Nicole Bogart v. Vermilion County, Illinois

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1719
NICOLE BOGART ,
Plaintiff-Appellant,
v.
VERMILION C OUNTY, ILLINOIS, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:16-cv-01088 — Colin S. Bruce, Judge.
____________________
A RGUED OCTOBER 26, 2018 — D ECIDED N OVEMBER 26, 2018
____________________
Before WOOD, Chief Judge, and S YKES and S CUDDER , Circuit
Judges.
S CUDDER , Circuit Judge. Nicole Bogart, a Democrat,
worked as the Financial Resources Director of Vermilion
County, Illinois, but her tenure ended when Michael Marron,
a Republican, assumed control of the County Board and fired
her. She responded by bringing claims under the First
Amendment and Equal Protection Clause, alleging that
Vermilion County and Marron violated her right of political

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2 No. 18-1719
affiliation and engaged in political retaliation. The district
court dismissed the equal protection claim as duplicative of
the First Amendment claim, and, after finding that the
substantial fiscal and budgetary responsibilities of Bogart’s
position fit within the Elrod-Branti exception to political
patronage dismissals, granted summary judgment for the
defendants on her First Amendment claim. We affirm.
I
In July 2007 Vermilion County hired Bogart as its Financial
Resources Director. Bogart, herself a Democrat, replaced the
prior Financial Resources Director who had ties to the
Republican Party and was fired shortly after a Democrat
ousted the then-Republican Board Chairman in 2006.
At the time it hired Bogart, the County had in place a writ-
ten description of responsibilities of the Financial Resources
Director. The description explained that the Director
“[r]eports to and performs work at the direction of the County
Board Chairman and assists the Finance Committee in their
meetings and ensures that information about the County’s fi-
nances is available to board members,” “[d]evelops both long
and short-range financial plans involving revenue and ex-
penditure projects,” “[c]onducts budget preparation, review,
and control,” and “[e]xercises on-going budget analysis by
tracking expenditures and reviewing requests for line item
transfers.” In her deposition testimony, Bogart confirmed that
she performed many of the responsibilities delineated in the
written job description.
In 2012 several Republican candidates won election to the
County Board, giving Republicans majority control and thus
the power to select the Chairman for the first time during

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No. 18-1719 3
Bogart’s tenure. The newly-selected Republican Chairman,
Gary Weinard, served from 2012 to 2014. At the outset of his
tenure, Weinard asked Bogart to prepare a description of her
responsibilities as the Financial Resources Director. Several of
the responsibilities she listed in her written response mirrored
those in the County’s formal job description. For example,
Bogart wrote that she “[c]onducts budget preparation, review
and control,” “[p]repares the fiscal year budget for public
review and adoption,” “[c]reates 23 of the County’s 109
budgets and monitors them monthly,” “[a]nalyzes all 109
budgets and communicates concerns, changes and historical
data to Chairman of the Board, Chairman of the Finance
Committee and Auditor,” and “[s]crutinizes expenditures,
[and] continually seeks out savings and revenue
opportunities.”
According to Bogart, several Republican Board members
urged Weinard to fire her because she was a Democrat.
Weinard never did so. In December 2014, however, Weinard
resigned and Michael Marron, a Republican, became
Chairman. Within a month, Marron fired Bogart.
Bogart responded by bringing suit under 42 U.S.C. § 1983
against Marron and Vermilion County. She alleged that de-
fendants’ firing her constituted political retaliation and dis-
crimination in violation of the First Amendment and Equal
Protection Clause.
The district court dismissed Bogart’s equal protection
claim as duplicative of her First Amendment claim. At the
close of discovery, the district court then granted Vermilion
County and Marron’s motion for summary judgment on
Bogart’s First Amendment claim, reasoning that her job as the
County’s Financial Resources Director entailed substantial

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4 No. 18-1719
policymaking authority and discretion and thus fit within the
exception to the First Amendment’s general ban on political
patronage dismissals. Bogart now appeals those
determinations.
II
A
In two companion cases, the Supreme Court held that,
while public employers cannot condition employment on an
individual’s political affiliation, an employee’s First
Amendment right of political association leaves room for
employers to dismiss employees in positions where political
loyalty is a valid job qualification. See Elrod v. Burns, 427 U.S.
347, 372 (1976); Branti v. Finkel, 445 U.S. 507, 516 (1980). And
so emerged the so-called Elrod-Branti exception to political
patronage dismissals. The Federal Reporter contains many
illustrations of how this exception applies (or not) to
particular dismissals. See, e.g., Embry v. City of Calumet City,
701 F.3d 231 (7th Cir. 2012); Allen v. Martin, 460 F.3d 939 (7th
Cir. 2006); Riley v. Blagojevich, 425 F.3d 357 (7th Cir. 2005);
Garcia v. Kankakee Cnty. Housing Authority, 279 F.3d 532 (7th
Cir. 2002); Tomczak v. City of Chicago, 765 F.2d 633 (7th Cir.
1985). This precedent supplies the controlling framework
here.
The overarching inquiry under the Elrod-Branti exception
is whether the public employer can show that “party affilia-
tion is an appropriate requirement for the effective perfor-
mance of the public office involved.” Branti, 445 U.S. at 518;
see also Elrod, 427 U.S. at 367 (explaining that patronage dis-
missals may help ensure “that representative government not
be undercut by tactics obstructing the implementation of

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No. 18-1719 5
policies of the new administration, polices presumably sanc-
tioned by the electorate”). “[T]his could be either because the
job involves the making of policy and thus the exercise of po-
litical judgment or the provision of political advice to the
elected superior, or because it is a job (such as speechwriting)
that gives the holder access to his political superiors’ confi-
dential, politically sensitive thoughts.” Riley, 425 F.3d at 359
(citing Elrod, 427 U.S. at 367–68 and Branti, 445 U.S. at 518).
Our focus, then, is on whether the job in question entails
substantial policymaking responsibility, meaningful discre-
tion to implement the policy goals of elected officials, or a
need to maintain the confidentiality essential to enabling ro-
bust deliberations entailing disagreement and incorporating
political objectives. See Allen, 460 F.3d at 944; Embry, 701 F.3d
at 235–36.
Determining whether a particular job fits within the Elrod-
Branti exception can lead to “excessive litigation in the turno-
ver between opposing political administrations,” and further,
may encourage “incumbent public employees [to] protect[ ]
their jobs by simply neglecting particular responsibilities.”
Allen, 460 F.3d at 944 (citing Riley, 425 F.3d at 361). To mitigate
these risks, we “focus on the inherent powers of the office as
presented in the official job description,” while also looking at
“how the description was created and when, and how often,
it was updated.” Id.
Indeed, unless the plaintiff demonstrates that the job de-
scription bears “some systematic unreliability” or “has been
manipulated in some manner by officials looking to expand
their political power,” our examination begins and ends there.
Id. This approach enables incoming political leaders to deter-
mine, without the need for a protracted inquiry, which jobs

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6 No. 18-1719
they may validly treat as partisan positions. See Riley, 425 F.3d
at 360–61; see also Tomczak, 765 F.2d at 641 (endorsing the
same approach on the basis of efficiency and predictability).
B
These principles find straightforward application on the
record before us. The district court rightly concluded that
Bogart’s job description—both the formal one in effect when
she took the job in 2007 and the updated one she prepared in
2012—reliably described her responsibilities as Financial
Resources Director. Bogart, too, confirmed as much during
her deposition testimony, agreeing that the job description in
place in 2007 accurately captured many of her key
responsibilities, including reporting directly to the County
Chairman, helping to keep Board members informed about
the County’s finances, developing long- and short-range
financial plans for the County, and assisting with the
preparation and review of the County’s annual budget. At no
point in her testimony did Bogart contend that either the 2007
or 2012 job descriptions were meaningfully inaccurate or
incomplete.
Bogart held a senior position requiring the trust and con-
fidence of the elected Board members, including the County
Chairman, and entailing substantial policymaking authority.
Budgeting decisions often are to municipal government what
matters of foreign policy are at the national level. What pro-
jects and programs receive funding and in what amounts,
what revenue needs will be in future years, and how best to
manage unexpected financial contingencies are important
matters having a substantial effect on the quality of life in lo-
cal communities. Board candidates run on how they plan to
address such matters, and, once elected, municipal leaders

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No. 18-1719 7
need skilled and trusted confidants to help make and imple-
ment these difficult fiscal decisions.
Bogart’s position as Financial Resources Director was such
a position. It was effectively a cabinet-level position in
Vermilion County. No more is required to fit within the Elrod-
Branti exception. See Allen, 460 F.3d at 941 (explaining that the
Elrod-Branti exception applied to a position responsible for
“planning, organizing, and directing accounting activities
department-wide, establishing fiscal control procedures,
administering all business services and keeping management
informed of potential problems in expenditures or fiscal
agreements”); see also Nader v. Blair, 549 F.3d 953, 960 (4th Cir.
2008) (explaining that the Elrod-Branti exception applied to a
position responsible for preparation and oversight of the
county budget because “such decisions may be quite personal
and contentious”). On this record, the district court properly
concluded that Vermilion County could terminate Bogart
without offending the First Amendment.
C
Alongside her First Amendment claim, Bogart advanced a
separate claim under the Equal Protection Clause, which the
district court dismissed as duplicative. The district court may
have painted with too broad a brush, for we are not prepared
to hold that any and all allegations of discrimination on the
basis of political affiliation would fail to state a claim under
the Equal Protection Clause.
But this case does not require us to define the full param-
eters or potential application of the Equal Protection Clause
to claims of political discrimination. What the district court
faced here was an equal protection claim that exactly

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8 No. 18-1719
mirrored Bogart’s First Amendment claim. So even if the dis-
trict court erred in dismissing Bogart’s equal protection claim,
there was no error in its more general observation that the
claim must fail because the same considerations and evidence
that defeat her First Amendment claim cause the same claim
repackaged under the Equal Protection Clause to fail. See
Muscarello v. Ogle Cnty. Bd. of Comm’rs, 610 F.3d 416, 422–23
(7th Cir. 2010) (endorsing the same reasoning in the context
of parallel takings and equal protection claims). We cannot
identify any good reason, at least on the facts presented here,
to employ different standards under the First Amendment
than the Equal Protection Clause in evaluating a challenge to
a political patronage dismissal.
Finally, Bogart contends the district court should have ex-
tended her leave to amend her equal protection claim. To the
extent this argument was not waived, the district court did not
abuse its discretion when it did not permit her to replead this
claim.
For these reasons, we AFFIRM.

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