Shockency v. Ramsey County

• Decision Date: 12 July 2007
• Docket Number: No. 06-3094.,06-3094.
• Parties: Joyce M. SHOCKENCY; John H. Moore, Plaintiffs-Appellees, v. RAMSEY COUNTY, a Minnesota municipal corporation; Robert Fletcher, Ramsey County Sheriff, in his official and individual capacity; Nicholas O'Hara, in his official and individual capacity, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

493 F.3d 941

Joyce M. SHOCKENCY; John H. Moore, Plaintiffs-Appellees, v. RAMSEY COUNTY, a Minnesota municipal corporation; Robert Fletcher, Ramsey County Sheriff, in his official and individual capacity; Nicholas O'Hara, in his official and individual capacity, Defendants-Appellants.

No. 06-3094.

United States Court of Appeals, Eighth Circuit.

Submitted: March 12, 2007.

Filed: July 12, 2007.

Counsel who presented argument on behalf of the appellant was Carl David Dietz, St. Paul, MN.

Counsel who presented argument on behalf of the appellee was James H. Kaster, Minneapolis, MN. Also appearing on the brief was Nicholas G.B. May, Hastings, MN.

Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

John H. Moore and Joyce M. Shockency brought this § 1983 action against Ramsey County, Sheriff Robert Fletcher, and Inspector Nicholas O'Hara, alleging violations of their First and Fourteenth Amendment rights by retaliatory employment actions after Moore ran against Fletcher in the 2002 election and Shockency supported him. The district court denied defendants' motion for summary judgment. Fletcher and O'Hara appeal from the order denying them qualified immunity; the county also seeks to appeal. We affirm as to Fletcher, reverse as to O'Hara, and dismiss the county's appeal for lack of jurisdiction.

I.

In reviewing an order denying qualified immunity, we "view the facts and draw reasonable inferences in the light most favorable to the nonmoving part[ies]." Scott v. Harris, ___ U.S. ___, 127 S.Ct. 1769, 1774, 167 L.Ed.2d 686 (2007) (internal quotations omitted). John H. Moore and Joyce M. Shockency were employed as officers in the Ramsey County Sheriff's Department. In June 2001 Moore told coworkers that he intended to run against Sheriff Robert Fletcher in the fall election. Fletcher informed Moore in July 2001 that he was being transferred out of his position as patrol lieutenant and would then be supervised by Nicholas O'Hara, who was a political supporter and friend of the sheriff. After Shockency publicly supported Moore's campaign, she was transferred from her position as sergeant in charge of the midnight patrol shift to a position in the transportation unit with significantly less responsibility. She was also replaced as manager of the field training program.

Moore was hired as a deputy sheriff for Ramsey County in 1981 and was promoted twice, attaining the rank of lieutenant and eventually commanding the entire patrol division. In the latter position he supervised 80 employees and held the highest job available for his rank. He supervised several units, communicated department policy to the public, developed enforcement strategies for community policing, assisted with budget preparation, and composed strategy for long range improvements of the uniformed patrol division.

In July 2001 Moore told coworker Dennis Flaherty about his decision to run for sheriff. Flaherty was a supporter of the sheriff. Ten days after Moore's conversation with Flaherty, Sheriff Fletcher told him he was being transferred out of the patrol division to lead the apprehension division and that thereafter he would work under the supervision of Inspector Nicholas O'Hara. Fletcher also said, "By the way, I spoke to Flaherty." From the sheriff's reference to his conversation with Flaherty, Moore understood that he was being transferred because of his campaign for sheriff. Fletcher told him that his transfer was due to communication problems with his supervisor, Undersheriff George Altendorfer, but Moore had never before heard anything about any communication problem.

Although Moore remained a lieutenant and retained his basic pay and benefits after his transfer, he claims he lost overtime pay and access to a take home vehicle. In January 2002 Fletcher took away his responsibility for leading the apprehension division and Moore began working with a partner from the unit. In September 2002 Moore was assigned to be O'Hara's executive assistant and was given only administrative duties. The parties contest who was responsible for this decision. Moore was the only lieutenant to have served in the apprehension division, and no other lieutenant was assigned to replace him when he was moved.

O'Hara and Moore did not get along from the beginning of Moore's transfer to apprehension. O'Hara criticized Moore for routine actions that were normally not subject to discipline. He gave Moore dangerous assignments, such as requiring him "per the sheriff" to execute search warrants alone. He gave Moore inconsistent orders and then disciplined him for not following some aspect of the orders. In August 2002 O'Hara began requiring Moore and his partner to keep daily logs indicating what they were doing during the day, even though it was not a step in the disciplinary procedure and no other officers had been required to do so. After Moore was assigned to serve as his executive assistant in September 2002, O'Hara told him that he should not leave the office except for noon lunch. Sheriff Fletcher won reelection in November 2002.

Joyce M. Shockency was hired as a dispatcher in 1977. She was promoted to deputy sheriff in 1989 and to sergeant six years later. In January 1999 Shockency requested a transfer to the patrol division where she was put in charge of the midnight shift. As the senior officer on duty she communicated with the afternoon and morning shifts to resolve all outstanding issues, reviewed all calls and reports, helped officers prepare for the night shift, processed outgoing mail, worked with dispatch on paperwork, and monitored deputies in the street by radio. She was also responsible for coordinating all first responders in times of emergency, coordinating with surrounding departments, and deciding when it was necessary to contact supervisors. In addition she developed and implemented the field training officer program, a "substantial responsibility." Shockency did not have any disciplinary problems.

Fletcher saw Shockency exhibit her support for Moore's candidacy by marching in a community parade and displaying one of his campaign buttons on her purse. In the summer of 2002 deputy Don Rindal told his colleague Rick Werdien that Shockency would be removed from her position after the election and that he hoped to receive better assignments because of his support for Sheriff Fletcher. Werdien told Shockency about this conversation in the winter of 2002. Fletcher transferred her to the midnight transportation unit in January 2003. That post was in a less active unit which only afforded her the opportunity to do deputy level work even though she had been serving as a sergeant. She was not allowed to arrest anyone, make a traffic stop, or assist other officers with law enforcement activities. Her responsibility for the field training officer program was also taken away, she only supervised one person per shift, and she kept herself busy by filling the day shift cars with gas. At the time of her transfer she was told that she was being reassigned because of reorganization priorities and budget cuts.

Moore and Shockency sued under 42 U.S.C. § 1983, claiming Sheriff Fletcher and Ramsey County violated their First Amendment rights to free speech and association by transferring them out of their positions and causing them to lose overtime pay and access to take home vehicles because of their campaign activities. Moore also brought First Amendment claims against Inspector O'Hara, alleging that O'Hara demoted him to an executive assistant and improperly disciplined him because of his campaign. Plaintiffs also alleged that defendants violated their equal protection and due process rights by treating their speech differently than that of other employees and caused them to lose their property rights in their prior jobs by the transfers.

In his deposition, Sheriff Fletcher testified that Moore was transferred due to communication problems and Shockency because of reorganization and budget changes. He added that politics should have no place in employment decisions and that the transfers were not made for political reasons. He affirmed that Shockency had never had any disciplinary problems and that her performance had been consistently good and at times exceptional. The sheriff's chief deputy, David Metusalem, testified that Moore and Shockency were not part of Fletcher's management team which consisted of himself, the undersheriffs, and the department's planning and policy director. Moore and Shockency were never invited to participate in management meetings.

Sheriff Fletcher, O'Hara, and the county moved for summary judgment. They argued that Moore and Shockency held policymaking positions which Sheriff Fletcher was entitled to fill with officers loyal to him so the transfers did not violate any constitutional rights and that all claims should be dismissed on the merits. Fletcher and O'Hara argued in the alternative that they were entitled to qualified immunity on the First Amendment claims because it was not clearly established that Moore and Shockency could not be transferred for political patronage reasons. O'Hara claimed in addition that he was not responsible for Moore's transfers and it was not clearly established that any other disciplinary action he took toward Moore was an adverse employment action.

The district court ruled in favor of the defendants on one claim only. It concluded that plaintiffs had not shown infringement of a protected property right by the alleged adverse employment actions. They had not been terminated, and their rank and pay had not been adversely impacted. Their due process claims were therefore dismissed. The court denied summary judgment on the equal protection claims.¹ It concluded that plaintiffs had made a prima facie showing that defendants had treated them differently from other employees who had exercised free speech rights and defendants had not rebutted that showing or...