Thursday, January 26, 2006

Direct evidence of the wrong guy's bad motive

In Baqir v. Principi, the Fourth Circuit in an opinion by Judge King, joined by District Judge Harwell with Judge Gregory dissenting in part, affirmed the entry of summary judgment on all of the plaintiff doctor's employment discrimination claims related to the termination of his employment as a doctor at Veterans Administration hospitals in North Carolina.

Judge Gregory's dissent was limited to the age claim. On age, alone among the several claims, the plaintiff claimed to have direct evidence, as one member of the board that recommended his termination told the plaintiff's wife over the telephone that he was being run off because of his age, that his kind of work was a young man's game.

Judge King allowed that this evidence did not create an issue for the jury, because the speaker was not the ultimate decisionmaker, but instead he was on the board two steps from removed from the medical director, who made the final decision. Judge King concluded that there was no evidence linking this direct evidence to the medical director, and also that there was no evidence that the medical director merely rubber stamped the recommendations he received.

Judge Gregory on the other hand was of the view that the decision making was all done together, and that there was evidence that the decisionmakers did not actually consider the plaintiff's lack of credentials when they were deciding to get rid of the plaintiff.

I think that both Judge King and Judge Gregory went too far in attributing the one board member's remarks to the entire credentials board, but I don't guess the point was critical to the conclusions of either judge.

I once wrote an article about proving the bad motive of a local government board in section 1983 cases, and one of the things discussed was when does the bad motive of the subordinate, like in Baqir, get attributed to the decisionmaker:

A number of courts have found that when the Board acts as a “rubber-stamp” or “cat’s-paw” for others who were illegally motivated, that motivation may be attributed to the Board. See Rios v. Rossotti, 252 F.3d 375, 382 (5th Cir. 2001) (“Statements of non decision makers become relevant, however, when the ultimate decision maker’s action is merely a ‘rubber stamp’ for the subordinate’s recommendation”); Azzaro v. County of Allegheny, 110 F.3d 968, 974 (3d Cir. 1997) (“To hold otherwise would be to grant public officials carte blanche to retaliate against employees as long as the retaliation is formally effectuated by the ‘rubber stamp’ approval of another public agent”); Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990) (if a committee “acted as the conduit of a [supervisor’s] prejudice -- his cat’s paw -- the innocence of its members would not spare the company from liability”); Saye v. St. Vrain Valley School Dist. RE-1J, 785 F.2d 862, 867 (10th Cir. 1986) (“Where this line of causation exists, and the principal or superintendent predicated their recommendations on constitutionally impermissible reasons, these reasons become the basis of the decision by the Board members”); Haimowitz v. University of Nevada, 579 F.2d 526, 530 (9th Cir. 1978) (“where recommendations form the basis for the nonretention decision, this input is critical”); Bertot v. School Dist. No. 1, Albany County, 522 F.2d 1171, 1181 (10th Cir. 1975) (“The recommendation to the Personnel Committee, its recommendation to the Board, and the Board’s reasons for non-renewal of her contract are of critical importance in deciding whether the action adverse to her was for exercise of her constitutional rights”); Jamieson v. Poughkeepsie City School Dist., 2002 WL 480567 at *16 (S.D.N.Y.) (“a reasonable jury could find that Samselski’s alleged bias infected the overall decisionmaking process, even if she did not use racial animus to convince her fellow Board members to oust plaintiff”); McHugh v. Board of Educ. of Milford School Dist., 100 F.Supp.2d 231, 241-43 (D. Del. 2000) (denying summary judgment on “rubber stamp” theory, citing Azzaro).

The rubber-stamp argument fails if the advisors did not recommend the Board’s action or if the Board would have voted the same way regardless of the tainted advice. See Pennington v. City of Huntsville, 261 F.3d 1262, 1270 (11th Cir. 2001) (“Where a decisionmaker conducts his own evaluation and makes an independent decision, his decision is free of the taint of a biased subordinate employee”); Willis v. Marion County Auditor’s Office, 118 F.3d 542, 547 (7th Cir. 1997) (“when the causal relationship between the subordinate’s illicit motive and the employer’s ultimate decision is broken, and the ultimate decision is clearly made on an independent and a legally permissive basis, the bias of the subordinate is not relevant”); Al-Zubaidi v. Ijaz, 917 F.2d 1347, 1351 (4th Cir. 1990) (“We agree that if [one member] sought to sink Al-Zubaidi, then [the lone member] was attempting to sink a ship that already was sinking”); McClure v. Cywinski, 686 F.2d 541, 550 (7th Cir. 1982) (“there is insufficient evidence to support an inference that Cywinski recommended McClure’s termination to Murray,” distinguishing Haimowitz); Malone v. Greco, 1995 WL 222052 at *9 (W.D.N.Y.) (“defendants assert that Mr. Paul had no influence over the Board or individual councilmen to affect the outcome of the vote on any resolution”).

Most courts have held that the Board cannot be liable for acting on the tainted recommendation of its advisors or of a minority of Board members without ratification or at least knowledge of the bad motive. See City of St. Louis v. Praprotnik 485 U.S. 112, 127 (1988) (“If the authorized policymakers approve a subordinate’s decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final”); Matthews, 294 F.3d at 1297-98 (“The final policymaker, however, must ratify not only the decision itself, but also the unconstitutional basis for it . . . A well-intentioned lawmaker who votes for the legislation--even when he votes in the knowledge that others are voting for it for an unconstitutional reason and even when his unconstitutionally motivated colleague influences his vote--does not automatically ratify or endorse the unconstitutional motive”); Beattie v. Madison County School Dist., 254 F.3d 595, 604 (5th Cir. 2001) (“Without a showing that the board had actual knowledge of the alleged improper basis of Jones’s and Acton’s recommendation, the board cannot be liable for the alleged retaliation”); Gattis v. Brice, 136 F.3d 724, 727 (11th Cir. 1998) (plaintiff must “present evidence that Administrator Brice not only accepted the recommendation of his deputy chiefs, but knew of and ratified the improper motives behind their recommendation”); San Filippo v. Bongiovanni, 30 F.3d 424, 446 (3rd Cir. 1994) (“the University would not be liable if, oblivious to the motivation behind the decision to charge San Filippo and to initiate dismissal proceedings, the Board had decided to dismiss San Filippo for wholly legitimate reasons”); Hill v. Clifton, 74 F.3d 1150, 1152 (11th Cir. 1996) (affirming summary judgment under § 1983 when it was not shown that the policymaking official knew of and ratified the improper motives of his subordinates when he accepted their recommendations); Wulf v. City of Wichita, 883 F.2d 842, 869 (10th Cir. 1989) (“The superior fires the employee, believing, falsely in fact, that good grounds exist therefore. In such a situation, it is inconceivable that the superior or the City would be liable”); Flickinger v. School Bd. of City of Norfolk, 799 F. Supp. 586, 593 (E.D. Va. 1992) (“although it was undisputed that the School Board ratified Dr. Carter’s decision, there was not a scintilla of evidence that the School Board members knew of any basis, constitutional or unconstitutional, for Dr. Carter’s decision”).

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