Staub v. Proctor Hospital , 131 S. Ct. 1186 ( 2011 )

(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
STAUB v. PROCTOR HOSPITAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 09–400. Argued November 2, 2010—Decided March 1, 2011
While employed as an angiography technician by respondent Proctor
Hospital, petitioner Staub was a member of the United States Army
Reserve. Both his immediate supervisor (Mulally) and Mulally’s su
pervisor (Korenchuk) were hostile to his military obligations. Mu
lally gave Staub disciplinary warning which included a directive re
quiring Staub to report to her or Korenchuk when his cases were
completed. After receiving a report from Korenchuk that Staub had
violated the Corrective Action, Proctor’s vice president of human re
sources (Buck) reviewed Staub’s personnel file and decided to fire
him. Staub filed a grievance, claiming that Mulally had fabricated
the allegation underlying the warning out of hostility toward his
military obligations, but Buck adhered to her decision. Staub sued
Proctor under the Uniformed Services Employment and Reemploy
ment Rights Act of 1994 (USERRA), which forbids an employer to
deny “employment, reemployment, retention in employment, promo
tion, or any benefit of employment” based on a person’s “membership”
in or “obligation to perform service in a uniformed service,” 38
U. S. C. §4311(a), and provides that liability is established “if the
person’s membership . . . is a motivating factor in the employer’s ac
tion,” §4311(c). He contended not that Buck was motivated by hostil
ity to his military obligations, but that Mulally and Korenchuk were,
and that their actions influenced Buck’s decision. A jury found Proc
tor liable and awarded Staub damages, but the Seventh Circuit re
versed, holding that Proctor was entitled to judgment as a matter of
law because the decisionmaker had relied on more than Mulally’s and
Korenchuk’s advice in making her decision.
Held:
1. If a supervisor performs an act motivated by antimilitary ani
2 STAUB v. PROCTOR HOSPITAL
Syllabus
mus that is intended by the supervisor to cause an adverse employ
ment action, and if that act is a proximate cause of the ultimate em
ployment action, then the employer is liable under USERRA. In con
struing the phrase “motivating factor in the employer’s action,” this
Court starts from the premise that when Congress creates a federal
tort it adopts the background of general tort law. See, e.g., Burling
ton N. & S. F. R. Co. v. United States, 556 U. S. ___, ___. Intentional
torts such as the one here “generally require that the actor intend
‘the consequences’ of an act,’ not simply ‘the act itself.’ ” Kawaauhau
v. Geiger, 523 U. S. 57, 61–62. However, Proctor errs in contending
that an employer is not liable unless the de facto decisionmaker is
motivated by discriminatory animus. So long as the earlier agent in
tended, for discriminatory reasons, that the adverse action occur, he
has the scienter required for USERRA liability. Moreover, it is axio
matic under tort law that the decisionmaker’s exercise of judgment
does not prevent the earlier agent’s action from being the proximate
cause of the harm. See Hemi Group, LLC v. City of New York, 559
U. S. 1, ___. Nor can the ultimate decisionmaker’s judgment be
deemed a superseding cause of the harm. See Exxon Co., U. S. A. v.
Sofec, Inc., 517 U. S. 830, 837. Proctor’s approach would have an im
probable consequence: If an employer isolates a personnel official
from its supervisors, vests the decision to take adverse employment
actions in that official, and asks that official to review the employee’s
personnel file before taking the adverse action, then the employer
will be effectively shielded from discriminatory acts and recommen
dations of supervisors that were designed and intended to produce
the adverse action. Proctor also errs in arguing that a decision
maker’s independent investigation, and rejection, of an employee’s
discriminatory animus allegations should negate the effect of the
prior discrimination. Pp. 4–10.
2. Applying this analysis here, the Seventh Circuit erred in holding
that Proctor was entitled to judgment as a matter of law. Both Mu
lally and Korenchuk acted within the scope of their employment
when they took the actions that allegedly caused Buck to fire Staub.
There was also evidence that their actions were motivated by hostil
ity toward Staub’s military obligations, and that those actions were
causal factors underlying Buck’s decision. Finally, there was evi
dence that both Mulally and Korenchuk had the specific intent to
cause Staub’s termination. The Seventh Circuit is to consider in the
first instance whether the variance between the jury instruction
given at trial and the rule adopted here was harmless error or should
mandate a new trial. Pp. 11–12.
560 F. 3d 647, reversed and remanded.
Cite as: 562 U. S. ____ (2011) 3
Syllabus
SCALIA, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.
ALITO, J., filed an opinion concurring in the judgment, in which THO-
MAS, J., joined. KAGAN, J., took no part in the consideration or decision
of the case.
Cite as: 562 U. S. ____ (2011) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–400
_________________
VINCENT E. STAUB, PETITIONER v. PROCTOR
HOSPITAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[March 1, 2011]
JUSTICE SCALIA delivered the opinion of the Court.
We consider the circumstances under which an em
ployer may be held liable for employment discrimination
based on the discriminatory animus of an employee who
influenced, but did not make, the ultimate employment
decision.
I
Petitioner Vincent Staub worked as an angiography
technician for respondent Proctor Hospital until 2004,
when he was fired. Staub and Proctor hotly dispute the
facts surrounding the firing, but because a jury found for
Staub in his claim of employment discrimination against
Proctor, we describe the facts viewed in the light most
favorable to him.
While employed by Proctor, Staub was a member of the
United States Army Reserve, which required him to at
tend drill one weekend per month and to train full time for
two to three weeks a year. Both Janice Mulally, Staub’s
immediate supervisor, and Michael Korenchuk, Mulally’s
supervisor, were hostile to Staub’s military obligations.
Mulally scheduled Staub for additional shifts without
2 STAUB v. PROCTOR HOSPITAL
Opinion of the Court
notice so that he would “ ‘pa[y] back the department for
everyone else having to bend over backwards to cover [his]
schedule for the Reserves.’ ” 560 F. 3d 647, 652 (CA7
2009). She also informed Staub’s co-worker, Leslie Swe
borg, that Staub’s “ ‘military duty had been a strain on
th[e] department,’ ” and asked Sweborg to help her “ ‘get
rid of him.’ ” Ibid. Korenchuk referred to Staub’s military
obligations as “ ‘a b[u]nch of smoking and joking and [a]
waste of taxpayers[’] money.’ ” Ibid. He was also aware
that Mulally was “ ‘out to get’ ” Staub. Ibid.In January 2004, Mulally issued Staub a “Corrective
Action” disciplinary warning for purportedly violating a
company rule requiring him to stay in his work area
whenever he was not working with a patient. The Correc
tive Action included a directive requiring Staub to report
to Mulally or Korenchuk “ ‘when [he] ha[d] no patients and
[the angio] cases [we]re complete[d].’ ” Id., at 653. Accord
ing to Staub, Mulally’s justification for the Corrective
Action was false for two reasons: First, the company rule
invoked by Mulally did not exist; and second, even if it did,
Staub did not violate it.
On April 2, 2004, Angie Day, Staub’s co-worker, com
plained to Linda Buck, Proctor’s vice president of human
resources, and Garrett McGowan, Proctor’s chief operating
officer, about Staub’s frequent unavailability and abrupt
ness. McGowan directed Korenchuk and Buck to create a
plan that would solve Staub’s “ ‘availability’ problems.”
Id., at 654. But three weeks later, before they had time to
do so, Korenchuk informed Buck that Staub had left his
desk without informing a supervisor, in violation of the
January Corrective Action. Staub now contends this
accusation was false: he had left Korenchuk a voice-mail
notification that he was leaving his desk. Buck relied on
Korenchuk’s accusation, however, and after reviewing
Staub’s personnel file, she decided to fire him. The termi
nation notice stated that Staub had ignored the directive
Cite as: 562 U. S. ____ (2011) 3
Opinion of the Court
issued in the January 2004 Corrective Action.
Staub challenged his firing through Proctor’s grievance
process, claiming that Mulally had fabricated the allega
tion underlying the Corrective Action out of hostility
toward his military obligations. Buck did not follow
up with Mulally about this claim. After discussing the
matter with another personnel officer, Buck adhered to
her decision.
Staub sued Proctor under the Uniformed Services Em
ployment and Reemployment Rights Act of 1994, 38
U. S. C. §4301 et seq., claiming that his discharge was
motivated by hostility to his obligations as a military
reservist. His contention was not that Buck had any such
hostility but that Mulally and Korenchuk did, and that
their actions influenced Buck’s ultimate employment
decision. A jury found that Staub’s “military status was a
motivating factor in [Proctor’s] decision to discharge him,”
App. 68a, and awarded $57,640 in damages.
The Seventh Circuit reversed, holding that Proctor was
entitled to judgment as a matter of law. 560 F. 3d 647.
The court observed that Staub had brought a “ ‘cat’s paw’
case,” meaning that he sought to hold his employer liable
for the animus of a supervisor who was not charged with
making the ultimate employment decision. Id., at 655–
656.1 It explained that under Seventh Circuit precedent, a
“cat’s paw” case could not succeed unless the nondecision
maker exercised such “ ‘singular influence’ ” over the deci
——————
1 The term “cat’s paw” derives from a fable conceived by Aesop, put
into verse by La Fontaine in 1679, and injected into United States
employment discrimination law by Posner in 1990. See Shager v.
Upjohn Co., 913 F. 2d 398, 405 (CA7). In the fable, a monkey induces a
cat by flattery to extract roasting chestnuts from the fire. After the cat
has done so, burning its paws in the process, the monkey makes off
with the chestnuts and leaves the cat with nothing. A coda to the fable
(relevant only marginally, if at all, to employment law) observes that
the cat is similar to princes who, flattered by the king, perform services
on the king’s behalf and receive no reward.
4 STAUB v. PROCTOR HOSPITAL
Opinion of the Court
sionmaker that the decision to terminate was the product
of “blind reliance.” Id., at 659. It then noted that “Buck
looked beyond what Mulally and Korenchuk said,” relying
in part on her conversation with Day and her review of
Staub’s personnel file. Ibid. The court “admit[ted] that
Buck’s investigation could have been more robust,” since it
“failed to pursue Staub’s theory that Mulally fabricated
the write-up.” Ibid. But the court said that the “ ‘singular
influence’ ” rule “does not require the decisionmaker to be
a paragon of independence”: “It is enough that the deci
sionmaker is not wholly dependent on a single source of
information and conducts her own investigation into the
facts relevant to the decision.” Ibid. (internal quotation
marks omitted). Because the undisputed evidence estab
lished that Buck was not wholly dependent on the advice
of Korenchuk and Mulally, the court held that Proctor was
entitled to judgment. Ibid.We granted certiorari. 559 U. S. ___ (2010).
II
The Uniformed Services Employment and Reemploy
ment Rights Act (USERRA) provides in relevant part as
follows:
“A person who is a member of . . . or has an obliga
tion to perform service in a uniformed service shall
not be denied initial employment, reemployment, re
tention in employment, promotion, or any benefit of
employment by an employer on the basis of that
membership, . . . or obligation.” 38 U. S. C. §4311(a).
It elaborates further:
“An employer shall be considered to have engaged
in actions prohibited . . . under subsection (a), if the
person’s membership . . . is a motivating factor in the
employer’s action, unless the employer can prove that
the action would have been taken in the absence of
Cite as: 562 U. S. ____ (2011) 5
Opinion of the Court
such membership.” §4311(c).
The statute is very similar to Title VII, which prohibits
employment discrimination “because of . . . race, color,
religion, sex, or national origin” and states that such
discrimination is established when one of those factors
“was a motivating factor for any employment practice,
even though other factors also motivated the practice.” 42
U. S. C. §§2000e–2(a), (m).
The central difficulty in this case is construing the
phrase “motivating factor in the employer’s action.” When
the company official who makes the decision to take an
adverse employment action is personally acting out of
hostility to the employee’s membership in or obligation to
a uniformed service, a motivating factor obviously exists.
The problem we confront arises when that official has no
discriminatory animus but is influenced by previous com
pany action that is the product of a like animus in some
one else.
In approaching this question, we start from the premise
that when Congress creates a federal tort it adopts the
background of general tort law. See Burlington N. & S.
F. R. Co. v. United States, 556 U. S. ___, ___ (2009) (slip
op., at 13–14); Safeco Ins. Co. of America v. Burr, 551 U. S.
47, 68–69 (2007); Burlington Industries, Inc. v. Ellerth,
524 U. S. 742, 764 (1998). Intentional torts such as this,
“as distinguished from negligent or reckless torts, . . .
generally require that the actor intend ‘the consequences’
of an act,’ not simply ‘the act itself.’ ” Kawaauhau v. Gei
ger, 523 U. S. 57, 61–62 (1998).
Staub contends that the fact that an unfavorable entry
on the plaintiff’s personnel record was caused to be put
there, with discriminatory animus, by Mulally and Koren
chuk, suffices to establish the tort, even if Mulally and
Korenchuk did not intend to cause his dismissal. But
discrimination was no part of Buck’s reason for the dis
6 STAUB v. PROCTOR HOSPITAL
Opinion of the Court
missal; and while Korenchuk and Mulally acted with
discriminatory animus, the act they committed—the mere
making of the reports—was not a denial of “initial em
ployment, reemployment, retention in employment, pro
motion, or any benefit of employment,” as liability under
USERRA requires. If dismissal was not the object of
Mulally’s and Korenchuk’s reports, it may have been
their result, or even their foreseeable consequence, but
that is not enough to render Mulally or Korenchuk
responsible.
Here, however, Staub is seeking to hold liable not Mu
lally and Korenchuk, but their employer. Perhaps, there
fore, the discriminatory motive of one of the employer’s
agents (Mulally or Korenchuk) can be aggregated with the
act of another agent (Buck) to impose liability on Proctor.
Again we consult general principles of law, agency law,
which form the background against which federal tort
laws are enacted. See Meyer v. Holley, 537 U. S. 280, 285
(2003); Burlington, supra, at 754–755. Here, however, the
answer is not so clear. The Restatement of Agency sug
gests that the malicious mental state of one agent cannot
generally be combined with the harmful action of another
agent to hold the principal liable for a tort that requires
both. See Restatement (Second) Agency §275, Illustration
4 (1958). Some of the cases involving federal torts apply
that rule. See United States v. Science Applications Int’l
Corp., 626 F. 3d 1257, 1273–1276 (CADC 2010); Chaney v.
Dreyfus Service Corp., 595 F. 3d 219, 241 (CA5 2010);
United States v. Philip Morris USA Inc., 566 F. 3d 1095,
1122 (CADC 2009). But another case involving a federal
tort, and one involving a federal crime, hold to the con
trary. See United States ex rel. Harrison v. Westinghouse
Savannah River Co., 352 F. 3d 908, 918–919 (CA4 2003);
United States v. Bank of New England, N. A., 821 F. 2d
844, 856 (CA1 1987). Ultimately, we think it unnecessary
in this case to decide what the background rule of agency
Cite as: 562 U. S. ____ (2011) 7
Opinion of the Court
law may be, since the former line of authority is suggested
by the governing text, which requires that discrimination
be “a motivating factor” in the adverse action. When a
decision to fire is made with no unlawful animus on the
part of the firing agent, but partly on the basis of a report
prompted (unbeknownst to that agent) by discrimination,
discrimination might perhaps be called a “factor” or a
“causal factor” in the decision; but it seems to us a consid
erable stretch to call it “a motivating factor.”
Proctor, on the other hand, contends that the employer
is not liable unless the de facto decisionmaker (the techni
cal decisionmaker or the agent for whom he is the “cat’s
paw”) is motivated by discriminatory animus. This avoids
the aggregation of animus and adverse action, but it
seems to us not the only application of general tort law
that can do so. Animus and responsibility for the adverse
action can both be attributed to the earlier agent (here,
Staub’s supervisors) if the adverse action is the intended
consequence of that agent’s discriminatory conduct. So
long as the agent intends, for discriminatory reasons, that
the adverse action occur, he has the scienter required to be
liable under USERRA. And it is axiomatic under tort law
that the exercise of judgment by the decisionmaker does
not prevent the earlier agent’s action (and hence the ear
lier agent’s discriminatory animus) from being the proxi
mate cause of the harm. Proximate cause requires only
“some direct relation between the injury asserted and the
injurious conduct alleged,” and excludes only those “link[s]
that are too remote, purely contingent, or indirect.” Hemi
Group, LLC v. City of New York, 559 U. S. 1, ___ (2010)
(slip op., at 9) (internal quotation marks omitted).2 We do
——————
2 Under the traditional doctrine of proximate cause, a tortfeasor is
sometimes, but not always, liable when he intends to cause an adverse
action and a different adverse action results. See Restatement (Second)
Torts §§435, 435B and Comment a (1963 and 1964). That issue is not
presented in this case since the record contains no evidence that Mu
8 STAUB v. PROCTOR HOSPITAL
Opinion of the Court
not think that the ultimate decisionmaker’s exercise of
judgment automatically renders the link to the supervi
sor’s bias “remote” or “purely contingent.” The decision
maker’s exercise of judgment is also a proximate cause of
the employment decision, but it is common for injuries to
have multiple proximate causes. See Sosa v. Alvarez-
Machain, 542 U. S. 692, 704 (2004). Nor can the ultimate
decisionmaker’s judgment be deemed a superseding cause
of the harm. A cause can be thought “superseding” only if
it is a “cause of independent origin that was not foresee
able.” Exxon Co., U. S. A. v. Sofec, Inc., 517 U. S. 830, 837
(1996) (internal quotation marks omitted).
Moreover, the approach urged upon us by Proctor gives
an unlikely meaning to a provision designed to prevent
employer discrimination. An employer’s authority to
reward, punish, or dismiss is often allocated among multi
ple agents. The one who makes the ultimate decision does
so on the basis of performance assessments by other su
pervisors. Proctor’s view would have the improbable
consequence that if an employer isolates a personnel
official from an employee’s supervisors, vests the decision
to take adverse employment actions in that official, and
asks that official to review the employee’s personnel file
before taking the adverse action, then the employer will be
effectively shielded from discriminatory acts and recom
mendations of supervisors that were designed and in
tended to produce the adverse action. That seems to us an
implausible meaning of the text, and one that is not com
pelled by its words.
Proctor suggests that even if the decisionmaker’s mere
exercise of independent judgment does not suffice to ne
gate the effect of the prior discrimination, at least the
decisionmaker’s independent investigation (and rejection)
——————
lally or Korenchuk intended any particular adverse action other than
Staub’s termination.
Cite as: 562 U. S. ____ (2011) 9
Opinion of the Court
of the employee’s allegations of discriminatory animus
ought to do so. We decline to adopt such a hard-and-fast
rule. As we have already acknowledged, the requirement
that the biased supervisor’s action be a causal factor of the
ultimate employment action incorporates the traditional
tort-law concept of proximate cause. See, e.g., Anza v.
Ideal Steel Supply Corp., 547 U. S. 451, 457–458 (2006);
Sosa, supra, at 703. Thus, if the employer’s investigation
results in an adverse action for reasons unrelated to the
supervisor’s original biased action (by the terms of
USERRA it is the employer’s burden to establish that),
then the employer will not be liable. But the supervisor’s
biased report may remain a causal factor if the independ
ent investigation takes it into account without determin
ing that the adverse action was, apart from the supervi
sor’s recommendation, entirely justified. We are aware of
no principle in tort or agency law under which an em
ployer’s mere conduct of an independent investigation has
a claim-preclusive effect. Nor do we think the independ
ent investigation somehow relieves the employer of “fault.”
The employer is at fault because one of its agents commit
ted an action based on discriminatory animus that was
intended to cause, and did in fact cause, an adverse em
ployment decision.
JUSTICE ALITO claims that our failure to adopt a rule
immunizing an employer who performs an independent
investigation reflects a “stray[ing] from the statutory
text.” Post, at 2 (opinion concurring in judgment). We do
not understand this accusation. Since a supervisor is an
agent of the employer, when he causes an adverse em
ployment action the employer causes it; and when dis
crimination is a motivating factor in his doing so, it is a
“motivating factor in the employer’s action,” precisely as
the text requires. JUSTICE ALITO suggests that the em
ployer should be held liable only when it “should be re
garded as having delegated part of the decisionmaking
10 STAUB v. PROCTOR HOSPITAL
Opinion of the Court
power” to the biased supervisor. Ibid. But if the inde
pendent investigation relies on facts provided by the bi
ased supervisor—as is necessary in any case of cat’s-paw
liability—then the employer (either directly or through
the ultimate decisionmaker) will have effectively delegated
the factfinding portion of the investigation to the biased
supervisor. Contrary to JUSTICE ALITO’s suggestion, the
biased supervisor is not analogous to a witness at a bench
trial. The mere witness is not an actor in the events that
are the subject of the trial. The biased supervisor and the
ultimate decisionmaker, however, acted as agents of the
entity that the plaintiff seeks to hold liable; each of them
possessed supervisory authority delegated by their em
ployer and exercised it in the interest of their employer.
In sum, we do not see how “fidelity to the statutory text,”
ibid., requires the adoption of an independent
investigation defense that appears nowhere in the text.
And we find both speculative and implausible JUSTICE
ALITO’s prediction that our Nation’s employers will sys
tematically disfavor members of the armed services in
their hiring decisions to avoid the possibility of cat’s-paw
liability, a policy that would violate USERRA in any
event.
We therefore hold that if a supervisor performs an act
motivated by antimilitary animus that is intended by the
supervisor to cause an adverse employment action,3 and if
that act is a proximate cause of the ultimate employment
action, then the employer is liable under USERRA. 4
——————
3 Under traditional tort law, “ ‘intent’ . . . denote[s] that the actor
desires to cause consequences of his act, or that he believes that the
consequences are substantially certain to result from it.” Id., §8A.
4 Needless to say, the employer would be liable only when the super
visor acts within the scope of his employment, or when the supervisor
acts outside the scope of his employment and liability would be imputed
to the employer under traditional agency principles. See Burlington
Industries, Inc. v. Ellerth, 524 U. S. 742, 758 (1998). We express no
Cite as: 562 U. S. ____ (2011)
11
Opinion of the Court
III
Applying our analysis to the facts of this case, it is clear
that the Seventh Circuit’s judgment must be reversed.
Both Mulally and Korenchuk were acting within the scope
of their employment when they took the actions that
allegedly caused Buck to fire Staub. A “reprimand . . . for
workplace failings” constitutes conduct within the scope of
an agent’s employment. Faragher v. Boca Raton, 524
U. S. 775, 798–799 (1998). As the Seventh Circuit recog
nized, there was evidence that Mulally’s and Korenchuk’s
actions were motivated by hostility toward Staub’s mili
tary obligations. There was also evidence that Mulally’s
and Korenchuk’s actions were causal factors underlying
Buck’s decision to fire Staub. Buck’s termination notice
expressly stated that Staub was terminated because he
had “ignored” the directive in the Corrective Action. Fi
nally, there was evidence that both Mulally and Koren
chuk had the specific intent to cause Staub to be termi
nated. Mulally stated she was trying to “ ‘get rid of ’ ”
Staub, and Korenchuk was aware that Mulally was “ ‘out
to get’ ” Staub. Moreover, Korenchuk informed Buck,
Proctor’s personnel officer responsible for terminating
employees, of Staub’s alleged noncompliance with Mu
lally’s Corrective Action, and Buck fired Staub immedi
ately thereafter; a reasonable jury could infer that Koren
chuk intended that Staub be fired. The Seventh Circuit
therefore erred in holding that Proctor was entitled to
judgment as a matter of law.
It is less clear whether the jury’s verdict should be
reinstated or whether Proctor is entitled to a new trial.
——————
view as to whether the employer would be liable if a co-worker, rather
than a supervisor, committed a discriminatory act that influenced the
ultimate employment decision. We also observe that Staub took advan
tage of Proctor’s grievance process, and we express no view as to
whether Proctor would have an affirmative defense if he did not. Cf.
Pennsylvania State Police v. Suders, 542 U. S. 129, 148–149 (2004).
12 STAUB v. PROCTOR HOSPITAL
Opinion of the Court
The jury instruction did not hew precisely to the rule we
adopt today; it required only that the jury find that “mili
tary status was a motivating factor in [Proctor’s] decision
to discharge him.” App. 68a. Whether the variance be
tween the instruction and our rule was harmless error or
should mandate a new trial is a matter the Seventh Cir
cuit may consider in the first instance.
* * *
The judgment of the Seventh Circuit is reversed, and
the case is remanded for further proceedings consistent
with this opinion.
It is so ordered.
JUSTICE KAGAN took no part in the consideration or
decision of this case.
Cite as: 562 U. S. ____ (2011) 1
ALITO, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–400
_________________
VINCENT E. STAUB, PETITIONER v. PROCTOR
HOSPITAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[March 1, 2011]
JUSTICE ALITO, with whom JUSTICE THOMAS joins,
concurring in the judgment.
I agree with the Court that the decision of the Court of
Appeals must be reversed, but I would do so based on the
statutory text, rather than principles of agency and tort
law that do not speak directly to the question presented
here.
The relevant statutory provision states:
“An employer shall be considered to have engaged in
[prohibited discrimination against a member of one of
the uniformed services] if the person’s membership
. . . is a motivating factor in the employer’s action,
unless the employer can prove that the action would
have been taken in the absence of such membership
. . . .” 38 U. S. C. §4311(c)(1) (emphasis added).
For present purposes, the key phrase is “a motivating
factor in the employer’s action.” A “motivating factor” is a
factor that “provide[s] . . . a motive.” See Webster’s Third
New International Dictionary 1475 (1971) (defining “moti
vate”). A “motive,” in turn, is “something within a person
. . . that incites him to action.” Ibid. Thus, in order for
discrimination to be “a motivating factor in [an] em
ployer’s action,” discrimination must be present “within,”
i.e., in the mind of, the person who makes the decision to
2 STAUB v. PROCTOR HOSPITAL
ALITO, J., concurring in judgment
take that action. And “the employer’s action” here is the
decision to fire petitioner. Thus, petitioner, in order to
recover, was required to show that discrimination moti
vated that action.
The Court, however, strays from the statutory text by
holding that it is enough for an employee to show that
discrimination motivated some other action and that this
latter action, in turn, caused the termination decision.
That is simply not what the statute says.
The Court fears this interpretation of the statute would
allow an employer to escape liability by assigning formal
decisionmaking authority to an officer who may merely
rubberstamp the recommendation of others who are moti
vated by antimilitary animus. See ante, at 8. But fidelity
to the statutory text does not lead to this result. Where
the officer with formal decisionmaking authority merely
rubberstamps the recommendation of others, the em
ployer, I would hold, has actually delegated the decision
making responsibility to those whose recommendation is
rubberstamped. I would reach a similar conclusion where
the officer with the formal decisionmaking authority is put
on notice that adverse information about an employee may
be based on antimilitary animus but does not undertake
an independent investigation of the matter. In that situa
tion, too, the employer should be regarded as having dele
gated part of the decisionmaking power to those who are
responsible for memorializing and transmitting the ad
verse information that is accepted without examination.
The same cannot be said, however, where the officer with
formal decisionmaking responsibility, having been alerted
to the possibility that adverse information may be tainted,
undertakes a reasonable investigation and finds insuffi
cient evidence to dispute the accuracy of that information.
Nor can the employer be said to have “effectively dele
gated” decisionmaking authority any time a decision
maker “relies on facts provided by [a] biased supervisor.”
Cite as: 562 U. S. ____ (2011) 3
ALITO, J., concurring in judgment
See ante, at 10. A decisionmaker who credits information
provided by another person—for example, a judge who
credits the testimony of a witness in a bench trial—does
not thereby delegate a portion of the decisionmaking
authority to the person who provides the information.
This interpretation of §4311(c)(1) heeds the statutory
text and would provide fair treatment for both employers
and employees who are members of the uniformed ser
vices. It would also encourage employers to establish
internal grievance procedures similar to those that have
been adopted following our decisions in Burlington Indus
tries, Inc. v. Ellerth, 524 U. S. 742 (1998), and Faragher v.
Boca Raton, 524 U. S. 775 (1998). Such procedures would
often provide relief for employees without the need for
litigation, and they would provide protection for employers
who proceed in good faith.
The Court’s contrary approach, by contrast, is almost
certain to lead to confusion and is likely to produce results
that will not serve the interests of either employers or
employees who are members of the uniformed services.
The Court’s holding will impose liability unfairly on em
ployers who make every effort to comply with the law, and
it may have the perverse effect of discouraging employers
from hiring applicants who are members of the Reserves
or the National Guard. In addition, by leaving open the
possibility that an employer may be held liable if it inno
cently takes into account adverse information provided,
not by a supervisor, but by a low-level employee, see ante,
at 10–11, n. 4, the Court increases the confusion that its
decision is likely to produce.
For these reasons, I cannot accept the Court’s interpre
tation of §4311(c)(1), but I nevertheless agree that the
decision below must be reversed. There was sufficient
evidence to support a finding that at least Korenchuk was
actually delegated part of the decisionmaking authority in
this case. Korenchuk was the head of the unit in which
Staub worked and it was Korenchuk who told Buck that
4 STAUB v. PROCTOR HOSPITAL
ALITO, J., concurring in judgment
Staub left his work area without informing his supervi
sors. There was evidence that Korenchuk’s accusation
formed the basis of Buck’s decision to fire Staub, and that
Buck simply accepted the accusation at face value. Ac
cording to one version of events, Buck fired Staub immedi
ately after Korenchuk informed her of Staub’s alleged
misconduct, and she cited only that misconduct in the
termination notice provided to Staub. See 5 Record 128–
129, 267–268, 380–386; App. 74a. All of this is enough to
show that Korenchuk was in effect delegated some of
Buck’s termination authority. There was also evidence
from which it may be inferred that displeasure with
Staub’s Reserve responsibilities was a motivating factor in
Korenchuk’s actions.*
——————
* See 5 Record 343–344 (testimony that Korenchuk made negative
remarks about Staub’s Reserve duties before firing him in 1998); id., at
124–126, 352 (testimony that Korenchuk informed Staub of the revenue
lost while he was on Active Duty in 2003, that Korenchuk was aware in
January 2004 that Staub might be called to Active Duty again, and that
“[b]udget was a big issue with [Korenchuk]”).