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Penley v. McDowell County Board of Education

United States Court of Appeals, Fourth Circuit

November 28, 2017

STANLEY JEFFREY PENLEY, Plaintiff - Appellant,
MCDOWELL COUNTY BOARD OF EDUCATION; GERRI MARTÍN, in her official and individual capacities; NATALIE GOUGE, in her official and individual capacities; ROBERT GILLESPIE, a/k/a Mitch Gillespie; H. RUSSELL NEIGHBORS, in his official and individual capacities, Defendants - Appellees.

          Argued: September 15, 2017

         Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Max O. Cogburn, Jr., District Judge. (1:14-cv-00170-MOC-DLH)


          David Philip Kula, LAW OFFICE OF DAVID KULA, Asheville, North Carolina, for Appellant.

          Robert J. King III, BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, L.L.P., Greensboro, North Carolina, for Appellees.

         ON BRIEF:

          Julia C. Ambrose, BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, L.L.P., Greensboro, North Carolina, for Appellees McDowell County Board of Education, Natalie Gouge, and H. Russell Neighbors.

          Ann-Patton Hornthal, ROBERTS & STEVENS, P.A., Asheville, North Carolina, for Appellee Gerri Martin. Ronald K. Payne, LONG, PARKER, WARREN, ANDERSON & PAYNE, P.A., Asheville, North Carolina, for Appellee Robert "Mitch" Gillespie.

          Before WILKINSON, DUNCAN, and THACKER, Circuit Judges.

         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.



         We view the relevant facts "in the light most favorable to the nonmoving party, " Appellant. Grutzmacher v. Howard Cty., 851 F.3d 332, 342 (4th Cir. 2017). From 2006 to April 2013, Appellant taught high school civics at MHS. During this time, Appellant was generally well respected among the students and had a near-spotless personnel record at MHS.

         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.[1]

         At the beginning of the 2012-2013 school year, Gillespie toured MHS with the newly hired superintendent, Gerri Martín ("Martín"). During the tour, Gillespie refused to enter Appellant's classroom, explaining to Martín that Appellant had "worked against [Gillespie] in previous elections." J.A. 663:3-664:9. When Gillespie and Martín approached Appellant's classroom doorway, Gillespie allegedly pulled Martín 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.


         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 witnessed the girlfriend crying in the library during his planning period. He went back and forth to the library to "find out what was going on." Id. at 393:15. Then, when the girlfriend exited the library, Appellant sought her out and confronted her in a stairwell. Appellant's stated goal for stopping the girlfriend in the stairwell was to prevent her from going to the principal. See id. at 387:18-21 ("Q. Well, would your goal, when you spoke to [girlfriend] at 3-something in the afternoon, to, the end result be, that she would not go to the principal? A. Yes."). The girlfriend, through her mother, ultimately reported Appellant to school administrators.

         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 NAMBLA! [2]
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. Martín declined to issue a letter of reprimand and instead opted to suspend Appellant with pay pending further action. Martín 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 Martín and two other administrators related to the comment, the Facebook exchange, and other inappropriate behavior uncovered by the investigation.[3] Appellant admitted during this interview: "I wish I could take back everything" and "[w]hen I realized I had hurt [the girlfriend], I felt awful. I feel terrible." J.A. 616, 617.


         On August 21, 2013, Martín 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, Martín left her position as superintendent, and Garrett became the interim superintendent.

         Appellant requested that the grounds for Martín'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 Martín were conniving to have Appellant terminated and that the charges against him "were garbage concocted by . . . Martin [sic]." J.A. 508:10-11.


         Appellant filed his initial complaint in the Western District of North Carolina on July 7, 2014, against the Board, Gillespie, Martín, 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 Martín, 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 Martín, Gouge and Gillespie; [4]
(5) Count V - Tortious Interference with Contract against Gillespie; and
(6) Count VI - Malicious Prosecution against Martín 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.


         "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., 851 F.3d 332, 342 (4th Cir. 2017) (quoting Smith v. Gilchrist, 749 F.3d 302, 307 (4th Cir. 2014)). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).



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