Author: Paul Coppock

Arbitration clauses have become a common component of many types of contracts. When parties enter into a contract that contains such a clause, in effect, the parties are agreeing to submit any dispute that may arise between them to arbitration instead of the court system. The United States Court of Appeals for the Eighth Circuit’s opinion in Webb v. Farmers of North America, Inc., shows that parties may not have immediate recourse when they disagree on what such a clause means.

The Facts and the Lawsuit

The Plaintiff, James Webb, sued the Defendant, Farmers of North America, Inc., for an alleged breach of an employment contract. The employment contract contained an arbitration clause that stated that disputes are to be submitted to arbitration. On Farmer’s motion, a federal district court ordered that the parties must submit the employment dispute to arbitration in accordance with the employment contract.

The arbitration clause contained in the employment contract stated that arbitration was to be governed by the rules of the American Arbitration Association (AAA). According to Farmers, the reference to the AAA’s rules also meant that AAA was to be the arbitrator. Webb disagreed, and maintained that, while the AAA’s rules applied, the employment contract did not select who the arbitrator would be.
Webb then submitted the question to the district court for clarification. The district court agreed with Webb and ruled that if Farmers intended for disputes to be arbitrated by AAA then the employment contract should have said so. The district court ordered the parties “to work together to find a mutually acceptable arbitrator.

Farmers then filed an interlocutory appeal – that is, an appeal before the case is fully resolved in the district court–with the Eighth Circuit seeking to have the district court’s ruling overturned.

The Appeal

Rather than take up the merits of the dispute, the Eighth Circuit decided whether it had jurisdiction over the appeal. In support of jurisdiction, Farmers argued that (1) the district court’s order compelling arbitration was a final order that could be appealed to the Eighth Circuit, (2) that “the district court’s denial of Farmers’ petition to arbitrate pursuant to the parties’ agreement creates jurisdiction . . .”, and (3) the collateral order doctrine supplied the Eighth Circuit with jurisdiction. The Eighth Circuit rejected all three bases.

First, the Eighth Circuit ruled “that a ‘final decision with respect to an arbitration’ . . . is ‘a decision that ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment.’” According to the Eighth Circuit, the district court’s order compelling arbitration stayed the proceedings in federal court; it did not dismiss the case, and issues remained for the district court even after arbitration concluded. Therefore, the decision was not final and could not be appealed

Second, the Eighth Circuit rejected Farmers’ alternative argument that the “‘district court denied the petition to arbitration pursuant to the parties’ agreement, i.e., their agreed method of selecting an arbitrator.’” According to the Eighth Circuit, the district court did not deny a petition to arbitrate; in fact, it did the opposite and ordered that arbitration be conducted in accordance with AAA rules. The Eighth Circuit stated that it did not have jurisdiction over the interlocutory appeal in the absence of an order from the district court denying arbitration.

Finally, the Eighth Circuit stated that the collateral order doctrine did not confer jurisdiction. “The collateral order doctrine confers appellate jurisdiction to review interlocutory ‘decisions which finally determine claims of right separate from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate jurisdiction be deferred until the whole case is adjudicated.’” For the “narrow doctrine” to apply, among other things, Farmers had to show that the order of the district court was “‘effectively unreviewable on appeal from a final judgment.’” To be “effectively unreviewable,” it must be shown that the asserted right would be destroyed if the party asserting the right was forced to wait for a final resolution.

According to the Eighth Circuit, Farmers’ asserted right would not be destroyed if it were forced to arbitrate in the way ordered by the district court. “If Farmers is dissatisfied with the final result of arbitration and an order confirming that award by the district court, it would at that time have an appropriate remedy to seek review on appeal. . . .”

The Lesson

Agreeing to arbitration can be an effective and inexpensive way to resolve disputes quickly. As is shown by Webb v. Farmers of North America, Inc., however, simply referring to certain rules of arbitration is likely not effective to also select the arbitrator, and there may not be any immediate recourse. Therefore, the arbitration clause should be drafted to make the terms of arbitration clear in the first instance.

Getting to a jury in an employment discrimination case is often a three-step process. In this process, the burden of proof shifts between the plaintiff-employee and the defendant-employer. In Nelson v. USAble Mutual Insurance Co., the United States Court of Appeals for the Eighth Circuit focused primarily on the third step of the process, which requires a plaintiff to show that her employer’s actions were motivated by a discriminatory purpose.

The Facts

Corrie Nelson is an African-American woman who began working for Arkansas Blue Cross and Blue Shield (“ABCBS”) in May 2004. Nelson began her career at ABCBS as a Customer Service Representative. Through her years at ABCBS, Nelson was periodically promoted, and eventually became Market Service Representative, which required that she coordinate and conduct “all enrollment activity for new group customers.” Nelson also participated in an ABCBS program designed to help develop management skills. Before joining ABCBS, Nelson spent eleven years working in retail stores. Prior to that, Nelson earned a master’s degree in management.

In March 2014, the Customer Service Supervisor position became vacant at ABCBS. Anticipating the vacancy, ABCBS upgraded that position to “Manager of Operations for the Southeast region of Pine Bluff office.” The person hired for the position was to be “accountable for providing the overall operation of all functions in the region.” Requirements for the position included a college degree or related experience. In addition, two to four years of experience as a supervisor or manager was “desired.”

ABCBS’s regional executive for the Southeast region, Bryan Dorathy, interviewed three individuals for the position, including Nelson. The other two individuals were Caucasian. Dorathy asked the same questions in all three interviews and assigned scores based upon the interviews. Melissa Watkins scored the highest with 45. Nelson received the second-highest score with 42.5.

Watkins began working at ABCBS in March 2004, and like Nelson, began as a Customer Service Representative. After various promotions, in October 2013, Watkins became the Regional Financial Risk Manager Trainee for the Southeast region. Prior to her career at ABCBS, Watkins worked nearly three years at Alltell Communications as a Key Account Representative, which required assisting and advising customers on their wireless service. Before her employment at Alltell, Watkins earned a bachelor’s degree in business administration.

On May 27, 2014, Dorathy chose Watkins for the open position because “‘she scored the highest during the interviews’ and her ‘duties at Alltell’ were ‘extremely similar’ to what Dorathy ‘envisioned for the Pine Bluff location.’”

The Lawsuit

On April 12, 2016, Nelson sued ABCBS in federal court, alleging ABCBS committed racial discrimination by promoting Watkins over her. The federal district court eventually dismissed Nelson’s lawsuit. According to the district court, ABCBS had “articulated a legitimate, nondiscriminatory reason for selecting Watkins, and Nelson failed to demonstrate that the reason was pretext for discrimination.” Nelson then appealed to the United States Court of Appeals for the Eighth Circuit.

The Appeal

In the Eighth Circuit, a plaintiff must support a claim for race discrimination through either direct evidence of unlawful discrimination or indirect evidence that creates an inference of unlawful discrimination. If the plaintiff has only indirect evidence, she must satisfy the “McDonnel Douglas burden-shifting framework.”

Under that framework, the burden is initially placed on the plaintiff to prove: (1) she is a member of a protected class; (2) she is qualified for the position applied for; (3) she was denied the position applied for; and (4) the employer filled the position with a person not in the same protected class. The Eighth Circuit ruled that Nelson satisfied these four requirements.

Next, under McDonnel Douglas, the burden shifts to the employer to “‘articulate a legitimate, nondiscriminatory reason for not hiring’ the plaintiff.” According to the Eighth Circuit, ABCBS met its burden through the evidence that Watkins scored higher than Nelson in the interview and that Watkins’s “experience at Alltell was more directly relevant to the storefront concept that ABCBS wanted to develop at the Pine Bluff office.”

Finally, the burden returns to the plaintiff, whose burden it is to show that the reason offered by the employer was pretext for discrimination.” This may be achieved by, among other things, showing that the employer’s explanation is not worthy of credence because it is not based in fact or that an unlawful explanation more likely motivated the employer. According to the Eighth Circuit, Nelson failed to meet her burden.

First, the Eighth Circuit rejected Nelson’s argument that she was more qualified for the position than Watkins. The Eighth Circuit stated that “‘a comparative analysis of [their] qualifications’ gives us no ‘reason to disbelieve [ABCBS’s] proffered reason for its employment decision.’”

Second, the Eighth Circuit rejected Nelson’s argument that Dorathy preselected Watkins by reducing the minimum job requirements. Nelson argued that, unlike other Manager of Operations positions, the position in issue did not require a college degree or management experience. While the Eighth Circuit agreed that arbitrarily manipulating job requirements to the benefit of an applicant “‘may act to discredit the defendant’s proffered explanation[,]’” it held that Nelson presented only “conclusory allegations” that Dorathy had preselected Watkins.

Further, the Eighth Circuit held that Nelson failed to show that the reduced requirements did not accurately reflect the position’s responsibilities. The Eighth Circuit affirmed the district court’s dismissal of Nelson’s lawsuit.

The Lesson

In discrimination cases, alleging and proving the prima facie case is only the first step of reaching a jury. If the employer is able to point to a legitimate, nondiscriminatory basis for its action, the plaintiff then bears the additional burden of demonstrating that the employer is merely offering pretext meant to shroud unlawful discrimination. To do this, the plaintiff cannot simply offer unsupported arguments or allegations questioning the employer’s motives. Instead, the plaintiff must submit sufficient evidence demonstrating that the employer’s actions were driven by discriminatory animus.

When a plaintiff starts a lawsuit, he or she may wish to stop the defendant from performing some action during the lawsuit. In some instances, a court can grant the plaintiff’s wish in the form of a preliminary injunction. In the case of Management Registry, Inc. v. A.W. Companies, Inc., et al., the plaintiff sought to stop the defendant from actively recruiting plaintiff’s employees.

The Facts
Intending to expand its business, a company called Management Registry negotiated to acquire separate businesses owned by a company called AllStaff. Eventually, Management Registry agreed to purchase all businesses owned by AllStaff. AllStaff’s president, Allan Brown, further agreed to continue running the AllStaff businesses. Allan’s wife, Wendy, separately agreed to purchase one of AllStaff’s companies back from Management Registry.
Negotiations between Management Registry and Wendy eventually deteriorated, causing Allan to leave his position with Management Registry and form a rival company with Wendy. The company formed by Allan and Wendy, A.W. Companies (“A.W.”), began to recruit Management Registry employees. Further, it was alleged that A.W. asked the newly-recruited employees to bring computers, client files, and other proprietary information from Management Registry.

The Lawsuit
Management Registry sued A.W in federal court, seeking, among other things, a preliminary injunction preventing A.W. from recruiting Management Registry’s employees. The federal district court denied the preliminary injunction, holding that Management Registry had failed to demonstrate that it would be “irreparably harmed” without the preliminary injunction. Management Registry then appealed to the United States Court of Appeals for the Eighth Circuit, claiming both that it was likely to prevail in its lawsuit against A.W. and that it will be irreparably harmed if a preliminary injunction were not granted.

The Appeal
On appeal, the Eighth Circuit recited the four factors that courts are to consider when determining whether to grant a preliminary injunction: “(1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on [the nonmovant]; (3) the probability that [the] movant will succeed on the merits; and (4) the public interest.” Focusing on the first factor, the Eighth Circuit held that to receive a preliminary injunction, Management Registry had to establish “irreparable harm,” that is, “that it had ‘no adequate remedy at law’ because ‘its injuries [could not] be fully compensated through an award of [money] damages.’”

Affirming the district court, the Eighth Circuit held that the evidence presented by Management Registry actually proved no irreparable harm because money damages would fully compensate it for any losses caused by A.W. because such damages were quantifiable. Additionally, as to the third preliminary injunction factor, the Eighth Circuit stated that, rather than providing evidence demonstrating that it would prevail on the merits, Management Registry instead “devoted most of its memorandum accompanying its preliminary-injunction motion to chronicling the Browns’ alleged misdeeds[.]”

The Lesson
A preliminary injunction can be a powerful tool meant to maintain the status quo early in a case. The party seeking the preliminary injunction bears the burden of satisfying the Eighth Circuit’s four factors. As was most important in Management Registry, Inc. v. A.W. Companies, Inc., et al., to be awarded a preliminary injunction, the first factor requires a plaintiff to show that being awarded money at the end of the case will not adequately compensate for losses caused by the defendant. That is not always an easy task because, as this case demonstrates, if the losses are quantifiable, a court could hold that money will sufficiently compensate for them, and consequently, deny the motion for injunctive relief.

In order to reach a jury in an employment discrimination lawsuit, a plaintiff-employee bears the burden of producing direct evidence of a discriminatory basis for his termination or that the defendant-employer’s legitimate reason for terminating the plaintiff is not credible. In Engelhardt v. Qwest Corp., et al., the Eighth Circuit Court of Appeals ruled that the plaintiff failed to carry this burden.

The Facts

Walter Engelhardt began work as a St. Paul-based technician for CenturyLink in 2000. In 2007, Engelhardt joined 300 other employees in a class action lawsuit against CenturyLink, which ultimately settled. Then, in 2008, Engelhardt was terminated by CenturyLink due to low productivity.

In 2011, Engelhardt applied to be a technician for CenturyLink in St. Paul through MP Nextlevel, which was an agency that placed contractors with telecommunications companies. When Engelhardt’s former supervisor at CenturyLink, Chris Fry, was notified of Engelhardt’s potential placement, he expressed confusion to his superior, Tim Buchholz, about how a terminated employee could return as a contractor. Six days later, Buchholz released Engelhardt from the assignment, citing that Engelhardt had been placed on CenturyLink’s “Do Not Rehire” list.

About a month later, Engelhardt contacted Buchholz and threatened suit for retaliation because Engelhardt believed he was released based upon his involvement in the class action. Subsequently, Engelhardt was informed that he had been cleared to work as a contractor. Engelhardt never actually began work as a contractor, however, due to CenturyLink terminating all of its contractors based upon a “seasonal slow down[.]”

In 2015, after moving to North Dakota, Engelhardt was encouraged by a friend to apply for a technician position at CenturyLink. Engelhardt then contacted former associates at both CenturyLink and MP. Engelhardt was then informed that there was nothing in his file impeding his return to CenturyLink and that he was welcome to come back. That summer, MP rehired Engelhardt and he was assigned to work as a contractor for CenturyLink.

About a week into Engelhardt’s assignment, Fry was contacted by Brian Burth, who was complaining about Engelhardt’s low productivity. Burth had been hired in June 2015 to monitor contractor performance. Fry then sent Burth’s email to Buchholz. About a half hour after Fry sent the email, Buchholz replied by stating that Engelhardt should be sent home.

Engelhardt later sued CenturyLink in federal court, alleging, among other things, a violation of the Fair Labor Standards Act (FLSA). According Engelhardt, he was terminated by CenturyLink as retaliation for his involvement in the class action and for his threatened lawsuit in 2011. In response, CenturyLink stated that Engelhardt was terminated based upon his low productivity. The federal district court then dismissed Engelhardt’s lawsuit, ruling that CenturyLink had provided evidence of a legitimate, non-discriminatory reason for Engelhardt’s termination, and that Engelhardt had failed to demonstrate that CenturyLink’s reason was unworthy of credence.

The Appeal

Engelhardt appealed the dismissal of his case to the United States Court of Appeals for the Eighth Circuit. On appeal, Engelhardt argued that issues of fact remained for a jury to decide as to CenturyLink’s motivation for firing Engelhardt. According to the Eighth Circuit, to prevail on a retaliation claim under the FLSA, it is a plaintiff’s burden to demonstrate that the reason offered by the employer to support the termination is not credible and is merely a pretext to terminate. Affirming the district court, the Eighth Circuit stated that Engelhardt failed to carry his burden.

First, Engelhardt claimed that Buchholz harbored a grudge against him due to Engelhardt’s participation in the 2007 class action and Engelhardt threatening to sue for retaliation in 2011. Engelhardt, however, was unable to cite to any evidence to support the claim. According to the Eighth Circuit, all the evidence showed was that Engelhardt was cleared to return in 2011, but was unable to do so after CenturyLink terminated its entire contractor work force due to the seasonal slow down.

Second, Engelhardt claimed that Buchholz’s grudge was shown by Buchholz firing Engelhardt in 2015 after only a week into Engelhardt’s assignment. Unpersuaded, the Eighth Circuit stated that the evidence showed that Buchholz had terminated other contractors only two-weeks into their assignments and the circumstances of Engelhardt’s firing were not so unusual to demonstrate CenturyLink’s discriminatory motive. Moreover, Engelhardt failed to refute Buchholz’s claim that Buchholz did not recognize Engelhardt’s name in 2015 when Buchholz determined to fire Engelhardt.

The Eighth Circuit concluded by stating that the record did not support Engelhardt’s “grudge theory.” Instead, all that was supported was CenturyLink’s claim that Engelhardt was terminated due to his low productivity. “Burth, Fry and Buchholz all cited Engelhardt’s productivity as the primary reason for his termination. Burth’s initial e-mail to Fry included a breakdown of Buchholz’s completed jobs, indicating that Engelhardt was falling far short of the expected five to six jobs per day.”

The Lesson

The Eighth Circuit reaffirmed the proposition that a plaintiff’s mere suspicion or hunch that he or she was subject to unlawful employment discrimination will not carry the day. Instead, a plaintiff must point to concrete evidence tending to show that the employer harbored discriminatory animus toward the plaintiff. Such evidence could be in the form of bad acts or statements by the employer directed at the plaintiff or evidence that other similarly-situated employees were treated more favorably. Engelhardt failed to present any such evidence.

When deciding whether to file a lawsuit, it is imperative that it is filed against the appropriate party. Simply because a wrong is arguably attributable to a specific person or entity does not mean that is the appropriate person or entity to sue. As the Eighth Circuit recently held in Vandewarker v. Continental Resources, Inc., for the lawsuit to stand, the defendant must be found to have owed the plaintiff some type of benefit.

The Facts
Benjamin Vandewarker was employed by Great Western Resources. Continental Resources, Inc., hired Great Western as an independent contractor. As an independent contractor of Continental, Great Western was to measure wastewater levels in Continental’s holding tanks at Continental’s well sites in North Dakota. As an employee of Great Western, Vandewarker was to measure the wastewater levels and the haul wastewater from the holding tanks. To access the holding tanks, Vandewarker had to climb a metal staircase running alongside the tank. On one such occasion, Vandewarker fell 10-15 feet off one of the staircases. The fall was caused by a loose bolt on the staircase, which in turn, caused the staircase to disconnect.

The Lawsuit
Vandewarker filed suit against Continental in federal court for negligence, gross negligence, and intentional infliction of emotional distress. Vandewarker claimed that Continental failed to properly inspect and maintain the staircase and failed to provide Vandewarker with a safe work environment. During his deposition, Vandewarker claimed that Continental knew the staircase was faulty because Vandewarker had informed it of the fact two days before his fall.
Continental did not dispute Vandewarker’s claim that it had notice of the faulty staircase. Continental, however, sought to dismiss Vandewarker’s lawsuit, claiming that it did not owe Vandewarker any duty to make its premises safe. According to Continental, because Vandewarker was an employee of Great Western, which was an independent contractor of Continental, Continental did not have the right to exercise any control over the work Vandewarker performed and, therefore, a duty did not extend from Continental to Vandewarker. The federal district agreed and dismissed Vandewarker’s case.

The Appeal
Vandewarker appealed to the United States Eighth Circuit Court of Appeals. On appeal, the Eighth Circuit held that to hold a defendant liable for negligence, the defendant must owe the plaintiff a duty to protect the plaintiff from injury. An employer may owe an independent contractor such a duty under “an express contractual provision giving the employer the right to control the operative details of the independent contractor’s work, or by the employer’s actual exercise of retained control of the work.” Vandewarker claimed that a duty arose as to Continental on either ground.

The Eighth Circuit disagreed. As to the express contractual provision, the contract between Great Western and Continental actually placed the burden of safety on Great Western, not Continental. As to whether Continental actively controlled and supervised Vandewarker’s work, the Eighth Circuit stated that “‘merely providing equipment [to the employee of one’s independent contractor] is not the kind of control that creates a duty.’” Instead, it must be shown that the employer directly supervised or controlled the equipment’s use or instructed the independent contractor on the equipment’s use. According to the Eighth Circuit, Vandewarker failed to put forth any evidence that Continental directly supervised his work or instructed him how to use the equipment. Accordingly, the Eighth Circuit affirmed the district court’s dismissal of Vandewarker’s case.

The Lesson
A worker conducting business that benefits a party does not necessarily mean that the worker may hold that party liable if the work goes awry. Generally, the worker must instead determine whose responsibility it was to either supervise the worker or make the work environment safe. This is often the case when the worker is an independent contractor.

When it comes to litigation, everything must be properly supported. What document supports what fact? Who can testify to what occurrence? The South Dakota Supreme Court recently made one thing clearer in Cooper v. Brownell: you are not an expert about yourself.

The Facts
In 2009, three individuals, Robert Cooper, Andrew Brownell, and Jason Utecht, were involved in a three-car accident. A vehicle driven by Utecht collided with a vehicle driven by Brownell, which caused Brownell’s vehicle to collide with the front bumper of Cooper’s vehicle. At the time of the accident, Cooper was stopped at an intersection. As a result of the accident, Cooper claimed that he hit his head on the driver’s side door, knocking him unconscious. Cooper was then transferred to a hospital by ambulance.

The Lawsuit
In 2012, Cooper sued both Brownell and Utecht, claiming that he sustained injuries as a result of the 2009 accident. Through the lawsuit, Cooper sought money damages related both to his medical bills and his past and future pain and suffering.
Prior to trial, Brownell and Utecht sought to dismissal of Cooper’s lawsuit because he failed to identify any expert witnesses who could offer a link between the 2009 accident and Cooper’s injuries. In response, Cooper claimed that his medical records and his own testimony about his injuries were enough to present to the jury. In addition, according to Cooper, his treating physicians could testify to the treatment he received and that such treatment was due to the 2009 accident. Cooper, however, failed to present any testimony, affidavits, or reports from his treating physicians or other medical providers that could support the link between the accident and Cooper’s injuries. The court sided with Brownell and Utecht, and dismissed Cooper’s case.

The Appeal
Cooper appealed, claimed among other things that the trial court erred by concluding that expert testimony was necessary to prove the 2009 accident proximately caused his injuries. According to the South Dakota Supreme Court, “proximate cause cannot be ‘based on mere speculative possibilities or circumstances and conditions remotely connected to the events leading up to an injury.’” As to Cooper’s case, the Court held, “the causal relationship between this accident and Cooper’s claimed injuries cannot be determined by a jury absent expert testimony.”

According to the Supreme Court, Cooper sought recovery for claimed injuries to his neck, head, back, right foot, right ankle, right hip, both shoulders, and both knees. However, evidence in the record also showed that prior to the 2009 accident, Cooper suffered injuries to his feet, head, neck, knees, shoulder, and spine. By failing to at least submit affidavits or deposition testimony from his treating physicians linking his injuries to the 2009 accident, Cooper could not carry his burden of proving causation. Because his injuries were not plainly observable and the obvious result of the accident, Cooper’s own testimony about his injuries was not enough. Therefore, the Supreme Court affirmed the dismissal of Cooper’s lawsuit.

The Lesson
Accidents occur every day, and they can cause many injuries at once. What injuries are actually caused by an accident, however, is not always obvious, and the injured person claiming that an injury occurred because of a specific event is not always enough to get to a jury. As is often the case, physicians or other experts must be called on to explain to a jury how and why an injury was caused.

Jeanette McKee was a chief deputy clerk for the Circuit Court of Jefferson County, Missouri. In 2014, she ran as a candidate to replace the outgoing clerk of court. Her opponent in the race, Michael Reuter, was ultimately elected. During the campaign, McKee commented on an incident of domestic violence involving Reuter.

On Reuter’s first day on the job, he instructed McKee to move from her semi-private work desk to a cubicle immediately in front of his office. From there, Reuter began assigning McKee menial work and excluding McKee from meetings. By Reuter’s third day, he demoted McKee and replaced her with a much less qualified individual, Christy Scrivner. Eventually, Reuter issued McKee a notice for corrective action, which was ultimately withdrawn, but only after McKee contested the notice and it was recommended to Reuter that he withdraw it.

After an incident involving gossip among employees, Reuter terminated McKee’s employment. McKee was escorted from the building, and Scrivner wrote the word “karma” on a bulletin board outside of her office. McKee appealed her termination and was eventually reinstated. Upon her return, however, she was assigned to traffic duty, which required a skillset far below McKee’s capabilities. McKee resigned from the position in or around June 2015.

A co-worker of McKee, Sharon Hickman, who had supported McKee during the clerk of court election campaign, was also transferred to the traffic division. Prior to the transfer, Hickman had been stationed in a separate division for four years, and had never received a negative performance evaluation in that position. In her position in the traffic division, Hickman was trained by Teresa Cusick, who had many years experience, but who consistently provided Hickman with conflicting instructions. At one point, Cusick told Hickman that she was “stupid,” that Hickman had a “mental handicap,” and that Hickman “would never learn the job.” Hickman complained of the work environment to Reuter, but Reuter failed to act. Instead, Reuter instituted monthly performance evaluations wherein Hickman was consistently negatively appraised by Cusick.

Hickman was terminated in October 2015. She was eventually reinstated after an appeal. After returning to work, Hickman underwent surgery and requested to be restricted to light duty. Reuter did not respond to the request. Hickman eventually suffered a nervous breakdown. She was granted an extended unpaid leave, which required that she fax in a handwritten request. Scrivner confirmed that she received the request. By October 5, 2016, however, Scrivner told Hickman that the request was not dated and if Hickman did not return to work the next day she would be terminated. Hickman then resigned.

McKee and Hickman both sued Reuter and Scrivner in federal court, alleging that they suffered adverse employment action at the hands of Reuter and Scrivner based upon political party affiliation. At the trial court level, Reuter and Scrivner argued that they were immune from suit as public employees of the State of Missouri. The trial court, however, rejected the claims for immunity on Hickman’s claim against Reuter and McKee’s claims against Reuter and Scrivner. According to the trial court, Reuter and Scrivner were not entitled to immunity because the law governing McKee’s and Hickman’s claims was clearly established and the facts supported McKee’s and Hickman’s constitutional violation claims. Reuther and Scrivner appealed to the United States Eighth Circuit Court of Appeals.

Agreeing with the trial court, the Eighth Circuit stated that a public employee is not entitled to qualified immunity when “‘the facts taken in the light most favorable to [the plaintiffs] make out a violation of a constitutional or statutory right; and’ . . . that right was clearly established at the time of the alleged violation.’” According to the Eighth Circuit, at the time of McKee’s and Hickman’s employment, it was clearly established that the First Amendment protects “political patronage.” Thus, an employee may not be terminated based upon his or her political affiliation. The only exception to the rule being that if “the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved[,]” then party affiliation may be used as a basis for termination.

In McKee’s and Hickman’s cases, however, there had been no showing that a particular party affiliation was a requirement to effectively perform the job. And while the Eighth Circuit agreed that there is no clear First Amendment right to run for office, McKee’s claim was “predicated upon her affiliation . . ., the expression of her political views, and the activities she undertook . . . during a partisan campaign, which fall squarely within the protections of the First Amendment.” Finally, because McKee came forward with sufficient evidence demonstrating that her termination was driven by political animus, Reuter and Scrivner were not immune from suit and McKee’s case proceeded to trial.

As for Hickman’s claim against Reuter, the Eighth Circuit recognized that she was only transferred from her previous position of four years after a person of the opposite political party was elected clerk of court. In the face of repeated requests for transfer from Hickman, and after other employees were allowed to transfer from one division to another, Reuter instructed Hickman to quit and he otherwise ignored her requests. Accordingly, Hickman’s suit against Reuter was allowed to proceed to trial.

This case demonstrates the uncontroversial proposition that employees cannot be terminated based on political affiliation. Indeed, the First Amendment protects a broad swath of speech, including political speech. While employers may terminate employees for a variety of reasons, it cannot be based purely on political expression. As the Eighth Circuit expressed, however, the issue becomes murkier when the employee is not merely expressing a political viewpoint, but, instead, running for public office. The First Amendment has not been interpreted as protecting an individual’s right to seek public office; it has been interpreted as protecting an individual’s right to comment on the office and the individual holding the office.