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Friday, March 4, 2011

Reservist Fired Based on Anti-Military Animus

Alabama@ Work
By: Tommy Eden, Attorney

Vincent Staub was employed by Proctor Hospital as an angiography technologist as well as a veteran member of the United States Army Reserve. Staub's immediate supervisor scheduled Staub to work on the weekend rotation, creating conflicts with his drill schedule and also scheduled him for extra shifts so, in her words, “he could pay back the department for everyone else having to bend over backwards to cover [his] schedule for the Reserves,…that Staub’s ‘military duty had been a strain on th[e] department…and asked other employees to help her get rid of him.” Staub reported the comments to the Department Head. Unfortunately, he also allegedly made similar comments about Staub’s reservist duties, characterizing his military obligations as "a b[u]nch of smoking and joking and [a] waste of taxpayers['] money."

After Staub complained to the Department Head, Staub was allegedly issued a false "Corrective Action" by the supervisor for purportedly “violating a hospital rule requiring him to stay in his work area whenever he was not working with a patient.” The Hospital rule did not exist. Four months later it as asserted by the supervisor that Staub had left a desk and thus violated the Corrective Action; which he did not. Relying solely on the supervisor’s accusation, the Hospital Administrator fired Staub.

Staub filed suit against Proctor Hospital claiming that his discharge was motivated by hostility to his obligations as a military reservist in violation of Uniformed Services Employment and Reemployment Rights Act (USERRA) and a jury found in his favor and awarded him $57,640 in damages. During the trial Staub argued that while the hospital administrator was not hostile to his military obligations, his supervisor and department head improperly influenced the ultimate adverse employment decision.

In a unanimous opinion, on March 1, 2011, the U.S. Supreme Court held that an employer may be held liable for employment discrimination under USERRA based on the discriminatory animus of an employee who influenced, but did not make, an ultimate employment decision. In this so called “cat's paw" theory of liability [fn1 The term “cat’s paw” derives from a fable conceived by Aesop, put into verse by La Fontaine in 1679, and injected into United States employment discrimination law by Posner in 1990. See Shager v. Upjohn Co., 913 F. 2d 398, 405 (CA7). In the fable, a monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing. A coda to the fable (relevant only marginally, if at all, to employment law) observes that the cat is similar to princes who, flattered by the king, perform services on the king’s behalf and receive no reward], the high court held that "if a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA." Staub v. Proctor Hospital to read full opinion.

Common Sense Counsel: the hospital did not conduct an independent investigation of the allegations on which it relied to terminate Staub which would have enabled the employer to prove its decision maker solely relied on reasons unrelated to the supervisors' original biased comments. There was no evidence of an USERRA policy in the Employee Handbook. The Court held, “if an employer's investigation results in an adverse action for reasons unrelated to the supervisor's original biased action ... then the employer will not be liable.” See 5 Steps to Bullets Proofing You Discharge Decision published in the O&A News 2-27-2011.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, PC and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-501-1540.