Bruno Mpoy v. Michelle Rhee

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

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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.