DePriest v. Milligan, 15-1365

• Decision Date: 26 May 2016
• Docket Number: No. 15-1365,15-1365
• Citation: 823 F.3d 1179
• Parties: Ronda DePriest, Plaintiff–Appellant v. Dennis Milligan, individually and in his official capacity, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

823 F.3d 1179

Ronda DePriest, Plaintiff–Appellant

v.Dennis Milligan, individually and in his official capacity, Defendant–Appellee.

No. 15-1365

United States Court of Appeals, Eighth Circuit.

Submitted: January 13, 2016

Filed: May 26, 2016

Counsel who presented argument on behalf of the appellant was Luther Oneal Sutter, of Benton, AR.

Counsel who presented argument on behalf of the appellee was David M. Fuqua, of Little Rock, AR. The following attorney(s) appeared on the appellee brief; Whitney F. Moore, of Little Rock, AR.

Before WOLLMAN, MELLOY, and COLLOTON, Circuit Judges.

MELLOY

, Circuit Judge.

Plaintiff Ronda DePriest filed two consolidated lawsuits against Dennis Milligan, alleging various gender discrimination and retaliation claims. The district court¹ granted Milligan's motion for summary judgment as to DePriest's discrimination and retaliation claims and dismissed without prejudice DePriest's state constitutional claims. We affirm.

I. Background

Ronda DePriest served as an at-will employee in the Saline County, Arkansas, Circuit Clerk's office from 1991 to 2010. She was appointed as Chief Deputy Clerk in 2002. In this capacity, DePriest handled real estate filings and some personnel and financial matters. The Chief Deputy Clerk works under and reports to the Circuit Clerk, who is an elected official in the County. In 2010, Dennis Milligan was elected Circuit Clerk in a close contest against long-time incumbent Doug Kidd. DePriest supported Kidd in the election by wearing his campaign shirt and walking in a parade on his behalf. It is undisputed that when a new Circuit Clerk is elected, he or she must appoint or reappoint individuals to staff the office. DePriest had been reappointed by Kidd each time he won an election.

On December 27, 2010, shortly before Milligan took office as Circuit Clerk, DePriest learned that she would not be retained as an employee under Milligan. Instead, Milligan hired Jim Harris, an experienced political operative, to fill DePriest's position. In contrast to DePriest's largely administrative role, Milligan envisioned his Chief Deputy would serve in a chief-of-staff capacity. Notably, Harris was responsible for managing public relations, advising Milligan, attending political functions, and performing some of the administrative tasks DePriest had done. At the time he took office, Milligan had not met DePriest and he contends she was not someone he could trust in this role. The parties agree that Harris's job duties are different from those that DePriest performed as Chief Deputy. However, DePriest contends that Harris is not as qualified to hold the position because she had nearly twenty years of experience.

In 2011, following DePriest's dismissal, an electronic record manager position opened in the office. DePriest contends she was qualified for the position and should have been hired. However, she did not apply for the position because she claims it was not publicly advertised. Evidence in the record shows the position was advertised on the County website and the office received nine applications. DePriest does not rebut this evidence, except to allege she did not see the position posted on the County website. There is no indication that a vacancy could be filled by an individual who did not apply for the position.

On April 12, 2012, DePriest filed suit against Milligan in his official and individual capacities in state court. She claimed Milligan: (1) dismissed her in retaliation for her political affiliation with Kidd in violation of the First Amendment; (2) discriminated against her because she is a woman by dismissing her, hiring a less qualified man, and not allowing her to reapply for another position in violation of Title VII, the Equal Protection Clause through § 1983, the Government Employee Rights Act (“GERA”),² and the Arkansas Civil Rights Act (“ACRA”); and (3) violated her right to petition the government under Article II, section 4 of the Arkansas Constitution. Milligan removed the case to federal court. On September 30, 2013, following discovery, the district court granted Milligan's motion for summary judgment as to the First Amendment political affiliation claim. The district court granted a stay as to the GERA and gender discrimination claims to allow DePriest to submit these claims to the EEOC.³ Subsequently, the EEOC reviewed DePriest's claims twice, concluding both times she did not meet the criteria for coverage under the GERA. DePriest did not appeal the EEOC's determination.

In 2013, DePriest applied for two open positions in the Circuit Clerk's office. She was among three candidates interviewed for the first position, but was not interviewed for the second position. Milligan indicated that DePriest was not hired for either position because she did not have experience with a new computer system that Milligan had implemented in the office. DePriest contends she was not hired because she is a woman and because of her pending lawsuit against Milligan. Both positions were filled by women who had experience with the computer system because they were currently employed in the Circuit Clerk's office in other capacities.

On January 16, 2014, while the first lawsuit remained pending, DePriest again filed suit against Milligan in state court. She claimed Milligan's failure to hire her in 2013 was in retaliation for her lawsuit against him, which violated the First Amendment, Title VII, and the ACRA. Milligan again removed the case to federal court where it was consolidated with the original case. Milligan moved for summary judgment in the consolidated case on all of the remaining unresolved issues.

In an order addressing the remaining claims in both lawsuits, the district court granted summary judgment in favor of Milligan as to DePriest's federal claims and declined to exercise jurisdiction over her state constitutional law claims. In particular, the district court concluded DePriest's gender discrimination claim under the GERA had no merit because the statute does not apply to her and, even if it did apply, the district court determined it would not have jurisdiction to review her claim. Regarding DePriest's claims under Title VII, the ACRA, and the Equal Protection Clause through § 1983, the district court determined Milligan's decision to dismiss DePriest after adding political and personal loyalty aspects to the Chief Deputy position did not violate state or federal law. The district court concluded that DePriest's argument that she is more qualified than Harris fails to establish Milligan's reason was merely a pretext for discrimination. The district court also considered and granted summary judgment as to DePriest's gender discrimination claim based on Milligan's failure to hire her for the electronic records manager position, for which she did not apply, in 2011.

Next, the district court turned to DePriest's claims of retaliation in her second lawsuit. Regarding DePriest's claim that Milligan violated the First Amendment when he retaliated against her for filing a lawsuit against him, the district court concluded DePriest failed to show that Milligan's nondiscriminatory reason for not hiring her was a pretext. Similarly, the district court concluded DePriest failed to establish a prima facie case of Title VII retaliation because she could not show that her lawsuit against Milligan was a determinative factor in not hiring DePriest for the two positions in 2013. DePriest appeals from this judgment.

II. Discussion

We review a grant of summary judgment de novo, construing the record in the light most favorable to the nonmoving party. Rickard v. Swedish Match N. Am., Inc. , 773 F.3d 181, 184 (8th Cir. 2014)

. “To survive summary judgment, a plaintiff ‘must substantiate [her] allegations with sufficient probative evidence that would permit a finding in [her] favor on more than mere speculation, conjecture, or fantasy.’ ” Id. (quoting Moody v. St. Charles Cnty. , 23 F.3d 1410, 1412 (8th Cir. 1994) ). We may affirm an order granting summary judgment “on any basis supported by the record.” Keefe v. City of Minneapolis , 785 F.3d 1216, 1222 (8th Cir. 2015) (quoting Saulsberry v. St. Mary's Univ. of Minn. , 318 F.3d 862, 866 (8th Cir. 2003) ).

A. First Amendment Claim

DePriest claims Milligan violated the First Amendment by dismissing her from the Chief Deputy position because of her political affiliations. When the sole reason for a dismissal is the employee's political affiliation, we apply the test set forth by the Supreme Court in Elrod v. Burns , 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)

, and Branti v. Finkel , 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). In such circumstances, “a dismissal solely on account of an employee's political affiliation violates the First Amendment unless ‘the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.’ ” Langley v. Hot Spring Cnty., Ark. , 393 F.3d 814, 817 (8th Cir. 2005) (quoting Branti , 445 U.S. at 518, 100 S.Ct. 1287 ). In order to survive summary judgment on a claim of politically motivated dismissal, the plaintiff must “submit [ ] sufficient evidence that political affiliation or loyalty was a motivating factor in the dismissal.” Id.

If the plaintiff satisfies this burden, the defendant must “establish[ ] either that the political motive is an appropriate requirement for the job, or that the dismissal was made for mixed motives and the plaintiff would have been discharged in any event.” Id. “In general, personal loyalty is ‘an appropriate requirement’ where the individual ‘reports directly to the [chief executive] and his duties include public relations and responsibility for ... long-range planning.’ ” Id. at 818 (quoting Johnson v. City of W. Memphis , 113 F.3d 842, 844 (8th Cir. 1997) ) (alterations in original).

Milligan seems to concede that he dismissed DePriest from her Chief Deputy position due to her...