                Case: 16-15583      Date Filed: 09/21/2017       Page: 1 of 21


                                                                                 [PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 16-15583
                              ________________________

                         D.C. Docket No. 5:14-cv-00750-AKK


LYNDA GAINES,

                                                                  Plaintiff-Appellee,

       versus

E. CASEY WARDYNSKI,
individually and in his capacity as
Superintendent of the Huntsville City Schools,

                                                                  Defendant-Appellant.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                             ________________________

                                   (September 21, 2017)

Before JORDAN and JULIE CARNES, Circuit Judges, and VINSON,∗ District
Judge.


       ∗
          Honorable C. Roger Vinson, Senior United States District Judge for the Northern
District of Florida, sitting by designation.
                Case: 16-15583       Date Filed: 09/21/2017       Page: 2 of 21


VINSON, District Judge:

       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. 1 Dr. Wardynski

moved for summary judgment, arguing, inter alia, that he was entitled to qualified

immunity. The district court disagreed and denied the motion. Dr. Wardynski then

filed this interlocutory appeal, and we granted oral argument.

       “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

U.S. 800, 818 (1982)). Qualified immunity protects all but the plainly incompetent

or those who knowingly violate federal law; it does not extend to one who knew or

reasonably should have known that his or her actions would violate the plaintiff’s



       1
         Gaines originally sued several others as well, but we are only concerned here with the
claims against Dr. Wardynski.

                                                2
              Case: 16-15583       Date Filed: 09/21/2017   Page: 3 of 21


federal rights. Jones v. Fransen, 857 F.3d 843, 851 (11th Cir. 2017) (citations and

quotation marks omitted).

      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 (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
                                            3
                Case: 16-15583        Date Filed: 09/21/2017        Page: 4 of 21


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.2 The complaint does

not allege that Gaines shared any of her father’s criticisms or that Dr. Wardynski

thought she did. Nevertheless, very shortly after the article was published, Gaines

alleges---and for purposes of our analysis we accept as true---that she was denied a

promotion to one of three potential teaching positions.3 She subsequently brought

this lawsuit against Dr. Wardynski, alleging that he violated her First Amendment

rights by (i) retaliating against her in violation of her right to freedom of speech

(based on what her father told the newspaper), and (ii) retaliating against her in

violation of her right to freedom of intimate association (based on her close

relationship with her father).




       2
          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.”
       3
         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.

                                                 4
              Case: 16-15583      Date Filed: 09/21/2017    Page: 5 of 21


      Prior to trial, Dr. Wardynski filed a motion for summary judgment in which

he argued, in part, that he was entitled to qualified immunity as it was not “clearly

established” that it violated the First Amendment to take an adverse action against

a public employee because a family member had engaged in protected speech. The

district court denied the motion by written order and set the case for a jury trial. Dr.

Wardynski filed this interlocutory appeal and moved the district court to stay the

trial pending the outcome of this appeal. The district court summarily denied the

motion to stay, saying only that the appeal was frivolous. Dr. Wardynski then filed

an emergency motion in this court to stay the approaching trial date, and a previous

panel granted the motion.

                                           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

                                            5
              Case: 16-15583      Date Filed: 09/21/2017     Page: 6 of 21


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 (2001),

overruled, in part, on other grounds by Pearson v. Callahan, 555 U.S. 223 (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.

Wardynski 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,




                                            6
              Case: 16-15583     Date Filed: 09/21/2017    Page: 7 of 21


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

detail); Vinyard v. Wilson, 311 F.3d 1340, 1350-53 (11th Cir. 2002) (same).

      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




                                           7
                Case: 16-15583        Date Filed: 09/21/2017         Page: 8 of 21


acted.” See id.4 Cases do not often arise under the second and third methods. See,

e.g., Santamorena v. Georgia Military College, 147 F.3d 1337, 1340 n.6 (11th Cir.

1998) (“these exceptional cases rarely arise”); see also Coffin, 642 F.3d at 1015

(“Our case law has made clear that ‘obvious clarity’ cases will be rare.”) (citing

multiple cases, including Lee v. Ferraro, 284 F.3d 1188, 1199 (11th Cir. 2002)

(referring to obvious clarity cases as a “narrow exception”); Rodriguez v. Farrell,

280 F.3d 1341, 1350 n.18 (11th Cir. 2002) (“We very occasionally encounter the

exceptional case in which a defendant officer’s acts are so egregious that

preexisting, fact-specific precedent was not necessary to give clear warning to

every reasonable . . . officer that what the defendant officer was doing must be

[unlawful].”)).

       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

       4
          An example of the former is found in United States v. Lanier, 520 U.S. 259 (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 (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.”).

                                                  8
               Case: 16-15583       Date Filed: 09/21/2017       Page: 9 of 21


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.5 Thus, we will focus

our attention on the remaining (first) method to establish fair warning.

       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

constitutional question beyond debate.” See Ashcroft v. al–Kidd, 563 U.S. 731, 741

(2011); see also Hope v. Pelzer, 536 U.S. 730, 739 (2002) (“This is not to say that

an official action is protected by qualified immunity unless the very action in

question has previously been held unlawful; but it is to say that in the light of pre-

existing law the unlawfulness must be apparent.”) (internal citation omitted). If


       5
         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.”
                                                 9
             Case: 16-15583     Date Filed: 09/21/2017   Page: 10 of 21


reasonable people can differ on the lawfulness of a government official’s actions

despite existing case law, he did not have fair warning and is entitled to qualified

immunity. Storck v. City of Coral Springs, 354 F.3d 1307, 1314 (11th Cir. 2003).

This court has stated many times that “‘if case law, in factual terms, has not staked

out a bright line, qualified immunity almost always protects the defendant.’” Oliver

v. Fiorino, 586 F.3d 898, 907 (11th Cir. 2009) (citation omitted).

      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) (“‘[O]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




                                          10
                Case: 16-15583        Date Filed: 09/21/2017        Page: 11 of 21


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.6 Gaines

impliedly concedes that Bryson does not support the position for which it was cited

by the district court as she does not even mention the case in her briefs on appeal.




       6
           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.

                                                 11
               Case: 16-15583       Date Filed: 09/21/2017       Page: 12 of 21


Instead, she relies principally on two other cases to demonstrate that the law in this

area is clearly established.7

       First, and primarily, Gaines relies on Thompson v. North Am. Stainless, 562

U.S. 170 (2011), where the Supreme Court held 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.

However, Thompson was a Title VII case arising under the statute’s anti-retaliation

provision, and the protected activity was filing a charge of discrimination under

that statute. The case does not constitute clearly established First Amendment law

because Title VII protections are not always the same as those provided by the

Constitution. Cf., e.g., Washington v. Davis, 426 U.S. 229, 239 (1976) (“We have

never held that the constitutional standard for adjudicating claims of invidious

racial discrimination is identical to the standards applicable under Title VII, and we

decline to do so today.”); Johnson v. Transportation Agency, Santa Clara Cty.,

California, 480 U.S. 616, 632 (1987) (“[W]e do not regard as identical the

constraints of Title VII and the Federal Constitution on voluntarily adopted


       7
          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 file after oral argument. Except where otherwise indicated,
those cases do not warrant discussion.

                                                12
               Case: 16-15583        Date Filed: 09/21/2017       Page: 13 of 21


affirmative action plans.”); Snider v. Jefferson State Community College, 344 F.3d

1325, 1328 (11th Cir. 2003) (“Although [prior Supreme Court and circuit

precedent] had concluded that a same-sex sexual harassment claim was actionable

under Title VII against a private employer, this precedent could not fairly put

Defendants on notice that their alleged conduct clearly violated a federal

constitutional right.”) (emphasis in the original). Although some of the logic and

discussion in Thompson could arguably be relevant in the First Amendment

context---and counsel for Gaines ably makes that argument---the fact remains it is

not a First Amendment case, and, thus, it did not “clearly establish” that what Dr.

Wardynski did ran afoul of the constitution. To be sure, it should go without saying

that a case based on a statutory provision and which did not even address the

particular constitutional right at issue cannot put that “constitutional question

beyond debate.” See al–Kidd, 563 U.S. at 741.8




       8
          In her stack of supplemental authority, Gaines cited Metz v. Sasser, 664 F. App’x 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.

                                                13
                Case: 16-15583        Date Filed: 09/21/2017         Page: 14 of 21


       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 plaintiff’s 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). 9

       In sum, at the time relevant to this case, it was not clearly established that it

would violate an employee’s free speech rights to take adverse action because her

father had engaged in protected speech. It might be fair to say in that situation that

the employer knew or should have known that he was violating the father’s First

Amendment rights.10 However, it was not clearly established under the controlling


       9
          Lewis is similar to this case in that it involved a teacher who suffered an adverse action
after her father publicly criticized the school system. Although, as noted, a district court opinion
cannot “clearly establish” the law even if it were directly on point, it bears noting that plaintiff in
that case was “allegedly perceived to share the sentiments expressed by her father.” 922 F. Supp.
2d at 1303. There are no such allegations here.
       10
           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).
                                                  14
               Case: 16-15583        Date Filed: 09/21/2017        Page: 15 of 21


law that it “would violate the constitutional rights of the [employee].” See Jones,

857 F.3d at 851 (emphasis added). Thus, Dr. Wardynski was entitled to qualified

immunity (and summary judgment) on the freedom of speech claim.

                                                 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. 11 While it may present a slightly closer question, our analysis and

conclusion are the same.

       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



       11
           Among the several cases that Gaines provided to us the morning of oral argument was
Boudreaux v. McArtor, 681 F. App’x 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 was clearly
established at the time that Dr. Wardynski 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.”).
                                                   15
             Case: 16-15583      Date Filed: 09/21/2017   Page: 16 of 21


rights that the amendment protects by its terms.” Id. at 1563 (citing Roberts v.

United States Jaycees, 468 U.S. 609, 617-18, 622 (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 first demonstrate that the asserted right is

protected by the Constitution---which, as just indicated, the right to freedom of

intimate association is---and that he or she suffered adverse action for exercising

the right. Id. at 1562. “Upon making these two showings, the employee is entitled

to prevail if the adverse employment action was taken in such a way as to infringe

the constitutionally protected right [of intimate association].” Id.

      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---

                                          16
             Case: 16-15583      Date Filed: 09/21/2017    Page: 17 of 21


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 (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 “consider[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

                                           17
               Case: 16-15583       Date Filed: 09/21/2017       Page: 18 of 21


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 chief’s 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. 12


       12
         The case that the district court relied upon, Hatcher v. Board of Public Ed., 809 F.2d
1546 (11th Cir. 1987), involved a public school teacher who was denied a promotion after she
was present alongside (and associated with) a group of parents who were protesting the school
system. Thus, it was an expressive association case---not an intimate association case---and the
                                                 18
               Case: 16-15583       Date Filed: 09/21/2017       Page: 19 of 21


       The two cases that Gaines’s attorney has said “best” support her freedom of

intimate association claim are also inapposite. In Wilson v. Taylor, 733 F.2d 1539

(11th Cir. 1984), the plaintiff, a police officer, was fired because he was dating the

daughter of a convicted felon and reputed key figure in organized crime. This court

held that his “freedom of [intimate] association rights were violated” [id. at 1550],

but the panel specifically noted it was “a narrow holding.” Id. at 1544 n.3; accord,

e.g., Chesser, 248 F.3d at 1125 n.10 (“we expressly recognized in Wilson that it

was ‘a narrow holding’”). And in Lawson v. Curry, 244 F. App’x 986 (11th Cir.

2007), the plaintiff survived a motion to dismiss on qualified immunity grounds

where she alleged that her intimate association rights had been violated when she

was harassed, disciplined, and fired for being in interracial relationships and for

being pregnant with an interracial child. That case is not remotely analogous to

what we have here.

       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


panel intimated that plaintiff did more than just associate with people who protested; she was
essentially a protester herself. See id. at 1557-58 (commenting that plaintiff “chose to add the
support of her silent presence to the [protest] efforts of those who took a more active role”).
There is no allegation in this case, by contrast, that Gaines played any role or in any way
supported (even “silently”) her father’s criticisms about Dr. Wardynski and the Board. Thus, it
would not appear that she exercised her rights to free speech and/or assembly, or associated with
her father “for the purpose of engaging in [such] activities.” McCabe, 12 F.3d at 1563 (emphasis
added).

                                               19
               Case: 16-15583   Date Filed: 09/21/2017   Page: 20 of 21


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.




                                          20
            Case: 16-15583    Date Filed: 09/21/2017   Page: 21 of 21


JORDAN, Circuit Judge, 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 (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. 1993); Lewis v. Eufaula City Bd. of Education, 922

F.Supp.2d 1291, 1302-03 (M.D. Ala. 2012). See also Collin O’Connor Udell,

Intimate Association: Resurrecting a Hybrid Right, 7 Tex. J. Women & Law 231,

284-85 (1998).    Nevertheless, I concur in the court’s opinion and qualified

immunity analysis because no cases from the Supreme Court, the Eleventh Circuit,

or the Alabama Supreme Court have so far come to that conclusion.




                                       21
