*

The HONORABLE DONALD P. LAY assumed permanent disability

retirement status on January 3, 2007. This opinion is being filed by the remaining

judges of the panel pursuant to 8th Cir. R. 47E.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 06-2029

___________

Susan Peterson, *

*

Plaintiff - Appellant, *

*

v. * Appeal from the United States

* District Court for the

County of Dakota, Minnesota, a * District of Minnesota.

Municipal corporation; Minnesota *

AFSCME, Council No. 14, Local 36, *

a Minnesota labor organization; et al., *

*

Defendants - Appellees. *

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Submitted: November 13, 2006

Filed: March 8, 2007

___________

Before LOKEN, Chief Judge, LAY*

 and MELLOY, Circuit Judges.

___________

LOKEN, Chief Judge.

The Dakota County Social Services Department terminated Susan Peterson for

falsifying a time record and making untruthful statements to supervisors. Peterson’s

union, Minnesota AFSCME, Council No. 14, Local 36 (the Union), filed a grievance

on her behalf but declined to request arbitration when the County denied the
1

The HONORABLE MICHAEL J. DAVIS, United States District Judge for the

District of Minnesota.

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grievance. Peterson commenced this action against the County, the Union, and six

County and Union officials, alleging § 1983 due process claims and pendent state law

claims for defamation, tortious interference with contract, and civil conspiracy. The

district court1

 dismissed a number of claims and then granted defendants summary

judgment on the remaining claims. Peterson v. Dakota County, 428 F. Supp. 2d 974

(D. Minn 2006). Peterson appeals. Reviewing the district court’s summary judgment

rulings de novo, we affirm. 

I. Background

In early 2002, due to job performance issues, the Department reassigned

Peterson from crisis unit social worker to the child and family intake unit, where she

answered citizen phone calls relating to family conflicts, injuries to children, placing

children in foster case, and assistance for the developmentally disabled. Weeks after

beginning this job, Peterson was reprimanded when a caller complained that she made

inappropriate comments about the caller while Peterson thought the caller was on

hold. On April 8, 2003, five supervisors met to discuss a number of additional issues

concerning Peterson’s job performance. She was placed on administrative leave and

sent home. Later that month, supervisors and Peterson discussed a memorandum

summarizing these issues at a meeting attended by Deputy Director of Social Services

Tina Isaac, Social Services Supervisor Rick Morrissey, Crisis Response Unit

Supervisor Carol Duerr, and Union representatives Bridget Brown and Gerry Proskin.

Also in mid-April, an employee informed Duerr that Sergeant Curt Walter of

the West St. Paul Police Department saw Peterson at a County courthouse on the

morning of February 28, when Peterson should have been working in her office many

miles away. After Walter confirmed the account, Duerr reported the news to Isaac,
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who instructed Duerr and Morrissey to investigate. They confirmed that Walter and

his partner were in the courthouse that morning, interviewed other persons also in the

courthouse that morning, checked whether Peterson had any work-related reason to

be at the courthouse, and checked her security card activity and phone and work intake

logs. Nothing contradicted Walter’s account.

At another meeting with Peterson on April 25, supervisors imposed a written

reprimand and five-day suspension for making threatening and disrespectful

comments to callers, failing to process a high risk intake call, providing false

information to supervisors and clients, and violating data privacy rules. They also

asked Peterson where she was on February 28. When Peterson responded she was in

her office, Isaac advised that a police officer reported seeing her at the County

courthouse. On May 2, Proskin advised Peterson the County had initiated an

investigation into the courthouse allegation. A few days later, Peterson met with

Duerr, Morrissey, Proskin, and Union Steward Leann Creger. Management explained

that two police officers reported seeing her at the courthouse on the morning of

February 28. They also gave Peterson a copy of her time sheet, which stated she

worked eight hours in her office that day, and building access card records reflecting

that she entered at 8:15 a.m. and again at 11:20 a.m. Peterson responded that she

worked eight hours and, if she left the building, it was to run an errand. 

On May 8, Deputy Employee Relations Director Nancy Hohbach notified

Peterson in writing that the County was considering termination because witnesses

placed her at the courthouse between 10:00 a.m. and 11:00 a.m. on February 28,

contrary to her time record and her response to supervisor questioning. The letter

notice advised that a pre-termination hearing would be held on May 13 to give

Peterson “the opportunity to present information as to why [her] employment should

not be terminated.” Union representatives Brown and Proskin attended that hearing

with Peterson. She again denied having been at the courthouse. When told the police

officers were willing to testify, Peterson complained that she did not have access to
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her computer to refute the claim. Brown checked the computer during a recess; it did

not confirm Peterson’s denial. Brown also interviewed one of the police officers, who

confirmed seeing Peterson at the courthouse on February 28. The hearing concluded.

On May 15, the County issued a letter advising Peterson she was terminated for the

reasons stated in the May 8 letter.

The Union then filed a “third step” grievance on Peterson’s behalf. An informal

grievance proceeding was held on June 12, attended by Peterson; by Proskin, Brown,

and Business Agent Kurt Errickson from the Union; and by Director of Social

Services Patrick Coyne and Hohbach on behalf of the County. The Union

representatives urged the County to reinstate Peterson; the County refused. The

Union representatives then proposed that she be allowed to resign to avoid an

unfavorable termination on her record. After the meeting, the County advised it

would agree to this settlement if Peterson submitted a resignation letter. When

Peterson did not do so, the County denied the grievance. 

On June 19, Local 36 met to consider whether to challenge the grievance denial

in arbitration. Peterson and her supporters spoke in favor of arbitration. Proskin and

Brown spoke in opposition, arguing the grievance was weak and Peterson would not

prevail. The Union members voted not to arbitrate, twenty-one to sixteen. Peterson

appealed to the Union’s Appeals Committee, disclosing for the first time that she now

remembered visiting a newborn grandnephew at a hospital on the morning of February

28. After a meeting at which Peterson argued her position, the Union’s Executive

Board voted to uphold the decision not to arbitrate. This lawsuit followed.

II. Discussion

A. Tortious Interference. Peterson first argues that the district court erred in

dismissing her tortious interference claims against the individual defendants and the

Union. To establish a tortious interference claim under Minnesota law, Peterson must
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show: “(1) the existence of a contract; (2) the alleged wrongdoer’s knowledge of the

contract; (3) intentional procurement of its breach; (4) without justification; and (5)

damages.” Furlev Sales & Assocs., Inc. v. N. Am. Auto. Warehouse, Inc., 325

N.W.2d 20, 25 (Minn. 1982). 

The six individual defendants were all employees of the County, the party

guilty of the alleged breach of contract. An officer, agent, or employee acting within

the scope of his or her duties is privileged to interfere with another employee’s

contract with the employer “if that person acts in good faith, whether competently or

not, believing that his actions are in furtherance of the company’s business. This

privilege may be lost, however, if [the plaintiff proves that] the defendant’s actions

[were] predominantly motivated by malice and bad faith, that is, by personal ill-will,

spite, hostility, or a deliberate intent to harm the plaintiff or employee.” Nordling v.

N. States Power Co., 478 N.W.2d 498, 507 (Minn. 1991). Here, the district court

carefully reviewed the summary judgment record and concluded that Peterson failed

to present evidence of malice or bad faith by any individual defendant. 428 F. Supp.

2d at 984-85. After careful review of the record, we agree. We also note the absence

of evidence of a breach of contract by the County. Proof of a breach is an essential

element of a tortious interference claim.

We will comment briefly on the tortious interference claims against the Union

defendants because Peterson’s briefs criticize the district court for failing to

separately discuss those claims. Proskin and Brown were officers of the Union as well

as County employees. Though the theory is never clearly articulated, apparently

Peterson’s claim is that these Union officers interfered with her employment contract

by opposing arbitration. There is a simple answer to that contention -- the Union’s

decision not to arbitrate was based upon a 21-16 vote of the Local 36 membership, a

decision upheld by the Executive Board of Council No. 14. Thus, even if the Union’s

decision not to arbitrate could be viewed as interfering with Peterson’s employment
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contract, a proposition we firmly reject, the actions of Proskin and Brown were not the

cause of any injury from that interference. 

As for the tortious interference claim against the Union itself, Peterson cites no

authority for the notion that a union may be liable for tortious interference on account

of its actions under a collective bargaining agreement in representing a member in

disciplinary proceedings by the employer when the union declines to take the

employee’s grievance to arbitration. Minnesota law, like federal law, provides that

the employee’s exclusive remedy for wrongful conduct by the union in this situation

is a suit for breach of the union’s duty of fair representation. See Eisen v. State Dept.

of Pub. Welfare, 352 N.W.2d 731, 735-36 (Minn. 1984). 

B. Due Process. Peterson next argues the district court erred in dismissing her

§ 1983 procedural due process claims. Peterson argues that she had a due-processprotected property interest in her continued employment, and that she was afforded

inadequate pre-termination procedures before biased decision-makers and no

meaningful post-termination proceeding at which she could cross examine the police

officers and present evidence supporting her position. She relies primarily on

Winegar v. Des Moines Indep. Cmty. Sch. Dist., 20 F.3d 895, 900-02 (8th Cir.), cert.

denied, 513 U.S. 964 (1994). Defendants concede Peterson had a protected property

interest in continued County employment. See generally Somers v. City of

Minneapolis, 245 F.3d 782, 785 (8th Cir. 2001). 

The district court dismissed these due process claims because (i) unlike the

plaintiff in Winegar, Peterson was given oral and written pre-termination notice of the

charges against her and an opportunity to respond in person and to present supporting

information; (ii) Peterson was afforded adequate post-termination process --

mandatory grievance and arbitration procedures under the collective bargaining

agreement between the County and the Union; and (iii) Peterson presented no

evidence that the County’s ultimate decision-makers, Hohbach and Director of
2

Regarding the allegation of a biased decision-maker, Peterson argues that the

decision to terminate was made by Director of Social Services Coyne, not by Hohbach

and Volk, and that Coyne told Peterson she was dishonest, gossiped with Proskin

about Peterson wearing bedroom slippers at work, and was a friend of supervisor

Morrissey, who called Peterson incompetent. None of these allegations comes close

to overcoming “the presumption of honesty and integrity” that applies in determining

whether due process required a different decision-maker. Hortonville Jt. Sch. Dist.

No. 1 v. Hortonville Educ. Ass’n, 426 U.S. 482, 497 (1976).

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Employee Relations Will Volk, were biased or prejudiced. 428 F. Supp. 2d at 979-

982. After careful review of the record, we agree with these conclusions. See

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542-46 (1985); Larson v. City

of Fergus Falls, 229 F.3d 692, 696-98 (8th Cir. 2000); Riggins v. Bd. of Regents of

Univ. of Neb., 790 F.2d 707, 711-12 (8th Cir. 1986).2 

Peterson also argues that defendants deprived her of a distinct due process

liberty interest. See generally Neal v. Fields, 429 F.3d 1165, 1167-68 (8th Cir. 2005).

In most situations, pre-termination and post-termination procedures that adequately

protect a public employee’s property interest in continued employment adequately

protect her liberty interest as well. See Schleck v. Ramsey County, 939 F.2d 638, 643

(8th Cir. 1991). Here, particularly given the undisputed evidence that the County

offered Peterson the opportunity to resign, rather than be terminated, and the lack of

evidence that the County published the reasons for her termination to third parties, the

contention is without merit. 

C. Defamation. Peterson next argues the district court erred in dismissing her

claims that the County, the Union, and individual defendants Proskin, Coyne, Isaac,

and Morrissey defamed Peterson at various times during the County’s discipline and

termination proceedings by calling her incompetent, accusing her of falsifying a time

card, saying she wore bedroom slippers to work, and so forth. The district court

concluded that Peterson was a “public official” for defamation purposes and that she
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failed to present sufficient evidence that any defendant acted with actual malice, that

is, “with knowledge [the allegedly defamatory] statements were false or with reckless

disregard for truth.” 428 F. Supp. 2d at 983. Peterson argues that she was not a public

official, that she presented sufficient evidence of actual malice, and that the issue of

qualified privilege must be submitted to a jury. 

After careful review of the record, we agree with the district court that Peterson

was a public official within the meaning of New York Times v. Sullivan, 376 U.S. 254

(1964), and that she failed to show that any defendant acted with actual malice. The

Supreme Court of Minnesota considers both of these issues to be questions of law, so

the grant of summary judgment on these grounds is clearly proper. See Britton v.

Koep, 470 N.W.2d 518, 520, 524 (Minn. 1991). In addition, we agree with defendants

that their allegedly defamatory statements during the course of Peterson’s employment

were entitled to a qualified privilege. This is another reason why her failure to show

actual malice defeats these defamation claims. See Lewis v. Equitable Life Assur.

Soc’y of the U.S., 389 N.W.2d 876, 889-90 (Minn. 1986).

We have carefully considered the other issues raised on appeal and conclude

they are without merit. Accordingly, the judgment of the district court is affirmed.

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