Bechtel v. City of Belton, MO.

• Decision Date: 08 January 2001
• Docket Number: No. 00-1591,00-1591
• Citation: 250 F.3d 1157
• Parties: (8th Cir. 2001) RANDAL L. BECHTEL, APPELLEE, v. CITY OF BELTON, MISSOURI, APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1157

250 F.3d 1157 (8th Cir. 2001)

RANDAL L. BECHTEL, APPELLEE, v. CITY OF BELTON, MISSOURI, APPELLANT.

No. 00-1591

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: January 8, 2001

Filed: May 14, 2001

Appeal from the United States District Court for the Western District of Missouri

Before Hansen and Heaney, Circuit Judges and Webber, ¹ District Judge.

Webber, District Judge

The District Court ² granted defendant's motion for summary judgment on Randal L. Bechtel's ("Bechtel") First Amendment freedom of speech claim for retaliation filed pursuant to 42 U.S.C. 1983 and on his state action claim for unlawful employment retaliation. Bechtel argues only the merits of his first amendment claim in this appeal. We affirm.

I.

Bechtel currently holds the same position of Assistant Fire Chief in the Belton Emergency Services Department ("Fire Department") for the City of Belton, Missouri, that he held when he alleges his constitutional rights were violated. The Fire Department is divided into shifts A, B and C. At the time of the alleged retaliatory actions by the City of Belton ("City"), Bechtel, as Assistant Fire Chief, was in charge of B shift, reporting to Chief Deputy Neil Bangs and Fire Chief Herman Denkler. The chain of command for the Belton Emergency Services Department is Firefighter, Captain, Assistant Fire Chief, Deputy Fire Chief, Fire Chief, Assistant City Administrator, and City Administrator.

Beginning in 1993, Bechtel spoke at fire department meetings, to an assistant city administrator and to a city councilman about his concerns related to the Fire Department's deficiencies in pre-fire planning for public and multi-occupancy buildings, in physical fitness requirements, in radio communication equipment, in operating procedures, and he raised issues concerning manufacturing faults on a new ambulance. Bechtel claims that retaliatory action was taken against him by the City in that he was denied performance evaluations and the possibility of earning a merit increase; he did not receive a longevity pay check because he had not been given his final step increase; and he was placed on "secret probation." He seeks a remedy for the City's alleged retaliatory actions taken against him because of the exercise of his First Amendment free speech rights. ³

The City Administrator has ultimate authority to approve or rescind departmental personnel decisions under the City's appeal mechanism for review of disciplinary action imposed against employees. After Bechtel was suspended in 1997 for allegedly mishandling a personnel matter, Assistant City Administrator, Brad Foster, in the absence of the City Administrator, favorably considered Bechtel's appeal by rescinding his suspension, rewriting his performance evaluation, and substituting a reprimand in place of the formerly imposed suspension. At the time of Bechtel's aforementioned suspension, B shift was experiencing documented problems. Several firefighters filed grievances regarding Bechtel's behavior. Bechtel has sought no other redress for any claimed wrongful action through the City's appellate procedures at any time since his successful appeal of the suspension.

II.

Bechtel's first point on appeal is that the District Court erred in granting the City's motion for summary judgment because genuine issues of material fact remain that should only be resolved by jury determination. "We review a grant of summary judgment de novo, applying the same standard as the district court: whether the record, viewed in a light most favorable to the non-moving party, shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Roberson v. Hayti Police Dept., 241 F.3d 992, 994 (8th Cir. 2001) (quoting Rabushka v. Crane Co., 122 F.3d 559, 562 (8th Cir. 1997)). The Court is to view the evidence and the inferences which may reasonably be drawn from it in the light most favorable to the nonmoving party. Lambert v. City of Dumas, 187 F.3d 931, 934 n.3 (8th Cir. 1999) (citing Enterprise Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996)).

The facts most favorably considered for Bechtel reflect that in the Spring of 1997, Ronald Trivitt ("Trivitt"), City Administrator; Brad Foster ("Foster"), Assistant City Administrator; Fire Chief Herman Denkler ("Denkler"); Chief Deputy Fire Chief Neil Bangs ("Bangs"); and Captain Tad Riggert ("Riggert") met in City Hall and discussed some issues relating to the B shift supervised by Bechtel. The exact scope of their discussion is unknown, but thereafter Denkler transferred Riggert to B shift where he was to report anything to Bangs that Riggert regarded as non-performance or poor performance on B shift. Additionally, Bechtel claims that firefighter Barry Kuhns was transferred to B shift to develop evidence of non-performance on B shift, to "spy" on Bechtel and to gather information to be used against him in retaliation for exercise of his free speech. Fire Chief Richard R. Davidson replaced Denkler in 1999 and was told by Riggert that he had been instructed to report poor performance on B shift to Bangs back in 1997.

Bechtel received no performance evaluation merit increase for 1997. Trivitt instructed Denkler to review Bechtel's performance for that year, but Denkler failed to make that review. Bechtel neither complained to nor notified Trivitt of his failure to receive a performance evaluation or merit increase for 1997. While he received a performance evaluation in 1998, he received no merit increase, but again neither complained nor appealed the evaluation.

To support Bechtel's argument that Riggert was placed on B shift as a spy by senior officials in the Fire Department and the City, he offers, in part, segments of Riggert's deposition testimony. One version of Riggert's testimony suggests that Bangs and Denkler instructed him and others to document Bechtel's activities on B shift and that Trivitt and Foster were aware of the instructions. Bangs and Denkler deny any instruction to Riggert to spy on Bechtel and others. In other testimony, Riggert says Trivitt and Foster were not present at the meeting. It is undisputed that while Riggert documented Bechtel's activities while working on B shift, no written conclusions of Riggert or Denkler, or anyone associated with the personnel transfers, were placed in Bechtel's personnel file. There is no evidence that the City Administrator was ever notified of any reports or actions of the transferred personnel concerning Bechtel. During oral argument, Bechtel's counsel emphasized the existence of genuine issues of material fact concerning the presence or absence of Trivitt at the meeting. Bechtel also claims error of the District Court in precluding him from obtaining copies of personnel files.

III.

A lawsuit may be maintained under 42 U.S.C. 1983 for a municipality's violation of an employee's constitutional rights by actions of an individual representing official policy.

We conclude, therefore, that a local government may not be sued under 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under 1983.

Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018 (1978). Under this standard, Bechtel can assert a claim for relief against the City for a constitutional tort if he meets two fundamental prerequisites. First, he must show that the municipality acted to inflict an injury through an official proclamation of the municipality's officers (officials whose edicts or acts represent official policy) or through custom. ⁴ Secondly, he must show constitutional injury.

"We have assumed that an unconstitutional governmental policy could be inferred from a single decision taken by the highest officials responsible for setting policy in that area of the government's business." City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915 (1988) (citing Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398 (1980)). "[A] 'policy' is an official policy, a deliberate choice of a guiding principle or procedure made by the municipal official who has final authority regarding such matters." Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999) (citing Ware v. Jackson County, 150 F.3d 873, 880 (8th Cir. 1998)).

Bechtel argues that there is a genuine issue of material fact in dispute under the first element of Monell. The District Court's opinion and Bechtel's counsel's argument documented Riggert's conflicting statements concerning the presence of Trivitt at the meeting in which Riggert was allegedly instructed to document the activities of Bechtel on B shift. Riggert first stated that Trivitt was present at this meeting. However, he later recanted and stated that he was not present at this meeting. According to Bechtel, the presence or absence of Trivitt constituted a genuine issue of material fact and the District Court erred in entering summary judgment in favor of the City.

To survive a motion for summary judgment, Bechtel must come forward with factual support that Trivitt acted in retaliation because of the exercise of Bechtel's protected First Amendment rights. Considering the record in the light most favorable to Bechtel, Trivitt and Foster, according to Riggert, was aware of Denkler's actions. There is no evidence that Trivitt or Foster at any time ordered Riggert either to report to B shift or to gather information that could support allegations of inappropriate conduct in retaliation against Bechtel or that Foster or Trivitt took any retaliatory action against Bechtel. Bechtel alternatively argues that Denkler, not Trivitt, had final decision-making authority, because Riggert testified on one...