                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-4203
                                    ___________

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

                             Submitted: June 14, 2007
                                Filed: October 26, 2007
                                 ___________

Before BYE, RILEY, and BENTON, Circuit Judges.
                            ___________

BYE, Circuit Judge.

       David Hughes was a sergeant with the Missouri State Highway Patrol (MSHP)
until he was demoted and transferred. Hughes brought a 42 U.S.C. § 1983 action
against Roger D. Stottlemyre in his official capacity as MSHP Superintendent,1 his
immediate supervisors, Captain Vincent Ellis and Lieutenant James Ripley,


      1
       Stottlemyre is no longer a party to this action.
individually, and Eric Wilhoit, an investigator in the MSHP's Professional Standards
Division, individually. Hughes claimed Ellis, Ripley and Wilhoit violated his First
Amendment free speech rights by retaliating against him for opposing proposed
changes in MSHP policy. The district court2 granted defendants' motion for summary
judgment finding Hughes failed to discredit the legitimate non-retaliatory reasons
offered for his demotion and transfer. Hughes appeals and we affirm.

                                           I

       The facts relevant to this appeal, viewed in the light most favorable to Hughes,
Dush v. Appleton Elec. Co., 124 F.3d 957, 962-63 (8th Cir. 1997) (summary judgment
standard), are as follows.3 In 2003, Hughes was a Zone Sergeant assigned to Bates
County, Missouri. His direct supervisor was Lieutenant Ripley who served in a
supervisory role in Bates County and Cass County, Missouri. Bates County and Cass
County are located within the boundaries of the MSHP's Troop A, which was
commanded by Captain Ellis. In June 2003, the MSHP was considering consolidating
Bates and Cass counties. Hughes attended a meeting with Ellis and Ripley to discuss
the proposed consolidation and expressed disagreement. As an alternative, Hughes
suggested one trooper from Bates County be reassigned to Cass County to relieve its
personnel problems. Ellis and Ripley favored consolidation and Ripley voiced
dissatisfaction with Hughes's alternative plan, but Ellis delayed consolidation and
temporarily adopted Hughes's suggestion. Following the meeting, Ripley was visibly
angry and, at this point, according to Hughes, Ellis and Ripley began a campaign of
retaliation.



      2
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
      3
      For additional facts see Hughes v. Stottlemyre, 454 F.3d 791 (8th Cir. 2006)
(Hughes I).

                                         -2-
      Hughes contends four disciplinary complaints initiated against him were
brought in retaliation for his criticism of the consolidation plan. The first involved a
trooper under Hughes's supervision who darted across a Missouri highway to kill a
coyote and trespassed on private land to retrieve it. The complaint, initiated by
Corporal Kevin Fisher, alleged Hughes told him to report the incident to Ripley but
not volunteer any details. Additionally, the complaint alleged Hughes advised the
trooper not to talk with investigators without a lawyer present.

      The second complaint alleged Hughes ordered an on-duty trooper to transport
Hughes's children to and from school on various occasions. The complaint further
alleged Hughes also used his patrol vehicle to transport his children to and from
school.

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

       The fourth complaint involved an incident where Hughes entered Fisher's
residence to retrieve the keys to Fisher's patrol vehicle. Hughes's patrol vehicle had
been damaged en route to a traffic accident and he needed a substitute. Fisher was off
duty and his patrol vehicle was parked at his home a few miles away. Hughes drove
to Fisher's home, entered the locked home using the keypad access code, and located
the vehicle keys. Fisher admitted giving Hughes the access code on a previous
occasion but had not otherwise given Hughes permission to enter his home.

      The four complaints were initiated by Fisher but signed by Ripley or Ellis
because MSHP rules do not permit a subordinate to sign a complaint involving a
superior. Wilhoit investigated the complaints and interviewed Hughes who admitted

                                          -3-
the essential factual allegations underlying each complaint. Nevertheless, Hughes
contends Ripley and Ellis used the complaints as an opportunity to retaliate against
him and enlisted the aid of Wilhoit to further their plan.

       In his first appeal, Hughes argued the district court granted summary judgment
on a basis not advanced by defendants. We agreed and reversed. On remand,
defendants renewed their motion for summary judgment, expressly arguing the
complaints were initiated and investigated for legitimate non-retaliatory reasons. The
district court again granted summary judgment and this appeal followed. On appeal,
Hughes argues the district court erred in 1) applying McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973) instead of Mt. Healthy Sch. Dist. v. Doyle, 429 U.S. 274
(1977), and 2) finding the legitimate non-retaliatory reasons offered by defendants
were not pretextual.

                                          II

       We review the district court's grant of summary judgment de novo. Henerey
v. City of St. Charles, 200 F.3d 1128, 1131 (8th Cir. 1999). Summary judgment is
proper if the evidence, viewed in the light most favorable to the nonmoving party,
demonstrates no genuine issue of material fact exists and the moving party is entitled
to judgment as a matter of law. Id.; Fed. R. Civ. P. 56(c).

       To establish a prima facie case of retaliation based on the First Amendment, a
plaintiff must allege and prove he engaged in conduct protected by the First
Amendment and the protected conduct was a substantial or motivating factor in the
employer's decision to take the adverse employment action. Mt. Healthy, 429 U.S. at
287; Okruhlik v. Univ. of Ark., 395 F.3d 872, 878 (8th Cir. 2005) (noting the same




                                         -4-
test applies to both First Amendment and Tile VII retaliation cases).4 Under the
burden-shifting framework of McDonnell Douglas, 411 U.S. at 802-03, Hughes has
the burden of establishing a prima facie case of retaliation. After a prima facie
showing is made, a presumption of retaliation arises, and the burden of production
shifts to the employer to advance a legitimate reason for the employment action. See
Ryther v. KARE 11, 108 F.3d 832, 836 (8th Cir. 1997). Once the employer advances
a legitimate reason for the adverse action, the presumption drops out and "the trier of
fact proceeds to decide the ultimate question: whether plaintiff has proven that the
defendant intentionally discriminated against the plaintiff." Id. (citing St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 510-11(1993)). In some situations, this can be
shown indirectly by establishing the employer's proffered reason was a pretext for
retaliation. See Hicks, 509 U.S. at 507-08. The ultimate burden of persuasion
remains with the employee to show the adverse employment action was motivated by
intentional retaliation. Id. at 508.

        Ellis, Ripley, and Wilhoit argue the complaints and investigations were not
initiated or undertaken in retaliation for Hughes's protected speech. They offer the
affidavit and testimony of Fisher stating he alone initiated the complaints and was not
coaxed or coached by Ellis or Ripley. Defendants also offer Wilhoit's affidavit stating
he was unaware of Hughes's speech until Hughes filed suit, and did not discuss the
matter with Ellis or Ripley prior to investigating the complaints. In opposition,
Hughes argues Fisher's affidavit and testimony are ambiguous and a reasonable trier
of fact could conclude he was not the catalyst for the complaints. Further, he argues,
even assuming Fisher was the source of the complaints, Ellis and Ripely pursued them



      4
         We reject Hughes's argument that our citation to Mt. Healthy in Hughes I
suggests the burden-shifting framework of McDonnell Douglas is inapplicable to his
claims. See Stewart v. Indep. Sch. Dist. No. 196, 481 F.3d 1034, 1042-43 (8th Cir.
2007) ("Without direct evidence of a retaliatory motive, we analyze retaliation claims
. . . under the burden-shifting framework of [McDonnell Douglas].").

                                         -5-
with retaliatory motives. Finally, he claims Wilhoit conspired with Ellis and Ripley
in pursuing the investigations which led to his demotion and transfer.

       A review of the evidence demonstrates Fisher came forward with the damaging
information without prodding from Ellis or Ripley, and we find nothing in the record
to support Hughes's contrary claims. Similarly, we find no support for Hughes's
conspiracy theory. Other than Hughes's unfounded speculation, nothing in the
evidence supports a link between Wilhoit's investigations, Hughes's opposition to the
policy change, and Ellis or Ripley. The uncontroverted evidence demonstrates the
complaints were handled in accordance with established MSHP policy and the only
involvement Ellis and Ripley had was to sign them and provide information when
interviewed by Wilhoit. They neither supervised nor directed the investigations, and
there is no evidence whatsoever indicating similarly situated members of the MSHP
were treated differently. See Logan v. Liberty Healthcare Corp., 416 F.3d 877, 881
(8th Cir. 2005) (holding a showing of pretext requires more evidence than a prima
facie showing because evidence of pretext and retaliation is viewed in light of the
employer's proffered non-retaliatory reasons).

                                         III

      The judgment of the district court is affirmed.
                     ______________________________




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