                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0796n.06

                                           No. 09-5441

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                 FILED
HAROLD LYNN WOLFE,                               )                            Dec 16, 2009
                                                 )                      LEONARD GREEN, Clerk
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )   ON APPEAL FROM THE UNITED
                                                 )   STATES DISTRICT COURT FOR THE
ESCO JARNIGAN,                                   )   EASTERN DISTRICT OF TENNESSEE
                                                 )
       Defendant-Appellant.                      )



       Before: GUY, SUTTON and GRIFFIN, Circuit Judges.


       SUTTON, Circuit Judge. At stake in this § 1983 free-speech retaliation action is whether

Hamblen County Sheriff Esco Jarnigan refused to promote Harold Wolfe because Wolfe supported

Jarnigan’s opponent in the 2006 election. The district court denied Jarnigan qualified immunity at

the summary judgment stage, and we affirm.


                                                I.


       Wolfe worked as a Hamblen County patrol deputy, detective and eventually chief detective

until his patrol cruiser crashed into “a large lighted sign” in December 2000. R.26 Ex. 2 at 1. The

force of the accident ejected Wolfe from the cruiser, putting him in a coma for several days. He

pleaded guilty to driving while impaired and resigned from his job.
No. 09-5441
Wolfe v. Jarnigan

       Wolfe returned to the Sheriff’s Department in July 2005, when then-Sheriff Otto Purkey

hired him as a jail deputy. Wolfe broached the idea of being allowed to resume his patrol deputy or

detective duties, but Purkey told him he would have to serve as a jail deputy for at least a year before

he would consider the request.


       In 2006, when Purkey ran for re-election, Jarnigan ran against him on a platform that

included eliminating costly mismanagement and legal liabilities, such as dangerous behavior by

patrol deputies. As part of the campaign, Jarnigan distributed mailers highlighting Wolfe’s rehiring

as an example of Purkey’s mismanagement. Wolfe openly supported Purkey’s re-election, as he had

in the past. Jarnigan won the race and became Sheriff in September 2006.


       After Jarnigan became Sheriff, Wolfe took the patrol deputy exam. He consistently scored

higher than the other applicants, but the Hamblen County civil service rules allowed Jarnigan to

promote any of the five highest-scoring test-takers. Invoking that discretion, Jarnigan promoted

other (lower-scoring) candidates whenever a patrol deputy position opened up. Jarnigan offered to

promote Wolfe to jail sergeant if he would take the necessary test. But Wolfe declined the offer

because that promotion would make him temporarily ineligible for a patrol position.


       Wolfe claims that Jarnigan told him on several occasions that he would have received the

promotion but for his support of Purkey in the election. Hoping to capture this on tape, Wolfe

secretly recorded a conversation with Jarnigan. But Jarnigan never mentioned Wolfe’s support of

Purkey during the conversation; he instead told Wolfe that he would not promote him to patrol


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Wolfe v. Jarnigan

deputy because Wolfe had betrayed the public trust and promoting him would hurt Jarnigan’s re-

election chances.


        In January 2008, Wolfe filed this § 1983 action against Jarnigan, raising a First Amendment

retaliation claim (and a due process claim not at issue in this appeal). Jarnigan moved for summary

judgment on qualified-immunity grounds, and the district court denied the motion in relevant part.


                                                  II.


                                                  A.


        To overcome a qualified-immunity defense, a claimant must show (1) that the defendant

violated a “constitutional right” and (2) that the right “was clearly established” at the time. Pearson

v. Callahan, ___ U.S. ___, 129 S. Ct. 808, 815–16 (2009) (quotation marks omitted). Because this

comes to us at the summary judgment stage, we give the non-movant—Wolfe—the benefit of all

reasonable factual inferences. See Harris v. City of Circleville, 583 F.3d 356, 364 (6th Cir. 2009).


       To prove retaliation, a plaintiff must show (1) that he engaged in protected conduct; (2) that

the defendant took an adverse action against the plaintiff that “would deter a person of ordinary

firmness from continuing to engage” in the protected conduct; and (3) that the adverse action “was

motivated at least in part by the plaintiff’s protected conduct.” Sowards v. Loudon County, 203 F.3d

426, 431 (6th Cir. 2000). If the plaintiff makes this showing, the burden shifts to the defendant to

prove the harmlessness of the retaliation: that, even if Jarnigan had an impermissible motive, he


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Wolfe v. Jarnigan

would have taken the same adverse action against Wolfe “in the absence of the protected conduct.”

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); see also Sowards, 203

F.3d at 431.


        Jarnigan’s appeal focuses on the last question—the Mt. Healthy question. A jury, he says,

could not find that he would have promoted Wolfe but for his support of Purkey in the 2006 election

in view of Wolfe’s 2000 accident. But Jarnigan did not present this Mt. Healthy defense below—not

in his answer, not in his motion to dismiss, not in his motion for summary judgment. He instead

challenged Wolfe’s ability to satisfy the third prong of the prima facie case, arguing that Wolfe never

showed that Jarnigan’s promotion decision was motivated in part by Wolfe’s support of Purkey. By

not raising this Mt. Healthy defense below, Jarnigan forfeited the right to raise it on appeal. See

Armstrong v. City of Melvindale, 432 F.3d 695, 700 (6th Cir. 2006). Enforcing this forfeiture rule

ensures that parties have “the opportunity to offer all the evidence they believe relevant” before

potentially losing at the summary judgment stage. Singleton v. Wulff, 428 U.S. 106, 120 (1976).


       Enforcing this rule in the context of an interlocutory appeal has another virtue: It permits

meaningful review of an appeal based on the current record. The district court did not have an

opportunity to evaluate the record with an eye towards Jarnigan’s Mt. Healthy defense. It may have

overlooked, or simply decided not to mention, certain record-supported facts or inferences relevant

to the Mt. Healthy question but irrelevant to the issues before it.




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       One aspect of Jarnigan’s newly raised Mt. Healthy defense, it is true, overlaps in part with an

argument he made below. Jarnigan noted that Tenn. Code Ann. § 38-8-106 prohibits Wolfe from

serving as a patrol officer due to his DWI conviction and that this statute provides an “[a]dditional[]”

reason for granting summary judgment. R.25 at 9. In pointing to this statute below, however,

Jarnigan argued only that it made Wolfe’s § 1983 claim “moot,” and, even then, he did so only after

ending his argument that Wolfe “ha[d] not alleged the deprivation of a constitutional right.” R.25 at

9–10; see also R.10 at 3, 6 (treating § 38-8-106-based dismissal and qualified immunity as distinct

grounds for Rule 12(b)(6) dismissal). To say that § 38-8-106 moots Wolfe’s claim is hardly the same

thing as saying that it supports an argument—the Mt. Healthy defense—never made.


                                                  B.


       Jarnigan also claims that the district court improperly allowed Wolfe to defeat summary

judgment by filing an affidavit, after Jarnigan moved for summary judgment, that contradicted his

deposition testimony and thus created “a sham issue of fact.” Aerel, S.R.L. v. PCC Airfoils, L.L.C.,

448 F.3d 899, 908 (6th Cir. 2006). We review the district court’s decision to entertain or reject

affidavits on this ground for abuse of discretion. Id. at 906.


       The targeted affidavit says that Jarnigan told Wolfe “several times” that he would not promote

Wolfe to a road deputy position because Wolfe “supported Sheriff Purkey in 2006.” R.31 at 2. Yet,

Jarnigan argues, Wolfe did not make this claim at his deposition, saying only that Jarnigan told him




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 Wolfe v. Jarnigan

seven or eight times that he would not promote Wolfe for “political reasons,” R.26 Ex. 1 at 52–53,

which could mean that Jarnigan would not promote him because it would hurt his re-election chances.


        The problem with this claim is again one of preservation. We cannot review whether the

district court abused its discretion because Jarnigan never asked the district court to exercise that

discretion. He did not file a motion to strike the affidavit before the district court or otherwise argue

that it could not be considered. Cf. Aerel, 448 F.3d at 906. And while he called the affidavit

“disingenuous at best and outright false at worst” in his reply brief below, R.34 at 4, his brief never

cites any of our cases discussing sham affidavits and never squarely asks the district court to strike

the affidavit or otherwise disregard it. It instead asks the district court to weigh the affidavit against

the other record evidence—or, at least, that is how the district court (reasonably) construed Jarnigan’s

argument. By not squarely objecting below through either a motion to strike or a properly presented

objection in his reply brief, Jarnigan wavied his right to object on appeal. See Wiley v. United States,

20 F.3d 222, 226 (6th Cir. 1994).


                                                   C.


        Jarnigan next claims that Wolfe cannot sue him in his individual capacity for official acts

taken as Hamblen County Sheriff. We disagree, as does the Supreme Court. See Hafer v. Melo, 502

U.S. 21, 31 (1991). Jarnigan is subject to suit under § 1983 only because he acted under color of state

law, and the critical factor that makes him subject to suit under § 1983 cannot simultaneously insulate

him from liability. Id. at 27–28. Adopting Jarnigan’s view, which would disallow almost all


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 Wolfe v. Jarnigan

individual-capacity suits under § 1983, would also eliminate money damages as a remedy for

constitutional violations by State officials. See Edelman v. Jordan, 415 U.S. 651, 667–68 (1974)

(holding plaintiffs cannot collect money damages in § 1983 official-capacity suits against State

officials).


                                              III.


        For these reasons, we affirm.




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