Avery v. Jennings

• Citation: 604 F. Supp. 1356
• Decision Date: 16 January 1985
• Docket Number: No. C-1-83-0099.,C-1-83-0099.
• Parties: Deborah L. AVERY, et al., Plaintiffs, v. Robert JENNINGS, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

604 F. Supp. 1356

Deborah L. AVERY, et al., Plaintiffs, v. Robert JENNINGS, et al., Defendants.

No. C-1-83-0099.

United States District Court, S.D. Ohio, W.D.

January 16, 1985.

Robert Newman, Cincinnati, Ohio, for plaintiffs.

James W. Harper, John A. Lloyd, Jr., Cincinnati, Ohio, for defendants.

FINDINGS OF FACT, OPINION AND CONCLUSIONS OF LAW

CARL B. RUBIN, Chief Judge.

This case is before the Court on cross motions for summary judgment (docs. 10 and 11), which present the Court with a difficult and novel question: Do the Defendants' hiring practices impermissibly infringe upon the first and fourteenth amendment rights of the Plaintiff, who sought, but was not considered for, positions in which her political affiliation would not affect her job performance? Both parties have filed memoranda in opposition to the adverse motions (docs. 15 and 19), and plaintiff has filed a reply memorandum in support of her motions (doc. 20). The cross motions are therefore ripe for decision. S.D.Ohio R. 4.0.2.

I. Findings of Fact

(1) The plaintiff, Deborah Louise Avery, applied for a position in the defendants' offices on December 21, 1982 by filing an application for employment with the Hamilton County Employee Services Office, in the Hamilton County Courthouse, Cincinnati, Ohio. That same day, plaintiff unsuccessfully attempted to introduce herself to each of the three defendants, Robert Jennings, Clerk of the Court of Common Pleas, John E. Held, County Recorder, and Joseph DeCourcy, Jr., County Auditor.¹

(2) A day or two later, plaintiff contacted Republican Party Headquarters to learn the name of the Republican Party Ward Chairman for her area. She was given the name of Hank Zureick, a bailiff at the Hamilton County Courthouse. Plaintiff telephoned Mr. Zureick, who asked her whether she was a Democrat or Republican, then told her it would not mean anything when she replied "Democrat." Mr. Zureick informed the plaintiff that he was not the ward chairman for her area, and he referred her to Mr. James Gibson, Director of the Hamilton County Department of Employee Services. Although Mr. Zureick and other ward chairmen sometimes recommend persons for employment in the defendants' offices, they have no hiring authority.

(3) Plaintiff contacted Mr. Gibson on December 23, 1982. He told her there were no job vacancies at that time.

(4) On December 29, 1982, plaintiff sent letters to all three defendants in which she introduced herself as a laid-off steelworker who had applied for a job through the personnel office. The letter requested an interview and accompanied a resume showing that plaintiff had actually been a clerical worker at a foundry, that she had both clerical and secretarial experience, and that she had an associate's degree in secretarial studies. Plaintiff did not receive a reply from any of the defendants' offices.

(5) Plaintiff called Mr. Zureick again on January 14, 1983 and told him that she was thinking of becoming a Republican. Mr. Zureick referred her to the ward chairman for her area, Tom Puckett. When plaintiff called Mr. Puckett, she spoke only to Mrs. Puckett, who asked her if she was looking for a job and warned her that there were no vacancies. Plaintiff did not talk to Tom Puckett.

(6) Plaintiff placed a third telephone call to Mr. Zureick, who denied that plaintiff would have to be a Republican to get a job at the courthouse, but said that when jobs did open up, "maybe a fellow Republican could help her out with a job" if she were affiliated "in some way" with the Republican Party. (Avery deposition at 39-40).

(7) Four days later, on January 18, 1983, the plaintiff filed suit against the three defendants, claiming that her political beliefs had disqualified her from consideration for employment in their offices.

(8) Plaintiff first registered to vote in 1976 and voted in the general elections in 1976 and 1977. As a result of her failure to vote in any general election after 1977, plaintiff's name was removed from the list of registered voters on August 8, 1980. Plaintiff re-registered to vote on December 21, 1982. As of August of 1983, plaintiff had never registered to vote in a Democratic primary, but plaintiff considers herself a Democrat.

(9) Four weeks elapsed between the time plaintiff filed her application for employment and the time she filed suit against the defendants. During that time period there were no job vacancies for clerical or secretarial positions in any of the three defendants' offices, or in any other office in the Hamilton County Courthouse. Between the date the suit was filed in January of 1983 and the end of September of 1983, vacancies in all three defendants' offices were filled, without considering applications on file with the Employee Services Office.

(10) Defendant Held has been the Hamilton County Recorder since 1974. His office employs approximately thirty to thirty-six people. No vacancies ever occur, as such, but when the work load gets too heavy, a new person is hired. Such a position would not be publicly advertised, nor would the Hamilton County Employee Services Office be contacted for applications. Positions are filled with persons who have been personally recommended to defendant Held by people he knows, other employees, ward chairmen of both political parties, judges, and the heads of other departments in the courthouse. Prospective employees are interviewed by Mr. Held or his Chief Deputy, and the final hiring decision is always made by Mr. Held. A person applying for a job in Mr. Held's office is not asked her political preference, and a person who volunteered that she was a Democrat would not thereby be excluded from employment. Mr. Held's office has employed Democrats.

(11) Defendant Jennings has been the Clerk of Courts since 1961, when he was appointed to fill an unexpired term. He has since been elected six times. Job vacancies in Mr. Jennings' office are filled both through personal recommendations and through the Hamilton County Employee Services Office. Republican Party Headquarters does not refer prospective employees or send cards signed by Republican ward chairmen. Job openings are not advertised publicly. An applicant meets with both Mr. Jennings and Bob Rudig, the Administrator of the Office. Neither man asks the applicant her political preference. Mr. Jennings prefers to hire Republicans, because he wants employees who are loyal to him, and he assumes that most people who refer applicants to him refer Republican applicants. Once employed, employees are not required to contribute to the Republican Party or to work for the re-election of Mr. Jennings or other Republican office holders. Mr. Jennings' office has employed Democrats.

(12) Defendant Decourcy has been the County Auditor since 1971. When a vacancy occurs in the auditor's office, Mr. DeCourcy tries to fill it by promoting a present employee. If that is not possible, and if the job is a non-technical one, he consults with his employees to determine whether they know of anyone they could recommend. If that course fails, Mr. DeCourcy tells the supervisor of the department with the job opening to call the Employee Services Office to send people over to interview. Although the ultimate hiring decision is made by Mr. DeCourcy, the supervisor does the interviewing and evaluating of prospective employees. When an applicant has been informally referred to the auditor's office, Mr. DeCourcy will meet with the person first. When an applicant has been referred by the Employee Services Office, the supervisor of the department conducts the initial interview. Republican Party Headquarters plays no role in suggesting or recommending people for employment in the auditor's office, nor does it send employment cards signed by ward chairmen. No one in the Auditor's office checks the voting record of prospective employees. Mr. DeCourcy would prefer to have Republicans working for him because he assumes Republican employees would be more interested in helping him get re-elected. Although people who refer job applicants may mention the prospective employee's political affiliation, Mr. DeCourcy and his supervisors do not discuss political activity or political loyalty of job applicants. Once employed, employees are not encouraged to contribute to the Republican Party. Mr. DeCourcy's office has employed Democrats.

(13) All three defendants employ persons with qualifications similar to the plaintiff's to fill a number of clerical and secretarial positions. Defendant Held was in Florida when plaintiff's letter to him arrived in his office, and he did not see it until after plaintiff filed this suit. Defendant Jennings never received plaintiff's letter, although he did see the copy attached to the complaint. Defendant DeCourcy recalled talking to the plaintiff and telling her to apply through the Employee Services Office, but he never saw the letter that plaintiff sent to his office. Mr. Held could not tell without talking to the plaintiff whether she would be qualified to work in his office. Mr. Jennings thought plaintiff's resume indicated that she was qualified to do a number of jobs in his office, but that she would not be considered because she had filed suit against him. Similarly, Mr. DeCourcy stated that he would not consider hiring the plaintiff because she had filed suit and was antagonistic towards his office.

(14) According to James Gibson, the county's Board of Commissioners laid off fourteen employees, four of them clerical workers, in the month in which plaintiff filed her application. There were no job vacancies at that time, and the laid-off employees would have been considered first for any openings that might have occurred in any county office.

II. Opinion

The first question which the Court must decide on a motion for summary judgment is whether the pleadings, depositions, answers to interrogatories, admissions, and affidavits on file with the Court reveal any genuine...