Mpoy v. Rhee

• Decision Date: 15 July 2014
• Docket Number: No. 12–7129.,12–7129.
• Citation: 758 F.3d 285
• Parties: Bruno K. MPOY, Appellant v. Michelle RHEE, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

758 F.3d 285

Bruno K. MPOY, Appellant

v.Michelle RHEE, et al., Appellees.

No. 12–7129.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 14, 2013.

Decided July 15, 2014.

Appeal from the United States District Court for the District of Columbia (No. 1:09–cv–01140).

Jason D. Moore argued the cause for appellant. With him on the brief were Stewart S. Manela and Rachel M. Witriol.

Richard S. Love, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for Donald Presswood. With him on the brief were Irvin B. Nathan, Attorney General, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General at the time the brief was filed.

William L. Drake argued the cause and filed the brief for appellee Michelle Rhee.

Before: GARLAND, Chief Judge, and HENDERSON and SRINIVASAN, Circuit Judges.

Opinion for the Court filed by Chief Judge GARLAND.

GARLAND, Chief Judge:

Bruno Mpoy, a former District of Columbia special education teacher, alleges that his school principal and the chancellor of the District of Columbia Public Schools terminated him because of an email he sent to the chancellor. Mpoy contends that one sentence in that email constituted speech protected by the First Amendment, and that his termination therefore violated the Constitution. The district court determined that the email did not constitute protected speech, and that even if it did, the individual defendants were entitled to qualified immunity. We affirm the judgment on the latter ground.

I

The district court granted the defendants' motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). We review such a judgment de novo, taking the complaint's factual allegations as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678–79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Taylor v. Reilly, 685 F.3d 1110, 1113 (D.C.Cir.2012); Stewart v. Evans, 275 F.3d 1126, 1132 (D.C.Cir.2002). The facts, as alleged in the complaint, are as follows.

In 2007, the District of Columbia Public Schools (DCPS) hired Mpoy as a special education teacher at Ludlow Taylor ElementarySchool on a probationary basis. Mpoy came to DCPS through DC Teaching Fellows and The New Teacher Project. Under those programs, he was granted a provisional teaching license, with the expectation that he would receive full licensing upon completion of his teaching certification classes at George Washington University.

According to the complaint, Mpoy faced challenges in his role as a special education teacher from the very beginning. His classroom was dirty and lacked books and other necessary materials. Compl. ¶¶ 39–40. He complained to the principal, Donald Presswood, who ignored his complaints. After Presswood observed Mpoy's classroom and teaching performance, Mpoy requested feedback but never received any. Id. ¶¶ 40, 43–45.

The school gave Mpoy teaching assistants, who were supposed to help him carry out his teaching duties and foster a positive learning experience. But “[f]rom the moment [Mpoy] began teaching at Ludlow, his teaching assistants were hostile, unprofessional, and unwilling to assist [Mpoy's] effort to educate and nurture his special education students.” Compl. ¶ 47. The “disruptive and hostile acts of [the teaching assistants] included ... failing to follow [Mpoy's] lesson plans, provoking students to fight, inciting [Mpoy's] students to be disrespectful to one another, encouraging students to be disrespectful to [Mpoy], reading and showing entirely non-educational materials to students, dressing unprofessionally and inappropriately, and taking students for unscheduled recess without [Mpoy's] permission.” Id. ¶ 48. Mpoy repeatedly informed Presswood of this conduct “that was hindering [Mpoy's] ability to teach his special education students.” Id. ¶ 51. Presswood generally ignored Mpoy's complaints, failed to take any corrective action, and accused Mpoy of creating the problems. Id. ¶¶ 52–53.

DCPS evaluates the progress of special education students using the “DC–CAS Alternative.” Compl. ¶ 65. The DC–CAS Alternative requires the teacher to assess a student's knowledge at intervals during the year. According to the complaint, Presswood instructed Mpoy to falsify the assessments of his special education students to make it appear that they had demonstrated acceptable progress. Id. ¶ 70. When Mpoy told Presswood that he would not do it, id. ¶ 71, Presswood enlisted two other teachers “to falsify the records of Plaintiff's special education students,” id. ¶ 72.

In January 2008, Presswood issued a letter of warning to Mpoy, accusing him of excessive tardiness and failing to follow lesson plans. Compl. ¶ 80. Despite Mpoy's request for an explanation, Presswood never provided one. Id. In February 2008, Presswood issued another warning letter, accusing Mpoy of failing to monitor and escort his students and failing to follow fire drill procedures. Mpoy again requested an explanation, and Presswood again failed to provide one. Id. ¶ 81. On May 7, 2008, at Presswood's recommendation, Mpoy was issued a five-day suspension for failure “to follow instructions issued by your supervisor to conduct a classroom observation.” Id. ¶¶ 82–83. After receiving his notice of suspension, Mpoy asked to see his personnel file; his request was denied. Id. ¶ 84.

On June 2, 2008, Mpoy sent then-Chancellor Michelle Rhee the email that is at the heart of this appeal. 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. Compl. ¶ 86. The five-page email included a one-sentence reference to Presswood's alleged direction to falsify the records of Mpoy's students. See Email from Bruno K. Mpoy to Michelle Rhee (June 2, 2008), J.A. 52–56.

On June 4, 2008, Presswood called Mpoy into his office for a meeting. During the meeting, Presswood said he would recommend to Rhee that Mpoy's teaching position not be renewed; he gave no reason for that recommendation. Compl. ¶¶ 87–88. On June 13, Presswood issued Mpoy's evaluation for the previous year. It stated that he was either ineffective or needed improvement in every area, an evaluation that Mpoy alleges was baseless. Id. ¶¶ 90–91. On July 9, Mpoy met with officials in the chancellor's office, where he was told that Presswood had recommended nonrenewal of his teaching position and that he would be receiving a termination letter. Id. ¶¶ 94–97. When Mpoy arrived for work on August 19, 2008, he was given a termination letter dated July 15, 2008. Id. ¶¶ 99–101.

The following year, Mpoy sued The New Teacher Project, the District of Columbia, Presswood, and Rhee, contending (inter alia) that he was fired “for reporting the misconduct and inappropriate conditions he encountered at Ludlow.” Compl. ¶ 13. The complaint, filed in United States District Court, stated a federal claim under 42 U.S.C. § 1983 for retaliation in violation of the First Amendment, as well as several non-federal claims, including breach of contract and violation of the D.C. Whistleblower and Human Rights Acts. On July 2, 2012, the district court granted The New Teacher Project's motion to dismiss. The court permitted the First Amendment retaliation claim to proceed, but only against Rhee and Presswood, and only in their personal capacities. Mpoy has not appealed that ruling.

Rhee, Presswood, and the District of Columbia subsequently moved for judgment on the pleadings, which the district court granted in November 2012. Mpoy v. Fenty, 901 F.Supp.2d 144, 153–57 (D.D.C.2012). 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 were protected, Presswood and Rhee were entitled to qualified immunity. Having dismissed the federal claims, the court declined to exercise supplemental jurisdiction over Mpoy's non-federal claims, saying that he could refile them in the appropriate local court. Thereafter, Mpoy filed the instant appeal, which challenges only the dismissal of his First Amendment retaliation claim for damages against Rhee and Presswood in their personal capacities.

II

It is well established that teachers—and other government employees—do not “relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest.” Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Instead, First Amendment protection of a teacher's speech depends upon “a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id.

A

In Garcetti v. Ceballos, the Supreme Court articulated a two-step inquiry to determine whether the speech of a public employee is protected under the First Amendment:

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.

547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (citations omitted). Both steps “are questions of law for the court to resolve.” Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C.Cir.2007); see Connick v. Myers, 461 U.S. 138, 148 n. 7, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The first step is comprised of two requirements: for the speech to be...