Defendants-appellants appeal from an April 3, 2008 order of the United States District Court for the Southern District of New York (Charles L. Brieant, Jr., Judge) denying their motion for summary judgment raising the defense of qualified immunity. Plaintiff claims that defendants, who are employees of the New York State Thruway Authority, violated her rights under the First Amendment to the Constitution by initiating disciplinary proceedings against her resulting in her demotion. She also asserts that, in doing so, defendants violated the First Amendment rights of her co-worker. We hold that the conduct that resulted in plaintiff's demotion does not qualify as speech protected from retaliation by the First Amendment under the framework set forth by the Supreme Court in Garcetti v. Ceballos, 547 U.S. 410 (2006). We further hold that plaintiff cannot assert a claim on behalf of her co-worker because that co-worker suffered no infringement of her own constitutional rights. Accordingly, we reverse the order of the District Court.
The opinion of the court was delivered by: JOSÉ A. Cabranes, Circuit Judge
Before: CABRANESand HALL, Circuit Judges, STEIN, District Judge.*fn1
The principal questions presented in this appeal are: (1) whether a public employee engages in speech protected from retaliation by the First Amendment by relaying asubordinate's concerns to her supervisor and by filing a lawsuit; and (2) whether a plaintiff can have third-party standing to assert claims on behalf of an individual who has suffered no injury.
Defendants-appellants Deborah Haslun, Carlos Millan, Joseph Bloomer, Ramesh Mehta, and Jonathan Barr (collectively, "defendants") appeal from an April 3, 2008 order of the United States District Court for the Southern District of New York (Charles L. Brieant, Jr., Judge) denying their motion for summary judgment raising the defense of qualified immunity. The underlying action was brought pursuant to 42 U.S.C. § 1983 by plaintiff-appellee Florence Huth ("plaintiff" or "Huth"), an employee of the New York State Thruway Authority ("Thruway Authority"). Plaintiff claims that defendants, who are also employees of the Thruway Authority, violated her rights under the First Amendment to the Constitution by initiating disciplinary proceedings against her, which resulted in her demotion. She also asserts that, in doing so, defendants violated the First Amendment rights of her co-worker. We hold that the conduct that resulted in plaintiff's demotion does not qualify as speech protected from retaliation by the First Amendment under the framework set forth by the Supreme Court in Garcetti v. Ceballos, 547 U.S. 410 (2006). We further hold that plaintiff cannot assert a claim on behalf of her co-worker because the co-worker's own constitutional rights were not violated. Accordingly, we reverse the order of the District Court.
On April 26, 2005, Huth met with Dorothy Archer ("Archer"), one of Huth's subordinates within the Thruway Authority. Archer told Huth that certain of her co-workers and supervisors were selling bootleg DVDs on Thruway Authority premises. Huth alleges that Archer also told her that a supervisor was giving "special duties" to an African-American co-worker, which Huth understood to be a complaint by Archer about reverse discrimination. Huth conveyed these concerns to her supervisor, defendant Bloomer, during daily meetings with him. Bloomer responded that he was already aware of Archer's concerns.
At some point on April 26, 2005, Huth drove in a Thruway Authority vehicle to a Thruway Authority facility in Newburgh, New York. Archer accompanied Huth on this trip. Huth stopped at several toll plazas along the way. During those stops Archer left the car and solicited and obtained Thruway Authority employees' signatures on petitions to nominate Archer for a union office. Huth maintains that Archer did not tell her that she was soliciting signatures during the stops.
Huth alleges that on April 29, 2005, Bloomer advised Huth and Archer that they were both under investigation for their activities on April 26, 2005, as Thruway Authority policy prohibits management personnel, such as Huth, from being involved in union elections and prohibits the use of Thruway Authority vehicles in connection with union elections. After a hearing officer initially cleared Huth of any wrongdoing, defendant Barr, the Thruway Authority's Director of Administrative Services, informed Huth by letter on April 11, 2007 that she had been found "guilty of misconduct and/or incompetence for violating Administrative Services Bulletin 2004-16" on Union Elections and that, as a result, Huth was being demoted to her last permanently-held, lower-level position. Huth v. Haslun, 628 F. Supp. 2d 425, 428 (S.D.N.Y. 2008).
On January 9, 2007, after disciplinary proceedings had begun, but before the Thruway Authority had decided to demote her, Huth commenced the present action. Specifically, Huth sued defendants for compensatory and punitive damages pursuant to 42 U.S.C. § 1983, alleging, inter alia, that they (1) had violated her rights under the First Amendment by disciplining her in retaliation for reporting Archer's concerns about other Thruway Authority employees; and (2) had violated, "on a third-party standing basis," J.A. 232, her rights under the First Amendment by disciplining her in retaliation for Archer's expression of her concerns and for Archer's union-related activities.*fn2 After Huth was demoted, she filed an amended complaint, which expanded her first claim by alleging not only that she was retaliated against for reporting Archer's concerns, but also for filing the instant action.
On January 11, 2008, defendants moved for summary judgment on the basis that they were entitled to qualified immunity because, based on undisputed facts, they did not violate Huth's rights under the First Amendment. Defendants further argued that Huth lacked standing to bring third-party claims on behalf of Archer. In an Order dated April 3, 2008, the District Court denied defendants' motion. Huth, 628 F. Supp. 2d at 432. Specifically, the District Court concluded that Huth's report of Archer's concerns, as well as the filing of this present action, qualified as protected speech under the First Amendment. Id. at 429. The District Court further determined that Huth had third-party standing to raise First Amendment claims on behalf of Archer. Id. at 430. Defendants filed a timely notice of appeal.
At the outset we note that "[b]ecause the denial of a motion for summary judgment is not a final judgment, it is generally not immediately appealable." Walczyk v. Rio, 496 F.3d 139, 153 (2d Cir. 2007). However, there is an exception to this general rule "when the denied motion was based on a claim of immunity, at least to the extent the immunity claim presents a 'purely legal question.'" Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)); see also O'Bert ex rel. Estate of O'Bert v. Vargo, 331 F.3d 29, 38 (2d Cir. 2003) (observing that "[u]nder the collateral order doctrine... the denial of a qualified-immunity-based motion for summary judgment is immediately appealable to the extent that the district court has denied the motion as a matter of law, although not to the extent that the defense turns ...