9th Circ. Says Teacher’s Beef With School Not Free Speech

     SEATTLE (CN) – A Washington state teacher who says she was fired after she complained about her school’s special-education policy cannot pursue civil rights claims because she was speaking as an employee and not as a private citizen, the Ninth Circuit ruled.
     The Circuit’s three-judge panel also remanded the wrongful discharge claim because the case the lower court used as precedent was recently overruled by the Washington Supreme Court.
     Special education teacher Tristan Coomes sued the Edmonds, Washington school district and the principal and assistant principal of her school in 2012 for retaliation and constructive discharge.
     Coomes taught students with emotional and behavioral disorders (EBD) in a separate EBD classroom. Coomes claims she faced retaliation after she complained that EBD students who were ready to move to mainstream classes were not moved or had moves delayed based on financial considerations.
     In March 2010, Coomes emailed her union representative, the district’s human resources manager and other teachers complaining about her treatment by administrators for opposing the school’s policy on EBD students.
     The email was eventually forwarded to Coomes’ principal, defendant Christine Avery, who said the email contained false allegations. Avery said she hoped the district would “take a very strong position in stopping this behavior,” according to the opinion.
     Avery then objected to the district’s proposal to reassign Coomes to another school because it would validate Coomes’ complaints about Avery.
     Coomes continued to work at the school, but also continued to criticize the EBD plan. As a result, she claims her performance evaluations suffered.
     The district approved her transfer to another school for the 2011-2012 year, but before she could start she collapsed at work due to stress and took a medical leave, according to the ruling. On the advice of her therapist, Coomes decided not to return to work and claimed she was constructively discharged, the opinion said.
     Coomes then sued the Edmonds School District in state court for wrongful discharge, saying her First Amendment rights were violated and she suffered retaliation for exercising those rights.
     The case was removed to Federal Court where she added Avery and assistant principal Joe Webster as defendants.
     U.S. District Judge John Coughenour granted the district and administrators summary judgment, dismissing Coomes’ First Amendment claim because Coomes “spoke as a public employee, not as a private citizen.”
     Coughenour also dismissed Coomes’ wrongful discharge claim, relying on Korslund v. DynCorp Tri-Cities Servs., Inc.‘s “adequacy of alternative remedies” analysis.
     On Wednesday, the Ninth Circuit reinstated the wrongful discharge claim and remanded, because the Washington Supreme Court recently overturned Korslund by finding “the existence of alternative statutory remedies, regardless of whether or not they are adequate, does not prevent the plaintiff from bringing a wrongful discharge claim.”
     Circuit Judge Diarmuid O’Scannlain, writing for the panel, affirmed dismissal of Coomes’ First Amendment claim.
     Coomes’ statements about the EBD program and how administrators treated her were made as a public employee and not a private citizen, according to the ruling.
     Coomes’ free speech claim is moot as a result, the ruling says.
     Comments Coomes made to parents also fall under the scope of her job and are not subject to free speech protection.
     “Even when construing the evidence in the light most favorable to Coomes, her speech to her supervisors and district administrators is unprotected “up-the-chain-of-command” complaints, and her speech to parents regarding their students’ educational programs was, by her own admission, part of her job as head of the EBD program. We therefore conclude that Coomes failed to meet her burden to show that the relevant speech was made in her capacity as a private citizen, and that the district court’s judgment with respect to Coomes’ First Amendment claim was proper,” O’Scannlain wrote.
     The panel affirmed the district court’s summary judgment and remanded the wrongful discharge claim, advising the court “should first consider whether to continue to exercise its supplemental jurisdiction.”

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