490 F.3d 648 (8th Cir. 2007), 06-2368, Davison v. City of Minneapolis, Minnesota

Docket Nº:06-2368.
Citation:490 F.3d 648
Party Name:Kathy DAVISON, Appellant, v. CITY OF MINNEAPOLIS, MINNESOTA; Rocco Forte, in his individual and official capacities, Appellees.
Case Date:June 20, 2007
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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490 F.3d 648 (8th Cir. 2007)

Kathy DAVISON, Appellant,


CITY OF MINNEAPOLIS, MINNESOTA; Rocco Forte, in his individual and official capacities, Appellees.

No. 06-2368.

United States Court of Appeals, Eighth Circuit.

June 20, 2007

Submitted: January 12, 2006

Appeal from the United States District Court for the District of Minnesota.

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[Copyrighted Material Omitted]

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Counsel who presented argument on behalf of the appellant was Heidi R. Burakiewicz of Washington, DC. Also appearing on appellant's brief were Thomas A. Woodley, Douglas L. Steele, Eric C. Hallstrom of Washington, DC, and James P. Michels and Ann E. Walther of Minneapolis, MN.

Counsel who presented argument on behalf of the appellee was Joel M. Fussy of Minneapolis, MN. Also appearing on appellee's brief, was Jay M. Heffern of Minneapolis, MN.

Before COLLOTON, BRIGHT, and GRUENDER, Circuit Judges.

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GRUENDER, Circuit Judge.

Kathy Davison appeals from the district court's grant of summary judgment in favor of Rocco Forte and the City of Minneapolis ("Appellees") on her claims of unlawful retaliation in violation of the First Amendment rights to freedom of speech and freedom of association. The district court found that she failed to present a prima facie case of retaliation. For the reasons discussed below, we affirm in part and reverse in part.


Viewed in the light most favorable to Kathy Davison, see Hughes v. Stottlemyre, 454 F.3d 791, 793 (8th Cir. 2006), the facts are as follows. Davison has been employed with the City of Minneapolis Fire Department ("the Fire Department") since 1986 and has held the rank of Captain since 1999. She has been a member of the International Association of Fire Fighters Local 82 ("the Union") throughout her employment, during which Rocco Forte served as the Chief of the Fire Department. During the spring and summer of 2002, in response to budget constraints, Chief Forte proposed a plan to close Ladders 7 and 8 and purchase several quints, 1 which necessitated laying off firefighters ("the Plan"). Captain Davison actively and publicly opposed the Plan and asserts that she repeatedly was denied promotion to the position of Arson Investigator in retaliation for her outspoken and public opposition.

Captain Davison became active in opposing the Plan beginning in the fall of 2002. On October 3, 2002, Captain Davison attended a public meeting, also attended by Chief Forte, and voiced her opposition to the Plan, specifically arguing that it would result in longer response times by the Fire Department. Union President Tom Thornberg provided evidence that Chief Forte approached him after the meeting and said, "You really need to get your board under control. Kathy and [her son] were at a neighborhood meeting." Union President Thornberg went on to explain that "Chief Forte was upset with the Union and in particular Captain Davison for her position against [the Plan] .... Chief Forte was visibly upset regarding the comments Captain Davison made at the meeting when he made this statement to me."

On October 14, 2002, the Union created the Committee to Oppose the Closing of Ladders 7 and 8, and Union President Thornberg appointed Captain Davison as head of this committee. Among other projects associated with this new role, Captain Davison organized the creation and distribution of flyers criticizing the Plan. The flyers warned citizens that the Plan would "decrease the safety of our community and firefighters" and urged them to contact their local City Council member to express disapproval of the Plan. Chief Forte saw this flyer when it was brought into his office and assumed that the Union committee was responsible for its creation. News Channel 9 in Minneapolis interviewed, filmed and ran a story about Captain Davison and her flyer-distribution efforts.

The following month, Captain Davison attended another public meeting during which Chief Forte attempted to dispel accusations that response times for medical emergencies would increase as a result of the Plan by promising that he would station a Hennepin County ambulance to service the areas previously covered by Ladders

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7 and 8. Captain Davison stood before the crowd and explained that Chief Forte did not have the authority to decide where ambulances are stationed. Hennepin County Commissioner Mark Stenglein, who was present at the meeting, then stood up and confirmed that Captain Davison was correct. Also in November, Captain Davison attended and spoke out against the Plan at two other public meetings, one of which Chief Forte attended. Her efforts against the Plan were also featured in the Southwest Journal, a local magazine.

At the same time, the Fire Department announced in October 2002 that it was soliciting candidates for the position of Arson Investigator. The City of Minneapolis's Human Resources Department ("Human Resources") follows a standard procedure for filling municipal positions, including those with the Fire Department.2 The procedure requires applicants first to complete a written pass/fail examination. Those who pass must then complete a scored practical examination covering hypothetical fire emergencies. The practical examination score is weighted as ninety percent of a candidate's final score, with seniority accounting for the remaining ten percent. Human Resources then ranks the candidates by their final scores and compiles them into a list of certified candidates. The names and scores of the top three certified candidates are forwarded to the Fire Department, which then interviews those three candidates. A three-member panel that consists of two fire chiefs and one human resources representative conducts the interviews.3 Chief Forte is not on the interview panel. The panel grades the answers of the candidates and then forwards both the examination and interview scores to Chief Forte, who makes the ultimate decision on which candidate to select. According to his testimony, Chief Forte simply selects the candidate with the highest interview score "100% of the time."

For the Arson Investigator position, nine candidates passed the written examination and completed the scored practical examination. Human Resources certified Captain Davison as the candidate with the highest examination score. The panel interviewed the top three candidates: first-ranked Captain Davison, second-ranked Jennifer Cornell and third-ranked Tim Thomas. Thomas received the highest interview score of 87.66, while Cornell received a score of 87 and Captain Davison received a score of 84. Chief Forte did not select Thomas, the candidate with the highest interview score, but instead promoted Cornell.4

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In February 2003, a second Arson Investigator position opened. Human Resources certified Captain Davison, Thomas and William Lindberg as the first-, second--and third-ranked candidates, respectively, based on their practical examination scores. Because the panel had just recently interviewed Captain Davison and Thomas, they only interviewed Lindberg. Lindberg scored an 82 on the interview, behind Thomas's 87.66 and Captain Davison's 84 from the prior round of interviews. This time Chief Forte did select the candidate with the highest interview score and promoted Thomas.

After the two failed promotion attempts, Captain Davison's public opposition to the Plan continued and increased. In March 2003, Captain Davison participated in a rally protesting the Plan and expressed her concerns to the City of Minneapolis Mayor R.T. Rybak, who is a member of the City Council's Executive Committee, the entity responsible for the appointment and removal of the Fire Chief. Minneapolis, Minn. Charter, ch. 3, § 4; ch. 4 § 4. That same month, Captain Davison's protest of the Plan at a City Council meeting attracted media attention. For example, the St. Paul newspaper, Pioneer Press, ran a story on the front page of its local news section that included several quotations and photographs of Captain Davison, and Minnesota Public Radio ("MPR") aired an interview with Captain Davison. Captain Davison attended two more City Council meetings on April 1 and April 14, 2003, where she similarly spoke out against the Plan.

In the spring of 2003, Ladder 8 was closed pursuant to the Plan. Following a July 14, 2003 house fire during which civilian Pearl Gallagher died, News Channel 9 aired an interview with Captain Davison. In the story, Captain Davison attributed Gallagher's death to the Plan, arguing that if Ladder 8 had not been closed the Fire Department's response time would have been shorter and the likelihood of rescuing Gallagher would have been greater. Chief Forte discussed Captain Davison's allegations with Councilman Scott Benson, his staff and "who was ever [sic] up in the office at the time."

In its August 2003 edition, the community magazine The Rake featured a cover story about the Fire Department with the headline: "The Minneapolis Fire Department, now officially 'a recipe for disaster.' " The article covered the death of Gallagher and, in particular, speculated about how the closing of Ladder 8 may have contributed to her death. Also featured in the article were pictures of Chief Forte, Mayor Rybak and Union President Thornberg and excerpts from an interview with Chief Forte. The article quoted an unnamed firefighter who stated: "Four minutes less in that atmosphere, would [Gallagher's] chances be better? Yes." Chief Forte testified that Captain Davison was the only person, to his knowledge, that characterized Gallagher's death as a tragic consequence of the Plan and called the article "disheartening." Also that summer, Chief Forte held a meeting for the laid-off firefighters that Mayor Rybak, three City Council members and Captain Davison attended. The next day, the Pioneer Press published an article about the meeting and quoted Captain Davison's claim that the Plan was...

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