Reflections on Staub: The Impact
of Supervisors with Malice or
some other Axe to Grind
Problem Managers take you down
Even if they Don’t Directly Manage
New Challenge for the Discipline Process
When Buck, the Vice President of HR at Proctor Hospital, fired Vincent Staub from his position as angiography technician, she drew upon a negative assessment from Staub’s supervisor and complaints from Staub’s previous co-workers, but did not speak with other co-workers. Nor did she know that another supervisor, Mulally, had wanted Staub fired. Buck did not take into account Staub’s membership in the army reserves. Staub grieved the discharge and claimed that the real reason he was sacked was because Mulally couldn’t stand him and his periodic time off for reserves drills and training. Eventually Staub sued under USERRA, alleging at trial that Mulally and the other supervisor, Korenchuk, were hostile to his military obligations and plotted to get him fired.
The trial court received a jury instruction from Staub under the “cat’s paw” theory. The jury was instructed that the hospital would be liable under USERRA if Mulally and Korenchuk had “exercised such singular influence over” Buck that “they were the real decisionmakers.” The cat, i.e., Buck, had been influenced by the monkey, i.e., Mulally and Korenchuk, to put her hand in the fire, implement a dismissal. Buck did the dirty work and they avoided the responsibility.
When the hospital lost and appealed, the Seventh Circuit reversed, holding that the trial court should not have admitted evidence of the “monkey’s” hostility before determining that Mulally or Korenchuk actually had exercised “singular influence” over Buck’s decision. The appeals court found no such influence because Buck’s dismissal of Staub was not based solely on their actions.
In a unanimous opinion authored by Justice Scalia, the Supreme Court reversed. Staub v. Proctor Hospital, __U.S.__, 09-400 (March 1, 2011). There was no statutory basis for the “singular influence” standard. Under USERRA’s discrimination provisions, the employee presents facts showing that his membership in the uniformed services was a motivating factor in the dismissal, and the employer must prove that he would have been fired “in the absence of such membership.” 38 USC §4311.
To the High Court it was enough that the hospital had made Mulally and Korenchuk supervisors, and their actions would be imputed to the hospital as a result. Thus the employer was liable because its agents committed improper actions with discriminatory intent. The Court resorted to tort law, stating "it is axiomatic under tort law that the exercise of judgment by the decisionmaker [Buck] does not prevent the earlier agent's action (and hence the earlier agent's discriminatory animus) from being the proximate cause of the harm.”
The argument that Buck acted independently was unavailing; she should have checked out the supervisors’ disciplinary write-ups and evaluations to determine whether they were justified. The Court added:
Proctor’s approach would have an improbable consequence: If an employer isolates a personnel official from its supervisors, vests the decision to take adverse employment actions in that official, and asks that official to review the employee’s personnel file before taking the adverse action, then the employer will be effectively shielded from discriminatory acts and recommendations of supervisors that were designed and intended to produce the adverse action.
As a result of the Supreme Court’s reversal the jury verdict was reinstated. The verdict of course reflected a determination by the jury that in fact the real reason Staub was fired was his supervisors’ hostility toward his military reserve status.
Questions posed by Staub:
1. How vigilant must employers be in investigating supervisory recommendations and requests that problem employees be disciplined?
2. Had Buck uncovered Mulally’s animus toward Staub, she probably would have deferred the dismissal of Staub. What if the hostility toward a subordinate is more subtle, and the “monkey” conceals its animus when being double-checked by HR?
3. What if the “monkey” is not a manager, but merely a co-worker?
4. The Court cautioned that an employer will not be liable if its investigation “results in an adverse action for reasons unrelated to the supervisor’s original biased action.” For example, supervisor Jones originally let it be known that he hated subordinate Smith because she dated a Hispanic man. Jones confesses his animus to HR then shifts gears, seeking Smith’s dismissal because she has a bad attitude and is not a team player. How does HR separate the animus from the subsequent report that Smith is unfit to work in the department?