                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                   No. 98-1796
                                  ___________

Thelma Hall,                          *
                                      *
            Plaintiff/Appellee,       *
                                      *
     v.                               *
                                      * Appeal from the United States
Missouri Highway & Transportation     * District Court for the
Commission,                           * Eastern District of Missouri.
                                      *
            Defendant,                *
                                      *
Ron Hopkins,                          *
                                      *
            Defendant/Appellant.      *
                                 ___________

                            Submitted: September 13, 2000
                                Filed: December 21, 2000
                                ___________

Before WOLLMAN, Chief Judge, BRIGHT, and BYE, Circuit Judges.
                            ___________

BRIGHT, Circuit Judge.

      Thelma Hall sued her employer, the Missouri Highway and Transportation
Commission ("MHTC"), claiming that her supervisor, Ron Hopkins, violated her First
Amendment rights by retaliating against her when she complained that he
discriminated against her because she was an older woman. The district court denied
Hopkins's motion for summary judgment based on qualified immunity. Hopkins
appeals the district court's1 denial of his motion. We affirm.

I.    BACKGROUND

      The MHTC is a part of the executive branch of the Missouri State government.
The MHTC oversees the operations of the Missouri Department of Transportation
("MoDOT"). MoDOT has divided Missouri into ten geographical districts, each
having its own MoDOT administrative office. Ron Hopkins was the Human
Resources Manager for the district six office. Thelma Hall was his secretary.

       Hall started working at MoDOT as a typist in 1969. She was promoted to
secretary in 1970, and to senior secretary in 1971. Hopkins selected Hall as his
secretary in 1987, and he has always regarded her as a competent employee. Her most
recent performance appraisal comments: "Works extremely carefully. Attention to
detail is particularly strong," and, "[a] hard worker who doesn't like leaving work
undone. Output is above level that would be considered acceptable." (Add. at 2.)
Hall's other performance appraisals contain similar remarks. Over the past several
years, however, these same performance appraisals also refer to Hall's constant
complaining.

       Hall claims discrimination against older women in her department. She maintains
that older secretaries with seniority were passed over for promotions while younger
secretaries were promoted. She argues that Hopkins showed a preference for younger
women in 1993, when he hired a young college graduate to fill the newly created human
resources specialist position. She further argues that MoDOT discriminated when it



      1
       The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri.

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classified the senior secretaries, primarily women over forty years old, at a lower grade
than the younger human resources specialists.

      On March 17, 1995, Hall told Hopkins that Melissa Hubbs, the human resources
specialist, made a coding mistake. Hopkins asked Hall to fix the error. In response,
Hall suggested that Hubbs correct her own mistake so that she might learn from it.
Hall also said that she had more pressing work and would correct the error when she
had more time. Although the exact exchange is disputed, the parties agree that
Hopkins went to his supervisor and his supervisor asked Hall to leave work. Later,
Hall was terminated.

II.   DISCUSSION

      A district court's denial of a summary judgment based on qualified immunity is
immediately appealable. Collins v. Bellinghausen, 153 F.3d 591, 595 (8th Cir. 1998).
We review a grant of summary judgment de novo, LeBus v. Northwestern Mut. Life
Ins. Co., 55 F.3d 1374, 1376 (8th Cir. 1995); we review a question of qualified
immunity de novo, Jackson v. Everett, 140 F.3d 1149, 1151 (8th Cir. 1998); we view
all the facts in the light most favorable to the nonmoving party; and we give the
nonmoving party the benefit of all reasonable inferences that can be drawn from the
facts, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Summary judgment is appropriate where there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

      Defendant Hopkins argues that the district court erred in determining that he is
not entitled to qualified immunity. Plaintiff Hall maintains that Hopkins is not entitled
to qualified immunity because her discrimination complaints constitute protected
speech under the First Amendment.




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       "Qualified immunity shields government officials from suit unless their conduct
violated a clearly established constitutional or statutory right of which a reasonable
person would have known." Yowell v. Combs, 89 F.3d 542, 544 (8th Cir. 1996)
(citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To withstand the application
of qualified immunity, a plaintiff must assert a violation of a constitutional right; that
right must have been clearly established at the time of the violation; and, given the facts
most favorable to the plaintiff, there must be no genuine issues of material fact as to
whether a reasonable official would have known that the alleged action violated that
right. Id. (citing Foulks v. Cole County, Mo., 991 F.2d 454, 456 (8th Cir. 1993)); see
also Buckley v. Rogerson, 133 F.3d 1125, 1129 (8th Cir. 1998) (citing Burnham v.
Ianni, 119 F.3d 668, 673-74 (8th Cir. 1997) (en banc)).

       First, we must determine whether Hall has claimed that her constitutional rights
were violated. Munz v. Michael, 28 F.3d 795, 799 (8th Cir.1994) (citing Beck v.
Schwartz, 992 F.2d 870, 871 (8th Cir. 1993) (per curiam)). Hall claims that she was
terminated in retaliation for exercising her First Amendment right to free speech. See,
e.g., Rankin v. McPherson, 483 U.S. 378, 383 (1987) ("It is clearly established that a
State may not discharge an employee on a basis that infringes that employee's
constitutionally protected interest in freedom of speech."). Therefore, Hall has
claimed that she suffered a violation of her constitutional rights to freedom of speech.

       Second, we must determine whether Hall's speech fell under the protection of
the First Amendment. To determine whether her speech was protected by the First
Amendment, we must determine whether Hall's speech touched on a matter of public
concern. Sexton v. Martin, 210 F.3d 905, 910 (8th Cir. 2000).

       Hopkins concedes that Hall's speech touched upon a matter of public concern.
See Connick v. Myers, 461 U.S. 138, 148 n.8 (1983) (determining that racial
discrimination is a matter of public concern); see also Crain v. Board of Police
Comm'rs, 920 F.2d 1402, 1411 (8th Cir. 1990) (alleging racial discrimination by a

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superior officer is a matter of public concern) (citing Connick, 461 U.S. at 146). As
the district court concluded, "the record suggests that Plaintiff complained of an
overall pattern of discrimination against older women in her district." (Add. at 17.)
Therefore, for the purpose of summary judgment in this case, Hall made a sufficient
showing of a First Amendment violation because her complaints related to a matter of
public concern.

       Before we employ the Pickering balancing test, we must determine whether
Hopkins has produced sufficient evidence that Hall's speech disrupted MoDOT's
operations. See Burnham, 119 F.3d at 678. Hopkins claims that Hall's speech
disrupted MoDOT's operations. Specifically, he makes the following claims: He
repeatedly told Hall that her behavior was inappropriate, he spoke with his supervisor
about the problem, and he often modified his own work habits to accommodate Hall.
Hopkins has produced sufficient evidence that Hall's conduct disrupted MoDOT's
operations and, therefore, we must apply the Pickering balancing test.

        The district court reviewed the evidence in a light most favorable to Hall and
concluded that the Pickering balancing test tipped in favor of Hall's First Amendment
rights. In particular, the district court noted affidavits submitted by two women
testifying that they had made discrimination complaints to Hopkins and that Hopkins
was hostile and unsympathetic. In response, Hopkins maintains that he is entitled to
qualified immunity because, once an employer engages the Pickering balancing test,
the right cannot be clearly established. Hall argues that the disruption caused by her
complaints did not have a sufficiently adverse impact on MoDOT's efficiency to
outweigh her interest in speaking out about discrimination.

      We have held that when the Pickering balancing test is at issue, the asserted First
Amendment right will rarely be considered clearly established. Grantham v. Trickey,
21 F.3d 289, 293 (8th Cir. 1994) (quoting Buzek v. County of Saunders, 972 F.2d
992, 997 (8th Cir. 1992); see also Bartlett v. Fisher, 972 F.2d 911, 916 (8th Cir.

                                          -5-
1992)). We also have held, however, that no right is more clearly established than
freedom of speech, Casey v. City of Cabool, Mo., 12 F.3d 799, 804 (8th Cir. 1993),
and that a state may not discharge an employee on a basis that infringes that
employee's constitutionally protected interest in freedom of speech, id. (quoting
Rankin, 483 U.S. at 388). We have also determined that speech alleging illegal
misconduct by public officials occupies the "highest rung of First Amendment
hierarchy." Sexton, 210 F.3d at 913 (quoting Barnard v. Jackson County, Mo., 43
F.3d 1218, 1225 (8th Cir.), cert. denied, 516 U.S. 808 (1995)). When the employee's
exercise of First Amendment rights conflicts with the employer's interest in regulating
the speech of its employees, we must weigh the conflicting interests and, "arrive at a
balance between the interest of the [employee], as a citizen, in commenting upon
matters of public concern and the interest of the State, as an employer, in promoting
the efficiency of the public services it performs through its employees." Pickering v.
Board of Educ., 391 U.S. 563, 568 (1968).

       Under the Pickering test, we apply six factors in balancing the plaintiff's interest
in their speech and the employer's interest in promoting efficiency. These factors
include: (1) the need for harmony in the office; (2) whether the government's
responsibilities require a close working relationship; (3) the time, manner, and place of
the speech; (4) the context in which the dispute arose; (5) the degree of public interest
in the speech; and (6) whether the speech impeded the employee's ability to perform
his or her duties. Bowman v. Pulaski County Special Sch. Dist., 723 F.2d 640, 644
(8th Cir. 1983) (citing Connick, 461 U.S. at 151-54); see also Belk v. City of Eldon,
228 F.3d 872, 880-81(8th Cir. 2000).

       We conclude that Hopkins is not entitled to qualified immunity. The record
before us shows that Hopkins and Hall had worked closely together. The evidence
also shows that their relationship deteriorated, and that by 1995, it developed into an
enmity. Hopkins acted unprofessionally; he raised his voice to Hall, he slammed
doors, and he walked out on Hall while she was speaking to him. Hopkins also

                                           -6-
belittled Hall by making disparaging comments and by asking her to perform
unnecessary work. Hall complained often and in a loud voice. Hall tried to lodge her
discrimination complaints on a number of occasions, she was rebuffed by Hopkins,
and by Hopkins's superiors, and she was discouraged from filing a formal complaint.
In fact, several women made discrimination complaints to Hopkins and he was
unresponsive and hostile. It is true that Hall's complaints disrupted MoDOT.
However, we think that citizens have a strong interest in speaking out about
discrimination and, therefore, under the record before us, we believe that the Pickering
test tips in favor of Hall's protected speech.

III.   CONCLUSION

      For the foregoing reasons, the district court properly denied Hopkins's motion
for summary judgment.

       Affirmed.

       A true copy.

             Attest:

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




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