                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



BRUNO K. MPOY,

       Plaintiff,
               v.                                          Civil Action No. 09-1140 (JEB)
ADRIAN FENTY, et al.,

       Defendants.


                                  MEMORANDUM OPINION

       In 2007, Plaintiff Bruno Mpoy was hired by the District of Columbia to work as a

special-education teacher at Ludlow Elementary School through the DC Teaching Fellows

Program. At the end of his first year of teaching, his employment was terminated in what he

claims was retaliation for complaints he had lodged with then-District of Columbia Public

Schools Chancellor Michelle Rhee. Mpoy’s complaints to Rhee concerned challenges he had

encountered as a teacher at Ludlow, as well as an allegation that the school’s principal, Donald

Presswood, had instructed him to falsify test results of his students.

       Mpoy initially brought this suit against the District and Presswood (the “District

Defendants”), Rhee, and The New Teacher Project alleging a violation of his First Amendment

rights under 42 U.S.C. § 1983 and also asserting five non-federal causes of action. In an earlier

decision, this Court dismissed the case against the New Teacher Project. See Mpoy v. Fenty, ---

F. Supp. 2d ---, 2012 WL 2512932 (D.D.C. July 2, 2012) (Mpoy I). The remaining Defendants

now separately move for judgment on the pleadings, arguing that Mpoy’s First Amendment

claim fails as a matter of law because his statements were made pursuant to his official duties as

a public employee and thus does not constitute protected speech. They also contend that even if

                                                  1
Mpoy’s speech were protected, Presswood and Rhee are entitled to qualified immunity. The

Court agrees with both arguments and thus will grant Defendants’ Motions as to Count I.

Having done so, the Court declines to exercise supplemental jurisdiction over Plaintiff’s

remaining state-law claims, which he may refile in the appropriate local court.

I.     Background

       According to Plaintiff’s Second Amended Complaint, which must be presumed true for

purposes of these Motions, Mpoy was recruited in 2007 to serve as a special-education teacher in

the D.C. Public Schools through the DC Teaching Fellows (DCTF) program. See Second

Amended Complaint, ¶¶ 28-29. By joining the DCTF program, Mpoy committed to teach in

DCPS for a minimum of four years in exchange for receiving tuition support for working

towards and receiving his teaching certification at George Washington University. See id., ¶¶

31-32. Accordingly, he began attending classes at GWU’s Graduate School of Education and

Human Development in the summer of 2007. See id., ¶ 37.

       Mpoy started teaching special-education students at Ludlow Elementary School at the

beginning of the 2007 school year. See id., ¶ 34. He faced a number of challenges at Ludlow,

including:

             •   a dirty classroom, see id., ¶ 39;

             •   insufficient teaching materials (including books), see id., ¶ 40;

             •   a lack of feedback from Presswood following his formal classroom observation,
                 see id., ¶¶ 42-45;

             •   “hostile, unprofessional, and unwilling,” and “disruptive” teaching assistants, id.,
                 ¶¶ 46-50; and

             •   a failure by the administration to respond to Mpoy’s concerns about classroom
                 facilities, supplies, and the teaching assistants.



                                                     2
See id., ¶¶ 40, 51-62, 76-78. Additionally, Mpoy claims that Presswood ordered him to falsify

student scores and records. See id., ¶¶ 63-75. “Presswood instructed Plaintiff to falsify the

[assessments of his special-education students] and other records of his special-education

students to make it seem that his students had demonstrated acceptable progress in accordance

with [D.C. and national requirements].” Id., ¶ 70. When Mpoy would not follow Presswood’s

instructions, the principal enlisted other teachers to falsify the records of Mpoy’s students. See

id., ¶¶ 72-74.

       Rather than working to resolve Mpoy’s concerns, Presswood “harass[ed] and threaten[ed]

Plaintiff and hindered his ability to teach.” Id., ¶ 79. In January and February 2008, Mpoy

received unwarranted warnings from Presswood accusing him of “excessive tardiness and failure

to follow lesson plans” and “accusing him of not monitoring students, failure to escort students

and failure to follow fire drill procedures.” See id., ¶¶ 80-81. Additionally, on May 7, 2008,

Mpoy was issued a five-day suspension, at Presswood’s recommendation, for “insubordination”

and failure “to follow instructions issued by your supervisor to conduct a classroom

observation.” Id., ¶¶ 82-83. Presswood also made allegations of corporal punishment against

Mpoy. See id., ¶ 85.

       On June 2, 2008, Mpoy sent an email to Chancellor Rhee describing his concerns about

classroom facilities, supplies, and the teaching assistants, as well as his distress that Presswood

had ordered him to falsify student records. See id., ¶ 86. In the email to Rhee, Mpoy requested

an investigation into these problems. See id., ¶ 93. Two days later, Mpoy was summoned to a

meeting in Presswood’s office, along with the director for DCTF and the DCPS Assistant

Director for Special Education. See id., ¶ 87. Presswood threatened to recommend that Mpoy

not be reappointed to his teaching position for the following year. See id., ¶ 88. Shortly



                                                  3
thereafter, Presswood issued Mpoy’s evaluation, indicating that Mpoy was either ineffective or

needed improvement in every area of evaluation. See id., ¶ 90. Plaintiff believed that this

evaluation “was baseless, as it is contradicted by the numerous statements of Plaintiff’s

colleagues and parents of his students that demonstrate Plaintiff was a hardworking teacher who

was effective in improving his students’ abilities and was consistently trying to improve his

teaching skills.” Id., ¶ 91.

        On July 9, 2008, Mpoy met with a representative from the Chancellor’s office and the

director for DCTF. See id., ¶¶ 94-95. During the meeting, Mpoy was informed that Presswood

had in fact recommended nonrenewal of his teaching position at Ludlow. See id., ¶ 95. Mpoy

returned to Ludlow for the first day of school on August 19, 2008, and was informed by the

school’s new principal that he had been terminated. See id., ¶¶ 98-99. That day he received a

copy of his termination letter (dated July 15, 2008), stating that “based on input from your

principal and your status as a probationary employee, your position as teacher with District of

Columbia Schools is terminated effective August 1, 2008.” See id., ¶¶ 100-103. Because he was

not continuing in his teaching role, Mpoy was no longer able to take courses at GWU. See id.,

¶¶ 105-06.

        Mpoy filed this suit on June 22, 2009. See ECF No. 1. He later filed a Second Amended

Complaint on June 15, 2011, setting forth six counts: deprivation of his rights under 42 U.S.C. §

1983, retaliation in violation of the D.C. Whistleblower Act, retaliation in violation of the D.C.

Human Rights Act, breach of contract for wrongful termination, breach of contract for failure to

pay tuition as promised, and civil conspiracy to wrongfully terminate Plaintiff. All counts were

asserted against the District Defendants and Rhee, and the last two also name The New Teacher

Project (TNTP). See ECF No. 77.



                                                 4
       On July 2, 2012, this Court issued a Memorandum Opinion granting TNTP’s Motion to

Dismiss and granting in part and denying in part the District Defendants’ Motion to Dismiss.

See Mpoy I, 2012 WL 2512932. The Court dismissed Count I (§ 1983) as to the District, but

allowed it to proceed against Defendants Rhee and Presswood in their individual capacities. The

Court also struck Plaintiff’s claim for punitive damages against the District, but allowed all other

claims against the District Defendants and Rhee to proceed. See id. Defendant Rhee and the

District Defendants have now separately filed the instant Motions for Judgment on the Pleadings

under Federal Rule of Civil Procedure 12(c).

II.    Legal Standard

       This Court evaluates a Rule 12(c) motion for judgment on the pleadings under the same

standard as a Rule 12(b)(6) motion to dismiss. See Robinson-Reeder v. Am. Council on Educ.,

532 F. Supp. 2d 6, 12 (D.D.C. 2008). The factual allegations presented in the Complaint must

thus be presumed true and should be liberally construed in Plaintiff’s favor. See Leatherman v.

Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164-68 (1993). The

notice-pleading rules are “not meant to impose a great burden upon a plaintiff.” Dura Pharm.,

Inc. v. Broudo, 544 U.S. 336, 347 (2005). Although “detailed factual allegations” are not

necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007), “a complaint must contain sufficient factual matter, [if] accepted as true, to state a claim

to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal

quotation omitted). Plaintiff must put forth “factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. Though a

plaintiff may survive a Rule 12(b)(6) motion even if “recovery is very remote and unlikely,”

Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), the facts


                                                  5
alleged in the complaint “must be enough to raise a right to relief above the speculative level.”

Id. at 555.

        A motion for judgment on the pleadings under Rule 12(c) must rely solely on matters

within the pleadings, see Fed. R. Civ. P. 12(d), which include statements adopted by reference as

well as copies of written instruments joined as exhibits. Fed. R. Civ. P. 10(c). Where the Court

must consider “matters outside the pleadings” to reach its conclusion, a motion for judgment on

the pleadings “must be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P.

12(d); see also Yates v. District of Columbia, 324 F.3d 724, 725 (D.C. Cir. 2003).

III.    Analysis

        Among the myriad challenges they raise to the causes of action in Plaintiff’s Second

Amended Complaint, Defendants principally argue that Plaintiff receives no First Amendment

protection for his email to Rhee because his statements therein were made pursuant to his official

duties as a public employee and thus do not constitute protected speech. Alternatively, they

argue that even if the speech were protected, Plaintiff’s claim would nonetheless be barred by

qualified immunity because his constitutional right to such speech was not clearly established at

the time of his email. Without this federal hook, Defendants urge the Court to decline to

exercise supplemental jurisdiction over the remaining common-law and statutory claims.

        Plaintiff initially responds that the Court has already rejected the First Amendment

arguments Defendants now advance, thus barring their reassertion under the law-of-the-case

doctrine. Even if the Court were to entertain Defendants’ arguments, Plaintiff maintains that his

speech was protected as he was speaking on a matter of public concern, and no qualified

immunity exists. Finally, Plaintiff argues that the Court need not exercise supplemental

jurisdiction over the remaining claims as diversity jurisdiction is also proper here.


                                                  6
       The Court will look at these issues separately, beginning with the law of the case, moving

to an analysis of the First Amendment issues at play, and then finishing with discussions of

qualified immunity and supplemental jurisdiction.

       A.     Law of the Case

       Plaintiff first argues that the Court need not address Defendants’ First Amendment

arguments as they are an “inappropriate attempt to get a second bite at the apple” and are barred

under the “law of the case” doctrine. Pl.’s Opp. at 10. Defendants counter that the Court has

never ruled on these issues, and, even if it had, the “law of the case” doctrine would not apply

because the decisions were not final. See Rhee Reply at 2-3; District Reply at 2-5.

       Under the law-of-the-case doctrine, “a court involved in later phases of a lawsuit should

not re-open questions decided . . . by that court or a higher one in earlier phases.” Crocker v.

Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir. 1995); see also LaShawn A. v. Barry, 87

F.3d 1389, 1393 (D.C. Cir. 1996) (en banc) (describing law-of-the-case doctrine as proposition

that “the same issue presented a second time in the same case in the same court should lead to

the same result”). The Court’s July 2, 2012, Memorandum Opinion, however, did not reach the

issues now raised, thus precluding any application of the doctrine. See Mpoy I, 2012 WL

2512932.

       In its Memorandum Opinion, the Court determined that Mpoy’s § 1983 claim (Count I)

could proceed against Defendants Rhee and Presswood in their individual capacities, but not

against the District of Columbia or Rhee and Presswood in their official capacities. See id. at *4.

Contrary to Plaintiff’s assertions, the Court’s did not “sub silentio” rule upon the substance of

this count. See Pl.’s Opp. at 9. While the District’s Motion to Dismiss did include an alternate

argument that Mpoy had not engaged in protected speech, see ECF No. 82-1 at 6-8, the Court



                                                 7
dismissed Count I against the District under a municipal-liability theory and never reached this

separate argument. See Mpoy I, 2012 WL 2512932 at *3-4. Nor did the Court analyze such

argument with respect to Defendants Rhee and Presswood; instead, it merely determined that

Count I could proceed to the extent Plaintiff was suing them in their individual capacities. See

id. at *4.

        As neither this Court – nor any appellate court – has reached the § 1983 issues raised

here, the law-of-the-case doctrine does not bar the Court’s evaluation of them.

        B.    First Amendment Protections for Public Employees

        Until 2006, Pickering v. Bd. of Educ., 391 U.S. 563 (1968), and Connick v. Myers, 461

U.S. 138 (1983), provided the framework for analyzing the scope of protections for speech made

by public employees. In Pickering, the Supreme Court held that a high school teacher’s letter to a

local newspaper criticizing the school’s athletics budget was a matter of public concern and was

thus protected speech. See 391 U.S. at 574. In doing so, it affirmed that public school teachers

do not relinquish their First Amendment right to speak on matters of public concern simply

because they are public employees. Id. at 563. The Court articulated a balancing test to assist in

resolving public-employee free-speech issues: “[T]he problem in any case is to arrive at 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. at 568.

        In Connick, the Supreme Court built on Pickering’s analysis, clarifying that a public

employee’s speech must pertain to matters of genuine public concern if it is to enjoy

constitutional protection. See 461 U.S. at 138. There, the Court held that an Assistant District

Attorney’s circulation of a questionnaire to other attorneys in her office concerning a number of



                                                  8
issues, including office transfer policy, office morale, the need for a grievance committee, the

level of confidence in supervisors, and whether employees felt pressured to work in political

campaigns, only presented matters of public concern with respect to the issue of political

pressure, and the Court ultimately concluded that the “limited First Amendment interest” did not

outweigh the government’s interest in effectively administering the office. Id. at 154.

       Under the Pickering-Connick framework, courts first determine whether an employee

spoke as a citizen on a matter of public concern. See Connick, 461 U.S. at 138-39. If not, the

employee has no cause of action for retaliation, and the court does not consider the second part of

the test, which requires balancing the employee’s interest as a citizen in commenting on public

matters and the employer’s responsibility to promote efficient public services. See Pickering, 391

U.S. at 568.

       The Supreme Court’s 2006 decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), altered

this analysis, requiring a court to first consider whether the public employee’s speech was

pursuant to his official duties; only if it finds that the employee is speaking as a private citizen

and not pursuant to his official duties will a court proceed to review the content of the speech. Id.

at 421-22. Garcetti involved a deputy district attorney’s memorandum to his supervisor

expressing his view that an affidavit used to obtain a search warrant contained serious

misrepresentations. Id. at 414. The Court explained that “[u]nderlying [the Supreme Court’s

employee-speech jurisprudence] has been the premise that while the First Amendment invests

public employees with certain rights, it does not empower them to ‘constitutionalize the employee

grievance.’” Id. at 420 (quoting Connick, 461 U.S. at 154). Specifically, Garcetti “h[e]ld 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



                                                   9
communications from employer discipline.” Id. at 421. Garcetti thus imposed a threshold inquiry

into whether the public employee was speaking pursuant to official duties before engaging in the

Pickering-Connick balancing. See Leverington v. City of Colorado Springs, 643 F.3d 719, 724

(10th Cir. 2011); Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. School Dist., 624

F.3d 332, 343 (6th Cir. 2010).

        Plaintiff, however, argues that this threshold inquiry is not necessary here because Garcetti

is “not applicable to cases related to scholarship or teaching, including speech in a public school

setting.” See Pl.’s Opp. at 12. Plaintiff’s broad contention stems from language within Garcetti

alluding to the intersection between the public-employee speech doctrine and academic freedom.

In a dissenting opinion, Justice Souter – joined by Justices Stevens and Ginsburg – raised

concerns about the impact of the majority’s opinion on academic freedom, where the

               ostensible domain beyond the pale of the First Amendment is
               spacious enough to include even the teaching of a public university
               professor, and I have to hope that today’s majority does not mean to
               imperil First Amendment protection of academic freedom in public
               colleges and universities, whose teachers necessarily speak and
               write “pursuant to . . . official duties.”

547 U.S. at 438-39 (Souter, J., dissenting). The majority acknowledged these concerns;

however, it ultimately declined to address them under the facts of the case:

               Justice Souter suggests today’s decision may have important
               ramifications for academic freedom, at least as a constitutional
               value. There is some argument that expression related to academic
               scholarship or classroom instruction implicates additional
               constitutional interests that are not fully accounted for by this
               Court’s customary employee-speech jurisprudence. We need not,
               and for that reason do not, decide whether the analysis we conduct
               today would apply in the same manner to a case involving speech
               related to scholarship or teaching.

Id. at 425.




                                                10
       Neither the Supreme Court nor this Circuit has issued a subsequent opinion providing

guidance on the applicability of Garcetti to a case involving speech related to scholarship or

teaching. Indeed, the continued lack of clarity on the issue was recognized by this Circuit in

Emergency Coal. to Defend Educ. Travel v. U.S. Dept. of the Treasury, 545 F.3d 4 (D.C. Cir.

2008). In a concurrence, Judge Edwards declined to delve into the contours of the academic-

freedom concept, acknowledging:

               The Court in Garcetti neither refutes the existence of academic
               freedom as a part of the First Amendment, nor rejects the
               suggestion that academic freedom may extend beyond the Court’s
               “customary employee-speech jurisprudence.” Rather, the Court
               simply leaves undecided the many questions relating to the concept
               and breadth of academic freedom. Prudence commands that we do
               the same, for the dispute in this case does not raise any serious
               questions about the contours of academic freedom.

Id. at 18 (Edwards, J., concurring).

       Similarly, this Court need not decide the scope of any academic-freedom exception to

Garcetti, as the speech at issue here does not involve scholarship, curricula, or pedagogy. On the

contrary, Plaintiff’s email to Rhee – the speech he claims is protected here – related to classroom

facilities, supplies, teaching assistants, and test scores. None of this pertains to academic

freedom or the expression of particular ideas. Plaintiff nonetheless attempts to extend the

“academic freedom” doctrine to anything related to school, teachers, or education. See Pl.’s

Opp. at 12-13 (contending that Garcetti should not apply “when deciding cases involving speech

by public school teachers” or to cases “in an academic setting”). Such a reading, however, is

unprecedented in its breadth.

       First, there is substantial doubt that the Garcetti exception would even apply to

elementary-school teachers. The Sixth Circuit noted as much in Evans-Marshall, where it




                                                 11
rejected a high school teacher’s argument that “academic freedom” should apply to in-class

curricular speech:

               As a cultural and a legal principle, academic freedom “was
               conceived and implemented in the university” out of concern for
               “teachers who are also researchers or scholars-work not generally
               expected of elementary and secondary school teachers.” J. Peter
               Byrne, Academic Freedom: A “Special Concern of the First
               Amendment”, 99 Yale L.J. 251, 288 n. 137 (1989). “[U]niversities
               occupy a special niche in our constitutional tradition” and the
               constitutional rules applicable in higher education do not
               necessarily apply in primary and secondary schools, where
               students generally do not choose whether or where they will attend
               school. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1,
               551 U.S. 701, 724-25 (2007).

624 F.3d at 343-44.

       Second, even if the exception applied outside the university context, it surely would not

apply in a case involving speech that does not relate to either scholarship or material taught. A

close parallel is found in Kelly v. Huntington Union Free School Dist., 2012 WL 1077677

(E.D.N.Y. March 30, 2012), where an elementary school teacher claimed her First Amendment

rights were violated when her employer retaliated against her for complaints regarding “(1) [her

supervisor’s] alleged improper support of a specific Board candidate by giving out parents’

addresses, (2) [her supervisor’s] alleged improper tutoring of a student in violation of school

policy, and (3) allegedly unsafe boating conditions on a school trip.” Id. at *12. The court’s

inquiry focused on the substance of the speech and determined that the academic-freedom

concerns of Garcetti were not implicated where

               [t]he speech at issue here, in an elementary school, related not to academic
               freedom or the substance of classroom instruction, but rather issues of safety,
               teacher staffing, misuse of school information, and violation of school policy.
               Thus, any potential exception to Garcetti for cases centered on academic freedom
               has no applicability here.

Id. at *15 n.18.

                                                 12
       Just as in Kelly, Plaintiff’s complaints here had nothing to do with academic freedom.

Cf. Adams v. Trustees of the Univ. of N.C.-Wilmington, 640 F.3d 550 (4th Cir. 2011)

(academic-freedom exception applied to public-university professor’s academic scholarship

pubished in columns, books, and commentaries). With no authority supporting Plaintiff’s

expansive reading of the academic-freedom doctrine, this Court declines his invitation to extend

the doctrine to cover speech that involves neither curricula nor scholarship, merely because it

was made by a teacher. The Court, accordingly, will review Mpoy’s speech pursuant to the

normal framework set forth in Garcetti.

       C.      Public Employee vs. Private Citizen

       Having found that Garcetti applies, the Court must next determine whether – as a matter

of law – the statements at issue were made by Mpoy pursuant to his official duties or as a private

citizen. Courts have recognized that the inquiry into whether speech was made pursuant to an

employee’s “official duties is ‘a practical one,’” focused on whether the speech “was part-and-

parcel of [the employee’s] concerns about his ability to properly execute his duties.” Weintraub

v. Bd. of Educ. of City Sch. Dist. of the City of New York, 593 F.3d 196, 202 (2d Cir. 2010)

(citations and internal quotation marks omitted). “The inquiry into whether a public employee is

speaking pursuant to her official duties is not susceptible to a brightline rule.” Ross v. Breslin,

693 F.3d 300, 306 (2d Cir. 2012). Courts must examine the nature of the plaintiff’s job

responsibilities, the nature of the speech, and the relationship between the two. See Weintraub,

593 F.3d at 201-02. Context, such as whether the complaint was also conveyed to the public,

may properly influence a court’s decision. See id. at 205.

       In Adams v. New York State Educ. Dep’t, 752 F. Supp. 2d 420 (S.D.N.Y. 2010), a court

in the Southern District of New York rejected claims by teachers that the complaints they had



                                                 13
filed with school authorities alleging a principal’s falsification of attendance and grade records

was not related to their responsibilities as public school teachers. Id. at 429. The court

determined that this speech was within the scope of their professional duties as teachers:

                  Only in an odd Wonderland world could a court of law find it
                  plausible that a public school principal’s explicit order to a teacher
                  directing her to falsify her own students’ grades “has no bearing”
                  on the teacher’s official responsibilities as a teacher . . . . Under
                  Iqbal’s “common sense” counsel, as well as under Garcetti’s
                  “practical” test, that proposition cannot hold. Plaintiffs cannot
                  plausibly establish that their complaining about a principal’s
                  falsification of student grades or attendance records is not “part-
                  and-parcel” of their concerns as school teachers.

Id. at 430.

         The complaints raised by Mpoy are similarly “part-and-parcel” of his concerns as a

school teacher. In the June 2, 2008, “Request for Investigation” email sent to Rhee, Mpoy

frames his concerns as those of an employee of the District: “I am a special education teacher at

Ludlow Taylor ES. As a teacher, my primary duty is to ensure student achievement. I strive to

create and maintain a safe and appropriate environment conducive to learning.” Rhee Mot.,

William L. Drake Declaration, Exh. 1 (June Email). 1

         The email continues, with Mpoy focusing his concerns on specific issues personal to his

work at the school:

                  1) I was suspended without pay and without due process; 2) my
                  DCPS e-mails containing documentation and evidence of wrong
                  doing were illegally deleted and compromised; 3) Dr. Presswood,
                  the principal of Ludlow Taylor, misrepresented students’
                  performance and results on the DCCAS Alternative; 4) the
                  paraprofessionals and possibly Dr. Presswood induced students to

         1
          Where, as here, an exhibit is incorporated by reference into the complaint, a court may consider it without
converting the motion into one for summary judgment. See Vila v. Inter-Am. Inv., Corp., 536 F. Supp. 2d 41, 46
n.5 (D.D.C. 2008) (citing Kurtis A. Kemper, What Matters not Contained in Pleadings may be Considered in Ruling
on a Motion to Dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure or Motion for Judgment on the
Pleadings under Rule 12(c) without Conversion to Motion for Summary Judgment, 138 A.L.R. Fed. 393 (1997)).


                                                         14
               lie and to disrupt the educational process; 5) the paraprofessionals
               engaged in a campaign to disrupt the educational process; 6) I
               apprised Dr. Presswood of the paraprofessionals’ conduct with
               more than twenty emails; and he failed to respond to any of them
               or take action of any kind; 7) I asked Dr. Presswood to grant me
               permission to request consent from parents for me to install a video
               camera in my classroom; he never responded; 7) [sic] and I stated
               in one of my e-mails to Dr. Presswood that if the paraprofessionals
               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. Of the eight enumerated grounds for investigation, seven pertain to actions that exclusively

involve Mpoy’s classroom. Id. Only his third claim alleging that the school’s principal

“misrepresented students’ performance and results on the DCCAS Alternative” can be

understood to raise broader claims about the functioning of the school. Id. Beyond this mention,

however, the lengthy email detailing the challenges Mpoy claims to have experienced contains

no discussion of this issue. See id.

       Mpoy’s email sets forth eight complete paragraphs detailing the events surrounding his

complaint, including:

               •   the school’s failure to provide Mpoy with books for his students, see id., ¶ 1;

               •   concerns about the conduct and attire of Mr. Walker, a paraprofessional
                   assigned to work in Mpoy’s classroom, which ultimately resulted in his
                   removal from the classroom, see id., ¶¶ 2-3;

               •   “unprofessional conduct” by the remaining paraprofessional (Mrs. Lacey) in
                   Mpoy’s classroom, id., ¶ 4;

               •   refusal by principal to provide Mpoy with feedback from his classroom
                   performance observation, see id.;

               •   failure to distribute work Mpoy had left for students to complete when he took
                   leave, see id., ¶ 5;

               •   verbal abuse by paraprofessionals (including referring to Mpoy as a “liar,
                   backstabbing snitch”), id., ¶ 6;


                                                15
               •   an ongoing “campaign to disrupt the educational process” by
                   paraprofessionals, which included: showing non-educational movies during
                   instructional time, taking additional recess during instructional time, playing
                   non-educational games with students during instructional time, “inciting
                   students to disrupt the educational process,” “inducing students to lie,”
                   “allowing the cell phone to ring to rap music which students sing when the
                   cell phone rings,” etc., id., ¶¶ 6-7; and

               •   Presswood’s failure to respond to the conduct discussed above and general
                   inaction in response to above claims.

See id., ¶ 8. The email also includes a paragraph detailing Mpoy’s pursuit of personal grievances

with his direct supervisor – the school’s principal – and his dissatisfaction with this process. See

id.

       The “form and context” in which Mpoy’s complaints were made “are indicative of the

fact that they intended to address only matters connected with” his job at Ludlow. See Boyce v.

Andrew, 510 F.3d 1333, 1343 (11th Cir. 2007). In Boyce, the Eleventh Circuit rejected a claim

by caseworkers at a county Department of Family and Children Services that their complaints

about working conditions were protected by the First Amendment:

               A “public employee may not transform a personal grievance into a
               matter of public concern by invoking a supposed popular interest
               in the way public institutions are run.” “[T]he relevant inquiry is
               not whether the public would be interested in the topic of the
               speech at issue but rather is ‘whether the purpose of the [the
               plaintiff’s] speech was to raise issues of public concern.’” . . .
               The record in this case reveals that the speech of [plaintiffs], while
               ostensibly intermingled with issues of child safety and DeKalb
               DFCS mismanagement, was not intended to address matters of
               public concern from the perspective of a citizen. See White Plains
               Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (2d Cir. 1993)
               (recognizing that “[e]ven as to an issue that could arguably be
               viewed as a matter of public concern, if the employee has raised
               the issue solely in order to further his own employment interest, his
               First Amendment right to comment on that issue is entitled to little
               weight”).

510 F.3d at 1344-45 (some internal citations omitted).


                                                 16
       In Weintraub, moreover, the Second Circuit found that a teacher’s grievance concerning

the handling of a student who had thrown books at him in his classroom related to the teacher’s

ability to maintain the classroom discipline necessary for effective teaching and was thus “part-

and-parcel of his concerns about his ability to properly execute his duties”; as a result, the

complaint was uttered by the teacher as an employee, rather than as a private citizen. 593 F.3d at

202-04 (citations and internal quotation marks omitted). Similarly, in Dorcely v. Wyandanch

Union Free School Dist., 665 F. Supp. 2d 178 (E.D.N.Y. 2009), the court held that “[t]he

substance of Plaintiff’s complaints concerning the lack of sufficient educational and instructional

resources and the appropriateness of the counseling curriculum are matters relating to Dorcely’s

own job responsibilities as an educator and school psychologist, and therefore is unprotected

speech.” Id. at 207; see also Ankney v. Wakefield, No. 10-1290, 2012 WL 2339683, at *6-7

(W.D. Pa. June 19, 2012) (finding teacher’s duties encompassed reporting unsafe conditions at

school in order to have them remedied, such that reporting of these issues was not entitled to

private-citizen First Amendment protection); Kelly, 2012 WL 1077677, at *12-14 (“internal

complaints by teachers about student/teacher issues based upon information learned through their

jobs – whether it be safety issues, staffing/service issues, violation of school policy, or misuse of

school property/information – constitute speech as a public employee, rather than a private

citizen, and are not protected by the First Amendment” (emphasis in original) (collecting cases));

Massaro v. Dep’t of Educ. of the City of New York, No. 08-10678, 2011 WL 2207556, at *3

(S.D.N.Y. June 3, 2011) (“Plaintiff’s complaints regarding the sanitary conditions in her

classroom and the health concerns that arose from them were made pursuant to her duties as an

employee . . . . Communications of concerns about such matters are, thus, part and parcel of a

teacher’s duties as a public employee . . . .”); Medina v. Dep’t of Educ. of City of New York, No.



                                                 17
10-1180, 2011 WL 280800, at *3-4 (S.D.N.Y. Jan. 14, 2011) (guidance counselor’s complaints

about school’s policy on suspension and inadequate supervision of students were within scope of

his official duties for First Amendment purposes); Felton v. Katonah Lewisboro Sch. Dist.,

No. 08-9340, 2009 WL 2223853, at *5 (S.D.N.Y. July 27, 2009) (teachers’ complaints regarding

“school supplies for their kindergarten class, the physical state of the classroom in which they

taught, the appropriateness of the curriculum, the inadequacy of their student profiles, and the

safety implications . . . of those inadequate student profiles” were made pursuant to their duties

as educators to ensure “that a classroom is well supplied, safe, and conducive to learning”);

Shums v. New York City Dep’t of Educ., No. 04-4589, 2009 WL 750126, at *14 (E.D.N.Y.

March 17, 2009) (teacher’s speech regarding adequacy of state-mandated instruction provided to

students was not entitled to constitutional protection); Smith v. Beaufort Cnty. Sch. Dist., No.

06-185, 2008 WL 821809, at *9 (D.S.C. March 25, 2008) (teacher’s complaints about her

coworkers, working environment, and alleged mistreatment of students were made pursuant to

her duties as a teacher and were not protected by the First Amendment); Renken v. Gregory, 541

F.3d 769, 774-75 (7th Cir. 2008) (professor’s claim of retaliation for lodging complaints about

dean over budget dispute was barred by Garcetti, as professor was speaking as an employee,

rather than as a private citizen).

        Despite this substantial body of caselaw, Mpoy nonetheless contends that he was

speaking as a public citizen when he made disclosures regarding “waste, abuse, fraud, unethical

conduct, and ineffective and/or illegal use of funds in the public education system” because he

had “no administrative, managerial, operational, investigative, or compliance-related

responsibilities” in his role as a special-education teacher. Pl.’s Opp. at 18. The Court finds this




                                                 18
understanding of his duties to be too formalistic, ignoring the realities of the responsibilities of

public school teachers, as set forth in the authorities cited above.

       Additionally, while not dispositive, the fact that Mpoy raised his complaints up the chain

of command supports the Court’s conclusion that the speech was undertaken pursuant to his job.

See Fox v. Traverse City Area Public Schools Bd. of Educ., 605 F.3d 345, 349-50 (6th Cir.

2010) (“‘Cases from other circuits are consistent in holding that when a public employee raises

complaints or concerns up the chain of command at his workplace about his job duties, that

speech is undertaken in the course of performing his job.’”) (quoting Davis v. McKinney, 518

F.3d 304, 313 (5th Cir. 2008)). Mpoy claims that he was not reporting up the chain of command

when he contacted Rhee as “DCPS is a sophisticated modern bureaucracy with many layers of

management, and it may be surmised that Defendant Rhee was not an immediate or intermediate

supervisor of Mpoy or Presswood . . . . Mpoy reported outside his chain of command to an

official several levels above his supervisor.” Pl.’s Opp. at 18 n.4. The Court, however, finds this

distinction unhelpful. As the Second Circuit held in Ross, where a plaintiff decides to “tak[e] a

complaint up the chain of command to find someone who will take it seriously[, it] ‘does not,

without more, transform [her] speech into protected speech made as a private citizen.’” 693 F.3d

at 307 (internal citations omitted).

       As Chancellor, Rhee was responsible for the administration of the District’s school

system, and Mpoy’s decision to raise internal complaints with her, as opposed to the media,

further supports the conclusion that his speech was made pursuant to his duties as teacher. See,

e.g., Kelly, 2012 WL 1077677, at *12-14 (teacher’s complaints regarding her supervisor’s

improper conduct were made as public employee where such complaints were pursuant to her

general duties as a teacher, were directed at school administration (rather than news media or



                                                  19
third parties outside of school), and “resulted from special knowledge gained through plaintiff’s

employment”).

        Although the Court is not unsympathetic to what Plaintiff alleges occurred here – indeed,

his allegations are quite troubling, particularly in the realm of falsification of test scores – it

nonetheless cannot find that Plaintiff has alleged a violation of the First Amendment. His other

claims – e.g., for wrongful termination or as a whistleblower – may ultimately fare better,

although the Court offers no opinion here on their merits.

        D.     Qualified Immunity

        Even if this Court were to find Plaintiff’s speech to be protected, his § 1983 claim against

Presswood and Rhee – the District having been dismissed earlier – would nonetheless be barred

by qualified immunity. To determine whether an official is entitled to qualified immunity, the

Court must consider whether the facts, viewed in the light most favorable to the plaintiff,

establish a violation of a constitutional right and, if so, whether that right was clearly established

at the time of the alleged violation. See Pearson v. Callahan, 555 U.S. 223, 231-43 (2009). The

Court has the discretion to decide “which of the two prongs of the qualified immunity analysis

should be addressed first in light of the circumstances in the particular case at hand.” Id. at 236.

        In this case, the Court’s analysis begins and ends with the second prong of the qualified-

immunity inquiry. For the reasons set forth in Sections III.B-C, supra, the Court finds that the

contours of the right at issue in this case were not sufficiently clear such that Defendants Rhee

and Presswood would have reasonably understood that their actions violated Mpoy’s rights. “An

official enjoys protection from a lawsuit where [his] conduct is objectively reasonable in light of

existing law. Conversely, an officer is not shielded where he could be expected to know that

certain conduct would violate statutory or constitutional rights.” Brown v. Fogle, 819 F. Supp.



                                                   20
2d 23, 28-29 (D.D.C. 2011) (quoting Farmer v. Moritsugu, 163 F.3d 610, 613 (D.C. Cir. 1998)

(internal quotation marks omitted)).

         Even if this Court had employed the pre-Garcetti standard and determined that Mpoy

was “speaking on a matter of public concern,” as Plaintiff urged it to do, the Court cannot find

that this right was clearly established at the time of the violation. Indeed, Plaintiff’s Opposition

acknowledges the uncertainty of the public-employee-speech jurisprudence as it applies to

teachers in different settings. See, e.g., Pl.’s Opp. at 12-13 (noting lack of guidance from

Supreme Court or D.C. Circuit on Garcetti’s application to public school teachers); see also

Butera v. Dist. of Columbia, 235 F.3d 637, 654 (D.C. Cir. 2001) (constitutional right not clearly

established where there was “lack of clarity in the law of the circuits”). Plaintiff thus cannot

plausibly claim that Rhee or Presswood could have been expected to know that their conduct

violated Mpoy’s rights. Mpoy’s § 1983 claim against Defendant Presswood and Rhee,

accordingly, would be barred by qualified immunity even if the Court found it was legally

sufficient.

        E.     Supplemental Jurisdiction

        Having dismissed the sole federal claim, the Court must determine whether to retain

jurisdiction over the remaining state-law claims (Counts II, III, IV, V & VI). Plaintiff argues that

the Court need not address the question of supplemental jurisdiction, as “even without [his

federal claim], the Court still has diversity jurisdiction over Mr. Mpoy’s statutory and common

law claims.” See Pl.’s Opp. at 41. Plaintiff’s argument is flawed, however, because “the

District, like the fifty states, is not subject to diversity jurisdiction.” Long v. Dist. of Columbia,

820 F.2d 409, 414 (D.C. Cir. 1987). The Court must, consequently, determine whether to

exercise supplemental jurisdiction here.



                                                  21
        Federal district courts are given supplemental (or “pendent”) jurisdiction over state

claims that “form part of the same case or controversy” as federal claims over which they have

original jurisdiction. 28 U.S.C. § 1367(a). By the same token, they “may decline to exercise

supplemental jurisdiction over [such] claim[s] . . . if . . . the district court has dismissed all claims

over which it has original jurisdiction[.]” § 1367(c)(3). The decision of whether to exercise

supplemental jurisdiction where a court has dismissed all federal claims is left to the court’s

discretion as “pendent jurisdiction is a doctrine of discretion, not of plaintiff's right.” United

Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). When deciding whether to

exercise supplemental jurisdiction over state claims, federal courts should consider “judicial

economy, convenience and fairness to litigants.” Id. “[I]n the usual case in which all federal-

law claims are eliminated before trial, the balance of factors to be considered under the pendent

jurisdiction doctrine – judicial economy, convenience, fairness, and comity – will point toward

declining to exercise jurisdiction over the remaining state-law claims.” Carnegie–Mellon Univ.

v. Cohill, 484 U.S. 343, 350 n.7 (1988); see also Edmondson & Gallagher v. Alban Towers

Tenants Ass’n, 48 F.3d 1260, 1267 (D.C. Cir. 1995) (finding the discretion set out in Carnegie–

Mellon Univ. “unaffected by the subsequent enactment of 28 U.S.C. § 1367(d), in the Judicial

Improvements Act of 1990”).

        Here the factors weigh against retention of the case. All federal claims against

Defendants have been dismissed. The case has not progressed in federal court past motions for

judgment on the pleadings, discovery has just commenced, and the Court has developed little

familiarity with the issues presented. Cf. Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d

370, 378 (D.C. Cir. 2010) (finding district court appropriately retained pendent jurisdiction over

state claims where it had “invested time and resources” in case). The Court can thus conceive of



                                                   22
no undue inconvenience or unfairness to the litigants that would result from such a decision.

Finally, Plaintiff will not be prejudiced because 28 U.S.C. § 1367(d) provides for a tolling of the

statute of limitations during the period the case was here and for at least 30 days thereafter. See

Shekoyan, 409 F.3d at 419 (affirming district court finding that because of tolling, dismissal of

pendent state claims “will not adversely impact plaintiff’s ability to pursue his District of

Columbia claims in the local court system”) (internal citation omitted). Therefore, to the extent

the statute of limitations had not already run on Plaintiff’s state-law claims at the time he filed

this suit, this Court’s decision to decline supplemental jurisdiction over such claims will not

prejudice him. The Court, therefore, will dismiss Mpoy’s remaining claims without prejudice,

and Plaintiff may bring such claims, if not barred, in the appropriate state or local court.

IV.    Conclusion

       For the foregoing reasons, the Court will issue a contemporaneous Order granting

Defendant Rhee and Defendants District of Columbia and Presswood’s Motions for Judgment on

the Pleadings.

                                                       /s/ James E. Boasberg
                                                       JAMES E. BOASBERG
                                                       United States District Judge

Date: November 5, 2012




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