Barcus v. Austin

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

JOSEPH C. BARCUS;

JAMES D. SHACKLEFORD; and

PETER J. SHIPP,

formerly known as Peter L. Shipp;

Plaintiffs,

v. CIVIL ACTION NO. 1:17CV122

(Judge Keeley)

TERRY AUSTIN,

Sheriff, in his personal capacity,

Defendant.

MEMORANDUM OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART THE DEFENDANT’S

MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND

DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]

After he was elected Sheriff of Taylor County, West Virginia,

in November 2016, the defendant, Terry Austin (“Austin”), fired the

plaintiffs, Joseph C. Barcus (“Barcus”), James D. Shackleford

(“Shackleford”), and Peter J. Shipp (“Shipp”) (collectively, “the

Plaintiffs”), from their jobs in the Sheriff’s Office. Barcus,

Shackleford, and Shipp sued Austin, alleging they were fired in

violation of their constitutional rights because of their support

for then-Taylor County Sheriff Terring Skinner during his re-

election campaign.

Pending are Austin’s motions for summary judgment against all

the Plaintiffs (Dkt. Nos. 145, 147), and his motion to strike the

BARCUS, ET AL. V. AUSTIN 1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART THE DEFENDANT’S

MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND

DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]

Plaintiffs’ letter of supplemental authority (Dkt. No. 157).1 For

the reasons that follow, the Court GRANTS IN PART AND DENIES IN

PART the motions for summary judgment and DENIES AS MOOT the motion

to strike.

I. BACKGROUND

A. The Facts

The Court recites the facts in the light most favorable to the

non-moving parties. See Providence Square Assocs., LLC v. G.D.F.,

Inc., 211 F.3d 846, 850 (4th Cir. 2000). In mid-2015, Shipp, a

maintenance worker for the Taylor County Commission, accepted an

offer from Sheriff Skinner to become his secretary (Dkt. No. 145-3

at 12). As Skinner’s secretary, Shipp performed basic secretarial

or administrative duties for the Sheriff: He answered phones, took

messages, issued permits and incident reports, made copies, and

greeted members of the public (Dkt. Nos. 150 at 1, 145-3 at 12). In

early 2016, Skinner also hired Barcus and Shackleford to work as

security officers in the Taylor County Courthouse (Dkt. Nos. 145-2

at 7, 145-9 at 12).

Later in 2016, Skinner, a Democrat, sought re-election as the

1 All docket and page numbers refer to the numbers assigned by the

Court’s electronic docket.

2

BARCUS, ET AL. V. AUSTIN 1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART THE DEFENDANT’S

MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND

DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]

Taylor County Sheriff. Austin, a Republican, opposed him. In the

run up to the November election, Barcus, Shackleford, and Shipp

supported Skinner’s re-election effort in various ways (Dkt. No.

145-2 at 4-5). They erected campaign signs, campaigned door-to-

door, and displayed signs on their vehicles and in their yards

(Dkt. Nos. 145-2 at 5, 145-3 at 10-11, 145-9 at 12). Despite their

efforts, Austin defeated Skinner. Then, after the election but

before he assumed the office of Sheriff in January 2017, Austin

fired Barcus, Shackleford, and Shipp (Dkt. Nos. 145-4, 145-5, 147-

4).

B. Procedural History

In June 2017, the Plaintiffs sued Austin and the Taylor County

Commission in the Circuit Court of Taylor County, West Virginia,

alleging violations of the First and Fourteenth Amendments to the

United States Constitution and Sections 7, 10, and 11 of Article

III of the West Virginia Constitution (Dkt. No. 1-1). Following

removal of the case in July 2017 (Dkt. No. 1), this Court dismissed

all claims against Austin in his official capacity, and also

dismissed the Taylor County Commission (Dkt. No. 73). Discovery has

concluded and trial is scheduled to commence on July 27, 2020 (Dkt.

Nos. 109, 182).

3

BARCUS, ET AL. V. AUSTIN 1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART THE DEFENDANT’S

MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND

DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]

II. STANDARD OF REVIEW

Summary judgment is appropriate only “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 judgment as a matter of law.” Fed. R. Civ. P. 56(c). When ruling

on a motion for summary judgment, the Court reviews all the

evidence “in the light most favorable” to the nonmoving party.

Providence Square, 211 F.3d at 850. The Court must avoid weighing

the evidence or determining its truth and limit its inquiry solely

to a determination of whether genuine issues of triable fact exist.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

The moving party bears the initial burden of informing the

Court of the basis for the motion and of establishing the

nonexistence of genuine issues of fact. Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). Once the moving party has made the

necessary showing, the non-moving party “must set forth specific

facts showing that there is a genuine issue for trial.” Anderson,

477 U.S. at 256. The “mere existence of a scintilla of evidence”

favoring the non-moving party will not prevent the entry of summary

judgment; the evidence must be such that a rational trier of fact

4

BARCUS, ET AL. V. AUSTIN 1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART THE DEFENDANT’S

MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND

DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]

could reasonably find for the nonmoving party. Id. at 248–52.

III. DISCUSSION

A. Austin’s Motion for Summary Judgment on Barcus & Shackleford’s

Claims

1. First & Fourteenth Amendment Claims Under the United

States Constitution

In order to resolve Austin’s motion for summary judgment on

Barcus and Shackleford’s First Amendment claim (Dkt. Nos. 145,

146), the Court must first identify the dispute at the heart of

this case. The parties do not contest what Barcus and Shackleford’s

responsibilities were as courthouse security officers. Id. Nor does

Austin contend that these positions were subject to patronage

dismissals or that their right to be free from patronage dismissals

was not clearly established at the time he fired them. Id. What

Austin does contend is that Barcus and Shackleford cannot

demonstrate that their political association with Skinner was a

substantial or motivating factor for their terminations (Dkt. No.

146 at 10-13). He also contends that they cannot rebut proof that

he would have terminated them anyway, regardless of their

association with Skinner, in order to save the county substantial

tax dollars. Id. at 13. Therefore, at bottom, Austin challenges

only Barcus and Shackleford’s ability to establish causation. Id.

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BARCUS, ET AL. V. AUSTIN 1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART THE DEFENDANT’S

MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND

DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]

at 8-13.

In the Fourth Circuit, courts employ the same causation

analysis for free association and speech claims under the First

Amendment. Bland v. Roberts, 730 F.3d 368, 375 (4th Cir. 2013).

“The plaintiff bears the initial burden of proving that his

exercise of his First Amendment rights was a substantial or

motivating factor in the employer’s decision to terminate him.” Id.

(cleaned up) (citations omitted). “And if the plaintiff satisfies

that burden, the defendant will avoid liability if he can

demonstrate, by a preponderance of the evidence, that he would have

made the same employment decision absent the protected expression.”

Id. (citations omitted).

Here, Austin asserts he had no knowledge that Barcus and

Shackleford had supported Skinner for Sheriff, nor did he terminate

every employee who supported Skinner (Dkt. No. 146 at 11). He

contends that Barcus and Shackleford have no evidence he fired them

because they supported Skinner. Id. This argument is without merit

for several reasons.

First, Barcus and Shackleford need not proffer direct evidence

that Austin knew about their political association with Skinner in

order to succeed on their First Amendment claim. See, e.g., Craig

6

BARCUS, ET AL. V. AUSTIN 1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART THE DEFENDANT’S

MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND

DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]

v. Bedford Cty., No. 6:17-CV-00028, 2018 WL 3130439, at *7-8 (W.D.

Va. June 26, 2018) (noting that, in the absence of direct evidence,

a jury could still reasonably rely on circumstantial evidence to

conclude that three of the defendants terminated the plaintiff

because of his political activity). It is sufficient if they have

“set forth specific facts showing that there is a genuine issue for

trial.” Anderson, 477 U.S. at 256. This they have clearly done.

First, Barcus and Shackleford openly supported Skinner’s re-

election effort by erecting campaign signs, campaigning door-to-

door, and displaying signs on their vehicles and in their yards

(Dkt. Nos. 145-2 at 5, 145-9 at 12). And after Austin won the

November 2016 election, but even before he assumed that office in

January 2017, he fired Barcus and Shackleford as courthouse

security officers (Dkt. Nos. 145-4, 145-5). When viewed in the

light most favorable to Barcus and Shackleford, these facts could

persuade a rational trier of fact that Barcus and Shackleford’s

political association with Skinner was a substantial or motivating

factor in their terminations. Anderson, 477 U.S. at 248. The fact

that Austin did not terminate every employee who supported Skinner

does not compel a contrary conclusion.

Furthermore, Barcus and Shackleford have sufficiently rebutted

7

BARCUS, ET AL. V. AUSTIN 1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART THE DEFENDANT’S

MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND

DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]

Austin’s claim that he would have fired them regardless of their

political association with Skinner in order to save substantial tax

dollars so as to create a genuine dispute of material fact for

trial. Austin attempts to avoid this conclusion by asserting that

his elimination of unnecessary courthouse security officers

decreased the county’s salary expenses by thousands of dollars each

month (Dkt. No. 146 at 11), and contends he did so in response to

numerous complaints from the community (Dkt. No. 145-1 at 9, 12-

13).

Barcus and Shackleford, however, note that——according to

Austin’s own testimony——these complaints came only from his

brother, Marvin Austin, and one of his campaign workers, Darla

Sevier (Dkt. Nos. 149 at 2; 145-1 at 12-13, 21). In other words,

the complainants were persons closely connected to Austin, not

members of the community at large. Moreover, during his deposition,

Austin denied that these complaints had anything to do with his

decision to fire Barcus and Shackleford (Dkt. No. 145-1 at 13).

Barcus and Shackleford further refute Austin’s claim that his

actions saved tax dollars by explaining that, after Austin fired

them, he re-tasked various employees to perform their work (Dkt.

No. 149 at 3). They contend that the salaries for these re-tasked

8

BARCUS, ET AL. V. AUSTIN 1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART THE DEFENDANT’S

MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND

DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]

employees were not reallocated to the “security budget,”

effectively understating the amount of money Austin actually spent

on courthouse security after he fired them. Id. To support this

contention, they generated a spreadsheet summarizing the payroll

records by pay period under Austin and compared this data to

comparable spending under Skinner (Dkt. No. 149-2).

According to this summary, Skinner spent approximately $2,790

per pay period on courthouse security while Austin spent

approximately $2,580 per pay period on courthouse security. Id. at

1. Significantly, Austin’s courthouse security expenditures

eventually increased to approximately $3,460 per pay period, id.,

thereby belying any claim that his firing of Barcus and Shackleford

saved substantial tax dollars. Although Austin challenges the

accuracy and reliability of these exhibits (Dkt. No. 151 at 2-3),

it is not this Court’s role to weigh and resolve conflicting

evidence on summary judgment. Anderson, 477 U.S. at 249 (“[T]he

judge’s function is not himself to weigh the evidence and determine

the truth of the matter but to determine whether there is a genuine

issue for trial.”).

2. Claims Under Sections 7, 10, and 11 of Article III of the

West Virginia Constitution

Austin also contends that he is entitled to summary judgment

9

BARCUS, ET AL. V. AUSTIN 1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART THE DEFENDANT’S

MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND

DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]

on Barcus and Shackleford’s state law claims under Sections 7, 10,

and 11 of Article III of the West Virginia Constitution (Dkt. No.

146 at 13-20). Before considering these claims, the Court first

addresses whether Barcus and Shackleford have stated a plausible

Section 16 claim.

I. Section 16 Claim

In their response opposing Austin’s motion for summary

judgment, Barcus and Shackleford “invoke” Sections 7, 11, and 162

of Article III of the West Virginia Constitution (Dkt. No. 149 at

8). Their Complaint, however, alleges only violations of Sections

7, 10, and 11, not Section 16 (Dkt. No. 1-1 at 4). Whether or not

facts exist that may support a Section 16 claim, “[a] plaintiff may

not amend his complaint through arguments in his brief in

opposition to a motion for summary judgment.” Shanahan v. City of

Chicago, 82 F.3d 776, 780 (7th Cir. 1996); see also Cumpston v.

Cent. Supply Co. of W. Va., No. 1:17CV61, 2018 WL 4855216, at *7

(N.D. W. Va. Oct. 5, 2018) (“[T]he Court will not allow [the

plaintiff] to amend his complaint at this late stage to avoid

2 Article 16 states: “The right of the people to assemble in a

peaceable manner, to consult for the common good, to instruct their

representatives, or to apply for redress of grievances, shall be

held inviolate.” W. Va. Const. art. III, § 16.

10

BARCUS, ET AL. V. AUSTIN 1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART THE DEFENDANT’S

MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND

DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]

summary judgment, especially when those facts where available to

him at the outset.”). The Court, therefore, declines to find a

plausible Section 16 claim in this case.

ii. Section 11 Claim

Section 11 of Article III of the West Virginia Constitution

states:

Political tests, requiring persons, as a

prerequisite to the enjoyment of their civil

and political rights, to purge themselves by

their own oaths, of past alleged offences, are

repugnant to the principles of free

government, and are cruel and oppressive. No

religious or political test oath shall be

required as a prerequisite or qualification to

vote, serve as a juror, sue, plead, appeal, or

pursue any profession or employment. Nor shall

any person be deprived by law, of any right,

or privilege, because of any act done prior to

the passage of such law.

W. Va. Const. art. III, § 11. As the United States District Court

for the Southern District of West Virginia has recently noted,

“Section 11 precedent is sparse, for explicit political and

religious tests are rare.” Billiter v. Jones, No. 3:19-0288, 2020

WL 118595, at *4 (S.D. W. Va. Jan. 9, 2020) (Chambers, J.). One

such example is “an 1866 law requiring attorneys to swear they had

not taken up arms against the United States or otherwise supported

the Confederacy during the Civil War.” Id. (citing Haddad v. Caryl,

11

BARCUS, ET AL. V. AUSTIN 1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART THE DEFENDANT’S

MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND

DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]

390 S.E.2d 210, 214 n.2 (W. Va. 1990) (citing Ex parte Hunter, 2 W.

Va. 122 (1867))).

Here, Barcus and Shackleford argue that Austin’s decision to

fire them for supporting his political opponent, a Democrat,

“evinces a political test of Republican affiliation . . . .” Id.

Their Complaint, however, does not allege that Austin required an

explicit or formal political oath from them or any other employee

of the Sheriff’s Office (Dkt. No. 1-1). Nor is there any such

evidence in the case.

To avoid summary judgment, Barcus and Shackleford merely quote

Section 11’s text in a footnote and claim, without citation to any

law or fact, that “Austin violated that scripture in this case”

(Dkt. No. 149 at 11 n.3). But this bold assertion falls woefully

short of “set[ting] forth specific facts showing that there is a

genuine issue for trial.” Anderson, 477 U.S. at 256.

Critically, Section 11’s history and text, and case law

discussing Section 11, “indicate [that it] is directed at formal,

overt tests established in statutes, regulations, oath

requirements, and the like. Claims of unlawful decision-making by

an individual based on political belief and affiliation belong

under [S]ections 7 and 16.” Billiter, 2020 WL 118595, at *4

12

BARCUS, ET AL. V. AUSTIN 1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART THE DEFENDANT’S

MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND

DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]

(granting motion to dismiss Section 11 claim). In other words,

because Barcus and Shackleford allege biased decision-making by

Austin, and not a formal test, their Section 11 claim fails on its

merits.3

iii. Section 10 Claim

Barcus and Shackleford’s Section 10 claim fares no better.

Section 10 states that “[n]o person shall be deprived of life,

liberty, or property, without due process of law, and the judgment

of his peers.” W. Va. Const. art. III, § 10. This section “requires

procedural safeguards against State action which affects a liberty

or property interest.” W. Va. Bd. of Educ. v. Marple, 783 S.E.2d

75, 85 (W. Va. 2015) (citation omitted). Under West Virginia law,

courts must employ a “two-step inquiry to determine whether a state

employer infringed on its employee’s liberty or property interest:

(1) did the employee have a liberty or property interest at stake;

and (2) if so, how much process is he/she entitled under [the] Due

Process Clause”? Id. (citation omitted).

3 Because Barcus and Shackleford’s Section 11 claim fails on its

merits, the Court need not address whether there is a state tort

claim under Article III of the West Virginia Constitution for money

damages.

13

BARCUS, ET AL. V. AUSTIN 1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART THE DEFENDANT’S

MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND

DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]

a. Property Interest

It is well settled under federal and state constitutional law

“that government employment can be a property interest, but the

employee ‘must have more than a unilateral expectation of it.’”

Billiter, 2020 WL 118595, at *3 (quoting “Bd. of Regents v. Roth,

408 U.S. 564, 577 (1972)); see also Kessel v. Monongalia Cty. Gen.

Hosp. Co., 600 S.E.2d 321, 327-28 (W. Va. 2004) (holding that a

property interest “must be more than a unilateral expectation of

continued employment”). Indeed, “a person must possess a legitimate

claim of entitlement to it——created, for example, by contract or

state law.” Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d

292, 307 n.14 (4th Cir. 2006) (citing Roth, 408 U.S. at 577-78).

Here, Barcus and Shackleford’s Complaint does not allege a

property interest in their employment as courthouse security

officers (Dkt. No. 1-1). Nor does it allege any “contracts,

statutory provisions, or implied promises from which the Court

could infer [their] employment was something other that at-will,”

Billiter, 2020 WL 118595, at *3, which is presumed under West

Virginia law, Younker v. E. Associated Coal Corp., 591 S.E.2d 254,

257 (W. Va. 2003). Tellingly, Barcus and Shackleford never discuss

Section 10 in their response opposing summary judgment (Dkt. No.

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BARCUS, ET AL. V. AUSTIN 1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART THE DEFENDANT’S

MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND

DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]

149).

Even assuming they have not conceded the issue, “[a] local

government employee serving ‘at the will and pleasure’ of the

government employer has no legitimate expectancy of continued

employment and thus has no protectible property interest.” Jenkins

v. Weatherholz, 909 F.2d 105, 107 (4th Cir. 1990). Accordingly,

Barcus and Shackleford’s property interest claim under Section 10

cannot withstand summary judgment.

b. Liberty Interest

“A liberty interest is implicated when the state makes a

charge against the individual that might seriously damage his

standing and associations in the community or places a stigma or

other disability on him that forecloses future employment

opportunities.” McGraw, 800 S.E.2d at 237 (citation omitted). Under

West Virginia law, “a government employer implicates its employee’s

liberty interest in his/her good name when the following elements

are alleged: (1) a stigmatizing statement; (2) which was false; (3)

was published, or made accessible to the public; (4) in connection

with a serious adverse employment action.” Id. at 239. “When these

elements are met, the employee must be afforded procedural

safeguards under Article III, Section 10 of the West Virginia

15

BARCUS, ET AL. V. AUSTIN 1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART THE DEFENDANT’S

MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND

DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]

Constitution.” Id.

Here, Barcus and Shackleford’s Complaint never alleges how

Austin’s actions implicated their liberty interest (Dkt. No. 1-1),

much less any of the four elements required by McGraw. Id. Nor do

Barcus and Shackleford discuss Section 10 in their response

opposing summary judgment (Dkt. No. 149). Therefore, having failed

even to allege the requisite elements of a liberty interest claim,

Barcus and Shackleford’s claim under Section 10 is not plausible.

iv. Section 7 Claim

Section 7 states:

No law abridging the freedom of speech, or of

the press, shall be passed; but the

Legislature may, by suitable penalties,

restrain the publication or sale of obscene

books, papers, or pictures, and provide for

the punishment of libel, and defamation of

character, and for the recovery, in civil

actions, by the aggrieved party, of suitable

damages for such libel, or defamation.

W. Va. Const. art. III, § 7.

Here, Austin concedes that the protections set forth in

Section 7 are coextensive with those of the First Amendment (Dkt.

No. 146). Indeed, as the Supreme Court of Appeals of West Virginia

has explained, the First Amendment and Section 7 “extend a

protection to governmental employees to be free from employment

16

BARCUS, ET AL. V. AUSTIN 1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART THE DEFENDANT’S

MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND

DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]

decisions made solely for political reasons.” Adkins v. Miller, 421

S.E.2d 682, 683 (W. Va. 1992). Having already concluded that there

are genuine issues of material fact in dispute that preclude

summary judgment as to Barcus and Shackleford’s First Amendment

claim, the Court denies as well Austin’s motion for summary

judgment on their Section 7 claim.

B. Austin’s Motion for Summary Judgment on Shipp’s Claims

1. First & Fourteenth Amendment Claims Under the United

States Constitution

Austin contends that Shipp’s First Amendment claim cannot

proceed because his termination was an employment decision

permitted under the Elrod-Branti exception to the general rule

protecting public employees from being fired for their political

associations (Dkt. Nos. 147, 148).4 And even if Shipp’s termination

was not permissible, Austin asserts that he is entitled to

qualified immunity because Shipp’s First Amendment right not to be

terminated for his political association with Skinner was not

clearly established at the time of his termination. Id. Both claims

are wholly lacking in merit.

4 Because neither party has invoked the Pickering-Connick doctrine,

the Court need not address it. See Lawson v. Union Cty. Clerk of

Court, 828 F.3d 239, 251-53 (4th Cir. 2016).

17

BARCUS, ET AL. V. AUSTIN 1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART THE DEFENDANT’S

MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND

DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]

Generally, the freedom to associate under the First Amendment

“prohibits government officials from terminating public employees

solely for supporting political opponents.” McCaffrey v. Chapman,

921 F.3d 159, 164 (4th Cir. 2019). The Supreme Court of the United

States has, however, created an exception to this general rule in

Elrod v. Burns, 427 U.S. 347 (1976), which it later clarified in

Branti v. Finkel, 445 U.S. 507 (1980).

In Elrod, a plurality of the Supreme Court explained that

government officials may lawfully terminate a public employee for

his or her political association if he or she holds a policymaking

position. 427 U.S. at 367. In Branti, the Supreme Court clarified

that “the ultimate inquiry is . . . whether the hiring authority

can demonstrate that party affiliation is an appropriate

requirement for the effective performance of the public office

involved.” 445 U.S. at 518. It reasoned that “if an employee’s

private political beliefs would interfere with the discharge of his

public duties, his First Amendment rights may be required to yield

to the State’s vital interest in maintaining governmental

effectiveness and efficiency.” Id. at 517.

To determine whether political association is a legitimate job

requirement, the Fourth Circuit has established a two-step inquiry.

18

BARCUS, ET AL. V. AUSTIN 1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART THE DEFENDANT’S

MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND

DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]

Courts must first determine whether the public position at issue

involves partisan interests. Stott v. Haworth, 916 F.2d 134, 141

(4th Cir. 1990) (citation omitted). In other words, “does the

position involve government decisionmaking on issues where there is

room for political disagreement on goals or their implementation?”

Id. (citation omitted). If the “first inquiry is satisfied, the

next step is to examine the particular responsibilities of the

position to determine whether it resembles . . . an office holder

whose function is such that party affiliation is an equally

appropriate requirement.” Id. at 142 (citation omitted).

This inquiry, therefore, requires the Court to review and

consider Shipp’s duties and responsibilities as Austin’s secretary

or administrative assistant. See Lawson, 828 F.3d at 248 (reviewing

“the general duties of deputies in the Union County Clerk’s Office”

to determine whether it “satisf[ies] the first prong of Stott”);

Snyder v. Blagojevich, 332 F. Supp. 2d 1132, 1136 (N.D. Ill. 2004)

(“As a threshold matter, it is essential to clarify what universe

of job responsibilities dictates whether a job is within the Elrod-

Branti exception.”).

Here, the parties vigorously dispute Shipp’s job

responsibilities. Austin contends they included discussing policies

19

BARCUS, ET AL. V. AUSTIN 1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART THE DEFENDANT’S

MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND

DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]

or violations of policies, research, and representing the Sheriff

to other county officials (Dkt. No. 148 at 3). Shipp, however,

asserts he only performed basic secretarial and administrative

duties (Dkt. Nos. 150 at 1, 145-3 at 12). There is no written job

description for Shipp’s former position. Thus, there is a factual

dispute about what his job responsibilities included that precludes

Austin’s claim for qualified immunity at this stage of the

litigation.5 Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003)

(“A defendant is entitled to summary judgment on the grounds of

qualified immunity when there is no genuine issue of material fact

. . . .”).

Austin further argues that, because he did not know what

Shipp’s job title and responsibilities were at the time he fired

him (Dkt. No. 148 at 10), it was reasonable for him to believe it

was constitutional to terminate Shipp’s employment based on

political association. Id. at 9-10. It is well established,

however, that the Elrod-Branti exception is based in part on the

nature of an employee’s responsibilities.

In Elrod, the Supreme Court concluded that the political

5 Only after a jury resolves this factual dispute will the Court be

able to determine whether Shipp’s position satisfies Stott’s two-

step inquiry as a matter of law.

20

BARCUS, ET AL. V. AUSTIN 1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART THE DEFENDANT’S

MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND

DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]

beliefs of the employees at issue (including, among others, a

process server, bailiff, and security guard), would not interfere

with the discharge of their public duties because they were

“nonpolicymaking, nonconfidential” employees. 427 U.S. at 375. In

Branti, the Supreme Court clarified that the ultimate inquiry is

“whether . . . party affiliation is an appropriate requirement for

the effective performance of the public office involved.” 455 U.S.

at 518.

Thus, it was long established prior to Austin’s election in

November 2016 that the application of the Elrod-Branti exception

turns on whether the position at issue involves room for political

disagreement, and, if so, whether the employee’s political beliefs

would interfere with the discharge of his or her public duties,

making political association an appropriate job requirement. See

Branti, 445 U.S. at 517-18; Stott, 916 F.2d at 141-42. To conclude

otherwise would enable employers to avoid liability simply by

claiming ignorance of an employee’s responsibilities. Tellingly,

Austin has cited no case granting qualified immunity to an employer

who terminated an employee——without knowledge of their

responsibilities——based on their political associations or speech

(Dkt. Nos. 148, 152).

21

BARCUS, ET AL. V. AUSTIN 1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART THE DEFENDANT’S

MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND

DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]

Austin’s reliance on Billingsley v. St. Louis Cty., 70 F.3d 61

(8th Cir. 1995), to rebut this conclusion is misplaced. There, the

United States Court of Appeals for the Eighth Circuit held that an

administrative assistant to a county councilman did not have a

clearly established right to be free from patronage dismissal

because she was the “sole” intermediary between the councilman and

his constituents and “performed a broad range of duties that dealt

with sensitive issues including proposed legislation to county

development projects.” Billingsley, 70 F.3d at 64. Nevertheless,

when determining whether a constitutional right is clearly

established, the Supreme Court has warned that “courts may not

resolve genuine disputes of fact in favor of the party seeking

summary judgment.” Tolan v. Cotton, 572 U.S. 650, 656 (2014)

(citations omitted).

Here, not only do the parties dispute Shipp’s job

responsibilities, these disputed responsibilities also differ

significantly from those at issue in Billingsley. For example, as

a secretary or administrative assistant to the county’s chief law

enforcement officer, Shipp did not act as the “sole” intermediary

between Austin and his constituents because a sheriff primarily

acts through his deputies, who are subject to patronage dismissals.

22

BARCUS, ET AL. V. AUSTIN 1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART THE DEFENDANT’S

MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND

DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]

See McCaffrey, 921 F.3d 159. Although the position at issue in

Billingsley may be similar in name, courts——and thus public

employers——must “examine the job duties of the position, and not

merely the title, of those dismissed.” Jenkins, 119 F.3d at 1165

(“We issue this limitation to caution sheriffs that courts examine

the job duties of the position, and not merely the title, of those

dismissed.”). In this case, where material facts are in dispute,

that determination is for the jury not the court.

2. Claims Under Sections 7, 10, and 11 of Article III of the

West Virginia Constitution

Austin also contends that he is entitled to summary judgment

on Shipp’s state law claims under Sections 7, 10, and 11 of Article

III of the West Virginia Constitution (Dkt. No. 148 at 12-19).

I. Section 16 Claim

Like Barcus and Shackleford, Shipp invokes Section 16 in his

response opposing summary judgment (Dkt. No. 150 at 4); also like

Barcus and Shackleford, he never alleged a Section 16 claim in his

Complaint (Dkt. No. 1-1). Therefore, Shipp cannot “amend his

complaint at this late stage to avoid summary judgment . . . .”

Cumpston, 2018 WL 4855216, at *7.

ii. Section 11 Claim

Austin is entitled to summary judgment on Shipp’s Section 11

23

BARCUS, ET AL. V. AUSTIN 1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART THE DEFENDANT’S

MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND

DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]

claim because, like Barcus and Shackleford, Shipp never alleged

that Austin required an explicit or formal political oath (Dkt. No.

1-1). Nor is there any evidence otherwise (Dkt. No. 150).6

iii. Section 10 Claim

Austin also is entitled to summary judgment on Shipp’s Section

10 claim. As previously discussed, like Barcus and Shackleford,

Shipp never alleged a property interest in his employment as a

secretary or administrative assistant, and has not made out the

requisite elements of a liberty interest claim (Dkt. No. 1-1).

iv. Section 7 Claim

Finally, Austin is not entitled to summary judgment on Shipp’s

Section 7 claim because the protections of Section 7 and the First

Amendment are coextensive, and the Court has previously concluded

that there is a genuine dispute of material fact on Shipp’s First

Amendment claim.

C. Austin’s Motion to Strike

On March 9, 2020, the Plaintiffs filed a letter, which

included supplemental authority opposing Austin’s motions for

summary judgment (Dkt. No. 154). On March 17, 2020, Austin moved to

6 Because Shipp’s Section 11 claim fails on its merits, the Court

need not address whether there is a state tort claim under Article

III of the West Virginia Constitution for money damages.

24

BARCUS, ET AL. V. AUSTIN 1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART THE DEFENDANT’S

MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND

DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]

strike the letter because the Plaintiffs failed to obtain leave of

Court to file a surreply (Dkt. No. 157). This issue is moot because

the Court has not considered the supplemental authority.

IV. CONCLUSION

For the reasons discussed, the Court:

(1) GRANTS IN PART AND DENIES IN PART Austin’s motion for

summary judgment on Barcus and Shackleford’s claims (Dkt.

No. 145;

(2) GRANTS IN PART AND DENIES IN PART Austin’s motion for

summary judgment on Shipp’s claims (Dkt. No. 147); and

(3) DENIES AS MOOT Austin’s motion to strike (Dkt. No. 157).

It is so ORDERED.

The Court DIRECTS the Clerk to transmit copies of this Order

to counsel of record.

DATED: April 16, 2020

/s/ Irene M. Keeley

IRENE M. KEELEY

UNITED STATES DISTRICT JUDGE

25