Firefighter's Threats, Not Chief's Bias, Caused Termination

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By Laura D. Francis

Oct. 15 — A firefighter's threats that he wanted to “kill somebody, all of them,” and that his children would “go over there” and “tune them up”—referring to his co-workers and superiors—got him fired, not the fire chief's bias, the U.S. Court of Appeals for the Seventh Circuit ruled Oct. 15.

The Board of Fire and Police Commissioners for the City of Berwyn, Ill., held a full evidentiary hearing during which John Woods was represented by an attorney. But Woods argued that the board was simply acting as a “cat's paw” for Fire Chief Denis O'Halloran.

The 53-year-old firefighter claimed that O'Halloran wanted to fire him based on his age and a back injury he sustained in the line of duty.

Staub v. Proctor Hospital , 562 US 411, 111 FEP Cases 993, 2011 BL 51397 (2011), the first U.S. Supreme Court decision to adopt the Seventh Circuit's “cat's paw” theory of discrimination, held that an employer still can be liable even where the ultimate decisionmaker exercises independent judgment, as long as there is a direct relation between a subordinate's discriminatory animus and the final decision, the court said.

However, Judge Ann Claire Williams wrote for the court, “[i]f the ultimate decision-maker does determine whether the adverse action is entirely justified apart from the supervisor’s recommendation, then the subordinate’s purported bias might not subject the employer to liability.”

“To hold otherwise would be to rule that whenever a discriminatory subordinate makes an allegation or institutes a charge and the plaintiff-employee is fired, there are no steps the ultimate decision-maker could ever take to break that chain of proximate causation,” Williams said. “That cannot be so.”

Independent Basis for Decision

Here, although O'Halloran's recommendation for termination spurred the board's hearing, it wasn't that recommendation that formed the basis for the board's decision, the court found.

The court pointed out that the board conducted its own fact-finding hearing but said “this hearing procedure does not automatically negate the influence of the potentially biased O’Halloran.”

“In this case, the hearing broke the chain of causation because the record shows that the Board did not rely on the facts presented by the presumably biased O’Halloran,” Williams wrote. Instead, the board relied on testimony from Woods's co-worker, to whom he allegedly made the threatening statements, who didn't have discriminatory animus, the court said.

“In other words, the Board made its determination without relying on any of O’Halloran’s statements or actions,” the court said. “This shows the Board was not an unwitting dupe and did not rely on O’Halloran to reach its decision.”

As such, summary judgment properly was granted to the city, the court held.

Claimed Discrimination After Back Injury

According to the court, the discrimination claims stemmed from Woods's back injury that he sustained while carrying a 350-pound heart attack victim. Woods claimed that O'Halloran and Assistant Chief Frank Simek pressured him into filling out Family and Medical Leave Act paperwork and that, when Woods returned to work, O'Halloran told him he should retire or go on disability.

Instead, Woods successfully bid on a training officer position but claimed that his superiors set him up to fail. Woods also claimed that O'Halloran made a comment about his age and that an assistant chief and deputy chief told him they wanted him to retire or be fired.

When Woods told O'Halloran that he wanted out of the training officer position, O'Halloran indicated that it would automatically go to Woods's friend, Ronald Hamilton, if nobody else wanted the job. Hamilton didn't want the position, and he and Woods had a conversation, during which Woods allegedly made the threatening comments.

Woods denied making the threats, yet his well-being was investigated by Berwyn police officers as well as a psychologist selected by O'Halloran. Despite findings that Woods wasn't a threat to himself or others, O'Halloran conducted his own investigation and later recommended Woods's termination.

Following a full hearing, during which Woods was represented by counsel, the board justified Woods's termination in a decision that has been upheld by two state courts, the Seventh Circuit noted.

Woods filed a complaint in federal district court in Illinois, claiming his termination violated the FMLA, the Americans with Disabilities Act, the Age Discrimination in Employment Act and Illinois's workers' compensation law. The district court granted summary judgment to the city (Woods v. City of Berwyn, 2013 BL 278324, 28 AD Cases 1098 (N.D. Ill. 2013)).

No ‘Universal Framework.'

On appeal, the Seventh Circuit recognized that Staub changes the circuit's law on the cat's paw theory.

“Here, we do not attempt to outline a universal framework for post-Staub cases,” Williams wrote. “The application of Staub principles in this case is limited to these facts.”

In addition to finding that the board's reliance on outside evidence dismantled his cat's paw theory, the court also rejected Woods's argument that the board in fact does O'Halloran's bidding. Woods pointed to O'Halloran's statements that only he could fire Woods, that O'Halloran, rather than the board, ran the department and that O'Halloran was “not aware of” any instances over the past 10 years when the board had rejected any proposed discipline.

First, the court said, it was clear that the board, not O'Halloran, did have the ultimate termination authority, otherwise the full hearing would have been unnecessary.

And the board's adoption of recommendations as to discipline referred to all managers' recommended discipline, not just O'Halloran's, the court said. Furthermore, it said, there were fewer than five disciplinary recommendations to the board over the past 10 years.

“We would be more inclined to accept this theory if there was any evidence that the Board did not conduct full hearings in those cases, that those decisions were without merit, or that they relied entirely on the Statement of Charges without any other support,” Williams wrote. “But most importantly, for the reasons discussed, Woods has failed to present a genuine issue of material fact that the Board was rubber-stamping O’Halloran’s recommendation in this case.”

The court added that Woods lacked evidence that any similarly situated firefighter made serious threats and wasn't fired after a hearing before the board.

Finally, the court said it doesn't matter whether Woods actually made the threats attributed to him. “It is sufficient under the cat’s paw theory that the Board found Woods made those statements and that the Board was not subject to O’Halloran’s control,” Williams wrote. “Because Woods cannot prevail under his cat’s paw theory, and he advocates no other theory of liability, his claims must fail.”

Judges Michael S. Kanne and David F. Hamilton joined the opinion.

Golan & Christie and the Law Office of Harry C. Lee represented Woods. Laner Muchin and the Del Galdo Law Group represented the city.

To contact the reporter on this story: Laura D. Francis in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the opinion is available at