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Larry Davis v. Plaintiff-Appellant

February 3, 2012

LARRY DAVIS, KRIS OCKOMON, ET AL.,
v.
PLAINTIFF-APPELLANT, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 08-cv-270-William T. Lawrence, Judge.

The opinion of the court was delivered by: Kanne, Circuit Judge.

ARGUED OCTOBER 20, 2011

Before CUDAHY, KANNE, and SYKES,Circuit Judges.

Larry Davis was terminated from his position as Senior Humane Officer ("SHO") for the City of Anderson after refusing to support the successful mayoral campaign of Kris Ockomon. Davis brought suit in district court, claiming that the position of SHO was not subject to political termination and that his dismissal violated the First and Fourteenth Amendments. The district court, relying on an official job description, found that the SHO was a policymaking position, and therefore Davis could be dismissed for political reasons. We affirm on the basis that City ordinances authorized the SHO to exercise policymaking discretion.

I.BACKGROUND

Davis was appointed SHO for the City in 1988, following his work on the successful campaign of Democratic mayoral candidate Mark Lawler. The SHO is the department head of the City's animal shelter and animal control operations, working with the Board of Public Safety to implement and enforce animal control policies. Davis was not initially interested in becoming SHO, and had instead requested to be placed in a number of other positions in the Lawler administration. But all of the positions he had hoped for were awarded to other individuals, and he was instead offered the job of SHO. Despite having no relevant prior experience in animal control, Davis accepted. Davis's appointment meant the ouster of the incumbent SHO, Pam Marshall. Marshall subsequently filed suit against the City, arguing that the she could not be replaced on the basis of political affiliation. The suit was settled out of court, and thus Davis secured his employment.

Davis held his position as SHO with relative job security throughout Lawler's tenure as mayor, which lasted through 2003. Nevertheless, Davis sought assurances from various City officials that he could not be replaced for political reasons, lest he suffer a similar fate as his predecessor. After Lawler decided not to seek re-election, Kevin Smith, a Republican, was elected mayor. Smith took office on January 1, 2004, and promptly replaced many Democratic officials with members from his own party. But he did not replace Davis, ostensibly because he thought that the SHO could not be terminated for political reasons. As such, Davis remained SHO throughout Smith's tenure as mayor as well, and Davis felt the security of his position was no longer in question.

Davis's trouble began during the 2007 Democratic primary election for mayor, when Darryl Rensil ran against Kris Ockomon. Davis actively supported Rensil's campaign, but much to Davis's chagrin, Ockomon won the primary. Following his victory, Ockomon reached out to Davis in an attempt to garner his support for the upcoming general election. Davis refused, however, purportedly because he thought Ockomon had not lived in the City long enough to satisfy the residency requirement to become mayor. Nevertheless, Ockomon emerged victorious in the general election. Having incurred Ockomon's political wrath, Davis was terminated as soon as Ockomon took office on January 1, 2008. Ockomon replaced Davis with Larry Russell, who was as equally unqualified for the position as Davis had been when he was appointed in 1988.

On February 29, 2008, Davis brought suit against Ockomon and other City officials in the United States District Court for the Southern District of Indiana. Pursuant to 42 U.S.C. § 1983, Davis claimed that he was terminated from his position in violation of the First and Fourteenth Amendments. On December 11, 2009, the district court granted the City officials' motion for sum-mary judgment regarding Davis's § 1983 claim, and dismissed without prejudice a separate state-law claim also brought by Davis. Applying Riley v. Blagojevich, 425 F.3d 357 (7th Cir. 2005), the district court first determined that the official job description controlled the analysis of whether Davis could be replaced for political reasons because the job description was reliable. The district court found the job description reliable because it had been created by an independent consulting firm using nationally recognized standards and practices. The description was also kept current through three updates. Moreover, the job description had not been modified since 2000, and thus there was no evidence that any City official had tinkered with it in a way to render the description systematically unreliable.

The district court then examined whether the SHO's duties, as provided for in the job description, could be characterized as policymaking and thus properly subject to removal on the basis of political affiliation. The job description included a number of duties involving significant discretionary authority, including: preparing, submitting, and administering the depart-ment budget; formulating and implementing long-range plans for animal control; presenting policy and program initiatives; and negotiating contracts for animal control services. Due to the broad discretion exercised by the SHO, the district court found that Davis was a policy-maker, and that therefore his termination was proper.

On appeal, Davis argues that the district court erred in granting summary judgment because the job description relied on by the court was systematically unreliable. Furthermore, Davis asserts that the SHO does not exercise sufficient discretionary authority to be considered a policymaker.

II. ANALYSIS

We review the grant of summary judgment de novo, construing all facts and drawing all reasonable inferences in favor of the nonmoving party. Moore v. Vital Prods., Inc., 641 F.3d 253, 256 (7th Cir. 2011). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

The City officials concede that Davis was terminated for political reasons, and thus the only issue on appeal is whether the SHO is a position subject to political termination. The First Amendment "forbids government officials to discharge or threaten to discharge public employees solely for not being supporters of the political party in power, unless party affiliation is an appropriate requirement for the position involved." Rutan v. Republican Party of Ill., 497 U.S. 62, 64 (1990). After a plaintiff demonstrates that he was terminated for political reasons, the government then "bears the burden of establishing that a ...


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