519 P.3d 551
Or. Ct. App.2022Background
- Denese Crosbie, an RNFA with 14 years at Ashland Community Hospital, was terminated in March 2017; she sued alleging retaliation under the Oregon Safe Employment Act (ORS 654.062) for reporting safety violations.
- Asante defended that Crosbie was fired for persistent bullying and disruptive conduct claimed by multiple nurses.
- At trial Crosbie requested a "cat’s paw" (imputation of subordinate bias) jury instruction; the court gave a version including a negligence requirement (employer knew or should have known of subordinate’s motive).
- The jury found for Crosbie on the OSEA claim and awarded $470,000; Crosbie’s postjudgment fee petition was denied.
- On appeal Asante argued the cat’s paw instruction is limited to supervisors and, alternatively, that it was unsupported by evidence; the Court of Appeals held cat’s paw can extend to coworkers only where evidence shows the coworker actually influenced or was involved in the adverse decision, and reversed and remanded because the instruction given was overly broad.
- The court also held that Crosbie’s verbal corrections to coworkers qualified as protected activity under OSEA (the regulation expressly protects opposition communicated to coworkers); the cross-appeal on attorney fees was rendered moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the cat’s paw doctrine can impute bias from a coworker (non‑supervisor) to the employer | Cat’s paw may apply where a biased subordinate influenced the decision, regardless of formal title | Cat’s paw is limited to supervisors because coworkers lack agency authority to affect employment decisions | Cat’s paw can extend to coworkers, but only if there is evidence the coworker influenced or was involved in the decision or the employer negligently enabled that influence |
| Whether the jury instruction’s language (“influenced, affected, or was involved in”) was proper | Instruction correctly described the causal pathway for imputation | Instruction was too broad and would allow imputation based on mere initiation of process | Instruction was impermissibly broad; requiring only that a subordinate “affected” the process could allow liability where the subordinate had no actual involvement or influence |
| Whether the record contained evidence that the allegedly biased nurses actually influenced the termination decision | Evidence of nurses’ complaints and corrective action contributed to decisionmaking | Nurses only made initial complaints and were not involved further; process was insulated from their input | Trial evidence showed the nurses were not involved in or did not influence the decisionmaking process; given the broad instruction, the error likely affected the verdict, so reversal and remand required |
| Whether Crosbie’s verbal corrections to coworkers constituted statutorily protected activity under OSEA | Crosbie’s direct opposition to unsafe practices (verbal corrections) is protected as “oppos[ing]” practices forbidden by the OSEA | Only reports to management qualify as protected activity; peer corrections do not | OSEA (and implementing regulation) protects opposition communicated to coworkers; there was evidence supporting that the nurses harbored retaliatory motives tied to that protected activity |
Key Cases Cited
- Ossanna v. Nike, Inc., 365 Or. 196 (Or. 2019) (adopting cat’s paw as a pathway to satisfy causation and explaining that imputation depends on subordinate influence or involvement)
- Staub v. Proctor Hospital, 562 U.S. 411 (U.S. 2011) (recognizing employer liability where a biased subordinate’s actions cause an adverse employment action by an ostensibly neutral decisionmaker)
- Poland v. Chertoff, 494 F.3d 1174 (9th Cir. 2007) (cat’s paw applies when a biased subordinate sets in motion a proceeding and exerts pervasive influence over the investigation/decision)
- Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990) (origin of the cat’s paw label; discusses supervisory authority and imputation)
- Boyd v. Legacy Health, 318 Or. App. 87 (Or. Ct. App. 2022) (illustrates proof of causation where a biased former supervisor influenced a successor decisionmaker)