Wilson v. Miller et al
Filing
71
MEMORANDUM OPINION AND ORDER granting in part 55 Defendants' Motion for Summary Judgment; denying as moot 38 Plaintiff's Motion to Alter/Amend/Supplement Pleadings (Written Opinion). Signed by Judge Ann D. Montgomery on 01/20/2015. (TLU)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Cynthia Wilson,
Plaintiff,
MEMORANDUM OPINION
AND ORDER
Civil No. 13-2286 ADM/SER
v.
Jayne Miller (individually and in her official
capacity) and Minneapolis Park and Recreation
Board,
Defendants.
______________________________________________________________________________
Lisa M. Lamm Bachman, Esq., Foley & Mansfield, PLLP, Minneapolis, MN, on behalf of
Plaintiff.
Ann E. Walther, Esq., Rice, Michels & Walther LLP, Minneapolis, MN, on behalf of
Defendants.
_____________________________________________________________________________
I. INTRODUCTION
On November 6, 2014, the undersigned United States District Judge heard oral argument
on Defendants’ Motion for Summary Judgment [Docket No. 55] and Plaintiff’s Motion for
Leave to Amend Complaint and to Amend Scheduling Order [Docket No. 38]. Plaintiff Cynthia
Wilson (“Wilson”) alleges Defendants Jayne Miller (“Miller”) and the Minneapolis Park and
Recreation Board (“MPRB”) retaliated against her for exercising her First Amendment rights.
For the reasons set forth below, Defendants’ summary judgment motion is granted in part
and Plaintiff’s motion to amend the Complaint and Scheduling Order is denied as moot.
II. BACKGROUND
The MPRB is a semi-autonomous department of the City of Minneapolis headed by a
superintendent who reports to an elected board of commissioners. Defs.’ Mem. Supp. Summ. J.
[Docket No. 57] 2. Since 2010, Miller has held the position of MPRB superintendent. Id.
Wilson, an African American, has been employed by the MPRB in various capacities since 1989.
Am. Compl. [Docket No. 24] ¶ 6.
Wilson alleges that Miller and the MPRB retaliated against her for engaging in activity
protected by the First Amendment. She contends that her comments in an interview for a
newspaper article in September 2012 and her questions during an MPRB open budget meeting in
December 2012 motivated Defendants to take retaliatory action against her. The retaliatory acts
included announcing an open position on a limited basis internally, negative comments on her
performance review, failing to hire her for a new position, two suspensions without pay, a
Performance Improvement Plan, and a written reprimand. Wilson also alleges that Defendants
discriminated against her in violation of the Minnesota Human Rights Act.
A. Wilson’s Discipline Before the Protected Speech
In January 2011, before Wilson engaged in the protected speech, the MPRB attempted to
terminate Wilson for substandard performance for improperly supervising an employee who had
systematically stolen money from the MPRB. Walther Aff. [Docket No. 58] Ex. G at 10.
Wilson challenged her termination with the Civil Service Commission (“Commission”). Id. 1.
The Commission determined that termination was excessively harsh as Wilson’s previous
performance evaluations had been good to excellent. Id. 20. She was reinstated to her position
after a 30-day suspension. Id. When Wilson returned from her suspension, she refused to
comply with a MPRB policy requiring employees to pay for their personal calls, and received a
one-day suspension for insubordination. Walther Aff. Ex. Q. During this time period, the
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MPRB also extended Wilson’s standard probationary period because she needed improvement in
four of seven areas reviewed. Walther Aff. Ex. S. The two main bases for this extension were
the manner in which she addressed persons, i.e. her tendency to be rude and disrespectful, and
her refusal to follow the MPRB’s policies. Id.
B. The Environmental Analysis Report
In October 2011, Miller hired an independent consulting firm, Dr. Betty Webb
Consulting, Inc., to analyze the MPRB and address its organizational challenges and
opportunities. Am. Compl. ¶ 24. The firm provided a report, the Environmental Analysis
Report, to MPRB management in January 2012 based on interviews with over 100 individuals.
Walther Aff. Ex. OO at 6. The report stated:
There is widespread discontent and complaints about the unfavorable treatment of
African American employees in particular and to some extent other employees of
color. In our interviews with employees of color, it does not take long before the
issues of race surface. And, when discussing these issues, people express an
unwillingness to bring these issues up with their superiors for fear of punishment or
retaliation. Many express fear of speaking up or of questioning practices. They
assume that not only will it not be responded to but that they will also likely be
punished – a climate of fear.
Id. 9.
C. Wilson’s Newspaper Interview and Alleged Retaliation
On September 13, 2012, the Minnesota Spokesman-Recorder published an article
highlighting complaints of racial discrimination within the MPRB. Am. Compl. ¶ 29. The
article quoted Wilson, who discussed her concerns about race discrimination. Id. Miller was
also quoted in the article and was therefore likely aware of Wilson’s participation in the article.
Id.
During September 2012, the MPRB announced an opening for the position of Deputy
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Chief Superintendent externally, and on a limited basis internally. Id. ¶ 30. Wilson was
interested in the position but did not learn of it until after the position had closed. Id. She
alleges that the MPRB’s failure to more prominently announce the position was retaliation for
her comments in the article. Id. ¶ 51.
D. Wilson’s Speech at an Open Budget Meeting and Alleged Retaliation
1. The MPRB Open Budget Meeting
On December 18, 2012, Wilson attended an open budget meeting during which MPRB
employees were encouraged to ask questions and make comments regarding the budget process.
Id. ¶ 31. At the meeting, Wilson asked Miller whether public funds were allocated to address the
problem areas identified in the Environmental Analysis Report by Dr. Betty Webb Consulting,
Inc. Id. According to Wilson, Miller became visibly angry and persuaded Wilson to meet with
her privately to discuss the issues. Id.
Wilson alleges Miller’s frustration with Wilson’s comments during the open budget
meeting impacted her annual performance review which occurred on December 28, 2012, ten
days after the open budget meeting. Walther Aff. Ex. U. Heidi Pope, Wilson’s manager, was
responsible for Wilson’s performance review. Bachman Aff., October 16, 2014, [Docket No.
64] (“Second Bachman Aff.”) Ex. 18, Ex. 20. However, as part of the standard annual review
procedure, Miller reviewed and commented on the drafts written by Pope before the employee
received them. Id.
The evaluation stated that Wilson “needs improvement” on her communication skills,
citing as an example Wilson “asking when [the MPRB] will begin working on the issues written
about in the Environmental Analysis Report” during a meeting. Second Bachman Aff. Ex. 18 at
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3. The evaluation also states that Wilson “needs improvement” on her interpersonal skills,
referencing the manner in which Wilson asked questions during meetings, and the content of
such questions as examples of inadequate interpersonal skills. Id. 5. Miller’s edits to the review
included negative comments of Wilson’s handling of a situation at Van Cleve Park. Id. Wilson
received a rating of “meets expectations” in all other areas as well as an overall rating of “meets
expectations.” Id.
On December 30, 2012, Wilson formally complained to the MPRB’s Human Resources
Department, raising her concerns that Miller retaliated against her in her annual evaluation for
her questions during the open budget meeting. Walther Aff. Ex. V. After Wilson’s complaint to
Human Resources, her performance evaluation was amended to rate her as “needs improvement”
in the areas of Decision Making, Problem Solving, and Interpersonal Skills, but not
Communication. Walther Aff. Ex. X. She maintained an overall rating of “meet expectations.”
Id. Performance evaluations become available to internal hiring managers during the hiring
process for open positions. Second Bachman Aff. Ex. 4 at 150-151.
2. Alleged Retaliation
a. Failure to Receive Promotion
In March 2013, Wilson applied for, was interviewed, and was a finalist for the position of
Director of Recreation Centers and Programs. Walther Aff. Ex. NN. Ultimately, she was not
selected for the position. Id. It was the hiring manager’s decision to hire someone else for the
opening. Second Bachman Aff. Ex. 7. He did, however, discuss the candidates with Miller after
his interviews with the candidates. Id.
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b. Suspensions, Performance Improvement Plan, and Written Reprimand
In April 2013, Pope instructed Wilson to discipline two of Wilson’s subordinates for their
work-related conduct. Walther Aff. Ex. Z. Wilson issued verbal warnings to both employees,
but Pope subsequently informed her that she needed to issue written warnings to be consistent
with the discipline issued to other MPRB employees for similar offenses. Walther Aff. Ex. BB.
Wilson completed the paperwork for the written warnings and met with each employee to deliver
the revised discipline. Second Bachman Aff. Exs. 24, 27. However, she refused to sign the
written warnings to the first employee when Pope directed her to do so, insisting it would
“falsify” the documents because they did not accurately reflect her view of the appropriate
disciplinary measure. Walther Aff. Ex. FF.
As a result, Wilson received a ten-day suspension without pay for insubordination.
Bachman Aff. Ex. 28. On her return to work, she refused to sign the second employee’s warning
and received another unpaid suspension, this time for 20 days. Walther Aff. Ex. GG. Miller
signed off on both of Wilson’s suspensions. Walther Aff. Exs. CC, GG. When Wilson returned
to work in July 2013, Wilson’s manager placed her on a performance improvement plan due to
her two suspensions. Second Bachman Aff. Ex. 5 at 103. Miller was aware of Wilson’s
performance improvement plan. Id. 145. While on the performance improvement plan, Wilson
received a written reprimand for failing to immediately report a possible violation of MPRB’s
harassment policy, as required by that policy. Walther Aff. Ex. KK.
E. Events Subsequent to the Filing of the Amended Complaint
Wilson now seeks leave to amend the complaint for a second time due to events that have
occurred since she filed the Amended Complaint on May 12, 2014. Specifically, Wilson did not
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receive a position for which she applied and was permanently demoted following an incident at a
MPRB training meeting. Bachman Aff., September 16, 2014, [Docket No. 41] (“First Bachman
Aff.”) Ex. A; Wilson Aff. [Docket No. 42] ¶ 6, Ex. B. Wilson has appealed the disciplinary
measure with the Civil Service Commission, but the Commission has not yet issued a decision
on the matter. Wilson Aff. ¶ 6, Ex. B. Wilson seeks to add a Minnesota Human Rights Act
reprisal claim to the complaint and asks for additional time to conduct discovery on the recent
events.
III. DISCUSSION
A. Standard for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall
be rendered if there exists no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.
The United States Supreme Court, in construing Federal Rule 56(c), stated in Celotex
Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986):
In our view, the plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear the burden of proof
at trial.
On a motion for summary judgment, the court views the evidence in the light most
favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995).
However, the nonmoving party may not “rest on mere allegations or denials, but must
demonstrate on the record the existence of specific facts which create a genuine issue for trial.”
Krenik v. Cnty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
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If the nonmoving party presents evidence sufficient to permit a reasonable jury to return a
verdict in its favor, summary judgment is inappropriate. Id. However, “the mere existence of
some alleged factual dispute between the parties is not sufficient by itself to deny summary
judgment. . . . Instead, ‘the dispute must be outcome determinative under prevailing law.’” Get
Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992) (citation omitted). Moreover, a
plaintiff facing a summary judgment motion cannot “get to a jury without any significant
probative evidence tending to support the complaint.” Rath v. Selection Research, Inc., 978 F.2d
1087, 1091 (8th Cir. 1992), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
In addition, a defendant’s motion for “summary judgment need not be denied merely to satisfy a
litigant's speculative hope of finding some evidence that might tend to support a complaint.”
Krenik, 47 F.3d at 959.
B. First Amendment Retaliation Under §1983
1. The §1983 Claim Against the MPRB
Wilson asserts a § 1983 claim against the MPRB. Under the Supreme Court’s decision
in Monell v. Department of Social Services of the City of New York, municipalities may not be
held vicariously liable under §1983 for the unconstitutional actions of its employees unless the
execution of a municipality’s policy or custom is the “moving force” behind the Constitutional
violation. 436 U.S. 658, 694 (1978). To establish the existence of a municipal “custom,” a
plaintiff must show:
1.
The existence of a continuing, widespread, persistent pattern of unconstitutional
misconduct by the municipality’s employees;
2.
Deliberate indifference to or tacit authorization of such conduct by the
municipality’s policymaking officials after notice to the officials of that
misconduct; and
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3.
The plaintiff’s injury by acts pursuant to the municipality’s custom, i.e., proof that
the custom was the moving force behind the constitutional violation.
Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999).
Wilson does not attempt in her opposition brief to articulate a custom or practice at the
MPRB that would expose the MPRB to § 1983 liability, ignoring this requirement under Monell.
She does allege in her Amended Complaint that Defendants have a “policy, practice, usage and
custom” of establishing a work environment that retaliates against employees for “speaking up.”
Am. Compl. ¶ 48. However, the only evidence offered in to support this allegation is the
Environmental Analysis Report by Dr. Betty Webb Consulting, Inc. The report concluded:
In our interviews with employees of color, it does not take long before the issues of
race surface. And, when discussing these issues, people express an unwillingness
to bring these issues up with their superiors for fear of punishment or retaliation.
Many express fear of speaking up or of questioning practices. They assume that not
only will it not be responded to but that they will also likely be punished – a climate
of fear.
Walther Aff. Ex. OO at 9.
While the Environmental Analysis Report reflects employee fears of punishment for
speaking up, it does not demonstrate a correlation between employees who “spoke up” and
instances of retaliation by the MPRB. Employees may “assume” they will be punished, but
Wilson has provided no evidence of employees who have been retaliated against for exercising
their First Amendment rights. Since Wilson has not produced evidence of a custom of
retaliation, the § 1983 claim against the MPRB is dismissed.
2. The §1983 Claim Against Miller in Her Official Capacity
In addition to naming the MPRB as a defendant, Wilson has sued Miller in her official
capacity. Official capacity suits “generally represent only another way of pleading an action
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against an entity of which the officer is an agent.” Monell at 690 n.55. “[T]he real party in
interest in an official capacity suit is the governmental entity and not the named official.” Hafer
v. Melo, 502 U.S. 21, 25 (1991). An official capacity suit requires proof that a policy or custom
of the governmental entity was the moving force behind the violation of federal law. Kentucky
v. Graham, 473 U.S. 159, 166 (1985).
As discussed above, Wilson has not established the policy or custom at the MPRB that
underlies her retaliation claim. Therefore, the § 1983 claim against Miller in her official
capacity, like the claim against the MPRB, is dismissed.
3. The § 1983 Claim Against Miller in Her Personal Capacity
Wilson also asserts a § 1983 claim against Miller in her personal capacity. To establish a
prima facie case of First Amendment retaliation against one’s employer, a plaintiff must show
that (1) she engaged in activity protected by the First Amendment; (2) the defendant took an
adverse employment action against her; and (3) the protected activity was a substantial or
motivating factor in the defendant’s decision to take adverse employment action. Davison v.
City of Minneapolis, 490 F.3d 648, 654-55 (8th Cir. 2007), citing Mt. Healthy City School Dist.
Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). See also, Wagner v. Jones, 664 F.3d 259, 270
(8th Cir. 2011); Davenport v. Univ. of Ark. Bd. of Tr., 553 F.3d 1110, 1113 (8th Cir. 2009).
Miller concedes, for purposes of this motion, that Wilson’s newspaper interview and her
questions during the open budget meeting are protected under the First Amendment. Miller
does, however, dispute that she took adverse employment action against Wilson. To constitute
an adverse employment action, the action must have an adverse impact on the employee and
“must effectuate a material change in the terms and conditions of employment.” Duffy v.
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McPhillips, 276 F.3d 988, 992 (8th Cir. 2002).
Wilson alleges that the performance review that evaluated her as “needing improvement”
in some areas was retaliation for speaking at the open budget meeting because the evaluation
references her comments about the Environmental Analysis Report. Second Bachman Aff. Ex.
18 at 3. By itself, a poor performance rating does not constitute an adverse employment action
because it has no tangible effect upon the recipient’s employment. Turner v. Gonzales, 421 F.3d
688, 696 (8th Cir. 2005). “An unfavorable [performance] evaluation is actionable only where
the employer subsequently uses the evaluation as a basis to detrimentally alter the terms and
conditions of the recipient’s employment.” Id. Wilson has failed to produce evidence that the
negative comments on her evaluation materially changed the terms and conditions of her
employment. Although the performance review is available to MPRB managers during the
hiring process, Wilson’s own deposition testimony states that she was not hired because she was
“militant” and “arrogant.” Walther Aff. Ex. B1 at 249.
Wilson further alleges Miller took the following adverse employment actions against her
as a result of Wilson’s exercise of protected speech. In addition to the poor performance review,
“discretely” posting an MPRB job opening, declining to hire Wilson for the position of Director
of Recreation Centers and Programs, and causing Wilson to receive two suspensions, a written
reprimand, and a performance improvement plan. Miller disputes that Wilson’s protected speech
played a substantial or motivating role in these other employment actions. Indeed, Wilson
herself has testified that these actions were taken for other reasons. In her sworn deposition,
Wilson testified that:
•
The “hidden” posting for the Deputy Superintendent position was retaliation for
her reinstatement and because Miller did not want her to advance in the
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organization. Walther Aff. Ex. B1 at 212-213; 215.
•
Wilson was not selected for the position of Director of Recreation Centers and
Programs because she was “militant” and “arrogant.” Id. 249.
•
The ten-day suspension was retaliation for her reinstatement, for not being a team
player, and for being militant. Id. 259-260.
•
The twenty-day suspension was retaliation for her reinstatement and to show her
who was in charge. Id. 263-264.
•
Her placement on a performance improvement plan was retaliation for just having
been disciplined, to put the reins on her, and to show her that if she did not act or
speak the way they wanted, she would be disciplined. Id. 267.
•
The written reprimand was retaliation by the human resources director for
Wilson’s reinstatement and because Wilson had filed a complaint against the
director. Id. 269, 272.
Wilson’s argument is that, although she does not attribute these employment actions to
retaliation for her protected speech in her deposition testimony, the Court should infer that
retaliation for her involvement in the newspaper article and at the budgetary meeting was the
actual motivation. Wilson contends that Miller’s actions toward Wilson are illegal, and that the
terms Wilson used to describe the motivation behind Miller’s actions are irrelevant. She offers
no case law to support this argument.
However, where Wilson herself does not believe these events were retaliation for the
claim at hand – retaliation for protected activity under the First Amendment – the Court cannot
infer that they were. See, Rothmeier v. Inv. Advisors, Inc., 85 F.3d 1328, 1337 (8th Cir. 1996)
(holding that where, in an age discrimination case, a plaintiff asserted that he was terminated for
investigating alleged SEC violations by his employer, summary judgment was appropriate
because “[t]his acknowledgment alone would completely refute [plaintiff’s] claim of age
discrimination.”). Wilson’s own testimony undermines her allegations that retaliation for her
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protected activity motivated the MPRB to take these steps. Retaliation for the Commission’s
2011 decision to reinstate her is not the retaliation pled or covered under this claim. As Wilson
cannot demonstrate that her protected speech was a “substantial” or “motivating” factor in these
employment decisions, Miller is entitled to summary judgment on this claim.
C. State Law Claims
With the dismissal of Wilson’s § 1983 claim and her voluntarily withdrawal of her Equal
Protection claim,1 the only claims remaining, are the two Minnesota Human Rights Act claims,
which arise under state law. Because there are no remaining claims over which the Court has
original jurisdiction, the Court declines to exercise supplemental jurisdiction over the pendent
state-law claims. See Johnson v. City of Shorewood, 360 F.3d 810, 819 (8th Cir. 2004) (“A
federal district court has the discretionary power to decline jurisdiction where it has ‘dismissed
all claims over which it has original jurisdiction.’” quoting 28 U.S.C. § 1367(c)(3)).
Accordingly, Counts III and IV are therefore dismissed without prejudice.
D. Wilson’s Motion for Leave to Amend the Complaint and Amend the Scheduling Order
Wilson seeks leave to amend the complaint to add an additional claim under the
Minnesota Human Rights Act based on ongoing events subsequent to filing the Amended
Complaint on May 12, 2014. Because this Court declines to exert supplemental jurisdiction over
the state claims, the motion to amend the complaint to include an additional state law claim and
allow discovery based on these recent events is denied as moot.
1
Wilson stated in her opposition brief that she was voluntarily withdrawing her Equal
Protection Claim. See Pl.’s Opp’n to Summ. J. [Docket No. 63] 2.
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IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS
HEREBY ORDERED that:
1.
Defendants’ Motion for Summary Judgment [Docket No. 55] is GRANTED IN
PART.
A.
Summary judgment is granted as to Count I of the Amended Complaint
[Docket No. 24], and Count I is DISMISSED WITH PREJUDICE.
B.
Plaintiff has voluntarily withdrawn Count II, and Count II is DISMISSED
WITHOUT PREJUDICE.
C.
The Court declines to exercise supplemental jurisdiction over Counts III
and IV, and Counts III and IV are DISMISSED WITHOUT
PREJUDICE.
2.
Plaintiff’s Motion for Leave to Amend the Complaint and to Amend the
Scheduling Order [Docket No. 38] is DENIED as moot.
LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:
s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: January 20, 2015.
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