Gillette v. Delmore

• Citation: 979 F.2d 1342
• Decision Date: 10 November 1992
• Docket Number: No. 91-35142,91-35142
• Parties: James GILLETTE, Plaintiff-Appellee, v. Duane DELMORE, Defendant, and City of Eugene, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1342

979 F.2d 1342

James GILLETTE, Plaintiff-Appellee, v. Duane DELMORE, Defendant and City of Eugene, Defendant-Appellant.

No. 91-35142.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 5, 1992.

Decided Nov. 10, 1992.

William F. Gary and Glenn Klein, Harrang Long Watkinson Arnold & Laird, Eugene, Or., for defendant-appellant.

Michael V. Phillips, Johnson, Clifton, Larson & Bolin, Eugene, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before: WALLACE, Chief Judge, GOODWIN, Circuit Judge, and CROCKER, ^* District Judge.

PER CURIAM:

The City of Eugene (City) appeals from the district court's judgment following a jury trial in favor of James Gillette, a former City fire fighter, in his 42 U.S.C. § 1983 suit. Gillette argued that he was suspended from his employment in violation of his First Amendment speech rights. The central issue on appeal is whether, for purposes of municipal liability under section 1983, the City Manager made city policy by declining to overrule a subordinate's discretionary decision to fire Gillette. We hold that such conduct does not give rise to municipal liability. We also conclude that municipal liability does not arise in this case because Gillette was not suspended pursuant to a city policy or custom. Accordingly, we reverse the district court's denial of the City's motion for judgment notwithstanding the verdict (JNOV).

I. FACTS AND PROCEDURAL BACKGROUND

On May 31, 1983, Battalion Chief Duane Delmore notified Gillette that he was charged with three incidents of misconduct that warranted his termination. Gillette was suspended with pay and informed of his right to respond to the charges.

The focus of this litigation is the third incident, an emergency medical call on May 19, 1983. In that incident, Gillette was dispatched along with two other fire fighters, two fire department medics, and two police officers to the home of James Dunsmoor. The police officers and three of the fire department personnel forcibly restrained Dunsmoor, who appeared to be intoxicated and was profanely ordering the fire fighters and police officers to leave. Dunsmoor was handcuffed, bound to a stretcher, and transported to a hospital. According to the testimony at trial, Gillette told the acting fire captain, Mr. Wallenius, that he believed "[t]his is not being handled very well" and that "[w]e're not doing this right." Gillette also told bystanders in Dunsmoor's house that the situation was not being handled properly, but he urged them to remain calm. Gillette testified that after Dunsmoor was on the stretcher Dunsmoor spit on a police officer's shoes, whereupon another officer, Heide, smashed Dunsmoor's head three or four times against an aluminum bar at the end of the stretcher. According to Gillette, when he was outside the house he said to Officer Heide, "We may as well let him die on his own rather than us kill him."

After hearing Gillette's response to the misconduct charges, Battalion Chief Delmore terminated Gillette, effective June 7, 1983. Gillette appealed Delmore's decision to Fire Chief Everett Hall. Hall reviewed de novo the disciplinary charges and Gillette's employment record, conducted a brief hearing, and affirmed Gillette's termination. Gillette then filed a formal grievance pursuant to a collective bargaining agreement between the City and the fire fighters' union. The matter proceeded to arbitration, and the arbitrator determined that Gillette should be reinstated, without back pay or benefits, on January 11, 1984. Thus, the discipline ultimately imposed on Gillette was a seven-month suspension without pay. Gillette's employment was again terminated in June of 1984 for unrelated reasons.

On May 31, 1985, Gillette filed suit under 42 U.S.C. § 1983 against individual city employees and the City itself alleging several constitutional violations. The individual defendants were dismissed from the case, and the district court granted summary judgment in favor of the City on September 15, 1986, on the ground that Gillette's speech during the Dunsmoor incident was not constitutionally protected. On appeal, we held that Gillette's comments at the emergency call scene involved a matter of public concern. Gillette v. Delmore, 886 F.2d 1194 (9th Cir.1989) (Gillette I ). We concluded that triable issues of fact remained: whether Gillette's interest in commenting on matters of public concern outweighed the City's interest in promoting the efficient delivery of public services, see Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 1687, 75 L.Ed.2d 708 (1983), and whether the City would have terminated Gillette in any event based on the other misconduct charges, see Allen v. Scribner, 812 F.2d 426, 433-36 (9th Cir.1987). We therefore affirmed in part, reversed in part, and remanded for trial on the issue of whether Gillette's First Amendment rights were violated when he was disciplined for his comments at the call scene. Gillette I, 886 F.2d 1194.

A United States Magistrate tried the case to a jury. Gillette sought recovery for emotional distress he said he suffered during the seven months between his termination and reinstatement. The City was the only remaining defendant. Gillette attempted to establish municipal liability under 42 U.S.C. § 1983, which requires the plaintiff to establish that his constitutional rights were violated as a result of a policy or custom of the municipality. See Monell v. Department of Social Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978) (Monell ). The jury found the City liable and awarded Gillette $60,000 in general damages and $18,006 in special damages for lost wages. The City moved for JNOV and, in the alternative, for a new trial. The City argued first that Gillette had produced no evidence that the City Manager or City Council had adopted or ratified a policy or custom that caused Gillette's alleged unconstitutional termination. The City also argued for a new trial on the ground that the district court had erred in excluding evidence relating to other sources of emotional distress in Gillette's life after Gillette had "opened the door" by testifying to emotional distress he suffered after the seven-month period between his termination and reinstatement.

The district court denied the City's JNOV motion on the ground that the City Manager's acquiescence in Fire Chief Hall's decision to terminate Gillette constituted an act of municipal policymaking for purposes of Monell. On the damages question, the district court found that $60,000 was an excessive award for emotional distress and that "it is likely that the jury's excessive award was based on the jury's reliance on testimony concerning plaintiff's emotional distress up to and through the time of trial." The court concluded that it had committed prejudicial error in excluding the City's proffered evidence. Rather than ordering a new trial, however, the court offered Gillette the choice of a new trial or a remittitur reducing the general damages to $30,000. Gillette accepted the remittitur, and the City timely appealed.

II. STANDARD OF REVIEW

We review de novo the district court's denial of the City's motions for a directed verdict and for JNOV. Our inquiry is the same as the district court's: we must determine whether the evidence, considered as a whole and viewed in the light most favorable to the nonmoving party, reasonably can support only a verdict for the moving party. A directed verdict or JNOV is inappropriate where there is substantial evidence supporting a verdict in favor of the nonmoving party. See The Jeanery, Inc. v. James Jeans, Inc., 849 F.2d 1148, 1151 (9th Cir.1988). Substantial evidence is such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir.1987). We review for an abuse of discretion the district court's decision on a motion for a new trial. Oltz v. St. Peter's Community Hosp., 861 F.2d 1440, 1451-52 (9th Cir.1988).

III. MUNICIPAL LIABILITY

On appeal, the City does not challenge the jury's findings that Gillette's comments during the May 1983 emergency call were constitutionally protected and that Gillette was terminated because of those comments. Rather, the City argues that it did not cause a deprivation of Gillette's constitutional rights because Gillette was not fired pursuant to an official policy or custom of the City.

A. Monell and its progeny.

42 U.S.C. § 1983 provides, in part, that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

In Monell, the Supreme Court held that municipalities are "persons" subject to damages liability under section 1983 where "action pursuant to official municipal policy of some nature cause[s] a constitutional tort." 436 U.S. at 691, 98 S.Ct. at 2036. The Court made clear that the municipality itself must cause the constitutional deprivation and that a city may not be held vicariously liable for the unconstitutional acts of its employees under the theory of respondeat superior. Id.; accord City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412 (1989) (requiring "a direct causal link between a municipal policy or custom and the alleged constitutional deprivation").

A section 1983 plaintiff may establish municipal liability in one of three ways. First, the plaintiff may prove that a city employee committed the alleged constitutional violation pursuant to a formal governmental policy or a "longstanding...