[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 97-8268
________________________
D. C. Docket No. 1:95-2351-CC
MELVIN GRIGLEY,
Plaintiff-Appellant,
versus
CITY OF ATLANTA; BEVERLY HARVARD,
in her official capacity as Police
Chief of the City of Atlanta; S.M. O’BRIEN,
individually and in her official capacity
as Major in the City of Atlanta
Police Department; CLAIRE D’AGOSTINO,
individually and in her official capacity
as Psychologist employed by the City of
Atlanta; LOU R. MOORE, individually and in
his official capacity as Sergeant in the
City of Atlanta Police Department;
JIMMY MARTIN, individually and in his
official capacity as Sergeant in the
City of Atlanta Police Department,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 4, 1998)
Before BLACK and BARKETT, Circuit Judges, and PROPST*, Senior
District Judge.
BLACK, Circuit Judge:
*
Honorable Robert B. Propst, Senior U.S. District Judge for the Northern District of
Alabama, sitting by designation.
Appellant Melvin Grigley (Grigley) brought this action against the City of
Atlanta and its agents pursuant to 42 U.S.C. § 1983, alleging that he was retaliated
against in violation of his First Amendment right to petition. The district court
granted the Appellee’s motion for summary judgment, ruling that Grigley’s expression
was not protected by the First Amendment because it did not relate to a matter of
public concern. We hold the “public concern” requirement applies to First
Amendment right to petition claims.
I. BACKGROUND
Grigley is a male police officer employed as a Sergeant by the City of Atlanta
Police Department. He is a 22-year veteran of that department. On May 31, 1993,
Grigley was involved in a physical altercation at his home with Officer Phyllis Hayes-
Dix, a female Atlanta police officer. The fight resulted from a dispute regarding the
paternity of Hayes-Dix’s son. City of East Point police officers were called to the
scene and issued citations for disorderly conduct to Grigley and Hayes-Dix. Grigley
alleges that although he was “repeatedly encouraged” to “drop” the charges against
Hayes-Dix, he nevertheless testified against her. Hayes-Dix was found guilty of the
charges and fined, while Grigley was found not guilty.1
1
The City of Atlanta Police Department’s Office of Professional Standards (OPS) conducted
an investigation of the incident between Grigley and Hayes-Dix and recommended that both officers
be charged with violating departmental work rules. The final disciplinary authority determined that
2
Grigley contends that he was subjected to retaliation for pursuing the criminal
charges against Hayes-Dix. The alleged retaliation consisted of disciplinary actions
taken against him in connection with two other incidents. In November 1993, Grigley
was involved in a physical altercation at his home with Karen Jackson, the mother of
his daughter. Although he explained that he had been attacked by Jackson, the City
of Atlanta Police Department’s Office of Professional Standards (OPS) imposed a
one-day suspension on Grigley, which was overturned on appeal. He was referred to
the City’s Psychological Services Unit (PSU) for an Early Warning Evaluation. On
March 1, 1994, Grigley was involved in a traffic accident in which his vehicle collided
with a vehicle driven by Jackson. He asserts that his vehicle accidently hydroplaned
into Jackson’s vehicle. Grigley alleges that he was taken to the OPS offices against
his will and was required to take a drug test. He also was required to return to PSU
and to attend counseling and domestic violence prevention classes. Grigley asserts
that he was not at fault in either of the incidents and that the actions taken against him
were in retaliation for his refusal to drop the charges against Hayes-Dix.
Grigley would not be disciplined and that Hayes-Dix would receive a 2-day suspension.
3
The district court granted summary judgment against Grigley on his First
Amendment claim, holding that Grigley’s testimony against Hayes-Dix could not be
characterized as speech on a matter of public concern. This appeal followed.2
II. DISCUSSION
Claims by public employees of retaliation in violation of the First Amendment
right to freedom of speech are analyzed in four steps. See Bryson v. City of Waycross,
888 F.2d 1562, 1565 (11th Cir. 1989). First, the court makes the threshold
determination of “whether the employee’s speech may be ‘fairly characterized as
constituting speech on a matter of public concern.’” Id. (quoting Rankin v.
McPherson, 483 U.S. 378, 384, 107 S. Ct. 2891, 2896-97 (1987)). Second, if the
court determines that the speech addresses a matter of public concern, the court
balances the employee’s First Amendment interests against “‘the interest of the state,
as an employer, in promoting the efficiency of the public services it performs through
its employees.’” Id. (quoting Pickering v. Board of Educ. of Township High Sch. Dist.
2
In his complaint, Grigley alleged various other federal Constitutional and state law claims.
The district court granted the Appellees’ motion for summary judgment on all counts. Grigley
raised the following issues on appeal: (1) whether the district court erred in granting summary
judgment against Grigley on his Equal Protection claim of gender discrimination; (2) whether the
individually named defendants are entitled to qualified immunity from the federal claims; (3)
whether the individually named defendants are immune from the state law claims; and (4) whether
the district court erred in granting summary judgment to the City of Atlanta on Grigley’s claims
brought pursuant to 42 U.S.C. § 1983. These issues do not warrant discussion. We affirm the
district court.
4
205, 391 U.S. 563, 568, 88 S. Ct. 1731, 1734-35 (1968)). Third, if the court finds that
the employee has satisfied the first two requirements, the fact-finder determines
whether the employee’s protected speech played a substantial part in the adverse
employment decision. Id. Fourth, if the employee has prevailed on each of the
previous three requirements, the state must prove by a preponderance of the evidence
that “‘it would have reached the same decision . . . even in the absence of the protected
conduct.’” Id. at 1566 (quoting Mt. Healthy City School District Board of Education
v. Doyle, 429 U.S. 274, 286, 97 S. Ct. 568, 576 (1977)).
The district court dismissed Grigley’s claim at the first step of this analysis,
ruling that Grigley’s speech did not involve a matter of public concern. Grigley does
not contest the district court’s finding that the charges and testimony against Hayes-
Dix did not involve a mater of public concern. Grigley argues instead that the district
court failed to distinguish his right to petition claim from the freedom of speech
claims at issue in this Circuit’s prior case law. Specifically, Grigley asserts that the
public concern requirement is not applicable to a right to petition claim.
The majority of circuits that have considered whether the public concern
requirement applies to First Amendment retaliation claims based on the right to
petition have determined that it does apply to such claims. Valot v. Southeast Local
Sch. Dist. Bd. of Educ., 107 F.3d 1220, 1226 (6th Cir. 1997), cert. denied, 118 S. Ct.
5
164 (1997); White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (2d Cir.
1993); Hoffman v. Mayor, Councilmen and Citizens of Liberty, 905 F.2d 229, 233 (8th
Cir. 1990); Schalk v. Gallemore, 906 F.2d 491, 498 (10th Cir. 1990); Belk v. Town of
Minocqua, 858 F.2d 1258, 1261-62 (7th Cir. 1988); Day v. South Park Indep. Sch.
Dist., 768 F.2d 696, 701 (5th Cir. 1985). Grigley asks that we adopt the minority
position announced by the Third Circuit in San Filippo v. Bongiovanni, 30 F.3d 424
(3d Cir. 1994), holding that there is no public concern requirement for Petition Clause
claims.3
The issue has not been addressed specifically by this Circuit. We have had
cases factually similar to the present case that were brought as freedom of speech
claims, but could have been framed as right to petition claims. In those cases, we did
not distinguish between First Amendment retaliation claims based on freedom of
3
Although we do not find the reasoning of Bongiovanni to be persuasive, it is not clear that
Bongiovanni would support Grigley under these facts. Bongiovanni repudiates the public concern
requirement where the government employer “formally adopts a mechanism for redress of those
grievances for which government is allegedly accountable,” reasoning that “when one files a
‘petition’ one is addressing government and asking government to fix what, allegedly, government
has broken or has failed in its duty to repair.” 30 F.3d at 442. Grigley’s claim can be distinguished
for two reasons: (1) Grigley did not file any sort of claim or grievance at all, but merely testified
against a female co-worker and refused to “drop” charges against that co-worker; and (2) Grigley
did not seek to redress any adverse action taken by the government employer against him. The
holding in Bongiovanni focuses on the relationship between the government employer and the
employee and seeks to vindicate the right of the employee to pursue the employer’s formal grievance
process. The facts of the present case do not fall within that framework.
6
speech and those based on the right to petition.4 For example, Morgan v. Ford, 6 F.3d
750 (11th Cir. 1993), the case relied on by the district court, involved a grievance filed
against a government employer and its facts therefore would have supported a right
to petition claim.5 We concluded that “[a]s an employee grievance, Morgan’s speech
was not a matter of public concern,” and “[s]ummary judgment on Morgan’s section
1983 claim was therefore appropriate.” Id. at 755.
The public concern requirement has its origins in Connick v. Meyers, 461 U.S.
138, 103 S. Ct. 1684 (1983). Connick involved a claim by a government employee
that she was terminated in retaliation for circulating a questionnaire critical of
employment conditions. The Supreme Court concluded that although public
employees do have some First Amendment interest in speech that does not involve a
4
See, e.g., Holbrook v. City of Alpharetta, 112 F.3d 1522, 1529-30 (11th Cir. 1997)
(rejecting claim of retaliatory discrimination because disabled employee’s filing of state ante litem
claim as a prerequisite to bringing a legal action against the City for discrimination did not constitute
speech on a matter of public concern); Watkins v. Bowden, 105 F.3d 1344, 1352-54 (11th Cir. 1997)
(rejecting claim of retaliatory termination based on employee’s complaints of harassment, explaining
that “if Watkins’s complaints did not affect a matter of public concern, her First Amendment claims
must fail”); Renfroe v. Kirkpatrick, 722 F.2d 714, 715 (11th Cir. 1984) (rejecting retaliatory non-
rehiring claim of teacher who had filed a grievance with the Superintendent of Education, stating
that “plaintiff’s grievance is protected under the First Amendment only if it related to a matter of
public concern.”).
5
The employee’s speech at issue in Morgan consisted of “complaints to official bodies –
the Superintendent of the ACMI, Internal Affairs, and the Office of Fair Employment Practices.”
6 F.3d at 755. This Court held that “Morgan primarily spoke as an employee in order to improve
her work environment. . . . [T]he main thrust of her speech took the form of a private employee
grievance.” Id.
7
matter of public concern, that interest is categorically outweighed by the employer’s
interest in the efficient functioning of the workplace.
[I]f Myers’ questionnaire cannot be fairly characterized as constituting
speech on a matter of public concern, it is unnecessary for us to
scrutinize the reasons for her discharge. . . .
. . . [W]hen 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. at 146-47; 103 S. Ct. at 1690.
The public concern requirement exists because that category of expression is
at the core of the First Amendment’s protections: “Our holding today is grounded in
our long-standing recognition that the First Amendment's primary aim is the full
protection of speech upon issues of public concern, as well as the practical realities
involved in the administration of a government office.” Id. at 154; 103 S. Ct. at 1694.
Thus, the employer’s interest in the efficient functioning of the workplace is
potentially overridden only where the employee’s speech implicates the central value
of the First Amendment by addressing a matter of public concern.
The rationale of Connick applies to expression that takes the form of a petition
as well as expression that takes the form of speech. The Petition Clause is not entitled
to any greater protection than the Free Speech Clause:
8
The Petition Clause . . . was inspired by the same ideals of liberty and
democracy that gave us the freedoms to speak, publish, and assemble.
These First Amendment rights are inseparable, and there is no sound
basis for granting greater constitutional protection to statements made in
a petition to the President than other First Amendment expressions.
McDonald v. Smith, 472 U.S. 479, 485, 105 S. Ct. 2787, 2791 (1985) (citations
omitted). The distinction urged by Grigley between retaliation claims based on
freedom of speech and those based on the right to petition was not envisioned in
Connick:
To presume that all matters which transpire within a government office
are of public concern would mean that virtually every remark—and
certainly every criticism directed at a public official—would plant the
seed of a constitutional case. While as a matter of good judgment, public
officials should be receptive to constructive criticism offered by their
employees, the First Amendment does not require a public office to be
run as a roundtable for employee complaints over internal office affairs.
Connick, 461 U.S. at 149, 103 S. Ct. at 1691.
We hold that a public employee’s claims of retaliation in violation of the First
Amendment right to petition is subject to the public concern requirement.
Accordingly, where a public employee’s petition does not address a matter of public
concern, the judicial inquiry should end at the first of the four steps outlined in
Bryson, and no specific balancing of interests is necessary.
AFFIRMED.
9