Gary Thompson v. Andy Shock

United States Court of Appeals

For the Eighth Circuit

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No. 16-1643

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Gary Thompson; Dalton Elliott; Gary Scott Manning; Alicia Hardy

lllllllllllllllllllll Plaintiffs - Appellants

v.

Andy Shock, Individually and in his Official Capacity as Faulkner County Sheriff

lllllllllllllllllllll Defendant - Appellee

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Appeal from United States District Court

for the Eastern District of Arkansas - Little Rock

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Submitted: December 15, 2016

Filed: March 28, 2017

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Before WOLLMAN and SMITH,1 Circuit Judges, and WRIGHT,2 District Judge.

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SMITH, Circuit Judge.

1

The Honorable Lavenski R. Smith became Chief Judge of the United States

Court of Appeals for the Eighth Circuit on March 11, 2017.

2

The Honorable Wilhelmina M. Wright, United States District Judge for the

District of Minnesota, sitting by designation.

Gary Thompson, a former transport deputy in Faulkner County, Arkansas, sued

Sheriff Andy Shock, in his individual and official capacities, for unlawful

employment termination under state and federal law. He brought his federal claim

pursuant to 42 U.S.C. § 1983 for the deprivation of his First Amendment right of free

association. The district court dismissed the federal claim, granting Sheriff Shock

qualified immunity in his individual capacity and holding that Sheriff Shock in his

official capacity was not a policymaker for purposes of Faulkner County’s liability.

The district court then declined supplemental jurisdiction over the remaining state-

law claims. Thompson appeals, seeking reinstatement of his claims against Sheriff

Shock. Upon review, we affirm the district court’s dismissal of Thompson’s claim

against Sheriff Shock in his official capacity, but we vacate the finding of qualified

immunity for Sheriff Shock in his individual capacity and remand that issue for

analysis under a different line of precedent.

I. Background

In 2012, while employed as a deputy in the Faulkner County Sheriff’s Office,

Andy Shock ran for Sheriff. One of Shock’s coworkers in the office, Gary Thompson,

did not support his candidacy. Thompson publicly endorsed Shock’s main rival,

Tommy Earnhart. While off-duty, Thompson campaigned for Earnhart by attending

fundraisers, placing campaign signs in his yard, and wearing a campaign T-shirt. This

campaigning did not interfere with Thompson’s work activities, nor does the record

reflect that Thompson made any public statements regarding the Sheriff’s Office or

other issues of public concern. After Shock discovered that Thompson supported his

rival, the two met privately; Thompson assured Shock that he supported Earnhart as

a personal friend and that he would be willing to work for Shock if he won the

election. Thompson alleges that Shock told others that, as Sheriff, Shock would

terminate current office employees that did not support his candidacy.

In November 2012, after Shock won the election, Thompson received a letter

from newly elected Sheriff Shock notifying him of his “non-selection” for

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employment in January 2013. The letter outlined a grievance procedure providing

Thompson a predeprivation hearing to contest his termination. Thompson requested

the hearing, and during the proceedings, Sheriff Shock testified that he chose not to

select Thompson because of his “lack of good work ethic.” The record reflects no

discipline procedures or negative performance evaluations regarding Thompson

before he received this letter of non-selection.

Thompson and three other non-selected employees brought this suit in 2013,

alleging violations of their rights under the Arkansas Political Freedom Act, the

Arkansas Constitution, and the First Amendment of the United States Constitution.

The district court granted summary judgment for Shock in his individual and official

capacities. The district court analyzed the First Amendment claim under the formula

set out in Pickering v. Board of Education, 391 U.S. 563 (1968), and Connick v.

Myers, 461 U.S. 138 (1983). The district court determined that Thompson’s claimed

First Amendment right was not clearly established under the Pickering–Connick test,

granted qualified immunity to Sheriff Shock in his individual capacity, and dismissed

without prejudice the related state-law claims. The district court also dismissed

Thompson’s claims against Shock in his official capacity because Thompson failed

to prove that Sheriff Shock was deliberately indifferent to his constitutional rights.

Thompson moved to alter or amend the judgment, but the district court denied the

motion. The court did, however, revise its reasoning on the official-capacity claim.

The court shifted the basis for its decision to Sheriff Shock’s lack of final

policymaking authority in employment matters. Thompson appeals.

II. Discussion

“We review grants of summary judgment de novo.” Atkinson v. City of

Mountain View, Mo., 709 F.3d 1201, 1207 (8th Cir. 2013). In a § 1983 action, we will

reverse an award of summary judgment in favor of a public official in his individual

capacity only if a reasonable jury could find his actions under the color of state law

“violated ‘a right secured by the Constitution and laws of the United States.’” Id.

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(quoting Cook v. City of Bella Villa, 582 F.3d 840, 848 (8th Cir. 2009)). We will

reverse an award of summary judgment in favor of a public official acting in his

official capacity only if a reasonable jury could find that the constitutional violation

was committed “pursuant to official municipal policy of some nature.” Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Thompson appeals the grant of

summary judgment to Sheriff Shock in both capacities.

A. Qualified Immunity

Qualified immunity shields a government official acting in his individual

capacity from liability “unless his conduct violates ‘clearly established statutory or

constitutional rights of which a reasonable person would have known.’” New v.

Denver, 787 F.3d 895, 899 (8th Cir. 2015) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). “Qualified immunity balances two important interests—the need

to hold public officials accountable when they exercise power irresponsibly and the

need to shield officials from harassment, distraction, and liability when they perform

their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Federal

courts conduct a two-step inquiry into the application of qualified immunity:

“(1) whether the facts alleged demonstrate a violation of the employee’s

constitutional right and (2) whether that right was clearly established at the time of

the employee’s firing.” Anzaldua v. Ne. Ambulance & Fire Prot. Dist., 793 F.3d 822,

832 (8th Cir. 2015). Qualified immunity protects the reasonable decisions of

government actors except in cases of plain incompetence or knowing violation of the

law. New, 787 F.3d at 900.

“[A] public employee does not relinquish First Amendment rights to comment

on matters of public interest by virtue of government employment.” Connick, 461

U.S. at 140. Nevertheless, “the State’s interests as an employer in regulating the

speech of its employees ‘differ significantly from those it possesses in connection

with regulation of the speech of the citizenry in general.’” Id. (quoting Pickering, 391

U.S. at 568). “A State may not condition public employment on an employee’s

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exercise of his or her First Amendment rights.” O’Hare Truck Serv., Inc. v. City of

Northlake, 518 U.S. 712, 717 (1996). “Absent some reasonably appropriate

requirement, government may not make public employment subject to the express

condition of political beliefs or prescribed expression.” Id. “With a few exceptions,

the Constitution prohibits a government employer from discharging or demoting an

employee because the employee supports a particular political candidate.” Heffernan

v. City of Paterson, 136 S. Ct. 1412, 1417 (2016).

The Supreme Court has developed two lines of cases that assess how to balance

the First Amendment rights of government employees with the need of government

employers to operate efficiently. See Hinshaw v. Smith, 436 F.3d 997, 1005–06 (8th

Cir. 2006). For “overt expressive conduct,” federal courts apply the balancing test as

found in the line of cases following Pickering and Connick. Id. at 1005. The typical

Pickering–Connick case involves a government employee causing workplace

disruption by speaking as a citizen on a matter of public concern, followed by

government action adversely affecting the employee’s job. See Anzaldua, 793 F.3d

at 835–36 (analyzing under Pickering–Connick the termination of a Fire District

employee after the employee emailed a local reporter about department conditions).

This test includes various interrelated factors:

(1) the need for harmony in the work place; (2) whether the

government’s responsibilities require a close working relationship; (3)

the time, manner, and place of the speech; (4) the context in which the

dispute arose; (5) the degree of public interest in the speech; and (6)

whether the speech impeded the employee’s ability to perform his or her

duties.

Id. at 835. The Pickering–Connick test provides flexible weighing of the case-specific

facts to balance the interests of the government with those of the employee.

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For “pure patronage dismissals,” federal courts apply the narrow-justification

test outlined in Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S.

507 (1980). Hinshaw, 436 F.3d at 1005. The typical Elrod–Branti case involves the

dismissal of an employee because of his or her political affiliations or support for

certain candidates. See DePriest v. Milligan, 823 F.3d 1179, 1184 (8th Cir. 2016)

(analyzing under Elrod–Branti the dismissal of the Chief Deputy after the election of

the new Circuit Clerk). “[A] dismissal solely on account of an employee’s political

affiliation violates the First Amendment unless the hiring authority can demonstrate

that party affiliation is an appropriate requirement for the effective performance of

the public office involved.” Id. (internal quotation marks omitted) (quoting Langley

v. Hot Spring Cty., 393 F.3d 814, 817 (8th Cir. 2005)). Under Elrod–Branti, the court

cabins its inquiry to the political-affiliation requirement itself, without the need to do

the Pickering–Connick balancing analysis. O’Hare Truck Serv., Inc., 518 U.S. at 719;

Hinshaw, 436 F.3d at 1005 (“We have recognized that in cases like Elrod and Branti

involving pure patronage dismissals, the individual and government interests are

essentially fixed, so that there is no need to perform a Pickering balance.”).

In addition, many cases present an “intermixed” scenario in which a

policymaking employee receives an adverse employment action based on “specific

instances of the employee’s speech or expression.” O’Hare Truck Serv., Inc., 518

U.S. at 719. In Hinshaw, we applied the Pickering–Connick test to the case of an

executive director of a state agency who alleged termination in violation of her First

Amendment rights. 436 F.3d at 1006–07. Hinshaw, a policymaking employee, spoke

out against the policies promulgated by the agency’s Board of Trustees, and she was

later disciplined. Id. at 1007. We stated that despite Hinshaw’s First Amendment

rights as a private citizen, her position as a policymaking employee “did not give her

carte blanche to ignore her employer’s directives and miscommunicate the Board’s

views.” Id. We determined that the factors in the Board’s favor “outweigh[ed]

whatever interest Hinshaw may have had in communicating her own personal views,”

noting that the Board had a “legitimate expectation that its executive director [would]

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not undermine the Board’s efforts.” Id. Thus, “where speech is intermixed with a

political affiliation requirement, Pickering balancing is appropriate.” Id. at 1006.

To summarize, if an employee is discharged because of his or her expressive

conduct, we apply the Pickering–Connick test. Id. at 1005. If an employee is

discharged because of his or her political affiliation, we apply the Elrod–Branti test.

Id. And when a political-affiliation employee gets discharged for his or her expressive

conduct, we apply Pickering–Connick. Id. at 1006.

In granting qualified immunity to Sheriff Shock, the district court relied on

Nord v. Walsh County, 757 F.3d 734 (8th Cir. 2014). Nord, a deputy sheriff in Walsh

County who ran for sheriff, was terminated the day after he lost the election. Id. at

738. As a candidate, Nord made multiple public statements regarding the current

sheriff’s health, his wife, and his future political aspirations. Id. at 742. He sued the

re-elected sheriff alleging that “he was fired in retaliation for the statements he made

along the campaign trail.” Id. at 738. Because this presented an “intermixed case”

including both public statements and political affiliation, we declined to apply

Elrod–Branti and instead applied Pickering–Connick to determine whether the

employer was justified in terminating Nord. Id. at 744. Thompson’s case presents a

different scenario. Unlike Nord, Thompson made no public statements regarding the

Sheriff’s Office; he simply supported an opposing candidate. “In such cases, the

hiring authority must demonstrate that party affiliation is an appropriate and

reasonable requirement for the effective performance of the public office

involved. . . . This circuit has held that ‘[i]f discharge solely because of party

affiliation is found, this will involve applying the narrow [Elrod–Branti] justification

test . . . .’” Id. (first alteration in original) (quoting Hinshaw, 436 F.3d at 1005).

For Thompson’s case, we choose to follow Heffernan v. City of Paterson—a

recent Supreme Court decision published after the district court filed its judgment—to

determine the best analytical framework. 136 S. Ct. 1412. Heffernan, a city police

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officer, retrieved a campaign sign on behalf of his mother, and the police department

fired him for “overt involvement” in the campaign. Id. at 1416. Using the

Elrod–Branti analysis, the Supreme Court determined that a government employer

could violate an employee’s First Amendment rights even if acting under the

mistaken belief that the employee is affiliated with a certain candidate.3 Id. at 1419.

Thompson, like Heffernan, suffered an adverse employment decision not because of

his overt expressive conduct but because of his affiliation with the “wrong”

candidate. When the constitutional right at issue involves “joining, working for or

contributing to the political party and candidates of [the employee’s] choice,” we

apply the Elrod–Branti test. Rutan v. Republican Party of Ill., 497 U.S. 62, 69 (1990).

Accordingly, because the district court applied a different test, we remand the

question of qualified immunity to the district court for analysis under Elrod–Branti.

See Fink v. Union Cent. Life Ins. Co., 65 F.3d 722, 724 (8th Cir. 1995) (remanding

the issue of excusable neglect to the district court after Supreme Court precedent

altered the analytical framework).

B. Municipality Liability

Under § 1983, a municipality cannot be held liable for the tortious conduct of

an employee, unless the employee acts pursuant to a municipality’s “official policy.”

Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986).

The “official policy” requirement was intended to distinguish acts of the

municipality from acts of employees of the municipality, and thereby

make clear that municipal liability is limited to action for which the

municipality is actually responsible. . . .

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The Supreme Court declined to express views on the possibility that the

plaintiff’s employers terminated him because of a neutral police policy that prohibited

overt campaign involvement. Heffernan, 136 S. Ct. at 1419. This is not at issue in this

case because Arkansas law prohibits the deprivation of a government employee’s

right “to express his or her opinion as a citizen on political subjects.” Ark. Code Ann.

§ 21-1-207.

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[A] municipality may be liable under § 1983 for a single decision by its

properly constituted legislative body—whether or not that body had

taken similar action in the past or intended to do so in the

future—because even a single decision by such a body unquestionably

constitutes an act of official government policy.

Id. at 479–80. To analyze whether a single decision of a government official

constitutes an official policy, we look to state law to determine whether the

government official possesses “final policymaking authority in the area in which the

challenged conduct occurred.” Williams v. Butler, 863 F.2d 1398, 1401 (8th Cir.

1988). “[T]he County Sheriff may have discretion to hire and fire employees without

also being the county official responsible for establishing county employment

policy.” Pembaur, 475 U.S. at 483 n.12. If a county’s employment policy is set by a

different municipal body, “only that body’s decisions would provide a basis for

county liability.” Id. To determine whether a government official serves as the final

policymaker, we consult two sources: “(1) ‘state and local positive law’ and (2) state

and local ‘“custom or usage” having the force of law.’” Atkinson, 709 F.3d at 1215

(quoting Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). Because

Thompson complains only of a single action and not the customs of Faulkner County,

we will analyze only the policymaking authority granted under positive law.

Thompson argues that as a matter of positive Arkansas law, Sheriff Shock

possessed the final policymaking authority in matters of employment for the Sheriff’s

Office. He relies on the Arkansas Constitution and the Arkansas Code, which

generically give the county judge power to hire employees “except those persons

employed by other elected officials of the county.” Ark. Const. amend. 55, § 3; Ark.

Code. Ann. § 14-14-1101(a)(6). This exception, Thompson argues, places final

employment policymaking authority in elected officials for their respective offices.

See Ark. Code Ann. § 14-14-1102(b)(5)(B)(ii)(b) (“The jurisdiction to purchase the

labor of an individual for salary or wages employed by other elected officials of the

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county shall be vested in each respective elected official.”). Thompson’s argument,

however, ignores the statutory power of the quorum court to review employment

decisions of county employers:

[A] quorum court may exercise any legislative authority with regard to

employee policy and practices of a general nature, including, but not

limited to, establishment of general vacation and sick leave policies,

general office hour policies, general policies with reference to nepotism,

or general policies to be applicable in the hiring of county employees.

Legislation promulgated by a quorum court dealing with matters of

employee policy and practices shall be applicable only to employees of

the county and shall not apply to the elected county officers of the

county. Legislation applying to employee policy practices shall be only

of a general nature and shall be uniform in application to all employees

of the county.

Ark. Code Ann. § 14-14-805(2). By Arkansas statute, the quorum court may be

invested with the ability to exercise final authority regarding “general policies to be

applicable in the hiring of county employees.” Id. As the district court noted and as

the facts show, Faulkner County provided a grievance procedure through the quorum

court to address unconstitutional employment decisions made by the County Sheriff.

In fact, Thompson used this procedure to have his employment decision reviewed.

Faulkner County’s retention of “the right of review” through its grievance procedure

is inconsistent with “an absolute delegation of authority” by the County to its Sheriff.

See Williams, 863 F.2d at 1402. An incomplete delegation of authority “will not result

in municipal liability.” Id.

Thompson also asserts that Sheriff Shock’s position as a final policymaker has

been settled by the Arkansas Supreme Court. He relies on Crawford County v. Jones,

which states: “[I]t is patently unreasonable to hold that a county official, such as the

assessor, when acting in her capacity as an elected official, could not create liability

for the county by her actions.” 232 S.W.3d 433, 440 (Ark. 2006). Crawford County,

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however, does not support Thompson’s assertion. First, the Crawford County opinion

addresses a state-law breach-of-contract action rather than a federal § 1983 action. Id.

Second, the facts of Crawford County actually support the absence of final

policymaking authority for the County Sheriff. The Crawford County Quorum Court,

sitting as a grievance committee, ordered the plaintiff to be reinstated after a wrongful

discharge, but the county assessor refused to do so. Id. at 435–37. In reviewing a jury

verdict in favor of the plaintiff, the Arkansas Supreme Court found substantial

evidence to support a violation of “the policy adopted by the County.” Id. at 439. The

court then imputed the violation of the assessor to the county, not because the

assessor acted as a final policymaker, but because the assessor acted as an agent of

the county’s final policymaker. Id. at 439–40. The Arkansas Supreme Court did not

find that the county assessor was the final policymaker for employment purposes, id.

at 440, and similarly, we do not hold Sheriff Shock to be the final policymaker in this

case.

Our review of Arkansas law and the policies promulgated by Faulkner County

reveal that Sheriff Shock did not act as a final policymaker in the employment

decisions of the Faulkner County Sheriff’s Office because employment decisions

made by Sheriff Shock were subject to review by the quorum court. We therefore

affirm the district court’s grant of summary judgment to Sheriff Shock in his official

capacity.

III. Conclusion

We vacate the district court’s grant of summary judgment in favor of Sheriff

Shock in his individual capacity and remand the issue of qualified immunity to be

addressed applying the analysis in the Elrod–Branti line of cases. We affirm the

district court’s grant of summary judgment in favor of Sheriff Shock in his official

capacity.

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