But after refusing to sleep with a male supervisor, she received a poor job performance evaluation from him and was subsequently fired by his boss based upon the poor evaluation.

Uh-huh, Jane fumed. Retribution is what got her canned, not her work record, she thought.

She brought a civil discrimination suit against her old employer. Her rejected lothario had interceded with managers to have her fired without just cause, she argued.

This scenario is just a fictitious example of cases that attorney Gaye Tibbets, of Wichita, has represented clients in, involving what's called the "Cat's Paw" legal theory.

The Cats Paw theory derives its name from a fable in which a monkey convinces an unwitting cat to pull chestnuts from a hot fire. The cat does so, burning his paw. The monkey eagerly gobbles up the chestnuts, leaving none for the cat.

There was a time when only the person with the firing authority could be liable for a claim of wrongful termination due to sexual discrimination.

But today, the Cat's Paw theory holds employers responsible for terminations, demotions or other actions they make that are influenced by someone with bad motives but without sole authority to make the decision.

"It's someone who can influence a decision, but when pressed, can honestly say they did not have the authority to make the decision," Tibbets said.

The Johnson lawsuit

The Cat's Paw theory figures in a federal civil lawsuit recently brought by Ann Johnson, the former head of the Salina Housing Authority. She was fired by the Housing Authority Board in January 2008.

In her suit, Johnson claims that she was fired because she refused the sexual advances of former mayor and city commissioner Alan Jilka. Jilka didn't fire Johnson, the housing authority board fired her. Until April 2007, Jilka was a city commissioner and was the commission's liaison to the housing authority board. Upon becoming mayor in April 2007, Jilka discontinued his role as liaison and acquired authority to recruit candidates to be board members.

Jilka has strongly denied all of Johnson's allegations, including that he sexually harassed her. She's seeking compensation for back wages and benefits and punitive damages, among other things.

Improper sexual advances, as a motive for seeking to have someone fired, aren't easy to prove, said Tibbits, a specialist in employment law.

"We've always called it he said/she said. It depends on how credible people are. These days, e-mails and cell phone records are pretty helpful to help jurors decide who's telling the truth. Sometimes it just comes down to who you believe."

In the context of employment law, the higher level decision-maker is duped by a manager into doing the manager's bidding and taking action against the employee.

Salina attorney Norman Kelly is representing Johnson. Her lawsuit follows complaints that she filed last year with the Kansas Human Rights Commission and the federal Equal Employment Opportunity Commission. Johnson directed the housing authority from December 2000 to January 2008.

Kelly would not discuss details of the pending case, which in addition to Jilka names the city of Salina, the Salina Housing Authority, four members of the housing authority board who fired Johnson (one member left before the vote), and a former board member Troy Vancil.

However, Kelly did say this past week that "We believe that elements of the Cat's Paw doctrine will have applicability in this case."

Kelly said the complaints with the state and federal agencies were terminated because of the federal lawsuit. Those agencies never made a finding that there was or was not probable cause for a claim, he said.

A lack of funding

Tibbits said the original intent of the human rights commission and equal opportunity commission was to investigate and negotiate claims before taking them to court.

But the agencies were never funded to the degree necessary to carry out investigations of every single complaint, she and others said.

"They are underfunded and backlogged. I would not read anything into the effect that they made no finding," said professor Myrl Duncan, who teaches employment discrimination law at Washburn Law School in Topeka.

Johnsons' suit alleges that Jilka vowed to stack the housing authority board with people who agreed in advance to fire Johnson.

"It isn't your usual Cat's Paw theory when the mayor is one of several figures involved in the decision-making process," said Elinor P. Schroeder, professor of employment and labor law at the University of Kansas School of Law in Lawrence.

In the reverse, how hard is it to countersue with an allegation that the original lawsuit is frivolous?

"It's a pretty high bar," Schroeder said. "It has to be shown that the (action) was frivolously brought in bad faith -- that the plaintiff is pursing the action knowing there was no basis for it. That's very hard to show, as a practical manner."

Most cases settled

The settlement rate in sexual discrimination cases is high, the legal experts said. Tibbets estimates that 10 percent or fewer ever make it to trial. Schroeder said many federal district courts require mandatory mediation between the parties to arrive at a pretrial settlement.

"Most of them get thrown out for legal reasons," Tibbets said. "It's difficult to get it all the way to trial. And if its an egregious case, many times the employer will just go ahead and settle. And often the employee also wants to avoid embarrassment."

The federal Tenth Circuit Court of Appeals, which includes the state of Kansas, has held that in such cases, a plaintiff must establish more than mere influence or input into the decision-making process. It must be shown that the originator of the discriminatory action caused the adverse employment action.

"The concept that someone can exert pressure over a lower level manager is very real. I've seen those scenarios develop and unfortunately get carried out," Kelly said.

So far the U.S. Supreme Court has not ruled in any cases that would define what an employee has to prove to establish a claim based on the Cat's Paw theory, he said.

There's something to it?

A defense used by employers to a sexual discrimination claim is the company's policy on reporting such abuse. That is, did the employer educate employees that they should report their claims internally to a supervisor, and did they do so, Tibbets said.

But when the policy merely offers the employee the ability "to complain to the same person who's harassing you ... the courts are not going to look favorably on those kinds of mechanisms," Duncan said.

More sexual discrimination and harassment goes on in workplaces that isn't reported, Duncan thinks.

"I never cease to be amazed how someone thinks they can get away with XYZ." he said. "My experience is that sexual harassment claims oftentimes have something to them. A sizable portion of the American business community sometimes just doesn't get it."

n Reporter David Clouston can be reached at 822-1403 or by e-mail at dclouston@salina.com.

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Had enough of perverts...... says....
Jeff- what a sexist comment. What if that woman was your mother? Your Grandmother? OR sister, or your wife/girlfriend? Sexual Harassment on the job needs to be stopped, period! Shame on you, Jeff. Men need to act professionaly at all times to gain respect. Same goes to the women as well.
11/4/2009

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Jeff says....
must be nice to be a female,always something to fall back on.
11/1/2009

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Independent says....
Jilka might be innocent, but Salina can provide a better candidate than a "tax them till they bleed" candidate.
11/1/2009

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