Court Upholds Retaliation Claim Where Disciplinary Panel Was Influenced By Biased Supervisors

Kollman & Saucier
Kollman & Saucier
08/25/2015

In Zamora v. City of Houston, No. 14-20125 (Aug. 19, 2015), the Fifth Circuit Court of Appeals held that it is unlawful to retaliate against an employee because a close family member engaged in protected activity. The court further held that a plaintiff-employees may prove a retaliation claim by showing that a person with retaliatory motive influenced the actual decision maker to take an adverse employment action (the cat’s paw theory of liability).

Affirming judgment for a City of Houston police officer, the court concluded that the Supreme Court’s decision in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), which requires an employee to show that his protected activity was the “but for” cause of unlawful retaliation, does not prohibit use of the cat’s paw theory.

In 2007, members of the Houston Police Department, including Christopher Zamora’s father, sued the City for race discrimination and retaliation. Zamora, a City police officer, joined the lawsuit in September 2008. He sued the City for unlawful retaliation under Title VII of the Civil Rights Act of 1964.

Zamora initially alleged that the City retaliated against him in March 2008 because of his father’s role in the lawsuit against the City. He claimed that the City removed him from an assignment to a high profile sub unit.

After Zamora deposed many supervisors from that sub-unit, his father filed a complaint with the Department’s Internal Affairs Division, claiming that the deponents lied under oath. Internal Affairs investigated the allegations and questioned Zamora and his supervisors. The supervisors “harshly attacked [Zamora’s] credibility and baldly contradicted his factual assertions.” IA concluded that Zamora, and not his supervisors, was untruthful. The Department recommended that Zamora be suspended without pay for 10 days.

While IA was investigating and suspending Zamora, the district court dismissed Zamora’s retaliation claim, reasoning that he could not maintain a retaliation claim based on his father’s protected activity. The Fifth Circuit reversed after the United States Supreme Court decided Thompson v. North American Stainless, LP, 562 U.S. 170 (2011), which held that a plaintiff may base a retaliation claim on the protected activity of a close family member.

The court next considered whether Zamora could prevail based on a cat’s paw theory following Nassar’s “but-for” standard. Joining three other circuit courts, the Fifth Circuit approved the continued use of the cat’s paw theory, noting that Nassar changed only the strength of causation required in a retaliation case, and did not impact the continued viability of the cat’s paw theory.

Clearing these hurdles, the court affirmed judgment in Zamora’s favor. His supervisors were aware that his father had sued the City, and Zamora’s suspension was based entirely upon his supervisors’ statements, which attacked his credibility and reputation. This was sufficient for a jury to find retaliatory animus.

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