United States Court of Appeals

For the Eighth Circuit

___________________________

No. 17-2948

___________________________

Jeanette McKee

lllllllllllllllllllllPlaintiff - Appellee

Susan Hickman

lllllllllllllllllllllPlaintiff

Sharon Rebecca Hickman

lllllllllllllllllllllPlaintiff - Appellee

v.

MichaelReuter, in his individual capacity; ChristyScrivner,in her individual capacity

lllllllllllllllllllllDefendants - Appellants

Teresa Cusick

lllllllllllllllllllllDefendant

____________

Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

____________

Submitted: November 26, 2018

Filed: January 8, 2019

[Unpublished] 

____________
Before HARTZ, BALDOCK, and HOLMES, Circuit Judges.*

____________

HOLMES, Circuit Judge.

Jeanette McKee and Sharon Rebecca Hickman brought First Amendment

political patronage claims under 42 U.S.C. § 1983 against Michael Reuter, the

Republican elected clerk of the Circuit Court of Jefferson County, Missouri, and his

subordinate, Christy Scrivner. After dismissing some claims, the district court

1

denied Mr. Reuter and Ms. Scrivner summary judgment based on qualified immunity. 

They appealed, and exercising jurisdiction under 28 U.S.C. § 1291, we affirm the

denial of qualified immunity.

I

A. Jeanette McKee

Ms. McKee began working for the Circuit Court ofJefferson County, Missouri

in 1989. In 1998, she became the chief deputy clerk. In 2014, she was both the

highest ranking and the highest paid deputy clerk, and she was nominated to run as

the Democratic candidate to replace the outgoing clerk of court. Her opponent in the

general election was Mr. Reuter, the Republican candidate. During the course of the

campaign, Ms. McKee publicly commented that Mr. Reuter had been accused of

domestic violence. Although he later acknowledged he was arrested for domestic

violence and his wife obtained a temporary protective order against him, he indicated

that no charges were ever filed. Mr. Reuter won the election and took office on

January 2, 2015.

* The Honorable Harris L. Hartz, the Honorable Bobby R. Baldock, and the

Honorable Jerome A. Holmes, United States Court of Appeals for the Tenth Circuit,

sitting by intercircuit designation.

The Honorable Catherine D. Perry, United States District Judge for the Eastern 1

District of Missouri.

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On Mr. Reuter’s first day on the job, he and his wife, Renee Reuter, were

present when Ms. McKee arrived at work. Before Ms. McKee removed her coat,

Mr. Reuter instructed her to relocate her work station from her semi-private desk to

a cubicle immediately outside his office. Mr. Reuter assured her that her duties

would remain the same, meaning she would still be the chief deputy clerk. But the

next day, he directed Ms. McKee to tend the front counter and answer telephones

while he convened a meeting of all the deputy clerks, of whom there were

approximately 53. At the meeting, Mr. Reuter announced that Ms. Scrivner, who had

no relevant experience, would be the chief deputy clerk, not Ms. McKee. Mr. Reuter

held another meeting of supervisors immediately afterwards and again excluded

Ms. McKee. On Mr. Reuter’s third day as clerk, he directed Ms. McKee to surrender

her office keys and parking pass because she was no longer the chief deputy clerk. 

At some point, he also installed two security cameras in the office. By the end of

Mr. Reuter’s second week in office, Ms. McKee was on medical leave. 

Ms. McKee returned from medical leave in early February 2015. When she

returned, Mr. Reuter issued her a notice of corrective action “for (1) failure or refusal

to comply with a lawful order and to accept a reasonable and proper assignment

from an authorized supervisor; (2) documented inefficiency, incompetence,

negligence [. . .] in the performance of duties; and (3) behavior that adversely affects

the court or the employees’ ability to perform assigned duties.” Aplt. App. at 257. 

The notice indicated that Mr. Reuter received a complaint from Ms. Scrivner, who

claimed that Ms. McKee refused to help update forms and notify attorneys about

time-sensitive materials. The notice stated that Ms. McKee’s attitude was creating

“a hostile work environment,” id., and that if she was “unable to obey [Mr. Reuter’s]

orders or perform [her] job duties,” she would be subject to disciplinary action,

including dismissal, id. at 258. The notice also informed Ms. McKee that she would

be meeting with Mr. Reuter monthly “to assess [her] progress in resolving these

issues.” Id.

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Ms. McKee contested the notice of corrective action by filing a formal

grievance with Mr. Reuter. She denied the allegations and asserted the “corrective

action was politically motivated.” Id. at 261. She requested that it be withdrawn in

its entirety, stating thatshe had never had corrective action taken against her and that

Mr. Reuter and Ms. Scrivner were intentionally impeding her ability to do her job:

You and [Ms. Scrivner] have prevented me from doing my job

responsibilities on a daily basis by excluding me from meetings and

email notices that ALL other employees received. You have disabled

several computer program functions . . . without informing me as to

why; or that a change was being made to my daily job responsibilities. 

You have humiliated me and singled me out by not including me in staff

meetings where all staff were invited, but told me, “I was not needed”,

[sic] while other subordinate employees listened and witnessed as you

informed me loudly as employees were walking by. You have taken me

out of any supervisory or managerial position within the office.

Id. at 260. Additionally, Ms. McKee asserted that Ms. Scrivner was purposefully

making her working conditions intolerable: 

The hostile work environment is created by Christy Scrivner. She has

refused to talk to me or ask me any questions. She has told other

employees that it is uncomfortable for me, which I’ve never said. She

stood at the front counter and read the [news]paper article involving a

personal matter between her and my husband on Thursday, January 29th

where she also made threatening comments. Christy stated, “It’s really

hard for her to keep her mouth shut she would rather kick some ass”. 

[sic]. She then made reference to her father being a good shot as she

witnessed him shoot her dog between the eyes . . . . This behavior

should not be tolerated and causes stress, harassment and a hostile work

environment. 

Id. at 259.

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Mr. Reuter referred the grievance to an outside fact-finder, Paul Maddock, an

attorney who previously worked with Mrs. Reuter. While Mr. Maddock investigated

the grievance, Mr. Reuter reassigned Ms. McKee to an entirely new position in an

isolated, windowless office doing microfilm tasks. On February 24, 2015,

Mr. Maddock issued his report in which he “reluctantly recommend[ed]” that the

notice of corrective action be withdrawn. Id. at 272. Mr. Reuter accepted

Mr. Maddock’s recommendation, withdrew the notice of corrective action, and

eventually allowed Ms. McKee to return to her desk. 

Then on April 2, 2015, Ms. McKee was involved in an argument with several

other employees about office gossip. As a result, Mr. Reuter notified Ms. McKee that

he intended to terminate her employment for six separate incidents, all of which

transpired during the single argument. He had her escorted from the courthouse, and

Ms. Scrivner wrote the word “karma” on a bulletin board outside her office, id. at

199-200. Ms. McKee contested her termination with Mr. Reuter, but after a hearing

he upheld the dismissal. She appealed to the court’s presiding judge, who referred

the matter to a state-wide budget committee, which, in turn, appointed a three-judge

panel from outside counties. After a lengthy hearing, the panel overturned

Mr. Reuter’s decision and reinstated Ms. McKee with backpay.

Ms. McKee returned to work in June 2015 and was assigned to the traffic

division. Her position required that she perform tasks considerably below her

qualifications. Mr. Reuter also instructed Ms. McKee’s new supervisor, Teresa

Cusick, that Ms. McKee should not enter the second floor, where the main clerk’s

office waslocated. Given these circumstances and her past experiences, Ms. McKee

resigned.

B. Sharon Rebecca Hickman

Ms. Hickman was a deputy clerk and a Democrat who supported Ms. McKee

during the 2014 campaign. When Mr. Reuter took office, Ms. Hickman had been

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employed in the clerk’s office support division for four years and had no negative

performance evaluations. In July 2015, Mr. Reuter transferred her to the traffic

division, where she was supervised by Ms. Cusick. Ms. Hickman was anticipating

surgery and repeatedly asked Mr. Reuter to transfer her back out ofthe traffic division

because she was in pain, but he refused. 

During her tenure in the traffic division, Ms. Cusick warned Ms. Hickman that

she would probably lose her job. Ms. Cusick told Ms. Hickman that she was

“stupid,” that she had a “mental handicap,” and that she “would never learn the job.” 

Aplt. App. at 217. Ms. Cusick would also ask Ms. Hickman, “[D]o you have to stand

so close to me?” and “Do you have to be in my [] area?” Id. at 214. According to

Ms. Hickman, she was not “trained consistently” and “was never taking classes, like

other people got chances to,” but instead, she was “thrown into a department and . . .

sat with someone for about a week.” Id. at 213. Ms. Hickman explained that her

training was deficient because she had been trained by someone who had been

employed in the traffic division for many years, but it would have been more helpful

if she had been trained by a different employee who had more recently gone through

the process. Ms. Hickman believed that Ms. Cusick added to the confusion by giving

her conflicting instructions, sometimes telling her to answer the phone and go to the

window and other times telling her not to answer the phone and not to go to the

window. Ms. Hickman complained to Mr. Reuter that Ms. Cusick was mistreating

her and inadequately training her—while Ms. Scrivner was present—but Mr. Reuter

did not act. Instead, he told her to “go home, relax, [and] have a good weekend.” 

Id. at 217. Notwithstanding these comments, he instituted monthly performance

reviews by which Ms. Cusick repeatedly documented negative appraisals of

Ms. Hickman’s work. Ms. Cusick eventually recommended that Ms. Hickman be

terminated ortransferred to another department. Mr. Reuter terminated Ms. Hickman

on October 13, 2015.

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As Ms. McKee had done, Ms. Hickman contested her termination with

Mr. Reuter. He upheld his decision, so she appealed to the presiding judge, who

referred the matter to the budget committee, which appointed an outside three-judge

panel. After a hearing, the panel overruled Mr. Reuter’s decision and reinstated

Ms. Hickman with backpay. Mr. Reuter subsequently initiated a lawsuit challenging

the panel’s decision. Although he initially prevailed in that suit, Ms. Hickman

appealed to the Missouri Court Appeals, which reversed and upheld the lower panel’s

decision to reinstate her with backpay. See Reuter v. Hickman, No. WD81632, 2018

WL 5913107, at *5 (Mo. Ct. App. Nov. 13, 2018).

Meanwhile, Ms. Hickman returned to work, underwent surgery, and afterwards

notified Mr. Reuter, Ms. Cusick, and Ms. Scrivner that she was in a lot of pain and

that she was taking pain medication. She requested to be restricted to light duty,

but Ms. Cusick told her “she didn’t need to know about [her] medical history.” 

Id. at 238. Ms. Scrivner asked whether she “was having problems doing [her] job,”

id., while Mr. Reuter did not respond at all. Ms. Hickman suffered a nervous

breakdown and went on medical leave. During her absence, Mr. Reuter informed her

that an en banc panel of judges authorized her to take unpaid extended leave if she

faxed in a written request. Ms. Hickman faxed her request, and Ms. Scrivner

confirmed that she received it. But on October 5, 2016, Ms. Scrivner told

Ms. Hickman that her request was not dated, so she needed to return to work the next

day or she would lose her job. Ms. Hickman resigned.

II

Based on these events, Ms. McKee and Ms. Hickman filed an amended

complaint under 42 U.S.C. § 1983, naming as defendants Mr. Reuter, Mrs. Reuter,

Ms. Scrivner, Ms. Cusick, and Jefferson County, Missouri. Ms. McKee and

2

Ms. Hickman claimed defendants violated their First Amendment rights by taking

A third deputy clerk, Susan Hickman, was a plaintiff, but the district court dismissed

2

some of her claims and granted summary judgment on the rest.

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adverse employment action against them on account of their political affiliations and

activities during the 2014 campaign. The district court dismissed several claims

under Federal Rule of Civil Procedure 12(b)(6), leaving Ms. McKee’s claims against

Mr. Reuter and Ms. Scrivner, and also leaving Ms. Hickman’s claims against

Mr. Reuter, Ms. Scrivner, and Ms. Cusick. Following discovery, these defendants

moved for summary judgment based on qualified immunity. 

The district court granted qualified immunity on Ms. Hickman’s claim against

Ms. Cusick, ruling there was no evidence she intended to terminate Ms. Hickman

based on her political affiliation. Rather, the court observed, Ms. Cusick’s

recommendation to transfer or terminate Ms. Hickman was based on her alleged poor

job performance. The court cited Ms. Cusick’s affidavit indicating that Ms. Hickman

issued arrest warrants for the wrong people, failed to issue warrants in a timely

fashion and as directed, failed to check her office mail for one month, and otherwise

displayed neglect, incompetence, and poor performance. The court pointed out that

Ms. Hickman did not dispute these negative avermentsregarding her performance but

merely denied remembering them and acknowledged that she made some mistakes

due to poor training.

The court further concluded that Ms. Hickman’s only evidence against

Ms. Scrivner was (1) she was present when Ms. Hickman complained about

Ms. Cusick’s mistreatment to Mr. Reuter and (2) Ms. Scrivner falsely told

Ms. Hickman that her request for extended medical leave was complete when it was

not. The court determined these circumstances failed to establish a constitutional

violation.

The court denied qualified immunity, however, on Ms. Hickman’s claim

against Mr. Reuter, as well as Ms. McKee’s claims against Mr. Reuter and

Ms. Scrivner. The court determined the law governing these claims was clearly

established and the facts, accepted in the light most favorable to Ms. McKee and

-8-
Ms. Hickman, were sufficient to show a constitutional violation. Mr. Reuter and

3

Ms. Scrivner subsequently brought this interlocutory appeal to challenge the denial

of qualified immunity.

III

“We review a denial of summary judgment on the grounds of qualified

immunity de novo.” Nord v. Walsh Cty., 757 F.3d 734, 738 (8th Cir. 2014). We have

jurisdiction over the denial of summary judgment based on qualified immunity when

the “interlocutory appeal[] reaches only to issues of law.” Ferguson v. Short, 840

F.3d 508, 511 (8th Cir. 2016). In evaluating the denial of qualified immunity, we ask

“(1) whether the facts taken in the light most favorable to [the plaintiffs] make out a

violation of a constitutional or statutory right; and (2) whether that right was clearly

established at the time of the alleged violation.” Thompson v. City of Monticello, 894

F.3d 993, 998 (8th Cir. 2018). “Our review isthuslimited to determining whether all

of the conduct that the district court deemed sufficiently supported for purposes of

summary judgment violated the plaintiff[s’] clearly established federal rights.” Id.

at 997-98 (internal quotation marks omitted).

It is clearly established that the practice of political patronage, in which “public

employees hold their jobs on the condition that they provide, in some acceptable

manner, support for the favored political party,” “unquestionably inhibits protected

belief and association.” Elrod v. Burns, 427 U.S. 347, 359 (1976). Political

patronage dismissals unconstitutionallyinfringe on First Amendment rights ofspeech

and association “unless ‘the hiring authority can demonstrate that party affiliation is

an appropriate requirement for the effective performance of the public office

involved.’” Langley v. Hot Spring Cty., 393 F.3d 814, 817 (8th Cir. 2005) (quoting

Branti v. Finkel, 445 U.S. 507, 518 (1980)). Such positions usually involve “policymaking or a confidential relationship with an elected official.” Id.; see Barnes v.

The court also denied summary judgment on the merits of these claims, but those

3

issues are not before us.

-9-
Bosley, 745 F.2d 501, 505 (8th Cir. 1984) (explaining that under Elrod, “the

governmental interest in effectiveness and efficiency is only seriously threatened

when an employee with an opposition party viewpoint is in a policymaking and

confidential position”).

An employee’s political affiliation need not be “the sole motivating factor

behind the . . . dismissal[].” Barnes, 745 F.2d at 507. “In ‘mixed-motive’ cases,

where the evidence demonstrates that both legitimate and illegitimate motives may

have prompted action against a public employee who engaged in protected conduct,

the allocation of the burden of proof is dictated by Mt. Healthy City School District

Board of Education v. Doyal, 429 U.S. 274 (1977).” Barnes, 745 F.2d at 507; accord

Mahn v. JeffersonCty., 891 F.3d 1093, 1097 (8thCir. 2018) (recognizing inconsistent

Eighth Circuit authority on whether Mt. Healthy or McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), governs, but following Mt. Healthy). Under that

analysis, the plaintiff must produce “sufficient evidence from which the fact finder

reasonably can infer that the plaintiff’s protected conduct was a ‘substantial’ or

‘motivating’ factor behind her dismissal.” Wagner v. Jones, 664 F.3d 259, 270 (8th

Cir. 2011) (internal quotation marks omitted). “If the plaintiff meets this burden,

summary judgment must be denied unless the defendant establishes either that the

political motive is an appropriate requirement for the job, or that the dismissal was

made for mixed motives and the plaintiff would have been discharged in any event.” 

Mahn, 891 F.3d at 1096 (internal quotation marks omitted); see also Wagner, 664

F.3d at 270-73 (applying Mt. Healthy in the context of qualified immunity analysis).

A. McKee v. Reuter

Ms. McKee has marshalled enough evidence for a jury to reasonably infer that

her political affiliation and activities during the 2014 campaign were substantial

factors, both in the way Mr. Reuter treated her after the election and in his decision

to dismiss her. They ran as opposing political candidates in a partisan campaign. On

his first day in office, with his wife present, he directed Ms. McKee to relocate her

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work station from a semi-private desk to a cubicle immediately outside his office,

where he installed two security cameras. The next day, he replaced her with

Ms. Scrivner, who had no relevant qualifications. He announced this personnel

change at a meeting in which Ms. McKee wasthe only deputy clerk excluded, despite

her status as the highest ranking, highest paid deputy clerk, and despite his assurance

she would remain the chief deputy clerk. 

Mr. Reuter also demanded Ms. McKee’s office keys and parking pass, and

when she returned from medical leave, he issued a notice of corrective action,

ostensibly based solely on Ms. Scrivner’s complaint, although Ms. McKee disputed

it as politically motivated. In the notice, Mr. Reuter faulted Ms. McKee for creating

a hostile work environment, threatened her with sanctions, and placed her on a

monthly evaluation schedule, all without soliciting any input from her. While these

justifications were evaluated by Mr. Maddock, who was a prior associate of

Mrs. Reuter, Mr. Reuter assigned Ms. McKee to menial work in an isolated office. 

He withdrew the notice only after Mr. Maddock advised him to do so. And after the

gossip argument, he terminated her and had her escorted from the courthouse. This

evidence is sufficient for a rational factfinder to infer that Mr. Reuter mistreated and

terminated Ms. McKee on account of her political affiliation and activities during the

2014 campaign.

Defendants offer two principal justifications—one legal and one factual—for

Mr. Reuter’s actions. The legal argument relies on Carver v. Dennis, 104 F.3d 847,

848 (6th Cir. 1997), where a deputy county clerk was terminated by her boss, who

wasthe county clerk, a day after the deputy clerk announced she was challenging her

boss in the next election. The Sixth Circuit, noting there was no evidence the deputy

clerk was dismissed for her political beliefs, observed that the record instead

indicated that the deputy clerk was fired for her candidacy. Id. at 850. Accordingly,

the court distinguished the Elrod/Branti line of cases and held there was no First

Amendment “right to express one’s political views through candidacy.” Id. at

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850-51. The court reasoned that to find a First Amendment violation under the facts

of that case “would be to read out of the entire line of relevant Supreme Court

precedent the factual requirements of political belief, expression and affiliation,

partisan political activity, or expression of opinion, and to read into that precedent a

fundamental right to candidacy.” Id. at 853. Based on Carver, defendants contend

that Ms. McKee had no First Amendment right to run for clerk of court and then, after

losing the election, retain her position. 

We do not dispute that there is no clearly established First Amendment right

to run for office. As defendants correctly point out, Carver makes clear there is not. 

Consequently, to the extent any of Ms. McKee’s claims are predicated solely upon

her candidacy, defendants were entitled to qualified immunity. But as we understand

Ms. McKee’s claims, they are not predicated upon her candidacy; they are predicated

upon her affiliation with the Democratic party, the expression of her political views,

and the activities she undertook as a Democrat during a partisan campaign, which fall

squarely within the protections of the First Amendment. See id.

Defendants insist that “virtually all of the applicable case law” holds that there

is no First Amendment right to remain on the staff of a prevailing political opponent. 

Reply Br. at 10 (citing Bart v. Telford, 677 F.2d 622, 624 (7th Cir. 1982)). But that

is an overbroad characterization of the legal issue we confront here. Our task is to

determine whether, absent political affiliation being an appropriate requirement for

the job, there is a First Amendment right not to be removed from a prevailing

opponent’s staff because of one’s political affiliation. There is indeed such a right. 

See Rutan v. Republican Party of Ill., 497 U.S. 62, 64 (1990) (“[T]he First

Amendment forbids government officialsto discharge orthreaten to discharge public

employees solely for not being supporters of the political party in power, unless

political affiliation is an appropriate requirement for the position involved.”). Bart

does not suggest otherwise. In that case, a subordinate of the mayor announced that

she intended to run for mayor. 677 F.2d at 623-24. The mayor required that the

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employee take a leave of absence, and when she returned to work after having lost the

race, she alleged the mayor subjected her to harassment for having run for office. Id.

at 624. The Seventh Circuit affirmed dismissal of the complaint to the extent it

alleged the compelled leave of absence violated the employee’s First Amendment

rights, holding that the First Amendment does not confer a right to run for office. Id.

But to the extent the complaint alleged harassment motivated by the employee’s

expression of her political views, the Seventh Circuit reversed, holding “that is all

that is necessary to save this part of the complaint from being dismissed.” Id. at 625. 

We think Bart illustrates the distinction between this case and Carver, which

explicitly recognized that harassment based on political views can raise a

constitutional violation, even if the victim was also a candidate. See Carver, 104

F.3d at 852.

As for whether political affiliation was an appropriate requirement for the job,

defendants cite no evidence and offer no argument from which we might conclude

that the chief deputy clerk was a policymaking or confidential position. Instead,

defendants cite Wallace v. Benware, 67 F.3d 655, 661 (7th Cir. 1995), for the

proposition that an employer—in that case, a sheriff—may dismiss or demote a

deputy who challenged him in an election without violating the First Amendment. 

Wallace is inapposite, however, because underlying its entire disposition, which we

discuss more fully below, is the recognition that deputy sheriffs are policymaking

employees—a showing that has not been made here. See id. at 659 (explaining that

deputy sheriffs fall under the policymaker exception to the First Amendment’s ban

on patronage dismissals); id. at 661 (“We have permitted a sheriff to dismiss or

demote a politically disloyal deputy under the theory that once elected to public

office, a sheriff should be entitled to place in the policymaking position of deputy

sheriff loyal and trustworthy individuals who would be most effective in carrying out

his electoral mandate.” (emphasis added)). Absent any showing that the chief deputy

clerk was a policymaking or confidential position, Wallace is legally inapplicable.

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Moreover, even if Wallace were relevant—that is, even if, like Wallace,

political affiliation was a requirement of the chief deputy clerk’s job—Wallace does

not hold that a losing party’s involvement in an election gives the prevailing party

unbridled latitude to harass his opponent. Wallace observed that “a deputy who

challenged the sheriff in an election withstands a First Amendment challenge only

because we presume that the sheriff’s action is directed toward the efficient and

effective operation of his public office.” Id. at 662. As the court explained, “it would

be illogical to apply the same presumption to harassment designed specifically to

hinder or to disrupt a deputy in the performance of his duties.” Id. Defendants fail

to explicate how Wallace supports their position here, where the evidence could be

construed to suggest that, rather than promote the efficiency and effectiveness of the

court, Mr. Reuter instead harassed and impeded Ms. McKee in the performance of her

duties by needlesslyrelocating her work station, distracting her with security cameras,

taking her keys and parking pass, issuing her a politically motivated notice of

corrective action based on a disputed complaint, retaining his wife’s former associate

as a fact-finder to adjudicate her grievance, isolating her to performmenial work, and

reassigning her old duties to a new hire with no relevant qualifications. 

Turning to defendants’ factual justification, which presumably is their

Mt. Healthy defense, they contend that Ms. McKee was fired for her outburst during

the office-gossip argument. Defendants assert that Mr. Reuter, as the duly elected

clerk, had both the discretion and the authority to discipline his deputy clerks. His

office, however, did not give him license to violate clearly established constitutional

rights. Because Ms. McKee has come forward with sufficient evidence that political

animus was a substantial or motivating factor in her treatment and dismissal,

defendants must demonstrate “that the record would compel a reasonable jury to find

that the adverse action would have occurred anyway,” Mahn, 891 F.3d at 1097

(ellipsis and internal quotation marks omitted). Defendants cannotmake this showing

because the outside panel of judges who heard Ms. McKee’s appeal reinstated her

with backpay. Moreover, defendants make no effort to justify any of the other

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treatment she experienced, including her reassignment to the traffic division

following her reinstatement, none of which were ostensible consequences of the

office-gossip argument.

Defendants nevertheless offer one last fact in support of qualified immunity. 

They point out that ultimately neither Mr. Reuter nor Ms. Scrivner fired Ms. McKee;

rather, she voluntarily quit. See Aplt. Br. at 19. But defendants do not contend that

Ms. McKee cannot show she was constructively discharged. See Jones v. Fitzgerald,

285 F.3d 705, 715-16 (8th Cir. 2002)(recognizing that constructive discharge, which

may be based on political retaliation, requires a plaintiff to establish that “defendants

deliberatelymade or allowed her working conditionsto become so intolerable that the

employee had no other choice but to quit”). Instead, defendants reassert that she had

no right to remain on the staff and avoid being assigned to the traffic division. We

have already rejected that contention, and thus, the district court properly denied

qualified immunity on Ms. McKee’s claim against Mr. Reuter.

B. McKee v. Scrivner

Our preceding discussion applies, as well, to Ms. McKee’s claim against

Ms. Scrivner. We reiterate that to the extent Ms. McKee’s claims are based on her

candidacy, defendants were entitled to qualified immunity. Again, however, we do

not understand that to be the basis for her claims. Consequently, having rejected

defendants’ arguments, we have little difficulty concluding that a rational jury could

infer that Ms. Scrivner’s conduct was politically motivated. Plaintiffs alleged that

Ms. Scrivner assisted Mr. Reuter in making their working conditions intolerable in

exchange for her appointment to the chief deputy clerk position. Ms. Scrivner

testified that she owned a pizza parlor and hosted Mr. Reuter’s campaign, perhaps

multiple times. She testified that she marched in a parade to support Mr. Reuter’s

wife in her bid for county counselor, and although she could not recall, she may have

marched for Mr. Reuter’s campaign as well. She did recall, however, wearing a

t-shirt that said “Reuter” on it, Aplt. App. at 413, displaying a yard-sign that said

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“Reuter” on it, id. at 415, and handing out flyers at an election poll station while

thanking voters for their support of Mr. Reuter during the 2014 campaign.

After Mr. Reuter won the election, Ms. Scrivner took Ms. McKee’s job as chief

deputy clerk, despite acknowledging she had no relevant experience, had never been

in a courthouse, and did not know what it meant to be a deputy clerk. See id. at 421

(Scrivner Depo.) (“I—I didn’t know anything about how this office ran. I’ve

never—was never in a courthouse, was never—so I didn’t know what deputy clerk

even actually meant.”). Within days of assuming her new role, Ms. Scrivner lodged

a complaint with Mr. Reuter against Ms. McKee. That complaint resulted in the

notice of corrective action—Ms. McKee’s first in some twenty-five years of service. 

Ms. McKee responded that the notice was politically motivated, that Ms. Scrivner

was making threatening comments, and that both Ms. Scrivner and Mr. Reuter were

impeding her ability to do her job by excluding her from meetings and emails,

disabling her computer programs, and humiliating her in front of other employees. 

See id. at 259-61 (McKee grievance alleging the notice was “politically motivated,”

Ms. Scrivner was creating a “hostile work environment,” and Mr. Reuter and

Ms. Scrivner had “prevented [her] from doing [her] job responsibilities on a daily

basis by excluding [her] from meetings and email notices that ALL other employees

received[,] disabl[ing]several computer programfunctions[, and] humiliat[ing her]”). 

Mr. Reuter withdrew the corrective action, but when he fired Ms. McKee,

Ms. Scrivner wrote the word “karma” on the board outside her office, which another

employee understood to mean “that Mr. Reuter and . . . Christy Scrivner, were

singling out people who had supported Jeanette McKee in the campaign,” id. at 203. 

All this evidence could allow a rational jury to reasonably infer that political animus

was a substantial or motivating factor behind Ms. Scrivner’s conduct. And Ms.

Scrivner has not argued that she was just following orders, as opposed to acting

against Ms. McKee for her own reasons. Because defendants advance no further

argument, we conclude the district court properly denied qualified immunity on

Ms. McKee’s claim against Ms. Scrivner.

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C. Hickman v. Reuter

Finally, defendants dispute the denial of qualified immunity on Ms. Hickman’s

claim against Mr. Reuter. They contend the evidence shows Ms. Hickman was fired

not because she is a Democrat and supported Ms. McKee, but because she was

incompetent. They point out that Ms. Hickman issued arrest warrants for the wrong

people, issued warrants untimely and not as directed, failed to check her mail for a

month, and repeatedly showed neglect, incompetence, and poor judgment. But the

evidence also shows that Ms. Hickman had been employed for four years and had

never received a negative performance evaluation. It was not until after Mr. Reuter,

a Republican, was elected in a campaign in which Ms. Hickman supported his

Democratic opponent thatshe wastransferred and began receiving poor performance

evaluations. Ms. Hickman repeatedly asked Mr. Reuter to transfer her out of the

traffic division, just as other employees had been transferred. He refused, however,

suggested that she quit, and otherwise ignored her complaints that Ms. Cusick was

mistreating her. He similarly ignored her concerns of being inadequately trained and

of being fired and told her to relax. Yet at the same time, he had Ms. Cusick

document negative monthly performance evaluations that served to justify her

dismissal. This evidence satisfies Ms. Hickman’s burden to show that her political

affiliation and activities were a motivating factor in her dismissal. That there was

evidence she made mistakes on the job does not compel the conclusion thatshe would

have been fired in any event, because the outside panel of judges overruled her

dismissal and reinstated her. Accordingly, the district court properly denied qualified

immunity on Ms. Hickman’s claim against Mr. Reuter.

IV

The district court’s denial of qualified immunity is affirmed. Appellees’

motion to expedite submission of the case to a panel is denied as moot. Appellees’

motion to supplement the record on appeal with Missouri Court Operating Rule 7 is

denied as unnecessary.

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