Staub v. Proctor Hospital

(Slip Opinion) OCTOBER TERM, 2010 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

STAUB v. PROCTOR HOSPITAL

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

No. 09–400. Argued November 2, 2010—Decided March 1, 2011

While employed as an angiography technician by respondent Proctor

Hospital, petitioner Staub was a member of the United States Army

Reserve. Both his immediate supervisor (Mulally) and Mulally’s su

pervisor (Korenchuk) were hostile to his military obligations. Mu

lally gave Staub disciplinary warning which included a directive re

quiring Staub to report to her or Korenchuk when his cases were

completed. After receiving a report from Korenchuk that Staub had

violated the Corrective Action, Proctor’s vice president of human re

sources (Buck) reviewed Staub’s personnel file and decided to fire

him. Staub filed a grievance, claiming that Mulally had fabricated

the allegation underlying the warning out of hostility toward his

military obligations, but Buck adhered to her decision. Staub sued

Proctor under the Uniformed Services Employment and Reemploy

ment Rights Act of 1994 (USERRA), which forbids an employer to

deny “employment, reemployment, retention in employment, promo

tion, or any benefit of employment” based on a person’s “membership”

in or “obligation to perform service in a uniformed service,” 38

U. S. C. §4311(a), and provides that liability is established “if the

person’s membership . . . is a motivating factor in the employer’s ac

tion,” §4311(c). He contended not that Buck was motivated by hostil

ity to his military obligations, but that Mulally and Korenchuk were,

and that their actions influenced Buck’s decision. A jury found Proc

tor liable and awarded Staub damages, but the Seventh Circuit re

versed, holding that Proctor was entitled to judgment as a matter of

law because the decisionmaker had relied on more than Mulally’s and

Korenchuk’s advice in making her decision.

Held:

1. If a supervisor performs an act motivated by antimilitary ani

2 STAUB v. PROCTOR HOSPITAL

Syllabus

mus that is intended by the supervisor to cause an adverse employ

ment action, and if that act is a proximate cause of the ultimate em

ployment action, then the employer is liable under USERRA. In con

struing the phrase “motivating factor in the employer’s action,” this

Court starts from the premise that when Congress creates a federal

tort it adopts the background of general tort law. See, e.g., Burling

ton N. & S. F. R. Co. v. United States, 556 U. S. ___, ___. Intentional

torts such as the one here “generally require that the actor intend

‘the consequences’ of an act,’ not simply ‘the act itself.’ ” Kawaauhau

v. Geiger, 523 U. S. 57, 61–62. However, Proctor errs in contending

that an employer is not liable unless the de facto decisionmaker is

motivated by discriminatory animus. So long as the earlier agent in

tended, for discriminatory reasons, that the adverse action occur, he

has the scienter required for USERRA liability. Moreover, it is axio

matic under tort law that the decisionmaker’s exercise of judgment

does not prevent the earlier agent’s action from being the proximate

cause of the harm. See Hemi Group, LLC v. City of New York, 559

U. S. 1, ___. Nor can the ultimate decisionmaker’s judgment be

deemed a superseding cause of the harm. See Exxon Co., U. S. A. v.

Sofec, Inc., 517 U. S. 830, 837. Proctor’s approach would have an im

probable consequence: If an employer isolates a personnel official

from its supervisors, vests the decision to take adverse employment

actions in that official, and asks that official to review the employee’s

personnel file before taking the adverse action, then the employer

will be effectively shielded from discriminatory acts and recommen

dations of supervisors that were designed and intended to produce

the adverse action. Proctor also errs in arguing that a decision

maker’s independent investigation, and rejection, of an employee’s

discriminatory animus allegations should negate the effect of the

prior discrimination. Pp. 4–10.

2. Applying this analysis here, the Seventh Circuit erred in holding

that Proctor was entitled to judgment as a matter of law. Both Mu

lally and Korenchuk acted within the scope of their employment

when they took the actions that allegedly caused Buck to fire Staub.

There was also evidence that their actions were motivated by hostil

ity toward Staub’s military obligations, and that those actions were

causal factors underlying Buck’s decision. Finally, there was evi

dence that both Mulally and Korenchuk had the specific intent to

cause Staub’s termination. The Seventh Circuit is to consider in the

first instance whether the variance between the jury instruction

given at trial and the rule adopted here was harmless error or should

mandate a new trial. Pp. 11–12.

560 F. 3d 647, reversed and remanded.

Cite as: 562 U. S. ____ (2011) 3

Syllabus

SCALIA, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.

ALITO, J., filed an opinion concurring in the judgment, in which THO-

MAS, J., joined. KAGAN, J., took no part in the consideration or decision

of the case.

Cite as: 562 U. S. ____ (2011) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 09–400

_________________

VINCENT E. STAUB, PETITIONER v. PROCTOR

HOSPITAL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[March 1, 2011]

JUSTICE SCALIA delivered the opinion of the Court.

We consider the circumstances under which an em

ployer may be held liable for employment discrimination

based on the discriminatory animus of an employee who

influenced, but did not make, the ultimate employment

decision.

I

Petitioner Vincent Staub worked as an angiography

technician for respondent Proctor Hospital until 2004,

when he was fired. Staub and Proctor hotly dispute the

facts surrounding the firing, but because a jury found for

Staub in his claim of employment discrimination against

Proctor, we describe the facts viewed in the light most

favorable to him.

While employed by Proctor, Staub was a member of the

United States Army Reserve, which required him to at

tend drill one weekend per month and to train full time for

two to three weeks a year. Both Janice Mulally, Staub’s

immediate supervisor, and Michael Korenchuk, Mulally’s

supervisor, were hostile to Staub’s military obligations.

Mulally scheduled Staub for additional shifts without

2 STAUB v. PROCTOR HOSPITAL

Opinion of the Court

notice so that he would “ ‘pa[y] back the department for

everyone else having to bend over backwards to cover [his]

schedule for the Reserves.’ ” 560 F. 3d 647, 652 (CA7

2009). She also informed Staub’s co-worker, Leslie Swe

borg, that Staub’s “ ‘military duty had been a strain on

th[e] department,’ ” and asked Sweborg to help her “ ‘get

rid of him.’ ” Ibid. Korenchuk referred to Staub’s military

obligations as “ ‘a b[u]nch of smoking and joking and [a]

waste of taxpayers[’] money.’ ” Ibid. He was also aware

that Mulally was “ ‘out to get’ ” Staub. Ibid.

In January 2004, Mulally issued Staub a “Corrective

Action” disciplinary warning for purportedly violating a

company rule requiring him to stay in his work area

whenever he was not working with a patient. The Correc

tive Action included a directive requiring Staub to report

to Mulally or Korenchuk “ ‘when [he] ha[d] no patients and

[the angio] cases [we]re complete[d].’ ” Id., at 653. Accord

ing to Staub, Mulally’s justification for the Corrective

Action was false for two reasons: First, the company rule

invoked by Mulally did not exist; and second, even if it did,

Staub did not violate it.

On April 2, 2004, Angie Day, Staub’s co-worker, com

plained to Linda Buck, Proctor’s vice president of human

resources, and Garrett McGowan, Proctor’s chief operating

officer, about Staub’s frequent unavailability and abrupt

ness. McGowan directed Korenchuk and Buck to create a

plan that would solve Staub’s “ ‘availability’ problems.”

Id., at 654. But three weeks later, before they had time to

do so, Korenchuk informed Buck that Staub had left his

desk without informing a supervisor, in violation of the

January Corrective Action. Staub now contends this

accusation was false: he had left Korenchuk a voice-mail

notification that he was leaving his desk. Buck relied on

Korenchuk’s accusation, however, and after reviewing

Staub’s personnel file, she decided to fire him. The termi

nation notice stated that Staub had ignored the directive

Cite as: 562 U. S. ____ (2011) 3

Opinion of the Court

issued in the January 2004 Corrective Action.

Staub challenged his firing through Proctor’s grievance

process, claiming that Mulally had fabricated the allega

tion underlying the Corrective Action out of hostility

toward his military obligations. Buck did not follow

up with Mulally about this claim. After discussing the

matter with another personnel officer, Buck adhered to

her decision.

Staub sued Proctor under the Uniformed Services Em

ployment and Reemployment Rights Act of 1994, 38

U. S. C. §4301 et seq., claiming that his discharge was

motivated by hostility to his obligations as a military

reservist. His contention was not that Buck had any such

hostility but that Mulally and Korenchuk did, and that

their actions influenced Buck’s ultimate employment

decision. A jury found that Staub’s “military status was a

motivating factor in [Proctor’s] decision to discharge him,”

App. 68a, and awarded $57,640 in damages.

The Seventh Circuit reversed, holding that Proctor was

entitled to judgment as a matter of law. 560 F. 3d 647.

The court observed that Staub had brought a “ ‘cat’s paw’

case,” meaning that he sought to hold his employer liable

for the animus of a supervisor who was not charged with

making the ultimate employment decision. Id., at 655–

656.1 It explained that under Seventh Circuit precedent, a

“cat’s paw” case could not succeed unless the nondecision

maker exercised such “ ‘singular influence’ ” over the deci

——————

1 The term “cat’s paw” derives from a fable conceived by Aesop, put

into verse by La Fontaine in 1679, and injected into United States

employment discrimination law by Posner in 1990. See Shager v.

Upjohn Co., 913 F. 2d 398, 405 (CA7). In the fable, a monkey induces a

cat by flattery to extract roasting chestnuts from the fire. After the cat

has done so, burning its paws in the process, the monkey makes off

with the chestnuts and leaves the cat with nothing. A coda to the fable

(relevant only marginally, if at all, to employment law) observes that

the cat is similar to princes who, flattered by the king, perform services

on the king’s behalf and receive no reward.

4 STAUB v. PROCTOR HOSPITAL

Opinion of the Court

sionmaker that the decision to terminate was the product

of “blind reliance.” Id., at 659. It then noted that “Buck

looked beyond what Mulally and Korenchuk said,” relying

in part on her conversation with Day and her review of

Staub’s personnel file. Ibid. The court “admit[ted] that

Buck’s investigation could have been more robust,” since it

“failed to pursue Staub’s theory that Mulally fabricated

the write-up.” Ibid. But the court said that the “ ‘singular

influence’ ” rule “does not require the decisionmaker to be

a paragon of independence”: “It is enough that the deci

sionmaker is not wholly dependent on a single source of

information and conducts her own investigation into the

facts relevant to the decision.” Ibid. (internal quotation

marks omitted). Because the undisputed evidence estab

lished that Buck was not wholly dependent on the advice

of Korenchuk and Mulally, the court held that Proctor was

entitled to judgment. Ibid.

We granted certiorari. 559 U. S. ___ (2010).

II

The Uniformed Services Employment and Reemploy

ment Rights Act (USERRA) provides in relevant part as

follows:

“A person who is a member of . . . or has an obliga

tion to perform service in a uniformed service shall

not be denied initial employment, reemployment, re

tention in employment, promotion, or any benefit of

employment by an employer on the basis of that

membership, . . . or obligation.” 38 U. S. C. §4311(a).

It elaborates further:

“An employer shall be considered to have engaged

in actions prohibited . . . under subsection (a), if the

person’s membership . . . is a motivating factor in the

employer’s action, unless the employer can prove that

the action would have been taken in the absence of

Cite as: 562 U. S. ____ (2011) 5

Opinion of the Court

such membership.” §4311(c).

The statute is very similar to Title VII, which prohibits

employment discrimination “because of . . . race, color,

religion, sex, or national origin” and states that such

discrimination is established when one of those factors

“was a motivating factor for any employment practice,

even though other factors also motivated the practice.” 42

U. S. C. §§2000e–2(a), (m).

The central difficulty in this case is construing the

phrase “motivating factor in the employer’s action.” When

the company official who makes the decision to take an

adverse employment action is personally acting out of

hostility to the employee’s membership in or obligation to

a uniformed service, a motivating factor obviously exists.

The problem we confront arises when that official has no

discriminatory animus but is influenced by previous com

pany action that is the product of a like animus in some

one else.

In approaching this question, we start from the premise

that when Congress creates a federal tort it adopts the

background of general tort law. See Burlington N. & S.

F. R. Co. v. United States, 556 U. S. ___, ___ (2009) (slip

op., at 13–14); Safeco Ins. Co. of America v. Burr, 551 U. S.

47, 68–69 (2007); Burlington Industries, Inc. v. Ellerth,

524 U. S. 742, 764 (1998). Intentional torts such as this,

“as distinguished from negligent or reckless torts, . . .

generally require that the actor intend ‘the consequences’

of an act,’ not simply ‘the act itself.’ ” Kawaauhau v. Gei

ger, 523 U. S. 57, 61–62 (1998).

Staub contends that the fact that an unfavorable entry

on the plaintiff’s personnel record was caused to be put

there, with discriminatory animus, by Mulally and Koren

chuk, suffices to establish the tort, even if Mulally and

Korenchuk did not intend to cause his dismissal. But

discrimination was no part of Buck’s reason for the dis

6 STAUB v. PROCTOR HOSPITAL

Opinion of the Court

missal; and while Korenchuk and Mulally acted with

discriminatory animus, the act they committed—the mere

making of the reports—was not a denial of “initial em

ployment, reemployment, retention in employment, pro

motion, or any benefit of employment,” as liability under

USERRA requires. If dismissal was not the object of

Mulally’s and Korenchuk’s reports, it may have been

their result, or even their foreseeable consequence, but

that is not enough to render Mulally or Korenchuk

responsible.

Here, however, Staub is seeking to hold liable not Mu

lally and Korenchuk, but their employer. Perhaps, there

fore, the discriminatory motive of one of the employer’s

agents (Mulally or Korenchuk) can be aggregated with the

act of another agent (Buck) to impose liability on Proctor.

Again we consult general principles of law, agency law,

which form the background against which federal tort

laws are enacted. See Meyer v. Holley, 537 U. S. 280, 285

(2003); Burlington, supra, at 754–755. Here, however, the

answer is not so clear. The Restatement of Agency sug

gests that the malicious mental state of one agent cannot

generally be combined with the harmful action of another

agent to hold the principal liable for a tort that requires

both. See Restatement (Second) Agency §275, Illustration

4 (1958). Some of the cases involving federal torts apply

that rule. See United States v. Science Applications Int’l

Corp., 626 F. 3d 1257, 1273–1276 (CADC 2010); Chaney v.

Dreyfus Service Corp., 595 F. 3d 219, 241 (CA5 2010);

United States v. Philip Morris USA Inc., 566 F. 3d 1095,

1122 (CADC 2009). But another case involving a federal

tort, and one involving a federal crime, hold to the con

trary. See United States ex rel. Harrison v. Westinghouse

Savannah River Co., 352 F. 3d 908, 918–919 (CA4 2003);

United States v. Bank of New England, N. A., 821 F. 2d

844, 856 (CA1 1987). Ultimately, we think it unnecessary

in this case to decide what the background rule of agency

Cite as: 562 U. S. ____ (2011) 7

Opinion of the Court

law may be, since the former line of authority is suggested

by the governing text, which requires that discrimination

be “a motivating factor” in the adverse action. When a

decision to fire is made with no unlawful animus on the

part of the firing agent, but partly on the basis of a report

prompted (unbeknownst to that agent) by discrimination,

discrimination might perhaps be called a “factor” or a

“causal factor” in the decision; but it seems to us a consid

erable stretch to call it “a motivating factor.”

Proctor, on the other hand, contends that the employer

is not liable unless the de facto decisionmaker (the techni

cal decisionmaker or the agent for whom he is the “cat’s

paw”) is motivated by discriminatory animus. This avoids

the aggregation of animus and adverse action, but it

seems to us not the only application of general tort law

that can do so. Animus and responsibility for the adverse

action can both be attributed to the earlier agent (here,

Staub’s supervisors) if the adverse action is the intended

consequence of that agent’s discriminatory conduct. So

long as the agent intends, for discriminatory reasons, that

the adverse action occur, he has the scienter required to be

liable under USERRA. And it is axiomatic under tort law

that the exercise of judgment by the decisionmaker does

not prevent the earlier agent’s action (and hence the ear

lier agent’s discriminatory animus) from being the proxi

mate cause of the harm. Proximate cause requires only

“some direct relation between the injury asserted and the

injurious conduct alleged,” and excludes only those “link[s]

that are too remote, purely contingent, or indirect.” Hemi

Group, LLC v. City of New York, 559 U. S. 1, ___ (2010)

(slip op., at 9) (internal quotation marks omitted).2 We do

——————

2 Under the traditional doctrine of proximate cause, a tortfeasor is

sometimes, but not always, liable when he intends to cause an adverse

action and a different adverse action results. See Restatement (Second)

Torts §§435, 435B and Comment a (1963 and 1964). That issue is not

presented in this case since the record contains no evidence that Mu

8 STAUB v. PROCTOR HOSPITAL

Opinion of the Court

not think that the ultimate decisionmaker’s exercise of

judgment automatically renders the link to the supervi

sor’s bias “remote” or “purely contingent.” The decision

maker’s exercise of judgment is also a proximate cause of

the employment decision, but it is common for injuries to

have multiple proximate causes. See Sosa v. Alvarez-

Machain, 542 U. S. 692, 704 (2004). Nor can the ultimate

decisionmaker’s judgment be deemed a superseding cause

of the harm. A cause can be thought “superseding” only if

it is a “cause of independent origin that was not foresee

able.” Exxon Co., U. S. A. v. Sofec, Inc., 517 U. S. 830, 837

(1996) (internal quotation marks omitted).

Moreover, the approach urged upon us by Proctor gives

an unlikely meaning to a provision designed to prevent

employer discrimination. An employer’s authority to

reward, punish, or dismiss is often allocated among multi

ple agents. The one who makes the ultimate decision does

so on the basis of performance assessments by other su

pervisors. Proctor’s view would have the improbable

consequence that if an employer isolates a personnel

official from an employee’s supervisors, vests the decision

to take adverse employment actions in that official, and

asks that official to review the employee’s personnel file

before taking the adverse action, then the employer will be

effectively shielded from discriminatory acts and recom

mendations of supervisors that were designed and in

tended to produce the adverse action. That seems to us an

implausible meaning of the text, and one that is not com

pelled by its words.

Proctor suggests that even if the decisionmaker’s mere

exercise of independent judgment does not suffice to ne

gate the effect of the prior discrimination, at least the

decisionmaker’s independent investigation (and rejection)

——————

lally or Korenchuk intended any particular adverse action other than

Staub’s termination.

Cite as: 562 U. S. ____ (2011) 9

Opinion of the Court

of the employee’s allegations of discriminatory animus

ought to do so. We decline to adopt such a hard-and-fast

rule. As we have already acknowledged, the requirement

that the biased supervisor’s action be a causal factor of the

ultimate employment action incorporates the traditional

tort-law concept of proximate cause. See, e.g., Anza v.

Ideal Steel Supply Corp., 547 U. S. 451, 457–458 (2006);

Sosa, supra, at 703. Thus, if the employer’s investigation

results in an adverse action for reasons unrelated to the

supervisor’s original biased action (by the terms of

USERRA it is the employer’s burden to establish that),

then the employer will not be liable. But the supervisor’s

biased report may remain a causal factor if the independ

ent investigation takes it into account without determin

ing that the adverse action was, apart from the supervi

sor’s recommendation, entirely justified. We are aware of

no principle in tort or agency law under which an em

ployer’s mere conduct of an independent investigation has

a claim-preclusive effect. Nor do we think the independ

ent investigation somehow relieves the employer of “fault.”

The employer is at fault because one of its agents commit

ted an action based on discriminatory animus that was

intended to cause, and did in fact cause, an adverse em

ployment decision.

JUSTICE ALITO claims that our failure to adopt a rule

immunizing an employer who performs an independent

investigation reflects a “stray[ing] from the statutory

text.” Post, at 2 (opinion concurring in judgment). We do

not understand this accusation. Since a supervisor is an

agent of the employer, when he causes an adverse em

ployment action the employer causes it; and when dis

crimination is a motivating factor in his doing so, it is a

“motivating factor in the employer’s action,” precisely as

the text requires. JUSTICE ALITO suggests that the em

ployer should be held liable only when it “should be re

garded as having delegated part of the decisionmaking

10 STAUB v. PROCTOR HOSPITAL

Opinion of the Court

power” to the biased supervisor. Ibid. But if the inde

pendent investigation relies on facts provided by the bi

ased supervisor—as is necessary in any case of cat’s-paw

liability—then the employer (either directly or through

the ultimate decisionmaker) will have effectively delegated

the factfinding portion of the investigation to the biased

supervisor. Contrary to JUSTICE ALITO’s suggestion, the

biased supervisor is not analogous to a witness at a bench

trial. The mere witness is not an actor in the events that

are the subject of the trial. The biased supervisor and the

ultimate decisionmaker, however, acted as agents of the

entity that the plaintiff seeks to hold liable; each of them

possessed supervisory authority delegated by their em

ployer and exercised it in the interest of their employer.

In sum, we do not see how “fidelity to the statutory text,”

ibid., requires the adoption of an independent

investigation defense that appears nowhere in the text.

And we find both speculative and implausible JUSTICE

ALITO’s prediction that our Nation’s employers will sys

tematically disfavor members of the armed services in

their hiring decisions to avoid the possibility of cat’s-paw

liability, a policy that would violate USERRA in any

event.

We therefore hold that if a supervisor performs an act

motivated by antimilitary animus that is intended by the

supervisor to cause an adverse employment action,3 and if

that act is a proximate cause of the ultimate employment

action, then the employer is liable under USERRA. 4

——————

3 Under traditional tort law, “ ‘intent’ . . . denote[s] that the actor

desires to cause consequences of his act, or that he believes that the

consequences are substantially certain to result from it.” Id., §8A.

4 Needless to say, the employer would be liable only when the super

visor acts within the scope of his employment, or when the supervisor

acts outside the scope of his employment and liability would be imputed

to the employer under traditional agency principles. See Burlington

Industries, Inc. v. Ellerth, 524 U. S. 742, 758 (1998). We express no

Cite as: 562 U. S. ____ (2011)

11

Opinion of the Court

III

Applying our analysis to the facts of this case, it is clear

that the Seventh Circuit’s judgment must be reversed.

Both Mulally and Korenchuk were acting within the scope

of their employment when they took the actions that

allegedly caused Buck to fire Staub. A “reprimand . . . for

workplace failings” constitutes conduct within the scope of

an agent’s employment. Faragher v. Boca Raton, 524

U. S. 775, 798–799 (1998). As the Seventh Circuit recog

nized, there was evidence that Mulally’s and Korenchuk’s

actions were motivated by hostility toward Staub’s mili

tary obligations. There was also evidence that Mulally’s

and Korenchuk’s actions were causal factors underlying

Buck’s decision to fire Staub. Buck’s termination notice

expressly stated that Staub was terminated because he

had “ignored” the directive in the Corrective Action. Fi

nally, there was evidence that both Mulally and Koren

chuk had the specific intent to cause Staub to be termi

nated. Mulally stated she was trying to “ ‘get rid of ’ ”

Staub, and Korenchuk was aware that Mulally was “ ‘out

to get’ ” Staub. Moreover, Korenchuk informed Buck,

Proctor’s personnel officer responsible for terminating

employees, of Staub’s alleged noncompliance with Mu

lally’s Corrective Action, and Buck fired Staub immedi

ately thereafter; a reasonable jury could infer that Koren

chuk intended that Staub be fired. The Seventh Circuit

therefore erred in holding that Proctor was entitled to

judgment as a matter of law.

It is less clear whether the jury’s verdict should be

reinstated or whether Proctor is entitled to a new trial.

——————

view as to whether the employer would be liable if a co-worker, rather

than a supervisor, committed a discriminatory act that influenced the

ultimate employment decision. We also observe that Staub took advan

tage of Proctor’s grievance process, and we express no view as to

whether Proctor would have an affirmative defense if he did not. Cf.

Pennsylvania State Police v. Suders, 542 U. S. 129, 148–149 (2004).

12 STAUB v. PROCTOR HOSPITAL

Opinion of the Court

The jury instruction did not hew precisely to the rule we

adopt today; it required only that the jury find that “mili

tary status was a motivating factor in [Proctor’s] decision

to discharge him.” App. 68a. Whether the variance be

tween the instruction and our rule was harmless error or

should mandate a new trial is a matter the Seventh Cir

cuit may consider in the first instance.

* * *

The judgment of the Seventh Circuit is reversed, and

the case is remanded for further proceedings consistent

with this opinion.

It is so ordered.

JUSTICE KAGAN took no part in the consideration or

decision of this case.

Cite as: 562 U. S. ____ (2011) 1

ALITO, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 09–400

_________________

VINCENT E. STAUB, PETITIONER v. PROCTOR

HOSPITAL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[March 1, 2011]

JUSTICE ALITO, with whom JUSTICE THOMAS joins,

concurring in the judgment.

I agree with the Court that the decision of the Court of

Appeals must be reversed, but I would do so based on the

statutory text, rather than principles of agency and tort

law that do not speak directly to the question presented

here.

The relevant statutory provision states:

“An employer shall be considered to have engaged in

[prohibited discrimination against a member of one of

the uniformed services] if the person’s membership

. . . is a motivating factor in the employer’s action,

unless the employer can prove that the action would

have been taken in the absence of such membership

. . . .” 38 U. S. C. §4311(c)(1) (emphasis added).

For present purposes, the key phrase is “a motivating

factor in the employer’s action.” A “motivating factor” is a

factor that “provide[s] . . . a motive.” See Webster’s Third

New International Dictionary 1475 (1971) (defining “moti

vate”). A “motive,” in turn, is “something within a person

. . . that incites him to action.” Ibid. Thus, in order for

discrimination to be “a motivating factor in [an] em

ployer’s action,” discrimination must be present “within,”

i.e., in the mind of, the person who makes the decision to

2 STAUB v. PROCTOR HOSPITAL

ALITO, J., concurring in judgment

take that action. And “the employer’s action” here is the

decision to fire petitioner. Thus, petitioner, in order to

recover, was required to show that discrimination moti

vated that action.

The Court, however, strays from the statutory text by

holding that it is enough for an employee to show that

discrimination motivated some other action and that this

latter action, in turn, caused the termination decision.

That is simply not what the statute says.

The Court fears this interpretation of the statute would

allow an employer to escape liability by assigning formal

decisionmaking authority to an officer who may merely

rubberstamp the recommendation of others who are moti

vated by antimilitary animus. See ante, at 8. But fidelity

to the statutory text does not lead to this result. Where

the officer with formal decisionmaking authority merely

rubberstamps the recommendation of others, the em

ployer, I would hold, has actually delegated the decision

making responsibility to those whose recommendation is

rubberstamped. I would reach a similar conclusion where

the officer with the formal decisionmaking authority is put

on notice that adverse information about an employee may

be based on antimilitary animus but does not undertake

an independent investigation of the matter. In that situa

tion, too, the employer should be regarded as having dele

gated part of the decisionmaking power to those who are

responsible for memorializing and transmitting the ad

verse information that is accepted without examination.

The same cannot be said, however, where the officer with

formal decisionmaking responsibility, having been alerted

to the possibility that adverse information may be tainted,

undertakes a reasonable investigation and finds insuffi

cient evidence to dispute the accuracy of that information.

Nor can the employer be said to have “effectively dele

gated” decisionmaking authority any time a decision

maker “relies on facts provided by [a] biased supervisor.”

Cite as: 562 U. S. ____ (2011) 3

ALITO, J., concurring in judgment

See ante, at 10. A decisionmaker who credits information

provided by another person—for example, a judge who

credits the testimony of a witness in a bench trial—does

not thereby delegate a portion of the decisionmaking

authority to the person who provides the information.

This interpretation of §4311(c)(1) heeds the statutory

text and would provide fair treatment for both employers

and employees who are members of the uniformed ser

vices. It would also encourage employers to establish

internal grievance procedures similar to those that have

been adopted following our decisions in Burlington Indus

tries, Inc. v. Ellerth, 524 U. S. 742 (1998), and Faragher v.

Boca Raton, 524 U. S. 775 (1998). Such procedures would

often provide relief for employees without the need for

litigation, and they would provide protection for employers

who proceed in good faith.

The Court’s contrary approach, by contrast, is almost

certain to lead to confusion and is likely to produce results

that will not serve the interests of either employers or

employees who are members of the uniformed services.

The Court’s holding will impose liability unfairly on em

ployers who make every effort to comply with the law, and

it may have the perverse effect of discouraging employers

from hiring applicants who are members of the Reserves

or the National Guard. In addition, by leaving open the

possibility that an employer may be held liable if it inno

cently takes into account adverse information provided,

not by a supervisor, but by a low-level employee, see ante,

at 10–11, n. 4, the Court increases the confusion that its

decision is likely to produce.

For these reasons, I cannot accept the Court’s interpre

tation of §4311(c)(1), but I nevertheless agree that the

decision below must be reversed. There was sufficient

evidence to support a finding that at least Korenchuk was

actually delegated part of the decisionmaking authority in

this case. Korenchuk was the head of the unit in which

Staub worked and it was Korenchuk who told Buck that

4 STAUB v. PROCTOR HOSPITAL

ALITO, J., concurring in judgment

Staub left his work area without informing his supervi

sors. There was evidence that Korenchuk’s accusation

formed the basis of Buck’s decision to fire Staub, and that

Buck simply accepted the accusation at face value. Ac

cording to one version of events, Buck fired Staub immedi

ately after Korenchuk informed her of Staub’s alleged

misconduct, and she cited only that misconduct in the

termination notice provided to Staub. See 5 Record 128–

129, 267–268, 380–386; App. 74a. All of this is enough to

show that Korenchuk was in effect delegated some of

Buck’s termination authority. There was also evidence

from which it may be inferred that displeasure with

Staub’s Reserve responsibilities was a motivating factor in

Korenchuk’s actions.*

——————

* See 5 Record 343–344 (testimony that Korenchuk made negative

remarks about Staub’s Reserve duties before firing him in 1998); id., at

124–126, 352 (testimony that Korenchuk informed Staub of the revenue

lost while he was on Active Duty in 2003, that Korenchuk was aware in

January 2004 that Staub might be called to Active Duty again, and that

“[b]udget was a big issue with [Korenchuk]”).