Singer v. Ferro, No. 11-3919 (2d Cir. 2013)
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Plaintiffs appealed the district court's grant of summary judgment to defendants on plaintiffs' First Amendment retaliation claims brought pursuant to 42 U.S.C. 1983. Plaintiffs alleged that defendants, who are supervisors or officials at the Ulster County, New York Sheriff's Office and the county jail, took adverse employment actions against them in retaliation for a parody created by one of the plaintiffs that suggested corruption among jail officials, and subsequently filing a lawsuit based upon this alleged retaliation. The court held that the district court correctly determined that none of the conduct for which plaintiffs alleged they suffered retaliation touched on a matter of public concern, and that plaintiffs as public employees, could therefore not sustain First Amendment claims under section 1983 against defendants. Accordingly, the court affirmed the judgment.
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11-3919-cv Singer v. Ferro 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2012 4 (Argued: August 20, 2012 Decided: April 1, 2013) 5 Docket No. 11-3919-cv 6 ------------------------------------- 7 KENT SINGER, THOMAS NOLLNER, JONATHAN DECKER, 8 Plaintiffs-Appellants, 9 - v - 10 11 12 13 14 15 CHRISTOPHER C. FERRO, sued in his individual capacity, JON BECKER, sued in his individual capacity, PAUL J. VAN BLARCUM, Ulster County Sheriff, sued in his individual capacity, JAMES R. HANSTEIN, Superintendent of Corrections, sued in his individual capacity, FRANK FALUOTICO, sued in his individual capacity, COUNTY OF ULSTER, 16 Defendants-Appellees. 17 ------------------------------------- 18 Before: NEWMAN, CABRANES, and SACK, Circuit Judges. 19 Appeal by the plaintiffs from a judgment of the United 20 States District Court for the Northern District of New York 21 (David N. Hurd, Judge) granting summary judgment to the 22 defendants on the plaintiffs' First Amendment claims asserted 23 pursuant to 42 U.S.C. § 1983. 24 times public employees, alleged that the defendants, government 25 officials, retaliated against them for exercising their First 26 Amendment rights of freedom of speech and of political 27 association. 28 could not sustain their claims because the conduct for which they The plaintiffs, at all relevant The district court concluded that the plaintiffs 1 assert the defendants retaliated did not implicate a matter of 2 public concern. 3 affirm. We agree with the district court, and therefore 4 5 6 STEPHEN BERGSTEIN, Bergstein & Ullrich, LLP, Chester, New York, for PlaintiffsAppellants. 7 8 9 EARL T. REDDING, Roemer Wallens Gold & Mineaux LLP, Albany, New York, for Defendants-Appellees. 10 SACK, Circuit Judge: 11 Plaintiffs Kent Singer, Thomas Nollner, and Jonathan 12 Decker appeal from a judgment of the United States District Court 13 for the Northern District of New York (David N. Hurd, Judge) 14 granting summary judgment to the defendants on the plaintiffs' 15 First Amendment retaliation claims brought pursuant to 42 U.S.C. 16 § 1983. 17 supervisors or officials at the Ulster County, New York Sheriff's 18 Office and the county jail, took adverse employment actions 19 against them in retaliation for a parody created by Singer that 20 suggested corruption among jail officials, and for subsequently 21 filing a lawsuit based upon this alleged retaliation. 22 agree with the district court that neither Singer's parody nor 23 the plaintiffs' lawsuit were what the law considers to be, for 24 these purposes, speech "[1] as a citizen [2] on a matter of 25 public concern," Garcetti v. Ceballos, 547 U.S. 410, 418 (2006), 26 we affirm. The plaintiffs allege that the defendants, who are 2 Because we BACKGROUND 1 2 This lawsuit arises out of events that took place 3 during the autumn of 2008 at the Ulster County Jail (the "UCJ") 4 in Ulster County, New York. 5 Nollner were employed at the UCJ, Singer as a corporal, and 6 Decker and Nollner as corrections officers. At the time, Singer, Decker, and 7 A. 8 During a shift in mid-September 2008, Singer created a 9 The Parody parody on his work computer. A copy of it is annexed to this 10 opinion. 11 advertisements, which typically display an Absolut Vodka bottle 12 adorned or transformed in some thematic fashion, and beneath the 13 bottle a two-word phrase beginning with the word "Absolut." 14 Singer's version displayed in or on the bottle pictures of four 15 UCJ officials -- two of whom are defendants Becker and Ferro -- 16 and the caption read, "Absolut Corruption." 17 original; Singer got the idea from a similar "Absolut Corruption" 18 parody that he had found on the Internet. 19 previous version and then overlaid it with images of his targets. 20 It was a spoof on the familiar Absolut Vodka The parody was not He printed out the At his deposition, Singer described his parody as "a 21 political statement" that he "thought . . . was funny." Dep. of 22 Kent Singer, Oct. 25, 2010 ("Singer Dep."), at 19; Joint App'x at 23 237. 24 corrupt practices among jail officials involving preferential 25 hiring and staffing, selective enforcement in matters of employee He meant the parody to refer to what he considered to be 3 1 discipline, and other miscellaneous forms of favoritism. 2 asked whether "the reasons [he regarded the persons portrayed as 3 corrupt] are generally internal reasons," he replied "Yes," 4 stating that his complaints concerned both his "specific 5 employment within the jail" and matters of employment "in 6 general." 7 When Singer Dep. at 39; Joint App'x 242. After he created the parody, Singer showed it to five 8 fellow employees. Among them were Nollner and Decker. Singer 9 then discarded the parody in a trash can in an employee common 10 area. He testified at his deposition that he never intended to 11 show it to anyone else. 12 when another employee retrieved the parody from the trash. 13 Eventually, it made its way to the people depicted on the bottle, 14 including defendants Ferro and Becker.1 His intentions were thwarted, however, 15 B. The Alleged Retaliation 16 Ferro and Becker, who were both UCJ supervisors, 17 thought that all three of the plaintiffs were involved in 18 creating the parody. 19 authority to retaliate against the plaintiffs. 20 They allegedly used their supervisory The first incident took place in late September 2008. 21 Since April of that year, Singer had not been required to 22 participate in "prisoner transports." 23 request: His mother had been ill, and he had asked to be removed 1 This was at Singer's Warden Ray Acevedo, who is not a named defendant, also received a copy. 4 1 from transport duty so that he could remain at the UCJ, ready to 2 leave and attend to her in case of emergency. 3 parody was circulated, Singer found himself assigned to 4 transports. 5 the assignments to prisoner transports at this time. 6 But soon after the Ferro and another supervisor were responsible for Singer complained about the assignment. On October 1, 7 2008, Becker called Singer into his office for a meeting. 8 had heard that Ferro and Becker were "head hunting"2 over the 9 parody, Singer Dep. at 81; Joint App'x at 253, so he concealed a 10 small tape recorder in his breast pocket in order to record the 11 meeting. 12 respect Singer's request to be kept off transport duty, but also 13 confronted Singer about the parody, telling him that he knew 14 Singer had created it. 15 Singer During the meeting, Becker told Singer that he would The alleged retaliation against Decker and Nollner 16 began about the same time. Decker asserts that one day shortly 17 after the parody was circulated, he became ill while at work and 18 went to Ferro's office to ask if he could leave for the day. 19 Ferro not only declined the request, but also told Decker that he 20 "heard from other people that [Decker] had something to do with 21 [the parody]," and proposed that he and Decker "deal with [it] 22 the old fashioned way" by "tak[ing] [the matter] outside." 2 Dep. Singer was apparently employing a slang use of the expression: "The process of attempting to remove influence and power from enemies, especially political enemies." http://www.thefreedictionary.com/headhunting (last visited Mar. 28, 2013). 5 1 of Jonathan Decker, Oct. 4, 2010 ("Decker Dep."), at 63; Joint 2 App'x at 192. 3 Decker and Nollner also allege that their perceived 4 involvement with the parody affected their work assignments. 5 Both Decker and Nollner had been members of the Sheriff's 6 Emergency Response Team ("SERT") -- a unit that dealt with 7 "problem inmates" -- for about a decade. 8 Oct. 4, 2010 ("Nollner Dep.), at 13; Joint App'x at 51; Decker 9 Dep. at 26; Joint App'x at 155. Dep. of Thomas Nollner, They allege that in a March 2009 10 SERT meeting, Becker looked directly at Decker and Nollner while 11 telling the group that he "kn[e]w SERT members were in the room 12 when Corporal Singer made the parody," 13 Joint App'x at 91, and Ferro then stated that he had "lost a lot 14 of respect" for those members, Nollner Dep. at 58; Joint App'x at 15 96. 16 members who had less seniority than Decker and Nollner. Nollner Dep. at 53; Becker then assigned two leadership positions in SERT to 17 C. Procedural History 18 On June 15, 2009, the plaintiffs brought this lawsuit 19 pursuant to 42 U.S.C. § 1983. 20 speech on a matter of public concern. 21 Becker's retaliation therefore violated Singer's right to freedom 22 of speech, and Decker and Nollner's right to political 23 association -- all guaranteed by the First Amendment. 24 25 The parody, they contended, was They argued that Ferro and Soon after the lawsuit was filed, at the urging of Ulster County Undersheriff Frank Faluotico, Warden Acevedo 6 1 removed Decker and Nollner from the SERT Team entirely. 2 testified that he did so because the lawsuit had created 3 "friction" amongst team members. 4 2010, at 21-22; Joint App'x at 303. 5 "[t]he lawsuit had caused a breakdown in communication which was 6 a breakdown in officer safety." 7 Oct. 27, 2010, at 16; Joint App'x at 320. 8 assert that this was a pretext, and that their removal was in 9 fact solely in retaliation for their filing of the lawsuit. 10 Acevedo Dep. of Ray Acevedo, Oct. 27, Faluotico testified that Dep. of Frank P. Faluotico, Jr., Decker and Nollner During discovery, the plaintiffs turned over the tape- 11 recording Singer had made of his October 1, 2008 meeting with 12 Becker regarding the assignment to prisoner transports. 13 revelation that Singer had tape-recorded the meeting prompted an 14 investigation by the Office of the Ulster County Sheriff. 15 November 2, 2009, disciplinary charges pursuant to New York Civil 16 Service Law § 75 were levied against Singer for alleged violation 17 of prison rules prohibiting recording and other electronic 18 devices on parts of the premises. 19 thirty days without pay pending resolution of the section 75 20 proceedings. 21 was all a further pretext for punishing him in retaliation for 22 his filing suit. 23 The On Singer was suspended for Like Decker and Nollner, Singer asserts that this On December 15, 2009, the plaintiffs amended their 24 complaint to add further allegations of violations of their 25 constitutional rights. 26 violated their First Amendment rights by causing them to be Decker and Nollner alleged that Faluotico 7 1 removed from the SERT Team after they filed suit. 2 ¶ 30; Joint App'x at 18-19. 3 Blarcum (the Ulster County Sheriff) and James R. Hanstein (the 4 Superintendent of the Corrections Division) had caused baseless 5 section 75 proceedings to be filed against him in retaliation for 6 bringing the suit. 7 Am. Compl. Singer alleged that Paul J. Van Am. Compl. ¶¶ 33-43; Joint App'x at 19-21. On January 14, 2011, the defendants moved for summary 8 judgment. They argued, among other things, that neither Singer's 9 parody nor the plaintiffs' lawsuit constituted speech on a matter 10 of public concern, as is required for a public employee to 11 sustain a First Amendment claim against his employer. 12 Connick v. Myers, 461 U.S. 138, 146 (1983). 13 agreed, granting summary judgment to the defendants on all 14 claims. 15 2011 U.S. Dist. LEXIS 103258, *27 (N.D.N.Y. Sept. 13, 2011). 16 court also denied the plaintiffs' motion to supplement their 17 pleadings - Singer had in the interim been terminated pursuant 18 to the section 75 proceedings, and wanted to add a wrongful 19 discharge claim - as futile. 20 at *28. 21 22 See The district court Singer v. Ferro, No. 09-cv-690, 2011 WL 4074177, *10, The Id., 2011 U.S. Dist. LEXIS 103258, Judgment was entered for the defendants on September 13, 2011, and the plaintiffs appealed. 8 DISCUSSION 1 2 The plaintiffs appeal from the district court's order 3 granting summary judgment on the plaintiffs' claims, pursuant to 4 42 U.S.C. § 1983, of retaliation against (A) Singer for creating 5 the Absolut Corruption parody, (B) Decker and Nollner for 6 associating with Singer in connection with the parody, and (C) 7 all plaintiffs for the filing of, or speech made in connection 8 with, this action. 9 retaliated against them for conduct that is protected by the The plaintiffs assert that the defendants 10 First Amendment, and that this retaliation is therefore 11 redressable under section 1983. 12 grant of summary judgment de novo, drawing all reasonable 13 inferences and resolving all ambiguities in favor of the non- 14 movant." 15 (2d Cir. 1998). "We review the district court's Grain Traders, Inc. v. Citibank, N.A., 160 F.3d 97, 100 16 A. The Parody 17 "The mere fact of government employment does not result 18 in the evisceration of an employee's First Amendment rights." 19 Johnson v. Ganim, 342 F.3d 105, 112 (2d Cir. 2003). 20 employment does substantially curtail the right to speak freely 21 in a government workplace. 22 F.3d 368, 382 (2d Cir. 2003) (public employee's free speech 23 rights "are not absolute"). 24 Amendment protects a public employee from retaliation by his or 25 her employer for the employee's speech only if "the employee But public See Mandell v. County of Suffolk, 316 One limitation is that the First 9 1 sp[eaks] [1] as a citizen [2] on a matter of public concern." 2 Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). 3 A matter of public concern is one that "relat[es] to 4 any matter of political, social, or other concern to the 5 community." 6 speech addresses a matter of public concern must be determined by 7 the content, form, and context of a given statement, as revealed 8 by the whole record." 9 considerations is "whether the speech was calculated to redress 10 personal grievances or whether it had a broader public purpose." 11 Lewis v. Cohen, 165 F.3d 154, 163-64 (2d Cir.), cert. denied, 528 12 U.S. 823 (1999). 13 as a citizen on a matter of public concern is a question of law. 14 Connick, 461 U.S. at 148 n.7, 150 n.10. 15 concludes that the employee did speak in this manner does it move 16 on to the so-called Pickering balancing, at which stage "a 17 court . . . balances the interests of the employer in providing 18 effective and efficient public services against the employee's 19 First Amendment right to free expression." 20 162 (internal citations and quotation marks omitted). 21 Connick, 461 U.S. at 146. Id. at 147-48. "Whether an employee's Among the relevant The question of whether a public employee spoke Only if the court Lewis, 165 F.3d at Singer contends that his Absolut Corruption parody 22 constitutes speech on a matter of public concern because it 23 addressed alleged corruption in a public institution. 24 deposition, Singer was asked to identify precisely the corruption 25 he meant to reference by showing Superintendent Ebel, Warden 26 Acevedo, Ferro, and Becker in the parody. 10 During his 1 Singer apparently suspected Superintendent Ebel of in 2 some way -- it is not clear how -- favoring Becker and Ferro for 3 a promotion to captain, even though it is undisputed by Singer 4 that another officer was promoted before Becker, and that Ferro 5 was never promoted. 6 Warden Acevedo was corrupt, Singer explained, because he had been 7 arrested sixteen years before for soliciting prostitution. 8 Singer Dep. at 27-28; Joint App x at 239. 9 Singer Dep. at 26-27; Joint App x at 239. As for Ferro, Singer asserted that he was more likely 10 to grant days off to his friends -- resulting in "payroll 11 discrepancies" -- although Singer could identify no specific 12 instances of such a practice. 13 App x at 239-40. 14 womanizing." 15 allegedly was corrupt for having received a promotion to head the 16 SERT Team despite his lack of supervisory experience. 17 Dep. at 32-33; Joint App x at 240-41. 18 more generally that his own complaints were ignored, and that 19 certain of his colleagues were favored with respect to 20 assignments and discipline. 21 242-43. 22 Singer Dep. at 28, 30-31; Joint According to Singer, Ferro was also "famous for Singer Dep. at 28; Joint App x at 239. And Becker Singer Finally, Singer testified Singer Dep. at 40-43; Joint App x at We have recognized that governmental corruption is 23 plainly a potential topic of public concern. 24 342 F.3d at 112-13 (concluding that speech "alleg[ing] unlawful 25 and corruptive practices" is on a matter of public concern); 11 See, e.g., Johnson, 1 Lewis, 165 F.3d at 164 (discussing as the "typical" public 2 employee speech case one in which the speech concerns "corruption 3 or public wrongdoing"). 4 accusation of an employer practice that is alleged to be 5 "corrupt" qualifies for protection. 6 Amendment does not protect all private ventings of disgruntled 7 public employees. 8 subject of general interest . . . to the public," City of San 9 Diego v. Roe, 543 U.S. 77, 84 (2004), is potentially the object 10 11 But it does not follow that any In other words, the First Only that "corruption" which constitutes "a of First Amendment solicitude. The "corrupt practices" referred to by Singer's parody 12 are at best of marginal "public interest." Most - payroll 13 discrepancies, promotions, discipline - are employment-related 14 matters, as Singer acknowledged during his deposition. 15 possible that corruption in these respects, if sufficiently 16 egregious or widespread, might implicate the proper stewardship 17 of the public fisc, or the effective operation of important and 18 sensitive public institutions, and thus would constitute matters 19 of public concern. 20 substantial interest in minor payroll discrepancies amongst 21 corrections department staff, an isolated promotion to middle 22 management, an arrest sixteen years prior, or rumors of 23 womanizing. 24 and understandable concerns that the public would have as to 25 these public institutions and their missions. It is But we do not think that the public has a Each of these falls far from the kind of legitimate 12 1 The form and context of Singer's parody, as much as its 2 content, tend to confirm this conclusion.3 3 names or specific allegations, the parody was comprehensible only 4 to others who worked at the prison, and only in the most vague 5 manner. 6 Singer shared it with only five fellow employees before 7 discarding it. 8 the matter beyond those five. 9 communication can, if earnestly conveyed, constitute speech "as a Devoid as it was of Whatever the parody's communicative capacity, moreover, He admitted that he had no intention of advancing True, a purely private 10 citizen . . . commenting upon matters of public concern." 11 Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 414 12 (1979) (internal quotation marks omitted). 13 was hardly calculated to advance an important issue in a 14 meaningful way. 15 See But Singer's parody We by no means imply that Singer's concerns are 16 insignificant. We realize that the sorts of practices about 17 which he complained, when engaged in by any employer, may have a 18 profound -- and wrongful -- impact on any employee's life, 19 whether or not he is employed by the government. 20 suggest that the defendants' responses were proper or even 21 permissible. 22 reasonable inferences and resolving all ambiguities in favor of Nor do we Taking the facts from the record, while drawing all 3 When we speak of form, we refer not to Singer's choice of parody -- a highly valued means of expression under the Constitution, see, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) -- but to his execution of it. 13 1 the plaintiffs, as we must, there is much about the defendants' 2 alleged behavior in the workplace that warrants criticism. 3 we acknowledge that there is no little irony in the fact that 4 Singer's claim suffers because he did not make more serious 5 allegations or circulate his criticism publicly, to the likely 6 greater injury of the defendants. 7 the defendants, deliberately aimed at a broad public audience, 8 and that presumably would have seriously endangered the 9 defendants and their reputations, might well have been protected 10 by means of a section 1983 lawsuit, while the parody's brand of 11 mere office gossip was not. And More serious charges against 12 But under the circumstances of this case, the 13 defendants' alleged overreaction to the parody is not a 14 constitutional issue for this Court to address. 15 of the labor laws and of the legislative and executive branches 16 of the State and of Ulster County. 17 under instructions not to "constitutionalize the employee 18 grievance," Connick, 461 U.S. at 154, lest we "compromise the 19 proper functioning of government offices," Roe, 543 U.S. at 82. 20 We thus conclude that Singer did not speak "as a citizen upon 21 matters of public concern." 22 361, 372 (2d Cir. 2008) (internal quotation marks omitted). It is a concern We, as a federal court, are Singh v. City of New York, 524 F.3d 23 14 1 B. The Expressive Association 2 The conclusion that Singer's parody was not speech "as 3 a citizen upon matters of public concern" also disposes of Decker 4 and Nollner's expressive association claims. 5 employee bringing a First Amendment freedom of association claim 6 must persuade a court that the associational conduct at issue 7 touches on a matter of public concern." 8 89, 102 (2d Cir. 2004). 9 conduct is limited to involvement, or perceived involvement,4 in "[A] public Cobb v. Pozzi, 363 F.3d Decker and Nollner's associational 10 the creation and circulation of Singer's parody. 11 determined that Singer's creation and largely involuntary 12 dissemination of the parody is not entitled to First Amendment 4 Having There is no suggestion in the record that Decker and Nollner actually were involved in the creation or circulation of Singer's parody. We have been pointed to no authority binding on us -- nor found any ourselves -- as to whether a public employee may sustain a First Amendment claim when he or she did not in fact engage in the protected activity for which his or her employer, however mistakenly, retaliated. Since the result is the same in any event, we assume without deciding that Decker and Nollner can indeed base their claim on alleged retaliation for conduct in which the defendants only mistakenly thought Decker and Nollner had engaged, namely their involvement in, or presence during, the creation of the parody. We note, however, that decisions from other Circuits require that, in the First Amendment context, the plaintiff actually engaged, or at least intended to engage, in the protected conduct for which he or she suffered retaliation. See Wasson v. Sonoma County Junior College, 203 F.3d 659, 662-63 (9th Cir. 2000); Jones v. Collins, 132 F.3d 1048, 1053-54 (5th Cir. 1998); Fogarty v. Boles, 121 F.3d 886, 889-91 (3d Cir. 1997); Barkoo v. Melby, 901 F.2d 613, 619 (7th Cir. 1990). 15 1 protection in this precise context,5 and finding nothing in the 2 record entitling Decker and Nollner's association with Singer and 3 the parody to greater solicitude, we are compelled to affirm the 4 district court's grant of summary judgment against their 5 expressive association claims. 6 C. The Lawsuit 7 The plaintiffs' final claim is that some of the 8 defendants violated their First Amendment rights by retaliating 9 against them for their filing of the initial complaint in this 10 action. Whether their claim is based on the filing of the 11 complaint itself (and thus brought under the First Amendment's 12 Petition Clause) or is instead based on speech contained within 13 this proceeding (and thus cognizable under the Free Speech 14 Clause) it is subject to the same public concern test we have 15 been discussing. 16 2488, 2501 (2011) ("As under the Speech Clause, whether an 17 employee's petition relates to a matter of public concern will 18 depend on 'the content, form, and context of [the petition], as 19 revealed by the whole record.'" (quoting Connick, 461 U.S. at 20 147-48, and n.7)). See Borough of Duryea v. Guarnieri, 131 S. Ct. 5 It might, of course, be protected in many others. See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (claim of intentional infliction of emotional distress); New Times, Inc. v. Isaacks, 146 S.W.3d 144 (Tex. 2004) (libel claim). 16 1 The plaintiffs argue, as Singer did with respect to his 2 parody, that their lawsuit touches on a matter of public concern 3 because the complaint included allegations of corruption. 4 explained above, we conclude that the corruption alleged here is 5 not the sort that is of "general interest to the public." 6 even if it were, the thrust of this lawsuit is not towards 7 remediating this corruption, but towards the "entirely personal" 8 relief of monetary damages for what are, at bottom, allegations 9 of wrongful treatment as employees and wrongful termination. 10 Ruotolo v. City of New York, 514 F.3d 184, 190 (2d Cir. 2008) 11 (finding lawsuit not on a matter of public concern where 12 plaintiff lodged "essentially personal grievances" and sought 13 relief "for himself alone"); Ezekwo v. N.Y.C. Health & Hosps. 14 Corp., 940 F.2d 775, 781 (2d Cir.) (observing that plaintiff "was 15 not on a mission to protect the public welfare" in finding 16 lawsuit not on a matter of public concern), cert. denied, 502 17 U.S. 1013 (1991). 18 As And See In reaching this conclusion, we express no view as to 19 whether, or in what circumstances, a public employer's respect 20 for its employees' First Amendment interests is a matter of 21 public concern. 22 seeking redress for a First Amendment violation could itself 23 qualify as a matter of public concern even though the underlying 24 First Amendment claim lacks merit. Nor do we express a view about whether a lawsuit 17 1 We need not consider these situations because this case 2 presents none of them. The plaintiffs brought this action not in 3 furtherance of "the principle that debate on public issues should 4 be uninhibited, robust, and wide-open," New York Times Co. v. 5 Sullivan, 376 U.S. 254, 270 (1964), but in pursuit of victory in 6 a personal dispute with their supervisors. 7 from the fact that the plaintiffs present their action in First 8 Amendment clothes that they are entitled under these 9 circumstances to First Amendment protection. It does not follow Public employees do 10 not enjoy "a right to transform everyday employment disputes into 11 matters for constitutional litigation in the federal courts," 12 Guarnieri, 131 S. Ct. at 2501; nor, at least in the ordinary 13 case, does retaliation for a plainly unsuccessful attempt at such 14 a transformation itself touch on a matter of public concern 15 solely because the initial suit asserted a First Amendment 16 violation. 17 18 * * * The district court correctly determined that none of 19 the conduct for which the plaintiffs allege they suffered 20 retaliation touched on a matter of public concern, and that the 21 plaintiffs, as public employees, could therefore not sustain 22 First Amendment claims under section 1983 against the defendants. 18 CONCLUSION 1 2 For the foregoing reasons, the district court's 3 judgment is affirmed. 4 The parties shall bear their own costs on appeal. 19 APPENDIX 20
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