                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 00-2051
                                  ___________

Don Thompson                            *
and Caryl Thompson,                     *
                                        *
            Appellants,                 *
                                        *
      v.                                *   Appeal from the United States
                                        *   District Court for the Western
Carl Adams, Ed Bean,                    *   District of Arkansas.
Niels Eskildsen, Harry Graham,          *
and Doug VanDeMark, Sr.,                *
Each Individually and In His            *
Capacity as City Councilman;            *
Bob Doolin, Individually and In         *
His Capacity as Mayor; and              *
City of Bull Shoals, A Political        *
Subdivision of the State of Arkansas,   *
                                        *
            Appellees.                  *

                                  ___________

                            Submitted: February 14, 2001

                                 Filed: October 12, 2001
                                  ___________

Before WOLLMAN, Chief Judge, and BOWMAN and MORRIS SHEPPARD
      ARNOLD, Circuit Judges.
                              ___________
MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Approximately five weeks after Caryl Thompson addressed the city council of
Bull Shoals, Arkansas, with respect to actions of various council members that she
felt were unlawful, the mayor, with the support of the council, fired her husband, Don
Thompson, from his position as city street superintendent. He had worked for the city
for twenty years.

       The Thompsons sued the city, the mayor, and the council members, alleging
that they denied Mr. Thompson's due process rights under the fourteenth amendment
by firing him without notice, a statement of reasons, and a pre-termination hearing,
and that the post-termination hearing that he received was inadequate because of bias
on the part of the mayor and the council members. The Thompsons also contended
that Mr. Thompson was fired in retaliation for his wife's remarks at the council
meeting, thus violating their rights under the first amendment. (For the sake of
simplicity, hereafter we refer to the defendants collectively as "the city.")

       In their complaint and obliquely in their appellate brief, the Thompsons also
seem to assert an equal protection claim under the fourteenth amendment, but
apparently they did not pursue that issue in the district court. In their appellate brief,
they discuss equal protection questions only as support for their contention that the
city's purported reasons for firing Mr. Thompson were pretextual. We therefore
conclude that any equal protection claim that was raised has been abandoned.

      The defendants moved for summary judgment, arguing first that Mr. Thompson
was an "at-will" employee under Arkansas law and therefore possessed no due
process rights with respect to his job, and second that no evidence existed to show a
causal link between Mrs. Thompson's remarks and Mr. Thompson's firing. The




                                           -2-
district court granted summary judgment to the defendants on those grounds, and the
Thompsons appeal. We affirm the judgment of the district court.1

                                         I.
      We turn first to Mr. Thompson's due process claim. As a threshold issue, we
must decide whether, as a matter of law, Mr. Thompson was protected by the due
process guarantees of the fourteenth amendment, that is, whether the terms of his
employment were such that, under the Constitution, he had a property interest in his
job. Even if he did, he would not necessarily be entitled to reinstatement; the city
would, however, have to grant him a hearing, if he requested one, where he could be
informed of the grounds for his firing and where he could respond to the reasons
given for his firing. See Perry v. Sindermann, 408 U.S. 593, 603 (1972).

      Mr. Thompson was protected by the due process guarantees of the fourteenth
amendment only if he had "a legitimate claim of entitlement" to his job, Board of
Regents v. Roth, 408 U.S. 564, 577 (1972). We do not look to federal law to
determine whether such a claim exists; rather, state law or some other "independent
source," id., amounting to "mutually explicit understandings," Perry, 408 U.S. at 601,
must establish such an entitlement.

        The gist of Mr. Thompson's argument is that although Arkansas law
customarily considers employment relationships to be "at will," i.e., without security
for employees that they will be fired only for cause, see Gladden v. Arkansas
Children's Hospital, 728 S.W.2d 501, 504-05 (Ark. 1987), see also Crain Industries,
Inc. v. Cass, 810 S.W.2d 910, 913 (Ark. 1991), and Drake v. Scott, 823 F.2d 239, 241
(8th Cir. 1987), cert. denied, 484 U.S. 965 (1987), the city's employment policies and
procedures manual is an "independent source," Roth, 408 U.S. at 577, that establishes


      1
      The Honorable H. Franklin Waters, United States District Judge for the
Western District of Arkansas.

                                         -3-
a property interest for a city employee in his or her job. In this respect,
Mr. Thompson contends that, at the least, he has provided sufficient evidence to show
that there is a genuine issue of material fact, see Fed. R. Civ. P. 56(c), on the question
of whether the city's employment manual establishes security for an employee against
being fired except for cause and, therefore, provides Mr. Thompson with a property
right in his job.

                                           II.
       Mr. Thompson directs our attention first to the employment manual's section
on "matters affecting the status of employees." Language in that section delineates
a grievance procedure in the event of disciplinary action (including firing an
employee) and states that the city will give written notice of any disciplinary action
to be, or already, taken. The manual also states that each employee is entitled to
review of any disciplinary action by means of successive consideration of an
employee's written grievance by the employee's immediate supervisor, the employee's
department head, the mayor, and the city council. Finally, the manual includes the
statement that when the city intends to fire an employee, the city will provide "written
reasons that can be supported at a pre-termination hearing." Mr. Thompson asserts
that all of these provisions amount to a promise by the city that it will not fire any
employee except for cause and thus establish the necessary property interest for him.

        The manual also states, however, in the "employment policies" section, that the
city is an "at-will employer ... [and] may terminate the employment relationship at any
time for any reason with the understanding that [the city] has [no] obligation to base
that decision on anything but ... intent not to continue the employment relationship."
That section of the manual goes on to add that "[n]o policies, comments, or writings
made [in this manual] or during the employment process shall be construed in any
way to waive [the] provision" regarding "at-will" employment. The essence of this
provision is repeated in the section on "matters affecting the status of employees,"
which declares that "all employment relationships with the City ... are on an at-will

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basis." That text concludes with the statement that "although the City ... hopes that
the relationship with employees is long term and mutually rewarding, the City
reserves the right to terminate the employment relationship of any employee at any
time."

       The Arkansas Supreme Court has flatly stated that unless an employment
manual contains an express provision that the employer may not fire an employee
except for cause, the employment relationship is "at will." See Gladden, 728 S.W.2d
at 505. Both this court, following Arkansas law, and the Arkansas Supreme Court
have consistently held that, where an employment manual contains no language
declaring that an employee will be fired only for cause, nothing abrogates the
employee's "at-will" status, short of an explicit promise to the contrary in a seniority
agreement, see Crain Industries, Inc., 810 S.W.2d at 911-12, or in oral statements by
a supervisor reassuring employees that they would not be fired immediately for
failing a drug test, see Qualls v. Hickory Springs Manufacturing Company, Inc., 994
F.2d 505, 506, 509 (8th Cir. 1993). An implied promise is not enough. See Gladden,
728 S.W.2d at 505.

       Neither a list of grounds for firing an employee, see Mertyris v. P.A.M.
Transport, Inc., 832 S.W.2d 823, 825 (Ark. 1992), see also Gladden, 728 S.W.2d at
505, nor a description of increasingly more serious disciplinary actions to which an
employee may be subject, see Black v. Barnett, 999 F.2d 1295, 1296 (8th Cir. 1993)
(per curiam), nor the delineation of a process for review of disciplinary actions, see
Gladden, 728 S.W.2d at 505, nor a reference to a mandatory pre-termination hearing,
see Johnson v. City of West Memphis, 113 F.3d 842, 844 (8th Cir. 1997), is sufficient
to alter an employee's "at-will" status in Arkansas. In addition, the presence of
language in an employment manual asserting the employer's right to fire an employee
at any time is even stronger evidence that the manual creates no guarantee for
employees that they will be fired only for cause. See, e.g., Black, 999 F.2d at 1296.



                                          -5-
       In our view, the provisions of the city's employment manual that
Mr. Thompson cites are no different, in kind or degree, from the provisions that this
court and the Arkansas Supreme Court have held are insufficient to establish an
employee's property interest for purposes of a due process claim under the fourteenth
amendment. The provisions of the city's employment manual are thus inadequate to
establish a genuine issue of material fact, see Fed. R. Civ. P. 56(c), with respect to the
creation of a property interest for Mr. Thompson in his job. The city being entitled
to judgment as a matter of law on this issue, therefore, we affirm the district court's
grant of summary judgment to the defendants with respect to Mr. Thompson's due
process claim.

                                         III.
        We turn next to the Thompsons' first amendment speech claims. In their
appellate briefs, the Thompsons offer no argument whatsoever with respect to any
protected speech other than that of Mrs. Thompson. At oral argument, however, the
Thompsons asserted that Mr. Thompson also engaged in protected speech, namely,
during discussions with the mayor about overtime pay. This assertion was never
made in any of the district court proceedings, and we therefore decline to consider it
in this appeal. Consequently, we need not consider the question of whether any such
speech by Mr. Thompson was in fact protected by the first amendment.

       Because of the lack of precision in the Thompsons' complaint, it was apparently
not clear to the district court (and indeed is not clear to us) whether Mrs. Thompson
was asserting a first amendment speech claim based on some act by the city that
injured her. At the summary judgment stage, however, the Thompsons offered
neither argument nor evidence that Mrs. Thompson was or might be thus injured.
Without at least arguable injury, Mrs. Thompson lacked standing to pursue a claim
for the violation by the city of her first amendment speech rights. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); see also 13 C. Wright, A. Miller,



                                           -6-
and E. Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3531.4, at 418
(1984).

       The district court did not explicitly characterize Mrs. Thompson's claim as one
that she lacked standing to bring and did not explicitly dismiss the claim. In its
discussion of all of the Thompsons' first amendment speech claims, however, the
court cited as authority Kounitz v. Slaatten, 901 F. Supp. 650 (S.D. N.Y. 1995), a case
that does rely on standing principles as the basis for dismissing the first amendment
speech claim of a plaintiff in an analogous position to Mrs. Thompson. See id. at
654-55. We therefore conclude that, if indeed Mrs. Thompson was making a first
amendment speech claim on her own behalf, the district court dismissed that claim
because she lacked standing to bring it. We affirm that ruling by the district court.

       We turn, then, to a consideration of Mr. Thompson's claim that the city acted
unlawfully by firing him in retaliation for Mrs. Thompson's remarks at the city
council meeting. The gist of Mr. Thompson's claim is that the first amendment
protects certain speech and therefore that firing him in retaliation for protected speech
by his wife violated the first amendment. Mr. Thompson is, of course, correct when
he states that the first amendment protects speech. What the first amendment
provides more particularly, however, is the guarantee that protected speech may not
be inhibited, or "chilled," because of the acts or threatened acts of another. See, e.g.,
Shimer v. Washington, 100 F.3d 506, 508-09 (7th Cir. 1996).

       We noted earlier that the Thompsons offered no evidence of any actual or
potential inhibitory effect on Mrs. Thompson's speech consequent to Mr. Thompson's
being fired. We concluded, therefore, that Mrs. Thompson lacked the requisite injury
to bring such a claim and, accordingly, lacked standing to do so. Mr. Thompson
lacked standing for the same reason; to put it simply, the Thompsons have offered no
evidence of any injury to the free speech rights of either of them occasioned by



                                          -7-
Mr. Thompson's being fired. We therefore affirm the district court's dismissal of
Mr. Thompson's first amendment speech claim.

                                           IV.
        One of the reasons why the district court granted summary judgment to the city
is that the Thompsons neither asserted, nor even indirectly offered any factual support
for, a retaliation claim grounded in a first amendment right of intimate association,
see Singleton v. Cecil, 133 F.3d 631, 635 (8th Cir. 1998), aff'd in pertinent part,
Singleton v. Cecil, 176 F.3d 419, 423 (8th Cir. 1999) (en banc), cert. denied, 528 U.S.
966 (1999), or a fourteenth amendment right of marital privacy (sometimes
characterized as a substantive due process right), see Singleton, 133 F.3d at 634-35,
aff'd in pertinent part, Singleton, 176 F.3d at 423. With respect to the first
amendment, see also Sowards v. Loudon County, Tennessee, 203 F.3d 426, 432, 433
n.2 (6th Cir. 2000), cert. denied, 531 U.S. 875 (2000), and Adler v. Pataki, 185 F.3d
35, 44 (2d Cir. 1999). With respect to the fourteenth amendment, see also Morfin v.
Albuquerque Public Schools, 906 F.2d 1434, 1439 (10th Cir. 1990).

       In their appellate briefs, the Thompsons explicitly disclaim an appeal of the
district court's holding with regard to a first amendment right of intimate association
or a fourteenth amendment right of marital privacy. We therefore need not address
those issues.

                                         V.
      For the reasons stated, we affirm the judgment of the district court.

      A true copy.

             Attest:

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

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