H. Moss v. Martin - .

• Decision Date: 02 August 2010
• Docket Number: No. 09-1567.,09-1567.
• Citation: 614 F.3d 707
• Parties: William H. MOSS, Plaintiff-Appellant, v. Timothy MARTIN, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

614 F.3d 707

William H. MOSS, Plaintiff-Appellant,

v.Timothy MARTIN, et al., Defendants-Appellees.

No. 09-1567.

United States Court of Appeals,Seventh Circuit.

Argued Feb. 11, 2010.

Decided Aug. 2, 2010.

Rehearing Denied Sept. 9, 2010.

John Edward Kerley (argued), Kerley & Associates, Springfield, IL, for Plaintiff-Appellant.

Mary Ellen Welsh (argued), Office of the Attorney General, Chicago, IL, for Defendants-Appellees.

Before KANNE, WOOD, and HAMILTON, Circuit Judges.

WOOD, Circuit Judge.

Political patronage lies at the heart of this case-this time, favoritism based on political party affiliation in the Highway Sign Shop of the Illinois Department of Transportation (“IDOT”). William H. Moss worked as the Chief of that shop from 2000 until April 2004, when he was fired to make room for an employee chosen by the administration of then-Governor Rod Blagojevich. Moss sued a number of state officials under 42 U.S.C. § 1983, asserting that his rights under the First Amendment and the due process clause were violated. The district court dismissed all claims on the pleadings, see Fed.R.Civ.P. 12(c), but this court ruled that Moss was entitled to go forward with his First Amendment theory. See Moss v. Martin, 473 F.3d 694 (7th Cir.2007) (“Moss J”). On remand, the district court ruled that the defendants were entitled to qualified immunity because they relied on the conclusion of Illinois's Central Management Services (“CMS”) agency that Moss's job was “exempt” from the rule banning politically-based firings established in Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990). The court therefore granted summary judgment to the defendants, and Moss's second appeal is now before us. Although we find that the decision to fire Moss probably fell afoul of the Rutan principle, we agree with the district court that the defendants were entitled to qualified immunity. We therefore affirm.

I

Most of the details concerning Moss's job and the events leading to his firing were set out in Moss I, 473 F.3d at 697-98, and so we provide only a summary here. Moss began working as the Chief of IDOT's Highway Sign Shop in Springfield in September 2000. His immediate supervisor was Joe Hill, the Bureau Chief of Operations; Hill reported to Jack Hook, the Deputy Director of Highways. Moss was responsible for overseeing the fabrication and repair of all the highway signs scattered across the State of Illinois; in that capacity, he supervised about 25 employees.

In January 2003, Illinois ended a long run of Republican governors when Rod Blagojevich, a Democrat, took office. About a year later, a personnel manager at IDOT named Jacob Miller happened to run across a newspaper article that mentioned that Moss was running for a position as a Republican precinct committeeperson for Sangamon County. Miller checked a few human resources records and discovered that Moss was on IDOT's list of so-called double-exempt employees. In plain English, that means that CMS, the state agency responsible for administering almost all state hiring, had concluded that his position was subject neither to the Illinois Personnel Code nor the Supreme Court's Rutan decision. Briefly, Rutan held that governments may not base employment decisions such as promotions, transfers, and recalls for low-level employees on political affiliation or support; to do so would be an impermissible infringement on the public employees' First Amendment rights. People in non-exempt positions, where political loyalty is a bona fide requirement, do not enjoy comparable protection. After Miller learned that Moss was double-exempt, he quickly shot off an email on December 22, 2003, to Robert Millette, the Director of Finance and Administration for IDOT, asking if Millette thought that Moss should be fired for supporting the political opposition. Millette answered yes and told Miller to start preparing the necessary paperwork.

A few months later, Scott Doubet replaced Miller. As far as this record shows, the two men never discussed Moss's situation. But around that time a legislative liaison for the Blagojevich administration told Doubet to find a job for Joe Athey, whom Moss describes as a political loyalist for the Blagojevich team. Doubet looked around and decided to give Athey the job of Chief of the Highway Sign Shop. Millette and Timothy Martin, the Secretary of IDOT, signed off on Doubet's decision. Moss was fired on April 26, 2004, and Athey replaced him. Moss responded with this suit, which he filed against Martin (in both his individual and official capacities), Millette, and another IDOT employee. Gary Hannig, the current Secretary of the Department, has been substituted for Millette with respect to the official capacity claims.

II

As we noted above, the First Amendment claim in Moss's case survived one round of appeal. Back in the district court, the parties filed cross-motions for summary judgment. Defendants' motion relied on qualified immunity, and so that is what the district court focused on. It recognized that there are two elements of a qualified immunity claim-first, that the defendants violated Moss's constitutional rights, and second, that those rights were clearly established at the time the defendants acted-and that it had discretion to address the second element first. See Pearson v. Callahan, --- U.S. ----, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Finding that judicial economy would be promoted by doing so in Moss's case, the court put to one side the question whether the defendants had violated Moss's First Amendment rights and moved immediately to the issue whether they had done so in disregard of clearly established law.

The undisputed evidence, the court found, showed that the defendants, all from IDOT, relied on the decision of CMS to classify the position of Chief of the Highway Sign Shop as Rutan-exempt when they decided to fire Moss. CMS had made that designation in 1992, long before Moss took the position, at a time when Illinois had a Republican governor, and long before the Blagojevich administration took office. The court found that there was no rule requiring the IDOT personnel to second-guess the job description that CMS was using. In fact, the court concluded that even the decision in Riley v. Blagojevich, 425 F.3d 357 (7th Cir.2005), which was handed down after the events in this case, supported the idea that political leaders were entitled to rely on existing state personnel descriptions unless the job description is systematically unreliable. Moss urged that he was eligible for the latter exception (disregarding the timing problem), but he presented no evidence that an unreliable process was used to develop the description for his position. The court also noted that the employing agency-here, IDOT-did not have the authority to change a designation by CMS that a position was Rutan-exempt. It also observed that none of the defendants independently evaluated Moss's position to determine whether political affiliation was a proper consideration for job actions.

III

A

Moss urges that the position of Chief of the Highway Sign Shop is too low on the totem pole to be classified as Rutan-exempt. This is the question that the district court did not reach, but because the inquiry into how clearly established these rules are touches on the underlying issue, we take a moment to discuss it.

The First Amendment prohibits a state employer from terminating the employment of a worker on the basis of her political beliefs unless political affiliation is an appropriate requirement for the position. See Gunville v. Walker, 583 F.3d 979, 983-84 (7th Cir.2009) (citing Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980)). The only serious question here is whether Moss's job was one in which political affiliation was a valid consideration. The record is clear that he was a member of the Republican Party and that Millette knew this fact. Whether any of the other defendants knew is less clear.

The state argues that the exchange between Millette and Miller at the end of 2003 more or less dissipated, and nothing came of it. Miller testified that he was not sure what became of the paperwork he initiated to fire Moss. Only after Doubet took office and the legislative liaison approached him, looking for a job for Athey, did Moss finally lose his job. This, the state says, places an intervening cause between Millette and Miller's plan and the actual firing.

Moss counters that Millette hired Athey only to please the Democratic administration. Unfortunately, there is little evidence to back up this assertion. All Moss has is Doubet's testimony that he told Millette and Martin that a legislative liaison in the administration had recommended Athey for a job. Doubet speculated that the liaison may have wanted to place Athey there because of his loyalty to the administration, but there is no evidence to substantiate that theory. For all anyone knows, Athey's appointment may have been motivated by nepotism, or by the desire to please a particularly powerful Republican legislator. If it were the latter, then Moss would be out of luck. He cannot succeed unless he can show that he was replaced by someone with different ideological beliefs. See Hall v. Babb, 389 F.3d 758, 765 (7th Cir.2004). Even taking the evidence in the light most favorable to Moss, as we must on summary judgment, it is hard to find a genuine factual dispute on the question whether Millette's decision to hire Athey was based on Athey's political loyalties. Cf. Cusson-Cobb v. O'Lessker, 953 F.2d 1079, 1081 (7th Cir.1992) (rejecting plaintiff's unsubstantiated claim that savvy government officials knew that she was a Republican because she had been appointed by the last administration).

The record nevertheless might permit a fact-finder to decide that Millette agreed to fire Moss because of Moss's active role in the local Republican party. When Doubet...