Mahn v. Jefferson County et al

Filing 142

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendant Howard Wagners motion for summary judgment is DENIED. IT IS FURTHER ORDERED that the trial of this action originally set for January 14, 2018 is RESET to Monday, March 4, 2019 at 9:00 a.m. A fi nal pre-trial conference is set for Thursday, February 28, 2019 at 11:00 a.m. IT IS FURTHER ORDERED that the parties pretrial materials must be filed no later than February 11, 2019 and all motions in limine must be filed no later than February 20, 2 019. All other provisions of the Amended Case Management Order of August 15, 2018 remain in full force and effect. 130 ( Jury Trial set for 3/4/2019 09:00 AM before Magistrate Judge Nannette A. Baker., Pretrial Conference set for 2/28/2019 11:00 AM before Magistrate Judge Nannette A. Baker.) Signed by Magistrate Judge Nannette A. Baker on 12/18/18. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JAMIE MAHN,
Plaintiff,
v.
JEFFERSON COUNTY, et al.,
Defendants.

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Case No. 4:14-CV-1806 NAB

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Howard Wagner’s Motion for Summary
Judgment. [Doc. 130.] Plaintiff Jamie Mahn filed a Memorandum in Opposition and Defendant
Howard Wagner filed a Reply Brief. [Docs. 137, 140.] For the following reasons, the Court will
deny Defendant Howard Wagner’s Motion for Summary Judgment.
I.

Procedural Background
Plaintiff Jamie Mahn filed this action against defendants Jefferson County, State of

Missouri; 23rd Judicial Circuit, State of Missouri; Wes Wagner, individually and in his official
capacity as County Clerk/Election Authority of Jefferson County, Missouri; Howard Wagner,
individually and in his official capacity as the former Circuit Clerk of the 23rd Judicial Circuit,
Jefferson County, Missouri; Jeanette McKee, individually and in her official capacity as Unit
Manager within the Circuit Clerk’s Office, Jefferson County; and Michael Reuter, in his official
capacity as the current Circuit Clerk of the 23rd Judicial Circuit. [Doc. 1.] In Plaintiff’s First
Amended Complaint, she presented three counts against the defendants. [Doc. 28.] Count I was
a claim for violation of the First Amendment-patronage discharge from employment brought
pursuant to 42 U.S.C. §§ 1983 and 1988 against Defendants Jefferson County, Wes Wagner,

Howard Wagner, Jeanette McKee, and Michael Reuter. In Count II, Mahn alleged a Family
Medical Leave Act (FMLA), 29 U.S.C. § 2601 claim against Defendant 23rd Judicial Circuit.
Count III, a claim under the Missouri Human Rights Act (MHRA) was voluntarily dismissed
without prejudice by Plaintiff on April 2, 2015. [Docs. 41, 47.] The Court dismissed Plaintiff’s
claims against Jeannette McKee in Count I on May 4, 2015. [Doc. 55.] Count II, the FMLA
claim, was voluntarily dismissed by Plaintiff on November 10, 2015. [Docs. 74, 75.]
On March 3, 2016, the Court granted summary judgment in favor of Defendants
Jefferson County, Wes Wagner, Howard Wagner, and Michael Reuter on Plaintiff’s remaining
claim in Count I for partronage discharge under the First Amendment. [Doc. 110.] Plaintiff
filed an appeal with the Eighth Circuit Court of Appeals. The Eighth Circuit affirmed in part and
reversed in part the court’s summary judgment order. The Eighth Circuit remanded this case to
allow the Court to rule on whether Defendants Howard Wagner and Michael Reuter were
entitled to qualified immunity as a defense to Count I. Mahn v. Jefferson County, 891 F.3d 1093
(8th Cir. 2018). Defendant Howard Wagner filed a motion for summary judgment on this issue.
Therefore, this order will only address whether Defendant Howard Wagner is entitled to
qualified immunity as a defense to the claims in Count I of Plaintiff’s Complaint.
II.

Factual Background 1
In 2012, Defendant Howard Wagner hired Mahn as a deputy clerk in the 23rd Judicial

Circuit. In 2014, Howard Wagner did not file for reelection and he supported fellow Democrat,
and current Chief Deputy Clerk Jeanette McKee to replace him. Mahn alleges that Howard
Wagner “forcefully impressed upon her the need for her to vote for McKee and the Democratic
ticket.” She alleges that she told him, “I’ll vote for whoever I want to, and what you’re
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The parties submitted substantially the same facts as submitted in the briefing for the first motion for summary
judgment. The Court is using the succinct summary provided in the Eighth Circuit opinion on appeal in this action.
Mahn, 891 F.3d at 1095, 1098.
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threatening is unconstitutional.”

McKee was running unopposed in the Democratic Party

primary. Mahn voted in the August 5, 2014 Republican Party primary. After she voted, she
alleges that Howard Wagner told her, “Just wanted to let you know that, you know, I know how
you voted. I don’t think you made the right decision. You know this could cost you your job.”
On September 19, 2014, Howard Wagner terminated Mahn’s employment, stating in a letter the
following reasons for her termination, “poor work performance, unable to complete tasks
correctly and within given time lines. Abuse of sick leave, insubordination by lying to assigned
supervisor.” Mahn believes that she was terminated because Howard Wagner knew she voted in
the Republican primary. Howard Wagner denies that she was terminated for other than work
performance. Mahn had documented performance issues in 2013 and 2014, including multiple
negative performance reviews. She also admits that she overdrew her sick leave on at least one
occasion.
III.

Standard of Review
A party may move for summary judgment, identifying each claim or defense on which

summary judgment is sought. Fed. R. Civ. P. 56(a). “The court shall grant summary judgment 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. Civil P. 56(a). A party resisting summary
judgment has the burden to designate the specific facts that create a triable controversy. See
Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1114 (8th Cir. 2004).

Self-serving,

conclusory statements without support are not sufficient to defeat summary judgment. Armour
and Co., Inc. v. Inver Grove Heights, 2 F.3d 276, 279 (8th Cir. 1993). “To survive a motion for
summary judgment, the nonmoving party must substantiate his allegations with sufficient
probative evidence that would permit a finding in his favor based on more than speculation,

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conjecture or fantasy.” Putnam v. Unity Health Sys., 348 F.3d 732, 733-34 (8th Cir. 2003).
“Mere allegations, unsupported by specific facts or evidence beyond the nonmoving party’s own
conclusions, are insufficient to withstand a motion for summary judgment.” Thomas v. Corwin,
483 F.3d 516, 527 (8th Cir. 2007). In passing on a motion for summary judgment, it is not the
court’s role to decide the merits. “Where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Torgerson v.
City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011).
IV.

Discussion
The First Amendment prohibits government officials from discharging or threatening 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 Illinois, 497 U.S. 62, 64 (1990). “The First Amendment is not a tenure provision,
protecting public employees from actual or constructive discharge.

The First Amendment

prevents the government, except in the most compelling circumstances, from wielding its power
to interfere with its employees’ freedom to believe and associate, or to not believe and not
associate.” Rutan, 497 U.S. at 76. To resolve a patronage discharge claim at the summary
judgment stage, “the district court first determines whether the plaintiff has submitted sufficient
evidence that political affiliation or loyalty was a motivating factor in the dismissal.” Langley v.
Hot Spring County, Arkansas, 393 F.3d 814, 817 (8th Cir. 2005). “If the plaintiff meets this
burden, summary judgment must be denied unless the defendant establishes either that the
political motive is an appropriate requirement for the job, or that the dismissal was made for
mixed motives and the plaintiff would have been discharged in any event.” Id. (italics in
original).

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The crux of Mahn’s claim against Howard Wagner is that he terminated her employment,
because she did not vote for his preferred candidate in a local election. In a decision granting
Defendant Howard Wagner’s first motion for summary judgment, this Court found that
Defendant Howard Wagner established that Mahn’s dismissal was made for mixed motives and
the Mahn would have been discharged in any event. The Eighth Circuit disagreed and found that
although Defendant showed that Mahn’s dismissal may have been warranted anyway, it was not
established that Mahn’s performance would have “indisputably caused her termination.” Mahn,
891 F.3d at 1098.
Upon remand, Defendant Howard Wagner asserts qualified immunity as a defense to
Mahn’s patronage discharge claim. “The doctrine of qualified immunity protects government
officials from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). “Qualified immunity balances two important interests-the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Id. at 231. “A
state official will be shielded by qualified immunity if (1) the plaintiff fails to allege or show that
the official’s conduct violated a constitutional right or (2) the constitutional right was not
“clearly established’ at the time of the official’s alleged misconduct.” Duffie v. City of Lincoln,
834 F.3d 877, 882 (8th Cir. 2016). It is within the Court’s discretion to select which inquiry to
address first. Pearson, 555 U.S. at 236. “When summary judgment is sought on a qualified
immunity defense, the court inquires whether the party opposing the motion has raised any
triable issue barring summary adjudication.”

Ortiz v. Jordan, 562 U.S. 180, 184 (2011).

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“Qualified immunity protects all but the plainly incompetent or those who knowingly violate the
law.” Bernini v. City of St. Paul, 665 F.3d 997, 1005 (8th Cir. 2012) (citing Ashcroft v. al-Kidd,
563 U.S. 731, 743 (2011)). “At the summary judgment stage, granting qualified immunity is not
appropriate where … a dispute remains regarding facts material to the qualified immunity issue.”
Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1212 (8th Cir. 2013).
“The Supreme Court has developed two lines of cases that assess how to balance First
Amendment rights of government employees with the need of government employers to operate
efficiently.” Thompson v. Shock, 852 F.3d 786, 791 (8th Cir. 2017) (citing Hinshaw v. Smith,
436 F.3d 997, 1005-06) (8th Cir. 2006)). “For ‘overt expressive conduct,’ federal courts apply
the balancing test as found in the line of cases following Pickering and Connick. 2” Shock, 852
F.3d at 791 (citing Hinshaw, 436 F.3d at 1005). “The typical Pickering–Connick case involves a
government employee causing workplace disruption by speaking as a citizen on a matter of
public concern, followed by government action adversely affecting the employee’s job.” Shock,
852 F.3d at 791.
For pure patronage dismissals, federal courts apply the narrow-justification test outlined
in Elrod v. Burns, 427 U.S. 347 (1976) and Branti v. Finkel, 445 U.S. 507 (1980). “The typical
Elrod-Branti case involves the dismissal of an employee because of his or her political
affiliations or support for certain candidates. Shock, 852 F.3d at 791 (citing DePriest v. Milligan,
823 F.3d 1179, 1184) (8th Cir. 2016)). “A dismissal based solely on account of an employee’s
political affiliations violates the First Amendment unless the hiring authority can demonstrate
that party affiliation is an appropriate requirement for the effective performance of the public
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In Pickering v. Board of Educ. Township High Sch. Dist. 205, the Supreme Court held that “absent proof of false
statements knowingly or recklessly made by him, a teachers’ exercise of his right to speak on matters of public
concern may not furnish the basis for his dismissal from public employment.” 391 U.S. 563, 574-75 (1968). In
Connick v. Myers, the Supreme Court held that if a public employee does not speak as a citizen, or does not address
a matter of public concern, a federal court is not the appropriate forum in which to review the wisdom of a personnel
decision taken by a public agency allegedly in reaction to the employee’s behavior. 461 U.S. 138, 147 (1983).
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office involved.” Shock, 852 F.3d at 791 (quoting DePriest, 823 F.3d at 1184)). Under ElrodBranti, the court cabins its inquiry to the political-affiliation requirement itself, without the need
to do the Pickering-Connick balancing analysis. Id. at 792 (citing O’Hare Truck Serv. v. City of
Northlake, 518 U.S. 712, 719 (1996)).
Because Mahn is alleging dismissal based on her affiliation with the “wrong candidate,”
the Court will apply the Elrod-Branti test in evaluating whether Howard Wagner is entitled to
qualified immunity regarding Mahn’s patronage discharge claim. See Shock, 852 F.3d at 793
(when the constitutional right involves, joining, working for, or contributing to the political party
and candidates of the employee’s choice, the Court applies the Elrod-Branti test). Based on the
summary judgment record before the Court, the undersigned finds that Howard Wagner’s claim
for qualified immunity must be denied. It was clearly established, at the time of Mahn’s
dismissal, that a government employer cannot dismiss a government employee from her nonpolicymaking, non-confidential position because she did not vote for her employer’s preferred
political candidate. See Elrod, 427 U.S. at 373 (patronage dismissals are unconstitutional under
the First and Fourteenth Amendments to the United States Constitution); Branti, 445 U.S. at 518
(the issue is whether the hiring authority can demonstrate that party affiliation is an appropriate
requirement for the effective performance of the public office involved). Viewing the facts in
the light most favorable to Mahn, the Court cannot grant summary judgment on the qualified
immunity issue if the facts are as Mahn has alleged them. Defendant Howard Wagner focuses
on the evidence of Mahn’s poor work performance. There is no dispute that the record contains
negative performance reviews and many documented complaints about Mahn’s work product.
The issue for qualified immunity purposes is whether Howard Wagner should have known that
he could not fire an employee for failing to vote for his preferred candidate. The Supreme Court

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decided this issue over thirty years ago. Further, the parties have a genuine factual dispute
regarding the reasons for Mahn’s dismissal. This factual dispute cannot be resolved with dueling
affidavits and depositions on summary judgment.
The Eighth Circuit ruled in its order remanding this action that there is a dispute of
genuine material fact regarding whether Howard Wagner terminated Mahn for voting in the
Republican primary and whether he would have terminated Mahn anyway based on her poor
work performance. Mahn, 891 F.3d 1093, 1098. Therefore, this Court cannot now find that
Mahn’s poor work performance establishes that she would have been discharged regardless of
whether she voted for Jeannette McKee. The law of the case doctrine “requires courts to adhere
to decisions made in earlier proceedings in order to ensure uniformity of decisions, protect the
expectations of the parties, and promote judicial economy.” Gander Mountain Co. v. Cabela’s
Inc., 540 F.3d 827, 830 (8th Cir. 2008). “[T]he doctrine posits that when a court decides upon a
rule of law, that decision should continue to govern the same issues in subsequent stages in the
same case. The doctrine applies to decisions made by appellate courts and final decisions made
by district courts that have not been appealed.” Id. For the foregoing reasons, the Court will
deny Defendant Howard Wagner’s motion for summary judgment.
Finally, due to the scheduling conflicts on the Court’s docket, the trial in this matter will
be reset to March 4, 2019.
Accordingly,
IT IS HEREBY ORDERED that Defendant Howard Wagner’s motion for summary
judgment is DENIED. [Doc. 130.]

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IT IS FURTHER ORDERED that the trial of this action originally set for January 14,
2018 is RESET to Monday, March 4, 2019 at 9:00 a.m. A final pre-trial conference is set for
Thursday, February 28, 2019 at 11:00 a.m.
IT IS FURTHER ORDERED that the parties’ pretrial materials must be filed no later
than February 11, 2019 and all motions in limine must be filed no later than February 20,
2019. All other provisions of the Amended Case Management Order of August 15, 2018 remain
in full force and effect.
Dated this 18th day of December, 2018.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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