Terry v. Cook

• Decision Date: 12 January 1989
• Docket Number: No. 87-7456,87-7456
• Citation: 866 F.2d 373
• Parties: O'Neal TERRY, Mary Jane Brown,, Steve Strickland, J.D. Hopkins, Amy Henderson, John R. Turner, Dora Latham, Grady Sanderson, Maurice Stovall, Jackie Terry, Sharon Latham, Andrew Allen, Belinda Wilkerson, Joy Suski, Lavon Wallace, Vernon Bradford, James Jett, Harold Smith, Lionel M. Sheffey and Richard Turner, Plaintiffs-Appellants, v. A.C. COOK, individually and in his official capacity as Sheriff of Lawrence County, Alabama; Paul D. Cain, individually and in his official capacity as Chief Deputy Sheriff of Lawrence County, Alabama; Earl "Sonny" Malcom, Jr., Coy Dwight Gray, Ferman Grimes, Randy Waldrep, Larry Louallen, and Mose Jones, Jr., in their official capacities as Chairman and members of the Lawrence County Commission, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 373

866 F.2d 373

O'Neal TERRY, Mary Jane Brown,, Steve Strickland, J.D Hopkins, Amy Henderson, John R. Turner, Dora Latham, Grady Sanderson, Maurice Stovall, Jackie Terry, Sharon Latham Andrew Allen, Belinda Wilkerson, Joy Suski, Lavon Wallace Vernon Bradford, James Jett, Harold Smith, Lionel M. Sheffey and Richard Turner, Plaintiffs-Appellants, v. A.C. COOK, individually and in his official capacity as Sheriff of Lawrence County, Alabama; Paul D. Cain individually and in his official capacity as Chief Deputy Sheriff of Lawrence County, Alabama; Earl "Sonny" Malcom, Jr., Coy Dwight Gray, Ferman Grimes, Randy Waldrep, Larry Louallen, and Mose Jones, Jr., in their official capacities as Chairman and members of the Lawrence County Commission, Defendants-Appellees.

No. 87-7456.

United States Court of Appeals, Eleventh Circuit.

Jan. 12, 1989.

Falkenberry & Whatley, John C. Falkenberry, Birmingham, Ala., Balske & Van

Almen, Dennis N. Balske, Montgomery, Ala., for plaintiffs-appellants.

D.L. Martin, Moulton, Ala., for A. Cook, P. Cain, D. Gray, F. Grimes, R. Waldrep, L. Louallen and M. Jones.

Webb, Crumpton, McGregor, Sasser, Davis & Alley, James W. Webb, Kendrick E. Webb, Montgomery, Ala., amicus curiae on behalf of defendants-appellees.

Morring, Schrimsher & Riley, Sharon D. Hindman, Huntsville, Ala., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before FAY and KRAVITCH, Circuit Judges and ATKINS ^*, District Judge.

ATKINS, District Judge:

This court is presented with the wholesale refusal of a newly elected sheriff to reappoint or rehire any of his predecessor's employees. The complaint alleged that the newly elected sheriff discharged the plaintiffs for political reasons in violation of 42 U.S.C. Sec. 1983, and for racial reasons in violation of 42 U.S.C. Sec. 1981. We affirm the district court's dismissal of the section 1983 claims of the deputy sheriffs but reverse its dismissal of the claims of the clerks, investigators, dispatchers, jailers, and process servers. We affirm the district court's dismissal of the section 1981 claim in its entirety.

The plaintiffs were deputy sheriffs, clerks, investigators, dispatchers, jailers, and process servers under the former sheriff of Lawrence County, Alabama, Dan Ligon. The defendant A.C. Cook defeated Ligon on November 4, 1986, after campaigning on a platform that promised "a change" in administration. Throughout the campaign and prior to assuming office, Cook publicly declared his intention to replace all of Ligon's employees "from the secretary and jailer up to the chief deputy," with persons who supported his election. On January 2, 1987, approximately three weeks prior to the termination of Ligon's term, the plaintiff Terry appeared before the Lawrence County Commission as spokesman for the employees and asked the commission's assistance in preventing Cook's intended housecleaning. At the same meeting, Cook again announced his intention to replace all of the employees who had opposed his election.

The commission requested the opinion of the Alabama Attorney General but, prior to its receipt, confirmed Cook's plan. Cook took office on January 20, and, with his newly appointed chief deputy, defendant Cain, directed a notice to each plaintiff relieving him of his duties.

The plaintiffs sued Sheriff Cook and Chief Deputy Cain in their individual capacities and the sheriff, chief deputy, and the Lawrence County commissioners in their official capacities. The complaint alleged that the plaintiffs were terminated for failure to support Cook in his political race in violation of the First and Fourteenth Amendments. The plaintiffs also alleged a violation of their right to due process because they were released without a pretermination hearing. Plaintiffs Allen, Sheffey, and Stovall further alleged that their discharge was triggered by racial animus in violation of 42 U.S.C. Sec. 1981.

The defendants moved to dismiss the original complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure arguing that the plaintiffs' employment rights expired with the term of the former sheriff. The district court dismissed the complaint and granted the plaintiffs leave to amend to allege with specificity the efforts made to regain their positions.

In the amended complaint, claim one stated generally that some of the plaintiffs had applied directly to Sheriff Cook for reappointment to their former positions and some had applied indirectly through friends or relatives. Several of the plaintiffs alleged that it would have been futile for them to have applied after Cook's statements that he would not consider them for employment. Claim two alleged that Allen, Sheffey, and Stovall were the victims of race discrimination citing Cook's remark that he "didn't care whether he hired any niggers on his staff or not."

Defendants moved to dismiss the amended complaint. The court granted this motion, admonishing the plaintiffs for what it viewed as their failure to delineate which plaintiffs did and which plaintiffs did not reapply for their former positions. The court allowed the plaintiffs to amend their complaint and directed those plaintiffs who had applied directly for employment to state when, how, and for what job or appointment. The court also required that those who had not applied "allege with specificity the exact position in the newly elected sheriff's office which he (or she) would have this Court and jury fictionally presume he (or she) made application."

The plaintiffs' second amended complaint set forth detailed allegations of each plaintiff's attempt to retain or regain positions in Sheriff Cook's administration. The district court found the claims in the second amended complaint subject to the same fatal pleading deficiencies and granted the defendants' motion to dismiss with prejudice.

We must determine whether, considering the facts in the light most favorable to the plaintiffs, it appears beyond doubt that they can prove no set of facts that would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

I. THE SECTION 1983 CLAIM

A. The Appropriate Test

Public employment may not be conditioned upon requirements that violate constitutionally protected interests. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). A public employee's protection is not absolute, however. The court must balance "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. at 1734. Because of the variety of situations in which critical statements may be the basis for discharge of a public employee, there is no general standard for determining in whose favor the balance is struck. Rather, the courts have developed standards which distinguish two types of cases--those involving employee expression and those involving "raw political patronage."

In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), the Supreme Court considered the question of political patronage and weighed the balance in favor of the employees. To maintain their jobs, all of the Sheriff's Office employees were required to pledge their political allegiance to the Democratic party, work for election of Democratic candidates, contribute a portion of their wages to the Democratic party, or obtain the sponsorship of a member of the Democratic party. The plaintiffs, including the Chief Deputy of the Process Division, a process server, bailiff, and security guard, alleged that they had been discharged or threatened with discharge solely because they were not affiliated with or sponsored by the Democratic party. The district court dismissed the complaint for failure to state a claim and the court of appeals reversed. The Supreme Court affirmed in a plurality opinion in which Justice Brennan articulated the standard for weighing the conflicting interests.

In short, if conditioning the retention of public employment on the employee's support of the in-party is to survive constitutional challenge, it must further some vital government end by a means that is least restrictive of freedom of belief and association in achieving that end, and the benefit gained must outweigh the loss of constitutionally protected rights.

427 U.S. at 363, 96 S.Ct. at 2685 (footnote omitted). Justice Brennan found limiting allowable patronage dismissals to policymaking positions to be a sufficient, less restrictive means of achieving government effectiveness and efficiency and of promoting the democratic process. In a brief concurrence, Justice Stewart wrote that "[t]he single substantive question involved in this case is whether a nonpolicymaking, nonconfidential government employee can be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs. I agree with the plurality that he cannot." Id. at 375, 96 S.Ct. at 2690 (citation omitted).

Several years later, the Supreme Court, again faced with the issue of political patronage, balanced the factors in favor of the discharged employees and refined the Elrod analysis. In Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), the Court considered a Democratic Public Defender's discharge of two assistant public defenders because they were Republicans; all assistants retained or appointed were Democrats or were selected by the Democratic legislators or town chairman using criteria that had been outlined by the Democratic caucus. The Court reasoned that, because an assistant public defender's primary responsibility is to represent individual citizens...