Last week in Miller v. Department of Justice, __ F.3d __, 2016 WL 7030359 (Fed. Cir. 2016)(Stoll, J.),a thorough exposition was made of an MSPB legal issue in the principal opinion. What made the caseextraordinary is that the three judge panel issued three separate opinions. The second opinion was a dissent (Hughes, J.); the third was a concurrence (Reyna, J.) where the author took the opportunity to introduce into the precedential literature of the Federal Circuit the “cat’s paw” theory, “an ancient fable.” [FN*] (There are two nonprecedential Federal Circuit opinions citing the “Cat’s Paw” theory.)
The Monkey Gets All the Chestnuts: Under the “Cat’s Paw” theory, per the concurrence, “if a supervisor performs an act motivated by antimilitary 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 the relevant statute. Staub v. Proctor Hosp., 562 U.S. 411, 424 (2011)”. (original by the court emphasis)
[FN*] See Angelo D. Catalano, Fear the Monkey: 2nd Circuit Adopts ‘Cat’s-Paw’ Liability, 23 No. 10 N.Y. Emp. L. Letter 1 (Oct. 2016)(‘The cat’s–paw theory comes from an ancient fable in which a monkey flatters a naïve cat into pulling roasting chestnuts out of a fire for their mutual benefit. The monkey takes all the chestnuts, leaving the disappointed cat with nothing but a burned paw to show for his efforts.”).