Kathy Davison, Appellant, v. City of Minneapolis, Minnesota; Rocco Forte, in his individual and official capacities, Appellees.
No. 06-2368
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Submitted: January 12, 2007 Filed: June 20, 2007 (Corrected: 06/26/2007)
Before COLLOTON, BRIGHT, and GRUENDER, Circuit Judges.
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 quints1 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.”
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 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
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
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
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 not actually addressing the budget constraints it was designed to alleviate.
In November 2003, a third Arson Investigator position opened. The Fire Department panel interviewed Captain Davison, Lindberg and Denise Bryn, whom
The record contains extensive facts regarding Chief Forte’s knowledge of Captain Davison’s media appearances. He specifically admitted to seeing the summer 2003 article in the Pioneer Press and the August 2003 article in The Rake and hearing about the MPR interview. He also knew that the local news programs ran “four or five” stories on the Union’s opposition to the Plan and knew stories ran in the major local newspapers and in neighborhood magazines such as the Southwest Journal. Chief Forte also testified to the following facts: he and his Plan received a lot of negative media coverage; he would have discussions with Mayor Rybak as the media coverage occurred; he was disheartened by the negative media coverage; he was interviewed for many stories in the media coverage; he was aware that Captain Davison was quoted in many of the media stories; he believed Captain Davison was quoted in the media coverage more than anyone else; he thought of Captain Davison as the “face of the union”; he knew Captain Davison was vocal in her opposition to the Plan; and he frequently discussed the media coverage with people in his office. The record also reveals that Chief Forte was not happy about Captain Davison’s outspoken opposition to the Plan and that Union opposition delayed its implementation.
Captain Davison filed this lawsuit against the City of Minneapolis and Chief Forte, in his individual and official capacities, alleging unlawful retaliation for engaging in speech and association activities protected by the First Amendment. After discovery, Appellees moved for summary judgment, which the district court granted. As to Chief Forte, the district court found that Captain Davison failed to demonstrate a causal connection between her protected activities and his decisions not to promote her. As to the City of Minneapolis, the district court found that Chief Forte did not have the policymaking authority necessary to subject the City of Minneapolis to
II. DISCUSSION
We review the district court’s denial of summary judgment de novo. Hughes, 454 F.3d at 796. “Summary judgment is proper where the evidence, when viewed in the light most favorable to the nonmoving party, indicates that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law.” Id. (quoting Spears v. Mo. Dep’t of Corr. & Human Res., 210 F.3d 850, 853 (8th Cir. 2000)).
A. First Amendment Retaliation
To establish a prima facie case of retaliation, a plaintiff must allege and prove 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. Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 287 (1977). If the plaintiff meets this burden, the burden shifts to the defendant to demonstrate that
There is no dispute that Chief Forte was aware of Captain Davison’s protected union and speech activities that were repeatedly critical of his Plan. Chief Forte was aware of her media appearances, referred to her as “the face of the union” and admitted that she appeared in the media more than any other firefighter. He also testified that Captain Davison was the only person to link the Plan to Gallagher’s death, an allegation he was forced to discuss with the public and with Councilman Benson. Moreover, Chief Forte often discussed Captain Davison’s media appearances with two members of the interview panel, Assistant Chiefs Seal and Clack. All three men testified that newspaper articles covering her activities “float[ed] around the office” and that they frequently discussed media coverage of the Union’s opposition to the Plan.
Turning to whether Chief Forte’s knowledge of her protected activities motivated his decisions not to promote Captain Davison, we find our Hughes case instructive. In Hughes, a sergeant with the state highway patrol brought a First
We believe that the facts put forth by Captain Davison are similar to those in Hughes and are likewise sufficient to create a genuine issue of material fact as to whether her activities were a motivating factor in the promotion decisions. See id. at 799. Captain Davison began engaging in constitutionally protected activities in October 2002. Chief Forte was unhappy with and disheartened by the public opposition to the Plan led by Captain Davison, whom he referred to as “the face of the Union.” After one public meeting during which Captain Davison challenged the Plan’s impact on public safety, Chief Forte got visibly upset by her remarks and verbally expressed his displeasure with her to Union President Thornberg, telling him to “get your board under control.” As a result of Captain Davison’s efforts, Chief Forte repeatedly had to address with the public, and once with Councilman Benson,
In addition, temporal proximity between protected activity and an adverse employment action can contribute to establishing the third element of a prima facie case of retaliation. In Hudson v. Norris, we held that the plaintiff’s “exemplary” record in combination with the fact that the adverse employment action took place within four months of the protected conduct, was sufficient to allow “a reasonable jury to infer a causal link between [the two].” 227 F.3d 1047, 1051, 1053 (8th Cir. 2000). We stated that an adverse action that occurs on the heels of protected activity “is significant evidence that what happened . . . was more than just coincidence.” Id. at 1051. Likewise, in Stever v. Independent School District No. 625, we stated that “the order and temporal proximity of [the challenged employment action and the protected activity] should not be regarded as coincidental on a motion for summary judgment.” 943 F.2d 845, 852 (8th Cir. 1991).
Captain Davison’s protected activities began in October 2002 and were ongoing through December 1, 2003, when she was denied for the third time the promotion to Arson Investigator. Her first promotion attempt was denied four months after Chief Forte told Union President Thornberg to get his board under control and after Captain Davison appeared on local news programs. It occurred three months after Captain
In sum, we disagree with the district court and hold that the evidence of Chief Forte’s knowledge of her protected activities and his expressed displeasure with them, in combination with the proximity of the three promotion denials, constitutes sufficient evidence to create a genuine issue of material fact as to whether the promotion decisions were at least in part motivated by Captain Davison’s constitutionally protected activities.
With there being sufficient evidence for a jury to conclude that Captain Davison’s protected activities were a motivating factor in Chief Forte’s decisions not
Appellees do not dispute that the two deviations occurred—when Chief Forte promoted both Cornell and Westall over candidates with higher interview scores. Rather, Appellees argue that because Chief Forte has complete discretion over which certified candidate to hire and is not bound by his personal practice of always selecting the candidate with the highest interview score, Cornell’s and Westall’s promotions do not invalidate their same-decision defense. Viewing the evidence in the light most favorable to Captain Davison, we cannot conclude that as a matter of law Chief Forte demonstrated that he would have made the same decision in the absence of her protected activities. See Mt. Healthy, 429 U.S. at 287.
With respect to Cornell’s promotion, we recognize that the difference between her interview score and Thomas’s interview score was slight, indeed only 0.66 points. Nonetheless, Chief Forte’s decision to promote Cornell stands in direct conflict with his testimony that he selects the top-scoring interviewee “100% of the time.” In light of this categorical assertion by Chief Forte, we believe that accepting Appellees’ position that Cornell’s and Thomas’s interview scores were “substantially identical” and that therefore Chief Forte’s deviation from his policy is not significant borders too closely on weighing the evidence and assessing Chief Forte’s credibility, tasks that we
Similarly, we believe that Captain Davison’s proffered evidence regarding Westall’s promotion creates a genuine issue of material fact as to whether Chief Forte would have made the same decision. Twenty-three positions for Captain were open when top-certified candidate Westall interviewed for the position. His interview score placed him 24th out of the 25 certified candidates. If it actually were Chief Forte’s policy to select candidates with the highest interview scores, Westall would not have been selected. Like Westall, Captain Davison was the top-certified candidate and had an interview score that ranked her one spot below the number of positions available, at least for the second and third Arson Investigator promotion opportunities.
In combination, the evidence presented by Captain Davison regarding Cornell’s and Westall’s promotions, which directly contradicts Chief Forte’s testimony, is sufficient to create a genuine issue of material fact as to whether Chief Forte would have made the same decision in the absence of her protected activities. See Mt. Healthy, 429 U.S. at 287. Appellees’ same-decision defense rests solely on Chief Forte’s categorical policy of hiring the candidate with the top interview score. Captain Davison presented evidence that would allow a reasonable jury to conclude that because Chief Forte deviated from his policy in the past, he may have deviated to hire Captain Davison as well had she not engaged in the protected activities. Thus, we conclude that the district court’s grant of summary judgment in favor of Chief Forte was improper.
B. Municipal Liability
The City of Minneapolis may be held liable under
However, even in the absence of an official policy or a custom, the Supreme Court has made clear that though “[p]roof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell,” Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985), “an unconstitutional government policy could be inferred from a single decision taken by the highest officials responsible for setting policy in that area of the government’s business,” Praprotnik, 485 U.S. at 123. In this scenario, “[m]unicipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). The district court also denied Captain Davison’s Monell claim on this ground, finding that there was no evidence that Chief Forte had the final authority to make municipal policy. On appeal, Captain Davison argues that Chief Forte’s authority to decide whom to promote in the Fire Department is enough to subject the City of Minneapolis to liability under
Thus, for example, the County Sheriff may have discretion to hire and fire employees without also being the county official responsible for establishing county employment policy. If this were the case, the Sheriff’s decisions respecting employment would not give rise to municipal liability, although similar decisions with respect to law enforcement practices, over which the Sheriff is the official policymaker, would give rise to municipal liability. Instead, if county employment policy was set by the Board of County Commissioners, only that body’s decisions would provide a basis for county liability. This would be true even if the Board left the Sheriff discretion to hire and fire employees and the Sheriff exercised that discretion in an unconstitutional manner; the decision to act unlawfully would not be a decision of the Board. However, if the Board delegated its power to establish final employment policy to the Sheriff, the Sheriff’s decisions would represent county policy and could give rise to municipal liability.
Id. at 483 n.12; see also Praprotnik, 485 U.S. at 128 (holding that even assuming that supervisors transferred plaintiff in retaliation for speech, “it says nothing about the actions of those whom the law established as the maker of municipal policy in matters of personnel administration”). We believe the facts of this case are encompassed by the Pembaur hypothetical and agree with our sister circuits that “[t]he discretion to hire and fire does not necessarily include responsibility for establishing related policy.” Greensboro Prof’l Fire Fighters Ass’n, Local 3157 v. City of Greensboro, 64 F.3d 962, 966 (4th Cir. 1995); accord Radic v. Chicago Transit Auth., 73 F.3d 159, 161 (7th Cir. 1996) (noting the plaintiff’s argument was flawed because of its “failure accurately to distinguish between authority to make administratively final decisions and authority to establish official municipal policy”) (citing Monell and Pembaur).
Even if Captain Davison had argued that Chief Forte was delegated final policymaking authority regarding employment practices on behalf of the City of Minneapolis, we would conclude that he was not. “[W]hether an official had final policymaking authority is a question of state law.” Pembaur, 475 U.S. at 483 (noting that “[a]uthority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority”). In cases such as this one involving a city official, courts consult the applicable city charter, code or ordinances. See Greensboro, 64 F.3d at 965 (citing a city ordinance as establishing the authority conferred upon the City Manager and City Council with regard to employer-employee relations for the purpose of a
Our review of the Minneapolis Charter and Code of Ordinances reveals that the Fire Chief has not been delegated final policymaking authority regarding employment practices for the Fire Department. Rather, it reveals that the City Coordinator and Civil Service Commission are vested with final policymaking authority regarding employment practices for the entire city, including the Fire Department. For example, the Minneapolis Charter establishes and authorizes the Civil Service Commission to make, amend or repeal rules in order to promote sound personnel practices for the entire city. Minneapolis, Minn. Charter, ch. 19 §§ 4, 7. Likewise, the City Coordinator provides administrative and management services for the city, including personnel. 2 Minneapolis, Minn. Code of Ordinances § 21.10. In contrast, the Fire Chief is limited in his authority to the operations of the Fire Department. 9 Minneapolis, Minn. Code of Ordinances § 173.20. Thus, even though Chief Forte may have had final authority to determine whom to promote to Arson Investigator and also to design the particular procedures to be used when doing so, he was not authorized to establish policy regarding employment practices, including policy regarding consideration of an employee’s union status or activity in making promotion decisions. See Greensboro, 64 F.3d at 966. As a matter of law, that authority rests with the Civil Service Commission and the City Coordinator, not the Fire Chief. Cf. Bechtel v. City of Belton, 250 F.3d 1157, 1158, 1161 (8th Cir. 2001) (holding no municipal liability in light of City Administrator’s “ultimate authority to approve or
In sum, without authority delegated to him, either by the city Charter or Code of Ordinances, to make final municipal policy regarding employment practices, Chief Forte’s final decisionmaking authority regarding whom to promote in the Fire Department is insufficient to subject the City of Minneapolis to liability for his actions. As such, we conclude that the district court correctly granted summary judgment in favor of the City of Minneapolis.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s entry of summary judgment as to the City of Minneapolis and reverse its entry of summary judgment as to Chief Forte, and we remand for further proceedings consistent with this opinion.
COLLOTON, Circuit Judge, concurring in the judgment in part and dissenting in part.
Five firefighters were considered by the fire chief for three promotions that were available within the Minneapolis Fire Department between October 2002 and November 2003. One unsuccessful applicant, Kathy Davison, was an outspoken critic
Like a claim of retaliation under
The majority nonetheless declines to follow the methodology of Graning, Duffy, and Hudson, and opts instead for an approach that gives the plaintiff the best of both worlds. In concluding that Davison made a prima facie case, the majority relies substantially on precedents that merely shifted the burden of production under the McDonnell Douglas framework. Ante, at 11-12 (discussing Hughes v. Stottlemyre, 454 F.3d 791, 799-800 (8th Cir. 2006), and Hudson, 227 F.3d at 1051); see also Hughes v. Stottlemyre, No. 04-4053, 2006 WL 3498325, at *1 (W.D. Mo. Dec. 4,
I would instead follow our circuit’s predominant approach and apply the Mt. Healthy paradigm only if Davison has produced direct evidence of discrimination.11
The record generated by Davison is bereft of “direct evidence” that Chief Forte denied her a promotion based on her exercise of First Amendment rights. Her case is entirely circumstantial, and it is not supported by strong evidence that provides a “specific link” between the alleged discriminatory animus and the challenged promotion decisions. As the majority opinion demonstrates, ante, at 10-12, she relies entirely on the temporal proximity of her speech to the promotion decisions and on
Because Davison has not produced direct evidence of discrimination, McDonnell Douglas provides the proper framework for considering her claim, and the burden of proof remains with Davison throughout. Graning, 172 F.3d at 615 n.3.12 As the record was fully developed on the motion for summary judgment, we may dispense with the sequential steps of the burden-shifting framework and focus on the ultimate question of whether there was sufficient evidence of discrimination to make a submissible case of unconstitutional action by the fire chief. Jones v. United Parcel Serv., Inc., 461 F.3d 982, 992 (8th Cir. 2006), cert. denied, 127 S. Ct. 2088 (2007); Riser v. Target Corp., 458 F.3d 817, 820-21 (8th Cir. 2006), cert. denied, 127 S. Ct. 1382 (2007). I conclude that Davison also fails to generate a submissible case under that framework.
Much of the evidence cited by Davison does little to advance her claim. Of course, the fire chief was “aware” of Davison’s protected activities, ante, at 9, but an outspoken employee cannot make a case of discrimination simply by showing that the
Davison also relies on evidence that after one public meeting in which she criticized the fire department’s plan, Chief Forte was “visibly upset” by her remarks and told the union president to “get [his] board under control.” As the district court observed, “the full context of the quotation is not given, so it cannot be determined what precisely Forte was referring to.” Davison v. City of Minneapolis, No. 04-3399, 2006 WL 980814, at * 4 (D. Minn. Apr. 13, 2006). Whether or not Davison was seeking a promotion at the time, the fire chief understandably was involved in urging the union president and the union board to support his policies. Because the comment was within the scope of what normally could be expected of a fire chief performing his duties, regardless of Davison’s employment status, this cryptic statement is a slender reed on which to base a claim of retaliatory discrimination in the promotion process.
Davison and the majority make much of the fact that while Forte said that he selected the person recommended by the interview panel “100 percent of the time,” (id. at 57, Exh. B, at 325), he actually deviated from the panel’s recommendation twice – that is, in 275 promotion decisions, Forte promoted the top-scoring candidate only 99.3 percent of the time. On two occasions during his six-year tenure, Forte promoted the second-ranked candidate. This minor discrepancy does not create a trial-worthy case of discrimination, because the showing of pretext is weak, and the two aberrational cases do nothing to bolster Davison’s claim that she was a victim of discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000). It is undisputed that Davison never was the candidate ranked highest by the unbiased interview panel. Forte did not, therefore, select a second-ranked candidate over Davison while she was ranked first. When the chief selected Cornell for the first position, he passed over the first-ranked Thomas. Davison was ranked number three.
To survive a motion for summary judgment, a plaintiff must show more than a “colorable” claim of discrimination. She must produce evidence that is “significantly probative” of discriminatory intent. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The evidence in this case does not meet that threshold. It surely does not constitute strong, “direct evidence” of discrimination that warrants treating this as a “mixed motive” case in which the burden of proof shifts to the fire chief. To the contrary, there is every reason on this record to believe that Jennifer Cornell, Tim Thomas, and Denise Bryn earned and deserved the promotions that they received. I would therefore affirm the judgment of the district court.