9th Circuit Vindicates School District in Employment Retaliation Lawsuit

Patterson Buchanan has won a victory in the U.S. Court of Appeals for the Ninth Circuit vindicating the actions taken by the Edmonds School District in Washington as it sought to balance a public employee's right to free speech with a public employer's need for the employee to make clear when he is speaking not in his official capacity but only as a private citizen.

The dispute arose from the publication in the Edmonds Beacon of a letter from the employee in which he referred to members of the community as "buffoons." The district instructed the employee to make clear in future personal communications that he was not speaking for the district and to refrain from divulging information to which he had privileged access as a district employee, as well as to obtain approval of his official public communications on the district's behalf.

The employee later informed the district that he considered himself constructively discharged. He left his job and then filed a lawsuit claiming he had been retaliated against for exercising his First Amendment rights. Patterson Buchanan's attorneys, including Duncan Fobes and Sarah Mack, argued that none of the district's actions were retaliatory and that the district had consistently emphasized that it respected the employee's right to speak out as a private citizen. The Honorable Judge John C. Coughenour of the U.S. District Court for the Western District of Washington granted the school district's motion for summary judgment, finding that the employee "chose to create and exacerbate conflict."

In an unpublished, three-page memorandum opinion, a three-judge panel of the Ninth Circuit on May 11, 2010, swiftly and unanimously affirmed the district court's ruling. The appeals court found that the employee had raised no genuine issue of material fact as to his claims. Even viewing the facts in the light most favorable to him, the court concluded the school district's actions were not reasonably likely to have deterred him from engaging in protected speech, and the evidence showed he was not wrongfully discharged at all but, to the contrary, had voluntarily resigned.

The case is Zandberg v. Edmonds School District.