Green v. City of St. Louis, Mo.
| Decision Date | 02 November 2007 |
| Docket Number | No. 06-3349.,06-3349. |
| Citation | 507 F.3d 662 |
| Parties | Percy GREEN, II, Plaintiff/Appellant, v. CITY OF ST. LOUIS, MISSOURI; St. Louis, Development Corporation; Francis Slay, as Mayor and individually; Jeff Rainford, officially and individually; Barbara Geisman, individually and officially; Rita Kirkland, individually and officially; Phillip Hoge, officially and individually, Defendants/Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Robert J. Reinhold, argued, St. Louis, MO, for appellant.
Nancy R. Kistler, argued, Thomas Goeddel, Maribeth McMahon, on the brief, St. Louis, MO, for appellee.
Before LOKEN, Chief Judge, JOHN R. GIBSON, and WOLLMAN, Circuit Judges.
Percy Green appeals from the district court's1 entry of partial summary judgment against him and its entry of judgment on a jury verdict against him on the claims that remained for trial. Green argues that the district court erred in entering summary judgment against him on his claim under 42 U.S.C. §§ 1981, 1981a, and 1983 for refusing to hire him in retaliation for exercise of his First Amendment rights and on his claim under 31 U.S.C. § 3730(h) for retaliation against a whistleblower. He also contends that the district court erred in excluding evidence of statements made after he was terminated and in instructing the jury. We affirm.
Green's claim arises out of the reorganization of the City of St. Louis' program for certification of businesses as Minority Business Enterprises or Women's Business Enterprises. In 1993, Green was hired by St. Louis Development Corporation, a non-profit organization, which administered the City's Women and Minority Business Enterprise Participation Program. Green was named Director of the certification program. The City also provided certification of Women and Minority Business Enterprises through another office, the Lambert-St. Louis Airport's Contract Administration/Disadvantaged Business Enterprise Office.
Shortly after Mayor Francis Slay took office in April 2001, his Special Assistant Rita Kirkland conducted a review of the City's Women and Minority Business Enterprise certification and compliance program. Kirkland determined that the functions performed by St. Louis Development Corporation's compliance and certification program could be handled more efficiently and with fewer complaints by the Airport's Disadvantaged Business Enterprise Office. After reviewing Kirkland's report, Slay and his staff decided to transfer the functions performed by Green's office to the Airport's office. On September 26, 2001, the St. Louis Development Corporation eliminated its certification section, and Green lost his job.
Green brought a three count complaint alleging two civil rights claims, each alleging, inter alia, that he had been discriminated against by being laid off and not rehired. He alleged that the defendants terminated his employment and refused to rehire him in retaliation against him for exercising his First Amendment rights in speaking out about women- and minority-owned business certification. The second count alleged that he had been laid off and not rehired because he objected to improper certification of businesses which were not truly owned by women or minorities. He included a third count, which alleged retaliation for acting as a whistleblower and sought recovery under 31 U.S.C. § 3730(h), the False Claims Act. Green named as defendants Mayor Slay; Jeff Rainford, Chief Deputy Mayor; Barbara Geisman, Assistant to the Mayor; Rita Kirkland, Special Assistant to the Mayor; St. Louis Development Corporation and its executive director, Philip Hoge; and the City of St. Louis.
The defendants moved for summary judgment, which the district court granted in part. First, the district court held that Green had not come forward with evidence substantiating his claim that the defendants unlawfully failed to rehire him because he never showed he had applied for any job after the lay-off, he offered no evidence as to the qualifications of any job opening the City had, and he did not show the qualifications of those hired. Green v. City of St. Louis, No. 4:05CV198 JCH, 2006 WL 1663439, at *3 (E.D.Mo.2006).
Next, the district court considered Green's claim that he had been laid off in retaliation for protesting the City's certification process. The court held that Green had brought forth evidence that he had engaged in speech protected by the First Amendment when he gave interviews to the newspaper protesting the City's policy of granting reciprocal certification, in which businesses certified by certain other agencies would automatically qualify for certification from the St. Louis Development Corporation. According to the district court, the short time between a June 17, 2001 newspaper article in the St. Louis Post-Dispatch quoting Green and the City's decision to review the certification process, which led to Green's termination, gave rise to an inference that Green's statement to the press led to the termination of his job. Id. at *5. The court therefore held that Green had established a prima facie case of retaliation. The City contended that its transferral of the certification process to the Airport office, which resulted in loss of Green's job, was prompted by legitimate, nondiscriminatory reasons of expediting processing, minimizing duplication of work, and improving oversight of the certification process. Id. The court determined, however, that Green met the City's defense with evidence of pretext, in that the Airport Disadvantaged Business Enterprise office had as great a backlog as Green's office had. Id. Therefore, the court determined that there was a triable issue of fact as to whether Green had been laid off for exercising his First Amendment rights.
The court construed Count II of the complaint as an allegation that Green had been terminated for refusing to engage in mail fraud by certifying businesses as women- and minority-owned without adequate investigation. The court concluded that Green had not shown evidence that the defendants engaged in mail fraud or tried to coerce Green to do so. Id. at *8. Therefore, the court entered summary judgment against Green on his claim that he was terminated in violation of public policy, though the court noted that Count II could survive as stating a claim under 42 U.S.C. § 1981 for retaliation against Green for protesting unlawful interference with contract rights in relation to the certification process. Id., at *9 & 11 n. 18.
The district court also held that Green had failed to bring forward any evidence that he had engaged in activity protected by the False Claims Act, since he could not identify any grant applications that made false assertions about inclusion of women and minorities and he could not identify any reports submitted to the federal government that were based on false certifications. Id. at *10.
The parties proceeded to trial on the claim that Green was laid off in retaliation for his exercise of First Amendment rights in making the statement to the St. Louis Post-Dispatch. At the close of Green's case, the court dismissed the individual defendants. The court submitted the claim against the City to the jury to decide whether (1) the City terminated Green's employment, and (2) the termination was caused at least in part by Green's statements to the St. Louis Post-Dispatch. The court also submitted to the jury a special interrogatory to assist the court in determining whether Green's statement to the Post-Dispatch was protected by the First Amendment. The interrogatory asked: "Did Plaintiff make his statements that were published in the Post-Dispatch on June 17th, 2001, in his capacity as a citizen or in his capacity as the Director of the Women and Minority Business Enterprise Certification Program?" The jury returned a verdict in favor of the City, as well as an answer to the special interrogatory finding that Green's statements were made as Director of the Women and Minority Business Enterprise Certification Program.
Green appeals the district court's entry of partial summary judgment and its entry of judgment on the jury verdict.
Green first contends that the district court erred in entering summary judgment against him on his claim that the City unlawfully refused to rehire him and on his claim of retaliation under the False Claims Act. We review the entry of summary judgment de novo, asking whether the record, viewed in the light most favorable to Green, showed that there was no genuine issue of material fact and that the defendants were entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Hope v. Klabal, 457 F.3d 784, 790 (8th Cir.2006).
Green contends that the district court erred in entering summary judgment against him on his claim that the defendants unlawfully refused to rehire him after he was laid off. To establish a prima facie claim for discriminatory failure to hire, a plaintiff must show that "he applied and was qualified for a job for which the employer was seeking applicants." Chambers v. Wynne Sch. Dist., 909 F.2d 1214, 1216 (8th Cir.1990) (). Green conceded that he had not applied for a job. However, the application requirement will be excused
if the job opening was not officially posted or advertised and either (1) the plaintiff had no knowledge of the job from other sources until it was filled, or (2) the employer was aware of the plaintiff's interest in the job notwithstanding the plaintiff's failure to make a formal application.
Chambers, 909 F.2d at 1217 (emphasis added). Green argues, without citation to the record, that the application requirement should be obviated in his case because "he was told at the time of his layoff that he would be contacted for any possible recall or...
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