the revocation of her access to security areas and the withdrawal of her hologram. The Customs Service director responded that notice had been given to British Airways, rather than to plaintiff, as British Airways was the violator of record. He also denied her request for a hearing, explaining that no hearing was necessary because plaintiff's hologram had been returned to her and the liquidated damages claim had been paid in full. Plaintiff's later requests for a hearing were also denied.
Plaintiff asserts that British Airways punished her more severely than it punishes male employees whose holograms have been suspended or revoked by the Customs Service. She also alleges that British Airways has engaged in a pattern and practice of discrimination against women, which "included but was not limited to the sexual harassment or sexual discrimination against the following women: [naming seven women]. Said pattern and practice of discrimination also includes the dissemination within the workforce of material sexually derogatory to women . . . ." No details are provided in support of plaintiff's general allegations of sexual harassment and discrimination, except that plaintiff attached to the complaint one joke with sexual content which was distributed via E-mail; although the printout of the joke includes an address list, neither plaintiff nor any of the individual defendants are listed as a sender or recipient of the joke.
The Bivens Claim Against Anton
Against defendant Anton, plaintiff raises, first, a claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971) ("Bivens claim"). That claim asserts that Anton "falsely accused plaintiff of taking actions in violation of . . . Customs regulations in retaliation for plaintiff complaining to [Customs officials] about defendant Anton's intimidating, threatening and harassing behavior in violation of her First Amendment rights . . . ." Anton contends that this Bivens claim should be dismissed because plaintiff has failed to allege the violation of a constitutional right. He argues that plaintiff's complaints about his behavior do not constitute protected speech under the First Amendment; therefore, to the extent that he retaliated against plaintiff for those complaints,
he did not violate her First Amendment rights.
Anton further argues that he is entitled to qualified immunity with respect to the Bivens claim because plaintiff has not alleged the violation of a clearly established constitutional right. Under the doctrine of qualified immunity, Anton is "shielded from liability for civil damages insofar as [his] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). For purposes of qualified immunity, a right is "clearly established" if it is defined with reasonable clarity; if the Supreme Court or the Court of Appeals for the Second Circuit has affirmed its existence; or if a reasonable defendant would understand from existing law that his acts were unlawful. Cook v. Sheldon, 41 F.3d 73, 78 (2d Cir. 1994) (quoting Jeffries v. Harleston, 21 F.3d 1238, 1248 (2d Cir.), vacated on other grounds and remanded, 513 U.S. 996, 130 L. Ed. 2d 411, 115 S. Ct. 502 (1994)). Moreover, "the right [Anton] is alleged to have violated must have been 'clearly established' in a . . . particularized, and hence . . . relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). In other words, the court must consider the operation of qualified immunity in the context of "the circumstances with which [Anton] was confronted." Id.
A threshold inquiry in analyzing an assertion of qualified immunity is whether the plaintiff has alleged a constitutional violation in the first place: "[A] necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is 'clearly established' at the time defendant acted is . . . whether the plaintiff has asserted a violation of a constitutional right at all." Siegert v. Gilley, 500 U.S. 226, 232, 114 L. Ed. 2d 277, 111 S. Ct. 1789 (1991). Plaintiff alleges that Anton violated her First Amendment rights by falsely testifying against her in retaliation for her complaining to Anton's supervisors about his "harassing behavior" at the time that he asked her to turn over the passport of the Bahrainian prince.
In considering whether plaintiff's complaints about Anton constitute protected speech under the First Amendment, it is significant that the injury plaintiff ultimately complains of is the withdrawal, "based on . . . Anton's false allegations," of her hologram and her access to security areas, for where a public authority has withdrawn a license, contract, or privileges in retaliation for the exercise of speech by the licensee or recipient, a First Amendment claim may be stated. See, e.g., Bd. of County Comm. Wabaunsee County, Kansas v. Umbehr, 518 U.S. 668, 135 L. Ed. 2d 843, 116 S. Ct. 2342 (1996) (independent contractor complained that contract was not renewed in retaliation for criticism of Board); White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1058 (2d Cir.), cert. denied, 510 U.S. 865, 126 L. Ed. 2d 144, 114 S. Ct. 185 (1993) (towing company complained that assignment of exclusive right to towing referral had been revoked in retaliation for complaints against state); Havekost v. United States Dep't of Navy, 925 F.2d 316 (9th Cir. 1991) (licensee complained that United States Department of Navy officer revoked license in retaliation for licensee's circulation of a petition). In such cases, the appropriate constitutional analysis is the analysis governing the speech rights of government employees. See Umbehr, 116 S. Ct. at 2349; White Plains Towing, 991 F.2d at 1057-60; Havekost, 925 F.2d at 318.
Under that analysis, plaintiff must show, "as an initial matter, that [her] speech may be fairly characterized as constituting speech on a matter of public concern." White Plains Towing, 991 F.2d at 1058 (internal quotations omitted); see Umbehr, 116 S. Ct. at 2352. That is because "the determination whether a public employer has properly discharged an employee for engaging in speech requires '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.'" Rankin v. McPherson, 483 U.S. 378, 384, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987) (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968)).
Once plaintiff has established that her speech involves a matter of public concern, she must next establish that the speech was at least a significant or motivating factor in the adverse employment action. White Plains Towing, 991 F.2d at 1058. If she fails to establish either the public concern or the motivating factor element, her claim fails. Id. at 1059; see Connick v. Myers, 461 U.S. 138, 146-147, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983) ("If [the implicated speech] cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for [the employee's] discharge."). Moreover, Anton is entitled to qualified immunity with respect to the Bivens claim unless plaintiff's statements are of "such clear public concern that it would not be reasonable for [Anton] to conclude that it was lawful to discharge or otherwise retaliate against [her]." Piesco v. City of New York, 933 F.2d 1149, 1161 (2d Cir.), cert. denied, 502 U.S. 921, 116 L. Ed. 2d 272, 112 S. Ct. 331 (1991).
In this case, the complaint alleges that plaintiff complained to Anton's superiors of his "harassing behavior" at the time that he demanded the passport of the Bahrainian prince. Reading the complaint as a whole, and drawing all inferences in favor of plaintiff, plaintiff's complaints presumably included the assertion that on that occasion, Anton threatened to revoke plaintiff's hologram, and that he "physically intimidated" and "harassed" her.
Thus, plaintiff complained of a single incident of untoward behavior by a single official. Such speech does not implicate the kind of weighty, civic issues that have been characterized by the Court of Appeals for the Second Circuit as clearly involving a matter of public concern. Plaintiff did not, for example, complain to Customs Service supervisors of widespread corruption or fraudulent practices throughout the Customs Service. See Rookard v. Health and Hosp. Corp., 710 F.2d 41, 46 (2d Cir. 1983) ("An allegation of corrupt and wasteful practices at a large municipal hospital . . . obviously involves a matter of public concern."); Vasbinder v. Ambach, 926 F.2d 1333 (2d Cir. 1991) (involving retaliation for an employee's report to the Federal Bureau of Investigation of possible fraud and misallocation of funds by a state office). Nor did she give testimony regarding policies of the Customs Service before a governmental body. See Piesco, 933 F.2d 1149 (involving retaliation against an appointee to the New York City Department of Personnel for her testimony before a New York State Senate Committee on the issue of the administration of civil service tests); Dobosz v. Walsh, 892 F.2d 1135 (2d Cir. 1989) (involving retaliation against a police officer for his cooperation with the Federal Bureau of Investigation in a homicide investigation and his testimony in court against a fellow officer).
Instead, plaintiff simply complained of a single official's behavior on a single occasion. Even though it is conceivable that a complaint of physical intimidation and harassment by a Customs Service official might touch upon a matter of public concern, it is also entirely reasonable for Anton to have concluded that the subject of plaintiff's complaint was a personal, employment-related grievance. Accordingly, he is entitled to qualified immunity with respect to this claim. See Connick v. Myers, 461 U.S. 138, 146-147, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983) ("When a public employee speaks not as a citizen upon matters only of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision . . . ."); 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."). The Bivens claim is therefore dismissed.
The Section 1985(3) Claim Against Anton and Smith
Plaintiff's claim under 42 U.S.C. § 1985(3) against Anton and Smith alleges that they conspired to "punish plaintiff for exercising her First Amendment rights by complaining about defendant's harassment of her, and to deprive her of her Fifth Amendment right to a fair hearing pursuant to United States Customs regulations." The relevant portion of Section 1985(3) provides that a conspiracy to interfere with civil rights exists "if two or more persons in any State or Territory conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws . . . ."
To state a cause of action under Section 1985(3), a plaintiff must allege (1) a conspiracy (2) for the purpose of depriving a person or class of persons of the equal protection of the laws, or the equal privileges and immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4) an injury to the plaintiff's person or property, or a deprivation of a right or privilege of a citizen of the United States.