BROWN v. SMITH et al

Filing 81

ENTRY on Motion for Judgment as a Matter of Law - Because it is not clear from the face of the job description whether the duties of the Street Supervisor position involve policymaking functions, this question is appropriately one for the jury. Therefore, Defendant's motion is DENIED. Signed by Judge Tanya Walton Pratt on 7/22/2014.(TRG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JACK BROWN,
Plaintiff,
vs.
KEVIN SMITH in his official capacity as
Mayor of the City of Anderson,
CITY OF ANDERSON,
Defendants.

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Case No. 1:12-cv-01712-TWP-DML

ENTRY ON MOTION FOR JUDGMENT AS A MATTER OF LAW
This matter is before the Court on Defendant City of Anderson’s renewed oral Motion for
Judgment as a Matter of Law under Rule 50 of the Federal Rules of Civil Procedure. The Court
denied Defendant’s motion with respect to Plaintiff Jack Brown’s ADA claim, and took the
motion under advisement with respect to Mr. Brown’s § 1983 First Amendment claim.
Defendant argues that the Court should find that the Street Supervisor position is exempt from
First Amendment protection as a matter of law based upon the official job description. For the
reasons stated below, the Motion is DENIED.
The Court previously dealt with this issue in its entry on Defendants’ motion for
summary judgment, finding that there was at least a question of material fact as to whether
political loyalty is a legitimate requirement for the job of Street Supervisor, and that this
determination could not be made as a matter of law. (Filing no. 45, at ECF p. 15). Defendant
now argues that Riley requires a finding that the Street Supervisor position is exempt from First
Amendment protection because of the reliability of the job description, and the question of
exemption from the First Amendment is one for the Court, not the jury. Defendant argues that

the reliability of the Street Supervisor job description causes it to fall within the “safe harbor”
provision set forth in Riley. “If the official job description is objective, as shown by the methods
by which it is created, vetted, and updated to the present, then the elected officials can rely on it
in deciding whom they can replace on political grounds.” Riley v. Blagojevich, 425 F.3d 357,
365 (7th Cir. 2005). The reliability of a job description, however, does not automatically dictate
that the question of whether a position is or is not one for which political loyalty is a valid
qualification can be decided as a matter of law by the Court. The court in Riley additionally
stated “our decision today [does not] stand for the proposition that every Elrod/Branti case can
be resolved just by reading the job description. The description might leave the reader unclear
whether the job confers any policymaking or confidential discretion, and then additional
evidence would be necessary.”

Id.

Such is the case here, where the Court has already

determined, and now reiterates, that it is unclear from the face of the job description whether the
duties of the Street Supervisor position involve policymaking duties. This case is distinguishable
from the situation in Riley, which involved job descriptions that “ascribe[d] significant
policymaking responsibilities” to the employees in question. Id; see also Powers v. Richards,
549 F.3d 505, 510 (7th Cir. 2008) (analyzing the specific duties outlined in the job description to
determine that an Executive Secretary had broad discretion to make policy).
In addition, the Court also based its ruling dismissing the individual claims against Mayor
Kevin Smith on a finding that “the Street Supervisor position is one such position that falls
somewhere between the strictly menial governmental worker and the policymaking or
confidential assistant position, thus it cannot be said that Mr. Brown’s termination was an
obvious violation of a constitutional right such that Mayor Smith should not personally be
protected by qualified immunity.” (Filing no. 45, at ECF p. 16-17). Because of this ambiguity,

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Mayor Smith himself was entitled to rely upon the job description and claim qualified immunity,
just as Governor Rod Blagojevich was individually protected by qualified immunity in Riley.1
425 F.3d at 360 (“Public officials need not predict, at their financial peril, how constitutional
uncertainties will be resolved.”) (quoting Hosty v. Carter, 412 F.3d 731, 739 (7th Cir. 2005)).
Riley leaves undisturbed the principle that “whether a position is exempted from the First
Amendment patronage dismissal ban is a factual one that should ordinarily be left for a jury to
determine,” and where the question of whether a position involves policymaking is “sufficiently
unclear” it is one properly left to the jury. Pleva v. Norquist, 195 F.3d 905, 912 (7th Cir. 1999)
(citing Soderbeck v. Burnett Cnty., Wis., 752 F.2d 285, 288–89 (7th Cir. 1985)). Riley merely
stands for the proposition that the actual duties performed by the employee do not dictate
whether the position is one for which political loyalty is or is not a valid qualification. 425 F.3d
at 360-61 (“Our focus is on the ‘inherent powers’ of the office, not what any individual
officeholder actually does.”). Because it is not clear from the face of the job description whether
the duties of the Street Supervisor position involve policymaking functions, this question is
appropriately one for the jury. Therefore, Defendant’s motion is DENIED.
SO ORDERED.

07/22/2014
Date: _________________

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

1

The State of Illinois could not be a party to the Riley case, nor could Governor Blagojevich in his official capacity,
due to Eleventh Amendment immunity.

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Distribution:
Richard Bruce Walker
[e-mail]
Anthony W. Overholt
FROST BROWN TODD LLC
[e-mail]
Jeffrey A. Macey
MACEY SWANSON & ALLMAN
[e-mail]
Quincy Erica Sauer
MACEY SWANSON & ALLMAN
[e-mail]
Barry A. Macey
MACEY SWANSON AND ALLMAN
[e-mail]

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