                    United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 99-3414
                                  ___________

Darwin Anderson and                      *
Gregory Fisk,                            *
                                         *
              Appellants,                *
                                         *
       v.                                *
                                         *
State of Nebraska, Department            *
of Public Institutions/Lincoln           *
Regional Center; Jai Sookram,            *
Individually and in His Official         * Appeal from the United States
Capacity; Rose Kaufman,                  * District Court for the District
Individually and in Her Official         * of Nebraska.
Capacity; Melinda White,                 *
Individually and in Her Official         *        [UNPUBLISHED]
Capacity; Pat Mulvaney,                  *
Individually and in Her Official         *
Capacity; and Bill H. Zinn, Individually *
and in His Official Capacity,            *
                                         *
              Appellees.                 *
                                    ___________

                            Submitted: June 13, 2000

                                 Filed: July 20, 2000
                                  ___________

Before BOWMAN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
                         ___________
PER CURIAM.

       Darwin Anderson and Gregory Fisk, who were employed as security specialists
by the State of Nebraska at the Lincoln Regional Center (LRC), were charged with
caring for patients commonly known as the criminally insane. After one such patient
escaped, Messrs. Anderson and Fisk's employment was terminated. They then brought
this action, claiming that they were fired on account of their sex, in violation of Title
VII of the Civil Rights Act of 1964, see 42 U.S.C. § 2000e-2(a)(1), and the equal
protection clause of the fourteenth amendment; that they were not reinstated to their
jobs in retaliation for having complained that they were discharged in violation of Title
VII, see 42 U.S.C. § 2000e-3(a); and that they were fired in violation of their first
amendment rights. After a four-day trial, the magistrate judge1 granted the defendants'
motion for judgment as a matter of law, see Fed. R. Civ. P. 50(a), on all claims. The
plaintiffs appeal and we affirm.

        The plaintiffs' sex discrimination claim was grounded on the assertion that a
female security specialist whose patient had escaped while he was in her charge had
not been disciplined at all, while they were terminated in what were for all practical
purposes the same circumstances. We are, first of all, not at all certain that proof of a
single incident of a same or similar character involving a person of the opposite sex is
sufficient to raise an inference of sex discrimination in violation of Title VII or the
equal protection clause. In any event, however, as the magistrate judge pointed out,
in this case the plaintiffs were not similarly situated to the female security specialist to
whom they wish to be compared. The plaintiffs failed to keep their patients in view
while they were outside on a smoking break, as they were required to do, and they also
failed to make the required head count when patients left the ward and returned to it.


       1
       The Honorable David L. Piester, United States Magistrate Judge for the District
of Nebraska, sitting by consent of the parties. See 28 U.S.C. § 636(c)(1); see also
Fed. R. Civ. P. 73(a).

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The female security specialist, on the other hand, had kept her patient in full view and
had reported his escape immediately after he had climbed a wall. There was,
moreover, no substantial evidence that she had violated any rule of the LRC that
allowed her patient to effect his escape. The plaintiffs' sex discrimination claim
therefore fails for lack of proof.

       The plaintiffs' retaliation claim was that they were not reinstated to their jobs
because they had complained to the Equal Employment Opportunity Commission that
they were discharged on account of their sex, see 42 U.S.C. § 2000e-3(a), § 2000e-5.
In order to avoid judgment as a matter of law on this claim, the plaintiffs' proof must,
of course, raise an inference that some causal connection existed between their
complaint to the EEOC and the LRC's failure to reinstate them. Here, that proof is
simply lacking. The plaintiffs point to the fact that a third complainant in this suit, one
Manual Gamez, who did not file a complaint with the EEOC, was reinstated to his job,
and the plaintiffs were not. But the defendants gave Mr. Gamez his job back because
he pursued his administrative appeals and the Nebraska State Personnel Board ordered
his reinstatement. The plaintiffs, by contrast, abandoned their bid for reinstatement at
an early point in the administrative process. As the magistrate judge noted, moreover,
there was no evidence that the plaintiffs ever asked the LRC for reinstatement
thereafter.

        We are likewise of the view that the magistrate judge did not err in granting
judgment to the defendants on the first amendment claim. There was a great deal of
evidence that the plaintiffs and others engaged in pointed discussions with the
defendants concerning a change in the LRC's smoking policy. After a careful reading
and consideration of the record, however, we agree entirely with the magistrate judge
that the matters under discussion were not matters of public concern, as the relevant
cases define that term, and so the plaintiffs failed to make out a submissible case on
their first amendment claim. The plaintiffs' criticism of the new policy centered almost
entirely on its supposed risks to the health and safety of the patients and staff, and thus

                                           -3-
did not relate to some "matter of political, social, or other concern to the community,"
Connick v. Myers, 461 U.S. 138, 146 (1983). There was, it is true, some testimony
about the increased danger of escapes that the new policy might create, and such a risk
might well qualify as a matter of public concern; but that testimony was minimal and
it came from a complainant who has not appealed. In addition, such concerns as were
expressed occurred in a private forum, not a public one, a circumstance that we have
held is relevant in deciding that the first amendment does not protect a public employee
from suffering adverse consequences for speaking out. See Bausworth v. Hazelwood
School District, 986 F.2d 1197, 1198-99 (8th Cir. 1993). In the circumstances, we
think that the magistrate judge quite rightly entered judgment against the plaintiffs on
their first amendment claim.

      A true copy.

             Attest:

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




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