Lead Opinion
Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge Duncan joined. Judge Wilkinson wrote a concurring opinion.
Stanley. Jeffrey Penley (“Appellant”) was a.teacher at McDowell County High School (“MHS”) from 2006 to 2013. He also regularly worked as a media strategist on political campaigns. .Following an incident in Appellant’s classroom in April 2013 in which he made an inappropriate comment to his students, Appellant was suspended, investigated, and recommended for dismissal. Appellant initiated this action against the school principal, the superintendent, the board of education, a board member, and a member of the North Carolina ' House of Representatives alleging the suspension, investigation, and recommendation of dismissal were in retaliation for his political speech.
The district court’ granted summary judgment to Appellees and dismissed the case. Because Appellant has not put forward evidence beyond mere speculation in support of his claims, he cannot make a prima facie showing of retaliation. Accordingly, we affirm the decision of the district court.
I.
A.
We view the relevant facts “in the light most favorable to the nonmoving party,” Appellant. Grutzmacher v. Howard Cty.,
In 2004, 2006, and 2008, Appellant also worked on campaigns of politicians running against North Carolina House of Representatives Member Robert Gillespie (“Gillespie”). As early as 2006 and continuing through 2012, Gillespie vocalized his disdain for Appellant to MHS’s former principal, Ben Talbert (“Talbert”), and former superintendent, Mike Murray (“Murray”). After these conversations, Talbert and Murray warned Appellant that Gillespie wanted him terminated. Additionally, as a result of Appellant’s campaign work, Gillespie allegedly threatened Appellant directly saying he would pay Appellant back and “beat [him] like a bad drum.” J.A. 785:13—14.
At the beginning of the 2012-2013 school year, Gillespie toured MHS with the newly hired superintendent, Gerri Martín (“Martin”). During the tour, Gillespie refused to enter Appellant’s-classroom, explaining to Martin that Appellant had “worked against [Gillespie] in previous elections.” J.A. 663:3-664:9. When Gillespie and Martin approached Appellant’s classroom doorway, Gillespie allegedly pulled Martin back and said “that’s the one I’ve been telling you about.” Id. at 475:1-7. On the same day, Gillespie also approached Talbert to remind him of Gillespie’s contempt for Appellant.
B.
Fast forward to April 17, 2013. On that day, during AP Government class, Appellant told his students, “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.” J.A. 381:9-19. Two students, a boyfriend and girlfriend, were seated next to each other when Appellant made this comment. The girlfriend became upset, believing it to be directed at her. During the mid-class lunch break that day, Appellant apologized to the girlfriend. Later in the day, Appellant wifr nessed the girlfriend crying in the library
C.
After the girlfriend’s mother complained about Appellant, the newly hired principal, Natalie Gouge (“Gouge”), contacted the assistant superintendent, Mark Garrett (“Garrett”), who instructed Gouge to begin an investigation. On April 18, 2013, Gouge met with the girlfriend to discuss the comment. The girlfriend gave Gouge handwritten notes of her recollection of the incident. The notes reflect that Appellant targeted her and her boyfriend by saying “What are you guys laughing about? Oh [boyfriend], I bet you know all about that don’t you? Only it’s every four seconds since your girlfriend is sitting right next to you. I bet it’s six seconds any other time. Right, [girlfriend]?” J.A. 1169. The same day, Gouge interviewed Appellant and other students. During Appellant’s interview, he admitted that the in-class comment was not part of his curriculum. During the student interviews, Gouge also learned of an inappropriate Facebook exchange between Appellant and a student. The exchange was a series of comments on a shirtless photo of. the student. The exchange is as follows:
Appellant: [Student], I’m going to have to de-friend you if you don’t put some clothes on. Are you trying to join NAM-BLA12
Student: Mr. Penly [sic], why are you checking me out with no clothes on. Appellant: Hey, you sent that pic to me. You know i’m [sic] happily married. And you obviously have [started.] playing for the other TEAM!
Student: Hahahahaha I meant to send it to Julia sorry.
Id. at 536.
After these interviews, Gouge drafted a letter of reprimand dated April 22; 2013. Before delivering the letter to Appellant, Gouge consulted with Martín. Martin declined to- issue a letter of reprimand and instead opted to suspend Appellant with pay pending further action. Martin instructed that a more in-depth investigation take place. . . .
As part'of this further in-depth investigation, on April 24, 2013, Gouge interviewed all of the students present in Appellant’s class when -the offending comment was made. In the interviews, some of the students’ accounts supported the claim that Appellant directed his statement at the girlfriend and boyfriend. ■ Other students could not remember what was said or what happened. Significantly, none of the students said that the comment was not directed at the girlfriend and boyfriend. Furthermore, on May 6, 2013, Appellant participated in a recorded interview with Martin and two other administrators related to the comment, the Facebook exchange, and other inappropriate behavior uncovered
D.
On August 21, 2013, Martin issued a notice of intent to recommend dismissal (“Notice”) to Appellant. The Notice contained six alleged violations: (i) immorality; (ii) insubordination; (iii) neglect of duty; (iv) failure to fulfill the duties and responsibilities imposed upon teachers by the general statutes of North Carolina; (v) failure to comply with such reasonable requirements as the board may prescribe; and (vi) any cause which constitutes grounds for the revocation of the career teacher’s teaching license. Then, in September 2013, Martin-left her position as superintendent, and Garrett became the interim superintendent.
Appellant requested that the grounds for Martin’s Notice be reviewed by a hearing officer at an administrative hearing. In late October 2013, an administrative hearing was conducted regarding the Notice. Appellant was able to present evidence and cross examine witnesses. Ultimately, the hearing officer found that the evidence against Appellant did not warrant Appellant’s termination. Garrett then reinstated Appellant to a position at a different institution, Early College, in McDowell County.
Also in the fall of 2013, Appellant attended a teachers’ rally at the McDowell County courthouse. Two incumbent McDowell County Board of Education members and one former Board member also attended the rally. Appellant alleges that the Board members told him that another Board member, Russell H. Neighbors (“Neighbors”), and Martin were conniving to have Appellant terminated and that the charges against him “were garbage concocted by ... Martin [sic].” J.A. 508:10-11.
E.
Appellant filed his initial complaint in the Western District of North Carolina on July 7, 2014, against the Board, Gillespie, Martin, Gouge, and Neighbors (collectively, “Appellees”). He filed an amended complaint on September 12, 2014, alleging the following six claims:
(1) Count I—First Amendment Retaliation pursuant to 42 U.S.C § 1983 against Neighbors, Martín, and Gouge in their individual capacities and Gillespie and the Board;
(2) Count II—Civil Conspiracy against Martin, Neighbors, Gouge, and Gillespie in their individual capacities;
(3) Count III—North Carolina constitutional violations (in the alternative) against Neighbors, Martín, and Gouge in their individual capacities and Gillespie and the Board;
(4) Count IV—Intentional Infliction of Emotional Distress against Martin, Gouge and Gillespie;4
(5) Count V—Tortious Interference with Contract against Gillespie; and
(6) Count YI—Malicious Prosecution against Martin in her individual capacity.
On April 22, 2016, all Appellees filed motions for summary judgment. After briefing and oral argument, the district court granted the motions and dismissed the amended complaint in its entirety. Appellant timely appealed.
II.
“We review a district court’s decision to grant summary judgment de novo, applying the same legal standards as the district court and viewing all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party.” Grutzmacher v. Howard Cty.,
III.
A.
First Amendment Retaliation
As explained .below, all Appellees are entitled to summary judgment on Appellant’s First Amendment retaliation claim. The Board is not subject to municipal liability, and Appellant is unable to present a prima facie case against the remaining Ap-pellees. For these reasons, we affirm the district court on Appellant’s First Amendment retaliation claim.
1.
The Board and Municipal Liability
“To hold a municipality (a local government entity) liable for a constitutional violation under § 1983, the plaintiff must show that the execution of a policy or custom of the municipality caused the violation.” Love-Lane v. Martin,
Appellant asserts that Martin had “full ... and final authority” to issue the Notice and suspend Appellant with and without pay and thus was the final policymaker for these discrete actions. Appellant’s Reply Br. 25 (emphasis in original); see also Appellant’s Br. 53-54. Moreover, Appellant admits that the Board “has no authority to act” regarding the Notice and suspensions. Appellant’s Reply Br. 24. Nonetheless, Appellant believes that the Board’s lack of oversight with regard to these actions consequently makes Martin the final policymaker, and as such, her actions imputable to the Board. This argument is meritless. 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 re-spondeat superior liability under § 1983.” Love-Lane,
2. .
Remaining Appellees
a.
Where a public employee sues a government employer for First Amendment retaliation pursuant to § 1983, the employee must prove:
(1) [He] was speaking as a citizen upon a matter of public concern [and not] as an employee about a matter of personal, interest; (2) [His] interest in speaking upon the matter of public concern outweighed the government’s interest in providing effective and efficient services to the public; and (3) [His] speech was a substantial factor in the employee’s [ad-verse employment] decision.
McVey v. Stacy,
This court recently, reiterated a two-step process for analyzing the requisite “but for” causation necessary to satisfy the causation prong of the McVey test.
The plaintiff bears the initial burden of proving that his exercise of his First Amendment rights was a substantial-or motivating factor in the employer’s [adverse employment] decision... .' And,if the plaintiff satisfies that burden, the defendant will avoid liability, if he can demonstrate, by a preponderance of the evidence, that he would have made the same employment decision absent the protected expression.
Bland v. Roberts, 730. F.3d 368, 375 (4th Cir. 2013) (internal - citations and quotations omitted); see also Ridpath v. Bd. of Gov’rs Marshall Univ.,
b.
This court has repeatedly stated that where causal facts are in dispute, giving
i.
Appellees Neighbors and Gillespie
Appellant has not offered even a mere scintilla of evidence that Neighbors or Gillespie caused his alleged adverse employment action. See Constantine v. Rectors & Visitors of George Mason Univ.,
ii.
Appellee Gouge
As to Gouge, although she conducted and participated in the investigation, Appellant lacks sufficient evidence to prove the requisite causal connection. Indeed, Appellant admitted as much during his deposition:'
Q: Okay. Do you have any actual evidence that Ms. Gouge’s actions were motivated by a desire to punish you for your political activities?
A: I do hot.
J.A. 504:25-505:3.
Student declarations claiming both that Gouge pressured them to make certain statements during intervíéws and that her notes from these interviews are inaccurate are Appellant’s only circumstantial evidence of causation. But these statements only speak to the propriety of the investigation. They do not create a causal link between Gouge’s investigation and Appellant’s political speech. Moreover, Gouge’s extended investigation was conducted at the behest of Martin, Gouge’s superior, who simply directed Gouge to investigate further due to the seriousness of the allegations. This was a quite reasonable directive under the circumstances. Therefore, no reasonable jury could conclude that Appellant’s speech was a substantial factor in Gouge’s investigation.
iii.
Appellee Martin
Appellant also cannot satisfy the causation prong of the prima facie case
With regard to Martin, Appellant primarily rests his argument on temporal proximity, but Appellant and Martin dispute when Martin knew of Appellant’s work in opposition to Gillespie. Martin claims in her declaration that she was unaware of Appellant’s political speech as of April 21, 2013, but Appellant claims Martin knew of the protected speech during the tour of MHS due to Gillespie’s comments. See J.A. 663:22-664:9 (informing Martin Appellant had “worked against [Gillespie] in previous elections”), 475:1-7 (telling Martin, “that’s the one I’ve been telling you about”). On summary judgment review, we accept the contention of the non-moving party, Appellant, that Martin knew of the protected speech eight to nine months prior to initiating the investigation. Regardless, this fact is “simply not a sufficient basis for a reasonable inference [of causation].” Bland,
Further, Appellant’s additional circumstantial evidence of causation does little, if anything, to help his case. In this vein, Appellant proffers the following: (1) Martin’s admission that she did not review Appellant’s personnel file and did not consult with other administrators about disciplinary action; (2) evidence suggesting allegations supporting Appellant’s suspension were not based on legitimate policies and, to the extent that these policies were applied, they were applied inconsistently; (3) student declarations stating that during the investigation, students were pressured to lie about Appellant’s actions and that notes of student interviews contain inaccurate information; and (4) the hearing officer’s report rejecting the grounds for Appellant’s dismissal.
Appellant relies on Price v. Thompson,
3.
Mt. Healthy Defense
In Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle,
The investigation was initiated by Gouge, approved by Garrett, and extended by Martin. The suspensions and Notice were both imposed by Martin. Appellees submitted declarations of two veteran superintendents who concurred in the reasonableness of the procedures. The Notice lays out ample grounds for its issuance, even if they were ultimately found not to warrant termination. And significantly, Appellant himself admits that he “would hope” that if a student “went to the administration [with her complaint], the administration would take some sort of action, at least an investigation,” and that if a teacher denies the allegation, the administration “should investigate” it “thoroughly.” J.A. 395:21-396:8.
Ultimately, Appellant asks this court to invade the realm of local administration of school systems reserved to the states by the Tenth Amendment. We decline to do so. It is difficult to fathom how a school and its administrators could be liable for investigating and taking disciplinary action for the legitimately inappropriate behavior to which Appellant has admitted in this
B.
Civil Conspiracy
■ “To establish a conspiracy claim under § 1983, a plaintiff ‘must present evidence that the [defendants] acted jointly in concert and that some overt act was done in furtherance of the conspiracy which resulted in [the] deprivation of a constitutional right.’ ” Massey v. Ojaniit,
Here, the district court determined that Appellant’s conspiracy claim failed because there had been no constitutional deprivation due to the failure of Appellant’s First Amendment claim. In the alternative, the district court decided that the conspiracy claim failed because Appellant “failed to come forward with any evidence, either circumstantial or direct, that would allow a jury to find the existence of a conspiracy.” J.A. 1250. Because Appellant’s “evidence amounts to nothing more than rank speculation and conjecture[,]” we agree with the district court. Hinkle,
This court has “recognizefd] that direct evidence of a conspiracy is not always available” but the court “cannot use this fact as an excuse to forgive Appellantt’s] failure to prove [his] case.” Hinkle,
1.
Appellee Neighbors
In his deposition, Appellant quite clearly admitted that he has no direct evidence that Neighbors conspired with any other Appellee:
Q. Do you have any evidence that Russell Neighbors in any way influenced Dr. Martin in the disciplinary proceedings against you?
A. No.
[[Image here]]
Q. Well, do you have any evidence ... that Mitch Gillespie and Russell Neighbors ever had a discussion .or communication about you before this lawsuit was filed?
A. I do not have actual evidence, no.
Q. Do you have any evidence that Russell Neighbors had a communication with anybody about you before you were suspended from your job?
A. I do not.
Q. Do you have any evidence that Russell Neighbors communicated with anybody concerning you prior to the decision by the superintendent to recommend termination?
A. I do not.
J.A. 330:19-22, 506:25-607:13. Appellant further admitted he did not have any evidence that “Russell Neighbors was telling ... Martin what to do with respect to [Appellant’s] employment at any time prior to the end of April 2013,” Id. at 530:17-21.
Despite these admissions, Appellant attempts to rest his case against Neighbors on three pieces of circumstantial evidence: (1) deposition testimony demonstrating that Neighbors was a mutual friend of Gillespie and Martin; (2) text messages showing Neighbors was helping Martin find other employment; and (3) Appellant’s account of statements made to him by other board members implicating Neighbors in a scheme to have him fired.
Friendship or acquaintanceship, standing alone, is insufficient to “reasonably lead to the inference that Appellees positively or tacitly came to a mutual understanding to try to accomplish a common and unlawful plan.” Hinkle,
2.
Appellee Gouge
Likewise, Appellant has offered no. direct evidence that Gouge conspired-with any other Appellees. During deposition, Appellant admitted the following:
Q. Well, can you point me to any evidence where it says that Ms. Gouge did these things in order to curry favor with Dr. Martin [sic]?
A. No.'
[[Image here]]
Q. Do you have any evidence that Ms. Gouge was trying, to curry, favor with Mr. -Neighbors as part of the disciplinary process?
A. No.
Q. Okay. Do you have any evidence that Ms. Gouge was trying to curry favor with Mr. Gillespie as part of the disci- ■ plinary process?
A. No. ■
[[Image here]]
Q: Okay. Sitting here today, do you have any actual evidence that Natalie Gouge entered into a conspiracy or an agreement with anybody to pursue a disciplinary proceeding in order to punish you for your political activities?
A: I—I have no actual evidence. I have circumstantial evidence in that she built a case of lies and made things up about me, and I believe that she did that to win favor with the new superintendent as well as others. .
J.A. 470:17-20, 491:2-9, 504:15-25.
Appellant rests his conspiracy case against Gouge on the same circumstantial evidence offered in support of his First Amendment retaliation claim—that she pressured students in interviews, and took inaccurate notes. If anything, this evidence evinces nothing more than misconduct on Gouge’s part. The link to any animus is pure speculation. No reasonable trier of fact could conclude, Rased on this evidence, that Gouge reached any mutual understanding
3.
Appellees Gillespie and Martin
As for Gillespie and Martin, Appellant again puts forth no direct evidence of a conspiracy. Appellant admitted:
Q. Do you have any actual evidence that Mitch Gillespie actually did anything to either cause or encourage Dr. Martin’s [sic] suspension or recommendation of termination?
A. No.
[[Image here]]
Q. Well, do you have any evidence that Dr. Martin [sic] was taking action as to you as part of this conspiracy with Mr. Gillespie and Mr. Neighbors? Do you have any actual evidence?
A. No. No.
Id. at 319:23-320:2, 328:20-24. Although Appellant has presented circumstantial evidence that Gillespie communicated his disdain for Appellant to Martin, there is no evidence beyond conjecture that the two ever had a mutual understanding to retaliate against Appellant for his protected speech. There is no specific circumstantial evidence connecting Gillespie’s animus to Martin’s action weighty enough to create a genuine issue of material fact as to these two defendants.
4.
Conspiracy Evidence
Appellant has not met his burden to come forward with “specific circumstantial evidence that each member of the alleged conspiracy shared the same conspiratorial objective.” Hinkle,
C.
North Carolina Constitution
In his Amended Complaint, Appellant asserts an alternative claim for retaliation based on the exercise of his rights under Sections 12 and 14 of Article I of the North Carolina constitution. Appellant brought this claim against Gouge, Martin, and Neighbors in their official capacities, and the Board and Gillespie. The district court disposed of these claims for the same reasons it disposed of Appellant’s First Amendment retaliation claim. We do the same.
In North Carolina, “[t]he standards for free speech retaliation claims under the state constitution are the same as those for free speech claims under the federal constitution.” Sheaffer v. Cty. of Chatham,
In North Carolina, a plaintiff can only proceed under the state constitution against the state if no other adequate state law remedy exists. See Corum v. Univ. of N.C. Through Bd. of Gov’rs,
D.
Tortious Interference
Appellant argues that the district court erred by granting summary judgment on Appellant’s tortious interference claim because, according to Appellant, Gillespie did not challenge this claim in his motion for summary judgment. But his motion clearly requested summary judgment on “all claims against him.” J.A. 271. While courts are not obligated to do the work of the litigants, even if Gillespie presented no argument or authority on the tortious interference claim, district courts may enter summary judgment sua sponte “so long as the losing party was on notice that she had to come forward with all of her evidence.” Celotex Corp. v. Catrett,
We agree with the district court that Appellant has failed to put forward adequate evidence to demonstrate that Gillespie intentionally induced any other Appel-lee to breach Appellant’s employment contract with the Board. Accordingly, the district court did not err.
E.
Malicious Prosecution
Finally, Appellant alleges a state law claim for malicious prosecution against Martin for the initiation of dismissal proceedings and prosecution of the charges contained in the Notice. The district court determined that “[b]eeause Plaintiff ... failed to establish a genuine issue of material fact as to malice and lack of probable cause, summary judgment [was] appropriate on Plaintiffs claim for malicious prosecution.” J.A. 1258. We agree that Appellant has not presented sufficient evidence to show a lack of probable cause.
Under North Carolina law, in order to establish a claim for malicious prosecution, “a plaintiff must show that the 'defendant (1) initiated or participated in the earlier proceeding; (2) did so maliciously; (3) without probable cause; and (4) the earlier proceeding ended in favor of the plaintiff.” Turner v. Thomas,
Viewing the evidence in the light most favorable to Appellant, Appellant cannot show that the grounds stated in the Notice, as facts and circumstances known to Martin at the time she initiated the proceedings, would not induce a reasonable person to commence a prosecution, Therefore, summary judgment was proper on these grounds.
: IV.
In light of the foregoing, the decision of the district court is
AFFIRMED.
Notes
. Citations to the “J.A,” refer to the. Joint Appendix filed by the parties in this appeal.
. NAMBLA is an acronym for the North American Man-Boy Love Association, an advocacy group for pedophilia and pederasty.
. Appellant was also interviewed about reported in-class discussions of gays and lesbians having sex in the school bathrooms and Appellant’s Facebook activity, including his Facebook friendship with students, the inappropriate Facebook exchange between him and a student, and his online Facebook activity during school hours. Further, Appellant was questioned about the relevance to his curriculum of a story he told in class about Lorena Bobbitt, Lastly, Appellant was confronted about his in-class use of YouTube.
. Count IV was voluntarily dismissed on September 18, 2015.
. Appellees assert that under Federal Rule of Civil Procedure 56, the court should not consider the hearing officer's report because it is inadmissible hearsay, is unreliable, and because none of the Appellees were party to the administrative hearing. See Appellees' Br. 36. But, the hearing report is not hearsay because it is not offered simply to prove the truth of the matter asserted. Instead, it is offered to show that the charges were rejected by the hearing officer.
Concurrence Opinion
concurring:
I am pleased to concur in Judge Thacker’s fine opinion. This case presents a school system personnel problem of the sort that occurs in hundreds, if not thousands, of school systems across the country every day. Here the plaintiff, a teacher, allegedly singled out two students’ sexual proclivities in front of their entire AP Government class, driving the young woman involved to tears and the woman’s mother to complain to school administrators.
Of course school administrators looked into it. It would have been a dereliction of duty not to do so. Their investigation revealed further inappropriate statements the teacher made to a student on Face-book, speculating about the student’s possible membership in the North American Man-Boy Love Association. Whether all this conduct merited á reprimand, suspension, or termination was well within the administrators’ discretion. For ' their efforts, they were hit with this litigation, which has been going on for over three years and in which the joint appendix alone has swelled to over 1200 pages.
I am unable to detect the slightest scintilla of educational benefit from all the churning in this lawsuit. In fact, it has drained the time of educators and the resources of a school district already burdened, as most districts are, with the steep compliance costs of federal regulation. Far be it from me to entertain the quaint notion that the efforts of educators should be spent on education, but that was assuredly not where this lawsuit directed them.
Education has long been a matter of paramount state and local concern. While federal authority has sometimes played a crucial role, school systems have come a long way since the unlawful and immoral practice of racial segregation left federal courts with no choice but to intervene; It is high time that the federal-state balance in this area be restored, and that litigation be viewed through the prism of the progress states have made and their rightful role in our constitutional structure. Federal judges otherwise risk becoming unnecessary chefs in an overcrowded kitchen without the educational understanding or the community involvement required to achieve a palatable outcome.