Kelly Laverdure v. County of Montgomery Michael D. Marino

324 F.3d 123, 19 I.E.R. Cas. (BNA) 1566, 2003 U.S. App. LEXIS 6547, 2003 WL 1786445
CourtCourt of Appeals for the Third Circuit
DecidedApril 2, 2003
Docket02-2773
StatusPublished
Cited by49 cases

This text of 324 F.3d 123 (Kelly Laverdure v. County of Montgomery Michael D. Marino) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelly Laverdure v. County of Montgomery Michael D. Marino, 324 F.3d 123, 19 I.E.R. Cas. (BNA) 1566, 2003 U.S. App. LEXIS 6547, 2003 WL 1786445 (3d Cir. 2003).

Opinion

OPINION OF THE COURT

AMBRO, Circuit Judge.

We decide whether, under the circumstances of this case, a county is liable under 42 U.S.C. § 1983 for the statements of a member of its board of commissioners and whether, under Pennsylvania law, a commissioner is entitled to absolute immunity for his statements. The District Court answered no to the first question and yes to the second. We do as well.

I. Factual Background And Procedural History

This dispute arose because of an E. coli outbreak in November 2000 traced to Mer-rymead Farms in Montgomery County, Pennsylvania (the “County”). Several parents of afflicted children called the Appellant, Kelly LaVerdure, who at the time was working as a Disease Intervention Specialist with the Montgomery County Health Department. LaVerdure purportedly failed to follow up on these phone calls and investigate the E. coli cases. Ap-pellees allege that, had LaVerdure properly performed her duties, the outbreak could have been contained earlier and fewer children would have fallen ill.

The three-member Montgomery County Board of Commissioners, Montgomery County’s executive body, unanimously decided to fire LaVerdure at a November 30, 2000 Board meeting. Following that meeting, the chairman of the Board, Michael Marino, spoke at a press conference in which he rebuked LaVerdure. LaVer-dure argues that, because she was terminated with accompanying stigmatizing comments, the Fourteenth Amendment entitles her to a “name-clearing” due process hearing. See Bd. of Regents of State Colls, v. Roth, 408 U.S. 564, 573-74, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (stating that a name-clearing hearing is required for public employees terminated with public stigma).

*125 LaVerdure’s complaint alleges (1) that the County violated her Fourteenth Amendment due process right by not affording her a name-clearing hearing, for which 42 U.S.C. § 1983 provides a cause of action, and (2) a supplemental state-law claim against Marino for slander and libel. The District Court dismissed her slander and libel claims on the ground that 42 Pa. Cons.Stat. § 8546 affords Marino absolute immunity. After LaVerdure had finished presenting her case to the jury, and with one remaining witness for the defense yet to be called, the District Court granted the County’s Rule 50 motion with respect to her § 1983 claim, thereby dismissing that claim as a matter of law. The Court denied LaVerdure’s motion for a new trial. She appeals the District Court’s dismissal of her § 1983 and state-law claims.

II. Jurisdiction And Standard Of Review

The District Court had subject matter jurisdiction over the § 1983 claim under 28 U.S.C. § 1331 and over the supplemental state-law claims under 28 U.S.C. § 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We exercise plenary review of the District Court’s grant of judgment as a matter of law. Northview Motors, Inc. v. Chrysler Motors Corp., 227 F.3d 78, 88 (3d Cir.2000). “A court should grant such a motion only if, viewing the evidence in the light most favorable to the nonmovant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability.” Id. (internal quotation marks omitted) (quoting Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Gir.1993)).

Whether Marino and the County are entitled to absolute immunity, under 42 Pa. Cons.Stat. § 8546, from the supplemental state-law claims is a question of statutory interpretation over which we also exercise plenary review. Moody v. Sec. Pac. Bus. Credit, Inc., 971 F.2d 1056, 1063 (3d Cir.1992).

III. Discussion

A. Whether Marino spoke for the Board as a policymaker

Municipalities and other bodies of local government such as Montgomery County are liable under § 1983 only if they have caused a constitutional tort through “a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); see also id. at 691 (rejecting the notion that municipalities and local governments may be liable under a theory of respondeat superior). It is undisputed that only a majority of the three-member Board is authorized to establish policy on behalf of the County. 16 Pa. Cons.Stat. § 504. Therefore, whatever the contents of Marino’s statements, because he was only one member of the Board, those comments do not constitute County policy. See City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (“[O]nly those municipal officials who have ‘final policymaking authority’ may by their actions subject the government to § 1983 liability.”).

Even though Marino himself lacked final policymaking authority that could bind the County, LaVerdure could have demonstrated that the Board delegated him the authority to speak for the Board or acquiesced in his statements. Id. at 127, 108 S.Ct. 915 (“If the authorized policymakers approve a subordinate’s decision and the basis for it, their ratification would be chargeable to the municipality because *126 their decision is final.”); Andrews v. City of Phila., 895 F.2d 1469, 1481 (3d Cir.1990) (“Given that [the police commissioner] was the official policymaker in this case, the City can be held liable only if [the commissioner] either acquiesced in [the subordinate’s] decisions or delegated his authority to him.”). LaVerdure failed to meet her burden to prove delegation or acquiescence, however. She failed even to depose the other two Board members or call them to testify at trial — methods by which she might have proved delegation or acquiescence. Thus, the District Court was correct in holding that Marino’s comments could not subject the County to § 1983 liability.

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324 F.3d 123, 19 I.E.R. Cas. (BNA) 1566, 2003 U.S. App. LEXIS 6547, 2003 WL 1786445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-laverdure-v-county-of-montgomery-michael-d-marino-ca3-2003.