Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

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ZELLNER v. HERRICK (April 29, 2011)

Robert Zellner was a biology teacher at Cedarburg High School in Cedarburg, Wisconsin between 1995 and 2006. He was active in Cedarburg Education Association (the teacher's union) throughout his employment and was its president between 2003 and 2005. The relationship between the District and the Union during this time was quite strained. During his presidency, Zellner was very publicly critical of the District, in particular Superintendent Daryl Herrick. After his presidency ended in August of 2005, Zellner remained active in the Union but no longer spoke out publicly. Also in August 2005, Zellner signed his consent to a new District computer usage policy. The policy notified District employees that their computer usage was not private and could be monitored, expressly prohibited access to offensive pictures, and warned that any violation could result in disciplinary action. Soon thereafter, the District’s IT Department had to clean up Zellner's computer for a second time. The IT technician reported to her supervisor her opinion that Zellner's computer problems were caused by visiting “questionable” Internet sites. The Director of Technology reported these suspicions to Superintendent Herrick, who ordered monitoring software be placed on the computer. The Director of Technology checked the usage logs from time to time. In December, the log indicated that Zellner had visited a number of pornographic websites. Herrick confronted Zellner, who admitted accessing pornography on the District computer several times and conceded that his actions violated school policy. Zellner refused to resign. The School Board held a disciplinary hearing in January. The Board gave Zellner an opportunity to testify and present evidence. He declined to testify but instead read a statement apologizing for his conduct and admitting using poor judgment. The School Board considered a range of discipline but ultimately chose to fire Zellner. A state trial court and appellate court upheld the termination. Zellner filed suit in federal court, alleging a violation of his due process rights and his First Amendment rights. Judge Randa (E.D. Wis.) dismissed the due process claim and granted summary judgment to the defendants on the First Amendment claim. Zellner appeals.

In their opinion, Judges Manion, Evans, and Hamilton affirmed. Although the Court was somewhat critical of the district court's dismissal of the due process claim sua sponte, it nevertheless upheld the dismissal. Even if the Zellner were able to make out a due process claim, the only relief to which he would be entitled was a opportunity to be heard. He was given a hearing and he was given an opportunity to testify. Instead, he read a statement which did not even dispute the charges. He is entitled to no more process. The Court also agreed with the district court's ruling on the First Amendment claim, finding an absence of proof of but-for causation. Notwithstanding the years of animosity between Zellner and the School District, the Court concluded that no jury could find that Zellner's union activities amounted to but-for causation. Zellner admits that he accessed pornography on the District computer and that his conduct violated the District’s policy. Therefore, the School District had a legitimate, nondiscriminatory reason to fire him.