Tara C. McNeally v. HomeTown Bank

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 24-1867
___________________________
Tara C. McNeally
Plaintiff - Appellant
v.
HomeTown Bank; Lindsey Puffer, Branch Manager and Vice President, in her
individual capacity; Shakopee Public Schools, Independent School District No.
720; Shakopee Public Schools Board; Michael Redmond, Superintendent, in his
individual capacity; Kristi Peterson, Board Chair, in her individual capacity
Defendants - Appellees
____________
Appeal from United States District Court
for the District of Minnesota
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Submitted: February 11, 2025
Filed: October 20, 2025
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Before SMITH, KELLY, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
Tara McNeally brought a First Amendment retaliation claim against
HomeTown Bank and Shakopee Public Schools (SPS) officials under 42 U.S.C.
§ 1983, alleging that the bank and SPS worked together to fire her after she posted
on social media criticizing school mask policies. She named the Bank, Bank Vice

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President Lindsey Puffer, SPS Superintendent Michael Redmond, SPS Board Chair
Kristi Peterson, and SPS as defendants. She also brought a tortious interference with
contract claim against Redmond under Minnesota law. The district court granted
summary judgment to all defendants. We affirm in part and reverse in part.
I.
In exchange for $300,000 in money and services over five years, SPS allowed
the Bank to operate a branch at Shakopee High School. In early 2020, the Bank
hired McNeally to work in two branch offices, including the one at the high school.
Superintendent Redmond was informally involved in her hiring, but McNeally
worked for the Bank. She spent about six to eight hours at the school branch each
week and the rest of her time at the other location. The Bank paid her salary and
gave her good to excellent performance ratings.
McNeally’s two children attend SPS schools. She went to a Board meeting
on August 23, 2021 where the Board unanimously approved a mask mandate for the
upcoming school year. On September 1, McNeally confronted Peterson over SPS’s
mask policy at a parent-teacher event in what Peterson described as not “civil
discourse.” McNeally told Peterson she would vote for an upcoming levy in the
November election but only if SPS rescinded the mask policy.
On September 7, McNeally attended a meet-and-greet at her child’s
elementary school as a member of the Parent Teacher Organization and as a Bank
employee. Another parent confronted her for not wearing a mask. McNeally told
Puffer about the interaction. The next day, McNeally resigned from the PTO, and
the school’s principal reported the incident to Redmond.
There was another school board meeting on September 13. Masking was on
the agenda. McNeally did not speak but held a sign, “MASKS = NO LEVY.” The
Board again voted to approve the mask mandate.

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McNeally went to another board meeting on September 27. Afterwards,
McNeally posted a public comment on her state legislator’s Facebook page:
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 towards these children . . . . but that lady showed she
has NO HEART! Who does that???
The next day, Puffer and Redmond met for lunch. They discussed McNeally
and her Facebook post for about ten minutes. Redmond said he found the post
“somewhat distasteful” and told Puffer, “you can do whatever you want with [the
post]. If it were my employee, I would just want to be made aware of it.” Redmond
continued, “if [you] d[o] talk to [McNeally],” ask her “to take it down.” But he
“reiterated” at the end, he was “ask[ing] as a business partner” and “in no way . . .
telling [Puffer] what to do.”
Immediately after lunch, Puffer texted McNeally: “Hey . . . any way you
could take down your post on Kristi Peterson? We’ll talk later about it . . . but the
school is pretty upset.” McNeally asked who “the school” was, and Puffer
responded, “District offices . . . dang.”
Later that afternoon, McNeally and Puffer met at the bank. McNeally again
asked who was complaining and claims Puffer responded: “Well, Kristi Peterson
and another board member.” Puffer denies this statement. Redmond claims he and
Puffer spoke briefly that evening, and Puffer told him that her conversation with
McNeally had not gone well. Puffer denies this too.
The next day, a reporter contacted McNeally about her post. McNeally told
the reporter that Peterson and another school board member contacted the Bank to
have McNeally take the post down. The reporter talked to Peterson, who denied
contacting the Bank. Peterson also talked to Redmond. The two “mostly discussed”

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McNeally’s statement to the reporter, but also “other events” with McNeally—like
“screaming at West [Middle School]” and the “meltdown at Sweeney [Elementary].”
Peterson says that the two did not discuss contacting the Bank, while Redmond says
“it’s possible” they did.
That afternoon, Redmond called Puffer. He asked to meet with Puffer and
McNeally, but Puffer said that because it was an “employee matter” she preferred
that Redmond spoke to her first. The two agreed to meet at a coffee shop near the
Bank because “it was close to the time [McNeally] would be coming back [to the
Bank] from the high school.” Redmond told Puffer about McNeally’s statement to
the reporter and that, because of McNeally’s “erratic behavior incidents,” “numerous
complaints from teachers with the post,” and the false report, he would not allow
McNeally to work with students or at the Bank’s high school branch. Puffer asked
Redmond to “follow up with something in writing.”
Redmond “hastily” wrote:
Ms. Puffer:
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.
A copy of the post attributed to Ms. Mcnealy is below:
[screenshot of post]
It has also been reported to me that Tara Mcnealy has reached out to
some form of media and wrongly accused Kristi Peterson of contacting
HomeTown Bank regarding this matter.

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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 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 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.
Redmond says he wrote this after Puffer told him McNeally would be placed on
leave and investigated by the Bank.
Puffer returned to the Bank and called the Bank President and a Human
Resource representative. The three had a lengthy phone conversation about
McNeally. Puffer told them about McNeally’s post, her false report to the
newspaper, the incident at Sweeney Elementary, and what McNeally told her about
the conversation with Peterson in early September. Puffer also told them she was
waiting for a letter she “had requested” from Redmond banning McNeally from SPS
property. While the three were on the phone, Redmond sent the letter and Puffer
forwarded it to the other two. Redmond told Puffer that she could share the letter
with McNeally. Puffer then called McNeally, told her that she was suspended
without pay, and sent her the letter.
The next day, Redmond emailed the SPS School Board about McNeally. He
wrote that he “ha[d] done what [he] would do in any similar employee matter.” He
also “add[ed] that the first step in this particular situation was an attempt by the direct
supervisor and [himself] to allow [McNeally] to make some form of attempt to make
right [her] inappropriate actions. Instead . . . [she] reached out to a form of media
and other allies of various sorts.”
After suspending McNeally, the Bank received hundreds of harassing phone
calls. The Bank investigated McNeally and concluded that she had violated the
Bank’s standard of conduct and social media guidelines, could not perform job

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duties because she was banned from SPS, and improperly used her work time. She
was fired on October 12.
II.
We review the district court’s decision to grant summary judgment de novo.
Yassin v. Weyker, 39 F.4th 1086, 1089 (8th Cir. 2022). “Summary judgment is
appropriate when the evidence, viewed in the light most favorable to the nonmoving
party, shows no genuine [dispute] of material fact exists and the moving party is
entitled to judgment as a matter of law.” Id. (cleaned up); see Fed. R. Civ. P. 56(a).
“Summary judgment should not be granted if on the evidence a reasonable jury could
find for the nonmoving party.” Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112,
1116 (8th Cir. 1997) (citation omitted).
A. First Amendment Retaliation
1. Superintendent Redmond
Redmond argues that he is entitled to qualified immunity because McNeally
failed to show a First Amendment violation and—even if she did—the law is not
clearly established. See Joseph v. Wheeler, 144 F.4th 1111, 1113 (8th Cir. 2025)
(“[Qualified immunity] shields government officials from liability when their
conduct does not violate clearly established constitutional rights of which a
reasonable person would have known.” (citation omitted)).
Constitutional Violation
We first consider whether McNeally has the First Amendment rights of an
ordinary citizen or those of a government employee or contractor. In Pickering v.
Board of Education, 391 U.S. 563, 568 (1968), the Supreme Court held that a
government employee’s rights depend on the “balance between the interests of the
[employee], as a citizen, in commenting upon matters of public concern and the

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interest of the State, as an employer, in promoting the efficiency of the public
services it performs through its employees.” In Board of County Commissioners v.
Umbehr, 518 U.S. 668, 673 (1996), the Court extended Pickering to government
contractors and adjusted the balancing test “to weigh the government’s interests as
contractor rather than as employer.” The district court applied Pickering to
McNeally’s claim because it found she provided services to SPS that implicate
“heightened government interests.” But McNeally provided services to SPS in her
capacity as a bank employee, and there is no evidence to support a finding that the
Bank is a government contractor.
In both Pickering and Umbehr, “the government agreed to pay public moneys
to private individuals for services to be rendered, and therefore had a stronger
interest in restricting those individuals’ speech than in restricting the speech of the
public at large.” Wandering Dago, Inc. v. Destito, 879 F.3d 20, 38 (2d Cir. 2018).
“[O]ur cases consistently recognize that the government, when acting in its role as
employer, may interfere with its employees’” First Amendment rights. Int’l Ass’n
of Firefighters, Local No. 3808 v. City of Kansas City, 220 F.3d 969, 974 (8th Cir.
2000) (emphasis added); see also Heritage Constructors, Inc. v. City of Greenwood,
545 F.3d 599, 602 (8th Cir. 2008) (describing retaliation cases where “the
government[] w[as] not acting . . . as [an] employer[] or contractor[]” as
“inapposite”).
Destito provides guidance. There, the Second Circuit rejected the argument
that providing a vendor access to a government forum made the vendor a government
contractor. Destito, 879 F.3d at 38. SPS “provides . . . access to a forum—an issue
governed by forum doctrine, not Umbehr—” and “the only monetary exchange
between the [Bank] and [SPS] is . . . paid by the [Bank] to [SPS].” Id. So the Bank
is better described as a “private entit[y] that pay[s] to access public benefits and, in
using those benefits to their economic advantage, secondarily satisf[ies] a
government purpose.” Id. Categorizing the Bank as a “government contractor
would represent a considerable and . . . unwarranted expansion of Umbehr.” Id.
McNeally worked for the Bank, not the government.

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McNeally argues that Redmond retaliated against her because of her speech.
“To establish a First Amendment retaliation claim, [she] must show that ‘(1) [s]he
engaged in a protected activity, (2) the government official took adverse action
against [her] that would chill a person of ordinary firmness from continuing in the
activity, and (3) the adverse action was motivated at least in part by the exercise of
the protected activity.’” Rinne v. Camden County, 65 F.4th 378, 383 (8th Cir. 2023)
(quoting Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004)). As an ordinary
citizen, there is no dispute that McNeally engaged in protected speech.
McNeally argues that the SPS property ban was an adverse action that would
chill a person of ordinary firmness from continuing her political speech.
Government action that engages “‘the punitive machinery of government’ to impose
‘concrete consequences’ in retaliation for speaking out against the government”
chills speech, while “non-actionable retaliatory measures that produce only
‘embarrassment, humiliation and emotional distress’” do not. Id. at 384 (citations
omitted). We have held that “[a] prohibition on entering county property is a
concrete consequence that would objectively chill a person of ordinary firmness
from criticizing county commissioners.” Id. The same applies to a ban from public
school property.
Although the district court found that McNeally was banned from SPS
property only as a Bank employee, a jury could find otherwise. Redmond’s letter
creates a caveat for McNeally to be at her children’s schools “in the role of a parent,”
but it also says that she is banned from SPS property “in any capacity of the school
district and bank partnership” and that she “may not be present in any other part of
the school district, without [Redmond’s] express permission, until the investigation
is concluded.” An online article reported that SPS “clarified” the ban: “Should there
be a desire or need for additional activity as a parent, this is typically acceptable.
For example, a parent in this situation can certainly attend a school board meeting.”
McNeally admits she read the article but says she still did not “feel comfortable
being anywhere in those buildings” because she was under investigation, though she

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voted at the high school in November. But “[t]he ‘ordinary-firmness’ test is
objective . . . so the question is not simply whether the plaintiff [herself] was,” or
was not, “deterred.” Rinne, 65 F.4th at 384. McNeally has pointed to enough
evidence to allow a jury to decide “whether the ban would have chilled a person of
ordinary firmness from continuing to speak.” Id.
Finally, McNeally argues that a reasonable jury could find that Redmond’s
retaliatory motive “was a ‘but-for cause’ of the adverse action, ‘meaning that the
adverse action against the plaintiff would not have been taken absent the retaliatory
motive.’” Graham v. Barnette, 5 F.4th 872, 889 (8th Cir. 2021) (quoting Nieves v.
Bartlett, 587 U.S. 391, 399 (2019)). Redmond counters that McNeally’s “erratic
behavior” was the cause of his letter banning her from SPS property. Maybe, but
his letter focused on McNeally’s speech, calling it “very inappropriate and
demeaning” and suggesting the post would warrant “disciplinary action” if made by
an SPS employee. The parties also dispute whether McNeally falsely accused
Peterson of trying to get the Bank to take down the post. While the jury may believe
Redmond’s claim that he was not motivated by McNeally’s speech, we cannot say
this “question is so free from doubt as to justify taking it from the jury.” Peterson
v. Kopp, 754 F.3d 594, 603 (8th Cir. 2014) (citation omitted).
Clearly Established
The district court held “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.” But the extent of the ban is
disputed, and when it took effect it was clearly established that a government official
may not retaliate against a citizen for the exercise of her First Amendment rights.
Pendleton v. St. Louis County, 178 F.3d 1007, 1011 (8th Cir. 1999); see also Waddell
v. Forney, 108 F.3d 889, 894 (8th Cir. 1997) (considering a Fifth Amendment due
process claim and stating that since “1989, the right to be free from government
interference with an employment relation was clearly established” (citing Chernin

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v. Lyng, 874 F.2d 501 (8th Cir. 1989))). We have also held that a government official
may not ban someone from government property in retaliation for speech. Rinne,
65 F.4th at 385; see Hartman v. Moore, 547 U.S. 250, 256 (2006) (explaining that
while some official actions “might well be unexceptional if taken on other grounds,”
such adverse action cannot be taken in retaliation for speech). And when Redmond
allegedly conspired with the Bank, it was clearly established that a government
official could not engage in “conduct in furtherance of a conspiracy to retaliate
against Plaintiffs for exercising their First Amendment rights.” Pendleton, 178 F.3d
at 1011. So Redmond was “on notice” that his alleged retaliatory conduct was
unlawful. See Hope v. Pelzer, 536 U.S. 730, 739 (2002).
2. Puffer and the Bank
Generally, only state actors may be held liable under § 1983, but when a
“private actor ‘is a willful participant in joint activity with the State or its agents’ in
denying a plaintiff’s constitutional rights,” the private actor may be liable. Dossett
v. First State Bank, 399 F.3d 940, 947 (8th Cir. 2005) (quoting Adickes v. S.H. Kress
& Co., 398 U.S. 144, 152 (1970)). To survive a motion for summary judgment,
McNeally had to produce evidence from which reasonable jurors could conclude
that “there was a mutual understanding, or meeting of the minds between the [Bank]
and [SPS]” to retaliate against McNeally for her protected speech. Mershon v.
Beasley, 994 F.2d 449, 451 (8th Cir. 1993); see also Dennis v. Sparks, 449 U.S. 24,
27–28 (1980) (“Private persons, jointly engaged with state officials in the challenged
action, are acting . . . ‘under color’ of law for purposes of § 1983 actions.”).
The district court held there was no evidence that “Redmond and Puffer
hatched a plan to retaliate against [McNeally]” or that “anyone from [SPS] asked the
Bank Defendants to suspend and later terminate McNeally.” But there is at least
circumstantial evidence that Redmond pushed to have McNeally disciplined or that
Puffer acted together with Redmond to retaliate against McNeally for her social
media post. The two were in close communication from the time Redmond told
Puffer about the post at lunch. Puffer then asked McNeally to take down the post

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because the school was upset, later telling Redmond that her conversation with
McNeally did not go well. During their coffeeshop conversation the next day,
Redmond told Puffer that he would not allow McNeally to work with students or at
the Bank’s high school branch, because of her behavior, complaints about her post,
and the false report. And Puffer told him that she planned to place McNeally on
leave. McNeally emailed the ban to Puffer that afternoon, at her request. The ban
lasted until the bank and the school completed their investigations. A jury could find
that the frequent communication between Redmond and Puffer, including evidence
of coordination in the decisions to ban McNeally and place her on leave, shows a
mutual understanding to retaliate against McNeally for her protected speech. See
Dean v. County of Gage, 807 F.3d 931, 940 (8th Cir. 2015) (frequent communication
is evidence of meeting of the minds); Ahern Rentals, Inc. v. EquipmentShare.com,
Inc., 59 F.4th 948, 957 (8th Cir. 2023) (coordination between two parties can support
meeting of the minds).
3. Peterson
McNeally argues that Peterson can be held liable for the retaliatory actions
because of Peterson’s involvement in McNeally’s termination. McNeally must
show Peterson’s “personal involvement in the alleged violation.” Molina v. City of
St. Louis, 59 F.4th 334, 344 (8th Cir. 2023) (citation omitted). Peterson “cannot be
held liable under section 1983 for the wrongdoing of others.” Beard v. Falkenrath,
97 F.4th 1109, 1122 (8th Cir. 2024).
Peterson admits she was upset by McNeally’s post but denies talking to the
Bank after the media reached out. Redmond does not recall whether the two
discussed contacting the Bank but said “it’s possible.” “[N]ot recall[ing] an event
does not itself create a question of material fact about whether the event did, in fact,
occur.” To v. US Bancorp, 651 F.3d 888, 892 n.2 (8th Cir. 2011). That Peterson
and Redmond discussed the post in the middle of the communications between
Redmond and Puffer is not sufficient to show that Peterson took action against
McNeally.

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4. SPS
McNeally argues SPS may be liable for the retaliation based on SPS’s custom,
policy, or practice. See Monell v. N.Y. Dep’t of Soc. Servs., 436 U.S. 658, 690–92
(1978). We disagree. Custom requires evidence of “a continuing, widespread, and
persistent pattern of unconstitutional misconduct,” which McNeally has not
produced. Bolderson v. City of Wentzville, 840 F.3d 982, 986 (8th Cir. 2016). And
though “‘an unconstitutional government policy could be inferred from a single
decision taken by the highest officials responsible for setting policy in that area of
the government’s business’ . . . ‘[m]unicipal liability attaches only where the
decisionmaker possesses final authority to establish municipal policy with respect to
the action ordered.’” Davison v. City of Minneapolis, 490 F.3d 648, 659 (8th Cir.
2007) (citations omitted) (plurality opinion). Redmond, as superintendent, lacks
final policymaking authority. See Minn. Stat. § 123B.143 (superintendent “shall be
an ex officio nonvoting member of the school board”); Minnesota Educ. Ass’n v.
Bennett, 321 N.W.2d 395, 398 (Minn. 1982) (collecting caselaw supporting the
“holding that a superintendent of schools is not a part of the school district’s
governing body”); Springdale Educ. Ass’n v. Springdale Sch. Dist., 133 F.3d 649,
652 (8th Cir. 1998) (“Whether a person is an authorized policymaker for purposes
of assigning municipal liability is a question of state law.”).
B. Tortious Interference
McNeally also pleaded that Redmond tortiously interfered with her
employment at the Bank. Tortious interference with a contract requires “(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.” Sysdyne Corp. v. Rousslang, 860 N.W.2d 347, 351 (Minn. 2015)
(citation omitted). The parties dispute the intentional procurement element and
whether Redmond is entitled to official immunity.

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To show intentional procurement McNeally “must prove that [Redmond]
caused the [Bank] to breach its contract.” Qwest Commc’ns Co., LLC v. Free
Conferencing Corp., 905 F.3d 1068, 1074 (8th Cir. 2018). Whether Redmond’s
retaliatory motive was the but-for cause of the Bank’s alleged breach of contract in
firing McNeally is a genuine dispute of fact.
Redmond claims official immunity, but he is not entitled to it. Under
Minnesota’s official immunity doctrine, “public officials performing such
discretionary duties generally have immunity except when they are ‘guilty of a
willful or malicious wrong.’” Jepsen v. City of Pope, 966 N.W.2d 472, 485 (Minn.
2021) (citation omitted). An official violating “clearly established” law commits a
willful or malicious wrong, thus losing his official immunity. See Anderson v. Anoka
Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 662 (Minn. 2004).
III.
We affirm the grant of summary judgment in favor of Peterson and SPS. We
reverse the grant of summary judgment on the First Amendment claims against
Puffer, the Bank, and Redmond and the state law claim against Redmond. The case
is remanded for proceedings consistent with this opinion.
KELLY, Circuit Judge, concurring, and concurring in the judgment.
In my view, the proper framework for evaluating McNeally’s First
Amendment claims against defendants is set forth in Pickering v. Bd. of Educ.
because the relationship between SPS and McNeally is much closer to an employer-
to-employee relationship than it is a sovereign-to-citizen relationship. 391 U.S. 563,
568 (1968); see also L.L. Nelson Enters., Inc. v. County of St. Louis, 673 F.3d 799,
808 (8th Cir. 2012). For this reason, while I concur in Parts II.A.3 and A.4, and II.B.
of the court’s opinion, I concur only in the judgment as to Parts II.A.1-2.
“[A] governmental employer may impose certain restraints on the speech of
its employees, restraints that would be unconstitutional if applied to the general

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public.” City of San Diego v. Roe, 543 U.S. 77, 80 (2004). That is so because “the
State’s interests as an employer in regulating the speech of its employees ‘differ
significantly from those it possesses in connection with regulation of the speech of
the citizenry in general.’” Connick v. Myers, 461 U.S. 138, 140 (1983) (quoting
Pickering, 391 U.S. at 568). To accommodate the government’s interests as an
employer, Pickering instructs us to balance these interests with the individual’s free
speech interests. See 391 U.S. at 568–73; see also Anzaldua v. Ne. Ambulance and
Fire Prot. Dist., 793 F.3d 822, 835 (8th Cir. 2015) (listing the “six interrelated
factors” relevant to Pickering’s balancing inquiry).
Pickering’s balancing test is not limited to public employees. See, e.g., Bd. of
Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 678–79 (1996) (applying Pickering to
government contractor); Smith v. Cleburne Cnty. Hosp., 870 F.2d 1375, 1381 (8th
Cir. 1989) (applying Pickering to independent contractor of hospital because
“[w]hile there [was] not a direct salaried employment relationship, there is an
association between the independent contractor doctor and the Hospital that have
similarities to that of an employer-employee relationship”). Instead, in determining
whether Pickering applies, we have “distinguished between the government’s role
as employer or contractor and the government’s role as sovereign.” L.L. Nelson
Enters., Inc., 673 F.3d at 808; see also Riley’s Am. Heritage Farms v. Elsasser, 32
F.4th 707, 720–21 (9th Cir. 2022) (characterizing government action in its role as
licensor as sovereign action).
Here, McNeally’s relationship with SPS “implicates governmental interests
similar to those involved in the public employment context.” See Kinney v. Weaver,
367 F.3d 337, 360–61 (5th Cir. 2004) (applying Pickering to police instructors
because “[l]aw enforcement agencies have a legitimate interest in exercising
discretion over the choice of the instructors who train the officers who will, in turn,
carry out the agencies’ public duties”) (quoting Pickering, 391 U.S. at 568); Riley’s
Am. Heritage Farms, 32 F.4th at 722 (applying Pickering to field trip venue given
school district’s interest in “ensuring the students’ safety and maintaining the School
District’s intended curricular design for the trips”); Clairmont v. Sound Mental
Health, 632 F.3d 1091, 1102 (9th Cir. 2011) (applying Pickering to domestic

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violence counselor given probation office’s interest in ensuring treatment was
properly provided to court-ordered participants).
SPS and McNeally’s direct employer, the Bank, entered into a Naming Rights
Agreement in which the Bank promised to provide $300,000 worth of resources to
SPS over five years, including externship and internship experiences for students. In
exchange, the Bank received the exclusive right to name the project the “HomeTown
Bank Academy of Business & Entrepreneurship.” McNeally’s role at SPS was not
simply that of a personal banker at the school. Instead, she was responsible for
supervising and evaluating student interns who received class credit for participating
in the program. McNeally worked on efforts related to the school bank branch five
days a week for a total of 12-15 hours—at least three days at the school branch,
which included intern supervision—and two days a week at the main branch, where
the interns would travel to work on financial literacy curricula. McNeally consulted
with two teachers to ensure the students would receive academic credit for
participation, and the interns and McNeally co-produced financial literacy
instructional videos for elementary school students. During the summer of 2021,
McNeally taught financial literacy classes to every student enrolled in summer
school in the district—elementary, middle, and high school—which Puffer estimated
included about four hundred students. In this way, SPS “relied on [McNeally] to
provide educational services for public school students” and had an interest in
“ensuring the students’ safety and maintaining [SPS]’s intended curricular design
for” its relationship with the Bank. Riley’s Am. Heritage Farms, 32 F.4th at 722
(applying Pickering to private field trip company).
The Second Circuit’s opinion in Wandering Dago, Inc. v. Destito does not
change the result. 879 F.3d 20, 38 (2d Cir. 2018). There, a food truck was denied a
vending permit at a summer farmers market because government officials found the
name of the food truck offensive. Destito, 879 F.3d at 28. The court applied a forum
analysis, concluding that the food vendors were not government contractors, but
instead “private entities that pay to access public benefits and, in using those benefits
to their economic advantage, secondarily satisfy a government purpose.” Id. at 38.
McNeally, in contrast, directly engaged with students in a public school as an

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educator. The analogy to one of many food vendors who applied for permission to
operate its food truck on public grounds is inapposite, if only because it fails to
account for the role McNeally played in carrying out a core governmental function
at the school.
True, the Destito court considered the fact that the only exchange of money
was a fee the vendors paid to the government agency. Id. But that fact was by no
means dispositive to the court’s Pickering analysis. See id. In any event, the
circumstances here are not the same. In this case, the Bank agreed to provide the
school with valuable “in-kind and/or donations” and, in exchange, it was allowed to
open a branch inside the school, where students and staff could open and maintain
personal accounts. But as part of the Naming Rights Agreement, the Bank also
agreed to take on the role of educator to SPS’s students in the form of student
“development programs” and “externships and internships,” and it tasked McNeally
with this responsibility. The education of students is a core governmental obligation,
and SPS relied on McNeally to meet this obligation with respect to the credits the
students received for participation in the banking program. See Waters v. Churchill,
511 U.S. 661, 675 (1994) (“The government’s interest in achieving its goals as
effectively and efficiently as possible is elevated from a relatively subordinate
interest when it acts as sovereign to a significant one when it acts as employer.”)
The Supreme Court has cautioned against taking a formalistic approach in
determining when Pickering applies. See Umbehr, 518 U.S. at 679 (“Determining
constitutional claims on the basis of such formal distinctions, which can be
manipulated largely at the will of the government agencies concerned, is an
enterprise that we have consistently eschewed.” (citation omitted)). To conclude that
SPS was acting in its sovereign capacity here ignores the significant benefit SPS
received under the contract at issue that strikes at the core of the government’s
interests—curricular development and instruction to its students. See Umbehr, 518
U.S. at 676 (“The government cannot restrict the speech of the public at large just in
the name of efficiency. But where the government is employing someone for the
very purpose of effectively achieving its goals, such restrictions may well be
appropriate.” (quoting Waters, 511 U.S. at 675)). Given her role at the school,

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McNeally’s relationship with SPS was more like that of an employee than a citizen
or licensee, and Pickering applies.
Under Pickering, SPS has the burden to show an adverse effect on the
efficiency of its operations.1 See Anzaldua, 793 F.3d at 833; but see Germann v.
City of Kansas City, 776 F.2d 761, 765 (8th Cir. 1985) (“It is not necessary ‘for an
employer to allow events to unfold to the extent that the disruption of the office and
the destruction of working relationships is manifest before taking action.’” (quoting
Connick, 461 U.S. at 152)). SPS expressed legitimate concerns and predictions of
harm that would flow from McNeally’s Facebook post, including complaints made
to Redmond by teachers at the school. SPS has proffered sufficient evidence of
adverse impact to trigger Pickering balancing. See Anzaldua,793 F.3d at 833–35.
On this record, however, the Pickering balancing test is ultimately for a jury
to evaluate. See Bailey v. Dep’t of Elementary & Secondary Educ., 451 F.3d 514,
518 n.2 (8th Cir. 2006) (explaining that the Pickering balancing test is “a question
of law,” but “its underlying factual questions should be [] submitted to the jury”).
And, because Puffer and the Bank’s liability rises and falls with the
Pickering balancing as applied to Redmond, I agree that reversal of summary
judgment as to Puffer and the Bank also is proper.
______________________________
1 I would assume, without deciding, that at least some of McNeally’s post is
on a matter of public concern. See Anzaldua, 793 F.3d at 833 (citing Waters, 511
U.S. at 680) (doing same).

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