Diane Bolderson v. City of Wentzville

Filing

OPINION FILED - THE COURT: Roger L. Wollman, Morris S. Arnold and Jane Kelly AUTHORING JUDGE:Morris S. Arnold (PUBLISHED) [4464768] [15-3846]

United States Court of Appeals
For the Eighth Circuit
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No. 15-3846
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Diane Bolderson
lllllllllllllllllllll Plaintiff - Appellant
v.
City of Wentzville, Missouri
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: September 20, 2016
Filed: November 1, 2016
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Before WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
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ARNOLD, Circuit Judge.
This case involves an employment dispute between the City of Wentzville,
Missouri, and its former building commissioner, Diane Bolderson. Bolderson's
employment proceeded without incident for about twelve years, but significant
difficulties arose when she criticized changes to the city's building code, requested
an advisory opinion on the bidding process for purchasing computer equipment, and

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asked for an audit of the city's procurement department. Difficulties came to a boil
when Bolderson criticized the city's handling of an aquatic-center project. She sent
a memo voicing her concerns to the city administrator, the mayor, her immediate
supervisor, and others. About two weeks later, Bolderson forwarded a formal report
to the mayor, city attorney, and others, accusing the city's board of aldermen, the city
administrator, and the city's procurement director of fraud and acting with conflicts
of interest. The city administrator fired her four days after she submitted the report.
He gave Bolderson a list of reasons for her termination, which included her
disparagement of city officials, criticism of the board's decisions, insubordination by
communicating directly with the mayor, baseless accusations of fraud, misuse of work
time, and disruption of city operations.
Bolderson sued the city under 42 U.S.C. § 1983, alleging, as relevant here, that
it fired her in retaliation for engaging in protected speech. The district court1 granted
summary judgment to the city, holding that, though Bolderson spoke on a matter of
public concern, she did so in her official capacity as building commissioner and not
as a private citizen. See Garcetti v. Ceballos, 547 U.S. 410, 424 (2006). The district
court also concluded that, even if Bolderson had spoken as a private citizen, her
claims would have failed the Pickering balancing test. See Pickering v. Bd. of Educ.
of Twp. High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563 (1968). The district court
noted alternatively that the city would be able to demonstrate that it would have
terminated Bolderson anyway, even if she had not engaged in the allegedly protected
speech. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977). Bolderson appeals the district court's decision to grant summary judgment to
the city.

1

The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
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We can affirm the grant of summary judgment for any reason supported by the
record, including a reason different from the one that the district court gave, Bishop
v. Glazier, 723 F.3d 957, 961 (8th Cir. 2013), and we conclude that the present record
simply cannot support a conclusion that the city is liable. A municipality cannot be
held liable under § 1983 solely because it employs a tortfeasor, Monell v. Dep't of
Soc. Servs., 436 U.S. 658, 691 (1978): Liability for a constitutional violation will
attach to a municipality only if the violation resulted from an official municipal
policy, an unofficial custom, or a deliberately indifferent failure to train or supervise
an official or employee. Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1214
(8th Cir. 2013). Bolderson maintains that the city is liable because her harm stemmed
from an official municipal policy or an unofficial municipal custom.
An action can constitute official municipal policy only if the decisionmaker in
question possesses final authority to establish municipal policy with respect to the
action ordered. Hess v. Ables, 714 F.3d 1048, 1054 (8th Cir. 2013). We look to
applicable state and local law to determine where final policymaking authority rests.
Davison v. City of Minneapolis, Minn., 490 F.3d 648, 662 n.9 (8th Cir. 2007). A
single decision by a municipal authority can in some circumstances constitute official
policy, see Pembaur v. City of Cincinnati, 475 U.S. 469, 480–81 (1986), and
Bolderson argues that the city administrator's decision to fire her necessarily
constituted official city policy because the city administrator is the highest-ranking
official over employment matters under applicable state and local law.
We disagree. The applicable Wentzville ordinance shows unquestionably that
the city administrator is not the final municipal authority for present purposes: The
ordinance provides that "[t]he City Administrator shall be the chief administrative
assistant to the Mayor, and shall have general superintending control of the
administration and management of the government business, officers and employees
of the City, subject to the direction and supervision of the Mayor." Wentzville, Mo.,
Code § 120.180. That the city administrator is deemed an "administrative assistant to
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the Mayor" who acts "subject to the direction and supervision of the Mayor" shows
that it is the mayor—not the city administrator—who has ultimate authority to hire
and fire employees.
We note further that we have adopted the distinction between final
policymakers and final decisionmakers that a Supreme Court plurality drew in
Pembaur: The fact that "a particular official—even a policymaking official—has
discretion in the exercise of particular functions does not, without more, give rise to
municipal liability based on an exercise of that discretion." Davison, 490 F.3d at 660.
So possessing "discretion to hire and fire does not necessarily include responsibility
for establishing related policy." Id. Therefore, the city administrator's power to hire
and fire employees, assuming that power existed here, could not transform him into
a policymaker.
Bolderson also contends that the mayor's delegation of authority to the city
administrator to address Bolderson's criticisms and the mayor's alleged tacit approval
of the city administrator's decision to terminate her establishes municipal liability. We
disagree again, because, as a plurality of the Supreme Court stated in City of St. Louis
v. Praprotnik, 485 U.S. 112, 130 (1988), "Simply going along with discretionary
decisions made by one's subordinates . . . is not a delegation to them of the authority
to make policy." See also Williams v. Butler, 863 F.2d 1398, 1402 (8th Cir. 1988) (en
banc). Bolderson therefore has not shown that the mayor's delegation of authority or
tacit approval of the city administrator's decision was the moving force behind her
termination. See Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397,
404 (1997). In fact, Bolderson says that the city administrator was the sole
decisionmaker with regard to her termination. Without a showing that the mayor
played a more active role in Bolderson's termination, she cannot demonstrate that the
city is liable; otherwise the city could be liable solely as an employer of an alleged
tortfeasor.

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Bolderson further maintains that the mayor and city administrator each violated
the city's anti-fraud policy in the way that they handled her report. We cannot see how
officials' deviation from established policy itself constitutes official municipal policy.
If it did, the concept of official municipal policy would be turned on its head.
We also reject Bolderson's contention that an unofficial municipal custom led
to a violation of her constitutional rights. To trigger municipal liability based on
unofficial municipal custom, the custom must be so pervasive among
non-policymaking employees of the municipality that it effectively has the force of
law. Ware v. Jackson Cnty., Mo., 150 F.3d 873, 880 (8th Cir. 1998). The custom must
be demonstrated by a continuing, widespread, and persistent pattern of
unconstitutional misconduct. Id. An unconstitutional custom or usage cannot arise
from a single act. McGautha v. Jackson Cnty., Mo., Collections Dep't, 36 F.3d 53, 57
(8th Cir. 1994).
Bolderson maintains, finally, that her harm stemmed from an unofficial
municipal "custom of discouraging reports of misconduct or corruption by city
officials." It is difficult to see exactly how Bolderson can rely on such a custom to
support her claim, unless she is insinuating that the custom is proof that she was
retaliated against for exercising her First Amendment rights. The inference she asks
us to draw is weak at best. The fact that an employer does not like complaints is not
much evidence that it fires people for making them. Bolderson's evidence that there
was such a policy, moreover, is similarly weak. She says that the city did not intend
to investigate her complaint, but this single act could not show a continuing,
widespread, and persistent pattern of unconstitutional misconduct. Bolderson
tangentially refers to other evidence of the custom that she claims victimized her, but
the materials cited reveal only unsubstantiated suspicions. Bolderson is obligated to
meet proof with proof at the summary-judgment stage, Conseco Life Ins. Co. v.
Williams, 620 F.3d 902, 909 (8th Cir. 2010), and the material offered falls short of
demonstrating a reasonable dispute about the presence of a continuing, widespread,
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and persistent pattern of unconstitutional misconduct that led to her termination. No
reasonable jury could conclude otherwise. See Rohr v. Reliance Bank, 826 F.3d 1046,
1052 (8th Cir. 2016).
Affirmed.
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