Zellner v. Herrick

• Decision Date: 29 April 2011
• Docket Number: No. 10–2729.,10–2729.
• Citation: 639 F.3d 371
• Parties: Robert ZELLNER, a Wisconsin resident, Plaintiff–Appellant,v.Daryl HERRICK, a Wisconsin resident, in his official capacity as Superintendent of the Cedarburg School District, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

639 F.3d 371

267 Ed. Law Rep. 55

32 IER Cases 279

Robert ZELLNER, a Wisconsin resident, Plaintiff–Appellant,

v.Daryl HERRICK, a Wisconsin resident, in his official capacity as Superintendent of the Cedarburg School District, et al., Defendants–Appellees.

No. 10–2729.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 10, 2011.Decided April 29, 2011.

Michael P. Erhard (argued), Attorney, Erhard & Payette, Madison, WI, for Plaintiff–Appellant.Lori M. Lubinsky (argued), Attorney, Axley Brynelson, Madison, WI, for Defendants–Appellees.Before MANION, EVANS, and HAMILTON, Circuit Judges.EVANS, Circuit Judge.

Robert Zellner, a high school biology teacher and former teacher's union president, was fired by his employer, the Cedarburg School District, for allegedly viewing pornographic images on his school computer in violation of District policy. Zellner, believing instead that he was fired because of his union activities, filed a civil rights complaint under 42 U.S.C. § 1983 against Defendants Daryl Herrick, John Pendergast, and Linda Borkenhagen, in their official capacities, and the Cedarburg School District (we will refer to the defendants collectively as “the District”), alleging violations of his First and Fifth Amendment ¹ rights. The district court granted the District's motion to dismiss with respect to Zellner's due process claim and the District's summary judgment motion with respect to his First Amendment claim. Zellner now appeals, and we view the facts, as we must at this time, in the light most favorable to Zellner.

Zellner worked at Cedarburg High School as a biology teacher for nearly eleven years until his employment was terminated on January 17, 2006. At all relevant times Jay Grieger was the Principal of the high school and Zellner's immediate supervisor. Herrick has been the Superintendent of the District since July 1, 2002. Pendergast, elected to the School Board in the spring of 2004, has been School Board President since 2005. Borkenhagen is the Director of Technology for the District.

Because Zellner asserts that he was fired as a result of his union activities, we begin with the years of animosity between the Union and the District leading up to Zellner's termination. While employed by the District, Zellner was an active member of the Cedarburg Education Association (the “Union”). In the fall of 2003, Zellner became the president of the Union, serving in that position for two years. From 2005 until his termination, Zellner was the Union representative for the high school. Before, during, and after Zellner's term as Union president, relations between the Union and the District were plagued.

In 2003 Herrick recommended that the School Board not renew Principal Grieger's employment contract. The Board, however, rejected Herrick's proposal by a vote of four-to-three. Shortly thereafter, Zellner and 58 other high school staff members published a statement in a local paper that criticized Herrick and the Board for trying to oust Grieger. Later, Zellner was quoted in a local paper saying that Herrick and the District were creating an “atmosphere of uncertainty, distrust and intimidation between the district administration and the [high school] staff.”

Zellner, in his capacity as Union president, refused to agree to Herrick's proposed Qualified Economic Offer (“QEO”) that resulted in salary reductions for Cedarburg teachers, making them among the lowest paid in the area. Zellner also facilitated a “District Leadership Survey Report” in which Union members evaluated the performance of administrators. The report was extremely critical of Herrick. When Zellner attempted to present the report to the School Board, Herrick directed Board members not to open the report.

Following a contentious contract negotiation session between the Union and School Board, Herrick warned Zellner that “the gloves would come off” if the Union did not back down. He also informed Zellner that a “prominent member of the community” had claimed Zellner was into pornography, but that because it was not school-related, he would not report Zellner at that time.

In December 2004, Zellner, as Union president, publicly spoke in opposition to the creation of a task force by Herrick because Principal Grieger and volunteer teachers were not allowed to participate. A month before Herrick's contract was up for renewal, Zellner informed Herrick that the Union had secured a “no confidence” vote in his leadership by some 95 percent of participating teachers. The vote was discussed at several school board meetings in 2005.

In January 2005, in his capacity as Union president, Zellner issued a press release titled, “District Teachers Vote ‘No Confidence’ in ... Herrick,” and held a press conference on the same subject. Articles on the Union's position, and Herrick's response, were published in the Milwaukee Journal Sentinel and the Cedarburg News Graphic.

Shortly thereafter, the School Board required that Union representatives, including Zellner, meet with Herrick, members of the District leadership team, and the Board, for the stated purpose of attempting to improve relations between the Union and the District. A meeting was held on January 24, 2005, and all parties agreed that it would be “off the record,” and no notes would be taken. After the meeting, Herrick sent an e-mail to Pendergast (who missed part of the meeting) summarizing what had occurred.

Following the meeting, a citizen made an open records request, and the District produced the e-mail between Herrick and Pendergast. In the e-mail, which Zellner believes breached the “off the record” agreement, Herrick stated that the teachers gave him an ultimatum to accept only a one-year contract and told him the Union would not work with him if he agreed to renew for two years. Upon receiving the e-mail, the citizen wrote to the Ozaukee County Sheriff and District Attorney complaining about the Union's ultimatum and asking them to investigate whether it violated any laws. An article was also published in the Milwaukee Journal Sentinel discussing the e-mails and the potential investigation.

Soon after the meeting, the Board offered Herrick—and he accepted—a new two-year contract. In April 2005, all incumbent Board members were re-elected, giving them what they considered to be a “tough” mandate in dealing with the Union. By June, the Board and the Union had not reached an agreement on the Collective Bargaining Agreement for 2003–2005, and the Board implemented a second QEO resulting in further salary reductions, again making Cedarburg teachers among the lowest paid in the area.

In August 2005, Zellner's term as Union president ended, but he still remained involved in union activities until his termination. Relations between the Union and the District remained volatile, but Zellner did not speak out publicly or talk with Herrick or Pendergast personally regarding Union issues any time after February 24, 2005.

On December 15, 2005, the Milwaukee Journal Sentinel published an article entitled, “Cedarburg Losing More Teachers—Some Cite Low Pay, Politics at High School.” In the article Zellner is reported as saying, “When you start losing veteran teachers to retirement that is one thing,” but “when younger teachers leave, it's a real warning.” Zellner claims that Herrick and Pendergast were aware that he was interviewed (they were also interviewed for the article) and that they knew what he said.

Significantly more relevant to Zellner's termination is the fact that on August 15, 2005, the School Board updated its computer usage policy entitled, “Employee Access to Networked Information Resources” (the “Policy”). Zellner signed off on the updated Policy, acknowledging that he was responsible for compliance with it and that violations could result in a loss of access and/or disciplinary action. Included in the Policy is a rule notifying employees that their computer usage is not private and may be monitored. The Policy specifically states that “accessing, sending or displaying offensive messages, pictures or child pornography” is strictly prohibited. The Policy also states that the “network administrator will report inappropriate behavior to the employee's supervisor who will take appropriate disciplinary action.”

In November 2004, the District's technology department had reimaged (wiped clean) a number of district employees' computers because of complaints of “spyware” and “popups.” Zellner's school computer was reimaged at this time, and Borkenhagen, as we said the District's Director of Technology, was aware of the reimaging. Almost ten months later, in late August 2005, Zellner reported that his computer had “gone crazy,” and he was unable to use it. Zellner's computer was again reimaged. Jeanne Dries, the IT technician who reimaged Zellner's computer, told Borkenhagen that Zellner's computer was very messed up and that in her opinion it “doesn't get that way without some behavior that—going to sites that were questionable.” Borkenhagen reported to Herrick, her supervisor, that Zellner's computer had to be reimaged a second time. Borkenhagen did not notify Grieger, Zellner's immediate supervisor.²

After Herrick learned about the second reimaging, he directed Borkenhagen to place monitoring software on Zellner's computer. The software continually logged Zellner's computer activity, but the results were not viewable unless they were specifically accessed. Borkenhagen initially checked the log every day, but after a while she checked with decreasing frequency. Zellner acknowledges that the District had the right to place monitoring software on his computer.

On Sunday, November 6, 2005, Zellner was at school working on his class plan and used his school computer to conduct a Google Image search. First, Zellner disengaged the “safe search” filter. He then typed “blonde” into the Google search box. The search produced 20 “thumbnail” images, all of them pornographic,...