September 5, 2019
from the United States District Court for the Northern
District of Indiana, South Bend Division. No. 3:16-cv-257-JD
- Jon E. DeGuilio, Judge.
Sykes, Hamilton, and Scudder, Circuit Judges.
HAMILTON, CIRCUIT JUDGE.
Lisa Ulrey served as the assistant principal of the
Manchester Junior-Senior High School until November 4, 2014,
when she resigned during a meeting with William Reichhart,
the school district's superintendent. Ulrey brings two
claims in this suit under 42 U.S.C. § 1983 against
Reichhart and the school board. First, she claims that
Reichhart violated her rights under the First
Amendment by retaliating against her for her speech about a
student discipline issue. Second, she contends that the
defendants violated her Fourteenth Amendment rights by
coercing her to resign, depriving her of her property
interest in her job without due process of law. The district
court granted summary judgment to the defendants on both
claims. We affirm. Undisputed facts show that Ulrey spoke
about the discipline issue in her capacity as an employee, so
the First Amendment did not protect her speech. Ulrey also
failed to present evidence sufficient to support a finding
that her resignation was involuntary.
Claim for First Amendment Retaliation
do not surrender their First Amendment rights by accepting
public employment, but legal doctrine in this field tries to
maintain a careful balance between the interests of the
employee as a citizen and the interests of the
employer-government in serving the public. Lane v.
Franks, 573 U.S. 228, 231 (2014), citing Pickering
v. Board of Education, 391 U.S. 563, 568 (1968). The
First Amendment claim here arises from a disagreement between
plaintiff Ulrey and defendant Reichhart concerning student
discipline. Because we review a grant of summary judgment
against Ulrey, we recount facts in the light reasonably most
favorable to her. See Healy v. City of Chicago, 450
F.3d 732, 738 (7th Cir. 2006).
August 2014, Superintendent Reichhart granted an adult
student permission to possess cigarettes (though not to smoke
them) on school grounds. Ulrey learned of that decision and
disagreed with it. Without approaching Reichhart first, Ulrey
called the president of the school board, Sally Krouse.
Krouse in turn emailed Reichhart to express her concern about
his decision. Reichhart then rebuked Ulrey for going over his
head, threatening to reprimand her formally if she did not
apologize. She did apologize. She claims in this lawsuit,
however, that Reichhart forced her to resign three months
later to retaliate against her for her call to Krouse.
maintaining the critical balance under the Pickering
and Lane line of cases, the threshold question in a
public employee's First Amendment retaliation suit is
whether the employee's speech was constitutionally
protected. E.g., Swetlik v. Crawford, 738 F.3d 818,
825 (7th Cir. 2013). If Ulrey's call to Krouse had been
protected speech, then we would need to decide whether Ulrey
presented evidence that her call motivated Reichhart to
inflict on her deprivations likely to deter speech.
not need to reach those issues, however, because Ulrey's
speech was unprotected as a matter of law. See Con-nick
v. Myers, 461 U.S. 138, 148 n.7 (1983) (noting that the
"inquiry into the protected status of speech is one of
law, not fact"). Ulrey's claim fails at this first
step. The undisputed facts show that she spoke to Krouse as
an employee, not a private citizen. "In order for a
public employee to raise a successful First Amendment claim
for her employer's restriction of her speech, the speech
must be in her capacity as a private citizen and not as an
employee." McArdle v. Peoria School Dist. No.
150, 705 F.3d 751, 754 (7th Cir. 2013). The test for
distinguishing private speech from employee speech is whether
the employees speak "pursuant to their official
duties." Spiegla v. Hull, 481 F.3d 961, 965
(7th Cir. 2007), quoting Garcetti v. Ce-ballos, 547
U.S. 410, 421 (2006).
argues that reporting the superintendent's alleged
misconduct or violation of district policy on tobacco fell
outside her official duties. Since the Supreme Court decided
Garcetti, however, we have repeatedly rejected such
claims for a whistleblower carve-out from the category of
unprotected employee speech. In Garcetti, the
employee wrote a memorandum detailing governmental
misconduct. The Supreme Court held that his speech was
unprotected because the memorandum "was written pursuant
to [his] official duties." 547 U.S. at 421.
Garcetti suggested that "legislative
enactments" such as "whistle-blower protection laws
and labor codes/' rather than the First Amendment, ought
to protect employees obliged to report official misconduct as
part of their job. Id. at 425.
after Garcetti was decided, we applied it to a case
like Ulrey's. In Spiegla, a prison guard
stationed at the main gate reported her supervisor for
letting a vehicle pass without the required search for
contraband. See 481 F.3d at 962-63. We held that the guard
"spoke as an employee, not a citizen, because ensuring
compliance with prison security policy was part of what she
was employed to do." Id. at 966. The fact that
her statements "highlighted potential misconduct by
prison officers" did not affect the analysis under
Garcetti. Id. at 967.
district court recognized, we have applied this reasoning in
many different employment contexts. See, e.g., Ku-biak v.
City of Chicago,810 F.3d 476, 481 (7th Cir. 2016)
(police officer reporting misconduct of co-worker);
McArdle, 705 F.3d at 753 (school principal reporting
misconduct of district academic officer); Renken v.
Gregory,541 F.3d 769, 772 (7th Cir. 2008) (professor
reporting misconduct of dean); Vose v. Kliment, 506
F.3d 565, 570 (7th Cir. 2007) (police ...