Petition for Writ of Certiorari — McIntire v. Minnesota
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An the
United States Supreme Court
October Term, 1990
MARCIE McINTIRE,
Petitioner,
Vv.
THE STATE OF MINNESOTA,
MINNESOTA HOUSING FINANCE AGENCY;
JAMES SOLEM, Individually and in his official
capacity as its EXECUTIVE , DIRECTOR;
HENRY WESLEY, Individually and in his official
capacities as its PERSONNEL DIRECTOR;
MICHAEL HALEY, Individually and in his official
capacities as DIRECTOR OF HOME MORTGAGE
PROGRAM,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE MINNESOTA COURT OF APPEALS
STEPHEN CHARLES FIEBIGER
Stephen C. Fiebiger &
Associates, Chartered
1910 First Bank Place West
120 South Sixth Street
Minneapolis, Minnesota 55402
Telephone No.: (612) 339-7566
Attorney for Petitioner
1990 — Bachman Legal Printing, 835 Second Ave. So., Mpis., MN 55402 — (612) 339-9518 &
FAX 612-337-8053
QUESTIONS PRESENTED
Can a state court weigh factual issues on summary
judgment, in conflict with federal appellate authority,
under the Pickering balancing test for qualified
immunity on claims for violation of a public employee's
free speech rights under 42 U.S.C. Section 1983 and the
First and Fourteenth Amendments of the United
States Constitution?
Does a probationary public employee have a protectible
right to continued employment free from termination
based upon speech under 42 U.S.C. Section 1983 and
the Fourteenth Amendment of the United States
Constitution?
TABLE OF CONTENTS
oO. cap dinsccdanisvessssees i
Ni a apa spavdidabewaecassavel iii
ee ho hil yp id uatuencebevuwan 2
ESE 2
Constitutional Provisions and Statutes Involved......... 2
ccc ce eens seceeassccenenecee 3
Reasons for Granting the Petition ......................... 7
I. Certiorari Should Be Granted in Order to Have
Uniform Application of 42 U.S.C. Section 1983 and
the First and Fourteenth Amendments of the United
States Constitution for the Pickering Balancing
Test in State and Federal Courts. ................ 7
II. Certiorari Should Be Granted to Preserve Due Process
Rights of Probationary Public Employees Deprived
of Employment Opportunities Because of
I, Wye ca uc a unc s ba acscden cacasvens 15
sec cccccnnscenhevesctasvatvashes 17
ee ire is vs kc uKeads ce bas eceees A-i
TABLE OF AUTHORITIES
Allen v. Scribner, 812 F. 2d 426
OS SIRE ia ah 9,11,13
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
SERS RE er ee 12
Atcherson vu. Siebenmann, 605 F. 2d 1058
ETRE IEC 05 13
Board of Regents v. Roth, 408 U.S. 564 (1972)........... 16
Bowman v. Pulaski County School District,
Tao F. Ba G00 Ge Cir. 1688) ..........0...0.0..08... ce
Buel v. VanNess, 21 U.S. 312, 8 Wheat 312 (1823) ...... 14
Connick v. Myers, 461 U.S. 138 (1983) ............. 9,11, 12
Finch v. Wemlinger, 361 N.W. 2d 865 (Minn. 1985) ..... 12
Givhan v. Western Line Consolidated School District,
I oo Bae Wc ud ceeds vase cdio tes dane: 12
Greenberg v. Kmetko, 840 F. 2d 457 (7th Cir. 1987) ..... 13
Harlow v. Fitzgerald, 457 U.S. 800 (1982).............. 6, 11
Kim v. Coppin State Coilege, 662 F. 2d 1055
ccc caccn i gknukehewesansaeesn 9,10, 13
Lewis v. Harrison School District #1, 805 F. 2d 310,
313 (8th Cir. 1986); cert. denied, 482 U.S.
I eee ig a awe paves 8,9, 10, 11, 13, 14
McGee V. South Pemiscot School District R-V,
712 F. 2d 339 (8th Cir. 1983) ................. 6, 9, 13, 14
McGill v. Board of Education of Pekin Elementary School,
tm re . 10
McIntire v. State of Minnesota, et al, 419 N.W. 2d
799 (Minn. App. 1988), pet. for rev. denied,
(Minn. Apr. 20, 1988)........ 6, 7, 8, 9, 10, 11, 12, 14, 15
Missouri Pacific Railroad Co., v. Elmore and Stahl,
ee Ge PI 2 ix 6 ccs cc caecduweerceswsarrans 14
Mt. Healthy City School District Board of Education
v. Doyle, 429 US. 273 (1977) ......... 0... ccc cece 12
Murray v. Joe Gerrick and Co., 291 U.S. 315 (1934)..... 14
NAACP v. Claiborne Hardware Co.,
EE 13
Perry v. Sindermann, 408 U.S. 593 (1972) ....... 13, 15, 16
Pickering v. Board of Education, 391 U.S.
SS Reet ae 6, 7, 10, 11, 13, 14, 15, 16
Roberts v. VanBuren Public Schools, 773 F. 2d 949
iF Oe a ncuhvwacete 9,10
Scheider v. City of Atlanta, 628 F. 2d 915
IE LISTS A a 4
United States v. Oregon, 366 U.S. 643 (1961) ............ 14
Wheeler v. Mental Health and Mental Retardation
Authority, 752 F. 2d 1063, 1069 (5th Cir. 1985)
GU Ce eee rence chock cs ccdansccscanes 4
Wood v. Georgia, 370 U.S. 375 (1962) ........000000000... 13
iv
In the
United States Supreme Court
October Term, 1990
MARCIE McINTIRE,
Petitioner,
Vv.
THE STATE OF MINNESOTA,
MINNESOTA HOUSING FINANCE AGENCY;
JAMES SOLEM, Individually and in his official
capacity as its EXECUTIVE DIRECTOR;
HENRY WESLEY, Individually and in his official
capacities as its PERSONNEL DIRECTOR;
MICHAEL HALEY, Individually and in his official
capacities as DIRECTOR OF HOME MORTGAGE
PROGRAM,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI
TO THE MINNESOTA COURT OF APPEALS
PETITION FOR WRIT OF
CERTIORARI
Petitioner Marcie McIntire respectfully prays this Court
to issue a Writ of Certiorari to review the opinion of the
Court of Appeals of Minnesota dated August 7, 1990.
OPINIONS BELOW
The opinion of the Court of Appeals of Minnesota is
reported at 458 N.W. 2d 714 and is reprinted herein as
Appendix A. The opinion of the Court of Appeals in
McIntire I is reported at 419 N.W. 2d 799, and is
reprinted herein as Appendix B. The order and decision
of the State Trial Court is unreported and attached
hereto as Appendix C.
JURISDICTION
The judgment of the Court of Appeals of Minnesota
was entered on August 7, 1990. A Petition for Review
filed by Plaintiffs attorney was denied on September
28, 1990 by the Minnesota Supreme Court. See Appendix
D. This Court’s jurisdiction is invoked under 28 U.S.C.
Section 1257(a).
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED
The following Constutional provisions and Statutes are
quoted in Appendix E:
42 U.S.C. Section 1983, civil action for deprivation
of rights.
First Amendment of the United States Constitution.
Fourteenth Amendment of the United States
Constitution.
ee
STATEMENT OF THE CASE
This case presents important questions addressing a
state court’s conflicting interpretation of 42 U.S.C.
Section 1983 and the First and Fourteenth Amendments
of the United States Constitution from existing federal
appellate authority on individual Defendants’ claims for
qualified immunity. Plaintiff requests the Supreme Court
grant Certiorari in order that the federal laws governing
42 U.S.C. Section 1983 and the First and Fourteenth
Amendments for her claims for violation of free speech
rights receive the same interpretation and treatment in
state court as they would in federal court.
Marcie McIntire, an American Indian, was employed
as the Indian Housing Coordinator at the Minnesota
Housing Finance Agency (MHFA) from July 2, 1984,
until her discharge for “willful misconduct” on February
15, 1985. As the Indian Housing Coordinator, Ms.
McIntire was responsible for overseeing certain programs
designed to benefit American Indians in Minnesota in
terms of housing and financing. Ms. MclIntire’s
immediate supervisor was Michael Haley, the Director
of the Home Mortgage Division, who reported to the
Executive Director, James So!em. The Personnel Director
at the time was Henry Wesiey.
Marcie McIntire was hired as an entry level Housing
Development Officer on an intitial six month
probationary period scheduled to conclude January 2,
1985. At the end of her probationary period, she would
be certified as a permanent employee with the State of
Minnesota under a collective bargaining agreement
between the State and the Minnesota Association of
Professional Employees (MAPE). Ms. McIntire’s position
required her to work with the St. Paul Inter-Tribal
Housing Board (SPITHB) that was experiencing
problems of fiscal mismanagement. Ms. McIntire saw
operational problems within the SPITHB and recognized
activity breaching the contract with the MHFA. The
SPITHB received contractual funding allocated by the
3
a
Minnesota State Legislature for particular Indian
housing programs. Some of the problems of the SPITHB
observed by Ms. McIntire included unauthorized salary
advances to staff, improper housing loans by the
SPITHB to members of its own Board of Directors, an
improper $27,000 loan by the SPITHB to one of iis
Directors for construction of a personal driveway, and
numerous others. At one point, the SPITHB misdirected
part of $425,000 allocated for a segregated account
designated specifically for Section 8 housing funds.
These problems existed during Ms. MclIntire’s tenure with
the Agency and were not resolved.
Despite difficulties and mismanagement by the SPITHB,
the Agency continued to fund the organization. Michael
Haley advocated continued funding of the SPITHB to his
supervisors and to the Board of Directors of the Minnesota
Housing Finance Agency throughout the fall of 1984.
Marcie McIntire was criticized by Haley during fall of
1984 for statements she made in her position. These
included statements at certain public meetings that contra-
dicted Haley. Haley also criticized her for speaking out at
meetings of the Board of Directors of the Minnesota
Housing Finance Agency without first consulting with
him. One incident involved Ms. McIntire questioning the
use of outdated census material.
The Minnesota Legislative Auditor’s Office conducted an
examination of SPITHB improprieties during fall of 1984.
The investigation utilized information provided by the
MHFA itself in addressing improprieties. The Legislative
Auditor issued its report on the SPITHB on December 4,
1984.
When the problems inherent with the SPITHB continued
without remedy, Ms. McIntire was advised by Senate
Counsel to prepare a memorandum detailing the problems
within the SPITHB. She prepared a detailed memorandum
outlining the improprieties at the SPITHB more inclusive
than that of the Legislative Auditor. On December 4, 1984,
she finished her memorandum on the SPITHB.
On December 7, 1984, Haley retrieved several envelopes
4
ne
from the outgoing mail addressed to persons outside of the
Agency. One of these was addressed to Senate Counsel.
Inside, Ms. McIntire had included her own memorandum of
December 4, 1984 outlining repeated mismanagement by
the SPITHB. Ms. McIntire mailed her memorandum later
that day along with copies of the Legislative Auditor’s
report and placed a copy on Haley’s desk. The outgoing
memoranda were sent to six individuals outside the Agency,
including a Union Representative and members of the
Indian Community.
On January 10, 1985, Haley sent a memo to Henry Wesley
directing that Ms. MclIntire’s probationary period
be extended an additional five hundred twenty hours for
“significant errors in judgment, inability to accept criticism
or direction, and poor communication with her supervisor.”
In the memo, Haley listed various “judgment errors” that
occured during fall of 1984 that Ms. McIntire was to correct
or to discontinue. She was further required to eliminate
these “judgment errors” in order to become a certified
employee.
On January 14, 1985, Haley directed another
memorandum to Wesley discussing Ms. McIntire’s extended
probationary period. Haley and Wesley set forth additional
terms and conditions for Ms. McIntire to satisfy in order to
become certified as a permanent employee at the Agency.
The January 14, 1985 memorandum restricted Ms. McIntire
from publicly disagreeing with the Agency, engaging in
unauthorized distribution of internal and external
communications and correspondence, “inappropriate public
commentary”, and other terms. These two memos,
apparently, were in reponse to Marcie McIntire’s initial six
months and were to operate prospectively.
Ms. McIntire remained at the Agency during January,
1985 until February 15, 1985 when she received a memo
from Personnel Director Wesley terminating her for “willful
misconduct”. Haley asserted he received information, after
his two January, 1985 memoranda, that Plaintiff had, in
fact, distributed her December 4, 1984 memo within the
community. In terminating Plaintiff, Wesley attached the
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—— e's
January 10 and 14 memos to his termination memo of
February 15, 1985, and indicated Ms. McIntire had
“continued to engage in actions that these memos state that
you were not to”.
Marcie McIntire commenced an action against the
Minnesota Housing Finance Agency, Executive Director
James Solem, Home Mortgage Director Michael Haley, and
Personnel Director Henry Wesley, individually and in their
official capacities, for violation of her free speech rights
under 42 U.S.C. Section 1983 and the First and Fourteenth
Amendments and denial of due process rights under the
Fourteenth Amendment. Cross-motions for summary
judgment were denied and Defendants appealed. Upon
interlocutory appeal, the Minnesota Court of Appeals
reversed and remanded for consideration of the qualified
\ immunity question under the standard articulated in Harlow
v. Fitzgerald, 457 U.S. 800 (1982). McIntire v. State of
Minnesota, et al, 419 N.W. 2d 799 (Minn. App. 1988), pet for
rev. denied, (Minn. Apr. 20, 1988). The trial court, the
Honorable Bevrl A. Nord, granted summary judgment on
qualified immunity grounds for the individual Defendants
and the Minnesota Court of Appeals affirmed. McIntire v.
State of Minnesota, et al, 458 N.W. 2d 714 (Minn. App. 1990),
pet. for rev. denied, (Minn. Sept. 28, 1990).
At the motion for summary judgment before the trial
court, Marcie McIntire asserted that factual issues in the
Pickering balancing test were matters for the jury to
determine in accordance with McGee v. South Pemiscot
School District R-V, 712 F. 2d 339 (8th Cir. 1983). These
arguments were also asserted at the Minnesota Court of
Appeals and in her Petition for Review of the decision of the
Minnesota Court of Appeals to the Minnesota Supreme
Court. Acknowledging these issues, the Minnesota Court of
Appeals opted not to follow existing federal case law as
enunciated by the Eighth Circuit Court of Appeals in
McGee, supra, and other federal appellate courts. See
Mclntire v. State of Minnesota, et al, 458 N.W 2d at 718, n. 3.
The federal question was properly raised in the trial court,
preserved upon appeal, and is now before this Court on
Petition for Writ of Certiorari.
6
ee
REASONS FOR GRANTING
THE PETITION
I. Certiorari Should Be Granted in Order to Have Uniform
Application of 42 U.S.C. Section 1983 and the First and
Fourteenth Amendments of the United States
Constitution for the Pickering Balancing Test in State
and Federal Courts.
In granting summary judgment against Marcie McIntire
on her First Amendment free speech claim, the Minnesota
Court of Appeals granted qualified immunity to each of the
individual Defendants. McIntire v. State, 458 N.W. 2d 714.
In doing so, the Court recognized the balancing test adopted
in Pickering v. Board of Education, 391 U.S. 563 (1968).
McIntire v. State, 458 N.W. 2d at 717. The Minnesota Court
of Appeals utilized a de novo approach in application of the
Pickering balancing test.
First, the Minnesota Court of Appeals determined that
the subject matter of Ms. McIntire’s memo, breach of public
trust, was a matter of public interest. McIntire v. State, 458
N.W. 2d at 717. The statements by McIntire addressing
unauthorized, possibly fraudulent, expenditures of public
funds and discrepancies in financial records charged serious
improprieties which were a matter of public concern.
McIntire v. State, 458 N.W. 2d at 717.
The Supreme Court in Pickering did not establish a
generalized test, but determined that each case must be
evaluated upon its own facts. The Supreme Court in
Pickering, 391 U.S. 563, noted at page 569:
Because of the enormous variety of fact situations in
which critical statements by teachers and other public
employees may be sought by their superiors, against
whom the statements are directed, to furnish grounds
for dismissal, we do not deem it appropriate or feasible
to attempt to lay down a general standard against
which all such statements may be judged.
Ms. MclIntire’s speech dealt with funding abuses by the
SPITHB, the role of the Agency, and the continued
7
mismanagement of state monies without remedy. Ms.
McIntire was concerned about abuse of state money by the
SPITHB and violation of the contract between the SPITHB
and the Agency. First Amendment decisions in the public
employee firing context require application of a three step
process. Lewis v. Harrison School District #1, 805 F. 2d 310,
313.(8th Cir. 1986) (Lay, C.J.); cert. denied, 482 U.S. 905
(1987). The Eighth Circuit Court of Appeals set forth the
analysis as follows:
The first step is to determine whether the speech was
“protected” under the Constitution. Under Connick,
only speech addressing a “matter of public concern” is
protected. [Citations omitted]. Even then, Pickering
instructs the Court to balance “the interest of the
[employee], as a citizen, in commenting upon matters
of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public
services it performs through its employees.” [Citations
omitted]. To be protected, speech mush pass both the
Connick and Pickering tests. The second and third
steps involve causation. The employee must show that
the speech “was a substantial or motivating factor in
the adverse employment decision.” [Citation omitted].
Finally, the Defendant “may show that the employment
action would have been taken even in the absence of
the protected conduct.” Lewis, at 313.
The first question, whether the employee’s speech was
“protected”’, is one of law, Lewis v. Harrison School District
#1, 805 F. 2d at 313. The Minnesota Court of Appeals
determined that Ms. McIntire’s statements were a matter of
public concern. McIntire v. State, 458 N.W. 2d at 717.
Next, the Court must perform the so-called “Pickering
balance”. Lewis v. Harrison School District #1, 805 F. 2d
310, 315 (8th Cir. 1986); cert. denied, 482 U.S. 905 (1987). This
requires consideration of the following factors:
1. The need for harmony in the office or work place;
2. Whether the government’s responsibilities require a
close working relationship to exist between the Plaintiff
8
and co-workers when the speech in question has caused
or could cause the relationship to deteriorate;
The time, manner and place of the speech;
The context in which the dispute arose;
The degree of public interest in the speech;
Whether the speech impeded the employee’s ability to
perform his or her duties.
Lewis v. Harrison School District #1, 805 F. 2d 310, 315
(8th Cir. 1986); cert. denied, 482 U.S. 905 (1987); Bowman v.
Pulaski County School District, 723 F. 2d 640, 644 (8th Cir.
1983); Connick v. Myers, 461 U.S. at 149-54; Roberts v.
VanBuren Public Schools, 773 F. 2d 949, 954 (8th Cir. 1985).
In weighing the above factors, it is for the jury to decide
whether the speech created disharmony between the
employee and her supervisors in the work place. McGee v.
South Pemiscot School District R-V, 712 F. 2d 339, 342 (8th
Cir. 1983); Scheider v. City of Atlanta, 628 F. 2d 915,919 n. 4.
(5th Cir. 1980); See McIntire v. State, 458 N.W. 2d at 718, n.3.
The balancing of the Pickering factors (underlying factual
issues) is a jury function. Lewis v. Harrison School District
#1, 805 F. 2d 310, (8th Cir. 1986); cert. denied, 482 U.S. 905
(1987); Roberts v. VanBuren Public Schools, 773 F. 2d 949,
954 (8th Cir. 1985). The question of causation, in contrast to
the protected speech question, is an issue of fact to be
determined by the jury. Roberts v. VanBuren Public Schools,
773 F. 2d 949, 954 (8th Cir. 1985); Wheeler v. Mental Health
and Mental Retardation Authority, 752 F. 2d 1063, 1069 (5th
Cir. 1985) cert. denied, _. U.S. —__., 106 S.Ct. 78, 88 L.Ed.
2d 64 (1985). Accord, Kim v. Coppin State College, 662 F. 2d
1055 (4th Cir. 1981). A jury must decide the issue of
motivation. Allen v. Scribner, 812 F. 2d 426, 436 (9th Cir.
1987).
In discussing the rationale for submitting the Pickering
factors to the jury, the Fourth Circuit Court of Appeals
stated in Kim v. Coppin State College, supra, at page 1064:
It is fitting, therefore, for the jury to weigh the factors of
disruption of operations, disharmony among
co-workers or breach of a confidential working
relationship enumerated by the Court in Pickering.
n)
S Or & Go
sane iia |
These are matters of fact for which the jury is uniquely
equipped to filter out self-serving claims and apply its
judgment based upon individual experience and an
assessment of the credibility of the disputants. See e.g.,
McGill v. Board of Education of Pekin Elementary
School, 602 F. 2d 774, 776-77 (7th Cir. 1979).
The ultimate decision, however, is for the Court after the
balancing has been completed by the jury. Lewis v. Harrison
School District #1, 805 F. 2d 310, 315 (8th Cir. 1986); Roberts
v. VanBuren Public Schools, 773 F. 2d 949, 954 (8th Cir.
1985); See Kim v. Coppin State College, 662 F. 2d at 1065.
Hence, the jury determines factual issues and the Court
makes the ultimate determination whether the First
Amendment protects the expression involved after factual
findings by the jury. In the instant case, the Minnesota
Court of Appeals chose not to follow established federal
precedent in its holding and, instead, determined that the
question of whether there was office disruption or a need for
loyalty and trust could be determined by the Court without
submission to a jury. See McIntire v. State, 458 N.W. 2d 714,
718 (Minn. App. 1990), n. 3. These issues rely heavily on
credibility and truthfulness of witness testimony ordinarily
evaluated by a jury. Once the court determines speech is a
matter of public concern, the Pickering factors must be
submitted to the jury. Otherwise, Plaintiffs such as Marcie
McIntire will lose their day in state court that is now
available in federal court.
In deviating from standards set by federal appellate
authority, including the Eighth Circuit Court of Appeals,
the Minnesota Court of Appeals determined issues of
credibility in favor of individual Defendants without
submission to a jury. No evidence was submitted by
individual Defendants relative to the effect of Ms. McIntire’s
statements and the December 4, 1984 memorandum upon
other employees or the Agency itself. The state court should
not engage in speculation on issues of credibilicy
motivation, and disharmony in the work place on summary
judgment. On a motion for summary judgment, all facts
must be construed in a light most favorable to the non-
10
—
moving party. Harlow v. Fitgerald, 457 U.S. 800 (1982). The
Minnesota Court of Appeals erred in determining issues
ordinarily submitted to the jury in granting qualified
immunity for individual Defendants under the standard
enumerated in Lewis v. Harrison School District #1, 805 F.
2d 310, (8th Cir. 1986); cert. denied, 482 U.S. 905 (1987). Once
Plaintiff McIntire demonstrated that her speech touched on
matters of public concern under Connick, 461 U.S. 138,
(1983), then the factors enumerated in the Pickering
balancing test set forth above were to be submitted to the
jury. Lewis v. Harrison School District #1, 805 F. 2d 310, 315
(8th Cir. 1986); cert. denied, 482 U.S. 905 (1987). In the
instant case, the Minnesota Court of Appeals recognized
that Ms. McIntire’s speech on abuse of public funds was a
matter of public concern, which satisfied the first step under
Connick, but erred in failing to submit the remaining
factors under the Pickering balance to the jury. See McIntire
v. State, 458 N.W. 2d at 718.
In Allen v. Scribner, 812 F. 2d 426, (9th Cir. 1987) the
Ninth Circuit Court of Appeals determined that genuine
issues of material fact existed to preclude granting of
summary judgment against Plaintiff alleging violation of
his civil rights under Section 1983 and the First Amendment
of the Constitution after finding first that government
employees had a clearly established constitutional nght to
inform the public of significant mismanagement of a public
project when no substantial disruption of the project would
result. Allen v. Scribner, Supra, at 436. Certain factors of the
Pickering balance were to be decided by the jury. Allen v.
Scribner, 812 F. 2d at 436. Language by the Ninth Circuit
Court of Appeals in Allen v. Scribner at page 437 is
instructive:
The resolution of this case will depend to a great extent
on the credibility of witnesses with conflicting
statements, the motives that can be inferred from the
parties’ actions, and the relative cumulative weight of
the parties’ evidence.
The Ninth Circuit further noted in Allen v. Scribner at
ll
|
page 437:
As the Supreme Court has recently reiterated:
“credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a Judge.”
Anderson, 106 S.Ct. at 2513.
Similarly, inferences in a light most favorable to Marcie
McIntire can be drawn from the evidence. Individual
Defendants Michael Haley, James Solem, and Henry Wesley
submit no evidence that Marcie MclIntire’s statements
impeded her ability to perform her job or interfered with the
Agency’s public responsibilities. Ms. McIntire was qualified
for her position and sought to draw attention to
mismanagement of public funds by the SPITHB. The
findings by the state Court of Appeals that her public
confrontation with the Agency could only undermine her
ability to perform the duties of her job is purely speculation.
See McIntire v. State, 458 N.W. 2d at 718. Ms. McIntire was
able to perform the duties of her job after her statements and
December 4 memo, and should not be terminated by the
Agency for drawing attention to mismanagement of public
funds. Defendants submitted no evidence of Agency
problems other than Ms. MclIntire’s speaking out about the
SPITHB.
Certiorari should be granted to uphold the proposition
that the right to speak out about breach of public trust
without retaliation was clearly established in 1985. The
Minnesota Court of Appeals erred in concluding case law
had not demonstrated the violated right had been clearly
established in 1985. The Court of Appeals referred only to
the state court decision of Finch v. Wemlinger, 361 N.W. 2d
865 (Minn. 1985), for this holding. See McIntire v. State, 458
N.W. 2d at 718. Under existing federal law, Marcie McIntire
had a clearly established constitutional right to speak
about mismanagment of public funds without retaliation.
See Connick v. Myers, 461 U.S. 138 (1983); Mt. Healthy City
School District Board oj Education v. Doyle, 429 U.S. 273
(1977); Givhan v. Westerr: Line Consolidated School District.
12
Re
439 U.S. 410 (1979). Such speech occupies the “highest rung
of the heirarchy of First Amendment values”. NAACP V.
Claiborne Hardware Co., 458 U.S. 886, 913 (1982).
Misappropriation of public funds represents a matter of
compelling public concern. Atcherson v. Siebenmann, 605
F. 2d 1058, 1063 (8th Cir. 1979).
The First Amendment protects parties in the free
publication of matters of public concern and secures their
right to a free discussion of public events and public
measures. Wood v. Georgia, 370 U.S. 375 (1962). The First
Amendment enables every citizen at any time to bring the
government and any person in authority to the bar of public
opinion by any just criticism upon their conduct in the
exercise of that authority. Wood v. Georgia, 370 US. at 392.
The granting of a summary judgment against a non-
tenured state [employee] without a full exploration of the
[ernployee’s] claim that his .. . contract was not renewed on
the constitutionally impermissible basis of reprisal because
of the [employee’s] exercise of constitutionality protected
rights, including the right to free speech, is improper. Perry
v. Sindermann, 408 U.S. 593 (1972). The right to speak out
on matters of public concern involving breach of public
trust was clearly established in 1985 at the time of Marcie
MclIntire’s discharge from the Minnesota Housing Finance
Agency. Plaintiff asks the Supreme Court to grant Certioran
to correct the interpretation of the state court based solely
on state law.
The Minnesota Court of Appeals’ ruling conflicts with
existing precedent in the federal circuit Courts of Appeals
that require the Pickering balancing factors to be submitted
to the jury rather than for the Court to determine. See
McGee v. South Pemiscot School District R-V, 712 F. 2d 339
(8th Cir. 1983); Lewis v. Harrison School District #1, 805 F.
2d 310 (8th Cir. 1986); cert. denied 482 U.S. 905 (1987); Kim v.
Coppin State College, 662 F. 2d 1056 (4th Cir. 1981); Allen v.
Scribner, 812 F. 2d 426 (9th Cir. 1987); see also Greenberg v.
Kmetko, 840 F. 2d 467 (7th Cir. 1988) (en banc).
The conflict with existing federal court appellate precedent
necessitates review by the United States Supreme Court.
13
The state court opted against following federal precedent in
determining that the Pickering factors need not be submitted
to the jury. See McIntire v. State, 458 N.W. 2d at 718.
Certiorari should be granted when a State Court opinion on
a federal question is in conflict with decisions of federal
Courts of Appeals. Missouri Pacific Railroad Co. v. Elmore
and Stahl, 377 U.S. 134 (1964). The Supreme Court should
grant certiorari when confronted with an important
question of federal statutory construction and an alleged
conflict between federal courts and state courts of final
jurisdiction. United States v. Oregon, 366 U.S. 643 (1961);
see Murray v. Joe Gerrick and Co., 291 W.S. 315 (1934)
(federal statute misconstrued by state court). The Supreme
Court of the United States has jurisdiction of a case in
which the decision of a state court was against a right
claimed under a statute of the United States. Buel v. Van-
Ness, 21 U.S. 312, 8 Wheat 312 (1823). In the instant case,
Plaintiff asserts a claimed violation of 42 U.S.C. Section
1983 and rights secured by the First Amendment to the
United States Constitution as well as the Fourteenth
Amendment. This Court has jurisdiction over the claims
brought under federal constitutional and statutory
provisions and should grant Certiorari to review the decision
of the Minnesota Court of Appeals in conflict with existing
federal caselaw. In particular, the Minnesota Court of
Appeals decision conflicts with existing precendential case
law with the Eighth Circuit of Appeals. See McGee v. South
Pemiscot School District R-V, 712 F. 2d 339 (8th Cir. 1985);
Lewis v. Harrison School District #1, 805 F. 2d 310, (8th Cir.
1986); cert. denied, 42 U.S. 905 (1987). Individuals should not
encounter a different interpretation of 42 U.S.C. Section
1983 and the First and Fourteenth Amendments of the
United States Constitution in state courts than in federal
courts. Certiorari should be granted in this case to protect
equality in interpreting these federal laws in state and
federal courts.
The submission of the Pickering balance factors to the
jury has not been decided by the United States Supreme
Court and a decision to settle this issue will guide both state
14
|
and federal Courts. This important decision will affect all
cases involving claims for violations of First Amendment
rights under 42 U.S.C. Section 1983 involving the Pickering
balance. While each case may differ factually, the steps for
applying Pickering should be the same in state and federal
court. In the present case, the process for application of the
Pickering balance is different in Minnesota state courts
than in federal courts under existing case law discussed
above. Public employees should not face different standards
under the Pickering balancing test because of their choice of
forum, whether it be state or federal court. Accordingly, this
Court should grant Certiorari to resolve the conflict that
exists.
II. Certioari Should Be Granted to Preserve Due Process
Rights of Probationary Public Employees Deprived of
Employment Opportunities Because of Their Speech.
Certiorari should be granted to safeguard due process
rights of probationary public employees toemployment and
opportunity for continued employment without discharge
because of their speech. Probationary public employees will
face extreme prejudice if the state can 1) terminate
employment for speech that is not subject to a jury’s
evaluation on the Pickering balancing factors; and 2)
simultaneously avoid procedural safeguards afforded to
certified employees.
The Court of Appeals held that Ms. McIntire failed to
demonstrate a protectible property interest in continued
employment while on probationary status. McIntire v.
State, 458 N.W. 2d at 718. Although Plaintiff was a
probationary employee at the time of her discharge, lack of
a contractural or tenure right to employment does not aefeat
a claim that the non-renewal of such employment violates
one’s rights under the First and Fourteenth Amendment.
Perry v. Sindermann, 408 U.S. 593, 596 (1972). The
government may not deny a benefit to a person on a basis
that infringes his constitutionally protected interest —
especially his interest in freedom of speech. Perry v.
Sindermann, 408 U.S at 597. Marcie McIntire was
15
discharged from her position as Indian Housing
Cooridinator because of her speech and statements made in
her December 4, 1984 memorandum. Indeed, her
probationary status was extended in January, 1985 for an
additional ninety days to retain her probationary status.
Because of her continued probationary status, Marcie
McIntire was not entitled to certain arbitration and
procedural benefits available under the collective bargaining
agreement. To be deprived not only of present government
employment but of future opportunities for it is no small
injury. Board of Regents v. Roth, 408 U.S. 564, 574 (1972). A
state, in regulating eligibility for a type of professional
employment, cannot foreclose a range of opportunities in a
manner than contravenes due process. Board of Regents v.
Roth, 408 U.S. at 574. Ms. McIntire would have received
arbitration rights as well as certification as a permanent
employee but for Defendants’ non-certification in January,
1985 and subsequent termination in retalitation for her
speech. Public employees are not required to be certified to
retain due process rights to employment when termination
is based upon protected speech. Perry v. Sindermann, 408
U.S. 593 (1972); Board of Regents v. Roth, 408 U.S. 564
(1962).
Certiorari should be granted in order to preserve the
above claims for deprivation of due process in state court
proceedings when they hinge upon free speech rights
dismissed by the state court without submitting Pickering
factors to the jury. When interests as significant as one’s
employment and livelihood are at stake, state courts must
apply federal free speech standards for qualified immunity.
In this case, the state Court of Appeals strayed from
existing federal precedent on the Pickering balance that not
only affected Plaintiff's First Amendment claim but also
her Fourteenth Amendment due process claim. A decision
by the Supreme Court to set a clear course that state and
federal courts must take in Pickering qualified immunity
cases is necessary.
16
1
CONCLUSION
For all of the above reasons, Petitioner Marcie McIntire
respectfully requests that the Supreme Court grant her
Petition for Writ of Certiorari.
Respectfully Submitted,
STEPHEN CHARLES FIEBIGER
Stephen C. Fiebiger &
Associates, Chartered
1910 First Bank Place West
120 South Sixth Street
Minneapolis, Minnesota 55402
Telephone No.: (612) 339-7566
Attorney for Petitioner,
Marcie McIntire
2
INDEX TO APPENDIX
McIntire v. State of Minnesota, et al,
458 N.W. 2d 714 (Minn. App. 1990) (Opinion) .. A-1
McIntire v. State of Minnesota, et al,
419 N.W. 2d 799 (Minn. App. 1988), (Opinion)...... B-1
McIntire v. State of Minnesota, et al,
No. MC 85-19993, slip op. (Hennepin County Dist. Ct.
1989)
(Order and Opinion) ... econ ees | C-1
McIntire v. State of Minnesota, et al,
No. C6-89-2265 (Minn. Sept. 28, 1990)
(Order Denying Review)............ rere D-1
Statutory and Constitutional! Quotations. ere |
———
Marcie McINTIRE, Appellant.
Vv.
The STATE of Minnesota, Minnesota Housing Finance
Agency, James Solem, Individually and in his Official
Capacities as its Executive Director; Henry Wesley,
Individually and in his Official Capacities as Director
of Home Mortgage Program, Respondents.
No. C6-89-2265
Court of Appeals of Minnesota
Aug. 7, 1990
Review Denied Sept. 28, 1990.
Dishcarged probationary state agency employee brought
action against agency personnel. On remand, 419 N.W.2d
799, the District Court, Hennepin County, Beryl A. Nord, J.,
granted summary judgment for defendants, and appeal
was taken. The Court of Appeals, Lansing J., held that (1)
agency personnel had qualified immunity from § 1983
liability; (2) employee was not deprived of due process or
liberty interest; and (3) agency personnel did not defame
employee by placing reason for discharge in her personnel
file.
Affirmed.
1. Appeal and Error 762
Errors not raised in appeal brief were waived and could
not be revived by addressing them in reply brief.
2. Constitutional Law 90.1(7.2)
Public employee’s memorandum addressing
unauthorized, possibly fraudulent, expenditures of public
funds and discrepencies in financial records, irrespective of
accuracy of statements, constituted matter or public interest
subject to First Amendment protection. U.S.C.A.
Const.Amend. 1.
A-1
3. Civil Rights 214(1)
Constitutional Law 90.1(7.2)
Supervisors did not violate clearly established First
Amendment rights of agency’s spokesperson by discharging
her for issuing memorandum giving her version of issues
raised in legislative auditor’s report, and thus were entitled
to qualified immunity from § 1983 liability to spokesperson.
U.S.C.A. Const.Amend. 1; 42 U.S.C.A. § 1983.
4. Constitutional Law 277(2)
Officers and Public Employees 66
Probationary public employee had no protectible property
interest in continued employment, and thus was not deprived
of due process when dismissed. U.S.C.A. Const.Amends. 5,
14.
5. Constitutional Law 278.4(3)
Officers and Public Employees 66
Public employee discharged for willful misconduct was
not deprived of any liberty interest absent showing that any
employment opportunities had been foreclosed by discharge.
U.S.C.A. Cons.Amends. 5, 14.
6. Civil Rights 144
Terminated public employee was not discriminated
against because of her race as American Indian where it
was undisputed that she was replaced by American Indian.
7. Civil Rights 118
Statute prohibiting discrimination in making and
enforcement of contracts does not reach discriminatory
working conditions. 42 U.S.C.A. § 1981.
8. Libel and Slander 54
State officials were not liable to terminated employee for
defamation, based upon their placement of reasons for
discharge in agency’s personnel file, absent showing that
reasons given were not truthful.
9. Libel and Slander 39
Agency heads were absolutely immune from liability to
terminated employee for defamation, based upon their
A-2
|
placement of reasons for employee’s discharge in her
personnel file, in that heads were required by law to disclose
reasons for discharge. M.S.A. §§ 43A.33, subd. 3, 268.10,
subd. 1, 363.06, subd. 1.
10. Labor Relations 777
State agency did not breach collective bargaining
agreement with terminated employee absent evidence that
grievance procedures contemplated by agreement were not
provided.
11.States 53
Discharge of probationry state agency employee, allegedly
for insubordination and misconduct, did not contravene
clear mandate of public policy.
Syllabus by the Court
1. In action seeking damages for alleged violation of free
speech rights under 42 U.S.C. § 1983, the trial court correctly
determined that agency’s executive director, personnel
director, and supervisor had a qualified immunity from
liability for conduct which did not violate clearly established
constitutional nghts.
2. Claims alleging liberty and due process violations
under 42 U.S.C. § 1983 were properly dismissed because
claimant failed to show a protectible property interest in
continued employment or a violation of liberty interest that
could withstand summary judgment.
3. Absence of evidence of discrimination forecloses federal
and state discrimination claims.
4. On the remaining state law claims of wrongful
discharge, defamation and breach of contract, trial court
properly granted summary judgment as a matter of law.
Stephen C. Fiebiger, Minneapolis, for appellant.
Hubert H. Humphrey, III, Atty. Gen., Sara H. Jones, Sp.
Asst. Atty. Gen., St. Paul, for respondents.
A-3
Considered and decided by LANSING, P.J., and
SCHUMACHER and SHORT, JJ.
OPINION
LANSING, Judge.
Marcie McIntire seeks damages under 42 U.S.C. § for
alleged violations of her civil rights and liberties and for
various state law claims arising from discharge from her
employment with the Minnesota Housing Finance Agency.
Three of the defendants, all government officials,
unsuccessfully moved for summary judgment claiming a
qualified immunity from liability on the free speech
allegations. On appeal from the denial of their motion we
reversed and remanded, directing the trial court to reconsider
its decision in light of Harlow v. Fitzgerald, 457 U.S. 800,
102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). See McIntire v. State,
419 N.W.2d 799 (Minn.App. 1988), pet. for rev. denied, (Minn.
Apr. 20, 1988) (“MeJIntire I’).
On remand, the trial court in two successive rulings
granted summary judgment against McIntire on ali claims.
McIntire now appeals the adverse judgment on the alleged
violations of free speech, liberty, and due process and on her
claims of discrimination, defamation, breach of contract
and wrongful discharge.
FACTS
Marcie McIntire was employed from July 1984 to
February, 1985, as the Indian Housing Coordinator for the
home mortgage division of the Minnesota Housing Finance
Agency. Her duties included overseeing the administration
of funds to several Indian housing programs and working
with the administrators of those programs and the Indian
communities which they serve. MclIntire’s supervisor,
Michael Haley, had ultimate responsibility for approving
program budgets.
Prior to MclIntire’s hiring, the agency had begun an
investigation of one of the programs, the St. Paul Intertribal
Housing Board. When McIntire was hired she was informed
of the reports that the board had misused agency funds by
A-4
making unauthorized loans and salary increases and that
measures were underway to correct any misappropriations.
Two months into the position McIntire made several
public statements which her supervisors viewed as
inappropriate. At a tribal meeting she indicated that the
state auditor had a conflict of interest in auditing one of the
Indian programs. At a public meeting with the Urban
Indian Advisory Council, McIntire implied that board
members were sophisticated embezzlers. McIntire also
contradicted her supervisor at a Housing Finance Agency
board meeting.
Six months after McIntire was hired, Haley intercepted
an outgoing en’elope addressed to “Senate Council” and
discovered a nine-page memorandum addressed to him
from McIntire. Although the memorandum was dated three
days earlier, Haley had not seen it. The memo outlined in
detail how expenditures by the board had exceeded their
approval budget and stated that McIntire opposed continued
funding to the board.
Haley directed McIntire not to distribute the memo.
Despite Haley’s order and without informing him of her
action, McIntire mailed copies of the memo to six individuals
outside the agency, including a union representative and
members of the Indian community.
‘ Because of MclIntire’s public statements, but without
knowledge of her distributing the memo, the agency witheld
certification of McIntire’s permanent employment and
extended her probationary period. The agency notified
McIntire by written memorandum how her conduct should
be corrected in order to gain permanent employment.
Haley received calls from members of the Indian
community who told him that McIntire’s memo had been
‘widely distributed.” The agency concluded that MclIntire’s
actions were insubordinate and that the working
relationship had completely broken down and terminated
MclIntire’s employment.
After exhausting grievance procedures under her
collective bargaining agreement, McIntire brought this
action against the State of Minnesota, the Housing Finance
A-5
aii
eee acieeieeanennils
Agency, agency executive director James Solem, agency
personnel director Henry Wesley and Haley.'
ISSUES
1. Does the qualified immunity doctrine apply to the
conduct of individual government officials?
2. Was McIntire deprived of property or liberty without
due process of law in violation of the fourteenth amendment?
3. Is there any evidence to support the claims of
discrimination?
4. Are there material issues of fact on the remaining state
law claims of defamation, breach of contract and discharge
in violation of public policy?
ANALYSIS
I.
First Amendment Claims
[1] The Federal standard of qualified immunity applies
in actions under 42 U.S.C. § 1983 brought in Minnesota
courts. Finch v. Wemlinger, 310 N.W.2d 66, 70 (Minn.1981).
Under this doctrine, government officials are not liable for
civil damages if “their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. at 818, 102 S.Ct. at 2738. McIntire
contends that Solem, Wesley and Haley violated her clearly
established first amendment rights when McIntire was
discharged in 1985.2 This is a question of law, although it
obviously turns on factual predicates. McIntire I, 419
N.W.2d at 802.
‘These facts are largely taken from McIntire I, 419 N.W.2d at 800-801.
?In her appeal brief, McIntire did not raise or argue her free speech and
due process claims against the State of Minnesota and the Housing
Finance Agency. Although these claims appear unfounded (see Will v.
Michigan Dept. of State Police, US. , 109 S.Ct. 2304,
2312, 105 L.Ed.2d 45 (1989), holding eleventh amendment bars § 1983
action against a state and its departments), they have been waived
and cannot be revived by addressing them in the reply brief. See
Balder v. Haley, 399 N.W.2d 77, 80 (Minn.1987), Minn.R.Civ.App.P.
12802, subd. 3 (1990).
A-6
More than twenty years ago, the Supreme Court ruled
that public employees do not abandon their constitutionally
protected freedom of speech wher. they enter the work place.
Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct.
1731, 1734, 20 L.Ed.2d 811 (1968). Countering this right, the
Court recognized that public employers would lose their
ability to function effectively if they could not control
employee expression to some degree. To mediate these
competing rights Pickering requires the use of a balancing
test. Id.
The threshold question on the employee’s side of the
balance is whether the employee’s statements may be
“fairly characterized as constituting speech on a matter of
public concern.” Rankin v. McPherson, 483 U.S. 378, 107
S.Ct. 2891, 2897, 97 L.Ed.2d 315 (1987) (citing Connick v.
Myers, 461 U.S. 138, 146, 103S.Ct. 1684, 1689, 75 L.Ed.2d 708
(1983)). This analysis includes an examination of the
content, form and context of the statements. Connick, 461
U.S. at 147-48, 103 S.Ct. at 1690.
[2] McIntire’s memorandum addressed the unauthorized,
possibly fraudulent, expenditures of public funds and
discrepancies in financial records. Irrespective of the
accuracy of the statements, the subject matter, breach of
public trust, is a matter of public interest. See Roth v.
Veteran’s Administration, 856 F.2d 1401, 1406 (9th Cir.1988);
Czurlanis v. Albanese, 721 F.2d 98, 104 (3d Cir.1983). That a
legislative audit raising similar concerns was issued just
prior to the distribution of McIntire’s memo substantiates
the public interest.
We do not overlook that McIntire has a personal stake in
drafting the memo and that this motivation detracts from
the first amendment implications. See Connick, 461 U.S. at
147-48, 103 S.Ct. at 1690. McIntire had confided to a union
official her fears of being held liable for the funding abuses.
The official advised her to write a memorandum detailing
her disagreements with the agency’s position. Although
motivation behind a statement may affect the ultimate
balance, subject matter is the predominant factor in this
A-7
threshold analysis. Yoggerst v. Hedges, 739 F.2d 293, 296
(7th Cir.1984). McIntire’s statements charged serious
improprieties which were a matter of public concern.
Having determined that the employee’s speech is of
public concern, we turn to the einployer’s side of the
fulcrum. In determining the state’s interest, we must
consider:
(1) the need for harmony in the office or work place; (2)
whether the government’s responsibilities require a
close working relationship to exist between the plaintiff
and co-workers when the speech in question has
caused or could cause the relationship to deteriorate; (3)
the time, manner, and place of the speech; (4) the
context in which the dispute arose; (5) the degree of
public interest in the speech; and (6) whether the
speech impeded the employee’s ability to perform his or
her duties.
Lewis v. Harrison School District No. 1, 805 F.2d 310, 315
(8th Cir.1986); cert. denied, 482 U.S. 905, 107 S.Ct. 2481, 96
L.Ed.2d 374 (1987).
We note initially that McIntire’s position in the agency
was one of high profile. She was an agency spokesperson.
Employees with this type of responsibility carry a
corresponding duty of caution with respect to the words that
they speak. Rankin, 107 S.Ct. at 2900. McIntire’s public
confrontation with the agency could only undermine her
ability to perform the duties of her job, especially when one
considers the harsh tone of her memorandum. See Patkus v.
Sangamon-Cass Consortium, 769 F.2d 1251, 1258 (7th
Cir.1985) (county liason’s ability to represent her employer
was hindered by inappropriate statements. )
We also consider that the issues raised in MclIntire’s
memo had already been the subject of a legislative auditor's
report. The alleged improprieties had not been concealed
from public knowledge. Finally, McIntire’s memo pre-
empted the agency’s opportunity to respond to the auditor's
report. This was clearly contrary to the agency's interests,
A-8
and consistent only with MclIntire’s personal stake in the
matter.”
Having identified the interests of the individual and the
state, the Pickering test requires us to balance MclIntire’s
interest, as a citizen, speaking out on a matter of public
concern, against the interest of the agency, as employer, in
furthering the agency’s work. See Rankin, 107S.Ct. at 2898;
Connick, 461 U.S. at 149-51, 103 S.Ct. at 1691-92.
[3] Balancing these interests in the context of qualified
immunity moves the fulcrum on which the decision turns.
To penetrate the government officials’ qualified immunity,
the balance must be in favor of the employee to a degree that
evidences a clearly established right. The unlawfulness of
the act must be apparent in the light of pre-existing law.
Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034,
3039, 97 L.Ed.2d 523 (1987).
Courts usually ascertain whether the claimed violated
right has been clearly established by comparing the facts of
the case under consideration with other decided case facts.
Johnson v. Morris, 453 N.W.2d at 39. The Minnesota
Supreme Court made this comparison in Finch v. Wemlinger,
361 N.W.2d 865, 870-71 (Minn.1985). The court weighed that
balance in favor of the immunity of government officials
who had discharged an employee for informing certain
state senators that hiring practices in his agency were
politically motivated. The court observed that the holding
of Pickering did not create a standard that the officials
would have known they violated in their treatment of
Finch. Jd.
Although McIntire was discharged eight years after the
‘Ordinarily, the question of whether there is office disruption or a need
for loyalty and trust is a jury matter. McGee v. South Pemiscot School
District R-V, 712 F.2d 339, 342 (8th Cir. 1983). Here, however, the facts
peculiar to this case are sufficiently uncontroverted so that jury
findings are unnecessary in the context of an immunity determination.
See McIntire I. The objective qualified immunity standard adopted in
Harlow militates in favor of resolving immunity issues without trial if
possible. See Harlow, 457 U.S. at 816-817, 102 S.Ct. at 2737; Johnson v.
Morris, 453 N.W.2d 31, 40 (Minn.1990).
A-9
| ee
discharge in Finch, intervening case law has not established
a clear standard which the officials in this case transgressed
in terminating MclIntire’s employment. On these facts the
individual respondents did not violate clearly established
first amendment rights by discharging McIntire.
IT.
Procedural Due Process
{4] To be cognizable, McIntire’s due process rights must
be based on a protectible property interest in continued
employment. Board of Regents v. Roth, 408 U.S. 564, 577, 92
S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). McIntire was a
probationary employee. Although probationary status does
not insulate the agency from liability for free speech
violations, absent such a violation McIntire must
demonstrate an independent property interest in continued
employment to survive dismissal on her due process action.
There is no evidence in the record that any rules or
understandings conferred to McIntire a right to continued
employment. See Jd.
[5] McIntire has likewise failed to show a deprivation of
any liberty interest. In Roth, the Supreme Court ruled that
the dismissal of a government employee accompanied by a
“charge against him that might seriously damage his
standing and associations in his community” triggers the
due process night to a hearing at which the employee can
publicly clear his or her name.” Jd. at 573, 92 S.Ct. at 2707.
The Supreme Court later amplified its ruling, holding that if
the charges are not made public, they cannot form the basis
for a claim that the employee’s good name or reputation
was impaired. Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct.
2074, 2079, 48 L.Ed.2d 684 (1976).
McIntire was discharged for “willful misconduct.” The
agency did not inform prospective employers or the
community at large of the reason for McIntire’s dismissal.
McIntire has not demonstrated that any employment
opportunities have been foreclosed by the agency action. No
liberty interest is implicated.
A-10
Il.
Discrimination
[6] McIntire alleges that she was discharged because of
her race as an American Indian, contrary to 42 U.S.C. §
1981 and the Minnesota Human Rights Act, Minn.Stat. §
363.03, subd. 1(2) (1984).4 In order to survive a summary
judgment motion, McIntire must establish a prima facie
case of discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973);
Danz v. Jones, 263 N.W.2d 395, 399 (Minn. 1978). A prima
facie case may be established by direct evidence of
discrimination or by a demonstration that:
(1) [the employee] is a member of a protected class; (2)
[the employee] was qualified for the job from which he
was discharged; (3) [the employee] was discharged,
and (4) the employer assigned a nonmember of the
protected class to do the same work.
Hubbard v. United Press International, Inc., 330 N.W.2d
428, 442 (Minn.1983).
McIntire did not submit any direct evidence of dis-
crimination and her claims do not satisfy the four-part
Hubbard test. The last element in the Hubbard test is
clearly lacking as it is undisputed that McIntire was
replaced by an American Indian. Because of her failure to
es.ablish a prima facie case, summary judgment on this
cause of action was properly granted.
{7] McIntire also claims that the conditions of her
employment were discriminatory. Her bald charges of race
discrimination in working conditions are inadequate as a
matter of law to survive a summary judgment motion.
These claims are also foreclosed because § 1981 prohibits
discrimination only in the making and enforcement of
contracts. It does not reach discriminatory working
conditions. Patterson v. McLean Credit Union, —— US.
—_., ——, 109 § Ct. 2363, 2373, 105 L.Ed.2d 132 (1989).
‘We assume, for purposes of this analysis, that a racially
discriminatory discharge is actionable under Section 1981. See Hicks
v. Brown Group, Inc., 902 F.2d 630 (8th Cir.1990).
A-11
IV.
Defamation
When respondents fired McIntire, they informed the
Department of Economic Security, the Human Rights
Department, and a union representative that McIntire was
terminated for “willful misconduct.” Also, a statement
explaining the reason for McIntire’s discharge was placed
in the agency’s personnel file. McIntire claims that these
communications defamed her character.°®
[8,9] Under Minnesota law, a party may be held liable for
defamation when (1) a false statement (2) is communicated
to a third person (3) which tends to harm the plaintiff's
reputation or lower the plaintiff in the estimation of the
community. Stuempges v. Parke, Davis & Co., 297 N.W.2d
252, 255 (Minn.1980). Respondents do not dispute, for the
purposes of this appeal, the last two elements. They contend.
however, that MclIntire’s actons were willful misconduct
and, in any event, an absolute and qualified privilege
shields them from liability.
In Minnesota, truth as a defense goes to the underlying
implication of the statement, not to the statement’s verbal
accuracy. Lewis, 389 N.W.2d at 889. It cannot be disputed
that McIntire knew she was disobeying her employer's
orders. Whether this was willful misconduct in the large
sense may be a question of fact.
Even if McIntire could prevail on this element, liability
does not attach if the statement is privileged. We have
previously ruled that under state law public bodies and
public officials have an absolute privilege. to follow the
requirements of the law. Freier v. Independent School
District No. 197, 356 N.W.2d 724, 729 (Minn.App.1984)
(quoting Restatement (2d) of Torts, Section 592A (1977)); see
Grossman v. School Board of I.S.D. No. 640, 389 N.W.2d
532, 536 (Minn.App.1986). Respondents were required by
law to disclose the reasons for MclIntire’s discharge to the
*MclIntire admits that she was not compelled to disclose respondents’
statements to any prospective employer. See Lewis v. Equitable Life
’ Assurance Society of the United States, 389 N.W.2d 876, 888
(Minn.1986).
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Department of Employee Relations, the Department of
Economic Security, and the Human Rights Department.
See Minn.Stat. §§ 43A.33, subd. 3; 268.10, subd. 1; and
363.06, subd. 1. With respect to these publications, the
respondents enjoy an absolute privilege and are immune to
suit.
Whether respondents were permitted to place a statement
explaining the reasons for MclIntire’s discharge in the
agency's personnel file entails a qualified privilege.
Frankson v. Design Space International, 394 N.W.2d 140,
144 (Minn.1986). When there is a qualified privilege, there
can be no recovery for defamation absent evidence of actual
malice. Lewis, 389 N.W.2d at 889.
McIntire has failed to demonstrate actual malice. There is
no extrinsic evidence indicating ill will between the parties,
nor is there intrinsic evidence, such as exaggerated
language, which might suggest an intent to injure McIntire.
See Frankson, 394 N.W.2d at 144. The trial court correctly
ordered summary judgment on MclIntire’s defamation
claims on the ground of qualified privilege.
V.
Breach of Contract
[10] McIntire asserts the violation of several rights under
her collective bargaining agreement, including the right to
(i) an appropriate job description, (ii) periodic job
performance evaluations, and (iii) union representation
during questioning. We find no merit in McIntire’s position.
Nothing in the record indicates that McIntire’s bargaining
agreement contemplated avenues of relief outside the
grievance process. The grievance process provided McIntire
with the right to have the union meet with the agency in an
attempt to resolve her grievance. Within 10 days, the
agency was required to decide whether her grievance was
meritorious. No further process was provided, and it is
evident from the procedural scheme set forth in the
agreement that the agency decision was intended to be the
exclusive procedure for consideration of the grievance. See
Bowen v. United States Postal Service, 459 U.S. 212, 225 n.
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En
14, 103 S.Ct. 588, 596, n. 14, 74 L.Ed.2d 402 (1983); Vaca v.
Sipes, 386 U.S. 171, 184n.9,87S.Ct. 903, 913 n. 9, 17 L.Ed.2d
842 (1967); Republic Steel Corp. v. Maddox, 379 U.S. 650,
/ 657-658, 85 S.Ct. 614, 618-619, 13 L.Ed.2d 580 (1965).
VI.
Wrongful Discharge
[11] Finally, McIntire argues that she was discharged in
violation of the public policy exception to at-will
employment. In Phipps v. Clark Oil and Refining Corp., 396
N.W.2d 588 (Minn.App.1987), aff’d., 408 N.W.2d 569
(Minn.1987), an at-will employee refused to dispense leaded
gasoline into an automobile equipped to receive only
unleaded gasoline, correctly believing that such an act
would be in violation of the law. After being terminated for
this conduct, the employee brought suit for wrongful
discharge. On appeal, this court ruled that an employer
may not discharge an employee for reasons that “contravene
a clear mandate of public policy.” Jd. at 592.
Applying Phipps, we do not believe the reasons for
MclIntire’s discharge contravened a clear mandate of public
policy. Unlike Phipps, McIntire was not asked to violate the
law. Moreover, McIntire’s discharge did not violate any
clearly established statutory or constitutional rights. The
“whistleblower” statute, Minn.Stat. § 181.932, had not yet
been enacted. Accordingly, the trial court correctly dismissed
this claim.
DECISION
The trial court properly granted summary judgment on
McIntire’s claims relating to free speech, procedural due
process, discrimination, defamation, breach of conduct and
wrongful discharge.
Affirmed.
A-14
Marcie McINTIRE, Respondent,
Vv.
The STATE of Minnesota, et al., Appellants.
No. C7-87-1556.
Court of Appeals of Minnesota.
Feb. 23, 1988.
Review Denied April 20, 1988.
Fired public employee brought suit alleging that her First
Amendment free speech rights were violated. The District
Court, Hennepin County, Patrick Fitzgerald, J., denied
three government officials’ motion for summary judgment,
and they appealed. The Court of Appeals, Parker, J., held
that government officials performing discretionary
functions generally are shielded from liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which
reasonable person would have known.
Reversed and remanded.
1. Appeal and Error 95
Court of Appeals has jurisdiction to review order denving
motion to dismiss government official from lawsuit when
basis of motion is immunity from suit.
2. Officers and Public Employees 114
Government officials performing discretionary functions
generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional mghts of which reasonable
person would have known.
3. Constitutional Law 90.1(7.2)
When state employee claims violation of her First
Amendment free speech nights, trial court must balance
interest of employee, as a citizen, in commenting on matter
of public concern and interests of State, as employer, in
promoting efficiency of public services it provides through
its employees. U.S.C.A. Const.Amend. 1.
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4. Constitutional Law 90.1(7.2)
In public employee firing context, test to determine
whether employee’s speech is protected is whether it
addresses matter of public concern and whether State’s
interests outweigh employee's interest. U.S.C.A.
Const.Amend. 1.
Syllabus by the Court
Trial court erred by failing to analyze claim of qualified
immunity under the objective standard established by
Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73
L.Ed.2d 396 (1982).
Stephen C. Fiebiger, Fiebiger & Flaim, Minneapolis, for
respondent.
Hubert H. Humprhey, III, Atty. Gen., Jean Boler, Mark
Levinger, Sp. Asst. Attys. Gen., St. Paul, for appellants.
Heard, considered and decided by WOZNIAK, C.J., and
PARKER and SCHUMACHER, JJ.
OPINION
PARKER, Judge.
[1] Appellants, three government officials, seek review of
an order denying their motion for summary judgment.
They claim the trial court should have held that they have
qualified immunity from suit on respondent’s first
amendment claims. This court has jurisdiction to review an
order denying a motion to dismiss a governmental official
from a lawsuit when the basis of the motion is immunity
from suit. See Anderson v. City of Hopkins, 393 N.W.2d 363,
363-64 (Minn. 1986). We reverse and remand.
FACTS
In July 1984 appellant Minnesota Housing Finance
Agency hired respondent Marcie McIntire, an American
Indian, as the Indian Housing Coordinator for its home
mortgage division. Her duties were to oversee the
administration of funds to several Indian housing programs
and to act as the agency's representative to the
administrators of those programs and the Indian
B-2
communities they serve. One such program was the St. Paul
Intertribal Housing Board (board). McIntire’s supervisor,
appellant Michael Haley, had ultimate responsibility for
approving program budgets, including the board’s budget.
In the spring of 1984, before McIntire was hired, the
agency investigated reports that the board had been
misusing agency funds through unauthorized loans and
salary increases. When McIntire was hired in July, she was
informed of these problems and that measures were being
taken to correct them.
In August and September 1984 McIntire made several
public statements which her supervisors viewed as
inappropniate. At a tribal meeting she indicated that the
state auditor had a conflict of interest in auditing one of the
Indian programs. At a public meeting with the Urban
Indian Advisory Council McIntire implied that board
members were sophisticated embezzlers. McIntire also
contradicted her supervisor at a Housing Finance Agency
Board meeting.
On December 7, 1984, Haley, the director of the agency’s
home mortgage program, opened an outgoing envelope
addressed to “Senate Council.” In it was a ninepage
memorandum addressed to Haley from MclIntire. The
memo was dated December 4, 1984, but Haley had not
previously seen it. The memo outlined in detail how
expenditures by the board had exceeded their approved
budget and stated that McIntire opposed continued funding
to the board.
Upon reading the memo, Haiey directed McIntire not to
distribute the memo. Despite his order and without
informing Haley of her action, McIntire mailed copies of the
memo to six individuals outside the agency, including a
union representative and members of the Indian community.
Because of MclIntire’s public statements, but without
knowledge that she had mailed the December 4 memo, the
agency decided to extend MclIntire’s probationary period
rather than certify her for permanent employment. By
memoranda dated January 10 and 14, 1985, the agency
notified McIntire how her conduct should be corrected in
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order for her to be certified for permanent employment.
Haley received calls from members of the Indian
community in January 1985 who told him that McIntire’s
December 4 memo had been “widely distributed” in the
Indian community. The agency determined that McIntire
had been insubordinate and that the working relationship
had completely broken down. On February 15, 1985, McIntire
was discharged from the agency.
McIntire sued the State of Minnesota, the Housing
Finance Agency, agency executive director James Solem,
agency personnel director Henry Wesley, and Haley. Solem,
Wesley and Haley moved the trial court for summary
judgment dismissing MclIntire’s suit. The trial court denied
the motion without specifically addressing the claims of
qualified immunity, reasoning that there were “a myriad of
unresolved questions surrounding [McIntire’s] employment
and dismissal.”
ISSUE
Did the trial court err in failing to apply an objective
standard to appellants’ claim of qualified immunity
pursuant to Harlow v. Fitzgerald?
DISCUSSION
[2] Under the standard set forth in Harlow v. Fitzgerald,
government officials performing discretionary
functions generally are shielded from liability for civil
damages insofar as their conduct does not violate
clearly established statutory or constututional rights
of which a reasonable person would have known.
Id., 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396
(1982).
The rationale of the defense is that public officials with
a broad range of duties and responsibilities must be
able to execute those responsibilities without undue
risk of civil liability.
Finch v. Wemlinger, 361 N.W.2d 865, 868 (Minn.19835).
In Harlow the Supreme Court further explained the
applicable test:
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If the law was clearly established, the immunity
defense ordinarily should fail, since a reasonably
competent public official should know the law
governing his conduct. Nevertheless, if the official
pleading the defense claims extraordinary
circumstances and can prove that he neither knew nor
should have known of the relevant legal standard, the
defense would turn primarily on objective factors.
Harlow, 457 U.S. at 818-19, 102 S.Ct. at 2738. Whether the
law was Clearly established is a threshold question; if the
trial court finds the law was not clearly established when
the conduct occured, “the inquiry ceases” and “the official is
entitled to summary judgment as a matter of law.” Finch,
361 N.W.2d at 868.
The scope of the qualified immunity doctrine is broad:
As the qualified immunity defense has evolved, it
provides ample protection to ail but the plainly
imcompetent or those who knowingly violate the law.
Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 1096, 89
L.Ed.2d 271 (1986).
[3] Because McIntire claims that appellants violated her
first amendment free speech rights, the trial court must
balance
the interests of the [employee], as a citizen, in
commenting on matters of public concern and the
interests of the State, as an employer, in promoting the
efficiency of the public services it performs through its
employees.
See Pickering v. Board of Education, 391 U.S. 563, 568, 88
S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968). The trial court
must carefully consider the facts surrounding MclIntire’s
claimed right to free speech in this case. McIntire did not use
internal communication channels to relate a perceived
problem, but instead attempted to distribute a memo
addressed to her supervisor without first showing it to him.
After her supervisor specifically directed that she not
distribute the memo, McIntire defied his order, publicly
distributed it and concealed her distribution of it. ;
B-5
‘
[4] McIntire essentially claims that she had a “clearly
established” constitutional right to violate her supervisor's
specific order and distribute an intra-agency memo
addressed but not sent to him. In a public employee firing
context, the test to determine whether an employee's speech
is protected is (1) whether it addresses a matter of public
concern, and (2) whether the state’s interests articulated in
Pickering outweigh the employee’s interests. See Lewis v.
Harrison School District 1, 805 F.2d 310, 313 (8th Cir.1986),
cert. denied, ___ U.S. ___,, 107 S.Ct. 2481, 96 L.Ed.2d 374
(1987). The following facts must be considered in applying
this test: the information contained in the memo had
previously been brought to the attention of the legislative
auditor who was conducting detailed audits of the board;
several days before distribution of the memo, the legislative
auditor issued its report on the board, confirming funding
abuses; and the Housing Finance Agency cut off the board’s
funding before McIntire distributed her memo.
The trial court should balance the interest of the agency,
in promoting the efficiency of the public services it performs
through its employees, against any right McIntire may
have had to take action in the specific factual setting here.
Factors bearing on the smooth operation of the workplace
— such as the maintenance of discipline by immediate
supervisors, harmony among co-workers, and the existence
of a close working relationship between supervisor and
subordinate calling for trust, confidence and loyalty —
should be considered. See Finch, 361 N.W.2d at 870. The
“exact parameters of the free speech rights of public
employee” must also be clearly established. See id. at 871.
The trial court found the issues here were “not appropri-
ately resolved by summary judgment motion.” We have
stated, however, that a determination of whether an official's
conduct falls within the scope of the immunity outlined by
the objective Harlow test is “generally a question of law
which may be resolved by summary judgment.” Anderson
v. City of Hopkins, 400 N.W.2d 350, 354 (Minn.Ct.App.1987).
Failure to apply the Harlow standard requires a remand
B-6
for proper consideration of it. Jd. at 355. The trial court
denied appellants’ claim of immunity and made no reference
to the Harlow standard in its analysis. Because the trial
court is “more familiar with the record and is better situated
to make any necessary findings,” it must apply the Harlow
standard before this court can review the decision. See id.
DECISION
We reverse and remand this case to the trial court for
application of the objective Harlow test in analyzing
appellants’ claim of qualified immunity.
Reversed and remanded.
Z
U
—
STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN
FOURTH JUDICIAL DISTRICT
Marcie McIntire,
Plaintiff,
VS.
The State of Minnesota,
Minnesota Housing Finance Agency, James Solem,
Individually and in his Official Capacities
as its Executive Director;
Henry Wesley, Individually and in Official Capacities
as its Personnel Director; and Michael Haley,
Individually and in his Official Capacities as
Director of Home Mortgage Program,
Defendants.
ORDER AND MEMORANDUM
File No. MC 85-19993
The above-entitled matter came on for hearing before the
undersigned Judge of District Court pursuant to defendants’
motion for partial summary judgment encompassing Counts
I through V of the complaint.
Stephen C. Fiebiger, Esq., appeared on behalf of plaintiff
and Kevin Staunton, Esq., and Scott Strand, Esq., appeared
on behalf of defendants.
Based upon the files, records and proceedings held herein,
the court makes the following:
C-1
ORDER
1) That defendants’ motion for summary judgment with
respect to Count I of plaintiff's complaint alleging
discrimination contrary to Minn. Stat. § 363.01 et seg. be
GRANTED.
2) That defendants Wesley, Solem and Haley’s motion
for summary judgment with respect to Count I of plaintiff's
complaint alleging free speech violations under 42 U.S.C. §
1983 be GRANTED.
3) That defendants Wesley, Solera and Haley’s motion
for summary judgment with respect to Count III of plaintiffs
complaint alleging liberty and due process violations under
42 U.S.C. § 1983 be GRANTED.
4) That defendants’ motion for summary judgment with
respect to Counts IV and V of plaintiff's complaint alleging
discrimination contrary to 42 U.S.C. §§ 1981 and 1985(3)
respectively, be GRANTED.
5) That the attached memorandum be incorporated herein
by reference.
LET JUDGMENT BE ENTERED ACCORDINGLY,
BY THE COURT:
Bery! A. Nord
Judge of District Court
Dated: this 25th Day of January, 1989.
C-2
MEMORANDUM
The matters before this court stem from plaintiff Marcie
McIntire’s discharge from employment on February 15,
1985. On July 2, 1984, plaintiff, a female American Indian,
was hired as the Indian Housing Coordinator for the
Minnesota Housing Finance Agency (Agency). The duties
of the Indian Housing Coordinator were to oversee the day
to day administration of Agency funds to the several urban
and outstate Indian housing programs and to act as the
Agency's representative to the administrators of these
programs and the Indian communities they served. Plaintiff
was hired as a probationary employee under state law and
the collective bargaining agreement between the State and
the Minnesota Association of Professional Employees
(MAPE).
One of the ongoing issues at the Agency at the time
plaintiff was hired was its relationship with one of the
Indian housing programs run by the St. Paul Intertribal
Housing Board (SPIHB). In the spring of 1984 the Agency
had investigated reports that the SPIHB had been misusing
Agency funds through, among other things, unauthorized
loans and salary advances. Pursuant to a directive by the
Agency Board, the Agency was to implement administrative
procedures in the summer of 1984 to monitor the SPIHB
more closely. In addition, a legislative audit of the SPHIB
was under way. Although there is some disagreement about
when plaintiff was informed of the SPIHB problem, it is
clear she was well aware of it during most of her tenure with
the Agency.
As Indian Housing Coordinator, plaintiff was the Agency
liaison with the SPIHB. She had to review the program
budgets and correspond with the SPIHB executive director
and staff regarding expenditures. Plaintiff's supervisor,
Michael Haley, had ultimate responsibility for signing off
on SPIHB budgets. Plaintiff became convinced that the
SPIHB was misusing funds and voiced her displeasure to
Haley and others in the fali of 1984. Throughout the fali, the
Agency continued to fund the SPIHB and plaintiff continued
C-3
to voice her opposition to continued funding. It is fair to say
that plaintiffs relationship with her supervisor was
somewhat rocky and that the majority of the problem
centered around SPIHB funding. Plaintiff was outspoken
in her disagreements and on more than one occasion was
reminded about protocol and proper channels.
On December 4, 1984, plaintiff drafted a memo that set
forth numerous detailed abuses and deviations from the
contract by the SPIHB. On December 7, 1984 she deposited
envelopes into the mail at the Agency containing copies of
the memorandum along with copies of the Legislative
Auditor’s Report which had been issued on December 4,
1984, which also outlined abuses. These envelopes were
hand-addressed to members of the Indian community and
to Senate Counsel. Plaintiff also claims to have put a
memorandum on Haley’s desk. Haley disputes receiving
her memo. He asserts he became aware of the memo when
he opened the envelope addressed to Senate Counsel after
retrieving it from the outgoing mail pile. After reading the
memo he retrieved the other handwritten envelopes and
confronted the plaintiff. Haley informed plaintiff that she
would have been fired immediately if she had succeeded in
distributing the memorandum. He also told plaintiff that he
considered the memo to be inaccurate, unnecessary and its
distribution outside the Agency by the Agency’s
representative to the Indian community improper.
Unbeknownst to Haley, plaintiff mailed the memorandum
to six individuals outside the Agency including a union
representative and members of the Indian community.
Due to plaintiffs actions the Agency, upon Haley’s
recommendation, extended plaintiff's probationary period
rather than certify her for permanent employment. This
was done pursuant to Section 7 of Article 16 of the MAPE
agreement. In memoranda dated January 10, and January
14, 1985, to Henry Wesley, the personnel director at the
Agency, Haley outlined the types of behavior plaintiff
needed to correct. Plaintiff was given notice of these
expectations and agreed to adhere to the conditions.
On January 18, 1985, the Agency was notified by staff
C-4
from the St. Paul American Indian Center that the December
7 memorandum had been widely distributed. The following
week, the SPIHB contacted the Agency regarding the
memo and threatened to sue. After an incident on Februrary
7, 1985, wherein plaintiff accused Haley of opening her
mail, the Agency determined that plaintiff had been
insubordinate and the working relationship had completely
broken down. On February 15, 1985, plaintiff was non-
certified and discharged from the Agency for “willful
misconduct.”
As provided for in the collective bargaining agreement,
MAPE filed a third step grievance on behalf of plaintiff.
Plaintiff subsequently met with her appointing authority,
Agency Executive Director, James Solem, to discuss the
reasons for her discharge. Solem affirmed the non-
certification and discharge. The Agency then hired Donna
Folstad, an American Indian woman who had held the
position of Indian housing coordinator prior to plaintiff, to
replace her.
Plaintiff has brought suit against the State of Minnesota,
the Minnesota Housing Financy Agency, Executive Director
James Solem, Personnel Director Henry Wesley and her
supervisor Michael Haley. Plaintiff claims that their actions
have violated her rights to free speech and due process thus
entitling her to damages under 42 U.S.C. §1983. In addition,
she alleges that noncertification and some of the terms and
conditions of her employment were discriminatory in
violation of Minn. Stat. §363.03 and 42 U.S.C. §§ 1981 and
1985(3). She also has alleged intentional infliction of
emotional distress, defamation, unlawful discharge and
violations of the collective bargaining agreement between
MAPE and the State of Minnesota.
In June of 1987, plaintiff brought a motion for partial
summary judgment. Defendants also brought a motion for
summary judgment at that time. All motions were denied
by the Honorable Patrick W. Fitzgerald of this court. The
individual defendants, Solem, Wesley, and Haley, appealed
the ruling, claiming the trial court should have held that
they have qualified immunity from suit on plaintiff's First
C-5
Amendment claims. On February 23, 1988, the Minnesota
Court of Appeals remanded the case to the trial court to
specifically consider defendants’ claims of qualified
immunity.! Defendants are now before this court seeking
partial summary judgment on plaintiffs First Amendment
and Due Process claims on the basis of qualified immunity.
The standard for determining when a government official
is entitled to immunity was articulated in Harlow uv.
Fitzgerald, 475 U.S. 800, 102 S.Ct. 2727, 73 L.Ed. 396 (1982).
Government officials who perform discretionary functions
are shielded from liability to the extent that “their conduct
does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known.” Jd. at 818, 102 S.Ct. at 2783. In explaining this
standard, the Harlow Court stated:
On summary judgment, the judge appropriately may
determine, not only the current applicable law, but
whether the law was clearly established at the time an
action occured. If the law at that time was not clearly
established, an official should not reasonably be
expected to anticipate subsequent legal developments,
nor could he fairly be said to “know” that the law
forbade conduct not previously identified as unlawful .
. . . If the official pleading the defense claims
extraordinary circumstances and can prove that he
neither knew nor should have knows of the relevant
legal standard, the defense should be sustained.
Id. at 818-819, 102 S.Ct. at 2738.
In the instant case defendants do not contend that
exceptional circumstances existed and thus the only
question before this court is whether the applicable law was
well established in 1985. With regard to the First
Amendment free speech issue defendants contend that
plaintiffs constitutional right to circulate an intra-agency
memo outside of the agency in contravention of her
supervisor’s order and to speak out against the agency’s
‘McIntire v. State, 419 N.W.2d 799, 803 (Minn. App. 1988).
C-6
policies and contradict her supervisor in open meetings was
not “clearly established” in 1985. This court must agree.
To determine whether a public employee possesses free
speech rights, the United States Supreme Court has required
the use of a balancing test. Pickering v. Board of Education,
391 U.S. 563, 468, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968).
The interests to be balanced are those “of the [public
employee], as a citizen, in commenting upon matters of
public concern and the interests of the State, as an employer,
in promoting the efficiency of the public services it performs
through its employees.” Jd. The Minnesota Supreme Court
in Finch v. Wemlinger, 361 N.W.2d 865 (Minn. 1985) applied
the Harlow analysis to a case in which a public employee
claimed his First Amendment rights were violated by his
discharge. Finch contacted four state senators whose
committee assignments related to the Department of
Economic Security where Finch worked and informed them
of what he deemed to be illegal hiring practices in his
division. The following day his supervisor terminated him.
The Minnesota Supreme Court held that Finch had no
clearly established constitutional right to continued
employment under those circumstances.
In reaching this conclusion, the Minnesota court cited to
the balancing test in Pickering, noting that in that case the
Supreme Court had established only the basic perimeters of
a public employee’s free speech rights. Finch, 361 N.W.2d at
870. In fact, the Pickering Court itself stated:
Because of the enormous variety of fact situations in
which critical statements by teachers and other public
employees may be thought by their supervisors, against
whom the statements were directed, to furnish grounds
for dismissal, we do not deet: it either appropriate or
feasible to attempt to lay down a general standard
against which all such statements may be judged.
Pickering v. Board of Education, 391 U.S. at 569, 88S.Ct. at
1735, cited to in Finch v. Wemlinger, 361 N.W.2d at 879. In
Finch, the court found that the need to maintain a close
working relationship between superior and subordinate
C-7
called for trust, confidence and loyalty, and those
considerations outweighed the employee's interest in
commenting upon matters of public concern. Finch at 870-
871. Such are the considerations apparent in the instant
case.?
Plaintiff was in a confidential position with the Agency.
It was her job as Indian Housing Program Coordinator to
be the Agency’s spokesperson to the Indian community. It
was essential that the Agency have confidence that she
would fairly and accurately represent its positions.
Plaintiffs speech undermined that confidence. It is also
obvious that plaintiffs conduct disrupted the day-to-day
administration of the Indian Housing Program. Obviously,
her contradictions undermined the Agency’s ability to
present a coherent position. Clearly, the interest of the
Agency in efficiently performing its public services was
seriously weakened by plaintiff's actions.
This is not to say that plaintiffs interests could not
possibly outweigh those of the Agency, however, this court
is convinced, given the fact situation, that the plaintiff's
interests do not in any way override the Agency’s interests.
In assessing plaintiff's interests, this court does not believe
that plaintiff was commenting upon matters of public
concern as much as she was attempting to protect herself.
She was fearful that any SPIHB funding abuses might be
blamed on her and she was trying to avoid any misunder-
standings. While the end result is that the public was made
aware of the issue, this was not her sole motivation.
Additionally, at the time plaintiff distributed the
controversial memo, she knew that the legislative auditor's
*The Court of Appeals on remand directed this trial court to “balance
the interest of the agency, in promoting the efficiency of the public
services it performs through its employees, against any right McIntire
may have had to take action in the specific factual setting here.”
Citing Finch, it further directed the trial court to take into consideration
“factors bearing on the smooth operation of the workplace —such as
the maintenance of discipline by immediate supervisor and subordinate
calling for trust, confidence and loyalty.” McIntire v. State, 419
N.W.2d at 802.
C-8
report, citing SPIHB excesses, had already been released to
the public, thereby diminishing any need on her part to
disseminate the information.
Given the above considerations, it cannot be said that
plaintiff possessed First Amendment free speech rights in
this case. The applicable law was not well-established at the
time of plaintiff's discharge, thus defendants Solem, Wesley
and Haley must be afforded qualified immunity with
respect to plaintiffs First Amendment claims.
Defendants Solem, Wesley and Haley have also asserted
a qualified immunity defense with respect to plaintiff's due
process claim. Plaintiff asserts that this matter is not
properly before the court as this issue was not appealed and
remanded by the Court of Appeals. However, since the
Court of Appeals specifically remanded this case to analyze
defendants’ claim of qualified immunity and it is also its
position that such determinations are appropriately resolved
by summary judgment, this court will address the Due
Process claim also.”
Plaintiff claims defeidants violated her due process
rights to liberty and property by not certifying her for
permanent employment and terminating her without a pre-
termination hearing. It is plaintiffs position that she had a
protectable property interest in her job at the Agency. She
contends that defendants sought to circumvent her
procedural rights by continuing her probationary status in
January 1985 rather than certifying her as a permanent
employee. Had she been certified in January she would
have been entitled to arbitration procedures upon her
discharge in February. Defendants argue that plaintiff had
no protected property interest in her job because she was a
probationary employee, and without a protected property
intervst there can be no due process violation. Hence, their
actions with respect to plaintiff are entitled to qualified
immunity because they did not violate “clearly established”’
constitutional rights. Defendants take the position that the
3McIntire v. State, supra. See also Anderson v. City of Hopkins, 400
N.W.2d 350, 354 (Minn. App. 1987).
C-9
law in this area was clearly established and that their
action conformed with it. This court must agree with
defendants.
To have a protected property interest in employment, a
public employee must have “a legitimate claim of entitlment”’
to continued employment. Board of Regents v. Roth, 408
U.S. 564, 577, 92 S.Ct. 2701, 2709 (1972). The existence of a
legitimate claim of entitlement is determined by reference to
state law and the employee’s employment contract. Bishop
v. Wood, 426 U.S. 341, 344-45, 96 S.Ct. 2074, 2077-78, 48
L.Ed.2d 684 (1976). State law provides: “There is no
presumption of continued employment during a probation-
ary period. Terminations or demotions may be made at any
time during the probationary period .. .” Minn. Stat.
§43A.16, subd. 2 (1986). Additionally, the Minnesota Court
of Appeals in Smith v. Hennepin County, 383 N.W.2d 391
(Minn. App. 1986) held that a probationary employee was
subject to dismissal] at any time without right of appeal. Jd.
at 393. Thus, both statutory and case law in Minnesota
clearly establish that a probationary public employee does
not have a legitimate claim of entitlement to employment.
Looking to plaintiff's employment contract, the collective
bargaining agreement, it is clear that plaintiff as a proba-
tionary employee, had no “legitimate claim of entitlement”’
to continued employment. Under the collective bargaining
agreement, the appointing authority’s discretion not to
certify a probationary employee is not limited and there is a
provision which specifically allows the appointing authority
discretion to extend an employee’s probationary period an
additional 520 days. (Def. Ex.2). Thus, under both State law
and her employment contract, plaintiff cannot claim a
legitimate entitlement toemployment and therefore has not
been deprived of a property interest.
Plaintiff also argues that she has been deprived of a
liberty interest because of her discharge from employment.
She claims that she has suffered severe stigma and
emotional distress in the Indian community as a result of
her discharge and that it could have an adverse impact on
her ability to take advantage of other employment
C-10
+ aaa loneeiaenaae aaa |
opportunities. Defendants argue that there hasn’t been
sufficient publication to infringe on plaintiffs liberty
interests and further, if there was, they are still entitled to
qualified immunity because under the Harlow analysis
there was no clearly established law regarding how much
process was due plaintiff.
To establish deprivation of a liberty interest via discharge
from employment, an employee must demonstrate that, in
connection with her discharge, her employer has made a
charge “that might seriously damage [her] standing and
associations in jher] community” or that is sufficient to
impose “a stigma or other disability” that forecloses the
employee from the freedom to take advantage of other
employment opportunties. Roth supra, 408 U.S. at 573, 92
S.Ct. at 2707. See also, Paul v. Davis, 424 U.S. 693, 96 S.Ct.
1155 (1976). Charges connected with dismissal can easily
create such a stigma if they are publicized to the extent that
other prospective employers may be deterred from hiring
the individual. Jd.
In the instant case, the reasons for plaintiffs non-
certification have not been sufficiently published to
implicate a liberty interest. The reasons for plaintiff's
discharge are contained in her personnel file at the Agency.
It is confidential information which has been shared with
plaintiff, her union representative, the representative from
Unemployment Compensation, and the Human Rights
Department, the latter two at plaintiffs own request.
Plaintiff alleges she was stigmatized in the Indian
community but can offer no proof that defendants shared
the reason for her discharge with anyone other than those
persons listed above. Accordingly, no liberty interest has
been implicated and defendants are entitled to qualified
immunity.
Defendants have also brought a motion for summary
judgment with respect to plaintiff's claims under the
Minnesota Human Rights Act. They assert that plaintiff is
unable to establish a prima facie case of discrimination.
This court agrees.
The elements necessary to establish a prima facie case of
C-11
discriminatory discharge under the Minnesota Human
Rights Act were set forth in Hubbard v. United Press
International, Inc., 330 N.W.2d 428 (Minn. 1983). The
discharged employee carries the burden of establishing
that: 1) she is a member of a protected class; 2) she was
qualified for the job from which she was discharged; 3) she
was discharged; and 4) the employer assigned a non-
member of the protected class to do the same work. Jd. at
442. The dispute herein centers around the fourth element.
It is uncontroverted that after plaintiff was discharged,
Donna Folstad, an American Indian female, was hired to
replace her. Folstad is a member of the same protected class.
Plaintiff makes some argument that other people filled
plaintiff's position prior to the appointment of Folstad, but
it is clear that they were simply other staff members who
were “filling in” during the interim between plaintiff's
discharge and Folstad’s hiring.
Plaintiff alsc makes the argument that the fourth element
should not be read literally. Rather, the court should take a
more holistic approach and look at the workings of the
entire Agency. It is plaintiff's contention that the Indian
Housing Program is being treated differently than the other
housing programs being run through the Agency. Plaintiff
argues that the other housing programs were more
structured and that the housing coordinators for those
programs were given manuals and training. She asserts
that the Indian Housing Program lacked a great deal of
structure and that she, as Indian Housing Coordinator was
given very little guidance and no program manual. Itis her
contention that his disparate treatment between the
programs and thus between the housing coordinators is
based upon race and this is sufficient to satisfy the fourth
Hubbard element.
Plaintiff's argument must fail. While it may be true that
the Indian Housing Program is run differently than the
other housing programs, that is a separate issue from
whether plaintiff was discriminatorily discharged because
she was an American Indian. In order for this court to
presume ihere was a discriminatory discharge, ‘plaintiff
C-12
must meet the objective standard of showing she was
replaced by someone other than an American Indian. This
she cannot do.
With respect to plaintiff's claim of employment
discrimination, in order to establish a prima face case
plaintiff must not only show that she was treated differently
from non-Indian housing coordinators, she must show
some damage related thereto. She claims she did not have a
suitable program manual and adequate training, but she
never links this to any adverse result. She does not allege
that because she had inadequate training she was unable to
do her job and as a result had her probation extended.
Nowhere does plaintiff connect her extension of probation
to anything other than defendants’ alleged desire to abridge
her freedom of speech. Accordingly, defendants’ motion for
summary judgment with respect to plaintiff's discrimination
claims based on the Minnesota Human Rights Act must be
granted.
Lastly, defendants seek summary judgment with respect
to plaintiff's 42 U.S.C. §§ 1981 and 1985(3) claims. Given the
court’s previous holdings, it is clear that these claims must
also fail. Section 1981 establishes a substantive right to be
free from retaliatory discharge. Greenwood v. Ross, 778
F.2d 448 (8th Cir. 1985). To establish a prima facie case a
plaintiff must show: 1) statutorily protected participation,
2) adverse employment action, and 3) a causal relationship
between the two. Id. at 456. See also, McDonnell Douglas,
411 U.S. at 802-04, 93S.Ct. at 1324-25. As has been discussed
previously, plaintiff's conduct was not protected by the
First Amendment, nor can she show discrimination, thus,
plaintiff is unable to satisfy the first element. She cannot
establish a prima facie case under § 1981 and as a
consequence defendants’ motion for summary judgment
must be granted.
As to plaintiff's § 1985 claim of conspiracy by defendants
to deprive her of her freedom of speech and due process
rights, it too must fail. Having already determined that
defendants did not deprive her of these rights, there can
C-13
obviously be no conspiracy to do so. Accordingly,
defendants’ motion for summary judgment must be granted.
B.A.N.
C-14
State of Minnesota
In Supreme Court
C6-89-2265
Marcie McIntire,
Appellant,
v.
The State of Minnesota, Minnesota Housing Finance
Agency, James Solem, Individually and in his Official
Capacities as its Executive Director; Henry Wesley,
Individually and in his Official Capacities as its
Personnel Director; and Michael Haley, Individually and
in his Official Capacities as Director of Home Mortgage
Program,
Respondents.
ORDER
Based upon all the files, records and proceedings
herein,
IT IS HEREBY ORDERED that the petition of
Marcie McIntire for further review be, and the same
is, denied.
Dated:
9-28-90
BY THE COURT:
Chief Justice
D-1
APPENDIX E
1) 42. U.S.C. Section 1983, civil action for deprivation of
rights:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory of the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at
law, suit in equity, or other proceeding for redress.
For purposes of this section, any Act of Congress
applicable exclusively to the District of Columbia
shall be considered to be a statute of the District of
Columbia
2) First Amendment of the United States Constitution:
Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peacebly
to assemble, and to petition the Government for a
redress of grievences.
3) Fourteenth Amendment of the United States
Constitution, in relevant part:
Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State
wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or
immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to
any person within its jurisdiction the equal
protection of the laws.
E-1
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.