[PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                                FILED
                            FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                              ________________________ ELEVENTH CIRCUIT
                                                                         AUGUST 1, 2007
                                     No. 06-13582                       THOMAS K. KAHN
                               ________________________                     CLERK


                       D. C. Docket No. 05-00563-CV-T-26-TBM

MICHAEL L. D’ANGELO,

                                                                Plaintiff-Appellant,

                                            versus

SCHOOL BOARD OF POLK COUNTY, FLORIDA,

                                                                Defendant-Appellee.


                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                           _________________________

                                      (August 1, 2007)

Before PRYOR, KRAVITCH and ALARCÓN,* Circuit Judges.

PRYOR, Circuit Judge:

       The issue in this appeal is whether the district court erred when it entered


       *
        Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
judgment as a matter of law against a high school principal who argues that the

school board violated the First Amendment when the board terminated him in

retaliation for his efforts to convert his school to a charter school. While he served

as principal of Kathleen High School in Polk County, Florida, Michael L.

D’Angelo met with teachers, consulted with principals of other local high schools,

and held two faculty votes regarding the conversion of his school to charter status.

D’Angelo complains that the School Board of Polk County discharged him in

retaliation for the exercise of his rights to freedom of speech, to petition the

government for redress of grievances, and to freedom of association. The district

court reasoned that D’Angelo’s efforts to convert Kathleen High to charter status

were “part and parcel of his official duties” and were not undertaken as a citizen.

The district court concluded that, in the light of Garcetti v. Ceballos, 547 U.S. __,

(2006), D’Angelo’s work as principal was not protected by the

First Amendment and granted the school board judgment as a matter of law. We

affirm.

                                 I. BACKGROUND

      On June 11, 2002, the school board hired D’Angelo to be the principal of

Kathleen High. The school did not compare favorably with other high schools in

Polk County and had received a “D” grade on the Florida Comprehensive



                                            2
Assessment Test. D’Angelo made improvements and, within one year, raised the

assessment score to a “C” grade.

      After he learned that the school would not receive additional staff or

funding, D’Angelo explored converting the school to charter status. Florida law

provides that “[c]harter schools shall be part of the state’s program of public

education.” Fla. Stat. § 1002.33(1). “An application for a conversion charter

school shall be made by the district school board, the principal, teachers, parents,

and/or the school advisory council . . . .” 

Charter conversion

requires the support of at least 50 percent of the teachers employed at the school.

the spring of 2003, D’Angelo took several steps toward charter

conversion. He and other individuals from his school attended a seminar on

charter schools. He held staff meetings at school and divided the faculty into

committees to study and give reports on charter schools. D’Angelo also met on

several occasions with the principals of other local high schools to discuss charter

conversion.

      In an email to an assistant principal at Kathleen High, D’Angelo explained

his duty to pursue charter conversion. The record does not contain a copy of the

email, but the trial transcript reflects that D’Angelo wrote that he, “in good



                                           3
conscience, could not continue the practice of providing an inferior educational

opportunity to [the] ESE students [at Kathleen High].” He explained that, “with[]

the Charter opportunities granted by the State of Florida, [he] would be remiss in

[his] duties as the leader of Kathleen High School if [he] did not explore any and

all possibilities to improve the quality of education at [the school].”

      D’Angelo testified at trial that charter conversion was not “one of [his]

assigned duties,” but he admitted that “[i]t was incumbent upon [him] to

investigate Charter and to move towards Charter for the betterment of the students

at Kathleen High School.” He explained that his “number one duty, and the duty

of any principal, [wa]s to do whatever [he could] for the kids.” According to

D’Angelo, “if [principals] don’t do everything [they] possibly can to create

avenues for kids to succeed, then . . . [they] are [not] doing [their] duty.” One

aspect of D’Angelo’s “job as a principal” was to “provide the best educational

opportunities [he could],” and he “felt that [his] responsibility as a leader [of

Kathleen High] was to make sure that [he] exhausted every avenue that [he] could,

and Charter happened to be one.” D’Angelo “pursu[ed] Charter School for

Kathleen High School . . . to meet the mission and vision of [the] Polk County

[School District].”

      An initial faculty vote on charter conversion occurred on October 15, 2003,



                                           4
but the votes were not tallied because of an irregularity with the number of ballots.

On April 15, 2004, the rescheduled faculty vote failed with 33 votes in favor of

conversion and 50 votes against. D’Angelo then planned to convert only part of

Kathleen High to charter status and invited teachers interested in this new plan to

attend a meeting at 2:00 PM on April 19.

      The meeting did not occur. The superintendent called D’Angelo on the day

of the meeting, and D’Angelo cancelled the meeting. According to D’Angelo, the

superintendent “was not happy that [D’Angelo] was going to have a meeting” and

“was kind of upset that [D’Angelo and others] were still continuing on the Charter

process.” Some members of the school board also had been displeased with

D’Angelo’s efforts to convert Kathleen High to charter status.

      On May 3, D’Angelo was called to the district office and terminated. Four

days earlier, D’Angelo had received a rating of “[h]igh quality performance” from

the deputy superintendent. Contemporaneously, Kathleen High had received a

favorable evaluation from the Southern Association of Colleges and Schools.

      D’Angelo filed a complaint with the Florida Department of Education.

Florida law provides that “[n]o district school board, or district school board

employee who has control over personnel actions, shall take unlawful reprisal

against another district school board employee because that employee is either



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directly or indirectly involved with an application to establish a charter school,”

Fla. Stat. § 1002.33(4), and an employee may file a complaint with the Department

of Education within 60 days, 

After investigation, the

Department of Education concluded that there was no “direct correlation to

D’Angelo’s contract not being renewed due to the fact that he attempted to convert

Kathleen High School to a charter school.”

      D’Angelo filed a complaint in federal district court that alleged the school

board had terminated him in retaliation for his exercise of rights protected by the

First Amendment. The action proceeded to a jury trial, and after the close of

D’Angelo’s case-in-chief, the school board moved, under Federal Rule of Civil

Procedure 50(a), for judgment as a matter of law. In his argument against the

motion, D’Angelo clarified that he was “raising First Amendment claims on

petitioning, association and speech related to charter only.”

      The district court granted the motion of the school board. The court

concluded that, under Garcetti, D’Angelo’s speech was not protected by the First

Amendment. The court then determined that there was “absolutely no evidence in

th[e] record to support” D’Angelo’s complaint that the school board violated his

rights to free association and to petition the government for redress of grievances.




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                           II. STANDARD OF REVIEW

      “A Rule 50 motion for judgment as a matter of law is reviewed de

novo . . . .” Abel v. Dubberly, 

, 1337 (11th Cir. 2000). We view the

evidence in the light most favorable to D’Angelo, but he “must put forth more than

a mere scintilla of evidence suggesting that reasonable minds could reach differing

verdicts.” 

      D’Angelo presents three arguments on appeal. He contends that the district

court erred when it entered judgment as a matter of law against his three claims

that the school board discharged him in retaliation for his exercise of rights to

freedom of speech, to petition the government for redress of grievances, and to

freedom of association. We affirm the district court on each ground.

       A. The District Court Correctly Entered Judgment as a Matter of Law
      Against D’Angelo’s Claim That the School Board Violated His Right to
                                Freedom of Speech.

      A few weeks before D’Angelo’s jury trial, the Supreme Court held in

Garcetti that a public employee who spoke “pursuant to [his] official duties” had

“not sp[oken] as [a] citizen[]” and was not protected by the First 

. The district court concluded that, under Garcetti, D’Angelo had not

engaged in protected speech. The court reasoned that D’Angelo’s efforts to



                                           7
convert Kathleen High to charter status were “part and parcel of his official duties

and . . . done in his capacity as the principal of [the school].” We agree with the

district court.

       Our analysis of this issue is divided into two parts. First, we discuss the law

in this Circuit regarding the termination of a public employee in retaliation for that

employee’s exercise of his right to freedom of speech, and we explain the effect of

Garcetti on those precedents. Second, we consider whether D’Angelo engaged in

protected speech.

   1. A Public Employee Must Speak Both on a Matter of Public Concern and as
           a Citizen to Receive Protection Under the First Amendment.

       Before Garcetti, “it [was] well-established that an employer [could] not

discharge a public employee in retaliation for the employee’s exercise of his right

to freedom of speech,” but “th[e employee’s] right [to free speech was] not

absolute.” Brochu v. City of Riviera Beach, 

, 1157 (11th Cir. 2002).

As the Supreme Court first explained in Pickering v. Board of Education, “the

interests of the [employee], as a citizen, in commenting upon matters of public

concern” had to be balanced against “the interests of the State, as an employer, in

promoting the efficiency of the public services it performs through its employees.”

, 568, 

, 1734-35 (1968). “[W]hen a public employee

speaks not as a citizen upon matters of public concern, but instead as an employee

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upon matters only of personal interest, . . . a federal court is not the appropriate

forum in which to review the wisdom of a personnel decision taken by a public

agency . . . .” Connick v. Meyers, 

, 147, 

, 1690

(1983).

      We adopted the “four-stage analysis [that] evolved [after Pickering]” for

actions that involved the termination of a public employee in alleged retaliation for

that employee’s exercise of First Amendment rights. 

.

The first stages were “questions of law designed to determine whether the First

Amendment protect[ed] the employee’s speech.” Anderson v. Burke County, 

, 1219 (11th Cir. 2001). At the first stage, “the threshold legal question

[was] whether the employee’s speech [could] be fairly characterized as constituting

speech on a matter of public concern.” 

(internal

quotation marks omitted). We sometimes also asked “whether the speech at issue

was made primarily in the employee’s role as citizen, or primarily in the role of

employee.” Morris v. Crow, 

, 1382 (11th Cir. 1998) (internal

quotation marks omitted).

      In Garcetti, the Supreme Court emphasized that a public employee must

speak both on a matter of public concern and as a citizen to be protected under the

First Amendment. The Court noted that the court of appeals had considered



                                            9
whether Richard Ceballos, the public employee who had been terminated, spoke on

a matter of public concern but had failed to consider whether the speech was also

“made in Ceballos’ capacity as a citizen.” 

. The Court

then cited the precedents of Pickering and Connick for the principle that “the First

Amendment protects a public employee’s right . . . to speak as a citizen addressing

matters of public concern,” 

(emphasis added), and

reversed the court of appeals because Ceballos spoke “pursuant to [his] official

duties . . . [and] not . . . as [a] citizen[],” 

       Ceballos had been employed as a calendar deputy district attorney in Los

Angeles County. 

According to Ceballos, it was not unusual for

persons employed in that capacity to be asked by defense attorneys to investigate

aspects of pending criminal actions. 

2000, a defense attorney

contacted Ceballos and asked him to investigate an affidavit that supported a

search warrant in a pending criminal action. 

a memorandum

that questioned the affidavit and recommended dismissal of the case. 

Ceballos complained that he was then reassigned, transferred, and denied a

promotion in violation of his First Amendment right to free speech. 

Court concluded that Ceballos “did not speak as a citizen by

writing a memo that addressed the proper disposition of a pending criminal case,”



                                               10
because Ceballos did not dispute that he prepared the memo “pursuant to his duties

as a calendar deputy.” 

The Court held that “when public employees

make statements pursuant to their official duties, the employees are not speaking as

citizens for First Amendment purposes, and the Constitution does not insulate their

communications from employer discipline.” 

never considered

whether Ceballos’s speech was on a matter of public concern.

      After Garcetti, we and several of our sister circuits refined our analysis of

the first step of the Pickering test. In Battle v. Board of Regents, we initially

described the threshold legal question as whether “‘the employee’s speech is on a

matter of public concern.’” 

, 760 (11th Cir. 2006) (quoting 

). We then quoted Garcetti and restated that threshold question:

“we must first ask ‘whether the employee spoke as a citizen on a matter of public

concern.’” 

(quoting 

(emphasis added)). The

Tenth Circuit concluded that Garcetti “revisit[ed]” and “significantly modified” the

“first prong,” Casey v. W. Las Vegas Indep. Sch. Dist., 

, 1328 (10th

Cir. 2007), and the Seventh Circuit explained that “Garcetti . . . holds that before

asking whether the subject-matter of particular speech is a topic of public concern,

the court must decide whether the plaintiff was speaking ‘as a citizen’ or as part of

her public job,” Mills v. City of Evansville, 

, 647 (7th Cir. 2006). See



                                           11
also Reuland v. Hynes, 

, 415 & n.5 (2d Cir. 2006).

        The district court correctly concluded that “Garcetti factors in to th[e] first

stage.” It then determined that, in the light of Garcetti, D’Angelo failed the first

stage and had not engaged in protected speech. We agree and address that issue

next.

                        2. D’Angelo Did Not Speak as a Citizen.

        D’Angelo’s speech on charter conversion is not protected by the First

Amendment because he did not speak as a citizen, as required by Garcetti. We

come to this conclusion for at least two reasons, and we discuss each reason in

turn.

        First, it is clear from Florida law that D’Angelo undertook his efforts to

convert Kathleen High to charter status in his capacity as the principal and not as a

citizen. The Flordia statute that governs the establishment of charter schools

provides, “An application for a conversion charter school shall be made by the

district school board, the principal, teachers, parents, and/or the school advisory

council.” Fla. Stat. § 1002.33(3)(b). Because there is no evidence that D’Angelo

was a parent or a teacher, his efforts to convert Kathleen High to charter status

necessarily were in his capacity as the principal of the school.

        Second, the Supreme Court held in Garcetti that a public employee who



                                            12
“make[s] statements pursuant to [his] official duties . . . [is] not speaking as [a]

, and D’Angelo admitted that his efforts to convert his

school to charter status were to fulfill his professional duties. D’Angelo was not

expressly assigned the duty to pursue charter conversion, but the Supreme Court

explained in Garcetti that “the listing of a given task . . . is n[ot] necessary . . . to

demonstrate that conducting the task is within the scope of the employee’s

professional duties for First Amendment purposes.” 

It is enough that

D’Angelo admitted that he pursued charter conversion to “explore any and all

possibilities to improve the quality of education at [his school],” which he

described as part of his “job as a principal” and his “number one duty . . . and the

duty of any principal.” See 

(relying on admission of

plaintiff that “she had a clear employment duty”). Although D’Angelo and the

amici curiae now argue that these admissions were about D’Angelo’s moral

obligations as a human being and not his responsibilities as a principal, D’Angelo’s

unambiguous statements do not support this characterization.

       The amici purport to offer evidence that supports their position. They focus

on the email D’Angelo sent to his assistant principal, in which D’Angelo explained

that he “would be remiss in [his] duties as the leader of Kathleen High” if he did

not pursue charter conversion. The amici allege that D’Angelo then wrote, “My



                                             13
obligation is to do the right thing,” which in their view proves that D’Angelo was

not discussing his professional responsibilities.

      The argument of the amici fails for two reasons. First, the alleged statement

by D’Angelo is not in the record on appeal and, for our purposes, does not exist.

Although the email was admitted and some of its contents were discussed at trial,

that statement is not in the trial transcript, and D’Angelo failed to include a copy of

the email in the record before this Court. See Fed. R. App. P. 10(b)(2). Second,

even if the statement were in the record, it would not support the contention of the

amici. Given the context, any reasonable reader would understand that D’Angelo

believed that he was obliged to carry out his duties as the leader of Kathleen High

and pursue charter conversion.

      Because there is no genuine dispute that D’Angelo’s efforts to convert his

school to charter status were to fulfill his official responsibilities, we do not need a

method to define D’Angelo’s duties. Like the plaintiff in Garcetti, D’Angelo

admitted that his actions were “pursuant to his [official] 

. We find ourselves in the same circumstance as the Supreme Court and

“have no occasion to articulate a comprehensive framework for defining the scope

of an employee’s duties.” 

the invitation of both parties to engage

that question and leave it for an appeal where “there is room for serious debate.”



                                           14


final matter, we do not adopt the emphasis the district court placed on

D’Angelo’s use of school resources in his efforts to convert Kathleen High to

charter status. Although D’Angelo often used school resources and spoke on

school premises about charter conversion, we do not rely on that fact to conclude

that D’Angelo did not speak as a citizen. As the Supreme Court explained in

Garcetti, “[m]any citizens do much of their talking inside their respective

workplaces.” 

We also do not rely on the fact that D’Angelo’s speech

might be construed as “concern[ing] the subject matter of [his] employment,”

because that fact also “is nondispositive.” 

District Court Correctly Entered Judgment as a Matter of Law
      Against D’Angelo’s Claim That the School Board Violated His Right to
                Petition the Government for Redress of Grievances.

      The district court found “absolutely no evidence in th[e] record to support”

D’Angelo’s claim that the school board violated his right to petition the

government for redress of grievances and granted the school board judgment as a

matter of law on that claim. D’Angelo asserts that his pursuit of a charter school

application for Kathleen High was “by definition” a petition to the government for

redress of grievances. We agree that the school board is entitled to judgment as a

matter of law on this claim.



                                          15
      Before Garcetti, we applied the same threshold legal question to a public

employee who argued that he had been terminated in retaliation for exercise of his

right to petition the government as we did to an employee who asserted that he had

been terminated for his speech. Instead of asking whether the speech was on a

matter of public concern, as discussed earlier, we asked whether the “public

employee’s petition . . . address[ed] a matter of public concern.” Grigley v. City of

Atlanta, 

, 755-56 (11th Cir. 1998). We explained that the rationale of

the public concern requirement “applie[d] to expression that takes the form of a

petition as well as expression that takes the form of speech,” because “[t]he

Petition Clause is not entitled to any greater protection than the Free Speech

Clause.” 

(citing McDonald v. Smith, 

, 485, 

, 2791 (1985)).

      For the same reason, we now apply the threshold legal question that has

developed in the free speech context after Garcetti. We ask whether the public

employee made his petition both on a matter of public concern and as a citizen. If

the petition fails this threshold question, it is not protected under the First

Amendment.

      Assuming that D’Angelo’s efforts to convert his school to charter status can

be considered a petition to the government, D’Angelo’s petition fails the threshold



                                            16
question. As explained earlier, D’Angelo’s efforts to convert Kathleen High to

charter status were not undertaken as a citizen. D’Angelo acted in his capacity as

the principal of Kathleen High and to fulfill his professional responsibilities. The

school board is entitled to judgment as a matter of law.

      C. The District Court Correctly Entered Judgment as a Matter of Law
      Against D’Angelo’s Claim That the School Board Violated His Right to
                             Freedom of Association.

      As with D’Angelo’s petition claim, the district court found “absolutely no

evidence in th[e] record to support” D’Angelo’s claim that the school board

violated his right to free association and granted the school board judgment as a

matter of law. D’Angelo argues that he presented evidence of many meetings

regarding the conversion of Kathleen High to charter status. Again, we agree that

the school board is entitled to judgment as a matter of law.

      We begin with a significant difference between this claim and the previous

two claims. Despite the instruction of the Supreme Court that the different

guarantees of the First Amendment are “cut from the same cloth,” 

, 105 S. Ct. at 2789, we have not applied the same threshold legal

question to public employees who argue that they were terminated in retaliation for

exercise of their right to free association as we have to those who argue that they

were terminated for their speech or petitions. We have long held that, unlike



                                          17
speech or petitions by public employees, associational activity by public

employees need not be on matters of public concern to be protected under the First

Amendment. See, e.g., Hatcher v. Bd. of Pub. Educ. & Orphanage, 

,

1558 (11th Cir. 1987); Cook v. Gwinnett County Sch. Dist., 

, 1320

(11th Cir. 2005) (citing Hatcher). But see, e.g., Cobb v. Pozzi, 

, 102

(2d Cir. 2004) (associational conduct by public employee must touch on matter of

public concern); Klug v. Chi. Sch. Reform Bd. of Trs., 

, 857 (7th Cir.

1999) (same); Boals v. Gray, 

, 692 (6th Cir. 1985) (same). We

explained in Hatcher that “application of a requirement that associational activity

relate to a matter of public concern in order to be constitutionally protected would

overturn Supreme Court and Eleventh Circuit jurisprudence,” such as NAACP v.

Alabama, 

, 

(1958). 

.

      The question is whether the holding in Garcetti nevertheless applies to

public employees who argue that they were terminated for exercise of their right to

free association and requires those public employees to have engaged in

associational activity as citizens to be protected under the First Amendment. We

conclude that it does. “When a citizen enters government service, the citizen by

necessity must accept certain limitations on his or her freedom.” Garcetti, 126 S.

Ct. at 1958. Because “[n]one of ‘the great liberties insured by the First



                                          18
(Amendment) can be given higher place than the others,’” the requirement of

Garcetti applies to the right of a public employee to associate as it applies to the

rights of a public employee to speak and to petition the government. Robinson v.

Price, 

, 1099 (5th Cir. 1980) (quoting Prince v. Massachusetts, 

, 164, 

, 441 (1944)); see also 

(“[T]here

. . . exist[s] no hierarchy among First Amendment rights.”).

      Our decision in Hatcher does not counsel otherwise. In Hatcher, we were

compelled by precedents of the Supreme Court and this Court to disregard the

ordinary rule that rights under the First Amendment are co-equal. The Supreme

Court had explained in NAACP v. Alabama that the subject matter of

constitutionally protected associational activity was 

, 78 S. Ct. at 1171, and we had previously protected under the First

Amendment associational activity by public employees on matters of private

interest, see Wilson v. Taylor, 

(11th Cir. 1984), abrogation on other

grounds recognized by Scala v. City of Winter Park, 

, 1402 & n.4

(11th Cir. 1997); Hastings v. Bonner, 

(5th Cir. 1978). We had no

choice but to conclude in Hatcher that the public concern requirement for speech

by public employees did not also apply to their associational activity.

      Unlike in Hatcher, we are not compelled in this circumstance to set aside the



                                           19
ordinary rule. We are not aware of any precedents of the Supreme Court or this

Court, including those discussed in Hatcher, that preclude extension of the

requirement of Garcetti to the First Amendment right of a public employee to

associate. The Supreme Court precedent that we cited in Hatcher pertains only to

the subject matter of constitutionally protected associational activity by public

employees and has no bearing on whether we can require public employees to

engage in associational activity as citizens to be protected by the First Amendment.

The precedents of this Court that we cited in Hatcher are also irrelevant, because

they are consistent with an extension of the requirement of Garcetti; in those

decisions, we protected under the First Amendment associational activity by public

employees as citizens. See 

(protecting police officer’s

choice to date a felon’s daughter); 

(protecting

teacher’s choice to bring her husband and representative of state teacher

organization to a meeting with the superintendent about her personal contract).

      “To hold otherwise would be to demand permanent judicial intervention in

the conduct of governmental operations to a degree inconsistent with sound

principles of federalism and the separation of powers.” 

. As the Supreme Court discussed in Garcetti, “[g]overnment employers

. . . need a significant degree of control over their employees’ words and actions,”



                                          20
including the associational activity of public employees as employees. 

Restricting associational activity that is not undertaken as a citizen, but “that owes

its existence to a public employee’s professional responsibilities[,] . . . . simply

reflects the exercise of employer control over what the employer itself has

commissioned or created.” 

      In the light of Garcetti, the school board is entitled to judgment as a matter

of law on D’Angelo’s associational claim. D’Angelo relies for his claim on

meetings about charter conversion that he held or attended, and we have already

explained that his efforts to convert Kathleen High to charter status were not

undertaken as a citizen. His associational activity is not protected by the First

Amendment.

                                 IV. CONCLUSION

      The judgment of the district court is

      AFFIRMED.




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