454 F.3d 791 (8th Cir. 2006), 05-2774, Hughes v. Stottlemyre

Docket Nº:05-2774.
Citation:454 F.3d 791
Party Name:David HUGHES, Plaintiff-Appellant, v. Roger D. STOTTLEMYRE, Colonel, in his official capacity; James P. Ripley, as an individual and in his official capacity; Eric Wilhoit, as an individual and in official capacity; Vincent Ellis, Defendants-Appellees.
Case Date:July 19, 2006
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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454 F.3d 791 (8th Cir. 2006)

David HUGHES, Plaintiff-Appellant,

v.

Roger D. STOTTLEMYRE, Colonel, in his official capacity; James P. Ripley, as an individual and in his official capacity; Eric Wilhoit, as an individual and in official capacity; Vincent Ellis, Defendants-Appellees.

No. 05-2774.

United States Court of Appeals, Eighth Circuit.

July 19, 2006

Submitted: January 13, 2006

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

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[Copyrighted Material Omitted]

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Ferne P. Wolf, argued, St. Louis, Missouri (D. Eric Sowers), on the brief.

Theodore Allan Bruce, Assistant Attorney General, Jefferson City, Missouri (Jeremiah W. (Jay) Nixon, on the brief), for appellee.

Before BYE, HEANEY, and COLLOTON, Circuit Judges.

BYE, Circuit Judge.

David Hughes was a sergeant with the Missouri State Highway Patrol (Patrol) until May 2004, when he was demoted by Colonel Roger D. Stottlemyre to trooper and transferred to the Patrol's Gaming Division. Hughes brought a 42 U.S.C. § 1983 action, naming his immediate supervisors, Captain Vincent Ellis and Lieutenant James Ripley, as well as Eric Wilhoit, an investigator in the Patrol's Professional Standards Division. Hughes claims Ellis, Ripley and Wilhoit violated his First Amendment free speech rights by retaliating against him for opposing proposed changes in Patrol policy. Hughes named Stottlemyre in his official capacity as Patrol Superintendent but does not contend he personally retaliated against him.

The district court dismissed Hughes's claims finding he failed to present any evidence tending to discredit the legitimate non-retaliatory reasons offered for his demotion and transfer. On appeal, Hughes contends the district court applied the wrong test in evaluating his retaliation claim, and granted summary judgment on a basis not asserted by defendants. We affirm in part, reverse in part, and remand.

I

The facts, viewed in the light most favorable to Hughes, Dush v. Appleton Elec. Co., 124 F.3d 957, 962-63 (8th Cir.1997) (summary judgment standard), are as follows. In 2003, Hughes was a Zone Sergeant assigned to Bates County, Missouri. His direct supervisor was Lieutenant Ripley who served in a supervisory role in Bates County and Cass County, Missouri. Bates County and Cass County are located within the boundaries of the Patrol's Troop A, which was commanded by Captain Ellis. In June 2003, Hughes was told the Patrol was considering consolidating Bates and Cass counties. Hughes attended a meeting with Ellis and Ripley to discuss the proposed consolidation and expressed disagreement.

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To support his position, Hughes gathered statistics and other information tending to show the change would increase trooper response time and adversely impact public safety. As an alternative, Hughes suggested one trooper from Bates County be reassigned to Cass County to relieve its personnel problems. Ellis and Ripley favored consolidation, and Ripley voiced dissatisfaction with Hughes's alternative plan. Following the meeting, Ellis chose to delay consolidation and temporarily adopted Hughes's suggestion.1 Following the meeting, Ripley was visibly angry at Hughes, and it is at this point, according to Hughes, Ellis and Ripley began a campaign of retaliation.

Hughes alleges in the months following the meeting, Ripley repeatedly summoned him to Ripley's office approximately forty-five miles away. Prior to the meeting, Hughes had been called to Ripley's office on only one occasion. Additionally, within a month of the meeting Hughes received two verbal reprimands. One for arriving at work too early and a second for using sick leave while his father was dying of cancer. During this same time, Hughes alleges Ripley told him he disliked him.

Hughes further alleges Ripley and Ellis retaliated by giving him a performance evaluation decidedly more negative than those he had received for the preceding two years. In 2001, his performance was ranked between "Meets Expectations" and "Excels" in all categories, and the comments section contained primarily positive comments. In 2002, his performance was again ranked between "Meets Expectations" and "Excels," but the comments section carried some negative comments, including: "Sergeant Hughes has become almost consumed with the notion that he is going to be transferred to another division of the patrol." In 2003, after the consolidation plan was adopted, Hughes's performance evaluation indicated he "Meets Expectations" or "Excels," but carried additional negative comments directed at specific instances of conduct. Among other comments, the evaluation stated: "If Sergeant Hughes does not heed the suggestions he has been given the troop staff will have to give serious consideration to his ability to be able to function in a supervisory role." Hughes appealed the 2003 evaluation to Ellis, who rejected the appeal and advised him to improve his job performance.

Next, Hughes contends a policy instituted by Ripley to have subordinates evaluate their sergeants was retaliatory because Ripley discounted negative comments directed at other sergeants, while relying on those directed at him.

Hughes also contends four disciplinary complaints initiated in 2004 were brought in retaliation for his criticism of the consolidation plan. The first involved an incident on December 13, 2003, when a trooper under Hughes's supervision shot across a Missouri highway to kill a coyote and trespassed on private land to retrieve it. The complaint, initiated by Corporal Kevin Fisher who was under Hughes's supervision, alleged Hughes told him to report the incident to Ripley but not to volunteer any details. Additionally, the complaint alleged Hughes advised the trooper not to talk with investigators without having a lawyer present.

The second complaint, alleged Hughes ordered an on-duty trooper to transport his children to and from school on various occasions between 2001 and 2003. The complaint further alleged Hughes had from time to time used his patrol car to transport his children to and from school.

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No complaint was leveled at the trooper who transported Hughes's children.

The third complaint, alleged Hughes, at the behest of state senator Harold Caskey, ordered one of his troopers to retrieve license plates from a private vehicle being held at an impound lot. The owner of the lot had not been paid for the towing or storage charges and complained to Hughes. When interviewed by the investigator, the owner stated Hughes was rude and told him not to "mess with Senator Caskey."2

Finally, the fourth complaint involved an incident on March 22, 2004, when Hughes entered Fisher's residence to retrieve the keys to Fisher's patrol vehicle. Hughes's patrol vehicle had been damaged in a collision with a deer en route to a serious traffic accident and he needed a substitute. Fisher was off duty and his patrol vehicle was parked at his home only a few miles away. Hughes drove to Fisher's home, and, when he discovered Fisher was not there, entered the locked home using the keypad access code and located the vehicle keys. Fisher admitted giving Hughes the access code to his home on a previous occasion but indicated he had not otherwise given Hughes permission to enter his home.

Each of these complaints was initiated based on information provided by Fisher but was signed by either Ripley or Ellis because Patrol rules do not permit a subordinate to sign a complaint involving a superior. Each of the instances of alleged misconduct was investigated by Wilhoit in his role as an investigator with the Professional Standards Division of the Patrol. In each instance, Wilhoit interviewed Hughes who admitted much of the factual basis underlying each complaint. Nevertheless, Hughes contends Ripley and Ellis used the complaints as an opportunity to retaliate against him, and enlisted the aid of Wilhoit to further their plan.

As further evidence of retaliation, Hughes alleges in September 2003, Ripley solicited one of Hughes's subordinates for negative information about Hughes, and told Hughes if there was any way to reassign him he would. In March 2004, Hughes alleges Ripley approached another patrol member about accepting a promotion to Bates County and replacing Hughes as Zone Sergeant. In April 2004, Ripley removed Hughes from the state fair detail; a position Hughes had held for twelve years.

Finally, Hughes alleges he was retaliated against when he was 1) refused a position as a narcotics officer, 2) required to work more Wednesdays and Sundays, and 3) docked 3.5 hours compensatory time for attending a training session out of uniform.

On March 25, 2004, Hughes filed this action against Stottlemyre, Ripley and Wilhoit, alleging these actions constituted adverse employment actions taken in response to his opposition to the consolidation plan. In early May 2004, Stottlemyre convened a staff meeting, which included a Lieutenant Colonel, five majors, Wilhoit, Ellis and Ripley, to determine whether any disciplinary action should be taken in response to the complaints. Wilhoit and Ripley were not asked to make a recommendation as to discipline. Ellis and all but one of the remaining officers in attendance recommended termination. Stottlemyre initially agreed, but reconsidered and chose to demote Hughes and transfer him to the Gaming Division. Ellis complained to Stottlemyre that Hughes should be terminated

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and insisted he be prohibited from returning to Troop A. On May 11, 2004, Hughes filed an amended complaint adding Ellis as a defendant, and alleging the four complaints which caused his demotion and transfer were punishment for his exercise of protected speech.

The defendants moved for summary judgment arguing Hughes failed to make out a prima facie case of retaliation. As to the four complaints which Hughes alleges led to his demotion and transfer,...

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