United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-3625

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Charles E. Gunter, Jr., *

*

Plaintiff – Appellant, *

*

v. *

*

William J. Morrison, Individually, and *

in his official capacity as Mayor of the * Appeal from the United States

City of St. James, Missouri; Louis * District Court for the Eastern 

Gorman; Daryl James, Adolph Mueller, * District of Missouri. 

individually and in their official *

capacities as Members of the Board *

of Public Works of the City of *

St. James, Missouri; City of St. James; *

Ira Wilson, *

*

Defendants– Appellees. *

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Submitted: April 13, 2007

Filed: August 15, 2007

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Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.

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BENTON, Circuit Judge.

Charles E. Gunter, Jr., is a city employee in St. James, Missouri. He accuses

Mayor William J. Morrison and the Board of Public Works of refusing to promote

him because he sued the City. The district court granted the defendants summary

judgment. This court reverses and remands.
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I.

Gunter has worked for the city Utilities Department for 27 years. In May 1999,

he bought land, outside the city, for residential development. Needing an access road,

he purchased an adjoining lot, Lot 33, inside the city. The City initially approved

Gunter’s plan to build a house and road on Lot 33, but later refused. After unfruitful

meetings and hearings, Gunter sued in May 2000.

In February 2002, the state trial court granted partial summary judgment to

Gunter, ordering “a preemptory writ of mandamus to force the City to approve the

final resubdivision plat” and “declaratory judgment . . . that Respondents had

complied with all relevant codes and statutes in order to legally subdivide Lot 33 and

that the City be compelled to approve the subdivision.” Gunter v. City of St. James,

91 S.W.3d 724, 725 (Mo. App. 2002). Because the trial court did not rule on Gunter’s

other claims (including damages, costs, and attorneys fees, a takings claim, and relief

under 42 U.S.C. § 1983), in December 2002 the City’s appeal was dismissed for lack

of a final judgment. Id. at 726-27. 

In April 2004, the trial court ruled for Gunter, awarding him $9,322 in damages

and $12,055 in attorneys fees and costs. The court of appeals upheld this judgment

against the City, based on “sufficient evidence supporting the trial court’s

determination that the City Council’s conduct relating to Respondents’ application for

re-subdivision was truly irrational.” Gunter v. City of St. James, 189 S.W.3d 667,

676 (Mo. App. 2006). Finding no “bad faith,” however, the court reversed as to the

individual members of the City Council. Id. at 677-78.

Meanwhile, in November 2003 Utilities Superintendent Jim Holt took a leave

of absence. The Mayor appointed Brian Cornick as Acting Superintendent; the

Utilities Board approved. Holt returned to work in March 2004; the Utilities Board

created the position of Assistant Superintendent. Gunter applied, along with Cornick

and Michael Licklider. At a meeting on March 8, the Board hired Cornick as
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Assistant Superintendent. When Holt retired in May 2005, the Board hired Licklider

as Superintendent; Gunter, Cornick, and one other person also applied.

Gunter claims he was the most qualified applicant for both positions, but was

rejected because of his ongoing lawsuit against the City. A councilman testified he

overheard the Mayor declare after a council meeting there was “no way in hell that

Charlie Gunter was going to get that position.” Councilman David Watkins testified:

• The Mayor and other councilmen frequently referred to Gunter

“derogatorily,” as “an asshole, an SOB,” and that the Mayor called

Gunter a “shit disturber”

• Several other councilmen agreed that Gunter was not being

promoted because of his “wee-wee contest with the Mayor and

other issues”

• He once asked a councilman, “Has Charlie done something

wrong? Was there something wrong with his qualifications, or is

it this wee-wee contest with the Mayor?” The councilman said

“the real problem” was “the wee-wee contest with the Mayor”

• The “wee-wee contest” goes “back to the subdivision plat permit

issue that’s involving the first lawsuit”

Gunter himself avers that another councilman admitted to him, “I should have the

position of Assistant Superintendent, that I deserved it and that if I did not have the

lawsuit against the City that I would be the one being promoted.” The City contends

Gunter was passed over for legitimate reasons, which the Mayor and the Utility Board

have articulated.

“Summary judgment is appropriate when the evidence, viewed in a light most

favorable to the non-moving party, demonstrates that there is no genuine issue of

material fact, and that the moving party is entitled to judgment as a matter of law.”

Clark v. Kellogg Co., 205 F.3d 1079, 1082 (8th Cir. 2000); FED. R. CIV. P. 56(c).

“We review a district court’s grant of summary judgment de novo, drawing all

reasonable inferences, without resort to speculation, in favor of the non-moving

party.” Johnson v. Ready Mixed Concrete Co., 424 F.3d 806, 810 (8th Cir. 2005).
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II.

Gunter claims he was not promoted in retaliation for suing the City. The right

to petition the government – or to access the courts – is analyzed the same as the right

to free speech. See Hoffmann v. City of Liberty, 905 F.2d 229, 233 (8th Cir. 1990)

(“we need not determine if (or how) the petition clause is distinct from the speech

clause or whether Hoffmann’s grievance filing was an act of petition or of speech. As

either, it was an expression subject to the same first amendment analysis”). The

analysis is: Did the employee show (1) the employee did something that was speech

addressing a public concern, (2) the protected activity was a substantial or motivating

factor in the employer’s action against the employee; unless (3) the employer shows

it would have taken the same action absent the protected activity? See id. at 233. See

generally Connick v. Myers, 461 U.S. 138, 146, 151 (1983) (courts must examine

whether speech addresses a matter of public concern, and if so, balance the

employee’s right to free speech against the interests of the public employer). 

A.

The district court ruled that Gunter’s lawsuit “was motivated solely by selfinterest,” and thus that he did not show his lawsuit addressed a matter of public

concern. Connick makes clear, however, that whether “an employee’s speech

addresses a matter of public concern must be determined by the content, form, and

context of a given statement, as revealed by the whole record.” See Hoffmann, 905

F.2d at 233, quoting Connick, 461 U.S. at 148. 

Viewing the facts favorably to Gunter, the record as a whole reveals that his

lawsuit addressed a matter of public concern. As to content, his state-court lawsuit

resulted in a judgment that over a period of some twelve months, he presented to key

city agencies, including the city council, various proposals – all of which were

arbitrarily and capriciously rejected. See Gunter, 189 S.W.3d at 670. The form of the

speech was a (successful) lawsuit – the most formal method of speech. See Harrison

v. Springdale Water & Sewer Com’n, 780 F.2d 1422, 1428 (8th Cir. 1986) (“state
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officials may not take retaliatory action against an individual designed either to punish

him for having exercised his constitutional right to seek judicial relief or to intimidate

or chill his exercise of that right in the future” ). The context of the dispute was

known in the community and written about in the local newspaper. The state court of

appeals ultimately found sufficient evidence that the City’s conduct was “truly

irrational.” See Gunter, 189 S.W.3d at 676; see generally Powell v. Johnson, 405

F.3d 652, 655 (8th Cir. 2005) (plaintiff’s nonfrivolous lawsuits alleging wrongdoing

by Sheriff addressed matters of public concern). 

The second step in the Connick analysis “involves balancing the employee’s

right to free speech against the interests of the public employer.” See Washington v.

Normandy Fire Protection Dist., 272 F.3d 522, 526 (8th Cir. 2001), citing Pickering

v. Board of Educ., 391 U.S. 563, 568 (1968); see also Sparr v. Ward, 306 F.3d 589,

594 (8th Cir. 2002), citing Connick, 461 U.S. at 148 n.7 (“Both parts of the

Connick-Pickering inquiry are questions of law for the court to decide”). The City

“must demonstrate with specificity that the speech created disharmony in the

workplace, impeded the plaintiff’s ability to perform his duties, or impaired working

relationships with other employees.” Washington, 272 F.3d at 527, quoting Sexton

v. Martin, 210 F.3d 905, 913 (8th Cir. 2001).

The City argues that the “fact that Appellant previously sued the City can

certainly be seen as an impediment to the efficient operations of the functions of the

City.” The City presents no evidence that Gunter’s lawsuit created disharmony in the

workplace, impeded Gunter’s ability to perform his duties, or impaired working

relationships with other employees. See Lindsey v. City of Orrick, __ F.3d __ , No.

06-3299, slip op. at 10 (8th Cir. filed June 26, 2007) (“Mere allegations the speech

disrupted the workplace or affected morale, without evidentiary support, are

insufficient”). The evidence that (at least) the Mayor disliked Gunter is not enough

to show impairment of working relationships with other employees. See id. at 10-11

(“Even if the Council members disliked Lindsey, this is not enough to show . . . such

dislike impaired his working relationship with these individuals”). 
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B.

As to whether the lawsuit caused denial of the promotions, the City says Gunter

“has no evidence that actions were taken against him because of his first lawsuit, or

that he would have received the promotion ‘but for’ his first lawsuit.” The City also

contends that it would have taken the same actions on the promotions absent Gunter’s

lawsuit. 

On the contrary, taking the evidence most favorably to Gunter, there is evidence

– comments allegedly made by the Mayor and several councilmen – that he was

denied the promotion only because he sued the City. The City offers interpretations

of these comments and alleges legitimate reasons for not promoting him. These

arguments involve questions of fact that exceed our limited scope of review. See

Gordon v. City of Kansas City, 241 F.3d 997, 1003 (8th Cir. 2001) (“While the

Connick-Pickering balancing test presents a question of law for the courts to decide,

any underlying facts that are material and in genuine dispute must be submitted to a

fact finder”); Cox v. Miller County R-I Sch. Dist., 951 F.2d 927, 931 (8th Cir. 1991)

(“Whether protected conduct was a substantial or motivating factor in an employment

decision is a question of fact”). 

III.

The district court granted summary judgment on Gunter’s civil conspiracy

claim. In order to prevail on a section 1983 civil conspiracy claim, a plaintiff must

show, “that the defendant conspired with others to deprive him or her of a

constitutional right; that at least one of the alleged co-conspirators engaged in an overt

act in furtherance of the conspiracy; and that the overt act injured the plaintiff.” See

Askew v. Millerd, 191 F.3d 953, 957 (8th Cir. 1999). Viewing the record favorably

to Gunter, several defendants conspired to retaliate against Gunter for suing the City;

the City denied him the promotion; and he was injured as a result. “Conduct that

retaliates against the exercise of a constitutionally protected right is actionable, even

if the conduct would have been proper if motivated by a different reason.” Nei v.
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Dooley, 372 F.3d 1003, 1007 (8th Cir. 2004). Gunter’s civil conspiracy claim should

be allowed to proceed.

IV.

The district court found that the Mayor and the Board members are entitled to

qualified immunity. This court “review[s] the district court’s conclusion on the

qualified immunity issue de novo . . . look[ing] at the record in the light most

favorable to the party opposing the motion, drawing all inferences most favorable to

that party.” Burnham v. Ianni, 119 F.3d 668, 673 (8th Cir. 1997) (en banc).

The “threshold question” is: “Taken in the light most favorable to the party

asserting the injury, do the facts alleged show the officer’s conduct violated a

constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001). If no constitutional

right has been violated, then the qualified immunity analysis ends. But “if a violation

could be made out on a favorable view of the parties’ submissions, the next, sequential

step is to ask whether the right was clearly established.” Id. The limits of qualified

immunity are defined by “the objective legal reasonableness of an official’s acts.”

Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). In other words, “[t]he contours of

the right must be sufficiently clear that a reasonable official would understand that

what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640

(1987).

Here, the district court found that the defendants were “entitled to qualified

immunity because their alleged actions did not violate a constitutional right.” Gunter

is the party asserting the injury and opposing the motion. Taken most favorably to

him, the facts alleged show that the defendants retaliated against him for suing the

City, a violation of his constitutional right. “An individual is entitled to ‘free and

unhampered access to the courts,’” because “access to the courts is a fundamental

right of every citizen.” Harrison, 780 F.2d at 1427-28. The question is whether this

right was clearly established.
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“The relevant, dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. “The issue is not

whether the defendant acted wrongly, but whether reasonable persons would know

they acted in a manner which deprived another of a known constitutional right.”

Herts v. Smith, 345 F.3d 581, 585 (8th Cir. 2003), quoting Sparr v. Ward, 306 F.3d

589, 593 (8th Cir. 2002). 

In this case, a reasonable official would have known that refusing to promote

Gunter because he sued the City violated his right to access the courts. This right was

clearly established. See, e.g., Zar v. S.D. Bd. of Exam’rs of Psychologists, 976 F.2d

459, 465 (8th Cir. 1992) (“A person’s constitutional right of access to the courts

cannot be impaired by threats or harassment in retaliation for filing lawsuits”); In re

Workers’ Comp. Refund, 46 F.3d 813, 822 (8th Cir. 1995) (“This right of court

access cannot be impaired, either directly or indirectly”); Scheeler v. City of St.

Cloud, 402 F.3d 826, 830 (8thCir. 2005) (“The right of access to the courts is wellestablished”); Wilson v. Northcutt, 441 F.3d 586, 592 (8th Cir. 2006) (citing Harrison

to show “it is clearly established that a government official may not ‘punish [a citizen]

for having exercised [her] constitutional right to seek judicial relief’”).

The Mayor and the Board members are not entitled to qualified immunity. 

V.

The judgment of the district court is reversed, and the case is remanded.

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