Teresa Wagner v. Carolyn Jones

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-2588

___________

Teresa R. Wagner, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Carolyn Jones, Dean Iowa college *

of Law (in her official and individual *

capacities), *

Appellee. *

___________

Submitted: June 16, 2011

Filed: December 28, 2011

___________

Before MURPHY and SMITH, Circuit Judges, and SCHREIER,1 District Judge.

___________

SCHREIER, District Judge.

Teresa Wagner appeals the district court’s grant of summary judgment

dismissing her 42 U.S.C. § 1983 suit against Carolyn Jones, who was then the Dean

of the University of Iowa’s College of Law. Wagner alleges that Dean Jones

discriminated against her in violation of her First Amendment rights of political belief

and association when Wagner was not hired to be a full-time Legal Analysis, Writing,

and Research (LAWR) instructor or a part-time adjunct LAWR instructor. The district

1

The Honorable Karen E. Schreier, Chief United States District Judge for the

District of South Dakota, sitting by designation.

court granted summary judgment to Dean Jones on her official capacity and individual

capacity claims. On appeal, Wagner only challenges the grant of summary judgment

to Dean Jones in her individual capacity based on qualified immunity. We reverse the

district court’s grant of summary judgment based on qualified immunity.

A grant of summary judgment on the basis of qualified immunity is reviewed

de novo. Borgman v. Kedley, 646 F.3d 518, 522 (8th Cir. 2011). The evidence is

viewed in the light most favorable to the nonmoving party with all reasonable

inferences being drawn in her favor. Id. Summary judgment is only appropriate if “the

pleadings, the discovery and disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2).2 In the context of a First

Amendment claim, we must “make an independent examination of the whole record”

to assure ourselves that “the judgment does not constitute a forbidden intrusion on the

field of free expression.” Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616, 621

(8th Cir. 2002) (en banc).

I. Background

Wagner, a registered Republican, has actively advocated for socially

conservative causes. Wagner graduated from the University of Iowa College of Law

(University) in 1993. Two years later, Wagner moved to Washington, D.C., where she

worked with the National Right to Life Committee, which opposes abortion and

euthanasia, and the Family Research Council, which advocates for conservative social

views. Wagner also taught Advanced Legal Research, Writing & Analysis at George

Mason University School of Law in Washington, D.C. for two years.

2

While Federal Rule of Civil Procedure 56 changed in 2011, we apply the rule

as it existed at the time the district court granted summary judgment.

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The law school faculty at the University is viewed as being liberal. Only one

out of 50 professors is a registered Republican.

In August of 2006, Wagner returned to the University and worked as a part-time

associate director in the University’s writing center. That same month, the University

posted an advertisement announcing an opening for two full-time LAWR instructors.

The advertisement specifically sought candidates with prior successful teaching

experience. Wagner applied for the LAWR position on October 4, 2006. Wagner

listed on her resume her work with the National Right to Life Committee and the

Family Research Council.

The University’s Faculty Appointments Committee, which reviews applications

and invites candidates for an initial interview with the Committee, reviewed Wagner’s

application. The Committee members were Mark Janis, the Committee chair, Dean

Jones, and four other professors. On October 21, 2006, Janis e-mailed Wagner to

unofficially inform her that her application was well received by the Committee.

On November 7, 2006, the Committee invited Wagner for an initial interview.

During this interview, Professor N. William Hines, a Committee member, asked

Wagner what differences she perceived between writing and analysis. Wagner replied

that she understood the writing center’s focus was on writing and LAWR instructors

taught writing and analysis. On November 17, 2006, Janis e-mailed Wagner and told

her that the Committee “enjoyed meeting with you and we’re very enthusiastic about

your candidacy for a full-time position in the LAWR Program.” From the fifty

applicants, the Committee selected five candidates, including Wagner, for a second,

full-day interview. Three of those candidates, including Wagner, interviewed for the

position.

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In January of 2007, Wagner met with then-Associate Dean John Carlson3 to

discuss her full-day interview, which was scheduled for Wednesday, January 24,

2007. Associate Dean Carlson explained the interview process. Wagner informed

Associate Dean Carlson that she had previously gone through a similar interview

process. Associate Dean Carlson asked where and Wagner told him Ave Maria School

of Law, where she received an offer for a tenure-track law school teaching position.

Associate Dean Carlson suggested to Wagner that she conceal this fact during the

interview process because Ave Maria is viewed as a conservative school.

Wagner also informally met with prior Associate Dean Eric Andersen and asked

him if the faculty would hold her conservative political views against her in the hiring

process. Associate Dean Andersen answered that he did not know. Associate Dean

Andersen spoke with Dean Jones before Wagner’s full-day interview and relayed

Wagner’s concerns that her political beliefs might be a factor in the hiring decision.

Wagner had her full-day interview on January 24, 2007, which included a

presentation or “job talk” to the full faculty, interviews with students and selected

faculty, and a private interview with Dean Jones. During the interview with the

faculty, Professor Randall Bezanson asked Wagner if she struggled in distinguishing

between a document’s writing and its analysis. Wagner responded that she understood

the difference between writing and analysis and that documents can be evaluated for

both their form (writing) and content (analysis). Wagner and Professor Bezanson

elaborated on these distinctions during the interview.

Professor Todd Pettys asked Wagner whether analysis or writing was more

important to the LAWR position. Wagner responded that both were important to the

job. When Professor Pettys later asked Wagner if she had to choose between writing

3

Eric Andersen was Associate Dean for the fall 2006 semester and John

Carlson became Associate Dean for the spring 2007 semester.

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or analysis as to which was more important, Wagner responded that the question was

unfair because both were important, but if she had to choose, she would pick writing.

She further noted that all classes at the University teach legal analysis.

Wagner’s notes from the job talk make two references to legal analysis. First,

her notes state that she planned to use a textbook entitled Legal Writing and Analysis,

which she had previously used at George Mason. Second, Wagner’s notes reflect that

she would ask students to absorb and analyze new information.

Seven faculty members complimented Wagner on her job talk. Professor

Sheldon Kurtz e-mailed at 2:59 p.m. on January 24, 2007, and stated, “Great. Lets

[sic] hire her.” At 4:28 p.m. that same day, Ted Potter, the University’s Reference

Librarian, noted that Wagner was not as insightful as some other candidates but

agreed that she should be hired:

Teresa is enthusiastic about working with law students to help them

become good legal writers. She has teaching and writing experience, and

is familiar with the law school. She made some good comments about

how she would teach LAWR . . . [h]er strategies for LAWR were

practical . . . I feel Teresa is well-qualified for the position and I would

recommend her.

Ellen Jones, a reference librarian and instructor in the writing program, said that both

Wagner and Matt Williamson should be hired. Professors Peggy Smith and Michelle

Falkoff told Wagner at a faculty dinner later that night that her presentation had gone

well. Associate Dean Carlson and Associate Dean Andersen both supported hiring

Wagner.

Student feedback from Wagner’s interview was also positive. The students gave

Wagner the highest possible ratings and ranked her higher than Williamson.

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On January 25, 2007, the faculty discussed the applicants with Dean Jones

present. The faculty voted to recommend that Dean Jones only hire Williamson, even

though Dean Jones had informed the faculty that she could hire two full-time LAWR

instructors. Williamson was an adjunct LAWR instructor, had never practiced law,

had no legal publications, and had no prior successful teaching experience.

Williamson portrayed himself as a liberal to other employees at the Writing Center.

During the January 25 meeting, the faculty did not consider Wagner for an adjunct

position.

On January 26, 2007, Janis informed Wagner via e-mail that the University

would not be hiring her. Wagner learned from Associate Dean Carlson on January 29,

2007, that Professor Bezanson had been the primary, vocal opponent to hiring her. In

his deposition, Professor Bezanson could not recall whether Wagner’s politics were

discussed before the faculty voted, but he remembers some person mentioning that

Wagner was conservative during the meeting. Professor Bezanson testified that

Wagner’s politics were possibly discussed after the faculty voted not to hire Wagner.

Professor Bezanson had clerked for Justice Blackmun during the time Roe v. Wade

was written, has written tributes to Justice Blackmun and his abortion jurisprudence,

and has published legal articles advocating a pro-choice viewpoint on abortion. In

contrast, Wagner’s legal career has focused, in part, on protesting abortion and the

cases that established a constitutional right to abortion.

On January 26, 2007, at 4:55 p.m., Associate Dean Carlson sent Dean Jones an

e-mail stating that Wagner had expressed an interest in the summer LAWR program.

Associate Dean Carlson questioned whether Wagner’s politics had played a role in the

faculty’s hiring decision and whether her politics would play a role in future hiring

decisions:

I don’t know whether you have yet spoken to Teresa about the outcome

of the faculty meeting. If not, there is something you should

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know–yesterday I received an email from Teresa (which I only just read)

in which she indicated a willingness to teach the LAWR program in the

summer. I don’t know where Matt Williamson stands on this (he has not

replied to my email inviting him to speak with me about summer

teaching), and it may emerge that we would like to use Teresa during the

summer. The problem is that I don’t understand the significance of the

faculty’s unwillingness to vote on approving Teresa as an Adjunct. It

seemed that there might be an undercurrent of opposition even to that.

Frankly, one thing that worries me is that some people may be opposed

to Teresa serving in any role in part at least because they so despise her

politics (and especially her activism about it). I hate to think that is the

case, and I don’t actually think that, but I’m worried that I may be

missing something.

In any event, I think that we need to move fairly soon on this if we

expect to have Teresa available as an adjunct either this summer or next

fall. I believe that she may begin looking for more permanent and

substantial work outside the College of Law after she learns that she will

not receive an LAWR position.

At 5:14 p.m. that same day, Janis informed Wagner via an e-mail that the

University would only be hiring one full-time LAWR instructor and that Wagner had

not been selected. In that e-mail, Janis asked Wagner if she would be willing to work

as an adjunct LAWR instructor because the law school would be filling the second

LAWR opening with adjunct appointments:

During the meeting, a number of faculty expressed the hope that you

might be willing to be considered for a possible adjunct position. Dean

Jones has asked me to follow up with you to inquire whether, indeed,

that would be something that might be of interest to you. If it is of

potential interest (and I hope it is!), please let me know, so that I can

inform the committee to keep you under consideration.

-7-

On February 25, 2007, the University provided Wagner with a “Hiring

Justification Summary” for the faculty’s recommendation to hire Williamson. The

summary stated that Wagner’s interview was less successful than Williamson’s

interview possibly because the faculty perceived Wagner to be less familiar with the

analysis component of the University’s LAWR program. The faculty again

encouraged Wagner to apply for an adjunct position: “It was observed that Ms.

Wagner might benefit from an opportunity to teach as an Adjunct in the College’s

program so that she may gain experience in (and assess her interest in) that important

[analysis] component of the program.”

Wagner did pursue an adjunct position. On February 27, 2007, Janis sent an e-

mail to the Committee stating that Wagner had expressed interest in the adjunct

position and that he wanted to forward her name to the faculty for consideration at the

next faculty meeting. Janis received unanimous support from the Committee members

who responded to his e-mail. Wagner’s name was forwarded to the faculty for

consideration. Wagner did not receive an interview for the adjunct LAWR position.

On March 22, 2007, the faculty voted not to hire Wagner as a part-time adjunct

LAWR instructor and provided no explanation for their decision. Associate Dean

Carlson informed Wagner on March 23, 2007, that she had been rejected as an adjunct

instructor and that Professor Bezanson had been the primary opponent to her

appointment. Associate Dean Carlson also told Wagner that a minority of faculty

members can block a vote, and he suggested that she not apply again for an LAWR

position.

Instead of hiring Wagner and pursuant to the faculty’s recommendations, Dean

Jones hired Steve Moeller and Dawn Anderson as part-time adjuncts. Both had served

as adjunct instructors during the fall 2006 semester. Neither Moeller nor Dawn

Anderson had had prior law school teaching experience. In fact, Moeller, who was

Professor Bezanson’s research assistant, had just graduated from law school. Because

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they both had received low student evaluation scores for the fall 2006 semester–in the

low twos on a scale of one to five–neither had been considered qualified for the full-

time position.

In December of 2008, Wagner had a discussion with Professor David Baldus.

Wagner worked with Baldus and assisted him in editing his legal publications. Baldus

told Wagner that he was surprised she had not been hired as an adjunct because

adjunct candidates usually come recommended to the faculty from the Committee. He

had never heard of the faculty rejecting a candidate who had been recommended by

the Committee.

Wagner applied, and was rejected, four additional times for an adjunct position:

January 2007, March 2007, June 2008, and January 2009. The University did not

grant Wagner an interview for any of the adjunct positions.

Wagner brought a § 1983 suit against Dean Jones in her individual and official

capacities in January of 2009. The district court granted summary judgment in favor

of Dean Jones. The only issue on appeal is whether Dean Jones, in her individual

capacity, is entitled to qualified immunity on Wagner’s First Amendment

discrimination claim.

II. Discussion

Section 1983 provides a civil cause of action against any person who, under

color of state law, causes a deprivation of the rights, privileges, or immunities secured

by the Constitution and laws of the United States. 42 U.S.C. § 1983; McRaven v.

Sanders, 577 F.3d 974, 979 (8th Cir. 2009). In an individual capacity suit under

§ 1983, a plaintiff seeks to impose personal liability on a state actor for actions taken

under color of state law. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55

(1978).

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When a state actor is sued in her individual capacity, she can plead an

affirmative defense of qualified immunity. Serna v. Goodno, 567 F.3d 944, 952 (8th

Cir. 2009). “In analyzing qualified immunity, we ascertain (1) whether the facts

alleged, construed in the light most favorable to the nonmoving party, establish a

violation of a constitutional right, and (2) whether such right was clearly established

so that a reasonable [dean] would have known her actions were unlawful.” El-

Ghazzawy v. Berthiaume, 636 F.3d 452, 456 (8th Cir. 2011) (citing Doe v. Flaherty,

623 F.3d 577, 583 (8th Cir. 2010)). The court has the discretion to choose which

prong to analyze first. Pearson v. Callahan, 555 U.S. 223, , 129 S. Ct. 808, 821-22

(2009) (overruling the mandatory two-prong analysis established in Saucier v. Katz,

533 U.S. 194 (2001)).

A. Constitutional Violation

The threshold question is whether the facts, taken in the light most favorable

to Wagner, show that Dean Jones’s actions violated a constitutional right. Sexton v.

Martin, 210 F.3d 905, 909 (8th Cir. 2000). Wagner alleges that Dean Jones violated

her First Amendment rights of political belief and association when Wagner was not

hired for any of the LAWR positions.

The First Amendment is binding on the states through the Fourteenth

Amendment. Healy v. James, 408 U.S. 169, 181 (1972). “ ‘[P]olitical belief and

association constitute the core of those activities protected by the First Amendment.’

” Rutan v. Republican Party of Ill., 497 U.S. 62, 69 (1990) (quoting Elrod v. Burns,

427 U.S. 347, 356 (1976)). In Rutan, the United States Supreme Court extended

Branti v. Finkel, 445 U.S. 507 (1980) and Elrod v. Burns, 427 U.S. 347 (1976) and

held that the First Amendment prohibits a state from basing hiring decisions on

political beliefs or associations with limited exceptions for policymaking and

confidential positions. Rutan, 497 U.S. at 79. The state can neither directly nor

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indirectly interfere with an employee’s or potential employee’s rights to association

and belief. Id. at 78.

Academic freedom is a “special concern of the First Amendment.” Keyishian

v. Bd. of Regents of Univ. of N.Y., 385 U.S. 589, 603 (1967). “No more direct assault

on academic freedom can be imagined than for the school authorities to [refuse to

hire] a teacher because of his or her philosophical, political, or ideological beliefs.”

Bd. of Regents v. Roth, 408 U.S. 169, 187-88 (1972) (Douglas, J., dissenting). But

this court has recognized that respect for the “singular nature of academic decision-

making” is also warranted because courts “lack the expertise to evaluate tenure

decisions or to pass on the merits of a candidate’s scholarship.” Okruhlik v. Univ. of

Ark., 395 F.3d 872, 879 (8th Cir. 2005). The Supreme Court has also emphasized the

respect due to academic judgment. See Regents of Univ. of Mich. v. Ewing, 474 U.S.

214, 225 (1985) (“When judges are asked to review the substance of a genuinely

academic decision, . . . they should show great respect for the faculty’s professional

judgment.”). Thus, judicial review of such decisions is limited to whether the

“decision was based on a prohibited factor.” Brousard-Norcross v. Augustana Coll.

Ass’n, 935 F.2d 974, 976 (8th Cir. 1991).

Wagner has stated a claim of First Amendment political discrimination rather

than a claim of retaliation because it is based on her status or affiliation. See

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006) (reasoning that

in the Title VII context the discrimination “provision seeks to prevent injury to

individuals based on who they are, i.e., their status. The antiretaliation provision seeks

to prevent harm to individuals based on what they do, i.e., their conduct.”). We have

considered multiple First Amendment retaliation claims in the past. See, e.g., Hughes

v. Stottlemyre, 506 F.3d 675, 677-78 (8th Cir. 2007) (former state highway patrol

sergeant alleged that his employer retaliated against him by demoting him and

transferring him in violation of his First Amendment speech rights after he opposed

changes in the highway patrol’s policy); Davison v. City of Minneapolis, Minn., 490

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F.3d 648, 651 (8th Cir. 2007) (fire captain who spoke out against a city’s budget plan

brought a § 1983 claim alleging First Amendment retaliation after she was repeatedly

denied promotions); Altonen v. City of Minneapolis, Minn., 487 F.3d 554, 558 (8th

Cir. 2007) (police investigator who supported a different police chief than the one

ultimately appointed brought a § 1983 suit based on First Amendment retaliation after

she was reassigned). But this is our first opportunity to address a political

discrimination claim.

The First Circuit Court of Appeals, which has extensive case law in the area of

political discrimination claims, applies the following test to nonpolicymaking

employees:

In political discrimination cases, nonpolicymaking employees have the

threshold burden to produce sufficient direct or circumstantial evidence

from which a rational jury could find that political affiliation was a

substantial or motivating factor behind the adverse employment action.

At that point the employer must articulate a nondiscriminatory basis for

the adverse employment action and prove by a preponderance of the

evidence that it would have been taken without regard to plaintiff's

political affiliation.

Rodriguez-Rios v. Cordero, 138 F.3d 22, 24 (1st Cir. 1998). See also Morales-Tanon

v. Puerto Rico Elec. Power Auth., 524 F.3d 15, 19 (1st Cir. 2008 ) (same) and

Hatfield-Bermudez v. Aldanondo-Rivera, 496 F.3d 51, 61 (1st Cir. 2007) (same). This

is an extension of the substantial or motivating factor test articulated by the United

States Supreme Court for First Amendment retaliation claims in Mount Healthy City

School District v. Doyle, 429 U.S. 274, 287 (1977). Other circuits have employed a

similar test. See, e.g., Hall v. Babb, 389 F.3d 758, 762 (7th Cir. 2004); Stephens v.

Kerrigan, 122 F.3d 171, 181 (3d Cir. 1997).

In Hughes v. Stottlemyre, 506 F.3d 675 (8th Cir. 2007), we established a similar

test for First Amendment retaliation claims. Id. at 678-79. A plaintiff alleging First

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Amendment retaliation must first make a prima facie showing that (1) she engaged in

conduct protected by the First Amendment; (2) she suffered an adverse employment

action; and (3) the protected activity was a substantial or motivating factor in the

employer’s decision to take the adverse employment action. Id. at 678. If a plaintiff

makes this prima facie showing, then “a presumption of retaliation arises and the

burden shifts to the defendant to advance a legitimate reason for the employment

action.” Id. at 679.

The Mt. Healthy burden-shifting analysis differs from the McDonnell Douglas

burden-shifting analysis, which is used in Title VII discrimination cases, because

under the Mt. Healthy burden-shifting mechanism applicable to a First

Amendment political discrimination claim, the burden of persuasion

itself passes to the defendant-employer once the plaintiff produces

sufficient evidence from which the fact finder reasonably can infer that

the plaintiff's protected conduct was a “substantial” or “motivating”

factor behind her dismissal. Accordingly, once the burden of persuasion

shifts to the defendant-employer, the plaintiff-employee will prevail

unless the fact finder concludes that the defendant has produced enough

evidence to establish that the plaintiff's dismissal would have occurred

in any event for nondiscriminatory reasons.

Acevedo-Diaz v. Aponte, 1 F.3d 62, 67 (1st Cir. 1993). We find the First Circuit’s test

on First Amendment discrimination to be well reasoned, based on Supreme Court

precedent, and utilized in a similar manner by other circuits. Thus, we adopt the test

as set forth above.

1. Prima Facie Showing

The parties do not dispute that Wagner’s political affiliation with the

Republican Party and her work on behalf of socially conservative organizations is

protected by the First Amendment. It also is undisputed that Wagner was not hired for

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either the full-time position or the part-time adjunct LAWR positions. If a state actor

refuses to hire an individual because of her political associations, then the individual

has suffered an adverse employment action. See Rutan, 497 U.S. at 77 (reasoning that

the “denial of a state job is a serious deprivation.”). Thus, Wagner suffered an adverse

employment action. Furthermore, it is undisputed that none of the positions were

policymaking positions.

Next, we examine whether Wagner’s political beliefs and associations were a

substantial or motivating factor in Dean Jones’s decision not to hire her. A substantial

or motivating factor can be proven through either direct or indirect evidence. Davison,

490 F.3d at 655 n.5. A plaintiff need only prove that the employer’s discriminatory

motive played a part in the adverse employment action. See id. at 657 (reasoning that

plaintiff presented sufficient evidence for jury to infer that failure to promote was

motivated in part by his constitutionally protected activities).

Wagner presented evidence that only one out of 50 faculty members at the

University is a registered Republican. She, on the other hand, is a registered

Republican and a social conservative who has worked for socially conservative

organizations.

Prior to her interview, Wagner was warned by Associate Dean Carlson to

conceal the fact that she had received a similar tenure-track job offer from Ave Maria

School of Law, which was perceived to be a conservative school. Former Associate

Dean Andersen told Dean Jones prior to Wagner’s interview that Wagner was

concerned that her conservative political views might be held against her during the

hiring process.

During the January 25, 2007, faculty meeting, which Dean Jones attended,

someone mentioned that Wagner holds conservative beliefs. It is disputed as to

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whether this occurred before or after the faculty voted to recommend that Wagner not

be hired and that Williamson, a self-portrayed liberal, be hired.

The day after the faculty vote, Associate Dean Carlson sent Dean Jones an e-

mail inquiring whether Wagner’s politics had been considered by the faculty when

they voted not to hire Wagner.

Even though Wagner was encouraged to and did apply for part-time adjunct

positions, Wagner was not given an interview and the faculty voted not to hire her.

The two individuals hired for the adjunct positions had less prior teaching experience

than Wagner and low student evaluation scores.

When the facts are viewed in their totality with all reasonable inferences being

drawn in favor of Wagner, we believe that Wagner has presented sufficient evidence

for a fact finder to infer that Dean Jones’s repeated decisions not to hire Wagner were

in part motivated by Wagner’s constitutionally protected First Amendment rights of

political belief and association.

2. Mt. Healthy Defense

Because Wagner has met her prima facie burden, the burden now shifts to Dean

Jones to show that she would have made the same hiring decisions regardless of

Wagner’s political affiliations and beliefs. Davison, 490 F.3d at 658. This is

“commonly referred to as the Mt. Healthy defense.” Padilla-Garcia v. Guillermo

Rodriguez, 212 F.3d 69, 74 (1st Cir. 2000) (citing Mt. Healthy, 429 U.S. at 287).

Dean Jones’s proffered reason for not hiring Wagner for the full-time position

was that she always adopts the faculty’s recommendation, and the faculty did not

recommend hiring Wagner because Wagner did not understand the analysis portion

of the LAWR program. When Professor Steven Burton asked Wagner about the

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relationship between teaching legal analysis and legal writing, Dean Jones alleges that

Wagner responded it would be the job of doctrinal faculty, not her, to teach legal

analysis. In response to follow-up questions about whether Wagner would teach legal

analysis, Dean Jones alleges that Wagner continued to state that she would not teach

analysis. The faculty’s hiring justification summary noted that they perceived Wagner

to be less familiar with the analysis portion of the LAWR program and, as a result, she

was viewed less favorably than Williamson.

Dean Jones’s proffered reason for not hiring Wagner for the part-time adjunct

positions was that the faculty did not recommend hiring her and she always follows

their recommendation. No further explanation was given.

Wagner disputes Dean Jones’s proffered reasons. “In a political discrimination

case, the plaintiff may discredit the proffered nondiscriminatory reason, either

circumstantially or directly, by adducing evidence that discrimination was more likely

than not a motivating factor.” Padilla-Garcia, 212 F.3d at 77 (citations omitted). “In

this way, the burden-shifting mechanism is significantly different from the device

used in other employment discrimination contexts, such as Title VII cases, where a

plaintiff is required to come forward with affirmative evidence that the defendant's

nondiscriminatory reason is pretextual.” Id. (citations omitted).

Wagner argues that Dean Jones’s proffered reason for not hiring her has no

factual basis. Wagner claims that during her interview, Professor Pettys asked her a

follow-up question to Professor Burton’s questions about whether analysis or writing

was more important. Wagner responded that both were important. When Professor

Pettys asked Wagner if she had to choose whether analysis or writing was more

important, Wagner responded that it was an unfair question because both were

important but, if she had to choose, she would emphasize writing. In her initial

interview with the Committee, Wagner states she correctly differentiated between the

Writing Center, which focuses on writing, and the LAWR program, which teaches

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both writing and analysis. Her job talk notes, the only remaining documentation of the

job talk, reference analysis twice. Wagner also maintains she knows analysis is

important because she taught legal analysis as an instructor in George Mason’s writing

program.

Wagner further contends that all of the contemporaneous documentation from

her interview process was positive and recommended that Wagner be hired. Seven

professors complimented her on her interview, and her student feedback was more

positive than the feedback Williamson received. Wagner received no negative

feedback from her interview until February 25, 2007, when she received the faculty’s

hiring justification summary.

Moreover, Dean Jones told the faculty that she could hire two full-time LAWR

instructors. Only three candidates were granted final interviews for the two positions

and the third candidate was widely viewed as unsuccessful. While the hiring

justification summary stated that, “Wagner’s on-campus interview was less successful

than Mr. Williamson’s,” the faculty provided no reason why they chose to recommend

only Williamson to Dean Jones for the two full-time LAWR positions, when they

could have recommended both Wagner and Williamson. Additionally, no justification

has been provided for the faculty’s failure to recommend Wagner for the multiple

part-time adjunct positions for which she has applied. And Wagner has evidence that

the faculty has never rejected a candidate who was recommended by the Committee

for an adjunct position.

In reviewing the evidence, the district court adopted Dean Jones’s version of

the facts and concluded that Wagner failed to meet her burden of proof that Dean

Jones failed to hire her based on her political affiliations and beliefs. But on a

summary judgment motion, the court must view the facts in the light most favorable

to the nonmoving party. Borgman, 646 F.3d at 522. The district court erred in viewing

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the facts in the light most favorable to Dean Jones and resolving issues of fact in Dean

Jones’s favor.

After considering all the evidence, it is apparent that a dispute exists regarding

a material issue of fact, namely whether Dean Jones would have made the same hiring

decisions in the absence of Wagner’s political affiliations and beliefs. Thus, the facts

viewed in the light most favorable to Wagner are sufficient to establish a violation of

her First Amendment rights.

B. Clearly Established Law

The second question in the qualified immunity analysis is whether the right that

Dean Jones allegedly violated was clearly established at the time of the violation.

“Qualified immunity is an affirmative defense for which the defendant carries the

burden of proof. The plaintiff, however, must demonstrate that the law is clearly

established.” Sparr v. Ward, 306 F.3d 589, 593 (8th Cir. 2002). It is not enough that

a right be established in an abstract sense; rather “the contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” Mathers v. Wright, 636 F.3d 396, 399 (8th Cir. 2011) (citing

Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

It is well established that “[t]he First Amendment prevents the government,

except in the most compelling circumstances, from wielding its power to interfere

with its employees’ freedom to believe and associate, or to not believe and not

associate.” Rutan, 497 U.S. at 76. Thus, the First Amendment prohibits a state from

basing hiring decisions on political beliefs or associations with limited exceptions for

policymaking and confidential positions. Id. at 79. The state can neither directly nor

indirectly interfere with an employee’s or potential employee’s rights to association

and belief. Id. at 78.

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The Supreme Court decided Rutan in 1990. Dean Jones does not contend that

either the full-time or adjunct LAWR positions were policymaking or confidential

positions and acknowledges that Wagner had a First Amendment right not to have her

hiring decision based on her political beliefs and associations. Thus, Wagner has met

her burden to prove that, at the time the hiring decisions were made, the law was

clearly established that an employee seeking employment with the state cannot be

denied a job based on her political associations or beliefs unless the position is a

policymaking or confidential position.

Because Wagner has shown that the First Amendment generally prohibits a

state from basing its hiring decision on political beliefs or associations, the question

now is “whether a reasonable [dean] could have believed [not hiring Wagner] to be

lawful, in light of clearly established law and the information [that the dean]

possessed.” Anderson, 483 U.S. at 641.

Dean Jones had several indications that Wagner’s political beliefs and

associations may have played a role in the faculty’s hiring decisions. Only one law

school faculty member out of 50 is a registered Republican. As dean, Dean Jones

generally should have been aware of her faculty’s point of view and its political

tendencies.

Associate Dean Andersen contacted Dean Jones before Wagner interviewed for

the full-time position and relayed Wagner’s concerns about whether her politics would

make it difficult for her to be hired. Dean Jones apparently did nothing to ensure that

the faculty did not impermissibly consider Wagner’s politics in making its

recommendation as to whom she should hire even though Dean Jones was present for

the faculty discussion on January 25, 2007.

After the faculty voted not to recommend Wagner for the full-time position,

Associate Dean Carlson sent an e-mail to Dean Jones questioning whether Wagner’s

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politics played a role in the faculty’s vote and if Wagner’s politics would play a role

in voting on whether she could teach the summer LAWR program or serve as an

adjunct. Dean Jones apparently completed no further investigation other than speaking

to Associate Dean Carlson. More importantly, Dean Jones took no steps to ensure that

the faculty did not take Wagner’s political associations and beliefs into consideration

when the faculty voted on whether to recommend her for an adjunct LAWR position.

Dean Jones supported Wagner’s serving as an adjunct instructor because she asked

Janis to follow up with Wagner to determine whether she was interested in the adjunct

position. But Dean Jones refused to hire Wagner and instead relied on the faculty’s

recommendations. Dean Jones did not provide Wagner with any explanation as to why

she chose not to hire her for any of the adjunct positions.

Dean Jones argues that the University has a standard policy for hiring law

school faculty. The Committee receives the applications, screens the candidates,

conducts the initial interviews, and then chooses candidates for a full-day interview.

The faculty attends the job talk portion of the candidate’s full-day interview and votes

on whether to recommend hiring candidates to the dean. Dean Jones argues that as the

dean, she has to hire the person whom the faculty recommends and that this has been

the practice for the last 50 years.

The district court found “that Jones acted in strict conformity with long-

standing hiring policy” and “deans routinely and consistently exercised no

independent personal judgment in making hiring decisions but acted entirely on the

advice and recommendations of a Faculty Appointments Committee.” Wagner,

however, presented evidence that at least one other dean in the past 50 years chose not

to hire the person whom the faculty recommended. In her deposition, Dean Jones also

conceded that she was free to refuse to hire the person recommended by the faculty

and would do so in unusual circumstances:

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Q. So you have no authority whatsoever to do anything but authorize

the faculty recommendation?

A. I would imagine if there were some unusual circumstances, but,

basically, I work at the authorization of the faculty if the process

is working.

Jones Dep. 69:15-21. Dean Jones produced no evidence that this policy is a written

policy, that her job position requires her to follow the policy, or any other evidence

that the policy is a mandatory policy.

Whether Dean Jones had the ability to hire Wagner absent the faculty’s vote is

a genuine issue of material fact that the jury, not the court, should decide.

Furthermore, Dean Jones was notified that the “process” may not have been working

properly and the faculty may have violated the First Amendment, but she still made

her hiring decision based solely on the faculty’s suggestions. By her own admission,

Dean Jones had the ability to hire someone whom the faculty had not recommended

but chose not to do so. Dean Jones’s conduct confirmed the faculty’s

recommendations, which a jury ultimately could conclude violated the First

Amendment. Consequently, Dean Jones has not shown that a reasonable university

dean in her position would have believed that failing to hire Wagner was lawful in

light of clearly established law.

C. Liability as a Supervisor

Dean Jones acted in her capacity as a supervisor. A supervisor incurs § 1983

liability

for a violation of a federally protected right when the supervisor is

personally involved in the violation or when the supervisor’s corrective

inaction constitutes deliberate indifference toward the violation. The

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supervisor must know about the conduct and facilitate it, approve it,

condone it, or turn a blind eye for fear of what [he or she] might see.

Ottman v. City of Independence, Mo., 341 F.3d 751, 761 (8th Cir. 2003) (alteration

in original) (citation and internal quotations omitted). “[A] supervisor can act with

‘deliberate, reckless indifference’ even when [s]he does not act ‘knowingly.’ ” Kahle

v. Leonard, 477 F.3d 544, 551-52 (8th Cir. 2007). “A supervisor can be found liable

under § 1983 for deliberate indifference if [s]he is aware of ‘a substantial risk of

serious harm,’ even if [s]he is not aware that the harm has, in fact, occurred.” Id.

(quoting Farmer v. Brennan, 511 U.S. 825, 842 (1994)).

But a supervisor “ ‘is only liable for [her] . . . own misconduct’ and is not

‘accountable for the misdeeds of [her] agents’ under a theory such as respondeat

superior or supervisor liability.” Whitson v. Stone Cnty. Jail, 602 F.3d 920, 928 (8th

Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, , 129 S. Ct. 1937, 1949

(2009)). “ ‘A supervisor may be held individually liable under § 1983 if [s]he directly

participates in the constitutional violation . . . .’ ” Riehm v. Engelking, 538 F.3d 952,

962-63 (8th Cir. 2008) (alterations in original) (quoting Brockinton v. City of

Sherwood, Ark., 503 F.3d 667, 674 (8th Cir. 2007)). Wagner’s claim against Dean

Jones is based on Dean Jones’s own actions and omissions during the hiring process.

Wagner has alleged facts establishing that even though Dean Jones was on notice that

Wagner’s political beliefs and associations may have impermissibly affected the

faculty’s hiring recommendation, she still refused to hire Wagner for any position.

Accordingly, Dean Jones’s position as a supervisor does not shield her from § 1983

liability.

The district court erred in finding that qualified immunity protects Dean Jones

from liability in her individual capacity. We reverse the district court’s grant of

summary judgment as to Carolyn Jones in her personal capacity, and we remand for

further proceedings consistent with this opinion.

_____________________

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