INDEX OF PUBLIC RECORDS

172 F3d 873, CA 6 (Tenn.) 1999
Sharpe, et al v Cureton, et al

Unpublished Disposition
NOTICE: THIS IS AN UNPUBLISHED OPINION.

(The Court's decision is referenced in a "Table of Decisions Without Reported Opinions" appearing in the Federal Reporter. Use FI CTA6 Rule 28 and FI CTA6 lOP 206 for rules regarding the citation of unpublished opinions.)

On Appeal from the United States District Court for the Eastern District of Tennessee.

Before NELSON, SUHRHEINRICH, and MOORE, Circuit Judges.

NELSON, Circuit Judge.

*'1 This is an interlocutory appeal from an order denying qualified immunity to the mayor and other officials of Knoxville, Tennessee. The order was entered in a civil rights action brought against the officials and the city by five Knoxville Fire Department employees who claim to have been retaliated against for failing to support the mayor In his 1995 reelection campaign. The alleged retaliation was said to have taken the form of (among other things) job transfers, denial of consideration for discretionary pay increases and bonuses, and the withholding of a promotion.

The case turns on the question whether, as of 1995, it was clearly established that retaliatory personnel actions of the type complained of here were sufficiently "adverse" to be actionable. Upon de novo review we conclude, as did the district court, that this question must be answered in the affirmative. The denial of qualified immunity will be affirmed.

The plaintiffs - Gary Sharpe, William Potter, Kenneth Scarbrough, Frank Potter, and William McGinnis - were employed, respectively, as Master Firefighter, Assistant Deputy Chief, Fire Officer, Administrative Deputy Chief of Firefighting, and Assistant Chief in the Knoxville Fire Department. In the mayoral election of 1995, defendant Victor Ashe, the incumbent, was challenged by Ivan Harmon, a city councilman. None of the plaintiffs supported Ashe, and several of them actively supported Harmon.

Ashe beat Harmon, and the alleged retaliation against the plaintiffs is said to have begun almost immediately after the results of the election became known. Scarbrough, Frank Potter, and McGinnis were summarily transferred from one fire station to another. Sharpe was denied a promotion. William Potter (Frank Potter's brother) was reassigned from an administrative position to a job for which he allegedly had no experience or training and in which he was required to work substantially longer hours with no increase in take-home pay. (He also lost the use of a city-owned car.) All of the plaintiffs claim that they were denied consideration for discretionary merit raises and/or bonuses.

Asserting violations of their First Amendment rights (including rights to freedom of speech and association), together with violations of the Fifth and Fourteenth Amendments and various provisions of state and local law, the plaintiffs brought suit in federal court. The individual defendants moved for summary judgment on qualified immunity grounds. The motions were denied, and this appeal followed.

To establish a retaliation claim, the plaintiffs must demonstrate the following: "

1. that the plaintiff[s] w[ere] engaged in a constitutionally protected activity;
2. that the defendant[s'] adverse action caused the plaintiff[s] to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that activity; and
3. that the adverse action was motivated at least in part as a response to the exercise of the plaintiff[s'] constitutional rights." Bioch v. Ribar, 156 F.3d 673, 678 (Cth Cir. 1998).

**2 As to element (1), it is clear that the piaintiffs' neutrality or support of Harmon had constitutional protection under the First Amendment. See Elrod v. Bums, 427 U.S, 347,356-57 (1976). As to element (3), the defendants acknowledge that we must assume, for purposes of this appeal, that the employment actions complained of were retaliatory. The controversy centers on element (2) - whether retaliatory job transfers and the like are sufficiently "adverse" to be prohibited by the First Amendment. In Rutan v. Republican Party of llfinois, 497 U.S. 62 (1990), the Supreme Court rejected a Seventh Circuit test under which politically motivated but non-retaliatory adverse employment decisions were held to pass First Amendment muster unless they constituted an outright dismissal or the "substantial equivalent of a dismissal."

The Seventh Circuit test was "unduly restrictive," in the Supreme Court's view, "because it fails to recognize theft there are deprivations less harsh than dismissal that nevertheless press state employees and applicants to conform their beliefs and associations to some state-selected orthodoxy." Id. at 75. Accordingly, the Supreme Court declared, "promotions, transfers, and recalls after layoffs based on political affiliation or support are an impermissible infringement on the First Amendment rights of public employees." Id.

Under Rutan, the allegedly retaliatory employment actions at issue in this case - transfer to unfamiliar fire stations, [FN1] loss of a promotion opportunity, reassignment to a position with lower hourly pay, and the denial of consideration for merit pay raises and bonuses - are clearly adverse enough to be actionable. They are sufficiently harsh, in other words, to "press state employees ... to conform their beliefs and associations" to the selected orthodoxy. One would have to be a person of more than ordinary firmness to be willing to pay the price allegedly exacted by the Ashe administration for the privilege of declining a place on the mayor's bandwagon.

FN1. We recognize that the fire department had ordered involuntary transfers in the past, but those transfers were based on staffing needs. The present transfers, we must assume at this stage of the proceedings, were retaliatory.

This does not end our inquiry, however. Notwithstanding that they may have violated the plaintiffs' First Amendment rights, the individual defendants would still be entitled to qualified immunity from suit if "their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635,638 (1987). The plaintiffs cannot defeat the defendants' claim of qualified immunity unless the plaintiffs' rights were "clearly established" in a relatively "particularized" sense. Id. at 640. "Tile contours of the right must be sufficiently clear," in other words, "that a reasonable official would understand that what he is doing violates that right." Id.

The defendants argue that they are entitled to qualified immunity, notwithstanding any violation of the plaintiffs' First Amendment rights, "because reasonable officials in defendants' respective positions could have believed their actions lawful under the specific facts and circumstances known to them." We disagree.

**3 The "specific facts and circumstances" known to the defendants, ex hypothesi, included knowledge that the transfers and other adverse employment actions of which the plaintiffs complain were retaliatory in nature. Yet as early as 1982, the Seventh Circuit's Rutan panel noted, it had been held that "even an act of retaliation as trivial as failing to hold a birthday party for a public employee could be actionable when intended to punish her for exercising her free speech rights." Rutan v, Repubfican Party of INnois, 868 F.2d 943,954 n. 4 (7th Cir. 1989), citing Bart v. Telford, 677 F.2d 622 (7th Cir.1982).

Rutan itself was not a retaliation case, of course, but the Supreme Court's Rutan opinion gave this endorsement to the Seventh Circuit's dictum on retaliation: "[T] he First Amendment, as the court below noted, already protects state employees not only from patronage dismissals but also from 'even an act of retaliation as trivial as failing to hold a birthday party for a public employee ... when intended to punish her for exercising her free speech rights." ' Rutan, 497 U.S. 62, 75 n 8 (emphasis supplied).

The Supreme Court's opinion in Rutan had been in the public domain for five years by the time of the acts complained of here, while our court's opinion in Bioch, 156 F.3d 673 - an opinion in which we adopted the "person of ordinary firmness" test - was still three years in the future. The defendants have never given a satisfactory answer to the question of how a reasonable official could read the Supreme Court's opinion in Rutan, including footnote 8, and still consider it constitutional to punish the plaintiffs in the manner the plaintiffs claim to have been punished for exercising their free speech rights.

Accordingly, and for substantially all of the reasons given by the district court in its memorandum opinion of November 13, 1997, the order denying the individual defendants' claim of qualified immunity is AFFIRMED.

C.A.6.Tenn., 1999. Sharpe v. Cureton

NOTE--
SANCTIONS WERE ADDED LATER BY THE JUDGE AFTER VICTOR ASHE AND MIKE KELLY, LAW DIRECTOR, BRAGGED ON TV NEWS THAT THEY WON THIS CASE. THE JUDGE THEN AWARDED PUNITIVE DAMAGES AND PAID ATTORNEY FEES.