Nadine A. HEMMINGHAUS, Plaintiff-Appellant v. State of MISSOURI; Gary M. Gaertner, Jr., Defendants-Appellees.
No. 13-1566.
United States Court of Appeals, Eighth Circuit.
Submitted: Jan. 14, 2014. Filed: July 1, 2014.
756 F.3d 1100
II
On appeal, Eckert Wordell contends the district court erred in granting summary judgment to FJM Properties, arguing a court should decide the issue of whether nonsignatory FJM Properties can enforce the arbitration provision against signatory Eckert Wordell. We review de novo a district court‘s decision to dismiss in favor of arbitration. Donaldson Co., Inc. v. Burroughs Diesel, Inc., 581 F.3d 726, 731 (8th Cir. 2009).
Whether a particular arbitration provision may be used to compel arbitration between a signatory and a nonsignatory is a threshold question of arbitrability. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84-85, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (delineating potentially dispositive threshold issues between “questions of arbitrability” and “procedural questions“). We presume threshold questions of arbitrability are for a court to decide, unless there is clear and unmistakable evidence the parties intended to commit questions of arbitrability to an arbitrator. Id. at 83, 123 S.Ct. 588; Express Scripts, Inc. v. Aegon Direct Mktg. Servs., Inc., 516 F.3d 695, 701 (8th Cir. 2008). We have previously held the incorporation of the AAA Rules into a contract requiring arbitration to be a clear and unmistakable indication the parties intended for the arbitrator to decide threshold questions of arbitrability. See Green v. SuperShuttle Int‘l, Inc., 653 F.3d 766, 769 (8th Cir. 2011) (noting the AAA Rules empower the arbitrator to determine his or her own jurisdiction over a controversy between the parties). Eckert Wordell‘s drafting of the architectural services contract here to incorporate the AAA Rules requires the same result.
III
The judgment of the district court is affirmed.
Michael W. Kopp, AAG, argued, Jefferson City, MO (Jase C. Carter, AAG, on the brief), for Appellee.
Before RILEY, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.
RILEY, Chief Judge.
Nadine Hemminghaus worked as a court reporter for then Missouri circuit judge Gary M. Gaertner Jr. from October 2006 until April 2009. Hemminghaus complains Judge Gaertner fired her because she asked for leave from work to care for her children, whom she suspected had been abused by their nanny, and because she criticized the St. Louis Police Department and the county prosecutor for not pursuing criminal charges against the nanny. Hemminghaus filed claims against the State of Missouri (the State) for violating
I. BACKGROUND
A. Facts2
Judge Gaertner was appointed as a Missouri circuit judge by the governor of Missouri in 2000, and successfully ran in retention elections in 2002 and 2008. In December 2009, Judge Gaertner was appointed to the Missouri Court of Appeals.
Before working for Judge Gaertner, Hemminghaus held two other court reporter positions for the State from May 1997 until October 2006. Judge Gaertner appointed Hemminghaus as his court reporter in October 2006, and she held that position until Judge Gaertner fired her on April 28, 2009. By statute, Hemminghaus was Judge Gaertner‘s “official court reporter” and held her “office during the pleasure of” Judge Gaertner.
Hemminghaus sought criminal charges against the nanny, but the St. Louis county prosecutor declined to press charges. Hemminghaus considered speaking to the media about the case, but Judge Gaertner discouraged her from doing so by telling Hemminghaus she would be fired if she talked to the press. Hemminghaus did anonymously post “blog” messages on the Internet about her children‘s case and the issue of child abuse.
As Hemminghaus‘s children‘s behavioral problems escalated, she felt she needed more leave time to care for them, particularly in the mornings. Hemminghaus also felt she needed leave time to take the children to see their doctors and counselors for treatment and testing. According to Hemminghaus, Judge Gaertner sometimes did not answer Hemminghaus‘s requests for leave, causing her to miss doctor appointments.
Before her termination, Hemminghaus‘s relationship with Judge Gaertner became strained. On the day before her termination, April 27, 2009, Judge Gaertner denied leave to Hemminghaus to care for her children. As reported by Hemminghaus, during a conversation in chambers, Judge Gaertner told Hemminghaus not to mention the case against the nanny to anyone at the courthouse. Later that day, Judge Gaertner told Hemminghaus no one would take her case because no one would believe her children. Hemminghaus told Judge Gaertner, “[P]lease don‘t do anything to harm me or my case, and I won‘t have to tell people what you‘re doing to me by denying my rights.” Hemminghaus wondered aloud if the investigative television show Dateline would report on her case. Hemminghaus claims Judge Gaertner reacted by jumping up, running from behind his desk, and screaming, “Get out of here now and never come back in here again!” Hemminghaus told Judge Gaertner, “If you‘re going to fire me, just do it because I can‘t take this anymore.”
The next day, Judge Gaertner called a meeting with Hemminghaus and Gail Crane, the Chief Probate Clerk. Suspecting she would be fired, Hemminghaus called her attorney and brought her cell phone with her attorney on the line into chambers. Because the attorney was on the phone, Judge Gaertner ended the meeting. He sent Hemminghaus a termination letter later that day.
B. Procedural History
Hemminghaus filed a complaint in the district court alleging Judge Gaertner fired her for two reasons: first, because she asked for leave from work to care for her children, and second, because she criticized both the St. Louis county prosecutor for not pursuing criminal charges against the nanny and the police department for its handling of the case. Hemminghaus appeals the district court‘s grant of summary judgment to defendants on her claims for violation of the FMLA, alleged against the State, and of retaliation in violation of her First Amendment right to free speech, alleged against Judge Gaertner.
II. DISCUSSION
A. Standard of Review
A district court “shall grant summary judgment if the movant shows that
B. FMLA Claim
Hemminghaus contends Judge Gaertner violated the FMLA both by denying her leave to care for her children and terminating her for requesting such leave. The State argues Hemminghaus is not an eligible employee under the FMLA because she is excluded as a personal staff member of a public elective office holder. The FMLA excludes from its protection those employees who are “selected by the holder” of a “public elective office of that State” “to be a member of his personal staff.”
1. Public Elective Office Holder
Certain state judges in Missouri, including Judge Gaertner, are selected according to the “Missouri Plan“—the governor first appoints them and they later can declare candidacy for a retention election without any opposing candidate. See
Our court has not directly answered this question. In 1984, we noted, but did not address, the issue in the context of Title VII of the Civil Rights Act of 1964: “Our holding that [an employee] was not an ‘immediate adviser’ makes it unnecessary to decide the further question whether Missouri Circuit Judges ... are ‘elected to public office’ within the meaning of [42 U.S.C.] § 2000e(f).” Goodwin v. Cir. Ct. of St. Louis Cnty., Mo., 729 F.2d 541, 549 n. 10 (8th Cir. 1984).3
In 1990, we discussed this issue in the context of an Age Discrimination in Employment Act (ADEA) claim. See Gregory v. Ashcroft, 898 F.2d 598, 600 (8th Cir. 1990), aff‘d, 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). The ADEA definition of “employee” excludes “any person elected to public office in any State ... by the qualified voters thereof, or any person chosen by such officer to be on such officer‘s personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office.”
As a preliminary matter, we note that the District Court found [the Missouri state judges], initially appointed by the Governor and retained in office by a majority of the voters as required by the Missouri Plan, to be outside the ADEA‘s exception for persons “elected to public office“. Although we are inclined to disagree with this aspect of the District Court‘s decision, the Governor did not cross-appeal this issue, it was not briefed by either side, and it is not properly before us. We therefore express no opinion on this point, and shall assume for the balance of this opinion that state judges selected according to the Missouri Plan are appointed and not “elected” within the meaning of the ADEA.
Nevertheless, we now decide the district court was correct in concluding Judge Gaertner was a public elective office holder. The FMLA language at issue excludes an employee who is a “holder” of a “public elective office.”
2. Personal Staff Member
The next question is whether Hemminghaus was “selected by” Judge Gaertner “to be a member of his personal staff.”
These factors include: (1) whether the elected official has plenary powers of appointment and removal, (2) whether the person in the position at issue is personally accountable to only that elected official, (3) whether the person in the position at issue represents the elected official in the eyes of the public, (4) whether the elected official exercises a considerable amount of control over the position, (5) the level of the position within the organization‘s chain of command, and (6) the actual intimacy of the working relationship between the elected official and the person filling the position.
Teneyuca v. Bexar Cnty., 767 F.2d 148, 150-52 (5th Cir. 1985) (finding an assistant district attorney was a member of the “personal staff” of the elected district attorney). See also Rutland v. Pepper, 404 F.3d 921, 922-24 (5th Cir. 2005) (per curiam) (applying the Teneyuca factors in the FMLA context and finding a deputy clerk was a member of the “personal staff” of the elected chancery clerk). We apply the Teneyuca factors to assist us here.
First, Judge Gaertner had plenary power to hire and fire Hemminghaus, as provided by Missouri statute: “each circuit judge shall appoint an official court reporter.... Such court reporter shall be a sworn officer of the court, and shall hold [her] office during the pleasure of the judge appointing [her].”
Second, “[t]he fact that state law permits” Judge Gaertner “to have this power shows that the state intends for the [court reporter] to be personally accountable to only one public official.” Owens v. Rush, 654 F.2d 1370, 1376 (10th Cir. 1981). The fact Hemminghaus would transcribe testimony for requesting attorneys or would occasionally fill in for other court reporters does not materially alter this conclusion.
Third, while Hemminghaus did not answer the phones or speak for Judge Gaertner in his absence, she appeared publicly as part of his staff in an integral aspect of his judicial appointment: presiding in the courtroom. She was a “sworn officer of the court,”
Fourth, Judge Gaertner exercised “a considerable amount of control” over the official court reporter position. As noted, he had complete authority to hire and fire his official court reporter. See
Fifth, Hemminghaus reported directly to Judge Gaertner, without any intermediate supervisor in the chain of command. “[W]hen applying the fifth factor,” we agree with the Fifth Circuit that the “personal staff exception ... was primarily intended to exempt the elected official‘s immediate subordinates or those who are his first line advisors.” Rutland, 404 F.3d at 924 n. 3 (second alteration in original) (emphasis added) (quoting Montgomery v. Brookshire, 34 F.3d 291, 296 (5th Cir. 1994)).
The sixth factor, “the actual intimacy of the working relationship between the elected official and the person filling the position,” Teneyuca, 767 F.2d at 151, is more difficult to evaluate. Presumably, during the time Hemminghaus was court reporting, she spent the day in close proximity with Judge Gaertner. But without testimony from Hemminghaus at the summary judgment stage recognizing such intimacy, it cannot be presumed here. Regardless, the majority of the Teneyuca factors, and common sense, favor the conclusion that Hemminghaus was a member of Judge Gaertner‘s “personal staff.”
To bolster her position to the contrary, Hemminghaus cites a U.S. Department of Labor (DOL) opinion stating official court reporters appointed by a judge do not fall into the personal staff exception. The DOL concluded:
[C]ourt reporters do not fall under the personal staff exemption because they do not have the highly intimate and sensitive position of responsibility necessary to qualify for this exemption. They do not render advice or counsel to the judges or have any intimate or sensitive status vis a vis the judges. We also do not believe they represent the judges in the eyes of the public or are first line advisors. Thus, because court reporters do not have responsibilities of this nature, the personal staff exemption does not apply.
The district court rejected the DOL opinion, stating, “Th[e] author[ ] did not consider the facts of this case.... In light of my own interpretation of the case law, I do not find [the DOL reasoning] particularly helpful.” We agree.
“Interpretations such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law—do not warrant Chevron-style deference.” Christensen v. Harris Cnty., 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000).7 “Instead, interpretations contained in formats such as opinion letters are ‘entitled to respect’ ... but only to the extent that those interpretations have the ‘power to persuade.‘” Id. (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)).
The DOL opinion lacks persuasive force in light of the undisputed facts of this case. “Our inquiry into the nature and circumstances of the employment relationship between” Hemminghaus and Judge Gaertner “for the purpose of determining whether” Hemminghaus “is exempt from the protection of the” FMLA “is highly factual. It would not lend itself well to disposition by summary judgment were it not that most of the necessary facts are provided by statute or by” Hemminghaus‘s “testimony and summary judgment evidence.” Gunaca v. Texas, 65 F.3d 467, 473 (5th Cir. 1995).
Viewing the facts as a whole, in the light most favorable to Hemminghaus, we conclude Hemminghaus was a member of the “personal staff” of Judge Gaertner, who held a “public elective office.”
C. First Amendment Retaliation Claim
Hemminghaus claims Judge Gaertner terminated her in retaliation for her speech, in violation of the protections afforded her by the First Amendment.9 The district court determined Judge Gaertner was entitled to qualified immunity on Hemminghaus‘s First Amendment retaliation claim.
“In resolving questions of qualified immunity at summary judgment, courts engage in a two-pronged inquiry. The first asks whether the facts, ‘[t]aken in the light most favorable to the party asserting the injury, ... show the officer‘s conduct violated a [federal] right.‘” Tolan v. Cotton, 572 U.S. 650, 134 S.Ct. 1861, 1865, 188 L.Ed.2d 895 (2014) (per curiam) (alterations in original) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). “The second prong of the qualified-immunity analysis asks whether the right in question was ‘clearly established’ at the time of the violation.” Tolan, 572 U.S. at 650, 134 S.Ct. at 1866 (quoting Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)). “The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).
As to the first prong, violation of a constitutional right, “the First Amendment protects a public employee‘s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), “and the cases decided in its wake identify ... inquiries to guide interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern.” Garcetti, 547 U.S. at 418, 126 S.Ct. 1951 (alteration in original). “If the answer is no, the employee has no First Amendment
Next, if the possibility of a First Amendment claim has arisen, “we must ask whether [the employer] has produced evidence to indicate the speech had an adverse impact on the efficiency of the [employer‘s] operations.” Lindsey v. City of Orrick, Mo., 491 F.3d 892, 900 (8th Cir. 2007). “Where there is no evidence of disruption, resort to the Pickering factors is unnecessary because there are no government interests in efficiency to weigh against First Amendment interests.” Belk v. City of Eldon, 228 F.3d 872, 881 (8th Cir. 2000).
Finally, if such an adverse impact is found, the court engages in the Pickering balancing inquiry: “The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” Garcetti, 547 U.S. at 418, 126 S.Ct. 1951. “The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568, 88 S.Ct. 1731. These questions “are matters of law for the court to resolve.” Kincade v. City of Blue Springs, Mo., 64 F.3d 389, 395 (8th Cir. 1995).
1. Matter of Public Concern
“Whether an employee‘s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (footnote omitted). “Speech that involves a matter of political, social or other concern to the community is of public concern.” Calvit v. Minneapolis Pub. Sch., 122 F.3d 1112, 1117 (8th Cir. 1997). “The form and context are examined to determine whether the public employee speaks as a concerned citizen informing the public that the government is not properly discharging its duties, or merely as an employee speaking about internal practices relevant only to fellow employees.” Id.
In this case, Hemminghaus posted blog entries on the Internet about her case against her nanny. Most of the blog entries detail the particular personal issues facing Hemminghaus in her quest to see the nanny prosecuted. At least some of the blog posts express concern for the public at large and not just Hemminghaus‘s children, including the following: “I would call every daycare in the state if I thought I could do that legally.” “We decided to do what we thought was the ‘RIGHT THING’ and try and protect others.” “Please pay attention to who is up for re-election and do research on them before you vote. ... You[r] children have a voice in you when it comes to voting.”
Hemminghaus told Judge Gaertner she wanted to speak publicly to expose the prosecutor‘s decision not to bring charges against her nanny. Hemminghaus wanted others to know of the danger the nanny ostensibly posed. Judge Gaertner apparently told Hemminghaus if she proceeded she would be fired. On April 27, 2009, Hemminghaus wondered aloud to Judge Gaertner if Dateline would be interested in her case against the nanny. Judge Gaertner allegedly responded by screaming at Hemminghaus to get out.
“[T]he proper approach to the problem of child abuse [is a] subject[ ] in which citizens have a demonstrated interest.” Calvit, 122 F.3d at 1117. Although Hem-
2. Adverse Effect on Courtroom Operations
Judge Gaertner “bears the burden under the Pickering balancing test of establishing permissible grounds” for Hemminghaus‘s discharge. Kincade, 64 F.3d at 397. But “we do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.” Connick, 461 U.S. at 152, 103 S.Ct. 1684 (footnote omitted). “[W]e have consistently given greater deference to government predictions of harm used to justify restriction of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large.” Waters v. Churchill, 511 U.S. 661, 673, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (plurality opinion). “[W]e have given substantial weight to government employers’ reasonable predictions of disruption, even when the speech involved is on a matter of public concern.” Id. “[I]n determining whether particular speech caused disruption in the workplace and therefore is not protected, we have held ‘[e]vidence of actual disruption ... is not required in all cases.‘” Bailey, 451 F.3d at 521 (last two alterations in original) (quoting Shands v. City of Kennett, 993 F.2d 1337, 1344 (8th Cir. 1993)).10
“Pertinent considerations in the application of the Pickering test are whether the employee‘s speech has a detrimental impact on working relationships where personal loyalty or confidence is necessary, and whether the speech impedes the efficient operation of the governmental entity‘s function.” Barnard v. Jackson Cnty., Mo., 43 F.3d 1218, 1224 (8th Cir. 1995). A judge has a particular responsibility to promote confidence in the judiciary. See
“Although such evidence is not required, sufficient evidence of disruption exists in this case.” Bailey, 451 F.3d at 521 (finding “sufficient evidence of potential workplace disruption” (emphasis added)). Here, the county prosecutor was a frequent party in Judge Gaertner‘s courtroom. Hemminghaus‘s repeated threats to speak with the media about the county prosecutor‘s alleged misdeeds (including on the day before her termination) could implicate “a judge‘s interest in avoiding
Finally, Hemminghaus‘s own interactions with the police department, as reported to Judge Gaertner by an assistant county prosecuting attorney, could create an appearance of impropriety—the county attorney reported that Hemminghaus went to the police department making demands and had to be escorted from the police department. The police department also chastised Hemminghaus for making harassing telephone calls to the nanny, who filed for a protection order against Hemminghaus. Hemminghaus does not deny these events occurred, stating, for example, that “the police had [ ] gotten [her] to agree not to call the nanny again,” but emphasizes that these events occurred outside the workplace. Hemminghaus ignores the potential for an appearance of impropriety to arise when a “sworn officer of the court,”
Hemminghaus‘s blog posts also describe workplace disruption. (“The job is practically emeshed [sic] in my personal life now as once I stated I‘d go to the press unless I saw some action from someone to do something about her, they started to retaliate“; “I‘m screwed as far as work. As for the job, I would leave it in a minute if I could“). By her own admission, the relationship between Hemminghaus and Judge Gaertner was strained. Hemminghaus reported she called a co-worker “to tell [the co-worker] it was just out of control with the judge.” Hemminghaus also admits a co-worker disclosed that Hemminghaus made threatening comments about Judge Gaertner. Hemminghaus merely emphasizes the comments were not physically threatening.
Several of Hemminghaus‘s remarks or actions were clearly insubordinate: “[P]lease don‘t do anything to harm me or my case, and I won‘t have to tell people what you‘re doing to me by denying my rights“; “If you‘re going to fire me, just do it because I can‘t take this anymore.” Perhaps most serious, Hemminghaus brought a cell phone with her attorney on the line into chambers for a meeting with Judge Gaertner.
As in Bailey, where this court found adequate disruption when the employee and supervisor had an exchange that “became quite heated, with [the supervisor] eventually giving [the employee] an ultimatum to behave or be fired” and where the employee‘s speech “eventually led to another confrontation with [the supervisor] at a conference,” Hemminghaus‘s actions are “sufficient evidence of disruption.” Bailey, 451 F.3d at 521.11
3. Pickering and Clearly Established Law
Under the Pickering test, a number of interrelated factors are taken into account in balancing the competing interests of government-employer and citizen-employee. These factors include:
The facts provided by Hemminghaus‘s record establish an admitted lack of harmony in chambers and a deterioration in the relationship between Judge Gaertner and Hemminghaus. The district court determined,
[R]egardless of whether all of Hemminghaus’ abundant speech was protected under Pickering, her right to engage in such speech was not clearly established at the time she was fired. Given her position as court reporter and the weight of [Judge] Gaertner‘s interest in impartiality and public confidence in the courts, it was reasonable for [Judge] Gaertner to be concerned about the potential conflict of interest that Hemminghaus’ criticisms of the prosecutor may have created.
Hemminghaus argues the district court erred by emphasizing potential conflicts when “there is no evidence in this case that Hemminghaus compromised that integrity and impartiality by criticizing the prosecutor‘s office.” Hemminghaus does not cite clearly established law putting Judge Gaertner on notice that Pickering balancing in a situation such as this would fall in Hemminghaus‘s favor, nor have we identified any such case law. Because Hemminghaus spoke mostly about her own private case, and disruption in the workplace was substantial and not “minimal at best,” Sexton, 210 F.3d at 914, it was not “clearly established” that Pickering balancing would fall in Hemminghaus‘s favor. Judge Gaertner did not have notice that his termination of an insubordinate employee who compromised the propriety and efficiency of his courtroom could violate her right to free speech. The district court correctly determined Judge Gaertner was entitled to qualified immunity on Hemminghaus‘s
III. CONCLUSION
We affirm the judgment of the district court for the reasons stated in its well-reasoned opinion, as amplified here.
Notes
The ADEA was interpolated into the [FLSA], and its definition of employee tracks the FLSA‘s.E.E.O.C. v. Sidley Austin Brown & Wood, 315 F.3d 696, 708 (7th Cir. 2002) (Easterbrook, J., concurring).29 U.S.C. § 203(e) . It turns out to be a definition in wide use. Language essentially identical to the first clause of§ 630(f) appears in [six other statutes, including the FMLA,29 U.S.C. § 2611(3) (incorporating§ 203(e) ), and Title VII,42 U.S.C. § 2000e(f) ]. This means that a definition may be secured from opinions that have addressed these other statutes.