Please read the case study titled "Vasquez v. Empress Ambulance Service"

Carefully analyze the opinions and actions of the District Court as well as the appellate courts, if applicable.

3.What is the evidence that this employer was negligent in relying on the "information" provided by the coworker? What should this employer have done instead?(No less than 75 words)

4. Do you agree with the decision in this case? Why or why not? Should the employer also be liable for the harassment suffered by Vasquez? Why or why not?(No less than 50 words)

CASE STUDY:

Vasquez v. Empress Ambulance Service 835 F.3d 267 (2d Cir. 2016) Opinion by Circuit Judge Calabresi: In the space of twenty-four hours, Andrea Vasquez faced unwelcome sexual advances in the workplace, complained about that conduct to her employer, and lost her job. After receiving unsolicited sexual photographs from a co-worker one night shift, Vasquez promptly informed her supervisor and filed a formal complaint of sexual harassment, which her employer promised to investigate that same morning. Within a few hours, however, Vasquez's co-worker had discovered her complaint and had provided the employer with false documents purporting to show Vasquez's consent to and solicitation of a sexual relationship. In reliance on those documents, and notwithstanding Vasquez's offers to produce evidence in refutation, Vasquez's employer immediately fired her on the ground that she had engaged in sexual harassment. Vasquez consequently brought suit under Title VII . . . and New York State law. . ., alleging that she was wrongfully terminated in retaliation for complaining of sexual harassment. The district court dismissed Vasquez's claims, holding that Vasquez's employer could not have engaged in retaliation because it could not be held responsible for the retaliatory animus of Vasquez's co-worker, a low-level employee with no decision-making authority. We hold, however, that an employee's retaliatory intent may be imputed to an employer where, as alleged here, the employer's own negligence gives effect to the employee's retaliatory animus and causes the victim to suffer an adverse employment decision. As a result, we vacate the court's decision and remand for further proceedings. Background In July 2013, Andrea Vasquez was hired by Empress Ambulance Service, Inc. ("Empress") to work as an emergency medical technician on an ambulance crew. In October of that year, Vasquez met Tyrell Gray, who worked for Empress as a dispatcher and who almost immediately began making romantic overtures to Vasquez. Over the course of their acquaintance, Gray "constantly asked [Vasquez] out on dates," "attempted to flirt with her," and "repeatedly . . . put his arm around her or touched her shoulders," causing Vasquez "to be extremely uncomfortable" as she tried to reject his advances. This conduct came to a head in January 2014. On January 8, while Vasquez and Gray both worked in Empress's office, Gray approached Vasquez, placed his arm around her, and asked "When are you going to let me take you out?" When Vasquez replied that she had a boyfriend and was not interested in a romantic relationship, Gray insisted that "I bet I can make you leave your man" and promised to "send . . . something between you and me." Around midnight that night, while out on shift, Vasquez received a picture message from Gray: a photograph of his erect penis, captioned "Wat u think." Vasquez did not respond to this message or to a follow-up text message from Gray as she continued her work. When Vasquez returned to the office at the conclusion of her shift, however, she was "extremely embarrassed, distraught, and crying." And she promptly informed an Empress field supervisor about Gray's conduct. Promising that "[w]e're going to deal with this," the supervisor walked Vasquez to a computer in Empress's office and asked that she compose and send a formal complaint right away, which Vasquez began to do. As Vasquez was writing her complaint, however, Gray entered the room "to see a visually distressed [Vasquez] crying and typing at the computer." Gray, "noticeably nervous," asked Vasquez "if she was ok" and, after Vasquez declined to engage his attempts at conversation, stated, "You're reporting me, right?" Gray then went out of the room and ran into another emergency medical technician, Almairis Zapata, with whom he began discussing Vasquez's likely complaint. He asked Zapata, as "a favor," because he was "afraid he was going to lose his job," to "lie for [him]" and tell their supervisors that Vasquez and Gray had been in a romantic relationship." Zapata refused, and Gray left the building. After Gray's departure, Vasquez finished writing her complaint. . . . She then waited . . . until Sheri Baia, one of her supervisors, and Elizabeth Shepard, a member of the human resources department, arrived to discuss what had happened. The supervisors thanked Vasquez for "telling [her] story," assured her that "[w]e don't tolerate this sort of behavior here," and promised to "sort the situation out." To aid in their investigation, Vasquez offered to show the supervisors Gray's messages on her cell phone, but they rejected her offer. * * * [I]n the intervening hours, Gray "manipulated a text message conversation on his iPhone to make it appear as though a person with whom he had legitimately been engaging in consensually sexual text banter was [Vasquez]." He then "took screen shots of portions of the conversation, printed them off," and "presented it to the management" of Empress as evidence that he and Vasquez had been in a consensual sexual relationship. By the time Vasquez met with a committee of her union representative, Empress's owner, and Shepard to discuss the incident later that morning, the committee had already considered Gray's documents and had concluded that Vasquez was "having an inappropriate sexual relationship" with Gray. Shepard informed Vasquez that Empress "kn[e]w the truth," as they had spoken with Gray and had seen his "proof" of her improper conduct by means of "pictures and text messages." In particular, Shepard reported that Gray had shown them "a racy self-taken photo" that Vasquez had allegedly sent in response to Gray's explicit picture message, which they considered "proof that [Vasquez] had been sexually harassing [Gray]." Vasquez "adamantly denied" Shepard's allegations and asserted that Gray was lying, but Shepard insisted that "the committee had all seen the photograph" and "kn[ew] it was [her in the photo]." She made this assertion even though, in fact, the photo depicted only "a small fraction of a face" that could "by no means [be] concluded to be that of [Vasquez]." When Vasquez asked to see the photograph, moreover, Shepard refused. Likewise, when Vasquez again offered again to show the committee her own cell phone, in an attempt to prove that no such messaging had occurred, the committee declined. They then fired Vasquez for engaging in sexual harassment. * * * Discussion A. "Cat's Paw" Liability Vasquez seeks to recover against Empress under what has been termed "cat's paw" liability. The phrase derives from an Aesop fable . . . in which a wily monkey flatters a nave cat into pulling roasting chestnuts out of a roaring fire for their mutual satisfaction; the monkey, however, "devour[s] . . . them fast," leaving the cat "with a burnt paw and no chestnuts" for its trouble. [T]he "cat's paw" metaphor now "refers to a situation in which an employee is fired or subjected to some other adverse employment action by a supervisor who himself has no discriminatory motive, but who has been manipulated by a subordinate who does have such a motive and intended to bring about the adverse employment action," Because the supervisor, acting as agent of the employer, has permitted himself to be used "as the conduit of [the subordinate's] prejudice," that prejudice may then be imputed to the employer and used to hold the employer liable for employment discrimination. In other words, by merely effectuating or "rubber-stamp[ing]" a discriminatory employee's "unlawful design," the employer plays the credulous cat to the malevolent monkey and, in so doing, allows itself to get burnedi.e., successfully sued. * * * B. Co-Workers and Cat's Paw(s) * * * While the Supreme Court has approved holding an employer liable for the retaliatory intent of one of its "supervisors" under a "cat's paw" theory, it specifically "express[ed] no view as to whether the employer would be liable if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the ultimate employment decision." We must therefore determine in the first instance under what circumstances the "cat's paw" approach will render an employer responsible for the animus of a low-level employee who works alongside the victim. * * * We see no reason [not] . . . to hold an employer liable under Title VII when, through its own negligence, the employer gives effect to the retaliatory intent of one of itseven low-levelemployees. Not surprisingly, another circuit court has already determined . . . that a discriminatory termination claim can proceed against an employer who negligently permitted the plaintiff's co-worker, a low-level employee harboring discriminatory intent, to induce the plaintiff's termination. In [that case], the First Circuit . . . held that "an employer can be held liable under Title VII if: the plaintiff's co-worker makes statements maligning the plaintiff, for discriminatory reasons and with the intent to cause the plaintiff's firing; the co-worker's discriminatory acts proximately cause the plaintiff to be fired; and the employer acts negligently by allowing the co-worker's acts to achieve their desired effect though it knows (or reasonably should know) of the discriminatory motivation." We agree with the First Circuit, and therefore conclude that Vasquez can recover against Empress if Empress was itself negligent in allowing Gray's false allegations, and the retaliatory intent behind them, to achieve their desired end. Assuming that Empress knew or should have known of Gray's retaliatory animus, the fact that "Gray was nothing more than . . . a low-level employee with no supervisory or management authority," cannot shield Empress from answering for Gray's conduct because Empress's own negligence provides an independent basis . . . to treat Gray as Empress's agent and hold Empress accountable for his unlawful intent. * * * Empress's alleged negligencein crediting Gray's accusations to the exclusion of all other evidence, and specifically declining to examine contrary evidence tendered by Vasquez, when it knew or, with reasonable investigation, should have known of Gray's retaliatory animuscaused Gray's accusations to form the sole basis for Empress's decision to terminate Vasquez. Thus, as a result of Empress's negligence, Gray achieved a "meaningful," and indeed decisive, role in Vasquez's termination. Put differently, while Gray might, on other facts, have played no greater part than that of a mere "informant" . . . who simply offered information for the decisionmaker's examination, on the facts before us, viewed in the light most favorable to Vasquez, Gray became the entire case against Vasquez when Empress negligently chose to credit his, and only his, account. We emphasize that such an approach should not be construed as holding an employer "liable simply because it acts on information provided by a biased co-worker." As we have long held, when considering the legitimacy of an employer's reason for an employment action, we look to "what 'motivated' the employer" rather than to "the truth of the allegations against [the] plaintiff" on which it relies. Thus, an employer who, non-negligently and in good faith, relies on a false and malign report of an employee who acted out of unlawful animus cannot, under this "cat's paw" theory, be held accountable for or said to have been "motivated" by the employee's animus. * * * Only when an employer in effect adopts an employee's unlawful animus by acting negligently with respect to the information provided by the employee, and thereby affords that biased employee an outsize role in its own employment decision, can the employee's motivation be imputed to the employer and used to support a claim under Title VII. Put simply, an employer can still "just get it wrong" without incurring liability under Title VII, but it cannot "get it wrong" without recourse if in doing so it negligently allows itself to be used as conduit for even a low-level employee's discriminatory or retaliatory prejudice. Having determined that Vasquez can recover against Empress if Empress negligently gave effect to Gray's retaliatory animus, we need now only decide whether Vasquez has sufficiently pled that Empress acted negligently in its treatment of Gray's and Vasquez's accusations. Although Vasquez does not use the term "negligence" in her complaint, we conclude that she has pled facts from which a reasonable person could infer that Empress knew or should have known that Gray's accusations were the product of retaliatory intent and thus should not have been trusted. First, the fact that Gray had just learned that he had been accused by Vasquez of sexual harassment provided Gray with an obvious reason to lie and paint Vasquez as the perpetrator rather than the victim. With Gray more closely resembling a vengeful suspect than an independent informant, Empress had cause to treat with some skepticism his "he-said, she-said" cross-accusations. In addition, as Vasquez notes, "the timing . . . is also suspicious." [I]t seems unlikely that Vasquez should go from eagerly trading explicit messages to reporting such conduct as unwelcome harassment within the space of only six hours. It likewise seems strange that the very morning Gray is accused by Vasquez of harassment he should, when questioned by Empress, just happen to have on hand printed copies of amorous text messages purportedly received from Vasquez to substantiate his claim that she initiated the inappropriate exchange. Moreover, those messages themselves, viewed in the light most favorable to Vasquez, provide reason to distrust Gray's account: . . . the racy picture message "was by no means unequivocally of [Vasquez]," as it showed only "a small fraction of a face which can by no means [be] concluded to be that of [Vasquez]." Empress, however, chose to ignore these warning signs and instead blindly credited Gray's assertions, obstinately refusing to inspect [them.] * * * In sum, we hold that an employer may be held liable for an employee's animus under a "cat's paw" theory, regardless of the employee's role within the organization, if the employer's own negligence gives effect to the employee's animus and causes the victim to suffer an adverse employment action. Because Vasquez has plausibly alleged that Empress's negligence permitted Gray's retaliatory intent to achieve its desired effecther terminationher claims for retaliation against Empress may proceed. * * *