Shondel v. McDermott

• Decision Date: 31 October 1985
• Docket Number: Nos. 84-1982,84-2862,s. 84-1982
• Citation: 775 F.2d 859
• Parties: Donna SHONDEL and Mark J. McKechnie, Plaintiffs-Appellants, v. Thomas M. McDERMOTT, individually and as Mayor of the City of Hammond, Indiana, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 859

775 F.2d 859

Donna SHONDEL and Mark J. McKechnie, Plaintiffs-Appellants, v. Thomas M. McDERMOTT, individually and as Mayor of the City of Hammond, Indiana, et al., Defendants-Appellees.

Nos. 84-1982, 84-2862.

United States Court of Appeals Seventh Circuit.

Argued April 18, 1985.

Decided Oct. 28, 1985.

As Amended Oct. 31, 1985.

Robert G. Berger, Highland, Ind., for plaintiffs-appellants.

Charles A. Myers, Mchie, Myers & Mchie, Hammond, Ind., for defendants-appellees.

Before CUDAHY and POSNER, Circuit Judges, and PELL, Senior Circuit Judge.

POSNER, Circuit Judge.

Donna Shondel and Mark McKechnie, former employees of Hammond, Indiana, sued the mayor of Hammond (McDermott), other city officials, and city agencies, under section 1 of the Civil Rights Act of 1871 (now 42 U.S.C. Sec. 1983), charging that the defendants had violated the plaintiffs' rights under the First Amendment, as held applicable to state action by virtue of the Fourteenth Amendment. The plaintiffs asked for a preliminary injunction, which was denied. They have appealed from the denial, as they are entitled to do, under 28 U.S.C. Sec. 1292(a)(1).

Mrs. Shondel had been hired as a receptionist in the city's Department of Planning and Development at a time when Mayor McDermott's predecessor, Raskosky (a Democrat--McDermott is a Republican), was in office. She had learned about the opening from her stepfather, Adam Kwolek, the Superintendent of Parks. Her job was a civil-service job, not a patronage job. The district judge found that "she did not obtain her job because of political influence or because of her political activities or beliefs"; she got it by passing a test. Although not a prominent political figure or especially active in the campaign fight between Raskosky and McDermott, Mrs. Shondel attended some of Raskosky's fund-raising affairs and did some minor work at his political headquarters. After McDermott took office he reorganized the city government and as a result of the reorganization a number of employees were fired including Mrs. Shondel. Although the ostensible reason for the reorganization was to increase efficiency, an incautious memo from a lawyer who was advising the new administration suggests that the reorganization was a figleaf to conceal political firings. The memo proposes "a massive shake-up of the structure of the City Administration along with an overriding justification of cutting expenses.... [W]hen you shake up the city administration or re-align city administration, reform it, you suddenly eliminate jobs of people that you really want to get rid of.... [M]ake sure that when you eliminate the jobs of people you want to get rid of, you also eliminate the jobs of a few of the people that supported McDermott so that you can later point to that as evidence that the overriding or motivating factor in eliminating those jobs was not political affiliation but rather was the reason which McDermott would be giving to the public."

The district judge rejected any suggestion that Mrs. Shondel had been (in his words) "terminated for any political activity on her part." The "only apparent basis for her claim of wrongful termination is that she is a stepdaughter of Adam Kwolek." McDermott had said during the campaign that he would fire Kwolek because Kwolek was one of the two or three "lousiest" of Raskosky's department heads; and he did fire him. The judge thought it unnecessary to decide whether Mrs. Shondel had been fired to further punish Kwolek; it was enough that she had not been fired because of her own activities on Raskosky's behalf during the campaign, activities too insignificant to have brought such retribution upon her head--as she herself had testified. Although there is considerable doubt whether Mayor McDermott even knew that Mrs. Shondel is Kwolek's stepdaughter, other defendants may have known, but again this is not a matter on which the district judge made any findings.

Mark McKechnie, the other plaintiff, was the city's Transportation Coordinator under Raskosky. He supervised the city's bus system, which is supported in part by federal grants, and he was an active supporter of Raskosky during the mayoral campaign. In addition to attending fund-raising affairs, working one night a week at Raskosky headquarters, wearing an "Eddie" (Raskosky) button, and displaying a Raskosky bumper sticker on his car, McKechnie displayed Raskosky's name prominently on city buses (without charge to Raskosky's campaign) and also joined with Mayor Raskosky in a "walking campaign" between 10:00 a.m. and 2 p.m. on many weekdays.

After the election the new mayor fired McKechnie, ostensibly to save money. The district judge made no finding on the real motive for the firing. His ground for refusing to grant a preliminary injunction reinstating McKechnie was that McKechnie had "unclean hands." Although none of the defendants had argued "unclean hands" or put in evidence directed to the question, the judge on his own initiative found that "it appears likely" that McKechnie had violated the Hatch Act, 5 U.S.C. Secs. 1501-1508. Well known as a limitation on the political activities of federal employees, the Hatch Act also contains a little-known provision forbidding "an individual employed by a state or local agency whose principal employment is in connection with an activity which is financed in whole or in part by loans or grants made by the United States or a Federal agency" to "use his official authority or influence for the purpose of ... affecting the result of an election or a nomination for office." 5 U.S.C. Secs. 1501(4), 1502(a)(1). (The Act places tighter restrictions on the political activities of federal employees.) There seems to be no question that McKechnie's job brought him within the scope of the provision, but it is less clear whether he actually violated it. Apparently the district judge's concern was with the painting of Mayor Raskosky's name on the bus, an arguable use of McKechnie's official authority to influence the campaign; but the judge did not address McKechnie's argument that the painting was normal publicity for the mayor, unrelated to the campaign. The judge seems not to have been concerned with the walking campaign, and this is understandable. It is unclear whether McKechnie identified himself as a city official on these walks. And even if he was campaigning when he should have been working--which is also unclear, because he contends that the time he spent in the walking campaign was compensatory time off for earlier overtime work, and the judge made no finding on this issue--it is a little hard to see how that by itself would be the use of official authority or influence. But we shall not have to get deeper into this thicket, except to note that no proceedings have been brought against McKechnie for violation of the Hatch Act.

The firings of the two plaintiffs raise distinct issues. We begin with Mrs. Shondel. We accept as not clearly erroneous the judge's finding that she was not fired because of her political activities or, it appears, beliefs. But we must also accept for purposes of this appeal, since there is some support for the contention and the judge made no finding on it, that she was fired because her stepfather was a political opponent of the new mayor.

We do not know why Kwolek was fired--whether for incompetence, or because of his association with the old mayor--but shall assume for argument's sake that his firing was based entirely on political grounds. If we further assume, again for the sake of argument, that he was neither a policy-making nor a confidential employee and therefore could not, consistently with the First Amendment, be fired on political grounds, it could be argued--we shall not have to decide how strongly--that Mrs. Shondel made out a violation of the First Amendment even though she was not fired because of her own political activities or beliefs.

The purpose of making the firing of a public employee because of his political beliefs a violation of the First Amendment, see Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), is to ensure that such employees are not deterred from exercising their rights under the First Amendment; and a Kwolek might be deterred if he knew that his stepdaughter would lose her job as a result. One way to prevent this would be to allow him to claim, as part of his damages for being fired, the cost to him of his stepdaughter's losing her job. The analogy would be to the tort claim of a parent whose child is killed in an accident as a result of someone's negligence. But the analogy would be imprecise. If a child is killed, a minimum estimate of the loss to the parents can be based on the time and money that the parents expended on raising the child; they would not have incurred these costs had they not anticipated offsetting benefits. See, e.g., Wycko v. Gnodtke, 361 Mich. 331, 339, 105 N.W.2d 118, 122 (1960); Breckon v. Franklin Fuel Co., 383 Mich. 251, 268, 174 N.W.2d 836, 842 (1970); cf. Pottick, Tort Damages for the Injured Homemaker: Opportunity Cost or Replacement Cost?, 50 U.Colo.L.Rev. 59 (1978). But if a child, particularly a grown child, whose earnings are his own, merely loses a job, the loss to the parents is very hard to determine unless the child becomes financially dependent on them, and there is no suggestion of anything of that sort here. There is a loss, because the child's welfare is part of the parents' welfare, see, e.g., CBI Industries, Inc. v. Horton, 682 F.2d 643, 645-46, 647 (7th Cir.1982); Becker, A Treatise on the Family (1981), but not a loss that can be given a money value by any methods known to the law. In these circumstances there is an argument for allowing the child, or, here, the stepchild to sue, in order to discourage the subtle type of retaliation for exercising First Amendment rights that consists...