772 F.3d 1126 (8th Cir. 2014), 13-3605, Skalsky v. Independent School District No. 743

Docket Nº:13-3605
Citation:772 F.3d 1126
Opinion Judge:RILEY, Chief Judge.
Party Name:Timothy Skalsky, Plaintiff - Appellant v. Independent School District No. 743, Sauk Centre Public Schools; Dan Brooks, individually and in his official capacity as Superintendent of Schools; John Messer, individually and in his official capacity as Director of Maintenance, Defendants - Appellees
Attorney:For Timothy Skalsky, Plaintiff - Appellant: Daniel Eric Warner, Warner Law Office, Blackberry Office Park, Inver Grove Heights, MN. For Independent School District No. 743, Sauk Centre Public Schools, Dan Brooks, individually and in his official capacity as Superintendent of Schools, John Messer,...
Judge Panel:Before RILEY, Chief Judge, WOLLMAN and BYE, Circuit Judges.
Case Date:November 28, 2014
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1126

772 F.3d 1126 (8th Cir. 2014)

Timothy Skalsky, Plaintiff - Appellant

v.

Independent School District No. 743, Sauk Centre Public Schools; Dan Brooks, individually and in his official capacity as Superintendent of Schools; John Messer, individually and in his official capacity as Director of Maintenance, Defendants - Appellees

No. 13-3605

United States Court of Appeals, Eighth Circuit

November 28, 2014

Submitted October 7, 2014.

Page 1127

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

For Timothy Skalsky, Plaintiff - Appellant: Daniel Eric Warner, Warner Law Office, Blackberry Office Park, Inver Grove Heights, MN.

For Independent School District No. 743, Sauk Centre Public Schools, Dan Brooks, individually and in his official capacity as Superintendent of Schools, John Messer, individually and in his official capacity as Director of Maintenance, Defendants - Appellees: Paul Edward David Darsow, Hanson Bolkcom Law Group, Ltd., Minneapolis, MN; Sally Jean Ferguson, Arthur & Chapman, Minneapolis, MN.

Before RILEY, Chief Judge, WOLLMAN and BYE, Circuit Judges.

OPINION

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RILEY, Chief Judge.

Timothy Skalsky appeals the district court's1 grant of summary judgment in favor of Dan Brooks, John Messer, and Independent School District 743, Sauk Centre Public Schools (district), on his claims under 42 U.S.C. § 1983; the Minnesota Human Rights Act (MHRA), Minn. Stat. § 363A.08; and state tort law. The district court found the record evidence did not establish any genuine dispute of material fact or sufficient evidence to show (1) Skalsky's association with his wife was a substantial or motivating factor in his alleged constructive discharge; (2) appellees' proffered reason for Skalsky's reassignment was pretext; or (3) the requisite personal motive necessary for a tortious interference with a contract claim. We affirm.2

I. BACKGROUND

The following facts are stated in the light most favorable to Skalsky. See Hughes v. Stottlemyre, 454 F.3d 791, 793 (8th Cir. 2006). In February 2009, the district hired Skalsky as a substitute custodian--later promoting him to full-time custodian. On April 19, 2011, the school board held a public meeting to receive community input about budgetary issues facing the district. At that meeting, Kirsten Skalsky, Skalsky's wife, speaking as a member of the public, suggested the school board should consider sharing a superintendent and eliminating a principal. Skalsky contends

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his wife's suggestion upset Brooks, the district superintendent, because Brooks's employment status with the district had recently been changed to " at will." Just a week before Skalsky's wife spoke, Brooks resigned his position as superintendent with the district and became an independent contractor under a contract between the district and a company providing administrative services to school districts. Either the district or the company could terminate the contract with sixty days written notice.

On April 21, the school board approved the elimination of two part-time custodial positions and a restructuring of the custodial assignments. On April 25, six days after Skalsky's wife spoke at the board meeting, Messer told Skalsky he was being reassigned to the afternoon shift (1:30 p.m. to 10:30 p.m.) and would be assigned both indoor and outdoor duties during the summer months. Messer, as director of buildings and grounds, was responsible for establishing the work schedules for the custodial staff and testified he felt Skalsky was the " best fit for the position." Messer stated he wanted " to give this a try and see how it would work."

Skalsky was very concerned about the reassignment because of his severe allergy to bee stings. Skalsky obtained a doctor's note stating Skalsky " has a history of severe allergic reaction[s] to the stings of bees and wasps." The note did not seek or recommend excusing Skalsky from performing any work duties.3 Skalsky also was concerned that the work schedule change would conflict with his baseball coaching schedule for his son's team. Skalsky told Messer he would be contacting his union representative to question the district's authority to reassign him. The union representative informed Skalsky the district had this authority and advised Skalsky to follow the union's grievance process. Skalsky never filed a grievance.

Skalsky also complains the district adversely changed his working conditions as a result of his wife's speech. Specifically, he claims (1) his desk was moved within view of a surveillance camera; (2) the time clock was advanced 25-27 minutes, which would have resulted in him clocking in at an incorrect time had he not noticed; and (3) doors for which he was responsible were left unlocked, which he claims was out of character for him. On May 23, 2011, Skalsky gave his resignation letter to Messer. Skalsky alleges appellees made his working conditions " uniquely intolerable" to force him to quit. Skalsky's resignation letter stated his last day of work would be June 3, 2011, the date his schedule was to change to the afternoon shift.

II. DISCUSSION

" We review the district court's grant of summary judgment de novo." Hughes, 454 F.3d at 796. Summary judgment is proper " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).

A. First Amendment Retaliation

Skalsky contends the district violated his First Amendment right to associate freely with his wife when the defendants changed his schedule in retaliation for her speaking at the board meeting. " To establish a prima facie case of [First Amendment] retaliation, [Skalsky] must allege and prove that: (1) [he] engaged in

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activity protected by the First Amendment; (2) the defendant took an adverse employment action against [him]; and (3) the protected conduct was a substantial or motivating factor in the defendant's decision to take the adverse employment action." 4 Davison v. City of Minneapolis, 490 F.3d 648, 654-55 (8th Cir. 2007). " If the plaintiff meets this burden, the burden shifts to the defendant to demonstrate that the same employment action would have been taken in the absence of the protected activity." Id. at 655 (citing Mt. Healthy, 429 U.S. at 287).

Appellees contest both (1) whether Skalsky's protected activity was a substantial or motivating factor in the decision to reassign him, and (2) whether Skalsky suffered an adverse employment action. " Whether protected conduct was a substantial or motivating factor in an employment decision is a question of fact." Stever v. Indep. Sch. Dist. No. 625, St. Paul, 943 F.2d 845, 851 (8th Cir. 1991). " The sufficiency of the evidence to create an issue of fact for the jury, however, is solely a question of law." Id.

Skalsky contends Brooks was upset by the content of his wife's speech because of the recent change in Brooks's employment status. Skalsky also argues Brooks displayed animosity toward him and his wife after her speech. Skalsky points to an email conversation four days after the board meeting among Brooks and the school principals in which Brooks asked if anyone else knew of " Kiersten [sic] S." Upon learning the...

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