8th Cir: dimissal proper for demoted Child Welfare Worker

Welfare worker's suit dismissed 08/23/05 Vicky Meyers v. Joyce Starke U.S. Court of Appeals Case No. 04-2770 District of NebraskaLINCOLN (AP) - A state welfare worker who said she was demoted after testifying in court cannot sue over the action, The 8th Circuit ruled. The 8th U.S. Circuit Court of Appeals ruled in the case of Vicky Meyers, a caseworker for the Nebraska Health and Human Services System in Gering from May 1998 until she quit in May 2000. Meyers was an "ongoing" caseworker, meaning she was part of a team that made recommendations to the courts for the care and treatment of foster children. During a court hearing in late 1999, Meyers told the judge that she differed with her team on the best course of action for two brothers living with a foster family. Later that month, Meyers' supervisors changed her job from handling ongoing cases to "intake" duties, which primarily involved answering the phones and referring calls and cases to other caseworkers.She was paid the same amount and kept her title, but she alleged the change in responsibilities was a demotion in retaliation for her testimony in court.Meyers found the transfer "personally demeaning, belittling and punitive" and said she was treated differently and micromanaged to a degree that forced her to resign."Meyers filed a complaint in the United States District Court for the District of Nebraska alleging violations of 42 U.S.C. § 1983 and her First Amendment right tofree speech. Meyers sued NHHS, and also sued Starke, Duncan, and Carter in boththeir official and individual capacities. Meyers alleged she had been unlawfullydemoted for exercising her right to comment on a matter of public concern– children'swelfare. She sought damages for lost wages and benefits, injury to reputation, loss of enjoyment of life, inconvenience, and embarrassment." the 8th circuit had previously heard this case following the the Pl's appeal as to whether summary judgment was appropriate on the issue of whether she had suffered an adverse employment action for her actions. However, we reversed and remanded for trial holding that disputed fact questions remained as to whether there had been an adverse employment action whenMeyers's job duties were changed. Meyers v. Nebraska Health & Human Servs., 324 F.3d 655 (8th Cir. 2003)Meyers argues that our holding in the prior appeal determined that appellees' actions were motivated by her speech on a matter of public concern that outweighedNHHS's interests. Meyers further argues that this holding was not challenged in the first appeal and cannot be challenged in this appeal. Whether Meyers's speech was protected is a question of law. Lewis v. Harrison Sch. Dist. No. 1, 805 F.2d 310, 313 (8th Cir. 1986). We have already held that Meyers's speech was protected. Meyers, 324 F.3d at 659. The magistrate judge permitted the factual issue of causation—whether appellees' actions were motivated by Meyers's speech—to go to the jury. The jury deadlocked. The magistrate judge refused to grant either party's Rule 50(b) motion on this fact issue. The magistrate did not err. Plaintiff then sought to amend her complaint to add a count of civil conspiracy, 42 usc 1985; the magistrate denied: Federal Rule of Civil Procedure 15 provides that a party may amend by leave of court which shall be freely given when justice requires. Justice does not require itin this case. Here any conspiracy claim under 42 U.S.C. § 1985(2) is barred under theintracorporate conspiracy doctrine, which allows corporate agents acting within thescope of their employment to be shielded from constituting a conspiracy under §1985. Cross v. General Motors Corp., 721 F.2d 1152, 1156 (8th Cir. 1983). We haveextended the intracorporate conspiracy doctrine to governmental entities. See RunsAfter v. United States, 766 F.2d 347, 354 (8th Cir. 1985); Richmond v. Bd. of Regents,957 F.2d 595, 598 (8th Cir. 1992). Because appellees are employees of NHHS, theyare protected by the intracorporate conspiracy doctrine. The magistrate judge did noterr in denying the motion to amend.. The 8th Circuit ruled in 2003 that there was no evidence that Meyers was forced to resign and ordered a lower court to hear her claim that she was demoted. And on Tuesday, a three-judge 8th Circuit panel upheld a ruling by U.S. Magistrate Thomas Thalken dismissing the case. The 8th Circuit said it found no evidence that HHS officials violated her free speech rights by demoting her. "In order to establish a claim for unlawful First Amendment retaliation, a public employee must show that [she] suffered an adverse employment action that was causally connected to [her] participation in a protected activity." Duffy v. McPhillips, 276 F.3d 988, 991 (8th Cir. 2002). "An adverse employment action is exhibited by a material employment disadvantage, such as a change in salary, benefits, or responsibilities." Bradley v. Widnall, 232 F.3d 626, 632 (8th Cir. 2000) (emphasis in original). "Changes in duties or working conditions that cause no materially significant disadvantage . . . are insufficient to establish the adverse conduct required to make a prima facie case." Id. (quoting Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994)). "In order to establish a claim for unlawful First Amendment retaliation, a public employee must show that she suffered an adverse employment action," wrote Judge Lavenski Smith. "An adverse employment action is exhibited by a material employment disadvantage, such as a change in salary, benefits, or responsibilities." Although Meyers' title and functions changed, her salary and benefits did not, Dissenting Judge Bye wrote it was inappropriate to enter judgment as a matter of law when the Plaintiff's testimony of adverse employment action provided some evidence of a civil rights violation: -9- At trial, the jury heard Meyers testify she did not have a full workload and her job responsibilities decreased significantly. The majority dismisses this testimony as a mere scintilla of evidence, inadequate to support a jury verdict. I would not classify the plaintiff’s sworn testimony at trial a mere scintilla of evidence. A plaintiff’s testimony often provides ample evidence to support a jury verdict. See Webner v. Titan Distrib. Inc., 267 F.3d 828, 836 (8th Cir. 2001). In discrediting Meyers’s testimony the majority essentially usurps the jury’s role as factfinder. United States v. Martinez, 958 F.2d 217, 218 (8th Cir. 1992) (“It is the sole province of the jury to weigh the credibility of a witness.”). A significant number of jurors found her testimony to be compelling to the point it could not breakthe deadlock existing among them even after the announcement it could accept lessthan a unanimous verdict. I would therefore vacate the magistrate judge’s entry ofjudgment as a matter of law in favor of defendant Carter and remand for a new trial. Meyers' lawyer, Joy Shiffermiller, did not immediately return a call seeking comment.