                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                  No. 02-1368
                                ________________

Marilyn Dedmon,                            *
                                           *
             Appellant,                    *
                                           *      Appeal from the United States
      v.                                   *      District Court for the
                                           *      Eastern District of Arkansas.
Carolyn Staley, individually and in        *
her official capacity as the Pulaski       *
County Circuit Clerk,                      *

             Appellee.

                                ________________

                                Submitted: September 12, 2002
                                    Filed: January 9, 2003
                                ________________

Before HANSEN, Chief Judge, RILEY and SMITH, Circuit Judges.
                           ________________

HANSEN, Circuit Judge.

       Marilyn Dedmon filed a First Amendment retaliation action against Carolyn
Staley, the Pulaski County Circuit Clerk, alleging that Staley terminated her in
retaliation for reporting that one of her coworkers was stealing witness fees. The jury
returned a verdict in favor of Staley, and Dedmon filed a motion for a new trial,
which the district court1 denied. Dedmon appeals, and we affirm the judgment of the
district court.

       Dedmon worked as an appeal transcript clerk in the Pulaski County Circuit
Clerk's Office. On occasion, the county prosecutor would subpoena a clerk, directing
the clerk to bring certain records to trial and testify as to their authenticity. The
subpoenaed clerk is paid a five-dollar witness fee as compensation upon filing the
subpoena and presenting a properly prepared witness fee certificate to the county
treasurer's office. On August 14, 2000, Dedmon discovered evidence which led her
to believe that one of her coworkers, Colleen Griffin, was stealing witness fees by
falsifying witness fee certificates. Dedmon reported this to her immediate supervisor,
Sherri Bruno. Bruno took no action on the report because she believed that Griffin
had recently testified on several occasions and because Dedmon failed to inform
Bruno that the witness fee certificates were not accompanied by the requisite
documentation.

       On September 22, 2000, Pam Heinley, another clerk, also discovered evidence
that led her to believe that Griffin was stealing witness fees. Heinley reported this
information to Bruno and showed her the allegedly falsified witness fee certificates.
Bruno relayed this information to Janice Hay, the Deputy Clerk, and to Staley. At
that time, Bruno did not inform Staley that Dedmon previously had made a similar
allegation. Staley, Hay, and Bruno met with Griffin, who admitted to stealing the
fees. Staley terminated Griffin shortly thereafter.

      On November 27, 2000, Bruno and Hay informed Dedmon that she had been
terminated. Although Bruno and Hay were the messengers, Staley made the decision
to terminate Dedmon, as only she possessed the authority to terminate a clerk.


      1
       The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.
                                          2
Dedmon filed a complaint in the district court, asserting, among other things, a First
Amendment retaliation claim alleging that Staley had fired her in retaliation for
reporting Griffin. At trial, Dedmon's counsel proffered a "cat's paw" instruction that
the district court rejected. The instruction read: "If Plaintiff has demonstrated that
Sherri Bruno had influence or leverage over the decisionmaker with regard to Marilyn
Dedmon's discharge, and thus was not an ordinary coworker, you may impute Sherri
Bruno's discriminatory attitudes to the decisionmaker." (Appellant's Sep. App. at 13.)
The jury rendered a verdict in Staley's favor on the First Amendment retaliation
claim. Dedmon filed a motion for a new trial, arguing that the district court
erroneously refused to submit to the jury her proffered "cat's paw" instruction thereby
precluding the jury from considering her theory of the case.2


      2
        We possess serious doubt that Dedmon's proffered instruction correctly states
the "cat's paw" rule. The rule provides that an employer cannot shield itself from
liability for unlawful termination by using a purportedly independent person or
committee as the decisionmaker where the decisionmaker merely serves as the
conduit, vehicle, or rubber stamp by which another achieves his or her unlawful
design. See Lacks v. Ferguson Reorganized Sch. Dist. R-2, 147 F.3d 718, 725 (8th
Cir. 1998) (stating that where the decisionmaker made an independent determination
as to whether the plaintiff should be terminated and did not serve merely as a conduit
for the desires of those with unlawful motives, then the "cat's paw" theory must fail),
cert. denied, 526 U.S. 1012 (1999); Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.
1990). Assuming that the County, and not Staley, is Dedmon's employer, then
Dedmon's instruction does not accurately state the law. Instead, it states that an
otherwise innocent decisionmaker can be personally liable for the unlawful animus
of another. Our "cat's paw" cases do not go that far; they merely state that an
employer can be liable, under certain circumstances, where the formal decisionmaker
is not the person who harbored an unlawful motive to terminate the employee. See,
e.g., Kramer v. Logan County Sch. Dist. No. R-1, 157 F.3d 620, 624 (8th Cir. 1998);
Lacks, 147 F.3d at 725; Kientzy v. McDonnell Douglas Corp., 990 F.2d 1051, 1057
(8th Cir. 1993). Although other circuits have stated that discriminatory or unlawful
motive can be imputed to the formal decisionmaker, see, e.g., Russell v. McKinney
Hosp. Venture, 235 F.3d 219, 226-27 (5th Cir. 2000), we think that is only for the
limited purpose of determining whether the employer could be held liable. We found
                                          3
       We review the district court's refusal to submit a requested instruction to the
jury for an abuse of discretion. Ford v. GACS, Inc., 265 F.3d 670, 679 (8th Cir.
2001), cert. denied, 122 S. Ct. 1358 (2002). Generally, we will affirm the district
court when it declines to give an instruction that is unsupported by the evidence
because such an instruction is "irrelevant to any finding the jury properly could make
and [is therefore] a potential source of needless confusion." Hoselton v. Metz Baking
Co., 48 F.3d 1056, 1063 (8th Cir. 1995).

       Quite simply, there is no evidence that Bruno initiated, exercised, or even
possessed any influence or leverage over Staley's decision to terminate Dedmon.
Indeed, the evidence suggests that Bruno was not consulted or even aware that Staley
was going to fire Dedmon until the time Staley had already made the decision. In
addition, there is no evidence that Bruno harbored any unlawful animus toward
Dedmon and sought to get her fired in retaliation for reporting Griffin. In that
respect, the requested instruction was also objectionable because it ascribed
"discriminatory attitudes" to Bruno without requiring the jury to find that Bruno, in
fact, possessed such "attitudes." Also, upon close inspection, Dedmon's theory of the
case makes little sense. The illogic of her position is revealed when juxtaposed with
facts showing that Heinley, who also made a report against Griffin that ultimately led
to Griffin's termination, was never disciplined. Although there is no evidence
supporting the proposition that Dedmon was fired for illegal reasons, there is
evidence indicating that Staley fired Dedmon for other reasons. The evidence
indicates that Dedmon did not interact well with others. Bruno testified that one of
Dedmon's trainees was reduced to tears and complained that Dedmon was mean to
her. Bruno also testified that at least six of Dedmon's coworkers had made


no case suggesting that an otherwise innocent decisionmaker could be personally
liable for the discriminatory motive of another. Although we believe that Dedmon's
proffered instruction incorrectly states the law, we do not rely on this as a basis for
our decision because even if Dedmon's proffered instruction is an accurate statement
of the law, there is no evidence supporting the instruction as proffered.
                                          4
complaints against Dedmon. There is also evidence that Dedmon was unwilling to
help out at the front counter and was unwilling to answer phones. This testimony is
substantiated by two somewhat unsatisfactory work evaluations. An evaluation dated
January 11, 1999, states that Dedmon needed to concentrate more on assisting within
the office. An evaluation dated February 26, 1999, states that Dedmon failed to
address the problems cited in the January evaluation and that she needed to improve
her cooperativeness and attitude.

        In light of the evidence presented at trial and the dearth of evidence supporting
the propositions that Bruno had an unlawful motive to have Dedmon terminated and
wielded influence or leverage over Staley, we cannot say that the district court abused
its discretion in refusing to submit the proffered instruction to the jury. Accordingly,
the judgment of the district court is affirmed.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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