United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 99-3414

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Darwin Anderson and *

Gregory Fisk, *

*

Appellants, *

*

v. *

*

State of Nebraska, Department *

of Public Institutions/Lincoln *

Regional Center; Jai Sookram, *

Individually and in His Official * Appeal from the United States

Capacity; Rose Kaufman, * District Court for the District

Individually and in Her Official * of Nebraska.

Capacity; Melinda White, *

Individually and in Her Official * [UNPUBLISHED]

Capacity; Pat Mulvaney, *

Individually and in Her Official *

Capacity; and Bill H. Zinn, Individually *

and in His Official Capacity, *

*

Appellees. *

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Submitted: June 13, 2000

Filed: July 20, 2000

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Before BOWMAN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.

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1The Honorable David L. Piester, United States Magistrate Judge for the District

of Nebraska, sitting by consent of the parties. See 28 U.S.C. § 636(c)(1); see also

Fed. R. Civ. P. 73(a).

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PER CURIAM.

Darwin Anderson and Gregory Fisk, who were employed as security specialists

by the State of Nebraska at the Lincoln Regional Center (LRC), were charged with

caring for patients commonly known as the criminally insane. After one such patient

escaped, Messrs. Anderson and Fisk's employment was terminated. They then brought

this action, claiming that they were fired on account of their sex, in violation of Title

VII of the Civil Rights Act of 1964, see 42 U.S.C. § 2000e-2(a)(1), and the equal

protection clause of the fourteenth amendment; that they were not reinstated to their

jobs in retaliation for having complained that they were discharged in violation of Title

VII, see 42 U.S.C. § 2000e-3(a); and that they were fired in violation of their first

amendment rights. After a four-day trial, the magistrate judge1 granted the defendants'

motion for judgment as a matter of law, see Fed. R. Civ. P. 50(a), on all claims. The

plaintiffs appeal and we affirm.

The plaintiffs' sex discrimination claim was grounded on the assertion that a

female security specialist whose patient had escaped while he was in her charge had

not been disciplined at all, while they were terminated in what were for all practical

purposes the same circumstances. We are, first of all, not at all certain that proof of a

single incident of a same or similar character involving a person of the opposite sex is

sufficient to raise an inference of sex discrimination in violation of Title VII or the

equal protection clause. In any event, however, as the magistrate judge pointed out,

in this case the plaintiffs were not similarly situated to the female security specialist to

whom they wish to be compared. The plaintiffs failed to keep their patients in view

while they were outside on a smoking break, as they were required to do, and they also

failed to make the required head count when patients left the ward and returned to it.
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The female security specialist, on the other hand, had kept her patient in full view and

had reported his escape immediately after he had climbed a wall. There was,

moreover, no substantial evidence that she had violated any rule of the LRC that

allowed her patient to effect his escape. The plaintiffs' sex discrimination claim

therefore fails for lack of proof.

The plaintiffs' retaliation claim was that they were not reinstated to their jobs

because they had complained to the Equal Employment Opportunity Commission that

they were discharged on account of their sex, see 42 U.S.C. § 2000e-3(a), § 2000e-5.

In order to avoid judgment as a matter of law on this claim, the plaintiffs' proof must,

of course, raise an inference that some causal connection existed between their

complaint to the EEOC and the LRC's failure to reinstate them. Here, that proof is

simply lacking. The plaintiffs point to the fact that a third complainant in this suit, one

Manual Gamez, who did not file a complaint with the EEOC, was reinstated to his job,

and the plaintiffs were not. But the defendants gave Mr. Gamez his job back because

he pursued his administrative appeals and the Nebraska State Personnel Board ordered

his reinstatement. The plaintiffs, by contrast, abandoned their bid for reinstatement at

an early point in the administrative process. As the magistrate judge noted, moreover,

there was no evidence that the plaintiffs ever asked the LRC for reinstatement

thereafter.

We are likewise of the view that the magistrate judge did not err in granting

judgment to the defendants on the first amendment claim. There was a great deal of

evidence that the plaintiffs and others engaged in pointed discussions with the

defendants concerning a change in the LRC's smoking policy. After a careful reading

and consideration of the record, however, we agree entirely with the magistrate judge

that the matters under discussion were not matters of public concern, as the relevant

cases define that term, and so the plaintiffs failed to make out a submissible case on

their first amendment claim. The plaintiffs' criticism of the new policy centered almost

entirely on its supposed risks to the health and safety of the patients and staff, and thus
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did not relate to some "matter of political, social, or other concern to the community,"

Connick v. Myers, 461 U.S. 138, 146 (1983). There was, it is true, some testimony

about the increased danger of escapes that the new policy might create, and such a risk

might well qualify as a matter of public concern; but that testimony was minimal and

it came from a complainant who has not appealed. In addition, such concerns as were

expressed occurred in a private forum, not a public one, a circumstance that we have

held is relevant in deciding that the first amendment does not protect a public employee

from suffering adverse consequences for speaking out. See Bausworth v. Hazelwood

School District, 986 F.2d 1197, 1198-99 (8th Cir. 1993). In the circumstances, we

think that the magistrate judge quite rightly entered judgment against the plaintiffs on

their first amendment claim.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.