Opinion
No. 1D20-1376
02-16-2022
Kimberly DANIELS, Appellant, v. Karen RIGGIEN, Appellee.
J. Michael Maida, Deputy General Counsel, for the Florida House of Representatives, Tallahassee; and Audrey H. Moore, General Counsel for the Office of Legislative Services, Florida Legislature, Tallahassee, for Appellant. Marie A. Mattox and Ashley N. Richardson of Marie A. Mattox, P.A., Tallahassee, for Appellee.
J. Michael Maida, Deputy General Counsel, for the Florida House of Representatives, Tallahassee; and Audrey H. Moore, General Counsel for the Office of Legislative Services, Florida Legislature, Tallahassee, for Appellant.
Marie A. Mattox and Ashley N. Richardson of Marie A. Mattox, P.A., Tallahassee, for Appellee.
Winokur, J.
This interlocutory appeal arises from the trial court's denial of a motion to dismiss the First Amendment retaliation action on qualified immunity grounds brought by Karen Riggien against Representative Kimberly Daniels of the Florida House of Representatives in both her individual and official capacities. Riggien, who served as a legislative aid to Representative Daniels for approximately five months, was terminated by Daniels on February 13, 2018, and now seeks damages and other relief under 42 U.S.C. § 1983. For the reasons that follow, we reverse.
I
According to the complaint, Riggien began working for Daniels as her legislative aide in September 2017. During Riggien's time as a legislative aide, Daniels mistreated Riggien by "assigning tasks outside the course and scope of [Riggien's] job description." This included assigning Riggien to take care of personal matters for Daniels while she was on the job, including working on Daniels’ home insurance and helping her son get into Florida State University. Daniels also told Riggien to report to Daniels’ boyfriend, who was not an employee, as if he were her supervisor and to perform whatever tasks he assigned her. He too asked Riggien to take care of personal matters for him, and Daniels regularly allowed him to lead or be present during meetings with Riggien and co-workers. In early 2018, Riggien unsuccessfully complained to Daniels about these assignments that had nothing to do with her duties as a legislative aide. Daniels told Riggien she should resign because their relationship was not working out. But, according to the complaint, Riggien did not resign and eventually complained to the Director of House Administration that Daniels’ actions in requiring Riggien to perform non-governmental tasks were wasting taxpayer money.
Riggien's complaint details an incident, occurring approximately one month later, between Riggien and Daniels’ boyfriend on February 9, 2018, that directly led to Riggien's termination on February 13, 2018. According to the complaint, on February 9, Riggien called out sick from work. At around 10:00 p.m., Daniels called her and asked her to drop off a computer key. Because Riggien was not dressed professionally for work due to being out sick, she asked Daniels to meet her in the parking lot, to which Daniels initially agreed. But when Riggien arrived, Daniels’ boyfriend met her and told her that she must now take the key to the top floor of Daniels’ office building. Because she was not dressed in professional attire, Riggien refused, handed the key to Daniels’ boyfriend, and went home. Daniels immediately called Riggien to tell her to take a week off and start looking for a new job.
Riggien, nonetheless, showed up for work the following week, on February 12. According to the complaint, Daniels’ boyfriend met with her and told her that she would be terminated if she did not apologize to Daniels for refusing to walk to the top of Daniels’ office building to deliver the key on February 9. Believing she had done nothing wrong and did not report to Daniels’ boyfriend, Riggien refused to apologize. Daniels fired Riggien the following day, on February 13, for disobeying her and refusing to apologize after speaking with Daniels’ boyfriend.
Riggien sued Daniels in her individual capacity under 42 U.S.C. § 1983, alleging Daniels retaliated against her for exercising her First Amendment rights to free speech. She also sued Daniels in her official capacity. Daniels moved to dismiss the individual capacity suit based on her qualified immunity and the official capacity suit because it fails to state a section 1983 claim and is otherwise barred by absolute legislative immunity. The trial court denied Daniels’ motion to dismiss. Daniels now appeals.
II
In response to Riggien's section 1983 claim, Daniels raised a qualified immunity defense. The denial of qualified immunity on a motion to dismiss is an appealable interlocutory order that we review de novo. Fla. R. App. P. 9.130(a)(3)(F)(i) ; see Allen v. Frazier , 132 So. 3d 361, 363 (Fla. 1st DCA 2014). In reviewing the complaint, we accept all well-pleaded factual allegations as true and draw all reasonable inferences in Riggien's favor. Newberry Square Fla. Laundromat, LLC v. Jim's Coin Laundry & Dry Cleaners, Inc. , 296 So. 3d 584, 589 (Fla. 1st DCA 2020).
The doctrine of qualified immunity protects government officials engaged in discretionary functions from liability for civil damages "unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the time.’ " Williams v. Aguirre , 965 F.3d 1147, 1156 (11th Cir. 2020) (quoting Dist. of Columbia v. Wesby , ––– U.S. ––––, 138 S. Ct. 577, 589, 199 L.Ed.2d 453 (2018) ). In other words, qualified immunity bars Riggien's suit unless Daniels' "conduct violated a clearly established constitutional right." Pearson v. Callahan , 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Riggien alleged Daniels fired her in retaliation for exercising her clearly established First Amendment right to free speech, when she complained to House Administration that Daniels' was wasting taxpayer funds by assigning Riggien non-governmental tasks to perform. As a public employee, Riggien's speech is constitutionally protected if she "spoke as a citizen on a matter of public concern." Garcetti v. Ceballos , 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). As explained below, Riggien's complaint fails to meet these standards.
"A government employer may not demote or discharge a public employee in retaliation for speech protected by the First Amendment." Alves v. Bd. of Regents of the Univ. Sys. of Ga. , 804 F.3d 1149, 1159 (11th Cir. 2015) (citing Bryson v. City of Waycross , 888 F.2d 1562, 1565 (11th Cir. 1989) ). Indeed, "[t]here is considerable value ... in encouraging, rather than inhibiting, speech by public employees [because] ‘government employees are often in the best position to know what ails the agencies for which they work.’ " Lane v. Franks, 573 U.S. 228, 236, 134 S.Ct. 2369, 189 L.Ed.2d 312 (2014) (quoting Waters v. Churchill , 511 U.S. 661, 674, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) ).
Even so, a public employee's right to freedom of speech is not absolute. The limits on a public employee's freedom of speech reflect the "common sense realization that government offices could not function if every employment decision became a constitutional matter." Connick v. Myers , 461 U.S. 138, 143, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) ; see also id. at 149, 103 S.Ct. 1684 ("To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark—and certainly every criticism directed at a public official—would plant the seed of a constitutional case."). Courts must therefore "strike ‘a balance between the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’ " Alves , 804 F.3d at 1159 (quoting Pickering v. Bd. of Educ. , 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) ) (alteration omitted).
To establish a claim of retaliation for protected speech under the First Amendment, a public employee must show, among other things, that she spoke "(1) as a citizen and (2) on a matter of public concern." Alves , 804 F.3d at 1161 (citing Garcetti , 547 U.S. at 418, 126 S.Ct. 1951 ). When a "public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest," courts will not "review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee behavior." Connick , 461 U.S. at 147, 103 S.Ct. 1684.
The first requirement—that the speech is made as a "citizen" as opposed to a public employee—turns on whether the speech "owes its existence to a public employee's professional responsibilities." Garcetti, 547 U.S. at 421–22, 126 S.Ct. 1951. The phrase "owes its existence to ... must be read narrowly to encompass speech that an employee made in accordance with or in furtherance of the ordinary responsibilities of her employment, not merely speech that concerns the ordinary responsibilities of her employment." Alves , 804 F.3d at 1162. As the Supreme Court explained,
the mere fact that a citizen's speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech. The critical question ... is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties.
Lane , 573 U.S. at 240, 134 S.Ct. 2369. "Practical factors that may be relevant to, but are not dispositive of, the inquiry include the employee's job description, whether the speech occurred at the workplace, and whether the speech concerned the subject matter of the employee's job." Alves , 804 F.3d at 1161.
The second requirement—that the speech address a matter of public concern—"must be determined by 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. 1684. "Speech involves matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public." Lane , 573 U.S. at 241, 134 S.Ct. 2369 (internal citation omitted). In conducting the public concern analysis, courts ask "whether the main thrust of the speech in question is essentially public in nature or private, whether the speech was communicated to the public at large or privately to an individual, and what the speaker's motivation in speaking was." Mitchell v. Hillsborough Cnty ., 468 F.3d 1276, 1283 (11th Cir. 2006) (internal citations omitted).
Here, Riggien alleged numerous instances where Daniels required her to perform personal tasks for Daniels and that she reported these incidents to the Director of House Administration. Because Daniels’ inappropriate demands were supposedly "costing money to the taxpayers," Riggien claims that her report to the Director was on a matter of public concern, made by Riggien as a citizen. We disagree.
First, the nature and thrust of Riggien's complaint indicates that she was speaking to the Director as a public employee—that is, complaining that Daniels required her to do work beyond her proper job duties—and not as a citizen. See Royster v. Robinson , No. 20-14877, 2021 WL 5105810 (11th Cir. Nov. 3, 2021) ("We have determined that—when an employee raises concerns about circumstances that interfere with the employee's ability to perform her job—the employee's speech is made pursuant to her ordinary job responsibilities."). These claims were made to House Administration as a personnel matter, not to report public wrongdoing. As such, the complaint is an "attempt to constitutionalize [an] employee grievance," Connick , 461 U.S. at 154, 103 S.Ct. 1684, meaning the report was not entitled to First Amendment protection that would overcome Daniels’ immunity.
Second, as for the suggestion that her complaint was a matter of public concern because she claimed that Daniels’ demands were "costing money to the taxpayers," we agree with the court in Boyce v. Andrew , 510 F.3d 1333 (11th Cir. 2007) : "A ‘public employee may not transform a personal grievance into a matter of public concern by invoking a supposed popular interest in the way public institutions are run.’ " Id. at 1344 (quoting Ferrara v. Mills , 781 F.2d 1508, 1516 (11th Cir. 1986) ); see also Alves , 804 F.3d at 1167 (holding that the issue of public concern raised in the employee complaint "was only incident to voicing their personal concerns"); Boyce , 510 F.3d at 1344–45 (holding that while public employees’ complaint was intermingled with issues of child safety and agency mismanagement, it was not meant to address matters of public concern from the perspective of a citizen); White Plains Towing Corp. v. Patterson , 991 F.2d 1049, 1059 (2d Cir. 1993) (recognizing that "[e]ven as to an issue that could arguably be viewed as a matter of public concern, if the employee has raised the issue solely in order to further his own employment interest, his First Amendment right to comment on that issue is entitled to little weight"). Because Riggien failed to allege a First Amendment violation, her individual capacity claim against Daniels must be dismissed on qualified immunity grounds.
III
As to Riggien's claim against Daniels in her official capacity, the parties correctly agree that Riggien cannot seek damages against Daniels in her official capacity. See Will v. Mich. Dep't of State Police , 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (holding that "neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983"). Thus, insofar as Riggien seeks damages against Daniels in her official capacity, the trial court erred by not dismissing this claim. See Witmer v. Univ. of Fla. Police Dep't , 610 So. 2d 87, 88 (Fla. 1st DCA 1992) (affirming order granting motion to dismiss "to the extent it dismisses the section 1983 action against the state and its officers sued in their official capacity").
IV
For the reasons set forth above, we reverse the denial of Daniels’ motion to dismiss and remand to the trial court with directions to dismiss Riggien's complaint.
Lewis and Ray, JJ., concur.