Epps v. Watson

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

JULY 18, 2007

No. 06-13378 THOMAS K. KAHN

Non-Argument Calendar CLERK

________________________

D. C. Docket No. 05-00068-CV-CDL-3

DONNA O. EPPS,

Plaintiff-Appellee,

versus

LOUISE WATSON, as Tax Commissioner of Madison

County and Individually,

Defendant-Appellant,

MADISON COUNTY, GEORGIA,

Defendant.

________________________

Appeal from the United States District Court

for the Middle District of Georgia

_________________________

(July 18, 2007)

Before EDMONDSON, Chief Judge, and BIRCH and WILSON, Circuit Judges.

BIRCH, Circuit Judge:

Madison County Tax Commissioner Louise Watson brings an interlocutory

appeal arguing that the district court erred in determining that: (1) Donna Epps’

Amended Complaint adequately pleads a First Amendment Freedom of

Association claim; (2) the Tax Commissioner’s conduct would violate clearly

established Freedom of Association law; and (3) Epps’ Amended Complaint

adequately pleads a procedural due process violation and her allegations overcome

Watson’s qualified immunity defense. We AFFIRM.

I. BACKGROUND 1

According to her Amended Complaint, Epps “was employed by the County

as a clerk in the Tax Commissioner’s Office.” R-12, Exh. A at 3. Watson, the tax

commissioner for Madison County, Georgia, supervised Epps. Epps “was not in

any decision making role within the department.” Id. at 4. “All ministerial

decisions relating to the Tax Commissioner’s Office were made by Defendant

Watson.” Id.

1

At this procedural point, we, like the district court, accept as true the facts as set forth in

Epps’ Amended Complaint. See Wilson v. Strong, 156 F.3d 1131, 1133 (11th Cir. 1998) (“In

reviewing a motion to dismiss based on qualified immunity, the district court is required to

accept the factual allegations in the plaintiff’s complaint as true and draw all reasonable

inferences in favor of the plaintiff.” (citation omitted)).

2

During the 2004 election for tax commissioner, in which Watson ran as the

incumbent, Epps allowed Watson’s opponent to place campaign signage on her

private property. Watson knew that Epps historically had allowed political

candidates to place such signage on her property and Watson did not at anytime

request permission to place campaign signage on Epps’ property.

In 2004, Watson was the incumbent in an election campaign and after

Watson was re-elected, Watson stated “I am going to clean house.” Id. at 5.

Watson dismissed Epps from her staff the day after her re-election. Watson stated

that Epps was “doing a good job,” but stated the reason for Epps’ termination was

“a cold environment.” Id. at 6. Epps sought to appeal her dismissal but could not

because the tax commissioner’s staff is not subject to the appeals process of

Madison County. Epps subsequently filed suit in district court against Watson,

both individually and as tax commissioner, alleging that she was dismissed from

Watson’s staff because she had allowed Watson’s opponent to display political

campaign signage on her private property and that she was denied due process in

attempting to appeal her dismissal. Epps, pursuant to 42 U.S.C. § 1983, sought to

recover monetary damages from Watson, alleging that Watson violated her rights

under the First and Fourteenth Amendments.

Watson filed a pre-answer motion to dismiss Epps’ claims on the basis of

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qualified immunity from suit in her individual capacity. The district court denied

Watson’s motion and she filed a timely appeal.

II. DISCUSSION

“We have jurisdiction to review the denial of the defense of qualified

immunity on interlocutory appeal pursuant to 28 U.S.C. § 1291.” Gonzalez v.

Reno, 325 F.3d 1228, 1233 (11th Cir. 2003) (citation omitted). We review a

district court’s decision to deny the defense of qualified immunity de novo,

“accepting the factual allegations in the complaint as true and drawing all

reasonable inferences in the plaintiff’s favor.” Id. (citation omitted). Our circuit,

however, imposes a heightened pleading requirement in section 1983 claims

against individuals and plaintiffs cannot rely on “vague or conclusory” allegations.

See GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1367 (11th Cir. 1998)

(“Some factual detail in the pleadings is necessary to the adjudication of § 1983

claims. This is particularly true in cases involving qualified immunity, where we

must determine whether a defendant's actions violated a clearly established

right.”); Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984) (holding that

in civil rights actions “a complaint will be dismissed as insufficient where the

allegations it contains are vague and conclusory.” (citations omitted)).2 In such

2

In Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S.

163, 113 S. Ct. 1160 (1993), the Supreme Court ruled that heightened pleading was not to be

4

cases, the complaint must allege the relevant facts “with some specificity.” Id.

(citation omitted). “We must also keep in mind the fact that we generally accord

official conduct a presumption of legitimacy.’” Dalrymple v. Reno, 334 F.3d 991,

996 (11th Cir. 2003) (alterations omitted) (citing United States Dep’t of State v.

Ray, 502 U.S. 164, 179, 112 S. Ct. 541, 550 (1991)).

Within the context of a Rule 12(b)(6) motion, as there is no record beyond

the complaint, the well-pleaded factual allegations in the plaintiff’s complaint are

the focus of the determinations. Id. at 994-95. “Unless the plaintiff’s allegations

state a claim of violation of clearly established law, a defendant pleading qualified

immunity is entitled to dismissal before the commencement of discovery.”

Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815 (1985) (citation

omitted); Behrens v. Pelletier, 516 U.S. 299, 309, 116 S. Ct. 834, 840 (1996) (“At

[the 12(b)(6)] stage, it is the defendant’s conduct as alleged in the complaint that is

scrutinized for ‘objective legal reasonableness.’”).

“The Supreme Court has urged us to apply the affirmative defense of

qualified immunity at the earliest possible stage in litigation because the defense is

immunity from suit and not from damages only.” Marsh v. Butler County, Ala.,

applied in civil rights cases against municipalities, because municipalities were not entitled to

immunity. The Supreme Court did not, however, address the propriety of the application of

heightened pleading in civil rights cases under 42 U.S.C. § 1983 when the defendant is not a

municipality.

5

268 F.3d 1014, 1022 (11th Cir. 2001) (en banc) (citations omitted). We have

applied the qualified immunity defense at the 12(b)(6) stage before. See, e.g.,

Chesser v. Sparks, 248 F.3d 1117 (11th Cir. 2001) (reversing the district court’s

denial of official’s motion to dismiss plaintiff’s freedom of expression and freedom

of association claims on the basis of qualified immunity); Denno v. Sch. Bd. of

Volusia County, 218 F.3d 1267 (11th Cir. 2000) (affirming the district court’s Rule

12(b)(6) dismissal of plaintiff’s § 1983 claim for the deprivation of First

Amendment rights against the individual defendants); Maggio v. Sipple, 211 F.3d

1346 (11th Cir. 2000) (reversing the district court’s failure to grant 12(b)(6)

motion to dismiss because defendants were entitled to qualified immunity).

A public official who asserts a defense of qualified immunity must establish

that he was “engaged in a ‘discretionary function’ when he performed the acts of

which the plaintiff complains.” Holloman ex rel. Holloman v. Harland, 370 F.3d

1252, 1264 (11th Cir. 2004) (citation omitted). Where there is no dispute as to the

discretionary nature of the actions complained of, like here, we look to determine

(1) whether the plaintiff has factually alleged the deprivation of a constitutional

right; and (2) whether that right was clearly established at the time of the violation.

Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001); Holloman, 370

F.3d at 1264. The plaintiff bears the burden of proof as to both of these

6

determinations. Dalrymple, 334 F.3d at 995 (“Once the government official has

established that she was acting within her discretionary authority, the burden shifts

to the plaintiff [] to show that qualified immunity is not appropriate.” (citation

omitted)). With this two-step inquiry in mind, we turn to the question of whether

Watson’s decision to terminate Epps’ employment violated the First Amendment

right involved here–the freedom of association–in such a manner that a reasonable

government official would have known.3

A. Epps’ First Amendment Claim

In her Amended Complaint, Epps alleged that she allowed Watson’s

opponent to place campaign signage on her private property. Moreover, Epps

alleged that Watson knew that Epps had historically allowed political candidates to

place such signage on her private property and Watson did not at anytime request

permission to place campaign signage on Epps’ property. Epps alleged that she

was fired the day of Watson’s re-election and was told by Watson that she was

performing well at the time she was dismissed and the reason for the dismissal was

a “cold environment.” R-12, Exh. A at 5-6. Watson contends Epps’ First

Amendment claim fails because the allegations in her Amended Complaint do not

3

We agree with both the district court and counsel that this case is best construed as a

pure political patronage case. See Terry v. Cook, 886 F.2d 373, 377 (11th Cir. 1999) (holding

that when public employment is “absolutely conditioned on political allegiance and not upon the

content of expressions of political beliefs,” the political patronage analysis is appropriate).

7

show a violation of freedom of association, and even if they did, Epps has not

established that Watson had fair warning that dismissing Epps would violate

clearly established law.

1. Sufficiently Alleged Constitutional Violation

Epps alleged that she allowed Watson’s opponents to place campaign

signage on her property during Watson’s 2004 campaign and the day after Watson

won re-election she fired Epps. It is reasonable to infer from Epps’ Amended

Complaint that Epps contended that her indication of public support for Watson’s

challenger was the reason that Watson fired her.

In examining whether the Epps has alleged a constitutional violation, we

first note that we agree with both the district court and counsel that this case is best

construed as a pure political patronage case. See Terry v. Cook, 886 F.2d 373, 377

(11th Cir. 1999) (holding that when public employment is “absolutely conditioned

on political allegiance and not upon the content of expressions of political beliefs,”

the political patronage analysis is appropriate). In such cases, we use the

Elrod-Branti analysis in determining if patronage discharges were constitutional.

In Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2689 (1976), a plurality of

the Supreme Court declared patronage dismissals unconstitutional, because the

practice limited political belief and association, and therefore violated the First and

8

Fourteenth Amendments. The Court, however, created a narrow exception,

allowing patronage dismissals of those holding policymaking positions, reasoning

that this exception would, in part, advance the important government goal of

assuring “the implementation of policies of [a] new administration, policies

presumably sanctioned by the electorate.” Id. at 367, 96 S. Ct. at 2687. Four years

later, in Branti v. Finkel, 445 U.S. 507, 518, 100 S. Ct. 1287, 1295 (1980), the

Court modified the test: “[T]he ultimate inquiry is not whether the label

‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is

whether the hiring authority can demonstrate that party affiliation is an appropriate

requirement for the effective performance of the public office involved.”

In Terry v. Cook, we addressed what positions may permissibly be subject to

political patronage action in the context of a county sheriff’s office. 866 F.2d at

373. We held that “[t]he closeness and cooperation required between sheriffs and

their deputies” necessitated “absolute authority” by the sheriff over hiring and

firing his deputies. Id. at 377. We reasoned that “a deputy sheriff is the general

agent of and empowered to enter into business transactions for the sheriff . . . and

the sheriff is civilly liable for actions committed by a deputy done in the

performance of his duty.” Id. (internal citations omitted). In contrast, we stated

that “[i]t has not been established that loyalty to an individual sheriff is an

9

appropriate requirement for effective job performance for the [] positions of clerk,

investigator, dispatcher, jailer, and process server.” Id. at 377-78. Focusing on

five aforementioned positions’ non-deputized status and clerical nature, we stated

that:

Such positions traditionally revolve around limited objectives and

defined duties and do not require those holding them to function as the

alter ego of the sheriff or ensure that the policies and goals of the

officer are implemented. Although it can be said that each job in the

sheriff’s office implements the policies of the office, the limited and

defined roles these positions tend to play do not support the need for

political loyalty to the individual sheriff.

Id. at 378. As a result, we remanded the matter to the district court for “a

determination of the actual responsibilities of each position and whether political

loyalty to the elected sheriff is a reasonably appropriate requirement for the

effective performance of those jobs.” Id.

Here, the allegations in the Amended Complaint do not indicate that Epps’

job was deputized or “require[d] [her] to function as the alter ego of the [Tax

Commissioner] or ensure that the policies and goals of the office are

implemented.” See id. Instead, at this stage, there are only allegations that as a

“clerk,” Epps “was not in any decision making role within the department,” R-12,

Exh. A at 4, a job that can reasonably be inferred to “traditionally revolve around

limited objectives and defined duties.” See Terry, 886 F.2d at 378. As a result,

10

construing all reasonable inferences in the light most favorable to Epps, we find

that Epps has factually alleged the deprivation of a constitutional right to freely

associate and the district court did not err in inferring a violation of Epps’ First

Amendment right of freedom of association.

2. Clearly Established Law

“Clearly established law” is law that is sufficiently defined so as to provide

public officials with “fair notice” that the conduct alleged is prohibited. Hope v.

Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 2515 (2002) (“For a constitutional right

to be clearly established, its contours must be sufficiently clear that a reasonable

official would understand that what he is doing violates that right. This is not to

say that an official action is protected by qualified immunity unless the very action

in question has previously been held unlawful; but it is to say that in the light of

pre-existing law the unlawfulness must be apparent.” (internal citations and

quotation omitted)). Citing Terry, Elrod, and Branti, Epps argues that the law in

this instance is “clearly established,” that is, she asserts that “[p]ublic employment

may not be conditioned upon political affiliation to any party or individual.”

Appellee Br. at 4.

Prior to Epps’ termination, we issued Terry. Although in the context of a

sheriff’s office instead of a tax commissioner, Terry’s premise clearly established

11

that “the limited and defined role[] [a clerk] tend[s] to play do[es] not support the

need for political loyalty to the individual sheriff.” See 866 F.2d at 378.

“Although the facts of the case are not identical,” as here Epps was a clerk under

the Tax Commissioner and not a sheriff, Terry’s “premise has clear applicability in

this case.” See Hope, 536 U.S. at 743, 122 S. Ct. at 2517.

We find that Watson did have “fair notice” that such alleged conduct is

unconstitutional, as the law here was “clearly established.” See Hope, 536 U.S. at

739, 122 S. Ct. at 2515. As a result, Epps’ Amended Complaint has alleged a

violation of a clearly established constitutional right. See Williams v. Ala. State

Univ., 102 F.3d 1179, 1182 (11th Cir. 1997) (per curiam) (stating that while

qualified immunity is typically addressed at the summary judgment stage of the

case, the defense may be raised and considered on a motion to dismiss; the motion

will be granted if the “complaint fails to allege the violation of a clearly established

constitutional right.”).

B. Epps’ Procedural Due Process Claim

Epps alleged that no hearing was provided to her upon her firing in violation

of her constitutional right to procedural due process. Watson asserts that Epps’

procedural due process claim fails because her Amended Complaint is devoid of

allegations describing a “merit system” promulgated, or even adopted, by the

12

Madison County Tax Commissioner. As a result, Watson asserts, under the

heightened pleading requirement, Epps failed to adequately plead a due process

violation.

1. Sufficiently Alleged Constitutional Violation

To establish such a claim, the former clerk must show that she had a

protected property interest in her employment. See Bd. of Regents of State

Colleges v. Roth, 408 U.S. 564, 571, 92 S. Ct. 2701, 2706 (1972). “State law

determines whether a public employee has a property interest in his or her job.”

Warren v. Crawford, 927 F.2d 559, 562 (11th Cir.1991). “Under Georgia law, a

public employee generally has no protected property interest unless he or she is

employed under a civil service system, which allows termination only for cause.”

Brett v. Jefferson County, Ga., 123 F.3d 1429, 1433-34 (11th Cir. 1997); see also

Ross v. Clayton County, Ga., 173 F.3d 1305, 1307 (11th Cir. 1999) (“Generally, a

public employee has a property interest in continued employment if state law or

local ordinance in any way limits the power of the appointing body to dismiss an

employee.” (citation and internal quotation omitted)).

Watson contends that while Epps attached the dismissal policy of Madison

County to her Amended Complaint, the Tax Commissioner and Madison County

are separate political entities and that O.C.G.A. § 47-2-292(a) provides that “[a]ll

13

tax commissioners . . . and employees in their offices shall be subject to a merit

system of personnel administration, as promulgated by each such office . . . .” As a

result, Watson asserts that Epps failed to plead or otherwise show that the Madison

County personnel policy applies to her employment on the staff of the Tax

Commissioner. We disagree.

Epps alleged in paragraph 30 of her Amended Complaint that “Defendant

Watson’s employees are required to be subject to a merit system of employment;

Defendant County has in place a merit system of employment. Defendants’ failed

to provide the hearing as requested . . . .” R-12, Exh. A at 10. The prior paragraph

“places before the court Section 14(4), the dismissal policy of Madison County . . .

.” Id. at 9. Madison County personnel policy provides that county employees may

be terminated for cause and that such employees are entitled to a hearing prior to

termination. Drawing all inferences in favor of Epps, we find that Epps has

sufficiently alleged that she was covered by a policy under which she could only be

terminated for cause, that is, that the Madison County Tax Commissioner who

“unjustly terminated” Epps had adopted the dismissal policy of Madison County.

2. Clearly Established Law

Having sufficiently alleged a protected property interest, it is clearly

established that an employee with a protected property interest in continued

14

employment may not be terminated without due process of law. See Cleveland Bd.

of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S. Ct. 1487, 1495 (1985) (holding

that public employee with property interest in continued employment is entitled,

prior to termination, “to oral or written notice of the charges against him, an

explanation of the employer’s evidence and an opportunity to present his side of

the story”). As a result, at this stage, Defendant Watson is not entitled to qualified

immunity on Epps’ procedural due process claim.

IV. CONCLUSION

Under the alleged facts, a reasonable public official in Tax Commissioner

Watson’s place could not have believed that firing Epps from her job as a clerk did

not violate First Amendment law. As a result, Tax Commissioner Watson is not

entitled to dismissal on the basis of qualified immunity with respect to Epps’ First

Amendment claim at this stage of the case. Moreover, the Amended Complaint

states a cause of action sufficient to withstand a 12(b)(6) motion regarding Epps’

procedural due process claim. We therefore AFFIRM the district court’s order

denying Louise Watson’s motion to dismiss these claims based on qualified

immunity.

15

EDMONDSON, Chief Judge, CONCURS in the result.

16