Stella Satter v. State of Washington Department of Ecology; Kenneth Slattery

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STELLA SATTER,
Plaintiff - Appellant,
v.
STATE OF WASHINGTON
DEPARTMENT OF ECOLOGY;
KENNETH SLATTERY,
Defendants - Appellees.
No. 10-36131
D.C. No. 3:09-cv-05645-BHS
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted December 5, 2011
Seattle, Washington
Before: TASHIMA, McKEOWN, and TALLMAN, Circuit Judges.
Stella Satter appeals the district court’s grant of summary judgment in favor
of defendants. Satter claims that an unconstitutional prior restraint was placed on
her speech during the pendency of an investigation into her work-related conduct.
FILED
DEC 20 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Satter also claims she was constructively discharged from her position at the
Department of Ecology (“DOE”) because she resigned under duress. We agree
with the district court that Slattery had qualified immunity and that Satter’s
resignation was voluntary.
We assume, without deciding, that Slattery’s restriction on Satter’s speech
led to a constitutional violation under the balancing test set forth in Pickering v.
Board of Education, 391 U.S. 563 (1968). Nonetheless, Slattery is entitled to
qualified immunity for this claimed violation if his actions did not violate a
“clearly established” right. A right is “clearly established” if “the contours of the
right [are] sufficiently clear that a reasonable official would understand that what
he is doing violates that right.” Moran v. Washington, 147 F.3d 839, 844-45 (9th
Cir. 1998) (internal quotation marks omitted). “Because the underlying
determination pursuant to Pickering whether a public employee’s speech is
constitutionally protected turns on a context-intensive, case-by-case balancing
analysis, the law regarding such claims will rarely, if ever, be sufficiently ‘clearly
established’ to preclude qualified immunity . . . .” Id. at 847.
Satter cannot demonstrate that the contours of her right to free speech were
sufficiently clear that a reasonable official would understand that the restriction
imposed was a violation of that right. Assuming the speech restriction was
overbroad, Satter cannot show that Slattery should have understood that the

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Pickering balancing test weighed so clearly in Satter’s favor that the prohibition he
imposed would be constitutionally problematic. The same rationale applies to the
prohibition on Satter’s speech subsequent to the conclusion of the investigation.
Slattery is therefore entitled to qualified immunity.
With respect to the constructive discharge claim, it is undisputed that Satter
tendered her resignation at the pre-disciplinary hearing. Under Washington law, an
employee’s resignation is presumed voluntary and the employee bears the burden
of rebutting this presumption. Molsness v. City of Walla Walla, 928 P.2d 1108
(Wash. App. 1996) (citations omitted). A resignation is not rendered involuntary
because an employee tenders her resignation to avoid termination for cause. Id.
at 1110. Satter may nonetheless succeed if the DOE deliberately made her
working conditions so intolerable such that a reasonable person in Satter’s position
would be forced to resign. Sneed v. Barna, 912 P.2d 1035, 1039 (Wash. App.
1996). The record does not support such a claim here. Satter did not tender her
resignation while the complained-about circumstances were present; instead, she
tendered her resignation only when faced with disciplinary action “up to and
including discharge.”
Satter initially chose to dispute the charges, but later changed her mind. She
prepared and provided the DOE a point-by-point rebuttal at the pre-disciplinary

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hearing; however, instead of arguing her case at the hearing or waiting for the
DOE’s imposition of discipline, she resigned. Consequently, “[t]he fact remains,
plaintiff had a choice. She could stand pat and fight. She chose not to. Merely
because plaintiff was faced with an inherently unpleasant situation in that her
choice was arguably limited to two unpleasant alternatives does not obviate the
voluntariness of her resignation.” Molsness, 928 P.2d at 1110 (quotation marks
omitted).
Satter’s request for attorneys’ fees is denied as moot.
AFFIRMED.

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