The full case caption appears at the
end of this opinion. Ronald Martin (“Martin”), former Director of Public Safety for the City of DesPeres Department of Public Safety (“DPS”), appeals the district court’s
[FOOTNOTE 2] denial of hisrequest for qualified immunity in this civil rights action filed by R. Scott Sexton(“Sexton”) and Kris Kistler (“Kistler”). We affirm the district court’s ruling. I. BACKGROUND Sexton and Kistler are former Public Safety Officers for the DPS. The DPSprovides police, fire, and ambulance services to the residents of the City of Des Peres,Missouri. Martin served as the Director of Public Safety for the DPS during the entireperiod of Sexton’s and Kistler’s employment. Immediately below Martin in thedepartment hierarchy were William Bridges and Keith Krumm, both of whom held the rank of Captain. The DPS was originally located at 1019 North Ballas Road in the City of DesPeres (“the old building”). In approximately 1974, the DPS began recording telephoneconversations that took place in the DPS building. Martin asserts conversations wererecorded for purposes of security, safety, and quality control. The recording devicewas located in the dispatch area of the building and recorded telephone and radioconversations twenty-four hours a day. The recording was done by instrument rather than by line; that is, every conversation that took place on a particular telephone wasrecorded, regardless of which line was being used on that telephone. All the telephonesin the building were recorded except for the telephone in the kitchen. The kitchentelephone was reserved for Public Safety Officers to make private calls to their familiesor to make other personal calls while on duty. In July of 1992, the DPS moved into a new building. Like the old building, thenew building utilized a recording device which recorded incoming and outgoingtelephone calls. Unlike the old building, however, the recording in the new buildingwas done by line rather than by telephone, and every line was recorded, including theprivate line in the kitchen. Sexton and Kistler maintain that the Public Safety Officerswere not notified that their conversations were being recorded.On April 8, 1995, Kistler drove his police vehicle through a supermarketwindow. An investigation was conducted and on October 17, 1995, Kistler wascharged with several city regulatory violations. On October 22, 1995, Sexton and Kistler investigated the telephone recordingsystem and discovered that the telephone in the kitchen was being recorded. OnOctober 24, 1995, Sexton, Kistler, and their attorney went to city hall to disclose to thepublic the private line in the DPS building was being recorded illegally and request thatit be taken off the recording system.
[FOOTNOTE 3] On October 26, 1995, the recording of the privateline ceased. Kistler was terminated October 30, 1995, and Sexton was terminated December11, 1995. Martin asserts that he recommended Sexton’s termination because Sextonfailed to account for his activities on October 22, 1995, and he failed to follow directorders of superiors on that same date. Martin contends that he recommended Kistler’stermination for gross negligence in the operation of a motor vehicle on April 8, 1995,the failure to obey and promptly execute orders of superiors, and sleeping on duty.Their terminations were affirmed after hearings by the City of Des Peres Board ofAldermen. Sexton and Kistler subsequently brought a six-count complaint
[FOOTNOTE 4] whichasserted that the City of Des Peres and Martin, among others, placed an illegal wiretapand illegally recorded private telephone conversations on a telephone designated forpersonal calls. This appeal concerns Count II of the plaintiffs’ Third Amended Complaint. InCount II, Sexton and Kistler filed a claim pursuant to 42 U.S.C. � 1983, asserting thatMartin improperly recommended the plaintiffs’ termination in retaliation for theexercise of their First Amendment free speech rights – namely, making public theCity’s potentially illegal wiretap.
[FOOTNOTE 5] In a motion for summary judgment, Martin soughtprotection from liability under the doctrine of qualified immunity. After the districtcourt denied Martin’s claim of qualified immunity as to plaintiffs’ retaliatory dischargeclaims, Martin renewed his claim of qualified immunity in a supplemental motion forsummary judgment. The district court again rejected his request, and Martin appealsthe district court’s ruling. II. DISCUSSION “A district court’s denial of a motion for summary judgment based on qualifiedimmunity is immediately appealable.” Collins v. Bellinghausen, 153 F.3d 591, 595 (8 thCir. 1998). We review the district court’s denial of summary judgment de novo,viewing the evidence in the light most favorable to the nonmoving party. Id.Under the doctrine of qualified immunity, state actors are protected from civilliability when “their conduct does not violate clearly established statutory orconstitutional rights of which a reasonable person would have known.” Harlow v.Fitzgerald, 457 U.S. 800, 818 (1982) (internal quotations omitted); McCaslin v.Wilkins, 183 F.3d 775, 778 (8 th Cir. 1999). The qualified immunity inquiry is a two-stepprocess. First, this Court must ascertain whether the plaintiffs have asserted aviolation of a constitutional or statutory right. See Munz v. Michael, 28 F.3d 795, 799(8 th Cir. 1994) (citing Beck v. Schwartz, 992 F.2d 870, 871 (8 th Cir. 1993) (percuriam)). Second, we must determine whether that constitutional right was clearlyestablished at the time that the plaintiffs were discharged. See Munz, 28 F.3d at 799.”This court has . . . taken a broad view of what constitutes ‘clearly established law’ forthe purposes of a qualified immunity inquiry. . . ” Boswell v. Sherburne County, 849F.2d 1117, 1121 (8 th Cir. 1988), cert. denied, 488 U.S. 1010 (1989). “ For a right to bedeemed clearly established, the ‘contours of the right must be sufficiently clear that areasonable official would understand that what he is doing violates that right.’”Buckley v. Rogerson, 133 F.3d 1125, 1128 (8 th Cir. 1998) (quoting Anderson v.Creighton, 483 U.S. 635, 640 (1987)). However, “[i]t is only necessary that theunlawfulness of the official’s act [be] apparent in view of pre-existing law.” Hall v.Lombardi, 996 F.2d 954, 958 (1993), cert. denied, 510 U.S. 1047 (1994). Therefore,if the law claimed to have been violated was clearly established, the qualified immunitydefense ordinarily fails, “since a reasonably competent public official should know thelaw governing his conduct.” Harlow, 457 U.S. at 818-19. A Plaintiffs have properly alleged a violation of a constitutional right — Martinrecommended their discharge in retaliation for exercising their right to free speech.See, e.g., Rankin v. McPherson, 483 U.S. 378, 383 (1987) (“[i]t is clearly establishedthat a State may not discharge an employee on a basis that infringes that employee’sconstitutionally protected interest in freedom of speech.”). The dispute in this casecenters around the Court’s second inquiry – whether the plaintiffs’ free speech rightswere clearly established at the time of discharge. To determine whether this right wasclearly established, the Court must first determine whether the speech is protected bythe First Amendment. This determination is also a two-step inquiry. See Kincade v.Blue Springs, Mo., 64 F.3d 389, 395 (8 th Cir. 1995), cert. denied, 517 U.S. 1166(1996). The threshold question this Court must answer is whether the speech can befairly characterized as constituting “speech on a matter of public concern.” Id.(quoting Connick v. Myers, 461 U.S. 138, 147-148 (1983)). If this Court finds thespeech to be a matter of public concern, we turn to the second step, the Pickeringbalancing test, which “involves balancing the employee’s right to free speech againstthe interests of the public employer.” Id. (citing Pickering v. Board of Educ., 391 U.S.563, 568 (1968)). Pickering requires we strike a “balance between the interests of the[employee], as a citizen, in commenting upon matters of public concern and the interestof the [public employer] in promoting the efficiency of the public services it performsthrough its employees.” Pickering, 391 U.S. at 568. (1) Threshold Inquiry – “Matters of Public Concern” As to the first step of the inquiry – whether it was clearly established thatSexton’s and Kistler’s speech was a matter of public concern at the time they wereterminated – this Court has held that speech concerning potential misconduct by publicofficers is a matter of public concern. See Barnard v. Jackson County, Mo., 43 F.3d1218, 1225 (8 th Cir.), cert. denied, 516 U.S. 808 (1995); Brockell v. Norton, 732 F.2d664, 668 (8 th Cir. 1984). In Barnard, this Court found “[s]peech disclosing allegationsof criminal activity allegedly committed by elected public officials and allegations ofofficial misconduct by an incumbent elected official are matters occupying the highest rung of hierarchy of First Amendment values . . . Such speech is of inherent publicconcern.” 43 F.3d at 1225 (internal quotations omitted). Likewise, in Brockell thisCourt found allegations that a police officer improperly possessed a copy of thecertification test, prior to his taking the test, were a matter of public concern. See 732F.2d at 668. The Brockell Court reasoned that the “public has a vital interest in theintegrity of those commissioned to enforce the law.”
[FOOTNOTE 6] Id. Other courts have also held that allegations of potential criminal conduct are amatter of public concern. See, e.g., Voigt v. Savell, 70 F.3d 1552, 1562 (9 th Cir. 1995),cert. denied, 517 U.S. 1209 (1996) (noting “statements regarding criminal misuse ofpublic funds, wastefulness, and inefficiency in managing and operating governmententities [are] matters of public concern.”); Walter v. Morton, 33 F.3d 1240, 1243 (10 thCir. 1994) (finding “statements of perceived illegal activities [by the Chief of Police]are a matter of concern for the community”); Gillum v. Kerrville, 3 F.3d 117, 120-21(5 th Cir. 1993), cert. denied, 510 U.S. 1072 (1994) (noting “[t]o be sure, corruption in[a police] internal affairs department is a matter of public concern”); Brawner v.Richardson, Tex., 855 F.2d 187, 190 (5 th Cir. 1988) (holding that “[t]he disclosure ofmisbehavior by public officials is a matter of public interest and therefore deservesconstitutional protection, especially when it concerns the operation of a policedepartment”); Solomon v. Royal Oak Township, 842 F.2d 862, 865 (6 th Cir. 1988).-8-(holding that “speech disclosing public corruption is a matter of public interest andtherefore deserves constitutional protection”); McMurphy v. Flushing, 802 F.2d 191,196 (6 th Cir. 1986) (stating “[o]bviously, the public is concerned with how a policedepartment is operated, and efforts to give public exposure to alleged misconduct areprotected.”). Martin contends that there is no case law specifically holding that speechannouncing a city official’s potentially illegal recording of private telephoneconversations is a matter of public concern. Therefore, he maintains, a reasonableofficial in his position would not have known he was violating the plaintiffs’constitutional rights by terminating them for such conduct. Martin’s strict reading ofthe “clearly established law” requirement is unsupported by the case law. Indeed, inBuckley, this Court explained that “[i]n order to determine whether a right is clearlyestablished, it is not necessary that the Supreme Court has directly addressed the issue,nor does the precise action or omission in question need to have been held unlawful.In the absence of binding precedent, a court should look to all available decisional law,including decisions of state courts, other circuits and district courts.” 133 F.3d at 1128(citing Norfleet v. Arkansas Dep’t of Human Services, 989 F.2d 289, 291 (8 th Cir.1993)). In examining our own case law, as well as that of other circuits, we concludethat at the time the plaintiffs were terminated, the law was clearly established that thedisclosure of potential illegal conduct of public officials was a matter of public concern. (2) The Pickering Balance Test Having ascertained it was clearly established that plaintiffs’ speech was a matterof public concern at the time of their discharge, we turn to the second step of thejudicial inquiry – the Pickering balancing test. As stated earlier, under this test we mustbalance the interest of Sexton and Kistler, as citizens, “in commenting upon matters ofpublic concern [against] the interests of the State, as an employer, in promoting theefficiency of the public services it performs through its employees.” Shands v. Kennett,.-9-993 F.2d 1337, 1342 (8 th Cir. 1992), cert. denied, 510 U.S. 1072 (1994) (quotingPickering, 391 U.S. at 568). “Factors relevant in conducting this test are whether thespeech creates disharmony in the workplace, impedes the speaker’s ability to performhis duties or impairs working relationships with other employees.” Kincade, 64 F.3dat 397. Before the Court commences the Pickering balancing test, however, it is criticalto determine whether the defendant has produced sufficient evidence that the speechhad an adverse effect on the efficiency of the employer’s operations. See Burnham,119 F. 3d at 678. In other words, to put the Pickering balancing test at issue, the publicemployer must proffer sufficient evidence that the speech had an adverse impact on thedepartment. See id. The more the employee’s speech reflects matters of publicconcern, the greater the employer’s showing must be that the speech was disruptivebefore the speech can be punished. See id. at 679. To this end, in his supplementary motion for summary judgment, Martin offeredhis own affidavit and the deposition testimony of the City Administrator, DouglasHarms, to demonstrate that the speech adversely affected Martin and the department.Specifically, Martin states in his affidavit that “[s]uch reporting adversely affecteddepartment morale because the supervisors were angry — and expressed their angerdirectly to me – that Sexton and Kistler had taken their criticism of the recording of thekitchen line outside the Department’s normal chain of command. Further, by accusingthe Department of violating their constitutional rights, and directing that accusation tothe press, such conduct damaged the Department’s reputation and created significantpolitical problems.” Martin is correct that when a public employee’s exercise of free speech rightaffects the morale of the work force and damages the program’s reputation, it mayaffect the efficiency of the operation of the public service. See Grantham v. Trickey,21 F.3d 289, 295 (8 th Cir. 1994). However, “a simple assertion by the employer thatcontested speech affected morale, without supporting evidence,” is not enough tosupport a grant of qualified immunity. Id. at 295 n.4. Mere allegations of disruptionare insufficient to put the Pickering balance at issue. See Kincade, 64 F.3d at 398.Thus, while DPS supervisors’ anger may have impaired working relationships betweenthe supervisors and Martin, Martin does not say that in his deposition. Indeed, Martinhas not provided any evidence in support of these conclusory statements. See Kincade,64 F.3d at 398-99 (finding mere assertion that contested speech “adversely affected theefficiency of City’s operations and substantially disrupted the work environment” withno supporting evidence is insufficient to place Pickering balance at issue). In furthersupport of his claim of workplace disruption, Martin asserts that “[t]heir reportthreatened my authority with the Board of Alderman to run the office of the Departmentof Public Safety and I eventually resigned.” Yet Harms’ deposition testimony notesthat Martin was not in good political standing with the Board even before this incident,and his termination or requested resignation was inevitable.
[FOOTNOTE 7] Likewise, Harms’ testimony does not bolster Martin’s contention that thedepartment’s efficiency was jeopardized by the actions of Sexton and Kistler. Harms’testimony states only that “some citizens” appeared before the Board to expressoutrage, concern, or support. Yet, Harms could not discern “how many folks werethere or how many fell on which side of the issue.” Harms said those who spoke were.-11-either “in support of the other officers or upset that the City was in the news.” Harmsdid not testify that Sexton’s and Kistler’s speech damaged the reputation of thedepartment or affected the department’s efficiency. We find that the statements by Martin and Harms are insufficient to put thePickering balance at issue. Martin’s vague and conclusory statements do notdemonstrate with any specificity that the speech created disharmony in the workplace,impeded the plaintiffs’ ability to perform their duties, or impaired working relationshipswith other employees. See Kincade, 64 F.3d at 397-98. A “government employer mustmake a substantial showing that the speech is, in fact, disruptive before the speech maybe punished” and Martin has simply failed to make this showing. Burnham, 119 F. 3dat 680. For these reasons, Martin’s failure to establish workplace disruption is fatal tohis claim of qualified immunity. See id. Even were this Court to apply the Pickering balancing test, Martin’s defense ofqualified immunity would still fail. As previously stated, the Pickering balance testrequires this Court to strike a balance between the plaintiffs’ interest in their speechconveying a matter of public concern and the employer’s interest in promotingefficiency in the workplace. The issue becomes does Martin’s “interest in suppressingthe speech, to purportedly control workplace disruption, outweigh[] plaintiffs’ FirstAmendment rights . . .” Burnham, 119 F.3d at 679. “[W]hen balancing an employee’sinterest against an employer’s interest, the constitutional standard takes proportionalityinto account. ‘[T]he closer the employee’s speech reflects on matters of publicconcern, the greater must be the employer’s showing that the speech is likely to bedisruptive before it can be punished.’” Id. (quoting Jeffries v. Harleston, 52 F.3d 9, 13(2d Cir.), cert. denied, 516 U.S. 862 (1995)). Bearing in mind the issue of proportionality, we examine the juxtaposition ofMartin’s meager showing of workplace disruption and plaintiffs’ interest in revealingpotentially illegal conduct of public employers. As explained supra, speech alleging.-12-potentially illegal misconduct of public officials occupies the “highest rung of FirstAmendment hierarchy.” Barnard, 43 F.3d at 1225. Martin counters plaintiffs’ interestwith mere allegations of disruption, such as their “conduct damaged the Department’sreputation and created significant political problems.” Yet Martin proffers no evidenceto support this claim. For this reason, we find the balance weighs heavily in favor ofthe plaintiffs’ protected speech. Although no case law applying the Pickering balancing test to allegations ofillegal conduct of police officers existed in the Eight Circuit at the time the plaintiffswere discharged, we may look to other jurisdictions in order to determine whether thislaw was clearly established at that time. See Buckley, 133 F.3d at 1129. Our findingthat the plaintiffs’ speech in this case outweighs the public employer’s interest incontaining workplace disruption is consistent with the case law in many jurisdictionsat the time of the plaintiffs’ terminations. See, e.g., Williams v. Kentucky, 24 F.3d1526, 1537 (6 th Cir.), cert. denied, 513 U.S. 947 (1994) (finding where allegations ofillegal conduct of public employers have only minimal effect on the efficiency of theoffice the balance weighs in favor of the speech); Oladeinde v. Birmingham, 963 F.2d1481, 1487 (11 th Cir. 1992), cert. denied, 507 U.S. 987 (1993) (finding defendants’assertions of disruption were not outweighed by plaintiffs’ police officers’ speech);Bieluch v. Sullivan, 999 F.2d 666, 672-73 (2d Cir. 1993), cert. denied, 510 U.S. 1094(1994) (finding allegations that speech concerning town budgets, school constructionand tax expenditures “‘posed a potential threat’ to police operations” was insufficientto outweigh protected speech); Biggs v. Dupo, 892 F.2d 1298, 1303-04 (7 th Cir. 1990)(finding police officer’s interest in critiquing role of politicians in police departmentpolicies outweighed allegations of workplace disruption); Frazier v. King, 873 F.2d820, 827 (5 th Cir.), cert. denied, 493 U.S. 977 (1989) (finding generalized allegationsof disruption at state correctional infirmary does not outweigh plaintiff’s interest inexposing unethical medical practices affecting hundreds of inmates); Wulf v. Wichita,883 F.2d 842, 867 (10 th Cir. 1989) (finding purely speculative allegations of disruptiondo not outweigh police officer’s protected speech); Rode v. G. Dellarciprete, 845 F.2d.1195, 1202 (3d Cir. 1988) (finding employee of police department’s allegations ofracial animus within department did not affect state’s interest in efficiency andperformance of department).Martin correctly asserts that “when Pickering’s fact-intensive balancing test isat issue, the asserted First Amendment right can rarely be considered clearlyestablished for purposes of the Harlow qualified immunity standard.” Grantham, 21F.3d at 293 (internal quotations omitted). We agree that in many free speech cases theoutcome of the Pickering balancing test would be unclear to a reasonable official. Inthe instant case, however, where the employees have spoken out on a matter of greatpublic concern, and the evidence that the speech caused disruption in the workplace isminimal at best, the imprecision of the Pickering balance makes little difference in ourdetermination. We conclude that at the time of the plaintiffs’ termination, the law wasclearly established that the balance would have weighed heavily in favor of theplaintiffs’ exercise of free speech. B. Alternatively, Martin argues that he relied on independent, legal reasons forterminating the plaintiffs’ employment, and he would have reached the same thedecision irrespective of their protected speech activity. Citing Mt. Healthy v. Doyle,429 U.S. 274 (1977), Martin maintains that where there are undisputed facts that apublic official would have carried out the same decision to terminate absent any illegalmotive, he is entitled to qualified immunity as a matter of law.
[FOOTNOTE 8] As an initial matter, we note that to the extent Martin is merely requesting thisCourt to determine whether the facts support his assertion that he discharged theplaintiffs based on legal reasons, his request is denied. Our jurisdiction in the appealof qualified immunity is limited to “abstract issues of law and does not extend toarguments concerning the sufficiency of evidence.” Mueller v. Tinkham, 162 F.3d 999,1002 (8 th Cir. 1998). That is to say, “if what is at issue in the sufficiency determinationis nothing more than whether the evidence could support a finding that particularconduct occurred,” that claim is not immediately reviewable by this Court. SeeBehrens v. Pelletier, 516 U.S. 299, 313 (1996). If, however, a public official isclaiming “on appeal that their actions were objectively reasonable in light of theirknowledge at the time of the incident” their claim of qualified immunity is reviewable.See Lyles v. Barling, 181 F.3d 914, 917 (8 th Cir. 1999) (quoting Mueller, 162 F.3d at1002). In Martin’s appellate brief, his argument reads like a sufficiency of the evidencequestion. He spends the majority of his analysis arguing that the facts giving rise to hislegal, independent grounds are undisputed by the plaintiffs, and they constituteindependent, sufficient grounds for the plaintiffs’ termination. However, at the closeof his argument Martin does state “there is no clearly established law that a reasonableofficial in Chief Martin’s position would have known he was violating plaintiff[s'] FirstAmendment rights by recommending termination.” (emphasis in the original). Martinis entitled to qualified immunity if his actions were “objectively reasonable in light ofthe clearly established law and facts known by the officer at the time of his actions.”McCaslin, 183 F.3d at 778 (quoting Lyles, 181 F.3d at 917); Anderson, 483 U.S. at639 (finding question of whether qualified immunity is warranted generally turns onobjective reasonableness of public employer’s action). Because Martin concludes hisargument in these terms, we find this Court does have jurisdiction to address hisdefense. See McCaslin, 183 F.3d at 778 (finding review appropriate where defendantofficer alleged his decision to use deadly force was objectively reasonable in light ofhis knowledge at the time); Collins, 153 F.3d at 595 (finding review appropriate wheredefendant, a state-employed psychiatrist, alleged her decision to use particularprocedure was objectively reasonable).Martin asserts he recommended the plaintiffs’ termination on the basis oflegitimate, unrelated conduct. Specifically, Martin alleges his decision to terminateSexton was premised on Martin’s claim that Sexton failed to account for his activitiesof October 22, 1995 and failed to follow direct orders of superiors on that same date.As for Kistler, Martin contends that he recommended his termination for grossnegligence in the operation of a motor vehicle, the failure to obey and promptly executeorders of superiors, and sleeping on duty. Martin argues these proffered reasons wentundisputed by the plaintiffs, and he would have recommended the plaintiffs’termination regardless of their protected speech.
[FOOTNOTE 9] However, there is sufficient evidence for a reasonable juror to conclude thatSexton and Kistler were discharged for their disclosure of the wiretap on the privateline and not for the reasons stated by Martin. For example, the record shows that.Martin was aware of the plaintiffs’ exercise of First Amendment protected speech andthat this speech caused Martin some problems personally. Additionally, the timing ofthe terminations is suspiciously close to the protected speech activity in October of1995. Kistler was discharged six days after the disclosure of the wiretap, purportedlyfor an accident that occurred some six months prior. Three days after the disclosureof the wiretap, Martin instigated an investigation into Sexton’s actions. Sexton wasdischarged six weeks later for charges including minor violations such as using hispatrol car to call his attorney in violation of a policy which states department equipmentis not to be used for personal use, and failing to notify his supervisor of hiswhereabouts when he went to his patrol car to call his attorney. Moreover, these twoterminations took place in a department where terminations, by Captain Bridges’ ownaccount, “were not very routine.” There are questions of material fact concerningwhether Martin recommended the plaintiffs’ terminations on the basis of their speechalone or on the basis of some legitimate reason. A question of material fact precludesa grant of qualified immunity. III. CONCLUSION In sum, we agree with the district court’s conclusion that Martin is not entitledto summary judgment based on qualified immunity on plaintiffs’ First Amendmentretaliatory discharge claims.For the reasons stated herein, the district court’s ruling is affirmed. :::FOOTNOTES:::
FN1 The Honorable Michael J. Melloy, United States District Court for the NorthernDistrict of Iowa, sitting by designation.
FN2 The Honorable Lawrence O. Davis, United States Magistrate Judge for theEastern District of Missouri, hearing the case by the consent of the parties.
FN3 The Missouri Wiretap Act, Rev. Mo. Stat. �� 542.400 et seq., prohibits illegalwiretapping, which includes in its definition a person who “[k]nowingly intercepts,endeavors to intercept, or procures any other person to intercept or endeavor tointercept, any wire communication.”
FN4 Count III, which purported to allege a cause of action under 42 U.S.C. � 1985,was dismissed for failure to state a claim.
FN5 Count II also alleges retaliatory discharge based on plaintiffs’ union activities.However, neither party briefed this issue on appeal. Thus, this Court will only addressthe claim as it relates to plaintiffs’ speech concerning the wiretap.
FN6 Martin attempts to distinguish Brockell by noting that the police officer wasterminated after he revealed wrongdoing to a captain, rather than a direct supervisor,which was in fact a violation of the chain of command. See Brockell, 732 F.2d at 665.Martin correctly notes that while the court found discharging an officer for a violationof a chain of command policy is a violation of the First Amendment, the court went onto conclude that the mayor and the city council members asserted a good faith beliefin the reasonableness of their conduct which entitled them to qualified immunity. Id.at 668-69. However, after the Brockell ruling, such a belief would no longer bereasonable because the law is now established that a termination on those groundswould be in violation of the First Amendment.
FN7 Harms’ deposition testimony states that in 1993 “the Board of Aldermen hadexpressed to [Martin] in his performance evaluation and pay raises some dissatisfactionwith the level of his performance of the department for which they held him responsibleand some dissatisfaction of the level of communication between him and electedofficials about the performance of the department.” Harms was asked to suggest toMartin that he explore the option of resigning because of the Board’s dissatisfaction.Thus, according to Harms, the Board of Aldermen was already dissatisfied withMartin’s performance well before the protected speech occurred. Martin apparentlycaused his own political problems with the Board and the allegations of misconduct bySexton and Kistler were merely the last straw.
FN8 Plaintiff Sexton contends Martin failed to raise this claim in the context ofqualified immunity in the district court, and is thus barred from raising it now. Wedisagree. In Martin’s supplementary motion for summary judgment, Martin argues inthe qualified immunity portion of this brief that he “is entitled to qualified immunitybecause it was not clearly established that he could be guilty of unconstitutionalretaliation when he would have recommended plaintiffs’ terminations even had theyengaged in no protected conduct or speech.” While Martin did not rely on Mt. Healthyv. Doyle in making this argument at the district court level, he sufficiently raised theissue such that it was preserved for appeal.
FN9 In making this argument, Martin relies heavily on the district court’s finding thatthe “defendant City had shown by uncontroverted evidence that plaintiffs Sexton andKistler would have been fired, regardless of whether they engaged in their protectedactivity.” Sexton v. Martin, No. 4:95 Civ. 2026 (E.D. Mo. Jan. 21, 1999). Martin’sreliance on this finding by the district court is without merit. The district court’s findingwas based on the notion that the City was unaware of any improper retaliation byMartin at the time the Board of Alderman approved the decision to discharge theplaintiffs. The same can not be said for Martin. Indeed, the district court went on tofind that there is ample evidence that Martin was keenly aware of Sexton’s andKistler’s public criticism of the DPS’ conduct prior to his decision to recommend theirdischarge.
Sexton v. Martin United States Court of Appeals for the Eighth Circuit No. 99-1511 R. SCOTT SEXTON; CYNTHIA W. SEXTON; KRIS KISTLER; PATRICIA KISTLER; GARY DUDLEY; JOSEPH FIORINO; RICHARD POMEROY; JOHN REIFSCHNEIDER; MYRNA DUDLEY; CAROLYN FIORINO; JANICE POMEROY; LEE REIFSCHNEIDER; Plaintiffs/Appellees, v. RONALD MARTIN, Defendant/Appellant; CITY OF DES PERES, MISSOURI Defendant. Appeal From: United States District Court for the Eastern District of Missouri Submitted: December 14, 1999 Filed: April 19, 2000 Before: RICHARD S. ARNOLD and HANSEN, Circuit Judges, and MELLOY,
[FOOTNOTE 1] District Judge.
