Latham v. Office Attorney Gen ( 2005 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0012p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellant, -
MARY PATRICK LATHAM,
-
-
-
No. 03-3830
v.
,
>
THE OFFICE OF THE ATTORNEY GENERAL OF THE STATE -
-
Defendants-Appellees. -
OF OHIO, et al.,
-
N
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 99-00032—Susan J. Dlott, District Judge.
Argued: September 21, 2004
Decided and Filed: January 10, 2005
Before: MARTIN, COLE, and GIBBONS, Circuit Judges.
_________________
COUNSEL
ARGUED: Marc D. Mezibov, MEZIBOV & JENKINS, Cincinnati, Ohio, for Appellant. Michael R.
Barrett, BARRETT & WEBER, Cincinnati, Ohio, for Appellees. ON BRIEF: Marc D. Mezibov, Christian
A. Jenkins, MEZIBOV & JENKINS, Cincinnati, Ohio, Michael N. Budelsky, SIRKIN, PINALES,
MEZIBOV & SCHWARTZ, Cincinnati, Ohio, for Appellant. Michael R. Barrett, Stephanie K. Bowman,
BARRETT & WEBER, Cincinnati, Ohio, for Appellees.
_________________
OPINION
_________________
R. GUY COLE, JR., Circuit Judge. Plaintiff-Appellant Mary Patrick Latham appeals the district
court’s grant of summary judgment in favor of Defendants-Appellees Office of the Attorney General of the
State of Ohio (“OAG”) and others. Latham brought this action against the OAG claiming that its
termination of her employment violated both her First Amendment rights and the anti-retaliation provisions
of the Age Discrimination in Employment Act of 1967 (“ADEA”). The district court granted summary
judgment in favor of the defendants on both claims. Because Latham’s position is properly viewed as a
“confidential or policymaking” position, and because plaintiffs are barred from recovering damages against
a State under the ADEA, we hereby AFFIRM the judgment of the district court.
1
No. 03-3830 Latham v. The Office of the Attorney General, et al. Page 2
I.
Mary Patrick Latham was hired as a consumer protection attorney in the OAG’s Cincinnati office
on April 13, 1987. While she reported to a section head in the OAG’s main office in Columbus, she was
the only consumer protection attorney in Cincinnati. As an assistant attorney general, her duties included,
inter alia, preparing, presenting, and arguing cases; assisting settlement negotiations, and making
recommendations to her superiors as to how best to protect Ohio consumers. However, she required
approval from supervisors in the Columbus office before opening a case file, filing a complaint, submitting
a brief, or initiating or finalizing a settlement. Latham was also not allowed to speak to the press on behalf
of the OAG.
On July 17, 1995, trial was scheduled to begin in a case brought by the OAG against Allied Pest
Control for enforcement of a consent judgment. Latham was assigned to conduct the trial on behalf of the
OAG. In the weeks before the scheduled trial date, she was informed that Robert Hart, an assistant attorney
general based in Columbus, would be handling settlement negotiations between the parties, with an eye
towards avoiding a trial altogether. The day the trial was to have begun, the parties settled the case.
That night, Latham drafted a letter (“the 1995 letter”) to Attorney General Betty Montgomery,
outlining concerns she had with both the Allied settlement and the general direction of the Consumer
Protection Section. On the following day, July 18th, she sent the letter to Montgomery, forwarding copies
to Robert Hart, Randal Berning (head of the OAG’s Cincinnati office), and Eric Brown (then-acting head
of the Consumer Protection Section, and Latham’s immediate supervisor). Latham received no reply or
other response to her letter.
The next month, Brown was replaced as head of the Consumer Protection Section by Helen
MacMurray. Two years later, in the fall of 1997, Latham, MacMurray, and Berning had a series of
meetings, at which MacMurray raised concerns about Latham’s job performance and relationship with other
OAG staff members. The parties dispute the tenor of these meetings, but it is undisputed that Latham was
upset at MacMurray’s allegations. Following one of these meetings, Latham filed an age-based
discrimination complaint with the OAG, alleging that the OAG (through Berning and MacMurray) failed
to promote her and kept her from being involved in certain cases because of her age. Finally, after a
contentious meeting regarding a complaint about Latham made by another OAG staff member, Attorney
General Mongomery terminated Latham’s employment on January 2, 1998.
Latham brought suit in federal court, alleging, after two amendments to her complaint, that her
discharge was both a violation of the ADEA and of her First Amendment rights under 42 U.S.C. § 1983.
The district court granted summary judgment on the ADEA claim on Eleventh Amendment grounds, and
then, upon the release of our decision in Rose v. Stephens, 291 F.3d 917 (6th Cir. 2002), several weeks
before the scheduled trial of the instant case, granted summary judgment on the First Amendment claim.
This appeal followed.
II.
A. Standard of Review
As always, this Court reviews grants of summary judgment de novo. Farhat v. Jopke, 370 F.3d 580,
587 (6th Cir. 2004). Summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” FED. R.
CIV. P. 56(c).
No. 03-3830 Latham v. The Office of the Attorney General, et al. Page 3
B. Section 1983 First Amendment Retaliation Claim
Latham asserts that she was fired, at least in part, because of the 1995 letter she wrote to then-
Attorney General Montgomery. Such a dismissal, she argues, violated her free speech rights under the First
Amendment and 42 U.S.C. § 1983. The OAG asserts that Latham was terminated because she was
disruptive in the office and could no longer be trusted to represent the OAG responsibly. However, since
this appeal is from a grant of summary judgment in the OAG’s favor, we must view all facts in the light
most favorable to Latham. See, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574
(1986). As a result, we must determine if Latham’s termination would result in a viable claim under 42
U.S.C. § 1983 if, in fact, she had been terminated in retaliation for the views she expressed in the 1995
letter.
It is well-settled law that public employees are not obligated to abandon all their constitutional rights
as a requirement for either obtaining or retaining their employment. See, e.g., Connick v. Myers, 461 U.S.
138 (1983); Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) (“The theory that public employment . .
. may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.”
(quoting Keyishian v. Bd. of Regents, 385 U.S. 589, 605–06 (1967)). Therefore, in order to determine
whether a public employer has violated the First Amendment by firing an employee for engaging in speech,
courts must balance the interests of the government – as both sovereign and employer – and those of the
employee as citizen. Pickering, 391 U.S. at 568. To do so, we first determine whether an employee’s
speech addresses a matter of public concern, and, if so, then balance the interests of the employer in
providing effective and efficient services against the employee’s First Amendment right to freedom of
expression. Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1186 (6th Cir. 1995).
1. Was the Subject of Latham’s Speech a Matter of Public Concern?
An expression addresses a matter of public concern where its subject matter is such that the public
at large would have an important interest in the issue. Pickering, 391 U.S. at 571. Latham’s 1995 letter dealt
with both her concerns about the settlement of a case and her general concerns regarding the OAG’s
enforcement of Ohio’s consumer protection laws. It is indisputable that the enforcement decisions of the
OAG in consumer protection cases, in both particular cases and generally, are a matter of public concern,
and, indeed, the OAG has not disputed this issue on appeal. We thus turn to the balancing step of the
Pickering analysis.
2. Does Rose v. Stephens Apply To Latham’s Case?
In Rose v. Stephens, 291 F.3d 917 (6th Cir. 2002), we held that, as a matter of law, the second step
of the Pickering test favors the governmental employer “where a confidential or policymaking public
employee is discharged on the basis of speech related to his political or policy views . . . .” Id. at 921. Rose
involved a § 1983 action by the Kentucky state police commissioner alleging that he was terminated in
violation of his right to freedom of expression under the First Amendment when his termination was based
on his refusal to withdraw a memorandum to the governor outlining Rose’s reasons for eliminating the
deputy police commissioner position. Considering that the Supreme Court had already allowed government
employers to terminate confidential or policymaking employees solely on the basis of their political
affiliation, see, e.g., Elrod v. Burns, 427 U.S. 347, 367 (1976); Branti v. Finkel, 445 U.S. 507 (1980), we
noted that “it would make little sense to permit the government to pre-emptively dismiss employees on the
basis of political affiliation alone, while restricting its ability to respond to an overt act of disloyalty by an
employee in the same position.” Rose, 291 F.3d at 922.
Latham argues that the presumption in favor of the government that we outlined in Rose should not
apply to her case for three reasons: (1) her speech was not made publicly; (2) her speech did not constitute
insubordination or disloyalty; and, most importantly, (3) her position was not a confidential or policymaking
position. We consider each argument in turn.
No. 03-3830 Latham v. The Office of the Attorney General, et al. Page 4
a. The Public Nature of Latham’s Speech
First, Latham argues the speech must be public for the presumption in favor of the government to
apply, and that her speech (i.e., the 1995 letter) was not public. Therefore, she claims, the presumption from
Rose should not apply here. In fact, however, the speech at issue in Rose was also never made “public.”
Rose only sent his memorandum to his superior (the Secretary of Kentucky’s Justice Cabinet) and his
superior’s superior (the Governor). Here, Latham’s 1995 letter was also sent to her superior (the acting head
of the Consumer Protection Section) and her superior’s superior (Attorney General Montgomery), as well
as to several other OAG attorneys. Accordingly, Latham’s letter was no less public than was the speech at
issue in Rose. Furthermore, in Rose, we focused on how the speech would affect the employer’s ability to
maintain a working relationship with his or her employees, rather than whether the speech was “public” or
intra-office. See id. at 923. As a result, any small distinction between the public nature of Latham’s speech
and that of the speech in Rose should not affect the application of Rose to this case.
b. Insubordination
Next, Latham argues that, in contrast to Rose’s actions, her speech did not constitute insubordination
or disloyalty. Rose was fired after he refused to withdraw the memorandum he had submitted to the
Secretary of the Justice Cabinet and to the Governor. Latham argues that it was Rose’s act of refusal to
withdraw the memorandum, not the memorandum’s contents, that led to Rose’s dismissal, and that Latham
did not act in a similarly disloyal or insubordinate fashion. However, Latham misunderstands our holding
in Rose. Had Rose been terminated merely for the act of refusing to withdraw the memorandum regardless
of its contents, then his case never would have involved a speech-related analysis. Rather, the Rose panel
presumably would have analyzed cases in which an employee refused to follow the job-related instructions
of his employer – obviously good cause for termination. However, Rose’s superior obviously wanted Rose
to withdraw his memorandum because of its content stating Rose’s intent to eliminate the position of deputy
commissioner, a position which was then occupied by a friend of the governor. See, e.g., Rose, 291 F.3d
at 924-25. The insubordination at issue was thus Rose’s speech on job-related matters, and as we noted in
that case, “it is insubordination for an employee whose position requires loyalty to speak on job-related
issues in a manner contrary to the position of his employer, and . . . employees may always be discharged
for good cause, such as insubordination.” Id. at 923.
Latham’s case is, again, not significantly different. Latham speaking out on her employer’s policies
could have made it difficult for her employer to trust her to implement those same policies. As the Supreme
Court has noted, “[w]hile as a matter of good judgment, public officials should be receptive to constructive
criticism offered by their employees, the First Amendment does not require a public office to be run as a
roundtable for employee complaints over internal office affairs.” Connick, 461 U.S. at 149. While this may
seem draconian at first glance, recall that, under Elrod and Branti, confidential or policymaking employees
may be discharged merely for their political affiliations, without any on-the-job acts even hinting at
disloyalty or insubordination. Viewed in that context, it would seem incongruous for us to suggest that such
an employee’s job-related speech would have to rise to the level of outright rebellion before termination
would be valid under the First Amendment, when the same employee could be fired merely due to affiliation
with an opposing political party, whether or not the employee ever evinces any policy disagreement with
the party in power. In either case, a confidential or policymaking employee would have, under Elrod,
Branti, and Rose, placed himself in a position such that his State employer might not be able to trust him
to implement fully the employer’s policies. As a result, assuming Latham is found to be a policymaking
or confidential employee, her conduct in speaking out against the central enforcement policies of her
department, while admittedly well-intended, was sufficiently insubordinate to overcome any First
Amendment bar to her termination.
No. 03-3830 Latham v. The Office of the Attorney General, et al. Page 5
c. The Policymaking/Confidential Nature of Latham’s Position
Finally, and most importantly, Latham argues that her case is not governed by Rose’s automatic
presumption in favor of the government because she, as an assistant attorney general in the OAG, was not
a “policymaking or confidential” employee. The Supreme Court has conceded that “[n]o clear line can be
drawn between policymaking and nonpolicymaking positions.” Elrod, 427 U.S. at 367. We, however, have
articulated four categories of employees who will always fall within the Elrod/Branti policymaking or
confidential employees exception:
Category One: positions specifically named in relevant federal, state,
county, or municipal law to which discretionary authority with respect to the
enforcement of that law or the carrying out of some other policy of political
concern is granted;
Category Two: positions to which a significant portion of the total
discretionary authority available to category one position-holders has been
delegated; or positions not named in law, possessing by virtue of the
jurisdiction’s pattern or practice the same quantum or type of discretionary
authority commonly held by category one positions in other jurisdictions;
Category Three: confidential advisors who spend a significant portion of
their time on the job advising category one or category two position-holders
on how to exercise their statutory or delegated policymaking authority or
other confidential employees who control the lines of communications to
category one positions, category two positions or confidential advisors; and
Category Four: positions that are part of a group of positions filled by
balancing out political party representation, or that are filled by balancing out
selections made by different governmental agents or bodies.
McCloud v. Testa, 97 F.3d 1536, 1557–58 (6th Cir. 1996). In determining whether an employee falls into
one of these categories, we must examine the inherent duties of the position, rather than the actual tasks
undertaken by the employee. Williams v. City of River Rouge, 909 F.2d 151, 155 (6th Cir. 1990); see also
Faughender v. City of N. Olmstead, 927 F.2d 909, 913 (6th Cir. 1991) (citing many cases from other
circuits).1 While the “inherent duties of the position” are not necessarily those that appear in the written
job description and authorizing statute, such descriptions can be instructive. See, e.g., Williams, 909 F.2d
at 154-55. Finally, a position need not fit perfectly within one of the “generic” McCloud categories in order
to be found by a court to be a “confidential or policymaking” job. Feeney v. Shipley, 164 F.3d 311, 318 (6th
Cir. 1999).
Latham’s position, that of assistant attorney general, is authorized under Ohio Rev. Code § 109.03,
which states:
The attorney general may appoint . . . assistant attorneys general, each of whom shall be an
attorney at law, to serve for the term for which the attorney general is elected, unless sooner
discharged by him, and each shall perform such duties, not otherwise provided by law, as
are assigned him by the attorney general.
1
Latham argues that we must consider both the actual and inherent duties of the position at issue. However, this is likely to
be the case only if the employment action at issue is a hiring decision where the new supervisor’s conception of the actual duties
of the position at issue will deviate from what they have been in the past. See, e.g., Faughender, 927 F.2d at 909. In addition,
courts have considered the actual duties of the employee in order to determine the inherent duties of the position. See, e.g.,
Gordon v. County of Rockland, 110 F.3d 886, 888 (2d Cir. 1997).
No. 03-3830 Latham v. The Office of the Attorney General, et al. Page 6
In addition, Latham’s job description, contained in her personnel file, details potential duties of an assistant
attorney general, including: appearing in court on behalf of the Attorney General; presenting legal opinions
to the Attorney General or other state personnel; discussing law and/or policy with the Attorney General,
senior attorneys, and state clients; working with state, federal, and local officials and members of the public
in order to solve legal issues; and drafting and reviewing confidential, important, and routine documents
under the direction of a senior attorney. The description also notes that an assistant attorney general “[m]ust
be able to maintain the highest level of confidential and fiduciary relationship in counseling clients and the
Attorney General.”
Latham’s position, as a fiduciary of the Attorney General, falls sufficiently within the bounds of
Categories Two and Three from McCloud, as a confidential advisor to, and delegatee of, a policymaking
employee (here, the Attorney General) on job-related matters. Latham argues that she did not have authority
to file a case or even submit a brief on behalf of the Attorney General without approval from a more senior
attorney. But the record reflects that Latham spent significant amounts of her time preparing and presenting
cases on behalf of the Attorney General, in addition to, via briefs and other internal memoranda, advising
the Attorney General (and other subordinate state attorneys acting for the Attorney General) on confidential
and important legal matters regarding the prosecution of cases filed for the protection of Ohio consumers.
Since the elected Attorney General is herself undoubtedly a policymaking employee, see, e.g., Shahar v.
Bowers, 114 F.3d 1097, 1103-04 (11th Cir. 1997), Latham’s position as a confidential internal adviser and
delegatee falls within the Elrod and Branti test.
Latham argues that this would mean that every government attorney is a policymaking attorney. But
it is doubtless true that a wide array of government attorneys are policymaking employees. See, e.g., Aucoin
v. Haney, 306 F.3d 268 (5th Cir. 2002) (assistant district attorney); Biggs v. Best, Best & Krieger, 189 F.3d
989 (9th Cir. 1999) (private associate attorney working under partner contracted by deputy city attorney);
Vona v. County of Niagara, 119 F.3d 201 (2d Cir. 1997) (assistant attorneys to county social services
department); Williams, 909 F.2d at 155 (chief city attorney; also compiling many such cases); Bauer v.
Bosley, 802 F.2d 1058 (8th Cir. 1986) (staff legal assistant in office of clerk of county court); Ness v.
Marshall, 660 F.2d 517 (3d Cir. 1981) (city solicitor and assistant city solicitors).
The Seventh Circuit’s opinion in Americanos v. Carter, 74 F.3d 138, 141 (7th Cir. 1996), is
particularly instructive. In that case, the court found that an Indiana deputy attorney general (“DAG”; an
analogous position in Indiana to Ohio’s Assistant Attorney General position) was a policymaking employee
and could be terminated merely for his political affiliations. The attorney attempted to argue that he
personally had not exercised significant policymaking authority, but the court held that this did not matter:
Although Americanos asserts that he was required to refer all issues and questions involving
politics and/[or] policy making to Chief Counsel, and let that person make the ultimate
decision on how to implement the AG’s goals, it is likely that in making such referrals
Americanos was asked to advise his superiors concerning what his research into these issues
revealed, and what he thought would be the correct course of legal action. The plaintiff’s
mere participation in these types of discussions establishes that he had meaningful input into
deciding how to handle legal issues for the state.
Id. at 142 (citations and quotations omitted). Noting that a DAG could be fired at any time by the Attorney
General, that a DAG often appeared in proceedings representing the Attorney General, and that a DAG had
statutory authority to be delegated any power of the attorney general, regardless of that DAG’s specific
assignment at any given time, the Seventh Circuit upheld his termination solely on political affiliation
grounds. Other courts have likewise held that lower-level attorneys who still have significant responsibility
are policymaking employees. See, e.g., Bauer v. Bosley, 802 F.2d 1058 (8th Cir. 1986) (staff legal assistant
in office of clerk of county court); Livas v. Petka, 711 F.2d 798 (7th Cir. 1983) (assistant state prosecutor);
Mummau v. Ranck, 531 F. Supp. 402 (E.D.Pa. 1982), aff’d per curiam, 687 F.2d 9 (3d Cir. 1982) (assistant
district attorney).
No. 03-3830 Latham v. The Office of the Attorney General, et al. Page 7
Latham’s case is not significantly different from that of Americanos. Latham appeared in court on
behalf of the Attorney General, drafted policy memoranda and prepared briefs for the Attorney General, and
had to clear all of her work with a more senior state attorney, just as Americanos did. Latham’s job
description explains that she could exercise any duty of the Attorney General that the Attorney General
opted to delegate to her, just as Americanos could. And even though Latham had to clear many of her
actions with her superiors, she was as responsible as Americanos was in assisting in the formulation of state
policies via recommendations made pursuant to individual cases or broader policy discussions.
We do not mean to say that every state employee who advises or serves under a policymaking
individual is herself a policymaker. But where, as here, the employee exercises significant authority on
behalf of a policymaker (even with close supervision), where the employee is responsible for making
important policy implementation recommendations to a policymaker, and where the inherent duties of the
employee are broad and limited primarily by the discretion of the policymaker, it is likely that the employee
is herself a confidential or policymaking employee under Elrod.
Because Latham is a policymaking employee, our holding in Rose, that policymaking employees
may be terminated for their speech and/or political affiliations without offending their First Amendment
rights under Elrod and Branti, applies. Latham also argues that Rose was incorrectly decided. But only our
Circuit en banc or the Supreme Court may overrule a decision of a panel of this Court. See, e.g., Beck v.
Haik, 377 F.3d 624, 635 (6th Cir. 2004). Therefore, even had Latham been terminated solely on the basis
of the 1995 letter expressing her view of then-current OAG policies, her First Amendment rights were not
violated, and summary judgment on this claim was appropriate.
C. Sovereign Immunity and the ADEA
Under the Eleventh Amendment, a State may not be sued in federal court unless it has consented to
such a suit or its immunity has been properly abrogated by Congress. See, e.g., Seminole Tribe of Fla. v.
Florida, 517 U.S. 44 (1996). Here, the state has explicitly stated that it has not consented to Latham’s suit.
Noting this, the district court granted summary judgment for defendants on Latham’s ADEA claim on the
ground that the Supreme Court, in Kimel v. Florida Board of Regents, 528 U.S. 62, 91 (2000), held that
Congress, when enacting the ADEA, did not abrogate States’ sovereign immunity.
Latham contends that Kimel does not apply to her claim for retaliation under the ADEA, because,
prior to Kimel, this Circuit had held that the ADEA did properly abrogate states’ sovereign immunity claims.
See, e.g., Coger v. Bd. of Regents, 154 F.3d 296 (6th Cir. 1998), abrogated by Kimel, 528 U.S. at 91. She
argues, therefore, that a state actor should still be responsible for its retaliatory response to her attempts to
protect rights that were, pre-Kimel in this Circuit, presumptively protected. However, Latham cites no
caselaw for this proposition, and in fact finds herself in exactly the same position as were some of the
plaintiffs in Kimel, who were themselves appealing dismissal of their retaliation claims under the prior
regime. See Kimel, 528 U.S. at 69. Kimel held squarely that all such claims were precluded by the Eleventh
Amendment, and Latham’s case is no different.
Further, Latham argues that, because classifications based on speech are inherently suspect, “the
anti-retaliation provisions of federal statutes [including the ADEA] do effectively abrogate state immunity”
for claims grounded in the First Amendment. Final Br. of Appellant at 46. Thus, she claims, her speech-
grounded ADEA arguments can be brought against the OAG. But this confuses two very different legal
regimes. Latham is, of course, free to pursue claims against the OAG based on actual speech-based
discrimination under the guarantees of the First, Fifth, and/or Fourteenth Amendments – indeed she has
done so in her claim discussed supra. But claims under the ADEA must allege that a plaintiff was
discriminated against on the basis of age, not speech, regardless of the conduct at issue. See, e.g., Kimel,
528 U.S. at 67 (citing text of statute). In Kimel, the Court clearly stated that “age is not a suspect
classification under the Equal Protection Clause.” Id. at 83. The Court also noted that the ADEA goes
beyond the anti-discrimination mandate of the Constitution and would therefore require an abrogation of
No. 03-3830 Latham v. The Office of the Attorney General, et al. Page 8
sovereign immunity independent from that inherent in the Equal Protection Clause. Id. at 82–91. It is true
that state immunity may properly be abrogated by Congress in certain constitutional areas, see, e.g., Hutto
v. Finney, 437 U.S. 678 (1978); Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), but such abrogations must be
clearly expressed by Congress. See, e.g., Quern v. Jordan, 440 U.S. 332 (1979). The Kimel Court found
no such abrogation in the ADEA. 528 U.S. at 82–91. As a result, Latham’s attempt to mix an ADEA age-
based claim with claims of speech-based discrimination in order to avoid the sovereign immunity bar of the
Eleventh Amendment cannot succeed. Latham simply cannot sue a State under the ADEA without the
State’s consent.
III.
For the preceding reasons, the district court’s grant of summary judgment in favor of the OAG is
AFFIRMED.