By Brandi O. Brown, J.D.
A retaliation claim survived under a cat’s paw theory where a supervisor knew the employee had complained of age bias and knew her I-9 problems stemmed from use of her maiden name but did not disclose that to the HR manager who terminated her for lack of I-9 documentation.
A 66-year-old woman, who was fired during training for her new job with Frontier allegedly because she failed to provide required I-9 documentation, had her ADEA discrimination claim tossed on summary judgment because she failed to age was the but-for cause of her discharge. However, the federal district court in Pennsylvania allowed her retaliation claim to proceed under a cat’s paw theory of liability, because important information regarding her recent age discrimination complaint and her inadequate I-9 documentation (caused by use of her maiden name) was not given to the decisionmaker. The defendant’s motion for summary judgment was granted in part (Chase v. Frontier Communications Corp., January 18, 2019, Mariani, R.).
New job, old name. In 2015, after separating from her husband, the plaintiff applied for a job with Citizens Telecom Services Co. (CTSI), commonly known as “Frontier.” She had worked for CTSI previously under her married name, but feeling newly independent, signed her maiden name on her application. She also noted her married name on the application and told the supervisor who interviewed her that she had previously worked for CTSI under her married name. She accepted an offer of employment and promised to bring the required I-9 documentation.
“Are you getting this?” In fact, she provided documentation on the first day of training, but told the new-hire trainer that everything was under her married name. Soon after training started, the trainer accidentally displayed a spreadsheet with the birthdates of all of the class members. Two of the employee’s classmates began teasing her about her age, including asking her “Are you okay? Are you getting this” and “Are you learning this?” One commented, “I hope I’m not working at that age.” She complained to the trainer about the comments the next day. On the third day issues were raised regarding the employee’s I-9 documentation, as well as the documentation of one other class member. The employee offered additional documentation.
Reported comments, fired same day. The next day the employee called the supervisor to report the comments made by her classmates on the first day. After that conversation the supervisor learned about the problems with the I-9 documents. The supervisor spoke to the employee again and the employee indicated that she did not know when she would get the required documents. The supervisor then spoke to the HR Manager about the documentation issue, only, and the decision was made to fire the employee. After she was fired, the employee filed suit, alleging claims of age discrimination and retaliation and the employer filed a motion for summary judgment.
Age claim ejected. Tossing the age discrimination claim, the court held that the employee failed to establish a prima facie case. She could not rely on the treatment of the other employee who failed to provide documentation initially because the situation and decisionmakers were different. Nor did the employee establish that the reason for her discharge was pretextual. The court refused to be a “super-personnel department” that would sit in judgment of the employer’s inquiry, or lack thereof, into the plaintiff’s former employment status.
Although the record might suggest the decision was made without careful consideration of the predicament created by the employee’s use of her maiden name, the possible existence of required documentation in prior employment records, and without full understanding of the exceptions available to the employee under the law governing I-9 documentation, there was still no reason for a factfinder to reasonably disbelieve the employer’s reason. There was also no reason to find that an “invidious discriminatory reason was more likely than not the but-for cause of” the employer’s actions.
Retaliation claim survives under cat’s paw. However, the employee’s retaliation claim survived by way of a cat’s paw theory of liability. Although the decisionmaker might not have known about her discrimination complaint, the supervisor did and a reasonable factfinder could find that retaliatory animus was the proximate cause of the employee’s termination. Assuming that the employee complained to the supervisor about the age-related harassment (and the employer did not deny it), the supervisor called the HR Manager less than two hours later and, without sharing that information or the other specifics of the employee’s situation, she informed HR that the employee did not know when she would get the required documents.
There was other evidence indicating that the supervisor knew the problem was related to the employee’s decision to use her maiden name, yet she did not disclose that to the HR Manager. The supervisor also knew, but did not share, that she was attempting to satisfy the requirements. She also did not mention the plaintiff’s previous employment to the HR Manager or ask about the possibility of a record search. Moreover, there was evidence that the employee and supervisor had discussed her birth certificate as potential documentation.
However, the supervisor “did nothing to provide potentially relevant information to” the HR Manager, which, along with temporal proximity, was sufficient to create a triable issue regarding retaliatory animus. This was “bolstered by” evidence indicating that the supervisor was very supportive at first of the plaintiff’s employment, but then did nothing to help her after she lodged an age-related complaint. A reasonable factfinder could conclude that failure caused the HR Manager to fire, rather than suspend, the employee.
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