Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tuttle v. Baptist Health Medical Group, Inc.

United States District Court, E.D. Kentucky, Central Division

March 31, 2019

SHANNON TUTTLE, Plaintiff,
v.
BAPTIST HEALTH MEDICAL GROUP, INC. d/b/a BAPTIST HEALTH PULMONARY & CRITICAL CARE, Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

          CLARIA HORN BOOM, UNITED STATES DISTRICT COURT JUDGE

         This matter is before the Court on the Defendant's Motion for Summary Judgment [R. 23] and the Plaintiff's Motion in Limine [R. 28]. On May 31, 2017, Plaintiff Shannon Tuttle filed this lawsuit, bringing claims for violation of the Americans with Disability Act (ADA), violation of the Kentucky Civil Rights Act (KCRA), and common-law wrongful termination. [R. 1] The Defendant moved for summary judgment nearly a year later, [R. 23], and a hearing was held on that motion and the Motion in Limine [R. 28] on August 13, 2018. [See R. 43] For the reasons discussed below, the Plaintiff has not demonstrated a genuine issue as to a material fact, and her claims must fail. Accordingly, the Court will grant the Defendant's Motion for Summary Judgment as to all claims.

         I. BACKGROUND

         The Plaintiff worked as a medical assistant for the Defendant's predecessor from 2005 to July 2010, and then for the Defendant from July 2010 until her termination on November 16, 2016. [R. 24-1, Deposition of Shannon Tuttle (“Tuttle Depo.”) at pp. 68-70, 88-89, Page ID#: 288, 293; R. 24-2, Employee Separation Form at p. 1] The Plaintiff asserts that “[d]uring over ten years of employment at the same office, [her] performance was praised by physicians and the practice manager for whom she worked.” [R. 24, Plaintiff's Response to Motion for Summary Judgment (“Plaintiff's Response”) at p. 3 (citing R. 24-4, Deposition of John Harrison (“Harrison Depo.”) at p. 21 and R. 24-5, Affidavit of Donna Dunn (“Dunn Aff.”))] However, the deposition and affidavit which she cites contain statements from the manager and from one physician made after the onset of litigation, not statements (or references to statements) made during the Plaintiff's employment with the Defendant. See id.

         In October 2015, the Plaintiff learned that her son, Dylan Cartwright, had been diagnosed as HIV-positive. [R. 24-1, Tuttle Depo. at pp. 94-95, Page ID#: 295] The Plaintiff testified that she told Donna Dunn, the Practice Manager in Plaintiff's office, about her son's HIV-positive diagnosis (though it is unclear when); that she knew when she told Dunn that Dunn would keep this information confidential; and that she has no reason to think that Dunn did not do so. [R. 24-1, Tuttle Depo. at pp. 96-97, Page ID#: 295] The Plaintiff did not name any other of her coworkers when asked if she told anyone about her son's diagnosis, although Dr. John Harrison (a doctor who worked in the same office as the Plaintiff) also apparently knew. See id.; R. 24-4, Harrison Depo. at pp. 31-32.

         On December 22, 2015, the Plaintiff used the Defendant's computer system to access her son's medical records without authorization. [R. 24-1, Tuttle Depo. at pp. 117-118, Page ID#: 300, 301; R. 23-2, Portions of Plaintiff's Deposition and Deposition Exhibits at pp. 26-27, Page ID#: 133-134] The Plaintiff admitted that she knew this was wrong [R. 24-1, Tuttle Depo. at p. 118, Page ID#: 301]. Based on this incident, the Defendant issued the Plaintiff a final warning in January 2016. [R. 23-2, Portions of Plaintiff's Deposition and Deposition Exhibits at id.]

         On or about August 22, 2016, several area news organizations ran stories stating that Cartwright was HIV-positive and was facing charges after intentionally biting a corrections officer knowing that he was HIV-positive. [See R. 24-3, News Stories] The Plaintiff claims that she “soon learned that many of her coworkers were discussing” these news stories. [R. 24, Plaintiff's Response at p. 3] She testified that one of her coworkers, Michelle Clemons, [1]approached the plaintiff and expressed sympathy over the situation. [R. 24-1, Tuttle Depo. at p. 131, Page ID#: 304] The Defendant argues that “[w]hile [the Plaintiff] believes all of her co-workers had seen news coverage of the incident involving her son, the only person she could specifically identify was Michelle Clemons.” [R. 23-1, Memorandum in Support of Defendant's Motion for Summary Judgment (“Summary Judgment Memo”) at p. 3] But the Plaintiff also testified that Clemons (and perhaps a second coworker - the record is not clear on this point) told Plaintiff that Nancy VanDyke (yet another coworker) had shown one of the news videos in a “huddle” with “four or five of them.”[2] [R. 24-1, Tuttle Depo. at p. 132, Page ID#: 304] Another coworker, Brandy Martin, testified that she discussed one of the news stories with “Florence.”[3][R. 24-6, Deposition of Brandy Martin (“Martin Depo.”) at pp. 75-76, Page ID#: 467-68] The Plaintiff testified that she discussed “the story” with Dunn. [R. 24-1, Tuttle Depo. at p. 125, Page ID#: 302] The Plaintiff testified that she did not discuss the incident with any coworkers other than Clemons and Dunn. [R. 24-1, Tuttle Depo. at p. 125, Page ID#: 302]

         Though she testified to having a “good relationship overall” with her coworkers before the story, the Plaintiff claims that after the news stories were published, she was “alienated” from her coworkers and “treated poorly and unprofessionally, hindering her ability to perform her job duties.”[4] [R. 24-1, Tuttle Depo. at p. 124, Page ID#: 302; R. 24, Plaintiff's Response at p. 3 (citing[5] R. 24-1, Tuttle Depo. at p. 126, Page ID#: 303)] The Plaintiff claims that she was “ostracized by co-workers with whom she previously had a professional and collaborative relationship, including . . . Stephanie Salyers . . . Melissa Haggard . . . Toni Milam . . . Nancy VanDyke . . . Florence Bates . . . Regina Leach[6] . . . and . . . Brandy Martin.” [R. 24, Plaintiff's Response at p. 4 (citing Tuttle Depo. at pp. 126-134, Page ID#: 303-305)] Citing her own testimony as well as Dunn's affidavit, the Plaintiff claims that “[t]he front desk staff . . . including Haggard, Salyers, and Milam, refused to provide Tuttle with notice of appointment arrivals.” [Id. (citing R. 24-1, Tuttle Depo. at pp. 126, 130-32, Page ID#: 303, 304; R. 24-5, Dunn Aff.)] However, Dunn's affidavit merely states that Tuttle told Dunn that this was the case. [R. 24-5, Dunn Aff. at pp. 3-4] After the Plaintiff complained to Dunn about this issue, Dunn “discussed the office protocol for notifying clinical staff members that patients had arrived with reception staff, including” Haggard, Salyers, and Milam. [R. 24-5, Dunn Aff. at pp. 3-4; R. 24-1, Tuttle Depo. at pp. 135-136, Page ID#: 305]

         The Plaintiff also claims that many staff members, including Haggard, Milam, Salyers, Bates, VanDyke, Leach, and Martin, “refused to speak with Plaintiff, or to remain in the same room of Defendant's premises with her.” [R. 24, Plaintiff's Response at p. 4 (citing R. 24-1, Tuttle Depo. at pp. 126, 130, Page ID#: 303, 304] Finally, the Plaintiff testified that another coworker, Ranada Boone, told the Plaintiff that Martin “expressed a refusal to eat any dish prepared by the Plaintiff for an upcoming office potluck.” [R. 24, Plaintiff's Response at p. 4; R. 24-1, Tuttle Depo. at pp. 99-100, Page ID#: 296] Based on this comment, the Plaintiff testified that she thought Martin believed HIV to be communicable in ways other than the exchange of bodily fluids. Id. The Plaintiff testified that she is not aware of any other comments from coworkers regarding HIV. Id. at p. 101.

         On October 26, 2016, one of the Defendant's employees, Angela Allen, made an anonymous call to Shannon Robinson, the Defendant's Operations Manager. [R. 24-7, Deposition of Shannon Robinson (“Robinson Depo.”) at pp. 5, 15-16, 27] Allen complained about bullying/being “picked on, ” favoritism, and changed job duties, specifically mentioning Dunn by name. [R. 24-7, Robinson Depo. at pp. 16-19; R. 24-8, Deposition of Amy Morrison (“Morrison Depo.”) at p. 23] She did not mention anyone else or refer to the Plaintiff. [R. 24-7, Robinson Depo at pp. 17-19]

         Allen's complaint kicked off an investigation. Robinson testified that she “hardly ever” conducted human resources investigations. [R. 24-7, Robinson Depo. at pp. 10] She testified that she could recall one other human resources investigation that she “kind of sat in on.” Id. at p. 11. She testified that this other investigation “wasn't anything to [the] magnitude” of the investigation into Allen's complaint, that she “shouldn't even call it an investigation, ” and that it was just a “meeting” or “more me going and talking to each employee and just listening.” Id. at pp. 12-13. After receiving Allen's complaint, Robinson conferred with Amy Morrison, her supervisor and the Defendant's Director of Operations. [R. 24-7, Robinson Depo. at pp. 19-20; R. 24-8, Morrison Depo. at pp. 5, 9-10] Morrison suggested that Robinson speak with Lisa Stidham, who worked in Human Resources.[7] [R. 24-7, Robinson Depo. at p. 20] Robinson did so the next day, asking Stidham what she thought Robinson should do. [R. 24-7, Robinson Depo. at p. 20] Stidham advised talking to each employee, and at Robinson's request, emailed her a list of sample questions. Id. at p. 21. The sample included the following list of information that should be gathered:

Statement of complaining employee should include the following (1) date and time of incident, (2) the location of incident, (3) the company employees involved, (4) any witnesses to the incident, (5) precise nature of the complaint, (6) any additional facts relevant to the complaint.

[R. 24-9, Investigation Questionnaire at p. 2, Page ID#: 698] Stidham's sample list also included the following questions:

“(1.) Do you feel this is an uncomfortable working environment?”; (2.) Have you been subject to any type of aggressive or inappropriate behavior(s)? Please provide specific details of incident(s).”; “(3.) Were there witnesses to the incident(s)?”; “(4.) Did you report the incident to anyone?”; “(5.) Have you been a witness in seeing other coworkers being mistreated by another coworker?”; “(6.) Did you report the incident to anyone?”; “(7.) Were there other witnesses to the incident(s)?”; and “(8.) Do you have any other concerns that you would like to bring to our attention?”

[R. 24-9, Investigation Questionnaire at pp. 2-4, Page ID#: 698-700] The sample list also included a space for additional comments from the employee. Id. at p. 5, Page ID#: 701.

         Robinson testified that she then edited the list of questions; while she did not think her questions matched the ones which Stidham had sent “one hundred percent, ” she may or may not have added some questions. [R. 24-7, Robinson Depo. at p. 21] She also testified that the list of questions she used didn't have the “introductory paragraph” about the statement of the employee. Id. at. p. 35. Neither party attached the actual questions used in the investigation to the briefing on the Motion for Summary Judgment. However, based off of Robinson's testimony and the documents filed in the record at R. 29-1 (copies of notes from employee interviews, attached as an exhibit to the Defendant's Response to the Plaintiff's Motion in Limine), it appears that she did not include the six-part list of information to be gathered in employee statements, but kept the eight-part list of questions with a few minor wording revisions, and then added two questions: “Do you feel all staff are treated fairly?” and “As far as communication, do you feel well-informed regarding office policies, system initiatives, and goals for the practice?” [See R. 29-1, Interview Notes at pp. 2-8, Page ID#: 753-759]

         Over the course of two or three days (November 3, 8, and possibly 10[8], 2016) Robinson and Stidham (who attended per Dunn's request) conducted employee interviews. [R. 24-7, Robinson Depo. at p. 31; R. 24-5, Dunn Aff. at p. 3] The Plaintiff claimed in her response brief that “the interviews consisted of Robinson asking employees only the modified questions (i.e. whether they felt comfortable; were subject to aggressive behavior).” [R. 24, Plaintiff's Response at p. 6] The record shows the opposite. The same exhibit which the Plaintiff uses to establish the six-part list of information which Robinson did not use clearly shows that the questions on whether the working environment was comfortable, and whether employees had been subject to aggressive or inappropriate behavior (and a request for specific details) were included in the original sample list which Stidham sent to Robinson. [R. 24-9, Investigation Questionnaire at p. 1, Page ID#: 698]

         Robinson testified that she only expected to hear complaints about Practice Manager Dunn. [R. 24-7, Robinson Depo. at p. 23] The interviewed employees did indeed complain about Dunn. Robinson - who testified that there were issues with Dunn “not sharing information” - heard from some of the employees that the Plaintiff and Dunn were “good friends, ” “almost like family, ” associated outside of work, said “I love you” to one another frequently, and “just had a very close relationship.” [R. 24-7, Robinson Depo. at pp. 46-47] Robinson testified that Dunn was not forthcoming with problems at the office; that through the course of the interviews she (Robinson) concluded that the Plaintiff and Dunn were “buddies” and that Dunn would not report anything negative about the Plaintiff; and that Dunn was too close to the Plaintiff [R. 24-7, Robinson Depo. at pp. 43-44, 46, 50].

         Martin testified that prior to her interview with Robinson, she had expressed to Allen that Dunn “wasn't fair and showed favoritism.” [R. 24-6, Martin Depo. at p. 35] Martin explained that Dunn showed favoritism towards the Plaintiff, that the Plaintiff knew things before anyone else in the office, and that Dunn and the Plaintiff were friends. [R. 24-6, Martin Depo. at p. 35-36] Martin testified that Dunn “treated [the Plaintiff] differently from everyone else” and that Martin did not report an incident where the Plaintiff called her a name and made her feel threatened “because [Dunn and Plaintiff] are friends, ” and because Dunn would overlook the complaint due to her friendship with the Plaintiff, as others had told Martin in the past that they had reported things about Plaintiff and nothing was done. [R. 24-6, Martin Depo. at pp. 35, 48] Martin testified that another employee (“Ella”) saw the Plaintiff key someone's car and complained, but that nothing was ever done about that complaint. [R. 24-6, Martin Depo. at p. 44] Robinson testified that her understanding was that this allegation was not investigated at all. [R. 24-7, Robinson Depo. at p. 80] Dunn's affidavit stated that while Ella Coyle had complained to Dunn about the alleged keying, Coyle did not file a written complaint or provide Dunn with sufficient information to investigate. [R. 24-5, Dunn Aff. at p. 2]

         The employees also complained about the Plaintiff. According to Robinson's testimony, the employees who complained about the Plaintiff included Salyers, Haggard, Milam, VanDyke, Bates, Leach, one “Ella, ”[9] and Martin. [R. 24-7, Robinson Depo. at pp. 42, 43, 54, 58, 60, 69, 77, 84] The Plaintiff asserts that several of the employees discussed the investigation and the interviews both before and during the investigation. [R. 24, Plaintiff's Response at p. 7 (citing R. 24-6, Martin Depo. at pp. 33, 55)] However, the Plaintiff cites only Martin's testimony showing that Martin discussed the possibility of there being an investigation (based upon Allen's anonymous complaint, id. at p. 32) with Ella, Bates, “probably Karen, ” Allen, and “probably a lot of people, ” though she was “not sure exactly who, ” id. at p. 33, and that after being interviewed, Martin discussed her interview with Bates, Ella, Karen, and “Freddy.” Id. at p. 55. Even though, as discussed below, as many as ten to twelve employees complained, the Plaintiff cited to no evidence regarding what any of the other employees (such as Salyers, Haggard, Milam, VanDyke, or Leach) discussed. Nor did she cite to any evidence whatsoever that any of the employees discussed the interviews before they occurred. Moreover, in a portion of her deposition which the Plaintiff did not cite, Martin stated that she did not speak with any of the other employees about her interview before her interview occurred, and would not have had any conversations with any of the employees about what to expect in the interview. Id. at p. 38.

         The complaints, which the Plaintiff characterizes as “an airing of bizarre and frivolous gossip” about her, included allegations which were anything but frivolous. [Contra R. 24, Plaintiff's Response at p. 6.] The complaints included that the plaintiff was “the office bully, ” [R. 24-7, Robinson Depo. at p. 43; see also R. 24-8, Morrison Depo. at p. 59], and engaged in a plethora of inappropriate behavior including asking another employee “do you ever smile?”; calling a pregnant co-worker “huge”; “mooing” like a cow; “flashing and mooning” co-workers; “flipping off” co-workers; “snarling”; “grunting”; asking a co-worker whether she had washed her hands; and rolling her eyes and saying “uhh” while walking by a co-worker. [R. 24, Plaintiff's Response at p. 6] The Plaintiff did not dispute the Defendant's description of the testimony as including complaints that the Plaintiff called a co-worker a “bitch, ” [R. 23-1, Summary Judgment Memo at p. 6; R. 24-6, Martin Depo. at p. 42]; started a rumor that Martin and Freddy were having an affair and that the child would look like Freddy when it was born, [R. 23-1, Summary Judgment Memo at p. 6; Martin Depo. at p. 68]; and called a co-worker a “freak, ” [R. 23-1, Summary Judgment Memo at p. 6; Martin Depo. at p. 70].[10] Multiple employees reported feeling “physically threatened or intimidated” by the Plaintiff. [R. 24, Plaintiff's Response at p. 6; R. 24-8, Morrison Depo. at pp. 28-29, 44-46] Dunn's affidavit stated that aside from the keying incident, no other complaints of harassment had been leveled against the Plaintiff before this investigation. [R. 24-5, Dunn Aff. at p. 2]

         Robinson reported the results of the interviews to Director of Operations Morrison, who was “shocked” to hear the allegations and responded that it was a serious matter and that they needed to take it seriously. [R. 24-8, Morrison Depo. at p. 38] On November 9, 2016, the day after the second round of interviews took place, Stidham from human resources and Robinson both recommended termination. [R. 24-8, Morrison Depo. at p. 45] Stidham emailed Robinson discussing grounds for the Plaintiff's termination: “[p]rofanity . . . [t]hreatening, harassing, intimidating fellow [co-workers] . . . and [p]hysical conduct of a sexual nature . . . [including] mooning/flashing.” [R. 24-8, Morrison Depo. at pp. 44-45; R. 24-10, Email from Stidham to Robinson] After this point, Morrison became actively involved. Id. at pp. 39-40.

         On the next day, November 10, 2016, Morrison, Robinson, and Stidham met with employees and took voluntary written statements from employees whom Robinson and Stidham had already interviewed. [R. 24-8, Morrison Depo. at pp. 39, 41, 43-44] Morrison testified that she did not recall asking any employees follow-up questions about their statements. [R. 24-8, Morrison Depo. at p. 52] Morrison acknowledged that the allegations were “bizarre, ” but testified that the termination decision was based on the general sentiment in the employee statements that the Plaintiff was a “bully”[11] “[o]r intimidating other employees” and that because the majority of the staff shared this sentiment, dates and times of alleged incidents were not that important. [R. 24-8, Morrison Depo. at pp. 56, 58-59] Morrison also testified that “ten to twelve employees” or “60 percent of office personnel . . . had made some sort of statement” about the Plaintiff, but that the witness statements were “a factor in the decision” but “not the entire reason.” [R. 24-8, Morrison Depo. at p. 37]

         That same day, Robinson and Stidham[12] met with the Plaintiff and told her about the complaints, including “flashing and mooning and bullying, ” as well as the “mooing, ” all of which the Plaintiff denied. [R. 24-7, Robinson Depo. at p. 91] Per the recommendation of Human Resources, the Plaintiff was suspended that same day rather than terminated immediately; she was then terminated on November 16, 2016. [Id.; R. 24-8, Morrison Depo. at p. 61] The termination notice stated that

[s]everal instances of misconduct on [the Plaintiff's] part have been recently discovered. There have been instances of profanity (flipping coworkers off), as well as physical conduct of a sexual nature (mooning/flashing). These behaviors are inappropriate in the workplace and completely unacceptable. Furthermore, they violate Baptist's Sexual and Workplace Harassment Policy. [The Plaintiff] was issued a final warning on 1/14/16 [for violation of the Defendant's policy protecting HIPAA-protected information from unauthorized access], which stated that any additional issues in performance would result in termination. At this time, [the Plaintiff] will be terminated due to her behavior and misconduct.

         [R. 24-2, Employee Counseling and Corrective Action Form at p. 1] Morrison testified that no one in the course of the investigation ever indicated to her that the Plaintiff had a son who had been diagnosed with HIV, and that she was not aware of this information at the time. [R. 24-8, Morrison Depo. at p. 62] Plaintiff does not allege that any of the complaining employees brought up Cartwright's HIV-positive status at any time. There appears to be no dispute that the actual decisionmakers (whom the Defendant claims were Morrison, Robinson, and Stidham) did not know about Cartwright's HIV-positive status at any time before Plaintiff's suspension or termination. [Compare R. 23-1, Summary Judgment Memo. at p. 12 (asserting that Robinson, Stidham, and Morrison were the actual decisionmakers and did not know about Cartwright's HIV) with R. 24, Plaintiff's Response at p. 16 (arguing that whether the decisionmakers were aware is not determinative due to the cat's paw theory)]

         II. DISCUSSION

         Summary judgment is proper where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When determining a motion for summary judgment, a court must construe the evidence and draw all reasonable inferences from the underlying facts in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Lindsay v. Yates, 578 F.3d 407, 414 (6th Cir. 2009). The court may not “weigh the evidence and determine the truth of the matter” at the summary judgment stage. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 265 (1986). When, as here, the defendant moves for summary judgment, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 252. The initial burden of establishing no genuine dispute of material fact rests with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court “need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3). If the moving party satisfies this burden, the burden then shifts to the nonmoving party to produce “specific facts” showing a “genuine issue” for trial. Id. at 324. Where “a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact, ” the Court may treat that fact as undisputed. Fed.R.Civ.P. 56(e).

         A fact is “material” if the underlying substantive law identifies the fact as critical. Anderson, 477 U.S. at 248. Thus, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. A “genuine” issue exists if “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249.

         A. Americans with Disabilities Act Claim

         The Plaintiff's first claim is an associational discrimination claim under the ADA. The ADA prohibits, among other things, “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” 42 U.S.C.A. § 12112(b)(4).

         Because the Plaintiff does not offer direct evidence of discrimination, the Court must analyze this claim through “a McDonnell Douglas-like burden-shifting test.” Stansberry v. Air Wisconsin Airlines Corp., 651 F.3d 482, 487 (6th Cir. 2011). Under this framework, a plaintiff must first make out a prima facie case of impermissible discrimination by showing “(1) the employee was qualified for the position; (2) the employee was subject to an adverse employment action; (3) the employee was known to be associated with a disabled individual; and (4) the adverse employment action occurred under circumstances that raise a reasonable inference that the disability of the relative was a determining factor in the decision.” Id. The burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. Marshall v. The Rawlings Co. LLC, 854 F.3d 368, 382, 384 (6th Cir. 2017) (stating rule in the context of FMLA retaliation claim, then applying it to FLMA and ADA retaliation and claims). This burden is one of production, not persuasion. Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 349 (6th Cir. 2012) (Title VII context). Once the employer has done so, the burden shifts back to the plaintiff to show that the employer's proffered reason is pretextual. Id. at 347.

         Where an employee does not allege discriminatory bias on the part of those who made the ultimate decision to take an adverse employment action, but instead on the part of their subordinates (known as the “cat's paw” theory), the analysis takes on an additional, separate step. See Rawlings, 854 F.3d at 379-80, 384 (describing cat's paw liability in the context of FMLA retaliation claim, then applying the same analysis to ADA retaliation claim) (citing Chattman, 686 F.3d at 347 and DeNoma v. Hamilton Cty. Court of Common Pleas, 626 Fed.Appx. 101, 105 (6th Cir. 2015)). “In the employment discrimination context, ‘cat's paw' refers to a situation in which a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action. . . . A plaintiff alleging liability under the cat's paw theory seeks to hold his employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision.” Rawlings, 854 F.3d at 377 (quotation marks omitted) (citing EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles, 450 F.3d 476, 484 (10th Cir. 2006) and Staub v. Proctor Hosp., 562 U.S. 411, 415 (2011)). The Court will first examine cat's paw liability in this case, and then turn to the burden-shifting framework.

         a) Cat's Paw Liability

         The record is clear that none of the decision-makers knew about Cartwright's HIV-positive status. The Plaintiff points to no evidence to dispute this. Consequently, the only way the Plaintiff's claims can survive is under the cat's paw theory. However, the Court does not believe that the cat's paw theory should apply to this case. The Plaintiff failed to cite, and the Court is unable to find, a single Sixth Circuit case applying the cat's paw theory to the actions of co-workers with no more influence over decision-makers than the mere ability to report others' misconduct. The Plaintiff falsely claimed that “the Sixth Circuit presumes that cat's paw liability can arise from the discriminatory actions of co-workers in addition to supervisors.” [R. 24, Plaintiff's Response at p. 13 (quoting Seoane-Vazquez v. Ohio State Univ., 577 Fed. App'x 418, 428 n.4 (6th Cir. 2014)).] That is not the law. In reality, Seoane-Vazquez, examining a tenure decision, noted in a footnote that “[i]n the context of tenure decisions, the line between coworker and supervisor is significantly blurred, and even a few colleagues can wield dispositive influence over a plaintiff's academic future, ” then “assume[d]” that cat's paw liability could apply in that context, but found the claim failed anyway. Seoane-Vazquez, 577 Fed. App'x at 428 n.4 (emphasis added) (internal quotation marks and citations omitted). The court did not describe the plaintiff's colleagues as being purely co-workers, much less state a general presumption that cat's paw applies to mere co-workers.

         In Voltz v. Erie Cty., 617 Fed. App'x 417 (6th Cir. 2015), the Sixth Circuit explained in the Title VII context that “the most probative factor of the cat's paw analysis when determining whether an employee is one whose animus may be imputed to an employer is the ‘employee's ability to influence the ultimate decisionmaker.'” Voltz v. Erie Cty., 617 Fed.Appx. 417, 424 (6th Cir. 2015) (citing Chattman v. Toho Tenax America, Inc., 686 F.3d 353 (6th Cir. 2012)). The court went on to examine the Supreme Court's opinion in Vance v. Ball State Univ., 570 U.S. 421 (2013):

Our extension of cat's paw liability is reinforced by the Supreme Court's decision in Vance v. Ball State University, --- U.S. __, 133 S.Ct. 2434, 186 L.Ed.2d 565 (2013). Vance is a Title VII harassment case in which the court held that an employee is a “supervisor” for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim. The ability to take “tangible employment actions” means that the individual can “effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”

Voltz, 617 Fed. App'x at 424 (internal quotation marks and citations omitted).

Chattman and Voltz supply helpful examples of who qualifies for cat's paw liability. Chattman, decided a year before Vance and three years before Voltz, applied the cat's paw theory to a human resources director who misinformed upper management about an investigation process and had made comments including the N-word, “racist language and the threat or suggestion of violence or death based on race.” Chattman, 686 F.3d at 344, 349, 353. In Voltz, the court found the Chattman/Vance standard was met where an employee “(1) interviewed and hired candidates . . .; (2) determined salary increases; and (3) made recommendations regarding whether to terminate employees.” Id. However, the Voltz court found no evidence of discriminatory animus, even though the “supervising” employee in question had (among other things) told the Plaintiff that his “‘command presence' was an issue in a building ‘full of estrogen . . . [and] as a male, he was not going to survive.'” Id. at 425.

         Here, there is no evidence whatsoever that the co-workers who complained about the Plaintiff had any of the supervisory, management or decision-making abilities outlined above. On this record, the sole source of their ability to influence the Defendant was their ability to complain. In the absence of binding authority stating otherwise, the Court does not believe that the cat's paw theory should be expanded to co-workers who have absolutely no ability to influence a decision-maker other than by reporting misconduct. If the mere ability to report misconduct counts as the ability to take a tangible employment action, then the distinction which the Supreme Court drew in Vance, between those who have such abilities and those who do not, is meaningless: all employees have the ability to report to their superiors that other employees are engaging in misconduct. Employers receiving complaints of misconduct would be stuck between a rock and a hard place - unable to immediately fire wrongdoers (and thereby help guard against potential liability for, say, a hostile work environment), but obligated to conduct elaborate investigations in order to also shield against liability for the motivations of mere co-workers making the complaints. Such a situation runs completely counter to the foundational employment discrimination law principle that employers are free to fire an employee for a good reason (or a bad reason, or no reason) - just not a discriminatory reason. What is more, that does not seem to comport with the policy undergirding the cat's paw theory, of guarding against situations ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.