United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-2264
___________
Edward Charles McDonald, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
City of Saint Paul and *
Mayor Christopher B. Coleman, *
*
Appellees. *
___________
Submitted: February 15, 2012
Filed: May 10, 2012
___________
Before RILEY, Chief Judge, WOLLMAN, and SMITH, Circuit Judges.
___________
WOLLMAN, Circuit Judge.
Edward C. McDonald appeals the district court’s1 order granting summary
judgment to defendants—the City of St. Paul (the City) and Mayor Christopher
Coleman (the mayor)—on various claims arising from McDonald’s unsuccessful
application for appointment as director of the City’s Department of Human Rights
and Equal Economic Opportunity, as well as denial of his motion to compel various
depositions. We affirm.
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
I.
In 2002 and 2003, McDonald worked for the City as its director of the Office
of Affirmative Action and the Coordinator of Minority Business Development and
Retention. In 2003, after the termination of his employment, McDonald brought a
lawsuit against the City and city officials, alleging violations of the Minnesota
Whistleblower Protection Act, the Civil Rights Act of 1866, and the Civil Rights Act
of 1871. In 2004, the parties to that action executed a settlement agreement and
release of all claims, in which they agreed that the agreement and release did not
constitute an admission of liability by any of the parties.
In August of 2008, the city council adopted an ordinance creating the
Department of Human Rights and Equal Economic Opportunity (the Department).
The city council then passed a resolution that “the City should engage in a community
process in order to select a director for the newly formed Department of Human
Rights and Equal Economic Opportunity.” City Resolution of Aug. 8, 2008.
Councilmember Melvin Carter III was appointed to chair the thirteen-member
committee—consisting of community members and stakeholders—to “recommend
to the Mayor a list of finalists.” McDonald’s App’x 261.
Shortly thereafter, information about the creation of the Department and the
director-selection process appeared on the City’s website. It indicated that the mayor
and city council had appointed a selection committee; that “[t]he 12-member
committee is charged with hosting a series of community meetings to engage the
public and advising Human Resources on the recruitment, screening and selection of
the best possible candidate”; that “[n]ew and amended ordinances will be proposed
in the fall to support the departmental framework”; that the City hoped to appoint a
director for the Department by January of 2009; and that “[t]he new director will
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serve 3-year terms at the recommendation of the mayor and will be vetted through a
community selection process similar to that for the City’s police and fire chiefs.”2
In September of 2008, McDonald applied for the position of director of the
Department. The selection committee received thirty-one applicants for the position.
The selection committee interviewed eight applicants, including McDonald.
Selection committee member Susan Kimberly, against whom McDonald had filed a
workplace conduct complaint during his tenure with the City, recused herself from
McDonald’s November 14, 2008, interview before the committee. Kimberly did
participate in the remainder of the selection committee’s activities. During
McDonald’s interview, another committee member asked McDonald about his 2003
whistleblower action.
After the screening interviews, the selection committee certified three finalists
to the mayor: McDonald, Hope Jensen, and Lynn Littlejohn. Each of the three
finalists appeared at a community interview forum on December 9, 2008, at which
2
Chapter 12 of the Saint Paul City Charter sets forth the procedures used to
select the City’s police and fire chiefs when a vacancy arises. First, the city council
establishes and appoints an examining and qualifications committee. Saint Paul,
Minn., City Charter § 12.12.1 (amended 2009). The committee then provides
competitive examinations to test the relative fitness of the police chief and fire chief
candidates, grades the candidates, and certifies the five best-qualified candidates to
the mayor. Saint Paul, Minn., City Charter § 12.12.2 (amended 2009). Once five
candidates are certified to the mayor, the mayor is required to appoint one of the
certified candidates, subject to the approval of the city council. Saint Paul, Minn.,
City Charter § 12.12.3 (amended 2009). “If the council does not approve the
appointment, the mayor shall in turn appoint each of the remaining candidates, each
subject to council approval.” Saint Paul, Minn., City Charter § 12.12.3 (amended
2009). “If the council approves none of the candidates, the candidate who has
received the highest grading by the committee shall be appointed without further
action by the mayor or council.” Saint Paul, Minn., City Charter § 12.12.3 (amended
2009).
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councilmember Carter stated that one of the three would become the director of the
Department. On December 11, 2008, Mayor Coleman and Deputy Mayor Ann
Mulholland also interviewed each of the three finalists. Mayor Coleman offered the
position to Jensen, who declined to accept it. The mayor then offered the position to
Littlejohn, who also declined, leaving McDonald as the sole remaining finalist.
Councilmember Carter, in an interrogatory response, explained his decision to
reconvene the selection committee:
[S]ometime after December 31, 2008, and before January 5, 2009,
Councilmember Carter believes he and the Mayor spoke, perhaps
through a staffer, about the dilemma of suddenly having only one viable
finalist. Since the Selection Committee’s charge was to produce a slate
of 3-5 candidates for the Mayor to choose from, Councilmember Carter
determined the committee’s work was yet incomplete and informed the
Mayor’s Office that, barring their objection, Councilmember Carter
intended to reconvene the committee to complete its work.
Councilmember Carter then reconvened the Selection Committee.
McDonald’s App’x 272. The selection committee identified Paula Forbes, Luz Frias,
and Sharon Garth as additional finalists. Forbes then withdrew from consideration,
leaving Frias and Garth as the two additional finalists certified to the mayor. Prior
to an interview with the mayor, Garth withdrew. Mayor Coleman and Deputy Mayor
Mulholland interviewed Frias and ultimately offered her the director position. Frias
accepted and became the director.
McDonald brought the current action against the City and the mayor in April
2009, alleging (1) violations of his rights to equal protection and procedural and
substantive due process under 42 U.S.C. § 1983 and the Fourteenth Amendment to
the United States Constitution, resulting from his engagement in protected activity;
(2) conspiracy to deny him an employment opportunity with a public institution
because of engagement in protected activity, in violation of 42 U.S.C. § 1985; (3)
violations of Title VII (42 U.S.C. §§ 2000(e) et seq. and 2000e-3(a)) of the Civil
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Rights Act of 1964; (4) violation of Title IX of the Education Amendments of 1972
(20 U.S.C. § 1681 et seq.); (5) violation of the Minnesota Human Rights Act
(MHRA) (Minn. Stat. §§ 363A.14(1) and 363A.15(a)); (6) violation of his rights to
equal protection and substantive due process under Article I, Section 2 of the
Minnesota Constitution; and (7) intentional infliction of emotional distress under
Minnesota law. The district court granted defendants’ motion for summary judgment
on all claims.
II.
“We review the district court’s grant of summary judgment de novo, applying
the same standards as the district court and viewing the evidence in the light most
favorable to the nonmoving party.” Zike v. Advance Am., Cash Advance Ctrs. of
Mo., Inc., 646 F.3d 504, 509 (8th Cir. 2011) (quoting Travelers Prop. Cas. Co. of Am.
v. Gen. Cas. Ins. Co., 465 F.3d 900, 903 (8th Cir. 2006)). “The 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(a).
III.
A. Due Process
McDonald contends that the mayor and the City violated his right to due
process under the United States Constitution and the Minnesota Constitution3 by
3
“The due process protection provided under the Minnesota Constitution is
identical to the due process guaranteed under the Constitution of the United States.”
Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 453 (Minn. 1988) (citing Anderson
v. City of St. Paul, 32 N.W.2d 538, 541 (Minn. 1948)); see also Minneapolis Taxi
Owners Coalition, Inc. v. City of Minneapolis, 572 F.3d 502, 510 (8th Cir. 2009)
(same).
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failing to appoint him to the director position after Jensen and Littlejohn—who, along
with McDonald, composed the initial list of finalists—had declined the mayor’s offer.
Defendants argue that McDonald never had a constitutionally protected property
interest in a potential position of employment with the City.
To recover under § 1983, a plaintiff must prove “(1) violation of a
constitutional right, (2) committed by a state actor, (3) who acted with the requisite
culpability and causation to violate the constitutional right.” Shrum ex rel. Kelly v.
Kluck, 249 F.3d 772, 777 (8th Cir. 2001) (citing Bd. of Cnty. Comm’rs. v. Brown,
520 U.S. 397, 403-04 (1997)). “Analysis of either a procedural or substantive due
process claim must begin with an examination of the interest allegedly violated.”
Dover Elevator Co. v. Ark. State Univ., 64 F.3d 442, 445-46 (8th Cir. 1995) (citing
Carolan v. Kansas City, 813 F.2d 178, 181 (8th Cir. 1987)).
“The possession of a protected life, liberty or property interest is a condition
precedent to the government’s obligation to provide due process of law, and where
no such interest exists, there can be no due process violation.” Dobrovolny v. Moore,
126 F.3d 1111, 1113 (8th Cir. 1997) (citing Movers Warehouse, Inc. v. City of Little
Canada, 71 F.3d 716, 718 (8th Cir. 1995)). Property interests “are not created by the
Constitution. Rather they are created and their dimensions are defined by existing
rules or understandings that stem from an independent source such as state law—rules
or understandings that secure certain benefits and that support claims of entitlement
to those benefits.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972);
see also Craft v. Wipf, 836 F.2d 412, 417 (8th Cir. 1987) (citations omitted) (noting
that “[a] state may also create a constitutionally protected interest by establishing
statutory or regulatory measures that impose substantive limitations on the exercise
of official discretion.”). “To have a property interest in a benefit, a person clearly
must have more than an abstract need or desire for it. He must have more than a
unilateral expectation of it. He must, instead, have a legitimate claim of entitlement
to it.” Roth, 408 U.S. at 577; see Schueller v. Goddard, 631 F.3d 460, 462-63 (8th
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Cir. 2011) (“A protected property interest exists where a plaintiff has a legitimate
claim of entitlement to a benefit that is derived from a source such as state law.”)
(citations and internal quotations omitted).
Viewing the record in the light most favorable to McDonald, we conclude that
McDonald had no protected property interest in the director position. The resolution
naming the selection committee indicated that “the City should engage in a
community process in order to select a director,” that the selection committee would
“oversee said community process,” and that the selection committee would
“recommend to the Mayor a list of finalists.” McDonald’s App’x 261 (emphasis
added). The statement on the City’s website indicated that the director “will be vetted
through a community selection process similar to that for the City’s police and fire
chiefs.” McDonald’s App’x 264 (emphasis added). The St. Paul Code of
Ordinances, which outlines the mayor’s appointment power, requires that “[t]he
mayor shall appoint, with the advice and consent of the council, to the positions of
city attorney and all heads of executive departments, which appointees shall serve at
the mayor’s pleasure, except as provided otherwise in this Charter.” St. Paul Code
of Ordinances, Sec. 3.01.3. Nothing in the resolution or the statement concerning
appointment of the director or in the ordinance concerning the mayor’s general
appointment power mandated defendants to strictly apply the sections of the City
Charter governing the selection of police and fire chiefs, precluded the selection
committee from certifying additional finalists,4 or prohibited the mayor from
4
Councilmember Carter’s alleged statement at the community forum that one
of the three finalists certified at that time would become the director does not alter
this conclusion. See McMenemy v. City of Rochester, 241 F.3d 279, 286 (2d Cir.
2001) (noting that “even if the Chief at one time intended to promote [plaintiff] and
even if he expressed that intention as a promise, the City’s broad discretion in matters
of promotion, granted by statute, prevent that promise from ripening into an
entitlement.”) (citations omitted). The ordinance governing the mayor’s appointment
power required mayoral appointment and city council approval as pre-requisites to
assuming the position of director.
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considering additional finalists certified by the selection committee. To the contrary,
the statement, resolution, and applicable ordinance left considerable discretion to the
selection committee in certifying finalists, the mayor in appointing from a list of
finalists, and the city council in approving the mayor’s selection. Even if the mayor
was constrained to appoint from the initial list of three finalists, the fact that an
appointment from that list still would have been subject to the approval of the city
council prevents McDonald from possessing a legitimate claim of entitlement to the
director position. See Roth, 408 U.S. at 577; Schueller, 631 F.3d at 462-63.
Accordingly, we affirm the district court’s grant of summary judgment to defendants
on McDonald’s due process claims.
B. Equal Protection
McDonald claims that the City and the mayor violated his right to equal
protection of the laws under the Fourteenth Amendment to the United States
Constitution and under the Minnesota Constitution.5 McDonald alleged in his
complaint that defendants violated his right to equal protection “because of his
engagement in protected activity,” i.e. his 2003 lawsuit against the City and various
city officials. Compl. ¶ 33. He did not assert a racial discrimination claim arising
from his status as an African-American.6
5
The Minnesota Court of Appeals has explained that “‘[e]qual protection is an
inherent but unenumerated right found and confirmed in Minnesota’s state
constitution.’” Studor, Inc. v. State of Minn., 781 N.W.2d 403, 408 (Minn. Ct. App.
2010) (quoting Murphy v. Comm’r of Human Servs., 765 N.W.2d 100, 106 (Minn.
Ct. App. 2009)).
6
We note that McDonald did raise the issue of race in his depositions and some
subsequent motions and arguments, including his appellate brief, but our
consideration of his equal protection claim is limited to the retaliation theory asserted
in his complaint.
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“In general, the Equal Protection Clause requires that state actors treat similarly
situated people alike.” Ganley v. Minneapolis Park and Recreation Bd., 491 F.3d
743, 747 (8th Cir. 2007) (quoting Bogren v. Minnesota, 236 F.3d 399, 408) (8th Cir.
2000)). As a threshold matter, McDonald must demonstrate that the defendants
treated him differently than similarly situated candidates. Ganley, 491 F.3d at 747;
see State v. Cox, 798 N.W.2d 517, 521 (Minn. 2011) (noting that “to establish that
[plaintiff] has been denied equal protection of the laws, [plaintiff] must show that
similarly situated persons have been treated differently”) (citation omitted). If he
satisfies this threshold inquiry, McDonald must then demonstrate intentional or
purposeful discrimination. See Cent. Airlines, Inc. v. United States, 138 F.3d 333,
335 (8th Cir. 1998).
Defendants contend that McDonald presented no evidence that he was denied
the director position because of his 2003 lawsuit. In response, McDonald notes that
various individuals involved in the director selection process were members of the
city council or employed by the City in 2003. Specifically, McDonald notes that
Kimberly, against whom McDonald had filed a workplace conduct complaint during
his employment with the City, served on the selection committee. But Kimberly
recused herself from McDonald’s interview, and despite Kimberly’s participation on
the selection committee, the committee ultimately certified McDonald as a finalist for
the director position. The mayor retained the power to appoint from the list of
finalists, and there is no evidence that the mayor’s decision to appoint Frias rather
than McDonald was influenced by McDonald’s lawsuit against the City and its
officials or by McDonald’s workplace-conduct complaint against Kimberly in 2003.
Because McDonald has not presented evidence that he was treated differently from
similarly situated candidates or that he was the victim of intentional or purposeful
discrimination, his equal protection claim fails as a matter of law.7
7
McDonald stated in his interrogatory answers that defendants violated his right
to equal protection by failing to appoint him director after Jensen and Littlejohn had
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C. Conspiracy
McDonald claims that defendants violated 42 U.S.C. § 1985(3) by
“conspir[ing] to deny Plaintiff an employment opportunity with a public institution
because of his engagement in protected activity,” thus “depriv[ing] Plaintiff, directly
or indirectly, of due process and equal protection of the laws, and of the privileges
and immunities secured to Plaintiff under the laws of the United States.”
Compl. ¶ 39. McDonald stated in an interrogatory answer that the alleged conspiracy
was based on the fact that the mayor did not appoint him director “because of the
work place conduct complaint [McDonald] had filed against the city.” Defs.’ App’x
32.
To establish a conspiracy under § 1985(3), McDonald must prove: (1) the
existence of a conspiracy; (2) that the purpose of the conspiracy was to deprive him
of his civil rights; (3) an act in furtherance of the conspiracy; and (4) injury. Andrews
v. Fowler, 98 F.3d 1069, 1079 (8th Cir. 1996) (citing Griffin v. Breckenridge, 403
U.S. 88, 102-03 (1971)). McDonald also “must show that the conspiracy is fueled by
some ‘class-based, invidiously discriminatory animus.’” Id. (quoting Bray v.
Alexandria Women’s Health Clinic, 506 U.S. 263, 268 (1993)).
We conclude that McDonald’s assertion that defendants conspired against him
to deprive him of the director position because of his previous complaint against the
City does not demonstrate a class-based invidiously discriminatory animus. We agree
with our sister circuits that have held that status as a whistleblower does not entitle
one to protection under § 1985. See Bryand v. Military Dep’t of Miss., 597 F.3d 678,
687 (5th Cir. 2010) (holding that “status as a whistleblower does not entitle [plaintiff]
declined the mayor’s offer. As explained above, however, defendants were not bound
to apply section 12.12.3 of the City Charter to the selection of the director. No equal
protection violation occurred as a matter of law.
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to protection under § 1985(2)”); Childree v. UAP/GA AG CHEM, Inc., 92 F.3d 1140,
1147 (11th Cir. 1996) (declining “to apply § 1985(3) to whistleblowers as a class”);
Hicks v. Resolution Trust Corp., 970 F.2d 378, 382 (7th Cir. 1992) (holding that
“status as a ‘whistleblower’ does not entitle [plaintiff] to civil rights protection under
§§ 1985(3) and 1986” because whistleblowers “do not possess any of the
characteristics—i.e. race, national origin or gender—which are traditionally part and
parcel of discrete and insular minorities”) (citations omitted). Thus, we affirm the
district court’s grant of summary judgment to defendants on McDonald’s conspiracy
claim.
D. Title VII and MHRA Reprisal
McDonald alleges that defendants violated Title VII by “den[ying] and
interfer[ing] with Plaintiff’s attempt to avail himself to and benefit from an
employment opportunity with a public institution because of his engagement in
protected activity,” in violation of 42 U.S.C. § 2000(e) et seq., and by “retaliat[ing]
against Plaintiff because Plaintiff is an individual who has engaged in protected
activity,” in violation of 42 U.S.C. § 2000e-3(a). Compl. ¶¶ 42, 45. He also asserted
that defendants violated the MHRA, Minn. Stat. § 363A.15, by “intentionally
engag[ing] in a reprisal against Plaintiff because Plaintiff had asserted his rights
previously under Minn. Stat. § 363A et seq.” Compl. ¶ 51. In his interrogatory
answers, McDonald asserted that the factual basis for these claims consists of his not
being appointed to the director position because of his 2003 whistleblower complaint.
McDonald’s Title VII and MHRA retaliation claims are properly analyzed
under the McDonnell Douglas burden-shifting framework. See Fercello v. Cnty. of
Ramsey, 612 F.3d 1069, 1077 & n.3 (8th Cir. 2010) (citing McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973)); Hoover v. Norwest Private Mortg. Banking, 632
N.W.2d 534, 548 (Minn. 2001) (“A reprisal claim is analyzed under the McDonnell
Douglas burden-shifting test.”) (citation omitted). Under that framework, “an
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employee has the initial burden of establishing a prima facie case of retaliation.”
Fercello, 612 F.3d at 1077 (citing Kasper v. Federated Mut. Ins. Co., 425 F.3d 496,
502 (8th Cir. 2005)). To establish a prima facie case of retaliation, an employee must
show:
(1) she engaged in protected conduct; (2) she suffered materially adverse
employment action, action that would deter a reasonable employee from
making a charge of employment discrimination or harassment; and (3)
the materially adverse action was causally linked to the protected
conduct.
Id. at 1077-78 (citing Weger v. City of Ladue, 500 F.3d 710, 726 (8th Cir. 2007)).
The district court properly held that McDonald cannot demonstrate a prima
facie case of retaliation under either Title VII or the MHRA. McDonald presented
no evidence that the mayor’s decision not to appoint McDonald was causally linked
to McDonald’s whistleblower claim, which was made more than five years earlier.
See Tyler v. Univ. of Ark. Bd. of Trustees, 628 F.3d 980, 986-87 (8th Cir. 2011)
(concluding that more evidence than mere temporal proximity was needed to create
a genuine issue of material fact on causal nexus for a retaliation claim when a period
of nearly three years passed between the protected activity and the alleged retaliatory
act). McDonald alleges that a selection committee member asked McDonald a
question about the whistleblower claim during his interview. There is no evidence,
however, that this negatively influenced McDonald’s application, for the selection
committee ultimately certified McDonald as a finalist. Thus, summary judgment was
properly granted to defendants on McDonald’s Title VII and MHRA reprisal claims.8
8
The district court also correctly declined to consider McDonald’s unpleaded
allegations of Title VII and MHRA gender discrimination, which were not raised until
his opposition to defendants’ motion for summary judgment. See N. States Power
Co. v. Fed. Transit Admin., 358 F.3d 1050, 1057 (8th Cir. 2004) (“[W]hile we
recognize that the pleading requirements under the Federal Rules are relatively
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E. MHRA Aiding and Abetting
McDonald contends that the district court erred in granting defendants
summary judgment on his claim that they violated Minn. Stat. § 363A.14 by aiding
and abetting practices forbidden by the MHRA. An underlying MHRA claim is a
prerequisite to a claim of aiding and abetting violation of the MHRA. See Minn. Stat.
§ 363A.14. As discussed above, summary judgment was proper on McDonald’s
underlying MHRA reprisal claim. Accordingly, we affirm the grant of summary
judgment to defendants on McDonald’s MHRA aiding-and-abetting claim.
F. Title IX
In his complaint, McDonald alleges that defendants violated Title IX of the
Education Amendments of 1972, 20 U.S.C. §§ 1681-88, by “discriminat[ing] against
[him] and . . . den[ying] and interfer[ing] with his attempts to participate in and avail
himself to the benefits of a federally financed public institution because of his
engagement in protected activity.” Compl. ¶ 48. Under Title IX, “[n]o person in the
United States shall, on the basis of sex, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any education program or
activity receiving federal financial assistance . . . .” 20 U.S.C. § 1681(a); See Lam
v. Curators of the Univ. of Mo., 122 F.3d 654, 656 (8th Cir. 1997) (“In order for sex
discrimination to be actionable under Title IX, the discrimination must be connected
with an ‘education program or activity receiving Federal financial assistance.’”)
(quoting § 1681(a)). Because McDonald did not present any evidence raising a
genuine issue of material fact as to whether he was denied the director position on the
basis of sex or whether any such discrimination was connected with an education
permissive, they do not entitle parties to manufacture claims, which were not pled,
late into the litigation for the purpose of avoiding summary judgment.”).
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program or activity receiving federal financial assistance, summary judgment to
defendants was proper on McDonald’s Title IX claim.
G. Intentional Infliction of Emotional Distress
Under Minnesota law, a claim for intentional infliction of emotional distress
requires proof of four elements: “(1) the conduct must be extreme and outrageous;
(2) the conduct must be intentional or reckless; (3) it must cause emotional distress;
and (4) the distress must be severe.” Langeslag v. KYMN Inc., 664 N.W.2d 860, 864
(Minn. 2003) (quoting Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 438-39
(Minn. 1983)). An intentional infliction of emotional distress claim is “‘sharply
limited to cases involving particularly egregious facts,’” and a “‘high threshold
standard of proof’ is required to submit the claim to a jury.” Id. (quoting Hubbard,
330 N.W.2d at 439). “Conduct is extreme and outrageous when it is so atrocious that
it passes the boundaries of decency and is utterly intolerable to the civilized
community.” Id. at 865 (internal quotations omitted).
McDonald’s claim for intentional infliction of emotional distress does not meet
the high threshold standard of proof required to submit such a claim to a jury. The
mayor’s decision to appoint Frias rather than McDonald to the director position does
not constitute extreme and outrageous conduct as a matter of law, and McDonald has
not identified any severe emotional distress suffered as a result of not being appointed
to the position. Accordingly, we affirm the district court’s grant of summary
judgment to defendants on this claim.
H. Discovery Motions
McDonald also argues that the district court abused its discretion in denying
his motions to compel the depositions of Mayor Coleman, councilmember Carter, and
council President Landry. We cannot review McDonald’s challenge to the magistrate
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judge’s9 order denying this non-dispositive pre-trial motion because McDonald failed
to file any objections to such order before the district court. Under Rule 72(a) of the
Federal Rules of Civil Procedure, after a magistrate judge issues a written order
deciding a pretrial matter not dispositive of a party’s claim, “[a] party may serve and
file objections to the order within 14 days after being served with a copy.” Fed. R.
Civ. P. 72(a). “A party may not assign as error a defect in the order not timely
objected to.” Id. Because McDonald did not timely file timely objections before the
district court, he may not challenge the order on appeal. See Daley v. Marriott Int’l,
Inc., 415 F.3d 889, 893 n.9 (8th Cir. 2005) (quoting Pagano v. Frank, 983 F.2d 343,
346 (1st Cir. 1993) (“[W]hen . . . a litigant could have tested a magistrate’s ruling by
bringing it before the district judge, but failed to do so within the allotted [now 14-
day] period in Rule 72(a), he cannot later leapfrog the trial court and appeal the ruling
directly to the court of appeals.”)).
IV.
The judgment is affirmed.
______________________________
9
The Honorable Franklin L. Noel, United States Magistrate Judge for the
District of Minnesota.
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