Rose v. Stephens

• Decision Date: 03 June 2002
• Docket Number: No. 00-6542.,00-6542.
• Citation: 291 F.3d 917
• Parties: Gary W. ROSE, Plaintiff-Appellant, v. Robert F. STEPHENS, individually and in his official capacity as Secretary of the Justice Cabinet, Commonwealth of Kentucky, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

291 F.3d 917

Gary W. ROSE, Plaintiff-Appellant, v. Robert F. STEPHENS, individually and in his official capacity as Secretary of the Justice Cabinet, Commonwealth of Kentucky, Defendant-Appellee.

No. 00-6542.

United States Court of Appeals, Sixth Circuit.

Argued March 21, 2002.

Decided and Filed June 3, 2002.

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Bernard Pafunda (argued and briefed), Pafunda Law Offices, Lexington, KY, for Plaintiff-Appellant.

Sheryl G. Snyder (argued and briefed), David L. Hoskins (briefed), Frost, Brown & Todd, Louisville, KY, for Defendant-Appellee.

Before NORRIS, SILER, and GILMAN, Circuit Judges.

OPINION

ALAN E. NORRIS, Circuit Judge.

Plaintiff Gary W. Rose appeals the district court's grant of summary judgment for defendant Robert F. Stephens in this 42 U.S.C. § 1983 action. Plaintiff argues that his termination from the position of Commissioner of the Kentucky State Police violates the First Amendment of the United States Constitution and the Kentucky Whistleblower Act, K.R.S. Chapter 61. For the reasons discussed below, we affirm the district court's grant of summary judgment for defendant.

I.

Plaintiff was appointed to the position of Commissioner of the Kentucky State Police in 1995 and was employed in this position until August 1999 when he was terminated by defendant, the Secretary of Kentucky's Justice Cabinet. Plaintiff's termination resulted from a dispute between himself and defendant over his refusal to withdraw a memorandum which he had submitted to defendant and the governor of Kentucky announcing his decision to eliminate Pat Simpson's position as deputy police commissioner. Simpson was promoted to the position of deputy commissioner by plaintiff at the request of the governor in 1997.

The memorandum contains a lengthy description of disruptive and inefficient actions taken by Simpson and announces plaintiff's decision to abolish the position of deputy commissioner and reassign Simpson to a lower ranking position as a result of his conduct. The memorandum includes allegations that Simpson interfered with hiring and disciplinary decisions; that he authorized unnecessary and wasteful equipment purchases; that he requested unnecessary transfers of personnel; and that he spread rumors that the governor intended to fire plaintiff and another officer.

In his deposition plaintiff acknowledged that he wrote the memorandum in his official capacity as commissioner, and that he included the detailed allegations against Simpson primarily as background information to support his decision to eliminate Simpson's position. Furthermore, plaintiff stated that the "operative paragraph" of the memorandum was on page three where he stated his intention to eliminate Simpson's position.

Plaintiff filed suit against defendant, the Justice Cabinet, and the Commonwealth of Kentucky alleging that his discharge violated 42 U.S.C. § 1983 and 42 U.S.C. § 1985, as well as provisions of the Kentucky Whistleblower Act. The district court granted defendants' motion to dismiss with respect to plaintiff's § 1985 claims, finding that plaintiff failed to state a claim under that statute. The court also dismissed most of plaintiff's § 1983 claims against defendants in their official capacities because those claims were barred by the Eleventh Amendment. Finally, the court refused to exercise supplemental jurisdiction over plaintiff's state law claim because the state statute did not waive the state's sovereign immunity from suit in federal court. As a result, plaintiff's only remaining claims were the § 1983 claims against defendant for injunctive relief in defendant's official capacity and for monetary and injunctive relief in defendant's individual capacity.

Defendant moved for summary judgment on plaintiff's remaining claims, arguing that the memorandum was not protected speech under the First Amendment. The district court granted summary judgment for defendant, finding that the memorandum was not entitled to First Amendment protection because it did not address a matter of public concern. Plaintiff appeals both the court's grant of summary judgment with respect to his § 1983 claims and the court's refusal to exercise supplemental jurisdiction over his state law claim.

II.

We review a district court's grant of summary judgment de novo. See United Nat'l Ins. Co. v. SST Fitness Corp., 182 F.3d 447, 449 (6th Cir.1999). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

A. Analytical Framework of the First Amendment Claim

In Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), the Supreme Court established a two-part inquiry for determining when the discharge of a public employee violates the First Amendment. The threshold question is whether the employee's "speech may be fairly characterized as constituting speech on a matter of public concern." Dambrot v. Central Michigan Univ., 55 F.3d 1177, 1186 (6th Cir.1995) (internal citations and quotations omitted). If the speech relates to a matter of public concern, then the court employs the balancing test outlined in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), to determine if the employee's free speech interests outweigh the efficiency interests of the government as an employer. Dambrot, 55 F.3d at 1186.

The district court found that the memorandum in this case did not relate to a matter of public concern, and, therefore, did not reach the second step of this analysis. The court based its determination on three factors: (1) the memorandum did not allege any illegal activity; (2) plaintiff never attempted to make the allegations public; and (3) most of the allegations concerned decisions made prior to the time when the conflict between plaintiff and Simpson arose. We do not express an opinion on whether the district court correctly determined that the memorandum did not address a matter of public concern, because, as explained below, in the situation presented by this case the Pickering balance favors the government as a matter of law.

In Connick the Court fashioned a framework for protecting the principle that the government "cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression," 461 U.S. at 142, 103 S.Ct. 1684, while still permitting the government some leeway when it acts in its role as an employer to operate an efficient workplace. In a separate line of cases dealing with the First Amendment rights of public employees, the Court also has recognized that the government has a separate but related interest in securing employees who will loyally implement the policies of its democratically elected officials. Elrod v. Burns, 427 U.S. 347, 367, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (stating that the politically loyal employees are necessary "to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate."). Although the Court determined that political patronage dismissals normally violate the First Amendment in this line of cases, it also created the exception that termination of public employees in policymaking or confidential positions may be based solely on their political affiliation without violating the First Amendment. Id.; Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980).

The Court has not addressed the question of whether the Elrod/Branti exception applies to the situation where a policymaking or confidential employee is discharged on the basis of actual speech rather than political affiliation.¹ The question is also one of first impression in this circuit. We hold that the exception does apply in this situation and adopt the rule that, where a confidential or policymaking public employee is discharged on the basis of speech related to his political or policy views, the Pickering balance favors the government as a matter of law.

Three distinct approaches have emerged among the federal courts of appeal that have addressed the question of how to deal with situations where both the Connick and Elrod/Branti lines of cases potentially apply. The first approach, which has been adopted by the Second Circuit, limits the application of the Elrod/Branti exception to employment decisions that are based solely on political affiliation. See Lewis v. Cowen, 165 F.3d 154, 162 (2d Cir.1999). While the Second Circuit has recognized that the government's interest in terminating an employee necessarily increases where that employee is a policymaker, and, therefore, that the Pickering balance begins to favor the government, it has rejected the application of the policymaking exception where the termination is based on speech rather than political affiliation. McEvoy v. Spencer, 124 F.3d 92, 103 (2d Cir.1997).

The second approach, which is taken by the First, Seventh, and Tenth Circuits, applies the exception in situations where the employee's speech relates to either his political affiliation or substantive policy views. Barker v. City of Del City, 215 F.3d 1134, 1139 (10th Cir.2000); Bonds v. Milwaukee County, 207 F.3d 969, 979 (7th Cir.2000); Flynn v. City of Boston, 140 F.3d 42, 47 (1st Cir.1998). This approach recognizes the inherent inconsistency in a rule that protects a policymaking employee who overtly expresses his disloyalty while denying that same protection to one who merely belongs to a different political party. See, e.g., Vargas-Harrison v. Racine Unified Sch. Dist., 272 F.3d 964, 971-72 (7th Cir.2001) (stating that it would be a "strange rule" that protects actual attacks by policymaking employees but not mere...