sense for bigger organizations that have the requisite separation between management and investigative functions. But for some smaller employers that lack multiple departments and layers of supervision, it may be difficult to always completely separate management investigative functions from ultimate decision making.
Moreover, the Ninth Circuit’s approach ignores the possibility that the person with ultimate decision making power may receive a recommendation from a biased supervisor about an employee, conduct his or her own investigation and end up reaching the same conclusion as the biased supervisor, completely independent from any influence of the biased supervisor. Accordingly, an unintended consequence of Poland may be to increase certain employers’ fear of possible liability or at least litigation, even if those employers are abiding by the law.
However, the Poland court’s decision re-emphasizes the importance of independent investigations of adverse and possibly discriminatory employment actions, for employers and the attorneys who represent them. Forcing employers to conduct completely untainted investigations into employee and supervisor complaints that may be influenced by bias may ultimately even assuage employee and employer fears, and result in greater positive changes in the workplace.
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Nick Beermann is an associate at the Seattle office of Jackson Lewis LLP where he practices employment law. He can be reached at 206-626-6435 or by email at Beermann@jacksonlewis.com.
1 See, e.g., 42 U.S.C. § 2000e(b) (defining “employer” to include any “person engaged in an industry affecting commerce” as well as “any agent of such person”); RCW 49.60.040(3) (“any person acting in the interest of an employer”).
2 101 Fair Empl. Prac. Cas. (BNA) 126, 2007 U.S. App. LEXIS 17247 (9th Cir. 2007).
3 Villiarimo v. Aloha Is. Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002).
4 2007 U.S. App. LEXIS 17247 at *15.
5 See Hill v. Lockheed Logistics Mgmt., Inc., 354 F.3d 277, 291 (4th Cir. 2004) (en banc).
6 2007 U.S. App. LEXIS 17247 at *20.
7 See, e.g., Bergene v. Salt River Project Agric. Improvement & Power Dist., 272 F.3d 1136, 1141 (9th Cir. 2001); Galdamez v. Potter, 415 F.3d 1015, 1026 n.9 (9th Cir. 2005).
