It was not apparent, said the Eleventh Circuit, that passing a public school teacher over for promotion based on comments made by her father would violate her constitutional rights because the case law upon which she relied was not particularized to the facts of her case but merely set out First Amendment principles at a high level of generality. Thus, a school superintendent was entitled to qualified immunity on her Section 1983 claims for freedom of speech and intimate association, the appeals court found, reversing the judgment of the court below. Judge Jordan filed a short concurring opinion (Gaines v. Wardynski, September 21, 2017, Vinson, C.).
Shortly after her father, a county commissioner, published an article in the local paper that was critical of the city board of education and its superintendent, the employee was allegedly denied a promotion. She subsequently sued the superintendent, claiming he violated her First Amendment rights by retaliating against her in violation of her right to freedom of speech (based on what her father told the newspaper) and retaliating against her in violation of her right to freedom of intimate association (based on her close relationship with her father).
Lower court proceedings. Arguing that he was entitled to qualified immunity, the superintendent moved for summary judgment but the district court denied the motion. He then filed an interlocutory appeal and moved the district court to stay the trial pending the outcome of the appeal. When the court denied the stay, he filed an emergency motion in the appeals court to stay the trial date and a previous panel granted the order.
Clearly established? Accepting for purposes of the appeal that the superintendent passed the employee over for promotion because her father had criticized him and the board about a matter of public concern and that doing so violated her First Amendment rights, the court explained that the case turned on whether those rights were “clearly established” by controlling law at the time. While there are three methods to show the government official had “fair warning” that the conduct at issue violated a constitutional right, only the first method was applicable here.
Under that method a plaintiff may point to prior case law (from the U.S. Supreme Court, the federal appeals court, or the highest court in the relevant state) that is “materially similar.” And while existing case law does not necessarily have to be “directly on point,” it must be close enough to have put “the statutory or constitutional question beyond debate,” the court explained, noting that it is particularly difficult to overcome the qualified immunity defense in the First Amendment context.
Freedom of speech claim. In finding that it was clearly established that adverse action cannot be taken against a public employee because “a relative of the employee made the protected speech,” the district court cited only a single case, which involved the employee’s own speech, not speech by the employee’s relative. Thus, that was inapplicable. For her part, the employee cited Thompson v. North American Stainless, in which the Supreme Court held that an employee could pursue a retaliation claim against his former employer after he was fired because his fiance, who also worked for the employer, had engaged in a protected activity. But Thompson, the appeals court pointed out, was a Title VII case and thus did not constitute clearly established First Amendment law.
And although the employee also cited a district court case, a district court case cannot clearly establish the law for qualified immunity purposes either, the appeals court stated, finding that at the time relevant to this case, it was not clearly established it would violate an employee’s free speech rights to take adverse action because her father had engaged in protected speech. Accordingly the superintendent was entitled to qualified immunity, and summary judgment, on this claim.
Freedom of intimate association. As to the employee’s freedom of intimate association claim, the court observed that the question before it was narrow: was it clearly established in 2013 (by the U.S. Supreme Court, this court, or the Supreme Court of Alabama) that it would violate the right to freedom of intimate association to take an adverse action against an employee whose father publicly criticized her employer? While the employee cited several Eleventh Circuit cases, none of them involved the same or similar facts. Indeed, the court pointed out, her attorney conceded at oral argument that “there certainly are no cases that we’ve cited dealing with the protection of a child from retaliation based upon the conduct of a parent.” In the absence of any controlling case involving that situation on sufficiently similar facts, the court found the superintendent did not have notice and fair warning he was violating the employee’s right to freedom of intimate association and he was entitled to qualified immunity and summary judgment on this claim as well.
Concurrence. Judge Jordan, in a concurring opinion, argued that “the constitutional right to freedom of intimate association, whether seen as a pure or hybrid First Amendment right, protects a public employee from adverse treatment based on the speech of a close relative or family member.” He concurred in the court’s opinion and analysis, however, “because no cases from the Supreme Court, the Eleventh Circuit, or the Alabama Supreme Court have so far come to that conclusion.”
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