CASE 0:15-cv-00078-DSD-KMM Document 41 Filed 06/30/16 Page 1 of 16

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 15-78(DSD/KMM)
Eddie Frizell
Plaintiff,
ORDER

v.
Janee Harteau and
the City of Minneapolis,
Defendants.

Kevin D. Hofman, Esq. and Halleland Habicht PA, 33 South 6th
Street, Suite 3900, Minneapolis, MN 55402, counsel for
plaintiff.
Sara J. Lathrop, Esq. and Minneapolis City Attorney’s Office,
350 South 5th Street, Room 210, Minneapolis, MN 55415, counsel
for defendants.
This matter is before the court upon the motion for summary
judgment by defendants Janeé Harteau and the City of Minneapolis.
After a review of the file, record, and proceedings herein, and for
the following reasons, the court grants the motion.

BACKGROUND
This employment dispute arises out of the removal of plaintiff
Eddie Frizell from his position as Deputy Chief of Patrol of the
Minneapolis Police Department (MPD).
the

MPD

since

department.

1993,

has

held

Frizell, who has worked for

various

positions

within

the

In late 2012, Police Chief Harteau appointed Frizell,

then a lieutenant, to the position of Deputy Chief of Patrol.
Lathrop Decl. Ex. 2.

Frizell was responsible for the five MPD

 CASE 0:15-cv-00078-DSD-KMM Document 41 Filed 06/30/16 Page 2 of 16

precincts and a special operations unit.1
Harteau appointed Matthew Clark as Assistant Chief.

Frizell

and two other deputy chiefs - Travis Glampe and Kris Arneson reported to Clark, who in turn, reported to Harteau.2

Frizell and

Clark had worked together in the past and, for reasons that are
neither clear nor material, did not get along. See Frizell Dep. at
38:9-39:23; Clark Dep. at 8:11-10:2.

Harteau was aware of the

conflict, but did not believe it would be disruptive. Harteau Dep.
at 68:11-69:6.
Although Frizell initially performed well, approximately six
months in to his appointment, Clark reported that Frizell was
unresponsive and delinquent in providing his subordinates with
important information.

Id. at 52:4-22.

Arneson made similar complaints.

Deputy chiefs Glampe and

Id. at 55:16-56:25; Glampe Dep.

at 19:2-5; Frizell Dep. at 84:12-88:2.

Glampe also noted that the

problems between Frizell and Clark inhibited the team’s ability to
resolve larger department issues.

Glampe Dep. at 19:5-20:4.

Frizell denies having performance issues, but acknowledges that he
and Clark often clashed.

See Frizell Dep. at 38:15-17, 47:18-23;

66:18-24, 74:2-7.

1

In addition to his job with the MPD, Frizell is a colonel
in the Army National Guard. Frizell Dep. at 5:13-15, 6:11-7:5. He
has served honorably through two combat tours. Id. at 12:5-9.
2

Harteau referred to her deputy chiefs and the assistant
chief as her “executive team.” See Harteau Dep. at 60:20-23.
2

 CASE 0:15-cv-00078-DSD-KMM Document 41 Filed 06/30/16 Page 3 of 16

Harteau, Clark, and Frizell met more than once to discuss the
ongoing issues.

Harteau Dep. at 57:4-9.

Harteau took no formal

action, but directed Frizell to be more responsive and to ask for
help

when

needed.

Id.

at

60:18-61:10.

When

the

problems

persisted, Harteau met with the assistant chief and deputy chiefs,
including Frizell, in January 2014.
Harteau Dep. at 62:23-63:2.

Frizell Dep. at 96:22-97:15;

Frizell’s colleagues again expressed

concerns about his responsiveness and trustworthiness.
Dep. at 64:4-10.
64:11-24.

The meeting did not resolve matters.

Harteau
Id. at

Thereafter, Harteau considered “unappointing” Frizell.

Id. at 64:25-65:15.

She met with the City Attorney to discuss her

options and also met with a consultant to explore how best to
manage, and possibly remove, Frizell from his position.

Id. at

64:25-65:15; Buford Decl. ¶¶ 3-4; id. Ex. A.
On June 3, 2014, before Harteau could made a final decision,
Frizell

announced

his

Lathrop Decl. Ex. 6.
decision to do so.

candidacy

for

Hennepin

County

Sheriff.

Harteau told Frizell that she supported his
Frizell Dep. at 152:4-12.

According to

Frizell, however, Harteau also told him that “by running for
office, you let your troops down.”

Id. at 142:22-23.

Frizell

interpreted the comment to mean that Harteau was upset with him.
Id. at 142:23-143:7.

Harteau suggested that Frizell take a paid

leave of absence from his position with the MPD to focus on the
campaign, and he did so.

Id. at 142:16-21.

3

 CASE 0:15-cv-00078-DSD-KMM Document 41 Filed 06/30/16 Page 4 of 16

During Frizell’s leave of absence, Clark handled Frizell’s
duties along with his assistant chief duties.
11.

Clark Dep. at 49:3-

Harteau was pleased with the arrangement and decided to

formally combine those positions and create a new position, deputy
chief of staff.3

Harteau Dep. at 84:4-88:4.

Harteau did not

consider Frizell for the chief of staff position because Frizell’s
strength is “patrol centered” rather than administrative.

Id. at

88:5-14.
Frizell lost the election.

On November 12, 2014, Frizell and

Harteau met to discuss his return to the MPD.

Id. at 95:2-11.

Harteau secretly recorded the conversation because Frizell could be
defensive when faced with criticism and she was concerned that he
might later challenge her version of events.

Id. at 96:6-97:4.

Harteau told Frizell that she was going to make structural changes
to the team by combining the assistant chief and deputy chief of
patrol positions.

Lathrop Ex. 7, at 2:00-35.

She noted the

ongoing “team dynamic struggles” and her desire to have “a strong
functioning team.” Id. at 3:04-18, 4:35-43. She told Frizell that
he would no longer be a part of the executive team, but that she
wanted him on her management team as a commander.

Id. at 2:57-

3:04, 3:19-23. Although Frizell expressed concern about a decrease

3

Harteau was limited to three deputy chief positions.
Harteau Dep. at 86:13-20. Combining the assistant chief and deputy
chief of patrol positions enabled to her to create the chief of
staff position with the appropriate rank and authority. Id. at
85:23-86:5, 89:5-10.
4

 CASE 0:15-cv-00078-DSD-KMM Document 41 Filed 06/30/16 Page 5 of 16

in salary, he was open to the change and interested in the
lieutenant-level watch commander position.
13:20-53.

Id. at 10:40-11:30,

Harteau further explained that other changes would be

made as well and that her goal was to “put people where [they’re]
most valuable.”

Id. at 8:42-9:03.

At the end of the meeting,

Frizell acknowledged that team dynamics necessitated the change:
Frizell: “You know, I hope my performance didn’t become
a part of that, just, I understand the fit part. You
know, I’ve always tried to give you 100% and give the
department that.”
Harteau: “Well it’s just, it’s team dynamics. You know.
It’s just I have to have a strong functioning team and
... that’s just not working.”
Frizell: “Not a problem, I totally agree with you.
mean I’m not pushing back on that ....”

I

Id. at 21:37-22:05.
When Frizell returned to work on November 17, 2015, Harteau
gave him a formal offer for the commander position, including an
employment contract to sign.

Lathrop Decl. Ex. 8.

She also

offered a severance agreement and release relating to his removal
from the deputy chief position.

At a meeting the following day,

Harteau gave Frizell letter notifying him that he could request a
Veteran’s Preference Act (VPA) hearing and that the city retained
the right to claim that he is ineligible for such a hearing.

Id.

Ex. 9.
On November 19, Harteau announced, among other changes, that
Frizell

would

serve

as

the

commander

5

of

operations

and

 CASE 0:15-cv-00078-DSD-KMM Document 41 Filed 06/30/16 Page 6 of 16

administration beginning in January.

Id. Ex. 10.

At that point,

however, Frizell had not yet accepted the position.

He was

surprised by the announcement and felt it was designed to pressure
him to make a decision.
After

the

Frizell Dep. at 185:14-25.

announcement,

a

reporter

contacted Frizell for comment.

for

Lathrop Ex. 11.

knowing the reason for Harteau’s decision:

the

StarTribune

Frizell denied

“I didn’t deserve this

and if there’s a person that can articulate (why this happened) we
would have found them already.”
quoted accurately.

Id.

Frizell admits that he was

Frizell Dep. at 189:15-21.

Harteau discussed the article with Frizell and he explained that he
did not want to “get into team dynamics with a reporter.”

Harteau

Dep. at 135:23-25. He also denied understanding the reason for his
removal, despite his earlier statements to the contrary.
Dep. at 194:10-15.

Frizell

Concerned with his trustworthiness in light of

the article, Harteau withdrew her offer to appoint him commander
and reassigned him to lieutenant, his civil service rank.

Lathrop

Decl. Ex. 12; Harteau Dep. at 135:1-13.
Frizell believes that Harteau’s decision to remove him was
motivated by his decision to run for sheriff against incumbent
Richard Stanek.

Harteau denies the allegation and Stanek denies

any

in

involvement

Stanek Aff. ¶ 3.

employment

decisions

relating

to

Frizell.

Frizell also believes that Harteau withdrew the

commander offer simply because he spoke to the press.

6

Harteau

 CASE 0:15-cv-00078-DSD-KMM Document 41 Filed 06/30/16 Page 7 of 16

maintains that she withdrew the offer because his statement to the
press was untrue.
On January 14, 2015, Frizell filed this suit alleging that
Harteau and the City of Minneapolis violated the VPA by denying him
a hearing, and 42 U.S.C. § 1983 by denying his due process rights
under the Fourteenth and Fifth Amendments4 and retaliating against
him exercising free speech in violation of the First Amendment.
Defendants now move for summary judgment.

DISCUSSION
I.

Standard of Review
“The court shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”

Fed. R. Civ.

P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
the case.
(1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

A dispute is genuine if the evidence is such that it could

cause a reasonable jury to return a verdict for either party.

See

id. at 252.
On a motion for summary judgment, the court views all evidence
and inferences in a light most favorable to the nonmoving party.

4

The complaint alleges a violation of the Fourth Amendment,
but the claim is properly brought under the Fifth Amendment.
7

 CASE 0:15-cv-00078-DSD-KMM Document 41 Filed 06/30/16 Page 8 of 16

Id. at 255.

The nonmoving party, however, may not rest upon mere

denials or allegations in the pleadings but must set forth specific
facts sufficient to raise a genuine issue for trial.
U.S. at 324.

Celotex, 477

A party asserting that a genuine dispute exists - or

cannot exist - about a material fact must cite “particular parts of
materials in the record.”

Fed. R. Civ. P. 56(c)(1)(A).

If a

plaintiff cannot support each essential element of a claim, the
court must grant summary judgment because a complete failure of
proof regarding an essential element necessarily renders all other
facts immaterial.
II.

Celotex, 477 U.S. at 322-23.

VPA
The VPA provides that honorably discharged veterans may not be

“removed” from employment by a city “except for incompetency or
misconduct shown after a hearing, upon due notice, upon stated
charges, in writing.”

Minn. Stat. § 197.46(a).

Frizell argues

that defendants violated the VPA by not granting him a hearing
before he was demoted from commander to lieutenant.5
argument is unavailing.

Frizell’s

“The formation of a contract requires

communication of a specific and definite offer, acceptance, and
consideration.” Commercial Assocs., Inc. v. Work Connection, Inc.,
712 N.W.2d 772, 782 (Minn. Ct. App. 2006).

The record establishes

that although Frizell was offered the commander position, he never

5

Frizell concedes that he had no right to a VPA hearing
relating to his removal from the position of deputy chief. See ECF
No. 24.
8

 CASE 0:15-cv-00078-DSD-KMM Document 41 Filed 06/30/16 Page 9 of 16

accepted that offer.
21, 35:19-21.

See Compl. ¶¶ 17, 22; Frizell Dep. at 31:13-

Harteau’s announcement that Frizell would serve as

commander - although certainly premature and possibly designed to
pressure Frizell into accepting the position - does not constitute
acceptance by Frizell.
Frizell argues that there is a fact dispute as to whether he
entered into an oral contract to serve as commander.

The record

does not support such a finding given Frizell’s admission that he
never accepted the offer.

Moreover, it is undisputed that Frizell

never signed a contract setting forth the terms and conditions of
the commander position as required.

See Minneapolis, Minn.,

Ordinance 20.456 (“All full-time employees ... shall enter into an
employment contract with the city.

The employment contract shall

set forth all the terms and conditions of employment ....”).
Even if Frizell had accepted the position, however, it is
undisputed that he did not request a VPA hearing despite having
notice of his right to do so.
thus waived his claim.

See Lathrop Decl. Ex. 9.

He has

See Minn. Stat. § 176.46(b) (“The failure

of a veteran to request a hearing within the provided 60-day period
shall constitute a waiver of the right to a hearing.
shall

also

waive

reinstatement.”).

all

other

available

remedies

for

Frizell’s VPA claims fails as a matter of law.

III. Due Process
A.

legal

Such failure

Harteau in Her Individual Capacity

9

 CASE 0:15-cv-00078-DSD-KMM Document 41 Filed 06/30/16 Page 10 of 16

Frizell argues that Harteau, in her individual capacity,
violated § 1983 by denying him a hearing under the VPA.
the

court

dismisses

the

VPA

claim,

this

claim

must

Because
also

be

dismissed.
B.

Harteau in Her Official Capacity and the City

Frizell also argues that Harteau, in her official capacity,
and the City violated § 1983 by demoting him from commander to
lieutenant.6

As already discussed, Frizell did not accept the

offer to become commander.
IV.

Accordingly, this claim also fails.

First Amendment
Harteau

moves

for

summary

judgment

on

Frizell’s

Amendment claim on the basis of qualified immunity.

First

“Qualified

immunity protects government officials performing discretionary
functions ... from liability for civil damages insofar as their
conduct

does

not

violate

clearly

established

statutory

or

constitutional rights of which a reasonable person would have
known.” Crutcher-Sanchez v. Cty. of Dakota, 687 F.3d 979, 984 (8th
Cir. 2012) (citations and internal quotation marks omitted). The
qualified immunity analysis has two components:

whether the

government official violated the plaintiff’s rights and whether the
right was clearly established.
232 (2009).

Pearson v. Callahan, 555 U.S. 223,

“If the answer to either question is no, then [the

6

Frizell has withdrawn the claim that his due process rights
were violated due to his removal as deputy chief.
10

 CASE 0:15-cv-00078-DSD-KMM Document 41 Filed 06/30/16 Page 11 of 16

defendant] is entitled to qualified immunity.”

Doe v. Flaherty,

623 F.3d 577, 583 (8th Cir. 2010).
Frizell alleges that Harteau removed him as deputy chief and
then withdrew the offer to become commander7 to retaliate against
him for running for sheriff and commenting to the press about his
removal. To prevail on a § 1983 claim for retaliation in violation
of the First Amendment, Frizell must demonstrate that (1) he
engaged in a protected activity; (2) Harteau took adverse action
against him; and (3) the protected activity was a “substantial or
motivating factor” in the adverse employment action.

Davison v.

City of Minneapolis, 490 F.3d 648, 655-56 (8th Cir. 2007). Whether
speech is constitutionally protected is a question of law, whereas
the question of whether the speech was a substantial or motivating
factor is a question of fact.

Kincade v. City of Blue Springs, 64

F.3d 389, 395 (8th Cir. 1995); Cox v. Dardanelle Pub. Sch. Dist.,
790 F.2d 668, 675 (8th Cir. 1986).
A.

Run for Office

Although Frizell has established the first two elements of his
retaliation

claim

with

respect

to

his

run

for

sheriff

and

subsequent removal - protected activity and adverse action - he has

7

Frizell bases his retaliation claim on the allegation that
he was demoted from commander to lieutenant but, as noted, Frizell
never accepted the commander position. The court will consider the
claim in the context of the withdrawal of the offer and will
assume, without deciding, that the withdrawal constituted an
adverse employment action.
11

 CASE 0:15-cv-00078-DSD-KMM Document 41 Filed 06/30/16 Page 12 of 16

failed to establish a causal connection between the two.
The record supports Harteau’s explanation that she removed
Frizell as deputy chief because (1) he was the source of conflict
within her executive team; (2) the team functioned more efficiently
during his leave of absence; and (3) she decided to combine the
assistant chief and deputy chief of patrol positions.
Frizell responds to this evidence with subjective beliefs
untethered to concrete facts.
Harteau

did

not

approve

of

For example, Frizell claims that
his

run

for

sheriff

because

she

commented that “by running for office, you let your troops down.”
Frizell Dep. at 142:22-23.

Even assuming Harteau made such a

statement, it is insufficient to support a finding that Harteau
removed him as deputy chief in retaliation for running for sheriff.
He also asserts that Harteau removed him in order to appease Stanek
and to neutralize him as a threat to her own reappointment.
are no facts in the record to support such a theory.

There

Frizell’s

reliance on Harteau’s alleged comment that she couldn’t “cross”
Stanek because he would “take her out,” is unavailing.

Frizell

Dep. at 139:13-17. According to Frizell, Harteau made that comment
in

a

conversation

sheriff.

See id.

unrelated

to

and

before

Frizell’s

run

for

It lacks probative value in this context,

particularly given the dearth of any other evidence in support of
Frizell’s theory.

12

 CASE 0:15-cv-00078-DSD-KMM Document 41 Filed 06/30/16 Page 13 of 16

The proximity between Frizell’s run for sheriff and his
removal is likewise insufficient to establish causation.
record shows

that

Harteau

was

aware

of,

and

struggled

The
with,

Frizell’s performance problems for months preceding his leave of
absence and that she contemplated removing him as deputy chief
before he announced his candidacy.

Frizell’s intervening run for

office does not create a causal link under these circumstances.
See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001)
(holding that “proceeding along lines previously contemplated,
though not yet definitively determined, is no evidence whatever of
causality”).

As a result, Frizell has failed to establish a

constitutional violation with respect to his removal.
B.

Comments to the Press

Frizell’s claim that Harteau withdrew the commander offer
because he spoke to the press also fails because his speech was
neither constitutionally protected nor a substantial or motivating
factor in the adverse employment action.
1.

First Amendment Protection

The court determines whether a public employee’s speech is
protected by the First Amendment through a two-step inquiry.
Connick v. Myers, 461 U.S. 138, 143-147 (1983); Kincade, 64 F.3d at
395.

First, the court decides whether the speech touches upon a

matter of public concern by evaluating its content, form, and
context.

Kincade, 64 F.3d at 396.

13

If the speech touches on a

 CASE 0:15-cv-00078-DSD-KMM Document 41 Filed 06/30/16 Page 14 of 16

matter of public concern, the court then balances the employee’s
interest

as

a

citizen

in

commenting

on

the

matter

with

the

employer’s interest in promoting the efficiency of performing its
services.

Id. at 395 (citing Pickering v. Bd. of Educ., 391 U.S.

563, 568 (1968)).
Speech touches upon a matter of public concern if it is a
matter of “political, social or other concern of the community at
large” rather than a matter of personal interest.
(quoting Connick, 461 U.S. at 146).

Id. at 396

The court focuses on whether

the plaintiff advanced the speech as a “concerned public citizen,
informing the public that the state institution is not properly
discharging its duties” or merely as an employee concerned with
internal policies and practices relevant only to the institution’s
employees.

Id.

“If the speech was mostly intended to further the

employee’s private interests rather than to raise issues of public
concern, [his] speech is not protected, even if the public might
have an interest in the topic of [his] speech.”

Bailey v. Dep’t of

Elementary & Secondary Educ., 451 F.3d 514, 518 (8th Cir. 2006)
(quoting Schilcher v. Univ. of Ark.,387 F.3d 959, 963 (8th Cir.
2004)).
Frizell’s comments to the press were purely job-related and
designed to further his private interests.
on his removal, he said:

When asked to comment

“I didn’t deserve this and if there’s a

person that can articulate (why this happened) we would have found

14

 CASE 0:15-cv-00078-DSD-KMM Document 41 Filed 06/30/16 Page 15 of 16

them already .... I’m not planning on signing any documents until
I have them looked at by a professional in the area.”
Decl. Ex. 11.

Lathrop

Even construed in the light most favorable to

Frizell, the court cannot conclude that his comments were made as
a concerned public citizen.

As a result, Frizell’s speech is not

constitutionally protected.
2.

Causation

Frizell has also failed to establish causation.

The record

demonstrates that Harteau withdrew the offer, not because Frizell
spoke to the press, but because he was dishonest when he did so.
During their conversation about his removal, Frizell indicated that
he understood the reasons for her decision and, notably, said that
he agreed with her.

Lathrop Decl. Ex. 7, at 21:37-22:05.

His

later statement to the press that he had not been given a reason
for his removal was thus plainly untrue.

Further, Frizell’s

explanation that his statement was the result of confusion and an
effort to protect the MPD’s internal politics is unpersuasive given
the inflammatory nature of the statement, nor does his explanation
make his statement any less false.
reasonable

jury

could

find

Under these circumstances, no

that

Harteau’s

actions

were

substantially motivated by Frizell’s exercise of free speech.
Given

the

absence

of

a

constitutional

violation,

Harteau

is

entitled to qualified immunity and summary judgment is warranted on
the

First

Amendment

claim

against

15

Harteau

in

her

individual

 CASE 0:15-cv-00078-DSD-KMM Document 41 Filed 06/30/16 Page 16 of 16

capacity.
As to the City,8 a municipality is only subject to liability
under § 1983 when the plaintiff establishes that the municipality
maintained a policy, custom, or practice “the implementation of
which amounted to deliberate indifference to his constitutional
rights.”

Lund v. Hennepin Cty., 427 F.3d 1123, 1125 (8th Cir.

2005) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691
(1978)).

A municipality cannot be held liable under § 1983 unless

a municipal employee is found liable on an underlying substantive
constitutional claim.

Monell, 436 U.S. at 691; Abbott v. City of

Crocker, 30 F.3d 995, 998 (8th Cir. 1994).

Because the court

determines that Harteau did not violate Frizell’s constitutional
right to free speech, the City is entitled to summary judgment.

CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that the
motion for summary judgment [ECF No. 25] is granted.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: June 30, 2016
s/David S. Doty
David S. Doty, Judge
United States District Court

8

A suit against Harteau in her official capacity is actually
a suit “against the municipality.” Hess v. Ables, 714 F.3d 1048,
1054 (8th Cir. 2013).
16