Kathy Davison v. City of Minneapolis, Minnesota Rocco Forte, in His Individual and Official Capacities

490 F.3d 648, 26 I.E.R. Cas. (BNA) 344, 182 L.R.R.M. (BNA) 2139, 2007 U.S. App. LEXIS 14459, 2007 WL 1757421
CourtCourt of Appeals for the Eighth Circuit
DecidedJune 20, 2007
Docket06-2368
StatusPublished
Cited by205 cases

This text of 490 F.3d 648 (Kathy Davison v. City of Minneapolis, Minnesota Rocco Forte, in His Individual and Official Capacities) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kathy Davison v. City of Minneapolis, Minnesota Rocco Forte, in His Individual and Official Capacities, 490 F.3d 648, 26 I.E.R. Cas. (BNA) 344, 182 L.R.R.M. (BNA) 2139, 2007 U.S. App. LEXIS 14459, 2007 WL 1757421 (8th Cir. 2007).

Opinions

[651]*651GRUENDER, Circuit Judge.

Kathy Davison appeals from the district court’s grant of summary judgment in favor of Rocco Forte and the City of Minneapolis (“Appellees”) on her claims of unlawful retaliation in violation of the First Amendment rights to freedom of speech and freedom of association. The district court found that she failed to present a prima facie case of retaliation. For the reasons discussed below, we affirm in part and reverse in part.

I. BACKGROUND

Viewed in the light most favorable to Kathy Davison, see Hughes v. Stottlemyre, 454 F.3d 791, 793 (8th Cir.2006), the facts are as follows. Davison has been employed with the City of Minneapolis Fire Department (“the Fire Department”) since 1986 and has held the rank of Captain since 1999. She has been a member of the International Association of Fire Fighters Local 82 (“the Union”) throughout her employment, during which Rocco Forte served as the Chief of the Fire Department. During the spring and summer of 2002, in response to budget constraints, Chief Forte proposed a plan to close Ladders 7 and 8 and purchase several quints,1 which necessitated laying off firefighters (“the Plan”). Captain Davison actively and publicly opposed the Plan and asserts that she repeatedly was denied promotion to the position of Arson Investigator in retaliation for her outspoken and public opposition.

Captain Davison became active in opposing the Plan beginning in the fall of 2002. On October 3, 2002, Captain Davison attended a public meeting, also attended by Chief Forte, and voiced her opposition to the Plan, specifically arguing that it would result in longer response times by the Fire Department. Union President Tom Thornberg provided evidence that Chief Forte approached him after the meeting and said, “You really need to get your board under control. Kathy and [her son] were at a neighborhood meeting.” Union President Thornberg went on to explain that “Chief Forte was upset with the Union and in particular Captain Davison for her position against [the Plan].... Chief Forte was visibly upset regarding the comments Captain Davison made at the meeting when he made this statement to me.”

On October 14, 2002, the Union created the Committee to Oppose the Closing of Ladders 7 and 8, and Union President Thornberg appointed Captain Davison as head of this committee. Among other projects associated with this new role, Captain Davison organized the creation and distribution of flyers criticizing the Plan. The flyers warned citizens that the Plan would “decrease the safety of our community and firefighters” and urged them to contact their local City Council member to express disapproval of the Plan. Chief Forte saw this flyer when it was brought into his office and assumed that the Union committee was responsible for its creation. News Channel 9 in Minneapolis interviewed, filmed and ran a story about Captain Davi-son and her flyer-distribution efforts.

The following month, Captain Davison attended another public meeting during which Chief Forte attempted to dispel accusations that response times for medical emergencies would increase as a result of the Plan by promising that he would station a Hennepin County ambulance to service the areas previously covered by Lad[652]*652ders 7 and 8. Captain Davison stood before the crowd and explained that Chief Forte did not have the authority to decide where ambulances are stationed. Hennepin County Commissioner Mark Stenglein, who was present at the meeting, then stood up and confirmed that Captain Davi-son was correct. Also in November, Captain Davison attended and spoke out against the Plan at two other public meetings, one of which Chief Forte attended. Her efforts against the Plan were also featured in the Southwest Journal, a local magazine.

At the same time, the Fire Department announced in October 2002 that it was soliciting candidates for the position of Arson Investigator. The City of Minneapolis’s Human Resources Department (“Human Resources”) follows a standard procedure for filling municipal positions, including those with the Fire Department.2 The procedure requires applicants first to complete a written pass/fail examination. Those who pass must then complete a scored practical examination covering hypothetical fire emergencies. The practical examination score is weighted as ninety percent of a candidate’s final score, with seniority accounting for the remaining ten percent. Human Resources then ranks the candidates by their final scores and compiles them into a list of certified candidates. The names and scores of the top three certified candidates are forwarded to the Fire Department, which then interviews those three candidates. A three-member panel that consists of two fire chiefs and one human resources representative conducts the interviews.3 Chief Forte is not on the interview- panel. The panel grades the answers of the candidates and then forwards both the examination and interview scores to Chief Forte, who makes the ultimate decision on which candidate to select. According to his testimony, Chief Forte simply selects the candidate with the highest interview score “100% of the time.”

For the Arson Investigator position, nine candidates passed the written examination and completed the scored practical examination. Human Resources certified Captain Davison as the candidate with the highest examination score. The panel interviewed the top three candidates: first-ranked Captain Davison, second-ranked Jennifer Cornell and third-ranked Tim Thomas. Thomas received the highest interview score of 87.66, while Cornell received a score of 87 and Captain Davison received a score of 84. Chief Forte did not select Thomas, the candidate with the highest interview score, but instead promoted Cornell.4

[653]*653In February 2003, a second Arson Investigator position opened. Human Resources certified Captain Davison, Thomas and William Lindberg as the first-, second — and third-ranked candidates, respectively, based on their practical examination scores. Because the panel had just recently interviewed Captain Davison and Thomas, they only interviewed Lindberg. Lind-berg scored an 82 on the interview, behind Thomas’s 87.66 and Captain Davison’s 84 from the prior round of interviews. This time Chief Forte did select the candidate with the highest interview score and promoted Thomas.

After the two failed promotion attempts, Captain Davison’s public opposition to the Plan continued and increased. In March 2003, Captain Davison participated in a rally protesting the Plan and expressed her concerns to the City of Minneapolis Mayor R.T. Rybak, who is a member of the City Council’s Executive Committee, the entity responsible for the appointment and removal of the Fire Chief. Minneapolis, Minn. Charter, ch. 3, § 4; ch. 4 § 4. That same month, Captain Davison’s protest of the Plan at a City Council meeting attracted media attention. For example, the St. Paul newspaper, Pioneer Press, ran a story on the front page of its local news section that included several quotations and photographs of Captain Davison, and Minnesota Public Radio (“MPR”) aired an interview with Captain Davison. Captain Davison attended two more City Council meetings on April 1 and April 14, 2003, where she similarly spoke out against the Plan.

In the spring of 2003, Ladder 8 was closed pursuant to the Plan.

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490 F.3d 648, 26 I.E.R. Cas. (BNA) 344, 182 L.R.R.M. (BNA) 2139, 2007 U.S. App. LEXIS 14459, 2007 WL 1757421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kathy-davison-v-city-of-minneapolis-minnesota-rocco-forte-in-his-ca8-2007.