Flora McGuire v. City of Sweetwater, Tenn. ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0384n.06
No. 20-6067
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
FLORA JANE MCGUIRE, ) Aug 16, 2021
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellant, )
)
ON APPEAL FROM THE UNITED STATES
v. )
DISTRICT COURT FOR THE EASTERN
)
DISTRICT OF TENNESSEE
CITY OF SWEETWATER, TENNESSEE, )
)
OPINION
Defendant-Appellee. )
BEFORE: STRANCH, BUSH, and READLER, Circuit Judges.
JANE B. STRANCH, Circuit Judge. In early 2018, Flora Jane McGuire, an employee
of the City of Sweetwater, attempted to raise concerns about a proposed rezoning at various public
meetings. She alleges that City officials warned her not to repeat her complaints, tried to prevent
her from speaking at a meeting of the Board of Commissioners, attempted to have her fired, and
ultimately gave her the option to be terminated or to resign with certain benefits. McGuire resigned
and brought this lawsuit against the City for alleged violations of her First Amendment rights and
Tennessee law. The district court granted summary judgment dismissing her § 1983 claim because
McGuire failed to establish that the City officials involved were final policymakers such that the
City could be held liable for their actions. The court dismissed her state law claims without
prejudice. We AFFIRM the judgment of the district court.
No. 20-6067, McGuire v. City of Sweetwater, Tenn.
I. BACKGROUND
A. Factual Background
McGuire was employed by the City of Sweetwater as the Director of two municipal
programs: Sweetwater Valley Citizens for the Arts and Sweetwater Main Street. She was
supervised by Scott Wilson, the appointed Director of the Sweetwater Planning, Development and
Tourism Department (the Department) and liaison between the Department and the City’s
Planning Commission. Wilson, in turn, reported to Sam Moser, an elected member of the City’s
five-member Board of Commissioners. Moser oversees the Department and serves as the Board’s
designated Personnel Commissioner.
According to the City, from May 2017 to May 2018, McGuire was involved in a number of
conflicts with City employees and members of the public. In 2018, for example, McGuire learned
that the City was considering a proposal by the Kirkland family to rezone a tract of land (the Hall
property) in her neighborhood from residential use to commercial use. Wilson, who also worked
as a private real estate agent to supplement his income, was at that time representing the Kirklands
in their attempt to sell a separate piece of property.
McGuire opposed the rezoning and voiced this objection at the January 23, 2018, meeting
of the City’s Planning Commission. Because a quorum was not present, the Commission took no
formal action. After the meeting, McGuire discussed the issue with her neighbors and encouraged
them to attend the next meeting and call the Commissioners. McGuire also used her City email
account to contact Monroe County Planning Director Ruth Hawk during City business hours to
discuss the zoning.
McGuire appeared again at the February 19 meeting of the Planning Commission, at which
Moser (a voting member) and Wilson were present, to repeat her views on the rezoning application.
She also said that Wilson had a conflict of interest because he represented the Kirklands. Because
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Moser was a potential architect for the Kirklands’ project, he recused himself from the vote, and
he and Wilson left the meeting. The Planning Commission voted to recommend approval of the
rezoning to the Board of Commissioners. Wilson eventually withdrew from representing the
Kirklands in the other transaction.
A few days after the Planning Commission vote, Jessica Morgan—the City Recorder and
Human Resource Officer—came to McGuire’s office. According to McGuire, Morgan told her to
“back off” her claims that Wilson had a conflict of interest and that she could be fired for her
comments because it could constitute defamation or insubordination.
McGuire asked Morgan to place her on the agenda for the upcoming March 5 meeting of
the Board of Commissioners. Morgan told McGuire that the Board’s policy required citizens first
to meet with the Department Head and Commissioner relevant to the issue, and then to attend a
workshop with the Board, before they could appear at an actual Board meeting.1
McGuire then met with Morgan, Wilson, and Moser. According to McGuire, Moser told
her at this meeting that the Municipal Technical Advisory Service had told the City that Wilson
had no conflict of interest because he represented the buyers of the Hall property rather than the
sellers. McGuire responded that an attorney she had consulted believed Wilson’s participation
was, in fact, a violation of the City’s Code of Ethics, and, according to McGuire, Wilson “became
irate” and “yelled at [her] so loudly another employee heard it across the hall.” McGuire also says
that she provided other, general reasons for opposing the rezoning, after which Morgan told her
1
McGuire contends in her brief that she “addressed the board several times throughout her career but was never
required to follow this process.” That is not supported by the record. All McGuire stated in the cited portion of her
deposition was that she had previously spoken at Board meetings “for some Main Street things”; she did not say she
was not required to follow the agenda policy. The agenda policy, moreover, applied to citizens seeking to speak at
Board meetings, and nothing in Morgan or McGuire’s testimony suggests that the policy was meant to apply to City
officials or employees who were presenting on their work.
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she had made a good point and said “[t]hat’s what you should say [to the Commission].” Morgan
testified that McGuire had replied “You don’t tell me what I speak about tonight” and pointed her
finger at Morgan.
After this meeting, McGuire attended a Board “workshop,” where she spoke about the
rezoning but did not repeat her allegations that Wilson had a conflict of interest. She also attended
the next Board meeting, on March 5, but did not speak. The Board called a preliminary vote on
the rezoning application and it passed.
The final vote was scheduled for April 2. McGuire did not repeat her opinion on the
substance of the rezoning application. But another citizen, Patricia Richardson, complained that
the City had not provided sufficient advance notice to the public about the proposal, and McGuire
agreed. Moser said he was “offended” at the claim that the Commission had not provided proper
notice.
After the meeting, Morgan suspected McGuire had coordinated with Richardson, and
searched McGuire’s e-mail for confirmation. She learned that Richardson had e-mailed her
proposed comment to McGuire, who had responded with approval and specific feedback. She also
found McGuire’s earlier e-mails to Ruth Hawk. Wilson testified that around the same time, he
was finding it difficult on a personal level to work with McGuire, and was receiving complaints
from other City officials about her conduct and attitude.
According to Wilson, he concluded that McGuire was no longer “suited for the position.”
Because he understood that he did not have authority to fire her, Wilson approached Morgan,
Moser, and John Cleveland, the Sweetwater City Attorney, to determine the next steps. Morgan
and Wilson testified that Cleveland prepared a memo laying out various instances of McGuire’s
alleged failure to fulfill her job responsibilities, and recommending that McGuire be terminated
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No. 20-6067, McGuire v. City of Sweetwater, Tenn.
for cause. McGuire was up for reappointment that July. Morgan contacted each of the
Commissioners individually to ask whether they thought McGuire should be retained and if not,
whether she could offer McGuire the opportunity to resign early but keep her benefits for a few
more months. According to Morgan, each of the Commissioners indicated, either directly or
indirectly, that he intended to vote against continuing McGuire’s employment.
On May 2, 2018, Morgan, Moser, and Wilson met with McGuire and read her the “Internal
Memo” that Cleveland had prepared, which was addressed to the Planning, Development &
Tourism Department Head, Planning Department Commissioner, and City Recorder. McGuire
recalled being offered three options: be terminated immediately; resign immediately but retain her
health insurance for a few months and have her vacation days paid out; or stay on until the end of
the budget year, when the Board would decline to renew her position. Morgan testified that she
told McGuire that “it was the recommendation of the city attorney to terminate her and that [they]
believed the city board was going to vote to terminate her.” Morgan said that she gave McGuire
two options: either resign immediately and keep her health insurance for a period of time, or leave
it “up to the city board,” whose members “had said [it] was their intent” not to continue McGuire’s
employment. Morgan also recalled instructing McGuire to surrender her keys, phone, and iPad,
though McGuire did not mention this in her complaint or deposition. McGuire tendered her
resignation the next day.
B. Procedural History
McGuire filed her complaint on January 8, 2019, followed by an amended complaint on
April 1. She asserted First Amendment prior restraint and retaliation claims under § 1983, as well
as state law claims under the Tennessee Public Protection Act and the Tennessee Public Employees
Political Freedom Act.
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No. 20-6067, McGuire v. City of Sweetwater, Tenn.
The City moved for summary judgment on March 27, 2020 and McGuire cross-moved for
summary judgment the next day. On August 17, the district court denied McGuire’s motion and
granted the City’s motion, dismissing McGuire’s federal claims with prejudice and her state law
claims without prejudice. McGuire has refiled her state law claims in state court, and timely
appealed the dismissal of her federal claims.
II. ANALYSIS
The district court dismissed McGuire’s federal claims because she had failed to show that
Moser, Wilson, Morgan, and Cleveland were final policymakers, as required to hold the City liable
for their actions in connection with McGuire’s termination. On appeal, McGuire argues that
Moser, Morgan and Cleveland were final policymakers with respect to her termination as well as
to a range of other allegedly retaliatory actions by those City officials. In addition, both McGuire
and the City contend they are entitled to summary judgment on the merits of all of McGuire’s
claims.
A. Standard of Review
This court reviews the district court’s grant of summary judgment de novo. Kalich v. AT&T
Mobility, LLC, 679 F.3d 464, 469 (6th Cir. 2012). Summary judgment is appropriate when the
record, viewed in the light most favorable to the nonmoving party, reveals that there is no genuine
issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.
R. Civ. P. 56.
B. Applicable Law
A municipality “cannot be held liable under § 1983 for an injury inflicted solely by its
employees or agents.” Gregory v. Shelby Cnty., 220 F.3d 433, 441 (6th Cir. 2000) (citing Monell
v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). It may be held liable only if the alleged violation
“occurred because of a municipal policy or custom.” Jones v. Clark Cnty., 959 F.3d 748, 761 (6th
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Cir. 2020) (quoting Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005)). One way
to show such a policy is by demonstrating that the relevant actions were taken by officials with
final policymaking authority in that specific area. Id. Whether a particular official or body is a
final policymaker is a question of law to be resolved by the court. Jett v. Dallas Indep. Sch. Dist.,
491 U.S. 701, 737 (1989).
Ordinarily, state and local law determine whether a municipal official has final
policymaking authority, Jones, 959 F.3d at 762 (citing City of St. Louis v. Praprotnik, 485 U.S.
112, 123 (1988) (plurality opinion)), but the court may also look to “custom or usage having the
force of law,” Jett, 491 U.S. at 737 (quoting Praprotnik, 485 U.S. at 124 n.1)). Final policymaking
authority may be delegated. Miller v. Calhoun Cnty., 408 F.3d 803, 814 (6th Cir. 2005) (citing
Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)). However, “mere authority to exercise
discretion while performing particular functions does not make a municipal employee a final
policymaker unless the official’s decisions are final and unreviewable and are not constrained by
the official policies of superior officials.” Id. (quoting Feliciano v. City of Cleveland, 988 F.2d
649, 655 (6th Cir. 1993)); see also Praprotnik, 485 U.S. at 126. Where a final policymaker
affirmatively ratifies the action of a subordinate, however, the municipality can be held liable.
Feliciano, 988 F.2d at 656 (citing Praprotnik, 485 U.S. at 127).
C. McGuire’s Claims
Municipal law is the starting point in determining the identity of the final policymakers
with respect to McGuire’s claim of constructive discharge. See Jones, 959 F.3d at 761. The Board
of Commissioners, together with the Mayor, constitute the governing legislative body of the City.
City Charter Art. IV, § 1. That body acts by ordinance or resolution, passed by “an affirmative
vote of a majority of the board present and voting”; the Mayor or Vice-Mayor (or other designated
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member of the Board) serves as presiding officer, and has no vote except in the event of a tie.2 Id.
at Art. V §§ 3, 4.
The Board has the authority to create offices and positions of employment “as deemed
necessary for the efficient operation of the city,” and all employees occupying these positions
“serve at the will and pleasure of the board.” City Charter, Art. VII, § 3. The Charter directs the
Board to “adopt personnel rules and regulations to govern the hiring, discipline and dismissal of
employees” and to “define the other practices and procedures as necessary to the administration of
a city personnel system.” Id. “In adopting personnel rules and regulations, the board may delegate
all or any part of its personnel authority.” Id.
Pursuant to the Charter, the Board enacted the Sweetwater Municipal Code. The Municipal
Code creates the office of the City Attorney, and grants its holder the power to: “draft and/or
review and revise all such ordinances and resolutions as the mayor or board may request”; “give
advice and, upon request, prepare written opinions on all legal questions submitted to him by the
board, the mayor, or any commissioner when such questions officially concern or relate to the
city”; and represent the city in the courts and before administrative and legislative bodies.
Sweetwater Mun. Code Ch. 5 (footnote omitted).
Chapter 2 of the Code concerns the City’s personnel system. Sweetwater Mun. Code. § 4-
201. It provides that one of the elected Commissioners must be designated the “Personnel
commissioner,” and that the city recorder must serve as the “Human resource officer” or delegate
that function to an employee. Id. § 4-202. The Personnel Commissioner is “responsible for
effective personnel administration.” Id. § 4-204. The Human Resource Officer “administer[s] the
personnel program.” Id. Together, the Personnel Commissioner and the Human Resource Officer
2
We have capitalized the titles of the City officials and entities whose actions form the basis of McGuire’s claim.
Where they appear in quoted material, however, we have preserved the original formatting and capitalization.
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are charged with preparing proposed personnel rules governing “[d]isciplinary action, demotion,
suspension and separation from the service of employees by resignation, layoff, separation,
dismissal and for incapacity to perform required duties.” Id. § 4-205(2), (2)(g). These rules are
then to be submitted to the Board of Commissioners and Mayor for “adoption . . . by resolution.”
Id. § 4-205(1).
These provisions make clear that it is the Board of Commissioners and the Mayor who
have final policymaking authority over terminations. The City Attorney has no such authority; he
or she merely renders advice and opinions and offers proposed legislation for final approval or
action by the Board of Commissioners and the Mayor. Sweetwater Mun. Code §§ 1-502, 1-503.
Similarly, the Municipal Code delegates to the Personnel Commissioner and Human Resource
Officer the authority to propose rules and regulations for the governing body to adopt, but it is the
Board that retains the ultimate power to approve or reject these proposals. So, the policymaking
authority of the Personnel Commissioner and Human Resource Officer—Moser and Morgan—is
reviewable by the Board and therefore nonfinal. Miller, 408 F.3d at 814.
McGuire points to the City’s Employee Handbook (adopted by the Board by resolution in
2006 and amended over the years, as evidence that the City has delegated its policymaking
authority over personnel matters. The Handbook provides that it is to be “administered as part of
the personnel authority of the Mayor and Board of Commissioners as provided in the City Charter
as a delegation of personnel authority in conformity with the ordinance establishing a personnel
system.” Empl. Hbk. § 1D. The Handbook further explains that “[p]ursuant to the City Charter,
the Mayor and Board of Commissioners has the authority to appoint, promote, demote, transfer,
suspend and remove all officers and employees of the City. The Mayor and Board of
Commissioners has, in limited fashion, delegated portions of that personnel authority as set out in
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the Personnel Ordinance.” Empl. Hbk. § 3I. Neither of these statements constitutes an explicit
“delegation” of any specific authority, such as the authority to terminate employees. Instead, they
simply provide that certain authority has been delegated “as set out in” the Personnel Ordinance,
which, as discussed, grants the Personnel Commissioner and Human Resource Officer the
discretion to “administer” the personnel program and propose rules and regulations for review of
the Board. That is not the same as final, unreviewable decisionmaking or policymaking authority.
See Miller, 408 F.3d at 814. Notably, the Handbook specifically affords Department Heads and
Commissioners the independent authority to suspend employees for up to three days at a time (and
those decisions are not grievable to the Board); it does not include such language with respect to
firing employees. Empl. Hbk. § VIIIB, H, I.
Moser testified that “[f]or anyone to be terminated within the city, it must be brought before
the city board and voted upon.” Both Morgan and Wilson confirmed this. McGuire has offered
no evidence to dispute these accounts of the practice of the City or local “custom.” Jett, 491 U.S.
at 737. In fact, she acknowledges that Morgan gave her the option of remaining employed until
the next Board meeting, when the Commissioners would vote on whether to continue her
employment.
The evidence in the record and the governing law, therefore, establish that the acts and
decisions of Morgan, Moser, Wilson, and Cleveland with respect to their demand that McGuire
resign or be terminated were not “final and unreviewable.” Miller, 408 F.3d at 814 (quoting
Feliciano, 988 F.2d at 655) (finding that shift commander who had “authority to make limited
decisions concerning inmate medical care during her shift” was not a final policymaker where
there was no evidence that her decisions were not subject to review). The City cannot be held
liable for their involvement in McGuire’s alleged constructive discharge. And McGuire made
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clear at oral argument that she is not pursuing a theory of liability based on ratification by a final
policymaker.
Our decision today does not insulate municipal governments from all liability. It does not
mean, as McGuire contends, that a city like Sweetwater is only liable if an unconstitutional policy
is presented to the Board and formally adopted. First, it is undisputed that McGuire knew she had
the option of obtaining a final, unreviewable decision from the Board of Commissioners without
sacrificing her health insurance or wages and chose not to do so. Second, it is well settled that a
formal policy of constitutional violation is not required for municipal liability. Liability may arise
through “(1) the municipality’s legislative enactments or official agency policies; (2) actions taken
by officials with final decision-making authority; (3) a policy of inadequate training or supervision;
or (4) a custom of tolerance or acquiescence of federal violations.” Jones, 959 F.3d at 761 (quoting
Thomas, 398 F.3d at 429 (6th Cir. 2005)). Indeed, the Supreme Court has repeatedly invoked this
last category as a protective against “egregious attempts by local governments to insulate
themselves from liability for unconstitutional policies.” McMillian v. Monroe Cnty., 520 U.S. 781,
796 (1997) (quoting Praprotnik, 485 U.S. at 127).
McGuire also argues that the district court ignored a host of other retaliatory acts by Moser,
Wilson, Morgan, and Cleveland, such as Morgan’s direction to McGuire to “stop repeating her
belief as to Wilson’s conduct lest she be fired and sued” or the reading of the Cleveland Memo to
McGuire by Morgan and Moser without giving her the opportunity to respond. But these
individuals did not have final policymaking authority over a decision to terminate—only the Board
did—and the City cannot be held liable for these actions.
Next, McGuire points to Morgan and Moser’s “conditioning McGuire’s continued health
insurance on her submitting a resignation letter,” but there is no evidence in the record to suggest
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they did this. McGuire testified that Morgan offered to “keep [her] on until the end of the budget
year and let the Main Street program elapse, just not renew the position.” She did not claim that
anyone told her if she accepted that option, her insurance would be revoked.
McGuire also contends that “Moser’s and Morgan’s order that [McGuire] immediately
surrender her keys, computer, and phone” before she was formally disciplined was an adverse
employment action separate from and independent of her termination. But this is a new claim
raised for the first time on appeal. McGuire’s Amended Complaint centered exclusively on her
constructive discharge and Morgan’s earlier comments to “back off” Wilson; she did not allege
any order to surrender her equipment. Nor did McGuire mention it at her deposition when asked
about what happened at the May 2 meeting and the next day, when she tendered her resignation.
And McGuire did not invoke it as a separate basis for liability in her motion for summary judgment,
her reply in support of that motion, or her opposition to the City’s motion for summary judgment.
She mentioned the incident only once below, in her response to the City’s motion, where she
characterized it as part of Morgan and Moser’s “threat[s]” to fire her. We therefore decline to
consider it as a separate basis for liability. See, e.g., Tucker v. Union of Needletrades, Indus. &
Textile Emps., 407 F.3d 784, 787–89 (6th Cir. 2005); Priddy v. Edelman, 883 F.2d 438, 446 (6th
Cir. 1989) (“A party is not entitled to wait until the discovery cutoff date has passed and a motion
for summary judgment has been filed on the basis of claims asserted in the original complaint
before introducing entirely different legal theories . . . .” ).
Finally, McGuire claims that Morgan was the final policymaker as to the agenda policy,
which she used “to dissuade and intimidate McGuire from speaking to the full board about
Wilson’s conflict.” McGuire contends that Morgan “controlled” the Board’s meeting agenda, that
the meeting and workshop requirement were never formally adopted by the Board, and that
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Morgan used the agenda policy selectively against McGuire to dissuade her from airing her view
that Wilson had a conflict of interest, while permitting other citizens to speak freely at meetings.
The City Charter provides that the Mayor presides over meetings of the Board, and is to
conduct them in accordance with “the most current edition of Robert’s Rules of Order where not
inconsistent with [the] charter.” City Charter Art. V, § 3. Board meetings are to be open to the
public, but the Charter does not afford citizens a specific right to speak. Id. at Art. V. The 2000
edition of Robert’s Rules of Order—the version most current at the time of McGuire’s
allegations—explains that at public sessions of governing bodies, “non-members” “ordinarily have
no right to participate.” General Henry M. Robert, Robert’s Rules of Order 93–94 (10th ed. 2000).
The body “may invite non-members to express their views, but this is done under the control of
the presiding officer subject to any relevant rules adopted by the body.” Id. Because these
procedural rules are incorporated by reference into the City Charter, they constitute the law of the
City. They establish that it was the Mayor, or presiding officer in his stead, who had final
policymaking authority over the agenda of Board meetings and a citizen’s ability to speak at such
a meeting.
Local custom—the actual practice of the City—supports this conclusion. Morgan testified
that she prepared and implemented the agenda policy at the behest of the Board in 2011. According
to her, “[t]he board told me exactly what they wanted the channel to be, and I typed it for them . . . I
had no creative input in this.” Moser similarly testified that the agenda policy “was formed by
the . . . city board.” Morgan explained that citizens are typically “not allowed to speak at the
workshop without following the policy,” but that “the mayor serves as chairman” of Board
meetings, and under Robert’s Rules of Order “can always open the floor if he chooses to.” She
further testified that “[i]f the chairman opens the floor to them, they can speak during the
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meeting . . . . [But] unless there’s a public hearing being opened, the public cannot make
comments, even if there’s an item for action, unless the chairman gives them permission to.”
McGuire has not offered any evidence to contradict local law and custom or Morgan’s testimony.
Accordingly, the City cannot be held liable for a claim that a constitutional violation resulted from
alleged actions taken by an official without final policymaking authority in that area.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
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