Meyers v. City of Cincinnati

• Citation: 14 F.3d 1115
• Decision Date: 31 March 1994
• Docket Number: No. 92-3258,92-3258
• Parties: 63 Empl. Prac. Dec. P 42,807, 1994 Fed.App. 15P John MEYERS, Plaintiff-Appellee, v. CITY OF CINCINNATI, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1115

14 F.3d 1115

63 Empl. Prac. Dec. P 42,807, 1994 Fed.App. 15P

John MEYERS, Plaintiff-Appellee, v. CITY OF CINCINNATI, Defendant-Appellant.

No. 92-3258.

United States Court of Appeals Sixth Circuit.

Argued April 29, 1993.

Decided Jan. 21, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied March

31, 1994. ^*

William S. Wyler (argued and briefed), Donna M. Bergmann (briefed) and Donald B. Hordes (briefed), Schwartz, Manes & Ruby, Cincinnati, OH, for plaintiff-appellee.

James F. McCarthy, III (argued and briefed), City Solicitor's Office for the City of Cincinnati, Cincinnati, OH, for defendant-appellant.

Before: MERRITT, Chief Judge; and KEITH and SUHRHEINRICH, Circuit Judges.

MERRITT, Chief Judge.

This is an appeal from a judgment for the plaintiff in a civil rights case brought under 42 U.S.C. Sec. 1983. On the recommendation of Cincinnati's Director of Safety, the City Manager forced the retirement of the plaintiff, Mr. John Meyers, a 30-year official of the fire department. The Civil Service Commission ruled against Meyers' appeal and left the decision of the City Manager in effect. This court has previously held that city officials forced Meyers to retire based upon disapproval of statements made by Meyers which were protected by the First Amendment. Thus we have held that the officials effectively discharged Meyers in violation of the First Amendment. We do not revisit that decision here. The essential facts on which our previous decision was based are set out in Meyers v. City of Cincinnati, 934 F.2d 726 (6th Cir.1991). We remanded the case for further proceedings including resolution of the issues concerning the City's liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which permits municipal liability under Sec. 1983 for damages arising from the application of unconstitutional municipal policies and customs but not for employee conduct on a theory of respondeat superior.

District Judge Rubin concluded that the City was liable under Monell, and awarded plaintiff $393,445 in damages consisting of $368,445 for loss of pay and $25,000 for mental anguish, humiliation, and loss of reputation. The City of Cincinnati contends that it is not liable under Monell because city officials were not following a "custom or policy" within the meaning of Monell, and plaintiff's constructive discharge was not pursuant to a "final policy" attributable to the City. The City also contends that the damage award is excessive. We agree with Judge Rubin that the decision to engage in conduct in violation of the First Amendment was made or approved by a final policy-maker of the City of Cincinnati and that this conduct is sufficient to trigger municipal liability under Monell. We also agree with Judge Rubin in his award of damages and hence affirm the judgment below.

We address first the City's Monell defense. In Monell, the Supreme Court established that Sec. 1983 applies to municipalities and local governments. Monell, 436 U.S. at 690, 98 S.Ct. at 2035. A municipality is not, however, liable for every misdeed of its employees and agents. "Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under Sec. 1983." Id. at 694, 98 S.Ct. at 2037-38.

In 1987, Cincinnati's Fire Chief instructed Meyers, the Assistant Fire Chief in charge of personnel, to investigate distribution of "unauthorized literature" to potential fire department recruits. This "literature" turned out to be business cards from PREP, Inc., an organization funded by the Department of Labor to help minorities compete for jobs. Meyers contacted PREP and spoke to Daisy Foster and Lucy Green. Foster and Green interpreted Meyers' questions and statements to be criticism of affirmative action and complained to city officials. These officials investigated, held a disciplinary hearing, and decided to demote Meyers to district chief. The final decision was made by the City's Director of Safety and approved by the City's highest executive officer, the City Manager. Rather than accept the demotion and lose substantial retirement benefits, Meyers agreed to retire at the rank of assistant chief. Meyers then petitioned the municipal Civil Service Commission to restore him to his position. The Commission ruled that Meyers had voluntarily retired, a decision contrary to our previous decision as a matter of federal law that Meyers had been forced out in violation of the First Amendment.

The City argues that it is not liable under Monell because Meyers was not discharged pursuant to a formal city "policy." The City states, as though it is dispositive, that "[t]here is no evidence of any policy or custom of disciplining municipal employees for exercising their right of free speech. There is no evidence that any final policy-making official ever promulgated a policy of disciplining City employees for exercising their rights of free speech." Petitioner's Brief at 17. No municipal official in his right mind would advocate such a general policy. The City is not accused of routinely disciplining employees for exercising First Amendment rights or of having an officially promulgated policy to that effect. Its highest officials--the Safety Director, the City Manager and the Civil Service Commission--acted together to discipline John Meyers for exercising his constitutional rights in this one case.

The requirement that a municipality's wrongful actions be a "policy" is not meant to distinguish isolated incidents from general rules of conduct promulgated by city officials. It is meant to distinguish those injuries for which "the government as an entity is responsible under Sec. 1983," Monell, 436 U.S. at 694, 98 S.Ct. at 2038, from those injuries for which the government should not be held accountable. "Monell is a case about responsibility." Pembaur v. City of Cincinnati, 475 U.S. 469, 478, 106 S.Ct. 1292, 1297, 89 L.Ed.2d 452 (1986). "The 'official policy' requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible." Id. at 479-80, 106 S.Ct. at 1298.

The City of Cincinnati's argument is that even if it did violate Meyers' First Amendment rights, it did not do so pursuant to a general rule disfavoring free speech. In Pembaur, the Supreme Court addressed and rejected the same argument, holding that "it is plain that municipal liability may be imposed for a single decision by municipal policy-makers under appropriate circumstances." Id. at 480, 106 S.Ct. at 1298. ¹ The City's contention that Meyers' constructive discharge was an isolated incident does not, therefore, save the City from liability. If the decision to punish him for exercising his constitutional rights was made by the "government's authorized decisionmakers" the City is responsible.

The City also relies on Monell to argue that municipal liability is precluded by the existence of a formal process of appeal to the Civil Service Commission. The Director of Safety and the City Manager are not final policy-making officials, the City contends, because employment decisions are reviewable by the Commission. Cincinnati's Charter, Article IV, Sec. 1, makes the City Manager "chief executive and administrative officer of the City." The City Manager is authorized to "dismiss, suspend and discipline all officers and employees in the administrative service under the control of the City Manager." Administrative Code of the City of Cincinnati, Article II, Sec. 1. The City Manager's employee disciplinary actions are reviewable by the Civil Service Commission. Upon the suspension, demotion, or removal of a chief of the Fire Department, the affected employee may file an appeal with the Commission. R.C. 124.34. The Commission is then required to hear the appeal within thirty days of its filing and may "affirm, disaffirm, or modify the judgment of the appointing authority." Id.

The Commission's review does not preclude liability; on the contrary, the Commission's denial of Meyers' appeal is the ultimate source of liability in this case:

When a subordinate's decision is subject to review by the municipality's authorized policymakers, they have retained the authority to measure the official's conduct for conformance with their policies. If the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.

City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 926, 99 L.Ed.2d 107 (1988). Meyers filed a timely appeal with the Commission, and the Commission ruled against him on the grounds that he had "voluntarily" retired, a substantive determination that he was not coerced which we found to be untrue as a matter of federal law. This decision was final and marked the end of the City's appeal process for Meyers. A municipality may not escape Monell liability, as our dissenting colleague argues, by simply delegating decisionmaking authority to a subordinate official and thereafter studiously refusing to review his unconstitutional action on the merits.

That the Commission reached a final conclusion distinguishes this case from Praprotnik, in which the local Civil Service Commission stayed any action on the plaintiff's complaint pending the outcome of federal litigation on the matter. It is clear that the decision in Praprotnik turns on the fact that in that case the plaintiff submitted no evidence to show that the Commission had ever "so much as hinted that the unconstitutional acts of lower officials were permissible." Id., 485 U.S. at 128, 108 S.Ct. at 927. In Praprotnik the Commission had never...