1

The Honorable Thomas D. Thalken, United States Magistrate Judge for the

District of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-2770

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Vicky Meyers, * 

* 

Appellant, * 

* Appeal from the United States

v. * District Court for the 

* District of Nebraska.

Joyce Starke, Individually and in her * 

official capacity; Kathy Carter, * 

Individually and in her official * 

capacity; Darren Duncan, Individually * 

and in his official capacity, * 

* 

Appellees. *

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Submitted: June 23, 2005

Filed: August 23, 2005

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Before MURPHY, BYE, and SMITH, Circuit Judges.

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SMITH, Circuit Judge.

Vicky Meyers appeals the decision of the magistrate judge1

 granting judgment

as a matter of law pursuant to Federal Rule of Civil Procedure 50 in favor of

Nebraska Health and Human Services (NHHS), Joyce Starke, Kathy Carter, and
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Darren Duncan (appellees). For reversal, Meyers argues that the magistrate judge

erred: (1) in considering whether Meyers's speech motivated appellees' action; (2) in

ruling that amending the complaint to include conspiracy claims was futile under the

intracorporate conspiracy doctrine; (3) in excluding issues relevant only to Meyers's

proposed amended complaint from the pretrial order; (4) in granting appellees' motion

for judgment as a matter of law; and (5) in overruling Meyers's Rule 50 motion for

judgment as a matter of law and motion for a new trial. We affirm.

I. Background

Starting in May 1998, Meyers worked for NHHS as a Protection and Safety

Worker (PSW) in its Gering office. In that position, Meyers monitored children in the

custody and care of NHHS. She served as part of the NHHS staff group (Treatment

Team) that made placement and treatment recommendations to the courts for children.

In that role, Meyers appeared at court hearings and testified as a representative of

NHHS and the Treatment Team. Joyce Starke and Darren Duncan supervised Meyers

in Gering. Kathy Carter, the NHHS Protection and Safety Administrator for the

Western Service Area, supervised Starke and Duncan and was responsible for

personnel decisions in the Gering local office.

 In late 1999, Meyers disagreed with the Treatment Team's recommendation

for the best regimen for two children exhibiting dysfunctional behaviors in their

foster placement. Meyers believed that therapeutic placement was preferable to their

current situation. Starke and Duncan agreed with the Treatment Team. Meyers alleges

that the remainder of the Treatment Team strongly urged her to change her mind and

agree with them. At a December 1999 court hearing to determine placement, Meyers

testified to the opinion of the Treatment Team, but when pressed by the judge, she

claimed that she had been pressured to change her opinion to conform with that of the

other Treatment Team members. However, Meyers also testified that the children

could receive appropriate treatment in their current placement. In February 2000,
2

Even if Meyers spoke out on a matter of public concern, her interests are

outweighed "if the [appellees] show that [the] speech so severely damaged office

harmony and working relationships that [appellees'] interest in promoting an effective

workplace outweighs [Meyers's] First Amendment rights." Hyland v. Wonder, 972

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Meyers's supervisors transferred her from Ongoing Services to Intake. Meyers

resigned from NHHS on May 9, 2000. 

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 to

free speech. Meyers sued NHHS, and also sued Starke, Duncan, and Carter in both

their official and individual capacities. Meyers alleged she had been unlawfully

demoted for exercising her right to comment on a matter of public concern– children's

welfare. She sought damages for lost wages and benefits, injury to reputation, loss of

enjoyment of life, inconvenience, and embarrassment. 

The appellees filed a motion to dismiss, and the district court dismissed all

claims against NHHS and the appellees in their official capacities. The case was then

tried by a United States magistrate judge by agreement. The apellees filed a motion

for summary judgment alleging they were entitled to qualified immunity, which was

granted. However, we reversed and remanded for trial holding that disputed fact

questions remained as to whether there had been an adverse employment action when

Meyers's job duties were changed. Meyers v. Nebraska Health & Human Servs., 324

F.3d 655 (8th Cir. 2003). 

Although we reversed the magistrate judge, we agreed that as a matter of law,

speech regarding the care of children is a matter of public concern. Bowman v.

Pulaski County Special Sch. Dist., 723 F.2d 640, 644 (8th Cir. 1983). The appellees

neither challenged this holding, nor did they offer evidence that NHHS's interest in

promoting workplace efficiency outweighed Meyers's right to speak on a public issue,

and the magistrate judge failed to find that it did.2 Meyers, 324 F.3d at 659. 
F.2d 1129, 1139 (9th Cir. 1992), cert. denied, 113 S. Ct. 2337 (1993). The employer

bears the burden of proving that the balance of interests weighs in its favor. Johnson

v. Multnomah County, 48 F.3d 420, 426 (9th Cir. 1995). 

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On remand, after Meyers presented her case-in-chief, the magistrate judge

dismissed all claims against Starke and Duncan pursuant to Fed. R. Civ. P. 50. When

the remaining parties rested their respective cases, each moved for judgment as a

matter of law under Rule 50. The magistrate judge took the matter under advisement

and submitted the case to the jury. The jury deadlocked. Meyers renewed her motion

for judgment as a matter of law and moved for a new trial. Carter also renewed her

motion for judgment as a matter of law. The magistrate judge granted judgment as a

matter of law in favor of Carter, determining that no reasonable jury could conclude

that Meyers had suffered an adverse employment action. Meyers then instituted the

instant appeal.

II. Discussion

We review a grant of judgment as a matter of law under Fed. R. Civ. P. 50 de

novo. Walsh v. Nat'l Computer Sys., Inc., 332 F.3d 1150, 1157 (8th Cir. 2003) (citing

Kipp v. Missouri Highway & Transp. Comm'n, 280 F.3d 893, 896 (8th Cir. 2002)).

"[We draw] 'all reasonable inferences in favor of the nonmoving party, and [do] not

make credibility determinations or weigh the evidence." Kipp, 280 F.3d at 896. We

"assume that the jury resolved all conflicts of evidence in favor of the [nonmoving]

party, assume as true all facts which the prevailing party's evidence tended to prove,

. . . and deny the motion, if in light of the foregoing, reasonable jurors could differ as

to the conclusion that could be drawn from the evidence." Minneapolis Cmty. Dev.

Agency v. Lake Calhoun Assoc., 928 F.2d 299, 301 (8th Cir. 1991). 

A. Whether Appellees' Actions were Motivated by Meyers's Speech

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 outweighed

NHHS's interests. Meyers further argues that this holding was not challenged in the
3

 42 U.S.C. § 1985 (2) is violated

[i]f two or more persons in any State or Territory conspire to deter, by

force, intimidation, or threat, any party or witness in any court of the

United States from attending such court, or from testifying to any matter

pending therein, freely, fully, and truthfully, or to injure such party or

witness in his person or property on account of his having so attended

or testified, or to influence the verdict, presentment, or indictment of any

grand or petit juror in any such court, or to injure such juror in his

person or property on account of any verdict, presentment, or indictment

lawfully assented to by him, or of his being or having been such juror;

or if two or more persons conspire for the purpose of impeding,

hindering, obstructing, or defeating, in any manner, the due course of

justice in any State or Territory, with intent to deny to any citizen the

equal protection of the laws, or to injure him or his property for lawfully

enforcing, or attempting to enforce, the right of any person, or class of

persons, to the equal protection of the laws.

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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.

B. Amending the Complaint

At trial, Meyers moved to amend her complaint by adding a cause of action

under 42 U.S.C. § 1985(2),3

 alleging interference with giving court testimony as a

witness. The magistrate judge denied the motion. Meyers argues that the magistrate

judge erred because the factual allegations of the complaint did not change and

always stated a cause of action under 42 U.S.C. § 1985(2). We disagree.
4

Similarly, Meyers failed to discuss the overruling of her Rule 50 motion and

her motion for new trial. Instead, Meyers argues about jury instructions. Aside from

failing to comply with Fed. R. App. P. 28(a)(5), we find that the evidence does not

support a grant of judgment as a matter of law in Meyers's favor.

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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 it

in this case. Here any conspiracy claim under 42 U.S.C. § 1985(2) is barred under the

intracorporate conspiracy doctrine, which allows corporate agents acting within the

scope 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 have

extended the intracorporate conspiracy doctrine to governmental entities. See Runs

After 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, they

are protected by the intracorporate conspiracy doctrine. The magistrate judge did not

err in denying the motion to amend. 

C. Exclusion of Issues from the Pretrial Order

In her brief, Meyers states the next issue as "[w]hether the trial court erred in

sustaining the defendant's objection to controverted issues no. 7 and 8 to insert the

issue of whether the defendants conspired to interfere by threat, force of intimidation

to keep the plaintiff from testifying on any matter pending freely, fully and

truthfully." Federal Rule of Appellate Procedure 28(a)(5) requires an appellant to

include in its brief a statement of the issues presented for review. To be reviewable,

an issue must be presented in the brief with some specificity. Failure to do so can

result in waiver. Sweet v. Delo, 125 F.3d 1144, 1159 (8th Cir. 1997). Meyers's brief

focused exclusively on one already addressed—whether Meyers spoke on a matter

of public concern. Consequently, we consider this issue to be waived.4
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Meyers's coworkers testified regarding the Intake position. Lisa Bell, who had

been a PSW for thirteen years, described Intake as the "cornerstone" of child

protective case work. Bell testified that she did not consider Intake a lesser position

because it was the "foundation of everything." Bell also testified that coworkers'

feelings toward Meyers did not change after the reassignment. John Zach testified

that he had been a PSW for eighteen years and had performed all three child

protection functions. Zach indicated that Intake was a critical phase and was not

demeaning. Zach also did not think less of Meyers after her reassignment. Former

Intake PSW, Pat Anderson, testified that Intake was important and not demeaning.

She stated that no one "looked down on" Meyers or thought less of her when she was

reassigned to Intake. Kelly Case, who had been a PSW for nineteen years also

testified. She had performed all three child protection functions. Case indicated that

when she first began working at NHHS, supervisors also worked in Intake. Case

stated that Intake was neither demeaning nor a lesser assignment, and no one looked

down on Meyers after being reassigned to Intake. 

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D. Granting Appellees' Motion for Judgment as a Matter of Law

Meyers contends she adduced sufficient probative evidence to have a jury

determine whether the appellees violated her free speech rights. Because the record

is clear that Starke and Duncan did not have the authority to transfer Meyers, we

agree with the decision of the magistrate judge granting judgment as a matter of law

in their favor.

The magistrate judge also granted Carter's Rule 50(b) motion. Carter, who did

have the authority to reassign Meyers, argues that Meyers suffered no material job

change and thus could not show an adverse employment action. While Meyers's title

and functions changed, her salary and benefits did not. Other NHHS employees

testified that Meyers was not demoted and that the child welfare responsibilities of

Intake were just as important as those fulfilled by workers performing Ongoing

Services or serving in other system positions.5
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When drawing all reasonable inferences in favor of Meyers, Kipp, 280 F.3d at

896, we are left with the conclusion that the magistrate judge did not err in granting

Carter's Rule 50(b) motion. The evidence, taken in the light most favorable to Meyers

showed that Meyers's new position, an Intake PSW, receives reports of suspected

child abuse or neglect and determines NHHS's response. An Intake PSW must have

the skills to gather the information necessary to perform a thorough investigation. An

Intake PSW receives seventeen weeks of specialized training. Finally, an Intake PSW

must possess the identical educational background as an ongoing services worker—a

bachelor's degree in the field of human services. 

"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)).

Meyers testified that in Intake, she did not have a full workload. However,

Meyers's testimony is uncorroborated. "A mere scintilla of evidence is inadequate to

support a verdict[.]" Clark v. Kansas City Missouri Sch. Dist., 375 F.3d 698, 701 (8th

Cir. 2004) (quoting Larson v. Miller, 76 F.3d 1446, 1452 (8th Cir. 1996)); see also

O'Bryan v. KTIV Television, 64 F.3d 1188, 1191 (8th Cir. 1995) (uncorroborated

statements are insufficient to create an issue of material fact). Meyers also testified

that Intake was handled by a receptionist and a case aide. We do not find any

evidence in the record for this conclusion. Meyers actually testified that the

receptionist and case aide only took calls when the Intake worker was unavailable.
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The receptionist and case aide then turned over any information they had to the Intake

PSW. The evidence clearly shows that a PSW has always worked Intake and that

Anderson was the full-time Intake worker from 1998 until Meyers was reassigned to

Intake. 

For these reasons, we affirm the decision of the magistrate judge.

BYE, Circuit Judge, concurring in part, dissenting in part.

I fully concur in parts II.B and II.C, concur in the conclusion reached by the

majority in part II.A, however respectfully dissent from most of part II.D. In regard

to part II.A, I agree Vicky Meyers’s actions were constitutionally protected, but

would not rely on the dicta in Meyers v. Nebraska Health & Human Servs., 324 F.3d

655, 659 (8th Cir. 2003) (Meyers I), to reach this result. In regard to part II.D, I agree

the magistrate judge properly entered judgment as a matter of law in favor of

defendants Starke and Duncan, who did not have the authority to transfer Meyers, but

disagree as to Carter, the defendant responsible for transferring Meyers. 

Nothing has changed since our decision in Meyers I where we found “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.” Id. at 660. 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
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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 break

the deadlock existing among them even after the announcement it could accept less

than a unanimous verdict. I would therefore vacate the magistrate judge’s entry of

judgment as a matter of law in favor of defendant Carter and remand for a new trial.

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