Florida’s Fourth District Court of Appeal Explores “Cat’s Paw” Liability Theory in an Employment Law Whistleblower Retaliation Context

A former city employee filed a lawsuit against the defendant pursuant to section 112.3187(4)(a)-(b), Florida Statutes, where he alleged the City Commission’s termination of his employment violated Florida’s Whistleblower’s Act, (the pertinent part which says a government entity “shall not dismiss, discipline, or take any other adverse personnel action against an employee for disclosing information pursuant to the provisions of this section” and “shall not take any adverse action that affects the rights or interests of a person in retaliation for the person’s disclosure of information under this section”). At trial, the jury found in the employee’s favor after the judge denied the City’s motion for directed verdict. The basis of the City’s motion for directed verdict was that a plaintiff cannot prove improper animus for whistleblowing unless the plaintiff can prove intent to retaliate by a majority of the decision-makers. The employee argued the City has liability under the “cat’s paw” liability theory (derived from an old French fable): an employer (the cat) rubber stamps a discriminatory decision (goes into a fire and burns its proverbial paws) while a biased subordinate with no decision-making powers (conniving monkey) escapes unscathed with chestnuts. The Fourth District reversed the trial court and determined that the City had no liability under the cat’s paw theory here because the City Commission’s voting structure does not include a subordinate who lacks decision-making power as all three of the City’s Commissioners are decision-makers. 

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