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Adult diapers at 50th birthday party didn’t prove ‘cat’s paw’ age bias, 6th Circuit says

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A former paralegal in Michigan failed to show she was fired because of her age after a lawyer she was later assigned to work with threw her an office party for her 50th birthday that included adult diapers, fake pill bottles and a wheelchair, according to an April 23 ruling by the 6th U.S. Circuit Court of Appeals (Liebau v. Dykema Gossett, PLLC).

Around the time of the party, the lawyer also allegedly began asking the paralegal if she was going to retire and refused to remove the wheelchair from the paralegal’s workstation, where it had been placed following the party, court documents reflected.

A few years later, after consulting with the law firm’s CHRO, the office administrator — the paralegal’s formal supervisor — put her on a 90-day probation and fired her when her probation ended. Her termination letter cited her failure “to maintain professional and respectful conduct,” comply with firm’s policies and improve her performance.

Asserting a “cat’s paw” theory of liability, the paralegal claimed the lawyer used age bias against her to influence the office administrator’s decision. She sued the law firm for allegedly violating the Age Discrimination in Employment Act and Michigan’s Elliott-Larsen Civil Rights Act.

The 6th Circuit rejected her claim and affirmed summary judgment for the law firm.

Under the “cat’s paw” theory, an employer may be liable for discrimination even if the person making the adverse action decision harbors no illegal bias against the affected employee, the 6th Circuit pointed out. This can happen when a biased supervisor with no disciplinary authority uses their influence to cause a neutral decisionmaker to take the adverse action, the court explained.

Here, the lawyer’s testimony reflected that she had no authority to take actual adverse action against the paralegal, the panel said. Even so, under the “cat’s paw” theory, the lawyer’s actions could demonstrate that she caused the office administrator to take adverse action against the paralegal and therefore, that the reasons stated in the termination letter were a pretext for age discrimination, the panel reasoned.

That is, the lawyer managed the paralegal’s work on an ongoing project. Also, the lawyer’s alleged actions of including adult diapers and other age-offensive items at the birthday party, refusing to remove a wheelchair from near the paralegal’s workstation and frequently asking the paralegal about retirement provided “ample basis for a reasonable jury to conclude that [the lawyer] engaged in age-based discrimination,” the court explained.

However, the paralegal’s “cat’s paw” claim fell apart because she couldn’t show the lawyer intended to cause her to suffer an adverse action, the 6th Circuit concluded.

To the contrary, there was no indication the lawyer said anything to suggest she hoped an adverse action would be taken, the court said. Instead, she testified she didn’t believe the paralegal should have been put on probation. Also, her last, largely positive review of the paralegal’s performance ran counter to any suggestion she intended for the office administrator to fire the paralegal, the panel added.

In other cases, courts have found that a jury could infer a biased manager intended to cause adverse action, such as where a non-decisionmaker said they were trying to “get rid of” the plaintiff, the 6th Circuit noted.

HR practitioners may want to consider age discrimination training for all managers, given the persistence of ageism in the workplace and the number of recent headlines about it, particularly among hiring managers.

Last December, for instance, Exact Sciences, a Wisconsin molecular diagnostics company, agreed to pay $90,000 to settle an age discrimination lawsuit by the U.S. Equal Employment Opportunity Commission. According to the EEOC, Exact Sciences allegedly turned down a 49-year-old applicant for a medical sales job because the company sought “more junior” applicants.

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