An ambulance service may be liable for damages arising from sexting by a monkey it employed, the Second Circuit ruled on August 29.
Actually, the monkey was a man, but the court sided with a female employee who sued the ambulance service under the “cat’s paw” theory. The theory’s name comes from an Aesop fable in which a monkey persuades a cat to burn its paw pulling chestnuts from a fire, and then the monkey eats all the chestnuts. Under this theory an employer is like the cat: it doesn’t have a bad motive but allows itself to be manipulated by an employee, who, like the monkey, has an ulterior motive .
Here’s what happened, according to Andrea Vasquez’s complaint: A dispatcher texted unwanted sexual photos to her. She filed a formal complaint, and her employer promised to investigate. The dispatcher learned of her complaint and gave the employer documents—copies of texts including a photo–he had fabricated to show Andrea’s consent and solicitation of sex. The employer accepted the dispatcher’s story, rejected Andrea’s denial, her request to see the photo, and her offer to show her own cell phone as proof of her position. Then the employer fired Andrea for—believe it or not–sexual harassment.
Andrea sued under Title VII and the corresponding state statute, claiming she was fired for complaining about sexual harassment and seeking damages under the cat’s paw theory.
The district court dismissed her complaint, ruling that an employer couldn’t be held responsible for the retaliatory motivation of a low-level employee with no decision-making authority.
Andrea appealed. The Second Circuit noted that the cat’s paw theory clearly applies when the monkey (i.e., the employee) manipulating the cat (i.e., the employer) is a supervisor, so the question was whether the theory applies when the monkey is below the supervisor level. The court had no difficulty deciding that the answer is yes, ruling that Andrea may recover if the employer was negligent in allowing the dispatcher’s “false allegations, and the retaliatory intent behind them, to achieve their desired end.”
The case is Vasquez v. Empress Ambulance Service, Inc., No. 15-3239-cv (Aug. 29, 2016).
The monkey in the fable didn’t have a motive to harm a third party. The only party harmed was the cat. And the harm to the cat was only incidental to the monkey’s real motive, which was simply to obtain the chestnuts without getting burned himself.