State v. Bracewell
| Decision Date | 19 May 2017 |
| Docket Number | CASE NO. 1D16–149 |
| Citation | 220 So.3d 1228 |
| Parties | STATE of Florida, Department of Corrections, Appellant, v. Carolann BRACEWELL and Ted Jeter, Appellees. |
| Court | Florida District Court of Appeals |
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.
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.
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 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 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 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, 131 S.Ct. 1186, 179 L.Ed.2d 144 (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.
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).
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. 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 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, 131 S.Ct. 1186, 179 L.Ed.2d 144 (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, 131 S.Ct. 1186. 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, 131 S.Ct. 1186 (footnote omitted).1
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 as the proverbial monkey. 562 U.S. at 422 n.4, 131 S.Ct. 1186 (). 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.
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...the "cat's paw" theory of liability advanced by Appellee at trial is largely foreclosed by this court's decision in State v. Bracewell , 220 So.3d 1228 (Fla. 1st DCA 2017),1 and was not otherwise supported by the evidence. Accordingly, we reverse the final judgment and remand for entry of j......