A federal appeals court has upheld the dismissal of a Wisconsin high school teacher for accessing pornographic images on his school computer, rejecting his claims that his school district retaliated against him for teachers’ union activism.
Robert Zellner was a longtime biology teacher at Cedarburg High School in Cedarburg, Wis., when he was dismissed in 2006. He had been active in the Cedarburg Education Association, an affiliate of the National Education Association, serving as its president from 2003-05.
Around that time, the union local was engaged in bitter relations with Superintendent Daryl Herrick over the district’s relatively low teacher pay scale and management issues.
After one contentious bargaining session, court papers say, the superintendent warned Zellner privately that “the gloves would come off” if the union did not back down and that someone in the community had informed him that Zellner was “into pornography.”
Contentious relations continued, including after Zellner left the union presidency but was still its representative at Cedarburg High. The school board, meanwhile, renewed the superintendent’s contract despite a no-confidence vote from the teachers’ union.
In late 2005, after Zellner criticized the superintendent in a Milwaukee newspaper, the teacher was confronted with evidence that he had accessed porn on his school computer. A school technology staff member had installed tracking software on the computer and alerted supervisors when Zellner did a search for “blonde” on Google Image Search.
Zellner acknowledged he had accessed the porn images. The matter was referred to the school board because the teacher violated the district’s computer usage policy. Zellner read a statement apologizing and saying he used poor judgment, but the school board voted to terminate him.
An arbitration award won by Zellner (which called for his reinstatement) was overturned by Wisconsin state courts. So Zellner sued the district in federal court, claiming his firing over the porn images was pretextual and retaliation for his union activities.
Zellner lost in both a federal district court and before a panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago.
“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,” the 7th Circuit court said in a unanimous April 29 decision in Zellner v. Herrick.
“It is undisputed that the search violated the district’s [computer-usage] policy, that Zellner admitted that he performed the search, and that he knew he violated the policy,” the court continued. “Accordingly, the School Board had a legitimate, non-discriminatory
reason to terminate Zellner’s employment. ... 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.”