                                       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

                                           2
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

                                         3
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

                                         4
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.

                                        5
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

                                          6
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.
                                           7
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).

                                          8
      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:


                                          9
      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

                                         11
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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