Break the Chain to Defeat a Retaliation Claim

The U.S. Court of Appeals for the Tenth Circuit, which has jurisdiction over Kansas and several other states, recently ruled that an employer’s independent review processes defeated a plaintiff’s claim of FMLA retaliation. Employers should take note and consider whether their internal processes to review discipline and termination might help head off retaliation claims.

The employee worked for an airline, taking calls and booking flight reservations. She was granted and took FMLA leave for a vision disorder and to care for her father, who had cancer. Five months later, the employer terminated her employment. The employee alleged she was fired in retaliation for taking FMLA leave, but the airline asserted the reason was poor job performance, because she engaged in a pattern of “call avoidance,” meaning placing customer calls on lengthy holds to avoid taking new calls.

Under the airline’s independent termination review policy, the employee’s supervisor could not directly fire her. Instead, the airline selected an independent senior manager to meet with the employee, her supervisor, and her union representative. After getting input from both sides related to the employee’s performance and the stated reason for her termination, the independent manager decided to terminate her employment. The employee appealed this decision through the airline’s grievance procedures, but declined to personally participate in the appeal hearing, and the termination decision remained in place.

Independent Review Saves the Day

In court, the employee argued that the airline should be liable for FMLA retaliation under what is called the “cat’s paw” theory of liability, arguing that a supervisor’s retaliatory motive should be imputed to the employer if the motive influenced the termination decision. In essence, she argued that her direct supervisor wanted to fire her for FMLA leave, and the direct manager was then able to infect the independent senior manager’s termination decision with that retaliatory motive.

The court considered whether the independent manager’s review of the employee’s conduct broke the causal chain between the alleged retaliatory motive of the direct supervisor and the firing itself. In other words, even if the employee’s direct supervisor had a retaliatory motive, was the employer liable for the termination when an independent manager made the firing decision?

The court concluded that the supervisor’s alleged retaliatory motive was not imputed to the independent manager who made the termination decision. The independent manager had relied on her own investigation into the facts of the situation and was not improperly influenced by the supervisor in her decision. The court further concluded that the airline’s termination appeal process also broke any causal chain between the supervisor’s supposed retaliatory motive and the ultimate decision to terminate employment.


The key takeaway for employers is that adopting some type of independent review process for termination decisions can help prevent liability for retaliation claims by ensuring that, even if the direct manager alleged has some improper motive, the termination decision is reviewed (and even investigated) by an objective observer. While you don’t need to adopt a procedure identical to the process used in this case, incorporating an independent and objective gatekeeper into the termination process could help your company defeat discrimination and retaliation claims.

Sarah Stula
Sarah Stula

Foulston Employment Law Attorney