Cusson-Cobb v. O'Lessker
| Decision Date | 15 January 1992 |
| Docket Number | P,CUSSON-COB,No. 91-1694,91-1694 |
| Citation | 953 F.2d 1079 |
| Parties | Jodylaintiff-Appellant, v. Karl O'LESSKER, Willis Zagrovich, Frederick Corban, in their official capacity as Commissioners of the Indiana Utility Regulatory Commission, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Frank B. Harshey (argued), Merriman & Harshey, Indianapolis, Ind., for plaintiff-appellant.
Jon D. Krahulik, James L. Turner, Mary Beth Claus, David C. Campbell (argued), Bingham, Summers, Welsh & Spilman, Indianapolis, Ind., for defendants-appellees.
Before WOOD, Jr., MANION and KANNE, Circuit Judges.
In 1989, Appellant Jody Cusson-Cobb, a Republican, was fired from her position as General Counsel to the Indiana Utility Regulatory Commission by the newly-appointed Chairman, James Monk, who was a Democrat. Monk appointed David Zeigner, also a Democrat, to replace Cusson-Cobb as General Counsel. Shortly thereafter, Cusson-Cobb filed this § 1983 action alleging that she was fired because of her political affiliation in violation of the First and Fourteenth Amendments to the United States Constitution. The district court granted summary judgment for the defendants because Cusson-Cobb failed to present any evidence that political affiliation was a motivating factor in her discharge. We affirm.
The Indiana Utility Regulatory Commission ("IURC") is a five-member, bi-partisan commission responsible for regulating electric, gas, telephone, water and sewer utilities in Indiana. See Ind.Code § 8-1-1-2 et seq. The five commissioners of the IURC, including the chairman, are appointed by the Governor of Indiana. Ind.Code § 8-1-1-2. No more than three commissioners can be of the same political party. Id. The agency's purpose is to develop utility regulation which serves the public interest by providing dependable and reliable utility services at the lowest possible rates. Its duties include regulating rates, finances, service territories and safety.
The IURC has statutory authority to employ "sufficient professional staff" necessary for the commission to carry out its statutory duties. Ind.Code 8-1-1-3(h)(1). Pursuant to this authority, Cusson-Cobb, a Republican, was appointed as a staff attorney to the IURC in September 1986 and was elevated to General Counsel in January 1988. Cusson-Cobb served as General Counsel to the IURC until July 1989. Neither Cusson-Cobb's complaint nor her affidavit in opposition to summary judgment indicate who appointed her or whether her party affiliation was a factor in her appointment.
On May 5, 1989, Governor Evan Bayh--the first Democrat elected Governor of Indiana in twenty years--appointed James Monk (who at the time was a Democrat state legislator) chairman of the IURC. Monk replaced Chairman Les Duvall, a Republican. Prior to taking office as chairman, Monk asked David Zeigner, a Democrat, to accompany him to the IURC as General Counsel. Zeigner was a staff attorney for the Legislative Services Agency, an adjunct to the Indiana General Assembly, and had demonstrated his expertise in utility law while working with Monk on legislative matters. Zeigner agreed to accept the position of General Counsel in May 1989, 1 and Monk, on June 5, 1989, informed Cusson-Cobb that she was terminated from her position as General Counsel.
On October 2, 1989, Cusson-Cobb filed this § 1983 action claiming Monk fired her because of her affiliation with the Republican Party. Cusson-Cobb's complaint alleges that she is a Republican; her association with the Republican Party "was known to the Commissioners of IURC"; she was fired by Monk, a Democrat; and she was replaced by Zeigner, a Democrat. Cusson-Cobb also alleges that the termination of her employment with the IURC "violated her right to freedom of speech and political association."
The defendants filed a motion for summary judgment supported by Monk's affidavit stating that he did not know Cusson-Cobb's political affiliation when he was appointed chairman of the IURC or when he fired Cusson-Cobb. Monk also stated that he hired Zeigner as General Counsel of the IURC because of his expertise in utility law and experience with utility legislation.
Cusson-Cobb's answering affidavit merely repeated the allegations in her complaint. Although Cusson-Cobb again claimed that her political affiliation was "well known," she provided no evidence to support this conclusion. Also, Cusson-Cobb did not state or provide any evidence that her political affiliation was known by Monk. The district court granted the defendants' motion for summary judgment because Cusson-Cobb had not offered evidence that political affiliation was a motivating factor in her discharge.
We review the district court's grant of summary judgment de novo, applying the same standard as that employed by the district court. McMillian v. Svetanoff, 878 F.2d 186, 188 (7th Cir.1989). We will affirm the grant of summary judgment, therefore, "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "A party faced with a motion for summary judgment who bears the burden of proof on a particular issue may not rest on its pleadings but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact for trial." McMillian, 878 F.2d at 188 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). See also Powers v. Dole, 782 F.2d 689, 694 (7th Cir.1986). It is undisputed that firing a public employee because of her political affiliation violates the First Amendment and is actionable under § 1983, unless political loyalty is an appropriate qualification for the job. See Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). Cusson-Cobb alleges that Monk discharged her because of her affiliation with the Republican Party. She has the initial burden of proving that political affiliation was a motivating factor in her discharge. Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); McMillian, 878 F.2d at 190. To survive the defendants' motion for summary judgment, therefore, Cusson-Cobb must set forth specific facts raising a genuine issue as to Monk's motivation for firing her.
Cusson-Cobb has not raised a genuine issue of fact as to whether her affiliation...
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