FILED
United States Court of Appeals
Tenth Circuit
PU BL ISH
November 6, 2007
Elisabeth A. Shumaker
UNITED STATES COURT O F APPEALS Clerk of Court
TENTH CIRCUIT
RO SSA LEE SIM M ONS,
Plaintiff-Appellant,
v.
No. 06-4187
U IN TA H H EA LTH CA RE SPECIAL
SERVICE DISTRICT,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Utah
(D.C. No. Civ. No. 2:02-cv-00214-DB)
Kenneth B. Grimes, Kenneth B. Grimes, P.C., Salt Lake City, Utah, for Plaintiff-
Appellant.
Steve K. Gordon, Durham, Jones & Pinegar, P.C., Salt Lake City, Utah, for
Defendant-Appellee.
Before H E N RY , SE YM OU R , and GORSUCH, Circuit Judges.
G O R SU CH, Circuit Judge.
The Administrative Control Board (“Board”) is the final and authoritative
policymaking voice of Uintah County, Utah’s Health Care Special Services
District (“District”). After the Board fired M s. Simmons as administrator of the
District’s nursing home, she responded with a law suit alleging that she failed to
receive the process due her under the District’s written termination policies. A
bench trial followed. The district court eventually found that the Board had
indeed failed to follow the D istrict’s termination procedures in dismissing M s.
Simmons, and it reasoned that this failure precluded the District’s liability. But,
while municipalities are rightly held liable for those actions taken by employees
in conformance with official policy, this is hardly the only basis available for
assigning municipal liability. M unicipalities are equally answerable for actions
undertaken by their final policymakers, w hether or not those actions conform to
their ow n preexisting rules. W ere the law otherw ise, a municipality’s leaders
would have the very strange incentive to flout their own policies. Or perhaps
even enact policies with the deliberate purpose of disregarding them. W hile the
law is often subtle and sometimes complex, it is rarely so unreasonable. W e
reverse.
I
The undisputed facts are these. 1 For years, Uintah County owned and
operated a nursing home in Vernal, Utah. Beginning in 2000, and with the aim of
controlling the home’s operating costs, the County formed the District, a political
subdivision, to assume control of the home. In turn, the District constituted the
1
Some of these facts are documented in M s. Simmons’s supplemental
appendix, and her unopposed motion to submit that appendix is hereby granted.
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Board to make final decisions regarding the home’s management. As part of its
start up efforts, the B oard voted to adopt and apply a number of the County’s
existing policies to the District’s operations. These policies included a Reduction
in Force (“RIF”) plan that established processes for what is euphemistically
known as “downsizing,” whether due to lack of funds, insufficient workload, or
organizational restructuring. The policy provided, among other things, that a RIF
must be the “last option for cost savings”; consideration must be given to whether
the RIF can be accomplished by normal attrition, transfer, or reassignment rather
than by dismissal; any dismissal must take account of the seniority of existing
employees; and affected employees must be given two weeks’ advance written
notice of any separation and an opportunity for administrative review.
M s. Simmons w as the nursing home’s longtime administrator, first hired in
1985 as a County employee. W hen the D istrict came into being in 2000, M s.
Simmons, along with other employees, was transferred to the District’s payroll.
In early 2001, the Board decided to privatize the nursing home’s operations,
turning over its management to a private company called Traditions Health Care,
Inc. The Board then discussed what to do with M s. Simmons. Some Board
members expressed dissatisfaction with her work performance. M any argued that
her job could be more cheaply and efficiently handled by a Traditions employee.
During an executive session of the Board at which M s. Simmons w as not present,
Board members voted to let M s. Simmons go, but wrestled with whether to fire
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her for cause or to invoke the District’s RIF policy. Ultimately, they opted to
pursue the latter course. It is undisputed, however, that the Board then made no
effort whatsoever to comply with the District’s RIF policies.
M s. Simmons filed grievances with the District and the County, though not
in strict accordance with the District’s adopted grievance policies. M s. Simmons
never received any official response to her grievances, though she was told the
County would “get back to her.” Eventually, she filed this suit against the
District for wrongful termination of employment without due process of law
under 42 U.S.C. § 1983.
After a three-day bench trial, the district court held that M s. Simmons
failed to establish municipal liability. M ore specifically, the court held that the
District is liable only for those actions of its employees taken in compliance with
official District policy. Because the Board defied the District’s RIF policy (that
the Board itself adopted), the court reasoned, the District could not be held liable.
Alternatively, the district court held that M s. Simmons’s claim failed because she
neglected to exhaust available administrative remedies before suing, and because
the District would have terminated M s. Simmons even if the Board had followed
its RIF policy. M s. Simmons now appeals. 2
II
2
M s. Simmons does not appeal the district court’s dismissal of Uintah
County as a defendant, or her separate Title VII claim.
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The district court’s primary holding turns on a question of law – namely,
whether the District may be held liable only for actions by its employees in
compliance w ith official policy – and thus requires de novo review in this court.
W e are in full accord with the District that actions taken by employees in
compliance with official policy or custom are one way to establish liability on the
part of a municipality. Section 1983 was passed to curb violations of
constitutional rights by local authorities under color of law , and acts pursuant to
policy or custom undoubtedly qualify. W e also fully agree that municipalities
cannot be held liable for unauthorized actions by their employees. Under Section
1983, municipalities cannot be held liable for the actions of others under the
comm on law principle of respondeat superior; they are responsible only for their
own actions. M onell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S.
658, 691-95; Pembaur v. City of Cincinnati, 475 U.S. 469, 478-80 (1986). W hen
employees take actions specifically authorized by policy or custom, their actions
can be fairly said to be the municipality’s. But when they act inconsistently with
official policy or custom, though perhaps even still within the scope of
employment, that will not suffice. As the Supreme Court in Pembaur explained,
when passing Section 1983, “Congress never questioned its power to impose civil
liability on municipalities for their own illegal acts, [but] Congress did doubt its
constitutional power to impose such liability in order to oblige municipalities to
control the conduct of others.” 475 U.S. at 479.
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W e part ways w ith the District and the district court, however, when it
comes to the question whether showing compliance with a preexisting policy or
longstanding custom is the only way to demonstrate that an action is properly
viewed as the municipality’s own. W hile M onell found liability on the basis of an
“official policy as the moving force of the constitutional violation,” 436 U.S. at
694, it fell to the Court in Pembaur to establish that actions taken by a
municipality’s final policymakers also represent acts of “official policy” giving
rise to municipal liability. Pembaur, 475 U.S. at 481. And this makes sense. An
act by a municipality’s final policymaking authority is no less an act of the
institution than the act of a subordinate employee conforming to a preexisting
policy or custom. As the Court in Pembaur explained, “[n]o one has ever
doubted, for instance, that a municipality may be liable under § 1983 for a single
decision by its properly constituted legislative body – whether or not that body
had taken similar action in the past or intended to do so in the future – because
even a single decision by such a body unquestionably constitutes an act of official
government policy.” Id. at 480. Putting the point even more plainly, the C ourt
added that “where action is directed by those who establish governmental policy,
the municipality is equally responsible w hether that action is to be taken only
once or to be taken repeatedly.” Id. at 481. 3 Accordingly, a municipality is
3
See also Dill v. City of Edmond, 155 F.3d 1193, 1211 (10th Cir. 1998);
Camfield v. City of Oklahoma City, 248 F.3d 1214, 1229 (10th Cir. 1995); Randle
(continued...)
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responsible for both actions taken by subordinate employees in conformance with
preexisting official policies or customs and actions taken by final policymakers,
whose conduct can be no less described as the “official policy” of a municipality.
This must include even actions by final policymakers taken in defiance of a
policy or custom that they themselves adopted. 4 W ere the rule of law different,
we would invite irrational results. Holding municipalities immune from liability
whenever their final policymakers disregard their own written policies w ould
serve to encourage city leaders to flout such rules. Policymakers, like the
m em bers of the B oard before us, would have little reason to abide by their ow n
mandates, like the RIF policy, and indeed an incentive to adopt and then proceed
deliberately to ignore them. Such a rule of law would thus serve to undermine
rather than enhance Section 1983’s purposes. See generally City of St. Louis v.
Praprotnik, 485 U.S. 112, 126 (1988) (plurality op.) (rejecting claim that a
municipality may avoid liability by delegating discretionary authority from
policymakers to lower level employees; explaining that to hold otherwise would
prevent Section 1983 from “serv[ing] its intended purpose”); Jett v. Dallas Ind.
3
(...continued)
v. City of Aurora, 69 F.3d 441, 447 (10th Cir. 1995).
4
W e have previously held that the fact an official is meaningfully bound
by policies developed by others often signals that he or she is not a final
policymaker. See Randle, 69 F.3d at 448-49. That test, however, does not bear
on our current situation – viz., where the Board in question has demonstrated that
it is not meaningfully bound by its own policies.
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Sch. Dist., 491 U.S. 701 (1989) (remanding for a determination of w hether a
school superintendent was a final policymaker for whose actions the school
district could be held liable, even though the district had a written policy
prohibiting the actions alleged). 5
W ith this understanding of the law in hand, we return to the facts of this
case. It is undisputed before us that the Board was the final policymaker on
personnel matters for the D istrict. It is also undisputed that M s. Simmons’s
employment was terminated pursuant to the Board’s own actions. The decision to
fire M s. Simmons is thus no less chargeable as an official act of the District than
one taken pursuant to the District’s written RIF policy. Accordingly, we cannot
agree with the district court’s judgment that the District is immune from potential
Section 1983 liability on M onell grounds.
III
The District urges two alternative bases for holding it not liable. First, the
district court held that M s. Simmons could have obtained sufficient due process
had she strictly complied w ith the District’s post-separation grievance procedures,
and the District urges us to consider this a sufficient, independent basis for
affirming the district court’s judgment. But this we cannot do. The exhaustion of
5
Of course, the fact that a final policymaking body may act for the
municipality and thus impose municipal liability when flouting its own rules does
not mean that subordinates may do so. As we have already indicated, under
M onell subordinate employees impose liability by following policy, not when
they disregard it.
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administrative remedies is not required of plaintiffs asserting employment
termination claims under Section 1983. See Patsy v. Bd. of Regents of State of
Fla., 457 U.S. 496, 516 (1982); see also Hopkins v. Okla. Pub. Employees
Retirement Sys., 150 F.3d 1155, 1160 (10th Cir. 1998).
Second, the district court found, as a factual matter, that M s. Simmons
would have been fired even if the Board had followed the RIF policy. This, the
District urges, constitutes a sufficient and separate basis for affirming the
judgment in its favor. Again, we cannot agree. The fact that M s. Simmons w ould
have been fired even if the Board followed its RIF policies bears, at most, on the
extent of her damages, not on the District’s liability for failing to afford the
process due her in the course of her termination. Even when one does not prove
any compensable damages from a due process violation, under Section 1983 a
cause of action and nominal damages remain available. See Carey v. Piphus, 435
U.S. 247, 266-67 (1978) (directing that if, on remand, the court determined that
students’ suspensions were justified, the students could nevertheless recover
nominal damages). 6
6
The District’s cases are not to the contrary. The bulk of them hold
merely that in order to recover compensatory damages for procedural due process
violations, a causal connection must be established. See, e.g., Graham v.
Baughman, 772 F.2d 441, 447 (8th Cir. 1985); Pollock v. Baxter M anor Nursing
H om e, 716 F.2d 545, 547 (8th Cir. 1983); Laje v. R. E. Thom ason Gen. Hosp.,
665 F.2d 724, 728 (5th Cir. 1982). To be sure, in Garza v. Henderson, 779 F.2d
390 (7th Cir. 1985), the court held that the plaintiff bore the burden of
demonstrating that “actual damages” were caused by his due process violation and
(continued...)
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***
Actions taken by a municipality’s final policymakers, even in contravention
of their own written policies, are fairly attributable to the municipality and can
give rise to liability. Neither can municipalities escape this result simply because
a plaintiff failed to exhaust administrative remedies or because the adverse action
would have occurred even if its written policies had been followed. Of course,
finding none of the arguments proffered by the District for judgment on its behalf
persuasive does not mean that M s. Simmons is herself entitled to judgment. She
must still show, among other things, that she had a protected property interest in
her continued employment, and that she was deprived of that interest without the
appropriate level of process, as well as the scope (if any) of her damages. No
doubt a number of defenses remain to be considered on these and other scores.
Because it is not our place to decide such matters in the first instance, we remand
for further proceedings not inconsistent w ith this opinion.
Reversed and remanded.
6
(...continued)
affirmed dismissal of his suit for failure to do so. Id. at 395. But the cases cited
by Garza for support demonstrate only that actual, compensatory damages may
not be awarded absent proof of causation. See id. at 396 (quoting Lossman v.
Pekarske, 707 F.2d 288, 291 (7th Cir. 1983)).
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