The
Age Discrimination in Employment Act (ADEA) prohibits age discrimination. This means that it is illegal for
an employer to take adverse employment action against an employee based
on his or her age.
To make out a prima facie case of age discrimination under the ADEA, a
plaintiff must show (1) “that she was a member of the protected
group of persons between the ages of forty and seventy”; (2) “that
she was subject to adverse employment action”; (3) “that a
substantially younger person filled the position that she sought or from
which she was discharged”; and (4) “that she was qualified
to do the job for which she was rejected.”
However, what happens if the person who takes the ultimate adverse action
– such as a termination – does so based on another’s
recommendation? Recently, our firm was successful in challenging the dismissal
of a claim where a vice president terminated a female worker on the recommendation
of her direct supervisor. In
Godwin v. Wellstar, we successfully introduced evidence that this recommendation may have
been inappropriately biased, the 11th Circuit Court of Appeals in Atlanta
reversed the lower courts grant of summary judgment in factor of the company,
and allowed our client’s age discrimination claim to proceed.
In this instance, the issue focused on the “Cat’s Paw theory”
– where a plaintiff can establish but-for causation even where the
person who ultimately decided to take the adverse employment action was
neutral and unbiased. See
Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999).
Under the Cat’s Paw theory, a plaintiff may establish but-for causation
if she shows that the unbiased decision-maker (here the Vice-President)
followed a “biased recommendation without independently investigating
the complaint against the employee.” Essentially, the person recommending
the termination is using the decision-maker as a mere conduit, or “cat’s
paw” for their discriminatory intent. In the past, courts have tried
to determine whether the ultimate decision was merely acting as a “rubber
stamp.”
In this instance, the court expanded on this concept, noting that an ADEA
plaintiff must show more than that an adverse employment action would
not have occurred in the absence of the action taken by the “recommender”
but that the biased individual’s action also had a “determinative
influence” on the ultimate decision.
Here the court determined that we had in fact introduced sufficient evidence
of a “determinative influence.” This included evidence that
the woman would not have been fired but for the recommendation of her
supervisor; that the Vice President who fired her failed to conduct a
truly independent investigation following the recommendation; that the
Vice President did not verify the information provided by the supervisor;
and that the Vice President had “no direct knowledge” of the
complaints. Thus, we were able to show effectively use the Cat’s
Paw theory to show that the biased individual’s action had a “determinative
influence” on the ultimate decision.