483 F.Supp. 608 (D.Minn. 1980), Civ. 4-78-327, Johnson v. Cushing

Docket Nº:Civ. 4-78-327
Citation:483 F.Supp. 608
Party Name:Johnson v. Cushing
Case Date:January 17, 1980
Court:United States District Courts, 8th Circuit, District of Minnesota

Page 608

483 F.Supp. 608 (D.Minn. 1980)

Donald W. JOHNSON, Plaintiff,


Emmet J. CUSHING and the Minnesota Department of Economic Security, Defendants.

Civ. No. 4-78-327.

United States District Court, D. Minnesota, Fourth Division.

Jan. 17, 1980

Page 609

Gordon C. Moosbrugger, Moosbrugger & Murray, St. Paul, Minn., for plaintiff.

Frank W. Levin and Barbara Lindsey Sims, Sp. Asst. Attys. Gen., St. Paul, Minn., for defendants.


MILES W. LORD, District Judge.


Donald Johnson was a field auditor for the Minnesota Department of Economic Security. In May of 1976, Johnson informed his supervisor that he was considering becoming a candidate for the Minnesota House of Representatives. His supervisor responded to plaintiff in a memo stating

Page 610

that a leave of absence to run for political office could not be granted. On July 7, 1976, plaintiff submitted a written request for a leave of absence without pay and at the same time filed an affidavit of candidacy. Plaintiff subsequently was sent two letters from Department officials denying his request for a leave of absence to run for a partisan political office.

Plaintiff did not report for work from July 7 to August 3. During this time he was actively campaigning for nomination in his district race. On July 20, plaintiff was sent a letter by the department's personnel director informing him that, because his leave was unauthorized, if he did not return to work by July 23, the department would assume he had resigned. Plaintiff was notified subsequently of the department's intention to dismiss him. On August 24, 1976, plaintiff was informed of his dismissal from employment.

Plaintiff lost the primary and requested reinstatement at the department. His request was denied. On appeal to the Minnesota Personnel Board, the Board ordered that plaintiff be reinstated to his position on January 13, 1977, but without back pay.

Plaintiff has brought this suit for back pay and damages under 42 U.S.C. s 1983 against the Department of Economic Security and the Commissioner of the Department, Emmet J. Cushing.

Defendants filed a motion for summary judgment alleging:

(1) plaintiff has failed to state a claim upon which relief can be granted;

(2) the Eleventh Amendment to the United States Constitution bars plaintiff's cause of action against defendants; and defendant Cushing's actions constitute a good faith reasonable exercise of administrative discretion and as a matter of law cannot be held to violate s 1983; and

(3) plaintiff's claims are estopped as untimely.


The standard by which defendants' motion is to be judged is stated in Pfizer, Inc. v. International Rectifier Corp., 538 F.2d 180 (8th Cir. 1976). In deciding on a motion for summary judgment, the court articulated the following standard:

To obtain a summary judgment, the movant must demonstrate the absence of any genuine issue of material fact and the evidence submitted to the court "must be viewed in the light most favorable to the opposing party."

538 F.2d at 184.

It is under this standard that the Court addresses defendants' motion.

(1) Plaintiff States a Claim Under 42 U.S.C. s 1983 For Which Relief Can Be Granted

Defendants present the question of whether plaintiff's cause of action fails because it does not state a claim upon which relief can be granted. It appears that plaintiff's cause of action is brought under 42 U.S.C. s 1983 (1976). 1 This section states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.


Case law has established several elements necessary for a suit under s 1983: (1) the defendants must act under color of state law; 2 (2) defendants' actions must be

Page 611

intentional; 3 and (3) the defendants' actions must cause the deprivation of plaintiff's rights. 4

A defendant in a suit under s 1983 acts "under color of state law" when he acts within the authority of his office. 5 Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Defendant Cushing was acting pursuant to the authority given him by Minn.Stat. s 268.12; this statute established the Department and granted powers to the Commissioner.

The second element necessary under s 1983 is that the defendants act intentionally. The Court finds that this element has been satisfied in the instant case.

The third element requires that defendants' actions cause the deprivation of plaintiff's rights. In the instant case, the causal link between the defendants' acts and plaintiff's deprivation is obvious.

Defendants argue that the Hatch Act, 5 U.S.C. s 1501 (1976), effectively prohibits plaintiff from running for any partisan political office, and that it applies to federal employees and to state and local officers or employees "whose principal employment is in connection with an activity which is financed in whole or in part by loans or grants made by the United States or a Federal agency." 5 U.S.C. s 1501(4) (1976). The Minnesota Department of Economic Security receives part of its support from the federal government and, therefore, the Act would seem to apply.

This Court determines that the Hatch Act, while it applies to persons presently employed by the State Department of Economic Security, does not apply to persons who have been granted leaves of absence, or who have a statutory right to secure upon demand leaves of absence from the Department for the purpose of running for partisan political office.

Defendants further argue that plaintiff had no right to a leave of absence from his job. Defendants reason that Minn.Stat. s 268.12 Subd. 5(2) controls on this issue, and that this section does not provide for leaves of absence. At the time of the alleged deprivation, the operative language of Minn.Stat. s 268.12 Subd. 5(2) provided:

No officer or employee engaged in the administration of these sections shall use his official authority to influence for the purpose of interfering with an election or affecting the results thereof. No person engaged in the administration of these sections who holds a position in the state classified service pursuant to provisions contained in the state civil service act, while retaining the right to vote as he pleases and to express privately his opinion on all political subjects, shall take an active part in political management or campaigns . . . . 6

However, Minnesota also has a state-wide civil service system, and plaintiff is regulated by that civil service system. Employees in Minnesota's executive branch are governed by the state-wide civil service program outlined in Chapter 43 of the Minnesota Statutes and the Rules enacted pursuant to Chapter 43. Minn.Stat. s 43.28 specifically provides for leaves of absence for classified state employees subject to the state-wide civil service code. At the time this controversy arose, s 43.28 provided in pertinent part:

Except as herein provided, any officer or employee in the state classified service shall:

Page 612

(3) Upon his request, be granted leave of absence upon becoming a candidate, or during the course of such candidacy, for any elected public office;


To continue reading