Bolderson v. City of Wentzville

• Decision Date: 01 November 2016
• Docket Number: No. 15-3846,15-3846
• Citation: 840 F.3d 982
• Parties: Diane Bolderson, Plaintiff–Appellant, v. City of Wentzville, Missouri, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

840 F.3d 982

Diane Bolderson, Plaintiff–Appellant,

v.City of Wentzville, Missouri, Defendant–Appellee.

No. 15-3846

United States Court of Appeals, Eighth Circuit.

Submitted: September 20, 2016

Filed: November 1, 2016

Kevin J. Dolley, Mark Joseph Obermeyer, LAW OFFICES OF KEVIN J. DOLLEY, Saint Louis, MO, Ryan C. Mielcarek, MIELCAREK LAW FIRM, Brentwood, MO, for Plaintiff–Appellant.

Matthew J. Gist, Remington B. Smith, ENSZ & JESTER, Kansas City, MO, for Defendant–Appellee.

Before WOLLMAN, ARNOLD, and KELLY, Circuit Judges.

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 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, 126 S.Ct. 1951, 164 L.Ed.2d 689 (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, 88 S.Ct. 1731, 20 L.Ed.2d 811 (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, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Bolderson appeals the district court's decision to grant summary judgment to the city.

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, 98 S.Ct. 2018, 56 L.Ed.2d 611 (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, 106 S.Ct. 1292, 89 L.Ed.2d 452 (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 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...