Argued: September 15, 2017
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)
Philip Kula, LAW OFFICE OF DAVID KULA, Asheville, North
Carolina, for Appellant.
J. King III, BROOKS, PIERCE, MCLENDON, HUMPHREY &
LEONARD, L.L.P., Greensboro, North Carolina, for Appellees.
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
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"
WILKINSON, DUNCAN, and THACKER, Circuit Judges.
by published opinion. Judge Thacker wrote the opinion, in
which Judge Duncan joined. Judge Wilkinson wrote a concurring
THACKER, CIRCUIT JUDGE:
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.
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.
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
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.
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.
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
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
Student: Mr. Penly [sic], why are you checking me out with no
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.
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.
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. 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.
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
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.
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]."
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
(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; 
(5) Count V - Tortious Interference with Contract against
(6) Count VI - Malicious Prosecution against Martín in
her individual capacity.
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.
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."