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Defendant's Attorney: 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,

Description:

Tallahassee, FL - First Amendment Lawyer represented Appellant with a First Amendment retaliation action claim.

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
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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,
138 S. Ct. 577, 589 (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 (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-
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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
(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 for 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 (2014) (quoting
Waters v. Churchill, 511 U.S. 661, 674 (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 (1983);
see also id. at 149 (“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 (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).
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
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personnel decision taken by a public agency allegedly in reaction
to the employee behavior.” Connick, 461 U.S. at 147.
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. 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. “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. “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 (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.”
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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, 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
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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 (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”).

Outcome: 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

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