Montgomery, Martina v. Stefaniak, Thomas ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2666
MARTINA MONTGOMERY,
Plaintiff-Appellant,
v.
THOMAS P. STEFANIAK, JR.,
SALVADOR VASQUEZ, and
CLARENCE D. MURRAY,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:04-CV-49—Rudy Lozano, Judge.
____________
ARGUED MARCH 1, 2005—DECIDED JUNE 9, 2005
____________
Before KANNE, EVANS, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. Martina Montgomery was fired
from her job as a court probation officer after her supervisors
learned that she and her fiancé had purchased a car from
a dealership employing a probationer whom she supervised.
Montgomery sued, claiming among other things that her
termination infringed her right of intimate association with
her fiancé and that she was denied procedural and substan-
tive due process. The district court dismissed all of Montgom-
ery’s wrongful termination claims. She appeals, and we
affirm.
2 No. 04-2666
I. History
Montgomery sued a number of defendants, including the
car dealership, the court for which she worked, and the
county in which the court was located. But we can ignore
the majority of her complaint because this appeal addresses
only Montgomery’s claims against three judges on the court
where she was employed. We recite the facts as they are
provided in the complaint and present them in the light
most favorable to Montgomery. See Cole v. U.S. Capital,
Inc., 389 F.3d 719, 724 (7th Cir. 2004).
Montgomery accompanied her fiancé, Charles Heffner,
to Shaver Motors in Merrillville, Indiana. Heffner tried to
purchase a car, but his application for financing was denied
because he had a poor credit history. Montgomery, however,
had better credit than Heffner and the salesman told her
that he could arrange financing for her to purchase a Toyota
Corolla. Montgomery declined at first, but the salesman
ultimately persuaded her to purchase the car. Montgomery
and Shaver then signed a sales contract for the Toyota, and
the couple left with the car. After Montgomery left the
dealership, however, Shaver unilaterally changed the terms
of the financing agreement. Specifically, Shaver paid off a
balance Montgomery owed on a Mercury automobile she
already owned and added that money into the price of the
Toyota. Shaver claims it did so to improve the creditworthi-
ness of Montgomery’s application for financing, but Mont-
gomery says that she never agreed to such an arrangement
and that the salesman never told her that the Mercury loan
would have any impact on her application. Montgomery
learned of Shaver’s action several days later when the
finance company to which Shaver had sent her application
called to tell her both that the Mercury was now included in
the transaction and that it had approved her loan on
significantly less favorable terms than those promised by
Shaver.
No. 04-2666 3
Montgomery rejected the changes to the agreed-upon
financing terms and immediately returned the Toyota to
Shaver. But when she brought back the car, Shaver de-
manded that Montgomery reimburse the dealership the
money it had paid on the Mercury. When Montgomery
refused, claiming that she had never agreed to such an
arrangement, Shaver threatened to report her alleged delin-
quency to her supervisors at the probation office. Eventually
Shaver made good on its threat and called Montgomery’s
supervisor in an effort to harass Montgomery and pressure
her to pay.
Shaver’s call prompted the supervisor to investigate, and
he discovered that a probationer supervised by Montgomery
was employed at Shaver. The record does not reflect the
nature of the probationer’s employment, but he apparently
played no role in the sale of the Toyota. Nonetheless, the
court has a code of conduct that forbids probation officers
from transacting business with any company employing
probationers under their supervision. Thomas Stefaniak,
Jr., Senior Judge of the Criminal Division of the Lake
County Superior Court, who ultimately is responsible for
probation department personnel, ordered Montgomery sus-
pended and eventually fired for violating this policy. As
permitted by the court’s employee grievance system,
Montgomery requested administrative hearings to appeal
both her suspension and termination. Judge Stefaniak as-
signed Judge Salvador Vasquez to hear the appeals, and
Judge Vasquez upheld Judge Stefaniak’s decisions.1
Montgomery raised three claims against the judges. First,
she claims that they interfered with her right of intimate
association with her fiancé because she says she had a
1
Montgomery’s complaint in the district court also lists Judge
Clarence Murray as a defendant but neither her complaint nor her
brief on appeal makes any further mention of him. Accordingly, all
claims against Judge Murray are waived.
4 No. 04-2666
constitutional right to purchase a car for him from Shaver.
Montgomery also alleged that the judges denied her sub-
stantive and procedural due process by not providing her a
pre-termination hearing. The district court dismissed the
judges as defendants, see FED. R. CIV. P. 12(b)(6), and made
its dismissals final, thus permitting this appeal, see Greenwell
v. Aztar Ind. Gaming Corp., 268 F.3d 486, 490 (7th Cir. 2001);
FED. R. CIV. P. 54(b).
II. Analysis
A. Freedom of Intimate Association
Montgomery first argues that the judges’ enforcement of
the code of conduct interfered with what she describes as
her freedom of intimate association with her fiancé. The
defendants respond that Montomery’s relationship with
Heffner did not excuse her from complying with the rules
governing her employment.
The Supreme Court has explained that the Constitution
protects two distinct forms of free association. The first,
freedom of expressive association, arises from the First
Amendment and ensures the right to associate for the
purpose of engaging in activities protected by the First
Amendment. See Roberts v. United States Jaycees, 468 U.S.
609, 617-18 (1984); Klug v. Chicago Sch. Reform Bd. of
Trustees, 197 F.3d 853, 857 (7th Cir. 1999). The second, free-
dom of intimate association, protects the right “to enter into
and maintain certain intimate human relationships.”
Roberts, 468 U.S. at 617. The freedom of intimate associa-
tion “receives protection as a fundamental element of per-
sonal liberty,” id. at 618, and as such is protected by the
due process clauses. See Swank v. Smart, 898 F.2d 1247,
1251-52 (7th Cir. 1990); Mayo v. Lane, 867 F.2d 374, 375
(7th Cir. 1989); Bergren v. City of Milwaukee, 811 F.2d
1139, 1144 (7th Cir. 1987); Shondel v. McDermott, 775 F.2d
No. 04-2666 5
859, 865-66 (7th Cir. 1985); Akers v. McGinnis, 352 F.3d
1030, 1035 (6th Cir. 2003); Griffin v. Strong, 983 F.2d 1544,
1547 (10th Cir. 1993).
We pause to note that the parties have confused the two
forms of free association in their briefs and focus their argu-
ments exclusively on the balancing test applicable to
expressive association claims raised by public employees.
See Connick v. Myers, 461 U.S. 138 (1983); Pickering v.
Board of Education, 391 U.S. 563 (1968). Under this test, a
plaintiff must first show that her associational activity
relates to a matter of public concern; if she succeeds, the
court then balances her interests against those of her em-
ployer. See Klug, 197 F.3d at 857. But the Connick/
Pickering test applies only to those free association claims
based on expressive association. See id.; Weicherding v.
Riegel, 160 F.3d 1139, 1142 (7th Cir. 1998); Messman v.
Helmke, 133 F.3d 1042, 1045-46 (7th Cir. 1998); Balton v.
City of Milwaukee, 133 F.3d 1036, 1039-40 (7th Cir. 1998);
Gregorich v. Lund, 54 F.3d 410, 414 (7th Cir. 1995); Griffin
v. Thomas, 929 F.2d 1210, 1212-14 (7th Cir. 1991). The
Connick/Pickering test’s requirement that the plaintiff’s
association relate to a matter of public concern is inapplica-
ble to a claim based solely on intimate association because
a plaintiff’s right of intimate association does not depend on
her also exercising her separate and distinct right to engage
in expressive activity. See Anderson v. City of LaVergne, 371
F.3d 879, 881 (6th Cir. 2004); Parks v. City of Warner
Robins, 43 F.3d 609, 615 (11th Cir. 1995).
The proper analysis for Montgomery’s claim is provided
by Zablocki v. Redhail, 434 U.S. 374, 383-87 (1978), and
other circuits have used this framework to address claims
brought by public employees claiming interference with an
intimate association. See Akers, 352 F.3d at 1039-40 (cor-
rections employees fired for personal relationships with pris-
oners); Singleton v. Cecil, 176 F.3d 419, 423 (8th Cir. 1999)
(en banc) (adopting analysis of panel decision in Singleton
6 No. 04-2666
v. Cecil, 133 F.3d 631, 634-35 (8th Cir. 1998)); Montgomery
v. Carr, 101 F.3d 1117, 1124 (6th Cir. 1996) (public school
teacher required to transfer to another school after she
married another teacher); Parks, 43 F.3d at 615-16 (police
officer forced to resign after she married a more senior
officer); see also Keeney v. Heath, 57 F.3d 579, 580-81 (7th
Cir. 1995). Zablocki establishes a two-part inquiry: if the
challenged policy imposes a direct and substantial burden on
an intimate relationship, it is subject to strict scrutiny; if the
policy does not impose a direct and substantial burden, it is
subject only to rational basis review. Zablocki, 434 U.S. at
383-87; see also Smith v. Shalala, 5 F.3d 235, 238-39 (7th
Cir. 1993).
Montgomery’s claim fails the Zablocki test. The defendants
do not dispute that the relationship between two people
engaged to be married qualifies as intimate, and we will
assume that to be the case. But the defendants here did not
“interfere directly and substantially” with Montgomery’s
right to associate with Heffner when they fired her for vio-
lating the code of conduct. Compare Zablocki, 434 U.S. at
387 (statute requiring persons owing child support to obtain
a court order before marrying or face criminal penalties
directly and substantially interfered with their right to
marry), with Akers, 352 F.3d at 1040 (rule restricting
correctional officers from non-work contact with prisoners
was not direct and substantial burden because rule neither
largely prevented employees from marrying nor prevented
them from marrying a large portion of population). Indeed,
the interference here was quite minimal. Montgomery
alleged only that the code of conduct prohibited her from
purchasing a car from Shaver. But she was free to purchase
a car for her fiancé from any car dealership that did not
employ one of her probationers and likewise remained free
to associate with Heffner in any other way she pleased. The
court’s rule prohibiting probation officers from conducting
business with companies employing their probationers may
No. 04-2666 7
have caused Montgomery some minor inconvenience, but it
did not substantially impact her ability to associate with
Heffner.
We thus review the code of conduct only under a rational
basis test and conclude that the portion of code challenged
by Montgomery bears a rational relationship to a legitimate
government interest. See Thielman v. Leean, 282 F.3d 478,
485 (7th Cir. 2002). The Sixth Circuit addressed a similar
case in which two state correctional employees were fired
for violating a rule barring any outside contact with
prisoners or probationers. See Akers, 352 F.3d at 1033-34.
The court concluded that the rule met the rational basis test
because the state has a legitimate interest in preventing
fraternization between its prisoners and correctional
employees. Id. at 1039. The judges here likewise have a
legitimate interest in ensuring that probation officers con-
duct themselves in a manner that avoids even the appear-
ance of impropriety. Probation officers have significant
discretion when making sentencing recommendations and
supervising probationers, and their decisions can greatly
impact the liberty of convicted individuals. The code of
conduct at issue here is rationally related to the court’s
interest in ensuring the impartiality of its probation
officers. Accordingly, the district court correctly dismissed
Montgomery’s freedom of association claim.
B. Procedural Due Process
Montgomery next argues that the district court erred in
dismissing her procedural due process claim because she
says the court’s personnel policy affords probation officers
the right to a pre-termination hearing and argues that this
purported policy created a property interest in her contin-
ued employment. But Indiana law provides that probation
officers serve “at the pleasure of the appointing court.” Ind.
Code § 11-13-1-1(c); see also Ind. Code § 33-33-45-12(a)(2)
8 No. 04-2666
(Lake County probation officers “serve at the pleasure of the
senior judge”); In re Madison County Probation Officers’
Salaries, 682 N.E.2d 498, 500 (Ind. 1997) (per curiam).
These statutes establish that Montgomery was an at-will
employee who had no property interest in continued em-
ployment as a probation officer. See Moulton v. Vigo County,
150 F.3d 801, 804-05 (7th Cir. 1998). Despite the statutory
language, Montgomery might still have established that she
had a property interest in her job if she had shown that her
employer adopted additional rules or regulations that gave
her such a property interest. See id. at 805. Instead, she
alleged only that the court’s personnel policy provided her
with the right to a pre-termination hearing. “The mere fact
that an employee is entitled to a hearing before [s]he is
terminated, however, does not establish that [s]he has a
property right in [her] job.” Id. Accordingly, the district
court properly dismissed this claim.
C. Substantive Due Process
Lastly, Montgomery argues in a cursory fashion that the
district court erred by dismissing her substantive due pro-
cess claim. The scope of substantive due process, however,
is very limited and protects plaintiffs only against arbitrary
government action that “shocks the conscience.” Tun v.
Whitticker, 398 F.3d 899, 902 (7th Cir. 2005) (internal cita-
tion and quotation omitted). Nothing about the defendants’
actions here shocks the conscience. As discussed above,
Montgomery had no property interest in her continued
employment and the judges thus did not deprive her of
a constitutionally protected right when she was fired.
Furthermore, all that Montgomery claims the judges did
was wrongfully terminate her employment, and this is in-
sufficient to state a substantive due process claim unless
she also shows that the defendants violated some other
constitutional right or that available state remedies are
No. 04-2666 9
inadequate. Wudtke v. Davel, 128 F.3d 1057, 1062 (7th Cir.
1997). She has not done so.
III. Conclusion
The district court correctly dismissed all of Montgomery’s
claims against the three judges. Accordingly, the judgment
is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-9-05