JUSTICE O'CONNOR announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE SCALIA join.
This case calls upon us to define the proper legal standard for determining when isolated decisions by municipal officials or employees may expose the municipality itself to liability under 42 U. S. C. § 1983.
The principal facts are not in dispute. Respondent James H. Praprotnik is an architect who began working for petitioner city of St. Louis in 1968. For several years, respondent consistently received favorable evaluations of his job performance, uncommonly quick promotions, and significant increases in salary. By 1980, he was serving in a management-level city planning position at petitioner's Community Development Agency (CDA).
The Director of CDA, Donald Spaid, had instituted a requirement that the agency's professional employees, including architects, obtain advance approval before taking on private clients. Respondent and other CDA employees objected
The Commission's decision was not well received by respondent's supervisors at CDA. Kindleberger later testified that he believed respondent had lied to the Commission, and that Spaid was angry with respondent.
Respondent's next two annual job performance evaluations were markedly less favorable than those in previous years. In discussing one of these evaluations with respondent, Kindleberger apparently mentioned his displeasure with respondent's 1980 appeal to the Civil Service Commission. Respondent appealed both evaluations to the Department of Personnel. In each case, the Department ordered partial relief and was upheld by the city's Director of Personnel or the Civil Service Commission.
In April 1981, a new Mayor came into office, and Donald Spaid was replaced as Director of CDA by Frank Hamsher. As a result of budget cuts, a number of layoffs and transfers significantly reduced the size of CDA and of the planning section in which respondent worked. Respondent, however, was retained.
In the spring of 1982, a second round of layoffs and transfers occurred at CDA. At that time, the city's Heritage and Urban Design Commission (Heritage) was seeking approval to hire someone who was qualified in architecture and urban planning. Hamsher arranged with the Director of Heritage, Henry Jackson, for certain functions to be transferred from CDA to Heritage. This arrangement, which made it possible for Heritage to employ a relatively high-level "city planning
Respondent objected to the transfer, and appealed to the Civil Service Commission. The Commission declined to hear the appeal because respondent had not suffered a reduction in his pay or grade. Respondent then filed suit in Federal District Court, alleging that the transfer was unconstitutional. The city was named as a defendant, along with Kindleberger, Hamsher, Jackson (whom respondent deleted from the list before trial), and Deborah Patterson, who had succeeded Hamsher at CDA.
At Heritage, respondent became embroiled in a series of disputes with Jackson and Jackson's successor, Robert Killen. Respondent was dissatisfied with the work he was assigned, which consisted of unchallenging clerical functions far below the level of responsibilities that he had previously enjoyed. At least one adverse personnel decision was taken against respondent, and he obtained partial relief after appealing that decision.
In December 1983, respondent was laid off from Heritage. The layoff was attributed to a lack of funds, and this apparently meant that respondent's supervisors had concluded that they could create two lower level positions with the funds that were being used to pay respondent's salary. Respondent then amended the complaint in his lawsuit to include a challenge to the layoff. He also appealed to the Civil Service Commission, but proceedings in that forum were postponed because of the pending lawsuit and have never been completed. Tr. Oral Arg. 31-32.
The case went to trial on two theories: (1) that respondent's First Amendment rights had been violated through retaliatory actions taken in response to his appeal of his 1980 suspension; and (2) that respondent's layoff from Heritage was carried out for pretextual reasons in violation of due process. The jury returned special verdicts exonerating
A panel of the Court of Appeals for the Eighth Circuit found that the due process claim had been submitted to the jury on an erroneous legal theory and vacated that portion of the judgment. With one judge dissenting, however, the panel affirmed the verdict holding the city liable for violating respondent's First Amendment rights. 798 F.2d 1168 (1986). Only the second of these holdings is challenged here.
The Court of Appeals found that the jury had implicitly determined that respondent's layoff from Heritage was brought about by an unconstitutional city policy. Id., at 1173. Applying a test under which a "policymaker" is one whose employment decisions are "final" in the sense that they are not subjected to de novo review by higher ranking officials, the Court of Appeals concluded that the city could be held liable for adverse personnel decisions taken by respondent's supervisors. Id., at 1173-1175. In response to petitioner's contention that the city's personnel policies are actually set by the Civil Service Commission, the Court of Appeals concluded that the scope of review before that body was too "highly circumscribed" to allow it fairly to be said that the Commission, rather than the officials who initiated the actions leading to respondent's injury, were the "final authority" responsible for setting city policy. Id., at 1175.
Turning to the question whether a rational jury could have concluded that respondent had been injured by an unconstitutional policy, the Court of Appeals found that respondent's transfer from CDA to Heritage had been "orchestrated" by Hamsher, that the transfer had amounted to a "constructive discharge," and that the injury had reached fruition when respondent was eventually laid off by Nash and Killen. Id., at 1175-1176, and n. 8. The court held that the jury's verdict exonerating Hamsher and the other individual defendants could be reconciled with a finding of liability
The dissenting judge relied on our decision in Pembaur v. Cincinnati, 475 U.S. 469 (1986). He found that the power to set employment policy for petitioner city of St. Louis lay with the Mayor and Aldermen, who were authorized to enact ordinances, and with the Civil Service Commission, whose function was to hear appeals from city employees who believed that their rights under the city's Charter, or under applicable rules and ordinances, had not been properly respected. 798 F. 2d, at 1180. The dissent concluded that respondent had submitted no evidence proving that the Mayor and Aldermen, or the Commission, had established a policy of retaliating against employees for appealing from adverse personnel decisions. Id., at 1179-1181. The dissenting judge also concluded that, even if there were such a policy, the record evidence would not support a finding that respondent was in fact transferred or laid off in retaliation for the 1980 appeal from his suspension. Id., at 1181-1182.
We granted certiorari, 479 U.S. 1029 (1987), and we now reverse.
We begin by addressing a threshold procedural issue. The second question presented in the petition for certiorari reads as follows:
Although this question was manifestly framed in light of the holding of the Court of Appeals, respondent argues that petitioner failed to preserve the question through a timely objection to the jury instructions under Federal Rule of Civil Procedure 51. Arguing that both parties treated the identification of municipal "policymakers" as a question of fact at trial, respondent emphasizes that the jury was given the following instruction, which was offered by the city itself:
Relying on Oklahoma City v. Tuttle, 471 U.S. 808 (1985), and Springfield v. Kibbe, 480 U.S. 257 (1987), respondent contends that the jury instructions should be reviewed only for plain error, and that the jury's verdict should be tested only for sufficiency of the evidence. Declining to defend the legal standard adopted by the Court of Appeals, respondent vigorously insists that the judgment should be affirmed on the basis of the jury's verdict and petitioner's alleged failure to comply with Rule 51.
Petitioner argues that it preserved the legal issues presented by its petition for certiorari in at least two ways. First, it filed a pretrial motion for summary judgment, or alternatively for judgment on the pleadings. In support of that motion, petitioner argued that respondent had failed to allege the existence of any impermissible municipal policy or of any facts that would indicate that such a policy existed. Second, petitioner filed a motion for directed verdict at the close of respondent's case, renewed that motion at the close
Respondent's arguments do not bring our jurisdiction into question, and we must not lose sight of the fact, stressed in Tuttle, that the "decision to grant certiorari represents a commitment of scarce judicial resources with a view to deciding the merits of one or more of the questions presented in the petition." 471 U. S., at 816. In Kibbe, it is true, the writ was dismissed in part because the petitioner sought to challenge a jury instruction to which it had not objected at trial. In the case before us, the focus of petitioner's challenge is not on the jury instruction itself, but on the denial of its motions for summary judgment and a directed verdict. Although the same legal issue was raised both by those motions and by the jury instruction, "the failure to object to an instruction does not render the instruction the `law of the case' for purposes of appellate review of the denial of a directed verdict or judgment notwithstanding the verdict." Kibbe, supra, at 264 (dissenting opinion) (citations omitted). Petitioner's legal position in the District Court — that respondent had failed to establish an unconstitutional municipal policy — was consistent with the legal standard that it now advocates. It should not be surprising if petitioner's arguments in the District Court were much less detailed than the arguments it now makes in response to the decision of the Court of Appeals. That, however, does not imply that petitioner failed to preserve the issue raised in its petition for certiorari. Cf. post, at 165-167 (STEVENS, J., dissenting). Accordingly, we find no obstacle to reviewing the question presented in the petition for certiorari, a question that was very clearly considered, and decided, by the Court of Appeals.
We note, too, that petitioner has throughout this litigation been confronted with a legal landscape whose contours are "in a state of evolving definition and uncertainty." Newport v. Fact Concerts, Inc., 453 U.S. 247, 256 (1981). We therefore do not believe that our review of the decision of the
Section 1 of the Ku Klux Act of 1871, Rev. Stat. § 1979, as amended, 42 U. S. C. § 1983, provides:
Ten years ago, this Court held that municipalities and other bodies of local government are "persons" within the meaning of this statute. Such a body may therefore be sued directly if it is alleged to have caused a constitutional tort through "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 (1978). The Court pointed out that § 1983 also authorizes suit "for constitutional deprivations visited pursuant to governmental `custom' even though such a custom has not received formal approval through the body's official decisionmaking channels." Id., at 690-691. At the same time, the Court rejected the use of the doctrine of respondeat superior and concluded that municipalities could be held liable only when an injury was inflicted by a government's
Monell's rejection of respondeat superior, and its insistence that local governments could be held liable only for the results of unconstitutional governmental "policies," arose from the language and history of § 1983. For our purposes here, the crucial terms of the statute are those that provide for liability when a government "subjects [a person], or causes [that person] to be subjected," to a deprivation of constitutional rights. Aware that governmental bodies can act only through natural persons, the Court concluded that these governments should be held responsible when, and only when, their official policies cause their employees to violate another person's constitutional rights. Reading the statute's language in the light of its legislative history, the Court found that vicarious liability would be incompatible with the causation requirement set out on the face of § 1983. See id., at 691. That conclusion, like decisions that have widened the scope of § 1983 by recognizing constitutional rights that were unheard of in 1871, has been repeatedly reaffirmed. See, e. g., Owen v. City of Independence, 445 U.S. 622, 633, 655, n. 39 (1980); Polk County v. Dodson, 454 U.S. 312, 325 (1981); Tuttle, 471 U. S., at 818, and n. 5 (plurality opinion); id., at 828 (BRENNAN, J., concurring in part and concurring in judgment); Pembaur v. Cincinnati, 475 U. S., at 478-480, and nn. 7-8. Cf. Newport v. Fact Concerts, Inc., supra, at 259 ("[B]ecause the 1871 Act was designed to expose state and local officials to a new form of liability, it would defeat the promise of the statute to recognize any pre-existing immunity without determining both the policies that it serves and its compatibility with the purposes of § 1983").
In Monell itself, it was undisputed that there had been an official policy requiring city employees to take actions that were unconstitutional under this Court's decisions. Without attempting to draw the line between actions taken pursuant to official policy and the independent actions of employees
In the years since Monell was decided, the Court has considered several cases involving isolated acts by government officials and employees. We have assumed that an unconstitutional governmental policy could be inferred from a single decision taken by the highest officials responsible for setting policy in that area of the government's business. See, e. g., Owen v. City of Independence, supra; Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981). Cf. Pembaur, supra, at 480. At the other end of the spectrum, we have held that an unjustified shooting by a police officer cannot, without more, be thought to result from official policy. Tuttle, 471 U. S., at 821 (plurality opinion); id., at 830-831, and n. 5 (BRENNAN, J., concurring in part and concurring in judgment). Cf. Kibbe, 480 U. S., at 260 (dissenting opinion).
Two Terms ago, in Pembaur, supra, we undertook to define more precisely when a decision on a single occasion may be enough to establish an unconstitutional municipal policy. Although the Court was unable to settle on a general formulation, JUSTICE BRENNAN's opinion articulated several guiding principles. First, a majority of the Court agreed that municipalities may be held liable under § 1983 only for acts for which the municipality itself is actually responsible, "that is, acts which the municipality has officially sanctioned or ordered." Id., at 480. Second, only those municipal officials who have "final policymaking authority" may by their actions subject the government to § 1983 liability. Id., at 483 (plurality opinion). Third, whether a particular official has "final policymaking authority" is a question of state law. Ibid. (plurality opinion). Fourth, the challenged action must have been taken pursuant to a policy adopted by the official or officials responsible under state law for making policy in that area of the city's business. Id., at 482-483, and n. 12 (plurality opinion).
We begin by reiterating that the identification of policymaking officials is a question of state law. "Authority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority, and of course, whether an official had final policymaking authority is a question of state law." Pembaur v. Cincinnati, supra, at 483 (plurality opinion).
We are not, of course, predicting that state law will always speak with perfect clarity. We have no reason to suppose,
As the plurality in Pembaur recognized, special difficulties can arise when it is contended that a municipal policymaker has delegated his policymaking authority to another official. 475 U. S., at 482-483, and n. 12. If the mere exercise of discretion by an employee could give rise to a constitutional violation, the result would be indistinguishable from respondeat superior liability. If, however, a city's lawful policymakers could insulate the government from liability simply by delegating their policymaking authority to others, § 1983 could not serve its intended purpose. It may not be possible to draw an
First, whatever analysis is used to identify municipal policymakers, egregious attempts by local governments to insulate themselves from liability for unconstitutional policies are precluded by a separate doctrine. Relying on the language of § 1983, the Court has long recognized that a plaintiff may be able to prove the existence of a widespread practice that, although not authorized by written law or express municipal policy, is "so permanent and well settled as to constitute a `custom or usage' with the force of law." Adickes v. S. H. Kress & Co., 398 U.S. 144, 167-168 (1970). That principle, which has not been affected by Monell or subsequent cases, ensures that most deliberate municipal evasions of the Constitution will be sharply limited.
Second, as the Pembaur plurality recognized, the authority to make municipal policy is necessarily the authority to make final policy. 475 U. S., at 481-484. When an official's discretionary decisions are constrained by policies not of that official's making, those policies, rather than the subordinate's departures from them, are the act of the municipality. 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. 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.
Whatever refinements of these principles may be suggested in the future, we have little difficulty concluding that the Court of Appeals applied an incorrect legal standard in this case. In reaching this conclusion, we do not decide whether the First Amendment forbade the city to retaliate against respondent for having taken advantage of the grievance mechanism in 1980. Nor do we decide whether there
The city cannot be held liable under § 1983 unless respondent proved the existence of an unconstitutional municipal policy. Respondent does not contend that anyone in city government ever promulgated, or even articulated, such a policy. Nor did he attempt to prove that such retaliation was ever directed against anyone other than himself. Respondent contends that the record can be read to establish that his supervisors were angered by his 1980 appeal to the Civil Service Commission; that new supervisors in a new administration chose, for reasons passed on through some informal means, to retaliate against respondent two years later by transferring him to another agency; and that this transfer was part of a scheme that led, another year and a half later, to his layoff. Even if one assumes that all this was true, it says nothing about the actions of those whom the law established as the makers of municipal policy in matters of personnel administration. The Mayor and Aldermen enacted no ordinance designed to retaliate against respondent or against similarly situated employees. On the contrary, the city established an independent Civil Service Commission and empowered it to review and correct improper personnel actions. Respondent does not deny that his repeated appeals from adverse personnel decisions repeatedly brought him at least partial relief, and the Civil Service Commission never so much as hinted that retaliatory transfers or layoffs were permissible. Respondent points to no evidence indicating that the Commission delegated to anyone its final authority to
The Court of Appeals concluded that "appointing authorities," like Hamsher and Killen, who had the authority to initiate transfers and layoffs, were municipal "policymakers." The court based this conclusion on its findings (1) that the decisions of these employees were not individually reviewed for "substantive propriety" by higher supervisory officials; and (2) that the Civil Service Commission decided appeals from such decisions, if at all, in a circumscribed manner that gave substantial deference to the original decisionmaker. 798 F. 2d, at 1174-1175. We find these propositions insufficient to support the conclusion that Hamsher and Killen were authorized to establish employment policy for the city with respect to transfers and layoffs. To the contrary, the City Charter expressly states that the Civil Service Commission has the power and the duty:
This case therefore resembles the hypothetical example in Pembaur: "[I]f [city] employment policy was set by the
JUSTICE BRENNAN'S opinion, concurring in the judgment, finds implications in our discussion that we do not think necessary or correct. See post, at 142-147. We nowhere say or imply, for example, that "a municipal charter's precatory
Nor do we believe that we have left a "gaping hole" in § 1983 that needs to be filled with the vague concept of "de facto final policymaking authority." Post, at 144. Except perhaps as a step towards overruling Monell and adopting the doctrine of respondeat superior, ad hoc searches for officials possessing such "de facto" authority would serve primarily to foster needless unpredictability in the application of § 1983.
We cannot accept either the Court of Appeals' broad definition of municipal policymakers or respondent's suggestion that a jury should be entitled to define for itself which officials' decisions should expose a municipality to liability. Respondent has suggested that the record will support an inference that policymaking authority was in fact delegated to individuals who took retaliatory action against him and who were not exonerated by the jury. Respondent's arguments appear to depend on a legal standard similar to the one suggested in JUSTICE STEVENS' dissenting opinion, post, at 171, which we do not accept. Our examination of the record and state law, however, suggests that further review of this case may be warranted in light of the principles we have discussed. That task is best left to the Court of Appeals, which will be free to invite additional briefing and argument if necessary. Accordingly, the decision of the Court of Appeals is
It is so ordered.
JUSTICE KENNEDY took no part in the consideration or decision of this case.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, concurring in the judgment.
Despite its somewhat confusing procedural background, this case at bottom presents a relatively straightforward question: whether respondent's supervisor at the Community Development Agency, Frank Hamsher, possessed the authority to establish final employment policy for the city of St. Louis such that the city can be held liable under 42 U. S. C. § 1983 for Hamsher's allegedly unlawful decision to transfer respondent to a dead-end job. Applying the test set out two Terms ago by the plurality in Pembaur v. Cincinnati, 475 U.S. 469 (1986), I conclude that Hamsher did not possess such authority and I therefore concur in the Court's judgment reversing the decision below. I write separately, however, because I believe that the commendable desire of today's plurality to "define more precisely when a decision on a single occasion may be enough" to subject a municipality to § 1983 liability, ante, at 123, has led it to embrace a theory of municipal liability that is both unduly narrow and unrealistic, and one that ultimately would permit municipalities to insulate themselves from liability for the acts of all but a small minority of actual city policymakers.
Respondent James H. Praprotnik worked for petitioner city of St. Louis for 15 years. A licensed architect, he began his career in 1968 as city planner and by 1980 had risen to a mid-level management position in the city's Community Development Agency (CDA), garnering consistently high job evaluations, substantial pay raises, and rapid promotions
Testimony at the trial below revealed that neither Spaid nor Kindleberger was pleased with respondent's actions, and that Spaid in particular was "very down on" respondent for his testimony before the CSC. 3 Record 1-54 to 1-55, 5 id., at 3-237. In October 1980, just before the CSC rendered its decision, Kindleberger gave respondent an overall rating of "good" for the year, but recommended a two-step decrease in his salary. Kindleberger, who had just six months earlier proposed raising respondent's salary two grades, justified the reduction as part of a citywide pay scale reorganization. Respondent, however, viewed the recommendation as retaliation for his CSC appeal and petitioned the Department of Personnel for relief; the Department, which considers initial challenges to all performance ratings, granted partial relief, approving a one-step reduction, and the CSC affirmed this disposition on final appeal.
The following year witnessed a change in city administrations and the arrival of Frank Hamsher, who succeeded Spaid as CDA Director. Kindleberger, however, remained the supervisor responsible for respondent's performance
Six months later CDA underwent major budget and staff reductions and, as part of the resulting reorganization, Director Hamsher proposed transferring respondent's duties to the Heritage and Urban Design Commission (Heritage) and consolidating his functions with those of a vacant position at Heritage. Although there was testimony indicating that Heritage Commissioner Henry Jackson thought the transfer unnecessary, both Jackson and his superior, Director of Public Safety Thomas Nash, agreed to the consolidation, and the Director of Personnel formally approved the proposal. Respondent objected to the move and appealed to the CSC, but the CSC declined to review the decision, reasoning that because Heritage classified the consolidated position at the same grade as respondent's former job, the transfer was merely "lateral" and respondent had therefore suffered no "adverse" employment action. Thereafter, respondent filed this § 1983 suit against the city, Kindleberger, Hamsher, and Hamsher's successor at CDA, Deborah Patterson, alleging that the transfer violated his constitutional rights.
In the meantime, Jackson took over many of the architectural tasks CDA had ostensibly transferred to the new position and assigned respondent mainly clerical duties, an arrangement the latter found highly unsatisfactory. In November 1982, Jackson rated respondent "inadequate" overall and recommended a one-step reduction in his salary, as well
At trial, respondent sought to prove that the individual defendants had transferred him and eventually laid him off in retaliation for his use of the city's grievance machinery, thereby violating his First Amendment and due process rights. For its part, the city contended that the individual defendants were not personally responsible for the alleged ills that had befallen respondent. Conspicuous by their absence, city counsel argued, were Donald Spaid, whose displeasure over respondent's testimony before the CSC was allegedly the motivating force behind respondent's first proposed grade reduction and allegedly infected later performance evaluations; Robert Killen, who initiated and ultimately authorized the elimination of respondent's position at Heritage; and Thomas Nash, who approved the layoff. Respondent's counsel, however, defended the choice of defendants as those "primarily responsible" for the constitutional deprivations. 6 id., at 4-56.
The District Court instructed the jury that generally a city is not liable under § 1983 for the acts of its employees, but that it may be held to answer for constitutional wrongs "committed by an official high enough in the government so that his or her actions can be said to represent a government decision." App. 113. In a lengthy and involved instruction, the court further advised the jury that it must find in favor of
The Court of Appeals for the Eighth Circuit vacated the judgment entered on respondent's due process claim (a ruling not at issue here) but affirmed the judgment as to the First Amendment claim. 798 F.2d 1168 (1986). With respect to this latter claim, the court reasoned that the city could be held accountable for an improperly motivated transfer and layoff if it had delegated to the responsible officials, either directly or indirectly, the authority to act on behalf of the city, and if the decisions made within the scope of this delegated authority were essentially final. Applying this test, the court noted that under the City Charter, "appointing authorities," or department heads, such as Hamsher, could undertake transfers and layoffs subject only to the approval of the Director of Personnel, who undertook no substantive review of such decisions and simply conditioned his approval on formal compliance with city procedures. Moreover, because the CSC engaged in highly circumscribed and deferential review of layoffs and, at least so far as this case reveals, no review whatever of lateral transfers, the court concluded that an appointing authority's transfer and layoff decisions were final. Id., at 1174-1175.
Having found that Hamsher was a final policymaker whose acts could subject petitioner to § 1983 liability, the court determined that the jury had ample evidence from which it could find that Hamsher transferred respondent in retaliation for the latter's exercise of his First Amendment rights, and that the transfer in turn precipitated respondent's layoff. This constructive discharge theory, the majority found, also reconciled the jury's apparently inconsistent verdicts: the
In light of the jury instructions below, the central question before us is whether the city delegated to CDA Director Frank Hamsher the authority to establish final employment policy for the city respecting transfers. For if it did not, then his allegedly unlawful decision to move respondent to an unfulfilling, dead-end position is simply not an act for which the city can be held responsible under § 1983. I am constrained to conclude that Hamsher possessed no such policymaking power here, and that, on the contrary, his allegedly retaliatory act simply constituted an abuse of the discretionary authority the city had entrusted to him.
The scope of Hamsher's authority with respect to transfers derives its significance from our determination in Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), that a municipality is not liable under § 1983 for each and every wrong committed by its employees. In rejecting the concept of vicarious municipal liability, we emphasized that
Municipalities, of course, conduct much of the business of governing through human agents. Where those agents act in accordance with formal policies, or pursuant to informal practices "so permanent and well settled as to constitute a `custom or usage' with the force of law," Adickes v. S. H. Kress & Co., 398 U.S. 144, 167-168 (1970), we naturally ascribe their acts to the municipalities themselves and hold the latter responsible for any resulting constitutional deprivations. Monell, which involved a challenge to a citywide policy requiring all pregnant employees to take unpaid leave after their fifth month of pregnancy, was just such a case. Nor have we ever doubted that a single decision of a city's properly constituted legislative body is a municipal act capable of subjecting the city to liability. See, e. g., Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981) (City Council canceled concert permit for content-based reasons); Owen v. City of Independence, 445 U.S. 622 (1980) (City Council passed resolution firing Police Chief without any pretermination hearing). In these cases we neither required nor, as the plurality suggests, assumed that these decisions reflected generally applicable "policies" as that term is commonly understood, because it was perfectly obvious that the actions of the municipalities' policymaking organs, whether isolated or not, were properly charged to the municipalities themselves.
In concluding that Frank Hamsher was a policymaker, the Court of Appeals relied on the fact that the city had delegated to him "the authority, either directly or indirectly, to act on [its] behalf," and that his decisions within the scope of this delegated authority were effectively final. 798 F. 2d, at 1174. In Pembaur, however, we made clear that a municipality is not liable merely because the official who inflicted the constitutional injury had the final authority to act on its behalf; rather, as four of us explained, the official in question must possess "final authority to establish municipal policy with respect to the [challenged] action." 475 U. S., at 481. Thus, we noted, "[t]he fact that a particular official — even a policymaking official — has discretion in the exercise of particular functions does not, without more, give rise to municipal
In my view, Pembaur controls this case. As an "appointing authority," Hamsher was empowered under the City Charter to initiate lateral transfers such as the one challenged here, subject to the approval of both the Director of Personnel and the appointing authority of the transferee agency. The Charter, however, nowhere confers upon
These determinations, it seems to me, are sufficient to dispose of this case, and I therefore think it unnecessary to decide, as the plurality does, who the actual policymakers in St. Louis are. I question more than the mere necessity of these determinations, however, for I believe that in the course of passing on issues not before us, the plurality announces legal principles that are inconsistent with our earlier cases and unduly restrict the reach of § 1983 in cases involving municipalities.
The plurality begins its assessment of St. Louis' power structure by asserting that the identification of policymaking officials is a question of state law, by which it means that the question is neither one of federal law nor of fact, at least "not. . . in the usual sense." See ante, at 124. Instead, the plurality explains, courts are to identify municipal policymakers
Nor does the "custom or usage" doctrine adequately compensate for the inherent inflexibility of a rule that leaves the identification of policymakers exclusively to state statutory law. That doctrine, under which municipalities and States can be held liable for unconstitutional practices so well settled and permanent that they have the force of law, see Adickes v. S. H. Kress & Co., 398 U. S., at 167, has little if any bearing on the question whether a city has delegated de facto final policymaking authority to a given official. A city practice of delegating final policymaking authority to a subordinate or mid-level official would not be unconstitutional in and of itself, and an isolated unconstitutional act by an official entrusted with such authority would obviously not amount to a municipal "custom or usage." Under Pembaur, of course, such an isolated act should give rise to municipal liability. Yet a case such as this would fall through the gaping hole the plurality's construction leaves in § 1983, because state statutory law would not identify the municipal actor as a policymaking official, and a single constitutional deprivation, by definition, is not a well-settled and permanent municipal practice carrying the force of law.
For these same reasons, I cannot subscribe to the plurality's narrow and overly rigid view of when a municipal official's policymaking authority is "final." Attempting to place a gloss on Pembaur's finality requirement, the plurality suggests that whenever the decisions of an official are subject to
Accordingly, I cannot endorse the plurality's determination, based on nothing more than its own review of the City Charter, that the Mayor, the Aldermen, and the CSC are the only policymakers for the city of St. Louis. While these officials
This analysis, however, turns a blind eye to reality, for it ignores not only the lower court's determination, nowhere disputed, that CSC review was highly circumscribed and deferential, but also the fact that in this very case the CSC refused to judge the propriety of Hamsher's transfer decision because a lateral transfer was not an "adverse" employment action falling within its jurisdiction. Nor does the plurality account for the fact that Hamsher's predecessor, Donald Spaid, promulgated what the city readily acknowledges was a binding policy regarding secondary employment;
Finally, I think it necessary to emphasize that despite certain language in the plurality opinion suggesting otherwise, the Court today need not and therefore does not decide that a city can only be held liable under § 1983 where the plaintiff "prove[s] the existence of an unconstitutional municipal policy." See ante, at 128. Just last Term, we left open for the second time the question whether a city can be subjected to liability for a policy that, while not unconstitutional in and of itself, may give rise to constitutional deprivations. See Springfield v. Kibbe, 480 U.S. 257 (1987); see also Oklahoma City v. Tuttle, 471 U.S. 808 (1985). That question is certainly not presented by this case, and nothing we say today forecloses its future consideration.
For the reasons stated above, I concur in the judgment of the Court reversing the decision below and remanding the case so that the Court of Appeals may determine whether respondent's layoff resulted from the actions of any improperly motivated final policymakers.
If this case involved nothing more than a personal vendetta between a municipal employee and his superiors, it would be quite wrong to impose liability on the city of St. Louis. In fact, however, the jury found that top officials in the city administration, relying on pretextual grounds, had taken a series
In order to explain why I believe that affirmance is required by this Court's precedents,
The city of St. Louis hired respondent as a licensed architect in 1968. During the ensuing decade, he was repeatedly
Thereafter, on two occasions he gave public testimony that was critical of official city policy. In 1980 he testified before the Civil Service Commission (CSC) in support of his successful appeal from a 15-day suspension. In that testimony he explained that he had received advance oral approval of his outside employment and voiced his objections to the requirement of prior written approval.
In 1981 respondent testified before the Heritage and Urban Design Commission (HUD) in connection with a proposal
Defendant Kindleberger made the same point:
After this testimony respondent was the recipient of a series of adverse personnel actions that culminated in his transfer from an important management-level professional position to a rather menial assignment for which he was "grossly over qualified," 3 id., at 1-80, and his eventual layoff.
Thus, evidence in the record amply supports the conclusion that respondent was first transferred and then laid off, not for fiscal and administrative reasons, but in retaliation for his public testimony before the CSC and HUD.
The record contains a good deal of evidence of participation in the constitutional tort by respondent's superiors at CDA, by those directly under the Mayor, and perhaps by the Mayor himself.
In the trial court there was little, if any, dispute over the governing rules of law. In advance of trial, the city filed a
The jury obviously disagreed with this assessment of the evidence. Moreover, the judge denied that motion, initially and at the close of all evidence, as well as the city's motion for a judgment notwithstanding the verdict.
Finally, the ultimate instruction to the jury on the issue of municipal liability was in fact proposed by the city's attorney, as the plurality acknowledges, ante, at 119; see Brief for Respondent 48; Reply Brief for Petitioner 6:
In my opinion it is far too late for the city to contend that the jury instructions on municipal liability were insufficient or erroneous.
Apparently acknowledging that this case cannot be decided on the basis of any possible error in any of the jury instructions, the plurality views petitioner's motions for summary judgment and a directed verdict as raising and preserving a legal question concerning the standard for determining municipal liability. Ante, at 120. But these motions did not raise any legal issue that was disputed. It is most unfair to permit a defeated litigant in a civil case tried to a verdict before a jury to advance legal arguments that were not made in the District Court, especially when the litigant agrees, both in its motions and proposed instructions, with its opponent's view of the law.
Given the procedural history, it is not only unfair to respondent, but also poor judicial practice, to use this case as a bulldozer to reshape "a legal landscape whose contours are `in a state of evolving definition and uncertainty.' " Ante, at 120 (plurality opinion) (citation omitted). It would be far wiser in the long run simply to resolve the issues that have been properly framed by the litigants and preserved for review. Nevertheless, in view of the fact that the Court has "set out again to clarify the issue that we last addressed in Pembaur," ante, at 124 (plurality opinion), it is appropriate to explain my view of how our precedents in this area apply to this case.
In Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), we held that municipal corporations are "persons" within the meaning of 42 U. S. C. § 1983. Since a corporation is incapable of doing anything except through the agency of human beings, that holding necessarily gave rise to the question of what human activity undertaken by agents of the corporation may create municipal liability in § 1983 litigation.
The first case dealing with this question was, of course, Monell, in which female employees of the Department of Social
In Owen v. City of Independence, 445 U.S. 622 (1980), the Court held that municipalities are not entitled to qualified immunity based on the good faith of their officials. As a premise to this decision, we agreed with the Court of Appeals that the city "was responsible for the deprivation of petitioner's constitutional rights." Id., at 633; see also id., at 655, n. 39. Petitioner had been fired as City Chief of Police without a notice of reasons and without a hearing, after the City Council and the City Manager had publicly reprimanded him for his administration of the Police Department property room. This isolated personnel action was clearly not taken pursuant to a rule of general applicability; nonetheless, we had no problem with the Court of Appeals' conclusion that the action of the City Council and City Manager was binding on the city.
Finally, in Pembaur v. Cincinnati, 475 U. S., at 471, we definitively held that a "decision by municipal policymakers on a single occasion" was sufficient to support an award of damages against the municipality. In Pembaur, a County Prosecutor had advised County Sheriffs at the doorstep of a recalcitrant doctor to "go in and get [the witnesses]" to alleged charges of fraud by the doctor. Id., at 473. Because the Sheriffs possessed only arrest warrants for the witnesses and not a search warrant for the doctor's office as well, the
Since the County Prosecutor was authorized to establish law enforcement policy, his decision in that area could be attributed to the county for purposes of § 1983 liability. As Justice Powell correctly pointed out in his dissent, "the Court . . . focus[ed] almost exclusively on the status of the decision-maker." Id., at 498.
Thus, the Court has permitted a municipality to be held liable for the unconstitutional actions of its agents when those agents enforced a rule of general applicability (Monell); were of sufficiently high stature and acted through a formal process (Owen); or were authorized to establish policy in the particular area of city government in which the tort was committed (Pembaur). Under these precedents, the city of St. Louis should be held liable in this case.
Both Pembaur and the plurality and concurring opinions today acknowledge that a high official who has ultimate control over a certain area of city government can bind the city
Every act of a high official constitutes a kind of "statement" about how similar decisions will be carried out; the assumption is that the same decision would have been made, and would again be made, across a class of cases. Lower officials do not control others in the same way. Since their actions do not dictate the responses of various subordinates, those actions lack the potential of controlling governmental decisionmaking; they are not perceived as the actions of the city itself. If a county police officer had broken down Dr. Pembaur's door on the officer's own initiative, this would have been seen as the action of an overanxious officer, and would not have sent a message to other officers that similar actions would be countenanced. One reason for this is that the County Prosecutor himself could step forward and say "that was wrong"; when the County Prosecutor authorized the action himself, only a self-correction would accomplish the same task, and until such time his action would have countywide ramifications. Here, the Mayor, those working for him, and the agency heads are high-ranking officials; accordingly, we must assume that their actions have citywide ramifications, both through their similar response to a like
Just as the actions of high-ranking and low-ranking municipal employees differ in nature, so do constitutional torts differ. An illegal search (Pembaur) or seizure (Tuttle) is quite different from a firing without due process (Owen); the retaliatory personnel action involved in today's case is in still another category. One thing that the torts in Pembaur, Tuttle, and Owen had in common is that they occurred "in the open"; in each of those cases, the ultimate judgment of unconstitutionality was based on whether undisputed events (the breaking-in in Pembaur, the shooting in Tuttle, the firing in Owen) comported with accepted constitutional norms. But
Thus, holding St. Louis liable in this case is supported by both Pembaur and Owen. We hold a municipality liable for the decisions of its high officials in large part because those decisions, by definition, would be applied across a class of cases. Just as we assume in Pembaur that the County Prosecutor (or his subordinates) would issue the same break-down-the-door order in similar cases, and just as we assume in Owen that the City Council (or those following its lead) would fire an employee without notice of reasons or opportunity to be heard in similar cases, so too must we assume that whistleblowers like respondent would be dealt with in similar retaliatory fashion if they offend the Mayor, his staff, and relevant agency heads, or if they offend those lower ranking officials who follow the example of their superiors. Furthermore, just as we hold a municipality liable for discharging an employee without due process when its city council acts formally — for a due process violation is precisely the type of constitutional tort that a city council might commit when it acts formally — so too must we hold a municipality liable for discharging an employee in retaliation against his public speech
Whatever difficulties the Court may have with binding municipalities on the basis of the unconstitutional conduct of individuals, it should have no such difficulties binding a city when many of its high officials — including officials directly under the Mayor, agency heads, and possibly the Mayor himself — cooperate to retaliate against a whistleblower for the exercise of his First Amendment rights.
I would affirm the judgment of the Court of Appeals.
Michael H. Gottesman, David M. Silberman, and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations et al. as amici curiae urging affirmance.
Mark Stodola and Thomas M. Carpenter filed a brief for the city of Little Rock et al. as amicus curiae.
As JUSTICE STEVENS acknowledges, see post, at 148, n. 1, this Court has repeatedly rejected his interpretation of Congress' intent. We have held that Congress intended to hold municipalities responsible under § 1983 only for the execution of official policies and customs, and not for injuries inflicted solely by employees or agents. See, e. g., Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694 (1978); Pembaur v. Cincinnati, 475 U.S. 469, 478-480 (1986). Like the Pembaur plurality, we think it is self-evident that official policies can only be adopted by those legally charged with doing so. See supra, at 124, and n. 1. We are aware of nothing in § 1983 or its legislative history, and JUSTICE STEVENS points to nothing, that would support the notion that unauthorized acts of subordinate employees are official policies because they may have the "potential" to become official policies or may be "perceived as" official policies. Accordingly, we conclude that JUSTICE STEVENS' proposal is without a basis in the law.
"A. [Mr. Praprotnik] Yes. It was established at $25,000 annually.
"Q. All right. And were employees in CDA permitted to have secondary employment —
"A. Yes, they were.
"Q. And were you required to fill out any particular type of form or document?
"A. Yes. We had to fill out an employee secondary employment questionnaire on an annual basis at the time of our review of our service rating.
"Q. Now, did you fill out a secondary employment form?
"A. Yes, I did, for each year.
"Q. Now. Were you then at any time suspended for a matter involving the secondary employment?
"A. Yes. I was suspended in April, April 29th, 1980, for failure to provide information to my immediate supervisors.
"Q. And did you provide that information to your immediate supervisors?
"A. Yes, I did.
"Q. Did you fill out a form which gave, in detail, the places where you had worked?
"A. Yes. As had always been required in the past, I had filled out the questionnaire and submitted it each year explaining that I had practiced architecture.
"Q. Now, after you were suspended, did you take any action to protest that suspension or petition anybody for correction of the action taken against you?
"A. Yes. I had appealed that to the Civil Service Commission.
"Q. And after the hearing, was there a decision by the Commission?
"A. Yes. The Commission had ruled in favor of myself.
"Q. Could you tell me what your length of suspension was?
"A. It was for fifteen days.
"Q. And were you reinstated with back pay?
"A. Yes, I was." 3 Record 1-45-1-47.
"A. [Mr. Praprotnik to Ms. Ronzio, petitioner's attorney] I had been singled out to provide this information. No one else, as was — in the Civil Service Commission, no one else was asked to do this, to provide the listing of clients. And this was — and I had indicated the reason for that, because of the standards of ethical practice." 4 id., at 2-35.
"A. [Mr. Praprotnik] This recommendation is — this is October 30th, 1980. This is a recommendation for a two-step decrease in salary.
"Q. Did you ever discuss with Mr. Kindleberger [Director of Planning, CDA] the reason why you were given two ratings on almost the same day, one for no change and one for a two-step decrease?
"A. Yes. I could not understand, you know, with the same evaluation performance being similar, that — at one point the recommendation of a two-step increase — and this occurring shortly thereafter with a two-step decrease.
"Q. All right. What did Mr. Kindleberger say to you about that?
"A. At the time, it was that, `The director, Mr. Spaid [Director, CDA, until April, 1981], is very down on you.' That was his exact words.
"Q. Did he tell you why he was down on you?
"A. He stated that I had lied before the Commission, the Civil Service Commission." 3 id., at 1-54-1-55.
"A. [Mr. Kindleberger to Ms. Ronzio] I guess I was somewhat irritated at the whole process at this point. And I thought that Mr. Praprotnik had gotten an adequate rating and that he was being dealt with fairly and that he was not being as cooperative as he might. I also thought, and still believe, that the process for appealing a rating was one that involved the Department of Personnel looking at the rating and participating in some kind of conciliatory procedures of the kind that were described earlier by Mr. Duffe [City Director of Personnel], whereby an attempt was made to get the individual that was unsatisfied and the supervisor together and get them talking to each other. And that after that, if there was still dissatisfaction, there was a process of going through the Civil Service Commission. And I thought it was inappropriate for Jim Praprotnik and his lawyer to get involved before it got over to the Department of Personnel and I told that to Mr. Brewster [Deputy Director, CDA]." 5 id., at 3-230-3-231.
"Q. [Mr. Oldham] Did Mr. Spaid say something to the effect that he was down on Praprotnik?
"A. [Mr. Kindleberger] That sounds right.
"Q. And that he felt he had not been honest, had not testified honestly at the Civil Service Commission, or words to that effect?
"A. I don't know if Mr. Spaid said it, but I know I felt it at the time." 5 id., at 3-237.
See also 3 id., at 1-57, 1-58, 1-60, 1-66, 4 id., at 2-94, 2-141.
"A. [Mr. Praprotnik] Yes, I do.
"Q. What — could you tell me approximately when this incident occurred?
"A. This was immediately prior to the erection of the rusting steel sculpture which we have right out here on Market Street, the erection of that. And it was a meeting of the Heritage and Urban Design Commission of which I served as liaison from the Community Development Agency.
"Q. Were you requested to testify before the Commission?
"A. Yes, I was requested by the chairperson of that Commission.
"Q. And were you required to make some comment on the Serra sculpture and its appropriateness at that spot?
"A. That's correct. I was. And whether it conformed to the overall plan for the Gateway Mall, the center open space all the way down to the courthouse." 4 id., at 2-3 — 2-4.
"Q. [Mr. Oldham] Do you know anything about the time that Mr. Praprotnik appeared before the Commission in regard to testimony involving the Serra sculpture?
"A. [Ms. Buckley, Chairperson, HUD] Yes, I do because I asked him to attend that meeting of the Commission.
"Mr. Praprotnik appeared and this was the first time I had seen him in this capacity. This was at this committee meeting of the Commission. He stated that the City had been presented the Serra sculpture once before. The people who were presenting it said this was the first time it was being presented to the City.
"Q. Could you describe who was present in the hearing room and the amount of interest there was in regard to the Serra sculpture?
"A. There was a great deal of interest. The hearing room was always filled because there were so many applicants of people [sic] who had projects they wanted to bring. But whenever something came in —
"Q. Was the mayor's office in there, too?
"A. I don't know all the people in the mayor's office but, yes, I knew from the whispering around me and from some of the faces that were familiar that, yes, these were the mayor's people, or at least the City people who came in to watch." 4 id., at 2-88 — 2-90.
"A. [Mr. Praprotnik] Yes. I was called into the office immediately after that meeting the following morning. And together with Mr. Hamsher and also Mr. Kindleberger, was told that certain information that I had stated at that Commission meeting that I should have `muffed it.'
"Q. You shouldn't have —
"A. Meaning that I should have concealed it, you know, from their — from exposure to the Commission.
"Q. What information was Mr. Hamsher talking about?
"A. This was regarding the City's original expenditure of funds for that block amounting to an open space grant of approximately $250,000 to develop the block originally, and the City was going to remove all of that for erection of this rusting steel sculpture.
"Q. Did that discussion result — was that discussion one of the factors that was used in your service rating?
"A. Yes, it was." 4 id., at 2-4 — 2-6.
"Q. [Mr. Oldham] You did rate him on the Serra sculpture?
"A. [Mr. Karetski, Deputy City Planning Director, CDA] That was a factor, yes." 5 id., at 3-45.
"Q. [Ms. Ronzio] [L]et me make a break at this point and ask you about something that happened while Mr. Praprotnik was at the Community Development Agency. There's been some discussion of the Serra sculpture incident?
"A. [Mr. Hamsher] Yes.
"Q. Did you have occasion to reprimand Mr. Praprotnik for something he said concerning the Serra sculpture, the rusting steel sculpture as someone described it, downtown here?
"A. I don't know that reprimand is the right term. I did have a discussion about something that occurred on that sculpture, yes.
"Q. Did you indicate you were displeased with what he had done?
"A. Yes, I did.
"Q. Will you tell us what it was you had the discussion with him about and what you were upset about?
"A. Yes. I read in the newspaper one morning that Mr. Praprotnik was quoted, something about his personal opinion about the merit or lack of merit of the sculpture. And I was concerned about that because a decision had been made by the City administration that we all worked for, that we wanted to recommend — that the City administration wanted to recommend the installation of the Serra sculpture.
"I happened to disagree with the decision myself. I'm not fond of the sculpture and wasn't then. But the mayor was elected by the people and he made the decision. He was going to support the installation of the sculpture.
"Therefore, it was my responsibility and the responsibility of others who worked for my agency to do so as well and not to express personal opinions in public forums about what that sculpture was going to be and what it would look like.
"Q. Did you take any disciplinary actions such as suspension or reduction in pay?
"A. No, I did not. I believe I sent Mr. Praprotnik a note about it to make him understand that I thought this was important, but that's all my recollection was and I had a discussion with him. But I didn't take any personnel action about it. Frankly, I didn't give any further thought to it." 5 id., at 3-179 — 3-181.
"Q. [Mr. Oldham] Did you know that Mr. Praprotnik had been requested to appear before the Heritage and Urban Design Committee?
"A. [Mr. Kindleberger] I think I did.
"Q. Is it an obligation of a City employee who is requested to testify before one of these commissions to enter [sic] honestly and truthfully?
"A. Well, I think the obligation for a senior management individual is to represent fairly the position of his boss which, in our case, happens to be the mayor. And I would — I just think that is something that is appropriate for senior management to do.
"Q. Now, when he was asked whether or not this had been presented to the City before and he said that it had —
"A. Well, obviously, any questions of fact, one should be truthful.
"Q. And if he's asked his professional opinion, what should he do?
"A. Well, if someone is asked their own personal, professional opinion, they should render it. But one has to be awfully careful that you don't somehow imply that is the staff's opinion or that is the agency's opinion. And I think it's a question of judgment, but that is one of the things that senior managers need to have is judgment.
"Q. The mayor was quite upset; wasn't he?
"A. I don't know that for a fact. He never spoke to me about it.
"Q. Isn't it true the Pulitzer family was very interested in this?
"A. The Serra sculpture?
"A. Emily Pulitzer is a person who has long wanted that sculpture.
"Q. She is connected with the Post-Dispatch?
"A. I believe she is married to the publisher." 5 id., at 3-249-3-251.
"A. [Mr. Praprotnik] Yes. [O]n March 23rd, I was called to the director's office, Mr. Frank Hamsher, and was told that I would be transferred to the Heritage and Urban Design Commission. And this was two weeks prior to the pending layoff recommendations at the agency."
"Q. Did [Mr. Jackson, Commissioner, HUD] make any statement to you as to whether he had sought your services?
"A. Yes. He stated that he didn't want me in the first place, that he had requested a historic preservation planner for that position, which was several grades below my management position level."
"Q. Now, just prior to [the then unknown attempt to fire respondent, one year prior to his actual dismissal], did you receive a rating?
"A. Yes, I did, in October .
"Q. Let me hand you that rating, which is Plaintiff's Exhibit 92, and ask you to look at the second page thereof. In that rating, does it make any statement about your qualifications or your overqualifications for the position?
"A. Yes. It states in the paragraph related to `Have the duties in the employee's position changed significantly during this rating period,' it states — Mr. Jackson places in this space: `Mr. Praprotnik's former position was as a supervisor at CDA . . . which included administration of his unit and supervision of staff. In his new capacity here, there is no supervision of any professional staff and, in fact, the original vacancy was for an historic preservation planner I or II and which is intended to function as a junior staff position to existing staff and for which Mr. Praprotnik is grossly overqualified.' " 3 id., at 1-66-1-67, 1-71, 1-79-1-80.
"Q. [Mr. Oldham] Would you describe [Mr. Praprotnik's tasks at HUD] as menial?
"A. [Ms. Buckley] I would." 4 id., at 2-88.
"A. [Mr. Brewster] That is standard operating procedure, I think, in any management procedure. Certainly, at CDA it was.
"Q. So this [Mr. Kindleberger's telling Mr. Brewster not to discuss the rating with Mr. Praprotnik] was unusual?
"A. I would say highly unusual.
"Q. After you made a study of the evaluation, what determinations did you make as to whether or not it had been properly and fairly done?
"A. As I recall, I found several discrepancies for which I did write a memo of finding on — I don't have it.
"Q. Can you recall, Mr. Brewster? We have enough exhibits. If you can recall from your own memory?
"A. Well, the substance of it, as I recall, would be that the so-called standards that they were rating Mr. Praprotnik on were standards that could not even be measured, either quantifiably or qualifiably. So, therefore, there were not, in any actuality, they did not have any merit to them.
"And, as I recall, the two, Karetski, who was rater number one, and Kindleberger, who was rater number two, actually collaborated in the rating prior to the rating being done, which, in my estimation, was completely in violation of the City rules and regulations which specifically state that rater number one is not supposed to be influenced in his rating by any person." 4 id., at 2-106-2-107, 2-109.
"A. [Ms. Buckley] I'll have to go back a minute to the Serra sculpture incident. After that meeting, the major meeting where the Serra sculpture was approved by the Commission, unfortunately, it must have been two or three weeks or a month or so later that Mr. Jackson called me and said that Mr. Praprotnik was going to come over to the Heritage office.
"He expressed, I guess I would say, disappointment and displeasure at this, saying there was no need.
"On a separate occasion shortly after that, Mr. Killen also called me and said Mr. Praprotnik was coming and there was no reason for him to come." 4 id., at 2-90.
"A. [Mr. Praprotnik] The total budget for the year was $144,339.
"Q. And what is the total budget for ?
"A. The total budget is a hundred and fifty thousand.
"Q. So there's an increase of approximately $6,000?
"Q. Now, what was the reason given for your layoff?
"A. Insufficient funds.
"Q. Is that the only reason that they gave in your notice?
"A. Yes." 3 id., at 1-83, 1-85.
"Plaintiff written reprimand contrary to thrust of the decision of the Civil Service Commission. That's in evidence. That's true. Required plaintiff to make secondary employment reports that weren't required of others. There's evidence to that effect. Reduced his staff from nine to three. There's evidence of that allegation. Given plaintiff a low service rating on October 1st. There's evidence of that. Transferring him to a nonmanagement, nonsupervisory junior staff position. There's evidence to that. Failure to establish goals against which he could be measured. All of these things. Finally, we say laying plaintiff off from a position on December 30th for the pretextual reason of lack of funds and a furtherance of the conspiracy to remove plaintiff from the Civil Service Commission. There's evidence of that, that he was laid off, that the reason was pretextual." 5 id., at 3-26-3-27.
"A. [Mr. Praprotnik] Yes.
"Q. Now, in order to get a change of budget, who had to be involved in that?
"A. That would involve the Board of Estimate and Apportionment, including the Mayor, the president of the Board of Aldermen, and the budget director — I'm sorry, the comptroller.
"Q. The comptroller. Those three people?
"Q. They're all high officials of the City.
"A. That's correct." 3 id., at 1-74-1-75.
"Q. [Ms. Ronzio] [A]fter you got transferred to Heritage and Urban Design in April or May of '82, are you claiming that Frank Hamsher did anything to injure or damage you thereafter once you were transferred out from under his supervision?
"A. [Mr. Praprotnik] Yes, I am.
"Q. All right. What would that be?
"A. That would be the control through the mayor's office of the budget situation within the Community Development Agency and the recommendations of the staffing and the funding coming to the Heritage and Urban Design Commission.
"Q. All right. Do you know what Mr. Hamsher's position was after you were transferred to Heritage? Did he remain director of CDA?
"A. He was director of CDA, yes, for a period of time after that.
"Q. For how long? Do you know?
"A. He had implemented the layoff [of various CDA personnel at the time respondent was transferred to HUD].
"Q. For how long? He implemented the layoff; that would have been in May. How long thereafter did he continue as director?
"A. I don't know when he was switched to the mayor's office.
"Q. Then he went to the mayor's office as an assistant; right?
"A. That's correct.
"Q. As an executive aide.
"You are claiming that from the mayor's office he controlled Heritage Department's budget?
"Q. And how did that affect you?
"A. It affected me by I was laid off for lack of funds to that agency.
"Q. So how did Mr. Hamsher do that?
"A. By control through the Community Development Agency and recommendations that could be made to its, you know, director at this time.
"Q. He was not director of Community Development Agency. Are you still maintaining that he controlled their budget?
"A. I'm saying that he influenced their budget. The mayor's office played a very strong control within the influence of various City departments.
"Q. [W]hat are you claiming, if anything, that Mr. Kindleberger did to damage you after you were out from under his supervision?
"A. He had influenced the direction of the demise of duties, all the way up to that time, with the planner options that he had made available to Mr. Hamsher.
"Q. I'm asking after you transferred.
"A. After the transfer? Yes, he could still play a strong role because he was retained within the mayor's group and made recommendations to the Board of E&A that could have influenced the funding of our agency, the Heritage and Urban Design Commission.
"Q. You're using the word `could.' Do you know for a fact that he did any of these things?
"A. Well, the budget had to go through the Community Development Agency, the approval. I'm saying he could have had that influence.
"Q. All right. So you don't know for a fact that he did do anything?
"A. I would say it was very likely that he would have had that influence."
"Q. [H]ow about Deborah Patterson [Director, CDA], who is also a defendant? Now, she never supervised you at all; is that correct? You were never under her supervision?
"A. She did not, that's correct.
"Q. She became director of CDA after you had already left the agency?
"A. That is correct.
"Q. What, if anything, are you claiming that she did to damage you, to injure you?
"A. There were meetings between my immediate supervisors at Heritage and Urban Design Commission and Deborah Patterson and CDA officials. So that influenced the budget going through and having to be approved by the Community Development Agency and also going through the mayor's office and the Board of E&A." 4 id., at 2-75 — 2-77, 2-81 — 2-82.
"Q. [Ms. Ronzio] [W]hy do you think [Mr. Praprotnik] wasn't being treated fairly?
"A. [Mr. Zelsman, architect colleague of respondent at CDA] In my opinion, it was someone above him who did not want him in that position." 4 id., at 2-97-2-98.
[From deposition; read at trial] "Q. [Mr. Oldham] Were there meetings in the mayor's office which involved you and his advisors and the mayor concerning the function and purpose of CDA?
"A. [Mr. Hamsher] I have had countless such meetings.
"Q. [Mr. Praprotnik] hadn't requested the transfer?
"Q. Had Mr. Jackson requested the transfer?
"Q. It was done on your initiative then?
"A. It was done upon approval by the mayor of the transfer. It was done by me, Mr. Jackson, and Mr. Nash [City Director of the Department of Public Safety], all of whom assigned the appropriate paperwork to transfer Mr. Praprotnik.
"Q. Did Mr. Nash request the transfer?
"A. No, but he approved it.
"Q. So nobody from Heritage and Urban Design requested the transfer?
"A. That's correct.
"Q. And it was a decision that was made in the mayor's office and carried out by you; is that correct?
"A. It was a recommendation I made to the mayor, and the mayor concurred with it, and Mr. Nash and Mr. Jackson and myself carried it out." 4 id., at 2-174, 2-177 — 2-178.
[From deposition; read at trial] "Q. [Mr. Oldham] Who would have the authority to take functions out of one appointing authority and move them over to another appointing authority? Who would have that authority?
"A. [Mr. Duffe] Well, it depends on the situation. The Board of Estimate and Apportionment in some cases; in other cases it would be the mayor to the best of my knowledge." 4 id., at 2-180.
[From deposition; read at trial] "Q. [Mr. Oldham] Anybody else other than Mr. Hamsher, and yourself, and the mayor, who had the final decisions on these matters [transfer of functions between agencies]?
"A. [Mr. Edwards, City Executive Director of Development] Well, particularly I guess, the mayor had the final decision. As I recall the recommendations of Mr. Hamsher were adopted, you know, pretty generally. I don't remember any major divergence from his recommendation." 4 id., at 2-185-2-186.
"Q. [Ms. Ronzio] What do you do, Mr. Hamsher? What is your occupation?
"A. [Mr. Hamsher] I am the counsel for development in the mayor's office, City of Saint Louis.
[Discussion of CDA's 1982 layoffs] "Q. Did you voice your concerns to the mayor?
"A. Oh, yes.
"Q. What was his reaction to your concerns?
"A. He listened. He and I discussed it back and forth. And he was elected by the people so he made the decision.
"Q. He said `Go ahead and lay off'?
"A. Yes." 5 id., at 3-134, 3-167.
"Q. [Mr. Oldham] [Y]ou indicated that you work for the mayor; is that correct?
"A. [Mr. Hamsher] Yes.
"Q. And doesn't the mayor keep a pretty tight rein on operations within the City?
"Q. Isn't it fair to say, Mr. Hamsher, that you initiated the [transfer], that you had sort of recommended it through the mayor's office, sort of pushed to get it done?
"A. I wouldn't say I pushed to get it done. I recommended it to the mayor. The mayor made a decision. And when the mayor makes a decision, all of us who work for him try to carry it out." 5 id., at 3-184 — 3-185, 3-200.
"Don Spaid is not a defendant in this case. Okay?
"Who laid Jim Praprotnik off? Who really laid him off? Who signed off on the form? Rob Killen signed the form. At the time Mr. Praprotnik was at Heritage and Urban Design and got laid off, Rob Killen was his appointing authority. It was his decision. He's the one who prepared that budget that went to Deborah Patterson.
"Who else is not a defendant? Rob Killen's boss, Tom Nash. Tom Nash allegedly approved it and went along with Rob Killen. Do you see him here? Nope. Let's hang it on these guys." 6 id., at 4-50 — 4-51 (emphasis added).
The concurrence also states that the record fails to provide "sufficient evidence of complicity on the part of other municipal policymakers such that we may sustain the jury's verdict against petitioner on a conspiracy theory neither espoused nor addressed by the court below." Ante, at 142, n. 5. But we are reviewing the Court of Appeals' judgment, not its opinion, and however flawed the latter, the former must be sustained if sufficient evidence exists to support, under a proper view of municipal liability, the verdict actually rendered. Moreover, as I discuss in greater detail in Part II, the jury was given wide rein to examine the conduct of the city's officials and to conclude whether or not high officials retaliated against respondent's exercise of his constitutional right to freedom of speech. The lengthy quotations from the record make it clear that sufficient evidence was introduced to support the jury's verdict.
"In the instant case, Plaintiff has failed to even allege the existence of any such [municipal] policy. In fact, Plaintiff refers to City `policy' only in one instance in his complaint — at paragraph 29(c), wherein he claims the City's layoff policy . . . was not followed. In the absence of allegations of impermissible policy, or of facts indicative that such policy exists, the City, itself, may not be held liable." Memorandum in Support of Motion for Summary Judgment or, in the Alternative, for Judgment on the Pleadings 16, Reply Brief for Petitioner 5 (emphasis in original).
This argument, like all of petitioner's contentions in the trial court on the subject of municipal liability, was addressed to the sufficiency of respondent's factual support for binding the city, not to any legal issue regarding who could and who could not bind the city. The District Court, indeed, initially granted summary judgment for the city on the ground that "the Court is unable to discern any suggestion that defendants' allegedly wrongful actions were in accordance with city policy." 1 Record 126. But after receiving respondent's motion for reconsideration, accompanied by his affidavit, discussed in the text, supra, the District Court reversed itself and denied the city's motion.
"At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury. The court, at its election, may instruct the jury before or after argument, or both. No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury." (Emphasis added.)
"An isolated incident of illegal conduct on the part of a municipality's agents, servants or employees is not sufficient to establish a governmental custom, usage or official policy such as would give rise to liability on the part of a municipality pursuant to 42 U. S. C. § 1983." Instruction No. A, App. 127.
The Court of Appeals properly upheld the trial court's rejection of this instruction, see Pembaur v. Cincinnati, 475 U.S. 469 (1986), and petitioner does not take issue with this holding.