Evelyn Susan Hafley v. Janette M. Lohman, 90 F.3d 264 (8th Cir. 1996). · Go Syfert
Evelyn Susan Hafley v. Janette M. Lohman, 90 F.3d 264 (8th Cir. 1996). Cases Citing This Book View Copy Cite
Quick Summary

Qualified immunity does not apply at the pleading stage where a public employee alleges retaliation for speech on a matter of public concern that outweighs the state's interest in efficiency.

A state employee alleges supervisors retaliated against her for refusing to hide files related to a criminal investigation and for reporting the incident. The defendants move to dismiss based on qualified immunity, arguing the complaint fails to allege a violation of a clearly established constitutional right. The court reviews the denial de novo, accepting the plaintiff's allegations as true. It applies the rule that qualified immunity is defeated if the plaintiff alleges a violation of a clearly established right. The court determines that the employee's speech regarding the handling of public funds constitutes a matter of public concern. Furthermore, her interest in exposing potential obstruction of justice outweighs the state's interest in efficiency. Consequently, the court holds that the defendants are not entitled to qualified immunity at the pleading stage, affirming the district court's order.

202 citation events (147 in the last 25 years) across 22 distinct courts.
Treatment trajectory · 1996 → 2026 · click a year to view as-of
1996 2011 2026
Cited for
At page 266 Reviewing district court's denial of motion to dismiss71 citing cases“it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”8 citing courts quote it · 66 listed here
  • Ackerman, No. 4:25-cv-00948 (W.D. Mo. Sept. 15, 2026).
    Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996).
  • Buchanan, No. 2:25-cv-00070 (E.D. Mo. May 11, 2026).
    “Qualified immunity is an affirmative defense, to be upheld in a motion to dismiss only when the immunity can be established on the face of the complaint.” Bradford v. Huckabee, 330 F.3d 1038, 1041 (8th Cir. 2003) (citing Hafley v. Lohman,…
  • Wilder v. Honeywell Fed. Mfg. & Tech., LLC, No. 4:24-cv-00305 (W.D. Mo. Oct. 24, 2024).
    Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996).
  • Shinneman v. Cerner Corp., No. 4:24-cv-00026 (W.D. Mo. May 23, 2024).
    Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996).
  • Webb v. Medicalodges, Inc., 728 F. Supp. 3d 1019 (W.D. Mo. 2024).published
    Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996).
  • George Par v. Wolfe Clinic, P.C., 70 F.4th 441 (8th Cir. 2023).published
    “We affirm a Rule 12(b)(6) dismissal if ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’” Double D Spotting Serv. v. Supervalu, Inc., 136 F.3d 554, 557 (8th C…
  • Hefley v. Redington, No. 2:21-cv-00041 (E.D. Mo. Mar. 16, 2023).
    Dismissal on the basis of qualified immunity is inappropriate “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Hafley v. Lohman, 90 F.3d 264, 266 (8th…
  • Allen v. Forney Indus., Inc., No. 4:22-cv-00421 (W.D. Mo. Jan. 25, 2023).
    Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996). ¶ 16.) When used, the bonded abrasive wheels spin at speeds from 4,400 RPM to 19,100 RPM.
  • Slaughter v. Bass Pro, Inc., 648 F. Supp. 3d 1108 (W.D. Mo. 2023).published
    Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996). 2 Plaintiff refers collectively to all named defendants as “Defendant Bass Pro.” Number one seller in our company and number one seller at our store, come check it out.
  • Hammock v. Harbor Freight Tools USA, Inc., No. 4:22-cv-00312 (W.D. Mo. Oct. 24, 2022).
    Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996).
Show 56 more citing cases
  • Tuter v. Freud Am., Inc., No. 4:22-cv-00282, 2022 WL 4636225 (W.D. Mo. Sept. 30, 2022).
    Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996).
  • Berry v. Hennepin Cnty., No. 0:20-cv-02189 (D. Minn. Aug. 19, 2022).
    A motion to dismiss based on qualified immunity may be granted “only when the immunity is established on the face of the complaint.” Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996) (internal quotation marks omitted).
  • Schnekloth v. Deakins, No. 5:21-cv-05131 (W.D. Ark. Apr. 7, 2022).
    Minn. 2021) (quoting Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996)).
  • Williams v. Brown, No. 4:20-cv-04079 (W.D. Ark. Apr. 4, 2022).
    Qualified immunity should be granted “on a 12(b)(6) motion only when the immunity is established on the face of the complaint.” Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996).
  • Baptist v. Chandler, No. 4:21-cv-00675 (E.D. Ark. Mar. 30, 2022).
    Hafley, 90 F.3d at 266; see also Bradford, 394 F.3d at 1015.
  • High Sch. Servicos Educacionais, Ltda. v. Choi, No. 4:21-cv-00029 (W.D. Mo. Feb. 22, 2022).
    Qualified immunity questions should be resolved at the earliest stage possible, Pearson v. Callahan, 555 U.S. 223 , 231-32 (2009), but application of qualified immunity at the motion to dismiss stage requires the defense to be “established…
  • Roberts v. Berry, No. 4:20-cv-00216 (E.D. Ark. Feb. 22, 2022).
    Charles, Mo., 244 F.3d 623, 627 (8th Cir. 2001) (citing Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996)).
  • Harris v. Wehco Video Inc, No. 2:21-cv-00040 (E.D. Ark. Feb. 22, 2022).
    Charles, Mo., 244 F.3d 623, 627 (8th Cir. 2001) (citing Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996)).
  • Drew v. Lance Camper MFG. CORP., No. 3:21-cv-05066, 2021 WL 5441512 (W.D. Mo. Nov. 19, 2021).
    Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996).
  • West v. MINACT, Inc., No. 4:21-cv-00228 (W.D. Mo. Sept. 30, 2021).
    Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996).
  • Berry v. Hennepin Cnty., No. 0:20-cv-02189 (D. Minn. Sept. 27, 2021).
    On a motion to dismiss, qualified immunity warrants dismissal “only when the immunity is established on the face of the complaint.” Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996) (internal quotation marks omitted).
  • Brock v. City of Ord, No. 4:21-cv-03085 (D. Neb. Sept. 17, 2021).
    To prevail on a motion to dismiss based on qualified immunity, "defendants must show that they are entitled to qualified immunity on the face of the complaint." Bradford v. Huckabee, 394 F.3d 1012 , 1015 (8th Cir. 2005) (citing Hafley v. L…
  • Salinas v. Hirachen, No. 0:20-cv-02245 (D. Minn. Aug. 25, 2021).
    On a motion to dismiss, qualified immunity is upheld “only when the immunity is established on the face of the complaint.” Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996) (internal quotation marks omitted).
  • Elder v. Putnam, No. 3:19-cv-00155 (E.D. Ark. Mar. 31, 2021).
    Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996), cert. denied, 519 U.S. 1149 (1997).
  • Northland Baptist Church of St. Paul v. Walz, 530 F. Supp. 3d 790 (D. Minn. 2021).published
    On a motion to dismiss, qualified immunity warrants dismissal “only when the immunity is established on the face of the complaint.” Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996) (internal quotation marks omitted).
  • Butler v. Augustine, No. 2019-1074 (D.D.C. May 6, 2020).published
    But “[t]o state a claim, a complaint need not assert that the alleged contract is legal in all respects; rather illegality is an affirmative defense,” and an “affirmative defense such as illegality can be the basis for granting a Rule 12(b…
  • Pharm. Care Mgmt. Ass'n v. Gerhart, 852 F.3d 722 (8th Cir. 2017).published
    Gorog v. Best Buy Co., 760 F.3d 787, 792 (8th Cir. 2014); Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996).
  • David Sample v. City of Woodbury, 836 F.3d 913 (8th Cir. 2016).published
    Gorog v. Best Buy Co., 760 F.3d 787, 792 (8th Cir. 2014); Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996).
  • Maia Falconi-sachs v. LPF Senate Square, LLC, 142 A.3d 550 (D.C. 2016).published
    To be sure, this court has acknowledged that a complaint may nonetheless be dismissed when affirmative defenses are “established on the face of the complaint.” Francis v. Rehman, 110 A.3d 615, 621 (D.C. 2015) (quoting Hafley v. Lohman, 90…
  • Patrick A. Dadd v. Anoka Cnty., 827 F.3d 749 (8th Cir. 2016).published
    At this early stage of the litigation, to warrant reversal, “defendants must show that they are entitled to qualified immunity on the face of the complaint.” Bradford v. Huckabee, 394 F.3d 1012 , 1015 (8th Cir. 2005) (citing Hafley v. Lohm…
  • United States v. $63,530.00 in United States Currency, 781 F.3d 949 (8th Cir. 2015).published
    Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir.1996).
  • Michael Francis & Queue, LLC v. Munir Rehman & HAK, LLC, 110 A.3d 615 (D.C. 2015).published
    An affirmative defense such as illegality can be the basis for granting a Rule 12(b)(6) motion to dismiss “only when the [defense] is established on the face of the complaint.” Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir.1996).
  • Brian Ulrich v. Pope Cnty., 715 F.3d 1054 (8th Cir. 2013).published
    Parkhurst v. Tabor, 569 F.3d 861, 865 (8th Cir.2009). " “[Dismissal is ' inappropriate unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Hafley v. Lohman…
  • N. Valley Commc'ns, LLC v. Qwest Commc'ns Corp., 711 F. Supp. 2d 1018 (D.S.D. 2010).published
    Whisman v. Rinehart, 119 F.3d 1303, 1308 (8th Cir.1997), and Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir.1996).
  • N. Valley Commc'ns, LLC v. Qwest Commc'ns Corp., 659 F. Supp. 2d 1062 (D.S.D. 2009).published
    Whisman v. Rinehart, 119 F.3d 1303, 1308 (8th Cir.1997), and Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir.1996).
  • Standing Rock Hous. Auth. v. United States Equal Emp. Opportunity Comm'n, 585 F. Supp. 2d 1112 (D.N.D. 2008).published
    “A district court must accept the allegations contained in the complaint as true, and all reasonable inferences from the complaint must be drawn in favor of the nonmoving party.” Id. (citing Hishon v. King & Spalding, 467 U.S. 69, 73 , 104…
  • Noble Sys. Corp. v. Alorica Cent., LLC, 543 F.3d 978 (8th Cir. 2008).published
    Bradford v. Huckabee, 394 F.3d 1012 , 1015 (8th Cir. 2005); Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996).
  • Garreaux v. United States, 544 F. Supp. 2d 885 (D.S.D. 2008).published
    Whisman v. Rine-hart, 119 F.3d 1303, 1308 (8th Cir.1997), and Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir.1996).
  • Mehl v. Canadian Pac. Ry., 417 F. Supp. 2d 1104 (D.N.D. 2006).published
    “A district court must accept the allegations contained in the complaint as true, and all reasonable inferences from the complaint must be drawn in favor of the nonmoving party.” Id. (citing Hishon v. King & Spalding, 467 U.S. 69, 73 , 104…
  • Polensky v. Cont'l Cas. Co., 397 F. Supp. 2d 1164 (D.N.D. 2005).published
    “A district court must accept the allegations contained in the complaint as true, and all reasonable inferences from the complaint must be drawn in favor of the nonmoving party.” Id. (citing Hishon v. King & Spalding, 467 U.S. 69, 73 , 104…
  • Schatz Fam. v. Franklin Cnty., 422 F.3d 655 (8th Cir. 2005).published
    As to the motion-to-dismiss defendants, the district court noted that it had erred in section IV of its September 27, 2002, opinion by failing to address the defendants’ assertions of qualified immunity, noting that once the defendants had…
  • Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588 (8th Cir. 2004).published 2 cites
    Hafley, 90 F.3d at 266. 7 Section 1983 creates a cause of action against "every person, who under color of any statute, ordinance, regulation, custom, or usage" subjects any person to deprivation of immunities secured by the Constitution o…
  • VanHorn v. Nebraska State Racing Comm'n, 304 F. Supp. 2d 1151 (D. Neb. 2004).published
    Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir.1996).
  • Schatz Fam. v. Lynne Geirer, 346 F.3d 1157 (8th Cir. 2003).published
    The district court announced the proper standard for addressing qualified immunity at the Rule 12(b)(6) stage— whether immunity is established on the face of the complaint, Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir.1996), cert. denied, 5…
  • Randall R. Bradford v. Mike Huckabee, 330 F.3d 1038 (8th Cir. 2003).published
    The district court needed to first determine whether the complaint alleged enough facts to demonstrate the violation of a clearly established statutory or constitutional right arising under the First Amendment and civil conspiracy statute.…
  • No. 02-3929, 330 F.3d 1038 (8th Cir. 2003).published
    Hafley, 90 F.3d at 266. 6 As part of this determination, the district court also needed to follow a two-step inquiry to determine whether Bradford's purported speech, as a public employee, was protected by the First Amendment.
  • Hammett v. Oklahoma Dept. of Mental Health & Substance Abuse Servs., 153 F.3d 727 (10th Cir. 1998).published
  • Cent. Airlines, Inc. v. United States, 138 F.3d 333 (8th Cir. 1998).published
  • John Young v. City of St. Charles, 244 F.3d 623 (8th Cir. 2001).published
  • Gart v. Electroscope, Inc., 24 F. Supp. 2d 969 (D. Minn. 1998).published
  • Mercer v. City of Cedar Rapids, 79 F. Supp. 2d 1055 (N.D. Iowa 1999).published
  • Stanton v. State Farm Fire & Cas. Co., 78 F. Supp. 2d 1029 (D.S.D. 1999).published
  • Daniel J. Leveto v. Robert A. Lapina, 258 F.3d 156 (3d Cir. 2001).published
  • Jacob Todd v. John R. Smith, No. 96-1520 (8th Cir. Jan. 10, 1997).unpublished
  • Whisman ex rel. Whisman v. Rinehart, 119 F.3d 1303 (8th Cir. 1997).published
  • Springdale Educ. Ass'n v. Springdale Sch. Dist., 133 F.3d 649 (8th Cir. 1998).published
  • Breedlove v. Earthgrains Baking Companies, Inc., 140 F.3d 797 (8th Cir. 1998).published
  • Ronnie Randolph v. Bill Rodgers, 253 F.3d 342 (8th Cir. 2001).published
  • Maitland v. Univ. of Minnesota, 260 F.3d 959 (8th Cir. 2001).published
  • Nancy Wever v. James Carman, 388 F.3d 601 (8th Cir. 2004).published
  • Marybeth Dornheim v. Michael Sholes, 430 F.3d 919 (8th Cir. 2005).published
  • Ross Parkhurst v. Stephen Tabor, No. 08-2610 (8th Cir. June 25, 2009).published
  • T.S.H. v. Green, 996 F.3d 915 (8th Cir. 2021).published
  • United States v. James B. Nutter & Co., No. 4:20-cv-00874 (W.D. Mo. Nov. 12, 2021).
  • DOUBLE D SPOTTING Serv., INC. v. SUPERVALU, INC., 136 F.3d 554 (8th Cir. 1998).published
  • Morstad v. Dep't of Corr. & Rehab., 147 F.3d 741 (8th Cir. 1998).published
At page 267 Balancing first amendment rights against public employer interests6 citing casesbalancing an employee's First Amendment rights against a public employer's interests2 citing courts put it this way · 5 listed here
  • Johnson v. City of Leadington, No. 4:19-cv-02282, 2020 WL 6117944 (E.D. Mo. Oct. 16, 2020). 3 cites
    (The Pickering balance understandably favors the plaintiff when the test is based solely on the allegations in the complaint.)
  • Duncan v. Jack Henry & Assocs., Inc., 617 F. Supp. 3d 1011 (W.D. Mo. 2022).published
    (Doc. 46.) Hafley v. Lohman, 90 F.3d 264, 267 (8th Cir. 1996). 3 Every party with the exception of UMR, Inc., refers to “the Plan” to mean both the Defendant The Jack Henry & Associates, Inc., Group Health Benefit Plan and the actual plan…
  • Johnson v. Dist. of Columbia, No. 2020-2944 (D.D.C. July 16, 2021).published
    “The Pickering 35 balance understandably favors the plaintiff when the test is based solely on the allegations in the complaint.” Hafley v. Lohman, 90 F.3d 264, 267 (8th Cir. 1996).
  • Whisman ex rel. Whisman v. Rinehart, 119 F.3d 1303 (8th Cir. 1997).published
  • United States ex rel. Kinney v. Stoltz, 327 F.3d 671 (8th Cir. 2003).published
Retrieving the full opinion text from the archive…
Evelyn Susan HAFLEY, Appellee,
v.
Janette LOHMAN, Director, Department of Revenue, State of Missouri; James Callis, Director, Department of Revenue, State of Missouri; Dean Powell, Assistant Administrator, Field Services Bureau, Department of Revenue, State of Missouri; Rich Lamb, Administrator, Field Services Bureau, Department of Revenue, State of Missouri; Raymond Hune, Director, Division of Motor Vehicle, Department of Revenue, State of Missouri; William Siedhoff, Formerly, Director, Division of Motor Vehicle and Driver’s Licensing, Department of Revenue, State of Missouri; Mary Ann Reuter, Formerly, Field Services Manager, Department of Revenue, State of Missouri; Lynn Bexten, Personnel Officer, Department of Revenue, State of Missouri; Zoe Lyle, Deputy Division Director, Motor Vehicle and Driver’s Licensing, Department of Revenue, State of Missouri; Ellie James, Formerly, Administrator, Field Services Bureau, Department of Revenue, State of Missouri; William H. Melcher, Formerly, Deputy Director and Acting Director, Department of Revenue, State of Missouri, Appellant
95-3405.
Court of Appeals for the Eighth Circuit.
Jul 19, 1996.
Published opinion
90 F.3d 264
1996 WL 403024
James R. McAdams, Jefferson City, MO, argued (John R. Munich and James R. Mc-Adams, on brief), for appellant., Lloyd J. Vasquez, St. Charles, MO, argued (L.G. Copeland, on brief), for appellee.
Bowman, Gibson, John, McMILLIAN.
Cited by 1 opinion  |  Published
Pinpoint authority: bottom 39%
BOWMAN, Circuit Judge.

The sole issue in this case is whether the eleven defendants, current and former employees of the state of Missouri, are entitled to qualified immunity. The District Court [1] denied the defendants’ motion to dismiss the complaint on the basis of qualified immunity, and we affirm.

Evelyn Susan Hafley is an administrative coordinator with the field services bureau of[*266] the Missouri Department of Revenue. In her complaint, Hafley alleges that defendant Ellie James instructed her “to hide a file containing information about the Department of Revenue’s University City Fee Office” and “to say nothing about said file.” Complaint at ¶ 9. Hafley alleges that she refused to do as instructed because she believed that hiding the file would have been illegal. She then reported the incident to defendant Dean Powell, who allegedly told her to follow James’s instructions and “stay out of it.” Complaint at ¶ 11. Hafley also alleges that she reported the instructions she had received from James and Powell to defendants Rich Lamb and Mary Ann Reuter. She alleges that the defendants thereafter retaliated against her in a variety of ways for her attempts to report the actions of James and Powell and for her refusal to hide the file, which later allegedly was seized in a criminal investigation of the University City fee office. She alleges that the defendants took these actions “to punish Plaintiff for refusing to commit an illegal act and exercising her First Amendment rights,” specifically the “right to exercise freedom of speech.” Complaint at ¶¶ 16-17. The defendants have not filed an answer to the complaint. Instead, the defendants moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

The District Court denied the motion to dismiss and the subsequent motion to reconsider “because there is insufficient evidence for the Court to weigh the applicability of defendants’ assertion of qualified immuni-ty_ Plaintiff is required to put defendants on notice by the filing of her complaint. This she has done.” Hafley v. Lohman, No. 95-4078-CV-C-2, order at 1 (W.D.Mo. Sept. 7, 1995) (denying motion to reconsider order denying motion to dismiss) (citations omitted).

“The denial of a defendant’s motion to dismiss on the grounds of qualified immunity, although interlocutory in nature, is a final appealable order within the meaning of 28 U.S.C. § 1291.” Weaver v. Clarke, 45 F.3d 1253, 1255 (8th Cir.1995). We review de novo a district court’s order denying a motion to dismiss, viewing the allegations in the complaint in the light most favorable to the plaintiff. Id. We note that “qualified immunity is an affirmative defense,” and “it will be upheld on a 12(b)(6) motion only when the immunity is established on the face of the complaint.” Id. The defendants in this case are entitled to qualified immunity unless Haf-ley has alleged the violation of a constitutional right that was clearly established at the time of the alleged violation. Id. Like the District Court, we must accept the allegations of the complaint as true when considering a Rule 12(b)(6) motion to dismiss. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984). “[Dismissal is inappropriate ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” McCormack v. Citibank, N.A., 979 F.2d 643, 646 (8th Cir.1992) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)).

The defendants first contend that Hafley’s complaint does not meet the heightened pleading standard that this Court has applied to “[cjomplaints seeking damages against government officials,” Edgington v. Missouri Dep’t of Corrections, 52 F.3d 777, 779 (8th Cir.1995). They also contend that the Complaint fails to set forth specific acts committed by defendants Lohman, Callis, Hune, Siedhoff, Bexten, Lyle, and Melcher. Those issues, however, are not properly before us. While an interlocutory order that decides the issue of qualified immunity may be final and appealable under § 1291, a denial of a motion to dismiss for failure to state a claim is not a final appealable order. See United States v. Brakke, 813 F.2d 912, 913 (8th Cir.1987) (per curiam); see also Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275-76, 108 S.Ct. 1133, 1136, 99 L.Ed.2d 296 (1988) (noting that denial of motion to dismiss is not appealable unless it fits within “a ‘small class’ of decisions that are appealable ... even though they do not terminate the underlying litigation”). Thus we lack jurisdiction to consider the defendants’ arguments regarding the sufficiency of the allegations in the complaint.

[*267] The defendants also contend that Halley's complaint fails to allege that the defendants violated a constitutional right that was clearly established at the time of the alleged violation, thus showing that the defendants are entitled to qualified immunity on the face of the complaint. We disagree. We reiterate that we must accept the allegations in the complaint as true and construe all reasonable inferences therefrom in favor of Hafley at this early stage in the litigation. See McCormack, 979 F.2d at 646. In essence, Hafley alleges that she has been retaliated against for speaking to her supervisors about a matter of public concern, specifically an attempt to hide government records from an impending criminal investigation of the handling of public funds by the Missouri Department of Revenue at its University City fee office. At the time, it was clearly established that such retaliation could have violated the First Amendment. See, e.g., Pickering v. Board of Educ., 391 U.S. 563, 574, 88 S.Ct. 1731, 1737, 20 L.Ed.2d 811 (1968) (“statements by public officials on matters of public concern must be accorded First Amendment protection”); Kincade v. City of Blue Springs, 64 F.3d 389, 396 (8th Cir.1995) (‘We generally have held that speech about the use of public funds touches upon a matter of public concern.”), cert. denied, — U.S. -, 116 S.Ct. 1565, 134 L.Ed.2d 665 (1996). In Dunn v. Carroll, 40 F.3d 287 (8th Cir.1994), this Court stated that

[a] disciplinary action against a public employee violates his First Amendment rights if: (1) the conduct for which he was punished can be “fairly characterized as constituting speech on a matter of public concern,” Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983); and (2) the interest of the employee in commenting on the matter of public concern outweighs the public employer’s interest in promoting its efficiency by prohibiting the conduct. Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968).

Id. at 291. Whether the protected speech is actually communicated to the public is irrelevant. See Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 415-16, 99 S.Ct. 693, 696-97, 58 L.Ed.2d 619 (1979) (“Neither the [First] Amendment itself nor our decisions indicate that this freedom is lost to the public employee who arranges to communicate privately with his employer rather than to spread his views before the public.”); Cox v. Dardanelle Pub. Sch. Dist, 790 F.2d 668, 674 (8th Cir.1986). The defendants’ argument that the allegations in the complaint fail to state a claim under Pickering is specious. Under Pickering, courts must balance “the interest of the [public employee] as a citizen, in commenting upon matters of public concern, and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568, 88 S.Ct. at 1734. Construing the allegations and all reasonable inferences therefrom in favor of Hafley, it is clear that her interest in exposing an attempt to obstruct a criminal investigation into the handling of public funds outweighs the state’s interest in the efficiency of its public services. The Pickering balance understandably favors the plaintiff when the test is based solely on the allegations in the complaint.

The defendants argue that the allegations in the complaint can be construed differently, that is, in a way such that Hailey’s speech appears to be related only to internal department policies. Such an argument is irrelevant, as we must construe the complaint in the light most favorable to Hafley. The defendants also asserted at oral argument that the allegations are baseless. Hafley may indeed fail to prove her allegations at trial, but that is irrelevant to the consideration of the defendants’ Rule 12(b)(6) motion to dismiss. Moreover, the defendants ultimately may establish that they are entitled to qualified immunity, but we agree with the District Court that they have not done so yet.

For the reasons stated, the order of the District Court denying the defendants’ motion to dismiss on the basis of qualified immunity is affirmed.

1

. The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri.