                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-4053
                                   ___________

Gene W. Spitzmiller,                   *
                                       *
            Appellant,                 *
                                       *
       v.                              * Appeal from the United States
Julia Hawkins, David Harrison, Paul    * District Court for the
Boudreau, Carla A. Owens-Cobbs,        * Western District of Missouri.
Karen Touzeau, Carolyn A. Hulbert,     *
Daniel S. Ross, Jane Rackers,          *
Douglas Nelson,                        *
                                       *
            Appellees.                 *
                                  ___________

                             Submitted: May 10, 1999

                                 Filed: August 24, 1999
                                  ___________

Before WOLLMAN, Chief Judge, BEAM, and MURPHY, Circuit Judges.
                             ___________

WOLLMAN, Chief Judge.

     Gene W. Spitzmiller appeals from the district court’s1 grant of summary
judgment in favor of Julia A. Hawkins, David C. Harrison, Paul A. Boudreau, Carla A.



      1
        The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.
Owens, Karen Touzeau, Carolyn A. Hulbert, Daniel S. Ross, Jane Rackers, and
Douglas E. Nelson (defendants)2 on his claims for wrongful termination. We affirm.

                                          I.

       Beginning on September 1, 1989, Spitzmiller was employed as a hearing officer
for the Personnel Advisory Board (Board) of the State of Missouri. In this capacity,
he presided over appeals filed by current and former state employees challenging
adverse personnel decisions. He would propose findings of fact, conclusions of law,
decisions, and orders, which the Board could adopt as final.

      By letter from the Board dated July 30, 1996, Spitzmiller received notice of his
termination for allegedly failing to follow Board policy by intermittently turning off
audiotapes while conducting hearings. In addition, the letter stated that the Board had
received several complaints from hearing participants that Spitzmiller’s conduct was
rude and hostile during hearings.

      Spitzmiller filed an appeal of his termination with the Board, a state court
lawsuit, and two federal actions. Initially, the district court ordered a stay of
proceedings in this case while the administrative appeal and state court action were
pending. Spitzmiller appealed the district court’s stay order. Thereafter, he dismissed
his administrative appeal and state court action. On October 15, 1997, we held that his
appeal was moot because the stay had expired by its own terms when Spitzmiller
voluntarily dismissed the state court proceedings. See Spitzmiller v. Hawkins, No. 97-
1991, 1997 WL 633092 (8th Cir. Oct. 15, 1997).


      2
      Hawkins, Harrison, Boudreau, Owens, Touzeau, Hulbert, and Ross were
members of the Personnel Advisory Board at various times during Spitzmiller’s
employment or pendency of this action; Rackers and Nelson, lawyers employed by the
Missouri Attorney General, had rendered advice to the Board.

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       Following our dismissal of the appeal, the district court granted defendants’
motion for summary judgment. Spitzmiller appeals, claiming that the Board violated
his First Amendment right to free speech, his Fourteenth Amendment right to due
process, and his right of access to federal court.

                                           II.

      We review the district court’s grant of summary judgment de novo, applying the
same standard that was applied by the district court. See Hossaini v. Western Mo.
Med. Ctr., 140 F.3d 1140, 1142 (8th Cir. 1998). Summary judgment is proper if the
evidence, viewed in the light most favorable to the nonmoving party, demonstrates that
no genuine issue of material fact exists and the moving party is entitled to judgment as
a matter of law. See id.; Fed. R. Civ. P. 56(c).

                                           A.

       Spitzmiller claims that his discharge was a result of speech protected by the First
Amendment. “In order to establish a 42 U.S.C. § 1983 cause of action alleging
violation of his first amendment rights, the plaintiff must show that he engaged in
constitutionally protected speech and that the protected speech was a substantial or
motivating factor in the decision to terminate him.” Cox v. Miller County R-I Sch.
Dist., 951 F.2d 927, 931 (8th Cir. 1991) (citing Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 287 (1977)). The district court found that Spitzmiller’s
speech was upon a matter of public concern, but granted defendants’ motion for
summary judgment because it found that the evidence was insufficient to support an
inference that the speech was a substantial or motivating factor in the decision to
terminate him. See Spitzmiller v. Hawkins, No. 96-4314-CV-C-SOW, slip op. at 5
(W.D. Mo. Oct. 20, 1998).




                                           -3-
        In Cox, we found that the plaintiff had failed to show that his speech was a
substantial or motivating factor for his discharge when the defendants provided
uncontested evidence that they had endorsed the plaintiff’s job performance following
the protected speech and had subsequently received complaints that Cox had used
profanity on the job. See 951 F.2d at 931-32. Similarly, although Spitzmiller presented
evidence that he had voiced concern to the Board regarding its decision-making
procedures and opposition to the Attorney General’s representation of particular
parties, these repeated complaints occurred over a two-year period, during which the
Board impliedly approved of Spitzmiller’s work by adopting his recommendations in
ninety-six out of ninety-nine cases during the fourteen-month period prior to his
termination. As in Cox, the Board’s approval of Spitzmiller’s performance removes
any inference of causation between the protected speech and the decision to
discontinue his employment. Moreover, it was not until June of 1996, when it received
several complaints regarding Spitzmiller’s allegedly rude behavior, that the Board
suspended, and eventually terminated, Spitzmiller. Accordingly, we agree with the
district court that the record contains no evidence sufficient to allow an inference that
Spitzmiller’s protected speech was a substantial or motivating factor for his
termination. See id.; see also Collyer v. Darling, 98 F.3d 211, 229 (6th Cir. 1996)
(noting that “it is not enough to simply demonstrate that some adverse employment
action followed speech that the employer would have liked to prevent or eliminate)
(citations omitted); Wright v. Illinois Dept. of Children & Family Servs., 40 F.3d 1492,
1500 (7th Cir. 1994) (stating that court cannot “typically draw strong conclusions from
the mere fact that protected speech may have preceded an adverse employment
decision”) (citations omitted).

                                           B.

      Next, Sptizmiller claims that he was denied due process because the state
provided inadequate procedures to appeal his termination. “To set forth a procedural
due process violation, a plaintiff, first, must establish that his protected liberty or

                                          -4-
property interest is at stake.” Gordon v. Hansen, 168 F.3d 1109, 1114 (8th Cir. 1999)
(per curiam) (citing Marler v. Missouri State Bd. of Optometry, 102 F.3d 1453, 1456
(8th Cir. 1996)); accord Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569
(1972); Graning v. Sheburne County, 172 F.3d 611, 616 (8th Cir. 1999). Spitzmiller
contends that his termination infringed on a property interest. We disagree.

       To claim entitlement to pre-termination due process, Spitzmiller must show that
he had a protected property interest derived from a source such as state law. See West
Washington County Emergency Med. Servs. v. Washington County, 967 F.2d 1252,
1254 (8th Cir. 1994) (quoting Roth, 408 U.S. at 577). To establish a protected
property interest in his employment, he must show that he could have been fired only
for good cause. See Pace v. Moriarty, 83 F.3d 261, 262 (8th Cir. 1996) (citing
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39 (1985). Here, Spitzmiller
has neither presented evidence that he was other than an at-will employee nor shown
that the Missouri merit system was applicable to him. See Mo. Rev. Stat. § 36.030.1
(exempting attorneys from merit system). Instead, he claims that violations of the
Missouri “Whistleblower” statute, Mo. Rev. Stat. § 105.055, and the Missouri
“Sunshine Act,” Mo. Rev. Stat. § 610.028.3, created a protected property interest in
his employment. Spitzmiller has failed, however, to present sufficient evidence that his
termination was caused by speech protected by these acts. Thus, his discharge
implicated no procedural due process rights.

                                          C.

       Spitzmiller claims that defendants denied him access to the federal courts by
various instances of withholding information and conducting private hearings.
Spitzmiller’s filing of two federal lawsuits cuts against this argument, however. See,
e.g., Swekel v. City of River Rouge, 119 F.3d 1259, 1263 & n.1 (6th Cir. 1997) (noting
right of access applies when violation would foreclose plaintiff from filing lawsuit);
Foster v. City of Lake Jackson, 28 F.3d 425, 430 (5th Cir. 1994) (stating right is

                                          -5-
implicated when ability to file claim is delayed or blocked). In addition, Spitzmiller has
not produced sufficient evidence that the defendants knowingly obstructed his ability
to bring any other claims.

       The only impediment to Spitzmiller’s federal lawsuit resulted from the district
court’s stay based on principles of abstention in the initial stages of that suit. As
indicated above, we declared moot Spitzmiller’s appeal of that stay in light of his
dismissal of his state court actions. See Spitzmiller, 1997 WL 633092. Thereafter, his
federal lawsuit proceeded in due course.

      The judgment is affirmed.

      A true copy.

             Attest:

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




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