Cat’s Paw Liability Cannot Satisfy the Rehabilitation Act’s “Solely by Reason of” Standard: Harmon v. Collier (5th Cir. 2025)

Introduction

In Harmon v. Collier, the Fifth Circuit addressed multiple facets of disability employment litigation against a state employer, issuing a multipart decision with significant doctrinal consequences. The plaintiff, Kimberly Harmon, was a long-serving Texas correctional officer who suffers from diabetes, hypertension, and chronic back pain. After a shift-change dispute, protracted leave accounting issues, and a disputed termination based on leave exhaustion, she sued the Executive Director of the Texas Department of Criminal Justice (TDCJ) under the Americans with Disabilities Act (ADA) for injunctive relief and TDCJ under Section 504 of the Rehabilitation Act for damages. A jury found for Harmon on all counts and awarded $1.8 million, later reduced to $1 million in light of Cummings v. Premier Rehab (barring emotional distress damages under spending-clause statutes).

On appeal, TDCJ and its Executive Director challenged sufficiency of the evidence, verdict consistency, sovereign immunity, damages, and attorney’s fees. The court affirmed much of the liability verdict but reversed on sovereign immunity as to the ADA claim, trimmed the failure-to-rehire discrimination theory, rejected the “irreconcilable verdict” challenge, and vacated the monetary award for recalculation due to inclusion of pension/annuity amounts that must be treated, if at all, as equitable front pay rather than back pay.

Summary of the Opinion

ADA sovereign immunity: The judgment against Bryan Collier (official capacity) on the ADA claim cannot stand because the only relief entered was monetary. Title I ADA claims against a state are barred by sovereign immunity absent valid waiver; the Ex parte Young exception sustains only prospective injunctive relief. Once it became clear only money would be awarded, the ADA claim had to be dismissed. The district court’s refusal to alter the judgment under Rule 59(e) was an abuse of discretion.
Rehabilitation Act liability (termination and failure to accommodate): Affirmed. Sufficient evidence showed Harmon was a “qualified individual” and that TDCJ failed to engage in a good-faith interactive process before terminating her, constituting discrimination under the Rehabilitation Act (via the ADA’s standards). The court emphasized that failure to accommodate does not require proof of employer intent.
Rehabilitation Act retaliation (termination): Affirmed. Despite a seven-month gap from earlier EEO activity, additional evidence of procedural irregularities and the immediate proximity to her May 31 doctor’s note supported but-for causation.
Failure to rehire:
- Retaliation: Affirmed on a “cat’s paw” theory. The court held that cat’s paw liability is available for Rehabilitation Act retaliation claims (which require but-for causation), and a reasonable jury could find that a biased recommender’s views were a but-for cause of the final decision.
- Discrimination: Reversed as a matter of law. In a new and significant holding, the court concluded that cat’s paw liability is incompatible with the Rehabilitation Act’s “solely by reason of” causation standard for discrimination claims, because a biased subordinate’s animus cannot be the sole cause when a separate decisionmaker independently adopts the recommendation.
Verdict consistency: The panel rejected the contention that the jury’s “solely by reason of disability” findings are irreconcilable with its “but for retaliation” findings. The verdict was treated as general, and any inconsistency objection was waived by not raising it before the jury was discharged. In any event, the showing fell short of plain error.
Damages: Vacated and remanded. The $1 million back pay award appears to include pension/annuity amounts (approximately $862,000) that could not be received within the back pay period and are, if anything, front pay (an equitable remedy). The district court must segregate properly compensable back pay from any forward-looking pension elements, apply the correct remedy form, and consider remittitur or a limited new trial on damages.
Attorney’s fees: Reversed as to Collier (no prevailing-party status remains after dismissal of ADA claims) and remanded for recalculation as to TDCJ in light of the altered degree of success.

Analysis

Precedents Cited and How They Shaped the Decision

Garrett (Board of Trustees v. Garrett, 531 U.S. 356): Confirms states are immune from Title I ADA damages suits. This undergirds dismissal of the ADA monetary judgment against Collier once only money remained in play.
Edelman v. Jordan, 415 U.S. 651: Sovereign immunity can be raised for the first time on appeal, defeating any waiver claim by the plaintiff.
Cummings v. Premier Rehab, 596 U.S. 212: Emotional distress damages are unavailable under the Rehabilitation Act; the district court had already excluded the jury’s $800,000 for emotional distress accordingly.
Carmona v. Southwest Airlines, 604 F.3d 848 (5th Cir. 2010): A linchpin for the “qualified individual” analysis. Even when physical presence is essential, an employee may still be “qualified” if the employer’s own leave/attendance regime is sufficiently lenient and the employee can perform when present. The Fifth Circuit deemed TDCJ’s LWOP paradigm functionally lenient in practice.
Weber v. BNSF Ry., 989 F.3d 320 (5th Cir. 2021): Distinguished. There, a strict attendance policy was enforced; here, the record supported the jury’s view of a lenient or inconsistently applied LWOP policy.
Loulseged v. Akzo Nobel, 178 F.3d 731; Cutrera v. LSU, 429 F.3d 108: Employers must engage in a good-faith interactive process; preemptive termination that forecloses that process can itself violate the ADA/Rehab Act.
Bennett-Nelson v. Louisiana Bd. of Regents, 431 F.3d 448: For failure-to-accommodate, the employer’s intent is irrelevant; the violation turns on failure to accommodate, not animus.
EEOC v. Chevron Phillips, 570 F.3d 606: “Context matters” when assessing whether an accommodation request was made. Past practice and similar medical notes can make a short, simple note a sufficient request.
EEOC v. Dolgencorp, 899 F.3d 428 (6th Cir. 2018): Persuasive authority: denying a reasonable accommodation under a neutral policy can constitute direct evidence of discrimination; an employer cannot refuse accommodation and then invoke that same policy as a neutral justification for firing.
January v. City of Huntsville, 74 F.4th 646 (5th Cir. 2023): Rehabilitation Act retaliation claims require but-for causation via the ADA standards.
Zamora v. City of Houston, 798 F.3d 326 (5th Cir. 2015): Cat’s paw is compatible with but-for causation for retaliation claims; a biased subordinate’s animus can be a but-for cause if it drives the decision.
Team Contractors v. Waypoint NOLA, 976 F.3d 509: Guidance for distinguishing general versus special verdicts. The court treated the verdict here as general, triggering waiver of inconsistency objections not raised before discharge.
Miller v. Raytheon, 716 F.3d 138: Pension and similar benefits dependent on continued employment are forward-looking and typically treated as equitable front pay, not back pay—unless discounted to present value to reflect actual loss during the back pay period.
Groff v. DeJoy, 600 U.S. 447: Cited to underscore that “undue hardship” requires exploring alternatives (e.g., voluntary swaps). The court did not decide Groff’s applicability to Rehabilitation Act undue hardship but flagged the principle.

Legal Reasoning

1) Sovereign Immunity and the ADA Claim Against a State Official

Harmon sued Collier (Executive Director) in his official capacity under the ADA seeking prospective relief (reinstatement), which would fit Ex parte Young. But when the ultimate relief became purely monetary, sovereign immunity barred the claim. The court held the district court should have dismissed the ADA claim once it was clear that only damages would be awarded, and its refusal to correct the judgment under Rule 59(e) was an abuse of discretion. This also impacted fee exposure against Collier, which was reversed.

2) “Qualified Individual” Under the Rehabilitation Act

The central dispute was whether Harmon—given substantial leave usage—was “qualified.” TDCJ’s job description made physical presence seemingly essential. But the court emphasized the Carmona principle: if an employee can perform the job when present, and the employer’s attendance/leave regime is lenient in practice, a jury can find the employee “qualified” despite irregular attendance. Evidence showed TDCJ’s LWOP policy (up to 180 days on a rolling 12-month basis) functioned as an entitlement in practice and was rarely denied, and that Harmon performed satisfactorily when present. That sufficed under the deferential standard.

3) Discrimination via Failure to Accommodate and Termination

The Rehabilitation Act incorporates ADA standards; so failure to engage in an interactive process and to provide a reasonable accommodation can be discrimination. The court highlighted:

No intent requirement for failure-to-accommodate: Following Bennett-Nelson, the cause of the failure is irrelevant. That undercut defense arguments that there was no discriminatory animus.
Direct evidence via refusal to accommodate: Drawing on Dolgencorp, when an employer denies a reasonable accommodation and then invokes a neutral policy (here, the LWOP cap) to justify termination, the denial itself can be direct evidence of discriminatory discharge—foreclosing the need for animus proof.
Nature of the accommodation requested: The jury could reasonably find Harmon requested one additional day (based on the May 31 doctor’s note) rather than indefinite leave. “Context matters”: similar prior notes had been treated as accommodation requests. HR’s mishandling (failing to forward the note, proceeding with separation anyway) supported the jury verdict.
Undue hardship: The record did not compel a finding of undue hardship. The warden testified to waitlists for overtime; the agency conceded to EEOC that a workable accommodation was possible had the process occurred.

4) Retaliation (Termination) and Causation

Although seven months separated Harmon’s 2017 EEO complaint from her termination, that gap was not dispositive given:

Evidence of procedural anomalies and failure to follow policy in processing Harmon’s May 31 note;
The immediate temporal proximity between the May 31 note (a protected accommodation request) and the termination machinery;
Conflicting testimony suggesting hostility about her prior complaints (e.g., the alleged “leave law” statement).

Combined, this circumstantial record allowed a reasonable jury to find but-for retaliation. The appellate court emphasized the standard of review: credibility calls belonged to the jury.

5) Failure to Rehire: Retaliation Survives; Discrimination Fails

The court drew a sharp doctrinal line:

Retaliation: Cat’s paw theory is compatible with Rehabilitation Act retaliation claims (incorporating ADA’s but-for standard). A reasonable jury could find that Werner’s biased recommendation was a but-for cause of the ultimate decision by Hirsch, who followed it.
Discrimination: In a new holding, the panel concluded that cat’s paw is incompatible with the Rehabilitation Act’s “solely by reason of” requirement for discrimination. Because the decisionmaker’s independent act of adopting a subordinate’s recommendation is itself a causal component, the subordinate’s animus cannot be the “sole” cause. The failure-to-rehire discrimination theory therefore fails as a matter of law.
- Note on separate opinions: Judge Dennis dissented from this portion, arguing waiver and that cat’s paw can coexist with sole-causation (analogizing to Staub and out-of-circuit authority). But Judge Ho joined the principal opinion on this point, creating a majority holding.

6) Verdict Consistency and Preservation

The employer insisted the verdict was logically irreconcilable because the jury found “solely by reason of disability” (discrimination) and also “but-for retaliation” (retaliation) for the same adverse actions. The majority treated the verdict as a general verdict and applied the preservation rule: objections to conflicts between a general verdict and written answers must be raised while the jury is still empaneled. No timely objection was made, so the issue was waived; and even under plain-error review, reversal was unwarranted. Judge Ho dissented on this point, but Judge Dennis sided with the principal opinion, producing a majority to reject the inconsistency challenge.

7) Damages: Back Pay vs. Front Pay and Pension/Annuity Treatment

The $1 million award for “wages and benefits from May 31, 2018 to April 7, 2022” appears to include approximately $862,000 from an ERS pension/annuity projection conditioned on future years of service (earliest 2029 receipt). Under Miller v. Raytheon, forward-looking pension streams dependent on continued employment are typically equitable front pay, not back pay, unless appropriately discounted to present value for the back pay period. The record lacked such proof. The panel vacated and remanded:

The district court must identify what, if any, ERS-related amounts properly qualify as back pay for the defined period;
Apply remittitur or, at Harmon’s option, conduct a new trial limited to damages if the award is reduced;
Address any equitable front pay issues separately and correctly.

8) Attorney’s Fees

The fee award against Collier was reversed because Harmon is no longer a prevailing party against him (the ADA claim is dismissed). As to TDCJ, the district court must reassess fees under Hensley’s “degree of success” standard in light of the narrowed judgment (elimination of ADA and potential reduction of damages).

Impact and Practical Implications

New Fifth Circuit precedent on cat’s paw and the Rehabilitation Act: Plaintiffs may not rely on cat’s paw to prove discrimination claims under § 504 that require “solely by reason of” causation. By contrast, cat’s paw remains viable for retaliation claims requiring but-for causation. This is a significant doctrinal development that will shape pleading, proof, and jury instructions in Rehabilitation Act cases.
Leave/attendance policies and “qualified” status: Employers that run permissive or inconsistently enforced leave regimes risk a jury finding that employees who can perform when present remain “qualified,” even where presence is functionally essential to the role.
Interactive process discipline: Failing to timely route or consider a doctor’s note as a request for accommodation—especially where prior practice treated similar notes as such—can create direct evidence of discrimination and support retaliation claims. HR compliance and training are critical.
Verdict-structure and preservation: Defense counsel should object to potential inconsistencies before the jury is discharged, or risk waiver when a verdict is treated as general. Consider requesting truly special verdicts where inconsistent findings are a foreseeable risk.
Damages architecture: Pension and annuity projections tied to continued service generally belong in equitable front pay, not back pay, unless carefully discounted and proven as losses for the back pay period. Plaintiffs should build a record (actuarial/present value evidence) and plead equitable remedies expressly. Defendants should object to improper inclusion and request limiting instructions.
State employers and ADA litigation: When suing state agencies, plaintiffs must anchor ADA suits in prospective injunctive relief against officials to avoid sovereign immunity. If the remedy shifts to money only, the ADA claim will fall—and so may fee recovery against the official.
Undue hardship under disability law: Although not resolved here, Groff’s emphasis on exploring alternatives before claiming undue hardship may influence future Rehabilitation Act/ADA undue hardship defenses in the Fifth Circuit.

Complex Concepts Simplified

“Cat’s paw” liability: A biased subordinate (without final authority) manipulates the neutral decisionmaker into taking adverse action; the subordinate’s bias is treated as the cause. It is available for Rehabilitation Act retaliation (but-for causation), but the Fifth Circuit now holds it cannot satisfy the statute’s “solely by reason of” standard for discrimination claims.
“Solely by reason of” vs. “but-for” causation: “Solely” means disability must be the only reason for the adverse action; “but-for” means the action would not have occurred in the absence of the protected factor, but other causes may coexist.
General vs. special verdict: A general verdict applies the law to facts and decides who wins; inconsistency objections must be raised before the jury is discharged. A special verdict provides only factual findings; the court then applies the law. The Fifth Circuit treated this verdict as general, triggering waiver.
Back pay vs. front pay: Back pay compensates for past wages/benefits lost up to judgment. Front pay is an equitable remedy for post-judgment or future loss when reinstatement is unavailable. Pension streams dependent on continued service tend to be front pay unless proven otherwise.
Interactive process: A collaborative employer-employee dialogue to identify reasonable accommodations for known disabilities. Short-circuiting this process before considering feasible options risks liability.
Ex parte Young and sovereign immunity: Plaintiffs can sue state officials for prospective relief (e.g., reinstatement) to halt ongoing violations, but not for money damages. If only damages are sought/awarded, sovereign immunity bars the claim.

Conclusion

Harmon v. Collier is a consequential Fifth Circuit decision that both reinforces established disability law principles and sets new boundaries. The court reaffirmed that failure to accommodate—especially when an employer truncates the interactive process—can supply direct evidence of discrimination and that “context matters” in evaluating accommodation requests. It also clarified that lenient or inconsistently enforced leave regimes can sustain an employee’s “qualified” status despite attendance problems.

Two rulings are especially noteworthy. First, the court held that cat’s paw liability is not available for Rehabilitation Act discrimination claims because the statute’s “solely by reason of” standard cannot be satisfied through a subordinate-bias theory filtered by an independent decisionmaker. Second, it tightened the treatment of pension and annuity components within damages: amounts contingent on future service are not back pay within a fixed historical period and must be handled, if at all, as equitable front pay upon proper proof.

For litigants and courts in the Fifth Circuit, Harmon offers concrete guidance on sovereign immunity, verdict preservation, causation standards, damages structuring, and the employer’s duty to engage in the interactive process. It therefore stands as a major reference point for future Rehabilitation Act and ADA litigation against state employers in this circuit.