Government Official Entitled to Qualified Immunity—No Clearly Established First Amendment Violation in Not Promoting Employee Based on Father’s Speech

In last term’s decision in White v. Pauly, the Supreme Court observed that it has “issued a number of opinions reversing federal courts in qualified immunity cases” in recent years. 137 S. Ct. 548, 551 (2017).  In other words, lower courts have been too quick to conclude that challenged conduct violates “clearly established federal statutory or constitutional rights” (and therefore is not entitled to qualitied immunity), negating the purpose of qualified   immunity to protect “all but the plainly incompetent or those who knowingly violate the law.” Id.  The Court reiterated that “clearly established law” should not be defined “at a high level of generality” but should instead be “particularized” to the facts of the case. Id. at 552.

This week, the Eleventh Circuit applied White and reversed a district court for failing to adhere to this principle.  Gaines v. Wardynski, 2017 WL 4173625 (11th Cir. Sept. 21, 2017).  In Gaines, a teacher claimed that her school’s superintendent, Dr. Casey Wardynski, denied her a promotion in violation of her First Amendment right to free speech and intimate association.  Specifically, Gaines claimed she was denied the promotion based on statements her father made in the local newspaper that were critical of the school board and Wardynski.  Before trial, Wardynski moved for summary judgment arguing Gaines’s claims were barred by qualified immunity because it was not a “clearly established” violation of the First Amendment to terminate a public employee because a member of her family engaged in protected speech.  The district court disagreed, denied Wardynski’s motion, and ordered the parties to proceed to trial.

On interlocutory appeal, the Eleventh Circuit, accepting Gaines’s allegations as true, turned to whether Wardynski had “fair warning” that this conduct violated a “clearly established” constitutional right.  Plaintiffs can show a government official had fair warning in three ways:

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.

(quoting Terrell v. Smith, 668 F.3d 1244, 1255–56 (11th Cir. 2012).  The court found the latter two methods inapplicable and therefore turned to consider whether Wardynski had fair warning based on “materially similar” cases “from the Supreme Court of the United States, the Eleventh Circuit, or the highest court in the relevant state.”  (quoting Jones v. Fransen, 857 F.3d 843, 851–52 (11th Cir. 2017)).

Although Gaines highlighted a number of cases involving somewhat similar facts, she was unable to point to any case holding that it is a violation of the First Amendment for an employer to take an adverse action against an employee whose father publicly criticized the employer. The court concluded that “[b]ecause the case law that Gaines [ ] relied upon was not particularized to the facts of the case,” Wardynski did not have fair warning that passing Gaines over for promotion based on things her father said would violate her constitutional rights.  Accordingly, the court reversed and remanded the case with instructions to grant summary judgment in Wardynski’s favor based on qualified immunity.

Notably, in a short concurrence, Judge Jordan expressed his belief that the First Amendment should protect employees from adverse treatment based on the speech of a family member.

Posted by John Sharpe.

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