Court reinstates discrimination, retaliation suit against LSU

An appeals court cited what is known as the cat's paw theory of liability in reinstating a gender discrimination and retaliation lawsuit by a Louisiana State University police officer.

Under the cat's paw theory adopted by the U.S. Supreme Court, employers can be held liable for discriminatory conduct even if the person who made the decision was not discriminatory, but relied in part on those who were.

Tuesday's ruling by the 5th U.S. Circuit Court of Appeals in New Orleans in Martha Helen Haire v. Board of Supervisors of Louisiana State University Agricultural and Mechanical College is a lesson for employers on the importance of examining who may influence decision-makers, said an attorney not connected to the case.

Ms. Haire, a major in the LSU Police Department, faced hostility from a co-worker, Lawrence Rabalais, who was competing with her to be promoted to chief of the university's police department. Mr. Rabalais allegedly told a co-worker he wanted to “get rid of” Ms. Haire and would quit if a woman were appointed chief, according to court records.

Following her supervisor's orders, Ms. Haire entered information into the police reporting system in May 2009 that made public the arrest of a former university dean, a high-profile figure on campus. The incident arguably violated police procedure, according to the ruling.

An investigation ensued, including Mr. Rabalais interviewing Ms. Haire. Mr. Rabalais subsequently gave her the lowest performance evaluation she had received in her 22 years with the university, which resulted in her losing her supervisory responsibilities, among other repercussions.

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Mr. Rabalais was named interim police chief in August 2009.

Ms. Haire filed a discrimination charge with the Equal Employment Opportunity Commission in September 2009. After Mr. Rabalais was permanently named police chief in January 2010, Ms. Haire again sued the university charging gender discrimination, retaliation and reprisal in violation of Title VII of the Civil Rights Act of 1964.

A federal judge in Baton Rouge, La., granted the university summary judgment and dismissed the case in 2010.

She then appealed and, in its unanimous ruling Tuesday, a three-judge panel of the appeals court reinstated her suit.

“Pretext is the crux of Haire's case; she provides evidence that she was following a lawful order from her supervisor and (the university) had no formal written procedure that clearly prohibited her from obeying her supervisor's command to file a second report,” the appeals court said in its ruling.

“For her what followed … was all a charade that (the university) undertook to cover its tracks in the sexual discrimination suit it anticipated. We agree that Haire has produced evidence sufficient for a jury to rule in her favor on these underlying predicate points,” the court ruled.

“There is a bona fide question whether (the university's) purported justification for not promoting Haire, whose credentials were superior to those of Rabelais, was pretextual, and there is the further question whether Haire could have committed an official wrongdoing when she complied with her superior's directives,” said the ruling.

University Chancellor Michael Martin made the ultimate decision on hiring a police chief.

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“Under the 'cat's paw' theory of liability, however, it is possible” Mr. Rabelais' remarks about Ms. Haire “may be imputed to Martin, the formal decision-maker, if Rabalais played a role in the ultimate selection,” the appeals court ruled in remanding the case for further proceedings.

Commenting on the ruling, Michael W. Fox, a shareholder with law firm Ogletree, Deakins, Smoak & Stewart P.C. in Austin, Texas, said the New Orleans appeals court’s ruling was influenced by the 2011 Supreme Court decision in Vincent E. Staub v. Proctor Hospital.

Referring to Chancellor Martin, Mr. Fox said, “It’s just a classic case where you had a decision-maker who in the past would have argued he couldn’t have discriminated because he did not really know these people, and nothing he ever said or had done shows discriminatory intent.

“But the court really skipped over looking at his state of mind and focused instead on the state of mind” of Mr. Rabalais, who made “several statements that could be considered sexist,” Mr. Fox said.

The ruling “is a good lesson for employers that these cases decided by the Supreme Court really do have a real life impact and what it means in this case is, when you’re evaluating a termination or evaluating a lawsuit where you’ve had a termination, you have to focus more broadly than we have in the past” and examine if someone else “was manipulating the decision-maker,” said Mr. Fox. “It just expands the scope of potential problems for employers.”