‘Cat’s Paw’ Declawed if Bias Played No Role in Termination

By Mark Kobata, Marty Denis

Oct. 18, 2016

Farrell Cherry was terminated by Siemens Diagnostic Inc. after 30 years of employment as a result of a workforce reduction in which two people retired and three others, the lowest performing employees in the district, were let go. Cherry sued Siemens, alleging that his direct supervisor, who gave Cherry his performance reviews, created a racially hostile environment. The federal district court in South Dakota awarded summary judgment to Siemens, finding there was no direct evidence of racial discrimination in Cherry’s termination.WF_1016_LEGAL_LegalBrf1CatsPawImg_302

The U.S. Court of Appeals for the 8th Circuit affirmed. Cherry argued that the lower court should have applied the “Cat’s Paw” theory that applies in situations when a biased subordinate uses someone higher up the ladder as a dupe to intentionally trigger a discriminatory action. The problem, the 8th Circuit reasoned, was that Cherry’s direct supervisor did not know that there was going to be a reduction in force when he gave Cherry the poor reviews. “[The supervisor’s] negative performance reviews, in combination with his … inappropriate comments, may very well have been discriminatory in nature … but it would simply not be possible for [the supervisor] to ‘use [his manager] as a dupe in a deliberate scheme to trigger a discriminatory employment action’ when [the supervisor] did not know in advance about the impending reduction in force.” Cherry v. Siemens Healthcare Diagnostics Inc., Case No. 15-1930, 8th Circuit (July 21, 2016).

IMPACT: An employer can be held liable for an employee’s discriminatory conduct, even if he was not the decision maker, if there is evidence that the employee used the decision maker as a means to trigger a discriminatory or retaliatory action.

Mark T. Kobata and Marty Denis are partners at the law firm Barlow, Kobata and Denis, which has offices in Beverly Hills, California, and Chicago. Comment below, or email

Mark Kobata and Marty Denis are partners at the law firm Barlow, Kobata and Denis, which has offices in Beverly Hills, California, and Chicago.


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