*1 imposed on a defendant who is ment is HUGHES, subject undischarged Appellant, an term of David
already Plaintiff — imprisonment, may the terms run concur- ” rently consecutively .... also or See 5G1.3(c) (“In any § other case U.S.S.G. Roger STOTTLEMYRE, Colonel, D. undischarged impris- an term of
involving capacity; his official James P. onment, of- the sentence for the instant as an individual and in his official ca may imposed concurrently, to run fense be pacity; Eric as individual partially concurrently, consecutively or capacity; official Vincent prior undischarged imprison- term of ppellees. Def endants— A punishment ment to achieve a reasonable offense.”). for the instant No. 05-2774. alleges Foote that his sentence exceeds Appeals, United States Court of statutory maximum because the dis- Eighth Circuit. trict court elected to run the federal sen- concurrent all
tence with but 18 months of Submitted: Jan. 2006. burglary. argu- his state sentence for This July Filed: 2006. subject ment fails. to an Foote undis- charged imprisonment term of when
was sentenced the district court. Con-
sequently, the district court could order consecutively, run concur- sentences to
rently, partially concurrently. The fact
that the district court elected to run the part
sentences concurrent does not
change the fact that Foote was sentenced than imprisonment
to more 240 months’
for the instant offense.
Because Foote’s sentence is within the
statutory range, appeal con- waiver plea agreement
tained his is enforce- Schulte,
able. See
sequently, appeal. we dismiss his
III. Conclusion hold that Maurstad’s sentence is
We
reasonable because the Guidelines failed to
adequately extraordinary account for his history, supporting
criminal the extraordi-
nary upward imposed by variance the dis-
trict court. further hold that Foote We sentence, right appeal his
waived appeal.
and we dismiss his *2 Roger
Colonel D. trooper and transferred to Gaming the Patrol’s Division. brought a U.S.C. action, § 1983 naming his immediate su- *3 pervisors, Captain Vincent Ellis Lieutenant James as well as Eric investigator in the Patrol’s Professional Standards Division. Ellis, Ripley claims and Wilhoit violated his First speech rights Amendment free by retaliating against him for opposing proposed in changes policy. Patrol named in his official capacity as Patrol Superintendent but does not contend personally retaliated against him.
The district court Hughes’s dismissed claims finding present any he failed to tending legitimate evidence to discredit the non-retaliatory reasons offered for his de- motion and transfer. appeal, Hughes On contends the district court applied the wrong evaluating test his retaliation claim, granted summary judgment a basis not asserted defendants. We affirm in part, part, reverse and re- mand.
I facts, light viewed most fa to Hughes, Appleton vorable Dush v. Elec. (8th Cir.1997) Co., 962-63 Wolf, Louis, P. argued, Feme St. Mis- standard), (summary judgment fol are as (D. Sowers), souri Eric on the brief. In lows. was a Zone Ser geant assigned County, to Bates Missouri. Bruce, Theodore Allan Assistant Attor- supervisor Rip His direct was Lieutenant General, ney City, Jefferson Missouri ley served in a supervisory who role (Jeremiah Nixon, brief), (Jay) on the W. County County, Bates and Cass Missouri. appellee. County County
Bates and Cass are located BYE, HEANEY, Before Troop within the boundaries of the Patrol’s COLLOTON, Judges. Circuit A, by Captain which was commanded Ellis. 2003, told Patrol June was
BYE, Judge. Circuit considering consolidating Bates and sergeant David was a with the Cass counties. attended a meet (Patrol) Highway ing Missouri State Patrol with Ellis and to discuss the until May by proposed expressed when he was demoted consolidation and dis- Hughes’s per- adopted, plan dation support position, To his agreement. “Meets in- evaluation indicated he statistics and other formance Hughes gathered change “Excels,” to show the carried ad- tending but Expectations” formation response time and trooper increase negative would comments directed ditional an al- safety. As adversely impact public Among oth- of conduct. specific instances ternative, trooper one Hughes suggested comments, “If the evaluation stated: er County reassigned to Cass from Bates be sug- not heed the Sergeant Hughes does County personnel problems. its to relieve troop staff gestions given he has been consolidation, and Ripley favored Ellis and give serious consideration will have with Ripley voiced dissatisfaction to function in a ability to be able *4 meeting, the plan. Following alternative appealed the supervisory Hughes role.” delay consolidation and tem- Ellis chose to rejected to who the 2003 evaluation adopted Hughes’s suggestion.1 porarily job improve him to his appeal and advised meeting, Ripley visibly was Following the performance. point, at this angry Hughes, at and Next, policy a institut- Hughes contends Ripley Ellis and be- according Hughes, by Ripley to have subordinates evaluate ed gan campaign a of retaliation. sergeants retaliatory was because their following in the months Hughes alleges negative comments di- Ripley discounted repeatedly summoned meeting, Ripley relying sergeants, at other while on rected forty- Ripley’s approximately him office him. those directed at away. meeting, Prior to the five miles Ripley’s called to office Hughes had been disciplinary four Hughes also contends Additionally, on one occasion. within brought initiated 2004 were complaints meeting Hughes a month of the received for his criticism of the consol- retaliation reprimands. arriving One for two verbal inci- plan. The first involved an idation early using and a second for at work too 13, 2003, troop- December when a dent on dying father sick leave while his was Hughes’s supervision shot across er under time, Hughes During cancer. this same kill highway coyote a Missouri him him. alleges Ripley told he disliked it. private land to retrieve trespassed alleges Ripley further and Ellis Hughes complaint, by Corporal initiated Kevin The by giving performance him a retaliated Hughes’s supervi- Fisher who was under than decidedly negative more evaluation sion, alleged Hughes report told him to preceding those he had received Ripley incident to but not to volunteer 2001, years. performance In his was two Additionally, complaint al- details. Expectations” and ranked between “Meets Hughes trooper advised the not to leged in all and the com- categories, “Excels” investigators having without talk with positive primarily ments section contained lawyer present. 2002, In was performance comments. complaint, alleged Hughes The second Expecta- again ranked between “Meets transport on-duty trooper ordered an “Excels,” sec- tions” and but comments on various his children to and from school comments, in- negative tion carried some 2001 and 2003. The occasions between Hughes has cluding: “Sergeant become alleged Hughes further had complaint the notion that he is almost consumed with car to patrol from time to time used his to another division going to be transferred to and from school. transport In the consoli- his children patrol.” after Hughes's objections. plan adopted over October the consolidation 1. In theless, trooper Ripley leveled at the contends complaint No and Ellis Hughes’s children. transported who an opportunity used the as him, against retaliate and enlisted the aid complaint, alleged Hughes, third plan. to further their Caskey, Harold the behest of state senator troopers ordered one of his to retrieve retaliation, As further evidence of plates private being license from a vehicle Hughes alleges September Ripley lot. The impound held at owner solicited one of subordinates for paid towing lot had not been for the or negative information Hughes, about storage charges complained told if any way there was to reas- Hughes. by the investi- When interviewed sign him In he would. March gator, the owner stated was rude Hughes alleges Ripley approached another and told him not to “mess with Senator patrol accepting pro- member about Caskey.”2 County replacing motion to Bates
Finally, complaint the fourth involved an Sergeant. April as Zone 22, 2004, incident on March when removed from the state fair entered Fisher’s residence to retrieve the detail; a position Hughes had held for *5 keys patrol Hughes’s to Fisher’s vehicle. years. twelve in a patrol damaged vehicle had been colli- Finally, Hughes alleges he was retaliat- sion with a deer en route to a serious 1) against posi- ed when he was refused a traffic accident and he needed a substitute. 2) officer, tion as a narcotics required to duty patrol Fisher was off and his vehicle Wednesdays Sundays, work more and and parked was at his home a few miles 3) compensatory docked 3.5 hours time for home, away. Hughes drove to Fisher’s attending training a session out of uniform. and, when he discovered Fisher was there, 2004, entered the locked using home the Hughes On March filed this keypad access code and located the vehicle against Stottlemyre, Ripley action and keys. giving Hughes Fisher admitted the Wilhoit, alleging these actions constituted previous access code to his home on a employment adverse actions taken in re- occasion but indicated he had not other- sponse to the opposition to his consolida- given Hughes permission wise to enter his May Stottlemyre plan. early tion home. which meeting, convened a staff included a Colonel, majors, Lieutenant five
Each of these initiated complaints was Ellis and to determine whether provided by based on information Fisher disciplinary action should taken in re- be signed by but was either or Ellis complaints. sponse to the Wilhoit permit because Patrol rules do not a sub- not asked to make a recom- Ripley were sign complaint involving ordinate to a a all discipline. mendation as to Ellis and superior. alleged Each of the instances remaining attend- but one of officers in investigated misconduct was Wilhoit ance recommended termination. Stottle- investigator his role as with the Profes- myre initially agreed, but reconsidered sional Division of the Patrol. Standards instance, chose to demote and transfer him In each interviewed complained Gaming who admitted much of the factual to the Division. Ellis underlying complaint. should be ter- basis each Never- filed, Hughes Caskey attorney repre- complaint 2. third was was or- Senator is an Caskey. sented in connection with the first dered to have no further contact with complaints against two him. After the filed 796 by the First protected in conduct gaged from prohibited and insisted he be
minated 11, 2004, conduct protected Amendment and the May A. returning Troop On motivating factor adding was a substantial complaint an amended Hughes filed adverse defendant, employer’s decision to take the alleging the four a Ellis as Healthy City Mt. employment action. caused his demotion and complaints which 274, 287, 97 Doyle, v. 429 U.S. for his exercise Sch. Dist. punishment transfer were (1977); 50 L.Ed.2d Okruhlik S.Ct. protected speech. (8th Ark., Univ. of summary moved for The defendants Cir.2005) (noting applies the same test Hughes failed to make judgment arguing and Title retal both First Amendment VII As to prima facie case of retaliation. out cases). If makes a employee iation Hughes alleges which the four prima showing, facie the burden successful transfer, demotion and the dis- led employer to the to demonstrate shifts trict court assumed had made taken same action would have been even showing against of retaliation prima facie protected conduct. Mt. the absence court con- Ripley and Wilhoit. The 568. Healthy, 429 U.S. S.Ct. cluded, however, Hughes failed to show applied. This is the test the district court non-retaliatory reason legitimate that the reject claim the Accordingly, Hughes’s by Stottlemyre for his demotion and given wrong standard. applied district court transfer, i.e., complaints, pretextu- alleged other adverse em- al. As to the Activity 1. Protected actions, the district court con- ployment prima cluded failed to make The district court concluded Hughes argues showing. opposition plan facie On to the consolidation *6 1) wrong activity expressed applied protected the district court the test because he safety. made a determining impact public whether he had concerns over the 2) retaliation, prima showing appeal, facie of On defendants do not contest the Thus, assume, reaching pretext holding. erred in the issue of be- we district court’s only argued deciding, op- cause the defendants he failed without stated prima showing. position plan pro- in his facie to the consolidation
tected under the First Amendment. II Employment 2. Adverse Action grant the district court’s of
We review summary judgment Spears de novo. employ To constitute an adverse Res., Human 210 Dep’t Mo. Corr. & action, employer’s ment the decision must (8th Cir.2000). “Summary F.3d 853 change a material in the terms or effect evidence, judgment where the proper employment. City conditions of Bechtel v. light when viewed the most favorable (8th Belton, 250 F.3d 1162 Cir. nonmoving party, indicates that no 2001). Hughes perform alleges his 2003 genuine of material fact exists and issue ance evaluation constitutes an adverse em moving party judg- that the is entitled to reject ployment action. The district court a matter of law.” Id. ment as ed the contention because failed any present showing evidence resulted A. Prima Facie Case any or change material to the terms employment. agree. of his prima To establish a facie case of conditions We Amendment, Hughes presented tending on the First has no evidence retaliation based allege prove upon must he en- to show the evaluation was relied plaintiff a required in the terms or to establish the adverse conduct change material effect Spears, prima See to make a facie case.” Harlston v. employment. conditions of his (holding negative per- Douglas Corp., a McDonnell 37 F.3d (8th Cir.1994). Here, an adverse review is not itself formance there is evi- action, and is actionable employment suggest Hughes dence to suffered mate- employer subsequently if uses the re- rially significant disadvantage by having to conditions of to alter the terms or view Sundays Wednesdays work more of the em- employment to the detriment by having performance reviewed by his Therefore, conclude the 2003 ployee.) we Therefore, affirm subordinates. does not constitute an performance review holdings district court’s on these issues. employment action. adverse The district court concluded remain- i.e., ing allegations, the four court also concluded
The district
resulting investigations;
loss of com-
Hughes’s complaints
working
about
Sun
time;
Wednesdays,
policy
pensatory
re
and failure to transfer
days and
and the
narcotics;
troopers
sergeants, Hughes
to review their
were sufficient to
quiring
employment ac
allege
employment
did not constitute adverse
adverse
actions. On
allege any
failed to
tions because
defendants do not contend these
impact on the terms or conditions of his
allegations
satisfy
are insufficient to
employment. Hughes
respond
does not
employment
adverse
action prong of
directly
findings.
to the district court’s
Thus,
Hughes’s prima facie case.
we as-
Instead,
argues
we should view his
sume,
deciding,
without
suf-
allegations cumulatively and find
sum fered an
employment
adverse
action.
allege
are
an adverse
sufficient
3. Causation
disagree.
action.
employment
We
and final
third
element
Although
short of termi
actions
Hughes’s prima facie case
To
is causation.
may
employment
nation
constitute adverse
prove a causal
under the third
connection
statute,
meaning
actions
within
element,
plaintiff
prove
employ
must
everything
employee
“not
that makes an
retaliatory
played part
in the
er’s
motive
unhappy is an actionable adverse action.”
*7
employment
Kipp
adverse
action.
v. Mo.
Indus., Inc.,
Montandon v. Farmland
116
Comm’n,
Highway
Transp.
&
280 F.3d
(8th Cir.1997).
F.3d
359
We have
(8th Cir.2002).
896-97
“[E]vidence
jury
neg
held a reasonable
could conclude
gives
to an inference of a retalia
rise
potential employers
ative references
tory
part
employer
motive on the
of the
constitutes
sufficient adverse action to
prove
sufficient to
a causal connection.”
state a retaliation claim. Smith v. St.
(internal quotation
Id. at 897
marks omit
(8th
Univ.,
Louis
109 F.3d
1266
Cir.
ted).
1997). Conversely, we have
held the
also
prestige
accompa
loss of status and
The district court concluded
staff,
replacement
supervisor’s
any showing
nied
of a
failed to make
of causation
salary
position
respect
compensatory
when her
and
remained the with
to the loss of
same,
presented
did not constitute a
ad
time because he
no evidence of
sufficient
allowing
him to attend the
employment
Ledergerber
policy
verse
action.
Patrol
(8th Cir.1997).
uniform, and
Stangler,
training
were initiated Fisher. all Viewing alleged of the actions in the because the cording to Ellis light Hughes, most favorable to we are by were initiated Fisher and complaints suggesting satisfied there is evidence Wilhoit, by cannot investigated Ellis, retaliatory part motive on the of into motion the show set series Ripley prove sufficient to led to his demotion and events which Moreover, reject causal connection. evidence, they point transfer. As to a argument the defendants’ under Ford that by indicating statement he discov- Wilhoit any alleged wrongdoing did not cause or leading ered the information the second contribute to demotion and complaints during an interview third transfer. Fisher conducted in connection with with Ford, Ford recommended Darnell be complaint. the first disciplined patrol for his violation of policy. Hughes disputes Wilhoit’s version of Later, argued Id. at 557. Ford his recom- events, a transcript those and offers mendation did not cause Darnell’s disci- interview of Fisher which con- Wilhoit’s pline the final because decision was made tains no reference to the incidents involved by patrol’s superintendent. Id. at 561- complaints. in the second and third He disagreed, finding ample 62. This court disputes also of an usefulness affidavit evidence in the record demonstrate the prepared by Fisher which indicates Fisher patrol’s superintendent always followed was the source of the second and third discipline. recommendations Id. at complaints because it does not indicate to Therefore, 562. but for Ford’s recommen- whom reported he the incidents. dation, Darnell would not have been disci- alleges also the third com- plined. Caskey plaint-involving Senator who had Here, represented him in first com- two there is no evidence plaints Caskey prevent initiated to would have been demoted and transferred —was continuing legal complaints. Assuming from to serve as counsel. but for the four complaint pur- As evidence the third was fueled those were initiated and motive, by an improper retaliatory purposes, appar- states sued for Caskey Department told him the ent “set[ ] Missouri mo- (MDOR) Caskey [they] Revenue informed tion series of acts others which property reasonably plates license were the knew or should know would inju- state and could be seized the Patrol. cause others to inflict constitutional in- According Hughes, provided parties.” (citing this ries on third Id. Johnson 743). during investiga- Duffy, Accordingly, formation to Wilhoit 588 F.2d at as *9 tion, Ellis, Caskey find Ripley but Wilhoit refused to contact we Additionally, prima or facie Hughes MDOR. Wilhoit did not has made out show- in in violation of report ing include this information his of retaliation his First Finally, Stottlemyre, we Stottlemyre. Hughes alleg- rights. inform Amendment As in his prima es made unsubstantiated accusa- conclude has failed Wilhoit of the district judgment The is affirmed. the district showing and affirm facie in favor summary judgment granting summary judgment. court of grant court’s reversed, is Non-retaliatory Rea- Legitimate B. pro- for further is remanded and the case of Pretext son/Evidenee ceedings. Patrol court found the The district COLLOTON, concurring Judge, Circuit non-retaliatory legitimate advanced a
had in dissenting part. part in transferring demoting and for reason most of the Hughes because he admitted that this case must be The court holds further concluded facts. It underlying with re- proceedings further remanded for sug presented had no evidence of the four defendants be- spect to three pretext were a the Patrol’s reasons gesting summary granted court cause the district On for unlawful retaliation. defendants admit judgment “on basis reason argues the district court’s Ante, respect- I at 800. was not raised.” advanced beyond arguments ing went conclusion, I this fully disagree with summary judgment by defendants their of the district judgment affirm the would Hughes contends the defendants motion. court as to all of the defendants. prima his facie show only argued against on premised court’s decision The and never discussed ing of retaliation that in the district Hughes’s contention non-discriminatory reasons legitimate defendants proceedings, court “the Accordingly, actions. he contends their showing facie argued against prima limited its court should have the district any legiti- retaliation and never discussed analysis to the issues raised the sum non-discriminatory reasons for their mate mary judgment motion to which he was Ante, by at 800. This assertion actions.” respond. Defen given opportunity ar- incorrect. The defendants Hughes is not raise the issue concede did dants of their motion for sum- gued support summary judgment. in their motion for dispute is no mary judgment “[t]here contend, however, They the district court’s investigation Hughes was under that Mr. holding surprise was no be policy,” of Patrol for serious violations argued Hughes was ter cause them brief (J.A. 162), uncontrovert- at and that “[t]he complaints, not minated on the basis of the facts establish that it was this ed material speech. for his misconduct, random comment and not a required not have Hughes should been year private at a earlier Mr. grant court would anticipate the district meeting, resulted in Mr. planning summary on a basis defendants judgment (Id. disciplined.” at 163- Hughes being Therefore, con- not admit was raised. 64). continued that evi- “[t]he The brief granting court erred in clude the district unequivocal that dence is clear and summary Accordingly, we re- judgment. demoted and transferred Plaintiff was grant summary verse the district court’s engaged in serious Stottlemyre because proceed- for further judgment and remand misconduct, Mr. based what ings. 164). (Id. That these he did.” admitted heading under a as- arguments appeared
III serting causal connection” did “[n]o a refutation of the argument judgment of the district court delimit con- “Causal plaintiffs prima facie case. summary judgment favor of granting necessary element of the nection” is a capacity in his official Colonel
801 case, claim, merely prima Hughes’s argument regarding of a facie see El- Ripley, not (8th Vincenz, 870, lis, and to sought question Revels v. 876 Cir.2004), (Id. credibility in the explanations. and the defendants’ brief of their at 287-88). argument district court never restricted its defeating prima facie case.
to
The district court did not abuse its dis
organizing
arguments
On behalf of defendant
the brief
cretion
these
un
disputed
burden-shifting
filed in the
district
court
der
framework of
Green,
theory
targeted
Douglas
that he was
for McDonnell
Hughes’s
Corp. v.
411
disagreed
Rip-
with
discipline because
U.S.
93 S.Ct.
mary judgment based
Neal
of Daniel
tative for the Estate
engage
protected
that
did
—
Grayson, Plaintiff/Appellant,
Ceballos,
v.
U.S.
activity, see Garcetti
-,
concluded two third,
completed assign and received the
ment for a fourth before he was even protected activi Hughes’s alleged
aware of stated in the district
ty. For the reasons I affirm thorough opinion, would
court’s complaint. judgment dismissing 04-4053, Stottlemyre, No.
See 2005). (W.D.Mo. May