Doyas Ingram v. Dave Johnson ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-3998
___________
Doyas Ingram; Mark Barbaree, *
*
Plaintiffs - Appellants, *
*
v. * Appeal from the United States
* District Court for the
Dave Johnson, individually and in his * Eastern District of Arkansas.
official capacity; Donald Webb, *
individually and in his official capacity, *
*
Defendants - Appellees. *
___________
Submitted: May 13, 1999
Filed: August 20, 1999
___________
Before LOKEN, HANSEN, and MURPHY, Circuit Judges.
___________
LOKEN, Circuit Judge.
Doyas Ingram and Mark Barbaree appeal the district court’s1 grant of summary
judgment dismissing their 42 U.S.C. § 1983 damage claims against two supervisors in
the Arkansas Department of Community Punishment (“DCP”). Parole Administrator
Dave Johnson suspended Ingram and Barbaree for their conduct while transporting a
1
The HONORABLE JAMES M. MOODY, United States District Judge for the
Eastern District of Arkansas.
parolee. Area Parole Supervisor Donald Webb fired Barbaree some months later
following an unrelated incident. Ingram and Barbaree argue these disciplinary actions
were unlawful retaliation for their exercise of First Amendment rights. Having carefully
reviewed the grant of summary judgment de novo, we affirm. See Buazard v. Meridith,
172 F.3d 546, 548 (8th Cir. 1999) (standard of review).
I. The Suspension of Ingram and Barbaree.
On September 25, 1997, Parole Officers Ingram and Barbaree were assigned to
transport parolee Richard Conley from the Prairie County Jail to the Pulaski County
Jail, a trip that should take no more than three hours. According to the deposition
testimony of Ingram and Barbaree, during the trip Conley told them of possible criminal
activity by other parole officers (apparently, taking bribes or gratuities from parolees).
Ingram and Barbaree took Conley to his girlfriend’s house, where Conley gave her
money. While there, at Conley’s request Ingram called a local FBI agent and arranged
an interview. Ingram and Barbaree then took Conley to the FBI offices where he was
interviewed by the agent for thirty to sixty minutes. Ingram and Barbaree were present
but did not help conduct the interview. After the FBI interview, Ingram and Barbaree
took Conley to his father’s house. On the way, the trio stopped at a fast food restaurant
and ate a meal in the DCP van. Finally, some six hours after the trip began, Ingram and
Barbaree delivered Conley to his proper destination, the Pulaski County Jail. No DCP
supervisor knew of the four unauthorized stops until parolee Conley described the
incident to another parole officer in early October. That officer notified Administrator
Johnson, who investigated and suspended Ingram for ten days and Barbaree for three
days for violating DCP policies.
In their complaint, Barbaree and Ingram allege that Johnson “retaliated against
[them] for [their] part in reporting suspected criminal activity” to the FBI. To establish
a § 1983 claim of unlawful First Amendment retaliation, a public employee must prove
that he spoke out on a matter of public concern and that his protected speech was a
-2-
substantial factor in the adverse employment action. See Connick v. Myers, 461 U.S.
138, 142 (1983); Pickering v. Board of Educ., 391 U.S. 563, 568 (1968); Bausworth
v. Hazelwood Sch. Dist., 986 F.2d 1197, 1198 (8th Cir. 1993). The reporting of
possible corruption within a government office or agency is speech on a matter of
public concern. See Barnard v. Jackson County, Mo., 43 F.3d 1218, 1225 (8th Cir.),
cert. denied, 516 U.S. 808 (1995).
On appeal, Ingram and Barbaree argue the case as though they had timely
delivered Conley to the Pulaski County Jail, subsequently reported Conley’s allegations
of parole officer misconduct to the FBI, and then were disciplined for speaking out on
this subject outside of the DCP. But Conley is the one who reported “suspected
criminal activity” to the FBI. Ingram and Barbaree seek First Amendment protection
for themselves because of the role they played in facilitating Conley’s speech to the
FBI agent on this matter of public concern. But Ingram and Barbaree steadfastly deny
playing a speaking role, testifying that they did not solicit Conley’s story, they only
called the FBI agent at Conley’s request, and they did not help the agent interview
Conley. Thus, the only “part” they played in the incident was taking Conley to the FBI
office when they should have been delivering him to the Pulaski County Jail. That
conduct, and the three other unauthorized stops that were unrelated to their First
Amendment claim, were serious violations of DCP policy and procedures. Their
conduct clearly warranted the relatively modest suspensions Johnson imposed.
Even broadly viewing the FBI portion of the Conley incident, the only speech by
Ingram and Barbaree was Ingram’s phone call to the FBI agent, at Conley’s request,
to arrange the interview. That speech was clearly incidental to their unauthorized
conduct. “[W]hen ‘speech’ and ‘nonspeech’ elements are combined in the same course
of conduct, a sufficiently important governmental interest in regulating the nonspeech
element can justify incidental limitations on First Amendment freedoms.” United States
v. O’Brien, 391 U.S. 367, 376 (1968); see Marciariello v. Sumner, 973 F.2d 295, 298-
99 (4th Cir. 1992), cert. denied, 506 U.S. 1080 (1993).
-3-
Because Ingram and Barbaree failed to allege, or present evidence, that they
engaged in speech on a matter of public concern while transporting Conley to the
Pulaski County Jail, the district court properly granted summary judgment dismissing
their claim that the resulting suspensions violated their First Amendment rights. Thus,
we need not consider whether “the interest of the State, as employer, in promoting the
efficiency of the public services it performs through its employees” outweighs Barbaree
and Ingram’s interests as public employees in commenting on such matters. Pickering,
391 U.S. at 568; see Porter v. Dawson Educ. Serv. Coop., 150 F.3d 887, 892 (8th Cir.
1998); Tindle v. Caudell, 56 F.3d 966, 971-72 (8th Cir. 1995). Nor need we consider
the district court’s alternative ruling that Parole Administrator Johnson is entitled to
qualified immunity from these damage claims. See generally Harlow v. Fitzgerald, 457
U.S. 800, 817-18 (1982); Bartlett v. Fisher, 972 F.2d 911, 916 (8th Cir. 1992).
II. The Termination of Barbaree.
Ingram and Barbaree commenced this lawsuit against Johnson on December 4,
1997, some six weeks after their suspensions. At that time, Barbaree was a
probationary employee, and his probationary period was extended an additional six
months as a result of the suspension. Seven months later, a parolee grabbed an
unsecured butcher knife from Barbaree’s desk and attempted suicide during a drug test.
The parolee was subdued and the knife recovered without injury. Five days later, Area
Supervisor Webb terminated Barbaree, explaining in a letter to Barbaree that his
negligent failure to secure the butcher knife “put you, co-workers and clients at
unnecessary risk to injury and could have resulted in loss of life.” Barbaree then filed
an amended complaint naming Webb as a defendant and alleging that Webb violated
Barbaree’s First Amendment rights by firing him in retaliation for filing the lawsuit
against Johnson. The district court granted summary judgment for Webb, concluding
Barbaree did not come forward with sufficient evidence that filing the lawsuit was a
substantial or motivating factor in his termination. We agree.
-4-
There is no evidence connecting the incident with parolee Conley that led to
Barbaree’s three-day suspension, and the incident in which he negligently allowed a
suicidal parolee access to a butcher knife. In addition, the seven-month gap between
the filing of the lawsuit and the termination by Webb “weakens the inference of
retaliation that arises when a retaliatory act occurs shortly after a complaint.” Smith
v. St. Louis Univ., 109 F.3d 1261, 1266 (8th Cir. 1997). Barbaree relies on a
conversation with Webb in which, according to Barbaree, Webb said the termination
was “based on my performance with the weapon, with previous things such as my
DWI, my probationary status, and . . . the FBI thing . . . the deal with Mr. Johnson.”
But Supervisor Webb was not initially a defendant in the lawsuit against Johnson, so
evidence that Webb was aware of “the FBI thing . . .with Mr. Johnson” does not raise
much of an inference that Webb was even aware of the lawsuit. Webb’s statement that
Barbaree’s failure to secure the knife was not the only performance deficiency
considered does not satisfy Barbaree’s burden to show that the stated reason for
termination was a pretext for First Amendment retaliation discrimination. See Dhyne
v. Meiners Thriftway, Inc., No. 98-2537, 1999 WL 512169, at * 9-10 (8th Cir. July 21,
1999). In that same conversation, Barbaree told Webb he felt bad about the knife
incident but did not think it warranted termination. Webb disagreed. As we have
stated on prior occasions, we do not sit as a super-personnel department to resolve such
disagreements. See Singleton v. Cecil, 176 F.3d 419, 428 (8th Cir. 1999) (en banc).
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
-5-