Gann v. Cline, 07-6011.

Citation519 F.3d 1090
Decision Date11 March 2008
Docket NumberNo. 07-6011.,07-6011.
PartiesSharee GANN, an individual, Plaintiff-Appellee, v. Carol CLINE, in her individual capacity; The Board of County Commissioners of the County of Oklahoma, State of Oklahoma; Doug Williams, in his individual and official capacities, Defendants, and Brent Rinehart, in his individual and official capacities, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Andrew W. Lester, (Courtney D. Powell and Shannon F. Davies with him on the brief), of Lester, Loving & Davies, P.C., Edmond, OK, for Plaintiff-Appellee.

Victor F. Albert of Conner & Winters, L.L.P., Oklahoma City, OK, for Defendant-Appellant.

Before KELLY, EBEL, and McCONNELL, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Defendant-Appellant Brent Rinehart, Oklahoma County Commissioner, in his individual capacity, appeals the district court's denial of his Fed.R.Civ.P. 12(b)(6) motion to dismiss on qualified immunity grounds. Plaintiff-Appellee Sharee Gann brought this action pursuant to 42 U.S.C. § 1983, alleging Commissioner Rinehart, acting under color of state law, violated her First Amendment rights by engaging in political patronage. Our jurisdiction arises under 28 U.S.C. § 1291 and the collateral order doctrine allowing an interlocutory appeal from the denial of qualified immunity that rests upon purely legal grounds, Johnson v. Jones, 515 U.S. 304, 317, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), and we affirm.

Background

The following alleged facts are assumed to be true for purposes of Commissioner Rinehart's motion to dismiss. In January 2001, Ms. Gann was hired as an administrative assistant at the District 2 office of then Oklahoma County Commissioner Jack Cornett. She was later transferred to the operations site as office manager, replacing Leta Dyer, who had been terminated by Mr. Cornett. Ms. Gann ultimately assumed the duties of requisitions manager in addition to her other duties. In 2004, Mr. Rinehart was elected as County Commissioner and replaced Mr. Cornett. Although Ms. Dyer campaigned for and supported Mr. Rinehart during the 2004 election, Ms. Gann did not campaign for either Mr. Rinehart or Mr. Cornett.

On December 29, 2004, Mr. Rinehart hired Ms. Dyer to work as a temporary employee. Later, Mr. Rinehart twice attempted but failed to remove Ms. Gann from her position as requisitions manager. In addition, he transferred Ms. Gann's job duties to Ms. Dyer. Before the rehiring process, he told a county director that he was going to replace Ms. Gann with Ms. Dyer. In March 2005, Rinehart interviewed both Ms. Dyer and Ms. Gann during the rehiring process, but opted to hire Ms. Dyer as office manager. Although current District 2 employees had been told they would receive priority in hiring, Ms. Gann was terminated on April 8, 2005.

In this action challenging Mr. Rinehart's exercise of political patronage,1 Ms. Gann alleges that Mr. Rinehart replaced her with Ms. Dyer because Ms. Dyer demonstrated her political loyalty to Mr. Rinehart by supporting his campaign while Ms. Gann failed to do so. Ms. Gann also alleges that she did not participate in confidential or policy-making decisions under either Mr. Cornett or Mr. Rinehart and thus party affiliation was not a requirement for her position. Mr. Rinehart does not dispute this.

Mr. Rinehart filed a motion to dismiss Ms. Gann's political patronage claim on qualified immunity grounds, arguing that his conduct did not violate Ms. Gann's constitutional rights and, even if it did, those rights were not clearly established by controlling precedent at the time of his conduct. In an unpublished order, the district court denied Mr. Rinehart's motion to dismiss, finding that Mr. Rinehart's conduct violated Ms. Gann's clearly established right to political non-affiliation. Aplt.App. at 115. This appeal followed.

Discussion

As this qualified immunity appeal comes to us on the denial of a motion to dismiss, the customary pleading standard applies and our review is de novo. See Boles v. Neet, 486 F.3d 1177, 1180 (10th Cir.2007) (denial of qualified immunity is reviewed de novo); Currier v. Doran, 242 F.3d 905, 916-17 (10th Cir.2001) (rejecting "heightened pleading standard" for qualified immunity). We accept as true all well-pleaded allegations of a plaintiff's complaint and view them in the light most favorable to the non-moving party. Anderson v. Blake, 469 F.3d 910, 913 (10th Cir.2006). The complaint must plead sufficient facts, that when taken as true, provide "plausible grounds" that "discovery will reveal evidence" to support plaintiff's allegations. Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007).

"The doctrine of qualified immunity shields public officials . . . from damages actions unless their conduct was unreasonable in light of clearly established law." Elder v. Holloway, 510 U.S. 510, 512, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994). Thus, to determine whether a public official is entitled to qualified immunity, we first consider whether the plaintiff's factual allegations show that the official's conduct violated a constitutional right, and if they do, we examine whether the right was clearly established. See Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). To be clearly established, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). A plaintiff can demonstrate that a constitutional right is clearly established "by reference to cases from the Supreme Court, the Tenth Circuit, or the weight of authority from other circuits." Anderson, 469 F.3d at 914.

A. Political Patronage

Political patronage is the practice whereby "public employees hold their jobs on the condition that they provide, in some acceptable manner, support for the favored political party." Elrod v. Burns, 427 U.S. 347, 359, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Although this practice has existed on the federal level at least since the Presidency of Thomas Jefferson, id. at 353, 96 S.Ct. 2673, the practice may violate the First Amendment where a public employee is discharged because of his or her "`political beliefs, affiliation, or non-affiliation unless [his or her] work requires political allegiance.'" Snyder v. City of Moab, 354 F.3d 1179, 1184 (10th Cir.2003) (quoting Mason v. Okla. Tpk. Auth., 115 F.3d 1442, 1451 (10th Cir.1997)). Although the First Amended Complaint refers to both Ms. Gann's termination and to Commissioner Rinehart's failure to rehire her, it does not matter for constitutional purposes whether she was fired or just not rehired for political patronage reasons. See Rutan v. Republican Party of Ill., 497 U.S. 62, 72, 76-78, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990). Political patronage need not be the sole reason for an employee's discharge, it need only constitute a substantial or motivating factor. See Mason, 115 F.3d at 1451-52; see also Branti v. Finkel, 445 U.S. 507, 514-15, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). Once a plaintiff proves political patronage was a substantial or motivating factor behind his dismissal, the burden of persuasion shifts to the defendant to prove, as an affirmative defense, that the discharge would have occurred regardless of any discriminatory political motivation. Mason, 115 F.3d at 1452.

B. Analysis

Mr. Rinehart argues he is entitled to qualified immunity because his alleged conduct did not violate a constitutional right. In support of his position, Mr. Rinehart argues political non-affiliation is not protected by the First Amendment and thus he cannot be liable to Ms. Gann because she did not actively contest his election or affirmatively demonstrate an opposing political affiliation. He also argues that even if non-affiliation is constitutionally protected, because Ms. Gann never told him that she was apolitical, it was impossible for her apolitical status to constitute a substantial or motivating factor in his decision to discharge her. Finally, Mr. Rinehart argues that even if his conduct amounted to a constitutional violation, the right to political non-affiliation was not clearly established at the time his conduct occurred. We address each of these contentions in turn and conclude that Mr. Rinehart is not entitled to qualified immunity.

First, we reject Mr. Rinehart's argument that he did not engage in political patronage because Ms. Gann did not actively contest his election or affirmatively demonstrate an opposing political affiliation. Discrimination based on political non-affiliation is just as actionable as discrimination based on political affiliation. See Rutan, 497 U.S. at 64, 110 S.Ct. 2729; Branti, 445 U.S. at 517, 100 S.Ct. 1287; Elrod, 427 U.S. at 350, 96 S.Ct. 2673; Bass v. Richards, 308 F.3d 1081, 1091 (10th Cir.2002); Mason, 115 F.3d at 1451. In Rutan, the Supreme Court summarized:

To the victor belong only those spoils that may be constitutionally obtained. 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), decided that the First Amendment forbids government officials to discharge or threaten to discharge public employees solely for not being supporters of the political party in power, unless party affiliation is an appropriate requirement for the position involved.

Rutan, 497 U.S. at 64-65, 110 S.Ct. 2729 (extending Elrod and Branti to invalidate political patronage practices related to promotion, transfer, recall, and hiring of low-level public employees) (emphasis added). Thus, the "First Amendment prevents the government, except in the most compelling circumstances, from wielding its power to interfere with its employees' freedom to believe and associate, or to not...

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