Municipal corporations: proving improper motives of multiple member policymakers.

• Author: Melick, Jeffrey C.

For liability to attach for discriminatory acts, plaintiffs should be required to prove that a majority board or council members acted with bad intentions

MUNICIPAL corporations and other governmental entities are among the largest employers in the United States. Public employees, like their private counterparts, may bring claims against municipal corporation employers under Title VII of the Civil Rights Act of 1964 (42 U.S.C. [sections] 2000e et seq.), the Equal Pay Act of 1963 (29 U.S.C. [sections] 206(d)), the Age Discrimination in Employment Act (ADEA) (29 U.S.C. [subsections] 621-634), the Americans with Disabilities Act (ADA) (42 U.S.C. [subsections] 12101-12213), as well as various state employment discrimination statutes. Federal discrimination statutes, which provide a comprehensive remedial scheme, may be the exclusive remedies for discrimination claims.(1)

As a practical matter, most discrimination claims begin with the employee complaining about some type of improper discrimination. The employee then becomes a plaintiff, suing the municipal employer and claiming a violation of the specific federal discrimination statute. As a precaution, the plaintiff also may allege that the adverse employment action was taken in retaliation for speaking out about the alleged discrimination. This alleged retaliation might constitute a violation of the First Amendment.(2) Much the same as a 14th Amendment equal protection or due process violation, the First Amendment violation is not pre-empted by Title VII or any other of the federal statutes.(3)

The First Amendment right of action is provided by 42 U.S.C. [sections] 1983, which states:

Any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any state, shall subject, or cause to be subjected, any person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, sued in equity, or other proper proceeding for redress. [Emphasis added.] Section 1983 does not actually create substantive rights of its own, but rather it provides a remedy for the deprivation of rights created elsewhere in the Constitution or federal laws.(4) The circumstances under which a municipal employee may bring an action for discrimination under Section 1983 has been evolving over the past 20 years, and it is not yet well settled.

One of the most unsettled areas is that in which municipal employees believe they have been discriminated against in a fashion that violates a specific federal statute and a particular constitutional provision by an act of a multi-member municipal board or council. The confusion occurs in cases in which plaintiffs can establish that some of the board or council members acted for discriminatory purposes, while others had legitimate reasons.

This article (1) reviews the operation of Section 1983 as it relates to municipal employers and discriminatory actions that violate a specific federal statute and other federally protected rights, (2) outlines the issues in cases in which the final municipal policymaker is a multi-member board, and (3) suggests methods defense attorneys should consider when defending municipal employers in multi-member board cases.

OPERATION OF SECTION 1983

Section 1983 subjects to liability any "person" who deprives other persons of their constitutional rights. The U.S. Supreme Court originally held in 1961 in Monroe v. Pape that municipalities were not persons within the meaning of the statute.(5) But in 1978 in the landmark case of Monell v. New York City Department of Social Services, the Court reversed itself and ruled that local governments could be sued under Section 1983.(6) A Section 1983 plaintiff may seek monetary damages or declaratory or injunctive relief, but punitive damages may not be assessed.(7) Suit may be brought in either state or federal court.(8) To prevail on a Section 1983 claim, municipal employees must prove that they were deprived of a right afforded by the Constitution or laws of the United States, and that the defendant acted under color of state law.(9)

There are two ways in which a municipality may face Section 1983 liability: (1) acts committed pursuant to official municipal policy or custom, or (2) acts committed by officials with final decision-making authority, whose actions reflect the municipality policymakers' deliberate indifference to the rights of citizens.(10)

1. Municipal Policy or Custom

   A municipality may be liable for the execution of a policy or custom that violated an employee's rights under the Constitution or federal laws.(11) The policy or custom could have been made by either the municipality's lawmakers or by its employees with final policy-making authority "whose edicts or acts may fairly be said to represent official policy," as stated by the Monell Court. Official policies may be comprised of formal rules or understandings, which may or may not be committed to writing, and which establish fixed courses of action to be followed under similar circumstances.(12) For example, Monell involved a written rule requiring employees to take unpaid maternity leaves before they were medically necessary. Under Monell, the action that gives rise to a Section 1983 claim is that which implements or executes a written policy statement, ordinance or regulation, as well as unwritten decisions officially adopted by decision-makers with final authority to establish municipal policy.

   Municipal liability also may attach, according to Monell, for deprivations of federal rights caused by a governmental "custom," even though the officials with decision-making authority had not formally approved the custom. That custom, however, cannot simply be a practice reflecting long-standing social habits, but rather must be "so permanent and widespread as to have the force of law."(13) For example, a municipality regularly and persistently, but not pursuant to any officially adopted mandate, may allow male employees to use vacation time for personal reasons and refuse to allow female employees the same right. This approach may give rise to a Section 1983 claim, depending on the pervasiveness of the custom, the length of time the custom has been followed by the municipality and the degree to which it has been followed throughout the municipality.(14)

   The Supreme Court explained the significance of the "official policy" requirement in Pembaur v. City of Cincinnati:

   The "official policy" requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby makes clear that municipal liability is limited to action for which the municipality is actually responsible. Monell reasoned that recovery from a municipality is limited to acts that are, properly speaking, acts "of the municipality"--that is, acts which the...