concurring in part and dissenting in part.
I concur in footnote 1 of the panel’s decision affirming the district court’s granting of summary judgment. I dissent from the remainder of the panel’s opinion which holds that the district court erred in granting defendant Cochran’s motion for judgment notwithstanding the verdict.
The gravamen of this case is that Taylor claims he was laid off from his position in the Water Department of the City of Coming because the newly elected mayor, E.W. Cochran, believed that Taylor was “just Jess Pulliam’s man” (Cochran’s opponent in the mayoral election).
The allocation of the burden of proof in a case of this type is two-fold. “Initially ... the burden ... [is] upon [plaintiff] to show that his conduct was constitutionally protected, and that this conduct was a ‘substantial factor’ — or to put it in other words, that it was a ‘motivating factor’ in the ... decision [to fire him].” Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). If plaintiff carries that burden the defendant may still avoid liability if he can show by a preponderance of the evidence that the same decision would have been reached in the absence of the protected conduct. Id. In granting Cochran’s motion for judgment n.o.v. the district court focused on Cochran’s burden and concluded that the evidence that the same decision would have been made “was overwhelming, and went unrebutted.” For reasons to be stated, I believe the district court’s decision in this regard was correct. In addition, I believe that the district court’s decision should be upheld on another ground argued by Cochran in his motion for judgment n.o.v. but not directly addressed by the district court — Taylor failed to show that constitutionally protected conduct was a motivating factor in his firing.
The evidence, read in the light most favorable to Taylor, does support the conclusion that Cochran harbored a constitutionally impermissible motivation. Cochran, however, did not lay off Taylor. Taylor was laid off upon unanimous vote of the city council. Cochran did not vote on that decision. The two councilmen who testified at trial (one of whom made the motion leading to Taylor’s layoff) did not disclose any constitutionally impermissible motivation for their actions.
In McGee v. South Pemiscot School District R-V, 712 F.2d 339 (8th Cir.1983), we held that where a school board’s decision to *905discharge a teacher turned on a single vote and the teacher met his Mt. Healthy burden of demonstrating impermissible motivation on the part of one board member who voted against him, he is entitled to relief. In the present case the only connection Taylor has shown between the adverse employment decision and Cochran’s impermissible motivation is that Cochran called the city council meeting. Taylor has not shown impermissible motivation by any of the councilmen who made the decision to lay him off. In McGee I was “unwilling to assume that a factor that motivates a single board member motivates the board to such an extent as to” sustain plaintiff’s burden of proof under Mt. Healthy. McGee, 712 F.2d at 345 (Henley, Senior Circuit Judge, dissenting).
Thus, in this case I am even less willing to assume that Cochran’s improper motivation which may have led to calling the council meeting should be imparted to the councilmen who ultimately made the decision to lay off Taylor. Cochran’s disposition toward Taylor simply cannot, without more, be translated into the motivating factor of the council’s decision. Mt. Healthy makes plain that it is the decision-maker’s motivation that is to be plumbed, Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576; Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 270, 97 S.Ct. 555, 566, 50 L.Ed.2d 450 (1977), not that of persons peripheral to the decision making process. Accordingly, I would hold that Taylor failed to sustain his initial burden of proof and affirm the district court’s granting of judgment n.o.v.
I also believe that the district court correctly granted judgment n.o.v. in Cochran’s favor because his evidence that the council would have reached the same decision in the absence of improper motivation went unrebutted. Cochran presented evidence that the decision to lay off two Water Department employees was for financial reasons. The panel’s argument that the jury could have found the financial explanation to be pretextual is unpersuasive. First, the panel contends that the financial condition of the Water Department was not made known to the city council until one week after Taylor was laid off. This is incorrect. Although the final yearly report did not become available until that time, the councilmen received monthly fiscal reports. The councilmen knew by looking at these monthly reports in October and November when they prepare the following year’s budget that the Water Department was experiencing financial difficulty. Thus, even though the decision to lay off Taylor was taken before the final year end financial statement was prepared, it is unrebutted that the councilmen were well aware of the Water Department’s financial condition.
The panel next contends that the financial motivation was pretextual because the city ended the year with surplus funds. This is true. A municipality, however, does not have the luxury of deficit spending as does the federal government. In addition, the Water Department needed to maintain a surplus account to cover major equipment breakdown. In fact, the yearly statements prior to Taylor’s layoff show that the Water Department’s surplus was shrinking — they were losing money.
Finally, the panel points to the fact that the city council was considering reducing the municipal water rates as evidencing a lack of financial hardship. This reduction, however, would only go into effect if the voters approved an increase of one cent in the city sales tax. When the sales tax measure failed at the polls, no further consideration was given to reducing water rates. Thus, the city council was only interested in restructuring the way Water Department revenues were raised, not reducing them.
The evidence that the Water Department was losing money was not illusory and was unrebutted. The evidentiary conflicts the panel finds are not true conflicts, but are the jury’s disregard of the unrebutted evidence.
Finally, Cochran claims that Taylor was singled out to be laid off because he was not state certified to add the chemicals to treat the city’s water. Because Taylor can *906neither read nor write, it was unlikely that he could pass the written certification test. Although there may be some doubt as to whether it was necessary for Taylor to become certified, it does not follow that either lack of certification or illiteracy was an invalid criterion for the council to apply, particularly when the potability of the city’s drinking water was concerned.
From the reversal of the judgment granting Cochran’s motion for judgment n.o.v., I respectfully dissent.