Poindexter v. Board of County Commissioners

FILED
United States Court of Appeals
Tenth Circuit

November 26, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BILL POINDEXTER,

Plaintiff-Appellant,
v. No. 07-7074
THE BOARD OF COUNTY
COMMISSIONERS of the COUNTY
of SEQUOYAH, STATE OF
OKLAHOMA, and MIKE HUFF, in
his individual capacity,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. NO. 6:06-CV-00453-FHS)

Rand C. Eddy, Sherri A. Carver, Patrick J. Holman, Eddy Law Firm, P.C.,
Oklahoma City, Oklahoma, for Plaintiff-Appellant.

Jodi S. Casey, Collins, Zorn & Wagner, P.C., Oklahoma City, Oklahoma, for
Defendants-Appellees.

Before McCONNELL, EBEL and GORSUCH, Circuit Judges.

McCONNELL, Circuit Judge.
 In 1999, newly-elected Sequoyah County Commissioner Cleon Harrell

appointed Plaintiff-Appellant Bill Poindexter to serve as Road Foreman for his

district. After Harrell’s retirement and the election of Defendant-Appellee Mike

Huff as District 3 Commissioner in 2006, Huff demoted Poindexter and replaced

him as Road Foreman with one of Huff’s political supporters. This occurred after

Poindexter declined to support Huff, briefly ran against Huff for the Commission

seat, and then worked for opponents of Huff in the primary and general elections.

Mr. Poindexter filed suit in district court, claiming that this demotion violated his

First Amendment rights of speech and political association. 1

The district court granted summary judgment for the defendants on several

grounds, including that the Road Foreman job is one for which political loyalty

may appropriately be required. See Branti v. Finkel, 445 U.S. 507, 518 (1980);

Barker v. City of Del City, 215 F.3d 1134, 1138 (10th Cir. 2000). We affirm.

I. Background

Mr. Poindexter was originally hired as Road Foreman by County

Commissioner Cleon Harrell after his election to that position in 1999.

Poindexter was a political supporter of Commissioner Harrell. In 2005, amidst

rumors that Commissioner Harrell might resign, Mike Huff began to test the

1
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties' request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.

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waters. In July, Mr. Huff called Mr. Poindexter and asked him if he wanted to

keep his job if Mr. Huff was ultimately elected. If so, Huff suggested that the two

get together to “go over some things.” In response, Mr. Poindexter expressed his

full support for the incumbent Harrell and refused to campaign or speak out

against him. Mr. Huff then assured Mr. Poindexter that he was not asking him to

oppose Commissioner Harrell, but that if he were elected to the position he

wanted Poindexter to continue to serve as Road Foreman. Poindexter responded,

“that will work.”

After this conversation, “rumor” and “gossip” led Mr. Poindexter to believe

that Mr. Huff actually intended to make another man, Ed Watts, his Road

Foreman if elected. In October 2005, Commissioner Harrell announced his

resignation, and a special election for the position was scheduled in February

2006. Concerned that he would lose his job, Mr. Poindexter ran an advertisement

in the local newspaper on November 3, indicating that he intended to run for

Commissioner himself. His campaign was short-lived. Mr. Poindexter decided

not to run for Commissioner due to various personal problems, though he never

made a formal announcement that he was no longer running.

Upon the announcement of Poindexter’s candidacy, Mr. Huff called Mr.

Poindexter and told him, “I thought you were going to be my foreman.”

Poindexter responded that he had heard that Ed Watts was going to be Huff’s

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foreman. Huff then stated, “well, I talked to him first. I’ll find someone else to

help me.” What happened at this point is disputed. The defendants point to

evidence that Mr. Huff asked Mr. Poindexter repeatedly to be his Road Foreman

if he was elected, and Mr. Poindexter refused. The plaintiff denies that he told

Huff he did not want to be retained in the position if Huff were elected.

A few weeks later, on November 14, Mr. Huff announced his candidacy for

County Commissioner, stating as part of that announcement that Ed Watts would

be his Road Foreman. Watts endorsed Huff’s candidacy and gave him political

support. Mr. Huff won the election. The day he was sworn into office, he hired

Mr. Watts as his Road Foreman. That same day, he told Mr. Poindexter that he

would give him a job paying $10,000 less than his old Road Foreman position.

Commissioner Huff gave Mr. Poindexter two weeks of paid vacation to decide

whether to take the job, and he ultimately declined the offer.

II. Analysis

The Supreme Court has held that many public employees have the right,

with certain limitations, to engage in political activities opposed to their elected

superiors without penalty to their jobs. See Elrod v. Burns, 427 U.S. 347, 356

(1976). Recognizing, however, that democratic governance requires that the

voters be able to influence the conduct and the selection of policy-making and

politically significant officials–to “throw the rascals out”–the Court has held that

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political loyalty “is an appropriate requirement for the effective performance” of

some government positions. Branti v. Finkel, 445 U.S. 507, 518 (1980). The

two-part test laid out in Elrod and further refined in Branti determines whether a

government employee’s demotion violates his right to free political association.

To survive summary judgment, an employee needs to show a “genuine dispute of

fact that (1) political affiliation and/or beliefs were ‘substantial’ or ‘motivating’

factors” in his demotion, and (2) his position did not require political allegiance.

Barker v. City of Del City, 215 F.3d 1134, 1138 (10th Cir. 2000).

The parties dispute whether the evidence establishes that Commissioner

Huff’s decision to demote Mr. Poindexter and hire Mr. Watts was motivated by

Mr. Poindexter’s perceived political affiliation. 2 We need not resolve that

dispute, because, as the district court held, the Road Foreman position

appropriately requires political loyalty and Commissioner Huff was therefore

entitled to give the job to a political supporter. To defend against a First

Amendment claim on this ground, a public employer has the burden of proving

that political loyalty is an “appropriate requirement for the effective performance

2
The district court granted summary judgment in favor of the defendants on
the ground that Mr. Poindexter failed to offer evidence from which a reasonable
jury could conclude that his political speech or association was a motivating
factor in his demotion. Because we affirm summary judgment on the political
association claim on other grounds, there is no need for us to consider that
holding. We will discuss whether Mr. Poindexter’s speech (specifically, his
statement to Mr. Huff in July 2005 that he was supporting Commissioner Harrell)
was a motivating factor in his dismissal below.

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of the public office involved.” Barker, 215 F.3d at 1138 (quoting Branti, 455

U.S. at 518). The question is not whether any particular political superior (in this

case, Commissioner Huff) actually takes political loyalty into account, but

whether the nature of the position would appropriately permit him to do so.

This Court has held that this determination is a question of fact. Snyder v. City of

Moab, 354 F.3d 1185 (10th Cir. 2003) (citing Barker, 215 F.3d at 1137); see also

McCollum v. Stahl, 579 F.2d 869, 873 (4th Cir. 1978) (holding that the nature of

the relationship between the sheriff and deputy was a question of fact to be

determined by a jury), cert. denied, 440 U.S. 912 (1979). In determining whether

a position appropriately requires political allegiance, we focus on the inherent

powers of the position and the actual duties performed. Jantzen v. Hawkins, 188

F.3d 1247, 1253 (10th Cir. 1999). Thus, if a significant factual dispute regarding

the employee’s job duties exists, summary judgment is inappropriate. Of course,

if the job description and duties performed are undisputed, then the district court

may resolve the issue as a matter of law.

The district court found that the Road Foreman’s powers and duties

included supervising the district’s employees as well as supervising inmates

working within the district; addressing all safety issues and running safety

training; delegating and supervising project assignments; terminating employees

for cause; working as County Commissioner if he is absent (but still under the

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other two Commissioners’ supervision); spending county money to purchase

materials and supplies; and acting as an ambassador to the community on behalf

of the Commissioner. Dist. Ct. Or. 1-2. Commissioner Harrell testified in his

deposition that the Foreman “acts as pretty much the assistant commissioner,”

doing whatever the Commissioner would do when the Commissioner is absent. R.

214. He further testified that it was “vital to [him] that [his] foreman be someone

that could enforce and would enforce [his] policies.” R. 107. Commissioner Huff

testified to similar effect. Mr. Poindexter himself testified that he was

“responsible for everything in District 3 and that is 24 hours a day, seven days a

week.” R. 244. He stated that he was “responsible for kind of setting some

guidelines as to how [the road crew members] do their work and how projects are

completed.” R. 245. He said that he would make modest expenditures on his

own authority—$600 was the example he used—but that before making “big”

expenditures—$3000 was the example—he would talk with the Commissioner. R.

265-66. When asked if he had responsibilities relating to citizens of the county,

Mr. Poindexter responded, “You’re responsible for being an ambassador for your

commissioner,” which includes answering what seems like “10,000 calls a year.”

R. 245. Mr. Poindexter also affirmed that “[i]f the commissioner was

unavailable, whether it was [because] he was off, or he was in meetings, or out of

town for something,” the Road Foreman would “step into somewhat his shoes

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with respect to running the county.” R. 60-61. It is undisputed that the Road

Foreman reports directly to the Commissioner and there is no intermediary

supervisory authority over him.

We believe that, on this record, a reasonable jury would be forced to

conclude that the office of Road Foreman has a significant political dimension

and sufficient discretionary authority that the County Commissioner, for whom

the Foreman works, may properly take political loyalty into account. Courts in

other parts of the country have reached similar conclusions, though the precise

job positions are vested with different responsibilities in different jurisdictions,

making firm cross-jurisdictional generalizations impossible. In Gentry v.

Lowndes County, 337 F.3d 481 (5th Cir. 2003), the Fifth Circuit found that

political allegiance is an appropriate requirement of a county Road Manager

under Mississippi law. In Mississippi, the Road Manager runs the county road

department, supervises bridge and road construction, helps prepare a budget,

purchases and leases equipment, hires assistants and employees, and carries out

the general policies of the county board of supervisors. Id. at 487. Similarly, in

Hoard v. Sizemore, 198 F.3d 205 (6th Cir. 1999), the Sixth Circuit found that

political allegiance is an appropriate requirement of the position of “County Road

Department Foreman and Garbage Coordinator.” This position involved

maintaining all of the roads in the county, supervising the county road and

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garbage departments, reporting directly to the county-judge executive, serving as

a liaison to the public regarding road problems, and answering and addressing

complaints from the public. Id. at 213-14; see also Langley v. Hot Spring County,

393 F.3d 814, 818 (8th Cir. 2005) (holding that political allegiance is an

appropriate requirement of a road foreman where the road foreman reports

directly to the chief executive and has significant contact with the public). We

believe that the positions involved in these cases are sufficiently similar to that of

district Road Foreman in Oklahoma to lend support to our conclusion in this case.

Although not cited by either party, the best case for the plaintiff is another

Fifth Circuit decision, Wiggins v. Lowndes County, 363 F.3d 387 (5th Cir. 2004),

which held that the position of district “Road Foreman” in Mississippi, unlike that

of county “Road Manager,” is sufficiently nondiscretionary that it is not

appropriate to require political allegiance. In Mississippi, Road Foremen

implement the projects determined by the Road Manager, supervise and assign

work to the road crew, inspect equipment, maintain records and inventories,

inspect roads and bridges, advise the Road Manager of repairs, and perform other

duties assigned by the Road Manager. Id. at 390. The court held that these

duties, unlike those of Road Managers, do not involve policymaking or require

confidentiality. Id. at 391. This decision might seem especially pertinent to this

case because Mr. Poindexter’s position was that of district Road Foreman, and not

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that of county Road Manager. On reflection, however, we think the Wiggins case

is distinguishable. In Oklahoma at the time of the events in this case, there were

no county-wide Road Managers; the district-level Road Foremen were the highest

officials in the road departments, subject only to the supervision and control of

the Commissioners. In most respects, including its discretionary authority over

supervising employees, determining work priorities, making spending decisions,

and serving as the communications link between constituents and the

Commissioner, the position of district Road Foreman in Oklahoma more closely

resembles that of Road Manager than Road Foreman under Mississippi law.

Mr. Poindexter cites to the district court’s unpublished decision in Lunsford

v. Board of County Commissioners, which refused to hold as a matter of law that

the Road Foreman position in Oklahoma requires political allegiance. 2006 U.S.

Dist. LEXIS 67119, at *12-*13 (LexisNexis Sept. 18, 2006). With all respect to

the district judge in that case, who sits in the state and is familiar with its

practices, we do not agree with the court’s reasoning. According to the court,

political loyalty is, as a matter of law, an inappropriate requirement because there

is “no political or partisan way to fix roads.” Lunsford, 2006 U.S. Dist. LEXIS

67119, at *13. We think this understates the role of road construction and

maintenance in rural counties. The decisions involved in road construction and

repairs are often of utmost importance to constituents and many times are

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motivated by political goals. As the Fifth Circuit observed in Gentry, 337 F.3d at

487, “Roads in rural Mississippi are the political lifeblood of elected officials,

and the public’s view of the elected supervisors depends greatly on the road

manager’s performance and supervision of employees.” We believe the record in

this case unequivocally shows that the same is true in Sequoyah County,

Oklahoma.

Mr. Poindexter maintains that summary judgment was improper because the

following disputed issues of material fact remained: (1) whether Mr. Poindexter

was an “ambassador” for the Commissioner; (2) whether the road foreman

performs the duties of the Commissioner if he is absent; and (3) whether the road

foreman had to consult with the Commissioner before making large expenditures.

We do not agree. Mr. Poindexter himself, in his deposition, described the

position of Road Foreman as “ambassador for your commissioner,” and explained

that the Foreman would, in the Commissioner’s absence, “step into somewhat his

shoes with respect to running the county.” Mr. Poindexter’s statement may not

imply that the Road Foreman performs all of the duties of the Commissioner

when he is absent, but that is not necessary to establish that the position has a

significant political dimension.

The dissent makes much of the fact that Commissioner Huff testified in his

deposition that he did not in fact take Mr. Poindexter’s political loyalty into

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account when he demoted him and hired Mr. Watts to take his place. See R. 305

(“I didn’t care if [Poindexter] run [sic] for county commissioner. He could run

for it and if I won the election, he could still be the road foreman.”); id. at 307

(when Huff was asked whether he considered the political support of persons he

might hire as Road Foreman, he responded, “No, I didn’t mind if they supported

somebody else, no sir.”) (both quoted at Diss. Op. 7). These statements, if

believed, mean only that Huff himself did not choose to hire on the basis of

political loyalty. The statements have no bearing on whether, objectively

speaking, the Road Foreman position is one for which a Commissioner could

appropriately insist on political loyalty. Politicians are always free to appoint (or

claim to appoint) government officials on the basis of merit or experience rather

than politics. Huff’s remarks are like a President claiming his choice of a

particular cabinet secretary was “nonpartisan.” A high-minded sentiment, to be

sure, but irrelevant to the constitutional character of the office.

We recognize that there is evidence that Mr. Poindexter’s discretion as

Road Foreman was limited in some ways. The Road Foreman could only fire

employees for “just cause,” R. 216, and the only employee whom Mr. Poindexter

dismissed was ultimately rehired several weeks later by Commissioner Harrell. R.

220. Mr. Poindexter testified in his deposition that he “didn’t have the authority .

. . to make great big decisions,” including making large expenditures, without

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consulting the Commissioner. R. 264. Moreover, his authority to commit county

funds was constrained by a budget. R. 218-19. Finally, two Commissioners from

other districts supervised Mr. Poindexter in the two-and-a-half month period after

Commissioner Harrell resigned and before Mr. Huff was elected. R. 266. Mr.

Poindexter was not acting as Commissioner during this time, and did not attend

County Commission meetings in Commissioner Harrell’s stead. R. 479-81.

Viewing this evidence in the light most favorable to the plaintiff, as we

must, we still do not think it is sufficient to permit a reasonable jury to conclude

that the Road Foreman position was so lacking in discretionary authority as to

make political allegiance an inappropriate requirement. That Mr. Poindexter’s

employment decisions were subject to review by Commissioner Harrell does not

mean that the Road Foreman position lacked discretionary authority, any more

than the fact that the President can override a cabinet secretary’s decisions

renders the latter a ministerial office. And it is not atypical that the authority of

an official, even an important one, to expend public money is capped, or

constrained by a budget. Nor is it significant that Mr. Poindexter was subject to

the supervision of other commissioners after Mr. Harrell’s departure from office;

no one contends that Road Foremen are independent agents not subject to

Commissioner supervision. In sum, the undisputed evidence, including Mr.

Poindexter’s own testimony, shows that the position of Road Foreman involves

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substantial (even if not unlimited) discretion and has a significant political

dimension as a communications link between constituents and their

Commissioner.

Mr. Poindexter’s briefs in this Court point to almost no evidence contrary

to the conclusion that his position had a significant political dimension. To

challenge the claim that Poindexter had authority to commit county funds, the

brief cites a span of three pages in the record, which come from Commissioner

Harrell’s deposition testimony. Aplt. Rep. Br. 18. In these pages, Harrell

explained that, as a “requesting officer,” the Road Foreman had authority to

“commit county funds” to purchase materials, within the limits of a budget. R.

217-19. Mr. Poindexter himself testified elsewhere that he could spend county

funds on his own authority, but that for a “big” expenditure (on the order of

$3000) he would consult with the Commissioner first. R. 264-65. See also R.

265 (explaining that “I could have [spent the larger sum without contacting a

commissioner], but I did not because I wanted to be on the same page.”).

To challenge the claim that Poindexter had authority to fire road crew

employees, the reply brief cites three pages in the record. Aplt. Rep. Br. 17. Two

of those pages are from Commissioner Harrell’s testimony. On the first of these

pages, Harrell testified that the Road Foreman had authority to fire employees,

but only for just cause, and that Mr. Poindexter fired only one employee, for

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disobeying orders. R. 216-17. On the second cited page, Harrell stated that some

“two, three, four weeks” after Poindexter fired this employee, Harrell “brought

him back.” R. 220. He does not explain why, or state that the discharge was

improper or invalid. The third page is the introduction to the county employee

handbook, which includes the statement, “Each employee is responsible to the

elected official who hires and/or appoints that employee.” R. 360.

The fact that a government official’s authority to spend public funds is

capped, or limited by a budget, or that his employment decisions may be

overruled by a higher-ranking elected official, does not render his position

nondiscretionary or ministerial. Appellant’s briefs do not question the fact that

the Road Foreman regularly communicates with the public on behalf of the

Commissioner, which is the most important single fact in support of the

conclusion that the job has a component of political loyalty.

The plaintiff also raised, in the alternative, a free speech claim based on the

theory that his demotion was in retaliation for Mr. Poindexter’s July 2005

averment of loyalty to then-Commissioner Harrell. We agree with the district

court that there was insufficient evidence to go to the jury on this claim. At that

time, Mr. Huff had not decided to run against Commissioner Harrell. Indeed, he

told Poindexter that he probably would not run if Harrell ran for re-election. R.

254. In the conversation, Huff gave no indication whatsoever that he was

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offended by Poindexter's statement of support for the incumbent. In fact, he

offered Mr. Poindexter the job even after that statement. R. 251. In response,

Mr. Poindexter agreed to serve if Huff won election as Commissioner. The

conversation thus does not reveal hostility on either man’s part toward the other.

Moreover, at the time of the conversation, Mr. Huff had little or no reason to be

offended even if Mr. Poindexter had declined. Mr. Huff did not run for

Commissioner until months later, when Harrell had resigned and there was a

special election. The evidence is undisputed that, as of July 2005, Mr. Huff was

reluctant to challenge Mr. Harrell and did not run in a race against him; in other

words, they were not political opponents. There is no evidence that Poindexter’s

expression of loyalty to Harrell in July 2005 offended Huff or was to his political

disadvantage at that time, and therefore no reason to infer that this was a

motivating factor in the subsequent demotion.

Because we have affirmed the district court’s grant of summary judgment

in favor of the defendants on both the political association claim and the free

speech claim, there is no need to address the Sequoyah County Board of

Commissioners’ contention that it is immune from suit under Monell v. N.Y. City

Dept. of Social Servs., 436 U.S. 658, 694-95 (1978).

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 CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s grant of

summary judgment.

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07-7074, Bill Poindexter v. The Board of County Commissioners of the County of
Sequoyah, State of Oklahoma, and Mike Huff

EBEL, J., dissenting.

The majority opinion affirms the district court’s grant of summary

judgment for defendants on the association claim, finding that the Road Foreman

position in Sequoyah County, Oklahoma, is politically sensitive and County

Commissioners may, therefore, demand political loyalty from their Road

Foremen. The majority opinion also affirms summary judgment for defendants on

the speech claim, finding that there was “no evidence that Poindexter’s expression

of loyalty to Harrell in July 2005 offended Huff or was to his political

disadvantage at that time, and therefore no reason to infer that this was a

motivating factor in the subsequent demotion.” (Maj. Op. 16.) I disagree with

the majority’s conclusions on both these claims, and write separately to explain

my position. Because I find that the position of Road Foreman may not require

political loyalty and that this issue should be submitted to the jury, I address two

issues the majority was able to avoid: (1) whether plaintiff has adequately alleged

facts that could support a finding that he was fired because of his protected

association; and (2) whether Huff is entitled to qualified immunity.
I. Political Association

To determine whether a public employee was wrongfully demoted for his

political affiliations, a court must address two issues: (1) whether the employee’s

political affiliations caused his demotion; and (2) whether the employee held a

position which legitimately required his political allegiance. See Barker v. City

of Del City, 215 F.3d 1134, 1137 (10th Cir. 2000) (stating that “public employees

receive First Amendment protection from discrimination based upon their

political beliefs, affiliation, or non-affiliation unless their work requires political

allegiance”) (quoting Mason v. Okla. Turnpike Auth., 115 F.3d 1442, 1451 (10th

Cir. 1997)). The Supreme Court’s decisions in Elrod v. Burns, 427 U.S. 347, 372

(1976) and Branti v. Finkel, 445 U.S. 507, 518 (1980) provide that an employer

may fire his employees because of their political affiliation if “party affiliation is

an appropriate requirement for the effective performance of the public office

involved.” Dickeson v. Quarberg, 844 F.2d 1435, 1441 (10th Cir. 1988) (quoting

Branti, 445 U.S. at 518).

A. Causation

When deciding a motion for summary judgment, we “view the evidence and

draw any inferences in a light most favorable to the nonmovant.” GFF Corp. v.

Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1387 (10th Cir. 1997) (citing

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Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). Viewing the evidence

in the light most favorable to the plaintiff, I conclude that Poindexter presented

enough evidence that he was demoted because of his political affiliation to

overcome a motion for summary judgment.

The plaintiff has alleged both contested and uncontested facts in support

of his claim that he was demoted because of his political affiliation. The

uncontested facts are that: (1) until Cleon Harrell dropped out of the race, the

plaintiff supported Cleon Harrell against Mike Huff in the election for County

Commissioner; (2) the defendant knew that plaintiff was supporting his rival; and

(3) as soon as defendant became the Commissioner, he demoted the plaintiff.

The parties disagree over the precise timing of Huff’s decision to hire

Watts as his Road Foreman. Huff claims that, during his November 2005

conversation with Poindexter, Poindexter stated that he no longer wanted to be

Road Foreman. Huff claims that he decided to hire Watts only after Poindexter

informed him that he no longer wanted the job. Poindexter contests Huff’s

version of their conversation, and claims Huff informed him during their

conversation in November 2005 that he had already decided to hire Watts.

Poindexter’s version of his November 2005 conversation with Huff

supports his claim that he was fired in retaliation for his political association in

two ways. First, if the jury finds that Huff had decided to hire Watts as his Road

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Foreman sometime before his November 2005 conversation with Poindexter, the

proximity between Poindexter’s declaration of support for Harrell and Huff’s

decision to hire Watts could support an inference that Poindexter’s affiliation

with Harrell caused his demotion. 1 See Maestas v. Segura, 416 F.3d 1182, 1189

(10th Cir. 2005) (“An employer’s knowledge of the protected speech, together

with close temporal proximity between the speech and challenged action, may be

sufficiently probative of causation to withstand summary judgment.”). 2

1
The parties agree, in their briefs, that Poindexter announced his own
candidacy for County Commissioner before his November 2005 conversation with
Huff. Under normal circumstances, this might defeat an inference of causation
based on the proximity of Poindexter’s earlier statement in support of Harrell and
Huff’s decision to hire Watts. See Maestas, 416 F.3d at 1189 (10th Cir. 2005)
(stating that “evidence of intervening events tend to undermine any inference of
retaliatory motive and weaken[s] the causal link” between the political speech and
plaintiff’s subsequent transfer) (citing Gubitosi v. Kapica, 154 F.3d 30, 33 (2d
Cir. 1998)). And Huff would not have violated Poindexter’s constitutional rights
if he demoted Poindexter for running against him in the race for County
Commissioner. See Jantzen v. Hawkins, 188 F.3d 1247, 1252 (10th Cir. 1999)
(rejecting plaintiff’s claim of wrongful discharge in violation of his right to
association under the First Amendment in part because plaintiff’s claim was based
on his boss’s displeasure with his own candidacy. “The right to political
affiliation does not encompass the mere right to affiliate with oneself.”). In this
case, however, the defendant explicitly stated that he had not demoted the
plaintiff because of his rival candidacy for County Commissioner. Construing all
facts in the light most favorable to the plaintiff, I believe we must conclude that
this intervening cause did not create a new reason for the defendant to demote the
plaintiff, and a jury could still find that the plaintiff was demoted because of his
constitutionally protected affiliation with, and speech for, Harrell.
2
The lapse of time between the July 2005 conversation where Poindexter
indicated his support for Harrell and the November 2005 conversation where
Poindexter claims Huff indicated he would hire Watts is greater than the time
(continued...)
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 Second, if the jury believes Poindexter’s version of his November 2005

conversation with Huff, the jury could also find that Huff fabricated his version

of their conversation to provide a pretext for Poindexter’s demotion. This

(entirely permissible) finding would provide substantial support to Poindexter’s

claim. See Ware v. Unified School Dist. No. 492, Butler County, State of Kansas,

881 F.2d 906, 911 (10th Cir. 1989) (modified in part, 902 F.2d 815 (10th Cir.

1990)) (“A plaintiff may create a reasonable inference of improper motivation by

presenting evidence tending to show that the reasons proffered for the adverse

action are without factual support.”). Thus, the plaintiff has presented more than

enough evidence that his constitutionally protected affiliation caused his

demotion to withstand a motion for summary judgment.

2
(...continued)
lapse that our cases have previously found as probative of causation. See, e.g.,
Ramirez v. Oklahoma Dept. of Mental Health, 41 F.3d 584, 595-96 (10th Cir.
1994) (overruled on other grounds by Ellis v. Univ. of Kansas Med. Ctr., 163
F.3d 1186 (10th Cir.1998)) (holding that a claim for retaliatory discharge could
survive summary judgment in large part because of plaintiff’s allegation that he
was fired just one and half months after defendants were made aware of the
defendant’s critical, but constitutionally protected, speech). The proximity is,
nonetheless, probative in this case for two reasons. First, Huff lacked the
authority to immediately demote Poindexter, but he demoted Poindexter as soon
as he was given that authority. Second, if the jury believes Poindexter’s version
of the November 2005 conversation, the jury could also conclude that Huff
decided to hire Watts sometime significantly before that conversation. In that
case, the proximity between Poindexter’s statement in support of Harrell and
Huff’s decision to hire Watts is close enough that the jury may infer a causal
connection between those two events.
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 B. Political Loyalty of the Road Foreman

As the majority concede, a determination of “[w]hether political association

is an appropriate requirement for a position has been held to be a question of fact.

However that question may be resolved as a matter of law if the facts as to the

nature of the duties of the position are undisputed.” Snyder v. City of Moab, 354

F.3d 1179, 1185 (10th Cir. 2003) (affirming jury’s verdict for defendant because

there was some evidence that plaintiff’s position required political loyalty)

(emphasis added). Critically, the nature of the duties of the Road Foreman

position in this case are contested, and so the jury should decide whether the

effective implementation of the Road Foreman’s responsibilities necessitated his

political loyalty to the Commissioner. It is beyond our competence as judges to

determine whether the Road Foreman position requires political loyalty. 3

As the defendant in this case, Huff “must bear the burden of proof on the

issue whether [political] affiliation . . . was an appropriate requirement for the

effective performance of the public office involved.” Dickeson, 844 F.2d at

1442; see also Branti, 445 U.S. at 518 (stating that when determining whether

political affiliation is an appropriate basis for demotion, “the question is whether

3
I also find it persuasive that a district judge addressing a similar claim in
Oklahoma concluded that “there [wa]s a genuine issue of material fact as to
whether [the Road Foreman position] required political allegiance.” Lunsford v.
Board of County Comm’rs of County of Rogers, 2006 WL 2679578 at *4 (N.D.
Okla. 2006).
-6-
the hiring authority can demonstrate that party affiliation is an appropriate

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

(emphasis added). In this case, however, the most important evidence supporting

the plaintiff’s position that the Road Foreman does not need to be politically loyal

is Huff’s own insistence that he did not care if Poindexter supported a different

candidate or ran against him in the elections. [R. at 39, 305-05] Huff stated at his

deposition, “I didn’t care if [Poindexter] run [sic] for county commissioner. He

could run for it and if I won the election, he could still be the road foreman.” [R.

at 305] Similarly, Huff was asked, “When you were thinking about who you were

going to hire as your road foreman, did you consider their political affiliation or

association . . . ?” Huff responded, “No, I didn’t mind if they supported

somebody else, no sir.” [R. at 307] These statements strongly suggest that Huff

did not think the job necessitated political loyalty, and Huff is in a far better

position than the members of this court to evaluate the necessity of the Road

Foreman’s political allegiance to the County Commissioner. 4

The majority concludes that based on the record in this case, “a reasonable

jury would be forced to conclude that the office of Road Foreman has a

4
Huff’s description of the nature of the Road Foreman position is
particularly significant because he may have expected different things from his
Road Foreman than had prior commissioners. See Hoard v. Sizemore, 198 F.3d
205, 213 (6th Cir. 1999) (noting that, in determining whether a position requires
political allegiance, it is important to inquire into “how the new office holder
envisions the position”).
-7-
significant political dimension.” (Maj. Op. at 8.) I disagree with the majority’s

assessment of the record and find that material questions of fact remain regarding

whether this position legitimately necessitated political allegiance. The strongest

evidence supporting Poindexter’s position is Huff’s insistence that based on his

understanding of the nature of the Road Foreman position, political allegiance

was not necessary. However, other evidence also supports Poindexter’s argument

that factual questions remain. For example, the majority rejects Poindexter’s

assertion that material questions of fact remain with regards to “whether the road

foreman performs the duties of the Commissioner if he is absent.” (Maj. Op. at

11.) For that conclusion, the majority relies heavily on Poindexter’s affirmation

of the defense counsel’s statement that Poindexter would “step into somewhat

[the commissioner’s] shoes with respect to running the county” when the

commissioner was absent. (See Maj. Op. at 12.) Unlike the majority, however, I

find that Poindexter’s affirmation of the defense counsel’s statement is inadequate

to dispose of this factual issue. First, Poindexter never explained what stepping

“somewhat into [the commissioner’s] shoes” entailed. [R. at 60-61 (emphasis

added)] The commissioner was responsible for a wide range of highly sensitive

political matters. 5 With no further elaboration from Poindexter, or other evidence

5
The Commissioner’s job included, among other things, approving payroll,
“selling or purchasing public land or buildings for the county,” making “general
financial plans for the county,” organizing “solid waste management,” and
(continued...)
-8-
suggesting that Poindexter was ever involved in anything beyond issues related to

road repair and maintenance, his affirmation of defense counsel’s statement that

he “stepped somewhat into [the commissioner’s] shoes” is far too ambiguous to

support the majority’s conclusion that no disputed issue of material fact remained

on this issue. Second, other evidence in the record supports a far narrower view

of Poindexter’s responsibilities in Harrell’s absence. For example, former

Commissioner Harrell submitted an affidavit supporting Poindexter’s opposition

to the defendants’ motion for summary judgment in which he stated, “[i]n my

absence, I did not believe Mr. Poindexter was empowered or otherwise authorized

to perform my duties as elected Commissioner for District 3, such as setting

policy, attending Board meetings, entering into contracts on behalf of the County,

hiring, or voting.” [R. at 479-80] Similarly, in a different portion of his affidavit,

Poindexter testified that the other two County Commissioners supervised his work

after Harrell stepped down, and the only difference in his job was that “instead of

having one boss, [he] had two bosses.” [R. at 136] These differing and

incomplete factual accounts are insufficient to establish the nature of the Road

Foreman position as a matter of law, and highlight the reasons that this inquiry

should remain the sole province of the jury.

5
(...continued)
serving as a member of “the governing body of the courthouse.” [R. at 314] I
know of no evidence suggesting that Poindexter was ever involved in any of these
matters.
-9-
II. Speech Claim

In determining whether an employee was wrongfully demoted because of

his political speech, this court applies the five-prong Garcetti/Pickering balancing

test. See Brammer-Hoelter v. Twin Peaks Charter Academy, 492 F.3d 1192,

1202-03 (10th Cir. 2007) (“After the Supreme Court’s recent decision in Garcetti

[v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951 (2006)], it is apparent that the

‘Pickering’ analysis of freedom of speech retaliation claims is a five step inquiry

which we now refer to as the ‘Garcetti/Pickering’ analysis.”) (internal citations

and quotations omitted). However, the district court in this case applied the

older, four-prong Pickering test. (See Ct. Order at 5.) The main substantive

change engendered by the new test is a preliminary determination of whether the

employee spoke “pursuant to his official duties,” Garcetti, 547 U.S. at 421-22,

which no one alleges was the case here. Therefore, for ease of review, I will refer

to the four-prong Pickering test. Under the four-prong Pickering test,

First, we must determine whether the employee’s speech involves a matter
of public concern. If so, we then balance the employee’s interest in
commenting upon matters of public concern against the interest of the
State, as an employer, in promoting the efficiency of the public services it
performs through its employees. Third, if the balance tips in favor of the
employee, the employee then must show that the speech was a substantial
factor or a motivating factor in the detrimental employment decision.
Fourth, if the plaintiff establishes that speech was such a factor, the
employer may demonstrate that it would have taken the same action against
the employee even in the absence of the protected speech.

-10-
Finn v. New Mexico, 249 F.3d 1241, 1247 (10th Cir. 2001) (internal citations and

quotations omitted).

The district court in this case determined that Poindexter had adequately

demonstrated the first two prongs of the Pickering test: (1) that Poindexter’s

speech in support of Harrell involved a matter of public concern; and (2) that

Poindexter’s interest in the speech outweighed Huff’s interest in “promoting the

efficiency of the public services [he] performs through [his] employees.” Id. I

agree with the district court’s decision on these prongs, and would only note one

additional factor strongly supporting the district court’s determination on the

second prong. 6 In Jantzen, 188 F.3d at 1257-58, we held that a deputy sheriff’s

interest in stating that he would run against his boss for sheriff was outweighed

by the sheriff’s need to prevent disruption in effective law enforcement. We

relied heavily on the sheriff’s testimony that, in his experience, having two people

running for office would disrupt them from properly doing their job, and noted

that “we will defer to a public employer’s reasonable predictions of disruptions.”

Id. at 1257 (quoting Cragg v. City of Osawatomie, 143 F.3d 1343, 1346 (10th Cir.

1998)); see also Worrell v. Henry, 219 F.3d 1197, 1208-09 (10th Cir. 2000)

6
Unlike the determination of the political sensitivity of a job, which will
normally raise factual questions appropriate for a jury, the first two prongs of the
Pickering analysis can generally be decided by the judge. See Clinger v. New
Mexico Highlands Univ., Bd. of Regents, 215 F.3d 1162, 1166 (10th Cir. 2000)
(stating that the first two prongs of the Pickering analysis raise questions that “are
legal in nature and must be resolved by the court”).
-11-
(relying on employer’s prediction that plaintiff’s prospective co-workers would

not cooperate with him because of his constitutionally protected speech, and

holding that the employer’s interest in effective law enforcement therefore

outweighed the plaintiff’s interest in his free speech). If we defer to an

employer’s arguably self-serving prediction of disruption, we should certainly

defer to his prediction that there would not be any disruption. In this case, Huff

stated that it would not matter to him if his Road Foreman campaigned for a

different candidate. We should defer to Huff’s statements in this regard, and

conclude that any potential disruption arising out of Poindexter’s support for

Harrell would be too minimal to justify an attempt to silence that support.

The district court also determined, and the majority agreed, that Poindexter

failed to provide sufficient evidence on the third prong of the Pickering test

addressing causation. The majority found that there was “no evidence that

Poindexter’s expression of loyalty to Harrell in July 2005 offended Huff or was to

his political disadvantage at that time, and therefore no reason to infer that this

was a motivating factor in the subsequent demotion.” (Maj. Op. at 16.) However,

as I’ve discussed above, the timing of Huff’s decision to demote Poindexter, his

knowledge of Poindexter’s support for Harrell, and the possibility that the jury

could conclude that he lied about his true motives for demoting Poindexter

provide enough evidence of causation that the issue of causation should be

-12-
decided by a jury.

Finally, the fourth prong of the Pickering test, whether Huff can point to

evidence that he would have demoted Poindexter even if Poindexter had not

stated his support for Harrell, should be decided by the jury.

III. Qualified Immunity

“Determining whether a defendant is entitled to qualified immunity

involves answering two questions: (1) whether a plaintiff has asserted that the

defendant violated a constitutional or statutory right, and if she has, (2) whether

that right was clearly established such that a reasonable person in the defendant’s

position would have known that his conduct violated that right.” Keylon v. City

of Albuquerque, 535 F.3d 1210, 1218 (10th Cir. 2008) (internal citations and

quotations omitted).

The district court held that Huff was entitled to qualified immunity because

Poindexter had failed to “establish a First Amendment violation.” (Ct. Order at

12.) I think the district court erred in its determination that, as a matter of law,

Huff did not violate Poindexter’s First Amendment rights. I must, therefore,

address the second prong of the qualified immunity analysis and determine if the

rights Poindexter alleges were violated were “clearly established” at the time of

the alleged violation. I conclude that Poindexter has adequately alleged

-13-
violations of clearly established laws, so Huff is not entitled to qualified

immunity.

Political Affiliation Claim

The right not to be demoted from a position that does not require political

allegiance is clearly established in both Supreme Court and Tenth Circuit

caselaw. See Gann v. Cline, 519 F.3d 1090, 1095 (10th Cir. 2008)

(“[C]onditioning hiring decisions on political belief and association plainly

constitutes an unconstitutional condition, unless the government has a vital

interest in doing so.”) (quoting Rutan v. Republican Party of Ill., 497 U.S. 62, 78

(1990)).

“Ordinarily, in order for the law to be clearly established, there must be a

Supreme Court or Tenth Circuit decision on point, or the clearly established

weight of authority from other courts must have found the law to be as the

plaintiff maintains.” Seamons v. Snow, 84 F.3d 1226, 1238 (10th Cir. 1996).

However, “the plaintiff need not show that the specific action at issue has

previously been held unlawful, he need only show that the alleged unlawfulness

was apparent in light of preexisting law.” Id. (internal citations and quotations

omitted).

This circuit has stated that the relevant test for qualified immunity is

-14-
whether “the right was sufficiently clear that a reasonable government officer in

the defendant’s shoes would understand that what he or she did violated that

right.” Casey v. West Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th

Cir. 2007) (emphasis added); see also Gomes v. Wood, 451 F.3d 1122, 1134 (10th

Cir. 2006) (“The law is clearly established if a reasonable official in the

defendant’s circumstances would understand that her conduct violated the

plaintiff's constitutional right.”). To determine what a reasonable person in

Huff’s shoes would have thought about the legality of his decision to demote

Poindexter, we may not inquire into Huff’s knowledge of the law. See Halperin

v. Kissinger, 807 F.2d 180, 186 (D.C. Cir. 1986). We may, however, inquire into

what someone in Huff’s position would reasonably understand the facts to be

regarding the nature of Poindexter’s position. Cf. id. (noting that the Supreme

Court precluded inquiries into a defendant’s knowledge of the law, but did not

“eliminate inquiry into intent unrelated to knowledge of the law”). In this case,

Huff’s testimony indicates that someone in his position would understand the

nature of the Road Foreman position well enough to know whether the job

required political loyalty. See Jantzen, 188 F.3d at 1259 (declining defendant’s

request for qualified immunity and relying, “most importantly, [on] the fact the

Defendant Hawkins himself knew and had empirical evidence that the lack of

political loyalty by [the plaintiffs] did not interfere with the effective performance

-15-
of [plaintiffs’] jobs”). And, if the jury chooses to believe the defendant Huff’s

own testimony on this matter, they could conclude that it was clearly established

that the job of Road Foreman was not a politically sensitive position. Until the

jury determines that factual question, therefore, Huff is not entitled to qualified

immunity as a matter of summary judgment. See Roska ex rel. Roska v. Peterson,

328 F.3d 1230, 1251 (10th Cir. 2003) (“The objective legal reasonableness of the

officer’s actions is a legal question. But where the historical facts material to

[that] issue are in dispute [there] . . . [is] an issue for the jury.”) (internal citations

and quotations omitted).

Speech Claim

Given the heightened protection supplied to employee speech, a court

should be especially reluctant to grant qualified immunity for a demotion in

retaliation for constitutionally protected speech. See Aiken v. Rio Arriba Bd. of

County Comm’rs, 134 F.Supp.2d 1216, 1223-24 (D.N.M. 2000) (granting an

employer qualified immunity for firing an employee based on his political speech

because, at the time of the firing, the Tenth Circuit had not yet made it clear that

the stricter Pickering analysis applied to cases involving an employee’s political

speech, and under the looser standards afforded in the context of political

affiliation claims, the firing would have been justified); see also Bass v. Richards,

-16-
308 F.3d 1081, 1089 (10th Cir. 2002) (“The citizenry’s ability to make known

their assessment of a candidate’s qualifications for public office is integral to the

operation of the system of government established by our Constitution.

Accordingly, [t]he First Amendment affords the broadest protection to such

political expression.”) (internal citations and quotations omitted).

Qualified immunity is not appropriate in this case under the speech claim

because, applying the four-prong Pickering test, there is substantial evidence that

Huff’s decision to fire Poindexter violated clearly established law. First,

Poindexter has asserted that he was fired in retaliation for his statements in

support of incumbent Commissioner Harrell. Statements in support of political

candidates are firmly within the sphere of matters of “public concern.” See Bass,

308 F.3d at 1089. Second, the district court found that Poindexter’s interest in his

speech in support of Harrell outweighed any interest Huff may have had in

preventing that speech. Huff does not contest that finding on appeal. Third, as

discussed above, Poindexter has alleged more than enough facts to support his

claim that his speech caused his demotion. Finally, Huff has not established that

he would have demoted Poindexter even if Poindexter had not stated his support

for Harrell. Therefore, Huff is not entitled to qualified immunity on the speech

claim.

-17-
Conclusion

Based on the foregoing, I respectfully dissent and find that this court

should REVERSE the district court’s grant of summary judgment on both the

political association and free speech claims, and REVERSE the district court’s

grant of qualified immunity to Defendant Huff. The court should REMAND the

case for further proceedings in light of the forgoing comments.

-18-