First Amendment retaliation claim under § 1983 by former assistant county prosecutor; Mt. Healthy v. Doyle; Proposed reinstatement agreement requiring plaintiff’s public speech on a matter of public concern and private conscience; Discharge after plaintiff refused to engage in the offensive speech; Defamation; Interference with business expectancies; Malicious prosecution; Abuse of process; Intentional infliction of emotional distress

Concluding the defendant-public employer’s interests in promoting the statutory duties of county prosecutor clearly outweighed the plaintiff-former assistant prosecutor’s interests in unfettered speech, the court held the defendants were entitled to judgment as a matter of law on plaintiff’s First Amendment retaliation claim. Plaintiff was involved in an effort to rescue a cat sold by the county animal shelter for re-sale to research institutions. After an investigation, the county prosecutor discharged plaintiff and publicized his reasons. The court found it was true the proposed reinstatement agreement required plaintiff’s public speech on a matter of public concern and private conscience – an apology and admission what she had done was unequivocally wrong. It was also true plaintiff was discharged because and when she refused to engage in the offensive speech. However, the court found plaintiff engaged in conduct approaching criminal conduct. The conduct was admittedly dishonest, and while plaintiff did it to secure what she believed to be higher ethical ends, there was no existing legal authority sanctioning this sort of misrepresentation of animal ownership. Given this, the prosecutor was right to conclude plaintiff should apologize. The court also granted defendants summary judgment as to plaintiff’s state law tort claims.