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Jarrett Pabst (left) and Tom Pabst
In medieval times, a Lord of the manor had two house pets, a monkey and a cat. The monkey wanted the chestnuts the Lord was roasting over an open fire, but did not want to get burned, so he flattered the cat saying only the cat was smart and quick enough to grab the chestnuts, which they would both share and eat. The cat then put his paws into the fire, burning and singeing his paws, and grabbed multiple chestnuts which the monkey ate all by himself! The innocent cat paid the price for the greedy monkey.
That is the cat’s paw fable.
What does this have to do with employment retaliation claims? There are two ways an employer can be liable for retaliation against a plaintiff employee victim. One way is direct liability, which arises when the employer’s decisionmakers have a retaliatory motive in firing plaintiff. For example, in Cline v. Archdiocese of Toledo, 206 F.3d 651 (6th Cir. 2000), a single female teacher got pregnant, and the school fired her for violating its “morals policy”, which prohibited premarital sex. Nothing whatsoever happened to the male teacher who impregnated her. This selective enforcement by the decision-makers themselves of a perfectly lawful proffered business reason was found to be discriminatory retaliation. No one was lying about anything in the Cline case.
The other way an employer can be liable is by vicarious liability. What if the retaliatory motive comes from a non-decisionmaker, such as a boss/supervisor of the plaintiff. In Gray v. State Farm Mutual Insurance Co., 145 F.4th 630 (6th Cir. 2025), plaintiff, Monica Gray, was a State Farm adjuster who helped a co-employee get ADA benefits which angered her boss/supervisor. The boss/supervisor then sought to retaliate against Plaintiff Gray. He increased scrutiny of her timecards and found “timecard fraud” and reported it to the decisionmakers who also found timecard fraud in their independent investigation. Other employees were guilty of the exact same timecard fraud Plaintiff Gray was doing, but no discipline was meted out to them. Plaintiff Gray told the innocent decisionmakers that it was unlawful retaliation, but the decisionmakers fired her anyhow.
The Court in Gray found these facts gave rise to a prima facie case of retaliation that the jury had to decide. Increased scrutiny often gives rise to evidence of causation, which is a relatively easy element to prove at the MSD stage. Moreover, “proximate cause’ that the retaliatory motive of the boss/supervisor should be imputed vicariously to the innocent decisionmakers was found in the fact that the boss/supervisor reported the timecard fraud to the decisionmakers, which led to Plaintiff Gray being fired. All of this occurred even though no one lied about the timecard fraud, which Plaintiff Gray could not rebut. The decisionmakers “honest belief” that Plaintiff Gray committed timecard fraud and should be fired for it did not prevent the neutral/innocent decisionmakers from becoming the injured “cat’s paw” for the boss/supervisor’s retaliatory motive.
Certainly, some employers will feign self-righteous outrage that an employee who violates a perfectly proper policy of the employer can’t be fired for doing so. But where was State Farm’s self-righteous outrage when it refused to fire other employees who were committing the same timecard fraud as Plaintiff Gray? Why did it refuse to do so? Similarly, where was the self-righteous indignation of the employer in Cline when it refused to fire the male employee who impregnated the single female employee? Both knew the rules were being selectively enforced against the plaintiffs but agreed to do it anyhow. How “innocent” are these employers really? The only party committing a clearly unlawful act is the employers.
Moreover, and most importantly, retaliation does not have to be the only reason, or even the main reason, it just has to be one of the reasons that made a difference in the decision to fire plaintiffs. That’s the law of Michigan. See MCivJI 105.02. Now, no attorney’s or judge’s analysis of a plaintiff employee’s wrongdoing will be complete unless and until the facts of the case are put through the vicarious liability cat’s paw theory of retaliation.
Tom R. Pabst is the president/owner of Tom R. Pabst, P.C., and has been practicing law in the Flint area for over 45 years. His trial experience includes over 80 major trials with substantial verdicts in the following areas of law: wrongful discharge, civil rights, Whistleblower Protection Act, Federal Constitutional rights, personal injury, medical malpractice and commercial litigation. He was the past President of the Genesee County Bar Association (1994-95), past President of the Flint Trial Lawyers Association (1991-94), and past Chairperson of the Bench and Bar Committee.
Jarrett M. Pabst has been practicing law at Tom R. Pabst, P.C. since 2010. He is a graduate of Michigan State University (2004) and Cooley Law School (2009). He has assisted in the preparation and attendance of several trials and is the “tech” expert for the firm. He has also assisted in legal research for many important briefs, including the Michigan Supreme Court Brief in Whitman v. City of Burton, that changed the law for whistleblowers in Michigan.
