                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-1368
                                   ___________

Mark McGee,                              *
                                         *
       Plaintiff - Appellant,            *
                                         * Appeal from the United States
       v.                                * District Court for the
                                         * Eastern District of Missouri.
Public Water Supply, District #2 of      *
Jefferson County, Missouri, et al.,      *
                                         *
       Defendants - Appellees.           *
                                    ___________

                             Submitted: September 29, 2006
                                Filed: December 27, 2006
                                 ___________

Before LOKEN, Chief Judge, SMITH and GRUENDER, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

       The Board of Directors of the Jefferson County Public Water Supply District
#2 ("the District") hired Mark McGee as District Manager in January 2003. In the
ensuing months, McGee feuded with other District employees. One quit, saying
McGee was a “jerk.” He also urged the Board to replace Tom Dismuke, a highly
regarded civil engineer with a long-standing working relationship with the District.
In August 2004, the Board voted to eliminate the District Manager position, thereby
terminating McGee's employ. McGee filed this action under 42 U.S.C. § 1983 against
the Board and the four members who voted to eliminate his position, claiming that he
was discharged in retaliation for exercising his First Amendment right to speak out
regarding the District’s compliance with environmental regulations. He now appeals
the district court's1 grant of summary judgment in favor of all defendants. Reviewing
this decision de novo, and applying the Supreme Court's recent controlling decision
in Garcetti v. Ceballos, 125 S. Ct. 1951 (2006), we affirm. McGee's claim of
unconstitutional retaliation fails because "the First Amendment does not prohibit
managerial discipline based on [a public] employee's expressions made pursuant to
[his] official responsibilities." Id. at 1961.

                                          I.

       A public employer “may not discharge an employee on a basis that infringes
that employee’s constitutionally protected interest in freedom of speech.” Rankin v.
McPherson, 483 U.S. 378, 383 (1987) (citation omitted). McGee argues on appeal
that the First Amendment protected his statements to Board members regarding
controversies over the manner in which to complete two District projects:

       -- After contractors repaired a leaking septic tank at the District’s water
treatment plant that threatened to contaminate a nearby river, McGee met with
Dismuke and Board members Thomas Thornton and Richard Benner at the site on
August 16, 2004, to inspect the septic tank area. McGee asserted that raw sewage was
continuing to contaminate the area because the tank was not properly repaired.
Dismuke and Thornton disagreed. McGee threatened to bulldoze the area to prevent
sewage from spreading, saying that “as District Manager, I will not do anything
illegal, and that’s a sewer mess in the middle of the water treatment plant.” Thornton
angrily replied, “[y]ou’re building a dynasty, we’ll see about that,” and stormed away.
The next day, Thornton reported the encounter at a regular Board meeting. Two days


      1
       The HONORABLE MARY ANN L. MEDLER, United States Magistrate
Judge for the Eastern District of Missouri, who exercised jurisdiction over the case
with the consent of the parties. See 28 U.S.C. § 636(c).

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later, the Board eliminated McGee's position. The District tested the water near the
septic tank the following month and found no sewage present.

       -- When the District needed to relocate a water pipe containing asbestos, McGee
proposed that the pipe be replaced. The Board instead adopted Dismuke's less
expensive plan of cutting sections of the pipe and moving them to the new location.
The day before his position was eliminated, McGee expressed concern that the
contractor was not doing required water testing each time the pipe was cut. Dismuke
and water plant manager Brian Allen contacted the Missouri Department of Natural
Resources and were advised that the District must flush the cut pipe, but testing was
not required. The District later tested the water and found no asbestos.

      The district court ruled that McGee’s role in these controversies did not involve
protected speech because he “was not speaking as a concerned citizen but rather was
speaking and functioning as an employee who was performing his job.”

                                          II.

       To decide whether a public employee's speech is protected by the First
Amendment, a court must first determine "whether the employee spoke as a citizen
on a matter of public concern.” Garcetti, 126 S. Ct. at 1958 (citation omitted).2 This
is a question of law for the court. Connick v. Meyers, 461 U.S. 138, 148 n.7 (1983).
The Supreme Court’s decisions prior to Garcetti clarified this issue in many recurring
contexts. On the one hand, when a government employee speaks "as an employee
upon matters only of personal interest," such as many personnel matters, the First


      2
       If this question is answered in the affirmative, the court must then determine
"whether the relevant government entity had an adequate justification for treating the
employee differently from any other member of the general public." 126 S. Ct. at
1958, citing Pickering v. Board of Educ., 391 U.S. 563, 568 (1968). Here, we need
not reach this second issue.

                                         -3-
Amendment does not offer protection. Connick, 461 U.S. at 147. On the other hand,
when a government employee speaks "as a citizen" -- that is, outside the scope of
employment -- on "matters of public concern," the First Amendment offers protection
if the speech survives the Pickering balancing test briefly described in footnote 2.

        Many First Amendment retaliation claims have not fit neatly into either of these
categories. Garcetti was such a case, presenting the issue, as does this case, of
whether the First Amendment protects a government employee from retaliation when
he "speaks upon a matter of public concern and does so in the course of his ordinary
duties as a government employee." 126 S. Ct. at 1974 (Breyer, J., dissenting).
Environmental and public safety issues are obvious examples of matters that are of
concern to the general public. Our decisions prior to Garcetti were not altogether
consistent in resolving whether a retaliation claim involving employee speech that
falls into this third category requires Pickering balancing, which often precludes the
grant of summary judgment. Compare, e.g., Buazard v. Meridith, 172 F.3d 546, 548-
49 (8th Cir. 1999), and Bausworth v. Hazelwood School Dist., 986 F.2d 1197, 1199
(8th Cir. 1993), with Kincaid v. City of Blue Springs, Mo., 64 F.3d 389, 396-98 (8th
Cir. 1995), cert. denied, 517 U.S. 1166 (1996).

       In Garcetti, a deputy district attorney alleged that he was transferred and
demoted after writing a memorandum urging the dismissal of a prosecution because
of perceived misrepresentations in a search warrant affidavit. The Supreme Court
held, without challenging the Court of Appeals’ conclusion that the employee’s
memorandum addressed a matter of public concern, “that when public employees
make statements pursuant to their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.” 126 S. Ct. at 1960. The Court noted that
determining the scope of an employee’s official duties for these purposes is a practical
inquiry that focuses on “the duties an employee actually is expected to perform,”
rather than his formal job description. Id. at 1961-62. A public employee’s speech

                                          -4-
is not protected by the First Amendment if it “owes its existence” to his professional
responsibilities. Id. at 1960.

       McGee's brief on appeal stated that his duties as District Manager included
acting as liaison between District employees and the Board, supervising District
employees and equipment, and informing the Board of legal requirements and statutes.
He argues that Garcetti “does not impact” this appeal because he was removed from
the water pipe relocation project and was told not to concern himself with the septic
tank problem; therefore, his statements regarding environmental compliance were not
made pursuant to his official job duties. However, the projects clearly fell within both
McGee’s overall supervisory duties as District Manager and his admitted duty to
advise the Board regarding regulatory and legal requirements.

       When the Board chose civil engineer Dismuke’s proposals for repairing the
septic tank and relocating the water pipe, rejecting McGee’s more costly options,
McGee complained that the septic tank was not properly repaired, he threatened to
bulldoze over the site himself, and he insisted the water pipe relocation project
required additional asbestos testing. This was an exercise of McGee’s official duties.
It was also the assertion of more authority than the Board wanted its District Manager
to have. The Board’s rather predictable response was to eliminate the position. This
was an exercise of the Board’s managerial discretion that Garcetti expressly leaves to
public employers, not to federal courts applying the First Amendment. 126 S. Ct. at
1960-61.

      For these reasons, the district court correctly concluded that McGee’s First
Amendment retaliation claims are premised on statements that were not protected
speech. Accordingly, the judgment of the district court is affirmed.
                      ______________________________




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