O‘Nеal TERRY, Mary Jane Brown, Steve Strickland, J.D. Hopkins, Amy Henderson, John R. Turner, Dora Latham, Grady Sanderson, Maurice Stovall, Jackie Terry, Sharon Latham, Andrew Allen, Belinda Wilkerson, Joy Suski, Lavon Wallace, Vernon Bradford, James Jett, Harold Smith, Lionel M. Sheffey and Richard Turner, Plaintiffs-Appellants, v. A.C. COOK, individually and in his official capacity as Sheriff of Lawrence County, Alabama; Paul D. Cain, individually and in his official capacity as Chief Deputy Sheriff of Lawrence County, Alabama; Earl “Sonny” Malcom, Jr., Coy Dwight Gray, Ferman Grimes, Randy Waldrep, Larry Louallen, and Mose Jones, Jr., in their official capacities as Chairman and members of the Lawrence County Commission, Defendants-Appellees.
No. 87-7456
United States Court of Appeals, Eleventh Circuit
Jan. 12, 1989
866 F.2d 373
Falkenberry & Whatley, John C. Falkenberry, Birmingham, Ala., Balske & Van
D.L. Martin, Moulton, Ala., for A. Cook, P. Cain, D. Gray, F. Grimes, R. Waldrep, L. Louallen and M. Jones.
Webb, Crumpton, McGregor, Sasser, Davis & Alley, James W. Webb, Kendrick E. Webb, Montgomery, Ala., amicus curiae on behalf of defendants-appellees.
Morring, Schrimsher & Riley, Sharon D. Hindman, Huntsville, Ala., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Alabama.
Before FAY and KRAVITCH, Circuit Judges and ATKINS*, District Judge.
ATKINS, District Judge:
This court is presented with the wholesale refusal of a newly elected sheriff to reappoint or rehire any of his predecessor‘s employees. The complaint alleged that the newly elected sheriff discharged the plaintiffs for political reasons in violation of
The plaintiffs were deputy sheriffs, clerks, investigators, dispatchers, jailers, and process servers under the former sheriff of Lawrence County, Alabama, Dan Ligon. The defendant A.C. Cook defeated Ligon on November 4, 1986, after campaigning on a platform that promised “a change” in аdministration. Throughout the campaign and prior to assuming office, Cook publicly declared his intention to replace all of Ligon‘s employees “from the secretary and jailer up to the chief deputy,” with persons who supported his election. On January 2, 1987, approximately three weeks prior to the termination of Ligon‘s term, the plaintiff Terry appeared before the Lawrence County Commission as spokesman for the employees and asked the commission‘s assistance in preventing Cook‘s intended housecleaning. At the same meeting, Cook again announced his intention to replace all of the employees who had opposed his election.
The commission requested the opinion of the Alabama Attorney General but, prior to its receipt, confirmed Cook‘s plan. Cook took office on January 20, and, with his newly appointed chief deputy, defendant Cain, directed a notice to each plaintiff relieving him of his duties.
The plaintiffs sued Sheriff Cook and Chief Deputy Cain in their individual capacities and the sheriff, chief deputy, and the Lawrence County commissioners in their official capacities. The complaint alleged that the plaintiffs were terminated for failure to support Cook in his political race in violation of the First and Fourteenth Amendments. The plaintiffs also alleged a violation of their right to due process because they were released without a pretermination hearing. Plaintiffs Allen, Sheffey, and Stovall further alleged that their discharge was triggered by racial animus in violation of
The defendants moved to dismiss the original complaint for failure to state a claim under
In the amended complaint, claim one stated generally that some of the plaintiffs had applied directly to Sheriff Cook for reappointment to their former positions and some had applied indirectly through friends or relatives. Several of the plaintiffs alleged that it would have been futile for
Defendants moved to dismiss the amended complaint. The court granted this motion, admonishing the plaintiffs for what it viewed as their failure to delineate which plaintiffs did and which plaintiffs did not reapply for their former positions. The court allowed the plaintiffs to amend their complaint and directed those plaintiffs who had applied directly for employment to state when, how, and for what job or appointment. The court also required that those who had not applied “allege with specificity the exact position in the newly elected sheriff‘s office which he (or she) would have this Court and jury fictionally presume he (or she) made application.”
The plaintiffs’ second amended complaint set forth detailed allegations of each plaintiff‘s attempt to retain or regain positions in Sheriff Cook‘s administration. The district court found the claims in the second amended complaint subject to the same fatal pleading deficiencies and granted the defendants’ motion to dismiss with prejudice.
We must determine whether, considering the facts in the light most favorable to the plaintiffs, it appears beyond doubt that they can prove no set of facts that would entitle them to rеlief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
I. THE SECTION 1983 CLAIM
A. The Appropriate Test
Public employment may not be conditioned upon requirements that violate constitutionally protected interests. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). A public employee‘s protection is not absolute, however. The court must balance “the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568, 88 S.Ct. at 1734. Because of the variety of situations in which critical statements may be the basis for discharge of a public employee, there is no general standard for determining in whose favor the balance is struck. Rather, the courts have developed standards which distinguish two types of cases—those involving employee expression and those involving “raw political patronage.”
In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), the Supreme Court considered the question of political patronage and weighed the balance in favor of the employees. To maintain their jobs, all of the Sheriff‘s Office employees were required to pledge their political allegiance to the Democratic party, work for election of Democratic candidates, contribute a portion of their wages to the Democratic party, or obtain the sponsorship of a member of the Democratic party. The plaintiffs, including the Chief Deputy of the Process Division, a process server, bailiff, and security guard, alleged that they had been discharged or threatened with discharge solely because they were not affiliated with or sponsored by the Democratic party. The district court dismissed the complaint for failure to state a claim and the court of appeals reversed. The Supreme Court аffirmed in a plurality opinion in which Justice Brennan articulated the standard for weighing the conflicting interests.
In short, if conditioning the retention of public employment on the employee‘s support of the in-party is to survive constitutional challenge, it must further some vital government end by a means that is least restrictive of freedom of belief and association in achieving that end, and the benefit gained must outweigh the loss of constitutionally protected rights.
427 U.S. at 363, 96 S.Ct. at 2685 (footnote omitted). Justice Brennan found limiting
Several years later, the Supreme Court, again faced with the issue of political patronage, balanced the factors in favor of the discharged employeеs and refined the Elrod analysis. In Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), the Court considered a Democratic Public Defender‘s discharge of two assistant public defenders because they were Republicans; all assistants retained or appointed were Democrats or were selected by the Democratic legislators or town chairman using criteria that had been outlined by the Democratic caucus. The Court reasoned that, because an assistant public defender‘s primary responsibility is to represent individual citizens in controversy with the state, his employment could not properly be contingent upon allegiance to the political party in control of the county government. The Court held that, under the circumstances presented, such a requirement would undermine rather than promote effective job performance. Id. at 519-20, 100 S.Ct. at 1295-96.
In the present case, the district court concluded that Elrod and Branti had been modified by the Supreme Court‘s rationale in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), in which the Court visited the question of employee expression and its effect upon continued employment. In Connick, an assistant district attorney had been discharged for circulating a questionnaire soliciting the views of co-workers on the office transfer policy, grievance procedures, morale, confidence in supervisors, and whether employees felt pressured to work for political campaigns. The Court acknowledged the public concern raised by the issue of pressure to campaign but held that the questionnaire, considered in its entirety, related to matters of public concern in such a limited way that discharge did not offend the first amendment. In the Court‘s view, the questionnaire was primarily an employee grievance that concerned internal office policy whose limited first amendment implications did not outweigh the interest of the employer.
The Connick analysis requires that the court determine if an employee is speaking about matters of public concern and balance that interest against the employer‘s interest in efficiency and discipline. Although the Court noted that official pressure to campaign is a coercion of belief that violates fundamental rights, 461 U.S. at 149, 103 S.Ct. at 1691 (citing Branti, 445 U.S. at 515-16, 100 S.Ct. at 1294-95; Elrod, 427 U.S. 347, 96 S.Ct. 2673), the Court did not explore the issue of loyalty and its effect on an employee‘s performance; neither did the Connick Court equate the employer‘s decision to terminate the assistant district attorney with the wholesalе patronage dismissal examined in Elrod and Branti.
We are troubled by the district court‘s synthesis of the Elrod-Branti and Connick analyses and the resulting equation of patronage cases with employee speech cases not involving patronage practices; we disagree with the district court‘s determination that Connick controls the case before this court. The factors identified in Connick are not relevant in cases when employees are discharged en masse by a prospective employer or supervisor. See, e.g., Joyner v. Lancaster, 815 F.2d 20 (4th Cir. 1987) (discharge of one deputy sheriff by newly elected sheriff for lоud and open campaign for the opposition when twenty to thirty other employees stated that deputy‘s activities were causing “pervasive distrust and plummeting morale” subject to Connick analysis); Jones v. Dodson, 727 F.2d 1329, 1334 n. 6 (4th Cir. 1984) (raw political patronage discharge of Elrod-Branti
B. Chief Deputy and Deputies
Under Alabama law, a deputy sheriff is the general agent of and empowered to enter into business transactions for the sheriff. Any transaction within the scope of the sheriff‘s duties mаy be acted upon by his deputy. Ramsey v. Strobach, 52 Ala. 513, 515 (1875). The deputy sheriff is the alter ego of the sheriff, Mosely v. Kennedy, 245 Ala. 448, 17 So.2d 536, 537 (1944) (citations omitted), and the sheriff is civilly liable for actions committed by a deputy done in the performance of his duty. Taylor v. Gibson, 529 F.2d 709, 716 (5th Cir. 1976); Salter v. Tillman, 420 F.Supp. 5, 8 (S.D.Ala. 1975); Perkins v. Hopkins, 14 Ala. 536, 537 (1848).
At least one court has recognized that “‘[i]t was never contemplated that the sheriffs of the state must perform the powers and duties vested in them through deputies or assistants selected by someone else.‘” Tanner v. McCall, 625 F.2d 1183, 1186 (5th Cir. 1980) (quoting Blackburn v. Brorein, 70 So.2d 293, 298 (Fla. 1954)). The district court in Whited v. Fields, 581 F.Supp. 1444, 1456 (W.D.Va. 1984), interpreting Virginia law, likewise recognized:
Is it not then a matter of vital government interest that the sheriff have complete and absolute control and authority over who his deputy sheriff will be regardless of any first amendment limitations if he is totally responsible for the acts of his subordinates? This court is of thе opinion that unless this is the exception that the Court had in mind when it laid down the Elrod-Branti principles, then no exception exists and the Court should have so stated. To mandate that a sheriff must accept the deputies that he finds in office simply because they belong to another political party even though he is totally responsible for all their acts is incredible, and beyond the bounds of common sense.
Id. We agree. The closeness and cooperation required between sheriffs and their deputies necessitates the sheriff‘s absolute authority over their appointment and/or retention.
Undеr the Elrod-Branti standard, loyalty to the individual sheriff and the goals and policies he seeks to implement through his office is an appropriate requirement for the effective performance of a deputy sheriff. Such a requirement strikes at the heart of the Elrod-Branti least restrictive means test which balances first amendment rights of the deputies and the need for efficient and effective delivery of public services. We can find no less restrictive means for meeting the needs of public service in the case of the sheriff‘s deputy than to acknowledge a sheriff‘s absolute authority of apрointment and to decline to reinstate those who did not support him.
C. The Clerks, Investigators, Dispatchers, Jailers, and Process Servers
It has not been established that loyalty to an individual sheriff is an appropriate requirement for effective job performance
We thus find that it does not appear beyond doubt that the remaining plaintiffs can prove no set of facts which would entitle them to relief and remand to the district court for a determination of the actual responsibilities of each position and whether political loyalty to the elected sheriff is a reasonably appropriate requirement for the effective performance of those jobs.
D. The Need for Direct Application
Our inquiry must still consider whether the remaining plaintiffs properly applied for reemployment. In McBee v. Jim Hogg County, Texas, 730 F.2d 1009 (5th Cir. 1984), the Fifth Circuit, sitting en banc, held that the first amendment doеs not require a new sheriff to consider for appointed positions ex-employees who do not seek reinstatement. Id. at 1015. The district court relied on this language and directed the plaintiffs to specify in the amended complaints whether they had applied for reinstatement.
Courts have long recognized circumstances in which a failure to apply may be overcome by facts which demonstrate the futility of such application. See, e.g., International Bhd. of Teamsters v. United States, 431 U.S. 324, 366, 368, 97 S.Ct. 1843, 1870, 1871, 52 L.Ed.2d 396 (1977) (Title VII and National Labor Relations Act recognize that failure to submit futile application does not bаr relief; nonapplicant incumbent employee must show that they would have applied but for discrimination and would have been discriminatorily rejected if they had); Franks v. Bowman Transportation Co., 495 F.2d 398, 418-19 (5th Cir. 1974) (employer‘s heavy reliance on word of mouth recruiting isolated blacks or discouraged them from applying); Bing v. Roadway Express, Inc., 485 F.2d 441, 451 (5th Cir. 1973) (Roadway‘s known discriminatory practices “intimidated and discouraged” blacks from applying); see also Simmons v. Lyons, 746 F.2d 265, 268 (5th Cir. 1984) (the plaintiffs were never discouraged from applying or told that they should not apply).
The plaintiffs alleged that they sought to retain their positions but that Cook had stаted publicly that he intended to replace all of Ligon‘s employees. The second amended complaint detailed their direct and indirect efforts to reapply for their positions and Cook‘s response or lack of response to their efforts. Finally, they alleged that some of the plaintiffs were discouraged by Cook‘s public statements.
E. The Liability of the County Commission and the Chief Deputy
Under Alabama law, the County Commission is authorized to “allow the sheriff to appoint a chief deputy and as many other deputies as are needed in the discretion of the county commission.”
Both the sheriff and his chief deputy may be liable for unconstitutional conduct under section 1983 when personal involvement by both officers is alleged. See, e.g., Baskin v. Parker, 602 F.2d 1205 (5th Cir. 1979); Carr v. Bell, 492 F.Supp. 832 (N.D.Fla. 1980). The unconstitutional conduсt plaintiffs allege is discharge for political reasons but they have not alleged that Chief Deputy Cain was involved personally in this specific conduct. They assert only that Sheriff Cook publicly stated his intent to replace plaintiffs with persons who supported his election, Second Amended complaint at p 7, and to discriminate against plaintiffs because of their political activities, Second Amended Complaint at p 12, but do not allege that Cain made similar statements, or that Cain engaged in any conduct indicating that his actions were politically motivated. They allege only that Cain, along with Cook, directed the notices to plaintiffs relieving them of duty, Second Amended Complaint at p 13, and that either Cook or Cain attended the County Commission meeting in which plaintiffs sought the Commission‘s assistance in retaining their jobs, Second Amended Complaint at p 11. Plaintiffs’ allegations suggest that the chief deputy is liable for the politically motivated discharge by Cook because his name was on the notices relieving plaintiffs of duty. Therefore, we AFFIRM the district court‘s dismissal of Chief Deputy Cain.
II. THE SECTION 1981 CLAIMS
To state a prima facie case of racial discrimination, a plaintiff must show “(i) that he belongs to a racial minority; (ii) that hе applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected, and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant‘s qualifications.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) (footnote omitted).
The plaintiffs’ claim fails on parts (ii), (iii), and (iv) of the McDonnell Douglas test. Plaintiffs Allen, Sheffey, and Stovall have not alleged that they applied but were rejected in spite of their qualifications, nor did they allege that the positions remained oрen and that Cook solicited applicants with the same qualifications. They allege only that they were interested in retaining their positions but did not apply after Cook stated that he “didn‘t care whether he hired any niggers on his staff or not.” Second Amended Complaint at p 22. The allegations contained in the second amended complaint are insufficient to state a prima facie case of racial discrimination. Therefore the district court‘s dismissal of the section 1981 claim is affirmed.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED for further proceedings consistent with the opinion of this court.
While joining in the result reached in this matter, I write sеparately to clarify and emphasize certain parts of today‘s holding. First, I would like to emphasize what the court does not hold. The court has not said that a cause of action lies for Cook‘s fulfillment of a campaign promise to “clean house.” Such a cause of action could not exist. Cook, as a candidate for the sheriff‘s office, has the right to express his complete displeasure with the administration of the previous sheriff. The voters would also have the right to expect Cook to fulfill his campaign promise to completely revamp the sheriff‘s office. The affected personnel in such a case would not be penalized as a result of their exercise of any constitutional rights. They would not be rehired simply because they worked for an administration the voters found in need of change. Since the decision to rehire them was not affected by the exercise (or failure to exercise) of any constitutional rights, they could not claim a constitutional violation.
A cause of action may lie in this case, however, because plaintiffs have alleged that they were not rehired because they either supported the previous sheriff or because they did not support Cook in his bid for office. If such allegations are true, then the plaintiffs are being punished for expressing their preferences between political candidates. The court correctly turns to Elrod1 and Branti to determine whether under those circumstances there is a cause of action.2 Since Elrod and Branti deal with punishment for affiliation with a political party, while this case deals with alleged punishment for support rendered to one political candidate, the court has properly modified the Elrod-Branti test to read: whether loyalty to the individual sheriff is an appropriate requirement for the effective performance of the particular position. At page 377.
I agree that a deputy is so closely associated with the sheriff that loyalty is an essential requirement for the job. Since this case comes before us under
It seems to me that it is important to highlight that the plaintiffs must establish all of the following in order to prevail. The individual applied for employment with Sheriff Cook or proves that such would have been futile. The position sought is not one where loyalty to the incumbent is an appropriate requirement for effective performance. The failure to rehire was because of the plaintiffs’ political support of the previous sheriff. Failure to prove any one of these essentials bars recovery.