FILED
United States Court of Appeals
Tenth Circuit
April 22, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
KATHLEEN MILLIGAN-HITT and
KATHRYN R. ROBERTS,
Plaintiffs-Appellees/
Cross-Appellants,
v. Nos. 06-8086 & 06-8087
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.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. NO. 05-CV-0017B)
Michael K. Davis (Kendal R. Hoopes with him on the briefs), Yonkee & Toner,
LLP., Sheridan, Wyoming, 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, Wyoming, with him on
the briefs), for Plaintiffs-Appellees/Cross-Appellants.
Kate M. Fox, Davis & Cannon, Cheyenne, Wyoming 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
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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
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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
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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.
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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 (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.
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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 (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. Because the Sheridan County
School District had no official policy of sexual-orientation discrimination, these
plaintiffs must show that their rights were violated by one of the district’s final
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policymakers. Simmons v. Uintah Health Care Special Serv. Dist., 506 F.3d
1281, 1284–85 (10th Cir. 2007). Although the board made the final decision not
to hire Ms. Milligan-Hitt and Ms. Roberts, the plaintiffs contend that final
policymaking authority over the hiring decisions was delegated to the
superintendent, who exercised it in an intentionally discriminatory manner. The
plaintiffs do not contend that the hiring committees themselves were
discriminatory, apart from any involvement from the superintendent. The district
court treated the superintendent’s policymaking authority as a question of fact and
presented it to the jury, which concluded that Mr. Dougherty was the final
policymaker of the district. 1 We must reverse this judgment because the question
of Mr. Dougherty’s final policymaking authority is a question of law, which
should not have gone to the jury. The district court should have concluded that as
a matter of law, Mr. Dougherty did not make district hiring policy. 2
1
The jury’s special verdict form does not make this clear, but we can infer
that this must have been the jury’s conclusion because the evidence was
insufficient for a rational trier of fact to find discrimination by the school board
itself, as we discuss below. The plaintiffs also relied exclusively on this theory
during their closing argument
2
Because we find in the district’s favor on this ground, we need not
consider a challenge it raises on appeal to a different jury instruction, which
allowed the jury to consider inconsistent testimony as evidence of discriminatory
intent.
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A. Adjudicating Policymaking Authority
The judge, not the jury, should determine who exercises final policymaking
authority in a municipality. This issue was settled by the Supreme Court’s
decision in Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 736–38 (1989). In Jett,
the Supreme Court held that allowing a jury to decide whether a school’s
principal and superintendent could have been delegated final policymaking
authority was “manifest error.” Id. at 736. The Court explained that it was
incorrect to give this issue to a jury because the identity of those final
policymakers whose conduct can create municipal liability is “‘a question of state
law.’” Id. at 737 (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 123
(1988) (plurality opinion)). It thus concluded that “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.” Id. at 737. Therefore, jury instructions regarding
policymaking authority are inappropriate because the judge, not the jury,
“identifi[es] those officials” whose wrongs can create municipal liability. Id.
In adopting this standard, Jett expressly rejected as unworkable the view
the plaintiffs now advance. During the previous term in City of St. Louis v.
Praprotnik, the Court failed to produce a majority opinion explaining how final
policymaking authority should be determined. Justice Brennan had argued in a
concurring opinion that determinations of municipal liability should be based on
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“the realities of municipal decisionmaking,” which would entail a “factual and
practical” inquiry into “a municipality’s actual power structure.” 485 U.S. at 145
(Brennan, J., concurring in the judgment). The plurality, however, rejected
Justice Brennan’s view, explaining that it would be “capricious . . . to hold a
municipality responsible for every decision that is perceived as ‘final’ through the
lens of a particular factfinder’s evaluation of the city’s ‘actual power structure.’”
Id. at 124 n.1. The plurality went on to say that “a federal court would not be
justified in assuming that municipal policymaking authority lies somewhere other
than where the applicable law purports to put it.” Id. at 126. In Jett, the Court
explained that it had taken the case “to clarify the application of our decisions in
St. Louis v. Praprotnik and Pembaur v. Cincinnati to the school district’s
potential liability for the discriminatory actions of [a principal].” 491 U.S. at
710–11 (internal citations omitted). A majority then adopted the plurality opinion
in Praprotnik and squarely rejected the alternative of letting factfinders decide
where final policymaking authority lies. Id. at 737–38.
This rule is true to the logic of Monell. Because municipalities are
responsible only for their own misdeeds, municipal taxpayers are liable only for
those official actions that “represent” the municipality in a legal sense. Monell,
436 U.S. at 694. By ensuring that liability follows legal authority, Jett provides
incentives for cities to give final authority only to responsible officials.
Moreover, if municipal liability depended on the unpredictable results of a case-
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by-case analysis of the “actual power structure” of each municipality sued, cities
might be forced to insure broadly against potential misconduct by every
significant official. The Jett rule is more predictable and depends on a factor
largely controlled by the city—law. See Praprotnik, 485 U.S. at 124 n.1
(“Municipalities cannot be expected to predict how courts or juries will assess
their ‘actual power structures,’ and this uncertainty could easily lead to results
that would be hard in practice to distinguish from the results of a regime governed
by the doctrine of respondeat superior.”). Thus Jett ensures that cities are held
liable only for their own choices about where to vest authority, as Monell
requires, not forced to provide “‘mutual insurance’” against unforeseeable
usurpations of power, as Monell forbids. Monell, 436 U.S. at 694 (quoting Cong.
Globe, 42d Cong., 1st Sess. 792 (1871) (statement of Rep. Butler)).
To be sure, as both Jett and Praprotnik acknowledged, this rule could in
some cases allow a municipality to use legal forms to hide the function of its true
policies. But the Supreme Court concluded that there is a different mechanism
for guarding against this risk: allowing plaintiffs to hold a municipality liable not
only for the actions of its legal policymakers but also for its unwritten customs
and policies. As Praprotnik put it: “whatever analysis is used to identify
municipal policymakers, egregious attempts by local government to insulate
themselves from liability for unconstitutional policies are precluded by a separate
doctrine. . . . [T]he Court has long recognized that a plaintiff may be able to
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prove the existence of a widespread practice that, although not authorized by
written law or express municipal policy, is ‘so permanent and well settled as to
constitute a custom or usage with the force of law.’” 485 U.S. at 127 (emphasis
added) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 68 (1970)) (further
internal quotation marks omitted). This doctrine is not at issue here.
Our Circuit has repeatedly adhered to Jett’s holding. In Ware v. Unified
School District No. 492, 902 F.2d 815 (10th Cir. 1990), decided the year after
Jett, we held that, as a matter of law, a Kansas superintendent was not the final
policymaker of the school district. Because of the “Supreme Court’s admonition
that the identification of final decisionmakers must be done as a matter of law,”
we refused to consider “evidence in the record” that “could be construed to
support an inference that the board delegated its final authority.” Id. at 819 n.1.
Similarly, in Jantz v. Muci, 976 F.2d 623 (10th Cir. 1992), we rejected a claim
that a Kansas school principal, rather than the school board, had final
policymaking authority over hiring decisions. We noted that while the district
court found the principal to have “virtual de facto hiring authority,” the court “did
not discuss Kansas law,” and we reversed its decision. Id. at 631.
Despite the weight of this authority, the plaintiffs argue that this Circuit’s
decision in Randle v. City of Aurora, 69 F.3d 441 (10th Cir. 1995), establishes
that juries can sometimes determine who has final policymaking authority. In
Randle, we held that a liquor licensing assistant fired by the City of Aurora might
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be able to hold the city liable for the allegedly discriminatory actions of the city’s
manager, finance director, and human resources director, because it was unclear
whether those officials were the city’s final policymakers. Id. at 444. In
analyzing the issue, Randle confirmed that “final policymaking authority is a
legal issue to be determined by the court.” Id. at 448 (internal quotation marks
omitted). However, we refused to decide whether the city officials sued in that
case had been delegated policymaking authority, because “disputes of material
fact . . . preclude[d] a grant of summary judgment for the City.” Id. at 449. This
disposition might seem to imply that issues of fact could be relevant to
identifying officials with final policymaking authority. Thus, the plaintiffs argue,
the “identification of those officials whose decisions represent the official policy
of the local governmental unit,” Jett, 491 U.S. at 737, may sometimes be resolved
by the jury as a factual issue.
In light of the governing precedent and the details of the case, we do not
think that the reference to “material fact” in Randle should be read so
expansively. Another reading is equally plausible and would be more consistent
with Supreme Court precedent. After the Randle opinion referred to a “dispute[]
of material fact,” 69 F.3d at 449, it went on to describe a dispute that was legal,
not factual. The decision explained that Ms. Randle’s claim survived summary
judgment because provisions in the City of Aurora’s charter and a city personnel
policy appeared to “grant the City Manager full authority over personnel policies .
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. . and . . . prevent the City Council from any involvement in employment
decisions.” Id. at 449. The Court then acknowledged that the manager’s
authority could in theory be restrained by city council regulations, but noted that
no such regulations had been mentioned in the record or in the city’s brief. Id. at
449–50. On the basis of these three documents alone—the charter, personnel
policy, and the absence of any regulations—the Court remanded the issue for
further proceedings of an unspecified form. 3
The charter, policy, and regulations are all essentially legal documents.
Our prior cases analyzing municipal liability under Jett and Praprotnik have
treated city ordinances as law. See, e.g., Melton v. Oklahoma City, 879 F.2d 706,
724 (10th Cir. 1989). Indeed, we regularly read and apply city ordinances, not in
the record, just as we do federal and state statutes. Id. (city ordinance); United
States v. One (1) 1975 Thunderbird, 576 F.2d 834, 836 (10th Cir. 1978) (state
statutes); United States v. Van Buren, 513 F.2d 1327, 1328 (10th Cir. 1975)
(federal statute); Jackson v. Denver Producing & Ref. Co., 96 F.2d 457, 460 (10th
Cir. 1938) (city ordinance). 4 Similarly, the Randle Court noted that the personnel
3
The case settled shortly after remand. See Randle v. City of Aurora, No.
92-cv-2528 (D. Colo., filed Dec. 23, 1992), docket nos. 76, 77. Thus, no further
factfinding was ever conducted.
4
It is true that we sometimes describe our treatment of municipal law as
“judicial notice” pursuant to the Federal Rules of Evidence, see, e.g., Melton, 879
F.2d at 724 & n.25, even though the Rules “govern[] only judicial notice of
adjudicative facts.” Fed. R. Evid. 201(a). See also Id., 1972 Advisory Comm.’s
(continued...)
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policy had apparently been incorporated by the city charter. Randle, 69 F.3d at
449 (quoting Charter of City of Aurora, § 7–4 (b)). Jett made clear that for
purposes of municipal liability, municipal ordinances and regulations are not facts
to be scrutinized by lay juries but rather legal documents whose contents should
be applied by judges. Thus, when the Court in Randle turned to an analysis of the
city charter, regulations, and official personnel policy, we do not think it intended
to contradict its earlier statement that “final policymaking authority is a legal
issue to be determined by the court.” 69 F.3d at 447 (internal quotation marks
omitted). Instead, Randle recognized what the Supreme Court held—that final
policymaking authority must be determined by a judicial examination of state and
local law, not turned over to the jury.
B. Superintendent Dougherty Was Not the Final Policymaker
We have concluded that the instruction authorizing the jury to determine
who was the final policymaker for these hiring decisions was erroneous. Our
inquiry, however, cannot end there. If as a matter of law Mr. Dougherty was the
4
(...continued)
Notes (“[T]he manner in which law is fed into the judicial process is never a
proper concern of the rules of evidence but rather of the rules of procedure.”).
It does not matter for this case whether our comments implying that this
“judicial notice” is conducted pursuant to the Federal Rules of Evidence are
correct. Whether an issue is “factual” or “legal” for purposes of the federal rules
does not conclusively establish whether it is to be resolved by the judge or the
jury in a § 1983 suit. See Markman v. Westview Instruments, Inc., 517 U.S. 370,
377–78 (1996); City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S.
687, 708, 718–720 (1999) (applying Markman doctrine to § 1983 cases). As we
have explained, Jett has settled the issue for us here.
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final policymaker, then submitting the issue to the jury may have been
inconsequential because the correct procedure would have yielded the same
answer. However, we conclude that Mr. Dougherty did not exercise such
authority, and therefore that the municipality is not liable for any discrimination
he may have committed. 5
Under Wyoming law, the Board of Trustees is vested with the authority to
make personnel decisions. The statute governing school trustees gives them the
power to “[e]mploy and determine the salaries and duties of” superintendents,
principals, teachers, and all other school personnel. Wyo. Stat. Ann. § 21-3-
111(a)(vi). The plaintiffs do not dispute this, but argue that because the school
board did not adequately supervise Mr. Dougherty, it delegated this authority to
him and gave him the school board’s status as final policymaker. In light of the
legal—not factual—nature of the municipal liability inquiry, however, we are
interested only in delegations of legal power, not in whether the board’s actual
exercise of its power of review was sufficiently aggressive. See Jantz, 976 F.2d
at 631. With this in mind, we conclude that the board’s delegation of
administrative power to the superintendent did not turn him into the final
policymaker.
5
The plaintiffs also argue that Mr. Dougherty may have delegated some of
his status as delegated policymaking authority to his assistant, Terry Burgess.
Because we conclude that Mr. Dougherty had no such status to delegate, we
necessarily conclude that Mr. Burgess lacked final policymaking authority too.
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The school board has adopted a policy entitled “Board/Superintendent
Relationship” explicitly delegating “its executive powers” to the school
superintendent. The policy explains:
The Board believes that the legislation of policies is the most
important function of the school board and that the execution of the
policies should be the function of the Superintendent.
Delegation by the Board of its executive powers to the
Superintendent provides freedom for the Superintendent to manage
the schools within the Board’s policies and frees the Board to devote
its time to policymaking and evaluation functions.
The Board holds the Superintendent responsible for the
administration of its policies, the execution of Board decisions, the
operation of the internal machinery designed to serve the school
programs, and for keeping the Board informed about school
operations and problems.
The Board shall strive to procure, when a vacancy exists, the best
professional leader available for the chief administrative post.
App. 1870. It then concludes by describing the powers that the board agrees to
extend to the superintendent, including a promise that “the Board . . . shall . . .
[a]ct only upon the recommendation of the Superintendent in matters of
employment or dismissal of school personnel.” Id. A second policy, titled “Staff
Hiring,” makes the superintendent “responsible for developing selection
procedures and recommending candidates to the Board.” App. 2482. Following
Praprotnik, we look primarily to two factors in deciding whether an official is a
final policymaker within his area of authority: first, whether his “discretionary
decisions are constrained by general policies enacted by others,” and second,
whether those “decisions are reviewable by others.” Dill v. City of Edmond, 155
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F.3d 1193, 1211 (1998) (internal quotation marks omitted). Under these factors,
we are not persuaded that the board’s policies enact a delegation so final that the
superintendent’s “edicts or acts may fairly be said to represent official policy.”
Monell, 436 U.S. at 694. 6
First, the board’s policy explicitly provides that the superintendent’s
decisions are to be “constrained by general policies enacted by” the school board.
See Dill, 155 F.3d 1211. The superintendent is charged with “executi[ng]” only
the policies “legislat[ed]” by the board, and the policy reiterates his duty “to
manage the schools within the Board’s policies.” App. 1870 (emphasis added).
The additional policy instructing him to develop selection procedures and make
recommendations does not change this; like all of the superintendent’s duties, it is
subject to the general instruction that he implement the board’s policies rather
than creating his own. The Fifth Circuit, confronting a similar distribution of
executive and legislative power by a school board, has reached the same
conclusion. In Barrow v. Greenville Independent School District, 480 F.3d 377
(5th Cir. 2007) the court held that a superintendent’s final power to make
recommendations or personnel transfers did not make him the final policymaker
over those personnel decisions. The court noted its prior decisions that “under
6
The board also argues that Wyoming law actually forbids delegations of
authority over personnel matters from school boards to superintendents, an issue
not clearly resolved by Wyoming case law. Because we conclude that the
district’s policies do not attempt to delegate final policymaking authority, we do
not need to resolve it here.
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Texas law, school boards make policy and superintendents administer,” id. at 380,
and concluded that a superintendent’s authority to execute policies did not make
him the final policymaker for purposes of Monell. Id. at 381–82. 7
Second, under the board’s policies at issue in this case, the superintendent’s
hiring decisions “are reviewable by others.” Dill, 155 F.3d at 1211. When the
superintendent puts forward the candidates recommended by the committee, the
board may decide not to hire them. If the board does not like the candidates the
superintendent puts forward, it may demand new ones. This review prevents the
superintendent from being a final policymaker.
The plaintiffs challenge this conclusion on two grounds. They argue that
the policy providing that the board shall hire “only upon the recommendation of
the Superintendent,” App. 1870, gives him a final veto power over particular
candidates (although in one case Mr. Dougherty actually supported one of the
plaintiffs). Other circuits have rejected the argument that a potential ability to
veto new candidates by failing to recommend them turns a school administrator
into a policymaker, see Barrow, 480 F.3d at 381–82; Adkins v. Board of Educ.,
982 F.2d 952, 959 (6th Cir. 1993), and so do we. The ultimate authority to hire
employees and to decide what rules govern hiring is retained by the board. The
superintendent’s power to recommend is simply a component of the board’s hiring
7
If anything, Barrow featured a closer case than is presented here, because
the superintendent’s “‘sole authority’ to recommend” came from state statute, not
a policy adopted by, and therefore rescindable by, the board. 480 F.3d at 381.
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power, not a separate source of district policy—indeed, the recommendation
power has meaning only within the hiring system run by the board. Thus, any
complaint about the superintendent’s failure to properly recommend candidates to
the board belongs in a suit against him personally, not the district.
Alternatively, the plaintiffs complain that in practice the board’s
supervision of the superintendent’s role in the hiring process was so deferential
that he was functionally unreviewed. But this appears to confuse the legal
question of the locus of final decisionmaking authority with the factual question
of how aggressively or independently the board tends to exercise the power it has.
“If the board retains the authority to review, even though it may not exercise such
review or investigate the basis of the decision, delegation of final authority does
not occur.” Jantz, 976 F.2d at 631. As a plurality of the Supreme Court put it in
Praprotnik, “[s]imply going along with discretionary decisions made by one’s
subordinates . . . is not a delegation to them of the authority to make policy.” 485
U.S. at 130 (plurality opinion). Regardless of whether plaintiffs are right that the
board did not aggressively supervise Mr. Dougherty’s decisions, the board had the
authority to do so. Whether it used it or not, that authority makes the board, not
the superintendent, the proper target in a municipal liability suit. To hold
otherwise and attempt to dig into the details of the board’s supervisory activities
in this case would be to make the “[un]justified . . . assump[tion] that municipal
policymaking authority lies somewhere other than where the applicable law
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purports to put it.” Id. at 126. That would subject school boards to “capricious”
review by federal juries for every municipal squabble. Id. at 124 n.1,
It is true that in analyzing this element of municipal liability in Randle we
held that review must be “meaningful—as opposed to merely hypothetical.” 69
F.3d at 449. This caveat must not be taken out of context, however. As we have
explained, Randle did not attempt to repudiate the rule that policymaking
authority is discovered by looking to the presence of legal authority rather than
examining the facts of its exercise in a particular case. Randle held that the city
council’s potential ability to pass regulations making the city manager’s decisions
reviewable did not stop him from being a final policymaker, because no such
regulations had been passed. Id. at 449–50. In other words, Randle requires us to
look to the legal structure actually in place, not to imagine “hypothetical” review
mechanisms that might exist if the legal structure changed. Analogously, we have
held that the power of others to remove an official from his position does not
necessarily keep him from being a final policymaker, because the “the power of
ouster [i]s too general” to function as a mechanism of reviewing individual
decisions, Starrett v. Wadley, 876 F.2d 808, 819 (10th Cir. 1989), just as the fact
that a city council is elected does not keep it from being a city’s final
policymaker. However, we have never held a legally reviewable decision
unreviewable for purposes of municipal liability merely because we were
unsatisfied with the actual exercise of a board’s oversight authority. That rule
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would immerse us into fact-bound disputes about municipal politics and
administration in nearly every case, the very approach rejected by Jett.
C. Judgment as a Matter of Law
Because Superintendent Dougherty was not the final policymaker in
Sheridan County School District No. 2, nothing remains of the plaintiffs’ case
against the district. The district appealed the district court’s decision denying it
judgment as a matter of law, which means we must decide whether—under the
correct legal standard—the evidence at trial was sufficient for the jury to find that
the school district itself had discriminated. See Sims v. Great Am. Life Ins. Co.
469 F.3d 870, 890–91 (2006) (“We review de novo a district court’s denial of a
motion for judgment as a matter of law, viewing the evidence in a light most
favorable to the opposing party and drawing all reasonable inferences therefrom. .
. . [I]f ‘there is no legally sufficient evidentiary basis for a reasonable jury to find
for the issue against that party’ . . . we reverse a jury’s verdict.”) (quoting Fed. R.
Civ. P. 50(a)(1)).
On appeal the plaintiffs do not argue that their claims can survive if neither
Mr. Dougherty’s conduct nor Mr. Burgess’s can form the basis for municipal
liability. See Aplee.’s Br. 35–45; id. at 36 (“[P]laintiffs’ claim is a simple one:
Dougherty and Burgess, through the authority of the superintendent’s office,
manipulated the hiring selection processes . . . to ensure that Hitt and Roberts
were deprived of future employment as administrators in the District, and they did
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this because of Hitt’s and Roberts’ sexual orientation.”); see also App. 1751–52
(plaintiffs’ closing argument) (“This case is about delegated authority. . . . Here
my clients lost out, not because the board voted against them, but because Mr.
Dougherty . . . violated my clients’ rights.”). Because this is the only ground on
which the plaintiffs defend the judgment below, we conclude that the defendants’
motion for judgment as a matter of law under Federal Rule of Civil Procedure
50(b) should have been granted.
III. QUALIFIED IMMUNITY
In addition to suing the school district under a theory of municipal liability,
Ms. Milligan-Hitt and Ms. Roberts sued Mr. Dougherty in his personal capacity
for the same actions discussed above. This portion of the suit faces a different
obstacle, because Mr. Dougherty is a state actor shielded by qualified immunity.
See Anderson v. Creighton, 483 U.S. 635, 638–39 (1987); Butz v. Economou, 438
U.S. 478, 500–04 (1978). The district court dismissed the personal-capacity suit
on a motion for summary judgment, finding that while the plaintiffs had alleged
facts demonstrating that Mr. Dougherty’s actions were unconstitutional, the law
was not “clearly established,” and therefore he could not be sued personally for
damages. App. 104. Thus, the claims against Mr. Dougherty never went to trial,
even though his conduct was the focus of the suit against the district. After the
jury’s verdict, the plaintiffs cross-appealed the grant of summary judgment in
favor of Mr. Dougherty. They argue that the constitutional violation found by the
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district court was a violation of clearly established law, and therefore that they
ought to be permitted to proceed to trial against Mr. Dougherty himself. We
disagree, and affirm the district court’s grant of summary judgment.
A. The Record and Appendix
At the outset, Mr. Dougherty argues that deficiencies in either the record on
appeal or the appendix (he refers to each in his brief) prevent us from adequately
reviewing the grant of summary judgment in his favor, and that we therefore must
affirm without considering the merits. The plaintiffs respond that the record and
appendix both contain all of the information necessary for us to decide their
claim.
Because of the parties’ confusion about the relationship between the
appendix and the record, we wish to clarify. The record on appeal comprises all
of “the original papers and exhibits filed in the district court; . . . the transcript of
proceedings if any; . . . and a certified copy of the docket entries prepared by the
district clerk.” Fed. R. App. P. 10(a). However, in this Circuit we leave the
record on appeal in the district court and rely primarily on an appendix that the
parties are obligated to produce, containing the relevant parts of the record. 10th
Cir. R. 30. 8 See Travelers Indem. Co. v. Accurate Autobody, Inc., 340 F.3d 1118,
1121 (10th Cir. 2003) (“In this circuit the appendix often serves the purpose of
8
This rule does not apply if parties have not retained counsel. 10th Cir. R.
30.1.
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the record on appeal.”). We sometimes refer to this appendix colloquially as the
record on appeal, but technically it is not. The appellant’s appendix must be
“sufficient for considering and deciding the issues on appeal.” 10th Cir. R.
30.1(A)(1). If the appendix is insufficient on an issue that the appellee wishes us
to decide, he may file a supplemental appendix of his own. 10th Cir. R.
30.2(A)(1). If the appendix and its supplements are not sufficient to decide an
issue, we have no obligation to go further and examine documents that should
have been included, and we regularly refuse to hear claims predicated on record
evidence not in the appendix. 10th Cir. 30.1(A)(3); see, e.g., Travelers Indem.,
340 F.3d at 1121. However, we retain the authority to go beyond the appendix if
we wish, because all of the transcripts (if they have been ordered) 9 and documents
and exhibits filed in district court remain in the record regardless of what the
parties put in the appendix. United States v. Williams, 511 F.3d 1044, 1044 n.1
(10th Cir. 2007).
We ordered the parties to this litigation to produce a consolidated appendix
adequate to resolve both the appeal and the cross-appeal. See Order Clarifying
Parties and Briefing, at 1–2 (Dec. 13, 2006). The bulk of the evidence in the
9
Because the record automatically contains documents, exhibits, and
transcripts, the major failure parties can make on appeal with respect to the record
(as opposed to the appendix) is to neglect to order transcripts that are necessary to
adequately consider an issue, see Fed. R. App. P. 10(b)(2), although we have
sometimes ordered such transcripts on our own authority. See, e.g., McKinney v.
Gannett Co., 694 F.2d 1240, 1241 n.1 (10th Cir. 1982).
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appendix consists of the transcript of the trial against the school district. Mr.
Dougherty wears two hats in this litigation—as personal defendant and as alleged
policymaker for the school district—but evidence produced at the trial against the
school district is not carried over into the personal capacity suit. Although the
appendix contains the district court’s summary judgment order, it does not
contain the evidence that the court examined when it concluded that there was a
material issue of fact as to whether the defendant had violated the Constitution.
Mr. Dougherty argues that the plaintiffs should have included these materials
from the record in the appendix, and that their failure to do so should cause us to
affirm the district court’s grant of summary judgment without confronting the
merits. We disagree, and will resolve the plaintiffs’ appeal.
The district court rendered two holdings in the course of granting Mr.
Dougherty’s summary judgment motion: one adverse to him (that he violated the
Constitution) and one in his favor (that the constitutional rule he violated was not
clearly established at the time). The plaintiffs asked us to reconsider only the
issue they lost—whether the constitutional rule Mr. Dougherty allegedly violated
was clearly established. The appendix they have provided is “sufficient for
considering and deciding” that purely legal issue, 10th Cir. R. 30.1(A)(1), and
indeed the plaintiffs’ opening brief relies on no documents outside the appendix
provided.
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It is Mr. Dougherty who asks us to consider a second issue—whether the
district court’s assessment of the summary judgment record was correct when it
decided that he violated the Constitution in the first place. Although he asks us to
disagree with the district court, Mr. Dougherty may raise this argument without
filing a cross-appeal because it is an alternative ground for affirming the
judgment in his favor. S. Utah Wilderness Alliance v. BLM, 425 F.3d 735, 745
n.2 (10th Cir. 2005). However, the appendix is inadequate to consider the issue
he raises, because we do not have the evidence the district court considered when
deciding that Mr. Dougherty violated the Constitution. If the defendant wishes us
to review the district court’s conclusion that he violated the Constitution, he
should have put evidence into the appendix that would allow us to review the
challenged decision.
B. Qualified Immunity
Mr. Dougherty is accused of discriminating in violation of the Equal
Protection Clause. Because he raised qualified immunity as a defense to the suit,
the district court engaged in the famous two-step inquiry of Saucier v. Katz, 533
U.S. 194, 200 (2001), asking first whether he violated the Constitution, and
second, if so, whether that violation was forbidden by clearly established law. 10
10
The Supreme Court has granted certiorari to decide “[w]hether the
Court’s decision in Saucier v. Katz should be overruled.” Pearson v. Callahan,
76 U.S.L.W. 3510 (Mar. 24, 2008) (internal quotation marks and citations
omitted), granting cert. in Callahan v. Millard County, 494 F.3d 891 (10th Cir.
(continued...)
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The district court found that “the facts alleged show that Defendant Dougherty’s
conduct violated the Plaintiffs’ constitutional rights.” App. 102. The court’s
exact description of the conduct it found on summary judgment is slightly
ambiguous, and it is particularly important because, as we have explained, we are
taking this portion of the ruling as given. At one point the court concluded that
the “evidence could be enough for a reasonable jury to find that the Defendants as
a group—and Defendant Dougherty as an individual—were motivated by
animosity towards homosexuals in their dealings with the Plaintiffs and that this
animosity was a significant motivating factor in the adverse employment actions
taken against the Plaintiffs.” App. 103–04. The court did not find that the
defendant had no reasons for his decisions that could constitute a rational basis.
Later in its ruling, the court appeared to find that Mr. Dougherty had been
motivated by “community notions of morality” expressed in the parent complaint.
App. 109. The plaintiffs, who are cross-appealing, concede that any animus Mr.
Dougherty had “could be attributed to ‘community notions of morality,’” Cross-
Aplt.’s Reply Br. 2, so we will treat the district court’s ruling as a conclusion that
the only bases for Mr. Dougherty’s discrimination were “animus” and
“community notions of morality.”
10
(...continued)
2007). Because Mr. Dougherty has forfeited review of the first prong of the test,
Saucier’s fate is not important to this appeal.
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The court also concluded that in 2002 and the first half of 2003, neither the
Supreme Court nor this Circuit had clearly established such discrimination to be
unconstitutional. To determine whether the law was clearly established, i.e.,
“whether it would be clear to a reasonable officer that his conduct was unlawful,”
we look to the relevant precedents at the time of the challenged actions and the
obviousness of the violation in light of them. Casey v. City of Fed. Heights, 509
F.3d 1278, 1284 (10th Cir. 2007) (internal quotation marks omitted); see id. at
1283–85. One purpose of qualified immunity is that we do not force public
officials to guess—on pain of personal liability for damages—how the law will
have developed by the time their actions are scrutinized in federal court. See
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus we offer no opinion on
whether Lawrence v. Texas, 539 U.S. 558 (2003), decided after the events of this
case, clearly established a rule of equal protection relevant here when it overruled
Bowers v. Hardwick, 478 U.S. 186 (1986). Examining our cases interpreting
Bowers, we conclude that at a minimum it was not reasonably clear that the
discrimination alleged here was unconstitutional so long as Bowers was good law.
The district court relied on our decision in Jantz v. Muci, 976 F.2d 623,
628–30 (10th Cir. 1992), which upheld a qualified immunity defense for a school
principal accused of refusing to recommend a new teacher and coach for a job at a
Wichita high school on account of the applicant’s homosexuality. We explained
that “we d[id] not find a clearly established line of authority proscribing an
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adverse action against civilian job applicants based on homosexual or perceived
homosexual orientation.” Id. at 629. We relied particularly on the Supreme
Court’s decision in Bowers, which upheld a state sodomy statute against a due
process challenge, and which caused several circuits to conclude that because the
state could criminalize homosexual conduct, it could also discriminate on the
basis of homosexuality in other respects. Jantz, 976 F.2d at 629–30 (citing Ben-
Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989); Woodward v. United States, 871
F.2d 1068 (Fed. Cir. 1989); Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987)).
“Although the Hardwick Court did not deal with an equal protection claim,” we
acknowledged, “for qualified immunity purposes we think its holding, and the
general state of confusion in the law at the time, cast enough shadow on the area”
to cause us to uphold the defendant’s qualified immunity defense. Jantz, 976
F.2d at 630.
Plaintiffs acknowledge the import of our ruling in Jantz, but argue that it
became clear as early as 1996 that “government action that discriminates against
homosexuals can[not] pass muster under the Equal Protection Clause merely
because the community may disapprove of homosexuality,” Cross-Aplt.’s Reply
Br. 9, when the Supreme Court decided Romer v. Evans, 517 U.S. 620 (1996).
We do not think Romer’s holding was so clear, and do not think it clearly
overruled Jantz’s holding that municipal officials may sometimes defer to
community standards when discriminating on non-suspect grounds.
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Romer held that an amendment to the Colorado Constitution that would
have “prohibit[ed] all legislative, executive or judicial action at any level of state
or local government designed to protect” homosexuals violated the Equal
Protection Clause. 517 U.S. at 624. In explaining why the amendment was
unconstitutional, the Court noted that the amendment “defie[d] . . . conventional
inquiry” because of “its sheer breadth” and its “peculiar property of imposing a
broad and undifferentiated disability on a single named group.” Id. at 632. These
special features of the Colorado amendment justified the Court’s conclusion that
the amendment was “unprecedented,” and therefore especially problematic. Id. at
633. Romer did not actually declare sexuality to be a “suspect” classification like
racial classification, and did not indicate that discrimination on the basis of
sexuality in other, more common, contexts would be judged with a similar
stringency. Nor did the majority opinion overrule—or even mention—Bowers v.
Hardwick, the precedent on which our opinion in Jantz relied. Because the case
“defie[d] . . . conventional inquiry,” the decision shed little light on the more
conventional inquiry of Jantz.
This is not necessarily to minimize the impact of Romer; it is simply to say
that Romer’s impact on prior precedent was not clear when it was decided. It is
possible, as we have noted before, that the decision will ultimately “represent the
embryonic stage[]” of a major change in doctrine. Powers v. Harris, 379 F.3d
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1208, 1224 (10th Cir. 2004). 11 But officials held personally liable for damages do
not have to guess whether that is so before the courts decide it, and Romer does
not reveal its own scope. Because the constitutional rule at issue was not clearly
established for the period relevant to this case, Superintendent Dougherty may not
be held personally liable for damages.
IV. CONCLUSION
Because Mr. Dougherty lacked final policymaking authority, his alleged
discrimination could not be a basis for municipal liability. Because the law did
not clearly forbid Mr. Dougherty’s alleged actions at the time, he has qualified
immunity from personal suit. Thus, the judgment of the district court is
REVERSED as to the claim against Sheridan County School District No. 2 and
11
Academic commentary by the decision’s supporters confirms the
ambiguity of Romer’s impact. See, e.g., William N. Eskridge, Jr., Some Effects of
Identity-Based Social Movements on Constitutional Law in the Twentieth Century,
100 Mich. L. Rev. 2062, 2191 (2002) (“[Romer] is a mystery: the breadth of its
reasoning could signal the full constitutionalization of gay people’s politics of
recognition, but the squirreliness of the state amendment renders the case
potentially sui generis.”); Pamela S. Karlan, Some Thoughts on Autonomy and
Equality in Relation to Justice Blackmun, 26 Hastings Const. L.Q. 59, 67 (1998)
(“In describing the Colorado provision as ‘def[ying] . . . conventional inquiry’
and ‘confound[ing] [the] normal process of judicial review,’ the Court implicitly
refused to view its opinion as a template for future challenges to less
unconventional forms of discrimination against gays and lesbians”) (alterations
and ellipsis in original; footnote omitted); Daniel Farber & Suzanna Sherry, The
Pariah Principle, 13 Const. Comment. 257, 257 (1996) (“The decision also does
not necessarily threaten most other restrictions on homosexuals . . . .”); Louis
Michael Seidman, Romer’s Radicalism: The Unexpected Revival of Warren Court
Activism, 1996 Sup. Ct. Rev. 67, 73 (“No one can write confidently about what
Romer ‘means’ because its ultimate meaning is yet to be determined by future
judges and litigants.”).
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the official-capacity defendants and AFFIRMED as to the claim against Craig
Dougherty in his individual capacity.
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