                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 20 2011

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




                            FOR THE NINTH CIRCUIT



STELLA SATTER,                                   No. 10-36131

              Plaintiff - Appellant,             D.C. No. 3:09-cv-05645-BHS

  v.
                                                 MEMORANDUM *
STATE OF WASHINGTON
DEPARTMENT OF ECOLOGY;
KENNETH SLATTERY,

              Defendants - Appellees.



                    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.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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


                                           3
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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