In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2502

DEBORAH COOK,

Plaintiff-Appellant,

v.

IPC INTERNATIONAL CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:09-cv-00275-GPM-SCW—G. Patrick Murphy, Judge.

ARGUED FEBRUARY 13, 2012—DECIDED MARCH 8, 2012

Before POSNER, WOOD, and SYKES, Circuit Judges.

POSNER, Circuit Judge. The plaintiff sued the defendant

for sex discrimination and retaliation in violation of

Title VII of the Civil Rights Act of 1964. The case was

tried to a jury, which returned a verdict in favor of the

defendant. The plaintiff appeals from the judgment

entered by the district court in conformity with the

verdict and from the district court’s denial of her

motion under Fed. R. Civ. P. 59 for a new trial.
2 No. 11-2502

The defendant provided security for a mall in Alton,

Illinois, and employed the plaintiff as a security

supervisor at the mall. She presented evidence that her

immediate supervisor, a man named Spann, made

sexually offensive comments to other women in her

presence, said he wanted to have an all-male staff, and

exhibited favoritism toward his male subordinates.

The plaintiff complained to him repeatedly about his

behavior. He refused to change his ways, and instead

began giving her negative evaluations and accusing her

in communications to the defendant’s headquarters

of serious misconduct, including theft; the jury could

have found that the accusations were fabrications.

Apparently in response to Spann’s charges the defendant’s regional manager (and Spann’s immediate superior), a man named Colburne, told the plaintiff that he

was abolishing her job at the Alton mall and transferring her to a mall that the company provided security

for in another town. The transfer may actually have been

a demotion, for it was to be to a mall farther from her

home, and thus would lengthen her commute, and to a

line position rather than the position of “security supervisor” that she held at the Alton mall. She asked him

whether she was being fired, and he said no.

That was on a Thursday, and that afternoon, after

the meeting with him, she returned to work. She

was not scheduled to work on Friday, but she returned

to work as usual on Saturday. Spann saw her in uniform—

saw she was still working at the Alton mall—and told

her to clean out her locker and give him her office keys,
No. 11-2502 3

and she inferred not unreasonably that she was being

fired. And so the jury found—contrary to the defendant’s

position, maintained throughout this litigation, that she

was never fired. What is certain is that she never

accepted the transfer or tried to reclaim her job at the

Alton mall.

If the transfer would actually have been a demotion, or

an action otherwise “materially adverse” to her, intended

as retaliation for her complaining about employment

discrimination, she would have a claim under Title VII.

Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53, 67-

71 (2006). But she has never claimed that, since she

never was transferred, and she does not argue that the

transfer order was a constructive discharge (that is,

tantamount to firing, and treated the same by the law).

Her claim is that Spann fired her when she showed up

for work at the Alton mall two days after her meeting

with Colburne, and that he did so both because of her

gender (remember her testimony that he had said he

wanted an “all-male” staff) and in retaliation for her

having complained to him about his behavior toward

women, behavior that could reasonably have been

thought to violate Title VII and would thus bring the

alleged retaliation within the statute’s scope. 42 U.S.C.

§ 2000e-3(a); Crawford v. Metropolitan Government of Nashville & Davidson County, 555 U.S. 271, 276-78 (2009);

Burlington Northern & Santa Fe Ry. v. White, supra, 548

U.S. at 67-73; Fine v. Ryan Int’l Airlines, 305 F.3d 746, 751-

52 (7th Cir. 2002).

The judge instructed the jury that to find for the

plaintiff it had to find first that she had been fired
4 No. 11-2502

and second “that a decisionmaker for IPC fired Plaintiff

either because she was female or because she complained about sexually harassing comments. The decisionmaker is the IPC employee who was responsible for the

decision to terminate Plaintiff. Here, Plaintiff has alleged

that her supervisor Charles Spann was the IPC decisionmaker who terminated her employment.” The plaintiff’s lawyer objected to the “decisionmaker” instruction,

explaining that “all the jury has to do is determine that

the plaintiff was discharged from IPC as a result of

her gender . . . and/or in retaliation for her resisting in

good faith what she believed to be sexually harassing

or sexually discriminatory conduct.” The judge rejected

the objection without explanation.

The jury as we said found that the plaintiff had

indeed been fired. But it answered “No” to the second

question on the verdict form, the question corresponding to the decisionmaker instruction: “Do you,

the Jury, find that Charles Spann was the IPC International Corporation decisionmaker who terminated

Deborah Cook’s employment?” (The plaintiff’s lawyer

had objected to the question along with the instruction,

also unsuccessfully.) And so she lost her case.

After deliberating for four hours the jury had sent a

note to the district judge requesting clarification of the

decisionmaker question. The jury wanted to know

whether the word “the” in the phrase “the IPC

decisionmaker who terminated her employment” meant

“he was the sole decisionmaker versus being ‘a’

decisionmaker meaning he was a part of the decision
No. 11-2502 5

to terminate Deborah Cook.” Over the plaintiff’s objection the judge answered: “ ‘He’ means the ‘sole’

decisionmaker.” The judge was asked to clarify “the,” not

“he,” and doubtless meant to do so, but he wrote “He.”

The jury may, however, have thought the judge meant

that “he” must be the “sole” decisionmaker, which

would answer the question.

In refusing to set aside the jury’s verdict, the district

judge said that the plaintiff had failed to advance a

“cat’s paw” theory of employer liability and therefore

could prevail only if the jury found that Spann had

been the “sole decisionmaker,” that is, had been solely

responsible for firing her. On appeal the plaintiff argues

that the judge “replaced the Title VII ‘a motivating factor’ causation requirement with a ‘sole causation’ standard” and that this was “error as a matter of law.”

The reply brief invokes “multiple proximate causes.”

This is all a dreadful muddle, for which we appellate

judges must accept some blame because doctrine stated

as metaphor, such as the “cat’s paw” theory of liability,

which we introduced into employment discrimination

law in Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.

1990); see Staub v. Proctor Hospital, 131 S. Ct. 1186,

1190 n. 1, 1192-94 (2011), can be a judicial attractive nuisance; because vague judicial terminology, such as

“motivating factor” and “proximate cause” (the latter

has been a part of the judicial vocabulary for the last

150 years, yet its meaning has never become clear, see

CDX Liquidating Trust v. Venrock Associates, 640 F.3d

209, 214 (7th Cir. 2011); BCS Services, Inc. v. Heartwood 88,

LLC, 637 F.3d 750 (7th Cir. 2011)), confuses judges, jurors,
6 No. 11-2502

and lawyers alike; and because philosophical conundra

such as “causation” present unnecessary challenges to

understanding.

In the fable of the cat’s paw (a fable offensive to cats

and cat lovers, be it noted), a monkey who wants chestnuts that are roasting in a fire persuades an intellectually challenged cat to fetch the chestnuts from the

fire for the monkey, and the cat does so but in the

process burns its paw. In employment discrimination

law the “cat’s paw” metaphor refers to a situation in

which an employee is fired or subjected to some

other adverse employment action by a supervisor who

himself has no discriminatory motive, but who has been

manipulated by a subordinate who does have such a

motive and intended to bring about the adverse employment action. So if for example the subordinate has told

the supervisor that the employee in question is a thief,

but as the subordinate well knows she is not, the fact

that the supervisor has no reason to doubt the truthfulness of the accusation, and having no doubt fires

her, does not exonerate the employer if the subordinate’s motive was discriminatory. As explained in

Staub v. Proctor Hospital, supra, 131 S. Ct. at 1193, “since

a supervisor is an agent of the employer, when he

causes an adverse employment action the employer

causes it; and when discrimination is a motivating factor

in his doing so, it is a ‘motivating factor in the employer’s action.’ ”

Had Colburne fired the plaintiff because Spann had

told him she was a thief, she would have a cat’s paw

claim. But she has not made such a claim; indeed, she
No. 11-2502 7

has disclaimed it. Her claim is that Spann fired her.

Spann was no one’s cat’s paw; he was the monkey. He

wanted to get rid of her, and did so with his own paws,

rather than enlisting some hapless cat to do so. That in

any event is the plaintiff’s claim.

As for “ ‘motivating factor’ causation,” that’s an allusion

to a doctrine that the Supreme Court in Mt. Healthy City

School District Board of Education v. Doyle, 429 U.S. 274

(1977), created for use in civil rights suits alleging violations of the First Amendment, and that Congress added

to Title VII, with a refinement noted below, in 1991.

Desert Palace, Inc. v. Costa, 539 U.S. 90, 92-95, 101-02

(2003). If the plaintiff proves that the defendant’s

reasons for firing her included an unlawful reason—proves in other words that an unlawful intent was

a “motivating factor” in the decision to fire or take

other adverse action against her—but the defendant in

turn proves that it would have fired her anyway, for

a lawful reason, then she has not been hurt by the

illicit motive and cannot recover damages, 42 U.S.C.

§§ 2000e-2(m), -5(g)(2)(B)(ii); Hossack v. Floor Covering

Associates of Joliet, Inc., 492 F.3d 853, 860 (7th Cir. 2007);

Bobo v. United Parcel Service, Inc., 665 F.3d 741, 757 (6th

Cir. 2012), though an injunction, a declaratory judgment,

or an award of attorneys’ fees is permissible. 42 U.S.C.

§§ 2000e-5(g)(2)(B)(i), (ii).

The “cat’s paw” doctrine can be thought of as an application of the “motivating factor” doctrine; the monkey’s malevolent intent is imputed to the employer.

So if the employer can’t show that the monkey’s super-
8 No. 11-2502

visor, who did the actual firing (or took some other

adverse employment action), had a lawful motive

uncontaminated by the monkey that would have led

the supervisor to fire the employee even without the

monkey’s interference, the employee is entitled to damages. See Staub v. Proctor Hospital, supra, 131 S. Ct. at 1192.

But “motivating factor” is another irrelevance in this

case. There’s no evidence that had Spann not been in

the picture the plaintiff would have been fired anyway.

The defendant did not try to prove that—it denied

having fired her.

Injecting “sole decisionmaker” into the jury’s deliberations made the confusion complete. The company

argued that the plaintiff hadn’t been fired, not that, if

Spann’s telling her to clean out her locker and surrender

her keys amounted to firing her, nevertheless he was

put up to it by a superior, such as Colburne, who had

had a lawful motive and hadn’t been monkeyed. The

company presented no evidence that another decisionmaker or other decisionmakers were involved in

Spann’s decision to order her to clean out her locker

and return her keys. Since neither party presented evidence about whether other decisionmakers had been

involved, and the plaintiff had the burden of proof, the

requirement that to impose liability the jury had to

find that Spann had been the “sole” decisionmaker

amounted to directing a verdict for the employer.

From a legal as distinct from a factual standpoint,

the case was simple and should have been presented in

all its simplicity to the jury. Jurors are unlikely to under-
No. 11-2502 9

stand legal concepts that judges have difficulty understanding. The plaintiff claimed that Spann had fired

her because she was a woman and in retaliation for

her complaining about his sexually offensive behavior

and his discrimination in favor of his male subordinates.

The defendant claimed that she had not been fired,

but instead had been offered a transfer and had not

responded to the offer and had quit when Spann told

her to clean out her locker and turn in her keys, whereas

if she had wanted to continue working she would

have complained to Colburne, who had told her she

wasn’t being fired, and she would have accepted the

offered transfer. The jury had to choose between these

competing narratives. All the judge had to do was tell

the jury that. The jury’s note should have alerted him

that the jurors were in all likelihood seriously confused.

The instruction and verdict form were unsound, as

was the judge’s response to the jurors’ inquiry, and the

errors were not harmless because a properly instructed

jury might well have found in the plaintiff’s favor. The

judgment is therefore reversed and the case remanded

for a new trial.

REVERSED AND REMANDED.

3-8-12