Meyers v. StarkeMeyers v. Starke
Douglas Dexter, argued, Asst. Atty. Gen., Lincoln, NE, for appellee.
Before MURPHY, BYE, and SMITH, Circuit Judges.
SMITH, Circuit Judge.
Vicky Meyers appeals the decision of the magistrate judge1 granting judgment as a matter of law pursuant to
I. Background
Starting in May 1998, Meyers worked for NHHS as a Protection and Safety Worker (PSW) in its Gering office. In that position, Meyers monitored children in the custody and care of NHHS. She served as part of the NHHS staff group (Treatment Team) that made placement and treatment recommendations to the courts for children. In that role, Meyers appeared аt court hearings and testified as a representative of NHHS and the Treatment Team. Joyce Starke and Darren Duncan supervised Meyers in Gering. Kathy Carter, the NHHS Protection and Safety Administrator for the Western Service Area, supervised Starke and Duncan and was responsible for personnel decisions in the Gеring local office.
In late 1999, Meyers disagreed with the Treatment Team‘s recommendation for the best regimen for two children exhibiting dysfunctional behaviors in their foster placement. Meyers believed that therapeutic placement was preferable to their current situation. Starke and Duncan agreed with the Treatment Team. Meyers alleges that the remainder of the Treatment Team strongly urged her to change her mind and agree with them. At a December 1999 court hearing to determine placement, Meyers testified to the opinion of the Treatment Team, but when pressed by the judge, she claimed that she had been pressured to change her opinion to conform with that of the other Treatment Team members. However, Meyers also testified that the children could receive appropriate treatment in their current placement. In February 2000, Meyers‘s supervisors transferred her from Ongoing Services to Intake. Meyers resigned from NHHS on May 9, 2000.
Meyers filed a complaint in the United States District Court for the District of Nebraska alleging violations of
The appellees filed a motion to dismiss, and the district court dismissed all claims against NHHS and the aрpellees in their official capacities. The case was then tried by a United States magistrate judge by agreement. The appellees filed a motion for summary judgment alleging they were entitled to qualified immunity, which was granted. However, we reversed and remanded for trial holding that disputed fact questions remained as to whether there had been an adverse employment action when Meyers‘s job duties were changed. Meyers v. Nebraska Health & Human Servs., 324 F.3d 655 (8th Cir.2003).
On remand, after Meyers presented her case-in-chief, the magistrate judge dismissed all claims against Starke and Duncan pursuant tо
II. Discussion
We review a grant of judgment as a matter of law under
A. Whether Appellees’ Actions were Motivated by Meyers‘s Speech
Meyers argues that our holding in the prior appeal determined that appellees’ actions were motivаted by her speech on a matter of public concern that outweighed NHHS‘s interests. Meyers further argues that this holding was not challenged in the first appeal and cannot be challenged in this appeal. Whether Meyers‘s speech was protected is a question of law. Lewis v. Harrison Sch. Dist. No. 1, 805 F.2d 310, 313 (8th Cir.1986). We have already held that Meyers‘s speech was protected. Meyers, 324 F.3d at 659. The magistrate judge permitted the factual issue of causation—whether appellees’ actions were motivated by Meyers‘s speech—to go to the jury. The jury deadlocked. The magistrate judge refused to grant either party‘s Rule 50(b) motion on this fact issue. The magistrate did not err.
B. Amending the Complaint
At trial, Meyers moved to amend her complaint by adding a cause of action under
C. Exclusion of Issues from the Pretrial Order
In her brief, Meyers states the next issue as “[w]hether the trial court erred in sustaining the defendant‘s objection to controverted issues no. 7 and 8 to insert the issue of whether the defendants conspired to interfere by threat, force of intimidation to keep the plaintiff from testifying on аny matter pending freely, fully and truthfully.”
D. Granting Appellees’ Motion for Judgment as a Matter of Law
Meyers contends she adduced sufficient probative evidence to have a jury determine whether the appellees violated her free speech rights. Because the record is clear that Stаrke and Duncan did not have the authority to transfer Meyers, we agree with the decision of the magistrate judge granting judgment as a matter of law in their favor.
The magistrate judge also granted Carter‘s Rule 50(b) motion. Carter, who did have the authority to reassign Meyers, argues that Meyers suffered no material job change and thus could not show an adverse employment action. While Meyers‘s title and functions changed, her salary and benefits did not. Other NHHS employees testified that Meyers was not demoted and that the child welfare responsibilities of Intake were just as important as those fulfilled by workers performing Ongoing Services or serving in other system positions.5
“In order to establish a claim for unlawful First Amendment retaliation, a public employee must show that [she] suffered an adverse employment action that was causally connected to [her] participation in a protected activity.” Duffy v. McPhillips, 276 F.3d 988, 991 (8th Cir.2002). “An adverse employment action is exhibited by a material employment disadvantage, such as a change in salary, benefits, or responsibilities.” Bradley v. Widnall, 232 F.3d 626, 632 (8th Cir.2000) (emphasis in original). “Changes in duties or working conditions that cause no materially significant disadvantage . . . are insufficient to establish the adverse conduct required to make a prima facie case.” Id. (quoting Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir.1994)).
Meyers testified that in Intake, she did not have a full workload. However, Meyers‘s testimony is uncorroboratеd. “A mere scintilla of evidence is inadequate to support a verdict[.]” Clark v. Kansas City Missouri Sch. Dist., 375 F.3d 698, 701 (8th Cir.2004) (quoting Larson v. Miller, 76 F.3d 1446, 1452 (8th Cir.1996)); see also O‘Bryan v. KTIV Television, 64 F.3d 1188, 1191 (8th Cir.1995) (uncorroborated statements are insufficient to create an issue of material fact). Meyers also testified that Intake was handled by a receptionist and a case aide. We do not find any evidence in the record for this conclusion. Meyers actually testified that the receptionist and case aide only took calls when the Intake worker was unavailable. The receptionist and case aide then turned over any information they had to the Intake PSW. The evidence clearly shows that a PSW has always worked Intake and that Anderson was the full-time Intake worker from 1998 until Meyers was reassigned to Intake.
For these reasons, we affirm the decision of the magistrate judge.
BYE, Circuit Judge, concurring in part, dissenting in part.
I fully concur in parts II.B and II.C, concur in the conclusion reached by the majority in part II.A, however respectfully dissent from most of part II.D. In regard to part II.A, I agree Vicky Meyers‘s actions were constitutionally protected, but would not rely on the dicta in Meyers v. Nebraska Health & Human Servs., 324 F.3d 655, 659 (8th Cir.2003) (Meyers I), to reach this result. In regard to part II.D, I agree the magistrate judge properly entered judgment as a matter of law in favor of defendants Starke and Duncan, who did not have the authority to transfer Meyers, but disagree as to Carter, the defеndant responsible for transferring Meyers.
Nothing has changed since our decision in Meyers I where we found “evidence of a considerable downward shift in skill level required to perform her new job responsibilities, coupled with evidence of a work load reduced to the degree supervisors had to find other ‘tasks’ to keep her busy, are sufficient to support a finding Meyers‘s reassignment was a significant and material change in her employment conditions.” Id. at 660. At trial, the jury heard Meyers testify she did not have a full workload and her job responsibilities decreased significantly. The majority dismisses this testimony as a mere scintilla of evidence, inadequate to support a jury verdict. I would not classify the plaintiff‘s sworn testimony at trial a mere scintilla of evidence. A plaintiff‘s testimony often provides ample evidence to support a jury verdict. See Webner v. Titan Distrib. Inc., 267 F.3d 828, 836 (8th Cir.2001). In discrediting Meyers‘s testimony the majority essentially usurps the jury‘s role as factfinder. United States v. Martinez, 958 F.2d 217, 218 (8th Cir.1992) (“It is the sole province of the jury to weigh the credibility of a witness.“). A significant number of jurors found hеr testimony to be compelling to the point it could not break the deadlock existing among them even after the announcement it could accept less than a unanimous verdict. I would therefore vacate the magistrate judge‘s entry of judgment as a matter of law in favor of defendant Carter and remand for a new trial.
Notes
[i]f two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in аny court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws.