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.