McNeally v. HomeTown Bank

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


Tara C. McNeally,                        Civ. No. 21-2614 (JWB/DTS)      

          Plaintiff,                                                     

v.                                                                       

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

          Defendants.                                                    


J. Ashwin Madia, Esq., and Zane A. Umsted, Esq., Madia Law LLC; Steven M. Cerny, 
Esq., Santi Cerny, PLLC, counsel for Plaintiff.                           

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

Adam Frudden, Esq., and Christian R. Shafer, Esq., Ratwik, Roszak & Maloney, P.A., 
counsel for Shakopee Public Schools, Shakopee Public Schools Board, and Kristi 
Peterson.                                                                 

Sara Gullickson McGrane, Esq., and Zachary Aaron Alter, Esq., Felhaber Larson, 
counsel for Michael Redmond.                                              


                        INTRODUCTION                                     

    Tara McNeally, a bank employee, had been public and vocal in opposing the 
enforced use of masks in public schools during the COVID-19 pandemic. But she had a 
job working for the bank inside a public school that required masking to protect students 
and staff. McNeally’s activism and anti-masking confrontations contributed to her 
eventual employment termination.                                          
    McNeally sued several parties, including the Superintendent of Shakopee Public 
Schools (Michael Redmond), McNeally’s direct employer (HomeTown Bank (“the 
Bank”)), her immediate supervisor at HomeTown Bank (Lindsey Puffer), the Chair of the 

School Board (Kristi Peterson), the Shakopee Public Schools Board, and the Shakopee 
Public Schools (“the District”). Her lawsuit alleges First Amendment retaliation under 

. She also accuses Redmond of tortiously interfering with her 
employment agreement.                                                     
    The Defendants are categorized into three groups: (1) Superintendent Redmond; 

(2) HomeTown Bank and Lindsey Puffer (“the Bank Defendants”); and (3) Kristi 
Peterson, the School Board, and Shakopee Public Schools (“the School Defendants”). 
Each group separately moved for summary judgment. McNeally also filed a partial 
motion for summary judgment against Redmond, HomeTown Bank, and Puffer, asserting 
violations of her rights.                                                 

    McNeally’s claims fail on all counts. It was the Bank—her actual employer—that 
suspended and terminated her and not Superintendent Redmond or the School 
Defendants. A § 1983 claim as asserted here may be maintained against state actors, like 
Redmond and the School Defendants, if they retaliated against McNeally because of the 
content of her speech. The evidence does not support a retaliation claim. As to the Bank 

Defendants, a § 1983 claim can be asserted against a private entity, such as a bank, if the 
evidence shows that the state actors and the Bank colluded to act adversely against 
McNeally because of her speech content. The record does not support collusion. For 
these reasons, and as developed below, McNeally’s partial motion for summary judgment 
is denied and Defendants’ motions for summary judgment are granted.       
                    FACTUAL BACKGROUND                                   

    Starting in 2017, the Shakopee Public Schools Board selected and partnered with 
HomeTown Bank to serve as a business role model for its students. The Bank maintained 
eleven branches across Minnesota at that time. The Bank agreed to provide Shakopee 
Public Schools (“the District”) $300,000 in donations and in-kind contributions, 
including externships and internships, guest speakers, and student development programs. 

In turn, the District agreed to name its Academy of Business & Entrepreneurship after the 
Bank, and designated space on its Shakopee High School property for the Bank to 
operate the “School Branch.”                                              
    McNeally worked at the Shakopee Branch of the Bank and was later hired as the 
only bank employee at the School Branch. In 2021, during the COVID-19 pandemic, she 

worked about six hours per week at the School Branch when it was open. The rest of her 
work week was spent at the Bank’s Shakopee Branch. The Bank, and not the District, 
paid her salary and supervised her work. The District, including Superintendent 
Redmond, had no contractual authority to hire or discipline Bank employees. 
    At the School Branch, McNeally had several job responsibilities, including hiring 

and managing student interns earning academic credit; educating students on financial 
literacy; guest speaking in classes; and serving as a bank teller. An overarching 
requirement of her job was to positively represent HomeTown Bank, to be a goodwill 
ambassador, in the Shakopee Public Schools through her various engagements in the 
District.                                                                 
    It was three years into this partnership when the COVID-19 pandemic hit, 
prompting Minnesota government officials to close schools and businesses, limit 
gatherings, and enact mask mandates as safety measures. COVID-19 policies varied 

throughout 2020 and 2021, as science, research, and debate evolved, with schools 
alternating between remote learning and in-person learning with masking requirements. 
On June 30, 2021, the mask mandate was lifted in Minnesota. But within the next month, 
the Centers for Disease Control and Prevention and the American Academy of Pediatrics 
recommended reinstating masking with the emergence of the COVID Delta variant and 

given the vaccination ineligibility of children under twelve. Local school districts were 
granted the discretion to set masking policies for themselves.            
    That summer, the District, including the School Board, considered whether to 
require masking for students and employees for fall 2021. The School Board, after 
considering recommendations from an advisory group and receiving COVID-19 health 

data, unanimously chose to require masking for elementary students in August 2021. But 
public input was divided. Some parents wanted a mask requirement for all students while 
others wanted parents to have the right to make the masking decision for their children.  
    Besides the masking policy, a School Board proposal for an operating levy to 
support necessary District funding was slated for a November 2021 vote. Some parents, 

including McNeally, leveraged the operating levy vote to obtain greater support for their 
positions opposing masking.                                               
    Following the School Board vote and enactment of the masking policy in the fall 
of 2021, McNeally confronted School Board Chair Kristi Peterson about the masking 
policy at a September 1, 2021 parent-teacher event at West Middle School, a school 
within the District. Peterson described McNeally’s speech as yelling, which McNeally 
denies. (Doc. Nos. 62, 103, Decl. of Zachary A. Alter (“Alter Decl.”), Ex. K, McNeally 

Depo. at 86). Peterson said it “wasn’t a civil discourse conversation.” (Id., Ex. L, 
Peterson Depo. at 47–48, 60.) McNeally says she told Peterson: “[E]ven though you 
don’t know who they are, you feel like you’re able to just medically treat my children. 
And I don’t appreciate it. So, [McNeally said], I hope that you change your mind on the 
masking policy. And if so, I will be glad to vote yes to the levy.” (McNeally Depo. at 86.) 

Peterson listened and then told McNeally that she would research the matter. (Peterson 
Depo. at 47–48, 60.)                                                      
    Six days later, McNeally engaged in another confrontation over masking. 
McNeally was attending a meet-and-greet event in the District at Sweeney Elementary 
School. She was present in an official capacity, promoting the Bank’s interest at the event 

by handing out brochures. She was also present as a member of the Sweeney Elementary 
Parent Teacher Organization (“PTO”). Wearing a mask was mandatory at the school, 
though McNeally was not wearing one. When she was confronted disapprovingly by a 
member of the PTO for not wearing a mask, a pitched exchange ensued. McNeally 
ultimately stated that it was her body and her choice and she stormed out of the event. 

The school principal was present during the exchange, and he reported the disturbance to 
Superintendent Redmond. Of McNeally’s conduct and involvement, the principal in 
expressing his concern over McNeally’s behavior stated that he “came close to calling the 
police to have [McNeally] removed, but eventually she left on her own accord.” (Doc. 
No. 62, Alter Decl., Ex. J, Redmond Depo. at 159.)                        
    The masking policy was discussed again at the next two School Board meetings. 
At the September 13, 2021 meeting, McNeally held a sign that said “MASKS = NO 

LEVY.” (Doc. No. 76, Decl. of Tara C. Mohr (“McNeally Decl.”) ¶ 7.) At the 
September 27, 2021 meeting, parents spoke again on the masking issue. At this meeting, 
the School Board adopted a new resolution by a 6-1 vote, requiring masking for 
elementary and high school students.                                      
    Following the September 27 meeting, McNeally posted a comment in a public 

discussion on a Minnesota legislator’s Facebook page (“the Facebook Post” or “the 
Post”):                                                                   
    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 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???                                                         

(Doc. No. 62, Alter Decl., Ex. D.) McNeally’s Facebook Post came to the attention of 
Superintendent Redmond. Redmond had a pre-arranged meeting with Bank branch 
manager Lindsey Puffer on the next day, and he did raise concerns about McNeally’s 
recent confrontations within the District over the masking policy. (Redmond Depo. at 
157–64; Doc. No. 62, Alter Decl., Ex. I, Puffer Depo. at 187–88.) He and Puffer 
discussed the confrontation between McNeally and Peterson at the September 1 parent-
teacher event. Redmond also informed Puffer about the September 7 incident at Sweeney 
Elementary.                                                               
    They also discussed McNeally’s Facebook Post from the previous night criticizing 
School Board Chair Peterson. Redmond noted the negative tone of the Post. Redmond 
asked as a business partner if Puffer could talk to McNeally about removing the Post, 

emphasizing, however, that she should handle the situation as she saw fit. (See Puffer 
Depo. at 188–89.) Puffer later did make a request to McNeally that she consider deleting 
the Post given the District’s concerns. McNeally refused. And then she went a step 
further in escalating the situation.                                      
    Rather than delete the Post, McNeally instead talked to a news reporter from 

Alpha News. She told him that School Board Chair Peterson had contacted the Bank to 
try to force the removal of her Facebook Post. Peterson had not contacted the Bank and 
the statement was untrue. Peterson then received an inquiry from Alpha News about 
McNeally’s accusation. Peterson, unaware of the Facebook post until then, denied having 
contacted the Bank.                                                       

    Redmond did inform Puffer of the misinformation McNeally had provided to 
Alpha News. He also expressed concern over McNeally’s general behavior given her role 
that directly interacted with students. During this conversation, Puffer told Redmond that 
the Bank would be investigating McNeally’s conduct and that she would be placed on a 
leave of absence pending the investigation. (Redmond Depo. at 172–73.) Puffer also 

asked Redmond to put his concerns in writing.                             
    After his discussion with Puffer, Redmond “hastily” wrote a letter following up on 
their conversation. (Id. at 172.) The letter expressed Redmond’s concerns and barred 
McNeally from school property pending the Bank’s investigation of her conduct. 
Redmond explained that he did this because of his concern “due to the erratic behavior 
incidents and this most recent Alpha News,” and because he “really didn’t think it was a 
good idea for her to be in direct contact with students within our schools.” (Id.) 

    The September 29 letter from Redmond reads:                          
    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. 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.            

(Doc. No. 62, Alter Decl., Ex. D.) The School Board did not know about or approve this 
letter. Redmond informed the School Board of his letter after it was sent. The School 
Board did not discuss or take any action relating to it.                  
    Puffer discussed the McNeally situation with the Bank President and a human 
resources representative. The Bank suspended McNeally on the same date as the 
Redmond letter and began its investigation into her conduct. The District did not conduct 
a separate investigation. Neither Redmond, nor anyone from the District, took any role in 
the Bank’s investigation.                                                 

    At the time of the suspension, Puffer told McNeally that Peterson was not the 
person who had contacted the Bank about her Post. (McNeally Depo. at 135.) Still, 
McNeally continued to repeat the Peterson misinformation, including to another media 
outlet. (Doc. No. 68, Aff. of Brittany King-Asamoa ¶ 5, Ex. D at deposition Ex. 13 
(October 7, 2021 article).)                                               

    During the two weeks after McNeally’s suspension, the Bank received hundreds of 
harassing calls threatening Bank staff and their families related to the McNeally 
suspension and the masking issue. (Puffer Depo. at 248–49.) Because of the threats, the 
Bank had to close the School Branch on October 6 and 8, and disconnected the phones at 
the Shakopee Branch on October 9, 2021. (King-Asamoa Aff. ¶ 18, Ex. Q; Puffer Depo. 

at 249; Doc. No. 83, Decl. of Adam J. Frudden ¶ 23, Ex. 25 at 7.)         
    Other concerns were more directly related to McNeally during the investigation. 
Bank employees said that McNeally threatened to “take everyone down” with her. (King-
Asamoa Aff. ¶ 15, Ex. N at 6.) Given the nature of the environment, employees asked 
that McNeally not be allowed to return to work. (Id.) Apart from challenging the 

District’s masking policy, the Bank learned in its investigation that McNeally had also 
been making negative comments to co-employees at the Bank about their mask usage. 
(Puffer Depo. at 248.)                                                    
    The investigation concluded with multiple findings: that McNeally had violated 
the Bank’s standards of conduct; she had violated the Bank’s internal social media 
guidelines; she could not perform certain job duties because of the ban from school 

property; and she had made improper use of work time. On October 12, 2021, based on 
its investigation and findings, the Bank terminated McNeally from all Bank branch 
facilities.                                                               
                          DISCUSSION                                     
I.   Standard of Review                                                   

    Summary judgment is proper when there are no genuine issues of material fact and 
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. A genuine 
dispute of material fact exists when a reasonable jury could return a verdict for the 
nonmoving party based on the evidence. Anderson v. Liberty Lobby, Inc., 

 (1986). When deciding summary judgment, the record is considered in the light most 

favorable to the nonmoving party, drawing all reasonable inferences in that party’s favor. 
Windstream Corp. v. Da Gragnano, 

, 802–03 (8th Cir. 2014).    
II.  Analysis                                                             
    A.   First Amendment - Retaliation Claim                             
    McNeally alleges unlawful retaliation for protected speech in violation of the First 

Amendment against all Defendants. To establish a First Amendment retaliation claim, 
McNeally must prove that (1) she engaged in protected activity, (2) a government official 
took an adverse action against her that would chill a person of ordinary firmness from 
continuing in the activity, and (3) the protected speech was not only a motivating factor 
in the government official’s decision to take the adverse employment action, but the 
“retaliatory animus” caused plaintiff’s injury. Nieves v. Bartlett, 

, 1722 
(2019); Graham v. Barnette, 

 (8th Cir. 2021).             

         1.   HomeTown Bank and Lindsey Puffer (“the Bank Defendants”)   
    The Bank investigated McNeally after learning of various incidents involving 
McNeally in September 2021, and terminated her for violating the Bank’s standards of 
conduct and social media policies, not performing her job duties because of the ban from 
school property, and for improper use of work time. McNeally alleges that Puffer (and 

therefore HomeTown Bank) conspired with Redmond to have her banned from school 
property, suspended from work, and ultimately terminated from her employment for 
exercising her First Amendment rights, and that the Bank Defendants are liable for 
conspiring under 

.                                        
    Generally, only state actors can be liable under § 1983. Adickes v. S.H. Kress & 

Co., 

 (1970). A private person can be liable under § 1983 if that person 
willfully participated in joint activity with a state actor to deprive the plaintiff of a 
constitutionally protected right. Id. at 152. To proceed under the joint action theory, a 
plaintiff must show that the public and private actors shared a common, unconstitutional 
goal. Stagman v. Ryan, 

 (7th Cir. 1999).                

    Here, there is no evidence of an agreement or shared unconstitutional goal 
between the Bank Defendants and Redmond, the only arguable state actor, to suspend 
and terminate McNeally in retaliation for the comments made by her on her “MASKS = 
NO LEVY” sign or her Facebook Post (the speech underlying McNeally’s claims). 
McNeally’s conclusion that Redmond and Puffer hatched a plan to retaliate against her 
during their lunch meeting, and that their follow-up communication and Redmond’s letter 
temporarily banning McNeally from school property was simply a step in their plan, is 

not supported by the record. See Tirado v. City of Minneapolis, 

, 845 
(D. Minn. 2021) (“Allegations that the parties had an ‘opportunity to communicate’ or 
‘acted in a manner that was consistent with the existence of a conspiracy’ are 
insufficient[.]”).                                                        
    After Puffer was informed that McNeally had made a false report to the media, 

Puffer told Redmond that the Bank would be placing McNeally on a leave of absence 
while the Bank investigated her conduct. This message was relayed to Redmond before 
he sent a letter temporarily and partially banning McNeally from school property. The 
ban set forth in Redmond’s letter was limited to McNeally’s capacity as an employee of 
the Bank within the District, which in effect added nothing meaningful to the Bank’s own 

suspension of her from all Bank locations, which included the School Branch, pending 
the investigation.1                                                       

1    This matter presented before a different judge on Defendants’ motion to dismiss. 
In the order denying Defendants’ motion to dismiss, the district court—based on the 
pleadings—found it plausible for a person to understand the letter to forbid attendance at 
Board meetings or to forbid McNeally from coming onto school property to vote without 
prior permission. (See Doc. No. 37 at 13–14.) The plain language of the letter, however, 
says: “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.” 
(Doc. No. 62, Alter Decl., Ex. D (emphasis added).) The paragraph describing the 
restrictions placed on McNeally must be read within the context of that statement. Even 
    Absent is any evidence that anyone from the District asked the Bank Defendants 
to suspend and later terminate McNeally, or to discipline her at all. And even if Puffer 
and Redmond shared information about McNeally and discussed removal of the 
Facebook Post, this does not show that Puffer and Redmond together devised a plan to 
suspend or terminate McNeally from her employment. See Miller v. Compton, 

, 1098 (8th Cir. 1997) (stating that to survive a motion for summary judgment, 
evidence must be produced from which reasonable jurors could conclude that there was a 
“meeting of the minds”). Instead, the record reveals that the suspension and termination 
were done by McNeally’s employer, the Bank. (See Doc. No. 58, Aff. of Robert 
Southworth ¶ 3.) There is no proper evidence of a meeting of minds to take adverse 

action against McNeally.                                                  
    It is worth underscoring that McNeally was working on school grounds then, with 
direct contact with and supervisory oversight for students. Redmond, as the 
Superintendent, could be expected to raise concerns when someone working on school 
grounds, interacting and overseeing students, had been acting erratically and might act to 

impair the health and safety of students. “Because schools act in loco parentis for 
students, . . . school officials can reasonably predict that parents and students will fear the 
influence of controversial conduct on the learning environment[.]” Riley’s Am. Heritage 


so, the matter is now being considered after discovery and on summary judgment. The 
record is even clearer that the ban was limited to McNeally’s capacity as a Bank 
employee. The evidence reflects the District clarified before the next School Board 
meeting that a parent in McNeally’s situation could attend School Board meetings. And 
McNeally indeed did attend and vote in the November 2021 election on school grounds. 
McNeally has presented no evidence the ban was to be interpreted more broadly. 
Farms v. Elsasser, 

 (9th Cir. 2022) (citations omitted). Redmond’s 
concern about a Bank employee’s impact on students’ health and safety during the 
COVID-19 pandemic aligned with his responsibilities as a school system superintendent. 
Cf. Lloyd v. Sch. Bd. of Palm Beach Cnty., 

, 1183 (S.D. Fla. 2021) 
(“[S]chools have a legitimate interest in promoting the health and safety of its students, 

which extends to efforts to reduce the spread of COVID-19 among students and school 
employees.”) (quotations omitted). Redmond’s following up on his concerns was 
therefore reasonable and in line with his own job duties, not evidence of collusion with 
the Bank.                                                                 
    Nor is there any evidence that Redmond threatened the Bank with any  

consequence if McNeally were not suspended or terminated. And if Redmond’s letter 
could be read to imply that McNeally should be disciplined in some way, a mere 
suggestion by Redmond is not evidence of a meeting of the minds, as required for § 1983 
liability. See Tirado, 521 F. Supp. 3d at 845 (“[M]ere suggestions from one party to 
another are insufficient to establish a meeting of the minds.”). Instead, the evidence 

reflects that when Puffer contacted Redmond for clarification on the letter, Redmond 
stated that he could be convinced to allow McNeally back on school property in her prior 
capacity, depending on the outcome of the investigation. (Redmond Depo. at 224; Puffer 
Depo. at 252.)                                                            
    The evidence also reflects that McNeally’s termination was solely the Bank’s 

decision, based on concerns that went beyond McNeally’s work in the District, following 
the Bank’s independent investigation. The termination mirrored McNeally’s status as an 
at-will employee at the Bank. See Mudlitz v. Mut. Serv. Inc., 

, 393–94 (8th 
Cir. 1996) (stating that under the general rule of employment contract law in Minnesota, 
a person serving as an at-will employee can be terminated at any time with or without 
cause).                                                                   
    Without facts showing collusion between the Bank Defendants and Redmond to 

retaliate against her for her speech, McNeally has not shown that the Bank Defendants’ 
actions were taken under color of state law. Therefore, her claim fails, and the Bank 
Defendants’ motion for summary judgment is granted.                       
         2.   Michael Redmond                                            
    Redmond is a government official when acting in his superintendent capacity and 

could be held liable under § 1983 if McNeally engaged in protected speech and Redmond 
took an adverse action against her that would chill a person of ordinary firmness from 
making similar speech.                                                    
           a.  McNeally’s Speech is Protected Speech                     
    Although McNeally spoke several times and at different forums about the 

District’s masking policy, the speech that is the basis for her First Amendment retaliation 
claim is her School Board meeting sign (“MASKS = NO LEVY”) and her Facebook 
Post. It is undisputed that McNeally was speaking as a citizen when holding her sign and 
when making the Post. And at least arguably, she was speaking on a matter of public 
concern since masking of school children in response to COVID-19 was of public 

concern in the fall of 2021, as was the School Board Chair’s conduct during a School 
Board meeting concerning masking. See Davenport v. Univ. of Ark. Bd. of Trustees, 

 (8th Cir. 2009) (stating that speech is entitled to First Amendment 
protection if the person spoke as a citizen, and not as an employee, on a matter of public 
concern); see also Belk v. City of Eldon, 

 (8th Cir. 2000) (stating that 
matters of political, social, and other concern to the community, as well as speech 
criticizing a public employee in their capacity as a public official address matters of 

public concern). Therefore, McNeally did engage in protected speech.      
           b.  No Adverse Action                                         
    McNeally must also show that Redmond took an adverse action against her that 
would chill an ordinary person from continuing in speech like hers. See Nieves, 139 S. Ct. 
at 1722. McNeally’s claims against Redmond are based on three alleged adverse actions. 

     First, McNeally asserts that when she approached Redmond on September 23, 
2021, to ask how a parent could speak at a School Board meeting, Redmond responded to 
her with a warning to not “get mixed up with that other group of people.” (McNeally 
Depo. at 92.) She claims he also made a veiled threat, stating that she “had done a lot in 
the community” and “worked hard to get to where [she] was,” and that “it would be a 

shame if that were to all go away.” (Id.) Redmond disputes those statements, and instead 
asserts that he responded explaining the process for public comment and for signing up to 
speak. (Redmond Depo. at 147.)                                            
    These statements made by Redmond to McNeally, even if they did occur, are not, 
in and of themselves, adverse actions. The statements may explain Redmond’s thoughts 

about McNeally at that time. But they are not alone adverse actions on which a First 
Amendment retaliation claim may lie. See Whiting v. City of Athens, No. 3:23-cv-220, 

, at *6 (E.D. Tenn. Oct. 18, 2023) (finding the conversation between 
two people was not an adverse action that could support a First Amendment retaliation 
claim because the words did not cause plaintiff to “suffer a threat to his economic 
livelihood”); Hayes v. Dahkle, No. 9:16-CV-1368 (TJM/CFH), 

, at *8 
(N.D.N.Y. Oct. 30, 2017) (finding vague threats that lacked the specificity and 

seriousness to deter the plaintiff from exercising his First Amendment rights were not 
adverse actions); see also Suarez Corp. Indus. v. McGraw, 

, 686 (4th Cir. 
2000) (stating courts have declined to find “criticism, false accusations, or verbal 
reprimands” as adverse actions to support a First Amendment retaliation claim).  
    Second, McNeally contends that Redmond conspired with Puffer to suspend and 

terminate her and that the suspension and termination constitute adverse actions for 
which Redmond can be held liable. For the reasons stated above, there is no evidence that 
Redmond (or anyone from the school) asked or pressured the Bank to take any action—
whether to suspend, terminate, or even to discipline McNeally.            
    That leaves the third alleged adverse action—Redmond’s ban of McNeally from 

school property. McNeally asserts that Redmond’s ban caused her to be suspended and 
later terminated, and, in McNeally’s view, banned her from attending School Board 
meetings and from voting in the November election. Although the evidence reflects that 
Redmond acted in his capacity as school superintendent when he instituted the ban, the 
evidence does not show the limited ban imposed was an adverse action.     

    Changes in conditions that cause “no materially significant disadvantage” are 
“insufficient to establish the adverse conduct required.” Harlston v. McDonnell Douglas 
Corp., 

 (8th Cir. 1994); see also Wagner v. Campbell, 

 
(8th Cir. 2015) (“[N]ot everything that makes an employee unhappy is an actionable 
adverse action.”) (quotations omitted). The limited restriction imposed by Redmond, 
restricting McNeally’s ability to enter school grounds in her capacity as a Bank 
employee, in effect was to occur regardless because the Bank on the same day suspended 

her employment at all branch locations pending the investigation. And, as explained 
above, the limited restriction did not preclude McNeally from speaking at School Board 
meetings or voting.                                                       
    The ban was only temporary pending the outcome of the investigation. Unlike the 
Bank’s suspension, the ban did not (and could not) preclude her from working at any of 

the other Bank branch locations, including the Bank’s Shakopee Branch where she had 
been employed for some time. Therefore, Redmond’s ban did not materially change 
McNeally’s working conditions. Because the change in conditions caused by the ban did 
not disadvantage McNeally in a material way, the ban is not an adverse action. 
McNeally’s First Amendment claim asserted against Redmond fails.          

           c.  The Protected Speech did not Motivate Redmond’s Decision  

    Even if McNeally could show that the ban from school property was an adverse 
action, McNeally must also prove that her protected speech was a motivating factor and 
actually caused Redmond’s decision to temporarily ban her. “It is not enough to show 
that an official acted with a retaliatory motive and that the plaintiff was injured—the 
motive must cause the injury. Specifically, it must be a ‘but-for’ cause, meaning that the 
adverse action against the plaintiff would not have been taken absent the retaliatory 
motive.” Nieves, 139 S. Ct. at 1722 (emphasis in original); see also Hartman v. Moore, 

 (2006) (stating that while it “may be dishonorable to act with an 
unconstitutional motive,” an official’s “action colored by some degree of bad motive 
does not amount to a constitutional tort if that action would have been taken anyway”). 
    McNeally contends Redmond’s motivation for the ban was her Facebook Post, and 

that Redmond was trying to stop her from speaking on public forums or at School Board 
meetings and to eliminate her employment at the Bank’s school location because of the 
content of her speech. McNeally points to Redmond’s letter, which recites the Post and 
does not mention safety concerns, and her termination meeting with the Bank, where the 
Post was discussed.2                                                      

    McNeally’s assertion, however, is not supported by the evidence. Even if there 
were some level of animus by Redmond reflected in his letter, the record reflects that the 
impetus for the letter was Redmond’s concern that McNeally was working directly with 
students on school property after exhibiting what he felt was erratic behavior. This 
included one instance that nearly required police intervention, and another that concerned 

a false report to a media outlet. McNeally ignores her report to Alpha News, which is 
significant in that it occurred after McNeally’s Facebook Post. She also does not address 
what Redmond believed at the time, including that her Alpha News report about Peterson 
was false. Redmond testified that if it were only the Facebook Post, then he would not 


2    The Bank’s termination letter listed other reasons for McNeally’s termination in 
addition to not performing her job duties because of the ban and for violation of social 
media policy. Moreover, the reasons given for her termination are evidence of the Bank’s 
motivations, not Redmond’s motivations, since he was not involved with the Bank’s 
termination decision.                                                     
have talked about an investigation. (Redmond Depo. at 169, 170–71, 219); see Nieves, 
139 S. Ct. at 1722 (“[An] action colored by some degree of bad motive does not amount 
to a constitutional tort if that action would have been taken anyway.”); see also Ackerman 
v. Iowa, 

 (8th Cir. 2021) (stating a plaintiff cannot establish but-for 
causation when an “independent, non-retaliatory” event takes place between protected 

activity and subsequent adverse action).                                  
    Although McNeally tells a different version of what happened at the various 
events, her version was not relayed to Redmond prior to his decision and therefore does 
not create genuine issues of material fact for trial. For the First Amendment retaliation 
analysis, what Redmond reasonably believed is what matters. See Waters v. Churchill, 

 (1994) (stating that “employer decisionmaking will not be unduly 
burdened by having courts look to the facts as the employer reasonably found them to 
be”) (emphasis in original).                                              
    The evidence shows the ban was limited, temporary, implemented for an 
investigation into McNeally’s escalating behavior, and would have been instituted 

regardless of the content of McNeally’s Facebook Post. McNeally has not presented 
evidence that creates a material fact dispute. Therefore, McNeally fails to meet the 
causation requirement for a First Amendment retaliation claim against Redmond.  
           d. The Retaliation Claim against Redmond Fails under Pickering 
    Because Redmond is a government actor, McNeally’s First Amendment claim 

might also be addressed under the Pickering framework. Following Pickering v. Board of 
Education of Township High School District 205, Will County., 

 (1968), 
courts have applied a more deferential standard to government entities when considering 
retaliation claims based on speech by employees. See, e.g., Smith v. Cleburne Cnty. 
Hosp., 

 (8th Cir. 1989) (applying Pickering to an independent 
contractor relationship). When determining whether to apply Pickering, courts consider 
whether the parties have a relationship analogous to that between an employer and 

employee, even if there is not a direct salaried employment relationship. Id.; see also 
Heritage Constructors, Inc. v. City of Greenwood, 

 (8th Cir. 2008) 
(stating Pickering applies if the plaintiff was a regular provider of services to the 
government defendant); Kinney v. Weaver, 

, 360–61 (5th Cir. 2004) 
(applying Pickering to instructors). If the parties have such a relationship, courts balance 

the government’s interests in efficient performance of public services against a person’s 
free speech rights. See Clairmont v. Sound Mental Health, 

 (9th Cir. 
2011).                                                                    
    Although McNeally was employed by HomeTown Bank, she worked on school 
property and provided services for the school, including managing student interns, 

speaking in classes, and teaching financial literacy. The educational services McNeally 
provided to the District implicate the type of heightened government interests that justify 
applying the Pickering framework to a retaliation claim. See Riley’s Am. Heritage Farms, 

; Kinney, 367 F.3d at 360–61.                              
    Under the Pickering framework, McNeally’s interests as a citizen commenting on 

matters of public concern are weighed against the Superintendent’s interest in promoting 
efficient public services in the school district. See Nord v. Walsch Cty., 

 
(8th Cir. 2014). Factors considered include the degree of public concern, whether the 
speech impeded the ability to perform jobs, the importance of coworker relationships, the 
need for workplace harmony, the time, place, and manner of the speech, and context 
around the dispute. Raposa v. Meade Sch. Dist. 46-1, 

, 1352 (8th Cir. 
1986).                                                                    

    As for schools in particular, a certain harmony is needed to educate students, and 
“[u]ndercurrents of hostility and ill will in the classroom can undermine the educational 
process.” Id. That said, actual disruption need not take place before a school is allowed to 
take action. Connick v. Myers, 

 (1983).                  
    Weighing the above factors, Redmond’s interests prevail. Redmond had cause to 

be concerned about McNeally’s behavior being disruptive considering multiple 
disruptions within the school or at school functions over masking; McNeally working in a 
supervisory, mentor, and teacher role at the school; and because of McNeally’s 
confrontations over masking that had escalated during a one-month span. Redmond 
testified that he “was worried about someone working directly with students who . . . had 

been reported to have exhibited erratic behavior now on multiple times.” (Redmond 
Depo. at 162.) Based on the evidence presented, it was reasonable for Redmond to be 
concerned that McNeally’s effect on the students and staff he was charged as 
superintendent to protect might be unsupportive of the masking policy.    
    When weighed against McNeally’s free speech interests, Redmond had good 

reason to issue a ban to protect against disruptions on school premises by McNeally—
“undercurrents of hostility and ill will” that might undermine the educational process—
during the Bank’s investigation. Cf. Melzer v. Bd. of Educ. of the City Sch. Dist. of the 
City of New York, 

, 199 (2d Cir. 2003) (“Any disruption created by parents 
can be fairly characterized as internal disruption to the operation of the school, a factor 
which may be accounted for in the balancing test and which may outweigh a public 
employee’s rights.”). Redmond’s ban promoted efficient public services and was limited, 

measured, and occurred within the context of the Bank suspending McNeally from all 
branch locations during its investigation. McNeally’s free speech interests were not 
curtailed during that time. Considering all the factors, Redmond’s interests prevail. 
    For all the above reasons, McNeally’s First Amendment retaliation claim against 
Redmond fails both under a standard First Amendment analysis and under Pickering.  

           e.  Qualified immunity                                        

    Qualified immunity is an immunity from suit. Mitchell v. Forsyth, 

 (1985). Its purpose is to allow government officials the ability “to make reasonable 
but mistaken judgments about open legal questions.” Lyons v. Vaught, 

 (8th Cir. 2017). To withstand qualified immunity at summary judgment, (1) a 
plaintiff must assert a violation of a constitutional or statutory right; (2) that right must 
have been clearly established at the time of the violation; and (3) given the facts most 
favorable to the plaintiff, there must be no genuine dispute over whether a reasonable 
official would have known that the alleged action violated that right. See Mettler v. 
Whitledge, 

, 1202 (8th Cir. 1999). Courts must review the facts known to 

the public official to determine whether they “reasonably should have known that their 
actions, in light of those facts, would violate the law.” Domina v. Van Pelt, 

 (8th Cir. 2000).                                               
    Here, there is no clearly established law that a superintendent cannot temporarily 
ban a person employed on school grounds from school property in their employee 
capacity with a private employer during an investigation into their allegedly improper 
conduct. See, e.g., JTH v. Mo. Dep’t of Soc. Servs., 

 (8th Cir. 2022) (stating 

the law is not clearly established enough to cover the alleged retaliatory investigation); 
see also Sexton v. Martin, 

, 914 (8th Cir. 2000) (stating that where 
Pickering’s fact-intensive balancing test is at issue, an asserted First Amendment right 
“can rarely be considered clearly established” under a qualified immunity standard). 
Instead, “school officials have broad discretion in restricting visitors on school property 

to protect the safety and welfare of the school children.” Embry v. Lewis, 

, 
889 (8th Cir. 2000); cf. Gunter v. N. Wasco Cty. Sch. Dist. Bd. of Educ., 577 F. Supp. 3d 
at 1156 (“[A] parent may justifiably be expected to act in the child’s best interest. But it 
is that very motivation—laudable in itself—that might lead the parent to misjudge what is 
best for the health of the community as a whole. That is precisely why we, as a society, 

have entrusted public institutions to make such decisions.”) (quotations omitted).  
     The evidence supports that Redmond was concerned about McNeally continuing 
to work directly with students considering her recent behavior and was acting in the 
students’ best interest. Indeed, it is hard to imagine a scenario where a school would not 
be just as interested in suspending a non-employee working within the school who is 

under investigation and being suspended by their own employer for misconduct. 
McNeally has not presented evidence otherwise. The law is not clear that under these 
circumstances Redmond’s actions violated McNeally’s rights. For these reasons, 
Redmond has qualified immunity over McNeally’s First Amendment retaliation claim. 
         3.   Kristi Peterson                                            
    An individual defendant cannot be held liable under § 1983 unless she was 
personally involved in causing the deprivation of a constitutional right. Mayorgo v. 

Missouri, 

, 1132 (8th Cir. 2006). McNeally presents no evidence that 
Peterson took any adverse action against her, and her assertion that Peterson participated 
in or had influence over any of the adverse actions taken is only speculation. Even if 
Peterson were upset about McNeally’s Facebook Post (which she admittedly was), and 
had complained to the Bank or Redmond, no evidence shows that any of the adverse 

actions were taken because of a complaint from Peterson. In other words, there is no 
evidence of but-for causation. McNeally presents no evidence that Peterson 
communicated directly with anyone at the Bank before McNeally’s termination, and 
Peterson testified that she was unaware of any School Board member or District 
employee having a plan with the Bank Defendants to suspend or terminate McNeally. 

(Peterson Depo. at 63–64.)                                                
    Peterson interacted with McNeally only once, at the September 1, 2021 middle 
school parent-teacher meet-and-greet event when McNeally confronted Peterson about 
the masking policy. There is no evidence that Peterson knew that the person who 
confronted her at this event was the same person who had later made the Facebook Post 

about her. There is also no evidence that Peterson was aware of Redmond’s conversation 
with Puffer, the Redmond letter, or the letter’s contents, and the evidence reflects she 
learned of the letter only after it was sent. The only other evidence involving Peterson 
was that she informed Redmond that Alpha News had contacted her, and that she 
responded to Alpha News saying that she had not contacted the Bank about McNeally.  
    None of this is evidence of personal involvement by Peterson in any adverse 
action taken against McNeally. Without evidence of personal involvement by Peterson, 

McNeally’s First Amendment retaliation claim against her fails. It is also not clearly 
established that Peterson’s response to McNeally at the middle school event, Peterson’s 
alleged complaint about the Facebook Post (even if made), Peterson’s report to Redmond 
that a media outlet had contacted her, and Peterson’s response to that media outlet 
violated McNeally’s rights. Peterson is therefore also entitled to qualified immunity. For 

this added reason, McNeally’s claim against Peterson fails and Peterson’s motion for 
summary judgment is granted.                                              
         4.   Shakopee Public Schools/School Board                       
    Because McNeally’s First Amendment retaliation claim against the School Board 
is asserted in the School Board’s official capacity, that claim is no different in its analysis 

than the claim against the School District. Therefore, these claims are addressed together. 
    The School District “cannot be held liable under section 1983 for an injury 
inflicted solely by its employees or agents on a theory of respondeat superior.” 
Springdale Educ. Ass’n v. Springdale Sch. Dist., 

 (8th Cir. 1998). The 
School District can only be held liable under § 1983 for “an official municipal policy or a 

widespread custom or practice that caused the plaintiff’s injury.” Id.    
    In Minnesota, a superintendent is not an authorized policymaker for the school 
district, and therefore § 1983 precludes a claim against the district for a superintendent’s 
actions under the “official policy” theory. Id. at 652; see Minn. Stat. § 123B.143, subd. 1 
(not granting the superintendent policymaking authority). No District policy identified 
here supports retaliating against individuals who speak negatively about or advocate 
against District employees, School Board members, or their positions.     

    As to custom or practice, “[a]n alleged illegal custom [or practice] must be 
widespread and may only subject a school district to liability if it is pervasive enough to 
have the ‘force of law.’” Artis v. Francis Howell N. Band Booster Ass’n, 

, 
1181–82 (8th Cir. 1998). Generally, a single incident cannot by itself establish liability. 
See, e.g., Doe ex rel. Doe v. Sch. Dist. of City of Norfolk, 

, 614 (8th Cir. 

2003). In addition, a plaintiff must show deliberate indifference to or tacit authorization 
of such conduct by the policymaking official after notice to the official of the 
misconduct. A plaintiff must also show that she was injured by acts by the governmental 
entity’s custom or practice—meaning that the custom or practice was the moving force 
behind the constitutional violation. Springdale, 

.         

    McNeally has not shown a custom or practice. While some people criticized the 
School District’s masking policy, from the record none had limits placed on their ability 
to access District property—or were otherwise retaliated against—because of their 
speech, including others who commented on social media. McNeally points to a School 
Board member’s beliefs about Chair Peterson’s conduct, and generally that member 

believes the anti-masking contingent was bullied by those who supported masking. None 
of this shows that the School Board had a custom or practice of retaliation against those 
who did not support masking. McNeally also points to another person’s statement that 
Redmond told him to put on a mask at a School Board meeting, and that the assistant 
superintendent asked him where he worked. But neither the superintendent nor the 
assistant superintendent was a member of the policy-making body (the School Board), 
and neither comment shows that the District had a custom or practice to retaliate against 

people based on their mask-wearing views.                                 
    The only alleged adverse action taken by a person affiliated with the District was 
the letter sent by Redmond, temporarily banning McNeally from school property. The 
School Board had no part in that. Nor were they involved in the Bank’s investigation, 
suspension, or termination of McNeally either. Without evidence supporting a District 

policy, custom, or practice, McNeally’s First Amendment retaliation claim against the 
School District and the School Board fails. The School Defendants’ motion for summary 
judgment is granted.                                                      
    B. Tortious Interference Claim against Redmond                       
    McNeally’s only other claim is that Redmond tortiously interfered with her 

employment agreement with the Bank. To prove tortious interference with contract, 
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). 
    McNeally cannot show that Redmond intentionally procured termination of her 

employment with the Bank. To meet this element, McNeally must show that Redmond 
“caused the breaching party to breach its contract.” Qwest Commc’ns Co. v. Free 
Conferencing Corp., 

 (8th Cir. 2018) (emphasis in original). “Mere 
knowledge that a decision might affect other parties’ contracts is not the same as 
intentional, unjustified interference.” Spice Corp. v. Foresight Mktg. Partners, Inc., Civ. 
No. 07-4767, 

, at *19 (D. Minn. Dec. 22, 2011). The evidence reflects 
that the Bank terminated McNeally based on the results of its own independent 

investigation—and not at the urging or by Redmond’s design. The Bank’s concerns went 
beyond McNeally’s performance in the District. There is no evidence that Redmond 
“intended” for McNeally to be suspended or terminated from her employment at the 
Bank. There were several branches of the Bank other than the School Branch where 
McNeally possibly could have continued to work. No reasonable factual inferences 

support a conclusion that Redmond intended to procure a breach of McNeally’s 
employment agreement. Therefore, Redmond’s motion for summary judgment on the 
tortious interference claim is granted.                                   

    Based on the file, record, and proceedings, and for the reasons stated above, 

IT IS HEREBY ORDERED that:                                                
    1.   Defendant Michael Redmond’s Motion for Summary Judgment (Doc.   
No. 59) is GRANTED;                                                       
    2.   Defendants HomeTown Bank and Lindsey Puffer’s Motion for Summary  
Judgment (Doc. No. 64) is GRANTED;                                        

    3.   Plaintiff Tara C. McNeally’s Motion for Partial Summary Judgment (Doc.  
No. 72) is DENIED;                                                        
    4.   Defendants Shakopee Public Schools, Shakopee Public Schools Board,  
and Kristi Peterson’s Motion for Summary Judgment (Doc. No. 78) is GRANTED; and 
    5.   Plaintiff’s Complaint (Doc. No. 1) is DISMISSED WITH PREJUDICE  
in its entirety.                                                          
    LET JUDGMENT BE ENTERED ACCORDINGLY.                                 



Date: March 25, 2024                    s/ Jerry W. Blackwell             
                                       JERRY W. BLACKWELL                
                                       United States District Judge      

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


Tara C. McNeally,                        Civ. No. 21-2614 (JWB/DTS)      

          Plaintiff,                                                     

v.                                                                       

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

          Defendants.                                                    


J. Ashwin Madia, Esq., and Zane A. Umsted, Esq., Madia Law LLC; Steven M. Cerny, 
Esq., Santi Cerny, PLLC, counsel for Plaintiff.                           

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

Adam Frudden, Esq., and Christian R. Shafer, Esq., Ratwik, Roszak & Maloney, P.A., 
counsel for Shakopee Public Schools, Shakopee Public Schools Board, and Kristi 
Peterson.                                                                 

Sara Gullickson McGrane, Esq., and Zachary Aaron Alter, Esq., Felhaber Larson, 
counsel for Michael Redmond.                                              


                        INTRODUCTION                                     

    Tara McNeally, a bank employee, had been public and vocal in opposing the 
enforced use of masks in public schools during the COVID-19 pandemic. But she had a 
job working for the bank inside a public school that required masking to protect students 
and staff. McNeally’s activism and anti-masking confrontations contributed to her 
eventual employment termination.                                          
    McNeally sued several parties, including the Superintendent of Shakopee Public 
Schools (Michael Redmond), McNeally’s direct employer (HomeTown Bank (“the 
Bank”)), her immediate supervisor at HomeTown Bank (Lindsey Puffer), the Chair of the 

School Board (Kristi Peterson), the Shakopee Public Schools Board, and the Shakopee 
Public Schools (“the District”). Her lawsuit alleges First Amendment retaliation under 

. She also accuses Redmond of tortiously interfering with her 
employment agreement.                                                     
    The Defendants are categorized into three groups: (1) Superintendent Redmond; 

(2) HomeTown Bank and Lindsey Puffer (“the Bank Defendants”); and (3) Kristi 
Peterson, the School Board, and Shakopee Public Schools (“the School Defendants”). 
Each group separately moved for summary judgment. McNeally also filed a partial 
motion for summary judgment against Redmond, HomeTown Bank, and Puffer, asserting 
violations of her rights.                                                 

    McNeally’s claims fail on all counts. It was the Bank—her actual employer—that 
suspended and terminated her and not Superintendent Redmond or the School 
Defendants. A § 1983 claim as asserted here may be maintained against state actors, like 
Redmond and the School Defendants, if they retaliated against McNeally because of the 
content of her speech. The evidence does not support a retaliation claim. As to the Bank 

Defendants, a § 1983 claim can be asserted against a private entity, such as a bank, if the 
evidence shows that the state actors and the Bank colluded to act adversely against 
McNeally because of her speech content. The record does not support collusion. For 
these reasons, and as developed below, McNeally’s partial motion for summary judgment 
is denied and Defendants’ motions for summary judgment are granted.       
                    FACTUAL BACKGROUND                                   

    Starting in 2017, the Shakopee Public Schools Board selected and partnered with 
HomeTown Bank to serve as a business role model for its students. The Bank maintained 
eleven branches across Minnesota at that time. The Bank agreed to provide Shakopee 
Public Schools (“the District”) $300,000 in donations and in-kind contributions, 
including externships and internships, guest speakers, and student development programs. 

In turn, the District agreed to name its Academy of Business & Entrepreneurship after the 
Bank, and designated space on its Shakopee High School property for the Bank to 
operate the “School Branch.”                                              
    McNeally worked at the Shakopee Branch of the Bank and was later hired as the 
only bank employee at the School Branch. In 2021, during the COVID-19 pandemic, she 

worked about six hours per week at the School Branch when it was open. The rest of her 
work week was spent at the Bank’s Shakopee Branch. The Bank, and not the District, 
paid her salary and supervised her work. The District, including Superintendent 
Redmond, had no contractual authority to hire or discipline Bank employees. 
    At the School Branch, McNeally had several job responsibilities, including hiring 

and managing student interns earning academic credit; educating students on financial 
literacy; guest speaking in classes; and serving as a bank teller. An overarching 
requirement of her job was to positively represent HomeTown Bank, to be a goodwill 
ambassador, in the Shakopee Public Schools through her various engagements in the 
District.                                                                 
    It was three years into this partnership when the COVID-19 pandemic hit, 
prompting Minnesota government officials to close schools and businesses, limit 
gatherings, and enact mask mandates as safety measures. COVID-19 policies varied 

throughout 2020 and 2021, as science, research, and debate evolved, with schools 
alternating between remote learning and in-person learning with masking requirements. 
On June 30, 2021, the mask mandate was lifted in Minnesota. But within the next month, 
the Centers for Disease Control and Prevention and the American Academy of Pediatrics 
recommended reinstating masking with the emergence of the COVID Delta variant and 

given the vaccination ineligibility of children under twelve. Local school districts were 
granted the discretion to set masking policies for themselves.            
    That summer, the District, including the School Board, considered whether to 
require masking for students and employees for fall 2021. The School Board, after 
considering recommendations from an advisory group and receiving COVID-19 health 

data, unanimously chose to require masking for elementary students in August 2021. But 
public input was divided. Some parents wanted a mask requirement for all students while 
others wanted parents to have the right to make the masking decision for their children.  
    Besides the masking policy, a School Board proposal for an operating levy to 
support necessary District funding was slated for a November 2021 vote. Some parents, 

including McNeally, leveraged the operating levy vote to obtain greater support for their 
positions opposing masking.                                               
    Following the School Board vote and enactment of the masking policy in the fall 
of 2021, McNeally confronted School Board Chair Kristi Peterson about the masking 
policy at a September 1, 2021 parent-teacher event at West Middle School, a school 
within the District. Peterson described McNeally’s speech as yelling, which McNeally 
denies. (Doc. Nos. 62, 103, Decl. of Zachary A. Alter (“Alter Decl.”), Ex. K, McNeally 

Depo. at 86). Peterson said it “wasn’t a civil discourse conversation.” (Id., Ex. L, 
Peterson Depo. at 47–48, 60.) McNeally says she told Peterson: “[E]ven though you 
don’t know who they are, you feel like you’re able to just medically treat my children. 
And I don’t appreciate it. So, [McNeally said], I hope that you change your mind on the 
masking policy. And if so, I will be glad to vote yes to the levy.” (McNeally Depo. at 86.) 

Peterson listened and then told McNeally that she would research the matter. (Peterson 
Depo. at 47–48, 60.)                                                      
    Six days later, McNeally engaged in another confrontation over masking. 
McNeally was attending a meet-and-greet event in the District at Sweeney Elementary 
School. She was present in an official capacity, promoting the Bank’s interest at the event 

by handing out brochures. She was also present as a member of the Sweeney Elementary 
Parent Teacher Organization (“PTO”). Wearing a mask was mandatory at the school, 
though McNeally was not wearing one. When she was confronted disapprovingly by a 
member of the PTO for not wearing a mask, a pitched exchange ensued. McNeally 
ultimately stated that it was her body and her choice and she stormed out of the event. 

The school principal was present during the exchange, and he reported the disturbance to 
Superintendent Redmond. Of McNeally’s conduct and involvement, the principal in 
expressing his concern over McNeally’s behavior stated that he “came close to calling the 
police to have [McNeally] removed, but eventually she left on her own accord.” (Doc. 
No. 62, Alter Decl., Ex. J, Redmond Depo. at 159.)                        
    The masking policy was discussed again at the next two School Board meetings. 
At the September 13, 2021 meeting, McNeally held a sign that said “MASKS = NO 

LEVY.” (Doc. No. 76, Decl. of Tara C. Mohr (“McNeally Decl.”) ¶ 7.) At the 
September 27, 2021 meeting, parents spoke again on the masking issue. At this meeting, 
the School Board adopted a new resolution by a 6-1 vote, requiring masking for 
elementary and high school students.                                      
    Following the September 27 meeting, McNeally posted a comment in a public 

discussion on a Minnesota legislator’s Facebook page (“the Facebook Post” or “the 
Post”):                                                                   
    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 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???                                                         

(Doc. No. 62, Alter Decl., Ex. D.) McNeally’s Facebook Post came to the attention of 
Superintendent Redmond. Redmond had a pre-arranged meeting with Bank branch 
manager Lindsey Puffer on the next day, and he did raise concerns about McNeally’s 
recent confrontations within the District over the masking policy. (Redmond Depo. at 
157–64; Doc. No. 62, Alter Decl., Ex. I, Puffer Depo. at 187–88.) He and Puffer 
discussed the confrontation between McNeally and Peterson at the September 1 parent-
teacher event. Redmond also informed Puffer about the September 7 incident at Sweeney 
Elementary.                                                               
    They also discussed McNeally’s Facebook Post from the previous night criticizing 
School Board Chair Peterson. Redmond noted the negative tone of the Post. Redmond 
asked as a business partner if Puffer could talk to McNeally about removing the Post, 

emphasizing, however, that she should handle the situation as she saw fit. (See Puffer 
Depo. at 188–89.) Puffer later did make a request to McNeally that she consider deleting 
the Post given the District’s concerns. McNeally refused. And then she went a step 
further in escalating the situation.                                      
    Rather than delete the Post, McNeally instead talked to a news reporter from 

Alpha News. She told him that School Board Chair Peterson had contacted the Bank to 
try to force the removal of her Facebook Post. Peterson had not contacted the Bank and 
the statement was untrue. Peterson then received an inquiry from Alpha News about 
McNeally’s accusation. Peterson, unaware of the Facebook post until then, denied having 
contacted the Bank.                                                       

    Redmond did inform Puffer of the misinformation McNeally had provided to 
Alpha News. He also expressed concern over McNeally’s general behavior given her role 
that directly interacted with students. During this conversation, Puffer told Redmond that 
the Bank would be investigating McNeally’s conduct and that she would be placed on a 
leave of absence pending the investigation. (Redmond Depo. at 172–73.) Puffer also 

asked Redmond to put his concerns in writing.                             
    After his discussion with Puffer, Redmond “hastily” wrote a letter following up on 
their conversation. (Id. at 172.) The letter expressed Redmond’s concerns and barred 
McNeally from school property pending the Bank’s investigation of her conduct. 
Redmond explained that he did this because of his concern “due to the erratic behavior 
incidents and this most recent Alpha News,” and because he “really didn’t think it was a 
good idea for her to be in direct contact with students within our schools.” (Id.) 

    The September 29 letter from Redmond reads:                          
    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. 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.            

(Doc. No. 62, Alter Decl., Ex. D.) The School Board did not know about or approve this 
letter. Redmond informed the School Board of his letter after it was sent. The School 
Board did not discuss or take any action relating to it.                  
    Puffer discussed the McNeally situation with the Bank President and a human 
resources representative. The Bank suspended McNeally on the same date as the 
Redmond letter and began its investigation into her conduct. The District did not conduct 
a separate investigation. Neither Redmond, nor anyone from the District, took any role in 
the Bank’s investigation.                                                 

    At the time of the suspension, Puffer told McNeally that Peterson was not the 
person who had contacted the Bank about her Post. (McNeally Depo. at 135.) Still, 
McNeally continued to repeat the Peterson misinformation, including to another media 
outlet. (Doc. No. 68, Aff. of Brittany King-Asamoa ¶ 5, Ex. D at deposition Ex. 13 
(October 7, 2021 article).)                                               

    During the two weeks after McNeally’s suspension, the Bank received hundreds of 
harassing calls threatening Bank staff and their families related to the McNeally 
suspension and the masking issue. (Puffer Depo. at 248–49.) Because of the threats, the 
Bank had to close the School Branch on October 6 and 8, and disconnected the phones at 
the Shakopee Branch on October 9, 2021. (King-Asamoa Aff. ¶ 18, Ex. Q; Puffer Depo. 

at 249; Doc. No. 83, Decl. of Adam J. Frudden ¶ 23, Ex. 25 at 7.)         
    Other concerns were more directly related to McNeally during the investigation. 
Bank employees said that McNeally threatened to “take everyone down” with her. (King-
Asamoa Aff. ¶ 15, Ex. N at 6.) Given the nature of the environment, employees asked 
that McNeally not be allowed to return to work. (Id.) Apart from challenging the 

District’s masking policy, the Bank learned in its investigation that McNeally had also 
been making negative comments to co-employees at the Bank about their mask usage. 
(Puffer Depo. at 248.)                                                    
    The investigation concluded with multiple findings: that McNeally had violated 
the Bank’s standards of conduct; she had violated the Bank’s internal social media 
guidelines; she could not perform certain job duties because of the ban from school 

property; and she had made improper use of work time. On October 12, 2021, based on 
its investigation and findings, the Bank terminated McNeally from all Bank branch 
facilities.                                                               
                          DISCUSSION                                     
I.   Standard of Review                                                   

    Summary judgment is proper when there are no genuine issues of material fact and 
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. A genuine 
dispute of material fact exists when a reasonable jury could return a verdict for the 
nonmoving party based on the evidence. Anderson v. Liberty Lobby, Inc., 

 (1986). When deciding summary judgment, the record is considered in the light most 

favorable to the nonmoving party, drawing all reasonable inferences in that party’s favor. 
Windstream Corp. v. Da Gragnano, 

, 802–03 (8th Cir. 2014).    
II.  Analysis                                                             
    A.   First Amendment - Retaliation Claim                             
    McNeally alleges unlawful retaliation for protected speech in violation of the First 

Amendment against all Defendants. To establish a First Amendment retaliation claim, 
McNeally must prove that (1) she engaged in protected activity, (2) a government official 
took an adverse action against her that would chill a person of ordinary firmness from 
continuing in the activity, and (3) the protected speech was not only a motivating factor 
in the government official’s decision to take the adverse employment action, but the 
“retaliatory animus” caused plaintiff’s injury. Nieves v. Bartlett, 

, 1722 
(2019); Graham v. Barnette, 

 (8th Cir. 2021).             

         1.   HomeTown Bank and Lindsey Puffer (“the Bank Defendants”)   
    The Bank investigated McNeally after learning of various incidents involving 
McNeally in September 2021, and terminated her for violating the Bank’s standards of 
conduct and social media policies, not performing her job duties because of the ban from 
school property, and for improper use of work time. McNeally alleges that Puffer (and 

therefore HomeTown Bank) conspired with Redmond to have her banned from school 
property, suspended from work, and ultimately terminated from her employment for 
exercising her First Amendment rights, and that the Bank Defendants are liable for 
conspiring under 

.                                        
    Generally, only state actors can be liable under § 1983. Adickes v. S.H. Kress & 

Co., 

 (1970). A private person can be liable under § 1983 if that person 
willfully participated in joint activity with a state actor to deprive the plaintiff of a 
constitutionally protected right. Id. at 152. To proceed under the joint action theory, a 
plaintiff must show that the public and private actors shared a common, unconstitutional 
goal. Stagman v. Ryan, 

 (7th Cir. 1999).                

    Here, there is no evidence of an agreement or shared unconstitutional goal 
between the Bank Defendants and Redmond, the only arguable state actor, to suspend 
and terminate McNeally in retaliation for the comments made by her on her “MASKS = 
NO LEVY” sign or her Facebook Post (the speech underlying McNeally’s claims). 
McNeally’s conclusion that Redmond and Puffer hatched a plan to retaliate against her 
during their lunch meeting, and that their follow-up communication and Redmond’s letter 
temporarily banning McNeally from school property was simply a step in their plan, is 

not supported by the record. See Tirado v. City of Minneapolis, 

, 845 
(D. Minn. 2021) (“Allegations that the parties had an ‘opportunity to communicate’ or 
‘acted in a manner that was consistent with the existence of a conspiracy’ are 
insufficient[.]”).                                                        
    After Puffer was informed that McNeally had made a false report to the media, 

Puffer told Redmond that the Bank would be placing McNeally on a leave of absence 
while the Bank investigated her conduct. This message was relayed to Redmond before 
he sent a letter temporarily and partially banning McNeally from school property. The 
ban set forth in Redmond’s letter was limited to McNeally’s capacity as an employee of 
the Bank within the District, which in effect added nothing meaningful to the Bank’s own 

suspension of her from all Bank locations, which included the School Branch, pending 
the investigation.1                                                       

1    This matter presented before a different judge on Defendants’ motion to dismiss. 
In the order denying Defendants’ motion to dismiss, the district court—based on the 
pleadings—found it plausible for a person to understand the letter to forbid attendance at 
Board meetings or to forbid McNeally from coming onto school property to vote without 
prior permission. (See Doc. No. 37 at 13–14.) The plain language of the letter, however, 
says: “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.” 
(Doc. No. 62, Alter Decl., Ex. D (emphasis added).) The paragraph describing the 
restrictions placed on McNeally must be read within the context of that statement. Even 
    Absent is any evidence that anyone from the District asked the Bank Defendants 
to suspend and later terminate McNeally, or to discipline her at all. And even if Puffer 
and Redmond shared information about McNeally and discussed removal of the 
Facebook Post, this does not show that Puffer and Redmond together devised a plan to 
suspend or terminate McNeally from her employment. See Miller v. Compton, 

, 1098 (8th Cir. 1997) (stating that to survive a motion for summary judgment, 
evidence must be produced from which reasonable jurors could conclude that there was a 
“meeting of the minds”). Instead, the record reveals that the suspension and termination 
were done by McNeally’s employer, the Bank. (See Doc. No. 58, Aff. of Robert 
Southworth ¶ 3.) There is no proper evidence of a meeting of minds to take adverse 

action against McNeally.                                                  
    It is worth underscoring that McNeally was working on school grounds then, with 
direct contact with and supervisory oversight for students. Redmond, as the 
Superintendent, could be expected to raise concerns when someone working on school 
grounds, interacting and overseeing students, had been acting erratically and might act to 

impair the health and safety of students. “Because schools act in loco parentis for 
students, . . . school officials can reasonably predict that parents and students will fear the 
influence of controversial conduct on the learning environment[.]” Riley’s Am. Heritage 


so, the matter is now being considered after discovery and on summary judgment. The 
record is even clearer that the ban was limited to McNeally’s capacity as a Bank 
employee. The evidence reflects the District clarified before the next School Board 
meeting that a parent in McNeally’s situation could attend School Board meetings. And 
McNeally indeed did attend and vote in the November 2021 election on school grounds. 
McNeally has presented no evidence the ban was to be interpreted more broadly. 
Farms v. Elsasser, 

 (9th Cir. 2022) (citations omitted). Redmond’s 
concern about a Bank employee’s impact on students’ health and safety during the 
COVID-19 pandemic aligned with his responsibilities as a school system superintendent. 
Cf. Lloyd v. Sch. Bd. of Palm Beach Cnty., 

, 1183 (S.D. Fla. 2021) 
(“[S]chools have a legitimate interest in promoting the health and safety of its students, 

which extends to efforts to reduce the spread of COVID-19 among students and school 
employees.”) (quotations omitted). Redmond’s following up on his concerns was 
therefore reasonable and in line with his own job duties, not evidence of collusion with 
the Bank.                                                                 
    Nor is there any evidence that Redmond threatened the Bank with any  

consequence if McNeally were not suspended or terminated. And if Redmond’s letter 
could be read to imply that McNeally should be disciplined in some way, a mere 
suggestion by Redmond is not evidence of a meeting of the minds, as required for § 1983 
liability. See Tirado, 521 F. Supp. 3d at 845 (“[M]ere suggestions from one party to 
another are insufficient to establish a meeting of the minds.”). Instead, the evidence 

reflects that when Puffer contacted Redmond for clarification on the letter, Redmond 
stated that he could be convinced to allow McNeally back on school property in her prior 
capacity, depending on the outcome of the investigation. (Redmond Depo. at 224; Puffer 
Depo. at 252.)                                                            
    The evidence also reflects that McNeally’s termination was solely the Bank’s 

decision, based on concerns that went beyond McNeally’s work in the District, following 
the Bank’s independent investigation. The termination mirrored McNeally’s status as an 
at-will employee at the Bank. See Mudlitz v. Mut. Serv. Inc., 

, 393–94 (8th 
Cir. 1996) (stating that under the general rule of employment contract law in Minnesota, 
a person serving as an at-will employee can be terminated at any time with or without 
cause).                                                                   
    Without facts showing collusion between the Bank Defendants and Redmond to 

retaliate against her for her speech, McNeally has not shown that the Bank Defendants’ 
actions were taken under color of state law. Therefore, her claim fails, and the Bank 
Defendants’ motion for summary judgment is granted.                       
         2.   Michael Redmond                                            
    Redmond is a government official when acting in his superintendent capacity and 

could be held liable under § 1983 if McNeally engaged in protected speech and Redmond 
took an adverse action against her that would chill a person of ordinary firmness from 
making similar speech.                                                    
           a.  McNeally’s Speech is Protected Speech                     
    Although McNeally spoke several times and at different forums about the 

District’s masking policy, the speech that is the basis for her First Amendment retaliation 
claim is her School Board meeting sign (“MASKS = NO LEVY”) and her Facebook 
Post. It is undisputed that McNeally was speaking as a citizen when holding her sign and 
when making the Post. And at least arguably, she was speaking on a matter of public 
concern since masking of school children in response to COVID-19 was of public 

concern in the fall of 2021, as was the School Board Chair’s conduct during a School 
Board meeting concerning masking. See Davenport v. Univ. of Ark. Bd. of Trustees, 

 (8th Cir. 2009) (stating that speech is entitled to First Amendment 
protection if the person spoke as a citizen, and not as an employee, on a matter of public 
concern); see also Belk v. City of Eldon, 

 (8th Cir. 2000) (stating that 
matters of political, social, and other concern to the community, as well as speech 
criticizing a public employee in their capacity as a public official address matters of 

public concern). Therefore, McNeally did engage in protected speech.      
           b.  No Adverse Action                                         
    McNeally must also show that Redmond took an adverse action against her that 
would chill an ordinary person from continuing in speech like hers. See Nieves, 139 S. Ct. 
at 1722. McNeally’s claims against Redmond are based on three alleged adverse actions. 

     First, McNeally asserts that when she approached Redmond on September 23, 
2021, to ask how a parent could speak at a School Board meeting, Redmond responded to 
her with a warning to not “get mixed up with that other group of people.” (McNeally 
Depo. at 92.) She claims he also made a veiled threat, stating that she “had done a lot in 
the community” and “worked hard to get to where [she] was,” and that “it would be a 

shame if that were to all go away.” (Id.) Redmond disputes those statements, and instead 
asserts that he responded explaining the process for public comment and for signing up to 
speak. (Redmond Depo. at 147.)                                            
    These statements made by Redmond to McNeally, even if they did occur, are not, 
in and of themselves, adverse actions. The statements may explain Redmond’s thoughts 

about McNeally at that time. But they are not alone adverse actions on which a First 
Amendment retaliation claim may lie. See Whiting v. City of Athens, No. 3:23-cv-220, 

, at *6 (E.D. Tenn. Oct. 18, 2023) (finding the conversation between 
two people was not an adverse action that could support a First Amendment retaliation 
claim because the words did not cause plaintiff to “suffer a threat to his economic 
livelihood”); Hayes v. Dahkle, No. 9:16-CV-1368 (TJM/CFH), 

, at *8 
(N.D.N.Y. Oct. 30, 2017) (finding vague threats that lacked the specificity and 

seriousness to deter the plaintiff from exercising his First Amendment rights were not 
adverse actions); see also Suarez Corp. Indus. v. McGraw, 

, 686 (4th Cir. 
2000) (stating courts have declined to find “criticism, false accusations, or verbal 
reprimands” as adverse actions to support a First Amendment retaliation claim).  
    Second, McNeally contends that Redmond conspired with Puffer to suspend and 

terminate her and that the suspension and termination constitute adverse actions for 
which Redmond can be held liable. For the reasons stated above, there is no evidence that 
Redmond (or anyone from the school) asked or pressured the Bank to take any action—
whether to suspend, terminate, or even to discipline McNeally.            
    That leaves the third alleged adverse action—Redmond’s ban of McNeally from 

school property. McNeally asserts that Redmond’s ban caused her to be suspended and 
later terminated, and, in McNeally’s view, banned her from attending School Board 
meetings and from voting in the November election. Although the evidence reflects that 
Redmond acted in his capacity as school superintendent when he instituted the ban, the 
evidence does not show the limited ban imposed was an adverse action.     

    Changes in conditions that cause “no materially significant disadvantage” are 
“insufficient to establish the adverse conduct required.” Harlston v. McDonnell Douglas 
Corp., 

 (8th Cir. 1994); see also Wagner v. Campbell, 

 
(8th Cir. 2015) (“[N]ot everything that makes an employee unhappy is an actionable 
adverse action.”) (quotations omitted). The limited restriction imposed by Redmond, 
restricting McNeally’s ability to enter school grounds in her capacity as a Bank 
employee, in effect was to occur regardless because the Bank on the same day suspended 

her employment at all branch locations pending the investigation. And, as explained 
above, the limited restriction did not preclude McNeally from speaking at School Board 
meetings or voting.                                                       
    The ban was only temporary pending the outcome of the investigation. Unlike the 
Bank’s suspension, the ban did not (and could not) preclude her from working at any of 

the other Bank branch locations, including the Bank’s Shakopee Branch where she had 
been employed for some time. Therefore, Redmond’s ban did not materially change 
McNeally’s working conditions. Because the change in conditions caused by the ban did 
not disadvantage McNeally in a material way, the ban is not an adverse action. 
McNeally’s First Amendment claim asserted against Redmond fails.          

           c.  The Protected Speech did not Motivate Redmond’s Decision  

    Even if McNeally could show that the ban from school property was an adverse 
action, McNeally must also prove that her protected speech was a motivating factor and 
actually caused Redmond’s decision to temporarily ban her. “It is not enough to show 
that an official acted with a retaliatory motive and that the plaintiff was injured—the 
motive must cause the injury. Specifically, it must be a ‘but-for’ cause, meaning that the 
adverse action against the plaintiff would not have been taken absent the retaliatory 
motive.” Nieves, 139 S. Ct. at 1722 (emphasis in original); see also Hartman v. Moore, 

 (2006) (stating that while it “may be dishonorable to act with an 
unconstitutional motive,” an official’s “action colored by some degree of bad motive 
does not amount to a constitutional tort if that action would have been taken anyway”). 
    McNeally contends Redmond’s motivation for the ban was her Facebook Post, and 

that Redmond was trying to stop her from speaking on public forums or at School Board 
meetings and to eliminate her employment at the Bank’s school location because of the 
content of her speech. McNeally points to Redmond’s letter, which recites the Post and 
does not mention safety concerns, and her termination meeting with the Bank, where the 
Post was discussed.2                                                      

    McNeally’s assertion, however, is not supported by the evidence. Even if there 
were some level of animus by Redmond reflected in his letter, the record reflects that the 
impetus for the letter was Redmond’s concern that McNeally was working directly with 
students on school property after exhibiting what he felt was erratic behavior. This 
included one instance that nearly required police intervention, and another that concerned 

a false report to a media outlet. McNeally ignores her report to Alpha News, which is 
significant in that it occurred after McNeally’s Facebook Post. She also does not address 
what Redmond believed at the time, including that her Alpha News report about Peterson 
was false. Redmond testified that if it were only the Facebook Post, then he would not 


2    The Bank’s termination letter listed other reasons for McNeally’s termination in 
addition to not performing her job duties because of the ban and for violation of social 
media policy. Moreover, the reasons given for her termination are evidence of the Bank’s 
motivations, not Redmond’s motivations, since he was not involved with the Bank’s 
termination decision.                                                     
have talked about an investigation. (Redmond Depo. at 169, 170–71, 219); see Nieves, 
139 S. Ct. at 1722 (“[An] action colored by some degree of bad motive does not amount 
to a constitutional tort if that action would have been taken anyway.”); see also Ackerman 
v. Iowa, 

 (8th Cir. 2021) (stating a plaintiff cannot establish but-for 
causation when an “independent, non-retaliatory” event takes place between protected 

activity and subsequent adverse action).                                  
    Although McNeally tells a different version of what happened at the various 
events, her version was not relayed to Redmond prior to his decision and therefore does 
not create genuine issues of material fact for trial. For the First Amendment retaliation 
analysis, what Redmond reasonably believed is what matters. See Waters v. Churchill, 

 (1994) (stating that “employer decisionmaking will not be unduly 
burdened by having courts look to the facts as the employer reasonably found them to 
be”) (emphasis in original).                                              
    The evidence shows the ban was limited, temporary, implemented for an 
investigation into McNeally’s escalating behavior, and would have been instituted 

regardless of the content of McNeally’s Facebook Post. McNeally has not presented 
evidence that creates a material fact dispute. Therefore, McNeally fails to meet the 
causation requirement for a First Amendment retaliation claim against Redmond.  
           d. The Retaliation Claim against Redmond Fails under Pickering 
    Because Redmond is a government actor, McNeally’s First Amendment claim 

might also be addressed under the Pickering framework. Following Pickering v. Board of 
Education of Township High School District 205, Will County., 

 (1968), 
courts have applied a more deferential standard to government entities when considering 
retaliation claims based on speech by employees. See, e.g., Smith v. Cleburne Cnty. 
Hosp., 

 (8th Cir. 1989) (applying Pickering to an independent 
contractor relationship). When determining whether to apply Pickering, courts consider 
whether the parties have a relationship analogous to that between an employer and 

employee, even if there is not a direct salaried employment relationship. Id.; see also 
Heritage Constructors, Inc. v. City of Greenwood, 

 (8th Cir. 2008) 
(stating Pickering applies if the plaintiff was a regular provider of services to the 
government defendant); Kinney v. Weaver, 

, 360–61 (5th Cir. 2004) 
(applying Pickering to instructors). If the parties have such a relationship, courts balance 

the government’s interests in efficient performance of public services against a person’s 
free speech rights. See Clairmont v. Sound Mental Health, 

 (9th Cir. 
2011).                                                                    
    Although McNeally was employed by HomeTown Bank, she worked on school 
property and provided services for the school, including managing student interns, 

speaking in classes, and teaching financial literacy. The educational services McNeally 
provided to the District implicate the type of heightened government interests that justify 
applying the Pickering framework to a retaliation claim. See Riley’s Am. Heritage Farms, 

; Kinney, 367 F.3d at 360–61.                              
    Under the Pickering framework, McNeally’s interests as a citizen commenting on 

matters of public concern are weighed against the Superintendent’s interest in promoting 
efficient public services in the school district. See Nord v. Walsch Cty., 

 
(8th Cir. 2014). Factors considered include the degree of public concern, whether the 
speech impeded the ability to perform jobs, the importance of coworker relationships, the 
need for workplace harmony, the time, place, and manner of the speech, and context 
around the dispute. Raposa v. Meade Sch. Dist. 46-1, 

, 1352 (8th Cir. 
1986).                                                                    

    As for schools in particular, a certain harmony is needed to educate students, and 
“[u]ndercurrents of hostility and ill will in the classroom can undermine the educational 
process.” Id. That said, actual disruption need not take place before a school is allowed to 
take action. Connick v. Myers, 

 (1983).                  
    Weighing the above factors, Redmond’s interests prevail. Redmond had cause to 

be concerned about McNeally’s behavior being disruptive considering multiple 
disruptions within the school or at school functions over masking; McNeally working in a 
supervisory, mentor, and teacher role at the school; and because of McNeally’s 
confrontations over masking that had escalated during a one-month span. Redmond 
testified that he “was worried about someone working directly with students who . . . had 

been reported to have exhibited erratic behavior now on multiple times.” (Redmond 
Depo. at 162.) Based on the evidence presented, it was reasonable for Redmond to be 
concerned that McNeally’s effect on the students and staff he was charged as 
superintendent to protect might be unsupportive of the masking policy.    
    When weighed against McNeally’s free speech interests, Redmond had good 

reason to issue a ban to protect against disruptions on school premises by McNeally—
“undercurrents of hostility and ill will” that might undermine the educational process—
during the Bank’s investigation. Cf. Melzer v. Bd. of Educ. of the City Sch. Dist. of the 
City of New York, 

, 199 (2d Cir. 2003) (“Any disruption created by parents 
can be fairly characterized as internal disruption to the operation of the school, a factor 
which may be accounted for in the balancing test and which may outweigh a public 
employee’s rights.”). Redmond’s ban promoted efficient public services and was limited, 

measured, and occurred within the context of the Bank suspending McNeally from all 
branch locations during its investigation. McNeally’s free speech interests were not 
curtailed during that time. Considering all the factors, Redmond’s interests prevail. 
    For all the above reasons, McNeally’s First Amendment retaliation claim against 
Redmond fails both under a standard First Amendment analysis and under Pickering.  

           e.  Qualified immunity                                        

    Qualified immunity is an immunity from suit. Mitchell v. Forsyth, 

 (1985). Its purpose is to allow government officials the ability “to make reasonable 
but mistaken judgments about open legal questions.” Lyons v. Vaught, 

 (8th Cir. 2017). To withstand qualified immunity at summary judgment, (1) a 
plaintiff must assert a violation of a constitutional or statutory right; (2) that right must 
have been clearly established at the time of the violation; and (3) given the facts most 
favorable to the plaintiff, there must be no genuine dispute over whether a reasonable 
official would have known that the alleged action violated that right. See Mettler v. 
Whitledge, 

, 1202 (8th Cir. 1999). Courts must review the facts known to 

the public official to determine whether they “reasonably should have known that their 
actions, in light of those facts, would violate the law.” Domina v. Van Pelt, 

 (8th Cir. 2000).                                               
    Here, there is no clearly established law that a superintendent cannot temporarily 
ban a person employed on school grounds from school property in their employee 
capacity with a private employer during an investigation into their allegedly improper 
conduct. See, e.g., JTH v. Mo. Dep’t of Soc. Servs., 

 (8th Cir. 2022) (stating 

the law is not clearly established enough to cover the alleged retaliatory investigation); 
see also Sexton v. Martin, 

, 914 (8th Cir. 2000) (stating that where 
Pickering’s fact-intensive balancing test is at issue, an asserted First Amendment right 
“can rarely be considered clearly established” under a qualified immunity standard). 
Instead, “school officials have broad discretion in restricting visitors on school property 

to protect the safety and welfare of the school children.” Embry v. Lewis, 

, 
889 (8th Cir. 2000); cf. Gunter v. N. Wasco Cty. Sch. Dist. Bd. of Educ., 577 F. Supp. 3d 
at 1156 (“[A] parent may justifiably be expected to act in the child’s best interest. But it 
is that very motivation—laudable in itself—that might lead the parent to misjudge what is 
best for the health of the community as a whole. That is precisely why we, as a society, 

have entrusted public institutions to make such decisions.”) (quotations omitted).  
     The evidence supports that Redmond was concerned about McNeally continuing 
to work directly with students considering her recent behavior and was acting in the 
students’ best interest. Indeed, it is hard to imagine a scenario where a school would not 
be just as interested in suspending a non-employee working within the school who is 

under investigation and being suspended by their own employer for misconduct. 
McNeally has not presented evidence otherwise. The law is not clear that under these 
circumstances Redmond’s actions violated McNeally’s rights. For these reasons, 
Redmond has qualified immunity over McNeally’s First Amendment retaliation claim. 
         3.   Kristi Peterson                                            
    An individual defendant cannot be held liable under § 1983 unless she was 
personally involved in causing the deprivation of a constitutional right. Mayorgo v. 

Missouri, 

, 1132 (8th Cir. 2006). McNeally presents no evidence that 
Peterson took any adverse action against her, and her assertion that Peterson participated 
in or had influence over any of the adverse actions taken is only speculation. Even if 
Peterson were upset about McNeally’s Facebook Post (which she admittedly was), and 
had complained to the Bank or Redmond, no evidence shows that any of the adverse 

actions were taken because of a complaint from Peterson. In other words, there is no 
evidence of but-for causation. McNeally presents no evidence that Peterson 
communicated directly with anyone at the Bank before McNeally’s termination, and 
Peterson testified that she was unaware of any School Board member or District 
employee having a plan with the Bank Defendants to suspend or terminate McNeally. 

(Peterson Depo. at 63–64.)                                                
    Peterson interacted with McNeally only once, at the September 1, 2021 middle 
school parent-teacher meet-and-greet event when McNeally confronted Peterson about 
the masking policy. There is no evidence that Peterson knew that the person who 
confronted her at this event was the same person who had later made the Facebook Post 

about her. There is also no evidence that Peterson was aware of Redmond’s conversation 
with Puffer, the Redmond letter, or the letter’s contents, and the evidence reflects she 
learned of the letter only after it was sent. The only other evidence involving Peterson 
was that she informed Redmond that Alpha News had contacted her, and that she 
responded to Alpha News saying that she had not contacted the Bank about McNeally.  
    None of this is evidence of personal involvement by Peterson in any adverse 
action taken against McNeally. Without evidence of personal involvement by Peterson, 

McNeally’s First Amendment retaliation claim against her fails. It is also not clearly 
established that Peterson’s response to McNeally at the middle school event, Peterson’s 
alleged complaint about the Facebook Post (even if made), Peterson’s report to Redmond 
that a media outlet had contacted her, and Peterson’s response to that media outlet 
violated McNeally’s rights. Peterson is therefore also entitled to qualified immunity. For 

this added reason, McNeally’s claim against Peterson fails and Peterson’s motion for 
summary judgment is granted.                                              
         4.   Shakopee Public Schools/School Board                       
    Because McNeally’s First Amendment retaliation claim against the School Board 
is asserted in the School Board’s official capacity, that claim is no different in its analysis 

than the claim against the School District. Therefore, these claims are addressed together. 
    The School District “cannot be held liable under section 1983 for an injury 
inflicted solely by its employees or agents on a theory of respondeat superior.” 
Springdale Educ. Ass’n v. Springdale Sch. Dist., 

 (8th Cir. 1998). The 
School District can only be held liable under § 1983 for “an official municipal policy or a 

widespread custom or practice that caused the plaintiff’s injury.” Id.    
    In Minnesota, a superintendent is not an authorized policymaker for the school 
district, and therefore § 1983 precludes a claim against the district for a superintendent’s 
actions under the “official policy” theory. Id. at 652; see Minn. Stat. § 123B.143, subd. 1 
(not granting the superintendent policymaking authority). No District policy identified 
here supports retaliating against individuals who speak negatively about or advocate 
against District employees, School Board members, or their positions.     

    As to custom or practice, “[a]n alleged illegal custom [or practice] must be 
widespread and may only subject a school district to liability if it is pervasive enough to 
have the ‘force of law.’” Artis v. Francis Howell N. Band Booster Ass’n, 

, 
1181–82 (8th Cir. 1998). Generally, a single incident cannot by itself establish liability. 
See, e.g., Doe ex rel. Doe v. Sch. Dist. of City of Norfolk, 

, 614 (8th Cir. 

2003). In addition, a plaintiff must show deliberate indifference to or tacit authorization 
of such conduct by the policymaking official after notice to the official of the 
misconduct. A plaintiff must also show that she was injured by acts by the governmental 
entity’s custom or practice—meaning that the custom or practice was the moving force 
behind the constitutional violation. Springdale, 

.         

    McNeally has not shown a custom or practice. While some people criticized the 
School District’s masking policy, from the record none had limits placed on their ability 
to access District property—or were otherwise retaliated against—because of their 
speech, including others who commented on social media. McNeally points to a School 
Board member’s beliefs about Chair Peterson’s conduct, and generally that member 

believes the anti-masking contingent was bullied by those who supported masking. None 
of this shows that the School Board had a custom or practice of retaliation against those 
who did not support masking. McNeally also points to another person’s statement that 
Redmond told him to put on a mask at a School Board meeting, and that the assistant 
superintendent asked him where he worked. But neither the superintendent nor the 
assistant superintendent was a member of the policy-making body (the School Board), 
and neither comment shows that the District had a custom or practice to retaliate against 

people based on their mask-wearing views.                                 
    The only alleged adverse action taken by a person affiliated with the District was 
the letter sent by Redmond, temporarily banning McNeally from school property. The 
School Board had no part in that. Nor were they involved in the Bank’s investigation, 
suspension, or termination of McNeally either. Without evidence supporting a District 

policy, custom, or practice, McNeally’s First Amendment retaliation claim against the 
School District and the School Board fails. The School Defendants’ motion for summary 
judgment is granted.                                                      
    B. Tortious Interference Claim against Redmond                       
    McNeally’s only other claim is that Redmond tortiously interfered with her 

employment agreement with the Bank. To prove tortious interference with contract, 
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). 
    McNeally cannot show that Redmond intentionally procured termination of her 

employment with the Bank. To meet this element, McNeally must show that Redmond 
“caused the breaching party to breach its contract.” Qwest Commc’ns Co. v. Free 
Conferencing Corp., 

 (8th Cir. 2018) (emphasis in original). “Mere 
knowledge that a decision might affect other parties’ contracts is not the same as 
intentional, unjustified interference.” Spice Corp. v. Foresight Mktg. Partners, Inc., Civ. 
No. 07-4767, 

, at *19 (D. Minn. Dec. 22, 2011). The evidence reflects 
that the Bank terminated McNeally based on the results of its own independent 

investigation—and not at the urging or by Redmond’s design. The Bank’s concerns went 
beyond McNeally’s performance in the District. There is no evidence that Redmond 
“intended” for McNeally to be suspended or terminated from her employment at the 
Bank. There were several branches of the Bank other than the School Branch where 
McNeally possibly could have continued to work. No reasonable factual inferences 

support a conclusion that Redmond intended to procure a breach of McNeally’s 
employment agreement. Therefore, Redmond’s motion for summary judgment on the 
tortious interference claim is granted.                                   

    Based on the file, record, and proceedings, and for the reasons stated above, 

IT IS HEREBY ORDERED that:                                                
    1.   Defendant Michael Redmond’s Motion for Summary Judgment (Doc.   
No. 59) is GRANTED;                                                       
    2.   Defendants HomeTown Bank and Lindsey Puffer’s Motion for Summary  
Judgment (Doc. No. 64) is GRANTED;                                        

    3.   Plaintiff Tara C. McNeally’s Motion for Partial Summary Judgment (Doc.  
No. 72) is DENIED;                                                        
    4.   Defendants Shakopee Public Schools, Shakopee Public Schools Board,  
and Kristi Peterson’s Motion for Summary Judgment (Doc. No. 78) is GRANTED; and 
    5.   Plaintiff’s Complaint (Doc. No. 1) is DISMISSED WITH PREJUDICE  
in its entirety.                                                          
    LET JUDGMENT BE ENTERED ACCORDINGLY.                                 



Date: March 25, 2024                    s/ Jerry W. Blackwell             
                                       JERRY W. BLACKWELL                
                                       United States District Judge