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Ulrey v. Reichhart

United States Court of Appeals, Seventh Circuit

October 18, 2019

Lisa Ulrey, Plaintiff-Appellant,
v.
William Reichhart and School Board of Manchester Community Schools, Defendants-Appellees.

          Argued September 5, 2019

          Appeal 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.

          Before Sykes, Hamilton, and Scudder, Circuit Judges.

          HAMILTON, CIRCUIT JUDGE.

         Plaintiff 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.

         I. Claim for First Amendment Retaliation

         Citizens 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).

         In 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.

         In 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. Id.

         We do 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).

         Ulrey 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.

         Shortly 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.

         As the 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 ...


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