Rice v. Ohio Dept. of Transp.

• Citation: 887 F.2d 716
• Decision Date: 13 October 1989
• Docket Number: No. 86-3312,86-3312
• Parties: 51 Empl. Prac. Dec. P 39,412 Edward E. RICE, Plaintiff-Appellant, v. OHIO DEPARTMENT OF TRANSPORTATION; David L. Weir, Director, Ohio Department of Transportation; and Patrick McCray, Deputy Director, Administrative Affairs, Ohio Department of Transportation, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 716

887 F.2d 716

51 Empl. Prac. Dec. P 39,412

Edward E. RICE, Plaintiff-Appellant, v. OHIO DEPARTMENT OF TRANSPORTATION; David L. Weir, Director Ohio Department of Transportation; and Patrick McCray Deputy Director, Administrative Affairs, Ohio Department of Transportation, Defendants-Appellees.

No. 86-3312.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 17, 1989.

Decided Oct. 13, 1989.

Andrew J. Ruzicho (argued), Columbus, Ohio, for plaintiff-appellant.

David A. Kopech (argued), Columbus, Ohio, for defendants-appellees.

Before MARTIN and NELSON, Circuit Judges, and CONTIE, Senior Circuit Judge.

DAVID A. NELSON, Circuit Judge.

This is a federal civil rights action brought by an employee of the Ohio Department of Transportation who alleged that he was passed over for promotion on the basis of considerations that were illegal under the First and Fourteenth Amendments. One of these considerations, the plaintiff claimed, was his failure to engage in political activity on behalf of the party that was in power at the time he was denied promotion.

The district court entered summary judgment for the defendants. Our disposition of the ensuing appeal was deferred pending consideration by the full court of the issues presented in Messer v. Curci, 881 F.2d 219 (6th Cir.1989) (en banc), a case similar to this in certain respects. The panel renewed its deliberations in the present case following issuance of the decision in Curci, and for the reasons explained below we now affirm the judgment of the district court.

I

The plaintiff, Edward E. Rice, has been an employee of the Ohio Department of Transportation since 1969. For some time before the present action was filed in December of 1982, Mr. Rice held the position of Personnel Officer III at the Department's District 8 office in Lebanon, Ohio. The position is a "classified" one under the Ohio civil service laws.

In September of 1976 Mr. Rice filed a reverse sex discrimination charge against the Department before the Ohio Civil Rights Commission. The charge was resolved amicably. In August of 1981 a departmental employee who was an Administrative Assistant IV took a leave of absence, creating a temporary vacancy. On August 24, 1981, Mr. Rice was notified that he was receiving a temporary promotion to fill the administrative assistant position, which was "unclassified." Three days later Mr. Rice's supervisor rescinded the temporany promotion on orders from his superiors.

In due course it developed that the previous administrative assistant would not return from his leave of absence. A permanent vacancy was declared, and Mr. Rice made known his interest in filling it. The job went instead to one Andrew Siehl, the son of the Republican county chairman of Preble County, Ohio. Andrew Siehl was 26 years old. Mr. Rice was approximately twice that age.

Mr. Siehl took a temporary leave of absence in August of 1982, and he was replaced by another young man, James Fife. Plaintiff Rice was allegedly told by his supervisor that he (Rice) had been passed over because of his earlier sex discrimination charge and because he had failed to give enough money to the Republican Party.

Mr. Rice thereupon brought suit against the Department, its director, and its deputy director, asserting claims under the Age Discrimination in Employment Act and under 42 U.S.C. Secs. 1983 and 1985. The defendants moved for summary judgment. The district court denied the motion with respect to the age discrimination claim (the only claim asserted against the Department), but the court granted summary judgment for the director and deputy director on the other claims. The age discrimination claim was subsequently dismissed by stipulation, making this appeal possible.

II

We first address Mr. Rice's claims under 42 U.S.C. Sec. 1983. That statute provides, in pertinent part, as follows:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

Insofar as the director and deputy director were acting in their official capacities, it is now clear that they, like the state itself, were not "persons" within the meaning of Sec. 1983:

"Obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. Brandon v. Holt, 469 U.S. 464, 471, 105 S.Ct. 873, 877, 83 L.Ed.2d 878 (1985). As such, it is no different from a suit against the State itself. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165-166, 405 [sic] S.Ct. 3099, 3104-3105, 87 L.Ed.2d 114 (1985); Monell [v. New York City Dept. of Social Services, 436 U.S. 658,] 690, n. 55, 98 S.Ct. [2018,] 2035, n. 55 [56 L.Ed.2d 611 (1978) ]. We see no reason to adopt a different rule in the present context, particularly when such a rule would allow petitioner to circumvent congressional intent by a mere pleading device.

We hold that neither a State nor its officials acting in their official capacities are 'persons' under Sec. 1983."

Will v. Michigan Dept. of State Police, --- U.S. ----, ----, 109 S.Ct. 2304, 2311-12, 105 L.Ed.2d 45 (1989) (footnote omitted).

Although the complaint filed by Mr. Rice alleges at one point that the individual defendants were acting both "in their official and personal capacities," the record does not suggest in any way that the defendants' actions were somehow unofficial. The capacity in which the individual defendants were in fact acting is what matters, not the capacity in which they were sued; congressional intent is not to be circumvented, Will says, "by a mere pleading device." But even if we were to assume that the defendants acted in a personal capacity--and the district court made no finding on this point--we are persuaded, for reasons to which we now turn, that there could be no recovery here.

A

Mr. Rice contends that the defendants' consideration of political factors in deciding not to promote him violated his free speech rights under the First Amendment, as incorporated in the Fourteenth Amendment. At the time the district court rendered its decision, the law in this area was in a state of some uncertainty. Unable to find any Sixth Circuit authority directly on point, the district court analyzed a number of district court opinions, including Messer v. Curci, 610 F.Supp. 179 (E.D.Ky.1985), and Avery v. Jennings, 604 F.Supp. 1356 (S.D.Ohio 1985). On the strength of those opinions, among others, the district court concluded that the First Amendment, as interpreted 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), prohibits only the firing of public employees for political reasons, and does not prohibit refusals to hire for political reasons.

Subsequent to the district court's decision, both Avery and Messer became the subject of opinions by this court. In Avery v. Jennings, 786 F.2d 233 (6th Cir.), cert. denied, 477 U.S. 905, 106 S.Ct. 3276, 91 L.Ed.2d 566 (1986), we said that "the first amendment prohibits official hiring policies based solely on political affiliation," and we interpreted Elrod and Branti as condemning, on constitutional grounds, "a patronage system that intentionally uses a strict political test as the standard for hiring or firing decisions." 786 F.2d at 234 and 237. Sitting en banc, however, we departed from Avery in Messer v. Curci, 881 F.2d 219 (6th Cir.1989). Messer draws a sharp distinction between politically motivated firings and other types of personnel decisions--failure to hire or rehire, e.g.--based on political considerations. As far as hiring decisions are concerned, we held, the "allegation of political patronage ... standing alone, does not state a claim for violation of 42 U.S.C. Sec. 1983...." Id. at 220.

Messer is controlling here. We see no meaningful distinction, in the present context, between a failure to promote and a failure to hire or rehire. Assuming Mr. Rice's allegations of political motivation are correct, the defendants' decision not to promote Mr. Rice was the product of precisely the sort of "preference for political supporters in government employment" that we found constitutionally permissible in Messer. Id. at 223. Under Messer, the district court's decision to dismiss this claim was clearly correct.

B

Mr. Rice raises a second claim under Sec. 1983, based on the theory that the decision not to promote him was taken partly in retaliation for his filing of the sex discrimination claim in 1976. Such retaliation, Mr. Rice contends, is unconstitutional.

The district court rejected this contention in reliance on Day v. Wayne County Board of Auditors, 749 F.2d 1199 (6th Cir.1984). That case held that an action to vindicate rights secured by Title VII of the Civil Rights Act of 1984 must be brought under that statute, and not under Sec. 1983. Unlike the plaintiff in Day, Mr. Rice has not brought his Sec. 1983 retaliation claim to vindicate rights secured by Title VII; he seeks to vindicate rights he says are secured by the First Amendment to the Constitution. We pointed out in Day that a public employee "may sue ... under both Title VII and Sec. 1983 when the Sec. 1983 violation rests on a claim of infringement of rights guaranteed by the Constitution." Id. at 1205 (citing Grano v. Department of Development, 637 F.2d 1073 (6th Cir.1980)). Day is therefore not controlling in this case.

We are called upon here to decide whether the First Amendment itself, as made applicable to the states by the Fourteenth Amendment, prohibits the withholding of...