               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 11a0448n.06
                                                                                       FILED
                                         No. 10-1992
                                                                                   Jul 01, 2011
                         UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                              FOR THE SIXTH CIRCUIT

THOMAS A. O’CONNOR,

       Plaintiff-Appellee,
                                                    ON APPEAL FROM THE UNITED
v.                                                  STATES DISTRICT COURT FOR THE
                                                    EASTERN DISTRICT OF MICHIGAN
TOWNSHIP OF REDFORD,
TRACEY SCHULTZ KOBYLARZ,

       Defendants-Appellants.
                                              /




BEFORE:       KEITH, CLAY, and COOK, Circuit Judges.

       CLAY, Circuit Judge. Defendant Tracey Schultz Kobylarz takes an interlocutory appeal

of the denial of her motion for summary judgment on the basis of qualified immunity in this First

Amendment retaliation action under 42 U.S.C. § 1983. For the reasons set forth below, we

AFFIRM.

                                       BACKGROUND

       Plaintiff Thomas O’Connor is the former Director of Constituent Services for the Township

of Redford, Michigan (“Township”).       Defendant Tracey Kobylarz is the current Township

Supervisor (“Supervisor”). From 1986 until 1999, Plaintiff was the director of youth services for

the Township. After his resignation, he worked in private sector public relations, and ran a
                                              No. 10-1992

community newspaper, The Redford Connection. In or about 2000, Plaintiff ran for Supervisor, but

lost the election to Kevin Kelly (“Kelly”).

        In November of 2004, Miles Handy II (“Handy”) succeeded Kelly as Supervisor following

an election campaign in which Plaintiff assisted Handy. After the election, the Township Board of

Trustees (“Board”) hired Plaintiff as a “transition coordinator,” in an independent contractor

capacity, to “meet and compile ideas from [] the entire staff in all the departments and to provide the

board a report on the findings.” (Pl.’s Dep. at 25.)

        In March of 2005, the Board created, and appointed Plaintiff to, the position of Director of

Constituent Services (“Director”). The parties dispute whether the position was created specifically

for Plaintiff.

        As enacted by the Board, the Municipal Code (“Code”) defines the position as follows:

        (a) The department of constituent services shall be responsible for the general
        supervision and coordination of services rendered by the following departments:
        parks and recreation, senior citizens and veterans, senior citizens’ housing,
        Diala-Ride, youth services, and community development. The day-to-day operations
        of the various departments, however, shall be the responsibility of the heads of those
        departments.

        (b) The head of the department of constituent services . . . shall be designated the
        director of constituent services and shall be appointed by the township board. The
        director of the department shall be the liaison between the township board and those
        departments under his general supervision and will also be responsible for outreach
        on residential roads, sidewalk, and Brownfield projects.

        (c) The director of constituent services shall have general knowledge of the day-
        to-day operations of the township. The director shall have at least ten years’
        experience working for a municipality and be able to work well with senior citizens
        and youth. The director must possess previous department head experience and must
        be flexible to provide the supervision necessary to help the various departments
        function as a cohesive unit.


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                                            No. 10-1992

(Ord. No. 261, Red. Mun. Code, art. IV, div. I, § 2-81.) Plaintiff testified that his experience as

Director “operated” as described in the Code. (Pl.’s Dep. at 21-24.) He further noted that on a day-

to-day basis, he would report to the administration committee, consisting of the Supervisor, treasurer,

and clerk, but that he would ultimately report to the Board itself. (Id. at 35.) When asked about his

interactions with then-Supervisor Handy, Plaintiff testified: “I would see him at least several times

a week . . . . [T]here’s a lot of . . . showing him what we were up against in terms of the problems,

so there was a lot of riding together and there was [sic] certainly lunches and also meetings in his

office.” (Id. at 29-30.)

       Additionally, Plaintiff testified that “a lot” of his role was “fielding complaints from

residents, so a lot of it was inbound calls, and there was also our outbound outreach through the

different programs and then specifically with relationship to the road program that was direct

mailings.” (Id. at 24.) Plaintiff added that he was involved in “advocating or handling evaluations

on some of the staff. Also there were several board members that were more hands on and wanted

to go and look at problems, so bringing them with me to meet residents.” (Id. at 25.)

       Defendant explained that the Director “was supposed to be the liaison between constituents

and the Township Supervisor, I believe, fielding calls and complaints.” (Def.’s Dep. at 12-13.)

Defendant recounted having meetings with Plaintiff, as Director, for the purpose of being “informed

of issues, concerns, programs, projects, everything that you would meet with a department head

about.” (Id. at 13.) Some of these meetings concerned the budget. (Id.)




                                                  3
                                            No. 10-1992

        Plaintiff assisted Handy with his reelection campaign in 2008, but Handy lost to Defendant,

who assumed office in November of 2008. The parties dispute how much Plaintiff assisted Handy

in his reelection efforts.

        According to Plaintiff, once Defendant took office, she made it clear to Plaintiff that she did

not trust him and that his job was in jeopardy because of his association with and support of Handy.

Plaintiff contends that Defendant sought to manipulate Plaintiff to “use his political contacts both

for her own benefit and to get her initiative[s] passed.” (Pl.’s Br. at 8.) On one occasion, as alleged,

Plaintiff refused Defendant’s request to ask a state representative to extend her an invitation to the

Governor’s State of the State Address on February 2, 2009.

        In a letter dated February 5, 2009, Defendant informed Plaintiff that he was being laid off,

effective immediately, and that his position “has been eliminated.” According to Defendant,

“[n]obody was hired to replace [Plaintiff], and his minimal duties were redistributed among other

Township employees.” (Def.’s Aff. ¶ 8.) Defendant did not seek approval from the Board to

terminate Plaintiff. Defendant cited economic conditions as the reason for her actions. It appears

that other Township employees were laid off on or around the same time. On February 25, 2009,

the Board voted, 5 to 2, to eliminate the position of Director of Constituent Services.

        On February 18, 2009, Plaintiff filed a complaint in the Wayne County Circuit Court against

Defendant Kobylarz, as well as the Township, alleging unlawful retaliation under 42 U.S.C. § 1983

and Michigan common law. Defendants removed this action to the U.S. district court pursuant to

28 U.S.C. §§ 1331 and 1441. On August 13, 2009, following Defendant’s motion to dismiss, the

district court dismissed Plaintiff’s state common law claim.


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                                            No. 10-1992

       On March 2, 2010, Defendants filed a motion for summary judgment, which the district court

denied on June 30, 2010. The district court held that material factual disputes existed as to whether

Plaintiff was terminated because of his political beliefs, and therefore summary judgement was not

appropriate on Plaintiff’s First Amendment claim. The district court also found that Defendants had

not sufficiently supported their position that Plaintiff’s employment was of a type that could be

terminated for political reasons. Furthermore, the district court held that qualified immunity was

inappropriate. Defendant Kobylarz thereafter filed this interlocutory appeal of the district court’s

denial of qualified immunity.

                                           DISCUSSION

       Defendant takes this interlocutory appeal of the district court’s denial of summary judgment

on the basis of qualified immunity.

       A.      Jurisdiction

       As an initial matter, we note our jurisdiction to entertain this interlocutory appeal. The denial

of qualified immunity is an appealable “final decision” for the purpose of 28 U.S.C. § 1291 to the

extent the appeal turns on an issue of law. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). If the

denial of qualified immunity turns on an issue of fact, this Court is without jurisdiction to resolve

the claim. See Johnson v. Jones, 515 U.S. 304, 313 (1995). In this case, the questions to be decided,

namely whether a particular job is entitled to First Amendment protection from patronage dismissals,

and whether the law was sufficiently unclear to entitle Defendant to qualified immunity, are legal

questions over which this Court’s jurisdiction extends. See Lane v. City of LaFollette, Tenn., 490




                                                  5
                                              No. 10-1992

F.3d 410, 418 (6th Cir. 2007); Sowards v. Loudon County, Tenn., 203 F.3d 426, 435 (6th Cir. 2000);

McCloud v. Testa, 97 F.3d 1536, 1546 (6th Cir. 1996) (hereinafter “McCloud I”).

        B.      Standard of Review & Qualified Immunity Standard

        We review the denial of qualified immunity de novo. See Kindle v. City of Jeffersontown,

Ky., 374 F. App’x 562, 569 (6th Cir. 2010) (citing Ctr. for Bio-Ethical Reform, Inc. v. City of

Springboro, 477 F.3d 807, 825 (6th Cir. 2007)). Qualified immunity shields “government officials

performing discretionary functions . . . 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 (1982).

        In determining whether an official is entitled to qualified immunity, courts ordinarily apply

a two step analysis. See Pearson v. Callahan, 129 S. Ct. 808, 818 (2009) (holding that the two-step

inquiry is not mandatory, but may often be appropriate). First, we consider whether, “[t]aken in the

light most favorable to the party asserting the injury[,] . . . the facts alleged show [that the official’s]

conduct violated a constitutional right.” Scott v. Harris, 550 U.S. 372, 377 (2007) (quoting Saucier

v. Katz, 533 U.S. 194, 201 (2001)). Second, if a constitutional right has been violated, we ask

“whether the right was clearly established . . . in light of the specific context of the case.” Id.

(quoting Saucier, 533 U.S. at 201). “For a right to be clearly established, the contours of the right

must be sufficiently clear that a reasonable official would understand that what he is doing violates

that right.” Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003) (internal citations omitted).

        C.      Analysis




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                                            No. 10-1992

       We begin, and end, with the question of whether, viewed in the light most favorable to

Plaintiff, the facts alleged show that Defendant’s conduct violated a constitutional right. See Harris,

550 U.S. at 377. Plaintiff claims a violation of the his rights under the First Amendment to be free

from dismissal based on his political beliefs or affiliation.

       The First Amendment generally proscribes the termination of a public employee based on

the employee’s political beliefs or affiliation. See Elrod v. Burns, 427 U.S. 347, 349 (1976); Caudill

v. Hollan, 431 F.3d 900, 908 (6th Cir. 2005) (noting that after Elrod, “patronage dismissals (i.e.,

dismissals for failure to support a particular party or candidate) have been, in general,

unconstitutional”). As we explained in Lane:

       Allowing the government to deny a benefit to an individual because that individual
       exercised his First Amendment rights presents two principal dangers. First, the
       inevitable tendency of a system of party patronage is to coerce employees into
       compromising their true political beliefs. The second danger . . . is that the denial of
       a government benefit on account of [] political beliefs is in effect a penalty for
       holding those beliefs; permitting the state to impose such a penalty would constitute
       an “unconstitutional condition” that would allow the state to indirectly interfere with
       an employee’s constitutional rights in a manner that it could not accomplish directly.

Lane, 490 F.3d at 419-20 (citing, inter alia, Branti v. Finkel, 445 U.S. 507, 513-14 (1980)).

       Despite the costs of patronage dismissals, courts recognize an exception to the general rule;

in certain cases, “party affiliation may be an acceptable requirement for some types of government

employment.” Branti, 445 U.S. at 517. These so-called exempt positions are frequently referred to

as “policymaking,” “inherently political” or “confidential,” although the legal standard for

classifying a position as exempt does not depend on the label. See id. at 518; Summe v. Kenton

County Clerk’s Office, 604 F.3d 257, 265 (6th Cir. 2010) (chief deputy county clerk); Rose v.



                                                  7
                                            No. 10-1992

Stephens, 291 F.3d 917, 924-25 (6th Cir. 2002) (police commissioner); Hoard v. Sizemore, 198 F.3d

205, 214 (6th Cir. 1999) (road foreman).

       The dispositive test is “whether the hiring authority can demonstrate that party affiliation is

an appropriate requirement for the effective performance of the public office involved.” Lane, 490

F.3d at 419 (internal quotation marks and citation omitted); see also Justice v. Pike County Bd. of

Educ., 348 F.3d 554, 559 (6th Cir. 2003). In this regard, we “examine the inherent duties of that

position and the duties that the new holder of that position will perform.” Summe, 604 F.3d at 265

(quoting Baker v. Hadley, 167 F.3d 1014, 1018 (6th Cir. 1999)). This determination does not depend

on the plaintiff’s job duties as performed, but those duties “may nonetheless serve as evidence of the

duties inherent in the position.” Id. (internal quotation marks and citation omitted).

       In McCloud I, this Court “outlined four categories of government positions that will always

qualify for patronage exceptions,” namely:

       (1) those that are specifically named in a relevant statute or that are charged with the
       discretionary authority to carry out the law or other policy of political concern; (2)
       a position to which discretionary decisionmaking of the first category has been
       delegated; (3) confidential advisors who spend a significant amount of their time
       advising category-one employees on how to exercise their statutory policymaking
       authority, or other employees who control the lines of communications to
       category-one employees; and (4) positions filled to balance out party representation.

Summe, 604 F.3d at 265 (citing McCloud I, 97 F.3d at 1557).

       In considering a claim of patronage dismissal in violation of the First Amendment, the Court

looks to the framework first set forth by the Supreme Court in Branti v. Finkel, 445 U.S. 507, 513-14

(1980). See Lane, 490 F.3d at 419. First, the plaintiff must make out a prima facie case that he was

discharged because of political affiliation. See Summe, 604 F.3d at 265. Second, if the plaintiff


                                                  8
                                             No. 10-1992

makes the requisite showing, the burden shifts to the defendant to show that the position “is of a type

that would qualify for an exception to the rule against patronage dismissals.” Id.

        In this case, as to the first question, we find that Plaintiff has presented a prima facie case of

patronage dismissal in violation of the First Amendment. As the district court properly found, “there

is a fact question as to whether [Plaintiff’s expressive] activities were casually related to the adverse

action.” (Dist. Ct. Op. at 14.) The parties dispute the reason for Plaintiff’s termination; Defendant

claims it was due to budget constrains, while Plaintiff asserts that it was politically motivated.

Sufficient evidence exists in the record to support either of these theories. For instance, the

termination letter stated that the layoff was for economic reasons, and indeed other employees were

similarly laid off, but Plaintiff testified as to Defendant’s political animosity towards him, and has

provided other evidence suggesting that the financial picture of the Township was not so bleak.

        Because Plaintiff has presented sufficient facts to support his claim, the burden shifts to

Defendant to show that the position of Director is exempt from First Amendment scrutiny because

political affiliation is an appropriate consideration for the position. See Branti, 445 U.S. at 517.

Having reviewed the record, we conclude that factual disputes prevent resolution of this question as

a matter of law. The record neither discloses the inherent duties of the Director of Constituent

Services, nor the specific responsibilities of the position as envisioned by Defendant. Thus we

cannot conclude that Defendant has “demonstrated that party affiliation is an appropriate requirement

for the effective performance of the public office” of Director of Constituent Services. See id.

        To begin, the record is silent about whether (and if so, how) the Township classifies positions

of public employment, such as the Director. See Rice v. Ohio Dep’t of Trans., 14 F.3d 1133, 1143


                                                    9
                                             No. 10-1992

(6th Cir. 1994) (noting the relevance of official classifications). It is unclear whether the Township

distinguishes between political and nonpolitical employees, or whether some or all of the

Township’s employees are considered to be part of the civil service. Both Plaintiff and Defendant

referred to the “civil service” in their depositions, but the meaning of this phrase is not explained in

the record. (Pl.’s Dep. at 61, 88; Def.’s Dep. at 18.) Plaintiff characterized some employees as part

of the civil service, and Defendant stated that she informed the “Civil Service Personnel Director”

of the reason for Plaintiff’s layoff. (Def.’s Dep. at 18.) The record also suggests that a Civil Service

Commission may have power to create certain positions, but this is similarly unexplained. (Id. at

25, 29.)

        The only suggestion in the record of the Director’s employment classification comes from

an excerpt from the Handbook for Board of Trustees Appointed Employees (“Handbook”). Only one

of twenty-six total pages of the Handbook is contained in the record, but that one page seems to

suggest that the Handbook applies to a subset of employees that are “appointed.” Plaintiff, as

Director, received the Handbook, which would suggest that the Director is an appointed employee.

However, as the district court noted, it is “not entirely clear” that this is the case. (Dist. Ct. Op. at

15 n.3.) The Handbook states that the Supervisor has the authority to terminate an “appointee,”

which the Supervisor purported to do by terminating Plaintiff on February 5, 2009. But this

termination may not have been effective; the Board minutes dated February 25, 2009 list Plaintiff

as the current Director, suggesting that Defendant may have lacked the independent authority to

terminate Plaintiff when she purported to do so weeks earlier.




                                                   10
                                             No. 10-1992

        It is true that the Code defines the qualifications and responsibilities for the position of

Director. But what the Director “actually does” is not clearly defined on in the Code. See Lane, 490

F.3d at 421. The responsibilities in the Code consist of vague, largely undefined descriptions, for

example: 1) “supervision” and “coordination” of departmental services, but not day-to-day

management, 2) “liais[ing]” between the Board and various municipal departments; and 3)

“outreach” on community projects. Though relevant, see Latham v. Office of Att’y Gen. of State of

Ohio, 395 F.3d 261, 268 (6th Cir. 2005), these job descriptions are too vague to be dispositive on

the question of whether political affiliation is necessary for the effective functioning of the position.

It is not even clear whether the Supervisor, or the Board, or both, have the authority to “redefine”

the duties of the Director. See Summe, 604 F.3d at 269 (finding that a deputy county clerk was not

protected from politically motivated dismissal where the duties of the position were “defined

entirely” by the county clerk).

        Without any guidance from the Code, the inherent duties of the position are left to be defined

by the parties, who offer competing, conclusory, and self-interested accounts of the Director’s duties.

The record lacks, for instance, third party affidavits, testimony, or other evidence about the position

that might assist in resolving this question. Defendant argues that the Director “served as the line

of communication between the Township Supervisor, public officials and the members of the public.

He was essentially the eyes and ears of the Township Supervisor with regard to the condition of the

Township roads and other matters.” Plaintiff describes the position more narrowly, testifying that

“a lot” of his role was “fielding complaints from residents.” Yet neither party offers any facts,

beyond their own conclusory testimony, to prove their assertions. To the extent the Director


                                                   11
                                            No. 10-1992

performed “essential services,” as Defendant argues on appeal, those services are ill-defined in the

record and their description rests solely on the statements of the parties.

       Additionally, the record is unclear about how much authority, if any, the Director had to

implement or craft public policy. In fact, the record is devoid of any information about the location,

distribution, and/or delegability of policymaking authority within the Township. See Lane, 490 F.3d

at 421-23 (noting the relevance of these facts).

       The record makes references to the Director’s participation in budget meetings, and other

meetings, for the purpose of being informed about “issues, concerns, programs, projects, everything

that you would meet with a department head about.” Yet it is entirety unclear what the Director

would do at these meetings, or what type of authority, if any, the Director would have to implement

the discussions that took place at the meetings. Although Plaintiff testified, upon Defendant’s

counsel’s questioning, that the Director had discretion in handling constituent complaints, it is

altogether unclear what this means in the context of this case. See Murphy v. Cockrell, 505 F.3d 446,

454 (6th Cir. 2007) (opining that discretion comes in different forms, and not all discretionary

authority is sufficient to bring a position outside of the protections of the First Amendment); Cagle

v. Headley, 148 F. App’x 442, 446 (6th Cir. 2005) (same).

       Relatedly, it is unclear whether (and if so, to what extent) the Director served as a

confidential employee or advisor to the Board, or members thereof, including the Supervisor.

Plaintiff testified that he consulted with the Supervisor, and had numerous interactions with the

Board, but the substance and import of these communications is unclear. The precise nature of the

relationship between Plaintiff and then-Supervisor Handy is also unclear.


                                                   12
                                             No. 10-1992

        Similar to the ambiguous relationship between the Director, Board, and Supervisor is the

uncertainty surrounding the chain of command. See Hall v. Tollett, 128 F.3d 418, 429 (6th Cir.

1997) (noting the relevance of chain of command). Simply stated, it is not clear to whom the

Director reported. The Code does not answer that question. Plaintiff describes the Director as

reporting to a committee and the Board itself. Defendant implies that the Director reports to the

Supervisor by acting as the Supervisor’s direct liaison. Related to this ambiguity is the lack of clarity

surrounding whether the Director had his own staff, and if so, whether he had authority over their

employment. See McCloud v. Testa, 227 F.3d 424, 429 (6th Cir. 2000) (hereinafter “McCloud II”)

(stating that discretionary authority over employees suggests that the position is not subject to

patronage dismissal).

        Based on this record, we hold that Defendant has not carried her burden to show that political

affiliation is an appropriate requirement for the position of Director, “because the duties of [that

position] remain too ill-defined for us to adjudicate the issue as a matter of law.” Lane, 490 F.3d

at 422 (citing McCloud I, 97 F.3d at 1558 (“[I]n the situation where the inherent duties of the

plaintiffs’ positions are not apparent and the facts are not yet fully developed, it is not possible for

us to decide, when reviewing in an interlocutory posture the denial of a motion for summary

judgment, whether a defendant should be granted qualified immunity with respect to those

positions.”)).

        The limited evidence in the record is conclusory, vague, and contradictory, and fails to

“address the actual job functions of the [Director] in the specific and detailed manner that is

necessary for us to decide the legal issue presented in this case.” Id. at 423. Compare Hager v. Pike


                                                   13
                                             No. 10-1992

County Bd. of Educ., 286 F.3d 366, 373 (6th Cir. 2002) (finding that protection against patronage

dismissal applies to an employee who “performs solely ministerial tasks with no policymaking

functions”) with Hoard v. Sizemore, 198 F.3d 205, 214 (6th Cir. 1999) (finding that protection

against patronage dismissal does not apply to a position of which the “nature” is “inherently

political”).

        Because the dispute in this case stems from “obscurities in the facts, not the law,” McCloud

I, 97 F.3d at 1558, we AFFIRM the denial of summary judgment on the basis of qualified

immunity.1

                                           CONCLUSION

        For the reasons set forth above, we conclude that the district court did not err in denying

summary judgment to Defendant on the basis of qualified immunity. The decision below is therefore

AFFIRMED.




        1
          The parties also dispute whether any unlawful conduct violated “clearly established” law.
It is well settled that a right is clearly established if a reasonable official would understand that what
he is doing violates that right. See Harlow, 457 U.S. at 818; Hoover v. Radabaugh, 307 F.3d 460,
468 (6th Cir. 2002). In this case, given the outstanding factual issues described above, Defendant
“cannot prevail at this stage of the litigation by relying upon the deference afforded to reasonable
decisions under the doctrine of qualified immunity.” Lane, 490 F.3d at 422 n.3 (declining to reach
question of whether the law was clearly established where the facts giving rise to the claimed
violation were unclear). Although Defendant may be entitled to qualified immunity “if the illegality
of the[] alleged decision to terminate Plaintiff for his political beliefs was unclear under the law as
it existed at the time,” id., factual issues prevent such a determination at this time. See, e.g.,
McCloud II, 227 F.3d 424.


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