McCabe v. Sharrett

• Decision Date: 07 February 1994
• Docket Number: No. 92-4582,92-4582
• Citation: 12 F.3d 1558
• Parties: 63 Empl. Prac. Dec. P 42,828 Ellen D. McCABE, Plaintiff-Appellant, v. C.E. SHARRETT, Jr., Chief of Police, City of Plantation, Florida, City of Plantation, a municipal corporation of the State of Florida, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1558

12 F.3d 1558

63 Empl. Prac. Dec. P 42,828

Ellen D. McCABE, Plaintiff-Appellant, v. C.E. SHARRETT, Jr., Chief of Police, City of Plantation Florida, City of Plantation, a municipal corporation of the State of Florida Defendants-Appellees.

No. 92-4582.

United States Court of Appeals Eleventh Circuit.

Feb. 7, 1994.

Arthur M. Wolff, Ft. Lauderdale, FL, for plaintiff-appellant.

Michael R. Piper, Johnson, Anselmo, Murdoch, Burke & George, P.A., Ft. Lauderdale, FL, for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before ANDERSON and EDMONDSON, Circuit Judges, and DYER, Senior Circuit Judge.

ANDERSON, Circuit Judge:

Ellen McCabe brought this suit against the City of Plantation, Florida (the "City") and Plantation's police chief, C.E. Sharrett, Jr., under 42 U.S.C. Sec. 1983. She claims that defendants have violated her constitutional right to freedom of association by transferring her from her job as secretary to the police chief to a less desirable job on account of her marriage to a Plantation police officer, Joel McCabe. ¹ The district court granted defendants' motion for final summary judgment and denied McCabe's motion for partial summary judgment, and McCabe now appeals. For the following reasons, we affirm the judgment of the district court.

I. FACTS AND PROCEDURAL HISTORY

In March 1982, plaintiff-appellant Ellen McCabe (then Ellen Belmont) assumed the position of secretary to the City of Plantation chief of police. The police chief at that time was Morris Meek. In July 1985, appellant married Joel McCabe, a Plantation police officer who is currently a sergeant assigned to the Field Operations Bureau. In July 1990, Police Chief Meek retired and appellee Sharrett was appointed as his replacement. Ellen McCabe remained as secretary to Police Chief Sharrett until August 7, 1990, when she was transferred to a Clerk Typist position in the Plantation Parks and Recreation Department. McCabe claims that her job transfer constitutes a demotion because her salary is frozen, she is ineligible for a raise for approximately four and one-half years, and her new position involves less responsibility and more menial tasks than her old job. While defendants-appellees deny that McCabe was demoted, they do concede on appeal that for purposes of constitutional analysis she has suffered adverse employment action. Appellees also do not deny McCabe's assertion that she was transferred because she is married to Joel McCabe. Appellee Sharrett asserts that he transferred McCabe because he feared that her marriage would undermine her loyalty to him and her ability to maintain the confidentiality of his office. See R1-23-4 (Affidavit of Plantation Police Chief C.E. Sharrett, Jr.).

On September 19, 1990, Ellen McCabe sued Chief Sharrett and the City of Plantation under 42 U.S.C. Sec. 1983, claiming that they had violated her right to freedom of association by transferring her because of her marriage to Joel McCabe. McCabe moved for partial summary judgment and defendants moved for final summary judgment; both motions were referred to a magistrate judge. The magistrate judge recommended that the district court grant McCabe's motion for partial summary judgment and deny defendants' motion for final summary judgment. See R1-41 (Report of Magistrate Judge Linnea Johnson). The district court, while adopting part of the magistrate judge's report, disagreed with the magistrate judge's recommendation, and granted final summary judgment to Chief Sharrett and the City. See R1-60 (Opinion of District Judge Shelby Highsmith). McCabe now appeals.

II. SUMMARY JUDGMENT STANDARD

A movant is entitled to summary judgment only "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). "The district court should resolve all reasonable doubts about the facts in favor of the non-movant, and draw all justifiable inferences in his [or her] favor." U.S. v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir.1991) (en banc) (internal quotation marks and citations omitted).

III. STANDARD OF REVIEW

We review grants of summary judgment de novo, applying the same legal standard the district court used. Browning v. Peyton, 918 F.2d 1516, 1520 (11th Cir.1990). When reviewing a grant of summary judgment, we may affirm on any adequate ground, regardless of whether the district court relied on that ground. Davis v. Liberty Mutual Ins. Co., 525 F.2d 1204, 1207 (5th Cir.1976) ²; 10 C. Wright et al., Federal Practice & Procedure Sec. 2716, at 658 (2nd ed. 1983).

IV. DISCUSSION

A. McCabe's Claim

McCabe asserts that, by transferring her to the Parks and Recreation Clerk Typist position because of her marriage to Joel McCabe, appellees have infringed her constitutional right to freedom of association. In essence, she argues that appellees have placed an unconstitutional condition on her retaining her position as secretary to the police chief; her claim is that appellees would allow her to keep her job as secretary to Chief Sharrett only on the condition that she relinquish her freedom of association right to be married to Joel McCabe, and that this condition is unjustifiable.

B. The District Court's Decision

The district court concluded that the right McCabe asserts, the right to be married, is a constitutionally protected freedom of association right. See R1-60-7 (District Court Opinion). The district court also determined that McCabe's transfer constituted an adverse employment action and that she would not have been transferred were she not married to Joel McCabe. Id. The district court concluded, however, that McCabe's transfer was justified and that it therefore did not infringe her right to be married. To determine whether McCabe's transfer was justified, the district court employed the balancing test articulated in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Under Pickering, the permissibility of adverse employment action taken against a public employee because of the employee's exercise of a constitutional right is determined by weighing the employee's interest in exercising the right against the government's interest in "promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. at 1734-35. The district court concluded that, in light of "a police chief's need for effective management of the police department, which requires, inter alia, tight control over sensitive information," Chief Sharrett's concern about "the potential breach of confidentiality ... inherent in having a subordinate's wife as his secretary" outweighed McCabe's interest in exercising her association right to be married. R1-60-10 (District Court Opinion). Therefore, the district court granted summary judgment to appellees and denied it to McCabe.

C. Parties' Arguments on Appeal

McCabe contends that the district court erred in granting summary judgment to appellees instead of to her. Of course, she does not contest the district court's conclusion that her right to be married is constitutionally protected nor its determination that appellees demoted her solely because of her marriage to Joel McCabe. However, she argues that the district court should not have applied the Pickering analysis to determine whether her transfer was permissible. She contends that once the district court found that the right to be married was constitutionally protected and that she would not have been transferred were she not married to Joel McCabe, she was entitled to prevail. See Appellant's Brief at 10-17. In other words, she appears to believe that the district court should not have considered whether some governmental interest justified her transfer. Furthermore, even if the district court properly applied the Pickering test, she argues, it should have concluded that the balance weighs in her favor because there were no reasonable grounds to believe that her marriage to Joel McCabe had ever interfered with or would interfere with the effective functioning of Chief Sharrett's office. Id. at 17-24.

Unlike McCabe, appellees believe that the district court properly ruled in their favor. They do not take issue with the district court's conclusion that McCabe's right to be married is a constitutionally protected freedom of association right. See, e.g., Appellees' Brief at 8. Nor do they contest either the district court's determination that McCabe suffered adverse employment action or the district court's finding that McCabe would not have been transferred were she not married to Joel McCabe. See id. at 15. Appellees do agree with McCabe that the district court should not have applied the Pickering analysis to McCabe's claim. They argue that instead of the Pickering test, the district court should have employed the analysis set forth in 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), to determine whether appellees' transferring McCabe was justified. Those cases, appellees claim, stand for the proposition "that where a public employee occupies a position of confidence to a policymaker and concerns over divided loyalties exist, the policymaker may remove the employee from that position without violating the employee's [constitutional] rights." Appellees' Brief at 11. According to appellees, because McCabe was a confidential employee and Chief Sharrett was concerned about her loyalty to him, his firing her was permissible under the Elrod- Branti analysis. Id. at 12-16. However, to the extent that the district court properly concluded that Pickering applies on the issue of justification, appellees argue, it properly found the...