Kathy Davison v. City of Minneapolis, Minnesota Rocco Forte, in His Individual and Official Capacities

COLLOTON, Circuit Judge,

concurring in the judgment in part and dissenting in part.

Five firefighters were considered by the fire chief for three promotions that were available within the Minneapolis Fire Department between October 2002 and November 2003. One unsuccessful applicant, Kathy Davison, was an outspoken critic of the fire chief, Rocco Forte. The other four candidates apparently went about their duties quietly, expressing no public views on the fire chiefs policies or performance. As far as the First Amendment is concerned, each applicant had an equal right to a promotion. By reversing the district court’s dismissal of Davison’s discrimination claim and remanding the case for trial, the majority opinion extends the law beyond an appropriate guarantee against discrimination, and goes too far toward granting preferential treatment to an outspoken critic of a public employer. In the process, the majority sweeps aside several circuit precedents that guide our analysis of motions for summary judgment in retaliation cases. Accordingly, I respectfully dissent from that part of the opinion that reverses the judgment in favor of Forte. Because there can be no municipal liability without an underlying constitutional violation, McCoy v. City of Monticello, 411 F.3d 920, 922 (8th Cir.2005), I concur in the judgment affirming the dismissal of Davison’s claim against the city.

Like a claim of retaliation under Title VII of the Civil Rights Act, see Okruhlik v. Univ. of Arkansas, 395 F.3d 872, 878 (8th Cir.2005), a claim of retaliation for the exercise of First Amendment rights may be analyzed under two frameworks when the court is presented with a motion for summary judgment. The most common is the tripartite burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), often described as the “indirect” method of proof. Under this approach, the plaintiff must first make what our court has described as a “minimal eviden-tiary showing” necessary to establish a *663prima facie case of discrimination. E.g., Pope v. ESA Servs., Inc., 406 F.3d 1001, 1007 (8th Cir.2005). At that point, the burden of production shifts to the employer to articulate a legitimate non-retaliatory reason for the adverse employment action, but the burden of proof remains with the plaintiff to show a genuine issue of fact that an impermissible consideration was a motivating factor in the employment decision. An alternative framework, in which the burden of proof shifts to the employer to show as a matter of law that he would have made the same decision absent the plaintiffs protected activity, see Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), applies only where a plaintiff produces “direct evidence” that the employer used the plaintiffs speech as a criterion in the promotion decision. Graning v. Sherburne County, 172 F.3d 611, 615 n. 3 (8th Cir.1999); accord Duffy v. McPhillips, 276 F.3d 988, 991 (8th Cir.2002); Hudson v. Norris, 227 F.3d 1047, 1050-51 (8th Cir.2000); see also Carroll v. U.S. Dept. of Labor, 78 F.3d 352, 357 (8th Cir.1996) (“This type of Mt. Healthy/Price Waterhouse mixed motive analysis, however, applies only in ‘dual motive’ cases where the complainant produces evidence that directly reflects the use of an illegitimate criterion in the challenged decision.”) (internal quotation omitted). This well-entrenched circuit precedent is consistent with the Supreme Court’s decision in Mt. Healthy, which did not involve a motion for summary judgment, cf. Griffith v. City of Des Moines, 387 F.3d 733, 735-36 (8th Cir.2004), and which, in any event, shifted the burden of proof only after an employee produced direct evidence that he was not hired because of protected speech on a radio program. Mt. Healthy, 429 U.S. at 282-84 & n. 1, 287, 97 S.Ct. 568. The McDonnell Douglas paradigm has been regularly applied by the district courts of this circuit to resolve motions for summary judgment in First Amendment retaliation cases.10

The majority nonetheless declines to follow the methodology of Graning, Duffy, and Hudson, and opts instead for an approach that gives the plaintiff the best of both worlds. In concluding that Davison made a prima facie case, the majority relies substantially on precedents that merely shifted the burden of production under the McDonnell Douglas framework. Ante, at 656-57 (discussing Hughes v. Stottlemyre, 454 F.3d 791, 799-800 (8th Cir.2006), and Hudson, 227 F.3d at 1051); see also Hughes v. Stottlemyre, No. 04-4053, 2006 WL 3498325, at *1 (W.D.Mo. Dec. 4, 2006) (concluding on remand that McDonnell Douglas paradigm applies). Although the prima facie case requirement under McDonnell Douglas is “not onerous” and should not be “conflated with the ultimate issue of discrimination,” Rodgers v. U.S. Bank, 417 F.3d 845, 852 (8th Cir.2005), the majority treats it for purposes of summary judgment as sufficient to prove conclusively that the employer acted with retaliatory motive — regardless of the employer’s proffered legitimate non-retaliatory reasons for the promotion decisions. Ante, at 656-58; but cf. Sprenger v. Fed. Home Loan Bank, 253 F.3d 1106, 1111 *664(8th Cir.2001) (holding that an employee’s attempt to prove actual discrimination requires “more substantial evidence” than a prima facie case, because evidence of pretext and discrimination “is viewed in light of the employer’s justification”). After finding a prima facie case, the majority considers only whether the employer would have made the same decision despite his allegedly impermissible motive. Ante, at 658; see Price Waterhouse v. Hopkins, 490 U.S. 228, 254, 258, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (citing Mt. Healthy as a case that “most resemble[s] this one,” and then holding that “the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the [impermissible factor] into account.”).

I would instead follow our circuit’s predominant approach and apply the Mt. Healthy paradigm only if Davison has produced direct evidence of discrimination.11 “Direct evidence” is evidence “showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action.” Griffith, 387 F.3d at 736 (internal quotation omitted). This must be “strong” evidence that “clearly points to the presence of an illegal motive.” Id. Examples of direct evidence, in the context of sex and race discrimination, respectively, include a statement by the employer that “no woman would be named to a B scheduled job,” Burns v. Gadsden State Cmty. Coll, 908 F.2d 1512, 1517-19 (11th Cir.1990), or a statement by the person responsible for promotion decisions that “if it was his company, he wouldn’t hire any black people,” EEOC v. Alton Packaging Corp., 901 F.2d 920, 923-25 (11th Cir. 1990). See Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir.1991) (favorably citing Bums and Alton Packaging). By contrast, “statements by decisionmakers unrelated to the decisional process itself’ do not constitute “direct evidence” of discrimination. Id. at 1354 (quoting Price Waterhouse, 490 U.S. at 277, 109 S.Ct. 1775 (O’Connor, J., concurring)); see Rivers-Frison v. Southeast Mo. Cmty. Treatment Ctr., 133 F.3d 616, 619 (8th Cir.1998); Kriss v. Sprint Commc’n Co., 58 F.3d 1276, 1282 (8th Cir.1995).

*665The record generated by Davison is bereft of “direct evidence” that Chief Forte denied her a promotion based on her exercise of First Amendment rights. Her case is entirely circumstantial, and it is not supported by strong evidence that provides a “specific link” between the alleged discriminatory animus and the challenged promotion decisions. As the majority opinion demonstrates, ante, at 655-57, she relies entirely on the temporal proximity of her speech to the promotion decisions and on statements by the fire chief unrelated to the decisional process itself to support an inference of discriminatory motivation. Indeed, the majority makes no assertion that Davison has presented the sort of direct evidence required to trigger the mixed motive analysis of Mt. Healthy under Graning, Duffy, and Hudson.

Because Davison has not produced direct evidence of discrimination, McDonnell Douglas provides the proper framework for considering her claim, and the burden of proof remains with Davison throughout. Graning, 172 F.3d at 615 n. 3.12 As the record was fully developed on the motion for summary judgment, we may dispense with the sequential steps of the burden-shifting framework and focus on the ultimate question of whether there was sufficient evidence of discrimination to make a submissible case of unconstitutional action by the fire chief. Jones v. United Parcel Serv., Inc., 461 F.3d 982, 992 (8th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 2088, 167 L.Ed.2d 766 (2007); Riser v. Target Corp., 458 F.3d 817, 820-21 (8th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 1382, 167 L.Ed.2d 161 (2007). I conclude that Davison also fails to generate a submissible case under that framework.

Much of the evidence cited by Davison does little to advance her claim. Of course, the fire chief was “aware” of Davi-son’s protected activities, ante, at 656, but an outspoken employee cannot make a case of discrimination simply by showing that the employer reads the newspaper or watches television. It is not significant that the fire chief was “unhappy” with and “disheartened” by Davison’s public comments, ante, at 653, 656, for any sentient employer — accused in the media of implementing policies that led to the death of a citizen, ante, at 653 — presumably would experience similar emotions. It was undoubtedly an essential part of the fire chiefs duties, as the head of a city department, to monitor public reaction to his policies, and that he “discussed” media coverage of opposition to his policies, ante, at 653, is therefore unsurprising and insignificant. We have said many times that “temporal proximity” between protected activity and an unfavorable employment decision generally is insufficient to make a submissible case, e.g., Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en banc), and that is especially true where, as here, the employee controlled the timing of the protected activity, and *666caused it to coincide with employment decisions that were scheduled independent of the protected activity. If these facts are viewed as substantial evidence of discriminatory animus, then virtually any outspoken critic of a public employer would be able to establish a submissible case of discriminatory retaliation, and thereby gain an advantage over less vocal public servants in competitive employment decisions.

Davison also relies on evidence that after one public meeting in which she criticized the fire department’s plan, Chief Forte was “visibly upset” by her remarks and told the union president to “get [his] board under control.” As the district court observed, “the full context of the quotation is not given, so it cannot be determined what precisely Forte was referring to.” Davison v. City of Minneapolis, No. 04-3399, 2006 WL 980814, at *4 (D.Minn. Apr.13, 2006). Whether or not Davison was seeking a promotion at the time, the fire chief understandably was involved in urging the union president and the union board to support his policies. Because the comment was within the scope of what normally could be expected of a fire chief performing his duties, regardless of Davison’s employment status, this cryptic statement is a slender reed on which to base a claim of retaliatory discrimination in the promotion process.

When viewed in light of the fire chiefs explanation for the promotion decisions, see Sprenger, 253 F.3d at 1111, the proffered showing of discrimination does not attain “the dignity of substantial evidence” that is required to bring a ease to trial. See Taylor v. White, 321 F.3d 710, 715 (8th Cir.2003) (internal quotation omitted). Chief Forte made the promotion decisions after receiving a rank ordering of three candidates who were scored by an interview panel. On the second and third occasions, Forte promoted the candidate with the highest score from the interview panel — Tim Thomas and Denise Bryn, respectively. For the first position, the fire chief promoted Jennifer Cornell, who received a score of 87, rather than Thomas, who scored 87.66, or Davison, who scored 84. When asked why he promoted Cornell rather than Davison, the chief replied that he followed the recommendation of the interview panel. (R. Doc. 21, Exh. A, at 56-57). He gave the same reason for selecting Thomas and Bryn. (Id. at 67, 76). It is undisputed that on each of the three occasions, the fire chief promoted a candidate whom the interview panel ranked higher than Davison. There is no showing that the members of the interview panel harbored retaliatory animus toward Davi-son.

Davison and the majority make much of the fact that while Forte said that he selected the person recommended by the interview panel “100 percent of the time,” (id. at 57, Exh. B, at 325), he actually deviated from the panel’s recommendation twice — -that is, in 275 promotion decisions, Forte promoted the top-scoring candidate only 99.3 percent of the time. On two occasions during his six-year tenure, Forte promoted the second-ranked candidate. This minor discrepancy does not create a trial-worthy case of discrimination, because the showing of pretext is weak, and the two aberrational cases do nothing to bolster Davison’s claim that she was a victim of discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). It is undisputed that Davison never was the candidate ranked highest by the unbiased interview panel. Forte did not, therefore, select a second-ranked candidate over Davison while she was ranked first. When the chief selected Cornell for the first position, he passed over the first-ranked Thomas. Davison was ranked number three.

*667Nor does the evidence support an inference that Forte’s selection of the first-ranked candidate over Davison for the second and third positions was motivated by discriminatory intent. In the two instances over six years when Forte did select a second-ranked candidate, the difference in scores between the first two candidates was de minimis. Jennifer Cornell scored a mere 0.66 points lower than Tim Thomas when Cornell was selected. Jeffrey We-stall scored one point lower than a first-ranked candidate when Forte promoted Westall in 1999. In addition, Westall — the top-certified candidate by the human resources department — failed in his application for twenty-two promotions before Forte finally selected him as the second-ranked candidate for the twenty-third position. Davison, by contrast, scored 3.66 points below Thomas when Thomas was selected, and 20 points below Bryn when Bryn was selected. She was unsuccessful only three times in the promotion process. Given these widely disparate circumstances, there is no reasonable inference that Forte’s failure to deviate from the interview panel’s recommendation — for what would have been only the third time in at least 275 decisions — to select a second-ranked Davison over a first-ranked Thomas or Bryn was motivated by an intent to retaliate.

To survive a motion for summary judgment, a plaintiff must show more than a “colorable” claim of discrimination. She must produce evidence that is “significantly probative” of discriminatory intent. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The evidence in this case does not meet that threshold. It surely does not constitute strong, “direct evidence” of discrimination that warrants treating this as a “mixed motive” case in which the burden of proof shifts to the fire chief. To the contrary, there is every reason on this record to believe that Jennifer Cornell, Tim Thomas, and Denise Bryn earned and deserved the promotions that they received. I would therefore affirm the judgment of the district court.

. See, e.g., Johnson v. Ark. State Hospital, No. 4:05CV00794, 2007 WL 707341, at *2 (E.D.Ark. Mar.5, 2007); Green v. City of St. Louis, No. 4:05CV198, 2006 WL 1663439 (E.D. Mo. June 15, 2006); Glandon v. Keokuk County Health Ctr., 408 F.Supp.2d 759, 767 (S.D.Iowa 2005); Sale v. Mask, No. 4:04CV00219GH, 2005 WL 1771184, at *5 (E.D.Ark. July 15, 2005); Cookv. City of Elkader, No. C03-1029, 2005 WL 151937, at *16 (N.D.Iowa Jan.21, 2005); Shepard v. Wapello County, 250 F. Supp.2d 1112, 1118 (S.D.Iowa 2003); Koehn v. Indian Hills Comty. Coll., No. Civ. 4-02-10273, 2003 WL 21976025, at *3 (S.D.Iowa Aug.5, 2003); Vukelic v. Bartz, 245 F.Supp.2d 1068, 1077 (D.N.D.2003).

. The court in Altonen v. City of Minneapolis, 487 F.3d 554 (8th Cir.2007), concluded that the plaintiff failed to establish a prima facie case, and thus did not ultimately shift the burden of proof to the employer based on something less than “direct evidence” of discrimination. If it had done so, then the opinion would have conflicted with Graning, 172 F.3d at 615 n. 3, which was authored by the same judge. Calvit v. Minneapolis Public Schools, 122 F.3d 1112 (8th Cir.1997), also authored by the same judge, apparently based its reversal of a grant of summary judgment on direct evidence of retaliation. Id. at 1118 (“There is evidence that the school district denied him a fair opportunity to be reappointed to Four Winds because of his speech. The school district sent him a letter stating that he would not be reassigned to Four Winds in order to ‘forestall any complaint of Whistle Blowing.’ ”) (emphasis added). The panel in Stever v. Independent School District No. 625, 943 F.2d 845 (8th Cir.1991), applied a “pretext” analysis (consistent with McDonnell Douglas) to conclude that the plaintiff presented a submissible case. Id. at 853 (holding that evidence raised "a disputed issue of fact regarding whether the District used Stever's purported nursing expertise as a pretext for transferring her in retaliation for her outspokenness on matters of public concern.”) (emphasis added). There is no indication that the district courts of this circuit have interpreted Calvit or Stever to preclude a McDonnell Douglas analysis at the summary judgment stage in First Amendment retaliation cases when the plaintiff relies on indirect evidence to prove that protected speech was a motivating factor.

. That a plaintiff survives a motion for summary judgment through the indirect McDonnell Douglas method of proof, by showing a genuine issue of fact as to whether the employer’s explanation was pretext for retaliatory motive, does not mean that Mt. Healthy is irrelevant to the determination of liability at trial. If the jury ultimately rejects the employer’s legitimate non-retaliatory explanation, and concludes that the employer was actually motivated by both permissible and impermissible considerations, then the jury may find for the employer if he proves that he would have made the same decision even without taking the plaintiff's speech into account. See Gooden v. Neal, 17 F.3d 925, 929 (7th Cir.1994) ("When ... the plaintiff says that the adverse decision was based on speech, and the defendant says it was based on something else, the jury should be told what to do if it concludes that the employer had both motives. Mt. Healthy gives the jury that essential information.”).