Melanie MARTINEZ, Plaintiff-Appellant, Cross-Appellee, v. The CITY OF OPA-LOCKA, FLORIDA, A Municipal Corporation, Defendant-Appellee, Marcia L. Connor, Individually, Defendant-Appellee, Cross-Appellant.
No. 90-6057.
United States Court of Appeals, Eleventh Circuit.
Sept. 10, 1992.
971 F.2d 708
The Court: I have ruled on that. My role is done.
(Emphasis added.)
We hold that the district court‘s role is not done.
At the sentencing hearing, the court shall afford the counsel for the defendant an opportunity to comment upon the probation officer‘s determination [of the sentencing classifications and sentencing guideline range believed to be applicable to the case-here, the guideline range as affected by the Section 3B1.1(c) adjustment to the base offense level] and on other matters relating to the appropriate sentence.
IT IS SO ORDERED.
James H. Greason, Miami, Fla., for plaintiff-appellant.
Robert I. Buchsbaum, Harriet Lewis, Hollywood, Fla., for defendants-appellees.
PER CURIAM:
Melanie Martinez brought this action against the City of Opa-Locka, Florida (“the City“) and Marcia L. Connor in the United States District Court for the Southern District of Florida, alleging that her civil rights under the first and fourteenth amendments and
I. FACTS AND PROCEDURAL HISTORY
The City operates under a charter that establishes a “commission-manager” form of municipal government. The charter grants the City Commission general legislative and policy-making authority. The City Manager serves as the City‘s chief executive officer and head of the administrative branch of the municipal government. The charter authorizes the City Manager to create administrative departments, each of which is headed by a director who reports directly to the City Manager.
In 1985, Martinez signed an employment contract with the City to become Director of the Purchasing Department. She was responsible for ensuring that all of the City‘s purchases conformed to the bid procedures set forth in the City‘s Code of Ordinances. On March 26, 1988, the Commission, sitting as a Board of Inquiry, subpoenaed Martinez to testify concerning the purchasing practices of the City. In appearances before the Board of Inquiry in April and May 1988, Martinez testified that City Manager Connor violated the prescribed bid procedures for the purchase of approximately one hundred thousand dollars worth of furniture for City Hall. Martinez gave a similar statement to an investigator from the State Attorney‘s office for Dade County, Florida.
Martinez’ father, Brian Hooten, was a Commissioner who served on the Board of Inquiry. He was defeated in his bid for re-election to his Commission seat on November 11, 1988. On November 14, 1988, on her first day back in her office after an out-of-town trip, Connor terminated Martinez’ employment with the City. Afterward, Martinez filed this three-count complaint against the City and Connor individually. She alleged in count I that her first and fourteenth amendment rights of free speech were violated when she was discharged in retaliation for her testimony before the Board of Inquiry and her statement to the State Attorney‘s office. She sought relief pursuant to
At trial, Connor testified that she fired Martinez solely for nonperformance of her duties. She denied that her actions were motivated by Martinez’ testimony before the Board of Inquiry or her statements to the State Attorney‘s office. The jury, however, found that Martinez’ exercise of her first amendment rights was a substantial or motivating factor in her firing, and that her dismissal infringed upon those rights. On March 12, 1990, the district court entered a final amended judgment awarding Martinez (1) $101,000.00 in compensatory damages against the City and Connor, jointly; (2) $35,000.00 in punitive damages against Connor; and (3) $5,280.27 for breach of contract against the City.4 The City and Connor filed a joint motion for judgment n.o.v., or in the alternative, for new trial, on March 21, 1990. The district court granted the City‘s motion after concluding that Connor lacked final policymaking authority in personnel matters, and therefore could not subject the City to
II. JURISDICTION
As a preliminary matter, Martinez challenges the jurisdiction of this court to entertain Connor‘s appeal. Final judgment was filed in this case on March 2, 1990. An amended final judgment was filed on March 7, 1990, and entered on the docket sheet on March 12, 1990, to correct a clerical error in the March 2, 1990 judgment. Connor‘s motion for judgment n.o.v. was filed on March 21, 1990. Martinez contends that Connor‘s motion for judgment n.o.v. was untimely because it was filed more than ten days after the filing of the amended final judgment.5 However, the “entered-on-docket” date, in this case March 12, 1990, triggers the start of the period for filing post-judgment motions. Therefore, Connor‘s motion for judgment n.o.v. was timely filed within ten days of entry of the amended final judgment, and we have jurisdiction to entertain the appeal.
III. CONNER‘S APPEAL
In reviewing the grant or denial of a motion for judgment n.o.v., we adopt the same standard as that followed by the district court. Miles v. Tennessee River Pulp and Paper Co., 862 F.2d 1525, 1528 (11th Cir. Cir.1989). All the evidence must be considered “in the light and with all reasonable inferences most favorable to the party opposed to the motion.” Id. (quoting Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. Cir.1969). The motion should be granted only if the evidence points so overwhelmingly in favor of one party that no reasonable person could draw a contrary conclusion. Where reasonable people could differ on the basis of substantial, conflicting evidence, the motion should be denied. Simon v. Shearson Lehman Bros., Inc., 895 F.2d 1304, 1310 (11th Cir. Cir.1990).
A.
“Although the law is well-established that the state may not demote or
Because the first two elements of the plaintiff‘s prima facie case constitute matters of law, we review them de novo. See Bryson, 888 F.2d at 1566 n. 2; Allen v. Scribner, 812 F.2d 426, 430 n. 8 (9th Cir. 1987). Whether the plaintiff‘s speech addressed a matter of public concern depends upon the content, form and context of the statement considered in light of the entire record. Rankin v. McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 2897, 97 L.Ed.2d 315 (1987). The content of Martinez’ statements before the Board of Inquiry and to the State Attorney‘s office provided information concerning the expenditure of public funds in violation of City‘s Code of Ordinances. The form of her expression was testimony before the City‘s legislative body and statements to an investigator of the State Attorney‘s office. She made her statements in the context of an examination into the activities of City personnel by officials with authorized investigatory powers. As stated in Allen:
[S]peech that concerns “issues about which information is needed or appropriate to enable the members of society” to make informed decisions about the operation of their government merits the highest degree of first amendment protection.
Allen, 812 F.2d at 431 (citation omitted). Under these circumstances, we conclude that Martinez’ testimony was speech that clearly affected a matter of public concern.
Several factors must also be considered in assessing whether the City‘s interest in promoting efficient government services outweighs Martinez’ interest in protected freedom of speech, including “(1) whether the speech at issue impedes the government‘s ability to perform its duties efficiently, (2) the manner, time and place of the speech, and (3) the context within which the speech was made.” Bryson, 888 F.2d at 1567 (emphasis in original) (citations omitted). Rather than impeding the government‘s ability to perform its duties, Martinez’ testimony was in furtherance of the City‘s responsibility to pursue efficiency in its bid procedures. Her expression clearly was made at a proper time, place and manner, and the context in which she made her statements required her to furnish information respecting City purchasing practices. Balancing these factors, we conclude that Martinez’ free speech rights were not outweighed by the City‘s interest in providing proper government service.
We next examine whether this conduct played a motivating role in firing Martinez. This issue is one of fact for the jury to decide, and judgment n.o.v. can be granted only if the jury‘s verdict is not supported by substantial evidence. The evidence adduced at trial disclosed that Connor knew the subject matter of the Board of Inquiry‘s investigation, could have learned the nature of Martinez’ testimony by reading the local newspaper, complained to the City Commission that certain department heads had talked to members of the Board of Inquiry, admitted that Martinez could have been one of those department heads, and fired Martinez shortly after her father had been defeated in his bid to be re-elected to the Commission that was engaged in the investigation. This evidence was sufficient to support the jury finding that Martinez’
Finally, Connor testified that she fired Martinez only because of her poor performance evaluations. This testimony is the only evidence Connor submitted to demonstrate that she would have fired Martinez despite her statements to the Board of Inquiry or the State Attorney‘s office. Neither she nor the City introduced copies of Martinez’ performance evaluations. Thus, whether Connor met her burden of proving that she would have fired Martinez in the absence of her exercise of free speech became a credibility determination for the jury. The district court did not err in refusing to grant judgment n.o.v. in favor of Connor.
B.
Connor also raised the defense of qualified immunity in her motion for judgment n.o.v. Whether Connor is entitled to the defense is a matter of law for this court to decide de novo. Adams v. St. Lucie County Sheriff‘s Dept., 962 F.2d 1563, 1567 (11th Cir.1992). Connor claims on appeal that she is entitled to qualified immunity from damages because she reasonably believed that her actions were lawful. A municipal official is entitled to qualified immunity for actions taken pursuant to their discretionary authority if a reasonable official could have believed that his or her actions were lawful in light of clearly established law and the information available. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). “If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Id. at 818, 102 S.Ct. at 2738. The law concerning whether a public employee‘s expression is constitutionally protected conduct was clearly established at the time Connor fired Martinez. See Kurtz v. Vickrey, 855 F.2d 723 (11th Cir.1988). Connor admitted as much in her trial testimony. Nonetheless, the jury found as a factual matter that Connor fired Martinez in retaliation for her testimony and statements concerning the City‘s purchasing practices. Consequently, Connor was not entitled to the qualified immunity defense.
IV. MARTINEZ’ CROSS-APPEAL
Local governments are directly liable under
- Municipalities have section 1983 liability only for acts officially sanctioned or ordered by the municipality.
- Only those municipal officials who have “final policymaking authority” may subject the municipality to section 1983 liability for their actions.
- The determination of whether or not a particular official has “final policymaking authority” is governed by state law, including valid local ordinances and regulations.
- The challenged action must have been taken pursuant to a policy adopted by the official or officials responsible for making policy in that particular area of the city‘s business, as determined by state law.
Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 997 (11th Cir.1990) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 125, 108 S.Ct. 915, 924, 925, 99 L.Ed.2d 107 (1988) (plurality opinion)). Additionally, the Court has cautioned that “a
Applying these principles to the case at hand, Art. II § 9 of the City‘s charter provides that “[a]ll powers of the city and the determination of all matters of policy shall be vested in the commission.” Pursuant to Art. I § 4(3)(a), “[t]he Commission shall have and exercise all powers of the City not specifically conferred upon other offices [officers] and employees.” However, Art. II § 11 of the City‘s charter, entitled “Commission not to interfere with appointments or removals,” states that:
Neither the commission nor any of its members shall direct or request the appointment of any person to, or his removal from, office by the city manager or by any of his subordinates, or in any manner take part in the appointment or removal of officers and employes [employees] in the administrative service of the city ... Any commissioner violating the provisions of this section, or voting for a resolution or ordinance in violation of this section, shall be guilty of a misdemeanor and upon conviction thereof shall cease to be a commissioner. (Emphasis added).
By this provision, the City Manager‘s decision to hire or fire administrative personnel is completely insulated from review by the Commission. The general policymaking authority granted by the charter to the Commission is thereby vitiated with respect to the appointment or removal of employees in the administrative service.
Additionally, Art. XIII § 185 divides the civil service into two categories of employees, unclassified and classified. The unclassified service includes the City Manager and the directors of departments, among others. Although the Personnel Board is empowered to hear appeals from personnel decisions regarding classified employees, see Art. XIII § 183(4), there is no provision in the charter granting the Personnel Board or any other duly constituted body the power to review personnel decisions that affect unclassified employees in the administrative service. Thus, an unclassified employee in the administrative department of the City has no recourse in the event of an adverse personnel decision by the City Manager. As an example, Art. XIII § 179 of the charter requires that “appointments and promotions in the administrative service of the City ... shall be made according to merit and fitness....” Despite this directive, an unclassified employee in the administrative service who was terminated by the City Manager on a basis other than merit or fitness would have no higher authority before which to plead. Any member of the Commission who sought to intervene on the dismissed employee‘s behalf could risk being convicted of a misdemeanor. Charter, Art. II § 11. This case is therefore unlike Praprotnik, in which the City of St. Louis’ charter contained a provision similar to Art. XIII § 179. See Praprotnik, 485 U.S. at 129, 108 S.Ct. at 927. In Praprotnik, the Court held that the St. Louis Civil Service Commission had the authority to review a discretionary decision by an official made in violation of the charter‘s requirement that all personnel decisions were to be based on merit and fitness. It concluded that the Civil Service Commission‘s “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.” Id. at 130, 108 S.Ct. at 928. The present case does not concern a delegation of policy-making authority by a superior officer to his subordinate. Instead, the City‘s charter eliminates the authority of any official or body to review the City Manager‘s decision to fire an unclassified employee for retaliatory reasons.
The Court also warned in Praprotnik that a municipal charter could not insulate the municipality from liability for constitutional deprivations merely by including a “precatory admonition against discrimination or any other employment practice not based on merit and fitness....” Id. at
V.
Accordingly, we AFFIRM the judgment of the district court with respect to the denial of Connor‘s motion for judgment n.o.v.,6 and REVERSE its judgment n.o.v. in favor of the City. Martinez requests attorney‘s fees for this appeal. As the prevailing party in the underlying litigation against Connor, Martinez is entitled to an award of fees incurred both in her successful defense of Connor‘s appeal and her successful cross-appeal. Finch v. City of Vernon, 877 F.2d 1497, 1508 (11th Cir. 1989); Cabrales v. County of Los Angeles, 864 F.2d 1454, 1466 (9th Cir.1988). Her motion for attorney‘s fees on appeal is therefore GRANTED, and we REMAND this issue for a determination by the district court of a reasonable fee award.
JOHNSON, Senior Circuit Judge, concurring in part and dissenting in part:
I cannot agree with the majority‘s conclusion that city manager Connor exercised final policymaking authority over Opa-Locka‘s employment practices. Consequently, I dissent from the majority‘s reversal of judgment n.o.v. on the issue of municipal liability.1
“It is well established that a municipality may be held liable under § 1983 only when the deprivation at issue was undertaken pursuant to city ‘custom’ or ‘policy,’ and not simply on the basis of respondeat superior,” Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1479 (11th Cir.1991). City policy is not limited to the official acts of a city‘s legislative body: “City policy also may be implicated by the acts of individual policymaking officials or by pervasive city custom.” Id. at 1480. A person with final decisionmaking authority does not, however, necessarily possess authority to make final policy. Pembaur v. City of Cincinnati, 475 U.S. 469, 481-83 & 483 n. 12, 106 S.Ct. 1292, 1299-1300 & 1300 n. 12, 89 L.Ed.2d 452 (1986); see City of St. Louis v. Praprotnik, 485 U.S. 112, 126-27, 108 S.Ct. 915, 925-26, 99 L.Ed.2d 107 (1988). In order for municipal liability to attach on the basis of a single unlawful act, the official who causes the harm “must also be responsible for establishing final government policy respecting such activity.” Pembaur, 475 U.S. at 482-83, 106 S.Ct. at 1300; see also Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 997 (11th Cir.1990). Thus, the fact that city manager Connor had the power to hire and fire-final decisional authority-does not necessarily mean that she had the authority to set the final policies governing municipal employment.
For reasons that are at best unclear, the majority has broadly construed article II, section 11 of the Opa-Locka city charter, reading this provision as conferring on the city manager absolute policymaking au-
If final policymaking authority is delegated, then the person who assumes the power to make final policy may create municipal liability on the basis of a single unlawful act. Jett, 491 U.S. at 737, 109 S.Ct. at 2723; Praprotnik, 485 U.S. at 124 n. 1, 127, 108 S.Ct. at 924 n. 1, 926; Pembaur, 475 U.S. at 483, 106 S.Ct. at 1300. When analyzing whether a delegation of final policymaking authority has occurred, the Court may examine both the city charter and the customs and practices of Opa-Locka with regard to who exercised final authority over the city‘s employment policies. Brown, 923 F.2d at 1480, Mandel v. Doe, 888 F.2d 783, 793 (11th Cir.1989).
Cross-appellant Martinez has not provided either this Court or the court below with any evidence that would support a finding that the city commission had delegated to Connor the authority to make final policy decisions regarding the city‘s employment policies. Moreover, as the plaintiff, she had the burden of establishing that her retaliatory discharge reflected an official policy of the city. See Brown, 923 F.2d at 1481. Thus, although city manager Connor is vested with final decisional authority to take action regarding an individual‘s employment with the city, there is no evidence before this Court showing that Connor has been delegated-either formally or through a de facto arrangement-the authority to set the final policies that govern the city‘s employment practices.4 It may well be
The majority has improperly and arbitrarily conflated the power to make a final decision with the power to set the policies that govern when a particular decision is proper. Because the district court‘s order granting judgment n.o.v. to Opa-Locka is due to be affirmed, I dissent.
UNITED STATES of America, Plaintiff-Appellee, v. Charles Eugene FORTENBERRY, Defendant-Appellant.
No. 91-7209.
United States Court of Appeals, Eleventh Circuit.
Sept. 10, 1992.