                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-1552
                                   No. 98-1734
                                   ___________

Terry Graning,                       *
                                     *
           Plaintiff-Appellant/      *
           Cross-Appellee,           * Appeal from the United States
v.                                   * District Court for the
                                     * District of Minnesota.
Sherburne County; Bruce Anderson,    *
                                     *
           Defendants-Appellees/     *
           Cross-Appellants.         *
                                ___________

                             Submitted: February 12, 1999
                                Filed: April 8, 1999
                                 ___________

Before MURPHY, LAY, and JOHN R. GIBSON, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

       Terry Graning held an administrative position in the Sherburne County
sheriff’s department until she was fired by Sheriff Bruce Anderson for breaching the
departmental confidentiality policy. Graning alleged that the real reason for her
dismissal was her support for Anderson’s election opponent and sued both Sheriff
Anderson and the county under 42 U.S.C. § 1983 and state law. The district court1

      1
       The Honorable Paul A. Magnuson, Chief Judge, United States District
Court for the District of Minnesota.
granted summary judgment for the defendants on her § 1983 and defamation claims
and declined to exercise supplemental jurisdiction over her claim under the
Minnesota Data Practices Act. Graning appeals, and we affirm.

       Terry Graning was employed by Sherburne County from April 24, 1990 until
February 28, 1996. After Sheriff Richard Witschen announced his intention to retire,
chief deputy Skip Gerlach and appellee Bruce Anderson, then lieutenant deputy, ran
to succeed him. Graning actively supported Gerlach while the majority of the
department staff apparently supported Anderson who won the November 1994
election and took office in January 1995. Graning says that the atmosphere in the
department was extremely uncomfortable for her following the election. She felt that
her relations with Anderson supporters were poor and that the sheriff and others were
rude to her. After the election, Graning’s supervisor told her that Anderson and his
deputies were watching her closely. In the spring of 1995, her lunch schedule was
changed and she was told she should no longer lunch with co-worker Gary Poslusny.
Poslusny had also supported Gerlach, but there is no indication that Graning asked
why the supervisor was concerned about her spending time with Poslusny. Graning
felt that the hostility towards her began to improve after a year or so, but she was
fired on February 28, 1996, about fourteen months after the election.

       The events immediately prior to Graning’s dismissal are largely
uncontroverted. In February 1996, a confidential informant referred to as Pat Doe
contacted the Foley police chief about someone she regarded as an habitual drunk
driver who she believed was likely to harm himself and others. Pat Doe indicated that
this individual was Larry Neiss and that she was frightened of him and feared her
safety could be endangered if he learned she had given this information. The chief
relayed the information about Neiss to the Sherburne County sheriff’s department and
Sheriff Anderson posted a memo on a departmental bulletin board to notify officers
that Larry Neiss was suspected of frequently driving while intoxicated. The memo
described identifying characteristics of Neiss and vehicles he was known to drive and

                                         2
listed bars he was known to frequent. A copy of his criminal history was also posted
next to the memo. The bulletin board was located in a hallway in the non-public area
of the office. Although the hallway was a limited access area, prisoners and other
non-employees passed through it for various reasons. It is not disputed that Graning
knew when she was hired that all items of departmental business were routinely
considered to be confidential. Employees were prohibited from sharing such
information with outsiders.

       Not long after the memo was posted, Sheriff Anderson learned that Neiss had
been informed by Dorothy Gilyard that the department was intent on arresting him.
The record before the court does not provide much information about Gilyard, but
appellees’ reply brief in the district court mentioned that Leonard Graning, Terry
Graning’s husband, had testified that he told Gilyard about the Neiss memo. Sheriff
Anderson suspected that Terry Graning was the source of the leak and called her into
his office for questioning; Chief Deputy Lindberg and Sergeant Harrell were also
present. The sheriff accused Graning of releasing information to Gilyard. Graning
denied that, but admitted that she had told her husband that he should be careful or
his name would be on the board like that “Weiss or Teiss character.” At the
conclusion of the interview, the sheriff terminated Graning’s employment. Later that
day the sheriff posted a notice on the bulletin board advising departmental personnel
that Graning would no longer be working there because of a breach of confidentiality.

       Graning challenged her dismissal, first through departmental procedures and
then in court. She began by filing a grievance with the county director of human
resources. After this grievance was rejected and her discharge upheld, Graning
turned to the Sherburne County Board of Commissioners. The board heard her case
in a contested evidentiary hearing in April 1996. In May it unanimously ruled against
her, and she did not seek judicial review of its decision. Instead, she filed this action
against Sheriff Anderson and Sherburne County, seeking monetary and injunctive



                                           3
relief under 42 U.S.C. § 1983 and alleging defamation and violation of the Minnesota
Data Practices Act. Minn Stat. § 13.01-13.99.

       The district court granted defendants’ motion for summary judgment on
Graning’s § 1983 and defamation claims. It reasoned that she had not asserted facts
sufficient to support a causal connection between her political affiliation and her
termination and that the defendants had accorded her all the process she was due. It
concluded there could be no defamation because Graning’s admissions established
that the contents of the sheriff’s memo were true, and it declined to take supplemental
jurisdiction over the Minnesota Data Practices Act claim.

       On appeal, Graning argues that the district court erred in analyzing her first
amendment claims under the framework of McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). She also asserts that her discharge was arbitrary and capricious and
thus in violation of her fourteenth amendment due process rights and that there are
genuine issues of material fact regarding whether her defamation claim is barred by
the defense of truth.2

       Appellees filed a cross appeal to preserve some alternative grounds on which
they might prevail. They assert that Graning’s § 1983 claims are subject to dismissal
for the county because her alleged injuries were not the result of an official municipal
policy and for the sheriff because he is entitled to qualified immunity. They also
argue that Graning’s defamation claim should be dismissed because Sheriff Anderson


      2
        Graning also argues that the district court abused its discretion in allowing
appellees to file several additional affidavits submitted with their reply brief.
After reviewing the affidavits and the context in which they were submitted, we
find no abuse of discretion. The additional information was not of critical
significance, and affidavits may appropriately be produced with a reply brief when
they respond to new issues which have arisen during briefing. Alaska Wildlife
Alliance v. Jensen, 108 F.3d 1065, 1068 n.6 (8th Cir. 1997).
                                           4
had a qualified privilege under Minnesota law in posting the statement about
Graning’s discharge.

       Summary judgment is reviewed de novo and upheld only if the record, when
viewed in the light most favorable to the non-moving party, shows there is no genuine
issue of material fact and the moving parties are entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c); Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d
1311, 1315 (8th Cir. 1996). Summary judgment is not proper if there are genuine
disputes over facts that could affect the outcome under the applicable substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if
a reasonable jury could return a verdict for the non-moving party based on the
evidence presented in the district court. Id.

       Graning seeks relief under 42 U.S.C. § 1983, alleging that appellees violated
her first amendment right to political affiliation and her fourteenth amendment due
process rights. To establish a § 1983 claim against Sheriff Anderson, Graning must
show his conduct deprived her of a constitutional right, privilege, or immunity and
that he acted under color of state law. Reeve v. Oliver, 41 F.3d 381, 383 (8th Cir.
1994). To establish a claim against the county, she must further establish that the
“decisionmaker possess[ed] final authority to establish municipal policy with respect
to the action ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986).
There is no issue here about the acting under color of state law requirement, but the
parties disagree on whether the sheriff’s decision, upheld by the Board of
Commissioners, may be fairly said to represent municipal policy and whether any
constitutional right was violated.

        Graning argues that her first amendment rights were violated because she was
fired for supporting Gerlach instead of Anderson in the November 1994 election, but
appellees say she was fired for breaching the department’s confidentiality policy. A
state employee’s right to freedom of political affiliation is protected under the first

                                          5
amendment. With the exception of those in policymaking positions, state employees
may not be discriminated against because of their political affiliation. Elrod v. Burns,
427 U.S. 347 (1976); Billingsley v. St. Louis County, 70 F.3d 61, 63 (8th Cir. 1995).
To establish a prima facie case of discrimination, the complainant 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
the adverse employment action. Stevens v. St. Louis Univ. Medical Center, 97 F.3d
268, 270 (8th Cir. 1996). Once a prima facie case has been stated, the burden shifts
to the employer to articulate a non-discriminatory reason for the adverse employment
action. The employee has an opportunity to prove that the reason given is pretextual.3
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973).

       To support her allegation of discrimination, Graning has produced evidence
that a supervisor indicated to her after the election that Anderson and his supporters
were watching her, that she was told not to continue to lunch and socialize with Gary
Poslusny, that she did not receive flowers on secretaries day in 1995, and that some
of her work assignments changed, although they were not necessarily worse. She also


      3
        Graning argues that her claim should either be analyzed under Mt. Healthy
City Sch. Dist. Bd. of Educ., 429 U.S. 274 (1977), rather than under the
McDonnell Douglas framework, or that she be permitted to go to trial under
alternative theories. The so-called mixed motive analysis under Mt. Healthy is
only used if a complainant has comes forward with “‘evidence that directly reflects
the use of an illegitimate criterion in the challenged decision.’” Carroll v. United
States Dep’t of Labor, 78 F.3d 352, 357 (8th Cir. 1996) (citation omitted). Once it
is shown that protected conduct was at least part of the reason for the adverse
employment action, the burden shifts to the employer to establish that the
employee would have been fired even if she had not engaged in the protected
conduct. Mt. Healthy, 429 U.S. at 287. Graning has not produced evidence to
show that she was terminated because of her political activity so the district court
did not err in applying the McDonnell Douglas analysis. After our review of the
record, we conclude that Graning has failed to establish a prima facie case under
either test.
                                           6
asserts that the severity of the sanction and the sheriff’s failure to consider lesser
options are evidence of discrimination. Graning admits, however, that she has not
proven that Anderson even knew she had supported Gerlach in the election. She also
has not shown, by affidavit or otherwise, that Anderson was aware of the political
affiliation of people in the department, that anyone was given less severe sanctions
for similar violations, or that negative attitudes of co-workers about her were related
to her political affiliation.

       Graning’s termination came some fourteen months after the contested election
and immediately after her admitted violation of the confidentiality policy of a law
enforcement agency. Graning acknowledges that she knew that the posted memo was
departmental business, that she knew all departmental business was to be kept
confidential, and that she did disclose information from the memo to her husband.
Although Graning can show she supported Gerlach in the 1994 election, she has not
provided facts sufficient to support a finding that there was a causal connection
between that activity and her dismissal. A non-moving party may not avoid summary
judgment by resting on allegations, but must set forth specific facts sufficient to raise
a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The
district court did not err in granting summary judgment for both Anderson and the
county4 on her first amendment claim.

       Graning also seeks relief under § 1983 for due process violations. The district
court determined that Graning had received all the process she was due and that none
of her allegations led to the conclusion that her termination was irrational. On appeal,
Graning alleges that the county discharged her in an arbitrary and capricious manner,
depriving her of property and liberty interests without due process of law.

      4
       Because we find no constitutional right was denied, we need not discuss
whether Sheriff Anderson’s firing of Graning and the subsequent affirmation of
that decision by the Board of Commissioners would amount to municipal policy
within the meaning of Pembaur v. City of Cincinnati, 475 U.S. 469 (1986).
                                           7
      A state employee is entitled to a hearing or some related form of due process
before being deprived of a constitutionally protected property or liberty interest.5 See
Cleveland Bd of Educ. v. Loudermill, 470 U.S. 532 (1985) (discussing process
required to protect state employee’s property interest in continued employment);
Johnson v. Rogers, 621 F.2d 300, 305 (8th Cir. 1980) (noting that due process
procedures are required to protect a public employee terminated under stigmatizing
circumstances). A public employee with a protected property interest in continued
employment receives due process if there is notice and an opportunity to respond to
charges of misconduct before her termination and if posttermination administrative
review procedures are available. The pretermination process need not be elaborate,
especially if there are meaningful postdeprivation procedures. Loudermill, 470 U.S.
at 542-47. A public employee is also entitled to notice and a name-clearing hearing
when fired under circumstances imposing a stigma on her professional reputation.
Johnson, 621 F.2d at 305 (citations omitted).

       Graning was given notice of the reason for her dismissal and an opportunity
to respond to the charges, and after her termination she availed herself of
departmental grievance procedures in which she was represented by private counsel.
She also received an evidentiary hearing in April 1996 before the Sherburne County
Board of Commissioners. The board upheld her discharge in May of that year, and
she chose not to seek review of that decision in state court. Graning had a meaningful
opportunity to challenge her discharge and although she was unsuccessful, her
procedural due process rights were adequately protected by the process. See
Loudermill, 470 U.S. at 542-47.

      To establish a substantive due process claim, Graning must show that the
government action was “‘truly irrational,’ that is, ‘something more than . . . arbitrary,


      5
       No serious issue has been raised as to whether Graning had protected
property and liberty interests.
                                           8
capricious, or in violation of state law.’” Anderson v. Douglas County, 4 F.3d 574,
577 (8th Cir. 1993) (citations omitted). Graning knowingly communicated
confidential departmental business to her husband, and the spread of this information
caused an informant to fear for her safety and could have interfered with the
effectiveness of the sheriff’s department. Graning has not shown that the decision to
terminate her was “truly irrational.” The district court did not err in granting
summary judgment to the defendants on her due process claims.

       Graning further argues the district court erred in granting summary judgment
on her claim that Sheriff Anderson defamed her by posting the notice that she had
been terminated for violating department policy. Anderson and the county argue the
district court correctly determined that there was no defamation because the contents
of the memo were true, but Graning claims there are conflicting issues of material
fact.

        A statement is not defamatory under Minnesota law unless it is communicated
to a third party, is false, and tends to harm the plaintiff’s reputation in the community.
Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980); see also
Michaelis v. CBS, Inc., 119 F.3d 697, 700 (8th Cir. 1997). A true statement cannot
be defamatory. Stuempges, 297 N.W.2d at 255; Benson v. Northwest Airlines, 561
N.W.2d 530 (Minn. App. 1997). The posted statement read: “This is to advise all
personnel that because of a breach of confidentiality as of Thursday, 02 29 96, Terry
Graning will no longer be working with this department . . .” Graning has
acknowledged that she disclosed to her husband the contents of a memo involving
departmental business. She now challenges the policy of considering all departmental
business confidential as inconsistent with the Minnesota Data Practices Act and
asserts that there are questions of fact about whether the memo can be considered




                                            9
confidential because it was posted in an area through which outsiders passed.6
Graning acknowledges that, at the time of her hire, she was aware that all
departmental business was considered confidential. The undisputed facts establish
that Graning did breach this policy by disclosing information about the Neiss posting
to her husband. She has not alleged facts sufficient to support a finding that the
statement regarding her termination was false. The district court did not err in
granting summary judgment on Graning’s defamation claim.

       The district court declined to exercise supplemental jurisdiction over Graning’s
claim that appellees violated the Minnesota Data Practices Act because all of the
federal question claims had been dismissed. The district court may choose not to
exercise supplemental jurisdiction over a pendent state claim when it has dismissed
all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3); Franklin
v. Zain, 152 F.3d 783, 786 (8th Cir. 1998). Nonetheless, Graning asserts that the
court should have taken jurisdiction over her claim under the Minnesota statute
because information relating to it could have been relevant to her other claims. She
has not specifically shown, however, how her other claims would have been
bolstered, and the district court did not abuse its discretion by declining to exercise
supplemental jurisdiction over the Minnesota Data Practices Act claim.

      For the reasons discussed above, the judgment of the district court is affirmed,
and the cross appeal is dismissed as moot.




      6
        The fact that outsiders sometimes pass by the bulletin board in the
restricted access hallway is insufficient to prevent summary judgment. Graning
has not produced evidence that any outsider was in a position to be able to read the
Neiss memorandum. In addition, any possible inconsistency between the
department’s confidentiality policy and the state Data Practices Act would not
prove that the reason given for terminating Graning was pretextual.
                                          10
A true copy.

      ATTEST:

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




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