JULIE E. CARNES, Chief Judge.
The above civil action is before the Court on defendants' renewed motion for summary judgment, entitled Defendants' Motion for Summary Judgment On Plaintiff's First Amendment Claim [112]. The Court has reviewed the record and the arguments of the parties and, for the reasons set out below, concludes that defendants' Motion for Summary Judgment [112] is
Plaintiff Eric Hein was terminated from his position as a Clayton County Sheriff's Deputy and brought this federal civil rights claim pursuant to 42 U.S.C. § 1983. Plaintiff alleged that defendants terminated him in retaliation for his exercise of First Amendment rights. Specifically, plaintiff contended that he was fired because of his perceived association with the previous sheriff, Victor Hill, a very controversial figure whose tenure generated much litigation and who was defeated for reelection by defendant Kimbrough. Defendants disagreed that this was their motivation, instead responding that plaintiff was fired for misconduct spanning both the Hill and Kimbrough administrations. Plaintiff also alleged that the process by which he was discharged violated his due process rights, as well as other miscellaneous Constitutional rights.
Defendants previously filed a Motion for Summary Judgment [87] as to all claims. (Defs.' Mot. for Summ. J. ("DMSJ" [87].) This Court issued a detailed Order in which it granted defendants' motion for summary judgment on the due process and other claims that were directed at the process that was used to terminate plaintiff. (Order of March 28, 2011 ("Order") [111] at 32-48.)
As to plaintiff's First Amendment retaliation claim, defendants had argued that, under existing Eleventh Circuit precedent, a sheriff is entitled to fire a deputy based on patronage considerations and, accordingly, the plaintiff's First Amendment claim was barred. (DMSJ [87] at 16-18). As a corollary to this argument, defendants argued that even if the First Amendment precluded them from firing plaintiff based on a perception of his loyalty to and support of the defendant sheriff's predecessor, the law was not clearly established on that point at the time of the dismissal, and hence defendants were entitled to qualified immunity. (Id. at 13-15.)
Finally, should the above two arguments fail, defendants contended that plaintiff could not prove a retaliatory motivation for the firing because plaintiff could not prove that defendants were aware that plaintiff had been a supporter of the previous sheriff. Even had they been, defendants argue, the evidence showed that plaintiff was fired because of his misconduct. (Id. at 18-20.)
As to the last argument, the Court concluded that, given the abbreviated and conclusory nature of defendants' advocacy on this point, as well as the sharply different inferences that the parties had drawn from the undisputed evidence, there were disputed issues of material fact concerning whether defendants had fired plaintiff because they thought he had supported Victor Hill. The Court therefore denied summary judgment for defendants on their argument that the Court, could find, as a matter of law, that plaintiff had been fired for misconduct. (Order [111] at 31, n. 12.)
As to defendants' argument that the First Amendment did not prohibit them from firing plaintiff based on his perceived
Defendants' present renewed motion for summary judgment [112] was filed after the Court ordered the parties to submit additional briefing on plaintiff's sole remaining claim.
Defendants again contend that plaintiff has not produced any evidence that his perceived political affiliation was the reason for his termination. The Court will refer to this argument as a motion for summary judgment on the merits.
In order to demonstrate a violation of his First Amendment rights, a plaintiff bears the initial burden of showing that his political affiliation was a "substantial" or "motivating" factor behind his dismissal. McCabe v. Sharrett, 12 F.3d 1558, 1565 n. 8 (11th Cir.1994) (noting that Mt. Healthy standard applies to political affiliation claims). Defendants may then rebut this claim by showing that plaintiff would have been terminated regardless of his political affiliation. Id. If this burden has been met, plaintiff then has the opportunity to demonstrate that the alleged reasons for dismissal were merely pretextual.
The Court previously denied summary judgment because disputed issues of material fact exist as to whether plaintiff's termination decision was pretextual. (See Order [111] at 31 n. 12.) Defendant Kimbrough has presented no grounds for reconsideration of this ruling. See Bryan v.
Summary judgment is therefore
As to the other defendants, the Court previously noted, in denying summary judgment on the merits, that plaintiff had failed to explain how these other defendants, who had no power to terminate him, could be held responsible for constitutional violations arising out of that termination. (Order [111] at 13.) Nevertheless, as the defendants' summary judgment motion had not focused on these defendants, individually, the Court did not address the liability of each defendant.
Individual defendants Robinson-Williams, Spain, and Evans have now addressed the above question in this second round of briefing. It is undisputed that Kimbrough's co-defendants lacked the power to terminate plaintiff. Without supervisory authority over plaintiff, they cannot be held liable for his termination. Cf. Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1523 (11th Cir.1995) (co-employees without supervisory authority over plaintiff not liable under § 1983 because they did not use state authority to create a hostile work environment); Miller v. Univ. of S. Ala., Civil Action No. 09-0146-KD-B, 2010 WL 1994910 (S.D.Ala. May 17, 2010) (DuBose, J.) (defendants with no authority to prevent reappointment of plaintiff or to otherwise alter conditions of work are not liable under § 1983).
Finally, even if defendants Robinson-Williams, Spain, and Evens could be held liable for terminating plaintiff, despite not having such authority, plaintiff has failed to demonstrate the existence of a genuine issue of material fact that these defendants conspired to violate plaintiff's rights.
Plaintiff has produced no direct evidence demonstrating that Kimbrough and his co-defendants reached an agreement to terminate him. Circumstantial evidence that a general dislike for Hill supporters pervaded the Sheriff's Office is insufficient to defeat a motion for summary judgment. Burrell, 970 F.2d at 792 ("Even well-founded allegations of widespread disapproval" of the plaintiffs' statements regarding its employer "do not permit us to infer the conspiratorial acts that would allow [plaintiff's] section 1983 claim").
As to this First Amendment claim, the two pivotal questions remain: (1) would a termination of plaintiff based on his perceived support for the defeated sheriff run afoul of the First Amendment and (2) even if it did, was the law clearly enough established to have put defendant Kimbrough on notice that the First Amendment forbade such action? As to the first question, a summary of the analysis found in this Court's first Order provides background for the present renewed motion.
In that Order, the Court noted that, as defendants had argued, plaintiff's First Amendment activity should be analyzed under the "political affiliation/patronage" line of authority, otherwise known as the Elrod-Branti test, not the political speech line of authority, otherwise known as the Pickering balancing test. (Order [111] at 16-18). In attempting to apply this first line of authority, however, the undersigned
Fortunately, given the confusing state of Supreme Court law, the defendants had cited clearer Eleventh Circuit precedent, which caselaw had recognized a sheriff's carte blanche authority to fire a deputy based on patronage considerations, unimpeded by the First Amendment. (Id. at 19-20.) That case authority, however, did not necessarily carry the day for defendants, as the two cited cases — Terry and Cutcliffe
Nevertheless, the Court undertook its own analysis of Georgia law in an effort to discern whether one could likewise attribute the same close relationship to Georgia sheriffs and their deputies that the Eleventh Circuit had inferred from an examination of Alabama and Florida law. (Order [111] at 21-23.) The Court concluded that Georgia law created the same close relationship between a sheriff and his deputies that the Eleventh Circuit had found sufficient to permit a sheriff to fire a deputy based on patronage considerations. There was a potential wrinkle not addressed by the parties, however: specifically, Clayton County had adopted a civil service system that expressly forbade terminating an employee except for cause. (Id. at 23.)
In considering whether the existence of such a system should change the analysis, the Court pointed out to counsel the case of Hill v. Watkins, 280 Ga. 278, 627 S.E.2d 3 (2006), in which the Georgia Supreme Court had examined the Clayton County Civil Service System and had concluded that it did, in fact, apply to the dismissal of 27 Sheriff's office employees by the newly-elected Sheriff Victor Hill. (Order at [111] 23-24.) Nevertheless, in so ruling, the Georgia Supreme Court did not opine as to whether a dismissal in violation of the civil service system would implicate First Amendment rights. Further, as the Order noted, the precedent established by Hill is uncertain, however, because, in text, the Supreme Court held that Clayton County could not fire deputies or other staff members without complying with the civil service plan, but, then in a footnote, the court stated: "Our holding today is in no way intended to diminish the autonomy granted to the sheriff to appoint or discharge employees... or to maintain the independence of his elected position." (Order [111] at 30, citing Hill, 280 Ga. at 281 n. 3, 627 S.E.2d 3.)
In its renewed briefing on this question, defendant reiterated that it had complied with the Clayton County Civil Service Act in dismissing the plaintiff, because there was good cause for the termination, as required by the Act: specifically, plaintiff's neglect of duty, conduct unbecoming, negligence in performing duties, misconduct, and failure to obey a rule.
As to the impact on plaintiff's First Amendment claim of a civil service requirement that an employee be dismissed only for cause, defendant reiterates the line of Eleventh Circuit authority holding that, given the close relationship between a sheriff and his deputy, a sheriff can fire a deputy based on the latter's support of a political opponent of the sheriff. Defendant specifically notes that, notwithstanding its awareness that in 1995 Florida had enacted civil service protection for deputy sheriffs who had engaged in political activity,
Finally, defendant asserted that even if the termination here violated the civil service rules, that violation did not give rise to a First Amendment claim by the plaintiff. Indeed, defendant notes that, undermining plaintiff's now belated claim that his dismissal contravened the county's civil service act is that fact that the plaintiff never even filed an appeal of his dismissal to the Civil Service board. (Defs.' Br. [112-1] at 21.)
In his response to defendant's second motion for summary judgment, plaintiff does not provide any analysis of the impact of a civil service rule on the First Amendment issue here.
The Eleventh Circuit has recently issued a decision that has brought some welcome clarity to the question concerning the circumstances under which an elected state official can fire a political adversary, or a supporter of an adversary, without running afoul of the First Amendment rights of the employee. In Underwood v. Harkins, 698 F.3d 1335 (11th Cir.2012), two deputy clerks ran for the position of clerk of the superior court, after the incumbent had decided to retire. Upon being sworn in, the winning deputy fired her former political rival. The latter then sued, arguing that this dismissal violated the First Amendment, as it was obviously based on
In addressing this question, the panel first noted the "muddled" state of First Amendment jurisprudence concerning firings based on political affiliation or candidacy. Underwood, 698 F.3d at 1338. After exhaustively dissecting the relevant Supreme Court and Eleventh Circuit precedent, the panel identified two principles that seemed clear: (1) candidacy dismissals (as in Underwood) are to be treated like candidate support dismissals (as in this case) and (2) an individual's First Amendment interest in candidacy (or in supporting a candidate) "has to be balanced against the interests of the state" in the "confidentiality and loyalty" of employees. Id. at 1340.
In deciding how that balancing test should be applied in the case before it involving a Georgia county clerk of court, the panel relied heavily on its precedent concerning the right of a sheriff to dismiss a deputy, based on political grounds. Thus, the panel noted that Terry v. Cook, 866 F.2d 373 (11th Cir.1989), noted the "closeness and cooperation" between a sheriff and his deputies that "necessitate[d] the sheriff's absolute authority over their appointment and retention." Underwood, 698 F.3d at 1341 (internal citation omitted). The panel noted that, in reaching this conclusion, the Terry court drew heavily on the duties of a deputy set out by Alabama statute.
Likewise, the panel relied on Stegmaier v. Trammell, 597 F.2d 1027 (5th Cir.1979), in which the former Fifth Circuit, examining the relationship between a court clerk and deputy clerk, as specified by statute, concluded that the latter established a "confidential relationship" between the two individuals. Given that "confidential relationship," the former Fifth Circuit also concluded that it was necessary that the clerk "be able to select a deputy in whom he has total trust and confidence and from whom he can expect, without question, undivided loyalty." Underwood, 698 F.3d at 1342 (internal citation omitted).
The court in Underwood made clear that, in determining whether a "confidential" relationship existed as a matter of law, one must take a "categorical approach," that looks, not to the duties that might actually be assigned to the subordinate, but to the duties that the law has conferred on this person. "What matters in a case like this one is not what the subordinate actually does on a day-to-day basis, but rather what the subordinate is legally empowered to do under state or local law." Id. at 1344.
The panel left open the possibility that a subordinate could occupy a "confidential" relationship even where that relationship was not clearly set out in the statutes conferring authority on the subordinate. In the latter situation, however, a factual exploration of the actual duties of the subordinate — and thereby the actual need to demand loyalty — is necessary. To find, as a matter of law, that a subordinate occupies a confidential relationship, however, a court must determine that the subordinate is effectively the "legal alter ego of the official." Id. at 1345.
From all of the above analysis, the panel determined that, as the Georgia legislature had given the deputy clerk the same powers as the clerk, the clerk could fire the deputy, even if that dismissal was motivated by the deputy's decision to compete with the clerk in the election for that position. Id.
As set out in this Court's original Order, the powers conferred on a deputy sheriff under Georgia law are comparable to those powers conferred by Alabama and
The potential wrinkle identified in the first Order — the existence of a county civil service ordinance that permits a dismissal, even of deputy sheriffs, only for cause — was not addressed by Underwood. Indeed, the decision in that case indicated that in the county at issue — Lumpkin County — a superior court deputy clerk is an at-will employee who is not protected by the civil service system. Underwood, 698 F.3d at 1337. There was no indication by the court, however, that this fact made any difference in its analysis.
Further, other than the defendant's citation of the Silva decision, the parties have not provided the Court with any legal authority on this point. Silva is not unimportant though. Prior to the issuance of Silva, the Eleventh Circuit had issued Cutcliffe v. Cochran, 117 F.3d 1353 (11th Cir. 1997), in which the author of the main opinion had unenthusiastically upheld the right of the Florida sheriff to fire his deputy on political patronage grounds, so ruling only because she concluded that the court's precedent in the Terry Alabama sheriff case required this result. Id. at 1357 (Terry opinion constituted a "broad holding that sheriffs have the authority to fire their deputies for political affiliation reasons") and at 1358 (plaintiff's claim that selective firings based on partisan considerations is "precluded by Terry," which "only the en banc court can reverse.").
A concurring opinion in the Cutcliffe decision disagreed with the above suggestion that Terry might have been wrongly decided. Id. at 1360. At any rate, this concurring opinion noted that these types of dismissals would not recur in the future, given the fact that, in 1995, the state of Florida enacted a statute that specifically gave protection to deputy sheriffs against such types of dismissal based on "lawful off-duty political activity." Id. at 1360-61.
That prophecy was inaccurate, however, as Silva v. Bieluch, 351 F.3d 1045 (11th Cir.2003), issued six years later, involved the dismissal of a Florida deputy sheriff based on alleged political patronage concerns. There, once again, Florida deputy sheriffs were treated adversely (demoted, in this case) by the newly-elected sheriff, whose opponent the deputies had supported. Id. at 1046. The existence of a civil service plan (not mentioned by the panel) did not prevent the panel from stating:
Id. at 1047. Therefore, the court concluded that the plaintiff deputy sheriffs had failed to state a claim under the First Amendment. Id.
In short, there is no Eleventh Circuit law indicating that the existence of local civil service protection undermines the precedent set in Terry. Further, in Silva, the Eleventh Circuit upheld the principle
Moreover, the Court does not consider the case that prompted the rebriefing in this case — Hill v. Watkins, 280 Ga. 278, 627 S.E.2d 3 (2006) — to require a different result. As noted in this Court's first order, Watkins arose out of the decision of Clayton County Sheriff Victor Hill to summarily fire 27 employees of the Clayton County Sheriff's Office (some of whom were presumably deputy sheriffs). These employees sued, complaining that their dismissal violated the Clayton County Civil Service Act of 1994. The case made its way to the Georgia Supreme Court, where Sheriff Hill argued that Clayton County had not correcting followed the appropriate Georgia enabling statutes when the county created a civil service system and that, accordingly, these 27 employees were not covered by the Act. Id. at 278, 281, 627 S.E.2d 3.
Although the Georgia Supreme Court concluded that these employees were protected by the Act, that court nowhere focused on deputy sheriffs, in particular, or the interaction between a civil service system and the First Amendment, in general. Instead, the court's analysis was limited to deciding whether the county had properly included the members of the sheriff's office in its newly-promulgated civil service system in 1994. Dissecting the very complicated and confusing Georgia law concerning how a county may properly adopt such a system for its employees, the court concluded that, the constitutional and statutory prerequisites having been met, the law only required that 50% of the employees of the Clayton County Sheriff's Office had to vote to be included in such a system. Because a majority so voted, all the members of that office were covered. Id. at 281, 627 S.E.2d 3.
As noted, although the Georgia Supreme Court found the plan to apply to the employees of the sheriff's office, the court nonetheless cautioned that it did not intend "to diminish the autonomy granted to the sheriff to appoint or discharge employees... or to maintain the independence of his elected position." Id. at 281 n. 3, 627 S.E.2d 3 (internal citations omitted). Also as noted earlier, the court had no occasion to opine on the impact of this local county civil service system on a federal First Amendment claim challenging the sheriff's right to fire employees perceived to be politically disloyal.
In trying to anticipate whether the Eleventh Circuit might alter its Terry precedent based on the existence of civil service protections for a deputy sheriff, the Court notes that Terry and its progeny look to how state law defines the relationship between an elected official and his subordinates to determine whether the latter is an alter ego for the official, such that the former has carte blanche to fire the subordinate for political opposition that would otherwise be protected by the First Amendment. The key focus here would seem to be "state law." For sure, a civil service system for a particular county or particular county governmental agency can only be established in compliance with state law and procedures. Yet, it is not state law in the sense that the State has made a global decision that a particular job category, such as deputy sheriff, will be protected from dismissal across the state. Instead, these systems are created only when the particular county seeks them.
While the undersigned has not endeavored to become an expert in this area of Georgia law, the limited research done has made clear that civil service systems in the
Further, that a county has adopted a civil service system does not mean that an employee will necessarily be able to engage in political activity, as the county apparently determines the parameters of its plan. As noted, at the time of the firings in this case, the Clayton County plan indicated that an employee could be fired for political activities in violation of the plan. Apparently, plaintiff's activities did not contravene that provision, whatever its particulars may have been.
A rule that would tether the scope of the First Amendment to the particular variables of a given county's civil service plan would create bizarre consequences that bear little relation to the underpinnings of that Amendment or to the exceptions that have been found to be acceptable in the case of public employment. It would mean that, in Georgia, deputy sheriffs in some counties might have a First Amendment right against dismissal based on political patronage, while deputies in other counties would not. The difference would arise only because of the particular civil service plan in effect in the county that employed the deputy. Moreover, a deputy sheriff subject to a county civil service system that permits political activity can obtain relief simply by challenging his dismissal pursuant to that plan.
In short, there are strong reasons to conclude that Terry and its progeny dictate the result in this case: meaning that the sheriff here did not violate the First Amendment rights of plaintiff even if he fired plaintiff because he believed the plaintiff to be a supporter of the sheriff's political rival.
Yet, whether or not the Sheriff violated plaintiff's First Amendment rights in firing him, the Sheriff can still escape liability if
As set out above, it is far from obvious that plaintiff has established the violation of a constitutional right in this case. As set out below, it is plain that, even were there such a right, it was not clearly established.
The pivotal question in determining qualified immunity here is whether the law advocated by the plaintiff was clearly established at the time of the alleged misconduct. It is the plaintiff's burden to establish both the existence of a constitutional violation and that the law was clearly established at the time of the violation. Youmans v. Gagnon, 626 F.3d 557, 562 (11th Cir.2010). A law may be clearly established in this circuit only by decisions of the United States Supreme Court, the Eleventh Circuit, or the state supreme court. Id. at 565.
Plaintiff has failed to meet this second prong of the test, and indeed has made little effort to do so. As discussed above, there are no Supreme Court or Eleventh Circuit holdings that indicate that Sheriff Kimbrough's dismissal of plaintiff violated the latter's First Amendment rights. While this Court, and not the plaintiff, did identify in its first Order a Georgia Supreme Court case that concluded that the Clayton County Civil Service Act applied to employees of the Sheriff's Office there, that opinion did not establish that dismissal of a deputy sheriff based on the latter's support of a political rival, and in violation of the provisions of that Act, would violate the First Amendment. See Autery v. Davis, 355 Fed.Appx. 253, 256 (11th Cir.2009) (Alabama sheriff was entitled to qualified immunity when he fired two deputies, based in part on patronage considerations; Terry decision authorized such dismissal, and
Accordingly, Sheriff Kimbrough is entitled to qualified immunity on plaintiff's First Amendment claim and therefore to summary judgment.
For the foregoing reasons, defendants' Motion for Summary Judgment [112] is
Likewise, defendant Kimbrough has not argued that responsibility for plaintiff's termination under § 1983 cannot be attributed to him because he was not the official with final decision-making authority over terminations. See Maschmeier v. Scott, 269 Fed.Appx. 941, 943 (11th Cir.2008) (municipal official who fires an employee is not a final policymaker for § 1983 purposes, where that decision is subject to meaningful administrative review, as the board reviewing the termination decision has the power to overturn it); Quinn v. Monroe Cnty., 330 F.3d 1320, 1326 (11th Cir. 2003) (the same).
As the Clayton County Civil Service Board would presumably have been empowered to reverse the termination decision, had plaintiff appealed that decision to the them, the Court suspects that the above argument would have been a winning argument for defendant, and would have saved the Court and parties the time expended on the more esoteric First Amendment issue. As it was not made, however, the Court proceeds with the First Amendment analysis, set out below.
