Skip to content

Being Quiet as a Mouse Keeps the Cat’s Paw Away

When a company is going through the process of identifying employees who may be included in a reduction in force, upper management should think twice about letting front line supervisors know about the reduction in force, especially if those supervisors’ performance evaluations may be used to determine which employees will be terminated. In a recent decision, the United States Court of Appeals for the Eighth Circuit held that a plaintiff could not rely on a “cat’s paw” theory of discrimination when his immediate supervisor did not know that the company was conducting a reduction in force, even though that supervisor’s evaluations were the basis for the employee being selected for termination and there was evidence that he may have borne some discriminatory animus against the employee.

Under the “cat’s paw” theory of discrimination, a manager who decides to terminate an employee based on input from a supervisor may have the termination decision challenged if the employee can demonstrate that the supervisor providing the information had a discriminatory motive, even though the manager making the termination decision did not. However, a plaintiff must be able to show that the supervisor with the discriminatory motive intended for the employee to be terminated or treated adversely. A negative review, by itself, is not an ultimate employment decision upon which the case for discrimination can be based.

The Eighth Circuit found that when the higher level manager selected an employee for a reduction in force based upon the evaluation of a lower level supervisor with a potentially discriminatory motive, the plaintiff could not argue that the ultimate decision was discriminatory. In effect, what the supervisor had done with regard to the poor evaluation of the employee was not something that would support a case, and the trial court’s summary judgment had been appropriate. As the lower level supervisor did not know that his evaluation would lead to the eventual termination of the employee, his motivation could not be attributed to the higher level manager’s decision, and the “cat’s paw” theory could not apply.

The lesson here is that when it comes to reduction in force, only those in management who really have a reason to know should be informed of the company’s plan to downsize, and each of them should be told not to discuss plans of any upcoming reduction in force with anyone else. They should be quiet as mice when it comes to reductions in force or they could find themselves being swatted by the cat’s paw in subsequent litigation.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.