                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-2774
                                    ___________

David Hughes,                             *
                                          *
             Plaintiff - Appellant,       *
                                          *
       v.                                 *
                                          * Appeal from the United States
Roger D. Stottlemyre, Colonel, in his     * District Court for the Western
official capacity; James P. Ripley, as an * District of Missouri.
individual and in his official capacity; *
Eric Wilhoit, as an individual and in     *
official capacity; Vincent Ellis,         *
                                          *
             Defendants - Appellees.      *
                                    ___________

                              Submitted: January 13, 2006
                                 Filed: July 19, 2006
                                  ___________

Before BYE, HEANEY, and COLLOTON, Circuit Judges.
                           ___________

BYE, Circuit Judge.

       David Hughes was a sergeant with the Missouri State Highway Patrol (Patrol)
until May 2004, when he was demoted by Colonel Roger D. Stottlemyre to trooper
and transferred to the Patrol's Gaming Division. Hughes brought a 42 U.S.C. § 1983
action, naming his immediate supervisors, Captain Vincent Ellis and Lieutenant James
Ripley, as well as Eric Wilhoit, an investigator in the Patrol's Professional Standards
Division. Hughes claims Ellis, Ripley and Wilhoit violated his First Amendment free
speech rights by retaliating against him for opposing proposed changes in Patrol
policy. Hughes named Stottlemyre in his official capacity as Patrol Superintendent
but does not contend he personally retaliated against him.

       The district court dismissed Hughes's claims finding he failed to present any
evidence tending to discredit the legitimate non-retaliatory reasons offered for his
demotion and transfer. On appeal, Hughes contends the district court applied the
wrong test in evaluating his retaliation claim, and granted summary judgment on a
basis not asserted by defendants. We affirm in part, reverse in part, and remand.

                                           I

        The facts, viewed in the light most favorable to Hughes, Dush v. Appleton Elec.
Co., 124 F.3d 957, 962-63 (8th Cir. 1997) (summary judgment standard), are as
follows. In 2003, Hughes was a Zone Sergeant assigned to Bates County, Missouri.
His direct supervisor was Lieutenant Ripley who served in a supervisory role in Bates
County and Cass County, Missouri. Bates County and Cass County are located within
the boundaries of the Patrol's Troop A, which was commanded by Captain Ellis. In
June 2003, Hughes was told the Patrol was considering consolidating Bates and Cass
counties. Hughes attended a meeting with Ellis and Ripley to discuss the proposed
consolidation and expressed disagreement. To support his position, Hughes gathered
statistics and other information tending to show the change would increase trooper
response time and adversely impact public safety. As an alternative, Hughes
suggested one trooper from Bates County be reassigned to Cass County to relieve its
personnel problems. Ellis and Ripley favored consolidation, and Ripley voiced
dissatisfaction with Hughes's alternative plan. Following the meeting, Ellis chose to
delay consolidation and temporarily adopted Hughes's suggestion.1 Following the



      1
       In October 2003, the consolidation plan was adopted over Hughes's objections.

                                         -2-
meeting, Ripley was visibly angry at Hughes, and it is at this point, according to
Hughes, Ellis and Ripley began a campaign of retaliation.

       Hughes alleges in the months following the meeting, Ripley repeatedly
summoned him to Ripley's office approximately forty-five miles away. Prior to the
meeting, Hughes had been called to Ripley's office on only one occasion.
Additionally, within a month of the meeting Hughes received two verbal reprimands.
One for arriving at work too early and a second for using sick leave while his father
was dying of cancer. During this same time, Hughes alleges Ripley told him he
disliked him.

       Hughes further alleges Ripley and Ellis retaliated by giving him a performance
evaluation decidedly more negative than those he had received for the preceding two
years. In 2001, his performance was ranked between "Meets Expectations" and
"Excels" in all categories, and the comments section contained primarily positive
comments. In 2002, his performance was again ranked between "Meets Expectations"
and "Excels," but the comments section carried some negative comments, including:
"Sergeant Hughes has become almost consumed with the notion that he is going to be
transferred to another division of the patrol." In 2003, after the consolidation plan was
adopted, Hughes's performance evaluation indicated he "Meets Expectations" or
"Excels," but carried additional negative comments directed at specific instances of
conduct. Among other comments, the evaluation stated: "If Sergeant Hughes does not
heed the suggestions he has been given the troop staff will have to give serious
consideration to his ability to be able to function in a supervisory role." Hughes
appealed the 2003 evaluation to Ellis, who rejected the appeal and advised him to
improve his job performance.

       Next, Hughes contends a policy instituted by Ripley to have subordinates
evaluate their sergeants was retaliatory because Ripley discounted negative comments
directed at other sergeants, while relying on those directed at him.

                                          -3-
       Hughes also contends four disciplinary complaints initiated in 2004 were
brought in retaliation for his criticism of the consolidation plan. The first involved an
incident on December 13, 2003, when a trooper under Hughes's supervision shot
across a Missouri highway to kill a coyote and trespassed on private land to retrieve
it. The complaint, initiated by Corporal Kevin Fisher who was under Hughes's
supervision, alleged Hughes told him to report the incident to Ripley but not to
volunteer any details. Additionally, the complaint alleged Hughes advised the trooper
not to talk with investigators without having a lawyer present.

       The second complaint, alleged Hughes ordered an on-duty trooper to transport
his children to and from school on various occasions between 2001 and 2003. The
complaint further alleged Hughes had from time to time used his patrol car to
transport his children to and from school. No complaint was leveled at the trooper
who transported Hughes's children.

       The third complaint, alleged Hughes, at the behest of state senator Harold
Caskey, ordered one of his troopers to retrieve license plates from a private vehicle
being held at an impound lot. The owner of the lot had not been paid for the towing
or storage charges and complained to Hughes. When interviewed by the investigator,
the owner stated Hughes was rude and told him not to "mess with Senator Caskey."2

      Finally, the fourth complaint involved an incident on March 22, 2004, when
Hughes entered Fisher's residence to retrieve the keys to Fisher's patrol vehicle.
Hughes's patrol vehicle had been damaged in a collision with a deer en route to a
serious traffic accident and he needed a substitute. Fisher was off duty and his patrol
vehicle was parked at his home only a few miles away. Hughes drove to Fisher's
home, and, when he discovered Fisher was not there, entered the locked home using

      2
        Senator Caskey is an attorney and represented Hughes in connection with the
first two complaints filed against him. After the third complaint was filed, Hughes
was ordered to have no further contact with Caskey.

                                          -4-
the keypad access code and located the vehicle keys. Fisher admitted giving Hughes
the access code to his home on a previous occasion but indicated he had not otherwise
given Hughes permission to enter his home.

       Each of these complaints was initiated based on information provided by Fisher
but was signed by either Ripley or Ellis because Patrol rules do not permit a
subordinate to sign a complaint involving a superior. Each of the instances of alleged
misconduct was investigated by Wilhoit in his role as an investigator with the
Professional Standards Division of the Patrol. In each instance, Wilhoit interviewed
Hughes who admitted much of the factual basis underlying each complaint.
Nevertheless, Hughes contends Ripley and Ellis used the complaints as an opportunity
to retaliate against him, and enlisted the aid of Wilhoit to further their plan.

       As further evidence of retaliation, Hughes alleges in September 2003, Ripley
solicited one of Hughes's subordinates for negative information about Hughes, and
told Hughes if there was any way to reassign him he would. In March 2004, Hughes
alleges Ripley approached another patrol member about accepting a promotion to
Bates County and replacing Hughes as Zone Sergeant. In April 2004, Ripley removed
Hughes from the state fair detail; a position Hughes had held for twelve years.

       Finally, Hughes alleges he was retaliated against when he was 1) refused a
position as a narcotics officer, 2) required to work more Wednesdays and Sundays,
and 3) docked 3.5 hours compensatory time for attending a training session out of
uniform.

       On March 25, 2004, Hughes filed this action against Stottlemyre, Ripley and
Wilhoit, alleging these actions constituted adverse employment actions taken in
response to his opposition to the consolidation plan. In early May 2004, Stottlemyre
convened a staff meeting, which included a Lieutenant Colonel, five majors, Wilhoit,
Ellis and Ripley, to determine whether any disciplinary action should be taken in

                                         -5-
response to the complaints. Wilhoit and Ripley were not asked to make a
recommendation as to discipline. Ellis and all but one of the remaining officers in
attendance recommended termination. Stottlemyre initially agreed, but reconsidered
and chose to demote Hughes and transfer him to the Gaming Division. Ellis
complained to Stottlemyre that Hughes should be terminated and insisted he be
prohibited from returning to Troop A. On May 11, 2004, Hughes filed an amended
complaint adding Ellis as a defendant, and alleging the four complaints which caused
his demotion and transfer were punishment for his exercise of protected speech.

       The defendants moved for summary judgment arguing Hughes failed to make
out a prima facie case of retaliation. As to the four complaints which Hughes alleges
led to his demotion and transfer, the district court assumed Hughes had made a prima
facie showing of retaliation against Ellis, Ripley and Wilhoit. The court concluded,
however, Hughes failed to show that the legitimate non-retaliatory reason given by
Stottlemyre for his demotion and transfer, i.e., the complaints, was pretextual. As to
the other alleged adverse employment actions, the district court concluded Hughes
failed to make a prima facie showing. On appeal, Hughes argues the district court 1)
applied the wrong test for determining whether he had made a prima facie showing
of retaliation, and 2) erred in reaching the issue of pretext because the defendants only
argued he failed in his prima facie showing.

                                           II

     We review the district court's grant of summary judgment de novo. Spears v.
Mo. Dep’t of Corr. & Human Res., 210 F.3d 850, 853 (8th Cir. 2000). "Summary
judgment is proper where the evidence, when viewed in the light most favorable to the
nonmoving party, indicates that no genuine issue of material fact exists and that the
moving party is entitled to judgment as a matter of law." Id.




                                          -6-
A.    Prima Facie Case

       To establish a prima facie case of retaliation based on the First Amendment, a
plaintiff must allege and prove he engaged in conduct protected by the First
Amendment and the protected conduct was a substantial or motivating factor in the
employer's decision to take the adverse employment action. Mt. Healthy City Sch.
Dist. v. Doyle, 429 U.S. 274, 287 (1977); Okruhlik v. Univ. of Ark., 395 F.3d 872,
878 (8th Cir. 2005) (noting the same test applies to both First Amendment and Title
VII retaliation cases). If the employee makes a successful prima facie showing, the
burden shifts to the employer to demonstrate the same action would have been taken
even in the absence of the protected conduct. Mt. Healthy, 429 U.S. at 287. This is
the test the district court applied. Accordingly, we reject Hughes's claim the district
court applied the wrong standard.

      1.     Protected Activity

      The district court concluded Hughes's opposition to the consolidation plan was
protected activity because he expressed concerns over the impact to public safety. On
appeal, defendants do not contest the district court's holding. Thus, we assume,
without deciding, that Hughes's stated opposition to the consolidation plan was
protected under the First Amendment.

      2.     Adverse Employment Action

       To constitute an adverse employment action, the employer's decision must
effect a material change in the terms or conditions of employment. Bechtel v. City of
Belton, 250 F.3d 1157, 1162 (8th Cir. 2001). Hughes alleges his 2003 performance
evaluation constitutes an adverse employment action. The district court rejected the
contention because Hughes failed to present any evidence showing it resulted in any

                                         -7-
material change to the terms or conditions of his employment. We agree. Hughes has
presented no evidence tending to show the evaluation was relied upon to effect any
material change in the terms or conditions of his employment. See Spears, 210 F.3d
at 854 (holding a negative performance review is not in itself an adverse employment
action, and is actionable only if the employer subsequently uses the review to alter the
terms or conditions of employment to the detriment of the employee.) Therefore, we
conclude the 2003 performance review does not constitute an adverse employment
action.

       The district court also concluded Hughes's complaints about working Sundays
and Wednesdays, and the policy requiring troopers to review their sergeants, did not
constitute adverse employment actions because Hughes failed to allege any impact on
the terms or conditions of his employment. Hughes does not respond directly to the
district court's findings. Instead, he agues we should view his allegations
cumulatively and find in sum they are sufficient to allege an adverse employment
action. We disagree.

       Although actions short of termination may constitute adverse employment
actions within the meaning of the statute, "not everything that makes an employee
unhappy is an actionable adverse action." Montandon v. Farmland Indus., Inc., 116
F.3d 355, 359 (8th Cir. 1997). We have held a reasonable jury could conclude
negative references to potential employers constitutes sufficient adverse action to state
a retaliation claim. Smith v. St. Louis Univ., 109 F.3d 1261, 1266 (8th Cir. 1997).
Conversely, we have also held the loss of status and prestige that accompanied
replacement of a supervisor's staff, when her salary and position remained the same,
did not constitute a sufficient adverse employment action. Ledergerber v. Stangler,
122 F.3d 1142 (8th Cir. 1997). In other words, "[c]hanges in duties or working
conditions that cause no materially significant disadvantage . . . are insufficient to
establish the adverse conduct required to make a prima facie case." Harlston v.
McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir.1994). Here, there is no

                                          -8-
evidence to suggest Hughes suffered a materially significant disadvantage by having
to work more Sundays and Wednesdays or by having his performance reviewed by
his subordinates. Therefore, we affirm the district court's holdings on these issues.

       The district court concluded the remaining allegations, i.e., the four complaints
and resulting investigations; loss of compensatory time; and failure to transfer Hughes
to narcotics; were sufficient to allege adverse employment actions. On appeal,
defendants do not contend these allegations are insufficient to satisfy the adverse
employment action prong of Hughes's prima facie case. Thus, we assume, without
deciding, that Hughes suffered an adverse employment action.

      3.     Causation

        The third and final element of Hughes's prima facie case is causation. To
prove a causal connection under the third element, a plaintiff must prove an
employer's retaliatory motive played a part in the adverse employment action. Kipp
v. Mo. Highway & Transp. Comm'n, 280 F.3d 893, 896-97 (8th Cir. 2002).
"[E]vidence that gives rise to an inference of a retaliatory motive on the part of the
employer is sufficient to prove a causal connection." Id. at 897 (internal quotation
marks omitted).

       The district court concluded Hughes failed to make any showing of causation
with respect to the loss of compensatory time because he presented no evidence of a
Patrol policy allowing him to attend the training session out of uniform, and admitted
he had no proof another trooper was not docked pay for attending out of uniform. As
for the Patrol's failure to transfer him to narcotics, the district court noted Hughes
failed to identify any of the persons involved in the decision making process and
failed to offer any evidence showing the failure to transfer him was in any way related
to his exercise of protected speech. On appeal, Hughes fails to address these issues.



                                          -9-
Because Hughes offers no proof these employment actions were causally related to
his speech, we affirm the district court's holdings.

       As for the four complaints and investigations, the district court assumed for
purposes of summary judgment Hughes had shown causation because they led to his
demotion and transfer. Defendants argue the district court erred because there was
insufficient evidence as to any of the defendants to show that pursuit of the four
complaints and investigations was causally related to his exercise of protected speech.

             a.    Stottlemyre

       Stottlemyre contends there is no evidence he was aware Hughes had spoken out
against the consolidation plan, and therefore, there can be no inference of a causal
connection between Hughes's speech and Stottlemyre's decision to demote and
transfer him. Hughes, citing, among other cases, Darnell v. Ford, 903 F.2d 556, 561-
62 (8th Cir. 1990), argues Stottlemyre was only sued in his official capacity as a
representative of the Patrol and the Patrol can be held liable regardless of Stottlemyre's
personal knowledge of Hughes's exercise of protected speech. We disagree.

       "[I]t is well settled that § 1983 does not impose respondeat superior liability."
Crawford v. Davis, 109 F.3d 1281, 1284 (8th Cir. 1997) (citing Monell v. Dep't of
Soc. Servs. 436 U.S. 658, 691 (1978)), and nothing in the cases cited by Hughes
changes this longstanding rule. For example, in Ford, a Missouri Highway Patrol
Major (Ford) recommended Captain William Darnell be disciplined for failing to
report misconduct by another patrol member. 903 F.2d at 557. Darnell sued, arguing
Ford recommended discipline because Darnell opposed Ford's candidacy for patrol
superintendent. Id. A jury found in favor of Darnell and awarded substantial
damages. Id. On appeal, Ford argued the jury erred in finding causation because his
recommendation was not directly responsible for Darnell's discipline. Id. at 561.
Instead, the decision rested with the patrol superintendent. Id. at 561-62. This court

                                          -10-
rejected Ford's argument, stating "causation can be established by direct personal
participation in the deprivation or by participation setting in motion a series of acts by
others which the actor knows or reasonably should know would cause others to inflict
constitutional injuries on third parties." Id. at 562 (citing Johnson v. Duffy, 588 F.2d
740, 743 (9th Cir. 1978)). Ford may be useful to Hughes in arguing his claims against
Ellis, Ripley and Wilhoit, but it lends no support to his claim against Stottlemyre. We
find the remaining cases cited by Hughes equally inapposite
.
              b. Ellis/Ripley/Wilhoit

       Hughes alleges Ellis and Ripley strongly favored the proposed consolidation
plan, but when Hughes questioned its impact on public safety they were forced to
reconsider the plan. Following the June 2003 meeting, Hughes alleges Ripley was
visibly angry, and, when Hughes spoke with him several months later, Ripley
continued to voice dismay at Hughes's opposition to the plan. Because of his
unwillingness to accede to the plan, Hughes contends Ellis and Ripley began the
campaign of retaliation outlined above, including their pursuit of the four complaints
and investigations which led to his demotion and transfer.

      Ellis and Ripley contend they played no part in initiating the complaints.
Instead, their only role was to – in accordance with Patrol policy – sign the complaints
which were initiated by Corporal Fisher. According to Ellis and Ripley, because the
complaints were initiated by Fisher and investigated by Wilhoit, Hughes cannot show
they set into motion the series of events which led to his demotion and transfer. As
evidence, they point to a statement by Wilhoit indicating he discovered the
information leading to the second and third complaints during an interview with
Fisher conducted in connection with the first complaint.

     Hughes disputes Wilhoit's version of those events, and offers a transcript of
Wilhoit's interview of Fisher which contains no reference to the incidents involved in

                                          -11-
the second and third complaints. He also disputes the usefulness of an affidavit
prepared by Fisher which indicates Fisher was the source of the second and third
complaints because it does not indicate to whom he reported the incidents.

       Hughes also alleges the third complaint – involving Senator Caskey who had
represented him in the first two complaints – was initiated to prevent Caskey from
continuing to serve as legal counsel. As evidence the third complaint was fueled by
an improper motive, Hughes states Caskey told him the Missouri Department of
Revenue (MDOR) informed Caskey the license plates were the property of the state
and could be seized by the Patrol. According to Hughes, he provided this information
to Wilhoit during the investigation, but Wilhoit refused to contact Caskey or MDOR.
Additionally, Wilhoit did not include this information in his report or inform
Stottlemyre. Finally, Hughes alleges Wilhoit made unsubstantiated accusations of
public corruption against Caskey, and, in an attempt to determine if Hughes had
contacted Caskey, tried unsuccessfully to obtain Hughes's cellular telephone records
without a subpoena or proper authorization.

       Viewing all of the alleged actions in the light most favorable to Hughes, we are
satisfied there is evidence suggesting a retaliatory motive on the part of Ellis, Ripley
and Wilhoit, sufficient to prove a causal connection. Moreover, we reject the
defendants' argument under Ford that any alleged wrongdoing did not cause or
contribute to Hughes's demotion and transfer.

       In Ford, Ford recommended Darnell be disciplined for his violation of patrol
policy. Id. at 557. Later, Ford argued his recommendation did not cause Darnell's
discipline because the final decision was made by the patrol's superintendent. Id. at
561-62. This court disagreed, finding ample evidence in the record to demonstrate the
patrol's superintendent always followed recommendations for discipline. Id. at 562.
Therefore, but for Ford's recommendation, Darnell would not have been disciplined.



                                         -12-
       Here, there is no evidence Hughes would have been demoted and transferred
but for the four complaints. Assuming those complaints were initiated and pursued
for retaliatory purposes, it is apparent Ellis, Ripley and Wilhoit "set[] in motion a
series of acts by others which [they] knew or reasonably should know would cause
others to inflict constitutional injuries on third parties." Id. (citing Johnson v. Duffy,
588 F.2d at 743). Accordingly, as to Ellis, Ripley and Wilhoit, we find Hughes has
made out a prima facie showing of retaliation in violation of his First Amendment
rights. As to Stottlemyre, we conclude Hughes has failed in his prima facie showing
and affirm the district court's grant of summary judgment.

B.    Legitimate Non-retaliatory Reason/Evidence of Pretext

       The district court found the Patrol had advanced a legitimate non-retaliatory
reason for demoting and transferring Hughes because he admitted most of the
underlying facts. It further concluded Hughes had presented no evidence suggesting
the Patrol's reasons were a pretext for unlawful retaliation. On appeal, Hughes argues
the district court's reasoning went beyond the arguments advanced by defendants in
their summary judgment motion. Hughes contends the defendants only argued against
his prima facie showing of retaliation and never discussed any legitimate non-
discriminatory reasons for their actions. Accordingly, he contends the district court
should have limited its analysis to the issues raised in the summary judgment motion
to which he was given an opportunity to respond. Defendants concede they did not
raise the issue in their motion for summary judgment. They contend, however, the
district court's holding was no surprise to Hughes because their brief argued Hughes
was terminated on the basis of the complaints, not for his speech.

       Hughes should not have been required to anticipate the district court would
grant summary judgment on a basis defendants admit was not raised. Therefore, we
conclude the district court erred in granting summary judgment. Accordingly, we



                                          -13-
reverse the district court's grant of summary judgment and remand for further
proceedings.

                                          III

      The judgment of the district court granting summary judgment in favor of
Colonel Stottlmyre in his official capacity is affirmed. The judgment of the district
court granting summary judgment in favor of Ellis, Ripley and Wilhoit is reversed,
and the case is remanded for further proceedings.



COLLOTON, Circuit Judge, concurring in part and dissenting in part.

        The court holds that this case must be remanded for further proceedings with
respect to three of the four defendants because the district court granted summary
judgment “on a basis defendants admit was not raised.” Ante, at 14. I respectfully
disagree with this conclusion, and I would affirm the judgment of the district court as
to all of the defendants.

       The court’s decision is premised on Hughes’s contention that in the district
court proceedings, “the defendants only argued against his prima facie showing of
retaliation and never discussed any legitimate non-discriminatory reasons for their
actions.” Ante, at 13. This assertion by Hughes is incorrect. The defendants argued
in support of their motion for summary judgment that “[t]here is no dispute that Mr.
Hughes was under investigation for serious violations of Patrol policy,” (J.A. at 162),
and that “[t]he uncontroverted material facts establish that it was this misconduct, and
not a random comment by Mr. Hughes a year earlier at a private planning meeting,
that resulted in Mr. Hughes being disciplined.” (Id. at 163-64). The brief continued
that “[t]he evidence is clear and unequivocal that the Plaintiff was demoted and
transferred by Stottlemyre because he engaged in serious misconduct, based on what

                                         -14-
Mr. Hughes admitted he did.” (Id. at 164). That these arguments appeared under a
heading asserting “[n]o causal connection” did not delimit the argument to a refutation
of the plaintiff’s prima facie case. “Causal connection” is a necessary element of the
claim, not merely of a prima facie case, see Revels v. Vincenz, 382 F.3d 870, 876 (8th
Cir. 2004), and the defendants’ brief in the district court never restricted its argument
to defeating a prima facie case.

       On behalf of defendant Ripley, the brief filed in the district court disputed
Hughes’s theory that he was targeted for discipline because he disagreed with Ripley.
The brief argued that “Plaintiff’s habit of misconduct and laziness were altered upon
the arrival of a new corporal, Kevin Fisher,” that “Fisher reported Plaintiff’s
misconduct,” and that Ripley signed the complaints “because he was Plaintiff’s
supervisor, and he was told to sign by Professional Standards.” (J.A. at 165-66).
With respect to defendant Ellis, the brief likewise argued that he signed a complaint
that “was generated by Corporal Fisher, who objected to Plaintiff entering his
residence without authorization,” and that Hughes’s efforts to justify his actions were
largely irrelevant, because “what is determinative is that Fisher initiated the
complaints against Plaintiff.” (Id. at 166-67 & n.6). As for defendant Wilhoit, the
brief urged that Hughes’s speech was not “a motivating factor in Wilhoit’s actions
because Wilhoit was unaware of that activity.” (Id. at 168).

       Not surprisingly, Hughes responded to these arguments by attempting to
generate a factual dispute concerning whether he was really demoted and transferred
for misconduct and violations of patrol policy. He argued that “[i]n their efforts to pin
the investigation of those incidents on Fisher, and thereby shield themselves from
responsibility, defendants lied.” (Id. at 283). He asserted that “[t]he Patrol did not
discipline others as harshly,” and attempted to marshal evidence of similarly situated
employees who were punished less severely for actions that Hughes asserted were
comparable. (Id. at 284-85). Hughes’s argument regarding Ripley, Ellis, and Wilhoit
sought to question the credibility of their explanations. (Id. at 287-88).

                                          -15-
       The district court did not abuse its discretion in organizing these arguments
under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). See Graning v. Sherburne County, 172 F.3d 611, 615 (8th Cir. 1999)
(applying McDonnell Douglas to § 1983 First Amendment claim). The McDonnell
Douglas method was “never intended to be rigid, mechanized, or ritualistic,” Furnco
Construction Corp. v. Waters, 438 U.S. 567, 577 (1978), and there is no requirement
that parties use “magic words” to express their argument that the evidence generates
no genuine issue of fact for trial. The substance of the arguments presented to the
district court involved whether Hughes was demoted and transferred for a legitimate
reason independent of his allegedly protected speech. With respect, the “admission”
made by the appellees concerning their filings in the district court will not bear the
weight assigned to it by the court. While the appellees “admit that they did not state
their position in the same language as that used by the District Court,” they assert it
is “untrue and unfair to assert that the District Court’s analysis was a surprise to the
Appellant.” (Br. of Appellees at 22) (emphasis added). The brief of the appellees
devotes five pages to demonstrating how the issue whether the defendants acted
against Hughes for a legitimate reason was indeed fully aired before the district court.

       The court’s opinion, finding that Hughes has satisfied the “low threshold” of
a prima facie case, see Rodgers v. U.S. Bank, 417 F.3d 845, 852 (8th Cir. 2005),
should not preclude the defendants on remand from pursuing a renewed motion for
summary judgment based on the contention that Hughes did not engage in protected
activity, see Garcetti v. Ceballos, 126 S. Ct. 1951 (2006), or that Hughes was demoted
and transferred for legitimate reasons. See Hudson v. Norris, 227 F.3d 1047, 1051
(8th Cir. 2000) (providing that although court would not consider arguments raised
for the first time on appeal, “defendants may raise these issues on remand in a
renewed motion for summary judgment, or at some other appropriate juncture, if they
wish”). Because I find no procedural error by the district court, however, I would
reach the merits and affirm the district court’s conclusion that there is no genuine
issue of fact for trial. Even assuming that Hughes engaged in protected speech, he

                                         -16-
admitted the misconduct underlying the disciplinary complaints that led to his
demotion and termination. He failed to produce evidence of similarly-situated
employees who were treated differently, and it is undisputed that complaints by
Corporal Fisher were the catalyst for the disciplinary complaints against Hughes. It
is further undisputed that Lieutenant Wilhoit concluded two investigations,
substantially completed a third, and received the assignment for a fourth before he was
even aware of Hughes’s alleged protected activity. For the reasons stated in the
district court’s thorough opinion, I would affirm the judgment dismissing the
complaint. See Hughes v. Stottlemyre, No. 04-4053, 2005 WL 1279027 (W.D. Mo.
May 27, 2005).
                       ______________________________




                                         -17-
