Bruno Mpoy v. Michelle Rhee , 758 F.3d 285 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 14, 2013 Decided July 15, 2014
No. 12-7129
BRUNO K. MPOY,
APPELLANT
v.
MICHELLE RHEE, ET AL.,
APPELLEES
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.
2
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 (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
Elementary School 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
3
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
4
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
5
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
6
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 (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
7
an adequate justification for treating the employee
differently from any other member of the general
public.
547 U.S. 410, 418 (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 (1983). The first step is comprised of
two requirements: for the speech to be protected, the employee
must have spoken (1) as a citizen, and (2) on a matter of public
concern. See Bowie v. Maddox, 642 F.3d 1122, 1133-34 (D.C.
Cir. 2011); see also Weintraub v. Bd. of Educ. of City Sch. Dist.
of City of N.Y., 593 F.3d 196, 201 (2d Cir. 2010); Davis v.
McKinney, 518 F.3d 304, 312 (5th Cir. 2008) (noting that
Garcetti added a “threshold layer” that focused first on the “role
the speaker occupied” before focusing on “the content of the
speech”).
The first requirement -- that the employee spoke as a citizen
rather than an employee -- is the focus of this appeal. As to that
requirement, Garcetti said: “We hold 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.” 547 U.S. at 421.
In Garcetti, the Court held that an internal memorandum written
by a deputy district attorney “pursuant to [his] duties” did not
constitute speech as a citizen and hence was unprotected. Id. at
421-22.
Because the plaintiff in Garcetti conceded that his
statements were made “pursuant to his employment duties,” id.
at 424, the Court had no occasion to comprehensively articulate
what is encompassed by that phrase, other than to observe:
8
The proper inquiry is a practical one. Formal job
descriptions often bear little resemblance to the duties
an employee actually is expected to perform, and the
listing of a given task in an employee’s written job
description is neither necessary nor sufficient to
demonstrate that conducting the task is within the
scope of the employee’s professional duties for First
Amendment purposes.
Id. at 424-25. In the years since Garcetti, this circuit has had
several occasions to consider the meaning of “pursuant
to . . . official duties.” In 2007, in Wilburn v. Robinson, we
considered whether allegations made by the director of the D.C.
Office of Human Rights -- that the District had unlawfully
discriminated in refusing to authorize salaries she had requested
-- constituted protected speech. 480 F.3d at 1150. Relying on
Garcetti, we held that her speech had been made pursuant to her
official duties and was thus unprotected. Id. at 1151. In 2008,
in Thompson v. District of Columbia, we held that the chief of
security for the D.C. Lottery Board was speaking pursuant to his
official duties when he reported financial misconduct to Lottery
Board officials. 530 F.3d 914, 918 (D.C. Cir. 2008).
In 2009, in Winder v. Erste, we summarized the then-state
of our case law regarding the meaning of “pursuant
to . . . official duties” as follows: “In our cases applying
Garcetti, we have consistently held 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.” 566 F.3d 209,
215 (D.C. Cir. 2009) (citing, inter alia, Thompson and Wilburn).
In Winder, we held that DCPS’ transportation manager was not
entitled to First Amendment protection for “his testimony before
the D.C. Council, his reports to the . . . Special Master, and his
complaint to the D.C. Inspector General.” Id. at 214. “Speech
9
can be covered by the First Amendment,” we acknowledged,
“even if it is related to one’s job function.” Id. at 216. The
transportation manager’s speech, however, was made “pursuant
to his official duties” because it did not merely “concern[]”
those duties but rather “attempt[ed] to implement” them. Id. at
216 (internal quotation marks omitted). Subsequently, in 2011,
we held that an affidavit drafted by an official in the D.C. Office
of the Inspector General likewise fell within his official duties
under Garcetti. Bowie, 642 F.3d at 1134.
B
According to Mpoy’s complaint, he was fired “for reporting
the misconduct and inappropriate conditions he encountered at
Ludlow.” Compl. ¶ 13. In his briefs and argument, Mpoy
made clear that his claim is that the speech that caused him to be
fired was the email he sent to Chancellor Rhee. See Mpoy Br.
15, 22-25; Oral Arg. Recording at 9:13.1 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.” 566 F.3d at 215.
1
Although the email was not attached to the complaint, the
District Court considered it under Rule 12(c) because it was
incorporated into the complaint by reference. Mpoy, 901 F. Supp. 2d
at 154 n.1; see EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d
621, 624 (D.C. Cir. 1997) (“In determining whether a complaint fails
to state a claim, we may consider only the facts alleged in the
complaint, any documents either attached to or incorporated in the
complaint and matters of which we may take judicial notice.”); Cortec
Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 46-47 (2d Cir. 1991);
Fudge v. Penthouse Int’l, Ltd., 840 F.2d 1012, 1014-15 (1st Cir.
1988). Mpoy did not and does not object to consideration of the
email. See Mpoy Br. 22 n.2.
10
Both the content and the context of the email, as construed
in light of the complaint, indicate that Mpoy was speaking as an
employee reporting conduct that interfered with his job
responsibilities, rather than as a citizen. The opening two
sentences of the email stated: “I am a special education teacher
at Ludlow Taylor ES. As a teacher, my primary duty is to
ensure student achievement.” Mpoy Email, J.A. 52. It then
went on to list a litany of complaints indicating that the school,
and particularly its principal, had been interfering with that
“primary duty.”
The majority of the email’s complaints related to the
misbehavior of Mpoy’s teaching assistants. His assistants,
Mpoy charged, were “engaged in a campaign to disrupt the
educational process.” Id.; id. at J.A. 55 (same). Several
paragraphs were devoted to describing that behavior. See id. at
J.A. 54. Among other things, the email alleged that one of the
assistants “slept in the classroom, . . . physically engaged a
female student, ate in the classroom, paraded in and out of the
classroom, and incited students. In addition, he wore shorts and
untied basketball shoes to school and was generally unkempt; he
had visible dirt in his finger nails.” Id. The email further
complained that the assistants’ “campaign to disrupt the
educational process” included:
showing non-educational movies such as Cinderella
during instructional time; taking students outside from
the cafeteria after lunch for a second recess during
instructional time; playing non-educational games with
students during instructional time; rewarding students
with treats for not completing their assignments[;]
. . . inciting students to disrupt the educational process,
inducing students to lie, holding loud personal
conversations during instructional time; allowing the
cell phone to ring to rap music which students sing
11
when the cell phone rings; making loud, argumentative
statements to the teacher in the presence of students;
refusing to implement the curriculum based lessons I
provide, and instead, giving students non-curriculum
based, mindless tasks . . . ; destroying all established
routines and procedures by condoning and/or passively
encouraging students not to follow classroom rules.
Id. at J.A. 55-56.
The email also decried Presswood’s failure to stop the
misbehavior of Mpoy’s teaching assistants. Id. at J.A. 52.
Although he “apprised Dr. Presswood of the [assistants’]
conduct with more than twenty emails,” Mpoy wrote Rhee,
Presswood “failed to respond to any of them or take action of
any kind.” Id. at J.A. 52-53. Several paragraphs of Mpoy’s
email to Rhee were devoted to detailing the ways in which
Mpoy had unsuccessfully sought to correct the teaching assistant
problem “because I could not teach and the students were no[t]
learning,” Id. at J.A. 54; see id. at J.A. 54-56. Apparently to
discourage such disruption, Mpoy told Rhee that he had “asked
Presswood to grant me permission to request consent from
parents for me to install a video camera in my classroom,” but
that “he never responded.” Mpoy also said that he had warned
Presswood “that if the [assistants] continued to disrupt the
educational process, I would write directly to Chancellor Rhee
and request permission to install a video camera in my
classroom.” Id. at J.A. 53. Notwithstanding the threat,
Presswood still “did not take any action.” Id.The email listed other complaints as well. It devoted an
entire paragraph to Mpoy’s contention that he had been
“suspended without pay and without due process.” Id. at J.A.
52. It reported that, “to date,” he still did “not have all the
books” needed to teach his students, and that Presswood had
12
“refused to provide [them].” Id. at J.A. 53-54. And it advised
Rhee that he had “asked Dr. Presswood to fix the classroom
clock,” but that he had “not taken any action.” Id. at J.A. 56.
Mpoy does not dispute that all of the speech we have
described thus far was speech that Mpoy made as an employee
rather than as a citizen. See Oral Arg. Recording at 1:09-40.
But he maintains that the following sentence, also contained in
the email, constituted speech as a citizen: “Dr. Presswood, the
principal of Ludlow Taylor, misrepresented students’
performance and results on the DCCAS Alternative.” Mpoy
Email, J.A. 52. According to Mpoy, that sentence was not
written pursuant to his official responsibilities.
To determine whether speech “was made pursuant to
official responsibilities, the Court must take a hard look at the
context of the speech.” Decotiis v. Whittemore, 635 F.3d 22, 32
(1st Cir. 2011).2 Here, the speech in question was a single
sentence consisting of 2.5 lines in a 160-line email; 16 words out
of more than 1300. As we have said, Mpoy does not dispute that
the vast majority of the email was government employee speech
-- speech that “report[ed] conduct that interfere[d] with his job
responsibilities.” Winder, 566 F.3d at 215. Mpoy told Rhee
that, “[a]s a teacher, my primary duty is to ensure student
achievement,” Mpoy Email, J.A. 52, and throughout the email
he complained about conduct that was “disrupt[ing] the
educational process” in his own classroom. Id. at J.A. 52, 53,
55.
2
See Abcarian v. McDonald, 617 F.3d 931, 937 (7th Cir. 2010);
Abdur-Rahman v. Walker, 567 F.3d 1278, 1283 (11th Cir. 2009); see
also Mpoy Reply Br. 2 (“[T]he Court’s inquiry should be a practical
one, seeking clues from the context of Mr. Mpoy’s speech.” (citing
Garcetti, 547 U.S. at 424)).
13
In this context, the sentence about the misrepresentation of
the students’ results was also plainly a grievance about
Presswood’s interference with Mpoy’s duty to assess and ensure
the achievement of his students. See Mpoy Br. 8 (“Instead of
helping Mr. Mpoy educate his students, Presswood chose . . . to
make it appear Ludlow was meeting its students’ needs.”).3 This
is further confirmed by the complaint’s specific description of
what Presswood had done to “misrepresent[] students’
performance and results on the DCCAS Alternative.” Mpoy
Email, J.A. 52. The complaint makes clear that Mpoy was not
complaining that the principal had changed the DC-CAS
assessments of any other teachers’ students. Rather, Mpoy
specifically alleged that “Presswood instructed Plaintiff to
falsify the DC-CAS Alternative assessments and other records
of his special education students,” Compl. ¶ 70 (emphasis
added), and that when Mpoy refused, “Presswood enlisted two
other teachers at Ludlow to falsify the records of Plaintiff’s
special education students,” id. ¶ 72 (emphasis added). In his
brief, Mpoy makes the same allegations and describes them in
the same way. See Mpoy Br. 7 (stating that “Presswood
instructed Mpoy to fabricate acceptable performance results” for
his students, and that when he refused, “Presswood enlisted two
other teachers to . . . conduct[] sham assessments of Mr. Mpoy’s
students” (emphasis added)).4 In context, then, Presswood’s
3
See also Compl. ¶ 66 (stating that it is the responsibility of the
teacher to “assess[] a student to determine the student’s beginning
level of knowledge” and that, “[b]ased on the first assessment, the
teacher educates the student to improve knowledge level”).
4
At oral argument, counsel acknowledged that the only
misrepresentations Mpoy knew of at the time he sent the email -- and
the only allegation he made in the complaint -- concerned his own
students’ assessments. Oral Arg. Recording at 7:17-8:26. Counsel did
contend that he might have learned of a “grander campaign” if the
district court had not dismissed the complaint and instead allowed him
14
complaint to Rhee on this subject was made “pursuant to his
official duties.” Cf. Adams v. N.Y. State Educ. Dep’t, 752
F. Supp. 2d 420, 429-30 (S.D.N.Y. 2010) (holding that a
teacher’s complaint to school authorities that her principal had
instructed her to make improper changes in her own students’
grades was unprotected because it was made pursuant to her
official duties), aff’d sub nom. Ebewo v. Fairman, 460 F. App’x
67 (2d Cir. 2012).
Mpoy argues, to the contrary, that the context of the
statement suggests he was speaking as a citizen rather than an
employee because he sent the email outside the “chain of
command” -- by sending it directly to Chancellor Rhee rather
than to his principal’s immediate superiors. As noted above, we
held in Winder 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.” 566 F.3d at 215. But granting that
whether speech is made inside or outside a chain of command
may be a contextual factor in determining whether the employee
made it to report interference with his job responsibilities,5 there
is little doubt that Mpoy was using the email to Rhee as an
internal channel through which he could, in his capacity as a
teacher, report such interference. Mpoy identified himself by
his job title in both the opening paragraph and the closing
to take discovery. Id. But such discovery could not have been
relevant to determining how to characterize what Mpoy was reporting
in an email that he sent before he filed suit.
5
See Decotiis, 635 F.3d at 32; Weintraub, 593 F.3d at 204; Davis,
518 F.3d at 313 & n.3; Thompson, 530 F.3d at 916-17. Garcetti made
clear that the fact that an employee “expressed his views inside his
office, rather than publicly, is not dispositive. Employees in some
cases may receive First Amendment protection for expressions made
at work.” 547 U.S. at 420.
15
signature.6 See Bowie, 642 F.3d at 1134. And he does not
dispute that more than 98% of the email served no purpose other
than reporting interference with his ability to educate his
students. See Oral Arg. Recording at 1:09-40. Indeed, Mpoy’s
email advised Rhee that he had warned Presswood he would
“write directly to Chancellor Rhee” if Presswood failed to take
action to stop the disruption in his classroom, clearly indicating
that he thought direct contact with her was a way to report
classroom problems. J.A. 53.
Accordingly, we conclude that, under the Winder test,
Mpoy’s email constituted employee speech unprotected by the
First Amendment.
C
Winder, however, is not the last word on this subject. In
June of this year, the Supreme Court decided Lane v. Franks, in
which it held that the First Amendment “protects a public
employee who provided truthful sworn testimony, compelled by
subpoena,” at least where testifying was outside the scope of the
employee’s “ordinary job responsibilities.” __ U.S. __, __, No.
13-483, 2014 WL 2765285, at *3 (June 19, 2014); see id. at *5,
*7 n.4 (2014). In so holding, the Court focused particularly on
the nature of compelled testimony. See id. at *8. Moreover,
because it was “undisputed that Lane’s ordinary job
responsibilities did not include testifying in court proceedings,”
id. at *7 n.4, the Court, as in Garcetti, had no occasion to
consider how the scope of such responsibilities should be
determined in other circumstances. As a consequence, Lane
6
See Mpoy Email, J.A. 52 (“I am a special education teacher at
Ludlow Taylor ES.”); id. at J.A. 56 (“Sincerely, Bruno K. Mpoy,
Special Education Teacher, Ludlow Taylor ES”).
16
does not directly or necessarily contradict Winder’s application
of Garcetti.7
Nonetheless, 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,”
566 F.3d at 215, 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,” 2014
WL 2765285, at *8, or “ordinary job duties,” id. at *7.8 In
particular, the use of the adjective “ordinary” -- which the court
repeated nine times -- could signal a narrowing of the realm of
employee speech left unprotected by Garcetti. Neither Garcetti
nor any other previous Supreme Court case had added
“ordinary” as a qualifier.9
7
In Winder, we said that, although employee “testimony before
a city council might otherwise be just the sort of citizen speech
protected by the First Amendment,” Winder’s testimony was different
(and unprotected) because it was given “pursuant to his duty to
implement [specific court] orders.” 566 F.3d at 215. Lane expressly
declined to address “whether truthful sworn testimony would
constitute citizen speech under Garcetti when given as part of a public
employee’s ordinary job duties.” 2014 WL 2765285, at *7 n.4.
8
Lane also said that the critical question is not whether the speech
“merely concerns” an employee’s duties. 2014 WL 2765285, at *8.
This is in accord with Winder, which likewise said that speech is not
unprotected merely because it “‘concerns’ an employee’s job duties.”
566 F.3d at 216.
9
Garcetti did use the word in quoting a lower court opinion in
that case, see 547 U.S. at 416, and Justice Breyer used it in his dissent,
see id. at 444 (Breyer, J., dissenting).
17
But we need not resolve that question today. As the Court
noted in Lane -- and went on to hold in that case -- even if
speech is protected by the First Amendment, a court must
dismiss claims against a government official in his personal
capacity if the official is entitled to qualified immunity. 2014
WL 2765285, at *10. “Under [qualified immunity] doctrine,
courts may not award damages against a government official in
his personal capacity unless ‘the official violated a statutory or
constitutional right,’ and ‘the right was “clearly established” at
the time of the challenged conduct.’” Id. (quoting Ashcroft v.
al-Kidd, 131 S. Ct. 2074, 2080 (2011)). “The relevant question
for qualified immunity purposes,” the Court said, 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. Id. In Lane,
the Court found that precedent in the Eleventh Circuit, in which
the case was brought, “did not preclude [the defendant] from
reasonably holding that belief. And no decision of this Court
was sufficiently clear to cast doubt on the controlling Eleventh
Circuit precedent.” Id.As we held in Part II.B, under this circuit’s Winder test,
Mpoy’s email constituted unprotected employee speech. (And
no Supreme Court case at the time “cast doubt” on that
precedent.) A fortiori, the defendants could reasonably have
believed that they could fire Mpoy on account of that email.10
Indeed, even if we are wrong in concluding as a matter of law
that the email “report[ed] conduct that interfere[d] with his job
responsibilities,” Winder, 566 F.3d at 215, it surely would not
10
This assumes, of course, that the defendants did fire Mpoy on
account of the email -- an assumption we are required to make because
the district court dismissed the case under Rule 12(c). See Iqbal, 556
U.S. at 678-79.
18
have been unreasonable for the defendants to believe that it did,
and hence that it was lawful to fire Mpoy under Winder.
There is one further wrinkle to consider. The question
under the qualified immunity doctrine is whether the official
violated a right that was “clearly established at the time of the
challenged conduct,” and thus whether the defendants “could
reasonably have believed, at the time [they] fired” Mpoy that his
speech was unprotected. Lane, 2014 WL 2765285, at *10.
Winder was decided approximately a year after the defendants
fired Mpoy, and hence could not itself have been the basis for
reasonable belief on the part of the defendants. But Winder said
that the test it was articulating was the consistent holding of “our
cases applying Garcetti,” 566 F.3d at 215, and all of the cases
Winder cited were decided before Mpoy was fired.
Accordingly, because this court read its preexisting law as
yielding the test we announced in Winder, it could not have been
unreasonable for the defendants to do so as well. Presswood and
Rhee are therefore entitled to qualified immunity.
III
For the foregoing reasons, we conclude that the defendants
are entitled to qualified immunity on Mpoy’s First Amendment
claim. Whether Mpoy may obtain relief on his other, non-
federal claims is a question that is not before us, as Mpoy has
not appealed the district court’s decision declining to exercise
supplemental jurisdiction over those claims. Accordingly, the
judgment of the district court is
Affirmed.