By Brandi O. Brown, J.D.
Oregon’s highest court concluded that the whistleblowing plaintiff’s requested instruction on the “cat’s paw” theory should have been given to the jury and failure to give it was error.
Addressing a matter of first impression, the Oregon Supreme Court ruled, in the case of an electrician who alleged he was fired in retaliation for making safety complaints and whistleblowing, that a plaintiff making such a claim could advance a “cat’s paw” theory of liability. Thus, the trial court erred by refusing to give the “cat’s paw” instruction. However, a causal connection must exist between the bias of the subordinate (in this case the employee’s supervisors) and the adverse action taken against the employee by the decisionmaker. The decision of the court of appeals, reaching the same conclusion, was affirmed and the judgment reversed (Ossanna v. Nike, Inc., July 18, 2019, Nakamoto, L.).
Unsupervised apprentices. In 2009, Nike, Inc., the employer named as a defendant in the case, established an electrician apprenticeship program that would allow participating employees to obtain a Limited Maintenance Electrician license. However, shortly after the program’s inception the plaintiff, a licensed electrician employed by Nike, Inc., raised concerns about apprentices performing unsupervised electrical work in the program. He took his concerns up the chain of command from his supervisors to the maintenance operations manager, the facilities director, a senior director, and an operational risk manager.
Repercussions for concerns raised. According to the employee, his second-level manager was unhappy with him and the other employees who raised concerns, in particular after the reports that they were considering filing an OSHA complaint. The employee alleged that the second-level supervisor told him that he would not be considered for a promotion “because of the past,” a statement the employee understood to be related to his safety complaints. The employee complained of that comment to the facilities director as well. Subsequently, another worker, as well as the employee, filed safety complaints with the committee administering the apprenticeship program, the Joint Apprenticeship Training Committee (JATC). The employee also filed an OSHA complaint. While JATC was investigating, the employee’s direct supervisor told him that if he provided the committee with any information he would not “be allowed on this campus again.”
Termination. Several months later the employee was questioned by both supervisors about his use of his access privilege at one of the employer’s sports facilities and damage that had occurred. The employee, along with two contractors who were there to complete a maintenance project, had shot a few hoops on one of the basketball courts. The employee acknowledged using his access badge, but denied that they had caused damage to the gym floor as implied. He was offered the opportunity to resign rather than be terminated, but rescinded his resignation, claiming his termination was retaliatory. That claim “hit the pause button” on his termination but he was ultimately fired anyway by the facilities director.
Jury trial and appeals. The employee filed suit, alleging that the employer retaliated against him for making safety complaints in violation of ORS 654.062(5) and that it retaliated against him for whistleblowing in violation of ORS 659A.199. His claims were tried to a jury, but the court declined to give a cat’s paw instruction (even though the parties had initially agreed to one). That instruction would have comported with the employee’s theory that the facilities director’s termination decision had been improperly influenced by his first and second-level supervisors, who harbored a retaliatory bias against him. The jury ruled in favor of the employer on both claims and the employee appealed. The Court of Appeals agreed with the employee and reversed and remanded. The employer the petitioned for review by the state’s highest court.
Issue of first impression. Although acknowledging that this was the first time the court would address the “cat’s paw” doctrine with regards to Oregon statutory employment claims, the high court noted that the court of appeals had recently issued three decisions accepting and applying the theory, including this one. The Oregon Supreme Court agreed with the intermediate appellate court that the doctrine was a viable theory for use in such circumstances. The court noted that Oregon courts have looked to federal precedent for guidance in analyzing claims under ORS chapter 659A and that one of the provisions cited by the employee for his action, in fact, has a federal OSHA counterpart. The court also traced the origin of the “cat’s paw” term from an Aesop’s fable and detailed its adoption by courts for the purposes of determining liability in employment cases. After providing this overview of the “widely accepted” theory for imputing bias, the court joined those courts in adopting it.
Influence or involvement sufficient. In so doing, the court explained that the theory, as adopted, did not “prescribe a particular level of control” that the biased employee had to exert over the decision before the bias could be imputed. Instead, it agreed with the practical approach of federal appeals courts “that have held that a biased supervisor’s influence on or involvement in the decision or decision-making process is sufficient to allow a factfinder to impute bias.” Therefore, as long as the plaintiff can show such influence or involvement, the plaintiff could establish the employer’s bias based on the “cat’s paw” theory. The plaintiff, however, still must demonstrate the requisite causation between the supervisor’s bias and the adverse employment action.
Plaintiff still had same burden. In this case, the planned jury instruction was a correct statement of the law and, contrary to the employer’s contention, it did not eliminate the employee’s burden to meet the applicable causation element under the two statutory provisions. Its use of “influenced, affected, or was involved” language with regard to the decisionmaker’s subordinates did not relieve the employee of that burden. The jury still had to consider whether the imputed bias was a substantial factor in the termination decision. The instruction was a correct statement of the law, the court explained, the evidence in the record supported giving it, and it was a necessary instruction in spite of the other instructions given. Because the error substantially affected the employee’s rights, the judgment was reversed and the case was remanded for further proceedings.
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