Stever v. Independent School Dist. No. 625, St. Paul, 90-5209

• Decision Date: 01 November 1991
• Docket Number: No. 90-5209,90-5209
• Parties: 70 Ed. Law Rep. 324 Eileen STEVER, Appellant, v. INDEPENDENT SCHOOL DISTRICT NO. 625, ST. PAUL; David A. Bennett, Superintendent; Dr. James C. Sargent, individually and in his capacity as Director of Personnel and Staff Relations; and Wanda Miller, individually and in her capacity as Supervisor of School Health Program, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 845

943 F.2d 845

70 Ed. Law Rep. 324

Eileen STEVER, Appellant, v. INDEPENDENT SCHOOL DISTRICT NO. 625, ST. PAUL; David A.

Bennett, Superintendent; Dr. James C. Sargent, individually

and in his capacity as Director of Personnel and Staff

Relations; and Wanda Miller, individually and in her

capacity as Supervisor of School Health Program, Appellees.

No. 90-5209.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 13, 1990.

Decided Sept. 3, 1991.

Rehearing and Rehearing En Banc

Denied Nov. 1, 1991.

Daniel E. Warner, Eagan, Minn., for appellant.

John M. Baker, Minneapolis, Minn., argued (Thomas M. Simpkins, on brief), for appellees.

Before LAY, Chief Judge, HEANEY, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

HEANEY, Senior Circuit Judge.

Eileen Stever appeals from the district court's grant of summary judgment to the defendants in Stever's section 1983 action alleging retaliatory employment practices in violation of Stever's first amendment right to freedom of speech. We affirm in part and reverse and remand in part.

BACKGROUND

Defendant Independent School District No. 625 (District) hired Stever as a school nurse in 1981. Defendants David A. Bennett, James C. Sargent, and Wanda Miller are the District's superintendent, former director of personnel and staff relations, and supervisor of the school health program, respectively. From the fall of 1981 through the spring of 1985, the District assigned Stever to Como Elementary School, where she worked primarily with physically handicapped special education students. Stever received favorable year-end reviews in 1982 and 1983. During those years, however, Stever repeatedly expressed concerns to Miller regarding a perceived failure by some Como staff to follow state laws requiring immunization of children before enrollment in school.

Stever's third-year evaluation, dated June 3, 1984, noted that "[c]oncerns have been expressed about Ms. Stever's interpersonal relationships which affect her cooperative working relationships with co-workers, students, and parents." It also stated: "Ms. Stever's persistence on her own agenda or task is being seen as irresponsive to needs, lack of listening to concerns and persistence in achieving a result even when it is not a mutual concern of the co-worker or parent." The evaluation recommended that Stever's contract be continued and that she remain at Como "in order that a program to improve interpersonal skills can be developed and monitored."

Stever submitted a written response contesting the criticism of her interpersonal skills and eventually filed a formal grievance through her union requesting that the evaluation be removed from her personnel file. In November 1985, union representatives and the district negotiated a revised When Stever returned to Como in the fall of 1984, building renovations had significantly reduced the space allocated to the nursing ward. In September 1984, Stever expressed concern to Miller and to Como's principal about the loss of a treatment room which had contained a wheelchair-accessible sink and space and equipment for handicapped students. In April 1985, Stever sent Miller a memorandum describing continued problems with wheelchair accessibility in the nursing area and the lack of a toilet in the remaining treatment room. She also expressed concern about an aide who had suffered seizures on the job and reported experiencing harassment and intimidation from "a very small segment of staff members." Stever sent Como's principal a copy of this memorandum on May 7, 1985.

evaluation to replace the original in Stever's file.

In the early spring of 1985, the school nurse at Bridge View Elementary, a school for mentally and physically handicapped students, retired and had to be replaced. Miller discussed the vacancy at Bridge View at a Nursing Advisory Committee meeting in April 1985. Stever's complaint alleges that Miller stated at this meeting that if no one volunteered for the position, she would assign the most qualified nurse with the least seniority. Although Miller offered this position individually to every school nurse in the District, no one volunteered for the job. On May 16, 1985, Stever had an annual "MBO" meeting with Miller and Como's principal. ¹ Stever was offered, and declined, the Bridge View assignment at this meeting.

In July 1985, Miller informed Stever that she was being transferred to Bridge View. Stever's complaint alleges that at the time of the transfer, the District employed at least seven qualified nurses with less seniority than Stever and at least three with seniority equal to Stever's. Miller sent Stever a letter on July 25, 1985, listing her reasons for the transfer:

Bridge View needs a school nurse with knowledge and experience in the technical procedures that are required to provide quality school nursing services to students with severe physical handicaps. You are better prepared in the technical aspects of medically delegated treatments and nursing functions than any other nurse in the district.

. . . . .

Interpersonal relationships at Como have deteriorated to the point where I do not believe that intervention at Como would be helpful in resolving the problem. I am convinced that any process of intervention will need to begin in a new setting with new personnel. ²

Stever filed a grievance over the transfer to Bridge View, but worked the Bridge View assignment for the school year 1985-86. In May 1986, a grievance resolution conference among District and union representatives, Stever, Como's principal, and Miller resulted in Stever being offered reassignment to Como on a trial basis for the 1986-87 school year. ³ In offering this settlement, the District maintained its denial that the transfer to Bridge View violated either school board policy or Stever's contract rights. In accepting the settlement on Stever's behalf, her attorney expressed Stever's concerns about inadequate nursing staff and space at Como, compliance with student immunization requirements, and the attendant risk to students.

Stever returned to Como in the fall of 1986. In January 1987, she sent a memorandum to Miller and to Como's principal regarding difficulties she was experiencing with the heavy nursing caseload at the school. Miller and Como's principal met with Stever several times to discuss a daily timetable to accommodate Stever's numerous tasks. Stever subsequently informed them, however, that the suggested schedule was not sufficiently flexible to meet unexpected problems and that she continued to have inadequate time to attend staff and student intake meetings, complete paperwork, and take a lunch break.

On April 20, 1987, Stever and other Como staff members were assigned to write health assessment reports on Como students to facilitate placement evaluations by the District. The reports were to be completed by April 29, 1987. Stever was unable to complete the reports on time and received several deadline extensions from Miller and two days of extra nursing help at Como to enable her to finish the reports. Stever nonetheless failed to complete all the reports by the end of the school year. She offered to use vacation time to complete them if the District would compensate her, but the District declined to do so. Stever finally completed the health assessment reports on July 9, 1987.

Stever was also expected to complete end-of-year reports as part of the nursing assignment at Como. She missed the May 28, 1987 deadline for these reports and received several extensions from Miller. Stever completed three of nine required reports by July 9, 1987. She never completed the remaining six end-of-year reports.

On July 28, at the direction of David Frye, the District's associate superintendent for instruction, Miller sent Stever a memorandum chronicling Stever's "lengthy delays in completion of health assessments, failure to complete reports and lack of contact or explanation to [Miller] or specified administrators" in failing to comply with deadlines. The memorandum concluded:

Your apparent disregard for meeting required due dates relating to your assignment has affected the District's ability to serve students, and has placed additional burdens on others who must be able to depend on your professional service in order to successfully complete their assigned tasks. I have fully reviewed this matter with Dr. Frye and he has directed me to complete this review of events in memorandum form, to be incorporated into your personnel file.

Miller's memorandum and a similar memorandum from Sargent, the District's director of personnel and staff relations, were placed in Stever's personnel file. On August 24, 1987, Stever was transferred from Como to Horace Mann Elementary School and the St. Paul Developmental Achievement Center (DAC), a private entity which contracted with the District for nursing services. Miller recommended the transfer, which was approved by Frye and supported by Como's principal. Stever filed another grievance challenging the transfer and the placement in her personnel file of memoranda concerning her failure to complete required reports. An arbitrator concluded after a hearing that the memoranda accurately represented the events they discussed and therefore should not be expunged from Stever's record. Stever withdrew her grievance over the transfer to Horace Mann, deciding instead to pursue an action in federal court.

Following the 1987-88 school year, Stever applied for the summer school nursing position at Como, a job she had held in the summer of 1987. Stever's application was denied. Stever alleges that John Brandt, a teacher who processed applications for special education summer school positions in 1988, told her that she would not get the job at Como because she won her initial grievance. In an affidavit, Brandt stated that he was not involved in screening or placement of applicants for the summer school positions and had no personal...