By Kathleen Kapusta, J.D. Rejecting a discharged African-American employee’s claim that the court below erroneously failed to apply the "cat’s paw" analysis to his Title VII race discrimination claim, the Eighth Circuit pointed out that it was difficult to apply the theory here because his supervisor did not know of the company’s planned reduction in force at the time he took the allegedly discriminatory actions against the employee that led to his inclusion in the RIF. Thus, said the court in affirming the grant of summary judgment against his claim, it was simply not possible for his supervisor to use the decisionmaker as a "dupe" in a deliberate scheme to trigger a discriminatory employment action (Cherry v. Siemens Healthcare Diagnostics, Inc., July 21, 2016, Kelly, J.). I wish you were more like him. The field service technician worked for the company from 1981 until his termination in a RIF in 2011. For many years, he was the sole field service technician serving the area. In 2008, he began working for a new supervisor. That same year, a second field service technician was added. Both the new supervisor and the new technician were Caucasian. On multiple occasions over the next few years, the new tech and supervisor purportedly made various derogatory comments to or about the employee, acted disrespectfully toward him, and told stories and jokes that created a racially hostile environment for him. On one particular occasion, the supervisor told the employee he wished he was more like the other tech. RIF selection. In 2011, the company initiated a RIF. A company service director, who was also the supervisor’s direct superior, identified five individuals to be included in the reduction. Two of the five were employees who chose to retire and the remaining three, which included the employee, were the lowest performers in the region. The director assessed their performance based on their performance reviews from the last three years. While the employee’s supervisor did not learn of the RIF until after the employees to be laid off had been selected, he did prepare the employee’s performance review upon which the director relied. He also placed the employee on a performance improvement plan in 2010 and frequently complained to the director about the employee’s poor work performance. When the director asked the supervisor shortly before the RIF for a list of employees with current PIPs, the supervisor gave him the employee’s name even though his RIF had expired more than a year before. In addition, although earlier that year an internal report ranked the other tech as the lowest-rated field engineer in the area, a later draft ranked him as the second-lowest and the employee as the lowest. After the employee was informed of his inclusion in the RIF, he sued alleging his termination was based on race and the district court granted summary judgment in favor of the employer. No cat’s paw. On appeal, the court rejected the employee’s argument that the district court erroneously failed to apply the cat’s paw analysis, and therefore wrongly concluded that there was no direct evidence of racial discrimination. While it acknowledged that the supervisor’s negative performance reviews, in combination with his and the tech’s inappropriate comments, "may very well have been discriminatory in nature," he did not know in advance about the impending RIF. Had he known and then taken the actions he did with the intention of ensuring that the employee, rather than the second tech, was laid off, perhaps the cat’s paw analysis would be applicable, said the court, pointing out that is not what happened here. Thus, the district court did not err by proceeding to the McDonnell Douglas analysis. No evidence of pretext. The employee alternatively argued that the district court erroneously found the evidence did not support a finding of pretext. While he asserted that the director’s proffered explanation—the planned, company-wide RIF—was not credible, and that it was more likely that his termination was motivated by discrimination, the court found that though this might be true as to the supervisor’s actions, there was no evidence in the record to support a finding of pretext as to the director who was the actual decisionmaker.
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