Federal Court Digests: June 4, 2007

Daily Record, The (Baltimore), Jun 4, 2007

The hearing examiner found that Ms. Smith's discharge did not violate state or federal law." Smith v. Frye, No. 2:06-CV-14, 2006 U.S. Dist. LEXIS 39909, at *4 (N.D. W. Va. June 14, 2006). The designee of the Administrative Director of the Supreme Court of Appeals affirmed the examiner's report, and the Supreme Court of Appeals denied Ms. Smith administrative review.

After exhausting Ms. Smith's administrative review, both Ms. Smith and Mr. Smith filed suit in federal court alleging that Judge Frye violated their First Amendment rights. Judge Frye brought a FRCP 12(b)(6) motion to dismiss Ms. Smith's claim, and a motion to dismiss Mr. Smith's claim for lack of standing. The district court granted both motions. The 4th Circuit affirmed.

LAW: Ms. Smith claimed that the district court erred in dismissing her claims under Rule 12(b)(6). The district court applied the so-called McVey test, the three-prong test to determine if a retaliatory employment action violates an employee's First Amendment rights. See Ridpath v. Bd. of Governors of Marshall Univ., 447 F.3d 292, 316 (4th Cir. 2006); McVey v. Stacy, 157 F.3d 271, 277- 78 (4th Cir. 1998).

First, the public employee must have spoken as a citizen, not as an employee, on a matter of public concern. Second, the employee's interest in the expression at issue must have out-weighed the employer's interest in providing effective and efficient services to the public. Third, there must have been a sufficient causal nexus between the protected speech and the retaliatory employment action. Ridpath, 447 F.3d at 316. Ms. Smith's claim failed the first prong of the McVey test because she had not spoken or expressed herself in any way.

Ms. Smith argued that her termination violated the First Amendment even in the absence of the exercise of First Amendment speech rights, relying upon the Supreme Court's decisions in Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S. 507 (1980), and their progeny. The Elrod-Branti line of cases establishes that a public employee may not, consistent with the 1st and 14th Amendments, be terminated for her political affiliation or lack thereof. Elrod, 427 U.S. at 358-59; Knight v. Vernon, 214 F.3d 544, 548 (4th Cir. 2000).

In this circuit, Elrod cases have fallen into two primary archetypes: (1) cases in which the person being fired is actively associated with a political party or faction (or actively chooses not to be so associated) and the individual making the firing decision is a person seeking office, e.g., Knight v. Vernon, 214 F.3d 544, 545-48 (4th Cir. 2000); or (2) cases in which newly elected or appointed officials fire supporters of their rivals during a political transition, e.g., Sales v. Grant, 158 F.3d 768, 770-74 (4th Cir. 1998).

In each of the above-cited cases, even those in which the plaintiff's claim ultimately failed, there is a clear and direct connection among the supervisor's own political association, that of the terminated employee, and the adverse employment action. There was no such connection here. See Jenkins, 119 F.3d at 1159; Sales, 158 F.3d at 774; Knight, 214 F.3d at 545. Accordingly, Ms. Smith did not allege a constitutional violation here, and therefore the district court's dismissal of her claims was affirmed.