# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 12-1516

___________________________ Catherine Leapheart

lllllllllllllllllllll Plaintiff - Appellee

v. Tyrone Williamson, Individually and as Mayor for the City of Russellville,

Arkansas; Cliff Kirchner, Individually and as city council for the City of Russellville, Arkansas; Phillip Carruth, Indivi dually and as city council for the City

of Russellville, Arkansas; Freddie Harris, I ndividually and as city council for the City of Russellville, Arkansas; Bill Eaton, Individually and as city council for the City of Russellville, Arkansas; Robert Wile y, Individually and as city council for the City of Russellville, Arkansas; Kevin Freeman, Individually and as city council for the City of Russellville, Arkansas; Randal Crouch, Individually and as city council for the City of Russellville, Arkans as; Garland Steuber, Individually and as city council for the City of Russellville, Arkansas

lllllllllllllllllllll Defendants - Appellants Larry Holman, Individually and as city c ouncil for the City of Russellville, Arkansas

lllllllllllllllllllll Defendant

____________ Appeal from United States District Court for the Eastern District of Arkansas - Little Rock

____________ Submitted: November 14, 2012 Filed: January 29, 2013

____________Before RILEY, Chief Judge, WOLLMAN and MELLOY, Circuit Judges.

____________ MELLOY, Circuit Judge. Catherine Leapheart sued the former Mayor of the City of Russellville, Arkansas, and the members of the Russellville City Council in fede ral district court, alleging age and race discrimination. The City Council members (hereinafter "Defendants") filed a motion for summary judgment, asserting legislative immunity with respect to the claims against them in their individual capacities. The district court denied the claim of legislative immunity, finding that the elimination of Leapheart's position was not legislativ e action and therefore not protected by legislative immunity. 1 The Defendants filed an interlocutory appeal, seeking a reversal of the district court's denial of legislative immunity. For the reasons stated below, we reverse the denial of legisl ative immunity and remand for proceedings consistent with this opinion.
I. Background In February 2010, the City of Russellv ille posted a job advertisement for a Director of Human Resources position. At the time, the Direct or of Human Resources was classified as a department head. The Mayor, in this case Mayor Tyrone Williamson, had the final decision-maki ng authority on who to appoint for department-head positions. The City Council could override the Mayor's appointment with a two-thirds vote under Ark. Code Ann. § 14-142-110(a).

Twenty people, including Leapheart, app lied for the position. Leapheart is an African American woman who, at the time, was sixty-seven years old. The Mayor

1 The district court dismissed Leapheart' s claim against Russellville City Council member Larry Holman because he was not a member during the relevant time period.
-2-selected five people, including Leapheart, for the Defendants to interview. The Defendants interviewed Leapheart during the week of February 22, 2010. The Defendants interviewed the last finalist on Monday, March 1.

On Thursday, March 4, three of the De fendants called a special meeting for the next day. The purpose of the meeti ng was to tell Mayor Williamson whom they recommended for the position. Mayor Wil liamson could not attend the meeting. Mayor Williamson told one of the Defendants that he would take the weekend to decide who to hire and le t the Defendants know his d ecision on Monday. However, Mayor Williamson hired Leapheart as Director of Human Resources on Friday, March 5.

On Friday, March 5, two of the Defendants called another special meeting for Sunday, March 7. 2At the Sunday meeting, the Defendants passed Ordinance No. 2073 — "An Ordinance Restructuring the Human Resources Personnel of the City of Russellville and For Other Purposes." Or dinance No. 2073 eliminated the Department of Human Resources and created a nondepartment-head position in the city government titled "Human Resources." As the position was now a nondepartmenthead position, the Defendants had the sole au thority to hire and fire for the position. In short, Ordinance No. 2073 moved authority over the position from the Mayor to the City Council. Ordinance No. 2073 made no other changes to the duties associated with the position. 3

2 The parties dispute whether the Defe ndants had knowledge of Leapheart's hiring when scheduling the March 7 meeting or at the meeting itself.

3 Previously, the position had included hum an resources and administrative assistant duties, with a salary of $50, 000. Now, the position entailed solely human resources duties, with a salary of $40,000. However, these changes were made either before or during the interview process and not via Ordinance No. 2073.
-3-Leapheart showed up for work on Monday mo rning, March 8. At the time, she had no knowledge of Ordinance No. 2073. That morning, Mayor Williamson vetoed Ordinance No. 2073. After learning of the veto, the Defendants called another special meeting for that same day at 2:00 p.m. The Defendants voted unanimously to override Mayor Williamson's veto. The De fendants claim they did not know Mayor Williamson had hired Leapheart when they voted to override Mayor Williamson's veto. Later that Monday afternoon, Mayor Williamson notified Leapheart that the Defendants had eliminated her position.

On Tuesday, March 9, the Defendants calle d a fourth special meeting. At this meeting, the Defendants voted to ove rride Mayor Williamson's appointment of Leapheart. The Defendants also wrote a letter to Leapheart, explaining that her position no longer existed and apologizing for any confusion. The City of Russellville then reposted the position as a human res ources position under the control of the City Council. Leapheart did not apply for the new position.

Leapheart filed a charge of discrimination with the EEOC and later filed suit against each member of the City Council, both in their individual and official capacities. At the district court, th e Defendants moved for summary judgment on various bases, including a claim of legislative immunity. The di strict court rejected the claim of legislative i mmunity. The court stated:

The Council's decision to enact Ordinance No. 2073, abolishing the Human Resources Department and direct or position, is a legislative act. However, at the March 7 meeting, the Council not only abolished the Director of Human Resources position but also established a new human resources position with substantially the same responsibilities. At a special meeting on March 9, the C ouncil elected to overrule the Mayor's decision to hire [Leapheart] instead of moving her to a new position. The decision to terminate [Leapheart] rather than to assign her to a new human resources position was not a le gislative act because it targeted

-4-[Leapheart] individually and did not "involve 'policy-making of a general purpose.'" In re Montgomery Cnty

. , 215 F.3d 367, 376 (3d Cir. 2000) (quoting Carver v. Foerster , 102 F.3d 96, 100 (3d Cir. 1996)). The Defendants filed an interlocutory appeal of the district court's denial of summary judgment. The Defendants appealed only the denial of legislative immunity.

II. Discussion

"While the denial of a motion for summary judgment is generally unreviewable as an impermissible interlocutory appe al, we have limited authority under the collateral order doctrine to re view the denial of a motion for summary judgment to the extent the motion is based on the right to ab solute . . . immunity . . . ." Hinshaw v. Smith , 436 F.3d 997, 1002 (8th Cir. 2006). We review a district court's decision regarding legislative immunity de novo. Redwood Vill. P'ship v. Graham , 26 F.3d 839, 840 (8th Cir. 1994).
A. General Framework for Legislative Immunity A local legislator is entitled to absolutelegislative immunity for acts undertaken within the "sphere of legitimate legisl ative activity." Bogan v. Scott-Harris , 523 U.S. 44, 54 (1998) (quoting Tenney v. Brandhove , 341 U.S. 367, 376 (1951)) (internal quotation mark omitted). When determini ng whether an act is legislative, the Supreme Court applies a functional test. Redwood Vill. , 26 F.3d at 840 (citing Harlow v. Fitzgerald , 457 U.S. 800, 810 (1982)). "Legislation . . . looks to the future and changes existing conditions by making a ne w rule to be applied thereafter to all or some part of those subject to its pow er." Prentis v. Atl. Coast Line Co. , 211 U.S. 210, 226 (1908) (quoted in Brown v. Griesenauer , 970 F.2d 431, 437 (8th Cir. 1992)). For example, passing an ordinance is a legislative act. Bogan , 523 U.S. at 55.

-5-Under this functional test, "[w]hether an act is legislative turns on the nature of the act, rather than on the motive or inte nt of the official performing it." Id. at 54. A legislator's potential or alleged motives are "wholly irrelevant to [the] determination of whether [a legislator is] entitled to legi slative immunity." State Emps. Bargaining Agent Coal. v. Rowland , 494 F.3d 71, 90 (2d Cir. 2007) (citing Bogan , 523 U.S. at 55). The issue is "'whether, stripped of all considerations of intent and motive , [the petitioner's] acts were legislative.'" Id. (alteration in original) (quoting Bogan , 523 U.S. at 55).

B. Legislative Immunity and Employment Decisions

Our circuit has not considered when employment decisions may constitute legislative action. However, many circuits distinguish "between actions that involve the elimination of positions for policy reas ons (legislative actions) and actions that result in an individual's termination for reasons that relate to the individual (administrative actions)." Bagley v. Blagojevich , 646 F.3d 378, 394 (7th Cir. 2011).

First, the hiring and firing of specific i ndividuals generally is not protected by legislative immunity because it is an administrative action. In re Montgomery Cnty. , 215 F.3d 367, 376–77 (3d Cir. 2000) (citing Bogan , 523 U.S. at 55–56). For example, in Montgomery County , local legislators voted to fire a County employee. Id. at 371. The County employee then filed a civil ri ghts action, and the legislators claimed legislative immunity. Id. The court held that the legislators' action was administrative, and therefore not protectedby legislative immun ity, because the case involved "a decision to eliminate a partic ular employee rather than the position that employee happens to hold." Id. at 376. The court continued: "Firing a particular employee is a personnel decision that does not involve general policymaking. Appellants' firing of [the County empl oyee] did not reach beyond the particular occupant of the office." Id. at 377.

-6-In contrast, the wholesale elimination of a position is considered legislative action protected by legislative immunity because it "may have prospective implications that reach well beyond the particular occupant of the office." Bogan , 523 U.S. at 56. Most often, elimination-of- position cases involve situations where the employing governmental body terminates many positions at once, typically through budget-reduction legislation. See, e.g. , Almonte v. City of Long Beach , 478 F.3d 100, 107 (2d Cir. 2007). However, an action can s till be legislative even if the legislators only eliminate one position. SeeBogan , 523 U.S. at 55–56 (holding the elimination of a department was legislative action ev en though the department consisted of one employee and the legislators were targeting that one employee).

We find Montgomery County is not applicable to Leapheart's case because Montgomery County is a standard hire/fire case. 4 The Defendants did not fire Leapheart, but eliminated her position. 5 Montgomery County is not applicable even if the Defendants targeted Leapheart becau se "stripped of all considerations and motives" the Defendants' action was not a firing.

C. Canary v. Osborn Discussion Even though we conclude that Montgomery County does not control, thisconclusion does not end our analysis. Leapheart's case is not a typical elimination-of4 Although the Defendants did vote to ove rride the Mayor's appointment of Leapheart, this occurred on March 9, 2010, after the Defendants had voted to eliminate Leapheart's position.

5 Leapheart claims the Defendants did not eliminate her position. Instead, she claims they "transferred the position." Leapheart does not dispute that the Defendants passed Ordinance No. 2073 or the text of the Ordinance; she simply characterizes the effect of Ordinance No. 2073 differently.
-7-position situation because the Defendants not only eliminated her position, but also instantaneously created a s eemingly identical position. The Sixth Circuit addressed facts similar to those at issue here in Canary v. Osborn , 211 F.3d 324 (6th Cir. 2000). In Canary , a former assistant principal suedthe school board under 42 U.S.C. § 1983 for voting against renewal of his employment contract. Canary , 211 F.3d at 324. The school board claimed that it was entitled to legislative immunity under Boganbecause it eliminated the assistant principal's position. Id. at 328. The court denied the school board's claim for multiple reasons, but in part because the school board's actions "did not have prospective implications that r eached well beyond the particular occupant of the office," as the job duties of the assistant principal were simply transferred to a new position. Id. at 330–31. The court held that a "'job is not abolished under circumstances where the appoin ting authority simply transfers that job's duties to a new employee to perform.'" Id. at 331 (quoting In re Appeal of Woods , 455 N.E.2d 13, 15 (Ohio Ct. App. 1982)).

The Defendants in the present case are entitled to legislative immunity because this case is distinguishable from Canary . Like Canary , the job duties appeared to stay the same after the Defendants recreated the human resources position. However, control over the position moved from the Mayor to the City Council, a quintessential legislative decision. Therefore, in the present case, moving control over human resources has "implications beyond the occupant of a particular office" that were lacking in Canary . See also Bagley , 646 F.3d at 395–96 (declining to follow Canary because the newly created position, although si milar, had different job tasks than the eliminated position at issue).

-8-III. Conclusion For the foregoing reasons, we reverse and remand for proceedings consistent with this opinion.

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