# Daly v. City of De Soto, Missouri

> District Court, E.D. Missouri · September 8, 2023

URL: https://www.frixlaw.com/law-library/cases/10239222

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** September 8, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10239222

## How later opinions describe it (automated extraction)

- affirming the district court’s conclusion that the defendant fire department was entitled to qualified immunity
- describing demeaning comments and scrutiny toward a disabled employee, including calling her “broken,” limiting bathroom breaks, and denying leave for doctor visits

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10239222. Public record. Not legal advice.