Employment Law Daily Teacher who admitted inappropriate conduct could not link his political speech to discipline
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Thursday, November 30, 2017

Teacher who admitted inappropriate conduct could not link his political speech to discipline

By Lorene D. Park, J.D.

Affirming summary judgment against First Amendment retaliation claims by a teacher who was suspended, investigated, and issued a notice of termination (he was instead transferred) after a student complained of a sex-related comment and an investigation uncovered other inappropriate conduct, the Fourth Circuit found there was insufficient evidence, beyond mere speculation, to establish a causal link between the adverse actions and the teacher’s prior political activities. Thus, the school board was not subject to municipal liability. Summary judgment was also affirmed against his conspiracy claims and a tortious interference claim against a state politician who allegedly harbored a grudge from prior elections (Penley v. McDowell County Board of Education, November 28, 2017, Thacker, S.).

The teacher at McDowell County High School (MHS) was generally well respected among students and had a nearly-spotless personnel record. He also worked as a media strategist on political campaigns. In 2004, 2006, and 2008, he worked for politicians running against North Carolina House of Representatives Member Robert Gillespie. As early as 2006 and continuing through 2012, Gillespie vocalized disdain for the teacher to MHS’s former principal and former superintendent. The principal warned the teacher that Gillespie wanted him fired. Gillespie allegedly also told the teacher directly he would pay him back for his campaign work and “beat [him] like a bad drum.” At the beginning of the 2012–2013 school year, Gillespie toured MHS with the new superintendent. During the tour, he refused to enter the teacher’s class, explaining the employee had “worked against” him in elections. Gillespie also allegedly approached the principal to remind him of Gillespie’s contempt for the teacher.

Inappropriate remark. Fast forward to April 17, 2013, when the teacher told students in one class, “There is a study out there that says that men think about sex every six seconds, unless you happen to be sitting next to your girlfriend, and it might be more like four seconds.” Two students, a boyfriend and girlfriend, were seated next to each other and she became upset, believing the comment was directed at her. The teacher apologized to her during lunch and later saw her crying in the library. When she exited, he confronted her in the stairwell with the goal (as he admitted in deposition) of preventing her from going to the principal.

Investigation. The girl’s mother reported the comment and the assistant superintendent had the newly hired principal investigate. The student’s account of the incident suggested the teacher targeted the students after hearing them laugh at his six-second comment, saying “I bet you know all about that don’t you? Only it’s every four second since your girlfriend is sitting right next to you. I bet it’s six seconds any other time. Right, [girlfriend’s name]?” During the investigation, the principal learned of an inappropriate Facebook exchange between the teacher and a student, including comments on a shirtless photo of the student. The superintendent decided the teacher should be suspended pending a more in-depth investigation, which uncovered other inappropriate behavior, including Facebook activity and class discussions about sex. Although the teacher was issued a notice of intent to recommend dismissal, after an administrative hearing, he was reinstated to a different position at a different institution.

The employee filed suit against the Board, Gillespie, the new superintendent, and new principal, and a school board member, alleging First Amendment retaliation and conspiracy, among other claims. The district court granted summary judgment against his claims and he appealed.

Board not liable. Affirming, the Fourth Circuit first concluded that the board was not subject to municipal liability. Significantly, there was no evidence the board knew of any constitutional violation, or that it participated in or condoned a violation, and the teacher admitted that the board had no authority to act regarding the notice and suspension over which the superintendent had final authority. “A county board of education ‘cannot be held liable for personnel decisions over which it did not retain final review authority; that is, it is not liable for decisions committed to [the superintendent’s] discretion because there is no respondeat superior liability under § 1983,’” explained the court.

No causal link to suggest retaliation. As to the remaining defendants, the teacher’s First Amendment retaliation claim failed for lack of any evidence, beyond speculation, that established a prima facie causal link between his political speech and the suspension, investigation, and recommendation of dismissal. Neither the board member nor Rep. Gillespie took any employment action, so they were entitled to summary judgment. And the teacher admitted in deposition that the principal who conducted the investigation of the student’s complaint was not motivated by a desire to punish him for political activities. As to the new superintendent, mere knowledge of protected speech eight or nine months before an investigation was “simply not a sufficient basis for a reasonable inference” of causation.

Even assuming that the teacher could prove a prima facie case of retaliation, continued the appeals court, the defendants could avoid liability under the Mt. Healthy defense because they demonstrated by a preponderance of evidence that the investigation, suspension, and notice would have been issued even absent the protected conduct. This was particularly true considering that the teacher admitted the comments prompting the investigation were inappropriate.

Conspiracy claim failed too. Summary judgment was also affirmed against the teacher’s civil conspiracy claim under Section 1983. The appeals court agreed with the lower court that the claim failed because there had been no constitutional deprivation (the retaliation claim failed) and there was no evidence, beyond “rank speculation and conjecture,” that would allow a jury to find that a conspiracy existed. For example, the teacher admitted there was no evidence the board member influenced the superintendent or had any discussion about the employee with Rep. Gillespie before the lawsuit was filed. Likewise, he admitted he had “no actual evidence” that the new principal ever entered a conspiracy or agreement to pursue disciplinary proceedings.

Other claims. Making short work of the remaining claims, the appeals court affirmed summary judgment against the state constitutional claim on the same grounds as the First Amendment claim. The tortious interference claim against Rep. Gillespie failed because there was no evidence that he intentionally induced any other defendant to breach the teacher’s contract of employment. And the malicious prosecution claim failed because there was no evidence that would support a finding, in light of the facts and circumstances known to the superintendent, that it was unreasonable to commence a prosecution against the teacher.

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