Wanda Sowards v. Loudon County , Tennessee

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0046P (6th Cir.)
File Name: 00a0046p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
W ANDA S OWARDS,
Plaintiff-Appellant,
v.
LOUDON C OUNTY ,
TENNESSEE and TIMOTHY
GUIDER, individually and in
his official capacity as Sheriff
of Loudon County,
Tennessee,
Defendants-Appellees.
;>

1
No. 98-6768
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 96-00659—James H. Jarvis, District Judge.
Argued: October 26, 1999
Decided and Filed: February 8, 2000
Before: JONES, MOORE, and GILMAN, Circuit Judges.

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2 Sowards v. Loudon County,
Tennessee, et al.
No. 98-6768
_________________
COUNSEL
ARGUED: Peter Alliman, WHITE, CARSON &
ALLIMAN, Madisonville, Tennessee, for Appellant. Dean B.
Farmer, HODGES, DOUGHTY & CARSON, Knoxville,
Tennessee, for Appellees. ON BRIEF: Peter Alliman,
WHITE, CARSON & ALLIMAN, Madisonville, Tennessee,
for Appellant. Dean B. Farmer, Keith L. Edmiston,
HODGES, DOUGHTY & CARSON, Knoxville, Tennessee,
for Appellees.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Wanda
Sowards filed suit under 42 U.S.C. § 1983 against Loudon
County and the Sheriff of Loudon County Timothy Guider, in
his individual and official capacities, claiming that she was
terminated from her position as a jailer at the Loudon County
Sheriff’s Department in retaliation for exercising her First
Amendment rights of political and intimate association.
Sowards’s husband, William Sowards, had run unsuccessfully
for sheriff against Guider in early 1994. Guider terminated
Sowards’s employment in July 1995 allegedly because she
missed an outstanding warrant on a person brought into the
jail. The district court granted Loudon County and Guider’s
motion for summary judgment and dismissed the case because
it found no genuine issue of material fact existed to show
Sowards’s constitutionally protected activity substantially
motivated Guider to terminate her employment. Sowards
appeals the dismissal of her case. Loudon County and Guider
respond that even if Sowards’s First Amendment rights were
violated, political affiliation is a proper consideration for the
position of a jailer under the Elrod/Branti exception. In
addition, they claim that Guider is entitled to qualified
immunity in his individual capacity.

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No. 98-6768 Sowards v. Loudon County,
Tennessee, et al.
3
We conclude that Sowards has established that she suffered
an adverse action while engaged in constitutionally protected
activity. A genuine issue of material fact exists whether
Guider’s action was substantially motivated by this activity.
Because political considerations are not appropriate for the
position of a jailer, we hold that the Elrod/Branti exception to
the First Amendment rule protecting public employees against
politically-based dismissals does not apply in this case.
Finally, Guider is not entitled to qualified immunity in his
individual capacity. Therefore, we REVERSE and
REMAND for further proceedings in Sowards’s retaliation
suit against Loudon County and Guider.
I. FACTS AND PROCEDURE
Wanda Sowards began working at the Loudon County
Sheriff’s Department (“LCSD”) as a road deputy in 1986 and
then transferred to the position of a jailer in 1989. In early
1994, her husband, William Sowards, announced that he
would be running as a Republican for the position of Sheriff
of Loudon County against incumbent Timothy Guider, also a
Republican. Sowards’s husband lost to Guider in the
Republican primary election in May 1994.
Sowards claims that after her husband announced his
candidacy, her work environment changed significantly. She
asserts that her supervisors ostracized her, disciplined her
more harshly than her co-workers, changed her day shift to a
split shift, and reduced her overtime opportunities. Finally,
on July 19, 1995, she was terminated allegedly because she
had missed an outstanding warrant.
On June 28, 1995, Edward D. Ricker was arrested on a DUI
charge and brought to the LCSD jail. Sowards was working
on that date and was responsible for checking for any
outstanding warrants on persons brought into the facility. She
claims that she did not find an outstanding warrant on Ricker
because she had understood his name to be “Wicker,”
resulting in Ricker later being released without the warrant

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4 Sowards v. Loudon County,
Tennessee, et al.
No. 98-6768
being served. Sowards’s supervisor, Chief Jailer Joe Bridges,
recommended terminating her employment because the
warrant involved a serious burglary charge that had been
outstanding for over one year. He did not consider the fact
that she may have misunderstood the person’s name to be an
important consideration in his recommendation. After
receiving Bridges’s recommendation, Guider did not conduct
any further investigation. A few days later he agreed to
terminate Sowards’s employment.
Sowards filed a complaint against Loudon County and
Guider, in his individual and official capacities, pursuant to
42 U.S.C. § 1983, claiming that she was terminated in
retaliation for the exercise of her First Amendment rights of
political and intimate association. Loudon County and Guider
filed a motion for summary judgment, arguing that no genuine
issue of material fact exists regarding Sowards’s retaliation
claim. They also claimed that political considerations are
appropriate for the position of a jailer under the Elrod/Branti
exception and that Guider is entitled to qualified immunity in
his individual capacity. The district court granted Loudon
County and Guider’s motion in part and dismissed Sowards’s
claim based on the right of intimate association. The district
court denied their motion with respect to Sowards’s claim
based on the right of political association and found
insufficient evidence upon which to decide whether political
considerations are appropriate for the position of a jailer and
to evaluate the defense of qualified immunity. After more
discovery, Loudon County and Guider filed a second motion
for summary judgment based on the same arguments.
Sowards filed a response to this motion and a motion to
reconsider the district court’s dismissal of her right of
intimate association claim. The district court granted
Sowards’s motion to reconsider her right of intimate
association claim but then granted Loudon County and
Guider’s motion for summary judgment dismissing all of
Sowards’s claims. It reasoned that no rational juror could
find Guider’s decision to terminate Sowards was substantially
motivated by the exercise of her First Amendment rights of
No. 98-6768 Sowards v. Loudon County,
Tennessee, et al.
21
had terminated the employment of his deputy sheriffs for
political reasons. See Hall v. Tollett, 128 F.3d 418, 429-30
(6th Cir. 1997). Defendants seem to argue that because the
law was unclear as to whether political affiliation was an
appropriate consideration for the position of deputy sheriff in
Tennessee, it also was unclear regarding the position of a
jailer at the LCSD. A deputy sheriff, however, has different
duties than a jailer under Tennessee law. For example, the
deputy sheriffs in Hall were responsible for patrolling the
roads of the county and responding to emergency situations.
See id. at 429. Therefore, the fact that the law may have been
unclear regarding the applicability of the Elrod/Branti
exception to the position of deputy sheriff in 1995 is not
dispositive in this case.
As discussed in Part II.B supra, however, the position of a
jailer is analogous to the position of a prison guard, and the
Supreme Court concluded that political considerations are
inappropriate for the employment decisions concerning a
prison guard in 1990. See Rutan v. Republican Party of
Illinois, 497 U.S. 62, 79 (1990). It was objectively
unreasonable for Guider to believe that political
considerations were appropriate for the position of a jailer in
1995 in light of the Supreme Court’s 1990 Rutan decision.
Because the law was so clearly established that he could not
reasonably take political considerations into account when
terminating Sowards, Guider is not entitled to qualified
immunity in his individual capacity for Sowards’s political
association claim.
III. CONCLUSION
For the reasons stated above, we REVERSE the district
court’s grant of summary judgment to defendants and
REMAND for further proceedings on Sowards’s claim of
retaliation based on her rights of political and intimate
association under the First Amendment.

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20 Sowards v. Loudon County,
Tennessee, et al.
No. 98-6768
4We emphasize again that the actual duties of a particular position,
and not its title, govern the Elrod/Branti analysis. See Hall v. Tollett, 128
F.3d 418, 423 (6th Cir. 1997). Because the duties of a jailer may vary
from state to state, it is important to examine the applicable state and local
law when deciding whether political considerations may be used in
employment decisions concerning a jailer. See id. at 427-29 (engaging in
a case-by-case analysis of state and local law to determine whether the
position of deputy sheriff falls within the Elrod/Branti exception).
Therefore, in deciding whether the law was clearly established for the
purpose of qualified immunity, we look for decisions that involve
positions with the same or similar statutory duties.
5Sowards correctly notes that the Cagle court did not recognize or
address the Supreme Court’s conclusion in Elrod that political
considerations may not be used for the employment of the position of
chief deputy sheriff. See Elrod v. Burns, 427 U.S. 347, 350-51, 372-73,
374-75 (1976).
have noted that a Supreme Court or Sixth Circuit decision
specifically holding that a certain position falls under this
exception is not necessary for the law to be clearly established
under the doctrine of qualified immunity. See McCloud v.
Testa, 97 F.3d 1536, 1556 (6th Cir. 1996). Neither the
Supreme Court nor the Sixth Circuit has evaluated whether a
jailer at the LCSD, or a jailer possessing the same duties as
those mandated by Tennessee law, falls under the
Elrod/Branti exception.4
Defendants argue that our decision in Cagle v. Gilley, 957
F.2d 1347 (6th Cir. 1992), shows the “murkiness” of the law
with respect to positions in a county sheriff’s department. In
that decision, we concluded that as of 1988, no clearly
established law prohibited the consideration of political
affiliation for the position of deputy sheriff in Tennessee. See
Cagle, 957 F.2d at 1349 (pointing out a circuit split regarding
whether this position is subject to the Elrod/Branti
exception).5 In another decision, we determined that the state
of the law regarding patronage dismissals of deputy sheriffs
in Tennessee had not been clarified as of September 1, 1994,
and therefore we granted qualified immunity to a sheriff who
No. 98-6768 Sowards v. Loudon County,
Tennessee, et al.
5
political and intimate association. Sowards filed a timely
notice of appeal of the district court’s decision.
II. ANALYSIS
A. Sowards’s First Amendment Retaliation Claim
A district court’s decision to grant summary judgment is
reviewed de novo. See General Elec. Co. v. G. Siempelkamp
GmbH & Co., 29 F.3d 1095, 1097 (6th Cir. 1994). Summary
judgment is proper only if there is no genuine issue as to any
material fact and the moving party is entitled to a judgment as
a matter of law. FED . R. C IV . P. 56(c). We must look beyond
the pleadings and assess the proof to determine whether there
is a genuine need for trial. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). The proper
inquiry is whether the evidence is such that a reasonable jury
could return a verdict for the plaintiff. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Street v.
J.C. Bradford & Co., 886 F.2d 1472, 1476-80 (6th Cir. 1989).
We view inferences to be drawn from the underlying facts in
the light most favorable to the nonmoving party. See General
Elec. Co., 29 F.3d at 1097-98.
Sowards claims that she was terminated from her position
as a jailer at the LCSD for exercising her First Amendment
rights of political and intimate association in violation of 42
U.S.C. § 1983. In order to establish retaliation for engaging
in constitutionally protected activity, a plaintiff must prove
the following elements: “(1) the plaintiff engaged in
protected conduct; (2) an adverse action was taken against the
plaintiff that would deter a person of ordinary firmness from
continuing to engage in that conduct; and (3) there is a causal
connection between elements one and two – that is, the
adverse action was motivated at least in part by the plaintiff’s
protected conduct.” Thaddeus-X v. Blatter, 175 F.3d 378, 394
(6th Cir. 1999) (en banc). In brief, this analysis focuses on
whether the adverse employment action was motivated in
substantial part by the plaintiff’s constitutionally protected

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6 Sowards v. Loudon County,
Tennessee, et al.
No. 98-6768
1In Whitaker v. Wallace, 170 F.3d 541, 544 (6th Cir. 1999), a panel
in this circuit applied the burden shifting analysis used in Title VII
employment discrimination cases to a First Amendment retaliation claim.
The Supreme Court, however, has expressly held that in a First
Amendment retaliation case, once a plaintiff shows that her
constitutionally protected conduct was a substantial factor in an adverse
employment decision, the burden of persuasion shifts to the defendant to
“show[] by a preponderance of the evidence that it would have reached
the same decision . . . even in the absence of the protected conduct.” Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977);
see also Board of County Comm’rs v. Umbehr, 518 U.S. 668, 675 (1996)
(Stating that to prevail in a First Amendment retaliation claim, “an
employee must prove that the conduct at issue was constitutionally
protected, and that it was a substantial or motivating factor in the
termination. If the employee discharges that burden, the government can
escape liability by showing that it would have taken the same action even
in the absence of the protected conduct.”). We have followed this
analysis in opinions in this circuit. See Barrett v. Harrington, 130 F.3d
246, 262 (6th Cir. 1997), cert. denied, 118 S. Ct. 1517 (1998); Ratliff v.
Wellington Exempted Village Sch. Bd. of Educ., 820 F.2d 792, 795 (6th
Cir. 1987); see also Kreuzer, 128 F.3d 359, 365 n.1 (6th Cir. 1997)
(Moore, J., dissenting) (concurring in the majority opinion’s statement of
the law and noting that unlike the employment discrimination cases
brought under Title VII, once a plaintiff establishes sufficient evidence
that the protected conduct was a substantial or motivating factor behind
the adverse employment action, the burden of persuasion shifts to the
defendants to prove that the same decision would have been made in the
absence of the protected conduct), cert. denied, 118 S. Ct. 1802 (1998);
Acevedo-Diaz v. Aponte, 1 F.3d 62, 67 (1st Cir. 1993) (noting that unlike
the burden shifting analysis performed under Title VII cases, in a First
Amendment political retaliation claim, “once the burden of persuasion
shifts to the defendant-employer, the plaintiff-employee will prevail
unless the fact finder concludes that the defendant has produced enough
evidence to establish that the plaintiff’s dismissal would have occurred in
activity. See Mattox v. City of Forest Park, 183 F.3d 515,
520-21 (6th Cir. 1999). If the plaintiff meets her burden, the
burden then shifts to the defendants to prove by a
preponderance of the evidence that the employment decision
would have been the same absent the protected conduct. See
Kreuzer v. Brown, 128 F.3d 359, 363 (6th Cir. 1997), cert.
denied, 118 S. Ct. 1802 (1998); see also Mt. Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).1
No. 98-6768 Sowards v. Loudon County,
Tennessee, et al.
19
1152, 1154 (6th Cir. 1996). Under the first step, we must
examine “whether plaintiff has shown a violation of a
constitutionally protected right.” Id. “If the answer is yes,
then the second step is to determine whether the right is so
‘clearly established’ that a ‘reasonable official would
understand that what he is doing violates that right.’” Id.
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
As discussed in Part II.A supra, Sowards has provided
sufficient evidence from which a reasonable juror could
conclude that Guider terminated her because of her
association with her husband in violation of her First
Amendment right of intimate association. In Adkins v. Board
of Education, 982 F.2d 952, 956 (6th Cir. 1993), we
determined that a high school secretary’s right of intimate
association, protecting her from being fired because of her
relationship with her husband, is a clearly established right in
this circuit. We cited to two Supreme Court decisions,
establishing the right in 1984 and 1987, and concluded it was
objectively reasonable to expect the public official to respect
that right in 1988. See Adkins, 982 F.2d at 956 (citing Board
of Directors of Rotary Int’l v. Rotary Club of Duarte, 481
U.S. 537 (1987); Roberts v. United States Jaycees, 468 U.S.
609 (1984)). Because Sowards’s right of intimate association
was clearly established by July 19, 1995, it was objectively
reasonable for Guider to understand that he was violating that
right when he terminated her. Therefore, he is not entitled to
a defense of qualified immunity on this claim.
With respect to Sowards’s political association claim, a
genuine issue of material fact exists as to whether Guider
violated this First Amendment right in terminating her
employment. The right of political association with a
particular campaign is a clearly established right. See Rutan
v. Republican Party of Illinois, 497 U.S. 62, 69 (1990).
Defendants argue, however, that the law governing which
public positions fall under the Elrod/Branti exception was not
so clearly established in 1995 for Guider to understand that he
was violating Sowards’s right of political association. We

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18 Sowards v. Loudon County,
Tennessee, et al.
No. 98-6768
inmates, taking precautions to ensure their safety, and
arranging communications between inmates and the public.
These duties essentially mirror the duties of a prison guard.
In Rutan v. Republican Party of Illinois, 497 U.S. 62, 79
(1990), the Supreme Court determined that political
considerations are not appropriate for employment decisions
regarding the position of a prison guard. Defendants argue
that LCSD jailers are not like prison guards because they
work in a small facility where each individual decision has
serious consequences, unlike a large prison facility with
several guards on duty and multiple levels of supervision.
This argument is not persuasive because, like a jailer, a prison
guard’s individual decisions and actions also could have
serious consequences for the inmates and the visiting public.
Therefore, based on the Rutan decision, it is not appropriate
to take political considerations into account for the position
of a jailer at the LCSD, and the Elrod/Branti exception is not
applicable in this case.
C. Qualified Immunity
Defendants also argue that Guider is entitled to qualified
immunity to the extent that he was sued in his individual
capacity. The district court determined that sufficient
evidence did not exist upon which to make a decision on this
defense. If a plaintiff states a claim under 42 U.S.C. § 1983,
then this court reviews de novo a district court’s decision
regarding qualified immunity. See Hall v. Tollett, 128 F.3d
418, 422 (6th Cir. 1997).
The doctrine of qualified immunity provides that
“government officials performing discretionary functions[]
generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). We have adopted a two-step test for determining
whether a government official is entitled to qualified
immunity. See Brennan v. Township of Northville, 78 F.3d
No. 98-6768 Sowards v. Loudon County,
Tennessee, et al.
7
any event for nondiscriminatory reasons”). When a later decision from
this court conflicts with its prior decisions, the earlier cases control. See
Brentwood Academy v. Tennessee Secondary Sch. Athletic Ass’n, 180
F.3d 758, 765 (6th Cir. 1999). Therefore, the Supreme Court’s Mt.
Healthy analysis, as applied by this circuit in Barrett and Ratliff, inter
alia, governs First Amendment retaliation claims in this circuit.
1. Protected Conduct
To prove the first element of retaliation, Sowards argues
that she was exercising her rights of both political and
intimate association protected by the First Amendment. The
right of political association is a well established right under
the First Amendment for “‘political belief and association
constitute the core of those activities protected by the First
Amendment.’” Rutan v. Republican Party of Illinois, 497
U.S. 62, 69 (1990) (quoting Elrod v. Burns, 427 U.S. 347,
356 (1976)). Support of a political candidate falls within the
scope of the right of political association. See Elrod, 427
U.S. at 356-57. Therefore, Sowards was exercising her
constitutionally protected right of political association by
supporting her husband’s campaign for the office of Sheriff
of Loudon County.
Sowards also claims that she was retaliated against because
of her exercise of her First Amendment right of intimate
association with her husband. In Roberts v. United States
Jaycees, 468 U.S. 609, 617-18 (1984), the Supreme Court
stated that one type of constitutionally protected freedom of
association is the right “to enter into and maintain certain
intimate human relationships [which] must be secured against
undue intrusion by the State because of the role of such
relationships in safeguarding the individual freedom that is
central to our constitutional scheme.” The Supreme Court
reasoned that the formation and preservation of certain types
of “highly personal relationships” is necessary to secure
individual liberty and suggested that marriage is such a
relationship that must be protected from unwarranted state
interference. See id. at 618-19. Although the Supreme Court

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8 Sowards v. Loudon County,
Tennessee, et al.
No. 98-6768
2We note that the Adkins decision merges the analysis of whether a
plaintiff was engaged in constitutionally protected conduct with the
analysis of whether an adverse action violated the plaintiff’s constitutional
rights, which have been separated into two steps in more recent decisions.
See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc);
Mattox v. City of Forest Park, 183 F.3d 515, 520-21 (6th Cir. 1999);
Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998). However, it is clear
that under the Adkins decision, the right of intimate association is
protected only where the plaintiff alleges an undue interference with a
protected intimate relationship.
did not explain whether this right stems from the freedom of
association under the First Amendment or the fundamental
right to marry under the Due Process Clause of the Fourteenth
Amendment, we have analyzed the right of intimate
association under the First Amendment. See Adkins v. Board
of Educ., 982 F.2d 952, 955-56 (6th Cir. 1993).
In Adkins, a high school secretary claimed that the
superintendent of the school board refused to recommend
continuing her employment in retaliation for her association
with her husband, who was the principal of the high school.
We concluded that the plaintiff secretary had made a prima
facie case of a constitutional violation because evidence
showed that her freedom to form “‘certain intimate human
relationships’” was implicated in the superintendent’s
decision not to recommend rehiring her. See 982 F.2d at 956
(quoting Roberts, 468 U.S. at 617). We explained, “it is not
necessary that the governmental act require the abandonment
or dissolution of a marriage relationship as the price for
retaining public employment. The right of association is
violated if the action constitutes an undue intrusion by the
state into the marriage relationship.” Id. (quotation omitted).2
Accordingly, Sowards has the right to associate intimately
with her husband, and her marriage relationship is protected
from undue intrusion by the state. Sowards claims that she
lost her job because of her protected marital relationship, and
that this constitutes undue intrusion by the state in that
relationship. See Adkins, 982 F.2d at 956.
No. 98-6768 Sowards v. Loudon County,
Tennessee, et al.
17
Cir. 1991) (holding that mayor’s secretary had access to
confidential and political material because she controlled the
lines of communication to the mayor)). Both Guider and
Bridges stated that Sowards did not have any access to any
confidential or political information. Therefore, category
three does not apply in this case.
Although none of the McCloud categories are applicable,
defendants also cite to several cases in other circuits that have
held upheld the use of political considerations for positions
allegedly similar to a jailer at the LCSD. The primary case
they rely on, however, is inapposite. In Jenkins v. Medford,
119 F.3d 1156, 1164 (4th Cir. 1997), cert. denied, 118 S. Ct.
881 (1998), the Fourth Circuit held that a sheriff could base
his decision to fire or hire deputy sheriffs on political
considerations. It reasoned that under North Carolina law the
deputy sheriffs “play a special role in implementing the
sheriff’s policies and goals” because they are sworn to carry
out law enforcement on behalf of the sheriff and make
independent decisions which may ultimately affect law
enforcement policies. Jenkins, 119 F.3d at 1162. In addition,
the sheriff relies on the deputies to foster public confidence in
law enforcement and is civilly liable for their actions. See id.
at 1162-63. Based on this evidence, the court concluded that
deputy sheriffs are the “alter ego” of the sheriff in North
Carolina. See id. at 1164. Defendants argue that, like the
deputy sheriffs in Jenkins, jailers at the LCSD in fact establish
policy with the individual decisions they make and the sheriff
is civilly liable for their actions. Although jailers have some
decisionmaking authority with respect to providing for the
needs and safety of the prisoners, they are supervised by and
must follow the directives of Guider and Bridges. They have
no role in the policymaking process of the prison. While
Guider is civilly liable for jailers’ actions, this is not sufficient
to characterize them as his “alter-ego.”
A jailer’s statutory duties under Tennessee law generally
involve providing for the needs and safety of the jail’s
inmates, such as providing food, bedding, and support for the

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16 Sowards v. Loudon County,
Tennessee, et al.
No. 98-6768
J.A. at 91. Guider admitted that Sowards’s position as a jailer
did not involve any policymaking for the day-to-day operation
of the prison facility and that she was not in a confidential
relationship with him regarding how to run the facility. Nor
did he believe that political loyalty was required for Sowards
to carry out her responsibilities. In addition, Bridges stated
that Sowards did not make policy for the jail or the sheriff’s
department and that she would carry out the duties and orders
that he or the sheriff would give to her. He also agreed that
this position did not require political loyalty to the sheriff.
Loudon County and Guider claim that the position of a
jailer could fall under McCloud category two or three. With
respect to category two, they assert that Guider and Bridges
delegated much of their discretionary authority regarding the
day-to-day operation of the jail to jailers. The position of a
jailer does not fall under McCloud category two, however,
because this category involves delegations of policymaking
authority. “Category two also exists to capture those who
would otherwise be category one policymakers, except that
the federal government, state, county, or municipality has
chosen for whatever reason not to set out the responsibilities
of such a position in a statute, ordinance, or regulation.”
McCloud, 97 F.3d at 1557 n.31. Both Guider and Bridges
admitted that jailers do not participate in any type of
policymaking for the prison and are simply required to follow
directives. Therefore, the position of a jailer does not fall
under McCloud category two.
In addition, defendants argue that a jailer falls under
category three because a jailer acts as a conduit for
communication between prisoners and the sheriff. The
McCloud category three position involves employees who
control the lines of communication to category one or
category two position-holders. See id. at 1557 n.32. This
category is concerned with this type of employee’s access to
confidential, political information transmitted to the
policymaker, which requires political loyalty. See id. (citing
Faughender v. City of North Olmsted, 927 F.2d 909, 914 (6th
No. 98-6768 Sowards v. Loudon County,
Tennessee, et al.
9
Defendants respond with several arguments. First, they
mistakenly assert that Sowards’s right to marry was not
violated because she is still married to her husband and that
she does not have a fundamental right to marry a specific
person. With respect to the First Amendment’s right of
intimate association, the state action need not cause
“abandonment or dissolution” of the marriage to constitute an
undue intrusion. See Adkins, 982 F.2d at 956. In addition,
defendants’ citations to cases involving the fundamental right
to marry under the Due Process Clause of the Fourteenth
Amendment are not applicable to Sowards’s right of intimate
association claim under the First Amendment. Defendants
also argue that Guider’s actions need only satisfy a rational
basis test. However, it is not necessary to engage in such an
analysis at the summary judgment stage if the plaintiff alleges
that she was terminated on the basis of a protected
relationship. See Montgomery v. Carr, 101 F.3d 1117, 1127-
28 (6th Cir. 1996). Sowards claims that Guider dismissed her
because of her protected relationship with her husband, which
could constitute an undue interference in that relationship
under Adkins. Therefore, we conclude that Sowards has met
her burden at this juncture of establishing that she was
engaged in the protected conduct of intimate association
under the First Amendment.
2. Adverse Action
Sowards then must prove that she suffered an adverse
action by Loudon County and Guider that caused her to suffer
an injury that would likely chill a person of ordinary firmness
from continuing to engage in her constitutionally protected
conduct. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th
Cir. 1999) (en banc). Sowards was dismissed from her
position as a jailer at the LCSD. A dismissal qualifies as an
adverse employment action for the purposes of a retaliation
claim. See id. at 396 (pointing to “discharge, demotions,
refusal to hire, nonrenewal of contracts, and failure to
promote” as examples of adverse actions in the employment
context).

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10 Sowards v. Loudon County,
Tennessee, et al.
No. 98-6768
3. Requisite Causal Connection
Finally, Sowards has the burden of proving that her
termination was substantially motivated by the exercise of her
constitutional rights. See Thaddeus-X v. Blatter, 175 F.3d
378, 394 (6th Cir. 1999) (en banc). Sowards worked as a
jailer at the LCSD for several years and never had any
problems until her husband announced that he was running
for the position of Loudon County Sheriff. She then noticed
an abrupt change in her work environment. She asserts that
her supervisors ostracized her, changed her day shift to a split
shift, disciplined her more harshly than her co-workers, told
her she was being watched by the sheriff’s office, and reduced
her overtime opportunities. On July 19, 1995, Guider
terminated Sowards from her position as a jailer allegedly in
response to an incident that occurred on June 28, 1995, in
which Sowards failed to serve an outstanding warrant for
burglary on a person who had been brought to jail on a DUI
charge. In Sowards’s dismissal letter, Guider explained that
he was following Chief Jailer Bridges’s recommendation to
terminate her employment because it was her responsibility to
check for outstanding warrants and because of the serious
nature of the burglary charge which had been outstanding for
over a year. In his deposition, Guider denied that he took into
account the fact that Sowards was married to William
Sowards when terminating her. However, when asked “[i]f
Wanda Sowards had been one of [his] staunchest supporters
in the last election would [he] have looked into the basis for
Sergeant Bridges’ recommendation of termination rather than
just more or less accepting it,” Guider replied, “I might have.”
J.A. at 140.
Sowards has presented sufficient evidence upon which a
reasonable juror could conclude that Guider’s decision to
terminate her employment was substantially motivated by her
protected First Amendment associational rights. Guider
admitted that he might have treated her termination case
differently if she had been one of his political supporters.
Although defendants respond that Guider also asserted that he
No. 98-6768 Sowards v. Loudon County,
Tennessee, et al.
15
others, and to admit persons having business with the
prisoner. See TENN . C ODE ANN . §§ 41-4-104, 41-4-105, 41-
4-106, 41-4-108, 41-4-109, 41-4-111, 41-4-114 (1997).
Defendants argue that these statutory duties require
discretion in the day-to-day operation of the jail and have
serious consequences with respect to the safety of the
prisoners and the public. Chief Jailer Bridges stated that “As
a jailer, Sowards was required to exercise her discretion and
judgment in determining whether the inmates needed medical
attention, whether any of the inmates was suicidal, and
whether any disruptions were likely to arise between the
inmates.” J.A. at 247 (Bridges Aff.). She also was
“responsible for exercising [her] discretion and judgment with
regard to the admission of visitors and any special requests or
requirements by the inmates or their relatives or agents . . . .
[and also] for dispensing medication, food, necessary living
supplies, and mail.” J.A. at 247. In addition, she was
responsible for “preventing contraband from entering or
exiting the facility and for making sure inmates remain secure
in the facility.” J.A. at 247. Bridges also stated that at certain
times only two jailers are on duty, without any direct
supervision at the jail facility, and that he relies on them to
carry out their duties to avoid any danger to the inmates or the
visiting public. Defendants argue that the position of a jailer
involves especially serious consequences because a jailer
could violate the civil rights of the prisoners and the visiting
public, and the sheriff is civilly liable for the acts of a jailer.
Therefore, they argue that a jailer’s actions could have serious
political and legal implications for the sheriff.
Sowards agrees that her responsibilities “included securing
the inmates located in the Loudon County jail, looking after
their safety, providing medications and other medical
necessities for their needs.” J.A. at 91. She asserts that her
position did not, however, “involve any managerial
responsibilities, any policy making or involvement in political
or policy decisionmaking. [She] simply followed orders and
directives” given by Chief Jailer Bridges and Sheriff Guider.

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14 Sowards v. Loudon County,
Tennessee, et al.
No. 98-6768
named in law, possessing by virtue of the jurisdiction’s
pattern or practice the same quantum or type of
discretionary authority commonly held by category one
positions in other jurisdictions;
Category Three: confidential advisors who spend a
significant portion of their time on the job advising
category one or category two position-holders on how to
exercise their statutory or delegated policymaking
authority, or other confidential employees who control
the lines of communications to category one positions,
category two positions or confidential advisors;
Category Four: positions that are part of a group of
positions filled by balancing out political party
representation, or that are filled by balancing out
selections made by different governmental agents or
bodies.
If a particular position falls into one of these categories,
then political affiliation is an appropriate consideration for
that position and a public employee may be dismissed without
violating the First Amendment. See Hall, 128 F.3d at 424. A
government position is not required, however, to fall neatly
within one of the categories to be entitled to the Elrod-Branti
exception. See Feeney, 164 F.3d at 318.
Under Tennessee law, “[t]he sheriff of the county . . . may
appoint a jailer, for whose acts the sheriff is civilly
responsible.” TENN . C ODE ANN . § 41-4-101 (1997). Jailers
are charged with the following responsibilities: to receive and
safely keep convicts on their way to the state or federal
penitentiary, to file and keep safe under the sheriff’s direction
the mittimus or process by which a prisoner is committed or
discharged from jail, to determine within their discretion what
type of precautions to take for guarding against escape and to
prevent the importation of drugs, to provide support, to
furnish adequate food and bedding, to enforce cleanliness in
the jails, to convey letters from prisoners to their counsel and
No. 98-6768 Sowards v. Loudon County,
Tennessee, et al.
11
3Like a warrant, a mittimus is a written order from a court or
magistrate “directed to the sheriff or other officer, commanding him to
convey to the prison the person named therein, and to the jailer,
commanding him to receive and safely keep such person until he shall be
delivered by due course of law.” BLACK’ S LAW D ICTIONARY 1002 (6th
ed. 1990).
did not take Sowards’s association with her husband or his
political campaign into account in deciding to terminate her
employment, Guider made conflicting statements regarding
his treatment of Sowards’s case. Thus, a genuine issue of
material fact exists regarding his true motivation for
terminating her employment.
Moreover, other evidence also supports Sowards’s claim
that Guider’s decision to terminate her was substantially
motivated by her protected conduct. Prior to her termination,
Sowards had never been disciplined for missing a warrant.
Guider admitted that Sowards had been a dependable
employee and had never been involved in any serious
disciplinary action. Bridges acknowledged that her job
performance over the years was a positive factor on her
behalf. However, Bridges stated that he decided to
recommend termination because the warrant Sowards missed
had been outstanding for a long time and involved a serious
crime. Even though Sowards explained that she had looked
for the wrong name, Bridges stated that she could have looked
up the records to find the correct name, and he did not treat
her mistake more leniently because a misunderstanding was
involved. Bridges also admitted that other LCSD officers had
missed mittimuses,3 but had never been fired for that
omission despite their obligation to check for both
outstanding warrants and mittimuses, which are located in the
same box. Because there is evidence that she was treated
differently than other officers who had made similar mistakes
and that she was terminated based on only one mistake,
Sowards has provided sufficient evidence that her association
with her husband substantially motivated Guider to terminate
her.

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12 Sowards v. Loudon County,
Tennessee, et al.
No. 98-6768
Defendants have not presented sufficient evidence that
Guider would have terminated Sowards on the basis of this
one mistake in the absence of her protected association. They
argue that Guider did not know that Sowards had supported
her husband in his political campaign for sheriff and thus
could not have made any decisions on this basis. See Hall v.
Tollett, 128 F.3d 418, 426-27 (6th Cir. 1997) (dismissing
plaintiffs’ political retaliation claims because of lack of
evidence that a newly elected sheriff had any knowledge of
which candidate plaintiffs had actually supported in the
election). Guider claims that Sowards told him she was
planning on supporting his candidacy rather than her
husband’s. Sowards denies making this statement.
Furthermore, Guider admitted “[b]ut in my mind, you know,
I felt confident that she would support her husband.” J.A. at
146. Unlike the sheriff in Hall, Guider actually spoke with
Sowards and “felt confident” that she would support her
husband’s campaign. Defendants also argue that Guider
could not have known of Sowards’s political affiliation
because Sowards admitted she was not politically active at
work and had not given money to any campaigns. A rational
juror could conclude, however, that Guider knew Sowards
had supported her husband on the basis of Guider’s
deposition statement describing his conversation with her and
his conclusion that she would support her husband.
Viewing the evidence in the light most favorable to
Sowards, we conclude that a genuine issue of material fact
exists whether Sowards’s termination was substantially
motivated by her protected associational freedoms.
Therefore, the district court erred in granting defendants’
motion for summary judgment.
B. Elrod/Branti Exception
Loudon County and Guider argue that even if Sowards is
able to show that she was fired because of her political
association with her husband, political affiliation is an
appropriate consideration for the employment or termination
No. 98-6768 Sowards v. Loudon County,
Tennessee, et al.
13
of a jailer. Whether political affiliation is an appropriate
consideration for a government position is a question of law.
See Mumford v. Basinski, 105 F.3d 264, 271 (6th Cir.), cert.
denied, 118 S. Ct. 298 (1997). The “issue on summary
judgment is whether Defendants have established that no
genuine factual issue exists as to whether political affiliation
may appropriately be considered with respect to the position
in question.” Feeney v. Shipley, 164 F.3d 311, 314 (6th Cir.
1999) (quotation omitted).
In Elrod v. Burns, 427 U.S. 347, 367 (1976), the Supreme
Court established the principle that certain public employees
in confidential and policymaking positions may be dismissed
on the basis of their political affiliation without violating the
First Amendment. The Supreme Court reaffirmed this
holding in Branti v. Finkel, 445 U.S. 507, 518 (1980), stating
that “the question is whether the hiring authority can
demonstrate that party affiliation is an appropriate
requirement for the effective performance of the public office
involved.” In this analysis, we “must look beyond the mere
job title and examine the actual duties of the specific
position.” Hall v. Tollett, 128 F.3d 418, 423 (6th Cir. 1997).
It is “the inherent duties of the position in question, not the
work actually performed by the person who happens to
occupy the office” that must be analyzed. Williams v. City of
River Rouge, 909 F.2d 151, 154 (6th Cir. 1990). In McCloud
v. Testa, 97 F.3d 1536, 1557 (6th Cir. 1996), we identified
four categories of positions which should fall under the Elrod-
Branti exception with reasonable certainty:
Category One: positions specifically named in relevant
federal, state, county, or municipal law to which
discretionary authority with respect to the enforcement of
that law or the carrying out of some other policy of
political concern is granted;
Category Two: positions to which a significant portion
of the total discretionary authority available to category
one position-holders has been delegated; or positions not

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