3-13-12; The 7th Circuit reverses and remands a case following a jury verdict based on a single improper jury instruction! This Illinois-based employer is now facing renewed exposure after...

In Cook, Deborah v. IPC International Corp., the 7th Circuit’s ruling can only be described as frustrating from a business perspective. After what appears to be a situation where Plaintiff had argued their way into a corner and suffered a failure of proof, a jury heard the facts and denied her claim. The 7th Circuit reversed and remanded for a new trial based on an arguably confusing application of law in a jury instruction.

Plaintiff Cook was a mall cop—a security guard at a southern Illinois mall. She alleged she was fired because of her gender. Her employer argued she was not terminated until after and because she had refused a mandatory transfer to another facility. During the proceedings at trial, the issue of the "Cat's Paw" theory came into play, but in a somewhat obfuscated manner. The Cat’s Paw theory of liability takes its title from one of Aesop’s fables. In this ancient tale, a monkey who wants his chestnuts roasted persuades a cat to fetch them, in the process the cat burns its paw. In the context of the 7th Circuit case, the monkey represents Cook's supervisor, and the cat was the regional manager who came in and arguably put forward the transfer offer. If the supervisor, with discriminatory motives, manipulates the higher-level manager into firing the employee, the company can still be liable for sex discrimination, according to the law. However, this theory was not argued at trial.

At all times Plaintiff argued her supervisor was the individual who terminated her employment several days after she was given a transfer offer by the regional manager. Based on Plaintiff’s assertion this was not a Cat’s Paw situation where the supervisor had a singular influence over the regional manager, but a straightforward termination where the supervisor made the decision to terminate her, the trial court issued a jury instruction requiring the jury, if they wanted to find for Plaintiff, to find the supervisor was the sole decision maker for the Defendant. Judge Posner wrote for the unanimous three judge panel, “[t]his is all a dreadful muddle, for which we appellate judges must accept some blame." He described the Cat’s Paw metaphor as "judicial attractive nuisance," and added "[v]ague judicial terminology... confuses judges, jurors and lawyers alike."

In writing for the majority, Judge Posner went on to state the case was legally, if not factually, simple, and should have been presented to the jury in a simple manner. Plaintiff alleged her supervisor fired her because she was a woman. Her employer argued she wasn't fired but quit voluntarily by not accepting a transfer. This is not entirely accurate, as the employer actually asserted Plaintiff was terminated after her refusal to accept the transfer. According to the Judge Posner, a jury only had to choose between those two competing narratives. The ultimate ruling of the 7th Circuit was the question of whether the supervisor was the sole decision maker was not a fact which needed to be found for Plaintiff to prevail upon her case, and therefore the instruction was improper.

A thorough review of the underlying case confirms a confusing collection of arguments, but what is clear is there was an honest question as to what actually happened to Plaintiff at or around the time of her alleged termination. She admitted she was offered a transfer but the circumstances of that transfer were in dispute. All the testimony presented indicated Plaintiff was contacted on multiple occasions after her locker was cleaned out in reference to her decision regarding the transfer offer, and that Plaintiff refused to return phone calls from the regional manager. Combined with the argument Plaintiff was not arguing constructive discharge, her claim becomes very ephemeral at best.

Regardless, as Plaintiff maintained the argument she was terminated by her supervisor, when she admitted she was offered a transfer by the regional manager, it appears she simply painted herself into a corner and suffered a failure of proof. If her supervisor were only carrying out the orders of her employer, the claim would not appear compensable as the only inference would be the supervisor was complying with the transfer ordered by the employer. In order to win under the conditions Plaintiff set up, her supervisor had to be a lone actor, deciding on his own to terminated her employment. Even if the instructions were bad, and unnecessary, we must ask whether they constituted reversible error, given the admission she was offered a transfer.

As stated above, this decision came down just last week, and may still be subject to reconsideration. To fully disclose, we are handling this matter and we have no intention of affecting any future legal or factual outcome—the goal is to cover this legal occurrence from an academic perspective. This article was researched and written by Arik D. Hetue, J. D. who can be reached at ahetue@keefe-law.com. Please feel free to email him for questions or comments, or post them on our award winning blog.