                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-1591
                                   ___________

Randal L. Bechtel,                        *
                                          *
             Appellee,                    *
                                          *   Appeal from the United States
      v.                                  *   District Court for the
                                          *   Western District of Missouri
City of Belton, Missouri,                 *
                                          *
             Appellant.                   *

                                   ___________

                            Submitted: January 8, 2001
                                Filed: May 14, 2001
                                  ___________


Before HANSEN and HEANEY, Circuit Judges and WEBBER,1 District Judge.
                            ___________

WEBBER, District Judge

      The District Court2 granted defendant's motion for summary judgment on Randal
L. Bechtel's ("Bechtel") First Amendment freedom of speech claim for retaliation filed
pursuant to 42 U.S.C. § 1983 and on his state action claim for unlawful employment

      1
        The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri, sitting by designation.
      2
        The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
retaliation. Bechtel argues only the merits of his first amendment claim in this appeal.
We affirm.


                                             I.


       Bechtel currently holds the same position of Assistant Fire Chief in the Belton
Emergency Services Department ("Fire Department") for the City of Belton, Missouri,
that he held when he alleges his constitutional rights were violated. The Fire Department
is divided into shifts A, B and C. At the time of the alleged retaliatory actions by the City
of Belton ("City"), Bechtel, as Assistant Fire Chief, was in charge of B shift, reporting
to Chief Deputy Neil Bangs and Fire Chief Herman Denkler. The chain of command for
the Belton Emergency Services Department is Firefighter, Captain, Assistant Fire Chief,
Deputy Fire Chief, Fire Chief, Assistant City Administrator, and City Administrator.


       Beginning in 1993, Bechtel spoke at fire department meetings, to an assistant city
administrator and to a city councilman about his concerns related to the Fire Department's
deficiencies in pre-fire planning for public and multi-occupancy buildings, in physical
fitness requirements, in radio communication equipment, in operating procedures, and
he raised issues concerning manufacturing faults on a new ambulance. Bechtel claims
that retaliatory action was taken against him by the City in that he was denied
performance evaluations and the possibility of earning a merit increase; he did not receive
a longevity pay check because he had not been given his final step increase; and he was
placed on "secret probation." He seeks a remedy for the City's alleged retaliatory actions
taken against him because of the exercise of his First Amendment free speech rights.3




       3
      The parties recognize "that a public employee does not relinquish First
Amendment rights to comment on matters of public interest by virtue of government
employment." Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct. 1684 (1983).
                                             -2-
      The City Administrator has ultimate authority to approve or rescind departmental
personnel decisions under the City's appeal mechanism for review of disciplinary action
imposed against employees. After Bechtel was suspended in 1997 for allegedly
mishandling a personnel matter, Assistant City Administrator, Brad Foster, in the absence
of the City Administrator, favorably considered Bechtel's appeal by rescinding his
suspension, rewriting his performance evaluation, and substituting a reprimand in place
of the formerly imposed suspension. At the time of Bechtel's aforementioned suspension,
B shift was experiencing documented problems. Several firefighters filed grievances
regarding Bechtel's behavior. Bechtel has sought no other redress for any claimed
wrongful action through the City's appellate procedures at any time since his successful
appeal of the suspension.


                                            II.


      Bechtel's first point on appeal is that the District Court erred in granting the City's
motion for summary judgment because genuine issues of material fact remain that should
only be resolved by jury determination. "We review a grant of summary judgment de
novo, applying the same standard as the district court: whether the record, viewed in a
light most favorable to the non-moving party, shows that there is no genuine issue of
material fact and that the moving party is entitled to judgment as a matter of law."
Roberson v. Hayti Police Dept., 241 F.3d 992, 994 (8th Cir. 2001) (quoting Rabushka
v. Crane Co., 122 F.3d 559, 562 (8th Cir. 1997)). The Court is to view the evidence and
the inferences which may reasonably be drawn from it in the light most favorable to the
nonmoving party. Lambert v. City of Dumas, 187 F.3d 931, 934 n.3 (8th Cir. 1999)
(citing Enterprise Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996)).


      The facts most favorably considered for Bechtel reflect that in the Spring of 1997,
Ronald Trivitt ("Trivitt"), City Administrator; Brad Foster ("Foster"), Assistant City
Administrator; Fire Chief Herman Denkler ("Denkler"); Chief Deputy Fire Chief Neil
Bangs ("Bangs"); and Captain Tad Riggert ("Riggert") met in City Hall and discussed

                                            -3-
some issues relating to the B shift supervised by Bechtel. The exact scope of their
discussion is unknown, but thereafter Denkler transferred Riggert to B shift where he was
to report anything to Bangs that Riggert regarded as non-performance or poor
performance on B shift. Additionally, Bechtel claims that firefighter Barry Kuhns was
transferred to B shift to develop evidence of non-performance on B shift, to "spy" on
Bechtel and to gather information to be used against him in retaliation for exercise of his
free speech. Fire Chief Richard R. Davidson replaced Denkler in 1999 and was told by
Riggert that he had been instructed to report poor performance on B shift to Bangs back
in 1997.


      Bechtel received no performance evaluation merit increase for 1997. Trivitt
instructed Denkler to review Bechtel's performance for that year, but Denkler failed to
make that review. Bechtel neither complained to nor notified Trivitt of his failure to
receive a performance evaluation or merit increase for 1997. While he received a
performance evaluation in 1998, he received no merit increase, but again neither
complained nor appealed the evaluation.


      To support Bechtel's argument that Riggert was placed on B shift as a spy by
senior officials in the Fire Department and the City, he offers, in part, segments of
Riggert's deposition testimony. One version of Riggert's testimony suggests that Bangs
and Denkler instructed him and others to document Bechtel's activities on B shift and that
Trivitt and Foster were aware of the instructions. Bangs and Denkler deny any
instruction to Riggert to spy on Bechtel and others. In other testimony, Riggert says
Trivitt and Foster were not present at the meeting. It is undisputed that while Riggert
documented Bechtel's activities while working on B shift, no written conclusions of
Riggert or Denkler, or anyone associated with the personnel transfers, were placed in
Bechtel's personnel file. There is no evidence that the City Administrator was ever
notified of any reports or actions of the transferred personnel concerning Bechtel.
During oral argument, Bechtel's counsel emphasized the existence of genuine issues of
material fact concerning the presence or absence of Trivitt at the meeting. Bechtel also

                                            -4-
claims error of the District Court in precluding him from obtaining copies of personnel
files.


                                              III.


         A lawsuit may be maintained under 42 U.S.C. § 1983 for a municipality's violation
of an employee's constitutional rights by actions of an individual representing official
policy.


         We conclude, therefore, that a local government may not be sued under §
         1983 for an injury inflicted solely by its employees or agents. Instead, it is
         when execution of a government's policy or custom, whether made by its
         lawmakers or by those whose edicts or acts may fairly be said to represent
         official policy, inflicts the injury that the government as an entity is
         responsible under § 1983.

Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 694,
98 S.Ct. 2018 (1978). Under this standard, Bechtel can assert a claim for relief against
the City for a constitutional tort if he meets two fundamental prerequisites. First, he must
show that the municipality acted to inflict an injury through an official proclamation of
the municipality's officers (officials whose edicts or acts represent official policy) or
through custom.4 Secondly, he must show constitutional injury.


         "We have assumed that an unconstitutional governmental policy could be inferred
from a single decision taken by the highest officials responsible for setting policy in that
area of the government's business." City of St. Louis v. Praprotnik, 485 U.S. 112, 123,
108 S.Ct. 915 (1988) (citing Owen v. City of Independence, 445 U.S. 622, 100 S.Ct.
1398 (1980)). "[A] 'policy' is an official policy, a deliberate choice of a guiding

         4
        It is undisputed that Trivitt had sufficient decision-making authority to bind the
City for purposes of 42 U.S.C. § 1983. Bechtel offers no evidence that the City is
liable because of a pattern or custom of widespread unconstitutional action.
                                              -5-
principle or procedure made by the municipal official who has final authority regarding
such matters." Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999) (citing Ware
v. Jackson County, 150 F.3d 873, 880 (8th Cir. 1998)).


       Bechtel argues that there is a genuine issue of material fact in dispute under the
first element of Monell. The District Court's opinion and Bechtel's counsel's argument
documented Riggert's conflicting statements concerning the presence of Trivitt at the
meeting in which Riggert was allegedly instructed to document the activities of Bechtel
on B shift. Riggert first stated that Trivitt was present at this meeting. However, he later
recanted and stated that he was not present at this meeting. According to Bechtel, the
presence or absence of Trivitt constituted a genuine issue of material fact and the District
Court erred in entering summary judgment in favor of the City.


       To survive a motion for summary judgment, Bechtel must come forward with
factual support that Trivitt acted in retaliation because of the exercise of Bechtel's
protected First Amendment rights. Considering the record in the light most favorable to
Bechtel, Trivitt and Foster, according to Riggert, was aware of Denkler's actions. There
is no evidence that Trivitt or Foster at any time ordered Riggert either to report to B shift
or to gather information that could support allegations of inappropriate conduct in
retaliation against Bechtel or that Foster or Trivitt took any retaliatory action against
Bechtel. Bechtel alternatively argues that Denkler, not Trivitt, had final decision-making
authority, because Riggert testified on one occasion that Denkler told him to spy on
Bechtel on B shift and "document anything that he felt was inappropriate." In his brief,
Bechtel recognizes that "the appellee's [City's] Fire Chief was in charge of establishing
rules, regulations, policies and procedures for the operation of the fire department." He
argues that because Denkler had this authority, he could bind the City for the claimed
retaliatory conduct. Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292
(1986), requires that "[m]unicipal liability attaches only where the decisionmaker
possesses final authority to establish municipal policy with respect to the action ordered."
Denkler had no authority as the "highest official responsible for setting policy." City of

                                             -6-
St. Louis v. Propratnik, 485 U.S. at 123. His authority was limited to the operations of
the Fire Department which were subject to review by the City Administrator.


       Next, Bechtel argues that Trivitt delegated his authority to Denkler, and that the
City is responsible for Denkler's actions. Bechtel reasons that because Denkler was
authorized to make employment decisions within the Fire Department, he had delegated
authority to bind the City as the final decision-maker. That authority was never delegated
or relinquished in any fashion by Trivitt. There is no evidence to support this delegation
of authority theory, and it is inconsistent with Bechtel's personal experience in the City's
appellate procedure.5


       Bechtel takes exception to the District Court's conclusion that he was never
disciplined as a result of Riggert's documentation of his conduct on B shift, because he
was placed on secret probation. In his brief, Bechtel states, "assuming arguendo that he
was not formally desciplined after the Spring of 1997 meeting, evidence shows he did not
get a performance revaluation by the September 15, 1997 deadline without which he
could not reach next pay scale." There is no evidence that Trivitt had any role in denying
this evaluation, and, in fact, to the contrary, he directed Denkler to make the revaluation.


       Facts most favorable to Bechtel reveal that Trivitt was aware of Denkler's orders
to place additional personnel on B shift to observe performance on that shift, and that
Riggert documented activities on B shift. Actions alleged to be in retaliation for Bechtel's
First Amendment rights were imposed by Denkler who clearly lacked final
decisionmaking authority.


       Finally, Bechtel fails to prove a constitutional injury because he cannot show that
any action of Trivitt resulted in an adverse employment action against him. In order to


       5
        Bechtel's participation in the City's appellate procedure confirms his recognition
of the final authority of the City Administrator over personnel matters.
                                            -7-
establish a claim for unlawful First Amendment retaliation under 42 U.S.C. § 1983, a
public employee must show that in addition to participation in a protected activity, he or
she suffered an adverse employment action and that there was a causal connection
between the protected activity and the adverse employment action.         See Hudson v.
Norris, 227 F.3d 1047, 1050-51 (8th Cir. 2000) (citing Graning v. Sherburne County,
172 F.3d 611, 615 (8th Cir. 1999)). “Although ‘actions short of termination may
constitute adverse actions . . .’, ‘not everything that makes an employee unhappy is an
actionable adverse action.’” Montandon v. Farmland Industries, Inc., 116 F.3d 355, 359
(8th Cir. 1997) (discussing an unlawful retaliation claim in the context of Title VII)
(quoting Smith v. St. Louis University, 109 F.3d 1261, 1266 (8th Cir. 1997); Smart v.
Ball State University, 89 F.3d 437, 441 (7th Cir. 1996)).      To constitute an adverse
employment action, “the action must have some adverse impact” on the employee.” Id.6
Defined another way, an adverse employment action must effectuate “a material change
in the terms or conditions of . . . employment.” Ledergerber v. Stangler, 122 F.3d 1142,
1144 (8th Cir. 1997) (discussing adverse employment actions in the context of a
retaliation claim brought along with a Title VII claim); see also Harlston v. McDonnell
Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994) (no prima facie case is made where
changes in duties or working conditions cause no materially significant disadvantage to
establish an adverse employment action).7


      6
       The Court in Montandon stated that the action complained of (a transfer) as
adverse did not “entail a change in position, title, salary, or any other aspect of
Montandon’s employment.” Montandon, 116 F.3d at 359. Furthermore, Montandon’s
performance evaluation, despite being thirty points lower than the year before, was not
used as the basis for any action against Montandon. Id. Bechtel currently maintains
the same position be held when the alleged retaliation occurred.
      7
         The cases discussing retaliation in the employment context are uniform in their
requirement that there be some material change in the Plaintiff’s conditions of
employment. See Scusa v. Nestle U.S.A. Co. Inc., 181 F.3d 958, 968-69 (8th Cir.
1999) (finding no adverse employment action where Plaintiff suffered no diminution
in title, salary or benefits, received her normal raise under the collective bargaining
                                            -8-
       Absent some evidence in the record which links statements, edicts or orders,
promulgated by or stated by Trivitt to a violation of Bechtel's constitutional rights, the
presence or absence of Trivitt at that alleged meeting is immaterial. No alleged adverse
employment action claimed to have been suffered by Bechtel can be linked to any effort
by the City to infringe on Bechtel's First Amendment rights. Because Bechtel has failed
to demonstrate that his First Amendment rights were violated by the City, Bechtel's first
point on appeal is denied.


       Bechtel argues in his second point on appeal that the District Court erred in
precluding him from obtaining copies of personnel files of other Fire Department
personnel. Bechtel claims that he was entitled to examine these files because the City
claimed, as a defense, that Bechtel was treated no differently than other Fire Department
employees. Bechtel cites to Missouri Nat'l Educ. Assoc. v. New Madrid County R-1,
810 F.2d 164, 166 (8th Cir. 1987).       However, in Missouri Nat'l Educ. Assoc., the
appellants had adduced evidence of adverse employment action by the appellees. That
is not the case here. Any possible error on the part of the District Court is harmless in
light of the failure by Bechtel to provide evidence that the City retaliated against him for




agreement, and received a requested transfer); see also Cross v. Cleaver, 142 F.3d
1059, 1073 (8th Cir. 1998) (employment actions sufficient to constitute an adverse
employment action are usually actions involving an actual or apparent wielding of
authority resulting in a material employment disadvantage).
                                            -9-
exercising his First Amendment rights.8 Accordingly, Bechtel's second point on appeal
is denied.


      Based upon the foregoing discussion, we affirm the District Court's grant of
summary judgment to the City of Belton.


A true copy.


  ATTEST:


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




      8
        The Court notes that Bechtel's original requests for production sought 143
categories of documents. After making his request for production of the payroll
records, the City served a written objection on Bechtel to his request for the payroll
files. Id. Bechtel did not file a motion to compel production of the records, but rather
raised the issue in a telephone conference. Bechtel later argued that he could not
respond to the City's assertion in its motion for summary judgment that he was not
treated differently from other similarly situated City employees because he had not
received the payroll records of certain employees. However, Bechtel did not attempt
to narrow the requested documents to those who were similarly situated to himself, and
he did not attempt to identify those persons who were similarly situated. See Connor
v. Rickitt & Coleman, Inc., 84 F.3d 1100, 1103 (8th Cir. 1996) (challenge to granting
summary judgment was denied, notwithstanding employee's allegation that she did not
have an adequate opportunity to conduct discovery before the district court made an
adverse summary judgment ruling, where she informed the Court of defendant's
objections to her discovery but never filed a motion to compel).
                                          -10-
