                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-1849
                                    ___________

David Somers,                            *
                                         *
      Plaintiff - Appellant,             *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
City of Minneapolis, et al.,             *
                                         *
      Defendants - Appellees.            *
                                    ___________

                               Submitted: December 15, 2000

                                   Filed: March 29, 2001
                                    ___________

Before LOKEN and MAGILL, Circuit Judges, and BATTEY,* District Judge.
                            ___________

LOKEN, Circuit Judge.

       The City of Minneapolis terminated seasonal laborer David Somers for failing
to report to work following the 1997 spring call-back. Somers filed this action against
the City and several of its employees, asserting a claim under 42 U.S.C. § 1983 that the
City violated his right to procedural due process by denying him a post-termination
hearing. When terminated, Somers had been a City employee for more than six months
but less than one year, and was still a probationary employee under the applicable

      *
       The HONORABLE RICHARD H. BATTEY, United States District Judge for
the District of South Dakota, sitting by designation.
collective bargaining agreement. Probationary employees lack a property interest in
continued employment entitling them to procedural due process protection under the
Fourteenth Amendment. But Somers had worked beyond the six-month probationary
period specified in the Minneapolis City Charter. Concluding the collective bargaining
agreement is controlling, the district court1 granted summary judgment dismissing
Somers’s § 1983 claim. The court also dismissed his additional claims for breach of
contract, defamation, and violation of the Americans with Disabilities Act (“ADA”)
and the Minnesota Human Rights Act (“MHRA”). Somers appeals. We affirm.

                            I. § 1983 Due Process Claim.

        Somers worked as a seasonal laborer from April to November 1996. On April
2, 1997, the City mailed a notice directing him to return to work on April 7. Somers
failed to report, later claiming he did not receive the return-to-work notice. In mid-
April, he called the City to ask why he had not been called back to work. Over the
next few weeks, Somers spoke several times with a human resources consultant and
met once with a City management analyst for the Department of Public Works. In early
June, he received notice of a hearing to review alleged violations of Civil Service Rules
for failing to report to work and for taking an absence without leave. Somers attended
the informal hearing and was subsequently terminated for these violations. He
requested a post-termination hearing. The City’s Civil Service Commission denied the
request, citing its Rule 11.06 B: “Employees who have not completed their
probationary period have no appeal rights.” Somers then filed this § 1983 action.

       To succeed on a procedural due process claim, Somers must establish that he had
a constitutionally protected property interest, that is, a “legitimate claim of entitlement”
to continued employment by the City. Board of Regents v. Roth, 408 U.S. 564, 577


       1
        The HONORABLE RICHARD H. KYLE, United States District Judge for the
District of Minnesota.

                                            -2-
(1972). If a public employee may not be terminated except for good cause, that is a
property interest entitled to due process protection. See Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 538-39 (1985). On the other hand, an at-will probationary
employee does not have a protected property interest in continued public employment.
See Tautfest v. City of Lincoln, 742 F.2d 477, 480 (8th Cir. 1984).

       Chapter 19 of the Minneapolis City Charter established the Civil Service
Commission. Section 11 of chapter 19 provides, “No officer or employee . . . after six
months continuous employment shall be removed or discharged except for cause, upon
written charges and after an appropriate opportunity to be heard.” Somers relies upon
this Charter provision in arguing he had a property interest when terminated.

      As a seasonal laborer, Somers was within the bargaining unit of City Employees
Local Union No. 363. At the time of termination, the collective bargaining agreement
between Local 363 and the City provided:

      Section 5.01 – Just Cause. Disciplinary action may be imposed upon an
      employee who has satisfactorily completed the initial probationary period
      only for just cause.

      Section 7.07 – Probationary Periods. All initial probationary periods shall
      normally be twelve (12) months in duration . . . . An employee may be
      removed from the position at the discretion of the appointing authority.
      Such removal shall not be subject to the grievance/arbitration provisions
      of this Agreement.2

The City argues this agreement superseded chapter 19, section 11, of the City Charter,
extending Somers’s probationary period to one year. Thus, as the district court



      2
      Somers testified that Local 363 declined to represent him at the June 1997
informal hearing because he was still a probationary employee.

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recognized, the property interest issue turns on the relationship between the City
Charter and the collective bargaining agreement under Minnesota law.

       In 1971, the Minnesota Legislature enacted the Public Employment Labor
Relations Act (“PELRA”), now codified at MINN. STAT. ch. 179A. Its purpose was to
grant public employees the right to organize and to bargain collectively “subject
however, to the paramount right of the citizens of this state to keep inviolate the
guarantees for their health, education, safety and welfare.” 1971 Minn. Laws Extra
Sess. ch. 33, § 1. As amended in 1973, § 6 of PELRA provided in part:

            Subd. 2. A public employer has an obligation to meet and
      negotiate in good faith with the exclusive representative of the public
      employees in an appropriate unit regarding grievance procedures and the
      terms and conditions of employment . . . .

              Subd. 5. Any provision of any contract . . . which . . . would be in
      violation of . . . a municipal home rule charter or ordinance or resolution
      adopted pursuant thereto . . . provided such . . . home rule charter . . . is
      not in conflict with sections 179.61 to 179.66, shall be returned to the
      arbitrator for an amendment to make the provision consistent with the
      . . . charter . . . .

MINN. STAT. § 179.66 (1982).3 The Supreme Court of Minnesota construed these
provisions in International Brotherhood of Teamsters v. City of Minneapolis, 225
N.W.2d 254, 258 (Minn. 1975), and concluded that, “where a conflict arises between
a provision in a contract required by [PELRA] and a provision of a home rule charter
the legislature intended to give priority to the charter provision.” Under this version
of PELRA, Somers’s claim to a property interest under the City Charter would
doubtless prevail.


      3
      The 1973 amendment added the “not in conflict” proviso to subdivision 5. See
1973 Minn. Laws ch. 635, § 16.

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     However, in 1983 the Legislature modified the priority it had formerly given to
home rule charters by adding the following paragraph to § 179.66, subd. 2:

             The public employer’s duty under this subdivision [to meet and
      negotiate with public employee unions] exists notwithstanding contrary
      provisions in a municipal charter, ordinance, or resolution. A provision
      of a municipal charter, ordinance, or resolution which limits or restricts
      a public employer from negotiating or from entering into binding contracts
      with exclusive representatives is superseded by this subdivision.

1983 Minn. Laws ch. 364, § 3. In Gallagher v. City of Minneapolis, 364 N.W.2d 467,
470 (Minn. App. 1985), the Minnesota Court of Appeals rejected a suit by the
Minneapolis Civil Service Commission to declare a collective bargaining agreement
void as in conflict with the City Charter. The court concluded the 1983 amendment of
§ 179.66, subd. 2, superseded the conflicting portion of § 179.66, subd. 5.

      In 1984, the Legislature recodified PELRA in Chapter 179A, intending only “to
eliminate obsolete and redundant language . . . and make the law easier to read and
understand.” 1984 Minn. Laws ch. 462, § 1. Though slightly reworded, the relevant
provisions of former § 179.66, subd. 2 and 5, were retained in the new statute:

      MINN. STAT. § 179A.07, subd. 2(a). A provision of a municipal charter,
      ordinance, or resolution which limits or restricts a public employer from
      negotiating or from entering into binding contracts with exclusive
      representatives is superseded by this subdivision.

      MINN. STAT. § 179A.20, subd. 2(2). No provision of a contract [under
      PELRA] shall be in conflict with . . . rules promulgated under . . .
      municipal charters . . . provided that the . . . charters . . . are consistent
      with this chapter.




                                           -5-
        Because these two provisions were part of the same recodification, they should
be read, if possible, as in harmony with each other. The district court concluded that
a Charter provision which “limits or restricts” the City from negotiating collective
bargaining agreements regarding “grievance procedures and the terms and conditions
of employment” -- the scope of the duty to bargain imposed by § 179A.07, subd. 2 --
is not “consistent with this chapter” within the meaning of § 179A.20, subd. 2(2). We
agree with this sensible reconciliation of the two statutes. As the Minnesota Supreme
Court noted in Teamsters, 225 N.W.2d at 257, “[t]he phrase ‘terms and conditions of
employment’ appears to have been borrowed from the National Labor Relations Act.”
Under federal labor law, terms and conditions of employment are mandatory subjects
of collective bargaining. See 29 U.S.C. § 158(d); Fibreboard Paper Prods. Corp. v.
NLRB, 379 U.S. 203, 209-15 (1964). Enforcing a Charter provision that is inconsistent
with a collectively bargained term and condition of employment would interfere with
the City’s ability to fulfill its bargaining obligations under PELRA. On the other hand,
Charter provisions dealing with other subjects, such as the “matters of inherent
managerial policy” referred to in § 179A.07, subd. 1, do not conflict with the core
purposes of collective bargaining and therefore override inconsistent PELRA contract
provisions under § 179A.20, subd. 2(2).4

       Construing the relevant PELRA provisions in this fashion, it is apparent that
Somers had no property interest for due process purposes. Whether an employee may
be terminated without cause is a mandatory subject of collective bargaining. The City
and Local 363 negotiated a collective bargaining agreement in which employees gain
the right not to be terminated without cause after a one-year probationary period. The




      4
       Lunde v. Independent School District No. 256, 543 N.W.2d 703, 706 (Minn.
App. 1996), relied upon by Somers, is not to the contrary. That decision applied the
unconditional language of § 179A.20, subd. 2(1), whereas we deal in this case with the
conditional “consistent with” proviso in § 179A.20, subd. 2(2).

                                          -6-
Charter’s grant of that right after a six-month probationary period conflicts with the
collectively bargained provision and is therefore inconsistent with PELRA.

       Somers argues there is no conflict because the collective bargaining agreement
does not expressly preclude terminated employees from seeking a hearing before the
Civil Service Commission under the City Charter. But the issue, for due process
purposes, is not what procedural remedy Somers was entitled to pursue under state law.
The issue is whether he had the substantive right not to be terminated without cause
because he was no longer a probationary employee. That is a mandatory subject of
collective bargaining. It was expressly addressed in the collective bargaining
agreement, and therefore the inconsistent City Charter provision must give way.5
Under the bargaining agreement, Somers was a probationary employee at the time of
termination, and the district court properly granted the City summary judgment
dismissing his § 1983 procedural due process claim.6

                          II. ADA and MHRA Claims.

     In February 1997, during the winter layoff for seasonal workers, Somers
underwent knee surgery. In March, he discussed possible job openings in the City’s


      5
       Somers suggests it was illogical for the union to bargain away this favorable
Charter provision. We suspect there are good reasons for negotiating a longer
probationary period for some types of jobs, but in any event it was the union’s
prerogative to do so.
      6
        For the same reasons, the district court correctly granted summary judgment
dismissing Somers’s breach of contract claim. His employment was governed by the
collective bargaining agreement. Both the union and the Civil Service Commission
properly applied that contract in concluding Somers was an at-will probationary
employee who could be terminated without a Civil Service Commission hearing. See
Civil Service Commission Rule 1.03 (“[a]greements reached under PELRA . . .
supersede Civil Service Commission Rules whenever overlap exists”).

                                         -7-
Sanitation Department with a Department representative and was told he would not be
listed for that strenuous work “because we don’t want you to blow your knee out.” In
April, Somers reported his knee surgery to the Department of Public Works in
discussing his return to work as a seasonal laborer. He was asked to submit a medical
release and did so. At the June 6 informal hearing, he submitted an updated release that
cleared him to return to work with no restrictions. In this action, Somers claims the
City violated the ADA and the MHRA by denying him a job with the Department of
Sanitation, refusing to call him back to work, and terminating him because of his real
or perceived disability. Under the ADA, Somers is disabled if he has “a physical or
mental impairment that substantially limits one or more of the major life activities of
such individual” or is “regarded as having such an impairment.” 42 U.S.C. § 12102(2).
Claims under the MHRA are analyzed the same as claims under the ADA. Treanor v.
MCI Telecomm. Corp., 200 F.3d 570, 574 (8th Cir. 2000).

       Like the district court, we conclude these claims are without merit. It is
undisputed that the Sanitation Department representative regarded Somers as having
a temporary physical impairment that precluded him from jobs requiring the lifting of
large compost bins. But, “an ADA plaintiff must do more than allege that he is
regarded as having an impairment which prevents him from working at a particular
job.” Shipley v. City of Univ. City, 195 F.3d 1020, 1023 (8th Cir. 1999); see Sutton
v. United Air Lines, Inc., 527 U.S. 471, 493 (1999). The Department of Public Works
representative simply required Somers to submit a medical release and be cleared by
the City’s physician, a prudent requirement the City imposes on all employees who
undergo surgery before they return to work. There is no evidence the Department of
Public Works regarded Somers as disabled and not a shred of evidence that his knee
surgery had anything to do with his termination as a seasonal laborer.




                                          -8-
                               III. Defamation Claim.

        Finally, Somers claims that the reasons provided by defendants in the June 3
hearing notice and subsequent termination decision were false and defamatory. The
district court granted summary judgment dismissing this claim on the ground that the
City and its employees are entitled to a qualified privilege for communications
concerning the reasons for discharge. We agree. To defeat the defense of qualified
privilege, Somers must show that defendants acted with actual malice -- “ill will and
improper motives, or causelessly and wantonly for the purpose of injuring the plaintiff.”
Ewald v. Wal-Mart Stores, Inc., 139 F.3d 619, 623 (8th Cir. 1998) (quotations
omitted). As in Ewald, summary judgment is appropriate because the City conducted
an adequate investigation before giving Somers notice of Civil Service Rules violations,
and because there is no evidence that any defendant acted out of ill will, improper
motive, or wantonly for the purpose of injuring him. Somers believed the City should
have excused his failure to return to work because he never received the return-to-work
notice. The City disagreed, either crediting its own records showing the notice was
properly mailed or concluding Somers should have taken the initiative to learn when
to report. This disagreement is not an adequate basis for a claim of defamation.

      The judgment of the district court is affirmed.

      A true copy.

             Attest:

                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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