New Petition Asks Court to Clarify "Cat’s Paw" Liability After Tenth Circuit Shields Employer

The name "cat's paw liability" comes from a Jean de la Fontaine fable (itself derived from Aesop) in which a cunning monkey persuades a cat to pull roasting chestnuts from a fire. The cat burns its paw while the monkey eats the chestnuts, making the cat an unwitting dupe carrying out the monkey's scheme. Judge Posner imported the metaphor into employment law in a 1990 Seventh Circuit age discrimination opinion, and it stuck. The basic idea with cat's paw liability is that an employer can be held responsible for an adverse employment action when a biased subordinate - even one who lacks final decisionmaking authority - manipulates or influences an ostensibly neutral decisionmaker into carrying out what is, in effect, the subordinate's discriminatory intent.

A disabled Marine veteran is asking the Supreme Court to clarify the scope of Staub v. Proctor Hospital, 562 U.S. 411 (2011), the foundational decision establishing that an employer can be held liable when a biased supervisor’s discriminatory act proximately causes an adverse employment decision—even if the ultimate decisionmaker harbors no bias. The petition in Sellman v. Aviation Training Consulting, LLC contends that the Tenth Circuit has effectively nullified that framework by treating independent review and shared decisionmaking authority as categorical defenses.

Nicholas Sellman, who holds a 100% VA disability rating for PTSD, degenerative back disease, and a sleep disorder, worked as a loadmaster instructor for ATC in Kuwait. His second-level supervisor allegedly called him a “cripple” and accused him of gaming the disability system. Sellman filed an HR complaint, and ATC counseled the supervisor. Months later, a chief pilot who was unaware of either the remarks or the complaint rated Sellman as “marginal” in several performance categories. ATC ultimately declined to renew Sellman’s contract, citing his performance evaluation and a lapsed flight certificate.

The petition argues that the Tenth Circuit collapsed Staub’s proximate-cause inquiry into a rigid rule: if anyone in the chain of command conducted some form of independent review, the causal link between a biased subordinate’s act and the adverse action is deemed broken as a matter of law. In Staub, Justice Scalia’s opinion specifically rejected the argument that an independent investigation by the final decisionmaker automatically removes liability—holding instead that the question is whether the biased act remained a proximate cause of the ultimate decision. The petition contends the Tenth Circuit’s approach conflicts with this holding and creates a circuit split over whether independent review is dispositive or merely one factor in the causation analysis.

The case arrives at a moment of heightened attention to employment discrimination doctrine. Last term, the Court unanimously recalibrated the McDonnell Douglas framework in Ames v. Ohio Department of Youth Services, No. 23-1039, eliminating the “background circumstances” requirement that several circuits—including the Tenth—had imposed on majority-group plaintiffs. Together, Ames and a potential grant in Sellman could further define the evidentiary architecture of workplace discrimination claims.

Petitioner is represented by Jason Christopher Nathaniel Smith of the Law Offices of Jason Smith. A response is due March 23, 2026.