The Honorable Cynthia Holcomb Hall, United States Circuit Judge for the Ninth * Circuit, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 98-1923EA

_____________ Jane Kauffman, * * Appellee, *

* v. * * Dawn McVay, Individually and in her * Appeal from the United States former position as area parole * District Court for the Eastern supervisor for the Arkansas Department * District of Arkansas. of Correction; G. David Guntharp, * Individually and in his former position * [UNPUBLISHED] as assistant director of the Arkansas * Department of Correction for Field * Services, * * Appellants. *

_____________ Submitted: November 20, 1998

Filed: November 27, 1998

_____________ Before RICHARD S. ARNOLD, FAGG, and HALL, Circuit Judges. *

_____________ PER CURIAM.-2-

Jane Kauffman served as a parole officer for the Arkansas Department o f Correction (ADC). Following several s ub-par reviews, Kauffman’s ADC supervisors, Dawn McV ay and G. David Guntharp (the supervisors), terminated Kauffman’ s emp loyment. Claiming she was terminated because she commented on the ADC’ s di scriminatory hiring practices, Kauffman brought this 42 U.S.C. § 1983 action , conte nding the supervisors violated her First Amendment rights. The district cour t denied the supervisors’ motion for summary judgment based on qualified immu nity, and the supervisors appeal. See Allison v. Department of Corrections , 94 F.3d 494, 496 (8th Cir. 1996). We affirm. We review the district court’s denial of qualif ied immunity de novo, and like the distr ict court we view all the facts in a light most favorable to Kauffman and give her all reasonable inferences from the evidence. See Burnham v. Ianni , 119 F.3d 668, 673 (8th Cir. 1 997) (en banc). Summary judgment is inappropriate if genuine issues o f material fact are in dispute. See Engle v. Townsley , 49 F.3d 1321, 1323 (8th Cir

. 1995). The supervisors are entitled to qualifie d immunity unless their conduct violated
a clearly established constitutional right of which a reasonable person would hav e known. Se e id. at 1322-23. It is clearly established that a public employer canno t discha rge an employee if the discharge infringes on the employee’s constitutionall y protected right to free speec h. See Kincade v. City of Blue Springs , 64 F.3d 389, 395 (8th Ci r. 1995). For the purposes of this appeal, the supervisors assume Kauffma n made protected statements, but neverthele ss, the supervisors claim they did not violate Kauffman’s interest in freedom of speech because any reasonable deci sionmaker would have terminated Kauffman’s employment based on he r performance record. Kauffman presente d conflicting evidence, however, that other ADC employees with simila r performance records re mained employed with the ADC. The district court concluded
a g enuine issue of material fact existed about whether Kauffman’s termination wa s lawfu l under clearly established First Amendment law, and denied the supervisors ’ summary judgment motion. See Engle , 49 F.3d at 1324. Having reviewed the record, we conclude the district court’s ruling was correct and affirm.-3-

A true copy.

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