Burton v. Martin et al

Filing 89

OPINION AND ORDER denying 78 defendants' second motion for summary judgment. Signed by Judge Kristine G. Baker on 02/13/2015. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
RICHARD A. BURTON
v.

PLAINTIFF
Case No. 4:11-cv-00710 KGB

ARKANSAS SECRETARY OF STATE,
MARK MARTIN, In his Official Capacity as
ARKANSAS SECRETARY OF STATE,
DARRELL S. HEDDEN, In his Individual
and Official Capacity as Chief of Police for
STATE CAPITOL POLICE

DEFENDANTS

OPINION AND ORDER
Before the Court is defendants’ second motion for summary judgment (Dkt. No. 78), to
which plaintiff Richard Burton has responded (Dkt. No. 83). Defendants have replied to Mr.
Burton’s response (Dkt. No. 85).
Mr. Burton brings this action under 42 U.S.C. § 2000e (Title VII of the Civil Rights Act
of 1964, as amended), 42 U.S.C. § 1983, and the Fourteenth Amendment to the United States
Constitution against his former employer, the Arkansas Secretary of State, in his official
capacity, and the Chief of the Arkansas State Capitol Police, Darrell Hedden, in his individual
and official capacity. Mr. Burton alleges race discrimination and retaliation. Mr. Burton also
brings this action under 28 U.S.C. § 2201 for declaratory judgment to declare the rights and other
legal relations between the parties.
I.

Procedural Background  

In its February 16, 2013, Opinion and Order (Dkt. No. 46), this Court granted in part and
denied in part defendants’ first motion for summary judgment. Specifically, the Court denied
defendants’ first motion for summary judgment on Mr. Burton’s race discrimination and
retaliation claims, concluding that Mr. Burton could pursue his Title VII claims against all

defendants but that the Eleventh Amendment barred his § 1983 claims against the Arkansas
Secretary of State and his claims for monetary damages against the Secretary of State and Chief
Hedden in their official capacities. The Court also denied Chief Hedden qualified immunity,
finding that Mr. Burton could pursue his § 1983 claims for prospective injunctive relief and
monetary damages against Chief Hedden in his individual capacity. Further, the Court denied
defendants’ first motion for summary judgment as to damages. The Court granted summary
judgment to defendants on Mr. Burton’s claims under 42 U.S.C. § 1981, his hostile-work
environment claim, and his claim of deprivation of a protected property or liberty interest.
Defendants appealed this Court’s Opinion and Order to the Eighth Circuit Court of
Appeals, seeking review of this Court’s denial of summary judgment as to Chief Hedden’s
asserted qualified immunity over Mr. Burton’s § 1983 claims for race discrimination and
retaliation and the Court’s denial of summary judgment as to Mr. Burton’s Title VII claims. On
December 17, 2013, the Eighth Circuit affirmed this Court’s decision in all respects, except that
it reversed the denial of qualified immunity to Chief Hedden on Mr. Burton’s § 1983 equalprotection claim of retaliation and declined to review the Title VII retaliation claim (Dkt. No.
67). Defendants petitioned the Eighth Circuit for rehearing en banc, and the Eighth Circuit
denied the petition on January 30, 2014 (App. Case No. 13-1427). This Court entered an Order
consistent with the Eighth Circuit’s determination and granted Chief Hedden qualified immunity
on Mr. Burton’s § 1983 equal-protection claim of retaliation (Dkt. No. 70).
In their second motion for summary judgment, defendants argue for a second time that
they are entitled to summary judgment on Mr. Burton’s discrimination and retaliation claims,
that Chief Hedden is entitled to qualified immunity from suit in this matter, and that defendants

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are entitled to summary judgment on the issues that remain in this case. For the following
reasons, the Court denies defendants’ second motion for summary judgment.
II.

Factual Background 

When filing their second motion for summary judgment, defendants requested, and the
Court granted, permission for defendants to incorporate by reference the statement of material
facts not in dispute that defendants filed in support of their first motion for summary judgment
(Dkt. Nos. 80, 82). Mr. Burton, for his response to defendants’ second motion for summary
judgment, requests that his previously submitted response to defendants’ statement of undisputed
facts be incorporated into his response to defendants’ second motion for summary judgment as
stated word for word (Dkt. No. 83, ¶ 12). The Court grants Mr. Burton’s request. Because all
parties agree that the factual background and record evidence remain unchanged and because the
Court set out in detail the factual background in its Opinion and Order granting in part and
denying in part defendants’ first motion for summary judgment (Dkt. No. 46), the Court will not
repeat the factual background here.
Despite this, defendants filed in support of their second motion for summary judgment a
declaration of Chief Hedden initially submitted in another case, Van Horn v. Martin, et al., Case
No. 5:13-cv-0074 DPM.
summary judgment.

This declaration was not filed with defendants’ first motion for

The declaration relates to Yevonne Van Horn and her employment

discrimination claims, not to Mr. Burton. In part, the declaration provides information about
certain policies that Secretary of State Mark Martin implemented on November 7, 2011,
regarding officers’ firearm qualifications.
III.

Standard

Summary judgment is proper if the evidence, when viewed in the light most favorable to
the nonmoving party, shows that there is no genuine issue of material fact and that the defendant
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is entitled to entry of judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). A factual dispute is genuine if the evidence could cause a reasonable
jury to return a verdict for either party. Miner v. Local 373, 513 F.3d 854, 860 (8th Cir. 2008).
“The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather,
the dispute must be outcome determinative under the prevailing law.” Holloway v. Pigman, 884
F.2d 365, 366 (8th Cir. 1989). The initial burden is on the moving party to demonstrate the
absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. The burden then
shifts to the nonmoving party to establish that there is a genuine issue to be determined at trial.
Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366 (8th Cir. 2008). “The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). “There is no ‘discrimination case exception’ to
the application of summary judgment, which is a useful pretrial tool to determine whether any
case, including one alleging discrimination, merits a trial.” Torgerson v. City of Rochester, 643
F.3d 1031, 1043 (8th Cir. 2011) (en banc).
IV.

Discussion

Despite the Eighth Circuit’s decision affirming this Court’s prior Opinion and Order in
nearly all respects and despite all parties agreeing that the factual record remains unchanged,
defendants argue that this Court should grant their second motion for summary judgment as to
Mr. Burton’s claims of race discrimination under Title VII, § 1983, and the Fourteenth
Amendment and as to Mr. Burton’s claims of retaliation under Title VII. Chief Hedden also
asserts again the defense of qualified immunity as to Mr. Burton’s claims of race discrimination
under § 1983 and the Fourteenth Amendment. Specifically, defendants contend that the Eighth
Circuit’s decision in Johnson v. Securitas Security Services, 769 F.3d 605 (8th Cir. 2014),

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supersedes the Eighth Circuit’s decision in this case. Furthermore, defendants argue that this
Court should reconsider its previous decision on Mr. Burton’s retaliation claims because of the
United States Supreme Court’s subsequent decision in University of Texas Southwestern Medical
Center v. Nassar, 133 S. Ct. 2517 (2013). Mr. Burton contends, among other things, that this
Court and the Eighth Circuit’s previous decisions in this case established the law of the case,
barring consideration of defendants’ second motion for summary judgment on the same issues.1
The Court addresses the parties’ arguments below.
A.

Law Of The Case

The law of the case doctrine “posits that when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages in the same case.”
Christianson v. Colt Inds. Operating Corp., 486 U.S. 800, 816 (1988). “This doctrine ‘requires
courts to adhere to decisions made in earlier proceedings in order to ensure uniformity of
decisions, protect the expectations of the parties, and promote judicial economy.’” Murphy v.
FedEx Nat. L TL, Inc., 618 F.3d 893, 905 (2010) (quoting United States v. Bartsh, 69 F.3d 864,
866 (8th Cir. 1995)). Courts apply the law of the case doctrine differently depending on the
context of each case. Bethmers Mfg. Co., Inc. v. Automatic Equip. Mfg. Co., 299 F. Supp. 2d
903, 911 (N.D. Iowa 2004) (citing Jamesbury Corp. v. Litton Indus. Prods., Inc., 839 F.2d 1544,
1550 (Fed. Cir. 1988), cert. denied, 488 U.S. 828, overruled on other grounds, A.C. Aukerman
Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020 (Fed. Cir. 1992)).
When a district court has denied summary judgment without intervening authority, “the
law of the case is not a limit on the court’s jurisdiction, but a rule of practice which may be
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Mr. Burton alternatively argues that the doctrine of collateral estoppel precludes defendants
from re-litigating in their second motion for summary judgment the issues already decided by
this Court and the Eighth Circuit. Because this Court decides defendants’ second motion for
summary judgment under the law of the case doctrine, it need not address Mr. Burton’s argument
concerning collateral estoppel.
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departed from in the sound discretion of the district court.” Jamesbury Corp., 839 F.2d at 1551.
Accordingly, the law of the case doctrine does not apply to interlocutory orders such as a district
court’s denial of summary judgment. Murphy, 618 F.3d at 905. However, a stricter standard for
reconsideration applies after appellate review. Dethmers Mfg. Co., 299 F. Supp. 2d at 912. This
stricter standard is articulated in the “mandate rule”: “inferior tribunals are bound to honor the
mandate of superior courts within a single judicial system.” Bartsh, 69 F.3d at 866. “If there are
no explicit or implicit instructions to hold further proceedings [on remand], a district court has no
authority to re-examine an issue settled by a higher court. When an appellate court remands a
case to the district court, all issues decided by the appellate court become the law of the case . . .
.” Id. (internal quotes and citations omitted).
Courts have applied three exceptions to the mandate rule. See U.S. v. Winters, 600 F.3d
963, 965 (8th Cir. 2010). First, if final judgment has not been entered, a court may depart from a
higher court’s mandate “when events outside the particular action establish a clear change in
controlling law.” 18B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 4478.3; Winters, 600 F.3d at 965. For example, the rule does “not apply when the earlier
[appellate] panel decision is cast into doubt by a decision of the Supreme Court.” U.S. v.
Steward, 598 F.3d 960, 962 (8th Cir. 2010) (internal quotes omitted). This exception seems to
hold true if the appellate court en banc overrules an earlier decision by a panel. Cf. Jackson v.
Ault, 452 F.3d 734, 736 (8th Cir. 2006). Second, a lower court may also depart from the
“mandate rule” when a party presents “‘substantially different’ evidence on remand.” Bartsh, 69
F.3d at 866. The third exception arises if the prior appellate decision was “clearly erroneous and
works manifest injustice.” Id. In any case, for a lower court to depart from the mandate rule,

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“the circumstances must be clear and compelling” 18B Wright & Miller, § 4478.3; see Winters,
600 F.3d. at 965-66 (citing 18B Wright & Miller, § 4478.3).
Here, defendants seek an exception to the mandate rule, contending that the Eighth
Circuit’s en banc decision in Johnson supersedes its prior panel decision in this case over Mr.
Burton’s race discrimination claims and Officer Hedden’s qualified immunity defense to those
claims. Defendants also argue that this Court should reconsider its denial of defendants’ first
motion for summary judgment as to Mr. Burton’s retaliation claims in wake of the Supreme
Court’s decision in Nassar.
1. Race Discrimination Claims
Defendants do not challenge this Court’s prior findings that Mr. Burton presented a prima
facie case of discrimination and that defendants have carried their burden of articulating
legitimate, nondiscriminatory reasons for terminating Mr. Burton. Bone v. G4S Youth Servs.,
LLC, 686 F.3d 948, 954 (8th Cir. 2012). The Eighth Circuit assumed without deciding that Mr.
Burton presented a prima facie case, and Mr. Burton did not challenge on appeal this Court’s
determination that defendants articulated a non-discriminatory, legitimate justification for
terminating Mr. Burton (Dkt. No. 67, at 13).
Instead, as to Mr. Burton’s race discrimination claims, defendants focus their argument
on the pretext analysis. Because defendants have carried their burden of articulating legitimate,
nondiscriminatory reasons to terminate Mr. Burton, the burden returns to Mr. Burton “to prove
that the proffered justification is merely a pretext for discrimination.” Id. Mr. Burton relies on
potential comparators to establish pretext.
In an effort to support their second motion for summary judgment on Mr. Burton’s race
discrimination claims, defendants assert that “[o]n October 7, 2014, the Eighth Circuit Court of

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Appeals, sitting en banc, issued an opinion which affects and supersedes the prior decisions
entered in this case” and cite Johnson v. Securitas Security Services, 769 F.3d 605 (8th Cir.
2014) (en banc) (Dkt. No. 78, ¶ 5). Defendants claim that “[t]he Eighth Circuit’s comparator
analysis in Burton v. Martin erroneously relied upon an expanded comparison to co-workers who
were ‘substantially similar,’ and not ‘clones,’ rather than requiring violations of the same
conduct, under the same standards, and under the same supervisor, as is now required by
Johnson. . . .” (Dkt. No. 79, at 1). Defendants contend that, under this purportedly new Johnson
standard, Mr. Burton’s race discrimination claims fail. The Court rejects these arguments.
Johnson does not establish a clear change in the controlling law that would enable this Court to
revisit the Eighth Circuit’s decision affirming this Court’s denial of defendants’ motion for
summary judgment on Mr. Burton’s race discrimination claims.
In Johnson, the Eighth Circuit held that an employee failed to show that he was treated
differently from similarly situated employees because he did not provide evidence of younger
employees who engaged in the same conduct as the plaintiff but who received more lenient
discipline. 769 F.3d at 613. Therefore, the court determined that the mere fact that the employer
had not fired any other employee for the reasons it fired the plaintiff did not suffice to raise a
genuine question of material fact regarding whether the employer treated the plaintiff differently
than other employees. Id. In reaching its decision, the Johnson court repeated the often cited
Eighth Circuit law on the standard for proving that a potential comparator is similarly situated to
the plaintiff: “‘the test for whether someone is sufficiently similarly situated, as to be of use for
comparison, is rigorous,’” id. (quoting Bone, 686 F.3d at 956); a plaintiff “‘must show that [he]
and the employees outside of [his] protected group were similarly situated in all relevant
respects,’” id. (quoting Bone, 686 F.3d at 956); “‘individuals used for comparison must have

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dealt with the same supervisor, have been subject to the same standards, and engaged in the same
conduct without any mitigating or distinguishing circumstances.’” Id. (quoting Bone, 686 F.3d
at 956).
Johnson did not explicitly, and this Court rejects defendants’ argument that it implicitly,
overruled the Eighth Circuit’s decision in this case, this Court’s February 16, 2013, Opinion and
Order, or the precedent cited by both the Eighth Circuit and this Court in reaching its decisions
here. The Johnson court relied on and quoted heavily from Bone v. G4S Youth Services, LLC,
686 F.3d 948, 954 (8th Cir. 2012). The Bone decision guided this Court’s prior determination
regarding defendants’ first motion for summary judgment (see Dkt. No. 46, at 15). Furthermore,
in Bone, the court stated that, “[t]o be probative evidence of pretext, the misconduct of more
leniently disciplined employees must be of comparable seriousness.” 686 F.3d at 956.
Nothing in Johnson or Bone is inconsistent with the opinions handed down in this case.
The Eighth Circuit determined that Mr. Burton presented evidence at the pretext stage of at least
one similarly situated coworker, Officer Robert Barham, a Caucasian employee. 737 F.3d at
1232. The Eighth Circuit concluded that Officer Barham and Mr. Burton were subject to the
same standards and that Mr. Burton established that he was treated differently than Officer
Barham, “whose violations were of comparable seriousness.” Id. at 1233. In reaching this
decision, the Eighth Circuit observed that defendants did not dispute that Mr. Burton and Officer
Barham worked under the same supervisor, Chief Hedden. Based on the unchanged record
evidence, the parties dispute whether Mr. Burton was a probationary employee at the time of his
termination.

Nonetheless, the Eighth Circuit addressed this dispute and assumed, without

deciding, that Mr. Burton was a probationary employee when he was terminated. Thus, the
Eighth Circuit determined that Officer Barham was similarly situated to Mr. Burton during the

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period in which Officer Barham was placed on a “six-month probationary period” and issued a
letter of reprimand for, among other things, being late for work on four different occasions. Id.
Defendants’ remaining arguments directed at Mr. Burton’s discrimination claims are, in a
sense, requests for this Court to reconsider, and declare wrong, the Eighth Circuit’s analysis of
the law, record evidence, and arguments made by the parties during the interlocutory appeal.
The Court is unclear why it should permit defendants to make new arguments or renew
arguments, not dependent on a change in the law, when those arguments were available but not
presented, or presented unconvincingly, to this Court and the Eighth Circuit in support of
defendants’ first motion for summary judgment.
For example, defendants contend that, as an officer placed on probation in 2012, Officer
Barham was under a different standard than was Mr. Burton, who was a new probationary
employee. The Eighth Circuit explicitly “conclude[d] that Burton and Officer Barham were
subject to the same standards.” 737 F.3d at 1232 (internal quotes omitted). The Eighth Circuit
either rejected this argument which defendants now advance or defendants failed to make it on
the interlocutory appeal. Moreover, defendants offer no new or substantially different evidence
to support their argument, nor do they point to any intervening and controlling law that finds
probationary employees are subject to a different standard than employees who are on probation.
Defendants offer nothing to show that the Eighth Circuit’s decision was clearly erroneous, and
they do not contend that the Eighth Circuit’s decision somehow works a manifest injustice.
Therefore, the mandate rule dictates that this Court reject defendants’ argument.
Furthermore, defendants claim that the Eighth Circuit failed to consider that “Chief
Hedden’s supervision had changed when Secretary Martin was elected” and during the time that
Officer Barham was placed on probation (Dkt. No. 79, at 6). For this, defendants cite to Chief

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Hedden’s declaration from another case not presented to this Court or the Eighth Circuit with
defendants’ first motion for summary judgment and contend that “Secretary Martin changed the
standards under which Chief Hedden, and the Capitol Police operated” and that “Secretary
Martin was the relevant supervisor for purposes of the comparator analysis as Barham was
placed on suspension arising from changes made by Secretary Martin in the firearms
qualifications process” (Dkt. No. 79, at 6). The Court rejects defendants’ argument for many
reasons.
As an initial matter, the Court is unclear why it should now permit defendants to inject
new evidence in the form of Chief Hedden’s declaration from another case into what all parties
agree is a settled summary judgment record, especially given that the information contained in
the declaration was readily available to defendants but absent from the filings in their first
motion for summary judgment. Defendants provide no justification and cite to no authority for
doing so. Even if this Court were inclined to consider Chief Hedden’s new declaration or
defendants’ new arguments that Secretary Martin’s changed policies affected the fact that Chief
Hedden was Officer Barham’s direct supervisor, the Court’s decision would remain unchanged,
as this evidence is not substantially different from that in the already agreed upon record. The
record evidence, with all reasonable inferences drawn in favor of the non-moving party, shows
that Chief Hedden remained Officer Barham’s direct supervisor. Chief Hedden signed and
delivered the letter that informed Officer Barham of his placement on probation on June 28, 2012
(Dkt. No. 18-7, at 18). Most notably, however, the Eighth Circuit specifically noted that “the
state defendants do not contest that Chief Hedden served as the supervisor to both Burton and
Officer Barham.” 737 F.3d at 1232. Defendants’ belated attempt to dispute this issue fails.

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Under the standard set out in Bone—and reaffirmed in Johnson—this Court found as set
forth in its February 16, 2013, Opinion and Order that Mr. Burton’s comparator evidence, taken
together with other record evidence and the strong evidence establishing Mr. Burton’s prima
facie case, demonstrates a genuine issue of material fact regarding an inference of
discrimination. The Eighth Circuit’s decision in Burton v. Arkansas Secretary of State, 737 F.3d
1219 (8th Cir. 2013), affirmed that and is consistent with Johnson. Moreover, defendants have
offered no new and substantially different evidence to overcome the Eighth Circuit’s decision in
this case, nor have they shown how the Eighth Circuit’s decision is erroneous or works a
manifest injustice. Accordingly, directed by the law of the case doctrine and the mandate rule,
and for the reasons set out in this Order, the Court denies defendants’ second motion for
summary judgment as to Mr. Burton’s claims of race discrimination. Chief Hedden is not
entitled to qualified immunity as to Mr. Burton’s claims of race discrimination.
2. Title VII Retaliation Claims
Defendants contend that this Court should reconsider its denial of defendants’ first
motion for summary judgment as to Mr. Burton’s retaliation claims in wake of the Supreme
Court’s decision in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517
(2013).
Mr. Burton alleges that defendants violated Title VII by terminating him in retaliation for
filing a complaint against Officer Gomillion. For a plaintiff to demonstrate a prima facie case of
retaliation under Title VII, he must show (1) that he was engaged in protected activity; (2) that he
suffered a materially adverse employment action; and (3) that the materially adverse action was
causally connected to the protected activity. Smith v. Riceland Foods, Inc., 151 F.3d 813, 818

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(8th Cir. 1998). Defendants argue that there is no evidence of a causal connection between Mr.
Burton’s filing of a complaint against Officer Gomillion and his termination.
In its February 16, 2013, Opinion and Order, this Court held that Mr. Burton presented
sufficient evidence for a jury to find a causal connection between Mr. Burton’s termination and
his filing of a complaint alleging that Officer Gomillion made racially offensive remarks. The
Eighth Circuit’s decision in this case did not address Mr. Burton’s claims of retaliation under
Title VII because its resolution of the qualified immunity issue as to Mr. Burton’s race
discrimination claims did not necessarily involve his retaliation claim.
In an effort to support their second motion for summary judgment as to Mr. Burton’s
retaliation claim on a factual record that remains unchanged, defendants assert that “[s]ubsequent
to this Court’s entry of its Order on Defendant’s Motion for Summary Judgment, the United
States Supreme Court held that retaliation claims must be proved according to the traditional
principals of but-for causation,” citing Nassar, and contend that Mr. Burton is unable to meet this
standard of proof (Dkt. No. 78, ¶ 6). Mr. Burton did not address directly this argument in his
response to defendants’ second motion for summary judgment.
The Supreme Court decided Nassar on June 24, 2013, holding that “Title VII retaliation
claims must be proved according to traditional principles of but-for causation, not the lessened
causation test stated in § 2000e-2(m). This requires proof that the unlawful retaliation would not
have occurred in the absence of the alleged wrongful action or actions of the employer.” 133 S.
Ct. at 2533. The Eighth Circuit has followed this rule in Nassar, see Musolf v. J.C. Penney Co.,
Inc., 773 F.3d 916, 919 (8th Cir. 2014), as have the courts in this district. Nichols v. Tri-National
Logistics Inc., Case No. 4:13-cv-124-SWW, 2014 WL 4165321, at *7 (E.D. Ark. August 21,

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2014). Accordingly, to prevail on his retaliation claim under Title VII, Mr. Burton must prove
that his filing of a complaint against Officer Gomillion was the but-for cause of his termination.
Defendants contend that, to prove but-for causation, “a plaintiff must prove that the
legitimate business reason articulated by the defendant is false and that retaliation is the real
reason.” (Dkt. 79, at 2).

Defendants further maintain that, because Mr. Burton admits to

misconduct and does not dispute that he should have been disciplined for his conduct, “it is
impossible for him to meet the ‘but-for’ causation requirements set forth in Nassar” (Dkt. No.
79, at 2). On the record evidence before the Court, the Court rejects defendants’ argument.
Generally, more than temporal connection is required to establish a causal connection. Tyler v.
University of Arkansas Bd. of Trustees, 628 F.3d 980, 985 (8th Cir. 2011). “As more time passes
between the protected conduct and the retaliatory act, the inference of retaliation becomes
weaker and requires stronger alternate evidence of causation . . . .” Id. “The inference vanishes
altogether when the time gap between the protected activity and the adverse employment action
is measured in months.” Id.; see, e.g., Littleton v. Pilot Travel Ctrs., LLC, 568 F.3d 641 (8th Cir.
2009) (holding that gap of seven months was not sufficiently contemporaneous to indicate a
causal connection); Recio v. Creighton Univ., 521 F.3d 934 (8th Cir. 2008) (holding that six
month gap did not establish causal connection). The Eighth Circuit has determined that a gap as
short as two months did not establish a causal connection. Lewis v. St. Cloud State Univ., 467
F.3d 1133 (8th Cir. 2006). Furthermore, the Eighth Circuit has held that an employee’s inquiry
to the employer about the employee’s earlier complaints relates back to the date of the original
complaint and does not raise a new complaint for calculating the temporal proximity between the
adverse action and the protected activity. Musolf, 773 F.3d at 919-20. This rule prevents

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employees from insulating themselves from termination by inquiring about past complaints
directly before being terminated. Id.
Mr. Burton submitted his written complaint on December 9, 2009. He was terminated on
April 12, 2010. While the inference of retaliation is weakened by this gap in time, there is other
evidence from which a jury could find a but-for causal connection. Mr. Burton inquired about
the status of his complaint on January 22, 2010. Chief Hedden claims he did not receive the
email, but he inquired about the status of Mr. Burton’s raise just three days later. On February
16, 2010, Mr. Burton informed Chief Hedden that Officer Gomillion had thrown a set of keys at
Mr. Burton and another officer. Mr. Burton submitted a statement regarding the incident to
Sergeant Huggs on February 17, 2010. Later, during a meeting with Assistant Chief Larry
Robinson and others, Mr. Burton again inquired about the status of his complaint against Officer
Gomillion. During the meeting, Assistant Chief Robinson gave Mr. Burton a copy of the policy
regarding at-will employees, told him anyone can be terminated at any time, and told him to read
it, despite Mr. Burton’s making clear he knew what the policy stated. Assistant Chief Robinson
then pointed to a purportedly new policy regarding bickering amongst the staff. Mr. Burton
asked Assistant Chief Robinson if he was referring to Officer Gomillion and again inquired
about the status of his complaint. According to Mr. Burton, Assistant Chief Robinson stated that
“if ya’ll would just leave [Officer Gomillion] alone and stop aggravating him, none of this stuff
would be happening.” Mr. Burton was terminated a few weeks later.
Although an employee’s inquiry to the employer about the employee’s earlier complaint
does not raise by itself a new complaint for calculating the temporal proximity between the
adverse action and the protected activity, Musolf, 773 F.3d at 919-20, no record evidence shows
that Mr. Burton inquired about his previous complaints merely for the purpose of insulating

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himself from termination. Instead, Mr. Burton consistently inquired about his complaint against
Officer Gomillion even when he was not under the direct threat of termination. Moreover, Mr.
Burton offers more than just a temporal connection as evidence that his termination was causally
connected to his complaint against Officer Gomillion. In addition to his repeated inquiries about
his complaint, Mr. Burton offers as evidence of retaliation statements at a meeting that allegedly
occurred in response to Mr. Burton inquiring about his complaint against Officer Gomillion.
This meeting occurred just weeks before Mr. Burton was terminated. Mr. Burton points to
Assistant Chief Robinson’s statement at the meeting that “none of this stuff would be happening”
without Mr. Burton “aggravating” Officer Gomillion. This statement, along with Assistant Chief
Robinson’s reinforcement of the at-will employee policy and making Mr. Burton read the policy
despite Mr. Burton indicating that he knew it and Assistant Chief Robinson’s pointing to a
purportedly new policy against bickering amongst staff, all allegedly in response to Mr. Burton’s
inquiry, demonstrate more evidence of retaliatory intent than mere temporal proximity.
Further, defendants’ stated reasons for terminating Mr. Burton have been called into
question by Mr. Burton’s evidence of pretext. This Court has determined at this stage of the
litigation that Officer Barham participated in the same relevant conduct as Mr. Burton under the
same supervisor and standard, but Officer Barham was not terminated. Mr. Burton is AfricanAmerican and filed a complaint alleging that another officer made racially offensive remarks,
while Officer Barham is Caucasian and did not. All of this record evidence, viewed in a light
most favorable to Mr. Burton, could establish that, but for Mr. Burton’s filing a complaint
against Mr. Gomillion and repeatedly expressing concern about Mr. Gomillion’s treatment
toward him, Mr. Burton would not have been terminated.

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Mr. Burton has presented record evidence sufficient to create a genuine dispute of
material fact as to whether the facts alleged give rise to retaliatory discharge. On the record
evidence presented, a jury could reasonably find in favor of Mr. Burton on this claim, even under
the but-for causation standard. Defendants’ request for summary judgment on the retaliation
claim is again denied.
V.

Conclusion

For the foregoing reasons, the Court denies defendants’ second motion for summary
judgment as to Mr. Burton’s claims of race discrimination under Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. § 2000e, 42 U.S.C. § 1983, and the Fourteenth Amendment to
the United States Constitution, and the Court denies defendants’ second motion for summary
judgment as to Mr. Burton’s claims of retaliation under Title VII.
SO ORDERED this 13th day of February, 2015.

_______________________________
Kristine G. Baker
United States District Judge

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