Sowards v. Loudon Cnty TN

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2000 FED App. 0046P (6th Cir.)

File Name: 00a0046p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

;



WANDA SOWARDS,



Plaintiff-Appellant,





No. 98-6768

v.



>

LOUDON COUNTY, 





TENNESSEE and TIMOTHY

his official capacity as Sheriff 

GUIDER, individually and in





of Loudon County,

Tennessee, 

Defendants-Appellees. 

1

Appeal from the United States District Court

for the Eastern District of Tennessee at Knoxville.

No. 96-00659—James H. Jarvis, District Judge.

Argued: October 26, 1999

Decided and Filed: February 8, 2000

Before: JONES, MOORE, and GILMAN, Circuit Judges.

1

2 Sowards v. Loudon County, No. 98-6768

Tennessee, et al.

_________________

COUNSEL

ARGUED: Peter Alliman, WHITE, CARSON &

ALLIMAN, Madisonville, Tennessee, for Appellant. Dean B.

Farmer, HODGES, DOUGHTY & CARSON, Knoxville,

Tennessee, for Appellees. ON BRIEF: Peter Alliman,

WHITE, CARSON & ALLIMAN, Madisonville, Tennessee,

for Appellant. Dean B. Farmer, Keith L. Edmiston,

HODGES, DOUGHTY & CARSON, Knoxville, Tennessee,

for Appellees.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. Wanda

Sowards filed suit under 42 U.S.C. § 1983 against Loudon

County and the Sheriff of Loudon County Timothy Guider, in

his individual and official capacities, claiming that she was

terminated from her position as a jailer at the Loudon County

Sheriff’s Department in retaliation for exercising her First

Amendment rights of political and intimate association.

Sowards’s husband, William Sowards, had run unsuccessfully

for sheriff against Guider in early 1994. Guider terminated

Sowards’s employment in July 1995 allegedly because she

missed an outstanding warrant on a person brought into the

jail. The district court granted Loudon County and Guider’s

motion for summary judgment and dismissed the case because

it found no genuine issue of material fact existed to show

Sowards’s constitutionally protected activity substantially

motivated Guider to terminate her employment. Sowards

appeals the dismissal of her case. Loudon County and Guider

respond that even if Sowards’s First Amendment rights were

violated, political affiliation is a proper consideration for the

position of a jailer under the Elrod/Branti exception. In

addition, they claim that Guider is entitled to qualified

immunity in his individual capacity.

No. 98-6768 Sowards v. Loudon County, 3

Tennessee, et al.

We conclude that Sowards has established that she suffered

an adverse action while engaged in constitutionally protected

activity. A genuine issue of material fact exists whether

Guider’s action was substantially motivated by this activity.

Because political considerations are not appropriate for the

position of a jailer, we hold that the Elrod/Branti exception to

the First Amendment rule protecting public employees against

politically-based dismissals does not apply in this case.

Finally, Guider is not entitled to qualified immunity in his

individual capacity. Therefore, we REVERSE and

REMAND for further proceedings in Sowards’s retaliation

suit against Loudon County and Guider.

I. FACTS AND PROCEDURE

Wanda Sowards began working at the Loudon County

Sheriff’s Department (“LCSD”) as a road deputy in 1986 and

then transferred to the position of a jailer in 1989. In early

1994, her husband, William Sowards, announced that he

would be running as a Republican for the position of Sheriff

of Loudon County against incumbent Timothy Guider, also a

Republican. Sowards’s husband lost to Guider in the

Republican primary election in May 1994.

Sowards claims that after her husband announced his

candidacy, her work environment changed significantly. She

asserts that her supervisors ostracized her, disciplined her

more harshly than her co-workers, changed her day shift to a

split shift, and reduced her overtime opportunities. Finally,

on July 19, 1995, she was terminated allegedly because she

had missed an outstanding warrant.

On June 28, 1995, Edward D. Ricker was arrested on a DUI

charge and brought to the LCSD jail. Sowards was working

on that date and was responsible for checking for any

outstanding warrants on persons brought into the facility. She

claims that she did not find an outstanding warrant on Ricker

because she had understood his name to be “Wicker,”

resulting in Ricker later being released without the warrant

4 Sowards v. Loudon County, No. 98-6768 No. 98-6768 Sowards v. Loudon County, 21

Tennessee, et al. Tennessee, et al.

being served. Sowards’s supervisor, Chief Jailer Joe Bridges, had terminated the employment of his deputy sheriffs for

recommended terminating her employment because the political reasons. See Hall v. Tollett, 128 F.3d 418, 429-30

warrant involved a serious burglary charge that had been (6th Cir. 1997). Defendants seem to argue that because the

outstanding for over one year. He did not consider the fact law was unclear as to whether political affiliation was an

that she may have misunderstood the person’s name to be an appropriate consideration for the position of deputy sheriff in

important consideration in his recommendation. After Tennessee, it also was unclear regarding the position of a

receiving Bridges’s recommendation, Guider did not conduct jailer at the LCSD. A deputy sheriff, however, has different

any further investigation. A few days later he agreed to duties than a jailer under Tennessee law. For example, the

terminate Sowards’s employment. deputy sheriffs in Hall were responsible for patrolling the

roads of the county and responding to emergency situations.

Sowards filed a complaint against Loudon County and See id. at 429. Therefore, the fact that the law may have been

Guider, in his individual and official capacities, pursuant to unclear regarding the applicability of the Elrod/Branti

42 U.S.C. § 1983, claiming that she was terminated in exception to the position of deputy sheriff in 1995 is not

retaliation for the exercise of her First Amendment rights of dispositive in this case.

political and intimate association. Loudon County and Guider

filed a motion for summary judgment, arguing that no genuine As discussed in Part II.B supra, however, the position of a

issue of material fact exists regarding Sowards’s retaliation jailer is analogous to the position of a prison guard, and the

claim. They also claimed that political considerations are Supreme Court concluded that political considerations are

appropriate for the position of a jailer under the Elrod/Branti inappropriate for the employment decisions concerning a

exception and that Guider is entitled to qualified immunity in prison guard in 1990. See Rutan v. Republican Party of

his individual capacity. The district court granted Loudon Illinois, 497 U.S. 62, 79 (1990). It was objectively

County and Guider’s motion in part and dismissed Sowards’s unreasonable for Guider to believe that political

claim based on the right of intimate association. The district considerations were appropriate for the position of a jailer in

court denied their motion with respect to Sowards’s claim 1995 in light of the Supreme Court’s 1990 Rutan decision.

based on the right of political association and found Because the law was so clearly established that he could not

insufficient evidence upon which to decide whether political reasonably take political considerations into account when

considerations are appropriate for the position of a jailer and terminating Sowards, Guider is not entitled to qualified

to evaluate the defense of qualified immunity. After more immunity in his individual capacity for Sowards’s political

discovery, Loudon County and Guider filed a second motion association claim.

for summary judgment based on the same arguments.

Sowards filed a response to this motion and a motion to III. CONCLUSION

reconsider the district court’s dismissal of her right of

intimate association claim. The district court granted For the reasons stated above, we REVERSE the district

Sowards’s motion to reconsider her right of intimate court’s grant of summary judgment to defendants and

association claim but then granted Loudon County and REMAND for further proceedings on Sowards’s claim of

Guider’s motion for summary judgment dismissing all of retaliation based on her rights of political and intimate

Sowards’s claims. It reasoned that no rational juror could association under the First Amendment.

find Guider’s decision to terminate Sowards was substantially

motivated by the exercise of her First Amendment rights of

20 Sowards v. Loudon County, No. 98-6768 No. 98-6768 Sowards v. Loudon County, 5

Tennessee, et al. Tennessee, et al.

have noted that a Supreme Court or Sixth Circuit decision political and intimate association. Sowards filed a timely

specifically holding that a certain position falls under this notice of appeal of the district court’s decision.

exception is not necessary for the law to be clearly established

under the doctrine of qualified immunity. See McCloud v. II. ANALYSIS

Testa, 97 F.3d 1536, 1556 (6th Cir. 1996). Neither the

Supreme Court nor the Sixth Circuit has evaluated whether a A. Sowards’s First Amendment Retaliation Claim

jailer at the LCSD, or a jailer possessing the same duties as

those mandated by Tennessee law, falls under the A district court’s decision to grant summary judgment is

Elrod/Branti exception.4 reviewed de novo. See General Elec. Co. v. G. Siempelkamp

GmbH & Co., 29 F.3d 1095, 1097 (6th Cir. 1994). Summary

Defendants argue that our decision in Cagle v. Gilley, 957 judgment is proper only if there is no genuine issue as to any

F.2d 1347 (6th Cir. 1992), shows the “murkiness” of the law material fact and the moving party is entitled to a judgment as

with respect to positions in a county sheriff’s department. In a matter of law. FED. R. CIV. P. 56(c). We must look beyond

that decision, we concluded that as of 1988, no clearly the pleadings and assess the proof to determine whether there

established law prohibited the consideration of political is a genuine need for trial. See Matsushita Elec. Indus. Co. v.

affiliation for the position of deputy sheriff in Tennessee. See Zenith Radio Corp., 475 U.S. 574, 587 (1986). The proper

Cagle, 957 F.2d at 1349 (pointing out a circuit split regarding inquiry is whether the evidence is such that a reasonable jury

whether this position is subject to the Elrod/Branti could return a verdict for the plaintiff. See Anderson v.

exception).5 In another decision, we determined that the state Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Street v.

of the law regarding patronage dismissals of deputy sheriffs J.C. Bradford & Co., 886 F.2d 1472, 1476-80 (6th Cir. 1989).

in Tennessee had not been clarified as of September 1, 1994, We view inferences to be drawn from the underlying facts in

and therefore we granted qualified immunity to a sheriff who the light most favorable to the nonmoving party. See General

Elec. Co., 29 F.3d at 1097-98.

Sowards claims that she was terminated from her position

4 as a jailer at the LCSD for exercising her First Amendment

We emphasize again that the actual duties of a particular position,

and not its title, govern the Elrod/Branti analysis. See Hall v. Tollett, 128 rights of political and intimate association in violation of 42

F.3d 418, 423 (6th Cir. 1997). Because the duties of a jailer may vary U.S.C. § 1983. In order to establish retaliation for engaging

from state to state, it is important to examine the applicable state and local in constitutionally protected activity, a plaintiff must prove

law when deciding whether political considerations may be used in

employment decisions concerning a jailer. See id. at 427-29 (engaging in the following elements: “(1) the plaintiff engaged in

a case-by-case analysis of state and local law to determine whether the protected conduct; (2) an adverse action was taken against the

position of deputy sheriff falls within the Elrod/Branti exception). plaintiff that would deter a person of ordinary firmness from

Therefore, in deciding whether the law was clearly established for the continuing to engage in that conduct; and (3) there is a causal

purpose of qualified immunity, we look for decisions that involve connection between elements one and two – that is, the

positions with the same or similar statutory duties. adverse action was motivated at least in part by the plaintiff’s

5 protected conduct.” Thaddeus-X v. Blatter, 175 F.3d 378, 394

Sowards correctly notes that the Cagle court did not recognize or (6th Cir. 1999) (en banc). In brief, this analysis focuses on

address the Supreme Court’s conclusion in Elrod that political

considerations may not be used for the employment of the position of whether the adverse employment action was motivated in

chief deputy sheriff. See Elrod v. Burns, 427 U.S. 347, 350-51, 372-73, substantial part by the plaintiff’s constitutionally protected

374-75 (1976).

6 Sowards v. Loudon County, No. 98-6768 No. 98-6768 Sowards v. Loudon County, 19

Tennessee, et al. Tennessee, et al.

activity. See Mattox v. City of Forest Park, 183 F.3d 515, 1152, 1154 (6th Cir. 1996). Under the first step, we must

520-21 (6th Cir. 1999). If the plaintiff meets her burden, the examine “whether plaintiff has shown a violation of a

burden then shifts to the defendants to prove by a constitutionally protected right.” Id. “If the answer is yes,

preponderance of the evidence that the employment decision then the second step is to determine whether the right is so

would have been the same absent the protected conduct. See ‘clearly established’ that a ‘reasonable official would

Kreuzer v. Brown, 128 F.3d 359, 363 (6th Cir. 1997), cert. understand that what he is doing violates that right.’” Id.

denied, 118 S. Ct. 1802 (1998); see also Mt. Healthy City Sch. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).1

As discussed in Part II.A supra, Sowards has provided

sufficient evidence from which a reasonable juror could

1

conclude that Guider terminated her because of her

In Whitaker v. Wallace, 170 F.3d 541, 544 (6th Cir. 1999), a panel association with her husband in violation of her First

in this circuit applied the burden shifting analysis used in Title VII Amendment right of intimate association. In Adkins v. Board

employment discrimination cases to a First Amendment retaliation claim. of Education, 982 F.2d 952, 956 (6th Cir. 1993), we

The Supreme Court, however, has expressly held that in a First

Amendment retaliation case, once a plaintiff shows that her determined that a high school secretary’s right of intimate

constitutionally protected conduct was a substantial factor in an adverse association, protecting her from being fired because of her

employment decision, the burden of persuasion shifts to the defendant to relationship with her husband, is a clearly established right in

“show[] by a preponderance of the evidence that it would have reached this circuit. We cited to two Supreme Court decisions,

the same decision . . . even in the absence of the protected conduct.” Mt. establishing the right in 1984 and 1987, and concluded it was

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977);

see also Board of County Comm’rs v. Umbehr, 518 U.S. 668, 675 (1996) objectively reasonable to expect the public official to respect

(Stating that to prevail in a First Amendment retaliation claim, “an that right in 1988. See Adkins, 982 F.2d at 956 (citing Board

employee must prove that the conduct at issue was constitutionally of Directors of Rotary Int’l v. Rotary Club of Duarte, 481

protected, and that it was a substantial or motivating factor in the U.S. 537 (1987); Roberts v. United States Jaycees, 468 U.S.

termination. If the employee discharges that burden, the government can 609 (1984)). Because Sowards’s right of intimate association

escape liability by showing that it would have taken the same action even

in the absence of the protected conduct.”). We have followed this was clearly established by July 19, 1995, it was objectively

analysis in opinions in this circuit. See Barrett v. Harrington, 130 F.3d reasonable for Guider to understand that he was violating that

246, 262 (6th Cir. 1997), cert. denied, 118 S. Ct. 1517 (1998); Ratliff v. right when he terminated her. Therefore, he is not entitled to

Wellington Exempted Village Sch. Bd. of Educ., 820 F.2d 792, 795 (6th a defense of qualified immunity on this claim.

Cir. 1987); see also Kreuzer, 128 F.3d 359, 365 n.1 (6th Cir. 1997)

(Moore, J., dissenting) (concurring in the majority opinion’s statement of With respect to Sowards’s political association claim, a

the law and noting that unlike the employment discrimination cases

brought under Title VII, once a plaintiff establishes sufficient evidence genuine issue of material fact exists as to whether Guider

that the protected conduct was a substantial or motivating factor behind violated this First Amendment right in terminating her

the adverse employment action, the burden of persuasion shifts to the employment. The right of political association with a

defendants to prove that the same decision would have been made in the particular campaign is a clearly established right. See Rutan

absence of the protected conduct), cert. denied, 118 S. Ct. 1802 (1998); v. Republican Party of Illinois, 497 U.S. 62, 69 (1990).

Acevedo-Diaz v. Aponte, 1 F.3d 62, 67 (1st Cir. 1993) (noting that unlike Defendants argue, however, that the law governing which

the burden shifting analysis performed under Title VII cases, in a First

Amendment political retaliation claim, “once the burden of persuasion public positions fall under the Elrod/Branti exception was not

shifts to the defendant-employer, the plaintiff-employee will prevail so clearly established in 1995 for Guider to understand that he

unless the fact finder concludes that the defendant has produced enough was violating Sowards’s right of political association. We

evidence to establish that the plaintiff’s dismissal would have occurred in

18 Sowards v. Loudon County, No. 98-6768 No. 98-6768 Sowards v. Loudon County, 7

Tennessee, et al. Tennessee, et al.

inmates, taking precautions to ensure their safety, and 1. Protected Conduct

arranging communications between inmates and the public.

These duties essentially mirror the duties of a prison guard. To prove the first element of retaliation, Sowards argues

In Rutan v. Republican Party of Illinois, 497 U.S. 62, 79 that she was exercising her rights of both political and

(1990), the Supreme Court determined that political intimate association protected by the First Amendment. The

considerations are not appropriate for employment decisions right of political association is a well established right under

regarding the position of a prison guard. Defendants argue the First Amendment for “‘political belief and association

that LCSD jailers are not like prison guards because they constitute the core of those activities protected by the First

work in a small facility where each individual decision has Amendment.’” Rutan v. Republican Party of Illinois, 497

serious consequences, unlike a large prison facility with U.S. 62, 69 (1990) (quoting Elrod v. Burns, 427 U.S. 347,

several guards on duty and multiple levels of supervision. 356 (1976)). Support of a political candidate falls within the

This argument is not persuasive because, like a jailer, a prison scope of the right of political association. See Elrod, 427

guard’s individual decisions and actions also could have U.S. at 356-57. Therefore, Sowards was exercising her

serious consequences for the inmates and the visiting public. constitutionally protected right of political association by

Therefore, based on the Rutan decision, it is not appropriate supporting her husband’s campaign for the office of Sheriff

to take political considerations into account for the position of Loudon County.

of a jailer at the LCSD, and the Elrod/Branti exception is not

applicable in this case. Sowards also claims that she was retaliated against because

of her exercise of her First Amendment right of intimate

C. Qualified Immunity association with her husband. In Roberts v. United States

Jaycees, 468 U.S. 609, 617-18 (1984), the Supreme Court

Defendants also argue that Guider is entitled to qualified stated that one type of constitutionally protected freedom of

immunity to the extent that he was sued in his individual association is the right “to enter into and maintain certain

capacity. The district court determined that sufficient intimate human relationships [which] must be secured against

evidence did not exist upon which to make a decision on this undue intrusion by the State because of the role of such

defense. If a plaintiff states a claim under 42 U.S.C. § 1983, relationships in safeguarding the individual freedom that is

then this court reviews de novo a district court’s decision central to our constitutional scheme.” The Supreme Court

regarding qualified immunity. See Hall v. Tollett, 128 F.3d reasoned that the formation and preservation of certain types

418, 422 (6th Cir. 1997). of “highly personal relationships” is necessary to secure

individual liberty and suggested that marriage is such a

The doctrine of qualified immunity provides that relationship that must be protected from unwarranted state

“government officials performing discretionary functions[] interference. See id. at 618-19. Although the Supreme Court

generally are shielded 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818 any event for nondiscriminatory reasons”). When a later decision from

this court conflicts with its prior decisions, the earlier cases control. See

(1982). We have adopted a two-step test for determining Brentwood Academy v. Tennessee Secondary Sch. Athletic Ass’n, 180

whether a government official is entitled to qualified F.3d 758, 765 (6th Cir. 1999). Therefore, the Supreme Court’s Mt.

immunity. See Brennan v. Township of Northville, 78 F.3d Healthy analysis, as applied by this circuit in Barrett and Ratliff, inter

alia, governs First Amendment retaliation claims in this circuit.

8 Sowards v. Loudon County, No. 98-6768 No. 98-6768 Sowards v. Loudon County, 17

Tennessee, et al. Tennessee, et al.

did not explain whether this right stems from the freedom of Cir. 1991) (holding that mayor’s secretary had access to

association under the First Amendment or the fundamental confidential and political material because she controlled the

right to marry under the Due Process Clause of the Fourteenth lines of communication to the mayor)). Both Guider and

Amendment, we have analyzed the right of intimate Bridges stated that Sowards did not have any access to any

association under the First Amendment. See Adkins v. Board confidential or political information. Therefore, category

of Educ., 982 F.2d 952, 955-56 (6th Cir. 1993). three does not apply in this case.

In Adkins, a high school secretary claimed that the Although none of the McCloud categories are applicable,

superintendent of the school board refused to recommend defendants also cite to several cases in other circuits that have

continuing her employment in retaliation for her association held upheld the use of political considerations for positions

with her husband, who was the principal of the high school. allegedly similar to a jailer at the LCSD. The primary case

We concluded that the plaintiff secretary had made a prima they rely on, however, is inapposite. In Jenkins v. Medford,

facie case of a constitutional violation because evidence 119 F.3d 1156, 1164 (4th Cir. 1997), cert. denied, 118 S. Ct.

showed that her freedom to form “‘certain intimate human 881 (1998), the Fourth Circuit held that a sheriff could base

relationships’” was implicated in the superintendent’s his decision to fire or hire deputy sheriffs on political

decision not to recommend rehiring her. See 982 F.2d at 956 considerations. It reasoned that under North Carolina law the

(quoting Roberts, 468 U.S. at 617). We explained, “it is not deputy sheriffs “play a special role in implementing the

necessary that the governmental act require the abandonment sheriff’s policies and goals” because they are sworn to carry

or dissolution of a marriage relationship as the price for out law enforcement on behalf of the sheriff and make

retaining public employment. The right of association is independent decisions which may ultimately affect law

violated if the action constitutes an undue intrusion by the2 enforcement policies. Jenkins, 119 F.3d at 1162. In addition,

state into the marriage relationship.” Id. (quotation omitted). the sheriff relies on the deputies to foster public confidence in

Accordingly, Sowards has the right to associate intimately law enforcement and is civilly liable for their actions. See id.

with her husband, and her marriage relationship is protected at 1162-63. Based on this evidence, the court concluded that

from undue intrusion by the state. Sowards claims that she deputy sheriffs are the “alter ego” of the sheriff in North

lost her job because of her protected marital relationship, and Carolina. See id. at 1164. Defendants argue that, like the

that this constitutes undue intrusion by the state in that deputy sheriffs in Jenkins, jailers at the LCSD in fact establish

relationship. See Adkins, 982 F.2d at 956. policy with the individual decisions they make and the sheriff

is civilly liable for their actions. Although jailers have some

decisionmaking authority with respect to providing for the

needs and safety of the prisoners, they are supervised by and

2

We note that the Adkins decision merges the analysis of whether a must follow the directives of Guider and Bridges. They have

plaintiff was engaged in constitutionally protected conduct with the no role in the policymaking process of the prison. While

analysis of whether an adverse action violated the plaintiff’s constitutional Guider is civilly liable for jailers’ actions, this is not sufficient

rights, which have been separated into two steps in more recent decisions. to characterize them as his “alter-ego.”

See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc);

Mattox v. City of Forest Park, 183 F.3d 515, 520-21 (6th Cir. 1999);

Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998). However, it is clear A jailer’s statutory duties under Tennessee law generally

that under the Adkins decision, the right of intimate association is involve providing for the needs and safety of the jail’s

protected only where the plaintiff alleges an undue interference with a inmates, such as providing food, bedding, and support for the

protected intimate relationship.

16 Sowards v. Loudon County, No. 98-6768 No. 98-6768 Sowards v. Loudon County, 9

Tennessee, et al. Tennessee, et al.

J.A. at 91. Guider admitted that Sowards’s position as a jailer Defendants respond with several arguments. First, they

did not involve any policymaking for the day-to-day operation mistakenly assert that Sowards’s right to marry was not

of the prison facility and that she was not in a confidential violated because she is still married to her husband and that

relationship with him regarding how to run the facility. Nor she does not have a fundamental right to marry a specific

did he believe that political loyalty was required for Sowards person. With respect to the First Amendment’s right of

to carry out her responsibilities. In addition, Bridges stated intimate association, the state action need not cause

that Sowards did not make policy for the jail or the sheriff’s “abandonment or dissolution” of the marriage to constitute an

department and that she would carry out the duties and orders undue intrusion. See Adkins, 982 F.2d at 956. In addition,

that he or the sheriff would give to her. He also agreed that defendants’ citations to cases involving the fundamental right

this position did not require political loyalty to the sheriff. to marry under the Due Process Clause of the Fourteenth

Amendment are not applicable to Sowards’s right of intimate

Loudon County and Guider claim that the position of a association claim under the First Amendment. Defendants

jailer could fall under McCloud category two or three. With also argue that Guider’s actions need only satisfy a rational

respect to category two, they assert that Guider and Bridges basis test. However, it is not necessary to engage in such an

delegated much of their discretionary authority regarding the analysis at the summary judgment stage if the plaintiff alleges

day-to-day operation of the jail to jailers. The position of a that she was terminated on the basis of a protected

jailer does not fall under McCloud category two, however, relationship. See Montgomery v. Carr, 101 F.3d 1117, 1127-

because this category involves delegations of policymaking 28 (6th Cir. 1996). Sowards claims that Guider dismissed her

authority. “Category two also exists to capture those who because of her protected relationship with her husband, which

would otherwise be category one policymakers, except that could constitute an undue interference in that relationship

the federal government, state, county, or municipality has under Adkins. Therefore, we conclude that Sowards has met

chosen for whatever reason not to set out the responsibilities her burden at this juncture of establishing that she was

of such a position in a statute, ordinance, or regulation.” engaged in the protected conduct of intimate association

McCloud, 97 F.3d at 1557 n.31. Both Guider and Bridges under the First Amendment.

admitted that jailers do not participate in any type of

policymaking for the prison and are simply required to follow 2. Adverse Action

directives. Therefore, the position of a jailer does not fall

under McCloud category two. Sowards then must prove that she suffered an adverse

action by Loudon County and Guider that caused her to suffer

In addition, defendants argue that a jailer falls under an injury that would likely chill a person of ordinary firmness

category three because a jailer acts as a conduit for from continuing to engage in her constitutionally protected

communication between prisoners and the sheriff. The conduct. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th

McCloud category three position involves employees who Cir. 1999) (en banc). Sowards was dismissed from her

control the lines of communication to category one or position as a jailer at the LCSD. A dismissal qualifies as an

category two position-holders. See id. at 1557 n.32. This adverse employment action for the purposes of a retaliation

category is concerned with this type of employee’s access to claim. See id. at 396 (pointing to “discharge, demotions,

confidential, political information transmitted to the refusal to hire, nonrenewal of contracts, and failure to

policymaker, which requires political loyalty. See id. (citing promote” as examples of adverse actions in the employment

Faughender v. City of North Olmsted, 927 F.2d 909, 914 (6th context).

10 Sowards v. Loudon County, No. 98-6768 No. 98-6768 Sowards v. Loudon County, 15

Tennessee, et al. Tennessee, et al.

3. Requisite Causal Connection others, and to admit persons having business with the

prisoner. See TENN. CODE ANN. §§ 41-4-104, 41-4-105, 41-

Finally, Sowards has the burden of proving that her 4-106, 41-4-108, 41-4-109, 41-4-111, 41-4-114 (1997).

termination was substantially motivated by the exercise of her

constitutional rights. See Thaddeus-X v. Blatter, 175 F.3d Defendants argue that these statutory duties require

378, 394 (6th Cir. 1999) (en banc). Sowards worked as a discretion in the day-to-day operation of the jail and have

jailer at the LCSD for several years and never had any serious consequences with respect to the safety of the

problems until her husband announced that he was running prisoners and the public. Chief Jailer Bridges stated that “As

for the position of Loudon County Sheriff. She then noticed a jailer, Sowards was required to exercise her discretion and

an abrupt change in her work environment. She asserts that judgment in determining whether the inmates needed medical

her supervisors ostracized her, changed her day shift to a split attention, whether any of the inmates was suicidal, and

shift, disciplined her more harshly than her co-workers, told whether any disruptions were likely to arise between the

her she was being watched by the sheriff’s office, and reduced inmates.” J.A. at 247 (Bridges Aff.). She also was

her overtime opportunities. On July 19, 1995, Guider “responsible for exercising [her] discretion and judgment with

terminated Sowards from her position as a jailer allegedly in regard to the admission of visitors and any special requests or

response to an incident that occurred on June 28, 1995, in requirements by the inmates or their relatives or agents . . . .

which Sowards failed to serve an outstanding warrant for [and also] for dispensing medication, food, necessary living

burglary on a person who had been brought to jail on a DUI supplies, and mail.” J.A. at 247. In addition, she was

charge. In Sowards’s dismissal letter, Guider explained that responsible for “preventing contraband from entering or

he was following Chief Jailer Bridges’s recommendation to exiting the facility and for making sure inmates remain secure

terminate her employment because it was her responsibility to in the facility.” J.A. at 247. Bridges also stated that at certain

check for outstanding warrants and because of the serious times only two jailers are on duty, without any direct

nature of the burglary charge which had been outstanding for supervision at the jail facility, and that he relies on them to

over a year. In his deposition, Guider denied that he took into carry out their duties to avoid any danger to the inmates or the

account the fact that Sowards was married to William visiting public. Defendants argue that the position of a jailer

Sowards when terminating her. However, when asked “[i]f involves especially serious consequences because a jailer

Wanda Sowards had been one of [his] staunchest supporters could violate the civil rights of the prisoners and the visiting

in the last election would [he] have looked into the basis for public, and the sheriff is civilly liable for the acts of a jailer.

Sergeant Bridges’ recommendation of termination rather than Therefore, they argue that a jailer’s actions could have serious

just more or less accepting it,” Guider replied, “I might have.” political and legal implications for the sheriff.

J.A. at 140.

Sowards agrees that her responsibilities “included securing

Sowards has presented sufficient evidence upon which a the inmates located in the Loudon County jail, looking after

reasonable juror could conclude that Guider’s decision to their safety, providing medications and other medical

terminate her employment was substantially motivated by her necessities for their needs.” J.A. at 91. She asserts that her

protected First Amendment associational rights. Guider position did not, however, “involve any managerial

admitted that he might have treated her termination case responsibilities, any policy making or involvement in political

differently if she had been one of his political supporters. or policy decisionmaking. [She] simply followed orders and

Although defendants respond that Guider also asserted that he directives” given by Chief Jailer Bridges and Sheriff Guider.

14 Sowards v. Loudon County, No. 98-6768 No. 98-6768 Sowards v. Loudon County, 11

Tennessee, et al. Tennessee, et al.

named in law, possessing by virtue of the jurisdiction’s did not take Sowards’s association with her husband or his

pattern or practice the same quantum or type of political campaign into account in deciding to terminate her

discretionary authority commonly held by category one employment, Guider made conflicting statements regarding

positions in other jurisdictions; his treatment of Sowards’s case. Thus, a genuine issue of

material fact exists regarding his true motivation for

Category Three: confidential advisors who spend a terminating her employment.

significant portion of their time on the job advising

category one or category two position-holders on how to Moreover, other evidence also supports Sowards’s claim

exercise their statutory or delegated policymaking that Guider’s decision to terminate her was substantially

authority, or other confidential employees who control motivated by her protected conduct. Prior to her termination,

the lines of communications to category one positions, Sowards had never been disciplined for missing a warrant.

category two positions or confidential advisors; Guider admitted that Sowards had been a dependable

employee and had never been involved in any serious

Category Four: positions that are part of a group of disciplinary action. Bridges acknowledged that her job

positions filled by balancing out political party performance over the years was a positive factor on her

representation, or that are filled by balancing out behalf. However, Bridges stated that he decided to

selections made by different governmental agents or recommend termination because the warrant Sowards missed

bodies. had been outstanding for a long time and involved a serious

crime. Even though Sowards explained that she had looked

If a particular position falls into one of these categories, for the wrong name, Bridges stated that she could have looked

then political affiliation is an appropriate consideration for up the records to find the correct name, and he did not treat

that position and a public employee may be dismissed without her mistake more leniently because a misunderstanding was

violating the First Amendment. See Hall, 128 F.3d at 424. A involved. Bridges also admitted that other LCSD officers had

government position is not required, however, to fall neatly missed mittimuses,3 but had never been fired for that

within one of the categories to be entitled to the Elrod-Branti omission despite their obligation to check for both

exception. See Feeney, 164 F.3d at 318. outstanding warrants and mittimuses, which are located in the

same box. Because there is evidence that she was treated

Under Tennessee law, “[t]he sheriff of the county . . . may differently than other officers who had made similar mistakes

appoint a jailer, for whose acts the sheriff is civilly and that she was terminated based on only one mistake,

responsible.” TENN. CODE ANN. § 41-4-101 (1997). Jailers Sowards has provided sufficient evidence that her association

are charged with the following responsibilities: to receive and with her husband substantially motivated Guider to terminate

safely keep convicts on their way to the state or federal her.

penitentiary, to file and keep safe under the sheriff’s direction

the mittimus or process by which a prisoner is committed or

discharged from jail, to determine within their discretion what 3

type of precautions to take for guarding against escape and to Like a warrant, a mittimus is a written order from a court or

prevent the importation of drugs, to provide support, to magistrate “directed to the sheriff or other officer, commanding him to

convey to the prison the person named therein, and to the jailer,

furnish adequate food and bedding, to enforce cleanliness in commanding him to receive and safely keep such person until he shall be

the jails, to convey letters from prisoners to their counsel and delivered by due course of law.” BLACK’S LAW DICTIONARY 1002 (6th

ed. 1990).

12 Sowards v. Loudon County, No. 98-6768 No. 98-6768 Sowards v. Loudon County, 13

Tennessee, et al. Tennessee, et al.

Defendants have not presented sufficient evidence that of a jailer. Whether political affiliation is an appropriate

Guider would have terminated Sowards on the basis of this consideration for a government position is a question of law.

one mistake in the absence of her protected association. They See Mumford v. Basinski, 105 F.3d 264, 271 (6th Cir.), cert.

argue that Guider did not know that Sowards had supported denied, 118 S. Ct. 298 (1997). The “issue on summary

her husband in his political campaign for sheriff and thus judgment is whether Defendants have established that no

could not have made any decisions on this basis. See Hall v. genuine factual issue exists as to whether political affiliation

Tollett, 128 F.3d 418, 426-27 (6th Cir. 1997) (dismissing may appropriately be considered with respect to the position

plaintiffs’ political retaliation claims because of lack of in question.” Feeney v. Shipley, 164 F.3d 311, 314 (6th Cir.

evidence that a newly elected sheriff had any knowledge of 1999) (quotation omitted).

which candidate plaintiffs had actually supported in the

election). Guider claims that Sowards told him she was In Elrod v. Burns, 427 U.S. 347, 367 (1976), the Supreme

planning on supporting his candidacy rather than her Court established the principle that certain public employees

husband’s. Sowards denies making this statement. in confidential and policymaking positions may be dismissed

Furthermore, Guider admitted “[b]ut in my mind, you know, on the basis of their political affiliation without violating the

I felt confident that she would support her husband.” J.A. at First Amendment. The Supreme Court reaffirmed this

146. Unlike the sheriff in Hall, Guider actually spoke with holding in Branti v. Finkel, 445 U.S. 507, 518 (1980), stating

Sowards and “felt confident” that she would support her that “the question is whether the hiring authority can

husband’s campaign. Defendants also argue that Guider demonstrate that party affiliation is an appropriate

could not have known of Sowards’s political affiliation requirement for the effective performance of the public office

because Sowards admitted she was not politically active at involved.” In this analysis, we “must look beyond the mere

work and had not given money to any campaigns. A rational job title and examine the actual duties of the specific

juror could conclude, however, that Guider knew Sowards position.” Hall v. Tollett, 128 F.3d 418, 423 (6th Cir. 1997).

had supported her husband on the basis of Guider’s It is “the inherent duties of the position in question, not the

deposition statement describing his conversation with her and work actually performed by the person who happens to

his conclusion that she would support her husband. occupy the office” that must be analyzed. Williams v. City of

River Rouge, 909 F.2d 151, 154 (6th Cir. 1990). In McCloud

Viewing the evidence in the light most favorable to v. Testa, 97 F.3d 1536, 1557 (6th Cir. 1996), we identified

Sowards, we conclude that a genuine issue of material fact four categories of positions which should fall under the Elrod-

exists whether Sowards’s termination was substantially Branti exception with reasonable certainty:

motivated by her protected associational freedoms.

Therefore, the district court erred in granting defendants’ Category One: positions specifically named in relevant

motion for summary judgment. federal, state, county, or municipal law to which

discretionary authority with respect to the enforcement of

B. Elrod/Branti Exception that law or the carrying out of some other policy of

political concern is granted;

Loudon County and Guider argue that even if Sowards is

able to show that she was fired because of her political Category Two: positions to which a significant portion

association with her husband, political affiliation is an of the total discretionary authority available to category

appropriate consideration for the employment or termination one position-holders has been delegated; or positions not