Staub v. Proctor Hosp.

• Decision Date: 25 March 2009
• Docket Number: No. 08-2255.,No. 08-1316.,No. 08-2402.,08-1316.,08-2255.,08-2402.
• Citation: 560 F.3d 647
• Parties: Vincent E. STAUB, Plaintiff-Appellee, v. PROCTOR HOSPITAL, an Illinois corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

560 F.3d 647

Vincent E. STAUB, Plaintiff-Appellee, v. PROCTOR HOSPITAL, an Illinois corporation, Defendant-Appellant.

No. 08-1316.

No. 08-2255.

No. 08-2402.

United States Court of Appeals, Seventh Circuit.

Argued December 11, 2008.

Decided March 25, 2009.

Julie L. Galassi (argued), Hasselberg, Rock, Bell & Kuppler, Peoria, IL, for Plaintiff-Appellee.

Roy G. Davis (argued), Davis & Campbell, Peoria, IL, for Defendant-Appellant.

Before MANION, EVANS, and TINDER, Circuit Judges.

EVANS, Circuit Judge.

One would guess that the chances are pretty slim that the work of a 17th century French poet would find its way into a Chicago courtroom in 2009. But that's the situation in this case as we try to make sense out of what has been dubbed the "cat's paw" theory. The term derives from the fable "The Monkey and the Cat" penned by Jean de La Fontaine (1621-1695). In the tale, a clever—and rather unscrupulous—monkey persuades an unsuspecting feline to snatch chestnuts from a fire. The cat burns her paw in the process while the monkey profits, gulping down the chestnuts one by one. As understood today, a cat's paw is a "tool" or "one used by another to accomplish his purposes." Webster's Third New International Dictionary (1976). More on this a little later.

Vincent Staub sued the Proctor Hospital of Peoria, Illinois, under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 et seq., after he was discharged from his position as an angiography technologist. An Army reservist, Staub alleged that the reasons given— insubordination, shirking, and attitude problems—were just a pretext for discrimination based on his association with the military. A jury sided with Staub, and the district court denied Proctor's renewed motion for judgment as a matter of law or for a new trial. On appeal, Proctor argues that the court gave a faulty instruction regarding the "cat's paw" theory and, in connection with that error, improperly admitted evidence of animus by nondecisionmakers. The cat's paw theory, which we will discuss later in more detail, is a way of proving discrimination when the decisionmaker herself is admittedly unbiased; under the theory, the discriminatory animus of a nondecisionmaker is imputed to the decisionmaker where the former has singular influence over the latter and uses that influence to cause the adverse employment action. Brewer v. Board of Trustees of University of Illinois, 479 F.3d 908 (7th Cir.2007). In addition to attacking the way the district court handled this theory, Proctor says the evidence was insufficient to support a verdict under it. Staub contests these arguments head-on, but he also says the premise is flawed. We need not analyze this as a cat's paw case, Staub claims, because there was evidence that there were two decisionmakers, one of whom was clearly prejudiced. We start with the facts viewed in the light most favorable to the verdict.

Staub was a veteran member of the United States Army Reserve. Like all reservists, he was a part-time soldier, spending the bulk of his hours in the civilian world. For Staub, that meant employment as an angio tech for Proctor. Balancing work and military duties can be a complicated task, but Staub apparently managed. For a while, at least. In late 2000, some 10 years after he was hired, things began to grow a little tense.¹

It was around that time that Janice Mulally, second in command of the Diagnostic Imaging Department, began to prepare the department work schedules. Staub would notify Mulally of his drill and training obligations, which occupied one weekend per month and two weeks during the summer. Before Mulally took over scheduling, Staub had weekends off. But Mulally placed Staub back in the weekend rotation, creating conflicts with his drill schedule. Mulally did this even though she had advance notice of Staub's military obligations, and when Staub approached her about the issue she became agitated. Beginning in 2000, the scheduling conflicts were only "occasional," but Mulally's attitude reflected a deeper problem. Mulally responded to Staub's questions by throwing him out of her office and saying she "didn't want to deal with it." Staub found some relief by going to department head Michael Korenchuk, yet it was far from complete. Sometimes Mulally would change Staub's schedule after Korenchuk spoke with her, but other times she would post a notice on the bulletin board stating that volunteers were needed to cover the drill weekends, portraying Staub as irresponsible. And occasionally Mulally made Staub use his vacation time for drill days or scheduled him for additional shifts without notice. Mulally made her reasons plain: She called Staub's military duties "bullshit" and said the extra shifts were his "way of paying back the department for everyone else having to bend over backwards to cover [his] schedule for the Reserves." And it came as no surprise that Korenchuk did little to remedy the situation. Although Korenchuk only commented about Staub's reserve duties on a "couple different occasions," these comments were none too subtle. Korenchuk characterized drill weekends as "Army Reserve bullshit" and "a b[u]nch of smoking and joking and [a] waste of taxpayers['] money."

Bad as that was, things became worse in 2003. In February of that year, Staub was called to active duty for a period of up to one year. Though unforeseen circumstances cut the tour short at the 92-day mark, Staub's return home was less than pleasant. Korenchuk told one of Staub's coworkers, Amy Knoerle, that Mulally was "out to get" Staub. Knoerle was at a loss because she saw nothing in Staub but a hard worker and team player. However, she noticed that whenever Staub approached Mulally about drill obligations, Mulally would roll her eyes and make sighing noises.

Knoerle left her post in July of 2003, to be replaced by Leslie Sweborg. Two weeks into the job, Sweborg met Mulally and another coworker, Angie Day, for drinks after work. Expecting nothing more than casual chit-chat, Sweborg was shocked when the conversation turned to Staub. Mulally was blunt: "She said that [Staub's] military duty had been a strain on the[ ] department" and "she did not like him as an employee." So Mulally asked Sweborg "to help her get rid of him." Sweborg refused. In her opinion, Staub was always competent and professional, and there was no reason for such animosity.

Day, on the other hand, shared Mulally's dislike of Staub. In a departmental meeting on December 9, 2003, Day said Staub failed to train her properly and always seemed to "disappear" when help was needed. Sweborg defended Staub—saying he was a solid trainer and "just as available as any other tech in the department"—but Mulally shot her down. Mulally told Sweborg she "didn't know what [she] was talking about."²

In any case, the tide was turning against Staub, and his military obligations were at least peripherally involved. On January 9, 2004, Staub received an order to report for "soldier readiness processing," a precursor to another round of active deployment. Staub gave a copy of the order to both Korenchuk and Mulally, and Korenchuk became apprehensive. He asked Staub several times per week when he would have to ship out. Day had resigned by this point, leaving Sweborg and Staub as the only two angio techs. If Staub went on active duty, Korenchuk would have to use "rent-a-techs," placing strain on the department's budget.

One might think this enhanced Staub's job security, but not so. On January 27, 2004, Mulally gave Staub a written warning accusing him of shirking his duties. A bit of background information is necessary to understand what Staub allegedly failed to do, because it bore no connection to angiography. The Diagnostic Imaging Department (headed by Korenchuk) was divided into two units: one unit for angiography, and a far larger unit for traditional diagnostic imaging services like radiology, mammography, ultra sounds, CAT scans, and MRIs. Though they normally stuck to their speciality, angio techs were trained to work in both units and therefore had the ability to help out with radiology and the like when the need arose and the circumstances permitted. According to Mulally, however, Staub didn't respect that arrangement.

On the morning of January 26, a worker from general diagnostics called Mulally to see if any of the angio techs were free to help out. Mulally in turn called Sweborg and asked if she and Staub had any patients. Sweborg said they didn't and, according to Mulally, later admitted they were completely free from 8:30 to 9:45 a.m. Nevertheless, Sweborg and Staub failed to lend a hand. Mulally therefore issued Staub a written warning—Sweborg received one the next day—noting that he had already been warned about this behavior several times. But Staub and Sweborg dispute all that. They say they had an angio patient at 8:30 a.m., and although that case was ultimately cancelled by the doctor, they learned of the cancellation only 15 minutes prior to the call for help in general diagnostics, to which they immediately responded. Further, according to Sweborg and Staub, they had never before been instructed to report automatically to general diagnostics if they did not have angio cases. Staub thus refused to sign the warning, and he asked Korenchuk (who approved the action) why he was being targeted. Korenchuk said Mulally "had all of the pertinent facts," and he just signed the warning "to get her off of his back." So the warning stood, and so did its instructions for the future. Going forward, Staub was to "report to Mike [Korenchuk] or Jan [Mulally] when [he] ha[d] no patients and [the angio] cases [we]re complete[d]." He would also "remain in the general diagnostic area unless [he] specified to Mike or Jan where and why [he would] go elsewhere."

This discipline of Staub emboldened Mulally. Shortly afterwards she called Staub's Reserve Unit Administrator, ...