Lisa Ulrey v. William Reichhart

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 19-1221 LISA ULREY, Plaintiff-Appellant, v.

WILLIAM REICHHART and SCHOOL BOARD OF MANCHESTER COMMUNITY SCHOOLS, Defendants-Appellees. ____________________

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. ____________________

ARGUED SEPTEMBER 5, 2019 — DECIDED OCTOBER 18, 2019 ____________________

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 superin- tendent. 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 2 No. 19-1221

Amendment by retaliating against her for her speech about a student discipline issue. Second, she contends that the de- fendants violated her Fourteenth Amendment rights by coerc- ing 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 af- firm. Undisputed facts show that Ulrey spoke about the dis- cipline 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 res- ignation 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-gov- ernment 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 disa- greement 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 Chi- cago, 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 deci- sion 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 con- cern about his decision. Reichhart then rebuked Ulrey for No. 19-1221 3

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 em- ployee’s First Amendment retaliation suit is whether the em- ployee’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 moti- vated 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 “in- quiry 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 pri- vate citizen. “In order for a public employee to raise a success- ful 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 distin- guishing 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 out- side her official duties. Since the Supreme Court decided 4 No. 19-1221

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 memoran- dum detailing governmental misconduct. The Supreme Court held that his speech was unprotected because the memoran- dum “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, be- cause 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 rea- soning 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 aca- demic 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 supervisor re- porting misconduct of detectives); see also Ulrey v. Reichhart, 2018 WL 6435652, at *4–6 (N.D. Ind. Dec. 7, 2018). No. 19-1221 5

This line of decisions—which Ulrey failed to acknowledge or address in the district court and on appeal, even after the district court relied upon them—required summary judg- ment for defendants. Even if Superintendent Reichhart vio- lated school district policy by making an exception allowing an adult student to possess cigarettes when he attended school, Ulrey’s speech fell within her official duties. Her writ- ten job description included duties to “coordinate and admin- ister student attendance and discipline policies,” just as the guard in Spiegla was paid to monitor vehicles coming into the prison. Ulrey’s complaint to the school board president fell within the scope of her job and was unprotected employee speech, not protected citizen speech. The two cases that Ulrey relies on do not help her position. In both Lane v. Franks, 573 U.S. 228 (2014), and Chrzanowski v. Bianchi, 725 F.3d 734 (7th Cir. 2013), the plaintiffs’ speech was protected because they spoke as citizens, in non-employee ca- pacities, not because they reported misconduct. In Lane, the Supreme Court held that sworn testimony given under sub- poena in a criminal trial was citizen speech even though the plaintiff was testifying against a former co-worker about mis- conduct in their office. 573 U.S. at 239. Similarly, in Chrzanowski, we held that a prosecutor who testified against his supervisor before a grand jury and at trial spoke as a citi- zen. 725 F.3d at 739–40. These cases turned on the speech’s context, not its content. See Lane, 573 U.S. at 240 (“The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.”); see also Swetlik, 738 F.3d at 826 (observing that employee’s statements in po- lice union meetings and grievances reporting police chief’s misconduct submitted by plaintiff in his capacity as a union 6 No. 19-1221

member were not employee speech). Ulrey’s call to the school board president was not comparable to sworn testimony be- fore a court or grand jury. Ulrey raises one other point that, she argues, creates a dis- pute of material fact to preclude summary judgment. The adult student whom Reichhart had allowed to possess ciga- rettes attended a special program called “Squire Academy”— named for the school mascot—that operated somewhat inde- pendently from the high school. Accepting Ulrey’s allegations as true, her authority to enforce the student handbook did not extend to Squire Academy students. Ulrey argues that her speech to Krouse thus fell outside her duties as assistant prin- cipal. We disagree. This administrative division cannot bear the weight Ulrey places on it. Squire Academy occupied the same building complex as the high school, and Ulrey states that she had “administrative responsibility” over the “physical class- room” in which it met. Explaining her decision to call Krouse, Ulrey testified that “students should not be allowed to have tobacco on school property for any reason” because it was “against the student handbook.” She also confirmed that she was “angry because of [her] role in enforcing the handbook.” Squire Academy disciplinary decisions bore closely on Ulrey’s duties even if she lacked total control over them, and we do not parse the precise scope of employees’ duties as finely as Ulrey argues. See, e.g., Vose, 506 F.3d at 571 (holding that police officer’s report of misconduct in a separate unit of the police department was employee speech). The district court correctly granted summary judgment on the First Amendment claim. No. 19-1221 7

II. Claim for Denial of Due Process Ulrey’s due-process claim stems from her resignation on November 4, 2014, three months after her call to the school board president. When a public employee has a property in- terest in his or her continued employment, typically shown by proving that the employee may be fired only for good cause, the state may not terminate the employment without due process of law. E.g., Phelan v. City of Chicago, 347 F.3d 679, 681 (7th Cir. 2003); see generally Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538 (1985); Board of Regents v. Roth, 408 U.S. 564, 577 (1972). Reichhart and the School Board agree that Ulrey had a protected interest in continued employment. Indiana gives public school teachers and administrators stat- utory protections that spell out the details of procedures used to vindicate this due process right. See Ind. Code § 20-28-7.5- 1 et seq. (2014) (teachers); Ind. Code § 20-28-8-2 (2014) (prin- cipals and assistant principals). 1 If Reichhart had tried to fire Ulrey, these procedural pro- tections would have been available to her. She did not invoke these procedural protections because she resigned. The gen- eral rule is that an employee who resigns—voluntarily relin- quishing her interest in continued employment—may not complain of a lack of due process. See Palka v. Shelton, 623 F.3d 447, 453 (7th Cir. 2010) (affirming dismissal of due-process claim by employee who resigned). There are narrow excep- tions, however. In Palka we identified two types of

1 Principals and assistant principals like Ulrey work under the regular teacher’s contract. See Ind. Code § 20-28-8-2(1). Indiana substantially re- vised the grounds and procedures for cancelling teacher contracts in 2011, but those amendments are not relevant here. See Elliott v. Bd. of School Trustees of Madison Consol. Schools, 876 F.3d 926, 928–30 (7th Cir. 2017). 8 No. 19-1221

“involuntary resignation” that amount to termination: con- structive discharge and coerced resignation. “Constructive discharge” is akin to a hostile work environment claim and may occur “when an employer makes employment so un- bearable that an employee resigns.” Id.; see Pennsylvania State Police v. Suders, 542 U.S. 129, 146–47 (2004) (explaining com- parison to hostile work environment). Coerced resignation, on the other hand, is “characterized by the presence of a Hob- son’s choice in which the employee must resign or suffer se- vere consequences, such as facing criminal charges.” Palka, 623 F.3d at 453. These two types of involuntary resignation are closely re- lated. See Patterson v. Portch, 853 F.2d 1399, 1405–06 (7th Cir. 1988). The primary distinction may be temporal: Whereas constructive discharge results when an employee must en- dure intolerable working conditions over some period of time, a specific threat or misrepresentation concerning future harm can provoke a coerced resignation. See Graehling v. Vil- lage of Lombard, 58 F.3d 295, 297–98 (7th Cir. 1995) (likening coerced resignation to signing a resignation letter at gun- point). Before considering whether Ulrey can avoid summary judgment under either theory, we summarize the events that led up to Ulrey’s resignation on November 4, 2014. Where there are disputes, we credit Ulrey’s account because we are reviewing a grant of summary judgment against her. The problems apparently began with faulty processing of teach- ing licenses at nearby Manchester University, where Ulrey had studied for her most recent license renewal. In an October 28 email, Reichhart notified all district teachers of potential errors on such licenses and stressed the serious nature of No. 19-1221 9

licensing defects. Later that morning, Ulrey logged on to a state website to check her own license. She discovered a prob- lem and promptly notified her superiors, including Reichhart. The error related to Ulrey’s eligibility to hold an administra- tive license, which she needed to serve as an assistant princi- pal. That same day, Reichhart called the state Department of Education with Ulrey present. A state official told them that the error could be resolved. The next morning, the official con- tacted Ulrey to ask permission to remove false entries, and she promptly agreed. Yet Reichhart’s concerns were not as- suaged; he emailed Ulrey on October 31 because he could not find her corrected license online. That same day, he met in his office with Ulrey and two others: Nancy Alspaugh, the high school principal, and Scott Bumgardner, the business man- ager. In the meeting, Reichhart berated Ulrey for the error and implied that he did not believe it had been an honest mistake. Tensions came to a head on November 4, when Reichhart again called a meeting with Ulrey, Alspaugh, and Bumgard- ner. Reichhart stated that he could not “get past” the licensing situation. According to her testimony, Ulrey was “baffled” and “asked him if he was asking for my resignation.” Reich- hart replied that he was. He then handed her a letter of resig- nation he had already prepared for her. Ulrey signed the letter during the meeting. That same night, the school board ap- proved Ulrey’s resignation on its consent agenda. Ulrey argues that these facts present a genuine dispute as to whether her resignation was coerced. Ulrey does not com- mit herself to either legal test for involuntary resignation; ra- ther, she asks us to consider what she describes as a “reason- able person” standard, arguing that a trier of fact must always 10 No. 19-1221

determine the voluntariness of a resignation. Yet, as summa- rized above, the tests for constructive discharge and coerced resignation do not ask generically whether a reasonable em- ployee would perceive a “free choice.” Ulrey needed to pro- duce evidence upon which a reasonable jury could rule in her favor under one of the established formulas for involuntary resignation. For due-process purposes, there is a critical dif- ference between a resignation and a discharge, and that dif- ference must be protected by insisting that the exceptions for constructive discharges and coerced resignations be kept nar- row. The test is not whether the employee who resigned was happy about resigning or even whether the employer asked for the resignation. Taking the exceptions in turn, Ulrey’s case is not a good fit for constructive discharge. She claims that she felt coerced to resign in a specific meeting with her supervisor, not that her conditions of employment became intolerable over time. A constructive discharge can result from a hostile work environ- ment only if the environment is “even more egregious than that needed for a hostile work environment.” Thompson v. Me- morial Hosp. of Carbondale, 625 F.3d 394, 401 (7th Cir. 2010). Ulrey has not presented evidence of conditions even ap- proaching that high standard. 2

2 Constructive discharge can sometimes refer to a situation where “an

employer acts in a manner so as to have communicated to a reasonable employee that she will be terminated.” Wright v. Illinois Dep’t of Children & Family Servs., 798 F.3d 513, 527 (7th Cir. 2015). But only at-will employees can show constructive discharge under this approach. Employees who en- joy due-process protections cannot assume that the start of termination proceedings will result in termination. See Cigan v. Chippewa Falls School No. 19-1221 11

Ulrey’s theory also falls well short of creating a genuine dispute of material fact under a coerced resignation theory. The most a jury could infer is that Reichhart threatened to fire Ulrey because of the licensing errors. Reichhart, for instance, admits that he told Ulrey it was in her “best interest” to resign. But the possibility of eventual termination, without more, cannot render a resignation involuntary; otherwise, a due process violation would result whenever a public employee resigned rather than asserting his or her (usually extensive) procedural rights. See Palka, 623 F.3d at 453 (“That Palka de- cided to resign rather than risk an unfavorable Merit Board decision does not make his resignation involuntary.”). In contrast, the rare, legally viable claims of coerced resig- nation have typically involved threats beyond termination, such as criminal prosecution or physical harm. See, e.g., Be- nuzzi v. Board of Education of the City of Chicago, 119 F. Supp. 3d 917, 927 (N.D. Ill. 2015) (denying motion for summary judg- ment where jury could find that plaintiff retired in response to threat of criminal prosecution); Lynd v. Bristol Kendall Fire Protection Dist., 2012 WL 3069391, at *4 (N.D. Ill. July 26, 2012) (denying motion to dismiss; plaintiff alleged he resigned in response to threats to harm his family). We have also held that a material misrepresentation that induces resignation can constitute coercion. See Spreen v. Brey, 961 F.2d 109, 112–13 (7th Cir. 1992) (affirming denial of summary judgment for em- ployer on due-process claim where employee said she was threatened with loss of vested pension benefits if she did not resign and were instead fired); cf. Covington v. Dep’t of Health & Human Services, 750 F.2d 937, 942 (Fed. Cir. 1984) (federal

Dist., 388 F.3d 331, 333 (7th Cir. 2004) (“The only way to know how matters will turn out is to let the process run its course.”). 12 No. 19-1221

retirement considered involuntary if employee relies on mis- information, whether error is intentional, negligent, or inno- cent); Scharf v. Dep’t of the Air Force, 710 F.2d 1572, 1575 (Fed. Cir. 1983) (same). Here, Ulrey offered to resign because Reich- hart’s “vibes” and “physical demeanor” communicated his desire to fire her. That simply is not enough to treat defend- ants as if they had denied plaintiff the extensive procedural protections available to her if she had wanted to contest a pos- sible termination. The judgment of the district court is AFFIRMED.