Ronda DePriest v. Dennis Milligan

Filing

OPINION FILED - THE COURT: Roger L. Wollman, Michael J. Melloy and Steven M. Colloton AUTHORING JUDGE:Michael J. Melloy (PUBLISHED) [4403236] [15-1365]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1365
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Ronda DePriest
lllllllllllllllllllll Plaintiff - Appellant
v.
Dennis Milligan, individually and in his official capacity
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: January 13, 2016
Filed: May 26, 2016
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Before WOLLMAN, MELLOY, and COLLOTON, Circuit Judges.
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MELLOY, Circuit Judge.
Plaintiff Ronda DePriest filed two consolidated lawsuits against Dennis
Milligan, alleging various gender discrimination and retaliation claims. The district
court1 granted Milligan’s motion for summary judgment as to DePriest’s
1

The Honorable Kristine G. Baker, United States District Judge for the Eastern
District of Arkansas.

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discrimination and retaliation claims and dismissed without prejudice DePriest’s state
constitutional claims. We affirm.
I. Background
Ronda DePriest served as an at-will employee in the Saline County, Arkansas,
Circuit Clerk’s office from 1991 to 2010. She was appointed as Chief Deputy Clerk
in 2002. In this capacity, DePriest handled real estate filings and some personnel and
financial matters. The Chief Deputy Clerk works under and reports to the Circuit
Clerk, who is an elected official in the County. In 2010, Dennis Milligan was elected
Circuit Clerk in a close contest against long-time incumbent Doug Kidd. DePriest
supported Kidd in the election by wearing his campaign shirt and walking in a parade
on his behalf. It is undisputed that when a new Circuit Clerk is elected, he or she must
appoint or reappoint individuals to staff the office. DePriest had been reappointed by
Kidd each time he won an election.
On December 27, 2010, shortly before Milligan took office as Circuit Clerk,
DePriest learned that she would not be retained as an employee under Milligan.
Instead, Milligan hired Jim Harris, an experienced political operative, to fill DePriest’s
position. In contrast to DePriest’s largely administrative role, Milligan envisioned his
Chief Deputy would serve in a chief-of-staff capacity. Notably, Harris was
responsible for managing public relations, advising Milligan, attending political
functions, and performing some of the administrative tasks DePriest had done. At the
time he took office, Milligan had not met DePriest and he contends she was not
someone he could trust in this role. The parties agree that Harris’s job duties are
different from those that DePriest performed as Chief Deputy. However, DePriest
contends that Harris is not as qualified to hold the position because she had nearly
twenty years of experience.

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In 2011, following DePriest’s dismissal, an electronic record manager position
opened in the office. DePriest contends she was qualified for the position and should
have been hired. However, she did not apply for the position because she claims it
was not publicly advertised. Evidence in the record shows the position was advertised
on the County website and the office received nine applications. DePriest does not
rebut this evidence, except to allege she did not see the position posted on the County
website. There is no indication that a vacancy could be filled by an individual who
did not apply for the position.
On April 12, 2012, DePriest filed suit against Milligan in his official and
individual capacities in state court. She claimed Milligan: (1) dismissed her in
retaliation for her political affiliation with Kidd in violation of the First Amendment;
(2) discriminated against her because she is a woman by dismissing her, hiring a less
qualified man, and not allowing her to reapply for another position in violation of
Title VII, the Equal Protection Clause through § 1983, the Government Employee
Rights Act (“GERA”),2 and the Arkansas Civil Rights Act (“ACRA”); and
(3) violated her right to petition the government under Article II, section 4 of the
Arkansas Constitution. Milligan removed the case to federal court. On September 30,
2013, following discovery, the district court granted Milligan’s motion for summary
judgment as to the First Amendment political affiliation claim. The district court
granted a stay as to the GERA and gender discrimination claims to allow DePriest to
submit these claims to the EEOC.3 Subsequently, the EEOC reviewed DePriest’s
2

The GERA is part of the 1991 amendments to the Civil Rights Act. It provides
discrimination protections to state and local government employees who are “chosen
or appointed by a person elected to public office . . . (1) to be a member of the elected
official’s personal staff; (2) to serve the elected official on the policymaking level; or
(3) to serve the elected official as an immediate advisor with respect to the exercise
of the constitutional or legal powers of the office.” 42 U.S.C. § 2000e-16c(a).
3

Claims brought under the GERA follow a different procedural path than most
claims under federal discrimination statutes. After an individual has filed a GERA
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claims twice, concluding both times she did not meet the criteria for coverage under
the GERA. DePriest did not appeal the EEOC’s determination.
In 2013, DePriest applied for two open positions in the Circuit Clerk’s office.
She was among three candidates interviewed for the first position, but was not
interviewed for the second position. Milligan indicated that DePriest was not hired
for either position because she did not have experience with a new computer system
that Milligan had implemented in the office. DePriest contends she was not hired
because she is a woman and because of her pending lawsuit against Milligan. Both
positions were filled by women who had experience with the computer system
because they were currently employed in the Circuit Clerk’s office in other capacities.

complaint with the EEOC, the EEOC “shall determine whether a violation has
occurred and shall set forth its determination in a final order.” 42 U.S.C. § 2000e16c(b)(1). Judicial review is available for “[a]ny party aggrieved by a final order . . .
under chapter 158 of Title 28 [(the Administrative Orders Review Act, 28 U.S.C.
§§ 2341–2353)].” Id. § 2000e-16c(c). The Administrative Orders Review Act
provides judicial review procedures for actions by several federal agencies. See, e.g.,
Nack v. Walburg, 715 F.3d 680, 685–86 (8th Cir. 2013) (noting that the Act applies
to determining the validity of Federal Communications Commission orders). For the
purposes of the GERA, “the [EEOC] shall be an ‘agency’ as that term is used in [the
Act].” 42 U.S.C. § 2000e-16c(c). The few courts that have interpreted the GERA
have concluded that the courts of appeals, rather than the district courts, have
exclusive jurisdiction to review final orders from the EEOC on GERA claims. See
Crain v. Butler, 419 F. Supp. 2d 785, 788 (E.D.N.C. 2005); Stitz v. City of Eureka
Springs, Ark., 9 F. Supp. 2d 1046, 1056 (W.D. Ark. 1998); see also Nack, 715 F.3d
at 686 (“[T]he court of appeals [has] exclusive jurisdiction to determine the validity
of [agency] orders.” (citing 28 U.S.C. § 2342)). To seek judicial review, the
aggrieved individual must “within 60 days after entry [of the final order], file a
petition to review the order in the court of appeals wherein venue lies.” 28 U.S.C.
§ 2344; see also B.J. McAdams, Inc. v. I.C.C., 551 F.2d 1112, 1114 (8th Cir. 1977)
(discussing this provision in the context of another agency covered by the Act).
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On January 16, 2014, while the first lawsuit remained pending, DePriest again
filed suit against Milligan in state court. She claimed Milligan’s failure to hire her in
2013 was in retaliation for her lawsuit against him, which violated the First
Amendment, Title VII, and the ACRA. Milligan again removed the case to federal
court where it was consolidated with the original case. Milligan moved for summary
judgment in the consolidated case on all of the remaining unresolved issues.
In an order addressing the remaining claims in both lawsuits, the district court
granted summary judgment in favor of Milligan as to DePriest’s federal claims and
declined to exercise jurisdiction over her state constitutional law claims. In particular,
the district court concluded DePriest’s gender discrimination claim under the GERA
had no merit because the statute does not apply to her and, even if it did apply, the
district court determined it would not have jurisdiction to review her claim.
Regarding DePriest’s claims under Title VII, the ACRA, and the Equal Protection
Clause through § 1983, the district court determined Milligan’s decision to dismiss
DePriest after adding political and personal loyalty aspects to the Chief Deputy
position did not violate state or federal law. The district court concluded that
DePriest’s argument that she is more qualified than Harris fails to establish Milligan’s
reason was merely a pretext for discrimination. The district court also considered and
granted summary judgment as to DePriest’s gender discrimination claim based on
Milligan’s failure to hire her for the electronic records manager position, for which
she did not apply, in 2011.
Next, the district court turned to DePriest’s claims of retaliation in her second
lawsuit. Regarding DePriest’s claim that Milligan violated the First Amendment
when he retaliated against her for filing a lawsuit against him, the district court
concluded DePriest failed to show that Milligan’s nondiscriminatory reason for not
hiring her was a pretext. Similarly, the district court concluded DePriest failed to
establish a prima facie case of Title VII retaliation because she could not show that her

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lawsuit against Milligan was a determinative factor in not hiring DePriest for the two
positions in 2013. DePriest appeals from this judgment.
II. Discussion
We review a grant of summary judgment de novo, construing the record in the
light most favorable to the nonmoving party. Rickard v. Swedish Match N. Am., Inc.,
773 F.3d 181, 184 (8th Cir. 2014). “To survive summary judgment, a plaintiff ‘must
substantiate [her] allegations with sufficient probative evidence that would permit a
finding in [her] favor on more than mere speculation, conjecture, or fantasy.’” Id.
(quoting Moody v. St. Charles Cnty., 23 F.3d 1410, 1412 (8th Cir. 1994)). We may
affirm an order granting summary judgment “on any basis supported by the record.”
Keefe v. City of Minneapolis, 785 F.3d 1216, 1222 (8th Cir. 2015) (quoting
Saulsberry v. St. Mary’s Univ. of Minn., 318 F.3d 862, 866 (8th Cir. 2003)).
A. First Amendment Claim
DePriest claims Milligan violated the First Amendment by dismissing her from
the Chief Deputy position because of her political affiliations. When the sole reason
for a dismissal is the employee’s political affiliation, we apply the test set forth by the
Supreme Court in Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S.
507 (1980). In such circumstances, “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 v. Hot Spring Cnty., Ark., 393
F.3d 814, 817 (8th Cir. 2005) (quoting Branti, 445 U.S. at 518). In order to survive
summary judgment on a claim of politically motivated dismissal, the plaintiff must
“submit[] sufficient evidence that political affiliation or loyalty was a motivating
factor in the dismissal.” Id. If the plaintiff satisfies this burden, the defendant must
“establish[] either that the political motive is an appropriate requirement for the job,
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or that the dismissal was made for mixed motives and the plaintiff would have been
discharged in any event.” Id. “In general, personal loyalty is ‘an appropriate
requirement’ where the individual ‘reports directly to the [chief executive] and his
duties include public relations and responsibility for . . . long-range planning.’” Id.
at 818 (quoting Johnson v. City of W. Memphis, 113 F.3d 842, 844 (8th Cir. 1997))
(alterations in original).
Milligan seems to concede that he dismissed DePriest from her Chief Deputy
position due to her political affiliations. Thus, the burden shifts to Milligan to prove
political loyalty is an appropriate job requirement for the Chief Deputy position. The
parties agree that Milligan made changes to the Chief Deputy position and that
DePriest’s replacement performs duties related to policymaking and politics that she
had not performed. In particular, Milligan required his Chief Deputy to provide
advice, to be available at all times, and to speak on Milligan’s behalf at public events.
On this basis, we find it appropriate for Milligan to require personal and political
loyalty in the Chief Deputy position. See id.; Johnson, 113 F.3d at 844. As such, it
was permissible for Milligan to dismiss DePriest on the basis of her political
affiliations as a matter of law. Therefore, we affirm the district court’s grant of
summary judgment on this claim.
B. Gender Discrimination Claims
DePriest raises gender discrimination claims under the GERA, the Equal
Protection Clause through § 1983, Title VII, and the ACRA. Regarding the GERA
claims, the EEOC concluded the GERA does not apply to DePriest. If properly
presented, we will set aside an EEOC final order on a GERA claim if the order is:
“(1) arbitrary, capricious, an abuse of discretion, or otherwise not consistent with law;
(2) not made consistent with required procedures; or (3) unsupported by substantial
evidence.” 42 U.S.C. § 2000e-16c(d). However, we need not review the merits of the
EEOC’s determination because DePriest did not make a timely appeal of the order
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directly to this Court, as required by statute. See Stitz, 9 F. Supp. 2d at 1056 (“[W]e
do not believe that under the GERA, the district court is the court that can exercise
judicial review of an EEOC determination. Rather, we believe that the court of
appeals has such jurisdiction.”); 42 U.S.C. § 2000e-16c(c) (providing that judicial
review of GERA claims is governed by Chapter 158 of Title 28, which is the
Administrative Orders Review Act); 28 U.S.C. § 2342 (providing the court of appeals
with exclusive jurisdiction to review an agency’s final orders); id. § 2344 (providing
that a petition for review of a final order must be filed within 60 days).
As to DePriest’s remaining gender discrimination claims, we apply the same
standard to discrimination claims arising under § 1983, Title VII, and the ACRA. See
Gibson v. Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012) (applying the same
standard to a claim arising under Title VII and the ACRA); Richmond v. Bd. of
Regents of Univ. of Minn., 957 F.2d 595, 598 (8th Cir. 1992) (applying the same
standard to a claim arising under § 1983 and Title VII). In the absence of direct
evidence, we analyze employment discrimination claims under the McDonnell
Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802–03 (1973). First, the plaintiff must establish a prima facie case for
gender discrimination, which requires showing: “(1) she was a member of a protected
class; (2) she was qualified for her job; (3) she suffered an adverse employment
action; and (4) these are facts that give rise to an inference of unlawful gender
discrimination.” Fiero v. CSG Systems, Inc., 759 F.3d 874, 878 (8th Cir. 2014)
(quoting Wells v. SCI Mgmt., L.P., 469 F.3d 697, 700 (8th Cir. 2006)). “The burden
then shifts to [the] defendant to articulate a legitimate, nondiscriminatory reason for
its action. If [the] defendant meets that minimal burden, [the] plaintiff must show that
the proffered nondiscriminatory reason is merely a pretext for unlawful . . .
discrimination.” Id. (quoting Putman v. Unity Health Sys., 348 F.3d 732, 735 (8th
Cir. 2003)) (alteration in original). To survive summary judgment, the plaintiff “must
point to enough admissible evidence to raise genuine doubt as to the legitimacy of the

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defendant’s motive.” Id. (quoting Barnhardt v. Open Harvest Co-op, 742 F.3d 365,
371 (8th Cir. 2014)).
DePriest claims three instances of gender discrimination: (1) Milligan’s failure
to reappoint her upon being elected; (2) Milligan’s failure to offer her another position
in the office in January 2011; and (3) Milligan’s failure to hire her for the electronic
records manager position in June 2011. Analyzing each of these claims within the
McDonnell Douglas framework, we conclude that DePriest cannot survive summary
judgment on any of her claims.
First, while we find it plausible that DePriest established a prima facie case of
gender discrimination as to Milligan’s failure to reappoint her in 2011, DePriest fails
to show Milligan’s reasons for doing so were pretextual. Milligan contends he sought
to transform the Chief Deputy position into a policymaking, politics-centered position
that would be held by an individual he personally trusted. DePriest argues this is
pretext because she had more experience and was more qualified than Harris, the man
Milligan hired to replace her. However, DePriest also admits that the Chief Deputy
position changed under Milligan’s leadership, and she provides no evidence as to how
she remained more qualified given the new job requirements. Even viewing the facts
in the light most favorable to DePriest, her pretext argument does not hold water.
DePriest does not identify any evidence that would allow a reasonable jury to
conclude Milligan’s proffered reason for dismissing her was pretext for gender
discrimination. See Fiero, 759 F.3d at 878–79.
Second, regarding Milligan’s failure to offer DePriest another position in the
office in January 2011, DePriest has not alleged adequate facts to establish a prima
facie case of gender discrimination. DePriest did not apply for any open positions, nor
was Milligan required to find her a suitable position upon dismissing her from the
Chief Deputy position.

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Finally, DePriest has not established a prima facie case of discrimination as to
her claim that Milligan failed to hire her for the electronic records manager position
in June 2011. The parties agree that DePriest did not apply for this position. DePriest
argues she did not apply because the opening was not publicly posted, but she cites
to no evidence to support this assertion. Milligan provided an affidavit and several
exhibits from Christy Peterson, the County Personnel Manager, to support his
contention that the position was in fact posted. DePriest offered nothing to rebut this
evidence and create a triable question of fact. See Torgerson v. City of Rochester, 643
F.3d 1031, 1042 (8th Cir. 2011) (“The nonmovant ‘must do more than simply show
that there is some metaphysical doubt as to the material facts.’” (quoting Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986))).
In light of the foregoing analysis, we affirm the district court’s grant of
summary judgment as to DePriest’s gender discrimination claims.
C. Retaliation Claims
DePriest claims Milligan retaliated against her for filing the first lawsuit against
him when he did not hire her for either of the open positions in 2013. DePriest
proceeds under three theories: violations of the First Amendment through § 1983,
Title VII, and the ACRA.
Because DePriest has offered no direct evidence of retaliation, we evaluate her
Title VII claim under the McDonnell Douglas burden-shifting framework. Fiero, 759
F.3d at 880. To establish a prima facie case of retaliation, a plaintiff must show that:
“(1) she engaged in statutorily protected conduct; (2) she suffered an adverse
employment action; and (3) a causal connection exists between the two.” Id. at 880
(quoting Wells v. SCI Mgmt., L.P., 469 F.3d 697, 702 (8th Cir. 2006)). If the plaintiff
makes this prima facie showing, the employer “must then rebut it ‘by presenting

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evidence of a legitimate, non-retaliatory reason for the action it took against [the
plaintiff].’” Id. (quoting E.E.O.C. v. Kohler, 335 F.3d 766, 772–73 (8th Cir. 2003)).
“If [the employer] satisfies this burden, [the plaintiff] is ‘then obliged to present
evidence that (1) creates a question of fact as to whether [the employer’s] proffered
reason was pretextual and (2) creates a reasonable inference that [the employer] acted
in retaliation.’” Id. (quoting Smith v. Allen Health Sys., Inc., 302 F.3d 827, 833 (8th
Cir. 2002)). We analyze First Amendment and ACRA retaliation claims under the
same framework as claims of retaliation under Title VII.4 Tyler v. Univ. of Ark. Bd.
of Trs., 628 F.3d 980, 986 (8th Cir. 2011) (considering a First Amendment retaliation
claim); Brown v. City of Jacksonville, 711 F.3d 883, 892 (8th Cir. 2013) (considering
an ACRA retaliation claim).
Viewing the evidence in the light most favorable to DePriest, we assume that
DePriest has established a prima facie case for retaliation under the First Amendment,
Title VII, and ACRA. At the second step, Milligan offered several reasons for not
hiring DePriest in 2013, including that DePriest was not familiar with the new

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Our case law suggests two possible frameworks for evaluating First
Amendment retaliation claims: McDonnell Douglas (discussed above) and Mt.
Healthy City School District v. Doyle, 429 U.S. 274, 287 (1977) (requiring that the
plaintiff “show that his conduct was constitutionally protected, and that this conduct
was a ‘substantial factor’ or . . . a ‘motivating factor’” in the adverse decision before
the burden shifts to the defendant to show “it would have reached the same decision
. . . even in the absence of the protected conduct”). Some cases suggest the two
frameworks may apply in distinct circumstances. See Davison v. City of Minneapolis,
Minn., 490 F.3d 648, 663 (8th Cir. 2007) (Colloton, J., dissenting in part and
concurring in part) (arguing Mt. Healthy applies where the retaliation claim is
supported by direct evidence, while McDonnell Douglas applies where direct evidence
is not available). The district court in this case considered DePriest’s claims under
both frameworks and concluded that summary judgment was appropriate regardless
of the standard applied. We agree.
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computer system.5 In an attempt to show pretext, DePriest points to an isolated
statement from Milligan’s 2012 deposition to the effect that Milligan knows of no
legitimate nondiscriminatory reason for his desire to not hire DePriest. This statement
was speculative as it was made before DePriest had applied for any job in the office.
Moreover, we need not accept Milligan’s legal conclusion as fact. See Howard v.
Columbia Pub. Sch. Dist., 363 F.3d 797, 801 (8th Cir. 2004) (noting that we must
“disregard portions of . . . depositions that . . . purport to state legal conclusions as
fact”). The record shows that Milligan considered DePriest as one of three applicants
invited to interview for one of the open positions. The applicants that Milligan
subsequently hired had experience with the new computer system, which DePriest
admittedly lacked. Considering the evidence in the record, we conclude that DePriest
failed to show a genuine issue of material fact exists or raise an inference of unlawful
retaliation. See Fiero, 759 F.3d at 880. We affirm the district court’s grant of
summary judgment as to DePriest’s retaliation claims.
III. Conclusion
Based on the foregoing analysis, we affirm the district court’s grant of summary
judgment and its decision to dismiss the state law claims.
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Our review of Milligan’s deposition reveals at least two other reasons behind
his decision not to hire DePriest: (1) he “ha[s] the right as an elected official to hire
who [he] want[s] to hire”; and (2) DePriest would not “work out well” in the office.
While it is unclear how these reasons would support an inference of retaliation, we
conclude that Milligan’s assertion that DePriest is not trained in the new computer
system satisfies his burden to present a nonretaliatory reason for failing to hire her.
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