
    Stella SATTER, Plaintiff—Appellant, v. State of WASHINGTON DEPARTMENT OF ECOLOGY; Kenneth Slattery, Defendants—Appellees.
    No. 10-36131.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Dec. 5, 2011.
    Filed Dec. 20, 2011.
    
      Hugh McGavick, Law Office of Hugh J. McGavick, PS, Portland, OR, for Plaintiff-Appellant.
    Ian M. Bauer, Assistant Attorney General, AGWA-Office of the Washington Attorney General, Olympia, WA, for Defendants-Appellees.
    Before: TASHIMA, McKEOWN, and TALLMAN, Circuit Judges.
   MEMORANDUM

Stella Satter appeals the district court’s grant of summary judgment in favor of defendants. Satter claims that an unconstitutional prior restraint was placed on her speech during the pendency of an investigation into her work-related conduct. Satter also claims she was constructively discharged from her position at the Department of Ecology (“DOE”) because she resigned under duress. We agree with the district court that Slattery had qualified immunity and that Satter’s resignation was voluntary.

We assume, without deciding, that Slattery’s restriction on Satter’s speech led to a constitutional violation under the balancing test set forth in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Nonetheless, Slat-tery is entitled to qualified immunity for this claimed violation if his actions did not violate a “cleai’ly established” right. A right is “clearly established” if “the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Moran v. Washington, 147 F.3d 839, 844-45 (9th Cir.1998) (internal quotation marks omitted). “Because the underlying determination pursuant to Pickering whether a public employee’s speech is constitutionally protected turns on a context-intensive, case-by-case balancing analysis, the law regarding such claims will rarely, if ever, be sufficiently ‘clearly established’ to preclude qualified immunity....” Id. at 847.

Satter cannot demonstrate that the contours of her right to free speech were sufficiently clear that a reasonable official would understand that the restriction imposed was a violation of that right. Assuming the speech restriction was over-broad, Satter cannot show that Slattery should have understood that the Pickering balancing test weighed so clearly in Sat-ter’s favor that the prohibition he imposed would be constitutionally problematic. The same rationale applies to the prohibition on Satter’s speech subsequent to the conclusion of the investigation. Slattery is therefore entitled to qualified immunity.

With respect to the constructive discharge claim, it is undisputed that Sat-ter tendered her resignation at the pre-disciplinary hearing. Under Washington law, an employee’s resignation is presumed voluntary and the employee bears the burden of rebutting this presumption. Molsness v. City of Walla Walla, 84 Wash.App. 393, 928 P.2d 1108 (Wash.App.1996) (citations omitted). A resignation is not rendered involuntary because an employee tenders her resignation to avoid termination for cause. Id. at 1110. Satter may nonetheless succeed if the DOE deliberately made her working conditions so intolerable such that a reasonable person in Sat-ter’s position would be forced to resign. Sneed v. Bama, 80 Wash.App. 843, 912 P.2d 1035, 1039 (Wash.App.1996). The record does not support such a claim here. Satter did not tender her resignation while the complained-about circumstances were present; instead, she tendered her resignation only when faced with disciplinary action “up to and including discharge.”

Satter initially chose to dispute the charges, but later changed her mind. She prepared and provided the DOE a point-by-point rebuttal at the pre-disciplinary hearing; however, instead of arguing her case at the hearing or waiting for the DOE’s imposition of discipline, she resigned. Consequently, “[t]he fact remains, plaintiff had a choice. She could stand pat and fight. She chose not to. Merely because plaintiff was faced with an inherently unpleasant situation in that her choice was arguably limited to two unpleasant alternatives does not obviate the voluntariness of her resignation.” Molsness, 928 P.2d at 1110 (quotation marks omitted).

Satter’s request for attorneys’ fees is denied as moot.

AFFIRMED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     