United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-1828

___________

Vicky Meyers, *

*

Plaintiff - Appellant, *

* Appeal from the United States 

v. * District Court for the 

* District of Nebraska.

Nebraska Health and Human Services; *

Joyce Starke, Individually and in Her * [TO BE PUBLISHED]

Official Capacity; Kathy Carter, *

Individually and in Her Official *

Capacity; and Darren Duncan, *

Individually and in His Official *

Capacity, * 

*

Defendant - Appellee. *

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Submitted: October 8, 2002

Filed: March 28, 2003

___________

Before BYE, LAY, and RILEY, Circuit Judges.

___________

BYE, Circuit Judge.

Vicky Meyers appeals from the entry of summary judgment in favor of

defendants on her claims of retaliation and constructive discharge. We reverse in part

and affirm in part, and remand for trial.
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I

Vicky Meyers worked as a Protection and Safety Worker for the State of

Nebraska Department of Health and Human Services (HHS) from May 29, 1998, until

she resigned on May 9, 2000. For most of that time Meyers was an "ongoing" case

worker, meaning she monitored children in the care of HHS over the long term.

Meyers was part of each child's Treatment Team that made placement and treatment

recommendations to the courts. In that capacity Meyers appeared in court hearings

as a representative of HHS and the Treatment Team. 

In late 1999 Meyers came to disagree with the rest of the Treatment Team on

the best placement for two brothers living with a foster family. Her supervisors

agreed with the Treatment Team and, Meyers avers, pressured her to change her

opinion. In early February 2000, a court hearing was held to determine where the

brothers would be placed. During the hearing Meyers told the presiding judge the

opinion of the Treatment Team and, at the judge's insistence, her own differing

opinion. In late February, Meyers's supervisors changed her job duties from ongoing

cases to "intake" duties. She alleges the change in responsibilities was a demotion

in retaliation for her testimony regarding the brothers' placement. 

As their titles would suggest, the duties of ongoing and intake workers differ.

Ongoing workers are assigned to cases over the long-term and are more involved in

making foster home placement and care decisions than intake workers. Ongoing

workers appear in court as representatives of HHS, whereas intake workers do not.

The duties of an intake worker include: being the first contact, by phone and in

person, with members of the public reporting abuse and neglect of children;

documenting all the information; evaluating the report; making the initial

determination of appropriate service or response; directing callers to community and

government resources; and referring new cases to an investigator or ongoing case

worker as appropriate. 
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Meyers was paid the same in her new intake position as she had been as an

ongoing worker. Her benefits and title remained the same, and she was not

reprimanded either orally or in writing. She even remained in the same office where

she had worked before the change in duties. 

Meyers proffered some evidence showing her move to the intake position was

a demotion. A supervisor told her the intake assignment was not considered a "full

load" so they would find other "tasks" for her to do. Before her reassignment to

intake duties, they were handled by a switchboard receptionist and a case aide with

far less education, training and experience than Meyers. Meyers found the transfer

from ongoing to intake personally demeaning, belittling and punitive, and avers other

workers in the office looked at her differently following her reassignment.

Once transferred to her new duties Meyers was, she claims, micromanaged to

a degree that made her continued employment intolerable, so she resigned. There is

some evidence Meyers was "pulled out" of one training session, and asked not to

attend another. But there is no evidence regarding the relevance or importance of the

training or whether she was treated differently than coworkers. The sole evidence of

micro-management was when her supervisor once told her not to use a yellow

highlighter in a ledger used to record new cases.

Meyers filed this action pursuant to 42 U.S.C. § 1983 alleging the HHS and

three supervisors violated her right to free speech under the First Amendment of the

U.S. Constitution. She claims she was reassigned in retaliation for her testimony

about the brothers' placement, and was then micromanaged and purposefully made

so uncomfortable she was forced to resign. 

The claims against HHS and the supervisors in their official capacities were

dismissed early in the proceedings. The remaining defendants – the supervisors in

their individual capacities – filed a motion for summary judgment on the ground they
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were entitled to qualified immunity. The magistrate judge, presiding by consent,

found Meyers failed to establish a constitutional violation because her reassignment

to intake was not an adverse employment action. Therefore, the magistrate judge

ruled the defendants enjoy qualified immunity from this action. On appeal, Meyers

contends the magistrate judge erred by finding the reassignment was not adverse. 

II

We review a grant of summary judgment de novo, applying the same standard

as the district court. Jaurequi v. Carter Mfg. Co. Inc., 173 F.3d 1076, 1085 (8th Cir.

1999). Rule 56(c) of the Federal Rules of Civil Procedure provides that summary

judgment shall be awarded to a party if there exists no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law. When

ruling on a summary judgment motion, a court must view the evidence "in the light

most favorable to the nonmoving party." Dush v. Appleton Elec. Co., 124 F.3d 957,

962-63 (8th Cir. 1997) (citing F.D.I.C. v. Bell, 106 F.3d 258, 263 (8th Cir. 1997)).

However, a "nonmovant must present more than a scintilla of evidence and must

advance specific facts to create a genuine issue of material fact for trial." Bell, 106

F.3d at 263 (quoting Rolscreen Co. v. Pella Prods. of St. Louis, Inc., 64 F.3d 1202,

1211 (8th Cir. 1995)). 

Qualified immunity shields government officials from suit unless their conduct

violates a clearly established constitutional or statutory right of which a reasonable

person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To

establish a violation of a constitutional right, a plaintiff must show "she was engaged

in constitutionally protected activity, that [the government official's] adverse action

caused her to suffer an injury which would 'chill a person of ordinary firmness from

continuing . . . in that activity,' and that the adverse action was motivated in part by

. . . [the] exercise of her constitutional rights." Carroll v. Pfeffer, 262 F.3d 847, 850

(8th Cir. 2001) (quoting Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998)).
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A public employee's speech is protected by the First Amendment if it is on a

matter of public concern. Connick v. Myers, 461 U.S. 138, 146 (1983). In order for

speech to be on a matter of public concern, the speech must "be fairly considered as

relating to any matter of political, social, or other concern to the community." Id. If

it is, Meyers's right to comment on those matters must "be balanced with [HHS's]

interest in 'promoting the efficiency of the public services it performs through its

employees.'" Sparr v. Ward, 306 F.3d 589, 594 (8th Cir. 2002) (quoting Pickering v.

Bd. of Educ. of Township High Sch. Dist. 205, 391 U.S. 563, 568 (1968)). The

magistrate judge found, and we agree, Meyers's testimony to a court concerning the

proper placement of the two foster brothers was a matter of public concern that

outweighed the HHS's interest in promoting efficiency and was therefore protected

by the First Amendment. See Bowman v. Pulaski Co. Special Sch. Dist., 723 F.2d

640, 644 (8th Cir. 1983) (holding question of what constitutes proper care and

education of children is area of public concern). 

For purposes of the motion for summary judgment defendants do not dispute

the supervisors decided to reassign Meyers to intake because of her protected speech.

As found by the magistrate judge, the timing of the reassignment, coupled with

evidence of statements made at the time by the parties, does support a conclusion the

supervisors changed Meyers's duties because of her speech. The only issue

remaining, then, is whether the reassignment from ongoing cases to intake was an

adverse action.

Acts short of termination may constitute adverse employment actions, however,

not everything that makes an employee unhappy is actionable. Montandon v.

Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997). Loss of status and prestige

alone do not rise to the level of an adverse employment action. Ledergerber v.

Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997). To be actionable, the employment

action must be "a material change in the terms or conditions of her employment." Id.;

Fisher v. Pharmacia & Upjohn, 225 F.3d 915, 919 (8th Cir. 2000) (holding a transfer
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or reassignment may rise to the level of an adverse employment condition if it is "a

significant change in working conditions."). The magistrate judge found Meyers's

reassignment to intake was not an adverse employment action because her pay,

benefits and job title did not change, she was not reprimanded, and the difference in

duties was not material. The magistrate judge concluded the transfer was merely an

inconvenience that dissatisfied Meyers.

It is true Meyers's tangible employment terms and conditions – her pay and

benefits – did not change when she was reassigned. But whether the changes in the

intangible employment conditions were significant or material remains a disputed

material fact. A supervisor told her the intake assignment was not considered a "full

load," so they would have to find other "tasks" for her to do. Before her

reassignment, intake duties were handled by a switchboard receptionist and a case

aide with far less education, training and experience than Meyers. This evidence of

a considerable downward shift in skill level required to perform her new job

responsibilities, coupled with evidence of a work load reduced to the degree

supervisors had to find other "tasks" to keep her busy, are sufficient to support a

finding Meyers's reassignment was a significant and material change in her

employment conditions. See Fisher, 225 F.3d at 919-20; see also Dahm v. Flynn, 60

F.3d 253, 257 (7th Cir. 1994) (noting employment action involving "a dramatic

downward shift in skill level required to perform job responsibilities can rise to the

level of an adverse employment action, even if the time required to perform the duties

remains constant."); Fyfe v. Curlee, 902 F.2d 401, 405 (5th Cir. 1990) (concluding

transfer from a "productive, satisfying position to a menial make-work one" is an

adverse employment action for the purposes of § 1983 First Amendment claim). It

is therefore appropriate for a jury to decide whether the reassignment was material.

We reverse summary judgment on this claim and remand for trial. 

 Meyers's constructive discharge claim rests on a significantly weaker

foundation. Even if she was reassigned in violation of her First Amendment rights,
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there is insufficient evidence her working conditions in intake were deliberately made

intolerable with the intent of making her leave. Knowles v. Citicorp Mortgage, Inc.,

142 F.3d 1082, 1086 (8th Cir. 1998) ("A constructive discharge occurs when an

employer deliberately renders an employee's working conditions intolerable with the

intent of forcing the employee to leave the employment."). 

Whether working conditions are sufficiently objectionable to support a

constructive discharge claim is determined by an objective standard, not the

employee's subjective feelings. Spears v. Mo. Dep't of Corr. and Human Res., 210

F.3d 850, 854 (8th Cir. 2000). The only evidence of an intolerable working

environment in this case is: (1) she didn't like the reassignment; (2) she was told not

to use a yellow highlighter in the ledger of new cases; (3) she was told not to attend

two training sessions, the relevance of which is unknown; and (4) she was criticized

by supervisors. Together, these facts do not meet the objective standard for an

intolerable work environment. See id.; Breeding v. Arthur J. Gallagher & Co., 164

F.3d 1151, 1160 (8th Cir. 1999) (noting "'a feeling of being unfairly criticized or

[enduring] difficult or unpleasant working conditions are not so intolerable as to

compel a reasonable person to resign."' (quoting Carter v. Ball, 33 F.3d 450, 459 (4th

Cir. 1994))). We therefore affirm summary judgment on the constructive discharge

claim.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.