In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2729

ROBERT ZELLNER, a Wisconsin resident,

Plaintiff-Appellant,

v.

DARYL HERRICK, a Wisconsin resident,

in his official capacity as Superintendent

of the Cedarburg School District, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 2:08-cv-00315—Rudolph T. Randa, Judge.

ARGUED FEBRUARY 10, 2011—DECIDED APRIL 29, 2011

Before MANION, EVANS, and HAMILTON, Circuit Judges.

EVANS, Circuit Judge. Robert Zellner, a high school

biology teacher and former teacher’s union president,

was fired by his employer, the Cedarburg School

District, for allegedly viewing pornographic images on

his school computer in violation of District policy.
2 No. 10-2729

This claim is actually a Fourteenth Amendment claim. 1

We’ll refer to it as a due process claim as we move along.

Zellner, believing instead that he was fired because of

his union activities, filed a civil rights complaint under

42 U.S.C. § 1983 against Defendants Daryl Herrick, John

Pendergast, and Linda Borkenhagen, in their official

capacities, and the Cedarburg School District (we will

refer to the defendants collectively as “the District”),

alleging violations of his First and Fifth Amendment

1

rights. The district court granted the District’s motion to

dismiss with respect to Zellner’s due process claim and

the District’s summary judgment motion with respect

to his First Amendment claim. Zellner now appeals, and

we view the facts, as we must at this time, in the light

most favorable to Zellner.

Zellner worked at Cedarburg High School as a biology

teacher for nearly eleven years until his employment

was terminated on January 17, 2006. At all relevant times

Jay Grieger was the Principal of the high school and

Zellner’s immediate supervisor. Herrick has been the

Superintendent of the District since July 1, 2002.

Pendergast, elected to the School Board in the spring

of 2004, has been School Board President since 2005.

Borkenhagen is the Director of Technology for the District.

Because Zellner asserts that he was fired as a result of

his union activities, we begin with the years of animosity

between the Union and the District leading up to

Zellner’s termination. While employed by the District,

Zellner was an active member of the Cedarburg Educa-
No. 10-2729 3

tion Association (the “Union”). In the fall of 2003, Zellner

became the president of the Union, serving in that

position for two years. From 2005 until his termination,

Zellner was the Union representative for the high

school. Before, during, and after Zellner’s term as

Union president, relations between the Union and the

District were plagued.

In 2003 Herrick recommended that the School Board not

renew Principal Grieger’s employment contract. The

Board, however, rejected Herrick’s proposal by a vote

of four-to-three. Shortly thereafter, Zellner and 58 other

high school staff members published a statement in a

local paper that criticized Herrick and the Board for

trying to oust Grieger. Later, Zellner was quoted in a

local paper saying that Herrick and the District were

creating an “atmosphere of uncertainty, distrust and

intimidation between the district administration and

the [high school] staff.”

Zellner, in his capacity as Union president, refused to

agree to Herrick’s proposed Qualified Economic Offer

(“QEO”) that resulted in salary reductions for Cedarburg

teachers, making them among the lowest paid in the

area. Zellner also facilitated a “District Leadership

Survey Report” in which Union members evaluated the

performance of administrators. The report was extremely

critical of Herrick. When Zellner attempted to present

the report to the School Board, Herrick directed Board

members not to open the report.

Following a contentious contract negotiation session

between the Union and School Board, Herrick warned
4 No. 10-2729

Zellner that “the gloves would come off” if the Union

did not back down. He also informed Zellner that a

“prominent member of the community” had claimed

Zellner was into pornography, but that because it was not

school-related, he would not report Zellner at that time.

In December 2004, Zellner, as Union president, publicly

spoke in opposition to the creation of a task force by

Herrick because Principal Grieger and volunteer teachers

were not allowed to participate. A month before Herrick’s

contract was up for renewal, Zellner informed Herrick

that the Union had secured a “no confidence” vote

in his leadership by some 95 percent of participating

teachers. The vote was discussed at several school board

meetings in 2005.

In January 2005, in his capacity as Union president,

Zellner issued a press release titled, “District Teachers

Vote ‘No Confidence’ in . . . Herrick,” and held a press

conference on the same subject. Articles on the Union’s

position, and Herrick’s response, were published in

the Milwaukee Journal Sentinel and the Cedarburg News

Graphic.

Shortly thereafter, the School Board required that Union

representatives, including Zellner, meet with Herrick,

members of the District leadership team, and the

Board, for the stated purpose of attempting to improve

relations between the Union and the District. A meeting

was held on January 24, 2005, and all parties agreed that

it would be “off the record,” and no notes would be

taken. After the meeting, Herrick sent an e-mail to

Pendergast (who missed part of the meeting) summarizing what had occurred.
No. 10-2729 5

Following the meeting, a citizen made an open records

request, and the District produced the e-mail between

Herrick and Pendergast. In the e-mail, which Zellner

believes breached the “off the record” agreement, Herrick

stated that the teachers gave him an ultimatum to

accept only a one-year contract and told him the Union

would not work with him if he agreed to renew for two

years. Upon receiving the e-mail, the citizen wrote to

the Ozaukee County Sheriff and District Attorney complaining about the Union’s ultimatum and asking them

to investigate whether it violated any laws. An article

was also published in the Milwaukee Journal Sentinel

discussing the e-mails and the potential investigation.

Soon after the meeting, the Board offered Herrick—and

he accepted—a new two-year contract. In April 2005,

all incumbent Board members were re-elected, giving

them what they considered to be a “tough” mandate in

dealing with the Union. By June, the Board and the

Union had not reached an agreement on the Collective

Bargaining Agreement for 2003-2005, and the Board

implemented a second QEO resulting in further salary

reductions, again making Cedarburg teachers among

the lowest paid in the area.

In August 2005, Zellner’s term as Union president

ended, but he still remained involved in union activities

until his termination. Relations between the Union and

the District remained volatile, but Zellner did not

speak out publicly or talk with Herrick or Pendergast

personally regarding Union issues any time after

February 24, 2005.
6 No. 10-2729

On December 15, 2005, the Milwaukee Journal Sentinel

published an article entitled, “Cedarburg Losing More

Teachers—Some Cite Low Pay, Politics at High School.” In

the article Zellner is reported as saying, “When you start

losing veteran teachers to retirement that is one thing,”

but “when younger teachers leave, it’s a real warning.”

Zellner claims that Herrick and Pendergast were aware

that he was interviewed (they were also interviewed

for the article) and that they knew what he said.

Significantly more relevant to Zellner’s termination is

the fact that on August 15, 2005, the School Board

updated its computer usage policy entitled, “Employee

Access to Networked Information Resources” (the “Policy”). Zellner signed off on the updated Policy, acknowledging that he was responsible for compliance with it

and that violations could result in a loss of access

and/or disciplinary action. Included in the Policy is a

rule notifying employees that their computer usage

is not private and may be monitored. The Policy specifically states that “accessing, sending or displaying

offensive messages, pictures or child pornography” is

strictly prohibited. The Policy also states that the

“network administrator will report inappropriate

behavior to the employee’s supervisor who will take

appropriate disciplinary action.”

In November 2004, the District’s technology department had reimaged (wiped clean) a number of district

employees’ computers because of complaints of “spyware”

and “popups.” Zellner’s school computer was reimaged

at this time, and Borkenhagen, as we said the District’s
No. 10-2729 7

According to the Policy, Borkenhagen must report all 2

“inappropriate behaviors,” “violations” or “complaints” to the

employee’s supervisor, in this case, Grieger. At this time,

however, Zellner had not been accused of violating a policy.

Director of Technology, was aware of the reimaging.

Almost ten months later, in late August 2005, Zellner

reported that his computer had “gone crazy,” and he

was unable to use it. Zellner’s computer was again

reimaged. Jeanne Dries, the IT technician who reimaged

Zellner’s computer, told Borkenhagen that Zellner’s

computer was very messed up and that in her opinion

it “doesn’t get that way without some behavior that—

going to sites that were questionable.” Borkenhagen

reported to Herrick, her supervisor, that Zellner’s computer had to be reimaged a second time. Borkenhagen

did not notify Grieger, Zellner’s immediate supervisor.2

After Herrick learned about the second reimaging, he

directed Borkenhagen to place monitoring software

on Zellner’s computer. The software continually logged

Zellner’s computer activity, but the results were not

viewable unless they were specifically accessed. Borkenhagen initially checked the log every day, but after a

while she checked with decreasing frequency. Zellner

acknowledges that the District had the right to place

monitoring software on his computer.

On Sunday, November 6, 2005, Zellner was at school

working on his class plan and used his school computer

to conduct a Google Image search. First, Zellner disengaged the “safe search” filter. He then typed “blonde” into
8 No. 10-2729

the Google search box. The search produced 20 “thumbnail” images, all of them pornographic, with links to

more images within and outside the Google website. He

then clicked to display the next 20 images. Zellner then

clicked a link entitled “more of these” adjacent to images

from www.ardentes.free.frblonde.com. When Zellner

did so, another 20 pornographic “thumbnail” images

were displayed on his monitor for a total of 17 seconds.

Zellner did not click on any of the photographs

displayed in his search. The entire incident took 67 seconds.

In early December Borkenhagen viewed the log

from Zellner’s November 6 search. She was alerted by

the search term “blonde” in Zellner’s activity log.

Borkenhagen recreated Zellner’s activities, which

Zellner admits are accurate. Shortly after Borkenhagen

discovered the search, she informed Herrick and gave

him the accurate log of what happened. Herrick relayed

the information to Pendergast.

On December 20, 2005, Herrick and James R. Korom

(the District’s legal counsel) met with Zellner and his

union representative, Patrick Connolly, to discuss

Zellner’s November 6 Google Image search. The meeting

was not recorded. Zellner was first asked to confirm

the details of his “blonde” search, and that the images

obtained by recreating his search were accurate, which

he did. Zellner was then asked if he had performed

similar searches in the past, and he confirmed that he

had. According to Herrick, Zellner’s response was “not

more than monthly.” According to Zellner he responded,

“once in that month.” Furthermore, he admitted that
No. 10-2729 9

he had accessed pornography on a District computer

five or six times over several years. Zellner also conceded that his actions on November 6 were a violation

of the District’s Policy and legitimate expectations.

At the meeting, Zellner offered to sign a last chance

agreement or resign at the end of the school year. Herrick

did not accept these offers and instead gave Zellner

the option to resign immediately or have the matter

put before the School Board. The meeting ended with all

parties understanding that Zellner would have an extended period of time to decide whether to resign or go

forward with a hearing. All parties also understood

that ultimately only the School Board could decide

Zellner’s fate. Subsequently, Herrick learned that

Zellner had decided not to resign. Herrick, Korom, and

Pendergast then conferred by telephone and decided

the School Board would hold a disciplinary hearing in

January.

As School Board President, it was Pendergast’s responsibility to determine whether the meeting would be an

open or closed session. Pendergast knew that Zellner

had requested a closed hearing, and although he did not

know the exact details of the evidence—only that the

District had discovered what it said was pornography on

Zellner’s computer, about a week before the January 17

hearing, he decided it would be an open session. He did

so knowing that, given the subject matter, an open

hearing would likely damage Zellner’s reputation.

According to Zellner, the long-standing practice of the

School Board was not to identify an employee by name,

or describe charges in advance of a disciplinary hearing.
10 No. 10-2729

The photos were taken by students while in Hawaii for a 3

biology trip and were used for the school yearbook. Pendergast

admitted that none of the photos of students were inappropriate and that Zellner could no longer access the photos as

they had been deleted. 

However, the notice of hearing published by Pendergast

identified Zellner by name and described the charge

against him as misuse of a School District computer.

There was no mention of pornography in the notice.

Before the hearing, Herrick asked Borkenhagen to find

a forensic analyst to inspect Zellner’s computer to determine if there was any other inappropriate content

which had been deleted. Borkenhagen hired a firm

which returned a disk of files found on the hard drive.

Borkenhagen gave the disk to Herrick, and, at Herrick’s

request, printed out the images.

Herrick and Korom prepared charges which were sent

to Zellner via certified mail, but were otherwise not

released to anyone prior to the meeting. Paragraph 5(g) of

the charges reads as follows: “[Zellner] selected one

photo from the second page of his search results, and

accessed the website entitled ‘ardentes.free.frblonde,’ and

then reviewed images on that pornographic website.”

Paragraph 7 of the charges states that “[a]nalysis of

Mr. Zellner’s computer revealed additional evidence.

Among other images, Zellner had retained photographs

of female students of the District wearing bikinis

while on a school-sponsored trip to Hawaii” that

Zellner chaperoned.3
No. 10-2729 11

On January 17, 2006, the School Board held a hearing

regarding the charges against Zellner. Zellner was represented by Union counsel, the administration was represented by Korom, and the School Board had its own

counsel present. Zellner was given an opportunity to

prepare and present evidence. Herrick testified on

behalf of the District, and Zellner called Connolly as a

witness to testify on his behalf about what happened in

the December 20 meeting. Zellner chose to read a statement to the Board instead of testifying. In his statement, Zellner neither offered an excuse for his actions

on November 6, nor denied the charges. He merely

stated, “I am truly sorry for what happened,” and “I know

I used poor judgment in this case. I made a mistake and

it will never happen again.” (In his original complaint,

Zellner claims that he ran the search to report to the

IT department what students could access via school

computers. However, because he didn’t testify, the

School Board never heard this version of events, or

what his intent was in accessing the images.) At the

conclusion of the hearing, the Board deliberated in

closed session for a few hours. It considered various

reprimands, and ultimately determined that termination was the appropriate course of action.

After the School Board terminated Zellner’s employment, he filed a grievance which went to arbitration. The

arbitrators found that Zellner violated the District’s

Policy, but rescinded the termination. The School District

refused to abide by the arbitration decision. Zellner

then filed a lawsuit in Wisconsin Circuit Court seeking

confirmation of the arbitration award. Both the Circuit
12 No. 10-2729

Court and the Wisconsin Court of Appeals found that the

School Board’s termination was supported by just cause.

The bottom line was that the arbitrators’ award was

reversed. Zellner’s termination was upheld.

Zellner then filed this suit in federal court. The court

granted the District’s motion to dismiss with regard to

Zellner’s due process claim, finding that he failed to

plead it was virtually impossible for him to find new

employment. Subsequently, the court granted the

District’s summary judgment motion with respect to

Zellner’s remaining First Amendment claim, finding he

failed to prove that his union activities were the “but for”

cause of his termination, and that he failed to prove

the November 6 Google Image search was a phoney

pretextual reason for his termination.

We review de novo the district court’s grant of the District’s Federal Rule of Civil Procedure 12(b)(6) motion to

dismiss. Opp v. Office of State’s Attorney of Cook County,

630 F.3d 616, 619 (7th Cir. 2010). To survive a motion

to dismiss, the plaintiff must do more in the complaint

than simply recite elements of a claim; the “complaint

must contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’ ”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We

also review the district court’s grant of summary judgment de novo. Nemsky v. ConocoPhillips Co., 574 F.3d 859,

864 (7th Cir. 2009). Summary judgment is appropriate

where the admissible evidence shows that “there is no

genuine dispute as to any material fact and the movant
No. 10-2729 13

is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). “A genuine issue of material fact arises only

if sufficient evidence favoring the nonmoving party

exists to permit a jury to return a verdict for that

party.” Faas v. Sears, Roebuck & Co., 532 F.3d 633, 640-41

(7th Cir. 2008) (internal quotation marks omitted).

On appeal, Zellner first argues that the court incorrectly

dismissed his due process claim because it did so sua

sponte. A complaint may be dismissed for failure to state

a claim pursuant to Fed. R. Civ. P. 12(b)(6) “only if ‘it

appears beyond a doubt that the plaintiff can prove no

set of facts in support of his claim which would entitle

him to relief.’ ” Ricketts v. Midwest National Bank, 874

F.2d 1177, 1183 (7th Cir. 1989) (internal citations omitted).

Zellner correctly notes that we do not encourage

district courts to dismiss claims sua sponte. Instead, we

strongly encourage giving a party notice of an intention

to dismiss and an opportunity to respond. But Zellner’s

argument misses the mark.

Even if Zellner were able to prove “all of the other

elements necessary to make out a claim of stigmatization . . . the remedy mandated . . . is ‘an opportunity to

refute the charge’ ” against him during a hearing. Codd

v. Velger, 429 U.S. 624, 627 (1977). The purpose of a

hearing is to provide the person “charged” with an opportunity to clear his name. Id. Here, Zellner unquestionably received a hearing and was given an opportunity

to clear his name. The School Board held an open

hearing at which Zellner was allowed to present

evidence and witnesses to tell his side of the story—but
14 No. 10-2729

he decided not to testify. Instead, he read a statement

in which he did not dispute the charges against him,

but only apologized. Zellner has already received all

the relief he is entitled to, and therefore his due process

claim fails.

As to the summary judgment decision with respect to

his First Amendment claim, Zellner argues that he established a prima facie case of retaliation as well as evidence

of pretext. The First Amendment prohibits a public employer from retaliating against an employee for engaging

in protected speech. See Callahan v. Fermon, 526 F.3d

1040, 1043-44 (7th Cir. 2008). To make out a prima facie

case of First Amendment retaliation, a plaintiff must

present evidence that: (1) his speech was constitutionally protected; (2) he has suffered a deprivation

likely to deter free speech; and (3) his speech was at least

a motivating favor in the employer’s action. Massey v.

Johnson, 457 F.3d 711, 716 (7th Cir. 2006). In other words,

the plaintiff bears the burden of proving “but for” causation. Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343,

2350 (2009); Fairley v. Andrews, 578 F.3d 518, 525-26 (7th

Cir. 2009) (applying Gross to First Amendment claims

under 42 U.S.C. § 1983).

Once a plaintiff demonstrates that an improper

purpose was a motivating factor, the burden shifts to the

defendant to show that the same decision would have

been made in the absence of the protected speech. Massey,

457 F.3d at 717. If the defendant carries that burden, the

plaintiff must then demonstrate that the defendant’s

proffered reasons for the decision were pretextual and
No. 10-2729 15

that retaliatory animus was the real reason for the decision. Id. At the summary judgment stage, this means

a plaintiff must produce evidence upon which a

rational finder of fact could infer that the defendant’s

proffered reason is a lie. Vukadinovich v. Board of School

Trustees, 278 F.3d 693, 699 (7th Cir. 2002).

Zellner argues that the history of animosity between the

Union and the District—culminating in the December 15

publication of the Milwaukee Journal Sentinel article, in

which Zellner was critical of the District—is ample

support that “but for” his union activities he would

not have been terminated. But “the fact that a plaintiff’s

protected speech may precede an adverse employment

decision alone does not establish causation.” Mullin v.

Gettinger, 450 F.3d 280, 285 (7th Cir. 2006). While it is

abundantly clear that the relationship between the

Union and the District was contentious, combative, and

miserable, and that Zellner and the District played a

central role in the relationship, Zellner ignores the discovery of his November 6 Google Image search. It is

undisputed that the search violated the District’s

Policy, that Zellner admitted that he performed the

search, and that he knew he violated the Policy. Accordingly, the School Board had a legitimate, non-discriminatory reason to terminate Zellner’s employment.

Zellner argues that the only reason the Board had the

information was because Borkenhagen improperly reported his violation to Herrick instead of Zellner’s direct

supervisor, Grieger. But this argument is a non-starter. It

doesn’t really matter to whom Borkenhagen reported

Zellner’s conduct. Zellner violated the District’s Policy
16 No. 10-2729

by viewing pornographic images on his school computer,

the violation had nothing to do with his union activities,

and the School Board found that this violation should

result in termination. Accordingly, the district court

correctly ruled that no jury could find that “but for” the

plethora of Zellner’s union activities and statements,

the School Board would not have terminated his employment. Zellner’s prima facie claim thus failed on the

element of causation.

Moreover, even if Zellner had proved causation, the

burden shifts to the District to show that the same

decision would have been made in the absence of

Zellner’s union activities. See Valentino v. Village of South

Chicago Heights, 575 F.3d 664, 670 (7th Cir. 2009). Here,

Zellner runs into the same problem—he directly and

knowingly violated a School Board Policy. He admitted

as much in front of the Board at his hearing and

apologized for his actions. Zellner thus failed to establish proof that the Google Image search was a pretext

for firing him. Without evidence that some other

teacher violated the Policy in a similar way and received

a milder sanction, Zellner’s “but for” case rests on conjecture. Accordingly, he cannot rebut the District’s legitimate, non-discriminatory reason for his termination.

The judge correctly granted the District’s motion for

summary judgment with respect to Zellner’s First Amendment claim.

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

4-29-11