Summe v. Kenton County Clerk's Office

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0128p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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ALINE SUMME,

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Plaintiff-Appellant,

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No. 09-5794

v.

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KENTON COUNTY CLERK’S OFFICE; RODNEY

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ELDRIDGE, Individually as Kenton County

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Clerk; KENTON COUNTY, KENTUCKY,

Defendants- Appellees. N

Appeal from the United States District Court

for the Eastern District of Kentucky at Covington.

No. 07-00068—William O. Bertelsman, District Judge.

Argued: March 4, 2010

Decided and Filed: May 10, 2010

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Before: CLAY and McKEAGUE, Circuit Judges; POLSTER, District Judge.

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COUNSEL

ARGUED: Gail M. Langendorf, BUSALD FUNK ZEVELY, P.S.C., Florence,

Kentucky, for Appellant. Beverly R. Storm, ARNZEN, MOLLOY & STORM, P.S.C.,

Covington, Kentucky, Stacy Marie Hege, LAW OFFICE, Covington, Kentucky, for

Appellees. ON BRIEF: Gail Marie Langendorf, BUSALD FUNK ZEVELY, P.S.C.,

Florence, Kentucky, for Appellant. Beverly R. Storm, ARNZEN, MOLLOY &

STORM, P.S.C., Covington, Kentucky, Stacy Marie Hege, LAW OFFICE, Covington,

Kentucky, for Appellees.

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The Honorable Dan Aaron Polster, United States District Judge for the Northern District of Ohio,

sitting by designation.

1

No. 09-5794 Summe v. Kenton County Clerk’s Office, et al. Page 2

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OPINION

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DAN AARON POLSTER, District Judge. In November 2006, Rodney Eldridge

defeated Aline Summe, then-Chief Deputy County Clerk, in a campaign for the position

of County Clerk in Kenton County, Kentucky. Shortly thereafter, Eldridge sent a letter

to all County Clerk’s office employees directing them to submit applications for rehire.

In December 2006, Eldridge sent letters to Summe and seven deputy clerks who

supported her campaign, notifying them that he was discontinuing their employment

beginning January 1, 2007. Summe subsequently commenced this action in the Eastern

District of Kentucky, alleging a claim against Eldridge for unlawful patronage dismissal

in violation of the First Amendment, a claim against Kenton County for violating her

constitutional privacy rights by disseminating certain personnel records during the

campaign, and various state law claims against both Defendants.1 The district court

issued an opinion and order granting summary judgment to Defendants on all federal

claims, and declining to exercise pendent jurisdiction over the state law claims. Summe

appeals the district court’s rulings dismissing with prejudice the federal claims. For the

reasons to follow, we AFFIRM.

I. FACTUAL BACKGROUND

Summe was employed as the Director of the Kenton County Animal Shelter from

its inception in 1985. In August 2003, the Kenton County Fiscal Court referred all the

Animal Shelter employees, including Summe, to St. Elizabeth Hospital’s Employee

Assistance Program (“EAP”) in an effort to address office conflict and employee morale.

As part of the intervention, EAP Director Tina Rich met individually with the employees

1

Six of the seven co-workers who were discharged filed a companion case against Eldridge and

the County for unlawful patronage dismissal in violation of the First Amendment. Lois Davis, et al. v.

Kenton County Clerk’s Office, et al., No. 2:07-cv-00067-WOB (E.D. Ky.) (Eldridge later re-employed

the one co-worker who did not join the suit.) Discovery in the companion case and Summe’s case was

conducted simultaneously, and the same deposition transcripts and exhibits were used to support and

oppose summary judgment motions filed in both cases. Eldridge filed a motion for summary judgment

regarding the claims of two of the six plaintiffs. The district court denied that motion and, on the eve of

trial, the parties settled the case.

No. 09-5794 Summe v. Kenton County Clerk’s Office, et al. Page 3

and issued a report on August 13, 2003 to the Fiscal Court’s Deputy Judge Executive,

Scott Kimmich (“the EAP report”). The report was highly critical of Summe’s

management and leadership skills. Rich made specific recommendations and formulated

an action plan, with particular emphasis on management skills training, to help remedy

the personnel problems. Rich admitted, however, that a tremendous amount of damage

had already been done, and questioned whether the parties could set aside their

differences and repair their working relationships. Upon reviewing the EAP report,

Kimmich sent a memorandum to Summe advising her of the report’s conclusions,

informing her of the action plan, and requiring her to cooperate with the plan as an

alternative to termination as Animal Shelter Director (“the Kimmich letter”). Summe

denied that the report accurately portrayed the working environment at the Shelter and

believed that Rich was biased against her. Thus, she refused to continue meeting with

Rich after a few sessions, and asked to meet with someone at St. Elizabeth’s other than

Rich. As a result, Summe was fired. Summe appealed her termination, and the parties

entered into a settlement agreement permitting her to resign.

On December 16, 2003, the Kenton County Fiscal Court received an open

records request from a citizen named Randy Skaggs, who was associated with a no-kill

sanctuary for dogs and cats. Mr. Skaggs requested all documents relating to Summe’s

removal as the director of the Animal Shelter. The records custodian denied the request

on the basis that the records were personal in nature and would unlawfully invade

Summe’s privacy. Skaggs appealed the ruling to the Kentucky Attorney General who

found that the Fiscal Court had violated the Open Records Act when denying Skaggs’

request. The records, however, were never released to Mr. Skaggs.

In March 2004, then-County Clerk William Aylor invited Summe to work for

him as a deputy clerk on a part-time basis. The County Clerk’s office is headquartered

in Covington, with a second office located in Independence. Summe worked in every

department in both offices until she was promoted to supervisor of the Independence

office. As supervisor, Summe oversaw the work of her subordinates, discussed and

resolved issues involving their schedules, vacation time, lunch hours and break time, and

No. 09-5794 Summe v. Kenton County Clerk’s Office, et al. Page 4

responded to customers’ questions and complaints. Summe moved subordinates to

different locations within the Independence office, but could not hire or fire people

without Aylor’s authorization.

While Summe was supervising the Independence office, the idea of cross-training

began to germinate. Summe explains:

I realized at the first Christmas party that half the people didn’t even

know each other and they had been there over 20 years, some of them.

And I was just surprised that, you know, more of them didn’t do more

things. Because one of the things about floating from office to office,

and from department to department, I could see where there were some

shortages of help in some of the departments, and places where there

were people that didn’t have enough to do in other departments.

And so just talking to fellow employees and different supervisors,

we talked about cross-training, and I got the feeling that people wanted

to be more helpful and do more things because some of them were bored

with their jobs. So that’s how the idea got started.

(R. 31 at 34-35.) Summe explained that cross-training employees would make the

Clerk’s offices run more efficiently and improve customer satisfaction:

If you went to Covington and you had to file a lien and you had to buy

a registration, you had three different offices you had to go to. And it

was hard for me not to want to do everything for you because I knew

how to do it. We had done it in Independence that way. And we were

trying to get it so that people weren’t frustrated with the fact that they

had to now get out of line and go to another office and get a lien, and

then go here and get a registration, and then they could finally come back

to me and get the title transferred. So it was more to do with making it

a more efficient setup than the way it was being run.

(Id. at 50.) Summe further observed that the deputy clerks would be able to cover their

co-workers’ duties when shorthanded.

On May 11, 2006, Aylor appointed Summe to the position of Chief Deputy

County Clerk (or “Chief Deputy”), the primary purpose of which was to organize and

implement the cross-training program. Aylor sent a memo to all Kenton County deputy

clerks announcing the appointment:

No. 09-5794 Summe v. Kenton County Clerk’s Office, et al. Page 5

I have appointed Aline Summe to the position of Chief Deputy Clerk. In

this position she will be handling all personnel issues in both the

Independence and Covington office[s]. She will be scheduling an

individual meeting with each deputy clerk and would like to have the

attached form completed and returned before the meetings. Meetings

will begin May 18th.

(R. 49, Ex. 1.) Summe had the clerks fill out forms stating what jobs they had

performed, whether they had worked in departments other than the ones in which they

were presently working, and if they were willing to work in both the Covington and

Independence offices if needed. She then planned to meet with the supervisors and

clerks individually to discuss their duties and the program. Summe had business cards

made for herself that she put on counters in both offices so that if customers complained

about the service, they would be referred to Summe who could explain the cross-training

program and the expectation of more efficient service in the future. As Chief Deputy,

Summe could make recommendations to Aylor about hiring and firing and transferring

employees, but Aylor had the final say on such decisions. This appears to be the general

consensus of the clerks, who testified that, other than the cross-training program and

business cards, they had little contact with Summe, took up employment issues directly

with their own supervisors, and contacted Summe before speaking directly to Mr. Aylor.

Although Summe was appointed Chief Deputy, she retained her duties as

supervisor of the Independence office where she worked one or two days a week. She

spent the rest of the week in Covington, where she ran the cross-training program and

covered for deputy clerks on their lunch hours. A deputy clerk named Linda Trenkamp

ran the Independence office in Summe’s absence, but she was not promoted to

supervisor and consulted Summe daily about matters arising in that office.

Some time after Summe was promoted to Chief Deputy, Aylor announced that

he was not running for re-election. Summe decided to run for his position as the

Democratic candidate against Rodney Eldridge, the Republican candidate. Eldridge was

a paralegal who frequented the County Clerk’s office over many years to perform tasks

related to his work at a law firm.

No. 09-5794 Summe v. Kenton County Clerk’s Office, et al. Page 6

On October 24, 2006, just prior to the election, David Sizemore, a dog breeder

with whom Summe had conflicts at the Animal Shelter, made an open records request

to Kenton County Records Custodian Joe Shriver for records relating to a reprimand

Summe received in 1995, the paperwork relating to her resignation from the Shelter in

2003, and any other derogatory evaluations or reprimands she had received while

working for the County. Three days later, he made a second open records request

seeking all documents relating to the EAP report, investigation and action plan. Shriver

released 13 pages of records, including the EAP report and the Kimmich letter, to

Sizemore who apparently wasted no time sharing those records with the local media and

others. A copy of the EAP report was left in the mailbox of one of the deputy clerks

who supported Summe’s campaign, with a note stating “something to read when you are

out of a job January 1, 2007.” (R. 56-11.) Eldridge claims he did not see the records

until they appeared, unsolicited, at his house. On October 28, 2006, one day after the

records were released to Sizemore, a local newspaper ran an article that discussed, and

quoted from, the released records. The article included Eldridge’s comment that “the

disclosure shows he is the better candidate to lead the clerk’s office, which oversees

property and legal records, licenses motor vehicles and administers elections.” (R. 56-

9.)

In November 2006, Eldridge won the election, after which the Director of the

Kentucky Association of Counties sent him a letter warning him about unlawful

patronage dismissals. After receiving the letter and without consulting anyone, Eldridge

sent letters to all deputy clerks directing them to reapply for their positions. In

December 2006, again without consulting anyone, Eldridge sent letters to Summe and

six clerks who supported her campaign, terminating their positions beginning January

1, 2007. He did not interview any of the terminated employees prior to firing them.

Although downsizing the County Clerk’s office was one of Eldridge’s campaign

priorities, he replaced the seven terminated employees with thirteen campaign

contributors and supporters, many of whom did not file applications or submitted them

after he had already offered them jobs. And while Eldridge retained a number of

No. 09-5794 Summe v. Kenton County Clerk’s Office, et al. Page 7

employees who supported Summe, he demoted or transferred two of them and promoted

three employees who supported him.

Before entering office, Eldridge determined the salaries of all employees in the

County Clerk’s office. The evidence shows that he gave considerably higher salaries to

new hires than incumbent employees, and he gave considerable raises to incumbent

employees who supported him and modest raises to those who did not. At deposition,

Eldridge was unable to explain the disparities.

Eldridge testified that he decided to fire the seven women not because of the

content of their applications, but based on his personal observations of them and brief

exchanges he had with certain of their co-workers while he was conducting business at

the County Clerk’s office. Eldridge repeatedly claimed that the fired employees had

attitude problems, were rude or disrespectful or had attendance problems, throwing in

an occasional example. He testified that this conduct did not align with his vision of

upgrading customer service.

Eldridge testified that Summe applied for the position of Chief Deputy, but that

he chose not to fill the position immediately. In March 2007, Eldridge promoted a

campaign supporter named Danny Miles, whom he initially hired on a part-time basis,

to the position of Chief Deputy. Eldridge testified that he wanted someone for the

position who would be a confidential advisor and help him run the office and elections,

handle personnel and staffing issues, and run the office in his absence. Eldridge

explained that he fired Summe because he did not like her management style.

II. PROCEDURAL BACKGROUND

On March 28, 2007, Summe commenced this action asserting a claim against

Eldridge in his individual and official capacities for unlawful patronage dismissal in

violation of the First Amendment, a claim against Kenton County for violating her

constitutional privacy rights by disseminating her alleged medical records during her

campaign, and various state law claims against both Defendants.

No. 09-5794 Summe v. Kenton County Clerk’s Office, et al. Page 8

Eldridge initially filed a motion to dismiss the First Amendment claim against

him on the ground that Summe’s position fell within one of the exceptions to the rule

against unconstitutional patronage dismissals. The district court overruled the motion

in order to permit Summe to conduct discovery on this question.2 Upon completion of

discovery, Eldridge and the County filed summary judgment motions, seeking dismissal

of the entire case. The district court granted summary judgment in their favor on the

federal claims, and dismissed the state law claims without prejudice. Summe timely

appealed the district court’s rulings on the constitutional claims.

III. ANALYSIS

A. Standard of Review

The Sixth Circuit reviews de novo the district court’s order granting summary

judgment to the defendants. Edgar v. City of Collierville, 160 Fed. Appx. 440 (6th Cir.

Dec. 14. 2005) (citing Thaddeus-X v. Blatter, 175 F.3d 378, 385 (6th Cir. 1999)).

B. Patronage Dismissal Claim Against Eldridge

Summe alleges a claim against Eldridge, in his individual and official capacities,

for violating her First Amendment rights when he terminated her employment. Summe’s

First Amendment claim arises under 42 U.S.C. § 1983. In order to establish a violation

of § 1983, Summe must show that Eldridge deprived her of a constitutional right while

acting under color of state law. Lane v. City of Lafollette, Tenn., 490 F.3d 410, 418 (6th

Cir. 2007) (citation omitted).

In Elrod v. Burns, 427 U.S. 347 (1976), the Supreme Court held that patronage

dismissals (i.e., dismissals for failure to support a particular candidate or party) violate

the First Amendment. In Branti v. Finkel, 445 U.S. 507, 517 (1980), the Supreme Court

recognized that, although patronage dismissals are generally unconstitutional, “party

affiliation may be an acceptable requirement for some types of government

2

As noted supra, at 2 n. 1, this case and the companion case were managed and discovery was

conducted, as if they were one case. The same deposition transcripts and exhibits were used by the parties

in this, and the companion, case in support of, and opposition to, summary judgment motions filed below.

No. 09-5794 Summe v. Kenton County Clerk’s Office, et al. Page 9

employment.” Id. “While these positions have been referred to as ‘policymaking’ or

‘confidential,’ whether those labels appropriately fit the position under consideration is

not the ultimate inquiry.” Lane, 490 F.3d at 419 (citing Branti, 445 U.S. at 518). 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.” Id. To determine whether political afilliation is appropriate in making a

personnel decision, “we must examine the inherent duties of that position and the duties

that the new holder of that position will perform.” Baker v. Hadley, 167 F.3d 1014, 1018

(6th Cir. 1999) (quoting Faughender v. City of N. Olmsted, 927 F.2d 909, 913 (6th Cir.

1991)). While making this determination does not depend on the plaintiff’s actual job

duties, those duties “may nonetheless serve as evidence of the duties inherent in the

position.” Id. (quoting Feeney v. Shipley, 164 F.3d 311, 320 (6th Cir. 1999)). The

Supreme Court has held that Elrod and Branti apply to patronage promotion and hiring

practices as well as to dismissals. Rutan v. Republican Party of Ill., 497 U.S. 62 (1990).

In McCloud v. Testa, 97 F.3d 1536, 1557 (6th Cir. 1996), the Sixth Circuit

outlined four categories of government positions that will always qualify for patronage

exceptions: (1) those that are specifically named in a relevant statute or that are charged

with the discretionary authority to carry out the law or other policy of political concern;

(2) a position to which discretionary decisionmaking of the first category has been

delegated; (3) confidential advisors who spend a significant amount of their time

advising category-one employees on how to exercise their statutory policymaking

authority, or other employees who control the lines of communications to category-one

employees; and (4) positions filled to balance out party representation.

The burden of proof for patronage cases was set forth in Branti. First, a plaintiff

must make out a prima facie case that she was discharged (or, in this case, not rehired)

because of political affiliation. Branti, 445 U.S. at 518; see also Faughender, 927 F.2d

at 915 (citing the plurality in Elrod, 427 U.S. at 367). If the plaintiff succeeds in making

that showing, the defendant must then show that the position is of a type that would

qualify for an exception to the rule against patronage dismissals. Id.

No. 09-5794 Summe v. Kenton County Clerk’s Office, et al. Page 10

Initially, there is some confusion as to whether Summe made out a prima facie

case that the decision not to rehire her was based on her political affiliation. Below,

Eldridge assumed for summary judgment purposes that Summe was able to make her

prima facie case. In granting summary judgment, the district court assumed she had

established her prima facie case. On appeal, Summe asserts that she did in fact establish

a prima facie case of patronage dismissal, while Eldridge denies that political affiliation

had anything to do with his decision, and that he fired her because of her management

skills.

Lest there be any doubt about this question, we find that Summe established a

prima facie case that Eldridge’s decision not to rehire her was based on her political

affiliation. The undisputed evidence shows that the seven employees Eldridge dismissed

supported Summe’s campaign and Eldridge knew it. He required all employees in the

office to submit their applications for rehire to him, but he never interviewed any of

them and does not remember anything about their applications. Although Eldridge

“intended to increase the efficiency and fiscal responsibility of the office by decreasing

the number of employees in the Clerk’s Office” (R. 26-2 ¶ 8), he replaced the seven

people he fired with thirteen campaign supporters and/or contributors. He offered them

jobs without requiring them to file applications or allowed them to file late applications.

He gave the new employees larger salaries than the incumbent clerks, and he gave the

incumbent clerks who supported him considerably larger raises than those who did not.

He made the salary decisions before entering office and could not explain the basis for

the salary disparities. Based on the undisputed evidence, we conclude that Summe

established a prima facie case that Eldridge fired her based on her political affiliation.

1. McCloud Category-Two Position

Having made that determination, we must next decide whether Eldridge showed

that Summe’s position falls within any of the McCloud exceptions. The district court

determined that Summe’s position as Chief Deputy was a McCloud category-two

position. To show that a plaintiff falls within a McCloud category-two position, the

defendant must show that the position is one to which a significant amount of the total

No. 09-5794 Summe v. Kenton County Clerk’s Office, et al. Page 11

discretionary authority available to category-one employees has been delegated.

McCloud, 97 F.3d at 1557. In reaching the conclusion that the position of Chief Deputy

is a category-two position, the district court found that County Clerk Aylor had

delegated a substantial part of his discretionary authority to Summe. She reported

directly to Aylor, instituted and implemented the cross-training program, altered

employee lunch hours and assigned employees to different stations and locations.

The record supports the district court’s finding and we agree with the district

court’s conclusion. In an affidavit filed in support of Eldridge’s summary judgment

motion, Aylor averred that he delegated a portion of his discretionary authority as

Kenton County Clerk to Summe in her position as his Chief Deputy. (R. 26-3 ¶ 5.) He

avers that it was his intention in appointing her as his Chief Deputy, “and in fact [she]

did, take over the responsibility for running various aspects of the Clerk’s Office on a

day to day basis subject only to [his] final authority.” (R. 26-3 ¶ 3.) He avers that she

“instituted a ‘cross-training program,’ reassigned personnel, promoted and demoted

personnel, changed starting times, lunch breaks and vacations, subject to [his] final

approval.” (Id. ¶ 4.) The deposition testimony of Summe and her co-workers supports

Aylor’s averments.

Summe argues that her position as Chief Deputy does not fall within the second

McCloud category for three reasons: 1) her duties did not change after she was appointed

Chief Deputy; 2) she was nothing more than a supervisor with a glorified title; and 3) she

should be treated the same as Donna Wood, a supervisor of deputy clerks in the Kenton

County Clerk’s real estate department, whom the district court concluded, in the

companion case, was not a McCloud category-two employee.

Addressing the last argument first, the district court’s decision in the companion

case does not support Summe’s claim that her position as Chief Deputy is not a McCloud

category-two position. See Davis v. Kenton County Clerks Office, No. 2007-67 (WOB),

2009 WL 1684410 (E.D. Ky. Jun. 16, 2009). Donna Wood’s duties as supervisor of the

real estate department were similar to Summe’s duties as supervisor of the Independence

office. Id. at *4. The court found that Wood was responsible for maintaining employee

No. 09-5794 Summe v. Kenton County Clerk’s Office, et al. Page 12

time records, approving leave requests, answering questions and making decisions on

some issues that arose in her department, but leaving major decisions to the County

Clerk. Id. The district court concluded that there was no evidence that Wood’s position

fell within the second McCloud category because there was no evidence that any

discretionary authority was delegated to her regarding the enforcement of a law or the

carrying out of a policy of political concern. Id.

The difference between Wood and Summe is that Summe was not just the

supervisor of the Independence office, she was the Chief Deputy County Clerk. The

undisputed evidence, supported by Summe’s own testimony, establishes that she was

appointed by Aylor to the position of Chief Deputy primarily to run the cross-training

program – a duty she did not have when she was supervising the Independence office.

As Chief Deputy, Summe spent the majority of her time in Covington working on the

cross-training program, although she spoke daily to Linda Trenkamp who oversaw the

Independence office in her absence. There is some evidence that cross-training was an

idea that ruminated in the Clerk’s office prior to Summe’s appointment, and it is

undisputed that Aylor had the final authority on Summe’s recommendations. However,

the evidence shows that Summe moved the idea from concept to action, and that she

designed and implemented the program. Thus, we reject Summe’s argument that she

was nothing more than a supervisor with a glorified title whose duties did not change

after she was appointed Chief Deputy, and that she should be treated similarly to Donna

Wood.

Summe argues that her position as Chief Deputy cannot be classified as a

McCloud category-two position because the position of County Clerk is not a category-

one position. We disagree. The position of County Clerk is established by the Kentucky

Constitution. It is an elected position with a term of four years. Pursuant to the

Kentucky Revised Statutes, County Clerks are responsible for issuing motor vehicle,

marriage and vending licenses, registering voters and performing other election-related

duties, storing various legal and county records, and preparing county tax bills. Under

McCloud, a category-one position is a position specifically named in federal, state,

No. 09-5794 Summe v. Kenton County Clerk’s Office, et al. Page 13

county or municipal law to which discretionary authority with respect to enforcement

of that law is granted. 97 F.3d at 1557. County Clerks are charged with enforcing the

law regarding the issuance of licenses, the registration of voters and the running of

elections, and the storage and maintenance of legal and governmental records. County

Clerks presumably have discretionary authority regarding how to facilitate these

numerous and varied duties. We, thus, conclude that the position of County Clerk is a

McCloud category-one position.

Summe argues that the position of County Clerk is not a category-one position

based on the Fifth Circuit’s decision in Stegmaier v. Trammell, 597 F.2d 1027, 1035-38

(5th Cir. 1979). The Stegmaier decision, which is not binding on us, addressed the

position of Cherokee County, Alabama, Circuit Court Clerk. The Fifth Circuit’s ruling

that the Circuit Court Clerk did not occupy a category-one position was based on

applicable Alabama constitutional and statutory provisions reflecting that policymaking

decisions regarding the operation of Alabama’s unified judicial system must be made by

the Administrative Director of the courts, and not the Circuit Court Clerk. The State of

Kentucky has its own unified court system established by Kentucky’s constitution, and

County Clerks perform no services for Kentucky’s courts. Furthermore, there is no

comparable Kentucky statute placing discretionary authority for running the County

Clerk’s office in another administrator. Thus, Stegmaier does not form a basis for this

court to conclude that the Kenton County Clerk is not a McCloud category-one position.

Summe argues that her position as Chief Deputy cannot be a McCloud category-

two position because Aylor did not delegate any of his authority relative to the carrying

out of a policy of political concern. This argument ignores the disjunctive language in

McCloud that also holds that a position falls within the second category if a category-one

employee delegates his available discretionary authority relative to the enforcement of

the law to the position in question.

In any event, we find that the design and implementation of the cross-training

program involved the carrying out of a policy of political concern. The goal of the

program was to improve customer service, foster employee growth and satisfaction and,

No. 09-5794 Summe v. Kenton County Clerk’s Office, et al. Page 14

in the end, make voters happy. Even Eldridge testified that streamlining the office’s

operations and providing better customer service was fundamental to his campaign. He

testified that he intended to accomplish this goal by closing the Automobile Renewals

office, moving the employees into the Titles and Transfers office – in other words, by

cross-training employees to perform all duties. Aylor delegated to Summe nearly all

authority in running the program. Indeed, Summe testified that if she had been elected,

she would have run the program as County Clerk.

For all these reasons, we AFFIRM the district court’s ruling that the position of

Chief Deputy County Clerk in Kenton County, Kentucky falls within the second

McCloud category and is, thus, lawfully subject to patronage dismissal.

2. McCloud Category-Three Position

The district court also concluded that the position of Chief Deputy County Clerk

is an inherently confidential one. McCloud category-three employees are confidential

advisors who spend a significant portion of their time on the job advising category-one

employees on how to exercise their statutory authority with respect to enforcement of

laws or the carrying out of some policy of political concern. Or they may be other

employees who control the lines of communications to category-one employees.

McCloud, 97 F.3d at 1557.

The undisputed evidence shows that the position of Chief Deputy in Kenton

County is an ad hoc position. That is, the position is one that exists entirely at the whim

of the County Clerk who defines the Chief Deputy’s job duties. Donna Wood, who

worked in the County Clerk’s office for 26 years, testified that Aylor’s predecessor,

Albert Wood, appointed two Chief Deputies (Bill Bauereis followed by Ruth Eger)

during his administration. Wood testified that Aylor retained Eger as his Chief Deputy

when elected, but she left shortly thereafter to be a stay-at-home mother. The evidence

shows that Aylor did not appoint anyone to replace Eger until years later when he

appointed Summe to the position. Summe testified that, if she won the election, she did

not plan to appoint a Chief Deputy. And Eldridge did not appoint a Chief Deputy until

No. 09-5794 Summe v. Kenton County Clerk’s Office, et al. Page 15

four months after he entered office. Thus, the evidence shows that the Chief Deputy

serves, if at all, at the behest of the County Clerk.

The evidence also shows that the duties of a Chief Deputy in Kenton County, if

one is appointed, are defined entirely by the County Clerk. Wood testified that Chief

Deputies Baureis and Eger “took care of the hiring, the firing, the lunch hours, the –

[they] took care of the business end of everything.” (R. 32 at 26.) The evidence shows

that Summe was appointed Chief Deputy primarily to create and run the cross-training

program. Summe testified that, if she were elected County Clerk, she would transfer the

cross-training duties to herself, and she acknowledged that “there is no job description

for the position of Chief Deputy County Clerk in the record.” (Appellant’s Br. at 20.)

We are unable to find any case where the position in question is as improvised and ill-

defined as this one. We conclude, on this record, that the position and duties of Chief

Deputy County Clerk in Kenton County are sufficiently indefinite that the County Clerk

can safely redefine those duties without running afoul of the law.

Here, Eldridge testified that he envisioned the position of Chief Deputy as one

occupied by a confidential advisor who could help facilitate his policy, and control the

lines of communication to him. Although Summe points to evidence showing that there

are many things Danny Miles does not do,3 there is absolutely no evidence that he is not

a confidential advisor to Eldridge who controls the lines of communication to him.

Moreover, there is nothing in the record that prevents a Kenton County Clerk from

employing a Chief Deputy in a way that requires confidentiality, and we hesitate to bind

Kenton County Clerks to employ their Chief Deputies in ways that they were employed

in the past. See Williams v. City of River Rouge, 909 F.2d 151, 154-55 (6th Cir. 1990).

Thus, we AFFIRM the district court’s conclusion that the position of Chief Deputy is

also a McCloud category-three position.

3

Summe observes, for example, that:

“[Miles] doesn’t help with tax bills and doesn’t deal with any of the reports that go to

the state. Eldridge has “never discussed with him” whether he has authority to hire or

fire or has any purchasing power. [R. 39 Eldridge depo, pg. 123]”

(Appellant’s Br. at 34.)

No. 09-5794 Summe v. Kenton County Clerk’s Office, et al. Page 16

3. Qualified Immunity

The district court further ruled that Eldridge’s dismissal of Summe was protected

by qualified immunity. Summe correctly points out that Eldridge did not raise the issue

of qualified immunity in either of his briefs below, and the district court raised the issue

sua sponte in its memorandum of opinion.

Qualified immunity protects government officials performing discretionary duties

from “liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known.” Morrison v. Board of Trustees of Green Tp., 583 F.3d 394, 399 (6th Cir. 2009)

(citing Feathers v. Aey, 319 F.3d 843, 847 (6th Cir. 2003), in turn quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Qualified

immunity is an affirmative defense that must be pleaded and proved by the defendant.

Balderaz v. Porter, 578 F.Supp. 1491, (S.D. Ohio 1983) (citing Alexander v. Alexander,

706 F.2d 751, 754 (6th Cir. 1983). The failure to raise qualified immunity results in

waiver of the defense. Narducci v. Moore, 572 F.3d 313 (7th Cir. 2009) (holding that

the failure to raise qualified immunity before the reply brief constituted a waiver of that

defense in summary judgment proceedings); Guzman-Rivera v. Rivera-Cruz, 98 F.3d

664 (1st Cir. 1996) (holding that the failure to raise qualified immunity defense in

defendants’ first two summary judgment motions constituted waiver of that defense in

their third summary judgment motion).

The record below shows that, although Eldridge raised qualified immunity as an

affirmative defense in his answer, he never raised it as a defense in his summary

judgment motion and it was not briefed by the parties. It is thus apparent that Eldridge

was aware of the defense before discovery, had ample time to develop the defense during

discovery, had the opportunity to present the defense on summary judgment and chose,

instead, to address the patronage dismissal claim on the merits. Because Eldridge

waived the qualified immunity defense, we need not decide that issue on appeal.

No. 09-5794 Summe v. Kenton County Clerk’s Office, et al. Page 17

C. Substantive Due Process Claim Against the County

Summe alleges that the County violated her constitutional privacy rights by

releasing her “medical records” to a citizen named David Sizemore, in response to his

open records request, who then disseminated those records to the public. The County

denies that the report it released is a medical record and argues that Summe failed to

establish a constitutional violation. Although the district court opined that the EAP

report was not a medical record, it assumed for purposes of the motion that the report

was a medical record and concluded, nonetheless, that its dissemination by the County

did not violate Summe’s Fourteenth Amendment constitutional privacy rights.

The Supreme Court has identified two types of interests protected by the

substantive due process right to privacy. Lambert v. Hartman, 517 F.3d 433, 439 (6th

Cir. 2008) rehearing and rehearing en banc denied (July 14, 2008). The first is the

interest in making certain kinds of important decisions independently (for example, those

relating to procreation, marriage and contraception). Id. (citing Whalen v. Roe, 429 U.S.

589 (1977)). The second is the interest in avoiding disclosure of personal matters

(otherwise known as the informational-privacy right). Id. (citing Nixon v. Adm’r of

Gen. Servs., 433 U.S. 425, 465 (1977)). The Sixth Circuit has narrowly construed the

informational-privacy right to apply only to those personal rights that can be deemed

fundamental or implicit in the concept of ordered liberty. Id. (citations omitted). As

such, the Sixth Circuit has recognized this right in only two cases: (1) where the release

of personal information could lead to bodily harm, as in Kallstrom v. City of Columbus,

136 F.3d 1055 (6th Cir. 1998), and (2) where the information released was of a sexual,

personal and humiliating nature, as in Bloch v. Ribar, 156 F.3d 673, 683 (6th Cir. 1998).

The Sixth Circuit has determined that, only after a fundamental right is identified should

the court proceed to the next step of the analysis, i.e., balancing the government’s

interest in disseminating the information against the individual’s interest in keeping the

information private. Lambert, 517 F.3d at 440 (citation omitted).

In Kallstrom, the plaintiffs were undercover police officers who were actively

involved in a drug-conspiracy investigation of a notoriously violent gang and who

No. 09-5794 Summe v. Kenton County Clerk’s Office, et al. Page 18

testified against a number of the gang’s members. During the trial, the city released the

officers’ records to defense counsel. The records contained the names and addresses of

the officers, their immediate family members, and their personal references. The

Kallstrom court concluded that the officers’ privacy interests were of a constitutional

dimension because they implicated a fundamental interest in preserving their lives, the

lives of their family members, their personal security and their bodily integrity.

In Bloch, the Sixth Circuit determined that the plaintiff, a rape victim, established

an informational-privacy right had been violated when a sheriff held a press conference

during which he released highly personal and extremely humiliating details of the rape,

some of which were so embarrassing the plaintiff had not even told her husband. The

court found that the sheriff’s publication of the details implicated the plaintiff’s right to

be free from governmental intrusion into matters touching on sexuality and family life.

The Kallstrom and Bloch courts found that the dissemination in those cases stripped

away the plaintiffs’ very essence of personhood.

Here, the district court found that Summe failed to show facts sufficient to

establish that the release of the EAP report implicated a Fourteenth Amendment

informational-privacy right that rose to the level of Bloch or Kallstrom. In reaching this

conclusion, the court also observed that Summe’s individual privacy rights were further

diminished since she was running for public office – an activity that necessarily limits

one’s privacy expectations.

We agree. The release of the EAP report by the County does not rise to the

conscience-shocking level of conduct established in Kallstrom, where the plaintiffs’

lives were jeopardized by the government, or Bloch, where the government intruded into

matters touching on the plaintiff’s sexuality and family life. Accordingly, we AFFIRM.

D. First Amendment Retaliation Claim Against the County

Summe also argues that the County retaliated against her for exercising her First

Amendment right to run for office by releasing the EAP report. Our review of the

complaint, however, shows that Summe did not assert a First Amendment retaliation

No. 09-5794 Summe v. Kenton County Clerk’s Office, et al. Page 19

claim against the County based on dissemination of this report. In order to establish a

First Amendment retaliation claim, a plaintiff must show that: 1) she engaged in

protected conduct; 2) an adverse action was taken against her; and 3) the adverse action

was motivated, at least in part, by the protected conduct. Harbin-Bey v. Rutter, 420 F.3d

571, 579 (6th Cir. 2005).

Count I, the only count alleging a constitutional violation asserts, with respect

to dissemination of the EAP report:

52. Summe has a legitimate expectation of privacy in her medical

records.

53. The Fiscal Court’s disclosure of Plaintiff’s medical records did

not serve a compelling governmental interest and was done to

assist Eldridge in his campaign.

54. The Fiscal Court could have achieved its objectives in a less

intrusive manner.

55. The disclosure violated Plaintiff’s constitutional privacy rights.

(R. 1 ¶¶ 52-55.) These allegations only assert a claim for violation of Summe’s

Fourteenth Amendment substantive due process privacy rights, not a First Amendment

retaliation claim. Summe raised the First Amendment retaliation claim for the first time

in her opposition to the summary judgment motion. The County, which did not address

the unasserted claim in its summary judgment motion, pointed this out to the district

court in its reply brief. Nonetheless, the district court addressed Summe’s argument and

denied the claim on the merits. We find that the retaliation claim was not properly

presented to the district court and that the district court should not have considered it.

Thus, we decline to entertain it on appeal. Scottsdale Ins. Co. v. Flowers, 513 F.3d 546,

552-54 (6th Cir. 2008); Chandler v. Johnson, 813 F.2d 773, 777 (6th Cir. 1987).

IV. CONCLUSION

Based on the foregoing, we AFFIRM the district court’s conclusion that the

position of Chief Deputy County Clerk in Kenton County, Kentucky, falls within the

second and third McCloud exceptions to unlawful patronage dismissal, and the district

No. 09-5794 Summe v. Kenton County Clerk’s Office, et al. Page 20

court’s dismissal of Summe’s substantive due process claim. For reasons stated, we

decline to rule on the issue of qualified immunity and Summe’s First Amendment

retaliation claim.