In the

United States Court of Appeals

For the Seventh Circuit

Nos. 08-1316, 08-2255 & 08-2402

VINCENT E. STAUB,

Plaintiff-Appellee,

v.

PROCTOR HOSPITAL, an Illinois corporation,

Defendant-Appellant.

Appeals from the United States District Court

for the Central District of Illinois.

No. 04 C 1219—John A. Gorman, Magistrate Judge.

ARGUED DECEMBER 11, 2008—DECIDED MARCH 25, 2009

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,
2 Nos. 08-1316, 08-2255 & 08-2402

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
Nos. 08-1316, 08-2255 & 08-2402 3

Though we start our narrative in 2000—as that is when Staub 1

alleges his military-based problems arose—Staub’s employee file

was already thick by that date. In 1998, Proctor fired Staub

(temporarily, as it turns out) for refusing to work past his

scheduled shift. Staub was reinstated afterfiling a grievance, but

with certain conditions in place. Those conditions addressed

perceived weakness in availability, attitude, and communication. For instance, Staub was to communicate with his supervisor whenever he left his work area, and he was warned that

“any insubordination, immature behavior, unprofessionalism

or lack of support of [a] management decision[] w[ould] be

grounds for immediate dismissal.” This is relevant, as we

shall see, because Proctor says Staub’s latest termination was

due to similar insubordination and shirking of duties.

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
4 Nos. 08-1316, 08-2255 & 08-2402

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 circum-
Nos. 08-1316, 08-2255 & 08-2402 5

Apparently she did, at least to some degree. The very next 2

day, Korenchuk completed Staub’s annual evaluation, giving

(continued...)

stances 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
6 Nos. 08-1316, 08-2255 & 08-2402

(...continued) 2

him an impressive score of 97.53 out of 100. To be fair, though,

Staub’s evaluations from years past were not so sparkling; his

attitude, professionalism, and ability to work well with others

were noted as constant weaknesses. See supra n.1.

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
Nos. 08-1316, 08-2255 & 08-2402 7

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.”
8 Nos. 08-1316, 08-2255 & 08-2402

This discipline of Staub emboldened Mulally. Shortly

afterwards she called Staub’s Reserve Unit Administrator,

Joseph Abbidini, in Bartonville, Illinois. Mulally had called

Abbidini on a prior occasion to confirm that Staub was

actually a member of the Reserves, but now she wanted

to know if Staub could be excused from some of his

military duties. Mulally asked Abbidini if Staub really

had to attend two-week training in the summer because

he was needed at work. Abbidini stated that the training

was mandatory. Most Reserve members have outside

employment, he explained, so excusing Staub would set

an ugly precedent. Mulally’s response? She called

Abbadini an “asshole” and hung up. (Again, we add that

we are, as we are required to do at this stage of the proceedings, taking all facts in the light most favorable to

Mr. Staub.)

After all this, there can be little dispute that Mulally

didn’t like Staub, and that part of this animus flowed from

his membership in the military. But it was Day’s beef with

Staub—not Mulally’s—that would ultimately get the ball

rolling towards termination. On April 2, 2004, Day had a

meeting with Korenchuk, Linda Buck (vice-president of

Human Resources), and R. Garrett McGowan (chief

operating officer). Day was upset with Korenchuk because

she complained to him about Staub and he did nothing

in response. Day said she had difficulty working with

Staub, he would “absent himself from the department,”

and he tended to be “abrupt.” After Day left the room,

Korenchuk, Buck, and McGowan discussed what they

should do. This wasn’t the first time McGowan had heard

about “availability” problems involving Staub, so he told
Nos. 08-1316, 08-2255 & 08-2402 9

Though it is clear Staub was fired on the 20th, there is 3

some ambiguity as to whether the triggering event occurred that day. Staub, Sweborg, and Korenchuk said the event

occurred on the 20th, but Buck claimed it happened on the 19th

and said she mulled the situation over for a day before

settling on a decision. We find the collective recollection of

Staub, Sweborg, and Korenchuk more credible, but either way

it has no effect on the outcome of the case.

Korenchuk to work with Buck to create a plan that

would solve the issue. They never found time to do

that—Staub ran into trouble again and was fired three

weeks later on April 20.

3

The day of reckoning started out normally enough.

Staub and Sweborg worked together in the angio department all morning, finishing up around lunchtime. Hungry,

yet mindful of the prior warning, Staub walked to

Korenchuk’s office to tell him that he and Sweborg

were going to lunch. But Korenchuk wasn’t there. So

Staub walked back to the angio suite, placed a call to

Korenchuk’s office, and left a voice mail informing him

they were off to the cafeteria. Staub and Sweborg returned 30 minutes later and went to work on some leftover filming. Korenchuk showed up a few moments

afterwards, demanding to know where they had been. He

said he was “looking all over” for Staub, and Staub’s

explanation—that they were only at lunch and left a voice

mail—appeased him little. Korenchuk escorted Staub

down to Buck’s office in Human Resources, picking up a

security guard along the way. Korenchuk had met

with Buck earlier in the day—informing her that Staub
10 Nos. 08-1316, 08-2255 & 08-2402

failed to report in as instructed and couldn’t be located—so the decision to terminate was already made. As

Staub walked into the room, Buck handed him his pink

slip. The guard then escorted him off the grounds. Sweborg

was not disciplined, though she resigned a few days

later out of disgust.

According to the written notice, Staub was discharged

for failing to heed the earlier warning instructing him

to report to Korenchuk whenever he had no more work

in the angio department and otherwise to remain in the

general diagnostics area. Without the January 27 write-up,

Day’s April 2 complaint, and the event on April 20—all

of which involved unavailability or “disappearances”—

Buck said she would not have fired Staub. Buck’s testimony makes it clear that although she relied on

Korenchuk’s input, the ultimate decision was hers.

Korenchuk “reluctantly agreed” with her decision, but

it was her call to make.

Beyond consulting Korenchuk and reviewing the more

recent incidents, Buck relied on past issues with Staub in

making her decision. She said she heard “frequent complaints” about Staub during her first year with Proctor,

2001. And she knew of two workers who resigned because of Staub in 2002: an angio tech quit because Staub

made her feel like “gum on the bottom of his shoe,” and a

registered nurse gave up for similar reasons. What’s more,

a recruiter told Buck she had difficulty attracting workers

to angio because Staub “had a reputation.” Among other

things, he was known for flirting with medical students.

Admittedly, however, Buck failed to speak with other

angio techs who worked with Staub, including Sweborg,
Nos. 08-1316, 08-2255 & 08-2402 11

and she had no idea that Mulally and Day wanted Staub

fired. But Buck did review Staub’s employee file, including the good (like his most recent annual evaluation)

and the bad (like the January 27 write-up).

Staub filed a grievance following the termination. Staub

insisted that the January 27 write-up—containing the

command he allegedly violated—was fabricated by

Mulally to get him in trouble. Buck did not follow up with

Mulally about this claim—though she did discuss it with

another Human Resources official—and she did not

investigate Staub’s contention that Mulally was out to get

him because he was in the Reserves. Instead, Buck stuck

with her initial assessment: Staub, despite technical

competency, didn’t work well with others and deserved to

be fired for insubordination. Staub’s involvement with

the military played no role in her analysis.

Against this backdrop, Staub faced an uphill battle in

his USERRA discrimination suit. Like other employment

discrimination legislation, USERRA prohibits adverse

action based on a prohibited criterion, in this case military

status. 38 U.S.C. § 4311(a), (c)(1). But also as with other

discrimination legislation, a plaintiff suing under USERRA

does not win by showing prohibited animus by just

anyone. He must show that the decisionmaker harbored

animus and relied on that animus in choosing to take

action. Since Buck was the decisionmaker and there was

no evidence she had a problem with Staub on account of

his membership in the Reserves, Staub was out of luck

under the traditional rubric. But that doesn’t mean he

had no case at all.
12 Nos. 08-1316, 08-2255 & 08-2402

Deploying the cat’s paw theory, Staub sought to attribute

Mulally’s animus to Buck, and therefore to Proctor. He

posited that Mulally fed false information to Buck (i.e., that

he dodged work on January 26, 2004); that Mulally was

motivated to do this because he was a member of the

Army Reserves; and that Buck relied on this false information (without vetting it any meaningful way) in deciding

to fire him. The case made it to trial on this theory, where

the jury apparently found it convincing, returning a

verdict in Staub’s favor. Pursuant to the parties’ stipulation, Staub was awarded $57,640 in damages. The court

then denied Proctor’s renewed motion for a new trial

or judgment as a matter of law.

Proctor argues on appeal that the district court mishandled the cat’s paw theory (both in terms of instructing

the jury and admitting certain evidence), and also that the

evidence was insufficient. Before reaching those arguments, however, we must address Staub’s invitation to

review this not as a cat’s paw case, but as a traditional

discrimination suit. Staub attempts to skirt the cat’s paw

analysis by arguing that Buck was not the only decisionmaker. Staub says Buck shared that responsibility with

Korenchuk, who admittedly made some anti-military

remarks. If that were the case, it would not matter

whether Buck acted as the cat’s paw, because the jury

could find that a decisionmaker himself was biased. See 38

U.S.C. § 4311(c)(1); Lewis v. City of Chicago, 496 F.3d 645,

651-52 (7th Cir. 2007); Maxfield v. Cintas Corp. No. 2, 427

F.3d 544, 552-53 (8th Cir. 2005). The problem with this

theory is neither its logic nor even its lack of record

support (though that’s doubtful as well). Rather, the
Nos. 08-1316, 08-2255 & 08-2402 13

problem is that Staub failed to present this theory below, so

it is waived on appeal. See Mote v. Aetna Life Ins. Co., 502

F.3d 601, 608 n.4 (7th Cir. 2007). Even if the evidence did

support this new theory, we would be disinclined to

assume the jury entertained it because Staub presented

his case only as a cat’s paw matter. See United States v.

Ienco, 92 F.3d 564, 570 (7th Cir. 1996) (“[W]hen there is

reason to doubt that the jury even considered the only

proper theory under which the defendant can be convicted, the verdict cannot be upheld merely because we

are confident that the jury would have convicted had it

considered that theory.”). If Staub wanted to pitch two

alternative theories at trial, he could have done so. But he

chose to stick with the cat’s paw, so now it sticks with

him. And with that, we turn to the applicability

of La Fontaine’s “cat’s paw” to 21st century federal antidiscrimination law.

In Brewer, we applied the cat’s paw concept to discrimination law. That case dealt with the “Machiavellian world

of permit parking at the University of Illinois’s UrbanaChampaign campus, and the ill fortune of a student who

became involved in it.” 479 F.3d at 909. The student,

Lonnell Brewer, was fired from his part-time job after he

was caught with a modified parking tag. Brewer said his

supervisor (Kerrin Thompson) gave him permission to

modify the tag, and she kept this fact a secret because he

was black and she wanted him fired. The evidence of

animus on the part of Thompson was significant, to say the

least. Just before Brewer got the boot, Thompson yelled,

“I have had it with you nigger, get my tag!” Thompson,

however, did not make the decision to terminate. The
14 Nos. 08-1316, 08-2255 & 08-2402

decision instead came from someone higher up the chain

of command—Denise Hendricks—and there was no

evidence that she harbored any racial animus. Under the

normal discrimination framework, that would have been

the end of the road for Brewer’s case. But we held that his

claim could survive if he showed Thompson used

Hendricks as her cat’s paw. We said,

where an employee without formal authority to materially alter the terms and conditions of a plaintiff’s employment nonetheless uses her “singular influence”

over an employee who does have such power to harm

the plaintiff for racial reasons, the actions of the employee without formal authority are imputed to the

employer and the employer is in violation of Title VII.

Id. at 917. And we noted that this influence may be exercised by, among other things, “supplying misinformation

or failing to provide relevant information to the person

making the employment decision.” Id.

So Brewer’s case looked strong under this formula—there

was evidence that Thompson was racist, and that she

influenced Hendricks’s decision by withholding the fact

that she told Brewer he could park where he liked. But,

alas, we held against Brewer. It wasn’t fair to impute

Thompson’s animus to Hendricks, we concluded, because

Hendricks looked into the situation for herself; though

she “listened to the information Thompson relayed to her,”

she “did not simply rely on it.” Id. at 919. From this we

derived a simple rule to prevent the cat’s paw theory

from spiraling out of control:
Nos. 08-1316, 08-2255 & 08-2402 15

[W]here a decision maker is not wholly dependent on

a single source of information, but instead conducts

its own investigation into the facts relevant to the

decision, the employer is not liable for an employee’s

submission of misinformation to the decision maker.

Id. at 918. By asking whether the decisionmaker conducted her own investigation and analysis, we respected

the role of the decisionmaker. We were, and remain to this

day, unprepared to find an employer liable based on a

nondecisionmaker’s animus unless the “decisionmaker”

herself held that title only nominally. If the decisionmaker wasn’t used as a cat’s paw—if she didn’t just take

the monkey’s word for it, as it were—then of course the

theory is not in play.

We affirmed this principle in Metzger v. Illinois State

Police, 519 F.3d 677 (7th Cir. 2008). Though we acknowledged the cat’s paw as a viable theory in certain cases, we

held that it was wholly inappropriate in Metzger’s situation because there was neither evidence of singular influence nor proof that the decisionmaker’s review was

“anything but independent . . . .” Id. at 682.

Measured against this precedent, we find that there

was insufficient evidence to support a verdict against

Proctor under the cat’s paw theory. But before we

explain why, it is necessary to comment on the way the

trial court handled the matter. We do not fault the court

much for its approach—the judge certainly did an admirable job given the dearth of case law—but we agree

with Proctor that the division of labor between jury

and court, if not the jury instruction itself, was legally

defective.
16 Nos. 08-1316, 08-2255 & 08-2402

Just before the case went to trial, Proctor filed motions

in limine seeking to exclude evidence of military animus

on the part of individuals, principally Mulally, not involved in the decision to terminate. The court denied the

motions, however, reasoning that the evidence was essential to the cat’s paw theory. But the court agreed that

animus by a nondecisionmaker is only relevant if she

exercised singular influence over the decisionmaker, and

it instructed the jury to that effect. The instruction read

as follows:

The Defendant is a corporation and can act only

through its officers and employees. Animosity of a coworker toward the Plaintiff on the basis of Plaintiff’s

military status as a motivating factor may not be

attributed to Defendant unless that co-worker exercised such singular influence over the decision-maker

that the co-worker was basically the real decision

maker. This influence may have been exercised by concealing relevant information from or feeding false

information or selectively-chosen information to the

person or persons who made the decision to discharge Plaintiff.

If the decision maker is not wholly dependent on a

single source of information but instead conducts its

own investigation into the facts relevant to the decision, the Defendant is not liable for a non-decision

maker’s submission of misinformation or selectively

chosen information or failure to provide relevant

information to the decision maker. It does not matter

that much if the information has come from a single,
Nos. 08-1316, 08-2255 & 08-2402 17

Instead of saying “the Defendant,” for instance, the court 4

could have said “Proctor,” replaced “decision maker” with

“Buck,” and so on. Just as juries are ill-equipped to construe

legalese—aren’t we all!—they are more likely to understand

instructions that use facts rather than abstract terms.

potentially biased source, so long as the decision maker

does not artificially or by virtue of her role in the

company limit her investigation to information from

that source.

This instruction, we think, is unwieldy—a fact-driven

instruction would have been far more useful —but not 4

technically wrong. It captures the essence of Brewer, telling

the jury that it can only consider nondecisionmaker

animosity in the case of singular influence, and even then

that the employer is off the hook if the decisionmaker

did her own investigation. So we reject Proctor’s challenge to the instruction itself. But a court faced with the

cat’s paw theory case should not just give an instruction

and ask the jury to sort it all out. The court has a critical

task to perform before giving the instruction or admitting

evidence of nondecisionmaker animus—preferably at the

summary judgment or in limine stage of the proceedings.

Namely, the court should determine whether a reasonable

jury could find singular influence on the evidence to be

presented. If there is not sufficient evidence to support

such a determination, then the court has no business

admitting evidence of animus by nondecisionmakers.

Admitting this sort of evidence would not only be

technical legal error; it would likely be prejudicial due to
18 Nos. 08-1316, 08-2255 & 08-2402

the jury’s tendency to associate the nondecisionmaker’s

remarks with the employer, fairly or not.

As we say, however, we do not fault the court here for

failing to perform this task. Nothing in Brewer, Metzger, or

our other cases on the cat’s paw, see, e.g., Byrd v. Ill. Dep’t of

Pub. Health, 423 F.3d 696 (7th Cir. 2005); Schreiner v. Caterpillar, Inc., 250 F.3d 1096 (7th Cir. 2001), impart guidance as

to how a trial court should handle the theory. They say

what the cat’s paw requires, but nothing about the

division of labor between judge and jury. Nevertheless, the

approach we suggest—with the judge making a threshold

determination of whether a reasonable jury could find

singular influence before admitting evidence of nondecisionmaker animus—is supported in the law. Allowing

the jury to entertain the cat’s paw theory and decide

whether there was singular influence, but only upon a

prior determination that there is sufficient evidence for

such a finding, is consistent with Federal Rule of Evidence

104(b). That rule instructs courts to admit conditionally

relevant evidence—here, animosity by a nondecisionmaker—“upon . . . the introduction of evidence sufficient

to support a finding of the fulfillment of the condition.” In

other words, the jury could only properly consider evidence of animosity by Mulally (or any other nondecisionmaker) if the court determined that there was sufficient evidence to support a finding of singular influence

by Mulally (or another) over Buck.

Because the trial court in this case did not follow this

procedure, Staub’s abundant evidence of Mulally’s animosity was erroneously admitted into evidence. And
Nos. 08-1316, 08-2255 & 08-2402 19

this error was prejudicial because the strongest proof of

anti-military sentiment came from the improperly admitted evidence.

The normal remedy for prejudicial evidentiary error

is a new trial. See United States v. Garcia, 528 F.3d 481, 485

(7th Cir. 2008). However, a new trial is not warranted

where the properly considered evidence is insufficient to

support the jury’s verdict. In that case—assuming the

losing party filed a Rule 50(b) motion for judgment as a

matter of law or a new trial after the verdict, as Proctor

did—judgment should be entered in its favor, see Fed. R.

Civ. P. 50(b); Tate v. Exec. Mgmt. Servs., Inc., 546 F.3d 528,

531 (7th Cir. 2008); Fuesting v. Zimmer, Inc., 448 F.3d 936,

939 (7th Cir. 2006) (citing Unitherm Food Sys., Inc. v. SwiftEckrich, Inc., 546 U.S. 394 (2006)). Of course, the standard

is steep. “A verdict will be set aside as contrary to the

manifest weight of the evidence only if no rational jury

could have rendered the verdict.” Moore ex rel. Estate of

Grady v. Tuelja, 546 F.3d 423, 427 (7th Cir. 2008) (internal

quotation marks omitted). Considering the evidence as a

whole, we conclude that Proctor is entitled to judgment.

USERRA states that “[a] person who . . . has

performed . . . service in a uniformed service shall not

be denied initial employment, reemployment, retention

in employment, promotion, or any benefit of employment

by an employer on the basis of that . . . performance of

service . . . .” 38 U.S.C. § 4311(a). A plaintiff suing under

this Act must “demonstrate that he suffered an adverse

employment action and that the adverse action was

motivated in part by his military service.” Maher v. City
20 Nos. 08-1316, 08-2255 & 08-2402

of Chicago, 547 F.3d 817, 824 (7th Cir. 2008). Cf. 38 U.S.C.

§ 4311(c)(1) (explaining that an employer is not liable if,

despite anti-military bias, it would have taken the

action just the same). Staub failed to clear this bar.

The story told by the evidence is really quite plain. Apart

from the friction caused by his military service, the evidence suggests that Staub, although technically competent,

was prone to attitude problems. The fact that he made

some friends along the way (such as Sweborg) doesn’t

diminish the fact that he offended numerous others for

reasons unrelated to his participation in the Reserves. So,

when Staub ran into trouble in the winter and spring of

2004, he didn’t have the safety net of a good reputation.

Even if Staub behaved reasonably on the day of his discharge and the January 27 write-up was exaggerated by

Mulally, his track record nonetheless supported Buck’s

action. Most importantly, Buck took this action free of any

military-based animus, which Staub admits. And the cat’s

paw is not applicable—even setting aside the evidentiary

error—because a reasonable jury could not find that

Mulally (or anyone else) had singular influence over

Buck. To the contrary, the evidence established that Buck

looked beyond what Mulally and Korenchuk said—

remember, Korenchuk supported the firing only “reluctantly”—and determined that Staub was a liability to the

company. We admit that Buck’s investigation could have

been more robust, e.g., she failed to pursue Staub’s

theory that Mulally fabricated the write-up; had Buck done

this, she may have discovered that Mulally indeed bore a

great deal of anti-military animus. But the rule we developed in Brewer does not require the decisionmaker to be a
Nos. 08-1316, 08-2255 & 08-2402 21

paragon of independence. It is enough that the decisionmaker “is not wholly dependent on a single source of

information” and conducts her “own investigation into

the facts relevant to the decision” Brewer, 479 F.3d at

918. To require much more than that would be to ignore

the realities of the workplace. Decisionmakers usually

have to rely on others’ opinions to some extent because

they are removed from the underlying situation. But to

be a cat’s paw requires more; true to the fable, it requires

a blind reliance, the stuff of “singular influence.” Buck was

not a cat’s paw for Mulally or anyone else. Although

Mulally may have enjoyed seeing Staub fired due to his

association with the military, this was not the reason

he was fired. Viewing the evidence reasonably, it simply

cannot be said that Buck did anything other than exercise

her independent judgment, following a reasonable

review of the facts, and simply decide that Staub was

not a team player. We do not mean to suggest by all this

that we agree with Buck’s decision—it seems a bit harsh

given Staub’s upsides and tenure—but that is not

the issue. The question for us is whether a reasonable

jury could have concluded that Staub was fired because

he was a member of the military. To that question, the

answer is no.

We REVERSE and REMAND with instructions to enter

judgment in favor of Proctor.

3-25-09