       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206
    ELECTRONIC CITATION: 2000 FED App. 0046P (6th Cir.)
                File Name: 00a0046p.06


UNITED STATES COURT OF APPEALS
              FOR THE SIXTH CIRCUIT
                _________________


                                 ;
                                  
WANDA SOWARDS,
                                  
        Plaintiff-Appellant,
                                  
                                  
                                       No. 98-6768
             v.
                                  
                                   >
LOUDON COUNTY,                    
                                  
                                  
TENNESSEE and TIMOTHY

his official capacity as Sheriff 
GUIDER, individually and in
                                  
                                  
of Loudon County,
Tennessee,                        
         Defendants-Appellees. 
                                 1

      Appeal from the United States District Court
   for the Eastern District of Tennessee at Knoxville.
    No. 96-00659—James H. Jarvis, District Judge.
               Argued: October 26, 1999
          Decided and Filed: February 8, 2000
Before: JONES, MOORE, and GILMAN, Circuit Judges.




                             1
2     Sowards v. Loudon County,                    No. 98-6768
      Tennessee, et al.

                    _________________
                         COUNSEL
ARGUED:        Peter Alliman, WHITE, CARSON &
ALLIMAN, Madisonville, Tennessee, for Appellant. Dean B.
Farmer, HODGES, DOUGHTY & CARSON, Knoxville,
Tennessee, for Appellees. ON BRIEF: Peter Alliman,
WHITE, CARSON & ALLIMAN, Madisonville, Tennessee,
for Appellant. Dean B. Farmer, Keith L. Edmiston,
HODGES, DOUGHTY & CARSON, Knoxville, Tennessee,
for Appellees.
                    _________________
                        OPINION
                    _________________
   KAREN NELSON MOORE, Circuit Judge. Wanda
Sowards filed suit under 42 U.S.C. § 1983 against Loudon
County and the Sheriff of Loudon County Timothy Guider, in
his individual and official capacities, claiming that she was
terminated from her position as a jailer at the Loudon County
Sheriff’s Department in retaliation for exercising her First
Amendment rights of political and intimate association.
Sowards’s husband, William Sowards, had run unsuccessfully
for sheriff against Guider in early 1994. Guider terminated
Sowards’s employment in July 1995 allegedly because she
missed an outstanding warrant on a person brought into the
jail. The district court granted Loudon County and Guider’s
motion for summary judgment and dismissed the case because
it found no genuine issue of material fact existed to show
Sowards’s constitutionally protected activity substantially
motivated Guider to terminate her employment. Sowards
appeals the dismissal of her case. Loudon County and Guider
respond that even if Sowards’s First Amendment rights were
violated, political affiliation is a proper consideration for the
position of a jailer under the Elrod/Branti exception. In
addition, they claim that Guider is entitled to qualified
immunity in his individual capacity.
No. 98-6768                 Sowards v. Loudon County,         3
                                      Tennessee, et al.

  We conclude that Sowards has established that she suffered
an adverse action while engaged in constitutionally protected
activity. A genuine issue of material fact exists whether
Guider’s action was substantially motivated by this activity.
Because political considerations are not appropriate for the
position of a jailer, we hold that the Elrod/Branti exception to
the First Amendment rule protecting public employees against
politically-based dismissals does not apply in this case.
Finally, Guider is not entitled to qualified immunity in his
individual capacity.        Therefore, we REVERSE and
REMAND for further proceedings in Sowards’s retaliation
suit against Loudon County and Guider.
              I. FACTS AND PROCEDURE
  Wanda Sowards began working at the Loudon County
Sheriff’s Department (“LCSD”) as a road deputy in 1986 and
then transferred to the position of a jailer in 1989. In early
1994, her husband, William Sowards, announced that he
would be running as a Republican for the position of Sheriff
of Loudon County against incumbent Timothy Guider, also a
Republican. Sowards’s husband lost to Guider in the
Republican primary election in May 1994.
  Sowards claims that after her husband announced his
candidacy, her work environment changed significantly. She
asserts that her supervisors ostracized her, disciplined her
more harshly than her co-workers, changed her day shift to a
split shift, and reduced her overtime opportunities. Finally,
on July 19, 1995, she was terminated allegedly because she
had missed an outstanding warrant.
  On June 28, 1995, Edward D. Ricker was arrested on a DUI
charge and brought to the LCSD jail. Sowards was working
on that date and was responsible for checking for any
outstanding warrants on persons brought into the facility. She
claims that she did not find an outstanding warrant on Ricker
because she had understood his name to be “Wicker,”
resulting in Ricker later being released without the warrant
4    Sowards v. Loudon County,                   No. 98-6768      No. 98-6768                Sowards v. Loudon County,        21
     Tennessee, et al.                                                                                 Tennessee, et al.

being served. Sowards’s supervisor, Chief Jailer Joe Bridges,     had terminated the employment of his deputy sheriffs for
recommended terminating her employment because the                political reasons. See Hall v. Tollett, 128 F.3d 418, 429-30
warrant involved a serious burglary charge that had been          (6th Cir. 1997). Defendants seem to argue that because the
outstanding for over one year. He did not consider the fact       law was unclear as to whether political affiliation was an
that she may have misunderstood the person’s name to be an        appropriate consideration for the position of deputy sheriff in
important consideration in his recommendation. After              Tennessee, it also was unclear regarding the position of a
receiving Bridges’s recommendation, Guider did not conduct        jailer at the LCSD. A deputy sheriff, however, has different
any further investigation. A few days later he agreed to          duties than a jailer under Tennessee law. For example, the
terminate Sowards’s employment.                                   deputy sheriffs in Hall were responsible for patrolling the
                                                                  roads of the county and responding to emergency situations.
   Sowards filed a complaint against Loudon County and            See id. at 429. Therefore, the fact that the law may have been
Guider, in his individual and official capacities, pursuant to    unclear regarding the applicability of the Elrod/Branti
42 U.S.C. § 1983, claiming that she was terminated in             exception to the position of deputy sheriff in 1995 is not
retaliation for the exercise of her First Amendment rights of     dispositive in this case.
political and intimate association. Loudon County and Guider
filed a motion for summary judgment, arguing that no genuine         As discussed in Part II.B supra, however, the position of a
issue of material fact exists regarding Sowards’s retaliation     jailer is analogous to the position of a prison guard, and the
claim. They also claimed that political considerations are        Supreme Court concluded that political considerations are
appropriate for the position of a jailer under the Elrod/Branti   inappropriate for the employment decisions concerning a
exception and that Guider is entitled to qualified immunity in    prison guard in 1990. See Rutan v. Republican Party of
his individual capacity. The district court granted Loudon        Illinois, 497 U.S. 62, 79 (1990). It was objectively
County and Guider’s motion in part and dismissed Sowards’s        unreasonable for Guider to believe that political
claim based on the right of intimate association. The district    considerations were appropriate for the position of a jailer in
court denied their motion with respect to Sowards’s claim         1995 in light of the Supreme Court’s 1990 Rutan decision.
based on the right of political association and found             Because the law was so clearly established that he could not
insufficient evidence upon which to decide whether political      reasonably take political considerations into account when
considerations are appropriate for the position of a jailer and   terminating Sowards, Guider is not entitled to qualified
to evaluate the defense of qualified immunity. After more         immunity in his individual capacity for Sowards’s political
discovery, Loudon County and Guider filed a second motion         association claim.
for summary judgment based on the same arguments.
Sowards filed a response to this motion and a motion to                               III. CONCLUSION
reconsider the district court’s dismissal of her right of
intimate association claim. The district court granted              For the reasons stated above, we REVERSE the district
Sowards’s motion to reconsider her right of intimate              court’s grant of summary judgment to defendants and
association claim but then granted Loudon County and              REMAND for further proceedings on Sowards’s claim of
Guider’s motion for summary judgment dismissing all of            retaliation based on her rights of political and intimate
Sowards’s claims. It reasoned that no rational juror could        association under the First Amendment.
find Guider’s decision to terminate Sowards was substantially
motivated by the exercise of her First Amendment rights of
20       Sowards v. Loudon County,                           No. 98-6768         No. 98-6768                 Sowards v. Loudon County,         5
         Tennessee, et al.                                                                                             Tennessee, et al.

have noted that a Supreme Court or Sixth Circuit decision                        political and intimate association. Sowards filed a timely
specifically holding that a certain position falls under this                    notice of appeal of the district court’s decision.
exception is not necessary for the law to be clearly established
under the doctrine of qualified immunity. See McCloud v.                                                II. ANALYSIS
Testa, 97 F.3d 1536, 1556 (6th Cir. 1996). Neither the
Supreme Court nor the Sixth Circuit has evaluated whether a                      A. Sowards’s First Amendment Retaliation Claim
jailer at the LCSD, or a jailer possessing the same duties as
those mandated by Tennessee           law, falls under the                          A district court’s decision to grant summary judgment is
Elrod/Branti exception.4                                                         reviewed de novo. See General Elec. Co. v. G. Siempelkamp
                                                                                 GmbH & Co., 29 F.3d 1095, 1097 (6th Cir. 1994). Summary
   Defendants argue that our decision in Cagle v. Gilley, 957                    judgment is proper only if there is no genuine issue as to any
F.2d 1347 (6th Cir. 1992), shows the “murkiness” of the law                      material fact and the moving party is entitled to a judgment as
with respect to positions in a county sheriff’s department. In                   a matter of law. FED. R. CIV. P. 56(c). We must look beyond
that decision, we concluded that as of 1988, no clearly                          the pleadings and assess the proof to determine whether there
established law prohibited the consideration of political                        is a genuine need for trial. See Matsushita Elec. Indus. Co. v.
affiliation for the position of deputy sheriff in Tennessee. See                 Zenith Radio Corp., 475 U.S. 574, 587 (1986). The proper
Cagle, 957 F.2d at 1349 (pointing out a circuit split regarding                  inquiry is whether the evidence is such that a reasonable jury
whether this      position is subject to the Elrod/Branti                        could return a verdict for the plaintiff. See Anderson v.
exception).5 In another decision, we determined that the state                   Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Street v.
of the law regarding patronage dismissals of deputy sheriffs                     J.C. Bradford & Co., 886 F.2d 1472, 1476-80 (6th Cir. 1989).
in Tennessee had not been clarified as of September 1, 1994,                     We view inferences to be drawn from the underlying facts in
and therefore we granted qualified immunity to a sheriff who                     the light most favorable to the nonmoving party. See General
                                                                                 Elec. Co., 29 F.3d at 1097-98.
                                                                                    Sowards claims that she was terminated from her position
     4                                                                           as a jailer at the LCSD for exercising her First Amendment
      We emphasize again that the actual duties of a particular position,
and not its title, govern the Elrod/Branti analysis. See Hall v. Tollett, 128    rights of political and intimate association in violation of 42
F.3d 418, 423 (6th Cir. 1997). Because the duties of a jailer may vary           U.S.C. § 1983. In order to establish retaliation for engaging
from state to state, it is important to examine the applicable state and local   in constitutionally protected activity, a plaintiff must prove
law when deciding whether political considerations may be used in
employment decisions concerning a jailer. See id. at 427-29 (engaging in         the following elements: “(1) the plaintiff engaged in
a case-by-case analysis of state and local law to determine whether the          protected conduct; (2) an adverse action was taken against the
position of deputy sheriff falls within the Elrod/Branti exception).             plaintiff that would deter a person of ordinary firmness from
Therefore, in deciding whether the law was clearly established for the           continuing to engage in that conduct; and (3) there is a causal
purpose of qualified immunity, we look for decisions that involve                connection between elements one and two – that is, the
positions with the same or similar statutory duties.                             adverse action was motivated at least in part by the plaintiff’s
     5                                                                           protected conduct.” Thaddeus-X v. Blatter, 175 F.3d 378, 394
      Sowards correctly notes that the Cagle court did not recognize or          (6th Cir. 1999) (en banc). In brief, this analysis focuses on
address the Supreme Court’s conclusion in Elrod that political
considerations may not be used for the employment of the position of             whether the adverse employment action was motivated in
chief deputy sheriff. See Elrod v. Burns, 427 U.S. 347, 350-51, 372-73,          substantial part by the plaintiff’s constitutionally protected
374-75 (1976).
6       Sowards v. Loudon County,                          No. 98-6768        No. 98-6768                 Sowards v. Loudon County,        19
        Tennessee, et al.                                                                                           Tennessee, et al.

activity. See Mattox v. City of Forest Park, 183 F.3d 515,                    1152, 1154 (6th Cir. 1996). Under the first step, we must
520-21 (6th Cir. 1999). If the plaintiff meets her burden, the                examine “whether plaintiff has shown a violation of a
burden then shifts to the defendants to prove by a                            constitutionally protected right.” Id. “If the answer is yes,
preponderance of the evidence that the employment decision                    then the second step is to determine whether the right is so
would have been the same absent the protected conduct. See                    ‘clearly established’ that a ‘reasonable official would
Kreuzer v. Brown, 128 F.3d 359, 363 (6th Cir. 1997), cert.                    understand that what he is doing violates that right.’” Id.
denied, 118 S. Ct. 1802 (1998); see also Mt. Healthy City Sch.                (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).1
                                                                                 As discussed in Part II.A supra, Sowards has provided
                                                                              sufficient evidence from which a reasonable juror could
    1
                                                                              conclude that Guider terminated her because of her
      In Whitaker v. Wallace, 170 F.3d 541, 544 (6th Cir. 1999), a panel      association with her husband in violation of her First
in this circuit applied the burden shifting analysis used in Title VII        Amendment right of intimate association. In Adkins v. Board
employment discrimination cases to a First Amendment retaliation claim.       of Education, 982 F.2d 952, 956 (6th Cir. 1993), we
The Supreme Court, however, has expressly held that in a First
Amendment retaliation case, once a plaintiff shows that her                   determined that a high school secretary’s right of intimate
constitutionally protected conduct was a substantial factor in an adverse     association, protecting her from being fired because of her
employment decision, the burden of persuasion shifts to the defendant to      relationship with her husband, is a clearly established right in
“show[] by a preponderance of the evidence that it would have reached         this circuit. We cited to two Supreme Court decisions,
the same decision . . . even in the absence of the protected conduct.” Mt.    establishing the right in 1984 and 1987, and concluded it was
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977);
see also Board of County Comm’rs v. Umbehr, 518 U.S. 668, 675 (1996)          objectively reasonable to expect the public official to respect
(Stating that to prevail in a First Amendment retaliation claim, “an          that right in 1988. See Adkins, 982 F.2d at 956 (citing Board
employee must prove that the conduct at issue was constitutionally            of Directors of Rotary Int’l v. Rotary Club of Duarte, 481
protected, and that it was a substantial or motivating factor in the          U.S. 537 (1987); Roberts v. United States Jaycees, 468 U.S.
termination. If the employee discharges that burden, the government can       609 (1984)). Because Sowards’s right of intimate association
escape liability by showing that it would have taken the same action even
in the absence of the protected conduct.”). We have followed this             was clearly established by July 19, 1995, it was objectively
analysis in opinions in this circuit. See Barrett v. Harrington, 130 F.3d     reasonable for Guider to understand that he was violating that
246, 262 (6th Cir. 1997), cert. denied, 118 S. Ct. 1517 (1998); Ratliff v.    right when he terminated her. Therefore, he is not entitled to
Wellington Exempted Village Sch. Bd. of Educ., 820 F.2d 792, 795 (6th         a defense of qualified immunity on this claim.
Cir. 1987); see also Kreuzer, 128 F.3d 359, 365 n.1 (6th Cir. 1997)
(Moore, J., dissenting) (concurring in the majority opinion’s statement of      With respect to Sowards’s political association claim, a
the law and noting that unlike the employment discrimination cases
brought under Title VII, once a plaintiff establishes sufficient evidence     genuine issue of material fact exists as to whether Guider
that the protected conduct was a substantial or motivating factor behind      violated this First Amendment right in terminating her
the adverse employment action, the burden of persuasion shifts to the         employment. The right of political association with a
defendants to prove that the same decision would have been made in the        particular campaign is a clearly established right. See Rutan
absence of the protected conduct), cert. denied, 118 S. Ct. 1802 (1998);      v. Republican Party of Illinois, 497 U.S. 62, 69 (1990).
Acevedo-Diaz v. Aponte, 1 F.3d 62, 67 (1st Cir. 1993) (noting that unlike     Defendants argue, however, that the law governing which
the burden shifting analysis performed under Title VII cases, in a First
Amendment political retaliation claim, “once the burden of persuasion         public positions fall under the Elrod/Branti exception was not
shifts to the defendant-employer, the plaintiff-employee will prevail         so clearly established in 1995 for Guider to understand that he
unless the fact finder concludes that the defendant has produced enough       was violating Sowards’s right of political association. We
evidence to establish that the plaintiff’s dismissal would have occurred in
18   Sowards v. Loudon County,                    No. 98-6768      No. 98-6768                       Sowards v. Loudon County,                7
     Tennessee, et al.                                                                                         Tennessee, et al.

inmates, taking precautions to ensure their safety, and              1. Protected Conduct
arranging communications between inmates and the public.
These duties essentially mirror the duties of a prison guard.         To prove the first element of retaliation, Sowards argues
In Rutan v. Republican Party of Illinois, 497 U.S. 62, 79          that she was exercising her rights of both political and
(1990), the Supreme Court determined that political                intimate association protected by the First Amendment. The
considerations are not appropriate for employment decisions        right of political association is a well established right under
regarding the position of a prison guard. Defendants argue         the First Amendment for “‘political belief and association
that LCSD jailers are not like prison guards because they          constitute the core of those activities protected by the First
work in a small facility where each individual decision has        Amendment.’” Rutan v. Republican Party of Illinois, 497
serious consequences, unlike a large prison facility with          U.S. 62, 69 (1990) (quoting Elrod v. Burns, 427 U.S. 347,
several guards on duty and multiple levels of supervision.         356 (1976)). Support of a political candidate falls within the
This argument is not persuasive because, like a jailer, a prison   scope of the right of political association. See Elrod, 427
guard’s individual decisions and actions also could have           U.S. at 356-57. Therefore, Sowards was exercising her
serious consequences for the inmates and the visiting public.      constitutionally protected right of political association by
Therefore, based on the Rutan decision, it is not appropriate      supporting her husband’s campaign for the office of Sheriff
to take political considerations into account for the position     of Loudon County.
of a jailer at the LCSD, and the Elrod/Branti exception is not
applicable in this case.                                             Sowards also claims that she was retaliated against because
                                                                   of her exercise of her First Amendment right of intimate
C. Qualified Immunity                                              association with her husband. In Roberts v. United States
                                                                   Jaycees, 468 U.S. 609, 617-18 (1984), the Supreme Court
  Defendants also argue that Guider is entitled to qualified       stated that one type of constitutionally protected freedom of
immunity to the extent that he was sued in his individual          association is the right “to enter into and maintain certain
capacity. The district court determined that sufficient            intimate human relationships [which] must be secured against
evidence did not exist upon which to make a decision on this       undue intrusion by the State because of the role of such
defense. If a plaintiff states a claim under 42 U.S.C. § 1983,     relationships in safeguarding the individual freedom that is
then this court reviews de novo a district court’s decision        central to our constitutional scheme.” The Supreme Court
regarding qualified immunity. See Hall v. Tollett, 128 F.3d        reasoned that the formation and preservation of certain types
418, 422 (6th Cir. 1997).                                          of “highly personal relationships” is necessary to secure
                                                                   individual liberty and suggested that marriage is such a
  The doctrine of qualified immunity provides that                 relationship that must be protected from unwarranted state
“government officials performing discretionary functions[]         interference. See id. at 618-19. Although the Supreme Court
generally are shielded from liability for civil damages 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               any event for nondiscriminatory reasons”). When a later decision from
                                                                   this court conflicts with its prior decisions, the earlier cases control. See
(1982). We have adopted a two-step test for determining            Brentwood Academy v. Tennessee Secondary Sch. Athletic Ass’n, 180
whether a government official is entitled to qualified             F.3d 758, 765 (6th Cir. 1999). Therefore, the Supreme Court’s Mt.
immunity. See Brennan v. Township of Northville, 78 F.3d           Healthy analysis, as applied by this circuit in Barrett and Ratliff, inter
                                                                   alia, governs First Amendment retaliation claims in this circuit.
8       Sowards v. Loudon County,                           No. 98-6768         No. 98-6768                   Sowards v. Loudon County,           17
        Tennessee, et al.                                                                                               Tennessee, et al.

did not explain whether this right stems from the freedom of                    Cir. 1991) (holding that mayor’s secretary had access to
association under the First Amendment or the fundamental                        confidential and political material because she controlled the
right to marry under the Due Process Clause of the Fourteenth                   lines of communication to the mayor)). Both Guider and
Amendment, we have analyzed the right of intimate                               Bridges stated that Sowards did not have any access to any
association under the First Amendment. See Adkins v. Board                      confidential or political information. Therefore, category
of Educ., 982 F.2d 952, 955-56 (6th Cir. 1993).                                 three does not apply in this case.
   In Adkins, a high school secretary claimed that the                             Although none of the McCloud categories are applicable,
superintendent of the school board refused to recommend                         defendants also cite to several cases in other circuits that have
continuing her employment in retaliation for her association                    held upheld the use of political considerations for positions
with her husband, who was the principal of the high school.                     allegedly similar to a jailer at the LCSD. The primary case
We concluded that the plaintiff secretary had made a prima                      they rely on, however, is inapposite. In Jenkins v. Medford,
facie case of a constitutional violation because evidence                       119 F.3d 1156, 1164 (4th Cir. 1997), cert. denied, 118 S. Ct.
showed that her freedom to form “‘certain intimate human                        881 (1998), the Fourth Circuit held that a sheriff could base
relationships’” was implicated in the superintendent’s                          his decision to fire or hire deputy sheriffs on political
decision not to recommend rehiring her. See 982 F.2d at 956                     considerations. It reasoned that under North Carolina law the
(quoting Roberts, 468 U.S. at 617). We explained, “it is not                    deputy sheriffs “play a special role in implementing the
necessary that the governmental act require the abandonment                     sheriff’s policies and goals” because they are sworn to carry
or dissolution of a marriage relationship as the price for                      out law enforcement on behalf of the sheriff and make
retaining public employment. The right of association is                        independent decisions which may ultimately affect law
violated if the action constitutes an undue intrusion by the2                   enforcement policies. Jenkins, 119 F.3d at 1162. In addition,
state into the marriage relationship.” Id. (quotation omitted).                 the sheriff relies on the deputies to foster public confidence in
Accordingly, Sowards has the right to associate intimately                      law enforcement and is civilly liable for their actions. See id.
with her husband, and her marriage relationship is protected                    at 1162-63. Based on this evidence, the court concluded that
from undue intrusion by the state. Sowards claims that she                      deputy sheriffs are the “alter ego” of the sheriff in North
lost her job because of her protected marital relationship, and                 Carolina. See id. at 1164. Defendants argue that, like the
that this constitutes undue intrusion by the state in that                      deputy sheriffs in Jenkins, jailers at the LCSD in fact establish
relationship. See Adkins, 982 F.2d at 956.                                      policy with the individual decisions they make and the sheriff
                                                                                is civilly liable for their actions. Although jailers have some
                                                                                decisionmaking authority with respect to providing for the
                                                                                needs and safety of the prisoners, they are supervised by and
    2
      We note that the Adkins decision merges the analysis of whether a         must follow the directives of Guider and Bridges. They have
plaintiff was engaged in constitutionally protected conduct with the            no role in the policymaking process of the prison. While
analysis of whether an adverse action violated the plaintiff’s constitutional   Guider is civilly liable for jailers’ actions, this is not sufficient
rights, which have been separated into two steps in more recent decisions.      to characterize them as his “alter-ego.”
See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc);
Mattox v. City of Forest Park, 183 F.3d 515, 520-21 (6th Cir. 1999);
Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998). However, it is clear           A jailer’s statutory duties under Tennessee law generally
that under the Adkins decision, the right of intimate association is            involve providing for the needs and safety of the jail’s
protected only where the plaintiff alleges an undue interference with a         inmates, such as providing food, bedding, and support for the
protected intimate relationship.
16   Sowards v. Loudon County,                   No. 98-6768      No. 98-6768                Sowards v. Loudon County,         9
     Tennessee, et al.                                                                                 Tennessee, et al.

J.A. at 91. Guider admitted that Sowards’s position as a jailer     Defendants respond with several arguments. First, they
did not involve any policymaking for the day-to-day operation     mistakenly assert that Sowards’s right to marry was not
of the prison facility and that she was not in a confidential     violated because she is still married to her husband and that
relationship with him regarding how to run the facility. Nor      she does not have a fundamental right to marry a specific
did he believe that political loyalty was required for Sowards    person. With respect to the First Amendment’s right of
to carry out her responsibilities. In addition, Bridges stated    intimate association, the state action need not cause
that Sowards did not make policy for the jail or the sheriff’s    “abandonment or dissolution” of the marriage to constitute an
department and that she would carry out the duties and orders     undue intrusion. See Adkins, 982 F.2d at 956. In addition,
that he or the sheriff would give to her. He also agreed that     defendants’ citations to cases involving the fundamental right
this position did not require political loyalty to the sheriff.   to marry under the Due Process Clause of the Fourteenth
                                                                  Amendment are not applicable to Sowards’s right of intimate
   Loudon County and Guider claim that the position of a          association claim under the First Amendment. Defendants
jailer could fall under McCloud category two or three. With       also argue that Guider’s actions need only satisfy a rational
respect to category two, they assert that Guider and Bridges      basis test. However, it is not necessary to engage in such an
delegated much of their discretionary authority regarding the     analysis at the summary judgment stage if the plaintiff alleges
day-to-day operation of the jail to jailers. The position of a    that she was terminated on the basis of a protected
jailer does not fall under McCloud category two, however,         relationship. See Montgomery v. Carr, 101 F.3d 1117, 1127-
because this category involves delegations of policymaking        28 (6th Cir. 1996). Sowards claims that Guider dismissed her
authority. “Category two also exists to capture those who         because of her protected relationship with her husband, which
would otherwise be category one policymakers, except that         could constitute an undue interference in that relationship
the federal government, state, county, or municipality has        under Adkins. Therefore, we conclude that Sowards has met
chosen for whatever reason not to set out the responsibilities    her burden at this juncture of establishing that she was
of such a position in a statute, ordinance, or regulation.”       engaged in the protected conduct of intimate association
McCloud, 97 F.3d at 1557 n.31. Both Guider and Bridges            under the First Amendment.
admitted that jailers do not participate in any type of
policymaking for the prison and are simply required to follow       2. Adverse Action
directives. Therefore, the position of a jailer does not fall
under McCloud category two.                                         Sowards then must prove that she suffered an adverse
                                                                  action by Loudon County and Guider that caused her to suffer
  In addition, defendants argue that a jailer falls under         an injury that would likely chill a person of ordinary firmness
category three because a jailer acts as a conduit for             from continuing to engage in her constitutionally protected
communication between prisoners and the sheriff. The              conduct. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th
McCloud category three position involves employees who            Cir. 1999) (en banc). Sowards was dismissed from her
control the lines of communication to category one or             position as a jailer at the LCSD. A dismissal qualifies as an
category two position-holders. See id. at 1557 n.32. This         adverse employment action for the purposes of a retaliation
category is concerned with this type of employee’s access to      claim. See id. at 396 (pointing to “discharge, demotions,
confidential, political information transmitted to the            refusal to hire, nonrenewal of contracts, and failure to
policymaker, which requires political loyalty. See id. (citing    promote” as examples of adverse actions in the employment
Faughender v. City of North Olmsted, 927 F.2d 909, 914 (6th       context).
10   Sowards v. Loudon County,                    No. 98-6768      No. 98-6768                  Sowards v. Loudon County,          15
     Tennessee, et al.                                                                                    Tennessee, et al.

  3. Requisite Causal Connection                                   others, and to admit persons having business with the
                                                                   prisoner. See TENN. CODE ANN. §§ 41-4-104, 41-4-105, 41-
   Finally, Sowards has the burden of proving that her             4-106, 41-4-108, 41-4-109, 41-4-111, 41-4-114 (1997).
termination was substantially motivated by the exercise of her
constitutional rights. See Thaddeus-X v. Blatter, 175 F.3d            Defendants argue that these statutory duties require
378, 394 (6th Cir. 1999) (en banc). Sowards worked as a            discretion in the day-to-day operation of the jail and have
jailer at the LCSD for several years and never had any             serious consequences with respect to the safety of the
problems until her husband announced that he was running           prisoners and the public. Chief Jailer Bridges stated that “As
for the position of Loudon County Sheriff. She then noticed        a jailer, Sowards was required to exercise her discretion and
an abrupt change in her work environment. She asserts that         judgment in determining whether the inmates needed medical
her supervisors ostracized her, changed her day shift to a split   attention, whether any of the inmates was suicidal, and
shift, disciplined her more harshly than her co-workers, told      whether any disruptions were likely to arise between the
her she was being watched by the sheriff’s office, and reduced     inmates.” J.A. at 247 (Bridges Aff.). She also was
her overtime opportunities. On July 19, 1995, Guider               “responsible for exercising [her] discretion and judgment with
terminated Sowards from her position as a jailer allegedly in      regard to the admission of visitors and any special requests or
response to an incident that occurred on June 28, 1995, in         requirements by the inmates or their relatives or agents . . . .
which Sowards failed to serve an outstanding warrant for           [and also] for dispensing medication, food, necessary living
burglary on a person who had been brought to jail on a DUI         supplies, and mail.” J.A. at 247. In addition, she was
charge. In Sowards’s dismissal letter, Guider explained that       responsible for “preventing contraband from entering or
he was following Chief Jailer Bridges’s recommendation to          exiting the facility and for making sure inmates remain secure
terminate her employment because it was her responsibility to      in the facility.” J.A. at 247. Bridges also stated that at certain
check for outstanding warrants and because of the serious          times only two jailers are on duty, without any direct
nature of the burglary charge which had been outstanding for       supervision at the jail facility, and that he relies on them to
over a year. In his deposition, Guider denied that he took into    carry out their duties to avoid any danger to the inmates or the
account the fact that Sowards was married to William               visiting public. Defendants argue that the position of a jailer
Sowards when terminating her. However, when asked “[i]f            involves especially serious consequences because a jailer
Wanda Sowards had been one of [his] staunchest supporters          could violate the civil rights of the prisoners and the visiting
in the last election would [he] have looked into the basis for     public, and the sheriff is civilly liable for the acts of a jailer.
Sergeant Bridges’ recommendation of termination rather than        Therefore, they argue that a jailer’s actions could have serious
just more or less accepting it,” Guider replied, “I might have.”   political and legal implications for the sheriff.
J.A. at 140.
                                                                     Sowards agrees that her responsibilities “included securing
   Sowards has presented sufficient evidence upon which a          the inmates located in the Loudon County jail, looking after
reasonable juror could conclude that Guider’s decision to          their safety, providing medications and other medical
terminate her employment was substantially motivated by her        necessities for their needs.” J.A. at 91. She asserts that her
protected First Amendment associational rights. Guider             position did not, however, “involve any managerial
admitted that he might have treated her termination case           responsibilities, any policy making or involvement in political
differently if she had been one of his political supporters.       or policy decisionmaking. [She] simply followed orders and
Although defendants respond that Guider also asserted that he      directives” given by Chief Jailer Bridges and Sheriff Guider.
14    Sowards v. Loudon County,                    No. 98-6768      No. 98-6768                    Sowards v. Loudon County,            11
      Tennessee, et al.                                                                                      Tennessee, et al.

  named in law, possessing by virtue of the jurisdiction’s          did not take Sowards’s association with her husband or his
  pattern or practice the same quantum or type of                   political campaign into account in deciding to terminate her
  discretionary authority commonly held by category one             employment, Guider made conflicting statements regarding
  positions in other jurisdictions;                                 his treatment of Sowards’s case. Thus, a genuine issue of
                                                                    material fact exists regarding his true motivation for
  Category Three: confidential advisors who spend a                 terminating her employment.
  significant portion of their time on the job advising
  category one or category two position-holders on how to             Moreover, other evidence also supports Sowards’s claim
  exercise their statutory or delegated policymaking                that Guider’s decision to terminate her was substantially
  authority, or other confidential employees who control            motivated by her protected conduct. Prior to her termination,
  the lines of communications to category one positions,            Sowards had never been disciplined for missing a warrant.
  category two positions or confidential advisors;                  Guider admitted that Sowards had been a dependable
                                                                    employee and had never been involved in any serious
  Category Four: positions that are part of a group of              disciplinary action. Bridges acknowledged that her job
  positions filled by balancing out political party                 performance over the years was a positive factor on her
  representation, or that are filled by balancing out               behalf. However, Bridges stated that he decided to
  selections made by different governmental agents or               recommend termination because the warrant Sowards missed
  bodies.                                                           had been outstanding for a long time and involved a serious
                                                                    crime. Even though Sowards explained that she had looked
  If a particular position falls into one of these categories,      for the wrong name, Bridges stated that she could have looked
then political affiliation is an appropriate consideration for      up the records to find the correct name, and he did not treat
that position and a public employee may be dismissed without        her mistake more leniently because a misunderstanding was
violating the First Amendment. See Hall, 128 F.3d at 424. A         involved. Bridges also  admitted that other LCSD officers had
government position is not required, however, to fall neatly        missed mittimuses,3 but had never been fired for that
within one of the categories to be entitled to the Elrod-Branti     omission despite their obligation to check for both
exception. See Feeney, 164 F.3d at 318.                             outstanding warrants and mittimuses, which are located in the
                                                                    same box. Because there is evidence that she was treated
  Under Tennessee law, “[t]he sheriff of the county . . . may       differently than other officers who had made similar mistakes
appoint a jailer, for whose acts the sheriff is civilly             and that she was terminated based on only one mistake,
responsible.” TENN. CODE ANN. § 41-4-101 (1997). Jailers            Sowards has provided sufficient evidence that her association
are charged with the following responsibilities: to receive and     with her husband substantially motivated Guider to terminate
safely keep convicts on their way to the state or federal           her.
penitentiary, to file and keep safe under the sheriff’s direction
the mittimus or process by which a prisoner is committed or
discharged from jail, to determine within their discretion what         3
type of precautions to take for guarding against escape and to            Like a warrant, a mittimus is a written order from a court or
prevent the importation of drugs, to provide support, to            magistrate “directed to the sheriff or other officer, commanding him to
                                                                    convey to the prison the person named therein, and to the jailer,
furnish adequate food and bedding, to enforce cleanliness in        commanding him to receive and safely keep such person until he shall be
the jails, to convey letters from prisoners to their counsel and    delivered by due course of law.” BLACK’S LAW DICTIONARY 1002 (6th
                                                                    ed. 1990).
12   Sowards v. Loudon County,                  No. 98-6768     No. 98-6768                 Sowards v. Loudon County,         13
     Tennessee, et al.                                                                                Tennessee, et al.

   Defendants have not presented sufficient evidence that       of a jailer. Whether political affiliation is an appropriate
Guider would have terminated Sowards on the basis of this       consideration for a government position is a question of law.
one mistake in the absence of her protected association. They   See Mumford v. Basinski, 105 F.3d 264, 271 (6th Cir.), cert.
argue that Guider did not know that Sowards had supported       denied, 118 S. Ct. 298 (1997). The “issue on summary
her husband in his political campaign for sheriff and thus      judgment is whether Defendants have established that no
could not have made any decisions on this basis. See Hall v.    genuine factual issue exists as to whether political affiliation
Tollett, 128 F.3d 418, 426-27 (6th Cir. 1997) (dismissing       may appropriately be considered with respect to the position
plaintiffs’ political retaliation claims because of lack of     in question.” Feeney v. Shipley, 164 F.3d 311, 314 (6th Cir.
evidence that a newly elected sheriff had any knowledge of      1999) (quotation omitted).
which candidate plaintiffs had actually supported in the
election). Guider claims that Sowards told him she was             In Elrod v. Burns, 427 U.S. 347, 367 (1976), the Supreme
planning on supporting his candidacy rather than her            Court established the principle that certain public employees
husband’s.       Sowards denies making this statement.          in confidential and policymaking positions may be dismissed
Furthermore, Guider admitted “[b]ut in my mind, you know,       on the basis of their political affiliation without violating the
I felt confident that she would support her husband.” J.A. at   First Amendment. The Supreme Court reaffirmed this
146. Unlike the sheriff in Hall, Guider actually spoke with     holding in Branti v. Finkel, 445 U.S. 507, 518 (1980), stating
Sowards and “felt confident” that she would support her         that “the question is whether the hiring authority can
husband’s campaign. Defendants also argue that Guider           demonstrate that party affiliation is an appropriate
could not have known of Sowards’s political affiliation         requirement for the effective performance of the public office
because Sowards admitted she was not politically active at      involved.” In this analysis, we “must look beyond the mere
work and had not given money to any campaigns. A rational       job title and examine the actual duties of the specific
juror could conclude, however, that Guider knew Sowards         position.” Hall v. Tollett, 128 F.3d 418, 423 (6th Cir. 1997).
had supported her husband on the basis of Guider’s              It is “the inherent duties of the position in question, not the
deposition statement describing his conversation with her and   work actually performed by the person who happens to
his conclusion that she would support her husband.              occupy the office” that must be analyzed. Williams v. City of
                                                                River Rouge, 909 F.2d 151, 154 (6th Cir. 1990). In McCloud
  Viewing the evidence in the light most favorable to           v. Testa, 97 F.3d 1536, 1557 (6th Cir. 1996), we identified
Sowards, we conclude that a genuine issue of material fact      four categories of positions which should fall under the Elrod-
exists whether Sowards’s termination was substantially          Branti exception with reasonable certainty:
motivated by her protected associational freedoms.
Therefore, the district court erred in granting defendants’       Category One: positions specifically named in relevant
motion for summary judgment.                                      federal, state, county, or municipal law to which
                                                                  discretionary authority with respect to the enforcement of
B. Elrod/Branti Exception                                         that law or the carrying out of some other policy of
                                                                  political concern is granted;
  Loudon County and Guider argue that even if Sowards is
able to show that she was fired because of her political          Category Two: positions to which a significant portion
association with her husband, political affiliation is an         of the total discretionary authority available to category
appropriate consideration for the employment or termination       one position-holders has been delegated; or positions not
