Hemminghaus v. State

• Decision Date: 01 July 2014
• Docket Number: No. 13–1566.,13–1566.
• Citation: 756 F.3d 1100
• Parties: Nadine A. HEMMINGHAUS, Plaintiff–Appellant v. State of MISSOURI; Gary M. Gaertner, Jr., Defendants–Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

756 F.3d 1100

Nadine A. HEMMINGHAUS, Plaintiff–Appellant

v.State of MISSOURI; Gary M. Gaertner, Jr., Defendants–Appellees.

No. 13–1566.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 14, 2014.

Filed: July 1, 2014.

Susan M. Andorfer, argued, Belleville, IL, for appellant.

Michael W. Kopp, AAG, argued, Jefferson City, MO (Jase C. Carter, AAG, on the brief), for Appellee.

Before RILEY, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.

RILEY, Chief Judge.

Nadine Hemminghaus worked as a court reporter for then Missouri circuit judge Gary M. Gaertner Jr. from October 2006 until April 2009. Hemminghaus complains Judge Gaertner fired her because she asked for leave from work to care for her children, whom she suspected had been abused by their nanny, and because she criticized the St. Louis Police Department and the county prosecutor for not pursuing criminal charges against the nanny. Hemminghaus filed claims against the State of Missouri (the State) for violating § 102(a) of the Family Medical Leave Act (FMLA), 29 U.S.C. § 2612(a), and against Judge Gaertner, pursuant to 42 U.S.C. § 1983, for retaliating against her for exercising her First Amendment right to free speech. The district court ¹ granted summary judgment in favor of Judge Gaertner and the State on all claims. With appellate jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUNDA. Facts ²

Judge Gaertner was appointed as a Missouri circuit judge by the governor of Missouri in 2000, and successfully ran in retention elections in 2002 and 2008. In December 2009, Judge Gaertner was appointed to the Missouri Court of Appeals.

Before working for Judge Gaertner, Hemminghaus held two other court reporter positions for the State from May 1997 until October 2006. Judge Gaertner appointed Hemminghaus as his court reporter in October 2006, and she held that position until Judge Gaertner fired her on April 28, 2009. By statute, Hemminghaus was Judge Gaertner's “official court reporter” and held her “office during the pleasure of” Judge Gaertner. Mo.Rev.Stat. § 485.040.

In September 2008, approximately seven months before Hemminghaus was fired, she discovered her nanny had abused her two preschool-aged children. On many occasions thereafter, Hemminghaus asked Judge Gaertner for leave time to care for her children, who were having “emotional issues from the abuse.” Judge Gaertner did not always allow Hemminghaus the requested leave time, and, when allowed, Hemminghaus had to find a substitute court reporter.

Hemminghaus sought criminal charges against the nanny, but the St. Louis county prosecutor declined to press charges. Hemminghaus considered speaking to the media about the case, but Judge Gaertner discouraged her from doing so by telling Hemminghaus she would be fired if she talked to the press. Hemminghaus did anonymously post “blog” messages on the Internet about her children's case and the issue of child abuse.

As Hemminghaus's children's behavioral problems escalated, she felt she needed more leave time to care for them, particularly in the mornings. Hemminghaus also felt she needed leave time to take the children to see their doctors and counselors for treatment and testing. According to Hemminghaus, Judge Gaertner sometimes did not answer Hemminghaus's requests for leave, causing her to miss doctor appointments.

Before her termination, Hemminghaus's relationship with Judge Gaertner became strained. On the day before her termination, April 27, 2009, Judge Gaertner denied leave to Hemminghaus to care for her children. As reported by Hemminghaus, during a conversation in chambers, Judge Gaertner told Hemminghaus not to mention the case against the nanny to anyone at the courthouse. Later that day, Judge Gaertner told Hemminghaus no one would take her case because no one would believe her children. Hemminghaus told Judge Gaertner, “[P]lease don't do anything to harm me or my case, and I won't have to tell people what you're doing to me by denying my rights.” Hemminghaus wondered aloud if the investigative television show Dateline would report on her case. Hemminghaus claims Judge Gaertner reacted by jumping up, running from behind his desk, and screaming, “Get out of here now and never come back in here again!” Hemminghaus told Judge Gaertner, “If you're going to fire me, just do it because I can't take this anymore.”

The next day, Judge Gaertner called a meeting with Hemminghaus and Gail Crane, the Chief Probate Clerk. Suspecting she would be fired, Hemminghaus called her attorney and brought her cell phone with her attorney on the line into chambers. Because the attorney was on the phone, Judge Gaertner ended the meeting. He sent Hemminghaus a termination letter later that day.

B. Procedural History

Hemminghaus filed a complaint in the district court alleging Judge Gaertner fired her for two reasons: first, because she asked for leave from work to care for her children, and second, because she criticized both the St. Louis county prosecutor for not pursuing criminal charges against the nanny and the police department for its handling of the case. Hemminghaus appeals the district court's grant of summary judgment to defendants on her claims for violation of the FMLA, alleged against the State, and of retaliation in violation of her First Amendment right to free speech, alleged against Judge Gaertner.

II. DISCUSSIONA. Standard of Review

A district court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “We review a grant of summary judgment de novo.” Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.2005).

B. FMLA Claim

Hemminghaus contends Judge Gaertner violated the FMLA both by denying her leave to care for her children and terminating her for requesting such leave. The State argues Hemminghaus is not an eligible employee under the FMLA because she is excluded as a personal staff member of a public elective office holder. The FMLA excludes from its protection those employees who are “selected by the holder” of a “public elective office of that State” “to be a member of his personal staff.” 29 U.S.C. § 203(e)(1), (2)(C)(ii)(I), (II); see29 U.S.C. § 2611(3).

1. Public Elective Office Holder

Certain state judges in Missouri, including Judge Gaertner, are selected according to the “Missouri Plan”—the governor first appoints them and they later can declare candidacy for a retention election without any opposing candidate. SeeMo. Const. art. V, § 25(a), (c)(1). The first question here is whether such Missouri Plan judges “hold[ ] a public elective office.” 29 U.S.C. § 203(e).

Our court has not directly answered this question. In 1984, we noted, but did not address, the issue in the context of Title VII of the Civil Rights Act of 1964: “Our holding that [an employee] was not an ‘immediate adviser’ makes it unnecessary to decide the further question whether Missouri Circuit Judges ... are ‘elected to public office’ within the meaning of [42 U.S.C.] § 2000e(f).” Goodwin v. Cir. Ct. of St. Louis Cnty., Mo., 729 F.2d 541, 549 n. 10 (8th Cir.1984).³

In 1990, we discussed this issue in the context of an Age Discrimination in Employment Act (ADEA) claim. See Gregory v. Ashcroft, 898 F.2d 598, 600 (8th Cir.1990), aff'd,501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). The ADEA definition of “employee” excludes “any person elected to public office in any State ... by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office.” 29 U.S.C. § 630(f). In determining whether Missouri state judges fell into this category, we reasoned,

As a preliminary matter, we note that the District Court found [the Missouri state judges], initially appointed by the Governor and retained in office by a majority of the voters as required by the Missouri Plan, to be outside the ADEA's exception for persons “elected to public office”. Although we are inclined to disagree with this aspect of the District Court's decision, the Governor did not cross-appeal this issue, it was not briefed by either side, and it is not properly before us. We therefore express no opinion on this point, and shall assume for the balance of this opinion that state judges selected according to the Missouri Plan are appointed and not “elected” within the meaning of the ADEA.Gregory, 898 F.2d at 600 (footnote omitted). We held that “judges appointed under the Missouri Plan are excluded from the coverage of the ADEA because they are ‘appointee[s] on the policymaking level’ within the meaning of 29 U.S.C. § 630(f).” Id. at 604. The United States Supreme Court, too, did not reach the issue: “Because we conclude that [the judges] fall presumptively under the policymaking-level exception, we need not answer this question.” Gregory, 501 U.S. at 467, 111 S.Ct. 2395.⁴

Nevertheless, we now decide the district court was correct in concluding Judge Gaertner was a public elective office holder. The FMLA language at issue excludes an employee who is a “ holder ” of a “public elective office.” 29 U.S.C. § 203(e)(1), (2)(C)(ii)(I), (II) (emphasis added). Judge Gaertner had, in fact, been retained once in an election before hiring Hemminghaus as his official court reporter and twice before terminating Hemminghaus. The plain language of the statute makes no distinction between elective offices where another candidate's name appears on the ballot and offices where the holder is simply given an up or down retention vote. In either event, whether a “yes” or “no” retention of a sitting judge or a heated contest between multiple candidates, the process results in an “election,” that is, a “choice,” by the voting public.⁵ “Retention elections are opportunities for the...