Plaintiff Kenneth C. Nelms brought suit against defendants,
I. Facts
The facts, set forth in more detail in the district court’s opinion, are as follows: In July 1992, plaintiff Kenneth Nelms was hired as a field investigator in the Consumer Protection Division (“CPD”) of the Office of the Attorney General of Indiana. At that time, Linley Pearson, a Republican, held the office of Attorney General. As a field investigator, Nelms was responsible for investigating and resolving consumer complaints. ' Complaint analysts would receive initial complaints from consumers and would make initial contacts with the businesses that wei’e the targets of the complaint. At the request of complaint analysts or attorneys, field investigators then would go out into the field to find the businesses that had not responded to the complaint analysts, to gather information, and/or to collеct money. At the time Nelms was hired, there were two other field investigators working in the CPD: Oscar Donahue (age 73 and hired in 1982) and Jeral Baker (age 62 and hired in August 1991). Nelms was involved primarily with automobile complaints.
In November 1992, Pamela Carter, a Democrat, was elected Attorney General. Upon taking office in January 1993, she appointed Dennis Lee as her Chief of Staff, Daniel Dovenbarger as Chief Counsel for General Litigation and Lisa Hayes as Chief Counsel for the CPD.
In May 1993, Baker was terminated. While defendants allege that Baker resigned voluntarily, Nelms claims, as does Baker, that Lee asked Baker to resign because he was not compatible with the goals of the new administration. When he refused, he was fired. Defendants did not hire anyone to replace Baker.
In an effort to restructure the CPD, Hayes and Lee wanted to reduce the role of field investigators and rely mоre on complaint analysts who had a wider range of skills. Under the Pearson administration, three field investigators were employed in the CPD. In May 1993, one position was eliminated when Baker was terminated and not replaced. By June 1993, Lee and Hayes had decided to eliminate another field investigator position.
In determining whether to retain Donahue or Nelms as the sole investigator, Hayes considered that Donahue had more exрerience in the position, having been with the CPD for more than ten years, in contrast to Nelms who had been employed for a little over ten months. In addition, Hayes viewed Nelms as “unprofessional,” finding his behavior of flashing money he had received around the office inappropriate. She considered him to be a “suck-up” and believed his skills were limited. Donahue, on the other hand, was considered to be a model employeе. Therefore, in June 1993, Hayes and Lee decided to retain Donahue as the only remaining field investigator in the CPD and discharge Nelms.
On June 4, 1993, Lee met with Nelms and told him that “You know when Pam Carter took office, she had certain goals and plans for this administration * * *. Well, I am here to inform you that higher authority [namely, Carter] has instructed me that you do not fit into those goals and plans of the Attorney General’s Office.” When Nelms refused to resign, Lee advised him. thаt he was terminated. In response to Nelms’ inquiry as to what he had done wrong, Lee replied that he hadn’t done anything wrong and then stated “You understand political realities.”
Subsequent to Nelms’ termination, the administratiоn attempted to transition to a system where a single Investigation Section would do the investigative work, rather than investigators employed in each division. To test this plan, they brought Bill Ingram, an investigator from the Torts Section, over to the CPD in February 1994. While the plan to cross-train investigators for the entire Attorney General’s office was eventually abandoned, Ingram stayed in the CPD because Donahue had resigned in December 1993, and someone was needed to fill his spot.
II. Analysis
“[Djismissals of public employees for reasons of political patronage are violations of the First Amendment,” Patkus v. Sangamon-Cass Consortium,
The district court found it unnecessary to the disposition of the case to address the constitutional issue of whether Nelms’ position at the CPD was one for which political affiliation is a permissible requirеment because, even assuming, arguendo, that terminating Nelms because of his political affiliation would violate the First Amendment, the district court reasoned that Nelms had not met his burden of proof of establishing that his termination was in fact politically motivated. We agree.
In order to establish a prima facie case of politically motivated discharge, Nelms must “prove by a preponderance of the evidence that his conduсt was constitutionally protected, and that the protected conduct was a substantial factor in the decision to terminate him.” Garrett v. Barnes,
Because Nelms’ conduct, his Republican party membership, is constitutionally protectеd activity, the question then is whether Nelms has demonstrated that defendants were “motivated, at least in part, by that conduct to fire him.” Id. In order to prove that defendants were motivated by his political affiliation, Nelms first must prove that defendants in fact knew of his Republican party membership. Id. We agree with thé district court’s finding that while Nelms presented no direct evidence that anyone in the Carter administration was aware of his political аffiliation, the fact that he ran for an office as a Republican in the November 1992 election raises a material question of fact as to defendants’ knowledge. However, as the district court continued, “even if Defendants were aware of * * * Nelms’ * * * political affiliation, [his] claim[ ] still must fail, because * * * Nelms * * * has [not] presented any evidence that would support a finding that Defendants’ decision to terminate * * * [him] was politically motivated.” May 22, 1997 Opinion, at 27.
Nelms contends that the following comments serve as sufficient evidence that defendants terminated him because of his political affiliation: (1) Donahue’s alleged statement that “[y]ou are going out of here * * * [yjou’re a Republican politician, and my people are in there;” (2) Brown’s alleged comment that she was aware that Nelms was a Republican and ran for office and that his political аffiliation might be a problem for Carter and Lee; and (3) Lee’s statement, “[y]ou understand political realities,” made when he discharged Nelms. We agree with the district court’s conclusion that “[assuming that Donahue, Brown and Lee did make the comments attributed to them, those comments were insufficient to raise a material issue of fact whether Carter, Lee or Doven-barger were motivated by Nelms’ political affiliation in discharging him.” Id. at 28.
As for the аlleged comments made by Donahue and Brown, neither Donahue nor Brown was involved in the decision to terminate Nelms. Rather, it was Hayes who made the recommendation to terminate Nelms and retain Donahue as the sole remaining investigator. In addition, neither Donahue nor Brown had any way of knowing whether Nelms was going to be discharged because of his political affiliation. In fact, Nelms conceded that Brown merely speculаted that his political affiliation “might” be a problem for Carter and Lee. And Donahue never indicated to Nelms that anyone else in the CPD had ever discussed Nelms’ political affiliation with him. As the district court emphasized, Nelms “cannot rely on the speculation or opinions of non-decision makers as proof that Defendants fired him because of his political affiliation.” Id. at 29. “ ‘Stray remarks in the work place * * * cannot justify requiring the еmployer to prove that its decisions were based on legitimate criteria. Nor can statements made by non-decision makers or statements made by decision makers unrelated to the decisional process itself suffice to satisfy the plaintiff s burden in this regard.’ ” McCarthy v. Kemper Life Ins. Companies,
Nelms directs us to two cases where this Court determined that political affiliation was a motivating factor in the decision to terminate employment, arguing that the evidence in his case is even more substantial. We disagree. In Felton v. Bd. of Comm’rs of Greene County,
In Nekolny v. Painter, this Court held that plaintiffs met their burden of demonstrating that their termination was politically motivated where the defendant’s assistant specifically had informed them that they were losing their jobs because they had worked against the defendant in the election.
Because the plaintiffs in Felton and Nekolny presented more substantial evidence that they had been terminated because of their political affiliation, Nelms cannot rely on those cases in order to avoid summary judgment. Thus we are in accord -with the district court’s conclusion that Nelms has not established a prima facie case of politically motivated discharge.
B. Even if Nelms had Established a Pri-ma Facie Case, Defendants Proffered a Legitimate, Non-Political Reason for his Termination
Even if Nelms had established a prima facie case, summary judgment still would be warranted because defendants have produсed a legitimate, nonpolitical reason for their decision to terminate Nelms — the restructuring of the- Office of Attorney General. Specifically, Hayes and Lee wanted to reduce the role of field investigators in the
Nelms has not presented evidence casting doubt on -defendants’ reason for his terminatiоn. Specifically, he has not shown that the decision to reorganize the CPD was politically motivated. Nor has he established that defendants’ stated reasons for retaining Donahue over Nelms were not the real reasons for his termination. Thus, even if Nelms had been able to establish a prima facie case, defendants still would be entitled to summary judgment because he has. not demonstrated that defendants’ proffered reasons for his termination were not legitimate and that his termination was motivated by his political affiliation.
Nelms argues that, regardless of defendants’ reasons for his termination, summary judgment is inappropriate because he was performing his work satisfactorily. In support of this, he offers the testimony of former supervisors from, the prior administration. However, we first note that such testimony is irrelevant because the fact that Nelms may have fit in with the goals arid plans of the prior administration does not mean that he meets the goals of the current administration. More to the point, “[Nelms’] contention that he was performing his job satisfactorily, even if true, does not prove that the motive for his firing was political.” Garrett,
III. Conclusion
Nelms has failed to present sufficient evidence to establish a prima facie case that his termination was politically motivated. Even if he had been able to do so, summary judgment still would be appropriatе because defendants have proffered legitimate, non-polit
Notes
. Specifically, in the district court, Nelms, along with three other individuals, brought suit against defendants Daniel B. Dovenbarger, Dennis P. Lee and Pamela Carter, in their individual and official capacities. In May 1997, Jeffrey A. Modi-sett was substituted for defendant Carter in his official capacity as Attorney General of Indiana, with Carter remaining as a defendant in her individual capacity. However, in response to defendants’ motion for summary judgment, Nelms abandoned his § 1983 First Amendment claims against defendants in their official capacities, recognizing that such claims were barred by the Eleventh Amendment.
. Lee denies making this comment. However, fоr purposes of a motion for summary judgment, we must accept as true plaintiff's version of the facts.
. While Brown denies that this conversation between her and Nelms ever occurred and contends that she was unaware of Nelms’ political affiliation, such an issue of fact is not appropriately decided on a motion for summary judgment.
. Nelms urges this Court to disregard the standard set forth in Garrett and permit him to establish a prima facie case using the standard employed in Title VII cases. We reject Nelms’ suggestion to overrule our decision in Garrett. As we noted in that case, ’’[fjacts suggesting that
. The district court also noted that Nelms' testimony regarding what Brown and Donahue allegedly said is inadmissible hearsay. Hong,
. Additionally, Nelms argues that defendants should have made him a complaint analyst rather than terminate him and the fact that they did not indicates that their decision to fire him was politically motivated. However, he offers no evidence indicating that such a position was even available at the time of his termination.