Caruso v. De Luca

• Decision Date: 11 April 1996
• Docket Number: No. 95-2741,95-2741
• Citation: 81 F.3d 666
• Parties: Nancy M. CARUSO, Plaintiff-Appellant, v. Elaine K. DE LUCA and City of Oakbrook Terrace, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 666

81 F.3d 666

Nancy M. CARUSO, Plaintiff-Appellant, v. Elaine K. DE LUCA and City of Oakbrook Terrace, Defendants-Appellees.

No. 95-2741.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 5, 1996.

Decided April 11, 1996.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 C 2733--James B. Zagel, Judge.

Patrick K. Bond (argued), Mirabella & Kincaid, Wheaton, IL, for Plaintiff-Appellant.

Gary Feiereisel (argued) and Frank Kasbohm, Fraterrigo, Best & Beranek, Chicago, IL, for Defendants-Appellees.

Before CUDAHY, FLAUM and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Nancy Caruso, formerly the Deputy Clerk of the City of Oakbrook, Illinois, brought this action against the Clerk and the City when the Clerk decided not to reappoint her to another term. Ms. Caruso claims that she was not reappointed because she opposed the Clerk in an election. The district court granted summary judgment for the Clerk and the City. Ms. Caruso now appeals. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I BACKGROUND

Nancy Caruso began working for the Oakbrook Terrace Clerk's office in a part-time clerical position in September 1986. In November 1986, she was appointed to the position of Deputy Clerk by the former City Clerk, Roberta Greninger. In April 1989, Elaine De Luca became the City Clerk. Ms. De Luca reappointed Ms. Caruso to the Deputy Clerk's position and continued to reappoint her annually over the next three years.

The Oakbrook Terrace Clerk's office is responsible for providing several services to the public: It issues business licenses, performs payroll and accounts payable duties, issues vehicle stickers to residents and answers residents' questions and phone calls. The Clerk's position was a part-time one, about ten to fifteen hours each week. The Deputy Clerk's position, in contrast, was a full-time job. By ordinance, the Deputy Clerk had the authority to act as Clerk in the Clerk's absence. In addition to the Clerk and Deputy Clerk, the office had two or three other part-time workers.

Prior to the election held in the fall of 1992, the City aldermen discussed the possibility of changing the Clerk's position to a full-time one and reducing the Deputy Clerk's position to a part-time job. Ms. Caruso learned of this possibility from Ms. De Luca during the fall of 1992. She decided that she would run for the position of City Clerk in the 1992 election; her sole motivation for running was her desire to ensure that she had a full-time job. The decision to run for the office required that she oppose Ms. De Luca in the election.

The record does not reveal that either Ms. Caruso or Ms. De Luca ran for the office with the sponsorship of a political party; at oral argument, counsel for Ms. Caruso represented to us that each ran as an individual--not as a Democrat, a Republican or otherwise. In the fall 1992 election, Ms. De Luca defeated Ms. Caruso and thus continued in the City Clerk's position. Two days after the election, Ms. De Luca informed Ms. Caruso that she would not be reappointed to the position of Deputy Clerk when her term expired in April 1993. A new Deputy Clerk was appointed to take Ms. Caruso's place, and the appointment was ratified by the Oakbrook Terrace City Council.

According to Ms. De Luca's deposition, she decided not to reappoint Ms. Caruso as Deputy Clerk because she believed she "couldn't In another election incident, Ms. De Luca put up a sign across the street from a polling place. She later learned, from her husband, that a sign for Ms. Caruso had been placed directly in front of her sign, blocking it from view, "even though there was room half a block either side for signs." Id. at 88. Ms. De Luca stated that she "just felt that wasn't nice." Id.

                trust her if she ran against me."   R.26, Ex.  D at 55-56.   Ms. De Luca understood Ms. Caruso's election challenge to convey the message that Ms. De Luca wasn't "doing a good job" as City Clerk.   Id. at 56.   Ms. De Luca's distrust was apparently based, at least in part, on events that occurred during the election.   In one instance, Ms. Caruso circulated campaign literature in the form of a "report card" on the candidates.   One of the issues listed on the report card was whether the Clerk's office should be opened one evening during the week or on a Saturday, in order to accommodate those who could not go to the office during its regular business hours.   Under Ms. De Luca's name, Ms. Caruso wrote "rejected in 1991," indicating that Ms. De Luca had refused to open the office after-hours.   Id. at 85.   As Ms. De Luca recalled the 1991 decision, however, the decision had been arrived at collectively, after discussions with all of the office staff, including Ms. Caruso. 1
                

Ms. De Luca's deposition indicates that the election incidents were linked to another reason for her failure to reappoint Ms. Caruso--the restructuring of the Clerk's office. Following the 1992 election, the City Clerk became a full-time position. Ms. De Luca anticipated that this change would have a significant impact on the interpersonal dynamics of the office. Her deposition testimony reveals that she was concerned with Ms. Caruso's presence in the office; Ms. Caruso, because of her many years of experience in the office, may have been resistant to the changes that Ms. De Luca wanted to implement. ²

Ms. Caruso sets forth two counts in her complaint: first, that by firing her, Ms. De Luca and the City violated her First Amendment rights to free expression and free association; second, that the firing violated her procedural due process rights. The defendants moved for summary judgment.

The district court granted the defendants' motion for summary judgment on both counts. Ms. Caruso has not appealed the judgment on her procedural due process claim. The court held that the political firing claim could not survive. It noted that Ms. Caruso held the second-ranking position in the office and, therefore, took over the duties of the Clerk when the Clerk was unavailable. Because the court believed that Ms. De Luca had a right to the loyalty of her Deputy Clerk and to "amity and efficiency" in the office, it reasoned that Ms. De Luca "could constitutionally decide that she ought to look elsewhere than her opponent in the last election in order to find such a number two." Caruso v. De Luca, No. 94-C-2733, 1995 WL 368881, at * 1 (N.D.Ill. June 19, 1995). Ms. Caruso appeals the judgment based on that ruling.

II DISCUSSION

A.

The district court approached this case as one governed by the holdings of the Supreme Court in Branti v. Finkel, 445 U.S. 507, 516, 100 S.Ct. 1287, 1293-94, 63 L.Ed.2d 574 (1980), Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990), and the cases of this court that implement the methodology of that line of cases, see, e.g., Upton v. Thompson, 930 F.2d 1209 (1991), cert. denied, 503 U.S. 906, 112 S.Ct. 1262, 117 L.Ed.2d 491 (1992). This approach forbids the refusal to hire or the discharge of a public employee on the basis of political affiliation unless it can be shown that the position is one for which political loyalty is necessary to the proper discharge of governmental responsibilities. This analytical approach is, however, a "particular subset of the wider category of discharges based on the First Amendment" governed by the Supreme Court's decisions in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), and Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Heideman v. Wirsing, 7 F.3d 659, 662 (7th Cir.1993). The line between those cases that are appropriately analyzed under Branti and those that ought to be analyzed under the Connick-Pickering methodology is not a "stark" one. Heideman, 7 F.3d at 662.

Upon examination of the summary judgment record in this case, we believe that the broader Connick-Pickering analysis provides the most sure-footed analytical path. We do not deal here with the loss of a governmental position because of one's political affiliation with, or support of, a particular group or political party. Indeed, the record does not disclose that Ms. Caruso stood for office as the candidate of any party, and counsel informed us at oral argument that in fact she had not. Moreover, according to her deposition testimony, Ms. De Luca did not seek to justify her action on the ground that the position of Deputy Clerk required political loyalty, but on the ground that a smooth working relationship was not possible between the two because of specific incidents that caused Ms. De Luca to lose trust in Ms. Caruso, who would be "second in command" in the small office. We do not have, in this case, the "individual and governmental interests [that] are essentially unvarying" in patronage cases--a situation that places the focus "less on the expressive activity" and more "on the office occupied by the person engaging in that activity." Heideman, 7 F.3d at 662. Rather, we have an employer's incident-specific response to speech that she considered would make a future working relationship impossible.

Under the Supreme Court's holding in Connick v. Myers, we first must determine whether Ms. Caruso's speech addressed a matter of public concern or a matter of private interest to the employee. This inquiry must focus on the content, form and context of the employee's speech, as revealed by the whole record. Connick, 461 U.S. at 147, 103 S.Ct. at 1690. As Judge Flaum noted in Wright v. Illinois Department of Children & Family Services, 40 F.3d 1492, 1500 (7th Cir.1994), we must consider only the speech which caused the adverse action to be taken against the employee. See Waters v. Churchill, --- U.S. ----, ----, 114 S.Ct. 1878, 1891, 128 L.Ed.2d 686 (1994) (plurality opinion of O'Connor, J.); Connick, 461 U.S. at 149, 103 S.Ct. at 1691....