United States Court of Appeals
For the Eighth Circuit
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No. 15-1415
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Cynthia Wilson
lllllllllllllllllllll Plaintiff - Appellant
v.
Jayne Miller, individually and in her official capacity as Minneapolis Park and
Recreation Superintendent; Minneapolis Park and Recreation Board
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: October 20, 2015
Filed: April 25, 2016
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Before RILEY, Chief Judge, SMITH and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Cynthia Wilson appeals the district court’s1 grant of summary judgment in favor
of Jayne Miller on Wilson’s 42 U.S.C. § 1983 First Amendment retaliation claim and
1
The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
the court’s dismissal of Wilson’s supplemental claim against Miller and the
Minneapolis Park and Recreation Board asserting discrimination in violation of the
Minnesota Human Rights Act. The district court found that Wilson could not
demonstrate that her protected speech was a substantial or motivating factor in her
adverse employment actions. We affirm.
I.
We derive our recitation of the facts from the district court’s factual summary
made in the light most favorable to Wilson, the non-moving party. Henderson v.
Munn, 439 F.3d 497, 499 n.2 (8th Cir. 2006). The Minneapolis Park and Recreation
Board (the “MPRB”) has employed Appellant Cynthia Wilson, an African American
woman, in various capacities since 1989. Since 2010, Appellee Jayne Miller has held
the position of MPRB superintendent.
In January 2011, before Wilson engaged in the protected speech at issue in this
case, the MPRB terminated Wilson for failing to supervise a staff member properly.
Wilson challenged her termination and was reinstated with a 30-day suspension after
a civil service hearing officer concluded that termination was too harsh. According
to the civil service hearing officer, Wilson had never received any discipline prior to
the recommendation for her termination and her past performance evaluations had
always been “good” to “excellent.” Appellee Miller attended the hearing and heard
Wilson’s testimony. Upon Wilson’s return to work in July 2011, Wilson was directed
to reimburse the MPRB for personal calls made on her cell phone issued by the
MPRB. She refused to compensate the MPRB and was suspended one day for
insubordination.
In the instant case, Wilson alleges that Miller retaliated against her for engaging
in activity protected by the First Amendment on two separate occasions. First, on
September 13, 2012 the Minnesota Spokesman-Recorder published an article
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highlighting complaints of racial discrimination within the MPRB. The article quoted
Wilson, who discussed her concerns about racial discrimination. Miller was also
quoted in the article. The second occasion occurred on December 18, 2012, when
Wilson attended an open budget meeting for all departments of the MPRB. The
MPRB employees were encouraged to ask questions and make comments about the
budget process. During the meeting, Wilson inquired into whether the MPRB was
going to continue to use a certain consultant who had identified specific problems
regarding the work environment at the MPRB.
Wilson asserts that Miller caused her to suffer several adverse employment
actions after the newspaper published her remarks and after Wilson voiced concerns
in the budget meeting. First, Wilson argues that she was denied three opportunities
to advance within the MPRB when she was not selected for the positions of Deputy
Superintendent, Assistant Superintendent of Recreation, or Director of Recreation
Centers and Programs. The posting for Deputy Superintendent was “kind of hidden”
on the MPRB’s website, and Miller argues that the hidden posting was retaliation for
her comments published in the newspaper. Wilson further alleges that Miller put the
search for the Assistant Superintendent of Recreation “on hold” and eventually
awarded the position to an external candidate in retaliation for Wilson’s reinstatement.
In March 2013, Wilson applied, interviewed, and was a finalist for the position of
Director of Recreation Centers and Programs. Ultimately, she was not selected for the
position. She asserts that Miller provided negative comments in Wilson’s 2012
performance evaluation regarding Wilson’s comments in the budget meeting, and that
hiring managers did not choose her as the Director of Recreation Centers and
Programs because of the performance evaluation.
Specifically, the performance evaluation provided that Wilson “needs
improvement” in the areas of communication skills and interpersonal skills. The
comments in these areas referenced Wilson’s remarks at the budget meeting. On
December 30, 2012, Wilson emailed Teresa Chaika, the MPRB’s Human Resources
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Manager, complaining that Miller retaliated against her in the annual evaluation for
Wilson’s questions during the budget meeting. After Wilson’s complaint to Human
Resources, her performance ratings in certain areas were amended. In the category
of communications skills, her rating was changed from “needs improvement” to
“meets expectations.” In the areas of decision-making/problem-solving and
interpersonal skills, her performance ratings were changed from “meets expectations”
to “needs improvement.” Wilson was marked as “meets expectations” in all other
categories and was given an overall rating of “meets expectations.”
In addition to the performance evaluation and the failure to promote Wilson,
Wilson alleges that a performance improvement plan and two suspensions were
retaliatory acts. In April 2013, one of Wilson’s supervisors instructed Wilson to
discipline two of Wilson’s subordinates for their work-related conduct. Wilson
completed the paperwork for written warnings but refused to sign the written warning
for one employee, insisting that it did not accurately reflect her view of the appropriate
disciplinary measure. As a result, Wilson received a ten-day suspension without pay
for insubordination. Upon her return to work, she refused to sign the second
employee’s warning and received another unpaid suspension, this time for twenty
days. When Wilson returned to work in July 2013, Wilson’s manager placed her on
a performance improvement plan as a result of her two suspensions.
Wilson filed this action, asserting claims under 42 U.S.C. § 1983 for violations
of her First Amendment and equal protection rights, as well as for reprisal and aiding
and abetting race and color discrimination under the Minnesota Human Rights Act.
Later, she voluntarily withdrew the § 1983 equal protection claim.
The district court granted in part Defendants’ motion for summary judgment
and declined to exercise jurisdiction over the remaining state law claim. Specifically,
the district court held that Wilson failed to establish a municipal “custom” of
unconstitutional misconduct by the MPRB or that her protected speech was a
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substantial or motivating factor in the employment decisions, and thus the MPRB and
Miller were entitled to summary judgment on Wilson’s § 1983 First Amendment
retaliation claim. Finally, the district court declined to exercise supplemental
jurisdiction over Wilson’s state law claims. On appeal, Wilson contests the district
court’s holding regarding Miller’s individual liability and the court’s dismissal of the
supplemental state law claims. We address these arguments in turn.
II.
A district court “shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56. “We review the district court’s grant of
summary judgment de novo, drawing all reasonable inferences, without resort to
speculation, in favor of the non-moving party.” Carrington v. City of Des Moines,
Iowa, 481 F.3d 1046, 1049 (8th Cir. 2007) (quoting Johnson v. Ready Mixed Concrete
Co., 424 F.3d 806, 810 (8th Cir. 2005)).
To establish a prima facie case of First Amendment retaliation, a plaintiff must
allege and show that: “(1) she engaged in activity protected by the First Amendment;
(2) the defendant took an adverse employment action against her; and (3) the protected
conduct was a substantial or motivating factor in the defendant’s decision to take the
adverse employment action.” Davison v. City of Minneapolis, Minn., 490 F.3d 648,
654-655 (8th Cir. 2007) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 287 (1977)). If the plaintiff satisfies this burden, then the burden shifts to
the defendant “to demonstrate that the same employment action would have been
taken in the absence of the protected activity.” Id. at 655 (citing Mt. Healthy, 429
U.S. at 287).
Miller concedes that Wilson’s newspaper interview as well as Wilson’s
questions and comments during the open budget meeting are protected by the First
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Amendment, but argues that her performance evaluation was not an adverse
employment action. Wilson asserts that the negative performance evaluation,
suspensions and write-ups, a performance improvement plan, and refusal to promote
her constituted adverse employment actions.
A. Performance Evaluation
“To constitute an adverse employment action, the employer’s decision must
effect a material change in the terms or conditions of employment.” Hughes v.
Stottlemyre, 454 F.3d 791, 796 (8th Cir. 2006). Standing alone, a poor performance
rating does not constitute an adverse employment action because it has no tangible
effect on the employee’s conditions of employment. Turner v. Gonzales, 421 F.3d
688, 696 (8th Cir. 2005). “An unfavorable evaluation is actionable only where the
employer subsequently uses the evaluation as a basis to detrimentally alter the terms
or conditions of the recipient’s employment.” Id. (quoting Spears v. Mo. Dep’t of
Corr. & Human Res., 210 F.3d 850, 854 (8th Cir. 2000)).
In December 2012, Wilson received an annual performance evaluation for the
period of January 2012 through December 2012. Miller participated in the evaluation,
which stated that Wilson “needs improvement” on her communication and
interpersonal skills. The comments in the evaluation from Wilson’s supervisors
indicated that Wilson’s questions or comments in the budget meeting came across as
“negative and non-constructive rather than someone who is seeking answers and
constrictive and positive solutions for the betterment of the organization.”
Additionally, Wilson’s remarks were “outside the purpose of the meeting, which is
distracting for the other meeting attendees.” The supervisors’ comments were
primarily targeted at Wilson’s demeanor in raising these concerns at the budget
meeting. They did not criticize the content of her speech other than to state that the
content was outside the scope of the meeting. In fact, one supervisor remarked that
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Wilson was “confident in asking questions and making comments in the meetings, but
sometimes her delivery style thwarts the message.”
The comments regarding Wilson’s demeanor were consistent with a 2011
performance review, completed prior to Wilson’s protected speech at issue in this
case, which assessed Wilson’s performance during a probationary period following
her reinstatement. In the area of communication, the 2011 performance review
suggested to Wilson that she “[b]e aware of how [she] comes across to others when
presenting ideas, giving feedback, and addressing concerns. Put [herself] in the
listeners’ shoes to self-analyze [her] tone and the unspoken characteristics of [her]
communication, which have been perceived as defiant at times.” The 2011
performance review further indicated that Wilson needed improvement in the areas
of communication and interpersonal skills.
The concerns regarding Wilson’s demeanor when she spoke at the 2012 budget
meeting were only a small part of her 2012 performance evaluation. In the areas of
customer service, technical skills and knowledge, time management, and people
management, Wilson’s supervisors characterized her performance as meeting
expectations and their comments were largely positive. Nevertheless, Wilson
complained to Human Resources that her annual evaluation did not reflect her work
performance and that Miller retaliated against her for her remarks in the budget
meeting. Subsequently, Human Resources revised Wilson’s evaluation by changing
the performance rating under communication skills from “needs improvement” to
“meets expectations” and her performance rating under decision-making/problem-
solving from “meets expectations” to “needs improvement.”
Wilson alleges that the 2012 performance evaluation had a tangible effect on
her employment because it was available to the hiring managers who did not promote
her to Director of Recreation Centers and Programs. Citing Altonen v. City of
Minneapolis, 487 F.3d 554, 560 (8th Cir. 2007), Wilson argues that the evidence gives
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rise to an “inference of retaliatory motive” and that a jury could find a causal link
between her speech, the performance evaluation, and the failure to promote her.
Nevertheless, like the plaintiff in Altonen, Wilson “points to no evidence in the record
that [her] conjecture” contributed to the MPRB’s failure to promote her. See id. at
561. “Performance ratings that have a negative impact on promotion potential do not
constitute an adverse employment action unless the rating actually led to the denial
of the promotion.” Turner, 421 F.3d at 696. Wilson does not offer any evidence that
the MPRB and Miller would have chosen her as the Director of Recreation Centers
and Programs absent the comments in Wilson’s December 2012 performance
evaluation regarding Wilson’s remarks in the budget meeting. See Turner, 421 F.3d
at 696 (affirming the district court’s grant of summary judgment where the plaintiff
failed to show that she would have gotten a promotion absent a negative performance
review). In fact, in Wilson’s deposition, she asserted that the failure to promote her
to Director of Recreation Centers and Programs was because she is “militant” and
“arrogant,” not because of her speech.
Further, Wilson has not presented any evidence that the performance
evaluations were actually used in the promotion decision or that the comments
regarding Wilson’s protected speech negatively influenced the decision. See Burchett
v. Target Corp., 340 F.3d 510, 518-519 (8th Cir. 2003) (holding that plaintiff
presented insufficient evidence that a negative performance evaluation resulted in
denial of transfer, and “[a] negative performance review is . . . actionable only if the
employer subsequently uses that review to alter the terms or conditions of
employment to the detriment of the employee”); Thomas v. Corwin, 483 F.3d. 516,
529 (8th Cir. 2007) (affirming district court’s grant of summary judgment where there
was “no indication the defendants used [plaintiff’s] evaluation as a basis to alter
detrimentally the terms or conditions of [plaintiff’s] employment”). From the record
before the Court, no reasonable jury could draw an inference that the MPRB and
Miller did not promote Wilson because of comments in her 2012 performance
evaluation.
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B. Failures to Promote, Suspensions, and Performance Improvement Plan
Wilson further alleges that in retaliation for her protected speech, Miller denied
Wilson a promotion and caused Wilson to receive two suspensions, a written
reprimand, and led to the imposition of a performance improvement plan.
Additionally, Wilson asserts that after the newspaper published Wilson’s comments,
Miller posted a job opening on the MPRB’s website in a hidden fashion, hoping that
Wilson would not discover the open position. Miller disputes that Wilson’s protected
speech played a substantial or motivating role in these employment actions.
In her deposition, Wilson did not testify that the claimed adverse employment
actions were in retaliation for her protected speech or that her protected speech was
a substantial or motivating factor in the employment decisions. She asserted that the
MPRB and Miller reprimanded her and denied her a promotion in retaliation for her
reinstatement following a civil service hearing, not acting like a team player, and
being “militant” and “arrogant,” among other reasons unrelated to the comments at the
budget meeting and those published in the newspaper. Thus, the district court found
that Miller was entitled to summary judgment.
Wilson argues that the deposition testimony cited by the district court was not
specifically tailored to her § 1983 claim because she was also asserting a claim for
reprisal pursuant to the Minnesota Human Rights Act. However, Wilson does not
offer any evidence, apart from her Complaint and an email she sent to Human
Resources Manager Teresa Chaika, to support her contention that her protected speech
was a substantial or motivating factor in the claimed adverse employment actions. In
her email to Chaika, Wilson alleged that portions of her 2012 performance evaluation
were retaliatory. However, as discussed above, a negative performance evaluation
does not constitute an adverse employment action unless it causes some tangible effect
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on the conditions of employment, which Wilson has failed to demonstrate.
Furthermore, at the summary judgment stage, Wilson cannot rely solely upon the bare
allegations in her Complaint and her email to Chaika. A plaintiff may not simply cite
“unsupported self-serving allegations, but must substantiate [her] allegations with
sufficient probative evidence.” Reed v. City of St. Charles, Mo., 561 F.3d 788, 790-
91 (8th Cir. 2009) (quoting Bass v. SBC Commc’ns, Inc., 418 F.3d 870, 872-73 (8th
Cir. 2005)); Thomas, 483 F.3d at 527 (“Mere allegations, unsupported by specific
facts or evidence beyond the nonmoving party’s own conclusions, are insufficient to
withstand a motion for summary judgment.”). Moreover, the MPRB and Miller have
proffered non-retaliatory reasons for the alleged adverse employment actions,
including Wilson’s failure to reprimand subordinates appropriately. We need not
reach this stage of the analysis however, because Wilson has failed to establish a
prima facie case of First Amendment retaliation. Without any evidence in the record
probative of Wilson’s allegations, no reasonable jury could find that Wilson’s speech
was a substantial or motivating factor in the claimed adverse employment actions.
Accordingly, Miller is entitled to summary judgment.
III.
We review a district court’s decision not to exercise supplemental jurisdiction
over pendent claims for an abuse of discretion. Williams v. Hobbs, 658 F.3d 842,
852-53 (8th Cir. 2011). A federal district court has discretionary power to decline the
exercise of supplemental jurisdiction where the court has “dismissed all claims over
which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). The factors a court should
consider in determining whether to exercise jurisdiction over pendent state law claims
are judicial economy, convenience, fairness, and comity. Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 350 (1988). “[I]n the usual case in which all federal-law claims
are eliminated before trial, the balance of factors to be considered under the pendent
jurisdiction doctrine . . . will point toward declining to exercise jurisdiction over the
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remaining state-law claims.” Johnson v. City of Shorewood, Minnesota, 360 F.3d
810, 819 (8th Cir. 2004) (quoting Cohill, 484 U.S. at 350 n.7).
Here, all federal claims were dismissed before trial. Wilson points to no factor
that distinguishes this case from the usual case. Therefore, the balance of the factors
indicates that Wilson’s Minnesota Human Rights Act claim properly belongs in state
court. See Cohill, 484 U.S. at 350. Accordingly, the district court did not abuse its
discretion in declining to exercise supplemental jurisdiction over the state law claims.
IV.
For the foregoing reasons, we affirm the judgment of the district court.
SMITH, Circuit Judge, dissenting.
I respectfully dissent from the majority’s holding that no reasonable jury could
infer that Wilson’s poor performance evaluation was in part a result of her protected
speech. At the summary judgment stage, we view the evidence “in the light most
favorable to the nonmoving party.” Davison, 490 F.3d at 654 (quotation and citation
omitted). To view the evidence in the light most favorable to Wilson means, in part,
that we “give [Wilson] the benefit of all reasonable inferences.” See Dace v. ACF
Indus., Inc., 722 F.2d 374, 375 (8th Cir. 1983) (citations omitted). Under this standard,
a reasonable jury could find that Miller retaliated against Wilson for her protected
speech.
As the majority correctly notes, a poor performance evaluation, on its own, does
not constitute an adverse employment action. See Turner, 421 F.3d at 696. But, a poor
performance evaluation does constitute an adverse employment action “where the
employer subsequently uses the evaluation as a basis to detrimentally alter the terms
or conditions of the recipient’s employment.” Id. (quotation and citation omitted).
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Thus, the classification of Wilson’s performance evaluation as an adverse employment
action is tied to its use in the decision not to promote her to the Director of Recreation
Centers and Programs. If the hiring manager used the performance evaluation as a
basis in the hiring decision, it constitutes an adverse employment action.
The majority’s conclusion that Wilson failed to “present[] any evidence that the
performance evaluation[] w[as] actually used in the promotion decision or that the
comments regarding Wilson’s protected speech negatively influenced the decision”
suffers from a significant defect. The majority draws the conclusion without granting
Wilson the benefit of all reasonable inferences. In fact, the majority’s conclusion is
premised on unfavorable inferences drawn from the facts.
First, the majority finds that the comments on Wilson’s 2012 performance
evaluation “were consistent with a 2011 performance review.” From this, the majority
concludes that “[t]he 2011 performance review further indicated that Wilson needed
improvement in the areas of communication and interpersonal skills.” It is unclear if
the majority is saying that Wilson was not promoted because she “needed
improvement in the areas of communication and interpersonal skills” or interpreting
the “consistency” of the reviews as negating a retaliatory motive. Either is
problematic. If the former, the majority has conceded that the 2012 performance
evaluation served “as a basis” in the hiring decision. See id. If the latter, the majority
has unfavorably inferred that the consistency between the 2011 and 2012 performance
evaluations is attributable solely to “Wilson’s demeanor” rather than independently
attributable to Wilson’s protected activity.
Next, the majority’s conclusion rests on an unfavorable interpretation of
Wilson’s deposition testimony. In concluding that “Wilson does not offer any
evidence that the MPRB and Miller would have chosen her as the Director of
Recreation Centers and Programs absent the comments in Wilson’s December 2012
performance evaluation,” the majority finds that Wilson “asserted that the failure to
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promote her . . . was because she is ‘militant’ and ‘arrogant,’ not because of her
speech.” This is a misreading of Wilson’s deposition testimony. At her deposition,
counsel for the MPRB and Miller asked Wilson, “what is [the decision not to select
you for the position of Director of Recreation Centers and Programs] retaliation for?”
The following interchange resulted:
[Wilson.] Again, all of the things that I’ve already mentioned, the fact
that I got my job back, the fact that all—all the things that was—
[Counsel.] The reinstatement?
[Wilson.] The re—the reinstatement, the fact that we went through Civil
Service and the things that she indicated.
[Counsel.] The fact that she believed that you signed off on falsification
of documents?
[Wilson.] Yes. The fact that I’m militant, the fact that I’m arrogant,
all—all of these things were retaliatory in nature . . . .
Wilson’s performance evaluations are part of “all of the things that [she had] already
mentioned.” Earlier in the deposition, counsel asked Wilson if she believed that the
2012 evaluation was retaliation for speaking up at the budget meeting. Wilson
responded, “Absolutely.” Counsel also asked Wilson how the evaluations affected her
ability to receive a promotion. Wilson answered that because of Miller’s “input on
them,” she “was not going to be hired.” Moreover, in paragraphs 46 and 49 of
Wilson’s complaint, she clearly connects the negative performance evaluation that she
received in 2012 to her failure to be promoted. The majority’s interpretation of
Wilson’s deposition testimony not only relies on an unfavorable inference—that her
demeanor that was perceived as militant and arrogant was disconnected from her
raising questions on delicate issues in an open budget meeting—but also is directly
contrary to her complaint.
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Whether the performance evaluation was used in the decision not to promote
Wilson is a material fact in dispute. In order to establish this fact, at this stage, there
need only be evidence from which a jury could reasonably infer such a conclusion.
Wilson meets that low bar. As the majority sets out, Wilson received a poor
performance evaluation because of her protected speech. The performance evaluation
was available to the hiring manager during the hiring process. It is not a stretch to
infer that a hiring manager would consult a candidate’s performance evaluations in
making a hiring decision. After all, part of the purpose of a performance evaluation
is to make it possible to evaluate an employee’s ability to serve the employer, whether
in the employee’s current position or in a promoted position. This inference is
strengthened when it is viewed in the current context—Wilson was one of two
finalists for the Director of Recreation Centers and Programs. The separation between
two finalists may very well be a recent negative performance evaluation. This point
leads to the next. Whether the performance evaluation led to the hiring decision is a
question of causation. Questions of causation should be submitted to a jury unless “the
question is so free from doubt as to justify taking it from the jury.” Naucke v. City of
Park Hills, 284 F.3d 923, 928 (8th Cir. 2002) (quotation and citation omitted). A
reasonable jury could infer that the hiring manager referenced Wilson’s performance
evaluation in making the hiring decision. This question is not so free from doubt to
warrant taking it from the jury.
The majority effectively requires that Wilson establish that the performance
evaluation was improperly used in the hiring decision at the summary judgment stage.
That is not the law. Such smoking-gun evidence rarely exists. See U.S. Postal Serv.
Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983) (noting that “[t]here will seldom
be ‘eyewitness’ testimony as to the employer’s mental processes”). For this reason,
we have long held that questions of motive and causation are peculiarly suited to
resolution by a factfinder. See, e.g., Krenik v. Cty. of Le Sueur, 47 F.3d 953, 959 (8th
Cir. 1995); City of Mt. Pleasant, Iowa v. Associated Elec. Coop., Inc., 838 F.2d 268,
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274 n.5 (8th Cir. 1988); Keys v. Lutheran Family & Children’s Servs. of Mo., 668
F.2d 356, 358 (8th Cir. 1981).
Wilson must also prove that her protected speech was a substantial or
motivating factor in Miller’s decision to take the adverse employment action. See
Davison, 490 F.3d at 654–55. The performance evaluation contains sufficient
evidence to show that Miller based her poor evaluations of Wilson, in part, on
Wilson’s protected speech. Under the sections “Decision Making and Problem
Solving” and “Interpersonal Skills,” Miller gave Wilson a rating of “Needs
Improvement.” In both sections, Miller cited specifically to Wilson’s protected
speech.
Because Wilson has established a prima facie case of First Amendment
retaliation, I respectfully submit that the district court’s grant of summary judgment
should be reversed and remanded for further proceedings.
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