F I L E D

United States Court of Appeals

Tenth Circuit
PU BL ISH

June 7, 2006

UNITED STATES CO URT O F APPEALS

Elisabeth A. Shumaker
Clerk of Court

TENTH CIRCUIT

EQ U A L EM PLO Y ME N T
O PPO RTU N ITY CO M M ISSIO N,
Plaintiff-Appellant,
v.
B CI C OCA-C OLA BO TTLIN G
CO M PANY OF LO S ANGELES,
doing business as Phoenix Coca-Cola
Bottling Company; CO CA -CO LA
B OTTLIN G CO M PA N Y O F
ALBUQ UERQU E,

No. 04-2220

Defendants-Appellees.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT

FOR T HE D ISTRICT OF NEW M EXICO
(D.C. No. CIV 02-1644)

Susan R. Oxford (Eric S. Dreiband, General Counsel, Carolyn L. W heeler, Acting

Associate General Counsel, Vincent J. Blackwood, Acting Associate General
Counsel, and Lorraine C. Davis, Assistant General Counsel, with her on the
briefs), Equal Employment Opportunity Commission, W ashington, D.C., for
Plaintiff-A ppellant.
E. Todd Presnell (Kara E. Shea with him on the brief), M iller & M artin PLLC,
Nashville, Tennessee, for Defendants-Appellees.

Before L UC ER O, M cKA Y, and M cCO NNELL, Circuit Judges.

M cCO NNELL, Circuit Judge.

The Equal Employment Opportunity Commission (EEOC) asks us to

reverse the district courts decision granting summary judgment to BCI Coca-Cola
Bottling Co. of Los Angeles (BCI) on a claim of race discrimination arising
from the termination of a black employee, Stephen Peters. It is undisputed that
the human resources official who made the decision to terminate M r. Peters
worked in a different city, had never met M r. Peters, and did not even know that
he was black. In making the decision to terminate, however, the human resources
official relied exclusively on information provided by M r. Peters immediate
supervisor, who not only knew M r. Peters race but allegedly had a history of
treating black employees unfavorably and making disparaging racial remarks in
the workplace. Because we find that genuine issues of material fact exist as to
whether BCIs proffered explanation for the termination is a pretext for racial
discrimination, we reverse the decision of the district court and remand for further
proceedings.
I. Factual and Procedural Background
Stephen Peters worked as a merchandiser for BCI at its Albuquerque, New
M exico facility from M ay 1995 through October 2001.

M ore than 60% of the

200 employees at the Albuquerque facility were Hispanic, while fewer than 2%
were black.

M erchandisers are hourly employees responsible for placement of

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Coca-Cola products in retail outlets such as grocery stores. Their job duties
include arranging, cleaning, and rotating product displays and promotional
materials. They generally work five days a week, with two days off, but because
grocery stores remain open seven days a w eek, merchandisers schedules are
staggered and they must occasionally work overtime to cover shifts. As the most
senior merchandiser in the district, M r. Peters had the most desirable schedule,
with Saturdays and Sundays off. He was generally regarded as a good
merchandiser, and in 2001 he received a certificate from BCI thanking him for
five years of service, dedication and commitment to the Company. App. 143,
151. The certificate specifically thanked him for being a team player. Id. at
151.
M r. Peters reported to Cesar Grado, a D istrict Sales M anager, who is
Hispanic. On a day-to-day basis, M r. Peters was supervised by a salaried
Account M anager, Jeff Katt, who is white. Although both M r. Katt and M r.
Peters both reported directly to M r. Grado, who handled all scheduling and route
assignments for merchandisers and account managers in his district, it was
comm on for merchandisers to call in sick to the account manager who supervised
their work. M r. Grado was responsible for monitoring and evaluating the
employees under his supervision, but was not authorized to discipline or terminate
anyone. Instead, M r. Grado had broad discretion to bring facts relating to the
matter to the attention of [the] Human Resources Department, which was
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ultimately responsible for deciding which company policy applied and whether to
take any disciplinary action. App. 34. The highest-ranking human resources
official in the A lbuquerque office w as Sherry Pederson. M s. Pedersons
supervisor, Pat Edgar, w orked 450 miles away in BCIs Phoenix, Arizona office.
Neither M s. Pederson nor M s. Edgar had met or even heard of M r. Peters until
September 28, 2001, four days before his termination.
The weekend of September 2930, 2001, M r. Grado faced a serious
scheduling crunch. Several stores in his district were running ads for Coca-Cola
products, necessitating an extra merchandiser for the weekend, and on the
morning of Friday, September 28 he learned that another merchandiser who
ordinarily worked as a floater to cover extra shifts had suffered an on-the-job
injury and would be out for a week. Sometime between midday and 2:00 pm on
Friday, M r. Grado directed M r. Katt to direct M r. Peters to work on Sunday,
September 30. 1 W hen M r. Katt relayed the instruction, M r. Peters responded, I
cant do it. Ive got plans. Id. at 67. According to M r. Grado, when M r. Katt
recounted the conversation he added that M r. Peters said he might call in sick.
Id. at 35. Both M r. Peters and M r. Katt, however, deny that M r. Peters said

In his declaration, M r. Grado stated that he had already discussed the

matter with M r. Katt and M r. Peters had already agreed to work on Sunday,
September 30. It is unclear, then, why he contacted M r. Katt to order M r. Peters
yet again to work that day. In any case, M r. Katt denies that M r. Grado ever
contacted him before Friday at 2:00 concerning the possibility that M r. Peters
might w ork on Sunday.
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anything about being sick during that conversation, and M r. Katt denies passing
along any such comment to M r. G rado.
Frustrated, M r. Grado decided to seek advice from the Human Resources
Department. M s. Pederson was out of the office on Friday afternoon, so M r.
Grado called M s. Edgar in Phoenix. M r. Grado said that he expected M r. Peters
was going to refuse to come to work on Sunday, and asked whether he could
require M r. Peters to come in on his day off. Specifically, he told M s. Edgar that
M r. Peters planned to call in sick on Sunday. M s. Edgar found that prospect
unacceptable because, under BCI policy, an employee may not call in sick two
days in advance. Id. at 23. She advised M r. Grado to find out what the situation
was and, unless M r. Peters had a compelling reason why he could not come to
work, to order M r. Peters to work on Sunday. Id. She told M r. Grado to
characterize the instruction as a direct order and to say that failure to comply
would amount to insubordination, which is grounds for termination. Id.
M r. Grado then paged M r. Peters, who called immediately. M r. Grado
ordered M r. Peters to work on Sunday, and M r. Peters responded that he had
plans. M r. Grado says that he asked M r. Peters what his plans were, but that M r.
Peters angrily responded that his plans were none of [M r. G rados] business,
and started yelling. M r. Peters says that M r. Grado never asked his plans;
instead, he simply told M r. Grado that he had plans and that he had not been
feeling well all week. They both agree, however, that M r. Grado said, Im not
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asking you to come to work, Im telling you to come to work. If you do not come
to work, it could lead to insubordination and could lead to termination. Id. at 58.
They also agree that the conversation ended with M r. Peters telling M r. Grado,
[D]o what [you] got to do and Ill do what I got to do. Id. M r. Peters claims
that he intended this statement as a way to end the conversation without a
confrontation. M r. Grado interpreted it as open defiance, and a firm intention to
disobey the order to come to work on Sunday.
Late in the afternoon on Friday, M r. Grado again contacted M s. Edgar in
Phoenix. He related exactly what had happened: that he had asked M r. Peters
to describe his plans, but that M r. Peters had refused to say what his plans were,
had angrily said his plans w ere none of [M r. Grados] business, and had told
M r. Grado to do what he needed to do. Id. at 24, 65. M s. Edgar determined at
that time that M r. Petersconduct in that conversation, standing alone, amounted
to insubordination warranting termination. Nonetheless, because it was late in the
day on Friday, she did not make the decision to terminate M r. Peters that day.
In fact M r. Peters was sick. On the evening of Saturday, September 29 he
cancelled his plans for Sunday and went to an urgent care clinic, complaining of a
headache, sinus pain, and cough. A doctor diagnosed him with a sinus infection,
gave him a prescription, and directed him not to return to work until M onday,
October 1. That night M r. Peters phoned M r. Katt and explained that he had just
come from the doctors office and probably could not work Sunday because of
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illness. M r. Katt said he didnt have any problem with that, but asked M r.
Peters to call in the morning if he felt w ell enough to work. Id. at 197. After
hanging up, M r. Katt repeatedly tried to page M r. Grado to describe the
conversation, but for some reason M r. G rado never responded to the pages.
M r. Peters did not work on Sunday, September 30. M r. Katt and M r. Grado
personally worked routes that day to ensure coverage. M r. Peters returned to
work as usual on M onday morning.
On M onday, October 1, M s. Edgar held a series of phone calls with M s.
Pederson (who was back in the office) and M r. Grado concerning M r. Peters
conduct. M r. G rado explained that M r. Peters had not come to work on Sunday.
Also, M s. Pederson pulled M r. Peters file and found a Disciplinary Status Notice
describing an incident in 1999 where M r. Peters received a two-day disciplinary
suspension and final warning for insubordination from a different supervisor.
During that incident, the supervisor had called M r. Peters on a Friday morning
and ordered him to work on his day off that weekend. M r. Peters refused and,
according to the status notice, was rude and unprofessional in his conduct. Id.
at 53. He was warned that [a]ll Coca-Cola employees must . . . follow direct
orders from their supervisors. Failure to comply is considered a direct act of
insubordination . . . . subject to disciplinary action up to and including
termination. Id. at 54. Although M s. Edgar did not know it, because the file
provides no further details, M r. Peters had good reason to be upset during the
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1999 incident. He had learned earlier that week that his fiances son whom he
had raised as his own son for years had been killed in a car accident. He could
not work that Saturday because he had to serve as a pallbearer at the funeral. His
supervisor told him that the funeral was no excuse for refusing a direct order
because he was not your biological son. Id. at 147.
By the end of the day on M onday, M s. Edgar made a final decision to
terminate M r. Peters for insubordination. In a declaration prepared as part of this
litigation in 2004, M s. Edgar said that her decision was based [f]irst and
foremost on the conduct of M r. Peters toward M r. Grado on Friday. Id. at 26.
The 1999 incident from the file reinforced for M s. Edgar that M r. Peters had a
track record of insubordination, and also contributed to the decision. She
emphasized that M r. Peters was not terminated because he did not show up for
work on Sunday, except to the extent this conduct is view ed in context with his
exchange with M r. Grado on Friday . . . as the fulfillment of M r. Peters [sic]
stated intention to defy a direct order from M r. Grado. Id. at 27. M s. Edgar
claims that she had already learned, in a conversation with M r. Grado, that M r.
Peters had been excused by M r. Katt from work on Sunday, but that this
information did not affect her decision. She found M r. Peters alleged sickness
to be highly suspect, and found it particularly suspicious that M r. Peters chose
to call in sick to M r. Katt, rather than M r. Grado, given the fact that M r. Peters

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had been warned by M r. Grado the day before that if he did not come to work he
would be subject to termination. Id. at 27.
M r. Katts deposition provides a different account of these events. M r.
Katt says that he did not tell M r. Grado that M r. Peters phoned in sick until
M onday evening at 6:00 pm, during a discussion of the upcoming weeks
schedule. M r. Katt asked which route M r. Peters was going to cover, and M r.
Grado replied, I think Im going to terminate him. Id. at 203. M r. Katt asked,
You do know he called in, he called in sick to me? Id. at 204. M r. Grado kind
of paused and asked, W hy didnt you tell me that earlier? Id. M r. Katt
replied, I did. I tried to page you. Id. According to M r. Katt, this exchange
took place M onday evening, after M s. Edgar already made her decision to
terminate M r. Peters.
M r. Peters was terminated Tuesday morning, October 2, at a meeting
attended by M r. Peters, M r. Grado, M r. Grados supervisor Don Bateluna, and
M s. Peterson. M r. Grado began the discussion by announcing, Youve been
terminated for insubordination, for not showing up for work. Id. at 193. M r.
Peters w as promptly presented with a termination paper. That document said
nothing about M r. Peters raising his voice or refusing to explain his plans during
the phone conversation on Friday. Instead, the notice states that M r. Peters had
been given a direct order to work on Sunday, and had been warned that failure to
comply with the directive would be considered insubordination and would result
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in termination. Id. at 41. It concludes, You did not report to work on Sunday
9-30-01, therefore your employment in [sic] being terminated for
insubordination. Id. The violation date listed is Sunday, September 30, the
day M r. Peters was supposed to come to work, not Friday, September 28, the day
of the conversation with M r. G rado. Id.
M r. Peters explained that he had not reported to work because he was sick.
He said that he had called M r. Katt and had received permission to miss work that
day because I went to the doctor. Id. at 193. He protested that [n]either one
of [you] asked me w hy I didnt show up for work. Id. M r. Peters says that after
he told them about the call to M r. Katt, they all got quiet. And when I left they
shut the door and was [sic] in there talking. Id.
Shortly after that meeting, M s. Pederson called M s. Edgar and asked
whether she knew M r. Peters was black. Neither M s. Pederson nor M s. Edgar had
ever met M r. Peters, and neither knew that he was black until the meeting on
Tuesday morning. Apparently M s. Pedersons inspection of the file was so
cursory that she did not even learn basic information such as M r. Peters
race which was noted on several documents in his personnel file even as she
was taking steps toward terminating him. M s. Edgar maintains that [r]ace played
no part whatsoever in my decision to terminate the employment of Stephen
Peters. Id. at 28. Indeed, part of her job as a human resources official was to

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conduct affirmative action and equal employment opportunity training sessions

for B CI management.
On October 11, 2001, M r. Peters filed a charge with the EEOC alleging that
his termination was the result of racial discrimination. The EEOC filed suit on
his behalf in federal court on December 30, 2002. Its theory was that, even if M s.
Edgar was the sole decisionmaker and she did not know that M r. Peters was
black, Grado harbored racial animus toward African American employees and . .
. this bias was properly imputed to BCI because of Grados substantial
involvement in the termination process as Peters supervisor and Edgars sole
source of information about the events on which BCI alleges the termination was
primarily based. Aplt. Br. 12. Relying principally on cases from other circuits,
the EEOC characterized this claim as arising under a cats paw or rubber
stamp theory, whereby an employer may be liable for the acts of a biased
subordinate, even if that subordinate is not the formal decisionmaker.
In support of its allegations concerning M r. Grados racial bias, the EEOC
presented affidavits from a number of other BCI employees. Three other
merchandisers who worked under the supervision of M r. Grado two black and
one Hispanic stated that M r. Grado treated black employees worse than
employees of other races. App. 181 (affidavit of James Young) (African
American employees were treated worse by Cesar Grado as compared to nonAfrican American employees.); id. at 183 (affidavit of Bryan Esquibel) (If
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Grado did not like you, he treated you badly; but African American employees
were treated even worse.); id. at 185 (affidavit of M ichael W ilson) (It is my
belief that Cesar Grado dislikes African Americans based on his treatment of me
during my employment at [BCI].). All three cited specific examples of incidents
in which M r. Grado subjected black employees to greater scrutiny and more
serious discipline than Hispanic employees. M r. W ilson, who is black, says that
M r. Grado continually demeaned me and threatened to replace me but always
treated Hispanic M erchandisers with respect. Id. at 185.
M r. W ilson also recall[ed] many race-based remarks made to me by Cesar
Grado during work hours. Id. at 184. According to M r. W ilson, M r. Grado told
jokes about black men dating Anglo women, and stated that Black guys [do] not
look good in trucks, they should drive Cadillacs. Id. at 185. One day, while
watching M r. W ilson clean an outdoor vending machine during the w inter, M r.
Grado urged him to hurry because brothers dont like the cold. Id. (internal
quotation marks omitted). Also, M r. Katt says that after the termination, during a
drive to a work site, M r. Grado asked, Did you hear Steve is trying to sue me?
Id. at 212. Although he is less than 100 percent clear about his recollection of
the conversation, M r. Katt says that M r. Grado may have used the w ord nigger
or a comparable racial epithet to describe M r. Peters during that conversation. Id.
The EEOC also compared M r. Grados treatment of M r. Peters w ith his
treatment of Hispanic employees under similar circumstances. On one occasion,
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for example, M r. Grado was short merchandisers during a busy weekend, so he

directed M r. Katt to direct M onica Lovato, a Hispanic merchandiser, to work one
of her days off. M s. Lovato planned to celebrate her birthday that weekend, and
she told M r. Katt she wanted both days off, but M r. Katt insisted and tried to
accommodate her schedule as much as possible. That weekend M s. Lovato never
showed up to work as directed, even after M r. Katt paged her repeatedly. W hen
he w as informed that M s. Lovato had disobeyed an order to come into work, M r.
Grado never inquired about her reasons. Instead, M r. Grado remarked, You
cant make somebody work one of their days off. Id. at 211. M s. Lovato never
received any discipline not even a warning as a result of the incident.
The district court granted summary judgment in favor of BCI. Operating
within the M cDonnell Douglas burden-shifting framework, it held that the EEOC
had established a prima facie case of discrimination, but that BCI had articulated
a legitimate nondiscriminatory reason for the termination: his insubordinate
conduct toward Grado. M em. Op. & Order 19. It held that no genuine issue of
material fact exists as to whether this proffered explanation was pretextual
because the pretext inquiry must focus exclusively on whether M s. Edgar honestly
believed that M r. Peters was guilty of insubordination on Friday, September 28.
Citing our statement in Kendrick v. Penske Transportation Services, Inc., 220
F.3d 1220, 1231 (10th Cir. 2000), that pretext must be evaluated by look[ing] at
the facts as they appear to the person making the decision to terminate plaintiff,
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the district court concluded that any factual disputes concerning the Friday
conversation were immaterial because M s. Edgar correctly applied BCIs policy
concerning insubordination to the facts as she understood them. M em. Op. &
Order 2425. The district court found the termination letter (You did not report
to work on Sunday 9-30-01, therefore your employment [is] being terminated for
insubordination) consistent with M s. Edgars declaration that the sole act of
insubordination for which he was terminated was his conduct during the call on
Friday. Id. at 26. According to the district court, the phone call and the failure to
come to w ork formed part of the same chain of events, and no reasonable jury
could find that BCIs explanations w ere shifting or inconsistent.
In evaluating the EEOCs rubber stamp or cats paw claim, the district
court acknowledged that the EEOC had raised a genuine issue of fact as to
whether M r. Grado harbored racial bias against African Americans. It noted,
however, that other circuits rubber stamp cases involved situations in which a
decision-maker accepted the recommendations of a biased supervisor without
conducting an independent investigation. Id. at 29 (emphasis in original). Here,
M r. Grado never officially recommended that M r. Peters be terminated; he merely
provided information to M s. Edgar, who made the final decision. Also, according
to the district court, M s. Edgar did conduct an independent investigation: she
asked M s. Pederson to pull M r. Peters personnel file. The issue of M r. Grados
bias therefore was not material.
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The district court granted BCIs motion for summary judgment, and the
EEOC now appeals. W e review the district courts decision de novo, viewing the
evidence in the light most favorable to the EEOC and drawing all reasonable
inferences in its favor. Fuerschbach v. S.W. Airlines Co., 439 F.3d 1197, 1207
(10th Cir. 2006). W e will affirm if the pleadings, depositions, answ ers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and BCI is entitled to a
judgment as a matter of law . Fed. R. Civ. P. 56(c).
II. Discussion
Under the M cDonnell Douglas framew ork, a plaintiff bears the initial
burden of establishing a prima facie case of racial discrimination, which consists
of a showing that (1) the plaintiff belongs to some protected class, (2) the
plaintiff was qualified for the position or benefit at issue, (3) the plaintiff suffered
an adverse employment action, and (4) the plaintiff was treated less favorably
than others (e.g., the position at issue remained open after the adverse
employment action). Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1134 (10th
Cir. 2004). BCI concedes that the EEOC has established a prima facie case here:
M r. Peters is black, he was qualified for his job as a merchandiser, he was
terminated, and the position remained open.
The burden therefore shifts to BCI to articulate a legitimate,
nondiscriminatory reason for the employment action. Jaramillo v. Colo. Judicial
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Dept, 427 F.3d 1303, 1308 (10th Cir. 2005). The EEOC concedes that BCI has
articulated a nondiscriminatory reason for its termination of M r. Peters: his
insubordination on Friday, September 28 during the phone conversation with M r.
Grado. Significantly, BCI maintains that M r. Peters absence on Sunday,
September 30 had nothing to do with the decision, except insofar as it confirmed
that M r. Peters statements on Friday were insubordinate. App. 27 (M r. Peters
was not terminated because he did not show up for w ork on Sunday . . . .).
The sole issue on appeal is whether the EEOC has made a sufficient
showing that BCIs proffered explanation is a pretext for race discrimination. See
M cDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973). Here, it is
undisputed that M s. Edgar, who formally made the termination decision, worked
in a different city and had no idea that M r. Peters is black. She therefore could
not have acted for racially discriminatory reasons. For the EEOC to prevail, it
must make not only a factual showing that M r. Grado harbored racial animus
toward black employees, but also a convincing legal claim that his racial animus
should be imputed to BCI despite the fact that M r. Grado had no power to
terminate anyone.
A. Subordinate Bias Liability
Other courts have recognized claims under Title VII based on the bias of a
subordinate, often using the terms cats paw or rubber stamp to describe the
theory. The cats paw doctrine derives its name from a fable, made famous by
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La Fontaine, in which a monkey convinces an unwitting cat to pull chestnuts from

a hot fire. See Fables of La Fontaine 344 (W alter Thornbury trans., Chartwell
Books 1984). As the cat scoops the chestnuts from the fire one by one, burning
his paw in the process, the monkey eagerly gobbles them up, leaving none left for
the cat. Id. Today the term cats-paw refers to one used by another to
accomplish his purposes. W ebsters Third New International Dictionary
U nabridged 354 (2002). In the employment discrimination context, cats paw
refers to a situation in which a biased subordinate, who lacks decisionmaking
power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger
a discriminatory employment action. Llampallas v. M ini-Circuits, Lab, Inc., 163
F.3d 1236, 1249 (11th Cir. 1998). The rubber stamp doctrine has a more
obvious etymology, and refers to a situation in which a decisionmaker gives
perfunctory approval for an adverse employment action explicitly recommended
by a biased subordinate. See Hill v. Lockheed M artin Logistics M gmt., Inc., 354
F.3d 277, 288 (4th Cir. 2004) (en banc). Our sister circuits overwhelmingly have
endorsed some version of these doctrines. See Galdamez v. Potter, 415 F.3d
1015, 1026 n.9 (9th Cir. 2005); Hill, 354 F.3d at 290; Stimpson v. City of
Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999); Griffin v. Wash. Convention
Ctr., 142 F.3d 1308, 131112 (D.C. Cir. 1998); Ercegovich v. Goodyear Tire &
Rubber Co., 154 F.3d 344, 35455 (6th Cir. 1998); Long v. Eastfield Coll., 88
F.3d 300, 307 (5th Cir. 1996); Abrams v. Lightolier Inc., 50 F.3d 1204, 121314
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(3d Cir. 1995); Stacks v. S.W. Bell Yellow Pages, Inc., 27 F.3d 1316, 1323 (8th
Cir. 1994); Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990) (Posner, J.)
(inaugurating the descriptor cats-paw for this category of claim).
Although this Court has not yet had occasion to find for a plaintiff on a
subordinate bias claim, we have strongly signaled our endorsement of the theory.
W e have stated that under certain circumstances, a defendant may be held liable
for a subordinate employees prejudice even if the manager lacked discriminatory
intent. English v. Colo. Dept of Corrs., 248 F.3d 1002, 1011 (10th Cir. 2001).
Specifically, we have described a rubber stamp theory of liability, noting that
[t]o recover under this theory, the plaintiff must show that the decisionmaker
followed the biased recommendation [of a subordinate] without independently
investigating the complaint against the employee. Id. (quoting Stimpson, 186
F.3d at 1332) (alteration in original). Twice we have held that a plaintiff could
not prevail because the decisionmaker had conducted an independent
investigation of the facts, rather than relying entirely on the recommendation of
the biased subordinate. See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d
1220, 123132 (10th Cir. 2000) (finding it [i]mportant[] that in the course of
his investigation the decisionmaker asked the employee to give his version of
the exchange, but the employee declined to do so); English, 248 F.3d at 1011
(noting that the decisionmaker met twice with the employee and his attorney, and
specifically asked for evidence rebutting or mitigating the findings of the
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allegedly biased subordinates). But we have described the plaintiffs underlying

theory of liability as correct. English, 248 F.3d at 1011.
These subordinate bias theories comport with the basic agency principles
incorporated by statute into Title VII. For purposes of Title VII, the term
employer includes not only any person engaged in an industry affecting
comm erce but any agent of such a person. 42 U.S.C. 2000e(b). Although
that language surely evinces an intent to place some limits on the acts of
employees for w hich employers are to be held responsible, M eritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 72 (1986), employers may be vicariously liable for
the actions of their employees even intentional torts outside the scope of their
employment if the employee was aided in accomplishing the tort by the
existence of the agency relation, Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 758 (1998) (quoting Restatement (Second) of Agency 219(2)(d) (1958)
[hereinafter Restatement]). In Ellerth, which involved a hostile work
environment claim, the Supreme Court held that a tangible employment action
taken by the supervisor becomes for Title VII purposes the act of the employer.
Id. at 762. Citing with approval the seminal cats paw opinion by Judge
Posner, the Court seemed unconcerned with the possibility that the tangible
employment decision[] might be subject to review by higher level supervisors.
Id. (citing Shager, 913 F.2d at 405). The aided by the agency relation standard
applies even more clearly to subordinate bias claims, such as cats paw or
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rubber stamp claims, because the allegedly biased subordinate accomplishes his
discriminatory goals by misusing the authority granted to him by the
employer for example, the authority to monitor performance, report disciplinary
infractions, and recommend employment actions. See Restatement 219(2)
cmt. e (explaining that the aided by the agency relation standard applies in
situations where the servant may be able to cause harm because of his position);
cf. Faragher v. City of Boca Raton, 524 U.S. 775, 80205 (1998) (contemplating
vicarious liability based on abuse of authority by supervisors, but emphasizing
that the aid in the aided by the agency relation formula must amount to more
than access to a pool of potential victims and the unspoken suggestion of
retaliation).
Holding employers accountable for the actions of biased subordinates also
advances the purposes of Title VII. It should go without saying that a companys
organizational chart does not always accurately reflect its decisionmaking
process. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 15152
(2000) (finding that the bias of a supervisor, the husband of the formal
decisionmaker, could be imputed to the company because the supervisor was the
actual decisionmaker and was principally responsible for petitioners firing);
Russell v. M cKinney Hosp. Venture, 235 F.3d 219, 227 (5th Cir. 2000) (noting
that courts will not blindly accept the titular decisionmaker as the true
decisionmaker). A biased low-level supervisor with no disciplinary authority
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might effectuate the termination of an employee from a protected class by

recommending discharge or by selectively reporting or even fabricating
information in communications with the formal decisionmaker. Recognition of
subordinate bias claims forecloses a strategic option for employers who might
seek to evade liability, even in the face of rampant race discrimination among
subordinates, through willful blindness as to the source of reports and
recommendations. Id. n.13 (holding that employers may not insulate themselves
from Title VII claims simply by ensuring that the one who performed the
employment action was isolated from the employee). Indeed, such claims have
the salutary effect of encouraging employers to verify information and review
recommendations before taking adverse employment actions against members of
protected groups particularly if, as we have held, an employer can escape
liability entirely by performing an independent investigation. See English, 248
F.3d at 1011. Construing the definition of an employer to permit subordinate
bias claims therefore serves Title VIIs deterrent purpose. See Ellerth, 524 U.S.
at 764 (noting that the extent of employer liability under Title VII should not
depend exclusively on common-law agency principles, but also should encourage
employer procedures that prevent discriminatory actions).
Despite broad support for some theory of subordinate bias liability, our
sister circuits have divided as to the level of control a biased subordinate must
exert over the employment decision. Some courts take a lenient approach,
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formulating the inquiry as whether the subordinate possessed leverage, or

exerted influence, over the titular decisionmaker. See Russell, 235 F.3d at 227.
On this view, summary judgment generally is improper where the plaintiff can
show that an employee with discriminatory animus provided factual information
or other input that may have affected the adverse employment action. Dey v.
Colt Constr. & Dev. Co., 28 F.3d 1446, 1459 (7th Cir. 1994) (citing Shager, 913
F.2d at 405). This standard apparently contemplates that any influence, the
reporting of any factual information, or any form of other input by a biased
subordinate renders the employer liable so long as the subordinate may have
affected the employment action. Such a weak relationship between the
subordinates actions and the ultimate employment decision improperly eliminates
a requirement of causation. See Ellerth, 524 U.S. at 745 (construing Title VII to
accommodate the agency principle of vicarious liability for harm caused by
misuse of supervisory authority (emphasis added)). W hen a biased subordinate
merely plays a peripheral role, it cannot be said that he has accomplish[ed] a
tortious act and cause[d] harm as required under agency law principles and,
accordingly, under Title VII. Restatement 219(2)(d) & cmt. e; see also id.
cmt. a (Rationale of liability) (The assumption of control is a usual basis for
imposing tort liability when the thing controlled causes harm.). M oreover, a
lenient may have affected standard that punishes employers for any input no
matter how minor weakens the deterrent effect of subordinate bias claims by
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imposing liability even where an employer has diligently conducted an

independent investigation.
At the opposite extreme, the Fourth Circuit has held that an employer
cannot be held liable even if a biased subordinate exercises substantial
influence or plays a significant role in the employment decision. Hill, 354
F.3d at 291. Taking its cue from the Supreme Courts statements in Reeves that
petitioner [had] introduced evidence that [the supervisor] was the actual
decisionmaker and was principally responsible for his firing, Reeves, 530 U.S.
at 15152, the Fourth Circuit held that these formulations mark the outer
contours of who may be considered a decisionmaker for purposes of imposing
liability upon an employer. Hill, 354 F.3d at 289. On this view, the
decisionmaker must be a cats paw so completely beholden to the subordinate
that the subordinate is the actual decisionmaker. Id. at 290. The Fourth
Circuits strict approach makes too much of the phrase actual decisionmaker in
Reeves; the Court was describing what the petitioners evidence showed, not
prescribing the outer contours of liability. See Reeves, 530 U.S. at 15152
(using the phrases actual decisionmaker and principally responsible only in
Part III.B, which begins, Applying this standard here . . .). The Fourth
Circuits peculiar focus on who is a decisionmaker for purposes of
discrimination actions, Hill, 354 F.3d at 286, seems misplaced. The w ord
decisionmaker appears nowhere in Title VII. Instead, the statute imposes
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liability for discrimination by employers and their agents, 42 U.S.C. 2000e(b),

which in accordance with agency law principles includes not only
decisionmakers but other agents whose actions, aided by the agency relation,
cause injury. Ellerth, 524 U .S. at 760. The Fourth Circuits standard also
undermines the deterrent effect of subordinate bias claims, allowing employers to
escape liability even when a subordinates discrimination is the sole cause of an
adverse employment action, on the theory that the subordinate did not exercise
complete control over the decisionmaker.
W e find ourselves in agreement with the Seventh Circuit, which has
rejected the Fourth Circuits approach as inconsistent with the normal analysis of
causal issues in tort litigation. Lust v. Sealy, Inc., 383 F.3d 580, 584 (7th Cir.
2004). To prevail on a subordinate bias claim, a plaintiff must establish more
than mere influence or input in the decisionmaking process. Rather, the issue
is whether the biased subordinates discriminatory reports, recommendation, or
other actions caused the adverse employment action. Id. This standard comports
with the agency law principles that animate the statutory definition of an
employer. See Restatement 219 (describing the scope of a masters liability
for the torts of his servants and thereby incorporating standard tort concepts
like causation). Both the Supreme Court and this Court require a comparable
causal connection as part of analogous workplace discrimination claims. See,
e.g., Clark County School Dist. v. Breeden, 532 U.S. 268, 272 (2001) (requiring a
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causal connection between the plaintiffs protected activities and the adverse
employment action in a Title VII retaliation claim); Rea v. M artin M arietta Corp.,
29 F.3d 1450, 1457 (10th Cir. 1994) (requiring a causal nexus between
allegedly discriminatory workplace statements and the termination decision in an
ADEA claim). W e reaffirm our earlier decisions holding that, because a plaintiff
must demonstrate that the actions of the biased subordinate caused the
employment action, an employer can avoid liability by conducting an independent
investigation of the allegations against an employee. English, 248 F.3d at 1011.
In that event, the employer has taken care not to rely exclusively on the say-so of
the biased subordinate, and the causal link is defeated. Indeed, under our
precedent, simply asking an employee for his version of events may defeat the
inference that an employment decision was racially discriminatory. Kendrick,
220 F.3d at 123132. Employers therefore have a powerful incentive to hear both
sides of the story before taking an adverse employment action against a member
of a protected class.
Finally, we address the district courts conclusion that an employer may be
liable on a subordinate bias theory only if the decisionmaker receives and
approves an explicit recommendation to terminate an employee. Regrettably,
subordinate bias cases have suffered from an abundance of vivid metaphors. The
Fourth Circuit, for example, seems to have taken the cats paw metaphor too
literally in deriving its total-control-over-the-actual-decision standard. Lust, 383
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F.3d at 584. Likewise, the district court in this case seems to have taken the
rubber stamp metaphor too literally, requiring that an explicit recommendation
must cross the desk of the decisionmaker, regardless of w hether the subordinates
discriminatory actions in fact caused the termination. That limitation of
subordinate bias claims not only runs counter to the fairly broad aided by the
agency relation principle embodied in Title VII, but would leave employees
unprotected so long as a subordinate stops short of mouthing the words you
should fire him, in person or on paper, to the decisionmaker. Stripped of their
metaphors, subordinate bias claims simply recognize that many companies
separate the decisionmaking function from the investigation and reporting
functions, and that racial bias can taint any of those functions. W e see no reason
to limit subordinate bias liability to situations that closely resemble the cats
paw, rubber stamp, conduit, vehicle, or other metaphors that imaginative
lawyers and judges have developed to describe such claims.
W ith these principles in mind, we turn to BCIs decision to terminate M r.
Peters.
B. The Subordinate Bias Claim in this Case
The EEOC argues that BCIs proffered explanation for its termination
decision is pretextual. To survive summary judgment on a subordinate bias
theory, the plaintiff must first establish a genuine issue of material fact
concerning the bias of the subordinate. It must then establish genuine issues of
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material fact as to whether the proffered reason for the employment action is
pretextual, which in a subordinate bias claim requires the plaintiff to demonstrate
a causal relationship between the subordinates actions and the employment
decision.
1. M r. Grados Racial Bias
The district court held, and we agree, that the EEOC has raised a genuine
issue of fact concerning M r. Grados racial animus. In general, isolated racial
comm ents are insufficient to establish pretext unless they can somehow be tied
to the employment actions disputed in the case at hand. Stewart v. Adolph Coors
Co., 217 F.3d 1285, 1289 (10th Cir. 2000) (internal quotation marks omitted).
Nonetheless, at the summary judgment stage all rational inferences from the
evidence must be made in favor of the party opposing the summary judgment
motion. Ortiz v. Norton, 254 F.3d 889, 896 (10th Cir. 2001). In Ortiz, we held
that evidence of discrimination in employment decisions affecting other w orkers
could support an inference that the decision makers harbored a bias against
Hispanics which might have affected other decisions, including the decisions
adverse to plaintiff. Id. A plaintiff also may show pretext by providing
evidence that he was treated differently from other similarly situated,
nonprotected employees who violated w ork rules of comparable seriousness,
provided the similarly situated employee shares the same supervisor, is subject
to the same performance standards, and otherwise faces comparable relevant
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employment circumstances. Green v. New M exico, 420 F.3d 1189, 1194 (10th
Cir. 2005) (quoting Kendrick, 220 F.3d at 1232).
In this case, the EEOC has produced sufficient evidence to create a jury
question concerning M r. Grados racial animus. M r. W ilson claims that M r.
Grado directed many race-based remarks, and offered three examples of racial
jokes and put-downs. App. 18485. In his affidavit, M r. Katt says that M r.
Grado may have used a racial epithet to describe M r. Peters in the immediate
aftermath of the termination and law suit. 2 Id. at 212. These comments may have
been infrequent, but they certainly were not isolated: they were directed at
other black merchandisers under M r. Grados supervision, suggesting a pattern of
racial bias in disciplinary matters that could have affected M r. Grados conduct
with respect to M r. Peters termination, and in one case concerned M r. Peters
himself.

BCI argues, in a footnote and without elaboration, that M r. Katts

testimony on this point is clearly inadmissible pursuant to Federal Rules of
Evidence 602 and 403, and therefore should be ignored. Br. of Appellee 41
n.17. The first objection is obviously wrong. Rule 602 requires that a witness
must have personal knowledge of the matter before testifying, but M r. Katts
affidavit recounts a conversation he personally conducted with M r. Grado. The
second objection is difficult to discern. Rule 403 provides that evidence may be
excluded if, in the view of the district court, its probative value is substantially
outweighed by the danger of unfair prejudice. If credited, M r. Katts testimony
about a racial slur directed at M r. Peters shortly after his termination is at least
probative of M r. Grados motive at the time of the termination. Like the district
court, which considered the testimony, see M em. Op. & Order 14, we are not
inclined to ignore the testimony as unduly prejudicial at this stage.
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In addition, three other merchandisers two black and one

Hispanic submitted affidavits giving specific examples of M r. Grados disparate
treatment of black and Hispanic merchandisers. M r. Young claims that M r.
Grado nit-pick[ed] my work and constantly threatened to change my days off
and to change my route, but did not . . . treat non-African American employees
in this manner. App. 181. He recalls being threatened with a schedule change
for leaving the back room of one of his stores a bit messy, while M r. Grado
tolerated a non-black merchandisers very messy back room many times. Id.
M r. Esquibel named six Hispanic employees who were not fired after disobeying
company directives. Id. at 183. M r. W ilson says that M r. Grado was unusually
picky with black merchandisers, often calling us back to stores that had been
serviced to redo some minor detail, while the Hispanic M erchandisers were not
subject to this same level of scrutiny. Id. at 185. Broadly, he claims that M r.
Grado treated Hispanic M erchandisers with respect but continually demeaned
me and threatened to replace me. Id.
M ost importantly, the EEOC produced evidence of M r. Grados unfazed
response to the incident involving a Hispanic merchandiser, M s. Lovato. Like
M r. Peters, M s. Lovato reported to M r. Grado and was directed to work one of her
days off. Like M r. Peters, she failed to come to work, in direct violation of her
instructions and in spite of considerable efforts by M r. Katt to come to
accom modate her schedule. Unlike M r. Peters, who was fired two days later, M s.
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Lovato received no discipline w hatsoever as a result of the incident, with M r.

Grado reportedly saying, You cant make somebody work one of their days off.
Id. at 211. To be sure, there are factual differences between these incidents: M s.
Lovato received all of her orders through M r. Katt whereas M r. Peters spoke to
M r. Grado directly, and M s. Lovato initially acquiesced in the orders (before
disobeying them) whereas, according to M r. Grado, M r. Peters initially behaved
in a defiant manner and announced an intention to disobey the orders (before
being excused from work). They are similar enough, however, that in light of the
dramatic difference between M r. Grados actions in each case, as well as the other
evidence of discriminatory conduct, a reasonable jury could find the situations
comparable and infer that racial animus played a role in M r. Peters treatment.
W e do not necessarily believe that each of the incidents recounted above
would support a charge of discrimination in isolation, but taken as a whole, this
evidence of racial comments and disparate treatment of black merchandisers
creates a genuine issue of fact regarding M r. Grados racial bias.
2. Pretext and Causation
To show that an employers proffered nondiscriminatory reason for an
employment action is pretextual, a plaintiff must produce evidence of such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the employers proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them unw orthy of credence and hence infer that
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the employer did not act for the asserted non-discriminatory reasons. M organ v.
Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quoting Olsen v. Gen. Elec.
Astrospace, 101 F.3d 947, 95152 (3d Cir. 1996)). Because the EEOCs pretext
argument depends in part on a subordinate bias theory, it must establish a genuine
issue of material fact as to whether M r. Grados bias translated into
discriminatory actions that caused M r. Peters termination.
BCI now maintains that it fired M r. Peters solely because of his defiant
conduct on the phone with M r. Grado on Friday, and that M r. Peters was not
terminated because he did not show up for work on Sunday, except to the extent
this conduct is viewed . . . as the fulfillment of [his] stated intention to defy a
direct order from M r. Grado. App. 27. On this theory, missing work on Sunday
merely confirmed that M r. Peters statements on Friday were insubordinate, and
did not serve as a basis for dismissal. Yet the first explanation provided by M r.
Grado at the Tuesday morning meeting was, Youve been terminated for
insubordination, for not showing up for work. Id. at 193 (emphasis added). The
Disciplinary Status Notice unequivocally states that the failure to show up for
work on Sunday was the act of insubordination: You did not report to work on
Sunday 9-30-01, therefore your employment in [sic] being terminated for
insubordination. Id. at 41. That document lists Sunday, not Friday, as the date
of the violation that prompted the termination, indicating that the act of
insubordination was the failure to come into work, not M r. Peters attitude during
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the earlier phone call. Indeed, on October 16, 2001, just two weeks after the
termination, M s. Pederson filed paperwork with the New M exico Department of
Labor stating that Stephen was told by Cesar Grado that if he didnt show up, it
would be considered insubordination. Id. at 165 (emphasis added). W hen asked
to describe the final incident that caused the discharge, M s. Pederson wrote,
Stephen did not show up for work on 9/30. Id. Only later did BCI characterize
its decision to fire M r. Peters as hinging on his defiant conduct over the phone,
rather than on his absence.
A jury might reasonably conclude that BCIs original explanation, that M r.
Peters was fired because he failed to show up for work on Sunday, was pretextual
because M r. Peters was excused from work that day. M r. Peters was in fact sick,
had visited an urgent care clinic, and had been diagnosed with a sinus infection
and directed not to w ork until M onday. He phoned M r. Katt to report the illness,
and was excused from work an interaction that BCI concedes is perfectly
ordinary between merchandisers and account managers. A jury could credit M s.
Edgars statements that she knew that M r. Peters absence was excused and
nonetheless (incorrectly, as it turns out) deemed M r. Peters alleged sickness
suspicious under the circumstances. But it might just as easily credit M r. Katts
testimony, rather than M s. Edgars, and conclude that neither M r. Grado nor M s.
Edgar learned that M r. Peters called in sick until the scheduling discussion
between M r. Katt and M r. Grado on M onday evening, after M s. Edgar claims she
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had already made the decision to fire M r. Peters. The affidavits of M r. Katt and
M r. Peters state that key players in the decision fell silent upon hearing that M r.
Peters absence was excused, suggesting that they were indeed surprised by the
news.
Recognizing the weakness of the original explanation, BCI has refined its
position by relying entirely on M r. Peters purported insubordination in his
conversation with M r. Grado on Friday. A jury could conclude, however, that
this reason too is a pretext for race discrimination, as the result of M r. Grados
racial animus. It is undisputed that M s. Edgar, and M s. Edgar alone, made the
formal termination decision. M r. Grado has succinctly described his role in the
disciplinary process: I gather the facts and I present them to our HR department,
and they decide whether it is an insubordination or not and whether theres action
to be taken or not. A pp. 63. Surely M s. Edgar harbored no ill will toward M r.
Peters on account of his race, because she worked in Phoenix and did not even
know that he was black. Yet it is also undisputed that M s. Edgar relied
exclusively on M r. Grados account of the Friday phone conversation in making
her decision. She conducted no independent inquiry into the events that took
place that Friday, and failed to take even the basic step cited by this Court in
Kendrick, 220 F.3d at 123132 of asking M r. Peters for his side of the story.
Accordingly, M r. Grados report that M r. Peters had behaved in a defiant,
insubordinate manner on Friday caused the termination. If the jury concludes that
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M r. Grados report was tainted by race discrimination as it might, for the

reasons explained above it could also find that the proffered reason for firing
M r. Peters, which rests entirely on that report, is pretextual.
BCI argues that any factual disputes concerning the Friday conversation
between M r. Grado and M r. Peters are immaterial because both parties agree that
M r. Peters ended the conversation by saying, [D]o what [you] got to do and Ill
do what I got to do. App. 58. W e agree that this statement can only be
interpreted as defiance, and if M r. Grado had reported nothing but this closing
remark to M s. Edgar, there would be no reason to believe that racial bias on the
part of M r. Grado caused the termination. Yet M r. Grado reported several
additional facts about his conversations on Friday afternoon. First, he told M s.
Edgar that he had learned, through M r. Katt, that M r. Peters was already planning
to call in sick two days later, in violation of company policy. Second, he reported
that in their phone call Friday afternoon, he asked M r. Peters to describe his
plans, affording an opportunity for M r. Peters to explain his scheduling conflict.
Third, he reported that M r. Peters angrily replied that it was none of [your]
business, and was yelling during the discussion. Id. at 36, 65.
All of those facts are disputed. Instead of crediting M r. Grados testimony,
a jury might believe M r. Katt, who says that he never told M r. Grado that M r.
Peters had advance plans to call in sick on Sunday, or M r. Peters, who says that
he simply told M r. Grado that he had been feeling sick that week, not that he
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planned to violate company policy. A jury might also credit M r. Peters version
of the Friday afternoon conversation, in w hich M r. Grado never bothered to ask
M r. Peters reasons, M r. Peters never refused to answer M r. Grados questions,
and M r. Peters remained calm throughout the discussion. There is good reason to
believe that M s. Edgar acted on those additional facts, not just on M r. Peters do
what you have to do remark. She denounced M r. Peters advance plans to call in
sick as not acceptable, an abuse of the company sick leave policy. Id. at 23.
Also, it was M s. Edgar who originally insisted that M r. Grado find out what the
situation was and determine whether M r. Peters had a compelling reason he
could not come to work, which suggests that she found that information important
in making her decision. Id. at 23. Taking the evidence in the light most
favorable to the EEOC, it is easy to imagine that the additional details of M r.
Grados account, in w hich M r. Peters appeared to be fabricating his illness,
started yelling at his supervisor, and refused to answer questions, led M s. Edgar
to characterize the conversation as insubordination warranting dismissal. The
question is not whether M s. Edgar could have terminated M r. Peters because of
his closing remark alone, which appears to have been permissible under BCI
policy, but what actually did cause the adverse employment action. If a jury
credits the testimony of M r. Peters and M r. Katt, and thus concludes that M r.
Grado lied to M s. Edgar, it could also find that the additional claims about M r.
Peters conduct caused the termination.
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Finally, BCI argues, and the district court agreed, that M s. Edgar did not
rely solely on M r. Grado but conducted an independent investigation. This
investigation consisted of exactly one action: directing M s. Pederson to pull M r.
Peters personnel file. W e find this investigation inadequate, as a matter of
law, to defeat the inference that M r. G rados racial bias tainted the decision.
Obviously the file contained no information about the recent incident involving
M r. Grado, so it is difficult to see how reading it could independently confirm
what had happened. True, the file contained a description of a 1999 incident of
insubordination, which (despite its ignoble back story) seemed consistent with
M r. Grados version of events. The problem is that M s. Edgar never sought any
other version of events, and therefore had no reason other than M r. Grados report
to believe that the file was relevant. Simply pulling the file therefore does not
constitute an independent investigation, and a jury could conclude that M r.
Grados factually disputed report the sole source of information on which M s.
Edgar relied caused the termination.
Because the EEOC has established genuine issues of material fact as to
whether the nondiscriminatory reasons offered by BCI are pretextual, summary
judgment was inappropriate.
III. Conclusion
W e REV ER SE the judgment of the district court and REM AND the case
for further proceedings consistent with this opinion.
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