Just (don't) do it: A warning against 'cat's paw' retaliation

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Rich Meneghello, BridgeTower Media Newswires

The Oregon Court of Appeals recently revived a whistleblower retaliation claim filed against local sportswear giant Nike by adopting a novel legal concept known as the “cat’s paw” theory. Consider this summary of the case and gain a better understanding of this theory to avoid running into legal trouble with employees.

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Electrician jolted by termination

Douglas Ossanna began working at Nike’s world headquarters in Beaverton in 2007, first as a licensed electrician in the company’s maintenance department. The trouble began a few years later when Ossanna claims that he discovered several apprentices working without direct supervision as required by their community college training program. He claims that he reported his concerns to his direct supervisor, Dan Delgado.

Similar concerns arose in 2011 when Ossanna reportedly saw unsupervised apprentices performing electrical work that he believed created a substantial risk of electrocution or other serious injury. Although Delgado assured him each time that the apprentice program was being run in compliance with state regulations, Ossanna claims that he did not observe any significant changes in response to his concerns.

Around that time, Mark Treppens began working as Nike’s maintenance operations manager. He soon learned about Ossanna’s safety concerns, and in fact discovered that someone had overheard Ossanna discussing plans with a fellow employee to file a complaint with Oregon OSHA. A short time later, a middle management position opened up and Ossanna applied for it; Treppens rejected him for that promotion and Ossanna believed it was because of his safety reports. That didn’t deter Ossanna, however; he soon reported his safety concerns directly to the apprenticeship program administrator, and followed through by filing a safety complaint with Oregon OSHA.

A few months later, while Nike’s campus was in “power down” mode for the holidays, Ossanna happened to be on site on his day off to help two contractors access an athletics building to complete a project. While there, he invited them (and his son who lived nearby) to shoot baskets in the gym, and the four of them shot hoops for 20 minutes or so. Delgado and Treppens learned about these athletic escapades and confronted Ossanna, going so far as to imply that he had damaged the gym’s newly varnished floor by playing on it while the building was in power mode.

Delgado and Treppens conducted an investigation and concluded that Ossanna had committed a serious breach of trust and violated Nike’s code of ethics and other employment policies by using the gym while the building was closed. They recommended termination to Nellie St. Jacques, the facilities director, and she agreed with their recommendation and made the final decision. After being fired, Ossanna sued Nike for retaliation, alleging wrongful termination because he had blown the whistle about safety complaints. He lost at the trial court level, but asked the Oregon Court of Appeals to review his case.

‘Cat’s paw’ theory, explained

Ossanna argued to the court that, even if St. Jacques herself had not personally harbored a retaliatory motive to terminate him, she based her decision to terminate upon the recommendation from Treppens and Delgado, who did have such a retaliatory motive. Because their recommendation was tainted, he argued, the final decision should be found to be tainted as well. This novel concept is called the “cat’s paw” theory.

The theory is named after one of Aesop’s fables, in which a clever monkey flatters (or in some versions of the story, forces) a naive cat into snatching chestnuts out of a fire; the monkey quickly eats them, leaving the cat with a burnt paw and no chestnuts. In the employment law context, it refers to any situation where a well-intentioned but unwitting supervisor is manipulated by a subordinate employee who harbors some nefarious motive, resulting in the supervisor unintentionally acting improperly toward some other worker.

First coined in a 1990 opinion by respected federal court judge, Richard Posner, the theory allows plaintiffs to advance claims if they can show that the supervisor was used as a conduit of the subordinate employee’s prejudice. In those cases, the prejudice can be imputed to the employer, and the employer can be ultimately held liable for the discrimination or retaliation, even though it originated with a low-level subordinate.

No Oregon state court had ever explicitly adopted the cat’s paw theory – until the Court of Appeals heard Ossanna’s case and ruled in his favor on Jan. 31. It concluded that a plaintiff can prove whistleblower retaliation if he or she can show that the protected activity “caused” the discrimination, and that it was not necessarily necessary to prove that the person who made the final decision actually had that protected activity in mind when carrying out the termination. The Court of Appeals concluded: “the cat’s paw or subordinate bias theory is the law in Oregon,” and revived his case.

Follow proper investigation procedures

This case offers a reminder that employers should thoroughly investigate allegations (and defenses) before taking disciplinary action against one employee in response to the findings of another. Ensure that such an investigation is impartial and thorough, and that the final decision maker documents and considers all claims and all possible evidence raised by all parties. In other words, a final decision maker can’t blindly rely on the findings of other employees (even supervisors). This person needs to poke around a little bit to find out if there are potential biases that could be clouding the judgment of those who are making recommendations, because the final decision maker will be held accountable if the recommendation was tainted by an impure motive.

If one acts in good faith, performs a reasonable, non-negligent investigation, and arrives at a conclusion supported by objective evidence, liability for any disciplinary action should not attach. This should provide comfort when difficult decisions must be made, especially where credibility is at issue in “he-said, she-said” swearing contests.