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Sprague v. Spokane Valley Fire Department

Supreme Court of Washington, En Banc

January 25, 2018

JONATHAN J. SPRAGUE, a married man, Petitioner,
SPOKANE VALLEY FIRE DEPARTMENT, a fire district; MIKE THOMPSON and LINDA THOMPSON, husband and wife, and the marital community composed thereof, Respondents.

          WIGGINS, J.

         The Spokane Valley Fire Department (SVFD or Department) fired Captain Jonathan Sprague for persistently including religious comments in e-mails that he sent through the SVFD computer systems and items he posted on the SVFD electronic bulletin board. Sprague sued the Department for violating his First Amendment free speech rights. See U.S. Const, amend. I. The trial court and Court of Appeals declined to address the merits of Sprague's claims, instead concluding that his earlier, unsuccessful appeal to the Spokane County Civil Service Commission (Commission) collaterally estopped his lawsuit.

         We reverse. Sprague has met his initial burden to show that SVFD's restrictions on his speech violated the First Amendment. On remand, the burden will shift to SVFD to show by a preponderance of the evidence that it would have reached the same decision as to respondent's employment termination even in the absence of the protected conduct. Nor does collateral estoppel bar this lawsuit. Accordingly, we remand the case to the superior court for further proceedings consistent with this opinion.


         I. Factual History

         Sprague served as a firefighter, and eventually as a captain, for SVFD. During his employment, Sprague and other SVFD employees formed the Spokane County Christian Firefighter Fellowship (Fellowship). Sprague created a list of work e-mail addresses for 46 firefighters[1] that he believed were interested in the Fellowship's activities. Sprague began using SVFD's e-mail system to send e-mails about the Fellowship's activities.

         SVFD had a policy governing use of its e-mail system (Policy 171). It stated that the e-mail system was to be used for SVFD business only and "should not be used for personal business." SVFD acknowledged that some personal use of the e-mail system was acceptable, so long as it was "linked" to SVFD business. For example, SVFD would allow an employee to use the e-mail system to arrange for a dog sitter if the employee had to stay late or cover a shift.

         In addition to its e-mail system, SVFD maintained an electronic bulletin board as a convenient method to contact all 180 SVFD employees across various firehouses. The record does not contain an official policy governing this bulletin board, but evidence indicated that it was used for a variety of personal business, including selling snow tires, requesting tickets to a concert, or seeking recommendations for a babysitter.

         SVFD also provided an employee assistance program (EAP) for the benefit of its employees, administered by SVFD's health insurer. The insurer prepared newsletters for SVFD employees that touched on various mental health issues and topics like parenting. These newsletters were sent to SVFD employees through SVFD's e-mail system. Newsletters discussed suicide, "caregiver depression" and how to "change your mood, " eating disorders, compulsive gambling, binge drinking, and team building.

         Sprague contends that the topics discussed in the EAP newsletters were open for discussion via SVFD's e-mail system. SVFD disagrees, claiming that it does not "invite comment or discussion from SVFD employees" on the EAP newsletters. However, SVFD acknowledges that an employee could "respond to a particular EAP e-mail and inform SVFD employees of other resources available on the topics discussed within the EAP newsletters, as well as the time, place, and contact information of the organization or event." Sprague argues this was precisely what he was doing in his e-mails and electronic bulletin board posts that discussed the Fellowship.

         Sprague posted information about the Fellowship's meetings and newsletters on SVFD's electronic bulletin board. For example, one bulletin board post discussed the topic of suicide and contained two scriptural quotes.

         Sprague sent e-mails through SVFD's system about the Fellowship to his self-compiled e-mail list of other firefighters. One e-mail asked recipients to vote on a logo for the Fellowship. Some logos contained the image of a cross and the phrase "soli Deo gloria, " which translates to "glory to God alone." Two additional logos contained the image of a flame.

         Other e-mails that Sprague sent over SVFD's e-mail system contained a link to the Fellowship's newsletter, as well as brief messages. The record contains five such messages that Sprague sent over SVFD's e-mail system in 2012. In April, he sent a message discussing suicide, the Fellowship's logo, supplements, and social activities. In May, Sprague sent out an e-mail with a quote about Christ, which also discussed leadership, suicide, and social activities. In July, Sprague sent an e-mail titled "More discussion about leadership and suicide prevention." In August, Sprague sent an e-mail discussing how teachings from the Bible could help individuals and families deal with difficult situations. Finally, in September, Sprague sent an e-mail about how biblical teachings can help alleviate stress and an update on a previous activity.

         These e-mails and postings generated controversy among Sprague's supervisors. They took progressive discipline against Sprague in an effort to halt his communications about the Fellowship on SVFD's e-mail and bulletin board systems. A member of the Spokane Valley Board of Fire Commissioners sent a letter to Sprague, requesting that he stop using SVFD's e-mail system and use his personal e-mail address instead:

If you wish to send personal emails while on duty (if otherwise permitted under SVFD policy), you may do so using a personal e-mail account (such as Hotmail, Gmail, Yahoo or Comcast account). Using a personal email account, you may only send messages to other personal email accounts. You may not use a personal email account to send messages or solicitations [to] official SVFD accounts.

         Sprague did not use his personal e-mail and continued to send e-mails over SVFD's e-mail system. In turn, his supervisors continued their efforts to halt his communications.

         SVFD's letters focused on the religious content of Sprague's postings:

The inappropriate and prohibited behavior involved written content that was of a religious nature, including religious symbols. . . . The inappropriate and prohibited behavior involved the use of language and written content that was of a religious nature, specifically the quotation of scripture.

         Valerie Biladeau, SVFD's representative in the lawsuit, testified that the problem with Sprague's e-mails was that they were not "content neutral." She stated that although the "subject language" of Sprague's e-mails was the same as the EAP newsletters, they offered tips "from his interpretation of what [Sprague] had read in the Bible." This was an issue because SVFD "want[ed] to keep everything content neutral to separate church from state because [it is] a state organization." She told Sprague that the "content of the who, where, what, why and when is okay, but [to] please remove the scripture."

         Despite his supervisors' continued warnings, Sprague continued to post on the bulletin board and send e-mails about the Fellowship over SVFD's e-mail system. Eventually, Sprague was terminated from SVFD on the recommendation of the fire chief and SVFD's Board of Fire Commissioners. His discharge was a direct result of the e-mails and bulletin board postings, as well as his failure to obey his superiors' orders to cease the communications.

         II. Procedural History

         Sprague appealed his termination to the Spokane County Civil Service Commission. Sprague argued that SVFD violated his right to exercise his religion and his right to free speech. The Commission held a hearing in which Sprague and SVFD were represented by counsel, made opening statements, called witnesses, cross-examined them, and presented documentary evidence. Both parties filed posthearing briefs.

         The Commission found that SVFD's policies were equally applied to all employees and prohibited the expression of all religious views. The Commission ruled in favor of SVFD and upheld Sprague's termination. Sprague did not appeal the Commission's adverse decision, which became final.

         Sprague then filed this action in Spokane County Superior Court. He sued under 42 U.S.C. section 1983, claiming that SVFD violated his First Amendment rights of free speech and free exercise of religion, as well as his equal protection rights under the Fourteenth Amendment.[2] Sprague also claimed that SVFD violated Title VII of the Civil Rights Act of 1991.[3] He macje additional state law claims, arguing that SVFD violated his free speech rights, free exercise of religion rights, and equal protection rights under Washington State Constitution article I, sections 5, 11, and 12. Finally, Sprague argued that SVFD discriminated against him on the basis of his religion under RCW 49.60.180 and 49.60.210.

         SVFD moved for summary judgment, arguing that the decision of the Commission collaterally estopped Sprague from bringing these claims. Sprague filed a countermotion for partial summary judgment, seeking a declaration that SVFD's policy was unconstitutional. The superior court agreed with the Commission's reasoning that SVFD's policy was not discriminatory because it applied equally to all employees in prohibiting expression of religious views:

The fire department made a decision that rather than try to parse this out, or just have an open system which allowed for complete discussions of religious issues in connection with fire department issues, they chose not to have any of that type of religious discussion. They were not favoring one position or another. This was truly an "I do not want to go there" type of policy.

         Accordingly, the superior court denied Sprague's motion and granted SVFD's motion, finding that Sprague's claims were collaterally estopped by the Commission's hearing. The court also discussed the First Amendment free speech issues at length, concluding that SVFD's policies were "viewpoint neutral." Sprague appealed both the superior court's decision to grant SVFD's motion for summary judgment based on collateral estoppel and the trial court's decision to deny his motion for partial summary judgment that SVFD's policy was unconstitutional.

          Division Three of the Court of Appeals heard Sprague's appeal. In a three-way split decision, the Court of Appeals upheld the superior court's grant of summary judgment to SVFD. Sprague v. Spokane Valley Fire Dep't, 196 Wn.App. 21, 381 P.3d 1259 (2016). The majority concluded that Sprague's claims were collaterally estopped by two factual findings made by the Commission: (1) "'Sprague was not terminated for religious reasons'" and (2) "'there was no evidence presented . . . that the rules were applied unevenly and with discrimination based upon Sprague's expression of his Christian views.'" Id. at 31 (alteration in original). The majority did not reach Sprague's as-applied constitutional challenge to SVFD's policy. Id. at 30.

         The dissent argued that collateral estoppel did not apply and that, as applied, SVFD's e-mail policy, Policy 171, was likely unconstitutional. Id. at 50, 63-64. The dissent would have reversed summary judgment and remanded for a determination of which of Sprague's e-mails overlapped with the EAP newsletter topics and whether or not SVFD could have fired Sprague based on his communications that were outside those topics. Id. at 64.

         Sprague petitioned this court for review of the trial court's grant of summary judgment to SVFD on the issue of collateral estoppel and for review of the trial court's denial of summary judgment to Sprague on the issue of whether SVFD's policy was constitutional. We granted review on both issues without limitation.


         We review a trial court's summary judgment decisions de novo. Scrivener v. Clark Coll., 181 Wn.2d 439, 444, 334 P.3d 541 (2014). "Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Id.; CR 56(c). In such circumstances, this court may grant summary judgment. See, e.g., In re Estate of Toland, 180 Wn.2d 836, 854, 329 P.3d 878 (2014) (reversing a trial court's grant of summary judgment and granting the opposing party's motion for summary judgment); LaMon v. Butler, 112 Wn.2d 193, 199 n.5, 770 P.2d 1027 (1989) ("Washington courts have held many times that summary judgment should be granted when reasonable persons, giving all reasonable inferences to the nonmoving party, could only conclude that the moving party is entitled to judgment. In such cases, there is no genuine issue of material fact." (emphasis added)).[4] "Constitutional challenges are questions of law and are also reviewed de novo." City of Redmond v. Moore, 151 Wn.2d 664, 668, 91 P.3d 875 (2004). Finally, we review de novo whether collateral estoppel applies. Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 305, 96 P.3d 957 (2004).


         As explained below, we reverse the grant of summary judgment to SVFD on the basis of collateral estoppel and conclude that SVFD engaged in viewpoint discrimination. "Although the rejection of one party's cross motion for summary judgment does not compel a court to grant the opposing party's cross motion for summary judgment, we hold that to be the appropriate remedy in this case." Weden v. San Juan County, 135 Wn.2d 678, 710, 958 P.2d 273 (1998).

         Here, neither party argues before this court that the First Amendment issue should be remanded to the trial court. Instead, all parties argue that they are entitled to judgment on the constitutional issue as a matter of law. Accordingly, the parties recognized in several places that the material facts of the case are undisputed. See, e.g., Clerk's Papers (CP) at 425 ("It is undisputed that Mr. Sprague used SVFD computers and email, public resources, to send and disseminate his personal emails."), 473 ("SVFD does not dispute Sprague's description of its policy.").

         In addition, both the Commission and the trial court also recognized that the material facts of the case were undisputed. In its findings and decision, the Commission stated, "The facts relating to this matter are, for the most part, undisputed." Id. at 52. In the hearing on the parties' motions for summary judgment, the trial judge stated, "As I indicated in my questioning, it appeared to me in looking at this case that, irrespective of what the parties might think, there is a lot more agreement than there is disagreement." Report of Proceedings (RP) at 45.

         Both parties have had multiple opportunities to present evidence on the issues. At the trial court, SVFD and Sprague presented over 100 pages of motions, memoranda, declarations, depositions, and other evidence in response to whether SVFD's application of Policy 171 was unconstitutional. See, e.g., CP at 328-406, 421-58, 467-87. The trial court heard oral arguments from both parties about the constitutional issue and made several findings, including that Policy 171 was viewpoint neutral. RP at 28-38 (discussing Sprague's motion for partial summary judgment that SVFD's policy was unconstitutional), 38-41 (responding to Sprague's arguments that SVFD's policy was unconstitutional), 45-49 (trial court concluding that SVFD's policy was viewpoint neutral). The parties also presented evidence and arguments in many forms before the Commission. CP at 51-53 (noting that the parties had counsel present, made opening statements, called witnesses, presented documentary exhibits, and filed posthearing briefs).

         We acknowledge that some of our colleagues would prefer that we direct the trial court on remand to reevaluate all the evidence regarding Sprague's motion for partial summary judgment that SVFD violated the First Amendment. But a remand to review all the evidence yet again would be redundant and unnecessary. The parties have already presented the evidence to both the Commission and the trial court. RP at 50-51 (trial court's "view is the . . . Commission . . . can make factual findings . . . which may support or not support a constitutional finding. It is just the constitutional finding itself they cannot make. But they made all the necessary findings to support one and the issue was argued to them." (emphasis added)). Sprague's employment was terminated five years ago, and this case was filed almost four years ago. Sprague has gone through a civil service commission hearing and decision, a superior court hearing and decision, a Court of Appeals hearing and decision, and a hearing in this court, and now awaits a decision on his complaint. We are unwilling to prolong these proceedings unnecessarily. Both parties have had ample opportunity to present evidence on whether there are genuine issues of material fact regarding the constitutional issue presented here.

         Based on the evidence that the parties have presented, we conclude that there are no genuine issues of material fact regarding whether SVFD engaged in viewpoint discrimination when it applied Policy 171 to Sprague's speech. As a result, we hold that Sprague has met his initial burden to show that SVFD's restrictions on his speech violated the First Amendment. Accordingly, the scope of remand is limited to issues left open by this decision, that is, whether the termination of Sprague's employment was justified and if not, what damages Sprague suffered. We remand these issues to the trial court.

         I. Sprague's First Amendment Rights

         The heart of this case is whether SVFD attempted in a viewpoint neutral manner to restrict Sprague's speech. Contrary to the concurrence-dissent's characterization, both parties understood the appeal to encompass consideration of this issue.[5] Compare Suppl. Br. of Sprague at 14 ("[T]he trial court erred in failing to grant Sprague's motion for partial summary judgment asking the policy to be declared unconstitutional."), with Suppl. Br. of Resp'ts at 7-8 (arguing that if collateral estoppel does not apply, "SVFD's policy is constitutional"). Thus, in addition to the question of collateral estoppel, the other question presented is whether SVFD's restrictions on Sprague's speech were constitutional.[6]

         Three United States Supreme Court cases control our analysis of this point: Lamb's Chapel, [7] Rosenberger[8] and Good News Club.[9] Following the precedent established in those cases, we conclude that SVFD violated Sprague's First Amendment right to free speech when it restricted Sprague's speech that discussed the same topics as the EAP newsletters. While SVFD's policy was reasonable, SVFD applied it to Sprague in a manner that was not viewpoint neutral. SVFD permitted some viewpoints, but excluded Sprague's viewpoint. Also, SVFD's interest in avoiding an establishment clause violation does not outweigh Sprague's interests under the First Amendment. Permitting equal access to a forum does not endorse religion.

         However, three factors limit our analysis of whether SVFD's policy violated Sprague's free speech rights. First, although Sprague raised both constitutional and statutory claims, he briefed only his constitutional claims on appeal. We will not consider arguments that a party fails to brief. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 808-09, 828 P.2d 549 (1992). Thus, we do not examine Sprague's statutory claims.

         Second, Sprague also failed to adequately brief his claims under the Washington Constitution. He does not cite any law establishing that he has greater protections under the Washington Constitution than under the First Amendment. See Suppl. Br. of Sprague at 16. We will not examine whether the Washington Constitution provides greater protection than the United States Constitution unless a party adequately briefs the Gunwal[10] factors. Malyon v. Pierce County, 131 Wn.2d 779, 791, 935 P.2d 1272 (1997). Therefore, we confine our analysis to whether SVFD's policy violated Sprague's rights under the First Amendment.

         Third, although Sprague expressed his religious beliefs, on appeal he relies only on the free speech clause of the First Amendment, not on the exercise of religion clause. See Suppl. Br. Sprague at 13. As a result, we address only whether SVFD's policy violated Sprague's free speech rights.[11]

         Public Employees Retain Their Free Speech Rights under the First Amendment

         It is well settled that public employees do not surrender their First Amendment rights to speak freely on matters of public concern merely because they are employed by a public entity. Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). The "State may not discharge or otherwise discipline an employee on a basis that infringes upon that employee's constitutionally protected interest in freedom of speech." White v. State, 131 Wn.2d 1, 10, 929 P.2d 396 (1997).

         An employee's right to speak, however, is not absolute. Id. The State, as an employer, also has a legitimate interest "'in promoting the efficiency of the public services it performs through its employees.'" Garcetti, 547 U.S. at 417 (quoting Pickering v. Bd. of Educ, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). The court must perform a balancing test to determine whether the interest of the public employee in speaking on a matter of public concern outweighs the interest of the State in efficiently providing its public services. Id.; White, 131 Wn.2d at 10.

         A public employee's speech will be protected under the First Amendment if it meets two criteria: (1) the employee was speaking as a citizen on a matter of public concern and (2) the employee's interest in speaking outweighs the employer's interest in restricting the employee's speech. White, 131 Wn.2d at 11; see also Garcetti, 547 U.S. at 418 (requiring a determination of whether an "employee spoke as a citizen on a matter of public concern").

         First, the court must decide the threshold issue of whether the employee spoke as a citizen on a matter of public concern. White, 131 Wn.2d at 11. This is a question of law.[12] Id. Second, if the employee spoke as a citizen on a matter of public concern, the court then applies the Pickering[13] balancing test to determine whether the employee's interest in speaking outweighed the employer's interest in promoting the efficiency of its operations. White, 131 Wn.2d at 11. There are several relevant factors that a court may consider in this analysis:

(1) the time, place and manner of the employee's speech; (2) whether the statement would create problems in maintaining discipline by immediate supervisors or harmony among co-workers; (3) whether the employment relationship is one in which personal loyalty and confidence are necessary; and (4) whether the ...

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