*1 arises bargaining “under the collective
agreement^] inquiry ... relative to
both the LMRA claims and ERISA claims identical”). To the extent the retirees
hope breach-of-fiduciary- to raise distinct ERISA,
duty claims under that claim al assuredly
most would be futile. See Cur
tiss-Wright
Corp.
Schoonejongen, 514
73, 78,
(1995) (“[A] company does not act in a
fiduciary capacity deciding when to amend
or terminate a welfare plan.”) benefits Indus.,
(quoting Inc., Adams v. Avondale (6th Cir.1990)).
905 F.2d
IV. reasons,
For these we reverse the dis- grant
trict court’s summary judgment,
affirm its plaintiffs’ denial of the motion to complaint
amend their and remand for fur-
ther proceedings. MURPHY,
Brenda Plaintiff-Appellant, COCKRELL,
Linda Defendant-
Appellee.
No. 06-5897.
United States Appeals, Court of
Sixth Circuit. Sept. 14,
Submitted: 2007.
Decided and Filed: Oct. 2007.
Rehearing Denied Oct.
Fourteenth Amendment claims and her wrongful discharge claim. For the rea- follow, sons that we REVERSE the dis- trict court’s grant summary judgment First Amendment claim and *3 wrongful claim, discharge and AFFIRM summary judgment as to the Fourteenth Amendment claim.
I. previous The Montgomery County PVA officially May on retired 2004. At that time, both Murphy and Cockrell had worked on the PVA staff many years. for Cockrell was Deputy Chief PVA while Murphy was a deputy July On PVA. 2004, Cockrell was nominated as the Re- ON Pillersdorf, BRIEF: Ned B. Joseph publican Party PVA, candidate for Lane, Pillersdorf, R. Lane, DeRossett & subsequently, July 19, 2004, Governor Prestonsburg, Kentucky, Appellant. Ernie appointed Fletcher as her interim Grover A. Carrington, Farrah In- Williams PVA. thereafter, Shortly Murphy was gram, White Carrington, Peck Mt. Ster- nominated as the Party’s Democratic can- ling, Kentucky, Appellee.
didate for PVA. MARTIN, GUY, Before: CLAY, Upon appointment her by Governor Circuit Judges. PVA, Fletcher to interim Cockrell moved Murphy from the front to the office back MARTIN, J., opinion delivered the office, where she would not have court, the CLAY, J., joined. which contact. Cockrell also asked GUY, 455), (p. J. delivered a separate not any take calls at the PVA office related opinion concurring in part and dissenting to her real estate business. Cockrell re- part. quested Murphy return her key office so that she could sure that Murphy was OPINION using PVA resources for campaign MARTIN, JR., BOYCE F. Circuit purposes. Judge. Apparently, campaign the spirited awas
Brenda Murphy brought one, suit against as both parties greatly coveted the Cockrell, Linda as an individual and in her title of Montgomery County Property Val- capacity official as Montgomery County, uation Administrator and all accou- Kentucky, Property Valuation Administra- trements that accompany position. such a (PVA), tor alleging First, violations of the Not surprisingly, the campaign created a Fourth, and Fourteenth great Amendments and deal of tension parties between the wrongful discharge arising out of her dis- at the PVA office. Apparently, missal from the Montgomery County PVA campaign signs attacked per- Cockrell’s office. Murphy appeals now the district inexperience ceived in real estate valua- grant court’s summary judgment in fa- tions and also found fault with Cockrell’s vor of only Cockrell as to her First and change of party allegiance shortly before affidavits, if file, any, together with candi- on Republican as the nomination genuine there is no issue show that
date.
moving par-
fact and that the
any material
was
Cockrell
On November
judgment
as a matter of
is entitled to
ty
Two
County PVA.
Montgomery
elected
56(c). Additionally,
Fed.R.Civ.P.
law.”
later,
in accord with what
days
apparently
must
the facts and
this Court
construe
and businesslike
very
efficient
must be
in favor of the non-
draw all inferences
stat-
office,
Murphy a letter
sent
Cockrell
Elec. Indus.
moving party. Matsushita
are
“Your services
following:
ing only
Corp.,
Zenith
Co. v.
Radio
immediate-
required, effective
longer
587-88,
A. Speech Protected individual’s to run for political of- The issue before fice.”). this Court is least At three district courts have whether speech during the asked construe the holding Car- course of her campaign protected un ver, and have come to the conclusion that der the First pre Amendment. We have dismissal because candidacy does not viously held that there violate Amendment, the First absent some right to candidacy under the First Amend showing that the termination was motivat- ment, and a employee may be termi ed the employee’s political beliefs, ex- nated because of the fact of employ pressions, affiliation, partisan political ac- ee’s candidacy. Dennis, Carver v. 104 tivity, or expression opinion. See Cir.1997). F.3d 850-51 However, Parsley, Greenwell v. 2007 WL we limited our holding Carver to the *1 (W.D.Ky.2007); Cupit v. Charter Twp. question of whether the First Amendment Mundy, WL at *2-3 recognized government employee’s abili (E.D.Mich., 2006); Becton, 48 F.Supp.2d at ty to run for office aas fundamental right. 756.1 In present case, Cockrell ex- *5 We cautioned that the “constitutionality of pressly deposition stated at that if Murphy Carver, dismissing government a employ had simply candidate, remained a and not ee, beliefs, political her her expression actively campaigned, she would have been beliefs, of those or her political affiliations allowed keep to job. Thus, her because is not before us.” Id. at 849. Subsequent Murphy was not terminated based on the ly, courts within this Circuit have warned fact of candidacy, her this case does not against reading broadly. Carver too See fall within the holding narrow of Carver. Thomas, Becton v. 747, 48 F.Supp.2d 756 (W.D.Tenn.1999) (“There question is no Our task is to question answer the left that the court found no right by fundamental unanswered Carver: whether the First political to candidacy. Nevertheless, the protects Amendment a public employee Sixth Circuit had clearly no intention of from termination based on that employee’s Recently, panel ques 913, of this Court Finlay, also (4th F.2d Cir.1981) 664 927-28 Carver, validity tioned the of but nonetheless (recognizing "[t]he pro [FJirst [AJmendmenl’s determined that where an employee is fired tection of the freedom of association and of strictly because of fact employee’s the of that rights office, the to run for have one's name candidacy, rival the First Amendment has not ballot, on the present and one's views to the Dean, Myers violated. v. Fed.Appx. 216 electorate”); Brennan, Newcomb v. 558 F.2d 552, (6th Cir.2007). 553-54 Other Circuits 825, (7th 1977) 829 (holding Cir. that the Carver, rather, have not followed they have "plaintiff's running interest in Congress found "[disciplinary that action discouraging thereby and expressing political his views a candidate's bid for elective repre office without interference from state officials ... punishment sent[s] by the state based on the lies at the core protected of the by values the content of a protected communicative act Amendment”); First Magill Lynch, v. 560 the First Amendment.” Bergna, v. Finkelstein 22, (1st Cir.1977) (“It F.2d 27 appears 1449, that (9th 924 1991); F.2d 1453 Cir. see also government the may place Blunt, limits on cam 260, Stiles v. 912 F.2d 265 Cir. 1990) paigning by public employees if (recognizing right the limits "the to run for office”); Gordon, substantially government 1551, Flinn v. serve 775 F.2d interests that (11th Cir.1985) ("[H]e 1554 important are certainly enough outweigh had a to the em constitutional ployees' run to for office and to rights.” (emphasis ”); hold office once added)). Washington elected.... v.
451
values,
pro
special
and
entitled to
ment
own candi-
during her
expressions
(Internal
marks and
quotation
tection.”
based on
in Carver was
holding
The
dacy.
omitted)).
prog
Connick
its
citations
of little relevance
which are
decisions
two
public employees
of
eny protect
rights
the
(cit-
at 850-51
104 F.3d
case. See
to this
see,
choice,
e.g.,
of their
support parties
143,
Carter,
92
405 U.S.
ing Bullock
Regents
Bd.
Univ.
Keyishian v.
(1972), and Clem-
of
of
31 L.Ed.2d
S.Ct.
675, 17
589, 87 S.Ct.
of N.Y., 385
State
457 U.S.
Fashing,
ents v.
(1967),
campaign for
and to
L.Ed.2d
(1982)). In
73 L.Ed.2d
S.Ct.
choice, Sowards,
their
candidates of
Carter,
of these deci-
the first
Bullock v.
of a
candi
(“Support
at 432
F.3d
that
simply
sions,
Court held
Supreme
scope
within
date falls
per-
obligation
permit
have no
states
association.”).
See
appear on the ballot.
name to
son’s
(“[T]he
Texas
cited
teaching
of the above
cases
The
405 U.S.
Murphy sup
ac-
if
to candidate
leads us to believe
barriers
system creates
in the race for
ballot,
tending
another
thereby
ported
candidate
primary
cess to the
than
County PVA other
Montgomery
from which
candidates
limit the field of
Cockrell,
such
would be
conduct
The existence
might choose.
voters
fact,
if Mur
by the First Amendment.
compel
of itself
does
barriers
such
actively campaigned
simply
phy
Furthermore, while
scrutiny.”)
close
Cockrell,
had not become a
but
against
second case
Fashing,
Clements
herself,
speech
would be
candidate
uphold a law
upon,
relied
did
which Carver
fact
argues that the
protected. Cockrell
from
elected officials
certain
prohibiting
candidate,
sup
Murphy was a
the deci-
legislature,
running for the state
such,
enough
is reason
herself
ported
cases where
distinguished
expressly
sion
*6
Murphy’s termi
justify
under Carver to
at
457 U.S.
is the
civil servant
candidate.
in
Carver
decline to extend
nation. We
972,
expanded the
2836. Carver
102 S.Ct.
a manner. Carver
itself distin
such
fit
cases to
the
holdings in these two
in which candidates
guished cases
no funda-
there is
proposition that
broader
differently
treated
singled out or
by the
candidacy protected
right to
mental
ex
viewpoints or
political
on their
based
not,
Amendment,
did
and
but Carver
was dis
noting that Carver
pressions,
these
holdings of
not under
the
could
his
on the fact of
solely
missed
based
cases,
any further.
go
Carver,
views.
candidacy,
political
not his
to Bullock and Clem
In addition
recog
expressly
We
the factual requirements political of (1943)). 63 S.Ct. L.Ed. affiliation, expression and partisan political B. Overriding State Interest
activity,
expression
or
opinion,
of
and to
precedent
read into that
a fundamental
Having held Murphy’s speech dur
candidacy.”).
ing the course of
campaign
pro
to be
tected under
Amendment,
the First
we
Because we hold that Murphy’s speech
must now determine whether Cockrell had
during the course of her campaign
pro
is
an “overriding state interest
in efficient
Amendment,
tected under the First
we
public service that would be undermined
quickly address the district court’s deter
by [Murphy’s]
Silberstein,
speech,”
mination that
speech
the
by Murphy
used
F.3d at
and thus was entitled to ter
during her campaign was not an actual
minate Murphy.
expression
political beliefs,
of
and thus not
employ
We
the balancing test
worthy of protection. The district court
Educ.,
outlined
Pickering v. Bd.
found that during the
course
the cam
563, 574,
20 L.Ed.2d
paign,
merely
Murphy
called
question
into
(1968),
to determine if Murphy’s free
experience
Cockrell’s
party
affiliation.
speech interests outweigh Cockrell’s in
The district court held that because such
terests in maintaining an efficient PVA
speech was not an expression of political
office. Scarbrough v. Morgan Cnty. Bd.
beliefs,
views or
Murphy
not engage
did
of Educ.,
Cir.2006).
470 F.3d
protected conduct. Murphy argues that
Murphy’s speech during the course of her
“the
ultimate
any
consideration in
campaign
“will
in a
considered
race is who is the better candidate ... To
vacuum;
manner, time,
place
suggest that the endorsement of a candi
employee’s
expression
relevant,
are
date is not
expression
of a political
is the context
in which
dispute
belief borders on the ludicrous.” Appel
arose.” Id. at 257-58.
In
justi
order to
lant’s Br.
We
believe
fy Murphy’s termination, her speech must
Sowards,
correct.
this Court stated
“impair discipline by superiors, have a
that “support
for a
candidate falls
detrimental impact on close working rela
within the scope of the right
*7
tionships,
legitimate
undermine a
goal or
association.” 203
Thus,
F.3d at 432.
if
mission of the employer, impede
per
the
Murphy
been holding
signs
the same
formance
[Murphy’s]
duties,
impair
or
with the
message
same
in support of an
harmony among co-workers.” Abridge v.
other candidate running against Cockrell,
Wilkinson,
474,
Fed.Appx.
479-80
her activities would
protected
have been
(6th Cir.2006) (citing Rankin v. McPher
by the First Amendment. The district
son,
378, 388,
483 U.S.
2891,
107 S.Ct.
court’s ad hoc
that
determination
the mes
(1987)).
L.Ed.2d 315
Cockrell bears the
sage conveyed by Murphy’s campaign was
burden of “showing
legitimate
justifica
“political”
enough to
protec
warrant
tion
discipline.”
Id.
tion is
support
without
inis
error. As
Supreme
the
stated,
Court
there
“[i]f
Neither party,
court,
nor the district
has
any fixed
in
star
our constitutional constel
addressed the Pickering balancing test.
lation, it
official,
is that no
high or petty, Due to the de novo nature of our review of
can prescribe what shall be orthodox in
matter,
this
attempt
we
parse
to
from the
”
politics....
Elrod v. Burns,
347,
427 U.S.
possible
record the
government
interests
96 S.Ct.
Because it is not posi- category one authority available Murphy’s because of terminated po- or delegated; has campaign, tion-holders during the political speech law, by possessing in not named sitions protected political was we now hold which or pattern Amendment, jurisdiction’s virtue of under the expression type or of quantum same practice the inter- countervailing governmental and no discretionary authority commonly held distributing, collecting, and auditing prop- by category positions one juris- other erty returns, tax those duties also fell out- dictions; side of exception. positions These ar- Category Three: guably confidential advisors contain more discretionary duties who spend significant than portion of that of Murphy’s position their deputy as job time on the advising category one PVA. Murphy responsible for deed position-holders or two conveyances, on how to exer- exonerations, tax and tax as- cise their statutory delegated or policy- sessments. Many of responsibilities these making authority, or other confidential governed are by See, Kentucky statute. employees who control the lines of com- e.g., 132.810; § K.R.S. 133.110; K.R.S. munication to category positions, one K.R.S. A deputy 133.170. PVA’s discre- category position two or confidential ad- tionary authority merely applying involves visors; the rules and standards set forth these Category positions Four: part that are statutes. Murphy was not in a confidential of a positions group by filled or policymaking position balanc- deputy PVA; ing out party representation, position or was more akin to those found that are by filled balancing out to fall selec- outside the exception in McCloud. tions by governmental made different Therefore, we find that Cockrell is not agents or bodies. entitled to qualified immunity exception. Elrod-Branti Cir.1996)(footnotes 97 F.3d omitted)(emphasis original). 2. Fourteenth Amendment Claim Only the first two categories are rele- The district court held on sum vant here. argues Cockrell that her posi- mary judgment that Murphy had no rea tion obviously falls within Category One as expectation sonable employ continued position law, defined state ment her position with office, the PVA’s and that Murphy’s position falls into Cate- thus had no property gory inter Two because delegated Cockrell est under the Fourteenth Amendment. significant portion of her discretionary The district court reached this conclusion duties to Murphy in her role as deputy based on the fact that Murphy was an at- PVA. While position Cockrell’s may very will employee who, according Kentucky well fall within Category proposi- One—a law, could discharged “be any reason, tion that is far from conclusive— including reason, a bad or position reason does not fall Category within Two. ” political reasons.... Martin Correc McCloud, this Court found the follow- tions Commonwealth, Cabinet ing positions within a county auditor’s of- S.W.2d (Ky.1991). Accordingly, fice fell outside the Elrodr-Branti excep- her section claim for violation of her (1) tion: real estate administrator, division rights under the Fourteenth Amendment (2) personal property tax division adminis- was dismissed. trator, (3) estate tax administrator. The district court was correct in Specifically, its McCloud de- found that the real termination. estate division administrator’s duties con- sisting of the valuation of real estate for 3. State Law Claim for
property tax purposes fell any outside Wrongful Discharge *9 the four categories listed above. McCloud also found that personal where the proper- The district court’s decision dis ty tax administrator’s duties consisted of missing Murphy’s wrongful discharge Jones, Four- dismissing Murphy’s court’s decision Bennett v. relied on
claim claim, Bennett, Amendment and REVERSE it teenth In (Ky.App.1993). S.W.2d summary judg- grant the district court’s has no claim deputy a PVA held that was Murphy’s wrongful discharge fires ment discharge when the PVA wrongful proceed- REMAND for further to run for claim. We announcing her intent her for ruling. this ings accordance with was based on Ken- position. This the PVA unclassified at-will that an tucky’s policy JR., GUY, concurring RALPH B. any rea- may discharged for
employee dissenting part. part Mar- son, reasons. See including political tin, Additionally, Ken- at 860. 822 S.W.2d summary judgment that was agree I deputy that a statutory law tucky provides on the properly granted to the defendant and discretion pleasure at the PVA serves claim, process respect- due but plaintiffs 139.590(8). § Because K.R.S. of the PVA. from the reversal of the deci- fully dissent raised, statutory authority was contrary summary judgment to the granting sion was no found that there the district court claim defendant on the First Amendment Kentucky protecting deputy policy § law 1983 and the state under U.S.C. person when that from termination PVA discharge claim. wrongful position. run for the PVA decides to my my disagreement is At the heart
However, analysis ignores this presented by Mur- view that the evidence protected Murphy has shown a fact that that her dis- phy herself demonstrated constitutional States United account of her rival candi- charge was on express politi her the First Amendment political beliefs or dacy and not for her cam the course of her during cal beliefs Indeed, Murphy it who affiliations. was Kentucky, above. as discussed paign, only told her to that Cockrell not testified action employee has a cause of at-will “[a]n nominating and back call the committee discharge discharge when the wrongful race, that but also told her she out of the contrary to fundamental and well-de is her job dropped her if she keep could by consti as evidenced public policy fined they conceded that candidacy. Cockrell statutory provision.” Stargle tutional or only that the fact candidly discussed Pamida, (W.D.Ky. *2at 2007 WL be em- probably would still one of them 2007) v. Hous. Auth. (citing Boykins office once the election in the PVA ployed Louisville, (Ky.1992)). 842 S.W.2d that Notwithstanding evidence was over. has shown a fundamental Because contentious and Cockrell the race was Constitu under the United States policy campaign liter- umbrage Murphy’s took em discharge against tion char- impugning experience her ature beliefs— voicing their ployees for acter, rival candi- plain it merely becoming a distinguished from discharge. for the dacy the motivation claim for may maintain a candidate —she therefore, case, be distin- cannot This wrongful discharge. Carver, court in which this from guished clerk deputy court plaintiff, held that the
III. not estab- employee, had and an at-will First Amendment reasons, we RE- lished foregoing Based on incum- the defendant —the against on to run court’s decision the district VERSE still supervisor bent clerk and dismissing Murphy’s summary judgment —and Dennis, 104 F.3d job. retain her Carver of her First claim for violation section 1983 Cir.1997). is this conclusion Nor the district rights, AFFIRM *10 the fact that ter- by undermined only
mination after the election re- came Dean, Myers
sults were known. See (6th Cir.2007).
Finally, persuaded I am
phy’s argument that Carver can distin-
guished discharged she was because
only for of her candidacy the fact but also
for the which she campaigned. manner observed, court aptly
As the district this
turns “on the attack- question whether your
ing opponent’s political experience is
akin expression to an beliefs.” it,
As I “I saying see am a better or more
experienced my candidate than boss”
nothing more than assertion of a rival
candidacy. I only believe reason-
able conclusion to be drawn in case is this discharged for her rival
candidacy not on politi- account of her
cal beliefs or affiliations.
Dwight SPENGLER, Plaintiff-
Appellant, INC., SERVICES,
ADT SECURITY
Defendant-Appellee.
No. 06-2537.
United Court Appeals, States
Sixth Circuit.
Argued: Sept. 2007.
Decided and Filed: Oct.