McCrerey v. Allen, 96-1880

• Decision Date: 08 July 1997
• Docket Number: No. 96-1880,96-1880
• Parties: Peggy S. McCREREY, Plaintiff-Appellant, v. Ray ALLEN, Jr.; Jack Kotvas, in his individual capacity, Defendants-Appellees, and Commonwealth of Virginia, Department of Professional and Occupational Regulation, Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 242

118 F.3d 242

Peggy S. McCREREY, Plaintiff-Appellant, v. Ray ALLEN, Jr.; Jack Kotvas, in his individual capacity,

Defendants-Appellees,

and

Commonwealth of Virginia, Department of Professional and

Occupational Regulation, Defendant.

No. 96-1880.

United States Court of Appeals, Fourth Circuit.

Argued March 6, 1997.

Decided July 8, 1997.

ARGUED: Rodney Alan Smolla, Marshall-Wythe School of Law, College of William & Mary, Williamsburg, VA, for Appellant. Guy Winston Horsley, Jr., Senior Assistant Attorney General, Office of the Attorney General, Richmond, VA, for Appellees. ON BRIEF: Gerald T. Zerkin, Melanie A. Hopper, Barbara J. Hughes, Gerald T. Zerkin & Associates, Richmond, VA, for Appellant. James S. Gilmore, III, Attorney General of Virginia, Catherine C. Hammond, Deputy Attorney General, Neil A.G. McPhie, Senior Assistant Attorney General, Office of the Attorney General, Richmond, VA, for Appellees.

Before RUSSELL, HALL, and NIEMEYER, Circuit Judges.

Affirmed by published opinion. Judge HALL wrote the opinion, in which Judge RUSSELL and Judge NIEMEYER joined.

OPINION

K. K. HALL, Circuit Judge:

In this civil rights action against her former supervisor and the person hired to fill her position at a state agency, Peggy S. McCrerey claimed that the decisions to fire and replace her were politically motivated and that her First Amendment rights were thereby violated. The district court granted summary judgment to the defendants, and we now affirm.

The Virginia Department of Professional and Occupational Regulation (DPOR) oversees eighteen regulatory boards, the members of which are appointed by the governor. DPOR sets regulatory policy, administers regulations, provides staff support for the various boards, and serves as a liaison between the boards and the governor. McCrerey had been DPOR's Administrator for Regulatory Programs for two and a half years when she was fired in July 1994 by Ray Allen, who had recently been appointed director of DPOR. A new position of Chief Deputy Director was then created and posted, but McCrerey was not one of the two people interviewed for the position. Instead, the job went to Jack Kotvas, who had been active in the campaign of the then recently elected Republican governor. McCrerey is not active in any political party.

McCrerey sued, claiming that her termination and Kotvas's hiring were politically motivated. In ruling on the defendants' motion for summary judgment, the district court assumed the claimed political motive behind both of the job decisions. However, the court also found that political affiliation was an "appropriate requirement" for the jobs in question and, therefore, that the patronage employment decisions at issue were not unlawful under the Elrod-Branti doctrine. ¹ McCrerey v. Allen, 925 F.Supp. 1123 (E.D.Va.1996). McCrerey appealed. ²

Notwithstanding Allen's and Kotvas's arguments, both below and on appeal, that the disputed personnel decisions were based on merit, we agree with the district court that it must be assumed for summary judgment purposes that McCrerey's lack of Republican Party affiliation was a significant factor in both employment decisions. See id. at 1135-36. In accordance with Branti, 445 U.S. at 518, 100 S.Ct. at 1294, the district court shifted its focus to whether the State had met its burden of demonstrating that political affiliation was an "appropriate requirement for the effective performance" of the positions at issue and decided that the burden had been met. 925 F.Supp. at 1136.

Except for some isolated statements in the "Statement of Facts" section of her opening brief, McCrerey has made no effort to explain why political affiliation might not be an "appropriate requirement" for either position, and she does not argue on appeal that the district court erred in finding that the two positions in question "involve[d] issues on which there is room for political disagreement on goals and their implementation." Id. Her only argument is that the State cannot on the one hand declare through its legislature that political considerations should not enter into personnel decisions about a given job, and then, on the other hand, violate that same law and be heard to argue that, as a matter of fact, political affiliation is indeed an "appropriate requirement" for that same job.

The district court considered the state law--"Although neither state policy nor state law defining a position as requiring--or not requiring--partisan political affiliation controls the Elrod-Branti analysis, it is a factor to consider in assessing whether a position is within the protective ambit of the doctrine" (925 F.Supp. at 1137 (citations omitted))--but ruled that "the factors which the federal constitutional analysis must take into account override the countervailing influence of the state law and policy statements on which McCrerey relies." Id. at 1139. However, McCrerey wants more than deference or a presumption accorded the state anti-patronage law; she contends that the agency's violation of state law in her case effectively precludes a judgment in the State's favor.

McCrerey explains that she does not mean to assert that "state law is legally determinative, but that where state law unambiguously renounces any relevant state interest, it leaves the State with an insurmountable evidentiary hurdle." Appellant's brief at 24 n. 5 (emphasis in original). This evidentiary slant was apparently not articulated as such below, although the district court culled an analogous...