Brotz v. City of Dexter, Missouri

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

JEREMY BROTZ, )

)

Plaintiff, )

)

vs. ) Case No. 1:23-cv-00120-MTS

)

CITY OF DEXTER, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Before the Court is Defendant Trevor Pulley and Defendant City of Dexter’s Motion for

Summary Judgment, seeking “dismiss[al]” of Plaintiff’s Petition “in its entirety.” Doc. [32] at 2.

Plaintiff Jeremy Brotz opposes the Motion, Doc. [37], and the Defendants have filed their Reply

in support, Doc. [38]. For the reasons that follow, the Court will grant Defendants’ Motion for

Summary Judgment in part and deny it in part. The Court grants the Motion with respect to

Plaintiff’s First Amendment retaliation claim because Plaintiff has failed to put forth sufficient

evidence from which a reasonable factfinder could conclude that Defendants’ nondiscriminatory

justification for Plaintiff’s termination—that is, Defendants’ good-faith belief that Plaintiff was

untruthful during an investigatory interview—was pretextual. However, the Court will require the

parties to submit additional summary-judgment briefing to determine whether an entry of summary

judgment is appropriate as to Plaintiff’s claim that the Dexter Police Department policy prohibiting

on-duty Fraternal Order of Police discussions or activities violated Plaintiff’s First Amendment

rights.

I. Statement of Facts1

Until he was fired on April 16, 2020, Plaintiff worked as a police officer for the City of

Dexter, Missouri. Doc. [40] ¶¶ 1, 19. While employed, Plaintiff was a known member of the

Fraternal Order of Police (“FOP”), and he was known to recruit additional members. Doc. [39]

¶¶ 1–2. Sometime in late 2019, Defendant Trevor Pulley, then-Chief of Police, gave a verbal order

to officers within the Dexter Police Department, prohibiting them from discussing the FOP or

conducting FOP business while on duty. Id. ¶ 6; Doc. [40] ¶¶ 4–5. Plaintiff learned of the order

by word-of-mouth and, like other officers, doubted that the order would be enforced. Doc. [37-

3] at 3–4; Doc. [40] ¶ 4, Response. Accordingly, Plaintiff and several other officers continued to

discuss the FOP and encouraged others to join the organization while on duty. Doc. [39] ¶ 5; Doc.

[37-3] at 5–6. Plaintiff sought to establish an FOP lodge within the department and was close to

recruiting the required number of members. Doc. [39] ¶¶ 3–4. There is no evidence that FOP

discussions or business interfered with police department operations. Doc. [39] ¶ 10.

While on patrol in April 2020, Plaintiff stopped and discussed the topic of unionization at

the residence of Doug Cox, an employee in the City’s Street Department. Doc. [40] ¶ 7, Response.

The record does not reflect how long this interaction lasted, but the two men apparently discussed

Plaintiff’s interest in forming a union and the fact that City employees had undertaken an

unsuccessful unionization effort in the past. Doc. [34-4] at 2. Defendant Pulley was notified of

this exchange and asked Captain Hank Trout to conduct an internal investigation to determine

whether Plaintiff had violated his FOP-related order. Doc. [40] ¶¶ 8–9. As part of the

1 Unless otherwise stated, the following facts are properly supported and undisputed pursuant to Rule 56 of the Federal

Rules of Civil Procedure and Rule 4.01(E) of the Eastern District of Missouri Local Rules. If genuinely disputed, the

facts are viewed in a light most favorable to Plaintiff Brotz.

investigation, Captain Trout interviewed Doug Cox and learned about the on-duty, union-related

conversation that had transpired. Doc. [34-4] at 2.

Plaintiff was placed on administrative leave with pay during the investigation, Doc. [34-7],

and he sat for an investigatory interview on or about April 09, 2020, Doc. [34-5]. Plaintiff

acknowledged that he was under orders to “provide complete and truthful answers to the

investigator” and that, “should [he] fail to answer questions or refuse to provide complete and

truthful answers,” he could be subject to disciplinary action up to and including dismissal. Doc.

[40] ¶ 11. During the interview, Captain Trout asked Plaintiff if he had spoken to anyone outside

of the police department, including anyone else in the city working for a different department,

about unionizing. Doc. [34-2] at 5; Doc. [40] ¶ 14; Doc. [34-4] at 4. Plaintiff denied doing so.2

Doc. [34-2] at 5. Captain Trout concluded that this was a “false or untrue statement” in his

investigation report. Doc. [34-4] at 4; Doc. [40] ¶ 15. Accordingly, in addition to finding that

Plaintiff was insubordinate for violating Defendant Pulley’s order, Captain Trout found that

Plaintiff had violated the department’s standards of conduct with respect to untruthfulness and

perjury.3 Doc. [34-4] at 4; Doc. [40] ¶ 16. By the time Plaintiff was placed under investigation,

Defendant Pulley had decided that he was going to discipline Plaintiff in some fashion for violating

his order. Doc. [39] ¶ 13. But after Defendant Pulley learned from Captain Trout that Plaintiff

had been untruthful during his investigatory interview, Doc. [37-4] at 8; Doc. [34-1] at 9; Doc.

[34-6] (showing an interview date of April 09, 2020), Defendant Pulley made his recommendation

2 At his deposition, Plaintiff admitted that his denial was inaccurate. Doc. [34-2] at 5.

3 Captain Trout also determined that Plaintiff gave untrue answers when he denied attending a certain department

supervisor meeting at which Defendant Pulley gave his FOP-related order. Doc. [37-6] at 4. Plaintiff asserts that his

interview answers on this topic were truthful because he did not in fact attend the meeting in question. See, e.g., Doc.

[37-3] at 3 (“I was not in the meeting.”).

to the Board of Alderman that they should terminate Plaintiff’s employment. Doc. [34-1] at 6;

Doc. [34-7] (recommending Plaintiff’s termination on April 16, 2020).

During the Board’s April 16, 2020, Executive Session, Defendant Pulley addressed the

Board stating that the police department had been investigating Plaintiff for a policy violation, and

in his corresponding interview, “[Plaintiff] was untruthful with several of his answers.” Doc.

[34-7]. Defendant Pulley explained that he was seeking Plaintiff’s termination because he had

“be[en] untruthful during an internal investigation.” Id. The City Attorney added that such

misconduct “brings up issues of [Plaintiff] being an unreliable source during any police matter that

he would be involved in.” Id.; Doc. [40] ¶ 19. Following these remarks, the City Mayor adopted

Defendant Pulley’s recommendation and placed it before the Board. Doc. [40] ¶ 18; Doc. [34-7].

The Board unanimously voted to terminate Plaintiff’s employment. Doc. [34-7].

II. Procedural History

Plaintiff originally filed suit in the Circuit Court of Stoddard County, Missouri, asserting

one count of Wrongful Termination against the City of Dexter and Defendant Pulley in both his

official and individual capacities. Doc. [5]. In his Petition, Plaintiff alleges violations of his rights

to free association, due process, “and other constitutional rights owed . . . by the First, Fourth, and

Fourteenth Amendments of the United States Constitution, and Title I, §§ 9, 10 of the Missouri

Constitution.” Doc. [5] ¶¶ 17–18. He asserts that his “wrongful termination was an adverse

employment action . . . [that] violated [his] rights under the Constitution of the United States and

the Constitution of the State of Missouri.” Id. ¶ 21. Plaintiff also contends that the “Police

Department Policy which limits the free association of individuals such as Plaintiff is unduly

restrictive of the constitutional right of freedom of association” and that the policy therefore

“represents a constitutional violation resulting from an official municipal policy.” Id. ¶¶ 26–27.

For relief, Plaintiff seeks reinstatement, back pay, punitive damages against Defendant Pulley,

attorney’s fees and costs, and “[s]uch other relief as this Court deems just and proper.” Id. at 5.

On July 12, 2023, Defendants removed the action to this Court pursuant to its federal question

jurisdiction. See Doc. [1] ¶ 4; see also 28 U.S.C. §§ 1331, 1441(a).

Defendants now move for summary judgment on all of Plaintiff’s claims under Federal

Rule of Civil Procedure 56. Doc. [32]. Characterizing Plaintiff’s case as one “expressly for

‘wrongful termination,’” Defendants assert that the legality of Defendant Pulley’s verbal order “is

irrelevant to this case.”4 Doc. [33] at 7. With respect to Plaintiff’s termination, Defendants argue

Plaintiff’s claims against Defendant Pulley fail because he was not the decisionmaker who in fact

terminated Plaintiff’s employment, Doc. [32] ¶ 3, Defendant Pulley is entitled to qualified

immunity, id. ¶ 4, and any official-capacity claims against Defendant Pulley are redundant to those

asserted against Defendant City of Dexter, id. ¶ 5. At bottom, Defendants contend that they are

entitled to summary judgment because Plaintiff was not terminated due to his association with the

FOP; rather, his termination resulted from Plaintiff’s untruthfulness exhibited during his internal-

investigation interview. Id. ¶ 2; Doc. [33] at 9.

In response, Plaintiff argues that Defendant Pulley is liable because he engaged in First

Amendment retaliation against Plaintiff, thereby violating Plaintiff’s clearly established

constitutional rights. Doc. [37] at 7. More specifically, Plaintiff argues that he has asserted a valid

claim of First Amendment retaliation because (1) Plaintiff engaged in constitutionally protected

activity with respect to the FOP, id. at 7–9, (2) his interest in that protected activity outweighed

4 Defendants reemphasize this position in their Reply. Compare Doc. [38] at 4 (“The only relevant issue is why [the

City] terminated Plaintiff . . . [and] whether the Orders are lawful is irrelevant to his case and the Court need not rule

on their legality.”), with id. at 11 (asserting that the issues of Defendant Pulley’s verbal order and Plaintiff’s

termination “are completely different and only one, the City’s termination of Plaintiff’s employment, is relevant to

[Defendants’] Motion”).

the police department’s interest in governmental efficiency, id. at 10–11, and (3) Defendants’

proffered, non-discriminatory reason for Plaintiff’s termination was a pretext for unlawful

retaliation, id. at 12–13. Plaintiff argues that the City of Dexter is liable because “Defendant

Pulley created policy within the Dexter [Police Department],” and therefore, his “actions constitute

official and unconstitutional policies of the City of Dexter and the City can be held liable,”

specifically with respect to “order[ing] the violation of Plaintiff’s rights” and “convincing the

Board of Alderman to fire Plaintiff.” Doc. [37] at 14. 5

III. Legal Standard

Federal Rule of Civil Procedure 56(a) provides that a “court shall grant summary judgment

if the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” The movant bears the initial burden of “informing the

district court of the basis for its motion and must identify those portions of the record which it

believes demonstrates the absence of a genuine issue of material fact.” Torgerson v. City of

Rochester, 643 F. 3d 1031, 1042 (8th Cir. 2011) (en banc) (internal quotations omitted) (citation

modified). The movant may satisfy its burden in one of two ways; that is, the movant may either

produce evidence negating an essential element of the non-moving party’s case, or it may show

the non-moving party does not have enough evidence of an essential element of its claims to carry

the ultimate burden of persuasion at trial. Bedford v. Doe, 880 F.3d 993, 996 (8th Cir. 2018);

accord Fed. R. Civ. P. 56(c)(1).

5 Certain allegations in Plaintiff’s state-court Petition relate to a potential due process claim. See, e.g., Doc. [5] ¶ 20

(alleging that Plaintiff “has a property interest in continued employment”). To the extent Plaintiff originally intended

to assert one, he “failed to make any separate arguments regarding a claim [for violation of due process] in [his]

summary judgment resistance briefs.” Paskert v. Kemna-Asa Auto Plaza, Inc., 950 F.3d 535, 540 (8th Cir. 2020).

Indeed, Plaintiff “did not oppose the granting of summary judgment on [those] grounds.” Id. Accordingly, the Court

concludes that there are no due process claims before it. The Court further “consider[s] [Plaintiff’s] claims under state

law together with the federal claims” because “the relevant Missouri constitutional provisions are coterminous with

their federal counterparts.” Brown v. Precythe, 46 F.4th 879, 885 n.3 (8th Cir. 2022) (en banc).

Once the movant has established a right to judgment as a matter of law, the non-movant

must demonstrate that one or more of the material facts asserted by the movant as not in dispute

is, in fact, genuinely disputed. Bedford v. Doe, 880 F.3d at 97. “Mere allegations, unsupported

by specific facts or evidence beyond the nonmoving party’s own conclusions, are insufficient to

withstand a motion for summary judgment.” Thomas v. Corwin, 483 F.3d 516, 526–27 (8th Cir.

2007). Mere “metaphysical doubt as to the material facts” is not enough; rather, the non-movant

“must come forward with specific facts showing that there is a genuine issue for trial.” Torgerson,

643 F.3d at 1042. The Court views any factual disputes in the light most favorable to the

nonmoving party and draws reasonable inferences in the non-movant’s favor. Scott v. Harris, 550

U.S. 372, 380 (2007). When ruling on summary judgment, “credibility determinations, the

weighing of the evidence, and the drawing of legitimate inferences from the facts are jury

functions, not those of a judge.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

IV. Discussion

Notwithstanding the breadth of protections that the First Amendment provides to the public

at large, the government has a “freer hand” when it regulates the First Amendment conduct of

public employees as an employer. See Waters v. Churchill, 511 U.S. 661, 671 (1994) (plurality

opinion) (“[T]he government as employer indeed has far broader powers than does the government

as sovereign.”). Still, the First Amendment is violated when, for example, a public employee is

retaliated against for engaging in constitutionally protected speech or associational conduct. See

Davison v. City of Minneapolis, 490 F.3d 648, 654–55 (8th Cir. 2007). To that end, § 1983

provides a federal cause of action against officials acting under color of state law to remedy

damages caused by violations of federal constitutional or statutory rights. 42 U.S.C. § 1983.

In response, an individual official can assert the defense of qualified immunity, which

provides immunity from suit, Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), when the official’s

“conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known,” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, an

individual official is entitled to qualified immunity unless, “(1) the facts, viewed in the light most

favorable to the plaintiff, demonstrate the deprivation of a constitutional or statutory right; and (2)

the right was clearly established at the time of the deprivation.” Howard v. Kan. City Police Dep’t,

570 F.3d 984, 988 (8th Cir. 2009). Municipalities can be found liable under § 1983 too, but only

to the extent “the municipality itself causes the constitutional violation at issue.” Rusness v. Becker

County, 31 F.4th 606, 617 (8th Cir. 2022) (quoting City of Canton v. Harris, 489, U.S. 378, 385

(1989)). In other words, municipal liability under § 1983 cannot be premised on a theory of

vicarious liability such as respondeat superior. Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S.

658, 691 (1978).

A. Defendants are entitled to summary judgment with respect to Plaintiff’s First

Amendment retaliation claim.

1. Defendant Pulley can be held liable for recommending Plaintiff’s termination to

the extent his recommendation constitutes unlawful First Amendment retaliation.

The Court begins with Defendants’ threshold argument that Defendant Pulley cannot be

held liable for damages stemming from Plaintiff’s termination because, no matter Defendant

Pulley’s alleged misconduct, he was not the ultimate decisionmaker who effectuated Plaintiff’s

termination. Doc. [33] at 13. This argument does not have merit. True, an official’s liability in a

§ 1983 case “requires a causal link to, and direct responsibility for, the deprivation of rights,”

Clemmons v. Armontrout, 477 F.3d 962, 967 (8th Cir. 2007), that is, “an official is only liable for

his own misconduct,” Z.J. by & through Jones v. Kan. City Bd. of Police Comm’rs, 931 F.3d 672,

688 (8th Cir. 2019). But the Court of Appeals for the Eighth Circuit has explained that there is

sufficient causation when an individual sets “in motion a series of acts by others which the actor

knows or reasonably should know would cause others to inflict constitutional injuries on third

parties.” Darnell v. Ford, 903 F.2d 556, 562 (8th Cir. 1990) (citation omitted).

Further, “a government actor may not retaliate against an individual’s protected First

Amendment activity by exerting influence over [his] employer to cause an adverse employment

action.” McNeally v. HomeTown Bank, 0:21-cv-2614, 2022 WL 2220922, at *9 (D. Minn. June

21, 2022) (collecting cases). Here, it is undisputed that the issue of Plaintiff’s termination was

placed before the Board of Alderman based solely on the recommendation of Defendant Pulley.

Doc. [40] ¶ 19. Therefore, Defendant Pulley can be held individually liable for recommending

Plaintiff’s termination if Defendant Pulley made his recommendation in retaliation against

Plaintiff’s protected First Amendment activity.6 The Court therefore proceeds to the merits of

Plaintiff’s First Amendment retaliation claim.

2. Plaintiff has failed to put forth sufficient evidence establishing a triable question of

fact as to his claim of First Amendment retaliation.

To prevail on his First Amendment retaliation claim, Plaintiff must prove “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.” Davison, 490 F.3d at

655. The third, causation-related element “is a question of fact, but the sufficiency of the evidence

6 However, Defendants are correct that Plaintiff’s claims against Defendant Pulley in his official capacity must fail

because they are functionally equivalent to those asserted against the City of Dexter. See, e.g., Marshall v. City of

Arnold, 4:23-cv-00807-MTS, 2024 WL 1217437, at *3 (E.D. Mo. March 21, 2024) (dismissing official capacity

claims as “duplicative of Plaintiff’s claims against the City”). The Court will therefore grant summary judgment to

Defendant Pulley on any claims asserted against him in his official capacity.

to create an issue of fact for the jury is solely a question of law.” Morris v. City of Chillicothe,

512 F.3d 1013, 1019 (8th Cir. 2008). In the Eighth Circuit, courts “analyze First Amendment

employment retaliation claims with a three-step burden-shifting test,” commonly referred to as the

McDonnell Douglas framework.7 Id. at 1018. Under this framework, a plaintiff-employee must

“show that he suffered an adverse employment action that was causally connected to his

participation in a protected activity.” Id. at 1019. If the plaintiff is successful, “the burden shifts

to the employer to show a legitimate, nondiscriminatory reason for his or her actions.” Id. If the

employer does so, “the burden shifts back to the employee to show that the employer’s actions

were a pretext for illegal retaliation.”8 Id.

Here, Defendants do not dispute that Plaintiff engaged in protected First Amendment

conduct when discussing and conducting FOP business while on duty. Compare Roberts v. Van

Buren Pub. Schs., 773 F.2d 949, 957 (8th Cir. 1985) (explaining that a public employee’s First

Amendment right to participate in union activities “may be overridden by the government’s

interest as an employer in efficiency” when, for example, “the employee engages in the allegedly

7 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). But see Ames v. Ohio Dep't of Youth Servs., 145 S. Ct.

1540, 1553 (2025) (Thomas, J., joined by Gorsuch, J., concurring) (opining that the McDonnell Douglas framework

“is incompatible with the summary-judgment standard”); id. at 1545 n.2 (principal opinion) (assuming without

deciding that the McDonnell Douglas framework applies at the summary-judgment stage of litigation).

8 Both parties apply this three-part framework in their summary-judgment briefing. Compare Doc. [33] at 11, with

Doc. [37] at 12. The Court agrees that this framework applies here because Plaintiff has not put forth “evidence that

directly reflects the use of an illegitimate criterion in [the decision to terminate Plaintiff’s employment].” Graning v.

Sherburne County, 172 F.3d 611, 615 n.3 (8th Cir. 1999); see Davison, 490 F.3d at 663–64 (Colloton, J., concurring

in the judgment in part and dissenting in part) (explaining that the Mt. Healthy mixed-motive framework—placing the

burden of proof on the defendant employer “to show as a matter of law that he would have made the same decision

absent the plaintiff’s protected activity”—is used “only where a plaintiff produces ‘direct evidence,’” that is, “evidence

showing a specific link between the alleged discriminatory animus and the challenged decision”); but see Wagner v.

Jones, 664 F.3d 259, 270 (8th Cir. 2011) (explaining that the McDonnell Douglas framework applies in Title VII

cases, but the Mt. Healthy framework applies in First Amendment retaliation cases). Although the Eighth Circuit has

given “inconsistent guidance” in this area, Mahn v. Jefferson County, 891 F.3d 1093, 1097 (8th Cir. 2018), the Court

follows the earlier Graning approach, see Junk v. Terminix Int’l Co., 628 F.3d 439, 446 (8th Cir. 2010) (explaining

that “the better practice normally [is] to follow the earliest opinion, as it should have controlled the subsequent panels

that created the conflict.”).

protected activities on the job, interfering with his duties” (citation modified)), with Doc. [39] ¶ 10

(admitting, for purposes of their instant Motion, that there is no evidence that FOP discussions or

business interfered with Dexter Police Department operations). Moreover, it is undisputed that

Plaintiff suffered an adverse employment action when he was fired from his position as a police

officer. See Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 999 (8th Cir. 2011) (“Unquestionably,

termination is an adverse employment action.”). Therefore, the Court proceeds to the third element

of Plaintiff’s First Amendment retaliation claim, analyzed under the “three-step burden-shifting

test” outlined above. Morris, 512 F.3d at 1018.

a. Plaintiff has put forth sufficient prima facie evidence that his termination was

causally related to his FOP activity.

Defendants first argue that Plaintiff’s claim fails at the first step because he has failed to

show any causal nexus between his FOP-related activity and his termination. According to

Defendants, “the uncontroverted evidence is that [Plaintiff’s] termination was . . . [due to] Plaintiff

giving false/untruthful statements in his internal investigation interview.” Doc. [33] at 9. But

Plaintiff directs the Court to undisputed facts that Defendant Pulley placed Plaintiff under an

internal investigation in response to being told that Plaintiff conducted FOP activities while on

duty,9 Doc. [39] ¶ 8, and Defendant Pulley was prepared to discipline Plaintiff in some fashion for

undertaking those activities, id. ¶ 13. Moreover, Plaintiff argues that the evidence supports an

9 On its own, an employee’s placement under internal investigation while on administrative leave with pay does not

constitute an adverse employment action for purposes of a retaliation claim. See Pulczinski v. Trinity Structural

Towers, Inc., 691 F.3d 996, 1008 (8th Cir. 2012) (explaining, in the context of a claim of Family and Medical Leave

Act retaliation, that “[p]lacement on paid administrative leave pending an investigation does not meet th[e] standard”

of an adverse employment action); see also Altonen v. City of Minneapolis, 487 F.3d 554, 560 (8th Cir. 2007)

(“Internal investigations into employee complaints are not adverse employment actions when they do not result in any

change in form or condition to the employee’s employment.”). Instead, material alterations in employment that occur

as a result of such an investigation are actionable. See Ware v. Billington, 344 F. Supp. 2d 63, 76 (D.D.C. 2004)

(“[A]lthough the discipline imposed as a result of an investigation may have a sufficiently adverse effect on plaintiff’s

employment to be actionable, the mere initiation of the investigation does not.”).

inference of retaliation because Plaintiff was terminated just as he was reaching the number of

recruits necessary to establish an FOP lodge in the department, and since his termination, all FOP

activity in the department has ceased. Id. ¶¶ 4, 14; Doc. [37] at 12. Taken together, the Court

concludes that Plaintiff has put forth sufficient, prima facie evidence that his termination was

“causally connected to his participation in a protected activity.” Morris, 512 F.3d at 1019; see

also Brown v. City of Jacksonville, 711 F.3d 883, 893 (8th Cir. 2013) (finding “sufficient evidence

of a causal link between [plaintiff’s] protected activity and her materially adverse employment

action,” in the context of a Title VII case, where plaintiff’s termination resulted from a workplace

investigation brought about because of her protected conduct).

b. Defendants have put forth a legitimate, nondiscriminatory justification for

Plaintiff’s termination.

The Court thus proceeds to the second step and considers whether Defendants have put

forth “a legitimate, nondiscriminatory reason” for Plaintiff’s termination. Morris, 512 F.3d at

1019. Defendants’ proffered reason is the untruthfulness that Plaintiff reportedly exhibited during

his internal-investigation interview, especially when he wrongly denied speaking to anyone

outside of the police department about unionizing.10 Doc. [33] at 9; Doc. [34-7] (recommending

termination “for the reason of being untruthful during an internal investigation”). Such misconduct

has special significance where police officers are concerned because they are often called as

witnesses for the prosecution in criminal cases. See Nagel v. City of Jamestown, 952 F.3d 923,

929 n.5 (8th Cir. 2020) (“[T]he prosecution must disclose in a criminal case evidence that would

10 Plaintiff’s denial that he attended a certain police department meeting also contributed to the termination decision.

Compare Doc. [34-4] at 4 (concluding that Plaintiff “made false or untrue statements . . . by not disclosing that he had

attended a supervisors’ meeting”), with Doc. [34-7] (reflecting Defendant Pulley’s belief that Plaintiff “was untruthful

with several of his answers” in his internal investigation). It is of no moment that the parties dispute whether Plaintiff

in fact attended this meeting—and thus, whether Plaintiff actually lied to Captain Trout when he denied being there—

because the relevant question “is not whether the employee actually engaged in the conduct for which he was

terminated, but whether the employer in good faith believed that the employee was guilty of the conduct justifying

discharge.” Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1002 (8th Cir. 2012).

impeach its witnesses, such as a testifying police officer’s prior untruthfulness.” (citing Giglio v.

United States, 405 U.S. 150 (1972))).

But even as a general matter, “an employer’s belief that the employee committed

misconduct is a legitimate, non-discriminatory reason for adverse action.” Richey v. City of

Independence, 540 F.3d 779, 784 (8th Cir. 2008); see also Hanson v. Mental Health Res., Inc.,

948 F. Supp. 2d 1034, 1045 (D. Minn. 2013) (“Employee dishonesty is a legitimate non-

discriminatory reason for terminating an employee.” (citing Seeger v. Cincinnati Bell Tel. Co., 681

F.3d 274, 284 (6th Cir. 2012))); After all, “[a]n employee who engages in protected activity is

not insulated from adverse action for violating workplace rules.” Richey, 540 F.3d at 784. The

adverse action must be based on the employer’s “good faith belief that the employee engaged in

misconduct.” Id. Thus, “[t]he relevant inquiry is whether the employer believed the employee

was guilty of the conduct justifying discharge.” Id. “Admission of misconduct provides sufficient

foundation for an employer’s good faith belief that an employee has engaged in misconduct.”

Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989).

Here, it is undisputed that, at the time of his investigation interview, Plaintiff signed a

document that required him to give “complete and truthful answers” to the questions asked of him

during his interview and warned that failure to do so could result in disciplinary action up to and

including termination. Doc. [34-5]. Further, no one disputes that, during the corresponding

internal investigation, Captain Trout interviewed several disinterested witnesses and reviewed

documentary evidence from which he concluded that Plaintiff answered several interview

questions untruthfully. See generally Doc. [34-4] (describing the review of timesheets and a

social-media message as well as summaries of several interviews); Doc. 40 ¶¶ 15–16 (“[It is

u]ncontroverted that Captain Trout made those conclusions . . . .”). Indeed, Plaintiff has since

admitted that he wrongly denied discussing unionization with at least one individual outside of the

police department during his interview.11 Doc. [40] ¶ 13; Doc. [34-2] at 5. Plaintiff’s admission—

in addition to the evidence identified in Captain Trout’s investigation report—establishes “some

independent corroboration” supporting Defendants’ good faith belief that Plaintiff engaged in

misconduct.12 Richey, 540 F.3d at 785. Therefore, “to avoid summary judgment on his First

Amendment retaliation claim, [Plaintiff] must present additional evidence that [Defendants’]

explanation is pretextual, and that [Defendant Pulley] really acted because of [Plaintiff’s] protected

activity.” Id.

c. Plaintiff has failed to put forth sufficient evidence to create a triable question of fact

of whether Defendants’ justification for his termination was pretextual.

A showing of pretext requires “sufficient evidence to demonstrate both that the employer’s

articulated reason for the adverse employment action was false and that discrimination [or

retaliation] was the real reason.” Winters v. Deere, 63 F.4th 685, 690 (8th Cir. 2023). This is often

accomplished by showing that the employer “(1) failed to follow its own policies, (2) treated

similarly-situated employees in a disparate manner, or (3) shifted its explanation of the

employment decision.” Lake v. Yellow Transp., Inc., 596 F.3d 871, 874 (8th Cir. 2010). In any

event, “showing that a defendant’s justification for firing is unworthy of credence is harder to

overcome than the prima facie case because evidence of pretext is viewed in the light of the

employer’s justification.” Morris, 512 F.3d at 1019.

11 Plaintiff’s attempt to characterize his misrepresentation, see Misrepresentation, Black’s Law Dictionary (12th ed.

2024) (“[A] materially incorrect, unfair or false statement; an assertion that does not accord with the facts.”), as an

innocent misrecollection made “with[out] the benefit of reviewing information” is unavailing. Doc. [37-1] ¶ 13. As

mentioned above, the relevant inquiry is not whether Plaintiff was in fact untruthful during his interview, “but whether

the employer in good faith believed that the employee was guilty of the conduct.” Said v. Mayo Clinic, 44 F.4th 1142,

1151 (8th Cir. 2022).

12 In addition, Defendants’ “finding that [Plaintiff] had been dishonest, even if wrong, made him a Giglio-impaired

officer because prosecutors would now be required to disclose the finding any time he testified.” Nagel, 952 F.3d at

931.

To establish pretext, Plaintiff directs the Court to the following facts: (1) that “Plaintiff was

not the only officer . . . who was discussing the FOP while on duty, Doc. [37] at 12; (2) that

Plaintiff was close to recruiting the required number of FOP members to open a lodge in the

department, Doc. [39] ¶ 4, and after his termination, any conversation and recruitment activity

concerning the FOP stopped, id. ¶ 14; and (3) “Defendant Pulley had predetermined that Plaintiff

was going to be disciplined for talking to Doug Cox about the FOP,” Doc. [37] at 13; Doc. [39]

¶ 13. In addition, Plaintiff asserts that he was not in fact untruthful during his investigation

interview. According to Plaintiff, the question at issue—whether he spoke to anyone outside of

the police department about unionizing—was vaguely worded and “did not trigger in Plaintiff’s

mind a memory” of the conversation he had with Doug Cox. Doc. [37] at 13.

As an initial matter, Plaintiff has not put forth evidence that Defendants either failed to

follow their established policies or that their explanation for his termination has shifted over time.

See Lake, 596 F.3d at 874. With respect to the evidence that Plaintiff does cite, the Court must

view it in light of Defendants’ justification for his termination—that is, the finding that Plaintiff

was untruthful during his internal investigation interview—and here, Plaintiff has admitted to

making a false statement during those proceedings. Doc. [34-2] at 5. What is more, failing to

“provide complete and truthful answers to questions” asked of him during his interview subjected

him to the risk of “disciplinary action . . . including but not limited to, dismissal from [his]

employment.” Doc. [34-5]. Plaintiff therefore has failed to show that Defendants’ “articulated

reason for the adverse employment action was false.” Winters, 63 F.4th at 690; see also, e.g.,

Crawford v. Dep’t of Investigation, 1:05-cv-05368-KMW, 2007 WL 2850512, at *6 (S.D.N.Y.

Oct. 1, 2007) (finding no pretext where plaintiff’s “own deposition testimony” confirmed

defendant’s asserted reason for his termination).

Still, a plaintiff can establish pretext by putting forth evidence that his or her employer

treated employees who engaged in similar misconduct more leniently. See Schaffhauser v. United

Parcel Serv., Inc., 794 F.3d 899, 904–05 (8th Cir. 2015). Plaintiff attempts to demonstrate

disparate treatment by establishing that he alone was singled out for discipline even though other

officers violated Defendant Pulley’s order and discussed the FOP while on duty. Compare Doc.

[39] ¶ 5, with id. ¶ 7, and id. ¶ 9. Plaintiff’s argument is unavailing because he does not show that

these purported comparators “were similarly situated in all relevant respects.” Walker v. First

Care Mgmt. Grp., 27 F.4th 600, 605 (8th Cir. 2022). This includes showing that the comparators

were treated more leniently despite “engag[ing] in the same conduct without any mitigating or

distinguishing characteristics.” Johnson v. Securitas Sec. Servs. USA, Inc., 769 F.3d 605, 613 (8th

Cir. 2015) (en banc) (finding no pretext where plaintiff failed to put forth a comparator who

engaged in the same misconduct that served as the basis for plaintiff’s termination). Because

Plaintiff puts forth no evidence that other Dexter Police Department officers were treated less

harshly after they made, or were perceived to have made, false statements during an investigatory

interview, he has failed to put forth sufficient evidence from which a reasonable jury could

conclude that Plaintiff’s FOP activity “really motivated the [termination] decision” and that

Plaintiff’s untruthfulness during his interview “was just an excuse for the decision to fire [him].”

Huber v. Westar Foods, Inc., 139 F.4th 615, 625 (8th Cir. 2025) (en banc).

The rest of Plaintiff’s pretext-directed evidence is prima facie evidence tending to show “a

causal connection between [Plaintiff’s] protected activity and the adverse employment action.”

Graning, 172 F.3d at 615. But under the McDonnell Douglas framework, “[p]roof of pretext,

coupled with a strong prima facie case, may suffice to create a triable question of fact.” Torgerson,

643 F.3d at 1046 (emphasis added). Therefore, because Plaintiff has failed to present sufficient

evidence from which a reasonable fact finder could conclude that Defendants’ proffered reason

for his termination was pretext for unlawful retaliation, Plaintiff has failed to carry his summary-

judgment burden, and the Court will grant Defendants’ Motion with respect to Plaintiff’s First

Amendment retaliation claim.

B. The Court will require supplemental briefing to determine whether summary

judgment is appropriate as to Plaintiff’s claim that Defendant Pulley’s departmental

order unconstitutionally violated his First Amendment Rights.

A fair read of Plaintiff’s state-court Petition shows that he has asserted a claim against

Defendants for establishing an unconstitutional policy that violated Plaintiff’s First Amendment

rights. See Doc. [5] ¶¶ 6, 10–11, 19, 26–27. It is axiomatic that the “function of a complaint

under the Federal Rules of Civil Procedure is to give the opposing party fair notice of the nature

and basis or grounds of a claim.” Topichan v. JP Morgan Chase Bank, N.A., 760 F.3d 843, 848

(8th Cir. 2014) (internal quotations omitted). “The well-pleaded facts alleged in the complaint,

not the legal theories of recovery or legal conclusions identified therein, must be viewed to

determine whether the pleading party . . . stated a claim.” Id.; see Charles E. Clark, Pleading under

the Federal Rules, 12 Wyo. L.J. 177, 191-92 (1958) (explaining that pleadings should “just say

what plaintiff and defendant did,” and if a party does “give [legal] labels” or includes “a little

theory” in his pleading, it is “not binding” but rather just “a way of being helpful”).

Where, as here, a plaintiff asserts that a municipal policy itself violates the constitution,

“no evidence is needed other than a statement of the municipal policy and its exercise.” Szabla v.

City of Brooklyn Park, 486 F.3d 385, 390 (8th Cir. 2007) (en banc) (citing Oklahoma City v. Tuttle,

471 U.S. 808, 822–23 (1997) (plurality opinion)). In addition, “[g]overnmental officials may . . .

be held personally liable in damages for constitutional infringements resulting from their

establishment of unconstitutional policies.” Haynesworth v. Miller, 820 F.2d 1245, 1263 (D.C.

Cir. 1987). Because Plaintiff’s Petition alleges the issuance of a municipal policy that violated his

First Amendment rights, his Petition states a plausible claim for damages caused by the

constitutional violation itself.13 See Doc. [5] ¶¶ 6, 10–11, 19, 26–27; id. at 5 (seeking “[s]uch other

relief as this Court deems just and proper”); cf. Memphis Cmty. Sch. Dist. v. Statura, 477 U.S. 299,

307, 308 n.11 (1986) (explaining that “the basic purpose of § 1983 damages is to compensate

persons for injuries that are caused by the deprivation of constitutional rights” and “nominal

damages . . . are the appropriate means of vindicating rights whose deprivation has not caused

actual, provable injury” (internal quotations omitted)). Therefore, contrary to Defendants’

repeated assertions, the constitutionality of Defendant Pulley’s order is relevant to this case.

A First Amendment violation occurs when a municipal policy unreasonably burdens the

First Amendment rights of public employees. See Int’l Ass’n of Firefighters, Local No. 3808 v.

Kansas City, 220 F.3d 969, 975 (8th Cir. 2000). When courts in the Eighth Circuit review such

policies, they apply “an intermediate level of scrutiny” and determine whether “the government’s

determination . . . [to prohibit the protected conduct] is reasonable.” Id. at 973 (explaining that the

considerations of “[t]he Pickering balance” should inform the analysis).14 “When the government

determines that its interests in the efficient and effective provision of public services require

infringement of its employees’ associational rights, [courts] cannot simply defer to the

government’s decision,” but they must “examine its justification, and considering the competing

interests, determine whether the government’s determination is reasonable.” Id. at 974. True,

“police departments . . . are given more latitude in their decisions regarding discipline and

13 Because the Court will grant summary judgment for Defendants on Plaintiff’s First Amendment retaliation claim,

any damages that stem from his termination are unavailable because, as the Court found above, they were not caused

by a constitutional violation.

14 Pickering v. Bd. of Educ., 391 U.S. 563 (1968) (balancing the government’s interests in efficiency against the public

employee’s interest in First Amendment activity).

personnel regulations than an ordinary government employer,” Tindle v. Caudell, 56 F.3d 966, 971

(8th Cir. 1995), and a police department’s assessment of “the potential for disruption . . . as well

as [its] response to actual or perceived disruption, are entitled to ‘considerable judicial deference,’”

Tyler v. City of Mountain Home, 72 F.3d 568, 570 (8th Cir. 1995) (quoting Shands v. City of

Kennett, 993 F.2d 1337, 1345 (8th Cir. 1993)). But before a court can undertake this analysis, the

government must put forth evidence supporting its justification; that is, a governmental employer

must put forth more than “[m]ere allegations” or “conclusory statements” of actual or anticipated

disruption. See Sexton v. Martin, 210 F.3d 905, 912–13 (8th Cir. 2000) (withholding qualified

immunity from department of public safety officials); accord Henry v. Johnson, 950 F.3d 1005,

1011 (8th Cir. 2020) (“Where there is no evidence of disruption . . . there are no government

interests in efficiency to weigh against First Amendment interests.”).

Here, undoubtedly because Defendants concluded that the constitutionality of Defendant

Pulley’s verbal order was a “red herring” and “irrelevant to this case,” Doc. [33] at 7, they have

failed to put forth evidence of any real or perceived disruption to Dexter Police Department

operations that would justify Defendant Pulley’s content-based restriction of his officers’ First

Amendment activity, Doc. [39] ¶¶ 6, 10 (admitting, for purposes of the instant Motion, that there

is no evidence that FOP discussions or business interfered with Dexter Police Department

operations).15 Thus, the Court is unable to determine whether summary judgment is appropriate

as to this claim. The Court will therefore require supplemental summary-judgment briefing from

the parties as to whether there are undisputed facts demonstrating that Defendant Pulley’s verbal

15 Defendants’ blanket assertion that the department’s interests “clearly” outweighed any employee interests with

respect to “on duty restrictions,” Doc. [33] at 9, is both improperly supported, see Sexton, 210 F.3d at 912 (conclusory

statements unsupported by evidence are insufficient), and incorrect, at least as a general proposition, see, e.g., Beach

v. City of Olathe, 185 F. Supp. 2d 1229, 1239 (D. Kan. 2002) (“[T]he court concludes that plaintiff's interest in

engaging in his speech and associational activities, whether on-duty or off-duty, outweighs [the police department’s]

interest in regulating the speech and activities.”).

order was a reasonable response to actual or anticipated disruption to the efficiency of the Dexter

Police Department’s operations. See Fed. R. Civ. P. 56(e) (providing “[i]f a party fails to properly

support an assertion of fact . . . the court may (1) give an opportunity to properly support or address

the fact; . . . or (4) issue any other appropriate order”).

In addition, the parties’ supplemental briefing should address whether, under Missouri state

or local law, Defendant Pulley can be considered an authorized policymaker of the City of Dexter

such that his departmental order would support a finding of municipal liability. See Schaffer v.

Beringer, 842 F.3d 585, 596 (8th Cir. 2016) (clarifying that “[t]o prove the existence of a policy,

a plaintiff must point to an official policy, a deliberate choice of a guiding principle or procedure

made by the municipal official who has final authority regarding such matters”); accord Pembaur

v. City of Cincinnati, 475 U.S. 469, 483 (1986) (“Municipal liability attaches only where the

decisionmaker possesses final authority to establish municipal policy with respect to the action

ordered.”). Whether Defendant Pulley acted “with final policymaking authority for the local

government” is a determination the Court must make as a matter of law, considering “(1) state and

local positive law and (2) state and local custom or usage having the force of law.” Atkinson v.

City of Mountain View, 709 F.3d 1201, 1215 (8th Cir. 2013) (internal quotations omitted).

V. Conclusion

Therefore, the Court will grant summary judgment in favor of Defendants on Plaintiff’s

First Amendment retaliation claim. However, the Court will require supplemental summary-

judgment briefing to determine whether summary judgment is appropriate as to Plaintiff’s claim

that Defendant Pulley imposed an unconstitutional departmental policy that violated Plaintiff’s

First Amendment rights.

Accordingly,

IT IS HEREBY ORDERED that, consistent with this Memorandum and Order,

Defendant Trevor Pulley and Defendant City of Dexter’s Motion for Summary Judgment is

GRANTED in part and DENIED in part.

IT IS FURTHER ORDERED that Defendants shall file supplemental summary-

judgment briefing, consistent with this Memorandum and Order, no later than thirty (30) days from

the date below. Defendants’ Memorandum of Law shall not exceed ten (10) numbered pages,

exclusive of the Table of Contents, Table of Authorities, signature page, and attachments.

Defendants’ briefing shall otherwise comply with Local Rule 4.01. See E.D. Mo. L.R. 4.01(E).

IT IS FURTHER ORDERED that Plaintiff shall file his Response in Opposition to the

arguments raised in Defendants’ supplemental briefing no later than twenty-one (21) days after the

supplemental briefing is filed. The Response shall not exceed ten (10) numbered pages, exclusive

of the Table of Contents, Table of Authorities, signature page, and attachments. Plaintiff's

response shall otherwise comply with Local Rule 4.01. See E.D. Mo. L.R. 4.01(E).

IT IS FINALLY ORDERED that Defendants shall file their Reply in Support no later

than ten (10) days after Plaintiff files his Response in Opposition. Defendants’ Reply shall not

exceed six (6) numbered pages, exclusive of any Table of Contents, Table of Authorities, signature

page, and attachments. Defendants’ Reply shall otherwise comply with Local Rule 4.01.

Dated this 28th day of July 2025. fe

My Pe

UNITED STATES DISTRICT JUDGE

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