NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0371n.06
Filed: June 25, 2008
No. 06-6059
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NANCY H. ROBERTS, )
) ON APPEAL FROM THE
Plaintiff-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF TENNESSEE
)
ANTHONY J. PRINCIPI, Secretary of U.S. ) OPINION
Department of Veterans Affairs, U.S. DEPARTMENT )
OF VETERANS AFFAIRS, )
)
Defendants-Appellees. )
BEFORE: ROGERS, COOK, and McKEAGUE, Circuit Judges.
McKEAGUE, Circuit Judge. Nancy H. Roberts sued her employer, the United States
Department of Veterans Affairs (“VA”), alleging various federal claims, including retaliation under
Title VII of the Civil Rights Act of 1964. After holding a bench trial, the district court found that
Roberts had failed to establish a causal connection between her protected activity and any adverse
acts of the VA. The district court dismissed her retaliation claim.
On appeal, Roberts argues that the retaliatory animus of her coworkers should be imputed
to the ultimate decisionmaker, who Roberts concedes did not otherwise hold any retaliatory
animosity towards her. Because the decisionmaker engaged in an independent investigation,
however, we reject Roberts’s imputation argument and affirm the judgment of the district court.
No. 06-6059
Roberts v. Principi
I
The district court’s findings of fact are located at pages 2-12 of its written opinion following
the bench trial. Roberts v. Principi, No. 2:02-CV-166 (E.D. Tenn. June 16, 2006). We summarize
the pertinent facts on appeal:
Roberts, a Caucasian female, was fifty-three years old when she sued. The James H. Quillen
Veterans Affairs Medical Center (“VAMC”) in Johnson City, Tennessee, employed Roberts as a
Certified Registered Nurse Anesthetist (“CRNA”). From the time of her appointment in 1996
through the end of June 2001, Roberts served in the anesthesia section of the VAMC’s surgical
service. Each operating room was staffed by a single CRNA assigned by the anesthesia section and
at least two registered nurses assigned by the nursing service. CRNAs administered anesthesia under
the oversight of an anesthesiologist.
The anesthesia section included six CRNAs and one licensed practical nurse. During the
relevant period, the CRNAs were, in order of seniority: Wanda Ibrahim, Carolyn Harris, Roberts,
Rachel Weston, Ruben Fuentes, and Cathy Jo Hunt. Ibrahim had been designated lead CRNA for
many years and performed most of the administrative functions attendant to that position. Dr.
Clarence Goulding supervised the surgical service, including the anesthesia section. Dr. Goulding
reported to Dr. Louis Cancellaro, the Medical Chief of Staff. The registered nurses and licensed
practical nurses reported to Juan Morales, R.N. Dr. Cancellaro and R.N. Morales reported directly
to Dr. Carl Gerber, Director of the VAMC.
In January 2001, Fuentes directed profane, vulgar, and gender-oriented comments at Roberts
and some of the other CRNAs. Roberts complained to Dr. Goulding about Fuentes’s comments, to
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no avail. On January 29, 2001, Roberts contacted a VA Equal Employment Opportunity (“EEO”)
counselor and complained about Fuentes’s actions and Dr. Goulding’s lack of response to her
complaints. At the suggestion of the EEO counselor, Roberts took her complaints to Dr. Theron T.
Knight, Jr., the VAMC Chief of Surgery. Dr. Knight assured Roberts that he would talk with
Fuentes and Lori Hagen, Nurse Supervisor, who Roberts also alleged had made hostile and
retaliatory remarks toward her.
Shortly after Roberts spoke with Dr. Knight, Hagen followed her down a hallway and
accosted her, something Hagen denied at trial. About the same time, Roberts received a note she
alleged came from Fuentes. The note contained vulgar and derogatory comments, which Roberts
believed were directed at her. Roberts filed a formal complaint of discrimination with the VA
alleging that Hagen and Fuentes had discriminated against her and that Dr. Goulding and Dr. Knight
failed to take corrective action.
On June 11, 2001, an EEO investigator called and interviewed Hagen concerning Roberts’s
EEO charge. The next morning, Hagen told her nursing staff that Roberts had filed an EEO charge
against her and that she was resigning her position in the operating room because of Roberts. Hagen
later admitted, however, that she had already been interviewed and selected for the Patient Safety
Officer position at the VAMC and had planned to transfer to that position because she was burned
out in the operating room. Hagen did not disclose this information to her staff but rather blamed her
resignation on Roberts’s EEO complaint.
After learning of the complaint and Hagen’s transfer to another position, various
operating-room staff began to circulate three separate petitions against Roberts. R.N. Stephanie
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Story drafted one of the petitions; twenty-five other members of the operating-room staff signed the
petition. Their petition accused Roberts of “inappropriate and intimidating behavior” toward a
coworker and of generally creating discord in the operating room. It did not mention any complaints
or EEO charges filed by Roberts. Weston drafted the second petition, which she signed along with
Ibrahim, Fuentes, and Hunt. It alleged that Roberts “has filed numerous complaints which have no
basis in reality.” It further asserted that Roberts “does retaliate, confabulate, and intimidate to obtain
her goals.” Dr. Julie Dunn, a surgeon and professor at the East Tennessee University College of
Medicine, drafted the final petition, which she signed along with eleven other VAMC surgeons. The
surgeons’ petition mentioned “a complaint . . . filed against Ms. Lori Hagen” and lamented “the
continual harassment that Hagen and others have had to endure . . . to the detriment of the Surgical
Service.” It asked that the VA investigate not only Roberts’s complaint, but also investigate Roberts
“for further insight into the REAL source of the problem.” Hagen did not draft or sign a petition.
The petitions were forwarded to Dr. Gerber, who gave them to Dr. Cancellaro for his review
and action. At the time Dr. Gerber forwarded the petitions to Dr. Cancellaro, Dr. Gerber was aware
of Roberts’s pending EEO charges. He did not, however, inform Dr. Cancellaro of the EEO activity.
Dr. Cancellaro immediately realized that the VAMC had a potentially serious problem which
threatened patient care. Dr. Cancellaro was particularly concerned about the petition signed by the
VAMC surgeons. Fearing that the disruption in the operating room directly affected patient care,
Dr. Cancellaro summoned Roberts, whom he did not know, to his office on June 27, 2001, and
informed her that he had received complaints against her and that he was removing her temporarily
from the anesthesia section and detailing her to the VAMC’s emergency room as a staff nurse. Dr.
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Cancellaro felt that he could not wait for a formal investigation because of the potential impact on
patient care threatened by the discord in the operating room.
The VAMC commissioned a factfinding board to investigate the matter. The board
interviewed Roberts along with thirteen of her coworkers. The board issued its final report on July
18, 2001. It found, among other things, that Roberts had a short temper that sometimes was
exhibited in front of patients, was demeaning to nurses, and, as a result of her “attitude, behavior and
lack of respect of her coworkers,” “created an atmosphere of fear and intimidation in the surgical
work area.” FFB Rep. at 3-4. The board concluded that the allegations made in the petitions were
true and recommended that “under no conditions should [Roberts] be returned to the operating
room.” Id. at 5.
Because he considered a permanent transfer a drastic action, Dr. Cancellaro wanted a more
formalized review of the issues involving Roberts. The VAMC authorized an Administrative Board
of Inquiry (“ABI”) comprised of employees from other VA facilities to hear sworn testimony
concerning the matter. The ABI took sworn testimony or declarations from twenty-nine people
(including Roberts and witnesses she suggested) and reviewed various documents dating from 1999
to 2002. At the conclusion of its investigation, the ABI issued a formal written report on May 16,
2002. The ABI’s findings were similar to those of the earlier factfinding board: Roberts’s behavior
and relationships with most of her coworkers contributed to “a very stressful working environment”;
she was hostile and disrespectful to anyone who had an authority role; and putting Roberts back into
the surgical service would “recreate the very dysfunctional environment, possibly at an elevated
state.” ABI Rep. at 3-5. The ABI concluded, “[T]he reappointment of Ms. Roberts to the anesthesia
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service would be detrimental to the James H. Quillen VA Medical Center Surgery Program as many
surgeons would reportedly resign and patient care could be compromised through the many
distractions this would cause.” Id. at 6.
Based on the findings and recommendations of the ABI, Dr. Cancellaro permanently
reassigned Roberts to the VAMC’s GI lab in August 2002. According to Dr. Cancellaro, the ABI
findings were sufficient to warrant permanent reassignment; he denied having any retaliatory motive.
Roberts’s pay and benefits remained the same after the transfer, although she did lose the opportunity
for certain overtime pay and was working in a position that did not permit her to use her CRNA
skills to the same extent. Roberts remained in the GI lab until it was consolidated with surgical
services in July 2005. Roberts was later assigned to the VAMC’s bronchoscopy lab.
Roberts’s transfer spawned two separate lawsuits. In June 2002, Roberts sued the Secretary
and the VA in the Eastern District of Tennessee. She alleged discrimination in violation of the Age
Discrimination in Employment Act (“ADEA”), retaliation for engaging in activity protected under
Title VII, and violation of the Freedom of Information Act (“FOIA”).
In November 2002, Roberts sued five of her coworkers in state court. The Government
removed the suit to federal district court. On the Government’s certification and motion, the district
court substituted the Government as the defendant and dismissed the action for lack of subject-matter
jurisdiction pursuant to the Westfall Act. A panel of this court affirmed on appeal. Roberts v. United
States, 191 F. App’x 338 (6th Cir.), cert. denied, 127 S. Ct. 683 (2006).
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As to her suit against the Secretary and the VA, Roberts abandoned her ADEA claim while
the defendants conceded an inadvertent violation of FOIA. The district court held a two-day bench
trial on her Title VII retaliation claim.
The district court heard testimony from Roberts’s coworkers that, while her professional
performance as a CRNA was generally adequate (except as recounted by Dr. Janet Brown, see infra),
her interpersonal relationships were poor. For quite some time, Roberts had been a source of
discontent within the operating room. Hagen testified that Roberts had harassed her for about two
years prior to the filing of the EEO complaint, constantly made complaints to her supervisors, and
sought favoritism through the inappropriate giving of gifts.
Roberts displayed problems with anger management, something the factfinding board cited
in support of its recommendation. Both Weston and Ibrahim testified at trial that Roberts had
problems getting along with others and would not cooperate with the group. According to Weston,
Roberts exhibited repeated outbursts of anger and chronic temper tantrums since her assignment to
the operating room. Ibrahim experienced a host of conflicts with Roberts. Roberts made numerous
complaints against Ibrahim and complained about her room assignments and holiday duty. Roberts
was absent from the department for long periods of time which led to anger and resentment by other
CRNAs. In short, Roberts was demanding, disruptive, and irrational, according to several of her
fellow CRNAs.
Carol Dubay, a registered nurse, testified that the operating room was a high stress, fast-paced
place. According to Dubay, Roberts caused significant stress in the operating room and would
become angry, slam doors, and throw things. Dubay testified that she did not want to work with
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Roberts. According to Dubay, the atmosphere in the operating room improved considerably after
Roberts left.
Dr. Dunn testified that she drafted the surgeons’ petition without request by or input from
Hagen. While she acknowledged that she had not personally seen any detrimental patient impact
attributable to Roberts, she testified that she would not have continued to allow her patients to be
placed under Roberts’s care. Roberts disrupted the operating room, caused morale problems, and
created stress in the operating room that was counterproductive to patient care. Morale and work
flow improved after Roberts left the operating room, in Dunn’s opinion.
In the view of the district court, the most damning testimony about Roberts’s performance
came from Dr. Janet Brown, an ophthalmologic surgeon at the VAMC. Dr. Brown, an assistant
professor at the East Tennessee University College of Medicine for ten years, had performed surgery
at VAMC for nineteen years. Dr. Brown performed cataract surgery using topical anesthesia applied
with the patient awake. As recounted in the ABI report and reiterated during trial, Dr. Brown
testified that Roberts did not adequately sedate several of her patients, which resulted in
complications. She testified that Roberts was unwilling to communicate with the doctor or comply
with her requests. Roberts’s actions increased patient risk, discomfort, and stress. Dr. Brown
reported Roberts’s inadequate job performance to Dr. Goulding but there was no change in Roberts’s
performance. Dr. Brown testified that she would never allow Roberts to work with her again. The
district court found Dr. Brown to be a wholly credible witness.
Roberts disputed much of her coworkers’ testimony. She rejected the notion that she created
the discord in the operating room. Rather, she placed the blame primarily on Hagen and Fuentes.
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She also pointed out the positive performance appraisals she received since leaving the operating
room.
After the close of proofs, the district court took the case under advisement. The district court
subsequently issued a written opinion and judgment dismissing Roberts’s retaliation claim for lack
of a causal connection between any retaliatory motives of her coworkers and Dr. Cancellaro’s
decision to transfer her to another department. The district court determined Roberts had “created
disruption and disharmony in the operating room,” “had great difficulty getting along with others,”
and “more importantly, that she refused direct physician directives in dealing with patient sedation.”
Roberts, D. Ct. Op. at 15. The district court found that, together, these problems “had a clear
potential for significant, detrimental impact on patient care at VAMC.” Id. It was this potential
impact on patient care, rather than retaliatory animus, that caused her transfer, according to the
district court. Id. at 19-20. The district court also denied Roberts’s claim of attorneys’ fees in
connection with the FOIA violation. Id. at 25.
Roberts appealed.1
II
A. Standard of Review
1
On appeal, Roberts focuses entirely on her Title VII retaliation claim. Accordingly, she has
abandoned any appeal as to her claim for attorneys’ fees under FOIA. Renkel v. United States, 456
F.3d 640, 642 n.1 (6th Cir. 2006).
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The district court issued findings of fact and conclusions of law after the bench trial. Under
Federal Rule of Civil Procedure 52, we “must not . . . set aside” the findings of fact “unless clearly
erroneous.” Fed. R. Civ. P. 52(a)(6). We must also “give due regard to the trial court’s opportunity
to judge the witnesses’ credibility.” Id. “Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous. This is so even when the district
court’s findings do not rest on credibility determinations, but are based instead on physical or
documentary evidence or inferences from other facts.” Anderson v. City of Bessemer City, 470 U.S.
564, 574 (1985) (internal citations omitted). As for the district court’s legal conclusions, we review
these de novo. Pressman v. Franklin Nat’l Bank, 384 F.3d 182, 185 (6th Cir. 2004).
When reviewing the judgment of a district court after a bench trial, we do not analyze the
plaintiff’s claim under the burden-shifting paradigm of McDonnell-Burdine, but instead focus on the
“ultimate question” of discriminatory retaliation. Noble v. Brinker Int’l, Inc., 391 F.3d 715, 720 (6th
Cir. 2004). As the Supreme Court has explained,
[W]hen the defendant fails to persuade the district court to dismiss the action for lack
of a prima facie case, and responds to the plaintiff’s proof by offering evidence of the
reason for the plaintiff’s rejection, the fact finder must then decide whether the
rejection was discriminatory within the meaning of Title VII. At this stage, the
McDonnell-Burdine presumption drops from the case, and the factual inquiry
proceeds to a new level of specificity.
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-15 (1983) (internal citations and
quotation marks omitted). Moreover, whereas at the summary judgment stage, a plaintiff need only
come forth with something more than a scintilla of evidence to show that a genuine issue of fact
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exists, at the trial stage, the plaintiff must prove every element of her claim by a preponderance of
the evidence. See Poland v. Chertoff, 494 F.3d 1174, 1180 n.2 (9th Cir. 2007).
B. Retaliation
1. Section 704(a)
Section 704(a) of Title VII prohibits retaliation by covered employers for two types of
activity, opposition and participation:
It shall be an unlawful employment practice for an employer to discriminate against
any of his employees . . . because he has opposed any practice made an unlawful
employment practice by this subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing
under this subchapter.
42 U.S.C. § 2000e-3(a). To succeed on a claim of retaliation, the plaintiff must prove that she
engaged in protected activity; that her employer knew she engaged in protected activity; that her
employer took materially adverse action against her; and, finally, that her employer took the action
because she engaged in protected activity. See id.; Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 68-69 (2006). The district court held that Roberts’s claim failed at the causation stage.
2. Causation
Roberts had to prove that the animus created by her protected activity caused the VA to
transfer her. She concedes that the ultimate decisionmaker—Dr. Cancellaro—did not harbor any
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retaliatory animosity toward her.2 It is also undisputed that patient care is a primary concern for the
VAMC and that the VAMC has the authority and obligation to deploy employees and assets in a
manner that optimizes such care. Roberts does not take issue with these contentions, but instead
argues that patient care was not the motivating factor for her transfer. Rather, she argues that the
retaliatory animus of Hagen and her supporters so influenced Dr. Cancellaro’s decision that their
animus should be imputed to him. He was, according to Roberts, a mere (but effective) conduit in
their efforts to retaliate against her.
The record is clear that Hagen and at least some of the petition signatories acted against
Roberts because of her EEO activity. Hagen knew of the EEO charge against her and told her
nurses, who then drafted and signed one of the petitions. The surgeons’ and CRNAs’ petitions
specifically mention Roberts’s “complaint,” although neither states that the complaint was an EEO
charge. Without Hagen’s outburst after being informed of the EEO charge, it is unlikely that the
three petitions would have been given to Dr. Cancellaro in June 2001.
Yet, as noted by the district court, the discriminatory or retaliatory animus of a coworker is
not usually relevant to whether the employer violated Title VII. Rather, the relevant beliefs or
motivations are those of the actual decisionmaker, usually a supervisor or manager. Bush v.
Dictaphone Corp., 161 F.3d 363, 369 (6th Cir. 1998) (“[S]tatements by nondecisionmakers, or
statements by decisionmakers unrelated to the decisional process itself [cannot] suffice to satisfy the
2
Although Roberts suggests at various places in her briefs that Dr. Gerber was also a
decisionmaker, the district court focused on Dr. Cancellaro as the actual decisionmaker. As the
record demonstrates, Dr. Gerber delegated to Dr. Cancellaro the responsibility for determining
whether to transfer Roberts, although Dr. Gerber did sign off on her permanent transfer.
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plaintiff’s burden . . . of demonstrating animus.” (internal quotation marks omitted)); McDonald v.
Union Camp Corp., 898 F.2d 1155, 1161 (6th Cir. 1990) (“[A] statement by an intermediate level
management official is not indicative of discrimination when the ultimate decision to discharge is
made by an upper level official.”); cf. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72 (1986)
(concluding that Congress “evince[d] an intent to place some limits on the acts of employees for
which employers . . . are to be held responsible” under Title VII). Whether some of Roberts’s
coworkers reacted to her EEO activity is of little consequence if they did not, in some sense, cause
her transfer.
Roberts attempts to show exactly that—her coworkers, fueled by Hagen’s outburst, drafted
three inflammatory petitions, which influenced Dr. Cancellaro so strongly that it can be said that her
coworkers caused her transfer. Dr. Cancellaro’s testimony confirms that he relied principally, if not
solely, on the petitions when he decided to transfer Roberts temporarily to the emergency room.
Roberts does not, however, claim in her briefs that this temporary transfer, in and of itself,
constituted a violation of Title VII. Rather, she focuses on whether her permanent reassignment was
made in retaliation for her EEO activity. This is the issue that the district court considered, see
Roberts, D. Ct. Op. at 14, and Roberts does not raise any claim of error on appeal as to the scope of
the district court’s analysis.3
3
At oral argument, plaintiff’s counsel stated that the initial transfer was itself a separate claim
for relief. Because counsel raised the issue only at oral argument, however, we decline to review it.
Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703, 714 (6th Cir. 2001) (explaining that the court
of appeals will “not reward quick-thinking counsel by entertaining grounds brought to [the court’s]
attention for the first time at oral argument”).
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Had Dr. Cancellaro made his decision to transfer Roberts permanently based solely on the
three petitions, Roberts would have a strong argument that Dr. Cancellaro was nothing more than
a conduit or a “cat’s paw” of her coworkers’ retaliatory animosity. “In the employment
discrimination context, ‘cat’s paw’ refers to a situation in which a biased subordinate, who lacks
decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a
discriminatory employment action.” EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 484 (10th
Cir. 2006), cert. dismissed, 127 S. Ct. 1931 (2007); see also Arendale v. City of Memphis, 519 F.3d
587, 604 n.13 (6th Cir. 2008) (“When an adverse hiring decision is made by a supervisor who lacks
impermissible bias, but that supervisor was influenced by another individual who was motivated by
such bias, this Court has held that the employer may be held liable under a ‘rubber-stamp’ or ‘cat’s
paw’ theory of liability.”).4
Under this theory, the subordinate, not the nominal decisionmaker, is the driving force behind
the employment action. When a decisionmaker acts in accordance with a retaliator’s bias “without
[him]self evaluating the employee’s situation,” the retaliator “clearly causes the tangible employment
action, regardless of which individual actually” enforces the adverse transfer or termination.
4
The Tenth Circuit described the origin of the term “cat’s paw” as follows:
The “cat’s paw” doctrine derives its name from a fable, made famous by La Fontaine,
in which a monkey convinces an unwitting cat to pull chestnuts from a hot fire. As
the cat scoops the chestnuts from the fire one by one, burning his paw in the process,
the monkey eagerly gobbles them up, leaving none for the cat. Today the term “cat’s
paw” refers to one used by another to accomplish his purposes.
BCI Coca-Cola, 450 F.3d at 484 (internal quotation marks and citations omitted).
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Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249 (11th Cir. 1998) (citations omitted).
“In effect, the [retaliator] is the decisionmaker, and the titular ‘decisionmaker’ is a mere conduit for
the [retaliator’s] discriminatory animus.” Id. (emphasis in original). Imposing liability on the
employer in this context is in accord with the agency principles and policies underlying Title VII.
BCI Coca-Cola, 450 F.3d at 485-86.
However, when a decisionmaker makes a decision based on an independent investigation,
any causal link between the subordinate’s retaliatory animosity and the adverse action is severed.
Wilson v. Stroh Cos., 952 F.2d 942, 946 (6th Cir. 1992); see also BCI Coca-Cola, 450 F.3d at 485
(explaining that “a plaintiff could not prevail because the decisionmaker had conducted an
independent investigation of the facts, rather than relying entirely on the recommendation of the
biased subordinate”); Lacks v. Ferguson Reorganized Sch. Dist. R-2, 147 F.3d 718, 725 (8th Cir.
1998) (affirming summary judgment for employer school district because the board had engaged in
an independent investigation rather than rely simply on the desires of school administrators). By
making a decision based on an independent investigation, the decisionmaker confirms that he is
acting as a true agent of the employer and not a mere conduit of the subordinate. The question
becomes, then, whether the investigation here was an independent one or merely a façade. Shager
v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990).
Dr. Cancellaro did not himself investigate the factual assertions made in the petitions, but
neither did he uncritically accept them as true. Instead, he first appointed an internal factfinding
board and then, wanting a more thorough examination, appointed an external board with the power
to take sworn testimony. The ABI alone took sworn testimony or statements from almost thirty
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persons, including Roberts. These investigations were more extensive than ones found adequate by
this and other courts to break any causal link between a coworker’s animosity and an adverse action.
Wilson, 952 F.2d at 944, 946 (affirming summary judgment in favor of the employer, the Sixth
Circuit found that a manager’s discussion with one witness was sufficient for the investigation to be
independent); see also Llampallas, 163 F.3d at 1249 (finding that a meeting between a supervisor
and the plaintiff was sufficient “to except this case from the cat’s paw line of cases”); Lacks, 147
F.3d at 725 (concluding that the school board’s investigation, consisting of hearing testimony from
the plaintiff and fifteen other witnesses, reviewing various documents, and watching a videotape,
was sufficient for the investigation to be deemed independent).
Even if some of the witnesses who testified before the ABI had a hidden agenda, that alone
is not sufficient to compel a finding that the agenda caused the adverse action. Where the
employer’s decisionmaker tries to get all sides of the story, the employer will not be held liable
solely because one side might harbor a hidden bias against the plaintiff employee. See Llampallas,
163 F.3d at 1250. As the Tenth Circuit explained, “[S]imply asking an employee for his version of
events may defeat the inference that an employment decision was . . . discriminatory.” BCI
Coca-Cola, 450 F.3d at 488 (emphasis added).
The Ninth Circuit, however, appears to apply a more lenient standard for establishing
causation. In Poland, that court held:
[I]f a subordinate, in response to a plaintiff’s protected activity, sets in motion a
proceeding by an independent decisionmaker that leads to an adverse employment
action, the subordinate’s bias is imputed to the employer if the plaintiff can prove
that the allegedly independent adverse employment decision was not actually
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independent because the biased subordinate influenced or was involved in the
decision or decisionmaking process.
494 F.3d at 1182. A broad reading of this holding would impose employer liability whenever a
biased subordinate “influence[s]” an investigation by, for example, talking with the investigator,
giving the investigator a list of possible witnesses, or otherwise forwarding information to the
investigator.5 Yet, it is hard to fathom in practical terms how an investigator can know ahead of time
that a particular subordinate harbors discriminatory or retaliatory animosity against the employee.
Typically, it will only be with the benefit of 20/20 hindsight that the animosity will become clear.
As long as the decisionmaker seeks input from all sides of the dispute (most importantly from the
targeted employee) and as long as the decisionmaker does not permit a subordinate’s biased view
to become the overriding influence, then the resulting decision will be an independent one.
Roberts understandably wants us to focus on the petitions. Yet, those petitions were largely,
if not wholly, irrelevant to Dr. Cancellaro when he made his final decision. As he recounted during
trial, “It’s not sufficient just to sign a piece of paper . . . .” Trial Tr. at 375. Rather, it was the ABI’s
report upon which he based his final decision. The ABI report made clear that the problems with
Roberts predated Hagen’s outburst about the EEO charges and the subsequent petitions. This
message was reinforced at trial. Several of the witnesses testified that their problems with Roberts
were caused by her longstanding intimidation, hostility, and passive-aggressive personality. While
5
Poland is also factually distinguishable from the present case. The subordinate’s influence
on the investigation in Poland was much more extensive than was Hagen’s. See Poland, 494 F.3d
at 1178. Moreover, the investigative panel did not ask Poland to identify witnesses on his own
behalf. Id.
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several of the witnesses knew about Roberts’s EEO charges before they complained about her to
management, some asserted that they did not, including Dr. Brown whose testimony was fully
credited by the district court.
Roberts also points to certain statements made by the ABI to support her position that there
was no valid justification for transferring her. While noting some of the performance issues
identified by several of the witnesses, the ABI concluded that there was “nothing concrete and
substantial” upon which to base a transfer out of the operating room. ABI Rep. at 6. Moreover, the
ABI could “find no regulations or actions that could support the revocation of Ms. Roberts’[s]
privileges as a CRNA.” Id. Roberts argues that these statements, along with her positive
performance reviews since leaving the operating room and the trial testimony of Dr. James Battle,
who testified that he had no problems with Roberts’s professional performance, confirm that the VA
could “not legally justify, or cause,” her permanent transfer. Appellant’s Reply Br. at 11.
Roberts conflates legal justification with causation. In any event, what Roberts largely
ignores is the ABI’s conclusion that Roberts’s personality caused considerable discord within the
operating room. The ABI went so far as to predict that her “return [to the surgical service] would
likely cause the downfall of Mountain Home’s surgical program.” ABI Rep. at 5. In the ABI’s
words, Roberts’s reentry into the operating room “could certainly impact patient care” in a negative
way. Id.
Whether the ABI could identify a particular VA regulation to support the reassignment did
not bind Dr. Cancellaro. Personality conflicts can cause a group to become dysfunctional, and a
dysfunctional group working in an operating room can increase the risk of patient injury or death,
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No. 06-6059
Roberts v. Principi
regardless of the technical skills of each individual doctor or nurse. Dr. Cancellaro had the discretion
to reassign VAMC assets, including employees, to further the VAMC’s goal of patient care. As long
as his decision was based on that permissible goal, rather than an impermissible, retaliatory motive,
he could transfer her without violating Title VII.
Roberts is correct that the ABI did not place the entire blame on her. Dr. Goulding’s
supervision was, to say the least, lax. There appears to have been few effective controls over or
documentation of personnel issues. Moreover, Roberts was never even given copies of the petitions
until after she filed this lawsuit. Others in the operating room reciprocated Roberts’s ill-treatment
without much, if any, intervention by supervisors. Stronger management in the operating room
might have been able to defuse the problems earlier. With that said, it is clear that Roberts was a
fountainhead of discord in the operating room; after her removal, the operating room settled and
everyone began working as a team.
While Roberts does have some record evidence—primarily her testimony and the three
petitions—to support the inference that Dr. Cancellaro acted as a mere conduit of her coworker’s
retaliatory animus, she has failed to marshal sufficient evidence to compel that factual finding.
Accordingly, under the deference afforded to the district court’s factual findings, we conclude that
the district court did not clearly err in finding that Roberts failed to establish that her permanent
transfer was caused by any retaliatory animus of her employer.
III
For the reasons set forth above, we AFFIRM the judgment in favor of the defendants.
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