UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DONALD K. PHILLIPS,

Plaintiff-Appellant,

v.

No. 95-1295

BARBARA S. NIELSEN, in both her

individual and official capacities,

Defendant-Appellee.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Dennis W. Shedd, District Judge.

(CA-92-628-3-19)

Argued: March 7, 1996

Decided: October 18, 1996

Before MURNAGHAN and ERVIN, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Reversed and remanded by unpublished opinion. Senior Judge

Butzner wrote the opinion, in which Judge Murnaghan and Judge

Ervin joined.

_________________________________________________________________

COUNSEL

ARGUED: James Lewis Mann Cromer, CROMER & MABRY,

Columbia, South Carolina, for Appellant. Vance J. Bettis, GIGNILLIAT, SAVITZ & BETTIS, Columbia, South Carolina, for Appellee.

ON BRIEF: Craig L. Berman, Waltham, Massachusetts, for Appel-
lant. Ashley B. Abel, EDWARDS, BALLARD, BISHIP, STURM,

CLARK & KEIM, P.A., Spartanburg, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

BUTZNER, Senior Circuit Judge:

In this action, based on 42 U.S.C. § 1983, alleging political retaliation, Donald Kent Phillips, a former employee of the South Carolina

Department of Education, appeals the district court's summary judgment in favor of Barbara Nielsen, the South Carolina Superintendent

of Education. The district court held that Phillips had been discharged

solely because of his party affiliation. The court then concluded that

under Elrod v. Burns, 427 U.S. 347, 367, 375 (1976), and Branti v.

Finkel, 445 U.S. 507, 518 (1980), political affiliation was an appropriate requirement for Phillips's position and granted Nielsen's

motion for summary judgment. In an alternative holding, the court

determined that Nielsen was entitled to qualified immunity. We

reverse because the record discloses genuine issues of material fact.

I

We review summary judgment de novo, construing all disputed

facts and reasonable inferences in favor of the nonmoving party.

Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986). Summary judgment is appropriate if after examining

the entire record, including all depositions, answers to interrogatories,

admissions, and affidavits, the court concludes that there exists no

genuine issue of material fact. Fed. R. Civ. P. 56(c); see Campbell v.

Hewitt, Coleman & Associates, Inc., 21 F.3d 52, 55-56 (4th Cir.

1994).

In November 1990, Nielsen, a Republican, ran against the Democratic incumbent, Dr. Charlie Williams, in an election for State Super-

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intendent of Education. Nielsen campaigned on an antibureaucracy

platform, pledging to streamline the Department of Education. Phillips, a Democrat, attended several debates between Nielsen and Williams. He took annual leave to chauffeur Williams to some campaign

appearances. Mary Jackson Willis, who later became one of Nielsen's

top-ranking advisors and Phillips's boss, saw Phillips at one of those

appearances. Phillips put up signs for Williams and made a financial

contribution to his re-election campaign.

Nielsen won the election and took office in January 1991. She

immediately began implementing her campaign promise to restructure

the Department. The top echelon of the Department under Williams

consisted of several Deputy Superintendents of Education who

reported directly to the Superintendent. The Deputy Superintendents

supervised a level of Associate Superintendents, including Phillips,

who in turn supervised a lower level of directors. Beginning in January 1991, Nielsen eliminated both the deputy superintendent and the

associate superintendent positions. The former deputy and associate

superintendents, including Phillips, were given jobs within the

Department as interim "Special Assistants." Phillips, in his new position as Special Assistant had no substantial responsibilities, but he

suffered no loss of pay.

Nielsen then decided to create seven new Senior Executive Assistant positions to assume the responsibilities that had previously been

fulfilled by the Deputy and Associate Superintendents. Phillips submitted applications for three Senior Executive Assistant positions but

was not selected. Nielsen did not select any of the individuals who

had served as Deputy and Associate Superintendents under Williams.

By early June 1991, Phillips was experiencing increasing levels of

job-related stress, which had the potential to exacerbate his existing

heart condition. He also realized that he would lose retirement benefits if he waited to retire until after June 30, 1991. After numerous

unsuccessful attempts to meet with Nielsen to discuss his future job

prospects, Phillips submitted notice that he was retiring from the

Department as of June 30, 1991.

Phillips, claiming constructive discharge, brought this suit against

Nielsen in both her individual and official capacities. He alleged that

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Nielsen's conduct violated the First and Fourteenth Amendments.

Nielsen denied the complaint's allegations and filed a motion for

summary judgment alleging that even if Phillips were constructively

discharged, his discharge was lawful because he was a policymaker

or confidential employee. Alternatively, Nielsen contended that she

was entitled to qualified immunity because it was not clearly established in 1991 that an Associate Superintendent for Instruction was

not a policymaker.

Phillips introduced the deposition testimony of Warner Montgomery, a consultant who worked on Nielsen's reorganization strategy.

Montgomery testified that Nielsen told him on several occasions that

she planned to get rid of "Charlie's Boys," who had "worked against

her":

She told me . . . when we had our first conversations before

I started to work, that it was not anything that I had to worry

with, that most of them [Charlie's Boys] had been reassigned and they would not be involved in anything and I

was not to worry about it, but that it was her intention that

they would not be part of the new organization, and she let

me know that right off. . . .

Montgomery also testified that Nielsen compiled a list, known as the

"Banana List," which included the names of many of "Charlie's

Boys." Nielsen told Montgomery not to contact or discuss the reorganization with any individual on the list. Phillips's name was on the

list. Nielsen testified that she had no recollection of preparing this list.

II

The parties stipulated that for the purposes of summary judgment

Phillips was constructively discharged. After a hearing, the magistrate

judge determined that because Phillips sought only monetary relief,

his claim against Nielsen in her official capacity was barred. See Will

v. Michigan Department of State Police, 491 U.S. 58, 70-71 (1989).

Phillips has not appealed this ruling.

In her motion for summary judgment, Nielsen argued that Phillips

lawfully could be discharged because of his political affiliation. She

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relied on Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel,

445 U.S. 507 (1980). The district court granted Nielsen's motion and

dismissed the case. It held that the facts demonstrated that Phillips

was a person who could be discharged under Elrod-Branti. The court

alternatively held that Nielsen was entitled to qualified immunity

because it was not clearly established that a person in Phillips's position could not be dismissed under Elrod-Branti .

III

It is well established that an individual is not stripped of his First

Amendment rights simply because he is employed by a local, state,

or federal government body. "Absent some reasonably appropriate

requirement, government may not make public employment subject

to the express condition of political beliefs or prescribed expression."

O'Hare Truck Service, Inc. v. City of Northlake , 116 S. Ct. 2352,

2357 (1996). In fashioning legal standards for evaluating which

restrictions are "reasonably appropriate" the Supreme Court has

charted a course along two lines of inquiry: the Elrod-Branti standard

for discrimination based on party affiliation and a balancing test for

discrimination based on political speech. See Pickering v. Board of

Education, 391 U.S. 568 (1968); Connick v. Myers, 461 U.S. 138, 147

(1983); Givhan v. Western Five Consolidated School Dist., 439 U.S.

410, 415-16 (1979).

Political affiliation is a legitimate employment criterion only if the

employee occupies a position for which affiliation is "an appropriate

requirement for the effective performance of the public office

involved." Branti, 445 U.S. at 518. This classification includes policymakers. Under the relatively flexible Pickering-Connick-Givhan

standard, a court must balance "the interests of the [public employee],

as a citizen, in commenting on matters of public concern and the

interest of the State, as an employer, in promoting the efficiency of

the public services it performs through its employees." Pickering 391

U.S. at 568.

The primary issue in this type of employment case is the motive

of the employer that prompted the constructive discharge. This court

has issued the following instruction for resolution of a case alleging

unlawful political discharge: "First,[if] the evidence raises genuine

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issues as to the actual reason for an employee's discharge, that motivational issue must of course be resolved by the trier of fact. On that

resolution, all else turns." Jones v. Dodson , 727 F.2d 1329, 1337 (4th

Cir. 1984). The evidence discloses a genuine issue of material fact

pertaining to Nielsen's motive for Phillips's constructive discharge. In

her motion for summary judgment she alleged that Phillips, a Democrat, could be "lawfully dismissed because of his political affiliation."

Relying on Branti, she claimed that Phillips's "party affiliation is an

appropriate requirement for the effective performance of the public

office" he held. Branti, 445 U.S. at 518.

Shortly after Phillips filed this action, Nielsen issued a press

release which she intended to be a rebuttal to Phillips's allegations

that he was constructively discharged because of his political affiliation and support of Williams. In the press release, Nielsen emphasized

that her office was staffed without regard to political affiliation. She

also asserted that some of the present top employees were Democrats.

Her press release contained the following statements:

 The campaign ended in November, 1990. Period. My

transition team was filled with Democrats and Republicans

and I have never--NEVER--made hiring or promotion

decisions based on politics. My restructuring and consideration were approved every step of the way by state personnel officers.

 My senior staff and office directors do include people

who agree with my educational philosophy and agenda. This

is an elected office so that's no surprise. But some of these

jobs also are filled by people who worked for, and campaigned hard for, my predecessor and who worked for and

campaigned for former Democratic governors and Democratic candidates. I'm also sure that some of these top Education staffers are Democrats, but I have never asked them

because it's not important. Some of these jobs are filled by

people who are NOT politically active.

On this summary judgment record it is difficult to reconcile the

statements Nielsen authorized in her motion with the statements she

made in her press release, and we are left with the conclusion that

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there exists a genuine issue of material fact about Nielsen's motive.

Our ruling today, however, pertains to summary judgment, and it is

not intended to be pre-emptive. Perhaps Nielsen will be able to

amplify her statements and clarify her meaning when the case is tried

before a jury on remand.

Nielsen's alternative claim that she is entitled to qualified immunity under Elrod-Branti principles suffers the same defects. The standard for application of the doctrine of qualified immunity is the

"objective reasonableness of an official's conduct with reference to

clearly established law." Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). It is not likely that a reasonable public employer would claim

the need of compatible political affiliation on the part of an employee

while at the same time disavowing political affiliation as a criterion

for employment.

IV

The district court held that Phillips's evidence was insufficient to

prove a violation of the First Amendment in retaliation for political

speech, i.e., his support of Nielsen's opponent. Phillips controverts

this finding in good faith, citing Montgomery's testimony, the "banana list," and Willis's knowledge of his help for Williams in the

campaign. He emphasized the inferences that can be drawn in his

favor from this evidence. We need not express, however, any opinion

on this issue inasmuch as we have denied Nielsen's motion for summary judgment on other grounds. Phillips did not move for summary

judgment, standing instead on his demand for a jury. Any expression

of opinion, under these circumstances, would be dicta. When the case

is tried, Phillips can present this claim.

We conclude that an opinion on another issue would be premature

because the record with respect to South Carolina law has not been

sufficiently developed. Phillips claims that he cannot be discharged

because he was a career employee under South Carolina law, not a

political appointee. Nielsen contends that federal, not state, law controls for First Amendment purposes. Both parties have cited numerous

cases, none of which is precisely on point. The futility of assessing

these arguments is that Phillips was transferred from one position to

another without a reduction in pay. The parties have presented no

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information on the question whether this transfer, allegedly a part of

a departmental reorganization, is prohibited by South Carolina civil

service law.

We have accepted for all other aspects of this summary judgment

proceeding the parties' stipulation that Phillips was constructively discharged. This stipulation by its terms will not be effective at the trial

for which we have remanded the case. We decline to accept this stipulation with respect to Phillips's civil service status after he was transferred, which involves a question of law. See Estate of Sandford v.

Commissioner, 308 U.S. 39, 51 (1939). We believe the prudent course

is to await further development of this issue on remand.

We dismiss without prejudice Phillips's assignment of error concerning the district court's exclusion in the summary judgment proceedings of Richard Gergel's letter.

REVERSED AND REMANDED

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