Daniel Waters v. City of Chicago ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-1583 & 08-2493
D ANIEL B. W ATERS,
Plaintiff-Appellee,
v.
C ITY OF C HICAGO,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 4762—Milton I. Shadur, Judge.
A RGUED F EBRUARY 27, 2009—D ECIDED S EPTEMBER 2, 2009
Before M ANION, R OVNER, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Daniel B. Waters worked as a
painter for the City of Chicago (City) from 1994 until
his termination in 2000. In 2002, he sued the City and
four of his superiors in their individual and official capaci-
ties under 42 U.S.C. § 1983, alleging retaliation in viola-
tion of his First Amendment rights. This appeal requires
us to decide whether the district court erred in denying
the City’s motion for judgment as a matter of law and
2 Nos. 08-1583 & 08-2493
whether it erred in awarding Waters attorneys’ fees and
costs. We conclude that the district court should have
granted the motion for judgment as a matter of law, and
we reverse its judgments.
I. Background
Daniel Waters was employed as a painter with the
City’s Department of Transportation (CDOT), Bureau of
Bridges from July 1994 until August 2000. (He previously
had worked for the City as a painter from 1990 to 1991.)
In 1994 Waters’ general foreman, Kirk Woelfe, asked him
to campaign in the Tenth Ward. Waters did so. Then in
early 2000, he was again asked to campaign. This time
he refused. Waters alleged that his refusal constituted an
exercise of his free speech and freedom of association
rights protected by the First Amendment.
Waters also alleged that he exercised his freedom of
speech and association rights by contacting the media
on two occasions while employed with CDOT. First, in
1998 or 1999, he contacted Walter Jacobson from the
local Fox TV station about a bridge Waters believed was
in disrepair and a danger to the public. Waters took a
reporter and photographer to the bridge to look at the
workmanship. Afterwards Stan-Lee Kaderbek, the
deputy commissioner of CDOT’s Bureau of Bridges, and
Mark Fornaciari, general foreman, general trades under
Kaderbek, came to the job site after midnight. According
to Waters, it was very unusual for them to be at the job
site. They confronted Waters. Kaderbek looked him
straight in the eye and said, “Hi Dan,” in a very pro-
Nos. 08-1583 & 08-2493 3
nounced manner. After this occurrence Waters noticed
changes in his job—he was given assignments far away
from home, his working conditions were poor, and he
was subjected to verbal abuse and what he perceived
as efforts to provoke him.
Waters contacted the media a second time in late
March 2000 when he contacted John Kass from the
Chicago Tribune. Waters believed the City was doing
expensive improvements to the property where its iron
shop was located to benefit the company that owned the
property. He took Kass to the iron shop and showed him
around. Art Korzniewski, an assistant to Kaderbek,
observed Waters doing so. Later that day Dean Maltes,
acting foreman, told Waters, “Boy, you are in trouble
now.” And Michael Clatch, one of five foremen for the
painters, testified that after Kass’s visit to the iron shop,
Woelfe told him, “Dan’s in trouble now.” Clatch also
testified that nothing happened in the Bureau of
Bridges without Kaderbek’s input.
At that time, Waters had been assigned to the iron shop
approximately one and one-half to two years. However,
just a few days after Kass’s visit and after Waters had
refused to campaign in the Tenth Ward, Waters was
transferred out of the iron shop. He was transferred to
the Springfield Pumping Station where Anthony Tripoli,
acting foreman, became his supervisor. Waters had
worked with Tripoli six times before. Waters described
their working relationship as unpleasant. He claimed
that Tripoli tried to provoke him, said mean things to
him, and gave him difficult jobs. Waters explained that
4 Nos. 08-1583 & 08-2493
Tripoli knew that Waters had pain in his knees and gave
him assignments where he would have to paint on his
knees.
One of Waters’ coworkers testified that within a week of
Kass’s visit, he heard Fornaciari tell a general foreman,
“We’re going to fire that crybaby son of a bitch.” However,
Waters’ name was not mentioned. Clatch testified that
Tripoli told him that Kaderbek had promised to
make Tripoli a permanent foreman if Tripoli got rid of
Waters. This didn’t pan out for Tripoli. He never became
a permanent foreman. In fact, after Waters’ termination,
Tripoli’s “acting foreman” title was taken away from him.
On April 5, 2000, only days after Waters’ reassignment
to the pumping station, Waters and Tripoli were
involved in an incident. Waters confronted Tripoli and
three other painters who were in the break room, even
though the official break time was over. He questioned
why they were still there and whether the break rules
applied to him only. There was some yelling and, at one
point, Waters dropped onto a bench. Because of his size,
he pushed up against Jimmy Stratton, one of the other
painters there. As a result of this incident, Tripoli filed
a violence in the workplace incident report against
Waters, claiming that he used direct or indirect
verbal threats, physical abuse or the use of force, and
threatening, intimidating, coercive behavior. The three
other painters’ versions of what happened seemed to
corroborate Tripoli’s account. Waters claimed that he
did not touch or verbally intimidate anyone during the
argument.
Nos. 08-1583 & 08-2493 5
A pre-disciplinary hearing was set for May 15, 2000.
Waters didn’t attend—he called in sick that day because
he wasn’t feeling well and his wife was having labor
contractions and wanted to go to the hospital. The
hearing was rescheduled for May 17. It was not
uncommon for an employee to avoid a pre-disciplinary
hearing; such hearings were regularly rescheduled due
to an employee’s absence.
However, on the morning of the 15th, Waters telephoned
Tripoli to ask him if he had a criminal record. Waters
had heard from other painters that Tripoli had a record.
Waters wanted to confirm if Tripoli did in an effort to
bolster his own credibility as compared to Tripoli’s regard-
ing the April 5 incident. The afternoon of the 15th while
on his way to the hospital, Waters stopped at the
pumping station to obtain Tripoli’s license plate number
to give to a private investigator and to encourage one of
the witnesses of the April 5 incident to “back off his
charges or at least tell the truth.” Waters talked with some
coworkers outside the door of the pumping station, but
didn’t go in. However, Tripoli came to the door, yelled
at Waters, and told him to leave. Someone called the
police. When they arrived, Waters was detained for a
brief period. He was not arrested and no charges were
filed against him.
As a result of the morning call and the afternoon inci-
dent, Tripoli made two more violence in the workplace
incident reports against Waters. Tripoli claimed that the
phone call was threatening. He alleged that Waters made
threatening remarks in the parking lot to Tripoli and
6 Nos. 08-1583 & 08-2493
Stratton (who had been involved in the April 5 incident).
Tripoli also alleged that Waters was intimidating
because of his size. Stratton likewise reported that
Waters had been intimidating and threatening.
Kaderbek had had enough of Waters. Later that day, on
May 15, Kaderbek wrote a memorandum to Cheri Heramb,
CDOT’s deputy commissioner of personnel, and Florence
Hooker, director of administration. The memo requested
that charges be drafted to show cause for Waters’ termina-
tion based on a continuing pattern of verbal and physical
threats. Kaderbek copied the memo to CDOT Commis-
sioner Judith Rice. Kaderbek was responsible for dis-
cipline within the Bureau of Bridges but did not have
the authority to terminate an employee. He could only
recommend termination; Commissioner Rice had the
authority to terminate.
Donald O’Malley, the CDOT violence in the workplace
liaison between the CDOT and the Department of Person-
nel, emailed Kaderbek that it was premature to request
that charges be drafted regarding the May 15 incidents.
Indeed, it was contrary to the City’s disciplinary proce-
dures. O’Malley advised Kaderbek that they needed to
contact Waters and have him fill out an attachment to
the incident reports or interview him to get his account
of the May 15 events.
Waters completed an attachment to both May 15
incident reports, providing his account of what had
happened. Waters said that his telephone call was non-
threatening and that he was simply inquiring whether
Tripoli had a criminal background. Regarding the events
Nos. 08-1583 & 08-2493 7
in the parking lot, Waters claimed that Tripoli and
Stratton had threatened him and that Tripoli prevented
him from leaving the parking lot. Waters also claimed
that Tripoli had intimidated and threatened to get him
fired. Waters denied that he had ever threatened Tripoli.
O’Malley reviewed the reports and attachments com-
pleted by the participants and witnesses and, on June 5,
2000, he completed his own report on the two May 15
incidents.1 His responsibility was to determine whether
the allegations in the incident report and attachments, if
believed, fell within the definition of violence in the
workplace. O’Malley concluded that in both incidents
Waters was attempting to intimidate Tripoli and other
participants. O’Malley also found that on May 15 Waters
was attempting to retaliate against Tripoli for filing the
April 5 incident report. O’Malley submitted his report
to Kaderbek.
On June 23, 2000, Kaderbek issued a memorandum
similar to his May 15 memo, again requesting that
charges be drafted showing cause for Waters’ termination.
The procedures for addressing termination recommenda-
tions apparently were followed in Waters’ case. The City’s
1
O’Malley also reviewed the incident report and attachments
for the April 5 break room incident and completed a report
dated May 3, 2000. He concluded that the incident involved
a verbal and physical confrontation in which Waters made
direct and indirect threats to the other painters and Tripoli
and that Waters bumped into Stratton in an intimidating
manner. O’Malley submitted this report to Kaderbek as well.
8 Nos. 08-1583 & 08-2493
Law Department drafted a statement of charges based
on the reports without conducting any further investiga-
tion, the Commissioner signed off on them, the charges
were given to Waters, he responded in writing, and a
hearing was scheduled to transmit the statement of
charges and explain the appeal process. Waters did not
attend this predisciplinary hearing because he was
away visiting family. Commissioner Rice made the deci-
sion to terminate Waters. Waters appealed to the City’s
Personnel Board which held a hearing at which Waters
and others testified. The Board denied his appeal.
Waters sued the City of Chicago, Kaderbek, Fornaciari,
Tripoli, and another employee under § 1983, alleging
retaliation against him for exercising his First Amend-
ment rights. He also asserted a state law intentional
infliction of emotional distress claim. By agreement of the
parties the individual defendants were dismissed. The
City moved for summary judgment, arguing in part that
Waters had no evidence to establish municipal liability.
In particular, the City contended that the decision-
makers were not final policymakers. The district court
granted summary judgment on the state law claim and
denied it on the § 1983 claim before the City had an
opportunity to file a reply. The district court subsequently
allowed the City to file a reply and, nonetheless,
reaffirmed its denial of summary judgment as to the
claim under § 1983. The court concluded that Kaderbek’s
retaliatory motive would have poisoned the final
decision to terminate Waters and that the City could be
held liable even if the ultimate decisionmaker was “pure
as driven snow.”
Nos. 08-1583 & 08-2493 9
The case was tried to a jury. At the close of Waters’ case,
the City moved for judgment as a matter of law under
Fed. R. Civ. P. 50 based, in part, on the lack of evidence
establishing municipal liability. The district court
deferred ruling and allowed the case to go to the jury.
The jury found in favor of Waters and awarded him
compensatory damages of $225,000. The district court
denied the City’s Rule 50 motion and entered judgment
for Waters in accordance with the jury’s verdict. Thereaf-
ter, the City renewed its motion for judgment as a
matter of law under Fed. R. Civ. P. 50(b) and, in the
alternative, for a new trial under Fed. R. Civ. P. 59. The
motions were denied. Following a bench trial on equitable
relief, the district court awarded Waters back pay, front
pay and lost pension benefits, totaling more than
$1 million. Final judgment was entered and the City
appealed. The court subsequently awarded Waters at-
torneys’ fees and costs under § 1988. The City appealed
that decision as well. We consolidated the two appeals.
II. Analysis
The City appeals the denial of its Rule 50 motion for
judgment as a matter of law, contending that Waters
presented insufficient evidence to establish that the City
may be held liable under § 1983. We review de novo the
district court’s denial of the City’s motion. Naeem v.
McKesson Drug Co., 444 F.3d 593, 605 (7th Cir. 2006). In
doing so, we view the evidence presented in the light
most favorable to Waters and draw all reasonable infer-
10 Nos. 08-1583 & 08-2493
ences in his favor. Id. We will reverse only if no rea-
sonable juror could have found in favor of Waters. See id.
We conclude that the district court erred in denying the
City’s motion for judgment as a matter of law because
Waters presented no evidence that a final policymaker
caused his alleged constitutional deprivation. The
evidence at trial established that Commissioner Rice
was the final decisionmaker for purposes of terminating
CDOT employees and that she made the decision to
terminate Waters’ employment. However, she was not a
final policymaker for the City with respect to employ-
ment policy. Nor did the evidence support a finding
that Rice harbored any discriminatory animus toward
Waters.
A municipality may be held liable for a constitutional
deprivation under Monell v. Dep’t of Social Servs., 436 U.S.
658 (1978). To establish municipal liability under § 1983,
however, a plaintiff must present sufficient evidence
to show that the constitutional violation resulted from a
municipal policy, custom, or practice. Monell, 436 U.S.
at 694. This requirement “distinguish[es] acts of the
municipality from acts of employees of the municipality,
and thereby make[s] clear that municipal liability is
limited to action for which the municipality is actually
responsible.” Estate of Sims ex rel. Sims v. County of Bureau,
506 F.3d 509, 515 (7th Cir. 2007) (quoting Pembaur v. City
of Cincinnati, 475 U.S. 469, 479 (1986)) (emphasis in Estate
of Sims). “Misbehaving employees are responsible
for their own conduct; units of local government are
responsible only for their policies rather than miscon-
duct by their workers.” Id. (quotations omitted).
Nos. 08-1583 & 08-2493 11
A plaintiff may establish municipal liability by showing
“(1) an express policy that causes a constitutional depriva-
tion when enforced; (2) a widespread practice that is
so permanent and well-settled that it constitutes a
custom or practice; or (3) an allegation that the constitu-
tional injury was caused by a person with final
policymaking authority.” Id. Waters did not offer any
evidence of an express policy or a widespread practice
at trial and does not attempt to establish the City’s
liability under either of those avenues on appeal. There-
fore, to establish municipal liability, he was required to
present evidence that his constitutional injury was
caused by an individual with final policymaking
authority with respect to the subject matter in question.
See Valentino v. Vill. of S. Chi. Heights, No. 06-3882, 2009
WL 2253406, at *7 (7th Cir. July 30, 2009); Campion, Barrow
& Assocs. v. City of Springfield, Ill., 559 F.3d 765, 769 (7th
Cir. 2009).
A. Final Policymaker
Waters asserts that the City is subject to § 1983 liability
because Commissioner Rice had final policymaking
authority for the City for employment matters. State or
local law determines whether a person has policymaking
authority for purposes of § 1983. Campion, Barrow & Assocs.,
559 F.3d at 769. The Chicago City Council is the City’s
legislative body with the authority to adopt rules
regarding employment policy. The City Council has
delegated the authority to promulgate personnel rules to
the Commissioner of Human Resources. Chi., Ill. Municipal
12 Nos. 08-1583 & 08-2493
Code § 2-74-050. As a result, both the City Council and
Commissioner of Human Resources may be considered
final policymakers for the City in the area of employment.
The Commissioner of Human Resources did exercise
his authority and promulgated the City’s Personnel
Rules. Waters does not dispute any of these points.
Instead, he asserts that the Personnel Rules delegate
rule making authority over employment matters to de-
partment heads.
An executive official may have policymaking authority
by express delegation. See Auriemma v. Rice, 957 F.2d 397,
399 (7th Cir. 1992). In asserting that the Personnel Rules
delegated policymaking authority to department heads,
Waters points to one subsection in the rules, namely Rule
XXI—Personnel Administration—Relationship to City
Departments, Section 1—Responsibility of Heads of
Departments for Personnel Administration. That section
states: “The principal responsibilities of each department
head for personnel administration include: . . . (b) The
development and administration of departmental work
rules.” Thus, Waters equates “departmental work rules”
with “personnel rules.” He makes this leap by relying
on another Personnel Rule, Rule XVIIIA, which concerns
disciplinary actions for non-career service employees.
That rule states that in dealing with non-career service
employees, supervisors may utilize the “work rules”
applicable to career service employees set forth in
Section 1 of Rule XVIII as guidelines.
Rule XVIII, which immediately precedes Rule XVIIIA in
the Personnel Rules, is entitled, “Disciplinary Actions
Nos. 08-1583 & 08-2493 13
and Procedures for Career Service Employees.” (Waters
was a career service employee.) Rule XVIII identifies 55
different types of conduct that may result in disciplinary
action against a career service employee. Included in this
lengthy list is “[a]ny act of violence in the workplace
or violation of the City’s Violence in the Workplace
Policy”—the very rule violation upon which Waters’
termination was based. Rule XVIII also sets forth the
different types of disciplinary actions that may be
imposed as well as hearing and progressive disciplinary
procedures to be followed. Section 5 of the rule estab-
lishes the procedure to be followed in the case of ter-
mination, demotion, or suspension over thirty days.
We are not persuaded that “departmental work rules” as
used in Section 1 of Rule XXI has the same meaning as
“personnel rules.” The City’s Personnel Rules is a sixty-
three page document which governs both career and non-
career service employees. The Rules address a multitude
of personnel matters, including position classifications,
compensation, leaves of absences, performance evalua-
tions, a drug and alcohol testing policy, personnel
records, and sick leave, just to name a few. Thus, the
Personnel Rules cover a comprehensive array of
personnel and employment matters for the City. In con-
trast, Waters relies on a snippet within this comprehen-
sive set of rules. That subsection expressly governs
“personnel administration,” not personnel or employment
policy. As we have said before: “The authority . . . to set
policy—i.e., to adopt rules for the conduct of govern-
ment—distinguishes a ‘final policymaker,’ whose
decisions may subject a municipality to § 1983 liability,
14 Nos. 08-1583 & 08-2493
from an official who merely possesses ‘authority to imple-
ment pre-existing rules.’ ” Argyropoulos v. City of Alton,
539 F.3d 734, 740 (7th Cir. 2008) (citations omitted) (em-
phasis in Argyropoulos). Rule XXI, Section 1’s title and text
indicate that it grants department heads the authority
to implement the existing personnel policy; the rule
does not grant department heads the authority to set
personnel policy for the City. That policy is already
embodied in the Personnel Rules themselves.
The other provisions in Section 1 of Rule XXI support
this view. In addition to departmental work rules, the
provisions address a department head’s responsibility
for administration of, inter alia, evaluation of the perfor-
mance of employees, development and implementation
of training programs, and maintaining personnel re-
cords. These are all areas specifically covered by other
Personnel Rules. See Rule XIV—Performance Evaluations;
Rule XV—Training and Career Development; Rule XXII—
Personnel Records. Similarly, department heads are
given the responsibility to initiate personnel actions for
employees, including disciplinary actions. Rule XXI,
Section 1(c). As stated, disciplinary actions and applicable
procedures are explicitly covered in Rules XVIII and
XVIIIA. Rule XXI simply makes department heads respon-
sible for administering the policies embodied in those
rules. In particular, the Rules cover the subject of an
employee’s termination and the procedures to be
followed in the case of termination.
“When an official’s discretionary decisions are con-
strained by policies not of that official’s making, those
Nos. 08-1583 & 08-2493 15
policies . . . are the act of the municipality.” City of St. Louis
v. Praprotnik, 485 U.S. 112, 127 (1988). A reading of the
Personnel Rules reveals that a department head’s
authority and responsibility to initiate disciplinary action
against an employee is constrained by Rule XVIII. That
rule embodies the policy for the types of conduct for
which disciplinary action should be taken, subject to the
department head’s discretion to apply the policy in a
given case. See Personnel Rule XVIII, Section 1 (“The
following conduct . . . will result in disciplinary action
which may include discharge unless the employer, taking
all circumstances into account, deems it to be excus-
able.”). Similarly, “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.” Praprotnik, 485 U.S. at 127. Rule XVIII explicitly
states that a decision to discharge a career service em-
ployee is “subject to appeal to the Personnel Board” and
that “[n]o permanent employee in the Career Service
may be discharged . . . unless the statement of charges and
any matters in support are first reviewed by the Depart-
ments of Law and Personnel.” Personnel Rule XVIII,
Section 5. The Personnel Rules therefore establish that
the termination decision is subject to review by the Law
and Personnel Departments. The Commissioner of
Human Resources did not delegate the authority to
develop employment policy to department heads.
While Commissioner Rice had the authority to make the
final decision whether to terminate Waters’ employment,
her decision was constrained by the Personnel Rules.
16 Nos. 08-1583 & 08-2493
Her decision also was subject to review by the
Personnel Board and the Law and Personnel Depart-
ments for compliance with City personnel and employ-
ment policies. Therefore, Commissioner Rice did not
have final authority to make employment policy for
the City.
And there is another reason why we cannot accept
Waters’ argument that the Commissioner of Human
Resources delegated policymaking authority to depart-
ment heads. We agree with the City that had the Com-
missioner of Human Resources intended to delegate the
authority to set personnel policy to the department heads,
the Commissioner would have been explicit about it. The
setting of personnel policy for any municipality is a
highly important matter. This is especially true for a
city the size of Chicago, which employs thousands of
individuals. It escapes reason to believe that the Com-
missioner would have delegated matters of such impor-
tance in such an indistinct manner, and there is no evi-
dence in the record to suggest that the Commissioner
delegated that authority.
In conclusion, Waters had to present evidence from
which a reasonable juror could find that Commissioner
Rice was the final policymaker with respect to the City’s
employment policy. However, his evidence came up
short: He presented no evidence of the delegation to
Rice of final policymaking authority in employment
matters. Therefore, the City’s motion for judgment as a
matter of law should have been granted.
Nos. 08-1583 & 08-2493 17
B. Retaliatory Motive
But even if Waters had presented evidence to establish
that Commissioner Rice was a final policymaker with
respect to employment policy, the City’s Rule 50 motion
should have been granted. Waters also failed to present
any evidence to prove that Rice terminated him in re-
taliation for his exercise of his First Amendment rights.
Waters contends that a municipality can be held liable
if a municipal policymaker intentionally performs an
act that results in a constitutional violation without
regard to the policymaker’s intent. This is incorrect. It is
not enough for a plaintiff simply to show an intentional
act by a policymaker that results in a constitutional depri-
vation. A § 1983 plaintiff must prove culpability, i.e.,
that the policymaker intentionally deprived him of a
constitutional right. In Board of County Commissioners
v. Brown, 520 U.S. 397 (1997), the Court confirmed that
where a plaintiff attempts to hold a municipality liable
under § 1983 for a single decision attributable to the
municipality, he must prove fault and causation:
[I]t is not enough for a § 1983 plaintiff merely to
identify conduct properly attributable to the
municipality. . . . [A] plaintiff must show that the
municipal action was taken with the requisite
degree of culpability and must demonstrate a
direct causal link between the municipal action and
the deprivation of federal rights.
Id. at 404. As in any § 1983 action, the plaintiff must
“establish the state of mind required to prove the underly-
ing violation.” Id. at 405. A municipality can be held
18 Nos. 08-1583 & 08-2493
liable under § 1983 only if culpable; it cannot be held
liable under respondeat superior. Id. at 403; see also
Valentino, 2009 WL 2253406, at *7 (“Monell liability is not
a form of respondeat superior.”).
In a First Amendment retaliation claim, as Waters
alleged here, the plaintiff must prove that his speech
“was the ‘reason’ that the employer decided to act.” Gross
v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2350 (2009); see also
Fairley v. Andrews, No. 07-3343, 2009 WL 2525564, at *7 (7th
Cir. Aug. 20, 2009) (indicating that the decisions which
say that a plaintiff need only prove that his speech was
a motivating factor in the defendant’s decision do not
survive Gross). Waters presented no evidence to
establish that Commissioner Rice’s decision to terminate
his employment was caused whatsoever by his exercise
of his free speech or association rights. Nor did he
produce any evidence to suggest that Rice even knew
about his exercise of those rights. The most that can be
said of Waters’ proof is that he established that
Kaderbek and perhaps others under him harbored a
retaliatory motive. Such evidence may show that these
supervisors are responsible for their own misconduct,
but falls short of establishing the City’s liability under
Monell. See Estate of Sims, 506 F.3d at 515 (“Misbehaving
employees are responsible for their own conduct; units
of local government are responsible only for their
policies rather than misconduct by their workers.” (quota-
tion omitted)).
Waters suggests that the City can be held liable
because Rice adopted Kaderbek’s recommendation that
Nos. 08-1583 & 08-2493 19
Waters be terminated and Kaderbek had a retaliatory
motive. True, a municipality may be held liable based on
a ratification theory. Killinger v. Johnson, 389 F.3d 765, 772
(7th Cir. 2004); Gernetzke v. Kenosha Unified Sch. Dist. No. 1,
274 F.3d 464, 469 (7th Cir. 2001) (stating that “by
adopting an employee’s action as its own (what is called
‘ratification’), a public employer becomes the author of
the action for purposes of liability under section 1983”).
However, it is not enough for the policymaker to
merely approve another’s decision. In Praprotnik the
Court stated: “If the authorized policymakers approve
a subordinate’s decision and the basis for it, their ratifica-
tion would be chargeable to the municipality[.]” 485 U.S.
at 127 (emphasis added). Waters argues that the
Praprotnik Court did not address the significance of
“the basis for it” language because in that case no
policymaker reviewed the decision at issue. We do not
presume that this language lacked significance, however.
We have reiterated that for municipal liability to attach,
a municipality must approve both the employee’s
conduct and the basis for that conduct, i.e., the employee’s
motivation. See, e.g., Rasche v. Vill. of Beecher, 336 F.3d 588,
598 n.11 (7th Cir. 2003) (“In order to adopt such an
action, the municipality must know of the ‘subordinate’s
conduct’ and ‘approve[ ] of the conduct and the basis for
it.’ ” (quoting Baskin v. City of Des Plaines, 138 F.3d 701, 705
(7th Cir. 1998)) (emphasis added); Killinger, 389 F.3d at
772. Similarly, other circuits have required proof that the
policymaker approved of the unconstitutional motive.
See, e.g., Kirby v. City of Elizabeth City, N.C., 388 F.3d 440,
451 (4th Cir. 2004); Brennan v. Norton, 350 F.3d 399, 427-28
20 Nos. 08-1583 & 08-2493
(3d Cir. 2003) (no municipal liability where plaintiff
offered no evidence that mayor or town council ap-
proved of retaliatory motivation behind township man-
ager’s retaliatory actions).
As an example, in Kirby, the plaintiff police officer
gave testimony at another officer’s grievance hearing that
the plaintiff believed angered the police chief. The
plaintiff was subsequently reprimanded and the chief
later demoted him. The plaintiff claimed he was
retaliated against for exercising his freedom of speech.
Kirby, 388 F.3d at 443-44. During the grievance process,
the plaintiff’s demotion was affirmed by the City’s per-
sonnel appeals committee and city manager. Id. at 444-45.
The plaintiff sued the City under § 1983, asserting that
it could be held liable for retaliating against him because
it ratified and acquiesced in the chief’s decision to
demote him. The court rejected that theory because the
plaintiff had no evidence that the appeals committee or
city manager approved of retaliation as a basis for his
demotion. Id. at 451.
The Supreme Court’s discussion of delegation in
Praprotnik has some bearing on this issue as well.
The Court stated that “[s]imply going along with discre-
tionary decisions made by one’s subordinates . . . is not a
delegation to them of the authority to make policy. It is
equally consistent with a presumption that the subordi-
nates are faithfully attempting to comply with the
polices that are supposed to guide them.” Praprotnik, 485
U.S. at 130. The Court further explained that “the mere
failure to investigate the basis of a subordinate’s discre-
Nos. 08-1583 & 08-2493 21
tionary 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. This
rationale applies equally to a ratification theory. If the
mere approval by a policymaker of a subordinate’s deci-
sion was sufficient to impose municipal liability,
then virtually any action by a municipal employee
could become chargeable to the municipality, and the
municipality would be liable under respondeat superior
liability. But we know that it can’t be. See Valentino, 2009
WL 2253406, at *7 (“Monell liability is not a form of
respondeat superior.”). Waters would have us read the
“and the basis for it” language right out of Praprotnik. We
decline to do so.
While Commissioner Rice accepted Kaderbek’s recom-
mendation and terminated Waters, Waters presented no
evidence that she approved of Kaderbek’s retaliatory
motivation. Waters offered no evidence that Rice acted
with the intent to deprive him of his First Amendment
rights. Nor did he offer any evidence that she was
even aware of Kaderbek’s retaliatory motive or that of
anyone else. Nor did Waters present any evidence that
Rice even knew that he declined to campaign in the
Tenth Ward or that he contacted the media to report
problems he perceived in the Bureau. Likewise, Waters
offered no evidence to even suggest that the Commissioner
of Human Resources, the City Council, or for that matter,
the Personnel Board, affirmatively approved of any
retaliatory motive behind the recommendation to termi-
nate him. Thus, he has not shown municipal liability
22 Nos. 08-1583 & 08-2493
under a ratification theory. In the end, Waters seeks to
hold the City vicariously liable for the acts of its non-
policymaking employees—Kaderbek and perhaps
others subordinate to him. The law does not allow for
municipal liability under § 1983 in such a case. See Estate
of Sims, 506 F.3d at 515 (“[M]unicipal liability is limited
to action for which the municipality is actually responsi-
ble” (quotation omitted)).
A brief comment on some of Waters’ other arguments
is warranted. Waters suggests that the City cannot avoid
liability for injuries caused by a policymaker’s act by
claiming it did not know the act was illegal, relying on
Owen v. City of Independence, Mo., 445 U.S. 622 (1980).
However, the City is not claiming that it did not know
that firing an employee in retaliation for exercising his
First Amendment rights was unlawful. Instead, its
position is that his termination by Commissioner Rice
simply did not violate his constitutional rights.2
2
Waters makes a passing reference to the “cat’s paw” theory,
but we question whether such a theory is applicable for pur-
poses of establishing § 1983 municipal liability. Under this
theory, “the discriminatory animus of a nondecisionmaker is
imputed to the decisionmaker where the former has singular
influence over the latter and uses that influence to cause the
adverse employment action.” Staub v. Proctor Hosp., 560 F.3d
647, 651 (7th Cir. 2009) (alleged discriminatory discharge
under Uniformed Services Employment and Reemployment
Rights Act). The theory is steeped in agency principles which
are applied in the Title VII context, see, e.g., Burlington Indus.,
(continued...)
Nos. 08-1583 & 08-2493 23
Finally, Waters feebly attempts to argue that “Rice could
not have been blind to the illegal purposes of Stan
Kaderbek” and that “the political realities of the relation-
ship between the leadership of the City of Chicago and
John Kass cannot be ignored.” Yet Waters fails to cite
any evidence to support these conclusory assertions.
Speculation about Rice’s knowledge of her subordinate’s
motivations and her awareness of the goings-on in the
Bureau of Bridges does not get Waters to a jury.
2
(...continued)
Inc. v. Ellerth, 524 U.S. 742, 754 (1988) (“Congress has directed
federal courts to interpret Title VII based on agency principles”),
but don’t apply to § 1983 municipal liability, Monell, 436 U.S.
at 691 (“[A] municipality cannot be held liable solely because
it employs a tortfeasor” (emphasis in Monell)). We were
unable to find any other case applying the cat’s paw theory to
hold a municipality liable under § 1983. The district court cited
only Title VII and ADEA cases to justify its use of this theory
and, in his defense of this theory in his appellate brief, Waters
could only muster up a Title VII case. Imputing a non-
decisionmaker’s motive to a municipal employer sounds
a lot like respondeat superior liability. Given that well devel-
oped § 1983 municipal liability law recognizes delegation and
ratification, there seems to be little point in trying to awkwardly
fit the cat’s paw concept in this area of civil rights law. But
even if a cat’s paw type of theory applies in this context, Waters
hasn’t shown a singular influence over Rice that caused the
termination decision. Furthermore, any minimal influence is
negated by Rice’s own independent review of the grounds
for Waters’ termination. See Staub, 560 F.3d at 656; Brewer v.
Bd. of Trs. of Univ. of Ill., 479 F.3d 908, 918-19 (7th Cir. 2007).
24 Nos. 08-1583 & 08-2493
In sum, even if Commissioner Rice were a policymaker
for employment matters for the City, the City was
entitled to judgment as a matter of law because there
was no evidence that she had a culpable motive or intent.
Because we have decided that the City is entitled to a
judgment as a matter of law, we need not address the
district court’s denial of the City’s alternative motion for
a new trial. Given that judgment will be entered for
the City, Waters cannot be viewed as a prevailing party
for purposes of 42 U.S.C. § 1988. Consequently, the
district court’s judgment awarding attorneys’ fees and
costs to Waters must also be vacated.
III.
Accordingly, we V ACATE the district court’s judgments,
R EVERSE the district court’s denial of the City’s motions
for judgment as a matter of law, and REMAND with direc-
tions to enter judgment as a matter of law in favor of the
City and against Waters on Waters’ claim arising under
42 U.S.C. § 1983.
9-2-09