Michigan Appeals Court Rejects Union Cat’s Paw Theory in Discrimination Case

The Michigan Court of Appeals has ruled against a Saginaw fire officer who claimed the city’s failure to appoint her acting fire chief, interim fire chief, and fire chief was sex discrimination and/or retaliation.

Ona Lee Aguilar was assigned as Training/Safety Officer, which according to the decision made her second in command in the department. The fire chief at the time, Earl Dean Holland, began mentoring her for eventual promotion to fire chief after he retired. However, for a variety of reasons, including her decision not to accept an interim appointment, Battalion Chief Christopher Van Loo was promoted.

Aguilar filed suit in Saginaw Circuit Court naming the city and Saginaw Firefighters, IAFF Local 102 as defendants. She argued that the city was liable not only because it intentionally discriminated and retaliated against her, but because it allowed the union too much discretion in making the fire chief selection decision. Under this theory, often referred to as the “Cat’s Paw” theory, even if the city did not have discriminatory intent the union’s intent could be imputed to the city.

The circuit court ruled in favor of the city, and Aguilar appealed. From the Court of Appeals’ decision:

  • Aguilar challenges the circuit court’s dismissal of her gender discrimination claims against the city based on its failure to appoint her as interim chief and to hire her as the permanent fire chief.
  • Aguilar certainly established the misogynistic atmosphere of the SFD over the past 20 years and the city’s lack of response to her previous legitimately raised concerns.
  • But the city’s prior inaction is not at issue in this case.
  • Aguilar failed to overcome the legitimate, nondiscriminatory reasons cited by the city for the hiring decisions challenged in this suit.
  • Aguilar established that she is a member of a protected class and that she suffered adverse employment actions when she was not named acting chief or promoted to fulltime fire chief.
  • Aguilar presented evidence that she was qualified for the position, both through education and experience.
  • Contrary to the city’s arguments, Aguilar did present evidence that the positions were given to Van Loo under circumstances suggesting discrimination.
  • [City Manager Darnell] Early had previously expressed shock over the idea of giving the fire chief position to a woman.
  • And Aguilar had faced years of harassment and discrimination from certain members of the SFD with the city doing nothing to remedy the situation.
  • Regarding the acting chief position, the city provided a legitimate, nondiscriminatory reason for not naming Aguilar as acting chief.
  • Aguilar’s evidence did not create a factual question regarding whether the city’s reason for not naming her interim chief was pretext.
  • Aguilar’s evidence cannot establish that the city was motivated by gender discrimination to keep her out of the interim chief position.
  • The city manager offered Aguilar the position in August 2013 before learning that such appointment would be barred by statute and had offered her the position twice before.
  •  [IAFF Local 102 President Tom] Raines testified that the city came into the CBA negotiations wanting full power and discretion to name an acting/interim chief.
  • It was the union that wanted transparency and a way to easily determine who would be appointed.
  • Aguilar presented no evidence beyond her conjecture that [Director of Employee Services Dennis] Jordan was motivated by discriminatory animus.
  • Jordan never made any comment suggesting discrimination.
  • Even the email in which Jordan instructed Aguilar not to attend the city council meeting is not probative. It simply relayed a confusing message from Early.
  • If any party potentially bore a discriminatory animus at this stage, it was the union, represented by Raines.
  • This is where the cat’s paw theory of liability comes into play. As described by this Court …
    • Imputing liability to a principal based on a non-decisionmaker’s [discriminatory] animus is colloquially referred to as the “cat’s-paw” or “rubber stamp” doctrine. Under this doctrine, a plaintiff seeks “to hold his employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision.”
    • 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.”
  • The problem in this case is that the union was not an agent of the city.
  • The union is a separate and distinct entity formed to protect its members from the acts of their employer—the city.
  • The union and the city are therefore adverse parties.
  • The city and the union came into the negotiation with opposite stances and the union won out.
  • But the union did not manipulate the city to act on its behalf to deny Aguilar the interim chief position based on gender.
  • Accordingly, we discern no ground to resurrect Aguilar’s gender discrimination claim against the city based on its failure to name her interim chief.
  • The city also provided a legitimate, nondiscriminatory reason for not hiring Aguilar as the permanent fire chief.
  • A panel of six individuals interviewed several candidates who met the posting requirements for the fire chief position.
  • None of those individuals recommended Aguilar for a follow-up interview.
  • Aguilar contends that a majority of the panel members cited her lack of incident command experience and her lack of support from the rank and file. These answers, she asserts, were prompted by the union’s addition of the incident command experience question to the interview list.
  • However, Aguilar has not presented evidence to create a question of fact that the city added this question out of a discriminatory motivation.

Here is a copy of the decision: Aguilar v. City of Saginaw

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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