Under the FMLA, liquidated damages are a form of “extra” damage a court may award over and above other damages an employee is awarded. The employer can avoid liquidated damages, however, if it proves the FMLA violation was in good faith, that is, the employer reasonably believed its action did not violate the FMLA.
Marez v. Saint Gobain Containers (8th Cir., 7/31/12), shows that a decision maker’s good faith is not enough to avoid liquidated damages if the plaintiff relies upon the “cat’s paw” theory to prove liability. Cat’s paw in employment discrimination means an employer can be liable for discrimination even if the decision maker was not biased. It applies if there is evidence a non-decision maker acted with a discriminatory motive and caused the adverse employment action. The most common example is when the decision maker relies upon information or advice given by a biased non-decision maker.
Marez worked as a production supervisor at Saint Gobain plant that made glass beer bottles. On January 28, 2008, Marez notified her supervisor that she would require FMLA leave for her husband’s upcoming surgery; Marez did not know the exact date of the surgery but said it would be “soon.” Marez did not notify anyone else at the company about her leave request, nor did her supervisor. Notably, Marez had been on FMLA leave the previous July and August for several weeks, and there was evidence her supervisor was irritated about her lack of availability during that time.
Two days later, on January 30, Marez was terminated. One of the reasons given for the termination was that Marez had falsified paperwork. Specifically, she had reported on a check sheet that a piece of equipment was functioning when in fact it was “flatlining”, or not reporting data. Marez claimed it was an error and not a deliberate omission. Marez’s supervisor was the one who discovered the paper work was wrong. The supervisor assembled and presented the information about Plaintiff’s paperwork to another member of management. They consulted with the plant manager, and the three of them together made the decision to terminate Plaintiff.
The jury awarded the plaintiff damages of $206,500 for a FMLA violation, and the court added an additional $206,500 as liquidated damages. On appeal, Saint Gobain claimed that the trial court should not have awarded liquidated damages because two of the decision makers, the plant manager and another member of the management team, did not know about Plaintiff’s FMLA request at the time of the termination, and therefore reasonably believed Plaintiff’s termination would not violate the FMLA. In other words, even though Marez could rely upon a “cat’s paw” theory to establish liability under FMLA, Saint Gobain argued it should be not used as a basis for awarding liquidated damages. The Court rejected that argument:
Were we to accept the proposition that the cat’s paw theory applies to determining liability and lost wages but not to liquidated damages, that would have the result of treating less favorably for purposes of damages calculations plaintiffs who utilize the cat’s paw theory than those who do not. We see no basis in the statute for such a result.
The result in Marez is not surprising, given the tendency of courts to extend the cat’s paw theory to all of the laws that govern the employment relationship. This case should reinforce the importance of thorough investigations of the facts and circumstances before termination decisions are made. That includes getting the employee’s side of the story and whenever possible have a disinterested person investigate the facts.