Labor & Employment Law Daily Wrap Up, RETALIATION—8th Cir.: Employee’s claim that he was discharged in retaliation for reporting excessive force of fellow police officer fails, (Aug 21, 2025)

By Ronald Miller, J.D.

Because any cause of action for the deprivation of occupational liberty [is] confined to a claim under procedural due process,” the employee’s substantive due process claim fails.

A police officer who was fired from his position by a municipal police department in April 2021 after he was charged with tampering with physical evidence and abuse of office, failed to revive his claim of First Amendment retaliation, ruled the Eighth Circuit. A district court granted the defendants’ motions for summary judgment and for judgment on the pleadings against the officer’s complaint allegations of federal claims under 42 U.S.C. § 1983 for violations of his First, Fourth, and Fourteenth Amendment rights and various state-law claims. As to the merits of the employee’s Whistleblower Act claim, it failed because he admitted he was fired because of the criminal charges and he failed to show he was fired because he reported a “violation of [] law” or that his firing was “unrelated to his own misconduct or poor job performance” (Brown v. City of Dermott Arkansas, No. 23-3174 (8th Cir. Aug. 20, 2025)).

Excessive force incident. The employee was a sergeant at the Dermott Police Department. He supervised his brother who was also a police officer and who also sued the employer. Both brothers saw a fellow officer grab an arrestee by the neck while the arrestee was chained to a pole in November 2019. The employee reported the incident to the police captain, who told him to document it. The next day, the police chief asked the employee about the incident, and he recounted the events. The employee also reported the incident to city officials.

Robbery incident. Six days after the incident, officers responded to a robbery at a convenience store. Surveillance video showed the suspect grabbing handfuls of coins and stuffing them in his pockets. An officer went to the suspect’s house after the robbery, collected a bag of quarters, and handed it to the employee.

Missing quarters. The employee’s report regarding the incident stated that the suspect’s home contained “a lot of quarters in a green Crown Royal bag,” but the property form he filled out did not mention the bag of quarters, and the quarters were not turned into the police department. A fellow officer flagged the discrepancy between the forms.

The convenience store owner said that the employee told him the quarters were not recovered. Thereafter, the police chief referred the quarters incident to a local prosecutor, who referred it to the Arkansas State Police for investigation.

After finishing their investigation, state police referred the matter back to the local prosecutor, who talked with the store owner and confirmed that about $20 worth of quarters had not been returned. The employee was charged with tampering with physical evidence and abuse of office in early March 2021. He was never arrested but was fired on April 19, 2021.

Sometime after the employee was charged, the store owner reported that the quarters had been returned. Thereafter, the charges against the employee were dismissed.

First Amendment retaliation. The employee argued that he was fired in retaliation for exercising his First Amendment rights by reporting the fellow officer’s excessive use of force. To survive summary judgment, the employee needed to show that there were genuine fact disputes as to whether “the adverse action was motivated at least in part by the exercise of protected activity.”

The Eighth Circuit concluded that he had failed to do so. The employee was fired a year and a half after he reported the fellow officer’s excessive force misconduct. Further, he had maintained throughout the case that he was fired only because of the criminal charges. He also alleged a cat’s paw theory of liability—that the decisionmaker was motivated by the discriminatory animus of the fellow officer or the police chief. Because the employee conceded that he was fired because of the charges, and he presented no evidence that the prosecutor’s decision to charge him was a conduit for either the fellow officer’s or the police chief’s discriminatory motives, his theory failed.

Malicious prosecution claim. The employee’s malicious prosecution claim also failed. He was never arrested and was only summoned to state court to answer for his charges, thus he was never seized under the Fourth Amendment. As to the merits of his malicious prosecution claim, it failed because there was probable cause to charge him with tampering with evidence and abuse of office.

Due process claims. As an initial matter, the appeals court concluded that the employee’s substantive due process claim against a fellow officer—that the fellow officer deprived him of due process by fabricating evidence against him—was “governed by the Fourth Amendment,” not the Due Process Clause. As for his claim that the employer deprived him of due process by firing him for reporting excessive force, “an employee’s occupational liberty is not protected by substantive due process when the employee is discharged by a governmental employer.” Because any cause of action for the deprivation of occupational liberty [is] confined to a claim under procedural due process,” the employee’s substantive due process claim failed.

Procedural due process claim. The employee’s procedural due process claim fared no better.

To succeed, the employee needed to show that Arkansas law gave him a property interest in his job. In Arkansas, “an employer may terminate the employment of an at-will employee without cause” unless an employee relies on a personnel manual or employment agreement with a for-cause termination provision. Here, the employee created no dispute that he was anything other than an at-will employee. Moreover, he had not shown any entitlement to continued employment under an employee manual or employment agreement.

State-law claims. Next the employee argued that the district court should not have exercised its supplemental jurisdiction over his state-law claims, and they should have survived summary judgment. But it was “within the district court’s discretion to exercise supplemental jurisdiction [on Brown’s state law claims] after dismissal of the federal claim” because they “derive from a common nucleus of operative fact, and if considered without regard to their federal or state character, are such that they ordinarily would be expected to be adjudicated in one judicial proceeding.”

Whistle-Blower claim. Turning to the merits, the appeals court found that the employee’s Whistle-Blower Act claim failed because he admitted he was fired because of the criminal charges and he failed to show he was fired because he reported a “violation of [] law” or that his firing was “unrelated to his own misconduct or poor job performance.”

The case is No. 23-3174.

Judge: Kobes, J.

Attorneys: Lucien R. Gillham (Sutter & Gillham) for Lee Edward Brown. Matthew Keith Wren, Arkansas Municipal League, for City of Dermott Arkansas, Cobe Heard and Eric Evans.

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