Licensing‑Board Reports as Adverse Actions and the “Unbroken Chain” in Cat’s Paw Retaliation: The Tenth Circuit’s Decision in Byrnes v. St. Catherine Hospital

Introduction

In Byrnes v. St. Catherine Hospital, the Tenth Circuit reversed summary judgment for St. Catherine Hospital and Centura Health Corporation on two Title VII retaliation claims brought by a physician, Dr. Matthew Byrnes. The court held that a jury could find (1) Dr. Byrnes’s termination and (2) the defendants’ later reporting of four of his cases to the Kansas Board of Healing Arts (KBHA) were retaliatory responses to his protected activity—his sexual-harassment complaint against a colleague.

Doctrinally, the decision does three important things. First, it reinforces that Title VII retaliation uses the “materially adverse” standard from Burlington Northern and the “but‑for” causation standard from Nassar—and it corrects the district court’s use of discrimination‑law standards. Second, it elaborates the “cat’s paw” framework in the retaliation context: a biased subordinate’s one‑sided investigation can supply the retaliatory motive and causation, and an eight‑minute pre‑investigation phone call to a potentially biased subordinate does not break the chain. Third, it expressly recognizes that reporting a professional to a state licensing board can constitute a materially adverse action under Title VII’s anti‑retaliation provision.

The panel (Matheson, Kelly, Bacharach, JJ.) remanded for trial on both retaliation theories and directed the district court to reconsider supplemental jurisdiction over state claims.

Summary of the Opinion

Protected activity: Dr. Byrnes engaged in protected activity by reporting another physician’s alleged sexual harassment and by reiterating and supplementing that report.
Termination claim: A reasonable jury could find cat’s paw causation. The hospital’s Physician Executive (Dr. Green‑Cheatwood) and General Counsel (Mr. Sabey) conducted a one‑sided, unfair investigation and recommended termination. The final decisionmakers relied on their report without independently investigating or hearing Dr. Byrnes’s account, sustaining an “unbroken causal chain.”
Pretext (termination): Evidence of an unfair investigation plus very close temporal proximity (three weeks between a renewed complaint and termination) sufficed to create a triable pretext issue.
KBHA‑reporting claim: Reporting four cases to the state medical licensing board was a materially adverse action. A jury could find St. Catherine/Centura (through Drs. Stucky and Green‑Cheatwood) made the reporting decisions and acted with retaliatory motive, supported by disparate treatment in the peer‑review and reporting processes and by reporting at least one case that was not mandatory to report.
Standards clarified: The court applied Burlington Northern’s “materially adverse” standard and Nassar’s “but‑for” causation for retaliation. It emphasized that, in cat’s paw retaliation, the biased subordinate must be a but‑for cause, and the chain can be broken only by a genuine independent investigation by an unbiased decisionmaker.
State claims: Because federal claims were revived, the court remanded for the district court to reconsider supplemental jurisdiction over state causes of action.

Background and Key Facts

Dr. Byrnes, a general surgeon and intensivist, jointly employed by St. Catherine Hospital (SCH) and Centura, served as SCH’s Chief Medical Officer until June 2019.
On August 31, 2019, he reported Dr. Kessler for sexual harassment, patient‑care concerns, and exam‑room hygiene issues. The internal response concluded “no merit.”
January 27, 2020: SCH received a KBHA subpoena based on an anonymous complaint about Dr. Byrnes. The “general perception” in the hospital pointed to Dr. Kessler as the source, allegedly in retaliation.
February 6, 2020: Centura’s Physician Executive (Green‑Cheatwood) and General Counsel (Sabey) conducted a one‑day investigation. They did not interview Dr. Byrnes or any nurses; they interviewed physicians, including Dr. Kessler (with counsel).
February 12, 2020: Dr. Byrnes was terminated “without cause” by Centura decisionmakers (Lichtenberger and Gessel) after the Green‑Cheatwood/Sabey recommendation.
Post‑termination peer review and KBHA reporting: SCH sent cases for outside peer review at Centura’s St. Anthony’s Hospital. Four of Dr. Byrnes’s cases were reported to KBHA (one in 2020; three in 2021). By contrast, another surgeon (Gottschalk) with cases flagged as reportable was allowed to respond; his cases were downgraded to SOC‑2 (non‑reportable) and not sent to KBHA. Dr. Byrnes’s co‑surgeon on a 2015 thyroidectomy (Rink) was not reported.
Outcomes: KBHA closed the anonymous complaint (2021) and later closed all four reported cases (2022), indicating three adhered to the standard of care and electing no action on the fourth.

Detailed Analysis

Precedents Cited and How They Shaped the Decision

McDonnell Douglas (411 U.S. 792): Provided the burden‑shifting framework. The panel rigorously worked through prima facie, legitimate reason, and pretext at summary judgment.
Parker Excavating v. Lafarge (10th Cir. 2017): Confirmed the availability of direct or indirect proof of retaliation; the court proceeded via McDonnell Douglas.
Burlington Northern v. White (U.S. 2006): Reaffirmed that retaliation covers actions that are “materially adverse,” not just those altering terms and conditions. Central to holding that KBHA reporting can be adverse.
Nassar (U.S. 2013): Set the “but‑for” causation standard for Title VII retaliation; applied both in conventional and cat’s paw settings.
EEOC v. BCI Coca‑Cola (10th Cir. 2006): Foundational cat’s paw precedent—employer liability where a biased subordinate’s act is a proximate cause of the adverse decision; here the court adapts with Nassar’s but‑for standard for retaliation.
Thomas v. Berry Plastics (10th Cir. 2015) and Sellman v. Aviation Training Consulting (10th Cir. 2025): Clarify that in retaliation, cat’s paw requires the biased subordinate to be a but‑for cause and stresses the “unbroken causal chain.”
Smothers v. Solvay Chemicals (10th Cir. 2014): An unfair or one‑sided investigation can evidence pretext. The court heavily relied on this principle to infer retaliatory animus and pretext.
Trujillo v. PacifiCorp (10th Cir. 2008): Emphasized an employer’s failure to give an employee the benefit of the doubt and to interview key witnesses as evidence of pretext.
Iweha v. Kansas (10th Cir. 2024) and Lobato v. N.M. Env’t Dep’t (10th Cir. 2013): On breaking the cat’s paw chain through an independent investigation and on the role of temporal proximity in pretext, respectively.
Macon v. UPS (10th Cir. 2014): When the final decisionmaker merely relies on possibly biased reports, courts may refocus scrutiny on the biased subordinate.
Bekkem, Khalik, Hinds, Ward, Montes: Address the prima facie elements for retaliation, including knowledge and “circumstances that justify an inference of retaliatory motive.”
Anderson v. Coors (10th Cir. 1999), PVNF (10th Cir. 2007): Temporal proximity principles to support causation/pretext.
Culp v. Remington (10th Cir. 2025): Reaffirmed Burlington Northern’s materially adverse standard; the panel used it to frame the licensing‑board reporting claim.
Riggs v. AirTran (10th Cir. 2007): Distinguishable; there, the employee’s account was already known. Here, Dr. Byrnes was never interviewed about the full scope of new allegations.

Legal Reasoning

1) Termination Retaliation Claim

The court accepted that Dr. Byrnes engaged in protected activity and suffered a materially adverse action (termination). The key disputes were prima facie causation and pretext; both turned on cat’s paw analysis.

Retaliatory animus via pretext: The investigation was “glaringly” one‑sided. Investigators did not interview Dr. Byrnes or nurses despite relying on nurse‑access allegations; they coordinated schedules with other physicians and interviewed the accused doctor with counsel, undermining the stated reasons for not interviewing Byrnes. They did not test whether Dr. Byrnes arranged coverage (a dispositive factual point) even though their own physician interviews admitted coverage could be informal and was typically assured. They assumed Byrnes “shut down” peer review without verifying, contrary to the quality director’s and CEO’s later testimony.
Intent to cause adverse action: The Physician Executive and General Counsel recommended termination, explicitly linking their investigation to the termination decision. This satisfied the intent prong.
But‑for causation and the “unbroken chain”: Final decisionmakers (Lichtenberger and Gessel) admitted reliance on the investigative report and did not independently investigate or provide Byrnes a chance to be heard. An eight‑minute, pre‑investigation call with a potentially biased subordinate (Green‑Cheatwood) did not break the chain because the “unbiased decisionmakers” neither heard Byrnes’s account nor tested the one‑sided report.
Pretext at step three: Beyond the unfair investigation, very close temporal proximity—three weeks from Byrnes’s renewed harassment complaint to his termination—supported pretext when combined with the investigative flaws.

2) Report‑to‑KBHA Retaliation Claim

The district court misidentified the “decisionmaker” as the outside peer‑review committee and discounted causation. The Tenth Circuit corrected course.

Materially adverse action: Reporting four cases to KBHA is the kind of action that would dissuade a reasonable worker from protected activity. The court cited persuasive authority recognizing that the threat of licensing consequences qualifies. Here, the employer went beyond threat to actual reporting.
Who acted and knowledge: A reasonable jury could find that SCH/Centura—through Drs. Stucky and Green‑Cheatwood—made selection, review, and reporting decisions. They also knew about Byrnes’s protected activity.
Retaliatory motive and pretext overlap: Disparate treatment supported an inference of retaliatory motive and pretext. Dr. Gottschalk, with cases initially flagged as reportable (SOC‑3/4), was allowed to respond; his cases were downgraded to SOC‑2 and not reported. Dr. Byrnes did not get that opportunity, and at least one of his cases (a 2015 thyroidectomy) could be viewed by a jury as non‑reportable (not clearly SOC‑3/4) yet was reported—while his co‑surgeon (Rink) was not reported at all. The uneven lookback period and criteria applied to Byrnes, and revealing Byrnes’s identity to the peer‑review chair in at least one case, further distinguished how he was treated.
Employer’s proffer: The “exceedingly light” burden was met by asserting that each reported case was SOC‑3/4 (mandatory). But a jury could reject that rationale because at least one Byrnes case plausibly was not mandatory, yet reported; coupled with comparators receiving leniency, this created a triable pretext issue.

3) Standards Clarified

Retaliation standards govern: The district court erroneously invoked discrimination‑law concepts (“adverse employment action” and “proximate cause”). The panel reaffirmed that retaliation claims use Burlington Northern’s “materially adverse” and Nassar’s “but‑for” standards.
Cat’s paw in retaliation: The biased subordinate must perform a deliberate act motivated by retaliatory animus intended to cause the adverse action, and the act must be a but‑for cause. An independent investigation by an unbiased decisionmaker who hears the employee’s side can break the causal chain. That did not happen here.

Impact and Practical Consequences

For employers and HR investigators

Licensing‑board reporting can be retaliatory: Reporting a professional to a state licensing authority is a materially adverse action for Title VII retaliation. Compliance with mandatory reporting laws is important, but over‑reporting, selective reporting, or inconsistent treatment invites liability.
Investigation quality matters: One‑sided, “confirmatory” investigations—especially those that omit the accused’s interview and key witnesses—can establish pretext and cat’s paw causation.
Break the chain: To defeat cat’s paw, ensure that the unbiased final decisionmaker conducts a genuine independent review and hears the employee’s account. A brief, pre‑investigation conversation with a potentially biased subordinate does not suffice.
Consistency in peer review: Apply the same lookback window, selection criteria, anonymity safeguards, response opportunities, and reporting standards to all similarly situated professionals, regardless of employment status or protected activity.
Involve counsel carefully: If in‑house counsel leads a fact‑finding that becomes the predicate for discipline, counsel’s role can be that of a “biased subordinate” for cat’s paw purposes, potentially attributing animus to the ultimate decision.

For hospitals and health systems

Peer review is not a liability shield: Outsourcing to an external committee does not insulate the employer when the employer chooses which cases to send, controls the reporting decision, or treats physicians differently.
Mandatory‑reporting regimes: Where statutes or regulations require reporting (e.g., Kansas SOC‑3 and SOC‑4), a record of good‑faith, even‑handed application is critical. Reporting discretionary or ambiguous cases while withholding similar reports for comparators may evidence pretext.
Anonymity and process: Maintain true anonymity in peer review where promised, avoid selectively revealing identities, and document objective criteria for case selection and reporting.

For litigants

Plaintiffs: Evidence of unfair investigation, comparator treatment, and selective reporting can establish both prima facie causation and pretext. Temporal proximity strengthens the pretext showing when combined with other indicia.
Defendants: Break the causal chain with an independent, unbiased review, including a meaningful opportunity for the employee to respond, and contemporaneous documentation of reasons detached from any subordinate’s bias.

Complex Concepts Simplified

Cat’s paw theory: Think of the “biased subordinate” as the hand that places the paw of a neutral decisionmaker onto the hot stove. If the neutral decisionmaker simply follows the biased account without independent verification, the employer can be liable for the subordinate’s retaliatory motive.
Materially adverse vs. adverse employment action: Retaliation protection is broader. It covers actions that might dissuade a reasonable employee from complaining (e.g., reporting to a licensing board), not just changes in pay or duties.
But‑for causation: The question is whether the adverse action would have occurred in the absence of retaliatory animus. In cat’s paw, ask whether the biased subordinate’s act was an indispensable link in the chain that led to the action.
Prima facie and pretext: The prima facie case is a minimal threshold. The employer then provides a legitimate reason. The employee may show that reason is a cover (“pretext”) by pointing to inconsistencies, procedural irregularities, disparate treatment, or evidence undermining the investigation’s fairness.
Kansas SOC levels (peer review shorthand):
- SOC‑1: Standard met (not reportable).
- SOC‑2: Standard not met but no probable injury (not reportable).
- SOC‑3: Standard not met with injury or probable injury (mandatory report).
- SOC‑4: Possible grounds for discipline (mandatory report).

Why the District Court Was Reversed

Misapplied legal standards: It used discrimination’s “adverse employment action” and “proximate cause,” rather than retaliation’s “materially adverse” and “but‑for” standards.
Underestimated cat’s paw proof: It overlooked how a one‑sided investigation, followed by uncritical reliance by final decisionmakers, can establish causation and pretext.
Misidentified the decisionmaker for KBHA reporting: The employer (via Drs. Stucky and Green‑Cheatwood) selected cases, managed adverse findings, and chose which to report; the outside committee did not compel reporting.
Discounted comparator disparities and non‑mandatory reporting: The record supported inferences that Byrnes was treated less favorably than peers and that at least one reported case was not clearly mandatory.

Open Questions and Limits

No holding on ultimate liability: The court held only that a jury could find retaliation; it did not decide the merits.
Mandatory‑reporting safe harbors: While compliance with mandatory reporting will help employers, inconsistent application or selective over‑reporting can still support pretext.
Scope beyond healthcare: The materially‑adverse principle extends to other licensed professions (e.g., lawyers, accountants, engineers) where employer reports to regulators can affect licensure.

Conclusion

Byrnes materially advances Title VII retaliation law in two ways. First, it cements within the Tenth Circuit that reporting a professional to a state licensing authority can be a materially adverse action under Burlington Northern. Second, it provides a careful, fact‑sensitive roadmap for cat’s paw retaliation: biased and unfair investigations, followed by uncritical reliance by final decisionmakers who never hear the employee’s side, can supply the retaliatory animus and but‑for causation necessary to reach a jury.

For employers—especially health systems—this opinion underscores the need for even‑handed peer‑review and reporting protocols, genuine independent decisionmaking, and a meaningful opportunity for the accused to respond. For employees, it highlights the evidentiary value of showing one‑sided investigations, comparator disparities, and close timing. In remanding both retaliation claims and the state‑law claims, the Tenth Circuit signals that juries, not courts at summary judgment, should resolve these credibility‑laden disputes where the record evidences a plausible retaliatory chain.