DC Circuit holds school administrators were entitled to qualified immunity from former teacher’s First Amendment free speech retaliation suit
Mpoy v. Rhee, No. 12-7129 (D.C. Cir. July 15, 2014)
Abstract: A U.S. Court of Appeals for the District of Columbia Circuit three-judge panel has ruled that even assuming the portion of a teacher’s email to the chancellor of the District of Columbia Public Schools (DCPS) accusing his principal of falsifying the assessments of students was protected speech under the First Amendment’s Free Speech Clause, the individual school administrators named as defendants were entitled to qualified immunity from the teacher’s First Amendment retaliation suit. The panel assumed, without deciding, that the part of the email reporting that the principal had allegedly altered the students’ records was protected under the First Amendment. However, the panel still concluded that the individual defendants were entitled to qualified immunity because it was not clearly established law at the time the teacher was terminated that such speech is protected.
Facts/Issues: Bruno Mpoy was employed by DCPS as a special education teacher at Ludlow Taylor Elementary School (LTES) on a probationary basis. Mpoy encountered a number of obstacles and problems throughout his assignment at LTES. He complained, without success, to Principal Donald Presswood about the unsanitary condition of his classroom and the lack of books and other necessary materials. He also found the performance of his teaching assistants wanting.
Presswood generally ignored Mpoy’s complaints, failed to take any corrective action, and accused Mpoy of creating the problems. According to Mpoy, Presswood instructed him to falsify the assessments of his special education students to make it appear that they had demonstrated acceptable progress. When Mpoy told Presswood that he would not do it, Presswood enlisted two other teachers “to falsify the records of Plaintiff’s special education students.”
Presswood subsequently issued two warning letters to Mpoy: one for excessive tardiness and failure to follow lesson plans; the other for failure to escort and monitor his students and failure to follow safety procedures. Mpoy also received a five-day suspension for failure “to follow instructions issued by your supervisor to conduct a classroom observation.” He then sent an email to then-Chancellor Michelle Rhee. The email described in detail Presswood’s actions and the various classroom problems that Mpoy had brought to Presswood’s attention but that the principal had failed to remedy. The five-page email included a one-sentence reference to Presswood’s alleged direction to falsify the records of Mpoy’s students.
At the end of the school year, Mpoy received a letter of non-renewal of his teaching contract and was terminated. Mpoy filed suit in federal district court against The New Teacher Project, DCPS, Presswood, and Rhee alleging that he was fired for “reporting the misconduct and inappropriate conditions he encountered” at LTES. The court granted The New Teacher Project’s motion to dismiss. It allowed the First Amendment retaliation claim to proceed, but only against Rhee and Presswood, and only in their personal capacities. Mpoy did not appeal that ruling.
After the retaliation claim went forward, Rhee, Presswood, and DCPS filed a motion for judgment on the pleadings, which the district court later granted. The court held that Mpoy’s speech was not protected by the First Amendment because it was made pursuant to his official duties rather than as a citizen on a matter of public concern. In the alternative, the court held that, even if the speech was protected, Presswood and Rhee were entitled to qualified immunity. Mpoy appealed this ruling.
Ruling/Rationale: The D.C. Circuit panel affirmed the lower court’s decision on the grounds of qualified immunity. Analyzing the issue of whether Mpoy had engaged in protected speech, the panel stated that under Garcetti v. Ceballos, 547 U.S. 410 (2006), courts utilize a two-part test:
The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.
The panel found that the focus of the appeal was whether Mpoy spoke as a citizen rather than an employee in his email. Garcetti held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
According to the panel, the D.C. Circuit has interpreted “pursuant … to officials duties” in Winder v. Erste, 566 F.3d 209 (D.C. Cir. 2009), to mean that “a public employee speaks without First Amendment protection when he reports conduct that interferes with his job responsibilities, even if the report is made outside his chain of command.” It, therefore, found: “Under circuit law as described in Winder, however, that email is unprotected by the First Amendment because it ‘report[ed] conduct that interfere[d] with his job responsibilities.’” As a result, the panel concluded, based on Winder, that “Mpoy’s email constituted employee speech unprotected by the First Amendment.”
Nonetheless, the panel determined that its inquiry into whether email was entitled to First Amendment protection was not at an end, because the U.S. Supreme Court’s repeated use in Lane v. Franks, __ U.S. __, No. 13-483, 2014 WL 2765285 (June 19, 2014), of “the adjective ‘ordinary’ — which the court repeated nine times — could signal a narrowing of the realm of employee speech left unprotected by Garcetti.” The panel posited that “it is possible that Winder’s broad language, interpreting Garcetti as leaving an employee unprotected when he reports conduct that ‘interferes with his job responsibilities,’ could be in tension with Lane’s holding that an employee’s speech is unprotected only when it is within the scope of the employee’s ‘ordinary job responsibilities.’”
However, the panel found it could leave that question for another day because Mpoy’s appeal could be resolved by determining if Presswood and Rhee were entitled to qualified immunity. Pointing out that the “relevant question for qualified immunity purposes is whether the official could reasonably have believed, at the time he fired [the plaintiff], that a government employer could fire an employee on account of the speech in question.” It concluded that because no Supreme Court case at the time had “cast doubt” on the validity of Winder as precedent, the individual defendants were entitled to qualified immunity.
Mpoy v. Rhee, No. 12-7129 (D.C. Cir. July 15, 2014)
[Editor’s Note: In June 2014, Legal Clips summarized a decision by a New York federal district court in Pekowsky v. Yonkers Bd. of Educ. denying a school district’s and middle school principal’s motions for summary judgment seeking dismissal of a teacher’s First Amendment retaliation claim. The court concluded that the teacher, who served as union representative for teachers at a middle school, had pleaded facts sufficient to state a cause of action for retaliation. It rejected the defendants’ contention that the teacher’s advocacy on behalf of fellow union members was not activity protected by the First Amendment.
Also in June 2014, Legal Clips summarized an NPR story reporting on the U.S. Supreme Court’s decision in Lane v. Franks, which held that the First Amendment “protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities.” However, the Court also found that Franks was entitled to qualified immunity from the suit.]