In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2502
D EBORAH C OOK,
Plaintiff-Appellant,
v.
IPC INTERNATIONAL C ORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:09-cv-00275-GPM-SCW—G. Patrick Murphy, Judge.
A RGUED F EBRUARY 13, 2012—D ECIDED M ARCH 8, 2012
Before P OSNER, W OOD , and SYKES, Circuit Judges.
P OSNER, Circuit Judge. The plaintiff sued the defendant
for sex discrimination and retaliation in violation of
Title VII of the Civil Rights Act of 1964. The case was
tried to a jury, which returned a verdict in favor of the
defendant. The plaintiff appeals from the judgment
entered by the district court in conformity with the
verdict and from the district court’s denial of her
motion under Fed. R. Civ. P. 59 for a new trial.
2 No. 11-2502
The defendant provided security for a mall in Alton,
Illinois, and employed the plaintiff as a security
supervisor at the mall. She presented evidence that her
immediate supervisor, a man named Spann, made
sexually offensive comments to other women in her
presence, said he wanted to have an all-male staff, and
exhibited favoritism toward his male subordinates.
The plaintiff complained to him repeatedly about his
behavior. He refused to change his ways, and instead
began giving her negative evaluations and accusing her
in communications to the defendant’s headquarters
of serious misconduct, including theft; the jury could
have found that the accusations were fabrications.
Apparently in response to Spann’s charges the defen-
dant’s regional manager (and Spann’s immediate supe-
rior), a man named Colburne, told the plaintiff that he
was abolishing her job at the Alton mall and trans-
ferring her to a mall that the company provided security
for in another town. The transfer may actually have been
a demotion, for it was to be to a mall farther from her
home, and thus would lengthen her commute, and to a
line position rather than the position of “security super-
visor” that she held at the Alton mall. She asked him
whether she was being fired, and he said no.
That was on a Thursday, and that afternoon, after
the meeting with him, she returned to work. She
was not scheduled to work on Friday, but she returned
to work as usual on Saturday. Spann saw her in uniform—
saw she was still working at the Alton mall—and told
her to clean out her locker and give him her office keys,
No. 11-2502 3
and she inferred not unreasonably that she was being
fired. And so the jury found—contrary to the defendant’s
position, maintained throughout this litigation, that she
was never fired. What is certain is that she never
accepted the transfer or tried to reclaim her job at the
Alton mall.
If the transfer would actually have been a demotion, or
an action otherwise “materially adverse” to her, intended
as retaliation for her complaining about employment
discrimination, she would have a claim under Title VII.
Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53, 67-
71 (2006). But she has never claimed that, since she
never was transferred, and she does not argue that the
transfer order was a constructive discharge (that is,
tantamount to firing, and treated the same by the law).
Her claim is that Spann fired her when she showed up
for work at the Alton mall two days after her meeting
with Colburne, and that he did so both because of her
gender (remember her testimony that he had said he
wanted an “all-male” staff) and in retaliation for her
having complained to him about his behavior toward
women, behavior that could reasonably have been
thought to violate Title VII and would thus bring the
alleged retaliation within the statute’s scope. 42 U.S.C.
§ 2000e-3(a); Crawford v. Metropolitan Government of Nash-
ville & Davidson County, 555 U.S. 271, 276-78 (2009);
Burlington Northern & Santa Fe Ry. v. White, supra, 548
U.S. at 67-73; Fine v. Ryan Int’l Airlines, 305 F.3d 746, 751-
52 (7th Cir. 2002).
The judge instructed the jury that to find for the
plaintiff it had to find first that she had been fired
4 No. 11-2502
and second “that a decisionmaker for IPC fired Plaintiff
either because she was female or because she com-
plained about sexually harassing comments. The decision-
maker is the IPC employee who was responsible for the
decision to terminate Plaintiff. Here, Plaintiff has alleged
that her supervisor Charles Spann was the IPC deci-
sionmaker who terminated her employment.” The plain-
tiff’s lawyer objected to the “decisionmaker” instruction,
explaining that “all the jury has to do is determine that
the plaintiff was discharged from IPC as a result of
her gender . . . and/or in retaliation for her resisting in
good faith what she believed to be sexually harassing
or sexually discriminatory conduct.” The judge rejected
the objection without explanation.
The jury as we said found that the plaintiff had
indeed been fired. But it answered “No” to the second
question on the verdict form, the question cor-
responding to the decisionmaker instruction: “Do you,
the Jury, find that Charles Spann was the IPC Inter-
national Corporation decisionmaker who terminated
Deborah Cook’s employment?” (The plaintiff’s lawyer
had objected to the question along with the instruction,
also unsuccessfully.) And so she lost her case.
After deliberating for four hours the jury had sent a
note to the district judge requesting clarification of the
decisionmaker question. The jury wanted to know
whether the word “the” in the phrase “the IPC
decisionmaker who terminated her employment” meant
“he was the sole decisionmaker versus being ‘a’
decisionmaker meaning he was a part of the decision
No. 11-2502 5
to terminate Deborah Cook.” Over the plaintiff’s objec-
tion the judge answered: “ ‘He’ means the ‘sole’
decisionmaker.” The judge was asked to clarify “the,” not
“he,” and doubtless meant to do so, but he wrote “He.”
The jury may, however, have thought the judge meant
that “he” must be the “sole” decisionmaker, which
would answer the question.
In refusing to set aside the jury’s verdict, the district
judge said that the plaintiff had failed to advance a
“cat’s paw” theory of employer liability and therefore
could prevail only if the jury found that Spann had
been the “sole decisionmaker,” that is, had been solely
responsible for firing her. On appeal the plaintiff argues
that the judge “replaced the Title VII ‘a motivating fac-
tor’ causation requirement with a ‘sole causation’ stan-
dard” and that this was “error as a matter of law.”
The reply brief invokes “multiple proximate causes.”
This is all a dreadful muddle, for which we appellate
judges must accept some blame because doctrine stated
as metaphor, such as the “cat’s paw” theory of liability,
which we introduced into employment discrimination
law in Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.
1990); see Staub v. Proctor Hospital, 131 S. Ct. 1186,
1190 n. 1, 1192-94 (2011), can be a judicial attractive nui-
sance; because vague judicial terminology, such as
“motivating factor” and “proximate cause” (the latter
has been a part of the judicial vocabulary for the last
150 years, yet its meaning has never become clear, see
CDX Liquidating Trust v. Venrock Associates, 640 F.3d
209, 214 (7th Cir. 2011); BCS Services, Inc. v. Heartwood 88,
LLC, 637 F.3d 750 (7th Cir. 2011)), confuses judges, jurors,
6 No. 11-2502
and lawyers alike; and because philosophical conundra
such as “causation” present unnecessary challenges to
understanding.
In the fable of the cat’s paw (a fable offensive to cats
and cat lovers, be it noted), a monkey who wants chest-
nuts that are roasting in a fire persuades an intel-
lectually challenged cat to fetch the chestnuts from the
fire for the monkey, and the cat does so but in the
process burns its paw. In employment discrimination
law the “cat’s paw” metaphor 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 and intended to bring about the adverse employ-
ment action. So if for example the subordinate has told
the supervisor that the employee in question is a thief,
but as the subordinate well knows she is not, the fact
that the supervisor has no reason to doubt the truth-
fulness of the accusation, and having no doubt fires
her, does not exonerate the employer if the sub-
ordinate’s motive was discriminatory. As explained in
Staub v. Proctor Hospital, supra, 131 S. Ct. at 1193, “since
a supervisor is an agent of the employer, when he
causes an adverse employment action the employer
causes it; and when discrimination is a motivating factor
in his doing so, it is a ‘motivating factor in the em-
ployer’s action.’ ”
Had Colburne fired the plaintiff because Spann had
told him she was a thief, she would have a cat’s paw
claim. But she has not made such a claim; indeed, she
No. 11-2502 7
has disclaimed it. Her claim is that Spann fired her.
Spann was no one’s cat’s paw; he was the monkey. He
wanted to get rid of her, and did so with his own paws,
rather than enlisting some hapless cat to do so. That in
any event is the plaintiff’s claim.
As for “ ‘motivating factor’ causation,” that’s an allusion
to a doctrine that the Supreme Court in Mt. Healthy City
School District Board of Education v. Doyle, 429 U.S. 274
(1977), created for use in civil rights suits alleging viola-
tions of the First Amendment, and that Congress added
to Title VII, with a refinement noted below, in 1991.
Desert Palace, Inc. v. Costa, 539 U.S. 90, 92-95, 101-02
(2003). If the plaintiff proves that the defendant’s
reasons for firing her included an unlawful rea-
son—proves in other words that an unlawful intent was
a “motivating factor” in the decision to fire or take
other adverse action against her—but the defendant in
turn proves that it would have fired her anyway, for
a lawful reason, then she has not been hurt by the
illicit motive and cannot recover damages, 42 U.S.C.
§§ 2000e-2(m), -5(g)(2)(B)(ii); Hossack v. Floor Covering
Associates of Joliet, Inc., 492 F.3d 853, 860 (7th Cir. 2007);
Bobo v. United Parcel Service, Inc., 665 F.3d 741, 757 (6th
Cir. 2012), though an injunction, a declaratory judgment,
or an award of attorneys’ fees is permissible. 42 U.S.C.
§§ 2000e-5(g)(2)(B)(i), (ii).
The “cat’s paw” doctrine can be thought of as an ap-
plication of the “motivating factor” doctrine; the mon-
key’s malevolent intent is imputed to the employer.
So if the employer can’t show that the monkey’s super-
8 No. 11-2502
visor, who did the actual firing (or took some other
adverse employment action), had a lawful motive
uncontaminated by the monkey that would have led
the supervisor to fire the employee even without the
monkey’s interference, the employee is entitled to dam-
ages. See Staub v. Proctor Hospital, supra, 131 S. Ct. at 1192.
But “motivating factor” is another irrelevance in this
case. There’s no evidence that had Spann not been in
the picture the plaintiff would have been fired anyway.
The defendant did not try to prove that—it denied
having fired her.
Injecting “sole decisionmaker” into the jury’s delibera-
tions made the confusion complete. The company
argued that the plaintiff hadn’t been fired, not that, if
Spann’s telling her to clean out her locker and surrender
her keys amounted to firing her, nevertheless he was
put up to it by a superior, such as Colburne, who had
had a lawful motive and hadn’t been monkeyed. The
company presented no evidence that another decision-
maker or other decisionmakers were involved in
Spann’s decision to order her to clean out her locker
and return her keys. Since neither party presented evi-
dence about whether other decisionmakers had been
involved, and the plaintiff had the burden of proof, the
requirement that to impose liability the jury had to
find that Spann had been the “sole” decisionmaker
amounted to directing a verdict for the employer.
From a legal as distinct from a factual standpoint,
the case was simple and should have been presented in
all its simplicity to the jury. Jurors are unlikely to under-
No. 11-2502 9
stand legal concepts that judges have difficulty under-
standing. The plaintiff claimed that Spann had fired
her because she was a woman and in retaliation for
her complaining about his sexually offensive behavior
and his discrimination in favor of his male subordinates.
The defendant claimed that she had not been fired,
but instead had been offered a transfer and had not
responded to the offer and had quit when Spann told
her to clean out her locker and turn in her keys, whereas
if she had wanted to continue working she would
have complained to Colburne, who had told her she
wasn’t being fired, and she would have accepted the
offered transfer. The jury had to choose between these
competing narratives. All the judge had to do was tell
the jury that. The jury’s note should have alerted him
that the jurors were in all likelihood seriously confused.
The instruction and verdict form were unsound, as
was the judge’s response to the jurors’ inquiry, and the
errors were not harmless because a properly instructed
jury might well have found in the plaintiff’s favor. The
judgment is therefore reversed and the case remanded
for a new trial.
R EVERSED AND R EMANDED.
3-8-12