Mayor of Baltimore v. Guttman

ON MOTION FOR RECONSIDERATION MATRICCIANI, J. Appellants/cross-appellees Mayor and City Council of Baltimore (collectively “the City”), challenge the entry of judgment by the Circuit Court for Baltimore City after a jury verdict in favor of appellee/cross-appellant Zvi Guttman, trustee in bankruptcy for Ms. Deborah Mullins (“Ms. Mullins”), who brought a 42 U.S.C. § 1983 claim against the City alleging that she was fired for engaging in protected speech. The appellants present four issues for our consideration, which we have rephrased: I. Whether an official poliey or custom of the City of Baltimore caused the termination of Ms. Mullins’ contract.

II

Whether there was sufficient evidence to support the jury’s verdict.

III

Whether the City is entitled to judgment because the jury found that the City had grounds to terminate Ms. Mullins’ contract regardless of her protected speech. ³⁹⁹ IV. Whether the trial court erred by failing to give the jury instructions requested by the city. Ms. Mullins cross-appeal injects two further issues: I. Whether the trial court erred by granting summary judgment in favor of Edward J. Gallagher (“Mr. Gallagher”) because he is not entitled to legislative or qualified immunity- II. Whether the court’s denial of Ms. Mullins’ petition for attorney fees is an abuse of discretion.

We reverse the court’s judgment because of the lack of evidence that an official policy of the City caused the termination of Ms. Mullins’ contract and remand for entry of judgment in favor of the City. We reverse the court’s grant of summary judgment in favor of Mr. Gallagher for the reasons explained below and remand to the trial court for further proceedings in accordance with the principles enunciated in this opinion. FACTS On December 12, 2001, the City awarded Ms. Mullins’ company, Competitive Body and Paint, contract BP02055, which entitled her to bid on auto body repairs required by Baltimore City. On a weekly basis, multiple vendors would place bids on vehicles that the City wanted repaired and generally the lowest bidder would get the work.

At the time Ms. Mullins applied lor the contract, her husband, Jimmy Mullins, worked in Baltimore City’s central garage as a body man. Mr. Mullins did not work for Ms. Mullins’ company at the time the contract was awarded. Prior to bidding on the contract, Ms. Mullins spoke to Arthur McNeal, the city purchasing agent at that time, and advised him that her husband worked in the central garage. Ms. Mullins then wrote to Avery Aisenstark, director of the board of ethics of Baltimore City, requesting an opinion concerning whether her husband’s employment should prevent her from bidding on the contract.

On March 30, 2001, Mr. Aisenstark wrote a letter advising her that she could bid on the contract ⁴⁰⁰ as long as her husband “disqualified] and recuse[d] himself from any participation in the consideration, award, or implementation of that contract.” 1 Mr. Mullins’ supervisor, James Wilburn, testified that he and the Purchasing Department made all decisions regarding who was awarded auto body repair work and that he was aware that Mr. Mullins was married to Ms. Mullins. Mr. Wilburn also testified that Mr. Mullins did not get involved in the selection of cars sent out to auto repair vendors and did not inspect cars that were repaired by these vendors. On January 14, 2004, and February 19, 2004, Ms. Mullins appeared on Fox 45 newscasts and criticized Baltimore City repair practices 2 . On January 16, 2004, Leslie Winner, the Chief Solicitor for Baltimore City, sent an email to Donald Huskey, Deputy Solicitor, and George Winfield, Director of Public Works, to confirm that she had spoken with Mr. Winfield regarding a “fleet vending contract and related issues.” Ms. Winner testified at trial that the “vendor” referred to in the email was Ms. Mullins.

On February 4, 2004, Ms. Winner prepared a memorandum, addressed to Deputy Mayor Michael Enright, with copies to Thurman W. Zollicoffer, Jr., the City Solicitor; Donald Hus-key, Deputy Solicitor; George Winfield, Director of Public Works; J. Keith Scroggins, Head of the Bureau of General Services for the Department of Public Works; Matt Gallagher, Director of the mayor’s City Stat Office; and Edward J. ⁴⁰¹ Gallagher, the City’s Purchasing Agent. Ms. Winner stated in the introduction to the memo: George Winfield, Director of the Department of Public Works, and Donald Huskey, Deputy Solicitor, requested that I look into the award of the above-captioned contract to Competitive Body and Paint (“CBP”), one of the vendors. I was also asked to look at the quality of the work being performed by the said vendor, the relationship of the said vendor and a city employee and the possible debarment of the vendor. While it might be possible to eventually debar CBP from City contracts, it might be easier and more politically palatable to proceed in another manner.

Regarding a potential conflict of interest for Ms. Mullins, Ms. Winner stated in the memo: Were the relationships between and among the parties disclosed prior to award of the contract? This does not appear to be the case, although everyone seems to know about these relationships at this point in time. Finally, Ms. Winner addressed the possible debarment of Ms. Mullins: Much of what has been said about Deborah Mullins (or Jimmy Mullins) and the award of this contract has not been verified to a legal certainty. Therefore if one wished to debar this company from doing business with the City, a full investigation must be launched.

As an alternative, this contract could be terminated as to this vendor for either cause or at the convenience of the City. If the City Purchasing Agent wishes to terminate for cause, he must present proof of the default, i.e., inferior work, use of inferior materials, failure to perform in a timely manner, etc. The City Purchasing Agent could also show that Jimmy Mullins failed to notify the City of a Conflict of Interest. ⁴⁰² The easiest course to terminate this contract would be for the City Purchasing Agent to terminate for the convenience of the City. This could be done at any time and would not result in the same political fallout as the other modes of termination (or debarment). On March 29, 2004, Mr. Gallagher wrote Ms. Mullins a letter stating that on March 24, 2004, the Board of Estimates had terminated the Mullins contract.

Ms. Mullins asserted that when she called the Purchasing Department to discuss the termination, she was referred to Joseph Mazza, who advised her that part of the reason for her termination was her appearance on Fox 45. Mr. Mazza was an assistant to Mr. Gallagher. At trial, Mr. Gallagher stated: An issue of conflict of interest had arisen and counsel in the law department researched that issue and determined that there was a conflict of interest or certainly a perception of the conflict of interest. And based upon that reason I proceeded to terminate Deborah Mullins’ contract.

Mr. Gallagher also testified that he conducted no further investigation after receiving Ms. Winner’s memo and that the conflict of interest was the sole reason for the termination of Ms. Mullins’ contract. About eight months after her contract with the City was terminated, Ms. Mullins filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the District of Maryland. Zvi Guttman was appointed trustee for the Mullins bankruptcy estate. The trial court entered judgment in favor of the City on Ms. Mullins’ claim that the appellants breached her contract by firing her, after the jury found that there had been no breach.

The jury found in favor of Ms. Mullins on count three, alleging a retaliatory termination of the contract in violation of the First Amendment. The jury also found, in special interrogatory number 5 of the verdict sheet, that “At the time the contract was terminated,” the City had “knowledge or grounds to terminate the contract with Plaintiff regardless of Plaintiffs protected statement on Fox 45.” The court entered judgment ⁴⁰³ in favor of appellee in the amount of $110,000 on September 5, 2008, and an amended judgment in the amount of $120,000 on October 8, 2008. The appellants timely appealed. DISCUSSION I. The City contends that no official policy or custom of the City of Baltimore caused a retaliatory termination of Ms. Mullins’ contract.

The City argues that there is no evidence that it had an official policy or custom of retaliating against vendors for their protected speech. Moreover, the City argues that the Board of Estimates is the sole final policymaking authority in the termination of the City’s contracts. Finally, the City argues that it is not vicariously liable under 42 U.S.C. § 1983 for the acts of its employees. 42 U.S.C. § 1983 provides a ‘civil action for deprivation of rights’: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.J In Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690-91 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978), the United States Supreme Court held that municipal corporations could be sued under § 1983. The Court upheld the rule that municipalities could not be rendered liable under § 1988 based on a theory of respondeat superior.

Id. at 692, 98 S.Ct. 2018 . Thus, only when a government policy inflicted the injury could a municipality be liable under § 1983. Id. In particular, the Court held: Local governing bodies ... can be sued directly under § 1983 ... where the action that is alleged to be unconstitu ⁴⁰⁴ tional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.

Moreover ... local governments, by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to government custom even though such a custom has not received formal approval through the body’s official decisionmaking channels. Id. at 690, 98 S.Ct. 2018 . The appellants argue that Ms. Mullins failed to prove that the City had an illegal policy that injured her, and thus the City cannot be liable. See Orgain v. City of Salisbury, 521 F.Supp.2d 465, 480 (D.Md.2007) (“[A] plaintiffs burden is twofold: (i) to prove a constitutional violation (ii) proximately caused by an official policy or custom.”); see also Board of County Comm’rs v. Brown, 520 U.S. 397 , 117 S.Ct. 1382 , 137 L.Ed.2d 626 (1997) (holding that it was not sufficient for respondent merely to identify conduct attributable to the county, such as the one-time decision to hire; she also had to demonstrate that through its deliberate conduct, the county was the moving force behind the injury).

In Brown , the United States Supreme Court expanded on the meaning of “policy” and “custom” and the logic behind the requirement that one be identified before liability is imposed: Locating a “policy” ensures that a municipality is held liable only for those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality. Similarly, an act performed pursuant to a “custom” that has not been formally approved by an appropriate decision-maker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law. Id. at 404 , 117 S.Ct. 1382 (citation omitted). In Robinson v. Balog, 160 F.3d 183 (4th Cir.1998), the Fourth Circuit held that the Mayor and City Council of Baltimore were not liable for the firing of employees in the Bureau of Solid Waste of the Baltimore Department of Public ⁴⁰⁵ Works for constitutionally protected speech.

The Court held that the District Court had properly dismissed the Mayor and City Council of Baltimore because the employees did not provide proof that their speech was the ‘moving force’ behind the injury alleged. Id. at 191 . To satisfy the ‘moving force’ standard, the plaintiff must prove that the “relevant municipal action—or inaction—was taken with deliberate indifference to a plaintiffs rights.” Id. Noting that deliberate indifference is a “stringent standard of fault,” the federal appeals court held that the record must show that the municipality disregarded a known or obvious risk of its action.

Id. Ms. Mullins argues that municipal liability may be imposed for a single decision by municipal policymakers. See Pembaur v. City of Cincinnati, 475 U.S. 469 , 106 S.Ct. 1292 , 89 L.Ed.2d 452 (1986) (holding that by ordering the deputy sheriffs to enter petitioner’s clinic the county prosecutor was acting as the final decisionmaker for the county); but see Oklahoma City v. Tuttle, 471 U.S. 808, 824 , 105 S.Ct. 2427 , 85 L.Ed.2d 791 (1985) (“proof of a single incident of unconstitutional activity is not sufficient to impose municipal liability, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker.”) In St. Louis v. Praprotnik, 485 U.S. 112 , 108 S.Ct. 915 , 99 L.Ed.2d 107 (1988), the Supreme Court summarized the guiding principles to be used when examining whether even a single decision can constitute municipal policy: First, a majority of the Court agreed that municipalities may be held liable under § 1983 only for acts for which the municipality itself is actually responsible ... acts which the municipality has officially sanctioned or ordered. Second, only those municipal officials who have final policymaking authority may ... subject the government to § 1983 liability.

Third, whether a particular official has final policymaking authority is a question of state law. Fourth, the challenged action must have been taken pursuant to a policy ⁴⁰⁶ adopted by the official or officials responsible under state law for making policy in that area of the city’s business. Id. at 123, 108 S.Ct. 915 . In order for the municipality officially to sanction or order a retaliatory firing, it must be cognizant of the protected activity.

Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474 (4th Cir.2005). In Constantine , the Court held: In order to establish a causal connection between First Amendment action and an alleged adverse action, a plaintiff in a retaliation case must show, at the very least, that the defendant was aware of her engaging in protected activity. Knowledge alone, however, does not establish a causal connection between the protected activity and the adverse action. There also must be some degree of temporal proximity to suggest a causal connection.

Id. at 501 . Here, Ms. Mullins attempts to impute retaliatory animus to the Board of Estimates through circumstantial evidence, i.e., the January 16, 2004 email from Ms. Winner to Mr. Huskey and Mr. Winfield and the February 4, 2004 memo authored by Ms. Winner. 3 The Baltimore City Charter, Article VI § 1, establishes the Board of Estimates, which is comprised of the Mayor, President of the City Council, Comptroller, City Solicitor, and Director of Public Works. Ms. Mullins claims that three of the members of the Board were aware of her protect ⁴⁰⁷ ed speech and were “intimately involved in looking for a way