A seventeenth-century French poet’s reinterpretation of an old fable, the Monkey and the Cat, tells the story of a monkey that persuades a cat to reach into a fire. The cat retrieves chestnuts, burning its paw in the process, and the monkey makes off with the tasty reward. Modern English speakers have derived the term “cat’s paw,” meaning “one used as a tool by another.” 

American courts have since adopted the metaphor. In a typical workplace discrimination case, when a supervisor terminates an employee due to racial animus, the employer is liable. Cat’s paw adds a twist. Even when the supervisor himself has no animus, if he (a cat) is influenced by another employee who does (a monkey), then the employer is still liable. 

Recently, in Jones v. City of Hutto, the Fifth Circuit denied a former city manager’s “cat’s paw” theory, reversing an $8 million verdict.  In this post, I suggest that the Fifth Circuit erred by conflating cat’s paw doctrine with respondeat superior liability, thus striking one tool from the dwindling toolbox that employees can use to hold government employers liable for discrimination. 

Background

The City of Hutto, Texas, hired Odis Jones in 2016 as its first Black city manager. In 2019, two city council candidates — Snyder and Rose — campaigned on the promise that they would “get rid of [Jones] and his staff.” They won. Jones faced much racial animus in the following months. After growing tensions, the city council and Jones entered a “without cause” separation agreement, which provided Jones with a year of salary and benefits. 

Snyder and Rose wouldn’t rest: They lobbied the rest of the city council to revoke the separation agreement. About a year after Jones separated, the council unanimously voted to rescind the agreement. The city demanded Jones return his salary and benefits.

Jones brought a claim under 42 U.S.C. § 1981, which protects against enforcement of contracts that have been impaired by discrimination. The statute does not provide a cause of action against government actors, so Jones brought an additional claim under § 1983.

The jury awarded Jones $8 million. The trial court found that the evidence was sufficient for the jury to conclude that Snyder and Rose (1) harbored racial animus; and (2) influenced the City Council’s vote. Jones won on the theory that Snyder and Rose (the monkeys) convinced the city council (the cats) to rescind the agreement, thus holding the city liable for discrimination.

Fifth Circuit’s Analysis 

The Fifth Circuit reversed. While Jones prevailed on § 1983’s requirements that “(1) an official policy (2) promulgated by the municipal policymaker (3) was the moving force behind the violation of the constitutional right,” the court held that Jones failed on his discriminatory intent theories.^[1]

The court rejected Jones’s cat’s paw claim. Under Monell v. Department of Social Services, plaintiffs cannot sue municipalities on a theory of respondeat superior. Respondeat superior “enables the imposition of liability on a principal for the tortious acts of his agent.” The Fifth Circuit held that “a close inspection of [cat’s paw] theory’s headwaters reveals…[it] is based in agency principles,” likening cat’s paw to respondeat superior. Cat’s paw “is…incompatible with Monell,” the court held, “and unavailable to Jones.” 

Cat’s Paw as Distinct from Respondeat Superior 

The Fifth Circuit’s analysis is flawed in three ways: (1) it concludes that because the Supreme Court has discussed agency principles in the “cat’s paw” context, there is no “daylight between respondeat superior and cat’s paw;” (2) on this flawed assumption, the court disregarded much of its own precedent; and (3) it failed to consider the Monell Court’s reasoning, which is inapposite here. 

First, while the Supreme Court has discussed “agency principles” in the context of cat’s paw, it has not once likened cat’s paw directly to respondeat superior. If the theories were so closely intertwined, one would think that the Court would have mentioned respondeat superior when it “blessed” cat’s paw in Staub v. Proctor Hospital (2011), or since. But it has not.

The Fifth Circuit relied on Judge Posner’s characterization of discrimination law when he first introduced “cat’s paw” in 1990. Judge Posner described employer liability for age discrimination in terms of respondeat superior, theorizing that the ADEA holds employers vicariously liable for an employee’s “intentional tort” of discrimination. Judge Posner then introduced “cat’s paw” with these agency principles in mind. But the Supreme Court’s, not the Seventh Circuit’s, understanding of discrimination law governs. 

While the Fifth Circuit points to a footnote in Staub that discusses “traditional agency principles,” the Court cast the thrust of cat’s paw as such: A plaintiff “s[eeks] to hold his employer liable for the animus of a[n employee] who was not charged with making the ultimate employment decision.” 

With this context in mind, “cat’s paw” and respondeat superior are fundamentally different doctrines. Cat’s paw holds the employerliable for its own discriminatory animus (imputed from the monkey to the cat). Respondeat superior, on the other hand, holds an employer vicariously liable for the tortious actions of its employees. No such vicarious liability undergirds cat’s paw.

Several circuits have examined whether Monell bars municipal liability in the cat’s paw context. While not all courts agree, some have “held or assumed that cat’s paw liability would be available under § 1983.” The Second, Sixth, Seventh, and Eighth Circuits have implied that cat’s paw could survive Monell.

Some district courts have, too. Just this year, the Southern District of Florida reasoned: “there is nothing in Monell and its progeny…that precludes municipal liability [under a cat’s paw theory].” It continued: “A final decision maker enacting a policy or sanctioning a process that allows itself to be used as a tool…for a person or persons with discriminatory animus is not respondeat superior liability at all. Monell liability is entirely consistent with a ‘cat’s paw theory,’ where the final decisionmaker — here, the Commission — abdicated its role…or knowingly affixed its imprimatur to a process so infected by racial discrimination that the municipality itself was a ‘but-for’ cause of the unconstitutional deprivation. That is not respondeat superior liability; rather, evidence that establishes a ‘cat’s paw theory’ can vindicate and overcome Monell.” The Fifth Circuit failed to grapple with these differences. 

Second, the Fifth Circuit’s own precedent augurs in favor of Jones. Since Staub, it has said that cat’s paw is “about whether the employers…can be held liable by imputing to those entities the unlawful motives of employees.” In Hutto, the Fifth Circuit acknowledged but discounted its “confusing language of ‘imputing motives’” as “imprecise[e],” redoubling its focus on “agency law.” The court should have instead contended with its own precedent.

Finally, Monell hesitated to hold a city liable based solely on the “employer-employee relationship with a tortfeasor.” The Court likely imagined a classic respondeat superior case — an employee negligently lights a cigarette at work, building the building down, and the employer is held liable — not this. 

Under traditional cat’s paw doctrine, the jury’s finding that Snyder and Rose infected the council with their racial animus would have been enough to hold the city liable. In the Fifth Circuit, no longer. 

^[1] Jones brought two theories of discrimination, a headcount theory and a cat’s paw theory. This post focuses exclusively on the latter.