                                    Janet MAGGIO, Plaintiff-Appellee,

                                                     v.

       Cathy SIPPLE, individually; Yolanda Dennis, individually; et al., Defendants-Appellants.

                                               No. 99-12884.

                                      United States Court of Appeals,

                                             Eleventh Circuit.

                                               May 17, 2000.

Appeal from the United States District Court for the Middle District of Florida.(No. 98-02473-CIV-T-17B),
Elizabeth A. Kovachevich, Chief Judge.

Before EDMONDSON and HULL, Circuit Judges, and WOOD*, Senior Circuit Judge.

        HULL, Circuit Judge:

        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



  *
   Honorable Harlington Wood, Jr., Senior U.S. Circuit Judge for the Seventh Circuit, sitting by designation.
        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 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 Rehabilitation 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 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



                                                       2
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.

         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, 86 L.Ed.2d 411 (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 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, 73 L.Ed.2d 396 (1982)).1 The individual

     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

                                                        3
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 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


(11th Cir.1994).
     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").

                                                      4
asserted a violation of a constitutional right at all." Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789,

1793, 114 L.Ed.2d 277 (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 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, 97 L.Ed.2d 315 (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, 20 L.Ed.2d 811 (1968), and refined in Connick v. Myers, 461 U.S.

138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (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," 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




                                                         5
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 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



                                                     6
lodged a complaint against their mutual supervisor and identified the plaintiff as a corroborating witness. Id.

at 752. As a 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.

        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



                                                      7
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.

         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 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



                                                       8
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. 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.

   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).

                                                       9
        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, 142 L.Ed.2d 771 (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 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, 97 L.Ed.2d 523

(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).




                                                       10
         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.

        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.




                                                       11
