Jamie Mahm v. Jefferson County, State of Missouri

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.”

1 Hon. Nannette A. Baker, United States Magistrate Judge for the Eastern

District of Missouri, to whom the case was referred for final disposition by consent

of the parties under 28 U.S.C. § 636(c).

-2-

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 (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 (1985). With the motivating-factor

extension, Langley clarifies:

-3-

[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 (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

-4-

that the district court applied the mixed-motive analysis from McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (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).

-5-

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 (and in line with conventional practice) that a defendant seeking to

prevail at summary judgment must show a reasonable factfinder either would have to

reject the plaintiff’s claim on the merits or accept its affirmative defense.”); McCue

v. Bradstreet, 807 F.3d 334, 346 (1st Cir. 2015) (“The Mt. Healthy defense, at the

summary judgment stage, requires [the employer] to show that the record would

-6-

compel a reasonable jury to find that the adverse action would have occurred anyway

. . . .”).

III.

Mahn argues that the district court erred in ruling that Howard and Reuter

established that she “would have been terminated in any event” for reasons besides

her political affiliation. In analyzing an employer’s Mt. Healthy defense:

The key inquiry at summary judgment is whether Defendants can

show—with all reasonable inferences drawn in [the plaintiff’s]

favor—that they had a lawful reason to terminate her, that they would

have used that lawful reason to terminate her even if her political

affiliation had not been a factor, and that there is no genuine dispute of

material fact on these issues.

Reyes-Orta v. Puerto Rico Highway & Transp. Auth., 811 F.3d 67, 77 (1st Cir.

2016). See generally Jones, 664 F.3d at 270 (“We find the First Circuit’s test on First

Amendment discrimination to be well reasoned, based on Supreme Court precedent,

and utilized in a similar manner by other circuits.”).

A.

The district court explained that Mahn did not “adequately refute[] the evidence

that she made numerous docketing errors, the Clerk’s office received complaints about

her work from judges, other court staff, and the public, and that Mahn received

notification about these performance issues.” A supervisor, Mike Bone, “averred that

during the time he supervised Mahn, she ‘consistently exhibited poor work

performance,’ ‘was not doing her job,’ and ‘was pushing her work off on other

clerks.’” The evidence showed “that these performance issues occurred before

Mahn’s alleged discussion with Howard Wagner in July 2014 and the 2014 primary

-7-

election, including documentation of performance issues in 2013.” Mahn asserts that

her supervisor “Theresa Cusick was not a good supervisor” and that her supervisor

Donna Reece “did not complain about her work.” The district court ruled these

assertions to be “insufficient in light of the evidence from the personnel file regarding

her work performance.”

True, Mahn had performance issues in 2013. There is also evidence that she

had performance issues shortly before and shortly after the August 2014 primary.

Despite the strength of this evidence of poor performance, the “Mt. Healthy defense,

at the summary judgment stage, requires [the employer] to show that the record would

compel a reasonable jury to find that the adverse action would have occurred anyway,

not merely that such action would have been warranted anyway.” McCue v.

Bradstreet, 807 F.3d 334, 346 (1st Cir. 2015).

Howard and Reuter have not established Howard would have terminated Mahn

anyway for her performance issues. Without evidence showing Mahn’s performance

would have indisputably caused her termination, Howard and Reuter were not entitled

to summary judgment under Mt. Healthy. See Reyes-Orta, 811 F.3d at 77 (“assuming

without deciding that Defendants had a lawful reason to terminate Reyes–Orta . . .

summary judgment was not appropriate because there is a genuine dispute of material

fact as to whether Defendants would have terminated her absent political factors.”).

B.

Howard tries to avoid remand by asserting qualified immunity. “The doctrine

of qualified immunity protects government officials ‘from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Pearson v. Callahan, 555

U.S. 223, 231 (2009), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A

public official is entitled to qualified immunity unless (1) “the official violated a

-8-

statutory or constitutional right,” and (2) “the right was ‘clearly established’ at the

time of the challenged conduct.” Ashcroft v. al–Kidd, 563 U.S. 731, 735 (2011). The

district court did not rule on this issue. The district court may consider it on remand.

See Cody v. Weber, 256 F.3d 764, 769 n.2 (8th Cir. 2001) (“We decline the prison

officials’ invitation to affirm the entry of summary judgment on the alternative

grounds of qualified immunity. The district court did not rule on that issue in the first

instance, but may consider the defense upon remand.”).

C.

Reuter—sued only in his official capacity for equitable relief—tries to prevent

remand by asserting Eleventh Amendment immunity. Mahn counters that the

Eleventh Amendment does not bar “equitable, prospective relief” against a state

official.

The Eleventh Amendment says: “The Judicial power of the United States shall

not be construed to extend to any suit in law or equity, commenced or prosecuted

against one of the United States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.” The Supreme Court has held that under Ex Parte

Young, 209 U.S. 123 (1908), the amendment does not prohibit “certain suits seeking

declaratory and injunctive relief against state officers.” Idaho v. Coeur d’Alene

Tribe, 521 U.S. 261, 269 (1997). Specifically, “the Ex Parte Young doctrine describes

an exception to Eleventh Amendment immunity for a state official where the relief

sought is prospective and not compensatory.” Heartland Acad. Cmty. Church v.

Waddle, 427 F.3d 525, 530 (8th Cir. 2005).

Against Reuter, Mahn “seeks declaratory relief that her employment was

terminated in violation of the First Amendment of the United States Constitution, and

the remedy of reinstatement to her position as a county clerk of the 23rd Judicial

Circuit.” Neither the declaratory relief claim nor the reinstatement remedy are

-9-

compensatory. “The goal of reinstatement . . . is not compensatory; rather, it is to

compel the state official to cease her actions in violation of federal law and to comply

with constitutional requirements.” Elliott v. Hinds, 786 F.2d 298, 302 (7th Cir. 1986).

The Eleventh Amendment does not bar the relief of reinstatement. Treleven v.

University of Minnesota, 73 F.3d 816, 819 (8th Cir. 1996) (“to the extent that the

District Court, basing its decision on the Eleventh Amendment, granted summary

judgment for Kidwell on Treleven’s § 1983 claim for injunctive relief in the form of

reinstatement, the judgment must be reversed.”). In fact, “the great weight of case

authority clearly supports treating reinstatement as an acceptable form of prospective

relief that may be sought through Ex parte Young.” Nelson v. University of Texas at

Dallas, 535 F.3d 318, 322 (5th Cir. 2008) (collecting cases from the Second, Third,

Fourth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits). The Eleventh Amendment

does not prevent remand.

IV.

Mahn challenges the grant of summary judgment for Wes and Jefferson County.

“In a claim under § 1983, there must be evidence of a causal connection between the

misconduct complained of and the official sued.” Naucke v. City of Park Hills, 284

F.3d 923, 929 (8th Cir. 2002). “This circuit has consistently recognized a general rule

that, in order for municipal liability to attach, individual liability first must be found

on an underlying substantive claim.” Moore v. City of Desloge, Mo., 647 F.3d 841,

849 (8th Cir. 2011) (citation omitted).

The district court ruled that Mahn’s claim failed on causation:

[T]here is no evidence that Wes Wagner or Jefferson County had any

authority to terminate Mahn’s employment or were personally involved

in the decision to terminate her employment. There is no evidence that

Wes Wagner or anyone representing Jefferson County told Howard

Wagner that Mahn voted in the Republican primary by absentee ballot.

-10-

Mahn’s claims against these defendants are based on unsubstantiated

speculation.

Mahn disagrees. She believes that she presented “pretty good evidence” that Wes told

Howard how she voted, leading to her dismissal. She relies on these alleged

statements from Howard: (1) “I know how you vote. I don’t see the ballots, but I

know how you vote”; and (2) “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.” She also notes that

Howard “mentioned working someplace previously [where] two employees who were

under him made sure he knew that they voted and he said little did they know that he

already knew that they voted and how they voted.”

Based on these statements, Mahn concludes that “the evidence demonstrates

that Wes Wagner told Howard Wagner how Jamie Mahn had voted in the primary

election.” But—as conceded in her deposition—she points to only “speculation” that

Wes told Howard how she voted. As the district court noted, “Wes Wagner averred

in an affidavit that he did not know Mahn pulled a Republican absentee ballot . . . or

that she voted in the Republican primary election,” and that “he did not tell Howard

Wagner that Mahn voted by absentee ballot in the Republican primary election.”

Mahn “produced no evidence to counter Wes Wagner’s affidavit or testimony

regarding the same.” Nor does she direct this court to such evidence. She cites only

“speculation, conjecture, or fantasy,” which are insufficient to overcome a

summary-judgment motion. Mann, 497 F.3d at 825.

Mahn also argues that Wes’s and Jefferson County’s lack of authority to

terminate her is irrelevant. She relies on this court’s decision in Naucke. There, a city

administrator feuded with three city employees, threatening to terminate two of them

if they did not censure the third. Naucke, 284 F.3d at 926. After being terminated,

the two employees won a jury verdict against the city administrator on a § 1983

-11-

retaliation claim. Id. On appeal, the administrator challenged the sufficiency of the

evidence, arguing that “it was the City Council or other members of city government

who made the employment decisions, and his involvement was limited to ministerial

acts, i.e., drafting letters for others.” Id. at 929. This court disagreed: “the jury could

reasonably have concluded [that the city administrator] improperly influenced the

decision-making process, and was able to make good on his threat to have [the

employees] terminated.” Id.

Under Naucke, a state actor can—in some situations—be subject to § 1983

liability for retaliation where that actor “improperly influenced the decision-making

process.” Id. Besides her speculation that Wes told Howard how she voted, Mahn

has not presented any evidence that Wes improperly influenced the decision-making

process. The district court did not err. See Mann, 497 F.3d at 825.

*******

The judgment is affirmed in part, reversed in part, and the case remanded for

proceedings consistent with this opinion.