RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                      File Name: 07a0407p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                         X
                                  Plaintiff-Appellant, -
 BRENDA MURPHY,
                                                          -
                                                          -
                                                          -
                                                              No. 06-5897
            v.
                                                          ,
                                                           >
 LINDA COCKRELL,                                          -
                                 Defendant-Appellee. -
                                                         N
                         Appeal from the United States District Court
                       for the Eastern District of Kentucky at Lexington.
                        No. 05-00229—Karl S. Forester, District Judge.
                                Submitted: September 14, 2007
                             Decided and Filed: October 4, 2007
                     Before: MARTIN, GUY, and CLAY, Circuit Judges.
                                     _________________
                                          COUNSEL
ON BRIEF: Ned B. Pillersdorf, Joseph R. Lane, PILLERSDORF, DeROSSETT & LANE,
Prestonsburg, Kentucky, for Appellant. Grover A. Carrington, Farrah Williams Ingram, WHITE
PECK CARRINGTON, Mt. Sterling, Kentucky, for Appellee.
       MARTIN, J., delivered the opinion of the court, in which CLAY, J., joined. GUY, J. (p. 9),
delivered a separate opinion concurring in part and dissenting in part.
                                     _________________
                                         OPINION
                                     _________________
        BOYCE F. MARTIN, JR., Circuit Judge. Brenda Murphy brought suit against Linda
Cockrell, as an individual and in her official capacity as Montgomery County, Kentucky, Property
Valuation Administrator (PVA), alleging violations of the First, Fourth, and Fourteenth
Amendments and wrongful discharge arising out of her dismissal from the Montgomery County
PVA office. Murphy now appeals the district court’s grant of summary judgment in favor of
Cockrell only as to her First and Fourteenth Amendment claims and her wrongful discharge claim.
For the reasons that follow, we REVERSE the district court’s grant of summary judgment on
Murphy’s First Amendment claim and wrongful discharge claim, and AFFIRM summary judgment
as to the Fourteenth Amendment claim.




                                                1
No. 06-5897           Murphy v. Cockrell                                                      Page 2


                                                  I.
         The previous Montgomery County PVA officially retired on May 31, 2004. At that time,
both Murphy and Cockrell had worked on the PVA staff for many years. Cockrell was Chief Deputy
PVA while Murphy was a deputy PVA. On July 8, 2004, Cockrell was nominated as the Republican
Party candidate for PVA, and subsequently, on July 19, 2004, Governor Ernie Fletcher appointed
her as interim PVA. Shortly thereafter, Murphy was nominated as the Democratic Party’s candidate
for PVA.
        Upon her appointment by Governor Fletcher to interim PVA, Cockrell moved Murphy from
the front office to the back office, where she would not have public contact. Cockrell also asked
Murphy to not take any calls at the PVA office related to her real estate business. Cockrell
requested Murphy return her office key so that she could be sure that Murphy was not using PVA
resources for campaign purposes.
        Apparently, the campaign was a spirited one, as both parties greatly coveted the title of
Montgomery County Property Valuation Administrator and all of the accoutrements that accompany
such a position. Not surprisingly, the campaign created a great deal of tension between the parties
at the PVA office. Apparently, Murphy’s campaign signs attacked Cockrell’s perceived
inexperience in real estate valuations and also found fault with Cockrell’s change of party allegiance
shortly before her nomination as the Republican candidate.
       On November 2, 2004, Cockrell was elected Montgomery County PVA. Two days later,
apparently in accord with what must be a very efficient and businesslike office, Cockrell sent
Murphy a letter stating only the following: “Your services are no longer required, effective
immediately.” Murphy appealed her termination to the Kentucky Personnel Board, but was
unsuccessful. On June 1, 2005, Murphy filed suit in this Court pursuant to 42 U.S.C. § 1983 against
Cockrell individually and in her official capacity, alleging violation of her rights under the First,
Fourth, and Fourteenth Amendments. Murphy brought state law claims for wrongful discharge and
outrage. She seeks compensatory damages for all lost benefits, reinstatement as deputy clerk in the
PVA office, damages for pain and suffering, as well as $4 million in punitive damages and
attorneys’ fees.
        The district court granted summary judgment in favor of Cockrell on each of Murphy’s
claims. Murphy appeals only three of the court’s rulings on summary judgment: (1) the dismissal
of her section 1983 claim for violation of her First Amendment right to free speech; (2) the dismissal
of her section 1983 claim for violation of her Fourteenth Amendment right to due process; and
(3) the dismissal of her state law claim for wrongful discharge.
                                                 II.
         This Court reviews a district court’s grant of summary judgment de novo. Monette v.
Electronic Data Sys. Corp., 

, 1176 (6th Cir.1996). Summary judgment is appropriate
if, pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(c). Additionally, this Court must construe the facts and draw
all inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

, 587-88 (1986).
                                   1.   First Amendment Claim
       Murphy claims her termination by Cockrell violated her First Amendment rights to free
speech and free association. Murphy argues that she was terminated for expressing her political
No. 06-5897               Murphy v. Cockrell                                                                      Page 3


views during her candidacy. She bolsters this argument with Cockrell’s own deposition testimony
stating that Murphy was not fired due to her candidacy, but rather due to the manner in which she
campaigned. According to Murphy, the manner in which she campaigned was an expression of her
political viewpoint, and was thus protected under the First Amendment.
         “To demonstrate First Amendment protection, a public employee must show (1) that the
speech at issue addresses a matter of public concern, and (2) that the employer had no overriding
state interest in efficient public service that would be undermined by the speech.” Silberstein v. City
of Dayton, 

, 318 (6th Cir. 2006) (citing Pickering v. Bd. of Educ., 

, 568
(1968)). As it is undisputed that Cockrell terminated Murphy due to her political speech during the
course of her campaign, we must determine whether Murphy’s campaign speech “address[ed] a
matter of public concern” and thus should be afforded First Amendment protection, and then
whether Cockrell had an overriding interest in terminating Murphy to ensure that the efficient public
service of the PVA office would not be undermined.
                                               A.     Protected Speech
         The issue before this Court is whether Murphy’s speech during the course of her campaign
was protected under the First Amendment. We have previously held that there is no protected right
to candidacy under the First Amendment, and a public employee may be terminated because of the
fact of that employee’s candidacy. Carver v. Dennis, 

, 850-51 (6th Cir. 1997).
However, we limited our holding in Carver to the question of whether the First Amendment
recognized a government employee’s ability to run for office as a fundamental right. We cautioned
that the “constitutionality of dismissing Carver, a government employee, for her political beliefs,
her expression of those beliefs, or her political affiliations is not before us.” 

Subsequently, courts within this Circuit have warned against reading Carver too broadly. See
Becton v. Thomas, 

, 756 (W.D. Tenn. 1999) (“There is no question that the court
found no fundamental right to political candidacy. Nevertheless, the Sixth Circuit clearly had no
intention of using the Carver case to resolve the broader question of whether the First Amendment
ever provides any protection for an individual’s right to run for political office.”). At least three
district courts have been asked to construe the holding in Carver, and have come to the conclusion
that dismissal because of candidacy does not violate the First Amendment, absent some showing that
the termination was motivated by the employee’s political beliefs, expressions, affiliation, partisan
political activity, or expression of opinion. See Greenwell v. Parsley, 

, at *1
(W.D. Ky. 2007); Cupit v. Charter    Twp. of Mundy, 

, at *2-3 (E.D. Mich., 2006);

.1 In the present case, Cockrell expressly stated at deposition that if
Murphy had simply remained a candidate, and not actively campaigned, she would have been
allowed to keep her job. Thus, because Murphy was not terminated based on the fact of her
candidacy, this case does not fall within the narrow holding of Carver.

         1
           Recently, a panel of this Court also questioned the validity of Carver, but nonetheless determined that where
an employee is fired strictly because of the fact of that employee’s rival candidacy, the First Amendment has not been
violated. Myers v. Dean, 216 F. App’x 552, 553-54 (6th Cir. 2007). Other Circuits have not followed Carver, rather,
they have found that “[d]isciplinary action discouraging a candidate’s bid for elective office represent[s] punishment by
the state based on the content of a communicative act protected by the First Amendment.” Finkelstein v. Bergna, 

, 1453 (9th Cir. 1991); see also Stiles v. Blunt, 

, 265 (8th Cir. 1990) (recognizing “the right to
run for public office”); Flinn v. Gordon, 

, 1554 (11th Cir. 1985) ( “[H]e certainly had a constitutional right
to run for office and to hold office once elected . . . .”); Washington v. Finlay, 

, 927-28 (4th Cir. 1981)
(recognizing “[t]he [F]irst [A]mendment’s protection of the freedom of association and of the rights to run for office,
have one’s name on the ballot, and present one’s views to the electorate”); Newcomb v. Brennan, 

, 829 (7th
Cir. 1977) (holding that the “plaintiff’s interest in running for Congress and thereby expressing his political views
without interference from state officials ... lies at the core of the values protected by the First Amendment”); Magill v.
Lynch, 

, 27 (1st Cir. 1977) (“It appears that the government may place limits on campaigning by public
employees if the limits substantially serve government interests that are important enough to outweigh the employees’
First Amendment rights.” (emphasis added)).
No. 06-5897            Murphy v. Cockrell                                                          Page 4


         Our task is to answer the question left unanswered by Carver: whether the First Amendment
protects a public employee from termination based on that employee’s political expressions during
her own candidacy. The holding in Carver was based on two decisions which are of little relevance
to this case. 

(citing Bullock v. Carter, 

, 143 (1972), and
Clements v. Fashing, 

, 963 (1982)). In Bullock v. Carter, the first of these decisions,
the Supreme Court held simply that states have no obligation to permit a person’s name to appear
on the ballot. 

(“[T]he Texas system creates barriers to candidate access to the
primary ballot, thereby tending to limit the field of candidates from which voters might choose. The
existence of such barriers does not of itself compel close scrutiny.”) Furthermore, while Clements
v. Fashing, the second case which Carver relied upon, did uphold a law prohibiting certain elected
officials from running for the state legislature, the decision expressly distinguished cases where a
civil servant is the 

. Carver expanded the holdings in these two cases to
fit the broader proposition that there is no fundamental right to candidacy protected by the First
Amendment, but Carver did not, and could not under the holdings of these cases, go any further.
        In addition to Bullock and Clements, Carver also relied on the Supreme Court’s opinion in
Connick v. Myers, in which the Court made clear that the First Amendment protects the right of
public employees to participate in speech involving public affairs. 

, 144-45 (1983)
(“[S]peech concerning public affairs is more than self-expression; it is the essence of
self-government. Accordingly, the Court has frequently reaffirmed that speech on public issues
occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special
protection.” (Internal quotation marks and citations omitted)). Connick and its progeny protect the
rights of public employees to support parties of their choice, see, e.g., Keyishian v. Bd. of Regents
of Univ. of State of N.Y., 

(1967), and to campaign for candidates of their choice,

(“Support of a political candidate falls within the scope of the right of
political association.”).
         The teaching of the above cited cases leads us to believe that if Murphy supported another
candidate in the race for Montgomery County PVA other than Cockrell, such conduct would be
protected by the First Amendment. In fact, if Murphy had simply actively campaigned against
Cockrell, but had not become a candidate herself, her speech would be protected. Cockrell argues
that the fact that Murphy was a candidate, and supported herself as such, is reason enough under
Carver to justify Murphy’s termination. We decline to extend Carver in such a manner. Carver
itself distinguished cases in which candidates had been singled out or treated differently based on
their political viewpoints or expressions, noting that Carver was dismissed solely based on the fact
of his candidacy, not his political views. 

. We expressly recognized in
Carver that while the mere fact of candidacy was not constitutionally protected, the expression of
one’s political belief still fell under the ambit of the First Amendment. Accordingly, we now hold
that the fact that Cockrell fired Murphy due to Murphy’s political speech during the course of her
campaign — rather than the mere fact of Murphy’s candidacy — is enough to trigger protection
under the First Amendment. Cf. 

at 853 (“To hold otherwise, on the facts of this case,
would be to read out of the entire line of relevant Supreme Court precedent the factual requirements
of political belief, expression and affiliation, partisan political activity, or expression of opinion, and
to read into that precedent a fundamental right to candidacy.”).
        Because we hold that Murphy’s speech during the course of her campaign is protected under
the First Amendment, we quickly address the district court’s determination that the speech used by
Murphy during her campaign was not an actual expression of political beliefs, and thus not worthy
of protection. The district court found that during the course of the campaign, Murphy merely called
into question Cockrell’s experience and party affiliation. The district court held that because such
speech was not an expression of political views or beliefs, Murphy did not engage in protected
conduct. Murphy argues that “the ultimate political consideration in any race is who is the better
candidate . . . To suggest that the endorsement of a candidate is not the expression of a political
No. 06-5897            Murphy v. Cockrell                                                         Page 5


belief borders on the ludicrous.” Appellant’s Br. at 10. We believe Murphy is correct. In Sowards,
this Court stated that “support for a political candidate falls within the scope of the right of political

. Thus, if Murphy had been holding the same signs with the same
message in support of another candidate running against Cockrell, her activities would have been
protected by the First Amendment. The district court’s ad hoc determination that the message
conveyed by Murphy’s campaign was not “political” enough to warrant protection is without support
and is in error. As the Supreme Court stated, “[i]f there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics
. . . .” Elrod v. Burns, 

, 356 (quoting Bd. of Educ. v. Barnette, 

, 642
(1943)).
                                    B.    Overriding State Interest
        Having held Murphy’s speech during the course of her campaign to be protected under the
First Amendment, we must now determine whether Cockrell had an “overriding state interest in
efficient public service that would be undermined by [Murphy’s] speech,” 

, and thus was entitled to terminate Murphy.
        We employ the balancing test outlined in Pickering v. Bd. of Educ., 

, 574
(1983), to determine if Murphy’s free speech interests outweigh Cockrell’s interests in maintaining
an efficient PVA office. Scarbrough v. Morgan Cnty. Bd. of Educ., 

, 255 (6th Cir.
2006). Murphy’s speech during the course of her campaign “will not be considered in a vacuum;
the manner, time, and place of the employee’s expression are relevant, as is the context in which the
dispute arose.” 

In order to justify Murphy’s termination, her speech must “impair
discipline by superiors, have a detrimental impact on close working relationships, undermine a
legitimate goal or mission of the employer, impede the performance of [Murphy’s] duties, or impair
harmony among co-workers.” Akridge v. Wilkinson, 178 F. App’x 474, 479-80 (6th Cir. 2006)
(citing Rankin v. McPherson, 483 &.S. 378, 388 (1987)). Cockrell bears the burden of “showing
a legitimate justification for discipline.” 

nor the district court, has addressed the Pickering balancing test. Due to the
de novo nature of our review of this matter, we attempt to parse from the record the possible
government interests in terminating Murphy, and whether those interests outweigh Murphy’s First
Amendment right to engage in political speech.
        Our analysis under Pickering requires us to give full consideration Cockrell’s interest in the
effective and efficient fulfilment of the PVA office’s responsibilities to the public. See 

. Cockrell presented no evidence that Murphy’s speech impeded her duties at the
PVA office. Cockrell also made no showing that Murphy’s speech undermined any of the legitimate
goals or missions of the PVA office, namely the accurate assessment of real property in Montgomery
County, the conveying of deeds, and the adjustment of tax bills based on property assessments. The
only apparent negative impact of Murphy’s campaign was the deterioration of her relationship with
Cockrell, and the resultant tension in the PVA office.
         The question then becomes whether Cockrell’s interest in reducing the tension in the PVA
office outweighed Murphy’s First Amendment right to express her political views. As has
previously been decided by this Court, supporting a political party or candidate of one’s choosing
is a fundamental right protected under the First Amendment, 

, and as such,
it is impermissible to allow a superior to terminate an employee simply because tensions that did not
impede the functions of the workplace arose over such protected speech. 

. It would contravene the intent of the First Amendment to permit Cockrell to dismiss Murphy
due to her speech and political beliefs in this way. 

          Murphy v. Cockrell                                                        Page 6


       Because it is not disputed that Cockrell terminated Murphy because of Murphy’s political
speech during the campaign, which we now hold was protected political expression under the First
Amendment, and no countervailing governmental interest can be found, Murphy has stated a valid
claim under section 1983 for violation of her First Amendment rights.
                                    C.    Elrod-Branti Exception
       Cockrell argues that even if Murphy was discharged because of her political beliefs and
expressions, she is entitled to qualified immunity under the Elrod-Branti exception. We find that
Murphy was not in a confidential or policymaking position as deputy PVA, and thus does not fall
under any category of the Elrod-Branti exception.
        The Supreme Court in 

, and Branti v. Finkel, 

, 518
(1980), held that “certain public employees in confidential and policymaking positions may be
dismissed on the basis of their political affiliation without violating the First Amendment.”

. In order to determine whether Murphy’s position as deputy PVA falls
under the Elrod-Branti exception, this Court must “look beyond the mere job title and examine the
actual duties of the specific position.” 

v. Testa, four categories of positions that fall
under the exception were identified:
       Category One: positions specifically named in relevant federal, state, county, or
       municipal law to which discretionary authority with respect to the enforcement of
       that law or the carrying out of some other policy of political concern is granted;
       Category Two: positions to which a significant portion of the total discretionary
       authority available to category one position-holders has been delegated; or positions
       not named in law, possessing by virtue of the jurisdiction’s pattern or practice the
       same quantum or type of discretionary authority commonly held by category one
       positions in other jurisdictions;
       Category Three: confidential advisors who spend a significant portion of their time
       on the job advising category one or two position-holders on how to exercise their
       statutory or delegated policymaking authority, or other confidential employees who
       control the lines of communication to category one positions, category two position
       or confidential advisors;
       Category Four: positions that are part of a group of positions filled by balancing out
       political party representation, or that are filled by balancing out selections made by
       different governmental agents or bodies.

, 1557 (6th Cir. 1996)(footnotes omitted)(emphasis in original).
         Only the first two categories are relevant here. Cockrell argues that her position obviously
falls within Category One as a political position defined by state law, and that Murphy’s position
falls into Category Two because Cockrell delegated a significant portion of her discretionary duties
to Murphy in her role as deputy PVA. While Cockrell’s position may very well fall within Category
One — a proposition that is far from conclusive — Murphy’s position does not fall within Category
Two.
        In McCloud, this Court found the following positions within a county auditor’s office fell
outside the Elrod-Branti exception: (1) real estate division administrator, (2) personal property tax
division administrator, and (3) estate tax administrator. Specifically, McCloud found that the real
estate division administrator’s duties consisting of the valuation of real estate for property tax
purposes fell outside any of the four categories listed above. McCloud also found that where the
No. 06-5897           Murphy v. Cockrell                                                        Page 7


personal property tax administrator’s duties consisted of distributing, collecting, and auditing
property tax returns, those duties also fell outside of the exception. These positions arguably contain
more discretionary duties than that of Murphy’s position as deputy PVA. Murphy was responsible
for deed conveyances, tax exonerations, and tax assessments. Many of these responsibilities are
governed by Kentucky statute. See, e.g., K.R.S. § 132.810; K.R.S. 133.110; K.R.S. 133.170. A
deputy PVA’s discretionary authority merely involves applying the rules and standards set forth in
these statutes. Murphy was not in a confidential or policymaking position as deputy PVA; her
position was more akin to those found to fall outside the exception in McCloud. Therefore, we find
that Cockrell is not entitled to qualified immunity under the Elrod-Branti exception.
                                 2.   Fourteenth Amendment Claim
        The district court held on summary judgment that Murphy had no reasonable expectation of
continued employment in her position with the PVA’s office, and thus had no protected property
interest under the Fourteenth Amendment. The district court reached this conclusion based on the
fact that Murphy was an at-will employee who, according to Kentucky law, could “be discharged
for any reason, including a bad reason, no reason or for political reasons . . . .” Martin v. Correction
Cabinet of Commonwealth, 

, 860 (Ky. 1991). Accordingly, her section 1983 claim
for violation of her rights under the Fourteenth Amendment was dismissed.
       The district court was correct in its determination.
                           3.   State Law Claim for Wrongful Discharge
        The district court’s decision dismissing Murphy’s wrongful discharge claim relied on Bennet
v. Jones, 

(Ky. App. 1993). In Bennett, it was held that a deputy PVA has no claim
for wrongful discharge when the PVA fires her for announcing her intent to run for the PVA
position. This was based on Kentucky’s policy that an unclassified at-will employee may be
discharged for any reason, including political reasons. See 

.
Additionally, Kentucky statutory law provides that a deputy PVA serves at the pleasure and
discretion of the PVA. K.R.S. § 139.590(8). Because no contrary statutory authority was raised,
the district court found that there was no policy in Kentucky protecting a deputy PVA from
termination when that person decides to run for the PVA position.
        However, this analysis ignores the fact that Murphy has shown a protected United States
constitutional right under the First Amendment to express her political beliefs during the course of
her campaign, as discussed above. In Kentucky, “[a]n at-will employee has a cause of action for
wrongful discharge when the discharge is contrary to fundamental and well-defined public policy
as evidenced by constitutional or statutory provision.” Stargle v. Pamida, 

, at *2
(W.D. Ky. 2007) (citing Boykins v. Hous. Auth. of Louisville, 

, 529 (Ky. 1992)).
Because Murphy has shown a fundamental policy under the United States Constitution against the
discharge of public employees for voicing their political beliefs – as distinguished from merely
becoming a candidate – she may maintain a claim for wrongful discharge.
                                                  III.
      Based on the foregoing reasons, we REVERSE the district court’s decision on summary
judgment dismissing Murphy’s section 1983 claim for violation of her First Amendment rights,
AFFIRM the district court’s decision dismissing Murphy’s Fourteenth Amendment claim, and
REVERSE the district court’s grant of summary judgment on Murphy’s wrongful discharge claim.
We REMAND for further proceedings in accordance with this ruling.
No. 06-5897           Murphy v. Cockrell                                                        Page 8


                   _________________________________________________
                     CONCURRING IN PART, DISSENTING IN PART
                   _________________________________________________
        RALPH B. GUY, JR., concurring in part and dissenting in part. I agree that summary
judgment was properly granted to the defendant on the plaintiff’s due process claim, but respectfully
dissent from the reversal of the decision granting summary judgment to the defendant on the First
Amendment claim under 42 U.S.C. § 1983 and the state law wrongful discharge claim.
         At the heart of my disagreement is my view that the evidence presented by Murphy herself
demonstrated that her discharge was on account of her rival candidacy and not for her political
beliefs or affiliations. Indeed, it was Murphy who testified that Cockrell not only told her to call the
nominating committee and back out of the race, but also told her that she could keep her job if she
dropped her candidacy. Cockrell conceded that they had candidly discussed the fact that only one
of them would probably still be employed in the PVA office once the election was over.
Notwithstanding evidence that the race was contentious and that Cockrell took umbrage at Murphy’s
campaign literature impugning her experience and character, it is plain that Murphy’s rival
candidacy was the motivation for the discharge. This case, therefore, cannot be distinguished from
Carver, in which this court held that the plaintiff, a deputy court clerk and an at-will employee, had
not established a protected First Amendment right to run against the defendant—the incumbent clerk
and her supervisor—and still retain her job. Carver v. Dennis, 

(6th Cir. 1997). Nor
is this conclusion undermined by the fact that Murphy’s termination came only after the election
results were known. See Myers v. Dean, 216 Fed. App’x 552 (6th Cir. 2007).
         Finally, I am not persuaded by Murphy’s argument that Carver can be distinguished because
she was discharged not only for the fact of her candidacy but also for the manner in which she
campaigned. As the district court aptly observed, this turns “on the question of whether attacking
your opponent’s political experience is akin to an expression of political beliefs.” As I see it, saying
“I am a better or more experienced candidate than my boss” is nothing more than the assertion of
a rival candidacy. I believe that the only reasonable conclusion to be drawn in this case is that
Murphy was discharged for her rival candidacy and not on account of her political beliefs or
affiliations.