                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 02-2090
                               ________________

Matt W. Brown,                           *
                                         *
      Appellant,                         *
                                         *      Appeal from the United States
      v.                                 *      District Court for the Western
                                                District of Missouri
                                         *
Missouri State Highway Patrol,           *
                                                [UNPUBLISHED]
                                         *
      Appellee.                          *

                               ________________

                               Submitted: November 4, 2002
                                   Filed: January 22, 2003
                               ________________

Before McMILLIAN and MELLOY, Circuit Judges, and LONGSTAFF1, District
Judge.
                        ________________

LONGSTAFF, District Judge.



      1
        The Honorable Ronald E. Longstaff, Chief Judge, United State District Court
for the Southern District of Iowa, sitting by designation.
I.     BACKGROUND
       Plaintiff, Matt Brown, is an employee of defendant, the Missouri State
Highway Patrol (“MSHP”). In 1998, Plaintiff filed a Title VII action against
defendant (“the first lawsuit”), alleging that he was discriminated against on the basis
of his race and retaliated against for exercising his First Amendment rights.
Specifically, plaintiff challenged the MSHP’s decision not to promote him to the
position of captain; the MSHP’s denial of his request for relocation from Jefferson
City to St. Louis; and his reassignment from the position of lieutenant to the position
of administrative lieutenant.

      Defendant denied plaintiff’s allegations and maintained that plaintiff’s race
played no part in its employment decisions. It noted that since he began working for
the MSHP in 1975, plaintiff was promoted three times: to corporal on July 1, 1987,
sergeant on June 1, 1989, and lieutenant in the Gaming Division on May 1, 1994.
Defendant further noted that its decision-maker, Colonel Wilhoit, had promoted a
number of other African Americans. According to MSHP staff, the employment
decisions upon which plaintiff based his complaint resulted from plaintiff’s
inconsistent job performance and insubordination.

       On July 13, 1999, the district court for the Western District of Missouri granted
defendant’s motion to dismiss the First Amendment claim, because plaintiff “alleged
no facts from which a reasonable inference [could] be drawn that he spoke out on any
matter, let alone a matter of public concern.” Brown v. Missouri State Highway
Patrol, No. 98-4109-CV-C-9, slip op. at 3-4 (W.D. Mo. 1999). On February 9, 2000,
the district court issued an order granting in part and denying in part defendant’s
motion for summary judgment. The court denied the motion as to plaintiff’s claims
that he had been discriminated against when defendant refused to allow him to
relocate to St. Louis. It also denied the motion as to plaintiff’s claim that he had been
discriminatorily reassigned to the position of administrative lieutenant. However, the

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court granted summary judgment for the defendant on plaintiff’s failure-to-promote
claim. On May 17, 2000, the remaining claims proceeded to trial. A jury found in
favor of the MSHP on both counts.

       Meanwhile, on February 28, 2000, plaintiff filed a second lawsuit in the U.S.
District Court for the Eastern District of Missouri, again claiming discriminatory
failure to promote, retaliatory failure to promote, and retaliation for the exercise of
First Amendment rights. In his original Complaint in the second lawsuit, plaintiff
based his claims solely on the February 1, 1999 promotion of James Meissert to the
position of captain.2 On November 2, 2000, plaintiff filed a Second Amended
Complaint in which he set forth the following additional promotions that he claims
he was wrongfully denied: 1) September 1, 1999, involving the promotion of James
McNiell; 2) October 1, 1999, involving the promotion of John W. Elliot; 3) March
1, 2000, involving the promotion of Bradley Jones3; 4) February 1, 2000, involving
the promotion of Dale Schmidt; and 5) February 1, 2000, involving the promotion of
Robert Bloomberg. Plaintiff had not challenged these promotions in the first lawsuit.

       On January 1, 2001, following a motion by defendant, the second lawsuit was
transferred to the district court in the Western District of Missouri. The district court4
granted summary judgment in favor of defendant, holding that plaintiff’s claims were
barred by the doctrine of res judicata. The court further held that even if not



      2
        The Meissert promotion was one that plaintiff identified in his interrogatory
responses in the first lawsuit, and it was one of the promotions covered by the district
court’s February 9, 2000 Order granting summary judgment in favor of defendant on
the failure-to-promote claim.
      3
          Plaintiff later withdrew his challenge to the Jones promotion.
      4
       Scott O. Wright, Senior United States District Judge for the Western District
of Missouri.
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procedurally barred, plaintiff’s claims failed on the merits. We affirm, in part on
procedural grounds and in part on the merits.



II.    DISCUSSION
       We review a grant of summary judgment de novo, applying the same standard
as the district court. See Rabushka ex rel. United States v. Crane Co., 122 F.3d 559,
562 (8th Cir. 1997). We will affirm if the evidence, viewed in the light most favorable
to the nonmoving party, shows that no genuine issue of material fact exists and that
the moving party is entitled to judgment as a matter of law. See Rose-Maston v.
NME Hospitals, Inc., 133 F.3d 1104, 1107 (8th Cir. 1998); FED. R. CIV. P. 56(c).
Although a party moving for summary judgment has the burden of demonstrating the
absence of any genuine issue of material fact, a nonmoving party may not rest upon
mere denials or allegations, but must instead set forth specific facts sufficient to raise
a genuine issue for trial. See Id.

•      Failure to Promote5
       Plaintiff claims defendant refused to promote him to captain because of his
race. To establish a prima facie case of discriminatory failure to promote, a Title VII
plaintiff must demonstrate that: (1) he is a member of a protected group; (2) he was
qualified and applied for a promotion to an available position; (3) he was rejected;
and (4) a similarly qualified employee, not part of a protected group, was promoted
instead. Rose-Maston v. NME Hospitals, Inc., 133 F.3d 1104, 1109 (8th Cir. 1998)
(citing Shannon v. Ford Motor Co., 72 F.3d 678, 682 (8th Cir. 1996). As the district
court held, plaintiff failed to establish that he was “similarly qualified” for any
captain promotions. In his brief, plaintiff states only that he “was qualified for the
positions” (Appellant’s Brief at 24), but nowhere does he suggest that he is equally

      5
        In light of our resolution of this issue on the merits, analysis of any procedural
bar to this claim is unnecessary.

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qualified or “similarly qualified.”6 Plaintiff did not even investigate the qualifications
of the individuals who were promoted when he deposed them. Although plaintiff
provided the court with personnel records of the candidates that were promoted, there
is no evidence that these records were considered by the MSHP staff in making its
captain promotion decisions. In fact, the record suggests the contrary. We find that
the evidence submitted by plaintiff is insufficient to establish that he was “similarly
qualified.” Consequently, the district court’s order of summary judgment on this
claim was appropriate.

•      Retaliation Claims
       The Court will next consider plaintiff’s retaliation claims. To establish a prima
facie case of retaliation, plaintiff must establish that he engaged in protected activity,
that there was a subsequent adverse action by the employer, and that there is a causal
connection between the protected activity and the subsequent adverse action. 42
U.S.C. § 2000e-3(a); See also Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th
Cir. 1999). As the Eighth Circuit has explained:

      An adverse employment action is a tangible change in working
      conditions that produces a material employment disadvantage.
      Termination, reduction in pay or benefits, and changes in employment
      that significantly affect an employee’s future career prospects meet this
      standard, but minor changes in working conditions that merely
      inconvenience an employee or alter an employee’s work responsibilities
      do not.

 Spears v. Missouri Dep’t of Corr. & Human Res., 210 F.3d 850, 853 (8th Cir. 2000)
(internal citations omitted).



      6
        The Court notes that plaintiff actually may have been less qualified, as the
record indicates he was the only candidate who had not attended a management or
advanced development course.
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       After plaintiff filed charges with the EEOC in November 1997, he claims the
following occurred: 1) his performance ratings were lowered; 2) staff falsely accused
him of insubordination; 3) his superiors violated the chain of command by giving
employees under plaintiff instructions and duties to perform without informing
plaintiff; 4) he was not promoted to captain; and 5) staff failed to notify him of the
reasons he was not considered for captain. Even assuming plaintiff can establish
causation, none of these actions constitutes “adverse employment action.” The
lowered performance ratings, the false accusations of insubordination, the chain of
command violation, and the failure to explain to plaintiff the reasons he was not
considered for a promotion do not themselves rise to the level of a material
employment disadvantage. See, e.g., Spears, 210 F.3d at 854 (“A poor performance
rating does not itself constitute an adverse employment action because it has no
tangible effect upon the recipient’s employment.”). Without more, these allegations
are insufficient to state a claim under Title VII.

       The promotion allegation also is insufficient. Where a plaintiff’s retaliation
claim is based upon not receiving a promotion, plaintiff bears the burden of proving
that the person who received the promotion was similarly or equally qualified. As
discussed above, Mr. Brown failed to produce such evidence. This flaw was critical
to plaintiff’s failure to promote claim, and it is equally fatal to his retaliatory failure
to promote claim.

       Lastly, the Court turns to plaintiff’s assertion that he was retaliated against for
exercising his First Amendment rights. We find that this claim is procedurally barred
by res judicata. Res judicata, or claim preclusion, applies where a final judgment
involving the same cause of action and the same parties is entered by a court of
competent jurisdiction. See Lundquist v. Rice Memorial Hospital, 238 F.3d. 975, 977
(8th Cir. 2001). Each of these elements is satisfied in this case. Plaintiff’s First
Amendment claim in the first lawsuit was dismissed with prejudice by a court having
jurisdiction. The First Amendment claim filed in this suit is identical to the one filed

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by plaintiff in the first lawsuit. Thus, the district court properly entered summary
judgment in favor of defendant.



III.    CONCLUSION
        Plaintiff did not establish a prima facie case for his failure-to-promote claim
or his retaliation claim. His First Amendment retaliation claim is procedurally barred.



       The judgment of the district court is AFFIRMED.

A true copy.

       Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




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