Baker v. Woodbury, City of, The et al, No. 0:2020cv01787 - Document 163 (D. Minn. 2023)
Court Description: ORDER granting 73 Motion for Summary Judgment; denying 121 Motion to Exclude Expert Testimony. (Written Opinion) Signed by Judge David S. Doty on 12/20/2023. (KAD)
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Baker v. Woodbury, City of, The et al Doc. 163 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA CIVIL NO. 20-1787(DSD/DLM) Joseph Paul Baker, Plaintiff, v. ORDER The City of Woodbury; John Wallgren, individually and in his official capacity; Chris Klein, individually and in his official capacity; and J.B. Guiton, individually and in his official capacity, Defendants. Kenneth U. Udoibok, Esq. and Kenneth Ubong Udoibok, P.A., The Flour Exchange, Suite 5010, 310 4th Avenue South, Minneapolis, MN 55415, counsel for plaintiff. Vicki A. Hruby, Esq. and Jardine Logan & O’Brien PLLP, 8519 Eagle Point Boulevard Suite 100, Lake Elmo, MN 55042, counsel for defendants. This matter is before the court upon the motions for summary judgment and to exclude expert testimony by defendants City of Woodbury (City), John Wallgren, Chris Klein, and J.B. Guiton. Based on a review of the file, records, and proceedings herein, the court grants the motion for summary judgment and denies the motion to exclude expert testimony as moot. 1 1 the Plaintiff Joeseph Baker argues that defendants exceeded dispositive motion word-count limitation by filing two Dockets.Justia.com BACKGROUND This action brought under 28 U.S.C. § 1983 arises out of plaintiff Joseph Baker’s employment with the paramedic. The City hired Baker in June 2018. 58:14-19. In emergency Baker addition medical to (1) communication discipline;” to skills, the the demonstrate skills[;]” (3) “promote requisite City (2) a as a Baker Dep. at certifications required “effective City paramedics written and “accept criticism cooperative atmosphere and like oral and/or in the department;” (4) “have a positive attitude;” (5) engage maturely with colleagues; and (5) “work effectively and respectfully with department heads, elected officials, staff, and other dispositive motions. ECF No. 145, at 1 n.1 Defendants filed one motion for summary judgment and one motion to exclude expert testimony. Defendant are permitted to separately brief such motions and properly did so here. Baker, however, effectively exceeded his word-count limitation in opposition to defendants’ motion for summary judgment by filing a 5,972-word opposition memorandum and a 9,748-word affidavit. Parties may not circumvent word-count limitations through narrative affidavits. See BMC Software, Inc. v. Mahoney, No. 15-cv-2583, 2015 WL 3616069, at *1 n.1 (D. Minn. June 9, 2015) (noting that it is “contrary to the spirit, if not the letter,” of Local Rule 7.1(f) to exceed the 12,000 word-count limit by filing a lengthy affidavit that serves as a fact section). The court will consider the affidavit only to the extent it does not contradict facts otherwise in the record. See Herring v. Canada Life Assur. Co., 207 F.3d 1026, 1030 (8th Cir. 2000) (holding that a party “cannot create a ‘sham’ issue of fact in an effort to defeat summary judgment by filing an affidavit directly contradicting prior deposition testimony”); Conolly v. Clark, 457 F.3d 872, 876 (8th Cir. 2006) (“[A] properly supported motion for summary judgment is not defeated by selfserving affidavits.”). 2 agencies[.]” Hruby Decl. Ex. 1, at 2-3; see also Baker Dep. at 58:23-61:16. Baker understood that he would be assessed on how well he performed these essential job duties. Baker Dep. at 61:17-21. Baker was supervised by Emergency (EMS)/Fire Commander Chris Klein. Dep. at 137:10-12. John Wallgren. Medical Services Klein Dep. at 10:12-15; Baker Klein, in turn, reported to EMS/Fire Chief Wallgren Dep. at 7:12-15. Guiton was the Emergency Medical Services (EMS) Commander and also reported to Wallgren. Id. at 9:2-8. As EMS Commander, Guiton responsible for training in the EMS/Fire department. was Id. at 34:9-17. I. Education Group At Guiton’s suggestion, Baker joined the EMS education group in October 2018, after he completed field training. Baker Dep. Baker at 80:8-15, 86:20-25; Wallgren Dep. at 34:2-3. understood that he could choose not to join the group without negative consequences, as it was a voluntary position. Baker Dep. at 78:18-21; see also Trembley Dep. at 13:3-11. In this role, which was under Guiton’s command, Baker facilitated, selected, and conducted paramedic training, along with his colleagues Kevin Asauskas and Lauren Trembley. Baker Dep. at 80:8-25; Asauskas Dep. at 9:17-10:16; Trembley Dep. at 11:11-12:9; Guiton Dep. at 21:19-22:4. 3 The education group also assessed and maintained training documentation for submission to the Emergency Medical Services Regulatory Board (EMSRB). Trembley Dep. at 13:18-14:7. As a member of the education group, Baker had access to the National Registry of Emergency Medical Technicians records for each EMT employed by the City. 86:9. (NREMT) Baker Dep. at 85:11- He would not otherwise have had such access. 86:10-19. Baker education private group rather he than Id. at 84:22-85:4. that education that voluntarily, citizen,” employee. record maintains any Woodbury committee because did in as his a served on the “concerned ... capacity as a City There is no evidence in the citizen absent so he Id. at could have corresponding served employment on the with the City. II. January 2019 Performance Appraisals In January 2019, Baker underwent a six-month evaluation that included a performance appraisal submitted by Klein and a self-appraisal. Baker’s Hruby Decl. Ex. 10. performance, commenting that Klein positively assessed Baker “has an excellent working relationship with his crew members, which gives him the potential for significant positive influence among his peers.” Id. at 4. He also noted that Baker has “solid” ability with a “strong potential for excellence.” 4 technical Id. Baker also received positive reviews for his work in the education group. Id.; Baker Dep. at 113:10-16. In his self-appraisal, Baker noted that he could improve in several areas – only one of which was considered an area of improvement by Klein – including leadership, technical skills, safety, employee involvement, and mentorship. 10 at 6; see also id. at 2-3. Hruby Decl. Ex. Baker believes that his January 2019 self-assessment was later used to retaliate against him for raising concerns about training records, through his work on the education group. which he discovered Baker Dep. at 103:16- 04:19, 106:7-25, 108:14-23. III. Alleged Training Deficiencies On May 13, 2019, Baker told his education group colleagues that he believed there were deficiencies in training records submitted to NREMT. Hruby Decl. Ex. 14; Asauskas Dep. at 11:8- 16; 127:20-28:1. Baker Dep. at Baker was concerned that paramedics may not have attended proper or sufficient courses to maintain their required certifications. 4. Asauskas Dep. at 33:1- Asauskas recommended that Baker raise the issue with Guiton. Id. at 13:23-14:6, 33:9-11. Baker proactively contacted Regions EMS department to arrange for a refresher course before he met with Guiton and the other members of the education group to discuss the perceived training deficiencies. Baker Dep. at 158:1-9, 159:9-13. 5 When Baker called Regions, he said that he did not want the City’s EMS training fraudulent.” records to be “perceived Id. at 158:12-17. as inappropriate or Asauskas was aware that Baker planned to call Regions, but their superiors were not. Id. at 162:12-21. Unbeknownst to Guiton, Baker also sent an email raising concerns about paramedic training to Dr. Burnett, the City’s medical director, a Regions Hospital emergency room physician, and an EMSRB board member. Burnett Dep. at 45:1-46:1; Guiton Dep. at 117:11-20. Baker believed that Dr. Burnett could be helpful was because he familiar requirements, and protocols. with EMS training records, Baker Dep. at 182:19-83:10. Baker explained that he called Regions the day before to inquire about possible refresher courses due to errors in education reporting. Hruby Decl. Ex. 15, at 1. He detailed the perceived training deficiencies and his concern that they could affect necessary certifications. Id. at 1-2. He also denied that he was accusing the City of engaging in fraudulent practices, although he noted that it was a “concern” of his. 2 Id. at 1. Dr. Burnett Baker now claims that he reported the alleged training deficiencies to Dr. Burnett as a whistleblower. Baker Dep. at 195:10-17. He admits, however, that he did not file a complaint with the EMSRB or any other agency. Id. at 195:24-98:4. He now also claims that he made the report to Dr. Burnett “as a concerned citizen, looking out for the City of Woodbury, [his] colleagues and [himself].” Id. at 228:15-21. 2 6 responded by asking Baker to include his chain of command on any email communications with him. at 54:25-55:17. the concerns Hruby Decl. Ex. 4; Burnett Dep. Dr. Burnett acknowledged, however, that some of raised could implicate oversees paramedic certification. the EMSRB board, which Burnett Dep. at 46:13-17. Dr. Burnett then spoke with Guiton about Baker’s email. Burnett Dep. at 47:16-48:5. Dr. Burnett recommended that Guiton self-report the the transparency.” issues to EMSRB Id. at 49:3-7. board in “abundance of Guiton responded that he was aware of Baker’s concerns and would investigate. 3 Id. at 48:7- 13. On May 29, 2019, Baker emailed Guiton explaining why he contacted Regions about his certification concerns but denying that he reported fraud by the City. Hruby Decl. Ex. 16. The two later met in person and, according to Baker, Guiton was upset that Baker independently contacted Dr. Burnett. Dep. at 129:3-6, 132:2-24. Baker Baker alleges that Guiton leaned towards him and said, “You’re lucky I couldn’t get my hands around Baker your throat explained on that Thursday.” he was simply Id. at trying 129:3-6, to 132:2-24. arrange for a Guiton later reported to Dr. Burnett that Baker’s concerns were unfounded and that there were no underlying training issues. Guiton Dep. at 124:9-28:7. Guiton also reported that he notified the EMSRB board of the issues raised in Baker’s email. Burnett Dep. at 49:8-16. 3 7 refresher course through records were accurate. “take care of it,” Dr. Burnett so that Id. at 129:15-18. which Baker training Guiton told Baker to interpreted should falsify recertification records. 4 the to mean that he Id. at 149:5-25. Baker reported Guiton’s threat to Klein and Wallgren the next day. the alleged (HR). who Baker Dep. at 135:9-23, 137:6-20. threat to the City’s Wallgren Dep. at 63:2-6. denied disappointed party. threatening that Baker but an admitted internal Wallgren Dep. at 62:2-22. maintain his professionalism. resources department Wallgren also spoke to Guiton, Baker, took human Wallgren reported that matter to he a was third Wallgren reminded Guiton to Id. at 63:17-24. HR also spoke with Guiton and told him to be cautious about how he speaks with staff. Guiton Dep. at 121:5-22. In September 2019, Wallgren met with Baker, Trembley, and Asauskas to discuss concerns about the training records. Wallgren Dep. at 29:22-30:7, 35:9-22, 36:20. Wallgren asked them writing, to provide more specific Baker did soon thereafter. 42:22-43:3. Wallgren then information in which Id. at 30:2-7, 35:5-8; 36:13-15; met 4 with Guiton to relay Baker’s Soon after he joined the education group, Baker was warned by another paramedic not to “do anything with paramedic training records” if asked to so do by Guiton because “there was a possibility that they would not be legitimate.” Baker Dep. at 90:4-16. Although this so-called warning is rather vague, the conversation may have led Baker to jump to the conclusion that Guiton wanted him to falsify records. 8 concerns. Id. at 34:9-17, 42:3-7. the matter was being addressed. Guiton told Wallgren that Id. at 42:13-16. Despite his ongoing concerns about training records, Baker is unaware of any paramedic who lacked proper certification at any time during his tenure with the City. Baker Dep. at 77:21- 78:2. IV. June 2019 Performance Appraisal In Baker’s June 2019 review, Klein noted that Baker needed to improve resolution. commented with respect to safety Hruby Decl. Ex. 12, at 2. that Baker should “[s]eek and problem/conflict As to the latter, Klein solutions to eliminate workplace/group drama by providing realistic/concrete solutions, while being flexible with co-workers/supervisors insight.” at 4. Id. Klein also commented that Baker should “exclude himself from the workplace ‘drama’” to allow him to maintain focus. Id. at 3. V. Shooting Incident In July 2019, Baker responded to the scene of an officer- involved Baker, shooting. Wallgren was Baker so Dep. upset at that 245:12-18. so many According of the to City’s ambulances were unavailable to take other emergency calls that he called those on the scene to complain. Id. at 245:19-22. Baker alleges that Wallgren’s conduct disrupted patient care. Id. at 245-22-46:12. 9 Baker complained to Klein about Wallgren. 23. Id. at 246:16- He also complained that he felt that the department was, at times, intentionally understaffed. Id. at 252:2-21. Baker believes that his concerns about this incident factored into his perceived performance issues, but there are no supporting facts in the record. Baker’s colleagues reported to Klein that Baker had become “disruptive” due to his belief that the issues he raised about the officer-involved shooting were not being addressed. Dep. at 35:15-36:25. Baker accused Klein of not being available to address his concerns. VI. Klein Id. at 41:1-25. Ketamine Incident On September 22, 2019, Woodbury Police Sergeant and certified paramedic Tom Ehrenberg responded to a call involving someone in a mental health crisis. 10:2-11, 13:6-9. Ehrenberg Dep. at 5:8-6:24, Paramedics were also called, among them Baker. Id. at 14:16-15:2. Ehrenberg volatile.” observed that the Id. at 15:8-12, 27:16-18. person was “extremely As a result, he asked Baker to prepare a sedative in the form of Ketamine to calm the person, if needed. Id. at 15:16-16:11. According to Ehrenberg, Baker’s “body language indicated that he was not prepared and not willing” to do so. Id. at 16:14-16. Ehrenberg and his partner were ultimately able to remove the person from the scene 10 without the use of a sedative. Id. at 21:8-22:8, 30:3-25, 34:18-19. Ehrenberg denies that he instructed Baker to administer ketamine, and maintains that he simply wanted it to be ready if it was needed. Id. at 29:20-30:2; see Hawkinson Dep. at 24:4-10 (testifying that Ehrenberg asked paramedics to have the ketamine “drawn up” due to safety concerns); see id. at 38:9-13 (testifying that Ehrenberg did not order Baker to administer ketamine). Ehrenberg felt communicated more effectively. that he and Baker could have Ehrenberg Dep. at 35:5-15. Baker was upset that Ehrenberg put him in a position to administer Ketamine when assess the patient. he had not been Id. at 36:15-24. able to personally At the time, Baker did not know that Ehrenberg was also a paramedic and therefore able to assess the patient’s need for ketamine. Id. at 36:12-14. Ehrenberg asked to speak with Baker after the incident. 37:11-17. A witness observed the conversation and described it as “pretty intense” and an “argument.” The conversation ended well, however. Baker ketamine ketamine. Id. at admits ready that and Id. at Ehrenberg that he was 261:1-9, Hawkinson Dep. at 37:19. Id. at 37:20-23. simply not asked ordered 264:3-17, him to to administer 270:1-9. nevertheless complained to Klein about the incident. 273:8-13. 11 have Baker Id. at Baker claims unidentified that paramedic “on a number of Baker to directed occasions,” “get [his] ready” before he was able to assess the patient. 255:9-15. Baker refused each time. another ketamine Baker Dep. at Id. at 15-17. He now contends, without factual support, that the City commonly forces ketamine on its citizens. See Compl. ¶¶ 92-93. VII. Performance Improvement Plan On November 19, 2019, Klein placed Baker on a Performance Improvement Plan (PIP) due to his increasingly poor attitude and communication. See Hruby Decl. Ex. 37; Brown Dep. at 8:12-25; Klein Dep. at 34:21-24. summer of 2019. Baker’s attitude began to change in the Wallgren Dep. at 14:16-21. When he was first hired, Baker was “very warm,” “very excited,” “engaged,” and “motivated.” Id. at 15:19-23. Baker “cold” became and Wallgren and his peers. By the summer of 2019, however, “short” in his Id. at 15:8-16:24. communications with Baker also failed to communicate regularly with Klein between July and October 2019, and did not communicate properly through his chain command when addressing perceived EMS training issues. Dep. at 40:15-20, 58:5-59:20. Klein denies that of Klein Baker was placed on the PIP because of his concerns about the EMS training records. Id. at 87:10-20, 97:13-18. In discussing the PIP recommendation with Wallgren and HR, Klein explained that Baker had become persistently focused on 12 the paramedic certification issue. Hruby Decl. Ex. 31. Notwithstanding that, Kelin did not believe that the PIP would implicate Baker certifications, as as a he whistleblower had other interactions” with co-workers. 5 with issues, respect like to EMT “unfavorable Id. Wallgren and Klein met with Baker to discuss the PIP on November 19, 2019. 6 Wallgren Dep. at 12:6-13. the PIP as disciplinary in nature. Neither viewed Id. at 14:2-5; Klein Dep. at 47:14-17. At the meeting, Klein explained that the PIP was due to Baker’s ongoing problem/conflict communication. 7 need to improve resolution, (2) in the following areas: cooperation/safety, Hruby Decl. Ex. 37, at 1. and (1) (3) The PIP states that Baker was required to make immediate changes and that failure to do so could be met with disciplinary action. Id. at 2. As 5 The email in which Klein made these comments reads as follows: “I just want to make sure that my response to placing Joe on a PIP would reflect as him being a ‘whistleblower’ for the EMS education matter.” Id. In his deposition, Klein explained that his email included a typo because he meant to say that the PIP would not reflect that Baker was a whistleblower. Klein Dep. at 85:3-14. Wallgren did not take part in drafting the PIP. Wallgren Dep. at 11:15-12:3. Guiton did not participate in the PIP meeting. Baker Dep. at 278:13-16. 6 7 The PIP does not reference Baker’s allegations about ketamine, the officer-involved shooting, or intentional understaffing. See Hruby Decl. Ex. 37; Baker Dep. at 284:2485:9. 13 reflected in the PIP, the City was not concerned about Baker’s ability to treat patients, but rather his “attitude” and the fact that he was causing “a disruption within the organization and his coworkers.” Baker as designed a “very to Id. at 13:6-12. good help medic.” Baker required discuss respect Baker to to Id. at “reengage[]” effectively with colleagues. With Indeed, Wallgren described 13:6. and PIP communicate was more Id. at 13:19-14:1. problem/conflict schedule accomplishments, The weekly issues previous and upcoming shifts.” resolution meetings and/or with opportunities the PIP Klein “to from the Hruby Decl. Ex. 37, at 3. As to cooperation/safety, the PIP required Baker to schedule monthly meetings and/or with EMS Guiton “to procedures perform that a have review been of previous calls performed.” Id. Similarly, as to communication issues, Baker was required to schedule Sergeant. a monthly meeting with an on-duty Woodbury Police Id. at 5. Baker claims that Klein told him that he was placed on a PIP for refusing to administer ketamine. Baker Dep. at 282:1-4. Other than Baker’s testimony on this point, however, there is no evidence in the record supporting his contention. The PIP does not mention the ketamine incident and there are no emails or other documents that mention the incident vis-à-vis the PIP. 14 Baker was upset that the appraisals from January 2019. PIP referenced his personal Baker Dep. at 285:23-86:18. He maintains that he would not have listed any areas of improvement had he known they would lead to a PIP. Id. at 286:24-87:5. Defendants deny that Baker’s January self-appraisal had anything to do with the November PIP. VIII. Post-PIP Complaint The evening of the PIP meeting, Baker sent an email to HR complaining that he was being mistreated regarding certification deficiencies. due to his reports Hruby Dec. Ex. 38, at 2. He claimed that his concerns went unaddressed and that he was frustrated by the lack of response given that EMS certifications were in jeopardy. Id. He was also frustrated that Guiton was his primary point of contact as to certification issues. Id. He requested a meeting with HR and the City Administrator to address his “mistreatment.” Id. at 3. The next morning, HR manager Brown responded that she would review Baker’s concerns with the public safety director and provide a response “in the near future.” Id. at 1. On November 30, Baker asked Ehrenberg to meet monthly as part of his PIP. Hruby Dec. Ex. 29. He also apologized for any ongoing over issue. tension the ketamine Id. Ehrenberg responded that their issue was resolved amicably and that he was happy to meet with Baker. Id. 15 On December 10, Brown Hruby Decl. Ex. 36, at 3. responded to Baker’s complaint. She noted that the PIP was not a “disciplinary action” and that the PIP was appropriate, easily achievable, and did not constitute mistreatment. Id. at 1. On the issue of certification deficiencies, she responded that his concerns were unfounded and that undergoing an audit to confirm that finding. the City Id. at 4. was With respect to problem/conflict resolution, Brown noted that Baker showed a “[c]onsistent negative attitude,” gave his supervisor “the silent treatment,” sergeant’s directive. As to and responded angrily to a police Id. at 5. Baker’s required meetings with Guiton, Brown concluded that Wallgren should also attend the meetings, given Baker’s history with Guiton. Id. at 4; Baker Dep. at 142:10-16. Despite contends this change, Baker that the City condones physical threats because he was initially required to meet with Guiton one-on-one. IX. Baker Dep. at 140:6-41:8. New Employment On November 20, 2019, the day after the PIP meeting, Baker applied for, and was later offered, an EMT position elsewhere. Hruby Decl. Ex. 39. On December 5, before HR could complete its investigation, Baker submitted his resignation and two weeks’ notice to the City. Hruby Decl. Ex. 44; Baker Dep. at 304:8. The City accepted his resignation, later determining that Baker 16 was not eligible for re-hire due to his communication issues. Klein Dep. at 93:1-13. X. This Action Baker commenced this action on August 17, 2020, alleging that (1) Wallgren, Klein, and Guiton retaliated against him for exercising his First Amendment right to free speech; (2) the City infringed on his civil rights by failing to adequately train, supervise, and discipline its employees in violation of Monell v. Department of Social Services, 436 U.S. 658 (1978), thus leading to the First Amendment violation; and (3) the City violated the Minnesota Whistleblower Act (MWA), Minn. Stat. § 181.932, by constructively discharging him after he complained about paramedic training records. punitive damages, as personnel records and well an as order He seeks compensatory and expungement enjoining of the any City adverse from its “practice of coercing paramedics to sedate unwilling citizens.” ECF No. 1, at 29. Defendants now move for summary judgment and to exclude expert testimony. DISCUSSION I. Standard of Review “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.” 17 Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material only when its resolution affects the outcome of the case. 242, 248 (1986). Anderson v. Liberty Lobby, Inc., 477 U.S. A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party. See id. at 252. On a motion for summary judgment, the court views all evidence and inferences in a light most favorable to the nonmoving party. Id. at 255. The nonmoving party, however, may not rest on mere denials or allegations in the pleadings, but must set forth specific facts sufficient to raise a genuine issue for trial. 477 U.S. at 324. Celotex, A party asserting that a genuine dispute exists - or cannot exist - about a material fact must cite “particular parts of materials in the record.” 56(c)(1)(A). element of because a element If a a plaintiff claim, complete necessarily the cannot court failure renders of must proof all Fed. R. Civ. P. support grant each summary regarding other facts an essential judgment essential immaterial. Celotex, 477 U.S. at 322-23. II. First Amendment Claim Baker claims that defendants Wallgren, Klein, and Guiton retaliated against him for questioning the EMS training records and complaining about Ehrenberg’s request to prepare ketamine by 18 placing him on a PIP, in violation of his right to free speech under the First Amendment. To establish a First Amendment retaliation claim, a public employee, such as Baker, must show that: “(1) he engaged in activity protected by the First Amendment; (2) the defendants took an adverse employment action against him; and (3) the protected conduct was a substantial or motivating factor in the defendants’ decision to take the adverse employment Lyons v. Vaught, 875 F.3d 1168, 1172 (8th Cir. 2017). action.” All three factors are at issue here. A. Protected Activity “First Amendment protection of a public employee’s speech depends on a careful balance ‘between the interests 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.’” Id. (quoting (1968)). Pickering Generally “relinquish First v. Bd. of speaking, Amendment Educ., public rights to 391 U.S. 563, 568 do not employees comment on public interest by virtue of government employment.” matters of Connick v. Myers, 461 U.S. 138, 140 (1983). To determine whether the employee engaged in speech protected by the First Amendment, the court must first consider whether “the employee spoke as a citizen on a matter of public 19 concern.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2014). “If the answer is no, the employee has no First Amendment cause of action based on his ... employer’s reaction to the speech.” Id. If the answer is yes, then a First Amendment claim may be viable if the government entity lacked an “adequate justification for treating the employee differently from any other member of the general public.” Id. “[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline .... Restricting speech that owes its existence to a public employee's ‘professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. 421–22. Id. at “The critical question ... is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.” Franks, 573 U.S. 228, 240 (2014). Lane v. “[D]etermining the scope of an employee’s official duties for these purposes is a practical inquiry that focuses on ‘the duties an employee actually is expected to perform,’ rather than his formal job description. McGee v. Pub. Water Supply Dist. #2, 471 F.3d 918, 921 (8th Cir. 2006) (quoting Garcetti, 457 U.S. at 424-25). “A public employee’s speech is not protected by the First Amendment if it 20 ‘owes its existence’ to his professional responsibilities.” Id. (quoting Garcetti, 457 U.S. at 421). So, the question presented is whether Baker’s stated concerns about the EMS training records and Ehrenberg’s request for him to prepare ketamine were made within the scope of his duties. The record establishes that they were, despite Baker’s insistence that he was acting simply as a concerned citizen regarding both matters. When Baker made statements about the training records, the undisputed facts show that he did so within the scope of his duties as a member of the education group. was responsible for, among other In that role, Baker things, assessing and maintaining training documentation for submission to the EMSRB. Baker discovered those duties. discovery the He without alleged would deficiencies not have to the access been when able training to carrying make records out such of paramedic, along with their corresponding certifications. a each It is undisputed that those detailed records are not available to the general public. Further, Baker reported the alleged deficiencies to his superiors after first discussing it with his fellow education group members, thus tying his concerns directly to his role in the education group rather than merely as a concerned citizen. Under these circumstances, there is no serious debate that Baker’s speech owes its existence to his 21 professional responsibilities and therefore is not protected by the First Amendment. The fact that Baker voluntarily agreed to serve education group does not change the court’s analysis. in the Once he became a member of the group, he had specific responsibilities, including education programming and training documentation, both of which were at issue in his complaints. those matters arose directly from his His concerns about role in the education group and he attempted to resolve them as a member of that group. And, although he now claims that he spoke to Dr. Burton as a concerned citizen rather than a City employee, his email to Dr. Burton does not support this assertion. The email explains Baker’s perceived issues with training records and seeks ways to correct those records. that he is making specifically notes a See Hruby Dec. Ex. 15. report citizen employee, accusations but to find a solution to the issue.” Id. after the Ehrenberg ketamine asked to “intention or not to his a was As that as He does not say incident, draw up Baker complained ketamine. This and to make to Klein occurred squarely within Baker’s role as an EMT and he makes no credible claim to the contrary. Accordingly, Baker’s speech is not protected by the First Amendment and his claim fails on this basis alone. 22 B. Adverse Employment Action Even if Baker’s complaints were made as a concerned citizen rather than a member of the education committee or as an EMT, he has failed to establish that he suffered an adverse employment action. “An working adverse employment conditions disadvantage.” that action is produces a a tangible change material in employment Clegg v. Ark. Dep’t of Corr., 496 F.3d 922, 926 (8th Cir. 2007) (citation omitted). Adverse employment actions typically include “[t]ermination, cuts in pay or benefits, and changes that affect an employee’s future career prospects” and “circumstances amounting to a constructive he suffered discharge.” Id. (citation omitted). Baker claims that two adverse employment actions: (1) the PIP, and (2) constructive discharge. The facts do not support either claim. First, a “PIP employment action.” (8th Cir. 2014). alone does not constitute an adverse Fiero v. CSG Sys., 759 F.3d 874, 880 n.2 “[T]his rule applies with particular force to PIPs that are reasonable and/or minimally onerous.” Bernard v. St. Jude Med. S.C., Inc., 398 F. Supp. 3d 439, 461 (D. Minn. 2019). There is no serious dispute that the PIP here was both reasonable, minimally onerous, and easily achievable. was narrowly tailored to address 23 Baker’s The PIP attitude and communication issues. It required Baker to meet weekly with Klein, monthly with Guiton (later amended to meet monthly with Guiton and Wallgren), and monthly with a police sergeant. Even if these meetings could be considered a change in his duties working conditions, which the court would be hard pressed to find, they were minor changes that were actually beneficial to Baker. See Higgins v. Gonzales, 481 F.3d 578, 584 (8th Cir. 2007) (“Minor changes in unpalatable or significant disadvantage, adverse increase unwelcome employment his duties or ones, do which not” action.”). communications working cause rise to Indeed, with his conditions, no the was superiors, meetings allowed him to do on a regular basis. materially level Baker even of an keen to which these See Baker Dep. at 288:15-22. Baker suggests that the PIP was onerous because it required him to meet one-on-one with interaction months prior. Guiton despite their difficult But HR readily made a change to that requirement to add Wallgren as a participant to the meetings once it was called to their attention. This change shows that the meeting requirement was a simple oversight rather than an attempt to adversely affect Baker’s employment. Baker next argues that he was constructively discharged because he was subject to a hostile work environment. 24 He also bases this argument on the requirement that he meet with Guiton, who threatened him six months prior. “To establish plaintiff] must a show case that of (1) constructive a reasonable discharge, person in [a [his] situation would find the working conditions intolerable, and (2) the employer Rester v. Stephens Media, LLC, 739 F.3d 1127, 1132 (8th Cir. 2014). A claim for proof than intended to constructive an force [him] discharge “unpleasant and to quit.” requires considerably unprofessional more environment.” Jones v. Fitzgerald, 285 F.3d 705, 716 (8th Cir. 2002). constructive discharge arises only when a reasonable would find the conditions of employment intolerable.” “A person Tidwell v. Meyer’s Bakeries, Inc., 93 F.3d 490, 494 (8th Cir. 1996) (citation omitted). has an obligation conclusions too To act reasonably, however, “an employee not to assume quickly.” the worst Id. and (citation to jump to omitted). “[C]onstructive discharge claims fail as a matter of law where the employee has not given the employer a reasonable opportunity to correct the intolerable condition before the employee quits.” Lisdahl v. Mayo Found., 633 F.3d 712, 719 (8th Cir. 2011) (citations omitted). Baker has failed to establish that he was constructively discharged. He argues that Guiton’s single threat, coupled with the PIP, constituted constructive discharge. 25 He characterizes the threat as creating a hostile work environment, particularly given that the PIP required him to meet one-on-one with Guiton. But a hostile “offensive work conduct incidents.” environment consists of does not offhand exist comments when the and isolated Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756, 759 (8th Cir. 2004) (citation omitted). There is no question that Guiton’s threat was an isolated incident. That said, it was far from ideal for the PIP to require Baker to meet alone with Guiton given their history. this issue with HR, but before submitted his resignation. his last day, inappropriate appropriate HR to changes to it could be resolved, he After his resignation, but before agreed require Baker appropriately raised with him the to Baker meet PIP. that with Under it Guiton these would and be made circumstances, Baker did not give the City a reasonable opportunity to correct the issue, which precludes a finding of constructive discharge. In addition, there is no evidence to support a finding that defendants intended to force Baker to quit. There are no emails, documents, or deposition testimony that even hint at any such intention. To the extent Baker bases this claim on the fact that the City determined that he was ineligible for rehire, the court is unpersuaded. The City made that 26 determination after Baker resigned and began working elsewhere. As a result, it had no bearing on the conditions of Baker’s employment. C. Causal Connection There is also no causal connection between Baker’s speech and the alleged adverse employment action. belief, there is no evidence that the Other than Baker’s PIP retaliate against him for his statements. was designed to Rather, the PIP and other relevant documents provide no basis for concluding that defendants record designed is replete the with PIP to retaliate examples of against Baker’s him. attitude The and communication issues that amply support the need for a PIP. 8 III. Monell Claim Baker argues that the City violated Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), by ignoring care employee and complaints, training, and violating retaliating exercising their constitutional rights. standards against in patient employees for His claim is untenable. Under Monell, “a municipality may be held liable for the unconstitutional acts of its officials or employees when those acts implement or execute an unconstitutional municipal policy or custom.” 1999). To Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. establish municipal 8 liability under § 1983 a Given that plaintiff has failed to establish a claim under the First Amendment, the court will not consider arguments relating to qualified immunity. 27 plaintiff must demonstrate that a municipal policy or custom was the “moving force [behind] the constitutional violation.” at 694. In other words, where there is no Id. constitutional violation, there can be no liability under Monell. As discussed violation of above, his First Baker has Amendment failed to rights constitutional violation alleged in this case. establish – the a only As a result, his Monell claim fails as a matter of law. IV. MWA Claim Baker claims that the City violated the MWA by allowing Guiton to threaten him, placing him on a PIP, and forcing him to resign. The MWA protects an employee who, in “good faith, reports a violation, suspected violation, federal or state law ....” or planned violation of any Minn. Stat. § 181.932, subdiv. 1(1). The court analyzes MWA claims under the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Buytendorp v. Extendicare Health Servs., Inc., 498 F.3d 826, 834 (8th Cir. 2007); Cokley v. City of Otsego, 623 N.W.2d 625, 630 (Minn. Ct. App. 2001). Under McDonnell Douglas, a plaintiff must make a prima facie showing of an MWA violation by proving that (1) he engaged in a statutorily protected activity, (2) he suffered an adverse employment action, and (3) there is a causal connection between the two. Eliserio v. United Steelworkers of Am. Local 28 310, 398 F.3d 1071, 1078-79 (8th Cir. 2005); Cokley, 623 N.W.2d at 630. Even if Baker engaged in statutorily protected activity by addressing his concerns about paramedic training, he cannot establish that he suffered an adverse employment action tied to that activity for the reasons already stated above. As a result, his MWA claim also fails. CONCLUSION Accordingly, IT IS HEREBY ORDERED that: 1. The motion for summary judgment [ECF No. 73] is granted; 2. The motion to exclude expert testimony [ECF No. 121] is denied as moot; and 3. The case is dismissed with prejudice. LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: December 20, 2023 s/David S. Doty David S. Doty, Judge United States District Court 29
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