United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 01-2749

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Jerri Johnson; Dennis Washington; *

Rommie Moss; Willie Mathis, *

*

Appellants, *

*

v. *

* Appeal from the United States

The City of Hope, Arkansas, A * District Court for the Western

Public Body Corporate; William * District of Arkansas.

Brinkworth, Individually and in His *

Official Capacity as Chief of Police * [UNPUBLISHED]

of the City of Hope, AR; James *

Purtle, Former Chief of Police of *

the City of Hope Police Department, *

*

Appellees. *

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Submitted: April 16, 2002

Filed: April 23, 2002

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Before HANSEN, Chief Judge, McMILLIAN and FAGG, Circuit Judges.

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PER CURIAM.
*

The Honorable Harry F. Barnes, United States District Judge for the Western

District of Arkansas.

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Jerri Johnson, Dennis Washington, Rommie Moss, and Willie Mathis (the

plaintiffs) appeal the district court’s*

 adverse grant of summary judgment on their

racial employment discrimination claims brought against the Hope, Arkansas Police

Department (HPD). The plaintiffs are African-American employees or former

employees of HPD. The district court granted HPD’s motion for summary judgment,

reaffirming on reconsideration. We review the grant of summary judgment de novo,

affirming the district court if material facts are not in dispute and the moving party

is entitled to judgment as a matter of law. Turner v. Holbrook, 278 F.3d 754, 757 (8th

Cir. 2002). We examine each plaintiff’s claim in turn.

Johnson alleges she was constructively demoted on account of her race. When

HPD changed its administrative structure to accommodate a new 911 emergency call

system, HPD eliminated the supervisory dispatcher position held by Johnson, but

continued to employ Johnson in a similar position without decreasing her pay,

seniority, or benefits. Thus, Johnson suffered no adverse employment action.

Ledergerber v. Stangler, 122 F.3d 1142, 1144-45 (8th Cir. 1997). Further, Johnson

is not similarly situated to the employee who now supervises dispatching because he

is an HPD lieutenant and Johnson is not a certified law enforcement official. We

affirm the district court’s grant of summary judgment to HPD on Johnson’s claim of

constructive demotion.

Washington and Moss both allege they were not promoted because of their

race, and also that they were subjected to retaliatory discharge after each filed a claim

with the Equal Employment Opportunity Commission (EEOC) and publicly criticized

HPD. The district court dismissed both failure to promote claims, concluding neither

Washington nor Moss established a prima facie case because neither applied for the

position he claims he was denied. Gentry v. Georgia-Pacific Corp., 250 F.3d 646,
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650 (8th Cir. 2001). Under the law of this circuit, however, a “formal application for

a job opening will not be required to establish a prima facie case of discrimination ‘if

the job opening was not officially posted or advertised and . . . the employer was

aware of the plaintiff’s interest in the job notwithstanding the plaintiff’s failure to

make a formal application.’” Id. at 652 (citation omitted). 

The district court opinion and the record do not make clear whether HPD

“officially posted or advertised” the open positions Washington and Moss wanted.

Summary judgment was appropriate on other grounds, though. Because Washington

was not similarly situated to the recipient of the relevant promotion–who had the

required one year of supervisory experience Washington lacked–Washington cannot

establish a prima facie case. Id. at 650. As for Moss, even if HPD did not formally

post or advertise the position he was not promoted to, summary judgment is

appropriate because Moss does not contend his supervisor had actual knowledge of

Moss’s interest in the position. 

Washington and Moss’s retaliatory discharge claims fail because neither

plaintiff can establish a causal connection between his protected speech and the

termination of his employment. Graning v. Sherburne County, 172 F.3d 611, 615 (8th

Cir. 1999). Further, both Washington and Moss were terminated for legitimate, nondiscriminatory reasons. Id. Washington filed an EEOC claim in October 1996 and

HPD conducted a thorough investigation into Washington’s failure to follow HPD

policy before terminating him on this basis in June 1998. After Moss filed an EEOC

claim, the Arkansas State Police began an investigation which led to three felony

charges being filed against Moss in state court and to Moss’s termination by HPD.

We affirm the district court’s grant of summary judgment to HPD on the failure to

promote and retaliatory discharge claims brought by Washington and Moss.

Mathis alleges he was constructively discharged from HPD because of its

racially hostile work environment. The district court concluded Mathis’s working
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conditions were not so intolerable that his resignation was reasonably foreseeable.

Tidwell v. Meyer’s Bakeries, Inc., 93 F.3d 490, 494 (8th Cir. 1996). In support of this

conclusion, the district court noted Mathis was reassigned from housing authority to

patrol duty; he passed a polygraph test as part of an investigation which was then

dismissed; he received a three-day suspension for being late to a parole revocation

hearing when his tardiness caused the petition for revocation to be denied; the local

newspaper published an article about this parole hearing on its own initiative;

Mathis’s pay and benefits never decreased during his employment with HPD; and

Mathis accepted a higher-paying job before resigning from HPD. On appeal, Mathis

raises additional claims that his co-workers told racist jokes, used racist language, and

directed racial epithets at him, and his supervisors failed to remedy this situation. Id.

We do not reach these claims because Mathis’s affidavit states Mathis never informed

his supervisors about racial discrimination by his co-workers, and so HPD had no

chance to remedy these aspects of the allegedly racially hostile environment. We

affirm the district court’s conclusion that Mathis fails to state a claim for constructive

discharge as a matter of law.

In sum, we affirm for the reasons stated above.

A true copy.

Attest:

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