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Foster v. Smith

United States District Court, N.D. Mississippi, Oxford Division

July 10, 2017

ALICE SMITH, In Her Official Capacity as Quitman County Tax Assessor/Collector, and QUITMAN COUNTY, MISSISSIPPI DEFENDANTS



         This cause comes before the court upon the defendants' motion for summary judgment. Upon due consideration of the motion, response, exhibits, and applicable authority, the court finds that the motion is well taken and should be granted.

         Factual and Procedural Background

         This action arises from the plaintiff Carol Foster's claim that she was wrongfully discharged from her employment as a deputy tax assessor for Quitman County, Mississippi, because she openly supported the incumbent tax assessor/collector, Willie Holley, who was defeated by defendant Alice Smith. Smith was elected Quitman County Tax Assessor/Collector on November 3, 2015, and informed the plaintiff by letter dated December 21, 2015, that the plaintiff would no longer be employed once Smith took office. The plaintiff filed the present section 1983 action on May 17, 2016, asserting claims that her First and Fourteenth Amendment rights were violated, specifically her rights to free association and free speech, when she was fired allegedly because of her support of Holley.

         Standard of Review

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). On a motion for summary judgment, the movant has the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the movant makes such a showing, the burden then shifts to the non-movant to “go beyond the pleadings and . . . designate specific facts showing that there is a genuine issue for trial.” Id. at 324. Before finding that no genuine issue for trial exists, the court must first be satisfied that no rational trier of fact could find for the non-movant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Summary judgment, although a useful device, must be employed cautiously because it is a final adjudication on the merits.” Jackson v. Cain, 864 F.2d 1235, 1241 (5th Cir. 1989).


         The plaintiff alleges that her dismissal by defendant Smith constituted a “patronage dismissal” in violation of the First Amendment. Specifically, the plaintiff asserts that she was fired because of her loyalty to, support of, and campaigning for the incumbent tax assessor/collector, Willie Holley. The plaintiff claims she was terminated because she worked for the defendant's opponent, openly supported the opponent in the election, and “sat with him in plain view of Defendant while the votes were being counted” on the night of the election. The defendants assert that the plaintiff has presented no credible evidence that Smith even knew that Foster had campaigned for the incumbent, Holley. The defendants further argue that the plaintiff is both a “policymaker” and a “confidential employee” as those terms are defined by applicable case law and that, as such, the plaintiff could be terminated by the defendant without suffering a violation of her First Amendment rights.

         The defendants rely heavily on Stegmaier v. Trammell, 597 F.2d 1027 (1979), in which the Fifth Circuit held that a public employee who was the single deputy and assistant to an elected circuit court clerk could be discharged solely on the ground of her political affiliation without infringing her constitutional rights because she fell within the “confidential employee” exception to the general proscription of patronage dismissals set forth in Elrod v. Burns, 427 U.S. 347 (1976). As the plaintiff notes, however, the analysis of patronage dismissal cases has evolved in the Fifth Circuit since Stegmaier.[1] The categorical approach of determining whether a public employee is a “policymaker” or “confidential employee” may no longer, by itself, deprive the employee of protection from discharge based on political association. See Gomez v. City of Eagle Pass, 91 F.Supp.2d 1000, 1009 (W.D. Texas 2000). Such an approach was expressly rejected in Branti v. Finkel, 445 U.S. 507 (1980), where the Court explained that “the ultimate inquiry is not whether the label ‘policymaker' or ‘confidential' fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation[2] is an appropriate requirement for the effective performance of the public office involved.” Branti, 445 U.S. at 518. Though a finding that a plaintiff was a policymaker or confidential employee is no longer the end of the inquiry, the courts continue to recognize that employees in these roles receive less First Amendment protection than those not in such positions. Gomez, 91 F.Supp.2d at 1009.

         The Fifth Circuit provided a helpful and informative overview of free speech and political association jurisprudence in Gentry v. Lowndes County, Miss., 337 F.3d 481 (5th Cir. 2003), stating:

In a number of cases, the Supreme Court has established that public employees do not necessarily shed their First Amendment rights of speech and political association in exchange for their jobs, but they often must make adjustments. That is to say, the Court has acknowledged that public employees' exercise of certain First Amendment rights may legitimately be restrained where it could lead to an inability of elected officials to get their jobs done on behalf of the public. Courts must balance these important public and individual interests in order to determine the constitutionality of particular adverse employment actions. The balancing test pertinent here considers among other things the policy sensitivity of the employment, the nature and content of the employee's speech or political activity, the extent of public concern implicated by the speech, and whether close confidential working relations with elected officials are necessary. This circuit, interpreting the Court's decisions, places cases involving only political association, only speech, or a combination of the two on a spectrum. Where non-policymaking, non-confidential employees are discharged solely because of their private political views, little, if any, weighing of an employee's First Amendment rights against an employer's right to loyal and efficient service is necessary, and the employee's rights will usually prevail. On the opposite end of the spectrum, however, are cases where employees' exercise of First Amendment privileges clearly over-balanced their usefulness. When cases fall within the spectrum, courts are to balance the extent to which “public concerns” are implicated by the employees' speech or association against the significance of maintaining a close or confidential working relationship with the public employer. Kinsey [v. Salado Indep. Sch. Dist.][3] emphasizes that where a public employee (there, a school superintendent) occupies a confidential or policymaking role, the employer's interests more easily outweigh the employee's First Amendment rights.

Id. at 485-86.

         After a thorough and extensive examination of the Supreme Court jurisprudence on free speech and political affiliation, the Fifth Circuit arrived at a balancing test for public employee dismissal cases of this nature in McBee v. Jim Hogg County, 730 F.2d 1009, 1014 (5th Cir. 1984) (en banc), forged specifically from the Supreme Court's decisions regarding pure speech, Pickering v. Bd. of Ed., 391 U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983), and its political affiliation decisions in Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S. 507 (1980). The McBee court held that each public discharge case should “be considered on its particular facts, sifting through such factors and circumstances as the Connick Court outlined in order to strike the proper balance between the employee's speech and associational rights as citizen and the state's right as an employer to loyal and efficient service.” McBee, 730 F.2d at 1014.

         Under McBee, a court evaluating a First Amendment claim by a public employee should, in locating the claim on the spectrum of employee and employer interests, consider “to what degree the [employee's] participation in the election campaign or [her] actions involve ‘public concerns' and whether ‘close working relationships are essential to fulfilling [the employee's] public responsibilities.'” McBee, 730 F.2d at 1016 (quoting Connick, 461 U.S. at 151-52). The McBee court cautioned that “the ‘closeness' of a working relationship as it affects job performance” concerns more than the size of the office or the number of persons involved, but rather is a function of the particular public responsibility being carried out. Id. If the court finds close working relationships essential, “it must then determine whether the particular speech [and other conduct] sufficiently disrupted the working relationship as to prevent effective performance, requiring a stronger showing of disruption as the employee's speech moves closer to core ‘public concerns.'” Id. at 1017 (quoting Connick, 461 U.S. at 152). In determining the degree of the disruptive nature of the speech or conduct, the court should consider “the time, place, and manner of the political activity” and “whether, taken in ...

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