By Brandi O. Brown, J.D. An employer's negligent response to fabricated and questionable counter-accusations made by a dispatcher who had been accused by his female coworker of "sexting" could lead to employer liability for the dispatcher’s retaliatory animus under a "cat's paw" theory, the Second Circuit has ruled. When it chose to ignore warning signs and refuse the evidence offered by the complaining coworker, the employer ran the risk that a reasonable jury could conclude it acted negligently and was liable for the dispatcher’s retaliatory animus, regardless of his nonsupervisory role within the organization. The judgment of the district court dismissing the employee's complaint was vacated (Vasquez v. Empress Ambulance Service, Inc., August 29, 2016, Calabresi, G.). "Wat u think?" Both employees worked for an ambulance service company, the complainant as an EMT and her coworker as a dispatcher. The EMT alleged that her dispatcher coworker pursued her romantically by asking her out on dates, flirting with her, and touching her. Although she claimed she said she was not interested, he continued to pursue her. After asking her when she was going to let him take her out and telling her "I bet I can make you leave your man," and "I’m going to send you something between you and me," while she was working he sent her a text message with a picture of his erect penis and the caption, "Wat u think?" At the end of her shift, the EMT reported his conduct to an HR rep and a supervisor. Fabricated evidence of consensual sex talk. When the dispatcher realized that the EMT was making a complaint, he told a coworker that he was "afraid he was going to lose his job," and asked that coworker to lie for him by telling management about his supposed relationship with her. The coworker declined, so the dispatcher spent the next few hours purportedly manipulating his iPhone to make it appear that a conversation containing consensual sexual text banter with another person was a conversation with the EMT. He then gave printed screen shots of portions of this conversation to the employer, along with a "racy" photograph allegedly of the EMT when he was called in to discuss her accusations a few hours later. "We know the truth." A committee consisting of the company’s owner, a union rep, and the HR rep then told the EMT that they "kn[e]w the truth" and were aware that she had been having a sexual relationship with the dispatcher. Although she adamantly denied it, asked to see the information the dispatcher had provided, and volunteered to turn over her cell phone over for inspection, the committee denied her requests and terminated her for sexually harassing the dispatcher. Alleging that the employer had wrongfully terminated her in retaliation for complaining of sexual harassment in violation of Title VII and the New York State Human Rights Law, the EMT sued, but the district court dismissed the complaint, concluding that the coworker's retaliatory intent could not be attributed to the employer. Court adopts cat's paw approach. Prior to this decision the Second Circuit had neither accepted nor rejected the cat's paw approach. The appeals court first held that the theory could be used to support recovery in retaliation cases under Title VII. It explained that permitting such recovery in retaliation cases "accords with longstanding precedent" in the circuit in the employment discrimination context. Negligent employers may be liable. But could the employer be held liable for relying on the dispatcher's—a coworker’s—information? Relying on general principles of agency, the court concluded that it could. Employers may be liable for the tortious actions of an employee acting outside the scope of his employment, including where the tort in question is attributable to the employer’s own negligence, reasoned the court, as recognized in Burlington Industries, Inc. v. Ellerth. There was "no reason" that Ellerth would not apply to create liability where an employer, by its own negligence, gives effect to the retaliatory intent of a low-level employee. Indeed, the First Circuit has already reached a similar conclusion. In spite of the fact that the dispatcher was a low-level worker without supervisory authority, the employer's "own negligence provides an independent basis" to treat the dispatcher as its agent and hold it accountable for his illegitimate intent. This "negligence-based approach to ‘cat's paw’ liability" would more fully comport with the Second Circuit's established case law, which recognizes that the bias of a single person involved in the decisionmaking process may taint the entire decision. Because of the employer's negligence, the dispatcher was able to achieve a role in the EMT’s termination, she alleged, that was both "meaningful" and "decisive." Negligence is the key. But the court stressed its holding should not be construed as holding an employer liable simply because it acts on information provided by a biased co-worker. As long as it does so without negligence and in good faith, an employer who relies on a false report by an employee who acted with unlawful animus will not be held accountable. Only when the employer effectively "adopts" the animus by acting negligently with regards to the information provided—allowing that employee to expand the role he would otherwise have in the decision—may the motivation be imputed to support a claim. Here, the employee sufficiently pleaded her employer’s negligence even though she did not use the term "negligence." The employer had reason to be skeptical of the cross-accusations of the accused dispatcher, based on timing, the fact that he just happened to have the printouts on hand, and the questionable nature of the printouts themselves, but it chose to ignore the warning signs and "blindly credited" the dispatcher's assertions while refusing to consider the employee's response or evidence.
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