                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 14a0155n.06

                                    No. 13-5485

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                                                                             FILED
                                                                         Feb 26, 2014
                                                                     DEBORAH S. HUNT, Clerk

Robert Bean, et al.,                          )
                                              )       ON APPEAL FROM THE UNITED
      Plaintiffs-Appellees,                   )       STATES DISTRICT COURT FOR
                                              )       THE EASTERN DISTRICT OF
v.                                                    TENNESSEE
                                              )
Steven Teague, et al.,                        )
                                              )
      Defendants-Appellants.                  )       OPINION
                                              )


BEFORE:    CLAY and DONALD, Circuit Judges; MAYS, District Judge.*


      Samuel     H.     Mays,   District     Judge.      Defendants-Appellants,

Steven    Teague      (“Teague”),     individually       and    in    his   official

capacity as the Monroe County Road Superintendent, and Monroe

County, Tennessee (“Monroe County”), appeal the district court’s

denial    of    their     motion    for    summary    judgment,      in   which    they

asserted       Teague’s     qualified      immunity.       Plaintiffs-Appellees

contend    that    this     Court    has    no    jurisdiction       to   review   the

district court’s interlocutory decision.                We agree.




      *
       The Honorable Samuel H. Mays, Jr., United States District Judge for the
Western District of Tennessee, sitting by designation.
No. 13-5485
Bean et al. v. Teague et al.

                                                 I.

       Plaintiffs-Appellees filed their complaint against Teague

and Monroe County on October 15, 2010.                                Plaintiffs-Appellees

filed an amended complaint on November 5, 2011.                                They alleged

that Defendants-Appellants violated 42 U.S.C. § 1983 by: (1)

terminating or refusing to rehire the Plaintiffs-Appellees in

retaliation for their political associations in violation of the

First Amendment; and (2) depriving the Plaintiffs-Appellees of

their      reasonable           expectation       of    future       employment      with   the

Monroe       County       Road     Department           (the     “Road   Department”)        in

violation of the Fourteenth Amendment’s Due Process Clause.

       Defendants-Appellants                   filed     their       motion    for     summary

judgment on January 8, 2013, contending that: (1) Plaintiffs-

Appellees could not establish a case of retaliation; (2) Teague

would have terminated their employment                           even    if they had not

engaged       in    protected           activity;      (3)     Teague    was   entitled      to

qualified immunity; and (4) Plaintiffs-Appellees could not show

that        Defendants-Appellants                 violated           Plaintiffs-Appellees’

substantive or procedural due process rights.

       The district court denied Defendants-Appellants’ motion for

summary judgment on April 3, 2013.                       The district court concluded

that: (1) there was a material factual dispute about Teague’s

motivation         for         firing     or     refusing       to    rehire      Plaintiffs-

Appellees; (2) Teague was not entitled to qualified immunity for

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Bean et al. v. Teague et al.

that reason; and (3) Monroe County could be liable for Teague’s

actions.        Defendants-Appellants timely filed this interlocutory

appeal      based      on      the   district       court’s       denial    of      qualified

immunity.

                                              II.

       The Road Department is responsible for maintaining at least

seven-hundred-sixty             (760)    miles       of    road     in     Monroe      County,

Tennessee.         Phillip Axley (“Axley”) was the Monroe County Road

Superintendent from September 1, 2002, through August 31, 2010.

At   the     general        election    on    August      3,     2010,   Teague       defeated

Axley.      Teague became Road Superintendent on September 1, 2010.

       Monroe        County      employed      Plaintiffs-Appellees              as     manual

laborers.         They were not in policymaking positions.                        They were

active supporters during Axley’s campaign.                           Plaintiff-Appellee

Robert Bean talked to people about voting for Axley.                                   Teague

observed Plaintiffs-Appellees Carl Bivens, David Cline, Jimmy

Cline,      Gary     Freeman,        Ralph   Moser,       Michael    Moser,      and    Donny

Wattenbarger handing out Axley campaign literature at the polls.

Plaintiffs-Appellees             Jimmy       Cline,       Gary    Freeman,       and    Donny

Wattenbarger spoke to Teague while they worked the polls for

Axley.        Plaintiff-Appellee Malchiah Bivens supported Axley in

his 2002 campaign against Teague’s father, Ralph Teague, and in

Axley’s 2010 campaign against Teague.                          Plaintiff-Appellee James

T. Bryant displayed Axley’s campaign signs in his yard, placed

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Bean et al. v. Teague et al.

Axley bumper stickers on his car, and spoke with friends about

Axley.      Plaintiff-Appellee Robert Couch filled in for Axley poll

workers on election day.                   Plaintiffs-Appellees Charles Gibbons

and Floyd Shaffer worked the polls for Axley on election day.

Teague introduced himself to Gibbons at the polls that day.

Plaintiff-Appellee              Joel   Hollingshead       talked     to   people   about

Axley and took yard signs to supporters on request.                            Plaintiff-

Appellee Sam Smith                spoke to people about Axley.                 Plaintiff-

Appellee William Stewart, III attended rallies for Axley.

       Teague developed concerns about the financial condition of

the     Road     Department         during      the   election.       Teague     had   no

firsthand knowledge of the financial condition of the Department

before assuming office.

       Axley       testified        that     the      number    of   Road      Department

employees in August 2010 was in the middle to high thirties.                           He

testified that he had at most forty (40) employees.

       Teague posted a letter at the Road Department some time

after the election.                 The letter stated that            Road Department

employees         were         required    to    apply    for      jobs   in     Teague’s

administration by August 20, 2010.                     A stack of applications was

provided.         Ten (10) Plaintiffs-Appellees submitted applications

(the “Applicants”).1                The Applicants were: Robert Bean, Carl


1
  Defendants-Appellants initially stated that only nine Plaintiffs submitted
applications.    Plaintiff-Appellee James T. Bryant testified that he had

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No. 13-5485
Bean et al. v. Teague et al.

Bivens, Malchiah Bivens, James T. Bryant, Robert Couch, Gary

Freeman, Joel Hollingshead, Floyd Shaffer, Sam Smith, Jr., and

Donny     Wattenbarger.               Seven     (7)     Plaintiffs-Appellees         did    not

submit applications (the “Nonapplicants”).2                           The Nonapplicants

were: David Cline, Jimmy Cline, Charles Gibbons, Joseph McNabb,

Michael Millsaps, Ralph Moser, and William Stewart, III.

       Axley      issued       separation        notices    (“Notices”)       to    all    Road

Department employees on August 31, 2010.                            The Notices stated

that the separation was “permanent” and due to “lack of work.”

Axley      testified           that    he      issued    the     Notices     so    the     Road

Department employees would receive unemployment if they were not

rehired.          The    parties        dispute       whether    Axley     fired    the    Road

Department employees when he issued the Notices.

       The Road Superintendent is the primary decision maker for

Road Department employment.                      Teague reviewed applications and

conducted        interviews           during    August     2010.     Teague        could    not

officially hire anyone until September 1, 2010.                               None of the

Plaintiffs-Appellees was rehired on or after September 1, 2010.

       Teague hired ten (10) new employees on September 1, 2010.

They     were:      James       Ronald      Thomas,      Barry    West,    Misty    Brannon,

Patricia       Teague,         Matthew      Cansler,     Joshua    Harris,    Chuck       Hunt,

submitted an application.      Defendants-Appellants agreed for purposes of
summary judgment and admitted in their appellate brief that Bryant had
applied.
2
  Jacquleen Axley was initially a plaintiff in this case. Jacquleen Axley did
not submit an application.    She voluntarily dismissed her claims after the
district court denied Defendants-Appellants’ motion for summary judgment.

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No. 13-5485
Bean et al. v. Teague et al.

Norman Nichols, Robert Rodgers, and Larry Valentine.                               When he

hired them, Teague knew that Patricia Teague, Barry West, and

Robert Rodgers had supported him politically.

       Teague had hired two (2) other new employees, Bass Ledford

and Ralph Martin, by September 7, 2010.                       When Teague hired Bass

Ledford, Teague knew that Ledford had supported him politically.

Bass Ledford had worked for Teague’s father, Ralph Teague, when

Ralph Teague was the Road Superintendent.

       Teague       rehired      fourteen      (14)    employees     on    September     1,

2010.      A majority of those employees had worked for Ralph Teague

when he was Road Superintendent.

       Plaintiffs-Appellees Robert Bean, James T. Bryant, Raymond

Cline, Jimmy Cline, Robert Couch, Gary Freeman, Charles Gibson,

Joseph      McNabb,      Michael      Millsaps,       Ralph   Moser,      Floyd    Shaffer,

Samuel Smith, Jr., William Stewart, III, and Donny Wattenbarger

reported to work at the Road Department on September 1, 2010.

They spoke with Teague and recorded the conversation.                                Teague

told them he had not fired them.                      He said he did not have any

work for them, but he would notify them if he could employ them.

There is no evidence Teague said anything about the financial

condition of the Road Department.

       The parties dispute whether the Road Department’s financial

condition        was    dire     on   September       1,   2010.       Axley      requested

$3,900,000.00          in      his   annual    budget      because   that      amount   was

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Bean et al. v. Teague et al.

enough      to    “get     by.”          The    Road     Department     budget      had   been

approved by the State of Tennessee before September 1, 2010.

There was a positive balance in the Road Department’s budget of

$803,838.29 on September 1, 2010.                        There was a negative balance

of $115,452.37 on September 30, 2010.                          Teague applied for and

received a $500,000.00 tax anticipation note from the State of

Tennessee.            He       had    reduced    the     number    of   Road      Department

employees to seventeen (17) by the end of 2010.                                   Plaintiffs-

Appellees filed the complaint in this action after Teague failed

to employ them.

                                                III.

       “[A]       district           court’s    denial    of   a   claim     of    qualified

immunity, to the extent that it turns on an issue of law, is an

appealable ‘final decision’ within the meaning of 28 U.S.C. §

1291 . . . .”              Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

“[A] qualified immunity ruling [] is                        . . . a legal issue that

can be decided with reference only to undisputed facts and in

isolation from the remaining issues of the case.”                                 Id. at 529

n.10.         A    district           court’s    determination        that   the     summary

judgment record raises a genuine issue of fact about the merits

of a constitutional claim is not a “final decision” for purposes

of appeal.          Johnson v. Jones, 515 U.S. 304, 313 (1995); Canter

v. Cnty. Of Otsego, 14 F. App’x 518, 521 (6th Cir. 2001).



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No. 13-5485
Bean et al. v. Teague et al.

       This Court reviews the application of qualified immunity de

novo.      Holzemer v. City of Memphis, 621 F.3d 512, 519 (6th Cir.

2010).      There are two criteria for analyzing qualified immunity:

(1) whether “the facts that a plaintiff has . . . shown (Rules

50, 56) make out a violation of a constitutional right”; and (2)

“whether       the     right         was     clearly     established.”               Pearson      v.

Callahan, 555 U.S. 223, 232 (2009) (quotation marks omitted)

(citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).3                                 “Only if a

defendant       raises         a    purely     legal    argument        under    .    .    .     this

analysis        may     [this         Court]        exercise     jurisdiction             over    an

interlocutory appeal from a denial of summary judgment in a

qualified immunity case.”                    Canter, 14 F. App’x at 522.

       Monroe County argues that its liability is “inextricably

intertwined” with Teague’s because, if Plaintiffs-Appellees fail

to   show     that     their         constitutional          rights   were      violated,        the

appeal      necessarily            resolves     the    pendent    claim      against        Monroe

County.        Mattox v. City of Forest Park, 183 F.3d 515, 523-24

(6th Cir. 1999).

       The principal constitutional issue in this case is whether

Teague      retaliated             against    Plaintiffs-Appellees           for      exercising

their      First      Amendment            rights     when     Teague     terminated           their


3
  The Supreme Court has held that: “The judges of the district courts and the
courts of appeals should be permitted to exercise their sound discretion in
deciding which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case at
hand.” Pearson, 555 U.S. at 236.

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No. 13-5485
Bean et al. v. Teague et al.

employment         or     refused      to    rehire       them.        To    establish    a

retaliation claim, a plaintiff must prove: “(1) that there was

constitutionally-protected                 conduct;      (2)    an   adverse    action   by

defendants sufficient to deter a person of ordinary firmness

from continuing to engage in that conduct; and (3) a causal

connection between the first and second elements––that is, the

adverse action was motivated at least in part by plaintiff’s

protected conduct.”              Eckerman v. Tenn. Dep’t of Safety, 636 F.3d

202,      207      (6th        Cir.   2010).          “A       plaintiff      successfully

demonstrates a causal connection between the adverse action and

the    protected         conduct      by    offering       direct    or     circumstantial

evidence indicating that the protected conduct was a substantial

or     motivating         factor      behind       the     adverse        action   against

plaintiff.”         Id. at 208.        “If the plaintiff meets his burden of

establishing         retaliation,          the   burden    shifts     to    defendants   to

prove by a preponderance of the evidence that the employment

decision would have been the same absent protected conduct.”

Id. (internal quotations marks omitted).4                       “[S]ummary judgment is

warranted if, in light of the evidence viewed in the light most

favorable to the plaintiff, no reasonable juror could fail to

return a verdict for the defendant.”                     Id.



4
  “Unlike the burden-shifting analysis in Title VII cases, if the defendants
meet their burden,” the plaintiff is not permitted to show pretext.
Eckerman, 636 F.3d at 208 n.4.

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No. 13-5485
Bean et al. v. Teague et al.

                                                IV.

       Teague argues that his actions were reasonable given the

financial        condition        of    the    Road     Department      when     he    became

Superintendent.            Plaintiffs-Appellees argue that the Court does

not have jurisdiction because Teague’s challenge to the district

court’s finding that there is a disputed issue of material fact

about Teague’s motivation is a challenge to the “correctness of

the district court’s conclusion regarding the sufficiency of the

evidence supporting plaintiffs’ . . . claims.”                             Canter, 14 F.

App’x at 523.           Teague’s actual motivation is a question of fact

and is not reviewable on interlocutory appeal.                                 Johnson, 515

U.S. at 313; Hoard v. Sizemore, 198 F.3d 205, 220 (6th Cir.

1999).

       The      district        court    found      that      “[t]he    most    simple    and

obvious material dispute is the reason why Mr. Teague either

fired or refused to rehire the Plaintiffs. The Defendants’ state

of mind is a fact [] for the jury, not the Court, to resolve.”

Defendants-Appellants’ argument that Teague’s failure to rehire

Plaintiffs-Appellees               was        reasonable        based     on     the     Road

Department’s finances is an attempt to “transform the factual

issue      of    motivation        into       the     legal    question    of     objective

reasonableness.”               Hoard, 198 F.3d at 218.            To decide motivation

would require the district court to “resolve the factual dispute

underlying the constitutional claim.”                         Id. at 217.        This Court

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Bean et al. v. Teague et al.

explicitly        rejected        that     approach    in   Hoard:         “As       long    as

plaintiffs produced evidence that could support a finding that

[the defendant] discharged them on the basis of their political

affiliation, the district court was obligated under Crawford-El

to deny [the defendant’s] motion for summary judgment.”                               Id. at

219 (citing Crawford-El v. Britton, 523 U.S. 574 (1998)).

       “The      district        court’s     finding   that      there    is     a    factual

dispute as to [the defendant’s] motivation, in turn, deprives

this court of appellate jurisdiction . . . .”                       Id.     That finding

involves an issue of evidentiary sufficiency.                           If the district

court     “clearly         stated    the     fact   that    it   believed        to    be    in

dispute”       was     a       defendant’s    motivation,        this     Court       has    no

jurisdiction to consider the sufficiency of plaintiff’s evidence

about that motivation.              Id. at 220.

       Teague also argues that the Nonapplicants cannot succeed on

their retaliation claim because they did not apply to work in

the     Teague       administration.            The    record      does     not       clearly

establish that the Nonapplicants knew they had to reapply for

jobs they already had, or that they had the opportunity to do

so.      Teague claims to have imposed a deadline of August 20,

2010, to apply for positions in his administration by having a

flyer posted in the Road Department, although he had no legal

authority to hire anyone until September 1, 2010.                              The record

does not establish when or where Teague’s flyer was posted.                                 The

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No. 13-5485
Bean et al. v. Teague et al.

record does not establish that all of the Nonapplicants saw or

should      have      seen       the    flyer.         It     is     unclear       whether      the

Nonapplicants knew they would be terminated on August 31, 2010,

eleven days after Teague’s proclaimed application deadline, and

thus whether they had notice that they would be required to

reapply for their non-policymaking jobs in the Road Department.

Like     Teague’s        motivation        in    rejecting          the    Applicants,         fact

issues pervade the Nonapplicants’ retaliation claims.

       The district court clearly stated that there was a material

factual       dispute          about      Teague’s      motivation          for        terminating

Plaintiffs-Appellees or refusing to rehire them.                                 This Court has

no jurisdiction over Teague’s appeal of the denial of summary

judgment.

                                                 V.

       Monroe       County        argues     that      this        Court    should       exercise

pendent       appellate          jurisdiction         over    its     appeal       because       the

issues raised in Teague’s appeal are inextricably intertwined

with     Monroe       County’s.            Because      this       Court        does    not    have

jurisdiction          to       consider     Teague’s         appeal,       we    cannot       assert

pendent jurisdiction over Monroe County’s appeal.

                                                VI.

       The district court found that there was a material factual

dispute about Teague’s motivation in firing or failing to rehire

Plaintiffs-Appellees.                  This Court has no jurisdiction to review

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No. 13-5485
Bean et al. v. Teague et al.

the district court’s decision.             This Court cannot assert pendent

jurisdiction           over    Monroe   County.      Defendants-Appellants’

interlocutory appeal is DISMISSED for lack of jurisdiction and

the case is REMANDED for further proceedings.




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