Tristan Coomes v. Edmonds School District No 15 , 816 F.3d 1255 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRISTAN COOMES; SEAN COOMES, a No. 13-35747
marital community,
Plaintiffs-Appellants, D.C. No.
2:12-cv-00319-
v. JCC
EDMONDS SCHOOL DISTRICT NO. 15;
CHRISTINE AVERY; JOE WEBSTER, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, Senior District Judge, Presiding
Argued and Submitted
June 1, 2015—Seattle, Washington
Filed March 23, 2016
Before: Diarmuid F. O’Scannlain, A. Wallace Tashima,
and M. Margaret McKeown, Circuit Judges.
Opinion by Judge O’Scannlain
2 COOMES V. EDMONDS SCH. DIST. NO. 15
SUMMARY*
Civil Rights
The panel affirmed in part and vacated in part the district
court’s summary judgment and remanded in an action
brought by a public school teacher who alleged that she was
wrongfully discharged, in violation of her First Amendment
rights and state law, after she voiced concerns about her
school’s special education program to her supervisors and her
students’ parents.
The panel held that even when construing the evidence in
the light most favorable to plaintiff, her speech to her
supervisors and the school district administrators was
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 school’s special education program. The panel
therefore concluded that plaintiff 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 the First Amendment claim was proper.
Addressing plaintiff’s claim under Washington law for
wrongful discharge, the panel held that because an
intervening authority had overruled the Washington state
decision upon which the district court’s analysis was based,
it was required to vacate the district court’s judgment. The
panel remanded to the district court for consideration of the
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
COOMES V. EDMONDS SCH. DIST. NO. 15 3
wrongful discharge claim in light of Rose v. Anderson Hay &
Grain Co., 358 P.3d 1139, 1143 (Wash. 2015). However,
because the panel affirmed the district court’s grant of
summary judgment with respect to plaintiff’s claim under
federal law, it advised the district court to first consider
whether to continue to exercise its supplemental jurisdiction.
COUNSEL
Sidney C. Tribe, Talmadge/Fitzpatrick PLLC, Tukwila,
Washington, argued the cause on behalf of plaintiffs-
appellants. With her on the brief were Philip A. Talmadge,
Talmadge/Fitzpatrick PLLC, Tukwila, Washington, and Neal
J. Philip, Fulton & Philip PLLC, Seattle, Washington.
Duncan K. Fobes, Patterson Buchanan Fobes & Leitch, Inc.,
P.S., Seattle, Washington, argued the cause for defendants-
appellees. With him on the brief was Sarah S. Mack,
Patterson Buchanan Fobes & Leitch, Inc., P.S., Seattle,
Washington.
4 COOMES V. EDMONDS SCH. DIST. NO. 15
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a public school teacher speaks
as an employee or a private citizen when she voices concerns
about the school’s special education program to her
supervisors and her students’ parents.
I
Tristan Coomes worked for four years at Meadowdale
Middle School (“Meadowdale”), in Edmonds School District
(“District”), as the manager of the school’s new
Emotional/Behavioral Disorders (“EBD”) program and the
primary teacher for students in the program.
Initially, Coomes got along with the administration,
including Joe Webster, the Assistant Principal of
Meadowdale, and Christine Avery, the school’s Principal.
Coomes received “satisfactory” performance evaluations.
But Coomes’s relationship with the school administration
later deteriorated, arising from her disagreement with
Webster and Avery over the “mainstreaming” of her students.
Coomes believed that some of her students who were ready
for mainstream classes were not being allowed access to such
classes for impermissible financial reasons.
A
In March 2010, Coomes sent Andi Nofziger, her union
representative, and Debby Carter, a District human resources
manager, an email complaining about treatment by
Meadowdale administrators, including Avery. Coomes noted
COOMES V. EDMONDS SCH. DIST. NO. 15 5
that she had expressed concerns that EBD students who were
ready to move to mainstream classes were not moved or had
moves delayed based on improper financial considerations.
Coomes forwarded the email to a group of other Meadowdale
teachers, and the email chain was then forwarded to Avery in
April 2010.
Avery forwarded the email chain to District
administrators, stating that it contained false accusations and
that she hoped the District would “take a very strong position
in stopping this behavior.” A few weeks later, Avery emailed
Carter and District Assistant Superintendent Ken Limon to
express her disagreement with a proposal to reassign Coomes
to another school because Avery believed that the
reassignment would publicly validate Coomes’s complaints
about Avery.
Then, during the next school year, the EBD program
experienced a significant change. EBD students were placed
in more “mainstream” academic classes than in past years as
part of “a concerted effort to move the EBD program from a
self-contained model to a more inclusive . . . model.”
Coomes objected to this change when it was originally
proposed. She sent Webster an email stating that she thought
that new students who had been in self-contained classrooms
for sixth grade should start the year in her EBD classroom
full time so she could get to know their needs and help them
adjust to the new school setting.
Coomes continued to express concerns about changes to
the EBD program. Meanwhile, Coomes’s evaluations began
to worsen, and Webster and Avery wrote Coomes a number
of letters criticizing her performance or reiterating their
expectations regarding the curriculum and the EBD program.
6 COOMES V. EDMONDS SCH. DIST. NO. 15
B
After Coomes complained to District superintendent Nick
Brossoit in the spring of 2011, the District agreed to transfer
Coomes to a position at nearby Lynnwood High School for
the 2011–2012 school year. However, prior to the start of the
academic calendar, Coomes collapsed in the school’s halls,
“falling to the floor and sobbing uncontrollably.” Coomes
then requested and was granted medical leave from
September 1 to December 31, 2011. But, on the advice of her
therapist, Coomes decided not to return to work, and on
September 9, 2011, Coomes’s attorney sent the District a
letter stating that it was “impossible for her to continue
working” and that she had been constructively discharged.
After the District’s counsel contacted Coomes’s counsel to
confirm that Coomes would not be returning to work, the
District processed her employment separation.
C
Thereafter, Coomes filed suit against Edmonds School
District in Washington state court, alleging that she had been
wrongfully discharged under Washington law, that her First
Amendment rights were infringed, that she was retaliated
against for exercising such rights, and that she was entitled to
recovery under a variety of other state law claims. Her case
was removed to the United States District Court for the
Western District of Washington, where she added Avery and
Webster as defendants. After discovery, the District and
administrators moved for summary judgment on the federal
and state claims, and the motion was granted. Coomes filed
COOMES V. EDMONDS SCH. DIST. NO. 15 7
a timely notice of appeal, and we have jurisdiction under 28
U.S.C. § 1291.1II
On appeal, Coomes contends that genuine issues of
material fact exist and that the district court improperly
entered summary judgment. Specifically, she contends that
her speech to supervisors and parents about the treatment of
students in the EBD program related to matters of public
concern, was not made pursuant to her official duties, and
was a substantial or motivating factor in the District’s adverse
employment actions. She also contends that the district court
incorrectly concluded that special education and
whistleblower laws foreclose a wrongful discharge claim
under Washington law.
A
Coomes first contends that her First Amendment rights
were violated by the adverse employment actions taken
against her because of her expressed views about the
treatment of students in the EBD program.
1
We review a district court’s grant of summary judgment de novo. See
Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003). Because
this appeal is taken from an order of summary judgment in favor of the
District, the evidence of Coomes “is to be believed, and all justifiable
inferences are to be drawn in [her] favor.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). Viewing the evidence in the light most
favorable to Coomes, we must determine whether there are any genuine
issues of material fact and whether the district court correctly applied the
relevant substantive law. See Coszalter, 320 F.3d at 973.
8 COOMES V. EDMONDS SCH. DIST. NO. 15
1
“[P]ublic employees do not surrender all their First
Amendment rights by reason of their employment.” Garcetti
v. Ceballos, 547 U.S. 410, 417 (2006). “Rather, the First
Amendment protects a public employee’s right, in certain
circumstances, to speak as a citizen addressing matters of
public concern.” Id. While the protection of government
employee speech serves both the individual’s interest and
“the public’s interest in receiving the well-informed views of
government employees engaging in civic discussion,” the
public interest is also served by “respect[ing] the needs of
government employers attempting to perform their important
public functions.” See id. at 419–20. As such, “while the
First Amendment invests public employees with certain
rights, it does not empower them to ‘constitutionalize the
employee grievance.’” Id. at 420 (quoting Connick v. Myers,
461 U.S. 138, 154 (1983)).
In Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009), we set
forth the five-factor inquiry for evaluating First Amendment
retaliation claims. First, the plaintiff bears the burden of
proof at trial of showing (1) that she spoke on a matter of
public concern; (2) that she spoke as a private citizen rather
than a public employee; and (3) that the relevant speech was
“a substantial or motivating factor in the adverse employment
action.” Id. at 1070–71. If the plaintiff establishes such a
prima facie case, the burden of proof shifts to the government
to show that (4) “the state had an adequate justification for
treating the employee differently from other members of the
general public”; or (5) “the state would have taken the
COOMES V. EDMONDS SCH. DIST. NO. 15 9
adverse employment action even absent the protected
speech.” Id. at 1070–72.2
All of the Eng “factors are necessary, in the sense that
failure to meet any one of them is fatal to the plaintiff’s case.”
Dahlia v. Rodriguez, 735 F.3d 1060, 1067 n.4 (9th Cir. 2013)
(en banc). Because “all five factors are independently
necessary,” a reviewing court is free to address a potentially
dispositive factor first rather than addressing each factor
sequentially. Id.2
While Eng delineates the burden of proof at trial, courts must be
“mindful of the shifting burden of proof governing motions for summary
judgment under Federal Rule of Civil Procedure 56.” In re Oracle Corp.
Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). On a motion for summary
judgment,
The moving party initially bears the burden of proving
the absence of a genuine issue of material fact. Where
the non-moving party bears the burden of proof at trial,
the moving party need only prove that there is an
absence of evidence to support the non-moving party’s
case. Where the moving party meets that burden, the
burden then shifts to the non-moving party to designate
specific facts demonstrating the existence of genuine
issues for trial. This burden is not a light one. The
non-moving party must show more than the mere
existence of a scintilla of evidence. The non-moving
party must do more than show there is some
“metaphysical doubt” as to the material facts at issue.
In fact, the non-moving party must come forth with
evidence from which a jury could reasonably render a
verdict in the non-moving party’s favor.
Id. (citations omitted).
10 COOMES V. EDMONDS SCH. DIST. NO. 15
2
With the foregoing in mind, we focus on the second Eng
factor: whether Coomes spoke as a private citizen or as a
public employee.
Again, we are guided by ample precedent. The First
Amendment does not protect speech by public employees that
is made pursuant to their employment responsibilities—no
matter how much a matter of public concern it might be. See
Garcetti, 547 U.S. at 423–24. In Garcetti, the Court
explained “that when public employees make statements
pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their communications from
employer discipline.” Id. at 421. Consequently, “[r]estricting
speech that owes its existence to a public employee’s
professional responsibilities does not infringe any liberties the
employee might have enjoyed as a private citizen.” Id. at
421–22.
The Supreme Court recently emphasized in Lane v.
Franks that the “mere fact that a citizen’s speech concerns
information acquired by virtue of his public employment does
not transform that speech into employee—rather than
citizen—speech.” 134 S. Ct. 2369, 2379 (2014). Instead, the
“critical question under Garcetti is whether the speech at
issue is itself ordinarily within the scope of an employee’s
duties, not whether it merely concerns those duties.” Id.Thus, to the extent that Coomes’s speech was within the
scope of her employment duties, such speech is not protected
by the First Amendment.
COOMES V. EDMONDS SCH. DIST. NO. 15 11
Whether Coomes was speaking as a private citizen or a
public employee is a mixed question of law and fact. Hagen
v. City of Eugene, 736 F.3d 1251, 1257 (9th Cir. 2013). The
“scope and content of [Coomes’s] job responsibilities” is a
factual question. Johnson v. Poway Unified Sch. Dist., 658
F.3d 954, 966 (9th Cir. 2011) (quoting Eng, 552 F.3d at
1071). This inquiry is not limited to a formalistic review of
Coomes’s job description, but is “practical.” Id. (quoting
Garcetti, 547 U.S. at 424); see Marable v. Nitchman, 511
F.3d 924, 932–33 (9th Cir. 2007).
Also, the Court must, as a matter of law, decide the
“‘ultimate constitutional significance’ of those facts.”
Johnson, 658 F.3d at 966 (quoting Eng, 552 F.3d at 1071). If
Coomes’s “speech ‘owes its existence’ to [her] position as a
teacher, then [she] spoke as a public employee, not as a
citizen, and our inquiry is at an end.” Id. (quoting Garcetti,
547 U.S. at 421–22).
Regarding the factual inquiry, the Garcetti Court had “no
occasion to articulate a comprehensive framework for
defining the scope of an employee’s duties . . . where there is
room for serious debate.” Posey v. Lake Pend Oreille Sch.
Dist. No. 84, 546 F.3d 1121, 1127 (9th Cir. 2008) (quoting
Garcetti, 547 U.S. at 424).3 Likewise, in Lane, the Court did
not provide such a framework because it was “undisputed that
[the employee’s] ordinary job responsibilities did not
include” the speech at issue. 134 S. Ct. at 2378 n.4; see id. at
2383 (Thomas, J., concurring). In resolving this factual
3
In Garcetti, “there was no dispute” that the speech at issue—an internal
memorandum drafted by Deputy District Attorney Ceballos—“had been
written in execution of Ceballos’s official employment responsibilities.”
Posey, 546 F.3d at 1127.
12 COOMES V. EDMONDS SCH. DIST. NO. 15
question, we consider a set of non-exhaustive “guiding
principles” drawn from our case law applying Garcetti. See
Dahlia, 735 F.3d at 1074–76.
III
So the central question becomes whether any genuine
issue of material fact exists with respect to the second Eng
factor: did Coomes speak as a private citizen or a public
employee? Because the plaintiff bears the burden of proof at
trial on this factor, a defendant moving for summary
judgment must either produce evidence establishing that the
plaintiff spoke as a public employee or show, through
argument, that the plaintiff does not have enough evidence to
establish that she spoke as a private citizen. See Nissan Fire
& Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1102
(9th Cir. 2000). Where the defendant meets that burden, the
burden then shifts to the plaintiff to designate specific facts
demonstrating the existence of genuine issues for trial. See
Oracle, 627 F.3d at 387.
A
Here, the District initially bore the burden of production
to show that Coomes spoke as a public employee or lacked
evidence sufficient to establish that she spoke as a private
citizen. To meet that burden, the District submitted
Coomes’s formal job description and submitted her emails
that allegedly formed the basis for retaliation. In addition, the
District argued that “Coomes focused her complaints on
things that happened in her classroom, with individual
students, during the school day,” that her complaints to her
supervisors occurred in her role as teacher, and that she
referred to herself as a teacher and employee in her email to
COOMES V. EDMONDS SCH. DIST. NO. 15 13
the District’s human resources manager and her union
representative. On appeal, the District cites both Coomes’s
job description and her declaration to show that she was
responsible for managing the EBD program and was part of
the IEP team. Coomes does not argue that the District failed
to meet its initial burden and thus the burden shifts to Coomes
to demonstrate that genuine issues of material fact exist.
Before the district court and now on appeal, it appears
that Coomes neglected to designate specific facts in the
record demonstrating the existence of genuine issues of
material fact for trial. Although she argued below that her
duties “did not include battling with District representatives
over the special education rights of her students” and did not
“include speaking out on behalf of herself and her fellow staff
members about bullying and harassment by Meadowdale
administrators,” she cited only one piece of evidence to
establish the scope of her duties—her formal job description.4
Coomes’s conclusory statements about her duties and her
lone citation to the factual record were insufficient to meet
her burden to show that genuine issues of material fact exist.
See Bader v. N. Line Layers, Inc., 503 F.3d 813, 820 n.4 (9th
Cir. 2007) (“[B]are assertions of a legal conclusion, not
supported by any other ‘specific facts showing that there is a
genuine issue for trial,’” are insufficient to raise a genuine
issue of material fact. (quoting Fed. R. Civ. P. 56(e)).
4
For the first time on appeal, Coomes points to claims in her declaration
that she was “harassed” for “voicing [her] concerns” to parents and
ordered “not to share [her] opinions” to demonstrate that her speech was
not part of her employment responsibilities. We decline to address new
evidence cited for the first time on appeal to seek reversal of a lower
court’s summary judgment determination. See Pardi v. Kaiser Found.
Hosps., 389 F.3d 840, 848 n.4 (9th Cir. 2004) (quoting Bankamerica
Pension Plan v. McMath, 206 F.3d 821, 825 (9th Cir. 2000)).
14 COOMES V. EDMONDS SCH. DIST. NO. 15
“Where . . . the case turns on a mixed question of fact and
law and the only disputes relate to the legal significance of
undisputed facts, the controversy is a question of law suitable
for disposition on summary judgment.” Wash. Mut. Inc. v.
United States, 636 F.3d 1207, 1216 (9th Cir. 2011). Here,
Coomes failed to establish that there were any genuine issues
of material fact for trial, but rather focused her argument on
the relevant case law. As a result, summary judgment would
be appropriate if legally supportable.
B
Coomes describes her speech as relating to two topics—
the “illegal and improper treatment of vulnerable students in
the public school system” and “bullying and harassment by
Meadowdale administrators in retaliation for taking a stand.”
Coomes’s speech was transmitted to two distinct
audiences—District personnel and parents. We address
Coomes’s speech as directed to each audience in turn.
1
As we have explained, “whether or not the employee
confined [her] communications to [her] chain of command is
a relevant, if not necessarily dispositive, factor in determining
whether [s]he spoke pursuant to [her] official duties.”
Dahlia, 735 F.3d at 1074. Thus, “generally, ‘when a public
employee raises complaints or concerns up the chain of
command at [her] workplace about [her] job duties, that
speech is undertaken in the course of performing [her] job.’”
Id. (quoting Davis v. McKinney, 518 F.3d 304, 313 (5th Cir.
2008)).
COOMES V. EDMONDS SCH. DIST. NO. 15 15
In addition to this guiding principle from Dahlia,
Coomes’s job description and her declaration both shed light
on the factual question of the scope of her duties. Coomes’s
declaration states that she “was put in charge of the EBD
program” and “successfully managed the EBD program.”
According to her job description, Coomes was responsible for
assisting and supporting building staff regarding EBD
students, participating with staff to develop strategies to
address behavior problems, developing IEPs, providing
instruction within the EBD classroom, implementing positive
behavior supports for all students, and attending to the
physical and safety needs of students. Lastly, the job
description notes: “This position will have significant contact
with parents, students, and District staff requiring the ability
to work collaboratively with a variety of people.”
Based on the job description and declaration, the district
court concluded that “it was part of Coomes’s job as the IEP
manager and a member of the IEP team to point out failures
to abide by IEPs” and that “it was part of Coomes’s job as the
EBD teacher to communicate with administrators and parents
about her views on the placement and progress of EBD
students and appropriate management of the EBD program.”
As discussed above, Coomes has not identified sufficient
record evidence to demonstrate that an issue of fact exists
with respect to the scope of her duties.
Coomes’s speech to District administrators raised
complaints or concerns about poor treatment by the
Meadowdale administration and about potential
mismanagement of the EBD program. Coomes complained
about the administration’s treatment of teachers in an email
16 COOMES V. EDMONDS SCH. DIST. NO. 15
sent on March 26, 2010 from her to Carter and Nofziger.5
Coomes stated that she believed Avery created a “hostile
work environment” by targeting teachers who openly
disagreed with administrative decisions. Coomes noted that
she was a target of administration hostility because she
expressed concerns that EBD students who were ready to
move to mainstream classes were not moved or had moves
delayed based on financial considerations. She stated without
elaboration that this late mainstreaming practice was, “in
some opinions, unethical.” Coomes forwarded the email to
a group of other Meadowdale teachers, and it was eventually
forwarded to Avery.
In addition to complaints about treatment by the
administration, Coomes raised concerns about the
management of the EBD program in numerous
communications. For example, she emailed her union
representative and Assistant Superintendent Anthony Byrd
with concerns that students’ placements were inconsistent
with their IEPs and said that she wanted to put her concerns
on the record “before something seriously negative happens.”
Two days later, Coomes emailed Nofziger and Limon
claiming that Webster’s decision to mainstream EBD students
was not supported by research. She again referenced
discrepancies with student IEPs and stated that Meadowdale
5
Coomes copied her union representative on several of the relevant
emails to District administrators. Although Coomes’s counsel suggested
at oral argument that Coomes’s copying her union representative on
correspondence with District administrators might be significant, her
briefs in this court and below do not argue that communications with her
union fall into a separate category of communications that is outside the
scope of her duties. As a result, Coomes has waived any such argument
on appeal. See Chadd v. United States, 794 F.3d 1104, 1109 n.4 (9th Cir.
2015).
COOMES V. EDMONDS SCH. DIST. NO. 15 17
was not following “best practices” with respect to EBD
students.
Later that month, Coomes sent an email to Webster and
the rest of the team managing the EBD program expressing
concerns about a student’s placement and stating that the
student’s guardian did not agree with the placement.
In October 2010, Coomes emailed Nofziger, Limon, and
Carter to voice her concerns over a pending meeting with
Webster “regarding my students and program and my
continued distress over my current position.” She
complained that “everything” in her program was now
“dependent upon [Webster’s] approval,” and noted that she
was being denied the “ability to manage [her] students
programs.” She also asserted that in at least one instance
Webster inappropriately “de-escalat[ed]” a fight and put his
hands on an EBD student without proper training. Further,
she voiced her fear that she could not “protest any of this with
[Webster] as it has resulted in belittling comments and veiled
threats.”
On February 15, 2011, Coomes sent an email to Avery
and Webster regarding an incident with an EBD student that
had occurred the previous Friday, and which Avery, Webster,
and Coomes had apparently discussed. Coomes stated she
needed to ensure that her “professional input is recorded and
documented,” recounted that she had disagreed with the
choice to mainstream the student, and implied that if she had
been listened to, and the student had been placed in a more
restrictive environment, the incident would not have
occurred.
18 COOMES V. EDMONDS SCH. DIST. NO. 15
Viewing the evidence in the light most favorable to
Coomes, we conclude that her speech to Meadowdale and
District administrators is made up of the “complaints or
concerns” raised “up the chain of command at [Coomes’s]
workplace about [her] job” that this court has concluded are
generally not protected under Garcetti. Dahlia, 735 F.3d at
1074 (quoting Davis, 518 F.3d at 313).
Moreover, Coomes has failed to raise a genuine issue of
material fact with respect to the scope of her duties, and the
evidence indicates that her communication with District staff
about the implementation of IEPs and management of the
EBD program fell within her job duties as manager of the
EBD program. Therefore, we are satisfied that such speech
was made in her role as a public employee and is not
protected by the First Amendment.
2
Coomes also spoke to parents—clearly outside of her
chain of command. However, communicating with parents
about students’ IEPs and their progress in the EBD program
was part and parcel of Coomes’s job. Coomes’s own
declaration repeatedly emphasizes that her responsibilities
included collaborating with parents and encouraging parent
involvement in the IEP process. Indeed, one of her
complaints about the District’s activity was that it interfered
with the collaboration with parents that was part of her job.
In an email from Coomes to Webster—relating Coomes’s
discussions with parents regarding their children’s classroom
placements—Coomes implied she did not agree with the
placement choices being made, but also indicated that she
believed communicating with parents regarding placement
choices was part of her job. Coomes even stated in one of her
COOMES V. EDMONDS SCH. DIST. NO. 15 19
emails to Avery that “[a]s case manager, it is my role to talk
with parents about developments at school.” (emphasis
added). In her own self-assessment, Coomes stated that she
believed she had been successful in fulfilling her
responsibility to communicate with students’ parents and
guardians regarding “their students progress, needs, and
successes as well as changes in the program or expectations.”
Of course, even if Coomes’s duties as the EBD program
manager and instructor included speaking to parents
regarding their children’s participation in the program, she
could have gone outside her duties in speaking to parents
about other matters. However, Coomes has not pointed to
any record evidence indicating that her conversations with
parents went beyond discussion of IEPs and the
implementation of such IEPs within the District’s EBD
program. In fact, Coomes’s own declaration indicates that
the very “concerns” she voiced to parents, and which she was
“ordered” not to share, all involved her disagreement with the
District over its handling of students’ IEPs and management
of her EBD program. Her “concerns” regarded her objections
to the District’s process of mainstreaming students, and the
administration’s “refus[al] to pull [students] out of the
mainstream classes and allow them to be in the EBD
classroom.”
We therefore conclude that Coomes’s speech to parents
was within the scope of her duties and is not protected by the
First Amendment.
C
Even when construing the evidence in the light most
favorable to Coomes, her speech to her supervisors and
20 COOMES V. EDMONDS SCH. DIST. NO. 15
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’s First Amendment claim was proper.
IV
Coomes also contends that the district court improperly
granted summary judgment on her claim under Washington
law for wrongful discharge against public policy.
To determine whether a plaintiff has a cause of action for
this tort under Washington law, courts analyze:
(1) the existence of a “clear public policy”
(clarity element), (2) whether “discouraging
the conduct in which [the employee] engaged
would jeopardize the public policy” (jeopardy
element), (3) whether the “public-policy-
linked conduct caused the dismissal”
(causation element), and (4) whether the
employer is “able to offer an overriding
justification for the dismissal” (absence of
justification element).
Rose v. Anderson Hay & Grain Co., 358 P.3d 1139, 1143
(Wash. 2015) (citation omitted). As part of the “jeopardy
element,” Washington courts had required a plaintiff to
“show that other means of promoting the public policy are
inadequate.” Korslund v. DynCorp Tri-Cities Servs., Inc.,
COOMES V. EDMONDS SCH. DIST. NO. 15 21
125 P.3d 119, 126 (Wash. 2005), overruled by Rose, 358 P.3d
1139. Here, the district court relied entirely on Korslund’s
“adequacy of alternative remedies” analysis to dismiss
Coomes’s claim for wrongful discharge.
It turns out that, after oral argument in this appeal, the
Washington Supreme Court overruled Korslund in Rose.6
The state supreme court expressly discarded the “adequacy of
alternative remedies” analysis and held that “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.” Rose, 358 P.3d at 1141.
Because an intervening authority has overruled the
Washington state decision upon which the district court’s
analysis was based, we must vacate the district court’s
judgment with respect to Coomes’s claim for wrongful
discharge. See Huddleston v. Dwyer, 322 U.S. 232, 236–37
(1944) (“[A] judgment of a federal court ruled by state law
and correctly applying that law as authoritatively declared by
the state courts when the judgment was rendered, must be
reversed on appellate review if in the meantime the state
courts have disapproved of their former rulings and adopted
different ones.”).
We remand to the district court for consideration of the
wrongful discharge claim in light of Rose. However, because
we affirm the district court’s grant of summary judgment with
respect to Coomes’s claim under federal law, the district
court should first consider whether to continue to exercise its
supplemental jurisdiction. See 28 U.S.C. § 1367(c); Sanford
v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010)
6
We ordered supplemental briefing on the impact of Rose on this case.
22 COOMES V. EDMONDS SCH. DIST. NO. 15
(“[I]n the usual case in which all federal-law claims are
eliminated before trial, the balance of factors to be considered
under the pendent jurisdiction doctrine—judicial economy,
convenience, fairness, and comity—will point toward
declining to exercise jurisdiction over the remaining state-law
claims.” (citation omitted)).
V
For the foregoing reasons, the judgment of the district
court is affirmed with respect to Coomes’s First Amendment
claims and vacated with respect to her state-law wrongful
discharge claim. Each party shall bear its own costs on
appeal.
AFFIRMED IN PART, VACATED IN PART, and
REMANDED.