During the pandemic, there was much controversy about masking requirements in schools across the country.  Minnesota was not immune to the debate, with several school districts involved in contentious board meetings throughout the pandemic facing criticism from concerned parents.

The Facts

In the case of McNeally v. HomeTown Bank, the plaintiff’s behavior during and after a board meeting led to significant repercussions.  Ms. McNeally worked for the defendant at a satellite branch located inside Shakopee High School.  In August 2021, the Shakopee Public Schools Board held a public meeting, during which it discussed pandemic rules and procedures developed for students for the upcoming school year.   The plaintiff’s daughter was a student in the district and subject to the mask mandate put in place by the district for the upcoming year.  Additional meetings were held as the school year progressed, and large groups of parents attended in order to speak against the mask mandate.  After one of the meetings, McNeally made a post on her Facebook account (the downfall of too many outspoken employees) critical of the school board chair.

The following day, the school district’s superintendent went to McNeally’s supervisor at HomeTown bank and instructed her to direct McNeally to delete her post.  Upon McNeally’s refusal to delete the post, the superintendent instructed her “to suspend McNeally until she deleted” her post.  He later e-mailed and asked that McNeally be barred from being present in a school zone unless she was picking up her children from school.  HomeTown bank followed up and suspended her from work pending the outcome of a school district investigation into her conduct.  While McNeally was never contacted about the outcome of the investigation, she was terminated by HomeTown in October 2021.

McNeally filed suit against both HomeTown and the school district, alleging First Amendment retaliation against both and tortious interference with employment agreement against the superintendent.  The defendants moved to dismiss her claims.

The Law

With regard to her First Amendment claim, it was necessary for McNeally to allege that she engaged in protected activity, that the government took adverse action against her “that would chill a person of ordinary firmness from continuing in the activity,” and the adverse action was motivated, at least in part, by the exercise of the protected activity.

The defendants did not dispute the question of whether McNeally engaged in activity protected by the First Amendment, but instead argued that McNeally wasn’t harmed by their actions and their actions were not connected to her protected activity.

The Outcome

In ruling against the defendants, the court stated that in some cases, embarrassment, humiliation and emotional distress could be sufficient to support a claim.  Courts have also found that less than $50 in parking tickets was enough to create a “chilling” effect on “a person of ordinary firmness.”  Based on this, the fact that McNeally was suspended, barred from entering district buildings, and eventually fired, was sufficient to support her claim that she suffered a retaliatory action.

In order to establish the final step in her first amendment claim, it was necessary to show that the adverse action against the plaintiff “would not have been taken absent the retaliatory motive.”  The court found that the superintendent’s “direct participation in [McNeally’s] suspension and termination and that a retaliatory motive was the but-for cause of those decisions.”

In response to the superintendent’s claim of qualified immunity, the court found that he was not entitled to qualified immunity due to McNeally’s clearly established right to be free from government interference in her at-will employment relationship.  It also found that a private actor, such as HomeTown, could be held liable for a constitutional claim if it is a willful participant in joint activity with the state or its agents.  As such, neither party was able to escape liability through its motion to dismiss.

A motion to dismiss is the first step in many parts of litigation where all facts alleged by the non-moving party are deemed to be true.  The employer lost at this step, but there is much more to come before the plaintiff is considered victorious.  First Amendment issues can be very sticky for employers, especially when they base employment decisions off of clearly protected activity.  If you, or your organization, are facing issues with employees or private citizens participating in protected activity that impacts your organization, contact Wiley Reber Law, for legal advice that works.