Third Circuit Examines Cat's Paw Retaliation Theory

In McKenna v. City of Philadelphia, No. 09-3567 (3d Cir. Aug. 17, 2011), the Third Circuit had its first opportunity to address the cat's paw theory of employer liability for discrimination and/or retaliation under circumstances where an adverse employment action was influenced, but not ultimately made, by an employee with discriminatory or retaliatory animus. The Third Circuit held that, where the plaintiff seeks to hold an employer liable for the improper motives of a non-decisionmaker, the burden shifts from the plaintiff to the employer to prove that the decision was not substantially caused or influenced by the biased non-decisionmaker.

Background

Raymond Carnation, a terminated police officer, filed a Title VII claim against the City of Philadelphia, arguing that his discharge was in retaliation for protesting the discriminatory treatment afforded his African American colleagues. At trial, the plaintiff produced evidence that he had complained to