Hemminghaus v. Missouri

Filing 90

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that defendants' motion for summary judgment 69 is granted. IT IS FURTHER ORDERED that: Defendants' motion to strike the 2006-2007 audio recordings produced by plaintiff 55 is denied as moot . Defendants' motion to strike testimony of plaintiff's designated medical expert witnesses 68 is denied as moot. Plaintiff's motion to strike reply to response to motion 84 is denied as moot. IT IS FINALLY ORDERED that the portion of my order dated January 11, 2013 89 stating that I will schedule a telephone conference for the purpose of selecting a new trial date is vacated. Signed by District Judge Catherine D. Perry on February 13, 2013. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NADINE HEMMINGHAUS,
Plaintiff,
vs.
STATE OF MISSOURI and
GARY GAERTNER, JR.,
Defendants.

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Case No. 4:11CV736 CDP

MEMORANDUM AND ORDER
Plaintiff Nadine Hemminghaus began working as a court reporter in
Missouri state court in 1997. She was terminated in 2009. She alleges that her
supervisor, Judge Gary Gaertner, Jr., terminated her in violation of her First
Amendment rights because she criticized the police and prosecutor for not
prosecuting a former nanny for abusing her children. She also alleges that her
requests for time off to care for her children following the abuse were denied, in
violation of the Family Leave and Medical Act. I conclude that defendants are
entitled to summary judgment. Hemminghaus was not covered by the FMLA
because, under the particular employment arrangements for official division court
reporters in the Missouri Circuit Courts, she qualified as non-covered personal

staff of an elected official. Judge Gaertner is entitled to qualified immunity on the
First Amendment claims, and her claims for equitable relief are moot.
I.

Summary Judgment Standard
In deciding whether to grant summary judgment, I must view the facts and

any inferences from those facts in the light most favorable to the non-moving
party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The movant bears
the burden of establishing that: (1) there are no genuine issues of material fact, and
(2) it is entitled to judgment as a matter of law. Rule 56, Fed. R. Civ. P.; Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the movant has met this burden,
however, the non-moving party may not rest on the allegations in its pleadings but
must, by affidavit and other evidence, set forth specific facts showing that a
genuine issue of material act exists. Fed. R. Civ. P. 56(e).
II.

Background1
Hemminghaus began working as an official “swing” court reporter in the

Circuit Court of St. Louis County in 1997. As a swing reporter, she was assigned
to a different judge‟s division each week. At that time, the director of judicial
administration supervised all the swing reporters. In 2005, Circuit Judge David
Vincent appointed her to be the official reporter for his division. The following
year, Hemminghaus applied for an opening in defendant Gaertner‟s division. In

1

The facts stated here are either uncontested or are stated in the light favorable to Hemminghaus.

–2–

October 2006, Gaertner appointed Hemminghaus as the official court reporter for
his division.
As Gaertner‟s official court reporter, Hemminghaus was responsible making
a verbatim record of everything that occurred on the record in his court. In
exchange, she earned a salary and benefits that were paid by the State of Missouri.
Hemminghaus was supervised directly by Gaertner, and she worked in his division
along with his court clerk and bailiff. Gaertner sometimes allowed her to work
from home and sometimes allowed her time off, but Hemminghaus never took
leave without asking Gaertner ahead of time.
In September 2008, Hemminghaus discovered that her two young sons had
been abused by their nanny. The nanny admitted to police that she had slapped the
children. Later, the children began making disclosures about sexual abuse, and
they developed significant behavioral problems, including anxiety and severe
tantrums. Hemminghaus was critical of how the police and prosecutors were
investigating her children‟s abuse. She eventually learned that the prosecutor‟s
office had declined to press charges against the nanny.
In December 2008, an assistant county prosecutor called Gaertner to tell him
Hemminghaus‟ former nanny had contacted the police to complain that
Hemminghaus had been harassing her with telephone calls. The assistant
prosecutor also told Gaertner that Hemminghaus had almost been arrested and had
–3–

been escorted from the police department after she had gone there to demand that
the police take action on her children‟s abuse case.
Gaertner then called a meeting with Hemminghaus. He asked Gail Crane, a
senior probate division employee, to mediate. At that meeting, which took place
December 2, 2008, Hemminghaus asked Gaertner for permission to talk to the
media about her children‟s case. Hemminghaus believed that the nanny was a
danger to society and that the prosecuting attorney was not doing his job.
According to Hemminghaus‟ testimony, Gaertner told her not to go to the media or
she would be fired.
But Hemminghaus had already spoken to a local reporter by that time. She
continued her contact with the reporter after the December meeting and also
emailed the host of a national television show to criticize the police and the
prosecutor‟s office, and she expressed concern that the nanny could potentially
harm other children. She engaged other court employees in conversations about
the case. She blogged several hundred times about her children‟s abuse on a
parental support website, as well as on a site hosted by a local media outlet.
Though she occasionally mentioned her familiarity or employment with the justice
system, she blogged anonymously.
That same month, the nanny filed an ex parte order of protection against
Hemminghaus, but the nanny voluntarily dismissed it 12 days later.
–4–

Between December 2008 and April 2009, Hemminghaus continued working
as Gaertner‟s official court reporter. According to her testimony, she made
numerous requests for leave to take care of her children during that period, but
Gaertner denied or ignored most of her requests.
On April 27, 2009, Hemminghaus spoke to Gaertner on the telephone and
asked for time off that morning to care for her son. At first, Gaertner acquiesced to
her request. Later, he called back and told Hemminghaus she needed to come to
work because there was something on the record. After she arrived at work,
Hemminghaus and Gaertner had two conversations. In her answers to
interrogatories, Hemminghaus described those interactions this way:
I again spoke with [Gaertner] after I had gotten to work [on April 27,
2009] and he came into my office and asked how my son was doing. I
asked him if he really wanted to know. I told him I was on the phone
with the doctor that morning discussing health-related issues and told
him what those issues were – that my children had further revelations
of abuse. I also told him that I was going to continue to pursue a case
against the babysitter and he told me not to bring these issues up to
anyone in the courthouse.
Later that day, we again spoke in [Gaertner‟s] chambers. I asked him
once again for time off in the mornings for my sons and, once again,
the conversation switched to my pursuit of the babysitter. I told him I
intended to pursue a case against her. He said, No one will ever look
at your case, period. The PA won‟t take it, the US Attorney won‟t
take, no one will take it. He said that no one believes children your
kids‟ age. I asked him not to hurt me or my case and I would not hurt
him by having to tell people what he was doing to me by telling me I
couldn‟t pursue a case against the babysitter. I then said, Will
Dateline hear my case? At that, he jumped up and ran out from
behind his desk, and started screaming, Get out of here now and never
–5–

come back in here again! On my way out, I said, if you‟re going to
fire me, just do it because I can‟t take this anymore.
(Pl.‟s Ex. 1, Answers to Interrogs., ¶ 10, p. 10.) The next day, April 28, 2009,
Crane knocked on Hemminghaus‟ office door and told her Gaertner wanted to
have another meeting. Hemminghaus believed at the time that Gaertner was going
to fire her, so she arranged to have her attorney on speakerphone when she came to
Gaertner‟s chambers.2 When Hemminghaus announced that her attorney was on
speakerphone, Gaertner hung up the phone. Hemminghaus stated that she refused
to be unrepresented during the meeting, so she left and returned to her office.
After that, Gaertner spoke with several court employees and family members, and
ultimately decided to terminate Hemminghaus‟ employment.
According to his testimony, Gaertner would not have fired Hemminghaus if
she had remained in his office after he hung up on her attorney. Gaertner stated:
. . . having any third person involved in the [April 28] conversation
totally vitiated my ability to supervise Ms. Hemminghaus. . . . if Ms.
Hemminghaus had sat there and stayed in the room after I had
terminated the conversation with [her attorney], I don‟t think we
would have ever gone down the path of terminating her on that day.
I‟m about a hundred percent certain. . . . But when she refused to talk
to me without [her attorney] present, it just – the working – working
situation between me and Ms. Hemminghaus was irreparably harmed
at that point in time.
2

The parties now agree that Gartner did not intend to fire her, but instead intended to advise
Hemminghaus about new requirements for her employment: (1) that she was not permitted to
talk to him or other court personnel about her children‟s abuse case; (2) that she had to be
working at the court 8:45 a.m. to 5 p.m. every weekday, rather than working from home; (3) that
she had to leave her office door open while she was working; and (4) that she could take family
leave in order to resolve her issues.

–6–

(Pl.‟s Ex. 9, Gaertner Dep. 206:9–20.)
The next day Gaertner signed an Employee Information form showing that
Hemminghaus had been dismissed for “Unsatisfactory job performance & conduct
and behavior.” (Pl.‟s Ex. 16, p. 3.) He also wrote a termination letter to
Hemminghaus. In that letter, he wrote that Hemminghaus had “engaged in
unprofessional conduct while at work,” failed to arrive at work on time, and
“caused several serious disruptions” within his division. Gaertner also wrote that
he had spoken with Hemminghaus about these issues, but her performance had not
improved. He wrote that her refusal to stay at the April 28 meeting without her
attorney had “irretrievably broken” their working relationship and that it
“necessitate[d] the immediate termination” of her employment. (Def.‟s Ex. 5, p.
1.)
III.

FMLA Claim
Hemminghaus alleges that the State of Missouri – through its agent Gaertner

– violated her FMLA rights by either denying her leave to care for her children or
retaliating against her for taking such leave. In their summary judgment motion,
defendants first argue that Hemminghaus was not eligible for FMLA leave for a
variety of reasons. They argue that Gaertner, not the state, was her employer, and
he did not have the necessary 50 employees. They also argue that she was not
covered by FMLA because she was personal staff of an elected official.
–7–

Defendants also contend that Hemminghaus‟ children did not have a “serious
health condition” as required to trigger her right to FMLA leave, and more
fundamentally, that the FMLA does not protect Hemminghaus‟ right to the specific
type of “unscheduled and unpredictable” leave she sought.
The FMLA was intended to “balance the demands of the workplace with the
needs of families.” 29 U.S.C. § 2601(b)(1); see also Caldwell v. Holland of Texas,
Inc., 208 F.3d 671, 676 (8th Cir. 2000). To effectuate this intent, the FMLA
authorizes eligible employees to take up to twelve workweeks of unpaid leave per
year for certain reasons. Among other things, employees can use such leave to
care for themselves or immediate family members suffering from a “serious health
condition.” 29 U.S.C. § 2612(a)(1)(C).
The FMLA covers eligible employees in both the private and public sectors.
Id. § 2611(4)(A); see also Darby v. Bratch, 287 F.3d 673, 681 (8th Cir. 2002). The
Act defines a “public agency” to include “the government of a State or political
subdivision thereof,” as well as any agency of a State or its political subdivision.
29 U.S.C. § 203(x) (incorporated by id. § 2611). Like her private-sector
counterpart, a public employee is only eligible for FMLA leave if the public
agency for which she works employs at least 50 people. See 29 C.F.R. §
825.108(d).

–8–

Even if a public employee meets this requirement, however, she is not
necessarily covered by the FMLA. The Act excludes public-agency employees
who were “selected by the holder of [a public elective office] to be a member of
his personal staff.” 29 U.S.C. § 203(e)(2)(C)(ii)(II).3
A.

Hemminghaus’ Employer was the State of Missouri
Defendants first argue that Hemminghaus‟ “employer,” for purposes of

FMLA coverage, was Gaertner rather than the State of Missouri. As such, they
contend, she does not meet the requirements for FMLA eligibility because
Gaertner employed fewer than 50 people. This argument has no merit.
Hemminghaus‟ salary was not only paid by the State but set statutorily by
the Missouri legislature. See Mo. Rev. Stat. §§ 485.060, 485.065. Her life
insurance, health insurance, and retirement benefits were paid by the State.
Moreover, the Missouri Court of Appeals has held decisively that “a Court
Reporter is an „employee of the state.‟” Hawkins v. Mo. State Employees’ Ret.
Sys., 487 S.W.2d 580, 583 (Mo. Ct. App. 1972) (holding that as employees of the
state, court reporters are entitled to participate in the state retirement system).
In addition, federal regulations interpreting the FMLA provide that:

3

An employee who falls under the personal-staff exception also must not be “subject to the
civil service laws of the State, political subdivision, or agency” that employs her. Id. §
203(e)(2)(C)(i). An at-will state employee is not subject to the state‟s civil service laws, e.g.,
Austin v. Cook Cnty., No. 07CV3184, 2011 WL 5872836, at *5 (N.D. Ill. Nov. 16, 2011), and
the parties agree that Hemminghaus was an at-will employee.

–9–

A State or a political subdivision of a State constitutes a single public
agency and, therefore, a single employer for purposes of determining
employee eligibility. For example, a State is a single employer; a
county is a single employer; a city or town is a single employer.
Whether two agencies of the same State or local government
constitute the same public agency can only be determined on a caseby-case basis. One factor that would support a conclusion that two
agencies are separate is whether they are treated separately for
statistical purposes in the Census of Governments issued by the
Bureau of the Census, U.S. Department of Commerce.
29 C.F.R. § 825.108(c)(1) (2009). See also Fain v. Wayne Cnty. Aud.’s Office, 388
F.3d 257, 259–60 (7th Cir. 2004) (interpreting prior version of regulation); Rollins
v. Wilson Cnty. Gov’t, 154 F.3d 626, 629–30 (6th Cir. 1998) (under the prior
version, courts should examine state law first and only use the Census of
Governments if ambiguity remains).
Here, the Census of Governments‟ classification of the State as a single
employer – rather than recognizing individual circuit judges as employers – also
supports the conclusion that Hemminghaus was employed by the State. See, e.g.,
“Expenditure Functions,” U.S. Census Bureau, Gov’t Fin. & Employment
Classification Manual (2006 edition), p. 152 (including court reporters as a
“general government” expenditure of the “judicial and legal” functions of State
governments); “Missouri,” Individual State Descriptions: 2007 (reissued
November 2012), pp. 176–82 (not listing courts or judges as separate entities from
the State). See also Hawkins, 487 S.W.2d at 582 (Missouri circuit judges are
themselves state employees).
– 10 –

State law and the classifications of the 2007 Census of Governments and
federal regulations demonstrate that Hemminghaus‟ employer was the State of
Missouri. Because the State employs more than 50 people, Hemminghaus meets
the numerosity requirement for FMLA eligibility.
B.

Hemminghaus Was “Personal Staff” of A “Public Elective Office Holder”
Although I agree with Hemminghaus that her employer was the State, I still

must consider defendants‟ argument that she cannot bring an FMLA claim because
she is excluded from the statute‟s coverage as personal staff of a public elective
office holder. See 29 U.S.C. § 2611(3) (incorporating by reference id. § 203(e)).
There are two questions presented: whether Gaertner was a “public elective office
holder” and whether Hemminghaus was part of his “personal staff.” I conclude
that the answer is yes to both questions.
a.

“Public Elective Office Holder”
Whether a judge appointed under the Missouri Nonpartisan Court Plan is a

“public elective office holder” for purposes of the FMLA is an issue of first
impression. Despite the hybrid nature of Gaertner‟s selection as circuit judge, I
conclude that he was an elective office holder because he was subject to removal
by the electorate.
The Missouri Plan provides a multistep process for the selection of certain
state judges, including the circuit judges of St. Louis County. MO. CONST. ART. V,
– 11 –

§ 25(a)–(g). First, when a judicial vacancy arises at one of the covered state
courts, interested candidates may apply. Next, a nonpartisan judicial commission,
comprising five members, nominates three finalists from among the applicants. Id.
§ 25(d). The commission submits those three names to the governor, who selects
one of them to fill the vacancy. The newly appointed judge takes office and
becomes subject to periodic, nonpartisan retention elections. For example, circuit
court judges stand for such retention elections every six years. Id. § 19. In order
to appear on the ballot at all, the judge must declare his or her candidacy. Id. §
25(c)(1). The ballot language concerning a judge‟s retention or removal is
prescribed in the Missouri Constitution and simply asks the yes or no question:
“Shall Judge [name] of the [particular court] be retained in office?” Id. If a
majority of voters vote “no,” the judge is removed at the end of his or her term.
Otherwise, the judge goes on to serve another term.
As stated above, whether a Circuit Judge appointed and subject to retention
elections under the Missouri Plan is an elective official for purposes of the FMLA
has not been decided. Some courts have touched on the issue when considering
whether such judges are “elected” for purposes of other federal statutes. For
example, in a suit under the Age Discrimination in Employment Act a district
judge noted in a footnote that judges were not “elected” for purposes of that
statute, but went on to decide that they could not bring an ADEA claim anyway
– 12 –

because they were “appointee[s] at the policymaking level.” Gregory v. Ashcroft,
No. 4:88CV0221, 1989 WL 208396, at *2 (E.D. Mo. July 14, 1989). In affirming
the decision, both the Eighth Circuit and the United States Supreme Court found it
unnecessary to decide whether the judges were “elected” because they agreed they
were excluded under the appointee language. See Gregory v. Ashcroft, 501 U.S.
452, 467 (1991), affirming 898 F.2d 598, 600 (8th Cir. 1990). The Eighth Circuit
again found it unnecessary to decide whether judges selected under the Missouri
Plan were “elected to public office” for Title VII purposes in Goodwin v. Circuit
Ct. of St. Louis Cnty., Mo., 729 F.2d 541, 549 n.10 (8th Cir. 1984). Earlier, in
Marafino v. St. Louis Cnty. Cir. Ct., 537 F. Supp. 206, 211 (E.D. Mo. 1982) , the
district court had assumed without deciding that a Missouri circuit court judge is
“elected” for purposes of Title VII.
Despite these somewhat conflicting statements, there is no doubt that a
retention election under the Missouri Plan is an “election”:
Retention elections are opportunities for the electorate to choose to
retain a person as a judge. While a retention election does not place
one person in electoral conflict with another, as in partisan elections,
it is nonetheless an election. One serves at the will of the people in
either event.
African-Am. Voting Rights Legal Def. Fund, 994 F. Supp. 1105, 1122 (E.D. Mo.
1997) (Voting Rights Act case), aff’d per curiam, 133 F.3d 921 (8th Cir. 1998);
see also Bradley v. Ind. State Elect. Bd., 797 F. Supp. 694, 697 (S.D. Ind. 1992)
– 13 –

(retention elections of Indiana state judges were “elections” under Voting Rights
Act).
Vulnerability to ouster by the public is the very essence of an elective office.
Though Missouri Plan judges may be appointed at the outset, they continue to
serve only at the will of the people; they must face an election to retain their
positions. As such, Missouri Plan judges are “elective office holders” for purposes
of the FMLA.
b.

“Personal Staff Member”
The next question then is whether Hemminghaus was excluded from FMLA

coverage as a member of Gaertner‟s personal staff. I conclude that Hemminghaus
was a member of Gaertner‟s personal staff because she served at his pleasure, was
accountable only to him, was closely supervised by him, and because
Hemminghaus and Gaertner worked together, with interdependent duties, in the
same small division.
An individual who serves as a member of an elected official‟s “personal
staff” is not eligible for FMLA leave.4 See 29 U.S.C. § 2611(3) (incorporating by
reference id. § 203(e)). Determining whether an employee falls within the
personal-staff exception is a “highly factual” inquiry to be construed narrowly

4

The FMLA explicitly incorporates the FLSA‟s personal staff exception in 29 U.S.C. §
2611(3)). It is therefore appropriate to consider cases applying the same exceptions found in the
FLSA in deciding this issue. See, e.g., Rutland v. Pepper, 404 F.3d 921, 923 (5th Cir. 2005).

– 14 –

against the employer. Rutland v. Pepper, 404 F.3d 921, 924 (5th Cir. 2005); see
also Teneyuca v. Bexar Cnty., 767 F.2d 148, 152 (5th Cir. 1985); Baker v. Stone
Cnty., Mo., 41 F. Supp. 2d 965, 983–87 (W.D. Mo. 1999) (examining the FLSA
personal-staff exception); Perry v. City of Country Club Hills, 607 F. Supp. 771,
774 (E.D. Mo. 1983) (legislative history of Title VII personal-staff exception
expressly demonstrates Congress‟ intent for it to be construed narrowly). The
relevant facts concerning Hemminghaus‟ job duties and conditions are not
disputed. Because the dispute is strictly about how the law applies to the
undisputed facts, this issue is appropriate for summary judgment.
The uncontroverted evidence makes clear that Hemminghaus occupied the
kind of highly accountable and closely supervised position exempted by the
statute. Hemminghaus held her office “during the pleasure of the judge” who
appointed her. Mo. Rev. Stat. § 485.040. Gaertner had the sole and final say over
the decision to hire her as his official reporter, and he had the sole and final say
over the decision to fire her. During her tenure in his division, no one other than
Gaertner ever acted as Hemminghaus‟ supervisor, and she reported directly to
Gaertner rather than to an intermediary. Hemminghaus testified that she never
took leave without checking with Gaertner first, and that she never had someone
else fill in for her without talking to Gaertner ahead of time. Both her hours and
her duties were dictated by Gaertner. In short, the record makes clear that he
– 15 –

supervised Hemminghaus closely, had frequent, if not daily, contact with her,
intervened in interoffice disputes, and relied heavily upon her to effectuate the
business of the court. The nature of their working relationship demonstrates that
Hemminghaus was a member of Gaertner‟s personal staff.
It is not Hemminghaus‟ title that excludes her from the FMLA, but rather the
circumstances of her working relationship with Gaertner. Compare Curl v. Reavis,
740 F.2d 1323, 1328 (4th Cir. 1984) (under Title VII, deputy sheriff was not
elected sheriff‟s personal staff in part because deputy was not personally
supervised by sheriff), with Owens v. Rush, 654 F.2d 1370, 1376 (10th Cir. 1981)
(under Title VII, deputy sheriff was elected sheriff‟s personal staff in part because
deputy admitted he had a “very close working relationship with the sheriff”).
Although not all court reporters – or even all official court reporters – may
necessarily be excluded from FMLA coverage, it is clear that Hemminghaus was.
See Gunaca v. State of Texas, 65 F.3d 467, 468–69 (5th Cir. 1995) (investigator
working for district attorney was exempt personal staff where district attorney
closely supervised his work on a daily basis and relied heavily on his work,
plaintiff was accountable only to the district attorney, and they shared a small
office space); Wall v. Coleman, 393 F. Supp. 826, 831 (S.D. Ga. 1975) (assistant
district attorney was personal staff under Title VII in part because assistant only
worked for one particular district attorney, not all county district attorneys); Birch
– 16 –

v. Cuyahoga Cnty. Probate Court, 392 F.3d 151, 158–59 (6th Cir. 2004)
(magistrate was presiding probate judge‟s personal staff under Title VII in part
because magistrate reported directly to judge and magistrate‟s duties were “heavily
interdependent” with those of judge); Baker, 41 F. Supp. 2d at 987 (plaintiffs, who
were deputy sheriffs, dispatchers and jailers, were not sheriff‟s personal staff
because sheriff did not attend to day-to-day supervision of their office; schedule
their work shifts; take their grievances; make adjustments to their schedules; or set
meetings to discuss official office policy; and plaintiffs were not part of sheriff‟s
command staff and may not have contact with him for weeks at a time).
Hemminghaus‟s reliance on opinion letters from the Department of Labor‟s
Wage and Hour Division, which conclude that court reporters do not fall under the
personal-staff exception of the FLSA, is misplaced. Those letters5 are merely the
Wage and Hour Division‟s opinion about how certain court decisions should be
interpreted. Their authors did not consider the facts of this case, and this court is
not bound to follow the opinion letters. In light of my own interpretation of the
case law, I do not find them particularly helpful.
Because Gaertner held an elective office and Hemminghaus was a member
of Gaertner‟s personal staff, she was not eligible for FMLA leave. Therefore,
defendants are entitled to summary judgment on her FMLA claim.
Opinion Letters, Dep‟t of Labor, Wage & Hour Div., 1998 WL 1147737 (Nov. 27, 1998) &
2005 WL 3308594 (Aug. 26, 2005), 2005 letter reprinted as Pl.‟s Ex. 42.
5

– 17 –

IV.

First Amendment Retaliatory Discharge Claim
In her remaining claim, Hemminghaus alleges defendant Gaertner

discharged her because she spoke to media, colleagues, and others about her
children‟s abuse and publicly criticized the prosecutor‟s office and the police
department. She contends that her speech was protected by the First Amendment,
and that Gaertner violated her First Amendment rights by terminating her
employment. She has sued Gaertner in his individual capacity as well as his
official capacity. I conclude that Gaertner is entitled to qualified immunity on her
claim against him in his individual capacity, and her claim against him in his
official capacity is moot.
A.

Qualified Immunity
A public official, sued in his individual capacity, is entitled to qualified

immunity if his conduct “does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Bartlett v.
Fisher, 972 F.2d 911, 914 (8th Cir. 1992) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). To determine whether qualified immunity is warranted in a
retaliatory discharge case, a court applies a two-prong test: (1) whether the plaintiff
has alleged violation of a constitutional right and (2) whether that right was
“clearly established” at the time of discharge. Sexton v. Martin, 210 F.3d 905, 910

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(8th Cir. 2000); see also Pearson v. Callahan, 555 U.S. 223 (2009) (courts have
discretion to address these two prongs in any order).
Hemminghaus has alleged that Gaertner violated her constitutional rights by
firing her in retaliation for exercising her First Amendment right to free speech.
But this assertion alone does not settle whether her speech warranted protection
under the First Amendment nor whether her right to speak was “clearly
established.” Each of these inquiries is to be resolved by the court as a matter of
law. Fales v. Garst, 235 F.3d 1122, 1123 (8th Cir. 2000) (per curiam).
In light of concrete evidence showing Hemminghaus‟ speech impaired
working relationships, and in light of Gaertner‟s interest in impartiality and
preserving public confidence in the courts, I conclude that Hemminghaus‟ right to
speak was not clearly established and Gaertner is entitled to qualified immunity for
firing her.
a.

Public Concern
Speech by public employees is entitled to some measure of First

Amendment protection. Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). In order
to determine whether a public employee‟s speech merits protection, the court first
inquires whether the employee spoke as a citizen on “a matter of public concern.”
Fales, 235 F.3d at 1123 (quotation marks omitted). If so, the court goes on to
determine whether the employee‟s interest in speaking outweighs her employer‟s
– 19 –

interest in “promoting the efficiency of the public service it performs through its
employees.” Lindsey v. City of Orrick, 491 F.3d 892, 900 (8th Cir. 2007) (citing
Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). To merit protection, a public
employee‟s speech must meet each of these requirements.
Gaertner first argues that Hemminghaus‟ speech was not of public concern
because it related only to her “private interest” in the prosecution of her children‟s
abuser. This argument ignores uncontroverted evidence showing Hemminghaus
continued to speak out about child abuse and prosecutorial discretion after she
knew the nanny would not be prosecuted in her children‟s case. (See Gaertner
Dep., 114:4–18; Defs.‟ Ex. 20.) In addition, even if Hemminghaus‟ speech was
purely self-interested, Gaertner‟s contention that such speech is always unprotected
contradicts established precedent in this circuit. See Calvit v. Minneapolis Public
Schools, 122 F.3d 1112, 1114 (8th Cir. 1997) (school employee‟s criticism of child
abuse reporting policy was matter of public concern even if speech was motivated
by self-interest); Belk v. City of Eldon, 228 F.3d 872, 880 (8th Cir. 2000) (speech
made for “personal motives” may be protected if “the speech itself addresses
matters of public concern”); see also McGee v. Public Water Supply, 471 F.3d 918,
921 (8th Cir. 2006). In light of the record and the case law, I conclude that
Hemminghaus‟ speech related to a matter of public concern.

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b.

Pickering Balancing Test
This determination does not fully resolve whether Hemminghaus‟ speech

was entitled to First Amendment protection. To settle that question, I would
normally turn to the Pickering balancing test. 391 U.S. at 568. However, before
Pickering can be put at issue at all, a public employer must put forth evidence that
the speech in question had an adverse impact on the efficiency of the employer‟s
operations. See Lindsey, 491 F.3d at 900. In other words, to trigger Pickering, the
employer must show “with specificity” that the employee‟s speech created
workplace disharmony, impeded the employee‟s performance, or impaired
working relationships. Id.
In Lindsey, the Eighth Circuit held that a mayor‟s conclusory statements that
the employee‟s speech had an “adverse effect” on working relationships and
“undermined” City Council authority were insufficient to trigger the Pickering test.
491 F.3d at 901. In support of its contention that Pickering should be applied, the
mayor offered her own testimony that the employee had argued with the Council
and the mayor. The Eighth Circuit concluded that this “scant evidence” did not
show impaired working relationships or actual disruption of any kind. Id. at 900.
Therefore, Pickering did not apply, and the mayor was not entitled to qualified
immunity for firing the employee.

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Here, unlike Lindsey, the defendants have put forth specific evidence
demonstrating that Hemminghaus‟ speech disrupted the workplace. Two of
Hemminghaus‟ colleagues testified in depositions about her speech. Probate
employee Kim Nakashima-Moran called Gaertner on two separate occasions to tell
him Hemminghaus‟ speech made her uncomfortable. Senior probate employee
Gail Crane testified that Hemminghaus had made a remark about Gaertner that she
considered threatening. Hemminghaus herself testified that she believed Gaertner
was responsible for hindering the prosecution of her children‟s case. Most
tellingly, assistant prosecutor John Evans, a frequent litigant and officer of the
court, called Gaertner to alert him that some of Hemminghaus‟ speech was
harassing, had caused her to be escorted from the police department, and almost
caused her to be arrested. Together, these statements constitute concrete evidence
that Hemminghaus‟ speech caused actual disruption of working relationships
within and outside of Gaertner‟s division. See Fales, 235 F.3d at 1124 (defendant
school showed workplace disharmony and negative impact on efficient
administration where teacher‟s speech about special education issues led to
confrontations with colleagues, factions among faculty, and hiring of outside
mediator). I conclude that Gaertner has made the threshold evidentiary showing
required to put the Pickering balance at issue.

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Once at issue, the Pickering balancing test goes to both prongs of the
qualified immunity inquiry: not only whether a public employee‟s speech is
entitled to First Amendment protection, but whether that right has been clearly
established. This is because Pickering is so fact-intensive that rights involving its
application have only rarely been “clearly established” for purposes of qualified
immunity. Bartlett, 972 F.2d at 916.
Considering the complexity of Pickering‟s balancing test in this particular
case, I conclude that regardless of whether all of Hemminghaus‟ abundant speech
was protected under Pickering, her right to engage in such speech was not clearly
established at the time she was fired. Given her position as court reporter and the
weight of Gaertner‟s interest in impartiality and public confidence in the courts, it
was reasonable for Gaertner to be concerned about the potential conflict of interest
that Hemminghaus‟ criticisms of the prosecutor may have created. See McDaniel
v. Woodard, 886 F.2d 311, 317 (11th Cir. 1989) (state judge entitled to immunity
for firing secretary who helped district attorney investigate case on behalf of her
son in part because “the importance of keeping the judicial office separate from
prosecutorial functions was far-reaching and crucial”); Fabiano v. Hopkins, 352
F.3d 447, 448–51 (1st Cir. 2003) (supervisors entitled to immunity for firing city
employee who had filed suit against city zoning board in part because their concern
about the potential conflict of interest was reasonable); Wersal v. Sexton, 674 F.3d
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1010, 1021 (8th Cir. banc 2012) (upholding clause in Minnesota‟s judicial conduct
code in part because state has compelling interests in preserving impartiality and
preserving the appearance of impartiality).
In sum, the undisputed evidence does not show that, by firing
Hemminghaus, Gaertner violated any of her clearly established statutory or
constitutional rights. Therefore, he is entitled to qualified immunity as to
Hemminghaus‟ § 1983 claim for damages against him in his individual capacity.
B.

Official Capacity Claim
As I stated before, Hemminghaus has sued Gaertner in his official capacity,

as well as his individual capacity, for First Amendment retaliation. Because an
official-capacity suit is treated as an action against the State, a state officer is not
entitled to qualified immunity when sued in his official capacity. Johnson v.
Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). In addition, money
damages and other retrospective relief are not available in an official-capacity suit,
but prospective injunctive relief may be. Serna v. Goodno, 567 F.3d 944, 952 (8th
Cir. 2009).
Here, Hemminghaus has not sufficiently described what relief she would
like from Gaertner in his official capacity. In her amended complaint, the only
specific injunctive relief she requests is reinstatement. (Am. Compl., pp. 6–7.)
However, Hemminghaus testified in her deposition that that she does not wish to
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work in Missouri, that she did not think she was able to work at all at that point,
and that there “would be no way on earth” she would take a job with Gaertner.
(Hemminghaus Dep. 273:17–276:15.) In addition, as she acknowledges, Gaertner
is no longer a circuit judge, so he would not be able to rehire her in the same
position. She also testified that there were no jobs available and she “wouldn‟t
want to take somebody else‟s position.” (Id. 275:15–16.) Given Hemminghaus‟
testimony and Gaertner‟s elevation to the Missouri appellate court, it appears that
Hemminghaus does not seek any injunctive relief whatsoever. She has renounced
the injunctive relief she once sought, so her official-capacity claim is moot. See
Beck v. Mo. State High Sch. Activities Ass’n, 18 F.3d 604, 605 (8th Cir. 1994) (per
curiam); see also Medina v. Columbus State Cmty. Coll., 2:08CV154, 2009 WL
2524619, at *3 (S.D. Ohio Aug. 18, 2009) (where prospective student sued for
admission to dental program but then rejected it when offered, case was moot).
To the extent that she does still seek injunctive relief, there is none I could grant
that would effectively redress her alleged injury. See Beck, 18 F.3d at 605; see
also Glister v. Primebank, 10CV4084 MWB, 2012 WL 3518507, at *32 (N.D.
Iowa Aug. 14, 2012) (dismissing as moot plaintiff‟s employment discrimination
claim, where plaintiff sought policy and training changes, because there was no
evidence plaintiff would ever work for that employer again). Therefore,
Hemminghaus‟ official-capacity claim is dismissed as moot.
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V.

Conclusion
Hemminghaus was not eligible for FMLA leave because she was a member

of Gaertner‟s personal staff, so defendants are entitled to summary judgment on
her FMLA claim.
In addition, Gaertner is entitled to qualified immunity on Hemminghaus‟
First Amendment retaliation claim against him in his individual capacity.
Hemminghaus‟ official-capacity suit is moot because she has disavowed her
interest in reinstatement and no other form of injunctive relief would effectively
redress her alleged injury. Therefore, defendants are also entitled to summary
judgment on Hemminghaus‟ First Amendment claims.
Accordingly,
IT IS HEREBY ORDERED that defendants‟ motion for summary
judgment [#69] is granted.
IT IS FURTHER ORDERED that:
Defendants‟ motion to strike the 2006-2007 audio recordings produced by
plaintiff [#55] is denied as moot.
Defendants‟ motion to strike testimony of plaintiff‟s designated medical
expert witnesses [#68] is denied as moot.
Plaintiff‟s motion to strike reply to response to motion [#84] is denied as
moot.
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IT IS FINALLY ORDERED that the portion of my order dated January
11, 2013 [#89] stating that I will schedule a telephone conference for the purpose
of selecting a new trial date is vacated.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 13th day of February, 2013.

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