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There used to be a feature in an old sports magazine titled “You Make the Call,” asking readers to put themselves in the position of an umpire or referee. In employment litigation, who “made the call” on a decision to terminate can be a critical element in a case, since the 3rd U.S. Circuit Court of Appeals has held that discriminatory remarks by non-decision makers will be given little if any weight. That is, a comment by someone who is not legally a decision maker will be considered a “stray remark.” On the other hand, a discriminatory remark by a decision maker that is related to the termination may be so-called “direct” evidence of discrimination. The 3rd Circuit recently set the bar as to who will be considered to be a decision maker at what appears to be a very high level in its decision in Foster v. New Castle Area School Dist. REJECTED FOR POSITIONS In 1999, Leanne Foster was a high school biology teacher in the New Castle Area school district, when she applied for both principal and assistant principal positions. Under school district policy and the Pennsylvania School Code, the school district board was responsible for hiring people to fill these positions. However, the school district delegated the authority to determine who would be interviewed for these positions to the superintendent’s office. Within that office, the assistant superintendent, Nicholas DeRosa, was responsible for reviewing each qualified candidate’s file together with any additional information the candidate submitted and then making the determination as to who should be interviewed. If the superintendent was available, DeRosa would consult with him, but such consultation was not necessary. For 13 years, DeRosa had recommended candidates to the board for interviews, and not once had the board gone beyond his recommendations. The court found that for all practical purposes, DeRosa, not the board, was the decision maker as to who would be interviewed for upper-level positions. In this case, DeRosa selected five candidates to be interviewed and, of course, Foster was not among them. Foster brought a claim of sex discrimination against the board, based on previous unspecified discriminatory comments of the board members. The 3rd Circuit affirmed the district court’s decision granting summary judgment on the grounds that DeRosa, not the board, made the decision not to include Foster in the interview process. As such, any comments by board members were nothing more than “stray remarks” that were “insufficient” to support her claim of discrimination. 4TH CIRCUIT CASE RELIED UPON The 3rd Circuit cited a recent decision of the 4th Circuit, Hill v. Lockheed Martin Logistics Mgmt. Inc., in finding that a court must look to the reality of the decision-making process and will only be liable for discrimination of the person who “in reality makes the decision.”That is, even if a subordinate employee influenced the decision but did not make the final decision, comments of the non-decision maker would be “stray remarks.” The Hill case is noteworthy because a petition for certiorari has been filed and the Supreme Court has asked for the solicitor general’s position on the decision. Hill was an aircraft mechanic who claimed that a safety inspector on her work site had called her a “useless old lady,” a “troubled old lady” and a “damn woman.” At the same time that this inspector was making these comments, he issued reports to Hill’s supervisors that ultimately lead to her termination. The 4th Circuit found that although the inspector was in a position to report Hill’s safety and work quality violations to her supervisors, “the mere fact that [the inspector's] opinion was solicited during the course of the decision-making process is insufficient to change the undisputed fact that Hill’s supervisor reached an independent, non-biased decision to terminate her.” The Hill court found that “a biased subordinate … who does not make the final or formal employment decision [will not] become a decision maker simply because he had a substantial influence on the ultimate decision or because he has played a role, even a significant one, in the adverse employment action.” SIGNIFICANT DECISION Foster, when read in conjunction with Hill, is a significant decision for employers and defense counsel. An employee will almost always have had significant interaction with his or her immediate supervisor, and it is often these interactions that the employee seizes upon in attempting to establish the employer’s discrimination. Depending on the employee’s level, however, the actual termination decision may be made by supervisors far removed from the work site and the allegedly discriminatory statements. Foster provides what appears to be a level of “discrimination insulation” for the employer that requires separate and independent investigations before terminating, even if the termination is based on the recommendation of the immediate supervisor. The key, as recognized by Foster, is that the ultimate decision cannot be a “rubber stamp” of the recommendation from the subordinate. Other courts have said that the final decision maker cannot be the “cat’s paw” of the so-called “biased subordinate.” In order to take advantage of Foster and Hill, an employer will need to establish that the ultimate decision maker made an independent evaluation and was unbiased in that review. Sid Steinberg is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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