Richard Burton v. Arkansas Secretary of State

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 13-1427

___________________________

Richard A. Burton

lllllllllllllllllllll Plaintiff - Appellee

v.

Arkansas Secretary of State; Mark Martin, In his Official Capacity as Arkansas

Secretary of State; Darrell S. Hedden, In his Individual and Official Capacity as

Chief of Police for State Capitol Police

lllllllllllllllllllll Defendants - Appellants

____________

Appeal from United States District Court

for the Eastern District of Arkansas - Little Rock

____________

Submitted: September 25, 2013

Filed: December 17, 2013

____________

Before WOLLMAN, BEAM, and SMITH, Circuit Judges.

____________

SMITH, Circuit Judge.

Richard A. Burton sued his former employer, Arkansas Secretary of State Mark

Martin ("Secretary of State"), in his official capacity, and the Chief of the Arkansas

State Capitol Police, Darrell Hedden, in his individual and official capacity,

(collectively, "state defendants") for race discrimination and retaliation under Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq.; 42 U.S.C. §

1983; and the Equal Protection Clause of the Fourteenth Amendment. Thereafter, the

state defendants moved for summary judgment. The district court denied the state

defendants' motion for summary judgment on Burton's race discrimination and

retaliation claims. The court concluded that Burton could pursue his Title VII claims

against all defendants but that the Eleventh Amendment barred his § 1983 claims

against the Secretary of State and his claims for monetary damages against the

Secretary of State and Chief Hedden in their official capacities. The district court also

denied Chief Hedden qualified immunity, concluding that Burton could pursue his §

1983 claims for prospective injunctive relief and monetary damages against Chief

Hedden in his individual capacity. Additionally, the district court denied summary

judgment to the state defendants as to mitigation of damages and punitive damages.

But the court granted summary judgment to the state defendants on Burton's 42 U.S.C.

§ 1981 claims, hostile-work environment claim, and claim of deprivation of a

protected property or liberty interest.

The state defendants appeal the district court's denial of qualified immunity to

Chief Hedden on Burton's § 1983 claims for race discrimination and retaliation. They

also ask this court to review the district court's denial of summary judgment to them

on Burton's Title VII claims, contending that these claims are inextricably intertwined

with resolution of the qualified-immunity issue. For the following reasons, we affirm

the district court's decision in all respects, except we reverse its denial of qualified

immunity to Chief Hedden on Burton's § 1983 equal-protection retaliation claim

because no clearly established right exists under the Equal Protection Clause to be free

from retaliation. We remand for further proceedings consistent with this opinion.

I. Background

"We recite the facts in the light most favorable to [Burton] because [he] was the

non-moving party." Brown v. City of Jacksonville, 711 F.3d 883, 885 n.3 (8th Cir.

2013) (citation omitted).

-2-

From June 9, 2009, until his termination on April 12, 2010, Burton, an African

American, was employed as a certified law enforcement officer with the State Capitol

Police by the Secretary of State. Before joining the State Capitol Police, Burton

worked as a certified law enforcement officer with the Pine Bluff Police Department

for nearly four years.

Chief Hedden offered Burton the officer position in a meeting with Sergeant

David Huggs. During the meeting, Chief Hedden advised Burton that he would be

working the 3:00 p.m. to 11:00 p.m. shift with Officer Norman Gomillion, Assistant

Chief Theo Pierce, and Officer Danny Winters, all white males. According to Burton,

Chief Hedden told Burton that this "shift was full of rednecks" and "from time to time

they may say some things that may be offensive" to Burton. Chief Hedden instructed

Burton to come see him "if they did anything that bothered [Burton]." Chief Hedden

also informed Burton that his salary would be $37,500 per year. Once Burton

successfully completed the six-month probationary period, Burton would receive

"[a]nother $2,500." Burton successfully completed the six-month probationary period.

On December 7, 2009, six months after Burton's hire, Chief Hedden made written

request to his immediate supervisor, Cathy Bradshaw, Deputy Secretary of State, to

give Burton a raise.

Each person hired by the State Capitol Police receives a State Capitol Police

Policy and Procedures Manual and a Secretary of State Personnel Manual and is

instructed to read both. Among other things, the manuals contain policies regarding

complaints, appeals procedures, and standards of conduct. Burton acknowledged

receipt of both manuals on June 5, 2009.

On December 8, 2009, Burton contacted Chief Hedden and informed him that

Officer Gomillion had made offensive remarks about Burton and Randy Hitch,

another African-American employee, to Robin Lang, a white, female member of the

housekeeping staff. Officer Gomillion referred to Burton and Hitch as "n****rs."

-3-

Burton alleges that Officer Gomillion often used racial epithets in Lang's presence,

expressing his dislike for African Americans and his view that whites were superior

to blacks. Lang and Burton worked the same shift and discussed Officer Gomillion's

comments. When Officer Gomillion saw Lang with two African-American males,

Lang claims that Officer Gomillion said, "[Y]ou don't do that n****r thing, do you[?]"

When Lang asked Officer Gomillion what he meant, he replied, "[Y]ou don't do that

n****r thing, you don't date n****rs, do you?" Lang also claims that Officer

Gomillion "referred to [President] Obama at that time as being the n****r in the office

that was going to bring the United State[s] down." According to Lang, she often

considered reporting Officer Gomillion but felt like she would be wasting her time.

Chief Hedden instructed Burton to prepare a written complaint regarding

Officer Gomillion's behavior. On December 9, 2009, Burton submitted a handwritten

complaint setting forth Officer Gomillion's racially offensive comments, as well as the

statements of Lang, Hitch, and Misty Lane, another employee. Chief Hedden told

Burton that he needed to type his complaint and resubmit it, which Burton did.

After receiving Burton's complaint, Chief Hedden read it and the witness

statements and met with Officer Gomillion. As the district court noted, "[t]he record

evidence does not indicate Chief Hedden took any other steps to investigate." Burton

v. Martin, No. 4:11–cv–710 KGB, 2013 WL 598123, at *2 (E.D. Ark. Feb. 16, 2013).

Officer Gomillion denied making the racially offensive comments and offered to take

a polygraph test. On December 14, 2009, Chief Hedden issued Officer Gomillion a

"Letter of Counseling." In the letter, Chief Hedden advised Gomillion of the written

complaint lodged against him; "remind[ed] [him] that any derogatory or racially

motivated remarks can be considered harassment and will not be tolerated"; and

"cautioned that any future complaints regarding inappropriate, offensive, and/or

derogatory statements made toward African-Americans will be considered a violation

of Secretary of State Policy and Procedure and may result in corrective action against

[him]."

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On January 22, 2010, Burton inquired via email about the status of his

complaint against Officer Gomillion. Chief Hedden denies receiving this email. On

January 25, 2010, Chief Hedden emailed Bradshaw to inquire about the status of his

raise request for Burton. The Secretary of State granted Chief Hedden's request to

increase Burton's pay on February 9, 2010.

On February 16, 2010, Burton alleges that Officer Gomillion threw a set of keys

at Burton and Hitch. Burton notified Chief Hedden of the incident that evening. The

next day, Burton submitted a written statement regarding the incident to Sergeant

Huggs. Thereafter, Assistant Chief Larry Robinson, Sergeant Huggs, and Officer

Charlie Brice, who is also African American, met with Burton. Assistant Chief

Robinson showed Burton the at-will employment policy, which Burton understood as

providing "that anybody can be fired for any reason at any time." Assistant Chief

Robinson insisted that Burton read the policy, even though Burton had already made

clear that he knew what the policy stated. Assistant Chief Robinson then showed

Burton a "new shift rule[], saying that there is no bickering amongst employees."

Burton asked Assistant Chief Robinson if he was referring to Officer Gomillion and

inquired about the status of his complaint. Burton claims that Assistant Chief

Robinson replied that "if y'all stop aggravating [Officer Gomillion], this stuff wouldn't

happen."

On March 26, 2010, Burton worked a traffic accident. Although State Capitol

Police Policy #2004-68 requires an officer to complete a traffic accident report prior

to the end of that officer's shift, Burton did not complete the report before the end of

his shift that day. According to Burton, when he attempted to complete the report,

Sergeant Huggs told him not to complete the report until Sergeant Huggs could show

Burton how to enter it into the computer system. Over the next few days, the

individuals involved in the accident called requesting copies of the accident report.

State law requires that the Arkansas State Police receive all traffic accident reports

within five days.

-5-

In March 2010, Burton requested to work part-time for a private party providing

security. Chief Hedden approved this request but warned Burton not to let his part-

time work interfere with his full-time job. On March 30, 2010, Burton was scheduled

to work beginning at 3 p.m., but he overslept after having worked at his other job on

the night of March 29, 2010, until 7 a.m. on March 30, 2010. Burton called in at

approximately 5:30 or 6 p.m. and spoke with Sergeant Huggs, who told Burton not to

come in and to report the following day.

The next day, Burton reported to work, and Chief Hedden showed Burton how

to enter the accident report into the system. That same day, Burton was issued an

"Official Letter of Reprimand" based on his failure to report to work as scheduled on

March 30, 2010, and failure to complete the accident report in a timely manner. With

regard to absence on March 30, 2010, the letter stated:

On Tuesday March 30, 2010, you failed to report for duty

as scheduled and also failed to contact this department in

adequate time so arrangements could be made with other

personnel for proper shift coverage. You made contact with

the department at approximately 6:00pm on March 30,

2010, three hours after the start of your shift, and stated you

had over slept [sic]. Sergeant Huggs advised you at that

time not to report for duty on that date due to half of the

shift being completed.

The letter directed Burton to "make note of the following departmental policies." First,

"Policy Number 2004-55 'POLICE OFFENSES: DISCIPLINARY,'" provided for

employee discipline for "[a]bsence from duty without approved leave." Second, "State

Capitol Police General Orders #1" provided that "[a]ll Capitol Police personnel must

report for duty on time and according to their shift schedule." Third, "Policy #2004-

65" concerning "Punctuality" provided that "[e]mployees shall be present for duty as

scheduled unless a supervisor authorizes absence."

-6-

With regard to Burton's off-duty employment, the letter stated:

On Thursday March 4th 2010, you sent me a memorandum requesting

authorization to work off-duty at the Rockefeller Mansion on Monday

nights. I approved this request and provided you with a memorandum

dated Friday March 5th 2010 stating "that if any situation arises that may

conflict with the operations of this department or adversely affect the

Capitol Police or Secretary of State's Office this off-duty employment

will discontinue."

The letter directed Burton to "take note of" "Policy #2004-51" concerning "Off -Duty

Employment," which provides that "[n]o Officer . . . of this department shall engage

in any outside employment . . . which is in conflict with the duties of his/her

employment, or which is adverse to the interest of the Secretary of State's office or the

State Capitol Police."

Finally, as to Burton's failure to timely complete the accident report, the letter

provided:

On Friday March 26, 2010 at approximately 15:56 hours (3:00 pm), you

were dispatched to a reported automobile accident at Capitol Avenue and

Wolf Street. You responded to the accident and wrote two citations to

one of the individuals involved in the accident. You[] worked the

remainder of the shift on March 26th without completing the accident

report or turning in the citations issued. You worked on March 27, 2010

from 3:00[]pm until 11:00 pm and again failed to complete the accident

report or turn in the citations issued.

The citizens involved in the accident requested a copy of the accident

report on March 29th, 30th, and 31st and have had to be told by this

office that the investigating officer has not completed the accident report

as of this date. You have had adequate time to complete the accident

report and have it and all related documents turned in to this office.

-7-

The letter directed Burton to "make note of the following departmental policies." First,

"Policy #2004-68" entitled "Report: Police Procedures" directed officers to complete

reports "at any time police services are requested, or any[]time police action is

required or taken." Officers must "accurately complete[]" the reports under

"prescribed procedure and submit[ ]to the supervisor prior to going off shift, unless

a supervisor authorizes additional time." Second, "Policy #2004-69" entitled "Report:

Failure to Prepare" provided that officers responding to a call, observing an offense,

or receiving information from a complainant must "prepare a report, regardless of the

action taken." It advised that an officer's "[f]ailure to prepare a report for an assigned

case or from information received from a complainant or personal observation shall

be cause for disciplinary action."

The letter concluded by finding Burton in "clear violation" of Policy #2004-65,

Policy #2004-55, Policy # 2004-68, and Policy # 2004-69. In addition to denying

Burton approval for continued off-duty employment, the letter also stated:

You are also requested by this department to provide a written

memorandum, within five days, explaining your reasons for failing to

properly complete an accident report in a timely manner and your

reasons for failing to report for duty as scheduled on March 30th 2010.

You are also advised that March 30th 2010 will be recorded as leave

without pay.

You are advised that any future violations of department policies and/or

procedures can result in additional disciplinary actions up to and

including termination of employment.

A copy of this Official Letter of Reprimand will be provided to you and

a copy will be placed in your personnel file.

Burton did not provide the memorandum within the requested five-day period.

-8-

On April 7, 2010, Chief Hedden contacted Harmony Daniels of the Secretary of

State's Human Resources Department to advise Daniels of Burton's failure to provide

the memorandum. Daniels informed Chief Hedden that Burton's failure to provide the

memorandum is "an additional violation" and directed Chief Hedden to "remind him

that a written memorandum is due. Failure to comply with the request could result in

further correcti[ve] action, up to and including termination of employment." Chief

Hedden claims that he reminded Burton via email and text message to submit the

memorandum, but Burton disputes receiving such communications.

On April 9, 2010, Chief Hedden reported Burton's failure to provide the

memorandum to Bradshaw and "recommend[ed] [Burton's] employment as a Police

Officer of this department be discontinued." In Chief Hedden's memorandum to

Bradshaw, he stated:

Because of Officer Burton's failure to follow policy and procedures that

has led this department to issue an Official Letter of Reprimand, and

because Officer Burton has willfully failed to follow the instructions and

orders issued by supervisory personnel, he has failed to satisfactorily

perform the duties of a police officer as required by this department.

With this type of action it is apparent to this department that Officer

Burton has chosen and will not be able to complete the 12–month

probationary period1 satisfactorily.

1

As the district court explained:

The Arkansas Commission on Law Enforcement Standards requires all

certified law enforcement officers to complete a 12–month probationary

period. Mr. Burton maintains that he completed this 12–month period

while working at the Pine Bluff Police Department, while defendants

maintain he was required to complete a 12–month probationary period

with the State Capitol Police, as well.

Burton, 2013 WL 598123, at *3 n.3. We will address the relevance of Burton's status

as a probationary employee infra.

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On April 12, 2010, Burton was terminated for "[f]ailure to meet Commission

12[-]month probationary standards."

Burton brought suit against the Secretary of State, in his official capacity, and

Chief Hedden, in his individual and official capacity for race discrimination and

retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.

§ 2000e, et seq.; 42 U.S.C. § 1983; and the Equal Protection Clause of the Fourteenth

Amendment. The state defendants then moved for summary judgment. The district

court denied the state defendants' motion for summary judgment on Burton's race

discrimination and retaliation claims. The court concluded that Burton could pursue

his Title VII claims against all defendants but that the Eleventh Amendment barred

his § 1983 claims against the Secretary of State and his claims for monetary damages

against the Secretary of State and Chief Hedden in their official capacities. The district

court also denied Chief Hedden qualified immunity, concluding that Burton could

pursue his § 1983 claims for prospective injunctive relief and monetary damages

against Chief Hedden in his individual capacity. Additionally, the district court denied

summary judgment to the state defendants as to mitigation of damages and punitive

damages. But the court granted summary judgment to the state defendants on Burton's

42 U.S.C. § 1981 claims, hostile-work environment claim, and claim of deprivation

of a protected property or liberty interest.

II. Discussion

The state defendants appeal the district court's denial of qualified immunity to

Chief Hedden under § 1983 for Burton's race discrimination and retaliation claims.

They also appeal the district court's denial of summary judgment to them on Burton's

Title VII race discrimination and retaliation claims. They ask this court to exercise

pendent jurisdiction, arguing that the appeal of these claims is "inextricably

intertwined" with the qualified-immunity interlocutory appeal.

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A. Qualified Immunity

We have jurisdiction under the collateral-order doctrine "to consider an

interlocutory appeal of an order denying qualified immunity to the extent the appeal

seeks review of purely legal determinations made by the district court." Mitchell v.

Shearrer, 729 F.3d 1070, 1073 (8th Cir. 2013) (quotations and citations omitted).

Therefore, "we have jurisdiction to consider whether the facts, taken in the light most

favorable to [Burton], support a finding that [Chief Hedden] violated [Burton's]

clearly established constitutional rights." Id.

A government official is entitled to qualified immunity "from liability in a

§ 1983 action unless the official's conduct violates a clearly established constitutional

or statutory right of which a reasonable person would have known." Id. at 1074

(citations omitted). We apply a de novo standard of review to a district court's denial

of summary judgment based on qualified immunity. Id. (citation omitted). We are

obligated to "view the facts in the light most favorable to [Burton], accepting as true

the facts that the district court found were adequately supported, as well as the facts

the district court likely assumed." Id. (citation omitted).

We apply a two-step analysis in making qualified-immunity determinations:

"(1) whether the facts shown by the plaintiff make out a violation of a constitutional

or statutory right, and (2) whether that right was clearly established at the time of the

defendant's alleged misconduct." Id. (citations omitted). We are "permitted to exercise

[our] sound discretion in deciding which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circumstances in the particular case

at hand." Pearson v. Callahan, 555 U.S. 223, 236 (2009).

"There is no question that [Burton's] right to be free from racial

. . . discrimination was well-established at the time of [his] termination." Wimbley v.

Cashion, 588 F.3d 959, 963 (8th Cir. 2009) (citing Civil Rights Act of 1964

§ 703(a)(1), 42 U.S.C. § 2000e-2(a)(1) ("It shall be an unlawful employment practice

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for an employer to . . . discharge any individual . . . because of such individual's race,

color, religion, sex, or national origin. . . . ")). We have previously recognized that

"[t]he constitutional right to be free from [racial] discrimination is so well established

and so essential to the preservation of our constitutional order that all public officials

must be charged with knowledge of it." Id. (quotation and citation omitted). Therefore,

we will address whether the facts, taken in the light most favorable to Burton,

demonstrate the violation of Burton's constitutional rights.

1. Section 1983 Race Discrimination Claim

A plaintiff bringing a race discrimination claim may prove his case "by

providing direct evidence of discrimination or by creating an inference of unlawful

discrimination through the McDonnell Douglas2 analysis." Bone v. G4S Youth Servs.,

LLC, 686 F.3d 948, 953 (8th Cir. 2012) (citation omitted). Burton presented no direct

evidence of discrimination; therefore, "he must establish [race] discrimination through

the McDonnell Douglas burden-shifting framework." Twiggs v. Selig, 679 F.3d 990,

993 (8th Cir. 2012) (citation omitted). Burton "must show (1) he is a member of a

protected class, (2) he met his employer's legitimate expectations, (3) he suffered an

adverse employment action, and (4) the circumstances give rise to an inference of

discrimination." Pye v. Nu Aire, Inc., 641 F.3d 1011, 1019 (8th Cir. 2011) (citation

omitted). Burton may "satisfy the fourth part of the prima facie case in a variety of

ways, such as by showing more-favorable treatment of similarly-situated employees

who are not in the protected class." Id. (citation omitted). The state defendants must

provide "a non-discriminatory, legitimate justification for [their] conduct, which

rebuts the employee's prima facie case." Bone, 686 F.3d at 954 (quotation and citation

omitted). "Once the [state defendants] provide[] this reason, the presumption of

discrimination disappears, requiring [Burton] to prove that the proffered justification

is merely a pretext for discrimination." Twiggs, 679 F.3d at 993 (quotation and citation

omitted).

2

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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In their brief, the state defendants implicitly assume that Burton has satisfied

his prima facie case and move directly to stages two and three of the McDonnell

Douglas burden-shifting framework, contending that "[b]ecause [they] have shown

a valid non-discriminatory reason for Mr. Burton's termination, '[t]he plaintiff must

show that he and [the comparators] are similarly situated in all relevant respects.'"

Brief of Appellants, Ark. Sec'y of State v. Burton, No. 13-1427, 2013 WL 1887005,

at *17 (8th Cir. Apr. 29, 2013) (third and fourth alterations in original) (quoting

Wimbley v. Cashion, 588 F.3d 959, 962 (8th Cir. 2009)). We may "assum[e], without

deciding, that [Burton] presented a prima facie case of race . . . discrimination." Bone,

686 F.3d at 954 (citation omitted). Additionally, Burton has not challenged the district

court's finding that the state defendants articulated non-discriminatory, legitimate

justifications for terminating Burton due to his

fail[ure], among other things, (1) to report to work as scheduled on

March 30, 2010; (2) to inform his employer of his absence so that

arrangements could be made for proper shift coverage; (3) to complete

a traffic accident report before the end of his shift; and (4) to submit a

written memorandum as requested by Chief Hedden. These alleged

violations of company policy constitute evidence of a legitimate,

nondiscriminatory basis for Mr. Burton's termination.

Burton, 2013 WL 598123, at *8 (citing Putnam v. Unity Health Sys., 348 F.3d 732,

736 (8th Cir. 2003) ("Our cases have repeatedly held that insubordination and

violation of company policy are legitimate reasons for termination.")). And, we

conclude that the district court correctly determined that the state defendants satisfied

this non-onerous burden. See Bone, 686 F.3d at 954 ("This burden is not onerous.").

Therefore, Burton must "prove that the proffered justification[s] [are] merely

a pretext for discrimination." Id. at 955 (quoting Pope v. ESA Servs., Inc., 406 F.3d

1001, 1007 (8th Cir. 2005)). Burton bears "the burden of persuasion at all times." Id.

(citing Pope, 406 F.3d at 1007). At this stage, Burton's obligation to demonstrate "a

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genuine issue of material fact regarding pretext merges with the ultimate burden of

persuading the court that [Burton was] the victim of intentional discrimination." Id.

(quotation and citation omitted). "Proof of pretext, coupled with a strong prima facie

case, may suffice to create a triable question of fact as to whether the termination was

motivated by intentional discrimination." Id. (quotation and citation omitted).

Burton argues, and the district court concluded, that Burton established pretext

by demonstrating that similarly situated coworkers were treated more favorably. See

Burton, 2013 WL 598123, at *9 (determining that Burton "identified Officer [Robert]

Barham as a Caucasian employee who repeatedly reported to work late" and "reported

to work late on three occasions during March and April 2010" without being required

to "prepare a memorandum explaining his conduct").

"At the pretext stage, 'the test for determining whether employees are

similarly situated to a plaintiff is a rigorous one.'" Bone v. G4S Youth

Servs., LLC, 686 F.3d 948, 956 (8th Cir. 2012) (quoting Rodgers v. U.S.

Bank, N.A., 417 F.3d 845, 853 (8th Cir. 2005), abrogated on other

grounds by Torgerson [v. City of Rochester], 643 F.3d 1031 [(8th Cir.

2011) (en banc)]). To succeed with this argument, [Burton] must show

that [he] and the [white] employees were "similarly situated in all

relevant respects." Id. (quoting Rodgers, 417 F.3d at 853). That is, the

employees "used for comparison must have dealt with the same

supervisor, have been subject to the same standards, and engaged in the

same conduct without any mitigating or distinguishing circumstances."

Wierman v. Casey's Gen. Stores, 638 F.3d 984, 994 (8th Cir. 2011)

(quoting Cherry v. Ritenour Sch. Dist., 361 F.3d 474, 479 (8th Cir.

2004)).

Muor v. U.S. Bank. Nat'l Ass'n, 716 F.3d 1072, 1078 (8th Cir. 2013). "Furthermore,

'[t]o be probative evidence of pretext, the misconduct of more leniently disciplined

employees must be of comparable seriousness.'" Bone, 686 F.3d at 956 (alteration in

original) (quoting Rodgers, 417 F.3d at 853 (quoting Harvey v. Anheuser-Busch, Inc.,

38 F.3d 968, 972–73 (8th Cir. 1994))).

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Although the standard for determining whether employees are similarly situated

is "rigorous" at the pretext stage, see Muor, 716 F.3d at 1078, we do not require the

plaintiff to produce evidence of "a clone." Ridout v. JBS USA, LLC, 716 F.3d 1079,

1085 (8th Cir. 2013). This court has previously described the inquiry as follows:

The "similarly situated co-worker inquiry is a search for a

substantially similar employee, not for a clone." Chaney v. Plainfield

Healthcare Ctr., 612 F.3d 908, 916 (7th Cir. 2010). In order to rely on

comparator evidence such as [Burton] offers, he must prove only that the

other employees were "similarly situated in all relevant respects." Lynn

v. Deaconess Med. Ctr.-W. Campus, 160 F.3d 484, 487 (8th Cir. 1998)

(quoting Harvey v. Anheuser–Busch, Inc., 38 F.3d 968, 972 (8th Cir.

1994)). To demonstrate that they are "similarly situated," he "need only

establish that he or she was treated differently than other employees

whose violations were of comparable seriousness." Id. at 488 (quotation

omitted, emphasis added). In Lynn we explicitly rejected the notion that

comparator analysis requires that the compared employees engaged in

"the exact same offense." Id. We observed that demanding that the

compared employees have engaged in precisely identical conduct would

make an employee's conduct which was more serious than that of the

plaintiff irrelevant to the analysis. Id. "Common sense as well as our case

law dictates that we reject such an approach." Id.

The [EEOC v.] Kohler3 rule could appear inconsistent with our

court's earlier precedent including the Lynn case. To the extent that there

were a real conflict, however, Kohler would yield to the earlier rule. See

Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc). We

do not interpret Kohler to present a conflict because it simply stands for

the unremarkable proposition that the ideal comparator will match the

characteristics of the plaintiff employee in as many respects as possible.

See 335 F.3d at 766. While no employee is a precise clone of another,

see Chaney, 612 F.3d at 916, the probative value of comparator evidence

will be greatest when the circumstances faced by the putative

comparators are most similar to the plaintiff's. Where evidence

3

716 F.3d 1079 (8th Cir. 2003).

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demonstrates that a comparator engaged in acts of "comparable

seriousness" but was disciplined differently, a factfinder may decide

whether the differential treatment is attributable to discrimination or

some other cause. See Lynn, 160 F.3d at 489.

The facts in Lynn are instructive. In that case, nurse Lynn had been

previously disciplined for tardiness, a disrespectful attitude, lack of

productivity, failure to assist a patient with therapeutic equipment, and

incorrect document preparation. 160 F.3d at 486. He was eventually

discharged because his work performance reflected "a serious lack of

appropriate nursing judgment." Id. Lynn's comparator was another nurse

named Mohr who had been repeatedly sleeping on the job, but who

received only minor and belated discipline. Id. at 487 The district court

considered Mohr's infractions to be different in type and thus not

comparable; Mohr also had a less extensive disciplinary history than

Lynn. Id.

We reversed the grant of summary judgment to Lynn's employer

after concluding that the district court had erred by ignoring Lynn's

comparator analysis. Id. at 488. While a factfinder could find the

differences between Lynn and Mohr sufficient to defeat a claim of

pretext, it would not e obligated to do so. Id. Mohr's sleeping on the job

was a more serious offense than anything Lynn had been accused of,

particularly since it had sometimes occurred while Mohr was the only

nurse on duty. Id. In addition, the two had different disciplinary histories,

at least arguably the result of disparate treatment. Id. Lynn had a sterling

performance record prior to working under his last supervisor who was

notably quicker to discipline him than Mohr. Id. Since Mohr's record

showed "the same kind of 'serious lack of appropriate nursing judgment'

that resulted in Lynn's discharge," the comparator analysis was sufficient

to create a genuine fact issue over pretext. Id. at 489.

Id. at 1085–86 (concluding, in an age discrimination case, that a younger coworker

was "a valid comparator for [the employer's] insubordination justification for its

discharge of [the plaintiff]" where the younger coworker "[c]raft[ed] a mock Ku Klux

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Klan hood and display[ed] it to an African American employee," and the plaintiff

"rais[ed] [his] voice during an argument on a loud factory floor").

In the present case, we agree with the district court that Burton presented

evidence at the pretext stage of at least one similarly situated coworker, Officer Robert

Barham, a Caucasian employee.4 First, the state defendants do not contest that Chief

Hedden served as the supervisor to both Burton and Officer Barham. See Muor,

716 F.3d at 1078.

Second, we conclude that Burton and Officer Barham were "subject to the same

standards." See id (quotation and citation omitted). The state defendants argue that the

same standards did not apply to Burton and Officer Barham because Burton was a

probationary employee, while Officer Barham was not. According to the state

defendants, although Burton had completed his six-month probationary period under

the Secretary of State's policy, he was still under a 12-month probationary period

pursuant to Arkansas Commission on Law Enforcement Standards and Training

Regulation 1003 ("Regulation 1003"). Chief Hedden referred to Regulation 1003 in

his April 9, 2010 memorandum recommending Burton's termination; it provides that

"[e]very officer employed or appointed below the level of department head shall

satisfactorily complete a probationary period of not less than twelve (12) months with

the employing department." The state defendants maintain that "[t]his court has

repeatedly ruled that probationary employees are not similarly situated to veteran,

non-probationary employees as a matter of law." Brief of Appellants, Ark. Sec'y of

State v. Burton, No. 13-1427, 2013 WL 1887005, at *18 (8th Cir. Apr. 29, 2013)

(citing Bogren v. Minnesota, 236 F.3d 399, 405 (8th Cir. 2000)). They conclude that

because Burton was a probationary employee under Regulation 1003, Officer Barham,

a non-probationary employee, is not a valid comparator.

4

Burton also asserts that Officers Norman Gomillion and James Wiley are valid

comparators. Because we conclude that Officer Barham is a valid comparator, we

need not address whether these additional officers are also valid comparators.

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In response, Burton asserts that he was not a probationary employee under

Regulation 1003 because he had previously completed this 12-month probationary

period while working at the Pine Bluff Police Department and thus was a certified

officer at the time the Secretary of State's office hired him. Alternatively, Burton

argues that Officer Barham was a probationary employee when he engaged in conduct

similar to Burton's conduct.

Assuming, without deciding, that Burton was a probationary employee at the

time of his termination, we conclude that Burton and Officer Barham were subject to

the same standards because Officer Barham was also a probationary employee when

he engaged in the relevant conduct. Officer Barham was placed on six-months

probation on June 28, 2012, by Chief Hedden for failing to meet the firearm

qualification. During this six-month probationary period, Officer Barham was issued

a "Letter of Reprimand/Suspension" on October 2, 2012, for, among other things,

being late for work on August 30, 2012; September 5, 2012; September 28, 2012; and

October 2, 2012.

Finally, we conclude that Burton has "establish[ed] that he . . . was treated

differently than [Officer Barham,] whose violations were of comparable seriousness."

Ridout, 716 F.3d at 1085 (quotation and citation omitted). Burton has presented

evidence that while both he and Officer Barham failed to report timely to work or

missed work, Officer Barham was not terminated for such conduct. Burton admittedly

failed to report to work on March 30, 2010, because he overslept after working off-

duty the prior day. The "Official Letter of Reprimand" stated that Burton violated

Policy #2004-65 (Punctuality) and Policy #2004-55 (Absence from duty without

approved leave) based on this incident. Burton was ultimately terminated for failing

to write the requested memorandum explaining his conduct. By contrast, Officer

Barham has a litany of offenses concerning his failure to report timely to work and

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abuse of leave, for which he was never terminated and, save for one instance, not

required to write a memorandum.5

5

Officer Barham's offenses are as follows:

1. On November 7, 2008, Chief Hedden issued Officer Barham a "Letter of

Counseling" regarding Officer Barham's "fail[ure] to contact this department prior to

the beginning of [his] shift to indicate [he] would not be at work" on November 6,

2008. "[O]ver four hours after the start of [his] scheduled shift," Officer Barham had

contacted the department "and explained [he] had over slept." The letter provided that

Officer Barham was in violation of, among other things, Policy #2004-65

(Punctuality). Chief Hedden requested that Officer Barham "provide a written

memorandum explaining [his] reasons for failing to report for duty as scheduled on

November 6, 2008." Unlike Burton, Officer Barham did provide the requested

memorandum. But, we note that, although both Burton and Officer Barham violated

department policy by oversleeping and failing to timely report to work, Chief Hedden

issued Officer Barham a "Letter of Counseling" that was "not a form of disciplinary,

but [was] presented to [Officer Barham] as a form of training in hopes [Officer

Barham] [would] consider [his] actions and take appropriate steps to prevent this from

happening in the future." By contrast, Chief Hedden issued Burton an "Official Letter

of Reprimand" for similar conduct.

2. On March 15, 2009, Chief Hedden issued Officer Barham a "Letter of

Reprimand" for abuse of sick leave, in violation of Policy #2004-47. According to the

letter, Officer Barham requested a leave day on January 22, 2008, "to take care of a

personal situation." He "used sick leave on this occasion to travel to Texas." Then, on

January 25, 2009, Officer Barham contacted Chief Hedden and requested two leave

days "to take care of a personal situation." Chief Hedden expected Officer Barham to

report for work on January 28, 2008, but learned that Officer Barham "had called in

sick the night of January 27th. [He] also called in sick on the night of January 28th."

The letter referenced the prior "Letter of Counseling" issued on November 7, 2008,

and stated that Officer Barham's "use of leave on January 22nd[,] January 27th[,] and

January 28th clearly violate Policy #2004-47[,] line 1 and line 8," which provide that

"[a]t all time, when utilizing sick leave, all employees are expected to give honest and

truthful reasons for absences" and "[u]se of sick leave for reasons other than that

which is outlined under this policy can result in corrective action up to and including

termination of employment." In contrast to Burton's "Official Letter of Reprimand,"

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Chief Hedden did not request in Officer Barham's "Letter of Reprimand" that he draft

a written memorandum explaining his conduct.

3. On April 14, 2010, Assistant Chief Larry Robinson issued Officer Barham

an "Official Letter of Reprimand," which Chief Hedden was provided a copy of and

signed off on, outlining three occasions on which Officer Barham had arrived late to

work: (1) March 22, 2010 (one hour late); (2) April 1, 2010 (one-and-a-half hours

late); (3) April 14, 2010 (18 minutes late). The letter found Officer Barham in

violation of Policy #2004-65 (Punctuality). This was Officer Barham's second "Letter

of Reprimand" and, additionally, his second notification of violations of Policy #2004-

65 (Punctuality). Yet, unlike Burton, Officer Barham was not required to draft a

written memorandum explaining his conduct.

4. On April 6, 2011, Chief Hedden issued a "Letter of Counseling/Sick Leave

Usage" to Officer Barham for abuse of sick leave. According to the letter, Officer

Barham had called in sick on January 19, 2011; January 25, 2011; February 14, 2011;

February 15, 2011; February 16, 2011; February 25, 2011; February 28, 2011; March

1, 2011; and March 23, 2011. As of April 6, 2011, Officer Barham had also used the

eight hours of sick leave accrued on April 1, 2011. In total, "[s]ince January 1, 2011[,]

[Officer Barham] ha[d] called in sick ten (10) times, a total of eighty hours." Because

Officer Barham had "only accrued thirty-two (32) hours of sick leave since January

1[, 2011], . . . forty-eight (48) hours of other leave . . . had to be used to cover [his]

sick leave shortage." In the letter, Chief Hedden expressed his belief that Officer

Benham's "use of sick leave can be considered abuse of leave." Chief Hedden

reminded Officer Barham that "excessive absences and tardiness can result in

corrective action up-to and including termination of employment," but he did not

request that Officer Barham draft a written memorandum explaining his use of leave.

The "Letter of Counseling" was only "a form of training," reminding Officer Barham

"of the policies of the Secretary of State and of this department concerning leave

usage."

5. On October 2, 2012, Captain Charlie Brice issued a "Letter of

Reprimand/Suspension" detailing Officer Barham's abuse of sick leave and failure to

timely report. This letter provides, in relevant part:

-20-

Burton's disciplinary record and Officer Barham's disciplinary record contain

comparable offenses—both failed to report timely to work or missed work. In

addition, Officer Barham exhibited not only punctuality problems but also abused sick

leave, yet he was never terminated. The state defendants assert that Officer Barham

is not similarly situated to Burton because Burton ignored Chief Hedden's request for

On April 14, 2010 you were issued a written reprimand for Violation of

Policy as it relates to Punctuality and on April 6, 2011 you were issued

a Letter of Counseling for excessive sick leave usage.

Since January 1, 2012 you have used 15 days of sick leave and have now

exhausted all sick leave accumulated. This constant use of sick leave is

considered by this department as abuse of sick leave and cannot be

tolerated.

You have also called in for issues non-related to sick leave where you

stated you could not report to work and were allowed to take annual and

or comp time to address the issue. You have been late for work on the

following dates: August 30, 2012—15 minutes late, on September 5,

2012—7 minutes late, on September 28, 2012—10 minutes late, and on

October 2, 2012 you were 7 minutes late.

***

On June 28th, 2012, you were advised by written memorandum that you

were being placed on a Six-Month probationary period with this

department. You were told that the probationary period was intended to

provide you an opportunity to demonstrate your abilities as an employee

of this department and to provide this department the opportunity to

evaluate your performance as an employee with this department.

Because of Officer Barham's "punctuality issues and excessive sick leave

issues," Officer Barham was "issued a Written Reprimand and . . . suspended without

pay for a period of three working days." Unlike Burton, Officer Barham was not

required to draft a written memorandum explaining his conduct.

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a written explanation of his tardiness, while Officer Barham complied with the

request.6 But Officer Barham was required only to draft a written memorandum on

6

The state defendants also note that Officer Barham never failed to complete an

accident report like Burton. But Burton maintains that his failure to timely complete

the accident report was not the result of his own inadvertence but instead excusable

based on Sergeant Huggs telling him not to prepare the report until Sergeant Huggs

could show him how to input the report into the new computer system. Because a

genuine issue of material fact exists as to whether Burton's failure to timely complete

the accident report was a legitimate basis for his discipline, we decline to consider it

in evaluating whether Officer Barham is a valid comparator. In any event, Officer

Barham's disciplinary record appears "more serious than that of [Burton]," see Ridout,

716 F.3d at 1085, even if we consider Burton's failure to complete the accident report.

For example, Chief Hedden provided Officer Barham with a "memorandum as

a form of counseling" regarding an incident in which Officer Barham, as a private

citizen but in uniform, went to a neighbor's residence to complain about loud noise.

He presented himself "as conducting official business" by stating "open this door right

now, it's the police." According to the memorandum, such conduct violated Policy

#2004-21, which provides that "[o]fficers shall not intentionally become involved in

their own neighborhood quarrels or disputes when off duty." Officer Barham was not

disciplined for this conduct. Additionally, on February 6, 2009, a "complaint of

Harassing Communications" was filed against Officer Barham. Officer Barham denied

following the complainant "for the purpose of videotaping him, but [he] d[id] admit

to following [his] wife (Mrs. Barham) for that purpose." Because of a lack of

evidence, the complaint against Officer Barham was not sustained. And, on March 17,

2009, Chief Hedden issued a "Letter of Caution" to Officer Barham arising from an

incident in Irving, Texas, on January 22, 2009, in which Officer Barham "met and

talked with two men in the valet parking area of the Westin Hotel" and was

subsequently "approached by two Irving Texas Police Officers that had been called

to the hotel." In the letter, Chief Hedden concluded that "the very fact [that] police

were called to the location . . . implies that these individuals['] concerns were to the

level that they reported you to the police." Officer Barham also admitted "that Irving

Police officers were concerned about [him] possibly carrying a weapon and patted

[him] down." Chief Hedden stated his belief that Officer Barham failed to "use[]

ordinary and reasonable rules of good conduct and behavior in some instances" in

accordance with Policy #2004-16(f). The "letter [was] not a form of disciplinary

-22-

one occasion, despite the repetitive nature of his conduct. Moreover, "demanding that

the compared employees have engaged in precisely identical conduct would make

[Officer Barham's] conduct[,] which [we conclude] [is] more serious than that of

[Burton's conduct,] irrelevant to the analysis." Ridout, 716 F.3d at 1085. "[W]e reject

such an approach." Id. (quotation and citation omitted).

Therefore, we agree with the district court's conclusion that "[t]he comparator

evidence, taken together with other record evidence . . ., demonstrates that there is a

genuine issue of material fact as to whether there is an inference of discrimination."

Burton, 2013 WL 598123, at *9. We concur in the district court's determination that,

"[v]iewing the evidence in the light most favorable to Mr. Burton, a jury could

reasonably find that [the state] defendants' asserted reasons for terminating Mr. Burton

were a pretext for race discrimination." Id. We thus hold that the district court

correctly concluded that Chief Hedden was not entitled to qualified immunity on

Burton's § 1983 race discrimination claim.

2. Section1983 Retaliation Claim

The state defendants assert that the district court erred in denying Chief Hedden

qualified immunity on Burton's § 1983 retaliation claim because (1) Assistant Chief

Robinson's conduct cannot be imputed to Chief Hedden, and (2) former Secretary of

State Charlie Daniels, not Chief Hedden, made the decision to terminate Burton.

"In complaining of retaliation, [Burton] proceeds under two theories: violation

of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and deprivation

of 'rights, privileges, or immunities secured by the Constitution and laws' under 42

U.S.C. § 1983." Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d 980, 985 (8th Cir. 2011).

Under § 704(a) of Title VII, an employer may not "discriminate against any of his

action."

-23-

employees or applicants for employment . . . because he has opposed any practice

made an unlawful employment practice by [Title VII], or because he has made a

charge [of discrimination] . . . under [Title VII]." 42 U.S.C. § 2000e–3(a). We have

previously recognized that "section 704(a) of Title VII 'may not be the basis for a

retaliatory discharge claim in a § 1983 action.'" Tyler, 628 F.3d at 986 (quoting

Greenwood v. Ross, 778 F.2d 448, 455 (8th Cir. 1985)). However, "§ 1983 provides

a vehicle for redressing claims of retaliation on the basis of the First Amendment." Id.

(emphasis added) (citing Lewis v. Jacks, 486 F.3d 1025, 1028–29 (8th Cir. 2007)).

In his complaint, Burton alleges that he "was subjected to the above mentioned

acts of retaliation, for having complained about discriminatory practices, in violation

of Title VII of the Civil Rights Act of 1964 (as amended) as well as the Equal

Protection Clause of the Fourteenth Amendment to the United States Constitution."

(Emphasis added.) He also asserts that "the above acts of discrimination and

retaliation, were committed by the defendant under color of law, making this cause of

action enforceable pursuant to 42 U.S.C. § 1983." Nowhere in Burton's complaint

does he allege retaliation on the basis of the First Amendment.

We have not yet addressed whether a plaintiff may bring a retaliation claim for

complaining of discrimination "under the guise of equal protection" pursuant to

§ 1983. See Solum v. Bd. of Cnty. Comm'rs for Cnty. of Houston, 880 F. Supp. 2d

1008, 1015 n.7 (D. Minn. 2012) ("The Davys allege a First Amendment, freedom

from retaliation claim under the guise of equal protection. . . . The Eighth Circuit has

yet to address the issue . . . ."). "[B]ut other courts explain that 'claims based on the

allegation that [plaintiff] was treated differently in retaliation for his speech are, at

their core, free-speech retaliation claims that do not implicate the Equal Protection

-24-

Clause." Id. (second alteration in original) (quoting Kirby v. City of Elizabeth City,

N.C., 388 F.3d 440, 447 (4th Cir. 2004)).7

We conclude that the district court "erred in denying [Chief Hedden] qualified

immunity on [Burton's] equal protection claim for retaliation [under § 1983]." Ratliff,

62 F.3d at 340. "The right to be free from retaliation is clearly established as a first

amendment right and as a statutory right under Title VII; but no clearly established

right exists under the equal protection clause to be free from retaliation." Id. We have

only recognized that "§ 1983 provides a vehicle for redressing claims of retaliation on

the basis of the First Amendment." Tyler, 628 F.3d at 986 (emphasis added) (citation

omitted). "Because no established right exists under the equal protection clause to be

free from retaliation, we reverse the district court's denial of qualified immunity on

[Burton's] equal-protection retaliation claim." Ratliff, 62 F.3d at 341 (citation omitted).

7

See also Teigen v. Renfrow, 511 F.3d 1072, 1086 (10th Cir. 2007) ("The kind

of bare retaliation claim at issue in this case simply cannot form the basis for a

constitutional equal protection violation."); Boyd v. Ill. State Police, 384 F.3d 888,

898 (7th Cir. 2004) ("As ISP correctly points out, the right to be free from retaliation

may be vindicated under the First Amendment or Title VII, but not the equal

protection clause."); Watkins v. Bowden, 105 F.3d 1344, 1354 (11th Cir. 1997) ("A

pure or generic retaliation claim, however, simply does not implicate the Equal

Protection Clause."); Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir. 1996) ("[W]e know

of no court that has recognized a claim under the equal protection clause for retaliation

. . . ."); Grossbaum v. Indianapolis–Marion Cnty. Bldg. Auth., 100 F.3d 1287, 1296

n.8 (7th Cir. 1996) (stating that the Equal Protection Clause "does not establish a

general right to be free from retaliation"); Ratliff v. DeKalb Cnty., 62 F.3d 338, 340

(11th Cir. 1995) (reversing denial of qualified immunity on equal-protection

retaliation claim because there is "no clearly established right . . . under the equal

protection clause to be free from retaliation"); Gray v. Lacke, 885 F.2d 399, 414 (7th

Cir. 1989) ("Gray's right to be free from retaliation for protesting sexual harassment

and sex discrimination is a right created by Title VII, not the equal protection

clause.").

-25-

B. Title VII

The state defendants also appeal the district court's denial of their summary

judgment motion on Burton's Title VII race discrimination and retaliation claims.

They request that we exercise pendent jurisdiction over these claims because they are

"inextricably intertwined" with the qualified-immunity interlocutory appeal.

"We generally lack jurisdiction 'to hear an immediate appeal from a district

court's order denying summary judgment, because such an order is not a final

decision.'" S.L. ex rel. Lenderman v. St. Louis Metro. Police Dep't Bd. of Police

Comm'rs, 725 F.3d 843, 954 (8th Cir. Aug. 5, 2013) (quoting Krout v. Goemmer, 583

F.3d 557, 563–64 (8th Cir. 2009)). Nevertheless, this court "will exercise pendent

appeal jurisdiction over such an appeal only in the 'exceptional circumstance' in which

it is 'inextricably intertwined' with the qualified immunity appeal, which occurs when

the resolution of the qualified immunity claim 'necessarily resolves the pendent claims

as well.'" Id. (quoting Lockridge v. Bd. of Trs. of Univ. of Ark., 315 F.3d 1005, 1012

(8th Cir. 2003)).

In the present case, "[o]ur jurisdiction on this appeal is limited to the question

of qualified immunity, but the answer to that question necessarily includes a

determination whether any constitutional or statutory rights were violated in the first

place." Bankhead v. Knickerehm, 360 F.3d 839, 843 (8th Cir. 2004) (citing Lockridge,

315 F.3d at 1008). "Because [Burton's] Title VII and § . . . 1983 claims set forth

parallel, substantially identical, legal theories of recovery, we apply the same analysis

to each claim." Humphries v. Pulaski Cnty. Special Sch. Dist., 580 F.3d 688, 693 n.3

(8th Cir. 2009) (quotations and citations omitted). "The same McDonnell Douglas

burden-shifting analysis is applicable to all of [Burton's] discrimination claims,

including his Title VII claim against the [state defendants]. Lockridge, 315 F.3d at

1013.

-26-

Here, "our resolution of the qualified immunity issue" as to Burton's § 1983

race discrimination claim "necessarily resolves" the Title VII race discrimination

claim. Id. (quotation omitted). Therefore, we conclude that we may exercise pendent

jurisdiction over such claim. For the reasons set forth in Part II.A., supra, we hold that

the district court correctly denied summary judgment to the state defendants on

Burton's Title VII race discrimination claim. However, our resolution of the § 1983

retaliation claim against Chief Hedden does not "necessarily resolve" the Title VII

retaliation claim against the state defendants. We did not analyze the merits of the

§ 1983 retaliation claim due to Burton's failure to plead a violation of his First

Amendment rights. Therefore, we decline to exercise pendent jurisdiction over the

Title VII retaliation claim against the state defendants.

III. Conclusion

Accordingly, we affirm the district court's judgment in all respects, except we

reverse its denial of qualified immunity to Chief Hedden on Burton's § 1983 equal-

protection retaliation claim. We remand for further proceedings consistent with this

opinion.

______________________________

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