                   United States Court of Appeals
                               For the Eighth Circuit
                           ___________________________

                                   No. 15-3676
                           ___________________________

                                     Donna Williams

                                 lllllllllllllllllllll Plaintiff

                                       Linda Jenkins

                          lllllllllllllllllllll Plaintiff - Appellee

                                               v.

Frederick P. Tucker, Judge, in his Official Capacity and in his Individual Personal Capacity

                         lllllllllllllllllllll Defendant - Appellant

           Kevin Shoemaker, Sheriff, in his Individual Personal Capacity

                               lllllllllllllllllllll Defendant
                                       ____________

                      Appeal from United States District Court
                    for the Eastern District of Missouri - Hannibal
                                    ____________

                              Submitted: January 11, 2017
                                 Filed: May 23, 2017
                                   ____________

Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges.
                         ____________

MURPHY, Circuit Judge.
       Linda Jenkins was reduced to part time employment as the bailiff in a county
courthouse shortly after the election of Frederick Tucker as presiding circuit judge.
Jenkins sued Tucker and the county sheriff, alleging that she had been unlawfully
retaliated against for supporting the losing candidate for presiding judge. The district
court1 granted summary judgment to the sheriff but denied it to Tucker, who filed this
interlocutory appeal. We affirm.

                                           I.

       Linda Jenkins began working as a deputy sheriff in Macon County, Missouri
in 1998. Within a year she was working two part time positions: both as a road
deputy patrolling the county and as a bailiff providing security in the Macon County
courthouse located in Missouri's 41st judicial district. Jenkins began working full
time as a bailiff in 2003, while remaining a commissioned deputy sheriff. The
presiding circuit judge arranged for her salary to move from the sheriff's budget to the
court budget "to ensure that she would be available for courtroom security at all times
as the Courts . . . were in session."

       This presiding circuit judge retired in early 2011, and the governor appointed
Frederick Tucker to fill the vacancy. Tucker ran for reelection in 2012 against
associate circuit judge Philip Prewitt. Jenkins supported Prewitt in the election and
had his campaign sign placed on her property. Tucker won the November 2012
election, however, and reportedly told Jenkins, who was still working full time as the
court's bailiff, that he "want[ed] somebody that supports [him]" working for him.

      As presiding circuit judge, Tucker was responsible for approving the budgets
for the court and the sheriff. When he transmitted the budgets to the county


      1
       The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.

                                          -2-
commissioners for approval shortly after the election, he moved Jenkins' salary from
the court budget and placed it back into the sheriff's budget without notifying Jenkins.
The county commissioners then decreased the sheriff's personnel budget by
$18,869.59, an amount slightly less than Jenkins' annual salary.

        No minutes from the county commissioner meeting indicated any discussion
of the bailiff position or its potential impact on the requested budgets. The newly
elected sheriff, Kevin Shoemaker, said that the commissioners had explained to him
that Jenkins should be included in his budget and could work as either a part time
bailiff or a full time road deputy. Sheriff Shoemaker then gave Jenkins the option of
taking one of those two positions or retiring, and Jenkins chose to work as a bailiff
part time. This change in her employment status resulted in Jenkins losing her health
insurance coverage as well as her social security and retirement benefits.

       Jenkins brought this action under 42 U.S.C. § 1983 against Tucker and
Shoemaker in their individual and official capacities for retaliating against her for
having supported associate judge Prewitt in the election. The defendants moved for
summary judgment on the basis of qualified immunity. The district court granted
Shoemaker summary judgment after concluding that Jenkins had failed to present
evidence that Shoemaker knew she had supported Prewitt or taken any retaliatory
action against her. The district court denied Tucker summary judgment after
concluding that Tucker's statement that he "wants somebody who supports [him]"
provided direct evidence of retaliatory motive. The court also concluded that whether
the budget transfer caused an adverse employment action presented a material issue
of fact. Tucker appeals the denial of qualified immunity.

                                          II.

      We review "the denial of summary judgment based on qualified immunity de
novo, viewing all evidence in a light favorable to the non moving parties."

                                          -3-
Shockency v. Ramsey Cty., 493 F.3d 941, 948 (8th Cir. 2007). A state official is
entitled to summary judgment on the basis of qualified immunity unless (1) the "facts
taken in the light favoring the nonmoving party show that the official's action violated
a constitutional right" and (2) that right "was clearly established" at the time of the
violation. Id. at 947. On such an interlocutory appeal, our review is limited to
determining purely legal issues such as "whether a reasonable fact-finder could find
a violation of plaintiff['s] rights" and "whether the law establishing the violation was
clearly established at the time in question." S.M. v. Krigbaum, 808 F.3d 335, 340
(8th Cir. 2015). We lack jurisdiction to review issues such as "which facts a party
may, or may not, be able to prove at trial." Id. at 339 (quoting Johnson v. Jones, 515
U.S. 304, 313 (1995)).

                                          A.

        Jenkins alleges that she was unlawfully retaliated against for supporting
associate circuit judge Prewitt for the presiding circuit judge. To avoid summary
judgment on that retaliation claim, she must present "direct evidence" of retaliation
or follow "the burden-shifting analysis set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973)." Schierhoff v. GlaxoSmithKline Consumer Healthcare,
L.P., 444 F.3d 961, 964–65 (8th Cir. 2006). Under the burden shifting framework,
a plaintiff must "set forth a prima facie case in order to shift the burden of producing
a legitimate, [nonretaliatory] reason for the employment decision to the employer."
Id. If the employer provides a nonretaliatory reason, "then the employee must prove
that the reason is a pretext for the [retaliation]." Id. at 965. Here, we need not
determine whether Jenkins has provided "direct evidence" of retaliation because she
has put forward a claim by means of the burden shifting analysis.

       To establish a prima facie case of retaliation, a plaintiff must show that "she
participated in a protected activity, that an adverse employment action was taken
against her, and that there was a causal connection between the protected activity and

                                          -4-
the adverse employment action." Graning v. Sherburne Cty., 172 F.3d 611, 615 (8th
Cir. 1999). In this case the parties agree that Jenkins has shown that she engaged in
protected speech by supporting associate judge Prewitt in the election.2 They
disagree, however, as to whether she has shown that she suffered an adverse
employment action retaliating for her protected speech.

       To show an adverse employment action, a plaintiff must establish that she
experienced "a material change in the terms . . . [of] employment" or "a tangible
change in duties or working conditions that constitute a material disadvantage."
Jones v. Fitzgerald, 285 F.3d 705, 713 (8th Cir. 2002) (citations omitted). Here,
Tucker reacted to Jenkins' support of a rival candidate by moving her salary from the
court budget to the sheriff's budget. After that adjustment the county commissioners
decreased the sheriff's personnel budget by a little less than Jenkins' salary. Jenkins
was then given the option of retiring, working part time as a bailiff, or working full
time as a road deputy. She chose part time employment, and thereafter lost her health
insurance coverage as well as her social security and retirement benefits. The loss of
all these benefits amounted to material changes in the terms of her employment. See
Meyers v. Starke, 420 F.3d 738, 744 (8th Cir. 2005) (stating that changes in "salary,
benefits, or responsibilities" exemplify adverse employment actions).

        Tucker argues that Jenkins could have accepted the road deputy position and
not experienced an adverse employment action. Although "a purely lateral transfer,
that is a transfer that does not involve a demotion in form or substance, cannot rise to the
level of a materially adverse employment action," there is a factual dispute in this case
as to whether serving as a road deputy would amount to a lateral transfer or a

       2
       We note that our court recently clarified the standard under which such claims
should be analyzed. See Thompson v. Shock, 852 F.3d 786, 792 (8th Cir. 2017).
Because the parties did not dispute whether Jenkins engaged in protected activity
before the district court or on appeal, we see no need to remand for further
consideration in light of our decision in Thompson.

                                            -5-
demotion. See Jones, 285 F.3d at 714 (quoting Ledergerber v. Stangler, 122 F.3d 1142,
1144 (8th Cir. 1997)). If the record is construed in the light most favorable to Jenkins,
the road deputy position involved major changes in working conditions. It was held by
many more deputy sheriffs and was less prestigious. Such factors may show that the
transfer was a demotion and thereby an adverse employment action. See Tadlock v.
Powell, 291 F.3d 541, 546–47 (8th Cir. 2002). Whether Jenkins would have remained
working part time as a bailiff or full time as a road deputy, either change could have
amounted to an adverse employment action.

       Jenkins has also provided evidence from which a reasonable fact finder could
infer that Tucker was causally connected to that adverse employment action. Often
"the issue of causal connection is . . . fact-intensive" and best left for the ultimate fact
finder. See Lyons v. Vaught, 781 F.3d 958, 963 (8th Cir. 2015). That is the case
here. Tucker admitted that he knew there was a Prewitt campaign sign on Jenkins'
property, and the adverse employment action occurred within one month after his
allegedly telling Jenkins that he wanted an employee who had supported him. The
"timing of [Jenkins'] reassignment coupled with evidence of [Tucker’s] statements"
near the time of the reassignment could give rise to an inference of unlawful
retaliation. See Meyers v. Neb. Health & Human Servs., 324 F.3d 655, 659 (8th Cir.
2003).

       Tucker argues that if Jenkins experienced any adverse employment action, it
was because the county commissioners had independently decided to reduce the
sheriff's budget. Jenkins has, however, provided circumstantial evidence that Tucker
was involved in the county commissioners' decision to reduce the sheriff's budget.
Our review of Tucker's involvement in that decision is "constrained by the version
of the facts that the district court assumed or likely assumed in reaching its decision."
Thompson v. Murray, 800 F.3d 979, 983 (8th Cir. 2015). Here, the district court did
not explicitly state how Tucker was involved in the budget reduction beyond that his
decision to transfer Jenkins' salary "started th[e] ball rolling." The question of the

                                            -6-
extent of his involvement is therefore determined "by viewing the record in the light
most favorable" to Jenkins. See Thompson, 800 F.3d at 983.

       In its oral decision, the district court made two comments immediately
following its statement that the transfer "started th[e] ball rolling" which, viewing the
record in the light most favorable to Jenkins, could support a conclusion that Tucker
was involved in the budget reduction decision. First, the court noted that the
commissioners and sheriff "mysteriously determined they only needed a part-time
bailiff." From this, the court likely assumed that it was unlikely that the sheriff and
county commissioners would determine off the record that they needed only a part
time bailiff when that decision would most intimately impact the circuit judges.
Second, the court noted that the circuit judges were "by statute in charge of the
sheriff's hiring and paying of deputies," further suggesting that Tucker would have
been involved in any discussion about a reduction in Jenkins’ bailiff duties. See Mo.
Rev. Stat. § 57.230; Gaines v. Grimm, 555 S.W.2d 11, 12–13 (Mo. 1977). Based on
these facts, the district court likely assumed for purposes of deciding the motion that
Tucker was involved in the decision to change the terms of Jenkins’ employment.

       Taking the facts stated and likely assumed by the district court as given, see
Johnson, 515 U.S. at 313, Jenkins has provided evidence of a prima facie case of
retaliation and a pretextual explanation for the adverse employment action. Based on
those assumed facts, we conclude that Jenkins has provided sufficient evidence for
a reasonable fact finder to conclude that Tucker violated Jenkins' right to support an
electoral candidate of her choice.3




      3
       Given our conclusion that Tucker is not entitled to summary judgment on the
basis of qualified immunity, "we need not consider [his] 'inextricably intertwined'
argument" regarding the official capacity claim. Shockency, 493 F.3d at 952.

                                          -7-
                                          B.

       Tucker argues that even if he violated Jenkins' First Amendment right to
support an electoral candidate, the contours of that right were not clearly established
at the time of any such violation. Tucker frames the right at issue as the right to
remain a full time court employee, but the issue is properly characterized as whether
Tucker impermissibly retaliated against Jenkins by causing her to become a part time
employee. It is clearly established "that a government employer cannot take adverse
employment actions against its employees for exercising their First Amendment
rights" by participating in electoral activities. Shockency, 493 F.3d at 948. This right
was clearly established at the time of the alleged violation.

                                          III.

     For these reasons we conclude that the district court did not err in denying
Tucker summary judgment on the basis of qualified immunity.




                                          -8-
