7th Circuit rejects ‘cat’s paw’ theory in age discrimination claim

The “cat’s paw” theory of liability refers to a biased supervisor who discriminates against an employee based on a protected characteristic (such as age) and influences an unbiased decision-maker to terminate the employee under legitimate pretenses.

The recent 7th Circuit decision in Lindsey v. Walgreen Co. (No. 10-1036, 7th Cir., 2010) addresses the cat’s paw theory of liability in the context of an age discrimination claim. The court held that a supervisor who decided to fire an employee was not the “cat’s paw” because she did not rely solely on the employee’s allegedly biased supervisor.

Dangerous interaction

Katie Lindsey worked as a pharmacist at a Walgreens store and was promoted to pharmacy manager by Connie Jenkins, the district pharmacy supervisor.

However, Walgreens received complaints that Lindsey violated company policies when she filled expired prescriptions and offered unauthorized discounts. Jenkins demoted Lindsey to staff pharmacist, transferred her to a different store and warned her that she would be fired if she did not follow pharmacy procedures.

At the new store, Lindsey claimed her co-workers called her “lazy” and “slow” and questioned why Walgreens exiled “old” pharmacists to their store.

Performance problems at the new store eventually resulted in Lindsey’s termination at age 53. The events leading to Lindsey’s termination involved a customer who presented Akua Bamfo-Agyei, the pharmacy manager and Lindsey’s direct supervisor, with a prescription.

The pharmacy database warned Bamfo-Agyei that there could be a dangerous interaction between the prescription drug and another medication the customer was currently taking. Bamfo-Agyei called the customer’s doctor and left a message asking about the potential drug interaction. Bamfo-Agyei placed the prescription in the “exception queue,” along with a note saying that she was waiting to hear from the customer’s doctor before filling the prescription.

Fired for recklessness

After Bamfo-Agyei left for the day, Lindsey filled the customer’s prescription. Doing so required her to override the database’s drug-interaction warning. Although Lindsey was aware of the potentially serious interaction between the two drugs, she overrode the warning because she believed the customer’s condition required immediate attention and that the risk of an interaction was minimal.

The next day, the customer’s doctor called the pharmacy and instructed Bamfo-Agyei not to fill the prescription. Bamfo-Agyei discovered what Lindsey had done.

Bamfo-Agyei reported the incident to Jenkins. Jenkins reviewed the database record and analyzed the customer’s medical history. She determined that Lindsey should not have filled the prescription, violated company policy by overriding the database’s drug-interaction warning and acted recklessly by filling the prescription without further input from the doctor.

Then she fired Lindsey.

Cat at the pharmacy counter?

Lindsey sued Walgreens under the Age Discrimination in Employment Act (ADEA), claiming she was fired because of her age.

Her lawsuit said the cat’s paw theory applied in her case. Lindsey claimed that Jenkins was a cat’s paw for Bamfo-Agyei, who did not like Lindsey because of her age. Lindsey argued that Jenkins fired her after “blindly relying” on biased information from Bamfo-Agyei.

The district court granted summary judgment for Walgreens. It rejected Lindsey’s cat’s paw theory, finding that Jenkins did not rely solely on information from Bamfo-Agyei.

The 7th Circuit affirmed the district court. It held that Lindsey failed to show that the information Bamfo-Agyei gave to Jenkins was biased. The court stated that offensive comments about Lindsey’s age did not establish that Bamfo-Agyei’s manipulated Jenkins’ decision to fire Lindsey.

In addition, it said Jenkins did not rely solely on Bamfo-Agyei’s allegations. Rather, Jenkins conducted her own investigation before firing Lindsey. This effectively spelled an end to Lindsey’s cat’s paw theory.

Finally, the court pointed out that even if Jenkins were a cat’s paw, Lindsey still could not prevail because her age was, at most, a motivating factor in the decision to fire her. To establish liability under the ADEA, the court explained that Lindsey must prove that her age was the determining factor in her termination, according to the U.S. Supreme Court’s 2009 Gross v. FBL Financial Services standard.

In fact, substantial evidence existed that Walgreens fired Lindsey not because of her age, but because she violated company policy by overriding the database’s warning. As a result, Lindsey failed to prove that Walgreens fired her because of her age.

What employers should do

This case highlights how important it is for decision-makers to conduct independent investigations to minimize the possibility of a cat’s paw liability claim.

They should obtain reliable, unbiased and nondiscriminatory information upon which to base their decisions and must not blindly rubber-stamp others’ recommendations.

Consult your attorney for help in implementing policies and practices that reduce the threat of cat’s paw liability.