# Jones v. City of Hutto

> Court of Appeals for the Fifth Circuit · October 7, 2025

URL: https://www.frixlaw.com/law-library/cases/11158679

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** October 7, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Civil Rights
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11158679

## How later opinions describe it (automated extraction)

- noting cat’s paw “impute[s] [] discriminatory attitudes to the formal decisionmaker”
- declining to apply cat’s paw to municipal liability
- noting cat’s paw is about “imputing . . . the unlawful motives of employees who are not final decisionmakers”
- noting the “cat’s paw theory of causation”

## Opinion text

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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

_____________________
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).

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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
_____________________
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).

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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

_____________________
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

_____________________
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).

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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

_____________________
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

_____________________
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).

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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

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11158679. Public record. Not legal advice.