Employers sometimes defend retaliation claims by responding that the person or persons making the adverse employment decision was not aware of the plaintiff’s prior complaint. In the employment discrimination context, the Supreme Court and lower federal courts have recognized the “cat’s paw” theory of liability in these circumstances. When an allegedly biased supervisor provides information relied upon by the ultimate decision-maker, the fact that the decision-maker was unaware of the plaintiff’s protected status will not protect the employer from liability. Last month, the Sixth Circuit Court of Appeals recognized use of cat’s paw liability in a Family and Medical Leave Act (FMLA) retaliation claim.

In Marshall v. The Rawlings Co., the plaintiff took FMLA leave for mental health issues. She alleged that her supervisor repeatedly harassed her over the absences. The plaintiff was terminated after the division’s president concluded that her productivity did not meet company standards. While the president was unaware of the prior FMLA leave, the plaintiff contended that her direct supervisor provided input on her performance that influenced the final decision. She claimed that this input was biased based on her use of FMLA leave.

The Sixth Circuit agreed, reversing dismissal of the FMLA retaliation claim. The court analyzed cat’s paw liability in the employment discrimination context, concluding that the same agency principles apply to FMLA retaliation claims. In both situations, a biased lower-level supervisor can influence the ultimate decision-maker who may not have familiarity with the day-to-day aspects of that employee’s work.

This decision agrees with other federal courts that have assumed cat’s paw liability in FMLA claims, but have not conducted a specific review of this question. Of course, this decision does not mean that the plaintiff will prevail. In these cases, the plaintiff may have a difficult time demonstrating that a biased recommendation contributed to the adverse employment decision. When the decision-maker conducts a thorough and independent review of the circumstances, his or her ultimate conclusions may be upheld even in the face of evidence of lower level bias.