A recent Seventh Circuit decision is an entertaining read from Judge Posner for those who enjoy fables, and as a reminder of the importance of jury instructions. Cook v. IPC International Corp., 673 F.3d 625 (7th Cir. 2012). In Cook, the plaintiff sued her employer for sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964. The case was tried to a jury, who returned a verdict in favor of the defendant. The plaintiff appealed, and asked for a new trial, based upon problems caused by the jury instructions, and the judge’s answers to questions posed by the jury during their deliberations.

Cook’s attorney objected to the District Court judge’s instruction to the jury “that a decision-maker for IPC fired plaintiff either because she was female or because she complained about sexually harassing comments”, explaining that all the jury had to do is “determine that the plaintiff was discharged from IPC as a result of her gender . . . and/or in retaliation for her resisting in good faith what she believed to be sexually harassing or sexually discriminatory conduct.” The District Court judge rejected the objection without explanation.

The jury appeared to be confused by the judge’s instruction, based upon its request to the judge during its deliberations, for clarification of the “decision-maker” instructions. Over the plaintiff’s objection, the judge responded to the jury’s questions by clarifying that he meant the “sole” decision-maker.

In refusing to set aside the jury’s verdict on motions after trial, the District Court judge determined that the plaintiff could prevail only if the jury found that the plaintiff’s supervisor was the “sole decision-maker” who was solely responsible for firing her. On appeal, the plaintiff argued that the judge replaced Title VII’s “motivating factor causation requirement” with a “sole causation” standard, and therefore committed an error of law. Judge Posner agreed.

In Aesop’s Fable, a monkey induces a cat by flattery to extract roasting chestnuts from a fire. The cat burns its paws doing so, and the monkey makes off with the chestnuts. A coda to the fable observes that the cat is similar to princes who, flattered by the king, perform services on the king’s behalf and receive no reward.

Judge Richard Posner injected the “cat’s paw” fable into United States employment law in Shager v. Upjohn Company, 913 F.2d 398 (7th Cir. 1990), and has used it on occasion in subsequent cases. In 2011, the United States Supreme Court, in Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011), commented upon Judge Posner’s reference to the “cat’s paw” in its decision. Judge Posner referred to the analogy again in Cook.

In Cook, Judge Posner commented upon the effects of use of the “cat’s paw” theory.

“This is all a dreadful muddle, for which we appellate judges must accept some blame because doctrine stated as a metaphor, such as the ‘cat’s paw’ theory of liability, which we introduced into employment discrimination law in Schager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990), see Staub v. Proctor Hospital, 131 S.Ct. 1186, 1190 n. 1, 1192-94, 179 L.Ed. 2d 144 (2011), can be a judicial attractive nuisance; because vague judicial terminology, which as ‘motivating factor’ and ‘proximate cause’ (the latter has been a part of the judicial vocabulary for the last 150 years, yet its meaning has never become clear), see CDX Liquidating Trust v. Venrock Associates, 640 F.3d 209, 214 (7th Cir. 2011); BCS Services, Inc. v. Hartwood, 88 LLC 637 F.3d 750 (7th Cir. 2011), confuses judges, jurors and lawyers alike; and because philosophical conundra such as ‘causation’ present unnecessary challenges to understanding.”

In employment discrimination law, the “cat’s paw” metaphor refers to a situation in which an employee is fired or subjected to some other adverse employment action by a supervisor who him or herself has no discriminatory motive, but who has been manipulated by a subordinate who does have such a motive, and intends to bring about the adverse employment action. Even though no such manipulation is alleged by either party in Cook, the District Court judge invoked it when deciding on the language of the instructions to the jury.

Judge Posner commented in summary as follows:

“From a legal, as distinct from a factual standpoint, the case was simple and should have been presented in all its simplicity to the jury. Jurors are unlikely to understand legal concepts that judges have difficulty understanding. The plaintiff claimed that Spann had fired her because she was a woman, and in retaliation for her complaining about his sexually offensive behavior and his discrimination in favor of his male subordinates. The defendant claimed that she had not been fired, but instead had been offered a transfer, and had not responded to the offer, and had quit when Spann told her to clean out her locker and turn in her keys, whereas if she had wanted to continue working, she would have complained to Colburne, who had told her she wasn’t being fired, and she would have accepted the offered transfer. The jury had to choose between these competing narratives. All the judge had to do was tell the jury that. The jury’s note should have alerted him that the jurors were, in all likelihood seriously confused.”

The lesson learned? If you have a case in the Seventh Circuit, know your fables and zealously advocate for the language in jury instructions in the District Courts because they will likely affect the outcome of your case.

Katherine Charlton

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