                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 06-2368
                                 ________________

Kathy Davison,                             *
                                           *
      Appellant,                           *
                                           *
      v.                                   *      Appeal from the United States
                                           *      District Court for the
City of Minneapolis, Minnesota;            *      District of Minnesota.
Rocco Forte, in his individual and         *
official capacities,                       *
                                           *
      Appellees.                           *

                                 ________________

                           Submitted: January 12, 2007
                               Filed: June 20, 2007 (Corrected: 06/26/2007)
                               ________________

Before COLLOTON, BRIGHT, and GRUENDER, Circuit Judges.
                        ________________


GRUENDER, Circuit Judge.

       Kathy Davison appeals from the district court’s grant of summary judgment in
favor of Rocco Forte and the City of Minneapolis (“Appellees”) on her claims of
unlawful retaliation in violation of the First Amendment rights to freedom of speech
and freedom of association. The district court found that she failed to present a prima
facie case of retaliation. For the reasons discussed below, we affirm in part and
reverse in part.
I.    BACKGROUND

       Viewed in the light most favorable to Kathy Davison, see Hughes v.
Stottlemyre, 454 F.3d 791, 793 (8th Cir. 2006), the facts are as follows. Davison has
been employed with the City of Minneapolis Fire Department (“the Fire Department”)
since 1986 and has held the rank of Captain since 1999. She has been a member of
the International Association of Fire Fighters Local 82 (“the Union”) throughout her
employment, during which Rocco Forte served as the Chief of the Fire Department.
During the spring and summer of 2002, in response to budget constraints, Chief Forte
proposed a plan to close Ladders 7 and 8 and purchase several quints,1 which
necessitated laying off firefighters (“the Plan”). Captain Davison actively and
publicly opposed the Plan and asserts that she repeatedly was denied promotion to the
position of Arson Investigator in retaliation for her outspoken and public opposition.

       Captain Davison became active in opposing the Plan beginning in the fall of
2002. On October 3, 2002, Captain Davison attended a public meeting, also attended
by Chief Forte, and voiced her opposition to the Plan, specifically arguing that it
would result in longer response times by the Fire Department. Union President Tom
Thornberg provided evidence that Chief Forte approached him after the meeting and
said, “You really need to get your board under control. Kathy and [her son] were at
a neighborhood meeting.” Union President Thornberg went on to explain that “Chief
Forte was upset with the Union and in particular Captain Davison for her position
against [the Plan] . . . . Chief Forte was visibly upset regarding the comments Captain
Davison made at the meeting when he made this statement to me.”



      1
       “Ladder” refers to a ladder company, a group of firefighters that staff a ladder
truck. A “quint,” or quintuple combination pumper, is a fire service apparatus that
serves the dual purpose of an engine and a ladder truck. The name refers to the five
functions that a quint provides: pump, water tank, fire hose, aerial device and ground
ladders.

                                         -2-
       On October 14, 2002, the Union created the Committee to Oppose the Closing
of Ladders 7 and 8, and Union President Thornberg appointed Captain Davison as
head of this committee. Among other projects associated with this new role, Captain
Davison organized the creation and distribution of flyers criticizing the Plan. The
flyers warned citizens that the Plan would “decrease the safety of our community and
firefighters” and urged them to contact their local City Council member to express
disapproval of the Plan. Chief Forte saw this flyer when it was brought into his office
and assumed that the Union committee was responsible for its creation. News
Channel 9 in Minneapolis interviewed, filmed and ran a story about Captain Davison
and her flyer-distribution efforts.

       The following month, Captain Davison attended another public meeting during
which Chief Forte attempted to dispel accusations that response times for medical
emergencies would increase as a result of the Plan by promising that he would station
a Hennepin County ambulance to service the areas previously covered by Ladders 7
and 8. Captain Davison stood before the crowd and explained that Chief Forte did not
have the authority to decide where ambulances are stationed. Hennepin County
Commissioner Mark Stenglein, who was present at the meeting, then stood up and
confirmed that Captain Davison was correct. Also in November, Captain Davison
attended and spoke out against the Plan at two other public meetings, one of which
Chief Forte attended. Her efforts against the Plan were also featured in the Southwest
Journal, a local magazine.

        At the same time, the Fire Department announced in October 2002 that it was
soliciting candidates for the position of Arson Investigator. The City of Minneapolis’s
Human Resources Department (“Human Resources”) follows a standard procedure for
filling municipal positions, including those with the Fire Department.2 The procedure

      2
      Human Resources, or personnel, is directed by the Civil Service Commission
and the City Coordinator’s office. See Minneapolis, Minn. Charter, ch. 19; 2
Minneapolis, Minn. Code of Ordinances, ch. 21. The procedure followed by Human

                                         -3-
requires applicants first to complete a written pass/fail examination. Those who pass
must then complete a scored practical examination covering hypothetical fire
emergencies. The practical examination score is weighted as ninety percent of a
candidate’s final score, with seniority accounting for the remaining ten percent.
Human Resources then ranks the candidates by their final scores and compiles them
into a list of certified candidates. The names and scores of the top three certified
candidates are forwarded to the Fire Department, which then interviews those three
candidates. A three-member panel that consists of two fire chiefs and one human
resources representative conducts the interviews.3 Chief Forte is not on the interview
panel. The panel grades the answers of the candidates and then forwards both the
examination and interview scores to Chief Forte, who makes the ultimate decision on
which candidate to select. According to his testimony, Chief Forte simply selects the
candidate with the highest interview score “100% of the time.”

       For the Arson Investigator position, nine candidates passed the written
examination and completed the scored practical examination. Human Resources
certified Captain Davison as the candidate with the highest examination score. The
panel interviewed the top three candidates: first-ranked Captain Davison, second-
ranked Jennifer Cornell and third-ranked Tim Thomas. Thomas received the highest




Resources derives from the Civil Service Commission’s authority under the
Minneapolis Charter to standardize the process by which candidates are certified for
municipal positions. See Minneapolis, Minn. Charter, ch. 19 § 7.
      3
       The first and second interview panels for the Arson Investigator position
included Assistant Chiefs Ulysses Seal and James Clack and Human Resources
Generalist Lasamy Mila. For the third interview panel, Deputy Chief Dave Dewall
replaced Assistant Chief Clack. Union official Thomas Griffin was also present
during the panel interviews to read the questions, but he did not score the answers.

                                         -4-
interview score of 87.66, while Cornell received a score of 87 and Captain Davison
received a score of 84. Chief Forte did not select Thomas, the candidate with the
highest interview score, but instead promoted Cornell.4

       In February 2003, a second Arson Investigator position opened. Human
Resources certified Captain Davison, Thomas and William Lindberg as the first-,
second- and third-ranked candidates, respectively, based on their practical
examination scores. Because the panel had just recently interviewed Captain Davison
and Thomas, they only interviewed Lindberg. Lindberg scored an 82 on the
interview, behind Thomas’s 87.66 and Captain Davison’s 84 from the prior round of
interviews. This time Chief Forte did select the candidate with the highest interview
score and promoted Thomas.

       After the two failed promotion attempts, Captain Davison’s public opposition
to the Plan continued and increased. In March 2003, Captain Davison participated in
a rally protesting the Plan and expressed her concerns to the City of Minneapolis
Mayor R.T. Rybak, who is a member of the City Council’s Executive Committee, the
entity responsible for the appointment and removal of the Fire Chief. Minneapolis,
Minn. Charter, ch. 3, § 4; ch. 4 § 4. That same month, Captain Davison’s protest of
the Plan at a City Council meeting attracted media attention. For example, the St. Paul
newspaper, Pioneer Press, ran a story on the front page of its local news section that
included several quotations and photographs of Captain Davison, and Minnesota
Public Radio (“MPR”) aired an interview with Captain Davison. Captain Davison

      4
        The record reveals that on at least one other occasion Chief Forte did not
follow his purported practice of selecting only those candidates with the highest
interview score. In 1999, Human Resources certified firefighter Jeffrey Westall as the
first-ranked candidate for the position of Captain. Twenty-three openings for the
position of Captain were available and, following the Human Resources procedure,
the Fire Department panel interviewed 25 candidates. Westall’s interview score
ranked him 24th out of the 25 interviewees. Nevertheless, Chief Forte selected him
for promotion.

                                         -5-
attended two more City Council meetings on April 1 and April 14, 2003, where she
similarly spoke out against the Plan.

       In the spring of 2003, Ladder 8 was closed pursuant to the Plan. Following a
July 14, 2003 house fire during which civilian Pearl Gallagher died, News Channel
9 aired an interview with Captain Davison. In the story, Captain Davison attributed
Gallagher’s death to the Plan, arguing that if Ladder 8 had not been closed the Fire
Department’s response time would have been shorter and the likelihood of rescuing
Gallagher would have been greater. Chief Forte discussed Captain Davison’s
allegations with Councilman Scott Benson, his staff and “who was ever [sic] up in the
office at the time.”

        In its August 2003 edition, the community magazine The Rake featured a cover
story about the Fire Department with the headline: “The Minneapolis Fire
Department, now officially ‘a recipe for disaster.’” The article covered the death of
Gallagher and, in particular, speculated about how the closing of Ladder 8 may have
contributed to her death. Also featured in the article were pictures of Chief Forte,
Mayor Rybak and Union President Thornberg and excerpts from an interview with
Chief Forte. The article quoted an unnamed firefighter who stated: “Four minutes less
in that atmosphere, would [Gallagher’s] chances be better? Yes.” Chief Forte testified
that Captain Davison was the only person, to his knowledge, that characterized
Gallagher’s death as a tragic consequence of the Plan and called the article
“disheartening.” Also that summer, Chief Forte held a meeting for the laid-off
firefighters that Mayor Rybak, three City Council members and Captain Davison
attended. The next day, the Pioneer Press published an article about the meeting and
quoted Captain Davison’s claim that the Plan was not actually addressing the budget
constraints it was designed to alleviate.

     In November 2003, a third Arson Investigator position opened. The Fire
Department panel interviewed Captain Davison, Lindberg and Denise Bryn, whom

                                         -6-
Human Resources certified as the first-, second- and third-ranked candidates,
respectively. The interview panel scored Bryn highest with an 87, followed by
Captain Davison with a 67 and Lindberg with a 43. Chief Forte promoted Bryn.

       The record contains extensive facts regarding Chief Forte’s knowledge of
Captain Davison’s media appearances. He specifically admitted to seeing the summer
2003 article in the Pioneer Press and the August 2003 article in The Rake and hearing
about the MPR interview. He also knew that the local news programs ran “four or
five” stories on the Union’s opposition to the Plan and knew stories ran in the major
local newspapers and in neighborhood magazines such as the Southwest Journal.
Chief Forte also testified to the following facts: he and his Plan received a lot of
negative media coverage; he would have discussions with Mayor Rybak as the media
coverage occurred; he was disheartened by the negative media coverage; he was
interviewed for many stories in the media coverage; he was aware that Captain
Davison was quoted in many of the media stories; he believed Captain Davison was
quoted in the media coverage more than anyone else; he thought of Captain Davison
as the “face of the union”; he knew Captain Davison was vocal in her opposition to
the Plan; and he frequently discussed the media coverage with people in his office.
The record also reveals that Chief Forte was not happy about Captain Davison’s
outspoken opposition to the Plan and that Union opposition delayed its
implementation.

      Captain Davison filed this lawsuit against the City of Minneapolis and Chief
Forte, in his individual and official capacities, alleging unlawful retaliation for
engaging in speech and association activities protected by the First Amendment. After
discovery, Appellees moved for summary judgment, which the district court granted.
As to Chief Forte, the district court found that Captain Davison failed to demonstrate
a causal connection between her protected activities and his decisions not to promote
her. As to the City of Minneapolis, the district court found that Chief Forte did not
have the policymaking authority necessary to subject the City of Minneapolis to

                                         -7-
liability. Captain Davison appeals, arguing that the district court improperly weighed
the evidence, which, when viewed in the light most favorable to her, demonstrates
genuine issues of material fact that preclude summary judgment. Appellees respond
that there is no evidence that Captain Davison’s constitutionally protected activities
were a motivating factor in the promotion decisions and, in any event, the same
decisions would have been made even in the absence of the protected activities.
Captain Davison also argues that Chief Forte had the authority necessary to subject
the City of Minneapolis to liability, which Appellees deny.

II.   DISCUSSION

       We review the district court’s denial of summary judgment de novo. Hughes,
454 F.3d at 796. “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. (quoting Spears v. Mo. Dep’t of Corr. & Human Res., 210 F.3d 850, 853
(8th Cir. 2000)).

      A.     First Amendment Retaliation


        To establish a prima facie case of retaliation, a plaintiff must allege and prove
that: (1) she engaged in activity protected by the First Amendment; (2) the defendant
took an adverse employment action against her; and (3) the protected conduct was a
substantial or motivating factor in the defendant’s decision to take the adverse
employment action. Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 287 (1977).
If the plaintiff meets this burden, the burden shifts to the defendant to demonstrate that




                                           -8-
the same employment action would have been taken in the absence of the protected
activity. Mt. Healthy, 429 U.S. at 287.5


      5
        In our Graning v. Sherburne County decision, a First Amendment case, we
explicitly stated that the Mount Healthy framework applies only where the plaintiff
has presented direct evidence showing that the employer used the plaintiff’s protected
speech as a criterion in the employment decision. 172 F.3d 611, 615 n.3 (8th Cir.
1999). Two cases cited by the dissent likewise stated that the Mount Healthy
framework applies only where there is direct evidence, but the claims in those cases
were not brought under the First Amendment. See Carroll v. U.S. Dep’t of Labor, 78
F.3d 352, 357 (8th Cir. 1996) (whistleblower claim under the Energy Reorganization
Act); Beshears v. Asbill, 930 F.2d 1348, 1353 (8th Cir. 1991) (discrimination claim
under the Age Discrimination in Employment Act). In contrast with Graning, other
decisions of our circuit have employed the Mount Healthy framework in First
Amendment cases without requiring that the plaintiff present direct evidence. E.g.,
Altonen v. City of Minneapolis, No. 06-3527, slip op. at 6 (8th Cir. June 4, 2007);
Calvit v. Minneapolis Pub. Sch., 122 F.3d 1112, 1116-17 (8th Cir. 1997); Stever v.
Indep. Sch. Dist., 943 F.2d 845, 849 (8th Cir. 1991).

       When there are conflicting lines of cases within our circuit, we are free to
choose which line to follow. United States v. Maxon, 339 F.3d 656, 659 (8th Cir.
2003). In this case, we choose to follow the line of cases that employ the Mount
Healthy framework for retaliation claims under the First Amendment without
requiring the presence of direct evidence for three reasons. First, the Supreme Court
has never stated that First Amendment retaliation claims require so-called direct
evidence in order for the Mount Healthy framework to apply. See Mt. Healthy, 429
U.S. at 287. Second, the majority of circuits to address this issue have decided that
“the Mt. Healthy mixed-motive analysis applies to First Amendment claims,
regardless of whether the plaintiff uses direct or circumstantial evidence to prove that
there was a retaliatory motive behind the adverse employment action.” Allen v.
Iranon, 283 F.3d 1070, 1074-75 & n.4 (9th Cir. 2002) (collecting cases from the First,
Second, Third, Fifth, Sixth, Seventh and Tenth Circuits, and noting that Graning is
in conflict with these circuits). Third, Appellees have not urged this court and did not
urge the district court to apply the McDonnell Douglas framework. In fact, both
parties cited only Mount Healthy in their briefs in this proceeding and in the
proceedings below. For these reasons, we respectfully disagree with the dissent’s
contention that the McDonnell Douglas framework should be applied, and we apply
the Mount Healthy framework to Captain Davison’s claim.

                                          -9-
       Typically, in determining whether speech is constitutionally protected, as a
threshold matter we would first consider whether the employee spoke as a citizen and
on a matter of public concern. Garcetti v. Ceballos, --- U.S. ---, 126 S. Ct. 1951, 1958
(2006). In the present case, however, Appellees did not challenge, either in their brief
or at oral argument, the fact that Captain Davison engaged in the protected activities
in her capacity as a citizen and that they involved a matter of public concern. With
respect to establishing the prima facie case, Appellees do not challenge the facts that
Captain Davison was engaged in conduct protected by the First Amendment, was
qualified for the position of Arson Investigator and suffered adverse employment
actions by being denied the promotion three times. Therefore, the only issue with
respect to establishing the prima facie case is whether Captain Davison’s protected
association and speech activities were a substantial or motivating factor in the
decisions not to promote her. See Mt. Healthy, 429 U.S. at 287. We believe Captain
Davison presented sufficient evidence to create a genuine issue of material fact with
respect to this element.

        There is no dispute that Chief Forte was aware of Captain Davison’s protected
union and speech activities that were repeatedly critical of his Plan. Chief Forte was
aware of her media appearances, referred to her as “the face of the union” and
admitted that she appeared in the media more than any other firefighter. He also
testified that Captain Davison was the only person to link the Plan to Gallagher’s
death, an allegation he was forced to discuss with the public and with Councilman
Benson. Moreover, Chief Forte often discussed Captain Davison’s media appearances
with two members of the interview panel, Assistant Chiefs Seal and Clack. All three
men testified that newspaper articles covering her activities “float[ed] around the
office” and that they frequently discussed media coverage of the Union’s opposition
to the Plan.

       Turning to whether Chief Forte’s knowledge of her protected activities
motivated his decisions not to promote Captain Davison, we find our Hughes case
instructive. In Hughes, a sergeant with the state highway patrol brought a First

                                         -10-
Amendment retaliation claim against his supervisor after he was demoted, allegedly
for speaking out against changes to patrol policy. 454 F.3d at 793. Sergeant Hughes’s
direct supervisor, Lieutenant Ripley, supported a plan to consolidate his patrol group
with that of a nearby county. Id. At a meeting where Lieutenant Ripley was present,
Sergeant Hughes spoke out against the plan, citing statistics that tended to show that
response times for troopers would increase, thereby adversely impacting public safety.
Id. at 794. After the meeting, Lieutenant Ripley was visibly angry with Sergeant
Hughes. Id. In the months following the meeting, Sergeant Hughes received verbal
reprimands, negative performance evaluations and four disciplinary complaints from
co-defendants, all of which were inconsistent with his performance and reviews prior
to the meeting. Id. Sergeant Hughes was eventually demoted. Id. at 795. In holding
that Sergeant Hughes presented evidence that his conduct was a substantial or
motivating factor sufficient to satisfy the third element of the prima facie case, we
relied on the facts that: “Ripley strongly favored the proposed consolidation plan” but
was “forced to reconsider [it]” after Sergeant Hughes questioned its impact on public
safety; “Ripley was visibly angry” after the meeting at which Sergeant Hughes spoke
out against the plan; Lieutenant Ripley continued to voice dismay at Sergeant
Hughes’s opposition to the plan; and Hughes was “unwilling[ ] to accede to the plan.”
Id. at 798.

       We believe that the facts put forth by Captain Davison are similar to those in
Hughes and are likewise sufficient to create a genuine issue of material fact as to
whether her activities were a motivating factor in the promotion decisions. See id. at
799. Captain Davison began engaging in constitutionally protected activities in
October 2002. Chief Forte was unhappy with and disheartened by the public
opposition to the Plan led by Captain Davison, whom he referred to as “the face of the
Union.” After one public meeting during which Captain Davison challenged the
Plan’s impact on public safety, Chief Forte got visibly upset by her remarks and
verbally expressed his displeasure with her to Union President Thornberg, telling him
to “get your board under control.” As a result of Captain Davison’s efforts, Chief
Forte repeatedly had to address with the public, and once with Councilman Benson,


                                         -11-
accusations about the Plan’s impact on public safety and the likelihood of more deaths
like Gallagher’s. Evidence in the record also indicates that Captain Davison’s
relentless public opposition on behalf of the Union delayed implementation of Chief
Forte’s Plan. From all of this evidence, we believe a jury could infer that Chief
Forte’s repeated decisions not to promote Captain Davison were in part motivated by
her constitutionally protected activities. Id. at 797 (“a plaintiff must prove an
employer’s retaliatory motive played a part in the adverse employment action”)
(emphasis added); see also Campbell v. Ark. Dep’t of Corr., 155 F.3d 950, 959-60
(8th Cir. 1998) (holding that “evidence that [the defendants] believed that [the
plaintiff’s] general outspokenness on security and corruption encouraged media
criticism of [the defendants]” was sufficient for a jury to infer causation in the
retaliation claim).

       In addition, temporal proximity between protected activity and an adverse
employment action can contribute to establishing the third element of a prima facie
case of retaliation. In Hudson v. Norris, we held that the plaintiff’s “exemplary”
record in combination with the fact that the adverse employment action took place
within four months of the protected conduct, was sufficient to allow “a reasonable jury
to infer a causal link between [the two].” 227 F.3d at 1051, 1053. We stated that an
adverse action that occurs on the heels of protected activity “is significant evidence
that what happened . . . was more than just coincidence.” Id. at 1051. Likewise, in
Stever v. Independent School District No. 625, we stated that “the order and temporal
proximity of [the challenged employment action and the protected activity] should not
be regarded as coincidental on a motion for summary judgment.” 943 F.2d 845, 852
(8th Cir. 1991).

       Captain Davison’s protected activities began in October 2002 and were ongoing
through December 1, 2003, when she was denied for the third time the promotion to
Arson Investigator. Her first promotion attempt was denied four months after Chief
Forte told Union President Thornberg to get his board under control and after Captain
Davison appeared on local news programs. It occurred three months after Captain


                                         -12-
Davison publicly rebuked Chief Forte’s claim of authority to decide where to station
ambulances and when she appeared in a local newspaper attacking the Plan. The
second promotion attempt was denied one month after the first. The third promotion
was denied after Captain Davison’s protected activities continued and increased. She
had participated in a rally that was televised on the local news eight months before the
third promotion attempt, and she publicly attributed Gallagher’s death to Chief Forte’s
Plan just three months before she was denied the third promotion. Consistent with
Hudson and Stever, the fact that the three denied promotions occurred while Captain
Davison’s protected activities were ongoing and continuous cannot be characterized
as coincidental on this record. See Hudson, 227 F.3d at 1051; Stever, 943 F.2d at
852.6

       In sum, we disagree with the district court and hold that the evidence of Chief
Forte’s knowledge of her protected activities and his expressed displeasure with them,
in combination with the proximity of the three promotion denials, constitutes
sufficient evidence to create a genuine issue of material fact as to whether the
promotion decisions were at least in part motivated by Captain Davison’s
constitutionally protected activities.

     With there being sufficient evidence for a jury to conclude that Captain
Davison’s protected activities were a motivating factor in Chief Forte’s decisions not


      6
        We do not mean to imply that simply engaging in protected conduct near the
time of a promotion opportunity guarantees an employee a desired promotion. See
Wedow v. City of Kansas City, 442 F.3d 661, 675 (8th Cir. 2006) (noting that
“temporal proximity alone generally will not suffice to create a genuine issue of fact
on a retaliation claim”); see also Muldrew v. Anheuser-Busch Inc., 728 F.2d 989, 994
(8th Cir. 1984) (Gibson, J., dissenting) (“Congress did not intend by Title VII . . . to
guarantee a job to every person regardless of qualifications . . . .”) (quoting
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1972)). Our concern is
assuaged in this case because there is no evidence suggesting that Captain Davison’s
long-term and unwavering commitment to opposing the Plan was undertaken simply
to ensure that she would be promoted.

                                         -13-
to promote her, the burden now shifts to Appellees to demonstrate that the same
employment action would have been taken even in the absence of the protected
activities. See Mt. Healthy, 429 U.S. at 287; see also Altonen v. City of Minneapolis,
No. 06-3527, slip op. at 8 (8th Cir. June 4, 2007) (stating that evidence that gives rise
to an “inference of retaliatory motive” is sufficient to shift the burden to the employer
to demonstrate that employer would have taken the same action regardless of the
protected conduct). The district court found that Appellees satisfied their burden in
light of Chief Forte’s testimony that he always selects the candidate with the highest
interview score, which Captain Davison never received. Captain Davison argues that
there is a genuine issue of material fact regarding Chief Forte’s same-decision
defense. In support of her argument, Davison presents evidence that on two occasions
Chief Forte did not select candidates with the highest interview scores.

       Appellees do not dispute that the two deviations occurred—when Chief Forte
promoted both Cornell and Westall over candidates with higher interview scores.
Rather, Appellees argue that because Chief Forte has complete discretion over which
certified candidate to hire and is not bound by his personal practice of always
selecting the candidate with the highest interview score, Cornell’s and Westall’s
promotions do not invalidate their same-decision defense. Viewing the evidence in
the light most favorable to Captain Davison, we cannot conclude that as a matter of
law Chief Forte demonstrated that he would have made the same decision in the
absence of her protected activities. See Mt. Healthy, 429 U.S. at 287.

       With respect to Cornell’s promotion, we recognize that the difference between
her interview score and Thomas’s interview score was slight, indeed only 0.66 points.
Nonetheless, Chief Forte’s decision to promote Cornell stands in direct conflict with
his testimony that he selects the top-scoring interviewee “100% of the time.” In light
of this categorical assertion by Chief Forte, we believe that accepting Appellees’
position that Cornell’s and Thomas’s interview scores were “substantially identical”
and that therefore Chief Forte’s deviation from his policy is not significant borders too
closely on weighing the evidence and assessing Chief Forte’s credibility, tasks that we


                                          -14-
reserve for a jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
(“Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of the judge, whether
he is ruling on a motion for summary judgment or for a directed verdict.”)

       Similarly, we believe that Captain Davison’s proffered evidence regarding
Westall’s promotion creates a genuine issue of material fact as to whether Chief Forte
would have made the same decision. Twenty-three positions for Captain were open
when top-certified candidate Westall interviewed for the position. His interview score
placed him 24th out of the 25 certified candidates. If it actually were Chief Forte’s
policy to select candidates with the highest interview scores, Westall would not have
been selected. Like Westall, Captain Davison was the top-certified candidate and had
an interview score that ranked her one spot below the number of positions available,
at least for the second and third Arson Investigator promotion opportunities.

       In combination, the evidence presented by Captain Davison regarding Cornell’s
and Westall’s promotions, which directly contradicts Chief Forte’s testimony, is
sufficient to create a genuine issue of material fact as to whether Chief Forte would
have made the same decision in the absence of her protected activities. See Mt.
Healthy, 429 U.S. at 287. Appellees’ same-decision defense rests solely on Chief
Forte’s categorical policy of hiring the candidate with the top interview score.
Captain Davison presented evidence that would allow a reasonable jury to conclude
that because Chief Forte deviated from his policy in the past, he may have deviated
to hire Captain Davison as well had she not engaged in the protected activities. Thus,
we conclude that the district court’s grant of summary judgment in favor of Chief
Forte was improper.

      B.     Municipal Liability

       The City of Minneapolis may be held liable under section 1983 for Chief
Forte’s actions if one of its customs or policies caused the violation of Captain


                                         -15-
Davison’s First Amendment rights. Monell v. Dep’t of Soc. Servs. of New York, 436
U.S. 658, 690-91 (1978). We agree with the district court that Captain Davison failed
to present any evidence of a policy, officially adopted and promulgated by the City
of Minneapolis, or a practice, so permanent and well-settled so as to constitute a
custom, that existed and through which Chief Forte acted to deny her the promotions.7
City of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988).

       However, even in the absence of an official policy or a custom, the Supreme
Court has made clear that though “[p]roof of a single incident of unconstitutional
activity is not sufficient to impose liability under Monell,” Oklahoma City v. Tuttle,
471 U.S. 808, 823-24 (1985), “an unconstitutional government policy could be
inferred from a single decision taken by the highest officials responsible for setting
policy in that area of the government’s business,” Praprotnik, 485 U.S. at 123. In this
scenario, “[m]unicipal liability attaches only where the decisionmaker possesses final
authority to establish municipal policy with respect to the action ordered.” Pembaur
v. City of Cincinnati, 475 U.S. 469, 481 (1986). The district court also denied Captain
Davison’s Monell claim on this ground, finding that there was no evidence that Chief
Forte had the final authority to make municipal policy. On appeal, Captain Davison
argues that Chief Forte’s authority to decide whom to promote in the Fire Department
is enough to subject the City of Minneapolis to liability under section 1983. Captain
Davison’s argument fails as a matter of law.




      7
        Captain Davison argues that because “Chief Forte was the final decision maker
concerning who to promote to the position of Arson Investigator . . . [his] retaliation
against Captain Davison amounts to a municipal ‘custom.’” However, Chief Forte’s
authority to promote individuals in the Fire Department, in and of itself, does not rise
to the level of a custom. See Monell, 436 U.S. at 691 (requiring a custom under
section 1983 to be “persistent and widespread” or “permanent and well settled”).
Captain Davison has not attempted to satisfy the requirements to prove that such a
municipal custom exists. See also Kuha v. City of Minnetonka, 365 F.3d 590, 604 (8th
Cir. 2003).

                                         -16-
        The Supreme Court has distinguished final policymaking authority from final
decisionmaking authority. In Pembaur, the Court supplemented its pronouncement
that “[t]he fact that a particular official—even a policymaking official—has discretion
in the exercise of particular functions does not, without more, give rise to municipal
liability based on an exercise of that discretion,” id. at 481-82, with the following
illustration:

      Thus, for example, the County Sheriff may have discretion to hire and
      fire employees without also being the county official responsible for
      establishing county employment policy. If this were the case, the
      Sheriff’s decisions respecting employment would not give rise to
      municipal liability, although similar decisions with respect to law
      enforcement practices, over which the Sheriff is the official policymaker,
      would give rise to municipal liability. Instead, if county employment
      policy was set by the Board of County Commissioners, only that body’s
      decisions would provide a basis for county liability. This would be true
      even if the Board left the Sheriff discretion to hire and fire employees
      and the Sheriff exercised that discretion in an unconstitutional manner;
      the decision to act unlawfully would not be a decision of the Board.
      However, if the Board delegated its power to establish final employment
      policy to the Sheriff, the Sheriff’s decisions would represent county
      policy and could give rise to municipal liability.

Id. at 483 n.12; see also Praprontik, 485 U.S. at 128 (holding that even assuming that
supervisors transferred plaintiff in retaliation for speech, “it says nothing about the
actions of those whom the law established as the maker of municipal policy in matters
of personnel administration”). We believe the facts of this case are encompassed by
the Pembaur hypothetical and agree with our sister circuits that “[t]he discretion to
hire and fire does not necessarily include responsibility for establishing related
policy.” Greensboro Prof’l Fire Fighters Ass’n, Local 3157 v. City of Greensboro,
64 F.3d 962, 966 (4th Cir. 1995); accord Radic v. Chicago Transit Auth., 73 F.3d 159,
161 (7th Cir. 1996) (noting the plaintiff’s argument was flawed because of its “failure
accurately to distinguish between authority to make administratively final decisions
and authority to establish official municipal policy”) (citing Monell and Pembaur).


                                         -17-
In other words, although we acknowledge that Chief Forte “had the authority to select
particular individuals for promotion and even to design the procedures governing
promotions within his department, this authority d[oes] not include responsibility for
establishing substantive personnel policy governing the exercise of his authority.”
Greensboro, 64 F.3d at 965. Because Captain Davison has not alleged8 and offers no
proof that Chief Forte was delegated authority to make “final employment policy,” as
opposed to promotion procedures within the Fire Department, her argument that Chief
Forte’s final decisionmaking authority satisfies Monell fails. See Pembaur, 475 U.S.
at 483 & n.12; Praprotnik, 485 U.S. at 128; Greensboro, 64 F.3d at 965-66.

       Even if Captain Davison had argued that Chief Forte was delegated final
policymaking authority regarding employment practices on behalf of the City of
Minneapolis, we would conclude that he was not. “[W]hether an official had final
policymaking authority is a question of state law.” Pembaur, 475 U.S. at 483 (noting
that “[a]uthority to make municipal policy may be granted directly by a legislative
enactment or may be delegated by an official who possesses such authority”). In cases
such as this one involving a city official, courts consult the applicable city charter,
code or ordinances. See Greensboro, 64 F.3d at 965 (citing a city ordinance as
establishing the authority conferred upon the City Manager and City Council with
regard to employer-employee relations for the purpose of a section 1983 liability
determination); Meyers v. City of Cincinnati, 14 F.3d 1115, 1118 (6th Cir. 1994)
(citing Cincinnati’s Charter and Administrative Code as establishing the authority of


      8
        In her complaint, Captain Davison alleged that the unlawful employment
actions were “based on the policymaking and final decision-making authority of the
defendant City of Minneapolis.” As stated, we agree with Appellees’ response that
Captain Davison “failed to produce evidence of an official policy of the City of
Minneapolis which disfavors union members for promotional advancement.” Captain
Davison rephrased her Monell argument during the summary judgment proceedings
and stated that “Chief Forte was the final decision maker concerning who to promote
to the position of Arson Investigator.” (Emphasis added.) Nowhere in the record does
Captain Davison allege that Chief Forte had final policymaking authority for the City
of Minneapolis regarding employment practices.

                                         -18-
the City Manager for the purpose of a section 1983 liability determination); Feliciano
v. City of Cleveland, 988 F.2d 649, 655 (6th Cir. 1993) (“The applicable Ohio law,
that is, the City Charter of Cleveland and section 135.09(a) of the Cleveland Code,
reveals that the Chief of Police is subordinate to the Director of Public Safety.”)
(internal citations omitted).

       Our review of the Minneapolis Charter and Code of Ordinances reveals that the
Fire Chief has not been delegated final policymaking authority regarding employment
practices for the Fire Department. Rather, it reveals that the City Coordinator and
Civil Service Commission are vested with final policymaking authority regarding
employment practices for the entire city, including the Fire Department. For example,
the Minneapolis Charter establishes and authorizes the Civil Service Commission to
make, amend or repeal rules in order to promote sound personnel practices for the
entire city. Minneapolis, Minn. Charter, ch. 19 §§ 4, 7. Likewise, the City
Coordinator provides administrative and management services for the city, including
personnel. 2 Minneapolis, Minn. Code of Ordinances § 21.10. In contrast, the Fire
Chief is limited in his authority to the operations of the Fire Department. 9
Minneapolis, Minn. Code of Ordinances § 173.20. Thus, even though Chief Forte may
have had final authority to determine whom to promote to Arson Investigator and also
to design the particular procedures to be used when doing so, he was not authorized
to establish policy regarding employment practices, including policy regarding
consideration of an employee’s union status or activity in making promotion
decisions. See Greensboro, 64 F.3d at 966. As a matter of law, that authority rests
with the Civil Service Commission and the City Coordinator, not the Fire Chief. Cf.
Bechtel v. City of Belton, 250 F.3d 1157, 1158, 1161 (8th Cir. 2001) (holding no
municipal liability in light of City Administrator’s “ultimate authority to approve or




                                        -19-
rescind departmental personnel decisions” despite evidence that the “Fire Chief was
in charge of establishing rules, regulations, policies and procedures for the operation
of the fire department”).9

      In sum, without authority delegated to him, either by the city Charter or Code
of Ordinances, to make final municipal policy regarding employment practices, Chief
Forte’s final decisonmaking authority regarding whom to promote in the Fire
Department is insufficient to subject the City of Minneapolis to liability for his
actions. As such, we conclude that the district court correctly granted summary
judgment in favor of the City of Minneapolis.

III.   CONCLUSION

      For the foregoing reasons, we affirm the district court’s entry of summary
judgment as to the City of Minneapolis and reverse its entry of summary judgment as
to Chief Forte, and we remand for further proceedings consistent with this opinion.

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

      Five firefighters were considered by the fire chief for three promotions that
were available within the Minneapolis Fire Department between October 2002 and
November 2003. One unsuccessful applicant, Kathy Davison, was an outspoken critic


       9
         Captain Davison cites Angarita v. St. Louis County, 981 F.2d 1537 (8th Cir.
1992), in support of her argument for municipal liability. In Angarita, the court made
a finding that “[the Superintendent of Police] had final policymaking authority in the
St. Louis County Police Department.” Id. at 1547. Because “whether an official had
final policymaking authority is a question of state law,” Pembaur, 475 U.S. at 483,
“numberless factual scenarios . . . may come to light,” Praprotnik, 485 U.S. at 125.
We do not believe that Angarita compels a finding that Chief Forte had final
policymaking authority because we “would not be justified in assuming that municipal
policymaking authority lies somewhere other than where the applicable law purports
to put it.” Praprotnik, 485 U.S. at 126.

                                         -20-
of the fire chief, Rocco Forte. The other four candidates apparently went about their
duties quietly, expressing no public views on the fire chief’s policies or performance.
As far as the First Amendment is concerned, each applicant had an equal right to a
promotion. By reversing the district court’s dismissal of Davison’s discrimination
claim and remanding the case for trial, the majority opinion extends the law beyond
an appropriate guarantee against discrimination, and goes too far toward granting
preferential treatment to an outspoken critic of a public employer. In the process, the
majority sweeps aside several circuit precedents that guide our analysis of motions for
summary judgment in retaliation cases. Accordingly, I respectfully dissent from that
part of the opinion that reverses the judgment in favor of Forte. Because there can be
no municipal liability without an underlying constitutional violation, McCoy v. City
of Monticello, 411 F.3d 920, 922 (8th Cir. 2006), I concur in the judgment affirming
the dismissal of Davison’s claim against the city.

       Like a claim of retaliation under Title VII of the Civil Rights Act, see Okruhlik
v. Univ. of Arkansas, 395 F.3d 872, 878 (8th Cir. 2005), a claim of retaliation for the
exercise of First Amendment rights may be analyzed under two frameworks when the
court is presented with a motion for summary judgment. The most common is the
tripartite burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), often described as the “indirect” method of proof. Under this approach,
the plaintiff must first make what our court has described as a “minimal evidentiary
showing” necessary to establish a prima facie case of discrimination. E.g., Pope v.
ESA Servs., Inc., 406 F.3d 1001, 1007 (8th Cir. 2005). At that point, the burden of
production shifts to the employer to articulate a legitimate non-retaliatory reason for
the adverse employment action, but the burden of proof remains with the plaintiff to
show a genuine issue of fact that an impermissible consideration was a motivating
factor in the employment decision. An alternative framework, in which the burden of
proof shifts to the employer to show as a matter of law that he would have made the
same decision absent the plaintiff’s protected activity, see Mt. Healthy City Sch. Dist.
Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977), applies only where a plaintiff
produces “direct evidence” that the employer used the plaintiff’s speech as a criterion


                                         -21-
in the promotion decision. Graning v. Sherburne County, 172 F.3d 611, 615 n.3 (8th
Cir. 1999); accord Duffy v. McPhillips, 276 F.3d 988, 991 (8th Cir. 2002); Hudson v.
Norris, 227 F.3d 1047, 1050-51 (8th Cir. 2000); see also Carroll v. U.S. Dept. of
Labor, 78 F.3d 352, 357 (8th Cir. 1996) (“This type of Mt. Healthy/Price Waterhouse
mixed motive analysis, however, applies only in ‘dual motive’ cases where the
complainant produces evidence that directly reflects the use of an illegitimate criterion
in the challenged decision.”) (internal quotation omitted). This well-entrenched
circuit precedent is consistent with the Supreme Court’s decision in Mt. Healthy,
which did not involve a motion for summary judgment, cf. Griffith v. City of Des
Moines, 387 F.3d 733, 735-36 (8th Cir. 2004), and which, in any event, shifted the
burden of proof only after an employee produced direct evidence that he was not hired
because of protected speech on a radio program. Mt. Healthy, 429 U.S. at 282-84 &
n.1, 287. The McDonnell Douglas paradigm has been regularly applied by the district
courts of this circuit to resolve motions for summary judgment in First Amendment
retaliation cases.10

       The majority nonetheless declines to follow the methodology of Graning,
Duffy, and Hudson, and opts instead for an approach that gives the plaintiff the best
of both worlds. In concluding that Davison made a prima facie case, the majority
relies substantially on precedents that merely shifted the burden of production under
the McDonnell Douglas framework. Ante, at 11-12 (discussing Hughes v. Stottlemyre,
454 F.3d 791, 799-800 (8th Cir. 2006), and Hudson, 227 F.3d at 1051); see also
Hughes v. Stottlemyre, No. 04-4053, 2006 WL 3498325, at *1 (W.D. Mo. Dec. 4,

      10
        See, e.g., Johnson v. Ark. State Hospital, No. 4:05CV00794, 2007 WL
707341, at *2 (E.D. Ark. Mar. 5, 2007); Green v. City of St. Louis, No. 4:05CV198,
2006 WL 1663439 (E.D. Mo. June 15, 2006); Glandon v. Keokuk County Health Ctr.,
408 F. Supp.2d 759, 767 (S.D. Iowa 2005); Sale v. Mask, No. 4:04CV00219GH, 2005
WL 1771184, at *5 (E.D. Ark. July 15, 2005); Cook v. City of Elkader, No. C03-1029,
2005 WL 151937, at *16 (N.D. Iowa Jan. 21, 2005); Shepard v. Wapello County, 250
F. Supp.2d 1112, 1118 (S.D. Iowa 2003); Koehn v. Indian Hills Comty. Coll., No. Civ.
4-02-10273, 2003 WL 21976025, at *3 (S.D. Iowa Aug. 5, 2003); Vukelic v. Bartz,
245 F. Supp.2d 1068, 1077 (D. N.D. 2003).

                                          -22-
2006) (concluding on remand that McDonnell Douglas paradigm applies). Although
the prima facie case requirement under McDonnell Douglas is “not onerous” and
should not be “conflated with the ultimate issue of discrimination,” Rodgers v. U.S.
Bank, 417 F.3d 845, 852 (8th Cir. 2005), the majority treats it for purposes of
summary judgment as sufficient to prove conclusively that the employer acted with
retaliatory motive – regardless of the employer’s proffered legitimate non-retaliatory
reasons for the promotion decisions. Ante, at 11-14; but cf. Sprenger v. Fed. Home
Loan Bank, 253 F.3d 1106, 1111 (8th Cir. 2001) (holding that an employee’s attempt
to prove actual discrimination requires “more substantial evidence” than a prima facie
case, because evidence of pretext and discrimination “is viewed in light of the
employer’s justification”). After finding a prima facie case, the majority considers
only whether the employer would have made the same decision despite his allegedly
impermissible motive. Ante, at 14; see Price Waterhouse v. Hopkins, 490 U.S. 228,
254, 258 (1989) (citing Mt. Healthy as a case that “most resemble[s] this one,” and
then holding that “the defendant may avoid a finding of liability only by proving by
a preponderance of the evidence that it would have made the same decision even if it
had not taken the [impermissible factor] into account.”).

      I would instead follow our circuit’s predominant approach and apply the Mt.
Healthy paradigm only if Davison has produced direct evidence of discrimination.11

      11
         The court in Altonen v. City of Minneapolis, No. 06-3527, 2007 WL 153872
(8th Cir. June 4, 2007), concluded that the plaintiff failed to establish a prima facie
case, and thus did not ultimately shift the burden of proof to the employer based on
something less than “direct evidence” of discrimination. If it had done so, then the
opinion would have conflicted with Graning, 172 F.3d at 615 n.3, which was authored
by the same judge. Calvitt v. Minneapolis Public Schools, 122 F.3d 1112 (8th Cir.
1997), also authored by the same judge, apparently based its reversal of a grant of
summary judgment on direct evidence of retaliation. Id. at 1118 (“There is evidence
that the school district denied him a fair opportunity to be reappointed to Four Winds
because of his speech. The school district sent him a letter stating that he would not
be reassigned to Four Winds in order to ‘forestall any complaint of Whistle
Blowing.’”) (emphasis added)). The panel in Stever v. Independent School District
No. 625, 943 F.2d 845 (8th Cir. 1991), applied a “pretext” analysis (consistent with

                                         -23-
“Direct evidence” is evidence “showing a specific link between the alleged
discriminatory animus and the challenged decision, sufficient to support a finding by
a reasonable fact finder that an illegitimate criterion actually motivated the adverse
employment action.” Griffith, 387 F.3d at 736 (internal quotation omitted). This must
be “strong” evidence that “clearly points to the presence of an illegal motive.” Id.
Examples of direct evidence, in the context of sex and race discrimination,
respectively, include a statement by the employer that “no woman would be named
to a B scheduled job,” Burns v. Gadsden State Cmty. Coll., 908 F.2d 1512, 1517-19
(11th Cir. 1990), or a statement by the person responsible for promotion decisions that
“if it was his company, he wouldn’t hire any black people,” EEOC v. Alton Packaging
Corp., 901 F.2d 920, 923-25 (11th Cir. 1990). See Beshears v. Asbill, 930 F.2d 1348,
1354 (8th Cir. 1991) (favorably citing Burns and Alton Packaging). By contrast,
“statements by decisionmakers unrelated to the decisional process itself” do not
constitute “direct evidence” of discrimination. Id. at 1354 (quoting Price Waterhouse,
490 U.S. at 277 (O’Connor, J., concurring)); see Rivers-Frison v. Se. Mo. Cmty.
Treatment Ctr., 133 F.3d 616, 619 (8th Cir. 1998); Kriss v. Sprint Commc’n Co., 58
F.3d 1276, 1282 (8th Cir. 1995).

       The record generated by Davison is bereft of “direct evidence” that Chief Forte
denied her a promotion based on her exercise of First Amendment rights. Her case
is entirely circumstantial, and it is not supported by strong evidence that provides a
“specific link” between the alleged discriminatory animus and the challenged
promotion decisions. As the majority opinion demonstrates, ante, at 10-12, she relies
entirely on the temporal proximity of her speech to the promotion decisions and on


McDonnell Douglas) to conclude that the plaintiff presented a submissible case. Id.
at 853 (holding that evidence raised “a disputed issue of fact regarding whether the
District used Stever’s purported nursing expertise as a pretext for transferring her in
retaliation for her outspokenness on matters of public concern.”) (emphasis added).
There is no indication that the district courts of this circuit have interpreted Calvitt or
Stever to preclude a McDonnell Douglas analysis at the summary judgment stage in
First Amendment retaliation cases when the plaintiff relies on indirect evidence to
prove that protected speech was a motivating factor.

                                           -24-
statements by the fire chief unrelated to the decisional process itself to support an
inference of discriminatory motivation. Indeed, the majority makes no assertion that
Davison has presented the sort of direct evidence required to trigger the mixed motive
analysis of Mt. Healthy under Graning, Duffy, and Hudson.

       Because Davison has not produced direct evidence of discrimination,
McDonnell Douglas provides the proper framework for considering her claim, and the
burden of proof remains with Davison throughout. Graning, 172 F.3d at 615 n.3.12
As the record was fully developed on the motion for summary judgment, we may
dispense with the sequential steps of the burden-shifting framework and focus on the
ultimate question of whether there was sufficient evidence of discrimination to make
a submissible case of unconstitutional action by the fire chief. Jones v. United Parcel
Serv., Inc., 461 F.3d 982, 992 (8th Cir. 2006), cert. denied, 127 S. Ct. 2088 (2007);
Riser v. Target Corp., 458 F.3d 817, 820-21 (8th Cir. 2006), cert. denied, 127 S. Ct.
1382 (2007). I conclude that Davison also fails to generate a submissible case under
that framework.

      Much of the evidence cited by Davison does little to advance her claim. Of
course, the fire chief was “aware” of Davison’s protected activities, ante, at 9, but an
outspoken employee cannot make a case of discrimination simply by showing that the


      12
         That a plaintiff survives a motion for summary judgment through the indirect
McDonnell Douglas method of proof, by showing a genuine issue of fact as to
whether the employer’s explanation was pretext for retaliatory motive, does not mean
that Mt. Healthy is irrelevant to the determination of liability at trial. If the jury
ultimately rejects the employer’s legitimate non-retaliatory explanation, and concludes
that the employer was actually motivated by both permissible and impermissible
considerations, then the jury may find for the employer if he proves that he would
have made the same decision even without taking the plaintiff’s speech into account.
See Gooden v. Neal, 17 F.3d 925, 929 (7th Cir. 1994) (“When . . . the plaintiff says
that the adverse decision was based on speech, and the defendant says it was based on
something else, the jury should be told what to do if it concludes that the employer
had both motives. Mt. Healthy gives the jury that essential information.”).

                                         -25-
employer reads the newspaper or watches television. It is not significant that the fire
chief was “unhappy” with and “disheartened” by Davison’s public comments, ante,
at 6, 11, for any sentient employer – accused in the media of implementing policies
that led to the death of a citizen, ante, at 6 – presumably would experience similar
emotions. It was undoubtedly an essential part of the fire chief’s duties, as the head
of a city department, to monitor public reaction to his policies, and that he “discussed”
media coverage of opposition to his policies, ante, at 6, is therefore unsurprising and
insignificant. We have said many times that “temporal proximity” between protected
activity and an unfavorable employment decision generally is insufficient to make a
submissible case, e.g., Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir.
1999) (en banc), and that is especially true where, as here, the employee controlled the
timing of the protected activity, and caused it to coincide with employment decisions
that were scheduled independent of the protected activity. If these facts are viewed
as substantial evidence of discriminatory animus, then virtually any outspoken critic
of a public employer would be able to establish a submissible case of discriminatory
retaliation, and thereby gain an advantage over less vocal public servants in
competitive employment decisions.

        Davison also relies on evidence that after one public meeting in which she
criticized the fire department’s plan, Chief Forte was “visibly upset” by her remarks
and told the union president to “get [his] board under control.” As the district court
observed, “the full context of the quotation is not given, so it cannot be determined
what precisely Forte was referring to.” Davison v. City of Minneapolis, No. 04-3399,
2006 WL 980814, at * 4 (D. Minn. Apr. 13, 2006). Whether or not Davison was
seeking a promotion at the time, the fire chief understandably was involved in urging
the union president and the union board to support his policies. Because the comment
was within the scope of what normally could be expected of a fire chief performing
his duties, regardless of Davison’s employment status, this cryptic statement is a
slender reed on which to base a claim of retaliatory discrimination in the promotion
process.



                                          -26-
       When viewed in light of the fire chief’s explanation for the promotion
decisions, see Sprenger, 253 F.3d at 1111, the proffered showing of discrimination
does not attain “the dignity of substantial evidence” that is required to bring a case to
trial. See Taylor v. White, 321 F.3d 710, 715 (8th Cir. 2003) (internal quotation
omitted). Chief Forte made the promotion decisions after receiving a rank ordering
of three candidates who were scored by an interview panel. On the second and third
occasions, Forte promoted the candidate with the highest score from the interview
panel – Tim Thomas and Denise Bryn, respectively. For the first position, the fire
chief promoted Jennifer Cornell, who received a score of 87, rather than Thomas, who
scored 87.66, or Davison, who scored 84. When asked why he promoted Cornell
rather than Davison, the chief replied that he followed the recommendation of the
interview panel. (R. Doc. 21, Exh. A, at 56-57). He gave the same reason for
selecting Thomas and Bryn. (Id. at 67, 76). It is undisputed that on each of the three
occasions, the fire chief promoted a candidate whom the interview panel ranked
higher than Davison. There is no showing that the members of the interview panel
harbored retaliatory animus toward Davison.

       Davison and the majority make much of the fact that while Forte said that he
selected the person recommended by the interview panel “100 percent of the time,”
(id. at 57, Exh. B, at 325), he actually deviated from the panel’s recommendation
twice – that is, in 275 promotion decisions, Forte promoted the top-scoring candidate
only 99.3 percent of the time. On two occasions during his six-year tenure, Forte
promoted the second-ranked candidate. This minor discrepancy does not create a
trial-worthy case of discrimination, because the showing of pretext is weak, and the
two aberrational cases do nothing to bolster Davison’s claim that she was a victim of
discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148
(2000). It is undisputed that Davison never was the candidate ranked highest by the
unbiased interview panel. Forte did not, therefore, select a second-ranked candidate
over Davison while she was ranked first. When the chief selected Cornell for the first
position, he passed over the first-ranked Thomas. Davison was ranked number three.



                                          -27-
       Nor does the evidence support an inference that Forte’s selection of the first-
ranked candidate over Davison for the second and third positions was motivated by
discriminatory intent. In the two instances over six years when Forte did select a
second-ranked candidate, the difference in scores between the first two candidates was
de minimis. Jennifer Cornell scored a mere 0.66 points lower than Tim Thomas when
Cornell was selected. Jeffrey Westall scored one point lower than a first-ranked
candidate when Forte promoted Westall in 1999. In addition, Westall – the top-
certified candidate by the human resources department – failed in his application for
twenty-two promotions before Forte finally selected him as the second-ranked
candidate for the twenty-third position. Davison, by contrast, scored 3.66 points
below Thomas when Thomas was selected, and 20 points below Bryn when Bryn was
selected. She was unsuccessful only three times in the promotion process. Given
these widely disparate circumstances, there is no reasonable inference that Forte’s
failure to deviate from the interview panel’s recommendation – for what would have
been only the third time in at least 275 decisions – to select a second-ranked Davison
over a first-ranked Thomas or Bryn was motivated by an intent to retaliate.

       To survive a motion for summary judgment, a plaintiff must show more than
a “colorable” claim of discrimination. She must produce evidence that is
“significantly probative” of discriminatory intent. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). The evidence in this case does not meet that
threshold. It surely does not constitute strong, “direct evidence” of discrimination that
warrants treating this as a “mixed motive” case in which the burden of proof shifts to
the fire chief. To the contrary, there is every reason on this record to believe that
Jennifer Cornell, Tim Thomas, and Denise Bryn earned and deserved the promotions
that they received. I would therefore affirm the judgment of the district court.
                        ______________________________




                                          -28-
