Crosbie v. Asante ( 2022 )

250
Argued and submitted January 12; reversed and remanded on appeal; cross-
appeal dismissed as moot October 5, 2022; petition for review denied March 30,
2023 (370 Or 827)
Denese CROSBIE,
an individual, and
Denese Crosbie RNFA, LLC,
an Oregon limited liability company,
Plaintiffs-Respondents
Cross-Appellants,
v.
ASANTE,
an Oregon corporation, and
Asante Ashland Community Hospital, LLC
an Oregon limited liability company,
Defendants-Appellants
Cross-Respondents.
Jackson County Circuit Court
17CV44213; A173018
519 P3d 551
Defendants appeal from a judgment entered after a jury awarded plaintiff
damages for unlawful employment practice under the Oregon Safe Employment
Act (OSEA), ORS 654.062. Defendants assign error to the so-called “cat’s paw”
jury instruction, which allows the jury to impute a subordinate employee’s bias to
the person who made the adverse employment decision if the subordinate some-
how caused the decision-maker’s action. Defendants argue that the instruction
should only be given when the biased employee is a “supervisor,” not a “coworker.”
Held: The “cat’s paw” instruction is appropriate where the biased employee is a
coworker if there is evidence that that biased coworker actually influenced or was
involved in making the adverse employment decision. The instruction in this case
was too broad and there was no evidence that the biased coworkers influenced the
decision beyond making the initial complaints.
Reversed and remanded on appeal; cross-appeal dismissed as moot.
Timothy C. Gerking, Judge.
Robert Koch argued the cause for appellants-cross-
respondents. Also on the opening brief were Anna Sortun,
Paul Balmer, and Tonkon Torp LLP. Also on the combined
reply brief and cross-answering brief were Anna Sortun and
Tonkon Torp LLP.
Cite as 322 Or App 250 (2022) 251
Mark Lansing and Andrew R. Wilson argued the cause
and filed the combined answering and cross-opening brief
for respondents-cross-appellants. On the reply brief on
cross-appeal were Andrew R. Wilson and Black, Chapman,
Petersen & Stevens.
Before James, Presiding Judge, and Lagesen, Chief Judge,
and Kamins, Judge.
KAMINS, J.
Reversed and remanded on appeal; cross-appeal dismissed
as moot.
252 Crosbie v. Asante
KAMINS, J.
Defendants Asante and Asante Ashland Community
Hospital, LLC,1 appeal from a judgment entered after a jury
awarded plaintiff Denese Crosbie damages for unlawful
employment practice under the Oregon Safe Employment
Act (OSEA), ORS 654.062. Asante assigns error to one of
the jury instructions, known as the “cat’s paw” instruc-
tion, which allowed the jury to impute the bias of plaintiff’s
coworkers to Asante in evaluating whether plaintiff’s ter-
mination was the product of impermissible bias. Plaintiff
cross-appeals, assigning error to the trial court’s refusal to
award prevailing party attorney fees. Because we conclude
that the trial court erred in instructing the jury and that
the error likely affected the jury’s verdict, we reverse the
judgment and remand for a new trial and do not reach the
cross appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
Because the historical facts are relevant primarily
to Asante’s challenge to the “cat’s paw” instruction, we recite
those facts “in the light most favorable to the establishment
of the facts necessary to require the instruction,” in other
words, “in the light most favorable to the giving of plaintiff’s
‘cat’s paw’ instruction.” Ossanna v. Nike, Inc., 365 Or 196,
199, 445 P3d 281 (2019).
Crosbie is an experienced and highly skilled
Registered Nurse First Assistant (RNFA) in the field of
eye surgery. She had worked at the Ashland Community
Hospital for 14 years when Asante purchased it in 2013.
Asante terminated Crosbie a few years later, in March 2017.
Crosbie sued, asserting, among other things, that she was
fired in retaliation for complaining about safety issues.
At trial, Asante argued that Crosbie was fired for
her persistent bullying behavior toward other nursing staff.
According to Asante’s witnesses, Crosbie was rude, dismis-
sive, and prevented the other nurses from forming relation-
ships with the surgeons. Several nurses testified that Crosbie
withheld necessary information from them, and even went
1
Except where otherwise noted, we refer to both defendants on appeal as
“Asante.”
Cite as 322 Or App 250 (2022) 253
so far as to sabotage them by fabricating mistakes that they
did not make. For example, Crosbie was issued a correc-
tive action on January 27, 2017, because “[t]hree separate
complaints were received concerning [her] inappropriate
behavior,” including that she “questioned another employee
regarding their practice in a loud, confrontational tone * * *
and humiliated the other individual in front of the patient,
physician and coworkers” and “made a non-solicited deroga-
tory remark regarding one of her coworkers to a physician.”
According to the termination notice, three staff members
reported that Crosbie refused to “assist a new nurse regard-
ing the appropriate medication to use,” then “aggressively
slammed her chair.”
Crosbie, on the other hand, claimed that she was
actually fired in retaliation for reporting safety issues,
including violations committed by the other nurses. She
testified that safety issues increased in frequency after
Asante purchased the hospital due in part to its hiring of
inexperienced nurses, and that she often had to step in to
correct those nurses’ mistakes. In her view, the instances
of “bullying” were actually examples of corrections of other
nurses’ mistakes, and those nurses exaggerated her behav-
ior to protect themselves. For example, she explained that in
the incident other nurses characterized as “confrontational”
and “humiliat[ing],” she had simply asked the other nurse
to confirm the contents of a medication because it was not
properly labelled.
Crosbie asserted five claims for relief, three of which
ultimately went to the jury: unlawful retaliation under ORS
659A.1992 and ORS 659A.030,3 and unlawful employment
2
ORS 659A.199 provides that “[i]t is an unlawful employment practice for
an employer to discharge, demote, suspend or in any manner discriminate or
retaliate against an employee with regard to promotion, compensation or other
terms, conditions or privileges of employment for the reason that the employee
has in good faith reported information that the employee believes is evidence of a
violation of a state or federal law, rule or regulation.” ORS 659A.199(1).
3
ORS 659A.030 (2017) provides that “[i]t is an unlawful employment prac-
tice * * * [f]or any person to discharge, expel or otherwise discriminate against
any other person because that other person has opposed any unlawful practice[.]”
ORS 659A.030(1)(f) (2017), amended by Or Laws 2021, ch 585, § 10; ch 367, § 35;
ch 239, § 4. Because the amendments do not affect our analysis, we refer to the
current version of the statute in this opinion.
254 Crosbie v. Asante
practice under the OSEA, ORS 654.062.4 The crux of all
three claims was whether protected safety complaints were
a “substantial factor” in her termination. In her proposed
jury instructions, Crosbie requested the instruction at issue
here, entitled “Imputation of Subordinate Bias,” otherwise
known as the “cat’s paw” instruction, which allows the jury
to impute a subordinate employee’s bias to the person who
made the adverse employment decision if the subordinate
somehow caused the decision-maker’s action. Crosbie’s pro-
posed “cat’s paw” instruction read:
“You may impute to [the principal decisionmakers regard-
ing Plaintiff’s termination] any biased retaliatory motive
against Plaintiff held by a subordinate, if you find that
their adverse employment decision was not actually inde-
pendent because a subordinate had a biased retaliatory
motive against Plaintiff and that the same subordinate
influenced, affected, or was involved in the adverse employ-
ment decision against Plaintiff.”
Asante objected, arguing that a “cat’s paw” instruc-
tion is only appropriate when the biased coworker is a
“supervisor” not a “peer.” Asante alternatively argued that
the instruction should include a negligence standard, in
that the instruction must require that the employer knew
or should have known about the coworker’s unlawful moti-
vation. The trial court decided to give the instruction with
Asante’s proposed negligence standard:
“Even if Defendants decision-makers did not harbor any
retaliatory intent toward Plaintiff, you may impute to
these individuals a biased retaliatory motive against
Plaintiff if you find the following by a preponderance of the
evidence:
“1) That a subordinate had a biased retaliatory motive
against Plaintiff;
4
ORS 654.062 (2017) provides that “[i]t is an unlawful employment practice
for any person to bar or discharge from employment or otherwise discriminate
against any employee or prospective employee because the employee or prospec-
tive employee has: [o]pposed any practice forbidden by” the OSEA or “[m]ade
any complaint or instituted or caused to be instituted any proceeding under or
related to” the OSEA. ORS 654.062(5)(a) - (b) (2017), amended by Or Laws 2021,
ch 336, § 1; ch 293, § 1; Or Laws 2019, ch 350, § 3. Because the amendments
do not affect our analysis, we refer to the current version of the statute in this
opinion.
Cite as 322 Or App 250 (2022) 255
“2) That the same subordinate influenced, affected or
was involved in the adverse employment decision against
Plaintiff;
“3) That the Defendant’s decision-makers knew, or rea-
sonably should have known, that the subordinate harbored
a retaliatory motive; and
“4) The subordinate’s influence, affect or involvement
was a substantial factor in Defendant’s decision-maker’s
adverse employment decision regarding Plaintiff.”
After the instructions were given and the court asked for
exceptions, Asante reiterated that the instruction was
improper because “cat’s paw” is limited to supervisors and
added that the instruction was not supported by the facts
because “there was no evidence that the peer employees
were aware of the safety reports.”
The jury rendered a split verdict, finding for Asante
on the general unlawful retaliation claims under ORS
659A.030 and ORS 659A.199 and for Crosbie on the safety-
specific retaliation claims under ORS 654.062. It awarded
$470,000 in damages. After trial, Crosbie petitioned for
attorney fees and costs. The court heard oral argument on
the issue, and ultimately denied her request in a supplemen-
tal judgment. On appeal, Asante assigns error to the giv-
ing of the “cat’s paw” instruction, arguing that it misstated
the law and was not supported by evidence in the record.
Crosbie cross-appeals, assigning error to the denial of attor-
ney fees. Our determination in the appeal obviates the need
to address the cross-appeal.
II. STANDARD OF REVIEW
We review jury instructions for legal error.
State v. Harper, 296 Or App 125, 126, 436 P3d 44 (2019). “An
instruction is appropriate if it correctly states the law and is
supported by evidence in the record.” State v. Basham, 301
Or App 498, 499, 456 P3d 658 (2019), rev dismissed, 366 Or
761 (2020) (citation and brackets omitted).
III. ANALYSIS
A. Employment Discrimination and Retaliation
To prevail on a claim of unlawful discrimination
or retaliation under Oregon law, plaintiffs must prove that
256 Crosbie v. Asante
1) they have a protected trait or engaged in a protected activ-
ity, 2) they suffered an adverse employment outcome, and
3) the protected trait or activity was a “substantial factor”
in the adverse decision. Ossanna v. Nike Inc., 290 Or App 16,
28, 415 P3d 55 (2018), aff’d, 365 Or 196, 445 P3d 281 (2019).
The “protected activity” in this case was plaintiff’s reporting
of safety violations.5 The critical question then, which “cat’s
paw” may (or may not) help answer, is whether, viewed as a
whole, the evidence establishes that plaintiff’s reporting of
safety violations was a substantial factor in her termination.
B. The “Cat’s Paw” Instruction
1. The principles of “cat’s paw”
The “cat’s paw” moniker was coined by Judge
Richard Posner, after an Aesop’s fable in which a monkey
tricks a cat into removing chestnuts from a fire, then steals
the chestnuts and leaves the cat with nothing but burnt
paws. See Shager v. Upjohn Co., 913 F2d 398, 405 (7th Cir
1990) (using the phrase “cat’s paw” in employment law for
the first time). In the context of employment law, a biased
employee acts as the monkey who tricks their employer (the
cat) into taking an adverse action against the plaintiff, leav-
ing the employer liable (burned). In other words, it “refers
to a situation in which an employee is fired or subjected to
some other adverse employment action by a supervisor who
himself has no discriminatory motive, but who has been
manipulated by a subordinate who does have such a motive.”
Vasquez v. Empress Ambulance Service, Inc., 835 F3d 267,
272 (2d Cir 2016) (citation omitted); see also Ossanna, 365
Or at 209 (“[A]n employer’s theoretically neutral decision-
maker does not insulate the employer from liability for an
adverse employment decision that, in actuality, is based
upon biased information or recommendations provided by
biased supervisors.”).
The Supreme Court recently acknowledged the via-
bility of the “cat’s paw” theory in Oregon. Ossanna, 365 Or
at 198. The court began its reasoning with an analysis of
5
The parties have consistently disagreed and presented competing theories
to the jury as to whether plaintiff’s complaints to other nurses amount to pro-
tected activity or whether such complaints needed to be made through more offi-
cial channels. We address that issue further below. 322 Or App at 264-65.
Cite as 322 Or App 250 (2022) 257
federal caselaw on the subject, characterizing it as “instruc-
tive” because the doctrine originated from federal employ-
ment law. Id. at 206. In describing the doctrine’s origins in
the Seventh Circuit, the court noted that, although every
federal circuit court has subsequently adopted it, they have
articulated it in “almost as many ways as cats have lives.”
Id. at 207. Observing that the United States Supreme Court
had ultimately endorsed the doctrine, the court “join[ed] the
above-mentioned courts” and adopted the instruction. Id. at
209 (citing Staub v. Proctor Hospital, 562 US 411, 131 S Ct
1186, 179 L Ed 2d 144 (2011)). As in Ossanna, our analysis
considers federal jurisprudence to the extent that it is
helpful.
To prevail on a claim of unlawful discrimination or
retaliation, a plaintiff must prove that a protected trait or
their involvement in a protected activity was a “substantial
factor” in the adverse decision. Ossanna, 290 Or App at 28.
“Cat’s paw” provides “a pathway for satisfying the causation
requirement” when the decision-maker was not personally
biased against the plaintiff but was influenced by another
person who was so motivated. Ossanna, 365 Or at 210. The
plaintiff must still establish that “the requisite causal con-
nection exists between the supervisor’s bias and the adverse
employment action.” Id. at 211.
One scholar argues that the “cat’s paw” label can
itself make mischief by improperly narrowing the inquiry
to the specific intention of the decision-makers, implying
that other evidence of discrimination is irrelevant. Sandra
Sperino, Caught by the Cat’s Paw, 2019 BYU L Rev 1219,
1228 (2019). For instance, in Cherry v. Siemens Healthcare
Diagnostics, Inc., the plaintiff alleged that his supervisor
gave him negative performance reviews out of racial ani-
mus, which subsequently led to him being terminated as
part of a reduction in force. 829 F3d 974, 976 (8th Cir 2016).
Despite the fact that the supervisor’s racial animus played
a role in the plaintiff’s termination, the court affirmed sum-
mary judgment for the employer because the biased super-
visor did not know that a reduction in force was pending, so
could not have used the decision-maker as a “ ‘dupe.’ ” Id. at
977 (quoting Qamhiyah v. Iowa State Univ. of Sci. & Tech.,
566 F3d 733, 742 (8th Cir 2009)). The concept of a “dupe”
258 Crosbie v. Asante
comes from the fable, not a statutory or common law limita-
tion on liability. See E.E.O.C. v. BCI Coca-Cola Bottling Co.
of Los Angeles, 450 F3d 476, 484 (10th Cir 2006) (discussing
the decision-maker as a “dupe” in the context of the fable).
Recognizing its confusing nature, Judge Posner has himself
referred to the metaphor as a “judicial attractive nuisance.”
Cook v. IPC International Corp., 673 F3d 625, 628 (7th Cir
2012).
Regardless of what one calls it, the ultimate inquiry,
as framed above, in an employment retaliation case is
whether an employee’s protected trait or activity was a sub-
stantial factor in the adverse employment decision. The
important issue is not dupes, cats, or monkeys, but causation.
Because most employers are organizations, which can only
act through their agents, the thought processes of the agents
who made the decision are often at issue. Showing that the
decision-maker was influenced by a biased subordinate is
one way that a plaintiff may establish a causal relation-
ship between a protected trait or activity and an adverse
employment action. See Boyd v. Legacy Health, 318 Or App
87, 104, 507 P3d 715 (2022) (concluding that a reasonable
jury could find causation where there was evidence that a
biased former supervisor influenced the new supervisor’s
decision). Thus, the “cat’s paw” instruction provides “a path-
way for satisfying the causation requirement” in the limited
circumstances where a biased employee influenced an unbi-
ased decision-maker to make an adverse employment deci-
sion. Ossanna, 365 Or at 210. The plaintiff must still estab-
lish that “the requisite causal connection exists between
the supervisor’s bias and the adverse employment action.”
Id. at 211. To the extent that the term “imputing” bias is
helpful when determining that a biased employee influ-
enced an unbiased decision-maker’s decision, the “cat’s paw”
instruction has been adopted in Oregon for that purpose.
In this case, the protected activity was plaintiff’s
statutorily protected complaints about safety violations, and
the adverse employment decision was plaintiff’s termina-
tion. Thus, the question for the jury to answer was whether
plaintiff’s reports of safety violations were a substantial fac-
tor in her termination. The questions before us are whether
the jury instruction correctly stated that law and whether
Cite as 322 Or App 250 (2022) 259
the evidence in the record supports it. Basham, 301 Or App
at 499.
2. Whether “cat’s paw” extends to coworker bias
Asante argues that the jury instruction incor-
rectly stated the law because agency principles prevent the
imputation of “coworker” bias to the employer because the
employer has not imbued coworkers with any management
authority. Asante observes that the federal courts, begin-
ning with the Seventh Circuit in Shager and including the
United States Supreme Court in Staub, frequently consider
agency principles in considering how “cat’s paw” should
operate. Shager, 913 F2d at 405; Staub, 562 US at 418. As
the Oregon Supreme Court recognized in Ossanna, part of
Shager’s reasoning relied on the fact that supervisors gen-
erally have authority to manage other employees, even if
they do not have the authority to singlehandedly demote or
fire them. 365 Or at 206-07 (citing 913 F2d at 405). Thus,
an employer can be held liable for a supervisor’s biased
employment recommendation because that action is the
kind of thing the employer authorized the supervisor to do.
Id. (citing Restatement (Second) of Agency § 228 (1958)). On
the other hand, low-level employees usually do not have the
authority to interfere with their coworkers’ employment sta-
tus. Therefore, according to Asante, it does not make sense
to apply “cat’s paw” when the biased actor is the plaintiff’s
coworker, not their supervisor, because a coworker is not the
employer’s agent in employment matters.
We disagree with Asante that the critical fact is
whether the biased employee is a “coworker” or a “supervi-
sor.” Rather, the propriety of a cat’s paw instruction hinges
on whether a biased employee held influence over the adverse
employment decision—either because the employee was
authorized by job duty to do so or because the employer neg-
ligently allowed such usurpation. That formulation reflects
both the causation and agency origins of the “cat’s paw”
doctrine. From an agency standpoint, when an employer
grants a subordinate authority to take action, such as par-
ticipate in an employment decision, the employer is vicari-
ously liable for the exercise of that subordinate’s authority.
Restatement §§ 215, 219(1). On the other hand, if the biased
260 Crosbie v. Asante
employee is not authorized to take an action, such as influ-
ence an employment decision, but is nevertheless enabled
to do so by the employer’s negligence or recklessness, the
employer is also traditionally liable. Id. § 219(2)(b). From a
causation standpoint, either formulation requires that the
biased employee influence the actual employment decision,
meaning that the employee’s bias could amount to a “sub-
stantial factor” in that adverse employment decision.
Although Ossanna did not directly address the ques-
tion of whether “cat’s paw” can be used to impute coworker
bias, its analysis forecasts that result. The rationale for
adopting “cat’s paw” as a path to liability did not turn on
formal job titles; rather, the court acknowledged that an
“employment setting often consists of multiple layers of net-
works and relationships; organizational models often do not
reflect a simple vertical chain of command; and bias can
enter the decision-making process through formal or less
formal channels.” Ossanna, 365 Or at 210. Recognizing that
“cat’s paw” “does not prescribe a particular level of control”
that biased employees must have over the decision-making
process, the court “agree[d] with the federal courts of appeal”
in concluding that the employees must have “influence on or
involvement in the decision or decision-making process” for
their bias to be imputed. Ossanna, 365 Or at 209-10.
The “federal court of appeals” case Ossanna cited for
that proposition, Poland v. Chertoff, is instructive.6 Ossanna,
365 Or at 209-10 (citing Poland, 494 F3d 1174, 1182-83 (9th
Cir 2007)). Poland held that “cat’s paw” is appropriate if a
biased subordinate “sets in motion a proceeding by an inde-
pendent decisionmaker that leads to an adverse employment
action [and] the allegedly independent adverse employment
decision was not actually independent because the biased
subordinate influenced or was involved in the decision or
decisionmaking process.” 494 F3d at 1182 (collecting cases).
In Poland, the plaintiff had lodged an Equal Employ-
ment Opportunity (EEO) complaint against his supervisor,
alleging that he was discriminated against due to his age.
6
Our court’s pre-Ossanna “cat’s paw” case law also relied on Poland for the
same proposition. La Manna v. City of Cornelius, 276 Or App 149, 165-66, 366 P3d
773 (2016); LaCasse v. Owen, 278 Or App 24, 37, 373 P3d 1178 (2016).
Cite as 322 Or App 250 (2022) 261
Id. at 1178. In alleged retaliation for that complaint, the
supervisor reported that the plaintiff was confrontational,
argumentative, and disrespectful, and requested that the
employer undertake an administrative inquiry into his per-
formance, an inquiry that ultimately led to the plaintiff’s
transfer. Id.
The Ninth Circuit reasoned that the “initiation of
the administrative inquiry, on its own, would not be suffi-
cient” to impute bias if the inquiry had been shielded from
the biased employee’s involvement. Poland, 494 F3d at 1183.
The inquiry in Poland was not so shielded—rather, the
supervisor prepared a lengthy memo detailing numerous
instances of malfeasance for the inquiry panel to consider,
supplied the entire universe of witnesses that the panel
interviewed, and provided negative notes on the plaintiff’s
performance. Id. The supervisor’s role in defining the scope
of the inquiry and in directing the inquiry panel to unfa-
vorable evidence granted him a “pervasive influence” on the
inquiry such that his bias may have tainted the results. Id.
In that event, “the allegedly independent adverse employ-
ment decision was not actually independent because the
biased subordinate influenced or was involved in the deci-
sion or the investigation leading thereto.” Id. at 1184; see
also France v. Johnson, 795 F3d 1170, 1176 (9th Cir 2015)
(applying Poland to conclude that the “cat’s paw” theory
applies when the biased employee has “influence and sub-
stantial involvement in the hiring decisions”).
Based on this rationale, Ossanna relied on Poland
and the cases it collected to support the ultimate holding
that “cat’s paw” may be used to impute a subordinate’s bias
to the ultimate decision-maker only “if the plaintiff can
point to evidence that the non-decision-maker influenced or
was involved in the adverse employment decision.” Ossanna,
365 Or at 209. That collection of cases, in turn, underscores
the fact that imputation stems from the biased employee’s
actual involvement in the employment decision or inves-
tigation. See Poland, 494 F3d at 1182-83 (citing Laxton v.
Gap Inc., 333 F3d 572, 584 (5th Cir 2003) (holding that “the
discriminatory animus of a manager can be imputed to the
ultimate decisionmaker if the [manager] * * * ‘had influ-
ence or leverage over’ ” the ultimate decision-maker (citation
262 Crosbie v. Asante
omitted)); Abramson v. William Paterson Coll. of N.J., 260
F3d 265, 286 (3d Cir 2001) (holding that an employer is lia-
ble for the discriminatory actions of employees exhibiting
discriminatory animus if they “influenced or participated
in the [adverse employment] decision”); Santiago-Ramos v.
Centennial P.R. Wireless Corp., 217 F3d 46, 55 (1st Cir 2000)
(“One method [of proving pretext] is to show that discrim-
inatory comments were made by * * * those in a position
to influence the decisionmaker.”); Willis v. Marion County
Auditor’s Office, 118 F3d 542, 547 (7th Cir 1997) (holding
that an employer is liable for a subordinate’s discrimina-
tory acts when the subordinate is “able to manipulate the
decisionmaking process and to influence the decision”)). The
take home message from Ossanna and the authorities on
which it relies is that an employee’s job title matters much
less than whether they had actual influence on the employ-
ment decision.7
In sum, the “cat’s paw” instruction is appropriate
in cases where the biased employee is a coworker if there is
evidence that that biased coworker actually influenced or
was involved in making the adverse employment decision.
Thus, Asante’s arguments that the instruction should have
been limited to supervisors were correctly rejected.
However, in this case, the instruction’s requirement
that the jury find that the biased employee “influenced,
affected or was involved in” the employment decision was
7
The federal courts of appeals have largely followed this path and required
some involvement of the biased employee in the adverse employment deci-
sion before their bias can be imputed to the organization. See, e.g., Theidon v.
Harvard Univ., 948 F3d 477, 508 (1st Cir 2020) (“cat’s paw” inapplicable when
biased subordinate did not receive any “special consideration” at any point in the
decision-making process but rather was one of a “chorus” of voices); Marshall v.
The Rawlings Co. LLC, 854 F3d 368, 378 (6th Cir 2017) (“The primary rationale
for the cat’s paw theory of liability is that, because a company’s organizational
chart does not always accurately reflect its decisionmaking process, an employee
of lower rank may have significant influence over the decisionmaker.” (Internal
quotation marks and citation omitted.)); Gunderson v. BNSF Ry. Co., 850 F3d
962, 970 (8th Cir 2017) (rejecting “cat’s paw” theory where the biased subordi-
nate’s involvement was limited to submitting the initial workplace complaint to
his supervisor and performing “routine tasks” such as arranging the witness
interviews); Haire v. Bd. of Sup’rs of Louisiana State Univ., 719 F3d 356, 366
(5th Cir 2013) (“cat’s paw” theory appropriate where “a party demonstrating dis-
criminatory animus had influence over the official decisionmaker” (emphasis in
original; internal punctuation and citation omitted)).
Cite as 322 Or App 250 (2022) 263
too broad. There is no doubt that the potentially biased
nurses’ complaints “affected” the ultimate employment deci-
sion; indeed, their complaints set the process in motion. As
discussed above and highlighted in Poland, however, set-
ting a complaint in motion (i.e., “affecting” a decision) is not
enough—the biased employee must have been involved in
or have influenced the ultimate decision-making process.
The alternative would mean that the bias of any employee
who provides relevant information to management could be
imputed to the employer.
Moreover, that result would contravene the Supreme
Court’s observation in Staub that a biased supervisor who
provides false information to management is not analo-
gous to a trial witness who testifies falsely before a judge
because a “mere witness is not an actor in the events that
are the subject of the trial.” 562 US at 421-22. Rather, it is
an employee’s participation in the event—the employment
decision—that allows an employee’s bias to be imputed to
management. Id. In this case, even in combination with the
requirement that the “[e]ffect * * * was a substantial factor
in Defendant’s decision-makers’ adverse employment deci-
sion,” the instruction as a whole would allow a jury to find
a defendant liable when a subordinate’s actions merely set
the process in motion but where improper motive played no
other role and had no influence or involvement in the ulti-
mate employment decision. Accordingly, the instruction’s
use of the broad phase “influenced, affected, or was involved
in” the employment decision without further clarification
was improper.
The error was compounded by the fact that the
evidence presented at trial uniformly described a decision-
making process that was insulated from the nurses’ involve-
ment. Indeed, the nurses’ immediate supervisor testified
that discussing the investigation and employment decision
process with the other nurses “would have been completely
wrong.” Several nurses similarly testified that they were not
consulted beyond their initial complaint, a fact that, accord-
ing to the supervisor’s testimony, was frustrating to them
as it seemed that their complaints had inspired no action.
Given the dearth of evidence of the biased subordinates’
involvement in the decision-making process, the “cat’s paw”
264 Crosbie v. Asante
instruction was improper.8 Because that instruction allowed
the jury to conclude that, if the nurse’s distaste for plain-
tiff’s verbal safety corrections “affected” the employment
decision, the decision was unlawful, it was not harmless.
3. The instruction’s reference to protected safety com-
plaints was supported by evidence in the record.
Asante also argues that the instruction was not
supported by any evidence of statutorily protected safety
complaints, and we briefly address the issue because it is
likely to arise again on remand. According to Asante, only
Crosbie’s reports to management—not corrections made
directly to the other nurses—constitute protected activity.
Because there was no evidence that the other nurses knew
about Crosbie’s safety reports to management, Asante con-
tends that the record lacked evidence that the other nurses
retaliated based on that protected activity. However, the
statute is not limited in the way Asante asserts.
ORS 654.062 not only protects employees who have
complained about safety issues to the employer, it also
protects those who have “[o]pposed any practice forbidden
by” the OSEA. ORS 654.062(5)(a). That provision covers
Crosbie’s conduct here, in that her acts of directly correcting
other nurses’ unsafe practices could be considered “oppos-
ing” them. The implementing regulations further bolster
that conclusion:
“ORS 654.062(5) does not state to whom or in what manner
an individual must oppose a practice in order to be pro-
tected from discrimination. Protected actions include the
individual communicating opposition to practices forbidden
by OSEA or which the individual in good faith believes are
prohibited by OSEA to anyone, including but not limited
to: (a) Coworkers; (b) Employers; and (c) Newspapers and
other media.”
8
Although Asante did not object to the language “influenced, affected, or
was involved in the employment decision,” it did object to giving the instruction
at all, arguing that it was “not supported based on the case law or the facts in
this case.” Specifically, Asante argued that peers, unlike supervisors, were not
empowered to be involved in the decision, which would lead to “a big expansion
in vicarious liability.” And although Asante does not specifically argue on appeal
that the use of “affected” was problematic, the assignments of error reflect its
argument against the broad nature of the instruction.
Cite as 322 Or App 250 (2022) 265
OAR 839-004-0016(2) (emphasis added). Contrary to Asante’s
assertion, the OSEA appears to protect Crosbie’s verbal cor-
rections to coworkers about safety. Because there was evi-
dence from which the jury could reasonably infer that the
other nurses held retaliatory motives based on that protected
activity, there was evidence to support the instruction.
Reversed and remanded on appeal; cross-appeal
dismissed as moot.