Stacy Altonen v. City of Minneapolis ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3527
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Stacy Altonen, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
City of Minneapolis; William *
McManus, individually, and in his *
capacity as Chief of Police for the City *
of Minneapolis, *
*
Defendants - Appellees. *
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Submitted: March 14, 2007
Filed: June 4, 2007
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Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
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MURPHY, Circuit Judge.
Stacy Altonen, a lieutenant in the Minneapolis Police Department, sued the City
of Minneapolis and Chief of Police William McManus under 42 U.S.C. § 1983,
alleging retaliation in violation of the First Amendment for her support of a competing
candidate for chief. The district court1 granted defendants' motion for summary
judgment, and Altonen appeals. We affirm.
Altonen was hired by the Minneapolis Police Department in September 1987
and received several promotions. On February 9, 2003, then Chief of Police Robert
Olson appointed Altonen to inspector. She was notified at the time of her appointment
that inspectors serve at the pleasure of the chief, that she could be removed at any time
without cause, and that if she were no longer needed as inspector, she would be
reinstated to her former rank as a captain. In October 2003 the city began searching
for a new chief. Altonen applied for the position but was eliminated after the second
round of interviews. She then backed Deputy Chief Lucy Gerold for chief and
telephoned two city council members to express her support. William McManus was
ultimately appointed to the position, and he was sworn in on February 17, 2004.
In January 2003, two weeks before her appointment to inspector, Altonen had
been placed in charge of an investigation into the shooting of officer Duy Ngo.
Although Duy Ngo claimed he had been shot by an unidentified assailant, there was
evidence which caused some to suggest that he had shot himself. After Altonen was
given responsibility for the investigation, she began to believe that department officers
had mishandled the investigation and told Chief Olson about her suspicions. After
McManus became chief, he publicly suspended several officers involved in the Duy
Ngo investigation. At a press conference announcing the suspensions McManus
stated that an allegation with "criminal overtones" had been made claiming several
officers had destroyed a memorandum related to the case. Gerold and one of her
supporters were among those suspended. The allegation was later found to be without
merit, and the officers were reinstated.
1
The Honorable David S. Doty, United States District Judge for the District
of Minnesota.
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In December 2003 Altonen became the subject of a human resources
investigation based on the complaint of Lieutenant Robert Skomra. Skomra had
alleged that Altonen had violated the city’s Respect in the Workplace Policy by
having him transferred out of the homicide division so that he could be replaced by
an officer with whom he thought she had a personal relationship. At the end of
February 2004 Altonen contacted lead investigator Jessica Jackson about the status
of the inquiry into Skomra's complaint. Jackson informed her that the investigation
had been closed and that the allegations were not sustained. Altonen requested a copy
of the Skomra investigative file. When her request was denied, she filed a lawsuit
under the Minnesota Government Data Practices Act to gain access to it.
Department protocol provides that when an employee is accused of violating
the Respect in the Workplace Policy, an investigator is assigned to gather evidence
and prepare a memorandum of findings and recommendations for a "need to know"
committee. An investigation cannot be closed until that committee meets to review
the findings and recommendations and to consider whether additional information is
needed. Altonen’s need to know committee included Chief McManus; it met for the
first time on March 11, 2004. Jackson had expressed doubt that additional interviews
were necessary, but McManus disagreed even though he had received a memorandum
from Skomra on March 5 rescinding his claim and stating that he now believed
Altonen had not been involved in his transfer. The committee agreed to continue the
investigation but closed it after the additional interviews because the evidence did not
support the allegations.
Altonen received the investigative file in May 2004 and discovered that one
reason Chief McManus had extended the investigation was because he suspected
Skomra's complaint against Altonen and the Duy Ngo investigation were part of the
same “big picture.” Altonen argues that this comment revealed McManus’s animus
toward those who had supported Gerold because it connected her to the officers who
had been temporarily suspended for allegedly destroying a key document and who had
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also opposed McManus’s appointment as chief. Jackson's notes in the Skomra file
also suggested that McManus thought Altonen and Gerold were conspiring to bring
a sexual harassment lawsuit.
In May 2004 the department's director of administrative services resigned, and
management determined it was necessary to downsize. The decision to downsize
required shifting assignments throughout the department. Deputy Chief Sharon
Lubinski had expressed concern to McManus about Altonen's ability to communicate
and work as a team member. Lubinski believed Altonen had mismanaged the
spending on a Neighborhood Revitalization grant and discovered that she had allowed
a photograph critical of McManus to be posted publicly in a station in her precinct.
Deputy Chief Timothy Dolan also observed that Altonen had communication
problems with Lubinski and animosity toward McManus.
Dolan knew that the administrative services division had an opening that was
appropriate for a captain, and he suggested reassigning Altonen to save the department
from hiring an additional officer. Both he and Lubinski suggested removing Altonen
from her inspector position, and McManus reassigned her to captain of the
administrative services division on May 16, 2004. The reassignment decreased her
salary by $12,000, and she lost access to the car she had been allowed to keep at her
residence. Altonen's responsibility for professional development was assigned to
someone else, and she had much less responsibility in her new position and fewer
reports than other officers of her rank. Although she had been scheduled to attend a
senior management training session, her spot was taken by an officer who had not
supported Gerold for chief.
Altonen sued Chief McManus and the City of Minneapolis in state court,
alleging violations of her First Amendment rights under 42 U.S.C. § 1983. She
claimed that her reassignment, the extended investigation into Lieutenant Skomra’s
complaint, and the lost opportunity to attend the management training session were
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adverse employment actions taken against her in retaliation for supporting Lucy
Gerold for chief and for filing the lawsuit to gain access to the file from the Skomra
complaint. As evidence that she had been reassigned because of her speech, she
offered a transcript of an interview of Lieutenant Mike Martin by the Bureau of
Criminal Apprehension. He reported that he had heard Chief McManus repeatedly
comment that he intended to "take out" Gerold and her supporters. Altonen also
brought a claim under the Minnesota whistleblower statute, Minn. Stat. § 181.932,
alleging retaliation in response to her lawsuit. Defendants removed the case to federal
district court and moved for summary judgment based on qualified immunity.
The district court concluded that Altonen's lawsuit to gain access to the Skomra
investigative file was not protected speech because it was not related to a matter of
public concern, but that her support of Gerold for chief was protected. It determined
that her reassignment was an adverse employment action but that she had not shown
a causal connection between her support for Gerold and her reassignment. The court
also concluded that appellees had shown that Altonen would have been reassigned
regardless of her support for Gerold. Finally, the district court declined to exercise
supplemental jurisdiction over her whistleblower claim and dismissed it without
prejudice.
Altonen appeals from the grant of summary judgment, arguing that the district
court made several erroneous legal and factual determinations. We review the appeal
of a grant of summary judgment de novo, with the evidence taken in the light most
favorable to the nonmoving party. Senty-Haugen v. Goodno, 462 F.3d 876, 885 (8th
Cir. 2006). Summary judgment is appropriate if the evidence viewed in this manner
demonstrates that there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56 (c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Johnson v. Blaukat, 453 F.3d 1108, 1112 (8th
Cir. 2006).
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To establish her First Amendment retaliation claim, Altonen must prove that
she engaged in protected activity and that this activity was a substantial or material
factor in her employer's decision to take an adverse employment action. See Hughes
v. Stottlemyre, 454 F.3d 791, 796 (8th Cir. 2006). If this showing is made, the burden
shifts to the employer to demonstrate that it would have taken the same action
regardless of her First Amendment activities. Id. Although Altonen’s activities
might have involved both affiliation and speech rights, she rests her claim on
violations of her right to free speech. See O’Hare Truck Service, Inc. v. City of
Northlake, 518 U.S. 712, 720 (1996). Speech is protected if it relates to a matter of
public concern; if this is shown, the court must then determine whether Altonen’s First
Amendment interest outweighs any injury to the department’s efficient operations.
See Kincade v. City of Blue Springs, 64 F.3d 389, 395 (8th Cir. 1995); Pickering v.
Bd. of Educ., 391 U.S. 563, 574 (1968). Altonen bears the burden of demonstrating
that her speech is protected. See Calvit v. Minneapolis Pub. Sch., 122 F.2d 1112, 1116
(8th Cir. 1997).
Altonen first argues that the district court erred by concluding that her lawsuit
was not protected speech. The court concluded that her interest in filing the lawsuit
was to obtain confidential information about an allegation against her and that this was
a personal interest not related to a matter of public concern. Altonen argues that her
lawsuit was intended to inform the public about inconsistencies in the Duy Ngo case
and that the trial court made a factual determination about her motive when it should
have been presented to a jury. Whether expressive activity is protected by the First
Amendment is a legal question. Schilcher v. Univ. of Arkansas, 387 F.3d 959, 963
(8th Cir. 2004). We conclude that the district court did not err by undertaking this
analysis on the summary judgment motion.
When speech relates both to an employee's private interests as well as matters
of public concern, the speech is protected if it is primarily motivated by public
concern. Bailey v. Dep't of Elem. & Secondary Educ., 451 F.3d 514, 518 (8th Cir.
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2006). If the main motivation for the speech was furthering Altonen’s “private
interests rather than to raise issues of public concern, her speech is not protected, even
if the public would have an interest in the topic of her speech." See id. The
motivation for her speech is determined by evaluating the speech's content, form, and
context. Kincade, 64 F.3d at 396. The context and content of Altonen’s lawsuit
suggest that her primary motivation was her personal interest in obtaining access to
her files, not to provide the public with information. Altonen now contends that her
motive was to inform the public about the mishandling of the Duy Ngo investigation,
but the record does not show that and Altonen only learned that McManus believed
the Duy Ngo investigation and Skomra’s complaint were part of the same "big
picture" months after she initiated her lawsuit. Moreover, she did not attempt to
gather other information even though the Duy Ngo case was extensive and included
numerous documents.
The issue related to the Skomra complaint file makes this case similar to Adair
v. Charter Cty. of Wayne, 452 F.3d 482 (6th Cir. 2006). In Adair, the plaintiff's Fair
Labor Standards Act lawsuit was not protected speech because it related only to
personal employee overtime pay. Id. at 492. Altonen has not identified any place in
the record that shows she filed the suit as a concerned citizen attempting to inform the
public about her government employer's practices. We conclude that the district court
did not err in concluding that Altonen's lawsuit was not a matter of public concern.
The district court determined that Altonen's support of Gerold was protected
speech, and appellees do not contest this point. The question therefore is whether
Altonen suffered any adverse employment action as a result of her support of Gerold.
Altonen argues that the district court erred in concluding that the need to know
committee's decision to continue the internal investigation after March 11 was not an
adverse employment action. The district court reasoned that the investigation resulted
in no discernible change to her employment.
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Altonen has the burden of proving that the alleged employment action adversely
and materially altered the terms or conditions of her employment. See Bechtel v. City
of Belton, 250 F.3d 1157, 1162 (8th Cir. 2001). Although actions short of termination
can at times be considered adverse employment decisions, “[n]ot everything that
makes an employee unhappy is an actionable adverse decision." Id. (citation omitted).
There is no evidence in the record that Altonen's position changed in any way
due to the Skomra investigation or the additional interviews conducted after the March
11 need to know meeting. Internal investigations into employee complaints are not
adverse employment actions when they do not result in any change in form or
condition to the employee’s employment. Jones v. Fitzgerald, 285 F.3d 705, 715 (8th
Cir. 2002). Here, the investigation determined that Skomra's complaint against
Altonen was without merit. Altonen has not shown that management took disciplinary
action against her for any reason related to the investigation. We conclude that the
district court did not err in concluding that the need to know committee’s decision to
hold additional interviews after its March 11 meeting was not an adverse employment
action.
The district court determined that Altonen's reassignment was an adverse
employment action, and this is not contested on appeal. To avoid summary judgment,
Altonen had to demonstrate that her support of Gerold was a substantial, motivating
factor that caused her reassignment and that McManus had a retaliatory motive that
"played a part in the adverse employment decision." See Hughes, 454 F.3d at 797.
Evidence that gives rise to an "inference of retaliatory motive" is sufficient to prove
a causal link between the speech and the adverse action. See Kipp v. Missouri
Highway and Transp. Comm'n, 280 F.3d 893, 897 (8th Cir. 2002). If that showing is
made, the burden shifts to the defendant to demonstrate the employer would have
taken the same action regardless of the protected conduct. Id.-8-
The district court determined that Altonen failed to meet her burden because the
evidence she presented did not support an inference that she was reassigned because
of a retaliatory motive. Altonen argues that the suspensions of Gerold and her
supporters and the comments of McManus concerning his political opponents
establish the required causal link. The comments of the chief recounted in Lieutenant
Martin's interview all referred to named individuals; there is no evidence from Martin
that any animus was directed at Altonen. Altonen continued in her position as
inspector for three months after McManus was sworn in. See id. (two month delay
between protected activity and adverse employment action dilutes an inference of
causation). Although Altonen presented evidence that McManus suspected Skomra's
complaint and the Duy Ngo investigation were part of a larger conspiracy connecting
Altonen to the suspended officers, she points to no evidence in the record that his
conjecture about the "big picture" contributed to her reassignment.
Appellees presented evidence that weighs against inferring a retaliatory motive
and they point to evidence in the record that suggests Altonen’s reassignment was
based on nonretaliatory reasons. See Rath v. Selection Research, Inc., 978 F.2d 1087,
1090 (8th Cir. 1992) (defendants' submission of legitimate, nondiscriminatory reasons
for adverse employment decision weakens inference of causation). They showed that
her reassignment followed the resignation of the administrative services director
which caused a shift in positions throughout the department, that the department had
made a commitment to reduce spending and Altonen's reassignment contributed to
that goal, and that the two chief deputies questioned the quality of Altonen's
contribution to the management team. Also relevant is that Altonen was notified at
the time she was promoted to inspector that it was an at will position and that she
could be returned to her captain position at any time without cause. Altonen had the
burden to demonstrate a causal connection between her protected speech and the
adverse employment action of reassignment as part of establishing her prima facie
case. See Hughes, 454 F.3d at 796-97. We conclude that she did not present sufficient
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evidence to create an inference of retaliatory motive and failed to establish a prima
facie case.2
Accordingly, we affirm the judgment of the district court.
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2
Because of this conclusion, we need not determine whether appellees
demonstrated that Altonen would have been transferred quite apart from her
support of Gerold.
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