Vincent Staub v. Proctor Hospital ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-1316, 08-2255 & 08-2402
V INCENT E. STAUB,
Plaintiff-Appellee,
v.
P ROCTOR H OSPITAL, an Illinois corporation,
Defendant-Appellant.
Appeals from the United States District Court
for the Central District of Illinois.
No. 04 C 1219—John A. Gorman, Magistrate Judge.
A RGUED D ECEMBER 11, 2008—D ECIDED M ARCH 25, 2009
Before M ANION, E VANS, and T INDER, Circuit Judges.
E VANS, Circuit Judge. One would guess that the chances
are pretty slim that the work of a 17th century French
poet would find its way into a Chicago courtroom in 2009.
But that’s the situation in this case as we try to make sense
out of what has been dubbed the “cat’s paw” theory. The
term derives from the fable “The Monkey and the Cat”
penned by Jean de La Fontaine (1621-1695). In the tale, a
clever—and rather unscrupulous—monkey persuades an
unsuspecting feline to snatch chestnuts from a fire. The cat
burns her paw in the process while the monkey profits,
2 Nos. 08-1316, 08-2255 & 08-2402
gulping down the chestnuts one by one. As understood
today, a cat’s paw is a “tool” or “one used by another to
accomplish his purposes.” Webster’s Third New Interna-
tional Dictionary (1976). More on this a little later.
Vincent Staub sued the Proctor Hospital of Peoria,
Illinois, under the Uniformed Services Employment and
Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 et
seq., after he was discharged from his position as an
angiography technologist. An Army reservist, Staub
alleged that the reasons given—insubordination, shirking,
and attitude problems—were just a pretext for discrimina-
tion based on his association with the military. A jury sided
with Staub, and the district court denied Proctor’s renewed
motion for judgment as a matter of law or for a new trial.
On appeal, Proctor argues that the court gave a faulty
instruction regarding the “cat’s paw” theory and, in
connection with that error, improperly admitted evidence
of animus by nondecisionmakers. The cat’s paw theory,
which we will discuss later in more detail, is a way of
proving discrimination when the decisionmaker herself is
admittedly unbiased; under the theory, the discriminatory
animus of a nondecisionmaker is imputed to the
decisionmaker where the former has singular influence
over the latter and uses that influence to cause the adverse
employment action. Brewer v. Board of Trustees of University
of Illinois, 479 F.3d 908 (7th Cir. 2007). In addition to
attacking the way the district court handled this theory,
Proctor says the evidence was insufficient to support a
verdict under it. Staub contests these arguments head-on,
but he also says the premise is flawed. We need not
analyze this as a cat’s paw case, Staub claims, because there
was evidence that there were two decisionmakers, one of
Nos. 08-1316, 08-2255 & 08-2402 3
whom was clearly prejudiced. We start with the facts
viewed in the light most favorable to the verdict.
Staub was a veteran member of the United States Army
Reserve. Like all reservists, he was a part-time soldier,
spending the bulk of his hours in the civilian world. For
Staub, that meant employment as an angio tech for
Proctor. Balancing work and military duties can be a
complicated task, but Staub apparently managed. For a
while, at least. In late 2000, some 10 years after he was
hired, things began to grow a little tense.1
It was around that time that Janice Mulally, second in
command of the Diagnostic Imaging Department, began to
prepare the department work schedules. Staub would
notify Mulally of his drill and training obligations, which
occupied one weekend per month and two weeks during
the summer. Before Mulally took over scheduling, Staub
1
Though we start our narrative in 2000—as that is when Staub
alleges his military-based problems arose—Staub’s employee file
was already thick by that date. In 1998, Proctor fired Staub
(temporarily, as it turns out) for refusing to work past his
scheduled shift. Staub was reinstated after filing a grievance, but
with certain conditions in place. Those conditions addressed
perceived weakness in availability, attitude, and communica-
tion. For instance, Staub was to communicate with his supervi-
sor whenever he left his work area, and he was warned that
“any insubordination, immature behavior, unprofessionalism
or lack of support of [a] management decision[] w[ould] be
grounds for immediate dismissal.” This is relevant, as we
shall see, because Proctor says Staub’s latest termination was
due to similar insubordination and shirking of duties.
4 Nos. 08-1316, 08-2255 & 08-2402
had weekends off. But Mulally placed Staub back in the
weekend rotation, creating conflicts with his drill schedule.
Mulally did this even though she had advance notice
of Staub’s military obligations, and when Staub ap-
proached her about the issue she became agitated. Begin-
ning in 2000, the scheduling conflicts were only “occa-
sional,” but Mulally’s attitude reflected a deeper prob-
lem. Mulally responded to Staub’s questions by throwing
him out of her office and saying she “didn’t want to deal
with it.” Staub found some relief by going to department
head Michael Korenchuk, yet it was far from complete.
Sometimes Mulally would change Staub’s schedule after
Korenchuk spoke with her, but other times she would post
a notice on the bulletin board stating that volunteers were
needed to cover the drill weekends, portraying Staub as
irresponsible. And occasionally Mulally made Staub use
his vacation time for drill days or scheduled him for
additional shifts without notice. Mulally made her reasons
plain: She called Staub’s military duties “bullshit” and said
the extra shifts were his “way of paying back the depart-
ment for everyone else having to bend over backwards to
cover [his] schedule for the Reserves.” And it came as no
surprise that Korenchuk did little to remedy the situation.
Although Korenchuk only commented about Staub’s
reserve duties on a “couple different occasions,” these
comments were none too subtle. Korenchuk characterized
drill weekends as “Army Reserve bullshit” and “a b[u]nch
of smoking and joking and [a] waste of taxpayers[’]
money.”
Bad as that was, things became worse in 2003. In Febru-
ary of that year, Staub was called to active duty for a
period of up to one year. Though unforeseen circum-
Nos. 08-1316, 08-2255 & 08-2402 5
stances cut the tour short at the 92-day mark, Staub’s
return home was less than pleasant. Korenchuk told one of
Staub’s coworkers, Amy Knoerle, that Mulally was “out to
get” Staub. Knoerle was at a loss because she saw
nothing in Staub but a hard worker and team player.
However, she noticed that whenever Staub approached
Mulally about drill obligations, Mulally would roll her
eyes and make sighing noises.
Knoerle left her post in July of 2003, to be replaced by
Leslie Sweborg. Two weeks into the job, Sweborg met
Mulally and another coworker, Angie Day, for drinks after
work. Expecting nothing more than casual chit-chat,
Sweborg was shocked when the conversation turned to
Staub. Mulally was blunt: “She said that [Staub’s] military
duty had been a strain on the[] department” and “she did
not like him as an employee.” So Mulally asked Sweborg
“to help her get rid of him.” Sweborg refused. In her
opinion, Staub was always competent and professional,
and there was no reason for such animosity.
Day, on the other hand, shared Mulally’s dislike of
Staub. In a departmental meeting on December 9, 2003,
Day said Staub failed to train her properly and always
seemed to “disappear” when help was needed. Sweborg
defended Staub—saying he was a solid trainer and “just as
available as any other tech in the department”—but
Mulally shot her down. Mulally told Sweborg she “didn’t
know what [she] was talking about.” 2
2
Apparently she did, at least to some degree. The very next
day, Korenchuk completed Staub’s annual evaluation, giving
(continued...)
6 Nos. 08-1316, 08-2255 & 08-2402
In any case, the tide was turning against Staub, and his
military obligations were at least peripherally involved. On
January 9, 2004, Staub received an order to report for
“soldier readiness processing,” a precursor to another
round of active deployment. Staub gave a copy of the
order to both Korenchuk and Mulally, and Korenchuk
became apprehensive. He asked Staub several times per
week when he would have to ship out. Day had resigned
by this point, leaving Sweborg and Staub as the only two
angio techs. If Staub went on active duty, Korenchuk
would have to use “rent-a-techs,” placing strain on the
department’s budget.
One might think this enhanced Staub’s job security, but
not so. On January 27, 2004, Mulally gave Staub a written
warning accusing him of shirking his duties. A bit of
background information is necessary to understand what
Staub allegedly failed to do, because it bore no connection
to angiography. The Diagnostic Imaging Department
(headed by Korenchuk) was divided into two units: one
unit for angiography, and a far larger unit for traditional
diagnostic imaging services like radiology, mammography,
ultra sounds, CAT scans, and MRIs. Though they normally
stuck to their speciality, angio techs were trained to work
in both units and therefore had the ability to help out
with radiology and the like when the need arose and the
2
(...continued)
him an impressive score of 97.53 out of 100. To be fair, though,
Staub’s evaluations from years past were not so sparkling; his
attitude, professionalism, and ability to work well with others
were noted as constant weaknesses. See supra n.1.
Nos. 08-1316, 08-2255 & 08-2402 7
circumstances permitted. According to Mulally, however,
Staub didn’t respect that arrangement.
On the morning of January 26, a worker from general
diagnostics called Mulally to see if any of the angio techs
were free to help out. Mulally in turn called Sweborg and
asked if she and Staub had any patients. Sweborg said they
didn’t and, according to Mulally, later admitted they were
completely free from 8:30 to 9:45 a.m. Nevertheless,
Sweborg and Staub failed to lend a hand. Mulally therefore
issued Staub a written warning—Sweborg received one
the next day—noting that he had already been warned
about this behavior several times. But Staub and Sweborg
dispute all that. They say they had an angio patient at
8:30 a.m., and although that case was ultimately cancelled
by the doctor, they learned of the cancellation only
15 minutes prior to the call for help in general diagnostics,
to which they immediately responded. Further, according
to Sweborg and Staub, they had never before been in-
structed to report automatically to general diagnostics
if they did not have angio cases. Staub thus refused to
sign the warning, and he asked Korenchuk (who ap-
proved the action) why he was being targeted. Korenchuk
said Mulally “had all of the pertinent facts,” and he just
signed the warning “to get her off of his back.” So the
warning stood, and so did its instructions for the future.
Going forward, Staub was to “report to Mike [Korenchuk]
or Jan [Mulally] when [he] ha[d] no patients and [the
angio] cases [we]re complete[d].” He would also “remain
in the general diagnostic area unless [he] specified to
Mike or Jan where and why [he would] go elsewhere.”
8 Nos. 08-1316, 08-2255 & 08-2402
This discipline of Staub emboldened Mulally. Shortly
afterwards she called Staub’s Reserve Unit Administrator,
Joseph Abbidini, in Bartonville, Illinois. Mulally had called
Abbidini on a prior occasion to confirm that Staub was
actually a member of the Reserves, but now she wanted
to know if Staub could be excused from some of his
military duties. Mulally asked Abbidini if Staub really
had to attend two-week training in the summer because
he was needed at work. Abbidini stated that the training
was mandatory. Most Reserve members have outside
employment, he explained, so excusing Staub would set
an ugly precedent. Mulally’s response? She called
Abbadini an “asshole” and hung up. (Again, we add that
we are, as we are required to do at this stage of the pro-
ceedings, taking all facts in the light most favorable to
Mr. Staub.)
After all this, there can be little dispute that Mulally
didn’t like Staub, and that part of this animus flowed from
his membership in the military. But it was Day’s beef with
Staub—not Mulally’s—that would ultimately get the ball
rolling towards termination. On April 2, 2004, Day had a
meeting with Korenchuk, Linda Buck (vice-president of
Human Resources), and R. Garrett McGowan (chief
operating officer). Day was upset with Korenchuk because
she complained to him about Staub and he did nothing
in response. Day said she had difficulty working with
Staub, he would “absent himself from the department,”
and he tended to be “abrupt.” After Day left the room,
Korenchuk, Buck, and McGowan discussed what they
should do. This wasn’t the first time McGowan had heard
about “availability” problems involving Staub, so he told
Nos. 08-1316, 08-2255 & 08-2402 9
Korenchuk to work with Buck to create a plan that
would solve the issue. They never found time to do
that—Staub ran into trouble again and was fired three
weeks later on April 20.3
The day of reckoning started out normally enough.
Staub and Sweborg worked together in the angio depart-
ment all morning, finishing up around lunchtime. Hungry,
yet mindful of the prior warning, Staub walked to
Korenchuk’s office to tell him that he and Sweborg
were going to lunch. But Korenchuk wasn’t there. So
Staub walked back to the angio suite, placed a call to
Korenchuk’s office, and left a voice mail informing him
they were off to the cafeteria. Staub and Sweborg re-
turned 30 minutes later and went to work on some left-
over filming. Korenchuk showed up a few moments
afterwards, demanding to know where they had been. He
said he was “looking all over” for Staub, and Staub’s
explanation—that they were only at lunch and left a voice
mail—appeased him little. Korenchuk escorted Staub
down to Buck’s office in Human Resources, picking up a
security guard along the way. Korenchuk had met
with Buck earlier in the day—informing her that Staub
3
Though it is clear Staub was fired on the 20th, there is
some ambiguity as to whether the triggering event oc-
curred that day. Staub, Sweborg, and Korenchuk said the event
occurred on the 20th, but Buck claimed it happened on the 19th
and said she mulled the situation over for a day before
settling on a decision. We find the collective recollection of
Staub, Sweborg, and Korenchuk more credible, but either way
it has no effect on the outcome of the case.
10 Nos. 08-1316, 08-2255 & 08-2402
failed to report in as instructed and couldn’t be lo-
cated—so the decision to terminate was already made. As
Staub walked into the room, Buck handed him his pink
slip. The guard then escorted him off the grounds. Sweborg
was not disciplined, though she resigned a few days
later out of disgust.
According to the written notice, Staub was discharged
for failing to heed the earlier warning instructing him
to report to Korenchuk whenever he had no more work
in the angio department and otherwise to remain in the
general diagnostics area. Without the January 27 write-up,
Day’s April 2 complaint, and the event on April 20—all
of which involved unavailability or “disappearances”—
Buck said she would not have fired Staub. Buck’s testi-
mony makes it clear that although she relied on
Korenchuk’s input, the ultimate decision was hers.
Korenchuk “reluctantly agreed” with her decision, but
it was her call to make.
Beyond consulting Korenchuk and reviewing the more
recent incidents, Buck relied on past issues with Staub in
making her decision. She said she heard “frequent com-
plaints” about Staub during her first year with Proctor,
2001. And she knew of two workers who resigned be-
cause of Staub in 2002: an angio tech quit because Staub
made her feel like “gum on the bottom of his shoe,” and a
registered nurse gave up for similar reasons. What’s more,
a recruiter told Buck she had difficulty attracting workers
to angio because Staub “had a reputation.” Among other
things, he was known for flirting with medical students.
Admittedly, however, Buck failed to speak with other
angio techs who worked with Staub, including Sweborg,
Nos. 08-1316, 08-2255 & 08-2402 11
and she had no idea that Mulally and Day wanted Staub
fired. But Buck did review Staub’s employee file, in-
cluding the good (like his most recent annual evaluation)
and the bad (like the January 27 write-up).
Staub filed a grievance following the termination. Staub
insisted that the January 27 write-up—containing the
command he allegedly violated—was fabricated by
Mulally to get him in trouble. Buck did not follow up with
Mulally about this claim—though she did discuss it with
another Human Resources official—and she did not
investigate Staub’s contention that Mulally was out to get
him because he was in the Reserves. Instead, Buck stuck
with her initial assessment: Staub, despite technical
competency, didn’t work well with others and deserved to
be fired for insubordination. Staub’s involvement with
the military played no role in her analysis.
Against this backdrop, Staub faced an uphill battle in
his USERRA discrimination suit. Like other employment
discrimination legislation, USERRA prohibits adverse
action based on a prohibited criterion, in this case military
status. 38 U.S.C. § 4311(a), (c)(1). But also as with other
discrimination legislation, a plaintiff suing under USERRA
does not win by showing prohibited animus by just
anyone. He must show that the decisionmaker harbored
animus and relied on that animus in choosing to take
action. Since Buck was the decisionmaker and there was
no evidence she had a problem with Staub on account of
his membership in the Reserves, Staub was out of luck
under the traditional rubric. But that doesn’t mean he
had no case at all.
12 Nos. 08-1316, 08-2255 & 08-2402
Deploying the cat’s paw theory, Staub sought to attribute
Mulally’s animus to Buck, and therefore to Proctor. He
posited that Mulally fed false information to Buck (i.e., that
he dodged work on January 26, 2004); that Mulally was
motivated to do this because he was a member of the
Army Reserves; and that Buck relied on this false informa-
tion (without vetting it any meaningful way) in deciding
to fire him. The case made it to trial on this theory, where
the jury apparently found it convincing, returning a
verdict in Staub’s favor. Pursuant to the parties’ stipula-
tion, Staub was awarded $57,640 in damages. The court
then denied Proctor’s renewed motion for a new trial
or judgment as a matter of law.
Proctor argues on appeal that the district court mis-
handled the cat’s paw theory (both in terms of instructing
the jury and admitting certain evidence), and also that the
evidence was insufficient. Before reaching those argu-
ments, however, we must address Staub’s invitation to
review this not as a cat’s paw case, but as a traditional
discrimination suit. Staub attempts to skirt the cat’s paw
analysis by arguing that Buck was not the only decision-
maker. Staub says Buck shared that responsibility with
Korenchuk, who admittedly made some anti-military
remarks. If that were the case, it would not matter
whether Buck acted as the cat’s paw, because the jury
could find that a decisionmaker himself was biased. See 38
U.S.C. § 4311(c)(1); Lewis v. City of Chicago, 496 F.3d 645,
651-52 (7th Cir. 2007); Maxfield v. Cintas Corp. No. 2, 427
F.3d 544, 552-53 (8th Cir. 2005). The problem with this
theory is neither its logic nor even its lack of record
support (though that’s doubtful as well). Rather, the
Nos. 08-1316, 08-2255 & 08-2402 13
problem is that Staub failed to present this theory below, so
it is waived on appeal. See Mote v. Aetna Life Ins. Co., 502
F.3d 601, 608 n.4 (7th Cir. 2007). Even if the evidence did
support this new theory, we would be disinclined to
assume the jury entertained it because Staub presented
his case only as a cat’s paw matter. See United States v.
Ienco, 92 F.3d 564, 570 (7th Cir. 1996) (“[W]hen there is
reason to doubt that the jury even considered the only
proper theory under which the defendant can be con-
victed, the verdict cannot be upheld merely because we
are confident that the jury would have convicted had it
considered that theory.”). If Staub wanted to pitch two
alternative theories at trial, he could have done so. But he
chose to stick with the cat’s paw, so now it sticks with
him. And with that, we turn to the applicability
of La Fontaine’s “cat’s paw” to 21st century federal anti-
discrimination law.
In Brewer, we applied the cat’s paw concept to discrimi-
nation law. That case dealt with the “Machiavellian world
of permit parking at the University of Illinois’s Urbana-
Champaign campus, and the ill fortune of a student who
became involved in it.” 479 F.3d at 909. The student,
Lonnell Brewer, was fired from his part-time job after he
was caught with a modified parking tag. Brewer said his
supervisor (Kerrin Thompson) gave him permission to
modify the tag, and she kept this fact a secret because he
was black and she wanted him fired. The evidence of
animus on the part of Thompson was significant, to say the
least. Just before Brewer got the boot, Thompson yelled,
“I have had it with you nigger, get my tag!” Thompson,
however, did not make the decision to terminate. The
14 Nos. 08-1316, 08-2255 & 08-2402
decision instead came from someone higher up the chain
of command—Denise Hendricks—and there was no
evidence that she harbored any racial animus. Under the
normal discrimination framework, that would have been
the end of the road for Brewer’s case. But we held that his
claim could survive if he showed Thompson used
Hendricks as her cat’s paw. We said,
where an employee without formal authority to materi-
ally alter the terms and conditions of a plaintiff’s em-
ployment nonetheless uses her “singular influence”
over an employee who does have such power to harm
the plaintiff for racial reasons, the actions of the em-
ployee without formal authority are imputed to the
employer and the employer is in violation of Title VII.
Id. at 917. And we noted that this influence may be exer-
cised by, among other things, “supplying misinformation
or failing to provide relevant information to the person
making the employment decision.” Id.So Brewer’s case looked strong under this formula—there
was evidence that Thompson was racist, and that she
influenced Hendricks’s decision by withholding the fact
that she told Brewer he could park where he liked. But,
alas, we held against Brewer. It wasn’t fair to impute
Thompson’s animus to Hendricks, we concluded, because
Hendricks looked into the situation for herself; though
she “listened to the information Thompson relayed to her,”
she “did not simply rely on it.” Id. at 919. From this we
derived a simple rule to prevent the cat’s paw theory
from spiraling out of control:
Nos. 08-1316, 08-2255 & 08-2402 15
[W]here a decision maker is not wholly dependent on
a single source of information, but instead conducts
its own investigation into the facts relevant to the
decision, the employer is not liable for an employee’s
submission of misinformation to the decision maker.
Id. at 918. By asking whether the decisionmaker con-
ducted her own investigation and analysis, we respected
the role of the decisionmaker. We were, and remain to this
day, unprepared to find an employer liable based on a
nondecisionmaker’s animus unless the “decisionmaker”
herself held that title only nominally. If the decision-
maker wasn’t used as a cat’s paw—if she didn’t just take
the monkey’s word for it, as it were—then of course the
theory is not in play.
We affirmed this principle in Metzger v. Illinois State
Police, 519 F.3d 677 (7th Cir. 2008). Though we acknowl-
edged the cat’s paw as a viable theory in certain cases, we
held that it was wholly inappropriate in Metzger’s situa-
tion because there was neither evidence of singular influ-
ence nor proof that the decisionmaker’s review was
“anything but independent . . . .” Id. at 682.
Measured against this precedent, we find that there
was insufficient evidence to support a verdict against
Proctor under the cat’s paw theory. But before we
explain why, it is necessary to comment on the way the
trial court handled the matter. We do not fault the court
much for its approach—the judge certainly did an ad-
mirable job given the dearth of case law—but we agree
with Proctor that the division of labor between jury
and court, if not the jury instruction itself, was legally
defective.
16 Nos. 08-1316, 08-2255 & 08-2402
Just before the case went to trial, Proctor filed motions
in limine seeking to exclude evidence of military animus
on the part of individuals, principally Mulally, not in-
volved in the decision to terminate. The court denied the
motions, however, reasoning that the evidence was essen-
tial to the cat’s paw theory. But the court agreed that
animus by a nondecisionmaker is only relevant if she
exercised singular influence over the decisionmaker, and
it instructed the jury to that effect. The instruction read
as follows:
The Defendant is a corporation and can act only
through its officers and employees. Animosity of a co-
worker toward the Plaintiff on the basis of Plaintiff’s
military status as a motivating factor may not be
attributed to Defendant unless that co-worker exer-
cised such singular influence over the decision-maker
that the co-worker was basically the real decision
maker. This influence may have been exercised by con-
cealing relevant information from or feeding false
information or selectively-chosen information to the
person or persons who made the decision to dis-
charge Plaintiff.
If the decision maker is not wholly dependent on a
single source of information but instead conducts its
own investigation into the facts relevant to the deci-
sion, the Defendant is not liable for a non-decision
maker’s submission of misinformation or selectively
chosen information or failure to provide relevant
information to the decision maker. It does not matter
that much if the information has come from a single,
Nos. 08-1316, 08-2255 & 08-2402 17
potentially biased source, so long as the decision maker
does not artificially or by virtue of her role in the
company limit her investigation to information from
that source.
This instruction, we think, is unwieldy—a fact-driven
instruction would have been far more useful4 —but not
technically wrong. It captures the essence of Brewer, telling
the jury that it can only consider nondecisionmaker
animosity in the case of singular influence, and even then
that the employer is off the hook if the decisionmaker
did her own investigation. So we reject Proctor’s chal-
lenge to the instruction itself. But a court faced with the
cat’s paw theory case should not just give an instruction
and ask the jury to sort it all out. The court has a critical
task to perform before giving the instruction or admitting
evidence of nondecisionmaker animus—preferably at the
summary judgment or in limine stage of the proceedings.
Namely, the court should determine whether a reasonable
jury could find singular influence on the evidence to be
presented. If there is not sufficient evidence to support
such a determination, then the court has no business
admitting evidence of animus by nondecisionmakers.
Admitting this sort of evidence would not only be
technical legal error; it would likely be prejudicial due to
4
Instead of saying “the Defendant,” for instance, the court
could have said “Proctor,” replaced “decision maker” with
“Buck,” and so on. Just as juries are ill-equipped to construe
legalese—aren’t we all!—they are more likely to understand
instructions that use facts rather than abstract terms.
18 Nos. 08-1316, 08-2255 & 08-2402
the jury’s tendency to associate the nondecisionmaker’s
remarks with the employer, fairly or not.
As we say, however, we do not fault the court here for
failing to perform this task. Nothing in Brewer, Metzger, or
our other cases on the cat’s paw, see, e.g., Byrd v. Ill. Dep’t of
Pub. Health, 423 F.3d 696 (7th Cir. 2005); Schreiner v. Cater-
pillar, Inc., 250 F.3d 1096 (7th Cir. 2001), impart guidance as
to how a trial court should handle the theory. They say
what the cat’s paw requires, but nothing about the
division of labor between judge and jury. Nevertheless, the
approach we suggest—with the judge making a threshold
determination of whether a reasonable jury could find
singular influence before admitting evidence of nondeci-
sionmaker animus—is supported in the law. Allowing
the jury to entertain the cat’s paw theory and decide
whether there was singular influence, but only upon a
prior determination that there is sufficient evidence for
such a finding, is consistent with Federal Rule of Evidence
104(b). That rule instructs courts to admit conditionally
relevant evidence—here, animosity by a nondecision-
maker—“upon . . . the introduction of evidence sufficient
to support a finding of the fulfillment of the condition.” In
other words, the jury could only properly consider evi-
dence of animosity by Mulally (or any other nondeci-
sionmaker) if the court determined that there was suffi-
cient evidence to support a finding of singular influence
by Mulally (or another) over Buck.
Because the trial court in this case did not follow this
procedure, Staub’s abundant evidence of Mulally’s animos-
ity was erroneously admitted into evidence. And
Nos. 08-1316, 08-2255 & 08-2402 19
this error was prejudicial because the strongest proof of
anti-military sentiment came from the improperly ad-
mitted evidence.
The normal remedy for prejudicial evidentiary error
is a new trial. See United States v. Garcia, 528 F.3d 481, 485
(7th Cir. 2008). However, a new trial is not warranted
where the properly considered evidence is insufficient to
support the jury’s verdict. In that case—assuming the
losing party filed a Rule 50(b) motion for judgment as a
matter of law or a new trial after the verdict, as Proctor
did—judgment should be entered in its favor, see Fed. R.
Civ. P. 50(b); Tate v. Exec. Mgmt. Servs., Inc., 546 F.3d 528,
531 (7th Cir. 2008); Fuesting v. Zimmer, Inc., 448 F.3d 936,
939 (7th Cir. 2006) (citing Unitherm Food Sys., Inc. v. Swift-
Eckrich, Inc., 546 U.S. 394 (2006)). Of course, the standard
is steep. “A verdict will be set aside as contrary to the
manifest weight of the evidence only if no rational jury
could have rendered the verdict.” Moore ex rel. Estate of
Grady v. Tuelja, 546 F.3d 423, 427 (7th Cir. 2008) (internal
quotation marks omitted). Considering the evidence as a
whole, we conclude that Proctor is entitled to judgment.
USERRA states that “[a] person who . . . has
performed . . . service in a uniformed service shall not
be denied initial employment, reemployment, retention
in employment, promotion, or any benefit of employment
by an employer on the basis of that . . . performance of
service . . . .” 38 U.S.C. § 4311(a). A plaintiff suing under
this Act must “demonstrate that he suffered an adverse
employment action and that the adverse action was
motivated in part by his military service.” Maher v. City
20 Nos. 08-1316, 08-2255 & 08-2402
of Chicago, 547 F.3d 817, 824 (7th Cir. 2008). Cf. 38 U.S.C.
§ 4311(c)(1) (explaining that an employer is not liable if,
despite anti-military bias, it would have taken the
action just the same). Staub failed to clear this bar.
The story told by the evidence is really quite plain. Apart
from the friction caused by his military service, the evi-
dence suggests that Staub, although technically competent,
was prone to attitude problems. The fact that he made
some friends along the way (such as Sweborg) doesn’t
diminish the fact that he offended numerous others for
reasons unrelated to his participation in the Reserves. So,
when Staub ran into trouble in the winter and spring of
2004, he didn’t have the safety net of a good reputation.
Even if Staub behaved reasonably on the day of his dis-
charge and the January 27 write-up was exaggerated by
Mulally, his track record nonetheless supported Buck’s
action. Most importantly, Buck took this action free of any
military-based animus, which Staub admits. And the cat’s
paw is not applicable—even setting aside the evidentiary
error—because a reasonable jury could not find that
Mulally (or anyone else) had singular influence over
Buck. To the contrary, the evidence established that Buck
looked beyond what Mulally and Korenchuk said—
remember, Korenchuk supported the firing only “reluc-
tantly”—and determined that Staub was a liability to the
company. We admit that Buck’s investigation could have
been more robust, e.g., she failed to pursue Staub’s
theory that Mulally fabricated the write-up; had Buck done
this, she may have discovered that Mulally indeed bore a
great deal of anti-military animus. But the rule we devel-
oped in Brewer does not require the decisionmaker to be a
Nos. 08-1316, 08-2255 & 08-2402 21
paragon of independence. It is enough that the decision-
maker “is not wholly dependent on a single source of
information” and conducts her “own investigation into
the facts relevant to the decision” Brewer, 479 F.3d at
918. To require much more than that would be to ignore
the realities of the workplace. Decisionmakers usually
have to rely on others’ opinions to some extent because
they are removed from the underlying situation. But to
be a cat’s paw requires more; true to the fable, it requires
a blind reliance, the stuff of “singular influence.” Buck was
not a cat’s paw for Mulally or anyone else. Although
Mulally may have enjoyed seeing Staub fired due to his
association with the military, this was not the reason
he was fired. Viewing the evidence reasonably, it simply
cannot be said that Buck did anything other than exercise
her independent judgment, following a reasonable
review of the facts, and simply decide that Staub was
not a team player. We do not mean to suggest by all this
that we agree with Buck’s decision—it seems a bit harsh
given Staub’s upsides and tenure—but that is not
the issue. The question for us is whether a reasonable
jury could have concluded that Staub was fired because
he was a member of the military. To that question, the
answer is no.
We R EVERSE and R EMAND with instructions to enter
judgment in favor of Proctor.
3-25-09