When I was a young law student, the professors loved to talk about the erudite opinions of Judge so-and-so.  Judge Learned Hand of the Second Circuit was one such judge.  Justice Brandeis was another.  I suppose if any such judges are around today, Judge Posner of the Seventh Circuit would qualify.  His opinions frequently distills the law in ways us regular folks can understand.  Surely, that is a fundamental requirement for any appellate jurist.  In Cook v. IPC International Corporation, 673 F.3d 625 (7th Cir. 2012), the lower court judge muddled the case a bit.  Judge Posner addresses one issue by  explaining the "cats paw" analysis.  He refers the reader to the original fable.  In the original story, a monkey persuades a cat to stick his paw in the fire and pull out some roasting chestnuts, so the monkey can eat them.  The cat’s paw is singed, but the monkey gets his nuts.  The cat was acting at the behest of the monkey.  

Well, much the same occurs when a discriminatory supervisor persuades a higher ranking supervisor to terminate an employee.  The cat’s paw analysis arises in a case in which a female security guard was fired by a male supervisor who wanted an all male force.  But, as Judge Posner points out, the employer did not actually argue cat’s paw.  The employer actually argued that the female security guard had not been fired, at all. She merely misunderstood a transfer to be a termination.   It was the district court that erroneously injected the cat’s paw theory into the case.  as Judge Posner explained, the plaintiff simply claims the monkey fired her, not the cat.  That is, the monkey acted directly, not through some other person.  

The appellate opinion also explains the lower court’s error in imposing a sole decision-maker requirement for the jury’s verdict.  No one suggested there was more than one decision-maker.  The employer argued all along that the employee had not been fired.  Yet, the district court required the jury to find that the male supervisor was the "sole decision maker" in the termination, the termination which the employer denied ever occurred.  

Since the employee had the burden of proof, requiring her to show something that was not an issue amounted to a directed verdict for the employer, said the Judge.  Yes, it did.  Requiring her to prove something for which there was no evidence imposed a burden she could not meet.  And, so Judge Posner cleared up some baggage to reach the heart of the case.  See the opinion here

As much as I appreciate Judge Posner’s insight sometimes, at other times, in my opinion, he totally misses critical caselaw.  For example in Nicholson v. Pulte Homes, 690 F.3d 819 (7th Cir. 2012), he was presented with the termination of an employee who took FMLA leave.  Donna Nicholson had to take one day off to take her father to the oncologist.  When asked why the the female employee was fired, an HR representative said it was because she was dealing with "personal family issues."  The employee’s lawyer argued this statement showed the reason for her termination was related to her FMLA leave.  But, in oral argument, Judge Posner said he did not believe the HR representative was referring to Ms. Nicholson caring for her father.  He believed the HR person was simply trying to offer a polite response in his deposition.  

The Judge might be correct.  But, that is a decision for the jury.  Judge Posner, a bright judge in many ways, had no hesitation in substituting his judgment for that of the the jury.  He violated basis summary judgment principles.  The oral recording is available here.  Look for case No. 11-2238.