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McKee v. Reuter: The First Amendment Does Not Permit Employment Termination Based on Political Affiliation
Friday, 25 January 2019
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McKee v. Reuter: The First Amendment Does Not Permit Employment Termination Based on Political Affiliation

Jeanette McKee was a chief deputy clerk for the Circuit Court of Jefferson County, Missouri. In 2014, she ran as a candidate to replace the outgoing clerk of court. Her opponent in the race, Michael Reuter, was ultimately elected. During the campaign, McKee commented on an incident of domestic violence involving Reuter.

On Reuter’s first day on the job, he instructed McKee to move from her semi-private work desk to a cubicle immediately in front of his office. From there, Reuter began assigning McKee menial work and excluding McKee from meetings. By Reuter’s third day, he demoted McKee and replaced her with a much less qualified individual, Christy Scrivner. Eventually, Reuter issued McKee a notice for corrective action, which was ultimately withdrawn, but only after McKee contested the notice and it was recommended to Reuter that he withdraw it.

After an incident involving gossip among employees, Reuter terminated McKee’s employment. McKee was escorted from the building, and Scrivner wrote the word “karma” on a bulletin board outside of her office. McKee appealed her termination and was eventually reinstated. Upon her return, however, she was assigned to traffic duty, which required a skillset far below McKee’s capabilities. McKee resigned from the position in or around June 2015.

A co-worker of McKee, Sharon Hickman, who had supported McKee during the clerk of court election campaign, was also transferred to the traffic division. Prior to the transfer, Hickman had been stationed in a separate division for four years, and had never received a negative performance evaluation in that position. In her position in the traffic division, Hickman was trained by Teresa Cusick, who had many years experience, but who consistently provided Hickman with conflicting instructions. At one point, Cusick told Hickman that she was “stupid,” that Hickman had a “mental handicap,” and that Hickman “would never learn the job.” Hickman complained of the work environment to Reuter, but Reuter failed to act. Instead, Reuter instituted monthly performance evaluations wherein Hickman was consistently negatively appraised by Cusick.

Hickman was terminated in October 2015. She was eventually reinstated after an appeal. After returning to work, Hickman underwent surgery and requested to be restricted to light duty. Reuter did not respond to the request. Hickman eventually suffered a nervous breakdown. She was granted an extended unpaid leave, which required that she fax in a handwritten request. Scrivner confirmed that she received the request. By October 5, 2016, however, Scrivner told Hickman that the request was not dated and if Hickman did not return to work the next day she would be terminated. Hickman then resigned.

McKee and Hickman both sued Reuter and Scrivner in federal court, alleging that they suffered adverse employment action at the hands of Reuter and Scrivner based upon political party affiliation. At the trial court level, Reuter and Scrivner argued that they were immune from suit as public employees of the State of Missouri. The trial court, however, rejected the claims for immunity on Hickman’s claim against Reuter and McKee’s claims against Reuter and Scrivner. According to the trial court, Reuter and Scrivner were not entitled to immunity because the law governing McKee’s and Hickman’s claims was clearly established and the facts supported McKee’s and Hickman’s constitutional violation claims. Reuther and Scrivner appealed to the United States Eighth Circuit Court of Appeals.

Agreeing with the trial court, the Eighth Circuit stated that a public employee is not entitled to qualified immunity when “‘the facts taken in the light most favorable to [the plaintiffs] make out a violation of a constitutional or statutory right; and’ . . . that right was clearly established at the time of the alleged violation.’” According to the Eighth Circuit, at the time of McKee’s and Hickman’s employment, it was clearly established that the First Amendment protects “political patronage.” Thus, an employee may not be terminated based upon his or her political affiliation. The only exception to the rule being that if “the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved[,]” then party affiliation may be used as a basis for termination.

In McKee’s and Hickman’s cases, however, there had been no showing that a particular party affiliation was a requirement to effectively perform the job. And while the Eighth Circuit agreed that there is no clear First Amendment right to run for office, McKee’s claim was “predicated upon her affiliation . . ., the expression of her political views, and the activities she undertook . . . during a partisan campaign, which fall squarely within the protections of the First Amendment.” Finally, because McKee came forward with sufficient evidence demonstrating that her termination was driven by political animus, Reuter and Scrivner were not immune from suit and McKee’s case proceeded to trial.

As for Hickman’s claim against Reuter, the Eighth Circuit recognized that she was only transferred from her previous position of four years after a person of the opposite political party was elected clerk of court. In the face of repeated requests for transfer from Hickman, and after other employees were allowed to transfer from one division to another, Reuter instructed Hickman to quit and he otherwise ignored her requests. Accordingly, Hickman’s suit against Reuter was allowed to proceed to trial.

This case demonstrates the uncontroversial proposition that employees cannot be terminated based on political affiliation. Indeed, the First Amendment protects a broad swath of speech, including political speech. While employers may terminate employees for a variety of reasons, it cannot be based purely on political expression. As the Eighth Circuit expressed, however, the issue becomes murkier when the employee is not merely expressing a political viewpoint, but, instead, running for public office. The First Amendment has not been interpreted as protecting an individual’s right to seek public office; it has been interpreted as protecting an individual’s right to comment on the office and the individual holding the office.

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