Mercer v. City of Cedar Rapids

• Citation: 308 F.3d 840
• Decision Date: 15 October 2002
• Docket Number: No. 01-1135.,No. 01-1392.,01-1135.,01-1392.
• Parties: Teresa L. MERCER, Plaintiff-Appellant/Cross Appellee, v. CITY OF CEDAR RAPIDS; William Byrne, Defendants-Appellees/Cross Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

308 F.3d 840 Teresa L. MERCER, Plaintiff-Appellant/Cross Appellee,
v.
CITY OF CEDAR RAPIDS; William Byrne, Defendants-Appellees/Cross Appellants. No. 01-1135. No. 01-1392. United States Court of Appeals, Eighth Circuit. Submitted: May 15, 2002. Filed: October 15, 2002.

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Mark J. Seidl, argued, Marion, IA, for appellant/cross-appellee.

Mohammad H. Sheronick, argued, Cedar Rapids, IA, for appellee/cross-appellant.

Before BOWMAN, LOKEN, and BYE, Circuit Judges.

LOKEN, Circuit Judge.

Following her termination as a Cedar Rapids probationary police officer, Teresa Mercer filed this action against the City of Cedar Rapids and its former police chief, William Byrne. We will collectively refer to these defendants as the "City." Mercer asserted equal protection and due process claims under 42 U.S.C. § 1983, sex discrimination claims under 42 U.S.C. § 2000e-2 and Iowa Code § 216 et seq., and wrongful discharge and slander claims under state law. The district court granted summary judgment dismissing the § 1983, sex discrimination, and wrongful discharge claims. Mercer v. City of Cedar Rapids, 104 F.Supp.2d 1130 (N.D.Iowa 2000). Mercer appeals, and we affirm those rulings. After a trial, the jury awarded Mercer $48,000 in compensatory damages on her slander claim, and the district court denied the City's post-verdict motion for judgment as a matter of law. Mercer v. City of Cedar Rapids, 129 F.Supp.2d 1226 (N.D.Iowa 2001). The City cross-appeals that ruling. Concluding that Mercer presented constitutionally insufficient evidence of actual malice, we reverse the judgment in her favor on the slander claim.

I. Mercer's Appeal.

We review the district court's grant of summary judgment de novo, viewing the facts in the light most favorable to the non-moving party. "Summary judgment is appropriate against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 971 (8th Cir.1994) (quotation omitted). When the grant of summary judgment is followed by the trial of a different claim, evidence adduced at trial may not be used to bolster the position of the party who appeals the summary judgment ruling. See U.S. East Telecomms., Inc. v. U.S. West Comms. Servs., Inc., 38 F.3d 1289, 1301 (2d Cir.1994), followed in Barry v. Barry, 78 F.3d 375, 379 (8th Cir.1996).

Mercer was hired as a probationary police officer on March 17, 1997. That fall, she was twice seen socializing at a local tavern with Captain Phillip Peters, an officer who had been one of her instructors at the police academy. Chief Byrne interviewed Mercer, who admitted she was having marital difficulties. In November, Captain Peters reported that his tires had been slashed in the City's parking lot. Peters suspected Shawn Mercer, Mercer's husband and a Cedar Rapids Reserve Police Officer. In December, Mercer reported to suburban police that her residence had been vandalized. Shawn Mercer admitted doing the damage. In January 1998, Shawn forcibly entered Mercer's residence when Mercer, Peters, and Mercer's infant daughter were present. After a confrontation, Mercer physically removed Shawn from the premises. She did not notify the local police because she wanted to avoid an Internal Affairs investigation.

At some point, Chief Byrne requested an Internal Affairs investigation. Mercer

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admitted to the investigators that she was romantically involved with Captain Peters. Though Internal Affairs instructed her not to discuss the investigation with anyone except legal counsel, Mercer later accompanied Peters when he complained to the Public Safety Commissioner about Chief Byrne's handling of the investigation. Eventually, Byrne referred the matter to a Functional Management Team comprised of three Assistant Police Chiefs. After meeting with Shawn and Teresa Mercer, all three recommended Shawn's termination, and two recommended that Mercer be terminated. On March 10, Chief Byrne conducted an informal hearing at which Mercer appeared with counsel and defended her position. She was terminated on March 13, four days before the end of her one-year probationary period. Shawn Mercer was terminated as a Reserve Officer on March 12.

A. Equal Protection and Sex Discrimination Claims.

On appeal, Mercer challenges the dismissal of her § 1983 equal protection claim and her disparate treatment sex discrimination claims on a single ground — that she was treated differently than a similarly situated male because Captain Peters received no discipline for engaging in the same behavior that resulted in her termination.¹ Mercer argues that a rational jury could find that the City's sole reason for termination was her affair with Captain Peters, and that the decision to punish her but not Captain Peters violated her constitutional right to equal protection of the law and was a pretext for unlawful sex discrimination.

This argument cannot overcome the established law of this circuit that "troopers beyond the probationary period are not similarly situated to a probationary trooper," and therefore treating a non-probationary trooper more favorably than a probationary trooper is not probative evidence of pretext. Bogren v. Minnesota, 236 F.3d 399, 405, 408 (8th Cir.2000), cert. denied, ___ U.S. ___, 122 S.Ct. 44, 151 L.Ed.2d 16 (2001). Mercer argues that this principle should not apply because she was terminated only four days before the end of her probationary period. But this rejoinder is wide of the mark. Regarding her equal protection claim, when a § 1983 plaintiff compares government employees who are not similarly situated, and the dissimilarities do not result from suspect classifications, "any different treatment is justified if it is rationally related to a legitimate governmental interest." Post v. Harper, 980 F.2d 491, 495 (8th Cir.1992). Here, distinguishing between permanent and probationary employees on issues such as tenure and discipline serves a legitimate government interest, even if it results in arguably unfair disparate treatment in a particular case. Thus, the district court properly granted summary judgment dismissing Mercer's equal protection claim.

Regarding her sex discrimination claims, Mercer argues that the City did not come forward with "a sufficient nondiscriminatory reason" for her firing, the second stage of the familiar framework for analyzing Title VII claims adopted in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). We disagree. Although we accept for summary judgment purposes

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the truth of Mercer's contention that she was terminated solely because of a workplace romance, the City submitted evidence of additional reasons for the termination — that Mercer's conduct during the Internal Affairs investigations and at her residence in January 1998 violated Police Department general orders and rules and regulations regarding Conduct Unbecoming an Officer, Insubordination, Obedience to Laws and Regulations, and Compromising an Investigation. This showing easily satisfied the City's burden to articulate a nondiscriminatory reason for its action, a burden which "is not onerous." Floyd v. State of Mo. Dep't of Soc. Servs., 188 F.3d 932, 936 (8th Cir.1999).

Moving to the third stage of the McDonnell Douglas analysis, Mercer argues that Chief Byrne was guilty of sex discrimination because he "disapproved of a woman's involvement in extramarital sex, but did not disapprove of the man's involvement in it with her, even when they were co-employees." It may well be that an employer who always fires the woman when two employees engage in an office romance would be guilty of gender discrimination. But Mercer presented no evidence of such a pattern or policy in the City's Police Department, and no other evidence that Chief Byrne intentionally discriminated against female officers. Instead, Mercer's entire discrimination case was based on the fact that Chief Byrne fired her and did not punish Captain Peters. In that respect, the two were not similarly situated because Mercer was a probationary employee whereas Captain Peters had the Civil Service rights of a permanent employee. In these circumstances, the district court properly granted summary judgment dismissing Mercer's sex discrimination claims.²

B. The Procedural Due Process Claim.

The Due Process Clause protects a state or local government employee's liberty and property interests. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569-72, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In this case, Mercer alleges that Chief Byrne's comments to the press after her termination infringed a protected liberty interest. An employee's liberty interest is implicated when the employer accuses the employee of "dishonesty, immorality, criminality, racism, and the like," because it is "difficult or impossible for the employee to escape the stigma of those charges." Winegar v. Des Moines Indep. Cmty. Sch. Dist., 20 F.3d 895, 899 (8th Cir.), cert. denied, 513 U.S. 964, 115 S.Ct. 426, 130 L.Ed.2d 340 (1994). On the other hand, no liberty interest of constitutional significance is implicated when "the employer has alleged merely improper or inadequate performance, incompetence, neglect of duty or malfeasance." Buchholz v. Aldaya, 210 F.3d 862, 866 (8th Cir.2000) (quotation omitted); see Green v. St. Louis Hous. Auth., 911 F.2d 65, 69 (8th Cir.1990) ("Falsely charging an employee with unsatisfactory job performance when terminating him does not infringe his liberty interest.").

In this case, Byrne told a reporter that Mercer did not meet Police Department standards. Mercer argues these comments seriously damaged her reputation and "deprived her of her liberty interest in pursuing a career in law...