Bernard Jones v. Rick McNeese

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 12-2696

___________________________

Bernard Jones; Alcohol and Drug Counseling Services, LLC; Healing Circle

Recovery Community, Inc.

lllllllllllllllllllll Plaintiffs - Appellees

v.

Rick McNeese, Dr., Nebraska Department of Correctional Services, Assistant

Administrator of Behavioral Health-Substance Abuse, Individually

lllllllllllllllllllll Defendant - Appellant

____________

Appeal from United States District Court

for the District of Nebraska – Lincoln

____________

Submitted: May 16, 2013

Filed: March 26, 2014

____________

Before SHEPHERD, BEAM, and MELLOY, Circuit Judges.

____________

MELLOY, Circuit Judge.

This 42 U.S.C. §§ 1981 and 1983 lawsuit is before the Court on interlocutory

appeal for a second time after we remanded the case for an additional consideration

of the defendant's claim to qualified immunity. The district court determined on

remand that the defendant is not entitled to qualified immunity on any ground. We

reverse.

I. Background

A. Facts

Bernard Jones, who is African American, was employed as a substance-abuse

counselor by the Nebraska Department of Correctional Services (NDOC) from 1991

to 2007. While on injury leave from his job at NDOC in 1998 and 1999, Jones

completed a practicum at First Step Recovery, Inc. ("First Step"), a privately owned

substance-abuse rehabilitation facility that coordinates with the State of Nebraska to

provide treatment services to persons on probation and parole. First Step is wholly

owned by Dianne McNeese, Dr. Richard McNeese's ("Dr. McNeese") wife. Dr.

McNeese was Assistant Administrator of Behavioral Health–Substance Abuse at

NDOC from July 2005 until he resigned in October 2009. During his Assistant

Administrator tenure, Dr. McNeese also worked as a consulting psychologist at First

Step.

When Jones completed his practicum in 1999, Dr. McNeese offered to hire

Jones to work part-time at First Step in addition to working at NDOC. Jones declined

Dr. McNeese's offer because he perceived it to be racially motivated. Specifically,

Jones testified that Dr. McNeese wanted to hire him at First Step to "work with the

minorities, in particular the blacks," so that Jones could "attract more black clients . . .

because that's a revenue source that [Dr. McNeese] [wanted] to get."

In 2000, Dr. McNeese again approached Jones about working part-time for

First Step. This time, Dr. McNeese told Jones that he could work for First Step but

practice at another substance-abuse treatment facility, Antlers, which had partnered

with First Step in bidding on a $14 million federal contract. Jones accepted the offer

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to work for First Step by way of Antlers because he would have the opportunity to

work alongside Ron Namuth, the owner of Antlers and a person whom Jones

described as a "great counselor" and perceived as having a "tremendous reputation."

Between six and nine months after Jones started working at Antlers, Dr.

McNeese and Namuth had what Jones characterized as a "falling out." At that time,

Namuth offered to buy out Jones's contract as an independent contractor with First

Step if Jones agreed to work for Antlers and cease affiliating with First Step. Jones

accepted Namuth's offer, cut all ties with First Step,1 and continued working at

Antlers until January 2008.

Throughout Jones's part-time employment with First Step and Antlers, Jones

continued working full-time at NDOC until he retired in 2007. In 2005 or 2006,

Jones approached Dr. McNeese about a concept that Jones was pursuing called

"Healing Circle Recovery Community."2 Jones intended to operate Healing Circle

as a treatment center while employed at NDOC, but testified in his deposition that Dr.

McNeese told him that he would be fired from NDOC if he did so. Dr. McNeese

denies making any such statement, but admits that he and two other NDOC

employees—one Caucasian and the other Pakistani—worked at First Step while still

employed by NDOC. Jones subsequently approached NDOC Deputy Director Larry

Wayne—who at all times occupied a position in NDOC superior to both Jones and

Dr. McNeese—to discuss his proposal to perform part-time work outside of NDOC

at Healing Circle. Wayne directed Jones to ask the NDOC legal department if there

1

Jones testified that during the time he was affiliated with First Step but

working at the Antlers facility, "the only involvement [he] had with McNeese" was

that Dr. McNeese paid him.

2

Jones incorporated Healing Circle Recovery Community, Inc. ("Healing

Circle") in 2004, but did not further pursue operating Healing Circle until he

approached Dr. McNeese in 2005 or 2006.

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would be any conflict of interest, and the legal department said there would not be.

The legal department concluded there was no conflict of interest because Healing

Circle, as proposed by Jones, would be a women-only treatment center whereas Jones

only worked with men at NDOC.

After retiring from NDOC in 2007, Jones also established Alcohol and Drug

Counseling Services, LLC (ADCS), an outpatient treatment center for men only.

ADCS and Healing Circle each began accepting clients in 2008, and each received

payment for treatment services to parolees and persons on probation through different

state-funded voucher systems. Healing Circle received vouchers primarily from the

Nebraska Office of Probation, while ADCS received vouchers directly from NDOC.3

ADCS received ninety-nine percent of its funding from the NDOC voucher system,

and the NDOC vouchers to ADCS made up more than one-fourth of all distributed

NDOC vouchers.

Dr. McNeese oversaw the NDOC voucher system from October 2008 to

October 2009. Although the NDOC voucher system draws from a different pool of

state funds than the Office of Probation voucher system, NDOC made arrangements

for the Office of Probation to administer the NDOC vouchers. Under each respective

voucher system, parolees and persons on probation are permitted to choose their own

treatment facility, provided that the facility is on a list of NDOC-approved treatment

providers. ADCS was on this list until June 30, 2009, when Dr. McNeese suspended

ADCS from the list.

On June 29, 2009, Dr. McNeese learned from a supervisor of chemical

dependency counselors at the NDOC that, the week before, Jones had visited inmates

at a correctional facility in Lincoln, Nebraska to promote ADCS's treatment services.

During the visit, Jones distributed forms to the inmates that many of them signed,

3

Healing Circle did receive either one or two vouchers directly from NDOC.

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thereby agreeing to utilize ADCS's outpatient treatment services upon their release.

In an email dated June 29 and sent to various NDOC and Office of Probation

administrators, Dr. McNeese characterized this practice as "highly inappropriate" and

a "very serious violation" that, if true, "calls for immediate action due to [an] ethical

breach." The email read as follows:

Here's the latest information on a practice I see as highly

inappropriate. I continue to be concerned that Mr. Jones

uses his knowledge of DCS and previous professional

relationships to obtain access to the inmate population,

misrepresent DCS support of the program, and go so far as

to "manipulate" inmates into signing an agreement. I think

this practice has the potential of creating an inappropriate

power relationship in which he has perceived power over

inmates as clients, including the implied power of

supporting them with the Parole Board (and presumably

the implied opposite of not supporting them).

If [the] report is accurate, I see this as a very serious

violation that calls for immediate action due to the ethical

breach. . . . I also see this as something that may need

attention from Legal.

On June 30, Dr. McNeese emailed Jones notifying Jones that he was suspending

ADCS from the NDOC approved-provider list "pending further investigation."4 Dr.

4

It is unclear whether Healing Circle was also suspended from the approved-

provider list. In the order on appeal, the district court stated that "Jones and his

businesses had been suspended from the [NDOC] voucher program and were no

longer on the provider list." Jones v. McNeese, 883 F. Supp. 2d 897, 906 (D. Neb.

2012) ("Jones III") (emphasis added). We find nothing in the record to indicate that

Healing Circle was ever officially suspended from the approved-provider list. We

note, however, that Dr. McNeese's June 29 and June 30 emails copied Catherine

Gibson-Beltz, who was involved in distributing the Office of Probation vouchers that

were the primary funding source for Healing Circle, and Deb Minardi, the Deputy

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McNeese testified in his deposition that he suspended ADCS because he believed that

Jones violated certain confidentiality provisions of the Health Insurance Portability

and Accountability Act (HIPAA). The NDOC legal department later informed Dr.

McNeese that Jones's visit to the Lincoln correctional facility was a "non-issue."

After learning that there was no HIPAA violation, however, Dr. McNeese did not

reinstate ADCS on the approved-provider list. Dr. McNeese said later that the failure

to do so was a "mistake on my part."

Around the same time that ADCS and Healing Circle were suspended from the

approved-provider list, NDOC was soliciting bids from treatment facilities for a

contract to become the sole provider of outpatient services for parolees and persons

on probation; the contract was worth $200,000. Prior to ADCS's and Healing Circle's

suspensions, ADCS and Healing Circle had received more NDOC vouchers than any

other group of treatment facilities owned by and/or affiliated with a single participant

in the NDOC voucher system; First Step had received the second-most vouchers.

Because ADCS—and likely Healing Circle5—were suspended from the approved-

provider list, they were also in effect precluded from bidding on and being awarded

the sole-provider contract because one criteria was that the bidder be a current

voucher recipient.

NDOC issued a letter of intent to award the sole-provider contract to First Step

on August 25, 2009. On August 26, NDOC received a notice of grievance from an

unsuccessful bidder and subsequently rescinded its letter of intent to contract with

Probation Administrator of the Nebraska Supreme Court. Additionally, as mentioned

above, NDOC made arrangements for the Office of Probation to administer the

NDOC vouchers. So while Healing Circle might not have been officially suspended

from the approved-provider list, Dr. McNeese's emails that copied Gibson-Beltz and

Minardi may have effected a de facto suspension of Healing Circle by way of its

association with Jones.

5

See footnote 4, supra.

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First Step. NDOC then issued a second letter of intent to contract with a different

treatment facility. On August 31, NDOC sent a third letter that rescinded all

previously issued letters of intent and placed the NDOC sole-provider contract on

hold.

Shortly after the August 26 grievance was filed, officials placed Dr. McNeese

on unpaid administrative leave due to a conflict of interest. Although Dr. McNeese

did not participate in evaluating the bid proposals to become NDOC's sole provider

of treatment services, he was deemed "instrumental" in developing the criteria and the

weighting system used to evaluate the proposals. Further, Dr. McNeese directly

supervised the individuals who were responsible for evaluating the proposals, and he

provided the written justification for initially awarding the contract to First Step. Dr.

McNeese disclosed that his wife owned First Step, but failed to disclose the extent of

he and his wife's financial interest in the entity as required by Nebraska law and

NDOC Administrative Regulations. Dr. McNeese resigned from NDOC on October

8, 2009.

As a result of ADCS and Healing Circle being suspended from the NDOC

approved-provider list, and thus losing their primary funding sources, ADCS closed

in July or August 2009 and Healing Circle closed in October 2009. Jones eventually

filed for personal bankruptcy due to his inability to make payments on loans that he

took out in connection with ADCS and Healing Circle.

B. Procedural History

Jones, ADCS, and Healing Circle (collectively, "Plaintiffs") sued Dr. McNeese

pursuant to 42 U.S.C. §§ 1981 and 1983 on December 28, 2009. The complaint

alleges that Dr. McNeese treated Plaintiffs disparately because Jones is African

American. Jones claims that Dr. McNeese's threat to fire him if he worked part-time

at Healing Circle was based on Jones's race because non-African American NDOC

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employees were permitted to "moonlight" at First Step. Jones also claims that Dr.

McNeese, in his role as Assistant Administrator at NDOC, made statements to third

parties that defamed Jones's character, that resulted in "loss of [Jones's] employment

opportunities, loss of two viable businesses," and that "prevented [Jones] from

pursuing [his] profession." Specifically, Jones testified in his deposition that Dr.

McNeese told other State of Nebraska employees that Jones had "done fraudulent

work," "gotten information from inmates illegally," and "entered corrections facilities

illegally." Additionally, Jones testified that Dr. McNeese made statements to an

administrator at a local college that Jones was being investigated for fraud. As a

result, according to Jones, the college stopped sending students to Healing Circle to

intern.

Dr. McNeese moved to dismiss the claims against him based on qualified

immunity, and later moved for summary judgment on the same basis. The district

court denied Dr. McNeese's motion for summary judgment. Jones v. McNeese,

No. 4:09CV3264, 2011 WL 2200763, at *2 (D. Neb. June 6, 2011) ("Jones I").

Dr. McNeese appealed the district court's denial of summary judgment, and this Court

vacated the denial and remanded the case "for a more detailed consideration and

explanation of the validity, or not, of the defendant's claim to qualified immunity."

Jones v. McNeese, 675 F.3d 1158, 1163 (8th Cir. 2012) ("Jones II").

On remand, the district court again determined that Dr. McNeese was not

entitled to qualified immunity on any ground. Jones III, 883 F. Supp. 2d at 914–15.

Dr. McNeese subsequently filed this interlocutory appeal in which he raises two

arguments. First, Dr. McNeese claims that the district court erred by adopting Jones's

version of the facts and by failing to employ the proper standard to evaluate his claim

to qualified immunity on summary judgment. Second, Dr. McNeese argues that,

applying the proper standard, he is immune from suit.

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II. Analysis

"Qualified immunity 'is an immunity from suit rather than merely a defense to

liability.' It entitles an individual to not be subject to trial or the other burdens of

litigation and 'is effectively lost if a case is erroneously permitted to go to trial.'"

Solomon v. Petray, 699 F.3d 1034, 1038 (8th Cir. 2012) (quoting Mitchell v. Forsyth,

472 U.S. 511, 526 (1985)). An individual is only denied qualified immunity if the

answers to the following two questions are yes: "(1) whether the plaintiff has shown

the violation of a statutory or constitutional right, and (2) whether that right was

clearly established at the time of the alleged misconduct. We retain discretion to

decide which of the two questions to answer first." Heartland Acad. Cmty. Church

v. Waddle, 595 F.3d 798, 805 (8th Cir. 2010).

This Court reviews de novo the district court's denial of summary judgment

based on qualified immunity. Bearden v. Lemon, 475 F.3d 926, 929 (8th Cir. 2007).

In so doing, we consider the evidence presented in a light most favorable to the

nonmoving party. Id. See also Scott v. Harris, 550 U.S. 372, 378 (2007) ("When [the

parties' versions of events differ substantially], courts are required to view the facts

and draw reasonable inferences 'in the light most favorable to the party opposing the

[summary judgment] motion.' In qualified immunity cases, this usually means

adopting . . . the plaintiff's version of the facts." (second alteration in original)

(quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam))).

However, "[w]hile we review the record in the light most favorable to . . . the

non-moving party, we do not stretch this favorable presumption so far as to consider

as evidence statements found only in inadmissible hearsay." Mays v. Rhodes, 255

F.3d 644, 648 (8th Cir. 2001) (emphasis added). See also Moore v. Indehar, 514 F.3d

756, 758 (8th Cir. 2008) ("[I]n construing the record, the 'court may consider only the

portion of the submitted materials that is admissible or useable at trial.'" (quoting

Walker v. Wayne County, 850 F.2d 433, 434 (8th Cir.1988))).

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A. Jurisdiction

Before turning to the merits, we first address our jurisdiction. In Mitchell, the

Supreme Court articulated the role of appellate courts in reviewing the denial of

summary judgment based on qualified immunity:

An appellate court reviewing the denial of the defendant's

claim of [qualified] immunity need not consider the

correctness of the plaintiff's version of the facts, nor even

determine whether the plaintiff's allegations actually state

a claim. All it need determine is a question of law: whether

the legal norms allegedly violated by the defendant were

clearly established at the time of the challenged actions or,

in cases where the district court has denied summary

judgment for the defendant on the ground that even under

the defendant's version of the facts the defendant's conduct

violated clearly established law, whether the law clearly

proscribed the actions the defendant claims he took.

472 U.S. at 528. The Court "emphasize[d] . . . that the appealable issue is a purely

legal one: whether the facts alleged . . . support a claim of violation of clearly

established law." Id. at 528 n.9.

Here, Plaintiffs contend that Dr. McNeese's argument on appeal "is not based

on an abstract issue of law," but instead is "one of fact." Plaintiffs are correct that

throughout his brief, Dr. McNeese argues that the district court improperly denied

summary judgment to him based on erroneous factual findings. These evidentiary

challenges asserted by Dr. McNeese are outside the scope of our review on appeal.

See Kahle v. Leonard, 477 F.3d 544, 549 (8th Cir. 2007) ("In [an appeal from denial

of qualified immunity], jurisdiction does not extend to issues of 'evidence sufficiency,

i.e., which facts a party may, or may not, be able to prove at trial.'" (quoting Johnson

v. Jones, 515 U.S. 304, 313 (1995) (internal quotation marks omitted))).

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Nevertheless, "a determination that there are controverted issues of material

fact . . . does not mean that every . . . denial of summary judgment is nonappealable."

Behrens v. Pelletier, 516 U.S. 299, 312–13 (1996) (citation omitted). "[S]ummary

judgment determinations are appealable when they resolve a dispute concerning an

'abstract issu[e] of law' relating to qualified immunity—typically, the issue [of]

whether the federal right allegedly infringed was 'clearly established.'" Id. at 313

(second alteration in original) (citations omitted). Here, in addition to objecting to

the district court's factual findings, Dr. McNeese also challenges the district court's

determinations that he violated Jones's constitutional rights and that such rights were

clearly established at the time of the alleged violations. We are thus satisfied that we

have jurisdiction over the interlocutory appeal.6

B. Merits

Jones alleges that Dr. McNeese violated his rights pursuant to the Fourteenth

Amendment's Equal Protection Clause and Due Process Clause, respectively. We

address each claim below.

1. Equal Protection

a. Racial Discrimination

Jones grounds his equal-protection claims in 42 U.S.C. §§ 1981 and 1983.

Section 1981 is limited to race and provides in relevant part that "[a]ll persons . . .

shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white

citizens." 42 U.S.C. § 1981(a). Jones alleges that because he is African American,

6

Accordingly, Plaintiffs' motion to dismiss the appeal for lack of jurisdiction

and Dr. McNeese's motion to strike Plaintiffs' dismissal motion as untimely filed are

denied.

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ADCS and Healing Circle were precluded from submitting bids for the NDOC

sole-provider contract and were thus discriminated against on account of Jones's race.

See Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006) (noting that "a

contractual relationship need not already exist[] because § 1981 protects the would-be

contractor along with those who already have made contracts"). Although § 1981

permits a cause of action against private actors, where, as here, a plaintiff brings a

claim pursuant to § 1981 against an individual who was acting under color of law, the

claim must be asserted through § 1983. Artis v. Francis Howell N. Band Booster

Ass'n Inc., 161 F.3d 1178, 1181 (8th Cir. 1998).

In support of his § 1981 claim, Jones points primarily to one instance of alleged

racial discrimination—the allegation that Dr. McNeese told Jones that Jones would

be fired if he formed and operated Healing Circle and worked there part-time while

still employed at NDOC. Jones asserts that because Dr. McNeese permitted two non-

African American counselors to "moonlight" at First Step while still employed at

NDOC, Dr. McNeese harbored a racial animus towards Jones and thus discriminated

against Jones, Healing Circle, and ADCS when he suspended the businesses from the

approved-provider list during the time that NDOC was accepting bids for the

sole-provider contract. Dr. McNeese maintains, however, that the suspension was

based on his perception of an alleged HIPAA violation.

Dr. McNeese asks this Court to employ the three-step burden-shifting standard

in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973). Under a

McDonnell Douglas analysis,

[a plaintiff] has the initial burden to establish a prima facie

case of discrimination. If [the plaintiff] establishes a prima

facie case, the burden shifts to [the defendant] to articulate

a legitimate, non-discriminatory reason for [the allegedly

unconstitutional] action. If [the defendant] articulates such

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a reason, the burden returns to [the plaintiff] to prove that

the proffered reason is pretextual.

Wimbley v. Cashion, 588 F.3d 959, 961 (8th Cir. 2009) (citations omitted).

Regardless of whether Jones meets his initial burden and Dr. McNeese fails to carry

his responsive burden, however, the "ultimate question" that remains is "whether the

employer engaged in intentional discrimination" on the stated basis. Rothmeier v.

Inv. Advisers, Inc., 85 F.3d 1328, 1334–35 (8th Cir. 1996). Thus, "proof that the

defendant's articulated explanation is false or incorrect does not, standing alone,

entitle the plaintiff to judgment; instead, the showing must be that the explanation is

a pretext for discrimination." Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 777

(8th Cir. 1995); see St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 n.4 (1993)

("Even though . . . rejection of the defendant's proffered reasons is enough at law to

sustain a finding of discrimination, there must be a finding of discrimination.").

Here, Jones has not put forth sufficient evidence to demonstrate that Dr.

McNeese's decisions to permit other employees to "moonlight" while employed at

NDOC, and later to suspend ADCS and Healing Circle from the approved-provider

list during the time that NDOC was accepting bids, were motivated by any racial

animus. Jones himself previously moonlighted at First Step while employed at

NDOC in 1998 and 1999 and at Antlers from 2000 through his retirement from

NDOC in 2007. Thus, even accepting the district court's finding that Dr. McNeese

was aware that there was no HIPAA violation, see Jones III, 883 F. Supp. 2d at 915,

there is no evidence to support the district court's findings that the adverse actions

against Healing Circle and ADCS were taken on account of Jones's race.7 See, e.g.,

7

Jones also points to one instance in which Dr. McNeese called Jones into his

office and asked Jones to help him assist in finding "people of color" to become

substance-abuse counselors. Jones testified that he perceived the comment to be

racist. However, such "[s]tray remarks are not sufficient to establish a claim of

discrimination." Clearwater v. Indep. Sch. Dist. No. 166, 231 F.3d 1122, 1126 (8th

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Twiggs v. Selig, 679 F.3d 990, 994–95 (8th Cir. 2012) ("Because [plaintiff] has failed

to offer evidence that could convince a reasonable jury that [defendants'] stated

reason for firing her was pretext for intentional discrimination, her claim fails as a

matter of law, and [the defendants] are entitled to qualified immunity."); Omni

Behavioral Health v. Miller, 285 F.3d 646, 655 (8th Cir. 2002) (affirming grant of

summary judgment to § 1983 defendant because the plaintiff's "evidence of

intentional [racial] discrimination [was] insufficient as a matter of law"). The fact

that Jones is African American appears to have been of no consequence as it related

to Dr. McNeese allegedly threatening to fire Jones if he were to operate Healing

Circle while still employed at NDOC. Rather, instead of race, the characteristic that

distinguishes Dr. McNeese's treatment of Jones from his treatment of the two non-

African American employees was the outside business for whom the other two

employees worked—First Step.8 In any event, for the above reasons, we reverse the

district court's judgment that Dr. McNeese is not entitled to qualified immunity on the

§ 1981 claim.

Cir. 2000) (internal quotation marks omitted); see, e.g., Simmons v. Oce-USA, Inc.,

174 F.3d 913, 915–16 (8th Cir. 1999) (terminated employee failed to establish causal

link between adverse employment action and one-time use of racial slur and racial

joke in the context of employment relationship, where the racial slur and racial joke

were made two years prior to the employee's termination).

8

In this regard, we note that the record could conceivably support a cause of

action predicated on some type of legal theory tethered to nepotism: that is, favoritism

toward Dr. McNeese's wife's business, First Step, and a desire to protect it from

competitors like Jones. Accord Backlund v. Hessen, 104 F.3d 1031, 1034 (8th Cir.

1997) ("[N]epotism in governmental hiring requires some measure of justification

before it can pass constitutional muster. Such justification must connect the

challenged hiring criterion to the capacity of the applicant to perform the duties of the

job applied for."). Plaintiffs never advanced such a theory for their equal protection

claim, though, and we decline to consider it for the first time in this appeal.

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2. Due Process

Plaintiffs also allege that Dr. McNeese violated their rights under the

Fourteenth Amendment's Due Process Clause. In particular, they claim that Dr.

McNeese made stigmatizing comments about Jones that deprived Jones of his liberty

interest to earn a living in his profession as a substance abuse counselor.

In Paul v. Davis, the Supreme Court made clear that injury to reputation alone

is not sufficient to state a § 1983 claim. 424 U.S. 693, 712 (1976) ("[I]nterest in

reputation . . . is neither 'liberty' nor 'property' guaranteed against state deprivation

without due process of law."). The Court intimated, however, that reputational harm

coupled with "some more tangible interests such as employment," can together be

"sufficient to invoke the procedural protection of the Due Process Clause." Id. at 701.

See, e.g., Owen v. City of Independence, Mo., 560 F.2d 925, 935 (8th Cir. 1977) ("In

determining whether a government employer has deprived its employee of a liberty

interest in the termination of employment, the crucial issue is whether the government

employer, in connection with the termination of government employment, including

a refusal to rehire or reemploy, makes a charge which might seriously damage the

employee's standing and reputation in the community."), vacated and remanded on

other grounds, 438 U.S. 902 (1978).

For a defamatory statement to be actionable under § 1983, it must go beyond

"alleging conduct [by the plaintiff] that fails to meet professional standards," Raposa

v. Meade Sch. Dist. 46-1, 790 F.2d 1349, 1354 (8th Cir. 1986). Rather, the statement

must "damage[] a person's standing in the community or foreclose[] a person's

'freedom to take advantage of other employment opportunities.'" Id. (quoting Bd. of

Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1972)). "The requisite stigma

has generally been found in cases in which [a government official] has accused the

[plaintiff] of dishonesty, immorality, criminality, racism, or the like." Shands v. City

of Kennett, 993 F.2d 1337, 1347 (8th Cir. 1993) (collecting cases).

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Although Paul's "stigma-plus" test arises most often in situations where the

plaintiff is (or was) a government employee, e.g., Brown v. Simmons, 478 F.3d 922,

923 (8th Cir. 2007), the liberty interest also extends to independent contractors.9 See,

e.g., Transco Sec., Inc. v. Freeman, 639 F.2d 318, 321 (6th Cir. 1981) ("While the

deprivation of the right to bid on government contracts is not a property interest . . . ,

the bidder's liberty interest is affected when that denial is based on charges of fraud

and dishonesty." (internal citation omitted)); see also Neu v. Corcoran, 869 F.2d 662,

667 (2d Cir. 1989) ("[Paul] did not say that 'employment' had to be government

employment.").

Here, Plaintiffs allege in their complaint, and Jones testified in his deposition,

that Dr. McNeese told third parties numerous stigmatizing comments about Jones.

To wit, Jones testified that Dr. McNeese told "numerous State of Nebraska

employees," as well as an administrator at a local college, that Jones was "under

investigation," that he "had done fraudulent work," that he "had stolen or gotten

information from inmates illegally," and that he "had entered correctional facilities

illegally." Jones III, 883 F. Supp. 2d at 906. On their face, such statements, if untrue,

appear to be sufficiently "stigmatizing" to satisfy Paul insofar as they relate to

"dishonesty, immorality, [and] criminality." Shands, 993 F.2d at 1347. Further,

Jones was removed from the voucher list—which effectively eviscerated his ability

to work in his chosen profession—so he could conceivably show a causal connection

between the alleged comments and Jones' inability to work in his chosen profession

going forward. See Raposa, 790 F.2d at 1354.

The problem for Jones, however, is that in the procedural posture of this

case—an appeal from a summary judgment order denying qualified immunity—Jones

9

We assume without deciding that ADCS's and Healing Circle's receipt of

vouchers was sufficient for Plaintiffs to be considered independent contractors.

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has not presented enough admissible evidence to go forward on his due process

claim. Specifically, Plaintiffs' assertions in their complaint and Jones's deposition

testimony about Dr. McNeese's alleged statements to third-parties are hearsay and

cannot be used to defeat a motion for a summary judgment. See F. R. Evid.

801(c)(1)–(2) ("'Hearsay' means a statement that . . . the declarant does not make

while testifying at the current trial or hearing; and a party offers [the statement] in

evidence to prove the truth of the matter asserted in the statement."); Brunsting v.

Lutsen Mountains Corp., 601 F.3d 813, 817 (8th Cir. 2010) (noting that "inadmissible

hearsay evidence cannot be used to defeat summary judgment"). Importantly,

whether or not McNeese's statements (e.g., that Jones was "under investigation" and

had done "fraudulent work") are true does not matter for the purposes of the hearsay

analysis on this issue. What matters is that Jones offers the third-parties' statements

for their truth—specifically, that McNeese said these things about Jones to them. The

third-parties' statements as described by Jones are hearsay, not within any exception,

and therefore are of no use to Plaintiffs in their efforts to defeat Dr. McNeese's

summary judgment motion. See Brunsting, 601 F.3d at 817.

Admissible evidence contained in the summary judgment record shows that Dr.

McNeese sent an internal memorandum to personnel in other state governmental

agencies, see supra note 4, alleging that Jones may have engaged in ethically

questionable conduct. Specifically, Dr. McNeese's June 29 email alleged that Jones's

visit to inmates at a prison was "a practice [Dr. McNeese] see[s] as highly

inappropriate" because it "has the potential of creating an inappropriate power

relationship in which [Jones] has perceived power over inmates as clients." Dr.

McNeese said that he viewed the visit as an "ethical breach." Jones was not made

aware of these allegations against him until Dr. McNeese sent Jones an email on June

30 suspending ADCS from the approved-provider list "[p]ending further

investigation."

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We conclude that the substance of these two emails, standing alone, does "not

create the level of stigma required to implicate a constitutionally protected liberty

interest." Shands, 993 F.2d at 1347. Dr. McNeese admits that the legal department

told him that Jones's visit to the prison was a "non-issue," but Dr. McNeese did not

describe them as such at the time he sent the emails and removed Jones from the

voucher list. In hindsight, Dr. McNeese may have overreacted to Jones's

conduct—conduct that the legal department found perfectly permissible.10 Dr.

McNeese admitted that he should have taken action to place Jones back on the list

after consulting the legal department; he called his failure to do so "a mistake." But

while the emails raised concerns about Jones's actions, they did not rise to the level

of constitutional stigma we have found in other cases. Compare Shands, 993 F.2d

at 1347 (finding insufficient stigma where a fire chief fired certain firefighters and

made public statements concerning the firefighters' "insubordination and

misconduct"), with Winegar v. Des Moines Indep. Cmty. Sch. Dist., 20 F.3d 895, 899

(8th Cir. 1994) (finding sufficient stigma where a school district leveled "allegations

of unjustified child abuse" against a school teacher).

Dr. McNeese received a report from a supervisor of substance abuse counselors

at NDOC that Jones had visited a prison facility to hand out fliers for ADCS. Dr.

McNeese forwarded this report, along with his "concerns," to other people involved

in the voucher system. He voiced his opinion that "he s[aw]" Jones's actions as

"highly inappropriate," and that he thought Jones's visits to the inmates "had the

potential of creating" appearances of impropriety. Dr. McNeese's analysis was

mistaken, and when the legal department did not find any wrongdoing with Jones's

conduct, Dr. McNeese could have, and probably should have, sent a follow-up email.

Here, it was Dr. McNeese's inaction that further harmed Jones; however, without

10

The record provides one explanation for Dr. McNeese's overreaction: his

interest in protecting First Step (his wife's business) from competitors. See footnote

8, supra.

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additional evidence, we decline to draw any inferences from Dr. McNeese's "mistake"

in not placing Jones back on the approved-provider list. In the final analysis, Dr.

McNeese harmed Jones's ability to pursue his chosen profession. Even so, the

evidence presented is not enough to show that Dr. McNeese stigmatized Jones to such

a degree as to violate the Constitution. See, e.g., Winegar, 20 F.3d at 899 ("An

employee's liberty interests are implicated where the employer levels accusations at

the employee that are so damaging as to make it difficult or impossible for the

employee to escape the stigma of those charges.").11 As Jones cannot demonstrate a

constitutional violation, Dr. McNeese is necessarily entitled to qualified immunity.

See White v. Smith, 696 F.3d 740, 753 (8th Cir. 2012) (noting that both prongs of the

qualified immunity analysis must be met to defeat qualified immunity).

III. Conclusion

For the reasons set forth above, we hold that Dr. McNeese is entitled to

qualified immunity on Jones's §§ 1981 and 1983 claims. We reverse the judgment

of the district court with instructions to dismiss the complaint.

______________________________

11

Because we hold that Plaintiffs have not produced sufficient evidence to

establish constitutional stigma, we do not address whether Jones was unable to pursue

his chosen profession generally because of Dr. McNeese's statements. See Habhab

v. Hon, 536 F.3d 963, 968 (8th Cir. 2008).

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