Simasko v. County of St. Clair

Decision Date03 August 2005
Docket NumberNo. 04-2292.,04-2292.
Citation417 F.3d 559
PartiesSteven L. SIMASKO, Plaintiff-Appellee, v. COUNTY OF ST. CLAIR, a Municipal Corporation, Defendant, Peter R. George, individually and in his official capacity as St. Clair County Prosecutor; Mary Roy Kelly, jointly and severally, Defendants-Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: William L. Fealko, Fletcher Clark Tomlinson Fealko & Monaghan, P.C., Port Huron, Michigan, for Appellants. Kathleen L. Bogas, Eisenberg & Bogas, P.C., Bloomfield Hills, Michigan, for Appellee. ON BRIEF: William L. Fealko, Gary A. Fletcher, Fletcher Clark Tomlinson Fealko & Monaghan, P.C., Port Huron, Michigan, for Appellants. Kathleen L. Bogas, Eisenberg & Bogas, P.C., Bloomfield Hills, Michigan, for Appellee.

Before: BOGGS, Chief Judge; RYAN and ROGERS, Circuit Judges.

ROGERS, Circuit Judge.

The defendants appeal the district court's denial of their motion for summary judgment based on a defense of qualified immunity in this 42 U.S.C. § 1983 action. Because the defendants' actions in this case did not violate the Constitution, the denial of summary judgment is reversed.

I. Background

The plaintiff, Steven Simasko, worked for eighteen years as an assistant prosecutor for St. Clair County, Michigan. During all times relevant to this case, defendant Peter George was the county attorney for St. Clair County and defendant Mary Kelly was the chief assistant prosecutor, appointed by Peter George. As the chief assistant prosecutor, Kelly was Simasko's co-worker and immediate supervisor.

In 2002, Simasko and Kelly both announced their intention to run for a judicial vacancy in the 72nd Michigan Judicial District Court in St. Clair County. George supported Kelly in the race. After the primary, Kelly was one of the top-two vote getters, while Simasko was not. Upon learning of Simasko's defeat, Kelly telephoned Simasko and asked if he would publicly support her in the election. Kelly testified that Simasko answered "something to the effect he didn't have a dog in the race, he was just tired and he just needed to sit back and not do anything." Kelly asked Simasko for his support a second time, this time at the office. During this second solicitation, Kelly informed Simasko that she was displeased with his brother's support of her opponent in the election. Simasko claims that Kelly told him that if his brother continued to support her opponent, she would expect Simasko to support her campaign publicly. Simasko also claims that Kelly asked "does he [Simasko's brother] realize what's going to happen to his practice?" Simasko's brother is an attorney with a local practice in St. Clair County. In response, Simasko again told Kelly that he did not wish to support either candidate in the race. As Kelly left Simasko's office, Simasko claims that Kelly told him "this won't be a nice place for you to work."

Simasko was later approached by another co-worker, Senior Assistant Prosecutor Joe McCarthy, about the Kelly campaign. McCarthy allegedly told Simasko that he needed to curtail his brother's support of Kelly's campaign, reminded Simasko that Kelly was his supervisor, and asked whether Simasko's brother knew the ramifications of his actions. Simasko again reiterated that he did not wish to take a position in the election.

In November of 2002, Kelly learned that she had lost the election for district court judge to her opponent. After learning of this loss, Kelly told a group of people that "that fucking Simasko is done."

On December 4, 2002, Simasko met with Kelly and George, the County Attorney, for an annual performance evaluation. Simasko claims that this was the first occasion in his eighteen years of working at the office that he had been subjected to a substantive performance evaluation. During the evaluation, George and Kelly complained that they were unhappy with Simasko's performance on several cases that year.1 Soon thereafter, Simasko was told by George that he was "strongly considering" demoting him and decreasing his salary by approximately $20,000. Simasko claims that, after learning of the possible demotion, he wrote to George and informed him that, should George decide to go through with the demotion, Simasko would treat the action as a constructive discharge pursuant to a collective bargaining agreement between the parties. In response, George informed Simasko that he did intend to go through with the demotion. Simasko then wrote a second letter to George, again stating that Simasko found the pay decrease to be unacceptable and that he was treating the action as a constructive discharge. Simasko subsequently resigned from his position with the county.

After resigning from his position, Simasko brought suit pursuant to 42 U.S.C. § 1983, alleging that he was constructively discharged in retaliation for the exercise of his First Amendment rights of free speech and association. The defendants claim that they were entitled to fire Simasko based upon his refusal to participate in Kelly's campaign because Simasko is a policymaking employee subject to the Elrod/Branti exception, which allows public employees in policymaking positions to be fired for their political or policy views without violating the First Amendment. See Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). The district court, however, found that the Elrod/Branti exception did not apply "in this particular case, to this particular plaintiff" because Simasko did not engage in "any overt speech or political activity," but rather simply refused to act or support a particular candidate. The district court accordingly denied the defendants' motion for summary judgment based on a defense of qualified immunity.

II. Analysis

The defendants' actions leading to Simasko's termination did not violate the Constitution; thus, the defendants are entitled to qualified immunity and the denial of summary judgment is reversed.

The doctrine of qualified immunity protects government officials who perform discretionary functions from civil liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A denial of summary judgment based on a determination that the defendant is not entitled to qualified immunity may be reviewed on interlocutory appeal. Solomon v. Auburn Hills Police Dept., 389 F.3d 167, 172 (6th Cir.2004). Because the availability of qualified immunity is a legal question, the decision of the district court is reviewed de novo. Id. (citation omitted). "[T]o the extent that there is disagreement about the facts . . . we must review the evidence in the light most favorable to the Plaintiffs, taking all inferences in their favor." Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir.2004).

In determining whether a grant of qualified immunity is proper, we determine first whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). In this case, the defendants' actions did not violate the Constitution, and accordingly we need not reach the remaining elements of the test for qualified immunity.

Simasko was allegedly fired for refusing to support the campaign of his supervisor for a district court judgeship, and for refusing to try to curtail his brother's public support of his supervisor's opponent in the election. Because Simasko's job as an assistant county attorney qualified as a policymaking position subject to the Elrod/Branti exception, he could be fired for his political or policy views without violating the First Amendment. Accordingly, the defendants are entitled to qualified immunity.

A. Simasko's Decision to Remain Neutral in the Campaign

The defendants' constructive discharge of Simasko based on his decision to remain neutral in Kelly's campaign for judge, however misguided and vindictive that action may have been, did not violate the Constitution. While the First Amendment prohibits the politically-motivated dismissal of many governmental employees, the Supreme Court recognized in Elrod, 427 U.S. at 367-68, 96 S.Ct. 2673 (1976) (plurality opinion), and in Branti, 445 U.S. at 517-18, 100 S.Ct. 1287 (1980), that public employees in "policymaking or confidential positions" may be terminated for politically-motivated reasons without violating the First Amendment. The Elrod/Branti exception applies not only to discharges based on political affiliation, but also to terminations based on actual speech. See Rose v. Stephens, 291 F.3d 917, 921 (6th Cir.2002). Furthermore, the Elrod/Branti exception has been interpreted to permit a hiring authority to terminate a policymaking or confidential employee based on "political differences of any kind." Williams v. City of River Rouge, 909 F.2d 151, 153 n. 4 (6th Cir. 1990).

In this case, Simasko was employed in a policymaking or confidential position. In Branti, the Court elaborated on the "policymaking or confidential" requirement, stating 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 is an appropriate requirement for the effective performance of the public office involved." 445 U.S. at 518, 100 S.Ct. 1287. In Monks v. Marlinga, 923 F.2d 423, 426 (6th Cir.1991), we held that an assistant county prosecutor is properly considered a policymaking or confidential employee under Michigan law and that political affiliation is an appropriate consideration in the discharge of such an employee.

Simasko argues that his...

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  • Marsilio v. Vigluicci
    • United States
    • U.S. District Court — Northern District of Ohio
    • February 14, 2013
    ...because of actual speech related his political or policy views, rather than for political affiliation alone); see also, Simasko v. Cnty. of St. Clair, 417 F.3d 559 562–63 (6th Cir.2005) (no constitutional violation under Elrod / Branti exception where public employer terminated employee i......
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    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • October 17, 2017
    ...under Elrod and Branti , we join a unanimous chorus of courts of appeals to have considered the issue.1 See Simasko v. County of St. Clair , 417 F.3d 559, 563 (6th Cir. 2005) ; Aucoin v. Haney , 306 F.3d 268, 276 (5th Cir. 2002) ; Fazio v. City and County of San Francisco , 125 F.3d 1328, 1......
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    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • February 1, 2021
    ...Circuits in holding that intimate association claims can be subjected to Elrod / Branti analysis. See, e.g. , Simasko v. Cnty. of St. Clair , 417 F.3d 559 (6th Cir. 2005) ; McCabe v. Sharrett , 12 F.3d 1558, 1572 (11th Cir. 1994) ; Soderbeck v. Burnett Cnty. , 752 F.2d 285 (7th Cir. 1985) (......
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    • U.S. Court of Appeals — Fifth Circuit
    • May 18, 2021
    ...employment in connection with a political dispute that disrupted Tarrant County family court operations. See Simasko v. Cnty. of St. Clair, 417 F.3d 559, 562-63 (6th Cir. 2005) (holding that a confidential employee may lawfully be terminated for remaining neutral in his supervisor's campaig......
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1 books & journal articles
  • Constitutional violations (42 U.S.C. §1983)
    • United States
    • James Publishing Practical Law Books Federal Employment Jury Instructions - Volume I
    • April 30, 2014
    ...in district court judgeship campaign did not violate the First Amendment right to freedom of association. Simasko v. County of St. Clair , 417 F.3d 559 (6th Cir. 2005). For political patronage dismissal to be consistent with First Amendment, public employer must demonstrate that certain pol......

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