Caddo Parish School Board v United States Brief in Opposition to Certiorari

    No. 86-772

In the

ftopmsu (Eimrt of H?r lu llt h  States
O ctober Term, 1986

Ct.Tr of St. L ouis.

James II. P raprotnik,

ON WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOB THE EIGHTH CIRCUIT

BRIEF FOR RESPONDENT

C h a r l e s  B .  O l d h a m *

317 N. lit] i Street 
Suite 1220
St. Louis. Missouri 63101 
(314) 231-0464

J ulius L b'Vonnb Chambers 
E ric Schnapper

NAACP Legal Defense & 
Educational Fund 

16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Attorneys for Respondent

•Counsel of Record

Petitioner.

Respondent.



QUESTIONS PRESENTED

(1) Was the jury correctly in­
structed regarding the scope of municipal 
liability under Monell v. New York City 
Department of Social Services, 436 U.S. 
658 (1978)?

(2) Was there sufficient evidence 
to support the jury verdict imposing 
liability on the defendant city?

(3) Was the jury's verdict against 
the defendant city inconsistent with its 
verdict in favor of the three individual 
defendants?

l



Page

TABLE OF CONTENTS
Questions Presented ...........  i
Table of Authorities ..........  iv
Statement of the Facts ........  1

(1) Respondent's Con­
stitutionally Pro­
tected Conduct ......  4

(2) The Adverse Per­
sonnel Actions,
1980-83 ............  12

(3) The Defense of the
Individual Defen­
dants ................  27

Summary of Argument............  34
Argument ....................... 38
I. Where a Jury has Found 

a City Liable Under 
Monell, the Role of an 
Appellate Court is 
Limited to Reviewing
Challenged Instructions 
and Assessing the Suffi­
ciency of the Evidence....  38

li



Page

II. The District Court Properly
Instructed the Jury Re­
garding the Scope of 
Mmunicipal Liability
Under Monell .............  48

III. The Evidence was Suffi­
cient to Support the
Jury's Verdict............  81

A. The Constitutional
Standard ..........  81

B. The Trial Court
Context ...........  91

C. The Relevant Evi­
dence .............  96

IV. The Jury Verdict Against 
the City Was not Incon­
sistent With the Jury's 
Verdict in Favor of the 
Three Individual De­
fendants .................  104

CONCLUSION ..................... 109

iii



Page

TABLE OF AUTHORITIES

Anderson v. City of Bessemer 
City, 470 U.S. 564
(1985) ..............  84-5,91,94

Bailey v. Central Vermont,
R. Co., 319 U.S. 350 
( 1943) .................... 82

Baltimore & Ohio R.R. Co. v.
Groeger, 266 U.S. 521 
( 1 925) .................... 86

Brandon v. Holt, 469 U.S. 464
( 1985) .................... 67,76

Brown v. Board of Education,
347 U.S. 483 ( 1954) ....... 71

Corinne Mills, etc., Co. v.
Toponce, 152 U.S. 405 
( 1 894 ) .................... 86,87

Dick v. New York Life Insurance 
Co., 359 U.S. 437
(1959) .................... 90

Dyer v. MacDougall, 201 F.2d 265
(2d Cir. 1962) ............  84

Ellis v. Union Pacific R. Co.,
329 U.S. 649 ( 1 947) ....... 82

Fishman v. Clancy, 763 F.2d
485 ( 1st Cir. 1985) .......  84

IV



Page
Great Northern Railway Co. v.

Donaldson, 246 U.S. 121
(1918) .................... 86

Gunning v. Cooley, 281 U.S.
90 (1930) ................. 86,87

Hepburn v. Dubois, 37 U.S.
345 ( 1838) ................ 86

Knapp v. Whitaker, 757 
F.2d 827 (4th Cir.
1985) ..................... 84

Lavender v. Kurn, 327 U.S.
645 (1 946) ...............  83,86

Meritor Savings Bank v.
Vinson, 91 L.Ed.2d
49 ( 1 986) ................  57

Monell v. New York City
Department of Social
Services, 436 U.S. 658
(1978) .................... passim

Monroe v. Pape, 365 U.S. 167
(1961) ................... 36,79-80

Oklahoma City v. Tuttle, 85
L.Ed.2d 791 (1985) ....... 39,40,47

Owen v. City of Independence,
445 U.S. 622 (1 980 ) ......  71-72

Parklane v. Shore, 439 U.S.
322 ( 1 979) ...............  88

v



Page
Patton v. Texas & Pacific 

Railway Co., 179 U.S.
658 ( 1901 ) ...............  90,91

Pembaur v. City of Cincin­
nati, 89 L.Ed.2d 452 
(1986) ..............  35,49,60-61

Pleasants v. Font, 89 U.S. 116
( 1875) .................... 88

Pullman Standard Co. v. Swint,
456 U.S. 273 ( 1982 ) ......  42

Sioux City & Pacific R.R. Co. 
v. Stout, 84 U.S. 657 
( 1874) .................... 85

Slocum v. New York Life
Insurance Co., 228 U.S.
364 ( 1 91 3) ...............  87

Springfield v. Kibbe, 94 L.Ed.2d
293 (1987) ..........  40,47,67,74

Story Parchment Co. v. Paterson 
Parchment Co., 282 U.S.
555 ( 1931 ) ...............  91

Tennant v. Peoria & Peking 
Union R. Co., 321 U.S.
29 (1 944) ................  81 ,85

Tennessee v. Garner, 85 L.Ed.2d
( 1985) .................... 67

United States Postal Service v.
Aikens, 469 U.S. 711 
( 1983) .................... 88

vi



Webb v. Illinois Central Rail­
road Co., 352 U.S. 512
( 1957) .................... 87

White v. Regester, 412 U.S.
755 ( 1973) ...............  44

Wilkerson v. McCarthy, 336
U.S. 53 ( 1949) ...........  81 ,87,90

Other Authorities
First Amendment, United States

Constitution .............  3
Seventh Amendment, United States

Constitution ......  39,41-42,81-91
42 U.S.C. § 1983...............  48,80
Title VIII, Civil Rights Act

of 1964 ..............    42
1871 Civil Rights Act .........  78
Rule 51, Federal Rules of

Civil Procedure ..........  34,41
Rule 52, Federal Rules of

Civil Procedure ..........  90
J. Lobell, Civil Rights

Litigation Attorney Fees
Annual Handbook, v.2
(1986) .................... 67

T.A. Green, Verdict According
to Conscience (1985) .... . . 89

V l l



Page
"Civil Rights Litigation After 

Monell", 79 Col. L. Rev.
213 (1979 ) ...............  60,80

Congressional Globe, 42nd
Cong., 1st Sess. (1871) ... 79

viii



1

STATEMENT OF THE FACTS 
Respondent James Praprotnik, a 

licensed architect, was originally hired 
by the City of St. Louis in 1968. (Tr. 
1:25-26). During the decade that fol­
lowed respondent rose rapidly through the 
ranks of civil service employees, re­
peatedly rated as "superior" by his 
supervisors, and awarded double step 
increases in his salary. (Tr.1:37-43, 
49-51). By 1980 Praprotnik was the 
Director of Urban Design in the city's 
Community Development Staff; in that 
management position he supervised a staff 
of architects and other professionals, 
(Tr. 1:30-31, 2:174, 3:144), and met and
worked directly with city officials at 
the highest levels. Respondent's
outstanding abilities have never been in 
dispute in this litigation; on the



2
contrary, the city attorney insisted on 
stipulating to respondent's abilities, 
and repeatedly objected to the introduc­
tion of any further evidence on the 
subject. (Tr. 2:93, 140-41.)

Despite respondent's unquestioned 
abilities, there occurred in the spring 
of 1980 a drastic change in the manner in 
which St. Louis' highest ranking offi­
cials treated Praprotnik. During a 44 
month period from April 1980 until 
December 1983 Praprotnik was repeatedly 
suspended and reprimanded, and given 
"inadequate" ratings. In April 1982, 
Praprotnik was transferred to an essen­
tially clerical position on the staff of 
the Heritage and Urban Design Commission, 
and respondent's own position at CDA was 
given to one of his subordinates. 
Shortly after Praprotnik was transferred, 
HUD officials began a series of efforts



3
to lay him off on the ground that he was 
overqualified for his new position. On 
December 23, 1983, respondent was noti­
fied that he was being laid off effective 
December 30. (Tr. 1:84, 85, 2:9-11).
The existence of this 4 year pattern of 
adverse personnel actions was uncon­
tested; as the city correctly observed, 
"[w]hat was hotly disputed at trial was 
the state of mind of the ... City 
officials"1 responsible for those 
actions.

Respondent alleged, and the jury 
concluded, that respondent's transfer and 
layoff were motivated by a desire to 
retaliate against him for certain actions 
protected by the First Amendment. The 
city has never denied that the actions 
which allegedly triggered the retaliation 
were protected by the First Amendment.

1 Id., pp. 17, 30-38.



4
In the court of appeals the city argued 
there was insufficient evidence to 
support a finding of any illicit retalia­
tory motive,2 but the city chose not to 
seek review of that factual issue by this 
Court. The questions presented by the 
petition concern whether the city can be 
held liable for any unconstitutional 
purposes which may have motivated 
respondent's superiors.

(1) Respondent's Constitutionally Protected Conduct
The series of events which cul­

minated in respondent's dismissal began 
with a controversy regarding whether the 
Director of the Community Development 
Agency could require prior approval 
whenever an agency employee wished to 
engage in any after-hours employment. A

2 Brief for Defendant-Appellant City of St. Louis, No. 85-1145-EM (8th Cir.) p. 3.



5
pre-existing city-wide personnel practice 
required all municipal employees to fill 
out a form disclosing any outside employ­
ment; an architect who had private 
clients was obligated simply to state 
that he or she was "self employed." (Tr. 
2:36-37, 118, 122). Beginning around 
1978, however, CDA Director Donald Spaid 
began to insist that any professional 
employee, such as an architect, also 
obtain prior agency approval of every 
specific client for whom that employee 
proposed to do any work. (Tr. 2:37-38, 
139) . Respondent Praprotnik and other 
CDA employees objected to this new 
requirement on two grounds. (Tr. 2:30, 
102, 3:217-18). First, they insisted 
that any such requirement be put in 
writing; the CDA Director for unexplained 
reasons adamantly refused to do so. (Tr. 
3:235; cf Tr. 2:103, 118, 140). Second,



6
respondent and other employees objected 
that the prior approval requirement was 
an unwarranted intrusion on their privacy 
and personal conduct. (Tr. 2:34, 3:217-
18) .

By the spring of 1980 this contro­
versy had been festering for two years. 
On April 8, 1980, the agency directed
respondent to submit a written list of 
every person for whom he had done any 
architectural work since November, 1978. 
(Tr. 2:34). No other agency employee had 
ever been required to submit such a 
written list. (Tr. 2:34-35, 3:235-36).
The statement submitted by respondent 
listed four small projects for personal 
friends and acquaintances, such as 
designing a room addition for his father- 
in-law. (Exhibits 1-1, 1-3). CDA
officials never suggested there was 
anything improper in any of these



7
projects, or that any of them involved 
any conflict of interest. Nevertheless, 
on April 29, 1980, the agency suspended 
respondent for two weeks without pay, 
alleging that he had failed to obtain the 
required prior approval for one or more 
of the projects. (Tr. 1:46, 2:31, 
3:216). Respondent insisted that he had 
indeed sought and obtained such advance 
approval. (Tr. 1:48, 2:32, 37, 39).

Respondent appealed his suspension 
to the city Civil Service Commission. 
Respondent and his superiors gave 
conflicting testimony before the Commis­
sion regarding whether the four projects 
had been disclosed and approved in 
advance. The Commission evidently chose 
to credit respondent's testimony; the 
Commission found no violation of the CDA 
prior approval policy, reversed respon­
dent's suspension and awarded him back­



8
pay. (PX 25; Tr. 1:47, 3:220). The 
Commission criticized respondent only for 
failure to seek a definitive explanation 
of the CDA disclosure and approval 
policy. (Id.)

Both CDA Director Spaid, and Charles 
Kindelberger, the CDA Director of Urban 
Design, were angered by the appeal and by 
respondent's testimony. Respondent 
testified at trial that Kindelberger had 
warned him of Spaid's hostility.3 
Kindelberger himself conceded that both 
he and Director Spaid were angered by

3 Tr. 1:54-55:
"Q ... What did Mr. Kindelberger say 

to you about that?
A. [Respondent] At the time, it was 

that 'the director, Mr. Spaid, 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".



9
what had occurred during the Civil 
Service Commission appeal:

"Q. Did Mr. Spaid say something to 
the effect that he was down on 
Praprotnik?

A. [Kindelberger] 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.

Q. That's what you felt that at
the time?

A. Yeah.
Q. So that you were then con­

cerned, too, because the ruling 
had come out against you; 
hadn't it?

A. Well, I didn't agree with the 
ruling."

(Tr. 3:237). Kindelberger made that 
reference to the disputed Civil Service 
Commission appeal and testimony when 
Praprotnik inquired why CDA subsequently



10
attempted to reduce his salary. (Tr. 
1:54) .

The second incident also involved 
high level umbrage over testimony given 
by respondent. In the fall of 1981 the 
city was considering acquiring a sculp­
ture by the controversial modern sculptor 
Richard Serra. Acquisition of the sculp­
ture was strongly favored by the Mayor 
and by some influential private citizens, 
including Emily Pulitzer, the wife of the 
owner of the St. Louis Post Dispatch. 
(Tr. 3:180, 250). The Heritage and Urban 
Design Commission called respondent to 
testify about the proposal. (Tr. 2:4, 
2:89). In his testimony respondent
disclosed that, contrary to the represen­
tations of the sculpture's proponents, 
the sculpture at issue had been offered 
to and rejected by an earlier city 
administration. (Tr. 2:89). Respondent



11
also revealed that placement of the 
sculpture would require demolition of 
structures recently erected by the city 
at a cost of $250,000. (Tr. 2:5).

These disclosures triggered what one 
witness described as a "flap" within CDA, 
where respondent then worked. (Tr.
2:95). According to respondent he was 
admonished by Director Hamsher that that 
information should have been kept 
secret from HUD:

Q. ... Now, after you testified 
before the Commission, did you 
have any conversation with Mr 
Hamsher?

A. Yes. I was called into the 
office immediately the follow­
ing morning. And together 
with Mr. Hamsher and also Mr. 
Kindelberger, was told that 
certain information that I had 
stated at the Commission 
meeting that I should have 
'muffed it.'

Q. You shouldn't have.
A. I should have conceal it, you 

know, from them -- from 
exposure to the Commission.



12

(Tr. 2:4-5). The mayor's staff was 
present when respondent testified before 
the Commission, (Tr. 2:90), and there was 
some indication that the Mayor himself 
was displeased by the disclosures which 
respondent had made. (Tr. 3:250). 
Respondent suggested at trial that the 
hostile reaction to his testimony 
regarding the Serra sculpture was rooted 
in part in lingering anger over his Civil 
Service Commission testimony. (Tr. 2:5; 
4:29). A CDA official subsequently 
admitted giving respondent a lower job 
performance evaluation because of the 
Serra sculpture incident. (Tr. 3:52).

(2) The Adverse Personnel Actions.
1980-83

Because the incidents leading to 
respondent's layoff spanned almost four 
years, and because respondent was as of 
1980 a senior civil servant, a large



St. Louis Officials Involved 
in Actions Against Respondent Praprotnik

Agency
Board of Estimate 

and Apportionment

Mayor's Office

Department of 
Personnel

Division of the 
Budget

Off ic ial 
Mayor Schoemehl

Board of Alderman 
President Thomas 
Zych

Comptroller Paul 
Berra

Frank Hamsher, Deputy 
Director of 
Development (after 
June, 1982)

John Temporiti, 
Administrat ive 
Assistant to the 
Mayor

William Lynn Edwards, 
Executive Director 
of Development

Director of Personnel 
William Duffe

City Budget Director 
Jack Weber

Agency
Community Develop­
ment Agency

Heritage and Urban 
Design 
Commiss ion

Department of 
Public Safety

Off ic ial
Director Donald Spa id 

(until April, 1981 )
Director Frank 

Hamsher (April,
1981 to June, 1982)

Director Deborah 
Patterson (after 
June, 1982)

Charles Kindelberger; 
Director of Urban 
Des ign

Alvin J. Karetski, 
Deputy City 
Planning Director

Commissioner Henry 
Jackson (until 
February, 1983)

Commissioner
Rob Killen (after 
February, 1983)

Director Thomas Nash



13
number of high level city officials 
participated in the various adverse 
actions of which respondent complained at 
trial. We set forth on the opposite page 
a list of the 16 officials involved, 
together with the office or agency in 
which they served. That list includes 
the city's three highest elected offi­
cials, among them the Mayor, eight agency 
directors or commissioners, and three 
members of the Mayor's personal staff. 
Director Nash was also a member of Mayor 
Schoemehl's cabinet. (Tr. 1:78). Among 
these 16 individuals, however, only three 
were named defendants when the case came 
to trial; the city successfully opposed 
joinder of several additional defendants, 
including the Mayor,4 and former Commis­
sioner Jackson had left the state and 
could not be served. (J. App. 2, N.R. 4,

4 See J. App. 5, 22-23.



14
5) . The fact that many of the allegedly 
responsible officials were not among the 
named defendants is of considerable 
importance in understanding the jury's 
verdict and the issues on appeal.

Respondent Praprotnik's difficulties 
began shortly after he testified before 
the Civil Service Commission. Earlier, 
in April 1980, respondent had received 
his regular annual performance evalua­
tion; respondent was rated "good" and 
recommended for a two step salary 
increase. (Tr. 2:42, 3:97; PX 18). 
Subsequently, however, Director Spaid 
ordered that respondent be given a new 
interim rating. (Tr. 3:101, 226). As a 
result of this special October 1980 
rating, CDA proposed to reduce respon­
dent's salary by two steps. (Tr. 1:54, 
2:43). Defendant Kindelberger admitted 
that the disputed civil service appeal



15
had been discussed when Praprotnik was 
re-rated in October 1980. (Tr. 3:236- 
37) . There was conflicting evidence 
regarding which official was responsible 
for the salary reduction. The actual 
directive was signed by defendant 
Kindelberger, the CDA Director of Urban 
Design. (DX J-2) . At the trial, how­
ever, Kindelberger insisted that Director 
Spaid personally had ordered the salary 
reduction.5 Respondent appealed the 
salary reduction to the Department of 
Personnel; Personnel Director Duffe 
approved a salary cut, but limited the 
reduction to a single step. (Tr. 3:104)

5 Tr. 3:226:
"Q. Did Mr. Spaid direct you to reduce 

him by two steps?
A. [Kindelberger) Yes, he did.
Q. Did he state why?
A. Well, I think he just —  I don't 

remember his specific concerns or 
the specific working but he just 
said that was the way it was going 
to be."



16
On October 30, 1980, the Civil

Service Commission issued its order
overturning respondent's two week
suspension; although the Commission found 
no violation of CDA policies, the 
Commission authorized CDA to reprimand 
respondent "for his failure to secure a 
clear understanding" of what those 
policies were. (Tr. 3:221). On January 
13, 1981, defendant Kindelberger issued 
to respondent a written reprimand "for 
your having entered into consulting 
arrangements over the last several years 
without proper authority". (Tr. 3:238). 
This was precisely the allegation which 
the Civil Service Commission had refused 
to sustain. Kindelberger admitted at 
trial that the substance of the reprimand 
"was not factually correct." (Tr.
3:238) .



17
During the 18 months following the 

civil service appeal, there was a 
substantial reduction in respondent's 
authority and responsibility at CDA. 
Two-thirds of the employees in the 
section supervised by respondent were 
either shifted, along with their jobs, to 
other units, or were laid off. (Tr. 
1:57-58, 3:157). Respondent was fre­
quently excluded from meetings of other 
management officials. (Tr. 1:57, 2:141). 
Several of respondent's colleagues re­
garded these developments as being 
directed at respondent personally. (Tr. 
2:141, 3:4-5). Respondent submitted to 
Director Hamsher a written appeal 
regarding this reorganization of respon­
sibilities, but Hamsher never responded. 
(Tr. 1:58). There was some dispute 
regarding which senior city officials 
were responsible for this curtailment of



18
respondent's authority and work; defen­
dant Kindelberger, for example, testified 
he could not recall whether or not he had 
advocated any of these changes. (Tr. 
3:225) .

In October 1981, respondent was 
again subject to an annual performance 
evaluation. Prior to 1980 respondent had 
generally been rated superior or "good" 
and been awarded a raise. (Tr. 1:37-43). 
In October 1981, however, respondent was 
rated only "adequate" overall, and was 
denied any raise; for the first time in 
his 13 years at CDA respondent was rated 
"inadequate" on one part of his evalua­
tion. (Tr. 1:64-65). Respondent ap­
pealed the evaluation to the Department 
of Personnel. While that appeal was 
pending, defendant Kindelberger wrote a 
memorandum urging that a critical portion 
of Praprotnik's personnel records be



19
deliberately withheld from his lawyer. 
(Tr. 2:58, 106; 3:228-31, 252-53). One 
of the supervisors who rated respondent 
admitted having based his evaluation in 
part on the fact that Director Hamsher 
was still angry over the Serra sculpture
incident. (Tr. 2: 4-6, 3:44-45) . In
discussions with the Department of
Personnel, the two CDA supervisors who
had evaluated respondent admitted having 
improperly colluded in preparing their 
assessments (Tr. 2:109, 124, 125). The 
Department of Personnel directed that the 
respondent's "inadequate" rating be 
raised to "adequate", and that respon­
dent's overall performance be reevaluated 
by CDA. (Tr. 2:105-09, 3:48). CDA, 
however, never gave respondent the 
mandated reevaluation; Alvin Karetski, a 
senior CDA supervisor, testified that no 
reevaluation was performed because he



20
personally "didn't agree with" the 
Department of Personnel. (Tr. 3:48-49).

In April 1982, respondent was 
transferred from CDA to the Heritage and 
Urban Design Commission. This transfer 
led inexorably to respondent's loss of 
his job; at CDA respondent's seniority 
protected him from being laid off, but at 
HUD respondent was the only employee in a 
job which was soon abolished. (Tr. 
3:124). Top St. Louis officials gave 
sharply conflicting accounts of who 
decided to transfer respondent from CDA 
to HUD. The transfer was actually 
announced by CDA Director Hamsher. (Tr. 
1:67). Hamsher, however, insisted the 
real decision was made by the Mayor, and 
that CDA was merely following orders. 
(Tr. 3:200). William Edwards of the 
Mayor's office, on the other hand, 
testified that the Mayor merely accepted



21
the recommendation of Director Hamsher. 
(Tr. 2:185). The director of the 
Department of Personnel, William Duffe, 
testified the decision had been made 
jointly by himself, Director Hamster, and 
Commissioner Jackson. (Tr. 3:144). But 
in his pre-trial deposition, Duffe sug­
gested the decision would have been made 
by the Board of Estimate and Apportion­
ment (Tr. 2:180), a view which was shared 
by respondent. (Tr. 1:75). There was 
documentary evidence indicating the 
transfer had been approved by Jack Weber, 
the city Budget Director (PX 129; Tr. 
1:74). Respondent attempted to appeal 
the transfer to the Civil Service 
Commission but the Commission declined to 
hear the appeal because it believed that 
the transfer had not injured respondent. 
(Tr. 3:119).

The transfer to HUD might not have



22
led to respondent's layoff if he had had 
an important function at that agency, but 
at HUD respondent was given essentially 
menial clerical tasks.6 Again, however, 
city officials disagreed about who was 
responsible for those menial assignments. 
HUD apparently maintained that from the 
outset it simply had no need or place for 
a person with respondent's managerial and 
architectural skills. (Tr. 1:71, 2:90). 
CDA Director Hamsher insisted, on the 
other hand, that he intended to transfer 
to HUD most or all of the work respondent 
had earlier been doing at CDA. (Tr. 
1:68, 3:171-7). Hamsher argued that HUD 
Commissioner Jackson was responsible for 
assuring that that transfer of functions 
from CDA actually occurred. (Tr. 3:197). 
Personnel Director Duffe testified that

6 Tr. 1:67-68, 73, 77; 2:14-16, 67, 
85, 154-55; 3:254-55.



23
the head only approved respondent's 
transfer because Hamsher assured him that 
respondent's job responsibilities were 
being moved as well, and that he did not 
know that this representation was not 
carried out. Had he subsequently learned 
what respondent was really doing at HUD, 
Duffe insisted, he would have questioned 
the propriety of the transfer itself. 
(Tr. 3:128). Documentary evidence, 
however, showed that within months of the 
transfer to HUD, a memorandum was sent to 
Duffe describing respondent's menial 
responsibilities, and noting that 
Praprotnik was "grossly overqualified" 
for his new position at HUD. (PX 92; Tr. 
1:80; see also DX E3, DX E4, DX E9).

Respondent's brief tenure at HUD was 
marked by continued hostility from higher 
authorities. On October 16, 1982, 
Commissioner Jackson decided, on the



24
basis of an adverse performance evalua­
tion, to reduce respondent's salary; that 
salary reduction was overturned by the 
Service Rating Appeals Board. (Tr. 1:79- 
81, 2:68-70). In March 1983 respondent's 
position at HUD was reclassified from a 
level 59 to a level 55; there was con­
flicting testimony regarding whether the 
Civil Service Commission or the Depart­
ment of Personnel was responsible for the 
reclassification. (Tr. 1:81, 3:113). 
This reduction had the practical effect 
of precluding respondent from receiving 
further raises. (Tr. 2:26). In response 
to an inquiry from HUD, Personnel Direc­
tor Duffe explained that the reclas­
sification was based on interviews with 
HUD officials regarding respondent's 
particular responsibilities at HUD. (Tr. 
2:71). Both respondent and Commissioner 
Killen, however, testified that no such



25
interviews had ever occurred. (Tr. 2:71- 
73, 167, 168). At two other unspecified 
times in 1983 respondent was reprimanded 
and suspended by Director Killen; both 
actions were appealed to the Civil 
Service Commission, which apparently took 
no action on those appeals. (Tr. 2:72- 
73) .

Beginning in the fall of 1982 there
were repeated attempts to lay off
respondent. On November 4, 1982 , Com-
missioner Jackson requested that the
Department of Personnel issue a layoff 
list for HUD (PX 133) ; on the same day 
Director Duffe issued such a list, which 
contained only one name —  James Praprot- 
nik. (PX 134). A letter announcing the 
layoff was drafted, but for unexplained 
reasons was never sent. (PX 13 5; Tr. 
1:78-79). In February 9, 1983, then
Acting Commissioner Killen proposed to



26
Director Nash that respondent's job be 
abolished. (PX 137). On July 1, 1983, 
Commissioner Killen wrote to John 
Temporiti, the Mayor's Chief of Staff, 
requesting a budget change that would 
have eliminated respondent's position.
On November 2, 1983, Commissioner Killen 
submitted to Director Patterson a HUD 
budget that excluded respondent's job. A 
layofff notice was finally issued in late 
December, 1983, effective on the 30th of 
that month. (Tr. 1:84, 85).

The relevant agency heads again gave 
sharply conflicting accounts regarding 
who decided to lay off respondent. 
Commissioner Killen asserted the decision 
was for Directors Nash and Patterson to 
make. (Tr. 2:172). Director Nash 
insisted that CDA Director Deborah 
Patterson made the decision, since HUD 
received all its funds from CDA. (Tr.



27
2:193). Director Patterson testified 
that Director Nash had made the initial 
recommendation, which was actually 
approved by the Board of Estimate and 
Apportionment, and that she had no 
authority to veto the layoff. (Tr. 3:58- 
63, 67). Director Duffe asserted that
Nash and Killen had made the decision. 
(Tr. 2:182). Respondent appealed the lay 
off to the Civil Service Commission; for 
reasons not explained in the record the 
Commission never acted on that appeal. 
(Tr. 2:73, 3:118).7

(3) The Defense of the Individual 
Claims. At trial the office of the St.
Louis City Counsellor undertook to

7 In the eighth circuit, petitioner 
suggested that, despite an unexplained 
delay of several years, it was "alto­
gether possible" that the Commission 
might act on the appeal and restore 
respondent to his job. Petition for 
Rehearing and Suggestion for Rehearing En 
Banc, p. 10. Petitioner no longer 
advances such a contention.



28
represent the three individual defendants 
as well as the city itself. One of the 
primary defenses offered by the city 
attorney on behalf of the three in­
dividual defendants was that the alleged­
ly unconstitutional treatment of which 
respondent complained had been the work 
of high ranking officials other than the 
three named defendants.

In her opening statement the 
assistant city attorney stressed that 
during the period in question respondent 
had worked under four agency Directors, 
two of whom were not among the named 
individual defendants. (Tr. 1:19). 
During the presentation of respondent's 
case, the city attorney used her cross 
examination to emphasize that the actual 
layoff order had been signed by Commis­
sioner Killen, not by one of the named 
defendants (Tr. 2:83), and that although



29
respondent had been verbally abused by a 
member of the Mayor's cabinet, that 
Cabinet Member too was not a named 
defendant. (Tr. 3:8). At the close of 
respondent's case, the city attorney 
moved on behalf of the individual 
defendants for a directed verdict, 
arguing that the individuals actually 
responsible for the treatment of which 
respondent complained were not the named 
defendants, but Directors Killen, Nash 
and Spaid, and Supervisor Karetski. (Tr. 
3:14-26).

The city's own case focused heavily 
on an effort to lay any blame on indi­
viduals who were not among the named 
defendants. Defendant Kindelberger 
insisted he had given respondent a low 
rating only because ordered to do so by 
CDA Director Spaid. (Tr. 3:226). De­
fendant Hamsher insisted the Mayor had



30
personally ordered the transfer of 
respondent to HUD, and denied having 
"pushed" for that decision. (Tr. 3:199- 
200) . Director Hamsher also insisted 
that, if no job functions had been 
transferred from CDA to HUD, that was the 
fault and responsibility of HUD Commis­
sioner Jackson. (Tr. 3:197). Defendant 
Patterson disputed testimony by Director
Nash and Commissioner Killen that she
made the final decision to lay off
respondent, insisting that Nash had sole 
authority over that question. (Tr. 3:59- 
60, 62-63) . In the face of indisputable 
documentary evidence that the Serra 
sculpture incident played a role in 
respondent's adverse 1981 rating, the 
city called as a defense witness Super­
visor Alvin Karetski, who testified that 
he had done this on his own initiative,
and not under orders from defendants



31
Kindelberger or Hamsher. (Tr. 52).

Much of the city attorney's closing 
argument emphasized the city's contention 
that defendants Patterson, Hamsher and 
Kindelberger were not the sole or primary 
culprits:

[T]his case is an attempt to 
hang all the ills that ever occurred 
to James Praprotnik on three people, 
all the ills that occurred over a 
four-year period and under four 
different bosses ... on three 
people. And I don't think that's 
fair at all; I really don't....

Chuck Kindelberger . . . was A1 
Karetski's second rater. Unfor­
tunately, he agreed with A1 Karet- 
ski, and they rated Mr. Praprotnik 
adequate. A1 Karetski is not a 
defendant in this thing. Chuck 
Kindelberger is. He wasn't even the 
first rater, but he's going to take 
the rap for that if you find against 
him on that....

Now, another thing I would like 
you to consider is, who is not a 
defendant in this matter. Who is 
not a defendant. Donald Spaid is 
not a defendant. Donald Spaid is 
the guy who laid that first suspen­
sion on ... who allegedly got so 
angry that he would go to any 
lengths to retaliate, directed his 
subordinates to retaliate.



32

Donald 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 
on the form. ... It was his deci-
S 10X1 • • • •

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. Lets hang it on 
these guys.

Let me think who else is not 
here? Henry Jackson was the 
commissioner of Heritage and Urban 
Design when Jim Praprotnik first got 
transferred over there. Henry 
Jackson is the one who gave him all 
the rotten assignments.. . . Frank 
Hamsher testified that once this man 
went over there, he didn't have 
anything to say about what he did. 
He understood he would be doing work 
at the same level. But Henry didn't 
see it that way.... Henry Jackson's 
not a defendant. He's not here to 
answer for his actions. So I'd like 
you to bear that in mind, too, when 
you consider what happened to Mr. 
Praprotnik .. and who should pay for 
it.

(Tr. 4:48-52).
Counsel for respondent replied by

insisting that the city should be held



33
liable even if, as the city attorney had 
suggested, the particular high officials 
responsible for the constitutional 
violation were not among the named 
defendants:

[Counsel for the defendants] said we 
didn't sue enough people. Well, may 
be we didn't but ... we brought the 
ones we felt had mistreated Mr. Praprotnik.

Now, she says maybe there are 
other high officials we should have 
brought in; that's why we sued the 
City of St. Louis. If other high 
officials did this to him, then the City is responsible.

(Tr. 4:56). After substantial delibera­
tion the jury returned a verdict against 
the defendant City of St. Louis, but in 
favor of the individual defendants 
Hamsher, Patterson, and Kindelberger.



34

SUMMARY OF ARGUMENT
I. Appellate courts are not author­

ized to reconsider de novo whether a 
constitutional violation was caused by an 
official policy or action. Appellate 
review of a jury verdict under Monell is 
limited to determining whether the jury 
was properly instructed, and whether 
there was sufficient evidence to support 
the jury's decision. Rule 51, F.R.C.P..

II. The jury instructions regarding 
municipal liability were drafted and 
proposed by the city itself. The actual 
instructions to the jury did not direct 
it to impose liability for any constitu­
tional violation caused by an official 
with "final authority." The eighth 
circuit's legal theory, regarding "final 
authorities", whatever its meaning, 
simply was not the basis on which the



35
jury was charged.

Municipal liability under Monell 
extends in some circumstances to offi­
cials exercising delegated authority. 
The policy at issue in Monell itself was 
adopted by an Assistant Deputy Ad­
ministrator of the city Department of 
Social Services, exercising delegated 
authority, not by any individual with 
what petitioner describes as "ultimate 
authority." The prosecuting attorney in 
Pembaur v. City of Cincinnati. 89 L.Ed.2d 
452 (1986) , had no direct or "ultimate" 
authority over deputy sheriffs, but was 
exercising authority delegated to him by 
the county sheriff.

The existence of a municipal rule 
prohibiting a particular constitutional 
violation does not invariably immunize 
the city from liability for such a 
violation. Such rule, like the osten­



36
sible state legal rights of freedmen in 
1871, may have little influence on actual 
government practice. Monroe v. Pape, 365 
U.S. 167 (1961). The existence of such a 
rule is relevant to, but not conclusive 
of, a Monel1 claim.

III. There was ample evidence to 
support the jury verdict. Petitioner 
urged the jury to conclude that in St. 
Louis personnel policy was made solely by 
the Civil Service Commission, the 
Department of Personnel, and the Board of 
Service Rating Appeal. Respondent argued 
that policy could also be made by the 
individuals alleged to have been involved 
in the retaliatory dismissal —  the 
Mayor, the Mayor's staff and Cabinet, and 
half a dozen agency Directors and Commis­
sioners. These conflicting contentions 
presented essentially factual issues 
properly left with the jury.



37
IV. The jury verdict against the 

city was entirely consistent with the 
jury's verdict exonerating the three 
named individual defendants. The 
evidence indicated that at least 13 other 
high ranking city officials might have 
been responsible for the retaliatory 
dismissal. The city attorney, in her 
closing argument on behalf of the three 
individual defendants, repeatedly 
insisted that any constitutional viola­
tion had been the work of city officials 
other than those three defendants.



38
ARGUMENT

I. WHERE A JURY HAS FOUND A CITY 
LIABLE UNDER MONELL. THE ROLE 
OF AN APPELLATE COURT IS LIMITED 
TO REVIEWING CHALLENGED INSTRUCTIONS 
AND ASSESSING THE SUFFICIENCY OF 
THE EVIDENCE_________________________

The threshhold question presented by
this case is whether, as petitioner
appears to assume, appellate courts have
the authority to decide de novo whether a
constitutional violation was caused by an
official policy or action within the
meaning of Monell. Petitioner argues:

Who speaks for the city? And when 
does he who may speak for the city 
speak for the city, and how does he 
do so? Finding answers to these 
difficult questions has been the 
task of the lower federal courts and 
of this Court since ... Monell.

(P. Br. 15-16). Petitioner thus urges 
that on appeal this Court should decide 
for itself which high level St. Louis 
authorities in the years 1980-83 were 
officials "whose edicts or acts may



39
fairly be said to represent official 
policy." Monell. 436 U.S. at 695. We 
contend that neither Monell nor the 
Seventh Amendment permit an appellate 
court to disregard in this manner the 
verdict of a federal jury.

The decisions of this Court do not 
authorize such a de novo appellate 
reconsideration of a matter previously 
presented to and determined by a Seventh 
Amendment jury. In Oklahoma City v 
Tuttle, 85 L.Ed 2d 791 (1985), the city
petitioner urged this Court to make its 
own determination regarding whether the 
alleged constitutional violation was the 
result of a municipal policy or prac­
tice.8 This Court declined to do so, 
restricting its inquiry to an evaluation 
of the correctness of the challenged jury

8 Brief for Petitioner, No. 83- 1919, p. 21.



40
instruction. 85 L.Ed.2d at 802-04. In 
Springfield v. Kibbe. 94 L.Ed 2d 293 
(1987), the Court emphasized that even a 
purely legal issue regarding the meaning 
of Monell could not ordinarily be 
addressed on appeal unless that question 
had been preserved and presented as a 
challenge to a jury instruction.94 
L.Ed.2d at 297-98.

In this case, as in Tuttle and 
Kibbe, the jury was asked, with the 
consent of both parties, to decide 
whether the defendant city could be held 
liable under Monell. in all three cases 
the juries were instructed that liability 
could be based only on an official policy 
of practice, and not merely on the 
doctrine of respondent superior.9 The 
appellate courts are not, of course, at 
liberty to simply disregard the verdict

9 See, e.g., id. at 21.



41
of a properly instructed jury, even if 
the question decided by that jury is par­
ticularly important, controversial, or 
interesting.

A jury verdict in a Monell action 
is not, of course, immune from appellate 
scrutiny. If a municipal defendant 
wishes to frame and preserve for appeal 
some issue of law, the defendant can do 
so, provided that, as required by Rule 
51, F.R.C.P., it objects to the instruc­
tions given by the trial judge and makes 
clear, through its own proposed instruc­
tions or in some other manner, what 
direction it contends should have been 
given to the jury. In the absence of 
such an objection under Rule 51, a party 
is still free to argue, subject to the 
constraints of the Seventh Amendment, 
that the evidence was insufficient to 
satisfy the legal standard articulated in



42
the unchallenged jury instructions. But 
the ultimate question of whether a city 
should be held liable under Monell. like 
the ultimate question of whether a Title 
VII defendant engaged in intentional 
discrimination, is not an issue which the 
appellate courts are authorized to 
reconsider de novo. Cf. Pullman 
Standard Co. v. Swint. 456 U.S. 273, 287- 
89 (1982).

Any appellate attempt to make such a 
de novo determination regarding municipal 
liability would ordinarily run afoul of 
the Seventh Amendment. In most actions 
brought under Monell there are critical 
disputes of facts regarding the cause and 
circumstances of the alleged constitu­
tional violation. Any application of 
Monell ordinarily requires determination 
as to the identity, rank, authority and 
role of each of the government officials



43
involved. In this case, for example, 
there was sharply conflicting testimony 
regarding which of the high ranking St. 
Louis officials involved had actually 
made the decisions of which respondent 
complained. Other issues often bearing 
on Monell. such as the existence and 
scope of delegated authority, the degree 
of knowledge and supervision by higher 
authorities, and the extent to which 
relevant written rules were systematical­
ly ignored or enforced, all raise 
essentially factual problems. Questions 
of causation and foreseeability are 
factual matters which have traditionally 
been consigned to the jury in tort or 
contract actions. The parties in a case 
such as this will often be in disagree­
ment regarding which policy or practice, 
official or otherwise, caused the 
constitutional violation complained of.



44
In Monell litigation it will only rarely 
be possible to identify a substantial

I

core of undisputed acts to which an 
appellate court would apply any legal 
principles properly preserved under Rule 
51.

In the evaluation of such often 
conflicting evidence, a jury will 
frequently be required to rely on its 
understanding of the realities of 
government in the jurisdiction at issue. 
The application of Monell. like the 
implementation of White v Register. 412 
U.S. 755,769 (1973), frequently turns on
an "intensely local appraisal" of the 
evidence presented. Otherwise similar 
testimony might lead a local jury to 
quite different conclusions depending on 
whether the incident at issue involved, 
for example, the city of Chicago or a 
small term in downstate Illinois. In



45
resolving a Monell claim a jury must 
bring to its deliberations some funda­
mental knowledge of the local government 
and politics. In the instant case, for 
example, counsel for respondent in his 
closing argument urged the jury, without 
recorded objection, to weigh the evidence 
in light of its understanding of the 
structure and operation of the St, Louis 
City government.10 Appellate courts are 
uniquely ill-equipped to evaluate 
evidence in this informed manner.

The application of Monell is rarely 
a mechanical task, even when the relevant 
facts are largely undisputed. Monell

10 "I think that we must bear in 
mind what happens in the City of Saint 
Louis. We know that this is a political 
town. We know that when a person does 
certain things, exercises maybe certain 
rights or speaks up about things about 
the Serra Sculpture, particular [sic], if 
Mr. Pulitzer is interested in it or the 
mayor's interested in it, that person may 
be on his way out the door, even though 
he has civil service status."



46
authorizes the imposition of liability on 
a city where a constitutional violation 
was caused by "those whose edicts or acts 
may fairly be said to represent official 
policy." 436 U.S. at 694. (Emphasis 
added). The standard of "fairness" under 
Monell. like the standard of reasonable­
ness in tort, often requires the finder 
of fact to apply to the evidence a degree 
of judgment and common sense. There are 
innumerable possible variations in the 
number and authority of the officials who 
might be involved in a particular con­
stitutional violation, and in the 
governmental context in which those 
officials serve. Monell does not and 
could not purport to draw a bright line 
clearly distinguishing which combinations 
of circumstances would and would not 
"fairly" give rise to municipal liabil­
ity.



47
Tuttle and Kibbe adhere to the 

traditional constraints on appellate 
review of jury verdicts. Within this 
well established approach an appellate 
court can evaluate legal issues preserved 
by timely objections to jury instruc­
tions, and can inquire into the suf­
ficiency of the evidence to satisfy the 
standard set forth in the instructions. 
But if an appellate court determines that 
the instructions were either proper or 
unchallenged, and that the evidence was 
sufficient to support a verdict under 
those instructions, the role of the court 
is at an end; in such circumstances the 
court is not free to substitute its own 
evaluation of the evidence for that of 
the j ury.
II. THE DISTRICT COURT PROPERLY IN­

STRUCTED THE JURY REGARDING THE 
SCOPE OF MUNICIPAL LIABILITY UNDER 
MONELL
The district court gave the jury two



48
instructions, both drafted by the counsel 
for the city, regarding the scope of 
municipal liability under Monell. Those 
instructions explained that "as a general 
principal a municipality is not liable 
under 42 U.S.C. § 1983 for the actions of 
its employees," and that municipal 
liability is limited to constitutional 
violations "visited pursuant to an 
unconstitutional governmental custom, 
usage or policy knowingly followed by the 
municipality." (JA 113, 115)(Emphasis
added). The court further explained, in 
words framed by the city itself, that 
official policy included acts of "high 
government officials". (JA 113).
Petitioner did not object to these 
instructions in the district court, in 
the court of appeals, or in its petition 
for certiorari.

In this Court, however, petitioner



49
advances in this Court a variety of legal 
arguments which, if correct, would 
require the conclusion that the instruc­
tions framed by petitioner's own counsel, 
and agreed to and used by the district 
judge, were erroneous or inadequate. We 
urge that petitioner cannot challenge in 
this manner the instructions to which it 
consented at trial, and that the sub­
stance of those instructions was, in any 
event, entirely proper.

(1) Liability under Monell is not 
limited to systematic practices, but 
encompasses as well even a discrete 
action taken by "those whose edicts or 
acts may fairly be said to represent 
official policy." Monell. 436 U.S. at 
694; Pembaur. 89 L.Ed.2d at 463. In the 
instant case counsel for respondent 
repeatedly made clear that the claim 
against the city was based, not on an



50
assertion of a widespread practice of 
retaliation, but on an allegation that 
the retaliatory measures directed by city 
officials of such high rank that their 
conduct in even a single case might 
fairly be said to represent official 
policy.11 Petitioner acknowledged in its 
eighth circuit brief that at trial 
"plaintiff relied exclusively on the 
theory that a ... constitutional tort 
inflicted on him by 'high City offi­
cials', was sufficient to impose liabil­

11 Respondent relied on this "high 
government official" standard in seeking 
reinstatement of the City as a defendant. 
(JA 28-32). The district court made 
clear it was allowing the case to proceed 
against the city solely because of this 
contention. (Order of Oct. 5, 1984, p. 
2). Respondent relied on the "high 
government offical" theory in his opening 
statement (Tr. 1:4), closing argument 
(Tr. 4:31-34), and opposition to the 
City's request for a directed verdict. 
(Tr. 3:29, 4:23). The city attorney 
expressly agreed that municipal liability 
could be based on acts of "high ranking 
officials." (Tr. 3:28).



51
ity on the City".12

At the conclusion of the testimony 
counsel for petitioner proposed an 
instruction authorizing the imposition of
liability on a city because of actions of 
a "high government official", which was 
accepted by the district court and 
utilized verbatim as instruction No. 15, 
provided:

As a general principle, a municipal­
ity is not liable under 42 U.S.C. § 
1983 for the actions of its employ­
ees. However, a municipality may be 
held liable under 42 U.S.C. § 1983
if the allegedly unconstitutional 
act was committed by an official 
high enough in the government so 
that his or her actions can be said 
to represent a government decision. (JA 113) (Emphasis added).

Petitioner did not request that the
trial court define in greater detail what
constituted a "high government official",
and did not suggest that the trial judge,

Brief for Defendant-Appellee City of St. Louis, No. 85-1145-EM (8th Cir.), p. 24.



52
rather than the jury, should decide which 
of the officials implicated in the case 
were "high government officials".

In this Court, however, petitioner 
now attacks Instruction No. 15 as 
lacking in "precision". (P. Br. 14 and 
n.5). We recognize that there may be 
circumstances in which a particular 
additional clarifying instruction, if 
requested in a timely fashion, might be 
helpful or even necessary. But the 
language of Instruction No. 15, as 
drafted by counsel for petitioner, seems 
to us entirely serviceable. The terms of 
the instruction comport with the require­
ment of Monell that municipal liability 
be limited to cases involving actions by 
officials whose conduct can "fairly be 
said to represent official policy." 
Given the enormous variety of ways in 
which authority is distributed within the



53
tens of thousands of local government 
bodies in the United States, it would be 
manifestly impossible to frame any 
instruction or combination of instruc­
tions that could delineate in most or 
even many cases which officials were and 
were not of sufficient stature to speak 
for a particular locality. Monell 
litigation frequently presents complex 
disputes about the authority, respon­
sibility, conduct, selection, super­
vision, disciplining and training of the 
various officials involved. In determin­
ing what mix of circumstances is suffi­
cient to show that the actions of the 
responsible officials represented 
official policy, juries often must rely 
on their common sense and on their 
judgment regarding the fairness of 
imposing liability on the city. Monell 
does not suggest that the courts must or



54
should undertake the Sisyphean task of 
attemptint to frame instructions so 
"precise" that they specify exactly which 
officials under which circumstances can 
fairly be said to speak for a city.

(2) Petitioner devotes much of its 
brief to criticizing the eighth circuit's 
opinion regarding when a city employee 
with "final authority" over an issue is 
for that reason a municipal policymaker. 
(P. Br. 15-24). Petitioner reads the 
court of appeals opinion to hold that 
whenever a particular decision of a city 
employee is not subject to de novo review 
by higher authorities, that employee is 
ipso facto a municipal policymaker, and 
every decision involved is an official 
city policy.

We do not understand the appellate 
court to have adopted such a sweeping 
rule. In the court of appeals the city



55
argued that, even if Nash, Killen, and 
the others had delegated authority to 
make municipal personnel policy, they 
lacked "final authority" with regard to 
any decision if that decision was 
"reviewable by others." (See Pet. App. 
A-9).13 In response to that contention,

13 Brief for Defendant-Appellant 
City of St. Louis, No. 85-1145-EM (8th Cir.) pp. 26-27):

"Although each individual defendant 
had responsibilities for making 
initial personnel and budgeting 
decisions affecting City employees 
subject to them, none of them had 
final authority in this regard. By 
law, their personnel actions had to 
be (and were) reviewed by the 
director of personnel, and could 
also be (and were) reviewed by the 
civil service commission. Their 
budget decisions were reviewable by 
the City's board of estimate and 
apportionment including the Mayor, 
comptroller, and the president of 
the board of alderman, and the 
City's board of alderman.... The 
decision of [Nash and Killen] was 
also reviewable by others...."

In its eighth circuit Reply Brief the 
city described the issues presented by 
this case as including, whether a city



56
the eighth circuit merely concluded that, 
where an official otherwise has authority 
to make municipal policy, he or she does 
not "automatically" cease to be a 
policymaker solely because of the 
presence of some limited appeal process. 
(Pet. App. A—9) . The holding of the

could be held liable under Monell "where 
... a civil service system assured that 
final employment decisions were not made 
even by the policymakers identified by 
plaintiff as being illegally motivated in 
their conduct." Reply Brief, p. iv. 
Petitioner urged in that Reply Brief:

"Even accepting that . . . the Mayor 
or the City's board of estimate and 
apportionment were involved in the 
decision to transfer and lay 
plaintiff off . . or that . . . Killen 
... and Nash ... were 'policymakers' 
... [p]plaintiff's case is still 
patently defective for the simply 
reason that none of the 'high 
officials' he mentions in his brief 
were the final authority in person­
nel decisions for the City. Under 
the City Charter ... only the civil 
service commission of the City had 
ultimate control over employment 
decisions".

Id., p. 6. (Emphasis in original).



57
eighth circuit is not that the absence of 
an appeal process creates policymaking 
authority, but that the availability of 
such an appeal process does not neces­
sarily insulate a city from liability for 
actions that would otherwise constitute 
official policy. The court of appeals' 
actual holding is clearly correct. 
Meritor Savings Bank v. Vinson. 91 
L.Ed.2d 49, 63 (1976) .

Had the "final authority" theory 
criticized by petitioner actually been 
embodied in an instruction directing a 
jury to impose liability on that basis, 
we agree that the giving of such an 
instruction would have been reversible 
error. But in this case, of course, 
there never was any such instruction.

Petitioner urges this Court to hold 
that no municipal official can be a 
policymaker under Monel1 unless the



58
official is what petitioner characterizes 
as an "ultimate authority". (P. Br. 22- 
26). Under this proposed doctrine a high 
ranking municipal official, no matter how 
great his or her authority or responsi­
bility, would not be an "ultimate 
authority" if he or she was "subject to 
the direction and control of any other 
city official." (P. Br. 25). The cen­
tral tenet and significance of petition­
er's proposed "ultimate authority" doc­
trine is that a city could never be held 
liable for a practice, policy, or action 
adopted by an official exercising 
delegated authority. (P. Br. 26-27). 
Prior to the filing of its brief on the 
merits, petitioner expressly acknowledg­
ed, both in its original petition (Pet. 
12), and in the court of appeals,14 that

14 Petition for Rehearing and 
Suggestion for Rehearing En Banc, No. 85- 
1145-EM (8th Cir.) p. 6 (an "individual



59
municipal liability could be based on the 
exercise of delegated policymaking 
authority.

The "ultimate authority" doctrine 
now proposed by petitioner is clearly in­
consistent with the decision in Monell 
itself. The unconstitutional layoff 
policy in Monell had not been adopted by 
the New York's Mayor or City Council, or 
any other official immune from "control" 
by higher authorities. The written city-
wide regulations in Monell did not
require a pregnant woman to leave her
job, but merely insisted that she
receive "the approval of the agency 
head."15 The agency head, who was under

employment decision is transmuted into a 
government policy . . . where the govern­
ment has 'delegated its power to es­
tablish final employment policy' to the 
particular decisionmaker").

15 The regulation is guoted in 
"Civil Rights Litigation After Monell", 
79 Col. L. Rev. 213, 220 (1979).



60
the direction and control of the Mayor, 
had only delegated not "ultimate" 
authority. In the head of the New York 
City Department of Social Services the 
agency head did not himself make any 
decision regarding layoff practices, but 
delegated that responsibility to an 
Assistant Deputy Administrator for 
Personnel Management.16 It was the 
Assistant Deputy Administrator, exercis­
ing re-delegated authority, who adopted 
the practice of laying off all women who 
were more than five months pregnant. 
Despite the manner in which this decision 
was made, this Court had no doubt that 
the layoff rule constituted an official 
policy under Monel1.

In Pembaur the county prosecutor who 
authorized the break-in there at issue 
had no "ultimate authority" over the

16 Id.



61
deputy sheriffs who entered Dr. Pembaur's 
office. In issuing that directive, the 
prosecutor was acting under a "delegation 
of authority" from the Sheriff's office. 
89 L.Ed.2d at 466. The decision to refer 
the matter to the County Prosecutor was 
made, not by the County Sheriff, but by 
an unnamed "supervisor" in the Sheriff's 
office, 89 L.Ed.2d at 458, to whom the 
Sheriff had evidently delegated the 
authority to make such referrals. 
Although the County Prosecutor, in giving 
a legal opinion, was not subject to the 
"direction and control" of the Sheriff or 
the unnamed supervisor, both the Sheriff 
and that supervisor retained direction 
and control over the policy decision, and 
could have overridden the prosecutor's 
advice and instruction had they wished to 
do so. Justice Brennan emphasized that 
"authority to make municipal policy may



62
be granted directly by a legislative 
enactment or may be delegated by an 
official who possess such authority". 89 
L.Ed.2d at 465. Neither the concurring 
opinions nor the dissenting opinion in 
Pembaur indicated any disagreement with 
this view.

If, as petitioner suggests, a city 
could never be held liable for policies 
adopted by officials exercising "dele­
gated" authority, municipalities could 
effectively nullify Monel1 by the simple 
expedient of delegating critical deci­
sions to officials other than the "ul­
timate authorities". Where a mayor knew 
or suspected that a proposed policy was 
unconstitutional, he or she could 
insulate the city from liability merely 
by directing that a deputy mayor or an 
agency head actually decide to adopt that 
policy. It is inconceivable that the



63
framers of section 1983 could have 
intended to permit the law to be evaded 
in this manner.

Even in the absence of such a 
deliberate scheme to immunize a city, the 
proposed "ultimate authority" doctrine 
would often have the practical effect of 
eviscerting Monell. In any given city 
there would be only a handful of offi­
cials who were "ultimate authorities"; 
within the executive branch, the mayor 
would freguently be the only person who 
satisfied petitioner's proposed test. 
None of the policies, rules, and regula­
tions adopted by city agencies would, on 
petitioner's view, constitute "official" 
policies. An agency head with a staff of 
thousands, a multi-billion dollar budget, 
and control over the lives of millions of 
city residents, would on petitioner's 
view be a mere "underling" (P. Br. 27)



64
whose actions could not, as a matter of 
law, "fairly be said to represent of­
ficial policy". Although the conduct of 
municipal in many large cities is gen­
erally governed by longstanding binding 
written regulations, on petitioner's view 
those regulations would be simply 
irrelevant unless they were personally 
approved by the mayor, rather than by an 
agency head or board under the direction 
and control of the mayor.

Petitioner suggests that in order to 
ascertain whether an official was subject 
to the "direction and control" of another 
official, it would be necessary merely to 
consult the local charter or state 
legislation. But the actual distribution 
of direction and control within a 
government body is often far from 
apparent, and may in reality differ sub­
stantially from the allocation suggested



65
by a reading of the applicable written 
rules. Experience at the federal level 
demonstrates the ease with which reality 
may differ from the such literal rules.
The FBI under J. Edgar Hoover, for
example, was officially under the
direction and control of the Attorney
General; in practice, however, Director 
Hoover had virtually total autonomy, 
dealing with Attorneys General and 
Presidents as if he were a sovereign 
power. Conversely, the statutory mandate 
of the Civil Rights Commission con­
templates it will be completely immune 
from direction or control by executive 
officials; some congressional critics, 
however, have suggested that in reality 
the relationship of the Commission to the 
White House is more that of a lap dog 
than a watch dog. Such disputes il­
lustrate the enormous problems that could



66
arise if liability under Monell turned 
largely on who exercised control and 
direction over whom within a given city.

We do not suggest that every city 
worker who exercises any form of dele­
gated authority is for that reason alone 
a municipal policymaker. Clearly many 
are not. On the other hand, the deci­
sions of this Court do reflect a variety 
of situations in which an exercise of 
delegated authority would fairly be 
characterized as an official act or 
policy. If city policy expressly 
authorizes, but does not require, city 
employees to take a given action, such as 
shooting at unarmed non-dangerous fleeing 
felons, an employee who makes the 
delegated decision to engage in that 
authorized conduct can fairly be said to 
act on behalf of the city. See Spring^ 
field__v,__Kibbe, 94 L.Ed.2d 293, 303



67
(1987) (O'Connor, J., dissenting). Cf. 
Tennessee v.Garner. 85 L.Ed.2d 1 (1985). 
If city officials deliberately close 
their eyes to the existence of a par­
ticular unconstitutional practice, that 
inaction would effectively delegate to 
subordinates the authority to engage in 
that abuse, cf. Brandon v. Holt. 469 U.S. 
464, 467 and n.6 (1985); petitioner
appears to concede that a city could be 
held liable in such a situation. (P. Br. 
27) . If a city official delegates to 
subordinates carte blanche in a par­
ticular area, such a complete "failure of 
supervision" would provide an appropriate 
basis for relief against the city itself. 
Monell. 436 U.S. at 694 n.58. See
generally J. Lobel, Civil Rights Litiga­
tion and Attorney Fees Annual Handbook, 
V. 2, pp. 35-37 (1986).

On petitioner's view only one person



68
or board within a given city, such as a 
civil service commission, could make 
personnel policy within the meaning of 
Monell. Such an "ultimate authority" 
might delegate to individual agencies or 
their directors authority to make 
personnel rules for particular agencies, 
but for Monell purposes those rules would 
not be "policies" at all, even if clearly 
within the authority delegated by the 
"ultimate authority." This doctrine is 
entirely inconsistent with what St. 
Louis, and most other cities, in practice 
regard as official policy. In justifying 
Praprotnik's original two week suspen­
sion, both the city attorney and the 
city's witnesses asserted that discipline 
was appropriate because respondent had 
allegedly violated the personnel policies 
applicable to the Community Development



69
Agency.17 On petitioner's view a CDA 
agency rule regarding secondary employ­
ment would be an official policy under 
municipal law, a rule which all agency 
workers were required to obey on pain of 
suspension, or dismissal, and a rule 
which the city Civil Service Commission 
would enforce if violated. Yet the same 
rule, petitioner suggests, would not be 
official policy for federal law purposes 
under Monell. Neither Monell nor its 
progeny contemplated such an incongruous 
result.

(3) Petitioner asserts, finally, 
that a city can never be held liable 
under Monell if the municipality had in 
effect a rule prohibiting the constitu­
tional violation at issue. (P. Br. 24-25, 
28-31) . Were that the law, petitioner

17 Tr. 2:31-32, 118-20, 122, 216- 
18; 3:209.



70
might have been entitled to an instruc­
tion to that effect had a timely request 
been made at trial. In fact, however, 
petitioner never asked for any such 
instruction; in this Court petitioner 
argues at length that a retaliatory
layoff would violate the city charter (P.
Br. 29-30), but no such contention was
made to the jury or trial court. We
agree that a jury could and should
consider whether an alleged constitution­
al violation was contrary to a municipal 
rule, but we disagree with petitioner's
suggestion that the mere existence of
such a prohibition would always be
absolutely conclusive of the issue of
municipal liability.

Petitioner does not, of course, 
contend that a federal constitutional 
prohibition against retaliatory dismis­
sals is an expression of St. Louis



71
municipal policy. Neither the framers of 
the First Amendment, nor the federal 
judges who have interpreted that guaran­
tee, could be "fairly said to represent" 
official St. Louis' policy. At times in 
our history cities and states have openly 
and defiantly adhered to policies which 
they knew full well violated the con­
stitution and laws of the United States; 
de jure segregation remained an official 
policy in certain regions long after 
Brown v. Board of Education. 347 U.S. 483 
(1954). This Court in Owen v. City of 
Independence. 445 U.S. 622 (1980), was 
divided as to whether a city could be 
held liable for good faith constitutional 
violations, but every member of the Court 
in Owen agreed that a city would be held 
liable for policies that it knew or 
should have known were unconstitu­



72
tional,18 a view which pretermits any 
suggestion that a municipal practice must 
be deemed not "official" under Monell 
whenever the practice is patently 
unconstitutional. Petitioner does not 
suggest that the existence of a clear 
federal constitutional prohibition 
against retaliatory dismissals is of any 
relevance in determining the substance of 
St. Louis municipal policy.

What petitioner does contend is that 
a municipality can acquire absolute 
immunity from liability under Monell by 
the simple expedient of adopting a pro­
hibition against a particular constitu­
tional violation. Once that was done, a 
municipal policymaker who directed or 
engaged in such a violation would, on

18 See, e.g., 445 U.S. at 669 
(Powell, J., dissenting) ("[L]iability 
should not attach unless there was notice 
that a constitutional right was at risk").



73
petitioner's view, be acting "contrary to 
orders". (P. Br. 25). This immunity is 
not limited to instances in which a city 
has adopted such a prohibition "in so 
many words" (P. Br. 29) ; it is enough, 
petitioner suggests, that such a restric­
tion was "implicit" in the city charter 
or other official policy. (Id.). On 
this view a city might conceivably 
acquire immunity from suits over retalia­
tory dismissals if the city adopted a 
rule requiring municipal employees "to 
obey the first Amendment", or even 
directing them "to obey the United States 
Constitution and the decisions of the 
Supreme Court." There are, we believe, 
three distinct reasons why such a pro­
hibition, whatever its specificity, 
should not be given conclusive weight in 
determining municipal liability under
Monell.



74
First, although a policy prohibiting 

retaliatory dismissals would make such 
dismissals less likely, another municipal 
policy might nonetheless actually cause 
such constitutional violations. A 
plaintiff in a Monell action need not 
prove that the city had an unconstitu­
tional policy, so long as he or she 
establishes that a city policy foresee- 
ably caused the constitutional violation 
at issue. In Springfield v. Kibbe. 94 
L.Ed.2d 293 (1987), Justice O'Connor 
noted in her dissenting opinion that even 
though a city might have entirely 
constitutional guidelines regarding the 
use of deadly force, the city could still 
be held liable if its inadequate training 
or supervision policies predictably led 
to an unconstitutional shooting. 94 
L.Ed.2d at 300-04. Justice O'Connor
suggested that it might well be difficult



75
to prove the existence of such a causal 
connection, but agreed that a plaintiff 
was entitled to an opportunity to attempt 
to do so. (Id.).

The policies for which Monell holds 
a municipality accountable are the 
official actions or practices that 
establish the operative rules of action 
which guide the conduct of subordinate 
employees. A city policy is important to 
those employees and to the private 
citizens whose rights may be at stake, 
only because, and to the extent that, the 
policy actually determines how city 
workers will act. A written municipal 
policy forbidding retaliatory transfers, 
or the use of unwarranted lethal force, 
might well have the practical effect of 
establishing the operative standard of 
conduct. On the other hand, the sig­
nificance of such a substantive rule



76
might be largely dissipated if the city 
also had a policy of never actually 
enforcing those prohibitions, a policy 
implemented by refusing to scrutinize 
allegedly retaliatory transfers, (see 
Pet. App. A-ll), or by refusing to inves­
tigate or redress incidents of police 
brutality. See Brandon v. Holt. 469 U.S. 
at 468 n.6. Similarly, the existence "of 
a nominal prohibition would be of little 
significance if in practice responsible 
city officials routinely authorized, 
required or engaged in the very conduct 
forbidden by "the dead words of ... 
written text." Monell. 436 U.S. at 691
n.56. Here, for example, the St. Louis 
Employee Manual expressly provides that 
no employee may be transferred without 
his consent (Tr. 3:122), but the Director 
of Personnel insisted that the city in 
practice would transfer employees



77
regardless of their opposition. (Tr. 
3:132). The appropriate weight to be 
given to a municipal prohibition against 
a particular constitution violation is 
necessarily a factual matter, defendant 
on a variety of other circumstances, to 
be addressed in the first instance by the 
jury or trial judge.

Second, an "order" is only as 
authoritative as the individual who 
issues it. In many cases, as here, there 
will be a substantial dispute regarding 
which municipal official can be fairly 
said to make official policy. The finder 
of fact might reasonably conclude in a 
given case that those who "violated" a 
nominal rule could as fairly be regarded 
as municipal policymakers as those who 
adopted the rule itself. In the instant 
case the jury might have concluded that, 
although the city charter implicitly



78
disapproved of retaliatory dismissals, in 
respondent's case a decision to engage in 
such retaliation had been joined in by 
the Mayor, the Director of the Department 
of Personnel, and half a dozen other 
agency Directors and Commissioners. In 
such a situation Monell would certainly 
authorize imposition of liability on a 
municipality.

Third, the interpretation of section 
1983 must reflect the legislative history 
of that statute. The primary concern of 
the framers of the 1871 Civil Rights Act 
was that, although the southern states 
had enacted legislation which gave 
nominal protection to the rights of 
freedmen and union sympathizers, in 
practice the actual policies of those 
states was to disregard and violate those 
very rights. Senator Pratt emphasized 
that the actual treatment of blacks and



79
union men was very different than the
ostensible rules found in state statutes:

Plausibly and sophistically it is 
said the laws of North Carolina do 
not discriminate against them; that 
the provisions in favor of rights 
and liberties are general.... But 
it is a fact .. that of the hundreds 
of outrages committed upon loyal 
people ... not one has been punished 
.... Vigorously enough are the laws 
enforced against Union people. They 
only fail in efficiency when a man 
of known Union sentiments, white or 
black, invokes their aid.19

As this Court noted in Monroe v. Pape.
365 U.S. 167 , 180 (1961):

It is abundantly clear that one
reason the legislation was passed
was to afford a federal right in
federal courts because, by reason of
prejudice, passion, neglect, intol­
erance or otherwise, state laws 
might not be enforced.

Congress had "no guarrel with the state
laws on the books. It was their lack of
enforcement that was the nub of the
difficulty". 365 U.S. at 176. See also

19 Cong. Globe, 42nd Cong., 
Sess., p. 505 (1871).

1st



80
id. 365 U.S. at 174-180; "Civil Rights 
Litigation After Monel 111. 79 Col. L. Rev. 
213, 231-34 (1979).

Against that background it is 
inconceivable that the framers of section 
1983 contemplated that, by the simple 
expedient of adopting a rule against 
racial discrimination or any other type 
of unconstitutional action, a city could 
acquire absolute immunity from liability 
even where subsequent municipal policies 
or actions actually caused such constitu­
tional violations.



81

III. THE EVIDENCE WAS SUFFICIENT
TO SUPPORT THE JURY VERDICT
A. The Constitutional Standard
The Seventh Amendment severely 

restricts the extent to which the verdict 
of a properly instructed jury may be 
reviewed by a federal court. In assess­
ing the sufficiency of the evidence on 
which a jury based its verdict, neither a 
trial judge nor the appellate courts are 
free "to reweigh the evidence and set 
aside the jury verdict merely because the 
jury could have drawn different infer­
ences or conclusions or because judges 
feel that other conclusions are more 
reasonable." Tennant v. Peoria & Pekin 
Union R. Co.. 321 U.S. 29, 35 (1944). A
case must be submitted to the jury "if 
evidence might justify a finding either 
way . . .", Wilkerson v. McCarthy, 3 3 6
U.S. 53, 55 (1949), and "fair-minded men



82
might reach different conclusions." 
Bailey v. Central Vermont R. Co. . 319 
U.S. 350, 353 (1943). A jury verdict may 
be overturned only in the extreme case in 
which there is only one possible con­
clusion that a rational jury could have 
drawn from the evidence. In enforcing 
the commands of the Seventh Amendment, 
this Court has recognized several dis­
tinct principles restricting appellate 
review of the sufficiency of the evidence 
to support a jury verdict.

First, "the decision as to which 
witness was telling the truth . . . [is 
a] question[] for the jury." Ellis v. 
Union Pacific R. Co. . 329 U.S. 649, 653 
(1947). If a witness with personal 
knowledge of a disputed fact testifies 
before a jury, the jury's conclusion with 
regard to that fact is ordinarily con­
clusive. "[I]t would be an undue invasion



83
of the jury's historic function for an 
appellate court to judge the 
credibility of witnesses." Lavender v . 
Kurn. 327 U.S. 645, 652 (1946). When a 
jury chooses to believe the testimony of 
a witness with such personal knowledge of 
a disputed fact, the Seventh Amendment 
precludes a federal judge from ques­
tioning the veracity of that witness. 
Conversely, a jury may choose to infer 
from the demeanor of a witness that he or 
she is lying about the event or incident 
at issue. The demeanor of a witness may 
convince a jury

not only that the witness' 
testimony is not true, but that 
the truth is the opposite of 
his story; for the denial of 
one, who has a motive to deny, 
may be uttered with such hesi­
tation, discomfort, arrogance 
or defiance, as to give assur­
ance that he is fabricating, 
and that, if he is, there is no 
alternative but to assume the 
truth of what he denies.



84
Dver v. MacDouaall. 201 F.2d 265, 269 (2d 
Cir. 1952)(Hand, J.). Credibility will 
ordinarily be critical when two witnesses 
give conflicting testimony about the same 
subject. Where a case turns on the 
motivation or knowledge of a particular 
individual, and that individual testifies 
before the jury regarding those issues, 
resolution of the dispute will often be 
based on the credibility of that 
witness.20 A jury's assessment of the 
credibility of a witness in such cir­
cumstances is essentially immune from 
judicial reconsideration. Cf. Anderson

20 See Fishman v. Clancy. 763 F.2d 
485, 488 (1st Cir. 1985)("where state of 
mind is crucial to the outcome of a case, 
'jury judgments about credibility are 
typically thought to be of special 
importance'"); Knapp v. Whitaker. 757 
F . 2d 827, 843 (4th Cir. 1985) ("The 
credibility of the witnesses . . . [is] 
within the purview of the jury, especi­
ally in a case such as this which turns, 
in large measure, upon the defendants' 
motive . . .") .



85
v. Bessemer Citv. 470 U.S. 564, 575
(1985).

Second, the drawing of inferences
from both disputed and uncontroverted
testimony is ordinarily a matter for the
jury alone. "The very essence of [the
jury's] function is to select from among
conflicting inferences and conclusions
that which it considers most reasonable."
Tennant v. Peoria & Pekin Union R. Co. .
321 U.S. 29, 35 (1944).

Twelve men of the average of 
the community, comprising men 
of education and men of little 
education, men of learning and 
men whose learning consists 
only in what they have them­
selves seen and heard, the 
merchant, the mechanic, the 
farmer, the laborer . . . know
more of the common affairs of 
life than does one man; . . .
they can draw wiser and safer 
conclusions from . . . facts .
. . than can a single judge.

Sioux Citv & Pacific R.R. Co. v. Stout, 
84 U.S. 657, 664 (1874).



86
Third, an appellate court cannot 

weight conflicting evidence, or the 
conflicting inferences supported by 
different portions of the record.21 
Neither may an appellate court rely on 
evidence which the jury might have chosen 
to discount.22 Thus an appellate court 
ordinarily evaluates only whether the 
evidence which supports the prevailing 
party, together with all reasonable 
inferences, could rationally support the 
jury's verdict, and does not consider 
possibly conflicting evidence supporting

21 Gunning v. Coolev. 281 U.S. 90, 
94 (1936) ; Baltimore & Ohio R.R. Co. v. 
Groeger. 266 U.S. 521, 524 (1975); Great 
Northern Railway Co. v. Donaldson. 246 
U.S. 121, 124 (1918); Corinne Mill, etc.. 
Co. V. Toponce. 152 U. S. 405, 408 (1894).

22 Lavender v. Kurn. 327 U.S. 645, 
653 (1946); Hepburn v. DuBois. 37 U.S. 
345, 376 (1838).



87
the losing party.23 Any appellate 
consideration of evidence offered by the 
losing party would in most circumstances 
be constitutionally impermissible, since 
such consideration would generally 
require an appellate court to weigh or 
evaluate evidence in a manner reserved 
for the jury itself. This restriction 
has a substantial historical foundation, 
since under a common law demurrer to 
evidence, from which the modern motions 
for directed verdict and judgment n.o.v. 
derive, the moving party could not offer 
or rely on any evidence of its own.24

23 Gunning v. Denver & Rio Grande 
Western R.R. Co.. 375 U.S. 208, 210
(1963); Webb v. Illinois central Railroad 
Co.. 352 U.S. 512, 513-14 (1957); Wilker- 
son v. McCarthy. 336 U.S. 53, 57 (1949);
Corinne Mill, etc. Co. v. Toponce. 152 
U.S. 405, 408-09 (1894).

24 Slocum v. New York Life Insur­
ance Co. . 228 U.S. 364, 388-95 (majority
opinion), 409-17 (Hughes, J., dissenting) (1913).



88
For these reasons, a verdict in favor of 
a prevailing plaintiff can virtually 
never be overturned if the plaintiff has 
adduced sufficient evidence to establish 
a prima facie case. Cf. United States 
Postal Service v. Aikens, 460 U.S. 711, 
715 (1983) ; Pleasants v. Font. 89 U.S. 
116, 117 (1875).

Fourth, deference to the verdict of 
a jury is particularly important in a 
case such as this seeking redress for 
unconstitutional conduct by government 
officials. Justice Rehnquist correctly 
observed in Parklane Hosiery Co. v. 
Shore. 439 U.S. 322 (1979), that the 
Seventh Amendment was adopted in part 
because its framers believed that juries 
would often be more vigilant than judges 
in enforcing fundamental liberties. 439 
U.S. at 343-44 (dissenting opinion). 
Many of the inalienable rights for which



89
the colonists fought had originally been 
recognized and enforced by juries rather 
than by judges. It was jurors, not 
judges, who first limited the use of 
libel law in the Zenqer case, restricted 
unreasonable searches and seizures in the 
Wilkes case, protected religious freedom 
in Penn's Case, and refused to permit 
imposition of capital punishment for 
relatively minor criminal offenses. T.A. 
Green, Verdict According To Conscience 
(1985). Where, as here, the vindication 
of fundamental rights and liberties is at 
issue, federal judges should be par­
ticularly reluctant to interfere with the 
institution which the Seventh Amendment 
contemplated would prevent, and provide 
redress for, violations of the Constitu­
tion.

Finally, in a s s e s s i n g  the 
sufficiency of the evidence to support a



90
jury verdict, an appellate court will
ordinarily accord substantial weight to
the views of the trial judge.

[I]t is seldom that an appel­
late court reverses the action 
of a trial court in declining 
to give a peremptory instruc­
tion for a verdict . . . .
[T]he judge is primarily 
responsible for the just 
outcome of the trial. . . .  He 
has the same opportunity that 
jurors have for seeing the 
witnesses, for noting all those 
matters in a trial not capable 
of record . . . .  [A]n 
appellate court will pay large 
respect to his judgment.

Patton v. Texas & Pacific Railway Co. .
179 U.S. 658, 660 (1901).25 Many of the
considerations underlying deference to a
trial judge's own findings of fact under
Rule 52 are equally applicable to a trial
judge's assessment of the sufficiency of
the evidence heard by a jury. Supervis­

25 See also Dick v. New York Life 
Insurance Co. . 359 U.S. 437, 447 (1959) ;
Wilkerson v. McCarthy. 336 U.S. 53, 74
(1949)(Jackson, J., concurring).



91
ing jury trials is a major role of
federal district judges.

The rationale for deference . .
. is not limited to the 
superiority of the trial 
judge's position to make 
determinations of credibility .
. . [W]ith experience in
fulfilling that role comes 
expertise. Duplication of the 
trial judge's efforts in the 
court of appeals would very 
likely contribute only negli­
gibly to the accuracy of fact 
determination at a huge cost in 
diversion of judicial re­
sources .

Anderson v. Bessemer City. 470 U.S. at 
574-75. Where the trial judge and an 
appellate panel have both upheld the 
evidence as sufficient to support a 
disputed verdict, their concurrent 
assessment carries particular weight in 
this Court. Storv Parchment Co. v. 
Paterson Parchment Paper. 282 U.S. 555, 
560 (1931); Patton. 179 U.S. at 660.

B. The Trial Court Context
In assessing the sufficiency of the



92
evidence to support a jury verdict, an 
appellate court should ordinarily begin 
with a review of the closing arguments of 
counsel. It is often difficult on the 
basis of the testimony and exhibits alone 
to clearly understand the nature of the 
factual disputes which a particular jury 
was asked to resolve. In many cases 
there will be matters of fact about which 
the parties agreed, and which thus were 
simply ignored by both during the pre­
sentation of the evidence. Conversely, 
the evidence actually introduced may 
suggest to an appellate court the 
existence of an issue which was not 
seriously presented or pursued at trial, 
since the attorneys were aware of 
circumstances which made that line of 
inquiry clearly unfruitful. By using the 
closing arguments as a point of depar­
ture, an appellate court can minimize the



93
danger that it might resolve the case on 
some issue extraneous to the actual 
factual dispute at trial.

In addition, due deference to the 
preeminent factfinding role which a jury- 
plays under the Seventh Amendment 
dictates that a party be required to 
present its factual arguments to the jury 
itself. As a general rule no party is 
permitted to advance on appeal factual or 
legal contentions not raised and preserv­
ed below. A party appealing the denial 
of a motion for a directed verdict must 
ordinarily confine its brief on appeal to 
arguments that were first made to the 
district court which heard that motion. 
It is no less important that such factual 
contentions also be squarely presented to 
the jury itself. The jury trial will not 
be the "main event", rather than a "try 
out on the road", if litigants are



94
permitted to defer framing their factual 
contentions until the case is on appeal. 
Cf. Anderson v. Bessemer City. 470 U.S. 
at 575. In virtually any case it will be 
possible for an attorney with a modicum 
of ingenuity to frame some hypothetical 
question not addressed by the evidence, 
or to conjure up some possible inference 
never argued for at the trial itself. 
The central issue on an appeal from the 
denial of a motion for a directed verdict 
and for judgment n.o.v., however, should 
be the sufficiency of the evidence 
bearing on the factual disputes actually 
presented to the jury, not the ability of 
appellate counsel to conjure up new 
factual issues, however intriguing, which 
the jury itself was never asked to 
decide.

In her closing argument the city 
attorney did not contend that retaliatory



95
layoffs were prohibited by the city 
charter, that the mayor and various 
agency heads involved were without 
authority to make any policies, or that 
any of the individuals who had taken 
action against respondent had exceeded 
their delegated authority. The factual 
contention offered by the city appears to 
have been that the jury should regard the 
municipal civil service commission and 
certain other agencies, rather than the 
Mayor and his Cabinet and staff, as 
speaking acting on behalf of the city. 
We set out in the margin the full text of 
the city's argument.26 The city's motion

26 Tr. 4:55-56:
"I would like to point out to you 

that, far from following an unconstitu­
tional policy, the City of Saint Louis, 
at least in this case, went to the 
opposite extreme. We had available a 
civil service system and a variety of 
administrative boards —  the service 
rating appeal board, the director's 
office —  which Mr. Praprotnik made use



96
for a directed verdict was limited to the 
same factual issue.27 That question 
should be the focus of appellate scrutiny 
of the sufficiency of the evidence.

C. The Relevant Evidence 
Petitioner did not suggest below, 

and does not argue here, that it is 
inherently implausible that a Mayor, his

of. They were available. So, far from 
following an unconstitutional policy, we 
offered him every opportunity for redress 
and he got it. He got it. In many cases 
the Commission —  in just about every 
case the commission never completely 
ruled in his favor, but in every single 
case he got some redress, he got modi­
fied. That's all I wanted to say on that 
subject."

27 Tr. 3:28-29:
"I understand that you can be liable 

—  a municipality can be held liable if 
its high ranking officials are allowed to 
violate someone's constitutional rights. 
I fail to see how you can find any 
evidence that the City of Saint Louis did 
that. On the contrary, the City of Saint 
Louis has, in place, the Civil Service 
Commission, which in Mr. Praprotnik's 
case has redressed what he has viewed as 
wrongs of the high ranking officials."



97
or her Cabinet, or agency heads could be 
municipal policy makers. In some cities 
such officials are doubtless the only 
officials who make municipal personnel 
policy. Elsewhere some citywide rules 
might be made by a special personnel 
agency or commission, while individual 
agency heads were given delegated 
authority to establish other official 
policies for workers in their particular 
agencies. In New York City, for example, 
there was evidently such concurrent 
policymaking authority at the time when 
Monel1 itself was litigated.

The central factual defense advanced 
by petitioner at trial was that in St. 
Louis neither the Mayor, his Cabinet, or 
ordinary agency heads had no authority, 
concurrent or otherwise, to make official 
personnel policy. Rather, petitioner 
evidently contended, exclusive authority



98
to make such policies was in the hands of 
the Civil Service Commission, the Depart­
ment of Personnel, and the Service Rating 
Appeal Board. In order to sustain its 
request for a directed verdict, the 
burden on petitioner was to establish 
that no rational jury could have con­
cluded that in the City of St. Louis 
either the Mayor, the Mayor's Cabinet, or 
the Director or Commissioner of any 
agency other than the Department of 
Personnel had any authority to establish 
official policy regarding personnel 
matters. Although a reasonable jury 
could conceivably have sustained peti­
tioner's contention, there was ample 
basis on which the jury could have 
concluded otherwise.

The City Charter provisions 
establishing the Civil Service Commission 
make clear that the Commission has no



99
general authority or capacity, exclusive 
or otherwise, to regulate personnel 
matters. The Commission itself is 
composed of three part time members whose 
annual salary may not exceed $1680. (Tr. 
3:93). The primary responsibility of 
this part time Commission is to adjudi­
cate administrative appeals arising under 
the civil service rules. (J.A. 63,
section 7 (d)). Except for enforcing 
civil service rules established by the 
charter or local ordinances:

The commission shall have no 
administrative powers or duties 
... no power to direct or 
control any employee of the 
department of personnel or 
other employee of the city, or 
the action to be taken by them 
in any matter or case.

(J.A. 64; section 7(h)). If the
Commission favors the adoption of any new
municipal employment practice, its only
recourse is to recommend such action to
the mayor and aldermen. (J.A. 62;



100
section 7 (b)). Thus in many respects the 
city charter actually establishes a 
prohibition against policymaking by the 
Civil Service Commission.

The Director of the Personnel 
Department testified at trial that he had 
no control over the substance of 
personnel practices or decisions, but was 
empowered only to ascertain whether 
personnel policies and actions adopted by 
others were correct as to "form". (Tr. 
3:90-92, 125; Pet. App. A-9; cf. J.A. 67, 
section 9 (i)). Although the Charter 
authorizes certain other activities by 
the Director, they are generally minis­
terial in nature. (J.A. 65-69). The 
record contains no explanation of the 
authority or responsibilities of the 
Service Rating Appeals Board.

A number of the events disclosed at 
trial substantially undercut petitioner's



101
characterization of the role of the 
Commission, Department and Board. In 
defending the proposed two week suspen­
sion imposed on respondent in 1980, the 
city attorney repeatedly argued that 
respondent had violated, not any citywide 
policy regarding secondary employment, 
but a CDA agency policy established by 
Director Spaid. That contention, and the 
evidence offered by the city in support 
thereof, were clearly inconsistent with 
the city attorney's later suggestion that 
an agency head such as Director Spaid had 
no authority to make personnel policy, 
and with petitioner's argument in this 
Court that Spaid's successor, Director 
Hamsher, also had no authority to 
establish personnel policy. Similarly, 
the record did not support the city's 
suggestion that the Civil Service 
Commission, through its disposition of



102
appeals, exercised effective control and 
scrutiny of agency personnel practices. 
Between 1980 and 1984, the Commission 
simply refused to act on four of the 
appeals filed by respondent. The 
Commission's refusals included the two 
critical appeals filed by respondent in 
this period —  the appeal of the 1982 
transfer (Tr. 3:119), and the appeal of 
the 1983 layoff. (Tr. 2:72-73). In the 
face of that inaction, the jury was 
certainly not obligated to conclude that 
the Commission was seriously enforcing a 
prohibition against retaliation, or any 
other rule.

Finally, it was far from certain 
that the agencies characterized by the 
city itself as policymakers were them­
selves untainted by the alleged retalia­
tory scheme. Personnel Director Duffe 
acknowledged that he was involved in both



103
the transfer and reclassification 
decisions. (Tr. 3:113, 144); Duffe's
insistence that he knew nothing of 
respondent's work assignments at HUD was 
directly contradicted by documentary 
evidence. (See pp. 22-23, supra). If 
the jury concluded that Duffe was sig­
nificantly involved in furthering or 
facilitating the retaliatory scheme, that 
conclusion would have called into 
question both the role of the Personnel 
Department, of which Duffe was the 
Director, and that of the Civil Service 
Commission, of which Duffe was the 
Secretary. (J.A.87). Under these 
circumstances the jury was certainly not 
required to conclude, as the city argued 
at trial, that none of the high govern­
ment officials involved in the retalia­
tory scheme were themselves municipal 
policymakers.



104
IV. THE JURY VERDICT AGAINST THE CITY 

WAS NOT INCONSISTENT WITH THE JURY'S 
VERDICT IN FAVOR OFTHE INDIVIDUAL 
DEFENDANTS
The jury's verdicts regarding the 

city and the individual defendants are, 
considered in light of the evidence and 
closing arguments, both consistent and 
entirely comprehensively. Petitioner 
grounds its challenge to the consistency 
of the verdicts on two essential premises 
—  that the only possible constitutional 
violation was an illicit purpose in 
transferring Praprotnik to HUD, and that 
the sole person responsible for that 
transfer was defendant Hamsher. Reason­
ing from these premises, petitioner 
argues that there was no rational basis 
on which a jury could exonerate Hamsher 
while imposing liability on the city. 
(P. Br. 31-32). But both of the 
underlying premises are clearly incor­
rect.



105
Petitioner does not contend that the 

~iury must have based its verdict against 
the city on the motive behind the 
transfer, rather, petitioner contends 
that this was the rationale of the 
eighth circuit. "[T]he theory upon which 
the court of appeals settled was that the 
unconstitutionally motivated act was the 
transfer." (P. Br. 34). But the evi­
dence heard by the jury presented at 
least two entirely distinct theories on 
which the jury might have imposed 
liability. First, the jury could have 
concluded that the transfer itself was 
legitimate, and that the unconstitu­
tionally motivated act was assigning 
Praprotnik such menial duties that a 
layoff was inevitable. Defendant Hamsher 
insisted he had no control over those 
assignments, arguing that the respon­
sibility for such matters lay with



106
Commissioner Jackson (Tr. 3:178, 197); 
the city attorney urged in her closing 
argument that Jackson not Hamsher was 
responsible for those assignments. (Tr. 
4:51-52). Second, the jury could have 
concluded that the transfer and HUD job 
assignments were legitimate, and that 
only the layoff itself was the result of 
a retaliatory motive. There was 
conflicting testimony as to whether 
responsibility for the layoff decision 
was in the hands of the Board of Estimate 
and Appeal, the Mayor, the Mayor's staff, 
Commissioner Killen, Director Nash, or 
one of the three named defendants. The 
jury could of course have exonerated 
Hamsher and the other named defendants if 
it believed another official had in 
reality made the improperly motivated 
layoff decision.



107
Even if one assumes that the sole or 

critical illicitly motivated action was 
the transfer, the jury verdicts are still 
not inconsistent. Petitioner asserts 
that "there is no dispute but that the 
transfer was Hamsher's decision". (P. 
Br. 42) . On the contrary, the trial 
testimony contained just such a dispute. 
Under questioning by counsel for res­
pondent, Hamsher refused to take respon­
sibility for either making or even 
aggressively advocating the decision to 
transfer Praprotnik, insisting that the 
real decision was the Mayor's alone.28

28 "Q. Isn't it fair to say, Mr.
Hamsher, that you initiated the 
thing, that you 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."



108
At another point Hamsher insisted that 
Director Nash had played a major role in 
initiating the transfer. (Tr. 3:199). 
In light of that testimony, the jury 
could rationally have concluded that the 
Mayor or Director Nash, rather than 
defendant Hamsher, were responsible for 
the transfer and had acted for illicit 
retaliatory purposes.

The substantial evidence of 
culpability by the Mayor and other non­
defendant officials, while strengthening 
the case against the city, tended to 
undercut respondent's claim that the 
three named defendants were the par­
ticular officials responsible for the 
retaliatory dismissal. A reasonable jury 
m i g h t  also have believed that

Tr. 3:200. See also Tr. 2:185 (deposi­
tion of William Edwards)("the mayor had 
the final decision").



109
respondent's dismissal was the result of 
a retaliatory motive on the part of one 
or more of the high officials involved, 
but have concluded that respondent simply 
failed to meet his burden of proving that 
the three particular officials named as 
defendants were the culpable parties.

CONCLUSION
For the above reasons the judgment 

of the court of appeals should be af­
firmed.

Respectfully submitted,

CHARLES R. OLDHAM*
317 N. 11th Street 
St. Louis, MO 63101 
(314) 231-0464

JULIUS LEVONNE CHAMBERS
ERIC SCHNAPPER

NAACP Legal Defense 
& Educational Fund 

16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Attorneys for Respondent
♦Counsel of Record



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