United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2928
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Jane Porter, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
City of Lake Lotawana; *
Art Van Hook, *
*
Appellees. *
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Submitted: April 11, 2011
Filed: August 25, 2011
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Before WOLLMAN and MELLOY, Circuit Judges, and MILLER,1 District Judge.
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MILLER, District Judge.
Jane Porter appeals from the district court’s2 orders granting summary
judgment in favor of the City of Lake Lotawana and its mayor, Art Van Hook, and
the subsequent dismissal of her wrongful termination and retaliation claims. On
1
The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas, sitting by designation.
2
The Honorable Robert E. Larsen, United States Magistrate Judge for the
Western District of Missouri, who presided over the case with the consent of the
parties pursuant to 28 U.S.C. § 636(c)(1).
appeal, Porter reasserts that the City breached her employment contract and that she
established triable issues of fact as to her retaliation claims. For the reasons set forth
below, we affirm.
I.
Jane Porter worked for the City of Lake Lotawana, Missouri from 1996 until
she was terminated in July 2006. In January 2006, two of Porter’s co-workers,
Rhonda Littrell and Toni Burgess, met with the mayor, Art Van Hook, to complain
about Porter. Littrell told Van Hook that she saw a credit card statement indicating
that Porter charged several personal items to the City. It is undisputed that Porter
made a number of personal purchases with the City’s Visa card and that in February
2006, Van Hook ordered Porter to stop. It is also undisputed that Van Hook ordered
Porter to surrender the City’s Visa and Walmart credit cards in March 2006, after
Porter acknowledged that she had made several personal purchases with the City’s
Walmart card.
Thereafter, Porter memorialized her perspective on these events. On April 12,
2006, she prepared a “note to file” stating that Van Hook “grilled” her during the
previous week as to the Walmart purchases. On April 20, 2006, Porter prepared a
memorandum stating “[w]hile doing an internal audit, I discovered I had by accident
made charges for myself on the City’s card. It was a mistake, and one which I am
truly sorry for. Therefore, I am depositing $239.09 in the General Fund Account to
cover these charges which I mistakenly made.” The same day, Porter drafted a check
to reimburse the City for some of the improper charges she made during 2005 on the
Walmart card.
On May 24, 2006, Porter was re-appointed to her position as city clerk for a
term of one year. The next day, she was placed on administrative leave and was
informed that the City was retaining an outside auditor to investigate payroll and
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time-card discrepancies, unauthorized paid vacation, unauthorized compensatory
time, questionable credit card transactions, unauthorized sewer billing adjustments,
and failure to properly maintain city records in an orderly fashion.
On July 26, 2006, Porter wrote a letter to the city attorney stating that she was
a victim of age and gender discrimination and was subjected to a hostile work
environment. The city attorney sent an email to Porter on the morning of July 28,
acknowledging receipt of her letter. Later that day, the audit firm investigating the
City’s records reported to the board of aldermen that Porter’s misuse of City credit
cards was an “obvious red flag” among “a lot of red flags,” and that the purchases
made by Porter included liquor, jewelry, food, and clothing. Immediately after the
presentation, Van Hook recommended that the board of aldermen terminate Porter’s
employment. The board, however, could not proceed because one of the aldermen
abstained.
The board met again on July 31, 2006, and voted four-to-three in favor of
terminating Porter, with the mayor casting the tie-breaking vote. The aldermen voting
in favor of termination stated that they did so based on their review of City credit card
records, the audit firm’s presentation, and their belief that Porter engaged in
inappropriate activities.
Porter filed suit alleging: (1) age discrimination under the Age Discrimination
in Employment Act (ADEA); (2) gender discrimination under Title VII of the Civil
Rights Act of 1964; (3) retaliation under Title VII, the ADEA, and the Missouri
Human Rights Act (MHRA); (4) undefined violations of the MHRA; (5) wrongful
termination; and (6) defamation. On March 31, 2009, the district court granted Van
Hook’s motion for judgment on the pleadings as well as Van Hook’s and the City’s
motions for summary judgment and dismissed all of Porter’s claims except her tort-
based wrongful termination claim. The district court denied summary judgment as
to Porter’s tort-based wrongful termination claim finding that a genuine issue of fact
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remained as to whether the City’s liability insurance waived the City’s sovereign
immunity from tort liability. The district court dismissed Porter’s contract-based
wrongful termination claim because Missouri law requires contracts with
municipalities to be in writing and Porter failed show that she had a written contract.
On June 21, 2010, the district court entered a second summary judgment order.
In that order, the court reaffirmed the findings in the March 2009 order as to Porter’s
lack of an enforceable contract. The court, however, reconsidered its finding as to
Porter’s tort-based wrongful termination claim, and found that the City’s liability
insurance did not waive the City’s sovereign immunity from tort liability. For this
reason, the district court granted summary judgment to the City on Porter’s tort-based
wrongful termination claim.
Porter appeals only two of the district court’s findings. First, she appeals the
dismissal of her contract-based wrongful termination claim, asserting that the district
court erred in finding that she failed to produce evidence of an enforceable
employment contract. Second, she appeals the dismissal of her retaliation claims,
arguing that the district court erred in finding that there was no causal connection
between her July 26, 2006, letter to the city attorney and her termination.
II.
“Summary judgment is appropriate when there are no genuine issues of
material fact, and the moving party is entitled to judgment as a matter of law.”
Bearden v. Int’l Paper Co., 529 F.3d 828, 831 (8th Cir. 2008). “We review the
district court’s grant of summary judgment de novo and view the evidence in the light
most favorable to the nonmoving party.” Id.
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III.
The district court’s summary judgment orders dismissing Porter’s contract-
based wrongful termination claim are affirmed. Although Porter brought wrongful
termination claims based on tort and contract theories, she concedes that the City is
sovereignly immune from tort liability. Therefore, the only wrongful termination
issue on appeal is whether the district court correctly found that Porter failed to show
that she had an enforceable employment contract.
Missouri law requires contracts with municipalities to be in writing, and it is
undisputed that Porter never had a written employment contract. Mo. Rev. Stat. §
432.070. The doctrine of substantial compliance, however, applies where the terms
of a contract are memorialized in an alternative form, such as in the minutes of a
board meeting. See First Nat’l Bank of Stoutland v. Stoutland Sch. Dist. R2, 319
S.W.3d 570, 573 (Mo. 1958). Notwithstanding this doctrine, the record is devoid of
any meeting minutes or other proof indicating that Porter had an employment
contract. Without such evidence, the City was entitled to summary judgment on
Porter’s wrongful termination claim. We decline to address Porter’s argument that she
was terminated in a procedurally deficient manner under Lake Lotawana City Code
§ 115.040 because, without an enforceable contract or a viable tort claim, no relief
can be granted.
IV.
The dismissal of Porter’s retaliation claims is affirmed because nothing in the
record indicates that Porter’s opposition to unlawful discrimination was a
contributing factor in her termination. The MHRA provides that “[i]t shall be an
unlawful discriminatory practice . . . [t]o retaliate or discriminate in any manner
against any other person because such person has opposed any practice prohibited by
this chapter . . . .” Mo. Rev. Stat. § 213.070(2). A plaintiff proceeding under this
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section must prove that her opposition to unlawful discrimination was a contributing
factor in the adverse employment decision of her employer. See Wallace v. DTG
Operations, Inc., 563 F.3d 357, 360 (8th Cir. 2009) (citing Hill v. Ford Motor Co.,
277 S.W.3d 659, 665 (Mo. 2009)). This standard is more lenient than the standard
applied in Title VII and ADEA retaliation cases, in which a plaintiff must prove that
her opposition to unlawful discrimination was the “but for” cause of the employer’s
adverse action. See Clark v. Matthews Intern. Corp., 639 F.3d 391, 398 (8th Cir.
2011). Indeed, under Missouri law, Porter can recover so long as her complaint of
discrimination was “a reason” for her termination, whereas under federal law, Porter
can recover only if her complaint of discrimination was “the reason” for her
termination. Id.; Wallace, 563 F.3d at 360.
To survive summary judgment on her MHRA retaliation claim, Porter must
show that a genuine issue of fact exists as to whether her letter to the city attorney
was a contributing factor in her termination. See Daugherty v. City of Maryland
Heights, 231 S.W.3d 814, 820 (Mo. 2007). The record indicates that Porter was
terminated because of her inappropriate activities. Porter’s position that she was
terminated for penning a letter to the city attorney in which she complained of
discrimination is only plausible if the decision makers had knowledge of her letter
and its contents. Van Hook and the aldermen who voted to terminate Porter provided
sworn testimony that they were totally unaware that Porter had ever expressed any
concerns about discrimination when they voted in favor of termination. Porter offers
no evidence controverting that testimony. Therefore, no reasonable jury could find
that Porter’s opposition to unlawful discrimination played any role in her discharge.
Consequently, summary judgment on Porter’s MHRA retaliation claim was
appropriate.
For the same reason that Porter does not succeed under the more lenient
MHRA analysis, she cannot succeed under the more stringent standard applied in
Title VII and ADEA retaliation cases. See Robinson v. Porter, 453 F.3d 990, 994
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(8th Cir. 2006) (holding that the causation element of the prima facie case requires
proof that decision maker was aware of plaintiff’s protected activity at time of
adverse employment action). Accordingly, summary judgment on Porter’s Title VII
and ADEA retaliation claims was proper.
For all of the reasons set forth above, the district court’s orders granting
summary judgment and judgment on the pleadings in favor of the City and Van Hook
are affirmed.
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