The U.S. Court of Appeals for the Ninth Circuit recently held that a subordinate employee's pervasive discriminatory influence on an otherwise independent investigation may impute liability on the employer. Poland v. Department of Homeland Sec., 9th Cir., No. 05-35508 (7/20/07). In so holding, the court outlined the applicable test for determining employer liability for actions of a subordinate employee:
"We hold that if a subordinate, in response to a plaintiff's protected activity, sets in motion a proceeding by an independent decision-maker 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 action was not actually independent because the biased subordinate influenced or was involved in the decision or decision-making process."
The subordinate employee must possess enough authority to be viewed as the one principally responsible for the decision. The plaintiff in the case was a U.S. Customs Officer who supervised three offices and 19 special agents for more than 10 years. The plaintiff filed an age discrimination complaint with his EEO office. The court found that the subordinate employee retaliated against the plaintiff by asking the Customs Service to undertake an administrative inquiry into the plaintiff's performance.
If the subordinate employee had only initiated the complaint, the court stated that it would not have imputed liability on the agency. The agency could have avoided liability if it had shielded the inquiry from the biased employee's influence. In this case, however, the inquiry panel was not shielded from the employee's influence. The biased subordinate employee wrote a lengthy memo outlining numerous incidents of alleged malfeasance by the plaintiff, provided a list of 21 witnesses, and gathered notes from another manager criticizing the plaintiff. The inquiry panel did not consult the plaintiff prior to investigating the allegations provided by the subordinate employee. The court held that the subordinate employee influenced the administrative inquiry which led to the adverse action. The employee's influence on the investigation established a sufficient causal link between discrimination and the adverse action to impute liability.
The court summarized its holding by stating that to establish the essential elements of causation in a subordinate bias case, where the investigation that led to the adverse employment decision was initiated by, and would not have happened but for the biased subordinate, the plaintiff must show that the allegedly independent adverse decision was not actually independent because the biased subordinate influenced or was involved in the decision or the investigation leading thereto. Because the subordinate employee framed and influenced the investigation, the adverse action was not independent.
This decision is a victory for supervisors whose subordinate employees retaliate for EEO activity. Biased employees can impute liability on their agency when attacking a supervisor. This decision offers all employees protection from biased investigations; not only subordinate employees from biased superiors, but supervisors from biased subordinates as well.