228 F.3d 872 (8th Cir. 2000), 99-3911, Belk v. City of Eldon

Docket Nº:99-3911
Citation:228 F.3d 872
Case Date:October 02, 2000
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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228 F.3d 872 (8th Cir. 2000)




No. 99-3911

United States Court of Appeals, Eighth Circuit

October 2, 2000

Submitted: June 16, 2000

Appeal from the United States District Court for the Western District of Missouri.

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Before Wollman, Chief Judge, Beam, and Bye, Circuit Judges.

Wollman, Chief Judge.

Laverne Belk, formerly an employee of the city of Eldon, Missouri, filed suit against the city and Scott Harrison, Steve Wood, Brad Veach, and Ron Bly, four members of its Board of Aldermen, in their individual capacities (collectively, the defendants), claiming that her discharge was in retaliation for the exercise of her First Amendment rights. The district court 1 entered judgment on the jury's verdict for the plaintiff and awarded damages, including front pay. The defendants appeal, contending that the district court should have granted their motions for judgment as a matter of law or, in the alternative, for a new trial, because Belk's speech was not protected and because the aldermen were entitled to qualified immunity. We affirm.


Because the defendants appeal the district court's denial of their Rule 50(b) motion for judgment as a matter of law, we take all facts in the light most favorable to Belk. Belk was a long-time employee of the city of Eldon. In 1996, she held two positions with the city. She had held her annual appointment by the board as the city clerk since 1982. She was also, as an at-will employee, the assistant to the city administrator, James Link. In these positions, she performed a number of administrative, clerical, and supervisory duties, and reported directly to Link, who was employed by the city on a contractual basis.

By all accounts, Belk and Link worked together without incident until Debra Carpenter was hired by the city in 1995. Tensions arose between Carpenter and other city employees under Belk's supervision, and rumors began to circulate that Carpenter and Link were having an extramarital affair. In the course of her work, Belk saw a bill for health insurance that she

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believed showed that Carpenter was receiving benefits inappropriate to her employment status. Belk sent a memo to Link expressing her concerns, but was rebuffed.

In October of 1995, Belk spoke privately with Harold Dolby, then one of the members of the Eldon Board of Aldermen. She told him (1) that rumors were circulating about Link and Carpenter, and (2) that she believed Carpenter was receiving benefits to which she was not entitled. In November of 1995, Link, acting with the acquiescence of the board, fired Belk from the position of assistant city administrator.

Until her conversation with Dolby, Belk had consistently received favorable job performance reports. Faced with the same turmoil in the city administration that led to Belk's termination, the board hired an attorney to act as an independent investigator to evaluate the rumors about Link and Carpenter and the rift in the city's administrative staff and to recommend a solution. The investigator recommended that both Belk and Link be terminated.

In April of 1996, at the end of Belk's term as city clerk, the board followed Link's recommendation and appointed Betty Rayhart as the new city clerk. In order to achieve a unanimous vote on Rayhart's appointment, the Board also voted not to renew Link's contract, effectively converting him to an at-will employee upon the expiration of the contract.

Belk filed suit in district court, alleging that the board discharged her in retaliation for the exercise of her First Amendment rights in speaking with Dolby and that she had been discriminated against on the basis of sex. The jury found for the defendants on the sex discrimination claim, but found for Belk on her retaliatory discharge claim.

II. First Amendment Claims

The defendants argue that the district court erred in denying their motions for post-verdict judgment as a matter of law under Federal Rule of Civil Procedure 50(b) or, in the alternative, for a new trial under Rule 59(a). They base their arguments on three alternative contentions: (1) that Belk's speech 2 is not protected by the First Amendment because it did not address a matter of public concern; (2) that, even if it did address a matter of public concern, under the Pickering balancing test her speech is not protected because Belk's interests in her First Amendment rights were outweighed by the public interest in the smooth functioning of the city administration; and (3) that, even if Belk was improperly terminated, the members of the board were entitled to qualified immunity. 3 We reject all three contentions.

We review a district court's denial of a judgment as a matter of law de novo, applying the same standard as that employed by the district court. See Manning v. Metropolitan Life Ins. Co., 127 F.3d 686, 689 (8th Cir. 1997). We resolve all doubts in favor of the non-moving party and give that party the benefit of all reasonable inferences. See Brown v. United Missouri Bank, 78 F.3d 382, 387 (8th Cir. 1996). "Judgment as a matter of law is appropriate only when all of the evidence points one way and is 'susceptible of no reasonable inference sustaining the position

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of the nonmoving party.'" McKnight v. Johnson Controls, 36 F.3d 1396, 1400 (8th Cir. 1994) (quoting White v. Pence, 961 F.2d 776, 779 (8th Cir. 1992)). Post-verdict judgment as a matter of law is appropriate only where the evidence is entirely insufficient to support the verdict. See Greaser v. State Dep't of Corrections, 145 F.3d 979, 984 (8th Cir. 1998).

The denial of motion for a new trial under Fed. R. Civ. P. 59(a) is reviewed with great deference to the district court's ruling and will not be reversed in the absence of a clear abuse of discretion. See McKnight, 36 F.3d at 1400. "The key question is whether a new trial should have been granted to avoid a miscarriage of justice." Id.

Whether the First Amendment shields a public employee from discharge as a result of her speech requires a two-step judicial inquiry. See Shands v. City of Kennett, 993 F.2d 1337, 1341 (8th Cir. 1993). First, we determine whether the employee's speech can be "fairly characterized as constituting speech on a matter of public concern." Connick v. Meyers, 461 U.S. 138, 146 (1983); Shands, 993 F.2d at 1342. Second, if the speech addresses a matter of public concern, we balance the "interests of the [employee], as a citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Educ., 391 U.S. 563, 568 (1968); Shands, 993 F.2d at 1342. Both inquiries are questions of law for the court to decide. See Connick, 461 U.S. at 148 n.7, 150 n.10; Shands, 993 F.2d at 1342. Any underlying factual disputes, however, are properly submitted to the jury through special interrogatories or special verdict forms. See Shands, 993 F.2d at 1342.

A. The Connick Analysis

Belk's comments are not entitled to First Amendment protection unless they addressed matters of public concern. See Connick, 461 U.S. at 146. Matters of public concern include matters of political, social, and other concern to the community. See id. at 147-48. In evaluating speech under the Connick framework, we examine the content, form, and context of the speech as revealed by the entire record. See id.; Shands, 993 F.2d at 1343. The defendants argue that Belk's statements to Dolby did not address matters of public concern because (1) Belk's statements were not made in a public setting, (2) Belk herself was motivated by a desire to spread gossip and animosity toward Link, and (3) her statements were "purely job-related."

1. Content

"We generally have held that speech about the use of public funds touches upon a matter of public concern." Kincade v. City of Blue Springs, 64 F.3d 389, 396 (8th Cir. 1995). Allegations of the misuse of public funds relate directly to citizens' interests as taxpayers, and are generally considered to address matters of public concern despite their personal pecuniary ramifications. See Kincade, 64 F.3d at 396; Casey v. City of Cabool, 12 F.3d 799, 803 (8th Cir. 1993).

Speech that criticizes a public employer in his capacity as a public official also addresses matters of public concern. "Criticism, no matter how obnoxious or offensive, of government officials and their policies clearly addresses matters of public concern." Casey, 12 F.3d at 802.; see Barnard v. Jackson County, 43 F.3d 1218, 1225 (8th Cir. 1995) (holding allegations of wrongdoing by public officials are on the highest order of First Amendment concern). Heightened public interest in a particular issue, while not dispositive, may also indicate that the issue is one of public concern. See Bowman v. Pulaski County

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Special School Dist., 723 F.2d 640, 644 (8th Cir.1983) (holding that media coverage and citizen activism " . . . are a good indication of the public's interest").

Not every statement made by a public employee about her job addresses a matter of public concern, however. "When a public employee's speech is purely job-related, that speech will not be deemed a matter of public concern . . . . Unless the employee is speaking as a concerned citizen, and not just as an employee, the speech does not fall under the protection of the First Amendment." Buazard v. Meredith, 172 F.3d 546, 548 (8th Cir. 1999). In Tuttle v. Missouri Department of Agriculture, for instance, we held...

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