UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOSEPH MICHAEL DONOVAN COOPER,
Plaintiff-Appellee,

v.

LEE COUNTY BOARD OF SUPERVISORS,
Defendant-Appellant,

and

MARTY JAY HENSLEY, Individually
and in his capacity as a member of
the Lee County Board of
Supervisors; JAMES WILLIAM
                                                          No. 98-2083
SUTPHIN, III, Individually and in his
capacity as a member of the Lee
County Board of Supervisors;
DONALD MERLE WILLIAMS,
Individually and in his official
capacity as a member of the Lee
County Board of Supervisors;
TIMOTHY WAYNE BELCHER,
Individually and in his capacity as a
member of the Lee County Board
of Supervisors,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Big Stone Gap.
James P. Jones, District Judge.
(CA-96-264-B)

Argued: April 7, 1999

Decided: August 19, 1999
Before WILKINSON, Chief Judge, and
HAMILTON and WILLIAMS, Circuit Judges.

_________________________________________________________________

Reversed by unpublished per curiam opinion. Chief Judge Wilkinson
wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Steven Ray Minor, ELLIOTT, LAWSON & POM-
RENKE, Bristol, Virginia, for Appellant. Gerald L. Gray, LAW
FIRM OF GERALD L. GRAY, Clintwood, Virginia, for Appellee.
ON BRIEF: Roy M. Jessee, MULLINS, HARRIS & JESSEE, Nor-
ton, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

The principal issue presented in this appeal is whether the evidence
presented at trial, viewed in a light most favorable to Joseph Cooper
(Cooper), was sufficient to allow a reasonable jury to render a verdict
in favor of Cooper and against the Lee County, Virginia Board of
Supervisors (the Board), on Cooper's 42 U.S.C. § 1983 claim that the
Board violated his right of political affiliation as guaranteed by the
First Amendment by terminating his health insurance and other bene-
fits because of his political affiliation. Because we conclude that the
evidence presented at trial, viewed in a light most favorable to Coo-
per, was insufficient to allow a reasonable jury to render a verdict in
his favor, we reverse the judgment of the district court.

                    2
I

A

Each county in the Commonwealth of Virginia has a Commis-
sioner of Revenue. See Va. Const. art. VII,§ 4. Each Commissioner
of Revenue is an independent constitutional officer. See id.1 The sala-
ries of constitutional officers and their staff are paid by each county,
but each county is reimbursed for these expenditures by the Compen-
sation Board of the Commonwealth of Virginia (the Compensation
Board).

The Compensation Board also reimburses each county for the costs
of payroll taxes, group life insurance, and retirement system benefits
for the permanent, salaried staff of constitutional officers. Addition-
ally, the Compensation Board allocates certain lump sum amounts to
some constitutional officers to be used to hire additional employees,
designated by the Compensation Board as temporary employees. It is
within the constitutional officer's discretion to determine how this
money is used. For example, with the lump sum amount allocated, the
constitutional officer may hire two employees who work twenty hours
per week each, or may hire one employee to work forty hours per
week. The Compensation Board does not reimburse each county for
the costs of group life insurance and retirement system benefits for
temporary employees, although it does reimburse each county for
their payroll taxes. Under state law, each county is required to provide
group life, accident, and health insurance to constitutional officers
and their employees on the same basis as it provides benefits to its
own employees. See Va. Code Ann. § 15.2-1517.

B

In February 1992, Cooper, a Democrat, was hired to work full-time
as a deputy commissioner by the Lee County Commissioner of Reve-
nue, Tommy Livesay, also a Democrat.2 At all times relevant to this
_________________________________________________________________
1 Other constitutional officers in each county include the Common-
wealth's Attorney, the Sheriff, the Treasurer, and the Circuit Court Clerk
of Court. See Va. Const. art. VII, § 4.
2 At trial, Cooper presented evidence that he has been an active Demo-
crat in rural Lee County. Cooper displayed Democratic bumper stickers

                    3
case, Cooper's position was funded by lump sum money allocated by
the Compensation Board to pay temporary employees. At the time he
was hired, Lee County provided Cooper group life insurance and
retirement system benefits, however Lee County was not reimbursed
by the Compensation Board for any of these benefits since the Com-
pensation Board classified Cooper's position as temporary. Cooper
was provided these benefits even though temporary employees are not
eligible for these benefits under Virginia law. See Va. Code Ann.
§§ 51.1-132 and 51.1-502.

At the time he was hired, Lee County also provided Cooper with
health insurance benefits. Lee County's group health insurance is
obtained through a voluntary, state-sponsored program authorized by
Virginia Annotated Code § 2.1-20.1:02, under which the Common-
wealth of Virginia's Department of Personnel and Training (DPT)
defines and administers the state health insurance program. Under
DPT regulations, the definitions set forth by the local employer in the
local employer's application define who are the full-time and part-
time employees eligible to participate in the state health insurance
program. See 1 Va. Admin. Code § 55-20-320(B).

From its inception, Lee County's health insurance program has
excluded temporary employees. When Lee County enrolled in the
state health insurance program in 1990, it executed an "Adoption
Agreement," which includes definitions of eligible employees. See 1
Va. Admin. Code § 55-20-20 ("`Adoption agreement' means an
agreement executed between a local employer and the department
specifying the terms and conditions of the local employer's participa-
tion in the health benefits program."). The Adoption Agreement pro-
vides that temporary employees are not eligible for health insurance
_________________________________________________________________
on his vehicle, displayed Democratic signs on his and his relatives' prop-
erty, attended Democratic dinners and drove a vehicle displaying Demo-
cratic signs in the Lee County Tobacco Festival parade in October 1995.
Cooper also worked the polls on election day in 1995 at the Woodway
Precinct, campaigning for Democratic candidates. A member of the
Board, Donald Williams, then a candidate, was also working the polls in
Cooper's vicinity throughout the day and saw Cooper campaigning for
his opponent.

                    4
benefits and permanent employees working thirty-five hours or more
per week are eligible.

C

The five-member Board was comprised of a Democratic majority
until January 1996. In the 1995 general elections, the Republican
Party gained control of the Board, and an incumbent Republican
member, Marty Hensley (Hensley), was elected chairman. Of the five
members of the Board elected in 1995, four are Republicans: Hensley,
James Sutphin (Sutphin), Donald Williams (Williams), and Timothy
Belcher (Belcher).

Shortly after the newly elected members of the Board assumed
their duties, several members of the Board asked the Acting County
Administrator, Helen Duncan, if she needed additional office space,
and she responded in the affirmative. To provide Duncan additional
office space, the Board instructed Livesay on January 19, 1996, to
vacate the office used by Cooper, which was located on the same
floor as Duncan's. Livesay protested this action by personally visiting
with each member of the Board and explaining the necessity of keep-
ing Cooper's office space for the Commissioner of Revenue's use.
After each member of the Board toured the Commissioner of Reve-
nue's office space, the decision to instruct Livesay to vacate the office
used by Cooper was put on "indefinite hold."

In June 1996, at a regularly scheduled meeting, the Board, with the
Board's lone Democrat, Claude Ray (Ray), dissenting, voted to dis-
continue funding benefits for employees that the Compensation Board
did not consider permanent. In effect, the Board voted to stop funding
benefits that Lee County was not being reimbursed for by the Com-
pensation Board, i.e., group life insurance and retirement system ben-
efits provided to employees designated by the Compensation Board
as temporary. At the same meeting, the Board approved a budget by
a unanimous vote that included no funding for Cooper's benefits. By
letter dated July 2, 1996, the County Administrator, Dane Poe (Poe),
informed Cooper that, because the Compensation Board classified his
position as temporary, he was not eligible for benefits. According to
Poe's letter, this action was taken "to insure fair and equal treatment
of all part-time and temporary workers."

                     5
At a Board meeting on July 19, 1996, Livesay appealed the action
taken by the Board as it applied to Cooper. One of the Republican
members of the Board, Sutphin, explained that the Board's action

         was not an action against Joey Cooper, but on my part it was
         in an effort to, to achieve uniformity in the County's
         employment policies . . ., I am not wanting to deprive him
         of those things, but we do at some point in time need to
         achieve some kind of uniformity . . . and if someone else
         slipped through the cracks, . . . then maybe we need to take
         a close look at, at them, too.

At the July 19, 1996 meeting, Livesay also informed the Board that
an employee of the Commonwealth's Attorney, Assistant Common-
wealth's Attorney, Greg Edwards, a Republican, was receiving bene-
fits even though he was "part-time." In response, each member of the
Board agreed that Lee County should discontinue Edwards' benefits.
On July 23, 1996, by letter, Poe informed Edwards that the Board
voted to discontinue funding benefits of employees that the Compen-
sation Board did not consider permanent, and therefore would not pay
for Edwards' health insurance.3

The Board did not ultimately discontinue Edwards' health insur-
ance benefits because Edwards informed the Board that his position
was designated as a permanent salaried position by the Compensation
Board and the "part-time" designation only connoted that some assis-
tant Commonwealth's attorneys are also allowed to engage in the pri-
vate practice of law. See Va. Code Ann.§ 15.2-1633.

As a result of the Board's decision to discontinue funding benefits
for employees that the Compensation Board designated as temporary,
one employee in the Treasurer's office, and three magistrates, all of
whom are Democrats, lost some benefits that were funded by Lee
County. No other employee designated by the Compensation Board
_________________________________________________________________
3 Health insurance was the only benefit funded directly by Lee County.
Because Edwards was designated as a permanent employee by the Com-
pensation Board, Lee County's costs for Edwards' group life insurance
and retirement system benefits were reimbursed by the Compensation
Board.

                   6
as temporary, including Cooper's co-worker, June Cooney (Cooney),
have ever received benefits.

D

On December 23, 1996, Cooper filed a complaint against the Board
and four of its members (Hensley, Sutphin, Williams, and Belcher) in
the United States District Court for the Western District of Virginia.
In Count One of his complaint, Cooper alleged that the Board and
Hensley, Sutphin, Williams, and Belcher, individually, violated Coo-
per's right of political affiliation as guaranteed by the First Amend-
ment when the Board terminated his health insurance and other
benefits because of his political affiliation. Count Two alleged that
the Board and Hensley, Sutphin, Williams, and Belcher, individually,
violated Cooper's Fourteenth Amendment right to due process of law
as a consequence of the First Amendment deprivation alleged in
Count One. Counts Three and Four alleged that Hensley violated cer-
tain provisions of Virginia law, and in the course of doing so, caused
emotional distress to Cooper.

On February 18, 1997, the Board and the four individual members
of the Board named in the complaint moved to dismiss the complaint.
See Fed. R. Civ. 12(b)(6). Because matters outside the complaint were
presented to and not excluded by the district court, the district court
treated the motion to dismiss as one for summary judgment under
Rule 56 of the Federal Rules of Civil Procedure. See Fed. R. Civ. P.
12(b). The district court granted the motion in part and denied it in
part. With respect to those portions of the complaint pertaining to the
four members of the Board, the district court granted the motion. The
district court dismissed with prejudice Counts One and Two as they
applied to the members of the Board named in the complaint and dis-
missed without prejudice Counts Three and Four against Hensley.
With respect to those portions of Counts One and Two pertaining to
the Board, the district court denied the motion.

On January 8, 1998, Cooper's case against the Board proceeded to
trial. At the conclusion of Cooper's evidence and at the close of all
evidence, the Board moved for judgment as a matter of law. See Fed.
R. Civ. P. 50(a). The district court denied each motion. In its instruc-
tions to the jury with respect to Count One, the district court, in accor-

                     7
dance with the burden-shifting framework set forth in Mt. Healthy
City School District Board v. Doyle, 429 U.S. 274, 287 (1977),
instructed the jury that to find in Cooper's favor it had to find by a
preponderance of the evidence that Cooper engaged in constitution-
ally protected conduct and that his constitutionally protected conduct
was a substantial or motivating factor in the decision to terminate his
health insurance and other benefits. The district court further
instructed the jury that if Cooper met this burden, the Board could
only escape liability by proving by a preponderance of the evidence
that it would have terminated Cooper's health insurance and other
benefits absent Cooper's protected conduct.4

At the conclusion of the trial, by special verdict, the jury found in
favor of Cooper and awarded him damages in the amount of $85,000.5
By agreement of the parties, the issues of restitution and reinstatement
of benefits were resolved by the district court after the trial. On March
9, 1998, the district court ordered no restitution, but ordered reinstate-
ment of Cooper's health insurance and other benefits. On the same
day, the district court entered judgment, granting Cooper $85,000 in
damages and reinstatement of his health insurance and other benefits.

On March 18, 1998, the Board moved for judgment as a matter of
law or, in the alternative, for a new trial or remittitur, or, in the alter-
native, to amend the judgment. See Fed. R. Civ. P. 50(b), 52(b), 59(a),
_________________________________________________________________
4 Apparently, at some point during the litigation, Count Two, which
alleged that Cooper was deprived of his Fourteenth Amendment right to
due process of law as a consequence of the First Amendment deprivation
alleged in Count One, was abandoned by Cooper. No jury instruction on
Count Two and no objection by either party concerning Count Two
appears in the record. Further, the parties make no mention of Count
Two in their respective briefs.
5 In its special verdict, the jury answered "yes" to the following ques-
tion: "Has plaintiff Joseph Cooper proved by a preponderance of the evi-
dence that his party affiliation was a substantial or motivating factor in
the decision of a majority of the members of the Lee County Board of
Supervisors to stop funding for his benefits?"; and "no" to the following
question: "Has defendant Lee County Board of Supervisors proved by a
preponderance of the evidence that a majority of the Board would have
voted to stop funding for Joseph Cooper's benefits for a reason or rea-
sons other than Cooper's party affiliation?"

                     8
and 59(e). On June 18, 1998, the district court denied these motions,
except that the district court ordered a new trial unless Cooper agreed
to a remittitur of the damages award to $15,000. On June 23, 1998,
Cooper accepted the remittitur in lieu of having a new trial. The fol-
lowing day, the district court ordered the reduction of the damages
portion of its judgment to $15,000. The Board filed a timely notice
of appeal.

II

On appeal, the Board argues that the district court erred in denying
its post-trial motion for judgment as a matter of law. See Fed. R. Civ.
P. 50(b). According to the Board, there is insufficient evidence in the
record to support the jury's verdict in favor of Cooper.

We review de novo the district court's denial of a motion for judg-
ment as a matter of law. See Benesh v. Amphenol Corp. (In re Wilde-
wood Litigation), 52 F.3d 499, 502 (4th Cir. 1995). A district court
may grant a motion for judgment as a matter of law if "there is no
legally sufficient evidentiary basis for a reasonable jury to find for
[the non-moving] party . . . ." Fed. F. Civ. P. 50(a). Judgment as a
matter of law under Federal Rule of Civil Procedure 50 is proper
"when, without weighing the credibility of the evidence, there can be
but one reasonable conclusion as to the proper judgment." Singer v.
Dungan, 45 F.3d 823, 826 (4th Cir. 1995) (citation and internal quota-
tion marks omitted). Succinctly put, under Rule 50, we must consider
the evidence, and all reasonable inferences to be drawn therefrom, in
the light most favorable to Cooper to determine whether the evidence
presented at trial was sufficient to allow a reasonable jury to render
a verdict in his favor. See Price v. City of Charlotte, 93 F.3d 1241,
1249-50 (4th Cir. 1996).

In Elrod v. Burns, 427 U.S. 347 (1976), a divided Supreme Court
granted some First Amendment protection to employees terminated
because of their political affiliation where political affiliation was not
a reasonably appropriate requirement for the job. See id. at 359 (plu-
rality opinion). As Justice Stewart, concurring, said, a "nonpolicy-
making, nonconfidential government employee [cannot] be
discharged or threatened with discharge from a job that he is satisfac-
torily performing upon the sole ground of his political beliefs." Id. at

                     9
375 (Stewart, J., concurring in judgment). In Branti v. Finkel, 445
U.S. 507 (1980), the Supreme Court reaffirmed Elrod, and explained
that the First Amendment prohibits the termination of a public
employee because of the employee's political affiliation unless "the
hiring authority can demonstrate that party affiliation is an appropri-
ate requirement for the effective performance of the public office
involved." Branti, 445 U.S. at 518.6 The Elrod/Branti rulehas been
extended to promotion, transfer, recall, and hiring decisions based on
political affiliation, see Rutan v. Republican Party of Ill., 497 U.S. 62,
79 (1990), the denial of compensation, see Lieberman v. Reisman,
857 F.2d 896, 900 (2d Cir. 1988), demotion, see McEvoy v. Spencer,
124 F.3d 92, 103-05 (2d Cir. 1997), and protection of independent
contractors, see Board of County Comm'rs v. Umbehr, 116 S. Ct.
2342, 2345-52 (1996) (prohibiting termination of a contract in reprisal
for contractor's criticism of county government); O'Hare Truck Serv.,
Inc. v. City of Northlake, 116 S. Ct. 2353, 2355-61 (1996) (prohibit-
ing removal of an independent contractor from a list of towing ser-
vices employed by the City of Northlake in retaliation for supporting
opposing political party). The justification behind the Elrod/Branti
line of cases is that

          [p]atronage . . . to the extent it compels or restrains belief
          and association is inimical to the process which undergirds
          our system of government and is at war with the deeper tra-
          ditions of democracy embodied in the First Amendment. As
          such, the practice unavoidably confronts decisions by this
          Court either invalidating or recognizing as invalid govern-
          ment action that inhibits belief and association through the
          conditioning of public employment on political faith.

Elrod, 427 U.S. at 357 (citation and internal quotation marks omitted).7
_________________________________________________________________

6 The Board has never suggested that political affiliation was an appro-
priate requirement for Cooper's job.

7 The fact that a position historically is one of political patronage and
that the appointment to the position itself is a patronage appointment is
of no consequence. See Umbehr, 116 S. Ct. at 2350 (history of past
patronage, even if a source of benefit to the plaintiff, does not render the
practice constitutional).

                     10
A public employee's claim that an adverse employment decision
was motivated by the exercise of the employee's First Amendment
right of political affiliation is analyzed under the burden-shifting
framework set forth in Mt. Healthy. See Umbehr, 116 S. Ct. at 2347.
In order to prevail under Mt. Healthy, the plaintiff must first establish
by a preponderance of the evidence: (1) that the plaintiff's conduct at
issue was constitutionally protected, and (2) that it was a substantial
or motivating factor in the employment decision. See id. Once this
burden is met, the defendant may escape liability only by proving by
a preponderance of the evidence that the same employment action
would have been taken absent the protected conduct. See id.

Neither party contests the conclusion that Cooper's Democratic
Party affiliation is conduct protected by the First Amendment. Coo-
per's deputy commissioner position is a nonpolicymaking and non-
confidential governmental position. On these facts, political affiliation
would not be required for effective service as a deputy commissioner
in the Commissioner of Revenue's office. Therefore, Cooper's Demo-
cratic Party affiliation is constitutionally protected conduct. See
Branti, 445 U.S. at 518.

Even though Cooper has established that he engaged in constitu-
tionally protected conduct, he has failed to show that his political
affiliation was a substantial or motivating factor in the Board's deci-
sion to terminate his health insurance and other benefits. First, the
budget that included no funding for Cooper's benefits was approved
by the Board by a unanimous vote. Obviously, if political affiliation
motivated the decision to terminate Cooper's benefits, one would rea-
sonably suspect that the Board's lone Democrat, Ray, would have
voted to defeat the budget. Second, the Board's action was designed
to eliminate the inequity of providing benefits to some employees
designated by the Compensation Board as temporary and not to other
employees designated as temporary, such as Cooper's co-worker,
Cooney. Some employees designated by the Compensation Board as
temporary were not receiving benefits, and Cooper, harnessed with
that designation, was. Third, once Livesay informed the Board that
Lee County was providing Edwards benefits, the Board moved
swiftly to terminate Edwards' benefits that were funded by Lee
County. The decision to terminate Edwards' benefits that were funded
by Lee County raises a strong inference that Cooper's political affilia-
tion was not a substantial or motivating factor in the Board's decision

                     11
to terminate Cooper's benefits. Indeed, at the time Livesay informed
the Board that Lee County was providing Edwards benefits, each
member of the Board stated that Lee County should discontinue
Edwards' benefits. Finally, it appears that Cooper was not eligible for
the benefits he was receiving. With regard to group life insurance and
retirement system benefits, temporary employees are not eligible for
these benefits under Virginia law. See Va. Code Ann. §§ 51.1-132
and 51.1-502. With regard to health insurance benefits, the Adoption
Agreement provides that temporary employees are not eligible for
health insurance benefits and permanent employees working thirty-
five hours or more per week are eligible.

Cooper makes much of the fact that Edwards' health insurance
benefits were reinstated. However, Cooper is not similarly situated to
Edwards. Cooper was designated by the Compensation Board as a
temporary employee; Edwards was designated by the Compensation
Board as a permanent employee. Under state law, each county is
required to provide, among other things, health insurance to constitu-
tional officers and their employees on the same basis as it provides
benefits to its own employees. See Va. Code Ann. § 15.2-1517. In this
case, Lee County was providing health benefits to Cooper even
though it was not providing health benefits for other employees desig-
nated by the Compensation Board as temporary. The fact that
Edwards' health insurance benefits were reinstated does not suggest
that Cooper's benefits were terminated because of his political affilia-
tion, but rather, it suggests that Lee County was attempting to provide
health insurance benefits to all employees designated by the Compen-
sation Board as permanent.

In summary, Lee County was providing Cooper benefits while
other employees designated by the Compensation Board as temporary
were not receiving those same benefits. To cure this inequity, the
Board eliminated the funding of benefits to all employees designated
by the Compensation Board as temporary. We see nothing sinister in
the Board's actions. Because the evidence presented at trial was insuf-
ficient to allow a reasonable jury to render a verdict in Cooper's
favor, the judgment of the district court must be reversed. See Price,
93 F.3d at 1249-50.

REVERSED

                    12
WILKINSON, Chief Judge, dissenting:

I would affirm the judgment of the district court for the reasons set
forth in its respective opinions (Joint Appendix at 623-28; 633-47).

                    13
