Milligan-Hitt v. Board of Trustees Sheridan County

• Decision Date: 22 April 2008
• Docket Number: No. 06-8087.,No. 06-8086.,06-8086.,06-8087.
• Citation: 523 F.3d 1219
• Parties: Kathleen MILLIGAN-HITT and Kathryn R. Roberts, Plaintiffs-Appellees/Cross-Appellants, v. BOARD OF TRUSTEES OF SHERIDAN COUNTY SCHOOL DISTRICT NUMBER 2, Craig Dougherty, in his individual and official capacities as Superintendent, and Terry Burgess, in his official capacity as Assistant Superintendent, Defendants-Appellants/Cross-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

523 F.3d 1219

Kathleen MILLIGAN-HITT and Kathryn R. Roberts, Plaintiffs-Appellees/Cross-Appellants, v. BOARD OF TRUSTEES OF SHERIDAN COUNTY SCHOOL DISTRICT NUMBER 2, Craig Dougherty, in his individual and official capacities as Superintendent, and Terry Burgess, in his official capacity as Assistant Superintendent, Defendants-Appellants/Cross-Appellees.

No. 06-8086.

No. 06-8087.

United States Court of Appeals, Tenth Circuit.

April 22, 2008.

Michael K. Davis (Kendal R. Hoopes with him on the briefs), Yonkee & Toner, LLP., Sheridan, WY, for Defendants-Appellants Board of Trustees and Official-Capacity Defendants.

Jeremiah A. Collins, Bredhoff & Kaiser, P.L.L.C., Washington, D.C. (Joshua B. Schiffrin, Bredhoff & Kaiser, P.L.L.C., Washington, D.C., Gregory P. Hacker, Patrick E. Hacker, and Erin Maureen Kendall, Cheyenne, WY, with him on the briefs), for Plaintiffs-Appellees/Cross-Appellants.

Kate M. Fox, Davis & Cannon, Cheyenne, WY, for Defendant-Cross-Appellee Craig Dougherty in his Individual Capacity.

Before TACHA, HARTZ and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

A Wyoming jury found that a school superintendent in Sheridan County had unconstitutionally discriminated against two administrators. The judge allowed the jury to award damages for the superintendent's conduct against the school district but not against the superintendent himself. Both the plaintiffs and the school district have appealed, requiring us to decide the scope of municipal liability and qualified immunity under 42 U.S.C. § 1983. We conclude that the superintendent was not the final policymaker for the district, and therefore that the district is not liable to pay for his wrongdoing. We also conclude that in early 2003, the discrimination at issue here—on the basis of sexual orientation—was not clearly established to be unconstitutional, and therefore that qualified immunity protects the superintendent from personal liability as well. Thus, the plaintiffs are not entitled to damages against any of the defendants in this lawsuit.

I. BACKGROUND

Kathleen Milligan-Hitt and Kathryn Roberts lived and worked together in Sheridan, Wyoming. Ms. Milligan-Hitt worked as an assistant principal at an 8th- and 9th-grade junior high school; Ms. Roberts was the principal of the 6th- and 7th-grade middle school there. Both were employed under a series of one-year contracts. Before moving to Sheridan, they had lived in Rock Springs, where their personal relationship began.

In May, 2002, Ms. Milligan-Hitt and Ms. Roberts accompanied a school field trip to Montana. Afterward, Superintendent Craig Dougherty received a complaint from parents who told him that their daughter had seen the couple holding hands and walking into a Victoria's Secret store. Ms. Milligan-Hitt and Ms. Roberts later testified that this account was false, and Mr. Dougherty also acknowledged that it did not "sound like a likely story." App. 622. Nonetheless, that fall he discussed the complaint with each of them because, he said, he "wanted to let them know that this [complaint] had occurred." Id.

The content of these discussions was disputed at trial. According to Ms. Roberts, Mr. Dougherty called her into her own office (where he was sitting in her chair) and told her about the complaint. After she denied the incident, Mr. Dougherty responded "that he had called Rock Springs and he knew all about the two of [them]." App. 732. She testified that he was angry, and that his face was red and his voice slightly raised. Ms. Milligan-Hitt testified to a similar conversation: Mr. Dougherty also told her, "I called Rock Springs and I know all about you two." App. 303. He was angry and red-faced during this version of the conversation as well, and she felt that her "job could be in jeopardy." App. 309. In contrast, Mr. Dougherty testified that he was not upset during these conversations, did not mention Rock Springs, and told Ms. Roberts that her sexual orientation "would never be an issue" so long as he was superintendent. App. 624.

Matters rested there until 2003, when the construction of a new school building and a reorganization of grades meant that several administrative positions would be moved or eliminated. Instead of one school for grades six and seven and one for grades eight and nine, there was to be a single sixth-, seventh-, and eighth-grade middle school. Ninth grade was moved to the high school. Administrators at the eliminated schools, including Ms. Milligan-Hitt and Ms. Roberts, as well as some administrators at the high school, were required to submit applications and compete for positions at the new school.

Over the first half of 2003, Ms. Milligan-Hitt and Ms. Roberts both applied for jobs as assistant principals at the high school, and as principal and assistant principal at the new middle school. Ms. Milligan-Hitt also applied for a job as elementary school principal. These applications did not go well. For the position as principal at the new middle school, Ms. Roberts testified that she "interviewed poorly for the position." App. 949. Ms. Milligan-Hitt testified that her interview was "[l]ess than adequate." App. 433. After the interview, no member of the hiring committee voted for Ms. Roberts. Oddly, in light of their status as the sole individually named defendants, Mr. Dougherty and his assistant Terry Burgess were Ms. Milligan-Hitt's only supporters on the committee; each listed her as his second choice. The committee recommended Scott Stults, who had been principal of the district's Highland Park Elementary School, lauded for its extremely high standardized test scores. The school district's board of trustees hired him on the committee's recommendation. To select Mr. Stults's assistant principal, the committee told Mr. Stults to interview the three applicants—Ms. Milligan-Hitt, Ms. Roberts, and Ms. Roberts's assistant, Mr. Kadera. After the interviews, Mr. Stults selected Mr. Kadera. Plaintiffs' applications for two positions as assistant principal at the high school were also unsuccessful. Ms. Milligan-Hitt acknowledged that she was less qualified than the assistant principals who were selected, and Ms. Roberts had "no significant complaints" about the process. App. 969.

Finally, Ms. Milligan-Hitt unsuccessfully applied to be principal of Highland Park Elementary School—Mr. Stults's previous job. Out of 16 or 17 applications, Mr. Burgess gave 10 to 12 of those, including Ms. Milligan-Hitt's, to the hiring committee. Mr. Dougherty testified that her application "was the exact same" as the one she had submitted unsuccessfully for the middle school, and that she had not given "an indication about why she wanted to be at" the elementary school. App. 551-52. Mr. Burgess testified that he "stayed neutral" on whether to interview her, and the committee decided not to. App. 1084. The district hired Ms. Roberts to teach physical education for a year and the two later moved to Lander, Wyoming, and found work at schools there.

In October 2006, they filed this lawsuit under 42 U.S.C. § 1983 and the Fourteenth Amendment against the board of trustees of the school district, Mr. Dougherty in his individual and official capacities, and assistant superintendent Terry Burgess in his official capacity. The suit against Mr. Dougherty in his personal capacity was dismissed on summary judgment on the basis of qualified immunity. Although the district court found that there were genuine issues of material fact as to whether Mr. Dougherty's actions had been unconstitutional, it held that the law governing discrimination on the basis of sexual orientation had not been clearly established in 2002 and early 2003, before the Supreme Court's decision in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), which arguably clarified the issue.

The other claims were all construed as a suit for municipal liability against the school district, to which qualified immunity does not apply. It proceeded to trial. The district court instructed the jury that it could decide, as a factual matter, that the district had delegated its policymaking authority to Mr. Dougherty, in which case his conduct could subject the municipality to liability. After receiving this instruction, the jury found that the school district had violated the equal protection clause and awarded total damages of $160,515. The jury found no liability on the plaintiffs' other claims, such as for violation of their rights to intimate association.

The school district appealed the verdict to this Court. Ms. Milligan-Hitt and Ms. Roberts cross-appealed the grant of summary judgment for Mr. Dougherty.

II. MUNICIPAL LIABILITY AND POLICYMAKING AUTHORITY

While § 1983 allows suits against individual state officials who have violated their constitutional rights, plaintiffs frequently wish to seek damages further up the chain of command. Officials sued personally are shielded by qualified immunity, meaning that they are liable for damages only where they had fair warning of the illegality of their conduct. Even when held liable they do not always have the money or the insurance to pay large judgments against them. The municipalities that employ them have more money and no immunity, so they are tempting targets for lawsuits when municipal officials have erred. Section 1983, however, rejects the tort principle of respondeat superior and does not subject municipalities to vicarious liability for the acts of their employees; municipal taxpayers are liable only for the municipality's own misdeeds. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

Federal law forces municipal taxpayers to pay damages for official actions through municipal liability only if those "edicts or acts may fairly be said to represent official policy" of the district. Id. at 694, 98 S.Ct. 2018. Because the Sheridan County School District had no official policy of sexual-orientation...