Daly v. City of De Soto, Missouri

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

JAMES A. DALY, )

)

Plaintiff, )

)

v. ) No. 4:22-CV-00259 JAR

)

CITY OF DE SOTO, MISSOURI, and )

JEFF MCCREARY, )

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on Defendants’ motion for summary judgment in this

employment dispute. (Doc. 26). For the following reasons, the motion will be granted.

I. Background

Plaintiff James Daly was a patrol officer for the City of De Soto from March 2019 until he

was terminated in November 2020. Defendants are the City of De Soto, Missouri, and its Chief

of Police, Jeff McCreary.1

Daly, who previously served 20 years as a St. Louis City police officer, was promoted to

Sergeant for the City of De Soto in November 2019, roughly nine months after he was hired. In

early 2020, one of his subordinates, Bethany Zarcone, informed him that another officer was

spreading rumors about her having relations with other members of the department. Zarcone did

not wish to file a formal complaint of sexual harassment for fear of professional repercussions.

1 Absent a clear indication that Daly intended to sue Chief McCreary in his individual capacity, the

Court interprets the complaint to assert claims against this defendant in his official capacity. See Remington

v. Hoopes, 611 Fed. Appx. 883, 885 (8th Cir. 2015). A suit against a public employee in his official capacity

is merely a suit against the public employer. Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th

Cir.1999). Accordingly, the Court will dismiss Daly’s claims against Defendant McCreary.

After multiple rumors circulated, in March 2020, Daly reported the situation to Chief McCreary,

who initiated an investigation to put a stop to it. Although the investigation was inconclusive as

to the source of the rumors, Daly was commended for his attention to the matter. (Doc. 26-4 at

47). Nonetheless, Daly experienced alienation from his colleagues and superiors. Specifically,

Daly alleges that he was shunned for reporting other instances of misconduct by fellow officers;

he was excluded from a lunch outing; he was ignored at social events; and McCreary embarrassed

him in a staff meeting by dispelling a rumor that Daly would succeed him as Chief, stating it was

“not going to happen.” In late summer of 2020, Daly complained to his superior about a hostile

work environment. (Doc. 31-9 at 3). In deposition, Daly acknowledged that there were hostilities

throughout the department stemming from the Zarcone investigation – a “platoon war” – but he

stated that it was more directly pointed at him. (Doc. 26-1 at 78, 57). Daly explained that he was

hired to bring more professionalism to the department but was “met with nothing but resistance

and high school stuff.” (Id. at 77).

Concurrent with these internal tensions, in the spring of 2020, Daly alerted Chief McCreary

that he was embroiled in interpersonal conflicts with his neighbors escalating to the point that one

had sought an order of protection against him. McCreary advised Daly to “stay out of the fray” to

protect his job and his ability to carry a firearm. (Doc. 26-3 at 6). In July 2020, a neighbor’s

attorney posted on Facebook a photo of Daly’s yard in October 2019, decorated as a cemetery for

Halloween, depicting a crucifix with the epitaph “Here lies Michael Brown, a fat ghetto clown.”

In October 2020, this photo was re-posted alongside a photo of Daly identified as a De Soto police

officer. (Doc. 26-6 at 3). This post went viral, causing national outrage, a local protest, and a

public relations crisis for the City. Daly gave inconsistent explanations in attempts to distance

himself from the display. First, he claimed that his wife and her had father erected it and he didn’t

know what it said. He also said that it was assembled and dissembled on Halloween night while

he was working, though the date stamp on the photo refuted this. Daly was placed on

administrative leave, and an internal investigation ensued during which the extent of Daly’s

conflicts and conduct vis-à-vis multiple neighbors came to light. Witness accounts and cell phone

video chronicle in detail numerous instances of Daly’s aggressive behavior, threats, insults, and

intimidation directed at various residents, including children, even prompting one resident to

relocate. Several neighbors were familiar with the Halloween display. Additionally, one of Daly’s

trainees recalled him telling her about the epitaph earlier in the month of October 2019. In light

of the information obtained in the investigation, as memorialized in a 50-page report (Doc. 26-6),

Daly was terminated, effective November 4, 2020, for conduct unbecoming of an officer and for

lying to investigators. (Doc. 26-10).

Daly filed a charge of discrimination with the Missouri Human Rights Commission on

November 23, 2020, and received a right-to-sue letter on December 7, 2021.2 On March 22, 2022,

he filed a complaint in this Court asserting two counts. In Count I, Daly asserts a claim of

retaliation under the Missouri Human Rights Act, Rev. Stat. Mo. § 213.070, alleging that he was

subjected to a hostile work environment after he reported the rumors constituting sexual

harassment involving Officer Zarcone. In Count II, he asserts a claim under 42 U.S.C. § 1983,

alleging that his First Amendment rights were violated when he was terminated as a result of the

Halloween display.

The City moves for summary judgment on both counts. As to Count I, it asserts that Daly’s

2 Daly’s MHRC charge, as amended (Doc. 40), claims that he was harassed, denied equal

pay and opportunity, and even criminally charged in retaliation for reporting the alleged sexual

harassment involving Officer Zarcone. The charge omits entirely the facts and circumstances

described in the City’s internal investigation report and resulting termination letter.

alleged “mistreatment” did not rise to a level constituting retaliation in the form of a hostile work

environment, much less that it was motivated by his advocacy for Zarcone. As to Count II, the

City submits that Daly was terminated for his unbecoming conduct vis-à-vis his neighbors and for

lying to investigators about the Halloween decorations, not for engaging in protected speech.

II. Legal Standard

Summary judgment is proper when “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). Material facts are those “that might affect the outcome of the suit under the governing law,”

and a genuine material fact is one such that “a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Factual disputes

that are irrelevant or unnecessary are not counted. Id. The burden of demonstrating there are no

genuine issues of material fact rests on the moving party, and the Court considers the evidence and

reasonable inferences in the light most favorable to the non-moving party. Allard v. Baldwin, 779

F.3d 768, 771 (8th Cir. 2015). To avoid summary judgment, the non-movant must demonstrate

the existence of specific facts supported by sufficient probative evidence that would permit a

finding in his favor on more than speculation. Donathan v. Oakley Grain, Inc., 861 F.3d 735, 739

(8th Cir. 2017). Where the record as a whole could not lead a rational trier of fact to find for the

non-moving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986).

III. Discussion

A. Retaliation (Count I)

The MHRA’s anti-retaliation provision makes it unlawful for an employer to discriminate

against an employee who has opposed an unlawful employment practice. Mo. Rev. Stat.

§ 213.070. A successful claim of a hostile work environment requires the plaintiff to show: (1) he

is a member of a group protected under the MHRA; (2) he was subjected to unwelcome

harassment; (3) his membership in the protected group was a contributing factor in the harassment;

and (4) a term, condition, or privilege of his employment was affected by the harassment.

McGaughy v. Laclede Gas Co., 604 S.W.3d 730, 748 (Mo. App. E.D. 2020). Harassment affects

a term, condition, or privilege of employment if it is “sufficiently severe or pervasive enough to

alter the conditions of the plaintiff’s employment and create an abusive working environment.” Id.

The harassing conduct must be severe and pervasive not only as viewed subjectively by the

plaintiff but also as viewed objectively by a reasonable person. Id. The Court considers the totality

of the circumstances. Id.

Daly claims that he was subjected to a hostile work environment in retaliation for his report

of sexual harassment involving Officer Zarcone. Specifically, he cites tensions within the

department particularly directed at him, exclusion from a lunch outing, discomfort with co-workers

at social events, McCreary’s statement that Daly would not succeed him as Chief, and the

department’s failure to take action in response to his reports of misconduct. The City moves for

summary judgment on this claim, arguing that the events and circumstances Daly describes lack

the severity that would give rise a jury question on this issue. The Court agrees.

Even accepting Daly’s allegations as true, Chief McCreary had supervisory discretion

whether to act on Daly’s reports of misconduct. While the failure to correct any such conduct may

reflect on the culture of the department, the Court fails to see how such personnel decisions

involving other officers constitute hostility directed at Daly. And while the evidence may depict

a negative culture at the time in question, the record lacks any instance or accumulation of events

targeting Daly that a reasonable person objectively would consider so abusive or severe as to

constitute an actionable hostile work environment. The social slights and tensions Daly describes

are entirely insufficient. Compare e.g., McGaughy, 604 S.W.3d at 749 (describing explicit racial

bias and profane racial slurs and insults directed at an African-American employee); Fuchs v.

Dep’t of Revenue, 447 S.W.3d 727, 733 (Mo. App. W.D. 2014) (describing demeaning comments

and scrutiny toward a disabled employee, including calling her “broken,” limiting bathroom

breaks, and denying leave for doctor visits); Clark v. AT&T Mobility Services, L.L.C., 623 S.W.3d

197, 208 (Mo. App. W.D. 2021) (where a 52-year-old plaintiff was called “too old” and

“uncoachable,” was denied training, and her sales were diverted to younger employees).

Thus, even viewing the record in the light most favorable to Daly, the Court finds the

evidence insufficient to create a genuine issue of material fact as to whether the City subjected

Daly to a hostile work environment in retaliation for his advocacy on behalf of Officer Zarcone.

Rather, the totality of circumstances as described by Daly himself amount to nothing more than

“high school stuff.” As such, the City is entitled to summary judgment on Daly’s claim of

retaliation.

B. First Amendment Violation (Count II)

The First Amendment restrains a government employer from retaliating against a public

employee based on the employee’s speech or associations. Wingate v. Gage County Sch. Dist., No.

34, 528 F.3d 1074, 1080–81 (8th Cir. 2008). To establish a prima facie case of First Amendment

retaliation, a plaintiff must show that (1) he engaged in activity protected by the First Amendment;

(2) the defendant took an adverse employment action against him; and (3) the protected conduct

was a substantial or motivating factor in the defendant’s decision to take the adverse employment

action. Wilson v. Miller, 821 F.3d 963, 967–68 (8th Cir. 2016). Whether the protected activity

was a substantial or motivating factor in an employment decision is a question of fact, but the

sufficiency of the evidence to create an issue of fact for the jury is a question of law. Morris v. City

of Chillicothe, 512 F.3d 1013, 1018 (8th Cir. 2008).

To avoid summary judgment, a plaintiff must either present direct evidence of retaliation

or follow the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). Williams v. Tucker, 857 F.3d 765, 768 (8th Cir. 2017). Direct evidence must be strong

enough to show a specific link between the alleged discriminatory animus and the challenged

decision sufficient to support a finding that an illegitimate criterion actually motivated the

employment decision. Schierhoff v. GlaxoSmithKline Consumer Healthcare, L.P., 444 F.3d 961,

965 (8th Cir. 2006). Under the McDonnell Douglas burden shifting framework, a plaintiff must

set forth a prima facie case in order to shift the burden of producing a legitimate, non-retaliatory

reason for the employment decision to the employer. Williams, 857 F.3d at 768. If the employer

provides a non-retaliatory reason, then the employee must prove that the reason is a pretext for the

retaliation. Id.

Daly claims that the City violated his civil rights under 42 U.S.C. § 1983, and specifically

his First Amendment right to free expression, by terminating him for displaying the Michael

Brown epitaph as a Halloween decoration outside his residence. The City asserts that the evidence

establishes legitimate, non-retaliatory reasons for Daly’s termination such that there is no triable

issue for a jury. Again, the Court agrees. Upon review of the City’s lengthy internal investigation

report revealing Daly’s egregiously unbecoming conduct vis-à-vis his neighbors and dishonest

disclaimers regarding the Halloween display (Doc. 26-6), the Court has no difficulty concluding

as a matter of law that there is no genuine issue of fact for the jury to resolve as to whether the

City’s reasons for termination were legitimate or instead pretexual. The evidence establishes that

Daly was terminated for misconduct and dishonesty, not for engaging in protected speech.

Moreover, even accepting arguendo that Daly was terminated due to the Halloween

display, the evidence shows that the City acted within its authority. A government entity acting in

its role as an employer may restrict speech that has some potential to affect the entity’s operations.

Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). And a public safety entity has an even more

significant interest than typical government employers in regulating the speech activities of its

employees in order to instill public confidence. Anzaldua v. Ne. Ambulance & Fire Prot. Dist.,

793 F.3d 822, 834 (8th Cir. 2015). When the employer shows a sufficient adverse impact from

the employee’s speech, the court undertakes the Pickering balancing test to weigh the speaker’s

interests in free expression against the employer’s interest in efficient operations. Id. at 833

(referring to Pickering v. Bd. of Education, 391 U.S. 563, 568 (1968)). The court considers (1) the

need for harmony in the workplace; (2) whether the government’s responsibilities require a close

working relationship; (3) the time, manner, and 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 duties. Id. at 835. The test is flexible, and the weight to be

given to any factor varies depending on the circumstances of the case. Id.

Applying these factors to the present facts, the Court again has no difficulty concluding

that there is no genuine issue of fact for the jury to resolve. Michael Brown was shot and killed

by a St. Louis area police officer in 2014, sparking a national tempest around race relations and

police conduct. In May 2020, just months before Daly’s Halloween photo went viral, George

Floyd was suffocated to death by a Minneapolis police officer, escalating political strife at the

height of the COVID-19 pandemic. It was in this combustible context that the viral Facebook post

of Daly’s Halloween display, alongside a photo identifying him as a De Soto police officer,

prompted national outrage and media attention and caused a massive disruption to the City and its

police department. Both the City and the department were inundated with citizen complaints,

threats, and “an onslaught from media across the country.” (Doc. 26-3 at 16). A protest and

counter-protest followed, requiring extra staffing and security. (Doc. 26-11). Officers and other

public servants feared for their personal safety and were advised to change their routines. (Doc.

26-12 at 6). The Assistant Chief explained, “With society and the way things had went [sic] in our

country during the summer, there was great concern that this could go viral and potentially cause

a protest or riots.” (Doc. 26-4 at 40). The disruption lasted for several weeks and consumed a

large majority of the City Manager’s work time. (Doc. 26-11 at 37). As he explained, “You are

held to the standard as a police officer. And when not just a minor disruption but a major disruption

to city services and operations occurs due to actions that you’ve taken, then it does have to be

taken into consideration of what effect did this have on the department and the city.” (Doc. 26-2

at 34). On this record, the City’s decision to terminate Daly in an effort to restore order to its

operations and public confidence in its police force was entirely justified. See Anzaluda, 793 F.3d

at 836 (affirming the district court’s conclusion that the defendant fire department was entitled to

qualified immunity). Returning to the McDonnell Douglas framework, the City has produced

ample evidence demonstrating a legitimate, non-retaliatory reason for termination, and Daly has

failed to present evidence permitting a reasonable jury to infer that the City’s given reasons were

a pretext for retaliation.

Thus, even viewing the record in the light most favorable to Daly, the Court finds the

evidence insufficient to create a genuine issue of material fact as to whether the City wrongfully

terminated Daly in retaliation for the Halloween display. Based on the totality of circumstances

and weighing Daly’s right to free expression against the City’s paramount interests in effective

operations, employee safety, and public confidence, the Court finds the City’s personnel decision

well within its discretion as a public employer. As such, the City is entitled to summary judgment

on Daly’s First Amendment claim.

IV. Conclusion

Accordingly,

IT IS HEREBY ORDERED that Defendant Jeff McCreary is DISMISSED as a named

defendant in this matter.

IT IS FURTHER ORDERED that Defendant City of De Soto’s motion for summary

judgment is GRANTED. (Doc. 26).

A separate Judgment shall issue in accordance with this Memorandum and

Order. Dated this 8th day of September 2023.

UNITED STATES DISTRICT JUDGE

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