08-2203-cv
Huth v. Haslun
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2008
(Argued: June 17, 2009 Decided: March 11, 2010)
Docket No. 08-2203-cv
FLORENCE E. HUTH ,
Plaintiff-Appellee,
v.
DEBORAH HASLUN , CARLOS MILLAN , JOSEPH BLOOMER ,
RAMESH MEHTA , and JONATHAN BARR,
Defendants-Appellants.
Before: CABRANES and HALL, Circuit Judges, STEIN , District Judge.*
Defendants-appellants appeal from an April 3, 2008 order of the United States District Court
for the Southern District of New York (Charles L. Brieant, Jr., Judge) denying their motion for summary
judgment raising the defense of qualified immunity. Plaintiff claims that defendants, who are
employees of the New York State Thruway Authority, violated her rights under the First Amendment
to the Constitution by initiating disciplinary proceedings against her resulting in her demotion. She also
asserts that, in doing so, defendants violated the First Amendment rights of her coworker. We hold
that the conduct that resulted in plaintiff’s demotion does not qualify as speech protected from
retaliation by the First Amendment under the framework set forth by the Supreme Court in Garcetti v.
*
The Honorable Sidney H. Stein, of the United States District Court for the Southern District of New York,
sitting by designation.
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Ceballos, 547 U.S. 410 (2006). We further hold that plaintiff cannot assert a claim on behalf of her
coworker because that coworker suffered no infringement of her own constitutional rights.
Accordingly, we reverse the order of the District Court.
JONATHAN LOVETT (Drita Nicaj, on the brief), Lovett &
Gould, LLP, White Plains, NY, for plaintiff-appellee.
MONICA WAGNER, Assistant Solicitor General (Andrew
M. Cuomo, Attorney General of the State of
New York, on the brief, Barbara D. Underwood,
Solicitor General, and Richard Dearing, Assistant
Solicitor General, of counsel), Office of the
Attorney General of the State of New York,
New York, NY, for defendants-appellants.
JOSÉ A. CABRANES, Circuit Judge:
The principal questions presented in this appeal are: (1) whether a public employee engages in
speech protected from retaliation by the First Amendment by relaying a subordinate’s concerns to her
supervisor and by filing a lawsuit; and (2) whether a plaintiff can have third-party standing to assert
claims on behalf of an individual who has suffered no injury.
Defendants-appellants Deborah Haslun, Carlos Millan, Joseph Bloomer, Ramesh Mehta, and
Jonathan Barr (collectively, “defendants”) appeal from an April 3, 2008 order of the United States
District Court for the Southern District of New York (Charles L. Brieant, Jr., Judge) denying their
motion for summary judgment raising the defense of qualified immunity. The underlying action was
brought pursuant to 42 U.S.C. § 1983 by plaintiff-appellee Florence Huth (“plaintiff” or “Huth”), an
employee of the New York State Thruway Authority (“Thruway Authority”). Plaintiff claims that
defendants, who are also employees of the Thruway Authority, violated her rights under the First
Amendment to the Constitution by initiating disciplinary proceedings against her, which resulted in her
demotion. She also asserts that, in doing so, defendants violated the First Amendment rights of her
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coworker. We hold that the conduct that resulted in plaintiff’s demotion does not qualify as speech
protected from retaliation by the First Amendment under the framework set forth by the Supreme
Court in Garcetti v. Ceballos, 547 U.S. 410 (2006). We further hold that plaintiff cannot assert a claim on
behalf of her coworker because the coworker’s own constitutional rights were not violated.
Accordingly, we reverse the order of the District Court.
BACKGROUND
On April 26, 2005, Huth met with Dorothy Archer (“Archer”), one of Huth’s subordinates
within the Thruway Authority. Archer told Huth that certain of her coworkers and supervisors were
selling bootleg DVDs on Thruway Authority premises. Huth alleges that Archer also told her that a
supervisor was giving “special duties” to an African-American coworker, which Huth understood to be
a complaint by Archer about reverse discrimination. Huth conveyed these concerns to her supervisor,
defendant Bloomer, during daily meetings with him. Bloomer responded that he was already aware of
Archer’s concerns.
At some point on April 26, 2005, Huth drove in a Thruway Authority vehicle to a Thruway
Authority facility in Newburgh, New York. Archer accompanied Huth on this trip. Huth stopped at
several toll plazas along the way. During those stops Archer left the car and solicited and obtained
Thruway Authority employees’ signatures on petitions to nominate Archer for a union office. Huth
maintains that Archer did not tell her that she was soliciting signatures during the stops.
Huth alleges that on April 29, 2005, Bloomer advised Huth and Archer that they were both
under investigation for their activities on April 26, 2005, as Thruway Authority policy prohibits
management personnel, such as Huth, from being involved in union elections and prohibits the use of
Thruway Authority vehicles in connection with union elections. After a hearing officer initially cleared
Huth of any wrongdoing, defendant Barr, the Thruway Authority’s Director of Administrative Services,
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informed Huth by letter on April 11, 2007 that she had been found “guilty of misconduct and/or
incompetence for violating Administrative Services Bulletin 2004-16” on Union Elections and that, as a
result, Huth was being demoted to her last permanently-held, lower-level position. Huth v. Haslun, 628
F. Supp. 2d 425, 428 (S.D.N.Y. 2008).
On January 9, 2007, after disciplinary proceedings had begun, but before the Thruway
Authority had decided to demote her, Huth commenced the present action. Specifically, Huth sued
defendants for compensatory and punitive damages pursuant to 42 U.S.C. § 1983, alleging, inter alia,
that they (1) had violated her rights under the First Amendment by disciplining her in retaliation for
reporting Archer’s concerns about other Thruway Authority employees; and (2) had violated, “on a
third-party standing basis,” J.A. 232, her rights under the First Amendment by disciplining her in
retaliation for Archer’s expression of her concerns and for Archer’s union-related activities.1 After
Huth was demoted, she filed an amended complaint, which expanded her first claim by alleging not
only that she was retaliated against for reporting Archer’s concerns, but also for filing the instant action.
On January 11, 2008, defendants moved for summary judgment on the basis that they were
entitled to qualified immunity because, based on undisputed facts, they did not violate Huth’s rights
under the First Amendment. Defendants further argued that Huth lacked standing to bring third-party
claims on behalf of Archer. In an Order dated April 3, 2008, the District Court denied defendants’
motion. Huth, 628 F. Supp. 2d at 432. Specifically, the District Court concluded that Huth’s report of
Archer’s concerns, as well as the filing of this present action, qualified as protected speech under the
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Huth also alleged that defendants had violated her rights under the Equal Protection Clause by selectively
“prosecuting” her, but not others, for violating the Thruway Authority’s policy regarding union elections. We note that
she has withdrawn her equal protection claim in light of the Supreme Court’s decision in Engquist v. Oregon Department of
Agriculture, 128 S. Ct. 2146, 2148-49 (2008), and this Court’s decision in Appel v. Spiridon, 531 F.3d 138, 139-40 (2d Cir.
2008) (finding that, in light of Engquist, “the Equal Protection Clause does not apply to a public employee asserting a
violation of the Clause based on a ‘class of one’ theory of liability”). Appellee’s Br. 1 n.2. Accordingly, we do not
address this claim.
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First Amendment. Id. at 429. The District Court further determined that Huth had third-party
standing to raise First Amendment claims on behalf of Archer. Id. at 430. Defendants filed a timely
notice of appeal.
DISCUSSION
At the outset we note that “[b]ecause the denial of a motion for summary judgment is not a
final judgment, it is generally not immediately appealable.” Walczyk v. Rio, 496 F.3d 139, 153 (2d Cir.
2007). However, there is an exception to this general rule “when the denied motion was based on a
claim of immunity, at least to the extent the immunity claim presents a ‘purely legal question.’” Id.
(quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)); see also O’Bert ex rel. Estate of O’Bert v. Vargo, 331
F.3d 29, 38 (2d Cir. 2003) (observing that “[u]nder the collateral order doctrine . . . the denial of a
qualified-immunity-based motion for summary judgment is immediately appealable to the extent that
the district court has denied the motion as a matter of law, although not to the extent that the defense
turns solely on the resolution of questions of fact”). Here, the District Court’s denial of defendants’
motion for summary judgment turned on questions of law, and accordingly we have jurisdiction to
review the matter.
We review de novo a district court’s denial of summary judgment based on a defense of qualified
immunity, see Papineau v. Parmley, 465 F.3d 46, 55 (2d Cir. 2006), and, of course, summary judgment is
appropriate only if “there is no genuine issue as to any material fact” and the moving party “is entitled
to judgment as a matter of law,” Fed. R. Civ. P. 56(c).
To overcome the defense of qualified immunity, a plaintiff must show both (1) the violation of
a constitutional right and (2) that that constitutional right was clearly established at the time of the
alleged violation. See Pearson v. Callahan, 129 S. Ct. 808, 816 (2009) (“Qualified immunity is applicable
unless the official’s conduct violated a clearly established constitutional right.”). The Supreme Court
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recently has clarified that courts retain discretion to decide which prong of this analysis should be
addressed first in a given case, although it emphasized that it is “often beneficial” to first decide
whether there has been a constitutional violation. Id. at 818 (holding that “while the sequence set forth
[in Saucier v. Katz, 533 U.S. 194 (2001),] is often appropriate, it should no longer be regarded as
mandatory”). We conclude upon a review of the record that Huth cannot show that she suffered a
violation of a constitutional right and, therefore, we need not proceed beyond the first prong of this
inquiry.
I. Huth’s Speech Was Not Protected from Retaliation by the First Amendment
We begin with Huth’s first claim—that defendants violated her rights under the First
Amendment by disciplining her in retaliation for (1) reporting Archer’s concerns about other Thruway
Authority employees and (2) initiating the present action. Whether speech by a public employee is
protected from retaliation under the First Amendment begins with this question: “whether the
employee spoke as a citizen on a matter of public concern.” Garcetti, 547 U.S. at 418. If a public
employee speaks not as a citizen but instead pursuant to his or her “official duties,” an employer’s
response to that speech does not violate the First Amendment. Id. at 421, 424. We recently held in
Weintraub v. Board of Education that “speech can be ‘pursuant to’ a public employee’s official job duties
even though it was not required by, or included in, the employee’s job description, or in response to a
request by the employer.” 593 F.3d 196, 203 (2d Cir. 2010) (holding that a teacher’s union grievance
about school administrators’ failure to discipline a disruptive student was speech made pursuant to an
official duty). We also held that the public employee in that case spoke pursuant to his official duties
because his speech was “part-and-parcel of his concerns about his ability to properly execute his duties
as a public school teacher.” Id. (internal citation and quotation marks and omitted).
Garcetti’s second requirement is that, to be protected from retaliation by the First Amendment, a
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public employee’s speech must be “on a matter of public concern.” 547 U.S. at 418. But see Connick v.
Myers, 461 U.S. 138, 147 (1983) (explaining that, although a public employer’s retaliation for “speech on
private matters” does not violate the First Amendment, speech “not touching upon a matter of public
concern [is not] totally beyond the protection of the First Amendment”). We recently clarified that
“[w]hether or not speech addresses a matter of public concern must be determined by the content,
form, and context of a given statement, as revealed by the whole record, and while motive surely may
be one factor in making this determination, it is not, standing alone, dispositive or conclusive.” Sousa v.
Roque, 578 F.3d 164, 175 (2d Cir. 2009) (internal citation and quotation marks omitted). In doing so we
rejected a categorical approach that places all speech aimed at redressing personal grievances in the
employment context beyond the scope of the First Amendment. See id.
Here the record shows that Huth passed along Archer’s concerns about the actions of certain
Thruway Authority employees to the head of Huth’s division and that she did so at daily meetings
when they discussed the employees in their division. See J.A. 330. We have no difficulty concluding
that such speech was made not as a “citizen” but, rather, pursuant to Huth’s official duties as a
Thruway Authority employee and supervisor. See Garcetti, 547 U.S. at 422 (holding that, by drafting a
memorandum to his supervisors expressing concern about a particular case, a supervising district
attorney acted pursuant to his official duties by “perform[ing] the tasks he was paid to perform”). We
therefore hold that Huth’s conduct did not qualify as speech protected from retaliation by the First
Amendment. As a result, Huth’s claim that defendants retaliated against her for voicing concerns about
the conduct of coworkers is without merit.
The record also makes plain that Huth’s present lawsuit, asserting claims for monetary and
punitive damages, does not qualify as speech “on a matter of public concern.” See id. at 418. Huth’s
original complaint, which she contends was protected speech and the basis for defendants’ further
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retaliation, alleged only that defendants retaliated against her for specific statements she made to her
supervisor and for the union activities of Archer. Much like other public employee speech that we have
held not to be protected from retaliation by the First Amendment, Huth’s lawsuit was “personal in
nature and generally related to her own situation.” Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 143 (2d
Cir. 1993) (quoting Ezekwo v. NYC Health & Hosps. Corp., 940 F.2d 775, 776 (2d Cir. 1991)).
Significantly, there is no suggestion in this record that she “wanted to debate issues of . . .
discrimination, that her suit sought relief against pervasive or systemic misconduct by a public agency
or public officials, or that her suit was part of an overall effort . . . to correct allegedly unlawful practices
or bring them to public attention.” Id. (internal quotation marks omitted) (holding that an employee’s
complaints about sex discrimination were not speech on a matter of public concern) (relying on Yatvin
v. Madison Metro Sch. Dist., 840 F.2d 412, 420 (7th Cir. 1988)); cf. Cotarelo v. Vill. of Sleepy Hollow Police
Dep’t, 460 F.3d 247, 252 (2d Cir. 2006) (finding that complaints did qualify as speech on a matter of
public concern because they concerned “discrimination problems generally and were not limited to
instances affecting only [plaintiff]”). Considering the record as a whole, we conclude that Huth’s
original complaint was not speech on a matter of public concern and, therefore, was not protected
from retaliation by the First Amendment. As a result, Huth’s claim that defendants retaliated against
her for filing this lawsuit is without merit.
II. Huth Lacks Third-Party Standing to Assert a Claim on Behalf of Archer
Turning to Huth’s final claim—that defendants retaliated against her for Archer’s exercise of her
First Amendment rights—we note that we have previously held that “[a] plaintiff may assert the
constitutional claims of a third party if the plaintiff can demonstrate: (1) injury to the plaintiff, (2) a
close relationship between the plaintiff and the third party that would cause plaintiff to be an effective
advocate for the third party’s rights, and (3) some hindrance to the third party’s ability to protect his or
her own interests.” Camacho v. Brandon, 317 F.3d 153, 159 (2d Cir. 2003) (internal citations and
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quotation marks omitted). Implicit in Camacho’s formulation is the requirement that the third
party—here Archer—has a constitutional claim. See id. In this case, Huth does not allege that Archer
suffered any retaliation for her activities, or more broadly, that Archer’s constitutional rights were
violated in any way. Indeed, she concedes that Archer could not have brought a claim herself “because
she did not suffer any injury.” Appellee’s Br. 19; cf. Camacho, 317 F.3d at 160 (noting that the third
party “clearly suffered injury in fact”). Accordingly, Huth cannot raise a claim based on Archer’s First
Amendment rights under the doctrine of third-party standing.
We therefore conclude that Huth cannot show that she suffered a violation of a constitutional
right, and we reverse the District Court’s denial of summary judgment on the issue of qualified
immunity.
CONCLUSION
To summarize, we hold:
(1) that plaintiff did not engage in speech protected from retaliation by the First Amendment by
relaying the concerns of a subordinate to her supervisor or by filing this lawsuit; and
(2) that plaintiff does not have standing to assert claims on behalf of a third party who has
suffered no injury.
For the foregoing reasons, the April 3, 2008 order of the District Court is REVERSED.
Judgment shall enter for the defendants-appellants.
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