United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 06-3349

___________

Percy Green, II, *

*

Plaintiff/Appellant, *

* 

v. * 

* 

City of St. Louis, Missouri; St. Louis, * Appeal from the United States

Development Corporation; Francis * District Court for the Eastern

Slay, as Mayor and individually; Jeff * District of Missouri.

Rainford, officially and individually; *

Barbara Geisman, individually and *

officially; Rita Kirkland, individually *

and officially; Phillip Hoge, officially *

and individually, *

*

Defendants/Appellees. *

___________

Submitted: May 14, 2007

Filed: November 2, 2007

___________

Before LOKEN, Chief Judge, JOHN R. GIBSON, and WOLLMAN, Circuit Judges.

___________

JOHN R. GIBSON, Circuit Judge.
1

The Honorable Jean C. Hamilton, United States District Judge for the Eastern

District of Missouri.

-2-

Percy Green appeals from the district court's1

 entry of partial summary

judgment against him and its entry of judgment on a jury verdict against him on the

claims that remained for trial. Green argues that the district court erred in entering

summary judgment against him on his claim under 42 U.S.C. §§ 1981, 1981a, and

1983 for refusing to hire him in retaliation for exercise of his First Amendment rights

and on his claim under 31 U.S.C. § 3730(h) for retaliation against a whistleblower.

He also contends that the district court erred in excluding evidence of statements made

after he was terminated and in instructing the jury. We affirm.

Green's claim arises out of the reorganization of the City of St. Louis' program

for certification of businesses as Minority Business Enterprises or Women's Business

Enterprises. In 1993, Green was hired by St. Louis Development Corporation, a nonprofit organization, which administered the City's Women and Minority Business

Enterprise Participation Program. Green was named Director of the certification

program. The City also provided certification of Women and Minority Business

Enterprises through another office, the Lambert-St. Louis Airport's Contract

Administration/Disadvantaged Business Enterprise Office. 

Shortly after Mayor Francis Slay took office in April 2001, his Special

Assistant Rita Kirkland conducted a review of the City's Women and Minority

Business Enterprise certification and compliance program. Kirkland determined that

the functions performed by St. Louis Development Corporation's compliance and

certification program could be handled more efficiently and with fewer complaints by

the Airport's Disadvantaged Business Enterprise Office. After reviewing Kirkland's

report, Slay and his staff decided to transfer the functions performed by Green's office

to the Airport's office. On September 26, 2001, the St. Louis Development

Corporation eliminated its certification section, and Green lost his job. 
-3-

Green brought a three count complaint alleging two civil rights claims, each

alleging, inter alia, that he had been discriminated against by being laid off and not

rehired. He alleged that the defendants terminated his employment and refused to

rehire him in retaliation against him for exercising his First Amendment rights in

speaking out about women- and minority-owned business certification. The second

count alleged that he had been laid off and not rehired because he objected to

improper certification of businesses which were not truly owned by women or

minorities. He included a third count, which alleged retaliation for acting as a

whistleblower and sought recovery under 31 U.S.C. § 3730(h), the False Claims Act.

Green named as defendants Mayor Slay; Jeff Rainford, Chief Deputy Mayor; Barbara

Geisman, Assistant to the Mayor; Rita Kirkland, Special Assistant to the Mayor; St.

Louis Development Corporation and its executive director, Philip Hoge; and the City

of St. Louis. 

The defendants moved for summary judgment, which the district court granted

in part. First, the district court held that Green had not come forward with evidence

substantiating his claim that the defendants unlawfully failed to rehire him because he

never showed he had applied for any job after the lay-off, he offered no evidence as

to the qualifications of any job opening the City had, and he did not show the

qualifications of those hired. Green v. City of St. Louis, No. 4:05CV198 JCH, 2006

WL 1663439, at *3 (E.D. Mo. 2006).

Next, the district court considered Green's claim that he had been laid off in

retaliation for protesting the City's certification process. The court held that Green

had brought forth evidence that he had engaged in speech protected by the First

Amendment when he gave interviews to the newspaper protesting the City's policy of

granting reciprocal certification, in which businesses certified by certain other

agencies would automatically qualify for certification from the St. Louis Development

Corporation. According to the district court, the short time between a June 17, 2001

newspaper article in the St. Louis Post-Dispatch quoting Green and the City's decision
-4-

to review the certification process, which led to Green's termination, gave rise to an

inference that Green's statement to the press led to the termination of his job. Id. at

*5. The court therefore held that Green had established a prima facie case of

retaliation. The City contended that its transferral of the certification process to the

Airport office, which resulted in loss of Green's job, was prompted by legitimate,

nondiscriminatory reasons of expediting processing, minimizing duplication of work,

and improving oversight of the certification process. Id. The court determined,

however, that Green met the City's defense with evidence of pretext, in that the

Airport Disadvantaged Business Enterprise office had as great a backlog as Green's

office had. Id. Therefore, the court determined that there was a triable issue of fact

as to whether Green had been laid off for exercising his First Amendment rights.

The court construed Count II of the complaint as an allegation that Green had

been terminated for refusing to engage in mail fraud by certifying businesses as

women- and minority-owned without adequate investigation. The court concluded

that Green had not shown evidence that the defendants engaged in mail fraud or tried

to coerce Green to do so. Id. at *8. Therefore, the court entered summary judgment

against Green on his claim that he was terminated in violation of public policy, though

the court noted that Count II could survive as stating a claim under 42 U.S.C. § 1981

for retaliation against Green for protesting unlawful interference with contract rights

in relation to the certification process. Id., at *9 & 11 n. 18. 

The district court also held that Green had failed to bring forward any evidence

that he had engaged in activity protected by the False Claims Act, since he could not

identify any grant applications that made false assertions about inclusion of women

and minorities and he could not identify any reports submitted to the federal

government that were based on false certifications. Id. at *10.

The parties proceeded to trial on the claim that Green was laid off in retaliation

for his exercise of First Amendment rights in making the statement to the St. Louis
-5-

Post-Dispatch. At the close of Green's case, the court dismissed the individual

defendants. The court submitted the claim against the City to the jury to decide

whether (1) the City terminated Green's employment, and (2) the termination was

caused at least in part by Green's statements to the St. Louis Post-Dispatch. The court

also submitted to the jury a special interrogatory to assist the court in determining

whether Green's statement to the Post-Dispatch was protected by the First

Amendment. The interrogatory asked: "Did Plaintiff make his statements that were

published in the Post-Dispatch on June 17th, 2001, in his capacity as a citizen or in

his capacity as the Director of the Women and Minority Business Enterprise

Certification Program?" The jury returned a verdict in favor of the City, as well as an

answer to the special interrogatory finding that Green's statements were made as

Director of the Women and Minority Business Enterprise Certification Program. 

Green appeals the district court's entry of partial summary judgment and its

entry of judgment on the jury verdict.

I.

Green first contends that the district court erred in entering summary judgment

against him on his claim that the City unlawfully refused to rehire him and on his

claim of retaliation under the False Claims Act. We review the entry of summary

judgment de novo, asking whether the record, viewed in the light most favorable to

Green, showed that there was no genuine issue of material fact and that the defendants

were entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Hope v. Klabal,

457 F.3d 784, 790 (8th Cir. 2006).

Green contends that the district court erred in entering summary judgment

against him on his claim that the defendants unlawfully refused to rehire him after he

was laid off. To establish a prima facie claim for discriminatory failure to hire, a

plaintiff must show that "he applied and was qualified for a job for which the
-6-

employer was seeking applicants." Chambers v. Wynne Sch. Dist., 909 F.2d 1214,

1216 (8th Cir. 1990) (applying test from McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802 (1973), in context of racial discrimination claim). Green conceded that

he had not applied for a job. However, the application requirement will be excused

if the job opening was not officially posted or advertised and either (1)

the plaintiff had no knowledge of the job from other sources until it was

filled, or (2) the employer was aware of the plaintiff's interest in the job

notwithstanding the plaintiff's failure to make a formal application.

Chambers, 909 F.2d at 1217 (emphasis added). Green argues, without citation to the

record, that the application requirement should be obviated in his case because "he

was told at the time of his layoff that he would be contacted for any possible recall or

rehire." He contends he was told this "both by Phil Hoge, head of [St. Louis

Development Corporation] as well as Barbara Geisman, Mayor Slay's assistant for

development, but he was never called to return to work." Green filed an affidavit

admitting that he never applied for a position, but stating that when he was terminated,

he was "told I was to be recalled to service. I would be notified, but I never was." He

averred that he learned that about a year after his termination, a woman named

"Willis" was hired for a position "related to minority and female contractor

recruitment for city contracts . . . and MBE or WBE certification status." He gave no

information about the job that Ms. Willis was hired for--either its duties, rank, or

necessary qualifications. He also points to two lists in the defendants' statements of

uncontroverted fact: one list shows the employees at the Airport's Disadvantaged

Business Enterprise office in September 2001 and the other list shows the current list

of employees as of February 2006. Comparison of the lists indicates that there has

been some turnover and four new jobs have been added. Again, the list shows nothing

about the specific jobs' duties, rank, or the necessary qualifications. 

Green does not fit within the specific exception to the application requirement

that we described in Chambers since he has not shown that any jobs that came

available were not posted or advertised. See 909 F.2d at 1217; see also Smith v. J.
-7-

Smith Lanier & Co., 352 F.3d 1342, 1345 (11th Cir. 2003) (per curiam) (where

openings are publicized, plaintiff must apply, even if she expressed general interest

in being rehired). However, we have described the circumstances for excusing an

application more broadly than in Chambers, stating that there is no need for a plaintiff

to apply for an open position where the employer had "some reason or duty to

consider him for the post." Kehoe v. Anheuser-Busch, Inc., 96 F.3d 1095, 1105 n.13

(8th Cir. 1996) (quoting Fowle v. C&C Cola, 868 F.2d 59, 68 (3d Cir. 1989)). Even

using this broader formulation, we cannot conclude that Green has established that any

particular jobs were open for which he was qualified or which the City had reason to

believe he would be interested in. He had formerly been in charge of the certification

office, so the alleged assertion that he would be "recalled" would presumably mean

that he would be rehired to a position comparable to what he did before in duties and

rank. Since he has offered no evidence about the jobs that became available, we

simply have no way of knowing whether the jobs were commensurate with his

previous duties, compensation, and rank, or whether the City had any reason to

believe Green would be interested. Further, Green has not shown that Hoge and

Geisman, the people who spoke with Green at the time of the lay-off, were in anyway

responsible for hiring personnel for the Airport Disadvantaged Business Enterprise

office; Jack Thomas, who was in charge of that office, was not shown to be aware that

Green wanted to be hired. While it is true that the burden of making a prima facie

case of discrimination should not be onerous, Kehoe, 96 F.3d at 1105 n.13, there are

too many gaps in this record to show that the City knowingly bypassed Green for a

suitable job opening.

Green also contends that the district court erred in entering summary judgment

against him on his claim for retaliation under the False Claims Act, 31 U.S.C. §

3730(h). Section 3730(h) allows an employee to recover if he is 

discharged, demoted, suspended, threatened, harrassed, or in any other

manner discriminated against in the terms and conditions of employment
-8-

by his or her employer because of lawful acts done by the employee on

behalf of the employee or others in furtherance of an action under this

section, including investigation for, initiation of, testimony for, or

assistance in an action filed or to be filed under this section . . . . 

The False Claims Act imposes liability for knowingly presenting false or

fraudulent claims to the government for payment or approval. See 31 U.S.C. § 3729.

An employee engages in activity protected under the Act if the employee undertakes

acts in furtherance of a False Claims Act suit and if the employee believes, and has

reason to believe, that his or her employer might be committing fraud against the

government. See Schuhardt v. Washington Univ., 390 F.3d 563, 567 (8th Cir. 2004).

Green contends that he showed that he complained to various City officials and to the

Post-Dispatch about the City's policy of certifying businesses as women- or minorityowned on the basis of certifications by other agencies. The district court held that

Green admitted in his deposition that he was not contending that grant applications

were made with fraudulent information, and he could not point to any fraudulent grant

application or report or to any document in which he alerted the City to fraud or illegal

activity. Accordingly, the court concluded that his False Claims Act count failed.

2006 WL 1663439, at *10.

Green contends he alerted the City to possible fraud, and he relies on

memoranda he sent to various city officials disputing the advisability of using other

agencies' determinations of women or minority ownership of businesses. None of

those memoranda describes any actual fraudulent claim being presented to the

government. At Green's deposition, he disavowed having knowledge of any

document that had been submitted to the government with false information, but said

that he only knew that the City's system of reciprocal certification was "flawed" and

created a "high probability" that the City's reports were "flawed." He said he was not

alleging that there was any fraudulent information on grant applications. Green

objected to the City's practice of certifying businesses in reliance on other agencies'

determinations, not because he contended the City was intentionally using false
2

On appeal, Green also relies on another reported remark by Rainford that

Green was "too passionate about civil rights," but this remark was not discussed in

ruling on the motion in limine and Green does not contend that he preserved it at trial.

Similarly, Green makes some mention of the deposition testimony of Jack Thomas,

but he does not argue that he offered the testimony at trial.

-9-

information, but merely because he contended the other agencies' work was not as

reliable as work done in-house. Yet, he was unable to point to any case in which he

even suspected that the City's practice had led to a false statement. If Green had no

reason to believe there was a false or fraudulent claim, he is not protected from

retaliation under the False Claims Act. See Schuhardt, 390 F.3d at 567; Shekoyan v.

Sibley Int'l, 409 F.3d 414, 423 (D.C. Cir. 2005) (no activity protected by False Claims

Act where employee testified, "I have never concluded that there was corruption."),

cert. denied, 546 U.S. 1173 (2006); Lang v. Northwestern Univ., 472 F.3d 493, 495

(7th Cir. 2006) (employee who alleges fraud with no reasonable basis for believing

there was fraud is not protected from retaliation by False Claims Act). Green's

activities therefore cannot be said to be activities protected by § 3730(h). The district

court did not err in concluding that Green conceded away his claim. 

II.

Green contends that the district court erred in excluding testimony of three

witnesses regarding a meeting that occurred in December 2001 after Green's

employment was terminated on September 26, 2001. According to Green, after his

job was terminated, thirty-five to fifty of his supporters staged a demonstration on his

behalf outside the mayor's office. In December three of his friends, Norman Seay,

Karl Grice, and Don Gammon, attended a meeting with Mayor Slay, Jeff Rainford,

and Rita Kirkland, at which Green's friends asked why he had been fired and sought

his reinstatement. According to an affidavit of Grice, Rainford responded, "We could

try to find a job for Percy (Mr. Green) but he's to not [sic] to handle. He's

radioactive." Green contends that the real quote was, "[H]e's too hot to handle."2

 
-10-

The City made a motion in limine asking that evidence of this conversation be

excluded because it occurred after the reorganization and the termination of Green's

job and therefore was not relevant to the job termination claim, but only to the refusal

to rehire claim that the court had dismissed on summary judgment. The court asked

Green's counsel why a conversation after the lay-off was relevant, and counsel

responded, "Yeah, it was indeed after the layoff, Your Honor, but the fact that they

referred to their objection to him as being radioactive is an indication that they had

some bias against him because of–that they didn't have a good reason for having any

objection to him." The court held that the testimony was only relevant to the refusal

to hire claim and so ruled that it would not be admissible on the issues left for trial.

Green did not offer the witnesses at trial. 

We review the district court's evidentiary rulings for abuse of discretion, and

we may not reverse unless the district court erred and the error affected the substantial

rights of the appellant. Archer Daniels Midland Co. v. Aon Risk Servs., Inc., 356 F.3d

850, 857 (8th Cir. 2004). 

The district court did not abuse its discretion in finding that the conversation

pertained to post-termination events and was therefore not relevant to the City's

decision to reorganize its system for certification of women- and minority-owned

businesses and the resulting lay-off of Green. The district court did not purport to

state a rule that post-termination statements are never relevant to state of mind at the

time of termination; instead, the court assessed the evidence as presented to it and

concluded that the statements here were only relevant to later events. There was no

abuse of discretion. 

III.

Green contends that the district court erred in submitting an interrogatory to the

jury which asked, "Did Plaintiff make his statements that were published in the Post-
-11-

Dispatch on June 17, 2001, in his capacity as a citizen or in his capacity as a citizen

or in his capacity as the Director of the Women and Minority Business Enterprise

Certification Program?" The interrogatory was given to the jury to assist the court in

making the legal determination of whether the communication was entitled to First

Amendment protection. See McGee v. Pub. Water Supply Dist. No. 2, 471 F.3d 918,

920 (8th Cir. 2006) (whether employee's statement was made as citizen on a matter

of public concern and so is entitled to First Amendment protection is question of law).

We review a district court's decisions regarding jury instructions for abuse of

discretion, reversing only if any error affected a party's substantial rights. Bass v.

Flying J, Inc., — F.3d —, 2007 WL 2683017, at 2* (8th Cir. 2007).

It is difficult to discern what Green contends was wrong about the interrogatory,

but in any case, any defect was harmless. The jury found against Green on the verdict

director asking whether the City terminated Green's employment, and if so, whether

it did so in part because of Green's statements to the Post-Dispatch resulting in the

June 17, 2001 article. Therefore, even if Green's statements received full First

Amendment protection (which is the issue at stake in the interrogatory), the jury had

already found against Green on the other elements of his claim. Any possible defect

in the interrogatory was harmless. 

We affirm the district court's entry of partial summary judgment in favor of the

City and its entry of judgment on the jury verdict.

______________________________