Dan Charleston, Plaintiff - Appellant v. Bill McCarthy, in his individual and official capacity as Polk County Sheriff, Defendant - Appellee, Helen Youngs, in her individual capacity; Florence Buhr, in her individual capacity; Bill Hansen, in her individual capacity; Victor J. Munoz, in her individual capacity, Defendants
No. 18-1965
United States Court of Appeals For the Eighth Circuit
Submitted: January 17, 2019 Filed: June 13, 2019
Before GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.
I.
Dan Charleston joined the Polk County Sheriff‘s Officе in 1997 and served as a sergeant in that office at all times relevant to this action. In 2008, Bill McCarthy was elected as Polk County Sheriff. He sought reelection in 2012, again running as a Democrat. In 2010, Charleston announced his intentions to challenge McCarthy, running as a Republican candidate for sheriff.
The campaign between McCarthy and Charleston was contentious, with each candidate criticizing the other. Several issuеs regarding Charleston‘s performance arose. During the campaign, a sheriff‘s department employee disclosed to a reporter that Charleston had been previously terminated from the Pomona, California Police Department after the department discovered that Charleston had lied in an official police report. Additionally, in February 2012 Charleston served a two-day suspension frоm the Polk County Sheriff‘s Department related to failure to render medical aid to a person with a medical emergency. This suspension stemmed from an incident where Charleston arrived on the scene of an emergency call before paramedics and observed an unconscious man bleeding from the nose; neither
During an October 2012 campaign debate, McCarthy spoke about Charleston‘s campaign website referencing a group called the Oath Keepers. McCarthy described the group‘s views as “about as radical as it gets” and “the kind of garbage you‘re going to get if [Charleston] is elected.” During this same debate, Charleston expressed his view that he had been intentionally left off of a promotion list and that McCarthy refused to promote Charleston due to his political beliefs. McCarthy responded that “sometimes when people don‘t get promoted, there‘s a reason behind that too,” but did not mention Charleston‘s political beliefs.
Sheriff McCarthy was reelected. On Decembеr 6, 2012, McCarthy held a “clear the air” meeting with Charleston. Both men discussed issues that had arisen during the campaign, including Charleston‘s suspension and his termination from the Pomona Police Department. Prior to the campaign, McCarthy had been unaware of Charleston‘s termination and expressed his concerns, including whether he had an obligation to disclose to criminal defendants Charleston‘s previous dishonesty. McCarthy also made several statements about Charleston‘s continued role in the Polk County Sheriff‘s Department:
You‘re not going to be a shadow sheriff and be here and survive in this office. You‘re not going to be the spokesperson for the rank and file, and you‘re not going to talk against policies in this administration and get by with it. I‘m going to hold you accountable to the general orders, and you‘re going to have some difficult rоad ahead if you can‘t fall in and just act as a sergeant and support the administration.
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You‘re going to be talked to by internal affairs shortly about some of the things that you‘ve done to undermine here since the election so you need to cooperate with that, and you need to understand you‘re going to be held accountable to the standard that‘s outlined in the rules and regulations. You‘re not the shadоw sheriff, and I say that again, and you‘re not going to be viewed that way.
McCarthy also expressed his view that Charleston had been “a cancer [in the department] for 18 months.” Charleston challenged McCarthy as to whether McCarthy‘s true intention was to push Charleston out of law enforcement; McCarthy responded that while he believed Charleston‘s dishonesty in a police report should preclude him from serving in law еnforcement and that Charleston should resign, he intended to allow Charleston to remain with the department, stating Charleston had “a place here [in the department] if [he would] just accept the position [he had] and make the best out of that.”
In January 2013, the Department OPS began an investigation into whether, in November 2012, Charleston had acted improperly by directly contacting three other department employees and discussing union practices and officer transfers. After OPS determined that Charleston‘s conduct violated the Iowa Code provision governing collective bargaining and the rights of public employees and that Charleston had interfered with employees and had been untruthful during the course of the investigation, three of Charleston‘s supervisors recommended to McCarthy appropriate discipline. The discipline ranged from counseling Charleston regarding
I don‘t want to be unfair with you either and I want to give you an opportunity to have this job and flourish, you‘ve got the job, it‘s your job, it‘s not my job, but you‘re not going to maintain that job if you can‘t act supportive [in] particularly in the role that you‘ve got as a supervisor. You‘re not going to be the representative of the rank and file, you‘re not going to run your own Sheriff‘s Department and you‘re not going to constantly try to undermine, for whatever purposes that you have in mind or have had in mind, to try to undermine the direction of this administration and be successful.
Following this meeting, McCarthy issued a letter of reprimand to Charleston. The letter of reprimand stated that Charleston violated the Sheriff‘s Office General Orders concerning harmony in the office. The reprimand noted that, during the OPS investigation, Charleston stated repeatedly that he could not remember or recall key details and conversations and claimed to be able to remember only comments or statements that reflected positively on Charleston. The reprimand stated that Charleston had been less than credible, that his answers were evasive, and that he did not cooperate with the OPS investigation. The reprimand constituted formal discipline and was placed in his personnel file, but did not have any impact on Charleston‘s salary.
Charleston filed this action in April 2014, pursuant to
II.
Charleston asserts that the district court erred in granting summary judgment in favor of McCarthy on both Charleston‘s First Amendment discrimination and retaliation claims. “We review de novo a grant of summary judgment, considering the facts in the light most favorable to the nonmoving party. Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law.” Meuir v. Greene Cnty. Jail Emps., 487 F.3d 1115, 1118 (8th Cir. 2007).
With respect to his First Amendment discrimination claim, Charleston asserts that he presented a prima facie case by showing he ran for sheriff as a Republican, that he suffered adverse employment actions in the form of the reprimand and the transfer, and that McCarthy made statements providing “direct evidence of political discrimination.” As to his First Amendment retaliation claim, Charleston asserts that he had sufficiently shown that he was reprimanded, suspended, transferred, and left off of a promotion list, all due to his decision to challenge McCarthy as a Republican candidate for sheriff. McCarthy also asserts that the district court applied the incorrect burden-shifting framework in evaluating his retaliation claim.
The First Amendment prohibits government officials from discriminating against public employees based on political affiliation, where political affiliation is not an appropriate job requirement. Rutan v. Republican Party of Ill., 497 U.S. 62, 64, 75 (1990). A nonpolicymaking employee who alleges First Amendment discrimination must make a prima facie showing thаt: (1) he has a specific political or ideological affiliation; (2) he suffered an adverse employment action; and (3) the political or ideological affiliation was a substantial or motivating factor for the
Both of Charleston‘s claims suffer from the same fatal flaw: the lack of an adverse employment action. “An adverse employment action is a tangible change in working conditions that produces a material employment disadvantage. This might include termination, cuts in pay or benefits, and changes that affect an employee‘s future career prospects.” Wagner v. Campbell, 779 F.3d 761, 766 (8th Cir. 2015) (quoting Clegg v. Ark. Dep‘t of Corr., 496 F.3d 922, 926 (8th Cir. 2007)). But “minor changes in working conditions and no reduction in pay or benefits will not constitute an adverse employment action.” Spears v. Mo. Dep‘t of Corr. & Human Res., 210 F.3d 850, 853 (8th Cir. 2000). Further, “[l]esser actions than demotion, suspension, and termination can be adverse employment actions if their cumulative effect causes an employee tо suffer ‘serious employment consequences’ that adversely affect or undermine his position.” Shockency v. Ramsey County, 493 F.3d 941, 948 (8th Cir. 2007).
Charleston identifies several actions that he asserts are adverse employment actions, either independently or cumulatively: his 2012 suspension and McCarthy‘s refusal to rescind it; his 2013 reprimand; his transfer from the Patrol Division to the Transport Division, and his being left off of the promotion list. Although Charleston is not explicit in which actions he considers independent adverse actions and which he argues cumulatively constitute an adverse action, none of the complained-of actions, either together or separately, constitute an adverse employment action.
As to Charleston‘s 2013 reprimand, a reprimand constitutes an adverse employment action “only when the employer uses it as a basis for changing the terms or conditions of the employee‘s job for the worse.” Campbell, 779 F.3d at 767. The record is devoid of any evidence that the 2013 reprimand in any way changed the terms or conditions of Charleston‘s employment. It did not involve any reduction in pay or otherwise adversely affect his employment; it was merely documented in his personnel file. This is insufficient to demonstrate that the reprimand was an adverse action. See Elnashar v. Speedway SuperAmerica, LLC, 484 F.3d 1046, 1058 (8th Cir. 2007) (“The reprimand did not affect [plaintiff‘s] terms and conditions of employment, so he cannot make out a prima facie case on this claim.“). To the extent that Charleston argues that the reprimand adversely affected his employment conditions by resulting in the transfer, as we conclude that the transfer did not
A transfer may constitute an adverse employment action where it materially alters the terms or conditions of employment, like an employee‘s title, pay, or benefits. Ledergerber v. Stangler, 122 F.3d 1142, 1144-45 (8th Cir. 1997). But a transfer may impose some changes in employment circumstances without amounting to an adverse employment action; “a purely lateral transfer, that is, a transfer thаt does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action.” Id. 1144 (internal quotation marks omitted). Despite Charleston‘s assertions, the record does not reflect that his transfer from Patrol to the Transport Division materially altered his employment conditions. The transfer did not reduce Charleston‘s pay; he remained in a supervisory pоsition even though his number of direct supervisees decreased; he remained in the position for two-and-a-half months before being transferred to another department that gave him more supervisees; he was still eligible to work overtime and to use a patrol car when needed; he was routinely transferred between divisions at least eight times during his employment with the department; and Charleston admitted that the Trаnsport Division performed essential functions of the sheriff‘s department. Based on this record, the transfer does not qualify as an adverse employment action because it did not adversely affect Charleston‘s employment conditions.
Finally, we see no merit to Charleston‘s contention that being left off of the promotion list due to the suspension and reprimand was an adverse employment action. Charleston offers no evidence as to how the promotion list is compiled or the significance of the list. The record contains no evidence as to factors that went into inclusion on the list or how the list operated, and there is no evidence that a suspension or reprimand would bar a sergeant from appearing on the promotion list. Charleston‘s theory, as the district court noted, is devoid of evidentiary support. Although “failure to promote can constitute an adverse employment action that would
None of these complained-of actions constitutes an adverse employment action on its own; cumulatively, these actions also did not result in “serious employment consequences” that adversely affected or undermined Charleston‘s position. See Shockency, 493 F.3d at 948. Despite Charleston‘s complaints, he remained a sheriff‘s department employee with the same title, pay, and benefits throughout the relevant time frame. Although his job duties did change during this time, we find this to be less than noteworthy given that he has transferred no less than 8 times during the duration of his employment with the sheriff‘s department and 6 times prior to the 2012 election campaign.
Charleston has failed to demonstrate that he suffered an adverse employment action. We thus conclude that Charleston failed to present a prima facie showing and affirm the district court‘s grant of summary judgment to McCarthy on both Charleston‘s discrimination and retaliation claims.3 See Duffy v. McPhillips, 276 F.3d 988, 991-92 (8th Cir. 2002) (affirming summary judgment where plaintiff failed to show alleged adverse action to sustain retaliation claim); see also Maymí v. P.R. Ports Auth., 515 F.3d 20, 28-29 (1st Cir. 2008) (affirming summary judgment where
III.
For the foregoing reasons, we affirm.
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