“The inquiry into the protected status of speech is one of law, not fact.”
How later courts described this case
- “The inquiry into the protected status of speech is one of law, not fact.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
DAMON REED PLAINTIFF
v. Case No.: 4:20-cv-01111-LPR
CITY OF CONWAY, ARKANSAS, et al. DEFENDANTS
ORDER
Plaintiff Damon Reed is a Captain at the Conway Fire Department. After being passed
over for a promotion, Mr. Reed sued Defendant Michael Winter and the City of Conway under 42
U.S.C. § 1983, alleging First Amendment retaliation.1 Mr. Reed also sued Defendants under
Arkansas law, alleging discrimination under the 34th Amendment to the Arkansas Constitution
and a violation of Arkansas Code Annotated section 11-3-303.2
Defendants have filed a Motion for Summary Judgment.3 For the reasons that follow, the
Court GRANTS summary judgment to Defendants on all of Mr. Reed’s federal claims. The Court
declines to exercise supplemental jurisdiction over Mr. Reed’s state law claims. The state law
claims will be DISMISSED without prejudice.
1 Compl. (Doc. 1) ¶¶ 1, 27–35. In his Complaint, Mr. Reed also sued Bart Castleberry in his individual capacity.
Id. at 1. Mr. Reed has stipulated to the dismissal of Mr. Castleberry in his individual capacity. Pl.’s Resp. to Defs.’
Mot. for Summ. J. (Doc. 18) at 2 n.1. Mr. Reed also sued Mr. Winter and Mr. Castleberry in their official capacities.
Compl. (Doc. 1) at 1. However, in the Eighth Circuit, “[c]laims against individuals in their official capacities are
equivalent to claims against the entity for which they work . . . .” Gorman v. Bartch, 152 F.3d. 907, 914 (8th Cir.
1998). Thus, the official capacity claims against Mr. Winter and Mr. Castleberry are really just claims against the
City of Conway.
2 Compl. ¶¶ 36–46.
3 Defs.’ Mot. for Summ. J. (Doc. 15).
BACKGROUND4
In 1994, Mr. Reed was hired by the Conway Fire Department as a probationary Firefighter.5
After a year, Mr. Reed’s probationary period successfully ended and he became a “full-fledged”
Firefighter.6 Mr. Reed served at the rank of Firefighter for about two years.7 Around September
of 1997, Mr. Reed was promoted to the rank of Driver.8
I. The Founding of the Firefighter’s Union and the Public Debate Over the Permanent Sales
Tax Proposal
In 2000, Mr. Reed became a charter member of a firefighter’s labor union––Local 4016.9
Local 4016 is a branch of the International Association of Firefighters.10 The Fire Chief at the
time (Bart Castleberry) did not join Local 4016 and was not pleased with its creation.11 Defendant
Winter did not join Local 4016 either.12
At the inception of Local 4016, Mr. Reed was vice president of Local 4016.13 In 2001, he
became president.14 At this time, the City of Conway was losing trained firefighters and police
officers because it couldn’t keep pace with the salaries that neighboring cities paid these civil
4 On summary judgment, the Court recites the genuinely disputed facts in a light most favorable to the plaintiff,
including giving the plaintiff all reasonable inferences from the facts. Haggenmiller v. ABM Parking Servs., Inc.,
837 F.3d 879, 884 (8th Cir. 2016). Of course, the Court also relies on undisputed facts. Essentially, the Court
considers the most pro-plaintiff version of the facts that a rational juror could find on this record. Accordingly, the
Court’s factual recitation is only good for the summary judgment motion.
5 Ex. 1 (Reed Dep.) to Defs.’ Statement of Facts (Doc. 16-1) at 9:24–10:2.
6 Id. at 10:7–12.
7 Id. at 10:17–19.
8 Id. at 9:19–10:21.
9 Id. at 48:15–16.
10 Id. at 97:12–18.
11 Id. at 188:7–9.
12 Id. 49:17–19.
13 Id. at 50:2–3.
14 Id.
servants.15 Mr. Reed took an active role to remedy the situation.16 He strongly advocated in favor
of a permanent sales tax increase to enable the City of Conway to remain competitive in terms of
pay.17 Mr. Reed’s advocacy included his speaking to the media about the proposed tax.18
On September 4, 2001, Mr. Castleberry sent a memorandum to all fire personnel.19 This
memorandum told members of the Conway Fire Department not to “contact any Councilman or
the Mayor concerning any internal administrative fire matter, except via the chain of command or
by special permission of the Fire Chief” (Mr. Castleberry).20 This directive went further. Mr.
Castleberry required all members of the Conway Fire Department to “immediately notify” him if
“contacted by a [C]ouncilman or the Mayor concerning any internal administrative fire matter . . .
.”21 Finally, Mr. Castleberry prohibited any member of the Conway Fire Department from
referring “any citizen directly to a Councilman or the Mayor.”22 Any citizen requests that could
not be handled by an officer were required to go up the chain of command.23
On September 10, 2001, Mr. Reed questioned Mr. Castleberry (in writing) about the
memorandum.24 Mr. Reed asked Mr. Castleberry to “define internal administrative fire matter.”25
Mr. Castleberry responded and defined the term as “[a]ny fire department business or matter
15 Id. at 63:3–5.
16 Id. at 63:12–13.
17 Id. at 63:8–10.
18 Id. at 181:18–20. Mr. Reed’s efforts paid off, and the citizens of Conway passed the sales tax increase in 2001.
Id. at 181:15–17; see also id. at 187:11 (Mr. Reed explaining that the citizens of Conway voted in favor of the tax
in 2001).
19 Ex. 1 to Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 19-1) at 1.
20 Id.
21 Id.
22 Id.
23 Id.
24 Id. at 2.
25 Id. at 3.
pertaining to the Conway Fire Department[.] [T]his includes but is not limited to budget, staffing,
policies, procedures, grievances, disciplinary matters, operations, planning, training, prevention
… [or] any fire department business or matter.”26
On December 10, 2001, Mr. Reed, on behalf of Local 4016, penned a formal letter to Mr.
Castleberry.27 Mr. Reed objected to Mr. Castleberry’s memorandum.28 Mr. Reed wrote that the
memorandum violated the First Amendment to the United States Constitution.29 Mr. Reed relied
on Supreme Court cases to express his belief that “employees of a local government, like other
citizens, have the First Amendment right to speak out about matters of public concern.”30 Mr.
Reed also pointed out that Mr. Castleberry’s memorandum was egregious because it constituted a
“prior restraint.”31 Mr. Reed concluded the letter with a request that Mr. Castleberry “reconsider
the memo and allow [the firefighters] to enjoy [their] First Amendment right of free speech.”32 No
direct response to Mr. Reed’s letter appears in the record.
On March 21, 2002, an attorney for Local 4016 wrote to the then-Mayor of Conway, Tab
Townsell.33 By and large, this letter repeated the sentiments that Mr. Reed had expressed in his
letter to Mr. Castleberry.34 The letter explained that local-government employees enjoy free
speech rights when speaking out on matters of public concern.35 The letter told Mayor Townsell
26 Id. Mr. Castleberry did except from this definition any “unethical, immoral, or illegal activity by the Fire Chief in
which case the matter should be reported to the Mayor.” Id.
27 Id. at 4.
28 Id.
29 Id.
30 Id.
31 Id.
32 Id. at 5.
33 Id. at 6.
34 Id. at 6–7.
35 Id. at 6.
that Mr. Castleberry’s memorandum constituted an “unlawful prior restraint and a violation of the
constitutional right of a public employee to engage in free speech about matters of public
concern.”36 The letter concluded with a request for Mayor Townsell to “take action to correct this
situation.”37
On June 12, 2002, Mayor Townsell sent out a memorandum to “All Department heads and
Employees.”38 The memorandum was meant to “clarify some confusion about an employee’s right
to contact [Mayor Townsell] and/or exercise their right of free speech.”39 Mayor Townsell said
that an employee must notify his or her department head before exercising his or her “right to
contact the Mayor . . . .”40 Mayor Townsell cabined the notice requirement by saying that prior
approval was not required to speak with him and that the prior notice requirement did not apply
when an employee had information “about a Supervisor, Department Head, or other employee
concerning activities or actions of an illegal or unethical nature . . . .”41 The memorandum
informed employees with grievances to follow the established grievance procedure.42 Employees
were allowed to contact the Human Resources Director about personnel matters.43 Finally, Mayor
Townsell said, “By virtue of the First Amendment, employees have the right to express themselves
about matters of public concern, but they do not have the right to disrupt the workplace or impede
other employees’ ability to perform their duties.”44
36 Id. at 6–7.
37 Id. at 7.
38 Id. at 10.
39 Id.
40 Id.
41 Id.
42 Id.
43 Id.
44 Id. It seems that the members of Local 4016 did not get the memo. On June 18, 2002, Local 4016 (through an
attorney) again wrote to Mayor Townsell. Id. at 8. The letter said that the attorney’s previous letter and Mr. Reed’s
II. Mr. Reed’s 2010 and 2012 Lawsuits
In 2003, Mr. Reed was promoted from Driver to Lieutenant.45 At this point, Mr. Reed’s
climb up the ladder stalled for approximately seven years. In 2010, Mr. Reed addressed the stall
by filing a lawsuit against the City of Conway, Mayor Townsell, and Mr. Castleberry.46 In the
lawsuit, Mr. Reed claimed that he was not promoted to the rank of Captain because of his
participation in Local 4016.47 The 2010 lawsuit settled in 2011.48 As part of the settlement, Mr.
Reed attained the rank of Captain retroactive to 2008.49 On March 10, 2011, Mr. Reed began his
work as a Captain.50
The 2010 lawsuit was not Mr. Reed’s only legal scuffle with the powers that be in the City
of Conway. On September 18, 2012, a class action was brought against the City of Conway in
state court (which eventually settled in 2019).51 The class action was styled Richard Shumate Jr.
and Damon Reed on behalf of themselves and all similarly situated persons and entities v. City of
Conway, Arkansas (Shumate).52 Richard Shumate was one of two lead plaintiffs and represented
letter were “ignored” by the City of Conway. Id. Local 4016 assumed “that no remedial action has been taken to
rescind the unconstitutional policy which prohibits employees from communicating” with the Mayor or the City
Council. Id. At bottom, the firefighters wanted to know if they would face discipline for exercising their “First
Amendment rights of free speech . . . .” Id. The letter then provided hypothetical situations to the Mayor and
asked if each situation violated the existing policy established by Mr. Castleberry’s memorandum. Id. For
instance, the letter asked, “If a fire fighter expressed concern directly to you, as the Mayor, or to a City Council
member, regarding deficient dispatching procedures or slow fire and rescue response times, would it violate the
existing policy?” Id. The letter closed with a request to provide answers to the hypothetical situations and
threatened legal action if the unconstitutional policy was allowed to remain in effect. Id.
45 Ex. 1 (Reed Dep.) to Defs.’ Statement of Facts (Doc. 16-1) at 10:25–11:13.
46 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 19) ¶¶ 7–8.
47 Id. ¶ 8.
48 Id. ¶ 9; Ex. 1 (Reed Dep.) to Defs.’ Statement of Facts (Doc. 16-1) at 12:19–22.
49 Ex. 1 (Reed Dep.) to Defs.’ Statement of Facts (Doc. 16-1) at 11:14–17.
50 Id. at 13:1–3.
51 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 19) ¶¶ 10, 120.
52 Id. ¶ 10.
Conway police officers.53 Mr. Reed was the other lead plaintiff, representing all employees of the
Conway Fire Department (which at the time included Mr. Castleberry and Mr. Winter).54 The case
involved claims against the City of Conway for illegal exaction and breach of contract.55 At
bottom, the plaintiffs claimed that the City of Conway was not properly using revenue generated
from the 2001 sales tax (the one that Mr. Reed helped to get passed) to compensate uniformed
personnel.56
III. Mr. Reed’s Opportunity to Become a Battalion Chief
In February of 2014, Mayor Townsell tapped Michael Winter as the new Fire Chief.57 In
December of 2014, one of the six Battalion Chief positions opened up.58 The rank of Battalion
Chief is one rung above Captain (Mr. Reed’s rank).59 Battalion Chiefs make $12,000 more per
year than do Captains.60 Mr. Reed applied for but did not get this promotion.61 Mr. Reed said that
this got him thinking that, if he was going to achieve the rank of Battalion Chief, he did not “need
to be in a union leadership role . . . .”62 Mr. Reed believed that a Battalion Chief “does not need
53 Ex. 1 (Reed Dep.) to Defs.’ Statement of Facts (Doc. 16-1) at 62:10–12.
54 Id. at 62:13–17; Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 19) ¶ 12. On September 26, 2014, Mr. Reed sat for
a deposition in the Shumate class action. Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 19) ¶ 150. On January 29,
2015, Mr. Reed “swore out an affidavit in Shumate.” Id. ¶ 151. Beyond these two instances, the record does not
reveal that Mr. Reed (aside from his being a named plaintiff) had any other personal involvement in this case after
January of 2015.
55 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 19) ¶ 12.
56 Ex. 1 (Reed Dep.) to Defs.’ Statement of Facts (Doc. 16-1) at 62:16–63:1.
57 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 19) ¶ 14. In July of 2013, Mr. Castleberry retired from his position
as Fire Chief. Id. ¶ 13. He became the “Director of Permits and Inspectors for the City.” Id. ¶ 16. Brian Moix
briefly served as interim Fire Chief while the City of Conway searched for Mr. Castleberry’s permanent
replacement. Id. ¶ 14.
58 Ex. 1 (Reed Dep.) to Defs.’ Statement of Facts (Doc. 16-1) at 50:14–15; see id. 175:17–18 (Mr. Reed testifying
that there have always been six Battalion Chiefs).
59 Id. at 13:14–17.
60 Id. at 45:4–7.
61 Id. at 51:14–15. Mr. Reed’s suit is not based on the 2014 opening.
62 Id. at 50:16–18. Mr. Reed does not suggest that anyone else thought this, or said something to him like this. Rather,
this was Mr. Reed’s own supposition.
to be union president.”63 Battalion Chiefs must discipline firefighters.64 Mr. Reed said that
conflicts could arise by virtue of his having to discipline union members while at the same time
being president of the union.65 Mr. Reed thus resigned as president of Local 4016 in March of
2015.66 Since that time, the only “conduct [Mr. Reed] has engaged in on behalf of the union has
been as one of the lead plaintiffs in the [(2012)] Shumate lawsuit.”67
In November of 2016, Mr. Castleberry (the former Fire Chief) became the Mayor of
Conway.68 A little less than a year later, in September of 2017, Mr. Reed re-engaged in the process
to become a Battalion Chief.69 The road to Battalion Chief begins with a testing cycle. The testing
cycle occurs annually whether an opening for Battalion Chief exists or not.70 When testing is
complete, candidates’ composite scores are tabulated.71 Candidates are then ranked “highest to
lowest, based on their composite score . . . .”72 After that, the Fire Chief presents the scores to the
63 Id. at 51:5–6.
64 Id. at 51:8–9.
65 Id. at 51:5–11.
66 Id. at 50:9–12.
67 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 19) ¶ 149.
68 Id. ¶ 17.
69 Id. ¶¶ 18, 20.
70 Id. ¶¶ 28, 32–33. The testing cycle occurs over the course of one week and has three stages. Id. ¶¶ 32–33. First,
qualified candidates take a written exam administered by a testing company. Id. ¶¶ 27, 29. A candidate must pass
this exam to continue to the other stages. Id. ¶ 32. The written exam makes up forty percent of a candidate’s
composite score on the testing cycle. Id. ¶ 26. Second, candidates participate in an “‘inbox exercise,’ which
consists of prioritizing 10 items that a Battalion Chief would normally have to work through before a shift.” Id. ¶
32. The inbox exercise counts for 20% of the candidate’s composite score.” Id. Third, a candidate goes through
a “practical exercise,” which accounts for the remaining forty percent of a candidate’s composite score. Id.
71 Id. ¶ 34.
72 Id.
Conway Civil Service Commission.73 The Commission certifies the list of rankings.74 The
certified list of rankings is good for one year.75
If a position opens up during that year, the three highest-scoring candidates interview with
a panel of Chiefs.76 The panel consists of all six Battalion Chiefs and all three Assistant Chiefs,
but not the Fire Chief.77 The Chiefs panel interviews the three candidates on the same day.78 After
the interviews, the panel members cast a secret written vote, “resulting in the panel’s
recommendation to the Fire Chief of a particular candidate for the promotion.”79 After the vote,
the Fire Chief joins the panel members and counts the votes.80 The Fire Chief then announces (to
the panel only) the name of the candidate with the most votes.81 The Fire Chief also asks the panel
if any further discussion is necessary regarding the candidate with the most votes.82 “The custom
and practice at the time [of the events in this case] was to promote those who got the [most] vote[s]
. . . .”83 The Fire Chief, however, makes the final call on whether a particular candidate gets
promoted.84
73 Id.
74 Id.
75 Id. ¶ 35.
76 Id. ¶ 36.
77 Id. ¶¶ 36, 38.
78 Id. ¶ 36.
79 Id. ¶ 39. Before Chief Winter served as Fire Chief, the panel conducted a verbal vote. Id. ¶ 40. Chief Winter
instituted the change to written votes. Id.
80 Id. ¶ 41.
81 Id.
82 Id. Mr. Reed denies this statement, but his denial goes to the ultimate outcome of the promotion and not to whether
the Fire Chief asks about any issues with a particular candidate. Id. There is no dispute that the Fire Chief asks
the Chiefs panel whether there are any issues with a recommended candidate.
83 Id. ¶ 41.
84 Id. ¶ 42.
By January of 2018, Chief Winter knew that one Battalion Chief position was opening up
because Battalion Chief Jerry Gipson was being promoted to Assistant Chief in February of 2018.85
There was also a strong possibility that another Battalion Chief, Mark Jones, was going to retire
in May of 2018.86 To fill the guaranteed spot and the potential spot, the Conway Fire Department
relied on the results of the 2017 testing cycle. Mr. Reed had the highest composite score on the
2017 testing cycle for Battalion Chief.87 Joshua Odom came in second.88 Chad Johnson came in
third.89 Jeff Moix had the fourth highest score.90
In January of 2018, the Chiefs panel interviewed candidates for the potential Battalion
Chief positions.91 For the guaranteed February 2018 opening, the panel interviewed Mr. Reed,
Mr. Odom, and Mr. Johnson.92 Mr. Johnson received the panel’s recommendation.93 Chief Winter
announced that Mr. Johnson would receive the promotion.94 The panel reconvened on the same
day to consider Mr. Reed, Mr. Odom, and Mr. Moix for the possible May 2018 opening.95 The
panel unanimously recommended Mr. Reed to fill that opening.96 Chief Winter did not make a
85 Id. ¶ 22.
86 Id. ¶ 23.
87 Id. ¶¶ 18, 20.
88 Id. ¶ 20.
89 Id.
90 Id.
91 Id. ¶ 43.
92 Id.
93 Id. ¶ 44.
94 Id.
95 Id. ¶ 45.
96 Ex. 1 (Reed Dep.) to Defs.’ Statement of Facts (Doc. 16-1) at 114:15–18. In his briefing, Mr. Reed says multiple
times that the Chiefs-panel vote for the May 2018 promotion occurred a day before Chief Winter denied Mr. Reed
the promotion to Battalion Chief in May of 2018. Pl.’s Resp. to Defs.’s Mot. for Summ. J. (Doc. 18) at 11. Mr.
Reed also says that “[t]he failure to promote Plaintiff came one-day after the vote approving him . . . .” Id. at 12.
But Mr. Reed’s own deposition and admissions in his response to Defendants’ Statement of Facts support the
undisputed fact that the Chiefs panel voted in January of 2018 for the possible May 2018 promotion. See Pl.’s
Resp. to Defs.’ Statement of Facts (Doc. 19) ¶ 45; Ex. 1 (Reed Dep.) to Defs.’ Statement of Facts (Doc. 16-1) at
promotion announcement for the possible May 2018 opening at this time because such an
announcement occurs only when a position is actually vacant.97 But just after the panel voted,
another Battalion Chief, Charles Prout, told Mr. Reed that Mr. Reed was getting the next available
Battalion Chief spot.98
At some point, Chief Winter received formal notification that Battalion Chief Jones was
indeed going to retire in May of 2018.99 Then, “[w]ord began circulating around the [Conway Fire
Department] that [Mr.] Reed was going to be promoted to the Battalion Chief position vacated by
Mark Jones.”100 As Mr. Jones’s retirement drew closer, Chief Winter began receiving verbal
complaints about Mr. Reed from several men on Mr. Reed’s shift.101 Specifically, these men
complained that Mr. Reed “belittle[d] and curse[d] them.”102
Between May 21 and May 23, 2018, Chief Winter discussed the complaints about Mr. Reed
with the Battalion Chiefs and Assistant Chiefs.103 Chief Winter asked them whether they believed
109:11–19.
97 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 19) ¶ 48.
98 Id. ¶ 49.
99 Id. ¶ 52.
100 Id. ¶ 53.
101 Ex. 2 (Winter Decl.) to Defs.’ Statement of Facts (Doc. 16-2) ¶ 25. Mr. Reed denies that Chief Winter received
complaints at this time. He says that “these allegations were only created after the denial of the promotion to [Mr.]
Reed as a means to justify the already-made decision not to promote [Mr.] Reed.” Pl.’s Resp. to Defs.’ Statement
of Facts (Doc. 19) ¶ 54. Mr. Reed also says that Chief Winter “later solicited [the complaints] for the purpose of
covering-up the real reason for the failure to promote Plaintiff.” Id. ¶ 55. Mr. Reed’s bald assertions are wholly
unsupported by any record evidence. Mr. Reed has no personal knowledge about the timing of the complaints.
Mr. Reed doesn’t say that any of the complaining firefighters told him the complaints came after the denial of the
promotion. Tellingly, Mr. Reed’s counsel chose not to depose any of the complaining firefighters. Mar. 18, 2022
Hr’g Tr. (Rough) at 36. Mr. Reed’s counsel gave the following reason for that choice: “[D]eponents just lie.” Id.
Chief Winter provided a declaration saying that he received the verbal complaints before making the promotion
decision. Mr. Reed has provided no cognizable evidence to raise a genuine dispute of fact with respect to Chief
Winter’s declaration on this point. The fact that Chief Winter received complaints before making the May 2018
promotion decision is thus undisputed for purposes of summary judgment. See Fed. R. Civ. P. 56(e)(2) (stating
that, “if a nonmovant . . . fails to properly address another party’s assertion of fact . . ., the court may . . . consider
the fact undisputed for purposes of the motion” for summary judgment).
102 Ex. 2 (Winter Decl.) to Defs.’ Statement of Facts (Doc. 16-2) ¶ 25.
103 Id. ¶ 26.
Mr. Reed was still the person for the job.104 The majority of the Battalion Chiefs and Assistant
Chiefs said that “it’s [Mr. Reed’s] time.”105 Chief Winter also spoke with Mr. Johnson (now a
Battalion Chief) about whether Mr. Johnson had any issues with Mr. Reed during the time Mr.
Reed and Mr. Johnson were Captains at the same fire station.106 Mr. Johnson confirmed that Mr.
Reed “cursed and belittled the men he worked with . . . .”107 Around this time, Chief Winter asked
Mr. Johnson and the other firefighters who had complained about Mr. Reed’s treatment of them
“to put their respective complaints in writing.”108
On May 23, 2018, Chief Winter “met with [Mr.] Reed, Battalion Chief Jones, and Battalion
Chief Prout to discuss the character issues [Chief Winter] was being informed of regarding [Mr.
Reed] with the name calling and belittling.”109 Chief Winter specifically told Mr. Reed of verbal
complaints that Chief Winter had received about Mr. Reed belittling subordinates at a March 2018
training exercise called Journeyman.110 Chief Winter told Mr. Reed that Mr. Reed would no longer
be conducting Journeyman.111 Chief Winter also revealed to Mr. Reed that Chief Winter was
“gathering some facts . . . to try to determine whether [Chief Winter] was going to promote [Mr.
Reed] or not.”112 This meeting was the first time Mr. Reed learned that he might not be getting
the May 2018 promotion to Battalion Chief.113
104 Id.
105 Id.
106 Id. ¶ 27.
107 Id.
108 Id. ¶¶ 27, 30.
109 Id. ¶ 32; see also Ex. 1 (Reed Dep.) to Defs.’ Statement of Facts (Doc. 16-1) at 116–117:3.
110 Ex. 1 (Reed Dep.) to Defs.’ Statement of Facts (Doc. 16-1) at 116:19–22, 154:19–25.
111 Id. at 154:19–25.
112 Id. at 116:25–117:3.
113 Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 19) ¶ 98.
The next day, May 24, 2018, Chief Winter met with Mr. Reed again.114 Chief Winter told
Mr. Reed “that this was his time, and that [Chief] Winter had been going to promote [Mr.] Reed
to Battalion Chief, but Chief Winter could not have him ([Mr.] Reed) in charge of a shift when he
displayed these types of characteristics.”115 Chief Winter then told Mr. Reed that Mr. Reed would
not receive the promotion.116 Instead, Chief Winter promoted another union member, Mr. Moix,
to the position.117
On the same day, Mr. Reed made a copy of his personnel file.118 The personnel file did
not contain any mention of the verbal complaints Chief Winter raised with Mr. Reed during the
May 23 and May 24, 2018 meetings.119 In June of 2018, Chief Winter received several written
complaints from Conway firefighters about Mr. Reed’s belittling behavior.120 As explained supra,
Chief Winter had asked these firefighters to put in writing the verbal complaints they made to
Chief Winter during the time period leading up to May 24, 2018.121 Justin Adlong wrote that Mr.
Reed called subordinates “names such as [d]umbass, and dipshit” throughout the whole March
2018 Journeyman training exercise.122 Samuel Brannan wrote that, at Journeyman, Mr. Reed
continuously called several probationary firefighters “dumbasses,” “lazy asses,” and “stupid.”123
114 Id. ¶ 100.
115 Id.
116 Id. ¶ 101.
117 Id. ¶¶ 115, 156. Chief Winter, from 2014 (the year he became Fire Chief) through May 27, 2018, has promoted
six members of Local 4016 to the rank of Battalion Chief. Id. ¶ 156.
118 Ex. 1 (Reed Dep.) to Defs.’ Statement of Facts (Doc. 16-1) at 188:22–189:6.
119 Id. at 188–189:3.
120 See Exs. 8–15 to Defs.’ Statement of Facts (Docs. 16-8–16-15).
121 Ex. 2 (Winter Decl.) to Defs.’ Statement of Facts (Doc. 16-2) ¶ 30.
122 Ex. 11 to Defs.’ Statement of Facts (Doc. 16-11) at 1; see also Ex. 1 (Reed Dep.) to Defs.’ Statement of Facts (Doc.
16-1) at 137:20–24 (Mr. Reed declining to call Mr. Adlong a liar with respect to Mr. Adlong’s complaint).
123 Ex. 12 to Defs.’ Statement of Facts (Doc. 16-12) at 1; see also Ex. 1 (Reed Dep.) to Defs.’ Statement of Facts (Doc.
16-1) at 140:10–14 (Mr. Reed testifying that he is not calling Mr. Brannan a liar with respect to Mr. Brannan’s
complaint).
A.E. Hurst wrote that, on March 30, 2018, Mr. Reed “blew up on [him] and went to cussing [him]
. . . .”124
DISCUSSION
Chief Winter and the City of Conway move for summary judgment on all claims against
them.125 A court shall grant summary judgment when there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of law.126 The moving party has the
burden to show that (1) there is an absence of a genuine dispute of material fact on at least one
essential element of the nonmoving party’s case and (2) the absence means that a rational juror
could not possibly find for the nonmoving party on that essential element of the nonmoving party’s
case.127 Conversely, if the nonmoving party can present specific facts by “affidavit, deposition, or
otherwise, showing the existence of a genuine issue for trial,” then summary judgment is not
appropriate.128
Importantly, “[t]he mere existence of a factual dispute is insufficient alone to bar summary
judgment . . . .”129 The dispute of fact must be both genuine and material to prevent summary
judgment.130 A genuine dispute of fact exists where a rational juror could decide the particular
question of fact for the nonmoving party.131 A material dispute of fact exists where the juror’s
124 Ex. 8 to Defs.’ Statement of Facts (Doc. 16-8) at 1; see also Ex. 1 (Reed Dep.) to Defs.’ Statement of Facts (Doc.
16-1) at 123:1–22 (Mr. Reed “not claiming that [Mr. Hurst is] lying” with respect to Mr. Hurst’s complaint). The
record contains letters from other Conway firefighters describing similar treatment by Mr. Reed. See Exs. 8–15 to
Defs.’ Statement of Facts (Docs. 16-8–16-15).
125 Defs.’ Mot. for Summ. J. (Doc. 15) at 2.
126 Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (citing FED. R. CIV. P. 56(c)(2)).
127 Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). Technically, this case is set for a bench trial, which means
the Court would ultimately sit as the trier of fact. In any event, for purposes of this Order, the Court will use the
rational juror standard.
128 Grey v. City of Oak Grove, 396 F.3d 1031, 1034 (8th Cir. 2005).
129 Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989).
130 Id.
131 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
decision on the particular question of fact determines the outcome of a potentially dispositive issue
under the substantive law.132
I. Mr. Reed’s First Amendment Retaliation Claim Against Chief Winter
Mr. Reed alleges that Chief Winter denied him the 2018 promotions to Battalion Chief in
retaliation for Mr. Reed’s exercise of his First Amendment rights.133 Chief Winter argues that he
is entitled to summary judgment for two independent reasons: (1) Mr. Reed cannot establish a
causal link between Mr. Reed’s not receiving the promotions and his “participation in protected
activity;” and (2) Mr. Reed cannot establish that Chief Winter’s reasons for denying Mr. Reed the
promotions were pretext for retaliation.134 The Court agrees on both points.
A. The Applicable Legal Test
Mr. Reed does not suggest that he has any direct evidence of First Amendment retaliation.
The record confirms that there is no such evidence.135 The parties agree that, in the absence of
direct evidence, Mr. Reed’s claim (for purposes of summary judgment) should be analyzed under
132 Id.
133 Compl. (Doc. 1) ¶¶ 26–35. While Mr. Reed’s Complaint seems to allege multiple instances of First Amendment
Retaliation, Mr. Reed “stipulates to the dismissal of all non-2018 claims . . . .” Pl.’s Resp. to Defs.’ Mot. for
Summ. J. (Doc. 18) at 1 n.1. It is legally possible for Mr. Reed to make two types of claims––a First Amendment
retaliation claim and a First Amendment discrimination claim. In Wagner v. Jones, the Eighth Circuit highlighted
a distinction between First Amendment discrimination and First Amendment retaliation. 664 F.3d 259, 269 (8th
Cir. 2011). Analogizing to Title VII claims, the Eighth Circuit explained that a First Amendment discrimination
claim “seeks to prevent injury to individuals based on who they are, i.e., their status.” Id. (quoting Burlington N.
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006)). Conversely, First Amendment retaliation claims “seek to
prevent harm to individuals based on what they do, i.e., their conduct.” Id. (quoting Burlington, 548 U.S. at 63).
Mr. Reed’s claim is based in part on his status as a union member. So an argument could be made that Mr. Reed
has a discrimination claim and a retaliation claim. But neither party has even hinted at a potential First Amendment
discrimination claim. The Court will not conjure up this claim on its own. So the only First Amendment claims
addressed here are the retaliation claims.
134 Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 17) at 43, 56–57.
135 The Eighth Circuit describes “[d]irect evidence of retaliation” as “evidence that demonstrates a specific link
between a materially adverse action and the protected conduct, sufficient to support a finding by a reasonable fact
finder that the harmful adverse-action was in retaliation for the protected conduct.” Lors v. Dean, 746 F.3d 857,
865 (8th Cir. 2014). There is no whiff in the record of direct evidence that Mr. Reed’s First Amendment protected
activity is directly linked to Chief Winter’s promotion decisions.
a burden-shifting framework.136 But the parties have not provided very clear guidance or caselaw
support as to what burden-shifting framework applies to a public employee’s claim of First
Amendment retaliation. This is not really the parties’ fault, as the Eighth Circuit precedent has
not consistently taken, or settled on, one approach.137
Although the appropriate test is not free from doubt, the Court concludes that a recent
Eighth Circuit opinion—Henry v. Johnson—provides the most logical way forward in First
Amendment retaliation cases involving only circumstantial evidence.138 In Henry, Judge Grasz,
joined by Judges Shepherd and Kobes, convincingly united the two tests historically used in this
Circuit. According to Henry, the prima facie case requires Mr. Reed to show (1) that “he engaged
in First-Amendment-protected activity;” (2) that Chief Winter “took an adverse employment
action against him;” and (3) that the “protected [activity] was a substantial or motivating factor in
[Chief Winter’s] decision to take the adverse employment action.”139 If a plaintiff prevails on the
prima facie test, then he wins the case unless the defendant can prove that it would have taken the
same adverse employment action absent the protected activity.
136 See Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 18) at 7–8; Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 17)
at 33–34.
137 In cases lacking direct evidence of retaliation, there are seemingly two choices: (1) the burden-shifting framework
announced by the Supreme Court in Mount Healthy v. Doyle; or (2) the McDonnell Douglas burden-shifting
framework. See Davison v. City of Minneapolis, 490 F.3d 648, 655 n.5; Mt. Healthy City Sch. Dist. v. Doyle, 429
U.S. 274, 287 (1977). Although the prima facie cases in both frameworks are very similar, the burden-shifting
consequences of making out a prima facie case are significantly different. In short, it is harder for Plaintiffs to
ultimately prevail on a claim using the McDonnell Douglas framework. Compare Davison, 490 F.3d at 654–55
(8th Cir. 2007), with Hughes v. Stottlemyre, 506 F.3d 675, 678–79 (8th Cir. 2007). In Davison, a divided panel of
the Eighth Circuit flagged an intra-circuit conflict on the question of whether direct evidence of retaliation is
required to trigger the Mount Healthy framework. Davison, 490 F.3d at 655 n.5. Some cases, according to the
majority, stated “that the Mount Healthy framework applies only where the plaintiff has presented direct evidence
showing that the employer used the plaintiff’s protected speech as a criterion in the employment decision.” Id. “In
contrast,” the majority noted, other Eighth Circuit decisions “have employed the Mount Healthy framework in First
Amendment cases without requiring that the plaintiff present direct evidence.” Id. This divide endures today.
138 950 F.3d 1005 (8th Cir. 2020).
139 Id. at 1011.
The first two prongs of Henry’s prima facie case are self-explanatory. But the third prong
requires further discussion. That prong contains its own “three-part, burden-shifting inquiry.”140
Part one of this sub-test requires Mr. Reed to “show that he suffered an adverse employment action
that was causally connected to his participation in a protected activity.”141 If Mr. Reed does so,
the Court moves on to part two of the sub-test, where “the burden shifts to [Chief Winter] to show
a legitimate, nondiscriminatory reason for his . . . actions.”142 And if Chief Winter makes that
showing, part three of the sub-test shifts the burden “back to [Mr. Reed] to show that [Chief
Winter’s] actions were a pretext for illegal retaliation.”143
B. Application of the Test to Mr. Reed’s Claim
Mr. Reed meets the first two prongs of his prima facie case under Henry. With respect to
whether Mr. Reed engaged in protected activity, Chief Winter concedes (for purposes of summary
judgment) that Mr. Reed’s participation in the Shumate lawsuit was a protected activity.144
Additionally, the “freedom of association is a basic constitutional freedom . . . .”145 “Freedom of
association includes membership in unions or other organizations concerned with ‘business and
economic causes.’”146 Thus, Mr. Reed’s membership in the firefighter’s union was protected
activity as well.147
140 Id. at 1014.
141 Id. (quoting Morris v. City of Chillicothe, 512 F.3d 1013, 1018–19 (8th Cir. 2008)).
142 Id. (quoting Morris, 512 F.3d at 1019).
143 Id. (quoting Morris, 512 F.3d at 1019).
144 Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 17) at 36.
145 Wingate v. Gage Cnty. Sch. Dist., No. 34, 525 F.3d 1074, 1081 (8th Cir. 2008).
146 Greminger v. Seaborne, 584 F.2d 275, 278 (8th Cir. 1978).
147 Connick v. Myers, 461 U.S. 138, 148 n.7 (1983) (“The inquiry into the protected status of speech is one of law, not
fact.”).
With respect to whether Mr. Reed suffered an adverse employment action, Chief Winter
admits that “being passed over for a promotion may constitute an adverse employment action.”148
That’s a wise admission. The Eighth Circuit says that an adverse employment action “is exhibited
by a material employment disadvantage, such as a change in salary, benefits, or
responsibilities.”149 It is undisputed that Mr. Reed did not get a promotion to Battalion Chief. It
is undisputed that Mr. Reed’s salary would have increased had he gotten the promotion. A rational
juror could readily find that Mr. Reed’s not attaining a higher rank with better pay constituted an
adverse employment action.
Mr. Reed’s First Amendment retaliation claim falters on the third prong of his prima facie
case. To get past the third prong of his prima facie showing, Mr. Reed provide evidence that could
persuade a convince a rational juror that Mr. Reed’s “protected speech was a substantial or
motivating factor in [the Defendants’] decision to take the adverse employment action.”150 “While
causation is generally a jury question, this [C]ourt must decide if sufficient evidence exists to
create a factual question for the jury.”151 To make that decision, the Court must determine whether
Mr. Reed can, on this record, navigate (for summary judgment purposes) Henry’s three-part sub-
test. He cannot.
On part one of Henry’s sub-test, Mr. Reed must provide evidence from which a rational
juror could conclude that Mr. Reed “suffered an adverse employment action that was causally
connected to h[is] participation in a protected activity.”152 In the Eighth Circuit, “[t]o prove a
148 Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 17) at 38.
149 Myers v. Starke, 420 F.3d 738, 744 (8th Cir. 2005) (internal quotations omitted) (citation omitted).
150 Henry, 950 F.3d at 1014.
151 Id.
152 Ackerman v. Iowa, 19 F.4th 1045, 1059 (8th Cir. 2021) (quoting Henry, 950 F.3d at 1014).
causal connection, . . . a plaintiff must prove an employer’s retaliatory motive played a part in the
adverse employment action.”153 “[E]vidence that gives rise to an inference of retaliatory motive
on the part of the employer is sufficient to prove a causal connection” at the prima facie stage.154
Mr. Reed does not direct the Court to any evidence that Chief Winter’s promotion decisions
were somehow influenced by Mr. Reed’s union membership or his participation in a long-running
lawsuit against the City of Conway (but not against Chief Winter or any fire personnel). No record
evidence suggests that Chief Winter was opposed to the union at all. No record evidence suggests
that Chief Winter was concerned in any way about the lawsuit either.
Perhaps recognizing this glaring hole in his case, Mr. Reed argues that the temporal
proximity between the 2018 promotion denials and his protected activity is enough to satisfy the
causation element.155 But, on this record, temporal proximity alone is not enough to get Mr. Reed
over the causation hurdle. The Eighth Circuit acknowledges that temporal proximity between
protected activity and an adverse employment action can be “sufficient to create an inference of
retaliation.”156 But “[g]enerally, more than a temporal connection between protected conduct and
the adverse employment action is required to present a genuine factual issue on retaliation.”157
According to the Eighth Circuit, “for temporal proximity alone to be sufficient, ‘the temporal
proximity must be very close.’”158 And while the Eighth Circuit hasn’t established a dividing line
153 Hughes, 454 F.3d at 797.
154 Id.
155 Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 18) at 11.
156 Bassett v. City of Minneapolis, 211 F.3d 1097, 1105 (8th Cir. 2011), abrogated on other grounds by Torgerson v.
City of Minneapolis, 643 F.3d 1031, 1043, 1059 (8th Cir. 2011).
157 Cf. Sisk v. Picture People, Inc., 669 F.3d 896, 900 (8th Cir. 2012) (quoting Kiel v. Select Artificials, Inc., 169 F.3d
1131, 1136 (8th Cir.1999) (en banc)).
158 Id. (quoting Hite v. Vermeer Mfg., 446 F.3d 858, 866 (8th Cir. 2006)).
between “very close” and not close enough, it has indicated that “[m]ore than two months is too
long to support a finding of causation without something more.”159
Temporal proximity does not work for Mr. Reed. Mr. Reed argues that that his “speech
was ongoing at the time” he was passed over in May of 2018.160 But he doesn’t support this
argument. To determine when the temporal-proximity clock starts, the Eighth Circuit looks to “the
date [Chief Winter] knew of” Mr. Reed’s protected activity.161 With respect to the 2012 Shumate
lawsuit, Mr. Reed submitted an affidavit in the case in January of 2015. That is the last action Mr.
Reed took in the lawsuit. To be sure, the case languished on for another four years. But being a
named plaintiff in a long-running lawsuit does not mean that Mr. Reed was cloaked in a perpetual-
protected-activity status for temporal-proximity purposes. Assuming Chief Winter even knew
about the 2012 lawsuit and about Mr. Reed’s 2015 affidavit, the latest the temporal-proximity
clock started was January of 2015.162 The promotion decisions occurred nearly three years later.
That’s far too long to allow a rational juror to infer a causal connection between the protected
activity and the promotion decisions.
With respect to his union membership, Mr. Reed gave up his role as president in March of
2015. Since then, it is undisputed that Mr. Reed’s only union related conduct consisted of his
participation as a named plaintiff in Shumate.163 Again, Mr. Reed being a named plaintiff in a
159 Id.
160 Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 19) at 13.
161 Cf. Sisk, 669 F.3d at 901.
162 There is no evidence that Chief Winter knew about the affidavit. With respect to the Shumate case generally, Mr.
Reed testified that Chief Winter knew about the litigation. Ex. 1 (Reed Dep.) to Defs.’ Statement of Facts (Doc.
16-1) at 197:10–12. But Mr. Reed offers nothing to indicate how he knows Chief Winter knew about the litigation.
Without personal knowledge, Mr. Reed is merely speculating. Speculation is not enough to raise a genuine dispute
of fact.
163 See id. at 61:7–11. At his deposition, Chief Winter’s counsel asked Mr. Reed, “Other than your participation in
the Shumate lawsuit, after you’ve ceased serving in an official leadership role with the union, are you engaging in
any other conduct on behalf of the union?” Id. at 61:7–10. Mr. Reed said that he was not. Id. at 61:11.
lawsuit filed in 2012 (and one in which Mr. Reed had not actively participated since 2015) does
not mean that he was engaged in “ongoing speech.” Because Mr. Reed did nothing active in the
union (i.e., no protected activity) since, at the latest, March of 2015, we again have a gap of nearly
three years between protected activity and the promotion decisions––a gap that is far too long to
get Mr. Reed past part one of Henry’s prong-three sub-test.
In any event, Mr. Reed also cannot survive the rest of the Henry sub-test. For part two of
the Henry sub-test, “the burden [of production] shifts to [Chief Winter] to show a legitimate,
nondiscriminatory reason for his . . . actions.”164 Chief Winter has done so. That is, Chief Winter
has “introduced evidence which, taken as true, would permit the conclusion that there was a
non[retaliatory] reason for the adverse action[s].”165 With respect to the February 2018 promotion,
Chief Winter says he accepted the recommendation of the Chiefs panel and promoted Mr. Johnson
to Battalion Chief. A rational juror could find that Chief Winter’s decision to follow the vote of
the Chiefs panel was a legitimate, nonretaliatory reason for the February 2018 promotion decision.
With respect to the May 2018 promotion, Chief Winter says he did not promote Mr. Reed because
of the verbal complaints Chief Winter received about Mr. Reed’s belittling and cursing of
subordinates. A rational juror could find that behavior to be a legitimate, nonretaliatory reason for
Chief Winter to deny Mr. Reed the May 2018 promotion. Chief Winter has met his burden of
production.
For part three of the sub-test, “the burden shifts back to [Mr. Reed] to show that [Chief
Winter’s] actions were a pretext for illegal retaliation.”166 To do so, Mr. Reed “must establish
[that] a factual question exists as to whether [Chief Winter’s] reasons were mere pretext, a difficult
164 Henry, 950 F.3d at 1014 (quoting Morris, 512 F.3d at 1019).
165 Cf. St. Mary’s Honor Cent. v. Hicks, 509 U.S. 502, 509 (1993).
166 Henry, 950 F.3d at 1014 (quoting Morris, 512 F.3d at 1019).
burden to prove ‘because evidence of pretext and [retaliation] is viewed in the light of the
employer’s justifications.’”167 Mr. Reed presses no arguments concerning the February 2018
promotion. Mr. Reed presses a few pretext arguments concerning the May 2018 promotion. They
are meritless, and no rational juror could conclude otherwise.
First, Mr. Reed points to the fact that he was the unanimous vote of the Chiefs panel for
the May 2018 promotion.168 He says that this “favorable review” is evidence of pretext.169 The
fatal flaw with this argument is timing. Recall that the Chiefs panel voted for Mr. Reed in January
of 2018. Chief Winter did not receive the complaints about Mr. Reed until months after the vote,
when word got out that Mr. Reed would be getting promoted. So neither Chief Winter nor the
Chiefs panel knew, at the time of this so-called favorable review, that Mr. Reed was belittling
subordinates. “A [favorable] review issued without that knowledge is irrelevant to whether” Chief
Winter actually denied Mr. Reed the May 2018 promotion because of the subsequent
complaints.170
Second, Mr. Reed argues that Chief Winter “conjured” up all of the complaints about Mr.
Reed after Chief Winter denied Mr. Reed the May 2018 promotion.171 This is an argument aimed
at showing that Chief Winter did not have a factual basis for denying Mr. Reed the promotion.
Based on this record, no rational juror could agree with Mr. Reed. It is not genuinely disputed that
167 Id. (quoting Morris, 512 F.3d at 1019).
168 Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 18) at 14.
169 Id. at 15.
170 Smith v. Allen Health Sys., Inc., 302 F.3d 827, 834 (8th Cir. 2002).
171 Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 18) at 15. Mr. Reed’s argument alludes to a June 2018 writing that
Battalion Chief Chad Johnson sent to Chief Winter that said, “Chief, per your request I am writing to provide . . .
a written account of some inappropriate language/behavior made by Captain Reed.” Id. at 16 (citing Ex. 9 to Defs.’
Statement of Facts (Doc. 16-9) at 1). The “per your request” language refers to the undisputed fact that Chief
Winter asked complaining firefighters to put verbal complaints in writing before the May 2018 promotion decision.
No rational juror could conclude otherwise.
Chief Winter, before denying Mr. Reed the May 2018 promotion, received verbal complaints about
Mr. Reed from numerous firefighters.172 And Mr. Reed never seriously challenges the substance
of the complaints (that Mr. Reed belittled and cursed subordinates).173 Moreover, it is not
genuinely disputed that Chief Winter, before denying Mr. Reed the May 2018 promotion, asked
the complaining firefighters to put their complaints in writing.174 The take-away is that, on this
record, a rational juror could only conclude that Chief Winter received verbal complaints about
Mr. Reed’s belittling of subordinates before he denied Mr. Reed the May 2018 promotion. And a
rational juror could only conclude that Chief Winter based his promotion denial on those verbal
complaints. The fact that Chief Winter later received these complaints in written form (as he had
previously requested) after the May 2018 promotion denial is not enough to allow a rational juror
to find that Chief Winter’s proffered reason for the promotion denial was pretext for retaliation.175
Third and finally, Mr. Reed argues that pretext is evident here based on an “escalating
campaign of retaliation.”176 For this argument, Mr. Reed relies on the “two lawsuits in which [Mr.
Reed] has won the relief he sought,” and Mr. Reed’s success in getting then-Chief Castleberry’s
prior restraint rescinded.177 None of this has anything to do with Chief Winter. Recall, Chief
Winter became Fire Chief in 2014––well after the lawsuits were filed (in 2010 and 2012). And
then-Chief Castleberry (not Chief Winter) issued the 2001 memorandum curtailing firefighters’
172 Id. at 15. See also supra note 101.
173 Mr. Reed suggests that he “disagrees with what [the complaining firefighters] said; but there is a difference between
them affirmatively misrepresenting and being subject to an untruthfulness charge vs. cavalierly misremembering
in service of giving their ultimate boss what he wants in writing.” See, e.g., Pl.’s Resp. to Defs.’ Statement of Facts
(Doc. 19) ¶ 69. Whatever this convoluted contention means, it is not enough to raise a genuine dispute about the
substance of the complaints.
174 Id. ¶ 58.
175 That these written complaints were not finalized and put in Mr. Reed’s personnel file by May 24, 2018, is also of
no moment.
176 Pl.’s Resp. to Defs.’ Mot. for Summ. J. (Doc. 16) at 16.
177 Id. at 16.
speech rights.178 Chief Winter was not a defendant in either lawsuit and had nothing to do with
the 2001 memorandum. There’s nothing that could possibly persuade a rational juror that Chief
Winter’s proffered reason for not promoting Mr. Reed in May of 2018 was pretext for this so-
called “escalating campaign of retaliation.”179
II. Mr. Reed’s First Amendment Retaliation Claim Against the City of Conway
Mr. Reed’s claim against the City of Conway cannot survive summary judgment because
(as just explained) no rational juror could conclude that Mr. Reed suffered a constitutional
violation in the first place. “Under Monell, ‘a local government is liable under § 1983 for its
policies that cause constitutional torts.’”180 “It follows that, absent a constitutional violation by a
[city] employee, there can be no § 1983 or Monell liability for the [city].”181
III. Mr. Reed’s Claims under Arkansas Law
The Court has concluded that all of Mr. Reed’s federal claims fail on summary judgment.
Defendants argue that the Court should decline to exercise supplemental jurisdiction over Mr.
Reed’s remaining claims under the 34th Amendment to the Arkansas Constitution and Arkansas
Code Annotated section 11-3-303.182 The Court agrees.
178 In fact, Chief Winter was actually a class member in Shumate and stood to gain from a favorable outcome in that
lawsuit. See Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 19) ¶ 121 (“Anyone employed at the CFD who was not
already maxed out in their pay grade benefitted financially from the Shumate settlement, including Chief Winter.”).
179 Chief Winter also argues that he is entitled to qualified immunity. Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc.
17) at 61–62. “At summary judgment, qualified immunity shields a [government official] from liability in a § 1983
action unless: ‘(1) the facts, viewed in the light most favorable to the plaintiff, demonstrate the deprivation of a
constitutional . . . right; and (2) the right was clearly established at the time of the deprivation.’” Barton v. Taber,
908 F.3d 1119, 1123 (8th Cir. 2018) (quoting Howard v. Kansas City Police Dep’t, 570 F.3d 984, 988 (8th Cir.
2009)). The Court has determined that no rational juror could find that Chief Winter violated Mr. Reed’s
constitutional rights. Thus, Chief Winter is entitled to qualified immunity as well.
180 Kingsley v. Lawrence Cnty., 964 F.3d 690, 703 (8th Cir. 2020) (quoting McMillian v. Monroe Cnty., 520 U.S. 781,
785 (2018)).
181 Id. (quoting Whitney v. City of St. Louis, 887 F.3d 857, 861 (8th Cir. 2018)).
182 Br. in Supp. of Defs.’ Mot. for Summ. J. (Doc. 17) at 66.
“[D]istrict courts may decline to exercise supplemental jurisdiction over a claim” otherwise
falling under the Court’s supplemental jurisdiction for a few reasons.'*? Most relevant here,
pursuant to 28 U.S.C. § 1367(c)(3), the Court can decline to exercise supplemental jurisdiction
over a claim when “the district court has dismissed all claims over which it has original
jurisdiction.” Mr. Reed’s First Amendment retaliation claims (against Chief Winter and the City
of Conway) are the only claims that fall under the Court’s original jurisdiction.'*4 Pursuant to this
Order, those claims are out. The remaining state law claims are not simple mirrors of the federal
claims. They present unique issues of state law that the state courts should have a chance to
resolve. Those claims will be dismissed without prejudice.
CONCLUSION
Based on the foregoing, the Court GRANTS summary judgment to Chief Winter and the
City of Conway on all federal claims against them, and DISMISSES without prejudice all of the
state law claims.
IT IS SO ORDERED this 24th day of August 2022.
+
LEE P. RUDOFSKY
UNITED STATES DISTRICT JUDGE
18 28 U.S.C. § 1367(c).
184 See id. § 1331 (conferring upon district courts “original jurisdiction of all actions arising under the Constitution . .
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