                                                                              F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                               SEP 19 2000
                                 TENTH CIRCUIT
                            __________________________                    PATRICK FISHER
                                                                                    Clerk

 MELISSA TORRES; CLIFFORD TORRES,

          Plaintiffs-Appellants,

 v.                                                           No. 98-1412
                                                                (D. Colo.)
 PUEBLO BOARD OF COUNTY                                   (D.Ct. No. 97-S-1613)
 COMMISSIONERS,

          Defendant-Appellee.
                        ____________________________

                             ORDER AND JUDGMENT *


Before BRORBY, McKAY, and BRISCOE, Circuit Judges.



      Clifford and Melissa Torres, husband and wife, brought suit alleging

violations of 42 U.S.C. § 1983 and the Colorado Constitution.       1
                                                                        They contend

Mrs. Torres was terminated from her employment as a benefits specialist with the

County of Pueblo in retaliation for their union organizing activities and Mrs.

      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

      1
        Defendants removed the action to the United States District Court for the District
of Colorado based on federal question jurisdiction.
Torres’ marital association with Mr. Torres – rights protected by the First

Amendment. The Torreses appeal (1) the district court order dismissing Mr.

Torres’ First Amendment claims and Mrs. Torres’ claim against defendant

Jeanette O’Quin, and (2) the district court order granting the Board of County

Commissioners (“the Board”) summary judgment against Mrs. Torres’ First

Amendment claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm

both orders.



                                   BACKGROUND

      Mrs. Torres began working for Pueblo County in January 1991. When

terminated in October 1996, Mrs. Torres was the benefits specialist, responsible

for processing health insurance bills and administering the life insurance and

other benefit programs for county employees. Her supervisor was defendant

Jeanette O’Quin, the Director of the Department of Human Resources.



      Mr. Torres has been a Pueblo County employee since July 1991. He works

in the Facilities Department as a maintenance worker.   Id. Mr. Torres was the

principal organizer in unionizing that department in 1996, with encouragement

and assistance from Mrs. Torres. The Torreses allege Mrs. Torres was terminated

in retaliation for her and Mr. Torres’ union organizing activities. Defendants


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counter that Mrs. Torres’ employment was terminated for “11 occurrences of

falsifying telephone logs for long distance calls and 17 occurrences of placing

unauthorized personal long distance calls.”



                                      ANALYSIS

Rule 12(b)(6) Dismissal of Mr. Torres’ Claims

       The district court dismissed Mr. Torres from this case in light of the

Torreses’ concession their complaint failed to allege a valid claim against either

defendant for the disciplinary action against Mr. Torres.   2
                                                                In their motion for

reconsideration before the district court, and now on appeal, the Torreses argue

the district court misconstrued the complaint as well as the intended scope of

their concession. The Torreses maintain that Mr. Torres pleaded and has not

conceded a First Amendment claim       vis-à-vis his marital association with Mrs.

Torres and the financial injury he suffered as a result of her termination in

retaliation for his union organizing activities.




       2
         The Board approved a six-day suspension of Mr. Torres for allegedly taking
forms from the Arts Center budget office without permission from his supervisor, for not
following the proper chain of command “by discussing Capital request forms with [the]
County Budget office,” and for failing “to properly call off work.” The Board ultimately
rescinded Mr. Torres’ suspension for lack of a factual basis.


                                            -3-
       We review the legal sufficiency of a complaint under Fed. R. Civ. P.

12(b)(6) de novo.   Sutton v. Utah State Sch. for the Deaf & Blind   , 173 F.3d 1226,

1236 (10th Cir. 1999.) “A 12(b)(6) motion should not be granted unless it

appears beyond doubt that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief.”     Id. at 1236 (quotation marks and

citations omitted). We must accept all well-pleaded allegations in the complaint

as true and view them in the light most favorable to the Torreses.    Id. While we

must accept reasonable inferences derived from well-pleaded facts, we need not

accept mere conclusions characterizing pleaded facts or “unwarranted inferences

drawn from the facts or footless conclusions of law predicated upon them.”

Bryson v. City of Edmond , 905 F.2d 1386, 1390 (10th Cir. 1990) (quotation

marks and citation omitted).



       The Torreses unequivocally conceded “the complaint does not allege a

valid claim against either Defendant for the disciplinary action against Clifford

Torres.” Moreover, the law is well settled Mr. Torres cannot utilize § 1983 as a

vehicle for derivative liability stemming from alleged discrimination directed at

Mrs. Torres. Trujillo v. Board of County Comm’rs       , 768 F.2d 1186, 1187 (10th

Cir. 1985); cf. Horstkoetter v. Department of Pub. Safety     , 159 F.3d 1265, 1279-

80 (10th Cir. 1998) (stating wives of highway patrol troopers ordered to remove


                                            -4-
political signs from private residence yards had standing only to raise the same

claims as their husbands, not independent claims). Consequently, the only

cognizable claim Mr. Torres could assert under the circumstances would be one

of marital association,   see Trujillo , 768 F.2d at 1188-90; cf. Adler v. Pataki , 185

F.3d 35, 44 (2d Cir. 1999) (holding public employee could maintain claim based

on allegation that he was fired because of his wife’s employment discrimination

lawsuit against state, in violation of his First Amendment right of intimate

association) – a claim we believe Mr. Torres fully articulated for the first time on

appeal. Nevertheless, even liberally construing the Torreses’ complaint to

vaguely assert a marital association claim, we hold Mr. Torres utterly failed to

allege facts sufficient to support such claim. In this circuit “an allegation of

intent to interfere with a particular relationship protected by the freedom of

intimate association is required to state a claim under section 1983.”      Trujillo ,

768 F.2d at 1190; see also Bryson , 905 F.2d at 1394 (“Nowhere in the complaint

is there an allegation that any claimed acts or omissions, however intentional,

occurred with the specific intent on the part of the defendants to deprive the

plaintiffs of their rights of association with the victims.”). The Torreses’

complaint does not allege intent on the part of defendants to deprive them of

their protected marital relationship. Therefore, the district court properly




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dismissed Mr. Torres’ claims.    3




Mrs. Torres’ First Amendment Claims

       The district court granted summary judgment to the Board on Mrs. Torres’

First Amendment claims, applying the four-step analysis derived from             Pickering

v. Board of Educ. , 391 U.S. 563 (1968), to her free association as well as her free

speech claims. The district court concluded (1) neither Mr. nor Mrs. Torres’

speech involved matters of public concern; (2) the defendants’ interests in

confidentiality and the propriety of Human Resources Department employees’

conduct outweighed Mrs. Torres’ alleged First Amendment interest in

participating in her husband’s union organizing activities; (3) Mrs. Torres failed



       3
         Mr. Torres argues if we uphold the dismissal of his claims, the district court
should have allowed him to amend his complaint. We disagree. “After a responsive
pleading, a party must seek leave of the court to amend by filing a motion.” Calderon v.
Kansas Dep’t of Social & Rehabilitation Serv., 181 F.3d 1180, 1185 (10th Cir. 1999)
(citing Fed. R. Civ. P. 15(a)). Mr. Torres’ statement at the end of his Motion for
Reconsideration seeking “[i]n the alternative ... leave to amend the complaint to plead
with greater specificity the causal relationship between the Plaintiffs’ protected activities
and [Ms. O’Quin’s] motive for causing Melissa Torres to be terminated from her
employment,” stated no grounds, let alone any particular grounds, for the request, and
made no reference to a claim for interference with Mr. Torres’ right of marital
association. Accordingly, that statement did not constitute a motion as contemplated by
Fed. R. Civ. P. 7(b)(1). Id. at 1186. Because a motion for leave to amend was never
properly before it, we hold the district court did not abuse its discretion in failing to
address the Torreses’ request for leave to cure deficiencies in their complaint. See id. at
1187.


                                             -6-
to show her speech was a substantial or motivating factor for her discharge; and

(4) the Board sufficiently demonstrated it would have taken the same action

against Mrs. Torres even in the absence of her union organizing activities.



       The Torreses argue the district court misapplied the      Pickering test,

overlooked Mrs. Torres’ marital association claim, and failed to allow a jury to

weigh the evidence and make appropriate credibility assessments.



              We review the grant of summary judgment de novo, using the
       same standard as did the district court. In First Amendment cases,
       an appellate court has an obligation to make an independent
       examination of the whole record in order to make sure that the
       judgment does not constitute a forbidden intrusion on the field of
       free expression. Accordingly, summary judgment is appropriately
       granted if the pleadings, depositions, answers to interrogatories, and
       admissions on file, together with the affidavits, if any, show that
       there is no genuine issue as to any material fact and that the moving
       party is entitled to judgment as a matter of law. We view the
       evidence in the light most favorable to the non-moving party.

Barker v. City of Del City , 215 F.3d 1134, 1137(10th Cir. 2000) (quotation marks

and citations omitted). Applying this standard, we affirm, albeit for slightly

different reasons than those articulated by the district court in granting summary

judgment. Colorado Flying Academy, Inc. v. United States          , 724 F.2d 871, 880

(10th Cir. 1984) (explaining this court may affirm district court’s judgment on

grounds not relied on by district court if supported by the record),     cert. denied ,


                                            -7-
476 U.S. 482 (1986).



       Associational Rights

       Mrs. Torres asserts claims of retaliation in violation of her First

Amendment right of free association, citing specifically her right to participate in

union-related activities and her right to marital association. It is true the

Constitution protects an individual’s right to associate both “expressively” and

“intimately.” See City of Dallas v. Stanglin , 490 U.S. 19, 23-24 (1989). It is

also true courts are split as to whether the     Pickering analysis applies to freedom

of association claims.    Balton v. City of Milwaukee , 133 F.3d 1036, 1039-40 (7th

Cir. 1998); Gregorich v. Lund , 54 F.3d 410, 414 n.4 (7th Cir. 1995);      see also

Schalk v. Gallemore , 906 F.2d 491, 498 n.6 (10th Cir. 1990) (applying public

concern test to identical free speech/free association claims in context of this

case, but recognizing that the public concern test “may be an inapt tool of

analysis” in other public employee/free association contexts). We need not

decide that issue here, however, because Mrs. Torres’ political association claim

as it pertains to her “union activity”   4
                                             suffers a more fundamental flaw. Namely,


       4
          In mid-March 1996, Mrs. Torres suggested that Mr. Torres form a union of
Facilities Department employees. In May 1996, Mrs. Torres called the local office of the
American Federation of State, County and Municipal Employees (“the Union”) to inquire
about the procedures for forming a union and relayed the information she received to her
husband. Mrs. Torres later attended a union rally. On August 7 and 13, Mrs. Torres went

                                               -8-
Mrs. Torres was not organizing or joining a union on her own behalf. She simply

was assisting her husband’s efforts. Indeed, Mrs. Torres claims no membership

in or personal affiliation with the Union, except insofar as she is married to Mr.

Torres.



       We agree Mrs. Torres has a right not to be discriminated against because of

her husband’s association with the Union. That right, however, is better asserted

in the context of a marital association or free-speech claim.      See Adler , 185 F.3d

at 44. Any “association” Mrs. Torres has with Mr. Torres’ union is simply too

attenuated to warrant the protection she seeks.      Cf. Stanglin , 490 U.S. at 25

(ruling the Constitution does not protect a “generalized right of ‘social

association’”); Board of Directors of Rotary Int’l v. Rotary Club of Duarte        , 481

U.S. 537, 545-50 (1987) (discussing the scope of associational rights protected

by the First Amendment vis-à-vis membership in Rotary International). We

decline the apparent invitation to consider any union-related activity per se

deserving of First Amendment/free association protection.         On the record

presented here, we hold Mrs. Torres has failed to identify a union-related




to the Clerk and Recorder’s office, during office hours, to listen to tapes of public Board
meetings to determine if the Board had discussed the Union’s request for an election.
Here again, she simply intended to pass the information along to her husband.


                                            -9-
associational right protected under the First Amendment.



         With regard to the alleged violation of Mrs. Torres’ right to marital

association, Mrs. Torres argues that she need prove nothing more than she was

terminated because of her marital relationship with Mr. Torres, and that she has

presented sufficient evidence of animosity toward Mr. Torres’ union activities to

create an inference she was terminated due to her marital relationship with her

husband. Such is not the law of this circuit. As noted above, a requisite element

of a marital association claim is the allegation and proof of a specific intent to

deprive the plaintiffs of their marital relationship.   See Trujillo , 768 F.2d at 1190.

As further noted, the Torreses made no such allegation. Nor did Mrs. Torres

provide any evidence on summary judgment to demonstrate the defendants

intended to interfere with her marriage. Her marital association claim therefore

fails.



         Free Speech Rights

         To the extent Mrs. Torres might avoid the flaws in her free association

claims by characterizing her conduct as an exercise of free speech, the     Pickering




                                             -10-
analysis clearly controls.   5
                                 See Barker , 215 F.3d at 1137 (“Where a government

employer takes adverse action because of an employee’s exercise of his or her

right of free speech, we apply the balancing test from       Pickering v. Board of

Educ .” (quotation marks and citations omitted).). Applying         Pickering , we agree

with the district court that Mrs. Torres’ speech did not involve a matter of public

concern. If the speech in question does not address a matter of public concern,

there is no First Amendment violation and we need not examine the reasons for

Mrs. Torres’ termination.        See Connick v. Myers , 461 U.S. 138, 146 (1983).



       Mrs. Torres points to the following activities as constitutionally protected

expression: “recommending (advocating) to her husband that he contact a union,

gathering information on how to start a union, gathering information from public

records (tapes) about why a union election had not been scheduled, and

expressing support for the union to her supervisor.” She argues her interest in

unionizing the Facilities Department was broader than a narrow self-interest



       5
           The Pickering analysis prescribes four inquiries: (1) does the speech in question
involve a matter of public concern; (2) if so, does the employee’s interest in the
expression outweigh the government’s interest in regulating the speech of its employees
so that it can carry on an efficient and effective workplace; (3) was the speech a
substantial factor driving the challenged governmental action; and (4) if so, can the
employer show it would have taken the same employment action against the employee
even in the absence of the protected speech. Barker, 215 F.3d at 1137.


                                             -11-
because she did not work in that department. She further claims she was

concerned for all the employees in that department, not just her husband. The

real crux of Mrs. Torres’ argument is her belief union organizing activity or

expression, by definition, touches on matters of public concern, and therefore

deserves First Amendment protection.



       We are unwilling to hold that an employee’s speech or activity touches on

a matter of public concern merely because it is union-related.      See Boals v. Gray ,

775 F.2d 686, 693 (6th Cir. 1985). Instead, we apply well-established precedent

defining “matter[s] of public concern” as those matters which can be “fairly

considered as relating to any matter of political, social, or other concern to the

community.” Connick , 461 U.S. at 146. “To be protected speech, the expression

must sufficiently inform the issue as to be helpful to the public in evaluating the

conduct of government.”     Withiam v. Baptist Health Care of Okla., Inc.    , 98 F.3d

581, 583 (10th Cir. 1996) (quotation marks and citation omitted). Stated

differently, “speech that seeks to expose improper operations of the government

or questions the integrity of government officials clearly concerns vital public

interests.” Curtis v. Oklahoma City Pub. Sch. Bd. of Educ.       , 147 F.3d 1200, 1212

(10th Cir. 1998) (quotation marks, citations and alteration omitted). “Speech

concerning individual personnel disputes or internal policies will typically not


                                           -12-
involve public concern.”    Id. (citation omitted). The content of the speech is the

crux of our public concern inquiry.   See Withiam , 98 F.3d at 583.



      Considering, as we must, the content, form, motive and context of Mrs.

Torres’ communications, as revealed by the whole record,     see David v. City &

County of Denver , 101 F.3d 1344, 1355 (10th Cir. 1996),    cert. denied , 522 U.S.

858 (1997), we conclude the “speech” she claims is protected did not inform

public debate concerning government conduct or otherwise address matters of

political or social concern to the community. As the district court aptly noted,

Mr. and Mrs. Torreses’ concerns and union-related speech pertained specifically

to the management and working conditions in the Facilities Department. Their

union organizing effort was motivated by their desire, as county employees, to

change Mr. Torres’ working conditions. Mr. and Mrs. Torres made no allegation

and presented no evidence to suggest the Facilities Department was guilty of

wrongdoing or malfeasance, or was neglecting its responsibilities to the public.

Accordingly, Mrs. Torres’ First Amendment/free speech claim fails.



Qualified Immunity

      The district court determined Ms. O’Quin enjoyed qualified immunity from

the Torreses’ claims because, applying a heightened pleading standard, the


                                          -13-
Torreses failed to allege facts sufficient to “sustain a conclusion that Defendant

O’Quin violated clearly established statutory or constitutional rights of which a

reasonable person would have known.” As the district court noted, the complaint

alleged only that defendant O’Quin “requested approval from the Board of

County Commissioners to terminate” Mrs. Torres and “gave notice to” Mrs.

Torres regarding her termination.



       The Torreses argue (1) the heightened pleading standard “cannot be

squared with the notice pleading requirement in [Fed.] R. Civ. P. 8(a) and

Supreme Court precedent, especially     Crawford-El v. Britton , 523 U.S. 574

(1998)”; (2) the complaint alleged facts sufficient to establish a causal

connection between Ms. O’Quin’s conduct and the alleged discrimination; and

(3) the district court alternatively should have provided the Torreses an

opportunity to amend their complaint.



       Ultimately, to overcome Ms. O’Quin’s claim of qualified immunity the

Torreses must establish (1) Ms. O’Quin’s actions violated a federal constitutional

or statutory right, and (2) the right violated was clearly established at the time of

the violation.   See Ramirez v. Department of Corrections   , ___ F.3d ___, 2000

WL 1140251, *1 (10th Cir. Aug. 11, 2000). As we held above, Mrs. Torres’


                                          -14-
allegations of constitutional violations do not survive summary judgment.

Because Ms. O’Quin did not commit a constitutional violation, she could not be

denied qualified immunity. It is therefore unnecessary for us to further review

the propriety of the district court’s ruling concerning qualified immunity for Ms.

O’Quin, or further address the Torreses’ arguments regarding pleading

requirements. See County of Sacramento v. Lewis     , 523 U.S. 833, 841-42 n.5

(1998) (“the better approach to resolving cases in which the defense of qualified

immunity is raised is to determine first whether the plaintiff has alleged a

deprivation of a constitutional right at all”).



      For all the foregoing reasons, the Torreses’ First Amendment claims fail

against both defendants as a matter of law.



      AFFIRMED .



                                         Entered by the Court:

                                         WADE BRORBY
                                         United States Circuit Judge




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