*1 prima Beckler, pretext, coupled was a with the assuming interview suc- show- facie process purpose reselection ing, only is minimum necessary the bare to cess. reproduce original to selec- part was plaintiff. Given, judgment for the possible; it was not extent meant tion to the however, that the district court made inde- possible plaintiff every benefit. give the pendent findings that Kline was not the vic- way playing field for only level the findings tim of discrimination —which be, as the district and Beckler would Kline majority challenges complete- nowhere is—it found, to conduct no interview either court ly inappropriate to enter judgment candidate, rather than to interview Kline Kline. only. majority As the acknowledges, itself possible if it would have been But even point of the undertaking Title VII is to deter- Kline, that fair does conduct a interview work; mine whether discrimination was at failure to so TVA’s do not mean simply we do not sit as supermanager, TVA’s pretext. the district court em- indicates scrupu- to ensure its hiring decisions are proof phasized, “there no interviews lously every particular. fair in Kline' is not conducted with a reselection ever been had possible management entitled the best de- TVA”; are not process at interviews even TVA; cision he entitled to one pro- of an initial selection required improper Chappell v. free motive. See is, moreover, no indication There cess. Corp., 803 F.2d GTE Prods. requested an in- that Kline ever the record Cir.1986). finding that The district court’s terview, specify what infor- nor does ever presented Kline discrimination interview have revealed that mation an would clearly not Kline erroneous therefore in the volumi- elsewhere contained judgment is not favor. entitled in.his TVA. All of material considered nous strongly suggest facts reasonable- these not to the TVA’s interview
ness of decision significantly, most the candidates. And explicitly that the failure court found solely on the was based to conduct interviews KREUZER, Plaintiff-Appellant, A. Kline, June fair rather to be than on desire discriminatory animus. The fails to post hoc finding, and its inven- confront E. Virgil BROWN, Defendant-Appellee. process simply potential tion of a interview No. 96-3107. nothing to to the conclusion lead one does finding clearly erroneous. Appeals, United. States Court Sixth Circuit. III. Feb. Argued Although one final I make observation. acknowledges majority repeatedly Decided Oct. Mary’s that “[t]he
Saint instructs Rehearing Suggestion Rehearing that established Kline’s facie En Dec. Banc Denied 1997.* rejection the reasons offered along with defendant, been by the would have sufficient infer discrimina- the district court to to allow 350) TVA,” (maj. op. part of tion on the added),
(emphasis it nonetheless réasons as Mary’s rule of Saint these of discrimination. facts mandate inference clearly if the district court were erro- Even finding pretext been neous shown, that does not mean that finding A be entered for Kline.
should * rehearing stated dissent. Judge for the rea- sons in her Moore *2 defendant, Virgil in favor of
Brown, § 42 U.S.C. on her claim under discharged from her the Ohio and in violation of her rights the First and Fourteenth under *3 For the reasons set forth be- Amendments. low, we affirm.
I. employed by Lottery the Ohio
Plaintiff was (“Commission”) as a (“LEAR”) Executive Account February from 1987 to when she June time, During that LEARs was terminated. groups: into two “Partners-in- were divided (“PIPs”), with Prosperity” who worked indi- outlets, Rep- vidual retail Chain Account and resentatives, chain who serviced stores. PIP entire she Plaintiff for the time was Prior to her worked at the Commission. Commission, she with the representative served as a Democratic state Assembly, until in the Ohio General primary Democratic of 1986. defeated in the January newly In elected appointed Geprge Voinovich defen- Governor as director of dant Brown the executive Clark, Demp- Squire, & D. Lewis Sanders Shortly appointment, after his Commission. (argued and sey, Kevin L. Shoemaker the Commission Brown determined that Shoemaker, Columbus, briefed), Berry & reorganize in increase its needed to order to OH, Plaintiff-Appellant. place greater that it needed efficiency, and larger emphasis upon working with chain (briefed), H. Lit- Zeigler Marion John W. out- than with individual retail briefed), stores rather Par- tle, (argued and Stuart G. Jr. end, PIP Columbus, eliminated the lets. To this Brown (briefed), Zeiger Carpenter, & sell Account program, three new Chain added OH, Defendant-Appellee. shifted the fo- Representative positions, and MOORE, Circuit Before: NORRIS Representatives to Account cus all Chain RUSSELL, Judge.** District Judges; overseeing prob- acquiring new business and In addi- large lems business accounts. with NORRIS, J., opinion of the delivered the tion, position, Regional created new Brown , RUSSELL, D.J., court, joined. in which accounts, Coordinator, large to service 365-371), MOORE, (pp. J. delivered small, regions. pre-established dissenting opinion. separate discharged plaintiff In June Brown NORRIS, Judge. E. Circuit ALAN reorganization.1 also Brown incorporated into Commis Plaintiff, all. LEARs appeals A. June newly To fill available granting order sales division. court’s sion’s the district ** Russell, LEARs were Demo- since all B. United States of little The Honorable Thomas relevancy reorganization. Judge prior the Western District Ken- District tucky, sitting crats to the by designation. discharged that all em- Plaintiff of the asserts is, however, ployees were Democrats. This her, employees merely explanation, telling “you Brown transferred four know Commission, addition, go.”
from other things how these she intro- employees. Vittardi, After the reor- hired seven Jerry duced the a for- affidavits ganization, composed Division PIP, Sales Cynthia Easter, mer former Representatives, Chain of five Account Representative, Chain Account as well as whom three were Democrats and two were affidavits of former other Coordinators, Regional Republicans; five Commission. Vittardi testified Republi- of whom confirmed him that him told he did want to fire but can; employees, and two “other” both of that “his hands tied” and “there whom were Democrats. out are commitments there.” Easter testi- her, that when Brown fied fired told her termination, plaintiff brought After problems there were no with challenge administrative to her dismissal be- performance, but that he make “had to room fore Ohio State Personnel Board Re- *4 people.” for other Easter further testified view. The dismissed her Board hold- appeal, that soon after Brown arrived the Com- positions ing that LEAR at the Commission mission, he an assembly told of civil purposes, are “unclassified” for service then’, “some people jobs would lose plaintiff and that was therefore terminable at through politics.” will. 26, 1992, August plaintiff On this ac- filed granted- The district court defendant’s mo- court, against tion Brown in the district merits, for summary judgment tion on claiming her First Fourteenth and qualified it did of not address the issue rights violated, and that so, immunity. doing In it concluded that recovery U.S.C, she was entitled to under 42 reorganized Brown the Commission because § discharged 1983. Plaintiff claimed she was legitimate reasons, of business and that the longstand- of because pretext was not a for termi- ing Party. affiliation with the Democratic nating plaintiff political because of her affilia- responded by filing Brown for sum- motion plaintiff tion. The court also concluded upon mary judgment based the merits of failed to any newly offer evidence that the
plaintiffs upon qualified claim immunity. positions copy” created were a “carbon claim, respect plaintiffs With to the merits of plaintiffs position. PIP Plaintiff does not plaintiff Brown contended that was terminat- challenge appeal. these conclusions on positions ed because the PIP were eliminated reorganization, and that she was not II. positions one of hired for the other because he believed others were better grant We review court’s district positions. those See, summary judgment e.g., de novo. In opposition to Brown’s motion for sum- Co., v. Broadcasting Brooks American 999 mary judgment, plaintiff argued that there (6th 167, 174 Cir.1993). Summary F.2d judg genuine issue of material fact concern-' proper pleadings, depositions, ment “if the her,' terminating his motivation in interrogatories, answers to and admissions while her was eliminated as file, affidavits, together any, with the if the reorganization, she was entitled to one of genuine show that there is as to issue reorgani- that resulted from the material fact moving party however, At argument, plain- zation. oral entitled to a as a matter of law.” plaintiff tiffs counsel conceded that was not 56(e). inquiry Fed.R.Civ.P. Our grant into Regional to a position, entitled Coordinator summary judgment is to determine indicating that is that “whether presents sufficient given should have Rep- her a Chain Account disagreement require jury to a submission position, resentative and that he failed to do or whether it is so one-sided that one so political because of her prevail must as a matter of law.” Booker v. claim, Co., In plaintiff of this testified & Brown Williamson Tobacco 879 F.2d (6th by 1304, Cir.1989) (citation omitted). affidavit that Brown fired her with little 1310
363
Healthy City
Dist.
so,
justifiable
Mt.
School
Bd.
draw
doing
we must
In
274,
568,
non-moving party.
Doyle,
v.
50
Educ.
U.S.
in favor
inferences
(1977).
To
L.Ed.2d
re-
Indus. Co. v. Zenith Radio
Elec.
Matsushita
connection,
quired
causal
must show
Corp.,
U.S.
(1986).
1356-57,
political
In order to
that her
affiliation was a “substan-
L.Ed.2d 538
“motivating”
tial” or
factor
court’s
behind
ad-
reverse
employment
the evi-
action.
verse
Id.
judgment, we
conclude
jury,
showing may
This
presented,
accepted
is S.Ct. at 576.
made
dence
recovery.
permit plaintiffs
direct or circumstantial evidence. Conklin v.
sufficient
(6th Cir.1987)
Hunt,
Lovely,
Gregory v.
F.3d
Cir.
1994).
Rosaly
(citing
v. Ignacio, 593 F.2d
(1st Cir.1979)).
If
hér
meets
bur-
A.
den, the burden then shifts to the defendant-
decision would
Burns,
347, 96 S.Ct.
Elrod
been
same even without
(1976),
Finkel,
507, 100
445 U.S.
S.Ct.
plaintiff
Before
can establish
(1980).
also
L.Ed.2d 574
The Branti Court
violation,
she
show
.Amendment
scope
patronage,
of permissible
clarified the
subjected
legally
to a
that she was
actionable
question is
holding that “the
whether the
It
to us
un
personnel decision.
seems
authority
can
hiring
demonstrate
ease,
present
in this
der the circumstances
requirement
appropriate
an
for
affiliation is
public employee loses her
be
where a
of the
office
the effective
position
reorga
in a
cause her
is eliminated
Id. at
at 1295.
involved.”
S.Ct.
nization,
there
three
under
are
scenarios
Party
Finally,
in Rutan v.
employee
which the
could make out
Illinois,
62, 110
patronage
of Unconstitutional
dismissal.
(1990),
reaffirmed the
L.Ed.2d
the Court
First,
if
her
would be actionable
dismissal
Branti,
rationale of both Elrod and
extend
for
policy
business or
reasons
stated
beyond'patronage
their reach
dismissals
its
reorganization
subterfuge for
actual
are a
employment practices
to such other common
motivation,
politically
to eliminate
the desire
transfers,
hirings,
promotions, and recalls
as
scenario,
employees.
unfriendly
Under this
layoffs.
from
Id.
In order to
facie
redefined
effectively
those
patronage
identical to
eliminated
case of
dismissal
violation
strong
improper
motive.
rights, plaintiff must show be
indication
First Amendment
Second;
ques
employee
could demonstrate
employment
action
political
improperly terminated
political
of her
she was
tion was the result
similarly
employees
provision, pro-
reasons
situated
who Amendment is not
tenure
political party
with the
tecting public employees
were affiliated
other
from actual or con-
positions, that
were shifted to other
she
Rutan,
discharge.”
structive
497 U.S. at
for one
those
and that
protects
2737-38. While the law
give
one of
decision not to
those
public employees, except in limited circum-
positions
politically
Finally,
motivated.
stances,
losing
their
be-
employee
state a claim if at some
could
political considerations,
cause of
the law does
during
point
before or
she
an
employ-
create
entitlement to life-time
applied
position,
for a different
and she was
Accordingly,
ment.
the First Amendment
considered because
affilia-
government
require
does not
automati-
tion. As the Supreme
pointed
Court
out in
cally
jobs
consider
whose
Rutan,
employee
failure to
an
consider
po-
eliminated
business reasons for other
because of her
Thus,
sitions.
under the circumstances of
equally
patronage
as
actionable
dismiss-
to consider
failure
al.
However, personnel able none of decision. the scenarios is supported by the facts in record before Accordingly, we conclude Beyond merely us. characterizing the reor granting summary court did not err judg- one, ganization as “purported” ment in Brown’s favor. challenge does not the district court’s conclu reorganize sion that Brown’s decision to commission, plaintiffs and thus to eliminate III. position,
PIP
legitimate
upon
based
policy
argues
business
reasons. Nor does
Brown also
still
she
he is
entitled
challenge
because,
the court’s
conclusion
there is
under the
any positions
to which
Court’s decisions in Elrod and
lays
essentially
claim are
Branti,
the same as the
appropriate
affiliation is an
*6
Furthermore,
positions.
eliminated
while
requirement
for the effective
of
the
following
record does show that
the reor
position.
alternative,
a LEAR
In the
he
ganization,
given
two former
PIPs
plaintiff
if he
contends
even
dismissed
in
Chain Account
positions, and
violation of her
rights,
he
plaintiff may
qualified
have been
for one
qualified
is entitled to
immunity because he
of those
both of the transferred
clearly
did not “violate
statutory
established
Thus,
employees were Democrats.
it is un
or
rights
constitutional
of
which reasonable
likely
plaintiff
was not transferred be
person would have known.” Harlow v. Fitz-
cause she is a
finally,
Democrat. And
there
800, 818,
gerald,
2727,
457 U.S.
102 S.Ct.
is no
plaintiff
the record that
(1982).
2738,
Rather, plaintiffs of essence argument is that Brown have should consid automatically ered her for one of Chain IV. Representative positions
Account once her position pointed was eliminated. by judgment As out of district court is af- Court, Supreme however, “[t]he First firmed. employee’s pects While courts have excused an employer's] employment [the fail- of internal apply ure to for a in other practices," contexts when plaintiff must also show that futile, gesture such a would have been "any application per- been futile and event, argument make does not this here. In Duck, 611, haps foolhardy.” v. 619 Harless F.2d contexts, previously in those we have held that in (6th Cir.1980). The evidence in the rec- order application to overcome lack of for a considerably meeting ord falls Short of this kind position, plaintiff present “overwhelming of elevated standard. pervasive evidence of in all discrimination as-
365
I. THE STANDARD
MOORE,
Judge, dissenting.
Circuit
correctly
lays out thé stan
politi
right
of
to exercise
The freedom
governing claims of discrimination
been,
dard
continue
and should
association has
cal
association,
proper
oh
but
political
based
judiciary.
be,
by
jealously guarded
application of
standard
this case com
Party
v.
generally Rutan
pels
judgment.
denial of
“[T]o
2729,
Illinois,
62,
111
110 S.Ct.
497 U.S.
a, prima
patronage
facie case of
establish
Finkel,
(1990); Branti v.
445
L.Ed.2d 52
in violation
her First
dismissal
Amend
1287,
507,
II. APPLICATION OF
Lovely
A.
v.
Conklin
THE STANDARD
Applying
'to
(6th
this standard
the evidence in
Lovely,
In Conklin v.
er, although she traveled State of appears that it through job visiting the Commission agents her the sales received Ohio order connections, performed the survey marketing her their efforts sug- and offer perfor- favorable and received job quite well gestions improving marketing to increase (DeMio at 283 evaluations. See J.A. mance lottery ticket sales. J.A. at See 354-56 (Performance Dep.); 324-25 Re- J.A. at (Kreuzer Dep.). When Brown took over views). came the new administration When Commission, he to shift the wanted focus of control into and Brown took office program large LEAR chain stores. Commission, general he held a meet- (Brown Dep.). 241-44 See J.A. at To do that some of the ing which he announced this, existing Brown fired the PIPs or shifted jobs through gotten their employees who had Representative them into the Chain Account way. politics lose them the same See positions. job See id. There abolish- (Easter Aff.), (Hughes Supp. J.A. at 26 to the all ment extent of the LEAR Conklin, Aff.). termi- As in at Kreuzer’s employees that were dismissed re- were meeting, gave no reason for Brown nation placed by employees new LEAR at the same say “you know than to how firing other state classification level. J.A. at See (Kreuzer Dep.). things go.” at 366 these J.A. (Brown Dep.) new LEARs Some these suggesting There is also evidence that Brown put into were Chain Account specifically out of the office. wanted Kreuzer posi- and others were into hired (Brown J.A, 230-31, Dep.); 470-71 tion Brown created under the LEAR Divi- (Musarro Dep.) (stating that indicated Brown Regional sion called Coordinators who were “separate” Kreuzer without he wanted responsible servicing agencies all within Indeed, mentioning reorganization). two (Musarro region. See J.A. at 80-81 defined office prior firing weeks Aff.). a letter governor’s office faxed indicating get that he wanted to rid Brown .part reorganization, posi LEAR Kreuzer because' he believed by transferring not filled tions were personal loyalty, high degree “requires existing employees filled confidence, trust, reliance, fidelity, (Brown employees. See J.A. at my on behalf.” is authorized to act and/or Dep.). significant This is to the extent Attach.). Aff., (Landy A at 43 Supp. J.A. deposition point át indicat jury could infer from this evi- reasonable that Kreuzer was removed rather than ed that Brown was motivated termi- dence all transferred because did need “[w]e affilia- Kreuzer because nate (Brown people in that unit.” J.A. at 221 tion. , Additionally Dep.). three new firing hired at or near the time of Kreuzer’s Reorganization & the
C. The important Republi connections to Republican New Hires party. Nancy Suhadolnik was the wife can alleged reorganization, Prior senator, with of a state recom Representatives Lottery Executive Account Hughes, then mendations from Robert (“LEAR”) Division, which handled sales “Cuyahoga County Republi Chairman tickets, up lottery of “Partners was made [sic],” prominent Organization and other can (“PIPs”) Prosperity” “Chain Account (Brown Republicans. Dep.); See J.A. at (Mu- Representatives.” See 3A. 500-01 (Suhadolnik Dep.). Yvonne Petri J.A. responsi- Dep.). primarily sarro PIPs were Republican mayor of North Olm gac was acting as ble for liaisons between Com- sted, Ohio, worked Governor Voinovich’s agents. smaller sales See J.A. at mission and Republicans prominent campaign, listed (Brown Dep.); J.A. at *9 (Petri (DeMio J.A. at 597-99 (Kreuzer as references. See Dep.); Dep.). at 258 J.A. Finally, gac Dep.). Richard Perk was Representatives managed Account The Chain mayor Republican of a of Cleve son former marketing, problems recruiting, and sales land, Ohio, who had recommendations large and franchise stores. See chain (Kreuzer PIP, County Re- Dep.). Cuyahoga As a chairman J.A. at 416-19 368 538-39, Response
publican party. See J.A. at 543-45 D. Brown’s (Perk Dep.). Since the evidence at least above-described college degree Perk and relevant had to creates material issue as whether marketing, in experience see J.A. at 530-36 motivating substantial or factor in (Perk Dep.), but there is no indication that discharge politi decision to Kreuzer was her Petrigac any specific qual- or Suhadolnik had affiliation, cal the burden shifts then positions. Petrigac ifications for the LEAR demonstrate that he have temporary had service worked regardless politi Kreuzer of her terminated kept family accounts for a addi- business reorga cal affiliation. Brown that the claims political jobs. J.A. various See tion nization, combined with the that he (Petrigac Dep.). Suhadolnik had thought do others would better the new an elementary been school teacher for ten positions, why he terminated Kreuzer. (Suhadolnik years. Dep.). J.A. at 639 See (Brown 231 Dep.). J.A. Ad suggest Petrigac This is not that to. mittedly, may prove it be more unqualified merely difficult to Suhadolnik were but party motivating demonstrate that a reasonable fact finder affiliation was a factor part might find that of Brown’s motivation discharge place for if the action takes as firing for Kreuzer was to make room at the reduetion-in-force, reorganization of a but for sup- that does not end inquiry into the em porters. ployer’s Libbey- motives. See McMahon Co., (6th Owens-Ford 870 F.2d A reasonable inference 1077 was Cir.1989); Hawley Indus., Inc., fired for is all the reasons. more v. Dresser possible, given testimony (6th Cir.1992). of Kreuzer’s co- F.2d Logic and workers. One stated that when Brown fired suggest may case law an employer him, Brown claimed that he did not want to use the legitimate occasion of a reorganiza him, fire but “his hands were tied” and employ tion to avoid constitutional limits Supp. “there are commitments out there.” ment decisions. Even (Vittardi Aff.). J.A. at 28 Another testified a legitimate was motive for discharging that Brown told him he being fired not Kreuzer, a reasonable fact finder could still because of his but that the deci- illegitimate conclude that other factors also being higher “was sion made at a level and Mason, motivated the decision. See 115 F.3d [Brown] control over the deci- at 1452.4 theAs Tenth Circuit indicated Aff.). (Hughes Supp. sion." J.A. at 29 Yet upholding jury finding an unconsti verdict Brown, another testified he was told affiliation, tutional dismissal based on eventually fired, some time before he was required “not “[t]hey they your told me want political patronage sole cause behind (DeJohn Aff.). yet.” Supp. J.A. Rather, discharge. his plaintiff] once [a co-worker, allegedly Brown also asked prove[s] political patronage a motivating shortly employee, he after had fired another dismissal, factor behind his the burden of system this is how “[d]oesn’t know persuasion shift[s] to the defendants (DeJohn Aff.). Supp. works?” J.A.- prove, defense, as an affirmative Based on judg- the standard for discharge regardless would have occurred ment, I presented conclude that Kreuzer has any discriminatory political motivation.” sufficient evidence to show that rea- Mason, 115 (citing F.3d at 1452 Gardetto v. played sons such a or motivating substantial Mason, (10th Cir.1996)); her, F.3d role the decision to terminate that the requirements see Mt. Healthy, facie also ease were U.S. established. S.Ct. at 576. analogous age-discrimination position,,or, In an Haw- where some are shift- Indus., Inc., ley v. Dresser ed to other that he was Cir.1992), "[w]here, here, position, held given posi- court another tion, he was not a new force, there is a place reduction that the decision not to in a him age eliminating either show that was a by plaintiff's age." factor was motivated *10 framework, majority’s from the éven under the the jury could conclude
A reasonable
genuine
prior
firing
facts of this case create a
issue
on
record
the
regarding a
Kreuzer,
requested
summary
Kreuzer’s
material fact such that
Brown never
(Brown
file,
inappropriate.
is
at 225
see J.A.
supervisor
her
re-
Dep.), never contacted
majority
the
argues
that Kreuzer’s
any of
handle
garding whether she could
dismissal would be actionable
she could
(Brown Dep.);
at 225
positions,
J.A.
new
see
pol-
that the “stated
or
demonstrate
business
(DeMio Dep.), and
not even
did
J.A. at 304
icy
for the
are a
reorganization
reasons
sub-
supervisor
speak
all to'Kreuzer’s direct
motivation,
terfuge for its actual
the desire to
job
J.A. at
regarding
performance.
her
politically unfriendly employees.”
eliminate
(DeMio
pressed
Dep.). When
op.
Majority
at 363. Kreuzer could meet her
deposition
explain why
he found
during his
positions
by showing that the new
burden
are
qualifications lacking, Brown could
Kreuzer’s
effectively identical to those eliminated. See
put
I
only respond
my
“I’m not
can
sure
above,
id.
indicated in
dissent
this
just my judgment.” J.A. at
finger on it.
It’s
legitimate reorgani-
mere
is
there
a
(Brown
coupled
Dep.). When
with
inquiry.
zation does not end the
Kreuzer
that at least two of
prevail if
could still
she demonstrates that
objectively no
replacements
more and
given
opportunity
of
was
trans-
qualified
genu-
perhaps less
than
fer, promotion,
rehiring,
or
because of her
credibility
of
as to the
of
ine issue
fact exists
party affiliation.
I believe she has met her
proffered
for Kreuzer’s dis-
reasons
stage
summary judgment
at the
burden
summary judgment,
purposes
missal. For
presenting such evidence.
his
Brown has
burden of demon-
not met
Kreuz-
strating that he would have dismissed
majority ap
The second scenario that the
her
regardless
er
proves
is
Kreuzer to demonstrate that
Therefore I would reverse
district court’s
“similarly
situated
who were affili
judgment.
political party
ated with
other
were shift
positions,
ed to other
that she was
THE
III.
MAJORITY’S SOLUTION
for one of those
and that the deci
give
majority
clearly
positions
The
sion not to
her one of those
never
states whether
Majority
politically
op.
on
its decision is based
a determination that
motivated.”6
five
failed
facie case 364. Two of the
former PIPs were re
to establish
majority,
put
given
positions.
LEAR
inappropriately,
or
tained and
This
whether
possible
disprove
it was
least
the burden on Kreuzer to
that the
indicates
reorganization
pretext
serving
dismiss
those who were
PIP
Instead,
ways
posi
new LEAR
majority limits
could
al.
be transferred
perform
adequately.
prevail
in a
case
tions and
them
can
claims,
majority
scenarios.5
each of these
what can
be viewed
three
While
evidence,
inappropriate
may
weighing
on
be sufficient to
as an
scenarios
its own
two
dis
the fact that
these
former PIPs
claim
unconstitutional
“unlikely
charge,
they
possible
not exhaust
were Democrats makes it
do
proving
Additionally,
[Kreuzer]
such a case.
not transferred because she is
means of
question, why
starting with
was Kreuzer
"that
the cir-
indicates
under
present
fired.
where a
cumstances
in this
employee
loses
is
reorganization,
there are three
eliminated
noting,
It
also worth
for the sake of clarifica-
employee
scenarios under which the
could
tion,
precedent
that there is clear
circuit
patronage
make out
claim of unconstitutional
may
holding
op.
(emphasis
Majority
add-
dismissal.”
at 363
employee
being
when the
discriminated
made
ed). Perhaps
simply
this is
a mistake in word-
against based
affiliation with a
or her
ing by
perhaps
passage
majority,
particular political
need
faction. A
analysis.
majority’s
in the
reflects
fatal flaw
the "other
that someone from
assumption
replaced
parly”
McCloud v.
It starts with the
that Kreuzer was
him or her. See
1996).
Testa,
reorganization,
Cir.
fired because
rather
than
*11
(Brown
Majority op.
(emphasis
a
Dep.). Although
Democrat.”
at 364
added).
reasons,
true,
majority
tiny pieces
justify
The
could
attacks
Kreuzer’s dis-
missal, they also indicate that she
picture
in order to
the full
was indeed
record
obscure
for one of
considered
the other
puzzle.
While it is true that the two
.transfer,
through
promotion,
either
or rehire.
Democrats,
transferred PIPs were
the three
The majority acknowledges that Brown him-
Republicans.
new
might
hires were
self
contended
Kreuzer “was not hired
only
needed to
room
make
for three
for
positions
one of the other
because he
Republican supporters.
aFor
similar exam-
believed others
better
for
.were
ple, if an employer
having many
is tired of
so
positions,” Majority op.
(empha-
those
at 362
plant, may
in
get
women
his
wish to
rid of
added),
sis
yet still maintains that “there is
some women and hire
men.
more
order
that-plaintiff
in
evidence
the record
ever
summary judgment,
to survive
a dismissed
applied
position
reorganized
for
clearly
employee
female
have to
bringing
before
this action.”
employer
demonstrate that
every
fired
Majority
op.
majority
364. The
surely
only
woman.'
present
She
would have to
suggesting
cannot be
in
this case .a
prima facie case that demonstrates that the
application
formal
would make difference in
personnel
against
action taken
its decision. When the evidence is
in
viewed
Likewise,
gender.
was based on
as Kreuzer
light
most favorable to
she was
contends,
placed
she
fired
in
and
transfer, promotion,
considered
either a
for
positions
party
new
of her
rehire,
rejected.
The
she.
Although
affiliation.
Republi-
evidence that
issue then is whether the decision was moti-
cans were transferred and she was not would
part
party
vated in
affiliation.
ease,
help her
she
every
need not
Alternatively, Kreuzer submits
Democrat
fired.
The
three
could
a claim
it
that was futile
by Republicans
sup-
filled
reapply
position.
her to
for a
ports
In other
that Brown failed to trans-
inference
fer,
contexts the
Court has found
promote,
that a
or rehire her because of her
plaintiff
gesture
need not make
the futile
affiliation.
job
applying
employer
when the
has
Finally,
majority
asserts that Kreuzer made it
clear
it intends to refuse such an
could
a claim if
point
state
“at
some
application for bad
reasons.
Interna-
during
before or
the reorganization
ap-
...
States,
tional Bhd.
Teamsters v. United
plied
position,
for a different
and she was not
324, 365-66,
1869-70,
considered because of her
affilia-
(1977) (“When
person’s
L.Ed.2d 396
Majority op.
tion.”
majority
The
desire for a
is not translated into a
goes
then
toon
state that “there is no evi-
formal application solely because of his un-
dence
the record that
applied
ever
willingness
engage
gesture
a futile
he is
position
for a
reorganized
Commission as much a
victim discrimination as is he
bringing
before
this
Majority op.
action.”
goes
who
through the motions of submitting
majority
give
fails to
sufficient
an application.”).
dismisses
weight
responses
to two distinct
argu-
argument
footnote,
citing
Harless v.
First,
ment.
a reasonable inference based on Duck,
(6th Cir.1980),
was motivated Viewing light the entire record plaintiff, I conclude
most favorable to supports plaintiffs claim the evidence OTHER ISSUES IV. n discharge was motivated that her has political activity and that the defendant is, claims that he Brown also entitled been not demonstrated immunity. qualified the dis- Since neither regardless of her fired judge trict nor the has decided this is, therefore, not entitled to The defendant issue, too, it. I refrain on commenting key on I issue. I believe we should remand the district this case the district court would remand immuni- court decide issue proceedings further consistent with this ty. opinion. he is Finally, Brown claims that entitled grounds po
summary judgment on require appropriate litical affiliation is an jobs ment for effective question. exception to the Elrod- rule, prohibiting per Branti-Rutan employers government sonnel decisions affiliation, against individuals based