Jay Embry v. City of Calumet City , 701 F.3d 231 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1649
JAY E MBRY,
Plaintiff-Appellant,
v.
C ITY OF C ALUMET C ITY, ILLINOIS, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 C 3685—Matthew F. Kennelly, Judge.
A RGUED O CTOBER 3, 2012—D ECIDED N OVEMBER 26, 2012
Before F LAUM, R IPPLE, and W ILLIAMS, Circuit Judges.
F LAUM, Circuit Judge. Jay Embry sued Calumet City,
four city aldermen, and the city Director of Personnel
under 42 U.S.C. § 1983, alleging that defendants
demoted him from the position of Commissioner of
Streets and Alleys as retaliation for his support of the
mayor during a recent city election. Applying the Elrod-
Branti line of political-patronage cases, the district court
2 No. 12-1649
granted defendants’ motion for summary judgment
after concluding that the commissioner is a policy-
making position and that Embry could therefore be
removed because of his political affiliation. See Branti v.
Finkel, 445 U.S. 507 (1980); Elrod v. Burns, 427 U.S. 347(1976) (plurality). We agree with the district court and
accordingly affirm the judgment.
I. Background
Embry started working for the Department of Streets
and Alleys in Calumet City more than a decade ago. He
eventually rose to the department’s highest position in
2007, when Mayor Michelle Qualkinbush appointed
him commissioner. The commissioner oversees the con-
struction and repair of all streets, paving, sidewalks,
and other public improvements, and also reports
ordinance violations to the city council. Calumet City,
Ill., Code ch. 2, art. IV, § 2-462 (1980). As commissioner,
Embry supervised all day-to-day work in the depart-
ment, prepared the department’s annual budget of four
million dollars, and managed payroll and scheduling
for the department’s forty employees. He also met with
the mayor and other department heads to brainstorm
improvements to city streets and other public ways.
During the April 2009 municipal election, Embry cam-
paigned for the “United to Serve You” team of candidates,
which included Mayor Qualkinbush and three of the
four defendant-aldermen. The United team was ap-
parently not as united as its name suggested: three
defendant-aldermen broke party ranks to support defen-
No. 12-1649 3
dant Roger Munda over Munda’s opponent, whom the
mayor had endorsed. Munda won, creating a rift
between the defendant-aldermen and the mayor. Embry
found himself caught in the political crossfire as the
defendant-aldermen urged him to stop supporting
the mayor and “get on their team.” Embry declined.
The defendants soon criticized Embry for failing to de-
velop a plan to cut grass on city property, even though
Embry drafted and submitted a plan as requested.
A few months after the election, the city council
merged Embry’s department with the Sewer and Water
Department, creating a single Department of Streets,
Alleys, Water, and Sewer. Calumet City, Ill., Ordi-
nance 09-33 (July 29, 2009). The Sewer Superintendent
planned to retire, and Embry thought that he would be
appointed commissioner of the new department. Indeed,
he oversaw the consolidated department for a brief
period of time. Subsequently, Mayor Qualkinbush
drafted an appointment letter nominating Embry to
head the new department. However, after the defen-
dant-aldermen vowed not to ratify Embry’s appoint-
ment, the mayor nominated someone else. The city
council unanimously approved the new appointment.
Embry then filed this lawsuit under Section 1983.
II. Discussion
We review de novo a district court’s grant of summary
judgment, viewing all facts in the light most favorable
to the non-moving party, in this case, Embry. See Delapaz
v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011). However,
4 No. 12-1649
we review the underlying characterization of Embry’s job
as a policymaking position for clear error. Selch v. Letts,
5 F.3d 1040, 1044 (7th Cir. 1993). Summary judgment is
proper when no dispute as to material fact exists and
the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). Viewing the facts in the light
most favorable to Embry, we ultimately agree with the
district court that Embry held a policymaking position
under the Elrod-Branti line of political-patronage cases,
permitting his dismissal solely for political reasons.
A. The District Court Properly Invoked the Elrod-Branti
Exception.
As a general matter, political patronage dismissals
violate the First Amendment. See Elrod, 427 U.S. at 360(plurality). Certain governmental positions, though,
require a “heightened need for trust and confidence
that . . . subordinates are guided by the same political
compass and will exercise their discretion in a manner
consistent with their shared political agenda.” Bonds v.
Milwaukee Cnty., 207 F.3d 969, 977 (7th Cir. 2000). For
these positions—dubbed “policymaking jobs”—the
“government employer’s need for political allegiance . . .
outweighs the employee’s freedom of expression[.]”
Id. Thus, government employers may fire individuals
in policymaking jobs solely because of their political
affiliation. This exception applies not only when a new
political party takes power, but also includes “patronage
dismissals when one faction of a party replaces another
faction of the same party[.]” Tomczak v. City of Chi., 765
F.2d 633, 640 (7th Cir. 1985) (citations omitted).
No. 12-1649 5
Even these policymaking employees, though, possess a
minimal level of First Amendment protection against
retaliatory dismissal: the government cannot fire them
for speech on public matters unconnected to political
affiliation or policy viewpoints. Bonds, 207 F.3d at 979;
Marshall v. Porter Cnty. Plan Comm’n, 32 F.3d 1215, 1221
(7th Cir. 1994). Dismissal for such speech only survives
constitutional scrutiny if the government’s interest in
promoting the efficiency of its public services outweighs
the employee’s free speech interests. See Connick v. Myers,
461 U.S. 138, 142 (1983); Pickering v. Bd. of Educ., 391
U.S. 563, 568 (1968); Bonds, 207 F.3d at 979. Embry first
attacks the district court’s reliance on the Elrod-Branti
political-patronage cases, arguing that Connick-Pickering
applies instead. We disagree.
Connick-Pickering does not apply here because
Embry identifies no statement of public concern uncon-
nected to political affiliation or policy views that led
to his dismissal. Such statements are prerequisites to
Connick-Pickering balancing. Bonds, 207 F.3d at 979.
Instead, Embry argues that because he publicly sup-
ported the entire “United to Serve You” slate, the defen-
dants must have fired him for his speech on public
matters other than his political loyalties. But Embry’s
complaint specifically alleged that defendants fired
him “based on [his] political allegiance to Qualkinbush.”
This alone places the case squarely within the Elrod-
Branti line. Embry resists this conclusion by charac-
terizing his campaign activities as both speech and affilia-
tion, but he points to no speech unrelated to his support
for Mayor Qualkinbush. Because Elrod-Branti applies
6 No. 12-1649
when the public speech is nothing more than public
political affiliation, see Riley v. Blagojevich, 425 F.3d 357,
365 (7th Cir. 2005), the Elrod-Branti line of cases pro-
vides the appropriate test here.
B. Embry’s Position Qualifies as a Policymaking Posi-
tion Under Elrod-Branti.
Because the Elrod-Branti line of cases controls here,
Embry’s dismissal does not violate the First Amend-
ment if he held a policymaking job. An employee holds
a policymaking position when “the hiring authority
can demonstrate that party affiliation is an appropriate
requirement for the effective performance of the
public office involved.” Branti, 445 U.S. at 518. Political
allegiance is a valid job requirement when “the position
authorizes, either directly or indirectly, meaningful
input into government decisionmaking on issues where
there is room for principled disagreement on goals or
their implementation.” Davis v. Ockomon, 668 F.3d 473,
477 (7th Cir. 2012) (citation omitted).1 Discretion is also
important: when an employee exercises broad discre-
tionary power, the state cannot easily fire the employee
for insubordination even though “the employee’s per-
1
Political allegiance is also a valid job requirement when the
job “gives the holder access to his political superiors’ con-
fidential, politically sensitive thoughts.” Davis, 668 F.3d at 477
(quoting Riley, 425 F.3d at 359). Embry does not now suggest
his position provided him such access.
No. 12-1649 7
formance frustrates the implementation of the admin-
istration’s policies.” Selch, 5 F.3d at 1044. We examine
the powers inherent in the office when considering
whether an employee holds a policymaking job, even if
the employee never actually exercises those powers.
Tomczak, 765 F.2d at 640-41 (citations omitted); see also
Riley, 425 F.3d at 360-61. In evaluating Embry’s position
under Elrod-Branti, the parties dispute whether to look
at the duties of the Commissioner of Streets and Alleys
(Embry’s old position) or those of the Commissioner
of Streets, Alleys, Water, and Sewer (his position in the
new, combined department). Because even the more
limited duties of the Commissioner of Streets and Alleys
satisfy the Elrod-Branti exception, we address only
that position.2
We conclude Embry held a policymaking job. As com-
missioner, Embry planned for and oversaw construc-
tion and repair of the city’s public ways. He also super-
vised his department’s forty employees and managed
its budget of four million dollars. These executive duties
closely resemble those of other public-works administra-
tors that involved “policymaking.” In Selch, for example,
a subdistrict superintendent with the Indiana Depart-
2
Embry concedes that the new position of Commissioner of
Streets, Alleys, Water, and Sewer performs all the duties and
functions of the old Commissioner of Streets and Alleys.
Thus, if the Commissioner of Streets and Alleys is a policy-
making position, so too is the head of the new, combined
department.
8 No. 12-1649
ment of Highways held a policymaking job when he
coordinated all maintenance activities for his subdistrict,
oversaw a budget of one million dollars, and managed
over sixty employees. 5 F.3d at 1044-45. This high-level
responsibility permitted him to thwart the political goals
of the party in power, making party allegiance an ap-
propriate job qualification. Id. at 1045-46. Indeed, the
“primary function of any local government entity is the
provision of services such as . . . transportation [and] . . .
quasi-utility functions such as water, garbage, and sewage
services. Elections often turn on the success or failure of
the incumbent to provide these services[.]” Tomczak,
765 F.2d at 641. Here, Embry exercised similarly broad
authority over construction and maintenance of Calumet
City’s public thoroughfares. His duties even exceeded
those of the public official in Selch. Unlike that govern-
ment employee, Embry not only implemented policy
but met with the mayor and other department heads to
develop new policies for improving city services. Ulti-
mately, the commisioner’s broad discretion to formulate
and implement city policy places the position firmly in
the policymaking category.
Not only do Embry’s job duties place him in the
policymaking category, the structure of his appointment
does as well. The mayor appoints, and the city council
ratifies, commissioners for an annual term. Such time
limits allow new administrations to appoint new com-
missioners upon ascension to office, freeing them from
the burden of appointees loyal to the previous admin-
istration. See Heck v. City of Freeport, 985 F.2d 305, 310
No. 12-1649 9
(7th Cir. 1993). Thus, the finite term of Embry’s appoint-
ment further supports application of the Elrod-Branti
exception.
Other circuits have similarly placed road, highway,
and transportation supervisors within the Elrod-Branti
exception. See Langley v. Hot Spring Cnty., Ark., 393 F.3d
814, 818 (8th Cir. 2005) (road foreman who reported
directly to chief executive and had significant public
contact); Gentry v. Lowndes Cnty., Miss., 337 F.3d 481, 487-88
(5th Cir. 2003) (county road manager who prepared
a budget, hired employees, purchased equipment, and
carried out general policies of the county board of super-
visors); Hoard v. Sizemore, 198 F.3d 205, 213-14 (6th
Cir. 1999) (county road foreman who decided which
roads to repair, supervised twenty to thirty employees,
and spoke daily with county executive); Vezzetti
v. Pellegrini, 22 F.3d 483, 486 (2d Cir. 1994) (highway
superintendent who prepared four million dollar
budget, managed sixty employees, and made frequent
public speeches). Only when these positions lack budget-
ary oversight or other supervisory powers have they
fallen outside Elrod-Branti. See Akers v. Caperton, 998
F.2d 220, 224-25 (4th Cir. 1993) (ruling that county mainte-
nance superintendents who plan routine maintenance,
prepare and inspect records, and inform supervisors
of road conditions do not hold policymaking posi-
tions). In short, extending the Elrod-Branti exception to
Embry’s role as supervisor creates no controversy. His
discretionary authority to implement and influence
policy over Calumet City’s roads compels application
10 No. 12-1649
of the Elrod-Branti exception, and the City may fire
him solely for political reasons.3
III. Conclusion
For the foregoing reasons, we A FFIRM the district
court’s grant of summary judgment in favor of defendants.
3
Embry also argues that even if properly dismissed as com-
missioner, he should have been restored to his former posi-
tion as foreman. According to Embry, in denying him his old
job as foreman, defendants retaliated against him for the
exercise of his First Amendment rights. But during Embry’s
tenure as commissioner, Calumet City abolished that position,
replacing foremen with lower-paid deputy commissioners.
Embry offers no evidence showing pretext in defendants’ stated
reason for eliminating foremen—easing budgetary strain—so
the district court properly granted summary judgment in
their favor. See Greene v. Doruff, 660 F.3d 975, 978-80 (7th
Cir. 2011) (describing burden-shifting framework of constitu-
tional retaliation claims).
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