The Family and Medical Leave Act (FMLA) prohibits employers from retaliating against employees for taking FMLA leave. In the case of Parker v. United Airlines, Inc., which recently reached the United States Court of Appeals for the Tenth Circuit, the plaintiff argued that her termination violated the FMLA on the grounds that her immediate supervisor’s recommendation of that employment action was based on retaliatory motive. She further claimed that her employer was liable for such retaliation under the so-called “cat’s paw” theory; namely, that the supervisor’s tainted recommendation was adopted by the employer which made the final decision to terminate her employment. However, on September 26, 2022, the Tenth Circuit held that this theory of liability does not apply when the employer conducts an independent review of the evidence when making the final decision to terminate.
Parker’s job involved taking calls from United’s customers who sought to book flight reservations. About five months after approving Parker for FMLA leave, her supervisor suspected that Parker was deliberately avoiding such calls by placing customers on hold and forcing them to wait. Parker was suspended and her supervisor recommended that she be terminated. However, the supervisor lacked the authority to fire Parker. United’s policies required that a separate manager conduct an investigatory meeting which allowed Parker, her supervisor, and a union representative to participate. Such meeting was held, and the manager ultimately decided to terminate Parker based on evidence of Parker’s poor performance.
Parker sued United alleging that the company terminated her in retaliation for exercising her FMLA rights. The district court granted summary judgment in favor of United, and Parker appealed to the Tenth Circuit. Parker argued that liability against United could be inferred because the manager who made the termination decision “relied” on information from the allegedly biased supervisor regarding Parker’s job performance.
While assuming that a cat’s paw theory can be applied in FMLA cases, the Tenth Circuit rejected Parker’s arguments that the evidence supported a finding of liability under that theory. The court concluded that “United broke the causal chain by directing other managers to independently investigate and decide whether to adopt the supervisor’s recommendation.” The court found no evidence to demonstrate that the manager’s investigation was influenced by the supervisor’s alleged bias, or that the manager failed to conduct an independent review of the evidence presented. Therefore, Parker did not prove that the manager’s ultimate decision was based on retaliatory motive.
This case is instructive to employers engaged in any employee disciplinary or termination action. Employers often receive information from front-line supervisors regarding employee performance and conduct related issues, along with requests from those supervisors to take certain employment actions. However, a prudent employer should carefully and critically assess the matter before approving an adverse employment action. An independent review of the relevant evidence, including interviews of the supervisor, the employee who is the subject of the review, and any witnesses, is necessary to ascertain the facts and whether disciplinary action or termination is justified under the circumstances. Such investigation should be undertaken by members of management and/or human resources who are independent from those individuals presenting the information or making recommendations. Careful attention should also be given to the consistent application of company policy and practices in order to avoid claims of disparate treatment, discrimination, or retaliation. Employment counsel can also be helpful in assessing potential risk.