Empress Ambulance Services
Empress Ambulance Services (THEMAJESTIRIUM1 via Youtube)

A woman who claims she was framed, then fired, after complaining about sexual harassment has had her lawsuit reinstated by a federal appeals court.

The U.S. Court for the Second Circuit explicitly recognized so-called “cat’s paw” liability, where an employer can be held liable for being the negligent conduit of an employee’s retaliatory intent.

“In the space of twenty-four hours, Andrea Vasquez faced unwelcome sexual advances in the workplace, complained about that conduct to her employer, and lost her job,” the circuit said in Vasquez v. Empress Ambulance Service, 15-3239-cv.

Vasquez alleged that she was subjected to repeated romantic advances by dispatcher Tyrell Gray almost immediately after joining Empress EMS as an emergency medical technician in July 2013.

On Jan. 8, 2014, after telling Gray she had a boyfriend, she said Gray told her, “I bet I can make you leave your man” and promised to “send … something between you and me.” Later, while Vasquez was out on a shift, she received a text message with an image of Gray’s erect penis, asking “What do you think?”

When she returned to the office the next day, Vasquez said she was embarrassed, distraught and crying. A supervisor assured her the company would deal with the situation and asked her to fill out a formal complaint.

But after making the complaint, she said, Gray “manipulated a text message conversation on his iPhone to make it appear as though a person with whom he had legitimately been engaging in consensually sexual text banter was [Vasquez].”

Gray then took screen shots of portions of the conversation, printed them out and gave them to a company committee. One committee member told Vasquez that Gray showed them a “racy, self-taken photo” that Vasquez allegedly sent him. Vasquez denied it, and said the photo showed only a small fraction of woman’s face, and it was not hers.

The committee believed Gray and fired Vasquez.

Her suit, brought under Title VII of the Civil Rights Act of 1964, was dismissed by Southern District Judge Naomi Reice Buchwald, who said Gray’s retaliatory intent could not be imputed to Empress.

Judges John Walker, Guido Calabresi and Peter Hall vacated that dismissal Monday, saying that “agency principles permit the retaliatory intent of Vasquez’s co-worker to be imputed, as a result of Empress’s alleged negligence, to Empress.”

Writing for the court, Calabresi said the phrase “cat’s paw” was injected into American jurisprudence by Judge Richard Posner, and it derives from an Aesop fable wherein a “wily monkey flatters a naïve cat into pulling roasting chestnuts out of a roaring fire for their mutual satisfaction; the monkey, however, ‘devour[s] … them fast,’ leaving the cat ‘with a burnt paw and no chestnuts’ for its trouble.”

The metaphor now refers to a situation where an employer with no retaliatory motive fires someone after being manipulated by a subordinate who does have such a motive.

“The employer plays the credulous cat to the malevolent monkey and, in doing so, allows itself to get burned—i.e, successfully sued,” Calabresi wrote.

The Second Circuit said the cat’s paw approach is consistent with the court’s precedent, in the employment-discrimination context, that a plaintiff can succeed even without evidence of bias by the “ultimate decision maker, so long as the individual shown to have the impermissible bias played a meaningful role in the [decision-making] process.”

The court said Empress had exposed itself to liability by crediting Gray’s accusations and refusing to consider contrary evidence offered by Vasquez, when it knew or easily could have discovered Gray’s retaliatory animus.

Casey Wolnowski of Phillips & Associates argued for Vasquez.

“There had been some questions that the U.S. Supreme Court has left open with respect to the cat’s paw theory of liability and we are happy that, under the circumstances the Second Circuit answered some of those questions in favor of Ms. Vasquez,” Wolnowski said.

Debra Lynne Wabnik of Stagg, Terenzi, Confusione & Wabnik argued for Empress.