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«IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS E. JEANNE DRAKE, ) ) Plaintiff, ) CIVIL ACTION ) v. ) No. 08-1362-MLB-KMH ) ARLIS JON ...»

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Sullivan, 526 U.S. 40, 49-50 (1999). There is no dispute that defendants were acting under color of state law.

A. Eleventh Amendment Immunity Drake brings claims against Wuthnow in both his official and individual capacities. Wuthnow responds that he is immune under the Eleventh Amendment from liability for damages in an action brought against him in his official capacity.

“The Eleventh Amendment provides: ‘The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.’” U.S. Const. Amend. 11; Meade v. Grubbs, 841 F.2d 1512, 1524

-25 (10th Cir. 1988). The Eleventh Amendment also bars suits against the state, its agencies, and officers acting in their official capacities from the state’s own citizens. Meade, 841 F.2d at 1525.

Wuthnow is either a Kansas officer, and immune from suit under the Eleventh Amendment, or a Harvey County officer. Drake has also sued the Board. Even if Wuthnow could be sued in his official capacity, Drake’s claims against Wuthnow are redundant to her claims against the Board. See Moore v. Board of County Com'rs of County of Leavenworth, 470 F. Supp. 2d 1237, 1256 (D. Kan. 2007) (stating that the official capacity claims against the sheriff were actually claims

-9Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 10 of 32 against the County itself). Therefore, the court need not decide the issue regarding Eleventh Amendment immunity and Wuthnow is entitled to summary judgment on Drake’s claims against him in his official capacity.

B. Qualified Immunity While § 1983 permits the possible vindication of a plaintiff’s rights, non-meritorious suits exact a high cost upon society and law enforcement personnel. See Anderson, 483 U.S. at 638. Indeed, the Supreme Court and the Tenth Circuit have recognized these suits may unduly interfere with the discharge of discretionary duties due to the constant fear civil litigation and potential monetary damages. See Harlowe v. Fitzgerald, 457 U.S. 800, 814 (1982); Wilson v. Stock, 52 F.3d 1547, 1552 (10th Cir. 1995). “[T]o submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.” Horstkoetter v. Department of Public Safety, 159 F.3d 1265, 1277 (10th Cir. 1998) (internal quotations omitted) (citing Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.

1949)).

In order to balance these competing interests, government officials performing discretionary duties are afforded qualified immunity shielding them from civil damages liability. Pearson v.

Callahan, 129 S. Ct. 808, 815, 172 L. Ed.2d 565 (2009). Qualified immunity protects these officials unless their conduct “violate[s] clearly established statutory or constitutional rights of which a reasonable person would have known.” Id.; Baptiste v. J.C. Penney

-10Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 11 of 32 Co., Inc., 147 F.3d 1252, 1255 (10th Cir. 1998). The defense not only provides immunity from monetary liability, but perhaps more importantly, from suit as well.4 See Horstkoetter, 159 F.3d at 1277.

When a defendant claims qualified immunity, the plaintiff bears the burden of (1) coming forward with sufficient facts to show that the defendant’s actions violated a constitutional right and (2) demonstrating the right allegedly violated was “clearly established” at the time the conduct occurred. Pearson, 129 S. Ct. at 815-6. As noted in Pearson, courts are no longer required to follow the two-step sequence mandated by Saucier v. Katz, 533 U.S. 194 (2001). Id. at 818. “The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Id. The court will first address the clearly established prong.

1. Violation of Constitutional Right To determine whether plaintiff has sufficiently shown the violation of a constitutional right at all, this court must determine whether plaintiff’s allegations, if true, state a claim for a violation of a constitutional right. See Romero, 45 F.3d at 1475 (relying in part upon Siegert v. Gilley, 500 U.S. 226, 231-32 (1991)).

Determining whether a plaintiff has stated a claim for a One of the purposes of qualified immunity is to “protect public officials from the ‘broad-ranging discovery’ that can be peculiarly disruptive of effective government.” Anderson, 483 U.S. at 646 n.6.

–  –  –

question.5 constitutional violation is purely a legal See id.

Despite the inevitable factual issues that become intertwined in the characterization of a plaintiff’s precise constitutional claims, this court cannot avoid the legal issue by simply framing it as a factual question. See Archer v. Sanchez, 933 F.2d 1526, 1530 n.7 (10th Cir.

1991).

a. First Amendment The parties’ memoranda address two separate claims under the First Amendment: 1) retaliation based on freedom of speech and 2) retaliation based on freedom of association.





Freedom of Speech The general rule is that government officials cannot lawfully limit their employees’ speech on matters of public concern unless specific circumstances are met. See Brammer-Hoelter v. Twin Peaks Charter Academy, 492 F.3d 1192, 1202 (10th Cir. 2007) (“[W]hen government employees speak on matters of public concern, ‘they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.’”).

After the Supreme Court's recent decision in Garcetti v.

Ceballos, 547 U.S. 410 (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. First, the court must determine whether the employee speaks “pursuant to [her] official duties.” If the employee speaks pursuant to [her] official duties, then there is no constitutional protection because the restriction on speech “simply reflects the exercise of employer control over what the employer itself has commissioned or created.” Second, if an employee does Similarly, whether the right was clearly established at the time the incident occurred is also a legal question. See Romero, 45 F.3d at 1475 (relying in part upon Siegert v. Gilley, 500 U.S. 226, 231-32 (1991)).

-12Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 13 of 32 not speak pursuant to [her] official duties, but instead speaks as a citizen, the court must determine whether the subject of the speech is a matter of public concern. If the speech is not a matter of public concern, then the speech is unprotected and the inquiry ends. Third, if the employee speaks as a citizen on a matter of public concern, the court must determine “whether the employee's interest in commenting on the issue outweighs the interest of the state as employer.” Fourth, assuming the employee's interest outweighs that of the employer, the employee must show that [her] speech was a “substantial factor or a motivating factor in [a] detrimental employment decision.” Finally, if the employee establishes that [her] 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.” The first three steps are to be resolved by the district court, while the last two are ordinarily for the trier of fact.

Id. at 1202-03 (internal citations omitted).

Defendants do not contend that Drake was speaking pursuant to any official duty. The court will next consider whether Drake’s speech was a matter of public concern.

“Matters of public concern are ‘those of interest to the community, whether for social, political, or other reasons.’” Id. at

1205. The court may consider the speaker’s motive for making the speech, i.e. whether it is to alert others of a public matter or only relevant to the speaker.

Defendants contend that Drake’s refusal to sign Wuthnow’s petition was purely personal in nature and that Drake’s motive was to protect her own employment. Drake told Wuthnow that she would not sign his petition because she had to work for whomever was elected Sheriff.

“Courts have held that political speech regarding a public election is undoubtedly a matter of public concern.” Id. More important, courts have held that petition circulation is protected

-13Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 14 of 32 speech. Meyer v. Grant, 486 U.S. 414, 422, (1988) “[T]he circulation of a petition involves the type of interactive communication concerning political change that is appropriately described as ‘core political speech.’” Id.

The court finds that Drake’s refusal to sign Wuthnow’s petition did touch on matters of public concern. It is true that Drake was partly motivated in making the speech by her own personal agenda of keeping her employment. Nonetheless, Drake was also making a public statement that she would not openly support Wuthnow in the primary election. Drake knew Wuthnow would file his petition and further that her signature would be evidence of her support for Wuthnow. This public display of political support is precisely what Drake wanted to avoid. Drake’s First Amendment right includes a refusal to support a candidate and her refusal of to sign Wuthnow’s petition is protected speech. See Aiken v. Rio Arriba Bd. of County Com'rs, 134 F. Supp.2d 1216, 1225 (D. N.M. 2000) (“[R]efusal to participate in an allegedly politically-motivated campaign is an act of speech, just as much as participating in such a campaign is[.]”).

The court next considers "whether the employee's interest in commenting on the issue outweighs the interest of the state as employer." Brammer-Hoelter, 492 F.3d at 1202-03.

Defendants have made no claim that Drake’s refusal to sign Wuthnow’s petition harms any interest that defendants may have.

Drake’s employment does not require political allegiance. The court will not speculate as to what interests, if any, might be harmed as a result of Drake’s refusal.

The fourth and fifth steps under the "Garcetti/Pickering"

-14Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 15 of 32 analysis are ordinarily questions of fact. Drake must present evidence that her speech was a substantial factor in Wuthnow’s decision to terminate her employment. If so, than Wuthnow may demonstrate that he would have fired Drake even in the absence of the protected speech.

“What constitutes a substantial motivating factor evades precise definition.” Maestas v. Segura, 416 F.3d 1182, 1188 (10th Cir. 2005).

However, Drake is required to show that her refusal played a substantial part in Wuthnow’s decision to terminate her employment.

See Id. (stating that the speech does not have to be the sole reason or proximate cause of the adverse action).

The Tenth Circuit has explained the evidence that is required to create a factual dispute regarding a substantial or motivating factor. “Adverse action in close proximity to protected speech may warrant an inference of retaliatory motive.” Maestas, 416 F.3d at 1189 (citing Baca v. Sklar, 398 F.3d 1210, 1221 (10th Cir. 2005)). However, even temporal proximity is “insufficient, without more, to establish such speech as a substantial motivating factor in an adverse employment decision.” Id. (citations omitted).

An employer's knowledge of protected activity, “together with close temporal proximity” between the protected activity and the adverse employment action, “may be sufficiently probative of causation to withstand summary judgment.” Maestas, 416 F.3d at 1189. In contrast, “evidence such as a long delay between the employee's speech and challenged conduct” or evidence of “intervening events” tend to “undermine any inference of retaliatory motive and weaken the causal link.” Id.

Underwood v. Board of County Com'rs of County of Jefferson, 611 F.

Supp.2d 1223, 1229-30 (W.D. Okla. 2009).

Defendants contend that Drake’s refusal to sign the petition and Wuthnow’s comment regarding the sign in Drake’s sister’s yard were too remote in time to establish any causal connection to her termination.

In January 2008, Wuthnow twice asked Drake to sign his petition and

-15Case 6:08-cv-01362-MLB Document 41 Filed 05/10/10 Page 16 of 32 Drake refused. Drake was terminated approximately seven months later on August 18. Drake does not allege that Wuthnow made any other comments or actions regarding Drake’s refusal to sign his petition during these seven months.

In June 2008, Wuthnow asked Drake if her sister was mad at him because of the sign in her yard. The sign was in Drake’s sister yard.

Drake’s response was that her sister would also put one of his signs in her yard.

The court finds that Drake made no protected speech at this time.

The sign belonged to Drake’s sister’s and was her political speech.

Drake’s response to Wuthnow’s question was not a matter of public concern because Drake was simply commenting on what her sister might do. Drake took no political stance on either candidate. Nor did Drake’s response constitute nonpolitical affiliation. As a result, the June 2008 incident involving Drake’s sister’s sign has no bearing on the court’s causal connection analysis. See Brammer-Hoelter, 492 F.3d at 1202-03 (“If the speech is not a matter of public concern, then the speech is unprotected and the inquiry ends.”).

The court finds that Drake’s refusal to sign Wuthnow’s petition, occurring seven months prior to Drake’s termination, weakens the causal connection. However, the court takes note of the fact that Drake’s termination occurred soon after Wuthnow lost the primary election.

Wuthnow lost on August 5. Drake worked August 6 and 7. Drake stated in her deposition that on August 6, Wuthnow walked down the hall and said “[t]his must be what everybody must have wanted.” (Doc.

33-3 at 2). She left for vacation on August 8 and returned to work



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