Betty Grooms v. Judge Steven A. Privette, in his individual capacity only

United States Court of Appeals
For the Eighth Circuit
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No. 24-2019
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Betty Grooms
lllllllllllllllllllllPlaintiff - Appellant
v.
Judge Steven A. Privette, in his individual capacity only; Alice Bell, in her
individual capacity only, also known as Alice Privette
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: January 15, 2025
Filed: February 4, 2025
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Before LOKEN, ARNOLD, and KELLY, Circuit Judges.
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ARNOLD, Circuit Judge.
A Missouri clerk of court, Betty Grooms, brought suit under 42 U.S.C.
§ 1983 against her political rival, Alice Bell, and Bell’s husband, Judge Steven
Privette. Grooms claims that the defendants violated her First Amendment rights
by discriminating and retaliating against her and that they violated her substantive

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due process rights as well. The district court1 dismissed her claims, holding that
the defendants did not violate the plaintiff’s clearly established First Amendment
rights and did not violate her substantive due process rights, clearly established or
otherwise. Because we agree, we affirm.
Since the district court dismissed Grooms’s claims on the pleadings, we first
recite the salient factual allegations in her complaint. Grooms, a Republican,
defeated Bell, a Democrat, in an election for the office of Oregon County Circuit
Clerk. Bell, who had been serving the county as a Deputy Clerk, retained her job
under Grooms. Three years later, Bell married Privette, a Republican and the
Presiding Judge for a judicial circuit that encompasses Oregon County.
Thereafter, Bell and Privette were occasionally uncooperative with Grooms.
Bell disobeyed an instruction from Grooms to train another Deputy Clerk. And
Privette rejected Grooms’s request to replace Bell as his courtroom clerk for a civil
case. To no avail, Grooms told him that the Office of State Courts
Administrator—“OSCA”—had recommended the replacement. With a court
reporter present, Privette loudly complained about her intervention and warned her
that he would have the sheriff remove her from his courtroom if she persisted.
Tensions escalated dramatically in the months that followed. Bell resigned
and announced she would run for Circuit Clerk, this time as a Republican. Around
the same time, Privette ordered Grooms to prepare a spreadsheet listing over three
years’ worth of Oregon County criminal cases and identifying the completion date
for any bill of costs in each case, the date each bill of costs was properly certified
and filed, and the expected amount of the costs the state would reimburse.
Working with OSCA, Grooms prepared the requested spreadsheet, but Privette
rejected it. Twice more, Privette ordered her to prepare a spreadsheet providing the
requested information, and twice more he rejected Grooms’s attempts to comply.
1The Honorable Douglas Harpool, United States District Judge for the Western
District of Missouri.
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Privette then appointed a prosecutor to prosecute Grooms for criminal
contempt, and the prosecutor duly filed a motion for contempt with Privette.
Grooms moved to dismiss the proceedings, moved to assign another judge to
preside over them, and petitioned the Missouri Court of Appeals for writs of
prohibition and mandamus, but all these maneuvers proved unsuccessful.
Finally, Grooms petitioned the Missouri Supreme Court, which broke the
trend by issuing a writ of prohibition requiring the dismissal of the contempt
motion. State ex rel. Grooms v. Privette, 667 S.W.3d 92, 100 (Mo. banc 2023).
The Court reasoned that Missouri courts can generally punish for contempt only to
safeguard their functioning as judicial tribunals and that Grooms’s conduct did not
threaten that functioning. Id. at 98. Grooms did have duties to calculate costs in
criminal cases, prepare bills of costs identifying expenses chargeable by counties
to the state, and facilitate reimbursement to the counties. Id. at 97–98. But her
alleged misconduct, which purportedly affected the reimbursement to a county,
was “unrelated to the resolution of any issue pertaining to” any case in which her
duties arose and did not affect the “Court’s budget nor otherwise affect the Court’s
ability to operate in its judicial role.” Id. at 98.
Meanwhile, Grooms had won reelection as Circuit Clerk after Bell dropped
out of the race. Still unhappy about her treatment on the job and about the
contempt proceedings, which cost her over $39,000 in litigation expenses, Grooms
brought her First Amendment and substantive due process claims against Bell and
Privette in the case now before us.
Because the district court granted a motion to dismiss that was filed after the
pleadings closed, we treat the motion as one for judgment on the pleadings,
Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990), and review it
under the standard applicable to motions to dismiss. Gallagher v. City of Clayton,
699 F.3d 1013, 1016 (8th Cir. 2012). We conduct a de novo inquiry, accepting the
plaintiff’s nonconclusory allegations as true, and ask whether it is plausible that
the defendants are liable. Bresnahan v. City of St. Peters, 58 F.4th 381, 384 (8th
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Cir. 2023). We will uphold a dismissal based on qualified immunity if the
immunity is apparent on the face of the plaintiff’s complaint. Bradford v.
Huckabee, 394 F.3d 1012, 1015 (8th Cir. 2005). Qualified immunity attaches if the
defendants’ conduct did not “violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Billingsley v. St. Louis
Cnty., 70 F.3d 61, 62 (8th Cir. 1995).
We start our consideration of the case with Grooms’s First Amendment
claim, and, because we are satisfied that any law Bell or Privette violated was not
clearly established, we hold that they enjoy qualified immunity with respect to that
claim. Grooms asserts that Bell and Privette discriminated and retaliated against
her because she was a Republican. It is true, as Grooms contends, that the First
Amendment prohibits government discrimination or retaliation “against public
employees based on political affiliation, where political affiliation is not an
appropriate job requirement.” Charleston v. McCarthy, 926 F.3d 982, 989 (8th
Cir. 2019). But Grooms has identified no action Bell or Privette took against her
that qualifies as discriminatory or retaliatory under clearly established law.
The general rule in our circuit is that a government employee asserting a
First Amendment discrimination or retaliation claim must show she suffered an
“adverse employment action.” See id.; In re Kemp, 894 F.3d 900, 906 (8th Cir.
2018). This rule derives from an analogy we have drawn between such claims and
employment discrimination claims under Title VII. See Bechtel v. City of Belton,
250 F.3d 1157, 1162 (8th Cir. 2001). To prevail, our cases require an employee to
establish that she suffered “a material change in the terms or conditions” of her
employment, see Jones v. Fitzgerald, 285 F.3d 705, 713 (8th Cir. 2002);
Charleston, 926 F.3d at 989, and establish that the change would “chill a person of
ordinary firmness” from continuing to engage in activity protected by the First
Amendment, see Kemp, 894 F.3d at 906. We acknowledge that the Supreme Court
has not expressly held that a retaliatory or discriminatory action must affect terms
or conditions of employment, see Rutan v. Republican Party of Ill., 497 U.S. 62,
72–79 (1990), that some circuits have long rejected such a requirement, see Power
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v. Summers, 226 F.3d 815, 820 (7th Cir. 2000), and that others have abandoned it
as understandings of Title VII have changed, see Lore v. City of Syracuse, 670
F.3d 127, 163–64 (2d Cir. 2012). But we have no occasion to reconsider the
requirement here because Grooms accepts it.
And in applying it we conclude that it is at least unclear whether Bell or
Privette materially changed the terms or conditions of Grooms’s employment.
Grooms’s main argument is that Bell and Privette did so by inducing a prosecutor
to pursue a baseless criminal contempt prosecution against her. Yet the
prosecution had no obvious effect on Grooms’s employment. Despite the
prosecution, she has apparently enjoyed office without interruption and without
any change in basic terms or conditions of employment like “pay or benefits” or
“job duties or responsibilities.” See Wagner v. Campbell, 779 F.3d 761, 767 (8th
Cir. 2015). She was never convicted or sentenced, cf. Wood v. Georgia, 370 U.S.
375, 382–83 (1962), nor did the prosecution otherwise diminish her “future career
prospects,” cf. Kemp, 894 F.3d at 906. Instead, the Missouri Supreme Court
ordered the prosecution dismissed, and she won reelection as Circuit Clerk.
Though she may still bristle at the public—and, in her view, false—allegations
against her, we are wary of treating one public official’s allegations against
another public official as discrimination or retaliation without more. See Breaux v.
City of Garland, 205 F.3d 150, 158 (5th Cir. 2000).
Grooms has not cited any authority that undermines our doubts about
whether inducing the contempt prosecution was an adverse employment action.
Since she has the burden to show that clearly established law forbade the
inducement, see Lewis v. City of St. Louis, 932 F.3d 646, 649 (8th Cir. 2019), we
are left to conclude that Bell and Privette enjoy qualified immunity. We note, as
well, that our own research has revealed no authority clearly establishing that
inducing the contempt prosecution was an adverse employment action. The
Supreme Court recognized in Hartman v. Moore that inducing a criminal
prosecution against a private citizen in retaliation for her speech may violate the
First Amendment even if it does not result in a conviction or sentence. 547 U.S.
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250, 256, 262 (2006). And the Court understandably did not suggest that a private
citizen needs to show any effect on the terms or conditions of her employment to
make out a claim. The Court has not, however, held that elected officials enjoy
similar protection against prosecutions initiated because of their political
affiliation. At most, it has suggested in dictum that Hartman extends to elected
officials. See Houston Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 477 (2022). Since
we have historically distinguished between First Amendment claims brought by
public officials, who must prove an adverse employment action, Jones, 285 F.3d at
713, and ones brought by private citizens, who need not, Williams v. City of Carl
Junction, 480 F.3d 871, 877–78 (8th Cir. 2007); Keenan v. Tejeda, 290 F.3d 252,
258 (5th Cir. 2002), we cannot say it was clear that this dictum created an
exception to our usual approach. We are aware that the Sixth Circuit has held that
filing a lawsuit against a public official may be an adverse action. See Benison v.
Ross, 765 F.3d 649, 660 (6th Cir. 2014). Still, assuming its reasoning reached a
prosecution of an elected official like Grooms, the sort of “robust consensus” of
persuasive authority that might clearly settle the law remains lacking. See Lyons v.
Vaught, 875 F.3d 1168, 1172 (8th Cir. 2017); cf. Lane v. Nading, 927 F.3d 1018,
1023 (8th Cir. 2019).
Not out of arguments, Grooms purports to identify several adverse
employment actions she suffered other than the inducement of the contempt
prosecution, but we have no difficulty in concluding that her characterization of
them is incorrect. That Bell ignored Grooms’s instruction to train a Deputy Clerk
was an isolated act of insubordination. Managing that occurrence was Grooms’s
job as Bell’s supervisor; it was hardly a material new term or condition of her
employment.
Nor did Privette’s refusal to let Grooms replace Bell as courtroom clerk for
a single civil case materially change her employment terms or conditions. Grooms
does not allege that she was entitled to make the assignment, only that OSCA
recommended it. We are doubtful that not allowing Grooms to make one case
assignment would be material even if she were entitled to do so, and we are
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confident that merely rejecting one recommended case assignment was not
material here.
We are equally confident that the additional work Grooms had to do to
prepare spreadsheets requested by Privette reflected no material change in the
terms or conditions of her employment. We have said in other contexts that an
“increased workload that materially changes an employee’s duties can constitute
an adverse employment action,” see Kelleher v. Wal-Mart Stores, Inc., 817 F.3d
624, 631 (8th Cir. 2016), but Grooms alleges nothing like that. She concedes that
she had a duty to comply with Privette’s orders to process bills of costs. She
objects only to Privette’s attempt to control the “detailed manner” in which she
documented her compliance. There is no indication in Grooms’s complaint,
however, that documenting her compliance was a duty she would have avoided but
for Privette’s request for spreadsheets. Nor does her complaint suggest that
documenting her compliance in the requested spreadsheets interfered with her
performance of her other duties.
Even taking all of Bell’s and Privette’s actions against Grooms together,
they did not rise to the level of an adverse employment action under clearly
established First Amendment law. It is uncertain whether Privette’s inducement of
a criminal contempt prosecution against Grooms was an adverse employment
action, and Bell’s and Privette’s remaining conduct had little or no effect on the
terms or conditions of Grooms’s employment. We know of no authority clearly
establishing that adding the latter conduct to the former resulted in a material
change to her employment terms or conditions. We therefore hold that Bell and
Privette enjoy qualified immunity with respect to Grooms’s First Amendment
claim.
This leaves only Grooms’s substantive due process claim for us to consider,
and we readily conclude that this claim is subject to dismissal, too. There is no
need to distinguish between clearly and less clearly established law to reach this
conclusion. The claim is missing a central element: a serious deprivation of an
interest protected by the Fourteenth Amendment’s Due Process Clause.
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To prevail under our court’s precedents, a party who claims that a defendant
violated her substantive due process rights must show that she has a “protected
life, liberty, or property interest.” Singleton v. Cecil, 176 F.3d 419, 424 (8th Cir.
1999) (en banc). And not just any impingement on such an interest will do; the
defendant’s conduct must shock the conscience. Hess v. Ables, 714 F.3d 1048,
1053 (8th Cir. 2013). Though Grooms insists that she suffered cognizable injuries
to property and liberty interests in her occupation and reputation, her argument
does not withstand scrutiny under these standards.
Take her primary contention first. She says Bell and Privette deprived her of
a property or liberty interest in her first and second terms as Circuit Clerk. But a
moment’s reflection reveals this is untrue. Grooms enjoyed the entirety of the first
term, won reelection, and has served the second term without interruption.
Insofar as Grooms suggests that she had a property or liberty interest in
performing her duties, we need only observe that any interference with that
performance was less than conscience-shocking. The sum of the interference
attributable to Bell and Privette consists of Bell’s one-off failure to train a Deputy
Clerk as Grooms ordered, Privette’s rejection of a recommendation to replace Bell
with Grooms as a courtroom clerk in a single case, and Privette’s three requests
that Grooms prepare spreadsheets documenting how she processed bills of costs.
Regarding the last, recall that Grooms objects to Privette’s effort to control the
“detailed manner” in which she documented her work and not to documentation
itself. With that in mind, it seems to us that Bell’s and Privette’s interference with
Grooms’s discharge of her duties was far more like the “ordinary incidents” and
frustrations of public employment, see Tucker v. City of Hot Springs, 204 F.3d
783, 784 (8th Cir. 2000) (per curiam); Campbell v. Williams, 11 F. App’x 685,
685–86 (8th Cir. 2001) (per curiam), than the “brutal and inhumane” conduct that
violates the Fourteenth Amendment, see Keefe v. City of Minneapolis, 785 F.3d
1216, 1223 (8th Cir. 2015); Robbins v. Becker, 794 F.3d 988, 994 (8th Cir. 2015).
We appreciate, of course, that Privette’s conduct in engineering Grooms’s
contempt prosecution was not so ordinary, but we can’t see how it affected any
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interest Grooms had in performing her duties on the facts she alleges. The
Missouri Supreme Court ordered the prosecution dismissed, and Grooms does not
allege that the prosecution had collateral effects on her work.
We are, lastly, unconvinced that engineering the prosecution violated
Grooms’s substantive due process rights in a different way: by tainting Grooms’s
reputation. It is well settled that an “interest in reputation alone is neither liberty
nor property guaranteed against state deprivation without due process of law.”
Kemp, 894 F.3d at 909; Zutz v. Nelson, 601 F.3d 842, 850 (8th Cir. 2010);
Liscomb v. Boyce, 954 F.3d 1151, 1155 (8th Cir. 2020).
We conclude that Bell and Privette did not deprive Grooms of a liberty or
property interest protected by the Fourteenth Amendment’s Due Process Clause.
Grooms’s substantive due process claim is therefore, like her First Amendment
claim, inadequate under our pleading standards. The district court was right to
dismiss both claims.
Affirmed.
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