Pleva v. Norquist

• Decision Date: 26 October 1999
• Docket Number: No. 99-1378,99-1378
• Citation: 195 F.3d 905
• Parties: (7th Cir. 1999) Ronald E. Pleva, Plaintiff-Appellant, v. John O. Norquist, individually and as Mayor of Milwaukee, William Christofferson, individually and as Chief of Staff to the Mayor of Milwaukee, Board of Zoning Appeals of the City of Milwaukee, et al., Defendants-Appellees
• Court: U.S. Court of Appeals — Seventh Circuit

Page 905

195 F.3d 905 (7th Cir. 1999)

Ronald E. Pleva, Plaintiff-Appellant, v. John O. Norquist, individually and as Mayor of Milwaukee, William Christofferson, individually and as Chief of Staff to the Mayor of Milwaukee, Board of Zoning Appeals of the City of Milwaukee, et al., Defendants-Appellees.

No. 99-1378

United States Court of Appeals, Seventh Circuit

Argued September 17, 1999

Decided October 26, 1999

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 98-C-0202--Myron L. Gordon, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Bauer, Flaum and Ripple, Circuit Judges.

Flaum, Circuit Judge.

Ronald E. Pleva appeals the district court's dismissal of his claims brought under 42 U.S.C. sec. 1983; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. sec. 621 et seq.; and state tort law in connection with the termination of his tenure on the Milwaukee Board of Zoning Appeals (the "Board" or "BOZA"). For the reasons stated herein, we affirm.

I. BACKGROUND

Because this matter comes to us from a dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), we take the facts presented by Pleva in his complaint as true for purposes of this opinion. Zinermon v. Burch, 494 U.S. 113, 118 (1990).

The Milwaukee Board of Zoning Appeals consists of five members who are appointed by the mayor and approved by the Common Council (the "Council"). The mayor designates one member to be Chairperson, and the Board may select a member to serve as Administrative Officer. BOZA members serve for three-year terms and may be reappointed at the discretion of the mayor. BOZA members who are not reappointed continue to serve on the Board in a "hold-over" capacity until their replacements are confirmed by the Council.

Ronald Pleva served on Milwaukee's BOZA for 22 years, from 1975 to 1997. He was appointed Chairperson in 1975 and designated Administrative Officer in 1988. Mayor Norquist was elected in 1988 and in 1990 expressed his intention not to reappoint Pleva to the Board. The Common Council indicated that it would not approve a replacement for Pleva, so that he would continue to serve on the Board indefinitely, in spite of the mayor's refusal to reappoint him. The mayor then reappointed Pleva.

Sometime during the next seven years, Pleva was called to a meeting with the mayor and community members involved in the real estate business. At this meeting it is alleged that the mayor solicited campaign contributions and stated that he would sometimes make decisions for the Board. Also during this time, it is further alleged that Pleva was contacted by members of the mayor's staff who instructed him to vote according to the mayor's wishes on some matters. Pleva refused to submit to the political influence of the mayor.

In a May 28, 1997 letter, Mayor Norquist informed Pleva that he was being replaced as BOZA Chairperson and would not be reappointed to the Board when his term expired in June. The mayor stated that he was taking this action because he disagreed with Pleva's policies regarding zoning decisions. The letter also stated that Pleva discouraged development in the city, did not deliver decisions in a reasonable amount of time and failed to treat applicants with efficiency, fairness and courtesy. Furthermore, the letter claimed that Pleva improperly conducted Board meetings "behind closed doors."¹ This letter was quoted in the May 29 Milwaukee Journal Sentinel. During the following month, several members of the mayor's staff also made remarks that were reported in the local media regarding Pleva's service on the Board. They accused Pleva of being a "crony" of the Common Council president, who they alleged improperly influenced Pleva's vote on BOZA. Members of the city government were also quoted as claiming that Pleva recommended boxing up old open files and putting them in the basement and that he authorized the alteration of documents after they had been notarized. Pleva alleges that all of these statements were false and damaged his reputation.

Pleva's term expired at the beginning of June. Although the mayor did not reappoint him, he continued to serve on the Board as a "hold-over" member. At the June 19, 1997 BOZA meeting, the Board appointed a new Administrative Officer to replace Pleva. The subject of appointing a new Administrative Officer was not on the agenda for the meeting, and Pleva had no notice that this issue would be a topic for discussion and vote. During this meeting, which was televised on a local station, a Board member made references to the allegations of wrongdoing by Pleva and indicated that an investigation was either ongoing or should be started. In addition, a member of the mayor's staff told Pleva "you don't want to spend the rest of your days doing this." The Board began to refuse to hold meetings while Pleva was serving on it as a "hold-over." In spite of its earlier threat, the Council approved Pleva's successor on October, 14, 1997, and Pleva's tenure on the Board came to an end.

Pleva filed a claim in federal district court for the Eastern District of Wisconsin under 42 U.S.C. sec. 1983, alleging that Mayor Norquist's politically motivated decisions to reassign the position of Chairperson and not to reappoint Pleva to BOZA violated his First and Fourteenth Amendment rights. Pleva also filed a claim under the ADEA, 29 U.S.C. sec. 621 et seq. alleging that the failure to reappoint him was due to his age. Finally, Pleva filed state law claims for breach of contract, tortious interference with contract, defamation, conspiracy to injure reputation, and civil conspiracy.

The district court dismissed Pleva's federal claims and state contract claims under F.R.C.P. 12(b)(6) for failure to state a claim. The court found that Pleva's positions on the Board were policymaking positions and that the mayor's decision not to reappoint him for political reasons did not violate either his First or Fourteenth Amendment rights. The district court further found that as a policymaker Pleva was not covered under the protections of the ADEA. The district court also dismissed Pleva's contract and tortious interference claims because the court found that no contract existed between the city and Pleva. Finally, the district court declined to exercise supplemental jurisdiction over the remaining state law claims for defamation and conspiracy and dismissed those claims without prejudice. Pleva now appeals.

II. DISCUSSION

A. Standard of Review

The district court dismissed Pleva's claims on a 12(b)(6) motion for failure to state a claim. We review dismissals under 12(b)(6) de novo. City Nat'l Bank of Fla. v. Checkers, Simon & Rosner, 32 F.3d 277, 281 (7th Cir. 1994). A complaint is properly dismissed under 12(b)(6) if looking only at the pleadings, taking all the facts alleged by the plaintiff to be true, and construing all inferences in favor of the plaintiff, the plaintiff fails to state a claim upon which relief can be granted. McMath v. City of Gary, Ind., 976 F.2d 1026, 1031 (7th Cir. 1992); Mosley v. Klincar, 947 F.2d 1338, 1339 (7th Cir. 1991).

B. 42 U.S.C. sec. 1983

A person states a claim under 42 U.S.C. sec. 1983 if he alleges that the defendant deprived him of a constitutional right while acting "under color" of state law. Pleva alleges that Mayor Norquist was acting under color of state law when he made the decision not to reappoint Pleva to the Board for political reasons and that this action violated his First and Fourteenth Amendment rights. Appellees do not contest that Mayor Norquist was acting under color of law when he did not reappoint Pleva. Rather, they contend that Pleva's constitutional rights were not violated.

1. First Amendment

Generally, the First Amendment protects a person from being removed from public employment for purely political reasons.² Elrod v. Burns, 427 U.S. 347, 356, 363 (1976). However, there are certain types of public employment where political belief or affiliation may be an appropriate job requirement, and the First Amendment does not bar dismissal on political grounds. Branti v. Finkel, 445 U.S. 507, 517 (1980). These exemptions from the patronage dismissal ban are allowed on the theory that "a newly elected administration has a legitimate interest in implementing the broad policies it was elected to implement without interference from disloyal employees." Matlock v. Barnes, 932 F.2d 658, 662 (7th Cir. 1991); see also Grossart v. Dinaso, 758 F.2d 1221, 1226 (7th Cir. 1985) ("Elected officials must be able to rely on the political loyalty and compatibility of a policymaking civil servant in order to seize the reigns [sic] of government and realize their electoral mandate."). While exempted positions are typically classified as "policymaking" or "confidential," Elrod, 427 U.S. at 367-68; see also Elrod, 427 U.S. at 375 (Stewart, J., concurring), mere labels are not sufficient to determine which employees may have their livelihood depend on political patronage. Branti, 445 U.S. at 518. The First Amendment tolerates political dismissals only where the practice furthers "some vital government end by a means that is least restrictive of freedom of belief and association . . . ." Elrod, 427 U.S. at 363. In order to determine whether a position is exempted, we must go beyond labels to consider the "nature of the responsibilities" of the position in question. Id. at 367.³

The question of whether a position is exempted from the First Amendment patronage dismissal ban is a factual one that should ordinarily be left for a jury to determine. Matlock, 932 F.2d at 663, 665 (finding determination of plaintiff's policymaking and confidential status properly left to jury); Soderbeck v. Burnett County, Wis., 752 F.2d 285, 288-89 (7th Cir. 1985) (finding that when the question of whether a position involves policymaking is "sufficiently uncertain"...