Alexander v. Holden

• Citation: 66 F.3d 62
• Decision Date: 04 October 1995
• Docket Number: No. 94-1810,94-1810
• Parties: 68 Fair Empl.Prac.Cas. (BNA) 1738, 66 Empl. Prac. Dec. P 43,738 Regina ALEXANDER, Plaintiff-Appellant, v. Kelly HOLDEN, Individually; Donald Shaw, Individually and in his official capacity as Brunswick County Commissioner; Jerry Jones, Individually and in his official capacity as Brunswick County Commissioner; Wayland Vereen, in his official capacity as Brunswick County Commissioner; Don Warren, in his official capacity as Brunswick County Commissioner; Tom Rabon, Sr., in his official capacity as Brunswick County Commissioner; Brunswick County, Defendants-Appellees. North Carolina Academy of Trial Lawyers, Amicus Curiae.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 62

66 F.3d 62

68 Fair Empl.Prac.Cas. (BNA) 1738,

66 Empl. Prac. Dec. P 43,738

Regina ALEXANDER, Plaintiff-Appellant, v. Kelly HOLDEN, Individually; Donald Shaw, Individually and in his official capacity as Brunswick County Commissioner Jerry Jones, Individually and in his official capacity as Brunswick County Commissioner; Wayland Vereen, in his official capacity as Brunswick County Commissioner; Don Warren, in his official capacity as Brunswick County Commissioner; Tom Rabon, Sr., in his official capacity as Brunswick County Commissioner; Brunswick County Defendants-Appellees North Carolina Academy of Trial Lawyers, Amicus Curiae.

No. 94-1810.

United States Court of Appeals Fourth Circuit.

Argued Dec. 6, 1994.

Decided Oct. 4, 1995.

ARGUED: Martha Anne Geer, Patterson, Harkavy & Lawrence, Raleigh, North Carolina, for Appellant. Reginald B. Gillespie, Jr., Faison & Fletcher, Durham, North Carolina, for Appellees. ON BRIEF: O. William Faison, Michael R. Ortiz, Keith D. Burns, Faison & Fletcher, Durham, North Carolina, for Appellees. Thomas M. Stern, Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A., Chapel Hill, North Carolina, for Amicus Curiae.

Before ERVIN, Chief Judge, MICHAEL, Circuit Judge, and MESSITTE, United States District Judge for the District of Maryland, sitting by designation.

Reversed and remanded by published opinion. Chief Judge ERVIN wrote the opinion, in which Judge MICHAEL and Judge MESSITTE joined.

OPINION

ERVIN, Chief Judge:

The plaintiff, Regina Alexander, filed this action under 42 U.S.C. Secs. 1981 and 1983, and North Carolina common law, alleging that Brunswick County and its commissioners discriminated against her based on her race and political affiliation and activities. The district court granted summary judgment in favor of the defendants, finding that they were entitled to legislative immunity, and dismissed plaintiff's federal claims. The court then declined to exercise supplemental pendent jurisdiction over the state claims and dismissed those without prejudice. Because we find that the actions of the County and the commissioners did not involve prospective, legislative-type decisions, and hence were administrative actions, we reverse the district court's grant of summary judgment on the basis that neither the County nor the commissioners are entitled to legislative immunity.

I.

Regina Alexander, a Democrat and an African-American, was hired by Brunswick County in 1975 as the secretary to the County Planner. The following year, she was promoted to the combined position of clerk to the Board of Commissioners and secretary to the County Manager. In 1980, she became the full-time clerk. Over the next ten years, the Board retained her as clerk after each election of county commissioners. ¹

The Board of Commissioners consists of five commissioners, and the political composition of the Board has varied widely throughout the years. After the November 1990 election, newly elected commissioners Jerry Jones and Donald Shaw joined commissioner Kelly Holden on the Board to form a Republican majority. In December 1990, Jones successfully moved to postpone the reappointment of Alexander as Clerk. Jones claimed that he wanted to get to know Alexander, and Holden said that he wanted to see if Alexander could establish a good working relationship with the new commissioners. According to Alexander, Holden had previously stated that he did not want a black clerk appointed to the Board and that the Board needed to remove Alexander because of her political affiliation. After her reappointment was tabled, Alexander stated that Holden, Shaw, and Jones refused to work or communicate with her.

On June 17, 1991, Holden, Shaw, and Jones voted to eliminate the salary of the Clerk to the Board. Democratic commissioners Pinkerton and Rabon voted against the motion. The deputy clerk's position, however, was retained and the salary for it increased. Holden, Shaw, and Jones also voted to appoint the County Manager's Secretary as Clerk, essentially creating a new joint position of Clerk to the Board and Secretary to the County Manager. Kelly Barefoot, then Secretary to the County Manager, was asked to fill this new position. Barefoot is a white female whose family includes several prominent Republicans. Barefoot notified the commissioners that she could not fulfill the combined responsibilities without additional administrative help. In response, a new administrative assistant position was created. Subsequently, the administrative assistant became secretary to the County Manager and Ms. Barefoot essentially became a full-time clerk to the Board. The County Manager was never consulted, nor did he have any role in these decisions.

On January 20, 1993, Alexander brought suit against Holden, in his individual capacity; Shaw and Jones, in their individual and official capacities as County Commissioners; Wayland Vereen, Don Warren, and Tom Rabon, Sr., in their official capacities as County Commissioners; and Brunswick County, under 42 U.S.C. Secs. 1981 and 1983 and North Carolina common law. ² Alexander alleged that the defendants' actions were motivated by race and her political affiliation and activities.

Holden, Shaw, and Jones were each deposed, with their attorney present and without objection, in January of 1994. They extensively discussed their motives for eliminating the Clerk's salary, creating a new position, and selecting Barefoot, rather than Alexander, to fill that position. They indicated that their actions were based upon Alexander's performance, ability, and qualifications, the absence of a working relationship with Alexander, and their desire to save money and increase efficiency. They also stated that they simply felt more comfortable with Barefoot.

Both parties filed cross-motions for partial summary judgment. The district court granted Alexander's motion, finding that Alexander, as a Brunswick County employee, was not required to exhaust her administrative remedies, and that she was protected under the Elrod- Branti line of First Amendment jurisprudence. The court also found that defendants were not entitled to qualified immunity with respect to Alexander's First Amendment claims. The district court granted part of defendants' motion for summary judgment, dismissing Alexander's Sec. 1981 claim.

The court requested additional briefing on Alexander's state law claims and the issue of sovereign immunity. In response, the defendants argued, for the first time, that Alexander's claims were completely barred under the doctrine of legislative immunity. The district court agreed, finding that the commissioners' action of eliminating the salary of the clerk to the Board was "uniquely legislative in nature." The court granted summary judgment to the commissioners and the County, finding that they were entitled to legislative immunity. This timely appeal followed.

II.

A district court's decision to grant summary judgment is reviewed de novo, and our limited task on appeal is to determine whether the defendants are entitled to summary judgment on the basis of a legislative immunity defense. Jackson v. Kimel, 992 F.2d 1318, 1322 (4th Cir.1993). Summary judgment is appropriate when there is no genuine dispute as to a material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 67, 130 L.Ed.2d 24 (1994).

We begin by determining whether the commissioners' actions were legislative or administrative in nature. See Brown v. Griesenauer, 970 F.2d 431, 436 (8th Cir.1992) ("[C]haracterization of [a] proceeding is a question of federal law for purposes of immunity analysis."); Acevedo-Cordero v. Cordero-Santiago, 958 F.2d 20, 23 (1st Cir.1992) ("An act of a legislative body may be characterized as administrative as a matter of law where the relevant underlying facts are uncontroverted."). Legislative immunity only attaches to legislative actions. Roberson v. Mullins, 29 F.3d 132, 134 (4th Cir.1994) ("Members of local governmental bodies are entitled to absolute legislative immunity from claims against them arising out of their actions in a 'legislative capacity.' "); see also Bruce v. Riddle, 631 F.2d 272, 280 (4th Cir.1980) ("County council members are absolutely immune when performing legislative acts."). Executive and administrative actions are not protected. Rateree v. Rockett, 852 F.2d 946, 950 (7th Cir.1988) (citing Tenney v. Brandhove, 341 U.S. 367, 379, 71 S.Ct. 783, 789-90, 95 L.Ed. 1019 (1951)); see also Trevino By and Through Cruz v. Gates, 23 F.3d 1480, 1482 (9th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 327, 130 L.Ed.2d 286 (1994) ("[A]cts [of a local legislature] that are administrative or executive in nature receive less than absolute protection."). Local government bodies often undertake actions in different capacities, including executive, administrative, legislative, and even judicial. See Scott v. Greenville County, 716 F.2d 1409, 1423 (4th Cir.1983) (finding members of city council did not act in their legislative capacity, but rather in an executive capacity in issuing an order to the county planning commission to delay consideration of a building permit); Forrester v. White, 484 U.S. 219, 227, 108 S.Ct. 538, 544, 98 L.Ed.2d 555 (1988) (noting an "intelligible distinction between judicial acts and the administrative, legislative, or executive functions that judges may ... perform"); Rateree v. Rockett, 852 F.2d at 951 (distinguishing legislative acts from executive and judicial acts); Trevino, 23 F.3d at 1482 ("[N]ot all governmental acts by a local legislator, or even a local legislature, are necessarily legislative in nature.").

Under Forrester v. White, the functions of the commissioners determine whether their actions are legislative or administrative for purposes of immunity. 484 U.S. at 224, 108 S.Ct. at 542-43. It is often...