DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CITY OF HALLANDALE BEACH, FLORIDA,

Appellant,

v.

DANIEL ROSEMOND,

Appellee.

No. 4D2022-2642

[June 5, 2024]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Michael A. Robinson, Judge; L.T. Case No. 17-1355 

CACE.

Christopher J. Stearns and Jonathan H. Railey of Johnson, Anselmo, 

Murdoch, Burke, Piper & Hochman, P.A., Fort Lauderdale, for appellant.

Rebecca A. O’Hara and Kraig A. Conn of Florida League of Cities, Inc., 

Tallahassee, amicus curiae in support of appellant.

Brian L. Lerner, Robert C.L. Vaughan, and Anisha C. Atchanah of Kim 

Vaughan Lerner LLP, Fort Lauderdale, for appellee.

GERBER, J.

The city appeals from the circuit court’s final judgment in favor of a

former employee who prevailed on his claims against the city for 

whistleblower retaliation and breach of contract. The city argues the 

circuit court erred in two primary respects: (1) denying the city’s directed 

verdict motions on both claims; and (2) providing incorrect jury 

instructions on the whistleblower retaliation claim.

On the city’s first argument, we conclude the circuit court erred in 

denying the city’s directed verdict motion as to the former employee’s 

whistleblower retaliation claim. Our conclusion on the city’s first

argument moots the city’s second argument. Thus, we reverse the final 

judgment on the whistleblower retaliation claim, and remand for entry of 

final judgment in the city’s favor on that claim. We affirm the final 

judgment in the former employee’s favor on his breach of contract claim.
2 

Our opinion will focus primarily on the whistleblower retaliation claim. 

We will present this opinion in five sections: 

1. The former employee’s trial evidence; 

2. The city’s directed verdict motion; 

3. The jury’s verdict, the city’s post-verdict motions, and the circuit 

court’s final judgment; 

4. The parties’ arguments on appeal; and 

5. Our review. 

1. The Former Employee’s Trial Evidence 

We present the former employee’s trial evidence in the light most 

favorable to him as the non-moving party on the city’s directed verdict 

motions. See Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So. 3d 

247, 250 (Fla. 4th DCA 2009) (“When an appellate court reviews the grant 

of a directed verdict, it must view the evidence and all inferences of fact in 

a light most favorable to the nonmoving party.”) (citation omitted). As the 

former employee was employed by the city at all times material to this 

appeal, we shall refer to him from this point forward as “the employee.” 

In February 2015, when the employee was serving as deputy city 

manager, the city attorney filed an internal racial discrimination complaint 

on her own behalf against then-City Commissioner Keith London. The city 

retained an outside law firm to investigate the city attorney’s complaint. 

When the investigators interviewed the employee in April 2015, he 

stated that Commissioner London, in a separate situation, allegedly had 

committed a Sunshine Law violation and had violated a city rule 

prohibiting commissioners from directing employees’ actions, rather than 

through the city manager. When the investigators interviewed 

Commissioner London, they made him aware of the employee’s statements 

regarding the alleged violations. 

Over the next several months, Commissioner London did not show any 

animosity toward the employee. However, in October 2015, when the city 

manager resigned, and the five-member city commission voted 3-2 to 

appoint the employee to serve as city manager effective January 1, 2016, 

Commissioner London was one of the two votes against the employee’s 

promotion. The other commissioner voting against the employee’s 

promotion was Commissioner Michele Lazarow. 
3

In February 2016, that is, one month into the employee’s service as city 

manager, the investigators provided the employee with their report

regarding the city attorney’s internal racial discrimination complaint 

against Commissioner London. The report stated the investigators had 

been unable to conclude Commissioner London had discriminated against 

the city attorney. The investigators’ report also mentioned the employee’s 

statements regarding Commissioner London’s other alleged violations. 

The employee forwarded the investigators’ report to the city commission. 

Months later, in November 2016, city voters elected a new City 

Commissioner, Annabelle Lima-Taub, for whom Commissioner London 

had served as campaign manager. The day after Commissioner Lima-Taub 

had been sworn in and the city commission had selected Commissioner 

London to serve as vice mayor, now-Vice Mayor London requested a special

city commission meeting be held to discuss the employee’s contract.

At that special meeting, which occurred later in November 2016, Vice 

Mayor London discussed three incidents which he said required

terminating the employee for cause. Vice Mayor London’s description of 

those incidents were incomplete in some respects and false in others.

After Vice Mayor London’s presentation, he moved to suspend the 

employee as city manager, appoint the deputy city manager as interim city 

manager, and commence the procedure for terminating the employee’s 

contract. The motion passed 3-2, with Vice Mayor London and 

Commissioners Lazarow and Lima-Taub in the majority.

The city charter required a “special hearing to allow the manager to 

defend whatever reasons for the termination being put forth.” That special 

hearing occurred in late December 2016. Vice Mayor London requested a 

motion to terminate the employee, and stated the termination and its 

reasons should be made a “permanent record” so prospective employers 

could see such record. Commissioner Lazarow moved to adopt such a 

resolution, and added the resolution should reflect the employee was 

terminated “with cause.” The motion passed 3-2, with Vice Mayor London 

and Commissioners Lazarow and Lima-Taub in the majority.

The employee then sued the city on two claims: (1) whistleblower 

retaliation; and (2) breach of contract.

The employee’s whistleblower retaliation claim alleged the city 

commission’s termination of his employment violated Florida’s Whistleblower’s Act, section 112.3187(4)(a)-(b), Florida Statutes (2016) (a 

government entity “shall not dismiss, discipline, or take any other adverse 
4

personnel action against an employee for disclosing information pursuant 

to the provisions of this section” and “shall not take any adverse action 

that affects the rights or interests of a person in retaliation for the person’s 

disclosure of information under this section”). According to the employee, 

his 2015 allegations about then-Commissioner London had caused nowVice Mayor London in November 2016 to create the three pretextual 

reasons for the employee’s termination. The employee summarized his 

allegations as follows:

It was Vice Mayor London who initiated and coordinated the 

efforts to suspend and then terminate ... [the employee]. This 

included, among other things, alleging the three stated bases 

for removal, putting together and choosing to omit documents 

pertaining to the removal, presenting the case for the removal, 

spearheading the process that would be used to conduct the 

public hearing, ... and being the person to make the point of 

how important it was to make the termination part of the 

permanent record.

The employee’s breach of contract claim alleged the city commission’s 

termination of his employment breached his employment agreement. 

Pertinent to this appeal, the employee specifically alleged his employment 

agreement provided that being terminated “with cause” required him to 

have committed “misconduct” as defined by section 443.036(29), Florida 

Statutes (2016), and he had not committed any “misconduct.”

During the employee’s trial testimony, he provided additional facts to 

clarify or refute the three reasons upon which Vice Mayor London had 

relied to support the employee’s suspension and termination. The 

employee testified Vice Mayor London had not fully stated some facts, and 

had misrepresented other facts, during the city commission’s November

and December 2016 special meetings which had led to the employee’s 

suspension and termination.

Vice Mayor London testified that the employee’s 2015 statements to the 

investigators had not motivated either his October 2015 vote against 

promoting the employee to become city manager or his November and 

December 2016 votes to suspend and terminate the employee.

Commissioner Lazarow testified the employee’s 2015 statements to the 

investigators had not motivated either her October 2015 vote against 

promoting the employee to become city manager or her November and 

December 2016 votes to suspend and terminate the employee. 

Commissioner Lazarow further testified the November 2016 special
5 

meeting was the first time she had become aware that Vice Mayor London 

wanted to suspend and terminate the employee. She testified she had not 

“blindly followed” Vice Mayor London’s recommendation to suspend and 

terminate the employee. Rather, during the November and December 

2016 special meetings, she had considered Vice Mayor London’s reasons, 

reviewed the documents which he had presented, and asked questions. 

Commissioner Lima-Taub testified that because she had not been a city 

commissioner before the November 2016 election, she was unaware of the 

employee’s 2015 statements to the investigators when she voted to 

suspend and terminate the employee in November and December 2016. 

Commissioner Lima-Taub also testified she had voted to suspend and 

terminate the employee based on Vice Mayor London’s presentation. 

2. The City’s Directed Verdict Motion as to 

The Employee’s Whistleblower Retaliation Claim 

After the employee rested, the city’s trial counsel moved for a directed 

verdict as to both the employee’s whistleblower retaliation claim and his 

breach of contract claim. 

Pertinent to the whistleblower retaliation claim, the city’s trial counsel 

argued: “A plaintiff cannot prove an improper animus for whistle blowing 

when it relates to a City Commission unless [the plaintiff] can prove an 

intent to retaliate by the majority. ... [Here, that means] all three of the 

people who voted [to terminate the employee] must share the motive to 

terminate.” However, according to the city’s counsel: “[The plaintiff has] 

contended that one member of this five[-person] committee had an 

improper motive, only [Vice Mayor] London. Under the law, that’s not 

sufficient to let [the plaintiff’s whistleblower retaliation claim] go to a jury. 

[The plaintiff has] introduced no evidence [of retaliatory motive] at all 

related to [Commissioners Lazarow and Lima-Taub].” 

In response to the city’s argument as to why the city could not be found 

liable for whistleblower retaliation, the plaintiff’s counsel relied upon a 

“cat’s paw” theory. The plaintiff’s counsel described the “cat’s paw” theory 

as “simply mean[ing] if one [commissioner] is ... [making] the charge, 

making the recommendations, suggesting what to do, and you don’t have 

evidence of [other commissioners’] independent investigation or doing 

something on [their] own, that can be a form of retaliation.” 

The circuit court summarily denied the city’s directed verdict motion as 

to both the whistleblower retaliation claim and the breach of contract 

claim. After the city presented its evidence and rested, the city renewed 
6 

its directed verdict motion. The circuit court again summarily denied the 

city’s motion. 

3. The Jury’s Verdict, the City’s Post-Verdict Motions, 

and the Circuit Court’s Final Judgment 

On the employee’s whistleblower retaliation claim, the jury found in the 

employee’s favor by finding, in response to specific interrogatories: the 

employee had engaged in protected activity; the employee had suffered an 

adverse employment action; the city had taken an adverse employment 

action against the employee because of his protected activity; the city’s 

adverse employment action had not been predicated upon grounds other 

than, and would not have been taken absent, the employee’s exercise of 

protected activity; and the employee was entitled to recover his damages. 

The jury also determined the employee’s damages amount on that claim. 

On the employee’s breach of contract claim, the jury found in the 

employee’s favor by finding, in response to specific interrogatories: the city 

had breached its contract with the employee by terminating the employee 

for reasons other than “misconduct”; and the plaintiff was entitled to 

recover his damages. The jury also determined the employee’s damages 

amount on that claim. 

Following the jury’s verdict, the city filed a renewed motion for directed 

verdict and motion for judgment notwithstanding the verdict. Pertinent to 

the whistleblower retaliation claim, the city again argued the employee, as 

a matter of law, had to show Vice Mayor London and Commissioners 

Lazarow and Lima-Taub all had harbored an illegal intent to retaliate 

against the employee because of his statements to the investigators in 

2015 when they voted to suspend and terminate the employee in November 

and December 2016. However, the city argued, the employee testified the 

only person whom he believed had possessed any retaliatory animus 

against him was Vice Mayor London. The employee could not identify any 

evidence indicating Commissioner Lazarow or Commissioner Lima-Taub 

had been motivated by an intent to retaliate against him. Further, the city 

argued, Commissioner Lima-Taub could not have intended to retaliate 

against the employee because she had not known the employee had given 

statements to the investigators in 2015 at the time she had voted to 

suspend and terminate the employee in November and December 2016. 

The circuit court entered separate written orders summarily denying 

the city’s motions. The circuit court also entered a final judgment in the 

employee’s favor for the combined damages amounts on his whistleblower 

retaliation claim and his breach of contract claim. 
7 

4. The Parties’ Arguments on Appeal 

The city then timely filed this appeal. Pertinent to the whistleblower 

retaliation claim, the city has repeated its directed verdict motions’ 

argument that the employee, as a matter of law, had to show Vice Mayor 

London and Commissioners Lazarow and Lima-Taub all harbored an 

illegal intent to retaliate against the employee due to his statements to the 

investigators in 2015 when they had voted to suspend and terminate the 

employee in November and December 2016. The city argues while the 

employee believed Vice Mayor London harbored a retaliatory animus 

leading to London’s vote to suspend and terminate the employee, the 

employee presented no evidence that Commissioners Lazarow and LimaTaub harbored a retaliatory animus leading to their votes to suspend and 

terminate the employee. 

The employee pertinently responds he did not have to show each of the 

three city commissioners who had voted to suspend and terminate him 

harbored a retaliatory animus against him. Rather, the employee 

responds, he was permitted to prove the city’s liability for whistleblower 

retaliation under a “cat’s paw” theory which, according to the employee,

“simply requires that the supervisor’s influence with the decisionmaker be 

strong enough to actually cause the adverse employment action.” Here, 

the employee argues, “[Vice Mayor] London’s almost absolute control and 

choreography of the City’s retaliatory campaign against [the employee] was 

demonstrated beyond refute and without serious contradiction.” 

5. Our Review 

Our review is de novo. See Meruelo, 12 So. 3d at 250 (“The standard 

for reviewing a trial court’s ruling on a motion for directed verdict is de 

novo.”). “A trial court should grant a motion for directed verdict when the 

evidence, viewed in the light most favorable to the non-moving party, 

shows that a jury could not reasonably differ about the existence of a 

material fact and the movant is entitled to judgment as a matter of law.” 

Id.

We conclude the “cat’s paw” liability theory upon which the employee 

had relied was not available as a means to establish a whistleblower 

retaliation claim in this case. In State v. Bracewell, 220 So. 3d 1228 (Fla. 

1st DCA 2017), our sister court explained how the “cat’s paw” liability 

theory operates in the employment law context: 

The “cat’s paw” metaphor derives from a seventeenthcentury French fable involving a conniving monkey who 
8 

convinces a cat to reach into a fire to retrieve roasting 

chestnuts. The cat burns its paws in the process and the 

monkey escapes unscathed with the chestnuts. In the 

employment law context, cat’s paw liability refers to a 

situation in which a biased subordinate, who lacks 

decisionmaking power, clearly causes the tangible 

employment action, regardless of which individual actually 

signs the employee’s walking papers. In other words, by 

merely effectuating or rubber-stamping a discriminatory 

employee’s unlawful design, the employer plays the credulous 

cat to the malevolent monkey and, in so doing, allows itself to 

get burned—i.e., successfully sued. 

Id. at 1231 (internal citations, quotation marks, and brackets omitted). 

Applying our sister court’s explanation, the city commission’s structure 

here does not permit the “cat’s paw” liability theory’s application. Vice 

Mayor London was not a “subordinate, who lacks decisionmaking power.” 

Rather, Vice Mayor London was a “decisionmaker,” along with

Commissioners Lazarow and Lima-Taub and the remaining two city 

commissioners. The employee’s “cat’s paw” liability theory does not apply. 

Because a “cat’s paw” liability theory does not apply here, we have 

considered whether a whistleblower retaliation claim can still be shown

where the personnel decision was made by equal decisionmakers, only one 

of whom was alleged to have harbored an animus towards the plaintiff. 

Two federal Eleventh Circuit cases suggest no such liability can be shown. 

In Mason v. Village of El Portal, 240 F.3d 1337 (11th Cir. 2001), the 

Eleventh Circuit reviewed a case in which a police chief had filed a racial 

discrimination complaint under 42 U.S.C. § 1983 against the municipality 

whose village council had voted 3–2 not to reappoint him. Id. at 1338-39. 

The municipality filed a summary judgment motion, which the trial court 

granted. Id. at 1339. The trial court found although a triable issue of fact 

remained as to whether one majority member’s nondiscriminatory reasons 

were pretextual, the police chief had presented no credible evidence to 

show the other two majority members’ nondiscriminatory reasons were 

unworthy of belief. Id.

On the police chief’s appeal, the Eleventh Circuit affirmed. Id. at 1341. 

The Eleventh Circuit stated, “the critical issue on appeal is whether the 

alleged racially discriminatory motive of only one member of a threemember majority of a five-member council can give rise to municipal 

liability.” Id. at 1339. The Eleventh Circuit “agree[d] with the trial court 
9 

that it does not.” Id. The Eleventh Circuit reasoned that without evidence 

of the other two council members’ nondiscriminatory reasons being 

unworthy of belief, “we will not presume [the other two council members] 

shared [the racially discriminating council member’s] motives.” Id.

The following year, the Eleventh Circuit reviewed a similar case—

Matthews v. Columbia County, 294 F.3d 1294 (11th Cir. 2002). In 

Matthews, three members of a five-member county commission voted to 

eliminate several county positions, including the plaintiff’s position. Id. at 

1295. The plaintiff filed a complaint against the county under 42 U.S.C. 

§ 1983, alleging she was being retaliated against for her prior protected 

speech on a county business matter. Id. A jury returned a verdict in the 

plaintiff’s favor. Id. at 1296. The jury specifically found the plaintiff’s 

protected speech had motivated only one majority commissioner to vote to 

eliminate the plaintiff’s position. Id. The jury also specifically found the 

other two majority commissioners had been “influenced in [their] vote[s] 

by [the one majority commissioner] who was motivated to eliminate 

Plaintiff’s employment because of the Plaintiff’s protected speech 

activity[.]” Id. The county moved for judgment as a matter of law under 

the federal civil procedure rule comparable to Florida’s civil procedure rule 

for judgment notwithstanding the verdict. Id. The county argued it could 

not be held liable based on the improper motives of only one commissioner. 

Id. The trial court denied the county’s motion. Id.

On the county’s appeal, the Eleventh Circuit reversed the trial court’s 

denial of the county’s motion for judgment as a matter of law. Id. 

According to the Eleventh Circuit, the jury’s finding that only one 

commissioner had acted with an unconstitutional motive did not settle the 

question of the county’s liability. Id. Rather, the Eleventh Circuit 

concluded: 

Because policymaking authority rests with the 

Commission as an entity, the County can be subject to liability 

only if the Commission itself acted with an unconstitutional 

motive. An unconstitutional motive on the part of one member 

of a three-member majority is insufficient to impute an 

unconstitutional motive to the Commission as a whole.

.... 

[T]hat [one commissioner] ... may have affected [the other 

two commissioners’] votes by his influence is not enough to 

show that they ratified the unlawful basis by also voting for 

the [reduction of county positions]. In reaching this 
10

conclusion, we draw not only upon our precedent, but also 

upon our belief that a contrary rule would put lawmakers in 

an unacceptable position. Lawmakers’ support for legislation 

can come from a variety of sources; one commissioner may 

support a particular piece of legislation for a blatantly 

unconstitutional reason, while another may support the same 

legislation for perfectly legitimate reasons. A well-intentioned 

lawmaker who votes for the legislation—even when [that 

lawmaker] votes in the knowledge that others are voting for it 

for an unconstitutional reason and even when [that 

lawmaker’s] unconstitutionally motivated colleague 

influences [that lawmaker’s] vote—does not automatically 

ratify or endorse the unconstitutional motive. If we adopt the 

rule suggested by Plaintiff, the well-intentioned lawmaker in 

this hypothetical would be forced either to vote against [their] 

own view of what is best for [the] county or to subject [the] 

county to Section 1983 liability. We think the law compels no 

such outcome. 

Id. at 1297-98 (emphases added). In a footnote, the Eleventh Circuit 

added, “We think this proposition is true even where—as Plaintiff argues 

is the case here—the properly motivated lawmaker has often voted the 

same way as the improperly motivated lawmaker.” Id. at 1298 n.2. 

So too here. The city can be subject to whistleblower retaliation liability 

only if the employee had presented competent substantial evidence at trial 

that Commissioners Lazarow and Lima-Taub, like Vice Mayor London, 

may have acted with retaliatory motives in voting to suspend and 

terminate the employee. The employee did not present any such evidence. 

And the fact that Vice Mayor London’s presentation—whether incomplete, 

slanted, false, or all of those—may have influenced Commissioners 

Lazarow and Lima-Taub, or that the three of them tended to vote as a 

majority bloc, does not change the result. Without evidence that 

Commissioners Lazarow’s and Lima-Taub’s non-retaliatory reasons were 

unworthy of belief, we cannot presume Commissioner Lazarow or LimaTaub shared Vice Mayor London’s alleged retaliatory motives. 

The added fact that Commissioner Lima-Taub had not been aware of 

the employee’s 2015 statements to the investigators at the time of her 

November and December 2016 votes to suspend and terminate the 

employee makes the lack of shared retaliatory motives even more 

compelling. Cf. Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1244-45 

(11th Cir. 2016) (holding the trial court properly granted summary 

judgment on the plaintiff’s action under Title VII of the 1964 Civil Rights 
11

Act for retaliation against a school board, where “[w]ithout any knowledge 

amongst the Board that [the plaintiff had] engaged in protected activity, 

[the plaintiff] cannot show that the activity caused the adverse renewal 

vote [on the plaintiff’s contract]”). 

Even if the equal standing of Vice Mayor London and Commissioners 

Lazarow and Lima-Taub somehow had permitted the “cat’s paw” theory’s 

application as a means to establish liability in the instant case, the 

undisputed facts here preclude such liability. That preclusion is 

demonstrated by Whitfield v. City of Hallandale Beach, Florida, 2021 WL 

4987938 (S.D. Fla. 2021), which coincidentally was the ultimate legal 

action arising from the city attorney’s internal racial discrimination 

complaint discussed earlier in this opinion. 

In Whitfield, in the months after the investigators had delivered their 

February 2016 report stating they had been unable to conclude thenCommissioner London had racially discriminated against the city attorney, 

Commissioner London moved to terminate the city attorney. Id. at *1. 

Then, at the same November 2016 meeting at which the city commission 

voted 3-2 to suspend the employee in the instant case, the same 3-2 

majority voted to terminate the city attorney “with cause.” Id.

The city attorney filed a multi-claim action against the city, including a 

Title VII retaliation claim. Id. After the action was removed to federal 

court, the city filed a summary judgment motion directed to the Title VII 

retaliation claim. Id. In response, the city attorney attempted to rely upon 

a “cat’s paw” theory, arguing Vice Mayor London’s and Commissioner 

Lazarow’s votes had influenced Commissioner Lima-Taub’s vote, such that 

Commissioner Lima-Taub had been a “cat’s paw.” Id. at *3. 

The federal district court rejected the city attorney’s argument and 

granted the city’s summary judgment motion. Id. at *3-5. 

In reaching its decision, the federal district court acknowledged that 

under a “cat’s paw” theory, “the animus of a non-decision-making employee

can be imputed to a neutral decisionmaker, if that decisionmaker did not 

conduct an independent investigation. In [such a] case, the non-decisionmaking employee is using the neutral decisionmaker as a ‘mere conduit’ 

or ‘rubber stamp.’” Id. at *3 n.2 (emphases added; citations omitted). 

However, despite acknowledging a “cat’s paw” theory requires the 

“animus of a non-decision-making employee” to exist—which did not exist 

because Vice Mayor London and Commissioners Lazarow and Lima-Taub 

were all equal decisionmakers—the trial court nevertheless considered 
12

whether Commissioner Lima-Taub had acted as a “cat’s paw” in the city 

commission’s vote to terminate the city attorney. The federal district court 

found the undisputed evidence showed Commissioner Lima-Taub had not 

acted as a “cat’s paw”:

[T]he undisputed evidence demonstrates that 

[Commissioner] [Lima-]Taub voted to terminate [the city 

attorney’s] employment after listening to the reasons 

articulated on the record and after listening to the entire 

discussion that took place between [Vice Mayor] London, 

[Commissioner] Lazarow, and [Mayor] Cooper, and [the city 

attorney] on the dias [sic], refuting [the city’s attorney’s]

argument that [Commissioner] [Lima-]Taub was a “cat’s paw.” 

...

....

[T]he undisputed record evidence shows that 

[Commissioner] [Lima-]Taub was not aware of [the city 

attorney’s] February 2015 complaint against [thenCommissioner] London when [Commissioner Lima-Taub]

voted to terminate [the city attorney’s] employment on 

November 29, 2016. Accordingly, [the city attorney’s]

retaliation claim fails for lack of the requisite causal nexus 

because decision-maker [Lima-]Taub was not aware of [the 

city attorney’s] protected conduct. Moreover, where, as here, 

not every Commissioner who [had] voted to terminate [the city 

attorney’s] employment had knowledge of [the city attorney’s]

complaint against London, a retaliatory motive cannot be 

attributed to the decision.

Id. at *3 (footnote omitted).

So too here, merely by substituting the employee in the instant case for 

the city attorney in Whitfield. Here, the undisputed evidence demonstrates 

Commissioners Lazarow and Lima-Taub voted to suspend and terminate 

the employee after listening to Vice Mayor London’s reasons for such 

suspension and termination, refuting the employee’s argument that either 

Commissioner Lazarow or Lima-Taub had merely been a “cat’s paw.” 

Further, the undisputed record evidence shows that Commissioner LimaTaub was not aware of the employee’s statements to the investigators in 

2015 when Commissioner Lima-Taub voted to suspend and terminate the 

employee in November and December 2016. Accordingly, the employee’s

whistleblower retaliation claim fails.
13

Conclusion 

Based on the foregoing, we conclude the circuit court erroneously 

denied the city’s directed verdict motion as to the employee’s whistleblower 

retaliation claim. Thus, we reverse the final judgment on the whistleblower 

retaliation claim. 

On the employee’s breach of contract claim, we conclude the jury’s 

verdict and damages award were supported by competent, substantial 

evidence. The city’s other arguments directed to the employee’s breach of 

contract claim lack merit. Thus, we affirm without further discussion the 

final judgment in the employee’s favor on his breach of contract claim. 

Our conclusion moots the city’s remaining arguments directed to the 

employee’s whistleblower retaliation claim. Our conclusion also moots the 

argument upon which the amicus filed its brief in support of the city, being 

directed solely to the issue of whether the Florida Public Whistle-blower’s 

Act, section 112.3187, Florida Statutes (2016), authorizes non-economic 

compensatory damages. As we have not reached those arguments, we 

provide no comment on those arguments. 

On remand, the circuit court shall enter an amended final judgment 

indicating that, on the employee’s whistleblower retaliation claim, 

judgment is entered in the city’s favor and the employee shall go hence 

without day. The amended final judgment also shall maintain that, on the 

employee’s breach of contract claim, judgment is entered in the employee’s

favor and against the city for the damages awarded on that claim. 

Affirmed in part, reversed in part, and remanded with instructions.

DAMOORGIAN, J., concurs. 

CIKLIN, J., concurs in part and dissents in part with opinion. 

CIKLIN, J., concurring in part and dissenting in part. 

I concur in the affirmance of the final judgment in the employee’s favor 

on his breach of contract claim. However, I dissent insofar as the majority 

reverses the final judgment on the whistleblower retaliation claim. My 

disagreement with the majority on this decision may be largely summed 

up within two reasons: (1) the city and now the majority rely on 

distinguishable case law involving claims under 42 U.S.C. § 1983, and (2) 

Whitfield v. City of Hallandale Beach, Florida, 2021 WL 4987938 (S.D. Fla. 

2021), does not foreclose application of cat’s paw liability in this case or in 

cases involving municipal decision-making bodies in general. 
14

Claims under § 1983 vs. Florida’s Whistle-blower’s Act/Title VII

The applicability or inapplicability of the cat’s paw theory of liability to 

the facts at hand is not nearly as well settled as the majority portrays it. 

For its conclusion that cat’s paw does not apply in this context, i.e., a 

cause of action under Florida’s Whistle-blower’s Act involving a municipal 

decision-making body, the majority relies on the general description of the 

typical application of cat’s paw liability in the employment law context from 

State v. Bracewell, 220 So. 3d 1228 (Fla. 1st DCA 2017).

But Bracewell did not involve the issue presented here, whether one 

member of a decision-making body can act as the monkey in the cat’s paw 

scenario. Thus, the Bracewell court did not consider that issue. Instead, 

the critical issue in Bracewell was whether an employee with retaliatory 

intent was empowered to make recommendations that could ultimately 

result in the government agency’s vicarious liability based on its blind 

adoption of the employee’s recommendation. Bracewell, 220 So. 3d at 

1234.

Additionally, if we are going to rely on general descriptions of the cat’s 

paw theory of liability, the United States Supreme Court has described 

cat’s paw liability in a way that could arguably encompass the scenario 

involved here, a commissioner whose lone vote is not sufficient to act but 

whose vote as a member of a majority constitutes an “ultimate employment 

decision.” See Staub v. Proctor Hosp., 562 U.S. 411, 415 (2011) (describing 

a ‘“cat’s paw’ case” as one where the employee seeks “to hold his employer 

liable for the animus of a supervisor who was not charged with making the 

ultimate employment decision” (citing Staub v. Proctor Hosp., 560 F.3d 

647, 655-56 (7th Cir. 2009))).

Going beyond these general descriptions, the applicability of cat’s paw 

liability has evolved over time, extending to scenarios once considered 

novel. See Marshall v. The Rawlings Co. LLC, 854 F.3d 368, 378-79 (6th 

Cir. 2017) (holding that plaintiff could assert a theory of cat’s paw liability 

where lower level employees influenced an intermediate decisionmaker, 

who in turn influenced the ultimate decisionmaker); Vasquez v. Empress 

Ambulance Serv., Inc., 835 F.3d 267, 273-76 (2d Cir. 2016) (holding “in the 

first instance” that “an employer may be held liable for an employee’s 

animus under a ‘cat’s paw’ theory, regardless of the employee’s role within 

the organization,” where the employer’s negligence gives effect to the 

employee’s animus and results in an adverse employment action); see also 

Bracewell, 220 So. 3d at 1232 (“The issue of which biased employees may 

subject their employer to cat’s paw liability has been percolating in the 
15

lower federal courts since [Staub] with no definitive consensus emerging.”). 

As the Tenth Circuit warned, the cat’s paw metaphor should not be taken 

too literally: 

Stripped of their metaphors, subordinate bias claims simply 

recognize that many companies separate the decisionmaking 

function from the investigation and reporting functions, and 

that racial bias can taint any of those functions. We see no 

reason to limit subordinate bias liability to situations that 

closely resemble the “cat’s paw,” “rubber stamp,” “conduit,” 

“vehicle,” or other metaphors that imaginative lawyers and 

judges have developed to describe such claims. 

E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, 450 F.3d 476, 488 

(10th Cir. 2006). 

My friends in the majority cite two cases relied on by the city for their 

holdings that municipal liability does not exist unless all members of a 

municipal body who voted against plaintiff in an employment 

determination shared the retaliatory animus: Matthews v. Columbia 

County, 294 F. 3d 1294 (11th Cir. 2002), and Mason v. Village of El Portal, 

240 F. 3d 1337 (11th Cir. 2001).1 However, Mason and Matthews involve 

section 1983 claims and contain no recognition or discussion of cat’s paw 

liability. It is not at all evident the plaintiffs in those cases sought to prove 

causation under a cat’s paw liability theory. If they had, perhaps the 

Eleventh Circuit would have found cat’s paw inapplicable as a matter of 

law in a section 1983 action. See Waters v. City of Chicago, 580 F.3d 575, 

586 n.2 (7th Cir. 2009) (explaining that cat’s paw liability “is steeped in 

agency principles which are applied in the Title VII context . . . but don’t 

apply to § 1983 municipal liability”); Kibardina v. Bd. of Tr. of Cmty. Coll. 

Dist., 508, No. 14 C 1351, 2015 WL 327356, at *3 (N.D. Ill. Jan. 23, 2015) 

(reading Waters as suggesting that cat’s paw liability does not apply to 

municipal employers under section 1983). 

By contrast, “Florida applies federal Title VII case law to the 

Whistleblower Act,” Rustowicz v. N. Broward Hosp. Dist., 174 So. 3d 414, 

1 The majority also cites Quigg v. Thomas County School District, 814 F.3d 1227 

(11th Cir. 2016), but Quigg merely recognizes that to establish causation in a 

Title VII retaliation claim, a plaintiff must show the decisionmakers were aware 

of the protected activity. Id. at 1245. Quigg does not address the alternative 

causation theory of cat’s paw and its application or nonapplication.
16

419 (Fla. 4th DCA 2015), and cat’s paw theory “is steeped in agency 

principles which are applied in the Title VII context,” Waters, 580 F.3d at 

586 n.2. Thus, arguably, Title VII cases are more persuasive in the context 

of the whistleblower retaliation claim at hand. Indeed, federal courts have 

found cat’s paw available in the context of Title VII claims.2 And this court 

itself has recognized that a plaintiff in a whistleblower case may attempt 

to establish causation through a cat’s paw theory. See Fla. Dep’t of Child. 

& Fams. v. Shapiro, 68 So. 3d 298, 306 (Fla. 4th DCA 2011). As the 

majority does not acknowledge, the city has not cited any Title VII case 

holding that, as a matter of law, a municipality may not be found 

vicariously liable under a cat’s paw theory of liability.

Because courts have recognized the applicability of cat’s paw liability 

in Title VII cases brought against municipalities, see Zamora, 798 F.3d at 

332, and Stimpson, 186 F.3d at 1332, it seems the real issue presented 

here is whether cat’s paw is a proper fit in a whistleblower or Title VII case 

where the actor with animus is also one of the decisionmakers.

Notably, courts have turned to the rationales underlying the theory of 

cat’s paw liability when considering the issue of a novel application of this 

theory of liability. See, e.g., Marshall, 854 F.3d at 378 (discussing the 

rationale underlying cat’s paw liability and determining that the agency 

principles that support its application to other types of claims also apply 

to claims of discrimination under the Family Medical Leave Act); Vasquez, 

835 F.3d at 273 (recognizing that “Congress has directed federal courts to 

interpret Title VII based on agency principles,” and turning to those 

principles for guidance in determining under what circumstances cat’s 

paw liability “will render an employer responsible for the animus of a lowlevel employee who works alongside the victim” (citation omitted)).

2 See Zamora v. City of Houston, 798 F.3d 326, 332 (5th Cir. 2015) (joining the 

6th, 8th, and 10th circuits in holding that cat’s paw may be applied in Title VII 

cases even under the more stringent “but for” causation standard of Nassar); 

Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999) (recognizing 

cat’s paw is “[o]ne way of proving” causation in a Title VII case); Whitfield, 2021 

WL 4987938, at *3 (finding the undisputed evidence refuted Whitfield’s cat’s paw 

theory with respect to her Title VII retaliation claim); Burlington v. News Corp., 55 

F. Supp. 3d 723, 733 (E.D. Penn. 2014) (observing though Staub’s analysis of 

cat’s paw is within the context of USERRA, it applies to Title VII cases as well, 

and citing cases where courts have concluded that Staub’s cat’s paw analysis 

applies to Title VII cases).
17

Missing from the city’s brief is any discussion of whether the rationales 

underlying cat’s paw liability render the theory inapplicable to the 

circumstances here.

Additionally, some case law suggests that cat’s paw liability can feasibly 

be applied to a scenario where a member of a body of decisionmakers 

influenced his fellow decisionmakers. See Walsh v. Town of Millinocket, 28 

A.3d 610, 617 (Me. 2011) (opining that the Matthews “approach appears 

to not fully appreciate the decision-making dynamics of local councils and 

commissions, which can be influenced by the improper but unstated views 

of a member with a particular interest in a matter to whom other members 

may defer in collegial discussions,” and observing that the opinion appears 

to be inconsistent with Staub as to the application of cat’s paw liability); 

see also Bledsoe v. Tenn. Valley Auth. Bd. of Dirs., 42 F.4th 568, 590 n.2 

(6th Cir. 2022) (Nalbandian, J., dissenting) (explaining that it is “not 

unheard of” for courts to apply the cat’s paw theory to “multiple 

decisionmakers” when they “choose to put their collective heads in the 

sand” and rely on discriminatory information supplied by the biased 

supervisor/member, citing multiple examples).

Perhaps hidden in the jurisprudence on this issue is a meritorious 

argument to be made warranting reversal, but the city has missed the 

mark by relying on § 1983 cases that do not discuss cat’s paw liability and 

without providing any briefing on the propriety of extending those holdings 

to Title VII/whistleblower claims where the plaintiff advances a cat’s paw 

theory of liability.

Whitfield Does Not Preclude Application of Cat’s Paw

The majority and the city also rely on Whitfield, but I read Whitfield, 

which involved claims under Title VII, § 1983, and FRCA, as, at a 

minimum, leaving open the application of cat’s paw in this context. The 

district court clearly states, “the undisputed evidence demonstrates that 

Taub voted to terminate Whitfield’s employment after listening to the 

reasons articulated on the record and after listening to the entire 

discussion that took place between London, Lazarow, and Cooper, and 

Whitfield on the [dais], refuting Plaintiff’s argument that Taub was a ‘cat’s 

paw.’” Whitfield, 2021 WL 4987938, at *3 (emphasis added). This 

sentence obviously suggests that the court considered a cat’s paw theory 

on the merits but then rejected it due to lack of evidence.

Additionally, although the Whitfield suit arose out of some of the 

circumstances that resulted in the employee’s termination here, it is a 

completely different suit, involving completely different protected activity 
18

and a completely different final termination hearing, and presumably at 

least some different evidence.

Conclusion

I appreciate the compelling policy considerations spelled out in 

Matthews, 294 F.3d at 1297-98, and quoted by the majority, and I do not 

seek to discount those considerations. But the fact simply remains that 

the city has not demonstrated that a cat’s paw theory of causation cannot 

apply to a whistleblower retaliation claim involving a municipal body of 

decision-makers. That is, the city has not made its case. For that reason, 

reversal on this argument is not warranted. See Applegate v. Barnett Bank 

of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (“In appellate 

proceedings[,] the decision of a trial court has the presumption of 

correctness and the burden is on the appellant to demonstrate error.”); 

Snowden v. Wells Fargo Bank, 172 So. 3d 506, 507 (Fla. 1st DCA 2015) 

(recognizing that even under a de novo standard of review, the appellant 

has the burden of demonstrating error).

In the end, the evidence, taken, as we are required to do—in the light 

most favorable to the employee—demonstrated that Commissioner London 

orchestrated a retaliatory campaign against the employee and that the 

other commissioners in the majority blindly followed. The three 

commissioners voting in the majority had a previous working relationship: 

Commissioner London had served as campaign manager for both 

Commissioners Lima-Taub and Lazarow. Commissioner Lima-Taub 

admitted, at a commission meeting which occurred after the employee had 

been terminated, that she “entirely adopted” Commissioner London’s 

misleading representation of the case. She also testified Commissioner 

London had omitted key information regarding the employee’s alleged 

misconduct in relation to his use of an employee credit card, which

omission resulted in her deeming the employee’s conduct as “theft.” 

Commissioner Lazarow testified Commissioner London had not disclosed

that the employee’s allegedly questionable use of his employee credit card 

had occurred when the employee was the deputy city manager. 

Commissioner Lazarow acknowledged the city does not discipline deputy 

city managers.

Other city employees testified that the city did not follow protocol 

responding to the employee’s public records request, which resulted in the 

employee receiving the requested records after his hearing was held.

According to the former deputy and interim city manager, who was 

involved in collecting the requested records, the records were ready for 

release several days before the final hearing. Under normal protocol, the 
19

records would be reviewed by city staff trained in responding to public 

records requests. However, she was directed by the city’s special counsel 

in the whistleblower case to submit the records to special counsel for 

review after city staff had conducted its review. Some of the records would 

have refuted Commissioner London’s claims. But the records were not 

released to the employee until January 6, days after the public hearing.

In contrast, when Commissioner London made a public records request in 

November 2016, he indicated the records should be available the same 

day.

The jury considered this evidence and made credibility determinations 

that did not favor the city’s theory of the case. I would not reverse under 

these circumstances, based on the city’s reliance on cases that do not 

address the issue raised here in the context of a whistleblower retaliation 

or Title VII claim, and where the city did not make it apparent that the 

rationales underlying cat’s paw liability preclude its application here. 

Perhaps cat’s paw liability has no place in a case like this one, but that 

has not been made apparent by the city’s briefing, and “[i]t is not this 

court’s role to rebrief an appeal.” See Davis v. Sheridan Healthcare, Inc., 

281 So. 3d 1259, 1274 (Fla. 2d DCA 2019) (Black, J., dissenting). 

Accordingly, I dissent with respect to reversal of the judgment on the 

whistleblower claim.

* * *

Not final until disposition of timely filed motion for rehearing.