                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-3995
                                    ___________

Russell J. Morris,                      *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for Western
                                        * District of Missouri.
City of Chillicothe; Richard L. Knouse; *
D. John Edwards; Charles Haney;         *
Earle Teegarden; Maurice Zion; and      *
Pam Jarding,                            *
                                        *
             Appellees.                 *
                                  ___________

                              Submitted: October 18, 2007
                                 Filed: January 14, 2008
                                  ___________

Before BYE, BOWMAN, and SMITH, Circuit Judges.
                           ___________

SMITH, Circuit Judge.

      Russell J. Morris brought this action under 42 U.S.C. § 1983, claiming that the
police chief of the Chillicothe, Missouri, Police Department ("the department"),
various Chillicothe city council members, and the City of Chillicothe (collectively the
defendants)1 terminated him in retaliation for exercising his First Amendment right


      1
       The individual defendants are Police Chief Richard L. Knouse, City
Administrator D. John Edwards, and city council members Charles Haney, Earle
Teegarden, Maurice Zion, and Pam Jarding. The City of Chillicothe, Missouri, is also
a defendant.
of freedom of association with an attorney. The district court2 granted summary
judgment for defendants, concluding that Morris failed to show that his hiring an
attorney was a substantial or motivating factor in his termination. Morris appeals,
arguing that the district court erred in granting summary judgment because there was
sufficient circumstantial evidence to show (1) defendants' firing motive was his
retaining an attorney; and (2) the reasons proffered by defendants were pretextual. He
also appeals the district court's finding that he neither pleaded nor proved a right of
access claim. We affirm.

                                     I. Background
       The following facts are recited in the light most favorable to the non-moving
party, Russell Morris. Morris was hired by the department, as an entry level police
officer, in January 1998. He was promoted to sergeant in April 2001, and he remained
in that position until his termination on April 5, 2004.

       Morris's pre-firing employment record included documented performance
problems. Specifically, Morris had difficulty resolving conflicts with other employees.
Also, Morris ranked in the bottom one-third among other officers in the department
for the number of traffic stops executed over the final four years of his employment.
In 2002, Morris's captain formally notified him of concerns that Morris may have
misused sick time. In 2003, via an employee performance appraisal, Morris was
advised to pay closer attention to the image he projected in his work product and his
accountability in covering his shift. Also in 2003, Morris was reprimanded for
attending only half of the training sessions at a conference that the department paid
for him to attend. According to Morris, this was a misunderstanding because he told
the department that he would not attend the sessions in which he had prior training.




      2
        The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.

                                         -2-
       Morris also experienced interpersonal problems with other department
employees. The department's personnel policy states that an employee may be
disciplined for making false or malicious statements concerning any employee or
officer. Morris was aware that violations of this policy could lead to termination, but
admits that he told police chief Richard Knouse that another officer had taken a bribe
without knowing if the accusation was true. Morris also told fellow officers that a
particular female office manager's appearance made him think she was promiscuous.

       Late in the fall of 2003, Morris told a city councilman that the department was
experiencing morale problems. This councilman then told the city administrator,
defendant D. John Edwards, and the city attorney about Morris's concerns. On
February 10, 2004, Morris, along with officer Jason Sackrey, submitted a written
grievance letter to Administrator Edwards outlining problems they observed in the
department. The letter alleged that a fellow officer had used excessive force on an
arrestee, that the department had improperly expended city funds for overtime, and
that other police officers had falsified time reports. Within two weeks of the letter's
submission, Chief Knouse and Administrator Edwards met with the city attorney to
discuss the possibility of demoting Morris for spreading rumors and excessive use of
sick time. The city attorney recommended that Morris be terminated, but no decision
was made at that time.

       On February 27, 2004, the officer accused by Morris and Sackrey of using
excessive force assaulted Sackrey on city property. Soon after, on March 2, 2004, the
department held a mandatory meeting for all employees. During this meeting various
officers referred to Morris as a "back-stabber" as well as insulting him by calling him
various other names. Chief Knouse took no disciplinary action against the name-
calling officers. Morris, in light of the meeting, felt he needed to retain an attorney.
In the weeks after this meeting, several officers filed written grievances and
complaints against Morris.




                                          -3-
      On March 29, 2004, the city council met to consider Morris's status. Chief
Knouse recommended to the city council that Morris be reduced in rank because of
various complaints and Morris's previous performance issues. Approval by the city
council is necessary for all employee terminations or suspensions, and these actions
are generally based on a recommendation by the department head. Administrator
Edwards concurred with Chief Knouse's recommendation to demote Morris. The city
council, however, voted to suspend Morris, with the understanding that Administrator
Edwards would meet with Morris to discuss his employment situation. Chief Knouse
then suspended Morris based on the city council's action.

      On March 30, 2004, Morris's attorney sent a letter to the city attorney,
Administrator Edwards and Chief Knouse, advising them that Morris was now
represented by counsel. The next day, Chief Knouse sent an email to the entire
department advising that Morris had retained counsel and that department personnel
were not to speak to Morris regarding department or city matters.

       Chief Knouse ordered Morris to attend a meeting with Administrator Edwards
and himself on April 1, 2004. Morris did not attend this meeting because his counsel
could not be present. Morris's counsel sent the department a letter stating that he could
not attend. Morris's counsel instructed him not to attend.

       Also on April 1, the city council met again to discuss Morris's employment
status. The city attorney recommended that Morris be terminated, and three city
council members voted to give Administrator Edwards the authority to handle this
employment action against Morris. The city council gave Administrator Edwards the
authority to offer Morris a resignation option with a severance package. Defendant
council member Pam Jarding based her vote on Morris's failure to attend the meeting
in violation of a direct order to attend. Defendant council member Earle Teegarden's
vote was purportedly based on the city attorney's recommendation regarding Morris's
poor performance. Defendant council member Maurice Zion testified that he voted to
give Administrator Edwards the authority to take action because he believed that


                                          -4-
Morris disrupted the department, affecting the safety of the other officers and the
community.

      Morris claims that this city council meeting was improperly called to retaliate
against him for hiring an attorney, however city council members do not recall getting
new information about Morris's counsel between the two meetings on March 29, 2004
and April 1, 2004. After rejecting the city's offer to resign, Morris was subsequently
dismissed for "dereliction of duty, insubordination and creating a hostile work
environment" on April 5, 2004. At that same time Sackrey was told that the
department would be willing to reinstate him if he would sign a release regarding all
claims against the city. Sackrey rejected the offer and he was also terminated.

       On December 21, 2005, Morris filed the present action claiming that he was
terminated in violation of his First Amendment rights of free speech and free
association—Morris has since abandoned the free speech claim. Morris's complaint
included the following: "Defendants terminated plaintiff's employment in retaliation
for plaintiff's exercise of his First Amendment rights of free speech and expression on
matters of public concern and of association (after his retention of legal counsel to
represent him) and to suppress from further disclosure to the general public, the
citizens of the City of Chillicothe, and other governmental officials the information
reported and disclosed by plaintiff."

       On November 1, 2006, the district court granted defendants' motion for
summary judgment, finding that Morris did not produce any facts in support of his
contention that his retention of an attorney was a substantial or motivating factor in
his dismissal. The court also found that Morris failed to plead or provide evidentiary
support for his right of access claim.

                                 II. Discussion
     Morris appeals, arguing that the district court erred in granting summary
judgment. Specifically, Morris contends that he adduced sufficient circumstantial


                                         -5-
evidence to show that his retention of an attorney was a substantial or motivating
factor for the defendants' decision to terminate him. He further contends that the
defendants' proffered reasons were a pretext for the retaliatory termination. Morris
also appeals the district court's finding that he neither pleaded nor proved a right of
access claim. When considering the district court's grant of summary judgment, we
review findings of fact for clear error and conclusions of law de novo. ACLU
Nebraska Foundation v. City of Plattsmouth, 419 F.3d 772, 775 (8th Cir. 2005).

                                 A. Standard of Review
       Summary judgment is justified if "the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c). In ruling on a summary judgment motion, the district court must
consider the evidence in the light most favorable to the nonmoving party and give him
the benefit of all reasonable inferences in the record. Morgan v. A.G. Edwards & Sons,
Inc., 486 F.3d 1034, 1039 (8th Cir 2007). "The party opposing summary judgment
cannot rest solely on the pleadings, but instead must set forth specific facts showing
there is a genuine issue of material fact for trial. . . . Mere allegations, unsupported by
specific facts or evidence beyond the nonmoving party's own conclusions, are
insufficient to withstand a motion for summary judgment." Id. (internal citations
omitted).

        In considering a motion for summary judgment the court does not weigh the
evidence, make credibility determinations, or attempt to discern the truth of any
factual issue. Thomas v. Corwin, 483 F.3d 516, 526–27 (8th Cir. 2007). Rather, we
focus on whether a genuine issue of material fact exists for trial—an issue of material
fact is genuine if the evidence is sufficient to allow a reasonable jury verdict for the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

      Morris contends that the district court ignored his circumstantial evidence,
accepted defendants' version of the facts and neglected to give Morris the benefit of


                                           -6-
all reasonable inferences. After careful review of the record, we find Morris's
contention is unsupported. The district court included, and properly construed and
addressed, all facts relevant to Morris's freedom of association claim. We note the
district court did not address facts related to Morris's initial grievance, Sackrey, or the
potentially false complaints against Morris. Those facts, however, while they provide
background, are not relevant to Morris's freedom of association claim.

                        B. First Amendment Retaliation Claim
       This court has found that the First Amendment restrains the government from
retaliating against a public employee based on the employee's speech or associations.
Hughes v. Whitmer, 714 F.2d 1407, 1418 (8th Cir. 1983). In order for an employee to
state a claim under the First Amendment, he must show that his conduct was
constitutionally protected and that the protected conduct was a "substantial" or
"motivating" factor in the defendant's action which resulted in dismissal. Green v. St.
Louis Housing Authority, 911 F.2d 65, 70 (8th Cir. 1990). Whether the protected
conduct was a substantial or motivating factor in an employment decision is a question
of fact, but the sufficiency of the evidence to create an issue of fact for the jury is
solely a question of law. Cox v. Miller County R-I School Dist., 951 F.2d 927, 931
(8th Cir. 1991).

        We analyze First Amendment employment retaliation claims with a three-step
burden-shifting test. First, a public employee must show that he suffered an adverse
employment action that was causally connected to his participation in a protected
activity. Duffy v. McPhillips, 276 F.3d 988, 991 (8th Cir. 2002). Once the employee
satisfies his initial burden, the burden shifts to the employer to show a legitimate,
nondiscriminatory reason for his or her actions. Id. If the employer meets this burden,
the burden shifts back to the employee to show that the employer's actions were a
pretext for illegal retaliation. Id. This third step of showing that a defendant's
justification for firing is unworthy of credence is harder to overcome than the prima
facie case because evidence of pretext is viewed in the light of the employer's
justification. Smith v. Allen Health Systems, Inc. 302 F.3d 827, 834 (8th Cir. 2002).


                                           -7-
       Morris argues that the district court erred in its analysis by merging the prima
facie requirements into the issue of pretext. However, assuming without deciding that
Morris satisfied his initial burden of the prima facie case, summary judgment was still
proper because Morris has not shown that defendants' justifications were a pretext for
illegal retaliation. See Putman v. Unity Health System, 348 F.3d 732, 737 (8th Cir.
2003).

       Assuming that Morris met his burden under the prima facie case, we must next
consider if the defendants presented legitimate, nondiscriminatory reasons for Morris's
termination. Duffy v. McPhillips, 276 F.3d 988, 991–92 (8th Cir. 2002). Defendants
have met their burden here. Unrefuted evidence shows Morris's performance issues
predated his protected association with his attorney, including his ranking in the
bottom third of traffic stops, his spreading of a rumor, his abuse of sick leave, and his
non-attendance at a conference paid for by the department. Further, the record shows
that the city council voted to suspend Morris even before the department knew that he
had retained counsel, and the council's stated reasons for authorizing his termination
centered on the performance issues previously discussed.

        As the burden shifts back to Morris, he contends that the district court erred in
granting summary judgment for defendants because there was sufficient circumstantial
evidence to show that defendants' reasons for his termination were pretextual. Duffy
v. McPhillips, 276 F.3d 988, 991–92 (8th Cir. 2002). Meeting the burden under this
third step is more difficult for a plaintiff than at the prima facie stage because, here,
evidence of pretext and discrimination are viewed in the light of the employer's
justification. Smith, 302 F.3d at 834. Morris has not provided a basis upon which a
reasonable jury could find that defendants' justifications were pretextual.

      Pretext may be shown with evidence that an employer has proffered an
explanation with no basis in fact, with evidence that the plaintiffs recently received
favorable reviews, or with evidence that the employer's proffered reason for its
employment decision has changed substantially over time. Id. Here, defendants'


                                          -8-
nondiscriminatory explanation has a basis in the factual record, defendants'
justification for Morris's termination has been consistently centered on his
performance issues, and the record does not contain any recent favorable reviews for
Morris.

       Morris emphasizes the time-line of events to support his allegations—on March
29th the city council voted only to suspend Morris, on March 30th Morris's attorney
made himself known to the department and the city, and on April 1st the city council
voted to give Edwards the authority to terminate Morris. Temporal proximity alone,
however, is not enough to support a finding of pretext. We have held that the fact that
a plaintiff is terminated after engaging in a protected activity is not sufficient to
support an inference of pretext, even though temporal proximity may sometimes be
enough to get a plaintiff past the prima facie stage. Smith, 302 F.3d at 834. In this
case, the timing of events is not enough to support a finding of pretext. Here, the
record reflects that defendants' were concerned about Morris's performance long
before he retained counsel.

       Morris also claims that the department's departure from their progressive
discipline policy shows pretext. Deviance from a progressive discipline policy can be
evidence of pretext, but here, the department's employee manual and related
documents specifically state that the department is not bound by any number of
warnings and that it can fire at-will employees without warning if necessary. We have
found such caveats in an employee policy negate its persuasiveness in showing
pretext. Id at 835.

      Morris also focuses on the council's treatment of his co-officer, Sackrey, as
evidence of pretext. Sackrey is not a party to this case, but, as explained above,
Sackrey filed the same grievance against the department as Morris and was later
terminated. Morris points out that one city council member claims she made the
decision to terminate Morris based on the fact that he had been insubordinate by not
attending the April 1st meeting. Morris draws attention to the fact that Sackrey also


                                         -9-
did not attend that meeting, and instead of deciding to terminate Sackrey based on that
fact, the city council decided he could stay with the department if he waived his claims
against the department. However, this comparison hurts Morris more than it helps him
because Sackrey and Morris hired the same attorney, and Sackrey hired the attorney
before Morris did. The city knew Sackrey had hired this attorney and yet they offered
to keep Sackrey on the force. If the department and the city wanted to retaliate against
officers for hiring attorneys, they likely would not have offered Sackrey continued
employment.

        Viewing the evidence in the light of the employer's justification, Morris has not
provided a basis upon which a reasonable jury could find that defendants'
justifications for terminating Morris were pretextual. Therefore, the district court did
not err in granting summary judgment for defendants.

                                 C. Right of Access
       Lastly, Morris argues that the district court erred in finding that he had not
sufficiently pled his right of access claim. We review this issue de novo. ACLU
Nebraska Foundation, 419 F.3d at 775.

       We have held that "[t]he right of access to the courts is well-established. The
right applies not only to the actual denial of access to the courts, but also to situations
in which the plaintiff has been denied meaningful access by some impediment put up
by the defendant. While the right to access the courts exists, the Supreme Court and
our court have recognized that the constitutional basis for the right is 'unsettled.'"
Scheeler v. City of St. Cloud, 402 F.3d 826, 830 (8th Cir. 2005). In some
circumstances, we have held that the right to access derives from the First
Amendment. Id. In order to prevail on such a claim, a plaintiff must show that the
defendants acted with some intentional motivation to restrict his access to the courts.
Id. The plaintiff must show government action was designed to prevent access to the
courts. Id.



                                           -10-
       The district court found that in Morris's complaint, he did not plead a right of
access claim. The language where Morris alleges that he pleaded this claim follows:
"Defendants terminated plaintiff's employment in retaliation for plaintiff's exercise of
his First Amendment rights of free speech and expression on matters of public concern
and of association (after his retention of legal counsel to represent him) and to
suppress from further disclosure to the general public, the citizens of the City of
Chillicothe, and other governmental officials the information reported and disclosed
by plaintiff." We agree with the district court that Morris's complaint fails to plead a
right of access claim. The defendants could not have been put on notice by this
language that they were alleged to have denied Morris access to the courts.

       Further, reviewing the record in the light most favorable to Morris, he has not
provided evidence that defendants intentionally conspired to keep him out of court.
Morris claims that once the city council heard that he had an attorney they called a
special meeting to fire him, but he has presented no evidence to support that claim.
Thus, Morris has failed to provide evidence upon which a reasonable jury could find
that he was terminated as a result of defendants' intentional motivation to deny him
access to the courts.

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




                                         -11-
