                                                                          [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                                                                               FILED
                                                            U.S. COURT OF APPEALS
                                       No. 99-14594           ELEVENTH CIRCUIT
                                                                  APR 18, 2001
                                                               THOMAS K. KAHN
                          D.C.   Docket No. 99-00023-CV-JTC-3       CLERK



ANGIE CHESSER, a.k.a. Angie Kimball,

                                                           Plaintiff-Appellee,


                                     versus

AMOS SPARKS, individually and in his
official capacity as Haralson County Commissioner,

                                                           Defendant-Appellant.



                      Appeal from the United States District Court
                         for the Northern District of Georgia


                                      (April 18, 20001)

Before TJOFLAT, HULL and PROPST*, Circuit Judges.


______________________
*Honorable Robert B. Propst, U.S. District Judge for the Northern District of Alabama, sitting
by designation.

TJOFLAT, Circuit Judge:
      The sole issue in this interlocutory appeal is whether the defendant county

Commissioner, who is being sued for money damages in his individual capacity

under 42 U.S.C. § 1983, is entitled to qualified immunity with respect to the

plaintiff’s claims that he terminated her employment in violation of her First

Amendment rights of free speech and freedom of association. The district court

denied the Commissioner’s motion to dismiss, holding that the plaintiff’s

complaint alleged facts sufficient to defeat the defense of qualified immunity. We

reverse.



                                          I.

      According to the allegations of her complaint, plaintiff Angie Chesser began

working in the clerk’s office in Haralson County, Georgia, in 1985. At the time of

her discharge in February 1997, she held the position of Assistant County Clerk.

Her responsibilities included the preparation of the payroll for the County’s several

departments, including the sheriff’s office.

      Haralson County is governed by a one-person commission. In the

November 1996 general election, defendant Amos Sparks was elected

Commissioner and Chesser’s then-husband, Ronnie Kimball, was elected Sheriff;

both took office on January 1, 1997. Sparks and Kimball were political enemies.


                                          2
So, in an effort to avoid what might appear to be a conflict of interest, Chesser

arranged for a co-worker to prepare the payroll for the sheriff’s department.

       On February 6, 1997, Sparks issued a memorandum to all county

departments which stated that, due to budget concerns, overtime would not be

reimbursed in the form of wages. Notwithstanding this instruction, overtime

wages were paid to sheriff’s department employees. Calling her attention to his

memorandum, Sparks asked Chesser why overtime had been paid. After

disclaiming knowledge of the memorandum, Chesser said that the County’s failure

to compensate overtime in the form of wages would violate the Fair Labor

Standards Act.1 Sparks terminated Chesser’s employment on February 20, 1997;2

his stated reason for the termination was that she was insubordinate and

demonstrated a “lack of cooperation.”



                                              B.


       1
        Pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., a public employee
working overtime has the choice to be reimbursed either in the form of wages or compensatory
time. 29 U.S.C. §§ 207(a) and (o). A public employer may only substitute compensatory
compensation for overtime pay pursuant to a collective bargaining agreement or agreement
between the employer and employee if there is no applicable collective bargaining agreement.
29 U.S.C. § 207(o)(2).
       2
         Although the complaint makes no mention of the terms of her employment, we assume
that Chesser was an at-will employee and that Sparks had the authority to terminate her
employment.

                                              3
       Chesser responded to her discharge by filing a two count complaint in the

Northern District of Georgia against Haralson County and Sparks, in both his

official and individual capacities. Count One, brought under the Fair Labor

Standards Act (“FLSA”), alleged that her discharge constituted retaliatory conduct

proscribed by the FLSA.3 Count Two, brought under 42 U.S.C. § 1983,4 alleged

that Sparks’s termination of Chesser’s employment infringed her First Amendment

rights of free speech and of freedom of association (her marriage to the Sheriff).5

       Both defendants moved to dismiss the complaint pursuant to Rule 12(b)(6)

of the Federal Rules of Civil Procedure, contending that neither count stated a

claim for relief. Sparks, in addition, contended that he was entitled to qualified


       3
        The FLSA makes it unlawful for an employer to:
       discharge or in any other manner discriminate against any employee because such
       employee has filed any complaint or instituted or caused to be instituted any proceeding
       under or related to this chapter, or has testified or is about to testify in any such
       proceeding, or has served or is about to serve on an industry committee.
29 U.S.C. § 215(a)(3) (1994).
       4
         42 U.S.C. § 1983 provides, in pertinent part:
       Every person who, under color of any statute, ordinance, regulation, custom, or usage, of
       any State or Territory or the District of Columbia, subjects, or causes to be subjected, any
       citizen of the United States or other person within the jurisdiction thereof to the
       deprivation of any rights, privileges, or immunities secured by the Constitution and laws,
       shall be liable to the party injured in an action at law . . . .

       5
          Although Chesser’s complaint does not mention the Fourteenth Amendment, which is
the constitutional provision that makes the First Amendment applicable to state and local
governments, see Wallace v. Jaffree, 472 U.S. 38, 49 n. 34, 105 S. Ct. 2479, 2486 n.34, 86 L. Ed.
2d 29 (1985) (collecting cases), we treat the complaint as alleging violations of the Fourteenth
Amendment.

                                                4
immunity on the Count Two claims asserted against him in his individual capacity.

The district court granted the defendants’ motions as to Count One, but denied

them as to Count Two. The court also found the allegations of the complaint

sufficient to overcome Sparks’s qualified immunity defense. The court stated that

it would reconsider the defense if Sparks moved for summary judgment following

the completion of discovery. After the court made these rulings, Sparks lodged

this appeal.



                                          II.

                                          A.

      We have jurisdiction to review the denial of the defense of qualified

immunity pursuant to 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511,

530, 105 S. Ct. 2806, 2817, 86 L. Ed. 2d 411 (1985). While qualified immunity is

typically addressed at the summary judgment stage of the case, the defense may be

raised and considered on a motion to dismiss; the motion will be granted if the

“complaint fails to allege the violation of a clearly established constitutional right.”

Williams v. Ala. State Univ., 102 F.3d 1179, 1182 (11th Cir. 1997). Whether the

complaint alleges such a violation is a question of law which we review de novo,

accepting the facts alleged in the complaint as true and drawing all reasonable


                                           5
inferences therefrom in the plaintiff’s favor. Id.



                                           B.

      Qualified immunity protects government actors performing discretionary

functions from being sued in their individual capacities. Williams, 102 F.3d at

1182; Lassiter v. Ala. A & M Univ., Bd. of Trustees, 28 F.3d 1146, 1149 (11th Cir.

1994) (en banc). The doctrine shields government officials from liability to the

extent that “their conduct does not violate clearly established . . . constitutional

rights of which a reasonable person would have known.” Harlow v. Fitzgerald,

457 U.S. 800, 817-18, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982). The

doctrine protects government officials from always “err[ing] on the side of

caution” by shielding them both from liability “and the other burdens of litigation,

including discovery.” Lassiter, 28 F.3d at 1149.

      Evaluating the defense of qualified immunity involves a two step inquiry:

first, whether the defendant’s conduct violated a clearly established constitutional

right; and, second, whether a reasonable government official would have been

aware of that fact. See Tindal v. Montgomery County Comm’n, 32 F.3d 1535,

1539 (11th Cir. 1994). This two-step inquiry is designed to “provide[] ample

protection to all but the plainly incompetent or those who knowingly violate the


                                           6
law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d

271 (1986).

      A constitutional right is clearly established if controlling precedent has

recognized the right in a “concrete and factually defined context.” Lassiter, 28

F.3d at 1149; see also Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir.

1993) (“If case law, in factual terms, has not staked out a bright line, qualified

immunity almost always protects the defendant.”). A plaintiff cannot avoid the

qualified immunity defense “by referring to general rules and to the violation of

abstract ‘rights.’” Lassiter, 28 F.3d at 1150. If the constitutional right has been

clearly established, the plaintiff must demonstrate that a reasonable government

actor would have known that what he was doing infringed that right. See

Williams, 102 F.3d at 1182. With this two step inquiry in mind, we turn to the

question of whether Sparks’s decision to terminate Chesser’s employment violated

either of the First Amendment rights involved here – freedom of speech or

freedom of association – in such a manner that a reasonable government official

would have known.



                                          III.

                                          A.


                                           7
      “It is axiomatic that ‘[a] state may not demote or discharge a public

employee in retaliation for protected speech.’” Tindal v. Montgomery County

Comm’n, 32 F.3d 1535, 1539 (11th Cir. 1994) (quoting Morgan v. Ford, 6 F.3d

750, 753-54 (11th Cir. 1993)); see Rankin v. McPherson, 483 U.S. 378, 383, 107

S. Ct. 2891, 2896, 97 L. Ed. 2d 315 (1987). A public employee’s right to freedom

of speech, however, is not absolute. Bryson v. City of Waycross, 888 F.2d 1562,

1565 (11th Cir. 1989). To determine whether a state actor has retaliated against an

employee because of the employee’s protected speech, we have used a four-

pronged test based on the Supreme Court’s decision in Pickering v. Board of

Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). See Rice-Lamar

v. City of Fort Lauderdale, 232 F.3d 836, 841 (11th Cir. 2000).

      First, we consider whether the employee’s speech is “‘fairly characterized as

constituting speech on a matter of public concern.’” Bryson, 888 F.2d at 1565

(quoting Rankin, 483 U.S. at 384, 107 S. Ct. at 2896-97). If it is, we apply the

Pickering balancing test, which weighs the employee’s free speech interest against

“the interest of the state, as an employer, in promoting the efficiency of the public

services it performs.” Pickering, 391 U.S. at 568, 88 S. Ct. at 1734-35. If the

employee’s interests outweigh those of the state as an employer, we turn to the

third prong: whether the speech “played a ‘substantial part’ in the government’s


                                          8
decision to discharge the employee.” Fikes v. City of Daphne, 79 F.3d 1079, 1084

(11th Cir. 1996). If it did, we must address the fourth prong, which is whether the

government has shown by a preponderance of the evidence that it would have

discharged the employee regardless of the protected conduct. Id. at 1085.



                                            1.

        Speech addresses a matter of public concern, and thus establishes

Pickering’s first prong, if it relates “to any matter of political, social, or other

concern to the community.” Connick v. Myers, 461 U.S. 138, 146, 103 S. Ct.

1684, 1690, 75 L. Ed. 2d 708 (1983). In making this determination, we examine

the content, form, and context of the employee’s speech. Bryson, 888 F.2d at

1565.

        The speech at issue here is Chesser’s statement to Sparks that the County’s

failure to pay wages for overtime would violate the FLSA. In focusing on the

content, form, and context of the speech, we consider whether the employee is

speaking as a citizen on behalf of the public or “as an employee upon matters only

of personal interest.” Connick, 461 U.S. at 147, 103 S. Ct. at 1690. Chesser’s

statement may not have been “only of personal interest,” id., but she was certainly

speaking as an employee when, as Assistant County Clerk in charge of payroll, she


                                            9
told Sparks, in his capacity as County Commissioner, that the County could not

lawfully refuse to pay overtime wages. Chesser cites no case, and our independent

research has uncovered none, holding that a statement such as Chesser’s, made in

the same or similar context, satisfies the first prong of the Pickering test.6 Because

“case law, in factual terms, has not staked out a bright line,” Post v. City of Fort

Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993), indicating that Chesser’s speech

was a matter of public concern, a reasonable government official in Sparks’s

position would have had no reason to believe that the Constitution protected

Chesser’s statement that the County’s refusal to pay overtime wages would violate

the FLSA.




       6
          Chesser contends that Martinez v. City of Opa-Locka, 971 F.2d 708 (11th Cir. 1992),
and Gonzales v. Lee County Housing Authority, 161 F.3d 1290 (11th Cir. 1998), support her
claim that the First Amendment clearly protected her statement to Sparks. Neither case is on
point. In Gonzales we reversed the district court’s denial of qualified immunity on the plaintiff’s
free speech claim. We affirmed the district court’s denial of qualified immunity only on the
plaintiff’s claim that the defendant terminated her employment in violation of a provision of the
Fair Housing Act, 42 U.S.C. § 3617. Gonzales, 161 F.3d at 1298, 1305.
        In Martinez, the plaintiff alleged that she was discharged for testifying before a Board of
Inquiry that the defendant, the city manager, had violated bid procedures in purchasing furniture
for the city hall. Martinez, 971 F.2d at 710-11. We affirmed the denial of qualified immunity,
finding that the plaintiff’s speech was protected under the first prong of the Pickering test, id. at
712; the plaintiff’s statements were made before a Board of Inquiry and provided information
concerning the expenditure of public funds. Id. We further noted that the form of the speech
was testimony and that the context was an examination into the activities of city personnel which
was being conducted by officials having investigatory powers. Id. None of these factors exist in
the instant case. Here, Chesser spoke directly to Sparks about paying overtime wages; there was
no official investigation and the speech was not made to inform a third party.

                                                 10
                                             2.

       Even if we were to find that binding precedent7 clearly established a

constitutional right to inform one’s supervisor of the requirements of the law,

Chesser cannot satisfy the second prong of the Pickering test. That prong requires

us to consider three factors: “(1) whether the speech at issue impedes the

government’s ability to perform its duties efficiently, (2) the manner, time and

place of the speech, and (3) the context within which the speech was made.”

Bryson, 888 F.2d at 1567 (internal quotations omitted). “Because no bright-line

standard puts the reasonable public employer on notice of a constitutional

violation, the employer is entitled to immunity except in the extraordinary case

where Pickering balancing would lead to the inevitable conclusion that the

discharge of the employee was unlawful.” Dartland v. Metropolitan Dade County,

866 F.2d 1321, 1323 (11th Cir. 1989).

       “We need not decide the precise result of applying the . . . balancing test to

this case. We must decide only whether the result would be such that a reasonable

official in [the defendant’s] place would know that the termination of [the plaintiff]

under these circumstances violated [the plaintiff’s] constitutional rights.” Id. at


       7
         Binding precedent in this circuit consists of Supreme Court and Eleventh Circuit
decisions (including Fifth Circuit cases handed down prior to October 1, 1981). Bonner v.
City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).

                                            11
1324. Here, Sparks certainly had an interest in maintaining “loyalty, discipline and

good working relationships among those he supervises.” Id. Regardless of

whether Chesser’s interpretation of the FLSA was correct, Sparks may reasonably

have believed that Chesser was being insubordinate and disruptive, and hence that

he was justified in discharging her.8 In sum, Chesser cannot satisfy the second

prong of the test; consequently, we need not move to the third and fourth prongs.

The district court erred in not granting Sparks qualified immunity with respect to

the free speech component of Count Two.



                                               B.

       The second theory of recovery in County Two is that Chesser’s employment

was terminated because of her association with her then-husband, Ronnie Kimball.

To prevail on this theory, the plaintiff must demonstrate that she had a

constitutional right and that she suffered “adverse employment action for

exercising the right.” McCabe v. Sharrett, 12 F.3d 1558, 1562 (11th Cir. 1994)

(quotation omitted). If the plaintiff has established both elements, we use the

Pickering balancing test to determine whether the adverse employment action was



       8
        The complaint, in fact, specifically alleges that Sparks claimed that Chesser was being
insubordinate.

                                               12
permissible. See Ross v. Clayton County, 173 F.3d 1305, 1310-11 (11th Cir.

1999); cf. Shahar v. Bowers, 114 F.3d 1097, 1106-07 (11th Cir. 1997) (en banc)

(employing the Pickering balancing test in the context of a same-sex marriage).

       Count Two contains the two elements set out above. First, it asserts the

constitutional right of free association, which in this case is an intimate association.

“At a minimum, the right of intimate association encompasses the personal

relationships that attend the creation and sustenance of a family – [specifically]

marriage . . . .” McCabe, 12 F.3d at 1563. Second, Count Two alleges that,

because of her relationship with her husband, Chesser suffered an adverse

employment action (termination). Count Two goes on to state, however, that her

employment was terminated for insubordination and lack of cooperation.

       As an employer, Haralson County certainly has an interest in having

employees who are not insubordinate.9 We can find no concrete and factually

defined case that has held unconstitutional an employer’s decision to discharge an




       9
       As we have said:
     The more a public employee’s transfer or discharge is necessary to the effective
     functioning of the office, the more the transfer or discharge becomes justifiable,
     and thus the more likely it is that a court will find the transfer or discharge
     constitutionally permissible by finding the employer’s interest to outweigh the
     employee’s interest in the Pickering balance.
McCabe, 12 F.3d at 1570.

                                               13
employee due in part to insubordination.10 A reasonable government actor in

Sparks’s position would have no reason to believe that such a decision would

violate the law. The district court erred in not granting qualified immunity to

Sparks on this Count Two claim.



                                                IV.

       For the foregoing reasons, the decision of the district court denying Sparks’s

qualified immunity on Chesser’s Count Two claims is

       REVERSED.




       10
           The district court based its denial of the motion to dismiss on our decision in Wilson v.
Taylor, 733 F.2d 1539, 1544 (11th Cir. 1984). Wilson involved a claim by a police officer that
his employment was terminated for dating the adopted daughter of “a convicted felon reputed to
be a key figure in organized crime in central Florida.” Id. at 1540. We stated that “[a] state
violates the [F]ourteenth [A]mendment when it seeks to interfere with the social relationship of
two or more people.” Id. at 1544. While that statement holds true today, we expressly
recognized in Wilson that it was “a narrow holding.” Id. at 1544 n.3.
        In this case, the [defendant] made the argument that dating was not protected
        under the [F]irst [A]mendment freedom of speech provision. The [defendant] did
        not make the argument that even if dating were protected under the freedom of
        association provision of the [F]irst [A]mendment, a[n employee’s] rights under
        that provision could be curtailed due to the nature of [the employment].
Id. Because Wilson did not employ the Pickering balancing test, the decision would not have
informed a reasonable government actor standing in Sparks’s shoes that he would infringe
Chesser’s constitutional right of intimate association if he terminated her employment.

                                                14
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