Tristan Bonn v. City Of Omaha

• Decision Date: 19 October 2010
• Docket Number: No. 09-3332.,09-3332.
• Citation: 623 F.3d 587
• Parties: Tristan BONN, Appellant, v. CITY OF OMAHA, a political subdivision; Jim Suttle, in his official capacity as Mayor of Omaha; Steve Oltmans, in his official capacity as the Mayor's Chief of Staff, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

623 F.3d 587

Tristan BONN, Appellant,

v.CITY OF OMAHA, a political subdivision; Jim Suttle, in his official capacity as Mayor of Omaha; Steve Oltmans, in his official capacity as the Mayor's Chief of Staff, Appellees. ¹

No. 09-3332.

United States Court of Appeals,Eighth Circuit.

Submitted: June 17, 2010.

Filed: Oct. 19, 2010.

Brent Nicholls, argued, Bassel El-Kasaby, on the brief, Omaha, NE, for appellant.

Michelle Peters, argued, Omaha, NE, for appellee.

Before WOLLMAN, EBEL, ² and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Tristan Bonn was terminated from her position as the Public Safety Auditor for the City of Omaha after she published a report criticizing the Omaha Police Department(“OPD”).Bonn filed suit in Nebraska state court against the City of Omaha, former Mayor Mike Fahey, and the former Mayor's Chief of Staff Paul Landow(collectively, “appellees”).Bonn asserted a claim under Title VII of the Civil Rights Act,42 U.S.C. § 2000e et seq., alleging that the appellees unlawfully retaliated against her for opposing discriminatory employment practices.She also asserted a claim under 42 U.S.C. § 1983, contending that the appellees violated her rights to freedom of speech under the First and Fourteenth Amendments when they terminated her for publishing the report.Bonn asserted two more claims based on Nebraska state law.After the appellees removed the case to federal court, the district court³ granted summary judgment in favor of the appellees on Bonn's Title VII and § 1983 claims, and remanded the state-law claims to state court.Bonn appeals, and we affirm.

I.

Because we are reviewing the district court's grant of summary judgment against Bonn, we recite the facts in the light most favorable to her.SeeBarker v. Mo. Dep't of Corr.,513 F.3d 831, 834(8th Cir.2008).Bonn was hired in June 2001 as the Independent Public Safety Auditor for the City of Omaha, and she held that position until she was terminated in October 2006.The position of Public Safety Auditor position was created to review and audit citizen complaints against sworn police officers and firefighters.As part of her duties, Bonn authored numerous published reports, and she spoke often to media organizations to disseminate her findings.

Bonn's position was established by ordinance and was funded by the Omaha City Council, but shortly after Bonn was hired, the city council decided to stop funding the position.Mayor Fahey secured private funding for the position through 2005.On January 1, 2006, Bonn became an employee of Mayor Fahey's office.Bonn says that she never received a written job description, but Landow allegedly told her to “just keep doing what [she] had been doing.”Bonn also asserts that she and Landow agreed that she lost her civil service protection, but that she would not be terminated if she wrote a report that the Mayor did not like.

As part of her official duties as the Public Safety Auditor, Bonn prepared a report entitled “Anatomy of Traffic Stops.”Bonn asserts that throughout 2006, she kept Mayor Fahey and Landow apprised of her intention to publish a report about traffic stops.Then, on the afternoon of October 19, 2006, Bonn sent by e-mail a copy of her completed report to Mayor Fahey, Landow, and the Chief of Police.On October 20, 2006, Bonn had the report posted to the Auditor's website and distributed it to interested individuals via e-mail.Mayor Fahey asserts that he did not have an opportunity to review and comment on the final version of the report before it was published.

The report declared that it would “describe, by analyzing traffic stop complaints, how the [OPD] finds itself currently estranged from many of the communities it serves and offers suggestions about how it can repair those relations.”In a section of the report entitled “The Scope of this Report,” Bonn stated:

In an attempt to illuminate the causes of [complaints filed against the OPD], this report examines the separate and distinct parts of a traffic stop typically conducted by OPD and the resulting complaint patterns.The report goes on to analyze the practices and procedures that give rise to the community's repeated complaints.By closely examining both the complaint patterns and dissecting the traffic stop practices, this report will lay bare the anatomy of these traffic stops in an attempt to uncover some of the root causes of these complaints.

Another section entitled “Solutions” set forth a number of recommendations about how the OPD could “improve its relationship with the communities of color.”Within this section, the report included several paragraphs related to recruitment.Bonn noted that the “OPD has not been very successful recruiting or maintaining a diverse workforce.”She explained that a “by-product of harsh and poor policing tactics in communities of color is that the young members of those communities do not select policing as a career,” and that excessive policing in minority neighborhoods may eliminate minorities from the application pool because of misdemeanor police records.Her report also described the lack of African-Americans working on the night shift in one precinct, and explained that some Omaha residents would like to see more diversity in the police forces in their neighborhoods.

After Bonn's report was published, she spoke with at least two media outlets, a radio station and the Omaha World-Herald newspaper.Bonn explained that she commented on a radio show after the station contacted her about the report.On October 24, 2006, the Omaha World-Herald published an article entitled “Mayor Sides With Police After Report,” which discussed Bonn's report and quoted “Public Safety Auditor Tristan Bonn.”

On October 30, 2006, Bonn was terminated.In a letter to Bonn, Mayor Fahey stated Bonn's release of the report without notice to the mayor was insubordinate.In his deposition, Landow cited as reasons for the termination a complaint that Bonn sent to the Omaha World-Herald by e-mail about the paper's coverage of her report, a disrespectful e-mail that Bonn sent to Landow, and comments she made to the media in connection with the report that were critical of Mayor Fahey.

The district court granted summary judgment in favor of the appellees on Bonn's claims under Title VII and § 1983 and remanded her state-law claims to state court.The court concluded that Bonn's Title VII claim failed because she did not present a submissible case that the appellees retaliated against her for opposing a discriminatory employment practice.On Bonn's § 1983 claim, the court ruled that Bonn's statements in her report and to the media were not protected by the First Amendment.

We review the district court's grant of summary judgment de novo.Babinski v. Am. Family Ins. Grp.,569 F.3d 349, 351(8th Cir.2009).Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”Fed.R.Civ.P. 56(c)(2).

II.

Bonn first contends that the district court erred in granting summary judgment in favor of the appellees on her Title VII retaliation claim.Under Title VII, it is unlawful for an employer to discriminate against an employee because she“opposed any practice made an unlawful employment practice by [Title VII].”42 U.S.C. § 2000e-3(a).Bonn contends that by publishing her report, she“was opposing systemic discrimination within the Omaha Police Department.”⁴

Because the factual record was fully developed on Bonn's motion for summary judgment, we focus on the ultimate question whether she presented sufficient evidence to make a submissible case of unlawful retaliation.McCullough v. Univ. of Ark. for Med. Scis.,559 F.3d 855, 861(8th Cir.2009);Riser v. Target Corp.,458 F.3d 817, 820-21(8th Cir.2006).To establish a claim of retaliation, Bonn must present evidence (1) that she engaged in a protected activity, (2) that the employer took an adverse action against her, and (3) that a causal connection exists between the two.Barker,513 F.3d at 835.The district court concluded that Bonn's Title VII claim failed because Bonn did not establish that she engaged in a protected activity.The court reasoned that Title VII prohibits retaliation only when it is motivated by an employee's opposition to discriminatory employment practices, and that Bonn opposed only the police department's policing practices.

Bonn contends that publication of her report was protected activity because the report exposed employment discrimination by the OPD.The appellees respond that Bonn failed to show that the OPD engaged in any unlawful employment practice, and that her retaliation claim fails because Title VII protects only opposition to “any practice made an unlawful employment practice ” by Title VII.See§ 2000e-3(a)(emphasis added).In Clark County School District v. Breeden,532 U.S. 268, 121 S.Ct. 1508, 149 L.Ed.2d 509(2001), the Supreme Court left unanswered the question whether an employee must oppose a practice that actually violates Title VII, or whether § 2000e-3(a) protects an employee when she has a reasonable, good faith belief that she is opposing a practice that violates Title VII, even if the practice is not unlawful.Id. at 270, 121 S.Ct. 1508.Our circuit has applied § 2000e-3(a) more broadly than the plain language might suggest, and held that it covers opposition to “employment actions that are not unlawful, as long as the employee acted in a good faith, objectively reasonable belief that the practices were unlawful.”Barker,513 F.3d at 834(internal quotation omitted);see alsoGilooly v. Mo. Dep't of Health & Senior Servs.,421 F.3d 734, 742(8th Cir.2005)(Colloton, J., concurring in part and dissenting in part).We therefore proceed on the assumption that Bonn's activity was protected if she acted with such a reasonable...