Jones v. City of Hutto

Case: 24-50096 Document: 86-1 Page: 1 Date Filed: 10/07/2025

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

____________ Fifth Circuit

FILED

No. 24-50096 October 7, 2025

____________

Lyle W. Cayce

Clerk

Odis Jones,

Plaintiff—Appellee,

versus

City of Hutto,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:20-CV-1210

______________________________

Before Richman, Graves, and Ramirez, Circuit Judges.

Priscilla Richman, Circuit Judge:

Odis Jones, a black man, ended his tenure as City Manager of Hutto,

Texas under a separation agreement that provided him with a severance

payment, a non-disparagement provision, and other contractual rights. This

parting of ways came as a result a prolonged conflict, primarily with

Councilmembers Mike Snyder and Tanner Rose, that bore an alleged racial

character. After Jones’s departure, councilmembers allegedly disparaged

him, and the City Council ultimately voted to rescind the separation

agreement. The City of Hutto argues this was pursuant to a legal opinion by

the City Attorney that the agreement was void or voidable. Jones argues it

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No. 24-50096

was because of racial animus and that the City’s actions have severely

affected his employment prospects.

Jones brought a 42 U.S.C. § 1981 claim, alleging a racially motivated

impairment of his contract rights and a breach of contract claim under Texas

law. The jury found for Jones on both claims, and the district court entered

a judgment in favor of Jones. We affirm the district court’s judgment in part,

reverse in part, and remand for further proceedings.

I

A

The City of Hutto hired Odis Jones as its first black city manager in

2016. Jones worked closely with the seven elected members of the Hutto

City Council. The City, a neighbor of Austin, felt the effects of the larger

city’s growth. This caused a rift in local politics between the “pro-growth”

and “anti-growth” factions. The “pro-growth” faction wanted to attract

development and businesses and the “anti-growth” faction was concerned

that development would affect the City’s culture and infrastructure. Jones

aligned himself with the “pro-growth” contingent. He led efforts that

included improving the City’s water system, restructuring the police

department, and bringing a $1.5 billion development project to the City, the

largest in its history.

Jones was not without opposition, however. In May 2019, two new

“anti-growth” councilmembers, Mike Snyder and Tanner Rose, won

election after mounting campaigns allegedly aimed at “get[ting] rid of the

city manager and his staff.” Snyder’s frustration with Jones initially

concerned a perceived lack of transparency and suspicion of improper

dealing. Later, two investigations unearthed no impropriety by Jones.

Tensions mounted that took on an alleged racial character and Jones reported

race-based discrimination by Snyder and Rose to the City Council in August

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2019. The situation did not resolve and the parties began to discuss parting

ways. In November 2019, the City Council entered into a separation

agreement with Jones by a five-vote majority (5-1), noting the split was

“without cause.” Rose cast the lone “nay” vote and Snyder was absent and

did not vote. In accordance with Jones’s employment agreement, the

separation “without cause” provided him with twelve months of salary and

health benefits, $412,000 in total. The separation agreement also contained

a mutual non-disparagement clause and a mutual waiver of then-existing legal

claims.

The next day, the City released a statement announcing this news and

praising Jones for his tenure as City Manager. Snyder and Rose, however,

voiced their dissenting opinions in a “press release” posted to Snyder’s

candidacy Facebook page. Jones alleges this began a “campaign” by Snyder

and Rose to have the City Council retract the separation agreement.

Ultimately, in December 2020, the Council unanimously voted to adopt a

resolution that purportedly rescinded the separation agreement pursuant to

a legal opinion by the City Attorney that it was defectively executed and thus

void. The City argues it focused on the separation agreement’s validity

because the City was experiencing a budget shortfall and an audit identified

the agreement as a cost. After the City voted to rescind the agreement, the

City Attorney sent the resolution and a demand letter to Jones demanding

the return of $412,000 received under the separation agreement.

A week later, Jones filed this suit in federal court. By trial, the claims

had narrowed to a civil rights claim under 42 U.S.C. § 1981 and a state-law

breach of contract claim. The parties both moved for summary judgment on

the separation agreement’s validity; the court granted Jones’s motion,

declaring the contract valid and enforceable. The case then proceeded to

trial. At the close of evidence, the City moved for judgment as a matter of

law under Rule 50(a), which the court denied. The court submitted Jones’s

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§ 1981 and Texas breach of contract claims to the jury. The jury returned a

verdict for Jones on both claims, awarding him $8 million for the § 1981 claim

and $4.5 million for breach of contract, upon which the court entered final

judgment.

The City filed a renewed motion for judgment as a matter of law under

Rule 50(b) and a motion for new trial or remittitur under Rule 59. 1 The court

denied the renewed motion for judgment as a matter of law but suggested

remittitur because a statute barred all breach of contract damages except for

attorney fees and Jones did not segregate his attorney fees between the

claims, risking double recovery. The court suggested that Jones seek

attorney fees by post-trial motion. Jones accepted remittitur totaling $5

million and filed a motion for attorney fees. The City now appeals the denial

of judgment as a matter of law as to both the § 1981 claim and the breach of

contract claim.

B

We review the district court’s denial of judgment as a matter of law de

novo. 2 We apply the same standard as the district court, found in Rule 50(a),

directing judgment as a matter of law if “a party has been fully heard on an

issue during a jury trial and the court finds that a reasonable jury would not

have a legally sufficient evidentiary basis to find for the party on that issue.” 3

Here, we should reverse the district court “only if ‘the facts and inferences

point so strongly and overwhelmingly in favor of [Hutto]’” that it was

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1

Fed. R. Civ. P. 50(b), 59.

2

Broussard v. State Farm Fire & Cas. Co., 523 F.3d 618, 624 (5th Cir. 2008).

3

Fed. R. Civ. P. 50(a).

4

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unreasonable for the jury to find for Jones. 4 Deference to the trier of fact

requires us to “consider all of the evidence, drawing all reasonable inferences

and resolving all credibility determinations in the light most favorable to the

non-moving party,” Jones. 5

II

For Jones’s civil rights claim, there are two statutes in play: 42 U.S.C.

§§ 1981 and 1983. First, § 1981 protects, among other rights, the right “to

make and enforce contracts” 6 against discriminatory “impairment.” 7

Subsection (b) broadly defines “make and enforce contracts” as “the

making, performance, modification, and termination of contracts, and the

enjoyment of all benefits, privileges, terms, and conditions of the contractual

relationship.” 8

However, because § 1981 does not provide an independent cause of

action against local government entities, plaintiffs must bring a claim under

42 U.S.C. § 1983. 9 Under § 1983, municipalities “cannot be found liable on

a theory of vicarious liability or respondeat superior.” 10 So, the

unconstitutional conduct must be “directly attributable to the municipality

through some sort of official action or imprimatur,” whereas “isolated

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4

Broussard, 523 F.3d at 624 (quoting Brown v. Bryan County, 219 F.3d 450, 456 (5th

Cir. 2000)).

5

Id. (quoting Brown, 219 F.3d at 456).

6

42 U.S.C. § 1981(a).

7

42 U.S.C. § 1981(c).

8

42 U.S.C. § 1981(b).

9

Oden v. Oktibbeha County, 246 F.3d 458, 462-63 (5th Cir. 2001).

10

St. Maron Props., L.L.C. v. City of Hous, 78 F.4th 754, 759-60 (5th Cir. 2023)

(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978)); Jett v. Dallas Indep. Sch. Dist.,

491 U.S. 701, 735 (1989).

5

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unconstitutional actions by municipal employees will almost never trigger

liability.” 11 To prevail, a plaintiff must establish that “(1) an official policy

(2) promulgated by the municipal policymaker (3) was the moving force

behind the violation of a constitutional right.” 12

A

Jones satisfies § 1983’s requirements. For the first prong, “written

policy statements, ordinances, or regulations” suffice to establish a

municipal policy for purposes of liability. 13 The Supreme Court has held that

a single decision “may represent ‘an act of official government policy’” if

made by an authorized decisionmaker. 14 Here, the resolution adopted by the

City Council rescinding the separation agreement is such a policy. 15

Next, a “policymaker” is the person or entity that “possesses final

authority to establish municipal policy with respect to the action ordered.” 16

This is a question of state law, aided by looking at relevant municipal

charters. 17 Hutto’s Charter provides “all powers of the City . . . shall be

vested in an elected council, . . . the ‘City Council,’ which shall enact local

legislation, adopt budgets, determine policies and appoint the City Manager”

and “vest[s] all authority . . . of [City Manager] suspension or removal in the

_____________________

11

Webb v. Town of Saint Joseph, 925 F.3d 209, 214 (5th Cir. 2019).

12

Id.

13

Id.at 215.

14

Advanced Tech. Bldg. Sols., L.L.C. v. City of Jackson, 817 F.3d 163, 165 (5th Cir.

2016) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986)).

15

See, e.g., Owen v. City of Independence, 445 U.S. 622, 628-29 (1980) (City Council

passed resolution firing plaintiff).

16

Brady v. Fort Bend County, 145 F.3d 691, 698 (5th Cir. 1998) (quoting Pembaur,

475 U.S. at 484).

17

St. Maron Props., L.L.C. v. City of Houston, 78 F.4th 754, 761 (5th Cir. 2023).

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City Council.” Here, the policymaker for the resolution is the Hutto City

Council.

Lastly, regarding § 1983, we have treated “moving force” as a “direct

causal link between the municipal policy and the constitutional

deprivation.” 18 Here, there is no question on the link between the policy (the

resolution) and the deprivation (the impairment of contract rights); the

resolution is the very instrument that purported to void Jones’s rights under

the separation agreement.

B

Advancing from § 1983, a § 1981 plaintiff must establish: “(1) [H]e is

a member of a racial minority; (2) the defendant had an intent to discriminate

on the basis of race; and (3) the discrimination concerned one or more of the

activities enumerated in the statute.” 19 Jones is black, and the parties do not

dispute this element. Elements two and three are in contest. The claim

resolves on whether the impairment, if any, was racially motivated.

To prevail on his § 1981 claim, Jones must “ultimately prove that, but

for race, [he] would not have suffered the loss of a legally protected right.” 20

Importantly, “[a] plaintiff can prove intentional discrimination through

either direct or circumstantial evidence” as direct evidence of racial

discrimination is often scarce. 21 In addition, because of Monell’s 22 bar on

respondeat superior in § 1983 claims against municipalities, Jones must show

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18

Piotrowski v. City of Houston, 237 F.3d 567, 580 (5th Cir. 2001).

19

Perry v. VHS San Antonio Partners, L.L.C., 990 F.3d 918, 931 (5th Cir. 2021).

20

Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 589 U.S. 327, 341 (2020).

21

Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001).

22

Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

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that the “animus is [] chargeable to the [b]oard itself.” 23 Jones argues that

discriminatory intent is demonstrated by either (1) a headcount analysis or

(2) a “cat’s paw” analysis. Jones’s claim fails.

1

Under a headcount analysis, Jones must present sufficient evidence

demonstrating race was a but-for reason of a “majority” (four of the six) of

the councilmembers’ votes to rescind the separation agreement. 24 Jones

argues at length that both Councilmembers Snyder and Rose bore racial

animus due to several comments and interactions. We assume arguendo that

Snyder and Rose did act from animus.

Councilmember Robin Sutton won a seat on the City Council after the

separation agreement and voted in favor of the resolution. Prior to her

election, she vocally supported Snyder and Rose and opposed Jones at City

Council meetings. She won election after councilmembers resigned their

positions because of alleged “harassment” from the “anti-Odis” contingent.

None of these instances cited by Jones contain anything indicating racial

animus chargeable to Sutton.

Councilmembers Patti Martinez and Peter Gordon are similarly

situated. Both voted for the resolution despite having voted for the

separation agreement. Martinez and Gordon joined with Snyder on post-

Jones actions including opening an investigation into the City Manager role,

initiating a forensic audit after Jones departed, and launching an investigation

into the separation agreement. As with Sutton, these instances of agreement

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23

Howell v. Town of Ball, 827 F.3d 515, 527 (5th Cir. 2016).

24

Griggs v. Chickasaw County, 930 F.3d 696, 704 (5th Cir. 2019).

8

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with Snyder and Rose do not support the inference of racial animus

chargeable to Martinez or Gordon.

Lastly, Jones does not argue that Councilmember Daniel Thornton

bore animus. In sum, even assuming arguendo that Snyder and Rose bore

animus, Jones cannot establish animus chargeable to the board on a

headcount analysis.

2

Jones invokes a “cat’s paw” theory establish the City’s liability. The

cat’s paw doctrine, used in employment discrimination cases, holds an

employer liable “even if the ultimate decisionmaker herself holds no

discriminatory animus as long as the plaintiff can demonstrate that her

decision was influenced by another who does hold such animus.” 25

However, the doctrine does not apply in the present suit.

Outside of § 1983 suits, we have held that the cat’s paw doctrine

serves to “impute” the illicit motives of an earlier actor to the official

decisionmaker. 26 Jones similarly describes the cat’s paw as “imput[ing]

[discriminatory] attitudes.” This “imputation of motives” language appears

to reveal some potential daylight between respondeat superior and cat’s paw.

After all, as Jones argues, if cat’s paw imputes only the motives of the prior

actor to the decisionmaker, perhaps cat’s paw liability is ultimately

predicated on the decisionmaker’s final action and is not vicariously imposed

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25

Fisher v. Lufkin Indus., Inc., 847 F.3d 752, 758 (5th Cir. 2017).

26

Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir.2000) (“If the

employee can demonstrate that others had influence or leverage over the official

decisionmaker, and thus were not ordinary coworkers, it is proper to impute their

discriminatory attitudes to the formal decisionmaker.”); see also Roberson v. Alltel Info.

Servs., 373 F.3d 647, 653 (5th Cir. 2004) (arguing motives “should be imputed [] under the

cat’s paw analysis”).

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from the earlier actor’s conduct. However, a close inspection of the theory’s

headwaters reveals the cat’s paw is based in agency principles. It is thus

incompatible with Monell and unavailable to Jones in this suit.

Judge Posner has been credited for terming the cat’s paw

doctrine. 27 In Shager v. Upjohn Co., 28 an ADEA case, former employee

Shager brought an age discrimination claim against his former employer after

his supervisor, who allegedly held age-related animus, recommended

Shager’s termination to a personnel committee. 29 If the supervisor had

directly fired Shager, the employer would have been found liable under

respondeat superior. 30 The insertion of the committee presented a causation

problem because the committee fired Shager, not the supervisor with the

alleged animus. 31 But the supervisor’s influence overcame the interruption

of the committee with tort causation and agency principles:

If [the committee] acted as the conduit of [the supervisor’s]

prejudice—his cat’s-paw—the innocence of its members

would not spare the company from liability. For it would then

be a case where [the supervisor], acting within (even if at the

same time abusing) his authority as district manager to evaluate

and make recommendations concerning his subordinates, had

procured Shager’s discharge because of his age. 32

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27

Staub v. Proctor Hosp., 562 U.S. 411, 416 n.1 (2011).

28

913 F.2d 398 (7th Cir. 1990).

29

Id. at 400.

30

Id. at 405.

31

Id.

32

Id.

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If there was any ambiguity as to cat’s paw’s basis in respondeat superior,

Judge Posner plainly follows with: “[The supervisor] would have

violated the statute, and his violation would be imputed to [the employer].” 33

The action is imputed, not the motive.

The Supreme Court later blessed cat’s paw in a USERRA case, Staub

v. Proctor Hospital. 34 The Court reviewed general tort and agency principles

before asserting, “[an] employer is at fault [if] one of its agents committed an

action based on discriminatory animus that was intended to cause, and did in

fact cause, an adverse employment decision.” 35 Again, Staub does not base

cat’s paw on imputing the motive of the earlier actor. 36 Rather, liability

attaches to the employer “under traditional agency principles.” 37 Shager and

Staub agree: The cat’s paw preserves the casual link between an earlier

agent’s discriminatory action and a neutral decisionmaker’s adverse action;

then, agency principles attribute the earlier agent’s action to the employer.

In a pre-Staub unpublished case, we clearly spelled out the mechanics

of cat’s paw in a case against an individual, not an employer:

In the employment context, the actions of ordinary, non-

supervisory employees are not typically a basis for a claim. An

_____________________

33

Id.

34

562 U.S. 411 (2011).

35

Id. at 421 (emphasis added).

36

Id. at 418 (“The Restatement of Agency suggests that the malicious mental state

of one agent cannot generally be combined with the harmful action of another agent to hold

the principal liable for a tort that requires both.”).

37

Id. at 422 n.4 (“Needless to say, the employer would be liable only when the

supervisor acts within the scope of his employment, or when the supervisor acts outside

the scope of his employment and liability would be imputed to the employer under

traditional agency principles.”).

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exception is where the decision-maker functions as the

ordinary employee’s “cat’s paw” such that the adverse

employment decision could fairly be attributed to the employee. 38

Thus, despite our several cases describing “imputed motives,” we have

acknowledged that cat’s paw is a “theory of causation” 39 that connects a bad

actor to an adverse action when the decisionmaker is an intermediary, then,

if applicable, agency law attributes the action of the bad actor to an employer.

Our confusing language of “imputing motives” seems to pre-date

Staub and continue after it. 40 This phrase may have originated from Long v.

Eastfield College, 41 a Title VII case, which stated that in some cases “the

wrongful intent on the part of the supervisory employee is properly imputable

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38

Land v. Dietz, 276 F. App’x 384, 387-88 (5th Cir. 2008) (unpublished) (emphasis

added) (internal citation omitted).

39

Harville v. City of Houston, 945 F.3d 870, 878 n.30 (5th Cir. 2019); see also Zamora

v. City of Houston, 798 F.3d 326, 332 (5th Cir. 2015) (noting the “cat’s paw theory of

causation”); Gee v. Principi, 289 F.3d 342, 346 (5th Cir. 2002) (“[W]hen the person

conducting the final review serves as the ‘cat’s paw’ of those who were acting from

retaliatory motives, the causal link between the protected activity and adverse employment

action remains intact.”).

40

See, e.g., Sims v. City of Madisonville, 894 F.3d 632, 640 (5th Cir. 2018) (noting

cat’s paw is about “imputing . . . the unlawful motives of employees who are not final

decisionmakers”); Okon v. Harris Cnty. Hosp. Dist., 426 F. App’x 312, 318 (5th Cir. 2011)

(unpublished) (“Prior to Staub, our court had recognized this . . . ‘cat’s paw’ exception,

which allows for imputation of the tainted motives of a subordinate to the

policymaker . . . .”); Gollas v. Univ. of Tex. Health Sci. Ctr., 425 F. App’x 318, 325 (5th Cir.

2011) (unpublished) (noting a “retaliatory motive may be imputed to the ultimate

decisionmakers, thereby establishing a causal link”); Roberson v. Alltel Info. Servs., 373 F.3d

647, 653 (5th Cir. 2004) (noting cat’s paw functions to “impute illicit motives”); Russell v.

McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir. 2000) (noting cat’s paw “impute[s] []

discriminatory attitudes to the formal decisionmaker”).

41

88 F.3d 300 (5th Cir. 1996).

12

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to the employer.” 42 As this statement came directly after citing Shager’s

explication of the respondeat superior principles underlying the theory, Long’s

“imputation of intent” language is best understood as imprecision. 43

Given the tension between cat’s paw and Monell’s bar on vicarious

liability, we have been extremely wary of applying the theory to Monell claims.

Jones does not cite any case in which the Fifth Circuit applied cat’s paw to a

Monell claim and we are similarly unaware of any such authority. 44 In fact,

our cases impliedly reject the theory in Monell contexts. In Howell, 45 we

acknowledged that “the ‘cat’s paw’ theory of liability allows a final

decisionmaker to be held liable if his or her decision is influenced by a

subordinate’s retaliatory animus,” but noted the plaintiff’s two routes in

establishing liability against the municipality were proving “that the Board

itself harbored retaliatory animus, or that it ratified both [the supervisor’s]

recommendation for discharge and the retaliatory animus backing it.” 46 This

amounts to a headcount route and a ratification route (following Beattie, 47 a

case the City addresses, but Jones does not), not cat’s paw. In an unpublished

decision, we again implicitly rejected cat’s paw in Monell claims: “It is the

formal allocation of power—not the way power is exercised ‘in practice’—

that matters for municipal liability under Section 1983” because otherwise

“municipalities [could] be held liable under Section 1983 on what would

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42

Id. at 307.

43

See id.

44

Edelstein v. City of Brownsville, No. 20-40211, 2021 WL 4096581, at *2 (5th Cir.

Sept. 8, 2021) (unpublished) (acknowledging the district court “noted that [the Fifth

Circuit] had not previously applied [the cat’s paw] theory in the context of Section 1983”).

45

Howell v. Town of Ball, 827 F.3d 515 (5th Cir. 2016).

46

Id. at 526, 528.

47

Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595 (5th Cir. 2001).

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operate in practice as a respondeat superior theory—something the Supreme

Court has repeatedly forbidden.” 48 A district court in our circuit more

explicitly denounced cat’s paw’s application to Monell claims. 49

Other circuits are similarly wary of extending cat’s paw to Monell. In

an extended discussion in a footnote, the Seventh Circuit stated:

[The plaintiff] makes a passing reference to the “cat’s paw”

theory, but we question whether such a theory is applicable for

purposes of establishing § 1983 municipal liability. . . . The

theory is steeped in agency principles which are applied in the

Title VII context, but don’t apply to § 1983 municipal liability.

We were unable to find any other case applying the cat’s paw

theory to hold a municipality liable under § 1983. . . . Imputing

a nondecisionmaker’s motive to a municipal employer sounds

a lot like respondeat superior liability. Given that well

developed § 1983 municipal liability law recognizes delegation

and ratification, there seems to be little point in trying to

awkwardly fit the cat’s paw concept in this area of civil rights

law. 50

_____________________

48

Edelstein, 2021 WL 4096581, at *4 (emphasis omitted).

49

Perez v. City of Austin, No. A-07-CA-044, 2008 WL 11334097, at *5 (W.D. Tex.

Sep. 2, 2008) (order granting in part and denying in part defendant’s motion for summary

judgment) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 128-30 (1988) (plurality

opinion)) (“Allowing a Plaintiff to bring suit under § 1983 for employment discrimination,

and then permitting him to avoid the Monell doctrine by use of [the cat’s paw] doctrine

would plainly be permitting circumvention of established principles. Thus, the ‘cat’s paw’

theory cannot solve the Plaintiff’s problem with being unable to demonstrate the existence

of a policy or practice which caused Plaintiff’s termination.”).

50

Waters v. City of Chi., 580 F.3d 575, 586 n.2 (7th Cir. 2009) (internal citations

omitted).

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The Seventh Circuit re-urged its concern in a later case. 51 Similarly, on the

Tenth Circuit, then-Judge Gorsuch cast doubt as to whether cat’s paw

squares with Monell in an unpublished opinion. 52 District courts across the

circuits more clearly deny cat’s paw in Monell claims. 53

_____________________

51

Simstad v. Scheub, 816 F.3d 893, 902 (7th Cir. 2016) (“It is not clear how, or

whether, [cat’s paw] applies in the municipal liability context.”).

52

Lawrence v. Sch. Dist. No. 1, 560 F. App’x 791, 795 (10th Cir. 2014) (Gorsuch,

J.) (unpublished) (holding that the plaintiff failed to “show that holding the school district

and board liable under this cat’s paw theory doesn’t run afoul of Monell’s teaching on

municipal liability”).

53

Talanca v. Borough of Ashley, No. 3:18-CV-2184, 2021 WL 10382134, at *3 (M.D.

Pa. Nov. 22, 2021) (quoting Migliore v. Feria, No. CV 11-4018, 2015 WL 7273383, at *9

(E.D. Pa. Nov. 17, 2015)) (“[C]at’s paw liability is not available in a § 1983 action against a

municipality.”); Gray v. Zaruba, No. 16 C 4850, 2019 WL 5536839, at *11 (N.D. Ill. Oct.

25, 2019) (noting “[i]t is highly questionable whether a party may even rely on a cat’s paw

theory to establish the liability of a municipality . . . for such a claim” before deciding not

to reach the issue); Harper v. Hous. Cnty. Bd. of Educ., No. 1:17-CV-721, 2019 WL 3072631,

at *7 (M.D. Ala. July 12, 2019) (“Rejecting the cat’s paw theory for Section 1983 litigation

supports the Supreme Court’s holding in Monell.”); Nicosia v. Town of Hempstead, No.

16CV1176, 2017 WL 3769246, at *4 (E.D.N.Y. Aug. 28, 2017) (declining to extend cat’s

paw to § 1983 in light of plaintiff’s lack of support); Sroga v. Preckwinkle, No. 14 C 06594,

2017 WL 345549, at *6 (N.D. Ill. Jan. 24, 2017) (quoting Praprotnik, 485 U.S. at 131)

(“Allowing an expansion of Monell via the cat’s paw theory would be ‘a step towards

overruling Monell and adopting the doctrine of respondeat superior.’”); Chew v. City &

County of San Francisco, No. 13-CV-05286, 2016 WL 631924, at *15 (N.D. Cal. Feb. 17,

2016), aff’d, 714 F. App’x 687 (9th Cir. 2017) (“[Plaintiff] cannot rely on the Cat’s Paw

theory as elucidated in Staub to impute liability to the City and circumvent the

requirements of Monell.”); Schmidt v. Vill. of Glenwood, No. 14 C 9112, 2015 WL 3918952,

at *6 (N.D. Ill. June 24, 2015) (“[The] ‘cat’s paw’ theory of liability is not a good fit under

Monell.”); Polion v. City of Greensboro, 26 F. Supp. 3d 1197, 1218 (S.D. Ala. 2014), aff’d, 614

F. App’x 396 (11th Cir. 2015) (declining to apply cat’s paw to municipal liability); Kregler

v. City of New York, 987 F. Supp. 2d 357, 369 (S.D.N.Y. 2013), aff’d, 604 F. App’x 44 (2d

Cir. 2015) (declining to extend cat’s paw to § 1983 municipal liability); Jackson v. City of

Centreville, 899 F. Supp. 2d 1209, 1222 (N.D. Ala. 2012) (quoting Files v. DeKalb Cnty. Sch.

Dist., No. 1:11-CV-1798, 2012 WL 716055, at *4 (N.D. Ga. Mar. 5, 2012)) (“[T]he cat’s

paw theory does not apply in the § 1983 context.”); Manuele v. City of Jennings, No.

4:10CV1655, 2012 WL 113538, at *10 (E.D. Mo. Jan. 13, 2012) ([C]at’s paw liability does

not apply to municipalities, which cannot be held liable on agency principles.”). But see

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* * * * *

In sum, Jones advances a headcount theory and a cat’s paw theory.

Even assuming arguendo that Snyder and Rose bore animus, Jones has not

established the discriminatory intent of any of the remaining four

councilmembers, so the headcount fails. Second, the cat’s paw claim is based

in agency principles, so it is incompatible with Monell’s bar on respondeat

superior and unavailable to Jones. Jones did not establish this element of his

civil rights claim and the district court’s judgment must be reversed as to this

claim.

III

The City also argues that the district court erred in concluding that

the agreement with Jones was valid. The City also contends that the jury’s

finding of breach of contract liability should be reversed.

A

We first consider whether certain issues are preserved for review.

The parties submitted competing motions for summary judgment as to

contract validity, and the district court granted Jones’s motion, upholding

the validity of the separation agreement. Jones argues that the City must have

re-urged its argument on this point to preserve it for appeal, but that is

inaccurate. The Supreme Court held in Dupree v. Younger, 54 that “a post-

trial motion under Rule 50 is not required to preserve for appellate review a

purely legal issue resolved at summary judgment.” 55 To the extent the City’s

_____________________

Bonner v. Vill. of Burnham, No. 14 C 1881, 2014 WL 3882501, at *4 (N.D. Ill. Aug. 7, 2014)

(allowing Monell claim to proceed via cat’s paw despite recognizing the Seventh Circuit’s

caution against it).

54

598 U.S. 729 (2023).

55

Id. at 736.

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arguments present questions of law, we can consider them. On appeal, the

City brings three arguments on contract validity: (1) a Texas Open Meetings

Act (TOMA) violation, (2) a City Charter violation, and (3) immunity.

B

The City argues that the separation agreement is voidable under

TOMA. The City directly made this argument, a question of law, in its

motion for summary judgment. 56 We can now review it.

TOMA, aimed at “enabl[ing] public access to and [] increas[ing]

public knowledge of government decisionmaking,” 57 requires a

“governmental body [to] give written notice of the date, hour, place, and

subject of each meeting held by the governmental body.” 58 The City argues

that the meeting that concerned the separation agreement failed this

requirement by insufficiently disclosing the subject matter of the action that

was to be considered regarding Jones.

The parties agree that the public notice on the action item was:

“Consideration and possible action(s) on personnel matters regarding city

manager.” If a generalized “‘reader’ is given notice, the requirement of

[TOMA] is satisfied and its purpose served.” 59 While notice may not be “as

_____________________

56

Weatherford v. City of San Marcos, 157 S.W.3d 473, 486 (Tex. App.—Austin

2004, pet. denied) (“[A]dequacy [of notice under TOMA] is a question of law.”).

57

City of San Antonio v. Fourth Ct. of Appeals, 820 S.W.2d 762, 765 (Tex. 1991).

58

Tex. Gov’t Code § 551.041.

59

City of San Antonio, 820 S.W.2d at 765.

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clear as it might be,” 60 it is sufficient when “it alerts a reader that some action

will be taken relative to a topic.” 61

The City correctly notes that “as public interest in a matter increases,

the Act requires correspondingly more detailed descriptions of the subject to

be discussed.” 62 It argues that because the separation agreement involved

“secret payment of an unbudgeted $412,000 . . . , a release by the City of all

claims the City might have against Jones . . . ; a post-employment

confidentiality provision . . . ; [and] a non-disparagement provision

purporting to waive the City’s governmental immunity,” it required more

specific notice to comply with TOMA. In Cox Enterprises, 63 cited by the City,

a school board was considering filling the position of superintendent but only

described the action in the agenda as relating to “personnel.” 64 Because the

issue was of special interest to the public, the court held that notice was

insufficient under TOMA. 65 The court noted that the notice “should

specifically disclose the subjects to be considered at the upcoming

meeting.” 66

_____________________

60

Id.

61

Rettberg v. Tex. Dep’t of Health, 873 S.W.2d 408, 411 (Tex. App.—Austin 1994,

no writ) (citing Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641, 646 (Tex.

1975)).

62

Stockdale v. Meno, 867 S.W.2d 123, 125 (Tex. App.—Austin 1993, writ denied)

(citing Cox Enters., Inc. v. Bd. of Trs. of Austin Indep. Sch. Dist., 706 S.W.2d 956, 959 (Tex.

1986)).

63

Cox Enters., Inc., 706 S.W.2d at 956.

64

Id. at 957.

65

Id. at 959.

66

Id.

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Here, notice went beyond the general “personnel” descriptor in Cox

Enterprises. The notice specifically indicated that action was contemplated

“on personnel matters regarding city manager.” The specification of the

subject of the personnel matters differentiates this case from Cox Enterprises.

The City cites no case that demonstrates that the added specificity,

“regarding city manager,” is insufficient under the notice requirement.

Furthermore, “[f]ar from serving the purposes of the Act, [too high of a]

degree of specificity would so overwhelm readers” and prove less

informative than a leaner notice. 67 We are persuaded that the notice in this

case satisfied TOMA. Notably, neither party cited a case where a

municipality challenged its own TOMA violation. Because the City’s notice

was sufficient, we do not consider whether and under what circumstances a

city could void its own action under TOMA.

C

The City asserts that the severance agreement is void under § 8.10 of

the City Charter, an overspending provision. That provision requires that

“[n]o payment shall be made . . . except in accordance with authorized

appropriations and unless the City Manager or his designee first certifies that

there is a sufficient unencumbered balance . . . and that sufficient funds are or will

be available” to cover the claim when it becomes due. Hutto argues that there

was no certification for the funds to be expended under the separation

agreement, voiding the agreement.

While § 8.10 appears throughout the record as it was one of the bases

for the resolution in the City Attorney’s demand letter, this argument was

not made in either the City’s Motion for Summary Judgment or its Renewed

_____________________

67

City of San Antonio v. Fourth Ct. of Appeals, 820 S.W.2d 762, 766 (Tex. 1991).

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Motion for Judgment as a Matter of Law. Consequently, this argument is

forfeited. 68

The City argues that the non-disparagement provision is invalid

because of immunity, even if the rest of the contract is enforceable. Because

the validity of the non-disparagement provision has no bearing on the issues

on appeal, we need not consider it.

D

Jones argues the City breached the separation agreement by

(1) adopting the resolution rescinding the separation agreement and sending

the associated demand letter and (2) disparaging Jones in violation of the

non-disparagement provision.

Hutto argues that its attempted recission of the separation agreement

did not impair Jones’s contract rights because Jones received and retains the

$412,000 promised under the contract and, while Hutto demanded return of

the payment and threatened suit, it made no counterclaim for the return of

the money. This rings hollow.

The City continues to argue before this court that the separation

agreement was invalid and was properly rescinded. The district court ruled

against the City on the issues of contract validity and breach at the summary

judgment stage. Jones prevailed on the breach of contract issue in the district

court. We agree with the district court that, as a matter of law, the separation

agreement was valid regarding the separation payment, and the City

breached the agreement when it attempted to rescind.

The jury found the City liable for breach of contract and awarded

Jones $4.5 million after the district court instructed it to consider (1) the

_____________________

68

Grogan v. Kumar, 873 F.3d 273, 277 (5th Cir. 2017).

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difference in the value contracted for and received, (2) Jones’s reasonable

and necessary expenses in pursuing the claim, and (3) consequential damages

stemming from lost profits or damage to reputation. The Texas Local

Government Code provided the waiver of governmental immunity for

Jones’s breach of contract claim, 69 but the district court, in a post-trial order,

correctly noted this statute also limits Jones’s recovery. Notably,

§ 271.153(b) specifically bars recovery of consequential damages. 70 Because

of this bar, the trial court correctly noted Jones cannot recover consequential

damages.

Though Jones retained the $412,000 payment throughout the

proceedings, the City disputed his right to retain that payment. Jones

prevailed, and as a consequence, was not required to repay the $412,000. His

claim for attorney fees remains.

The City maintains that Jones is not entitled to recover attorney fees

because he is not entitled to any damages in light of the fact he never repaid

the $412,000. The Supreme Court of Texas has directed that “suits cannot

be maintained solely for the attorney’s fees; a client must gain something

before attorney’s fees can be awarded.” 71 But Jones did “gain something.”

He pursued and prevailed on his right to retain the separation payment made

under the contract.

As to the breach of contract claim for disparagement, even if we were

to conclude that such a claim is not barred by Tex. Loc. Gov’t Code

§ 271.153(b), an issue we do not decide, there is no evidence that the City

_____________________

69

Tex. Loc. Gov’t Code § 271.152.

70

Id. § 271.153(b).

71

MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 663 (Tex. 2009)

(referencing Jarndyce v. Jarndyce of Dickensian fame).

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disparaged Jones. Evidence of disparagement by two members of the City

Council is not evidence of disparagement by the City or the council as a body.

The evidence reflected that disparaging statements by the two council

members were made individually, in contexts that could not have been

construed as reflecting actions of the City or the City Council.

Accordingly, we remand this case to the district court to consider only

the attorney’s fee issue.

* * *

For the foregoing reasons, the judgment of the district court is

AFFIRMED in part, REVERSED in part, and the case is REMANDED

for proceedings consistent with this opinion.

22