                                                         [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                            Nov. 9, 2009
                               No. 08-16778               THOMAS K. KAHN
                           Non-Argument Calendar              CLERK
                         ________________________

                     D. C. Docket No. 08-00394-CV-A-N

MARY K. LYON,


                                                           Plaintiff-Appellant,

                                    versus

WILLIAM ROBERT ASHURST, individually
and in his capacity as Section Engineer
and Supervisor of the Right-of-Way Division,
Alabama Department of Transportation,
JOHN THOMAS HALL, individually and in
his capacity as a co-employee in the
Alabama Department of Transportation
Right-of-Way Division,
RANDALL A. ESTES, individually and in his
capacity as Section Supervisor of William
Robert Ashurst in the Alabama Department
of Transportation Right-of-Way Division,
D. JOE MCINNES, individually and in his
capacity as Transportation Director of the
Alabama Department of Transportation,


                                                        Defendants-Appellees,
JACKIE GRAHAM, individually and in her
capacity as Personnel Director for the
Alabama Department of Transportation,

                                                                            Defendant.


                            ________________________

                    Appeal from the United States District Court
                        for the Middle District of Alabama
                          _________________________

                                 (November 9, 2009)

Before EDMONDSON, BLACK and KRAVITCH, Circuit Judges.

PER CURIAM:

      Plaintiff-Appellant Mary K. Lyon appeals the dismissal of her employment-

related complaint against Appellees Joe McInnes, Director of the Alabama

Department of Transportation (“ALDOT”), and ALDOT employees Joe William

Ashurst, John Thomas Hall, and Randall Estes. No reversible error has been

shown; we affirm.

      According to the complaint, Plaintiff began work as an Administrative

Support Assistant to Appellee Ashurst in February 2005. On 22 December 2005,

an incident occurred between Plaintiff and her co-worker, Appellee Hall, about

which Plaintiff filed a grievance for violence in the workplace. In response to

Plaintiff’s filing, Ashurst advised Plaintiff that she was out of line and needed to

                                           2
“chill”. Plaintiff’s grievance was not the first filed against Hall. Linda Lee,

another ALDOT employee, filed a grievance against Hall; and Plaintiff was

subpoenaed to attend the hearing on Lee’s grievance. Plaintiff claims that Ashurst

advised her not to attend the Lee hearing; and although Plaintiff feared Ashurst

would retaliate against her, she attended the 31 January 2006 hearing as required

by the subpoena. Shortly thereafter, Plaintiff claims Ashurst falsely accused her of

making a mistake on his leave slip. In early March 2006, Ashurst issued Plaintiff a

written reprimand for a collection of minor infractions. On 27 March 2006,

Plaintiff turned in a notice of resignation in which she stated she was resigning for

health reasons.

      On 20 April 2006, Ashurst issued a memo requesting that Appellee Estes,

ALDOT Division Engineer, place a “Do Not Re-hire” in Plaintiff’s personnel file

because of her “disruptive, argumentative, and confrontational behavior.”

Performance appraisal forms also were included in Plaintiff’s personnel file to the

effect that she should not be rehired because of disruptive behavioral issues.

Unaware of these forms counseling against rehire, Plaintiff sought -- and was

denied -- other jobs within ALDOT, the State of Alabama, and other state agencies.

      Plaintiff’s complaint set out a plethora of claims against Appellees in their

individual and official capacities based on alleged retaliation for the grievance she



                                           3
filed against Hall and for her participation in the Lee hearing. As explained in a

thorough 24-page opinion, the district court determined that all claims were due to

be dismissed. Plaintiff argues on appeal that the district court erred when it

granted Appellees’s Rule 12(b)(6) motion to dismiss (1) her 42 U.S.C. §1983 claim

for violation of her First Amendment rights; (2) her 42 U.S.C. §1985(2) claim for

obstruction of justice and gender-based animus discrimination; and (3) her state

law claim of libel.

Plaintiff’s Section 1983 First Amendment Claim

      Plaintiff claims error in the district court’s determination that Plaintiff’s

speech related to the grievances she and her coworker filed against Hall was not

protected speech under the First Amendment. To be constitutionally protected, a

public employee’s speech must, among other things, be “fairly characterized as

constituting speech on a matter of public concern.” Connick v. Myers, 103 S.Ct.

1684, 1690 (1983). If a public 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.” Id. And while public

employees are not stripped of all First Amendment rights, the First Amendment



                                           4
“does not empower [public employees] to constitutionalize the employee

grievance.” Garcetti v. Ceballos, 126 S.Ct. 1951, 1959 (2006) (internal quotation

and citation omitted). Because an employee’s speech often will touch at least to

some degree upon private and public concerns, see Morgan v. Ford, 6 F.3d 750,

754 (11th Cir. 1993), we look to the content, form, and context of the speech to

discern its “main thrust.” Id. at 754-55. Whether the public employee’s speech

may fairly be characterized as addressing a matter of public concern is a question

of law. Gonzalez v. Lee County Hous. Auth., 161 F.3d 1290, 1297 (11 th Cir.

1997).

         As set out in the complaint, Plaintiff’s speech was in the context of an

administrative proceeding, was personal to her and another employee, involved no

public forum, and -- other than in the most abstract sense -- involved no matter of

public concern. Citing our decision in Maggio v. Sipple, 211 F.3d 1346 (11 th Cir.

2000), in which we concluded an employee’s testimony at another employee’s

grievance proceeding was not protected under the First Amendment, the district

court concluded that Plaintiff alleged no First Amendment violation. Our review

of the content, form and context of Plaintiff’s speech, confirms that Plaintiff has

alleged no speech on a matter of public concern; her First Amendment claim was

due to be dismissed.



                                             5
Plaintiff’s Section 1985(2) Claim

       The second part of section 1985(2),* prohibits two or more persons from

conspiring:

               for the purpose of impeding, hindering, obstructing, or
               defeating, in any manner, the due course of justice ...
               with intent to deny to any citizen the equal protection of
               the laws, or to injure him or his property for lawfully
               enforcing, or attempting to enforce, the right of any
               person, or class of persons, to the equal protection of the
               laws;

42 U.S.C. § 1985(2). According to Plaintiff, by placing a “Do Not Re-hire”

classification and poor performance appraisal in her file (or approving the

placement), Defendants conspired to interfere with her civil rights in violation of

section 1985(2).

       To state a claim under section 1985(2), Plaintiff must plead a private

conspiracy with a racial or otherwise class-based invidiously discriminatory

motivation. See Mason v. Village of El Portal, 240 F.3d 1337, 1340 (11 th Cir.

2001) (failure to establish invidiously discriminatory racial animus behind

conspiratorial decision defeated section 1985(2) claim). The district court

dismissed Plaintiff’s original complaint because it failed to allege that



       *
        The first part of section 1985(2) addresses conspiracies affecting proceedings in a court
of the United States; it has no application to a state administrative proceeding. See Seeley v.
Brotherhood of Painters, 308 F.2d 52, 58 (5th Cir. 1962).

                                                6
Defendants’s purported conspiratorial acts were motivated by a racial or class-

based animus. So, too, Plaintiff’s amended complaint was dismissed because it

failed to allege or support an inference that the claimed conspiracy as a whole was

motivated by class-based animus.

      We agree. Plaintiff’s grounds for her entitlement to relief were no more than

“labels and conclusions, and a formulaic recitation of the elements of a cause of

action.” See Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007).

Even accepting all the allegations in Plaintiff’s amended complaint as true, only

speculation can fill the gaps in the complaint. The complaint alleges that both

Plaintiff and the other grievant are members of a protected class -- female -- and

that Defendant Hall acted with invidiously discriminatory motivation; but no facts

are pleaded to tie that class-based motivation to the acts of the other Defendants

who (unlike Hall) actually participated in or approved the placement of the

negative material in Plaintiff’s employment file.

Plaintiff’s State Law Libel Claims

      Count 3 of Plaintiff’s complaint set out a defamation claim premised on

Defendants’s placement of a “mental ward” sign in the workplace. The district

court concluded -- and Plaintiff concedes -- that claim was barred by the statute of

limitations. In a Motion to Amend or Vacate Order, Plaintiff sought to have the



                                          7
district court consider her defamation claim as premised on the negative materials

placed in her employment file. These materials were not included in the

defamation count but were otherwise in the complaint. The district court refused to

do so: if Plaintiff wished to assert new defamation claims, the appropriate

procedure was to file a motion to amend the complaint.

       Dismissal of the defamation count as pleaded is due to be affirmed: the

statute of limitations was dispositive. The district court is not tasked with

responsibility for sifting through a complaint in search of other facts that might

suggest an alternative basis to support a particular cause of action. The defamation

claim Plaintiff now advances was no part of the defamation count of the complaint;

and Plaintiff never sought to amend the complaint to add this alternative

defamation count. The district court committed no error.

       We have reviewed and find without merit other arguments advanced by

Plaintiff.

       AFFIRMED.




                                           8
