5th Circuit Panel Looks At Cat's Paw Theory

Posted 2:11 PM by Michael Fox

Earlier this week, the Supreme Court invited (i.e. told) the Solicitor General to submit the government's position on a 4th Circuit en banc decision discussed here earlier. Today, a panel of the 5th Circuit sets out the conditions for establishing discrimination under such a theory, but finds that plaintiff failed to meet the standard. Roberson v. Alltel Information Services (5th Cir. 6/30/04) [pdf]. The Court held:

To invoke the cat’s paw analysis, Roberson must submit evidence sufficient to establish two conditions: (1) that a co-worker exhibited discriminatory animus, and (2) that the same co-worker “possessed leverage, or exerted influence, over the titular decisionmaker.” Id. at 227; see also Laxton v. Gap Inc., 333 F.3d 572, 583 (5th Cir. 2003).

In affirming summary judgment, the Court found it was not necessary to decide whether there was any tension between McDonnell-Douglas and Desert Palace even though solicited to do so by the plaintiff. Without mentioning a separate panel's decision from last Friday, reported here which did address that issue, the Court found plaintiff had not presented sufficient proof under any conceivable standard. Additionally, the Court again rejected timing alone as the basis for making a prima facie case of retaliation.

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