Vicky Meyers v. Joyce Starke , 420 F.3d 738 ( 2005 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 04-2770
    ___________
    Vicky Meyers,                           *
    *
    Appellant,                 *
    * Appeal from the United States
    v.                               * District Court for the
    * District of Nebraska.
    Joyce Starke, Individually and in her   *
    official capacity; Kathy Carter,        *
    Individually and in her official        *
    capacity; Darren Duncan, Individually *
    and in his official capacity,           *
    *
    Appellees.                 *
    ___________
    Submitted: June 23, 2005
    Filed: August 23, 2005
    ___________
    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 Federal Rule of Civil Procedure 50 in favor of
    Nebraska Health and Human Services (NHHS), Joyce Starke, Kathy Carter, and
    1
    The Honorable Thomas D. Thalken, United States Magistrate Judge for the
    District of Nebraska.
    Darren Duncan (appellees). For reversal, Meyers argues that the magistrate judge
    erred: (1) in considering whether Meyers's speech motivated appellees' action; (2) in
    ruling that amending the complaint to include conspiracy claims was futile under the
    intracorporate conspiracy doctrine; (3) in excluding issues relevant only to Meyers's
    proposed amended complaint from the pretrial order; (4) in granting appellees' motion
    for judgment as a matter of law; and (5) in overruling Meyers's Rule 50 motion for
    judgment as a matter of law and motion for a new trial. We affirm.
    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 at 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 Gering 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,
    -2-
    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 42 U.S.C. § 1983 and her First Amendment right to
    free speech. Meyers sued NHHS, and also sued Starke, Duncan, and Carter in both
    their official and individual capacities. Meyers alleged she had been unlawfully
    demoted for exercising her right to comment on a matter of public concern– children's
    welfare. She sought damages for lost wages and benefits, injury to reputation, loss of
    enjoyment of life, inconvenience, and embarrassment.
    The appellees filed a motion to dismiss, and the district court dismissed all
    claims against NHHS and the appellees in their official capacities. The case was then
    tried by a United States magistrate judge by agreement. The apellees 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).
    Although we reversed the magistrate judge, we agreed that as a matter of law,
    speech regarding the care of children is a matter of public concern. Bowman v.
    Pulaski County Special Sch. Dist., 
    723 F.2d 640
    , 644 (8th Cir. 1983). The appellees
    neither challenged this holding, nor did they offer evidence that NHHS's interest in
    promoting workplace efficiency outweighed Meyers's right to speak on a public issue,
    and the magistrate judge failed to find that it did.2 
    Meyers, 324 F.3d at 659
    .
    2
    Even if Meyers spoke out on a matter of public concern, her interests are
    outweighed "if the [appellees] show that [the] speech so severely damaged office
    harmony and working relationships that [appellees'] interest in promoting an effective
    workplace outweighs [Meyers's] First Amendment rights." Hyland v. Wonder, 972
    -3-
    On remand, after Meyers presented her case-in-chief, the magistrate judge
    dismissed all claims against Starke and Duncan pursuant to Fed. R. Civ. P. 50. When
    the remaining parties rested their respective cases, each moved for judgment as a
    matter of law under Rule 50. The magistrate judge took the matter under advisement
    and submitted the case to the jury. The jury deadlocked. Meyers renewed her motion
    for judgment as a matter of law and moved for a new trial. Carter also renewed her
    motion for judgment as a matter of law. The magistrate judge granted judgment as a
    matter of law in favor of Carter, determining that no reasonable jury could conclude
    that Meyers had suffered an adverse employment action. Meyers then instituted the
    instant appeal.
    II. Discussion
    We review a grant of judgment as a matter of law under Fed. R. Civ. P. 50 de
    novo. Walsh v. Nat'l Computer Sys., Inc., 
    332 F.3d 1150
    , 1157 (8th Cir. 2003) (citing
    Kipp v. Missouri Highway & Transp. Comm'n, 
    280 F.3d 893
    , 896 (8th Cir. 2002)).
    "[We draw] 'all reasonable inferences in favor of the nonmoving party, and [do] not
    make credibility determinations or weigh the evidence." 
    Kipp, 280 F.3d at 896
    . We
    "assume that the jury resolved all conflicts of evidence in favor of the [nonmoving]
    party, assume as true all facts which the prevailing party's evidence tended to prove,
    . . . and deny the motion, if in light of the foregoing, reasonable jurors could differ as
    to the conclusion that could be drawn from the evidence." Minneapolis Cmty. Dev.
    Agency v. Lake Calhoun Assoc., 
    928 F.2d 299
    , 301 (8th Cir. 1991).
    A. Whether Appellees' Actions were Motivated by Meyers's Speech
    Meyers argues that our holding in the prior appeal determined that appellees'
    actions were motivated 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
    F.2d 1129, 1139 (9th Cir. 1992), cert. denied, 
    113 S. Ct. 2337
    (1993). The employer
    bears the burden of proving that the balance of interests weighs in its favor. Johnson
    v. Multnomah County, 
    48 F.3d 420
    , 426 (9th Cir. 1995).
    -4-
    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 42 U.S.C. § 1985(2),3 alleging interference with giving court testimony as a
    witness. The magistrate judge denied the motion. Meyers argues that the magistrate
    judge erred because the factual allegations of the complaint did not change and
    always stated a cause of action under 42 U.S.C. § 1985(2). We disagree.
    3
    42 U.S.C. § 1985 (2) is violated
    [i]f two or more persons in any State or Territory conspire to deter, by
    force, intimidation, or threat, any party or witness in any 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.
    -5-
    Federal Rule of Civil Procedure 15 provides that a party may amend by leave
    of court which shall be freely given when justice requires. Justice does not require it
    in this case. Here any conspiracy claim under 42 U.S.C. § 1985(2) is barred under the
    intracorporate conspiracy doctrine, which allows corporate agents acting within the
    scope of their employment to be shielded from constituting a conspiracy under §
    1985. Cross v. General Motors Corp., 
    721 F.2d 1152
    , 1156 (8th Cir. 1983). We have
    extended the intracorporate conspiracy doctrine to governmental entities. See Runs
    After v. United States, 
    766 F.2d 347
    , 354 (8th Cir. 1985); Richmond v. Bd. of Regents,
    
    957 F.2d 595
    , 598 (8th Cir. 1992). Because appellees are employees of NHHS, they
    are protected by the intracorporate conspiracy doctrine. The magistrate judge did not
    err in denying the motion to amend.
    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 any matter pending freely, fully and
    truthfully." Federal Rule of Appellate Procedure 28(a)(5) requires an appellant to
    include in its brief a statement of the issues presented for review. To be reviewable,
    an issue must be presented in the brief with some specificity. Failure to do so can
    result in waiver. Sweet v. Delo, 
    125 F.3d 1144
    , 1159 (8th Cir. 1997). Meyers's brief
    focused exclusively on one already addressed—whether Meyers spoke on a matter
    of public concern. Consequently, we consider this issue to be waived.4
    4
    Similarly, Meyers failed to discuss the overruling of her Rule 50 motion and
    her motion for new trial. Instead, Meyers argues about jury instructions. Aside from
    failing to comply with Fed. R. App. P. 28(a)(5), we find that the evidence does not
    support a grant of judgment as a matter of law in Meyers's favor.
    -6-
    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 Starke 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
    5
    Meyers's coworkers testified regarding the Intake position. Lisa Bell, who had
    been a PSW for thirteen years, described Intake as the "cornerstone" of child
    protective case work. Bell testified that she did not consider Intake a lesser position
    because it was the "foundation of everything." Bell also testified that coworkers'
    feelings toward Meyers did not change after the reassignment. John Zach testified
    that he had been a PSW for eighteen years and had performed all three child
    protection functions. Zach indicated that Intake was a critical phase and was not
    demeaning. Zach also did not think less of Meyers after her reassignment. Former
    Intake PSW, Pat Anderson, testified that Intake was important and not demeaning.
    She stated that no one "looked down on" Meyers or thought less of her when she was
    reassigned to Intake. Kelly Case, who had been a PSW for nineteen years also
    testified. She had performed all three child protection functions. Case indicated that
    when she first began working at NHHS, supervisors also worked in Intake. Case
    stated that Intake was neither demeaning nor a lesser assignment, and no one looked
    down on Meyers after being reassigned to Intake.
    -7-
    When drawing all reasonable inferences in favor of Meyers, 
    Kipp, 280 F.3d at 896
    , we are left with the conclusion that the magistrate judge did not err in granting
    Carter's Rule 50(b) motion. The evidence, taken in the light most favorable to Meyers
    showed that Meyers's new position, an Intake PSW, receives reports of suspected
    child abuse or neglect and determines NHHS's response. An Intake PSW must have
    the skills to gather the information necessary to perform a thorough investigation. An
    Intake PSW receives seventeen weeks of specialized training. Finally, an Intake PSW
    must possess the identical educational background as an ongoing services worker—a
    bachelor's degree in the field of human services.
    "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 uncorroborated. "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.
    -8-
    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 defendant 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
    -9-
    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 her 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.
    ______________________________
    -10-
    

Document Info

Docket Number: 04-2770

Citation Numbers: 420 F.3d 738

Filed Date: 8/23/2005

Precedential Status: Precedential

Modified Date: 1/12/2023

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