Mahn v. Jefferson Cnty.

• Decision Date: 07 June 2018
• Docket Number: No. 16-1731,16-1731
• Parties: Jamie MAHN, Plaintiff–Appellant v. JEFFERSON COUNTY, State of MISSOURI, Defendant–Appellee 23rd Judicial Circuit, State of Missouri, Defendant Wes Wagner, Individually and in his Official Capacity as County Clerk/Election Authority of Jefferson County, Missouri; Howard Wagner, Individually and in his Official Capacity as Circuit Clerk of the 23rd Judicial Circuit, Jefferson County, Missouri, Defendants–Appellees Jeanette McKee, State of Missouri, Defendant Mike Reuter, Circuit Clerk of Jefferson County, Defendant–Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

891 F.3d 1093

Jamie MAHN, Plaintiff–Appellant

v.JEFFERSON COUNTY, State of MISSOURI, Defendant–Appellee

23rd Judicial Circuit, State of Missouri, Defendant

Wes Wagner, Individually and in his Official Capacity as County Clerk/Election Authority of Jefferson County, Missouri; Howard Wagner, Individually and in his Official Capacity as Circuit Clerk of the 23rd Judicial Circuit, Jefferson County, Missouri, Defendants–Appellees

Jeanette McKee, State of Missouri, Defendant

Mike Reuter, Circuit Clerk of Jefferson County, Defendant–Appellee

No. 16-1731

United States Court of Appeals, Eighth Circuit.

Submitted: January 9, 2018

Filed: June 7, 2018

Larry Alan Bagsby, THE BAGSBY LAW FIRM, Saint Charles, MO, for Plaintiff–Appellant.

William A. Hellmich, KING & KREHBIEL, Saint Louis, MO, for Defendants–Appellees Jefferson County, State of Missouri, Wes Wagner.

Denise Garrison McElvein, Assistant Attorney General, ATTORNEY GENERAL'S OFFICE P.O., Saint Louis, MO, for Defendant–Appellee Howard Wagner

Eileen Ruppe Krispin, Assistant Attorney General, ATTORNEY GENERAL'S OFFICE, Saint Louis, MO, for Defendant–Appellee Mike Reuter.

Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Jamie L. Mahn brought a First Amendment patronage-discharge claim under 42 U.S.C. § 1983 against Jefferson County, Missouri; Howard Lee Wagner ("Howard"), individually and in his official capacity as circuit clerk of Missouri’s 23rd Judicial Circuit; Howard Wesley Wagner ("Wes"), individually and in his official capacity as county clerk/election authority of Jefferson County; and Michael Reuter, in his official capacity as (successor) circuit clerk. The district court¹ granted summary judgment against Mahn. Having jurisdiction under 28 U.S.C. § 1291, this court affirms in part and remands in part.

I.

In 2012, Howard hired Mahn as a deputy clerk. In 2014, Howard did not run for reelection. He supported fellow Democrat Jeanette McKee. According to Mahn, Howard "summoned [her] into his office" to "forcefully impress upon [her] the need for her to vote for McKee and the Democratic ticket." She responded, "I’ll vote for whoever I want to, and what you’re threatening is unconstitutional."

Mahn voted in the August 5, 2014 Republican primary election. She alleges that on August 26, Howard told her: "Just wanted to chat with you a little bit. Just wanted to let you know that, you know, I know how you voted. And I don’t think you made the right decision. You know this could cause you your job." On September 19, 2014, Howard terminated Mahn’s employment. Her termination letter stated: "Poor work performance, unable to complete tasks correctly and within given time lines. Abuse of sick leave, insubordination by lying to assigned supervisor."

Mahn believes Howard terminated her because he learned she voted in the Republican primary. She alleges that Wes—Howard’s son—had "access to all voter information" because he was the county clerk/election authority. She claims Howard and Wes "reached a mutual agreement and understanding to commit the unlawful act of disclosing who [Mahn] had voted for, and thereafter, to discharge her from her employment for exercising her right to vote."

II.

The district court applied the framework from Langley v. Hot Spring County, Arkansas , 393 F.3d 814 (8th Cir. 2005). In Langley , this court explains that "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 , 393 F.3d at 817, quoting Branti v. Finkel , 445 U.S. 507, 518, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). The Langley case notes that a prior decision from this court "extended the Elrod– Branti principle to include cases in which political affiliation was a motivating factor in the dismissal, rather than the sole factor." Id. , citing Barnes v. Bosley , 745 F.2d 501, 507 (8th Cir. 1984), cert. denied , 471 U.S. 1017, 105 S.Ct. 2022, 85 L.Ed.2d 303 (1985). With the motivating-factor extension, Langley clarifies:

[T]o resolve a claim under Elrod and Branti at the summary judgment stage, the district court first determines whether the plaintiff has submitted sufficient evidence that political affiliation or loyalty was a motivating factor in the dismissal. If the plaintiff meets this burden, summary judgment must be denied unless the defendant establishes 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. The "mixed motives" alternative comes from Mt. Healthy City School District Board of Education v. Doyle , 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). See Barnes , 745 F.2d at 507. By Mt. Healthy :

[T]he burden of persuasion itself passes to the defendant-employer once the plaintiff produces sufficient evidence from which the fact finder reasonably can infer that the plaintiff’s protected conduct was a "substantial" or "motivating" factor behind her dismissal. Accordingly, once the burden of persuasion shifts to the defendant-employer, the plaintiff-employee will prevail unless the fact finder concludes that the defendant has produced enough evidence to establish that the plaintiff’s dismissal would have occurred in any event for nondiscriminatory reasons.

Wagner v. Jones , 664 F.3d 259, 270 (8th Cir. 2011), quoting Acevedo–Diaz v. Aponte , 1 F.3d 62, 67 (1st Cir. 1993).

Applying the Langley framework, the district court here assumed that "Mahn has submitted sufficient evidence that political affiliation or loyalty was a motivating factor in her dismissal." But it granted summary judgment for Howard and Reuter because they "established that Mahn would have been terminated in any event."

"This court reviews de novo a grant of summary judgment." Torgerson v. City of Rochester , 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). On appeal, Mahn claims that the district court applied the mixed-motive analysis from McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas ,

the plaintiff must first make what our court has described as a "minimal evidentiary showing" necessary to establish a prima facie case of discrimination. At that point, the burden of production shifts to the employer to articulate a legitimate non-retaliatory reason for the adverse employment action, but the burden of proof remains with the plaintiff to show a genuine issue of fact that an impermissible consideration was a motivating factor in the employment decision.

Davison v. City of Minneapolis, Minnesota , 490 F.3d 648, 662-63 (8th Cir. 2007)(Colloton, J., concurring in the judgment in part and dissenting in part) (internal citations omitted). Mahn argues that by McDonnell Douglas , "when the trial court has before it direct evidence of improper motive [at the summary judgment stage] ... it does not matter whether an employer produces evidence of a mixed-motive because the issue is one for the fact finder at trial." She says that she presented direct evidence, meaning summary judgment was improper.

Mahn, however, assumes McDonnell Douglas applies without considering Mt. Healthy . This court has inconsistent guidance about McDonnell Douglas and Mt. Healthy . One case holds that the type of evidence the plaintiff presents determines which test applies: "The so-called mixed motive analysis under Mt. Healthy is only used if a complainant has comes forward with evidence that directly reflects the use of an illegitimate criterion in the challenged decision." Graning v. Sherburne County , 172 F.3d 611, 615 n.3 (8th Cir. 1999) (citation and internal quotation marks omitted); see also Davison , 490 F.3d at 662-63 (Colloton, J., concurring in the judgment in part and dissenting in part) (citing Graning to conclude that Mt. Healthy "applies only where a plaintiff produces ‘direct evidence’ that the employer used the plaintiff’s speech as a criterion in the promotion decision," while McDonnell Douglas applies when direct evidence is not available).

But another case holds that the type of claim—not the type of evidence—invokes McDonnell Douglas or Mt. Healthy . In Jones , this court noted that Mt. Healthy applies to First Amendment cases, while McDonnell Douglas applies in Title VII cases. Jones , 664 F.3d at 270. Other circuits use this approach. See Walton v. Powell , 821 F.3d 1204, 1210 (10th Cir. 2016) (Gorsuch, J.) ("It’s surely notable, too, that almost every circuit to have considered whether McDonnell Douglas should apply in First Amendment discrimination or retaliation cases has thought the idea a poor one. ... And notable that the only circuit with authority going the other way now seems uncertain. Compare Graning v. Sherburne County , 172 F.3d 611, 615 & n.3 (8th Cir. 1999), with Wagner v. Jones , 664 F.3d 259, 270 (8th Cir. 2011)."); Allen v. Iranon , 283 F.3d 1070, 1075 n.4 (9th Cir. 2002) (noting Graning conflicts with cases from the First, Second, Third, Fifth, Sixth, Seventh, and Tenth Circuits).

Under either Graning or Jones , the result here is the same: Mt. Healthy applies. Mahn contends she presented direct evidence, satisfying Graning . And this is a First Amendment case, satisfying Jones . Although the district court did not cite Mt. Healthy , it used the framework from this court’s Langley decision. The mixed-motives alternative in Langley institutes the Mt. Healthy mixed-motives analysis.

This court need not resolve the issue Mahn presents—whether under McDonnell Douglas , direct evidence of improper motive at the summary-judgement stage makes mixed motives an issue for trial. An employer’s Mt. Healthy defense can be decided on summary judgment even if the plaintiff presents direct evidence of improper motive. See Walton , 821 F.3d at 1211 ("it seems to us to follow naturally from Mt. Healthy ...