Submitted: September 20, 2016
from United States District Court for the Eastern District of
Missouri - St. Louis
WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
ARNOLD, CIRCUIT JUDGE.
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.
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 court 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
(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 (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 (1977). Bolderson appeals the
district court's decision to grant summary judgment to
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 (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.
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 (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.
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.
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.
also contends that the mayor's delegation of authority to
the city administrator to address Bolderson's criticisms
and the mayor's alleged tacit approval of the city
administrator's decision to terminate her establishes
municipal liability. We disagree again, because, as a
plurality of the Supreme Court stated in City of St.
Louis v. Praprotnik, 485 U.S. 112, 130 (1988),
"Simply going along with discretionary decisions made by
one's subordinates . . . is not a delegation to them of
the authority to make policy." See also Williams v.
Butler, 863 F.2d 1398, 1402 (8th Cir. 1988) (en banc).
Bolderson therefore has not shown that the mayor's
delegation of authority or tacit approval of the city
administrator's decision was the moving force behind her
termination. See Bd. of Cnty. Comm'rs of Bryan Cnty.,
Okla. v. Brown, 520 U.S. 397, 404 (1997). In fact,
Bolderson says that the city administrator was the sole
decisionmaker with regard to her termination. Without a
showing that the mayor played a more active role in
Bolderson's termination, she cannot demonstrate that the
city is liable; otherwise the city could be liable solely as
an employer of an alleged tortfeasor.
further maintains that the mayor and city administrator each
violated the city's anti-fraud policy in the way that
they handled her report. We cannot see how officials'
deviation from established policy itself constitutes official
municipal policy. If it did, the concept of official
municipal policy would be turned on its head.
reject Bolderson's contention that an unofficial
municipal custom led to a violation of her constitutional
rights. To trigger municipal liability based on unofficial
municipal custom, the custom must be so pervasive among
non-policymaking employees of the municipality that it
effectively has the force of law. Ware v. Jackson Cnty.,
Mo., 150 F.3d 873, 880 (8th Cir. 1998). The custom must
be demonstrated by a continuing, widespread, and persistent
pattern of unconstitutional misconduct. Id. An
unconstitutional custom or usage cannot arise from a single
act. McGautha v. Jackson Cnty., Mo., Collections
Dep't, 36 F.3d 53, 57 (8th Cir. 1994).
maintains, finally, that her harm stemmed from an unofficial
municipal "custom of discouraging reports of misconduct
or corruption by city officials." It is difficult to see
exactly how Bolderson can rely on such a custom to support
her claim, unless she is insinuating that the custom is proof
that she was retaliated against for exercising her First
Amendment rights. The inference she asks us to draw is weak
at best. The fact that an employer does not like complaints
is not much evidence that it fires people for making them.
Bolderson's evidence that there was such a policy,
moreover, is similarly weak. She says that the city did not
intend to investigate her complaint, but this single act
could not show a continuing, widespread, and persistent
pattern of unconstitutional misconduct. Bolderson
tangentially refers to other evidence of the custom that she
claims victimized her, but the materials cited reveal only
unsubstantiated suspicions. Bolderson is obligated to meet
proof with proof at the summary-judgment stage, Conseco
Life Ins. Co. v. Williams, 620 F.3d 902, 909 (8th Cir.
2010), and the material offered ...