                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                       File Name: 05a0325p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                          X
                                     Plaintiff-Appellee, -
 STEVEN L. SIMASKO,
                                                           -
                                                           -
                                                           -
                                                               No. 04-2292
            v.
                                                           ,
                                                            >
 COUNTY OF ST. CLAIR, a Municipal Corporation,             -
                                             Defendant, -
                                                           -
                                                           -
 capacity as St. Clair County Prosecutor; MARY ROY -
 PETER R. GEORGE, individually and in his official
                                                           -
                                                           -
 KELLY, jointly and severally,
                                Defendants-Appellants. -
                                                          N
                           Appeal from the United States District Court
                          for the Eastern District of Michigan at Detroit.
                       No. 03-73145—Bernard A. Friedman, District Judge.
                                     Argued: April 19, 2005
                               Decided and Filed: August 3, 2005
              Before: BOGGS, Chief Judge; RYAN and ROGERS, Circuit Judges.
                                       _________________
                                           COUNSEL
ARGUED: William L. Fealko, FLETCHER CLARK TOMLINSON FEALKO & MONAGHAN,
P.C., Port Huron, Michigan, for Appellants. Kathleen L. Bogas, EISENBERG & BOGAS, P.C.,
Bloomfield Hills, Michigan, for Appellee. ON BRIEF: William L. Fealko, Gary A. Fletcher,
FLETCHER CLARK TOMLINSON FEALKO & MONAGHAN, P.C., Port Huron, Michigan, for
Appellants. Kathleen L. Bogas, EISENBERG & BOGAS, P.C., Bloomfield Hills, Michigan, for
Appellee.
                                       _________________
                                           OPINION
                                       _________________
       ROGERS, Circuit Judge. The defendants appeal the district court’s denial of their motion
for summary judgment based on a defense of qualified immunity in this 42 U.S.C. § 1983 action.
Because the defendants’ actions in this case did not violate the Constitution, the denial of summary
judgment is reversed.



                                                 1
No. 04-2292               Simasko v. County of St. Clair, et al.                                                 Page 2


I. Background
       The plaintiff, Steven Simasko, worked for eighteen years as an assistant prosecutor for St.
Clair County, Michigan. During all times relevant to this case, defendant Peter George was the
county attorney for St. Clair County and defendant Mary Kelly was the chief assistant prosecutor,
appointed by Peter George. As the chief assistant prosecutor, Kelly was Simasko’s co-worker and
immediate supervisor.
        In 2002, Simasko and Kelly both announced their intention to run for a judicial vacancy in
the 72nd Michigan Judicial District Court in St. Clair County. George supported Kelly in the race.
After the primary, Kelly was one of the top-two vote getters, while Simasko was not. Upon learning
of Simasko’s defeat, Kelly telephoned Simasko and asked if he would publicly support her in the
election. Kelly testified that Simasko answered “something to the effect he didn’t have a dog in the
race, he was just tired and he just needed to sit back and not do anything.” Kelly asked Simasko for
his support a second time, this time at the office. During this second solicitation, Kelly informed
Simasko that she was displeased with his brother’s support of her opponent in the election. Simasko
claims that Kelly told him that if his brother continued to support her opponent, she would expect
Simasko to support her campaign publicly. Simasko also claims that Kelly asked “does he
[Simasko’s brother] realize what’s going to happen to his practice?” Simasko’s brother is an
attorney with a local practice in St. Clair County. In response, Simasko again told Kelly that he did
not wish to support either candidate in the race. As Kelly left Simasko’s office, Simasko claims that
Kelly told him “this won’t be a nice place for you to work.”
        Simasko was later approached by another co-worker, Senior Assistant Prosecutor Joe
McCarthy, about the Kelly campaign. McCarthy allegedly told Simasko that he needed to curtail
his brother’s support of Kelly’s campaign, reminded Simasko that Kelly was his supervisor, and
asked whether Simasko’s brother knew the ramifications of his actions. Simasko again reiterated
that he did not wish to take a position in the election.
        In November of 2002, Kelly learned that she had lost the election for district court judge to
her opponent. After learning of this loss, Kelly told a group of people that “that fucking Simasko
is done.”
         On December 4, 2002, Simasko met with Kelly and George, the County Attorney, for an
annual performance evaluation. Simasko claims that this was the first occasion in his eighteen years
of working at the office that he had been subjected to a substantive performance evaluation. During
the evaluation, George and1Kelly complained that they were unhappy with Simasko’s performance
on several cases that year. Soon thereafter, Simasko was told by George that he was “strongly
considering” demoting him and decreasing his salary by approximately $20,000. Simasko claims
that, after learning of the possible demotion, he wrote to George and informed him that, should
George decide to go through with the demotion, Simasko would treat the action as a constructive
discharge pursuant to a collective bargaining agreement between the parties. In response, George
informed Simasko that he did intend to go through with the demotion. Simasko then wrote a second
letter to George, again stating that Simasko found the pay decrease to be unacceptable and that he
was treating the action as a constructive discharge. Simasko subsequently resigned from his position
with the county.



         1
           Although both Simasko’s and the defendants’ briefs go into great detail about whether Simasko’s alleged
mishandling of cases resulted in his demotion, such an inquiry is unnecessary since, for purposes of this appeal, we must
take Simasko’s version of the facts as true—i.e., that he was fired as a result of his refusal to support Kelly’s campaign
and as a result of his brother’s support of Kelly’s opponent.
No. 04-2292           Simasko v. County of St. Clair, et al.                                   Page 3


        After resigning from his position, Simasko brought suit pursuant to 42 U.S.C. § 1983,
alleging that he was constructively discharged in retaliation for the exercise of his First Amendment
rights of free speech and association. The defendants claim that they were entitled to fire Simasko
based upon his refusal to participate in Kelly’s campaign because Simasko is a policymaking
employee subject to the Elrod/Branti exception, which allows public employees in policymaking
positions to be fired for their political or policy views without violating the First Amendment. See
Elrod v. Burns, 427 U.S. 347 (1976); Branti v. Finkel, 445 U.S. 507 (1980). The district court,
however, found that the Elrod/Branti exception did not apply “in this particular case, to this
particular plaintiff” because Simasko did not engage in “any overt speech or political activity,” but
rather simply refused to act or support a particular candidate. The district court accordingly denied
the defendants’ motion for summary judgment based on a defense of qualified immunity.
II. Analysis
        The defendants’ actions leading to Simasko’s termination did not violate the Constitution;
thus, the defendants are entitled to qualified immunity and the denial of summary judgment is
reversed.
        The doctrine of qualified immunity protects government officials who perform discretionary
functions from civil liability “insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). A denial of summary judgment based on a determination that the defendant
is not entitled to qualified immunity may be reviewed on interlocutory appeal. Solomon v. Auburn
Hills Police Dept., 389 F.3d 167, 172 (6th Cir. 2004). Because the availability of qualified
immunity is a legal question, the decision of the district court is reviewed de novo. Id. (citation
omitted). “[T]o the extent that there is disagreement about the facts . . . we must review the evidence
in the light most favorable to the Plaintiffs, taking all inferences in their favor.” Champion v.
Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir. 2004).
        In determining whether a grant of qualified immunity is proper, we determine first whether,
based upon the applicable law, the facts viewed in the light most favorable to the plaintiffs show that
a constitutional violation has occurred. Saucier v. Katz, 533 U.S. 194, 201 (2001). In this case, the
defendants’ actions did not violate the Constitution, and accordingly we need not reach the
remaining elements of the test for qualified immunity.
        Simasko was allegedly fired for refusing to support the campaign of his supervisor for a
district court judgeship, and for refusing to try to curtail his brother’s public support of his
supervisor’s opponent in the election. Because Simasko’s job as an assistant county attorney
qualified as a policymaking position subject to the Elrod/Branti exception, he could be fired for his
political or policy views without violating the First Amendment. Accordingly, the defendants are
entitled to qualified immunity.
A. Simasko’s Decision to Remain Neutral in the Campaign
        The defendants’ constructive discharge of Simasko based on his decision to remain neutral
in Kelly’s campaign for judge, however misguided and vindictive that action may have been, did
not violate the Constitution. While the First Amendment prohibits the politically-motivated
dismissal of many governmental employees, the Supreme Court recognized in Elrod, 427 U.S. at
367-68 (1976) (plurality opinion), and in Branti, 445 U.S. at 517-18 (1980), that public employees
in “policymaking or confidential positions” may be terminated for politically-motivated reasons
without violating the First Amendment. The Elrod/Branti exception applies not only to discharges
based on political affiliation, but also to terminations based on actual speech. See Rose v. Stephens,
291 F.3d 917, 921 (6th Cir. 2002). Furthermore, the Elrod/Branti exception has been interpreted
No. 04-2292           Simasko v. County of St. Clair, et al.                                    Page 4


to permit a hiring authority to terminate a policymaking or confidential employee based on “political
differences of any kind.” Williams v. City of River Rouge, 909 F.2d 151, 153 n.4 (6th Cir. 1990).
          In this case, Simasko was employed in a policymaking or confidential position. In Branti,
the Court elaborated on the “policymaking or confidential” requirement, stating that “the ultimate
inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the
question is whether the hiring authority can demonstrate that party affiliation is an appropriate
requirement for the effective performance of the public office involved.” 445 U.S. at 518. In Monks
v. Marlinga, 923 F.2d 423, 426 (6th Cir. 1991), we held that an assistant county prosecutor is
properly considered a policymaking or confidential employee under Michigan law and that political
affiliation is an appropriate consideration in the discharge of such an employee.
         Simasko argues that his termination does not fall within the Elrod/Branti exception because
he did not actively oppose his supervisor in her race for a district court judgeship, but instead only
remained neutral in the election. This argument lacks merit. The government has an important
interest in securing employees who will loyally implement the policies of its democratically elected
officials. The Supreme Court has found force in the argument that politically loyal employees are
necessary “to the end that representative government not be undercut by tactics obstructing the
implementation of policies of the . . . administration, policies presumably sanctioned by the
electorate.” Elrod, 427 U.S. at 367 (plurality opinion). Our court, moreover, has indicated that “the
government’s interest in appointing politically loyal employees to certain positions converges with
its interest in operating an efficient workplace when dealing with policymaking employees because
loyalty by those employees is an essential requirement for the efficient functioning of the
workplace.” Rose, 291 F.3d at 923. In this case, George supported Kelly, Simasko’s supervisor,
in her campaign for a district court judgeship. Simasko’s decision not to support George’s choice
for the district court judgeship election was sufficient to implicate loyalty concerns that could have
caused George to lose confidence in Simasko. As we recognized in Latham v. Office of Att’y Gen.
of State of Ohio, 395 F.3d 261, 266-67 (6th Cir. 2005), the mere fact that an employee is affiliated
with an opposing political party, however quietly, can cause the employer not to trust the employee
to implement fully the employer’s practices. Accordingly, because Simasko was a policymaking
or confidential employee, the defendants’ constructive discharge of Simasko based on his failure to
support Kelly’s campaign did not violate the Constitution.
         This conclusion is supported by the Seventh Circuit’s holding in Dimmig v. Wahl, 983 F.2d
86 (7th Cir. 1993). In that case, a probationary deputy sheriff was fired after he refused to comply
with a policy requiring all probationary employees to participate in the sheriff’s campaign for re-
election. Id. at 86. The deputy sheriff filed suit alleging that the termination, and the policy itself,
violated his First Amendment rights. Id. Although the court had previously held that a deputy
sheriff was properly labeled a policymaking or confidential employee, the deputy argued that
political neutrality was not a proper basis for his termination because it “did not affect his loyalty
or ability to enforce the law . . . as his employer saw fit.” Id. at 87. The court rejected the deputy’s
argument, however, and held that, because the sheriff used “political considerations in deciding that
[the deputy’s] refusal to campaign on his behalf could hinder the effective performance of the
department,” the termination did not violate the Constitution. Id. See also Mitchell v. Thompson,
18 F.3d 425, 426-27 (7th Cir. 1994) (holding that defendants were entitled to qualified immunity
for demoting deputy sheriff based on his decision to remain neutral during the sheriff’s re-election
campaign).
        While this court has recognized that terminating employees based solely on their political
beliefs may seem “draconian at first glance,” such a result is less troubling when one recalls that,
pursuant to the Elrod/Branti exception, a policymaking employee can be fired simply for supporting
a political party different from that of his employer, even if that employee never evidences any
policy disagreement with his employer. Latham, 395 F.3d at 266-67; see also Williams, 909 F.2d
No. 04-2292           Simasko v. County of St. Clair, et al.                                   Page 5


at 153 n.4 (stating that the reasoning for the Elrod/Branti exception has been “understood to apply
to political differences of any kind”). The defendants’ actions leading to the termination of Simasko
based on his decision to remain neutral in Kelly’s campaign for judge did not violate the First
Amendment, and the defendants are entitled to qualified immunity on that claim.
B. Simasko’s Failure to Prohibit His Brother’s Support of Kelly’s Opponent
        Simasko also claims that his constructive discharge was a result of his brother’s public
support for Kelly’s opponent in the judicial race, in violation of Simasko’s First Amendment right
to freedom of association. This contention fails upon close examination of the nature of the claim.
Simasko does not claim that he was fired because he and his brother were brothers, something
obviously not within Simasko’s power to change. Instead, the claim is perforce that Simasko was
fired because of his brotherly association with a supporter of Kelly’s opponent. To the extent that
this claim implicates Simasko’s First Amendment rights (as opposed to those of his brother), the
claim is properly characterized as one based on Simasko’s association (perhaps even a refusal to
break off an association) with the supporter of a political opponent. Such an association is covered
by the Elrod/Branti exception.
        In Sowards v. Loudon County, 203 F.3d 426 (6th Cir. 2000), this court indicated, albeit in
dictum, that the Elrod/Branti exception permits hiring authorities to terminate policymaking or
confidential employees for their association with political opponents without violating the First
Amendment. In Sowards, a jailer alleged that she was terminated after her husband ran and lost the
election for sheriff of the county, and that the termination violated her First Amendment rights to
intimate and political association. Id. at 432. The defendants in the case claimed that, even if the
jailer were able to show that she was fired because of her political association with her husband, the
termination was justified because the position of jailer should be considered a policymaking position
for which political affiliation is an appropriate consideration. Id. at 435. Although the court found
that the position of jailer was not a policymaking position, id. at 438, we indicated that if an
employee is in a policymaking position, “then political affiliation is an appropriate consideration for
that position and a public employee may be dismissed without violating the First Amendment.” Id.
at 436. Accordingly, because Simasko is a policymaking employee, the defendants’ constructive
discharge of Simasko based on Simako’s affiliation with his brother’s political activities did not
violate the Constitution.
        Furthermore, Simasko’s termination was based not just on his affiliation with his brother,
but also on Simasko’s failure even to attempt to curtail his brother’s public support of Kelly’s
opponent in the campaign. The failure of Simasko to comply with the political wishes of Kelly, his
supervisor, and his failure to try to prevent his brother from supporting a candidate opposed by
George could have caused George to question Simasko’s loyalty and, pursuant to the Elrod/Branti
exception, was a valid reason for which to terminate Simasko. Accordingly, there was no
constitutional violation in this case.
III. Conclusion
        The defendants did not violate the Constitution by constructively discharging Simasko based
either on his decision to remain neutral in his supervisor’s campaign, or based on Simasko’s failure
to attempt to curtail his brother’s support of his supervisor’s opponent. The defendants are
accordingly entitled to qualified immunity and the denial of summary judgment is REVERSED.
