Wilson v. Miller

Decision Date25 April 2016
Docket NumberNo. 15–1415.,15–1415.
Citation821 F.3d 963
PartiesCynthia WILSON, Plaintiff–Appellant v. Jayne MILLER, individually and in her official capacity as Minneapolis Park and Recreation Superintendent; Minneapolis Park and Recreation Board, Defendants–Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Lisa Lamm Bachman, argued, Hannah Jo Woolsey, on the brief, Minneapolis, MN, for PlaintiffAppellant.

Ann E. Walther, argued, Karin Ennette Peterson, on the brief, Minneapolis, MN, for DefendantsAppellees.

Before RILEY, Chief Judge, SMITH and SHEPHERD, Circuit Judges.


, Circuit Judge.

Cynthia Wilson appeals the district court's1 grant of summary judgment in favor of Jayne Miller on Wilson's 42 U.S.C. § 1983

First Amendment retaliation claim and the court's dismissal of Wilson's supplemental claim against Miller and the Minneapolis Park and Recreation Board asserting discrimination in violation of the Minnesota Human Rights Act. The district court found that Wilson could not demonstrate that her protected speech was a substantial or motivating factor in her adverse employment actions. We affirm.


We derive our recitation of the facts from the district court's factual summary made in the light most favorable to Wilson, the non-moving party. Henderson v. Munn, 439 F.3d 497, 499 n. 2 (8th Cir.2006)

. The Minneapolis Park and Recreation Board (the MPRB) has employed Appellant Cynthia Wilson, an African American woman, in various capacities since 1989. Since 2010, Appellee Jayne Miller has held the position of MPRB superintendent.

In January 2011, before Wilson engaged in the protected speech at issue in this case, the MPRB terminated Wilson for failing to supervise a staff member properly. Wilson challenged her termination and was reinstated with a 30–day suspension after a civil service hearing officer concluded that termination was too harsh. According to the civil service hearing officer, Wilson had never received any discipline prior to the recommendation for her termination and her past performance evaluations had always been “good” to “excellent.” Appellee Miller attended the hearing and heard Wilson's testimony. Upon Wilson's return to work in July 2011, Wilson was directed to reimburse the MPRB for personal calls made on her cell phone issued by the MPRB. She refused to compensate the MPRB and was suspended one day for insubordination.

In the instant case, Wilson alleges that Miller retaliated against her for engaging in activity protected by the First Amendment on two separate occasions. First, on September 13, 2012 the Minnesota Spokesman–Recorder published an article highlighting complaints of racial discrimination within the MPRB. The article quoted Wilson, who discussed her concerns about racial discrimination. Miller was also quoted in the article. The second occasion occurred on December 18, 2012, when Wilson attended an open budget meeting for all departments of the MPRB. The MPRB employees were encouraged to ask questions and make comments about the budget process. During the meeting, Wilson inquired into whether the MPRB was going to continue to use a certain consultant who had identified specific problems regarding the work environment at the MPRB.

Wilson asserts that Miller caused her to suffer several adverse employment actions after the newspaper published her remarks and after Wilson voiced concerns in the budget meeting. First, Wilson argues that she was denied three opportunities to advance within the MPRB when she was not selected for the positions of Deputy Superintendent, Assistant Superintendent of Recreation, or Director of Recreation Centers and Programs. The posting for Deputy Superintendent was “kind of hidden” on the MPRB's website, and Miller argues that the hidden posting was retaliation for her comments published in the newspaper. Wilson further alleges that Miller put the search for the Assistant Superintendent of Recreation “on hold” and eventually awarded the position to an external candidate in retaliation for Wilson's reinstatement. In March 2013, Wilson applied, interviewed, and was a finalist for the position of Director of Recreation Centers and Programs. Ultimately, she was not selected for the position. She asserts that Miller provided negative comments in Wilson's 2012 performance evaluation regarding Wilson's comments in the budget meeting, and that hiring managers did not choose her as the Director of Recreation Centers and Programs because of the performance evaluation.

Specifically, the performance evaluation provided that Wilson “needs improvement” in the areas of communication skills and interpersonal skills. The comments in these areas referenced Wilson's remarks at the budget meeting. On December 30, 2012, Wilson emailed Teresa Chaika, the MPRB's Human Resources Manager, complaining that Miller retaliated against her in the annual evaluation for Wilson's questions during the budget meeting. After Wilson's complaint to Human Resources, her performance ratings in certain areas were amended. In the category of communications skills, her rating was changed from “needs improvement” to “meets expectations.” In the areas of decision-making/problem-solving and interpersonal skills, her performance ratings were changed from “meets expectations” to “needs improvement.” Wilson was marked as “meets expectations” in all other categories and was given an overall rating of “meets expectations.”

In addition to the performance evaluation and the failure to promote Wilson, Wilson alleges that a performance improvement plan and two suspensions were retaliatory acts. In April 2013, one of Wilson's supervisors instructed Wilson to discipline two of Wilson's subordinates for their work-related conduct. Wilson completed the paperwork for written warnings but refused to sign the written warning for one employee, insisting that it did not accurately reflect her view of the appropriate disciplinary measure. As a result, Wilson received a ten-day suspension without pay for insubordination. Upon her return to work, she refused to sign the second employee's warning and received another unpaid suspension, this time for twenty days. When Wilson returned to work in July 2013, Wilson's manager placed her on a performance improvement plan as a result of her two suspensions.

Wilson filed this action, asserting claims under 42 U.S.C. § 1983

for violations of her First Amendment and equal protection rights, as well as for reprisal and aiding and abetting race and color discrimination under the Minnesota Human Rights Act. Later, she voluntarily withdrew the § 1983 equal protection claim.

The district court granted in part Defendants' motion for summary judgment and declined to exercise jurisdiction over the remaining state law claim. Specifically, the district court held that Wilson failed to establish a municipal “custom” of unconstitutional misconduct by the MPRB or that her protected speech was a substantial or motivating factor in the employment decisions, and thus the MPRB and Miller were entitled to summary judgment on Wilson's § 1983

First Amendment retaliation claim. Finally, the district court declined to exercise supplemental jurisdiction over Wilson's state law claims. On appeal, Wilson contests the district court's holding regarding Miller's individual liability and the court's dismissal of the supplemental state law claims. We address these arguments in turn.


A district court “shall grant summary judgment 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

. We review the district court's grant of summary judgment de novo, drawing all reasonable inferences, without resort to speculation, in favor of the non-moving party.” Carrington v. City of Des Moines, Iowa, 481 F.3d 1046, 1049 (8th Cir.2007) (quoting Johnson v. Ready Mixed Concrete Co., 424 F.3d 806, 810 (8th Cir.2005) ).

To establish a prima facie case of First Amendment retaliation, a plaintiff must allege and 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 conduct was a substantial or motivating factor in the defendant's decision to take the adverse employment action.” Davison v. City of Minneapolis, Minn., 490 F.3d 648, 654–655 (8th Cir.2007)

(citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) ). If the plaintiff satisfies this burden, then 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, 97 S.Ct. 568 ).

Miller concedes that Wilson's newspaper interview as well as Wilson's questions and comments during the open budget meeting are protected by the First Amendment, but argues that her performance evaluation was not an adverse employment action. Wilson asserts that the negative performance evaluation, suspensions and write-ups, a performance improvement plan, and refusal to promote her constituted adverse employment actions.

A. Performance Evaluation

“To constitute an adverse employment action, the employer's decision must effect a material change in the terms or conditions of employment.” Hughes v. Stottlemyre, 454 F.3d 791, 796 (8th Cir.2006)

. Standing alone, a poor performance rating does not constitute an adverse employment action because it has no tangible effect on the employee's conditions of employment. Turner v. Gonzales, 421 F.3d 688, 696 (8th Cir.2005). “An unfavorable evaluation is actionable only where the employer subsequently uses the evaluation as a basis to detrimentally alter the terms or conditions of the recipient's employment.” Id. (quoting Spears v. Mo. Dep't of Corr. & Human Res., 210 F.3d 850, 854 (8th Cir.2000)...

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