639 F.3d 371 (7th Cir. 2011), 10-2729, Zellner v. Herrick

Docket Nº:10-2729.
Citation:639 F.3d 371
Opinion Judge:EVANS, Circuit Judge.
Party Name: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.
Attorney:Michael P. Erhard (argued), Attorney, Erhard & Payette, Madison, WI, for Plaintiff-Appellant. Lori M. Lubinsky (argued), Attorney, Axley Brynelson, Madison, WI, for Defendants-Appellees.
Judge Panel:Before MANION, EVANS, and HAMILTON, Circuit Judges.
Case Date:April 29, 2011
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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639 F.3d 371 (7th Cir. 2011)

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.

April 29, 2011

Argued Feb. 10, 2011.

Page 372

[Copyrighted Material Omitted]

Page 373

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

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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...

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