United States Ex Rel. Golden v. Arkansas Game & Fish Commission ( 2003 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 02-3409
    ___________
    United States of America,                   *
    ex rel Douglas Golden,                      *
    *
    Appellant,                     *
    *
    v.                                    *
    *
    Arkansas Game & Fish Commission;            *
    Steve N. Wilson, individually and in        *
    his official capacity as Director for the   *   Appeal from the United States
    Arkansas State Game and Fish                *   District Court for the Eastern
    Commission; Kirk Dupps, individually        *   District of Arkansas.
    and as a member of the Arkansas State       *
    Game and Fish Commission; W. R.             *
    Stephens, individually and as a member      *
    of the Arkansas State Game and Fish         *
    Commission; Bill Bridgforth,                *
    individually and as a member of the         *
    Arkansas State Game and Fish                *
    Commission; Marion McCollum,                *
    individually and as a member of the         *
    Arkansas State Game and Fish                *
    Commission; Jim Hinkle, individually        *
    and as a member of the Arkansas State       *
    Game and Fish Commission; Lester            *
    Sitzes, Dr., individually and as a          *
    member of the Arkansas State Game           *
    and Fish Commission; Forrest Wood,          *
    individually and as a member of the         *
    Arkansas State Game and Fish                *
    Commission,                                 *
    *
    Appellees.                 *
    ___________
    Submitted: May 12, 2003
    Filed: June 25, 2003
    ___________
    Before WOLLMAN and BEAM, Circuit Judges, and Nangle,1 District Judge.
    ___________
    BEAM, Circuit Judge.
    Douglas Golden (Golden) appeals the district court's2 grant of summary
    judgment to Appellees Arkansas Game and Fish Commission (AG&FC), Steve N.
    Wilson, Kirk Dupps, W. R. Stephens, Bill Bridgforth, Marion McCollum, Jim Hinkle,
    Dr. Lester Sitzes, and Forrest Wood (collectively, "Appellees"). We affirm.
    I.    BACKGROUND
    Golden was employed for almost thirteen years with AG&FC before being
    demoted and subsequently terminated on May 7, 1999. It is undisputed that in early
    1996, Golden was directed by his employer to discontinue patronage of a restaurant
    located in the Jonesboro Holiday Inn during AG&FC business hours.3 Management
    1
    The Honorable John F. Nangle, United States District Judge for the Eastern
    District of Missouri, sitting by designation.
    2
    The Honorable James M. Moody, United States District Judge for the Eastern
    District of Arkansas.
    3
    Apparently, AG&FC management in the Jonesboro office had been receiving
    complaints from the public that employees in uniform driving state cars were
    spending substantial amounts of on-duty time drinking coffee and socializing at the
    -2-
    in AG&FC changed several weeks later, and Golden resumed his visits to the
    restaurant during business hours.4 He received verbal orders and two written notices
    to cease visiting the restaurant, one on August 14, 1996, from his supervisor Robert
    Zachary and one on August 31, 1998, from Myron Means, Assistant Supervisor for
    District 1. Despite these notices, Golden continued to visit the restaurant. On
    December 2, 1998, Zachary observed Golden at the prohibited restaurant. It is these
    actions that AG&FC allege caused Golden's demotion and subsequent discharge for
    insubordination. Golden asserts that there were other reasons for his discharge. In
    August of 1996, after receipt of the first written notice to discontinue his visits to the
    restaurant, Golden reported to Zachary's supervisor, Scott Yaich, that Zachary was
    intoxicated in public while on duty in an AG&FC vehicle. Yaich investigated
    Golden's complaint and found it to be meritless.
    In addition, in 1993 or 1994, Golden and his co-worker, Dennis Elkins, met
    with Bobby Hogue, an Arkansas State Representative, to inform him that Don Acres,
    Chief of Wildlife Management, was misappropriating inventory.5 Golden alleges that
    these events, along with Golden's relationship with his grandson, who was involved
    restaurant.
    4
    Golden contends that he assumed that when the management changed, the
    directive also changed. However, he provides no evidence that he was given explicit
    permission by any member of the management that he could resume his visits to the
    restaurant.
    5
    Representative Hogue recalls the meeting with Golden and Elkins, but does
    not recall that they discussed misappropriated inventory. Rather, he remembers
    discussing a general lack of equipment available to AG&FC in that area of Arkansas.
    Similarly, Elkins also denies that the discussion with Representative Hogue involved
    fraudulent activity by AG&FC.
    -3-
    in the Westside School shooting in Jonesboro, Arkansas, on March 24, 1998, were
    the real causes for his discharge.6
    Golden filed this action on behalf of and in the name of the United States under
    the qui tam provisions of the False Claims Act, 31 U.S.C. §§ 3729-3733 (FCA), and
    included individual claims under the whistleblower protection provision of the FCA.
    Golden also sued individually under 42 U.S.C. § 1983.
    On January 17, 2002, the district court dismissed Golden's FCA claims against
    AG&FC as an agency, the FCA claims against the individuals in their official
    capacities, the section 1983 claims for damages against the individuals in their
    official capacities, and the section 1983 claim against AG&FC. This left Golden's
    FCA claims against the individuals in their individual capacities, the section 1983
    claims against the individuals in their individual capacities, and the section 1983
    claims for injunctive relief against the individuals in their official capacities.
    On September 9, 2002, the district court granted AG&FC's motion for summary
    judgment on the remaining claims. Golden appeals this second decision.
    II.   DISCUSSION
    We review the district court's grant of summary judgment de novo. United
    States ex rel. Costner v. United States, 
    317 F.3d 883
    , 886 (8th Cir. 2003). Summary
    judgment is proper when there is no genuine issue of material fact in dispute. Fed.
    R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 248 (1986). The
    non-moving party receives the benefit of all reasonable inferences to be drawn from
    the evidence. Krause v. Perryman, 
    827 F.2d 346
    , 350 (8th Cir. 1987).
    6
    There is absolutely no firm evidence in the record that the school shooting
    incident affected Golden's employment, simply Golden's stated belief that it might
    have.
    -4-
    Although summary judgment is not proper where disputes exist on
    issues of material fact, a non-movant cannot simply rely on assertions
    in the pleadings to survive a motion for summary judgment. Once the
    moving party has met its burden of showing the absence of a genuine
    issue of material fact and an entitlement to judgment as a matter of law,
    the non-moving party may not rest on the allegations of his pleadings,
    but must set forth specific facts, by affidavit or other evidence, showing
    that a genuine issue of material fact exists.
    Krein v. DBA Corp., 
    327 F.3d 723
    , 726 (8th Cir. 2003) (internal quotations omitted).
    A.     FCA Claims Against the Individuals in Their Individual Capacities
    In order to make a prima facie case under the FCA, Golden must show that (1)
    the defendant made a claim against the United States; (2) the claim was false or
    fraudulent; and (3) the defendant knew the claim was false or fraudulent. See United
    States ex rel. Guadineer & Comito, L.L.P. v. Iowa Dep't of Human Servs., 
    269 F.3d 932
    , 936 (8th Cir. 2001), cert. denied, 
    536 U.S. 925
    (2002). The district court in its
    January order dismissed the FCA claim against AG&FC and against the other
    Appellees in their official capacities. Thus, Golden would need to show that the
    Appellees in their individual capacities knowingly made false claims for government
    reimbursement. We agree with the district court that Golden has proffered no such
    evidence. Thus, Golden's qui tam claim under the FCA must fail.
    Golden's retaliation claim under the FCA also fails as a matter of law. As the
    district court noted, such a claim can only be against an "employer." 31 U.S.C. §
    3730(h). The district court dismissed the retaliation claim against AG&FC and
    against the individuals in their official capacities in its January order, which is not on
    appeal here. Thus, the remaining retaliation claim is against Wilson and the
    Commissioners in their individual capacities. AG&FC, not Wilson or the
    Commissioners in their individual capacities, is Golden's employer. See United
    -5-
    States ex rel. Siewick v. Jamieson Sci. and Eng'g, Inc., 
    322 F.3d 738
    , 740 (D.C. Cir.
    2003); Yesudian, ex rel. United States v. Howard Univ., 
    270 F.3d 969
    , 972 (D.C. Cir.
    2001). Thus, Golden's retaliation claim against them in their individual capacities
    must fail.
    B.     Section 1983 Claims Against the Individuals in Their Individual
    Capacities and for Injunctive Relief Against the Individuals in Their
    Official Capacities
    Golden alleges that Appellees violated his rights under 42 U.S.C. § 1983 when
    he was demoted and discharged. Golden claims a due process violation, a free speech
    and free association violation, and an equal protection violation. We agree with the
    district court's treatment of the meritless due process and equal protection claims. See
    8th Cir. R. 47B.
    We give Golden the benefit of all reasonable inferences in evaluating the
    district court's grant of Appellees' motion for summary judgment on his free speech
    and free association claims. See 
    Perryman, 827 F.2d at 350
    . However, once
    Appellees proffered their non-discriminatory reason for terminating Golden
    (frequenting the banned restaurant after being told not to), the burden shifted to
    Golden to present evidence that the reason given for his discharge was pretextual.
    Kiel v. Select Artificials, Inc., 
    169 F.3d 1131
    , 1135 (8th Cir. 1999).
    [T]he ultimate question is whether the plaintiff presents evidence of
    conduct or statements by persons involved in the employer's decision-
    making process reflective of a discriminatory attitude sufficient to allow
    a reasonable jury to infer that the attitude was a motivating factor in the
    employer's decision to fire the plaintiff.
    
    Id. (internal quotations
    omitted). Golden cannot rely simply on his prima facie case,
    but he must submit specific evidence that rebuts Appellees' proffered non-
    discriminatory reason (frequenting the banned restaurant after being told not to) for
    -6-
    his termination. See 
    id. He must
    also establish a causal connection and actual
    involvement by the named parties. He has failed to submit any evidence connecting
    Appellees with the decision to terminate him, any evidence connecting the
    termination to his alleged protected speech, any evidence that Appellees knew of his
    alleged protected speech or any evidence that the proferred non-discriminatory reason
    was in any manner false. Without this evidence summary judgment must be granted.
    Thus, Golden's section 1983 claims of free speech and association must fail.
    III.   CONCLUSION
    For the reasons stated above, we affirm the judgment of the district court.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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