Labor & Employment Law Daily No qualified immunity for official who harassed and terminated employees because of political affiliation
Monday, January 14, 2019

No qualified immunity for official who harassed and terminated employees because of political affiliation

By Nicole D. Prysby, J.D.

An elected clerk of court who discharged the chief deputy clerk because of her political affiliation was not entitled to qualified immunity, ruled the Eighth Circuit in an unpublished decision. Absent political affiliation being an appropriate requirement for the job, there is a First Amendment right not to be removed from a prevailing opponent’s staff because of one’s political affiliation. There was no evidence that political affiliation was an appropriate requirement for the clerk’s position, and there was ample evidence that the clerk and his newly appointed chief deputy clerk, who replaced the former deputy clerk, harassed two employees and took adverse employment actions against them because of their political affiliation (McKee v. Reuter, January 8, 2019, unpublished, Holmes, J.).

Replacement. The employee served as the chief deputy clerk of the county court. In 2014, she ran as the Democratic candidate to replace the outgoing clerk of court but lost to the Republican. On his first day on the job, the newly elected clerk instructed the employee to relocate her work station from her semi-private desk to a cubicle immediately outside his office, but assured her that her duties would remain the same. However, the next day, he directed her to tend the front counter and answer telephones while he convened a meeting of all the deputy clerks. At the meeting, he announced that a new individual, who had no relevant experience, would be the chief deputy clerk, replacing the employee.

The employee took medical leave for about a month and when she returned, the clerk issued her a notice of corrective action, which indicated that the new chief deputy clerk had made complaints about the employee. The employee contested the notice of corrective action and it was eventually withdrawn. In April 2015, the employee was terminated after she was involved in an argument with several other employees about office gossip. She contested the termination and an outside panel reinstated her. She returned to work in June and was assigned to a different division, performing tasks well below her qualifications. The clerk instructed the employee’s new supervisor that the employee was not allowed to enter the second floor, where the main clerk’s office was located. Given these circumstances and her past experiences, the employee resigned.

Supporter harassed. The second employee was a deputy clerk and a Democrat who supported the first employee during her 2014 campaign. In July 2015, she was transferred to a different division and her new supervisor warned her that she would probably lose her job. The employee complained to the clerk that she was not being properly trained or supervised. The clerk instituted monthly performance reviews by which the supervisor repeatedly documented negative appraisals of the employee’s work. The employee was terminated in October 2015. She contested her termination and was reinstated. She returned to work and soon thereafter, underwent surgery. She requested light duty because she was in a significant amount of pain. Her request was ignored and she went on medical leave. The clerk informed that she could take unpaid extended leave if she faxed in a written request. She faxed her request, and her supervisor told her the request was not dated, so she needed to return to work the next day or she would lose her job. The employee resigned.

The two employees brought 42 U.S.C. § 1983 claims against the clerk and his chief deputy, asserting that the defendants violated their First Amendment rights by taking adverse employment action against them on account of their political affiliations and activities during the 2014 campaign. The clerk and his chief deputy claimed qualified immunity when the two employees brought First Amendment political patronage claims under 42 U.S.C. § 1983. The district court denied summary judgment based on qualified immunity for the clerk and chief deputy, and the two defendants immediately appealed that decision.

No qualified immunity against First Amendment political patronage claims. The Eighth Circuit agreed with the district court. As an initial matter, the appeals court observed that an employee’s political affiliation need not be the sole motivating factor behind a dismissal, merely a substantial or motivating factor. In this instance, the first employee presented enough evidence for a jury to reasonably infer that her political affiliation and activities during the 2014 campaign were substantial factors, both in the way the clerk treated her after the election and in his decision to dismiss her.

Upon taking office, he immediately relocated her desk, and replaced her with an individual who had no relevant qualifications. The corrective notice was based solely on input from the new chief deputy clerk and was withdrawn. This evidence was sufficient for a rational factfinder to infer that the clerk mistreated and terminated the employee on account of her political affiliation and activities during the 2014 campaign.

The clerk argued that the employee had no First Amendment right to run for clerk of court and then, after losing the election, retain her position. The court agreed that had the employee’s claims been predicated solely upon her candidacy, defendants would entitled to qualified immunity. But the claims were not predicated upon her candidacy, but upon her affiliation with the Democratic party, the expression of her political views, and the activities she undertook as a Democrat during a partisan campaign, all of which fall squarely within the protections of the First Amendment.

Appropriate job requirement. As for whether political affiliation was an appropriate requirement for the job, the officials cited no evidence and offered no argument as to why the chief deputy clerk was a policymaking position. Were the position a policymaking one, there might be an argument that a termination was directed toward the efficient and effective operation of the office.

But that argument does not apply where the evidence could be construed to suggest that, rather than promote the efficiency and effectiveness of the court, the clerk instead harassed and impeded the employee in the performance of her duties by needlessly relocating her work station, distracting her with security cameras, taking her keys and parking pass, issuing her a politically motivated notice of corrective action based on a disputed complaint, retaining his wife’s former associate as a fact-finder to adjudicate her grievance, isolating her to perform menial work, and reassigning her old duties to a new hire with no relevant qualifications.

For similar reasons, the court also found no qualified immunity for the chief clerk. It reasoned that its task was to determine  whether, absent political affiliation being an appropriate requirement for the job, there is a First Amendment right not to be removed from a prevailing opponents staff because of one’s political affiliation. There is indeed such a right, said the appeals court.

As to the second employee, the court rejected the clerk’s argument that the employee was fired not for her political activities, but because she was incompetent. The evidence showed that the employee had been employed for four years and had never received a negative performance evaluation. It was not until after the clerk, a Republican, was elected in a campaign in which the employee supported his Democratic opponent that she was transferred and began receiving poor performance evaluations. That there was evidence she made mistakes on the job does not compel the conclusion that she would have been fired in any event, because an outside panel of judges overruled her dismissal and reinstated her.

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