        15-3239-cv
        Vasquez v. Empress Ambulance Serv., Inc.
 1
 2                            UNITED STATES COURT OF APPEALS
 3                                FOR THE SECOND CIRCUIT
 4
 5                                       August Term, 2015
 6
 7                  (Argued: April 27, 2016                Decided: August 29, 2016)
 8
 9                                      Docket No. 15-3239-cv
10
11
12                                      ANDREA VASQUEZ,
13
14                                        Plaintiff-Appellant,
15
16                                                – v. –
17
18                            EMPRESS AMBULANCE SERVICE, INC.,
19
20                                        Defendant-Appellee,
21
22                                  TYRELL GRAY, individually,
23
24                                            Defendant.
25
26
27
28   Before: WALKER, CALABRESI, and HALL, Circuit Judges.
29
30           Plaintiff Andrea Vasquez, an emergency medical technician working for Empress
31   Ambulance Service, Inc. (“Empress”), was subjected to unwanted sexual overtures by
32   another Empress employee while on the job. Vasquez promptly complained of her co-
33   worker’s conduct and was assured by supervisors that her complaint would be
34   investigated. That investigation, however, consisted of Empress crediting false documents
35   manufactured by Vasquez’s co-worker that purported to show Vasquez’s eager assent to a
36   sexual relationship and refusing to consider further contradictory evidence. In reliance on
37   these documents, Empress fired Vasquez. Vasquez subsequently filed suit in the Southern
38   District of New York, alleging that Empress had retaliated against her in violation of Title
39   VII and New York State Human Rights Law. The District Court (Buchwald, J.) dismissed
40   the case, holding that the retaliatory intent of Vasquez’s co-worker, a low-level employee,
41   could not be imputed to Empress and that Empress consequently could not have engaged
42   in retaliation. We conclude, however, that agency principles permit the retaliatory intent of
43   Vasquez’s co-worker to be imputed, as a result of Empress’s alleged negligence, to Empress.


                                              1
 1   Accordingly, we vacate the judgment of the district court and remand for further
 2   proceedings.
 3
 4                                      CASEY WOLNOWSKI, Phillips & Associates, New
 5                                      York, NY, for Plaintiff-Appellant
 6
 7                                      DEBRA LYNNE WABNIK, Stagg, Terenzi, Confusione
 8                                      & Wabnik, LLP, Garden City, NY, for Defendant-Appellee
 9
10
11   CALABRESI, Circuit Judge:

12           In the space of twenty-four hours, Andrea Vasquez faced unwelcome sexual

13   advances in the workplace, complained about that conduct to her employer, and lost her

14   job.   After receiving unsolicited sexual photographs from a co-worker one night shift,

15   Vasquez promptly informed her supervisor and filed a formal complaint of sexual

16   harassment, which her employer promised to investigate that same morning. Within a few

17   hours, however, Vasquez’s co-worker had discovered her complaint and had provided the

18   employer with false documents purporting to show Vasquez’s consent to and solicitation of

19   a sexual relationship. In reliance on those documents, and notwithstanding Vasquez’s

20   offers to produce evidence in refutation, Vasquez’s employer immediately fired her on the

21   ground that she had engaged in sexual harassment. Vasquez consequently brought suit

22   under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and

23   New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”), alleging that

24   she was wrongfully terminated in retaliation for complaining of sexual harassment. The

25   district court dismissed Vasquez’s claims, holding that Vasquez’s employer could not have

26   engaged in retaliation because it could not be held responsible for the retaliatory animus of

27   Vasquez’s co-worker, a low-level employee with no decisionmaking authority. We hold,

28   however, that an employee’s retaliatory intent may be imputed to an employer where, as


                                                  2
 1   alleged here, the employer’s own negligence gives effect to the employee’s retaliatory

 2   animus and causes the victim to suffer an adverse employment decision. As a result, we

 3   vacate the court’s decision and remand for further proceedings.

 4                                                                  BACKGROUND1

 5                 In July 2013, Andrea Vasquez was hired by Empress Ambulance Service, Inc.

 6   (“Empress”) to work as an emergency medical technician on an ambulance crew.                          In

 7   October of that year, Vasquez met Tyrell Gray, who worked for Empress as a dispatcher

 8   and who almost immediately began making romantic overtures to Vasquez. Over the

 9   course of their acquaintance, Gray “constantly asked [Vasquez] out on dates,” “attempted

10   to flirt with her,” and “repeatedly . . . put his arm around her or touched her shoulders,”

11   causing Vasquez “to be extremely uncomfortable” as she tried to reject his advances. App’x

12   9.

13                 This conduct came to a head in January 2014. On January 8, while Vasquez and

14   Gray both worked in Empress’s office, Gray approached Vasquez, placed his arm around

15   her, and asked “When are you going to let me take you out?” App’x 9. When Vasquez

16   replied that she had a boyfriend and was not interested in a romantic relationship, Gray

17   insisted that “I bet I can make you leave your man” and promised to “send . . . something

18   between you and me.” App’x 9. Around midnight that night, while out on shift, Vasquez

19   received a picture message from Gray: a photograph of his erect penis, captioned “Wat u

20   think.” App’x 9-10. Vasquez did not respond to this message or to a follow-up text

21   message from Gray as she continued her work. When Vasquez returned to the office at the

                                                                 
     1Because this appeal involves review at the motion to dismiss stage, we base this factual background on
     the allegations contained in Vasquez’s complaint, which we assume to be true. See Littlejohn v. City of
     New York, 795 F.3d 297, 303 n.1 (2d Cir. 2015).


                                                                         3
 1   conclusion of her shift, however, she was “extremely embarrassed, distraught, and crying.”

 2   App’x 10. And she promptly informed an Empress field supervisor about Gray’s conduct.

 3   Promising that “[w]e’re going to deal with this,” the supervisor walked Vasquez to a

 4   computer in Empress’s office and asked that she compose and send a formal complaint

 5   right away, which Vasquez began to do. App’x 10.

 6          As Vasquez was writing her complaint, however, Gray entered the room “to see a

 7   visually distressed [Vasquez] crying and typing at the computer.”       App’x 10.    Gray,

 8   “noticeably nervous,” asked Vasquez “if she was ok” and, after Vasquez declined to engage

 9   his attempts at conversation, stated, “You’re reporting me, right?” App’x 10. Gray then

10   went out of the room and ran into another emergency medical technician, Almairis Zapata,

11   with whom he began discussing Vasquez’s likely complaint. He asked Zapata, as “a favor,”

12   because he was “afraid he was going to lose his job,” to “lie for [him]” and tell their

13   supervisors that Vasquez and Gray had been in a romantic relationship.” App’x 11. Zapata

14   refused, and Gray left the building.

15          After Gray’s departure, Vasquez finished writing her complaint, in which she

16   explained that she felt “violated” and “disrespected” as a result of Gray’s behavior. She

17   then waited in Empress’s office until Sheri Baia, one of her supervisors, and Elizabeth

18   Shepard, a member of the human resources department, arrived to discuss what had

19   happened. The supervisors thanked Vasquez for “telling [her] story,” assured her that

20   “[w]e don’t tolerate this sort of behavior here,” and promised to “sort the situation out.”

21   App’x 12. To aid in their investigation, Vasquez offered to show the supervisors Gray’s

22   messages on her cell phone, but they rejected her offer. They then asked Vasquez whether




                                                 4
 1   she preferred to go home or to wait in the office while they investigated the incident that

 2   morning, and Vasquez elected to wait.

 3          Gray, meanwhile, had not finished seeking to undermine the accusations he

 4   anticipated from Vasquez. Rather, in the intervening hours, Gray “manipulated a text

 5   message conversation on his iPhone to make it appear as though a person with whom he

 6   had legitimately been engaging in consensually sexual text banter was [Vasquez].” App’x

 7   12. He then “took screen shots of portions of the conversation, printed them off,” and

 8   “presented it to the management” of Empress as evidence that he and Vasquez had been in

 9   a consensual sexual relationship. App’x 12.

10          By the time Vasquez met with a committee of her union representative, Empress’s

11   owner, and Shepard to discuss the incident later that morning, the committee had already

12   considered Gray’s documents and had concluded that Vasquez was “having an

13   inappropriate sexual relationship” with Gray. App’x 13. Shepard informed Vasquez that

14   Empress “kn[e]w the truth,” as they had spoken with Gray and had seen his “proof” of her

15   improper conduct by means of “pictures and text messages.” App’x 13. In particular,

16   Shepard reported that Gray had shown them “a racy self-taken photo” that Vasquez had

17   allegedly sent in response to Gray’s explicit picture message, which they considered “proof

18   that [Vasquez] had been sexually harassing [Gray].”      App’x 13.   Vasquez “adamantly

19   denied” Shepard’s allegations and asserted that Gray was lying, but Shepard insisted that

20   “the committee had all seen the photograph” and “kn[ew] it was [her in the photo].” App’x

21   13. She made this assertion even though, in fact, the photo depicted only “a small fraction

22   of a face” that could “by no means [be] concluded to be that of [Vasquez].” App’x 13.

23   When Vasquez asked to see the photograph, moreover, Shepard refused. Likewise, when


                                                   5
 1   Vasquez again offered again to show the committee her own cell phone, in an attempt to

 2   prove that no such messaging had occurred, the committee declined. They then fired

 3   Vasquez for engaging in sexual harassment.

 4                 Vasquez subsequently brought suit against Empress2 under Title VII and NYSHRL,

 5   claiming that Empress had wrongfully terminated her in retaliation for complaining of

 6   sexual harassment. Empress moved to dismiss Vasquez’s complaint for failure to state a

 7   claim under Fed. R. Civ. P. 12(b)(6) and the district court (Buchwald, J.) granted the motion,

 8   holding that Gray’s retaliatory intent could not be attributed to Empress and that, therefore,

 9   Empress could not have engaged in retaliation against Vasquez. Vasquez now appeals.

10                                                                  DISCUSSION

11                 We review de novo a district court’s grant of a motion to dismiss under Rule 12(b)(6),

12   accepting as true all factual allegations contained in the complaint and drawing all

13   inferences in the plaintiff’s favor. Littlejohn v. City of New York, 795 F.3d 297, 306 (2d Cir.

14   2015). “To survive a motion to dismiss, a complaint must contain sufficient factual matter,

15   accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556

16   U.S. 662, 678 (2009) (internal quotation marks omitted). In addition, “for a retaliation claim

17   to survive . . . a motion to dismiss, the plaintiff must plausibly allege that: (1) defendants

18   discriminated—or took an adverse employment action—against [her], (2) because [s]he has

19   opposed any unlawful employment practice.” Vega v. Hempstead Union Free Sch. Dist., 801

20   F.3d 72, 90 (2d Cir. 2015) (internal quotation marks omitted). Under the latter element, a




                                                                 
     2Vasquez also filed suit against Gray individually, but later consented to dismissal without prejudice of
     the claims against him, in response to an issue about service. App’x 41.


                                                                        6
 1   plaintiff must show a “retaliatory purpose” by “plausibly plead[ing] a connection between

 2   the [adverse] act and [the plaintiff’s] engagement in protected activity.” Id.3

 3          A. “Cat’s Paw” Liability

 4                 Vasquez seeks to recover against Empress under what has been termed “cat’s paw”

 5   liability. The phrase derives from an Aesop fable, later put into verse by Jean de La

 6   Fontaine, in which a wily monkey flatters a naïve cat into pulling roasting chestnuts out of a

 7   roaring fire for their mutual satisfaction; the monkey, however, “devour[s]. . . them fast,”

 8   leaving the cat “with a burnt paw and no chestnuts” for its trouble. “[I]njected into United

 9   States employment discrimination law by [Judge Richard] Posner in 1990,” Staub v. Proctor

10   Hosp., 562 U.S. 411, 415 n.1 (2011), the “cat’s paw” metaphor now “refers to a situation in

11   which an employee is fired or subjected to some other adverse employment action by a

12   supervisor who himself has no discriminatory motive, but who has been manipulated by a

13   subordinate who does have such a motive and intended to bring about the adverse

14   employment action,” Cook v. IPC Intern. Corp., 673 F.3d 625, 628 (7th Cir. 2012) (Posner, J.).

15   Because the supervisor, acting as agent of the employer, has permitted himself to be used

16   “as the conduit of [the subordinate’s] prejudice,” Shager v. Upjohn Co., 913 F.2d 398, 405 (7th

17   Cir. 1990), that prejudice may then be imputed to the employer and used to hold the

18   employer liable for employment discrimination. In other words, by merely effectuating or

19   “rubber-stamp[ing]” a discriminatory employee’s “unlawful design,” Nagle v. Marron, 663

20   F.3d 100, 117 (2d Cir. 2011), the employer plays the credulous cat to the malevolent monkey

21   and, in so doing, allows itself to get burned—i.e., successfully sued.

                                                                 
     3 Because “[t]he standards for evaluating . . . retaliation claims are identical under Title VII and the
     NYSHRL,” our analysis does not distinguish between Vasquez’s federal and state claims. Kelly v. Howard
     I. Shapiro & Assoc. Consulting Eng’rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013).


                                                                    7
 1                 “To date, our Circuit has neither accepted nor rejected the cat’s paw approach.”

 2   Nagle, 663 F.3d at 118; see also Wright v. City of Syracuse, 611 F. App’x 8, 11 n.2 (2d Cir. 2015).

 3   The Supreme Court, however, has approved its application under the Uniformed Services

 4   Employment and Reemployment Rights Act, a statute “very similar to Title VII,” Staub, 562

 5   U.S. at 417, and our sister circuits have overwhelmingly adopted the theory in Title VII

 6   retaliation cases. See, e.g., Zamora v. City of Houston, 798 F.3d 326, 332-33 (5th Cir. 2015);

 7   EEOC v. New Breed Logistics, 783 F.3d 1057, 1069-70 (6th Cir. 2015); Bennett v. Riceland Foods,

 8   Inc., 721 F.3d 546, 551-52 (8th Cir. 2013); Hicks v. Forest Preserve Dist. of Cook Cty., Ill., 677

 9   F.3d 781, 789-90 (7th Cir. 2012); McKenna v. City of Philadelphia, 649 F.3d 171, 180 (3d Cir.

10   2011).            Further, permitting “cat’s paw” recovery in retaliation cases accords with

11   longstanding precedent in our Court, in the employment-discrimination context, that “a

12   Title VII plaintiff is entitled to succeed, ‘even absent evidence of illegitimate bias on the part

13   of the ultimate decision maker, so long as the individual shown to have the impermissible

14   bias played a meaningful role in the [decisionmaking] process.’” Holcomb v. Iona Coll., 521

15   F.3d 130, 143 (2d Cir. 2008) (quoting Bickerstaff v. Vassar Coll., 196 F. 3d 435, 450 (2d Cir.

16   1999)). Such a role is surely played by an employee who “manipulates” an employer into

17   acting as mere “conduit” for his retaliatory intent.4 Accordingly, we now hold that the




                                                                 
     4We note that the parties do not dispute on appeal whether Vasquez has adequately pled Gray’s
     retaliatory intent. In any event, we conclude that Vasquez’s allegations are more than sufficient to meet
     her minimal burden plausibly to plead Gray’s retaliatory intent. To do so, she need only plausibly plead
     that: (1) Gray desired his actions to cause, or knew that his actions were substantially certain to result in,
     adverse employment action for Vasquez, see Staub, 562 U.S. at 422 n.3; and (2) he took those actions
     “because [s]he ha[d] made a charge” of sexual harassment, 42 U.S.C. § 2000e-3(a)—i.e., he would not have
     taken those actions if Vasquez had not filed a complaint with human resources, see Univ. of Texas Sw. Med.
     Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013) (holding that “but-for” causation is the proper standard for
     claims of retaliation under Title VII).


                                                                    8
 1   “cat’s paw” theory may be used to support recovery for claims of retaliation in violation of

 2   Title VII.

 3       B. Co-Workers and Cat’s Paw(s)

 4           The mere availability of “cat’s paw” liability in Title VII retaliation cases, however,

 5   does not resolve whether Empress may be held to the fire for its reliance on Gray’s

 6   retaliatory information. While the Supreme Court has approved holding an employer liable

 7   for the retaliatory intent of one of its “supervisors” under a “cat’s paw” theory, it

 8   specifically “express[ed] no view as to whether the employer would be liable if a co-worker,

 9   rather than a supervisor, committed a discriminatory act that influenced the ultimate

10   employment decision.” Staub, 562 U.S. at 422 n.4. We must therefore determine in the first

11   instance under what circumstances the “cat’s paw” approach will render an employer

12   responsible for the animus of a low-level employee who works alongside the victim.

13           To do so, “[w]e turn to general principles of agency law, for the term ‘employer’ is

14   defined under Title VII to include ‘agents’” and “Congress has directed federal courts to

15   interpret Title VII based on agency principles.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,

16   754 (1998); see also Staub, 562 U.S. at 418 (deriving cat’s paw liability from “general

17   principles of . . . agency law”). As set out by the Supreme Court in Ellerth, speaking in a

18   hostile work environment case, there are four circumstances in which “agency principles

19   impose liability on employers even where employees commit torts outside the scope of

20   employment,” and would not ordinarily be deemed “agents” of the employer:

21           (a) the master intended the conduct or the consequences, or
22           (b) the master was negligent or reckless, or
23           (c) the conduct violated a non-delegable duty of the master, or




                                                     9
 1                 (d) the servant purported to act or to speak on behalf of the principal where
 2                     there was reliance upon apparent authority, or he was aided in
 3                     accomplishing the tort by the existence of the agency relation.
 4
 5   Ellerth, 524 U.S. at 758 (quoting Restatement (Second) of Agency § 219(2) (1957)).

 6                 Significantly, in addressing employer culpability for employee misconduct, the

 7   Ellerth Court expressly noted that Section 219(2)(b) holds employers liable “when the

 8   [employee’s] tort is attributable to the employer’s own negligence. Thus, although a[n

 9   employee’s] sexual harassment is outside the scope of employment . . ., an employer can be

10   liable, nonetheless, where its own negligence is a cause of the harassment[, . . . i.e.,] if it

11   knew or should have known about the conduct and failed to stop it.” Id. at 758-59.5

12                 We see no reason why Ellerth, though written in the context of hostile work

13   environment, should not also be read to hold an employer liable under Title VII when,

14   through its own negligence, the employer gives effect to the retaliatory intent of one of its—

15   even low-level—employees.6                                     Not surprisingly, another circuit court has already

16   determined, in reliance on Ellerth, that a discriminatory termination claim can proceed
                                                                 
     5 We note that a new Restatement of Agency has been published since the Supreme Court decided Ellerth,

     which discusses employer liability for employee torts committed outside the scope of employment in a
     somewhat different way. See Restatement (Third) of Agency § 2.04. Because both parties rely on the
     language of the Second Restatement as embodied in Ellerth, however, we likewise use that Restatement’s
     formulation of agency principles to guide our analysis. In any event, the Third Restatement continues to
     hold employers responsible for harm caused by employees as a result of the employer’s negligence. See
     Restatement (Third) of Agency § 7.05; id. cmt. b.
     6We decline Empress’s invitation to find that Vasquez failed to raise this argument below and to deem
     the issue forfeited. At the district court, Vasquez argued that Gray’s retaliatory intent should be imputed
     to Empress under a “cat’s paw” theory and that the patent insufficiency of Empress’s investigation
     supported imposition of employer liability. See also Supp. App’x 114 (stating, at oral argument before the
     district court, that “the adequacy of the investigation is intertwined with the cat’s paw theory of liability,”
     as determined by “a negligen[ce] standard”). Although Vasquez failed to articulate precisely that the
     insufficiency of the investigation constituted negligence and that such negligence permitted imputation
     of Gray’s intent, we believe her arguments sufficed to raise the issue we address here. Regardless, “the
     rule against considering arguments raised for the first time on appeal is prudential, not jurisdictional, and
     we are free to exercise our discretion to consider waived arguments . . . where[, as here,] an argument
     presents a question of law and does not require additional fact finding.” United States v. Brunner, 726 F.3d
     299, 304 (2d Cir. 2013) (internal quotation marks and citations omitted).


                                                                             10
 1   against an employer who negligently permitted the plaintiff’s co-worker, a low-level

 2   employee harboring discriminatory intent, to induce the plaintiff’s termination.                            In

 3   Velazquez-Perez v. Developers Diversified Realty Corp., the First Circuit explained that the

 4   “conclusion that [a biased employee] was not a supervisor d[id] not necessarily absolve [the

 5   employer] of potential liability for [the plaintiff’s] discharge,” because there was “no basis”

 6   to believe that Ellerth’s acceptance of “employer liability premised on a finding of

 7   negligence” should be limited either to “cases of ‘hostile workplace’ discrimination” or to

 8   supervisory employees. 753 F.3d 265, 273 (1st Cir. 2014).7 It consequently held that “an

 9   employer can be held liable under Title VII if: the plaintiff’s co-worker makes statements

10   maligning the plaintiff, for discriminatory reasons and with the intent to cause the

11   plaintiff’s firing; the co-worker’s discriminatory acts proximately cause the plaintiff to be

12   fired; and the employer acts negligently by allowing the co-worker’s acts to achieve their

13   desired effect though it knows (or reasonably should know) of the discriminatory

14   motivation.” Id. at 274.

15                 We agree with the First Circuit, and therefore conclude that Vasquez can recover

16   against Empress if Empress was itself negligent in allowing Gray’s false allegations, and the

17   retaliatory intent behind them, to achieve their desired end. Assuming that Empress knew

18   or should have known of Gray’s retaliatory animus, the fact that “Gray was nothing more

19   than . . . a low-level employee with no supervisory or management authority,” Appellee’s

                                                                 
     7See also id. (“Suppose, for example, that a white employee repeatedly taunts a black co-worker with
     vicious racial epithets and also lodges a series of false complaints about the victim to their supervisor in a
     racially motivated attempt to have the victim fired. Certainly the employer could be held liable for
     negligently permitting the taunting. So, too, the employer should be liable if it fires the victim based on
     complaints that it knew (or reasonably should have known) were the product of discriminatory animus.
     In either situation, the same elements are present: an act of discrimination is allowed to cause harm by an
     employer that knows or reasonably should know of the discrimination.”)


                                                                    11
 1   Br. 18, cannot shield Empress from answering for Gray’s conduct because Empress’s own

 2   negligence provides an independent basis, under Ellerth and agency law, to treat Gray as

 3   Empress’s agent and hold Empress accountable for his unlawful intent. Once deemed

 4   Empress’s agent, Gray stands in the same shoes as Staub’s “supervisor,” and is equally able

 5   to play the monkey to Empress’s cat. See Staub, 562 U.S. at 421 (“The employer is at fault [in

 6   a cat’s paw case] because one of its agents committed an action based on discriminatory

 7   animus that was intended to cause, and did in fact cause, an adverse employment

 8   decision.”) (emphasis added).

 9          Such a negligence-based approach to “cat’s paw” liability, moreover, fully comports

10   with established Title VII caselaw in our Circuit requiring that a biased non-decisionmaker

11   play a “meaningful role” in an adverse employment decision for the unbiased

12   decisionmaker to be culpable. See Bickerstaff, 196 F. 3d at 450 (“We recognize that the

13   impermissible bias of a single individual at any stage . . . may taint the ultimate

14   employment decision in violation of Title VII.       This is true even absent evidence of

15   illegitimate bias on the part of the ultimate decision maker, so long as the individual shown

16   to have the impermissible bias played a meaningful role in the [decisionmaking] process.”).

17   Empress’s alleged negligence—in crediting Gray’s accusations to the exclusion of all other

18   evidence, and specifically declining to examine contrary evidence tendered by Vasquez,

19   when it knew or, with reasonable investigation, should have known of Gray’s retaliatory

20   animus—caused Gray’s accusations to form the sole basis for Empress’s decision to

21   terminate Vasquez.      Thus, as a result of Empress’s negligence, Gray achieved a

22   “meaningful,” and indeed decisive, role in Vasquez’s termination. Put differently, while

23   Gray might, on other facts, have played no greater part than that of a mere “informant” or


                                                  12
 1   “witness at a bench trial,” Vasquez v. Empress Ambulance Serv., Inc., 14 Civ. 8387, 2015 WL

 2   5037055, at *6 (S.D.N.Y. Aug. 26, 2015) (quoting Staub, 562 U.S. at 421), who simply offered

 3   information for the decisionmaker’s examination, on the facts before us, viewed in the light

 4   most favorable to Vasquez, Gray became the entire case against Vasquez when Empress

 5   negligently chose to credit his, and only his, account.

 6          We emphasize that such an approach should not be construed as holding an

 7   employer “liable simply because it acts on information provided by a biased co-worker.”

 8   Id. As we have long held, when considering the legitimacy of an employer’s reason for an

 9   employment action, we look to “what ‘motivated’ the employer” rather than to “the truth of

10   the allegations against [the] plaintiff” on which it relies. McPherson v. N.Y.C. Dep’t of Educ.,

11   457 F.3d 211, 216 (2d Cir. 2006); see also Jones, 796 F.3d at 330 (“[S]howing that an employer

12   incorrectly found an employee guilty of misconduct is insufficient to prove retaliation . . .

13   .”). Thus, an employer who, non-negligently and in good faith, relies on a false and malign

14   report of an employee who acted out of unlawful animus cannot, under this “cat’s paw”

15   theory, be held accountable for or said to have been “motivated” by the employee’s animus.

16   And, of course, an employer who negligently relies on a low-level employee’s false

17   accusations in making an employment decision will not be liable under Title VII unless

18   those false accusations themselves were the product of discriminatory or retaliatory intent

19   (although the employer may yet be liable for simple negligence under state law).

20          Only when an employer in effect adopts an employee’s unlawful animus by acting

21   negligently with respect to the information provided by the employee, and thereby affords

22   that biased employee an outsize role in its own employment decision, can the employee’s

23   motivation be imputed to the employer and used to support a claim under Title VII. Put


                                                   13
 1   simply, an employer can still “just get it wrong” without incurring liability under Title VII,

 2   Supp. App’x 114, but it cannot “get it wrong” without recourse if in doing so it negligently

 3   allows itself to be used as conduit for even a low-level employee’s discriminatory or

 4   retaliatory prejudice.

 5          Having determined that Vasquez can recover against Empress if Empress

 6   negligently gave effect to Gray’s retaliatory animus, we need now only decide whether

 7   Vasquez has sufficiently pled that Empress acted negligently in its treatment of Gray’s and

 8   Vasquez’s accusations.    Although Vasquez does not use the term “negligence” in her

 9   complaint, we conclude that she has pled facts from which a reasonable person could infer

10   that Empress knew or should have known that Gray’s accusations were the product of

11   retaliatory intent and thus should not have been trusted. First, the fact that Gray had just

12   learned that he had been accused by Vasquez of sexual harassment provided Gray with an

13   obvious reason to lie and paint Vasquez as the perpetrator rather than the victim. With

14   Gray more closely resembling a vengeful suspect than an independent informant, Empress

15   had cause to treat with some skepticism his “he-said, she-said” cross-accusations.          In

16   addition, as Vasquez notes, “the timing . . . is also suspicious,” Appellant’s Br. 20: it seems

17   unlikely that Vasquez should go from eagerly trading explicit messages to reporting such

18   conduct as unwelcome harassment within the space of only six hours. It likewise seems

19   strange that the very morning Gray is accused by Vasquez of harassment he should, when

20   questioned by Empress, just happen to have on hand printed copies of amorous text

21   messages purportedly received from Vasquez to substantiate his claim that she initiated the

22   inappropriate exchange. Moreover, those messages themselves, viewed in the light most

23   favorable to Vasquez, provide reason to distrust Gray’s account: according to Vasquez’s


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 1   complaint, the racy picture message “was by no means unequivocally of [Vasquez],” as it

 2   showed only “a small fraction of a face which can by no means [be] concluded to be that of

 3   [Vasquez].” App’x 13.8 Empress, however, chose to ignore these warning signs and instead

 4   blindly credited Gray’s assertions, obstinately refusing to inspect Vasquez’s phone or to

 5   receive any other evidence proffered by Vasquez in refutation. Accordingly, accepting

 6   Vasquez’s allegations as true, we conclude that a reasonable jury could find that Empress

 7   acted negligently in terminating Vasquez solely on the basis of Gray’s accusations.

 8                 In sum, we hold that an employer may be held liable for an employee’s animus

 9   under a “cat’s paw” theory, regardless of the employee’s role within the organization, if the

10   employer’s own negligence gives effect to the employee’s animus and causes the victim to

11   suffer an adverse employment action.                              Because Vasquez has plausibly alleged that

12   Empress’s negligence permitted Gray’s retaliatory intent to achieve its desired effect—her

13   termination—her claims for retaliation against Empress may proceed.

14                                                                  CONCLUSION

15                 For the foregoing reasons, we VACATE the judgment of the District Court and

16   REMAND the case for further proceedings consistent with this opinion.




                                                                 
     8In support of its motion to dismiss, Empress attached a copy of the text-message exchange provided by
     Gray, but the district court does not appear to have considered the document in reaching its judgment,
     and we therefore do not rely on the document to support our conclusion here. We note, however, that
     were we to consider the text-message printout as a document incorporated by reference in Vasquez’s
     complaint, see DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010), we would find additional
     fodder to support the inference that Empress should not have believed Gray’s account: for instance, the
     exchange indicates that Gray’s texting partner was “[a]sleep” at 12:03 AM on January 9th, a time when
     Vasquez was actually on shift working for Empress. See Supp. App’x 39.


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