Scala v. City of Winter Park

United States Court of Appeals,

Eleventh Circuit.

No. 96-3121.

William D. SCALA, Plaintiff-Appellant,

v.

CITY OF WINTER PARK, a municipality, Defendant-Appellee.

July 10, 1997.

Appeal from the United States District Court for the Middle District of Florida. (No. 95-329-CIV-
ORL-18), Kendall Sharp, Judge.

Before CARNES, Circuit Judge, and HENDERSON and GIBSON*, Senior Circuit Judges.

CARNES, Circuit Judge:

It is well-established that a municipality may be held liable under 42 U.S.C. § 1983 for a

single illegal act committed by one of its officers, but not on a theory of respondeat superior.

Instead, § 1983 liability may be premised upon a single illegal act by a municipal officer only when

the challenged act may fairly be said to represent official policy, such as when that municipal officer

possesses final policymaking authority over the relevant subject matter. The dispositive issue in this

appeal is whether the City of Winter Park's City Manager and his subordinate, the Public Safety

Director, are final policymakers with respect to employment termination decisions at the City's fire

department. We hold that they are not, because their decisions are subject to meaningful
administrative review by the City Civil Service Board.
I. BACKGROUND FACTS AND PROCEDURAL HISTORY

William Scala worked for the City of Winter Park Fire Department as a paramedic and

firefighter from 1979 until he was fired in 1992. By 1985, he had been promoted to the rank of

lieutenant. In 1989, Scala outwardly and strongly supported mayoral hopeful Russell Troutman in

his run against the eventual winner of that office, David Johnson. According to Scala, his support

*
Honorable Floyd R. Gibson, Senior U.S. Circuit Judge for the Eighth Circuit, sitting by
designation.
of Troutman led to a campaign within the fire department to have him discharged.1

In September 1991, Battalion Chief James Knackert charged Scala with insubordination at

a fire scene. Later, Knackert attempted to withdraw that charge, because he felt he had been

pressured by other battalion chiefs to make the charge in the first place. However, City Manager

Anthony Barrett refused to allow Knackert to withdraw the charge. As a result of the

insubordination charge, Scala was suspended for three days and demoted from lieutenant to

firefighter. As he was entitled to do under the City Charter and applicable Civil Service Code, Scala

appealed his suspension and demotion to the City Civil Service Board. On January 29, 1992, the

Board reversed the demotion, but added fifteen days to the suspension.

On March 11, 1992, City Manager Barrett appointed James Younger to the position of Public

Safety Director. In that position, Younger served simultaneously as the chief of the City's fire and

police departments. At the time of Younger's appointment, Scala had a good relationship with him.

However, that relationship deteriorated quickly after Younger began to pursue a romance with, and

possibly harass, a married female fire inspector named Lyn Wright. Scala told Younger that it was

unwise to pursue a relationship with Wright and that Scala would have to tell the truth about the

situation if trouble ever arose over it.

On April 20, 1992, new Battalion Chief Bobby Ferrell leveled ten disciplinary charges

against Scala. A committee was assembled to investigate those charges, the most serious of which

was that Scala had lied in his prior disciplinary proceeding. Younger took personal responsibility

for investigating the untruthfulness charge, and the remaining charges were investigated by the

committee. The committee recommended that Scala be found guilty of five of the nine charges it

was assigned to investigate, and it recommended that Scala be terminated. Although he had never

interviewed Scala about the matter, Younger concluded that Scala was also guilty of the

untruthfulness charge. Thereafter, Younger notified Scala that he was proposing that Scala be

1
This appeal concerns only a question of law. The facts are largely, but not entirely,
undisputed. Because the parties' factual disputes are not relevant to the dispositive legal issue in
this case, we need not discuss those disputes in this opinion. Suffice it to say that for present
purposes, we have resolved all of the factual disputes in favor of Scala.
terminated on the basis of the six charges.

About three weeks later, on June 22, 1992, Fire Inspector Wright complained to Younger

about his alleged sexual harassment of her and demanded that it stop. A meeting was then set up

for discussion of Wright's complaint in City Manager Barrett's office. That meeting was scheduled

for July 3, 1992. Because Younger feared Scala's previously-stated support for Wright, Younger

wanted Scala out of the department.

On June 25, 1992, Scala met with Younger and attempted to respond to the six charges that

the committee and Younger had found to have merit. Afterward, Younger informed City Manager

Barrett that Scala had failed to refute any of the charges. Younger and Barrett then mutually agreed

that Scala should be terminated. On June 29, 1992, Younger gave Scala written notice of his

termination. As with his prior suspension and demotion, Scala appealed his termination to the City

Civil Service Board. The Board held a public hearing on the issue and unanimously upheld Scala's

termination.

After the Board upheld Scala's termination, Scala filed a 42 U.S.C. § 1983 claim against the

City. In his complaint, Scala alleged that his termination was in violation of his First Amendment

rights to free speech and free association. The free speech claim was based on the theory that his

termination was motivated to suppress speech about Younger's alleged sexual harassment of Wright.

The free association claim was based on the theory that the termination was motivated by Scala's

support of Troutman in the 1989 mayoral race. Yet, Scala did not sue Younger, Barrett, or any other

municipal official. He sued only the City.

The district court granted summary judgment to the City on the ground that neither Younger

nor Barrett were final policymakers with respect to employment termination decisions at the fire

department, because the decision to terminate Scala was subject to plenary review by the City Civil

Service Board. This appeal followed.
II. STANDARD OF REVIEW

This Court applies a de novo standard of review to a district court's grant of summary

judgment. See, e.g., Jones v. Firestone Tire & Rubber Co., 977 F.2d 527, 535 (11th Cir.1992).
Summary judgment is appropriate if the record shows no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law. See, e.g., Eberhardt v. Waters, 901 F.2d

1578, 1580 (11th Cir.1990). "All evidence and reasonable factual inferences drawn therefrom are

reviewed in the light most favorable to the party opposing the [summary judgment] motion."

Warren v. Crawford, 927 F.2d 559, 561-62 (11th Cir.1991) (citation omitted).

This appeal requires us to decide whether City Manager Barrett or Public Safety Director

Younger are final policymakers with respect to terminations from the fire department, such that the

City may be held liable under 42 U.S.C. § 1983 if their decisions are unconstitutional. As the

Supreme Court has made plain, that issue presents a question of law:

As with other questions of state law relevant to the application of federal law, the
identification of those officials whose decisions represent the official policy of the local
governmental unit is itself a legal question to be resolved by the trial judge before the case
is submitted to the jury. Reviewing the relevant legal materials, including state and local
positive law, as well as custom or usage having the force of law, the trial judge must identify
those officials or governmental bodies who speak with final policymaking authority for the
local governmental actor concerning the action alleged to have caused the particular
constitutional or statutory violation at issue.

Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 2724, 105 L.Ed.2d 598 (1989)

(emphasis added) (original emphasis omitted) (citation and internal quotation marks omitted). As

with all conclusions of law related to the grant of summary judgment, we review de novo the district

court's determination that neither Barrett nor Younger are final policymakers with respect to

terminations from the fire department. See, e.g., Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d

989, 996 (11th Cir.1990).
III. ANALYSIS

A. MONELL 'S "POLICY OR CUSTOM" REQUIREMENT

In Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611

(1978), the Supreme Court held that municipalities may not be held liable under 42 U.S.C. § 1983

on a theory of respondeat superior. Instead, municipalities may only be held liable for the execution

of a governmental policy or custom. As the Monell Court explained:

[I]t is when execution of a government's policy or custom, whether made by its lawmakers
or by those whose edicts or acts may fairly be said to represent official policy, inflicts the
injury that the government as an entity is responsible under § 1983.
Id. at 694, 98 S.Ct. at 2037-38 (emphasis added).

Later, in Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452

(1986), the Supreme Court clarified Monell's "policy or custom" requirement. In Pembaur, the

Court explained that "municipal liability may be imposed for a single decision by municipal

policymakers under appropriate circumstances." Id. at 480, 106 S.Ct. at 1298 (majority opinion)

(emphasis added). In particular, "where action is directed by those who establish governmental

policy, the municipality is equally responsible whether that action is to be taken only once or to be

taken repeatedly." Id. at 481, 106 S.Ct. at 1299 (majority opinion) (emphasis added). Thus, liability

may arise from "a course of action tailored to a particular situation and not intended to control

decisions in later situations," id. at 481, 106 S.Ct. at 1299 (majority opinion), provided that "the

decisionmaker possesses final authority to establish municipal policy with respect to the action

ordered," id. at 481, 106 S.Ct. at 1299 (plurality opinion) (emphasis added) (footnote omitted).2

In light of Pembaur, this Court has interpreted Monell's policy or custom requirement to

preclude § 1983 municipal liability for a subordinate official's decisions when the final policymaker

delegates decisionmaking discretion to the subordinate, but retains the power to review the exercise

of that discretion:

[T]he mere delegation of authority to a subordinate to exercise discretion is not sufficient to
give the subordinate policymaking authority. Rather, the delegation must be such that the
subordinate's discretionary decisions are not constrained by official policies and are not
subject to review.
Mandel v. Doe, 888 F.2d 783, 792 (11th Cir.1989) (emphasis added) (citations omitted). That

interpretation is based on the Supreme Court's decision in City of St. Louis v. Praprotnik, 485 U.S.

112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion). Although Praprotnik was a plurality

2
Recently, the Supreme Court appeared to cast some doubt on its Pembaur decision by
declining to address "[w]hether that decision was intended to govern only the situation at hand or
to serve as a rule to be applied over time." Board of County Comm'rs v. Brown, --- U.S. ----, ----,
117 S.Ct. 1382, 1388, 137 L.Ed.2d 626 (1997). Nevertheless, the Court stopped far short of
overruling Pembaur in Brown. Unless and until the Supreme Court overrules Pembaur, or
Congress adjusts § 1983 municipal liability standards, the Pembaur decision remains binding on
this Court. See Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109
S.Ct. 1917, 1921-22, 104 L.Ed.2d 526 (1989) (admonishing the courts of appeals to leave to the
Supreme Court "the prerogative of overruling its own decisions").
opinion, the decision merits discussion in further detail, because our circuit's law in the area has been

molded around that decision's reasoning and because the facts of Praprotnik are closely analogous

to those of this case.

In Praprotnik, a municipal employee of that name was transferred and subsequently was laid

off from his job with the City of St. Louis, Missouri. Id. at 114-16, 108 S.Ct. at 920. The municipal

officials who were responsible for initiating the transfer and layoff, respectively, were: (1) Frank

Hamsher, the Director of the St. Louis Community Development Agency; and (2) Robert Killen,

the "Director of Heritage." Id. at 115-16, 108 S.Ct. at 920. Praprotnik sued the City of St. Louis,

alleging that he had been penalized for exercising his First Amendment rights, i.e., that the transfer

and layoff were in retaliation for his earlier exercise of his right to appeal a disciplinary suspension

to the St. Louis Civil Service Commission. Id. Before filing suit, Praprotnik appealed the layoff

decision to the Commission, but those proceedings were suspended when Praprotnik filed his federal

lawsuit. Id.

The district court entered judgment on a jury verdict for Praprotnik, and the Eighth Circuit

affirmed in part. Id. at 117, 108 S.Ct. at 920. In doing so, the Eighth Circuit reasoned that Hamsher

and Killen were municipal policymakers who could subject the city to § 1983 liability for their

employment decisions—even though those decisions were reviewable by the Civil Service

Commission. Id. at 117-18, 108 S.Ct. at 921. The Supreme Court reversed, and its explanation for

that decision is so directly on point that we think it worthwhile to reproduce a considerable part of

it:

The Court of Appeals concluded that "appointing authorities," like Hamsher and
Killen, who had the authority to initiate transfers and layoffs, were municipal
"policymakers." The court based this conclusion on its findings (1) that the decisions of
these employees were not individually reviewed for "substantive propriety" by higher
supervisory officials; and (2) that the Civil Service Commission decided appeals from such
decisions, if at all, in a circumscribed manner that gave substantial deference to the original
decisionmaker. 798 F.2d at 1174-1175. We find these propositions insufficient to support
the conclusion that Hamsher and Killen were authorized to establish employment policy for
the city with respect to transfers and layoffs.

Id. at 129, 108 S.Ct. at 927. After quoting the St. Louis City Charter to establish that the Civil

Service Commission had the final authority over transfers and layoffs, the Supreme Court continued:
 This case therefore resembles the hypothetical example in Pembaur: "[I]f [city]
employment policy was set by the [Mayor and Aldermen and by the Civil Service
Commission], only [those] bod[ies'] decisions would provide a basis for [city] liability. This
would be true even if the [Mayor and Aldermen and the Commission] left the [appointing
authorities] discretion to hire and fire employees and [they] exercised that discretion in an
unconstitutional manner...." 475 U.S. at 483, n. 12, 106 S.Ct. at 1300, n. 12. A majority of
the Court of Appeals panel determined that the Civil Service Commission's review of
individual employment actions gave too much deference to the decisions of appointing
authorities like Hamsher and Killen. Simply going along with discretionary decisions made
by one's subordinates, however, is not a delegation to them of the authority to make policy.
It is equally consistent with a presumption that the subordinates are faithfully attempting to
comply with the policies that are supposed to guide them. It would be a different matter if
a particular decision by a subordinate was cast in the form of a policy statement and
expressly approved by the supervising policymaker. It would also be a different matter if
a series of decisions by a subordinate official manifested a "custom or usage" of which the
supervisor must have been aware. See supra, at 124-25, 108 S.Ct. at 925. In both those
cases, the supervisor could realistically be deemed to have adopted a policy that happened
to have been formulated or initiated by a lower-ranking official. But the mere failure to
investigate the basis of a subordinate's discretionary decisions does not amount to a
delegation of policymaking authority, especially where (as here) the wrongfulness of the
subordinate's decision arises from a retaliatory motive or other unstated rationale. In such
circumstances, the purposes of § 1983 would not be served by treating a subordinate
employee's decision as if it were a reflection of municipal policy.

Praprotnik, 485 U.S. at 129-30, 108 S.Ct. at 927-28 (alterations in original).

This Court's post-Praprotnik decisions have consistently recognized and given effect to the

principle that a municipal official does not have final policymaking authority over a particular

subject matter when that official's decisions are subject to meaningful administrative review. See

Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 638 (11th Cir.1991) (holding that a mayor was

not a final policymaker with respect to zoning decisions where the city charter provided that the city

counsel could override the mayor's veto of zoning ordinances); Mandel, 888 F.2d at 792-94

(recognizing that a municipal officer has final policymaking authority when his decisions "are not

subject to review" and holding that discretionary review initiated by the municipal official himself

does not prevent the official from being a final policymaker); cf. Hill v. Clifton, 74 F.3d 1150, 1152

(11th Cir.1996) (accepting concession that city police chief was not final policymaker with respect

to employment decisions where police chief's decisions could be reversed by the city manager);

Martinez v. City of Opa-Locka, 971 F.2d 708, 713-15 (11th Cir.1992) (finding final policymaking

authority where "the City Manager's decision to hire or fire administrative personnel is completely

insulated from review").
 Our Manor Healthcare decision is particularly illuminating. In Manor Healthcare, a nursing

home corporation filed a § 1983 suit against the City of Sunrise, Florida. 929 F.2d at 635. As the

basis for its claim against the city, the plaintiff corporation contended that the mayor of Sunrise had

extorted $30,000 from it in exchange for the mayor's cooperation in securing a special zoning

exception for the nursing home. Id. at 636-37. We held that wrongful acts committed by the mayor

in his administration of the city's zoning department could not subject the city to § 1983 liability,

even though the city charter gave the mayor "the power to oversee and administer all departments

and agencies of the city, including the planning and fire departments." Id. at 637. That was not

enough for municipal liability, because the charter also gave the city council the power to override

the mayor's veto on zoning matters, and as a result "[the mayor] was not the ultimate policymaking

authority regarding zoning issues in the City of Sunrise." Id. (citing Praprotnik ).

As Manor Healthcare and our other post-Praprotnik cases make plain, the principles

espoused by a plurality of the Supreme Court in Praprotnik have become embedded in the binding

precedents of this circuit. Final policymaking authority over a particular subject area does not vest

in an official whose decisions in the area are subject to meaningful administrative review.

Scala protests that the effect of this rule of law is to unfairly insulate municipalities from

liability for the wrongful conduct of subordinate officials. That argument is problematic for at least

two reasons. First, if Praprotnik's final policymaker requirement, as embedded in our circuit law,

creates an undesireable barrier to municipal liability, that is not a problem this panel can solve. We

must take our circuit's law as we find it unless and until the Supreme Court, Congress, or this Court

sitting en banc changes it. Second, we note that the rule of Praprotnik does not leave plaintiffs such

as Scala without a remedy. One remedy is provided them by the very means of administrative

review that serves to insulate municipalities from respondeat superior liability for the conduct of

rogue subordinates. Another such remedy is an individual-capacity civil action brought against the

subordinate officials themselves. In this case, for strategic or other reasons, Scala chose not to

pursue any legal remedy he had against Younger or Barrett. That Scala made the strategic choices

he did is no reason for us to abandon our post-Praprotnik precedents.
 B. APPLICATION OF THE MONELL STANDARD TO THIS CASE

In this case, there is no question that the Civil Service Board had the authority to review the

decision of Barrett and Younger to terminate Scala. In fact, Scala concedes that "[t]he Board had

the power to review the City Manager's decision." That concession is hardly surprising, given that:

(1) the governing city regulations provide for such review; (2) the Board did actually review the

termination decision in this case; and (3) Scala had previously used the Board's review procedures

to his benefit, when he convinced the Board to reverse his earlier demotion.

Despite the power vested in the Board to review termination decisions within the fire

department, Scala contends that either Barrett or Younger, or both, should be considered final

policymakers. He argues that Barrett and Younger are final policymakers, because their decisions

are not automatically reviewed by the Board; an employee has to appeal to the Board before it will

take any action to review decisions made by the appointing authorities. However, that is essentially

the same argument that the Praprotnik plurality rejected, and that this Court rejected in Manor

Healthcare. See Praprotnik, 485 U.S. at 130, 108 S.Ct. at 928 (explaining that "the mere failure to

investigate the basis of a subordinate's discretionary decisions does not amount to a delegation of

policymaking authority"); Manor Healthcare, 929 F.2d at 638 ("Manor cannot now contend that

the city council would have deferred to [the mayor's] judgment on all zoning issues since Manor

failed to trigger the city council's authority.").3

In contending that the absence of automatic administrative review transforms Barrett or

Younger into final policymakers, Scala makes no effort to distinguish Praprotnik or Manor

Healthcare. Instead, he relies on a pre-Praprotnik, pre-Pembaur case from this circuit, Wilson v.

Taylor, 733 F.2d 1539 (11th Cir.1984). As Scala correctly points out, we held in Wilson that "even

where an appellate process exists to review an official's decision, that official may be held to

3
Even putting precedent aside, we are puzzled by the suggestion that administrative review of
personnel decisions should occur without any initiative by the supposedly aggrieved party. The
board can hardly be expected to conduct a plenary review of every personnel decision that
Barrett and Younger make. Why should it expend time and resources reviewing decisions that
no one is complaining about? Because Barrett and Younger are not likely to complain to the
Board about their own decisions, common sense seems to dictate that aggrieved employees, like
Scala, should initiate Board review if they wish to have it.
exercise final authority within the city." Id. at 1546. It is also true that in Wilson, we found it

significant that "an appeal did not automatically follow" a police chief's termination decision. Id.

The trouble with Scala's argument, however, is that Wilson is no longer good law, in light of

Pembaur, Praprotnik, and their progeny in this circuit.4

In light of Praprotnik and this circuit's precedents applying the principle it announced, it is

clear that Barrett and Younger do not become final policymakers for § 1983 purposes simply

because persons who disagree with their decisions have to file an appeal in order to have those

decisions reviewed. The City's governing documents provide employees with an opportunity for

meaningful administrative review of termination decisions at the fire department, and there is no

evidence that the Board merely rubber-stamps the decisions of the appointing authorities. In fact,

Scala's own prior experience with the Board demonstrates to the contrary, because Scala was able

to convince the Board to reverse the demotion he had received in an earlier disciplinary proceeding.

Because the City Civil Service Board has the power to reverse any termination decision

made by Barrett or Younger, neither of them is a final policymaker with respect to termination

decisions at the fire department. The Board reviewed Scala's termination. The result was an

affirmance, but there is no evidence (and Scala does not even allege) that the Board's decision

approved any improper motive that Barrett or Younger may have had. See Hill v. Clifton, 74 F.3d

1150, 1152 (11th Cir.1996) (affirming summary judgment for city in § 1983 employment case where

plaintiff presented no evidence that the city's reviewing authority approved any improper motive

underlying the plaintiff's demotion). Accordingly, the district court correctly granted summary

judgment in favor of the City.5

4
We note that another part of Wilson is at odds with the Supreme Court's subsequent decision
in Jett v. Dallas Independent School District, 491 U.S. 701, 737, 109 S.Ct. 2702, 2724, 105
L.Ed.2d 598 (1989), which established that the final policymaker issue is a question of law for
the trial judge. In Wilson, by contrast, we had held that the final policymaker issue was properly
decided by the jury as a question of fact. 733 F.2d at 1547. In light of subsequent Supreme
Court decisions, little, if anything, of Wilson's final policymaker analysis survives.
5
Although the district court properly concluded that neither Barrett nor Younger are final
policymakers with respect to termination decisions at the fire department, we disagree with the
district court's assertion that even if Younger or Barrett possessed final decision-making
authority with respect to Scala's termination, municipal liability could not attach "merely" for
 IV. CONCLUSION

Barrett and Younger may or may not have had proper motives when they initiated Scala's

termination from the City's fire department, but even if their decision was improperly motivated, the

City cannot be held liable for it under § 1983, because neither Barrett nor Younger are final

policymaking authorities with respect to terminations from the fire department. There being no

evidence that the Board ratified any improper basis for Scala's termination, the district court's

judgment in favor of the City is AFFIRMED.

that reason. To the contrary, if Younger or Barrett had final (i.e., nonreviewable)
decision-making authority with respect to termination decisions at the fire department, they
would be final policymakers in that subject area, and thus could subject the City to liability if the
decisions they made in that capacity were illegal ones. See, e.g., Pembaur, 475 U.S. at 483-84,
106 S.Ct. at 1299-1300. In this case, however, the availability of meaningful Board review
prevents termination decisions made by Younger or Barrett from being "final" for § 1983
purposes, and that precludes the City from being held liable for those decisions.