Albers-Anders v. Pocan

905 F.Supp.2d 944

Sheryl ALBERS–ANDERS, Plaintiff,

v.Mark POCAN, Defendant.

No. 11–cv–392–bbc.

United States District Court, W.D. Wisconsin.

Sept. 24, 2012.

Andrea Joyce Farrell, Jeff Scott Olson, Jeff Scott Olson Law Firm, Madison, WI, for Plaintiff.

Richard Briles Moriarty, Wisconsin Department of Justice, Madison, WI, for Defendant.

OPINION AND ORDER

BARBARA B. CRABB, District Judge.

Plaintiff Sheryl Albers–Anders served in the Wisconsin Assembly as a Republican from 1991–2009. After leaving the assembly, she applied for employment as the committee clerk for the Joint Finance Committee. When defendant Mark Pocan, a Democratic representative, chose not to hire her for the position, she brought this action, contending that he had violated her rights under the First Amendment by choosing not to hire her because she was a Republican. Defendant denies that plaintiff's particular party affiliation was relevant to his decision. Rather, he contends, he chose not to hire plaintiff because the position required political neutrality and he believed that her history of partisan political activity would diminish her effectiveness in the job.

Early in the case, defendant filed a motion for summary judgment on the sole ground of qualified immunity, together with a motion for a protective order limiting discovery. The second of these motions was granted on March 29, 2012. Discovery and briefing were restricted to the question “whether the ‘inherent duties' of the clerk for the Joint Committee on Finance make it inappropriate ... to place restrictions on publicly known political affiliation or past political activities when hiring for the position, and if so, whether a reasonable legislator in defendant's shoes should have known that the law was against him.” The purpose of this early summary judgment motion was to resolve the dispute about the nature of the job and, if possible, avoid extensive discovery into defendant's hiring process.

The early motion was not entirely successful. The undisputed facts show that an applicant's history of partisan political activities is a legitimate employment consideration for the committee clerk position, but it remains to be determined whether defendant rejected plaintiff's application because of her past political activities or because she was a Republican.

Several procedural matters require discussion at the outset. One is the manual describing the clerk's responsibilities, which is relevant to determining the nature of the job and specifically whether a history of political partisanship would be a legitimate reason for not hiring a particular applicant. This manual is the only written material describing the job; no official job description exists.

When defendant filed his motion to dismiss on May 31, 2011 and again when he filed his proposed findings on fact on December 7, 2100, he filed a 38–page document he referred to as the clerk's manual. On April 26, 2012, after 10 months of litigation and just 12 days before plaintiff's responses to the proposed findings of fact were due, defendant filed a 133–page “committee clerk manual,” attested to by Glenn Wavrunek, a legislative aide to defendant. Wavrunek Aff., dkt. # 46. Wavrunek averred that the 133–page version was the correct one.

Not surprisingly, plaintiff responded with a motion to “disregard new facts introduced for the first time in reply.” The title is not accurate; defendant filed the new version of the manual in conjunction with his opening brief, not his reply brief, but plaintiff's point is valid. Introducing an entirely new piece of evidence at this time was inconsiderate, if not improper.

With his reply, defendant filed the affidavit of a paralegal, Sally Mueller, in which she says she mistakenly included only 38 pages of the manual in the first filing and failed to include “the remaining 28 pages.” Mueller Aff., dkt. # 55. This explanation accounts for 66 pages, not for 133 pages and leaves a number of questions. The issue becomes more complex upon examination of the 133–page version, which does not include all of the material in the 38–page version. Defendant did not identify or explain the substantive differences between the two versions.

Plaintiff says that the dispute over the applicable version creates a material issue of fact requiring a trial, but she has identified any differences between the materials that would create a genuine issue of fact about the nature of the clerk's job duties. In deciding defendant's motion, I will rely on the 38–page version as the official manual.

In the same “motion to disregard,” plaintiff objects to what she calls defendant's introduction of new facts in his reply. She says that defendant introduced new facts about his expert Brian Anderson, but she does not say what these are, so it is not necessary to take up her objection. In any event, I am not relying on any of Anderson's opinions.

In the motion plaintiff responds to several procedural objections that defendant raised in his summary judgment filings. For instance, defendant objected to plaintiff's citation to an unsigned copy of his answers to plaintiff's interrogatories, instead of citing the signed original that he served on plaintiff. Def.'s Resp. to Plt.'s PFOF 155–56, 173–88, 203, and 208–10, dkt. # 54; Def.'s Reply Br., dkt. # 53, 19–20. However, plaintiff's counsel filed an affidavit averring that the cited copy was accurate and defendant does not say that the content of the copy differed from that of the signed original. Accordingly, I will overrule defendant's objection and deny plaintiff's motion as moot. The remainder of plaintiff's motion addresses irrelevant disputes about the timing of the discovery responses and will be denied as unnecessary.

From the parties' proposed findings of fact, I find that the following facts are relevant and undisputed.

UNDISPUTED FACTS

A. The Parties

Plaintiff Sheryl Albers–Anders is a former member of the Wisconsin Assembly. Defendant Mark Pocan represents the 78th District of the Wisconsin Assembly, a position he has held since January 1999. From January 2005 until January 2011, defendant was a member of the Joint Committee on Finance; he served as its co-chair from January 2009 until January 2011. In the fall of 2009, after plaintiff left the assembly, she applied for an open position as the committee clerk for the Joint Committee on Finance. Defendant denied her application.

B. The Joint Committee on Finance

The Joint Committee on Finance is a standing committee of the Wisconsin Legislature composed of members of the WisconsinAssembly and Senate. It is the principal legislative committee with oversight of Wisconsin's appropriations and revenues. The committee reviews the governor's biennial budget proposal and all revenue items in spending bills. Wis. Stat. § 13.093(1). It also has specific authority to review a number of bills and programs, such as programs started with federal aid, Wis. Stat. § 13.095; bills proposing revocation of operating privileges, Wis. Stat. § 13.0965; bills affecting housing, Wis. Stat. § 13.099; and appropriation and position changes, Wis. Stat. § 13.101. In addition, the committee serves as an ongoing fiscal supervisor for state agencies, with authority over more than 100 distinct areas. Wisconsin agencies make more than 100 different statutorily required reports to the committee. At an agency's request, the committee may change the number of the agency's authorized positions funded by segregated or general revenue. The committee also serves as an emergency appropriations board, with the authority to supplement agency appropriations for emergency purposes and to transfer funds between programs. Wis. Stat. § 16.515.

The committee's authority and many of its procedures derive from various Wisconsin statutes, which often contain cross-references to federal requirements. Accordingly, the committee requires sound procedures and record-keeping to insure that it can meet its various deadlines. Action or inaction by the committee affects Wisconsin's fiscal situation. If the committee fails to act within its set deadlines, policy proposals cannot be implemented and major sources of revenue from the federal government may be lost.

Since January 1999, the committee has consisted of eight senators and eight representatives. The majority party in the assembly is the source of six members and the minority party supplies two members. The Speaker of the assembly appoints the members from the assembly, although by tradition the Speaker adopts the recommendations of the party leadership. One senator and one representative serve as co-chairs of the committee and alternate responsibility for presiding at the committee's hearings.

When the Democratic party gained the majority in the assembly in January 2009, defendant became the assembly co-chair of the Joint Committee on Finance. At that time, the committee also added five new members from the assembly. Defendant remained co-chair until January 2011, when the Republican party regained the majority and he decided not to seek reappointment to the committee. The committee added five new assembly members in 2011. The assembly membership on the committee has changed between every one of the 51 legislative sessions since the committee's creation in 1911.

C. The Assembly Committee Clerk Position

Both the senate and assembly maintain a “committee clerk” for the Joint Committee on Finance. Previously, the responsibility for the committee hearings alternated between the clerks for the senate and assembly. Since January 2009, however, the assembly clerk has been responsible for all of the committee's hearings. Indeed, the website for the Wisconsin Legislative Fiscal Bureau now identifies the assembly committee clerk as the committee clerk for the Joint Committee on Finance, so I will refer to the assembly committee clerk as “the committee clerk.”

The committee clerk is assigned to the staff of the assembly...