CACI No. 2511. Adverse Action Made by Decision Maker Without Animus (Cat’s Paw)

Judicial Council of California Civil Jury Instructions (2023 edition)

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2511.Adverse Action Made by Decision Maker Without Animus
(Cat’s Paw)
In this case, the decision to [discharge/[other adverse employment action]]
[name of plaintiff] was made by [name of decision maker]. Even if [name of
decision maker] did not hold any [discriminatory/retaliatory] intent [or
was unaware of [name of plaintiff]’s conduct on which the claim of
retaliation is based], [name of defendant] may still be liable for
[discrimination/retaliation] if [name of decision maker] followed a
recommendation from or relied on facts provided by another person who
had [discriminatory/retaliatory] intent.
To succeed, [name of plaintiff] must prove both of the following:
1. That [name of plaintiff]’s [specify protected activity or attribute] was
a substantial motivating reason for [name of other person]’s
[specify acts on which decision maker relied]; and
2. That [name of other person]’s [specify acts on which decision maker
relied] was a substantial motivating reason for [name of decision
maker]’s decision to [discharge/[other adverse employment action]]
[name of plaintiff].
New December 2012; Revised June 2013, May 2020, November 2020
Directions for Use
Give this instruction if the “cat’s paw” rule is a factor in the case. Under the cat’s
paw rule, the person who actually took the adverse employment action against the
employee was not acting out of any improper animus. The decision maker, however,
acted on information provided by another person who was acting out of
discriminatory or retaliatory animus with the objective of causing the adverse
employment action. The decision maker is referred to as the “cat’s paw” of the
person with the animus. (See Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th
95, 100 [16 Cal.Rptr.3d 717]; McGrory v. Applied Signal Technology, Inc. (2013)
212 Cal.App.4th 1510, 1536 [152 Cal.Rptr.3d 154] [accepting the legal premise that
an employer may be held liable on the basis of a non-supervisors discriminatory
motivation].) The cases have not yet defined the scope of the cat’s paw rule when
the decision maker relies on the acts of a nonsupervisory coworker or other person
involved in the employment decision.
The purpose of this instruction is to make it clear to the jury that they are not to
evaluate the motives or knowledge of the decision maker, but rather to decide
whether the acts of another person with animus actually caused the adverse action.
Give the optional language in the second sentence of the first paragraph in a
retaliation case in which the decision maker was not aware of the plaintiff’s conduct
that allegedly led to the retaliation (defense of ignorance). (See Reeves, supra, 121
Cal.App.4th at pp. 106-108.)
Element 1 requires that the protected activity or attribute be a substantial motivating
reason for the retaliatory acts. Element 2 requires that the other person’s improper
motive be a substantial motivating reason for the decision makers action. (See
Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392,
294 P.3d 49]; see also CACI No. 2507, “Substantial Motivating Reason”
In both elements 1 and 2, all of the other person’s specific acts need not be listed in
all cases. Depending on the facts, doing so may be too cumbersome and impractical.
If the specific acts are listed, the list should include all acts on which plaintiff
claims the decision maker relied, not just the acts admitted to have been relied on
by the decision maker.
Sources and Authority
“This case presents the question whether an employer may be liable for
retaliatory discharge when the supervisor who initiates disciplinary proceedings
acts with retaliatory animus, but the cause for discipline is separately
investigated and the ultimate decision to discharge the plaintiff is made by a
manager with no knowledge that the worker has engaged in protected activities.
We hold that so long as the supervisors retaliatory motive was an actuating . . .
cause of the dismissal, the employer may be liable for retaliatory discharge. Here
the evidence raised triable issues as to the existence and effect of retaliatory
motive on the part of the supervisor, and as to whether the manager and the
intermediate investigator acted as tools or ‘cat’s paws’ for the supervisor, that is,
instrumentalities by which his retaliatory animus was carried into effect to
plaintiff’s injury.” (Reeves, supra, 121 Cal.App.4th at p. 100.)
“We do not suggest that discrimination must be alone sufficient to bring about an
employment decision in order to constitute a substantial motivating factor. But it
is important to recognize that discrimination can be serious, consequential, and
even by itself determinative of an employment decision without also being a ‘but
for cause.” (Harris,supra, 56 Cal.4th at p. 229.)
“Requiring the plaintiff to show that discrimination was a substantial motivating
factor, rather than simply amotivating factor, more effectively ensures that
liability will not be imposed based on evidence of mere thoughts or passing
statements unrelated to the disputed employment decision. At the same
time, . . . proof that discrimination was a substantial factor in an employment
decision triggers the deterrent purpose of the FEHA and thus exposes the
employer to liability, even if other factors would have led the employer to make
the same decision at the time.” (Harris,supra, 56 Cal.4th at p. 232, original
“This concept - which for convenience we will call the ‘defense of
ignorance’ - poses few analytical challenges so long as the ‘employer is
conceived as a single entity receiving and responding to stimuli as a unitary,
indivisible organism. But this is often an inaccurate picture in a world where a
majority of workers are employed by large economic enterprises with layered
and compartmentalized management structures. In such enterprises, decisions
significantly affecting personnel are rarely if ever the responsibility of a single
actor. As a result, unexamined assertions about the knowledge, ignorance, or
motives of ‘the employer may be fraught with ambiguities, untested
assumptions, and begged questions.” (Reeves, supra, 121 Cal.App.4th at p. 108.)
“[S]howing that a significant participant in an employment decision exhibited
discriminatory animus is enough to raise an inference that the employment
decision itself was discriminatory, even absent evidence that others in the
process harbored such animus.” (DeJung v. Superior Court (2008) 169
Cal.App.4th 533, 551 [87 Cal.Rptr.3d 99]).
“[W]e accept Employee’s implicit legal premise that Employer could be liable
for [the outside investigators] discriminatory motivation if the male executives
who actually terminated Employee were merely the cat’s paws of a biased
female investigator.” (McGrory v. Applied Signal Technology, Inc. (2013) 212
Cal.App.4th 1510, 1536 [152 Cal.Rptr.3d 154].)
“Certainly a defendant does not conclusively negate the element of causation by
showing only that some responsible actors, but not all, were ignorant of the
occasion for retaliation.” (Reeves, supra, 121 Cal.App.4th at p. 108.)
“Here a rational fact finder could conclude that an incident of minor and
excusable disregard for a supervisors stated preferences was amplified into a
‘solid case’ of ‘workplace violence,’ and that this metamorphosis was brought
about in necessary part by a supervisors desire to rid himself of a worker who
created trouble by complaining of matters the supervisor preferred to ignore.
Since those complaints were protected activities under FEHA, a finder of fact
must be permitted to decide whether these inferences should in fact be drawn.”
(Reeves, supra, 121 Cal.App.4th at p. 121.)
“Our emphasis on the conduct of supervisors is not inadvertent. An employer
can generally be held liable for the discriminatory or retaliatory actions of
supervisors. The outcome is less clear where the only actor possessing the
requisite animus is a nonsupervisory coworker.” (Reeves, supra, 121 Cal.App.4th
at p. 109 fn. 9, original italics, internal citation omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1025,
1026, 1052, 1053
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, 7:806.5 (The Rutter
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.131 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.37[3][a] (Matthew Bender)

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