Retaliatory Discharge Claim Can Proceed To Trial Even Though The Investigation Leading To Discharge Revealed Employee Misconduct

According to a California court of appeals, it was improper for a trial court to sustain an employer's decision to fire a store clerk employee even though the decision was made after an investigation showed the employee had been involved in a confrontation with a night crew supervisor and forced his way into a store after closing hours. The case, which alleged retaliatory discharge in violation of the California Fair Employment and Housing Act, is Reeves v. Safeway Stores, issued on July 29, 2004.

In overturning the trial court's summary judgment in favor of the employer, the appeals court was persuaded by the fact that the employer's investigation was initially requested by a store manager to whom the plaintiff previously complained about possible sexual harassment occurring at the store. Although the investigation was for the most part conducted and completed by someone else from the employer's security department, and was later reviewed by a district manager who had no knowledge of plaintiff's complaints about sexual harassment, the appeals court concluded that there were triable issues concerning whether the store manager had retaliatory motives for requesting and doing initial legwork in the investigation and whether he had "colored" the investigation when reporting his preliminary information to security. Hence, whether or not other persons involved in the investigation and in the decision to terminate plaintiff knew of his complaints about sexual harassment, the court held that there was sufficient evidence from which a jury could find that "the purpose and effect of [their] involvement was merely to effect the will of [the store manager]."

This holding by the court appears to be the first California case to recognize what commonly has been referred to in other federal discrimination cases as the "cat's paw" theory of liability. Under this theory, the actual decision maker who brings about a discharge or other adverse personnel action is alleged to have been an unwitting dupe or instrumentality of another supervisor who acts out of retaliatory or other unlawful motives. While the arguments for applying the theory may be legitimate ones, there inevitably will be cases in which the theory itself conflicts with another principle of employment law: courts and juries should not second guess the employers' policies and procedures for investigating allegations of workplace misconduct. In the Reeves case, the court committed this very infraction by, among other things, going so far as to criticize the investigator's use of certain terminology in his report when describing the players involved in the incident, and his use of disparaging and dismissive language in the report when describing plaintiff's account of the incident.

Persons wishing further information or who have questions or comments about either this case or any of the cases that have appeared on this website can contact any of the attorneys at Epstein, Turner & Song.