UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DONALD K. PHILLIPS,
Plaintiff-Appellant,

v.
                                                                    No. 95-1295
BARBARA S. NIELSEN, in both her
individual and official capacities,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CA-92-628-3-19)

Argued: March 7, 1996

Decided: October 18, 1996

Before MURNAGHAN and ERVIN, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Reversed and remanded by unpublished opinion. Senior Judge
Butzner wrote the opinion, in which Judge Murnaghan and Judge
Ervin joined.

_________________________________________________________________

COUNSEL

ARGUED: James Lewis Mann Cromer, CROMER & MABRY,
Columbia, South Carolina, for Appellant. Vance J. Bettis, GIGNIL-
LIAT, SAVITZ & BETTIS, Columbia, South Carolina, for Appellee.
ON BRIEF: Craig L. Berman, Waltham, Massachusetts, for Appel-
lant. Ashley B. Abel, EDWARDS, BALLARD, BISHIP, STURM,
CLARK & KEIM, P.A., Spartanburg, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

BUTZNER, Senior Circuit Judge:

In this action, based on 42 U.S.C. § 1983, alleging political retalia-
tion, Donald Kent Phillips, a former employee of the South Carolina
Department of Education, appeals the district court's summary judg-
ment in favor of Barbara Nielsen, the South Carolina Superintendent
of Education. The district court held that Phillips had been discharged
solely because of his party affiliation. The court then concluded that
under Elrod v. Burns, 427 U.S. 347, 367, 375 (1976), and Branti v.
Finkel, 445 U.S. 507, 518 (1980), political affiliation was an appro-
priate requirement for Phillips's position and granted Nielsen's
motion for summary judgment. In an alternative holding, the court
determined that Nielsen was entitled to qualified immunity. We
reverse because the record discloses genuine issues of material fact.

I

We review summary judgment de novo, construing all disputed
facts and reasonable inferences in favor of the nonmoving party.
Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). Summary judgment is appropriate if after examining
the entire record, including all depositions, answers to interrogatories,
admissions, and affidavits, the court concludes that there exists no
genuine issue of material fact. Fed. R. Civ. P. 56(c); see Campbell v.
Hewitt, Coleman & Associates, Inc., 21 F.3d 52, 55-56 (4th Cir.
1994).

In November 1990, Nielsen, a Republican, ran against the Demo-
cratic incumbent, Dr. Charlie Williams, in an election for State Super-

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intendent of Education. Nielsen campaigned on an antibureaucracy
platform, pledging to streamline the Department of Education. Phil-
lips, a Democrat, attended several debates between Nielsen and Wil-
liams. He took annual leave to chauffeur Williams to some campaign
appearances. Mary Jackson Willis, who later became one of Nielsen's
top-ranking advisors and Phillips's boss, saw Phillips at one of those
appearances. Phillips put up signs for Williams and made a financial
contribution to his re-election campaign.

Nielsen won the election and took office in January 1991. She
immediately began implementing her campaign promise to restructure
the Department. The top echelon of the Department under Williams
consisted of several Deputy Superintendents of Education who
reported directly to the Superintendent. The Deputy Superintendents
supervised a level of Associate Superintendents, including Phillips,
who in turn supervised a lower level of directors. Beginning in Janu-
ary 1991, Nielsen eliminated both the deputy superintendent and the
associate superintendent positions. The former deputy and associate
superintendents, including Phillips, were given jobs within the
Department as interim "Special Assistants." Phillips, in his new posi-
tion as Special Assistant had no substantial responsibilities, but he
suffered no loss of pay.

Nielsen then decided to create seven new Senior Executive Assis-
tant positions to assume the responsibilities that had previously been
fulfilled by the Deputy and Associate Superintendents. Phillips sub-
mitted applications for three Senior Executive Assistant positions but
was not selected. Nielsen did not select any of the individuals who
had served as Deputy and Associate Superintendents under Williams.

By early June 1991, Phillips was experiencing increasing levels of
job-related stress, which had the potential to exacerbate his existing
heart condition. He also realized that he would lose retirement bene-
fits if he waited to retire until after June 30, 1991. After numerous
unsuccessful attempts to meet with Nielsen to discuss his future job
prospects, Phillips submitted notice that he was retiring from the
Department as of June 30, 1991.

Phillips, claiming constructive discharge, brought this suit against
Nielsen in both her individual and official capacities. He alleged that

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Nielsen's conduct violated the First and Fourteenth Amendments.
Nielsen denied the complaint's allegations and filed a motion for
summary judgment alleging that even if Phillips were constructively
discharged, his discharge was lawful because he was a policymaker
or confidential employee. Alternatively, Nielsen contended that she
was entitled to qualified immunity because it was not clearly estab-
lished in 1991 that an Associate Superintendent for Instruction was
not a policymaker.

Phillips introduced the deposition testimony of Warner Montgom-
ery, a consultant who worked on Nielsen's reorganization strategy.
Montgomery testified that Nielsen told him on several occasions that
she planned to get rid of "Charlie's Boys," who had "worked against
her":

          She told me . . . when we had our first conversations before
          I started to work, that it was not anything that I had to worry
          with, that most of them [Charlie's Boys] had been reas-
          signed and they would not be involved in anything and I
          was not to worry about it, but that it was her intention that
          they would not be part of the new organization, and she let
          me know that right off. . . .

Montgomery also testified that Nielsen compiled a list, known as the
"Banana List," which included the names of many of "Charlie's
Boys." Nielsen told Montgomery not to contact or discuss the reorga-
nization with any individual on the list. Phillips's name was on the
list. Nielsen testified that she had no recollection of preparing this list.

II

The parties stipulated that for the purposes of summary judgment
Phillips was constructively discharged. After a hearing, the magistrate
judge determined that because Phillips sought only monetary relief,
his claim against Nielsen in her official capacity was barred. See Will
v. Michigan Department of State Police, 491 U.S. 58, 70-71 (1989).
Phillips has not appealed this ruling.

In her motion for summary judgment, Nielsen argued that Phillips
lawfully could be discharged because of his political affiliation. She

                     4
relied on Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel,
445 U.S. 507 (1980). The district court granted Nielsen's motion and
dismissed the case. It held that the facts demonstrated that Phillips
was a person who could be discharged under Elrod-Branti. The court
alternatively held that Nielsen was entitled to qualified immunity
because it was not clearly established that a person in Phillips's posi-
tion could not be dismissed under Elrod-Branti .

III

It is well established that an individual is not stripped of his First
Amendment rights simply because he is employed by a local, state,
or federal government body. "Absent some reasonably appropriate
requirement, government may not make public employment subject
to the express condition of political beliefs or prescribed expression."
O'Hare Truck Service, Inc. v. City of Northlake , 116 S. Ct. 2352,
2357 (1996). In fashioning legal standards for evaluating which
restrictions are "reasonably appropriate" the Supreme Court has
charted a course along two lines of inquiry: the Elrod-Branti standard
for discrimination based on party affiliation and a balancing test for
discrimination based on political speech. See Pickering v. Board of
Education, 391 U.S. 568 (1968); Connick v. Myers, 461 U.S. 138, 147
(1983); Givhan v. Western Five Consolidated School Dist., 439 U.S.
410, 415-16 (1979).

Political affiliation is a legitimate employment criterion only if the
employee occupies a position for which affiliation is "an appropriate
requirement for the effective performance of the public office
involved." Branti, 445 U.S. at 518. This classification includes poli-
cymakers. Under the relatively flexible Pickering-Connick-Givhan
standard, a court must balance "the interests of the [public employee],
as a citizen, in commenting on matters of public concern and the
interest of the State, as an employer, in promoting the efficiency of
the public services it performs through its employees." Pickering 391
U.S. at 568.

The primary issue in this type of employment case is the motive
of the employer that prompted the constructive discharge. This court
has issued the following instruction for resolution of a case alleging
unlawful political discharge: "First,[if] the evidence raises genuine

                     5
issues as to the actual reason for an employee's discharge, that moti-
vational issue must of course be resolved by the trier of fact. On that
resolution, all else turns." Jones v. Dodson , 727 F.2d 1329, 1337 (4th
Cir. 1984). The evidence discloses a genuine issue of material fact
pertaining to Nielsen's motive for Phillips's constructive discharge. In
her motion for summary judgment she alleged that Phillips, a Demo-
crat, could be "lawfully dismissed because of his political affiliation."
Relying on Branti, she claimed that Phillips's "party affiliation is an
appropriate requirement for the effective performance of the public
office" he held. Branti, 445 U.S. at 518.

Shortly after Phillips filed this action, Nielsen issued a press
release which she intended to be a rebuttal to Phillips's allegations
that he was constructively discharged because of his political affilia-
tion and support of Williams. In the press release, Nielsen emphasized
that her office was staffed without regard to political affiliation. She
also asserted that some of the present top employees were Democrats.
Her press release contained the following statements:

           The campaign ended in November, 1990. Period. My
          transition team was filled with Democrats and Republicans
          and I have never--NEVER--made hiring or promotion
          decisions based on politics. My restructuring and consider-
          ation were approved every step of the way by state person-
          nel officers.

           My senior staff and office directors do include people
          who agree with my educational philosophy and agenda. This
          is an elected office so that's no surprise. But some of these
          jobs also are filled by people who worked for, and cam-
          paigned hard for, my predecessor and who worked for and
          campaigned for former Democratic governors and Demo-
          cratic candidates. I'm also sure that some of these top Edu-
          cation staffers are Democrats, but I have never asked them
          because it's not important. Some of these jobs are filled by
          people who are NOT politically active.

On this summary judgment record it is difficult to reconcile the
statements Nielsen authorized in her motion with the statements she
made in her press release, and we are left with the conclusion that

                     6
there exists a genuine issue of material fact about Nielsen's motive.
Our ruling today, however, pertains to summary judgment, and it is
not intended to be pre-emptive. Perhaps Nielsen will be able to
amplify her statements and clarify her meaning when the case is tried
before a jury on remand.

Nielsen's alternative claim that she is entitled to qualified immu-
nity under Elrod-Branti principles suffers the same defects. The stan-
dard for application of the doctrine of qualified immunity is the
"objective reasonableness of an official's conduct with reference to
clearly established law." Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). It is not likely that a reasonable public employer would claim
the need of compatible political affiliation on the part of an employee
while at the same time disavowing political affiliation as a criterion
for employment.

IV

The district court held that Phillips's evidence was insufficient to
prove a violation of the First Amendment in retaliation for political
speech, i.e., his support of Nielsen's opponent. Phillips controverts
this finding in good faith, citing Montgomery's testimony, the "ba-
nana list," and Willis's knowledge of his help for Williams in the
campaign. He emphasized the inferences that can be drawn in his
favor from this evidence. We need not express, however, any opinion
on this issue inasmuch as we have denied Nielsen's motion for sum-
mary judgment on other grounds. Phillips did not move for summary
judgment, standing instead on his demand for a jury. Any expression
of opinion, under these circumstances, would be dicta. When the case
is tried, Phillips can present this claim.

We conclude that an opinion on another issue would be premature
because the record with respect to South Carolina law has not been
sufficiently developed. Phillips claims that he cannot be discharged
because he was a career employee under South Carolina law, not a
political appointee. Nielsen contends that federal, not state, law con-
trols for First Amendment purposes. Both parties have cited numerous
cases, none of which is precisely on point. The futility of assessing
these arguments is that Phillips was transferred from one position to
another without a reduction in pay. The parties have presented no

                    7
information on the question whether this transfer, allegedly a part of
a departmental reorganization, is prohibited by South Carolina civil
service law.

We have accepted for all other aspects of this summary judgment
proceeding the parties' stipulation that Phillips was constructively dis-
charged. This stipulation by its terms will not be effective at the trial
for which we have remanded the case. We decline to accept this stipu-
lation with respect to Phillips's civil service status after he was trans-
ferred, which involves a question of law. See Estate of Sandford v.
Commissioner, 308 U.S. 39, 51 (1939). We believe the prudent course
is to await further development of this issue on remand.

We dismiss without prejudice Phillips's assignment of error con-
cerning the district court's exclusion in the summary judgment pro-
ceedings of Richard Gergel's letter.

REVERSED AND REMANDED

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