Carver v. Dennis

• Decision Date: 17 January 1997
• Docket Number: No. 95-5873,95-5873
• Citation: 104 F.3d 847
• Parties: Denise CARVER, Plaintiff-Appellant, v. Mildred DENNIS, individually and in her official capacity as county court clerk of Jackson County, Tennessee, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 847

104 F.3d 847

65 USLW 2476

Denise CARVER, Plaintiff-Appellant, v. Mildred DENNIS, individually and in her official capacity as county court clerk of Jackson County, Tennessee Defendant-Appellee.

No. 95-5873.

United States Court of Appeals Sixth Circuit.

Argued Aug. 2, 1996.

Decided Jan. 17, 1997.

Richard M. Brooks (argued and briefed), Carthage, TN, for plaintiff-appellant.

Joseph F. Edwards, Manuel F. Edwards (argued and briefed), O'Mara, Johnson, Edwards & Edwards, Cookeville, TN, for defendant-appellee.

Before: KEITH, SILER, and BATCHELDER, Circuit Judges.

BATCHELDER, Circuit Judge.

The plaintiff appeals the order of the United States District Court for the Middle District of Tennessee granting summary judgment for the defendant. Carver v. Dennis, 886 F.Supp. 636, 640 (M.D.Tenn.1995). For reasons different from those given by the district court, we AFFIRM.

I.

Plaintiff Denise Carver sued Mildred Dennis individually and in her official capacity as Jackson County, Tennessee, clerk, ¹ under 42 U.S.C. §§ 1983 and 1985(3). Carver worked for Dennis as deputy clerk until announcing on December 8, 1993, that she was running for county clerk--against Dennis--in the next election. Dennis laid her off on December 9, 1993, and replaced her one month later. Dennis conceded that had Carver not entered the race, she would not have dismissed her. See id. at 637. Carver, an employee at will, id. at 637 & n. 1 (quoting TENN.CODE ANN. § 8-20-109 (Michie 1993) ("deputies ... shall be removable by the officer for whom they are acting, at will")), claims this violated § 1983 and the First Amendment.

The facts were not in dispute. Dennis moved for summary judgment based on qualified immunity and also on the merits. Id. at 637. The district court did not address the issue of qualified immunity but granted summary judgment on the merits. Id. at 640.

Assuming that in announcing her candidacy for her boss's job, Carver was engaging in political activity and therefore was entitled to First Amendment protection, ² the district court found that Carver was not fired because she held political views different from those of Dennis. Instead, she was fired because of her political activity, which the district court analyzed using a First Amendment balancing test under Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), and Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). 886 F.Supp. at 638-40. The district court stated that in this action, as in Donlin v. Watkins, 814 F.2d 273 (6th Cir.1987), ³ it was appropriate to consider the work environment created by having two candidates for the same post working in the same office. Citing Donlin, the court concluded that the employer's interest overrode the plaintiff's presumed First Amendment rights. 886 F.Supp. at 640. ⁴

II.

We review a grant of summary judgment de novo, Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir.1988) (citations omitted), and may affirm the judgment of the court below on other grounds, see J.E. Riley Inv. Co. v. Commissioner of Internal Revenue, 311 U.S. 55, 59, 61 S.Ct. 95, 97, 85 L.Ed. 36 (1940) (citing Helvering v. Gowran, 302 U.S. 238, 245, 246, 58 S.Ct. 154, 157-58, 158, 82 L.Ed. 224, (1937), cited in Russ' Kwik Car Wash, Inc. v. Marathon Petroleum Co., 772 F.2d 214, 216 (6th Cir.1985)); Collier v. Stanbrough, 47 U.S. (6 How.) 14, 21, 12 L.Ed. 324 (1848); but see City of Kingsport, Tenn. v. Steel & Roof Structure, Inc., 500 F.2d 617, 620 (6th Cir.1974), if we proceed carefully so the party opposing summary judgment is not denied an opportunity to respond. Herm v. Stafford, 663 F.2d 669, 684 (6th Cir.1981) (citations omitted).

A.

The Supreme Court has long held that the Fourteenth Amendment makes the First Amendment applicable to the states. E.g., Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 630, 69 L.Ed. 1138 (1925) (freedom of speech and freedom of the press). In reviewing First Amendment case law last Term, the Court stated:

The government needs to be free to terminate both employees and contractors for poor performance, to improve the efficiency, efficacy and responsiveness of service to the public, and to prevent the appearance of corruption. And, absent contractual, statutory or constitutional restriction, the government is entitled to terminate them for no reason at all.

Board of County Comm'rs v. Umbehr, --- U.S. ----, ----, 116 S.Ct. 2342, 2347, 135 L.Ed.2d 843 (1996). The Court's "modern 'unconstitutional conditions' doctrine holds that the government 'may not deny a benefit to a person on a basis that infringes his constitutionally protected ... freedom of speech' even if he has no entitlement to that benefit...." Id. (emphasis added) (quoting Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697-98, 33 L.Ed.2d 570 (1972), and collecting authorities).

[T]he First Amendment does not create property or tenure rights, and does not guarantee absolute freedom of speech. The First Amendment's guarantee of freedom of speech protects government employees from termination because of their speech on matters of public concern. See Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983) (speech on merely private employment matters is unprotected). To prevail, an employee must prove that the conduct at issue was constitutionally protected, and that it was a substantial or motivating factor in the termination.

Id. (emphasis altered).

Thus, our first inquiry is whether the Constitution protects the plaintiff's conduct. See id.; see also id. at ----, 116 S.Ct. at 2348 (Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), "assures the government's ability to terminate contracts so long as it does not do so in retaliation for protected First Amendment activity."); O'Hare Truck Serv., Inc. v. City of Northlake, --- U.S. ----, ----, 116 S.Ct. 2353, 2356, 135 L.Ed.2d 874 (1996) (referring to "constitutionally protected speech or associations") (quoting Perry, 408 U.S. at 597, 92 S.Ct. at 2697-98; see generally McCloud v. Testa, 97 F.3d 1536, 1542 n. 9 (6th Cir.1996)). Stated narrowly, the issue before us is whether Carver, a deputy county clerk who was an at-will employee in a two-person office--the other person being the county clerk herself--had a First Amendment right to run against the incumbent clerk in the next election and still retain her job.

B.

In the district court, the plaintiff cited Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion), Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), and Perry to assert that retention of a government job cannot be based on an employee's political beliefs. See generally O'Hare Truck, --- U.S. at ----, 116 S.Ct. at 2357; Conklin v. Lovely, 834 F.2d 543, 544-47 (6th Cir.1987). But the plaintiff's complaint does not allege, nor does the record contain any evidence whatsoever, that she lost her position because of her political beliefs. The complaint alleges and the record demonstrates only that Dennis fired her for her rival candidacy, which is a different matter. The constitutionality of dismissing Carver, a government employee, for her political beliefs, her expression of those beliefs, or her political affiliations is not before us.

The Elrod/Branti line of opinions circumscribes the conditioning of employment on, or the termination of employment because of, an individual's political beliefs and political affiliations. The Elrod plurality explained:

Patronage ... to the extent it compels or restrains belief and association is inimical to the process which undergirds our system of government and is "at war with the deeper traditions of democracy embodied in the First Amendment." As such, the practice unavoidably confronts decisions by this Court either invalidating or recognizing as invalid government action that inhibits belief and association through the conditioning of public employment on political faith.

427 U.S. at 357, 96 S.Ct. at 2682 (internal citation omitted). "In summary," the Elrod plurality concluded, "patronage dismissals severely restrict political belief and association." Id. at 372, 96 S.Ct. at 2689. ⁵

The undisputed facts in this case, however, demonstrate that Carver's discharge implicates none of the concerns raised by Elrod or Branti. The parties here do not dispute the fact that Carver was discharged solely because she announced her candidacy against Dennis for Dennis's office. This was not a patronage dismissal. It was not a dismissal because of political beliefs or affiliations. It was not a dismissal based on politics at all, except to the extent that running for public office is a political exercise in its broad sense.

C.

While the Supreme Court has held that the fundamental rights include freedom of speech, e.g., Grosjean v. American Press Co., 297 U.S. 233, 243, 56 S.Ct. 444, 446, 80 L.Ed. 660 (1936) (citations omitted), and freedom of association, e.g., Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 544, 83 S.Ct. 889, 892-93, 9 L.Ed.2d 929 (1963) (citations omitted), both of which the First Amendment protects, see U.S. CONST. amend. I, the Court has never recognized a fundamental right to express one's political views through candidacy. See Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 855-56, 31 L.Ed.2d 92 (1972), quoted in Clements v. Fashing, 457 U.S. 957, 963, 102 S.Ct. 2836, 2843, 73 L.Ed.2d 508 (1982) (plurality opinion) (stating that, "[f]ar from recognizing candidacy as a 'fundamental right,' " the Court has held that the existence of barriers to candidates' access to a state primary ballot does not compel close scrutiny); Newcomb v. Brennan, 558 F.2d 825, 828 (7th Cir.1977) (Three Supreme Court decisions ⁶ "indicate that plaintiff's interest...