superintendent dr bill reichardt to the board president for impermissibly allowing a student of squire academy to bring cigarettes to school this all we were speaking as a citizen and not as a public employees because she was not expected as part of her duties to report the superintendent's misconduct to the board president the court below erred when it found that because her duties included among other things enforcement of student handbook policies for students at manchester high school that her report to the board president was a part of her duties and therefore she was speaking as a public employee the court disregarded the fact that miss already had no administrative responsibility for or authority over squire academy squire academy was an alternative school set up by the superintendent whose administrator dorothy moxley was answerable only to the superintendent with respect to the issue of whether voluntarily resigned she did not dr reichardt contraire into believing that because he felt she was not trustworthy she should resign is that is the key fact in your argument there that her complaint was and miss already reacted to that by suspending students miss already would have had no authority to suspend the student there in question because she had no authority over squire academy students whatsoever don't affiliate or a related i know there was good although the only relationship your honor was that they were physically housed in the same building however they had their own chain of command structure that is the director oddly reported directly to the superintendent with respect to the issue of whether missile reviling turly resigned she did not like it said dr reichardt condor into believing that she was not trustworthy the court below applied an invalid  concluded that miss already had voluntarily resigned the court reason that when dr reichardt asked her to resign this already had a genuine choice of say no but because she didn't progressive nation was voluntary the court failed to consider that the so called choice was a false choice and therefore not a real voluntary choice simply put if the executive the chief executive of any organization asked for your resignation she expects you to tender your resignation and that is not a voluntary resignation how does that fit with the statutes providing due process rights to indian it educators reviewed right correct your own so we have case law cited by the district court that looks to me squarely on point here and the you did not address in your brief the pulk a case for example on the due process issue and the voluntary or involuntary rizzi resignation of it apologize for the deficiency your honor but i thought i did address it focusing on the point of whether or not her resignation was truly voluntary because if it was not voluntary then you get to the due process issue but the question  before the district court and before this court is whether or not her resignation was truly voluntary if it was not then she was denied due process if it was then certainly the pocket case does apply but the pocket case talked about voluntary resignation did not address involuntary resignation well you know our case law we've talked about what would what might make  resignation call worst the threat of criminal prosecution correct we don't have anything like this here what we have is a disagreement on policy matters and following the chain of command are not right well i did not address the question of coercion because we're not arguing that she was quote coerced into it we're simply saying that given all of the circumstances of the resignation his previous expressed anger toward her his previous effort to try to reprimand her for his questioning her of her license not once not twice but three times when in fact he didn't question the other two compared to as matt carver or heidi's lofton at all about their licensing discrepancies all of those circumstances would could lead reasonable juror to conclude that yes he wanted her to resign so as to get rid of her and the motive be all that he had much as a parent right that doesn't make a voluntary resignation involuntary the fact that the supervisor is being heavy handed we're not comparing it to voluntary or involuntary your honor we're simply saying that the that is an argument you're making this is involuntary it's not an either or your honor we're we're saying is that it was not voluntary that doesn't involuntary that's your argument yes you and we've recognized only a very limited circumstances under which a resignation would be considered involuntary there's a permutation that i would argue on that point your honor and that is it doesn't mess it is not a zero sum gain that is a resignation that is not voluntary does not necessarily mean involuntary it could be obtained through deception it could be obtained through a promise of something else and given you know all the circumstances under which she resigned we argued that she was basically given the choice of fight or flight she was a very intimidating meeting atmosphere and she had previously come under the gun you know dr reichardt and taking the cost relation of the circumstances i think would any reasonable juror could find you know that her resignation was not voluntary and then that begs the question why why was he trying to get her to resign and that is because you know she had told on him to the board president is it correct the story that the superintendent changed his mind about those possession of cigarettes question yes your honor this you did so the very same day that the board president called him out on it before or after she called after she called you i thought this is the i think the defense was telling us  when she learned you know that he had done that that's when she called the board president i would like to reserve a couple of minutes for rebuttal you'll have forty nine seconds thank you already voluntarily resigned therefore waiving procedural protections available to her and miss all we did not engage in protected speech when she spoke in her capacity as a public employee and not as a private citizen  separate program under the school board it was housed in the same building that had some very classrooms and the ministry of offices at the time that the relevant fence happened there was a bit of knowledges that at that point it was a good question regarding what the structure was with respect to our cabin your guards even if miss already did not have direct responsibility for students it's work out of me what is important submitted in opposition to summary judgment that she said she took part the reason she was angry because it sent a message to students and staff regarding breaking the rules so it is it is conceivable to see a situation where other students other staff understand that there is an exception that's been made to student him but policy and that can create some sort of chaos in the system and that that may actually have an effect on direct effect on missile rays job responsibilities so the speech in question was indeed centered on things that were intimately related with her job duties with respect to whether or not she was reporting misconduct st of all there was no misconduct in this case d reichert did not violate any school board policies he actually had specific authorization under school board policy to make discretionary decisions regarding discipline to quote help a student that is exactly what happened here school board policy did not have any prohibitions against the use or possession i'm sorry possession of tobacco the school board policy it was only about use of tobacco where the such that some other teacher a one teacher who has the same complaint on to the school board president could be protected i know you are and i don't believe that would be the case and that the reason for that is if you look at law that talks about whether or not it's in the scope of employment there have been cases for example there isn't more than just read below a case where a teacher reported about a fellow teacher that had a criminal history that had previously a school and they said well now that's not directly within your scope of teaching however that isn't within the course and scope of your employment and you're speaking as as an employee at that point so you sort of look at the broad strokes of what these public employees are hard for to do and in the cases that talk about police officers is that there's a general duty to protect public safety well for school employees there's a general duty to advance the educational mission something like that i mean if it were to the school board and complain about budgetary matters that could potentially be an issue where you are speaking as a private citizen not as a public employee but in this case what we're looking at is the discretionary decision about one particular student a disciplinary decision for one student and that is is much different than something about broader budgetary matters or something like that which which have much greater public import  then disciplinary situation for one particular student something quite frankly could not have been disclosed to the public under student privacy laws and isn't something that the school board could have sat in public meeting and discussed because particularly in a smaller community like what we have here would have been very easy for people to figure out who this student was and that was discussed in a public forum response i got a question for you i know you don't think it's a case here so just take it is hypothetical ok suppose that the school board did face a credible somebody was constructively discharged you know the situation was so bad that any reasonable person would have would have resigned in that circumstance is there any whether in state law or local law any process that available to an employee in that situation that sure is a matter of fact they resigned and they didn't get a letter saying you're terminated but you know anybody in that situation would have resigned or is it or do they just have to resort to litigation well all employment action is subject to board approval also in this case for example the resignation to go to the school board so although it rarely happens it is possible for a school board to not accept that resignation it information comes to their attention  that led to the resignation raised serious concerns not only for the school district well as for the indiana department of education is there any evidence that it was pretextual in other words that she doesn't that she doesn't hold the qualifications to her to have it's like a ten get that license she would have had to have sixty graduate credit hours to be qualified for that license and she admits that she did not have that and in fact she agreed with the department of education asked her do we have permission to correct your license use she consented to t raises a lot of serious concern to me that there needs to be a ballot administrators licensed teacher evaluations to student expulsions and to have someone in a position like that that didn't have a valid license to do those things it was a serious problem and it wasn't just the concern of a doctor right it was the concern of staff counsel the union apartment education too who in her deposition noted that she had no knowledge of any of the speech issues that had gone on a couple of months prior to malev and weeks prior all this coming up so i think the important thing to know in this case is although there's been a lot of focus obviously because of where the district court went on whether or not missile are you speaking as a private citizen or public employee clearly issues being as a public employee but also if you look at all the other elements of retaliation her claims fail on each and every element so we would get causation there and what i what evidence is there causation scant evidence quite frankly that's the fact that the speech happened before licensing in so this conversation did happen they did not resign they did not for their resignation but those conversations did happen so in those situations are dramatically different so looking at that there's no are just a couple of rebuttal points of the speech that they relied on the defendants relied on i'm sorry the point that they made about her deposition testimony where she got angry dispute because that particular entry was on her license at the time that dr reichardt had asked her to serve as assistant principal he was only after she reported his conduct to the board that it became an issue  for him that he took action on a so he trusted her you know before she reported to the board but it was only after she reported to the board president that he said i don't trust you thank you