CACI 2511 Adverse Action Made by Decision Maker Without Animus (Cat’s Paw)

New December 2012; Revised June 2013, May 2020, November 2020

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Give this instruction if the “cat’s paw” rule is a factor in the case. Under the cat’s paw rule, the person who actually took the adverse employment action against the employee was not acting out of any improper animus. The decision maker, however, acted on information provided by another person who was acting out of discriminatory or retaliatory animus with the objective of causing the adverse employment action. The decision maker is referred to as the “cat’s paw” of the person with the animus. (See Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 100 [16 Cal.Rptr.3d 717]; McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1536 [152 Cal.Rptr.3d 154] [accepting the legal premise that an employer may be held liable on the basis of a non-supervisor’s discriminatory motivation].) The cases have not yet defined the scope of the cat’s paw rule when the decision maker relies on the acts of a nonsupervisory coworker or other person involved in the employment decision.

The purpose of this instruction is to make it clear to the jury that they are not to evaluate the motives or knowledge of the decision maker, but rather to decide whether the acts of another person with animus actually caused the adverse action. Give the optional language in the second sentence of the first paragraph in a retaliation case in which the decision maker was not aware of the plaintiff’s conduct that allegedly led to the retaliation (defense of ignorance). (See Reeves, supra, 121 Cal.App.4th at pp. 106–108.)

Element 1 requires that the protected activity or attribute be a substantial motivating reason for the retaliatory acts. Element 2 requires that the other person’s improper motive be a substantial motivating reason for the decision maker’s action. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; see also CACI No. 2507, “Substantial Motivating Reason” Explained.)

In both elements 1 and 2, all of the other person’s specific acts need not be listed in all cases. Depending on the facts, doing so may be too cumbersome and impractical. If the specific acts are listed, the list should include all acts on which plaintiff claims the decision maker relied, not just the acts admitted to have been relied on by the decision maker.

•“This case presents the question whether an employer may be liable for retaliatory discharge when the supervisor who initiates disciplinary proceedings acts with retaliatory animus, but the cause for discipline is separately investigated and the ultimate decision to discharge the plaintiff is made by a manager with no knowledge that the worker has engaged in protected activities. We hold that so long as the supervisor’s retaliatory motive was an actuating … cause of the dismissal, the employer may be liable for retaliatory discharge. Here the evidence raised triable issues as to the existence and effect of retaliatory motive on the part of the supervisor, and as to whether the manager and the intermediate investigator acted as tools or ‘cat’s paws’ for the supervisor, that is, instrumentalities by which his retaliatory animus was carried into effect to plaintiff’s injury.” (Reeves, supra, 121 Cal.App.4th at p. 100.)

•“We do not suggest that discrimination must be alone sufficient to bring about an employment decision in order to constitute a substantial motivating factor. But it is important to recognize that discrimination can be serious, consequential, and even by itself determinative of an employment decision without also being a ‘but for’ cause.” (Harris, supra, 56 Cal.4th at p. 229.)

•“Requiring the plaintiff to show that discrimination was a substantial motivating factor, rather than simply a motivating factor, more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision. At the same time, … proof that discrimination was a substantial factor in an employment decision triggers the deterrent purpose of the FEHA and thus exposes the employer to liability, even if other factors would have led the employer to make the same decision at the time.” (Harris, supra, 56 Cal.4th at p. 232, original italics.)

•“This concept—which for convenience we will call the ‘defense of ignorance’—poses few analytical challenges so long as the ‘employer’ is conceived as a single entity receiving and responding to stimuli as a unitary, indivisible organism. But this is often an inaccurate picture in a world where a majority of workers are employed by large economic enterprises with layered and compartmentalized management structures. In such enterprises, decisions significantly affecting personnel are rarely if ever the responsibility of a single actor. As a result, unexamined assertions about the knowledge, ignorance, or motives of ‘the employer’ may be fraught with ambiguities, untested assumptions, and begged questions.” (Reeves, supra, 121 Cal.App.4th at p. 108.)

•“[S]howing that a significant participant in an employment decision exhibited discriminatory animus is enough to raise an inference that the employment decision itself was discriminatory, even absent evidence that others in the process harbored such animus.” (DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 551 [87 Cal.Rptr.3d 99]).

•“[W]e accept Employee’s implicit legal premise that Employer could be liable for [the outside investigator’s] discriminatory motivation if the male executives who actually terminated Employee were merely the cat’s paws of a biased female investigator.” (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1536 [152 Cal.Rptr.3d 154].)

•“Certainly a defendant does not conclusively negate the element of causation by showing only that some responsible actors, but not all, were ignorant of the occasion for retaliation.” (Reeves, supra, 121 Cal.App.4th at p. 108.)

•“Here a rational fact finder could conclude that an incident of minor and excusable disregard for a supervisor’s stated preferences was amplified into a ‘solid case’ of ‘workplace violence,’ and that this metamorphosis was brought about in necessary part by a supervisor’s desire to rid himself of a worker who created trouble by complaining of matters the supervisor preferred to ignore. Since those complaints were protected activities under FEHA, a finder of fact must be permitted to decide whether these inferences should in fact be drawn.” (Reeves, supra, 121 Cal.App.4th at p. 121.)

•“Our emphasis on the conduct of supervisors is not inadvertent. An employer can generally be held liable for the discriminatory or retaliatory actions of supervisors. The outcome is less clear where the only actor possessing the requisite animus is a nonsupervisory coworker.” (Reeves, supra, 121 Cal.App.4th at p. 109 fn. 9, original italics, internal citation omitted.)