PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 97-4270
Non-Argument Calendar
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D. C. Docket No. 94-2197-CV-WDF
ANAIS A. BADIA,
Plaintiff-Appellee,
versus
CITY OF MIAMI,
a municipal corporation,
Defendant,
WALLY LEE, individually
and as DIRECTOR OF
DEPARTMENT OF PUBLIC WORKS,
Defendant-Appellant.
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Appeal from the United States District Court for the
Southern District of Florida
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(January 30, 1998)
Before TJOFLAT and COX, Circuit Judges, and RONEY, Senior circuit
Judge.
PER CURIAM:
In her amended complaint plaintiff Anais A. Badia ("Badia"),
a former City of Miami Department of Public Works employee, claims
that defendants the City of Miami and Wally Lee ("Lee"), former
Director of the Department of Public Works, discriminated against
her on the basis of gender, race, and national origin, in violation
of 42 U.S.C. § 1983 and Title VII of the Civil Rights Act of 1964,
as amended by the Civil Rights Act of 1991, 42 U.S.C. §§ 2000e to
2000e-17. Badia also asserted a
42 U.S.C. § 1983 claim that
defendants violated her First Amendment free speech rights by
terminating her employment and severance pay benefits in
retaliation for filing an EEOC charge of discrimination and
commencing this action. Defendant Lee, sued individually, moved
for summary judgment on the ground of qualified immunity. The
district court denied the motion. Lee appeals. Because qualified
immunity shields Lee from Badia's § 1983 First Amendment claim but
not from Badia's discrimination claims, we affirm in part and
reverse in part.
Although the district court's decision regarding the merits of
Badia's claims is not final, the court's denial of summary judgment
on the basis of qualified immunity is an appealable interlocutory
order. See Mitchell v. Forsyth,
472 U.S. 511, 530 (1985); Riley v.
Wainwright,
810 F.2d 1006, 1007 (11th Cir. 1986). We accept as
true all facts the district court assumed when it denied summary
judgment on qualified immunity grounds. See Walker v. Schwalbe,
112 F.3d 1127, 1131 (11th Cir. 1997), petition for cert. filed,
66
U.S.L.W. 3325 (U.S. Oct. 29, 1997) (No. 97-740); Cooper v. Smith,
89 F.3d 761, 762 (11th Cir. 1996).
In order to defeat Lee's claimed entitlement to qualified
immunity, Badia was required to proffer evidence which, viewed in
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the light most favorable to her, demonstrates that Lee violated
clearly established statutory or constitutional rights of which a
reasonable government official would have been aware. See Tindal v.
Montgomery County Comm'n,
32 F.3d 1535, 1539 (11th Cir. 1994);
Dartland v. Metropolitan Dade County ,
866 F.2d 1321, 1322 (11th
Cir. 1989). Construing the evidence in the light most favorable to
Badia, the district court concluded that a genuine issue exists as
to whether discrimination motivated Lee's treatment of Badia and
the elimination of Badia's position in 1993. Such discrimination
would violate clearly established rights of which a reasonable
government official would have known. See Nicholson v. Georgia
Dep't of Human Resources,
918 F.2d 145, 148 (11th Cir. 1990).
Therefore, qualified immunity does not entitle Lee to summary
judgment on Badia's discrimination claims.
Badia's First Amendment claim turns on whether the “speech”
was a matter of public concern. If only of purely personal
concern, the speech is not protected by the First Amendment. We
look to the "content, form, and context . . . ," Connick v. Myers,
461 U.S. 138, 147 (1983), of Badia's speech to assess whether it
"may be fairly characterized as constituting speech on a matter of
public concern." Tindal,
32 F.3d at 1539 (citation and internal
quotation marks omitted); see also
id. (delineating four-part test
to determine whether an employer's action constitutes illicit
retaliation for protected speech); Connick,
461 U.S. at 148 n.7
("The inquiry into the protected status of speech is one of law,
not fact."). If it is unclear whether Badia's complaints were of
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the kind held to involve a matter of public concern, then Lee's
alleged actions did not violate clearly established First Amendment
rights and he is entitled to qualified immunity. See Tindal, 32
F.3d at 1539 (citing Connick,
461 U.S. at 147).
In her EEOC charge and original federal complaint, Badia
discussed only harm that she personally suffered and sought damages
only to remedy that personal harm. Generally, such speech which
exposes personally suffered discrimination for personal benefit is
not entitled to First Amendment protection. See Tindal,
32 F.3d at
1539 (citing Morgan v. Ford,
6 F.3d 750, 754-55 (11th Cir. 1993),
cert. denied,
512 U.S. 1221 (1994)).
In an attempt to distinguish her speech from private
grievances seeking redress for personal harm, Badia contends that
her complaints deserve First Amendment protection because she filed
a claim with the EEOC and a suit in federal court. Badia notes that
this Court has held that an employee’s federal court testimony in
support of another plaintiff co-worker’s discrimination suit
constitutes speech on a matter of public concern and merits First
Amendment protection. See Tindal,
32 F.3d at 1539-40. This Court,
however, has not decided whether EEOC discrimination charges and
federal court discrimination complaints which seek redress only for
a plaintiff's personal injuries constitute "speech on a matter of
public concern" by the plaintiff solely by virtue of the public
fora in which the complaints are presented. See Mott v. Ledbetter,
806 F. Supp. 991, 992 (N.D. Ga. 1992) (“Neither the Supreme Court
nor the Eleventh Circuit Court of Appeals ha[s] directly addressed
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the extent to which a formal employment discrimination complaint
constitutes speech on a matter of public concern.”).
There is a split of authority among the circuit courts of
appeals which have decided this issue. Compare Greenwood v. Ross,
778 F.2d 448, 457 (8th Cir. 1985) ("Appellant's filing of an EEOC
charge and a civil rights lawsuit are activities protected by the
first amendment."), with Rice v. Ohio Dep't of Transp., 887 F.2d
716, 720-21 (6th Cir. 1989) (because it related only to personal
employment dispute, plaintiff's discrimination charge was not
entitled to First Amendment protection), vacated on other grounds,
497 U.S. 1001 (1990), and Yatvin v. Madison Metro. Sch. Dist.,
840
F.2d 412, 420 (7th Cir. 1988). (The Eight Circuit’s opinion in
“Greenwood is . . . inconsistent with our decision . . . ; we
reject its per se rule.”). See also Mott v. Ledbetter,
806 F.
Supp. 991, 992 (N.D. Ga. 1992) (“[T]his Court . . . conclude[s]
that the law in this circuit does not favor a per se rule
establishing any employment discrimination complaint as protected
speech. . . . [S]uch a complaint is protected speech only when the
employee is speaking on a matter of legitimate public concern
rather than merely complaining of a personal employment dispute.”).
Therefore, it is not clearly established in this Circuit that
an EEOC charge and a federal court complaint involving an otherwise
purely personal matter are speech on a matter of public concern
that are entitled to First Amendment protection. Lee's alleged
actions did not violate clearly established First Amendment rights,
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and qualified immunity protects Lee from Badia's
42 U.S.C. § 1983
First Amendment claim.
Thus, we reverse in part and affirm in part. Defendant Wally
Lee, in his individual capacity, is entitled to summary judgment on
the basis of qualified immunity as to plaintiff Badia’s
42 U.S.C.
§ 1983 First Amendment claim. As to all other claims, we affirm
the denial of summary judgment on the basis of qualified immunity.
This appeal does not involve any other ground for summary judgment.
AFFIRMED IN PART and REVERSED IN PART.
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