Gordon v. City of Kansas City, Mo.

• Decision Date: 18 October 2000
• Docket Number: No. 00-1024,00-1024
• Citation: 241 F.3d 997
• Parties: (8th Cir. 2001) JANICE GORDON, APPELLANT, V. CITY OF KANSAS CITY, MO; ROBERT MOHART; LESTER WASHINGTON; ISAIAH PICKETT; PETER YELORDA; PHILLIP DEXTER LARIMER, APPELLEES. . Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 997

241 F.3d 997 (8th Cir. 2001)

JANICE GORDON, APPELLANT,

V.

CITY OF KANSAS CITY, MO; ROBERT MOHART; LESTER WASHINGTON; ISAIAH PICKETT; PETER YELORDA; PHILLIP DEXTER LARIMER, APPELLEES.

No. 00-1024.

UNITED STATES COURT OF APPEALS, FOR THE EIGHTH CIRCUIT.

Submitted: October 18, 2000.

Filed: February 12, 2001.

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

[Copyrighted Material Omitted] Before McMILLIAN, Bowman and Loken, Circuit Judges.

McMILLIAN, Circuit Judge.

Janice Gordon (appellant) appeals from a final order entered in the United States District Court ¹ for the Western District of Missouri granting summary judgment in favor of the City of Kansas City, Missouri, (the City) and various employees of the City (collectively appellees) on her federal and state law claims arising out of the termination of her employment as the head of the City's Animal Control Division. Gordon v. City of Kansas City, No. 98-0951-CV-W-4 (W.D. Mo. Nov. 2, 1999) (hereinafter "slip op."). For reversal, appellant argues that the district court erred in holding that there is no genuine issue of material fact and appellees are entitled to judgment as a matter of law on (1) her First Amendment free speech claim brought pursuant to 42 U.S.C. 1983 and (2) her state law claims alleging negligent and intentional infliction of emotional distress. For the reasons discussed below, we affirm.

Jurisdiction

Jurisdiction in the district court was proper based upon 28 U.S.C. 1331, 1367, and 1441. Jurisdiction in this court is proper based upon 28 U.S.C. 1291. The notice of appeal was timely filed pursuant to Fed. R. App. P. 4(a).

Background

The following summary of background facts is based upon the district court's summary judgment order, except as otherwise indicated. See slip op. at 1-2 & n.1. In 1996, appellant was the "division head" of the City's Animal Control Division. The same year, the City Manager, Larry Brown, ² began efforts to implement a city-wide policy known as "transformation," which called for the privatization of some of the City's governmental functions, including some within the Animal Control Division. On or about August 19, 1996, appellant began circulating a petition ("the petition"), which urged "the removal of City Manager Larry Brown and his 'pods' and the return of city service provision to the professional staffs." Id. at 2. Appellant solicited signatures for the petition from within the Animal Control Division and from other departments in the City government. During the morning of August 19, 1996, appellant sent the petition by facsimile from the Animal Control Division to the Public Works Department, and, during her lunch hour that day, she drove to the Department of Conventions and Entertainment to present the petition for more signatures.

On August 21, 1996, defendant Lester Washington, the Assistant Director of Neighborhood and Community Service, and, at that time, the Acting Director of Neighborhood and Community Service, suspended appellant pending further investigation of her conduct in circulating the petition. Washington thereafter recommended that appellant be terminated. Following a hearing, appellant was terminated. She appealed to the Kansas City Personnel Appeals Board, which upheld her termination.

Appellant initiated the present action in Missouri state court. Appellant's complaint alleged, among other things, that she had been terminated for exercising her rights under the First Amendment free speech clause and that appellees had negligently and intentionally caused her to suffer emotional distress. Appellees removed the case to federal court and moved for summary judgment.

In considering appellant's First Amendment claim in the context of appellees' motion for summary judgment, the district court directly addressed the claim on its merits. ³ The district court applied the legal standards established by the Supreme Court in Connick v. Myers, 461 U.S. 138 (1983) (Connick), and Pickering v. Board of Education, 391 U.S. 563 (1968) (Pickering), and previously applied by this court in Shands v. City of Kennett, 993 F.2d 1337 (8th Cir. 1993) (Shands), Crain v. Board of Police Commissioners, 920 F.2d 1402 (8th Cir. 1990) (Crain), and many other cases. See slip op. at 4-8. The district court determined that: "[t]he specific circumstances of this case dictate that the Court give substantial weight to the time, place and manner of [appellant's] speech"; appellant's petitioning activity was "inherently disruptive to . . . work place harmony" despite the lack of evidence of any special need for harmony or any actual disruption of city government operations; and her petitioning activities adversely affected her own "ability to perform her duties and the efficiency of the workplace." See id. at 6-7. The district court concluded:

In sum, . . . application of the Pickering balance to the case at bar results in a finding in favor of [appellees]. While [appellant's] speech was on a matter of public concern, and even can be seen as having a high degree of public interest, the other factors in the balance are entitled to more weight on the facts of this case and tip the scale in favor of the government as an employer. Accordingly, [appellees] are entitled to summary judgment on [appellant's] 1983 claim based on her First Amendment right to free speech.

Id. at 8.

On appellant's state law claims of negligent and intentional infliction of emotional distress, the district court observed that, because appellant had suffered no physical injury, she was required under Missouri law to produce evidence "in the form of 'expert medical testimony that the emotional distress or mental injury was medically diagnosed and of sufficient severity as to be medically significant.'" Id. at 9 (quoting Van Eaton v. Thon, 764 S.W.2d 674, 676 (Mo. Ct. App. 1988) (Van Eaton)). The district court held:

The medical records submitted by [appellant] fail to demonstrate that the emotional distress she alleges was of sufficient severity as to be medically significant. Moreover, the records do not amount to expert medical testimony on this issue. [Appellant] could have produced an affidavit from the treating physician setting forth that the distress was medically significant if that indeed were the case. Because no such proof exists in the record, the Court must conclude that [appellees] are entitled to summary judgment on [appellant's] claims of intentional and negligent infliction of emotional distress.

Id. (footnote omitted). ⁴

The district court granted summary judgment for appellees on each of appellant's claims (some of which are not at issue in the present appeal), and final judgment was entered for appellees. Appellant timely appealed.

Discussion

We review a grant of summary judgment de novo. The question before the district court, and this court on appeal, is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate. See Crain, 920 F.2d at 1405-06.

First Amendment free speech claim

Appellant first argues that the district court erred in holding that appellees are entitled to judgment as a matter of law on her First Amendment free speech claim. In anticipation of appellees' argument to the contrary, appellant begins by defending the district court's threshold determination that the speech in question was "on a matter of public concern, and even [could] be seen as having a high degree of public interest." Slip op. at 8. In support of this determination, appellant argues that the evidence before the district court showed that she had circulated the petition in response to Brown's proposal to implement his "transformation" policy, which called for the privatization of many governmental functions. She maintains that she feared her department would lose jobs and resources, while at the same time be expected to provide better public services. In other words, she contends, she was concerned not about her own job but, rather, about the likelihood that taxpayers would end up paying more and getting less. She also alleges that a citizen's complaint to her department about the quality of City services triggered her thinking about a citizens' petition. Furthermore, she argues, at the time she began circulating the petition, the "transformation" proposal had already been discussed in the news and in churches, which shows that it already was a matter of public concern. See Brief for Appellant at 18-20. Upon review, we agree with the district court that the speech in question - the petition itself and appellant's expressive conduct in circulating it - touched on a matter of public concern.

Appellant argues, however, that the district court erred at the next stage of the Connick-Pickering analysis. See id. at 20-30. She contends that, in weighing her interests as a citizen-employee against those of the City as government-employer, the district court improperly relied on genuinely disputed facts, facts inconsistent with or unsupported by the evidence, and credibility determinations and inferences drawn in favor of appellees. Indeed, she argues, many of the facts assumed by the district court to be true are themselves logically inconsistent. Appellant also maintains that she sufficiently established a causal connection between her protected speech and her termination, as required by applicable case law. See id. at 31 (citing Lewis v. Harrison School Dist. No. 1, 805 F.2d 310 (8th Cir. 1986), cert. denied, 482 U.S. 905 (1987)). Appellant concludes that the district court improperly...