Naes v. City of St. Louis, Missouri

• Court: District Court, E.D. Missouri
• Decided: April 15, 2022
• Docket: 4:19-cv-02132
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

LOUIS NAES, ) ) Plaintiff, ) ) v. ) Case No. 4:19-cv-02132-SEP ) THE CITY OF ST. LOUIS, et al., ) ) Defendants. MEMORANDUM) AND ORDER

Before the Court is the City of St. Louis’s Motion to Alter Judgment. Doc. 140. The matter is fully briefed and ready for disposition. For the reasons set forth below, the Motion is granted. FACTS AND BACKGROUND Plaintiff’s Third Amended Complaint brought four counts: Counts I, II, and III against the City, and Count IV against individual defendants Angela Coonce and John Hayden. Doc. 59. On March 31, 2022, this Court granted summary judgment for Coonce and Hayden on Count IV, summary judgment for the City on Count III, and partial summary judgment for the 1 City on Counts I and II. Doc. 137. Plaintiff’s Title VII claims against the City in Counts I and II survived, in part, because the Court found that there was a genuine dispute over whether there was a materially significant difference between Plaintiff’s position as an Animal Abuse Investigator and his position in First District, such that the difference created an adverse Muldrow v. City of St. Louis et employment action. Doc. 137 at 7-12. al. On April 4, 2022, the Eighth Circuit issued a decision in Muldrow , — F.4th —, 2022 WL 995363 (8th Cir. Apr. 4, 2022). The following day, the City filed this Motion arguing that created an intervening change in controlling law that was dispositive of Plaintiff’s claims, and that pursuant to Federal Rule of Civil Procedure 60(b), this Court should reconsider its summary judgment order and grant judgment in favor of the City on the two remaining claims in Counts I and II. Doc. 141 (City’s Memorandum in 1 See Bonenbergethr v. St. Louis Metropolitan Police Dep’t Support) at 1. On April 8 , Plaintiff filed his Opposition, arguing that this case was more Muldrow comparable to , 810 F.3d 1103 (8th Cir. 2016), and that is not dispositive of his claims. Doc. 144 (Plaintiff’s Memorandum in Opposition). LEGAL STANDARD See Nelson v. Am. Home Assur. Co. Courts may reconsider a non-final summary judgment order on a Rule 60(b) motion. , 702 F.3d 1038, 1043 (8th Cir. 2012). “On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding . . . .” Fed. R. Civ. P. 60(b). If relief is not obtainable under Rules 60(b)(1) see City of Duluth v. Fond du Lac Band of Lake Superior through (5), the Court may grant relief under Rule 60(b)(6) for “any other reason that Chippewa Liljeberg v. Health Serv. Acquisition justifies relief.” Fed. R. Civ. P. 60(b)(6); Corp. , 702 F.3d 1147, 1154 (8th Cir. 2013) (citing , 486 U.S. 847, 863 (1988)). “A change in governing law can represent so significant an City of Duluth see also Thomas v. Newton alteration in circumstances as to justify both prospective and retrospective relief from the obligations of a court order.” , 702 F.3d at 1154; , 2009 WL 111682, at *1 (E.D. Mo. Jan 15, 2009) (“reconsideration of the denial of a motion for summary judgment is appropriate . . . where there has been a significant change in the law or facts since the submission of the isDsIuSeCUs StSoI OthNe Court”) (citation omitted). I. Count I: Involuntary Transfer In Count I, Plaintiff alleged that the City discriminated against him when it involuntarily transferred him from his position as the Animal Abuse Investigator in the Muldrow specialized Nuisance Unit to a patrolman position in First District. Doc. 137 at 5. The City argues that, after , there is no longer any question as to whether Plaintiff’s circumstances gave rise to an actionable adverse employment action. Doc. 141 at 2. The Court agrees. On summary judgment, this Court found that, when Plaintiff was involuntarily transferred, the evidence he produced of changes in his working conditions and loss of prestige raised a genuine issue of material fact over whether his transfer was an adverse employment action. Doc. 137 at 12. Specifically, Plaintiff went from working as a detective rotating day and night schedule that included weekends; and from a position that afforded Id. him an office at headquarters, occasional assignments from the Chief of Police, and local Muldrow news coverage, to a position with none of the above. at 8-12. In , Sgt. Jatonya Clayborn Muldrow sued the City of St. Louis for gender Muldrow discrimination after she was involuntarily transferred from the Intelligence Division to Fifth District. , 2022 WL 995363, at *1. As a detective in Intelligence, Muldrow worked Id. on public corruption and human trafficking cases, served as the head of the Gun Crimes Unit, Id. and oversaw the Gang Unit. Muldrow had a “traditional” Monday through Friday schedule, working from 8:00 AM or 9:00 AM to 4:00 PM or 5:00 PM. Due to her position Id. in Intelligence, Muldrow was deputized by the Federal Bureau of Investigation (FBI) as a Task Force Officer (TFO) for the FBI Human Trafficking Unit. As a TFO, Muldrow had the same privileges as an FBI agent, including access to FBI field offices, the opportunity to work in plain clothes, access to an unmarked FBI vehicle, authority to conduct human trafficking Id. investigations outside of the jurisdiction of the City of St. Louis, and the opportunity to earn up to $17,500 in annual overtime pay. Muldrow . In 2017, Capt. Michael Deeba replaced Capt. Angela Coonce as the Commander of Intelligence and transferred Muldrow to Fifth District. , 2022 WL 995363, at *1 In Id. Fifth District, Muldrow was responsible for administrative upkeep and supervising patrol Id. officers. She also reviewed and approved arrests and responded to “Code 1” calls for crimes such as homicides, robberies, and assaults. Muldrow was required to wear a Id. police uniform, work a rotating schedule that included weekends, drive a marked police vehicle, and work within a controlled patrol area. Muldrow’s salary and rank remained Id. the same, but her TFO status was revoked, and she was no longer eligible for the $17,500 in FBI overtime pay. Muldrow argued that her transfer constituted an adverse employment action because Muldrow her Fifth District position was more administrative and less prestigious than her position in Id. Intelligence. , 2022 WL 995363, at *4. The Eighth Circuit disagreed and held that her transfer was not an adverse employment action. at *7. In so doing, the Court held Id. that “absent proof of harm” resulting from an employee’s reassignment, there is no adverse employment action. at *4. The Court noted that Muldrow’s transfer did not result in a Id. she was still eligible for overtime opportunities but simply chose not to take advantage of those opportunities. at *4, *6. The Court also emphasized that “the mere fact that an employee was disallowed from maintaining her preferred schedule, without any indication Burlington Northern Id. that she suffered a material disadvantage as a result of the action, does not meet the Recio v. Creighton Univ. Burlington N. & Santa Fe Ry. significant harm standard set forth in .” at *6 (cleaned up) (citing Co. v. White , 521 F.3d 934, 940 (8th Cir. 2008) (citing Muldrow , 548 U.S. 53, 68 (2006))). And the Court rejected Muldrow’s argument that her Fifth District position was less prestigious than her former position in Intelligence. , Muldrow 2022 WL 995363, at *4. Under , there is no longer a genuine dispute that Plaintiff’s transfer did not id. constitute an adverse employment action. Like Muldrow, Plaintiff’s salary and rank Muldrow remained the same, , Doc. 137 at 12, and Plaintiff’s altered responsibilities and work Jackman v. Fifth Jud. Dist. Dep’t of Corr. Servs. schedule are not, in themselves, materially significant disadvantages, , 2022 WL 995363, at *3 (citing , 728 F.3d 800, 804 (8th Cir. 2013)). Also like Muldrow, Plaintiff went from investigating specialized cases to working as a patrol officer. Muldrow lost the opportunity to earn $17,500 in FBI overtime; Plaintiff lost the ability to work his cases for overtime. And while Muldrow went from leading the Gun Crime Unit and Gang Unit to supervising patrol officers, Plaintiff provided no evidence that his transfer involved any change in supervisory or leadership duties. Thus far, Plaintiff’s case for an adverse employment action is at best equivalent to, and may even be weaker than, Muldrow’s. Muldrow Plaintiff’s only remaining argument is that the Animal Abuse Investigator position was more prestigious than his position in First District. In light of , that too is insufficient. Plaintiff’s prestige argument is based on the difference in overtime opportunities, local news coverage, and his office at headquarters. Doc. 137 at 10-12. Muldrow Muldrow’s difference in overtime opportunities was not sufficient, even though she lost the opportunity to work human trafficking cases with the FBI. , 2022 WL 995363, at *4. Plaintiff lost only the opportunity to earn overtime by working his own cases after hours or See Muldrow on weekends. Doc. 137 at 9. Moreover, like Muldrow, Plaintiff had overtime opportunities in his new position but chose not to take advantage of them. , 2022 WL 995363, Plaintiff’s additional evidence of loss of prestige—i.e., the fact that he lost his office at Muldrow headquarters and that the media had taken note of the Animal Abuse Investigator position— does not meaningfully distinguish this case from . In evaluating Muldrow’s evidence of the benefits of a sought-after transfer—specifically, that “she would have been seen as having a higher profile, been privy to more information, and perhaps been given a laptop or Muldrow iPad—the Eighth Circuit found that testimony about such benefits “does not explain how or why [she] was harmed by not being awarded the . . . position.” , 2022 WL 995363, at *5. Plaintiff has produced no more evidence of “how or why [he] was harmed” than Muldrow did. He concedes that he suffered no decrease in rank or pay, and the record shows that Plaintiff had no potential for promotion because he scored too low on the promotion exam in 2015 and had not participated in the testing process since. Doc. 111 (Plaintiff’s Response to Defendant’s Statement of Uncontroverted Material Facts) ¶¶ 179-85. He also intended to leave SLMPD in roughly two years, as soon as he was eligible for retirement. Doc. See 111 ¶ 188. Plaintiff provided insufficient evidence for a reasonable trier of fact to find that his transfer harmed his post-retirement career prospects. Doc. 137 at 10. And it is clear from the Eighth Circuit’s analysis of Muldrow’s similar claims that none of Plaintiff’s other Muldrow Clegg v. Ark. Dep't of complaints amounts to “a tangible change in working conditions that produces a material Corr. employment disadvantage.” , 2022 WL 995363, at *3 (citing Muldrow , 496 F.3d 922, 926 (8th Cir. 2007)). Bonenberger See Plaintiff’s efforts to distinguish his case from and assimilate it to Bonenberger are unpersuasive. Doc. 144 at 2. Although there is some similarity between Bonenberger Muldrow See Muldrow this case and , the two cases differ in precisely the same way that the Eighth Muldrow Circuit found and differ. , 2022 WL 995363, at *5. In , the Eighth Circuit pointed out that Bonenberger had presented “persuasive evidence” that the position for which he was denied a transfer involved significant Id. Bonenberger supervisory duties, offered more contact with command rank officers, and made it Bonenberger “significantly” more likely that he would be promoted to Lieutenant. (citing , 810 F.3d at 1105, 1108). In , the Eight Circuit had found that, combined, those facts “offered a material change in working conditions” that provided “sufficient evidence to Bonenberger Muldrow support the conclusion that Sgt. Bonenberger suffered an adverse employment action.” that a transfer she was denied would have been “higher profile” and had other advantages, but the Eighth Circuit found that evidence insufficient in the absence of persuasive evidence Muldrow that “the transfer would have resulted in a material, beneficial change to her employment.” , 2022 WL 995363, at *5. In particular, the Eighth Circuit noted that Muldrow had Id. admitted that the transfer would not have increased her rank or pay, and that the denial “did not harm her career prospects.” Like Bonenberger, Plaintiff here has produced evidence that he lost contact with Muldrow command rank officers and suffered other undesirable changes in his working conditions as a result of his transfer. But unlike Bonenberger—and plainly dispositive after — Muldrow Plaintiff has not produced evidence that his transfer caused him any actual harm, such as a decrease in rank or pay, or harm to his career prospects. Thus, following , the Court Muldrow cannot find that Plaintiff’s evidence is enough for a reasonable trier of fact to find that he suffered an adverse employment action. , 2022 WL 995363, at *5. The City has demonstrated that there is no genuine dispute as to whether Plaintiff’s involuntary transfer out of Nuisance constituted an adverse employment action, and it is eIIn. titledC toou jnutd IgIm: eDnetn aisa la omf aTtrtearn osffe lar w as to Plaintiff’s Count I. In Count II, Plaintiff alleged that the City discriminated against him when it did not rehire him to the Animal Abuse Investigator position. Doc. 137 at 31. The Court found that See, e.g. McCullough v. Real Foods, Inc. see Plaintiff had made a prima facie case for failure to promote, which is an adverse employment AuBuchon v. Geithner action. , , 140 F.3d 1123, 1126 (8th Cir. 1998); Muldrow , 743 F.3d 638, 643 (8th Cir. 2014) (“Unquestionably, failure to promote can constitute an adverse employment action . . . .”). In , however, the Eighth Circuit explained that, when “determining if denial of a sought-after transfer constitutes an adverse Muldrow employment action,” the Court looks to the same factors that it does when deciding “whether [an] involuntary transfer constitute[s] an adverse employment action.” , 2022 WL Bonenberger 995363, at *5 (evaluating whether the “sought-after transfer would have resulted in a material, beneficial change to [Muldrow’s] employment”) (quoting , 810 F.3d at 1108) (where the plaintiff “applied for” a position and a female employee was hired instead of him, the Court construed the claim as one for “denial of a sought-after transfer”)). Because transferred out of—the loss of which the Court has found did not constitute an adverse employment action as a matter of law—the denial of that transfer likewise cannot constitute an adverse employment action. See Muldrow, 2022 WL 995363 at *5. Thus, for the reasons set forth with respect to Plaintiff's involuntary transfer out of Nuisance, the City has demonstrated that there is no genuine dispute as to whether the denial of his transfer back to Nuisance was an adverse employment action, and the City is entitled to judgment as a matter of law as to Plaintiffs Count II. CONCLUSION Under the Eighth Circuit’s recent decision in Muldrow v. City of St. Louis et al, — F.4th —, 2022 WL 995363 (8th Cir. Apr. 4, 2022), the City has shown that there is no genuine dispute of material fact as to whether Plaintiff suffered an adverse employment action, and it is entitled to judgment as a matter of law on Counts | and II. Accordingly, IT IS HEREBY ORDERED that the City of St. Louis’s Motion to Alter Judgment, Doc. [140], is GRANTED. The City is entitled to judgment on Counts I and IJ, the only remaining claims in Plaintiff's Third Amended Complaint. A separate Order of Judgment shall be issued herewith.

Dated this 15‘ day of April, 2022.

SARAH E. PITLYK UNITED STATES DISTRICT JUDGE