McCloud v. Testa
| Decision Date | 13 February 1997 |
| Docket Number | No. 94-4144,94-4144 |
| Citation | 97 F.3d 1536 |
| Parties | , 12 IER Cases 1833 Bradley L. McCLOUD; Ronald E. Huber; Carol A. Devore; Elsa C. Giammarco; C. Calvin Skaates; Terrence B. Cohen; Gloria Jean Morgan; Vernon E. Hysell; and Teresa L. Tilson, Plaintiffs-Appellees, v. Joseph W. TESTA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
John S. Marshall, Spater, Gittes, Schulte & Kolman (briefed), Columbus, OH, Louis A. Jacobs (argued and briefed), Upper Arlington, OH, for Plaintiffs-Appellees.
Bonnie L. Maxton, Prosecuting Attorney's Office for the County of Franklin (argued), Elizabeth A. Scott and Donald M. Collins (briefed), Columbus, OH, for Defendant-Appellant.
Before: JONES and BOGGS, Circuit Judges; and COFFMAN, District Judge. *
Defendant Joseph W. Testa brings this interlocutory appeal 1 from the district court's refusal to grant his motion for summary judgment on grounds of qualified immunity in this § 1983 political patronage case brought by several dismissed Franklin County, Ohio Auditor's Office employees. We affirm in part and reverse in part.
Testa was appointed to serve out the term of Palmer McNeal as Franklin County, Ohio Auditor 2 in May 1992, after McNeal resigned upon conviction of an abuse of trust offense under Ohio law. McNeal and Testa had been friends, and in fact Testa had once worked for McNeal when the latter was Franklin County Recorder. However, the men are now bitter enemies, as each is currently associated with a different faction of the Franklin County Republican Party. John Walton ("J.W.") Wolfe, the late owner of the Columbus Dispatch, was the originator of one faction. Roger Tracy, himself a former County Auditor, established the other faction. McNeal cast his lot with Tracy, and Testa with Wolfe. The rivalry between the Wolfe and Tracy factions of the Franklin County Republican Party is long-standing and rancorous, but seems to have no particular ideological content. 3 Testa disputes whether these factions exist, claiming that the plaintiffs can offer no objective evidence of the existence of the factions, and argues that his animosity toward McNeal is purely personal. The plaintiffs argue that the rift between Testa and McNeal is not based on pure personal dislike, but on political rivalry, and cite a number of local news reports to buttress this contention.
When Testa became County Auditor he fired a number of workers in the County Auditor's office, nine of whom, including McCloud, are the plaintiffs in this action. The plaintiffs argue that as political associates of McNeal, they were fired by Testa solely because of their affiliation with the Tracy faction of the Franklin County Republican Party. All of the plaintiffs actively campaigned for McNeal, some had earlier campaigned for Tracy, and some were even members of the Franklin County Republican Central Committee.
Testa fired these nine employees by simply calling them during the weekend of May 23-25, 1992 and telling them not come to work the following Monday. The parties do not dispute that Testa had the authority under Ohio law to make this employment determination. Testa maintains that he consulted with other County Auditor's office employees about the responsibilities of the fired workers, sitting down with a brief indication of their functions contained on a telephone list and perhaps their payroll records, in order to decide which workers would be retained in his effort to streamline the office, and which would not. He concedes, however, that he fired some of the workers because they had a "fiduciary" or confidential relationship with former County Auditor McNeal. Testa hints in a number of places in his brief that he was acting out of a perceived need to "clean up" the office's public image in the wake of the McNeal scandal. In conjunction with these hints, Testa claims that he was envisioning that under his leadership all of the positions occupied by the plaintiffs would take on either policymaking or confidential responsibilities 4, implying that a reformer must be able to place complete trust in his lieutenants.
The job responsibilities of each plaintiff, along with Testa's proffered reasons for terminating that person, are listed below:
1. Bradley L. McCloud: McCloud was the former staff attorney in the Auditor's office and his primary function was to represent the County in unemployment compensation hearings. Testa says he fired McCloud because McCloud was a member of McNeal's administrative staff and because under Ohio law the office had the right to call on the Franklin County Prosecuting Attorney for legal assistance, making McCloud's legal services superfluous.
2. Ronald E. Huber: Huber was the real estate division administrator in the office. He was responsible for real estate valuation for property tax purposes. Testa claims he fired Huber because Huber was a confidential and "fiduciary" associate of McNeal, and because the real estate division was the largest in the office, giving Huber significant policymaking duties. Huber supervised over 50 employees and administered a budget of 7-9 million dollars annually.
3. Carol A. Devore: Devore was the automated mapping administrator in the office. She was automating maps of taxable real estate in the county. Testa says he fired her because of her confidential and "fiduciary" relationship with McNeal. 5
4. Elsa C. Giammarco: Giammarco was the administrator of the consumer services division in the Office. She had a grab-bag of responsibilities ranging from issuing dog licenses to administering homestead tax reductions for senior citizens. Testa offers the same confidential and "fiduciary" relationship explanation he offers for firing Devore, but adds that Giammarco was also McNeal's lobbyist to the Ohio General Assembly.
5. C. Calvin Skaates: Skaates was the personal property tax administrator. Skaates distributed, collected and audited property tax returns. Testa says he fired him because of his confidential and "fiduciary" relationship with McNeal.
6. Terrence B. Cohen: Cohen was the former budget and settlement division administrator. He audited the county's political subdivisions. Testa claims he fired him because of his confidential and "fiduciary" relationship with McNeal. Cohen's position was also eliminated when Testa became County Auditor, and his functions were transferred to other office employees.
7. Gloria Jean Morgan: Morgan was the estate tax administrator. Testa claims he fired her because of her confidential and "fiduciary" relationship with McNeal.
8. Vernon E. Hysell: Hysell worked in the estate tax division as a liaison to townships for the office. He was also responsible for inventorying safety deposit boxes. Testa says he fired Hysell because of his confidential and "fiduciary" relation with McNeal. Hysell's functions as township liaison were transferred to other office employees when Testa became County Auditor.
9. Teresa L. Tilson: Tilson was an administrative assistant to former Chief Deputy Auditor Robert Everhart 6, who was the immediate supervisor of the office's Division Administrators. Tilson kept track of the office's payroll and billings. Testa says he fired Tilson because of her confidential relationship to both Everhart's and McNeal's positions.
On July 31, 1992, these plaintiffs brought a § 1983 action against Testa, in both his individual and official capacities, and Franklin County, Ohio for an alleged violation of their First Amendment rights to be free of patronage dismissals. 7 After both sides had engaged in some measure of discovery, Testa moved for summary judgment on a number of grounds. The district court partially granted Testa's motion, but denied summary judgment on the issue of qualified immunity. That denial is the subject of this timely interlocutory appeal.
The parties (mostly Testa) urge on us a number of standards of review and related presumptions, only some of which are germane to this case. A recent Supreme Court case complicates our selection of a standard of review by intermeshing that inquiry with the issue of our jurisdiction over the interlocutory appeal of a denial of qualified immunity. To the extent these two inquiries are separable, we first consider the standard of review and then address the question of jurisdiction.
We start with basics. We review the denial of summary judgment on grounds of qualified immunity de novo because application of this doctrine is a question of law. Mumford v. Zieba, 4 F.3d 429, 432 (6th Cir.1993). As we shall see in our discussion of the various rules cited to us by the parties, this is the only rule relevant to our choice of a standard of review in this case. Nevertheless, because this is a confusing area of the law, we go on to address the other rules invoked by the parties and organize these rules in a useful framework.
Testa points out correctly that he has met his preliminary burden of showing that the plaintiffs' dismissals were within his discretionary authority. Thus, the ultimate burden of proof in this suit is on the plaintiffs, who must establish that Testa's conduct violated a federal right so clearly established that any official in his position would have understood that he was under an affirmative duty to refrain from such conduct. Washington v. Newsom, 977 F.2d 991, 995 (6th Cir.1992). If we were reviewing a summary judgment motion in a non-interlocutory appeal, we would have to give the benefit of the doubt as to any material factual disputes to the plaintiffs. Faughender v. City of North Olmsted, 927 F.2d 909, 911-12 (6th Cir.1991). For reasons we discuss below, however, neither the assignment of the burden of proof to the plaintiffs in this case, nor the commonplace of summary judgment law that...
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