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Vogt v. McIntosh County Board of County Commissioners.

No. 22-7061. 4/15/2024. E.D.Okla. Judge Carson. Employment Termination—First Amendment—Qualified Immunity—Clearly Established Precedent.

April 15, 2024

For 13 years, Vogt and Rodebush worked together at the McIntosh County Clerk’s Office. In 2016, they both ran for the open position of McIntosh County Court Clerk. Rodebush won the election and retained Vogt as a deputy court clerk. Rodebush sought reelection in 2020 and asked Vogt if she too intended to run for the position. Vogt told Rodebush that she did not intend to run for the office again and would support Rodebush’s reelection campaign. Then Vogt’s best friend, a former county clerk’s office employee, told Vogt that she was running against Rodebush. Vogt immediately informed Rodebush that she would continue to support Rodebush’s reelection privately, but given her friendship with Rodebush’s opponent, Vogt would not support her campaign publicly. Vogt offered Rodebush discrete forms of assistance and engaged in activities such as campaigning door-to-door for her and appearing in photos for Rodebush to use in campaign materials. But Vogt refused to openly support Rodebush’s campaign and to comment or post about her support on Facebook. Rodebush complained about Vogt’s lack of open support, telling Vogt, “[I]f you can’t support me that way openly, I would just rather you not say anything.” From then on, Rodebush ignored Vogt around the office, and she continued to do so after Rodebush won reelection. Twenty days after winning reelection, Rodebush fired Vogt. Vogt filed this lawsuit under 42 USC § 1983, alleging that Rodebush violated her First Amendment rights of free speech and political affiliation. Rodebush moved for summary judgment, raising qualified immunity as a defense, and the district court denied the motion.

On appeal, Rodebush challenged the district court’s denial of qualified immunity. In Elrod v. Burns, 427 U.S. 347, 359 (1976), the Supreme Court held that a public employer inhibits constitutionally protected belief and association when it terminates an employee for the employee’s failure to provide political support. The Court reaffirmed this rule in Branti v. Finkel, 445 U.S. 507, 515 (1980), and the “Elrod/Branti test” protects public employees from discrimination based on their political beliefs, affiliations, or nonaffiliations unless their work requires political allegiance. It is undisputed that Vogt’s work does not require political allegiance, so the issue here was whether Vogt suffered discrimination based on her political beliefs, affiliation, or nonaffiliation. Public employers violate an employee’s First Amendment political affiliation rights if they fire a public employee for refusing a request for political support, for choosing not to politically affiliate with the official, or for discharging an employee because of the employee’s position regarding a candidate for office. Here, there is a genuine issue of material fact about whether Rodebush fired Vogt for protected speech or conduct and thus violated Vogt’s First Amendment rights to political affiliation under the Elrod/Branti test. Further, controlling precedent clearly established Vogt’s First Amendment rights at the time she was fired, so Vogt satisfied both requirements to defeat a claim of qualified immunity at summary judgment.

The order was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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