                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 18-3298
                          ___________________________

                                     Randy Henry

                         lllllllllllllllllllllPlaintiff - Appellant

                                            v.

 J. Bret Johnson, in his individual capacity; Corey Schoeneberg, in his individual
  capacity; Stacey Mosher, in her individual capacity; Ronald K. Replogle, in his
individual capacity; Luke Vislay, in his individual capacity; Sarah Eberhard, in her
   individual capacity; Gregory D. Kindle, in his individual capacity; Sandra K.
 Karsten, in her individual capacity; Gregory K. Smith, in his individual capacity;
Malik A. Henderson, in his individual capacity; Kemp A. Shoun, in his individual capacity

                        lllllllllllllllllllllDefendants - Appellees
                                        ____________

                      Appeal from United States District Court
                for the Western District of Missouri - Jefferson City
                                  ____________

                           Submitted: November 13, 2019
                             Filed: February 20, 2020
                                  ____________

Before SHEPHERD, GRASZ, and KOBES, Circuit Judges.
                           ____________

GRASZ, Circuit Judge.
       Sergeant Randy Henry sued eleven members or former members of the
Missouri State Highway Patrol (“MSHP”) after adverse employment actions were
allegedly taken against him in retaliation for protected First Amendment speech. The
district court1 granted summary judgment to each of the eleven defendants on all
seven claims. Henry appeals the grant of summary judgment for three of these
claims. We affirm.

                                   I. Background

       This suit arises out of the May 2014 drowning of twenty-year-old Brandon
Ellingson while he was in MSHP custody on the Lake of the Ozarks. Ellingson’s
death resulted in a series of civil and criminal cases and internal MSHP investigations
of the drowning. While these investigations were occurring, MSHP Sergeant Randy
Henry spoke out several times about MSHP’s role in the drowning.

       In October 2014, Henry testified twice before a special committee of the
Missouri legislature organized to look into a 2011 merger of the Missouri Highway
Patrol with the Missouri Water Patrol — the combined entity now known as MSHP.
Henry first testified in his official capacity as an MSHP member, and later testified
in plain clothes as a private citizen. In June 2015, Henry also gave deposition
testimony for a civil lawsuit concerning the Ellingson case. These instances make up
what will be referred to as Henry’s “testimonial speech.”

      Henry also spoke numerous times to a member of the press and members of the
Ellingson family about what he claimed was an internal MSHP cover-up of the
drowning. Henry also raised the possibility of internal MSHP corruption during the


      1
       The Honorable Willie J. Epps, Jr., United States Magistrate Judge for the
Western District of Missouri, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).

                                         -2-
investigation of the Ellingson drowning by insinuating the special prosecutor in the
case may have been involved in a quid pro quo with MSHP to exonerate her son in
a rape investigation. Henry posted this allegation on a Facebook page dedicated to
Ellingson. The social media post outlined how the son was cleared of the rape
allegation after a DNA analysis was undertaken by MSHP, and suggested the special
prosecutor had a conflict of interest because of this DNA test.

       The special prosecutor interviewed Henry as a part of her MSHP investigation
and during the interview he admitted to spreading information about her son. After
her interview with Henry, she recused herself from the Ellingson investigation. This
caused both a prolonged delay in the investigation and increased costs.

      In February 2015, Henry was ordered to attend a mandatory counseling
evaluation through the Employee Assistance Program (“EAP”). The mandatory
counseling evaluation arose after at least two individuals expressed concern about
how Henry was coping with the Ellingson matter.

      In March 2015, the special prosecutor filed a complaint against Henry which
was investigated by Appellee Corey Schoeneberg. Schoeneberg determined Henry
had violated three MSHP General Orders, which led to two prosecutors asserting they
would no longer prosecute charges brought by Henry due to concerns about his
trustworthiness and integrity.

       In June 2015, Henry’s direct commander submitted a Betterment of the Patrol
Transfer Request for Henry to be transferred out of Troop F. This request was
approved by Appellee J. Bret Johnson, who was the superintendent at the time.
Formal charges and an offer of discipline were served on Henry later that month.
This offer of discipline was a reduction in rank from sergeant to corporal. Henry
rejected this offer, pursued an appeal, requested three continuances, and then retired
before a hearing could take place.

                                         -3-
      A later investigation of MSHP by a second special prosecutor regarding the
Ellingson drowning concluded Henry’s allegations of MSHP misconduct were
unsubstantiated.

      Henry ultimately filed a seven count complaint against eleven defendants
including Count One, a 42 U.S.C. § 1983 claim for retaliation for protected First
Amendment speech activity; Count Three, a conspiracy to violate Henry’s civil rights;
and Count Four, a § 1983 failure to supervise claim. The district court granted the
defendants’ motion for summary judgment on all seven claims against all eleven
defendants. Henry now appeals this grant of summary judgment regarding Counts
One, Three, and Four.

                                    II. Analysis

                              A. Standard of Review

       We review de novo a grant of summary judgment.2 Atkinson v. City of
Mountain View, 709 F.3d 1201, 1207 (8th Cir. 2013). In a § 1983 action, we will
reverse an award of summary judgment in favor of a public official in his or her
individual capacity only if a reasonable jury could find the official’s actions
performed under the color of state law “violated ‘a right secured by the Constitution
and laws of the United States.’” Id. (quoting Cook v. City of Bella Villa, 582 F.3d
840, 848 (8th Cir. 2009)). We must view all evidence and reasonable inferences in
the light most favorable to the non-moving party. Id.



      2
       On appeal Henry argues the district court misapplied the summary judgment
standard by relying on facts he asserts are in dispute. We disagree. The district court
properly applied both the local and federal summary judgment standards by finding
there were no genuinely disputed facts, and by relying on such undisputed facts in the
order.

                                         -4-
         B. Unconstitutional Retaliation for Protected Speech Activity

       Henry alleges unlawful retaliation by MSHP for protected speech, in violation
of the First Amendment. In response, the appellees claim they are entitled to
summary judgment based on qualified immunity. As with every qualified immunity
analysis, we are tasked with a two-part inquiry to determine whether (1) a
constitutional violation occurred, and (2) whether the right in question was clearly
established at the time of the violation. Nord v. Walsh Cty., 757 F.3d 734, 738 (8th
Cir. 2014). The district court reasoned Henry failed to demonstrate a First
Amendment violation, and therefore the eleven defendants were entitled to qualified
immunity. We agree.

      Our first inquiry is whether Henry has established a First Amendment violation.
“To establish a prima-facie case of unlawful retaliation for protected speech,” Henry
must prove three elements. Davenport v. Univ. of Ark. Bd. of Trs., 553 F.3d 1110,
1113 (8th Cir. 2009). First, Henry must prove “he engaged in an activity protected
by the First Amendment.” Id. Second, Henry must prove MSHP “took an adverse
employment action against him.” Id. And third, Henry must prove the “protected
speech was a substantial or motivating factor in [MSHP’s] decision to take the
adverse employment action.” Id. We address each element in turn.

                      1. Constitutionally Protected Speech

        Henry alleges, and the appellees do not contest on appeal, that Henry’s
testimonial speech is protected speech activity. As such the testimonial statements
satisfy element one. However, Henry also argues his remaining speech activity —
speaking to news reporters, directly to the Ellingson family, and on social media —
that is, his non-testimonial speech, addressed a public concern. In our view, however,
he fails to show the remaining speech was constitutionally protected.



                                         -5-
       Under Eighth Circuit precedent, we must proceed through a multi-step analysis
to determine if Henry’s non-testimonial speech is entitled to First Amendment
protection. First, we must “determin[e] whether the employee spoke as a citizen on
a matter of public concern.” Hemminghaus v. Missouri, 756 F.3d 1100, 1110 (8th
Cir. 2014) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). “If the answer
is yes, then the possibility of a First Amendment claim arises.” Id. at 1111 (quoting
same).

       Next, once the possibility of a First Amendment claim arises, “we must ask
whether [MSHP] has produced evidence to indicate the speech had an adverse impact
on the efficiency of the [employer’s] operations.” Id. (second alteration in original)
(quoting Lindsey v. City of Orrick, 491 F.3d 892, 900 (8th Cir. 2007)). “Where there
is no evidence of disruption, resort to the Pickering factors is unnecessary because
there are no government interests in efficiency to weigh against First Amendment
interests.”3 Id. (quoting Belk v. City of Eldon, 228 F.3d 872, 881 (8th Cir. 2000)).

       Finally, “if such an adverse impact is found, the court engages in the Pickering
balancing inquiry.” Id. at 1111. This analysis helps to determine “whether the
relevant government entity had an adequate justification for treating the employee
differently from any other member of the general public.” Garcetti, 547 U.S. at 418.
The Pickering test strives to help courts arrive at a balance between the interests of
the employee as a citizen commenting on public matters and the interests of the
governmental employer in promoting the efficiency of its public services through
such employees. Kincade v. City of Blue Springs, 64 F.3d 389, 395 (8th Cir. 1995).




      3
          Pickering v. Bd. of Educ., 391 U.S. 563 (1968).

                                          -6-
                   a. Speaking on a Matter of Public Concern

       Here, it is undisputed that Henry spoke as a private citizen, not an employee,
while making his non-testimonial statements. Therefore, to proceed we must
determine if Henry’s non-testimonial speech was on a matter of public concern.
When the speech in question “involves a matter of political, social or other concern
to the community [it] is of public concern.” Calvit v. Minneapolis Pub. Sch., 122
F.3d 1112, 1117 (8th Cir. 1997). “Whether an employee’s speech addresses a matter
of public concern must be determined by the content, form, and context of a given
statement.” Connick v. Myers, 461 U.S. 138, 147–48 (1983). The form and content
help us to determine whether the employee speaks as “a concerned citizen informing
the public” or “merely as an employee speaking about internal practices relevant only
to fellow employees.” Calvit, 122 F.3d at 1117.

      In this case, Henry’s speech, taken in the light most favorable to him, was of
public concern. The statements on social media, to the Ellingson family, and to the
newspaper all concerned the integrity of MSHP and the judicial system. Henry also
spoke critically of the internal investigation, suggesting purported corruption in the
prosecutor’s office. Such statements are related to the integrity of the highway patrol
and prosecutorial division of MSHP — both important governmental functions. We
therefore conclude his non-testimonial speech addressed matters of public concern.

       Because Henry spoke as a citizen on matters of public concern the possibility
of a First Amendment claim arises and we must proceed to ask whether MSHP has
produced evidence of an adverse impact on the efficiency of its operations.

                b. Adverse Impact on Governmental Efficiency

      Next, a public employer must “with specificity, demonstrate the speech at issue
created workplace disharmony, impeded the plaintiff’s performance, or impaired

                                         -7-
working relationships.” Lindsey, 491 F.3d at 900. However, it is not necessary to
show actual disruption. An employer need not “allow events to unfold to the extent
that the disruption of the office and the destruction of working relationships is
manifest before taking action.” Connick, 461 U.S. at 152. Courts will give
“substantial weight to government employers’ reasonable predictions of disruption,
even when the speech involved is on a matter of public concern.” Waters v.
Churchill, 511 U.S. 661, 673 (1994). Our precedent has noted how “[l]aw
enforcement agencies, more than other public employers, have special organizational
needs that permit greater restrictions on employee speech.” Morgan v. Robinson, 920
F.3d 521, 526 (8th Cir. 2019) (en banc) (quoting Buzek v. Cty. of Saunders, 972 F.2d
992, 995 (8th Cir. 1992)).

       Here, MSHP has shown sufficient evidence of disruption to the efficiency of
its operations. The undisputed facts demonstrate that two prosecutors refused to take
Henry’s cases citing to a lack of trust and integrity issues with Henry. If prosecutors
will no longer press charges from a particular police officer, this would seriously
impede the agency’s ability to perform its function. Further, the investigation by
Appellee Schoeneberg concluded Henry violated three MSHP General Orders, two
relating to workplace disruption and inefficiency. Specifically, Schoeneberg’s
investigation concluded Henry’s behavior violated a General Order prohibiting the
spread of “malicious rumors or lies, disrupt the workplace, or destructively criticize
or maliciously ridicule the Patrol . . . .” When, as here, a government employer relies
substantially on the working relationships among its members, trust and morale are
of prime importance. This reality is only heightened for law enforcement officers
who may have to rely on one another in life-threatening circumstances.

       Because MSHP demonstrated a deterioration in trust within Henry’s troop and
that Henry engaged in unprofessional behaviors that violated General Orders, MSHP
has demonstrated Henry’s speech did in fact create disharmony and impair working
relationships. The consequences of Henry’s actions were “sufficient evidence of

                                         -8-
disruption.” Hemminghaus, 756 F.3d at 1113 (quoting Bailey v. Dep’t of Elementary
& Secondary Educ., 451 F.3d 514, 521 (8th Cir. 2006)).

                              c. Pickering Balancing

      Under the Supreme Court’s precedent in Pickering, we must take into account
“a number of interrelated factors . . . in balancing the competing interests of
government-employer and citizen-employee.” Id. at 1113. Such factors include:

      (1) the need for harmony in the office or work place; (2) whether the
      government’s responsibilities require a close working relationship to
      exist between the plaintiff and co-workers when the speech in question
      has caused or would cause the relationship to deteriorate; (3) the time,
      manner, and place of the speech; (4) the context in which the dispute
      arose; (5) the degree of public interest in the speech; and (6) whether the
      speech impeded the employee’s ability to perform his or her duties.

Id. at 1114. As we have repeatedly recognized, “[m]ore so than the typical
government employer, the [Missouri Highway] Patrol has a significant government
interest in regulating the speech activities of its officers in order to promote
efficiency, foster loyalty and obedience to superior officers, maintain morale, and
instill public confidence in the law enforcement institution.” Morgan, 920 F.3d at
526 (second alternation in the original) (quoting Crain v. Bd. of Police Comm’rs, 920
F.2d 1402, 1411 (8th Cir. 1990)).

       Henry’s allegations evoking a high degree of public interest weigh in Henry’s
favor. The remaining Pickering factors, however, favor MSHP. First, the manner
and place of Henry’s speech weighs heavily in MSHP’s favor. Henry spoke directly
to the Ellingson family during the internal investigation, and he spread
unsubstantiated information by repeatedly speaking to a news reporter and on social
media. Second, unlike a legitimate whistleblower, Henry did not substantiate the
allegations — especially those involving the special prosecutor and her son — before

                                         -9-
spreading the information to the internet. Third, Henry’s role as a police officer is
closely tied both to the officers in his troop and the prosecutors who brought charges
connected to officer arrests. It was essential for Henry to work closely with the
appellees. The evidence reveals the accusations Henry shared online and to the
family deteriorated relationships with prosecutors, as evidenced by the two who
refused to take his cases. Further, the transfer request demonstrates Henry’s
deteriorating ability to work with his fellow police officers. And finally, the context
of this dispute — during a sensitive internal investigation and amid media attention
— further tips the scale toward MSHP’s interests.

       The cumulation of these factors weigh in favor of MSHP’s interest in efficiency
and indicate Henry’s speech activity was more likely than not impeding his ability to
perform his job duties as a police officer. As such, we conclude Henry’s non-
testimonial speech activity was unprotected. Therefore, no First Amendment
violation occurred. The defendants are entitled to qualified immunity regarding
Henry’s speech to the Ellingson family, on social media, and to the news reporter
because Henry failed to show a constitutional violation. Our analysis of Henry’s
claim of retaliation based on constitutionally protected speech ends here regarding the
non-testimonial speech.

                         2. Adverse Employment Action

       We now proceed to element two of the prima facie case for unlawful retaliation
for protected speech only as to Henry’s protected testimonial speech. Henry alleges
the adverse employment actions taken against him by MSHP include the mandatory
EAP counseling evaluation and his proposed demotion and transfer. The defendants
do not contest the initial referral to EAP nor the later demotion and transfer offer
arrangement constituted adverse employment actions. Therefore, we conclude the
second element of the prima facie case is satisfied.



                                         -10-
                      3. Substantial or Motivating Factor

       Finally, we must determine whether Henry’s protected speech activity — the
testimonial speech — was a substantial or motivating factor in MSHP’s decision to
take the aforementioned adverse employment actions. Davison v. City of
Minneapolis, 490 F.3d 648, 655 (8th Cir. 2007). While causation is generally a jury
question, this court must decide if sufficient evidence exists to create a factual
question for the jury. Morris v. City of Chillicothe, 512 F.3d 1013, 1018 (8th Cir.
2008). To make this determination we must undertake an additional three-part,
burden-shifting inquiry: First, “a public employee must show that he suffered an
adverse employment action that was causally connected to his participation in a
protected activity.” Id. at 1018–19. If the employee so demonstrates, “the burden
shifts to the employer to show a legitimate, nondiscriminatory reason for his or her
actions.” Id. at 1019. If the employer establishes such a reason, “the burden shifts
back to the employee to show that the employer’s actions were a pretext for illegal
retaliation.” Id.

       Because Henry and the appellees agree Henry suffered an adverse employment
action, we will assume without deciding Henry met his initial burden, even though
the causation question is not without doubt. The burden thus shifts to MSHP to show
a legitimate, nondiscriminatory reason for these adverse employment actions.

       Because Henry’s non-testimonial speech was unprotected by the First
Amendment, such speech may serve as a legitimate ground for an adverse
employment action. The facts show Henry repeatedly discussed serious and
unverified allegations of corruption within MSHP, was less than candid with the
special prosecutor, and disseminated unverified allegations of corruption. Each of
these unprotected speech activities could constitute a legitimate, nondiscriminatory
reason for MSHP to take an adverse employment action against Henry. Additionally,
the mandatory EAP counseling appointment occurred as a response to two individuals

                                       -11-
expressing concern about Henry’s mental health — a legitimate reason for such an
assignment.4 As such, we determine MSHP met its burden to show a legitimate
reason for the actions taken against Henry. As a result, the burden shifts back to
Henry to show pretext.

       For Henry to prevail then, he must establish a factual question exists as to
whether MSHP’s reasons were mere pretext, a difficult burden to prove “because
evidence of pretext and discrimination is viewed in the light of the employer’s
justifications.” Id. at 1019. Such a pretext typically may be shown by offering
evidence the employer’s explanation lacked basis in fact, evidence the employee
recently received favorable reviews, evidence the employer’s proffered reason for its
employment decision changed over time, or with evidence the employer treated
similarly situated employees who engaged in the protected activity more favorably.
Ebersole v. Novo Nordisk, Inc., 758 F.3d 917, 935 (8th Cir. 2014).

       Here, MSHP’s disciplinary actions were based in fact: they specifically related
to Henry’s posting to social media, speaking to the news reporter, and conversing
with the Ellingson family. These occurrences are established and undisputed. And
although Henry did receive a generally positive review on January 24, 2015, this
review was given before the full extent of Henry’s conduct became known to MSHP.
And, even in this favorable review it noted, “there always seems to be someone
[Henry] is upset with or that is upset with him.” There is no evidence to support an
inference that MSHP’s reasons for the adverse action changed over time.

      Henry argues three other MSHP members were retaliated against for speaking
out against MSHP. But Henry has failed to show that these three individuals were
similarly situated to himself other than asserting they are MSHP members. To satisfy


      4
      This court also assumes, without deciding, the referral of an employee to a
mandatory mental health evaluation constitutes an adverse employment action.

                                        -12-
this prong, “comparators ‘must have dealt with the same supervisor, have been
subject to the same standards, and engaged in the same conduct without any
mitigating or distinguishing circumstances.’” Id. at 925. Henry presented no
evidence these other individuals met any of these criteria.

       In summary, the appellees are entitled to qualified immunity with regard to
Count One because Henry has failed as a matter of law to show a constitutional
violation. Much of Henry’s speech is unprotected because it fails the Pickering
balancing test as MSHP’s interests in efficiency and harmony overrides the public’s
interest in the information. The remaining testimonial speech was not a substantial
or motivating factor in the adverse employment actions against Henry.

                   C. Conspiracy and Inadequate Supervision

       Our conclusion regarding Henry’s First Amendment claim dictates the result
as to his conspiracy and inadequate supervision claims. Under our precedent, Henry
is “required to prove a deprivation of a constitutional right or privilege in order to
prevail on a § 1983 civil conspiracy claim.” Askew v. Millerd, 191 F.3d 953, 957 (8th
Cir. 1999). Similarly, a failure to supervise claim brought under § 1983 will
“automatically fail for lack of an underlying constitutional violation.” Mendoza v.
U.S. Immigration & Customs Enf’t, 849 F.3d 408, 419–20 (8th Cir. 2017). We
therefore hold Henry’s civil conspiracy and failure to supervise claims fail as a matter
of law.

                                   III. Conclusion

      For the foregoing reasons, we affirm the judgment of the district court.
                      ______________________________




                                         -13-
