United States Court of Appeals
For the Eighth Circuit
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No. 16-2845
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David Harrell
lllllllllllllllllllll Plaintiff - Appellant
v.
Gerald Robinson, in his Individual and Official Capacity as the Sheriff of
Jefferson County, Arkansas; Lafayette Woods, in his Individual and Official
Capacity as a duly appointed Deupty Sheriff of Jefferson County, Arkansas;
Stanley James, in his Individual and Official Capacity as a duly appointed Deupty
Sheriff of Jefferson County, Arkansas
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Arkansas - Pine Bluff
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Submitted: June 6, 2017
Filed: August 21, 2017
[Unpublished]
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Before LOKEN, MURPHY, and MELLOY, Circuit Judges.
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PER CURIAM.
Plaintiff David Harrell was terminated by the Jefferson County Sheriff's Office
(JCSO) in 2009. Harrell alleges that he was terminated in retaliation for his
complaint that JCSO employees had discriminated against him on the basis of race.
He further alleges that JCSO employees later retaliated against him by providing
negative references to other prospective employers. The district court1 dismissed
Harrell's retaliation claims at summary judgment. Harrell appeals, and we affirm.
I.
David Harrell was hired as a detention deputy by the JCSO on March 15, 2007.
He was promoted to full time patrol deputy on June 1, 2007. In the span of one
month between December 23, 2008 and January 24, 2009, Harrell was involved in
three separate auto accidents while on duty. The JCSO determined that the first two
accidents were not Harrell's fault. Although he claims that he was not at fault in the
third accident, it resulted in his being suspended without pay for thirty days and
moved to the JCSO's warrant division.
Harrell, who is Caucasian, stated in an affidavit that at some point before
October 2009 he told JCSO Sergeant Randy Dolphin and Lieutenant Thaddeus
Handley that he believed the investigation into his third auto accident was one sided
and racially discriminatory. The affidavit further states that Dolphin and Handley
told Harrell "to leave it alone" and that as long as he "stayed good, a complaint about
discrimination would not go in" his file. Harrell interpreted these statements to be a
threat.
On October 6, 2009, Harrell received a call from a friend who said that she had
driven into a ditch close to Harrell's home and needed help. Harrell was off duty but
1
The Honorable D.P. Marshall Jr., United States District Judge for the Eastern
District of Arkansas.
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went to help the friend. Corporal Mark Harper also responded to the site, and he later
alleged that he had been able to smell intoxicants on Harrell's breath. It appeared to
him that Harrell was attempting to help his intoxicated friend evade the law, which
Harrell denies. The JCSO began an internal investigation with Sergeant Lafayette
Woods in charge. During the course of the investigation, Sergeant Woods discovered
that Harrell had worked as an off duty security officer at Bad Bob's Night Club on
October 3, 2009 while wearing his battle dress uniform without prior authorization.
This was a violation of JCSO policy.
The JSCO scheduled a polygraph for Harrell as part of its investigation. On
the day of the scheduled exam, Harrell's pregnant fiancée was admitted to a hospital
after losing a significant amount of blood. Harrell subsequently learned that her baby
needed to be delivered that day and that her life and that of the baby were at risk.
Harrell appeared for the polygraph appointment and was told that it would take
several hours and that the results would likely be invalid because of his stress and
lack of sleep. Harrell contacted Woods to explain the situation and his concerns.
Woods told him to make the right choice and take the polygraph, but Harrell
responded that he was willing to take the exam another time. Harrell then returned
to the hospital.
On the same day, Woods concluded his investigation of Harrell which found
him to have been uncooperative and deceptive and to have violated a number of
JCSO policies. Woods recommended that Sheriff Gerald Robinson discharge Harrell,
attempt to decertify him as a police officer, and place a letter in his personnel file to
prevent his rehiring. Robinson agreed with Woods' recommendation, and Harrell was
fired on November 3, 2009. Robinson then sought to have Harrell decertified by the
Arkansas Commission on Law Enforcement Standards and Training, a standard
process. In Harrell's case, however, the Commission ultimately voted not to decertify
him. On February 2, 2010, Harrell filed an EEOC charge claiming that he had been
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disciplined and discharged by the JCSO because of his race "and in retaliation for
opposing unlawful disciplinary actions in the past in violation of Title VII."
After Harrell was fired, he found it difficult to obtain employment in the law
enforcement field. He first applied to the Pine Bluff Police Department. JCSO Chief
Deputy Stanley James subsequently wrote to the chief of the Pine Bluff Police
Department on January 11, 2010. James reported in the letter about Harrell's
termination and the JCSO's request that he be decertified. Harrell did not receive an
offer of employment from Pine Bluff at that time, but that department did hire him
years later.
Harrell also applied to the Hot Springs Police Department which notified him
on November 22, 2011 that he had been ranked number one among twenty three
applicants. Some time after that, a Hot Springs employee did a background check on
him which included contact with the JCSO. Harrell had given broad written
permission for his previous employers to disclose his past employment records,
including "personnel information however personal or confidential it may appear to
be." The Hot Springs request also asked for "any information contained in
investigatory files, . . . complaints or grievances . . . and any internal affairs
investigations and discipline, including any files which are deemed to be confidential,
and/or sealed." In response to the Hot Springs request, the JCSO submitted
documents from Harrell's employment file. These included Harrell's EEOC complaint
against the JCSO and a transcript from the preliminary decertification hearing where
Sergeant Woods and Sheriff Robinson had described misconduct by Harrell. The
record does not indicate whether the JCSO possessed or disclosed any additional
documents, but the Hot Springs Police Department notified Harrell on March 1, 2012
that he had not received the position he sought.
Harrell sued JCSO employees Robinson, Woods, and James in the Western
District of Arkansas, alleging they had unlawfully discriminated against him on the
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basis of race and military service, retaliated against him for reporting such
discrimination, and violated the Family and Medical Leave Act (FMLA). He also
sued the City of Hot Springs for failing to hire him. All defendants moved for
summary judgment. The district court granted the motion of Hot Springs and
transferred the case to the Eastern District of Arkansas.
After the case was transferred, the JCSO defendants renewed their summary
judgment motion. The court granted their motion on all of Harrell's claims except his
claims under the FMLA and for racial discrimination. Harrell later voluntarily
dismissed his racial discrimination claims, and a trial was held on his FMLA claim.
The jury found in favor of the defendants. Harrell now appeals the district court's
summary judgment order, arguing that the court had erred by dismissing his
retaliation claims.
II.
We review de novo the grant of summary judgment and view the facts in the
light most favorable to the nonmoving party, making every reasonable inference in
its favor. Bradford v. Palmer, 855 F.3d 890, 892 (8th Cir. 2017). Summary judgment
is appropriate "if the record shows there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law." Id. (quoting McPherson v.
O'Reilly Auto., Inc., 491 F.3d 726, 730 (8th Cir. 2007)).
Harrell's retaliatory discrimination claims under 18 U.S.C. § 1983, Title VII,
and the Arkansas Civil Rights Act are all evaluated under the same standard. See
DePriest v. Milligan, 823 F.3d 1179, 1185 (8th Cir. 2016). To prevail on these
claims, Harrell "must prove (1) [he] engaged in protected activity; (2) [he] suffered
a materially adverse employment action; and (3) the materially adverse action was
causally connected to [his] protected activity." Wright v. St. Vincent Health Sys., 730
F.3d 732, 737 (8th Cir. 2013). If a plaintiff does not have direct evidence of
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retaliation, "the McDonnell Douglas framework applies, which requires a plaintiff to
make a prima facie case of discrimination or retaliation." Shirrell v. St. Francis Med.
Ctr., 793 F.3d 881, 887 (8th Cir. 2015). If the "plaintiff satisfies this burden, the
defendant then has the burden of showing a legitimate, non-discriminatory reason for
the challenged action." Id. Once "the defendant offers such a reason, the burden
shifts back to the plaintiff to show the defendant's proffered reason is a pretext." Id.
To establish causation, Harrell "must prove the desire to retaliate was the but
for cause of [his] termination—that is, that the unlawful retaliation would not have
occurred in the absence of the alleged wrongful action or actions of" defendants.
Wright, 730 F.3d at 737 (internal quotation marks omitted). It is however not
sufficient to establish only "that retaliation was a substantial or motivating factor in
the employer's decision," for it must be shown to have been dispositive. Blomker v.
Jewell, 831 F.3d 1051, 1059 (8th Cir. 2016) (quoting Vega v. Hempstead Union Free
Sch. Dist., 801 F.3d 72, 90–91 (2d Cir. 2015)). While "it is not dispositive, 'the
length of time between protected activity and adverse action is important' in the
causation calculus." Bennett v. Riceland Foods, Inc., 721 F.3d 546, 551 (8th Cir.
2013) (quoting Smith v. Allen Health Sys., Inc., 302 F.3d 827, 833 (8th Cir. 2002)).
A.
Harrell first argues that the district court erred by granting defendants summary
judgment on his claim that they retaliated against him for having made a complaint
about racial discrimination, by terminating him and seeking to have him decertified
as a law enforcement officer. Defendants do not dispute that Harrell met the first two
elements of his prima facie retaliatory termination claim. First, he alleges that he
engaged in protected conduct by complaining to Sergeant Dolphin and Lieutenant
Handley that the investigation into his third auto accident was one sided and racially
discriminatory. Second, he alleges that he suffered an adverse employment action
when he was terminated on November 3, 2009.
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Even assuming that Harrell has satisfied the first two elements, we conclude
that he has failed as a matter of law to establish causal connection for he has not
created a genuine issue of fact as to whether his protected conduct was the but for
cause of his termination and attempted decertification. Harrell did not produce
evidence that either Dolphin or Handley passed on his racial discrimination complaint
to the named defendants or that any such information played a role in his own
termination or attempted decertification. Moreover, the JCSO stated that it
terminated him due to his lack of cooperation during an internal affairs investigation
and his several violations of department policy. Such evidence made it less likely that
Harrell's comments to Dolphin and Handley caused his discharge and attempted
decertification. See Blomker, 831 F.3d at 1059–60. Because Harrell has failed to
create a genuine issue of material fact as to causation, we affirm the grant of summary
judgment on the retaliation claims arising from his termination and the effort to
decertify him as a law enforcement officer.
B.
Harrell also argues that the district court erred by granting defendants summary
judgment on his claim that they retaliated against him by providing a negative
reference to Hot Springs after he applied for a job.2 He first alleges that he engaged
in a protected activity when he complained about purported racial discrimination.
Defendants do not contest that this was a protected activity. Harrell also alleges that
he suffered a materially adverse employment action by transmission of documents
from his employment file to Hot Springs. Included among them were his EEOC
charge and a transcript of his preliminary decertification hearing.
2
Harrell does not argue that the district court erred in granting defendants
summary judgment on his claim of retaliatory reference with respect to his application
to the Pine Bluff Police Department. He has therefore waived such an argument. See
Hernandez v. Holder, 760 F.3d 855, 863 (8th Cir. 2014).
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Even assuming that Harrell met the first two elements of his prima facie claim,
he has not created a genuine issue of material fact on the element of causation. As
the district court correctly pointed out, Harrell did not produce any evidence to show
why the EEOC charge or preliminary decertification transcript had been placed in his
employment file or provided to Hot Springs. For example, he has not provided
evidence about the JCSO's standard procedures regarding record retention,
maintenance of employment files, or references. Without evidence that the JCSO
departed from its typical practices or disclosed only documents making Harrell appear
an unattractive applicant, Harrell has not made a prima facie showing of retaliatory
intent. He has therefore failed to create a genuine issue of material fact on causation
as to his retaliatory reference claim, and the district court properly granted summary
judgment in favor of defendants.
III.
For these reasons we affirm the district court.
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