Louis Naes v. City of St. Louis, Missouri ( 2023 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-2021
___________________________
Louis Naes
Plaintiff - Appellant
v.
City of St. Louis, Missouri; Angela Coonce, Major, in her individual and official
capacities; John Hayden, Chief, in his official and individual capacities
Defendants – Appellees
------------------------------
United States
Amicus on Behalf of Appellant(s)
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: February 16, 2023
Filed: June 14, 2023
[Unpublished]
____________
Before SMITH, Chief Judge, STRAS and KOBES, Circuit Judges.
____________
PER CURIAM.
Louis Naes is a police officer for the City of St. Louis. Naes was initially
assigned to the Nuisance Unit as an Animal Abuse Investigator. Five years into
Naes’s tenure, Police Chief John Hayden appointed Major Angela Coonce to oversee
the Nuisance Unit. Two weeks later, Coonce transferred Naes out of the Nuisance
Unit to a patrol position and replaced him with a gay officer. Naes alleged that
Coonce openly favors gay officers and transferred him because he is straight. Naes
sued the City for sexual orientation discrimination under Title VII, the Missouri
Human Rights Act (MHRA), and the Equal Protection Clause.
The district court 1 initially granted summary judgment to the City on the
MHRA and equal protection claims, but denied summary judgment on the Title VII
claim. But then we decided Muldrow v. City of St. Louis, 30 F.4th 680 (8th Cir.
2022), petition for cert. filed, 91 U.S.L.W. 3041 (U.S. Aug. 29, 2022) (No. 22-193),
and the City moved for the district court to reconsider its Title VII decision. In light
of Muldrow, the district court granted summary judgment to the City. Naes appeals
the district court’s judgment on the Title VII, MHRA, and equal protection claims.
We review the grant of summary judgment de novo. Recio v. Creighton
Univ., 521 F.3d 934, 938 (8th Cir. 2008). Summary judgment should be granted if
the City can show that there is “no genuine dispute as to any material fact” and that
it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
Naes presents no direct evidence of discrimination, so we apply the
McDonnell Douglas burden-shifting framework to the Title VII, MHRA, and equal
protection claims. See Singletary v. Mo. Dep’t of Corr., 423 F.3d 886, 891 n.4 (8th
Cir. 2005) (Title VII); Button v. Dakota, Minn. & E. R.R. Corp., 963 F.3d 824, 831
n.5 (8th Cir. 2020) (MHRA); Lockridge v. Bd. of Trs. of Univ. of Ark., 315 F.3d
1005, 1010 (8th Cir. 2003) (en banc) (equal protection). To establish his prima facie
case of discrimination under McDonnell Douglas, Naes must prove that he suffered
1
The Honorable Sarah E. Pitlyk, United States District Judge for the Eastern
District of Missouri.
-2-
an adverse employment action. Hager v. Ark. Dep’t of Health, 735 F.3d 1009, 1014
(8th Cir. 2013).
We first turn to whether—after Muldrow—Naes can demonstrate an adverse
employment action. In Muldrow, a sergeant was transferred within the St. Louis
Police Department. 30 F.4th at 684. Her transfer resulted in changed
responsibilities, working non-standard hours, and losing out on her previous
overtime opportunities. Id. at 685. But after the transfer, the sergeant’s salary, rank,
and potential for promotion remained the same. Id. at 688, 690. We held that “[a]n
adverse employment action is a tangible change in working conditions that produces
a material employment disadvantage.” Id. at 688 (citation omitted). And absent
proof of harm, we determined that the sergeant’s transfer was not a sufficient adverse
employment action. Id.
Naes’s circumstances are nearly identical to those in Muldrow. After his
transfer, Naes went from investigating specialized cases to working as a patrol
officer. His work schedule changed from a standard schedule to rotating day and
night shifts. And he was no longer able to take advantage of the same overtime
opportunities. Still, after the transfer, Naes’s salary, rank, and potential for
promotion did not change. 2
Naes does not sufficiently distinguish his transfer from that in Muldrow. We
are bound to follow Muldrow and conclude that Naes did not suffer an adverse
employment action. See generally Mader v. United States, 654 F.3d 794, 800 (8th
Cir. 2011) (en banc) (“It is a cardinal rule in our circuit that one panel is bound by
2
To the extent that Naes claims there were other minor changes to his position,
they are insufficient to support an adverse employment action. Jackman v. Fifth Jud.
Dist. Dep’t of Corr. Servs., 728 F.3d 800, 804 (8th Cir. 2013) (“[M]inor changes in
duties or working conditions, even unpalatable or unwelcome ones, which cause no
materially significant disadvantage, do not rise to the level of an adverse
employment action.”).
-3-
the decision of a prior panel.” (citation omitted)). The district court properly granted
summary judgment to the City on Naes’s Title VII claim.
Naes’s inability to show an adverse employment action also forecloses any
possible MHRA and equal protection claims. As a threshold matter, we doubt the
viability of these claims. The Missouri Supreme Court has not extended the MHRA
to claims of sexual orientation discrimination. See Lampley v. Mo. Comm’n on
Hum. Rts., 570 S.W.3d 16, 24–25 (Mo. banc 2019). We decline to speculate if it
would do so after Bostock v. Clayton County, 140 S. Ct. 1731 (2020). And we have
not extended Bostock to equal protection claims. Even if Naes could overcome this
hurdle, he cannot demonstrate an adverse employment action necessary to establish
a prima facie case of sex discrimination under the MHRA or the Equal Protection
Clause.
Naes’s Title VII, MHRA, and equal protection claims fail, and we affirm.
STRAS, Circuit Judge, concurring.
Everyone misses things, even judges. Although I joined Muldrow v. City of
St. Louis, 30 F.4th 680 (8th Cir. 2022), I now have my doubts about whether it was
correctly decided. See South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2100 (2018)
(Thomas, J., concurring) (stating that “it is never too late ‘to surrende[r] former
views to a better[-]considered position’” (quoting McGrath v. Kristensen, 340 U.S.
162, 178 (1950) (Jackson, J., concurring))).
Muldrow applied a rule we adopted long ago: employees cannot sue under
Title VII without first suffering an “adverse employment action.” 30 F.4th at 688
(requiring the adverse action to be “material” (citation omitted)). I do not doubt that
this requirement makes sense: disagreements over minor “[c]hanges in duties or
working conditions” are probably best left to human-resources departments.
Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994). The
problem, however, is that those words do not appear in Title VII’s text, which asks
-4-
only whether the plaintiff was “discriminate[d] against . . . with respect to his
compensation, terms, conditions, or privileges of employment.” 42 U.S.C.
§ 2000e-2(a)(1). Both here and in Muldrow, the answer appears to be yes:
transferring an employee from a plum assignment with regular hours to a job with
worse hours and less-important responsibilities alters the “terms, conditions, or
privileges of employment,” whether or not it involves a change in rank or salary. Id.
Despite my reservations, however, I am still bound by Muldrow and the other
adverse-employment-action cases that came before it. So I concur in the court’s
opinion, which is a faithful application of precedent.
______________________________
-5-