John Meyers v. City of Cincinnati , 14 F.3d 1115 ( 1994 )

MERRITT, Chief Judge.

This is an appeal from a judgment for the plaintiff in a civil rights case brought under 42 U.S.C. § 1983. On the recommendation of Cincinnati’s Director of Safety, the City Manager forced the retirement of the plaintiff, Mr. John Meyers, a 30-year official of the fire department. The Civil Service Commission ruled against Meyers’ appeal and left the decision of the City Manager in effect. This court has previously held that city officials forced Meyers to retire based upon disapproval of statements made by Meyers which were protected by the First Amendment. Thus we have held that the officials effectively .discharged Meyers in violation of the First Amendment. We do not revisit that decision here. The essential facts on which our previous decision was based are set out in Meyers v. City of Cincinnati, 934 F.2d 726 (6th Cir.1991). We remanded the case for further proceedings including resolution of the issues concerning the City’s liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which permits municipal liability under § 1983 for damages arising from the application of unconstitutional municipal policies and customs but not for employee conduct on a theory of respondeat superior.

District Judge Rubin concluded that the City was liable under Monell, and awarded plaintiff $393,445 in damages consisting of $368,445 for loss of pay and $25,000 for mental anguish, humiliation, and loss of reputation. The City of Cincinnati contends that it is not liable under Monell because city officials were not following a “custom or policy” within the meaning of Monell, and plaintiff’s constructive discharge was not pursuant to a “final policy” attributable to the City. .The City also contends that the damage award is excessive. We agree with Judge Rubin that the decision to engage in conduct in violation of the First Amendment was made or approved by a final policy-maker of the City of Cincinnati and that this conduct is sufficient to trigger municipal liability under Monell. We also agree with Judge Rubin in his award of damages and hence affirm the judgment below.

We address first the City’s Monell defense. In Monell, the Supreme Court established that § 1983 applies to municipalities and local governments. Monell, 436 U.S. at 690, 98 S.Ct. at 2035. A municipality is not, however, liable for every misdeed of its employees and agents. “Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts 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.

In 1987, Cincinnati’s Fire Chief instructed Meyers, the Assistant Fire Chief in charge of personnel, to investigate distribution of “unauthorized literature” to potential fire department recruits. This “literature” turned out to be business cards from PREP, Inc., an organization funded by the Department of Labor to help minorities compete for jobs. Meyers contacted PREP and spoke to Daisy Foster and Lucy Green. Foster and Green interpreted Meyers’ questions and statements to be criticism of affirmative action and complained to city officials. These officials investigated, held a disciplinary hearing, and decided to demote Meyers to district chief. The final decision was made by the City’s Director of Safety and approved by the City’s highest executive officer, the City Manager. Rather than accept the demotion and lose substantial retirement benefits, Meyers agreed to retire at the rank of assistant chief. Meyers then petitioned the municipal Civil Service Commission to restore him to his position. The Commission ruled that Meyers had voluntarily retired, a decision contrary to our previous decision as a matter of federal law that Meyers had been forced out in violation of the First Amendment.

The City argues that it is not liable under Monell because Meyers was not discharged pursuant to a formal city “policy.” The City states, as though it is dispositive, that “[t]here is no evidence of any policy or custom of disciplining municipal employees for exercising their right of free speech. There is no evidence that any -final policy-making official ever promulgated a policy of disciplining City employees for exercising their rights of free speech.” Petitioner’s Brief at 17. No municipal official in his right mind would advocate such a general policy. The City is not accused of routinely disciplining employees for exercising First Amendment rights or of having an officially promulgated policy to that effect. Its highest officials — the Safety Director, the City Manager and the Civil Service Commission — acted together to discipline John Meyers for exercising his constitutional rights in this one case.

The requirement that a municipality’s wrongful actions be a “policy” is not meant to distinguish isolated incidents from general rules of conduct promulgated by city officials. It is meant to distinguish those injuries for which “the government as an entity is responsible under § 1983,” Monell, 436 U.S. at 694, 98 S.Ct. at 2038, from those injuries for which the government should not be held accountable. ‘Monell is a ease about responsibility.” Pembaur v. City of Cincinnati 475 U.S. 469, 478, 106 S.Ct. 1292, 1297, 89 L.Ed.2d 452 (1986). “The ‘official policy’ requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.” Id. at 479-80, 106 S.Ct. at 1298.

The City of Cincinnati’s argument is that even if it did violate Meyers’ First Amendment rights, it did not do so pursuant to a general rule disfavoring free speech. In Pembaur, the Supreme Court addressed and rejected the same argument, holding that “it is plain that municipal liability may be imposed for a single decision by municipal policy-makers under appropriate circumstances.” Id. at 480, 106 S.Ct. at 1298.¹ The City’s contention that Meyers’ constructive discharge was an isolated incident does not, therefore, save the City from liability. If the decision to punish him for exercising his constitutional rights was made by the “government’s authorized decisionmakers” the City is responsible.

The City also relies on Monell to argue that municipal liability is precluded by the existence of a formal process of appeal to the Civil Service Commission. The Director of Safety and the City Manager are not final policy-making officials, the City contends, because employment decisions are reviewable by the Commission. Cincinnati’s Charter, Article IV, § 1, makes the City Manager “chief executive and administrative officer of the City.” The City Manager is authorized to “dismiss, suspend and discipline all officers and employees in.the administrative service under the control of the City Manager.” Administrative Code of the City of Cincinnati, Article II, § 1. The City Manager’s employee disciplinary actions are reviewable by the Civil Service Commission. Upon the suspension, demotion, or removal of a chief of the Fire Department, the affected employee may file an appeal with the Commission. R.C. 124.34. The Commission is then required to hear the appeal within thirty days of its filing and may “affirm, disaffirm, or modify the judgment of the appointing authority.” Id.

The Commission’s review does not preclude liability; on the contrary, the Commission’s denial of Meyers’ appeal is the ultimate source of liability in this ease:

When a subordinate’s decision is subject to review by the municipality’s authorized policymakers, they have retained the authority to measure the official’s conduct for conformance with their policies. If the authorized policymakers approve a subordinate’s decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.

City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 926, 99 L.Ed.2d 107 (1988). Meyers filed a timely appeal with the Commission, and the Commission ruled against him on the grounds that he had “voluntarily” retired, a substantive determination that he was not coerced which we found to be untrue as a matter of federal law. This decision was final and marked the end of the City’s appeal process for Meyers. A municipality may not escape Monell liability, as our dissenting colleague argues, by simply delegating decisionmaking authority to a subordinate official and thereafter studiously refusing to review his unconstitutional action on the merits.

That the Commission reached a final conclusion distinguishes this case from Pmprot-nik, in which the local Civil Service Commission stayed any action on the plaintiffs complaint pending the outcome of federal litigation on the matter. It is clear that the decision in Pmprotnik turns on the fact that in that ease the plaintiff submitted no evidence to show that the Commission had ever “so much as hinted that the unconstitutional acts of lower officials were permissible.” Id., 485 U.S. at 128, 108 S.Ct. at 927. In Pm-protnik the Commission had never come down with a final order, as in this case. After the Supreme Court had ruled and the federal court litigation was over, the plaintiff in Pmprotnik could return to the local Civil Service Commission and ask that it lift its stay and proceed to the merits of the case. If the Commission had then ratified the violation of plaintiff’s constitutional rights, plaintiff would be free to go back to federal court since the city’s top officials for purposes of Monell were now implicated in the violation. In the instant case, Meyers has supplied ample evidence to show that the Civil Service Commission ratified the unconstitutional acts of the City Manager. Unlike the Commission in Praprotnik, the Commission here did not stay the proceedings, giving Meyers an opportunity to return. It affirmatively approved and ratified the action of the Director of Safety and the City Manager which deprived Meyers of his rights of free speech. The dissenting opinion fails to take into account or even mention this significant distinction between this case and Praprotnik.

As our previous decision makes clear, the three, acting in combination, effectively forced Meyers out of his job in retaliation for his statements and then sought to have it appear that he “voluntarily” retired. The Civil Service Commission issued a final determination, actively participated in the constitutional violation and finalized Meyers’ deprivation. Defendant’s reliance on Praprot-nik is therefore misplaced.

* * if: ifc * *

The City also challenges the amount of damages awarded by the district court as excessive. The court awarded $368,445 for lost pay and lost benefits, and $25,000 for mental anguish, humiliation, and lost reputation, for a total amount of $393,445. The City claims that Meyers is not entitled to the full amount awarded for lost wages and benefits because he failed to mitigate his damages by seeking alternative employment. It also challenges the $25,000 award, arguing that “there is no evidence of mental anguish, harm or injury.”

In a § 1983 case the plaintiff has a duty to mitigate damages. See Rolfe v. County Bd. of Educ., 391 F.2d 77, 81 (6th Cir.1968). In this case each party contends that the other has the burden of proof on the issue of mitigation, and both parties rely upon Rasimas v. Michigan Department of Mental Health, 714 F.2d 614 (6th Cir.1983). Rasimas unequivocally establishes that once the plaintiff has presented evidence of damages, the defendant has the burden of establishing a failure to properly mitigate damages. Id. at 623-24. To satisfy this burden the defendant must establish that substantially equivalent positions were available and that the plaintiff failed to exercise reasonable care and diligence in seeking those positions. Id. at 624. The City presented no evidence that substantially equivalent positions were available to Meyers and has not, therefore, met its burden of establishing failure to mitigate.

The City has also failed to demonstrate that the damage award is excessive or unsupported by the evidence. The damages present a question of fact subject to review under the clearly erroneous standard. Neyer v. United States, 845 F.2d 641 (6th Cir.1988). An award of damages by the trial court will not be overturned as excessive unless it manifests plain injustice, or is so grossly excessive as to be clearly erroneous. Id. The district court found that the City’s wrongful actions caused Meyers mental anguish, humiliation, and loss of reputation, and awarded $25,000 in compensatory damages. The court found that these damages were caused in part by the substantial unfavorable publicity surrounding Meyers’ constructive discharge. Meyers’ psychological injuries had physical effects: he lost 10 pounds and suffered from insomnia. He also experienced stomach problems for which he was prescribed medication. We find that the district court’s award of compensatory damages is supported by the evidence and is not so grossly excessive as to be clearly erroneous.

For the foregoing reasons we AFFIRM the judgment of the district court.

1 . The Court explains:

To be sure, ''official policy” often refers to formal rules or understandings — often but not always committed to writing — that are intended to, and do, establish fixed plans of action to be followed under similar circumstances consistently and over time.... However, as in Owen [v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980)] and Newport [v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981)], a government frequently chooses a course of action tailored to a particular situation and not intended to control decisions in later situations. If the decision to adopt that particular course of action is properly made by that government’s authorized decision-makers, it surely represents an act of official government "policy” as that term is commonly understood. More importantly, where action is directed by those who establish governmental policy, the municipality is equally responsible whether the action is to be taken only once or to be talten repeatedly. To deny compensation to the victim would therefore be contrary to the fundamental purpose of § 1983. . Id. 475 U.S. at 480-81, 106 S.Ct. at 1299 (footnote omitted) (emphasis added).