Beecham v. Henderson County, Tennessee

• Citation: 422 F.3d 372
• Decision Date: 09 September 2005
• Docket Number: No. 04-5845.,04-5845.
• Parties: June BEECHAM, Plaintiff-Appellant, v. HENDERSON COUNTY, TENNESSEE and Kenny Cavness, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

422 F.3d 372

June BEECHAM, Plaintiff-Appellant, v. HENDERSON COUNTY, TENNESSEE and Kenny Cavness, Defendants-Appellees.

No. 04-5845.

United States Court of Appeals, Sixth Circuit.

Argued: May 31, 2005.

Decided and Filed: September 9, 2005.

ARGUED: Justin S. Gilbert, the Gilbert Law Firm, Jackson, Tennessee, for Appellant. Brandon O. Gibson, Pentecost, Glenn & Rudd, Jackson, Tennessee, for Appellees. ON BRIEF: Justin S. Gilbert, Michael L. Russell, the Gilbert Law Firm, Jackson, Tennessee, for Appellant. Brandon O. Gibson, James I. Pentecost, Pentecost, Glenn & Rudd, Jackson, Tennessee, for Appellees.

Before: BOGGS, Chief Judge; GILMAN, Circuit Judge; CLELAND, District Judge.^*

OPINION

CLELAND, District Judge.

Plaintiff-Appellant June Beecham appeals the district court's July 2, 2004, order granting motions for summary judgment filed by Defendants-Appellees Henderson County, Tennessee, and Kenny Cavness. Plaintiff's complaint was brought under 42 U.S.C. § 1983, alleging retaliation for the exercise of her right to intimate association under the First Amendment. Plaintiff claimed that Defendants wrongfully terminated her at-will employment with the county because of her intimate association with one Steve Milam, which included an engagement to be married. Defendants responded that Plaintiff's relationship was "adulterous" and, under our decision in Marcum v. McWhorter, 308 F.3d 635 (6th Cir.2002), not entitled to First Amendment protection. The district court agreed with Defendants, granting them summary judgment. We affirm the judgment of the district court, although on different grounds.

I. Background

In October 2002, Steve Milam, an attorney practicing in Henderson County, proposed marriage to Plaintiff, who was a Deputy Clerk for the Circuit Court of Henderson County. Mr. Milam's overture was made while he was still married to (although living apart from) Patricia Leigh Milam.¹ Mrs. Milam was employed as the Clerk and Master of another Henderson County court, the Chancery Court, the offices of which were on the same floor in the courthouse as those of the Circuit Court Clerk for whom Plaintiff worked.

In view of these relationships, Defendant Kenny Cavness, the Circuit Court Clerk for Henderson County, consulted with Amy Halters, who was then the Henderson County Attorney. Cavness told Halters that he had decided to terminate Plaintiff's employment and that one of the reasons for his decision was the observation that Plaintiff's relationship with Mr. Milam was causing tension in the courthouse in general and in the Circuit Court Clerk's office in particular. Halter advised Cavness that he could terminate Plaintiff's at-will employment without violating any state or federal law. On April 30, 2003, Cavness terminated Plaintiff's employment.

II. Standard

We review the district court's grant of summary judgment de novo. Watkins v. Battle Creek, 273 F.3d 682, 685 (6th Cir.2001). Summary judgment should be granted when "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). Summary judgment is appropriate if a party who has the burden of proof at trial fails to make a showing sufficient to establish the existence of an element that is essential to that party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

III. Analysis

The district court reasoned that, because an intimate relationship between Milam and Beecham carried on during the pendency of Milam's marriage was adulterous, our decision in Marcum prohibited a finding that such a relationship enjoyed constitutional protection. The district court held that Plaintiff "is unable to establish the first element of her retaliation claim" because the "binding precedent of Marcum prevents a finding that . . . [P]laintiff engaged in conduct protected by the Constitution." As explained briefly below, we find the record of the Milam/Beecham romance unclear about the existence of a sexual intimate relationship, one of the predicates of adultery; this, in turn, forestalls the implications of Marcum. We affirm the district court, however, because Plaintiff's claim cannot survive rational-basis review. Abercrombie & Fitch Stores, Inc. v. American Eagle, 280 F.3d 619, 629 (6th Cir.2002) (because the court's de novo review involve[d] only the application of legal propositions to the undisputed facts in the record, the court could affirm on any grounds supported by the record even if different from the reasons of the district court); see also Holloway v. Brush, 220 F.3d 767, 772 (6th Cir.2000) (en banc) (citing Andrews v. Ohio, 104 F.3d 803, 808 (6th Cir.1997)).

A. Intimate Association, Adultery, and Marcum

The district court correctly noted that the right to "intimate association" is not limited to familial relationships but includes relationships characterized by "relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship." Roberts v. United States Jaycees, 468 U.S. 609, 620, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984); see also Anderson v. City of LaVergne, 371 F.3d 879, 881-82 (6th Cir.2004) (for summary judgment purposes, a dating relationship between a police officer and an administrative assistant for the police department qualified as an intimate association because the two were monogamous, had lived together, and were romantically and sexually involved); Akers v. McGinnis, 352 F.3d 1030, 1039-40 (6th Cir.2003) (personal friendship is protected as an intimate association). In Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 545, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987), the Court emphasized that protection is afforded to those relationships that "presuppose `deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life'" (citing Roberts, 468 U.S. at 619-20, 104 S.Ct. 3244).

In judging the character of the association involved in this case, the factors of smallness and exclusivity that are referenced in the case law noted above weigh in favor of Plaintiff's claim, at least when we take the evidence in the light most favorable to Plaintiff and set aside any issues involving Milam's marital status. According to Plaintiff, she and Milam were "deeply involved in a romantic relationship." Milam asked Plaintiff to marry him. The two discussed where they would live, looked for a home together, and discussed the intimate details of their lives, including raising children and the bond between husband and wife. They also planned how to merge their families, and decided whether to have additional children and whether Plaintiff's daughter would live with them.

A relationship between a married person and another to whom he or she is not married is "adulterous" if there is a sexually intimate component to the relationship. See Black's Law Dictionary (7th Ed.1999) (adultery is "voluntary sexual intercourse of a married person with a person other than the offender's husband or wife.") We held in Marcum that an adulterous intimate relationship does not fall within the purview of constitutional protection. Marcum, 308 F.3d at 643. Plaintiff notes that, before the district court's order was entered, the United States Supreme Court, in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), overruled Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), for too narrowly construing the scope of an intimate relationship. Plaintiff emphasized in her briefing "the fullness of the [parties'] relationship," while contending that Marcum cannot properly be applied because "an intimate relationship after Lawrence is not assessed by whether, in fact, Beecham had sexual relations with a legally separated, but not yet legally divorced partner." Plaintiff has pointed to the absence of actual evidence proving any sexual acts. Although we think that a reasonable inference of such intimacies might well be drawn by an ultimate finder of fact, we agree that the record is not one-sided on that issue. We see no specific admissions or deposition testimony in the record, for example, to support a finding that there was a sexual aspect to the relationship. We conclude that there remains a genuine issue of material fact whether Plaintiff's relationship with Mr. Milam was, in fact, "adulterous." While we are doubtful of Plaintiff's argument that our decision in Marcum was overruled by Lawrence, our application of rational basis review, ante, makes further discussion of the point unnecessary.

B. Rational-Basis Review

Assuming that Plaintiff's involvement in a "romantic relationship" with Milam was of the species that avoided sexual relations, we will also assume that it constituted a protected form of intimate association. The question then becomes what level of scrutiny we must apply.

Government action that has a "direct and substantial influence" on intimate association receives heightened review. Anderson, 371 F.3d at 882. Government action is deemed to have "`direct and substantial' burdens on intimate association `only where a large portion of those affected by the rule are absolutely or largely prevented from [forming intimate associations], or where those affected by the rule are absolutely or largely prevented from [forming intimate associations] with a large portion of the otherwise eligible population of [people with whom they could form intimate associations].'" Id. See also Vaughn v. Lawrenceburg Power System, 269 F.3d 703, 710 (6th Cir.2001) ("direct and substantial" interference results "only where a large portion of...