RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0286p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
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Plaintiff-Appellee, -
LINDA WELLS BACK,
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Nos. 07-5934/5935
v.
,
>
KEITH A. HALL (07-5934) and JOEL SCHRADER -
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Defendants-Appellants. -
(07-5935),
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N
Appeal from the United States District Court
for the Eastern District of Kentucky at Frankfort.
No. 06-00005—Joseph M. Hood, District Judge.
Argued: July 24, 2008
Decided and Filed: August 11, 2008
Before: MOORE and SUTTON, Circuit Judges; ALDRICH, District Judge.*
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COUNSEL
ARGUED: Laurence J. Zielke, ZIELKE LAW FIRM, Louisville, Kentucky, William C. Hurt, Jr.,
HURT, CROSBIE & MAY, Lexington, Kentucky, for Appellants. Thomas E. Clay, LAW
OFFICES, Louisville, Kentucky, for Appellee. ON BRIEF: Laurence J. Zielke, Nancy J. Schook,
ZIELKE LAW FIRM, Louisville, Kentucky, William C. Hurt, Jr., Aaron Davis Reedy, HURT,
CROSBIE & MAY, Lexington, Kentucky, for Appellants. Thomas E. Clay, LAW OFFICES,
Louisville, Kentucky, for Appellee.
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OPINION
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SUTTON, Circuit Judge. In 2003, while a Democrat occupied the Kentucky governor’s
mansion, Linda Back, a registered Democrat, received a civil-service position in the Kentucky
Office of Homeland Security. In 2005, one year after a Republican administration took the reins of
State government, Keith Hall and Joel Schrader, Back’s supervisors, fired her. Back sued them
under 42 U.S.C. § 1983, alleging that they fired her based on protected speech and political
affiliation in violation of the First (and Fourteenth) Amendment. Before discovery commenced, the
*
The Honorable Ann Aldrich, United States District Judge for the Northern District of Ohio, sitting by
designation.
1
Nos. 07-5934/5935 Back v. Hall et al. Page 2
defendants asserted qualified immunity, which the district court granted as to Back’s freedom-of-
speech claims but denied as to Back’s political-affiliation claims. Hall and Schrader seek
interlocutory review of the district court’s political-affiliation decision, and we affirm.
I.
As is always the case when we review a Rule 12(b)(6) or Rule 12(c) decision, we accept the
facts as the plaintiff, here Linda Back, has pleaded them. On February 16, 2003, the Kentucky
Office of Homeland Security hired Back as a Grants and Contracts Administrator, a position
protected by Kentucky’s civil-service statute. Beginning in December 2003, during the State’s
transition from a Democratic to a Republican administration, there was considerable turnover within
the Office. As “the only [civil-service] system employee of the office throughout the gubernatorial
transition period,” Back was given “an increasing level of administrative responsibility.” JA 17.
Under the guidance of the newly appointed Executive Director, Erwin Roberts, Back trained new
employees and maintained responsibility for processing and administering the agency’s federal
homeland-security grant applications. Through the ensuing spring and summer, Roberts noticed the
increased responsibility Back had undertaken and talked to her about “upgrading her position.” JA
20.
Despite Back’s good relationship with Roberts, tensions developed between Back and other
Republican-appointed supervisors. On April 16, 2004, Joel Schrader became the Deputy Director
of the Office, and, according to Back, he “repeatedly invoked partisan political considerations in the
process of awarding Federal Homeland Security grants, and in the hiring of personnel.” JA 18. He
once told Back that “certain local governments would not receive funding because local officials
were Democrats.” JA 19. Back says that she repeatedly “voiced her concerns” about Schrader’s
partisan maneuvering, JA 19–20, and that he retaliated by “substantially exclud[ing]” her from the
process of interviewing prospective employees, JA 20.
When Roberts decided to give Back a promotion, he suggested she take a Principal Assistant
position, but Back responded that she did not want to accept a non-civil-service—a political—job.
Roberts then offered Back a civil-service position as a Branch Manager, but he soon changed his
mind because that position “required direct involvement with Deputy Director Schrader,” and he
told Back, “trust me, you don’t want” that position. JA 21. Roberts eventually appointed Back to
another civil-service position, that of Internal Policy Analyst III, and on September 1, 2004, Back
resigned from her old position in order to start her new one. Even after this change, Back continued
to clash with Schrader over his administration of federal grants.
Unfortunately for Back, Roberts left the agency in October 2004, and Keith Hall, a former
lobbyist, eventually replaced him as Executive Director. On the afternoon of January 19, 2005,
Schrader and Hall met with Back and handed her a letter terminating her employment.
On January 17, 2006, Back filed this lawsuit in the Eastern District of Kentucky against Hall,
Schrader, Alecia Webb-Edgington (Kentucky’s Director of Homeland Security) and the
Commonwealth of Kentucky, alleging that Hall and Schrader violated her First Amendment and
state-law rights by terminating her “by reason of her political affiliation as a Democrat” and “in
retaliation for her” vocal complaints of Schrader’s “use of partisan political considerations.” JA 23.
The district court dismissed Back’s suit against the Commonwealth and against Webb-
Edgington and dismissed Back’s state-law claims because she had failed to exhaust her
administrative remedies. At the same time, the court denied Hall’s and Schrader’s motions to
dismiss Back’s First Amendment claims. After the judge who was initially assigned the case
recused herself, Hall filed a motion to reconsider, and Schrader filed a motion for judgment on the
pleadings based on Garcetti v. Ceballos, 547 U.S. 410 (2006). Relying on Garcetti, the district court
Nos. 07-5934/5935 Back v. Hall et al. Page 3
dismissed Back’s freedom-of-speech claims, holding that Back’s complaints “were made pursuant
to the duties of her position” and were “therefore unprotected as a matter of law.” JA 31. But the
court denied the defendants’ request for qualified immunity on Back’s political-affiliation claims,
holding that Back had adequately alleged a clearly established constitutional violation. The
defendants appealed.
II.
Interlocutory appeals normally fall outside our reach, but because Hall and Schrader seek
review of “an order rejecting the defense of qualified immunity,” that denial is “a ‘final’ judgment
subject to immediate appeal.” Behrens v. Pelletier, 516 U.S. 299, 307 (1996). That we give
expedited review to qualified-immunity claims, however, does not mean that we give more exacting
review to those claims. Just as we gauge other pleading-stage dismissals to determine only whether
the complaint states a claim upon which relief can be granted, see Fed. R. Civ. P. 12(b)(6), so we
review an assertion of qualified immunity to determine only whether the complaint “adequately
alleges the commission of acts that violated clearly established law,” Mitchell v. Forsyth, 472 U.S.
511, 526 (1985); see also Skousen v. Brighton High Sch., 305 F.3d 520, 527 (6th Cir. 2002). The
Federal Rules of Civil Procedure require pleadings to set forth “a short and plain statement showing
that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a), and nothing about the defense of qualified
immunity alters this modest pleading requirement, see Goad v. Mitchell, 297 F.3d 497, 503 (6th Cir.
2002).
Measured by this yardstick, Back’s political-affiliation allegations suffice, and neither Hall
nor Schrader is entitled to qualified immunity at this early stage of the case. Taking the complaint’s
allegations at their word, we look to whether any constitutional right was violated and to whether
that right was clearly established. Saucier v. Katz, 533 U.S. 194, 200–01 (2001). Back alleges that
she was a civil-service employee and that her supervisors fired her “because of” and “by reason of
her political affiliation as a Democrat.” JA 23. These allegations clear both of Saucier’s hurdles:
They adequately plead a constitutional violation—one that has been clearly established for some
time.
As to the first hurdle, current and aspiring public employees have the First Amendment right
to be free from hiring and firing practices based on political affiliation unless “the hiring authority
can demonstrate that party affiliation is an appropriate requirement for the effective performance of
the public office involved.” Branti v. Finkel, 445 U.S. 507, 518 (1980); see also Elrod v. Burns, 427
U.S. 347, 355 (1976) (plurality opinion); id. at 375 (Stewart, J., concurring); Rutan v. Republican
Party of Ill., 497 U.S. 62, 79 (1990) (holding that Elrod and Branti apply to government promotion
and hiring practices as well as to firing practices). To determine whether occupants of (or applicants
for) a particular office are protected from political retaliation under Branti, we “examine the inherent
duties of that position,” Cope v. Heltsley, 128 F.3d 452, 460 (6th Cir. 1997) (internal quotation
marks omitted), and positions that exercise “no discretion of political significance” are generally
entitled to First Amendment protection, McCloud v. Testa, 97 F.3d 1536, 1559 (6th Cir. 1996).
So far as this complaint is concerned, Back’s former position falls within the category of
offices for which political affiliation is irrelevant. According to the complaint, Back set up the
process for evaluating grant applications, performed other administrative tasks and assisted the
grant- review committee. The Kentucky legislature also seems to believe that political affiliation
is not relevant to those duties: Back’s position was classified under Kentucky’s civil-service statute,
see Ky. Rev. Stat. Ann. § 18A.115 (exempting certain state employment offices, though not Back’s
position, from coverage), and Kentucky law says that “[n]o person shall be appointed or promoted
to, or demoted or dismissed from” such classified positions based on “political . . . affiliations,” id.
§ 18A.140(1). We have long given presumptive deference to a state legislature’s determination that
a position “should be classified as . . . nonpolitical,” Rice v. Ohio Dep’t of Transp., 14 F.3d 1133,
Nos. 07-5934/5935 Back v. Hall et al. Page 4
1143 (6th Cir. 1994), and, at least at this stage of the proceedings, the administrators have given us
no reason to second guess that body’s judgment. Nor has Hall or Schrader identified any component
of Back’s job description for which political ideology bears on “the effective performance of [her]
office.” Branti, 445 U.S. at 518. Back’s complaint, in short, alleges a cognizable First Amendment
claim.
As to the second hurdle, Back’s right to be free from termination based on her political
affiliation was “clearly established . . . in a particularized sense” such that no “reasonable official
in the [administrators’] position could have believed [such] conduct was lawful.” Cope, 128 F.3d
at 458–59 (internal quotation marks omitted). As of the date of Back’s termination, Sixth Circuit
precedent established at the least that an administrative employee like Back, who “simply perform[s]
functions over which he or she has no discretion, or no discretion of political significance,” is
entitled to First Amendment protection. McCloud, 97 F.3d at 1559 (affirming the denial of qualified
immunity regarding the firing of various mid-level administrators); see also Caudill v. Hollan, 431
F.3d 900, 909–10 (6th Cir. 2005) (holding that deputy clerks who perform “essentially clerical”
tasks were protected). Back has therefore met her pleading-stage burden and “allege[d] the
commission of acts that violated clearly established law.” Mitchell, 472 U.S. at 526.
The defendants’ attempt to muddy these waters is not persuasive. They argue that any
constitutional protection Back enjoyed could not have been clearly established because, as in Cope,
“there was no published decision . . . holding that political compatibility is not . . . an appropriate
requirement for [her former] position.” 128 F.3d at 460 (internal quotation marks omitted). In one
sense, they are right. Neither we nor the Supreme Court has ever held that the Internal Policy
Analyst III job in the Kentucky Office of Homeland Security is a nonpolitical job.
But in a more fundamental way, they are wrong. The absence of such a precise holding does
not prevent the relevant law from being clearly established, even in the particularized sense that our
case law requires. We have previously rejected “the notion that there must be a separate patronage
dismissal decision . . . involving a particular position before qualified immunity can be denied.”
McCloud, 97 F.3d at 1556.
Nor is Cope to the contrary. It dealt with deputy county clerks who were not protected by
the civil service system, see 128 F.3d at 460, and therefore a precise holding was needed to rebut
the presumption that unclassified positions fall within the Branti exception for political positions,
see id. at 459; see also McCloud, 97 F.3d at 1542 (interpreting Rice to mean that the Branti
exception “is to be construed broadly, so as presumptively to encompass positions placed by the
legislature outside of the ‘merit’ civil service”).
In fighting this distinction, the supervisors point to Back’s probationary status, see Ky. Rev.
Stat. Ann. § 18A.111, and to the fact that the Kentucky Supreme Court once said (in dicta and not
in the context of a First Amendment case) that probationary employees could be fired “for any
reason, political or otherwise,” Miracle v. Gable, 452 S.W.2d 399, 400 (Ky. 1970). A reasonable
officer, they claim, could thus believe that Back was not protected from a patronage dismissal. But
Miracle did not interpret the civil-service statute governing Back’s employment (it interpreted a no-
longer-governing Personnel Department Rule), see id., and the current statute protects even
probationary employees from discrimination on the basis of political affiliation, see Ky. Rev. Stat.
Ann. § 18A.111(1) (allowing probationary employees to appeal “as provided by KRS 18A.095”);
id. § 18A.095(15)(a) (allowing administrative appeals based on “discriminat[ion]”); id. § 18A.140(1)
(prohibiting political discrimination). The Branti exception, moreover, turns on whether a particular
“position” may be deemed political, 445 U.S. at 518 (emphasis added), which we determine by
looking to its “inherent duties,” Cope, 128 F.3d at 460, not to the employee’s tenure in that job or
to her right to that job’s continued existence, cf. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 283–84 (1977) (“Even though [a non-tenured teacher] could have been discharged for
Nos. 07-5934/5935 Back v. Hall et al. Page 5
no reason . . . he may nonetheless establish a claim to reinstatement if the decision . . . was made by
reason of his exercise of constitutionally protected First Amendment freedoms.”). It may well be
that a probationary employee, like an at-will employee, may be fired for no reason or most any
reason; she just cannot be fired for “an unconstitutional reason.” See Morris v. Crow, 142 F.3d
1379, 1381 (11th Cir. 1998).
Hall and Schrader separately argue that Back has failed to establish a prima facie case of
political-affiliation dismissal. Were this appeal before us in the context of the denial of a summary
judgment motion, we might entertain their argument. But it is not. Because we are at the pleading
stage of this case, and because there is no “heightened pleading requirement . . . for civil rights
plaintiffs in cases in which the defendant raises the affirmative defense of qualified immunity,”
Goad, 297 F.3d at 503; see also Crawford-El v. Britton, 523 U.S. 574, 589 (1998), Back was not
required to plead her prima facie case, cf. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002)
(holding in a Title VII case that “it is not appropriate to require a plaintiff to plead facts establishing
a prima facie case because the McDonnell Douglas framework does not apply” when there is “direct
evidence of discrimination”). It sufficed to allege that she was fired because of her political
affiliation in violation of the First Amendment.
Hall and Schrader protest that Back’s allegation that she was terminated “because of her
political affiliation,” JA 23, is conclusory. But as the Supreme Court has recently made clear, the
conclusory nature of particular allegations cannot alone justify dismissing a complaint. See Erickson
v. Pardus, ___ U.S. ___, 127 S. Ct. 2197, 2200 (2007). Eventually, Back will need to establish with
evidence that her Democratic affiliation was a “substantial” or “motivating” factor in each
administrator’s decision to terminate her. Mt. Healthy, 429 U.S. at 287; see also Conklin v. Lovely,
834 F.2d 543, 546–47 (6th Cir. 1987) (applying Mt. Healthy’s “substantial” or “motivating” factor
test to patronage dismissal claims). And if she meets that burden, then the defendants will need to
show that they would have fired her anyway, even if she were a Republican. Mt. Healthy, 429 U.S.
at 287. But for now, at the pleading stage, it suffices that Back alleged that she “was terminated by
defendants Hall and Schrader by reason of her political affiliation as a Democrat.” JA 23.
III.
For these reasons, we affirm.