Lynda Gaines v. E. Casey Wardynski
Opinion of the Court
This appeal centers on the level of particularity that is required for qualified immunity analysis in a First Amendment civil rights case. Lynda Gaines, a public school teacher, filed this Section 1983 action against the school superintendent, E. Casey Wardynski, Ph.D., alleging that she was denied a promotion in violation of her First Amendment right to free speech and intimate association.
“Under the qualified immunity doctrine, government officials performing discretionary functions are- immune not just from liability, but from suit, unless the conduct which is the basis for suit violates clearly established federal statutory or constitutional rights of which a reasonable person would have known.” Sanders v. Howze, 177 F.3d 1245, 1249 (11th Cir. 1999) (citing Harlow v. Fitzgerald, 457
Earlier this year, the Supreme Court observed:
In the last five years, this Court has issued a number of opinions reversing federal courts in qualified immunity cases. The Court has found this necessary both because qualified immunity is important to society as a whole, and because as an immunity from suit, qualified immunity is effectively lost if a case is erroneously permitted to go to trial. Today, it is again necessary to reiterate the longstanding principle that “clearly established law” should not be defined at a high level of generality. As this Court explained decades ago, the clearly established law must be “particularized” to the facts of the case. Otherwise, plaintiffs would be able to convert the rule of qualified immunity into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.
White v. Pauly, — U.S. —, 137 S.Ct. 548, 551-52, 196 L.Ed.2d 463 (2017) (multiple citations, some quotation marks, and alterations omitted).
Because the district court here defined “clearly established law” at too high a level of generality, we reverse.
I.
At the time relevant to this case, Gaines was a teacher in the Huntsville City School System, and her father, Robert Harrison, was a local county commissioner. On May 1, 2013, the Huntsville Times published an article in which Harrison made critical comments about the Huntsville City Board of Education (the Board) and its Superintendent, Dr. Wardynski, regarding district rezoning efforts and plans to end federal monitoring under a long-standing desegregation order.
Prior to trial, Dr. Wardynski filed a motion for summary judgment in which he
II.
A.
To be entitled to qualified immunity, the defendant must first establish that he was acting within the scope of his discretionary authority. Maddox v. Stephens, 727 F.3d 1109, 1120 (11th Cir. 2013). Once that is shown (and it is unchallenged here), the burden shifts to the plaintiff to establish that qualified immunity is not appropriate. Id. To do that, the plaintiff must demonstrate (taking all the facts in the light most favorable to her) the following two things: (1) that the defendant violated her constitutional rights, and (2) that, at the time of the violation, those rights were “clearly established ... in light of the specific context of the case, not as a broad general proposition[.]” See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled, in part, on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). “We may decide these issues in either order, but, to survive a qualified-immunity defense, [the plaintiff] must satisfy both showings.” Jones, 857 F.3d at 851.
For purposes of this appeal, we will accept as true that Dr. Wardynski passed Gaines 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 first prong). See, e.g., Adler v. Pataki, 185 F.3d 35, 41-45 (2d Cir. 1999) (holding that retaliatory action taken solely because of the protected speech of a close family member is actionable under the First Amendment). This case turns on whether those rights were “clearly established” by controlling law when Dr. War-dynski did what he did (the second prong).
B.
“When we consider whether the law clearly established the relevant conduct as a constitutional violation at the time that [the government official] engaged in the challenged acts, we look for ‘fair warning’ to officers that the conduct at issue violated a constitutional right.” Jones, 857 F.3d at 851 (citing Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011) (en banc)). There are three methods to show that the government official had fair warning:
First, the plaintiffs may show that a materially similar case has already been decided. Second, the plaintiffs can point to a broader, clearly established principle that should control the novel facts of the situation. Finally, the conduct involved in the case may so obviously violate the constitution that prior case law is unnecessary. Under controlling law, the plaintiffs must carry their burden by looking to the law as interpreted at the time by the United States Supreme Court, the Eleventh Circuit, or the [relevant State Supreme Court],
Terrell v. Smith, 668 F.3d 1244, 1255-56 (11th Cir. 2012) (citations, quotation marks, and alterations omitted); id. at 1256-58 (discussing the three methods in
The second and third methods are generally known as “obvious clarity” cases. See Vinyard, 311 F.3d at 1350-51. They exist where the words of the federal statute or constitutional provision at issue are “so clear and the conduct so bad that case law is not needed to establish that the conduct cannot be lawful,” or where the case law that does exist is so clear and broad (and “not tied to particularized facts”) that “every objectively reasonable government official facing the circumstances would know that the official’s conduct did violate federal law when the official acted.” See id.
Because failing to promote an employee after her father had criticized her employer is not so egregious as to violate the First Amendment on its face with respect to her constitutional rights, and because there are no “broad principles” in case law clearly establishing that every reasonable official in that situation would know that the challenged conduct, would violate her First Amendment rights, this is not one of the rare and exceptional “obvious clarity” cases.
As noted, to establish fair warning under this method, plaintiff may point to prior case law (from the Supreme Court of the United States, the Eleventh Circuit, or the highest court in the relevant state) that is “materially similar.” Jones, 857 F.3d at 851-52. “This method requires us to consider ‘whether the factual scenario that the official faced is fairly distinguishable from the circumstances facing a government official in a previous case.’ ” Id. (quoting Loftus v. Clark-Moore, 690 F.3d 1200, 1204 (11th Cir. 2012)). Although existing case law does not necessarily have to be “directly on point,” it must be close enough to have put “the statutory or con
It is particularly difficult to overcome the qualified immunity defense in the First Amendment context. See, e.g., Maggio v. Sipple, 211 F.3d 1346, 1354 (11th Cir. 2000) (“ ‘a defendant in a First Amendment suit will only rarely be on notice that his actions are unlawful’ ”) (citation omitted); Martin v. Baugh, 141 F.3d 1417, 1420 (11th Cir. 1998) C“[0]nly in exceptional cases will government actors have no shield against claims made against them in their individual capacities.’ Martin’s case is especially difficult to maintain because he bases his claim against Baugh on the First Amendment.”) (citations omitted); Hansen v. Soldenwagner, 19 F.3d 573, 576 (11th Cir. 1994) (observing that decisions in the First Amendment context “tilt strongly in favor of immunity” and only in the rarest of cases will it be found that a reasonable official should have known that he violated “clearly established” law); Dartland v. Metropolitan Dade Cty., 866 F.2d 1321, 1323 (11th Cir. 1989) (noting that only “the extraordinary case” will survive qualified immunity in the First Amendment context).
III.
With the foregoing in mind, we will first consider Gaines’s freedom of speech claim, followed by her freedom of intimate association claim.
A.
The district court said it was clearly established that adverse action cannot be taken against a public employee because “a relative of the employee made the protected speech[.]” For this, the district court cited a single case: Bryson v. City of Waycross, 888 F.2d 1562 (11th Cir. 1989). But Bryson did not involve speech by a relative of the employee; it involved the employee’s own speech.
Gaines also cites a district court opinion that relied, in part, on Thompson in holding that it violates the First Amendment to retaliate against a public employee because of speech by a close family member (there, as here, the plaintiffs father). Lewis v. Eufaula City Bd. of Ed., 922 F.Supp.2d 1291 (M.D. Ala. 2012). But, of course, a district court case cannot clearly establish the law for qualified immunity purposes either. See, e.g., Gonzalez v. Lee Cty. Housing Authority, 161 F.3d 1290, 1302 n.38 (11th Cir. 1998) (noting “our precedent firmly states that a district court opinion cannot” clearly establish law for qualified immunity).
B.
We now turn to the freedom of intimate association claim. At oral argument, Gaines’s counsel expressed his opinion that this cause of action was the stronger of the two claims.
The First Amendment protects two different forms of association: expressive association and intimate association. See McCabe v. Sharrett, 12 F.3d 1558, 1562-63 (11th Cir. 1994). “The right of expressive association—the freedom to associate for the purpose of engaging in activities protected by the First Amendment, such as speech, assembly, petition for the redress of grievances, and the exercise of religion-—-is protected by the First Amendment as a necessary corollary of the rights that the amendment protects by its terms.” Id. at 1563 (citing Roberts v. United States Jaycees, 468 U.S. 609, 617-18, 622, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984)). The right of intimate association, which is the one at issue here, is “the freedom to choose to enter into and maintain certain intimate human relationships,” and it is protected from undue government intrusion “as a fundamental aspect of personal liberty.” See id. (citing Roberts).
To show that a public employer has impermissibly burdened or infringed a constitutional right, the employee must
Gaines has quoted and relied on the foregoing in her brief. However, they are general and abstract statements of the law, and “[g]eneral propositions have little to do with the concept of qualified immunity.” Muhammad v. Wainwright, 839 F.2d 1422, 1424 (11th Cir. 1987). As we have said: “The line between the lawful and the unlawful is often vague. Harlow’s ‘clearly established’ standard demands that a bright line be crossed. The line is not to be found in abstractions—to act reasonably, to act with probable cause, and so forth—but in studying how these abstractions have been applied in concrete circumstances.” Barts v. Joyner, 865 F.2d 1187, 1194 (11th Cir. 1989); see also, e.g., Anderson v. Creighton, 483 U.S. 635, 640-41, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (even though it was clearly established that plaintiff had “a general right ... to be free from warrantless searches of [his] home unless the searching officers have probable cause and there are exigent circumstances!,]” the court of appeals should have “eonsider[ed] the argument that it was not clearly established that the circumstances with which [the defendant] was confronted did not constitute probable cause and exigent circumstances”); Chesser v. Sparks, 248 F.3d 1117, 1122 (11th Cir. 2001) (“A constitutional right is clearly established if controlling precedent has recognized the right in a ‘concrete and factually defined context.’ A plaintiff cannot avoid the qualified immunity defense ‘by referring to general rules and to the violation of abstract ‘rights.’”) (citations omitted). Thus, as previously noted, “ ‘if case law, in factual terms, has not staked out a bright line, qualified immunity almost always protects the defendant.’ ” Oliver, 586 F.3d at 907 (citation omitted).
The question in this case is not whether there is a First Amendment right to intimate association; there is. Nor is the question whether a public employee can be subjected to an adverse employment action for exercising that right; she can’t. Nor is the question whether the employee will prevail if the adverse action infringed on her right to intimate association; she will. The question we are called to decide is more 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?
None of the circuit cases that Gaines has cited involved the same or similar facts. For example, in McCabe, which we quoted earlier, a police chiefs secretary sued the city and the police chief, claiming that they violated her right to intimate association by transferring her to a less desirable position because of her marriage to a police officer. In Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) (en banc), a lawyer sued the Attorney General of Georgia arguing, inter alia, that he violated her right to intimate association when he withdrew a job offer after he learned of her lesbian marriage. And in Starling v. Board of Cty. Comm’rs, 602 F.3d 1257 (11th Cir. 2010), a former firefighter sued the county and a fire department officer, alleging that his demotion for having an extramarital affair with another firefighter violated his intimate association rights.
Ultimately, counsel for Gaines had to concede 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, Dr. Wardynski did not have notice and “fair warning” that he was violating Gaines’s right to freedom of intimate association. Accordingly, Dr. Wardynski was entitled to qualified immunity, and summary judgment should have been granted on that claim as well.
IV.
Because the case law that Gaines has relied upon was not particularized to the facts of the case, but rather it merely set out First Amendment principles at a high level of generality, it was not “apparent” that passing her over for promotion based on things her father said would violate her constitutional rights. Thus, Dr. Wardynski is entitled to qualified immunity on both the freedom of speech claim and the freedom of intimate association claim. ■
For these reasons, we reverse the district court’s order denying summary judgment, and we remand this case with instructions to grant Dr. Wardynski summary judgment based on qualified immunity as to the Section 1983 claims against him.
REVERSED.
. Gaines originally sued several others as well, but we are only concerned here with the claims against Dr. Wardynski.
. Harrison was apparently a longtime critic of Dr. Wardynski and the Board. The article was titled "Bob Harrison Blasts Huntsville Superintendent Over Moving Magnet Schools,” and in it he withdrew all support for the rezoning plans; repeatedly called Huntsville school officials "disingenuous;” and said that the Huntsville City School System "did not deserve to end” federal monitoring under the desegregation order (one of fewer than 200 systems in the nation still under such an order) because “the system has not removed the vestiges of the old dual system based on race.”
. The attorneys devoted a lot of space in their briefs (and a lot of time at oral argument) to whether Gaines had properly applied for the positions; whether they were even available to her; and/or whether Dr. Wardynski was the one responsible for her being passed over. For purposes of our qualified immunity analysis, we will assume that she did; that they were; and that he was.
. An example of the former is found in United States v. Lanier, 520 U.S. 259, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997), where the Supreme Court observed: “ 'There has never been ... a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages!.]' ” Id. at 271, 117 S.Ct. 1219 (citation omitted). As for an example of the latter, this court has held that the general principle against warrantless searches and seizures established in a variety of cases was enough to clearly establish that a warrantless entry into a doctor’s office to look for a probationer was unconstitutional. See O’Rourke v. Hayes, 378 F.3d 1201, 1208 (11th Cir. 2004) ("Hayes did not have a search warrant, and can point to no exigency justifying his search. Consequently, even if a factually similar case did not exist, his actions would still have violated rights that are clearly established under these general statements of principle.”).
. Indeed, in Adler, supra, where the Second Circuit concluded that it violates the First Amendment to retaliate against an employee for the protected speech of a close family member, the Court of Appeals specifically acknowledged "the matter is not free from doubt[.]” 185 F.3d at 44. A matter that is "not free from doubt” cannot also be "obvious.”
. The plaintiff in Bryson was a police captain who was transferred to a less desirable position after he filed complaints about the police chief. The panel in that case said (at the page cite referenced in the district court’s opinion) that "the law is well-established that the state may not [take an adverse action against] a public employee in retaliation for speech protected under the first amendment!.]” 888 F.2d at 1565. However, that general (and unquestionably correct) statement of the law says nothing about whether free speech rights can be asserted by someone who did not personally engage in the protected speech herself.
. On the morning of oral argument in this case, counsel for Gaines submitted eight additional cases (some of which related to the free speech claim, while the others concerned the freedom of intimate association claim). We reviewed each of those cases and the supplemental briefs that counsel were permitted to
. In her stack of supplemental authority, Gaines cited Metz v. Sasser, 664 Fed.Appx. 895 (11th Cir. 2016), a First Amendment retaliation case involving speech by a parent. The panel in that case cited Thompson in passing and said without any further discussion that an "employee can rely on evidence that [an adverse job action] was the ‘intended means' of retaliating for [the parent’s] protected conduct.” Id. at 896. However, even if a single (and unelaborated) statement in an unpublished opinion could "clearly establish” the law in this circuit for qualified immunity purposes, Metz was decided November 30, 2016; the events at issue in this case took place three years prior, in 2013. At that point in time, no United States Supreme Court, Eleventh Circuit, or Alabama Supreme Court case had held on materially similar facts that Thompson would apply outside Title VII and in the First Amendment context.
. Lewis is similar to this case in that it involved ⅛ teacher who suffered an adverse
. And the father may have had a cause of action pursuant to Bennett v. Hendrix, 423 F.3d 1247 (11th Cir. 2005), which expressly holds that a private citizen can sue a governmental entity for violating the First Amendment if the retaliatory conduct at issue—here, punishing his child—would likely deter "a person of ordinary firmness” from exercising his First Amendment rights. Id. at 1250-54; see also id. at 1254 (noting " '[t]he effect on freedom of speech may be small, but since there is no justification for harassing people for exercising their constitutional rights it need not be great in order to be actionable’ ”) (citation omitted).
. Among the several cases that Gaines provided to us the morning of oral argument was Boudreaux v. McArtor, 681 Fed.Appx. 800 (11th Cir. 2017), a case that involved alleged retaliation against an adult child for the protected speech of a parent. That unpublished case was decided in March 2017, so it is not relevant to determining whether the law w^s clearly established at the time that Dr. War-dynski acted in this case. However, it is relevant to the extent it suggests that cases like this should be analyzed under freedom of association and not freedom of speech. Id. at 803 (“Because Mr. Boudreaux is not alleging that he was retaliated against for his beliefs due to his own speech or actions, but rather for his association with his mother, who made her beliefs known, the freedom of association line of cases [and not the freedom of speech line of cases] is most instructive here.”).
. The case that the district court relied upon, Hatcher v. Board of Public Ed., 809 F.2d 1546
Concurring Opinion
concurring.
In my view, the constitutional right to freedom of intimate association, whether seen as a pure or hybrid First Amendment right, see Roberts v. United States Jaycees, 468 U.S. 609, 618-20, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), protects a public employee from adverse treatment based on the speech of a close relative or family member. See Adler v. Pataki, 185 F.3d 35, 41-45 (2nd Cir. 1999); Adkins v. Bd. of Education, 982 F.2d 952, 955-56 (6th Cir.
Reference
- Full Case Name
- Lynda GAINES, Plaintiff-Appellee, v. E. Casey WARDYNSKI, Individually and in His Capacity as Superintendent of the Huntsville City Schools, Defendant-Appellant
- Cited By
- 121 cases
- Status
- Published