Calvit v. Minneapolis Public Schools

• Decision Date: 18 August 1997
• Docket Number: No. 96-4181,96-4181
• Citation: 122 F.3d 1112
• Parties: 120 Ed. Law Rep. 952, 13 IER Cases 276 Steven CALVIT, Plaintiff/Appellant, v. MINNEAPOLIS PUBLIC SCHOOLS; Four Winds School; Donna Grant, Defendants/Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1112

122 F.3d 1112

120 Ed. Law Rep. 952, 13 IER Cases 276

Steven CALVIT, Plaintiff/Appellant, v. MINNEAPOLIS PUBLIC SCHOOLS; Four Winds School; Donna

Grant, Defendants/Appellees.

No. 96-4181.

United States Court of Appeals,

Eighth Circuit.

Submitted June 12, 1997.

Decided Aug. 18, 1997.

Stephen W. Cooper, argued, Minneapolis, MN (Teresa K. Patton, on the brief), for Plaintiff/Appellant.

Eric John Magnuson, argued, Minneapolis, MN (Glen M. Goldman, on the brief), for Defendants/Appellees.

Before MURPHY, HEANEY, and NORRIS, ¹ Circuit Judges.

MURPHY, Circuit Judge.

Stephen Calvit sued the Minneapolis Public Schools, the Four Winds School, and Donna Grant (collectively MPS) for retaliating against him for criticizing the school's policy for reporting child abuse. He alleged that MPS 1) violated his free speech rights under the United States and Minnesota constitutions; 2) violated the Minnesota whistleblower statute; 3) defamed him; and 4) illegally retaliated against him for reporting child abuse. The district court granted summary judgment in favor of MPS on the free speech and whistleblower claims and dismissed the other state claims without prejudice. Calvit appeals, and we reverse.

I.

Calvit was a social worker at the Four Winds school, which is a magnet school emphasizing Native American culture. Under state law he was required to report child abuse within 24 hours of discovery. See Minn.Stat. Ann. § 626.556. Four Winds had developed its own policy on reporting child abuse, however, which allowed a report only if all members of a child abuse team determined one was necessary. According to Calvit, the policy violated state law and was designed specifically to limit reports involving Native American children. Calvit claims he often discussed his concerns about the school policy with his supervisors while he worked at Four Winds and also with a fellow social worker, Harold Lee. MPS claims on the other hand that he did not report his concerns over the policy until after his employment at the school ended.

Under his contract, Calvit would continue to work for the school district beyond the end of the school year unless the district terminated him before June 1. In May 1993, the school district decided to terminate his employment and sent a letter on May 12 informing him of its decision.

On May 12, Calvit reported to child protective services that he suspected that R.B., a student at Four Winds, might have been a victim of sexual abuse. Later that month, child protective services expressed its concern that Calvit's report had not been timely. Calvit claimed he followed school procedure and that initially he did not have enough information to conclude the child had been abused but that he reported it when he did. On June 3, Kay Bonczek, an administrator in the school district's human resources department, wrote Donna Grant, the principal of Four Winds, instructing her to investigate the report about R.B. and informing her that "[w]e will hold on Steve Calvit's reappointment until the investigation has been completed and the situation is reviewed." A memorandum written in June indicated that Calvit called Bonczek on June 7 to sign a contract for the next school year but that he was told that the investigation had not been completed so his return to Four Winds would be delayed. Calvit's last day at Four Winds was June 14. On June 17, Grant informed Bonczek that she had investigated the matter, and determined that, among other things, when Calvit "interviewed [R.B.], he found no cause to believe abuse had occurred."

Four Winds had reviewed Calvit's general job performance on June 1 and rated him good or superior in every category. At the time Grant informed Bonczek about her investigation regarding the R.B. report, she described Calvit as "extremely conscientious" and said the school was "pleased with the work he had done ... It is my request that he be reappointed as soon as possible." Later, on June 24, Grant wrote Bonczek that Calvit had done an excellent job and asked her to reassign him to Four Winds.

The first time Calvit made his views known to school district personnel outside of Four Winds was on June 24, 1993. On that day he met with the school district's supervisor of social workers, a special education administrator, and a human resources administrator and discussed Four Winds' child abuse policy. At this meeting Calvit stated that he had to get approval from Four Winds administrators before reporting child abuse and that Four Winds employees had tried to convince him not to report cases of suspected abuse. He claimed that he had been told to call a child's parents when the police came to take a child to a facility. He believed this was not proper. Calvit also indicated that there was a separate standard for reporting cases involving Native American children.

The school district rehired Calvit on August 12, 1993 and assigned him to the Morris Park Elementary School. One month later Calvit received a notice of deficiency from the human resources department for his action in the case involving R.B. The notice stated that he had not reported a suspected case of child abuse in a timely manner and that his "conduct [was] unbecoming a teacher." The notice also stated that if he did not properly report child abuse his contract would be terminated. Despite the school district's criticism of Calvit's behavior, in 1994 the Minnesota Board of Social Work determined that Calvit was not at fault in his report regarding R.B. because there was no reason to believe abuse had occurred.

The school district's human resources department wrote to Calvit in November 1993 that "[t]he district has reassigned you to a full time social worker position at Morris Park to forestall any further complaint of Whistle Blowing." While at Morris Park he was assigned to be a transportation coordinator, in addition to his social work duties. The evidence is mixed on the quality of the assignment to Morris Park. The former principal of the school described its condition in 1993 as "stagnant, dysfunctional, and decaying [and] dirty, dark, devoid of any indications of student work or learning and very unhappy." On the other hand, Calvit's union representative urged him to take the job and Calvit said that he liked the first principal he worked with there, Harold Benson.

Calvit experienced problems at Morris Park. He testified that he informed the second principal, Nina Malm, about the disciplinary letter related to the R.B. case and his disagreement with its findings and conclusions. He also told a school administrator that he would report cases of child abuse if appropriate, even if he were told not to by the principal, and he testified that he told Malm that she was not following the standard child abuse reporting procedures. Calvit claims that other employees at Morris Park treated him rudely and the administrators did nothing to stop this. He also testified that Malm told him not to report certain child abuse cases. Calvit experienced health problems and left the school midway through the year.

Calvit sued MPS in state court for 1) violating his free speech rights under the first and fourteenth amendments to the United States Constitution and Article I, § 3 of the Minnesota Constitution; 2) retaliating against him in violation of the Minnesota whistleblower statute; 3) defamation; and 4) retaliation for reporting suspected child abuse. The case was then removed to federal court.

The district court granted summary judgment in favor of MPS on the free speech and whistleblower claims and dismissed the other state claims without prejudice. The court reasoned that Calvit was not an employee at the time of his June 24 criticism of the child abuse policy and concluded that he could not show that he had been disciplined for his speech or that he was covered by the Minnesota whistleblower statute.

II.

On appeal Calvit argues that he had engaged in protected speech both before and after the school decided not to rehire him. He claims the decision not to rehire him, the assignment to an inferior school, and his constructive discharge were in response to his exercise of his constitutional rights. The whistleblower claim should not have been rejected because he reported illegal conduct when he worked both at Four Winds and at Morris Park and also on June 24, when he remained an employee or was covered as a former employee.

MPS contends that Calvit did not make any protected speech before the school district decided not to rehire him, that he was not an employee when he made his comments on June 24, and that no adverse action followed that speech. The school district in fact provided a benefit to Calvit by rehiring him. The court correctly ruled that the whistleblower claim was invalid because Calvit was not an employee at the time he reported Four Winds's child abuse policy, and even if he had been, he cannot point to any adverse action by the school because of those comments.

We review the grant of summary judgment de novo. Ringier Am., Inc. v. Land O Lakes, Inc., 106 F.3d 825, 827 (8th Cir.1997). All evidence and reasonable inferences from the evidence are to be viewed in the light most favorable to the nonmoving party. Enterprise Bank v. Magna Bank of Mo., 92 F.3d 743, 747 (8th Cir.1996). Summary judgment is appropriate only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Summary judgment should not be granted if on the evidence a reasonable jury could find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986).

A.

In his claim brought under the first amendment, Calvit had the burden to demonstrate that he engaged in protected activity. ² Hamer v. Brown, 831 F.2d 1398, 1401 (8th Cir.1987). To be protected, the speech must be on a matter of public concern, and the...