                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 01-2749
                                 ___________

Jerri Johnson; Dennis Washington;       *
Rommie Moss; Willie Mathis,             *
                                        *
                   Appellants,          *
                                        *
       v.                               *
                                        * Appeal from the United States
The City of Hope, Arkansas, A           * District Court for the Western
Public Body Corporate; William          * District of Arkansas.
Brinkworth, Individually and in His     *
Official Capacity as Chief of Police    *     [UNPUBLISHED]
of the City of Hope, AR; James          *
Purtle, Former Chief of Police of       *
the City of Hope Police Department,     *
                                        *
                   Appellees.           *
                                   ___________

                           Submitted: April 16, 2002

                                Filed: April 23, 2002
                                 ___________

Before HANSEN, Chief Judge, McMILLIAN and FAGG, Circuit Judges.
                             ___________

PER CURIAM.
        Jerri Johnson, Dennis Washington, Rommie Moss, and Willie Mathis (the
plaintiffs) appeal the district court’s* adverse grant of summary judgment on their
racial employment discrimination claims brought against the Hope, Arkansas Police
Department (HPD). The plaintiffs are African-American employees or former
employees of HPD. The district court granted HPD’s motion for summary judgment,
reaffirming on reconsideration. We review the grant of summary judgment de novo,
affirming the district court if material facts are not in dispute and the moving party
is entitled to judgment as a matter of law. Turner v. Holbrook, 278 F.3d 754, 757 (8th
Cir. 2002). We examine each plaintiff’s claim in turn.

        Johnson alleges she was constructively demoted on account of her race. When
HPD changed its administrative structure to accommodate a new 911 emergency call
system, HPD eliminated the supervisory dispatcher position held by Johnson, but
continued to employ Johnson in a similar position without decreasing her pay,
seniority, or benefits. Thus, Johnson suffered no adverse employment action.
Ledergerber v. Stangler, 122 F.3d 1142, 1144-45 (8th Cir. 1997). Further, Johnson
is not similarly situated to the employee who now supervises dispatching because he
is an HPD lieutenant and Johnson is not a certified law enforcement official. We
affirm the district court’s grant of summary judgment to HPD on Johnson’s claim of
constructive demotion.

       Washington and Moss both allege they were not promoted because of their
race, and also that they were subjected to retaliatory discharge after each filed a claim
with the Equal Employment Opportunity Commission (EEOC) and publicly criticized
HPD. The district court dismissed both failure to promote claims, concluding neither
Washington nor Moss established a prima facie case because neither applied for the
position he claims he was denied. Gentry v. Georgia-Pacific Corp., 250 F.3d 646,


      *
       The Honorable Harry F. Barnes, United States District Judge for the Western
District of Arkansas.

                                          -2-
650 (8th Cir. 2001). Under the law of this circuit, however, a “formal application for
a job opening will not be required to establish a prima facie case of discrimination ‘if
the job opening was not officially posted or advertised and . . . the employer was
aware of the plaintiff’s interest in the job notwithstanding the plaintiff’s failure to
make a formal application.’” Id. at 652 (citation omitted).

       The district court opinion and the record do not make clear whether HPD
“officially posted or advertised” the open positions Washington and Moss wanted.
Summary judgment was appropriate on other grounds, though. Because Washington
was not similarly situated to the recipient of the relevant promotion–who had the
required one year of supervisory experience Washington lacked–Washington cannot
establish a prima facie case. Id. at 650. As for Moss, even if HPD did not formally
post or advertise the position he was not promoted to, summary judgment is
appropriate because Moss does not contend his supervisor had actual knowledge of
Moss’s interest in the position.

       Washington and Moss’s retaliatory discharge claims fail because neither
plaintiff can establish a causal connection between his protected speech and the
termination of his employment. Graning v. Sherburne County, 172 F.3d 611, 615 (8th
Cir. 1999). Further, both Washington and Moss were terminated for legitimate, non-
discriminatory reasons. Id. Washington filed an EEOC claim in October 1996 and
HPD conducted a thorough investigation into Washington’s failure to follow HPD
policy before terminating him on this basis in June 1998. After Moss filed an EEOC
claim, the Arkansas State Police began an investigation which led to three felony
charges being filed against Moss in state court and to Moss’s termination by HPD.
We affirm the district court’s grant of summary judgment to HPD on the failure to
promote and retaliatory discharge claims brought by Washington and Moss.

       Mathis alleges he was constructively discharged from HPD because of its
racially hostile work environment. The district court concluded Mathis’s working

                                          -3-
conditions were not so intolerable that his resignation was reasonably foreseeable.
Tidwell v. Meyer’s Bakeries, Inc., 93 F.3d 490, 494 (8th Cir. 1996). In support of this
conclusion, the district court noted Mathis was reassigned from housing authority to
patrol duty; he passed a polygraph test as part of an investigation which was then
dismissed; he received a three-day suspension for being late to a parole revocation
hearing when his tardiness caused the petition for revocation to be denied; the local
newspaper published an article about this parole hearing on its own initiative;
Mathis’s pay and benefits never decreased during his employment with HPD; and
Mathis accepted a higher-paying job before resigning from HPD. On appeal, Mathis
raises additional claims that his co-workers told racist jokes, used racist language, and
directed racial epithets at him, and his supervisors failed to remedy this situation. Id.
We do not reach these claims because Mathis’s affidavit states Mathis never informed
his supervisors about racial discrimination by his co-workers, and so HPD had no
chance to remedy these aspects of the allegedly racially hostile environment. We
affirm the district court’s conclusion that Mathis fails to state a claim for constructive
discharge as a matter of law.

      In sum, we affirm for the reasons stated above.

      A true copy.

             Attest:

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




                                           -4-
