Taylor v. Ohio County Commission et al

Filing 10

ORDER GRANTING IN PART DEFENDANTS' MOTION TO DISMISS AND REMANDING STATE LAW CLAIMS: Granting 3 motion to dismiss 1983 claims in Counts I & IV and Count III insofar as it claims relief under the U.S. Constitution; and Remanding the remaining state law claims to the Circuit Court of Ohio Co., WV. ; and DISMISSING CASE Signed by District Judge John Preston Bailey on 11/28/17. (soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
WHEELING
KATRINA ANNE TAYLOR,
Plaintiff,
v.

CIVIL ACTION NO. 5:17-CV-148
(BAILEY)

OHIO COUNTY COMMISSION,
TIFFANY HOFFMAN, and
MICHELLE POWELL,
Defendants.
ORDER GRANTING IN PART DEFENDANTS’ MOTION TO DISMISS AND
REMANDING STATE LAW CLAIMS
On this day, the above-styled action came before this Court for consideration of the
defendants’ Motion to Dismiss [Doc. 3], filed October 4, 2017. Having been fully briefed,
this matter is now ripe for decision. For the reasons stated herein, this Court GRANTS IN
PART the defendants’ Motion to Dismiss [Doc. 3], DISMISSES the claims allegedly arising
under the United States Constitution, and REMANDS the state law claims to the Circuit
Court of Ohio County, West Virginia.
BACKGROUND
Plaintiff, Katrina Anne Taylor, filed her Complaint in the Circuit Court of Ohio County,
West Virginia, on September 5, 2017 [Doc. 1-9]. This matter arises from plaintiff’s
contention that defendants created a hostile work environment and ultimately fired plaintiff
from her job at the Ohio County Assessor’s Office in retaliation for plaintiff running for the
position of Ohio County Assessor.
Specifically, plaintiff asserts that “[o]n or about July 11, 2016, the previous assessor
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passed away unexpectedly, and Defendant, Michelle Powell, was appointed as assessor
on a temporary basis until the election was completed” [Id. at ¶ 9]. Plaintiff then ran against
defendant, Tiffany Hoffman, for the office of Ohio County Assessor during the November
2016 election [Id. at ¶ 10].
Plaintiff claims that around August 2016, after Ms. Powell and Ms. Hoffman learned
plaintiff was running for Assessor:
Plaintiff began suffering a hostile work environment created largely by
Defendant Powell, and contributed to by Defendant Hoffman once she took
office. Said hostile work environment included b[ut] was not limited to,
withholding important paperwork from Plaintiff which was needed to complete
her job duties, refraining from turning in specific documents to create an
illusion that Plaintiff was not sufficiently fulfilling her job requirements, and
excluding her from the decision making process within the real estate office
which had always been a part of her job description previously.
Further, upon information and belief, Plaintiff earned compensatory time by
working overtime and said time was taken away upon Defendant Hoffman
taking office, additionally Plaintiff was removed from the employee rotation
for leaving early.
[Id. at ¶¶ 11-12]. Plaintiff further contends that in January 2017 she was “written up for the
first time in her ten (10) years with the Ohio County Assessor’s Office, for no[t] maintaining
her job performance and for complaints from taxpayers” [Id. at ¶ 13]. However, plaintiff
claims she “was not provided information regarding the specific areas of her job that had
been lacking nor was she provided the nature of said complaints or documentation
regarding the same” [Id.].
After being “written up,” plaintiff claims she “was placed on probation but was not
given a timeline [sic] or terms of said probation and no re-evaluation was done to determine
when/if the probation period would conclude” [Id. at ¶ 14]. Plaintiff claims she requested,
but was never provided with, “documentation to support . . . the reasoning for the
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disciplinary action taken against her” [Id. at ¶¶ 15-16].
Ultimately, plaintiff claims that on or about March 17, 2017, she met with defendant,
Tiffany Hoffman, and in said meeting plaintiff was informed “that her employment was being
terminated as they felt that due to her ‘mistakes’ it would cost more in the long run to keep
her employed” [Id. at ¶ 19]. Plaintiff again claims she “requested documentation but was
still not provided an explanation of what mistakes had been made nor was she provided
with documentation related to the same” [Id. at ¶ 20].
Accordingly, the Complaint alleges five counts against all defendants, which include
(I) “Violation of First Amendment Rights of Freedom of Speech and Freedom of Association
Brought Pursuant to 42 U.S.C. § 1983,” (II) “Violation of Rights of Freedoms of Speech,
Association and Candidacy Protected by Article III, § 7 and § 16 and Article IV, § 1 and §
4 of the West Virginia Constitution,” (III) “Violation of Fourteenth Amendment Rights
Protected by the Fourteenth Amendment to the United States Constitution by 42 U.S.C. §
1983, And [sic] by Article III, § 10 of the West Virginia Constitution,” (IV) “Violation of First
Amendment Rights by Engaging in Political Patronage under 42 U.S.C. § 1983,” and (V)
“Tort of Outrage” [Id. at ¶¶ 21-45]. Specifically, Count I alleges the defendants created a
hostile work environment “to intimidate Plaintiff to withdraw from the campaign” and that
plaintiff was “terminated for political reasons in retaliation of [sic] Plaintiff’s exercising her
First Amendment rights to free speech and free association in seeking public office” [Id. at
¶¶ 23-24]. Count II essentially alleges the same, yet states grounds for relief arising under
the West Virginia Constitution [Id. at ¶¶ 25-31]. Count III alleges defendants’ actions
“sought to deprive Plaintiff Taylor of her rights to due process and equal protection of the
law secured by the Fourteenth Amendment to the United States Constitution . . . [and] the
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West Virginia Constitution” [Id. at ¶ 36]. Count IV alleges defendants “violated Plaintiff
Taylor’s First Amendment rights by engaging in political patronage in retaliation for Plaintiff
Taylor seeking the office of Ohio County Assessor” and that plaintiff was fired “for solely
political reasons” [Id. at ¶¶ 37-41]. Finally, Count V alleges “[t]he wrongful employment
acts and/or omissions taken against Plaintiff Taylor were done in an outrageous manner
and were so extreme as to be intolerable in a civilized society.

Defendants acted

intentionally or with reckless indifference that said actions were likely to cause extreme
emotional distress” [Id. at ¶¶ 43-44].
The action was removed to the United States District Court for the Northern District
of West Virginia based on federal question jurisdiction on September 28, 2017 [Doc. 1].
Defendants filed the instant Motion to Dismiss on October 4, 2017 [Doc. 3]. The Motion
contends the following:
1. Plaintiff’s First Amendment claim does not meet the requirements of
Twombly and Iqbal, and must therefore be dismissed for failure to state a
claim upon which relief can be granted;
2. Plaintiff does not have a clear First Amendment right to candidacy;
3. Plaintiff pleads no facts whatsoever that indicate her “speech” was a
“substantial factor” in her dismissal;
4. Plaintiff has no liberty or property right to her employment, and none of
Plaintiff’s due process rights were violated;
5. Defendants have qualified immunity from Plaintiff’s claims;
6. Plaintiff does not properly plead a claim supporting a § 1983 allegation
against the Ohio County Commission, and all claims against Ohio County
Commission must be dismissed;
7. Plaintiff’s claims of “outrage” do not meet the pleading standard set forth
in Iqbal and Twombly, and do not meet the standard necessary to continue
with the claim.
[Id. at 2-3].

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LEGAL STANDARD
In reviewing the sufficiency of a complaint under Federal Rule of Civil Procedure
12(b)(6), a district court must accept the factual allegations in the complaint as true. Zak
v. Chelsea, 780 F.3d 597, 601 (4th Cir. 2015) (citing Matrix Capital Mgmt. Fund, LP v.
Bearing Point, Inc., 576 F.3d 172, 176 (4th Cir. 2009)). While a complaint does not need
detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement
to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Indeed, courts “are not bound to accept as true a legal conclusion couched as a
factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
A complaint must be dismissed if it does not allege “enough facts to state a claim
to relief that is plausible on its face.” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.
2008) (quoting Twombly, 550 U.S. at 547) (emphasis added).

“A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). This requires “more than a sheer possibility that a
defendant has acted unlawfully.” Id. However, when reviewing the sufficiency of a
complaint, a court may also consider “documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). A court may consider documents
attached to a motion to dismiss when they are “integral to and explicitly relied on in the
complaint and . . . the plaintiffs do not challenge [their] authenticity.”

5

American

Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004).
“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;
importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.
1992). “But in the relatively rare circumstances where facts sufficient to rule on an
affirmative defense are alleged in the complaint, the defense may be reached by a motion
to dismiss filed under Rule 12(b)(6),” so long as “all facts necessary to the affirmative
defense ‘clearly appear[] on the face of the complaint.’” Goodman v. Praxair, Inc., 494
F.3d 458, 464 (4th Cir. 2007) (quoting Richmond, Fredericksburg & Potomac R.R. v.
Forst, 4 F.3d 244, 250 (4th Cir. 1993)).
DISCUSSION
A. Count I
Count I of the Complaint, brought pursuant to 42 U.S.C. § 1983, alleges defendants
created a hostile work environment “to intimidate Plaintiff to withdraw from the campaign
for the office of the Ohio County Assessor” and that plaintiff was “terminated for political
reasons in retaliation of [sic] Plaintiff’s exercising her First Amendment rights to free speech
and free association in seeking public office” [Doc. 1-9 at ¶¶ 23-24]. Section 1983 allows
for a plaintiff to assert a claim against any “person” who, acting under color of state law,
“depriv[ed] [another] of any rights, privileges, or immunities secured by the Constitution.”
42 U.S.C. § 1983. A plaintiff seeking to bring a claim under § 1983 must meet two
requirements: (1) the conduct complained of was committed by a person acting under color
of law; and (2) the conduct deprived the plaintiff of rights, privileges, or immunities secured

6

to him by the Constitution and the laws of the United States. See Wirth v. Surles, 562
F.2d 319, 321 (4th Cir. 1977) (citing Monroe v. Pape, 365 U.S. 167 (1961)).
Defendants argue, inter alia, that plaintiff’s claims under Count I must be dismissed
because qualified immunity bars the claim. “Qualified immunity protects [public officials]
from liability or, in many instances, from having to stand trial when the [official] makes a
decision that even if constitutionally deficient, ‘reasonably misapprehends the law
governing the circumstances she confronted.’” Hutchinson v. Lemmon, 436 Fed. App’x
210, 214 (4th Cir. 2011) (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)). “[A]
plaintiff may prove that an official has violated his rights, but an official is nonetheless
entitled to qualified immunity if a reasonable person in the official’s position could have
failed to appreciate that his conduct would violate those rights.” Torchinsky v. Siwinski,
942 F.2d 257, 261 (4th Cir. 1991). Qualified immunity acts to protect “all but the plainly
incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341
(1986).
As an initial matter, this Court must identify whether any statutory or constitutional
rights were violated and then ask whether those rights were clearly established at the time
of the violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009); Hunter v. Town of
Mocksville, N.C., 789 F.3d 389, 396 (4th Cir. 2015). This Court, in its discretion, may
decide “which of the two prongs of the qualified immunity analysis should be addressed first
in light of the circumstances in the particular case at hand.” M.C. ex rel. Crawford v.
Amrhein, 598 Fed. App’x 143, 146 (4th Cir. 2015) (citing Pearson, 555 U.S. at 236).
Here, it is unclear whether the mere declaration of a candidacy is protected by the

7

First Amendment, such that plaintiff’s constitutional rights were violated. Further, even
assuming the First Amendment provided such rights, this Court does not believe those
rights were clearly established at the time of the alleged violation. Accordingly, Count I of
the plaintiff’s Complaint [Doc. 1-9] must be dismissed.
Although the First Amendment generally protects the rights of individuals to engage
in political speech, in the absence of such accompanying speech, the boundaries of the
constitutional right to political candidacy itself is undetermined. While the United States
Supreme Court has considered cases involving laws that obstruct an individual’s
opportunity to run for office,1 the Supreme Court has not a heard a case, such as this one,
wherein a plaintiff alleges unconstitutional retaliation on the basis of candidacy itself. As
a result, the federal circuit courts are split as to the extent, if any, of constitutional protection
for candidacy and offer different rationales for protection afforded, or not afforded, to a
public employee who announces his or her candidacy for public office.
The Sixth and Seventh Circuits have held that an announcement of candidacy, in
and of itself, does not implicate the First Amendment. Carver v. Dennis, 104 F.3d 847,
853 (6th Cir. 1997); Newcomb v. Brennan, 558 F.2d 825, 828 (7th Cir. 1977). In these
circuits, the First Amendment will only be implicated when a candidate engages in activity
that independently constitutes speech as a public concern under Pickering v. Board of
Education, 391 U.S. 563 (1968), or political association under Elrod v. Burns, 427 U.S.
347 (1976). See Murphy v. Cockrell, 505 F.3d 446, 451 (6th Cir. 2007). In contrast, the
Eleventh Circuit has held that an announcement of candidacy alone is protected by the
1

See Clements v. Fashing, 457 U.S. 957 (1982); Bullock v. Carter, 405 U.S. 134
(1972); Williams v. Rhodes, 393 U.S. 23 (1968).
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First Amendment. See Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010). The Fifth,
Ninth, and Tenth Circuits have held that candidacy announcements are protected under
the First Amendment as a form of expression. See Jantzen v. Hawkins, 188 F.3d 1247,
1257 (10th Cir. 1999); Click v. Copeland, 970 F.2d 106, 111-12 (5th Cir. 1992);
Finkelstein v. Bergna, 924 F.2d 1449, 1453 (9th Cir. 1991).2
The Fourth Circuit has seemingly not weighed in on this issue. Plaintiff cites Gillen
v. Huggins, 1997 WL 657134 (4th Cir. Oct. 23, 1997), to support her proposition that
“[f]ederal law clearly hold[s] that Plaintiff Taylor would have a cause of action for being
wrongfully terminated due to running for political office” [Doc. 5 at 7]. However, the Gillen
plaintiffs “spoke to reporters despite [their boss’s] warning not to do so.” Gillen, 1997 WL
657134 at *2. Thus, Gillen is not helpful to plaintiff here as it involved actual speech,
wherein this case plaintiff has not alleged retaliation against any actual speech or
expression, but rather simply against her announcement of candidacy itself. In seemingly
the most recent case along these lines considered by the Fourth Circuit, the court stated
“we have never recognized a First Amendment right to hold elected office, [and] we need
not decide whether such a right exists to resolve this case.” Loftus v. Bobzien, 848 F.3d
278, 285 (4th Cir. 2017). Thus, it remains an open question in this circuit whether the First
Amendment protects a right to candidacy.
Here, plaintiff admits that she “has not plead [sic] an exact issue that she spoke
about which resulted in her termination” [Doc. 5 at 5]. Instead, plaintiff has pled that she

2

For a detailed discussion of this topic and the differing approaches of the federal
circuit courts, see Ross Staine, First Amendment Protection for Political Candidacy of
Public Employees, 66 SMU L. REV. 461 (2013).
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“was retaliated against and terminated for declaring a candidacy for public office and for
campaigning for said public office” [Id. at 5]. Therefore, it seems to this Court that nothing
in plaintiff’s Count I would independently constitute speech as a public concern under
Pickering or political association under Elrod. This is not a typical “whistle blower” case
for which a standard has been announced. See Wagner v. Wheeler, 13 F.3d 86, 90 (4th
Cir. 1993). Instead, plaintiff’s Count I alleges her constitutional rights were violated
because her declaration of candidacy is protected by the First Amendment. As discussed
above, the federal circuit courts are split on this issue, and the Fourth Circuit has not come
down on either side of the debate.
Therefore, it is not clear that plaintiff even had a right, privilege, or immunity secured
to her by the Constitution that defendants’ alleged conduct could have infringed
upon—which is the second requirement to bringing a § 1983 action. See Wirth v. Surles,
562 F.2d 319, 321 (4th Cir. 1977) (citing Monroe v. Pape, 365 U.S. 167 (1961)). Further,
even assuming the First Amendment provides protection to the announcement of
candidacy, and even further assuming defendants’ conduct violated that right, it was not
clearly established law at the time of the violation. “[I]n gray areas, where the law is
unsettled or murky, qualified immunity affords protection to an [official] who takes an action
that is not clearly forbidden—even if the action is later deemed wrongful.” Rogers v.
Pendleton, 249 F.3d 279, 286 (4th Cir. 2001) (citing Maciariello v. Summer, 973 F.2d
295, 298 (4th Cir. 1992)). Therefore, as to Count I, plaintiff has not met the requirements
for bringing a claim under § 1983. Furthermore, since the right plaintiff claims under the
First Amendment was not clearly established at the time of the violation, defendants are

10

entitled to qualified immunity.
Accordingly, Count I of the plaintiff’s Complaint [Doc. 1-9] is hereby DISMISSED as
to all defendants.
B. Count III
Count III of plaintiff’s Complaint claims:
By impeding and interfering with Plaintiff Taylor’s opportunity to run or
campaign for public office and/or retaliating against her for exercising such
rights, Defendant OCC [Ohio County Commission], Defendant Hoffman and
Defendant Powell sought to deprive Plaintiff Taylor of her rights to due
process and equal protection of the law secured by the Fourteenth
Amendment to the United States Constitution, by 42 U.S.C. § 1983, and by
Article III, § 10 of the West Virginia Constitution. Such depravation of rights
do not entitle Defendants to qualified immunity.
[Doc. 1-9 at 7]. Thus, this Court interprets Count III as alleging a claim under both the Due
Process and Equal Protection Clauses. This Court will address the due process claim first.
The United States Supreme Court discussed government employment as a property
interest in Board of Regents v. Roth, 408 U.S. 564 (1972), and defined it as follows:
To have a property interest in a benefit, a person clearly must have more
than an abstract need or desire for it. He must have more than a unilateral
expectation of it. He must, instead, have a legitimate claim of entitlement to
it. It is a purpose of the ancient institution of property to protect those claims
upon which people rely in their daily lives, reliance that must not be arbitrarily
undermined.
Id. at 577. The Supreme Court went on to explain that “[p]roperty interests, of course, are
not created by the Constitution. Rather, they are created and their dimensions are defined
by existing rules or understandings that stem from an independent source such as state
law—rules or understandings that secure benefits and that support claims of entitlement
to those benefits.” Id. Thus, Roth defined property as an “entitlement,” which exists if

11

there is a reasonable expectation to continued receipt of a benefit or, in the employment
context, an expectation of continued employment. See also Perry v. Sindermann, 408
U.S. 593 (1972).
Here, plaintiff has not put forth any contract, statute, or regulation that would
purportedly give her a property interest in her employment. This Court agrees with the
defendants that “Plaintiff has not pled a single fact that indicates she is anything other than
a will-and-pleasure employee” [Doc. 4 at 10]. Plaintiff cites West Virginia Board of
Education v. Marple, 783 S.E.2d 75, 236 W.Va. 654 (2015), and Wounaris v. West
Virginia State College, 588 S.E.2d 406, 214 W.Va. 241 (2003), for the proposition that
“West Virginia does provide a state law entitling Plaintiff Taylor to due process” [Doc. 5 at
8]. Plaintiff cites Marple for the proposition that “[p]ublic employees are entitled to be
protected from . . . adverse employment consequences resulting from the exercise of their
. . . First Amendment rights,” and Wounaris for the proposition that “West Virginia state law
also protects public employees from retaliation for speaking about matters of public
concern” [Doc. 5 at 8]. Based on this Court’s earlier discussion regarding First Amendment
rights in this context, plaintiff’s argument is unpersuasive. Thus, because plaintiff did not
have a reasonable expectation to continued employment based on any state law, and was
therefore not “entitled” to it, this Court finds she does not have any property interest in her
employment. See Bishop v. Wood, 426 U.S. 341 (1976) (city police officer who “held his
position at the will and pleasure of the city” did not have a property interest in his job, and
therefore was not entitled to due process with regard to his termination).
Further, plaintiff does not allege a deprivation of any liberty interest, nor does this

12

Court find one exists on the face of the Complaint.

While harm to reputation can

sometimes be a deprivation of liberty when actual detriment, such as loss of employment,
has occurred, “[d]ue process requires a hearing on the discharge of a government
employee ‘if the employer creates and disseminates a false and defamatory impression
about the employee in connection with his termination.’” Owen v. City of Independence,
445 U.S. 622, 661 (1980) (quoting Codd v. Velger, 429 U.S. 624 (1977)). Such creation
and dissemination of a defamatory impression is not alleged here. Thus, this Court finds
plaintiff did not suffer a deprivation of any liberty interest by defendants’ alleged actions.
Accordingly, Count III of the plaintiff’s Complaint [Doc. 1-9] is hereby DISMISSED
as to all defendants, insofar as it claims relief under the Due Process Clause of the
Fourteenth Amendment.
Turning now to plaintiff’s equal protection claim, plaintiff claims “[u]pon information
and belief other employees of Defendant OCC have been permitted by Defendant OCC to
run and/or campaign for public office without retaliation dismissals” [Doc. 1-9 at 7]. Thus,
plaintiff seemingly claims defendants arbitrarily and intentionally treated her differently from
others. When a person alleges to have suffered arbitrary and discriminatory treatment by
the Government, such claims are usually permitted under the Equal Protection Clause. In
Village of Willowbrook v. Olech, 528 U.S. 562 (2000), the United States Supreme Court
stated, “[o]ur cases have recognized successful equal protection claims brought by a ‘class
of one,’ where the plaintiff alleges that she has been intentionally treated differently from
others similarly situated and that there is no rational basis for the difference in treatment.”
Id. at 564.

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However, the Supreme Court has also held that government employees cannot bring
such “class of one” equal protection claims. In Engquist v. Oregon Department of
Agriculture, 553 U.S. 591 (2008), the Court said:
Our traditional view of the core concern of the Equal Protection Clause as a
shield against arbitrary classifications, combined with unique considerations
applicable when the government acts as employer as opposed to sovereign,
lead us to conclude that the class-of-one theory of equal protection does not
apply in the public employment context.
Id. at 598. The Court went on to explain that:
There are some forms of state action, however, which by their nature involve
discretionary decisionmaking based on a vast array of subjective,
individualized assessments. In such cases the rule that people should be
‘treated alike, under like circumstances and conditions’ is not violated when
one person is treated differently from others, because treating like individuals
differently is an accepted consequence of the discretion granted. In such
situations, allowing a challenge based on the arbitrary singling out of a
particular person would undermine the very discretion that such state officials
are entrusted to exercise.
Id. at 603, 609 (“In short, ratifying a class-of-one theory of equal protection in the context
of public employment would impermissibly ‘constitutionalize the employee grievance.’”).
Thus, plaintiff cannot bring the type of “class of one” equal protection claim she tries
to bring here. Accordingly, Count III of the plaintiff’s Complaint [Doc. 1-9] is hereby
DISMISSED as to all defendants, insofar as it claims relief under the Equal Protection
Clause of the Fourteenth Amendment.
C. Count IV
Count IV of the Complaint alleges defendants “violated Plaintiff Taylor’s First
Amendment rights by engaging in political patronage in retaliation for Plaintiff Taylor
seeking the office of Ohio County Assessor” [Doc. 1-9 at 8]. Plaintiff claims she was

14

terminated “solely for political reasons” [Id.].
The United States Court of Appeals for the Fourth Circuit has explained political
patronage as follows:
The Elrod-Branti [Elrod v. Burns, 427 U.S. 347 (1976); Branti v. Finkel,
445 U.S. 507 (1980)] line of cases establishes that a public employee may
not, consistent with the First and Fourteenth Amendments, be terminated for
her political affiliation or lack thereof. Elrod, 427 U.S. at 358-59, 96 S.Ct.
2673 (plurality opinion); Knight v. Vernon, 214 F.3d 544, 548 (4th Cir.
2000). “[T]he 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 positions involved.” Rutan v. Republican Party of Ill., 497 U.S. 62,
64-65, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990). These cases concern the
political practice of patronage, or conditioning public employment on party
membership or support.
Patronage violates the First Amendment because of the “restraint it places
on freedoms of belief and association.” Elrod, 427 U.S. at 355, 96 S.Ct.
2673 (plurality opinion). Because patronage forces employees to choose
either to affiliate with a particular party or risk losing their jobs, it compels
speech and belief. Id. at 356-57, 96 S.Ct. 2673. However, patronage
dismissals of individuals in policymaking positions are constitutional, “to the
end that representative government not be undercut by tactics obstructing
the implementation of policies of the new administration, policies presumably
sanctioned by the electorate.” Id. at 367, 96 S.Ct. 2673.
Smith v. Frye, 488 F.3d 263, 268 (4th Cir. 2007).
This case, however, is not one of pure political patronage. Nowhere in plaintiff’s
Complaint is it alleged that plaintiff was fired because she held political views different from
those of defendants. In fact, there is no mention of political parties or political beliefs
whatsoever. Instead, plaintiff is alleging she was fired because she ran for office against
her eventual boss, which this Court believes is a different matter.
This Court finds the United States Court of Appeals for the Sixth Circuit’s opinion in
Carver v. Dennis, 104 F.3d 847 (6th Cir. 1997), to be persuasive authority. In Carver, the
15

plaintiff was a deputy county clerk who announced that she was running for county clerk
against her boss, the defendant, in the next election. Id. at 848. The day after making
such announcement, the defendant fired plaintiff, which led to plaintiff suing defendant
alleging that her termination violated her First Amendment rights. Id.
The Sixth Circuit, in affirming the district court’s grant of summary judgment in favor
of the defendant, explained:
In the district court, the plaintiff cited Elrod v. Burns . . . Branti v. Finkel .
. . and Perry to assert that retention of a government job cannot be based on
an employee’s political beliefs. But the plaintiff’s complaint does not allege,
nor does the record contain any evidence whatsoever, that she lost her
position because of her political beliefs. The complaint alleges and the
record demonstrates only that [defendant] fired her for her rival candidacy,
which is a different matter. The constitutionality of dismissing [plaintiff], a
government employee, for her political beliefs, her expression of those
beliefs, or her political affiliations is not before us.
Carver, 104 F.3d at 849-50 (internal citations omitted). Just as the Sixth Circuit found in
Carver, this Court finds here that plaintiff’s complaint does not allege she lost her position
because of her political beliefs—which is what Elrod and its progeny seek to protect. See
Smith, 488 F.3d at 271 (“The application of Elrod’s rationale—protecting public employees
for whom political affiliation is not a legitimate job qualification from coercion with respect
to their political beliefs—is far less compelling on these facts.”). Instead, the Complaint
alleges plaintiff was fired in “retaliation” for her competing candidacy. As such, “[t]his was
not a patronage dismissal. It was not a dismissal because of political beliefs or affiliations.
It was not a dismissal based on politics at all, except to the extent that running for public
office is a political exercise in its broad sense.” Carver, 104 F.3d at 850. “The First
Amendment does not require that an official in [defendants’] situation nourish the viper in

16

the nest.” Id. at 853; see also Underwood v. Harkins, 698 F.3d 1335, 1345 (11th Cir.
2012) (“Nevertheless, the First Amendment, as interpreted by the Supreme Court and the
Eleventh Circuit, did not require [defendant] to graciously embrace and retain her political
opponent after becoming superior court clerk of Lumpkin County.”); Smith, 488 F.3d at 271
(“In the context of at-will employment, such a belief [that a potential conflict of interest
would hinder efficient administration] is more than an adequate reason to dismiss an
employee.”).
Accordingly, this Court finds plaintiff’s allegations under Count IV are not protected
under the First Amendment. “To hold otherwise . . . would be to read out of the entire line
of relevant Supreme Court precedent the factual requirements of political belief, expression
and affiliation, partisan political activity, or expression of opinion, and to read into that
precedent a fundamental right to candidacy.” Carver, 104 F.3d at 853. Thus, Count IV of
the plaintiff’s Complaint [Doc. 1-9] is hereby DISMISSED as to all defendants.
D. State Law Claims
This Court notes that it has dismissed the federal claims present in the
Complaint—the basis of this Court’s jurisdiction. This Court declines to retain jurisdiction
over the remaining state claims. See 28 U.S.C. § 1367(c)(3) (“The district courts may
decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has
dismissed all claims over which it has original jurisdiction.”); Shanaghan v. Cahill, 58 F.3d
106, 110 (4th Cir. 1995) (explaining that district courts “enjoy wide latitude in determining
whether or not to retain jurisdiction over state claims when all federal claims have been
extinguished.”); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (stating,

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as a general rule, that courts should not exercise supplemental jurisdiction over state law
claims if all federal claims have been dismissed before trial).
However, because a remand will better accommodate the values of judicial
economy, convenience, fairness, and comity, than will dismissal, this Court will remand the
remaining state law claims to the Circuit Court of Ohio County.

Carnegie-Mellon

University v. Cohill, 484 U.S. 343, 357 (1988) (“We conclude that a district court has
discretion to remand to state court a removed case involving pendent claims upon a proper
determination that retaining jurisdiction over the case would be inappropriate.”). As the
United States Supreme Court has explained:
Both litigants and States have an interest in the prompt and efficient
resolution of controversies based on state law. Any time a district court
dismisses, rather than remands, a removed case involving pendent claims,
the parties will have to refile their papers in state court, at some expense of
time and money. Moreover, the state court will have to reprocess the case,
and this procedure will involve similar costs. Dismissal of the claim therefore
will increase both the expense and the time involved in enforcing state law.
Under the analysis set forth in Gibbs [383 U.S. 715], this consequence, even
taken alone, provides good reason to grant federal courts wide discretion to
remand cases involving pendent claims when the exercise of pendent
jurisdiction over such cases would be inappropriate.
Id. at 353. Finding no compelling reason to retain jurisdiction over the remaining state law
claims, as the state court is equally competent and more familiar with the governing law,
this Court finds “the exercise of pendent jurisdiction . . . would be inappropriate” and,
alternatively, finds remand appropriate. Accordingly, the remaining state law claims are
hereby REMANDED to the Circuit Court of Ohio County, West Virginia.

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CONCLUSION
For the reasons discussed above, this Court hereby:
•

GRANTS Defendants’ Motion to Dismiss [Doc. 3] as to the § 1983 claims in
Counts I and IV of the Complaint;

•

GRANTS Defendants’ Motion to Dismiss [Doc. 3] as to the § 1983 claim in
Count III of the Complaint, insofar as it claims relief under the United States
Constitution; and

•

REMANDS the remaining state law claims to the Circuit Court of Ohio
County, West Virginia.

It is so ORDERED.
The Clerk is directed to transmit a copy of this Order to all counsel of record herein.
DATED: November 28, 2017.

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