Case Information
*1 Before: SUHRHEINRICH, CLAY, and SUTTON, Circuit Judges.
_________________
COUNSEL ARGUED: Nathan D. Rowell, WATSON, ROACH, BATSON, ROWELL & LAUDERBACK, Knoxville, Tennessee, Daniel H. Rader III, MOORE, RADER, CLIFT & FITZPATRICK, Cookeville, Tennessee, for Appellants. J. Timothy Bobo, RIDENOUR & RIDENOUR, Clinton, Tennessee, for Appellee. ON BRIEF: Nathan D. Rowell, WATSON, ROACH, BATSON, ROWELL & LAUDERBACK, Knoxville, Tennessee, Daniel H. Rader III, MOORE, RADER, CLIFT & FITZPATRICK, Cookeville, Tennessee, for Appellants. J. Timothy Bobo, RIDENOUR & RIDENOUR, Clinton, Tennessee, for Appellee.
_________________
OPINION
_________________
CLAY, Circuit Judge. Plaintiff Landon Lane is the former Recreation Director of the city of LaFollette, Tennessee (the “City”). In the November, 2004 mayoral election, Plaintiff supported Defendant Cliff Jennings’ opponent, Lucy Lobertini. Defendant Jennings won the election. After the election, Defendants Jennings, Robert Fannon and Hansford Hatmaker, all members of City Council, voted to terminate Plaintiff. Plaintiff sued Defendants in their individual and official capacities pursuant to 42 U.S.C. § 1983, alleging, inter alia , that they violated several of his rights secured by the United States Constitution, primarily his First and Fourteenth Amendment right not to be terminated from government employment on account of his political beliefs. Defendants moved for summary judgment, arguing that they did not vote to terminate Plaintiff because of his political beliefs, and, even if they had, the nature of Plaintiff’s position was such that Plaintiff could legally be terminated for political reasons. Defendants also contended that their actions were protected by the doctrine of qualified immunity. The district court denied Defendants’ motion for summary judgment with respect to Plaintiff’s federal constitutional claims, and Defendants brought this interlocutory appeal challenging the district court’s refusal to credit their defense of qualified immunity. In addition, Defendants challenge the district court’s refusal to grant summary judgment in their favor on Plaintiff’s official-capacity claims. For the reasons that follow, we AFFIRM the district court’s denial of qualified immunity, and DISMISS Defendants’ challenge to Plaintiff’s official-capacity claims for want of jurisdiction.
BACKGROUND
This case concerns the position of Recreation Director of the City of LaFollette (the “Recreation Director”). What constitutes the job duties of the Recreation Director is a factual matter, the resolution of which is necessary to deciding the issues presented in this appeal; it is also a factual matter that Plaintiff and Defendants dispute. For the purpose of this appeal, information about the Recreation Director’s job duties comes from thrеe sources: the Charter of the City of LaFollette, Tennessee (the “City Charter”), the City of Lafollette Employee Handbook & Personnel Policies (the “Employee Handbook”), and the parties’ affidavits.
The structure of the City’s government is detailed in the City Charter. Article II of the City Charter vests broad “general powers” in the City Council, and identifies many specific responsibilities of the City Council. J.A. at 62. Article V addresses the responsibilities of the City Administrator, whose duties include “supervis[ing] and coordinat[ing] all administrative activities of the affairs of the city under the City Council.” J.A. at 67. Article V also enumerates nine specific duties of the City Administrator. Information relevant to the position of Recreation Director is located in Articlеs VI and VII of the City Charter. The City Charter does not, however, define the responsibilities of the Recreation Director. Article VI of the City Charter addresses “Other City Officers.” Article VI states in relevant part:
Section 1. Appointment of Officers. The City Council shall elect by majority vote the following officers: City Clerk, City Attorney, City Judge, Treasurer, Chief of Police, Public Works Director, Street and Sanitation Operations Manager, Codes Enforcement Officer, Recreation Director, Animal Control Officer, and Fire Chief. Such officers shall serve at the pleasure of the City Council.
All Officers shall be elected with due regard to their qualifications and fitness and for the good of the public service, and without reference to race, age, color, creed, sex, or political party affiliation. It shall be unlawful for any candidate for office or any candidate for appointed office to give or promise any person, either directly or indirectly, any office, position, employment benefit, or anything of value for the purpose of influencing or obtaining the political support, aid, or vote of any person.
J.A. at 68.
Article VII addresses “Administration and Finance.” Article VII states in relevant part: Section 1. Administrative Organization. The City Council shall determine the powers and duties to be performed by each department, shall prescribe the powers and duties of all officers and employees, and may require an offiсer or employee to perform duties in any number of departments. The administrative organization, under the supervision of the City Administrator, shall be organized into the following departments: (1) Department of Finance; (2) Department of Public Safety; (3) Department of Public Works; and (4) Department of Recreation. The City Council shall have the power to change the departmental organization by ordinance upon recommendation from the City Administrator.
J.A. at 69.
Additionally, the parties support their positions by reference to the Employee Handbook. The Employee Handbook contains a policy statement informing the employee that “[e]mployment with the City of LaFollette is at will.” [1] J.A. at 34. The Employee Handbook also provides an overview of the government of the City:
The Mayor and City Council establish policy and enact ordinances and resolutions for the development of the entire community. As elected officials, the Mayor and City Council set the policies by which the City of LaFollette government functions. The City Administrator is the Chief Administrative Officer of the City of LaFollette and is responsible for handling the administrative affairs of the City government within the framework of the City Charter and policies adopted by the Mayor and City Council.
J.A. at 76.
The Employee Handbook also contains a section entitled “Miscellaneous Policies,” subsection A of which addresses “Political Activity.” Subsection A states in relevant part:
Nо person in the service of the City of LaFollette or seeking admission thereto, shall be appointed, reduced, removed, or in any way favored or discriminated against because of political opinions or affiliations. Nothing in this section is intended to prohibit any municipal government employee from privately expressing his/her political views or from casting his/her vote in all elections.
J.A. at 78.
Also included in the Employee Handbook is an organizational chart of the City. According to the chart, the City Council holds the highest position in the City. The City Administrator answers directly to the City Council. Beneath the City Administrator, and answering to the City Administrator, are the City Safety Coordinator, City Attorney, and City Judge, who are each on the same organizational level. The Recreation Director is on the same organizational level as nine other offices, which are located below the Safety Coordinator, City Attorney, and City Judge, but nevertheless answer directly to the City Administrator. These nine other offices are: Police Chief, Administrative Services, City Treasurer, City Clerk, Public Works, Library, Animal Control, Codes Enforcement, and Fire Chief.
In addition to the documents describing the City, the parties submitted affidavits addressing the job functions of the Recreation Director. While the parties give starkly different descriptions of the position, no party describes the actual duties of the Recreation Director with significant detail. Defendants do not uniquely address the responsibilities of the Recreation Director, but instead address the job functions that they contend are common to each director of the four departments enumerated in Article VII of the City Charter. According to Defendants, department directors, including the Recreation Director, “submit annual budgets[,] formulate policies[,] and set the goals[,] responsibilities and functions for their departments.” J.A. at 20. The department directors also “advise the City Council on policy and personnel matters, including employment decisions involving promotion, demotion, termination and hiring members of their department.” J.A. at 20. This includes determining “when subordinates have committed a policy infraction or [have] engaged in misconduct,” and cоnducting “periodic workload assessments to ensure [that] the departments are adequately staffed.” J.A. at 20. Moreover, the department directors, including the Recreation Director, “possess the authority to employ all discipline measures short of unpaid suspension and termination without the consent and approval of the City Council.” J.A. at 20-21. The department directors are “responsible for the operation of their Department,” and this involves “handl[ing] routine administrative tasks with respect to the operation of their Department and the management of the employees situated there under [sic].” J.A. at 21. Finally, Defendants allege that the “City Council and the Mayor rely upon the Heads of the Department [sic] to promote and effectuate the policy of the City Council, and said Department Heads assist and advise the City Council with respect to the formulation and implementation of said policy decisions and program development.” [2] J.A. at 21.
Plaintiff disputes this characterization. Without providing specific details, he asserts that the position of Recreation Director does not involve policymaking. He alleges that the Mayor and the City Council establish policy and enact ordinances, and that he did not make any policy or have discretion as to how to implement the policies set by the Mayor and the City Council. Plaintiff contends that he did not advise the City Council or assist the City Counсil in implementing the policies of the Recreation Department. Plaintiff concedes that he would recommend employees within his department for promotions and pay raises, but he states that the ultimate decision on employment matters rests with the City Council. Lastly, Plaintiff notes that the hiring of part-time employees is done by the City Administrator and the hiring of full-time employees is done by the City Council.
In contrast to the dispute over the duties of the Recreation Director, the events leading up to this litigation are comparatively straightforward. Plaintiff was hired as the Recreation Director on August 5, 2003. At the time that Plaintiff was hired, Lucy Lobertini was the mayor of the City. Lobertini ran for reelection against Defendant Cliff Jennings in the November, 2004 election. Plaintiff supported Lobertini during his personal time away from the office. In the runup to the election, Defendant Jennings allegedly threatened to remove Plaintiff unless Plaintiff ceased supporting Lobertini. Defendant Jennings won the election. Additionally, in the same election, Defendant Hatmaker was reelected as a city councilman; Defendant Fannon’s position as city councilman was not up for reelection in the 2004 election. Prior to Plaintiff’s termination, in a workshop before the City Council, Defendant Jennings allegedly stated that he was recommending that Plaintiff be terminated for political reasons. On January 4, 2005, Defendants voted to terminate Plaintiff’s employment. They hired Johnny Byrge аs Recreation Director, who allegedly had less experience and education than Plaintiff.
On March 10, 2005, Plaintiff filed a complaint in the Eastern District of Tennessee. Plaintiff’s complaint alleged five causes of action. The first cause of action alleged that Defendants, acting in their official capacities, violated 42 U.S.C. § 1983 by depriving Plaintiff of a property interest in his position as Recreation Director without due process of law, because they terminated him on account of his political opinions. Plaintiff’s second cause of action alleged that Defendants, acting in their official capacities, deprived Plaintiff of his right to equal protection under the law by terminating him on account of his political opinions, in violation of § 1983. Plaintiff’s fourth cause of action alleged that Defendants, acting in their individual and official capacities, violated Plaintiff’s right to freedom of speech and association by terminating him in retaliation for political activity, in violation of § 1983. Plaintiff’s third and fifth causes of action alleged violations of the Tennessee constitution. Plaintiff included the City as a defendant in each cause of action.
On February 8, 2006, Defendants, acting in both their individual and official capacities, filed
a motion for summary judgment. The City filed a motion for summary judgment on February 13,
2006. The district court issued an opinion and order granting the City’s and Defendants’ motions
in part and denying the City’s and Defendants’ motiоns in part on June 14, 2006.
Lane v. City of
LaFollette
, No. 3:05-CV-127,
The district court rejected Defendants’ argument that they could not be held liable in their official capacities, holding that the minutes of City Council meetings demonstrated that Defendants had the authority to establish official policy for the City. Id. at *7. The district court also rejected Defendants’ and the City’s claim that, because Plaintiff was an at-will employee, Plaintiff could be terminated for cause or no cause. Id. at *8. Although conceding that Plaintiff was an at-will employee, the district court concluded that Plaintiff could not be terminated for exercising his First Amendment rights. Id. However, the district court granted the City’s motion for summary judgment with respect to Plaintiff’s claims arising under the Tennessee constitution, holding that the Tennessee constitution did not provide a private cause оf action. Id.
Defendants filed a timely notice of appeal on June 14, 2006. The basis for Defendants’
interlocutory appeal was the district court’s denial of qualified immunity. The City also gave notice
of appeal, alleging that the issues associated with Plaintiff’s claims against the City were
inextricably intertwined with Plaintiff’s claims against the individual defendants.
See Tucker v. City
of Richmond
, 388 F.3d 216, 224 (6th Cir. 2004) (“The exercise of pendent jurisdiction, while
discretionary, is appropriate where the appealable and non-appealable issues are ‘inextricably
intertwined.’” (internal quotations removed) (quoting
Brennan v. Twp. of Northville
,
DISCUSSION
I. Claims Against Defendants in their Individual Capacity
Defendants brought this interlocutory appeal challenging the district court’s denial of their
defense of qualified immunity. The denial of a claim of qualified immunity is an аppealable “final
decision” for the purpose of 28 U.S.C. § 1291, which vests the courts of appeals with jurisdiction
over final decisions of the district courts, but only to the extent that the claim of qualified immunity
turns on an issue of law.
Mitchell v. Forsyth
,
“Under the doctrine of qualified immunity, ‘government officials performing discretionary
functions are shielded from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.’”
Heggen v. Lee
,
Plaintiff’s claims arise under 42 U.S.C. § 1983. In order to establish a violation of § 1983,
Plaintiff must show that Defendants deprived him of his rights secured by the Constitution while
acting under color of state law.
See Waters v. City of Morristown, Tenn.
,
Despite the costs of patronage dismissals, the Court in
Elrod
recognized that “party
affiliation may be an acceptable requirement for some types of government employment.”
Branti
,
The first step in analyzing a claim of patronage dismissal requires asking whether the party
asserting that he was wrongfully terminated has produced sufficient evidence for a jury to find that
he was discharged because of his political beliefs or affiliations.
Caudill
,
Defendants first argue that, as the Recreation Director, Plaintiff served “at the рleasure of
the City Council” and could be dismissed for “good cause, bad cause, or no cause at all.”
Defendants’ Br. at 32 (quoting
Shelby v. Delta Air Lines, Inc.
,
Plaintiff has produced sufficient facts to raise a genuine issue of fact as to whether his termination was politically motivated. Plaintiff alleges that Defendant Jennings threatened him in an attempt to convince Plaintiff to cease supporting Lobertini in the mayoral election. Plaintiff also contends that Defendant Jennings stated in a workshop before the City Council that his recommendation to terminate Plaintiff was political. The temporal proximity between Defendant Jennings’ assumption of power and Plaintiff’s termination also bolsters Plaintiff’s allegations. Defendant Jennings became the mayor on December 1, 2004, and Plaintiff was terminated on January 4, 2005. Plaintiff has created a genuine issue of fact as to Defendants’ motives for terminating him; it is therefore immaterial that Plaintiff was an at-will employee.
For the first time at oral argument, Defendants Fannon and Hatmaker argued that, even if the
record contained evidence that Defendant Jennings terminated Plaintiff for political reasons,
summary judgment should be granted in favor of Defendants Fannon and Hatmaker because Plaintiff
has not produced evidence that their decision to terminate Plaintiff arose from a motive to retaliate
against him for his political activity. As an initial matter, we note that Defendants Fannon and
Hatmaker have waived this argument by not including it in their brief.
See Dillery v. City of
Sandusky
,
In any event, Plaintiff has produced sufficient evidence to survive summary judgment. Plaintiff’s allegation that Defendant Jennings “stated in a workshop before the city council that the recommendation to terminate [Plaintiff] was political” implies that Defendants Fannon and Hatmaker, whose votes were necessary in order to terminate Plaintiff, were aware of Defendant Jennings’ opinion that Plaintiff should be terminated for his political beliefs. J.A. at 46. Plaintiff also alleges that Defendants Fannon and Hatmaker “voted to terminate [Plaintiff] from [his] position as [Recreation Director] due to [Plaintiff’s] political beliefs and association.” J.A. at 46. Moreover, Defendant Hatmaker states that “[i]t has been the custom, practice and policy of the City Council of LaFollette to replace and/or renew all Department Heads after each City election;” J.A. at 24, Defendant Fannon contends that “[w]hen the new administration began . . . new Department Heads or ‘cabinet level’ individuals were selected who would best serve the City Council in promoting, coordinating, [and] assisting to formulate and implement the policies for the City government.” J.A. at 29. While certainly not conclusive, these statements each suggest that political considerations were the impetus for Plaintiff’s termination, a fact which, if true, strengthens Plaintiff’s claim that he was terminated on account of his political beliefs. These facts suffice to allow a reasonable jury to find that Defendants Hatmaker and Fannon voted to terminate Plaintiff in retaliation for protected First Amendment conduct.
The closer question in this appeal is whether Defendants have carried their burden of
demonstrating that Recreation Director is a position for which political party affiliation is an
appropriate consideration.
See Branti
,
In his affidavit, Plaintiff baldly asserts that his position “was not a policy making position;” he claims that he did not “make any policy or have discretion implementing the policies set by the mayor and city council,” “advise the council on policies,” or “assist the city council in formulating or have discretion in implementing the policies for the recreation department.” J.A. at 46. Standing alone, Plaintiff’s conclusory allegations, which provide no guidance as to what the Recreation Director actually does, might not carry significant weight. But Plaintiff’s allegations do not stand аlone; his position is reinforced by the City Charter and the Employee Handbook.
Under the doctrine announced in
Rice v. Ohio Department of Transportation
, “the
legislature’s decision as to whether a particular job should be classified as political or nonpolitical
is at least entitled . . . to ‘some deference.’”
The Employee Handbook also provides Plaintiff with some support for his contention that
Recreation Director is not a position whose holder may be discharged on account of his political
affiliations. While descriptions contained within an employee handbook typically will not
definitively enumerate a particular position’s responsibilities, the contents of the employee
handbook are relevant to that inquiry.
See Gonzalez v. Benavides
,
The Employee Handbook also bolsters Plaintiff’s claim by explicitly stating that “[n]o person
in the service of the City of LaFollette . . . shall be . . . removed . . . because of political opinions or
affiliations.” J.A. at 78. Thus, according tо the City’s own materials, political affiliation is not
permissible to consider when deciding whether to terminate the Recreation Director. True,
Defendants may be capable of redefining the position of Recreation Direction, provided that
Defendants act “with a good faith belief that such a transformation is necessary to implement [their]
policies.”
Baker v. Hadley
,
Defendants argue that Plaintiff (1) “managed his own department of the City,” (2) “made the departmental budget,” (3) “independently made significant employment decisions with respect to schedule, staff and discipline,” (4) worked with the City Council “in a close and confidential manner to formulate and implement policies for his department,” (5) “controlled the communications between his department and the City Council,” (6) “controlled communication between his department and the public,” and (7) “acted as the ‘alter ego’ of the [City] and the City Council with respect to the day to day management of the recreation department.” Defendants’ Br. at 24.
We need not decide whether, if true, these allegations would make the Recreation Director
removable for his political beliefs. We simply hold that, on this record, Defendants have not carried
their burden of demonstrating that political affiliation is an appropriate requirement for the
Recreation Director, because the duties of the Recreation Director remain too ill-defined for us to
adjudicate the issue as a matter of law.
[3]
See McCloud
,
II. Claims Against the City and Defendants in their Official Capacity
Plaintiff’s claims against Defendants in their official capacity are, in effect, claims against
the City.
Pusey v. City of Youngstown
,
Although not appealable as a “final decision” under 28 U.S.C. § 1291, an appellate court can
exercise pendent appellate jurisdiction on a § 1983 claim alleging municipal liability where the
municipality’s motion for summary judgment is “inextricably intertwined” with the qualified
immunity analysis properly before the Court.
Crockett v. Cumberland Coll.
,
Defendants’ arguments concerning municipal liability do not turn on whether the Court finds a
constitutional violation. Instead, Defendants contest the district court’s conclusion that their
decisions “may fairly be said to represent оfficial policy.”
[6]
See Monell
,
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s decision denying Defendants qualified immunity, and DISMISS Defendants’ appeal of their official-capacity claims for lack of jurisdiction.
[1] The policy statement elaborates: No provisions of these policies or any policies adopted by the City of LaFollette shall be construed as an employment agreement or legal contract. Employment with the City of LaFollette is at will (i.e. it may bе terminated at any time, with or without cause, either by the employee or by the City of LaFollette). The City of LaFollette, however, will not terminate any employee for reasons that violate State or Federal Law. J.A. at 34.
Notes
[2] The foregoing allegations are drawn from the affidavit of Defendant Jennings. Defendants Fannon and Hatmaker also submitted affidavits which contain similar descriptions of the duties of the Recreation Director.
[3]
Defendants also cannot prevail at this stage of the litigation by relying upon the deference afforded to
reasonable decisions under the doctrine of qualified immunity.
See Saucier
,
[4] To reiterate, the four departments outlined by the City Charter are finance, public safety, public works, and recreation. Without supporting facts in the record, we are not convinced of the dubious proposition that the Branti analysis of these four positions can be conducted en masse , as would be possible if we based our decision on Defendants’ description of the responsibilities of all the department heads. That is, the nature of the responsibilities of the different department directors might lead to different results under Branti , as interpreted by our precedents. The specific responsibilities of the Recreation Director are indispensable to the Branti analysis.
[5]
Although neither party raised the issue in their brief, we have an independent obligation to determine subject
matter jurisdiction.
Todd v. Weltman, Weinberg & Reis Co.
,
[6]
Defendants also argue that Plaintiff’s official capacity claim must fail because, under § 1983,
respondeat
superior
liability is not appropriate.
See Monell
,