[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Nov. 9, 2009
No. 08-16778 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00394-CV-A-N
MARY K. LYON,
Plaintiff-Appellant,
versus
WILLIAM ROBERT ASHURST, individually
and in his capacity as Section Engineer
and Supervisor of the Right-of-Way Division,
Alabama Department of Transportation,
JOHN THOMAS HALL, individually and in
his capacity as a co-employee in the
Alabama Department of Transportation
Right-of-Way Division,
RANDALL A. ESTES, individually and in his
capacity as Section Supervisor of William
Robert Ashurst in the Alabama Department
of Transportation Right-of-Way Division,
D. JOE MCINNES, individually and in his
capacity as Transportation Director of the
Alabama Department of Transportation,
Defendants-Appellees,
JACKIE GRAHAM, individually and in her
capacity as Personnel Director for the
Alabama Department of Transportation,
Defendant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(November 9, 2009)
Before EDMONDSON, BLACK and KRAVITCH, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Mary K. Lyon appeals the dismissal of her employment-
related complaint against Appellees Joe McInnes, Director of the Alabama
Department of Transportation (“ALDOT”), and ALDOT employees Joe William
Ashurst, John Thomas Hall, and Randall Estes. No reversible error has been
shown; we affirm.
According to the complaint, Plaintiff began work as an Administrative
Support Assistant to Appellee Ashurst in February 2005. On 22 December 2005,
an incident occurred between Plaintiff and her co-worker, Appellee Hall, about
which Plaintiff filed a grievance for violence in the workplace. In response to
Plaintiff’s filing, Ashurst advised Plaintiff that she was out of line and needed to
2
“chill”. Plaintiff’s grievance was not the first filed against Hall. Linda Lee,
another ALDOT employee, filed a grievance against Hall; and Plaintiff was
subpoenaed to attend the hearing on Lee’s grievance. Plaintiff claims that Ashurst
advised her not to attend the Lee hearing; and although Plaintiff feared Ashurst
would retaliate against her, she attended the 31 January 2006 hearing as required
by the subpoena. Shortly thereafter, Plaintiff claims Ashurst falsely accused her of
making a mistake on his leave slip. In early March 2006, Ashurst issued Plaintiff a
written reprimand for a collection of minor infractions. On 27 March 2006,
Plaintiff turned in a notice of resignation in which she stated she was resigning for
health reasons.
On 20 April 2006, Ashurst issued a memo requesting that Appellee Estes,
ALDOT Division Engineer, place a “Do Not Re-hire” in Plaintiff’s personnel file
because of her “disruptive, argumentative, and confrontational behavior.”
Performance appraisal forms also were included in Plaintiff’s personnel file to the
effect that she should not be rehired because of disruptive behavioral issues.
Unaware of these forms counseling against rehire, Plaintiff sought -- and was
denied -- other jobs within ALDOT, the State of Alabama, and other state agencies.
Plaintiff’s complaint set out a plethora of claims against Appellees in their
individual and official capacities based on alleged retaliation for the grievance she
3
filed against Hall and for her participation in the Lee hearing. As explained in a
thorough 24-page opinion, the district court determined that all claims were due to
be dismissed. Plaintiff argues on appeal that the district court erred when it
granted Appellees’s Rule 12(b)(6) motion to dismiss (1) her 42 U.S.C. §1983 claim
for violation of her First Amendment rights; (2) her 42 U.S.C. §1985(2) claim for
obstruction of justice and gender-based animus discrimination; and (3) her state
law claim of libel.
Plaintiff’s Section 1983 First Amendment Claim
Plaintiff claims error in the district court’s determination that Plaintiff’s
speech related to the grievances she and her coworker filed against Hall was not
protected speech under the First Amendment. To be constitutionally protected, a
public employee’s speech must, among other things, be “fairly characterized as
constituting speech on a matter of public concern.” Connick v. Myers, 103 S.Ct.
1684, 1690 (1983). If a public employee speaks “not as a citizen upon matters of
public concern, but instead as an employee upon matters only of personal interest,
absent the most unusual circumstances, a federal court is not the appropriate forum
in which to review the wisdom of a personnel decision taken by a public agency
allegedly in reaction to the employee’s behavior.” Id. And while public
employees are not stripped of all First Amendment rights, the First Amendment
4
“does not empower [public employees] to constitutionalize the employee
grievance.” Garcetti v. Ceballos, 126 S.Ct. 1951, 1959 (2006) (internal quotation
and citation omitted). Because an employee’s speech often will touch at least to
some degree upon private and public concerns, see Morgan v. Ford, 6 F.3d 750,
754 (11th Cir. 1993), we look to the content, form, and context of the speech to
discern its “main thrust.” Id. at 754-55. Whether the public employee’s speech
may fairly be characterized as addressing a matter of public concern is a question
of law. Gonzalez v. Lee County Hous. Auth., 161 F.3d 1290, 1297 (11 th Cir.
1997).
As set out in the complaint, Plaintiff’s speech was in the context of an
administrative proceeding, was personal to her and another employee, involved no
public forum, and -- other than in the most abstract sense -- involved no matter of
public concern. Citing our decision in Maggio v. Sipple, 211 F.3d 1346 (11 th Cir.
2000), in which we concluded an employee’s testimony at another employee’s
grievance proceeding was not protected under the First Amendment, the district
court concluded that Plaintiff alleged no First Amendment violation. Our review
of the content, form and context of Plaintiff’s speech, confirms that Plaintiff has
alleged no speech on a matter of public concern; her First Amendment claim was
due to be dismissed.
5
Plaintiff’s Section 1985(2) Claim
The second part of section 1985(2),* prohibits two or more persons from
conspiring:
for the purpose of impeding, hindering, obstructing, or
defeating, in any manner, the due course of justice ...
with intent to deny to any citizen the equal protection of
the laws, or to injure him or his property for lawfully
enforcing, or attempting to enforce, the right of any
person, or class of persons, to the equal protection of the
laws;
42 U.S.C. § 1985(2). According to Plaintiff, by placing a “Do Not Re-hire”
classification and poor performance appraisal in her file (or approving the
placement), Defendants conspired to interfere with her civil rights in violation of
section 1985(2).
To state a claim under section 1985(2), Plaintiff must plead a private
conspiracy with a racial or otherwise class-based invidiously discriminatory
motivation. See Mason v. Village of El Portal, 240 F.3d 1337, 1340 (11 th Cir.
2001) (failure to establish invidiously discriminatory racial animus behind
conspiratorial decision defeated section 1985(2) claim). The district court
dismissed Plaintiff’s original complaint because it failed to allege that
*
The first part of section 1985(2) addresses conspiracies affecting proceedings in a court
of the United States; it has no application to a state administrative proceeding. See Seeley v.
Brotherhood of Painters, 308 F.2d 52, 58 (5th Cir. 1962).
6
Defendants’s purported conspiratorial acts were motivated by a racial or class-
based animus. So, too, Plaintiff’s amended complaint was dismissed because it
failed to allege or support an inference that the claimed conspiracy as a whole was
motivated by class-based animus.
We agree. Plaintiff’s grounds for her entitlement to relief were no more than
“labels and conclusions, and a formulaic recitation of the elements of a cause of
action.” See Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007).
Even accepting all the allegations in Plaintiff’s amended complaint as true, only
speculation can fill the gaps in the complaint. The complaint alleges that both
Plaintiff and the other grievant are members of a protected class -- female -- and
that Defendant Hall acted with invidiously discriminatory motivation; but no facts
are pleaded to tie that class-based motivation to the acts of the other Defendants
who (unlike Hall) actually participated in or approved the placement of the
negative material in Plaintiff’s employment file.
Plaintiff’s State Law Libel Claims
Count 3 of Plaintiff’s complaint set out a defamation claim premised on
Defendants’s placement of a “mental ward” sign in the workplace. The district
court concluded -- and Plaintiff concedes -- that claim was barred by the statute of
limitations. In a Motion to Amend or Vacate Order, Plaintiff sought to have the
7
district court consider her defamation claim as premised on the negative materials
placed in her employment file. These materials were not included in the
defamation count but were otherwise in the complaint. The district court refused to
do so: if Plaintiff wished to assert new defamation claims, the appropriate
procedure was to file a motion to amend the complaint.
Dismissal of the defamation count as pleaded is due to be affirmed: the
statute of limitations was dispositive. The district court is not tasked with
responsibility for sifting through a complaint in search of other facts that might
suggest an alternative basis to support a particular cause of action. The defamation
claim Plaintiff now advances was no part of the defamation count of the complaint;
and Plaintiff never sought to amend the complaint to add this alternative
defamation count. The district court committed no error.
We have reviewed and find without merit other arguments advanced by
Plaintiff.
AFFIRMED.
8