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No qualified immunity for judge accused of retaliating against bailiff who supported opposing candidate

By Kathleen Kapusta, J.D.

A presiding circuit judge was not entitled to qualified immunity on an employee’s Section 1983 claim that he retaliated against her for having supported the losing candidate in a judicial election, the Eighth Circuit ruled on interlocutory appeal. Accordingly, the appeals court affirmed the decision of the court below granting summary judgment to the county sheriff but denying it to the judge (Jenkins v. Tucker, May 23, 2017, Murphy, D.).

The county employee began working as a deputy sheriff in 1998 and within a year was working two part-time jobs: one as a road deputy patrolling the county and the other as a bailiff providing security in the county courthouse. When she began working full time as a bailiff in 2003, the presiding circuit judge arranged for her salary to move from the sheriff’s budget to the court budget.

A new judge in town. After that judge retired in 2011, a new judge was appointed to fill the vacancy. The newly appointed judge ran for election in 2012 against an associate circuit judge whom the employee supported. Upon winning the election, the appointed judge purportedly told the employee that he “want[ed] somebody that supports [him]” working for him.

And sheriff, too. As the presiding judge, he was responsible for approving the budgets for the court and the sheriff. When he transmitted the budgets to the county commissioners for approval shortly after the election, he moved the employee’s salary back into the sheriff’s budget. The county commissioners then decreased the sheriff’s personnel budget by an amount slightly less than the employee’s salary. The newly elected sheriff then gave the employee the choice of working as either a part-time bailiff or a full-time road deputy. The employee chose the bailiff position and her change to part-time resulted in the loss of her health insurance coverage and her social security and retirement benefits.

Lower court proceedings. She then sued the sheriff and judge in their individual and official capacities under Section 1983 alleging they retaliated against her for having supported the losing judicial candidate. Both defendants moved for summary judgment and the district court granted the sheriff’s motion, finding no evidence to show he knew the employee had supported the losing candidate or that he had taken any retaliatory action against her. The court, however, denied the judge’s motion, concluding that his statement to the employee provided direct evidence of retaliatory motive and that a fact issue remained as whether the budget transfer caused an adverse employment action.

Qualified immunity. On interlocutory appeal, observed the Eighth Circuit, its review was limited to determining purely legal issues such as whether a reasonable fact-finder could find a violation of the employee’s rights and whether the law establishing the violation was clearly established at the time in question.

Adverse action? As to the employee’s retaliation claim, the parties agreed that she established she was engaged in protected speech by supporting the associate judge in the election. At issue, however, was whether she suffered an adverse employment action in retaliation for her protected speech. While the loss of her benefits after she accepted the part-time bailiff position amounted to material changes in the terms of her employment, the judge argued that she could have accepted the road deputy position and not experienced an adverse employment action.

The court, however, found a fact dispute as to whether serving as a road deputy was a lateral transfer or a demotion, as the positon was held by many more deputy sheriffs and was less prestigious. Thus, said the court, whether she remained working part time as a bailiff or full time as a road deputy, either change could have amounted to an adverse employment action.

There was also evidence that the judge was causally connected to the adverse action; he admitted he knew there was a campaign sign for his opponent in the employee’s yard, and the adverse action occurred within one month after his allegedly telling her he wanted an employee who had supported him. And while the judge argued that the county commissioners independently decided to reduce the sheriff’s budget, the employee provided some evidence that he was involved in the decision. Thus, said the court, a reasonable factfinder could conclude that the judge violated the employee’s right to support an electoral candidate of her choice.

Clearly established. Finally, the court found that it is clearly established that a government employer cannot take adverse employment actions against its employees for exercising their First Amendment rights by participating in electoral activities and this right was clearly established at the time of the alleged violation. Thus, the decision of the court below was affirmed.