United States District Court, E.D. Kentucky, Southern Division
[Copyrighted Material Omitted]
For Oberdeen Click, Plaintiff: Nicholas C.A. Vaughn, LEAD ATTORNEY, Law Office of Nick Vaughn, Somerset, KY.
For Randy Thompson, Individually, Randy Thompson, in his Official Capacity as JUDGE-EXECUTIVE of Knott County, Kentucky, Defendants: Jonathan C. Shaw, LEAD ATTORNEY, Porter, Schmitt, Banks & Baldwin, Paintsville, KY.
OPINION AND ORDER
KAREN K. CALDWELL, CHIEF UNITED STATES DISTRICT JUDGE.
This matter is before the Court on the defendants' Motion for Summary Judgment (DE 40). For the following reasons, the motion will be granted.
Plaintiff Oberdeen Click is a Democrat who worked for the Knott County Department of Parks while defendant Randy Thompson was the county's judge/executive, which is an elected position. See KRS § 67.700. Click began working for the county in 2002. According to Click, his duties largely consisted of mowing the grass. (DE 48-2, Click Statement at CM-ECF p. 2; DE 38, Click Dep. at CM-ECF p. 17.) He performed certain other tasks as needed (DE 38 Click Dep. at CM-ECF p. 17, 25), but Click testified on two separate occasions that his main duty was mowing the grass and that is consistent with additional affidavits in the record. (DE 48-2, Click Statement at CM-ECF p. 2; DE 38, Click Dep. at CM-ECF p. 17; DE 54-1, Mosley Aff.; DE 54-52, Weinberg Aff.; DE 40-2, Mullins Aff.; DE 40-3, Chaffins Aff.)
Thompson was a Republican during the relevant time period. He was up for election in 2006 and 2010. (DE 20, Complaint ¶ 10.)
By a letter dated November 6, 2009 that was sent to Click and various other county employees, Thompson informed the employees that county severance tax revenues were down and that the employees would be laid off at least until the revenues returned to their former level. In the letter Thompson stated:
I'm sure by now you've probably heard the coal and mineral tax revenues for Knott County this quarter are far less than expected or budgeted. The coal tax receipts dropped from $630,988.74 in October 2008 to $448,814.02 in October of 2009. The mineral (gas & oil) dropped from $674,792.89 in October 2008 to $186,219.17 in October 2009. That is a decrease of over $670,000.00 in just one quarter. That combined with nearly $500,000 still owed Knott County by FEMA from the May 2009 flooding has put a tremendous burden on county finances. These coal and mineral tax revenues go into the LGEA account which is responsible for the payroll for several county employees. Due to this unexpected decrease in revenue, it is with great anguish that I must lay you off from your position with the county effective November 6, 2009. I sincerely hope this is a temporary situation and that we are able to bring you back to work as soon as revenues return to normal. In the meantime, I do encourage you to take full advantage of unemployment benefits that are available to you.
(DE 48-12, Thompson Letter.)
Click was one of 35 county employees laid off in November 2009. (DE 54-52, Weinberg Aff.; DE 54-5, Nov. 5, 2009 Resolution.) Click alleges that the county and Thompson laid him off and then, in 2011 and 2012, refused to rehire him, not because coal and mineral severance tax revenues had decreased, but because of his support for Democratic candidates running against Thompson in the 2006 and 2010 elections. (DE 20, Complaint ¶ ¶ 18, 20, 21.)
He asserts a federal claim under 42 U.S.C. § 1983, alleging that the defendants violated his First Amendment right to support political candidates, and also a state-law claim of wrongful discharge. Thompson
and the county move for summary judgment in their favor.
By an opinion dated October 18, 2012, this Court determined that Click's § 1983 claims based on the 2009 layoff and 2011 failure to hire are time barred but that his § 1983 claim based on the 2012 failure to rehire is timely. Click v. Thompson, 898 F.Supp.2d 927, 933 (E.D. Ky. 2012).
Click then moved to amend his complaint to assert that the 2009 layoff and 2011 failure to rehire were part of a " continuing violation" by Thompson. " When a continuing violation is found, a plaintiff is entitled to have the court consider all relevant actions allegedly taken pursuant to the employer's discriminatory policy or practice, including those that would otherwise be time barred." Sharpe v. Cureton, 319 F.3d 259, 267 (6th Cir. 2003) (citation and quotations omitted).
The Sixth Circuit " employs the continuing violations doctrine most commonly in Title VII cases, and rarely extends it to § 1983 actions." Id. " Courts have been extremely reluctant to apply [the continuing-violations] doctrine outside of the context of Title VII." LRL Properties v. Portage Metro Housing Authority, 55 F.3d 1097, 1105 n. 3 (6th Cir. 1995).
Further, Click's 2009 discharge and the 2011 failure to hire are discrete discriminatory acts, " of which [Click] was immediately aware when they occurred." Bell v. Ohio State University, 351 F.3d 240, 248 (6th Cir. 2003). In National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), the Supreme Court explicitly stated " discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. at 113. The Sixth Circuit has recognized that " [t]he Supreme Court's decision in Morgan largely curtailed the continuing-violations theory when applied to 'discrete discriminatory acts.'" Austion v. City of Clarksville, 244 F.App'x 639, 647 (6th Cir. 2007) (citing Sharpe, 319 F.3d at 268. Nevertheless, the Sixth Circuit has held that " the continuing-violations theory still applies to discrete discriminatory acts that are part of a 'longstanding and demonstrable policy of discrimination.'" Id. (quoting Sharpe, 319 F.3d at 268.)
For purposes of this motion, the Court assumes that Click has presented sufficient evidence that, while judge/executive, Thompson implemented and maintained a policy of discharging and refusing to hire supporters of his political opponents.
Click must show that he himself was a victim of this policy. To establish a prima facie case of retaliation, a plaintiff must show: (1) he was engaged in a constitutionally protected activity; (2) he was subjected to an adverse employment action or deprived of some employment benefit; and (3) his protected conduct was a substantial or motivating factor for the adverse employment decision. Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003).
In their summary judgment motion, the defendants do not dispute that Click engaged in a constitutionally protected activity or that Click was subjected to an adverse employment action. Thus, the issue is whether Click has produced sufficient evidence that his protected conduct was a substantial or motivating factor for the adverse employment decisions.
Summary judgment is appropriate if, taking the evidence in the light most favorable to the nonmoving party, " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). " A
genuine issue of material fact exists where there is sufficient evidence for a trier of fact to find for the non-moving party." Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006). A " mere scintilla" of evidence is not enough ...