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Eleventh Circuit rules that defendant school superintendent was entitled to qualified immunity for decision not to promote teacher whose father had publicly criticized superintendent

On September 21, 2017, in Gaines v. Wardynski, No. 16-15583, the Eleventh Circuit Court of Appeals reversed a federal district court’s ruling denying a defendant school superintendent’s motion for dismissal in a Section 1983 civil right case involving the superintendent’s refusal to promote the plaintiff teacher as alleged retaliation for public criticism of the superintendent by the teacher’s father. The Eleventh Circuit assumed for the purposes of its review that the superintendent refused to promote the teacher because of her father’s public statements and that this violated the teacher’s First Amendment rights. The Court instead focused on whether these rights were “clearly established” by controlling law, see Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled, in part, on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009), in a way that gave “fair warning” to the superintendent that his conduct violated a constitutional right. Jones v. Fransen, 857 F.3d 843, 851 (11th Cir. 2017).

The Eleventh Circuit concluded that of the three methods for establishing fair warning, two were inapposite – the alleged violation neither so obviously violated the constitution that prior case was unnecessary, nor involved a broader, clearly established principle not tied to particularized facts. Consequently, to show that the superintendent had fair warning the plaintiff had to rely on the third method and show that a materially similar case had already been decided. The district court had relied on Bryson v. City of Waycross, 888 F.2d 1562 (11th Cir. 1989), but the Eleventh Circuit pointed out that Bryson did not involve speech by a relative of the employee; it involved the employee’s own speech. On appeal, the plaintiff relied on Thompson v. North Am. Stainless, 562 U.S. 170 (2011), in which the U.S. Supreme Court held in a Title VII case that an employee could pursue a retaliation claim against his former employer after he was fired because his fiancé (who was an employee of the same company) had engaged in a protected activity, the filing of a discrimination charge under that statute. The Eleventh Circuit found the case inapposite because of differences between protections afforded by Title VII and the U.S. Constitution.

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