Federal Evidence Review

Seventh Circuit reverses jury verdict for an employee in employment discrimination case after the trial court admitted evidence of hostility by a non-decision-making employee toward the plaintiff without first determining under FRE 104(b) that this evidence was conditionally admissible to prove that the decision-maker was used as a “cat’s paw” by the hostile employee to discriminate against the plaintiff, in Staub v. Proctor Hosp., 560 F.3d 647 (7th Cir. March 25, 2009) (Nos. 08-1316, 08-2255, 08-2402)

FRE 104(b) requires that if the “relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.” FRE 104(b). Of course, if evidence is conditionally admitted and the court later finds that the underlying conditions were not satisfied, merely striking the evidence may lead to difficulties. The Seventh Circuit recently considered the responsibility of the trial court in dealing with civil evidence provisionally admitted and how the court could preclude exposing the jury to such evidence when there is a possibility that the condition which underlies its admission is not fulfilled.

Tensions Over Work Schedule

In Staub, the plaintiff was an Army reservist. He prevailed in his suit against his employer, defendant Proctor Hospital for discharging him from his position as an angiography technologist. He alleged that the reasons the Hospital provided for the termination -- “insubordination, shirking, and attitude problems -- were just a pretext for discrimination based on his association with the military.” Although the plaintiff had been employed at the Hospital for nearly a decade, things began to “grow a little tense” when the second-in-command at his department, unlike previous shift schedulers, began to arrange the defendant’s shifts.

During the weekend the plaintiff had military drill and training duties and the scheduler began to assign Staub work duties during the weekend. The plaintiff alleged that the schedulers called his “military duties ‘bullshit’ and said the extra shifts were his ‘way of paying back the department for everyone else having to bend over backwards to cover [his] schedule for the Reserves’ because all the reserve duty involved was “a b[u]nch of smoking and joking and [a] waste of taxpayers[’] money.” Staub, 560 F.3d at 652. The tension began to intensify with the Iraq War and increasing hostility between department members and the plaintiff. Apparently the plaintiff’s “military obligations were at least peripherally involved” in this hostility. Over time, the tension between the plaintiff and the Hospital grew and eventually Staub was terminated. As explained by the hospital, “despite technical competency, [Staub] didn’t work well with others and deserved to be fired for insubordination. Staub’s involvement with the military played no role” in the decision. Staub, 560 F.3d at 655 .

Discrimination Under USERRA

The plaintiff sued under Uniformed Services Employment and Reemployment Rights Act (USERRA) which “prohibits adverse action based on a prohibited criterion, in this case military status. 38 U.S.C. § 4311(a), (c)(1). As with other discrimination legislation, a plaintiff suing under USERRA does not prevail by showing prohibited animus by just anyone. He must show that the decisionmaker harbored animus and relied on that animus in choosing to take action.” Admittedly, the plaintiff had been unable to show direct animus by the decision-maker, although there was plenty of evidence of hostility by subordinates. So, “[d]eploying the cat’s paw theory, Staub sought to attribute [department second-in-command] Mulally’s animus to [the decision-maker and department head] Buck, and therefore to Proctor [Hospital, the defendant]. He posited that Mulally fed false information to Buck (i.e., that he dodged work on January 26, 2004); that Mulally was motivated to do this because he was a member of the Army Reserves.” Staub, 560 F.3d at 655.

“Cat’s Paw” Theory Of Discrimination

As the circuit explained, “The cat’s paw theory … is a way of proving discrimination when the decisionmaker herself is admittedly unbiased; under the theory, the discriminatory animus of a nondecisionmaker is imputed to the decisionmaker where the former has singular influence over the latter and uses that influence to cause the adverse employment action.” Staub, 560 F.3d at 651 (citing Brewer v. Board of Trustees of University of Illinois, 479 F.3d 908 (7th Cir. 2007)). The circuit noted the literary roots of “the ‘cat’s paw’ theory.” “The term derives from the fable ‘The Monkey and the Cat’ penned by Jean de La Fontaine (1621-1695). In the tale, a clever-and rather unscrupulous-monkey persuades an unsuspecting feline to snatch chestnuts from a fire. The cat burns her paw in the process while the monkey profits, gulping down the chestnuts one by one. As understood today, a cat’s paw is a ‘tool’ or ‘one used by another to accomplish his purposes.’” Staub, 560 F.3d at 650 (citation omitted). The essence of Staub’s theory is that second-in-command, Mulally, selectively fed information to decision-maker Buck that prompted Buck to fire Staub. While Buck may not have acted because of Staub’s military service, Mulally did act from animus to Staub’s military position.

In its review of an application of this “cat’s paw” theory to Staub’s case, the circuit reversed, admitting that there was a “dearth of case law - but we agree with [defendant] Proctor that the division of labor between jury and court” in assessing the evidence for such a theory was “legally defective.” The circuit agreed with the trial court that under the cat paw theory, “animus by a nondecisionmaker is only relevant if she exercised singular influence over the decisionmaker.” In addition, whether there is such animus for application of the theory is a matter to be decided by the jury. However, the trial court erred by placing the evidence for such a theory before the jury without first, under FRE 104(a), determining if the evidence met the test for conditional admissibility: Was the evidence sufficient, if believed by the jury, to support a finding that there was a singular influence by a supervisor (Mulally) over the officer who made the decision to terminate the plaintiff (Buck)?

Conditional Admissibility

Faced with the decision to admit the evidence of hostility by a non-decisionmaking supervisor, when the law required proof of animus by the decisionmaking supervisor, the trial court faced a question of conditional admissibility of evidence that might, if the conditions were not satisfied, be irrelevant. Faced with a “cat’s paw theory” the trial court should not simply admit the evidence of nondecisionmaker hostility. As the circuit noted:

“should not just give an instruction and ask the jury to sort it all out. The court has a critical task to perform before giving the instruction or admitting evidence of nondecisionmaker animus-preferably at the summary judgment or in limine stage of the proceedings. Namely, the court should determine whether a reasonable jury could find singular influence on the evidence to be presented. If there is not sufficient evidence to support such a determination, then the court has no business admitting evidence of animus by nondecisionmakers. Admitting this sort of evidence would not only be technical legal error; it would likely be prejudicial due to the jury’s tendency to associate the nondecisionmaker’s remarks with the employer, fairly or not.”

Staub, 560 F.3d at 658.

In addressing the appropriate “division of labor between judge and jury” in deciding a discrimination case on a cat’s paw theory, the circuit emphasized the responsibility of the trial “judge making a threshold determination of whether a reasonable jury could find singular influence before admitting evidence of nondecisionmaker animus.” This was because:

“[a]llowing the jury to entertain the cat’s paw theory and decide whether there was singular influence, but only upon a prior determination that there is sufficient evidence for such a finding, is consistent with Federal Rule of Evidence 104(b). That rule instructs courts to admit conditionally relevant evidence-here, animosity by a nondecisionmaker-’upon ... the introduction of evidence sufficient to support a finding of the fulfillment of the condition.’ In other words, the jury could only properly consider evidence of animosity by Mulally (or any other nondecisionmaker) if the court determined that there was sufficient evidence to support a finding of singular influence by Mulally (or another) over Buck.”

Staub, 560 F.3d at 658 (citations omitted).

The circuit determined that because the trial court did not utilize FRE 104(b) to conditionally admit the evidence supporting a cat’s paw theory, the trial court erroneously admitted “Staub’s abundant evidence of Mulally’s animosity” and that this “error was prejudicial because the strongest proof of anti-military sentiment came from the improperly admitted evidence.” However, the circuit did not order a new trial but rather remanded with instructions to enter a judgment for the Hospital because the evidence that was properly considered in the case was insufficient to support the jury’s verdict for the plaintiff.

Staub indicates the importance in a jury trial that the court screen the evidence before leaving to the jury the question of whether evidence that was conditionally admitted should be considered in its deliberations because the conditions underlying its admissibility have been satisfied.