                                                                                   [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


                                          2
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


                                          3
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.




                                           4
      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”).

                                                   7
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


                                         9
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


                                          13
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.




                                         18
