McNeally v. HomeTown Bank

             UNITED STATES DISTRICT COURT                            
                DISTRICT OF MINNESOTA                                


Tara C. McNeally,                     File No. 21-cv-2614 (ECT/DTS)       

     Plaintiff,                                                      

v.                                       OPINION AND ORDER                

HomeTown Bank; Lindsey Puffer, Branch                                     
Manager and Vice President, in her                                        
individual capacity; Shakopee Public                                      
Schools, Independent School District No.                                  
720; Shakopee Public Schools Board;                                       
Michael Redmond, Superintendent, in his                                   
individual capacity; and Kristi Peterson,                                 
Board Chair, in her individual capacity,                                  

     Defendants.                                                     


Steven M. Cerny, Santi Cerny, PLLC, Minneapolis, MN, for Plaintiff Tara C. McNeally. 

Zachary A. Alter and Sara Gullickson McGrane, Felhaber Larson, Minneapolis, MN, for 
Defendant Michael Redmond.                                                

Brittany R. King-Asamoa and Jennifer G. Lurken, Gislason & Hunter LLP, Mankato, MN, 
for Defendants HomeTown Bank and Lindsey Puffer.                          

Christian R. Shafer and Adam Frudden, Ratwik, Roszak & Maloney, PA, Saint Paul, MN, 
for Defendants Shakopee Public Schools, Shakopee Public Schools Board, and Kristi 
Peterson.                                                                 


On September 27, 2021, Plaintiff Tara McNeally attended a public meeting of the 
Shakopee Public Schools Board and expressed her views regarding a student-masking 
requirement and a proposed operating levy.  After the meeting, she expressed her views 
concerning  the  in-meeting  behavior  of  the  Board’s  Chair.    Two  days  later,  the 
Superintendent for Shakopee Public Schools, Michael Redmond, barred McNeally from 
being present in any part of the school district except “in the role of a parent,” and her 
employer, HomeTown Bank, suspended her employment pending the outcome of a School 

District investigation.  HomeTown fired McNeally on October 12.  In this case, McNeally 
alleges that Defendants retaliated against her exercise of First Amendment free-speech 
rights and that Redmond tortiously interfered with her employment relationship with 
HomeTown.                                                                 
Redmond and HomeTown seek dismissal of McNeally’s Complaint under Federal 

Rule of Civil Procedure 12(b)(6), and their motions will be denied.  McNeally alleges facts 
plausibly showing that Redmond and HomeTown worked together to retaliate against 
McNeally  for  her  exercise  of  First  Amendment  rights  and  that  Redmond  interfered 
unlawfully with McNeally’s HomeTown employment.                           
                           I1                                        

McNeally  resides  in  Shakopee, Minnesota, and is the mother of two children 
enrolled in the Shakopee Public Schools.  Compl. ¶ 3 [ECF No. 1].         
Defendant Shakopee Public Schools, Independent School District No. 720 (the 
“District”) is a public school district and political subdivision of the State of Minnesota.  
Id. ¶ 6.  Defendant Shakopee Public Schools Board (the “Board”) governs the District.  Id. 


1    In accordance with the standards governing a Rule 12(b)(6) motion, the facts are 
drawn from McNeally’s Complaint and materials embraced by it.  Gorog v. Best Buy Co., 

 (8th Cir. 2014); Greene v. Osborne-Leivian, No. 19-cv-533 (ECT/TNL), 

, at *2 n.3 (D. Minn. Mar. 12, 2021), aff’d, No. 21-1937, 

 (8th Cir. 2021).                                                  
                                                                          
¶ 7.  The Board is responsible for “developing and implementing policies and procedures 
of the Board and the District, and for hiring, overseeing, and directing the activities” of the 
District’s Superintendent, Michael Redmond.  

 ¶¶ 7–8.  As Superintendent, Redmond 

“is responsible for the management and operations of the District, speaking and acting on 
behalf of the District, developing and administrating policies and procedures on behalf of 
the District, and carrying out the directives of the [] Board, the Board Chair, and its 
members.”  Id. ¶ 8.  Defendant Kristi Peterson chairs the Board.  As Chair, Peterson “is 
responsible for the overall functioning of the Board and governing of the District, speaking 

and acting on behalf of the Board and the District, overseeing the work of the Board, 
presiding over Board meetings, determining who may speak at Board meetings and for 
how long, developing and approving the agenda for Board meetings, developing and 
implementing  policies  and  procedures  on  behalf  of  the  Board  and  the  District,  and 
overseeing and directing the activities of . . . Redmond.”  Id. ¶ 9.      

HomeTown operates several bank branches in Minnesota, including one branch in 
the City of Shakopee and another inside Shakopee High School.  Id. ¶ 4.  Through its 
relationship with the District, Hometown “periodically provid[es] bank employees to 
discuss financial literacy with students, provid[es] internship opportunities to students, and 
provid[es] other services.”  Id.  Defendant Lindsey Puffer is the Branch Manager and Vice 

President of HomeTown’s Shakopee locations.  Id. ¶ 5.  “Puffer is responsible for the 
management and operations of her branch locations, developing and administering policies 
and procedures on behalf of her branch locations, speaking and acting on behalf of her 
branch  locations,  and  carrying  out  the  directives  of  the  HomeTown  Bank  Board  of 
Directors and Leadership Team.”  Id.                                      
In 2020, HomeTown hired McNeally to work as a personal banker at both of its 

Shakopee locations.  Id. ¶ 11.  McNeally’s duties “included working as a teller, opening 
and closing accounts, customer service, hiring, training, managing interns from Shakopee 
High School, [] networking,” and marketing.  Id. ¶ 12.  “On several occasions, McNeally 
also taught financial literacy to students at Shakopee Public Schools, attending various 
classes at different campuses as a guest speaker.”  Id.                   

McNeally’s twelve-year-old daughter is enrolled in the Shakopee Public Schools 
and has a medical condition “that is exacerbated by wearing a mask, and wearing a mask 
has on repeated occasions resulted in her experiencing adverse health reactions” like 
“shortness of breath, lightheadedness, tunnel vision, and fainting.”  Id. ¶ 14. 
On August 23, 2021, the Board held a public meeting during which it discussed 

“pandemic response rules and procedures developed, in part, by [a] Pandemic Response 
Advisory  Team,  a  committee  established  by  the  Board  and  whose  members  include 
Redmond  and  Peterson.”    Id.  ¶ 15.    Redmond  presented  a  resolution  that  “outlined 
recommendations and requirements for students to wear masks in school.”  Id.  The Board 
passed the resolution unanimously and authorized Redmond to “implement and enforce” 

it.  Id.                                                                  
Owing to the Board’s action, when the 2021-2022 school year began, the District 
required McNeally’s daughter to wear a mask during school.  Id. ¶ 17.  Although McNeally 
informed the District of her daughter’s medical condition, it “was not receptive to her [] 
medical needs.”  Id.  For several weeks, McNeally’s daughter was “singled out and 
repeatedly harassed and berated in front of other students on a near daily basis by a teacher 
. . . regarding the type of mask she wore over her nose and mouth.”  Id. ¶ 18.  McNeally 

reached out to school officials, and eventually Redmond, to stop the teacher’s “harassing” 
behavior.  Id.  By “late August and early September 2021, the School Defendants knew 
that McNeally opposed their position on forcing students to wear masks in school.”  Id. 
¶ 20.                                                                     
McNeally began engaging with other community members about the District’s 

mask policy.  She encouraged them to “share information” about the effect of mask-
wearing on children in school and to “raise awareness” about the Board’s actions.  Id. ¶ 25.  
McNeally co-created a Facebook group called “Parents Against Forced Masking” to 
generate  discourse  about  mask-wearing,  to  encourage  opposition  to  mask-wearing  in 
schools, and to inform parents that the Board would address mask-wearing at future 

meetings.  Id. ¶ 26.  McNeally encouraged parents to attend the next meeting and to “share 
their views and positions as to why the Board should not force students to wear masks.”  
Id. ¶ 28.  By this time, Redmond, the Board, and Board Chair Peterson knew that McNeally 
had formed the Facebook group, that she opposed a “blanket mask mandate,” and that she 
was raising awareness before the Board’s next meeting.  Id. ¶ 27.         

A “large group” of parents attended the Board’s September 13, 2021 meeting to 
voice their opposition to forced mask-wearing.  Id. ¶ 29.  Once again, Redmond presented 
to the Board about “recommendations and requirements for students to wear masks in 
school.”  Id. ¶ 30.  The mask mandate wasn’t the only significant issue on the Board’s 
September 13 agenda.  Redmond also presented in favor of a proposed operating levy that 
would be voted on by residents in a November 2021 election and spoke about “the 
consequences and budget cuts that would be made if the levy did not pass.”  Id. ¶ 30; see 

also id. ¶ 23.  Redmond, Peterson, and other Board members favored the levy’s passage.  
Id. ¶ 23.  During the meeting, McNeally and other parents used the levy to pressure the 
Board on mask-wearing.  Their position, in other words, was that “if the Board was not 
going to give proper weight and consideration to their views and opinions, then [they] 
would not vote in favor of the operating levy.”  Id. ¶ 31.  McNeally held a sign that read 

“MASKS = NO LEVY.”  Id.                                                   
On September 23, Redmond visited HomeTown’s location in the city of Shakopee 
to speak with an employee.  McNeally was working there at the time.  She asked Redmond 
“how a parent could get on the list” to speak at the Board’s next meeting.  Id. ¶ 34.  
Redmond instructed her to email the District offices but added, “You know, you do not 

want to get mixed up with that other group, you do not want to be associating with them, 
you have done so much in the community and worked your way up, it would be a shame if 
that all goes away.”  Id.  McNeally understood “that other group” to mean parents who 
opposed the operating levy.  Id. ¶ 35.                                    
McNeally attended the Board’s next meeting on September 27.  One parent spoke 

to the Board about her opposition to mask-wearing and its effect on her child’s medical 
condition.  Id. ¶ 36.  While the parent spoke, McNeally saw Peterson “repeatedly turn her 
head to look at the screen behind her”; when others spoke, Peterson turned only “once” or 
“not . . . at all.”  Id.  “It also appeared to McNeally that, unlike other speakers, Peterson 
repeatedly looked at Redmond and other Board members” and seemed “disinterested” in 
the presentation.  Id.                                                    
Afterward, McNeally and other parents took to Facebook to express their views on 

topics raised during the meeting.  “[D]ozens of parents” commented on a post by the 
official Facebook account of a member of Minnesota’s House of Representatives.  Id. 
¶¶ 38–39.  McNeally posted a comment from her personal Facebook account:  
     I personally was really disappointed in board member Kristi     
     Peterson tonight.  She was turning around to watch the clock    
     time while Amanda was speaking about her daughters [sic]        
     struggle with her disability and masking.  She did it multiple  
     times!  So rude.  I know that most people don’t have ill will   
     toward these children. . . . but that lady showed she has NO    
     HEART!  Who does that???                                        

Id. ¶ 39; see ECF No. 17-1 at 2.                                          
The  next  day,  September  28,  Redmond  and  Puffer  met  for  lunch.    Redmond 
“instructed Puffer to direct McNeally to delete” the Facebook post.  Compl. ¶ 45.  During 
the lunch, Puffer sent McNeally a text message: “Hey . . . any way you could take down 
your post on Kristi Peterson?  We’ll talk later about it . . . but the school is pretty upset.”  
Id.  McNeally responded via text message by asking “who the school was”; Puffer replied 
that it was the “District offices.”  Id. ¶ 46.  McNeally and Puffer met later that afternoon.  
Puffer explained that “Peterson and another Board member” were “behind the issue.”  Id. 
¶ 47.  Puffer repeated that “she had been instructed by Redmond that the school wanted the 
[Facebook post] taken down,” adding that McNeally had “worked very hard” and did “not 
want it to all be for nothing.”  Id.  McNeally refused to delete the post.  Id. 
The next day, September 29, Puffer informed Redmond that McNeally would not 
delete the Facebook post.  Id. ¶ 48.  Redmond, in turn, “instructed Puffer to suspend 
McNeally until she deleted” it.  Id.  Later that day, Redmond emailed Puffer from his 

District email address, copying the District’s human resources director: “As a follow up to 
our brief conversation, I’ve shared my concerns in the attached letter.”  Id. ¶ 49.  Attached 
to the email was a letter on District letterhead and from “Superintendent Mike Redmond.”  
Id.  The letter stated in part:                                           
     It has been reported to me that Tara Mcnealy [sic] has made a   
     post on social media (I believe on Facebook) that is very       
     inappropriate  and  demeaning.    The  subject  of  this  post  is 
     School Board Chair, Kristi Peterson.  The characterization in   
     this post is untrue.  If this same post were made by an employee 
     of  Shakopee  Public  Schools,  it  would  be  considered       
     insubordination, and the event would be referred to our Human   
     Resources Department for appropriate disciplinary action.       

                         * * *                                       
     It has also been reported to me that Tara Mcnealy [sic] has     
     reached out to some form of media and wrongly accused Kristi    
     Peterson of contacting HomeTown Bank regarding this matter.     

     Effective immediately, until such time as an investigation of   
     this allegation has been completed by HomeTown Bank and         
     Shakopee Public Schools, I am requesting you to direct Tara     
     Mcnealy [sic] to not be present in the school zone, or any      
     school building, in any capacity of the school district and bank 
     partnership.  As Ms. Mcneally [sic] is a parent of two students 
     attending  Shakopee  Public  Schools,  she  may  certainly  be  
     present at Sweeney Elementary and West Middle School in the     
     role of a parent.  She may not be present in any other part of  
     the school district, without my express permission, until the   
     investigation is concluded.                                     
Id.; ECF No. 17-1 at 2–3.2  Minutes after receiving Redmond’s email and attached letter, 
Puffer called McNeally and told her that “because she would not delete the [Facebook post] 
and in light of the [letter] banning her from school grounds and thus banning her from 

working at the bank’s location at the Shakopee High School, . . . she was suspended 
without pay effective immediately pending the outcome of the District’s investigation.”  
Compl. ¶ 50.  Puffer told McNeally there was “no longer [] a position for her at the [other] 
Shakopee location.”  Id.  Puffer also said that HomeTown would be conducting its own 
investigation.  Id.                                                       

Neither the Bank Defendants nor School Defendants contacted McNeally about an 
investigation.    Id.  ¶ 51.    On  October  12,  2021,  HomeTown  terminated  McNeally’s 
employment.  Id.                                                          
McNeally filed this lawsuit in December 2021.  In her Complaint, she asserts one 
count of First Amendment retaliation under 

 against all Defendants, 

 

¶¶ 60–72, and a second count for “Tortious Interference with Employment Agreement” 
against  Redmond  in  his  individual  capacity,  

  ¶¶ 73–78.    McNeally  alleges  that 
Defendants played varying roles in “conspiring to secure and subsequently securing [her] 
suspension and termination” for engaging in First Amendment protected activity.  Id. ¶ 66.  
McNeally alleges she engaged in protecting activity by: (1) “attending the school Board 

meetings,” (2) “holding a sign that identified her viewpoints on matters of public concern 
and matters that were a topic of discussion of the Board,” (3) “forming a group to raise 


2    Just to be clear, Redmond misspelled McNeally’s name throughout his letter. 
public awareness of matters that were pending before the Board,” and (4) “expressing 
concerns of the actions of an elected official based on events that are factually accurate.”  
Id. ¶ 62.  She alleges that the District, Redmond, the Board, and Peterson acted under color 

of state law, and that HomeTown and Puffer were “willful participants in joint activity” 
with them.   Id. ¶¶ 67–68.  McNeally also alleges that, but for Redmond’s unlawful 
interference with her employment, she “would not have been suspended or terminated from 
HomeTown.”  Id. ¶¶ 74–77.  She seeks monetary and injunctive relief.  Id. at 29.  Redmond, 
HomeTown, and Puffer have moved to dismiss the claims asserted against them under 

Federal Rule of Civil Procedure 12(b)(6).  ECF Nos. 13, 20.               
                           II                                        

In reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6), a 
court must accept as true all factual allegations in the complaint and draw all reasonable 
inferences in the plaintiff’s favor.  Gorog, 

.  Although the factual allegations 
need not be detailed, they must be sufficient to “raise a right to relief above the speculative 
level.”  Bell Atl. Corp. v. Twombly, 

 (2007).  The complaint must “state 
a claim to relief that is plausible on its face.” 

.  “A claim has facial plausibility 
when the plaintiff pleads factual content that allows the court to draw the reasonable 
inference that the defendant is liable for the misconduct alleged.”  Ashcroft v. Iqbal, 

 (2009).                                                     
                           A                                         
Redmond moves to dismiss McNeally’s First Amendment retaliation claim for 
failure to plausibly allege essential elements of the claim and on qualified immunity 

grounds.  Each argument is considered in turn.                            
                           1                                         
To state a First Amendment retaliation claim under 

, McNeally 
must allege that: “(1) [s]he engaged in a protected activity, (2) the government official[s] 
took adverse action against [her] that would chill a person of ordinary firmness from 

continuing in the activity, and (3) the adverse action was motivated at least in part by the 
exercise of the protected activity.”  Bennie v. Munn, 

 (8th Cir. 2016) 
(citation omitted).                                                       
Redmond does not dispute that McNeally engaged in protected First Amendment 
activity.  He challenges the second and third elements, arguing that McNeally has not 

“plausibly show[n] Redmond . . . took (or caused others to take) an adverse action” or that 
his “retaliatory motive was the but-for cause of HomeTown’s decision to suspend or 
terminate [her].”  ECF No. 29 at 13–16.  Redmond says the only legally sufficient adverse 
actions taken against McNeally were her suspension and termination, and that allegations 
of  his  involvement  in  those  actions  are  conclusory  and  impermissibly  alleged  on 

information and belief.  Id.; ECF No. 15 at 17–19.  McNeally argues that the adverse 
actions sweep more broadly and include, not only her suspension and termination, but also 
Redmond’s “threats” and his decision to ban her from District property, which she alleges 
inhibited her ability to attend Board meetings and “from voting in the November election 
unless she first received [his] permission.”  ECF No. 27 at 19–21.        
Begin with the standards for determining when conduct might “chill a person of 

ordinary firmness” from engaging in protected activity.  According to the Eighth Circuit: 
     The ordinary-firmness test is . . . designed to weed out trivial 
     matters from those deserving the time of the courts as real and 
     substantial  violations  of  the  First  Amendment.    . . .     In 
     applying this “test,” we are mindful of the words of Judge      
     Posner in Bart v. Telford, 

 (7th Cir. 1982):   

       The effect on freedom of speech may be small, but since       
       there  is  no  justification  for  harassing  people  for     
       exercising their constitutional rights it need not be great   
       in order to be actionable.                                    

     The test is an objective one, not subjective.  The question is not 
     whether the plaintiff herself was deterred, though how plaintiff 
     acted might be evidence of what a reasonable person would       
     have done.  . . .  What would a person of “ordinary firmness”   
     have done in reaction to the [adverse action]?  Would he or she 
     have simply ignored [it], or would he or she have been slowed   
     down, at least to some degree?                                  

Garcia v. City of Trenton, 

, 728–29 (8th Cir. 2003).  “In some cases, 
embarrassment, humiliation and emotional distress may be sufficient to support a § 1983 
claim.”  Naucke v. City of Park Hills, 

, 928 (8th Cir. 2002).  But an adverse 
action is more likely shown when an official causes the plaintiff to experience “concrete 
consequences.”  Scheffler v. Molin, 

 (8th Cir. 2014).  In Garcia, for 
instance, a mayor’s issuance of $35 in retaliatory parking tickets over less than two months 
was enough to chill a person of ordinary firmness and supported a jury verdict on the 
plaintiff’s retaliation claim.  

.                          
McNeally  has  alleged  facts  plausibly  showing  that  Redmond took  or  directed 
adverse actions that would chill the speech of a person of ordinary firmness.  Redmond met 
with Puffer, McNeally’s supervisor, and urged her to direct McNeally to delete a Facebook 

post critical of a Board member.  Just one day later—after McNeally refused to delete the 
post—Redmond  restricted  McNeally’s  ability  to  access  District  property  pending 
investigations into her conduct.  

 ¶¶ 45–50.  This ban carried concrete consequences for 
McNeally.  It deprived her of the ability to work at HomeTown’s Shakopee High School 
location whether HomeTown suspended her or not.  McNeally also was unable to attend 

Board meetings in person and, she says, prevented from “voting on the levy in the 
November election, unless she first obtained Redmond’s permission to vote, as early votes 
were required to be cast at the District’s office and votes were required to be cast at West 
Middle School on election day, an activity related to her residence in Shakopee and not her 
role as a parent.”  Id. ¶¶ 52, 65.  A reasonable jury could find that this aspect of Redmond’s 

conduct—his decision to exclude McNeally from District property—would cause a person 
of ordinary firmness to “have been slowed down, at least to some degree.”  Garcia, 

.                                                              
Redmond seems to suggest that McNeally was not actually deprived of her ability 
to attend Board meetings, but this is not persuasive.  Redmond first asserts that his letter 

“said nothing which restricted [McNeally] from attending school Board meetings.”  ECF 
No. 15 at 15 n.7.  It is at least plausible, however, that a reasonable person would 
understand the letter to forbid attendance at Board meetings.  Compare ECF No. 17-1 at 
2–3 (“As Ms. Mcnealy [sic] is a parent of two students attending Shakopee Public Schools, 
she may certainly be present at Sweeney Elementary and West Middle School in the role 
of a parent.  She may not be present in any other part of the school district, without my 
express permission, until the investigation is concluded.”) (emphasis added), with Compl. 

¶ 52 (alleging that all Board meetings were “scheduled to be held at the Shakopee High 
School or District Office”).  Redmond also filed a news article dated October 7, 2021, 
reporting that the District clarified that “a parent in [McNeally’s] situation can certainly 
attend a school board meeting.”  ECF No. 17-1 at 12.  This isn’t persuasive, either, though 
for a somewhat different reason: determining that McNeally could freely attend Board 

meetings based on an extra-pleading news article would entail drawing inferences that are 
not appropriate at this Rule 12(b)(6) stage.  Finally, Redmond points out that Board 
meetings are livestreamed and available to the public on YouTube, meaning McNeally was 
able to view them “virtually.”  ECF No. 15 at 15 n.7.  Redmond cites no authority to support 
the  proposition  that  the  option  to  live  stream  a  school  board  meeting  excuses  any 

constitutional  violations  associated  with  forbidding  a  citizen’s  in-person  attendance.  
Courts to consider the sufficiency of telephonic or similar alternatives for school board 
meeting attendance have ruled for plaintiffs asserting First Amendment claims.  See Cyr v. 
Addison Rutland Supervisory Union, 

, 549–50 (D. Vt. 2014) (holding 
that telephonic participation option was inadequate alternative); Wilson v. N. E. Ind. Sch. 

Dist., 5:14-CV-140-RP, 

, at *4–6 & n.2 (W.D. Tex. Sept. 30, 2015) 
(holding that “permission to write the board or send a representative to the board meetings 
on her behalf” was inadequate alternative to in-person attendance); Teufel v. Princeton City 
Sch. Dist. Bd. of Educ., No. 1:12-cv-355, 

, at *14 (S.D. Ohio Jan. 11, 
2013) (holding that alternative channels of communication with board members outside of 
public meeting were inadequate alternatives).                             
Redmond argues that McNeally does not plausibly allege his involvement in her 

suspension and termination.  This deficiency, he says, means McNeally has not pleaded 
the causation element of her First Amendment retaliation claim.  ECF No. 15 at 18–19; 
ECF No. 29 at 13–16.  This argument implicates general and context-specific causation 
principles.                                                               
To establish causation generally, McNeally “must show that a reasonable jury could 

find that a retaliatory motive of the government official was a ‘but-for cause’ of the adverse 
action, ‘meaning that the adverse action against the plaintiff would not have been taken 
absent the retaliatory motive.’”  Graham v. Barnette, 

 (8th Cir. 2021) 
(quoting Nieves v. Bartlett, 

, 1722 (2019)).  “[U]nless the issue of causation 
is ‘so free from doubt as to justify taking it from the jury,’ the issue should be tried.”  

Lawrence v. City of St. Paul, 

 (D. Minn. 2010) (quoting Revels 
v. Vincenz, 

 (8th Cir. 2004)); De Rossitte v. Correct Care Sols., LLC, 

  (8th  Cir.  2022)  (same).    As  with  other  retaliation  causes  of  action, 
“chronology” allegations can “support [a] circumstantial claim of retaliatory action” in the 
First Amendment context.  L.L. Nelson Enters., Inc. v. Cnty. of St. Louis, Mo., 

 (8th Cir. 2012); see also Wilson v. Northcutt, 

 (8th Cir. 2006) 
(“Temporal proximity is relevant but not dispositive.”).                  
Also  relevant  here,  McNeally  must  plausibly  allege  Redmond’s  “direct 
responsibility for[] the deprivation of rights.”  Turner v. Mull, 

 (8th Cir. 
2015) (citation omitted).  The “requisite causal connection [between the government 
conduct and the deprivation] can be established not only by some kind of direct personal 
participation in the deprivation but also by setting in motion a series of acts by others which 

the actor knows or reasonably should know would cause others to inflict the constitutional 
injury.”  Waddell v. Forney, 

 (8th Cir. 1997) (quoting Merritt v. Mackey, 

 (9th Cir. 1987)).  Courts consider the “the defendant’s level of 
authority over and involvement in [an] adverse employment action.”  Brown v. Off. of State 
Comptroller, 

 (D. Conn. 2016).  Further, “retaliation against 

protected speech can result in section 1983 liability even if it ultimately is carried out by a 
private actor.”  Pendleton v. St. Louis Cnty., 

 (8th Cir. 1999).  Thus, 
causation may be shown by a government official’s exertion of influence or authority over 
a private actor—i.e., a plaintiff’s employer—to effect some act of retaliation against a third 
party.  See Helvey v. City of Maplewood, 

 (8th Cir. 1998) (First 

Amendment retaliation claim supported by allegation that police officer “used his position 
of authority to cause [plaintiff’s boss] to fire her in retaliation for the testimony she gave”); 
Pendleton,  178  F.3d  at  1010–11  (First  Amendment  retaliation  claim  supported  by 
allegations  that  state  actor  conspired  with  private  employer  to  “force[]  [plaintiff]  to 
resign”).                                                                 

Here, McNeally alleges facts plausibly showing Redmond’s direct participation in 
her suspension and termination and that a retaliatory motive was the but-for cause of those 
decisions.  It’s reasonable to infer that the District and Redmond wield influence over 
HomeTown, including because “the District permit[s] HomeTown Bank to operate a 
location at the Shakopee High School.”  Compl. ¶ 43.  Redmond has “attend[ed] private 
meetings of [HomeTown’s] Board of Directors” and “formed relationships with those in 
control of HomeTown,” including Puffer, its Board, and its “Leadership Team.”  

  

McNeally also alleges facts plausibly showing Redmond drew on that influence to retaliate 
against her.  Redmond helped to develop the District’s mask-wearing policy and supported 
the operating levy.  McNeally opposed—and generated opposition to—both.  Id. ¶¶ 23, 30, 
33.  Redmond expressed his displeasure to McNeally by telling her she “did not want to 
get mixed up with that group” because she had “done so much in the community and 

worked [her] way up, [so] it would be a shame if that all goes away.”  Id. ¶ 34.  And just 
one day after McNeally advocated her views at a Board meeting and criticized Peterson on 
Facebook, Redmond met with Puffer and instructed her to have McNeally delete her 
Facebook post.  Id. ¶ 45.  Puffer twice asked McNeally to delete the post, including during 
her meeting with Redmond, relaying that the “school [was] pretty upset,” and then later 

explaining that “she had been instructed by Redmond that the school wanted the [p]ost to 
be taken down,” and “repeat[ing], near verbatim, the same threat that Redmond had made 
to McNeally.”  Id. ¶¶ 45, 47.  Redmond and Puffer spoke the next day “to discuss McNeally 
and whether Puffer was able to force McNeally to delete the [p]ost.”  Id. ¶ 48.  On learning 
that McNeally refused, Redmond wrote a letter—not to McNeally, but to her employer—

severely restricting her access to District property pending “investigations” by the District 
and HomeTown.  Id. ¶ 49; see ECF No. 17-1 at 2–3 (banning McNeally from District 
properties “until such time as an investigation . . . has been completed by HomeTown Bank 
and Shakopee Public Schools”).  Minutes later, alleges McNeally, Puffer suspended her 
immediately  and  without  pay based  on  her  refusal  to  delete  the  Facebook  post  and 
Redmond’s decision to restrict her access to District property, including “the bank’s 
location  at  the  Shakopee  High  School.”    Compl.  ¶ 50.    McNeally’s  suspension  was 

“effective immediately pending the outcome of the District’s investigation.”  Id.  And, 
consistent  with  Redmond’s  letter,  Puffer  said  HomeTown  would  also  investigate 
McNeally’s conduct.  Id.  Two weeks later, HomeTown and Puffer terminated McNeally’s 
employment.  Id. ¶ 51.  HomeTown terminated McNeally even though she worked more 
often  at  its  other  Shakopee  location—a  location  that  was  “short  staffed.”    Id.  ¶ 50.  

Accepted as true, these allegations plausibly show Redmond’s retaliatory motive and, at 
minimum, that he “set in motion a series of acts” he reasonably should have known would 
cause McNeally’s suspension and termination.                              
                           2                                         
A government official is entitled to qualified immunity unless his “conduct violated 

a clearly established constitutional or statutory right of which a reasonable [official] would 
have known.”  Moore-Jones v. Quick, 

 (8th Cir. 2018) (citation omitted).  
“To overcome qualified immunity, the plaintiff must plead facts showing (1) that the 
official violated a statutory or constitutional right, and (2) that the right was clearly 
established at the time of the challenged conduct.”  LeMay v. Mays, 

 (8th 

Cir. 2021) (cleaned up).  “The Supreme Court has repeatedly ‘stressed the importance of 
resolving immunity questions at the earliest possible stage in litigation.’”  Dillard v. 
O’Kelley, 

 (8th Cir. 2020) (en banc) (citation omitted), cert. denied, 

 (2021).  Still, to prevail on his motion to dismiss, Redmond must show he 
is “entitled to qualified immunity ‘on the face of the complaint.’”  Baude v. Leyshock, 

 (8th Cir. 2022) (quoting Stanley v. Finnegan, 

 (8th Cir. 
2018)).                                                                   

Redmond argues he is entitled to qualified immunity because McNeally has not 
alleged the deprivation of a clearly established right.  ECF No. 15 at 8–16; ECF No. 29 at 
3–12.  McNeally counters that Redmond’s actions violated her clearly established First 
Amendment right “to critique an elected school official.”  ECF No. 27 at 25–29.  McNeally 
also says she was deprived of clearly established rights to “freedom of expression, to 

assemble, and to petition the government for a redress of grievances.”  

 at 26 n.13.  
McNeally says these rights were violated by (1) her suspension and termination; and (2) 
Redmond’s decision to restrict her access to District property, which “banned” her from 
attending Board meetings or voting in the District’s November 2021 election without his 
prior permission.                                                         

The parties disagree on the specificity with which a clearly established right must 
be defined.  “To be clearly established, a legal principle must have a sufficiently clear 
foundation in then-existing precedent.”  District of Columbia v. Wesby, 

 
(2018).  “This demanding standard protects ‘all but the plainly incompetent or those who 
knowingly violate the law.’”  

 (citation omitted).  A plaintiff must “point to existing 

circuit  precedent  that  involves  sufficiently  ‘similar  facts’  to  ‘squarely  govern’”  the 
official’s conduct “in the specific circumstances at issue, or, in the absence of binding 
precedent, . . . ‘a robust consensus of cases of persuasive authority’ constituting settled 
law.”  Graham, 

 (internal citations omitted).  Courts should not “define 
clearly established law at a high level of generality, since doing so avoids the crucial 
question whether the official acted reasonably in the particular circumstances that he or she 
faced.”  Wesby, 

 (quoting Plumhoff v. Rickard, 

 

(2014)).  Yet “a general constitutional rule already identified in the decisional law may 
apply with obvious clarity to the specific conduct in question.”  Taylor v. Riojas, 

, 53–54 (2020) (per curiam) (quoting Hope v. Pelzer, 

 (2002)).  In 
other words, “officials can still be on notice that their conduct violates established law even 
in novel factual circumstances.”  Hope, 

.                  

McNeally understates what it takes to show a clearly established right.  McNeally 
reduces the inquiry to “whether [she] exercised constitutionally protected rights, and if so, 
then any form of retaliation is impermissible.”  ECF No. 27 at 25.  There is no question 
that certain rights McNeally identifies at various points—the rights to speak on matters of 
public  concern,  to  critique  public  officials,  to  vote,  to  assemble,  and  to  petition  the 

government for redress of grievances—are established in the abstract.  But the proper 
analysis examines the “specific actions” of the official—not whether some right is clearly 
established “at the most general level of legal abstraction.”  Sisney v. Reisch, 

, 
845–46 (8th Cir. 2009) (citations omitted); see, e.g., Young v. Mercer Cnty. Comm’n, 

, 735–36 (8th Cir. 2017).  Thus, the salient qualified immunity question is not 

simply whether Redmond retaliated against McNeally for exercising a First Amendment 
right, but whether the allegations plausibly show that a reasonable official in Redmond’s 
position would have known his alleged conduct would violate a clearly established right.  
See Hope, 536 U.S. at 740–41.                                             
Turning to the clearly established rights that McNeally asserts, start with allegations 
that Redmond conspired with school officials to have McNeally suspended and fired.  A 
reasonable official in Redmond’s shoes would have had fair notice that he could not 

retaliate  against  protected  speech  by  exerting  authority  or  influence  over  a  person’s 
employer to effect an adverse employment action against them.  The Eighth Circuit has 
held  that,  “[a]s  of  1989,  the  right  to  be  free  from  government  interference  with  an 
employment relation was clearly established by our court in Chernin v. Lyng, 

 
(8th Cir. 1989).”  Waddell, 

.  In Chernin, a federal agency denied inspection 

services to a meatpacking company “on the ground that the involvement of [the plaintiff], 
a convicted felon, rendered [its] plant unfit for operation.”  874 F.2d at 502–03.  The 
plaintiff alleged that, after bringing the denial of the company’s application before an 
administrative law judge, the agency applied “economic pressure” and forced the company 
to enter a stipulation and consent decision under which it would “permanently divest [him] 

of any connection to its operations,” “deny him access to its plant,” and not consult or do 
business with him.  Id. at 503.  In reversing the dismissal of the plaintiff’s due process 
claim, the Eighth Circuit held that at-will employees “have a right enforceable in law 
against third parties who unlawfully interfere with the employment relation.”  Id. at 
504–06.                                                                   

Post-Chernin, the clearly established right to be free from government interference 
with an at-will employment relationship extends to adverse employment actions that are 
taken in retaliation to protected speech.  See Helvey, 

 (“Helvey’s allegation 
that Corcoran used his position of authority to cause Thomas to fire her in retaliation for 
the testimony she gave concerning the incident involving Maplewood police officers stated 
a [First Amendment] claim under section 1983.”); Pendleton, 

 
(plaintiffs stated First Amendment retaliation claim and defeated qualified immunity by 

alleging state actor “contacted their employers to have them terminated or disciplined” and 
conspired with one employer, who “forced [plaintiff] to resign”); Waddell, 108 F.3d at 
894–95 (due-process plaintiff defeated summary judgment with evidence that agency 
conditioned  his  employer’s  continued  deposit  insurance  on  its  terminating  his 
employment).  To be sure, these cases involve dissimilar facts in some respects.  None 

involve retaliation by a government actor for a plaintiff’s criticism of an elected school 
official or analyzed claims against a superintendent or comparable school employee.  But 
a clear rule does emerge: a government actor may not retaliate against an individual’s 
protected First Amendment activity by exerting influence over her employer to cause an 
adverse employment action.  At this stage, Redmond is not entitled to qualified immunity 

for his alleged role in her suspension and termination.                   
McNeally also contends that Redmond’s decision to restrict her access to District 
Property  violated  clearly  established  First  Amendment  rights.    To  recap,  Redmond 
communicated the following in his letter to Puffer:                       
     Effective immediately, until such time as an investigation of   
     this allegation has been completed by HomeTown Bank and         
     Shakopee Public Schools, I am requesting you to direct Tara     
     Mcnealy [sic] to not be present in the school zone, or any      
     school building, in any capacity of the school district and bank 
     partnership.  As Ms. Mcneally [sic] is a parent of two students 
     attending  Shakopee  Public  Schools,  she  may  certainly  be  
     present at Sweeney Elementary and West Middle School in the     
     role of a parent.  She may not be present in any other part of  
     the school district, without my express permission, until the   
     investigation is concluded.                                     

ECF No. 17-1 at 2–3.3                                                     
McNeally seems to say Redmond’s action violated clearly established rights in two 
respects.  First, she alleges that Redmond’s letter “banned [her] from attending all future 
Board meetings[,] as those meeting were scheduled to be held at the Shakopee High School 
or District Office.”  Compl. ¶ 52; see also id. ¶¶ 63, 66.  Redmond’s actions caused 
McNeally to “cease[] attending Board meetings.”  Id. ¶ 65.  Second, McNeally alleges she 
was “banned from voting on the levy in the November [2021] election, unless she first 
obtained Redmond’s permission to vote, as early votes were required to be cast at the 
District’s office and votes were required to be cast at West Middle School on election day, 

an activity related to her residency in Shakopee and not her role as a parent.”  Id. ¶ 52; see 
also id. ¶¶ 63, 66.  McNeally alleges that Redmond’s decision to exclude her from District 
property was in retaliation for her protected activity, including her viewpoint expression.  
Id. ¶¶ 53–59, 62–63, 65, 68–70; see also id. ¶ 70 (alleging Redmond acted “in furtherance 
of a policy, custom, and practice of ignoring, suppressing, and silencing the views of 




3    It’s not clear if, when, or how Redmond withdrew the restrictions described in his 
letter.    McNeally  asserts  she  “was  never  contacted  by  the  District  pursuant  to  an 
investigation, and thus the ban is still in place . . . .”  ECF No. 27 at 12 n.3.  In her 
Complaint, McNeally alleges she was “never contacted” by any Defendant about an 
investigation, Compl. ¶ 51, and the District, the Board, and Peterson admit that the District 
did not conduct one, Joint Answer ¶ 26 [ECF No. 19].  At this stage, the pleadings permit 
a reasonable inference that, as of the time she filed suit, no Defendant had informed 
McNeally that the letter’s restrictions were lifted.                      
parents  who  oppose  the  School  Defendants’  agenda,  and  intimidating,  targeting, 
threatening, and retaliating against parents who oppose their views and opinions”). 
Start with the impact on McNeally’s ability to attend school board meetings, which 

requires a broader overview of the law governing public access to property.  The “First 
Amendment does not guarantee access to property simply because it is owned or controlled 
by the government.”  Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 

 
(1983) (quoting U.S. Postal Serv. v. Greenburgh Civic Ass’n, 

 (1981)).  
“The existence of a right of access to public property and the standard by which limitations 

upon such a right must be evaluated differ depending on the character of the property at 
issue.”  Id. at 44.  “Limited public forums (sometimes called nonpublic forums) include 
public properties that are not by tradition or designation public forums but have been 
opened by the government for limited purposes, communicative or otherwise.”  Powell v. 
Noble, 

 (8th Cir. 2015) (citation omitted).  A public-school district’s use 

of an otherwise nonpublic venue, such as school or district property, to conduct public 
school board meetings creates a limited public forum.  See, e.g., Green v. Nocciero, 

 (8th Cir. 2012); Davison v. Rose, 

 (4th Cir. 2021).  A 
limited public forum may be “limited to use by certain groups or dedicated solely to the 
discussion of certain subjects,” but the government’s restrictions must be “reasonable and 

viewpoint-neutral.”  Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of 
Law v. Martinez, 

, 679 n.11 (2010) (citation omitted).  “[A] restriction on 
access to a limited public forum must be ‘reasonable in light of the purpose served by the 
forum.’”  Viewpoint Neutrality Now! v. Regents of Univ. of Minn., 

, 
920 (D. Minn. 2021) (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 

 (1985)).                                                    
Binding and persuasive authorities show that the right not to be excluded from a 

public board meeting in retaliation for First Amendment activities is clearly established.  
Start with the Supreme Court’s decisional law, from which “[g]eneral statements of the 
law” may provide “fair and clear warning that an official’s actions are unlawful.”  Morris 
v. Zefferi, 

 (8th Cir. 2010) (cleaned up).  “[T]he law is settled that as a 
general matter the First Amendment prohibits government officials from subjecting an 

individual to retaliatory actions . . . for speaking out.”  Hartman v. Moore, 

 (2006).  More pointedly, the Supreme Court has held that “when [a] [school] board 
sits in public meetings to conduct public business and hear the views of citizens, it may not 
be required to discriminate between speakers on the basis of . . . the content of their 
speech.”  City of Madison, Joint Sch. Dist. No. 8. v. Wisc. Pub. Emp. Rels. Comm’n, 

, 175–76 (1976).  In City of Madison, “[t]he First Amendment was violated when 
[school board] meetings were suddenly closed to one segment of the public even though 
they otherwise remained open for participation by the public at large.”  Minn. State Bd. for 
Cmty. Colls. v. Knight, 

 (1984).  Thus, Supreme Court precedent makes 
clear  that  the  First  Amendment  prohibits  “the  selective  closure  of  a  generally  open 

forum”—including a public school board meeting.  

  Our Eighth Circuit has reinforced 
these limits on denying access to public school board meetings.  In Green v. Nocciero, the 
Court observed that a school board “could reasonably restrict public access to [its meeting] 
‘based on the subject matter of the speech, on the identity or status of the speaker, or on 
the practical need to restrict access for reasons of manageability or the lack of resources to 
meet total demand.’”  

 (quoting Victory Through Jesus Sports v. Lee’s 
Summit R–7 Sch. Dist., 

, 334–35 (8th Cir. 2011)).  This ability, it continued, 

“necessarily included the authority to remove an unruly or disruptive member of the 
audience ‘to prevent his badgering, constant interruptions, and disregard for the rules of 
decorum.’”  

 (quoting Eichenlaub v. Twp. of Indiana, 

, 281 (3d Cir. 2004)).  
“But having chosen to conduct its business in public and to hear citizen views, the Board 
could not deny access to the meeting and, while it could limit the subject matter of citizen 

comments, it could not discriminate against a speaker based on his viewpoint.”  Id. at 754 
(emphasis added).  These cases gave fair and clear warning to a reasonable official in 
Redmond’s position that denying access to a public-school board meeting in retaliation to 
someone’s (1) criticism of a school board member on Facebook and (2) advocacy for an 
opposing view on matters before the school board—here, the District’s mask-wearing 

policy and a proposed operating levy—would violate a person’s clearly established First 
Amendment rights.  See also Johnson v. Perry, 

, 175–76 (2d Cir. 2017) 
(finding clearly established right “not to be excluded, based on viewpoint differences or 
because of possible annoyance,” from accessing school’s gymnasium during use as limited 
public forum); Reza v. Pearce, 

 (9th Cir. 2015) (rejecting qualified 

immunity  and  observing  “fundamental  principle  that  the  government  can  remove  an 
individual from a limited public forum only if the individually actually disrupts the 
proceedings”).                                                            
To show that the denial of access to Board meetings did not violate a clearly 
established right, Redmond cites a decision granting qualified immunity to school board 
members who prohibited a plaintiff from attending board meetings, attending a school’s 

extracurricular activities, and being physically present on the school’s campus.  See Barna 
v. Bd. of Sch. Dirs., 

, 140–41 (3d Cir. 2017).  In Barna, the school board’s 
action followed disruptive behavior and threats by the plaintiff at an earlier meeting, 
issuance of a letter warning the plaintiff that “he could attend [b]oard meetings but would 
be banned from future attendance if he engaged in threatening or disorderly conduct,” and 

the plaintiff’s failure to heed this warning by behaving disorderly at a subsequent meeting.  

.  In its qualified immunity analysis, the court carefully (and consistently) 
described the at-issue right as the “right to participate in school board meetings despite 
engaging in a pattern of threatening and disruptive behavior.”  

 (3d Cir. 2017) (emphasis added).  The court concluded that “given the state of the law 

at the time of the Board’s ban, there was, at best, disagreement in the Courts of Appeals as 
to the existence of a clearly established right to participate in school board meetings despite 
engaging in [such] behavior.”  

.  This case is materially different.  There are no 
allegations  that  McNeally  was  denied  access  to  Board  meetings  for  threatening  or 
disorderly behavior.                                                      

                           B                                         
HomeTown and Puffer advance essentially two reasons why McNeally has not 
stated a § 1983 First Amendment retaliation claim against them.  First, they say McNeally 
has not alleged the deprivation of a constitutional right.  ECF No. 22 at 6–9.  As discussed, 
McNeally has plausibly alleged the deprivation of her clearly established right to be free 
from adverse employment actions caused by government interference with her at-will 
employment  relationship.    This  conclusion  applies  equally  to  her  claims  against 

HomeTown and Puffer.  Second, HomeTown and Puffer say McNeally has not alleged 
facts plausibly showing their willful participation in a conspiracy with Redmond, the 
District, the Board, or Peterson.  ECF No. 22 at 9–15; ECF No. 31 at 4–16.  HomeTown 
and Puffer assert that McNeally’s conspiracy allegations are “conclusory” and fatally 
reliant on mere “parallel conduct.”  ECF No. 22 at 9–13.                  

A private actor may be held liable under § 1983 if it is a “willful participant in joint 
activity with the State or its agents.”  Gibson v. Regions Fin. Corp., 

 (8th 
Cir. 2009) (quoting Lugar v. Edmondson Oil Co., 

 (1982)).  “[B]oth state 
officials and private actors may be liable under § 1983 for conspiring to retaliate against 
protected speech, if the evidence shows the requisite agreement to violate or disregard the 

law.”  Dossett v. First State Bank, 

 (8th Cir. 2005) (citing Pendleton, 

).    “[A]  plaintiff  must  establish  not  only  that  a  private  actor  caused  a 
deprivation of constitutional rights, but that the private actor willfully participated with 
state officials and reached a mutual understanding concerning the unlawful objective of a 
conspiracy.”  

  “[A]lleging that two people had the opportunity to conspire—i.e. that 

they could have met with each other, or called each other, or emailed each other—is 
obviously not sufficient to ‘nudge[]’ a conspiracy claim ‘across the line from conceivable 
to plausible.’”  Lawrence, 

 (quoting Twombly, 

) 
(emphasis in original); see Magee v. Trs. of Hamline Univ., Minn., 

 (8th 
Cir. 2014).  But “[t]he elements of a conspiracy are often established through circumstantial 
evidence, and ‘the question of the existence of a conspiracy to deprive the plaintiffs of their 
constitutional rights’ can be inferred from the circumstances to demonstrate a ‘meeting of 

the minds’ or understanding among the conspirators to achieve the conspiracy’s aims.”  
Tirado v. City of Minneapolis, 

, 845 (D. Minn. 2021) (citation omitted).   
Here, the Complaint’s allegations permit a plausible inference that a meeting of the 
minds  occurred  between  Puffer  and  Redmond  to  retaliate  against  McNeally  for  her 
protected activity.  This case is unlike Lawrence, on which the Bank Defendants rely, 

because McNeally alleges more than mere opportunity and parallel conduct.  As discussed, 
the allegations plausibly show Redmond’s influence over HomeTown, his support for the 
mask-wearing policy and proposed operating levy, and his displeasure with McNeally’s 
efforts to oppose those measures (i.e., her viewpoint).  Critical to showing a meeting of the 
minds are the events following McNeally’s Facebook post.  Redmond met with Puffer the 

next day, and during that meeting Puffer asked McNeally to delete the post because the 
District offices were “pretty upset.”  Compl. ¶¶ 45–46.  Later that day, Puffer confirmed 
that Redmond wanted the post taken down and repeated “near verbatim” his earlier 
threatening remark.  Id. ¶ 47.  When McNeally refused, Redmond and Puffer spoke again 
the next day.  Redmond instructed Puffer to suspend McNeally until the post was deleted.  

Id.  ¶ 48.    When  Redmond  excluded  McNeally  from  District  property,  he  didn’t 
communicate with her—he emailed Puffer.  And he did so as a “follow up to [their] brief 
discussion” and with a letter articulating his decision.  Id. ¶ 49.  Puffer called McNeally 
“within minutes” of receiving Redmond’s letter and suspended her without pay.  Id. ¶ 50.  
Puffer did not allow McNeally to continue working at HomeTown’s other Shakopee 
location, even though it was “short staffed” and where McNeally “worked the majority of 
her time and worked full-time when the Shakopee High School location was closed.”  Id.  

HomeTown  terminated  McNeally  just  two  weeks  later.    Id.  ¶ 51.    Together,  these 
allegations  propel  McNeally’s  conspiracy  claim  across  the  line  from  conceivable  to 
plausible.                                                                
                           C                                         
Redmond has moved to dismiss Count Two of the Complaint, in which McNeally 

alleges tortious interference with an employment agreement.  Id. ¶¶ 73–78.  Redmond 
argues that the claim fails on official immunity grounds and because McNeally has not 
alleged facts plausibly showing essential elements of the claim.          
Start with official immunity.  Redmond contends that McNeally has not pleaded 
malice.  ECF No. 15 at 22.  Under Minnesota law, “official immunity protects from 

personal liability a public official charged by law with duties that call for the exercise of 
judgment or discretion unless the official is guilty of a wilful or malicious wrong.”4  Rico 
v. State, 

, 106–07 (Minn. 1991) (citation omitted).  Malice “means nothing 
more than the intentional doing of a wrongful act without legal justification or excuse, or, 
otherwise stated, the willful violation of a known right.”  Ulrich v. Pope Cnty., 

    Minnesota’s common law does not grant official immunity to officials “charged 
with the execution of ministerial, rather than discretionary, functions.”  Schroeder v. St. 
Louis Cnty., 

 (Minn. 2006) (citation omitted).  McNeally does not 
argue that any aspect of Redmond’s alleged conduct was ministerial.  ECF No. 27 at 33 
n.14.                                                                     
1054, 1062 (8th Cir. 2013) (quoting Rico, 

).  The malicious wrong 
exception to official immunity “anticipates liability only when an official intentionally 
commits an act that he or she then has reason to believe is prohibited.”  Rico, 

.  An official-immunity determination “contemplates less of a subjective inquiry into 
malice, which was traditionally favored at common law, and more of an objective inquiry 
into the legal reasonableness of an official’s actions.”  Hassan v. City of Minneapolis, 

 (8th Cir. 2007) (en banc) (quoting State by Beaulieu v. City of Mounds View, 

 (Minn. 1994)); accord Smith v. City of Minneapolis, 

 (8th Cir. 2014).  Official immunity is a distinct doctrine, but “federal decisions 
interpreting qualified immunity under section 1983 . . . are instructive” and “the legal 
reasonableness  of  the  official’s  actions  is  relevant  to  whether  the  public  employee 
committed a wilful or malicious wrong.”  Rico, 

; see also Passenheim 
v. Tolbert, No. 15-cv-422 (PJS/SER), 

, at *5 (D. Minn. Nov. 21, 2016) 

(official immunity analysis did not “differ in any material respect from qualified-immunity 
analysis” under the case’s circumstances).  “[W]hether an officer acted maliciously is 
usually a question of fact for the jury.”  Kelly v. City of Minneapolis, 

, 664 
n.5 (Minn. 1999).                                                         
Here, the Complaint includes allegations plausibly showing malice.  Many of the 

same allegations supporting a “clearly established right” for qualified immunity purposes 
establish the objective unreasonableness of Redmond’s actions.  In other words, allegations 
plausibly showing that Redmond violated a clearly established First Amendment right also 
show he “ha[d] reason to know that [his] challenged conduct [was] prohibited.”  Anderson 
v. Anoka Hennepin Indep. Sch. Dist. 11, 

 (Minn. 2004).  Drawing all 
inferences in McNeally’s favor, a reasonable juror could conclude from the facts alleged 
that Redmond knowingly violated her First Amendment rights by causing her suspension 

and termination.                                                          
Redmond’s remaining challenge is that McNeally has not plausibly alleged certain 
elements of her tortious interference claim.  The parties agree that to state a claim for 
tortious interference with contract under Minnesota law, McNeally must prove: “(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.”  Kjesbo 
v. Ricks, 

 (Minn. 1994) (citation omitted).  Relevant here, “a tortious 
interference claim will lie for an at-will employment agreement.”  Nordling v. N. States 
Power Co., 

 (Minn. 1991).  “Minnesota courts protect an at-will 
employee from a tortiously[-]procured discharge even though that discharge does not 

breach any contract.”  Conrad v. Xcel Energy, Inc., No. 12-cv-2819 (PJS/FLN), 

, at *4 (D. Minn. Apr. 5, 2013).                                   
Redmond’s arguments implicate the claim’s third and fourth elements.  He first 
contends he is not plausibly alleged to have intentionally procured a breach.  ECF No. 15 
at 23; ECF No. 29 at 18–19.  This element, Redmond points out, requires McNeally to 

“prove that [Redmond] caused [HomeTown] to breach its contract” with her.  Qwest 
Commc’ns Co. v. Free Conferencing Corp., 

 (8th Cir. 2018); see 
Jensen v. Lundorff, 

 (Minn. 1960) (requiring defendants’ conduct to 
have  proximately  caused  the  breach).    Redmond’s  causation  argument  mirrors  his 
causation argument on McNeally’s § 1983 claim.  And the same allegations allowing a 
plausible inference that Redmond caused a violation of McNeally’s clearly established 
rights create a plausible inference that Redmond’s actions were a proximate cause of her 

suspension and termination.                                               
Redmond next argues that McNeally has not plausibly alleged his actions were 
without justification.  ECF No. 15 at 24–25; ECF No. 29 at 19.  “Liability for wrongful 
interference may be avoided by showing that the defendant was justified by a lawful object 
which he had a right to assert.”  Spice Corp. v. Foresight Mktg. Partners, Inc., No. 

07-cv-4767 (JNE/JJG), 

, at *18 (D. Minn. Dec. 22, 2011) (quoting 
Bennett  v.  Storz  Broad.  Co.,  

  (Minn.  1965)).    “Generally,  a 
defendant’s actions are justified if it pursues its legal rights via legal means.”  Noble Sys. 
Corp. v. Alorica Cent., LLC, 

 (8th Cir. 2008).  “Ordinarily, whether 
interference is justified is an issue of fact, and the test is what is reasonable conduct under 

the circumstances.”  Kjesbo, 

; Kallok v. Medtronic, Inc., 

 (Minn. 1998) (same).  Although described as an element of the tort, “[t]he burden 
of proving that interference with a contract was justified is on the defendant.”  Sysdyne 
Corp. v. Rousslang, 

 (Minn. 2015) (citation omitted).  
Redmond  offers  justifications  for  his  decision  to  ban  McNeally  from  District 

property.  He points out, for instance, that “Minnesota law permit[s] school officials, like 
Redmond, to limit access to school grounds.  See Minn. Stat. § 123B.02, subds, 1, 5a; 

, subd. 4(d).”  ECF No. 29 at 19.  He also cites District policy providing that 
“[a]n individual . . . may be denied permission to visit a school or school property . . . if 
the visit is not in the best interest of students, employees[,] or the school district.”  Id.; see 
ECF  No.  30-1.    There  are  problems  with  this  argument.    Redmond’s  justifications, 
whatever they might be, are not relevant at the Rule 12(b)(6) stage.  If that weren’t so, 

Redmond identifies no justification for his alleged influence on the actions comprising 
McNeally’s tortious interference claim: her suspension and termination.  See Compl. 
¶¶ 73–78.    McNeally  has  plausibly  alleged  that  Redmond’s  retaliation  caused  those 
employment decisions, and Redmond offers no “lawful object” or “legal right” to justify 
his alleged procurement of them.                                          

Based on the foregoing, and all of the files, records, and proceedings herein, IT IS 
ORDERED THAT:                                                             
1.   Defendant  Michael  Redmond’s  Motion  to  Dismiss  [ECF  No.  13]  is 
DENIED.                                                                   
2.   Defendants HomeTown Bank and Lindsey Puffer’s Motion to Dismiss [ECF 

No. 20] is DENIED.                                                        

Dated:  June 21, 2022              s/ Eric C. Tostrud                     
                              Eric C. Tostrud                        
                              United States District Court           

             UNITED STATES DISTRICT COURT                            
                DISTRICT OF MINNESOTA                                


Tara C. McNeally,                     File No. 21-cv-2614 (ECT/DTS)       

     Plaintiff,                                                      

v.                                       OPINION AND ORDER                

HomeTown Bank; Lindsey Puffer, Branch                                     
Manager and Vice President, in her                                        
individual capacity; Shakopee Public                                      
Schools, Independent School District No.                                  
720; Shakopee Public Schools Board;                                       
Michael Redmond, Superintendent, in his                                   
individual capacity; and Kristi Peterson,                                 
Board Chair, in her individual capacity,                                  

     Defendants.                                                     


Steven M. Cerny, Santi Cerny, PLLC, Minneapolis, MN, for Plaintiff Tara C. McNeally. 

Zachary A. Alter and Sara Gullickson McGrane, Felhaber Larson, Minneapolis, MN, for 
Defendant Michael Redmond.                                                

Brittany R. King-Asamoa and Jennifer G. Lurken, Gislason & Hunter LLP, Mankato, MN, 
for Defendants HomeTown Bank and Lindsey Puffer.                          

Christian R. Shafer and Adam Frudden, Ratwik, Roszak & Maloney, PA, Saint Paul, MN, 
for Defendants Shakopee Public Schools, Shakopee Public Schools Board, and Kristi 
Peterson.                                                                 


On September 27, 2021, Plaintiff Tara McNeally attended a public meeting of the 
Shakopee Public Schools Board and expressed her views regarding a student-masking 
requirement and a proposed operating levy.  After the meeting, she expressed her views 
concerning  the  in-meeting  behavior  of  the  Board’s  Chair.    Two  days  later,  the 
Superintendent for Shakopee Public Schools, Michael Redmond, barred McNeally from 
being present in any part of the school district except “in the role of a parent,” and her 
employer, HomeTown Bank, suspended her employment pending the outcome of a School 

District investigation.  HomeTown fired McNeally on October 12.  In this case, McNeally 
alleges that Defendants retaliated against her exercise of First Amendment free-speech 
rights and that Redmond tortiously interfered with her employment relationship with 
HomeTown.                                                                 
Redmond and HomeTown seek dismissal of McNeally’s Complaint under Federal 

Rule of Civil Procedure 12(b)(6), and their motions will be denied.  McNeally alleges facts 
plausibly showing that Redmond and HomeTown worked together to retaliate against 
McNeally  for  her  exercise  of  First  Amendment  rights  and  that  Redmond  interfered 
unlawfully with McNeally’s HomeTown employment.                           
                           I1                                        

McNeally  resides  in  Shakopee, Minnesota, and is the mother of two children 
enrolled in the Shakopee Public Schools.  Compl. ¶ 3 [ECF No. 1].         
Defendant Shakopee Public Schools, Independent School District No. 720 (the 
“District”) is a public school district and political subdivision of the State of Minnesota.  
Id. ¶ 6.  Defendant Shakopee Public Schools Board (the “Board”) governs the District.  Id. 


1    In accordance with the standards governing a Rule 12(b)(6) motion, the facts are 
drawn from McNeally’s Complaint and materials embraced by it.  Gorog v. Best Buy Co., 

 (8th Cir. 2014); Greene v. Osborne-Leivian, No. 19-cv-533 (ECT/TNL), 

, at *2 n.3 (D. Minn. Mar. 12, 2021), aff’d, No. 21-1937, 

 (8th Cir. 2021).                                                  
                                                                          
¶ 7.  The Board is responsible for “developing and implementing policies and procedures 
of the Board and the District, and for hiring, overseeing, and directing the activities” of the 
District’s Superintendent, Michael Redmond.  

 ¶¶ 7–8.  As Superintendent, Redmond 

“is responsible for the management and operations of the District, speaking and acting on 
behalf of the District, developing and administrating policies and procedures on behalf of 
the District, and carrying out the directives of the [] Board, the Board Chair, and its 
members.”  Id. ¶ 8.  Defendant Kristi Peterson chairs the Board.  As Chair, Peterson “is 
responsible for the overall functioning of the Board and governing of the District, speaking 

and acting on behalf of the Board and the District, overseeing the work of the Board, 
presiding over Board meetings, determining who may speak at Board meetings and for 
how long, developing and approving the agenda for Board meetings, developing and 
implementing  policies  and  procedures  on  behalf  of  the  Board  and  the  District,  and 
overseeing and directing the activities of . . . Redmond.”  Id. ¶ 9.      

HomeTown operates several bank branches in Minnesota, including one branch in 
the City of Shakopee and another inside Shakopee High School.  Id. ¶ 4.  Through its 
relationship with the District, Hometown “periodically provid[es] bank employees to 
discuss financial literacy with students, provid[es] internship opportunities to students, and 
provid[es] other services.”  Id.  Defendant Lindsey Puffer is the Branch Manager and Vice 

President of HomeTown’s Shakopee locations.  Id. ¶ 5.  “Puffer is responsible for the 
management and operations of her branch locations, developing and administering policies 
and procedures on behalf of her branch locations, speaking and acting on behalf of her 
branch  locations,  and  carrying  out  the  directives  of  the  HomeTown  Bank  Board  of 
Directors and Leadership Team.”  Id.                                      
In 2020, HomeTown hired McNeally to work as a personal banker at both of its 

Shakopee locations.  Id. ¶ 11.  McNeally’s duties “included working as a teller, opening 
and closing accounts, customer service, hiring, training, managing interns from Shakopee 
High School, [] networking,” and marketing.  Id. ¶ 12.  “On several occasions, McNeally 
also taught financial literacy to students at Shakopee Public Schools, attending various 
classes at different campuses as a guest speaker.”  Id.                   

McNeally’s twelve-year-old daughter is enrolled in the Shakopee Public Schools 
and has a medical condition “that is exacerbated by wearing a mask, and wearing a mask 
has on repeated occasions resulted in her experiencing adverse health reactions” like 
“shortness of breath, lightheadedness, tunnel vision, and fainting.”  Id. ¶ 14. 
On August 23, 2021, the Board held a public meeting during which it discussed 

“pandemic response rules and procedures developed, in part, by [a] Pandemic Response 
Advisory  Team,  a  committee  established  by  the  Board  and  whose  members  include 
Redmond  and  Peterson.”    Id.  ¶ 15.    Redmond  presented  a  resolution  that  “outlined 
recommendations and requirements for students to wear masks in school.”  Id.  The Board 
passed the resolution unanimously and authorized Redmond to “implement and enforce” 

it.  Id.                                                                  
Owing to the Board’s action, when the 2021-2022 school year began, the District 
required McNeally’s daughter to wear a mask during school.  Id. ¶ 17.  Although McNeally 
informed the District of her daughter’s medical condition, it “was not receptive to her [] 
medical needs.”  Id.  For several weeks, McNeally’s daughter was “singled out and 
repeatedly harassed and berated in front of other students on a near daily basis by a teacher 
. . . regarding the type of mask she wore over her nose and mouth.”  Id. ¶ 18.  McNeally 

reached out to school officials, and eventually Redmond, to stop the teacher’s “harassing” 
behavior.  Id.  By “late August and early September 2021, the School Defendants knew 
that McNeally opposed their position on forcing students to wear masks in school.”  Id. 
¶ 20.                                                                     
McNeally began engaging with other community members about the District’s 

mask policy.  She encouraged them to “share information” about the effect of mask-
wearing on children in school and to “raise awareness” about the Board’s actions.  Id. ¶ 25.  
McNeally co-created a Facebook group called “Parents Against Forced Masking” to 
generate  discourse  about  mask-wearing,  to  encourage  opposition  to  mask-wearing  in 
schools, and to inform parents that the Board would address mask-wearing at future 

meetings.  Id. ¶ 26.  McNeally encouraged parents to attend the next meeting and to “share 
their views and positions as to why the Board should not force students to wear masks.”  
Id. ¶ 28.  By this time, Redmond, the Board, and Board Chair Peterson knew that McNeally 
had formed the Facebook group, that she opposed a “blanket mask mandate,” and that she 
was raising awareness before the Board’s next meeting.  Id. ¶ 27.         

A “large group” of parents attended the Board’s September 13, 2021 meeting to 
voice their opposition to forced mask-wearing.  Id. ¶ 29.  Once again, Redmond presented 
to the Board about “recommendations and requirements for students to wear masks in 
school.”  Id. ¶ 30.  The mask mandate wasn’t the only significant issue on the Board’s 
September 13 agenda.  Redmond also presented in favor of a proposed operating levy that 
would be voted on by residents in a November 2021 election and spoke about “the 
consequences and budget cuts that would be made if the levy did not pass.”  Id. ¶ 30; see 

also id. ¶ 23.  Redmond, Peterson, and other Board members favored the levy’s passage.  
Id. ¶ 23.  During the meeting, McNeally and other parents used the levy to pressure the 
Board on mask-wearing.  Their position, in other words, was that “if the Board was not 
going to give proper weight and consideration to their views and opinions, then [they] 
would not vote in favor of the operating levy.”  Id. ¶ 31.  McNeally held a sign that read 

“MASKS = NO LEVY.”  Id.                                                   
On September 23, Redmond visited HomeTown’s location in the city of Shakopee 
to speak with an employee.  McNeally was working there at the time.  She asked Redmond 
“how a parent could get on the list” to speak at the Board’s next meeting.  Id. ¶ 34.  
Redmond instructed her to email the District offices but added, “You know, you do not 

want to get mixed up with that other group, you do not want to be associating with them, 
you have done so much in the community and worked your way up, it would be a shame if 
that all goes away.”  Id.  McNeally understood “that other group” to mean parents who 
opposed the operating levy.  Id. ¶ 35.                                    
McNeally attended the Board’s next meeting on September 27.  One parent spoke 

to the Board about her opposition to mask-wearing and its effect on her child’s medical 
condition.  Id. ¶ 36.  While the parent spoke, McNeally saw Peterson “repeatedly turn her 
head to look at the screen behind her”; when others spoke, Peterson turned only “once” or 
“not . . . at all.”  Id.  “It also appeared to McNeally that, unlike other speakers, Peterson 
repeatedly looked at Redmond and other Board members” and seemed “disinterested” in 
the presentation.  Id.                                                    
Afterward, McNeally and other parents took to Facebook to express their views on 

topics raised during the meeting.  “[D]ozens of parents” commented on a post by the 
official Facebook account of a member of Minnesota’s House of Representatives.  Id. 
¶¶ 38–39.  McNeally posted a comment from her personal Facebook account:  
     I personally was really disappointed in board member Kristi     
     Peterson tonight.  She was turning around to watch the clock    
     time while Amanda was speaking about her daughters [sic]        
     struggle with her disability and masking.  She did it multiple  
     times!  So rude.  I know that most people don’t have ill will   
     toward these children. . . . but that lady showed she has NO    
     HEART!  Who does that???                                        

Id. ¶ 39; see ECF No. 17-1 at 2.                                          
The  next  day,  September  28,  Redmond  and  Puffer  met  for  lunch.    Redmond 
“instructed Puffer to direct McNeally to delete” the Facebook post.  Compl. ¶ 45.  During 
the lunch, Puffer sent McNeally a text message: “Hey . . . any way you could take down 
your post on Kristi Peterson?  We’ll talk later about it . . . but the school is pretty upset.”  
Id.  McNeally responded via text message by asking “who the school was”; Puffer replied 
that it was the “District offices.”  Id. ¶ 46.  McNeally and Puffer met later that afternoon.  
Puffer explained that “Peterson and another Board member” were “behind the issue.”  Id. 
¶ 47.  Puffer repeated that “she had been instructed by Redmond that the school wanted the 
[Facebook post] taken down,” adding that McNeally had “worked very hard” and did “not 
want it to all be for nothing.”  Id.  McNeally refused to delete the post.  Id. 
The next day, September 29, Puffer informed Redmond that McNeally would not 
delete the Facebook post.  Id. ¶ 48.  Redmond, in turn, “instructed Puffer to suspend 
McNeally until she deleted” it.  Id.  Later that day, Redmond emailed Puffer from his 

District email address, copying the District’s human resources director: “As a follow up to 
our brief conversation, I’ve shared my concerns in the attached letter.”  Id. ¶ 49.  Attached 
to the email was a letter on District letterhead and from “Superintendent Mike Redmond.”  
Id.  The letter stated in part:                                           
     It has been reported to me that Tara Mcnealy [sic] has made a   
     post on social media (I believe on Facebook) that is very       
     inappropriate  and  demeaning.    The  subject  of  this  post  is 
     School Board Chair, Kristi Peterson.  The characterization in   
     this post is untrue.  If this same post were made by an employee 
     of  Shakopee  Public  Schools,  it  would  be  considered       
     insubordination, and the event would be referred to our Human   
     Resources Department for appropriate disciplinary action.       

                         * * *                                       
     It has also been reported to me that Tara Mcnealy [sic] has     
     reached out to some form of media and wrongly accused Kristi    
     Peterson of contacting HomeTown Bank regarding this matter.     

     Effective immediately, until such time as an investigation of   
     this allegation has been completed by HomeTown Bank and         
     Shakopee Public Schools, I am requesting you to direct Tara     
     Mcnealy [sic] to not be present in the school zone, or any      
     school building, in any capacity of the school district and bank 
     partnership.  As Ms. Mcneally [sic] is a parent of two students 
     attending  Shakopee  Public  Schools,  she  may  certainly  be  
     present at Sweeney Elementary and West Middle School in the     
     role of a parent.  She may not be present in any other part of  
     the school district, without my express permission, until the   
     investigation is concluded.                                     
Id.; ECF No. 17-1 at 2–3.2  Minutes after receiving Redmond’s email and attached letter, 
Puffer called McNeally and told her that “because she would not delete the [Facebook post] 
and in light of the [letter] banning her from school grounds and thus banning her from 

working at the bank’s location at the Shakopee High School, . . . she was suspended 
without pay effective immediately pending the outcome of the District’s investigation.”  
Compl. ¶ 50.  Puffer told McNeally there was “no longer [] a position for her at the [other] 
Shakopee location.”  Id.  Puffer also said that HomeTown would be conducting its own 
investigation.  Id.                                                       

Neither the Bank Defendants nor School Defendants contacted McNeally about an 
investigation.    Id.  ¶ 51.    On  October  12,  2021,  HomeTown  terminated  McNeally’s 
employment.  Id.                                                          
McNeally filed this lawsuit in December 2021.  In her Complaint, she asserts one 
count of First Amendment retaliation under 

 against all Defendants, 

 

¶¶ 60–72, and a second count for “Tortious Interference with Employment Agreement” 
against  Redmond  in  his  individual  capacity,  

  ¶¶ 73–78.    McNeally  alleges  that 
Defendants played varying roles in “conspiring to secure and subsequently securing [her] 
suspension and termination” for engaging in First Amendment protected activity.  Id. ¶ 66.  
McNeally alleges she engaged in protecting activity by: (1) “attending the school Board 

meetings,” (2) “holding a sign that identified her viewpoints on matters of public concern 
and matters that were a topic of discussion of the Board,” (3) “forming a group to raise 


2    Just to be clear, Redmond misspelled McNeally’s name throughout his letter. 
public awareness of matters that were pending before the Board,” and (4) “expressing 
concerns of the actions of an elected official based on events that are factually accurate.”  
Id. ¶ 62.  She alleges that the District, Redmond, the Board, and Peterson acted under color 

of state law, and that HomeTown and Puffer were “willful participants in joint activity” 
with them.   Id. ¶¶ 67–68.  McNeally also alleges that, but for Redmond’s unlawful 
interference with her employment, she “would not have been suspended or terminated from 
HomeTown.”  Id. ¶¶ 74–77.  She seeks monetary and injunctive relief.  Id. at 29.  Redmond, 
HomeTown, and Puffer have moved to dismiss the claims asserted against them under 

Federal Rule of Civil Procedure 12(b)(6).  ECF Nos. 13, 20.               
                           II                                        

In reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6), a 
court must accept as true all factual allegations in the complaint and draw all reasonable 
inferences in the plaintiff’s favor.  Gorog, 

.  Although the factual allegations 
need not be detailed, they must be sufficient to “raise a right to relief above the speculative 
level.”  Bell Atl. Corp. v. Twombly, 

 (2007).  The complaint must “state 
a claim to relief that is plausible on its face.” 

.  “A claim has facial plausibility 
when the plaintiff pleads factual content that allows the court to draw the reasonable 
inference that the defendant is liable for the misconduct alleged.”  Ashcroft v. Iqbal, 

 (2009).                                                     
                           A                                         
Redmond moves to dismiss McNeally’s First Amendment retaliation claim for 
failure to plausibly allege essential elements of the claim and on qualified immunity 

grounds.  Each argument is considered in turn.                            
                           1                                         
To state a First Amendment retaliation claim under 

, McNeally 
must allege that: “(1) [s]he engaged in a protected activity, (2) the government official[s] 
took adverse action against [her] that would chill a person of ordinary firmness from 

continuing in the activity, and (3) the adverse action was motivated at least in part by the 
exercise of the protected activity.”  Bennie v. Munn, 

 (8th Cir. 2016) 
(citation omitted).                                                       
Redmond does not dispute that McNeally engaged in protected First Amendment 
activity.  He challenges the second and third elements, arguing that McNeally has not 

“plausibly show[n] Redmond . . . took (or caused others to take) an adverse action” or that 
his “retaliatory motive was the but-for cause of HomeTown’s decision to suspend or 
terminate [her].”  ECF No. 29 at 13–16.  Redmond says the only legally sufficient adverse 
actions taken against McNeally were her suspension and termination, and that allegations 
of  his  involvement  in  those  actions  are  conclusory  and  impermissibly  alleged  on 

information and belief.  Id.; ECF No. 15 at 17–19.  McNeally argues that the adverse 
actions sweep more broadly and include, not only her suspension and termination, but also 
Redmond’s “threats” and his decision to ban her from District property, which she alleges 
inhibited her ability to attend Board meetings and “from voting in the November election 
unless she first received [his] permission.”  ECF No. 27 at 19–21.        
Begin with the standards for determining when conduct might “chill a person of 

ordinary firmness” from engaging in protected activity.  According to the Eighth Circuit: 
     The ordinary-firmness test is . . . designed to weed out trivial 
     matters from those deserving the time of the courts as real and 
     substantial  violations  of  the  First  Amendment.    . . .     In 
     applying this “test,” we are mindful of the words of Judge      
     Posner in Bart v. Telford, 

 (7th Cir. 1982):   

       The effect on freedom of speech may be small, but since       
       there  is  no  justification  for  harassing  people  for     
       exercising their constitutional rights it need not be great   
       in order to be actionable.                                    

     The test is an objective one, not subjective.  The question is not 
     whether the plaintiff herself was deterred, though how plaintiff 
     acted might be evidence of what a reasonable person would       
     have done.  . . .  What would a person of “ordinary firmness”   
     have done in reaction to the [adverse action]?  Would he or she 
     have simply ignored [it], or would he or she have been slowed   
     down, at least to some degree?                                  

Garcia v. City of Trenton, 

, 728–29 (8th Cir. 2003).  “In some cases, 
embarrassment, humiliation and emotional distress may be sufficient to support a § 1983 
claim.”  Naucke v. City of Park Hills, 

, 928 (8th Cir. 2002).  But an adverse 
action is more likely shown when an official causes the plaintiff to experience “concrete 
consequences.”  Scheffler v. Molin, 

 (8th Cir. 2014).  In Garcia, for 
instance, a mayor’s issuance of $35 in retaliatory parking tickets over less than two months 
was enough to chill a person of ordinary firmness and supported a jury verdict on the 
plaintiff’s retaliation claim.  

.                          
McNeally  has  alleged  facts  plausibly  showing  that  Redmond took  or  directed 
adverse actions that would chill the speech of a person of ordinary firmness.  Redmond met 
with Puffer, McNeally’s supervisor, and urged her to direct McNeally to delete a Facebook 

post critical of a Board member.  Just one day later—after McNeally refused to delete the 
post—Redmond  restricted  McNeally’s  ability  to  access  District  property  pending 
investigations into her conduct.  

 ¶¶ 45–50.  This ban carried concrete consequences for 
McNeally.  It deprived her of the ability to work at HomeTown’s Shakopee High School 
location whether HomeTown suspended her or not.  McNeally also was unable to attend 

Board meetings in person and, she says, prevented from “voting on the levy in the 
November election, unless she first obtained Redmond’s permission to vote, as early votes 
were required to be cast at the District’s office and votes were required to be cast at West 
Middle School on election day, an activity related to her residence in Shakopee and not her 
role as a parent.”  Id. ¶¶ 52, 65.  A reasonable jury could find that this aspect of Redmond’s 

conduct—his decision to exclude McNeally from District property—would cause a person 
of ordinary firmness to “have been slowed down, at least to some degree.”  Garcia, 

.                                                              
Redmond seems to suggest that McNeally was not actually deprived of her ability 
to attend Board meetings, but this is not persuasive.  Redmond first asserts that his letter 

“said nothing which restricted [McNeally] from attending school Board meetings.”  ECF 
No. 15 at 15 n.7.  It is at least plausible, however, that a reasonable person would 
understand the letter to forbid attendance at Board meetings.  Compare ECF No. 17-1 at 
2–3 (“As Ms. Mcnealy [sic] is a parent of two students attending Shakopee Public Schools, 
she may certainly be present at Sweeney Elementary and West Middle School in the role 
of a parent.  She may not be present in any other part of the school district, without my 
express permission, until the investigation is concluded.”) (emphasis added), with Compl. 

¶ 52 (alleging that all Board meetings were “scheduled to be held at the Shakopee High 
School or District Office”).  Redmond also filed a news article dated October 7, 2021, 
reporting that the District clarified that “a parent in [McNeally’s] situation can certainly 
attend a school board meeting.”  ECF No. 17-1 at 12.  This isn’t persuasive, either, though 
for a somewhat different reason: determining that McNeally could freely attend Board 

meetings based on an extra-pleading news article would entail drawing inferences that are 
not appropriate at this Rule 12(b)(6) stage.  Finally, Redmond points out that Board 
meetings are livestreamed and available to the public on YouTube, meaning McNeally was 
able to view them “virtually.”  ECF No. 15 at 15 n.7.  Redmond cites no authority to support 
the  proposition  that  the  option  to  live  stream  a  school  board  meeting  excuses  any 

constitutional  violations  associated  with  forbidding  a  citizen’s  in-person  attendance.  
Courts to consider the sufficiency of telephonic or similar alternatives for school board 
meeting attendance have ruled for plaintiffs asserting First Amendment claims.  See Cyr v. 
Addison Rutland Supervisory Union, 

, 549–50 (D. Vt. 2014) (holding 
that telephonic participation option was inadequate alternative); Wilson v. N. E. Ind. Sch. 

Dist., 5:14-CV-140-RP, 

, at *4–6 & n.2 (W.D. Tex. Sept. 30, 2015) 
(holding that “permission to write the board or send a representative to the board meetings 
on her behalf” was inadequate alternative to in-person attendance); Teufel v. Princeton City 
Sch. Dist. Bd. of Educ., No. 1:12-cv-355, 

, at *14 (S.D. Ohio Jan. 11, 
2013) (holding that alternative channels of communication with board members outside of 
public meeting were inadequate alternatives).                             
Redmond argues that McNeally does not plausibly allege his involvement in her 

suspension and termination.  This deficiency, he says, means McNeally has not pleaded 
the causation element of her First Amendment retaliation claim.  ECF No. 15 at 18–19; 
ECF No. 29 at 13–16.  This argument implicates general and context-specific causation 
principles.                                                               
To establish causation generally, McNeally “must show that a reasonable jury could 

find that a retaliatory motive of the government official was a ‘but-for cause’ of the adverse 
action, ‘meaning that the adverse action against the plaintiff would not have been taken 
absent the retaliatory motive.’”  Graham v. Barnette, 

 (8th Cir. 2021) 
(quoting Nieves v. Bartlett, 

, 1722 (2019)).  “[U]nless the issue of causation 
is ‘so free from doubt as to justify taking it from the jury,’ the issue should be tried.”  

Lawrence v. City of St. Paul, 

 (D. Minn. 2010) (quoting Revels 
v. Vincenz, 

 (8th Cir. 2004)); De Rossitte v. Correct Care Sols., LLC, 

  (8th  Cir.  2022)  (same).    As  with  other  retaliation  causes  of  action, 
“chronology” allegations can “support [a] circumstantial claim of retaliatory action” in the 
First Amendment context.  L.L. Nelson Enters., Inc. v. Cnty. of St. Louis, Mo., 

 (8th Cir. 2012); see also Wilson v. Northcutt, 

 (8th Cir. 2006) 
(“Temporal proximity is relevant but not dispositive.”).                  
Also  relevant  here,  McNeally  must  plausibly  allege  Redmond’s  “direct 
responsibility for[] the deprivation of rights.”  Turner v. Mull, 

 (8th Cir. 
2015) (citation omitted).  The “requisite causal connection [between the government 
conduct and the deprivation] can be established not only by some kind of direct personal 
participation in the deprivation but also by setting in motion a series of acts by others which 

the actor knows or reasonably should know would cause others to inflict the constitutional 
injury.”  Waddell v. Forney, 

 (8th Cir. 1997) (quoting Merritt v. Mackey, 

 (9th Cir. 1987)).  Courts consider the “the defendant’s level of 
authority over and involvement in [an] adverse employment action.”  Brown v. Off. of State 
Comptroller, 

 (D. Conn. 2016).  Further, “retaliation against 

protected speech can result in section 1983 liability even if it ultimately is carried out by a 
private actor.”  Pendleton v. St. Louis Cnty., 

 (8th Cir. 1999).  Thus, 
causation may be shown by a government official’s exertion of influence or authority over 
a private actor—i.e., a plaintiff’s employer—to effect some act of retaliation against a third 
party.  See Helvey v. City of Maplewood, 

 (8th Cir. 1998) (First 

Amendment retaliation claim supported by allegation that police officer “used his position 
of authority to cause [plaintiff’s boss] to fire her in retaliation for the testimony she gave”); 
Pendleton,  178  F.3d  at  1010–11  (First  Amendment  retaliation  claim  supported  by 
allegations  that  state  actor  conspired  with  private  employer  to  “force[]  [plaintiff]  to 
resign”).                                                                 

Here, McNeally alleges facts plausibly showing Redmond’s direct participation in 
her suspension and termination and that a retaliatory motive was the but-for cause of those 
decisions.  It’s reasonable to infer that the District and Redmond wield influence over 
HomeTown, including because “the District permit[s] HomeTown Bank to operate a 
location at the Shakopee High School.”  Compl. ¶ 43.  Redmond has “attend[ed] private 
meetings of [HomeTown’s] Board of Directors” and “formed relationships with those in 
control of HomeTown,” including Puffer, its Board, and its “Leadership Team.”  

  

McNeally also alleges facts plausibly showing Redmond drew on that influence to retaliate 
against her.  Redmond helped to develop the District’s mask-wearing policy and supported 
the operating levy.  McNeally opposed—and generated opposition to—both.  Id. ¶¶ 23, 30, 
33.  Redmond expressed his displeasure to McNeally by telling her she “did not want to 
get mixed up with that group” because she had “done so much in the community and 

worked [her] way up, [so] it would be a shame if that all goes away.”  Id. ¶ 34.  And just 
one day after McNeally advocated her views at a Board meeting and criticized Peterson on 
Facebook, Redmond met with Puffer and instructed her to have McNeally delete her 
Facebook post.  Id. ¶ 45.  Puffer twice asked McNeally to delete the post, including during 
her meeting with Redmond, relaying that the “school [was] pretty upset,” and then later 

explaining that “she had been instructed by Redmond that the school wanted the [p]ost to 
be taken down,” and “repeat[ing], near verbatim, the same threat that Redmond had made 
to McNeally.”  Id. ¶¶ 45, 47.  Redmond and Puffer spoke the next day “to discuss McNeally 
and whether Puffer was able to force McNeally to delete the [p]ost.”  Id. ¶ 48.  On learning 
that McNeally refused, Redmond wrote a letter—not to McNeally, but to her employer—

severely restricting her access to District property pending “investigations” by the District 
and HomeTown.  Id. ¶ 49; see ECF No. 17-1 at 2–3 (banning McNeally from District 
properties “until such time as an investigation . . . has been completed by HomeTown Bank 
and Shakopee Public Schools”).  Minutes later, alleges McNeally, Puffer suspended her 
immediately  and  without  pay based  on  her  refusal  to  delete  the  Facebook  post  and 
Redmond’s decision to restrict her access to District property, including “the bank’s 
location  at  the  Shakopee  High  School.”    Compl.  ¶ 50.    McNeally’s  suspension  was 

“effective immediately pending the outcome of the District’s investigation.”  Id.  And, 
consistent  with  Redmond’s  letter,  Puffer  said  HomeTown  would  also  investigate 
McNeally’s conduct.  Id.  Two weeks later, HomeTown and Puffer terminated McNeally’s 
employment.  Id. ¶ 51.  HomeTown terminated McNeally even though she worked more 
often  at  its  other  Shakopee  location—a  location  that  was  “short  staffed.”    Id.  ¶ 50.  

Accepted as true, these allegations plausibly show Redmond’s retaliatory motive and, at 
minimum, that he “set in motion a series of acts” he reasonably should have known would 
cause McNeally’s suspension and termination.                              
                           2                                         
A government official is entitled to qualified immunity unless his “conduct violated 

a clearly established constitutional or statutory right of which a reasonable [official] would 
have known.”  Moore-Jones v. Quick, 

 (8th Cir. 2018) (citation omitted).  
“To overcome qualified immunity, the plaintiff must plead facts showing (1) that the 
official violated a statutory or constitutional right, and (2) that the right was clearly 
established at the time of the challenged conduct.”  LeMay v. Mays, 

 (8th 

Cir. 2021) (cleaned up).  “The Supreme Court has repeatedly ‘stressed the importance of 
resolving immunity questions at the earliest possible stage in litigation.’”  Dillard v. 
O’Kelley, 

 (8th Cir. 2020) (en banc) (citation omitted), cert. denied, 

 (2021).  Still, to prevail on his motion to dismiss, Redmond must show he 
is “entitled to qualified immunity ‘on the face of the complaint.’”  Baude v. Leyshock, 

 (8th Cir. 2022) (quoting Stanley v. Finnegan, 

 (8th Cir. 
2018)).                                                                   

Redmond argues he is entitled to qualified immunity because McNeally has not 
alleged the deprivation of a clearly established right.  ECF No. 15 at 8–16; ECF No. 29 at 
3–12.  McNeally counters that Redmond’s actions violated her clearly established First 
Amendment right “to critique an elected school official.”  ECF No. 27 at 25–29.  McNeally 
also says she was deprived of clearly established rights to “freedom of expression, to 

assemble, and to petition the government for a redress of grievances.”  

 at 26 n.13.  
McNeally says these rights were violated by (1) her suspension and termination; and (2) 
Redmond’s decision to restrict her access to District property, which “banned” her from 
attending Board meetings or voting in the District’s November 2021 election without his 
prior permission.                                                         

The parties disagree on the specificity with which a clearly established right must 
be defined.  “To be clearly established, a legal principle must have a sufficiently clear 
foundation in then-existing precedent.”  District of Columbia v. Wesby, 

 
(2018).  “This demanding standard protects ‘all but the plainly incompetent or those who 
knowingly violate the law.’”  

 (citation omitted).  A plaintiff must “point to existing 

circuit  precedent  that  involves  sufficiently  ‘similar  facts’  to  ‘squarely  govern’”  the 
official’s conduct “in the specific circumstances at issue, or, in the absence of binding 
precedent, . . . ‘a robust consensus of cases of persuasive authority’ constituting settled 
law.”  Graham, 

 (internal citations omitted).  Courts should not “define 
clearly established law at a high level of generality, since doing so avoids the crucial 
question whether the official acted reasonably in the particular circumstances that he or she 
faced.”  Wesby, 

 (quoting Plumhoff v. Rickard, 

 

(2014)).  Yet “a general constitutional rule already identified in the decisional law may 
apply with obvious clarity to the specific conduct in question.”  Taylor v. Riojas, 

, 53–54 (2020) (per curiam) (quoting Hope v. Pelzer, 

 (2002)).  In 
other words, “officials can still be on notice that their conduct violates established law even 
in novel factual circumstances.”  Hope, 

.                  

McNeally understates what it takes to show a clearly established right.  McNeally 
reduces the inquiry to “whether [she] exercised constitutionally protected rights, and if so, 
then any form of retaliation is impermissible.”  ECF No. 27 at 25.  There is no question 
that certain rights McNeally identifies at various points—the rights to speak on matters of 
public  concern,  to  critique  public  officials,  to  vote,  to  assemble,  and  to  petition  the 

government for redress of grievances—are established in the abstract.  But the proper 
analysis examines the “specific actions” of the official—not whether some right is clearly 
established “at the most general level of legal abstraction.”  Sisney v. Reisch, 

, 
845–46 (8th Cir. 2009) (citations omitted); see, e.g., Young v. Mercer Cnty. Comm’n, 

, 735–36 (8th Cir. 2017).  Thus, the salient qualified immunity question is not 

simply whether Redmond retaliated against McNeally for exercising a First Amendment 
right, but whether the allegations plausibly show that a reasonable official in Redmond’s 
position would have known his alleged conduct would violate a clearly established right.  
See Hope, 536 U.S. at 740–41.                                             
Turning to the clearly established rights that McNeally asserts, start with allegations 
that Redmond conspired with school officials to have McNeally suspended and fired.  A 
reasonable official in Redmond’s shoes would have had fair notice that he could not 

retaliate  against  protected  speech  by  exerting  authority  or  influence  over  a  person’s 
employer to effect an adverse employment action against them.  The Eighth Circuit has 
held  that,  “[a]s  of  1989,  the  right  to  be  free  from  government  interference  with  an 
employment relation was clearly established by our court in Chernin v. Lyng, 

 
(8th Cir. 1989).”  Waddell, 

.  In Chernin, a federal agency denied inspection 

services to a meatpacking company “on the ground that the involvement of [the plaintiff], 
a convicted felon, rendered [its] plant unfit for operation.”  874 F.2d at 502–03.  The 
plaintiff alleged that, after bringing the denial of the company’s application before an 
administrative law judge, the agency applied “economic pressure” and forced the company 
to enter a stipulation and consent decision under which it would “permanently divest [him] 

of any connection to its operations,” “deny him access to its plant,” and not consult or do 
business with him.  Id. at 503.  In reversing the dismissal of the plaintiff’s due process 
claim, the Eighth Circuit held that at-will employees “have a right enforceable in law 
against third parties who unlawfully interfere with the employment relation.”  Id. at 
504–06.                                                                   

Post-Chernin, the clearly established right to be free from government interference 
with an at-will employment relationship extends to adverse employment actions that are 
taken in retaliation to protected speech.  See Helvey, 

 (“Helvey’s allegation 
that Corcoran used his position of authority to cause Thomas to fire her in retaliation for 
the testimony she gave concerning the incident involving Maplewood police officers stated 
a [First Amendment] claim under section 1983.”); Pendleton, 

 
(plaintiffs stated First Amendment retaliation claim and defeated qualified immunity by 

alleging state actor “contacted their employers to have them terminated or disciplined” and 
conspired with one employer, who “forced [plaintiff] to resign”); Waddell, 108 F.3d at 
894–95 (due-process plaintiff defeated summary judgment with evidence that agency 
conditioned  his  employer’s  continued  deposit  insurance  on  its  terminating  his 
employment).  To be sure, these cases involve dissimilar facts in some respects.  None 

involve retaliation by a government actor for a plaintiff’s criticism of an elected school 
official or analyzed claims against a superintendent or comparable school employee.  But 
a clear rule does emerge: a government actor may not retaliate against an individual’s 
protected First Amendment activity by exerting influence over her employer to cause an 
adverse employment action.  At this stage, Redmond is not entitled to qualified immunity 

for his alleged role in her suspension and termination.                   
McNeally also contends that Redmond’s decision to restrict her access to District 
Property  violated  clearly  established  First  Amendment  rights.    To  recap,  Redmond 
communicated the following in his letter to Puffer:                       
     Effective immediately, until such time as an investigation of   
     this allegation has been completed by HomeTown Bank and         
     Shakopee Public Schools, I am requesting you to direct Tara     
     Mcnealy [sic] to not be present in the school zone, or any      
     school building, in any capacity of the school district and bank 
     partnership.  As Ms. Mcneally [sic] is a parent of two students 
     attending  Shakopee  Public  Schools,  she  may  certainly  be  
     present at Sweeney Elementary and West Middle School in the     
     role of a parent.  She may not be present in any other part of  
     the school district, without my express permission, until the   
     investigation is concluded.                                     

ECF No. 17-1 at 2–3.3                                                     
McNeally seems to say Redmond’s action violated clearly established rights in two 
respects.  First, she alleges that Redmond’s letter “banned [her] from attending all future 
Board meetings[,] as those meeting were scheduled to be held at the Shakopee High School 
or District Office.”  Compl. ¶ 52; see also id. ¶¶ 63, 66.  Redmond’s actions caused 
McNeally to “cease[] attending Board meetings.”  Id. ¶ 65.  Second, McNeally alleges she 
was “banned from voting on the levy in the November [2021] election, unless she first 
obtained Redmond’s permission to vote, as early votes were required to be cast at the 
District’s office and votes were required to be cast at West Middle School on election day, 

an activity related to her residency in Shakopee and not her role as a parent.”  Id. ¶ 52; see 
also id. ¶¶ 63, 66.  McNeally alleges that Redmond’s decision to exclude her from District 
property was in retaliation for her protected activity, including her viewpoint expression.  
Id. ¶¶ 53–59, 62–63, 65, 68–70; see also id. ¶ 70 (alleging Redmond acted “in furtherance 
of a policy, custom, and practice of ignoring, suppressing, and silencing the views of 




3    It’s not clear if, when, or how Redmond withdrew the restrictions described in his 
letter.    McNeally  asserts  she  “was  never  contacted  by  the  District  pursuant  to  an 
investigation, and thus the ban is still in place . . . .”  ECF No. 27 at 12 n.3.  In her 
Complaint, McNeally alleges she was “never contacted” by any Defendant about an 
investigation, Compl. ¶ 51, and the District, the Board, and Peterson admit that the District 
did not conduct one, Joint Answer ¶ 26 [ECF No. 19].  At this stage, the pleadings permit 
a reasonable inference that, as of the time she filed suit, no Defendant had informed 
McNeally that the letter’s restrictions were lifted.                      
parents  who  oppose  the  School  Defendants’  agenda,  and  intimidating,  targeting, 
threatening, and retaliating against parents who oppose their views and opinions”). 
Start with the impact on McNeally’s ability to attend school board meetings, which 

requires a broader overview of the law governing public access to property.  The “First 
Amendment does not guarantee access to property simply because it is owned or controlled 
by the government.”  Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 

 
(1983) (quoting U.S. Postal Serv. v. Greenburgh Civic Ass’n, 

 (1981)).  
“The existence of a right of access to public property and the standard by which limitations 

upon such a right must be evaluated differ depending on the character of the property at 
issue.”  Id. at 44.  “Limited public forums (sometimes called nonpublic forums) include 
public properties that are not by tradition or designation public forums but have been 
opened by the government for limited purposes, communicative or otherwise.”  Powell v. 
Noble, 

 (8th Cir. 2015) (citation omitted).  A public-school district’s use 

of an otherwise nonpublic venue, such as school or district property, to conduct public 
school board meetings creates a limited public forum.  See, e.g., Green v. Nocciero, 

 (8th Cir. 2012); Davison v. Rose, 

 (4th Cir. 2021).  A 
limited public forum may be “limited to use by certain groups or dedicated solely to the 
discussion of certain subjects,” but the government’s restrictions must be “reasonable and 

viewpoint-neutral.”  Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of 
Law v. Martinez, 

, 679 n.11 (2010) (citation omitted).  “[A] restriction on 
access to a limited public forum must be ‘reasonable in light of the purpose served by the 
forum.’”  Viewpoint Neutrality Now! v. Regents of Univ. of Minn., 

, 
920 (D. Minn. 2021) (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 

 (1985)).                                                    
Binding and persuasive authorities show that the right not to be excluded from a 

public board meeting in retaliation for First Amendment activities is clearly established.  
Start with the Supreme Court’s decisional law, from which “[g]eneral statements of the 
law” may provide “fair and clear warning that an official’s actions are unlawful.”  Morris 
v. Zefferi, 

 (8th Cir. 2010) (cleaned up).  “[T]he law is settled that as a 
general matter the First Amendment prohibits government officials from subjecting an 

individual to retaliatory actions . . . for speaking out.”  Hartman v. Moore, 

 (2006).  More pointedly, the Supreme Court has held that “when [a] [school] board 
sits in public meetings to conduct public business and hear the views of citizens, it may not 
be required to discriminate between speakers on the basis of . . . the content of their 
speech.”  City of Madison, Joint Sch. Dist. No. 8. v. Wisc. Pub. Emp. Rels. Comm’n, 

, 175–76 (1976).  In City of Madison, “[t]he First Amendment was violated when 
[school board] meetings were suddenly closed to one segment of the public even though 
they otherwise remained open for participation by the public at large.”  Minn. State Bd. for 
Cmty. Colls. v. Knight, 

 (1984).  Thus, Supreme Court precedent makes 
clear  that  the  First  Amendment  prohibits  “the  selective  closure  of  a  generally  open 

forum”—including a public school board meeting.  

  Our Eighth Circuit has reinforced 
these limits on denying access to public school board meetings.  In Green v. Nocciero, the 
Court observed that a school board “could reasonably restrict public access to [its meeting] 
‘based on the subject matter of the speech, on the identity or status of the speaker, or on 
the practical need to restrict access for reasons of manageability or the lack of resources to 
meet total demand.’”  

 (quoting Victory Through Jesus Sports v. Lee’s 
Summit R–7 Sch. Dist., 

, 334–35 (8th Cir. 2011)).  This ability, it continued, 

“necessarily included the authority to remove an unruly or disruptive member of the 
audience ‘to prevent his badgering, constant interruptions, and disregard for the rules of 
decorum.’”  

 (quoting Eichenlaub v. Twp. of Indiana, 

, 281 (3d Cir. 2004)).  
“But having chosen to conduct its business in public and to hear citizen views, the Board 
could not deny access to the meeting and, while it could limit the subject matter of citizen 

comments, it could not discriminate against a speaker based on his viewpoint.”  Id. at 754 
(emphasis added).  These cases gave fair and clear warning to a reasonable official in 
Redmond’s position that denying access to a public-school board meeting in retaliation to 
someone’s (1) criticism of a school board member on Facebook and (2) advocacy for an 
opposing view on matters before the school board—here, the District’s mask-wearing 

policy and a proposed operating levy—would violate a person’s clearly established First 
Amendment rights.  See also Johnson v. Perry, 

, 175–76 (2d Cir. 2017) 
(finding clearly established right “not to be excluded, based on viewpoint differences or 
because of possible annoyance,” from accessing school’s gymnasium during use as limited 
public forum); Reza v. Pearce, 

 (9th Cir. 2015) (rejecting qualified 

immunity  and  observing  “fundamental  principle  that  the  government  can  remove  an 
individual from a limited public forum only if the individually actually disrupts the 
proceedings”).                                                            
To show that the denial of access to Board meetings did not violate a clearly 
established right, Redmond cites a decision granting qualified immunity to school board 
members who prohibited a plaintiff from attending board meetings, attending a school’s 

extracurricular activities, and being physically present on the school’s campus.  See Barna 
v. Bd. of Sch. Dirs., 

, 140–41 (3d Cir. 2017).  In Barna, the school board’s 
action followed disruptive behavior and threats by the plaintiff at an earlier meeting, 
issuance of a letter warning the plaintiff that “he could attend [b]oard meetings but would 
be banned from future attendance if he engaged in threatening or disorderly conduct,” and 

the plaintiff’s failure to heed this warning by behaving disorderly at a subsequent meeting.  

.  In its qualified immunity analysis, the court carefully (and consistently) 
described the at-issue right as the “right to participate in school board meetings despite 
engaging in a pattern of threatening and disruptive behavior.”  

 (3d Cir. 2017) (emphasis added).  The court concluded that “given the state of the law 

at the time of the Board’s ban, there was, at best, disagreement in the Courts of Appeals as 
to the existence of a clearly established right to participate in school board meetings despite 
engaging in [such] behavior.”  

.  This case is materially different.  There are no 
allegations  that  McNeally  was  denied  access  to  Board  meetings  for  threatening  or 
disorderly behavior.                                                      

                           B                                         
HomeTown and Puffer advance essentially two reasons why McNeally has not 
stated a § 1983 First Amendment retaliation claim against them.  First, they say McNeally 
has not alleged the deprivation of a constitutional right.  ECF No. 22 at 6–9.  As discussed, 
McNeally has plausibly alleged the deprivation of her clearly established right to be free 
from adverse employment actions caused by government interference with her at-will 
employment  relationship.    This  conclusion  applies  equally  to  her  claims  against 

HomeTown and Puffer.  Second, HomeTown and Puffer say McNeally has not alleged 
facts plausibly showing their willful participation in a conspiracy with Redmond, the 
District, the Board, or Peterson.  ECF No. 22 at 9–15; ECF No. 31 at 4–16.  HomeTown 
and Puffer assert that McNeally’s conspiracy allegations are “conclusory” and fatally 
reliant on mere “parallel conduct.”  ECF No. 22 at 9–13.                  

A private actor may be held liable under § 1983 if it is a “willful participant in joint 
activity with the State or its agents.”  Gibson v. Regions Fin. Corp., 

 (8th 
Cir. 2009) (quoting Lugar v. Edmondson Oil Co., 

 (1982)).  “[B]oth state 
officials and private actors may be liable under § 1983 for conspiring to retaliate against 
protected speech, if the evidence shows the requisite agreement to violate or disregard the 

law.”  Dossett v. First State Bank, 

 (8th Cir. 2005) (citing Pendleton, 

).    “[A]  plaintiff  must  establish  not  only  that  a  private  actor  caused  a 
deprivation of constitutional rights, but that the private actor willfully participated with 
state officials and reached a mutual understanding concerning the unlawful objective of a 
conspiracy.”  

  “[A]lleging that two people had the opportunity to conspire—i.e. that 

they could have met with each other, or called each other, or emailed each other—is 
obviously not sufficient to ‘nudge[]’ a conspiracy claim ‘across the line from conceivable 
to plausible.’”  Lawrence, 

 (quoting Twombly, 

) 
(emphasis in original); see Magee v. Trs. of Hamline Univ., Minn., 

 (8th 
Cir. 2014).  But “[t]he elements of a conspiracy are often established through circumstantial 
evidence, and ‘the question of the existence of a conspiracy to deprive the plaintiffs of their 
constitutional rights’ can be inferred from the circumstances to demonstrate a ‘meeting of 

the minds’ or understanding among the conspirators to achieve the conspiracy’s aims.”  
Tirado v. City of Minneapolis, 

, 845 (D. Minn. 2021) (citation omitted).   
Here, the Complaint’s allegations permit a plausible inference that a meeting of the 
minds  occurred  between  Puffer  and  Redmond  to  retaliate  against  McNeally  for  her 
protected activity.  This case is unlike Lawrence, on which the Bank Defendants rely, 

because McNeally alleges more than mere opportunity and parallel conduct.  As discussed, 
the allegations plausibly show Redmond’s influence over HomeTown, his support for the 
mask-wearing policy and proposed operating levy, and his displeasure with McNeally’s 
efforts to oppose those measures (i.e., her viewpoint).  Critical to showing a meeting of the 
minds are the events following McNeally’s Facebook post.  Redmond met with Puffer the 

next day, and during that meeting Puffer asked McNeally to delete the post because the 
District offices were “pretty upset.”  Compl. ¶¶ 45–46.  Later that day, Puffer confirmed 
that Redmond wanted the post taken down and repeated “near verbatim” his earlier 
threatening remark.  Id. ¶ 47.  When McNeally refused, Redmond and Puffer spoke again 
the next day.  Redmond instructed Puffer to suspend McNeally until the post was deleted.  

Id.  ¶ 48.    When  Redmond  excluded  McNeally  from  District  property,  he  didn’t 
communicate with her—he emailed Puffer.  And he did so as a “follow up to [their] brief 
discussion” and with a letter articulating his decision.  Id. ¶ 49.  Puffer called McNeally 
“within minutes” of receiving Redmond’s letter and suspended her without pay.  Id. ¶ 50.  
Puffer did not allow McNeally to continue working at HomeTown’s other Shakopee 
location, even though it was “short staffed” and where McNeally “worked the majority of 
her time and worked full-time when the Shakopee High School location was closed.”  Id.  

HomeTown  terminated  McNeally  just  two  weeks  later.    Id.  ¶ 51.    Together,  these 
allegations  propel  McNeally’s  conspiracy  claim  across  the  line  from  conceivable  to 
plausible.                                                                
                           C                                         
Redmond has moved to dismiss Count Two of the Complaint, in which McNeally 

alleges tortious interference with an employment agreement.  Id. ¶¶ 73–78.  Redmond 
argues that the claim fails on official immunity grounds and because McNeally has not 
alleged facts plausibly showing essential elements of the claim.          
Start with official immunity.  Redmond contends that McNeally has not pleaded 
malice.  ECF No. 15 at 22.  Under Minnesota law, “official immunity protects from 

personal liability a public official charged by law with duties that call for the exercise of 
judgment or discretion unless the official is guilty of a wilful or malicious wrong.”4  Rico 
v. State, 

, 106–07 (Minn. 1991) (citation omitted).  Malice “means nothing 
more than the intentional doing of a wrongful act without legal justification or excuse, or, 
otherwise stated, the willful violation of a known right.”  Ulrich v. Pope Cnty., 

    Minnesota’s common law does not grant official immunity to officials “charged 
with the execution of ministerial, rather than discretionary, functions.”  Schroeder v. St. 
Louis Cnty., 

 (Minn. 2006) (citation omitted).  McNeally does not 
argue that any aspect of Redmond’s alleged conduct was ministerial.  ECF No. 27 at 33 
n.14.                                                                     
1054, 1062 (8th Cir. 2013) (quoting Rico, 

).  The malicious wrong 
exception to official immunity “anticipates liability only when an official intentionally 
commits an act that he or she then has reason to believe is prohibited.”  Rico, 

.  An official-immunity determination “contemplates less of a subjective inquiry into 
malice, which was traditionally favored at common law, and more of an objective inquiry 
into the legal reasonableness of an official’s actions.”  Hassan v. City of Minneapolis, 

 (8th Cir. 2007) (en banc) (quoting State by Beaulieu v. City of Mounds View, 

 (Minn. 1994)); accord Smith v. City of Minneapolis, 

 (8th Cir. 2014).  Official immunity is a distinct doctrine, but “federal decisions 
interpreting qualified immunity under section 1983 . . . are instructive” and “the legal 
reasonableness  of  the  official’s  actions  is  relevant  to  whether  the  public  employee 
committed a wilful or malicious wrong.”  Rico, 

; see also Passenheim 
v. Tolbert, No. 15-cv-422 (PJS/SER), 

, at *5 (D. Minn. Nov. 21, 2016) 

(official immunity analysis did not “differ in any material respect from qualified-immunity 
analysis” under the case’s circumstances).  “[W]hether an officer acted maliciously is 
usually a question of fact for the jury.”  Kelly v. City of Minneapolis, 

, 664 
n.5 (Minn. 1999).                                                         
Here, the Complaint includes allegations plausibly showing malice.  Many of the 

same allegations supporting a “clearly established right” for qualified immunity purposes 
establish the objective unreasonableness of Redmond’s actions.  In other words, allegations 
plausibly showing that Redmond violated a clearly established First Amendment right also 
show he “ha[d] reason to know that [his] challenged conduct [was] prohibited.”  Anderson 
v. Anoka Hennepin Indep. Sch. Dist. 11, 

 (Minn. 2004).  Drawing all 
inferences in McNeally’s favor, a reasonable juror could conclude from the facts alleged 
that Redmond knowingly violated her First Amendment rights by causing her suspension 

and termination.                                                          
Redmond’s remaining challenge is that McNeally has not plausibly alleged certain 
elements of her tortious interference claim.  The parties agree that to state a claim for 
tortious interference with contract under Minnesota law, McNeally must prove: “(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.”  Kjesbo 
v. Ricks, 

 (Minn. 1994) (citation omitted).  Relevant here, “a tortious 
interference claim will lie for an at-will employment agreement.”  Nordling v. N. States 
Power Co., 

 (Minn. 1991).  “Minnesota courts protect an at-will 
employee from a tortiously[-]procured discharge even though that discharge does not 

breach any contract.”  Conrad v. Xcel Energy, Inc., No. 12-cv-2819 (PJS/FLN), 

, at *4 (D. Minn. Apr. 5, 2013).                                   
Redmond’s arguments implicate the claim’s third and fourth elements.  He first 
contends he is not plausibly alleged to have intentionally procured a breach.  ECF No. 15 
at 23; ECF No. 29 at 18–19.  This element, Redmond points out, requires McNeally to 

“prove that [Redmond] caused [HomeTown] to breach its contract” with her.  Qwest 
Commc’ns Co. v. Free Conferencing Corp., 

 (8th Cir. 2018); see 
Jensen v. Lundorff, 

 (Minn. 1960) (requiring defendants’ conduct to 
have  proximately  caused  the  breach).    Redmond’s  causation  argument  mirrors  his 
causation argument on McNeally’s § 1983 claim.  And the same allegations allowing a 
plausible inference that Redmond caused a violation of McNeally’s clearly established 
rights create a plausible inference that Redmond’s actions were a proximate cause of her 

suspension and termination.                                               
Redmond next argues that McNeally has not plausibly alleged his actions were 
without justification.  ECF No. 15 at 24–25; ECF No. 29 at 19.  “Liability for wrongful 
interference may be avoided by showing that the defendant was justified by a lawful object 
which he had a right to assert.”  Spice Corp. v. Foresight Mktg. Partners, Inc., No. 

07-cv-4767 (JNE/JJG), 

, at *18 (D. Minn. Dec. 22, 2011) (quoting 
Bennett  v.  Storz  Broad.  Co.,  

  (Minn.  1965)).    “Generally,  a 
defendant’s actions are justified if it pursues its legal rights via legal means.”  Noble Sys. 
Corp. v. Alorica Cent., LLC, 

 (8th Cir. 2008).  “Ordinarily, whether 
interference is justified is an issue of fact, and the test is what is reasonable conduct under 

the circumstances.”  Kjesbo, 

; Kallok v. Medtronic, Inc., 

 (Minn. 1998) (same).  Although described as an element of the tort, “[t]he burden 
of proving that interference with a contract was justified is on the defendant.”  Sysdyne 
Corp. v. Rousslang, 

 (Minn. 2015) (citation omitted).  
Redmond  offers  justifications  for  his  decision  to  ban  McNeally  from  District 

property.  He points out, for instance, that “Minnesota law permit[s] school officials, like 
Redmond, to limit access to school grounds.  See Minn. Stat. § 123B.02, subds, 1, 5a; 

, subd. 4(d).”  ECF No. 29 at 19.  He also cites District policy providing that 
“[a]n individual . . . may be denied permission to visit a school or school property . . . if 
the visit is not in the best interest of students, employees[,] or the school district.”  Id.; see 
ECF  No.  30-1.    There  are  problems  with  this  argument.    Redmond’s  justifications, 
whatever they might be, are not relevant at the Rule 12(b)(6) stage.  If that weren’t so, 

Redmond identifies no justification for his alleged influence on the actions comprising 
McNeally’s tortious interference claim: her suspension and termination.  See Compl. 
¶¶ 73–78.    McNeally  has  plausibly  alleged  that  Redmond’s  retaliation  caused  those 
employment decisions, and Redmond offers no “lawful object” or “legal right” to justify 
his alleged procurement of them.                                          

Based on the foregoing, and all of the files, records, and proceedings herein, IT IS 
ORDERED THAT:                                                             
1.   Defendant  Michael  Redmond’s  Motion  to  Dismiss  [ECF  No.  13]  is 
DENIED.                                                                   
2.   Defendants HomeTown Bank and Lindsey Puffer’s Motion to Dismiss [ECF 

No. 20] is DENIED.                                                        

Dated:  June 21, 2022              s/ Eric C. Tostrud                     
                              Eric C. Tostrud                        
                              United States District Court