# Badia v. City of Miami

> Court of Appeals for the Eleventh Circuit · January 30, 1998

URL: https://www.frixlaw.com/law-library/cases/72528

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** January 30, 1998
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

_____________

No. 97-4270
Non-Argument Calendar
_____________

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.

____________
Appeal from the United States District Court for the
Southern District of Florida
____________

(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

2
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

4
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,

5
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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