Graves v. Arkansas Department of Finance, 99-2347

• Decision Date: 15 September 2000
• Docket Number: No. 99-2347,99-2347
• Citation: 229 F.3d 721
• Parties: (8th Cir. 2000) CLAUDE GRAVES, APPELLANT, v. ARKANSAS DEPARTMENT OF FINANCE AND ADMINISTRATION; RICHARD WEISS, DIRECTOR, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; PRESTON MEANS, ASSISTANT COMMISSIONER OF REVENUE FOR OPERATIONS AND ADMINISTRATION, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; EVERETT LEATH, ADMINISTRATOR, OFFICE OF FIELD AUDIT, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; CHARLES STONE, MANAGER, OFFICE OF FIELD AUDIT, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES, APPELLEES. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 721

229 F.3d 721 (8th Cir. 2000)

CLAUDE GRAVES, APPELLANT, v. ARKANSAS DEPARTMENT OF FINANCE AND ADMINISTRATION; RICHARD WEISS, DIRECTOR, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; PRESTON MEANS, ASSISTANT COMMISSIONER OF REVENUE FOR OPERATIONS AND ADMINISTRATION, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; EVERETT LEATH, ADMINISTRATOR, OFFICE OF FIELD AUDIT, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; CHARLES STONE, MANAGER, OFFICE OF FIELD AUDIT, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES, APPELLEES.

No. 99-2347

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: September 15, 2000

Filed: October 17, 2000

Appeal from the United States District Court for the Eastern District of Arkansas.

Before Bowman, Beam, and Bye, Circuit Judges.

Per Curiam.

Claude Graves, a former tax auditor with the Arkansas Department of Finance Administration (ADFA), appeals the District Court's adverse grant of summary judgment in his 42 U.S.C. 1983 action. We affirm in part, and reverse and remand in part.

Graves was hired in May 1988 at a regional audit field office (Office), which Charles Stone managed. In March 1993, as "final" discipline for a variety of improper activities, Graves was placed on six months probation and warned that any further similar complaints, if deemed accurate, would result in his termination.

In 1995 and 1996, Graves occasionally worked--on state time--on a cabin Stone was building. In February 1997, after Stone promoted another employee instead of Graves to a supervisor position, Graves filed a grievance (Grievance I) claiming in part that promotions were not based on merit or seniority. In April 1997, when ADFA Director Richard Weiss met with Graves about Grievance I, Graves told him that drug and alcohol abuse existed in the Office, and that auditors were building Stone's cabin on state time. Weiss denied Grievance I, but requested a state police investigation of Graves's allegations. During the resulting investigation, Graves identified for police specified dates in 1995 and 1996 when he had worked on the cabin on state time.

In May 1997 Graves filed a second grievance (Grievance II), complaining that Stone was harassing him by, inter alia, saying he would be sure Graves "toed the line" after the Grievance I process was over, ordering him not to discuss Grievance I in the Office, and demanding to know what Graves had told Weiss. Grievance II was settled.

In October 1997, while Graves and fellow auditor David Rickman were on a field audit in Ohio, they drove a state-owned vehicle to Canada, a violation of ADFA policy. The incident was reported to Stone, who in turn informed ADFA Administrator Everett Leath. In November Graves filed a third grievance (Grievance III), again complaining that Stone was harassing him and citing, as one instance of harassment, his reassignment to motor-fuel audits, for which he had no experience. (He later attested it was a dead-end job.) Shortly thereafter, the state grievance committee denied Grievance I. Graves then received written notice that the state police report had been received, and that he was being terminated for using state time to work on Stone's cabin, for using a state vehicle for the Canada trip, and for incurring a major disciplinary action in May 1993 plus later "counselings." Although the notice was signed by Stone, ADFA Assistant Commissioner John Thies attested that he had made the decision to terminate Graves. Stone and a supervisor were suspended and placed on probation for approving or using sick time, or for using regular state time, for the cabin work; Rickman was suspended and placed on probation for the Canada trip. Grievance III was denied as moot.

Graves then filed the instant action, claiming violations of state and federal law--and seeking damages, declaratory relief, and reinstatement--on the basis that (1) he had been harassed and terminated for reporting Stone's use of state employees to build his cabin, and for using the grievance system to complain about the denial of a promotion and about the subsequent harassment and threats, all in violation of the First Amendment; and (2) he had been discharged for taking a state car to Canada whereas Rickman had merely been suspended, in violation of equal protection. ¹

The District Court granted defendants' summary judgment motion. Although the court found that under the balancing test in Pickering v. Board of Education, 391 U.S. 563, 568 (1968), Grievance I and Graves's report of the cabin incident were matters of public concern and Graves's right to free speech outweighed defendants' interests, the court concluded that the cited harassment did not rise to the level of a constitutional violation, Graves's protected speech was not a motivating factor in his termination, and the evidence did not show Graves was harassed or threatened for the grievances. The court also found that Graves was not similarly situated to Rickman, and it declined...