Gary THOMPSON; Dalton Elliott; Gary Scott Manning; Alicia Hardy, Plaintiffs-Appellants v. Andy SHOCK, Individually and in his Official Capacity as Faulkner County Sheriff, Defendant-Appellee
No. 16-1643
United States Court of Appeals, Eighth Circuit.
Submitted: December 15, 2016. Filed: March 28, 2017.
852 F.3d 786
Jason E. Owens, RAINWATER & HOLT, Little Rock, AR, for Defendant-Appellee.
Before WOLLMAN and SMITH,1 Circuit Judges, and WRIGHT,2 District Judge.
SMITH, Circuit Judge.
I. Background
In 2012, while employed as a deputy in the Faulkner County Sheriff‘s Office, Andy Shock ran for Sheriff. One of Shock‘s coworkers in the office, Gary Thompson, did not support his candidacy. Thompson publicly endorsed Shock‘s main rival, Tommy Earnhart. While off-duty, Thompson campaigned for Earnhart by attending fundraisers, placing campaign signs in his yard, and wearing a campaign T-shirt. This campaigning did not interfere with Thompson‘s work activities, nor does the record reflect that Thompson made any public statements regarding the Sheriff‘s Office or other issues of public concern. After Shock discovered that Thompson supported his rival, the two met privately; Thompson assured Shock that he supported Earnhart as a personal friend and that he would be willing to work for Shock if he won the election. Thompson alleges that Shock told others that, as Sheriff, Shock would terminate current office employees that did not support his candidacy.
In November 2012, after Shock won the election, Thompson received a letter from newly elected Sheriff Shock notifying him of his “non-selection” for employment in January 2013. The letter outlined a grievance procedure providing Thompson a pre-deprivation hearing to contest his termi
Thompson and three other non-selected employees brought this suit in 2013, alleging violations of their rights under the Arkansas Political Freedom Act, the Arkansas Constitution, and the First Amendment of the United States Constitution. The district court granted summary judgment for Shock in his individual and official capacities. The district court analyzed the First Amendment claim under the formula set out in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The district court determined that Thompson‘s claimed First Amendment right was not clearly established under the Pickering-Connick test, granted qualified immunity to Sheriff Shock in his individual capacity, and dismissed without prejudice the related state-law claims. The district court also dismissed Thompson‘s claims against Shock in his official capacity because Thompson failed to prove that Sheriff Shock was deliberately indifferent to his constitutional rights. Thompson moved to alter or amend the judgment, but the district court denied the motion. The court did, however, revise its reasoning on the official-capacity claim. The court shifted the basis for its decision to Sheriff Shock‘s lack of final policymaking authority in employment matters. Thompson appeals.
II. Discussion
“We review grants of summary judgment de novo.” Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1207 (8th Cir. 2013). In a
A. Qualified Immunity
Qualified immunity shields a government official acting in his individual capacity from liability “unless his conduct violates ‘clearly established statutory or constitutional rights of which a reasonable person would have known.‘” New v. Denver, 787 F.3d 895, 899 (8th Cir. 2015) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Federal courts conduct a two-step inquiry into the application of qualified immunity: “(1) whether the facts alleged demonstrate a violation of the employee‘s constitutional right and (2) whether that right was clearly established at the time of the employee‘s firing.” Anzaldua v. Ne. Ambulance & Fire Prot. Dist., 793 F.3d 822, 832 (8th Cir. 2015). Qualified immunity protects the reasonable decisions of government actors except in cases of plain incompetence or knowing violation of the law. New, 787 F.3d at 900.
“[A] public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment.” Connick, 461 U.S. at 140. Nevertheless, “the State‘s interests as an employer in regulating the speech of its employees ‘differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.‘” Id. (quoting Pickering, 391 U.S. at 568). “A State may not condition public employment on an employee‘s exercise of his or her First Amendment rights.” O‘Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 717, 116 S.Ct. 2353, 135 L.Ed.2d 874 (1996). “Absent some reasonably appropriate requirement, government may not make public employment subject to the express condition of political beliefs or prescribed expression.” Id. “With a few exceptions, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate.” Heffernan v. City of Paterson, — U.S. —, 136 S.Ct. 1412, 1417, 194 L.Ed.2d 508 (2016).
The Supreme Court has developed two lines of cases that assess how to balance the First Amendment rights of government employees with the need of government employers to operate efficiently. See Hinshaw v. Smith, 436 F.3d 997, 1005-06 (8th Cir. 2006). For “overt expressive conduct,” federal courts apply the balancing test as found in the line of cases following Pickering and Connick. Id. at 1005. The typical Pickering-Connick case involves a government employee causing workplace disruption by speaking as a citizen on a matter of public concern, followed by government action adversely affecting the employee‘s job. See Anzaldua, 793 F.3d at 835-36 (analyzing under Pickering-Connick the termination of a Fire District employee after the employee emailed a local reporter about department conditions). This test includes various interrelated factors:
(1) the need for harmony in the workplace; (2) whether the government‘s responsibilities require a close working relationship; (3) the time, manner, and place of the speech; (4) the context in which the dispute arose; (5) the degree of public interest in the speech; and (6) whether the speech impeded the employee‘s ability to perform his or her duties.
Id. at 835. The Pickering-Connick test provides flexible weighing of the case-specific facts to balance the interests of the government with those of the employee.
For “pure patronage dismissals,” federal courts apply the narrow-justification test outlined in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). Hinshaw, 436 F.3d at 1005. The typical Elrod-Branti case involves the dismissal of an employee because of his or her political affiliations or support for certain candidates. See DePriest v. Milligan, 823 F.3d 1179, 1184 (8th Cir. 2016) (analyzing under Elrod-Branti the dismissal of the Chief Deputy after the election of the new Circuit Clerk). “[A] dismissal solely on account of an employee‘s political affiliation violates the First Amendment unless the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Id. (internal quotation marks omitted) (quoting Langley v. Hot Spring Cty., 393 F.3d 814, 817 (8th Cir. 2005)). Under Elrod-Branti, the court cabins its inquiry to the political-affiliation requirement itself, without the need to do the Pickering-Connick balancing analysis. O‘Hare Truck Serv., Inc., 518 U.S. at 719; Hinshaw, 436 F.3d at 1005 (“We have recognized that in cases like Elrod and Branti involving pure patronage dismissals, the individual and government interests are essentially fixed, so that there is no need to perform a Pickering balance.“).
In addition, many cases present an “intermixed” scenario in which a policymaking employee receives an adverse employment action based on “specific instances of the employee‘s speech or expression.” O‘Hare Truck Serv., Inc., 518 U.S. at 719. In Hinshaw, we applied the Pickering-Connick test to the case of an executive director of a state agency who alleged termination in violation of her First Amendment rights. 436 F.3d at 1006-07. Hinshaw, a policymaking employee, spoke out against the policies promulgated by the agency‘s Board of Trustees, and she was later disciplined. Id. at 1007. We stated that despite Hinshaw‘s First Amendment rights as a private citizen, her position as a policymaking employee “did not give her carte blanche to ignore her employer‘s directives and miscommunicate the Board‘s views.” Id. We determined that the factors in the Board‘s favor “outweigh[ed] whatever interest Hinshaw may have had in communicating her own personal views,” noting that the Board had a “legitimate expectation that its executive director [would] not undermine the Board‘s efforts.” Id. Thus, “where speech is intermixed with a political affiliation requirement, Pickering balancing is appropriate.” Id. at 1006.
To summarize, if an employee is discharged because of his or her expressive conduct, we apply the Pickering-Connick test. Id. at 1005. If an employee is discharged because of his or her political affiliation, we apply the Elrod-Branti test. Id. And when a political-affiliation employee gets discharged for his or her expressive conduct, we apply Pickering-Connick. Id. at 1006.
In granting qualified immunity to Sheriff Shock, the district court relied on Nord v. Walsh County, 757 F.3d 734 (8th Cir. 2014). Nord, a deputy sheriff in Walsh County who ran for sheriff, was terminated the day after he lost the election. Id. at 738. As a candidate, Nord made multiple public statements regarding the current sheriff‘s health, his wife, and his future political aspirations. Id. at 742. He sued the re-elected sheriff alleging that “he was fired in retaliation for the statements he made along the campaign trail.” Id. at 738. Because this presented an “intermixed case” including both public statements and political affiliation, we declined to apply Elrod-Branti and instead applied Pickering-Connick to determine whether the employer was justified in terminating Nord. Id. at 744. Thompson‘s case presents a different scenario. Unlike Nord, Thompson made no public statements regarding the Sheriff‘s Office; he simply supported an opposing candidate. “In such cases, the hiring authority must demonstrate that party affiliation is an appropriate and reasonable requirement for the effective performance of the public office involved.... This circuit has held that ‘[i]f discharge solely because of party affiliation is found, this will involve applying the narrow [Elrod-Branti] justification test....‘” Id. (first alteration in original) (quoting Hinshaw, 436 F.3d at 1005).
For Thompson‘s case, we choose to follow Heffernan v. City of Paterson—a recent Supreme Court decision published after the district court filed its judgment—to determine the best analytical framework.
B. Municipality Liability
Under
The “official policy” requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible....
[A] municipality may be liable under
§ 1983 for a single decision by its properly constituted legislative body—whether or not that body had taken similar action in the past or intended to do so in the future—because even a single decision by such a body unquestionably constitutes an act of official government policy.
Id. at 479-80, 106 S.Ct. 1292. To analyze whether a single decision of a government official constitutes an official policy, we look to state law to determine whether the government official possesses “final policymaking authority in the area in which the challenged conduct occurred.” Williams v. Butler, 863 F.2d 1398, 1401 (8th Cir. 1988). “[T]he County Sheriff may have discretion to hire and fire employees without also being the county official responsible for establishing county employment policy.” Pembaur, 475 U.S. at 483 n.12, 106 S.Ct. 1292. If a county‘s employment policy is set by a different municipal body, “only that body‘s decisions would provide a basis for county liability.” Id. To determine whether a government official serves as the final policymaker, we consult two sources: “(1) state and local positive law and (2) state and local ‘custom or usage’ having the force of law.” Atkinson, 709 F.3d at 1215 (quoting Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989)). Because Thompson complains only of a single action and not the customs of Faulkner
Thompson argues that as a matter of positive Arkansas law, Sheriff Shock possessed the final policymaking authority in matters of employment for the Sheriff‘s Office. He relies on the Arkansas Constitution and the Arkansas Code, which generically give the county judge power to hire employees “except those persons employed by other elected officials of the county.”
[A] quorum court may exercise any legislative authority with regard to employee policy and practices of a general nature, including, but not limited to, establishment of general vacation and sick leave policies, general office hour policies, general policies with reference to nepotism, or general policies to be applicable in the hiring of county employees. Legislation promulgated by a quorum court dealing with matters of employee policy and practices shall be applicable only to employees of the county and shall not apply to the elected county officers of the county. Legislation applying to employee policy practices shall be only of a general nature and shall be uniform in application to all employees of the county.
Thompson also asserts that Sheriff Shock‘s position as a final policymaker has been settled by the Arkansas Supreme Court. He relies on Crawford County v. Jones, which states: “[I]t is patently unreasonable to hold that a county official, such as the assessor, when acting in her capacity as an elected official, could not create liability for the county by her actions.” 365 Ark. 585, 597, 232 S.W.3d 433, 440 (2006). Crawford County, however, does not support Thompson‘s assertion. First, the Crawford County opinion addresses a state-law breach-of-contract action rather than a federal
Our review of Arkansas law and the policies promulgated by Faulkner County reveal that Sheriff Shock did not act as a final policymaker in the employment decisions of the Faulkner County Sheriff‘s Office because employment decisions made by Sheriff Shock were subject to review by the quorum court. We therefore affirm the district court‘s grant of summary judgment to Sheriff Shock in his official capacity.
III. Conclusion
We vacate the district court‘s grant of summary judgment in favor of Sheriff Shock in his individual capacity and remand the issue of qualified immunity to be addressed applying the analysis in the Elrod-Branti line of cases. We affirm the district court‘s grant of summary judgment in favor of Sheriff Shock in his official capacity.