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8th Cir. Clarifies Sec. 1983 Race Discrimination and Retaliation Law

By Aditi Mukherji, JD on December 20, 2013 | Last updated on March 21, 2019

The Eighth Circuit Court of Appeals recently preserved a high-profile employment discrimination case against the Arkansas State Capitol Police Chief Darrell Hedden over an African American officer's firing.

The case sheds light on qualified immunity from Section 1983 racial discrimination and retaliation claims.

Racial Epithets and Termination

Officer Richard Burton alleges that he was a victim of race discrimination and retaliation when he was fired in 2010.

The decision recounts Burton's complaint of repeat use of racial epithets by Officer Norman Gomillion, an officer with whom Burton worked. Another officer recounted hearing Gomillion saying, "[Y]ou don't do that n****r thing, you don't date n****rs, do you?" He also allegedly "referred to [President] Obama at that time as being the n****r in the office that was going to bring the United State[s] down."

Burton made several complaints about the epithets. Soon after, Chief Hedden fired Burton for being late to work and for filing an accident report late. Burton claimed white officers with worse records hadn't been fired.

No Summary Judgment for Section 1983 Race Discrimination

A district court denied Chief Hedden's motion for summary judgment based on qualified immunity on Burton's Section 1983 claim alleging a racially discriminatory termination.

On appeal, the Eighth Circuit agreed with the lower court's decision and held that Burton satisfied the McDonnell-Douglas framework. The panel held that a jury could reasonably find that "a similarly situated white employee had been treated differently when he engaged in comparably serious conduct and that the reasons the Chief asserted for Burton's termination were pretexts for race discrimination."

As a result, Hedden was not entitled to qualified immunity -- and as a result, summary judgment -- on Burton's discrimination claim.

Qualified Immunity from Section 1983 Retaliation Claim

But Burton's retaliation claim didn't fare as well. The three-member appeals panel ruled that the the district court erred in denying the Chief qualified immunity on Burton's equal protection claim for retaliation under Section 1983.

Citing several cases from other circuits, the panel determined "there is no clearly established right under the Equal Protection Clause to be free from retaliation." Section 1983 provides a vehicle for redressing claims of retaliation on the basis of the First Amendment, but not on equal protection grounds.

The court ducked on Burton's Title VII claims against the state by declining to exercise pendent jurisdiction.

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