Conklin v. Lovely

• Decision Date: 03 December 1987
• Docket Number: No. 86-1607,86-1607
• Citation: 834 F.2d 543
• Parties: , 2 Indiv.Empl.Rts.Cas. 1481, 24 Fed. R. Evid. Serv. 414 Carol CONKLIN, Plaintiff-Appellee, v. Leo E. LOVELY; Joe W. Wakeley; and John Huss, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 543

834 F.2d 543

56 USLW 2338, 2 Indiv.Empl.Rts.Cas. 1481,

24 Fed. R. Evid. Serv. 414

Carol CONKLIN, Plaintiff-Appellee, v. Leo E. LOVELY; Joe W. Wakeley; and John Huss, Defendants-Appellants.

No. 86-1607.

United States Court of Appeals Sixth Circuit.

Argued Oct. 2, 1987.

Decided and Filed Dec. 3, 1987.

Ronald G. Acho (argued), Cummings, McClorey, Davis, and Acho, P.C., Livonia, Mich., Gail P. Massad, for defendants-appellants.

Donald B. Greenspon (argued), Greenspon, Scheff & Washington, Detroit, Mich., for plaintiff-appellee.

Before KEITH, MILBURN and NORRIS, Circuit Judges.

MILBURN, Circuit Judge.

Plaintiff-appellee Carol Conklin filed an action under 42 U.S.C. Secs. 1983 and 1985(3) against defendants-appellants alleging that she was discharged from her position as a county employee because of her political activities and in violation of her First Amendment rights. After the district court overruled the defendants' motion for a summary judgment, the case proceeded to trial, and a jury verdict was rendered in favor of the plaintiff in which she was awarded $40,000.00 in compensatory damages for back wages. Subsequently, the district court ordered the plaintiff reinstated and awarded attorneys' fees against the defendants under 42 U.S.C. Sec. 1988. For the reasons that follow, we affirm the district court with respect to all issues raised by the defendants with the exception of attorneys' fees. We remand the issue of attorneys' fees for findings as to the amount and necessity of a risk-multiplier in the present case.

I.

Plaintiff was hired by Crawford County, Michigan ("the County"), in July 1977, as a clerk. Two years later, plaintiff was laid off but was subsequently rehired in June of 1980. At that time, plaintiff was assigned a "split shift," working half-time for defendant County Clerk Leo Lovely ("Lovely") and half-time for defendant County Treasurer Joseph Wakeley ("Wakeley"). At no time was plaintiff an employee of defendant John Huss ("Huss").

During the spring and summer of 1980, the County held an election. Defendants Wakeley and Lovely ran for re-election and won. ¹ Both Wakeley and Lovely ran as Republicans. Defendant Huss ran for the office of County Prosecuting Attorney against the incumbent, Alton Davis. Mr. Davis, a Democrat, was eventually defeated by Huss, who also ran as a Republican.

Plaintiff was active in campaigning for Mr. Davis. She placed a sticker on her automobile supporting Mr. Davis and otherwise openly participated in the campaign against defendant Huss. Plaintiff alleged that as a result of her activities, she was at one point told by Huss, "paybacks are hell."

On December 1, 1980, plaintiff was discharged from her position. She testified that she received two telephone calls that evening, one from Wakeley and one from Lovely. T. Tr. at 319. Wakeley, plaintiff testified, stated when asked the reason for her termination, "I can't tell you, but I have to fire you." Id. Lovely stated, "I can't tell you, you're just fired." Id. at 319-20. The evidence further showed that Huss, Wakeley and Lovely had privately discussed the termination on November 30, 1980. T. Tr. at 64 (testimony of Lovely).

Bill Borchers, Equalization Director of Crawford County, also testified in plaintiff's behalf. He stated that after he learned of plaintiff's discharge, he asked Lovely why plaintiff was fired. Lovely replied that there was nothing he could do about it, as the decision came from a higher authority than him. T. Tr. at 160.

Plaintiff claimed she was terminated because of her political support for a Democrat, Mr. Davis. The defendants, however, contended that plaintiff was fired for poor work performance.

On March 26, 1981, plaintiff filed an action in the district court claiming her First and Fourteenth Amendment rights under the United States Constitution were violated, and that she was entitled to recovery under 42 U.S.C. Sec. 1983. Joined as defendants were plaintiff's former employers, Lovely and Wakeley. Also joined were Mr. Huss, recently elected Prosecuting Attorney, and the Board of Commissioners for the County. ² Later, by leave of the district court, plaintiff amended her complaint and added as grounds for recovery: (1) 42 U.S.C. Sec. 1985(3), which imposes liability on those conspiring to deprive any person of equal protection of laws; and (2) Toussaint v. Blue Cross and Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980), which establishes a cause of action in Michigan for employees terminated in violation of their contractual rights.

Defendants responded by filing a motion for summary judgment on each of plaintiff's three claims. The district court granted defendants' motion as to plaintiff's Toussaint claim but overruled the motion as to plaintiff's claims under 42 U.S.C. Secs. 1983 and 1985(3). Plaintiff does not appeal the summary judgment order as to her Toussaint claim. Defendants argue they were entitled to summary judgment on all of plaintiff's claims.

Trial commenced on August 2, 1985. During the trial, defendants objected to the testimony of Ms. Beth Money, a former employee of defendant Huss, who claimed she was also discharged in retaliation for her support for Huss' opponent, Mr. Davis. The district court, however, found the testimony admissible. Defendants also attempted to offer evidence that they allege bears on plaintiff's failure to mitigate her damages, but the district court excluded this evidence. The defendants appeal these evidentiary rulings.

The jury returned its verdict on August 19, 1985. By written interrogatories, the jury found as follows: (1) that defendant Lovely discharged plaintiff because of her political support for Mr. Davis, (2) that defendant Wakeley discharged plaintiff because of her political support for Mr. Davis, (3) that defendant Huss conspired together with either Wakeley or Lovely to discharge plaintiff for her support of Mr. Davis, and (4) that plaintiff had sustained compensatory damages for back wages in the amount of $40,000.00. The district court entered judgment against the defendants on August 20, 1985.

Defendants moved for judgment notwithstanding the verdict (JNOV), arguing that the judgment was against the great weight of the evidence and raising again the aforementioned evidentiary issues. The district court denied the motion. Plaintiff's attorney made motions for costs and attorneys' fees under 42 U.S.C. Sec. 1988 and for reinstatement of plaintiff to her former position. The district court granted plaintiff's motions.

II.

A.

Defendants first argue that their motion for summary judgment on plaintiff's claim under section 1983 should have been granted. We disagree.

A motion for summary judgment should be granted where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The Supreme Court has recently stated: "The inquiry [is] whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).

In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), the United States Supreme Court held that a nonpolicymaking employee may not be terminated solely on the grounds of political affiliation. Such terminations, the Supreme Court reasoned, "severely restrict political belief and association." Id. at 372, 96 S.Ct. at 2689. It has, however, been held that patronage dismissals are constitutionally permissible where, "the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 1295, 63 L.Ed.2d 574 (1980). Additionally, if an employee is discharged because of expression which is not of a public concern, there is no First Amendment violation. Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).

An individual claiming he or she has been discharged in violation of the First and Fourteenth Amendments must, however, show her discharge was caused by her political activities. See Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). In Mt. Healthy, the Court adopted a test for determining whether an employee's discharge was causally related to his or her political activity. The Court stated plaintiff must show her constitutionally-protected activity was a "substantial" or "motivating" factor behind the decision to terminate. Id. at 287, 97 S.Ct. at 576.

In the present case, defendants argue that plaintiff has failed to raise a genuine issue on this point. The question of what actually motivated plaintiff's discharge may, of course, be determined by circumstantial evidence. See Rosaly v. Ignacio, 593 F.2d 145, 149 (1st Cir.1979) ("We acknowledge that circumstantial evidence may be used to show discriminatory motive in a patronage dismissal case."). In the present case, we hold that there was presented to the district court sufficient evidence, although admittedly circumstantial, of a patronage dismissal that a genuine issue of fact was raised.

The plaintiff in this case had an exemplary employment record. T. Tr. at 88. She was never reprimanded or criticized for her work although at the time she was discharged, she was a probationary employee. ³ She had worked for the County in the past, and her good work habits were known to her supervisors. Indeed, after her layoff in 1979, she was rehired by defendants Wakeley and Lovely.

Also, the statement from defendant Huss that "paybacks are hell" is evidence of an improper motive. Defendants contend this statement was made in the unrelated context of labor negotiations. The plaintiff, however, argued, and evidently the jury agreed, that this statement referred to the...