Claudia Dwyer v. Ethan Allen Retail, Inc.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

APRIL 15, 2009

No. 08-10005 THOMAS K. KAHN

Non-Argument Calendar CLERK

________________________

D. C. Docket No. 07-80495-CV-DTKH

CLAUDIA DWYER,

an individual,

Plaintiff-Appellant,

versus

ETHAN ALLEN RETAIL, INC.,

a Delaware Corporation,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(April 15, 2009)

Before EDMONDSON, Chief Judge, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

Claudia Dwyer appeals the grant of summary judgment to her former

employer, Ethan Allen Retail, Inc., in Dwyer’s suit claiming violations of the

Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12112. No reversible error

has been shown; we affirm.

Dwyer, who was born without a left hand, was employed as a design

consultant with Ethan Allen from 1991 until her termination in June 2006. The

information which led to Dwyer’s termination surfaced when David Burton,

Dwyer’s immediate supervisor, was visiting a customer in her home about Ethan

Allen products. This customer previously had ordered a sofa and love seat, using

Dwyer as the design consultant. Burton discovered that, when the customer was

unhappy with the cushions, Dwyer had ordered custom cushions from an outside

workroom. From the invoice for the custom cushions that the customer gave

Burton, it appeared to Burton that Dwyer had (1) obtained a price quotation from

the outside workroom, (2) advised the customer to make payment to the outside

workroom, (3) wrote the invoice on an Ethan Allen invoice form, and (4) collected

payment for the custom order from the customer on behalf of the outside

workroom.

Burton contacted his superior, Lisa Greenberg, about a potential violation of

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Ethan Allen’s conflict-of-interest policy (the “Policy”)1 and provided Greenberg

with a copy of the suspect invoice. Greenberg reviewed the invoice, confirmed that

Dwyer had received a copy of the company’s conflict of interest policy, and

interviewed Dwyer, who admitted to the conduct resulting in the order for the

custom-made cushions. After conferring with a human resources manager about

Dwyer’s acts, Greenberg decided to terminate Dwyer’s employment for violating

the Policy.

In her ADA complaint, Dwyer argued that her disability was a motivating

factor in Ethan Allen’s decision to terminate her. She alleged that Burton, upon

becoming her supervisor, subjected her to disparate treatment and sought to have

her terminated because of her disability. In responding to Ethan Allen’s summary

judgment motion, Dwyer contended that Burton used Greenberg as the “cat’s paw”

through which he carried out his discriminatory intent.

The district court determined that Dwyer was a qualified person with a

disability under the ADA and that Burton harbored a discriminatory animus

towards Dwyer. Next, the court determined that, by harboring this animus and

contacting Greenberg about the alleged Policy violation, Burton brought about

1

The Policy prohibits an employee from “engaging in any activity, practice, or conduct

which conflicts with, or appears to conflict with, the interests of Ethan Allen, its customers, or its

suppliers.” This prohibition includes “accepting orders for non-Ethan Allen supplied product

from Ethan Allen retail customers.”

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Dwyer’s termination; and, thus, Dwyer made a prima facie discrimination case

under a cat’s paw theory. But the court determined that Ethan Allen had a

legitimate non-discriminatory reason2 for terminating Dwyer -- the Policy

violation, which Greenberg had independently investigated -- and Dwyer had not

shown that this reason was pretextual.

On appeal, Dwyer argues that (1) Burton manipulated the decisionmaking

process by withholding material information about the date of the invoice and the

nature of the transaction, and that (2) Greenberg’s investigation was inadequate.

We review a district court’s grant of summary judgment de novo; we view the

evidence and all reasonable factual inferences in the light most favorable to the

nonmoving party. Maniccia v. Brown, 171 F.3d 1364, 1367 (11th Cir. 1999).

To establish a prima facie case of disability discrimination under the ADA,

Dwyer had to show, in relevant part, that Ethan Allen unlawfully discriminated

against her because of her disability. Reed v. Heil Co., 206 F.3d 1055, 1061 (11th

Cir. 2000).3 Dwyer asserted a cat’s paw theory of causation. Under this theory, a

non-decisionmaking employee’s discriminatory animus may be imputed to a

2

Because this case is a circumstantial evidence case, the burden-shifting framework

established in McDonnell Douglas Corp. v. Green, 93 S.Ct. 1817 (1973), applies.

3

The first two parts of a prima facie ADA discrimination case -- that Dwyer has a

disability and that she is a qualified person -- are not in dispute. See id.

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neutral decisionmaker when the decisionmaker has not independently investigated

allegations of misconduct. Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236,

1249 (11th Cir. 1998). “In such a case, the recommender is using the

decisionmaker as a mere conduit, or ‘cat’s paw’ to give effect to the

recommender’s discriminatory animus.” Stimpson v. City of Tuscaloosa, 186 F.3d

1328, 1332 (11th Cir. 1999).

We conclude that summary judgment was appropriate here because Dwyer

did not make a prima facie case of discrimination under a cat’s paw theory. Even

assuming that Burton harbored a discriminatory animus towards Dwyer, record

evidence showed that Greenberg independently investigated Dwyer’s conduct and

that Greenberg came to her own conclusion that a Policy violation had occurred.4

Greenberg reviewed the invoice Burton gave to her and determined that there had

been an order for cushions, a price, and a receipt for money paid on Ethan Allen

letterhead. Greenberg also confirmed that Dwyer had received a copy of the Policy

and interviewed her about her acts. Burton’s deposition testimony also show the

4

The district court concluded that Dwyer made a prima facie case based on Burton’s

alleged discriminatory animus towards Dwyer. But a prima facie case under a cat’s paw theory

also requires lack of an independent investigation. See Llampallas, 163 F.3d at 1249. The

district court’s ultimate conclusion though, which focused on Greenberg’s independent

investigation, was correct.

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independent nature of Greenberg’s investigation: he stated that he made no

recommendation to Greenberg about the course of action to take on Dwyer and

simply provided Greenberg with the documentation he received from the customer.

See Pennington v. City of Huntsville, 261 F.3d 1262, 1270 (11th Cir. 2001) (where

a decisionmaker conducts her own evaluation and makes an independent decision,

her decision is “free of the taint of a biased subordinate employee”).

Taking these facts in the light most favorable to Dwyer, that Greenberg was

not acting as a mere conduit of Burton and that Dwyer was terminated because of

her Policy violation is clear. See Stimpson, 186 F.3d at 1331 (under cat’s paw

theory, plaintiff must “prove that the discriminatory animus behind the

recommendation, and not the underlying employee misconduct identified in the

recommendation, was an actual cause of the other party’s decision to terminate the

employee”). Dwyer’s challenge to the adequacy of Greenberg’s investigation is

unavailing. Because Dwyer admitted that she facilitated the order with the third-

party workroom, an extensive factual investigation was unnecessary. And the

information Dwyer complains of Burton withholding, including the date of the

invoice, are trivial details not important to deciding whether Dwyer, in fact,

violated the Policy.

Because we determine that Dwyer did not make a prima facie case of

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discrimination under a cat’s paw theory, summary judgment was appropriate; and

we affirm the district court.5

AFFIRMED.

5

Our conclusion that Dwyer did not make a prima facie case makes it unnecessary to

address whether Ethan Allen’s reason for terminating her was pretextual or whether the Policy

incorrectly was applied to Dwyer. Still, we agree with the district court’s assessment that the

reason was not pretextual. Contrary to Dwyer’s assertion, her acts amounted to more than a

“mere referral;” she facilitated the order to the outside workroom, clearly a Policy violation. And

Ethan Allen terminated a non-disabled employee for a Policy violation nearly identical to

Dwyer’s.

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