1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0180P (6th C ir.) File Name: 04a01 80p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
M ICHAEL ANDERSON ,

Plaintiff- Appellant / Cross-Appellee,

v.

C ITY OF L A V ERGNE , Defendant-Appellee/ Cross-App ellant,

H OWARD M ORR IS , Individually

and in his official capacity as Chief of Police of the City of L aVergne,

Defenda nt. X

- - - -
> , - - - - - - - - - - - - N Nos. 02-6094/6248

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 00-00313—Aleta A. Trauger, District Judge.

Argued: April 28, 2004
Decided and Filed: June 16, 2004 2 Andersonv. LaVerg ne, et al. Nos. 02-6094/6248

* The Honorab le S. Arthur Spiegel, Senior U nit ed States Distr ict Judge for the Southern Distri ct of Ohio, sit ting by designat ion. Bef ore : C OLE a nd C OOK , C irc ui t J udg es; SP IEGE L,

Senior District Judge. *

_________________ COUNSEL

ARGUED: James L. Harris, Nashville, Tenn esse e, for Ap pellant. D avid Randall Mantooth, LEI TNER , WIL LI AMS, DOOLEY & NAPO LI TAN, Nash vi lle, Tennessee, for Appellee. ON BRI EF: James L . Harris
, Nashville, Tenness ee, for Appellan

t. David Ra

ndall Ma ntooth, LEI TNER, WILL IAMS, DOOL EY & NAPOLI TAN, Nashville, Tennessee, for Appellee.

_________________ OPINION

_________________ COOK, Circuit

Judge. Michael Anderson and the City of LaVerg ne cross-a

ppeal f rom th e district court’s grant of summary judgment in favor of Anderson, and a jury’s awa

rd of damage s, on Ande

rson’s c laims brou

ght unde r 42 U.S.C. § 1 983 al leging

the depr

ivation of

his constit

utionally protected right of i ntimate a ssociation. Beca use rea sonable juro rs could conclude only tha t the City’s policy

forbidding Anderson from dating a higher-ra

nking colleague

rati onally furthered a legitimate gover

nmenta l interest, we conclude that the district c ourt shoul d

have granted summary

judgment for the City rather than Ande rson.
I

In1999, Ande rson, a police officer for the City of LaVerg ne, began a romant ic relat ionship wit

h Lisa L ewis, anNos. 02-6094/6248 Andersonv. LaVerg ne, et al. 3

administrative assistant for the police department. Three months later, Ch

ief of Pol ice Howa

rd Morris

or dered Anderson and Lewis to “cea se all contact with each othe r” outside of the workplace. Morris issued this order because he b elie ved that intra-office dating between e mployees of different ranks (Lewis outranke d Anderson) mi ght lea d to sexual har

assment c laims ag ainst the d epartme nt. Despite Morris’s order, Anderson and L ewis continued their relationship. When Lewis eventu ally told Anderson she wanted to en d the re lationship, a disturbance of some sort involving Anderso n occurr ed at L ewis’s a

partmen t. The DavidsonC ounty

police investigated but did not file any charg es. A fter t he LaVerg ne Police Department’s Inte rnal Affairs Divi sion compl eted i ts own inves tiga t ion, Morr is termina ted An derson f

or failin g to foll ow Morris ’s order to stop seeing Lew

is outside of

the office . Morris im

mediatel y reconsidered, ho w ever, and offered Anderson the option of
res igni ng without the department placing any negative informationabout the incident at Lewis’s apa rtment i n his employment

record . Anders on acce

pted this offer, resigning on July 29, 1999.

InApril 2000, Anderson filed this sui t aga inst the City of LaVerg ne and Morris (individually and in his officia l capa cit y), alleging that Morris’s order violated Ande rson’s First and Fourteenth Amendment r ight of i

ntimate association, and seeking damages under § 1 983. Def

endants moved for summary judgme

nt. The district court

granted the motio n with resp ect to the claims ag ainst Morr

is in his individual capaci ty but su a spon te gr anted s ummary judgme nt infavor of Anderson on his claims ag ainst the City and Morris in his offi cial capaci ty ( the cour t later di smissed thi s claim against Morris as redundant with the claim ag ainst the City). Th e dist

rict court ruled that the policy prohibiting intra-office dating w as not ra tionally related to a leg itimate government

interest because the intere st the policy advanced—avoiding

sexual harassment claims—wa s not a “police interest.” A jury awarde d Anders on $10,283 .86 in 4 Andersonv. LaVerg ne, et al. Nos. 02-6094/6248

back pay and $5,500 in intangible damages. Both parties appeal—the City

seeking a reversal o f the district court’s denial of its motion for summary judgment, a nd Anderson seeking a new tri al on the a

mount of da

mages.
II

Ingranting summary

judgment for Anders on, the district court misapplied cases involving expressive speech claims to Anderson’s intimate association claim. Moreover, the district court er ro ne ou sl y conc luded that the police department’s policy lacked a rational relationship to a legi timate government

interest. Thus, ev en though the district court articulated

the co rrect st

andard— rationa l basi s—fo r reviewing the polic e depar

tment’s po lic y, it erred

in its applicationof

that standard. We first explain why rational basis review a

pplies to A

nderson’ s i ntimate associa ti on claim, and then discuss why the police de partment’s prohibition agains t intra-o ffice d

ating sa tisfies th e ration al basis te st.
A. Intimate Association

The Constitution protects two distinct types of association: (1) freedom of expressive association, protected by the Firs t Amendment
, and (2) freedom of intimate association, a privacy interest derived from the Due Proc ess Clause of the F ourtee nth

Amendmen

t but also r

elated to the Firs t Amendmen

t. See Roberts v. United States Jaycees , 468 U.S. 609, 617-18 (1 984); Akers v. McGinnis , 352 F.3d 1030, 1035 (6th Cir. 2003) ; Corrigan v. City of Newaygo , 55 F.3d 1211, 1214–15 (6th Cir. 1995). With respect to expressive association, the Supreme Court “has re cognize d a righ t to associa te fo r the purpose of engaging in those activities protect e d b y th e F ir st Am en dm en t— sp ee ch , a ss em bl y, pet ition for the redress of grieva nces, and the exercise of religi on .” Roberts , 468 U.S. a t 618. Conc erning

intimate association, the Supreme Court “has concluded tha t choices to enter into and maintain certain intimate human relation ships must

be secured against undue intrusion by theNos. 02-6094/6248 Andersonv. LaVerg ne, et al. 5

State because of

the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” Id. at 617–18.

The persona

l relatio nship at iss

ue in this case do es not i nvolve constitutionally protected expressive ac tivity, and Anderson does not assert that the City denied hi s right to expressive association. Instead, this case involvesthe City’s alleged intrusion into Anderson’s personal relation ship with Lewis in violation of his right of intimate association.

The Supreme Court has explained that the r ight to intimate association“receives protection as a fundamenta l element of personal liberty.” Id. a t 618. The kinds of personal associations entit led to constitutional protection are charac teriz ed by “relative smallness, a high degre e of selectiv ity in decisions to begin and maintain the affiliation,
a nd sec lusion from others in critical aspects of the relationship.” Id. at 6 20. In Board of Di rectors o f Rotary International

v. Rotary Club of Duar

te , the Court emphasized that although the “precise bou ndar ies” of the intimate associationright

were unclear, constitutional protection was notrestricted to relationships among family members. 4 81 U.S. 537, 545 (1987). Instead, the Con stitu tion “pro tects those relationships . . . that presuppose ‘deep attachments and commitmen

ts to the nec essarily

few othe r individuals with whom one shares not only a special community

of thoug hts, experien ces, and beliefs but

also distin

ctly personal aspects of one’s life.’” Id. (quot ing Robert s , 4 68 U.S. at 619–20). Therefore, in addition to marriage, courts have recog nized both persona

l friendships and non-marita l romantic relationships as the ty

pes of “h ighly persona l relationsh i ps” within the ambit o f intimate

associa tio ns con templated by Roberts

. See, e.g. , A kers , 352 F.3d 1039–40 (“Personal friendship is protected as an intimate association.”).

Giventhese precedents, we find, at least for summary judgment purposes, that

Anderso n’s rela

tionship wi

thLewis
was an “intimate association.” Construing the facts in a light 6 Andersonv. LaVerg ne, et al. Nos. 02-6094/6248

mo st favora ble to Anders on, he and Lewis lived toge ther a t
some point, were romantica lly and sexually involved, and Anderson was mo nogam ous in the relationship. The relation ship therefore involved an attachment to an individual with whom Anderson shared the “distinctly personal aspects of [his] life.” Roberts , 468 U.S. at 620.

But the relationship’s status as an “intimate assoc iati on” does notend our inq

uiry . We mu st next

consider whether the City’s poli cy prohib itin g intra -offi ce dati ng const ituted a “direct and substan tial inter ferenc e” with A

nderson’ s intima

t e a ssocia tions. Akers , 352 F.3d at 1040. A “direct and substantial interference” with intimate associations is subject to strict scrutiny , whil e les ser inter ferenc es are s

ubject to rational basis review. Id. A s e xplained in Akers , this court has developed a general rule that we will find “direc t and substantia l” burdens on intimate associations “only where a l arg e portion of those affected by the rule are absolutely

or largel y prevented from [forming intimate associations], or where those af

fected by t he rule a re absol ute ly or l argel

y prevented from [for ming intimate ass ociation s] wi th a la rge portion of the otherwise el igible populatio n of [peopl e with whom they could form intimate assoc iations].” Id. Becau se Anderson continue d to enjoy

the abilit

y to form intim at e associations with anyone other tha n fellow police department employees

of diffe ring ra nk, the de

partmen t’s p olicy

is subject to rational basis review.

B. Rational Basis Review Contrary to the districtcourt’s conclusion, the City’s policy is rationally rela

ted to a leg itimate g overnme nt intere st. The City barred dating relationships between police depa rtment employees

of diffe rent ra nks to promote its inte rest in avoiding sexu al harassment suits. Such preventive policies
are common a mong government employ ers. For example, this court has upheld policies prohibiting marriage a mong municipal employees, Vaughn v. Lawrenceburg Power Sys. , 269 F.3d 703, 712 (6th Cir. 2001), and requiring the transferNos. 02-6094/6248 Andersonv. LaVerg ne, et al. 7

of one spouse if two employee s of the sam e sch oo l m ar ry, Montgome

ry v. Carr , 101 F.3d 1117, 1130–31 (6th Cir. 1996).
Moreover, the district court’s proposition that the City’s rational interest

could only be one re lating to the substance of police work ( such a s secu rity or in vesti ga tion) lacks legal support. The caselaw clea rly recog nizes that t

o be rati onal, the basis for an em

ploymen t policy need not rela

te to the specif ic, substantive purpose of the organization but may
concern general employ

me nt practices, because such pract ice s are critica l to the organization’s overall functioning. See, e.g., Wright v. Metro Health Me

d. Ctr.
, 58 F.3d

1130, 1137

–38 (6th Cir. 1995) (upholding policy requiring transfer of

one spouse as rationa

lly r elated to le gitimate government interests of avoiding potential conflicts in the workplace and preventing deterioration

of workplace morale) ; Parks v. City of Warner Robins, Georgia , 43 F.3 d 609, 615 (11th Cir. 1995) (up holding policy requiring resignation of one spouse as
means of “avoiding conflicts of interests bet wee n workrelated and fami ly- related

obligat ions; reducing

favoritism or
even the appearance of favor

itism; preven ting family co nflicts froma ffect ing the workplace; and, by limiting inter-office datin g, decreasing

the likelihood of sexual harassment in the workplace”). Thus, the district court erred in concluding that the police department’s policy was not re asonably

related to
a legitima te government interest. Because its policy satisfies the rationa l basi s standar d, the City

did not viol ate Anderson’s co ns ti tu ti on al ri gh ts . T he Ci ty the refore was entitled t o su mmary judgme

nt on Anderson’s claims under § 1983.

III

For the fore going

reasons , we rev erse the district court’s grant of summary judg

ment in favor of Anderson, vacate the damages an d a tt or ne y’ s fee aw ards, an d remand

with instructions to enter judgment for the City on all claims.