NOT RECOMMENDED FOR FULL - TEXT PUBLICATION File Name: 14a0155n.06
No. 13

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Robert Bean, et al. , Plaintiffs

- Appellees ,

v. Steven Teague, et al. , Defendants

- Appella nts . ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

OPINION

BEFORE: CLAY and DONALD, Circuit Judges; MAYS, District Judge. *
Samuel H. Mays , District Judge. Defendants

- Appellant s , Steven Teague (“Teague”), individually and in his official capacity as the Monroe County Road Superintendent, and Monroe County, Tennessee (“Monroe County”), appeal the district court’s denial of their motion for summary judgment , in which they asserted T eague’s qualified immunity. Plaintiffs

- Appellees contend that this Court has no jurisdiction to review the district court’s interlocutory decision
. We agree.

* The Honorable Samuel H. Mays, Jr., United States District Judge for the Western District of Tennessee, sitting by designation.No. 13

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- I. Plaintiffs

- Appellees filed their complaint against Teague and Monroe County on October 15, 2010. Plaintiffs

- Appellees filed an amended complaint on November 5, 2011. The y alleged that Defendants

- Appellants violated 42 U .S.C. § 1983 by: (1) terminating or refusing to rehire the Plaintiffs

- Appellees in retaliation for their political association s in violation of the First Amendment; a nd (2) depriving the Plaintiffs

- Appellees of their reasonable expectation of future employment with the Monroe County Road Department (the “Road Department”) in violation of the Fourteenth Amendment ’s Due Process C la use . Defendants

- Appellants filed their motion for summary j udgment on January 8, 2013, contending that: (1) Plaintiffs

Appellee s could not establish a case of retaliation; (2) Teague would have terminated their employment even if they had not engaged in protected activity; (3) Teague was entitled to qualified immunity; and (4) Plaintiffs

- Appellees could not s how that Defendants

- Appellant s violated Plaintiffs

- Appellees ’ substantive or procedural due process rights. The district court denied Defendants

- Ap pellants’ motion for summary judgment on April 3, 2013. The district court concluded that: (1) there was a material factual dispute about Teague’s motivation for firing or refusing to rehire Plaintiffs

Appellees; (2) Teague was not entitled to qualified i mmunity forNo. 13

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- that reason; and (3) Monroe County could be liable for Teague’s actions. Defendants

- Appellants timely filed this interlocutory appeal based on the district court’s denial of qualified immunity.
II. The Road Department is responsible for mainta ining at least

seven - hundred

- sixty (760) miles of road in Monroe County,
Tennessee . Phillip Axley (“Axley”) was the Monroe County Road Superintendent from September 1, 2002, through Augu st 31, 2010. At the gene ral election on August 3, 2010 , Teague defeated Axley
. Teague became Road Superin tendent on September 1, 2010. Monroe County employed Plaintiffs

- Appellee s as manual laborers. They were not in policymaking positions. They were active supporters during Axley’s campaign. Plaintiff

- Appellee Robert Bean talked to people about voting for Axley. Teague observed Plaintiffs

- Appellees Carl Bivens, David Cline, Jimmy Cline, Gary Freeman, Ralph Moser, Michael Moser, and Donny Wattenbarger handing out Axley campaign literature at the polls. Plainti ffs

- Appellees Jimmy Cline, Gary Freeman, and Donny Wattenbarger spoke to Teague while they worked the polls for Axley. Plaintiff

- Appellee Mal chiah Bivens supported Axley in his 2002 campaign against Teague’s father, Ralph Teague, and in Axley’s 2010 campa ign against Teague. Plaintiff

- Appellee James T. Bryant displayed Axley’s campaign signs in his yard, placedNo. 13

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- Axley bumper stickers on his car, and sp oke with friends about Axley. Plaintiff

- Appellee Robert Couch filled in for Axley poll workers on election day. Plaintiffs

- Appellees Charles Gibbons and Floyd Shaffer worked the polls for Axley on election day. Teague introduced himself to Gibbons at the polls that day. Plaintiff

- Appellee Joel Hollingshead talked to people about Axley and took yard si gns t o supporters on request. Plaintiff

Appellee Sam Smith spoke to people about Axley. Plaintiff

Appellee William Stewart, III atten ded rallies for Axley
. Teague developed concerns about the financial condition of the Road Department during the election. Teague had no firsthand knowledge of the financial condition of the Department before assuming office. Axley testified that the number of Road Depart ment employees in August 2010 was in the middle to high thirties. He testified that he had at most forty (40) employees. Teague posted a letter at the Road Depart ment some time after the election. The letter stated that Road Department employees were re quired to apply for jobs in Teague’s administration by August 20, 2010 . A stack of applications was provided. Ten (10) Plaintiffs

- Appellees submitted applications (the “Applicants”)
. 1 The Applicants were: Robert Bean, Carl

1 Defendants

- Appellant s initially stated that only nine Plaintiffs submitted applications. Plaintiff

- Appellee James T. Bryant testified that he hadNo. 13

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- Bivens, Mal chiah Bivens , James T. Bryant, Robert Couch, Gary Freeman, Joel Hollingshead, Floyd Shaffer, Sam Smith, Jr., and Donny Wattenbarger. Seven (7) Plaintiff s - Appellees did not submit applications (the “Nonapplicants”). 2 The Nonapplicants were: David Cline, Jimmy Cline, Charles Gibbons, Joseph McNabb, Michael Millsaps, Ralph Moser, and William Stewart, III. Axley issued se paration notices (“Notices”) to all Road Department employees on August 31, 2010. The Notices stated that the separation was “permanen t” and due to “lack of work.” Axley testified that he issued the Notices so the Road Department employees would receive unemploym ent if they were not rehired. The parties dispute whether Axley fired the Road Department employees when he issued th e Notices. The Road Superintendent is the primary decision maker for Road Department employment. Teague reviewed applications and conducted interviews during August 2010. Te ague could not officially hire anyone until September 1, 2010. None of the Plaintiff s - Appellees was rehired o n or after September 1, 2010. Teague hired ten (10) new employees o n September 1, 2010. They were: James Ronald Thomas, Barry West, Misty Brannon, Patricia Teague, Matthew Cansler, Joshua Harris, Chuck Hunt,

submit ted an application. Defendants

- Appellants agreed for purposes of summary judgment and admitted in th eir appellate brief that Bryant had applied. 2 Jacquleen Axley was initially a plaintiff in this case. Jacquleen Axley did not submit an applica tion. She voluntarily dismissed her claims after t he district c ourt denied Defendants

- Appellants ’ motion for su mmary j udgment.No. 13

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- Norman Nichols, Robert Rodgers, an d Larry Valentine. When he hired them, Teague knew that Patricia Teague, Barry West, and Robert Rodgers had supported him politically
. Teague had hired two (2) other new employees, Bass Ledford and Ralph Martin, by September 7, 2010. When Teague hired Bass Ledford, Teague knew that Ledford had supported him polit ically
. Bass Ledford had worked for Teague’s father, Ralph Teague, when Ralph Teague was the Road Superintendent. Teague rehired fourteen (14) em ployees on September 1, 2010. A majority of those employees had worked for Ralph Teague whe n he was Road Superintendent. Plaintiffs

- Appellees Robert Bean, James T. Bryant, Raymond Cline, Jimmy Cline, Robert Couch, Gary Freeman, Charles Gibson, Joseph McNabb, Michael Millsaps, Ralph Moser, Floyd S haffer, Samuel Smith, Jr., William Stewart, III , and Donny Wattenbarger reported to work at the Road Department on Sep tember 1, 2010
. They spoke with Teague and recorded the conversatio n. Teague told them he had not fire d them. He said he did not have a ny work for them , but he would notify them if he could employ them. There is no evidence Teague said anything about the financial condition of the Ro ad Department. The parties dispute whether the Road Department’s financial condition was dire on Septem ber 1, 2010. Axley requested $3, 900,000.00 in his annual budget because that amount wasNo. 13

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- enough to “ get by.” The Road Department budget had been approved by the State of Tennessee before September 1, 2010. There was a positive balance in the Road Departm ent’s budget of $803,838.29 on September 1, 2010. There was a negative balance of $115,452.37 on September 30, 2010. Teague applied for and received a $500,000.00 tax anticipation note from the State of Tennessee. He had reduced the number of Road Depar tment employees to seventeen (17) by the end of 2010. Plaintiffs

Appellees filed the complaint in this acti on after Teague failed to employ them.
I I I. “[A] district court’s denial of a claim of qualified immunity, to the extent that it turns on an is sue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 . . . .” Mitchell v. Forsyth , 472 U.S. 511, 530 (1985). “[A] qualified immunity ruling [] is . . . a legal issue that can be decided with reference only to undisputed facts and in isolation from the remaining issues of the case.” Id. at 529 n.10. A district court’s determination that the summary judgment r ecord raises a genuine issue of fact about the merits of a constitutional claim is not a “final decision” for purposes of appeal. Johnson v. Jones , 515 U.S. 304, 313 (1995); Canter v. Cnty. Of Otsego , 14 F. App’x 518, 521 (6th Cir. 2001).No. 13

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- This Court rev iews the application of qualified immunity de

novo. Holzemer v. City of Memphis , 621 F.3d 512, 519 (6 th Cir. 2010)
. There are two criteria for analyzing qualified immunity : (1) whether “ the facts that a plaintiff has . . . shown (Rules 50, 56) make out a violation of a constitutional right ”; and (2) “whether the right was clearly established.” Pearson v. Callahan , 555 U.S. 223, 232 (2009 ) (quotation marks omitted) (citing Saucier v. Katz , 533 U.S. 194, 201 (2001))
. 3 “Only if a defendant raises a purely legal argument un der . . . this analysis may [this Court] exercise jurisdiction over an interlocutory appeal from a denial of summary judgment in a qualified immunity case.” Canter , 14 F . App’x at 522.
Monroe Count y argues that its liability is “inextricably intertwined” with Teague’s because, if Plaintiffs

- Appellees fail to show that their constitutional rights were violated, the appeal necessarily resolves the pendent claim against Monroe County. Mattox v. City o f Forest Park , 183 F.3d 515, 523

- 24 (6th Cir. 1999). The principal constitutional issue in this case is whether Teague retaliated against Plaintiffs

- Appellees for exercising their First Amendment rights when Teague terminated their

3 The Supreme Court has held that: “The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addr essed first in light of the circumstances in the particular case at hand.” Pearson , 555 U.S. at 236.No. 13

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- employment or refused to rehire them . T o establish a retaliation claim, a plaintiff must prove: “(1) that there was constitutionally

- protected conduct; (2) an adverse action by defendants sufficient to deter a person of ordinary firmness from continuing to engage in that condu ct; and (3) a causal connection between the first and second elements

–– that is, the adverse action was motivated at least in part by plaintiff’s protected conduct.” Eckerman v. Tenn. Dep’t of Safety , 636 F.3d 202, 207 (6th Cir. 2010 ). “A plaintiff succes sfully demonstrates a causal connection between the adverse action and the protected conduct by offering direct or circumstantial evidence indicating that the protected conduct was a substantial or motivating factor behind the adverse action against plaint iff.” Id. at 208. “If the plaintiff meets his burden of establishing retaliation, the burden shifts to defendants to prove by a preponderance of the evidence that the employment decision would have been the same absent protected conduct.” Id. (internal quotations marks omitted). 4 “[S]ummary judgment is warranted if, in light of the evidence viewed in the light most favorable to the plaintiff, no reasonable juror could fail to return a verdict for the defendant.” Id.

4 “ Unlike the burden

- shifting analysis in Title VII cases, if the defendants meet their burden, ” the plaintiff is not permitted to show pretext. Eckerman , 636 F.3d at 208 n.4.No. 13

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- IV . Teague argues that his actions were reasonable given the financial condition of the Road Department when he became Superintendent. Plaintiffs

- Appellees argue that the Court does not have jurisdiction because Teague’s challenge to the district court’s find ing that there is a disputed issue of material fact about Teague’s motivation is a challenge to the “correctness of the district court’s conclusion regarding the sufficiency of the evidence supporting plaintiffs’ . . . claims.” Canter , 14 F. App’x at 523. Teague’s actual motivation is a question of fact and is not reviewable on interlocutory appeal. Johnson , 515 U.S. at 313; Hoard v. Sizemore , 198 F.3d 205, 220 (6th Cir. 1999). The district court found that “[t]he most simple and obvious material dispute is the reason why Mr. Teague either fired or refused to rehire the Plaintiffs. The Defendants’ state of mind is a fact [] for the jury, not the Court, to reso lve.” Defendants

- Appellants’ argu ment that Teague’s failure to rehire Plaintiffs

- Appellees was reasonable based on the Road Department’s f inances is an attempt to “transform the factual issue of motivation into the legal question of objective reasonableness.” Hoard , 198 F.3d at 218 . To decide motivation would require the district c ourt to “resolve the factual dispute underlying the constitutional claim.” Id. at 217. This CourtNo. 13

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- explicitly rejected that approach in Hoard : “As long as plaintiffs produced evidence that cou ld support a finding th at [the d efendant] discharged them on the basis of their political affiliation, the district court was obligated under Crawford

- El to deny [the d efendant’s] motion for summary judgment.” Id. at 219 (citing Crawford

- El v. Britton , 523 U.S. 574 (1998))
.

“ The district court’s finding that the re is a factual dispute as to [ the d efendant’s] motivation, in turn, deprives this court of appellate jurisdiction . . . .” Id. That finding involves an issue of evidentiary sufficiency. If the district court “clearl y stated the fact that it believed to be in dispute” was a defendant’s motivation, this Court has no jurisdiction to consider the sufficiency o f plaintiff’s evidence about that motivation. Id. at 220. Teague also argues that the Nonapplicants cannot suc ceed on their retaliation claim because they did not apply to work in the Teague administration. T he record does not clearly establish that the Nonapplicants knew they had to reapply for jobs they already had, or that they had the opportunity to do so. Teague claims to have imposed a deadline of August 20, 2010 , to apply for positions in his administration by having a flyer post ed in the Road Department, al though he had no legal authorit y to hire anyone until September 1, 2010. The record does not establish when or where Teague’s flyer was posted. TheNo. 13

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- re cord does not establish that all of the Nonapplicants saw or should have seen the flyer. It is unclear whether the Nonapplicants knew they would be terminated on August 31, 2010 , eleven days after Teague’s proclaimed application deadline, and
t hus whether they had notice that they would be required to reapply for their non

- policymaking jobs in the Road Department.
L ike Teague’s motivati on in rejecting the Applicants, fact issues pervade the Nonapplicants’ retaliation claims. The district court clearly stated that there was a material factual dispute about Teague’s motivation for terminating Plaintiffs

- Appellees or refusing to rehire t hem
. T his Court has no jurisd iction over Teague’s appeal of the denial of summ ary judgment
. V. Monroe County argues that this Court should exercise pendent a ppellate jurisdiction over its appeal because the issues raised in Teague’s appeal are inextricably intertwined with Monroe County’s
. Because t his Court does not have jur isdiction to consider Teague’s appeal , we c annot assert pendent jurisdiction over Monroe County’s appeal.
V I . The district court found that th ere was a material factual dispute about Teague’s motivation in firing or failing to rehire Plaintif fs

- Appellees . Th is Court has no jurisdiction to reviewNo. 13

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- the district court’s decision
. This Court cannot assert pendent jurisdiction over Monroe County. Defendants

- Appellants’ interlocutory appeal is DISMISSED for lack of jurisdiction and the case is REMANDED for further proceedings
.