                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-1566
                         ___________________________

                              Nadine A. Hemminghaus

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                      State of Missouri; Gary M. Gaertner, Jr.

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                     Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                            Submitted: January 14, 2014
                                Filed: July 1, 2014
                                 ____________

Before RILEY, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.
                             ____________

RILEY, Chief Judge.

       Nadine Hemminghaus worked as a court reporter for then Missouri circuit
judge Gary M. Gaertner Jr. from October 2006 until April 2009. Hemminghaus
complains Judge Gaertner fired her because she asked for leave from work to care for
her children, whom she suspected had been abused by their nanny, and because she
criticized the St. Louis Police Department and the county prosecutor for not pursuing
criminal charges against the nanny. Hemminghaus filed claims against the State of
Missouri (the State) for violating § 102(a) of the Family Medical Leave Act (FMLA),
29 U.S.C. § 2612(a), and against Judge Gaertner, pursuant to 42 U.S.C. § 1983, for
retaliating against her for exercising her First Amendment right to free speech. The
district court1 granted summary judgment in favor of Judge Gaertner and the State on
all claims. With appellate jurisdiction under 28 U.S.C. § 1291, we affirm.

I.   BACKGROUND
     A.     Facts2
     Judge Gaertner was appointed as a Missouri circuit judge by the governor of
Missouri in 2000, and successfully ran in retention elections in 2002 and 2008. In
December 2009, Judge Gaertner was appointed to the Missouri Court of Appeals.

       Before working for Judge Gaertner, Hemminghaus held two other court
reporter positions for the State from May 1997 until October 2006. Judge Gaertner
appointed Hemminghaus as his court reporter in October 2006, and she held that
position until Judge Gaertner fired her on April 28, 2009. By statute, Hemminghaus
was Judge Gaertner’s “official court reporter” and held her “office during the pleasure
of” Judge Gaertner. Mo. Rev. Stat. § 485.040.



      1
        The Honorable Catherine D. Perry, Chief Judge, United States District Court
for the Eastern District of Missouri.
      2
       We view the summary judgment facts in the light most favorable to
Hemminghaus, the nonmoving party. See Rynders v. Williams, 650 F.3d 1188, 1194
(8th Cir. 2011) (FMLA); Bailey v. Dep’t of Elementary & Secondary Educ., 451 F.3d
514, 518 (8th Cir. 2006) (retaliation).




                                         -2-
       In September 2008, approximately seven months before Hemminghaus was
fired, she discovered her nanny had abused her two preschool-aged children. On
many occasions thereafter, Hemminghaus asked Judge Gaertner for leave time to care
for her children, who were having “emotional issues from the abuse.” Judge Gaertner
did not always allow Hemminghaus the requested leave time, and, when allowed,
Hemminghaus had to find a substitute court reporter.

       Hemminghaus sought criminal charges against the nanny, but the St. Louis
county prosecutor declined to press charges. Hemminghaus considered speaking to
the media about the case, but Judge Gaertner discouraged her from doing so by telling
Hemminghaus she would be fired if she talked to the press. Hemminghaus did
anonymously post “blog” messages on the Internet about her children’s case and the
issue of child abuse.

       As Hemminghaus’s children’s behavioral problems escalated, she felt she
needed more leave time to care for them, particularly in the mornings. Hemminghaus
also felt she needed leave time to take the children to see their doctors and counselors
for treatment and testing. According to Hemminghaus, Judge Gaertner sometimes did
not answer Hemminghaus’s requests for leave, causing her to miss doctor
appointments.

      Before her termination, Hemminghaus’s relationship with Judge Gaertner
became strained. On the day before her termination, April 27, 2009, Judge Gaertner
denied leave to Hemminghaus to care for her children. As reported by Hemminghaus,
during a conversation in chambers, Judge Gaertner told Hemminghaus not to mention
the case against the nanny to anyone at the courthouse. Later that day, Judge
Gaertner told Hemminghaus no one would take her case because no one would
believe her children. Hemminghaus told Judge Gaertner, “[P]lease don’t do anything
to harm me or my case, and I won’t have to tell people what you’re doing to me by
denying my rights.” Hemminghaus wondered aloud if the investigative television

                                          -3-
show Dateline would report on her case. Hemminghaus claims Judge Gaertner
reacted by jumping up, running from behind his desk, and screaming, “Get out of here
now and never come back in here again!” Hemminghaus told Judge Gaertner, “If
you’re going to fire me, just do it because I can’t take this anymore.”

       The next day, Judge Gaertner called a meeting with Hemminghaus and Gail
Crane, the Chief Probate Clerk. Suspecting she would be fired, Hemminghaus called
her attorney and brought her cell phone with her attorney on the line into chambers.
Because the attorney was on the phone, Judge Gaertner ended the meeting. He sent
Hemminghaus a termination letter later that day.

       B.      Procedural History
       Hemminghaus filed a complaint in the district court alleging Judge Gaertner
fired her for two reasons: first, because she asked for leave from work to care for her
children, and second, because she criticized both the St. Louis county prosecutor for
not pursuing criminal charges against the nanny and the police department for its
handling of the case. Hemminghaus appeals the district court’s grant of summary
judgment to defendants on her claims for violation of the FMLA, alleged against the
State, and of retaliation in violation of her First Amendment right to free speech,
alleged against Judge Gaertner.

II.    DISCUSSION
       A.     Standard of Review
       A district court “shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “We review a grant of summary judgment
de novo.” Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005).




                                         -4-
       B.     FMLA Claim
       Hemminghaus contends Judge Gaertner violated the FMLA both by denying
her leave to care for her children and terminating her for requesting such leave. The
State argues Hemminghaus is not an eligible employee under the FMLA because she
is excluded as a personal staff member of a public elective office holder. The FMLA
excludes from its protection those employees who are “selected by the holder” of a
“public elective office of that State” “to be a member of his personal staff.” 29
U.S.C. § 203(e)(1), (2)(C)(ii)(I), (II); see 29 U.S.C. § 2611(3).

             1.     Public Elective Office Holder
      Certain state judges in Missouri, including Judge Gaertner, are selected
according to the “Missouri Plan”—the governor first appoints them and they later can
declare candidacy for a retention election without any opposing candidate. See Mo.
Const. art. V, § 25(a), (c)(1). The first question here is whether such Missouri Plan
judges “hold[] a public elective office.” 29 U.S.C. § 203(e).

      Our court has not directly answered this question. In 1984, we noted, but did
not address, the issue in the context of Title VII of the Civil Rights Act of 1964:
“Our holding that [an employee] was not an ‘immediate adviser’ makes it unnecessary
to decide the further question whether Missouri Circuit Judges . . . are ‘elected to
public office’ within the meaning of [42 U.S.C.] § 2000e(f).” Goodwin v. Cir. Ct. of
St. Louis Cnty., Mo., 729 F.2d 541, 549 n.10 (8th Cir. 1984).3

      3
          Title VII excludes from the definition of “employee”

      any person elected to public office in any State . . . by the qualified
      voters thereof, or any person chosen by such officer to be on such
      officer’s personal staff, or an appointee on the policy making level or an
      immediate adviser with respect to the exercise of the constitutional or
      legal powers of the office.

42 U.S.C. § 2000e(f).

                                          -5-
       In 1990, we discussed this issue in the context of an Age Discrimination in
Employment Act (ADEA) claim. See Gregory v. Ashcroft, 898 F.2d 598, 600 (8th
Cir. 1990), aff’d, 501 U.S. 452 (1991). The ADEA definition of “employee” excludes
“any person elected to public office in any State . . . by the qualified voters thereof,
or any person chosen by such officer to be on such officer’s personal staff, or an
appointee on the policymaking level or an immediate adviser with respect to the
exercise of the constitutional or legal powers of the office.” 29 U.S.C. § 630(f). In
determining whether Missouri state judges fell into this category, we reasoned,

      As a preliminary matter, we note that the District Court found [the
      Missouri state judges], initially appointed by the Governor and retained
      in office by a majority of the voters as required by the Missouri Plan, to
      be outside the ADEA’s exception for persons “elected to public office”.
      Although we are inclined to disagree with this aspect of the District
      Court’s decision, the Governor did not cross-appeal this issue, it was not
      briefed by either side, and it is not properly before us. We therefore
      express no opinion on this point, and shall assume for the balance of this
      opinion that state judges selected according to the Missouri Plan are
      appointed and not “elected” within the meaning of the ADEA.

Gregory, 898 F.2d at 600 (footnote omitted). We held that “judges appointed under
the Missouri Plan are excluded from the coverage of the ADEA because they are
‘appointee[s] on the policymaking level’ within the meaning of 29 U.S.C. § 630(f).”
Id. at 604. The United States Supreme Court, too, did not reach the issue: “Because
we conclude that [the judges] fall presumptively under the policymaking-level
exception, we need not answer this question.” Gregory, 501 U.S. at 467.4

      4
        Although the Gregory inclination to disagree with the idea that Missouri state
judges are not “elected to public office” is not binding on our panel, Gregory does
have some persuasive value. See Gregory, 898 F.2d at 600. The ADEA exclusion
language at issue there would have been even more difficult for a Missouri Plan judge
to satisfy than the language at issue here, because it excluded “any person elected to

                                          -6-
       Nevertheless, we now decide the district court was correct in concluding Judge
Gaertner was a public elective office holder. The FMLA language at issue excludes
an employee who is a “holder” of a “public elective office.” 29 U.S.C. § 203(e)(1),
(2)(C)(ii)(I), (II) (emphasis added). Judge Gaertner had, in fact, been retained once
in an election before hiring Hemminghaus as his official court reporter and twice
before terminating Hemminghaus. The plain language of the statute makes no
distinction between elective offices where another candidate’s name appears on the
ballot and offices where the holder is simply given an up or down retention vote. In
either event, whether a “yes” or “no” retention of a sitting judge or a heated contest
between multiple candidates, the process results in an “election,” that is, a “choice,”
by the voting public.5 “Retention elections are opportunities for the electorate to
choose to retain a person as a judge. While a retention election does not place one
person in electoral conflict with another, as in partisan elections, it is nonetheless an
election. One serves at the will of the people in either event.” African-Am. Voting
Rights Legal Def. Fund, Inc. v. Missouri, 994 F. Supp. 1105, 1122 (E.D. Mo. 1997),
aff’d per curiam, 133 F.3d 921 (8th Cir. 1998) (unpublished table decision). As the
district court here aptly explained, “[v]ulnerability to ouster by the public is the very
essence of an elective office.” We agree with the district court that Judge Gaertner
was a public elective office holder in the context of 29 U.S.C. § 203(e).

             2.    Personal Staff Member
       The next question is whether Hemminghaus was “selected by” Judge Gaertner
“to be a member of his personal staff.” 29 U.S.C. § 203(e)(1), (2)(C)(ii)(II). If so,
she is not an “employee” under the FMLA. See id. We have not previously


public office in any State . . . by the qualified voters thereof,” 29 U.S.C. § 630(f)
(emphasis added), which arguably would not apply to a judge appointed by the
governor who has yet to stand for election.
      5
      Webster defines the verb “to elect” as “to make a selection of: choose.”
Webster’s Third New International Dictionary 731 (1993).

                                          -7-
construed the meaning of “personal staff” in the FMLA context. Because the
“employee” definition is taken from the Fair Labor Standards Act (FLSA), the district
court and the parties cite cases construing the definition of “personal staff” in the
context of the FLSA, as well as Title VII.6 In particular, the Fifth Circuit
consolidated many circuits’ cases (including Goodwin) to develop a set of non-
exhaustive factors to aid in determining whether an employee is a member of the
“personal staff.”

      These factors include: (1) whether the elected official has plenary
      powers of appointment and removal, (2) whether the person in the
      position at issue is personally accountable to only that elected official,
      (3) whether the person in the position at issue represents the elected
      official in the eyes of the public, (4) whether the elected official
      exercises a considerable amount of control over the position, (5) the
      level of the position within the organization’s chain of command, and
      (6) the actual intimacy of the working relationship between the elected
      official and the person filling the position.

Teneyuca v. Bexar Cnty., 767 F.2d 148, 150-52 (5th Cir. 1985) (finding an assistant
district attorney was a member of the “personal staff” of the elected district attorney).


      6
        Judge Easterbrook of the Seventh Circuit described the interplay among many
statutes interpreting the term “employee”:

      The ADEA was interpolated into the [FLSA], and its definition of
      employee tracks the FLSA’s. 29 U.S.C. § 203(e). It turns out to be a
      definition in wide use. Language essentially identical to the first clause
      of § 630(f) appears in [six other statutes, including the FMLA, 29 U.S.C.
      § 2611(3) (incorporating § 203(e)), and Title VII, 42 U.S.C. § 2000e(f)].
      This means . . . that a definition may be secured from opinions that have
      addressed these other statutes.

E.E.O.C. v. Sidley Austin Brown & Wood, 315 F.3d 696, 708 (7th Cir. 2002)
(Easterbrook, J., concurring).

                                          -8-
See also Rutland v. Pepper, 404 F.3d 921, 922-24 (5th Cir. 2005) (per curiam)
(applying the Teneyuca factors in the FMLA context and finding a deputy clerk was
a member of the “personal staff” of the elected chancery clerk). We apply the
Teneyuca factors to assist us here.

      First, Judge Gaertner had plenary power to hire and fire Hemminghaus, as
provided by Missouri statute: “each circuit judge shall appoint an official court
reporter . . . . Such court reporter shall be a sworn officer of the court, and shall hold
[her] office during the pleasure of the judge appointing [her].” Mo. Rev. Stat.
§ 485.040.

      Second, “[t]he fact that state law permits” Judge Gaertner “to have this power
shows that the state intends for the [court reporter] to be personally accountable to
only one public official.” Owens v. Rush, 654 F.2d 1370, 1376 (10th Cir. 1981). The
fact Hemminghaus would transcribe testimony for requesting attorneys or would
occasionally fill in for other court reporters does not materially alter this conclusion.

        Third, while Hemminghaus did not answer the phones or speak for Judge
Gaertner in his absence, she appeared publicly as part of his staff in an integral aspect
of his judicial appointment: presiding in the courtroom. She was a “sworn officer of
the court,” Mo. Rev. Stat. § 485.040, whose duties, assigned by statute, were: “to
attend the sessions of the court, under the direction of the judge thereof; [and] to take
full stenographic notes . . . in every cause tried in said court.” Mo. Rev. Stat.
§ 485.050. Sometimes, at trial, Judge Gaertner would introduce Hemminghaus by
name to the public. Hemminghaus acknowledged that just as “it’s important that
people be able to trust the legal system and the judge to be impartial, . . . similarly,
it’s important for people to be able to trust the court reporter . . . [and] to believe that
the court reporters are also impartial.” Hemminghaus’s own testimony demonstrates
the court reporter has an important role in the eye of the public at court hearings and
at trial, representing the judge and the legal system as a whole.

                                            -9-
       Fourth, Judge Gaertner exercised “a considerable amount of control” over the
official court reporter position. As noted, he had complete authority to hire and fire
his official court reporter. See Mo. Rev. Stat. § 485.040. Judge Gaertner also
determined Hemminghaus’s working hours. As Hemminghaus stated, “[Judge
Gaertner] is my boss. He is the only one who could authorize my leave.”
Hemminghaus’s work schedule depended upon when Judge Gaertner had events
scheduled in court—for example, because he usually did not have events scheduled
on Wednesdays, Hemminghaus frequently did not go to the courthouse on
Wednesdays. On other days, Judge Gaertner sometimes allowed Hemminghaus to
work from home and commonly allowed her to leave work before 5:00 p.m.
Hemminghaus emphasizes the fact that she was an employee of the state, and Judge
Gaertner did not set or pay her salary. Hemminghaus’s argument in this regard
“would effectively eradicate this entire category of exemption, since few elected
officials’ personal staff members are wholly administered and paid for personally.”
Bland v. New York, 263 F. Supp. 2d 526, 544 (E.D.N.Y. 2003).

        Fifth, Hemminghaus reported directly to Judge Gaertner, without any
intermediate supervisor in the chain of command. “[W]hen applying the fifth factor,”
we agree with the Fifth Circuit that the “personal staff exception . . . was primarily
intended to exempt the elected official’s immediate subordinates or those who are his
first line advisors.” Rutland, 404 F.3d at 924 n.3 (second alteration in original)
(emphasis added) (quoting Montgomery v. Brookshire, 34 F.3d 291, 296 (5th Cir.
1994)).

       The sixth factor, “the actual intimacy of the working relationship between the
elected official and the person filling the position,” Teneyuca, 767 F.2d at 151, is
more difficult to evaluate. Presumably, during the time Hemminghaus was court
reporting, she spent the day in close proximity with Judge Gaertner. But without
testimony from Hemminghaus at the summary judgment stage recognizing such
intimacy, it cannot be presumed here. Regardless, the majority of the Teneyuca

                                        -10-
factors, and common sense, favor the conclusion that Hemminghaus was a member
of Judge Gaertner’s “personal staff.”

        To bolster her position to the contrary, Hemminghaus cites a U.S. Department
of Labor (DOL) opinion stating official court reporters appointed by a judge do not
fall into the personal staff exception. The DOL concluded:

      [C]ourt reporters do not fall under the personal staff exemption because
      they do not have the highly intimate and sensitive position of
      responsibility necessary to qualify for this exemption. They do not
      render advice or counsel to the judges or have any intimate or sensitive
      status vis a vis the judges. We also do not believe they represent the
      judges in the eyes of the public or are first line advisors. Thus, because
      court reporters do not have responsibilities of this nature, the personal
      staff exemption does not apply.

The district court rejected the DOL opinion, stating,“Th[e] author[] did not consider
the facts of this case . . . . In light of my own interpretation of the case law, I do not
find [the DOL reasoning] particularly helpful.” We agree.

       “Interpretations such as those in opinion letters—like interpretations contained
in policy statements, agency manuals, and enforcement guidelines, all of which lack
the force of law—do not warrant Chevron7-style deference.” Christensen v. Harris
Cnty., 529 U.S. 576, 587 (2000). “Instead, interpretations contained in formats such
as opinion letters are ‘entitled to respect’ . . . but only to the extent that those
interpretations have the ‘power to persuade.’” Id. (quoting Skidmore v. Swift & Co.,
323 U.S. 134, 140 (1944)) (finding the DOL’s “interpretation of the statute at issue
in this case” “unpersuasive”).




      7
          Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

                                           -11-
       The DOL opinion lacks persuasive force in light of the undisputed facts of this
case. “Our inquiry into the nature and circumstances of the employment relationship
between” Hemminghaus and Judge Gaertner “for the purpose of determining
whether” Hemminghaus “is exempt from the protection of the” FMLA “is highly
factual. It would not lend itself well to disposition by summary judgment were it not
that most of the necessary facts are provided by statute or by” Hemminghaus’s
“testimony and summary judgment evidence.” Gunaca v. Texas, 65 F.3d 467, 473
(5th Cir. 1995).

      Viewing the facts as a whole, in the light most favorable to Hemminghaus, we
conclude Hemminghaus was a member of the “personal staff” of Judge Gaertner, who
held a “public elective office.” 29 U.S.C. § 203(e)(2)(C)(ii)(I), (II). Therefore,
Hemminghaus was not an eligible “employee” covered by the FMLA.8

       C.    First Amendment Retaliation Claim
       Hemminghaus claims Judge Gaertner terminated her in retaliation for her
speech, in violation of the protections afforded her by the First Amendment.9 The
district court determined Judge Gaertner was entitled to qualified immunity on
Hemminghaus’s First Amendment retaliation claim.

       “In resolving questions of qualified immunity at summary judgment, courts
engage in a two-pronged inquiry. The first asks whether the facts, ‘[t]aken in the light
most favorable to the party asserting the injury, . . . show the officer’s conduct
violated a [federal] right.’” Tolan v. Cotton, 572 U.S. ___, ___, 134 S. Ct. 1861,


      8
       Because we find Hemminghaus is not an eligible employee under the FMLA,
we do not reach the State’s alternate argument that the “leeway” leave Hemminghaus
requested is not covered by the FMLA.
      9
      Judge Gaertner does not dispute the contention that Hemminghaus’s speech
was a motivating factor in her termination.

                                         -12-
1865 (2014) (per curiam) (alterations in original) (quoting Saucier v. Katz, 533 U.S.
194, 201 (2001)). “The second prong of the qualified-immunity analysis asks
whether the right in question was ‘clearly established’ at the time of the violation.”
Tolan, 572 U.S. at ___, 134 S. Ct. at 1866 (quoting Hope v. Pelzer, 536 U.S. 730, 739
(2002)). “The judges of the district courts and the courts of appeals should be
permitted to exercise their sound discretion in deciding which of the two prongs of
the qualified immunity analysis should be addressed first in light of the circumstances
in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

       As to the first prong, violation of a constitutional right, “the First Amendment
protects a public employee’s right, in certain circumstances, to speak as a citizen
addressing matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417
(2006). Pickering v. Board of Education, 391 U.S. 563 (1968), “and the cases
decided in its wake identify . . . inquiries to guide interpretation of the constitutional
protections accorded to public employee speech. The first requires determining
whether the employee spoke as a citizen on a matter of public concern.” Garcetti, 547
U.S. at 418 (alteration in original). “If the answer is no, the employee has no First
Amendment cause of action based on his or her employer’s reaction to the speech.”
Id. “If the answer is yes, then the possibility of a First Amendment claim arises.” Id.



       Next, if the possibility of a First Amendment claim has arisen, “we must ask
whether [the employer] has produced evidence to indicate the speech had an adverse
impact on the efficiency of the [employer’s] operations.” Lindsey v. City of Orrick,
Mo., 491 F.3d 892, 900 (8th Cir. 2007). “Where there is no evidence of disruption,
resort to the Pickering factors is unnecessary because there are no government
interests in efficiency to weigh against First Amendment interests.” Belk v. City of
Eldon, 228 F.3d 872, 881 (8th Cir. 2000).




                                          -13-
       Finally, if such an adverse impact is found, the court engages in the Pickering
balancing inquiry: “The question becomes whether the relevant government entity
had an adequate justification for treating the employee differently from any other
member of the general public.” Garcetti, 547 U.S. at 418. “The problem in any case
is to arrive at a balance between the interests 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, 391 U.S. at 568. These questions “are matters of law for the
court to resolve.” Kincade v. City of Blue Springs, Mo., 64 F.3d 389, 395 (8th Cir.
1995).

              1.    Matter of Public Concern
       “Whether an employee’s speech addresses a matter of public concern must be
determined by the content, form, and context of a given statement, as revealed by the
whole record.” Connick v. Myers, 461 U.S. 138, 147-48 (1983) (footnote omitted).
“Speech that involves a matter of political, social or other concern to the community
is of public concern.” Calvit v. Minneapolis Pub. Sch., 122 F.3d 1112, 1117 (8th Cir.
1997). “The form and context are examined to determine whether the public
employee speaks as a concerned citizen informing the public that the government is
not properly discharging its duties, or merely as an employee speaking about internal
practices relevant only to fellow employees.” Id.

       In this case, Hemminghaus posted blog entries on the Internet about her case
against her nanny. Most of the blog entries detail the particular personal issues facing
Hemminghaus in her quest to see the nanny prosecuted. At least some of the blog
posts express concern for the public at large and not just Hemminghaus’s children,
including the following: “I would call every daycare in the state if I thought I could
do that legally.” “We decided to do what we thought was the ‘RIGHT THING’ and
try and protect others.” “Please pay attention to who is up for re-election and do



                                         -14-
research on them before you vote. . . . You[r] children have a voice in you when it
comes to voting.”

       Hemminghaus told Judge Gaertner she wanted to speak publicly to expose the
prosecutor’s decision not to bring charges against her nanny. Hemminghaus wanted
others to know of the danger the nanny ostensibly posed. Judge Gaertner apparently
told Hemminghaus if she proceeded she would be fired. On April 27, 2009,
Hemminghaus wondered aloud to Judge Gaertner if Dateline would be interested in
her case against the nanny. Judge Gaertner allegedly responded by screaming at
Hemminghaus to get out.

       “[T]he proper approach to the problem of child abuse [is a] subject[] in which
citizens have a demonstrated interest.” Calvit, 122 F.3d at 1117. Although
Hemminghaus’s blog posts and other speech discussed her own case in detail, the
district court correctly concluded Hemminghaus’s “speech related to a matter of
public concern,” at least in part.

              2.     Adverse Effect on Courtroom Operations
       Judge Gaertner “bears the burden under the Pickering balancing test of
establishing permissible grounds” for Hemminghaus’s discharge. Kincade, 64 F.3d
at 397. But “we do not see the necessity for an employer to allow events to unfold
to the extent that the disruption of the office and the destruction of working
relationships is manifest before taking action.” Connick, 461 U.S. at 152 (footnote
omitted). “[W]e have consistently given greater deference to government predictions
of harm used to justify restriction of employee speech than to predictions of harm
used to justify restrictions on the speech of the public at large.” Waters v. Churchill,
511 U.S. 661, 673 (1994) (plurality opinion). “[W]e have given substantial weight
to government employers’ reasonable predictions of disruption, even when the speech
involved is on a matter of public concern.” Id. “[I]n determining whether particular
speech caused disruption in the workplace and therefore is not protected, we have

                                         -15-
held ‘[e]vidence of actual disruption . . . is not required in all cases.’” Bailey, 451
F.3d at 521 (last two alterations in original) (quoting Shands v. City of Kennett, 993
F.2d 1337, 1344 (8th Cir. 1993)).10

       “Pertinent considerations in the application of the Pickering test are whether
the employee’s speech has a detrimental impact on working relationships where
personal loyalty or confidence is necessary, and whether the speech impedes the
efficient operation of the governmental entity’s function.” Barnard v. Jackson Cnty.,
Mo., 43 F.3d 1218, 1224 (8th Cir. 1995). A judge has a particular responsibility to
promote confidence in the judiciary. See Mo. Sup. Ct. R. 2-1.2 (“A judge shall act
at all times in a manner that promotes public confidence in the independence,
integrity, and impartiality of the judiciary, and shall avoid impropriety and the
appearance of impropriety.”). “Employee acts of insubordination may tip the
balancing process in favor of the employer’s interests in the efficient promotion of
its services.” Barnard, 43 F.3d at 1224.

       “Although such evidence is not required, sufficient evidence of disruption
exists in this case.” Bailey, 451 F.3d at 521 (finding “sufficient evidence of potential


      10
         But see Lindsey, 491 F.3d at 900 (“[A] public employer must, with
specificity, demonstrate the speech at issue created workplace disharmony, impeded
the plaintiff’s performance or impaired working relationships. Mere allegations the
speech disrupted the workplace or affected morale, without evidentiary support, are
insufficient.” (internal citation omitted)); Belk, 228 F.3d at 882 (“Although we have
held that public employers are not required to anticipate the outcome of the delicate
Pickering balancing, that reasoning applies only to cases where the employer has
made some showing of impediment to its efficient functioning. Where . . . the
employer has failed to demonstrate any disruption, there is no balancing to be done
and the evidentiary failure is fatal to the claim of qualified immunity.” (internal
citation omitted)). Supreme Court precedent, Waters, 511 U.S. at 673; Connick, 461
U.S. at 152, and our earlier precedent in Shands, 993 F.2d at 1344, place these cases
in question.

                                         -16-
workplace disruption” (emphasis added)). Here, the county prosecutor was a frequent
party in Judge Gaertner’s courtroom. Hemminghaus’s repeated threats to speak with
the media about the county prosecutor’s alleged misdeeds (including on the day
before her termination) could implicate “a judge’s interest in avoiding the appearance
of impropriety.” McDaniel v. Woodard, 886 F.2d 311, 315 (11th Cir. 1989). While
her blog posts were anonymous, Hemminghaus described her deteriorating
relationship with the prosecutor’s office: “Let’s just tally all they’ve done to our
family now: . . . Alienated the whole prosecuting attorney’s office against me.
Alienated the whole courthouse against me.”

       Finally, Hemminghaus’s own interactions with the police department, as
reported to Judge Gaertner by an assistant county prosecuting attorney, could create
an appearance of impropriety—the county attorney reported that Hemminghaus went
to the police department making demands and had to be escorted from the police
department. The police department also chastised Hemminghaus for making
harassing telephone calls to the nanny, who filed for a protection order against
Hemminghaus. Hemminghaus does not deny these events occurred, stating, for
example, that “the police had [] gotten [her] to agree not to call the nanny again,” but
emphasizes that these events occurred outside the workplace. Hemminghaus ignores
the potential for an appearance of impropriety to arise when a “sworn officer of the
court,” Mo. Rev. Stat. § 485.040, engages in such conduct.

       Hemminghaus’s blog posts also describe workplace disruption. (“The job is
practically emeshed [sic] in my personal life now as once I stated I’d go to the press
unless I saw some action from someone to do something about her, they started to
retaliate”; “I’m screwed as far as work. As for the job, I would leave it in a minute
if I could”). By her own admission, the relationship between Hemminghaus and
Judge Gaertner was strained. Hemminghaus reported she called a co-worker “to tell
[the co-worker] it was just out of control with the judge.” Hemminghaus also admits
a co-worker disclosed that Hemminghaus made threatening comments about Judge

                                         -17-
Gaertner. Hemminghaus merely emphasizes the comments were not physically
threatening.

       Several of Hemminghaus’s remarks or actions were clearly insubordinate:
“[P]lease don’t do anything to harm me or my case, and I won’t have to tell people
what you’re doing to me by denying my rights”; “If you’re going to fire me, just do
it because I can’t take this anymore.” Perhaps most serious, Hemminghaus brought
a cell phone with her attorney on the line into chambers for a meeting with Judge
Gaertner.

      As in Bailey, where this court found adequate disruption when the employee
and supervisor had an exchange that “became quite heated, with [the supervisor]
eventually giving [the employee] an ultimatum to behave or be fired” and where the
employee’s speech “eventually led to another confrontation with [the supervisor] at
a conference,” Hemminghaus’s actions are “sufficient evidence of disruption.”
Bailey, 451 F.3d at 521.11

             3.    Pickering and Clearly Established Law
             Under the Pickering test, a number of interrelated factors are
      taken into account in balancing the competing interests of government-
      employer and citizen-employee. These factors include: (1) the need for
      harmony in the office or work place; (2) whether the government’s
      responsibilities require a close working relationship to exist between the
      plaintiff and co-workers when the speech in question has caused or
      would cause the relationship to deteriorate; (3) the time, manner, and


      11
         We also note the record indicates the majority of Hemminghaus’s blog posts
related to her personal dispute with the nanny and did not focus on child abuse as a
public problem, lessening the burden on defendants. See Connick, 461 U.S. at 152
(“We caution that a stronger showing may be necessary if the employee’s speech
more substantially involved matters of public concern.”); Sexton v. Martin, 210 F.3d
905, 912 (8th Cir. 2000).

                                        -18-
      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.

Belk, 228 F.3d at 880-81. “At least five circuits have concluded that, because
Pickering’s constitutional rule turns upon a fact-intensive balancing test, it can rarely
be considered ‘clearly established’ for purposes of . . . qualified immunity.” Bartlett
v. Fisher, 972 F.2d 911, 916 (8th Cir. 1992).12

     The facts provided by Hemminghaus’s record establish an admitted lack of
harmony in chambers and a deterioration in the relationship between Judge Gaertner
and Hemminghaus. The district court determined,

      [R]egardless of whether all of Hemminghaus’ abundant speech was
      protected under Pickering, her right to engage in such speech was not
      clearly established at the time she was fired. Given her position as court
      reporter and the weight of [Judge] Gaertner’s interest in impartiality and
      public confidence in the courts, it was reasonable for [Judge] Gaertner
      to be concerned about the potential conflict of interest that
      Hemminghaus’ criticisms of the prosecutor may have created.

Hemminghaus argues the district court erred by emphasizing potential conflicts when
“there is no evidence in this case that Hemminghaus compromised that integrity and
impartiality by criticizing the prosecutor’s office.” Hemminghaus does not cite


      12
         This is not to say Pickering balancing never allows for clearly established law
in the qualified immunity analysis. See, e.g., Sexton, 210 F.3d at 914 (“[W]here the
employees have spoken out on a matter of great public concern, and the evidence that
the speech caused disruption in the workplace is minimal at best, the imprecision of
the Pickering balance makes little difference in our determination. We conclude that
at the time of the plaintiffs’ termination, the law was clearly established that the
balance would have weighed heavily in favor of the plaintiffs’ exercise of free
speech.”).

                                          -19-
clearly established law putting Judge Gaertner on notice that Pickering balancing in
a situation such as this would fall in Hemminghaus’s favor, nor have we identified
any such case law. Because Hemminghaus spoke mostly about her own private case,
and disruption in the workplace was substantial and not “minimal at best,” Sexton,
210 F.3d at 914, it was not “clearly established” that Pickering balancing would fall
in Hemminghaus’s favor. Judge Gaertner did not have notice that his termination of
an insubordinate employee who compromised the propriety and efficiency of his
courtroom could violate her right to free speech. The district court correctly
determined Judge Gaertner was entitled to qualified immunity on Hemminghaus’s
§ 1983 claim.

III.  CONCLUSION
      We affirm the judgment of the district court for the reasons stated in its well-
reasoned opinion, as amplified here.
                      ______________________________




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