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.
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
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.
AND PROCEDURAL HISTORY
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 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
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.
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.
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.
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.
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.
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.
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.
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.
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.
letters focused on the religious content of Sprague's
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.
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
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.
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.
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.
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. Sprague also claimed that SVFD
violated Title VII of the Civil Rights Act of
1991. 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
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.
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.
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.
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.
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)). "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
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
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
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.
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).
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.
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.
Sprague's First Amendment Rights
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. 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
United States Supreme Court cases control our analysis of
this point: Lamb's Chapel, 
Rosenberger and Good News Club. 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
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
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 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.
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.
Employees Retain Their Free Speech Rights under the First
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).
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.
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
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. Id. Second, if the employee
spoke as a citizen on a matter of public concern, the court
then applies the Pickering 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 ...