8th Cir. Says Custodian Failed to Show Wife's Comments Led to His Reassignment

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By Jay-Anne Casuga

Nov. 28 — A school custodian in Minnesota who is allergic to bee stings and alleged that he was reassigned to potentially life threatening outdoor work because of his wife's statements during a school board meeting lacks First Amendment retaliation and marital status bias claims, the U.S. Court of Appeals for the Eighth Circuit ruled Nov. 28.

Affirming summary judgment to Independent School District No. 743 and two officials, the Eighth Circuit found that Timothy Skalsky failed to show that his wife's budgetary suggestion, which including having the board share a superintendent and eliminate a principal, was a substantial or motivating factor in the district's decision to reassign him, as required under the Civil Rights Act of 1871 (42 U.S.C. § 1983).

“Skalsky attempts to show pretext by pointing to the fact his job duties were changed shortly after his wife spoke at the school board meeting,” the Eighth Circuit wrote. “[T]emporal proximity alone is not sufficient.”

The appeals court also held that Skalsky didn't establish marital status discrimination under the Minnesota Human Rights Act because he couldn't demonstrate pretext in the stated reasons for his reassignment, namely that certain duties needed to be redistributed after the district eliminated a part-time outdoor custodial position.

Additionally, the court upheld the dismissal of Skalsky's state law tortious interference with a contract claim, finding no evidence that the decision makers knew about Skalsky's bee allergy and acted with malice by reassigning him to outdoor work.

Judge William J. Riley wrote the opinion, joined by Judges Roger L. Wollman and Kermit E. Bye.

Protected Conduct Not Motivating Factor, Court Says

To prevail on his First Amendment retaliation claim, which he based on his right to freely associate with his wife, Skalsky must show that his wife's speech was a substantial or motivating factor in his reassignment, the Eighth Circuit said.

Skalsky argued that superintendent Dan Brooks was upset with him after his wife's comments and that the reassignment occurred six days after the school board meeting.

However, temporal proximity alone can't establish a retaliatory motive, the court said, and Skalsky offered no additional evidence connecting Brooks's purported animosity to the reassignment.

The record shows the school district was having financial problems and made budget cuts that included eliminating the part-time custodian responsible for outdoor tasks, the court said. The district reallocated those duties to remaining qualified employees, including Skalsky, it said.

Marital Status Bias Claim Also Fails

Turning to Skalsky's MHRA marital status discrimination claim, the appeals court found he failed to rebut as pretextual the school district's proffered legitimate, nondiscriminatory reason for his assignment.

“Skalsky attempts to show pretext by pointing to the fact his job duties were changed shortly after his wife spoke at the school board meeting,” it said. “Again, temporal proximity alone is not sufficient.”

Skalsky also questioned an official's contention that he was the best qualified custodian for outdoor work, but the court said “simply questioning” a decision maker's opinion can't establish pretext.

No Malice for Tortious Interference Claim

Finally, the Eighth Circuit affirmed the dismissal of Skalsky's tortious interference with a contract claim because he couldn't prove that officials acted with malice when they reassigned him.

Skalsky contended that officials knew about his bee sting allergy and that “only those motivated by malice” would have assigned him duties that potentially could threaten his life, the court said.

But it observed that Skalsky had no work restrictions and never asked a medical provider to excuse him from performing outdoor work.

“Because the record does not contain evidence showing [officials] knew about the allergy or its severity at the time of reassignment, Skalsky failed to produce sufficient evidence to indicate [they] acted with malice,” the court said.

Warner Law Office represented Skalsky. Hanson Bolkom Law Group and Arthur & Chapman represented the school district and officials.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/Timothy_Skalsky_v_Independent_School_District_et_al_Docket_No_130.