Proximate Cause and Independent Investigations

At some point, I'll tidy up prior posts in this blog that may or may not be helpful in light of the Supreme Court's decision in Staub v. Proctor Hospital.  There, the Supreme Court rejected the "hard and fast" rule that an "independent investigation" could automatically eliminate alleged bias by a non-decision-maker who provided information that was relied upon in the adverse employment action.  To quote the decision:

As we have already acknowledged, the requirement that the biased supervisor’s action be a causal factor of the ultimate employment action incorporates the traditional tort-law concept of proximate cause. See, e.g., Anza v. Ideal Steel Supply Corp., 547 U. S. 451, 457–458 (2006); Sosa, supra, at 703. Thus, if the employer’s investigation results in an adverse action for reasons unrelated to the supervisor’s original biased action (by the terms of USERRA it is the employer’s burden to establish that),then the employer will not be liable. But the supervisor’s biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified.

But what is meant by "the traditional tort-law concept of proximate cause?"  To be honest, its use here seems out of place as it is a doctrine meant to relieve a remote tortfeasor (the person that is alleged to have caused harm to another) from liability.  Since employers, not biased supervisors, are liable for unlawful discrimination, using proximate cause to affect an employer' liability seems backwards.  The Court was not, we must assume, addressing the "traditional" effect of a proximate cause analysis but using it to illustrate the ultimate point, that the employer needs to show (and in some cases, such as USERRA, prove) that the supervisor's bias was not "a" cause of the employer's decision.

So what is proximate cause? This discussion of proximate cause is from a court of appeals decision (not in the employment discrimination field but a suit by shareholders against a corporations directors alleging a breach of the duty of loyalty) issued today:

The term “proximate cause” is pervasive in American tort law, but that doesn’t mean it’s well understood. A common definition is that there must be proof of “some direct relation between the injury asserted and the injurious conduct alleged.” Hemi Group, LLC v. City of New York, 130 S. Ct. 983, 989 (2010), quoting Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 268 (1992). But “direct” is no more illuminating than “proximate.” Both are metaphors rather than definitions. What the courts are trying to do by intoning these words is to focus attention on whether the particular contribution that the defendant made to the injury for which the plaintiff has sued him resulted from conduct that we want to deter or punish by imposing liability, as in the famous case of Palsgraf v. Long Island R.R., 162 N.E. 99 (N.Y. 1928) (Cardozo, C.J.). The plaintiff was injured when a heavy metal scale collapsed on the railroad platform on which she was standing. The scale had buckled from damage caused by fireworks dropped by a passenger trying, with the aid of a conductor, to board a moving train at some distance from the scale. She sued the railroad; it would have been unthinkable for her to sue the scale’s manufacturer, even though if heavy metal scales did not exist she would not have been injured. No one would think the scale’s manufacturer should be liable, because no one would think that tort law should try to encourage manufacturers of scales to take steps to prevent the kind of accident that befell Mrs. Palsgraf. The railroad was a more plausible defendant; its conductor had tugged the passenger aboard while the train was already moving. But how could he have foreseen that his act would have triggered an explosion, as distinct from a possible injury to the boarder? If an accident is so freakish as to be unforeseeable, liability is unlikely to have a deterrent effect.

Coming closer to our case, the defendants cite our decision in Movitz v. First National Bank of Chicago, 148 F.3d 760 (7th Cir. 1998). The plaintiff had bought a building in Houston in reliance on what he claimed was the defendant’s misrepresentation of its value. Had it not been for the misrepresentation he would not have bought it. Shortly after the purchase the Houston real estate market collapsed and his investment was wiped out. The misrepresentation had not caused that collapse but it had been a cause of the plaintiff’s buying the building and thus had contributed to his loss. Yet we ruled, without using the term “proximate cause,” that he could not recover from the defendant because (among other reasons) that would produce overdeterrence by making the defendant an insurer of conditions that he could not control. Id. at 763. That would be as futile as making the manufacturer of the scale an insurer of Mrs. Palsgraf’s loss.

Proximate cause does not mean "but for."  Each of the examples the court of appeals gave could be "but for" causes of the perils described.  It means too remote

There is a lot to be said about the decision in Staub but for now, employers should continue to investigate allegations of employee misconduct only they should be sure to establish that information from an allegedly  biased (assuming that fact is asserted to begin with) should be independently corroborated so that the supervisor's alleged bias is as remote to the decision as possible.