Federal appeals court reinstates public employee’s retaliation claim

Wednesday, October 25, 2000

A federal appeals court panel has reinstated the First Amendment claim
of a former Arkansas state employee who alleged state officials retaliated
against him for reporting misconduct by a superior.

Claude Graves, a former tax auditor with the Arkansas Department of
Finances, filed a grievance in February 1997 contending that his supervisor,
Charles Stone, improperly denied him a promotion.

When the director of the finance department questioned Graves in April
1997 about his grievance, Graves revealed that auditors were building a cabin
for Stone on state time. This revelation prompted an investigation and led to
subsequent disciplinary action against Stone.

In May 1997, Graves filed a second grievance claiming that Stone was
harassing him for filing the first grievance and for reporting the misuse of
personnel. Graves later filed a third grievance against Stone on similar

Shortly after the state grievance committee rejected Graves’ first
grievance, finance department officials terminated him, citing his work on
Stone’s cabin, his use of a state vehicle for a trip to Canada and other
disciplinary violations.

Graves sued in federal court, alleging that department of finance
officials had violated his First Amendment rights by retaliating against him
for blowing the whistle on Stone and for filing his grievances. Graves also
alleged that Stone had harassed him in violation of state and federal law.

In order to prove a First Amendment retaliation case, a public
employee must show that he or she has engaged in protected speech. This
requires showing that the speech was on a matter of public concern and that the
free-speech interests in the case outweigh the employer’s efficiency

The employee must also show that his or her protected speech was a
substantial or motivating factor in his or her termination.

A federal district court dismissed all of Graves’ claims. With respect
to his retaliation claim, the lower court determined that Graves’ speech
touched on a matter of public concern and outweighed the state officials’
efficiency interests. However, the lower court concluded Graves’ protected
speech was not a substantial factor in his discharge.

On appeal, a three-judge panel of the 8th U.S. Circuit Court of
Appeals reinstated Graves’ retaliation claim in Graves v. Arkansas Department of Finance and

“We find that Graves established a genuine issue of material fact as
to whether his speech was a substantial or motivating factor in his
termination,” the panel wrote in its Oct. 17 opinion.

The panel determined that a jury could infer that “Stone sought to
punish Graves because of Grievance I and the resulting cabin-work

The state officials had argued that the retaliation claim should fail
because too much time elapsed between Graves’ protected speech and his

However, the 8th Circuit panel rejected this argument, writing:
“Although there was a time lag of some months between Graves’ protected speech
and his termination, state police officers were completing their investigation
during this period, and meanwhile Graves was being closely monitored and the
Office atmosphere was tense.”

The appeals court upheld the lower court’s dismissal of the harassment
claim, finding that the incidents alleged “do not constitute harassment or a
hostile work environment.”

The attorneys on both sides of the case could not be reached for

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