United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-1024
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Janice Gordon, *
*
Appellant, *
*
v. *
* Appeal from the United States
City of Kansas City, MO; * District Court for the
Robert Mohart; Lester Washington; * Western District of Missouri
Isaiah Pickett; Peter Yelorda; *
Phillip Dexter Larimer, *
*
Appellees. *
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Submitted: October 18, 2000
Filed: February 12, 2001
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Before McMILLIAN, BOWMAN and LOKEN, Circuit Judges.
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McMILLIAN, Circuit Judge.
Janice Gordon (appellant) appeals from a final order entered in the United States
District Court1 for the Western District of Missouri granting summary judgment in
favor of the City of Kansas City, Missouri, (the City) and various employees of the City
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
(collectively appellees) on her federal and state law claims arising out of the
termination of her employment as the head of the City's Animal Control Division.
Gordon v. City of Kansas City, No. 98-0951-CV-W-4 (W.D. Mo. Nov. 2, 1999)
(hereinafter “slip op.”). For reversal, appellant argues that the district court erred in
holding that there is no genuine issue of material fact and appellees are entitled to
judgment as a matter of law on (1) her First Amendment free speech claim brought
pursuant to 42 U.S.C. § 1983 and (2) her state law claims alleging negligent and
intentional infliction of emotional distress. For the reasons discussed below, we affirm.
Jurisdiction
Jurisdiction in the district court was proper based upon 28 U.S.C. §§ 1331, 1367,
and 1441. Jurisdiction in this court is proper based upon 28 U.S.C. § 1291. The notice
of appeal was timely filed pursuant to Fed. R. App. P. 4(a).
Background
The following summary of background facts is based upon the district court's
summary judgment order, except as otherwise indicated. See slip op. at 1-2 & n.1. In
1996, appellant was the "division head" of the City's Animal Control Division. The
same year, the City Manager, Larry Brown,2 began efforts to implement a city-wide
policy known as "transformation," which called for the privatization of some of the
City's governmental functions, including some within the Animal Control Division. On
2
According to the parties' briefs on appeal, at all relevant times the City Manager
held the highest-ranking appointed position in the City, the Department of
Neighborhood and Community Service was under the City Manager's jurisdiction, and
the Animal Control Division was within the Department of Neighborhood and
Community Service. Appellant therefore ranked several steps below the City Manager.
See Brief for Appellant at 8; Brief for Appellees at 5.
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or about August 19, 1996, appellant began circulating a petition ("the petition"), which
urged "the removal of City Manager Larry Brown and his 'pods' and the return of city
service provision to the professional staffs." Id. at 2. Appellant solicited signatures for
the petition from within the Animal Control Division and from other departments in the
City government. During the morning of August 19, 1996, appellant sent the petition
by facsimile from the Animal Control Division to the Public Works Department, and,
during her lunch hour that day, she drove to the Department of Conventions and
Entertainment to present the petition for more signatures.
On August 21, 1996, defendant Lester Washington, the Assistant Director of
Neighborhood and Community Service, and, at that time, the Acting Director of
Neighborhood and Community Service, suspended appellant pending further
investigation of her conduct in circulating the petition. Washington thereafter
recommended that appellant be terminated. Following a hearing, appellant was
terminated. She appealed to the Kansas City Personnel Appeals Board, which upheld
her termination.
Appellant initiated the present action in Missouri state court. Appellant's
complaint alleged, among other things, that she had been terminated for exercising her
rights under the First Amendment free speech clause and that appellees had negligently
and intentionally caused her to suffer emotional distress. Appellees removed the case
to federal court and moved for summary judgment.
In considering appellant's First Amendment claim in the context of appellees’
motion for summary judgment, the district court directly addressed the claim on its
merits.3 The district court applied the legal standards established by the Supreme Court
in Connick v. Myers, 461 U.S. 138 (1983) (Connick), and Pickering v. Board of
3
Appellees had also moved for summary judgment on the basis of a qualified
immunity defense.
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Education, 391 U.S. 563 (1968) (Pickering), and previously applied by this court in
Shands v. City of Kennett, 993 F.2d 1337 (8th Cir. 1993) (Shands), Crain v. Board of
Police Commissioners, 920 F.2d 1402 (8th Cir. 1990) (Crain), and many other cases.
See slip op. at 4-8. The district court determined that: “[t]he specific circumstances of
this case dictate that the Court give substantial weight to the time, place and manner
of [appellant’s] speech”; appellant’s petitioning activity was “inherently disruptive to
. . . work place harmony” despite the lack of evidence of any special need for harmony
or any actual disruption of city government operations; and her petitioning activities
adversely affected her own “ability to perform her duties and the efficiency of the
workplace.” See id. at 6-7. The district court concluded:
In sum, . . . application of the Pickering balance to the case at bar
results in a finding in favor of [appellees]. While [appellant’s] speech
was on a matter of public concern, and even can be seen as having a high
degree of public interest, the other factors in the balance are entitled to
more weight on the facts of this case and tip the scale in favor of the
government as an employer. Accordingly, [appellees] are entitled to
summary judgment on [appellant’s] § 1983 claim based on her First
Amendment right to free speech.
Id. at 8.
On appellant's state law claims of negligent and intentional infliction of emotional
distress, the district court observed that, because appellant had suffered no physical
injury, she was required under Missouri law to produce evidence "in the form of 'expert
medical testimony that the emotional distress or mental injury was medically diagnosed
and of sufficient severity as to be medically significant.'" Id. at 9 (quoting Van Eaton
v. Thon, 764 S.W.2d 674, 676 (Mo. Ct. App. 1988) (Van Eaton)). The district court
held:
The medical records submitted by [appellant] fail to demonstrate
that the emotional distress she alleges was of sufficient severity as to be
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medically significant. Moreover, the records do not amount to expert
medical testimony on this issue. [Appellant] could have produced an
affidavit from the treating physician setting forth that the distress was
medically significant if that indeed were the case. Because no such proof
exists in the record, the Court must conclude that [appellees] are entitled
to summary judgment on [appellant’s] claims of intentional and negligent
infliction of emotional distress.
Id. (footnote omitted).4
The district court granted summary judgment for appellees on each of appellant's
claims (some of which are not at issue in the present appeal), and final judgment was
entered for appellees. Appellant timely appealed.
Discussion
We review a grant of summary judgment de novo. The question before the
district court, and this court on appeal, is whether the record, when viewed in the light
most favorable to the non-moving party, shows that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Where the unresolved
issues are primarily legal rather than factual, summary judgment is particularly
appropriate. See Crain, 920 F.2d at 1405-06.
4
In a footnote, the district court also noted that, to the extent appellant's claims
of negligent and intentional infliction of emotional distress were asserted against the
City and the individual appellees in their official capacities, those claims were barred
(subject to some exceptions not applicable in the present case) by the doctrine of
sovereign immunity under Mo. Ann. Stat. § 537.600. See slip op. at 9-10 n.3 (citing,
e.g., Aiello v. St. Louis Comty. College Dist., 830 S.W.2d 556, 558 (Mo. Ct. App.
1992)).
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First Amendment free speech claim
Appellant first argues that the district court erred in holding that appellees are
entitled to judgment as a matter of law on her First Amendment free speech claim. In
anticipation of appellees' argument to the contrary, appellant begins by defending the
district court’s threshold determination that the speech in question was “on a matter of
public concern, and even [could] be seen as having a high degree of public interest.”
Slip op. at 8. In support of this determination, appellant argues that the evidence before
the district court showed that she had circulated the petition in response to Brown's
proposal to implement his "transformation" policy, which called for the privatization
of many governmental functions. She maintains that she feared her department would
lose jobs and resources, while at the same time be expected to provide better public
services. In other words, she contends, she was concerned not about her own job but,
rather, about the likelihood that taxpayers would end up paying more and getting less.
She also alleges that a citizen's complaint to her department about the quality of City
services triggered her thinking about a citizens’ petition. Furthermore, she argues, at
the time she began circulating the petition, the "transformation" proposal had already
been discussed in the news and in churches, which shows that it already was a matter
of public concern. See Brief for Appellant at 18-20. Upon review, we agree with the
district court that the speech in question – the petition itself and appellant's expressive
conduct in circulating it – touched on a matter of public concern.
Appellant argues, however, that the district court erred at the next stage of the
Connick-Pickering analysis. See id. at 20-30. She contends that, in weighing her
interests as a citizen-employee against those of the City as government-employer, the
district court improperly relied on genuinely disputed facts, facts inconsistent with or
unsupported by the evidence, and credibility determinations and inferences drawn in
favor of appellees. Indeed, she argues, many of the facts assumed by the district court
to be true are themselves logically inconsistent. Appellant also maintains that she
sufficiently established a causal connection between her protected speech and her
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termination, as required by applicable case law. See id. at 31 (citing Lewis v. Harrison
School Dist. No. 1, 805 F.2d 310 (8th Cir. 1986), cert. denied, 482 U.S. 905 (1987)).
Appellant concludes that the district court improperly usurped the role of the jury and
erroneously granted summary judgment for appellees.
Contrary to appellant's well-presented arguments, we conclude that there is no
genuine issue of material fact which undermines the district court’s Connick-Pickering
analysis. The district court correctly understood that, according to the Connick-
Pickering legal framework, it was required to balance appellant's interest in engaging
in the protected speech against the interest of the City in promoting the efficiency of the
public services performed through its employees. Belk v. City of Eldon, 228 F.3d 872,
880 (8th Cir. 2000) (Belk) (quoting Pickering, 391 U.S. at 568). Factors to be
considered in balancing these interests include: (1) the need for harmony in the
workplace; (2) the closeness of the working relationship between appellant and her co-
workers and the potential impact that the speech in question might have on that
relationship; (3) the time, place, and manner of her speech; (4) the context in which the
dispute arose; (5) the degree of public interest in the speech; and (6) whether the
speech interfered with appellant's ability to perform her duties. See id. (citing Shands,
993 F.2d at 1344)). While the Connick-Pickering balancing test presents a question of
law for the courts to decide, any underlying facts that are material and in genuine
dispute must be submitted to a fact finder. Shands, 993 F.3d at 1342. Moreover, if the
government employer cannot produce some evidence showing that the employee's
speech disrupted the workplace, the court need not proceed to the balancing stage
absent special circumstances. Belk, 228 F.3d at 881 (citing Sexton v. Martin, 210 F.3d
905, 911-12 (8th Cir. 2000)). "Where there is no evidence of disruption, resort to the
Pickering factors is unnecessary because there are no government interests in efficiency
to weigh against First Amendment interests." See id. This "disruption" inquiry focuses
on whether the speech had an adverse impact on the workplace. See id. (citing Sexton
v. Martin, 210 F.3d 905, 911-12 (8th Cir. 2000)).
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Proceeding to the disruption inquiry in the present case, it is undisputed that, on
or about August 19, 1996, appellant solicited signatures for the petition from her
subordinates in the Animal Control Division. At that time, according to appellant's own
deposition testimony, she had either direct or indirect control over virtually every
aspect of the Animal Control Division's operations, including personnel matters, and
she exercised that control with nearly complete autonomy. See Appendix at 96
(deposition of Janice Gordon at 20-22). Therefore, by soliciting the signatures of her
subordinates, appellant presented them with a Hobson's choice – they could defy her
wishes or they could sign a petition for the removal of the highest-ranking appointed
official in the City administration.5 Under these circumstances, appellant's conduct
amounted to an abuse of power and would inevitably have had an adverse impact on
the workplace. Thus, while it may be true that the conduct in question occurred largely
"off the clock" and did not interfere with day-to-day operations, and while appellant
may not have overtly pressured her subordinates to sign the petition, we agree with the
district court that the speech in question was inherently disruptive.
We now turn to the balancing of interests, which, as we have noted, presents a
question of law for the courts to decide. We emphasize that the Connick-Pickering
balancing test is flexible; the weight given to any one factor is dependent upon the
specific circumstances of the particular case. Shands, 993 F.2d at 1344. We also are
mindful of the well-established principle that a government employer must be afforded
wide discretion and control in its management of personnel matters and other internal
affairs. See Connick, 461 U.S. at 151. Government predictions of harm, when used
to justify restrictions on speech of government employees, are generally afforded
greater deference than such predictions when used to justify restrictions on speech of
the public at large. See Waters v. Churchill, 511 U.S. 661, 671-75 (1994).
5
One of appellant's subordinates, Dexter Larimer, indicated in his deposition
testimony that he felt coerced by the circumstances. See Appendix at 197 (deposition
of Dexter Larimer at 63-64).
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Applying these principles, we hold, upon de novo review, that the district court
did not err in concluding that the City's legitimate concerns about workplace harmony
and efficiency outweighed appellant's interest in engaging in the protected speech – at
the time and place, and, especially, in the manner that she chose. For the same reasons
that we agree with the district court that the speech was inherently disruptive, we also
agree with the district court that, "[w]hile [appellant’s] speech was on a matter of
public concern, . . . the other factors in the balance are entitled to more weight on the
facts of this case and tip the scale in favor of the [City] as an employer." Slip op. at 8.
We therefore hold that the district court did not err in granting summary judgment for
appellees on the merits of appellant’s § 1983 First Amendment claim.6
State law claims of negligent and intentional infliction of emotional distress
Appellant next argues that the district court erred in holding that appellees are
entitled to judgment as a matter of law on her state law claims of negligent and
intentional infliction of emotional distress. As noted above, the district court granted
appellees summary judgment on these claims on the ground that appellant’s proffered
medical evidence failed to create a genuine issue of fact as to whether her alleged
emotional distress or mental injury was sufficiently severe to be medically significant.
Id. at 9. In challenging that holding, appellant maintains that she submitted to the
district court medical records, among other evidence, showing that she became
depressed and overly anxious, had difficulty sleeping, was forced to take medication,
and gained forty pounds as a result of her termination. She also disputes the district
court's reliance on Van Eaton, 764 S.W.2d at 676 (holding, under Missouri law, that
trial court should have directed a verdict at trial in favor of the defendant on the
plaintiff's claim of intentional infliction of mental distress, where "[t]here was no expert
medical testimony given in the case"). Appellant emphasizes that, in Van Eaton, the
6
Having disposed of the First Amendment issue on the merits, we need not
address the parties’ arguments related to qualified immunity.
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plaintiff was at least given an opportunity to present evidence to a jury to show that the
mental injury in question was medically diagnosable and significant. By contrast in the
present case, appellant argues, the district court improperly denied her the opportunity
to prove the medical significance of her alleged injury to a jury, notwithstanding the
fact that some of the evidence she submitted was in the form of medical records.
To state a claim of negligent infliction of emotional distress, appellant was
required to plead: (1) appellees realized or should have realized that their conduct
involved an unreasonable risk of causing distress; and (2) appellant suffered emotional
distress or mental injury that is medically diagnosable and sufficiently severe to be
medically significant. See Gibson v. Brewer, 952 S.W.2d 239, 248-49 (Mo. 1997) (en
banc) (citing Bass v. Nooney Co., 646 S.W.2d 765, 772-73 (Mo. 1983) (en banc)).
To state a claim of intentional infliction of emotional distress, appellant was further
required to plead extreme and outrageous conduct which intentionally or recklessly
caused severe emotional distress resulting in bodily harm. See id. at 249 (citing
Warrem v. Parrish, 436 S.W.2d 670, 673 (Mo. 1969)). Van Eaton and other Missouri
precedents firmly establish that, "[i]n order to recover for emotional distress where no
physical injury is involved, there must be proof by 'expert medical testimony that the
emotional distress or mental injury was medically significant.'" 764 S.W.2d at 676
(quoting State ex rel. Benz v. Blackwell, 716 S.W.2d 270, 273 (Mo. Ct. App. 1986)
(citing Bass v. Nooney Co., 646 S.W.2d at 772-74)).
Upon de novo review in the present case, we decline to decide whether appellant
has established a genuine issue of fact as to the medical significance of her alleged
emotional distress or mental injury. More to the point, we hold that appellant's state
law claims of negligent and intentional infliction of emotional distress must fail because
they are based solely on the assumption that she was unreasonably and unlawfully
terminated in violation of her First Amendment rights. In light of our holding that no
such constitutional violation occurred as a matter of law, it follows that appellant has
failed as a matter of law to put in genuine controversy the allegation that appellees'
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conduct "involved an unreasonable risk of causing distress" – and, even more so, the
allegation that appellees engaged in "extreme and outrageous conduct which
intentionally or recklessly caused severe emotional distress." Gibson v. Brewer, 952
S.W.2d at 248-49 (emphasis added). We therefore hold that the district court did not
err in granting summary judgment for appellees on appellant's state law claims of
negligent and intentional infliction of emotional distress.7
Conclusion
For the reasons stated, the judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
7
Having disposed of these state law claims on the merits, we need not address
appellees' sovereign immunity argument and other related arguments raised by the
parties on appeal.
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