By Darrell R. VanDeusen
Last year, in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), the Supreme Court held that the “cat’s paw” theory of liability could be used in a USERRA case. While the statutory language is different, most commentators expected that it would not be long until the theory was adopted for use under Title VII and other anti-discrimination laws. They were right. In Chattman v. Toho Tenax Am. Inc., 2012 U.S. App. LEXIS 14359 (6th Cir. July 13, 2012), the Sixth Circuit has held that an African-American employee who was given a “final written warning” for engaging horseplay (when white co-workers who engaged in similar behavior were not disciplined) can proceed to trial on the theory the company’s white human resources director’s racial bias was the real reason for the discipline. Chattman’s evidence suggested that the HR director recommended Chattman’s discharge and presented company executives with a false report that other managers concurred in his recommendation. Since this report about Chattman influenced the executives who issued the warning, Chattman could proceed under the Staub based cat’s paw theory.