Tice v. Dougherty

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 24, 2021
• Docket: 20-6062
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 24, 2021 _________________________________ Christopher M. Wolpert Clerk of Court SABRINA TICE,

Plaintiff - Appellee,

v. No. 20-6062 (D.C. No. 5:18-CV-00974-R) CHARLIE DOUGHERTY, (W.D. Okla.)

Defendant - Appellant,

and

BOARD OF COUNTY COMMISSIONERS OF LINCOLN COUNTY,

Defendant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, Chief Judge, BALDOCK, and CARSON, Circuit Judges. _________________________________

Plaintiff Sabrina Tice began working for the Lincoln County, Oklahoma

Sheriff’s Department as a full-time deputy in 2012. At the time, and throughout the

pendency of this case, Defendant Charlie Dougherty was the elected Sheriff.

Plaintiff’s husband, John Tice, also worked as a deputy with the Sheriff’s

Department. In 2015, Mr. Tice was indicted on criminal charges related to an alleged

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. excessive use of force. Given the charges, the Sheriff’s Department terminated Mr.

Tice’s employment. Plaintiff was unhappy about the termination decision and

allegedly yelled at Defendant to express her disagreement, but Plaintiff was not

disciplined for the outburst. In September 2015, Plaintiff filed a complaint against

Captain Jack Johnson for making derogatory remarks about her husband. On the

same day, Plaintiff surreptitiously recorded a conversation with Captain Johnson.

Plaintiff also recorded conversations with several other officers. Although Plaintiff’s

direct supervisor was aware of her behavior, Plaintiff was not disciplined.

The charges against Mr. Tice were subsequently dismissed, and in April 2016,

Mr. Tice declared his candidacy for sheriff in the upcoming election. Plaintiff openly

supported her husband’s campaign. While Plaintiff concedes that Defendant treated

her well during the election, she contends that the undersheriff, Tim Donaldson,

acted hostilely toward her because she supported her husband’s candidacy.

Defendant won reelection, and the next day, he terminated Plaintiff’s employment.

After her termination, Plaintiff filed this § 1983 action in the Western District

of Oklahoma. As relevant here, Plaintiff alleges that Defendant violated her First

Amendment right to association because he fired her for supporting her husband’s

candidacy for Lincoln County Sheriff. Defendant sought qualified immunity

claiming that he did not violate Plaintiff’s First Amendment right to association and

that, even if he did, the contours of the right were not clearly established. The

district court denied Defendant’s motion. The court held that a reasonable jury could

find (1) Defendant fired Plaintiff because of her political association, and (2) he

2 would not have made the same termination decision absent Plaintiff’s protected First

Amendment activity. The court also held that Plaintiff’s First Amendment right to

political association was clearly established in November 2016, when her

employment was terminated.

This interlocutory appeal followed. Defendant argues the district court erred

in denying him qualified immunity. Specifically, he argues the court wrongly

concluded that a genuine issue of material fact exists as to whether he violated

Plaintiff’s First Amendment right. Defendant also contends that, even if he violated

Plaintiff’s First Amendment association right, the contours of that right were not

clearly established in November 2016, when the termination decision was made.

Because both arguments are unavailing, the district court properly denied qualified

immunity. Thus, exercising jurisdiction under 28 U.S.C. §.1291, we affirm.

***

Before reaching the merits of the appeal, we pause to note our jurisdictional

limitations. In an interlocutory appeal challenging the denial of qualified immunity,

this court’s jurisdiction is limited to abstract questions of law. Henderson v. Glanz,

813 F.3d 938, 947 (10th Cir. 2015). Thus, we may review: “(1) whether the facts that

the district court ruled a reasonable jury could find would suffice to show a legal

violation, or (2) whether that law was clearly established at the time of the alleged

violation.” Id. at 948 (quotation marks omitted). We therefore have “jurisdiction

over appeals challenging the denial of a qualified-immunity-based motion for

summary judgment only if a defendant-appellant does not dispute the facts a district

3 court determines a reasonable juror could find but, instead, ‘raises only legal

challenges to the denial of qualified immunity based on those facts.’” Ralston v.

Cannon, 884 F.3d 1060, 1067 (10th Cir. 2018) (quoting Henderson, 813 F.3d at 948).

Defendant recognizes this jurisdictional limitation. See Appellant’s Br. at 2–4.

And while Plaintiff contends Defendant challenges the district court’s factual

findings, the thrust of Defendant’s argument is that, even accepting the district

court’s factual findings as true, no reasonable juror could conclude he violated

Plaintiff’s First Amendment rights. We have jurisdiction to address this legal

question. We likewise have jurisdiction to consider whether Plaintiff’s asserted right

was clearly established at the relevant time.

We review the district court’s denial of summary judgment on qualified

immunity grounds de novo. Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015).

When a defendant asserts a qualified-immunity defense, the plaintiff must show that:

(1) the defendant violated a federal statutory or constitutional right; and (2) the right

was clearly established at the time of the defendant’s conduct. District of Columbia

v. Wesby, 138 S. Ct. 577, 589 (2018). Defendant contends Plaintiff failed to establish

either prong. We address each in turn.

A. First Amendment Violation

Under the first prong of qualified immunity, Plaintiff must demonstrate

Defendant violated a federal statutory or constitutional right. Id. As relevant to this

appeal, Plaintiff contends Defendant violated her First Amendment right to political

4 association. “The First Amendment protects public employees from discrimination

based upon their political beliefs, affiliation, or non-affiliation unless their work

requires political allegiance.” Snyder v. City of Moab, 354 F.3d 1179, 1184 (10th

Cir. 2003). Accordingly, a public employee has a valid First Amendment claim if

she is discharged for her support of a particular candidate unless the employer can

show her position requires political allegiance. Id. at 1184–85.

In this case, Defendant does not suggest Plaintiff’s employment required

political allegiance. Therefore, Plaintiff must only show that her political affiliation

was a “substantial” or “motivating” factor behind Defendant’s termination decision.

Poindexter v. Bd. of Cnty. Comm’rs of Cnty. of Sequoyah, 548 F.3d 916, 919 (10th

Cir. 2008). If Plaintiff carries this burden, Defendant may avoid liability if he

establishes by a preponderance of the evidence that he would have fired Plaintiff

even in the absence of her protected conduct. Walton v. Powell, 821 F.3d 1204, 1211

(10th Cir. 2016).

The district court concluded that a reasonable juror could find (1) Plaintiff’s

political affiliation was a substantial factor in her termination, and (2) Defendant

would not have fired Plaintiff absent the protected conduct. In doing so, the court

relied largely on the fact that Defendant was well aware of Plaintiff’s political

activities and fired her just one day after he won reelection. The court also found

that Plaintiff was fired in part because of the recommendation of undersheriff Tim

Donaldson, who had harassed Plaintiff for supporting her husband’s campaign.

Defendant presented some evidence he would have fired Plaintiff anyway, but the

5 court determined the evidence was not sufficient to establish that “any reasonable

jury” would conclude Defendant would have taken the adverse action in the absence

of Plaintiff’s support of her husband’s campaign. From our de novo review, the

district court did not err when it found Plaintiff carried her burden of showing

Defendant violated her First Amendment right to political association.

An adverse employment action “in close proximity to protected speech[,]” plus

the employer’s knowledge of the protected conduct, may be sufficiently probative to

show the employee’s protected conduct was a substantial factor in the adverse

employment decision. Maestas v. Segura, 416 F.3d 1182, 1189 (10th Cir. 2005). In

this case, as the district court noted, Defendant fired Plaintiff the day after he won

reelection. Defendant argues the temporal proximity should be measured from the

day Mr. Tice announced his candidacy because Plaintiff supported her husband’s

campaign from the beginning. Using this measure, Defendant contends he didn’t fire

Plaintiff until more than six months after she engaged in protected conduct. And this

gap, he argues, is “too long, standing alone, to establish a causal link.”

Other record evidence undercuts Defendant’s argument. Defendant testified,

for example, that the only reason he didn’t fire Plaintiff during the election was

because it would look bad. Given Defendant’s admission that he would have fired

Plaintiff earlier if it wouldn’t have adversely affected his campaign, there is a clear

temporal proximity between Plaintiff’s protected conduct—supporting her husband’s

campaign—and her termination. It’s also undisputed that Defendant knew about

Plaintiff’s open support for Mr. Tice’s candidacy. Thus, the temporal proximity

6 combined with Defendant’s knowledge of Plaintiff’s protected activity supports a

reasonable inference that Plaintiff’s political association was a substantial factor in

her discharge.

But that’s not all. Causation can also be shown where “the employer

expressed opposition to the employee’s speech . . . .” Id. Although Defendant

treated Plaintiff well during the election, undersheriff Tim Donaldson acted hostilely

toward her because of her political affiliation. For example, after Plaintiff

participated in a parade for her husband’s campaign, Donaldson texted Plaintiff a

picture of herself in the parade with the caption: “No loyalty, shameful &

embarrassing, guess you didn’t abstain from campaigning after all.” While

Defendant knew about Donaldson’s harassment, he still relied on Donaldson’s

recommendation in deciding to terminate Plaintiff’s employment. Thus, Defendant

may not have expressly opposed Plaintiff’s political association, but he tacitly

condoned Donaldson’s opposition to and harassment of Plaintiff by relying on his

recommendations to fire her.

Finally, Defendant correctly points out that there is evidence in the record to

support the conclusion that he would have fired Plaintiff even if she hadn’t

campaigned on behalf of her husband. That evidence, however, is not sufficient to

command the conclusion that Defendant would have taken the adverse action absent

Plaintiff’s protected conduct. Although Plaintiff allegedly engaged in some

unbecoming behaviors, nothing was said to her in the eighteen-month period during

which she engaged in the behaviors. Nor was she subject to any discipline prior to

7 her termination. It’s tough to say Defendant would have fired Plaintiff anyway when

he hadn’t even disciplined her up to that point. Accordingly, Defendant failed to

meet his burden of showing, by a preponderance of the evidence, that he would have

fired Plaintiff regardless of her political association.

In sum, a reasonable jury could find that Plaintiff’s political affiliation was a

substantial or motivating factor in her termination and that Defendant would not have

made the same decision absent the protected conduct.

B. Clearly Established

Defendant nonetheless argues he is entitled to qualified immunity because,

even if he did violate Plaintiff’s First Amendment right to association, the contours

of that right were not clearly established. “A clearly established right is one that is

‘sufficiently clear that every reasonable official would have understood that what he

is doing violates that right.’” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam)

(quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). “To be clearly established,

a legal principle must have a sufficiently clear foundation in then-existing

precedent.” Wesby, 138 S. Ct. at 589. Though “a case directly on point” is not

required, “existing precedent must have placed the statutory or constitutional

question regarding the illegality of the defendant’s conduct beyond debate.”

Cummings v. Dean, 913 F.3d 1227, 1239 (10th Cir.), cert. denied sub nom.

Cummings v. Bussey, 140 S. Ct. 81 (2019). Ordinarily, “there must be a Supreme

Court or Tenth Circuit decision on point, or the clearly established weight of

8 authority from other courts must have found the law to be as the plaintiff maintains.”

Toevs v. Reid, 685 F.3d 903, 916 (10th Cir. 2012) (quotation marks omitted).

As relevant here, the First Amendment has long “protect[ed] public employees

from discrimination based upon their political beliefs, affiliation, or non-affiliation

unless their work requires political allegiance.” Mason v. Okla. Tpk. Auth., 115 F.3d

1442, 1451 (10th Cir. 1997) (overruled on other grounds). This court has more than

a few published cases explaining that an employer may be liable to an employee in a

§ 1983 action when the employer takes an adverse employment action based

substantially on the employee’s political affiliation. See id.; Jantzen v. Hawkins, 188

F.3d 1247 (10th Cir. 1999); Dickeson v. Quarberg, 844 F.2d 1435 (10th Cir. 1988);

Francia v. White, 594 F.2d 778 (10th Cir. 1979). And this general rule has been

applied specifically in cases where, like here, a sheriff’s deputy is fired after

campaigning for another candidate for sheriff. See Jantzen, 188 F.3d at 1259;

Francia, 594 F.2d at 779. We therefore agree with the district court that the contours

of Plaintiff’s First Amendment right to political association were clearly established

when she was terminated in November 2016.

Defendant’s sole argument to the contrary is without merit. According to

Defendant, the law is not clearly established because of a factual distinction between

this case and Jantzen. In Jantzen, the sheriff explicitly told his employees that

anyone who openly opposed his reelection would be fired, see 188 F.3d at 1250,

whereas here, Defendant never directly told Plaintiff he terminated her employment

because she supported her husband’s campaign.

9 This distinction is of no moment for purposes of our clearly-established law

analysis. If anything, the distinction may impact Plaintiff’s ability to establish the

constitutional violation, but it does not change whether the constitutional right itself

is clearly established. That is, without the direct evidence that she was fired because

of her political affiliation, Plaintiff may struggle to persuade a jury her political

association was a substantial or motivating factor in her termination. But assuming

she does convince the jury, Defendant is not shielded from liability merely because

he more carefully hid his alleged motive for terminating Plaintiff’s employment.

For the reasons provided herein, we agree with the district court that a

reasonable jury could find Plaintiff’s political association was a substantial or

motivating factor in her termination, and that Defendant would not have made the

same termination decision absent the protected conduct. We further conclude the

contours of Plaintiff’s First Amendment right to association were clearly established

when she was terminated in 2016. We therefore affirm the judgment of the district

court.

Entered for the Court

Bobby R. Baldock Circuit Judge