     11-3919-cv
     Singer v. Ferro

1                      UNITED STATES COURT OF APPEALS

2                          FOR THE SECOND CIRCUIT

3                             August Term, 2012

4         (Argued: August 20, 2012           Decided: April 1, 2013)

5                           Docket No. 11-3919-cv

6                   -------------------------------------

7              KENT SINGER, THOMAS NOLLNER, JONATHAN DECKER,

8                          Plaintiffs-Appellants,

9                                    - v -

10       CHRISTOPHER C. FERRO, sued in his individual capacity, JON
11     BECKER, sued in his individual capacity, PAUL J. VAN BLARCUM,
12   Ulster County Sheriff, sued in his individual capacity, JAMES R.
13    HANSTEIN, Superintendent of Corrections, sued in his individual
14      capacity, FRANK FALUOTICO, sued in his individual capacity,
15                            COUNTY OF ULSTER,

16                          Defendants-Appellees.

17                  -------------------------------------

18   Before: NEWMAN, CABRANES, and SACK, Circuit Judges.

19             Appeal by the plaintiffs from a judgment of the United

20   States District Court for the Northern District of New York

21   (David N. Hurd, Judge) granting summary judgment to the

22   defendants on the plaintiffs' First Amendment claims asserted

23   pursuant to 42 U.S.C. § 1983.   The plaintiffs, at all relevant

24   times public employees, alleged that the defendants, government

25   officials, retaliated against them for exercising their First

26   Amendment rights of freedom of speech and of political

27   association.   The district court concluded that the plaintiffs

28   could not sustain their claims because the conduct for which they
1    assert the defendants retaliated did not implicate a matter of

2    public concern.   We agree with the district court, and therefore

3    affirm.

4                              STEPHEN BERGSTEIN, Bergstein & Ullrich,
5                              LLP, Chester, New York, for Plaintiffs-
6                              Appellants.

7                              EARL T. REDDING, Roemer Wallens Gold &
8                              Mineaux LLP, Albany, New York, for
9                              Defendants-Appellees.

10   SACK, Circuit Judge:

11              Plaintiffs Kent Singer, Thomas Nollner, and Jonathan

12   Decker appeal from a judgment of the United States District Court

13   for the Northern District of New York (David N. Hurd, Judge)

14   granting summary judgment to the defendants on the plaintiffs'

15   First Amendment retaliation claims brought pursuant to 42 U.S.C.

16   § 1983.   The plaintiffs allege that the defendants, who are

17   supervisors or officials at the Ulster County, New York Sheriff's

18   Office and the county jail, took adverse employment actions

19   against them in retaliation for a parody created by Singer that

20   suggested corruption among jail officials, and for subsequently

21   filing a lawsuit based upon this alleged retaliation.   Because we

22   agree with the district court that neither Singer's parody nor

23   the plaintiffs' lawsuit were what the law considers to be, for

24   these purposes, speech "[1] as a citizen [2] on a matter of

25   public concern," Garcetti v. Ceballos, 547 U.S. 410, 418 (2006),

26   we affirm.




                                      2
1                                  BACKGROUND

2               This lawsuit arises out of events that took place

3    during the autumn of 2008 at the Ulster County Jail (the "UCJ")

4    in Ulster County, New York.    At the time, Singer, Decker, and

5    Nollner were employed at the UCJ, Singer as a corporal, and

6    Decker and Nollner as corrections officers.

7               A.   The Parody

8               During a shift in mid-September 2008, Singer created a

9    parody on his work computer.    A copy of it is annexed to this

10   opinion.   It was a spoof on the familiar Absolut Vodka

11   advertisements, which typically display an Absolut Vodka bottle

12   adorned or transformed in some thematic fashion, and beneath the

13   bottle a two-word phrase beginning with the word "Absolut."

14   Singer's version displayed in or on the bottle pictures of four

15   UCJ officials -- two of whom are defendants Becker and Ferro --

16   and the caption read, "Absolut Corruption."    The parody was not

17   original; Singer got the idea from a similar "Absolut Corruption"

18   parody that he had found on the Internet.    He printed out the

19   previous version and then overlaid it with images of his targets.

20              At his deposition, Singer described his parody as "a

21   political statement" that he "thought . . . was funny."    Dep. of

22   Kent Singer, Oct. 25, 2010 ("Singer Dep."), at 19; Joint App'x at

23   237.   He meant the parody to refer to what he considered to be

24   corrupt practices among jail officials involving preferential

25   hiring and staffing, selective enforcement in matters of employee



                                       3
1    discipline, and other miscellaneous forms of favoritism.         When

2    asked whether "the reasons [he regarded the persons portrayed as

3    corrupt] are generally internal reasons," he replied "Yes,"

4    stating that his complaints concerned both his "specific

5    employment within the jail" and matters of employment "in

6    general."       Singer Dep. at 39; Joint App'x 242.

7                   After he created the parody, Singer showed it to five

8    fellow employees.        Among them were Nollner and Decker.   Singer

9    then discarded the parody in a trash can in an employee common

10   area.       He testified at his deposition that he never intended to

11   show it to anyone else.        His intentions were thwarted, however,

12   when another employee retrieved the parody from the trash.

13   Eventually, it made its way to the people depicted on the bottle,

14   including defendants Ferro and Becker.1

15                  B.   The Alleged Retaliation

16                  Ferro and Becker, who were both UCJ supervisors,

17   thought that all three of the plaintiffs were involved in

18   creating the parody.        They allegedly used their supervisory

19   authority to retaliate against the plaintiffs.

20                  The first incident took place in late September 2008.

21   Since April of that year, Singer had not been required to

22   participate in "prisoner transports."         This was at Singer's

23   request: His mother had been ill, and he had asked to be removed



             1
             Warden Ray Acevedo, who is not a named defendant, also
     received a copy.

                                           4
1    from transport duty so that he could remain at the UCJ, ready to

2    leave and attend to her in case of emergency.   But soon after the

3    parody was circulated, Singer found himself assigned to

4    transports.   Ferro and another supervisor were responsible for

5    the assignments to prisoner transports at this time.

6               Singer complained about the assignment.   On October 1,

7    2008, Becker called Singer into his office for a meeting.    Singer

8    had heard that Ferro and Becker were "head hunting"2 over the

9    parody, Singer Dep. at 81; Joint App'x at 253, so he concealed a

10   small tape recorder in his breast pocket in order to record the

11   meeting.   During the meeting, Becker told Singer that he would

12   respect Singer's request to be kept off transport duty, but also

13   confronted Singer about the parody, telling him that he knew

14   Singer had created it.

15              The alleged retaliation against Decker and Nollner

16   began about the same time.   Decker asserts that one day shortly

17   after the parody was circulated, he became ill while at work and

18   went to Ferro's office to ask if he could leave for the day.

19   Ferro not only declined the request, but also told Decker that he

20   "heard from other people that [Decker] had something to do with

21   [the parody]," and proposed that he and Decker "deal with [it]

22   the old fashioned way" by "tak[ing] [the matter] outside."   Dep.



          2
             Singer was apparently employing a slang use of the
     expression: "The process of attempting to remove influence and
     power from enemies, especially political enemies."
     http://www.thefreedictionary.com/headhunting (last visited Mar.
     28, 2013).

                                      5
1    of Jonathan Decker, Oct. 4, 2010 ("Decker Dep."), at 63; Joint

2    App'x at 192.

3               Decker and Nollner also allege that their perceived

4    involvement with the parody affected their work assignments.

5    Both Decker and Nollner had been members of the Sheriff's

6    Emergency Response Team ("SERT") -- a unit that dealt with

7    "problem inmates" -- for about a decade.     Dep. of Thomas Nollner,

8    Oct. 4, 2010 ("Nollner Dep.), at 13; Joint App'x at 51; Decker

9    Dep. at 26; Joint App'x at 155.      They allege that in a March 2009

10   SERT meeting, Becker looked directly at Decker and Nollner while

11   telling the group that he "kn[e]w SERT members were in the room

12   when Corporal Singer made the parody,"     Nollner Dep. at 53;

13   Joint App'x at 91, and Ferro then stated that he had "lost a lot

14   of respect" for those members, Nollner Dep. at 58; Joint App'x at

15   96.   Becker then assigned two leadership positions in SERT to

16   members who had less seniority than Decker and Nollner.

17              C.   Procedural History

18              On June 15, 2009, the plaintiffs brought this lawsuit

19   pursuant to 42 U.S.C. § 1983.    The parody, they contended, was

20   speech on a matter of public concern.     They argued that Ferro and

21   Becker's retaliation therefore violated Singer's right to freedom

22   of speech, and Decker and Nollner's right to political

23   association -- all guaranteed by the First Amendment.

24              Soon after the lawsuit was filed, at the urging of

25   Ulster County Undersheriff Frank Faluotico, Warden Acevedo



                                          6
1    removed Decker and Nollner from the SERT Team entirely.      Acevedo

2    testified that he did so because the lawsuit had created

3    "friction" amongst team members.       Dep. of Ray Acevedo, Oct. 27,

4    2010, at 21-22; Joint App'x at 303.      Faluotico testified that

5    "[t]he lawsuit had caused a breakdown in communication which was

6    a breakdown in officer safety."    Dep. of Frank P. Faluotico, Jr.,

7    Oct. 27, 2010, at 16; Joint App'x at 320.      Decker and Nollner

8    assert that this was a pretext, and that their removal was in

9    fact solely in retaliation for their filing of the lawsuit.

10             During discovery, the plaintiffs turned over the tape-

11   recording Singer had made of his October 1, 2008 meeting with

12   Becker regarding the assignment to prisoner transports.      The

13   revelation that Singer had tape-recorded the meeting prompted an

14   investigation by the Office of the Ulster County Sheriff.      On

15   November 2, 2009, disciplinary charges pursuant to New York Civil

16   Service Law § 75 were levied against Singer for alleged violation

17   of prison rules prohibiting recording and other electronic

18   devices on parts of the premises.      Singer was suspended for

19   thirty days without pay pending resolution of the section 75

20   proceedings.   Like Decker and Nollner, Singer asserts that this

21   was all a further pretext for punishing him in retaliation for

22   his filing suit.

23             On December 15, 2009, the plaintiffs amended their

24   complaint to add further allegations of violations of their

25   constitutional rights.   Decker and Nollner alleged that Faluotico

26   violated their First Amendment rights by causing them to be

                                        7
1    removed from the SERT Team after they filed suit.    Am. Compl.

2    ¶ 30; Joint App'x at 18-19.    Singer alleged that Paul J. Van

3    Blarcum (the Ulster County Sheriff) and James R. Hanstein (the

4    Superintendent of the Corrections Division) had caused baseless

5    section 75 proceedings to be filed against him in retaliation for

6    bringing the suit.    Am. Compl. ¶¶ 33-43; Joint App'x at 19-21.

7                On January 14, 2011, the defendants moved for summary

8    judgment.    They argued, among other things, that neither Singer's

9    parody nor the plaintiffs' lawsuit constituted speech on a matter

10   of public concern, as is required for a public employee to

11   sustain a First Amendment claim against his employer.    See

12   Connick v. Myers, 461 U.S. 138, 146 (1983).    The district court

13   agreed, granting summary judgment to the defendants on all

14   claims.   Singer v. Ferro, No. 09-cv-690, 2011 WL 4074177, *10,

15   2011 U.S. Dist. LEXIS 103258, *27 (N.D.N.Y. Sept. 13, 2011).      The

16   court also denied the plaintiffs' motion to supplement their

17   pleadings –- Singer had in the interim been terminated pursuant

18   to the section 75 proceedings, and wanted to add a wrongful

19   discharge claim –- as futile.    Id., 2011 U.S. Dist. LEXIS 103258,

20   at *28.

21               Judgment was entered for the defendants on September

22   13, 2011, and the plaintiffs appealed.




                                       8
1                                  DISCUSSION

2               The plaintiffs appeal from the district court's order

3    granting summary judgment on the plaintiffs' claims, pursuant to

4    42 U.S.C. § 1983, of retaliation against (A) Singer for creating

5    the Absolut Corruption parody, (B) Decker and Nollner for

6    associating with Singer in connection with the parody, and (C)

7    all plaintiffs for the filing of, or speech made in connection

8    with, this action.    The plaintiffs assert that the defendants

9    retaliated against them for conduct that is protected by the

10   First Amendment, and that this retaliation is therefore

11   redressable under section 1983.    "We review the district court's

12   grant of summary judgment de novo, drawing all reasonable

13   inferences and resolving all ambiguities in favor of the non-

14   movant."   Grain Traders, Inc. v. Citibank, N.A., 160 F.3d 97, 100

15   (2d Cir. 1998).

16              A.   The Parody

17              "The mere fact of government employment does not result

18   in the evisceration of an employee's First Amendment rights."

19   Johnson v. Ganim, 342 F.3d 105, 112 (2d Cir. 2003).    But public

20   employment does substantially curtail the right to speak freely

21   in a government workplace.    See Mandell v. County of Suffolk, 316

22   F.3d 368, 382 (2d Cir. 2003) (public employee's free speech

23   rights "are not absolute").    One limitation is that the First

24   Amendment protects a public employee from retaliation by his or

25   her employer for the employee's speech only if "the employee



                                       9
1    sp[eaks] [1] as a citizen [2] on a matter of public concern."

2    Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).

3              A matter of public concern is one that "relat[es] to

4    any matter of political, social, or other concern to the

5    community."   Connick, 461 U.S. at 146.    "Whether an employee's

6    speech addresses a matter of public concern must be determined by

7    the content, form, and context of a given statement, as revealed

8    by the whole record."   Id. at 147-48.    Among the relevant

9    considerations is "whether the speech was calculated to redress

10   personal grievances or whether it had a broader public purpose."

11   Lewis v. Cohen, 165 F.3d 154, 163-64 (2d Cir.), cert. denied, 528

12   U.S. 823 (1999).   The question of whether a public employee spoke

13   as a citizen on a matter of public concern is a question of law.

14   Connick, 461 U.S. at 148 n.7, 150 n.10.     Only if the court

15   concludes that the employee did speak in this manner does it move

16   on to the so-called Pickering balancing, at which stage "a

17   court . . . balances the interests of the employer in providing

18   effective and efficient public services against the employee's

19   First Amendment right to free expression."     Lewis, 165 F.3d at

20   162 (internal citations and quotation marks omitted).

21             Singer contends that his Absolut Corruption parody

22   constitutes speech on a matter of public concern because it

23   addressed alleged corruption in a public institution.     During his

24   deposition, Singer was asked to identify precisely the corruption

25   he meant to reference by showing Superintendent Ebel, Warden

26   Acevedo, Ferro, and Becker in the parody.

                                     10
1              Singer apparently suspected Superintendent Ebel of in

2    some way -- it is not clear how -- favoring Becker and Ferro for

3    a promotion to captain, even though it is undisputed by Singer

4    that another officer was promoted before Becker, and that Ferro

5    was never promoted.   Singer Dep. at 26-27; Joint App’x at 239.

6    Warden Acevedo was corrupt, Singer explained, because he had been

7    arrested sixteen years before for soliciting prostitution.

8    Singer Dep. at 27-28; Joint App’x at 239.

9              As for Ferro, Singer asserted that he was more likely

10   to grant days off to his friends -- resulting in "payroll

11   discrepancies" -- although Singer could identify no specific

12   instances of such a practice.   Singer Dep. at 28, 30-31; Joint

13   App’x at 239-40.   According to Singer, Ferro was also "famous for

14   womanizing."   Singer Dep. at 28; Joint App’x at 239.   And Becker

15   allegedly was corrupt for having received a promotion to head the

16   SERT Team despite his lack of supervisory experience.    Singer

17   Dep. at 32-33; Joint App’x at 240-41.   Finally, Singer testified

18   more generally that his own complaints were ignored, and that

19   certain of his colleagues were favored with respect to

20   assignments and discipline.   Singer Dep. at 40-43; Joint App’x at

21   242-43.

22             We have recognized that governmental corruption is

23   plainly a potential topic of public concern.   See, e.g., Johnson,

24   342 F.3d at 112-13 (concluding that speech "alleg[ing] unlawful

25   and corruptive practices" is on a matter of public concern);



                                     11
1    Lewis, 165 F.3d at 164 (discussing as the "typical" public

2    employee speech case one in which the speech concerns "corruption

3    or public wrongdoing").    But it does not follow that any

4    accusation of an employer practice that is alleged to be

5    "corrupt" qualifies for protection.    In other words, the First

6    Amendment does not protect all private ventings of disgruntled

7    public employees.    Only that "corruption" which constitutes "a

8    subject of general interest . . . to the public," City of San

9    Diego v. Roe, 543 U.S. 77, 84 (2004), is potentially the object

10   of First Amendment solicitude.

11             The "corrupt practices" referred to by Singer's parody

12   are at best of marginal "public interest."    Most –- payroll

13   discrepancies, promotions, discipline –- are employment-related

14   matters, as Singer acknowledged during his deposition.    It is

15   possible that corruption in these respects, if sufficiently

16   egregious or widespread, might implicate the proper stewardship

17   of the public fisc, or the effective operation of important and

18   sensitive public institutions, and thus would constitute matters

19   of public concern.    But we do not think that the public has a

20   substantial interest in minor payroll discrepancies amongst

21   corrections department staff, an isolated promotion to middle

22   management, an arrest sixteen years prior, or rumors of

23   womanizing.   Each of these falls far from the kind of legitimate

24   and understandable concerns that the public would have as to

25   these public institutions and their missions.



                                      12
1              The form and context of Singer's parody, as much as its

2    content, tend to confirm this conclusion.3   Devoid as it was of

3    names or specific allegations, the parody was comprehensible only

4    to others who worked at the prison, and only in the most vague

5    manner.   Whatever the parody's communicative capacity, moreover,

6    Singer shared it with only five fellow employees before

7    discarding it.    He admitted that he had no intention of advancing

8    the matter beyond those five.   True, a purely private

9    communication can, if earnestly conveyed, constitute speech "as a

10   citizen . . . commenting upon matters of public concern."    See

11   Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 414

12   (1979) (internal quotation marks omitted).    But Singer's parody

13   was hardly calculated to advance an important issue in a

14   meaningful way.

15             We by no means imply that Singer's concerns are

16   insignificant.    We realize that the sorts of practices about

17   which he complained, when engaged in by any employer, may have a

18   profound -- and wrongful -- impact on any employee's life,

19   whether or not he is employed by the government.    Nor do we

20   suggest that the defendants' responses were proper or even

21   permissible.   Taking the facts from the record, while drawing all

22   reasonable inferences and resolving all ambiguities in favor of



          3
             When we speak of form, we refer not to Singer's choice of
     parody -- a highly valued means of expression under the
     Constitution, see, e.g., Campbell v. Acuff-Rose Music, Inc., 510
     U.S. 569 (1994); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46
     (1988) -- but to his execution of it.

                                      13
1    the plaintiffs, as we must, there is much about the defendants'

2    alleged behavior in the workplace that warrants criticism.    And

3    we acknowledge that there is no little irony in the fact that

4    Singer's claim suffers because he did not make more serious

5    allegations or circulate his criticism publicly, to the likely

6    greater injury of the defendants.    More serious charges against

7    the defendants, deliberately aimed at a broad public audience,

8    and that presumably would have seriously endangered the

9    defendants and their reputations, might well have been protected

10   by means of a section 1983 lawsuit, while the parody's brand of

11   mere office gossip was not.

12             But under the circumstances of this case, the

13   defendants' alleged overreaction to the parody is not a

14   constitutional issue for this Court to address.   It is a concern

15   of the labor laws and of the legislative and executive branches

16   of the State and of Ulster County.   We, as a federal court, are

17   under instructions not to "constitutionalize the employee

18   grievance," Connick, 461 U.S. at 154, lest we "compromise the

19   proper functioning of government offices," Roe, 543 U.S. at 82.

20   We thus conclude that Singer did not speak "as a citizen upon

21   matters of public concern."   Singh v. City of New York, 524 F.3d

22   361, 372 (2d Cir. 2008) (internal quotation marks omitted).

23




                                     14
1              B.   The Expressive Association

2              The conclusion that Singer's parody was not speech "as

3    a citizen upon matters of public concern" also disposes of Decker

4    and Nollner's expressive association claims.    "[A] public

5    employee bringing a First Amendment freedom of association claim

6    must persuade a court that the associational conduct at issue

7    touches on a matter of public concern."     Cobb v. Pozzi, 363 F.3d

8    89, 102 (2d Cir. 2004).   Decker and Nollner's associational

9    conduct is limited to involvement, or perceived involvement,4 in

10   the creation and circulation of Singer's parody.    Having

11   determined that Singer's creation and largely involuntary

12   dissemination of the parody is not entitled to First Amendment




          4
             There is no suggestion in the record that Decker and
     Nollner actually were involved in the creation or circulation of
     Singer's parody. We have been pointed to no authority binding on
     us -- nor found any ourselves -- as to whether a public employee
     may sustain a First Amendment claim when he or she did not in
     fact engage in the protected activity for which his or her
     employer, however mistakenly, retaliated. Since the result is
     the same in any event, we assume without deciding that Decker and
     Nollner can indeed base their claim on alleged retaliation for
     conduct in which the defendants only mistakenly thought Decker
     and Nollner had engaged, namely their involvement in, or presence
     during, the creation of the parody. We note, however, that
     decisions from other Circuits require that, in the First
     Amendment context, the plaintiff actually engaged, or at least
     intended to engage, in the protected conduct for which he or she
     suffered retaliation. See Wasson v. Sonoma County Junior
     College, 203 F.3d 659, 662-63 (9th Cir. 2000); Jones v. Collins,
     132 F.3d 1048, 1053-54 (5th Cir. 1998); Fogarty v. Boles, 121
     F.3d 886, 889-91 (3d Cir. 1997); Barkoo v. Melby, 901 F.2d 613,
     619 (7th Cir. 1990).

                                     15
1    protection in this precise context,5 and finding nothing in the

2    record entitling Decker and Nollner's association with Singer and

3    the parody to greater solicitude, we are compelled to affirm the

4    district court's grant of summary judgment against their

5    expressive association claims.

6              C.   The Lawsuit

7              The plaintiffs' final claim is that some of the

8    defendants violated their First Amendment rights by retaliating

9    against them for their filing of the initial complaint in this

10   action.   Whether their claim is based on the filing of the

11   complaint itself (and thus brought under the First Amendment's

12   Petition Clause) or is instead based on speech contained within

13   this proceeding (and thus cognizable under the Free Speech

14   Clause) it is subject to the same public concern test we have

15   been discussing.   See Borough of Duryea v. Guarnieri, 131 S. Ct.

16   2488, 2501 (2011) ("As under the Speech Clause, whether an

17   employee's petition relates to a matter of public concern will

18   depend on 'the content, form, and context of [the petition], as

19   revealed by the whole record.'" (quoting Connick, 461 U.S. at

20   147-48, and n.7)).




          5
             It might, of course, be protected in many others. See,
     e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)
     (claim of intentional infliction of emotional distress); New
     Times, Inc. v. Isaacks, 146 S.W.3d 144 (Tex. 2004) (libel claim).

                                      16
1              The plaintiffs argue, as Singer did with respect to his

2    parody, that their lawsuit touches on a matter of public concern

3    because the complaint included allegations of corruption.    As

4    explained above, we conclude that the corruption alleged here is

5    not the sort that is of "general interest to the public."    And

6    even if it were, the thrust of this lawsuit is not towards

7    remediating this corruption, but towards the "entirely personal"

8    relief of monetary damages for what are, at bottom, allegations

9    of wrongful treatment as employees and wrongful termination.      See

10   Ruotolo v. City of New York, 514 F.3d 184, 190 (2d Cir. 2008)

11   (finding lawsuit not on a matter of public concern where

12   plaintiff lodged "essentially personal grievances" and sought

13   relief "for himself alone"); Ezekwo v. N.Y.C. Health & Hosps.

14   Corp., 940 F.2d 775, 781 (2d Cir.) (observing that plaintiff "was

15   not on a mission to protect the public welfare" in finding

16   lawsuit not on a matter of public concern), cert. denied, 502

17   U.S. 1013 (1991).

18             In reaching this conclusion, we express no view as to

19   whether, or in what circumstances, a public employer's respect

20   for its employees' First Amendment interests is a matter of

21   public concern.   Nor do we express a view about whether a lawsuit

22   seeking redress for a First Amendment violation could itself

23   qualify as a matter of public concern even though the underlying

24   First Amendment claim lacks merit.


                                     17
1              We need not consider these situations because this case

2    presents none of them.   The plaintiffs brought this action not in

3    furtherance of "the principle that debate on public issues should

4    be uninhibited, robust, and wide-open," New York Times Co. v.

5    Sullivan, 376 U.S. 254, 270 (1964), but in pursuit of victory in

6    a personal dispute with their supervisors.   It does not follow

7    from the fact that the plaintiffs present their action in First

8    Amendment clothes that they are entitled under these

9    circumstances to First Amendment protection.   Public employees do

10   not enjoy "a right to transform everyday employment disputes into

11   matters for constitutional litigation in the federal courts,"

12   Guarnieri, 131 S. Ct. at 2501; nor, at least in the ordinary

13   case, does retaliation for a plainly unsuccessful attempt at such

14   a transformation itself touch on a matter of public concern

15   solely because the initial suit asserted a First Amendment

16   violation.

17                                  * * *

18             The district court correctly determined that none of

19   the conduct for which the plaintiffs allege they suffered

20   retaliation touched on a matter of public concern, and that the

21   plaintiffs, as public employees, could therefore not sustain

22   First Amendment claims under section 1983 against the defendants.




                                     18
1                               CONCLUSION

2             For the foregoing reasons, the district court's

3   judgment is affirmed.   The parties shall bear their own costs on

4   appeal.




                                    19
APPENDIX




 20
