Mark Zandberg v. Edmonds School District No 15

FILED
NOT FOR PUBLICATION MAY 11 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARK A. ZANDBERG, No. 09-35443
Plaintiff - Appellant, D.C. No. 2:08-cv-00570-JCC
v.
MEMORANDUM *
EDMONDS SCHOOL DISTRICT NO. 15
and MARLA MILLER,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted May 6, 2010 **
Seattle, Washington
Before: WARDLAW and GOULD, Circuit Judges, and MILLS, District Judge.***
Mark Zandberg appeals the district court’s grant of summary judgment in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Richard Mills, United States District Judge for the
Central District of Illinois, sitting by designation.
favor of the Edmonds School District (“School District”). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
1. 42 U.S.C. § 1983 Claim
The district court properly concluded that Zandberg failed to raise a genuine
issue of material fact as to whether the School District took an “adverse
employment action” against him in retaliation for the exercise of his First
Amendment rights. See Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013,
1019 (9th Cir. 2004) (de novo review); Coszalter v. City of Salem, 320 F.3d 968,
973 (9th Cir. 2003) (to state a First Amendment retaliation claim against a
government employer an “adverse employment action” must be demonstrated).
Viewed in the light most favorable to Zandberg, none of the School District’s
actions were “reasonably likely to deter” him from engaging in protected speech.
See id. at 970. The Letter of Direction issued by the School District to Zandberg
and the School District’s subsequent communications with him served as guidance
for future expression of personal opinion and for communications prepared on
behalf of the School District. In directing Zandberg to “clearly distinguish
personal opinion from communication on behalf of the district,” the School
District’s Letter of Direction stated that it “respects the right of individual
employees to express personal opinions.” Further, Zandberg’s supervisors
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explained to him that the Letter of Direction required Zandberg to request approval
only for communications prepared on behalf of the School District that lent
themselves to “editorializing.”
2. Wrongful Discharge Claim
The district court also correctly concluded that no genuine issues of material
fact, viewing the facts in the light most favorable to Zandberg, exist as to his claim
of wrongful discharge under Washington state law. As the district court
concluded, there was no evidence the School District took deliberate action to
make Zandberg’s working conditions so intolerable that a reasonable person would
have felt compelled to resign. See Universal Health Servs., Inc., 363 F.3d at 1019
(de novo review); Washington v. Boeing Co., 19 P.3d 1041, 1049 (Wash. Ct. App.
2000) (test for constructive discharge). To the contrary, the evidence shows that
Zandberg voluntarily resigned, which conclusively defeats his claim for wrongful
termination. See Molsness v. City of Walla Walla, 928 P.2d 1108, 1110 (Wash. Ct.
App. 1996).
AFFIRMED.
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