Barcus et al v. Austin et al

Filing 184

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART THE DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT DKT. NOS. [145, 147 AND DENYING AS MOOT THE DEFENDANTS MOTION TO STRIKE DKT. NO. 157 . Signed by Senior Judge Irene M. Keeley on 4/16/20. (mh)

Case 1:17-cv-00122-IMK-MJA Document 184 Filed 04/16/20 Page 1 of 25 PageID #: 1585

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JOSEPH C. BARCUS;
JAMES D. SHACKLEFORD; and
PETER J. SHIPP,
formerly known as Peter L. Shipp;
Plaintiffs,
v.

CIVIL ACTION NO. 1:17CV122
(Judge Keeley)

TERRY AUSTIN,
Sheriff, in his personal capacity,
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART THE DEFENDANT’S
MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]
After he was elected Sheriff of Taylor County, West Virginia,
in November 2016, the defendant, Terry Austin (“Austin”), fired the
plaintiffs, Joseph C. Barcus (“Barcus”), James D. Shackleford
(“Shackleford”), and Peter J. Shipp (“Shipp”) (collectively, “the
Plaintiffs”), from their jobs in the Sheriff’s Office. Barcus,
Shackleford, and Shipp sued Austin, alleging they were fired in
violation of their constitutional rights because of their support
for then-Taylor County Sheriff Terring Skinner during his reelection campaign.
Pending are Austin’s motions for summary judgment against all
the Plaintiffs (Dkt. Nos. 145, 147), and his motion to strike the

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BARCUS, ET AL. V. AUSTIN

1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART THE DEFENDANT’S
MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]
Plaintiffs’ letter of supplemental authority (Dkt. No. 157).1 For
the reasons that follow, the Court GRANTS IN PART AND DENIES IN
PART the motions for summary judgment and DENIES AS MOOT the motion
to strike.
I. BACKGROUND
A.

The Facts
The Court recites the facts in the light most favorable to the

non-moving parties. See Providence Square Assocs., LLC v. G.D.F.,
Inc., 211 F.3d 846, 850 (4th Cir. 2000). In mid-2015, Shipp, a
maintenance worker for the Taylor County Commission, accepted an
offer from Sheriff Skinner to become his secretary (Dkt. No. 145-3
at 12). As Skinner’s secretary, Shipp performed basic secretarial
or administrative duties for the Sheriff: He answered phones, took
messages, issued permits and incident reports, made copies, and
greeted members of the public (Dkt. Nos. 150 at 1, 145-3 at 12). In
early 2016, Skinner also hired Barcus and Shackleford to work as
security officers in the Taylor County Courthouse (Dkt. Nos. 145-2
at 7, 145-9 at 12).
Later in 2016, Skinner, a Democrat, sought re-election as the

1

All docket and page numbers refer to the numbers assigned by the
Court’s electronic docket.
2

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BARCUS, ET AL. V. AUSTIN

1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART THE DEFENDANT’S
MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]
Taylor County Sheriff. Austin, a Republican, opposed him. In the
run up to the November election, Barcus, Shackleford, and Shipp
supported Skinner’s re-election effort in various ways (Dkt. No.
145-2 at 4-5). They erected campaign signs, campaigned door-todoor, and displayed signs on their vehicles and in their yards
(Dkt. Nos. 145-2 at 5, 145-3 at 10-11, 145-9 at 12). Despite their
efforts, Austin defeated Skinner. Then, after the election but
before he assumed the office of Sheriff in January 2017, Austin
fired Barcus, Shackleford, and Shipp (Dkt. Nos. 145-4, 145-5, 1474).
B.

Procedural History
In June 2017, the Plaintiffs sued Austin and the Taylor County

Commission in the Circuit Court of Taylor County, West Virginia,
alleging violations of the First and Fourteenth Amendments to the
United States Constitution and Sections 7, 10, and 11 of Article
III of the West Virginia Constitution (Dkt. No. 1-1). Following
removal of the case in July 2017 (Dkt. No. 1), this Court dismissed
all claims against Austin in his official capacity, and also
dismissed the Taylor County Commission (Dkt. No. 73). Discovery has
concluded and trial is scheduled to commence on July 27, 2020 (Dkt.
Nos. 109, 182).
3

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BARCUS, ET AL. V. AUSTIN

1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART THE DEFENDANT’S
MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]
II. STANDARD OF REVIEW
Summary

judgment

is

appropriate

only

“if

the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(c). When ruling
on a motion for summary judgment, the Court reviews all the
evidence “in the light most favorable” to the nonmoving party.
Providence Square, 211 F.3d at 850. The Court must avoid weighing
the evidence or determining its truth and limit its inquiry solely
to a determination of whether genuine issues of triable fact exist.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of informing the
Court

of

the

basis

for

the

motion

and

of

establishing

the

nonexistence of genuine issues of fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party has made the
necessary showing, the non-moving party “must set forth specific
facts showing that there is a genuine issue for trial.” Anderson,
477 U.S. at 256. The “mere existence of a scintilla of evidence”
favoring the non-moving party will not prevent the entry of summary
judgment; the evidence must be such that a rational trier of fact
4

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BARCUS, ET AL. V. AUSTIN

1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART THE DEFENDANT’S
MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]
could reasonably find for the nonmoving party. Id. at 248–52.
III. DISCUSSION
A.

Austin’s Motion for Summary Judgment on Barcus & Shackleford’s
Claims
1.

First & Fourteenth Amendment Claims Under the United
States Constitution

In order to resolve Austin’s motion for summary judgment on
Barcus and Shackleford’s First Amendment claim (Dkt. Nos. 145,
146), the Court must first identify the dispute at the heart of
this case. The parties do not contest what Barcus and Shackleford’s
responsibilities were as courthouse security officers. Id. Nor does
Austin contend that these positions were subject to patronage
dismissals or that their right to be free from patronage dismissals
was not clearly established at the time he fired them. Id. What
Austin

does

contend

is

that

Barcus

and

Shackleford

cannot

demonstrate that their political association with Skinner was a
substantial or motivating factor for their terminations (Dkt. No.
146 at 10-13). He also contends that they cannot rebut proof that
he

would

have

terminated

them

anyway,

regardless

of

their

association with Skinner, in order to save the county substantial
tax dollars. Id. at 13. Therefore, at bottom, Austin challenges
only Barcus and Shackleford’s ability to establish causation. Id.
5

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BARCUS, ET AL. V. AUSTIN

1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART THE DEFENDANT’S
MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]
at 8-13.
In the Fourth Circuit, courts employ the same causation
analysis for free association and speech claims under the First
Amendment. Bland v. Roberts, 730 F.3d 368, 375 (4th Cir. 2013).
“The plaintiff bears the initial burden of proving that his
exercise of his First Amendment rights was a substantial or
motivating factor in the employer’s decision to terminate him.” Id.
(cleaned up) (citations omitted). “And if the plaintiff satisfies
that

burden,

the

defendant

will

avoid

liability

if

he

can

demonstrate, by a preponderance of the evidence, that he would have
made the same employment decision absent the protected expression.”
Id. (citations omitted).
Here, Austin asserts he had no knowledge that Barcus and
Shackleford had supported Skinner for Sheriff, nor did he terminate
every employee who supported Skinner (Dkt. No. 146 at 11). He
contends that Barcus and Shackleford have no evidence he fired them
because they supported Skinner. Id. This argument is without merit
for several reasons.
First, Barcus and Shackleford need not proffer direct evidence
that Austin knew about their political association with Skinner in
order to succeed on their First Amendment claim. See, e.g., Craig
6

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BARCUS, ET AL. V. AUSTIN

1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART THE DEFENDANT’S
MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]
v. Bedford Cty., No. 6:17-CV-00028, 2018 WL 3130439, at *7-8 (W.D.
Va. June 26, 2018) (noting that, in the absence of direct evidence,
a jury could still reasonably rely on circumstantial evidence to
conclude that three of the defendants terminated the plaintiff
because of his political activity). It is sufficient if they have
“set forth specific facts showing that there is a genuine issue for
trial.” Anderson, 477 U.S. at 256. This they have clearly done.
First, Barcus and Shackleford openly supported Skinner’s reelection effort by erecting campaign signs, campaigning door-todoor, and displaying signs on their vehicles and in their yards
(Dkt. Nos. 145-2 at 5, 145-9 at 12). And after Austin won the
November 2016 election, but even before he assumed that office in
January

2017,

he

fired

Barcus

and

Shackleford

as

courthouse

security officers (Dkt. Nos. 145-4, 145-5). When viewed in the
light most favorable to Barcus and Shackleford, these facts could
persuade a rational trier of fact that Barcus and Shackleford’s
political association with Skinner was a substantial or motivating
factor in their terminations. Anderson, 477 U.S. at 248. The fact
that Austin did not terminate every employee who supported Skinner
does not compel a contrary conclusion.
Furthermore, Barcus and Shackleford have sufficiently rebutted
7

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BARCUS, ET AL. V. AUSTIN

1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART THE DEFENDANT’S
MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]
Austin’s claim that he would have fired them regardless of their
political association with Skinner in order to save substantial tax
dollars so as to create a genuine dispute of material fact for
trial. Austin attempts to avoid this conclusion by asserting that
his

elimination

of

unnecessary

courthouse

security

officers

decreased the county’s salary expenses by thousands of dollars each
month (Dkt. No. 146 at 11), and contends he did so in response to
numerous complaints from the community (Dkt. No. 145-1 at 9, 1213).
Barcus and Shackleford, however, note that——according to
Austin’s

own

testimony——these

complaints

came

only

from

his

brother, Marvin Austin, and one of his campaign workers, Darla
Sevier (Dkt. Nos. 149 at 2; 145-1 at 12-13, 21). In other words,
the complainants were persons closely connected to Austin, not
members of the community at large. Moreover, during his deposition,
Austin denied that these complaints had anything to do with his
decision to fire Barcus and Shackleford (Dkt. No. 145-1 at 13).
Barcus and Shackleford further refute Austin’s claim that his
actions saved tax dollars by explaining that, after Austin fired
them, he re-tasked various employees to perform their work (Dkt.
No. 149 at 3). They contend that the salaries for these re-tasked
8

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BARCUS, ET AL. V. AUSTIN

1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART THE DEFENDANT’S
MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]
employees

were

not

reallocated

to

the

“security

budget,”

effectively understating the amount of money Austin actually spent
on courthouse security after he fired them. Id. To support this
contention, they generated a spreadsheet summarizing the payroll
records by pay period under Austin and compared this data to
comparable spending under Skinner (Dkt. No. 149-2).
According to this summary, Skinner spent approximately $2,790
per

pay

period

on

courthouse

security

while

Austin

spent

approximately $2,580 per pay period on courthouse security. Id. at
1.

Significantly,

Austin’s

courthouse

security

expenditures

eventually increased to approximately $3,460 per pay period, id.,
thereby belying any claim that his firing of Barcus and Shackleford
saved substantial tax dollars. Although Austin challenges the
accuracy and reliability of these exhibits (Dkt. No. 151 at 2-3),
it is not this Court’s role to weigh and resolve conflicting
evidence on summary judgment. Anderson, 477 U.S. at 249 (“[T]he
judge’s function is not himself to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine
issue for trial.”).
2.

Claims Under Sections 7, 10, and 11 of Article III of the
West Virginia Constitution

Austin also contends that he is entitled to summary judgment
9

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BARCUS, ET AL. V. AUSTIN

1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART THE DEFENDANT’S
MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]
on Barcus and Shackleford’s state law claims under Sections 7, 10,
and 11 of Article III of the West Virginia Constitution (Dkt. No.
146 at 13-20). Before considering these claims, the Court first
addresses whether Barcus and Shackleford have stated a plausible
Section 16 claim.
I.
In

their

Section 16 Claim
response

opposing

Austin’s

motion

for

summary

judgment, Barcus and Shackleford “invoke” Sections 7, 11, and 162
of Article III of the West Virginia Constitution (Dkt. No. 149 at
8). Their Complaint, however, alleges only violations of Sections
7, 10, and 11, not Section 16 (Dkt. No. 1-1 at 4). Whether or not
facts exist that may support a Section 16 claim, “[a] plaintiff may
not

amend

his

complaint

through

arguments

in

his

brief

in

opposition to a motion for summary judgment.” Shanahan v. City of
Chicago, 82 F.3d 776, 780 (7th Cir. 1996); see also Cumpston v.
Cent. Supply Co. of W. Va., No. 1:17CV61, 2018 WL 4855216, at *7
(N.D. W. Va. Oct. 5, 2018) (“[T]he Court will not allow [the
plaintiff] to amend his complaint at this late stage to avoid

2

Article 16 states: “The right of the people to assemble in a
peaceable manner, to consult for the common good, to instruct their
representatives, or to apply for redress of grievances, shall be
held inviolate.” W. Va. Const. art. III, § 16.
10

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BARCUS, ET AL. V. AUSTIN

1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART THE DEFENDANT’S
MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]
summary judgment, especially when those facts where available to
him at the outset.”). The Court, therefore, declines to find a
plausible Section 16 claim in this case.
ii.

Section 11 Claim

Section 11 of Article III of the West Virginia Constitution
states:
Political tests, requiring persons, as a
prerequisite to the enjoyment of their civil
and political rights, to purge themselves by
their own oaths, of past alleged offences, are
repugnant
to
the
principles
of
free
government, and are cruel and oppressive. No
religious or political test oath shall be
required as a prerequisite or qualification to
vote, serve as a juror, sue, plead, appeal, or
pursue any profession or employment. Nor shall
any person be deprived by law, of any right,
or privilege, because of any act done prior to
the passage of such law.
W. Va. Const. art. III, § 11. As the United States District Court
for the Southern District of West Virginia has recently noted,
“Section

11

precedent

is

sparse,

for

explicit

political

and

religious tests are rare.” Billiter v. Jones, No. 3:19-0288, 2020
WL 118595, at *4 (S.D. W. Va. Jan. 9, 2020) (Chambers, J.). One
such example is “an 1866 law requiring attorneys to swear they had
not taken up arms against the United States or otherwise supported
the Confederacy during the Civil War.” Id. (citing Haddad v. Caryl,
11

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BARCUS, ET AL. V. AUSTIN

1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART THE DEFENDANT’S
MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]
390 S.E.2d 210, 214 n.2 (W. Va. 1990) (citing Ex parte Hunter, 2 W.
Va. 122 (1867))).
Here, Barcus and Shackleford argue that Austin’s decision to
fire them for supporting his political opponent, a Democrat,
“evinces a political test of Republican affiliation . . . .” Id.
Their Complaint, however, does not allege that Austin required an
explicit or formal political oath from them or any other employee
of the Sheriff’s Office (Dkt. No. 1-1). Nor is there any such
evidence in the case.
To avoid summary judgment, Barcus and Shackleford merely quote
Section 11’s text in a footnote and claim, without citation to any
law or fact, that “Austin violated that scripture in this case”
(Dkt. No. 149 at 11 n.3). But this bold assertion falls woefully
short of “set[ting] forth specific facts showing that there is a
genuine issue for trial.” Anderson, 477 U.S. at 256.
Critically, Section 11’s history and text, and case law
discussing Section 11, “indicate [that it] is directed at formal,
overt

tests

established

in

statutes,

regulations,

oath

requirements, and the like. Claims of unlawful decision-making by
an individual based on political belief and affiliation belong
under [S]ections 7 and 16.” Billiter, 2020 WL 118595, at *4
12

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BARCUS, ET AL. V. AUSTIN

1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART THE DEFENDANT’S
MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]
(granting motion to dismiss Section 11 claim). In other words,
because Barcus and Shackleford allege biased decision-making by
Austin, and not a formal test, their Section 11 claim fails on its
merits.3
iii. Section 10 Claim
Barcus and Shackleford’s Section 10 claim fares no better.
Section 10 states that “[n]o person shall be deprived of life,
liberty, or property, without due process of law, and the judgment
of his peers.” W. Va. Const. art. III, § 10. This section “requires
procedural safeguards against State action which affects a liberty
or property interest.” W. Va. Bd. of Educ. v. Marple, 783 S.E.2d
75, 85 (W. Va. 2015) (citation omitted). Under West Virginia law,
courts must employ a “two-step inquiry to determine whether a state
employer infringed on its employee’s liberty or property interest:
(1) did the employee have a liberty or property interest at stake;
and (2) if so, how much process is he/she entitled under [the] Due
Process Clause”? Id. (citation omitted).

3

Because Barcus and Shackleford’s Section 11 claim fails on its
merits, the Court need not address whether there is a state tort
claim under Article III of the West Virginia Constitution for money
damages.
13

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BARCUS, ET AL. V. AUSTIN

1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART THE DEFENDANT’S
MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]
a.

Property Interest

It is well settled under federal and state constitutional law
“that government employment can be a property interest, but the
employee ‘must have more than a unilateral expectation of it.’”
Billiter, 2020 WL 118595, at *3 (quoting “Bd. of Regents v. Roth,
408 U.S. 564, 577 (1972)); see also Kessel v. Monongalia Cty. Gen.
Hosp. Co., 600 S.E.2d 321, 327-28 (W. Va. 2004) (holding that a
property interest “must be more than a unilateral expectation of
continued employment”). Indeed, “a person must possess a legitimate
claim of entitlement to it——created, for example, by contract or
state law.” Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d
292, 307 n.14 (4th Cir. 2006) (citing Roth, 408 U.S. at 577-78).
Here, Barcus and Shackleford’s Complaint does not allege a
property

interest

in

their

employment

as

courthouse

security

officers (Dkt. No. 1-1). Nor does it allege any “contracts,
statutory provisions, or implied promises from which the Court
could infer [their] employment was something other that at-will,”
Billiter, 2020 WL 118595, at *3, which is presumed under West
Virginia law, Younker v. E. Associated Coal Corp., 591 S.E.2d 254,
257 (W. Va. 2003). Tellingly, Barcus and Shackleford never discuss
Section 10 in their response opposing summary judgment (Dkt. No.
14

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1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART THE DEFENDANT’S
MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]
149).
Even assuming they have not conceded the issue, “[a] local
government employee serving ‘at the will and pleasure’ of the
government employer has no legitimate expectancy of continued
employment and thus has no protectible property interest.” Jenkins
v. Weatherholz, 909 F.2d 105, 107 (4th Cir. 1990). Accordingly,
Barcus and Shackleford’s property interest claim under Section 10
cannot withstand summary judgment.
b.

Liberty Interest

“A liberty interest is implicated when the state makes a
charge against the individual that might seriously damage his
standing and associations in the community or places a stigma or
other

disability

on

him

that

forecloses

future

employment

opportunities.” McGraw, 800 S.E.2d at 237 (citation omitted). Under
West Virginia law, “a government employer implicates its employee’s
liberty interest in his/her good name when the following elements
are alleged: (1) a stigmatizing statement; (2) which was false; (3)
was published, or made accessible to the public; (4) in connection
with a serious adverse employment action.” Id. at 239. “When these
elements

are

met,

the

employee

must

be

afforded

procedural

safeguards under Article III, Section 10 of the West Virginia
15

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BARCUS, ET AL. V. AUSTIN

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MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART THE DEFENDANT’S
MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]
Constitution.” Id.
Here, Barcus and Shackleford’s Complaint never alleges how
Austin’s actions implicated their liberty interest (Dkt. No. 1-1),
much less any of the four elements required by McGraw. Id. Nor do
Barcus

and

Shackleford

discuss

Section

10

in

their

response

opposing summary judgment (Dkt. No. 149). Therefore, having failed
even to allege the requisite elements of a liberty interest claim,
Barcus and Shackleford’s claim under Section 10 is not plausible.
iv.

Section 7 Claim

Section 7 states:
No law abridging the freedom of speech, or of
the
press,
shall
be
passed;
but
the
Legislature may, by suitable penalties,
restrain the publication or sale of obscene
books, papers, or pictures, and provide for
the punishment of libel, and defamation of
character, and for the recovery, in civil
actions, by the aggrieved party, of suitable
damages for such libel, or defamation.
W. Va. Const. art. III, § 7.
Here, Austin concedes that the protections set forth in
Section 7 are coextensive with those of the First Amendment (Dkt.
No. 146). Indeed, as the Supreme Court of Appeals of West Virginia
has

explained,

the

First

Amendment

and

Section

7

“extend

a

protection to governmental employees to be free from employment
16

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BARCUS, ET AL. V. AUSTIN

1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART THE DEFENDANT’S
MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]
decisions made solely for political reasons.” Adkins v. Miller, 421
S.E.2d 682, 683 (W. Va. 1992). Having already concluded that there
are genuine issues of material fact in dispute that preclude
summary judgment as to Barcus and Shackleford’s First Amendment
claim, the Court denies as well Austin’s motion for summary
judgment on their Section 7 claim.
B.

Austin’s Motion for Summary Judgment on Shipp’s Claims
1.

First & Fourteenth Amendment Claims Under the United
States Constitution

Austin contends that Shipp’s First Amendment claim cannot
proceed

because

his

termination

was

an

employment

decision

permitted under the Elrod-Branti exception to the general rule
protecting public employees from being fired for their political
associations (Dkt. Nos. 147, 148).4 And even if Shipp’s termination
was

not

permissible,

Austin

asserts

that

he

is

entitled

to

qualified immunity because Shipp’s First Amendment right not to be
terminated for his political association with Skinner was not
clearly established at the time of his termination. Id. Both claims
are wholly lacking in merit.

4

Because neither party has invoked the Pickering-Connick doctrine,
the Court need not address it. See Lawson v. Union Cty. Clerk of
Court, 828 F.3d 239, 251-53 (4th Cir. 2016).
17

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MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART THE DEFENDANT’S
MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]
Generally, the freedom to associate under the First Amendment
“prohibits government officials from terminating public employees
solely for supporting political opponents.” McCaffrey v. Chapman,
921 F.3d 159, 164 (4th Cir. 2019). The Supreme Court of the United
States has, however, created an exception to this general rule in
Elrod v. Burns, 427 U.S. 347 (1976), which it later clarified in
Branti v. Finkel, 445 U.S. 507 (1980).
In Elrod, a plurality of the Supreme Court explained that
government officials may lawfully terminate a public employee for
his or her political association if he or she holds a policymaking
position. 427 U.S. at 367. In Branti, the Supreme Court clarified
that “the ultimate inquiry is . . . whether the hiring authority
can

demonstrate

that

party

affiliation

is

an

appropriate

requirement for the effective performance of the public office
involved.” 445 U.S. at 518. It reasoned that “if an employee’s
private political beliefs would interfere with the discharge of his
public duties, his First Amendment rights may be required to yield
to

the

State’s

vital

interest

in

maintaining

governmental

effectiveness and efficiency.” Id. at 517.
To determine whether political association is a legitimate job
requirement, the Fourth Circuit has established a two-step inquiry.
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MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART THE DEFENDANT’S
MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]
Courts must first determine whether the public position at issue
involves partisan interests. Stott v. Haworth, 916 F.2d 134, 141
(4th Cir. 1990) (citation omitted). In other words, “does the
position involve government decisionmaking on issues where there is
room for political disagreement on goals or their implementation?”
Id. (citation omitted). If the “first inquiry is satisfied, the
next step is to examine the particular responsibilities of the
position to determine whether it resembles . . . an office holder
whose function is such that party affiliation is an equally
appropriate requirement.” Id. at 142 (citation omitted).
This inquiry, therefore, requires the Court to review and
consider Shipp’s duties and responsibilities as Austin’s secretary
or administrative assistant. See Lawson, 828 F.3d at 248 (reviewing
“the general duties of deputies in the Union County Clerk’s Office”
to determine whether it “satisf[ies] the first prong of Stott”);
Snyder v. Blagojevich, 332 F. Supp. 2d 1132, 1136 (N.D. Ill. 2004)
(“As a threshold matter, it is essential to clarify what universe
of job responsibilities dictates whether a job is within the ElrodBranti exception.”).
Here,

the

parties

vigorously

dispute

Shipp’s

job

responsibilities. Austin contends they included discussing policies
19

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MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART THE DEFENDANT’S
MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]
or violations of policies, research, and representing the Sheriff
to other county officials (Dkt. No. 148 at 3). Shipp, however,
asserts he only performed basic secretarial and administrative
duties (Dkt. Nos. 150 at 1, 145-3 at 12). There is no written job
description for Shipp’s former position. Thus, there is a factual
dispute about what his job responsibilities included that precludes
Austin’s

claim

for

qualified

immunity

at

this

stage

of

the

litigation.5 Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003)
(“A defendant is entitled to summary judgment on the grounds of
qualified immunity when there is no genuine issue of material fact
. . . .”).
Austin further argues that, because he did not know what
Shipp’s job title and responsibilities were at the time he fired
him (Dkt. No. 148 at 10), it was reasonable for him to believe it
was

constitutional

political

to

association.

terminate
Id.

at

Shipp’s

9-10.

It

employment
is

well

based

on

established,

however, that the Elrod-Branti exception is based in part on the
nature of an employee’s responsibilities.
In Elrod, the Supreme Court concluded that the political

5

Only after a jury resolves this factual dispute will the Court be
able to determine whether Shipp’s position satisfies Stott’s twostep inquiry as a matter of law.
20

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MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART THE DEFENDANT’S
MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]
beliefs of the employees at issue (including, among others, a
process server, bailiff, and security guard), would not interfere
with the discharge of their public duties because they were
“nonpolicymaking, nonconfidential” employees. 427 U.S. at 375. In
Branti, the Supreme Court clarified that the ultimate inquiry is
“whether . . . party affiliation is an appropriate requirement for
the effective performance of the public office involved.” 455 U.S.
at 518.
Thus, it was long established prior to Austin’s election in
November 2016 that the application of the Elrod-Branti exception
turns on whether the position at issue involves room for political
disagreement, and, if so, whether the employee’s political beliefs
would interfere with the discharge of his or her public duties,
making political association an appropriate job requirement. See
Branti, 445 U.S. at 517-18; Stott, 916 F.2d at 141-42. To conclude
otherwise would enable employers to avoid liability simply by
claiming ignorance of an employee’s responsibilities. Tellingly,
Austin has cited no case granting qualified immunity to an employer
who

terminated

an

employee——without

knowledge

of

their

responsibilities——based on their political associations or speech
(Dkt. Nos. 148, 152).
21

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MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART THE DEFENDANT’S
MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]
Austin’s reliance on Billingsley v. St. Louis Cty., 70 F.3d 61
(8th Cir. 1995), to rebut this conclusion is misplaced. There, the
United States Court of Appeals for the Eighth Circuit held that an
administrative assistant to a county councilman did not have a
clearly established right to be free from patronage dismissal
because she was the “sole” intermediary between the councilman and
his constituents and “performed a broad range of duties that dealt
with sensitive issues including proposed legislation to county
development projects.” Billingsley, 70 F.3d at 64. Nevertheless,
when

determining

whether

a

constitutional

right

is

clearly

established, the Supreme Court has warned that “courts may not
resolve genuine disputes of fact in favor of the party seeking
summary judgment.” Tolan v. Cotton, 572 U.S. 650, 656 (2014)
(citations omitted).
Here,

not

responsibilities,

only
these

do

the

parties

disputed

dispute

responsibilities

Shipp’s
also

job

differ

significantly from those at issue in Billingsley. For example, as
a secretary or administrative assistant to the county’s chief law
enforcement officer, Shipp did not act as the “sole” intermediary
between Austin and his constituents because a sheriff primarily
acts through his deputies, who are subject to patronage dismissals.
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MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART THE DEFENDANT’S
MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]
See McCaffrey, 921 F.3d 159. Although the position at issue in
Billingsley

may

be

similar

in

name,

courts——and

thus

public

employers——must “examine the job duties of the position, and not
merely the title, of those dismissed.” Jenkins, 119 F.3d at 1165
(“We issue this limitation to caution sheriffs that courts examine
the job duties of the position, and not merely the title, of those
dismissed.”). In this case, where material facts are in dispute,
that determination is for the jury not the court.
2.

Claims Under Sections 7, 10, and 11 of Article III of the
West Virginia Constitution

Austin also contends that he is entitled to summary judgment
on Shipp’s state law claims under Sections 7, 10, and 11 of Article
III of the West Virginia Constitution (Dkt. No. 148 at 12-19).
I.

Section 16 Claim

Like Barcus and Shackleford, Shipp invokes Section 16 in his
response opposing summary judgment (Dkt. No. 150 at 4); also like
Barcus and Shackleford, he never alleged a Section 16 claim in his
Complaint (Dkt. No. 1-1). Therefore, Shipp cannot “amend his
complaint at this late stage to avoid summary judgment . . . .”
Cumpston, 2018 WL 4855216, at *7.
ii.

Section 11 Claim

Austin is entitled to summary judgment on Shipp’s Section 11
23

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BARCUS, ET AL. V. AUSTIN

1:17CV122

MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART THE DEFENDANT’S
MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]
claim because, like Barcus and Shackleford, Shipp never alleged
that Austin required an explicit or formal political oath (Dkt. No.
1-1). Nor is there any evidence otherwise (Dkt. No. 150).6
iii. Section 10 Claim
Austin also is entitled to summary judgment on Shipp’s Section
10 claim. As previously discussed, like Barcus and Shackleford,
Shipp never alleged a property interest in his employment as a
secretary or administrative assistant, and has not made out the
requisite elements of a liberty interest claim (Dkt. No. 1-1).
iv.

Section 7 Claim

Finally, Austin is not entitled to summary judgment on Shipp’s
Section 7 claim because the protections of Section 7 and the First
Amendment are coextensive, and the Court has previously concluded
that there is a genuine dispute of material fact on Shipp’s First
Amendment claim.
C.

Austin’s Motion to Strike
On March 9, 2020, the Plaintiffs filed a letter, which

included supplemental authority opposing Austin’s motions for
summary judgment (Dkt. No. 154). On March 17, 2020, Austin moved to
6

Because Shipp’s Section 11 claim fails on its merits, the Court
need not address whether there is a state tort claim under Article
III of the West Virginia Constitution for money damages.
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MEMORANDUM OPINION AND ORDER GRANTING
IN PART AND DENYING IN PART THE DEFENDANT’S
MOTIONS FOR SUMMARY JUDGMENT [DKT. NOS. 145, 147] AND
DENYING AS MOOT THE DEFENDANT’S MOTION TO STRIKE [DKT. NO. 157]
strike the letter because the Plaintiffs failed to obtain leave of
Court to file a surreply (Dkt. No. 157). This issue is moot because
the Court has not considered the supplemental authority.
IV. CONCLUSION
For the reasons discussed, the Court:
(1)

GRANTS IN PART AND DENIES IN PART Austin’s motion for
summary judgment on Barcus and Shackleford’s claims (Dkt.
No. 145;

(2)

GRANTS IN PART AND DENIES IN PART Austin’s motion for
summary judgment on Shipp’s claims (Dkt. No. 147); and

(3)

DENIES AS MOOT Austin’s motion to strike (Dkt. No. 157).

It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record.
DATED: April 16, 2020
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

25