                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 11 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MARK A. ZANDBERG,                                No. 09-35443

              Plaintiff - Appellant,             D.C. No. 2:08-cv-00570-JCC

  v.
                                                 MEMORANDUM *
EDMONDS SCHOOL DISTRICT NO. 15
and MARLA MILLER,

              Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Western District of Washington
                   John C. Coughenour, District Judge, Presiding

                              Submitted May 6, 2010 **
                                Seattle, Washington

Before: WARDLAW and GOULD, Circuit Judges, and MILLS, District Judge.***

       Mark Zandberg appeals the district court’s grant of summary judgment in



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Richard Mills, United States District Judge for the
Central District of Illinois, sitting by designation.
favor of the Edmonds School District (“School District”). We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

      1. 42 U.S.C. § 1983 Claim

      The district court properly concluded that Zandberg failed to raise a genuine

issue of material fact as to whether the School District took an “adverse

employment action” against him in retaliation for the exercise of his First

Amendment rights. See Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013,

1019 (9th Cir. 2004) (de novo review); Coszalter v. City of Salem, 320 F.3d 968,

973 (9th Cir. 2003) (to state a First Amendment retaliation claim against a

government employer an “adverse employment action” must be demonstrated).

Viewed in the light most favorable to Zandberg, none of the School District’s

actions were “reasonably likely to deter” him from engaging in protected speech.

See id. at 970. The Letter of Direction issued by the School District to Zandberg

and the School District’s subsequent communications with him served as guidance

for future expression of personal opinion and for communications prepared on

behalf of the School District. In directing Zandberg to “clearly distinguish

personal opinion from communication on behalf of the district,” the School

District’s Letter of Direction stated that it “respects the right of individual

employees to express personal opinions.” Further, Zandberg’s supervisors


                                            2
explained to him that the Letter of Direction required Zandberg to request approval

only for communications prepared on behalf of the School District that lent

themselves to “editorializing.”

      2. Wrongful Discharge Claim

      The district court also correctly concluded that no genuine issues of material

fact, viewing the facts in the light most favorable to Zandberg, exist as to his claim

of wrongful discharge under Washington state law. As the district court

concluded, there was no evidence the School District took deliberate action to

make Zandberg’s working conditions so intolerable that a reasonable person would

have felt compelled to resign. See Universal Health Servs., Inc., 363 F.3d at 1019

(de novo review); Washington v. Boeing Co., 19 P.3d 1041, 1049 (Wash. Ct. App.

2000) (test for constructive discharge). To the contrary, the evidence shows that

Zandberg voluntarily resigned, which conclusively defeats his claim for wrongful

termination. See Molsness v. City of Walla Walla, 928 P.2d 1108, 1110 (Wash. Ct.

App. 1996).

       AFFIRMED.




                                           3
