United States Court of Appeals

Fifth Circuit



## FILED

March 15, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________

No. 01-60983

JOE WIGGINS,

Plaintiff - Appellee,

v.

LOWNDES COUNTY, MISSISSIPPI; ET AL.,

Defendants,

LOWNDES COUNTY, MISSISSIPPI,

Defendant - Appellant.

Appeal from the United States District Court

for the Northern District of Mississippi

Before REAVLEY, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

In this case we are called upon to decide whether the position of Road Foreman in Mississippi

is protected by the First Amendment from political patronage demotion. We have previously decided

that a Road Manager, who supervises all the Road Foremen in a county, holds a politically sensitive

position that requires personal loyalty to elected o fficials and is therefore subject to political

patronage dismissal. S ee Gentry v. Lowndes

, 337 F.3d 481, 488 (5th Cir. 2003). For the reasons that

follow, we now find that the Road Foreman position is not politically sensitive. A Road Foreman’s2

speech on matters of public concern is therefore protected by the First Amendment, and he may not

be terminated or demoted for supporting the opponent of an elected official in a campaign.

Lowndes County, Mississ i pi (the County) and Harry Sanders (Sanders) appeal from a jury

verdict and judgment entered in favor of Joe Wiggins (Wiggins) on his employment discrimination

claim. After Wiggins helped his bro t her’s unsuccessful campaign against Sanders for County

Supervisor, he was demoted from his position of Road Foreman. Wiggins claimed that his demotion

was an act of political retaliation. He tried his case to a jury, which found that he had suffered a First

Amendment violation and awarded him $10,144. The district court denied Defendants’ motion for

judgment as a matter of law. We review the district court’s decision d e novo. Med. Care Am., Inc.

v. Nat’l Union Fire Ins. Co. of Pittsburgh, Penn. , 341 F.3d 415, 420 (5th Cir. 2003).

I.

A public employee may not be demoted based on an exercise of his First Amendment right

t o free speech so long as his speech relates to a matter of public concern and his interest in

commenting on that matter outweighs “the public employer’s interest in promoting the efficiency of

the public services it performs through its employees.” Brady v. Fort Bend County

, 145 F.3d 691,

704 (5th Cir. 1998) (internal quotati on m arks and citations omitted). Political speech regarding a

public election lies at the core of matters of public concern protected by the First Amendment. See

Elrod v. Burns, 427 U.S. 347, 356 (1976) (plurality opinion); Aucoin v. Haney , 306 F.3d 268, 274

(5th Cir. 2002).

We apply a case-by-case balancing test to determine whether an employee’s interest in

co mment ing upon matters of public concern outweighs the interest of the State in promoting the

efficient delivery of public services. S ee Coughlin v. Lee, 9 46 F.2d 1152, 1157 (5th Cir. 1991)3

(quoting Connick v. Myers

, 461 U.S. 138, 152 (1983) and Pickering v. Bd. of Educ.

, 391 U.S. 563,

568 (1968)). Where a public employee is demoted for supporting an elected official’s political rival,

the key factor in the balancing test is whether political allegiance “is an appropriate requirement for

the effective perform ance o f t he public office involved.” S ee Branti v. Finkel, 445 U.S. 507, 518

(1980).

Although the Court in Branti rejected the strict application of “policymaker” or “confidential

employee” tests, see id.

, these terms “illuminat e the co nt o urs of the employee class that may

permissibly be subjected to a political lit mus test.” B arrett v. Thomas

, 649 F.2d 1193, 1201 (5th Cir.

1981). We more readily find that the government’s interests outweigh the employee’s interests where

the employee is a policymaker or is confidential. Kinsey v. Salado Indep. Sch. Dist., 950 F.2d 988,

994 (5th Cir. 1992). We find that a Road Foreman is neither.

A policymaker is an employee “whose responsibilities require more than simpl e ministerial

competence, whose decisions create or implement policy, and whose discretion in performing duties

or in selecting duties to perform is not severely limit ed by statute, regulation, or policy determinations

made by supervisors.” S tegmaier v. Trammell, 597 F.2d 1027, 1035 (5th Cir. 1979).

“[C]onsideration should also be given to whether the employee acts as an adviser or formulates plans

for the implementation of broad goals.” Elrod, 427 U.S. at 368. In G entry we found that a Road

Manager is a policymaker because he runs the county road department, supervises all road and bridge

work in the county, helps to prepare a budget, purchases and leases equipment, hires assistants and

employees, and carries out the general policies of the county board of supervisors. G entry, 337 F.3d

at 487 (citing M ISS

. C ODE A NN

. § 65-17-1). The Road Manager appoints a Road Foreman for each1 In Lowndes County, there are five districts.

2 Defendants’ comparisons of the Road Foreman position to positions deemed political in

other circuits are inapposite. Defendants argue that we should use the same reasoning here that

the Sixth Circuit used to find that the County Road Department Foreman/Garbage Coordinator

and the Assistant Road Foreman/Supervisor in Leslie County, Kentucky are inherently political

positions subject to patronage discharge. See Hoard v. Sizemore , 198 F.3d 205, 214-15 (6th Cir.

1999). We found that the former position is equivalent to the Road Manager position in

Mississippi, and we agreed that it is a policymaking position subject to patronage dismissal.

Gentry , 337 F.3d at 487. The latter position, however, is similar to the Assistant Road Manager

position in Mississippi; it is not equivalent to the Road Foreman position.

Defendants also cite Wagner v. Haw kins , 634 F. Supp. 751 (W.D. Ark. 1986), in which a

district court found that the Road Foreman position in rural Arkansas is a policymaking position

requiring political loyalty to the County Judge, the elected official for whom the Road Foreman

works. Id. at 754 (cited in Gentry , 337 F.3d at 487). A Road Foreman in Arkansas holds a

position similar to that of a Road Manager in Mississippi, so the court’s reasoning as it relates to

that position is not relevant as to the Road Foreman position here.

4 district of the county he supervises. 1 A Road Foreman implements the projects determined by the

Road Manager; he assigns work to his road crew, supervises them in the field and participates in their

work, inspects equipment, ma intains records and inventories, inspects County roads and bridges,

advises the Road Manager of needed repairs, and performs any o t her duties assigned by the Road

Manager. These duties are critically different in nature from those of a Road Manager, and we find

that a Road Foreman is not a policymaker. 2

An employee is confidential “if he or she stands in a confidentia l relat ionship to the

policymaking process, e.g., as an advisor to a policymaker, or if he or she has access to confidential

documents or other materials that embody policymaking deliberations and determinations, e.g., as a

private secretary to a policy maker.” S tegmaier

, 597 F.2d a t 1040 (quoti ng F inkel v. Branti

, 457

F.Supp. 1284, 1291 (S.D.N.Y 1978)). In Stegmaier we added to this definition the possibility that

a confidential employee may be one who is in a position to subject an elected o ffic ial to personal3 Defendants suggest we should create a new category of confidential employees. They

argue that Wiggins is a confidential employee because he represents the Supervisors when he

interacts with the public. This argument would make all county employees who interact with the

public confidential; Defendants must show something more. See, e.g., Stegmeier , 597 F.2d at

1040 (holding that a deputy clerk is confidential because, in the course of representing the Circuit

Clerk, he may subject the Circuit Clerk to civil liability and fines).

4 Wiggins also argues that his position is not one in which loyalty to an individual

Supervisor (here Sanders) is necessary because he works for the Board of Supervisors. We

rejected this argument in Gentry . 337 F.3d at 486.

5 liabilit y. 3 I

d. Road Foremen have no access to confidential documents, and they cannot create

personal liabilit

y for an elected o fficial. Furthermore, Road Foremen are shielded and distanced from

the elected Board of Supervisors by law, which makes a confidential relationship impossible. 4 See

Opinion of the Mississippi Attorney General, No. 00

- 0339, July 28, 2000 (finding that under the

Mississippi Code, a Supervisor cannot instruct the Road Manager to hire, t erminate, transfer or

demote any County employee); Opinion of the Mississippi Attorney General, No. 96-0085, March

15, 1996 (finding that the Road Manager directs the work of all road personnel and that the Board

of Supervisors may not do so).

Defendants have not shown that the Road Foreman position is policymaking or confidential,

nor have they demonstrated that it is otherwise inherently political. They argue that a Road Foreman

can undermine an elected Supervisor becau se a Supervisor’s success is largely dependent on the

quality of county roads. S ee Gentry

, 337 F.3d at 487 (emphasizing the critical nature of roads in rural

Mississippi politics). The fact that a Road Foreman could sabotage his own work, however, is not

enough alone to make his position a political one. Our decision in G entry depended on the fact that

the Road Manager and County Administrator are policymakers

– hi gh level managers whose

“positions enable[d] them to advance the board’s policies, if they act[ed] fait hfully, or to undermine5 Defendants argue that this is exactly what happened; they say Wiggins was demoted for

his inferior work. The jury, however, believed Wiggins, not Defendants, as to the cause of his

demotion.

6 Defendants alternatively argue that the jury reached inconsistent findings when it found

for Sanders on Wiggins’s malicious interference with contract claim and for Wiggins on the First

Amendment claim. We do not agree. The elements of malicious interference with contract and

wrongful demotion in violation of the First Amendment are different. See Nichols v. Tri-State

Brick and Tile Co., Inc. , 608 So. 2d 324, 328 (Miss. 1992) (stating elements of malicious

interference with contract claim); Brady , 145 F.3d at 704 (stating elements of First Amendment

claim).

6 those policies by overt or covert opposition.” G entry

, 337 F.3d at 488; see also Kinsey , 950 F.2d

at 996 (finding that a school superintendent is a politica l posit ion in large part because the school

superintendent could “make or break” the School Board’s policies and could “thwart or forward [its]

goals”). With lower level employees, “[a] government’s interest in securing effective employees can

be met by discharging, demoting, or transferring staff members whose work is deficient.” 5 R utan v.

Re p ublican Party of Ill.

, 497 U.S. 62, 74 (1990). The members of the road crew supervised by a

Road Foreman could also commit sabotage, but they certainly are not political employees. S ee, e.g.,

Wagner , 634 F. Supp. at 755.

We find that the Road Foreman position is not political and i s prot ected by the First

Amendment from political patronage.

II.

Defendants also argue that the district court should have granted judgment as a matter of law

because the evidence on ca usat ion was insufficient to support the jury’s verdict. 6 The testimony

presented by Wiggins’s witnesses showed th at (1) Wiggins helped his brother campaign directly

against Sanders, (2) Sanders said that “he thought it was only fair to get rid of people that did not

support him,” (3) Sanders was “out to get” Wiggins, and (4) Sanders told the Road Manager to7

demote Wiggins. Based on this evidence, the jury reasonably found that Sanders directed Wiggins’s

demotion in retaliation for Wiggins’s political speech.

III.

A Road Foreman in Lowndes County, Mississippi is a supe rviso r in the field without the

discretion to make policy decisions and is not in a confidential relationship with an elected official.

He can perform his job effectively regardless of his political allegiance. He is therefore protected by

the First Amendment when he exercises his right to engage in political speech, and he cannot be

demoted in retaliation for that speech. The evidence presented to the jury was sufficient to sustain

the verdict in Wiggins’s favor. The district court properly denied Defendants’ motion for judgment

as a matter of law.

AFFIRMED.