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

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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Individually and in his former position * [UNPUBLISHED]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. *

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 Submitted: November 20, 1998

Filed: November 27, 1998 

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

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PER CURIAM.
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Jane Kauffman served as a parole officer for the Arkansas Department of

Correction (ADC). Following several sub-par reviews, Kauffman’s ADC supervisors,

Dawn McVay and G. David Guntharp (the supervisors), terminated Kauffman’s

employment. Claiming she was terminated because she commented on the ADC’s

discriminatory hiring practices, Kauffman brought this 42 U.S.C. § 1983 action,

contending the supervisors violated her First Amendment rights. The district court

denied the supervisors’ motion for summary judgment based on qualified immunity, 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 qualified immunity de novo, and like the

district 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. 1997) (en banc). Summary judgment is inappropriate if genuine issues of

material fact are in dispute. See Engle v. Townsley, 49 F.3d 1321, 1323 (8th Cir.

1995). The supervisors are entitled to qualified immunity unless their conduct violated

a clearly established constitutional right of which a reasonable person would have

known. See id. at 1322-23. It is clearly established that a public employer cannot

discharge an employee if the discharge infringes on the employee’s constitutionally

protected right to free speech. See Kincade v. City of Blue Springs, 64 F.3d 389, 395

(8th Cir. 1995). For the purposes of this appeal, the supervisors assume Kauffman

made protected statements, but nevertheless, the supervisors claim they did not violate

Kauffman’s interest in freedom of speech because any reasonable decisionmaker would

have terminated Kauffman’s employment based on her performance record. Kauffman

presented conflicting evidence, however, that other ADC employees with similar

performance records remained employed with the ADC. The district court concluded

a genuine issue of material fact existed about whether Kauffman’s termination was

lawful 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.
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A true copy.

Attest:

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