Mr. Poland, a supervisor for the Customs Service in Portland, OR, filed a complaint of age discrimination? with? his? employer.? A? year? and? a half later, Poland?s boss, Hillberry, who had been the subject of Poland?s complaint, recommended investigating ?Poland?s? work? performance. Hillberry? ?selected? ?all? ?of?? the? ?witnesses? ?who appeared before a panel to testify regarding Poland?s performance. The panel concluded that Poland was unprofessional, confrontational, argumentative, and ineffective.? ?To protect the employees in the Portland office who had testified against Poland, the Review Board transferred Poland to a nonsupervisory position in Virginia, ?for the good of the agency.? Poland accepted reassignment but quit the Service several months after ?beginning ?his ?work ?in ?Virginia.??? ?Poland prevailed at a jury trial on an ADEA claim of constructive discharge.

The case presented two significant questions. First,?? when?? can?? the?? animus?? of?? a?? biased subordinate employee (i.e. Hillberry) be imputed to the employer where the employee precipitates an ?independent? investigation that leads to an adverse employment action???? ?The court considered three possible answers.

The court found that a ?but for? test–placing liability? on? the? employer? because? the investigation was initiated by a biased party causing?? an?? adverse?? employment?? action?? that would not otherwise have taken place — was too ?expansive.? Similarly, it found imputing a subordinate?s animus to his employer only where the? biased? employee? ?dominates? the investigatory process and the final decision is a perfunctory approval of the biased subordinate?s inclination? to be too narrow. Instead, the court adopted a modified version of the ?cat?s paw? or ?rubber stamp? doctrine:?? A subordinate?s bias may be imputed to the employer where the subordinate, in response to a plaintiff?s protected activity, sets in motion an ?independent? investigation that is influenced by the biased employee and leads to an adverse employment action.

Left unresolved is how much ?influence? is enough to impute liability.?? In a footnote, the court explained that ?the plaintiff need not make such an extensive showing to establish the minimal causal link required at the prima facie stage of a retaliation claim under the McDonnell Douglas burden-shifting regime.?

The second question raised was whether the plaintiff?s demotion and transfer was sufficient, as a matter of law, to establish constructive discharge.? ?The court reversed and vacated, holding that plaintiff failed to meet the high burden of ?unendurable working conditions? and ?conditions?? so?? intolerable?? that?? a?? reasonable person? in? the? employee?s? position? would? have felt compelled to resign.?? ?At trial, Poland had testified that the new job entailed no supervisory responsibility, consisted entirely of sorting paper from one side of his desk to the other, and was a ?career ender.? The court held that preferring his prior position was insufficient. Because Poland had moved locations regularly, the Customs Service asks all special agents to sign waivers acknowledging that they may be transferred anywhere? in? the? country? for? the? good? of? the agency, and Poland had accepted the reassignment and held the position for a number of months prior to quitting, the court found that the adverse employment action was not constructive discharge. The court declined, however, to join the majority of? circuits? which? require? plaintiffs ?to? show? that their employer intended to cause the employee to resign.

Dissenting in part, Judge Paez wrote that he would have upheld the finding of constructive discharge, finding ample evidence that over a period of a decade ?Poland was subjected to treatment sufficiently intolerable that a reasonable employee would have felt compelled to resign.? ?Judge Paez criticized the majority for circumscribing ?a new area within which there can be no constructive discharge as a matter of law.? ?Poland v. Chertoff, Nos. 05-35508, 05-35779 (7/20/07; Gould, Rawlinson, Paez).