- Patronage Dismissal Doctrine Did Not Apply to Adverse Employment Action That Was Motivated by Employee's Personal Loyalties
- July 20, 2009 | Authors: Diana D. Halpenny; Mona Ebrahimi; Bruce A. Scheidt; David W. Tyra
- Law Firm: Kronick Moskovitz Tiedemann & Girard, A Law Corporation - Sacramento Office
In Nichols v. Dancer, (--- F.3d ---, C.A.9 (Nev.), May 18, 2009), the United States Court of Appeals for the Ninth Circuit considered whether the “patronage dismissal doctrine immunizes public employers who terminate employees on the basis of perceived lack of personal loyalty.” The Court of Appeals held that the patronage dismissal doctrine does not immunize public employers who terminate employees in situations involving personal, rather than political, loyalty.
Kathleen Nichols (“Nichols”) worked as an administrative assistant for the Washoe County School District (“District”). For six years she worked as the administrative assistant to Jeffrey Blanck, who was general counsel for District, and Nichols was privy to sensitive information about employees and confidential information about negotiations. Nichols, however, was also Blanck’s friend. After Blanck began having problems with District’s superintendent, District transferred Nichols to a job in human resources. District employee Laura Dancer (“Dancer”) told Nichols she would be restored to her position in the general counsel’s office no matter whether or not District decided to fire Blanck. The next day, District held an open meeting to discuss Blanck’s future with District. Nichols claims that she attended the meeting to see another friend receive an award and to see what was going to happen to Blanck. Nichols denies that she was at the meeting to support Blanck, but she did sit next to him at the meeting. At that meeting, District’s Board of Trustees voted to terminate Blanck.
The day after the meeting, Dancer told Nichols that she would not be transferred back to the legal counsel’s office and that District was “forced to question” Nichols’ loyalty. Soon after Blanck was fired, he called Nichols and she told him that she was taking some time off, outside counsel was being brought into the office, and “Dancer had requested a list of ongoing matters.” Dancer believed that the information Nichols provided Blanck was sensitive and could help him in his case for wrongful termination. District also claimed that some files went missing and then Nichols decided to take some time off work. Nichols eventually decided that she would retire from District, an action which she characterized as “to her severe financial detriment.”
Nichols brought a lawsuit against Dancer, District, and its superintendent (collectively, “Defendants”) alleging that they retaliated against her for exercising her rights under the First Amendment to the United States Constitution. The federal district court granted judgment to Defendants on the ground that “Nichols was a confidential employee vulnerable to a patronage dismissal without regard for her First Amendment rights.”
The Court of Appeals reversed the decision of the district court. The appellate court held that the patronage dismissal doctrine does not apply because Nichols’ claims involved personal, rather than political, loyalty.
“A public employer may not unduly abridge an employee’s First Amendment rights.” A government employee may, however, “restrict their employees’ speech more than the government may restrict the speech of its constituents.” In order to recover on a claim of First Amendment retaliation, a government employee must show that he or she engaged in protected speech, the employer took an adverse employment action against him or her, and that his or her “speech was a ‘substantial or motivating factor’ for the adverse employment action.” If an employee makes a showing of these three factors, the burden then shifts to the employer to show that its “‘legitimate administrative interests outweigh the employee’s First Amendment rights’” or that it would have reached the same decision to take the adverse employment action in absence of the employee’s speech. A court must balance the interests of the employee “as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”
However, under certain circumstances, a government employer may take adverse employment action against an employee who engages in speech that is normally protected by the First Amendment. One such example is the “patronage dismissal doctrine,” which “allows public employers to terminate certain public employees on the basis of their political beliefs and loyalties.” District argued that this doctrine is applicable here because Nichols was a confidential employee. The court disagreed. Nichols was terminated because District perceived that Nichols lacked personal loyalty, not because she lacked political loyalty. The court held that the patronage dismissal doctrine does not apply to Nichols’ termination.
The court recognized that “[a]n employer engages in patronage dismissals when a newly elected or appointed public officer fires existing employees on the basis of their political beliefs or loyalties.” The United States Supreme Court, however, has held that in cases of patronage dismissal, the question that must be asked in order to determine if such dismissal is proper “is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.”
The court opined that “the patronage dismissal doctrine is designed to ensure the integrity of the political process.” Here, Nichols was not fired for her political loyalties. The court held that the patronage dismissal doctrine does not apply to claims involving personal loyalties. Because this case involves personal loyalty, the court found that it did not need to “reach the questions of whether Nichols was a policymaking/confidential employee or whether party affiliation was an appropriate requirement for her job.”