“The issue of which biased employees may subject their employer to cat’s paw liability has been percolating in the 14 lower federal courts since [Staub] with no definitive consensus emerging.”
How later courts described this case
- “The issue of which biased employees may subject their employer to cat’s paw liability has been percolating in the 14 lower federal courts since [Staub] with no definitive consensus emerging.”
Written by the judges who cited it.
The opinion
IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
STATE OF FLORIDA, NOT FINAL UNTIL TIME EXPIRES TO
DEPARTMENT OF FILE MOTION FOR REHEARING AND
CORRECTIONS, DISPOSITION THEREOF IF FILED
Appellant, CASE NO. 1D16-149
v.
CAROLANN BRACEWELL
AND TED JETER,
Appellees.
_____________________________/
Opinion filed May 19, 2017.
An appeal from the Circuit Court for Leon County.
James C. Hankinson, Judge.
Jeffrey Slanker and Robert J. Sniffen of Sniffen & Spellman, P.A., Tallahassee, for
Appellant.
Marie A. Mattox and Erika Esan Goodman of Marie A. Mattox, P.A., Tallahassee,
for Appellees.
PER CURIAM.
The Florida Department of Corrections (DOC) appeals a final judgment in
favor of Carolann Bracewell and Ted Jeter (Appellees) following a jury trial on their
complaint for violation of the Florida public sector Whistle-blower’s Act (FWA).
Appellees alleged that DOC terminated their employment in retaliation for
complaints they made to DOC’s Office of the Inspector General (OIG) concerning
one of its inspectors. Acknowledging that the decision makers at DOC who
terminated Appellees’ employment did not harbor any retaliatory animus, Appellees
proceeded under a cat’s paw theory of liability to hold DOC vicariously liable for
the biased actions of the OIG inspector. On appeal, DOC argues that the trial court
erred in denying DOC’s motions for a directed verdict and for judgment in
accordance with motion for directed verdict. Because we agree with DOC that the
cat’s paw theory of liability is inapplicable in this case as a matter of law, we reverse
and remand for the trial court to enter judgment in favor of DOC.
I.
Jeter was the Warden at Jackson Correctional Institution (JCI) and Bracewell
was the Assistant Warden. In July of 2011, two inmates sought medical attention
from JCI’s infirmary. The inmates were kept in the infirmary over the weekend and
were admitted to a hospital the following Monday. Following one of the inmate’s
complaint alleging he had received poor medical treatment, the OIG assigned
inspector Julie Mader to investigate the matter.
Soon thereafter, Appellees complained several times to Mader’s supervisors
about the way she was conducting the investigation and also accused her of HIPAA
violations and improperly accessing the driving records and history of Jeter and his
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brother. As a result of Appellees’ complaints, the OIG removed Mader from the
investigation in December of 2011 and assigned two new inspectors, Louis Cordova
and Michael Harrison, to the on-going investigation. Although Mader was no longer
permitted to actively participate in the investigation, she did confer with Cordova
and Harrison and provided them with clerical assistance, including typing
summaries of recordings of witness interviews for the final investigative report.
Mader had interviewed some witnesses by the time Cordova and Harrison took over
the investigation, but the majority of the interviews were conducted by the new
inspectors who also interviewed Appellees. In addition, Cordova and Harrison were
responsible for reviewing the accuracy of all witness interview summaries prepared
by Mader before they were included in the final report.
Through their investigation, Cordova and Harrison determined that Appellees,
along with other DOC employees, committed numerous violations of DOC policies.
The general content, specific findings, and final conclusions of the report were
reached solely by Cordova and Harrison. The report did not include disciplinary
recommendations for any of DOC’s employees.
In March of 2012, Cordova and Harrison submitted their report to the then-
Secretary of the DOC, Kenneth Tucker. Deputy DOC Secretary Michael Crews and
Assistant DOC Secretary over Institutions Tim Cannon reviewed the OIG’s report
and made recommendations to Secretary Tucker. Secretary Tucker was the decision
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maker who determined what, if any, tangible employment action would be taken
against DOC employees who were found to have violated DOC policies. Ultimately,
Secretary Tucker terminated Appellees’ employment in May of 2012.
Appellees filed a civil complaint against DOC alleging a single violation of
the FWA. Because there was no evidence of retaliatory bias by those DOC
employees who were involved in the decision to terminate Appellees (namely,
Secretary Tucker, Deputy Secretary Crews, and Assistant Secretary Cannon),
Appellees relied on the cat’s paw theory alleging that DOC was vicariously liable
for the biased actions of OIG inspector Mader. Appellees claimed that Mader
harbored retaliatory bias against them for reporting her misconduct during the
investigation and that she acted with the intent to cause DOC to terminate Appellees
by influencing the OIG’s final report. Thus, according to Appellees, Mader’s bias
should be imputed to DOC decision makers because DOC relied on the OIG’s
tainted investigation when making the final decision to terminate Appellees.
DOC moved for a directed verdict at the close of Appellees’ case and again at
the close of all evidence. Regarding the cat’s paw theory, DOC argued that in order
to find liability, the law required the decision maker to “rubber-stamp” the
recommendations of the individual with the biased retaliatory motive, and there was
no evidence that Mader or anyone at the OIG made any disciplinary
recommendations. The trial court denied both motions. The jury returned a verdict
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in favor of Appellees, and DOC moved for a new trial and for judgment in
accordance with the motions for directed verdict. In addition to its previous
arguments regarding the cat’s paw theory, DOC argued that the replacement of
Mader with inspectors Cordova and Harrison removed any potential taint and that
even if the cat’s paw theory could apply, there was no evidence that the alleged
actions of Mader were the proximate cause of Appellees’ termination. Relying on
Staub v. Proctor Hospital, 562 U.S. 411 (2011), DOC also argued that none of the
OIG employees were Appellees’ supervisors or had the authority to take any tangible
employment action against Appellees, and OIG’s investigation was independent
from DOC’s decision makers. The trial court denied those motions as well.
II.
This Court reviews denials of motions for directed verdicts and motions for
judgment in accordance with motions for directed verdict de novo. New Jerusalem
Church of God, Inc. v. Sneads Cmty. Church, Inc., 147 So. 3d 25, 28 (Fla. 1st DCA
2013). The evidence must be viewed in the light most favorable to the non-moving
party and every reasonable conclusion must be construed favorably to the non-
movant. Johnson v. Swerdzewski, 935 So. 2d 57, 60 (Fla. 1st DCA 2006).
III.
The FWA makes it unlawful for an employer to retaliate against an employee
because the employee has engaged in conduct protected by the statute. Robinson v.
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Dep’t. of Health, 89 So. 3d 1079, 1081 (Fla. 1st DCA 2012) (citing §§
112.3187(8)(a); 112.31895, Fla. Stat.). At trial, Appellees did not contend that the
decision makers in this case – Secretary Tucker, Deputy Secretary Crews, and
Assistant Secretary Cannon – were personally motivated by retaliatory animus in
their decision to terminate Appellees. Rather, Appellees’ position was that Mader
used these decision makers as a “cat’s paw” to effectuate her retaliatory intent.
The “cat’s paw” metaphor derives from a seventeenth-century French fable
involving a conniving monkey who convinces a cat to reach into a fire to retrieve
roasting chestnuts. The cat burns its paws in the process and the monkey escapes
unscathed with the chestnuts. In the employment law context, cat’s paw liability
refers to a situation in which a biased subordinate, who lacks decisionmaking power,
“clearly causes the tangible employment action, regardless of which individual
actually signs the employee’s walking papers.” Llampallas v. Mini-Circuits, Lab,
Inc., 163 F.3d 1236, 1249 (11th Cir. 1998). “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 burned—i.e., successfully sued.” Vasquez v. Empress Ambulance Serv., Inc., 835
F.3d 267, 272 (2d Cir. 2016) (citation omitted).
Relatively recently, the United States Supreme Court approved the application
of the cat’s paw theory in an employment discrimination case involving the
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Uniformed Services Employment and Reemployment Rights Act of 1994
(“USERRA”), 38 U.S.C. § 4311, a statute “very similar to Title VII.” Staub v.
Proctor Hosp., 562 U.S. 411, 417 (2011). In Staub, the Court considered “the
circumstances under which an employer may be held liable for employment
discrimination based on the discriminatory animus of an employee who influenced,
but did not make, the ultimate employment decision.” Id. at 413. Applying general
principles of agency law, the Court held that a plaintiff may establish cat’s paw
liability under USERRA “if a supervisor performs an act motivated by
[discriminatory] animus that is intended by the supervisor to cause an adverse
employment action, and if that act is a proximate cause of the ultimate employment
action.” Id. at 422 (footnote omitted). 1
A.
As a threshold matter, DOC argues that it cannot be held liable in this case
under a cat’s paw theory of liability because Mader did not hold a supervisory role
relative to Appellees. In support of its position, DOC emphasizes that the Supreme
Court expressly limited its holding in Staub to the discriminatory acts of a supervisor
1
Both parties submit that the standard in Staub is instructive in this case because the
FWA is analyzed in accordance with Title VII. However, neither party addressed the
extent to which the Supreme Court’s decision in University of Texas Southwestern
Medical Center v. Nassar, 133 S. Ct. 2517 (2013), holding that but-for causation is
the standard for proving retaliation in a Title VII case, alters the analysis in a cat’s
paw case.
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as the proverbial monkey. 562 U.S. at 422 n.4 (noting that “[w]e express 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”).
To be precise, the Court actually left the question open for another day. The issue of
which biased employees may subject their employer to cat’s paw liability has been
percolating in the lower federal courts since with no definitive consensus emerging.
B.
In evaluating the vicarious liability of an employer under the cat’s paw theory,
the Court in Staub was guided by general principles of agency law. 562 U.S. at 421.
The Court elaborated on the limiting principles of agency law by noting that an
employer is liable under cat’s paw causation only “when the supervisor acts within
the scope of his employment, or when the supervisor acts outside the scope of his
employment and liability would be imputed to the employer under traditional agency
principles.” Id. at 422 n.4 (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
758 (1998)). In Ellerth, the Court had previously defined the bounds of vicarious
liability in Title VII cases as encompassing employer liability for the acts of its
employees holding supervisory positions or other actual power to make tangible
employment decisions. Id. at 762 (holding that “[a]s a general proposition, only a
supervisor, or other person acting with the authority of the company,” can undertake
a tangible employment action).
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Subsequently, in Vance v. Ball State University, the Court answered the
question left unresolved by Ellerth: “who qualifies as a ‘supervisor’ in a case in
which an employee asserts a Title VII claim for workplace harassment?” 133 S. Ct.
2434, 2439 (2013). The Court held that
an employer may be vicariously liable for an employee’s unlawful
harassment only when the employer has empowered that employee to
take tangible employment actions against the victim, i.e., to effect a
“significant change in employment status, such as hiring, firing, failing
to promote, reassignment with significantly different responsibilities,
or a decision causing a significant change in benefits.”
Id. at 2443 (quoting Ellerth, 524 U.S. at 761). In setting the legal background for its
analysis, the Court noted that “an employer is directly liable for an employee’s
unlawful harassment if the employer was negligent with respect to the offensive
behavior,” and that courts generally apply that rule “when a co-worker harasses the
plaintiff.” Id. at 2441. When a supervisor is the harasser, different rules apply and
“an employer may be vicariously liable.” Id. (emphasis omitted). In its analysis, the
Court noted that its decision in Ellerth recognized that “‘most workplace tortfeasors
are aided in accomplishing their tortious objective by the existence of the agency
relation,’ and consequently ‘something more’ is required in order to warrant
vicarious liability.” Id. at 2447-48. The Court explained its position that negligence
was the more appropriate claim when the harassing employee is not a supervisor as
follows:
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The ability to direct another employee’s tasks is simply not sufficient.
Employees with such powers are certainly capable of creating
intolerable work environments, . . . , but so are many other co-workers.
Negligence provides the better framework for evaluating an employer’s
liability when a harassing employee lacks the power to take tangible
employment actions.
Id. at 2448 (internal citation to dissent omitted). In response to the plaintiff’s
contention that the Court’s definition of supervisor status would “encourage
employers to attempt to insulate themselves from liability for workplace harassment
by empowering only a handful of individuals to take tangible employment actions,”
the Court explained:
As an initial matter, an employer will always be liable when its
negligence leads to the creation or continuation of a hostile work
environment. And even if an employer concentrates all decisionmaking
authority in a few individuals, it likely will not isolate itself from
heightened liability under Faragher and Ellerth. If an employer does
attempt to confine decisionmaking power to a small number of
individuals, those individuals will have a limited ability to exercise
independent discretion when making decisions and will likely rely on
other workers who actually interact with the affected employee. Under
those circumstances, the employer may be held to have effectively
delegated the power to take tangible employment actions to the
employees on whose recommendations it relies.
Id. at 2452 (citations omitted) (emphasis added).2
2
We specifically do not address whether an employer may be held liable for an
employee’s retaliatory intent, regardless of the employee’s role within the
organization, under a negligence-based approach to cat’s paw liability. See Vasquez
v. Empress Ambulance Serv., Inc., 835 F.3d 267, 273-74 (2d Cir. 2016) (holding that
an employer may be liable under Title VII “when, through its own negligence, the
employer gives effect to the retaliatory intent of one of its – even low-level –
employees”). Such a theory was not advanced in this case.
10
Turning back to the case at hand, Appellees have not directed this Court to
any case of precedential value that has extended the outer contours of vicarious
liability beyond a supervisor or a subordinate with authority to recommend or take
tangible employment action. As persuasive authority for their position, Appellees
rely on an unreported decision by the United States District Court for the Middle
District of Alabama to support their argument that cat’s paw liability is appropriate
in this case. See Shirley v. Hyundai Motor Mfg. Ala., LLC, No. 2:15cv346-WHA,
2016 WL 3007139 (M.D. Ala. May 24, 2016). In that case, the plaintiff’s co-worker
complained of racial discrimination to Hyundai’s Team Relations Department. Id. at
*2. That department conducted an investigation and prepared a memo confirming
the co-worker’s allegations, but it did not make any disciplinary recommendations.
Id. The memo was reviewed by the head of the Human Resources Department who
then decided to demote the plaintiff. Id. at *3. Relying on the cat’s paw theory, the
plaintiff alleged that the memo was drafted by a biased non-supervisory investigator
within the Team Relations Department who manipulated the head of the Human
Resources Department into taking disciplinary action against the plaintiff. Id. at *4.
Although the court denied a summary judgment motion for the employer, there is no
analysis of agency principles of liability and the decision does not mention the
Supreme Court’s decision in Staub. See id. at *6. Nor is there any discussion of the
organizational hierarchy or interrelationship between the two departments at
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Hyundai, though it appears that they were within the same chain of command. Id.
IV.
Applying the cat’s paw theory of liability to the facts of this case would
require us to stretch the bounds of existing authority in a manner that would arguably
have no limiting principles. While Mader was involved in the investigation of
Appellees’ misconduct at some level, she was not Appellees’ supervisor, she did not
have apparent or delegated authority to take tangible employment action against
Appellees, and she was not empowered by DOC or the OIG to make findings of fact
or recommendations regarding Appellees’ discipline. Stated differently, there was
nothing provided by Mader for DOC to rubber-stamp or blindly follow, and
therefore any retaliatory animus that she possessed could not have resulted in
vicarious liability to DOC under the cat’s paw theory. Because the trial court erred
in denying DOC’s motions, we reverse and remand the case for entry of a judgment
in favor of DOC. This ruling renders moot the remaining issue on appeal.
REVERSED and REMANDED.
WOLF, RAY, and MAKAR, JJ., CONCUR.
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