Faughender v. City of North Olmsted, Ohio

• Decision Date: 13 March 1991
• Docket Number: No. 90-3107,90-3107
• Citation: 927 F.2d 909
• Parties: Barbara FAUGHENDER, Plaintiff-Appellant, v. CITY OF NORTH OLMSTED, OHIO; and M. Yvonne Petragic, Mayor of the City of North Olmsted, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 909

927 F.2d 909

Barbara FAUGHENDER, Plaintiff-Appellant, v. CITY OF NORTH OLMSTED, OHIO; and M. Yvonne Petragic, Mayor of the City of North Olmsted, Defendants-Appellees.

No. 90-3107.

United States Court of Appeals Sixth Circuit.

Argued Nov. 6, 1990.

Decided March 13, 1991.

Robert J. Fogarty, Steven A. Goldfarb (argued), Hahn, Loeser & Parks, Cleveland, Ohio, for Barbara Faughender.

Jeffrey W. Van Wagner, Ulmer & Berne, Cleveland, Ohio, James M. Dubelko, Michael R. Gareau (argued), North Olmsted, Ohio, for City of North Olmsted.

Thomas A. Dugan, Ulmer & Berne, Cleveland, Ohio, for M. Yvonne Petragic.

John E. Gotherman, Calfee, Halter & Griswold, Cleveland, Ohio, Stanley J. Dobrowski, Calfee, Halter & Griswold, Columbus, Ohio, for The Ohio Mun. League, amicus curiae.

Before GUY and BOGGS, Circuit Judges, and BERTELSMAN, District Judge. ^*

BOGGS, Circuit Judge.

This case requires us to revisit the question of when the first amendment's guarantee of freedom of speech prevents a city from firing or refusing to hire a non-civil service employee for political reasons. Barbara Faughender appeals from a grant of summary judgment for the defendants on her state and federal claims arising out of the refusal of the new mayor of North Olmsted, Ohio, Yvonne Petragic, to reappoint her as secretary to the Mayor. Faughender sued in district court, alleging that the city violated 42 U.S.C. Sec. 1983 by denying her government employment because of her political beliefs and associations, in violation of the first amendment. Her suit also alleged three state-law claims arising out of the same refusal to hire her; breach of an employment contract, promissory estoppel, and discharge in violation of public policy. For the reasons that follow, we affirm the grant of summary judgment on her first amendment claim and reverse the grant of summary judgment on her state-law claims.

I

A

Faughender first began work for the city of North Olmsted in 1981. She answered an ad in the Cleveland Plain Dealer for the position of secretary to the Safety Director, Gene Petry. Her appointment appears to have been entirely based on merit, although she did receive a recommendation from the Mayor of Faughender's home town, the nearby city of Olmsted Falls. Her duties for Petry involved typing and filing, and there is no proof that she was involved in any political or policy decisions while she was Petry's secretary.

In 1983, Petry asked Faughender to take the job of secretary to the mayor. This job became available because then-Mayor Robert Swietyniowski ("the Mayor") was marrying his prior secretary, an act which caused much commotion in North Olmsted and ultimately caused the Mayor to lose his bid for re-election in 1985. Faughender was initially reluctant to enter into this squall, but finally took the job. The job of secretary to the mayor is not subject to civil service protection.

The Mayor lost his bid for re-election in the Democratic primary in 1985. The ensuing Democratic nominee lost to the ultimate winner, Republican Yvonne Petragic. Faughender was personally informed shortly after the election by Petragic that her services would no longer be required. While Petragic denies that she refused to hire Faughender because she supported the Mayor's re-election, Petragic admits that she told Faughender that part of the reason she would not be rehired was because she was friends with the Mayor's new wife. Petragic stated in her deposition that she intended to use her secretary as a close confidante and ask her for advice on pending matters. Although Faughender asked Petragic for another available non-civil service secretarial job, she has not yet received one.

B

Faughender contends that her job as secretary to the Mayor involved no politically or policy-related duties. She alleges that she spent her time in routine secretarial work: typing, answering the phone line used by the public, filing and copying. She alleges that confidential and otherwise political materials were typed and processed by the Mayor's administrative assistant, Mary Slama. Faughender contends that she did not attend meetings held in the Mayor's office between the Mayor and the Democratic members of the city council. She also contends she was not otherwise given access to the Mayor's political or private meetings. None of the parties refer to a formal job description for the position of secretary to the mayor.

Faughender's claims are partially supported by Mayor Swietyniowski's deposition testimony. The Mayor clearly stated that the job of mayor's secretary was political, and that he wanted someone with a political background to fill the job. In addition to the duties which Faughender described herself as performing, the Mayor said she was privy to political information and participated in some, but not all, of his political or policy meetings. The Mayor stated that he had a private telephone line which Faughender could not answer, that the files in the Mayor's office were all open for public inspection, that he had a locked desk where he could keep sensitive files, and that Slama typed his speeches and his reports to the council.

All parties agree that Faughender worked on the Mayor's re-election campaign, but there is diverging evidence on the extent of Faughender's involvement in North Olmsted politics during her tenure as secretary to the Mayor. Faughender claims that she was involved only in campaign work, stating that she did not know who the Mayor's political enemies were. She denies personally coming to the Mayor's political aid, but admits that she testified in support of the Mayor's position on a personnel matter at a council meeting. She denies knowing in advance that a political fight over that matter was brewing that would require her testimony.

II

We review a district court's grant of summary judgment under a de novo standard of review. E.E.O.C. v. University of Detroit, 904 F.2d 331, 334 (6th Cir.1990). We examine the grant of summary judgment to determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir.1989) (citation omitted). Although we must draw all justifiable inferences in favor of the non-moving party, Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), there must be a disagreement regarding an item of material fact. Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.1986). The evidence presented must be sufficient to permit the plaintiff to recover if accepted by the jury.

III

A

We examine Faughender's claim in light of three Supreme Court decisions holding that a governmental unit violates the first amendment if it makes certain personnel actions for political reasons. The Court first considered this question in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). The court in Elrod held that a governmental unit violated the first amendment by installing a traditional patronage system of government employment, wherein every government employee not covered by civil service could be fired for strictly political reasons. There was no majority opinion, but the opinion for the plurality stated that politically-motivated firings violate the first amendment by restraining the freedom of the fired employee to hold whatever political beliefs he desires, and to associate with others to advance those beliefs. Elrod, 427 U.S. at 355-60, 96 S.Ct. at 2680-83. It stated that a government could constitutionally fire an employee for political reasons, however, if the government could demonstrate that a "vital government end" would be achieved by means " 'closely drawn to avoid unnecessary abridgement....' " Elrod, 427 U.S. at 363, 96 S.Ct. at 2684-85 (citation omitted). It also stated that governments have a vital interest in ensuring that "representative government not be undercut by tactics obstructing the implementation of policies of the new administration," Elrod, 427 U.S. at 367, 96 S.Ct. at 2687, but that this interest extended only to "confidential" employees in "policymaking positions" because such a limitation was the least restrictive means of achieving the government's legitimate interest in patronage dismissals. Elrod, 427 U.S. at 372, 96 S.Ct. at 2689.

The Court affirmed and clarified its holding in Elrod in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). The Court majority in Branti reaffirmed the holdings of the Elrod plurality that patronage dismissal violated the first amendment, and that permitting politically-motivated dismissals of persons in certain politically sensitive positions is necessary to uphold a vital governmental interest. Branti, 445 U.S. at 513-16, 100 S.Ct. at 1292-94. The Court in Branti, however, reformulated the scope of permissible patronage. The Branti Court held that "the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." Branti, 445 U.S. at 518, 100 S.Ct. at 1295.

In its last term, the Court eliminated any thought that the dictates of Elrod and Branti would be limited to firings. In Rutan v. Republican Party of Illinois, --- U.S. ----, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990), the Court upheld the rationale of both Elrod and Branti, and extended their reach to other common varieties of patronage preferment: hirings, transfers, promotions, and recalls from layoffs.

B

We must therefore examine Faughender's claim to determine if she has presented evidence which, if true, could support her claim that her dismissal from employment by the City of North Olmsted violated the Supreme Court's holdings in Elrod, Branti, and Rutan. The district court gave two reasons for holding that she...