Clay v. Greendale School District et al

Filing 21

ORDER signed by Judge J P Stadtmueller on 5/6/2022. 14 Defendants' Motion for Summary Judgment is GRANTED. Plaintiff's federal law claims under Title VII and the First Amendment are DISMISSED with prejudice. The Court DECLINES to exercise supplemental jurisdiction over Plaintiff's state-law claim for tortious interference, which is DISMISSED without prejudice. CASE DISMISSED. See Order. (cc: all counsel)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ROBERT CLAY, JR.,
Plaintiff,
v.
GREENDALE SCHOOL DISTRICT,
KIMBERLY AMIDZICH, and JULIE
GROTOPHORST,

Case No. 21-CV-66-JPS

ORDER

Defendants.
1.

INTRODUCTION
On January 14, 2021, Plaintiff Robert Clay, Jr. (“Clay”) filed the

present civil rights action, alleging that Defendants wrongfully terminated
him from his public-school teaching position. ECF No. 1. On March 1, 2022,
Defendants filed a motion for summary judgment. ECF No. 14. That motion
is fully briefed, and the Court will grant it.
2.

LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, the “court shall grant

summary judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of
law.” Id.; Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A “genuine”
dispute of material fact exists when “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The Court construes all facts and
reasonable inferences in a light most favorable to the nonmovant. Bridge v.
New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). In assessing

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the parties’ proposed facts, the Court must not weigh the evidence or
determine witness credibility; the Seventh Circuit instructs that “we leave
those tasks to factfinders.” Berry v. Chi. Transit Auth., 618 F.3d 688, 691 (7th
Cir. 2010).
3.

RELEVANT FACTS1
3.1

Clay’s Employment with the Greendale School District

Clay first began employment with the Greendale School District (the
“District”) on approximately January 3, 2018 as a French teacher. Initially,
Clay was a part-time employee while another teacher was on maternity
leave. Following the teacher’s maternity leave, Clay continued to work as a
substitute teacher for the remainder of the school year. That summer, Clay
also taught in the District’s 2018 summer enrichment program, which
ended in August 2018.
Clay was re-hired with the District for the 2019–2020 school year as
a part-time French teacher. His supervisor was John Weiss (“Weiss”), who
had been principal of Greendale Middle School since 2008. Weiss, as
principal, would generally speak with Clay, for any reason, a couple of
times a week.
3.2

Classroom Interaction and Subsequent Investigation

As part of his duties, Weiss investigates concerns regarding teacher
behavior and performance. Following an investigation, Weiss shares the
information with the Human Resources Director, Julie Grotophorst
(“Grotophorst”).

The parties submitted a stipulated statement of undisputed material facts.
ECF No. 15 at 2–9. For purposes of summary judgment, the Court will adopt the
stipulated facts with minor, non-substantive edits.
1

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On December 3, 2019, some students in Clay’s class returned from a
field trip that involved seeing a play. The students who had been on the
field trip were dressed up. Clay commented that the students were all
dressed up that day. The students (jokingly) told Clay that they were going
to a wedding, and one student added that her female friend in the class was
going to be her husband. Clay then commented to the female student who
had been identified as the “husband” that he did not know she was a boy.
Multiple students responded by saying “you can’t discriminate” or “that’s
discrimination” and similar remarks. Both Clay and the students described
the conversation as playful or light-hearted.
On the evening of December 3, 2019, Clay sent an email to seven
students from his French class. He sent the email only to the same students
with whom Clay had the discussion in his classroom earlier in the day. Clay
sent the email using his District email account, which was delivered to the
students’ District email accounts. Generally, teachers email students using
the District’s email system for curriculum or instruction related purposes.
The students did not ask for Clay to email them, and Clay did not notify
anyone in the District’s administration, including Weiss, that he was
emailing students about the conversation that took place in the classroom.
Clay’s email, with the subject line “dans notre classe de français”
(translated “in our French class”), states,
Bonsoir,
Your effort and participation in French today was ‘au top’!
My message was light on instruction, because the 6th hour
Frenchies were on a field trip, hence, I think the online activity
was okay during so many absences.
On a different note, I want to address the playful conversation
in the back row about gay marriage. When a student
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mentioned my ‘discrimination’ I want to share that words
were placed in my mouth. I support all of my Frenchy
students. You all offer me insight about your background and
family history!
But if you were asking me to support LGBT marriage, that is
an issue that I definitely oppose. Alas, it is my belief that does
not change with pop culture.
In closing, a few years ago—when you were in elementary
school—the majority of Californians voted on two occasions
against the legalization of this marriage. These millions of
people I agreed with in their abjection. More recently, the
Supreme Court voted 5 to 4 that LGBT marriage should be
legal.
With that said, it is best in society that we respect one
another’s differences.
Best,
Monsieur Robert
ECF No. 20. Prior to sending this email to students, Clay did not notify
Weiss that he felt as though he had been accused of discrimination.
The email that Clay sent was outside of the context of his class. It was
not sent in response to any questions raised by the students, and it was not
related to Clay’s French curriculum. Clay’s French curriculum consisted of
French language lessons and did not include general politics or gay
marriage. Although Clay’s comments regarding same-sex marriage were
not related to his job duties, Clay sent the email in response to the students
accusing him of discrimination earlier that day.
Weiss became aware of the email the following morning.
Approximately six students came to Weiss’s office to discuss the email that
they received. The students were upset by the email and were concerned
that they had received it. Following receipt of the students’ concerns, Weiss

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received parent complaints about the inappropriateness of emailing a
specific group of students, the content of the email, the opinion shared by
Clay, as well as one parent stating that their student felt uncomfortable
returning to the classroom.
After his discussions with the students, Weiss escalated the issue to
Grotophorst. Weiss escalated the issue because he believed that the contents
of Clay’s email were outside the scope of Clay’s French class and because
some students had expressed concerns about feeling safe and returning to
the classroom. Weiss and Grotophorst had a meeting to discuss Clay’s email
and then decided to meet with Clay as the next step in the investigation in
order to get his version of the events.
In meeting with Clay, Weiss did not feel as though Clay understood
that his email was inappropriate. Grotophorst felt as though Clay was
unable to understand why there were concerns about the content of the
email he sent or the impact that the email had on students. Clay told Weiss
and Grotophorst that he sent the email because he was upset and felt that
the students had accused him of being discriminatory, which he did not
understand.
Grotophorst felt that Clay’s email created an environment in which
students did not feel safe or comfortable in Clay’s classroom. Weiss
believed that the email was inappropriate because it was not in the context
of Clay’s class, was not solicited by the students, and was not part of Clay’s
curriculum.
3.3

Clay’s Suspension and Subsequent Termination

Following the meeting, the District suspended Clay with pay, and he
did not return to his classroom, a decision that was made jointly by Weiss
and Grotophorst. On December 10, 2019, Clay received a letter from
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Kimberly Amidzich (“Amidzich”), Interim Superintendent of Schools,
notifying him that he was being recommended for termination due to the
alleged violation of District policies. Clay was notified that the District
considered the email he sent on December 3, 2019 to be in violation of
School Board Policy 341 – Controversial Issues and School Board Policy 411
– Discrimination and Harassment of Students Prohibited. The letter notified
Clay that the email he sent contained his personal beliefs regarding gay
marriage, a controversial topic. The letter also notified Clay that the District
considered the topics discussed in his email to be irrelevant to the
conversation that occurred in his classroom that day, not aligned with
District curriculum, and not related to pre-designated course content. Clay
was also notified that the District considered the statements he made to
have created an environment in which students did not feel safe or
supported in his classroom, which was counter to the District’s goals
around equity and inclusion.
Clay’s leave was designated as unpaid retroactively, effective
December 4, 2019, and Clay was notified that he would have an opportunity
to present his explanation of his behavior at the December 16, 2019 school
board meeting during a closed session. Clay was also notified that the
school board would vote on the recommendation to terminate his
employment and that he could choose to be represented at the meeting.
The Controversial Issues policy referenced in the December 10, 2019
letter states, in part, that a student shall have the right to “have the guidance
of a teacher who: is impartial and objective in his/her presentation, selects
materials suitable to the range, knowledge, maturity and competence of the
student, provides data concerning all aspects of the issue under discussion,
expresses opinions but informs students it is his/her opinion and not an
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authoritative answer; brings out facts concerning controversial questions,
and treats religious, moral, and ethical values and attitude with respect and
sensitivity.” The policy also states that “all issues discussed within the
classrooms will be relevant in terms of pre-designated course content.
Parents/Guardians/Students of Greendale Schools shall have a right to
complain to the school administration if they believe unfair and prejudiced
classroom presentations are being made.” The policy further states that “the
teacher who is in doubt concerning the advisability of discussing certain
issues in the classroom is expected to consult with the principal.”
The Discrimination and Harassment policy referenced in the
December 10, 2019 letter states that harassment means “behavior toward
students or staff members based, in whole or in part, on . . . sexual
orientation . . . that substantially interferes with a student’s school
performance or a staff member’s work performance or creates an
intimidating, hostile or offensive school and/or work environment.” The
policy prohibits conduct that is discriminatory or harassing.
At the school board meeting, the board discussed Clay’s termination
in a closed session. Grotophorst provided, to the school board, a summary
of the investigation, the District’s findings, and the recommendation for
termination. The board allowed Clay an opportunity to respond to the
recommendation for termination. He answered questions from board
members as well as a lawyer that was present. Clay does not believe that he
discussed his religion at the board meeting.
The school board privately deliberated about the recommendation
for termination. Ultimately, the District terminated Clay’s employment.
Clay was not terminated for the actions that occurred in the classroom (i.e.,

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his in-person conversation with students). Clay is the only employee who
had been terminated during Weiss’ tenure as principal.
3.4

Clay’s Religion and His Employment at Greendale

Clay identifies as Protestant Christian. Clay has identified as a
Protestant Christian since 1984. He believes that marriage is exclusively in
God’s law between a man and a woman. Clay’s belief that marriage is
exclusively in God’s law between a man and a woman is not a consistent
belief

among

all

congregations

of

Protestant

Christians.

Some

congregations of Protestant Christians accept gay marriage as a platform
and belief.
Clay recalls telling Weiss in January 2019 that he was a devout
Christian and that his grandfather was a preacher. Clay does not recall
Weiss having a response to Clay mentioning that he is a devout Christian.
Clay told Weiss about his religious background and grandfather because
he wanted to impress Weiss, on Martin Luther King Jr. Day, by telling him
that his grandfather worked with civil rights leaders during the civil rights
movement. The conversation on Martin Luther King Jr. Day took place
inside the school’s foyer, in passing, while Weiss was on “morning duty,”
which involves serving as a hall monitor. No other individuals overheard
the conversation between Weiss and Clay. Weiss, for his part, does not
recall having a conversation with Clay regarding his religious background.
Other than the email that he sent to the students, Clay never told
anyone at Greendale what his position was on gay marriage. Clay’s email
to the students does not mention that he is a Protestant Christian, and Clay
does not recall mentioning his religion in his meeting with Weiss and
Grotophorst. Clay does not believe that the District understood that his
opposition to gay marriage was related to his religious beliefs. Clay is also
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aware of, and knows people, who are not religious and who oppose gay
marriage.
Amidzich believes that the legalization of same-sex marriage is a
controversial political issue. Greendale Middle School staff would be
allowed to wear clothing indicating support for gay marriage but would
not be allowed to wear clothing indicating opposition to gay marriage. A
Greendale Middle School social studies teacher, Erin McCarthy
(“McCarthy”), has displayed a Pride flag in her classroom since the 2018–
2019 school year. McCarthy added the Pride flag to her classroom after her
students voted to have the flag included. In her classroom, McCarthy
displays other flags representing countries and cultures around the world,
but she hangs no other non-territorial flags like the Pride flag. McCarthy
does not express her personal opinion on controversial issues to her
students. Greendale Middle School staff would be allowed to wear a
Catholic cross around their neck as an expression of their religious beliefs.
Weiss believes there is a difference between stating support for a group and
stating opposition to a group.
4.

ANALYSIS
4.1

Discrimination Based on Religion

“Title VII makes it unlawful for an employer to discharge or
discipline an employee because of that person’s religion.” Martino v. W. &
S. Fin. Grp., 715 F.3d 195, 201 (7th Cir. 2013). The Court must look to the
body of evidence of discrimination as a whole and determine whether a
reasonable juror could infer that Clay was terminated because of his
religion. Ortiz v. Werner Enters., Inc., 834 F.3d 760, 764 (7th Cir. 2016); see also
Reives v. Ill. State Police, 29 F.4th 887, 892 (7th Cir. 2022) (“The determinative
question in discrimination cases is whether the evidence would permit a
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reasonable factfinder to conclude that the plaintiff’s [membership in a
protected class] . . . caused the discharge or other adverse employment
action.”) (internal quotations and citations omitted).
A plaintiff may survive summary judgment by (1) “provid[ing]
either direct or circumstantial evidence that supports an inference of
intentional discrimination;” or (2) “enlist[ing] the burden-shifting
framework of McDonnell Douglas.” Joll v. Valparaiso Cmty. Sch., 953 F.3d 923,
929 (7th Cir. 2020) (citing McDonnell Douglas Corp. v. Green Eyeglasses, 411
U.S. 792 (1973)). The first approach is the broadest—it allows a court to
aggregate the evidence and holistically determine whether there is a
genuine issue of material fact that is better left for a factfinder to review.
The McDonnell-Douglas test is simply a formalized framework by which
parties may discuss the evidence; it often helps the parties and the courts to
fully capture the evidence presented. Reives, 29 F.4th at 892 (“[The
McDonnell-Douglas test] remains an efficient way to organize, present, and
assess evidence in discrimination cases.”) (internal citations and quotations
omitted).
4.1.1

Evidence Supporting an Inference of Discrimination

“In order to make out a case of . . . discrimination without resorting
to McDonnell Douglas, a plaintiff must provide either direct or
circumstantial evidence that supports an inference of intentional
discrimination.” Coffman v. Indianapolis Fire Dep’t, 578 F.3d 559, 563 (7th Cir.
2009). Defendants argue that Clay has failed to provide any evidence, direct
or circumstantial, that would support an inference of discrimination. Clay
responds that he has offered enough evidence such that a jury could agree
that Defendants could infer Clay’s religious beliefs from his conduct, and

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that it was Clay’s beliefs, not his conduct (i.e., the email), that precipitated
his termination.
In Grossman v. South Shore Public School District, 507 F.3d 1097 (7th
Cir. 2007), the Seventh Circuit upheld the district court’s grant of summary
judgment to defendants in a similar situation. The plaintiff, a public-school
guidance counselor on a probationary contract, was discovered to have
thrown out literature concerning the use of condoms and replaced it with
literature advocating abstinence, and to have prayed with two students on
separate occasions. Id. at 1098. At the end of her probationary period, the
school did not extend her contract. Id. At a hearing on her contract
extension, the plaintiff learned that, despite her otherwise exemplary
performance, the school based its decision on “philosophical differences.”
Id. The plaintiff sued under Title VII, and the district court granted
summary judgment to the school. Id.
On appeal, the Seventh Circuit wrote, “[t]he issue is whether the
plaintiff’s specific religious beliefs were a ground for her not being
retained.” Id. The court discussed whether “the plaintiff was let go not
because of her beliefs but because of her conduct.” Id.
Teachers and other public school employees have no right to
make the promotion of religion a part of their job description
and by doing so precipitate a possible violation of the First
Amendment's establishment clause . . . . It would be different
if the plaintiff’s religious conduct had merely tipped off her
supervisors to the fact that she held religious beliefs that they
find repulsive and it was her beliefs, not her conduct, that
precipitated their refusal to renew her contract . . . but there is
too little evidence to create an issue for trial. The only
religious beliefs that the plaintiff’s conduct signaled were that
teenage sex is bad and that prayer is efficacious, and these
views are almost certainly shared by the Christian school
administrators who decided not to renew her contract . . . .
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The reference [in the hearing] to her preferring abstinence as
a strategy for preventing teenage pregnancy to contraception
(and likewise the references to her “belief” in abstinence and
her not making a “good fit” with the school) related to her
approach to the problem of teenage pregnancy rather than to
her theological views. Those views were the cause of her
approach, but so far as the record shows it was the approach
that concerned the school administrators.
Id. at 1099.
Under Grossman’s guidance, the record before the Court establishes
that Defendants acted upon Clay’s conduct, not his beliefs. Clay’s email
signaled only his views on gay marriage—not their basis in religion. His
approach to his perceived problem of students accusing him of being
discriminatory was to send an unsolicited email from his work account to
a limited group of his French students on a topic that was far beyond the
scope of his foreign-language curriculum. That email generated student
and parent complaints, made students uncomfortable, and led to a student
not wanting to return to Clay’s classroom. Moreover, Grotophorst provided
witness testimony, as included in the stipulated statement of facts, that she
felt that Clay’s email created an environment in which students did not feel
safe or comfortable in Clay’s classroom.
Further, the inference of religious-based discrimination is even more
removed from that in Grossman. Unlike in Grossman, Clay’s religion did not
come up a single time during the investigation or at his hearing. As stated
in the stipulated statement of facts, Clay does not believe that the District
understood that his opposition to gay marriage was related to his religious
beliefs. The parties do not dispute that Weiss does not recall having the 2019
conversation with Clay regarding his religious background; Clay admits
that Weiss had no response to him mentioning that he was a devout
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Christian during this forgotten conversation. Reed v. Great Lakes Cos., 330
F.3d 931, 934 (7th Cir. 2003) (“It is difficult to see how an employer can be
charged with discrimination on the basis of an employee’s religion when he
doesn’t know the employee’s religion.”).
Additionally, Clay cannot argue that Defendants could have, or
should have, inferred his religious beliefs solely from his opposition to gay
marriage. Not only did Clay not tell anyone that his opposition to gay
marriage was based in religion, but he admits that there are Protestant
Christians who support gay marriage and that entire congregations accept
it as a platform and belief. C.f. Grossman, 507 F.3d at 1100 (“She makes the
strange argument that her advocacy of abstinence and disapproval of
contraception marked her as an evangelical Christian, forgetting that the
Catholic Church considers the use of contraceptives a mortal sin and that
most other Christian sects as well disapprove of nonmarital sex.”). The
evidence before the Court demonstrates that it was Clay’s conduct, and the
effect of that conduct on students, that led to his termination—not his
religious beliefs on their own. While his religious views “were the cause of
[his] approach . . . it was the approach that concerned the school
administrators,” not the beliefs. Grossman, 507 F.3d at 1099.
4.1.2

McDonnell Douglas Burden Shifting

Still though, as the parties brief it, the Court must review the case
under the McDonnell-Douglas test. To establish a case of Title VII
discrimination under the McDonnell-Douglas burden-shifting method, a
plaintiff “must make a prima facie case of discrimination by showing that
they (1) belong to a protected class; (2) performed their job according to the
[defendant’s] legitimate performance expectations; (3) suffered an adverse
employment action; and (4) were treated less favorably compared to
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similarly situated employees outside of the protected class.” Patterson v. Ind.
Newspapers, Inc., 589 F.3d 357, 364 (7th Cir. 2009). Then, if the plaintiff can
meet his burden, “the burden shifts to [the defendant] to set forth a
legitimate, nondiscriminatory reason for its employment decisions.” Id. If
the defendant succeeds, “the burden shifts back to [the plaintiff] to explain
why the [defendant’s] proffered justification is pretext for discrimination.”
Id. To show pretext, the plaintiff must show that the defendant’s stated
reason was a “lie, specifically a phony reason for some action.” Martino v.
W. & S. Fin. Grp., 715 F.3d 195, 202 (7th Cir. 2013) (internal quotation and
citation omitted).
The Court will not discuss the initial burden because even if Clay
meets the initial burden, his claim fails because he cannot rebut whether
Defendants terminated him pretextually. As discussed above, Defendants
did not know that the content of Clay’s email was based on his religious
convictions. Clay states that he does not believe that the District understood
that his opposition to gay marriage was related to his religious beliefs. He
cannot make such a statement in a deposition, stipulate to it in motions
practice, and then turn around to argue that it “defies common sense” that
Defendants were unaware of his religious beliefs. Defendants cannot lie to
conceal that they terminated Clay based on his religious convictions when
Defendants had no knowledge that his position on gay marriage was based
on his religion convictions to begin with.2

To the extent that Clay wishes to argue that Defendants discriminated
against him for the belief he conveyed in his email (divorced entirely from its basis
in a particular religion), such an argument is better addressed in his claim brought
under the First Amendment. In many cases, the First Amendment is disinterested
in whether a belief arises from religion.
2

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4.2

First Amendment Retaliation

Clay also claims that Defendants fired him in retaliation for
exercising his First Amendment rights, namely engaging in constitutionally
protected speech. Defendants argue that Clay was not engaged in
constitutionally protected speech when he sent his email, and, therefore, he
cannot proceed with an argument that he was retaliated against in violation
of the First Amendment.
The First Amendment is subject to certain limitations within the
context of public education. Public schools can discipline both students and
teachers for their speech in certain situations. See Hazelwood Sch. Dist. v.
Kuhlmeier, 484 U.S. 260, 266 (1988); Mayer v. Monroe Cnty. Cmmty. Sch. Corp.,
474 F.3d 477, 480 (7th Cir. 2007). The Seventh Circuit has stated that the First
Amendment does not entitle primary and secondary teachers, when
conducting the education of captive audiences, to cover topics or advocate
viewpoints that depart from the curriculum adopted by the school system.
Mayer, 474 F.3d at 480.
For example, in Mayer, a student asked a teacher whether she
participated in political demonstrations. Id. at 478. The teacher responded
by saying that when she passed a demonstration against the nation’s
military operations in Iraq and saw a placard that said, “honk for peace,”
she honked her car’s horn to show support for the demonstrators. Id.
Parents complained about her in-class comment, and the teacher alleged
that the incident led to her termination. Id. She brought a claim under § 1983
alleging that the school violated the First Amendment by terminating her
because she took a political stance during a current-events session in her
class. Id.

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In analyzing Mayer’s claim, the Seventh Circuit noted that it
previously had held that public-school teachers “[do] not have a
constitutional right to introduce [their] own views . . . but must stick to the
prescribed curriculum—not only the prescribed subject matter, but also the
prescribed perspective on that subject matter.” Id. at 479 (citing Webster v.
New Lenox Sch. Dist. No. 122, 917 F.2d 1004 (7th Cir. 1990)). The court
explained that a school system “does not ‘regulate’ teachers’ speech as
much as it hires that speech,” noting, in example, that a teacher hired for
social studies cannot use his position as a platform for a “revisionist
perspective” of history, contrary to the approved curriculum. Id. The court
also noted that it is important to consider that pupils are a captive
audience—their presence in a classroom is compulsory. Id. “Children who
attend school because they must ought not be subject to teachers’
idiosyncratic perspectives.” Id. As a result, the court affirmed the dismissal
of Mayer’s claim because the First Amendment did not entitle her “to cover
topics, or advocate viewpoints, that depart from the curriculum adopted by
the school system.” Id. at 480.
Implicit in this exception, however, the Court must determine
whether Clay sent his email “as a citizen on a matter of public concern.”
Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). “If the answer is no, [Clay] has
no First Amendment cause of action based on his . . . employer’s reaction to
the speech.” Id. “If the answer is yes, . . . [t]he question becomes whether
the relevant government entity had an adequate justification for treating
the employee differently from any other member of the general public.” Id.
This is an often difficult inquiry. Id. In the Court’s final inquiry, it must
consider that “[s]o long as employees are speaking as citizens about matters
of public concern, they must face only those speech restrictions that are
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necessary for their employers to operate efficiently and effectively.” Id. at
419. The question is resolved by “balanc[ing] between the interests of the
teacher, as a citizen, in commenting upon matters of public concern and the
interest of the State, as an employer, in promoting the efficiency of the
public services it performs through its employees.” Pickering v. Bd. of Ed. of
Twp. High Sch. Dist. 205, Will Cnty., Illinois, 391 U.S. 563, 568 (1968).
The parties dispute whether Clay sent his email as a citizen or as a
public-school teacher.3 The Court readily agrees with the long line of cases
that declare that teachers and students do not “shed their constitutional
rights to freedom of speech or expression at the schoolhouse gate.” Tinker
v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). A school
district cannot regulate everything a person says simply because that
person is a teacher. Instead, the “critical question” is whether the teacher’s
speech is that which is “ordinarily within the scope of an employee’s
duties.” Lane v. Franks, 573 U.S. 228, 240 (2014). For reasons obvious, this
inquiry “is a practical one.” Garcetti, 547 U.S. at 424. An “excessively broad
job description” amounts to an abridgement of free speech. Id.
Clay argues that, unlike the teachers in Mayer and Webster, his speech
did not occur during regular classroom instruction. Rather, his speech was
an after-school email sent to only a select group of students, and it
concerned an earlier conversation that occurred between class periods, not
during class. See Mayer, 474 F.3d at 479 (“Mayer concedes that the currentevents session, conducted during class hours, was part of her official
duties.”); Webster, 917 F.2d at 1006–07 (analyzing a teacher’s demand to

The parties do not dispute whether the email concerned a topic of public
concern (i.e., gay marriage).
3

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teach creation science as part of his science-class instruction). While these
differences are informative, the Court cannot ignore the countervailing
facts.
Clay sent his email using his public-school email address to only his
public-school students at their public-school email addresses. When
composing the email, Clay viewed and presented himself in the role of the
students’ teacher. He opened the email with a summary of the instruction
period. He stated, “I support all of my Frenchy students,” and he closed the
message with teacherly advice (“it is best in society that we respect one
another’s differences”). His shift from discussing his French-language
coursework to gay marriage, while punctuated with a transitional phrase
and a disclaimer that his viewpoint was his own, was written under the
same subject line: “in our French class.” He was using a method of
communication that teachers in the District use to communicate matters of
classroom instruction; the parties agree that, “[g]enerally, teachers email
students using the District’s email system for curriculum or instruction
related purposes.” ECF No. 15 at 3. Because school email is generally used
for curriculum and instruction, students must check their email accounts—
they are “captive audiences” even outside of the traditional classroom. Clay
was actively engaged with his duties as a teacher when he authored the
email.
Clay opens his brief with an argument that he hopes will belie his
entire case: that, even if he was acting as a teacher when he sent his email,
the email did not, in fact, violate any school policy. Specifically, he discusses
District policies 411 (“Discrimination and Harassment of Students
Prohibited”) and 341 (“Controversial Issues”). The first prohibits certain
behaviors, including, “referring to students in a demeaning or
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marginalizing way” and defines harassment as “behavior toward students
or staff members based, in whole or in part, on . . . sexual orientation . . .
that substantially interferes with a student’s school performance . . . or
creates an intimidating, hostile, or offensive school and/or work
environment.” ECF No. 17 at 3. The second policy states, in part, that a
teacher may express their personal opinions so long as they “inform
students it is his/her opinion and not an authoritative answer . . . and treat[]
religious, moral, and ethical values and attitudes with respect and
sensitivity.” Id.
At least as to this section of the Controversial Issues policy, Clay’s
email appears to be in compliance. He disclaimed his discussion of gay
marriage as being his opinion. But the Court need not reach an answer as
to whether Clay violated the specifics parts of the policies that he addresses.
As Defendants discuss, Clay ignores an important excerpt of the
Controversial Issues policy, which requires that a teacher’s speech while
conducting their job duties be germane to the subject-matter of their course:
“[a]ll issues discussed within the classrooms will be relevant in terms of
pre-designated course content.” Id. at 4.
Gay marriage—more precisely, a teacher’s individual opinion on
gay marriage, the referendum votes of citizens of a state 2,000 miles away,
and a Supreme Court opinion—is irrelevant to a French foreign-language
class, whether the topic is disclaimed or not. This is not a factual dispute,
despite Clay’s attempts to characterize it as one. Clay offers no argument as
to how his discussion of gay marriage was in line with this part of the
District’s policy. A plain reading of the relevant clause of the policy
demonstrates that Clay’s email, which he sent while acting in his capacity

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as a French-language teacher, was wholly irrelevant to his curriculum and
violated school policy.
The record demonstrates that Clay sent his email as a public-school
teacher, not as a citizen, and his speech was subject to district policies.
Moreover, Clay’s designated curriculum did not cover gay marriage or
social studies. As a public school teacher at Greendale Middle School, Clay
conducted the education of a captive audience. As such, he was not entitled
to cover topics or advocate viewpoints that departed from his Frenchlanguage curriculum.4 The inquiry ends here. Clay “has no First
Amendment cause of action based on his . . . employer’s reaction to the
speech.” Garcetti, 547 U.S. at 418.5
4.3

Tortious Interference

Clay’s only remaining claim is that Defendants tortiously interfered
with his employment contract in violation of Wisconsin law. “When federal
claims drop out of the case, leaving only state-law claims, the district court
has broad discretion to decide whether to keep the case or relinquish
supplemental jurisdiction over the state-law claims.” RWJ Mgmt. Co. v. BP
Prod. N. Am., Inc., 672 F.3d 476, 478 (7th Cir. 2012). “A general presumption
in favor of relinquishment applies.” Id. In this case, that presumption carries

“Majority rule about what subjects and viewpoints will be expressed in
the classroom has the potential to turn into indoctrination . . . . But if indoctrination
is likely, the power should be reposed in someone the people can vote out of office,
rather than tenured teachers . . . . The Constitution does not entitle teachers to
present personal views to captive audiences against the instructions of elected
officials.” Mayer, 474 F.3d at 479–80.
4

The Supreme Court has recently taken up for review a case presenting a
similar issue to Clay’s case. See Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004 (9th
Cir. 2021), cert. granted, 142 S. Ct. 857 (2022). The outcome in that case may affect
the law cited by the Court in this Order.
5

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the day. The Court will not extend supplemental jurisdiction over Clay’s
tortious interference claim. 28 U.S.C. § 1367(c)(3).
5.

CONCLUSION
For the reasons explained above, the Court will grant Defendants’

motion for summary judgment. Clay’s claims under Title VII and the First
Amendment are dismissed with prejudice; his claim for tortious
interference under Wisconsin law is dismissed without prejudice.
Accordingly,
IT IS ORDERED that Defendants’ motion for summary judgment,
ECF No. 14, be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff Robert Clay, Jr.’s claims
under Title VII and the First Amendment be and the same are hereby
DISMISSED with prejudice;
IT IS FURTHER ORDERED that the Court, pursuant to 28 U.S.C.
§ 1367(c), declines to exercise supplemental jurisdiction over Plaintiff
Robert Clay, Jr.’s claim for tortious interference under Wisconsin law, and
this state-law claim be and the same is hereby DISMISSED without
prejudice; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 6th day of May, 2022.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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