[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 17 2000
No. 99-12884
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 98-02473-CIV-T-17B
JANET MAGGIO,
Plaintiff-Appellee,
versus
CATHY SIPPLE, individually;
YOLANDA DENNIS, individually;
et al.,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 17, 2000)
Before EDMONDSON and HULL, Circuit Judges, and WOOD*, Senior Circuit
Judge.
HULL, Circuit Judge:
*
Honorable Harlington Wood, Jr., Senior U.S. Circuit Judge for the Seventh Circuit, sitting
by designation.
Plaintiff-Appellee Janet Maggio (“Maggio”) brought this action against her
employer, the State Department of Labor and Employment Security (“DLES”), and
against Defendants-Appellants Cathy Sipple, Yolanda Dennis, Joyce McKenzie,
Isabell Davis, Jerry Singletary, and Renee Benton, in their individual capacities.
Maggio asserted a § 1983 claim against only the individual Defendants-Appellants
and disability discrimination claims against only DLES under the Americans with
Disabilities Act (“ADA”) and the Rehabilitation Act.
This interlocutory appeal concerns solely Maggio’s § 1983 claim, which
alleges that the individual Defendants retaliated against her for exercising her First
Amendment rights. See 42 U.S.C. § 1983. The individual Defendants appeal the
district court’s denial of their Rule 12(b)(6) motion to dismiss the § 1983 claim on
qualified immunity grounds. See Maggio v. Florida Dep’t of Labor &
Employment Sec., 56 F. Supp.2d 1370 (M.D. Fla. 1999). After review, we
conclude that the individual Defendants are entitled to qualified immunity on
Maggio’s § 1983 claim and reverse.
I. THE COMPLAINT
Maggio was a Customer Service Specialist employed by DLES from April
15, 1985, until her resignation on May 15, 1998. The six individual Defendants
were also DLES employees. Defendant Cathy Sipple was Maggio’s immediate
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supervisor during the relevant time period. The other Defendants held these
positions: Yolanda Dennis was a Personnel Technician; Joyce McKenzie was a
Human Service Program Specialist; Isabell Davis was a Program Administrator;
Jerry Singletary was the Tampa Jobs and Benefits Manager; and Renee Benton was
the Regional Administrator.
Maggio’s complaint states that she is legally blind. Her vision is not better
than 20/300 in her right eye and is worse in her left eye. The complaint alleges that
DLES, through its employees, discriminated against Maggio because of her
disabilities and failed to provide her reasonable accommodations in violation of the
ADA and the Rehabiliation Act. Maggio alleges that DLES, through its
employees, failed, inter alia, to provide special computer equipment to allow her to
have full-line text in 36-point font, to train Maggio regarding computers, to
provide “pink lights,” and to make various other accommodations.
In addition to her several disability discrimination claims, Maggio also
brought a § 1983 claim alleging that the six individual Defendants retaliated
against her after she testified on behalf of Johnnye Davis (“Davis”) at Davis’s
grievance hearings. Davis was Maggio’s supervisor at DLES prior to Cathy
Sipple. Davis was charged with insubordination and filed a grievance. Davis’s
grievance was upheld, and her insubordination charge was overturned. DLES later
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terminated Davis’s employment. Davis appealed that decision. Maggio again
testified on Davis’s behalf in the administrative appeal process. The termination
was overturned, and Davis was reinstated in a management position, although in a
different section.
According to the complaint, Maggio’s testimony at Davis’s hearings “did
not involve matters of Janet Maggio’s personal interest, but were [sic] matters of
public concern in that they related to the fair and honest implementation of the
DLES’s personnel policies and the rights to redress complaints through appeal
procedures established by the DLES.” Complaint, ¶ 21. Maggio alleges that the
individual Defendants retaliated against her by “causing, allowing, or ratifying the
denial of, delay in providing, and failure to provide reasonable accommodations”
for Maggio’s disability. Complaint, ¶ 32. Additionally, Maggio asserts that the
individual Defendants retaliated against her for her protected speech by “causing,
allowing, or ratifying . . . the creation of [a] discriminatory, humiliating,
intimidating, abusive, hostile, working environment that substantially altered the
working conditions under which [she] worked when compared with the terms and
conditions experienced by other employees similarly situated.” Complaint, ¶ 32.
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The district court denied the individual Defendants’ Rule 12(b)(6) motion to
dismiss Maggio’s § 1983 claim based on qualified immunity. Defendants timely
appealed.
II. JURISDICTION AND STANDARD OF REVIEW
The denial of qualified immunity on a motion to dismiss is an appealable
interlocutory order. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806,
2817-18 (1985). We review de novo the denial of qualified immunity. See Jordan
v. Doe, 38 F.3d 1559, 1563 (11th Cir. 1994); Hutton v. Strickland, 919 F.2d 1531,
1536 (11th Cir. 1990). The determination of whether a complaint sufficiently
alleges a constitutional violation is also a matter of law reviewed de novo. See
GJR Invs., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1367 (11th Cir. 1998).
In reviewing the complaint, we accept all well-pleaded factual allegations as true
and construe the facts in the light most favorable to the plaintiff. See id.; Williams
v. Alabama State Univ., 102 F.3d 1179, 1182 (11th Cir. 1997).
III. DISCUSSION
A. Qualified Immunity
“Qualified immunity protects government officials performing discretionary
functions from civil trials (and the other burdens of litigation, including discovery)
and from liability if their conduct violates no ‘clearly established statutory or
5
constitutional rights of which a reasonable person would have known.’” Lassiter
v. Alabama A & M Univ., Bd. of Trustees, 28 F.3d 1146, 1149 (11th Cir. 1994) (en
banc) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738
(1982)).1 The individual Defendants are undisputedly government officials. Thus,
to determine whether these Defendants are entitled to qualified immunity, we
conduct a two-step inquiry. See Harlow, 457 U.S. at 818, 102 S. Ct. at 2738;
Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1281 (11th Cir. 1998). First, we
consider whether “‘the defendant government official [has proved] that he was
acting within the scope of his discretionary authority when the alleged wrongful
act occurred.’” Gonzalez v. Lee County Hous. Auth., 161 F.3d 1290, 1294-95
(11th Cir. 1998) (quoting Evans v. Hightower, 117 F.3d 1318, 1320 (11th Cir.
1997)). If so, then we examine whether the plaintiff has demonstrated that “the
defendant violated clearly established law.” Gonzalez, 161 F.3d at 1295; Harbert
Int’l, 157 F.3d at 1281; see also Rowe v. Schreiber, 139 F.3d 1381, 1383 (11th Cir.
1998).
Maggio does not dispute that the individual Defendants were acting within
the scope of their discretionary authority when the allegedly wrongful conduct
1
See also Gonzalez v. Lee County Hous. Auth., 161 F.3d 1290, 1295 (11th Cir. 1998);
Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1281 (11th Cir. 1998); Tindal v. Montgomery County
Comm’n, 32 F.3d 1535, 1539 (11th Cir. 1994).
6
occurred.2 Thus, we consider only whether Maggio has demonstrated that the
individual Defendants violated clearly-established law. See Gonzalez, 161 F.3d at
1295.
B. Constitutional Violation Required
The Supreme Court has held that a “necessary concomitant” to the question
of whether a plaintiff has alleged a violation of a clearly-established federal right is
“the determination of whether the plaintiff has asserted a violation of a
constitutional right at all.” Siegert v. Gilley, 500 U.S. 226, 232, 111 S. Ct. 1789,
1793 (1991); GJR Invs., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1366-67
(11th Cir. 1998); Cottrell v. Caldwell, 85 F.3d 1480, 1485 (11th Cir. 1996). “If a
plaintiff has not sufficiently alleged a violation of any constitutional right, it is
axiomatic that the plaintiff likewise has failed to allege the violation of a ‘clearly
2
The district court erred in concluding sua sponte that the individual Defendants had not met
their burden at this first step of the analysis. The district court examined whether it was within the
Defendants’ discretionary authority to retaliate against a public employee for a protected exercise
of her First Amendment rights. See Maggio v. Florida Dep’t of Labor & Employment Sec., 56 F.
Supp.2d 1370, 1377 (M.D. Fla. 1999) (reasoning that “[r]etaliation cannot be considered an act
within the individual Defendants’ discretionary authority”). However, as this Court emphasized in
Harbert International, “[t]he inquiry is not whether it was within the defendant’s authority to commit
the allegedly illegal act. . . . ‘Instead, a court must ask whether the act complained of, if done for a
proper purpose, would be within, or reasonably related to, the outer perimeter of an official’s
discretionary duties.’” Harbert Int’l , Inc. v. James, 157 F.3d 1271, 1282 (11th Cir. 1998) (quoting
In re Allen, 106 F.3d 582, 594 (4th Cir. 1997)); see also Sims v. Metropolitan Dade County, 972
F.2d 1230, 1236 (11th Cir. 1992) (rejecting the contention that “any time a government official
violates clearly established law he acts beyond the scope of his discretionary authority” as
“untenable” and explaining that “the question of whether the defendants acted lawfully [is distinct
from] the question of whether they acted within the scope of their discretion”).
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established’ right.” GJR Invs., Inc., 132 F.3d at 1367; see also Marshall v. Allen,
984 F.2d 787, 793 (7th Cir. 1993) (“Courts are not required to examine the clearly
established law at the time of the offense if the plaintiff’s allegations do not assert
a violation of constitutional rights.” (citing Siegert, 500 U.S. at 232, 111 S. Ct. at
1793)). Maggio alleges that the individual Defendants retaliated against her in
violation of her First Amendment right to freedom of speech for testimony she
gave while employed by DLES. Thus, we examine whether Maggio’s complaint
sufficiently alleges a violation of her First Amendment right to freedom of speech.
Maggio does not dispute that, as a government employee, she does not enjoy
an absolute right to freedom of speech. See Bryson v. City of Waycross, 888 F.2d
1562, 1565 (11th Cir. 1989) (“Although the law is well-established that the state
may not demote or discharge a public employee in retaliation for speech protected
under the first amendment, a public employee’s right to freedom of speech is not
absolute.” (citing Rankin v. McPherson, 483 U.S. 378, 107 S. Ct. 2891 (1987))).
Instead, Maggio’s speech is constitutionally protected only if it satisfies both
elements of the test set forth in Pickering v. Board of Education, 391 U.S. 563, 88
S. Ct. 1731 (1968), and refined in Connick v. Myers, 461 U.S. 138, 103 S. Ct.
1684 (1983) (the “Pickering-Connick test”): (1) as a threshold matter, the speech
must be “fairly characterized as constituting speech on a matter of public concern,”
8
Connick, 461 U.S. at 146, 103 S. Ct. at 1690; and (2) her First Amendment
interests in commenting on matters of public concern must outweigh the
government’s interests, “‘as an employer, in promoting the efficiency of the public
services it performs through its employees.’” Connick, 461 U.S. at 142, 103 S. Ct.
at 1687 (quoting Pickering, 391 U.S. at 568, 88 S. Ct. at 1734). See also Bryson,
888 F.2d at 1565. Thus, to establish a constitutional violation, Maggio’s speech
must satisfy both elements of the Pickering-Connick test.
C. No Public Concern Shown
Accordingly, we turn to the threshold question of whether Maggio’s
testimony at Davis’s grievance hearings, as described in her complaint, may be
“fairly characterized as constituting speech on a matter of public concern.”
Connick, 461 U.S. at 146, 103 S. Ct. at 1690; Bryson, 888 F.2d at 1565. “This
question is one of law, not of fact.” Gonzalez, 161 F.3d at 1297 (citing Connick,
461 U.S. at 148 n.7, 103 S. Ct. at 1690 n.7). To involve a matter of public concern,
a government employee’s speech must “relat[e] to any matter of political, social, or
other concern to the community.” Connick, 461 U.S. at 146, 103 S. Ct. at 1690. If
the government 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
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review the wisdom of a personnel decision taken by a public agency allegedly in
reaction to the employee’s behavior.” Connick, 461 U.S. at 147, 103 S. Ct. at
1690.
Therefore, this Court must discern whether Maggio spoke primarily as a
citizen on behalf of the public or primarily as an employee upon matters of
personal interest. See Connick, 461 U.S. at 147-48, 103 S. Ct. at 1690; Morgan v.
Ford, 6 F.3d 750, 754 (11th Cir. 1993). As this Court recognized in Morgan,
because “[a]n employee’s speech will rarely be entirely private or entirely public,”
the “main thrust” of the employee’s speech must be determined. 6 F.3d at 755.
This determination is made by examining “the content, form, and context of a
given statement, as revealed by the whole record.” Connick, 461 U.S. at 147-48,
103 S. Ct. at 1690; Morgan, 6 F.3d at 754.
We find that Maggio’s testimony, in content, form, and context, closely
resembles the speech at issue in Morgan, where this Court held that no public
concern was shown as a matter of law. In Morgan, the plaintiff was a State
Department of Corrections employee, who claimed that she had been retaliated
against for complaining about sexual harassment by her supervisor. 6 F.3d at 751.
One of the plaintiff’s co-workers lodged a complaint against their mutual
supervisor and identified the plaintiff as a corroborating witness. Id. at 752. As a
10
result, the Department Superintendent requested a meeting with the plaintiff.
During that meeting, the plaintiff told the Superintendent about the supervisor’s
behavior towards her and her co-worker. Id. The plaintiff subsequently filed her
own sexual harassment charges against her supervisor, first with the Department’s
Internal Affairs Division, and then with the State Office of Fair Employment
Practices. Id. at 752-53. The plaintiff argued that her complaints of sexual
harassment constituted speech on a matter of public concern because they related
to “a matter of vital social interest.” Id. at 754.
Although this Court in Morgan agreed that workplace sexual harassment is a
matter of important social interest, the Court explained that “the mere fact that the
topic of the employee’s speech was one in which the public might or would have
had a great interest is of little moment.” Id. at 754 (citations omitted). Instead, the
Court emphasized that the relevant inquiry is “whether the purpose of [the
plaintiff’s] speech was to raise issues of public concern . . . or to further her own
private interest.” Id. The Morgan Court observed that the plaintiff’s speech
largely focused on her supervisor’s behavior and its affect on her work, took the
form of complaints to official bodies, did not in any way draw “the public at large
or its concerns into the picture,” and “was driven by her own entirely rational self-
interest in improving the conditions of her employment.” Id. at 755.
11
In Morgan, this Court acknowledged that the plaintiff’s speech about the
harassment of her co-worker “contain[ed] a public concern aspect.” Id. However,
we did not find that determinative and emphasized that “the main thrust of [the
plaintiff’s] speech took the form of a private employee grievance.” Id. As a result,
in Morgan, this Court concluded that the plaintiff’s speech “was not a matter of
public concern.” Id.
For several reasons, we find that under Morgan, Maggio’s § 1983 claim does
not allege any speech on a matter of public concern. First, regarding the forum of
Maggio’s testimony, Maggio alleges that she testified on behalf of her supervisor
at a hearing relating to a grievance her supervisor filed after being charged with
insubordination and at a hearing relating to her supervisor’s administrative appeal
of her termination. Maggio does not allege that these employee grievance hearings
were open to the public. The speech in Morgan was directed to the same type of
official administrative bodies—“the Superintendent of ACMI, Internal Affairs, and
the Office of Fair Employment Practices.” Morgan, 6 F.3d at 755. As a result, this
Court determined in Morgan that the plaintiff “did not relate her concerns about
sexual harassment to the public.” Id. Similarly, Maggio related her concerns to
official administrative bodies but not to the public.
12
Second, as far as the content of Maggio’s testimony, the complaint alleges
that Maggio’s testimony on behalf of Davis “did not involve matters of Janet
Maggio’s personal interest, but were [sic] matters of public concern in that they
related to the fair and honest implementation of the DLES’s personnel policies and
the rights to redress complaints through appeal procedures established by the
DLES.” Complaint, ¶ 21. Just as the public in Morgan might be interested in a
supervisor’s sexual harassment of State Department of Corrections employees, the
public arguably might be interested in the fair and honest implementation of
DLES’s personnel policies and appeal procedures. However, as the Court
emphasized in Morgan, the relevant inquiry is not whether the public would be
interested in the topic of the speech at issue but rather is “whether the purpose of
[the plaintiff’s] speech was to raise issues of public concern.” See Morgan, 6 F.3d
at 754.
The purpose of Maggio’s testimony was to support the grievance of her
supervisor charged with insubordination. Helping one’s supervisor defend a
charge of insubordination and gain reinstatement would curry the favor of one’s
supervisor, or improve the conditions of her employment to some extent, and thus
further Maggio’s personal interest. Additionally, Maggio does not allege that her
testimony at her supervisor’s hearings was about any fraud or corruption in
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DLES’s implementation of its personnel policies and appeal procedures either in
general or in Davis’s case in particular. Much like the speech in Morgan, the
primary purpose of Maggio’s testimony appears to have been to support an
employee’s private grievance—her supervisor’s effort to have her insubordination
charge overturned and to be reinstated after her termination. See Morgan, 6 F.3d at
755. Moreover, as in Morgan, the fact that Maggio was testifying in another
employee’s grievance proceedings, rather than her own grievance, does not
automatically establish that Maggio’s speech involved a matter of public concern.
See Morgan, 6 F.3d at 755 (noting that part of the plaintiff’s speech in issue was
“about her co-worker’s plight”).3 For all of these reasons, we conclude that
Maggio did not speak primarily as a citizen on behalf of the public but instead
spoke primarily as an employee upon matters of personal interest. See Connick,
461 U.S. at 147-48, 103 S. Ct. at 1690; Morgan v. Ford, 6 F.3d at 754.
Even though Morgan is closely in point, Maggio relies heavily upon our
decision in Tindal v. Montgomery County Commission, 32 F.3d 1535 (11th Cir.
1994), where the speech at issue was held to be a matter of public concern.
3
See also Morgan, 6 F.3d at 752 (explaining that the plaintiff initially met with the
Superintendent to discuss her co-worker’s sexual harassment charges against her supervisor, that
at the meeting, the plaintiff also told the Superintendent about her supervisor’s behavior toward her,
and that acting on the suggestion of the Superintendent, the plaintiff then filed her own charges
against her supervisor).
14
However, Tindal involved circumstances materially different from those in this
appeal. The plaintiff in Tindal was a County Sheriff’s office employee who
executed an affidavit in a race and sex discrimination lawsuit against the Sheriff in
federal court and, at the jury trial, testified, under subpoena, about the working
environment in the office. Id. at 1537. In finding that the plaintiff’s testimony
touched on a matter of public concern, the Court stressed that the speech in Tindal
“took place in a public forum (a federal district court proceeding), not in a private
context.” 32 F.3d at 1540. In contrast, Maggio does not allege that her speech
took place in a public forum. Instead, she alleges only that she testified at her
supervisor’s two administrative grievance hearings.
In Tindal, the Court also emphasized that the plaintiff “was not a plaintiff [in
the race discrimination and sexual harassment suit] and could not recover damages
if the suit succeeded.” 32 F.3d at 1540. The Court found the plaintiff’s speech in
Tindal “did not constitute an employee grievance motivated merely ‘by [the
employee’s] . . . rational self-interest in improving the conditions of her
employment.’” Id. (quoting Morgan, 6 F.3d at 755). As already discussed,
however, Maggio’s testimony was primarily motivated by her rational self-interest
in improving the conditions of her employment by helping her supervisor defend
against a charge of insubordination and gain reinstatement.
15
In sum, Maggio’s speech is analogous to the speech in Morgan and not to
the speech in Tindal. Indeed, the content, form, and context of Maggio’s
testimony, as described in her complaint, require us to conclude that Maggio has
not alleged speech on a matter of public concern. Because she has not satisfied this
threshold inquiry, it is not necessary to reach the next step in the Pickering-
Connick analysis. Instead, we find that Maggio has not alleged a First Amendment
violation.
D. No Notice that Actions Would Violate Clearly-Established Law
Even assuming arguendo that Maggio has alleged a First Amendment
violation, we also conclude that the individual Defendants are nonetheless entitled
to qualified immunity. To defeat a defendant’s claim to qualified immunity, a
plaintiff must show that a reasonable person in the defendant’s position would
have been on notice that his actions violated clearly-established law. See Martin v.
Baugh, 141 F.3d 1417, 1420 (11th Cir. 1998), cert. denied 525 U.S. 1104, 119 S.
Ct. 870 (1999); Rowe v. Schreiber, 139 F.3d 1381, 1384 (11th Cir. 1998); Lassiter
v. Alabama A & M Univ. Bd. of Trustees, 28 F.3d 1146, 1150 (11th Cir. 1994).
Maggio has not made such a showing.
“For the law to be clearly established to the point that qualified immunity
does not apply, the law must have earlier been developed in such a concrete and
16
factually defined context to make it obvious to all reasonable government actors, in
the defendant’s place, that ‘what he is doing’ violates federal law.” Lassiter, 28
F.3d at 1149 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034,
3039 (1987)). As this Court emphasized in Lassiter, “courts must not permit
plaintiffs to discharge their burden by referring to general rules and the violation of
abstract ‘rights.’” Id. at 1150. This is because “[q]ualified immunity is a doctrine
that focuses on the actual, on the specific, on the details of concrete cases.” Id. at
1149-50. “If case law, in factual terms, has not staked out a bright line, qualified
immunity almost always protects the defendant.” Post v. City of Fort Lauderdale,
7 F.3d 1552, 1557 (11th Cir. 1993), as modified, 14 F.3d 583 (11th Cir. 1994).
Because the analysis of First Amendment retaliation claims under the
Pickering-Connick test “involve[s] legal determinations that are intensely fact-
specific and do not lend themselves to clear, bright-line rules . . . a defendant in a
First Amendment suit will only rarely be on notice that his actions are unlawful.”
Martin v. Baugh, 141 F.3d 1417, 1420 (11th Cir. 1998). To establish that the
defendant was on notice, the plaintiff must “either produce a case in which speech
materially similar to [hers] in all Pickering-Connick respects was held protected, . .
. or show that, on the facts of [her] case, no reasonable person could believe that
both prongs of the test had not been met.” Id.
17
As already indicated in the discussion of whether Maggio has alleged a First
Amendment violation, the allegations of Maggio’s complaint do not so clearly
establish that her testimony at Davis’s grievance hearings satisfied both prongs of
the Pickering-Connick test that “no reasonable person could believe that both
prongs of the test had not been met.” Id. Furthermore, we find that Maggio has
failed to produce a case in which speech materially similar to hers was held to be
protected. Consequently, Maggio has not established that the individual
Defendants’ actions violated her clearly-established rights.
IV. CONCLUSION
For these reasons, we conclude that the individual Defendants are entitled to
qualified immunity. The order of the district court denying qualified immunity to
the individual Defendants is reversed and vacated, and the case is remanded to the
district court with instructions to grant the individual Defendants’ motion to
dismiss Maggio’s § 1983 claim against them.
REVERSED, VACATED, and REMANDED.
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