June A. Kreuzer v. Virgil E. Brown , 128 F.3d 359 ( 1997 )

NORRIS, J., delivered the opinion of the court, in which RUSSELL, D.J., joined. , MOORE, J. (pp. 365-371), delivered a separate dissenting opinion.

ALAN E. NORRIS, Circuit Judge.

Plaintiff, June A. Kreuzer, appeals from the district court’s order granting summary judgment in favor of defendant, Virgil Brown, on her claim under 42 U.S.C. § 1983 that she was discharged from her position at the Ohio Lottery Commission because of her political affiliation and in violation of her rights under the First and Fourteenth Amendments. For the reasons set forth below, we affirm.

I.

Plaintiff was employed by the Ohio Lottery Commission (“Commission”) as a Lottery Executive Account Representative (“LEAR”) from February 1987 to June 1991, when she was terminated. During that time, LEARs were divided into two groups: “Partners-in-Prosperity” (“PIPs”), who worked with individual retail outlets, and Chain Account Representatives, who serviced chain stores. Plaintiff was a PIP for the entire time she worked at the Commission. Prior to her employment with the Commission, she served as a Democratic state representative in the Ohio General Assembly, until she was defeated in the Democratic primary of 1986.

In January 1991, newly elected Republican Governor Geprge Voinovich appointed defendant Brown as the executive director of the Commission. Shortly after his appointment, Brown determined that the Commission needed to reorganize in order to increase its efficiency, and that it needed to place greater emphasis upon working with larger chain stores rather than with individual retail outlets. To this end, Brown eliminated the PIP program, added three new Chain Account Representative positions, and shifted the focus of all Chain Account Representatives to acquiring new business and overseeing problems with large business accounts. In addition, Brown created a new position, Regional Coordinator, to service all accounts, large and small, in pre-established regions.

In June 1991, Brown discharged plaintiff as part of the reorganization.¹ Brown also incorporated all. LEARs into the Commission’s sales division. To fill newly available positions, Brown transferred four employees from other positions at the Commission, and hired seven new employees. After the reorganization, the Sales Division was composed of five Chain Account Representatives, of whom three were Democrats and two were Republicans; five Regional Coordinators, only one of whom was a confirmed Republican; and two “other” employees, both of whom were Democrats.

After her termination, plaintiff brought an administrative challenge to her dismissal before the Ohio State Personnel Board of Review. The Board dismissed her appeal, holding that LEAR positions at the Commission are “unclassified” for civil service purposes, and that plaintiff was therefore terminable at will.

On August 26, 1992, plaintiff filed this action against Brown in the district court, claiming that her First and Fourteenth Amendment rights were violated, and that she was entitled to recovery under 42 U.S.C, § 1983. Plaintiff claimed she was discharged from her position because of her longstanding affiliation with the Democratic Party. Brown responded by filing a motion for summary judgment based upon the merits of plaintiffs claim and upon qualified immunity. With respect to the merits of plaintiffs claim, Brown contended that plaintiff was terminated because the PIP positions were eliminated in the reorganization, and that she was not hired for one of the other positions because he believed others were better qualified for those positions.

In opposition to Brown’s motion for summary judgment, plaintiff argued that there was a genuine issue of material fact concern-' ing his motivation in terminating her,' and that, while her job was eliminated as part of the reorganization, she was entitled to one of the positions that resulted from the reorganization. At oral argument, however, plaintiffs counsel conceded that plaintiff was not entitled to a Regional Coordinator position, indicating that her only claim is that Brown should have given her a Chain Account Representative position, and that he failed to do so because of her political affiliation.

In support of this claim, plaintiff testified by affidavit that Brown fired her with little explanation, merely telling her, “you know how these things go.” In addition, she introduced the affidavits of Jerry Vittardi, a former PIP, and Cynthia Easter, a former Chain Account Representative, as well as affidavits of other former employees of the Commission. Vittardi testified that Brown told him that he did not want to fire him but that “his hands were tied” and that “there are commitments out there.” Easter testified that when Brown fired her, he told her that there were no problems with her job performance, but that he “had to make room for other people.” Easter further testified that soon after Brown arrived at the Commission, he told an assembly of employees that “some people would lose then’, jobs through politics.”

The district court granted- defendant’s motion for summary judgment on the merits, and it did not address the issue of qualified immunity. In doing so, it concluded that Brown reorganized the Commission because of legitimate business reasons, and that the reorganization was not a pretext for terminating plaintiff because of her political affiliation. The court also concluded that plaintiff failed to offer any evidence that the newly created positions were a “carbon copy” of plaintiffs PIP position. Plaintiff does not challenge these conclusions on appeal.

II.

We review the district court’s grant of summary judgment de novo. See, e.g., Brooks v. American Broadcasting Co., 999 F.2d 167, 174 (6th Cir.1993). Summary judgment is proper “if 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 a judgment as a matter of law.” Fed.R.Civ.P. 56(e). Our inquiry into a grant of summary judgment is to determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir.1989) (citation omitted). In doing so, we must draw all justifiable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986). In order to reverse a district court’s grant of summary judgment, we must conclude that the evidence presented, if accepted by the jury, is sufficient to permit plaintiffs recovery. Gregory v. Hunt, 24 F.3d 781, 784 (6th Cir. 1994).

A.

In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), the United States Supreme Court held that a governmental unit could not constitutionally terminate a non-policymaking employee solely on the grounds of political affiliation, because such terminations “severely restrict political belief and association.” Id. at 372, 96 S.Ct. at 2689. However, the Court stated that governments have a vital interest in ensuring that “representative government not be undercut by tactics obstructing the implementation of policies of the new administration,” id. at 367, 96 S.Ct. at 2687, and that patronage dismissals are therefore permissible in cases involving employees in “policymaking positions,” id. at 372, 96 S.Ct. at 2689. The Court affirmed this holding in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). The Branti Court also clarified the scope of permissible patronage, holding that “the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Id. at 518, 100 S.Ct. at 1295. Finally, in Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990), the Court reaffirmed the rationale of both Elrod and Branti, extending their reach beyond'patronage dismissals to such other common employment practices as hirings, transfers, promotions, and recalls from layoffs. Id. at 79, 110 S.Ct. at 2739-40.

In order to establish a prima facie case of patronage dismissal in violation of her First Amendment rights, plaintiff must show that the adverse employment action in question was the result of her political affiliation. See Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). To establish the required causal connection, plaintiff must show that her political affiliation was a “substantial” or “motivating” factor behind the adverse employment action. Id. at 287, 97 S.Ct. at 576. This showing may be made by direct or circumstantial evidence. Conklin v. Lovely, 834 F.2d 543, 546-547 (6th Cir.1987) (citing Rosaly v. Ignacio, 593 F.2d 145, 149 (1st Cir.1979)). If plaintiff meets hér burden, the burden then shifts to the defendant-to prove that the employment decision would have been the same even without political considerations. Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576.

B.

Plaintiff argues that the district court erred in granting Brown’s motion for summary judgment because she presented evidence which, if accepted by the jury, could support her claim that her dismissal from the Commission violated her First Amendment rights. Specifically, plaintiff argues that the evidence shows that, because she is a Democrat, Brown refused to give her one of the Chain Account Representative positions which were added after the reorganization.

Before plaintiff can establish a First .Amendment violation, she must show that she was subjected to a legally actionable personnel decision. It seems to us that under the circumstances present in this ease, where a public employee loses her job because her position is eliminated in a reorganization, there are three scenarios under which the employee could make out a claim of Unconstitutional patronage dismissal. First, her dismissal would be actionable if the stated business or policy reasons for the reorganization are a subterfuge for its actual motivation, the desire to eliminate politically unfriendly employees. Under this scenario, evidence that positions which are added or redefined as part of the reorganization are effectively identical to those eliminated would be a strong indication of improper motive. Second; the employee could demonstrate that she was improperly terminated for political reasons if similarly situated employees who were affiliated with the other political party were shifted to other positions, that she was qualified for one of those positions, and that the decision not to give her one of those positions was politically motivated. Finally, the employee could state a claim if at some point before or during the reorganization she applied for a different position, and she was not considered because of her political affiliation. As the Supreme Court pointed out in Rutan, failure to consider an employee for a position because of her political affiliation is equally as actionable as a patronage dismissal. 497 U.S. at 79, 110 S.Ct. at 2739-40.

However, none of the scenarios is supported by the facts in the record before us. Beyond merely characterizing the reorganization as a “purported” one, plaintiff does not challenge the district court’s conclusion that Brown’s decision to reorganize the commission, and thus to eliminate plaintiffs PIP position, was based upon legitimate business or policy reasons. Nor does she challenge the court’s conclusion that there is no evidence that any positions to which she lays claim are essentially the same as the eliminated positions. Furthermore, while the record does show that following the reorganization, two former PIPs were given Chain Account Representative positions, and that plaintiff may have been qualified for one of those positions, both of the transferred employees were Democrats. Thus, it is unlikely that plaintiff was not transferred because she is a Democrat. And finally, there is no evidence in the record that plaintiff ever applied for a position at the reorganized Commission before bringing this action.²

Rather, the essence of plaintiffs argument is that Brown should have considered her automatically for one of the Chain Account Representative positions once her position was eliminated. As pointed out by the Supreme Court, however, “[t]he First Amendment is not a tenure provision, protecting public employees from actual or constructive discharge.” Rutan, 497 U.S. at 76, 110 S.Ct. at 2737-38. While the law protects public employees, except in limited circumstances, from losing their employment because of political considerations, the law does not create an entitlement to life-time employment. Accordingly, the First Amendment does not require the government to automatically consider employees whose jobs were eliminated for business reasons for other positions. Thus, under the circumstances of this case, Brown’s failure to consider plaintiff for one of the new positions is not an actionable personnel decision.

Accordingly, we conclude that the district court did not err in granting summary judgment in Brown’s favor.

III.

Brown also argues that he is still entitled to summary judgment because, under the Supreme Court’s decisions in Elrod and Branti, political affiliation is an appropriate requirement for the effective performance of a LEAR position. In the alternative, he contends that even if he dismissed plaintiff in violation of her First Amendment rights, he is entitled to qualified immunity because he did not “violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). We need not reach these arguments in view of the fact that we affirm the district court’s grant of summary judgment in favor of Brown.

IV.

The judgment of the district court is affirmed.

1 . Plaintiff asserts that all of the discharged employees were Democrats. This fact is, however, of little relevancy since all LEARs were Democrats prior to the reorganization.

2 . While courts have excused an employee’s failure to apply for a position in other contexts when such a gesture would have been futile, plaintiff does not make this argument here. In any event, in those contexts, we have previously held that in order to overcome the lack of application for a position, a plaintiff must present “overwhelming evidence of pervasive discrimination in all aspects of [the employer's] internal employment practices," and plaintiff must also show that "any application would have been futile and perhaps foolhardy.” Harless v. Duck, 619 F.2d 611, 617-18 (6th Cir.1980). The evidence in the record falls considerably Short of meeting this kind of elevated standard.