Leslie Crews, et al v. Monarch Fire Protection Dist., et al

Filing

OPINION FILED - THE COURT: William Jay Riley, Lavenski R. Smith and Jane Kelly AUTHORING JUDGE:William Jay Riley (PUBLISHED) [4217228] [13-3070]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-3070
___________________________
Leslie Crews; Cary Spiegel; Michael Davis
lllllllllllllllllllll Plaintiffs - Appellants
v.
Monarch Fire Protection District; Kim Evans; Steve Swyers
lllllllllllllllllllll Defendants - Appellees
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: September 8, 2014
Filed: November 18, 2014
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Before RILEY, Chief Judge, SMITH and KELLY, Circuit Judges.
____________
RILEY, Chief Judge.
Three ex-fire chiefs—Leslie Crews, Cary Spiegel, and Michael Davis
(collectively, chiefs)—appeal the district court’s1 adverse grant of summary judgment
on their procedural due process claims challenging the manner of their terminations.

1

The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.

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The chiefs’ claims focus on the abruptness of the termination decision by Monarch
Fire Protection District’s (Monarch) board of directors (board) and on two board
members’ public statements allegedly damaging the chiefs’ reputations. With
appellate jurisdiction under 28 U.S.C. § 1291, we affirm the grant of summary
judgment.
I.

BACKGROUND
A.
Factual Background
In 2011, the Missouri Court of Appeals upheld a jury verdict against Monarch
in an employment discrimination lawsuit filed by some of Monarch’s female
firefighters. See Kessler v. Monarch Fire Prot. Dist., 352 S.W.3d 677 (Mo. Ct. App.
2011) (per curiam). Four days after the decision was filed, Monarch’s board held a
closed, special meeting. Of Monarch’s three directors—Kim Evans, Steve Swyers,
and Robin Harris—only Evans and Swyers were physically present. Harris
participated by telephone, but for this reason was unable to vote. During the meeting,
the board voted to request the resignations of several of Monarch’s high-ranking
officers (including the chiefs) with the understanding that absent a resignation, the
board would vote to terminate each chief’s employment. Charles Billings, Monarch’s
attorney, informed Fire Chief Clifford Biele, Monarch’s first-in-command under the
board, of this decision and provided Chief Biele with resignation letters for the chiefs
to sign.
Chief Biele called Crews and Spiegel (the only two present at the time) into his
office and informed them of the board’s decision. He explained the board voted to
discharge the chiefs in light of the sexual discrimination found to have occurred at
Monarch, and he informed Crews and Spiegel they would be terminated if they did
not sign the resignation letters. Billings also spoke with Crews and Spiegel,
explaining the decision was due to the recent Missouri appellate decision. Crews and
Spiegel asked for time to think over their options, and after spending about a half hour
in their own offices, they returned to Chief Biele and refused to resign. They
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maintained “there was no reason for them to resign” and they were being “wrongfully
terminated.” Two police officers who were standing by then escorted Crews and
Spiegel off the premises.
Chief Biele telephoned Davis, who was off duty at the time, and gave him the
same news and option to resign. After taking time to consider, Davis called back and
refused to resign.
Several days later, the full board met again in an open, public meeting where
it voted to ratify the chiefs’ termination.2 Harris, the third director, voiced his
disagreement, but the termination decision was confirmed nonetheless. During the
public meeting, Swyers and Evans defended their decision by relying on the Missouri
appellate decision’s description of Monarch as creating an environment “of abusive,
hostile discrimination against female employees.”3 Monarch posted the minutes of
that meeting on its official website. The chiefs also identify several online news
articles attributing statements to Swyers and Evans that indicate the chiefs were
discharged for promoting an environment of unacceptable discrimination. The chiefs
never requested a hearing to respond to these statements.
B.
Procedural Background
The chiefs brought this 42 U.S.C. § 1983 action, alleging Evans and Swyers,
individually, and Monarch violated the Fourteenth Amendment’s Due Process Clause
by discharging the chiefs and disparaging their reputations. Monarch, Evans, and
2

The minutes indicate that a closed meeting was held immediately before the
open meeting and the board discussed and voted on the termination in that closed
session. The vote at the public meeting purported to ratify publicly the earlier
decision.
3

While the published per curiam order does not elaborate on the details of the
case, it mentions the court “provided the parties a memorandum setting forth the
reasons for [its] decision.” Kessler, 352 S.W.3d at 677.
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Swyers moved for summary judgment, and the district court granted the motion,
concluding (1) the chiefs, as at-will employees, held no property interest in their
continued employment; (2) the chiefs forfeited their loss-of-liberty interest claim by
failing to request a name clearing hearing; and (3) any constitutional violations were
not “clearly established,” precluding individual liability for Evans and Swyers. The
chiefs timely appealed.
II.

DISCUSSION
A party seeking summary judgment must “show[] that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “We review de novo the district court’s grant of summary
judgment, viewing the evidence and the inferences that may be reasonably drawn from
the evidence in the light most favorable to the nonmoving party.” Petroski v. H & R
Block Enters., LLC, 750 F.3d 976, 978 (8th Cir. 2014).
A.
Due Process
The Fourteenth Amendment pronounces, “No State shall . . . deprive any person
of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV,
§ 1. The chiefs claim Monarch deprived them of their property (continued
employment) and liberty (reputation) interests without affording them due process.4
See Christiansen v. W. Branch Cmty. Sch. Dist., 674 F.3d 927, 934 (8th Cir. 2012)
(characterizing property and liberty interests).
1.
Termination
To establish a constitutionally protected deprivation of property, the chiefs must
show they each held “‘a property right in continued employment.’” Floyd-Gimon v.
Univ. of Ark. for Med. Scis. ex rel. Bd. of Trs. of Univ. of Ark., 716 F.3d 1141, 1146
4

The parties agree Monarch, as a Missouri fire protection district, is a political
subdivision of the state of Missouri. See S. Metro. Fire Prot. Dist. v. City of Lee’s
Summit, 278 S.W.3d 659, 661 (Mo. 2009) (en banc).
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(8th Cir. 2013) (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538
(1985)). Here, the property interest depends on Missouri state law, see id., which
presumes the chiefs were at-will employees, terminable at any time and “‘for any
reason or for no reason,’” Margiotta v. Christian Hosp. Ne. Nw., 315 S.W.3d 342,
345-46 (Mo. 2010) (en banc) (quoting Crabtree v. Bugby, 967 S.W.2d 66, 70 (Mo.
1998) (en banc), overruled on other grounds by Templemire v. W & M Welding, Inc.,
433 S.W.3d 371 (Mo. 2014) (en banc)). Because at-will status under Missouri law
dooms their claim of a property interest, see Hess v. Ables, 714 F.3d 1048, 1053 (8th
Cir. 2013); Greeno v. Little Blue Valley Sewer Dist., 995 F.2d 861, 864 (8th Cir.
1993), the chiefs must overcome this state law presumption.
Admitting they “did not have express employment contracts,” the chiefs rely
on Daniels v. Board of Curators of Lincoln University, 51 S.W.3d 1 (Mo. Ct. App.
2001), to argue Monarch implicitly promised not to terminate the chiefs without good
cause. The chiefs maintain this implicit guarantee modifying their at-will status
stemmed from Monarch’s internal rules and regulations, which refer to the chiefs’
positions as “permanent employees,” implement progressive discipline procedures and
an expected minimum level of disciplinary review, and indicate termination should
only be for cause.
In Daniels, the appeals court “address[ed] whether the [employer’s] customs,
practices and de facto policies established a property interest in” continued
employment for the employee. Daniels, 51 S.W.3d at 7. The court concluded the
employer’s historical practices and employee handbook implicitly “promise[d] that
termination would not occur without good cause” and this understanding between
employer and employee “was the genesis of a property interest protected by the 14th
Amendment.” Id. at 10. The Daniels court reached this conclusion by relying
primarily on Winegar v. Des Moines Independent Community School District, 20
F.3d 895, 899 (8th Cir. 1994), and Perry v. Sindermann, 408 U.S. 593, 602-03 (1972),
for the proposition that under the Due Process Clause, “[a] property interest in
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employment can . . . be created by implied contract, arising out of customs, practices,
and de facto policies,” Winegar, 20 F.3d at 899. See Daniels, 51 S.W.3d at 7-8.
The Daniels court and the chiefs’ reliance on these cases is misplaced. Winegar
establishes only that a constitutionally protected interest “can . . . be created by
implied contract,” allowing this as one of many methods by which state law might
establish a property interest. Winegar, 20 F.3d at 899 (emphasis added). The Perry
decision similarly reminds readers that its holding did not find a “legitimate claim of
entitlement to job tenure” because “‘[p]roperty interests . . . are not created by the
Constitution. Rather, they are created and their dimensions are defined by existing
rules or understandings that stem from an independent source such as state law.’”
Perry, 408 U.S. at 602 n.7 (omission in original) (quoting Bd. of Regents of State
Colls. v. Roth, 408 U.S. 564, 577 (1972)). These cases only show the potential
breadth of the Fourteenth Amendment’s use of the term “property” if such property
interests are created by some independent source. We may not—as the chiefs might
have us do—circumvent the state law inquiry critical to determining whether a
property interest exists: whether, under Missouri law, the chiefs remained at-will
employees, terminable at any time. See Bishop v. Wood, 426 U.S. 341, 344 (1976)
(“A property interest in employment can, of course, be created by ordinance, or by an
implied contract. In either case, however, the sufficiency of the claim of entitlement
must be decided by reference to state law.”).
In Missouri, an employee can be terminated at the will of his employer unless
a valid employment contract—complete with “offer, acceptance, and bargained for
consideration”—states otherwise. Johnson v. McDonnell Douglas Corp., 745 S.W.2d
661, 662 (Mo. 1988) (en banc); see also Doran v. Chand, 284 S.W.3d 659, 664 (Mo.
Ct. App. 2009) (requiring these elements for an employment contract and explaining
an “offer to modify an employee’s at will status must be clear and definite”). Despite
the chiefs’ contentions, the simple existence of Monarch’s internal rules does not
imply an enforceable employment contract. See Greeno, 995 F.2d at 864. In Johnson,
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the Missouri Supreme Court held an employer’s unilateral publication of employee
handbooks or internal rules and regulations does not constitute an offer to modify an
employee’s at-will status, and therefore fails to do so, where the handbook amounts
to nothing more than “an informational statement of” the employer’s “self-imposed
policies.” Johnson, 745 S.W.2d at 662.
Here, Chief Biele retained the authority to interpret Monarch’s rules, and past
practices show the board amended the rules of its own accord. See, e.g., Johnson, 745
S.W.2d at 662 (noting the employer retained interpretive and amendatory power).
There is no evidence the chiefs or other Monarch employees negotiated the provisions
of the rules during their hiring processes or that employees approved or negotiated the
board’s changes. Nothing on the record shows the elements of an enforceable
contract. Even assuming the rules were once officially adopted by the board, the rules
appear to be nothing more than a set of unilateral, “self-imposed policies,” and “a
reasonable at will employee could not interpret its distribution as an offer to modify
his at will status.” Id.; see also Greeno, 995 F.2d at 864 (recognizing “[t]he Missouri
Supreme Court has held that employee handbooks cannot alter or modify employment
at will status” (citing Johnson, 745 S.W.2d at 663)). Thus, the chiefs remained at-will
employees.
The chiefs confront Johnson by urging its holding is outmoded and claiming the
court of appeals decision in Daniels represents a trend in Missouri toward recognizing
less formal means of excepting employees from at-will status. Daniels, they maintain,
is how the Missouri Supreme Court would today address the impact of internal
policies on the at-will doctrine. History belies this contention. The chiefs fail to cite
any other Missouri decision concluding employer policies or customs override the atwill presumption. Our own research reveals only one opinion, in the nearly fourteen
years since Daniels, which can be seen as relying, at least partially, on Daniels’s
approach. See Kixmiller v. Bd. of Curators of Lincoln Univ., 341 S.W.3d 711, 715
(Mo. Ct. App. 2011). On the other hand, the Missouri Supreme Court holds true to
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its rule that an employment contract is necessary to alter at-will status. See Baker v.
Bristol Care, Inc., ___ S.W.3d. ___, ___, No. SC93451, 2014 WL 4086378, at *3
(Mo. Aug. 19, 2014) (en banc). And Missouri courts of appeals still conclude that
“‘[u]nder Missouri law, employee handbooks generally are not considered contracts
because they normally lack the traditional prerequisites of a contract.’” Johnson v.
Vatterott Educ. Ctrs., Inc., 410 S.W.3d 735, 738 (Mo. Ct. App. 2013) (quoting
McIntosh v. Tenet Health Sys. Hosps., Inc., 48 S.W.3d 85, 89 (Mo. Ct. App. 2001));
accord Doran, 284 S.W.3d at 664. We see no new trend and no reason to deviate from
Missouri’s long established at-will and employment contract rules.
Because the chiefs were terminable at the will of their employer, they had no
property interest in their continued employment under the Fourteenth Amendment.
See Hess, 714 F.3d at 1053.
2.
Disparaging Remarks
Having no property interest, at-will employees are only entitled to a hearing in
connection with their discharge if the employer “creates and disseminates a false and
defamatory impression about the at-will employee in connection with the discharge.”
Speer v. City of Wynne, Ark., 276 F.3d 980, 984 (8th Cir. 2002). To prevail on this
liberty interest claim, the chiefs “must demonstrate: ‘(1) an official made a defamatory
statement that resulted in a stigma; (2) the defamatory statement occurred during the
course of terminating the employee; (3) the defamatory statement was made public;
and (4) an alteration or extinguishment of a right or legal status.’” Crooks v. Lynch,
557 F.3d 846, 849 (8th Cir. 2009) (citation omitted) (quoting Brown v. Simmons, 478
F.3d 922, 923 (8th Cir. 2007)). To recover for the lack of a post-termination name
clearing hearing, the chiefs also “must prove [they] sought one before litigation.”
Winskowski v. City of Stephen, 442 F.3d 1107, 1112 (8th Cir. 2006). The chiefs’
claim fails from the start, because they have not identified any admissible evidence
containing a sufficiently stigmatizing statement.

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a.
Admissible Evidence
At summary judgment, the requisite “genuine dispute,” Fed. R. Civ. P. 56(a),
must appear in admissible evidence. See Nooner v. Norris, 594 F.3d 592, 603 (8th
Cir. 2010). As evidence of Evans’s and Swyers’s injurious statements, the chiefs offer
the minutes of the open Monarch board meetings and news media articles purporting
to quote or paraphrase Evans and Swyers. The newspaper articles are “‘rank
hearsay’” that do not fit a hearsay exception. Id. (quoting Miller v. Tony & Susan
Alamo Found., 924 F.2d 143, 147 (8th Cir. 1991)); see also Jones v. McNeese, 746
F.3d 887, 899 (8th Cir. 2014). While the allegedly defamatory statements themselves
may not be hearsay, see Fed. R. Evid. 801(c)(2), (d)(2)(A), the second level—each
newspaper’s out-of-court assertion that Evans and Swyers in fact made these
statements—is hearsay. See Jones, 746 F.3d at 899; Nooner, 594 F.3d at 603. We
will consider only the statements in the board meetings’ minutes.
b.
Stigmatization
The chiefs challenge statements made in two public board meetings. In one of
the meetings, Swyers justified the decision to terminate the chiefs by explaining
Monarch had “created an atmosphere, as stated in the Appellate Court, of abusive,
hostile discrimination against female employees.” At other points during the
meetings, Swyers explained to the board and the public that the Missouri Court of
Appeals had described Monarch’s workplace as “hostile, pervasively discriminating
and abusive.” Evans similarly quoted the Missouri court’s decision as stating “[t]he
harassment was evasive [sic] enough to create an abusive work environment.” Evans
explained the board does not “tolerate an abusive work environment” and Monarch
“do[es] not promote discrimination in [its] workplace.” According to Evans, the
chiefs’ terminations sent this message.
“For a defamatory statement to be actionable under § 1983, it must go beyond
‘alleging conduct [by the plaintiff] that fails to meet professional standards’” and
instead “must ‘damage[] a person’s standing in the community or foreclose[] a
person’s freedom to take advantage of other employment opportunities.’” Jones, 746
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F.3d at 898 (alterations in original) (quoting Raposa v. Meade Sch. Dist. 46-1, 790
F.2d 1349, 1354 (8th Cir. 1986)). “The stigma must be significant, and it usually
involves allegations of dishonesty, immorality, racism, or a similar characterdemeaning charge.” Howard v. Columbia Pub. Sch. Dist., 363 F.3d 797, 802 (8th Cir.
2004). We have “distinguished claims of general misconduct or unsatisfactory
performance from claims involving direct dishonesty, immorality, criminality or
racism.” Stodghill v. Wellston Sch. Dist., 512 F.3d 472, 477 (8th Cir. 2008)
(emphasis added).
In Mascho v. Gee, 24 F.3d 1037, 1039 (8th Cir. 1994), the employer publicly
accused a supervisor of “not performing the functions of a supervisor” and “fail[ing]
to comply with the spirit of the drug-free workplace policy by failing to report
suspected drug usage.” Though the supervisor was said to have looked the other way
when confronted with criminal conduct, “we characterized this as an accusation of
unsatisfactory performance”—he was just an inept supervisor. Stodghill, 512 F.3d at
477 (discussing Mascho). In Stodghill, a school administrator claimed to be
stigmatized by statements that in recent years “[c]heating had occurred in” his school
district. Id. We reasoned this statement was “not a direct assault on [the
administrator’s] honesty,” but instead “challenge[d the administrator’s] performance
in effectively overseeing the district”—the accusation “simply stated cheating
occurred on his watch.” Id.
As in Stodghill and Mascho, Evans and Swyers focused on the discriminatory
environment of the fire district and on the chiefs’ failure to stop the discrimination or
implement effective anti-discrimination policies. We find no instance in which either
director accused the chiefs of direct discrimination or harassment, nor is there any
clear statement that any of the chiefs condoned the harassment for which they were
fired. In every instance of alleged defamation, neither Evans nor Swyers purported
to assess independently the character or conduct of the chiefs, because each only

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paraphrased the Missouri court’s description of the workplace. There was no stigma
sufficient to deprive the chiefs of a liberty interest.
B.
Individual Capacity Claims
The chiefs’ individual capacity claims against Swyers and Evans allege the
same violations of the Fourteenth Amendment. Having found no constitutional
deprivation, Swyers and Evans are entitled to qualified immunity. See Hawkins v.
Gage Cnty., Neb., 759 F.3d 951, 956 (8th Cir. 2014).
III.

CONCLUSION
For these reasons, we affirm.
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