The opinion of the court was delivered by: Leon Jordan United States District Judge
This civil action is before the court on the motion of defendant Charles Laxton, sued in his individual capacity, for summary judgment or for judgment on the pleadings [doc. 97]. The plaintiff has responded [doc. 107], and pursuant to the court's order, the plaintiff filed a supplemental brief on the issue of qualified immunity [doc. 136]. The defendant has filed two reply briefs [docs. 111 and 138]. Oral argument on the motion has been heard, and the motion is ripe for the court's consideration. For the reasons stated below, the defendant's motion for summary judgment will be granted.*fn1
In her complaint, the plaintiff alleges that defendant Laxton, after he was promoted to Captain of the Tennessee Highway Patrol, began to "harass, retaliate and other wise discriminate against those employees" who had not supported the Democratic candidate for governor of Tennessee. The plaintiff claims that she was one of those employees. The plaintiff says that Laxton unjustly harassed her about her job performance, took away tasks, responsibilities, and supervisory authority, and used other employees to carry out his harassment. The plaintiff further claims that Laxton ordered and conducted "bogus" internal affairs investigations concerning the plaintiff, and finally ordered her to submit to a "fitness-for-duty" evaluation, the end result of which was the termination of her employment with the Tennessee Highway Patrol. She raises three causes of action pursuant to 42 U.S.C. §§ 1983 and 1985: (1) retaliation for exercising her First Amendment speech rights; (2) violations of her First Amendment rights of political association; and (3) violations of her Fifth and Fourteenth Amendment procedural and substantive due process rights.*fn2 She seeks compensatory and punitive damages as well as attorney's fees.
The plaintiff began working at the Tennessee Highway Patrol ("THP") in the Knoxville, Tennessee office in about 1976. She rose through the ranks until she reached the position of Communications Dispatch Supervisor. For most of the years until the incidents related to this lawsuit, she routinely received an "exceptional" ranking on her employee evaluations.
In February 2003, following the election of Bredesen, the Democratic candidate for governor, defendant Laxton was promoted from sergeant to captain, skipping over the rank of lieutenant. The plaintiff alleges in her complaint that Laxton was promoted because he supported the election of Governor Bredesen. She also states in her response to the defendant's motion that "Laxton was a Democrat and had contributed heavily to Governor Bredesen's 2002 election." Throughout the plaintiff's deposition she claims that "everybody knows what everybody is" when asked about co-workers' political affiliations. As far as the court can tell, there is no proof in the record, by way of sworn testimony or admissible documents, that supports her statements about Laxton's political affiliation. For purposes of this motion, however, the court will assume that Laxton is a Democrat and that the plaintiff could prove it at trial.
Laxton was in charge of the Knoxville office of the THP. The plaintiff's immediate supervisor was defendant Lieutenant Larry French.*fn3 The plaintiff says that after Laxton was promoted she and other employees were called into his office. During her visit, she says that Laxton told her that she had been allowed to "run wild" and it was "coming to a stop." The plaintiff also stated in her deposition that Laxton told her on several occasions that "they wanted their people" in supervisory positions. She took that to mean Democrats. She also said that Laxton let her know that she was not on the "right side."
The only evidence in the record concerning the plaintiff's party affiliation and Laxton's knowledge of it comes from the plaintiff's deposition and Laxton's affidavit. When asked at her deposition, the plaintiff denied being a registered member of the Republican party but admitted that she usually voted for the Republican candidate. As to the governor's race, she stated that she had bumper stickers on her car, presumably for Republican candidates, but there was a policy that the employees had to park at the motel next door if they had political bumper stickers on their cars. When asked about Laxton's knowledge of her political affiliation, she stated that he knew because "everybody knew what everybody was," and when some co-workers were teasing her about the bumper sticker, Laxton did not laugh. Laxton stated in his affidavit that he did not know and did not make any employment decisions based on the plaintiff's political affiliation.
Interestingly, when the plaintiff was asked about the political affiliations of co-workers, she denied knowing that information and stated that she "never paid attention to things like that" and that she had "never been a political person." Nevertheless, it was her opinion that the THP was a political organization and she stated that politics got her the job and promotions, but then admitted that she was hired under a Democratic governor and received promotions when Democrats were in office.
In October 2003, a co-worker, Lt. Farmer, was being investigated by defendant Colonel Rucker of internal affairs.*fn4 She said that when she tried to speak up for Lt. Farmer, she was told to distance herself from Farmer and to worry about her own problems, not Farmer's.
Lt. French prepared an evaluation of the plaintiff's performance in April 2003, a few months after Laxton was promoted. She received "exceptional" rankings in all areas except her supervisory duties. There, she received only a "good" which is two levels below exceptional. Lt. French explained this ranking: "Ms. Hazelwood has had a medical condition that prevents her from her ability as a (5) exceptional. Due to the medical problem her supervisory duty has been hampered because she has had to miss work." By memorandum dated November 11, 2003, the plaintiff received a written warning concerning her absences. Lt. French stated in the memorandum that she had taken 110 sick days during the previous twelve months. She was told that she would only be allowed to work her assigned shift and that she had to have a doctor's statement for all future sick leave. She was also advised of her appeal rights, but she did not appeal the findings in the memorandum.
The plaintiff's sick leave absences continued. She was next evaluated on July 6, 2004. Her ranking was "marginal" at that time. Lt. French summarized his evaluation as follows:
Supervisor Hazelwood has met all the requirements set forth in her job responsibility. During this rating period Supervisor Hazelwood has worked approximately 55% of the year. Of approximately 262 work days she has worked only 144 complete days. Although these problems are not in her control, these problems keep her from performing her job responsibilities in a normal manner. Job responsibilities are not performed or are late due to these absences. Employee evaluations are not on time. Investigations are not completed in a timely manner. Meetings which require her attendance are sometimes not attended. . . . This evaluation is based on her performing her job responsibilities as a supervisor of several other employees who depend on her performance. I have assumed these job responsibilities in her absence. This Annual Evaluation was not conducted on the due date because I have not had the opportunity to conduct it with her due to her absences. I recommend that she receive all raises due to her as a state employee.
The plaintiff disagreed with the evaluation and wrote that additional responsibilities of her job resulted in her illness over the years. She then wrote that when she and Laxton first met to discuss her evaluation, she had a panic attack. When Lt. French met with her about a month later, she wrote that she "became sicker again." She stated that her extended illness was a "direct result of job ...