Deciphering Motive in a "Cat's Paw" Case - The First Circuit's Take
by Michael Fox
When an agent of the Puerto Rico Justice Department hacked off his superiors by telling a newspaper reporter that they had failed to protect him when he was threatened by a hit man, that drug busts were cancelled without notice and that an informant was engaged in misdealing, it perhaps came as no surprise that he was terminated. The wrinkle came that in addition to recommending that he be terminated for "leaks" to the press, the supervisors passed on a second recommendation based on an anonymous tip that the soon to be discharged agent had been convicted for striking his wife (a conviction that the recommendation conveniently failed to mention had been expunged following a completed rehabilitation program).
Still, the 1st Circuit accepted for purposes of its decision that the ultimate decision was made by the Secretary of Justice who received the recommendations and that he based his decision solely on the information about the prior conviction. Still a jury had found that the recommendations to the Secretary were in retaliation for protected speech setting up, although the term is never used here, the so called "cat's paw" theory which has been addressed recently by other circuit courts. See my earlier posts, including a prior 1st Circuit decision here, and also by decisions by both the 4th Circuit and the 5th Circuit.
The defendants relied on the Mount Healthy line of cases which allow a termination "where there was a permissible and impermissible ground for a firing, [and] the impermissible ground [is] ignored where the employee would have been discharged anyway based on the permissible motive." Not applicable, said the 1st Circuit:
The problem in this case is not one of a single actor with multiple motives, but of sequential actors having different motives–-the first actor's motive being unlawful and the second actor's motive at least permissible. In such a case, the first actor may be (and here was) a but-for cause of the firing. The question is whether the intervening step-–a final decision maker acting on a permissible ground-–should as a matter of policy (not lack of causation) insulate the wrongdoer from liability.
Turning to how their sister circuits had addressed the issue, they found them in "nominal conflict", although concluding that "whether any of these cases intends a wholly mechanical rule in all cases is open to doubt." In any event, "a rigid rule would not comport with sound policy."
Unfortunately, that leaves the question as to what is the rule -- about the best that can be determined is their holding that "this is not a case in which it offends public policy to sanction a defendant who, for improper reasons, revealed Tejada's earlier offense in order to prompt his discharge." Tejada-Batiste v. Morales
(1st Cir. 9/20/05) [pdf]. From reading the facts of this case, not a decision one would quibble with; but unfortunately, for future litigants not a lot of guidance either.