Principal’s Threatening Critics with Defamation Lawsuit Can Be “Conduct Unbecoming”

A short excerpt from the long decision by Merit Systems Protection Board Administrative Judge Scott Borrowman, in Bosworth v. Dep’t of Defense. The decision upheld plaintiff’s removal from her job; though there were many further matters involved besides the threat of a lawsuit, I’m focusing on the discussion of the lawsuit threat here:

Starting in August 2023, appellant began serving as the Principal at Matthew C. Perry Primary School (MCPPS), in Iwakuni, Japan…. MCPPS is [the pre-K through second grade elementary school in] the educational complex at Marine Corps Air Station Iwakuni. HAF, Ferguson….

[E]ach installation has an Interactive Customer Evaluation (ICE) system that allows comments to be routed to the appropriate office, such as comments related to DoDEA [Department of Defense Education Activity], to medical services, or to other base services….

Between August 2024 and June 2025, there were 83 ICE comments about MCPPS. Two comments submitted in May 2025 accused the appellant of treating some students differently because of their race, and one accused the appellant’s children of bragging that they had their grades adjusted because “teachers are afraid of their mom.”

On May 28, 2025, at 4:12 a.m., the appellant sent an email to [Community Superintendent Sonya] Gates [appellant’s supervisor] and [District Superintendent] Jacqueline Ferguson [appellant’s grandsupervisor] with the following text:

These ICE comments have truly affected my mental health. I already exposed that I have a VA disability rating of 80% due to PTSD [posttraumatic stress disorder]/Anxiety. This is cyber bullying and harassment, and nothing has been done to stop it. Instead, I am under investigation for ridiculously false allegations from a substitute, who is still employed at my school! I have endured these harassing comments for months, yet nothing has been done to alleviate my duress. Please assist in explaining my concerns.

That same day, at 6:59 a.m., Ferguson responded:

Here’s my immediate suggestion as we conclude our inquiry and determine next steps.

1. You do not have to read ANY ICE comments. If there is something that needs your attention, then Sonya and I will contact you.

2. Set up a rule in your email for ALL ICE comments to immediately go to either your deleted file or a designated file.

The appellant indicated that she did not set up a rule to stop reading the emails because she did not know how to do so, and because she believed she needed to know about ICE comments being made about the school….

On May 29, 2025, A.T., a parent, emailed Gates, Ferguson, Rusnok, and the DoDEA Director with a petition signed by 24 parents or guardians requesting that the appellant be removed as principal. They alleged that the school had failed to adequately address and prevent bullying, neglected student health and safety concerns, that the appellant was unresponsive to parent concerns, and that the school environment was unsupportive, unsafe, and unaccountable. It is not clear when she did so, but A.T. posted the petition to the Facebook group “Mom’s [sic] of MCAS Iwakuni” before she submitted this petition.

On May 30, 2025, an anonymous ICE complaint was submitted that the appellant “sent a threatening email to a parent who expressed concerns about her child’s safety on a public forum,” and “continues to try and intimidate people who speak out against her poor leadership and questionable behavior,” and complained that the appellant “attempted to silence this parent by threatening legal action.” …

On May 28, 2025, the appellant sent an email from her personal Gmail account to the personal email account of A.T. (the author of the parent petition to remove the appellant). In the email, the appellant wrote that her email “serves as a formal demand that you immediately cease and desist from publishing and disseminating false, defamatory, and libelous statements about me on social media platforms.”

She “directed” A.T. to immediately remove “all libelous posts, comments, and content related to me from any and all social media platforms or other public forums where they have been posted,” cease and desist making “any further defamatory statements about me,” and “provide written confirmation” by the next day that she would comply. If A.T. did not, the appellant warned her that she would be “forced to pursue all available legal remedies, including but not limited to seeking monetary damages, a restraining order, and reimbursement for attorney’s fees and court costs.” It concluded: “Govern yourself accordingly.” …

There is no factual dispute that the appellant sent the email to a parent; the issue is whether, in context, that communication could properly be treated as conduct unbecoming.

In evaluating First Amendment claims, the Board must determine whether the employee engaged in constitutionally protected speech and balance that right against the need of agencies to exercise latitude in managing their offices, which is often referred to as the Pickering test. Pickering v. Board of Education (1968)

“Whether the employee’s speech addresses a matter of public concern, and is therefore protected, is circumscribed, and must be determined by, the content, form, and context of a given statement, as revealed by the whole record.” … Considering the entire record, I conclude that both the parent’s speech and the appellant’s speech addressed a matter of public concern, because it related to the administration of the school and how parents perceived it. The Facebook post was deleted, so I cannot consider whether it raised solely opinion, which would be protected by the First Amendment, or factually false statements that may qualify as defamation under the applicable standards.

That distinction matters because the government has far less latitude to suppress or chill citizen criticism of public officials than it does to manage internal workplace speech.

While the appellant argued that she made the cease-and-desist demand in her personal capacity, that argument is not persuasive. Based on the best information about the post, the Facebook post related to the school and how the appellant managed it. Therefore, the post was connected to the appellant’s official duties. As such, the appellant’s email about her official duties was also made in her official capacity. Holding that a public official, speaking about their official duties, could have their actions considered to have been taken in a personal capacity by sending a communication from their personal email address as opposed to their government email address would be inconsistent with the Supreme Court’s approach to these First Amendment issues.

To be clear, I do not hold that every communication about an employee’s official duties from their personal accounts would necessarily qualify as official-capacity speech. However, here, the parent’s criticism concerned the appellant’s performance as principal, the appellant demanded removal of comments about her performance as principal, her Facebook profile identified her as MCPPS principal, and the likely effect of her communication was to discourage parents using ICE comments or public discussion of school administration. In this context, I conclude that the appellant was speaking in her official capacity, as opposed to her personal capacity. As such, the agency was allowed to consider it as conduct unbecoming.

But even if the Board were to conclude that the appellant spoke in her personal capacity, under the Pickering test as applied in Board case law, the agency’s interest in promoting the efficiency of the service, including maintaining good relations with parents, outweighed the appellant’s interest in speaking as a citizen.

Moreover, … the email was reasonably likely to have a chilling effect on the parent’s First Amendment protected speech….

And the administrative judge also rejected plaintiff’s hostile work environment claim:

The appellant argued that she raised complaints of hostile work environment, which is protected activity, but the agency failed to take appropriate action. HAF, Bosworth. In her response to the proposal to demote, the appellant argued that the agency retaliated against her for this protected activity. In her prehearing submissions, the appellant argued that DoDEA had an obligation to protect the appellant from harassment by parents that created a hostile work environment.

First, it is not clear that the agency’s obligation to investigate harassment extends to third parties. [I don’t think this is quite accurate as a statement of hostile environment law generally, though in this case it likely wouldn’t matter. -EV] Unlike a case of coworker harassment where the agency has managerial authority over everyone involved, DoDEA does not have any supervisory authority over parents.

Second, the appellant’s complaints about harassment by parents occurred in the context of parent complaints about the appellant and a petition to have her removed as principal. The agency investigated those complaints, with Ferguson reviewing all the ICE comments and contacting the parents who filed the petition.

Third, Ferguson offered to screen the ICE comments for the appellant and forward only those that the appellant needed to handle, but the appellant did not avail herself of that offer. Fourth, as the appellant acknowledged, the parents have a right to file ICE complaints.

Considering the foregoing, it is not clear what actions the agency could have taken consistent with the First Amendment that would have addressed the appellant’s concerns. She suggested that the district could have conducted a public meeting and expressed support for her, but doing so without investigating the legitimacy of parents’ complaints could have had a chilling effect on the parents’ rights to complain about matters of public concern. Thus, the appellant did not prove that her complaints about being harassed stated an actionable Title VII claim such that the agency was on notice of any protected activity.

Regardless of whether the agency was obligated to address the ICE comments or reports of harassment, the appellant’s complaints about ICE comments and parent criticism did not identify harassment because of race, color, religion, sex, national origin, disability, or another protected EEO basis. They therefore did not constitute protected opposition under Title VII, even if they described conduct she found unfair or harmful….

Mundy Nkemjika Malaka, Latisha Clinton, and Jennifer Kehe represent the Department.