                United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-3244
                        ___________________________

                 Irene Maria Zimbobway Schwartze Bramblett

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                 City of Columbia, Missouri; Michael Matthes

                            lllllllllllllllllllll Defendants

                                   Kenneth Burton

                     lllllllllllllllllllll Defendant - Appellant

                                  Cavanaugh Noce

                             lllllllllllllllllllll Defendant
                                     ____________

                    Appeal from United States District Court
              for the Western District of Missouri - Jefferson City
                                ____________

                             Submitted: June 16, 2016
                              Filed: August 4, 2016
                                 ____________

Before SMITH, GRUENDER, and BENTON, Circuit Judges.
                          ____________

SMITH, Circuit Judge.
       Irene Maria Zimbobway Schwartze Bramblett ("Schwartze") sued the City of
Columbia, Missouri ("City"); City Manager Michael Matthes; Chief of Police
Kenneth Burton; and Deputy City Counselor Cavanaugh Noce, alleging, inter alia,
under 42 U.S.C. § 1983 that the City violated her constitutional right to procedural
due process in violation of the Fourteenth Amendment by terminating her
employment. The defendants moved for summary judgment, which the district court1
granted in part and denied in part. Relevant to the present appeal, the district court
denied the defense of qualified immunity asserted by Chief Burton in response to
Schwartze's procedural due process claim.2 Chief Burton now appeals the denial of
qualified immunity. We dismiss the appeal for lack of jurisdiction.

                                  I. Background
      Schwartze is a former City employee. Prior to May 14, 2009, she worked as a
City police captain. On May 14, 2009, she was appointed temporary Emergency
Communications and Management Administrator ("ECM Administrator").3 At the
time of her appointment, she was approximately two years and nine months from
becoming eligible for retirement under the police pension plan. Schwartze would
have declined the ECM Administrator position if her acceptance would have affected
her police pension. To ensure that Schwartze's police-pension eligibility was
unaffected, she was paid for her work as ECM Administrator from the City Police
Department budget and remained a captain in the department. On October 5, 2009,


      1
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
      2
       The district court dismissed Schwartze's claims against Noce, and Matthes has
not appealed the district court's denial of qualified immunity.
      3
        Although the title of this position changed to "Director of Public Safety Joint
Communications and Emergency Management Director" in 2010, we will continue
to refer to the position as "ECM Administrator."

                                         -2-
Bill Watkins, then acting City Manager, offered Schwartze a permanent position as
ECM Administrator. The terms of this job offer were memorialized in a memorandum
("October 5, 2009 Memorandum"), which provided, in relevant part, as follows:

      I am pleased to offer you the position of ECMA for the City of
      Columbia. Should you agree to accept this offer the following are the
      terms and conditions of your appointment as Emergency
      Communications and Management Administrator.

      You will remain a Columbia Police Department captain assigned to the
      position of Emergency Communications and Management
      Administrator. Your assignment will end when you first become eligible
      to retire under the police pension plan. At that time you will have the
      option of either being reassigned in the Police Department or retiring
      under the police pension plan and continuing as the Emergency
      Communications and Management Administrator. If you continue as
      Administrator, you will be covered by the LAGERS retirement system.

      You must inform me of your decision to return to the Police Department
      or remain as Administrator at least six months before you first become
      eligible for retirement under the police pension plan.

      Of course, your assignment to the position of Administrator as well as
      your option to continue as Administrator is subject to satisfactory job
      performance.

      The following day, Watkins sent a letter to the ECM Administrator Selection
Committee—of which Chief Burton was a member—that contained the relevant terms
of Schwartze's assignment to ECM Administrator. In relevant part, the letter provided
that

      Captain Schwartze has a little over two years service remaining with the
      CPD until she is eligible to retire and has agreed to remain in this
      position until that time. Her assignment will end when she becomes


                                         -3-
      eligible to retire under the police pension plan. At that time, subject to
      her continued satisfactory performance, she will have the option of
      either being reassigned in the Police Department or retiring under the
      police pension plan and continuing as the Emergency Communications
      and Management Administrator covered by the LAGERS retirement
      system.

       Because her position as ECM Administrator was funded through a captain
position in the City Police Department, Schwartze was paid about $15,000 more than
the previous ECM Administrator. Section 21-19 of the Columbia City Ordinances
("City Ordinances") states that "[t]he chief of police shall have general supervision
and control of the department, including the enforcement of discipline among the
members thereof, and the instruction of the members in their duties." (Emphasis
added.) However, Schwartze performed no police duties and did not report to Chief
Burton after becoming ECM Administrator. She was paid from the City Police
Department budget. The police captain position was a "classified" position under the
City Ordinances.

      In May 2011, Matthes became the City Manager. At that time, the City was
operating at a nearly $3 million deficit. Matthes instituted a hiring freeze, and by
2012, the City had accumulated a $1.9 million surplus. During May and several times
thereafter, Schwartze indicated to Matthes her intention to retire from the City Police
Department in February 2012 and serve solely as the ECM Administrator.

      In late 2011 and early 2012, Eric Anderson, an independent consultant,
reviewed the administration of the City Police Department. As part of the review,
Anderson spoke with Schwartze who made statements critical of Chief Burton but
made no such comments of Matthes. Schwartze is unaware of anything that she said
to Anderson being relayed to Chief Burton or Matthes.




                                         -4-
       On January 18, 2012, after Schwartze's meeting with Anderson, Matthes told
Schwartze that he was considering eliminating the ECM Administrator position.
Schwartze asked Matthes whether she could return to the City Police Department as
a captain. Matthes indicated that he would think about it and get back to her.

       On February 2, 2012, Schwartze became eligible to draw police-pension
benefits. As provided in the October 5, 2009 Memorandum, Schwartze was to have
the option to remain as ECM Administrator or return to the City Police Department.
In February 2012, Matthes reiterated in a meeting with Schwartze that the City was
in the process of eliminating the ECM Administrator position. Matthes told
Schwartze that he had spoken with Chief Burton about the elimination of Schwartze's
position and her possible return to the City Police Department. Matthes told
Schwartze that returning to the City Police Department "was not an option" and "not
his decision to make." On February 6, 2012, Chief Burton e-mailed Matthes and
complained that Schwartze was "stonewalling."

       On May 9, 2012, Matthes gave Schwartze two options. First, she could
voluntarily resign and retire from her job as ECM Administrator and begin drawing
her police pension. Second, if she declined the first option, her position would be
eliminated. Matthes gave Schwartze less than one hour to decide. Schwartze
consulted with her attorney and decided not to resign. After being informed of
Schwartze's decision, Matthes gave Schwartze a letter stating that she was on
administrative leave, effective immediately. At approximately 5:00 p.m., Matthes sent
an e-mail to the mayor, City Council, and senior staff stating that Schwartze was on
paid administrative leave pending action on the next City Council meeting to amend
the budget. Chief Burton then sent an e-mail to the City Police Department stating
that Schwartze was no longer a City administrator and that her access to the building
was restricted to areas open to the general public unless she was accompanied by an
escort. After Deputy Police Chief Stephen Monticelli learned of Schwartze's removal,



                                         -5-
he e-mailed Chief Burton, stating, "Wow, there has to be a story there? She step in
it again?" Chief Burton responded, "[W]e will talk later."

       Section 19-238 of the City Ordinances provides that "grievances or complaints"
other than that regarding a poor job review "must be taken to the person who issued
the discipline. Unresolved grievances or complaints will proceed through the
department's chain of command as established by the department head." The
ordinance further provides that "[g]rievances or complaints must be taken to the
person who issued the discipline within seven (7) working days following knowledge
of the occurrence of the problem" and that "[t]he person who issued the discipline
shall have five (5) working days from receipt of the grievance or complaint to
respond in writing."

       On May 17, 2012, Schwartze's attorney filed a "Grievance/Complaint/Appeal."
Schwartze addressed the grievance to, among others, Chief Burton. In the grievance,
Schwartze's attorney wrote, "Since Mr. Matthes is the one who purportedly took the
action as to Zim, the Grievance/Complaint/Appeal is directed to him, at the first level,
as provided for by 'Step 1' of Section 19-238 of the City's Ordinances. However, since
Chief Burton was her immediate superior, such Grievance/Complaint/ Appeal is also
directed to him, as a part of Step 1." (Emphasis added.)

       On June 4, 2012, the City Council voted to eliminate the ECM Administrator
position. But, before that date, Matthes had indicated to Schwartze that even if the
City Council did not eliminate the position, he would not change his decision to
terminate Schwartze.

       On June 11, 2012, Matthes denied Schwartze's complaint. On June 14, 2012,
Schwartze requested a hearing before the Personnel Advisory Board ("Board"). The
City informed Schwartze that layoffs are not subject to hearings before the Board. At
no time did Chief Burton respond to the grievance and request for hearing.

                                          -6-
       City Ordinance § 19-211 states that laid off employees will be given "first
consideration" for the position that was eliminated or similar positions. Employees
entitled to first consideration appear on a reemployment list. Following Schwartze's
separation of employment from the City, Schwartze asked to be placed on the
reemployment list. Captain positions opened in August 2012 and September 2012,
but both positions were filed internally. In October 2012, Schwartze applied for the
deputy chief of police position and was considered but not selected.

       Relevant to the present appeal, Schwartze filed a procedural due process claim
under 42 U.S.C. § 1983 against Chief Burton, contending that he violated her
procedural due process rights when he terminated her from her job as ECM
Administrator and refused to let her return to a job at the City Police Department.
Chief Burton moved for summary judgment on the claim, asserting qualified
immunity. The district court denied Chief Burton qualified immunity. First, the court
found that Schwartze had a property interest in her employment under § 19-237 of the
City Ordinances, which sets forth a "just cause" requirement mandating that a
classified employee receive due process prior to termination. Chief Burton conceded
for purposes of summary judgment that Schwartze was a classified employee.
Therefore, the court found that she was entitled to due process prior to being
separated from her job for reasons other than a layoff.

       Second, the court found that a factual dispute existed as to whether Schwartze's
position was terminated because of (1) a lack of funds or curtailment of work or (2)
some other reason. Although the City repeatedly told Schwartze that she was being
laid off and her position as ECM Administrator was being eliminated, the City
conceded other facts that the district court found supported Schwartze's claim that her
layoff was a pretext for unlawful termination. As an example, the court cited Chief
Burton's belief "that Schwartze had made comments critical of him and how he ran
the Columbia Police Department and thought that she was a contributor to the toxic
supervisory culture."

                                         -7-
       Third, the court found that the predeprivation process afforded Schwartze was
insufficient if she was fired instead of laid off. Fourth, it concluded that assuming the
layoff was a pretext for Schwartze's termination, she was also denied sufficient
postdeprivation process.

       Finally, the court rejected Chief Burton's assertion that he was entitled to
qualified immunity on the procedural due process claim, stating:

             Burton contends that he is individually entitled to summary
      judgment on this claim because Schwartze has presented no evidence
      that he was involved in the decision to eliminate the ECM[]
      Administrator position, terminate Schwartze, or not allow her to return
      to the Police Department. However, Schwartze has presented facts to
      indicate that Burton had conversations with Matthes about the decision
      to terminate Schwartze. Moreover, Schwartze contends that Matthes
      informed her that he was not the one responsible for deciding whether
      Schwartze could be reemployed at the Police Department. It can be
      reasonably inferred from these facts that Burton, the Police Chief, was
      involved in making this decision. In addition, there are facts to support
      an inference that Burton had a negative relationship with Schwartze.
      Given the factual disputes regarding Burton's role in Schwartze's
      termination, he is not entitled to summary judgment on this claim.

                                     II. Discussion
        On appeal, Chief Burton argues that the district court erred in denying him
qualified immunity. He asserts that the district court's ruling erroneously equates
"having a role in the decision to lay-off Plaintiff Schwartze (pretexual or otherwise)
. . . with the City and City Manager's determination that Schwartze was not entitled
to pre or post deprivation due process." According to Chief Burton, such a holding
"imposes a duty and obligation on each and every state actor acting under color of
law to personally provide adequate due process by virtue of having any role in the
decision to separate a governmental employee's employment . . . ." Chief Burton


                                          -8-
contends that he "is entitled to qualified immunity because he played no role in the
decision not to provide Schwartze with due process and had no clearly established
duty to provide due process or intervene to ensure the City Manager and/or the City's
legal department provided due process."

       Schwartze has moved to dismiss the appeal for lack of jurisdiction on two
grounds. First, she argues that an interlocutory appeal after the denial of a
summary-judgment motion as to qualified immunity is only allowed where there are
issues of law and no disputed issues of fact. According to Schwartze, Chief Burton's
qualified-immunity appeal clearly argues disputed issues of fact. Second, Schwartze
contends that Chief Burton has raised for the first time on appeal the argument that
the decision to terminate Schwartze's employment was unrelated to the decision not
to provide Schwartze any procedural due process.

       A government official is shielded from liability by qualified immunity "unless
his conduct violates 'clearly established statutory or constitutional rights of which a
reasonable person would have known.'" Mallak v. City of Baxter, 823 F.3d 441, 445
(8th Cir. 2016) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Whether
a government official is entitled to qualified immunity should be resolved "at the
earliest possible stage in litigation." Id. (quoting Hunter v. Bryant, 502 U.S. 224, 227
(1991)). When the parties do not dispute the relevant facts, "a court should always be
able to determine as a matter of law whether or not an officer is eligible for qualified
immunity . . . ." Id. (alteration in original) (quoting Pace v. City of Des Moines, 201
F.3d 1050, 1056 (8th Cir. 2000)). "We review de novo a district court's denial of
summary judgment based on qualified immunity." Id. (quotation and citation
omitted).

       While "[a]n order denying qualified immunity can be immediately appealable
despite the fact that it is interlocutory," "our interlocutory jurisdiction is limited." Id.
at 445–46 (citing Cooper v. Martin, 634 F.3d 477, 479–80 (8th Cir. 2011); Johnson

                                            -9-
v. Jones, 515 U.S. 304, 319–20 (1995)). When a district court denies a defendant
summary judgment based on qualified immunity, that defendant "may appeal the
'purely legal issue' of 'whether the facts alleged . . . support a claim of violation of
clearly established law.'" Id. at 446 (alteration in original) (quoting Johnson, 515 U.S.
at 313). But a defendant is prohibited from appealing the district court's denial of
summary judgment based on qualified immunity when such denial is premised on a
determination that "the pretrial record sets forth a 'genuine' issue of fact for trial." Id.
(quoting Johnson, 515 U.S. at 319–20). In summary, "we may hear an appeal of an
order denying qualified immunity where the record plainly forecloses the district
court's finding of a material factual dispute." Id.

       "[K]ey factual questions in the present case are both material and disputed."
See id. Chief Burton does not challenge on appeal that he had a role as a
decisionmaker in terminating Schwartze or that Schwartze had a property interest in
her employment for which she was entitled to due process; instead, he argues that he
was not the decisionmaker responsible for providing her with due process. But the
extent of Chief Burton's role as a decisionmaker and his due-process obligations to
Schwartze are unresolved factual questions.

       Because genuine issues of material fact exist regarding Chief Burton's role in
the termination of Schwartze, we lack jurisdiction to review the denial of qualified
immunity.4



       4
        Even if material factual disputes do not preclude jurisdiction, we agree with
Schwartze that Chief Burton raised for the first time on appeal his argument that the
decision to terminate Schwartze's employment is separate and distinct from the
decision not to provide Schwartze any procedural due process. "Ordinarily, we do not
consider an argument raised for the first time on appeal." Orr v. Wal-Mart Stores,
Inc., 297 F.3d 720, 725 (8th Cir. 2002) (citations omitted).


                                           -10-
                          III. Conclusion
Accordingly, we dismiss the appeal for lack of jurisdiction.
               ______________________________




                                 -11-
