[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 17, 2005
No. 04-11888 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 00-02212-CV-JEC-1
JANICE AKINS,
DEBRA BLOUNT,
NATALIE REVELL,
Plaintiffs-Appellants,
versus
FULTON COUNTY, GEORGIA,
JOHN GATES, Individually,
VANESSA REYNOLDS, Individually,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 17, 2005)
Before BLACK and WILSON, Circuit Judges, and NANGLE*, District Judge.
WILSON, Circuit Judge:
In this case we review a decision granting a public employee qualified
immunity with respect to Plaintiffs’ claim of First Amendment retaliation. The
district court granted qualified immunity after determining that the law regarding
constructive discharge and protected speech was not clearly established. We think
that it was. However, because one of the Plaintiffs did not resign, but requested
and received a favorable transfer, she cannot state a claim for constructive
discharge. We reverse in part and affirm in part the district court’s order granting
summary judgment in favor of Defendant John Gates.1
I. BACKGROUND
Plaintiffs are former employees of the purchasing department of Fulton
County, Georgia. Debra Blount and Natalie Revell were employed as contracting
officers. Janice Akins supervised both Blount and Revell as Contracting Division
Chief and Assistant Purchasing Agent for Contracting. Defendant Gates is the
department’s director and ultimate supervisor of all three Plaintiffs.
*
Honorable John F. Nangle, United States District Judge for the Eastern District of
Missouri, sitting by designation.
1
Plaintiffs have abandoned their claims against Defendant Vanessa Reynolds and Fulton
County. We therefore affirm the district court’s grant of summary judgment as to these parties.
2
In 1998, Plaintiffs began to notice several “irregularities” in the purchasing
department’s process for bidding and contracting. They claim that some
transactions did not follow the department’s rules and regulations. Plaintiffs and
some of their coworkers requested and were granted a meeting with Fulton County
Commissioner Emma Darnell for the afternoon of August 27, 1998. On the
morning of the meeting, Gates spoke with one of Plaintiffs’ coworkers, allegedly
“lectur[ing]” her on the consequences of attending the meeting with Commissioner
Darnell. According to Plaintiffs, many of their coworkers decided not to attend
because of Gates’s “intimidation.” Plaintiffs allege that, although they discussed
general work environment concerns at the meeting, the “main thrust” of their
conversation was a discussion of these bidding irregularities, referring specifically
to six bids in their affidavits. In addition, Plaintiffs identified six other bids that
they discussed with Commissioner Darnell on later occasions.
Plaintiffs concede that their work relationship with Gates had not been
perfect, but they claim that things took a turn for the worse after the meeting. For
example, one of Plaintiffs’ coworkers revealed in his affidavit that, on the day of
the meeting, Gates instructed employees not to communicate or associate with
Plaintiffs. Another coworker stated that Gates intimidated employees to keep
them from speaking with Plaintiffs. According to Plaintiffs, their friends within
3
the department would no longer speak with them, and others would walk in the
other direction when they saw Plaintiffs. Also on August 27, 1998, Blount and
Revell received written warnings from Gates for eavesdropping, which they found
in their offices upon returning from the meeting.
In the weeks and months that followed, Plaintiffs claim that Gates continued
to single them out unfavorably. In September of 1998, Gates “berated” Blount for
taking notes in a staff meeting, and Akins was informed that she was not to attend
a year-end closeout meeting that she had attended throughout her career. A week
later, Gates accused Blount of sabotaging a bid.
In October, Plaintiffs attended a Board of Commissioners meeting, as it was
customary for purchasing officers to do. Plaintiffs were told by Gates’s assistant
that Gates wanted them to leave the meeting. They were not permitted to attend
subsequent Board meetings. Gates also instructed Plaintiffs to turn over files for
several projects, relieving them of the bulk of their work duties. After
approximately one-and-a-half months without work, Gates claimed that there had
been a misunderstanding and returned to Plaintiffs some, but not all, of their
duties. On October 14, 1998, Gates accused Blount and Revell of sabotaging a
bid. The next day, Gates ordered Plaintiffs to display their time sheets publicly,
even though other employees were permitted to keep their time sheets private.
4
In December, Gates asked Blount and Revell for assistance with what they
said was “unethical behavior,” though they did not explain what constituted this
behavior. Gates also sent Akins a letter accusing her of poor management of
employees.
On January 7, 1999, Gates wrote Akins a memo threatening to suspend her
for insubordination. Akins claims that this resulted from a December 1, 1998
meeting at which Gates directed her to train the staff on a computer system for
which she herself had not been trained. On January 12, 1999, Gates gave Akins a
memo identical to the January 7 memo, except for the date.
By this time, Blount had decided to resign due to the bid irregularities and
the resulting retaliation, including Gates’s accusations of sabotage. Akins
conducted Blount’s exit interview on January 19, 1999, when Blount revealed her
reasons for leaving. Akins claims that afterwards, Gates tried to coerce her into
changing Blount’s written comments concerning the reasons for her departure.
Allegedly in response to Akins’s refusal to changing Blount’s comments, Gates
prepared a written performance evaluation of Akins on that same day in which he
lowered her rating from “exceeds expectations” to “meets expectations.” Akins
did not receive this evaluation, but only learned of it when she received her
personnel records in August of 2000 during discovery for this litigation.
5
In addition, Plaintiffs allege that Gates again accused Revell of sabotage by
forging Gates’s signature on documents and discarding papers. Revell also went
through several office changes, including two moves in one day and a move from
an office to a cubicle. Finally, Akins stated that Gates repeatedly reprimanded her
for allowing Blount and Revell to report bid irregularities.
Plaintiffs bring a claim under 42 U.S.C. § 1983, arguing that these events,
considered either individually or in the aggregate, constitute First Amendment
retaliation by Gates. The district court granted summary judgment in favor of
Gates based on qualified immunity. Plaintiffs appeal.
II. STANDARD OF REVIEW
We review grants of summary judgment based on qualified immunity de
novo. Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003). A motion for
summary judgment should be granted when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). “[T]he plain
language of Rule 56(c) mandates the entry of summary judgment . . . against a
party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden
6
of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). On a
summary judgment motion, we resolve all reasonable doubts and make all
justifiable inferences in the non-movants’ favor. See Chapman v. AI Transp., 229
F.3d 1012, 1023 (11th Cir. 2000). Thus, we consider the facts in the light most
favorable to Plaintiffs. Id.
III. DISCUSSION
A government official acting within his discretionary authority is eligible
for qualified immunity when the facts “[t]aken in the light most favorable to the
party asserting the injury, . . . show the officer’s conduct violated a constitutional
right” and when “the right was clearly established.” Saucier v. Katz, 533 U.S.
194, 201, 121 S. Ct. 2151, 2156 (2001). We apply this two-step analysis below,
addressing the threshold question of discretionary authority first.
A. Discretionary Authority
To benefit from qualified immunity, a government official must make a
threshold showing that his actions were undertaken pursuant to performance of his
duties within the scope of his authority. Hutton v. Strickland, 919 F.2d 1531,
1537 (11th Cir. 1990). Plaintiffs do not dispute that Gates was acting within his
discretionary authority when he issued reprimands, threatened job loss or
suspension, relieved Plaintiffs of work duties and then reprimanded them for not
7
performing that work, and excluded them from meetings. We agree that these
actions clearly fall within the range of Gates’s discretionary authority.
B. Violation of a Constitutional Right
The next step in the qualified immunity inquiry is to determine whether the
plaintiffs’ allegations, if true, establish a constitutional violation. Hope v. Pelzer,
536 U.S. 730, 736, 122 S. Ct. 2508, 2513 (2002). For a public employee to
establish that an employer conditioned her job in a way that burdened a
constitutional right impermissibly, “the employee must first demonstrate that the
asserted right is protected by the Constitution and that he or she suffered an
‘adverse employment action’ for exercising the right.” See McCabe v. Sharrett, 12
F.3d 1558, 1562 (11th Cir. 1994). Once the employee makes 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.” Id. (citations
omitted).
1. Constitutionally Protected Right
The Supreme Court has recognized that the Constitution protects speech
regarding governmental misconduct because it “lies near the core of the First
Amendment.” Butterworth v. Smith, 494 U.S. 624, 632, 110 S. Ct. 1376, 1381
(1990). Though not an absolute right, see Virginia v. Black, 538 U.S. 343, 358,
8
123 S. Ct. 1536, 1547 (2003), the right to free speech is a fundamental one that
warrants strict scrutiny, see Elrod v. Burns, 427 U.S. 347, 362, 96 S. Ct. 2673,
2684 (1976). The right implicated in this case is certainly a constitutionally
protected right, entitling Plaintiffs to a determination of whether Gates has
impermissibly infringed that right. See Bryson v. City of Waycross, 888 F.2d
1562, 1566 (11th Cir. 1989) (noting that “a core concern of the first amendment is
the protection of the ‘whistle-blower’ attempting to expose government
corruption”).
2. Adverse Employment Action
“To be considered an adverse employment action in a First Amendment
retaliation case, the complained-of action must involve an important condition of
employment.” Stavropoulos v. Firestone, 361 F.3d 610, 619 (11th Cir. 2004),
cert. denied, __ U.S. __, 125 S. Ct. 1850 (2005). A public employee states a case
for retaliation when the alleged employment action would likely chill the exercise
of constitutionally protected speech. See id. at 618. We have decided that, as a
matter of law, important conditions of employment include discharges, demotions,
refusals to hire or promote, and reprimands. Id. (citing Goffer v. Marbury, 956
F.2d 1045, 1049 n.1 (11th Cir. 1992)). In addition, any other conduct that “alters
the employee’s compensation, terms, conditions, or privileges of employment,
9
deprives him or her of employment opportunities, or adversely affects his or her
status as an employee” qualifies as an adverse employment action. Gupta v. Fla.
Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000) (quotation and citation
omitted). Thus, if an employer’s conduct negatively affects an employee’s salary,
title, position, or job duties, that conduct constitutes an adverse employment
action. See Stavropoulos, 361 F.3d at 620. Constructive discharge negatively
affects an employee’s job status, and therefore constitutes an adverse employment
action. See Meeks v. Computer Assocs. Int’l, 15 F.3d 1013, 1021 (11th Cir.
1994).2 In other words, where working conditions are so intolerable that a
reasonable person would have felt compelled to resign, the employer’s conduct is
an adverse employment action. See Durley v. APAC, Inc., 236 F.3d 651, 658 (11th
Cir. 2000) (defining constructive discharge). Similarly, a transfer to a less
desirable position in terms of pay or eligibility for pay increases is an adverse
employment action because it is equivalent to a demotion. See McCabe, 12 F.3d
at 1564.
Importantly, “we have never held that the list cannot be expanded, so long
2
Although Meeks involved a Title VII claim, we noted in Stavropoulos that while we
have not explicitly equated the First Amendment retaliation’s “important condition of
employment” with Title VII’s adverse employment action requirement, we regularly use First
Amendment cases to inform our analysis of Title VII retaliation claims. 361 F.3d at 619–20. We
observed that the two standards are consonant. As this is our practice, we cite some Title VII
cases to inform our analysis here.
10
as the action impacts an important condition of employment.” Stavropoulos, 361
F.3d at 620. Therefore, we are not prevented from recognizing additional adverse
employment actions, such as a “constructive transfer,” where work conditions
become so intolerable that an employee asks to be transferred to a less desirable
position with a lower salary, loss of benefits, or with fewer opportunities for salary
increases. We have not previously recognized the concept of “constructive
transfer.” If we were to recognize such a claim as actionable, a plaintiff
presumably could state a claim based on that action so long as work conditions are
sufficiently intolerable, and the transfer sufficiently adverse.
In deciding whether employment actions are adverse, we consider the
employer’s acts both individually and collectively. Shannon v. Bellsouth
Telecomms., Inc., 292 F.3d 712, 716 (11th Cir. 2002) (“While the other actions of
which [the plaintiff] complains might not have individually risen to the level of
adverse employment action . . . , when those actions are considered collectively,
the total weight of them [can] constitute an adverse employment action.” (internal
quotation and citation omitted)).3
Plaintiffs allege that they suffered the following adverse employment
3
See supra note 2.
11
actions: unwarranted reprimands, a negative work evaluation, threat of job loss
through dissolution of the contracting division, threat of suspension without pay,
exclusion from meetings, removal of job duties (followed by reprimands for not
completing that work), and constructive discharge. Of the adverse employment
actions alleged by Plaintiffs, only constructive discharge or constructive transfer
can be said to have negatively affected them. Plaintiffs have not alleged that the
reprimands or the threats of suspension and job loss affected the terms and
conditions of their employment or their status as employees. Nor have they made
any claim that the exclusion from meetings or removal of job duties adversely
affected the terms and conditions of their employment. Furthermore, although a
negative work evaluation can constitute an adverse employment action under some
circumstances, see Gillis v. Ga. Dep’t of Corr., 400 F.3d 883, 888 (11th Cir.
2005), there is no evidence in the record that Akins’s compensation was or would
be adversely affected by the evaluation.
Even when considered in the aggregate, these actions are not adverse. Cf.
Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1455 (11th Cir. 1998). In
Wideman, we held that improperly listing an employee as a no-show when she was
not scheduled for work, written reprimands resulting in a one-day suspension,
soliciting negative comments but no positive comments about the employee from
12
other employees, failing to schedule the employee for work, and delaying
authorization of medical treatment, considered collectively, was an adverse
employment action. Id. at 1455–56. As compared with the actions at issue here,
the suspension and the delay in authorization for medical treatment did affect
Wideman’s status as an employee and her benefits, respectively. Furthermore,
failing to schedule her for work or marking her as a no-show would affect her
compensation and status as an employee. Finally, although soliciting negative
comments from coworkers is not in itself an adverse employment action, the
employer ultimately could use the comments in combination with the employee’s
no-show to justify discharge.
In this case, by contrast, we do not think that the actions (exclusive of
constructive discharge) rise to that level of substantiality required by our caselaw.
Thus, whether considered individually or collectively, these employment actions
cannot be considered “adverse” because they did not harm Plaintiffs. See Gupta,
212 F.3d at 589. Nonetheless, we will consider these actions because they are
relevant to Plaintiffs’ constructive discharge claim, to which we now turn.
To prove constructive discharge, Plaintiffs must demonstrate that working
conditions were so intolerable that reasonable persons in their position would have
felt compelled to resign. See Durley, 236 F.3d at 658. Furthermore, for a
13
constructive discharge claim to present a jury issue and thereby survive summary
judgment, the plaintiff must produce substantial evidence that conditions were
intolerable. See Brochu v. City of Riviera Beach, 304 F.3d 1144, 1155 (11th Cir.
2002).
In Poole v. Country Club of Columbus, Inc., we found that the plaintiff had
presented enough evidence that a reasonable person in her position could have
found it intolerable when she was “[s]tripped of all responsibility, given only a
chair and no desk, and isolated from conversations with other workers.” 129 F.3d
551, 553 (11th Cir. 1997). Therefore, we held that Poole’s constructive discharge
claim survived summary judgment. Id.
With regard to the facts before us, only Akins and Blount resigned, and
therefore only these two Plaintiffs can state a claim for constructive discharge. To
support their claim, Akins and Blount have produced evidence showing that their
work duties were removed and that they were excluded from meetings. They have
also alleged that Gates instructed their coworkers not to talk with them. To further
isolate them from their colleagues, all three Plaintiffs were required to display
their time sheets publicly when their colleagues were not. Most serious is the
claim that Gates accused Blount of sabotaging bids by engaging in illegal
behavior. Finally, Akins and Blount did in fact resign in response to this conduct.
14
Considering the facts in the light most favorable to Akins and Blount, and
comparing these facts with the facts of Poole, we see no material distinction
between them. As such, Akins and Blount have alleged an adverse employment
action sufficient to sustain a claim for First Amendment retaliation.
With respect to Revell, however, because she requested and received a
transfer from her employer, she cannot state a claim for constructive discharge. At
most, she can claim “constructive transfer.” Revell revealed in her deposition that
after her transfer, she retained her pay, vacation, and sick leave, and was even
reclassified to a higher pay rate. The sole difference between the positions is that
Revell can use her certification as a Certified Public Professional Buyer (CPPB)
only in her former position. According to Revell, qualifying for a CPPB requires
taking classes and passing certain testing modules. Because she will not be using
her CPPB in her new position, Revell appears to argue that the transfer limits her
career opportunities.
As noted above, for employment actions to be “adverse,” they must be
“objectively serious and tangible enough” to alter a plaintiff’s “compensation,
terms, conditions, or privileges of employment, deprive . . . her of employment
opportunities or adversely affect[] . . . her status as an employee.” Gupta, 212
F.3d at 588. We have held the standard for determining whether transfers are
15
adverse is an objective one. Doe v. Dekalb County Sch. Dist., 145 F.3d 1441,
1450 (11th Cir. 1998). In that case, we agreed with our sister circuits that
transfers are adverse “only where the transfers were objectively equivalent, at least
to some degree, to demotions.” Id. (emphasis added).
From the record before us, Revell’s inability to use her CPPB certification
does not appear to be objectively equivalent to a demotion. Because Revell has
failed to allege facts sufficient to allow a trier of fact to conclude that this
employment action was adverse, she cannot succeed in establishing her
entitlement to relief. To be clear, we make no judgment as to the wisdom of
recognizing the concept of constructive transfer as an adverse employment action.
We do not hold that such a cause of action exists, or that it is categorically
unactionable. We merely hold that the facts as alleged by Revell do not entitle her
to relief.
Moreover, as we explain below, Revell cannot show that this law was
clearly established. Therefore, Gates is entitled to qualified immunity with respect
to Revell’s claim. Before turning to the question of clearly established law,
however, we continue to the next step in the analysis of Plaintiffs’ claim
(excluding Revell) — whether they have alleged the violation of a constitutional
right.
16
3. Violation of Constitutional Right
It is well established in this circuit that, for a public employee to establish a
prima facie case of First Amendment retaliation, she must show: 1) that the
speech can be fairly characterized as relating to a matter of public concern, 2) that
her interests as a citizen outweigh the interests of the State as an employer, and 3)
that the speech played a substantial or motivating role in the government’s
decision to take an adverse employment action. See Bryson, 888 F.2d at 1565. If
the plaintiff can establish these elements, the defendant is given the opportunity to
rebut the presumption of retaliation by proving that it would have made the same
decision even if the speech at issue had never taken place. Id. at 1566.
For speech to be protected as speech on a matter of public concern, “it must
relate to a matter of political, social, or other concern to the community.” Watkins
v. Bowden, 105 F.3d 1344, 1353 (11th Cir. 1997). If the speech at issue is
personal in nature, and “cannot be fairly considered as relating to any matter of
political, social, or other concern to the community, government officials should
enjoy wide latitude in managing their offices, without intrusive oversight by the
judiciary in the name of the First Amendment.” Connick v. Meyers, 461 U.S. 138,
146, 103 S. Ct. 1684, 1690 (1983). Even if Plaintiffs discussed private concerns
regarding their work environment in the meeting, that does not disqualify them
17
from protection. It is well understood that “[a]n employee’s speech will rarely be
entirely private or entirely public.” Morgan v. Ford, 6 F.3d 750, 755 (11th Cir.
1993). We take into account the content, form, and context of the speech to glean
its “main thrust.” Id. at 754 (citations omitted). If the “main thrust” of a public
employee’s speech is on a matter of public concern, then the speech is protected.
Id. at 754–55.
Commissioner Darnell indicated in her deposition that she did not recall
discussing bid irregularities at the August 27 meeting, though she conceded that
the subject came up in later meetings. By contrast, Plaintiffs specifically refer to
six bids discussed with Commissioner Darnell in that meeting. A reasonable jury
could find that Commissioner Darnell’s recollection of that meeting was
incomplete. Thus, considered in the light most favorable to Plaintiffs, the speech
was of public concern.4
Furthermore, the form and context of Plaintiffs’ speech bolster their
argument that the speech was public in nature. Instead of discussing the bids and
work environment in a private, informal meeting, Plaintiffs requested a special
4
Upon reconsideration, the district court found it “striking” that Plaintiffs did not
respond to Commissioner Darnell’s deposition. The court surmised that Plaintiffs thereby
accepted her characterization of the meeting. We disagree because this conflict is a genuine issue
of fact that ought to be resolved by the factfinder, not at the summary judgment stage.
18
meeting with a public official, one of the members of the governing body of the
county. Compare Watkins v. Bowden, 105 F.3d at 1353–54 (employee’s “informal
and private comment . . . that [she] found the speaker’s comments offensive,
without more, does not constitute speech affecting a matter of public concern”),
with Cooper v. Smith, 89 F.3d 761, 765 (11th Cir. 1996) (reporting corruption in
police department to state bureau of investigation involved issue of public
concern), and Martinez v. City of Opa-Locka, 971 F.2d 708, 712 (11th Cir. 1992)
(providing testimony before city commission concerning purchasing practices of
city affected matter of public concern). Due to the nature of the meeting and the
status of the official, a reasonable jury could conclude that the “main thrust” of the
meeting was not for private gain, but rather of public concern.
Next, we consider whether Plaintiffs’ speech is protected when measured
against the government’s interest in the efficient provision of public services.
Because Plaintiffs are public employees, and the government has an interest in
preventing speech that is disruptive to the efficient rendering of public services,
we balance the employee’s and the government’s interests as instructed in
Pickering v. Board of Education to determine whether the speech merits
protection. See 391 U.S. 563, 568, 88 S. Ct. 1731, 1734 (1968); see also Stough v.
Gallagher, 967 F.2d 1523, 1526–28 (11th Cir. 1992). A “core concern” of the
19
First Amendment is the protection of whistleblowers who report government
wrongdoing. Bryson, 888 F.2d at 1566. As a result, Plaintiffs’ interest in this
speech is high. Conversely, Fulton County’s interest in preventing this kind of
speech is low. As the district court noted, preventing Plaintiffs’ speech would not
seem to aid the government’s interest in efficiency, since the speech would bring
the alleged wrongful practices to light and lead to more efficient provision of
public services. Plaintiffs’ speech thus qualifies for protection under the Pickering
test.
We turn next to consider causation, deciding whether the speech played a
“substantial part” in the government’s decision. Plaintiffs have presented
evidence that working conditions deteriorated significantly after the meeting with
Commissioner Darnell. Though working conditions had been strained prior to the
meeting, Defendant’s most severe alleged actions — removing their work duties,
isolating Plaintiffs from their coworkers, and accusing them of sabotage —
occurred after the meeting. Furthermore, all three Plaintiffs resigned or transferred
out of their department within ten months of the meeting. This close temporal
proximity between the meeting and Gates’s actions suggest a causal relationship.
See Gupta, 212 F.3d at 590. Based on this relationship, a reasonable factfinder
could conclude that Gates took these actions on account of Plaintiffs’ speech.
20
The final step in the First Amendment retaliation analysis allows the
employer to avoid liability if it can prove that it would have taken the same actions
in the absence of the protected speech. Because Gates has not presented any
arguments or evidence that he would have acted in the same manner absent
Plaintiffs’ meeting with Commissioner Darnell, he cannot avoid liability on this
basis.
C. Clearly Established Law
The final step in the qualified immunity inquiry is determining whether the
law was clearly established so as to put Gates on notice that his behavior was a
violation. A right is clearly established if, in light of already-existing law, the
unlawfulness of the conduct is “apparent.” See Anderson v. Creighton, 483 U.S.
635, 640, 107 S. Ct. 3034, 3039 (1987). Thus, “[i]f reasonable public officials
could differ on the lawfulness of a defendant’s actions, the defendant is entitled to
qualified immunity.” Storck v. City of Coral Springs, 354 F.3d 1307, 1314 (11th
Cir. 2003). To demonstrate that the law is clearly established, a party is not
required to cite cases with materially similar facts. Hope, 536 U.S. at 741, 122 S.
Ct. at 2516. Rather, the state of the law at the time of the unconstitutional act must
be established sufficiently to give “fair warning” to the official that his conduct is
unlawful. Id. Therefore, a constitutional provision can give fair warning when its
21
words are specific enough that they “establish clearly the law applicable to
particular conduct and circumstances and to overcome qualified immunity, even in
the total absence of case law.” Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir.
2002).
1. Fair Warning That Employment Action Was Adverse
Plaintiffs argue that Poole v. Country Club of Columbus, Inc. provides fair
warning that Gates’s actions constituted constructive discharge. See 129 F.3d 551.
The district court held, to the contrary, that Poole cannot serve as fair warning
because it merely held that a reasonable jury could find that the plaintiff had
suffered constructive discharge, not that those acts actually constituted a
constructive discharge.
In categorically holding that Poole cannot serve as fair warning of the
unlawfulness of a defendant’s conduct, the district court erred. The practical
effect of our holding in Poole is that the facts of the case constitute constructive
discharge as a matter of law. Of course, based on the posture of the case, these
facts were viewed in the light most favorable to the plaintiff. This does not alter
the effect of the holding: that the facts of Poole, if believed, constitute
constructive discharge. A holding by this Court that a particular set of facts raises
a question of material fact sufficient to preclude summary judgment serves as fair
22
warning to officials. See, e.g., Vinyard, 311 F.3d at 1348 (citing as support Lee v.
Ferraro, 284 F.3d 1188 (11th Cir. 2002), which reviewed a district court’s
disposition of a summary judgment motion).
Because Gates’s conduct occurred after we issued the opinion in Poole, and
because the facts in that case are so similar to the ones we consider here with
respect to Akins and Blount, Gates was on notice that his acts would constitute
constructive discharge.
With respect to Revell, however, her claim must fail because neither this
Circuit nor the Supreme Court has yet to recognize the claim of “constructive
transfer” as an adverse employment action. Therefore, Gates was not put on
notice that his actions would violate clearly established law. Thus, Gates is
entitled to qualified immunity with respect to Revell’s claim of First Amendment
retaliation.
2. Fair Warning That Plaintiffs’ Speech Was Protected
In arguing that Gates was on notice that Plaintiffs’ speech was protected,
Plaintiffs rely on Walker v. Schwalbe, 112 F.3d 1127 (11th Cir. 1997). Gates, on
the other hand, cites Martin v. Baugh, 141 F.3d 1417 (11th Cir. 1998), for the
proposition that the law was not clearly established. Because these cases are
factually similar, and because their legal import has been changed by the Supreme
23
Court’s decision in Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508, they merit
discussion in greater detail.
In Walker, a 1997 decision, the plaintiff, an employee of the state-sponsored
Vista Community Programs, approached his superiors to complain that some
budget practices violated regulations and prevented him from effectively
managing the budgets for which he was responsible. In response, his superiors
began to withhold budget information from Vista employees. When Walker’s
efforts to discuss these issues with his direct superiors failed, he sought help from
state legislators. During a meeting with several state representatives and senators,
Walker discussed possible improprieties in Vista’s budget practices, which led to
an investigation of Vista.
After the release of the investigative report, Walker suffered adverse
employment actions, purportedly because he had hired his wife in violation of the
state’s employment policy. We concluded that the plaintiff was a whistleblower
demoted in retaliation for his speech, and stated that a reasonable governmental
official would have known in 1991 that he could not punish an employee for such
First Amendment-protected speech, and thus, the defendants were not entitled to
qualified immunity. Walker, 112 F.3d at 1132.
In Martin v. Baugh, decided in April of 1998, the City of Birmingham
24
solicited bids for an upgrade of its communications system. Two companies
placed bids using two different industry standards. After rejecting both bids, the
City entered into private negotiations with one of the companies, which resulted in
a contract. Concerned that the system offered by that company was inferior to that
offered by the other company, the plaintiff Martin, a city employee, spoke with a
City Councilman and the Fraternal Order of Police and disseminated technical
information to them comparing the two systems. In addition, Martin questioned
the bidding standards upon which the prevailing company had submitted its bid.
Martin conducted his speech activities without the knowledge of his
supervisor, Baugh. When Baugh learned of Martin’s activities, Baugh accused
Martin of insubordination and suggested that he resign. In addition, Baugh gave
Martin written reprimands and assigned some of his duties to another employee.
In deciding the case, we observed that Martin’s allegations did not establish
a constitutional violation. We based our primary holding on the “clearly
established” prong of the qualified immunity test. We noted that “Martin points to
no case, and we find none after our own search, that would have made it obvious
to a person in Baugh’s position that Martin’s speech . . . was constitutionally
protected.” Martin, 141 F.3d at 1421.
Importantly, we decided Martin before the Supreme Court released its
25
decision in Hope v. Pelzer. In that case, the Court held that the facts of previous
cases need not be “materially similar” to the facts at hand to furnish fair warning
of a violation. 536 U.S. at 741, 122 S. Ct. at 2516. The Court explained that
“general statements of the law are not inherently incapable of giving fair and clear
warning, and in other instances a general constitutional rule already identified in
the decisional law may apply with obvious clarity to the specific conduct in
question, even though the very action in question has [not] previously been held
unlawful.” Id. at 741, 122 S. Ct. at 2516 (quotation and citation omitted, alteration
in original).
Thus, the Court reversed our “rigid gloss” on the qualified immunity
standard and gave guidance for future decisions. Id. at 739, 122 S. Ct. at 2515.
We return to our consideration of Martin with this instruction in mind. In that
case, we noted the following:
Because both prongs [of the Pickering-Connick test] involve legal
determinations that are intensely fact-specific and do not lend
themselves to clear, bright-line rules, it is nearly impossible for a
reasonable person to predict how a court will weigh the myriad
factors that inform an application of the . . . test. . . . Consequently, a
defendant in a First Amendment suit will only rarely be on notice that
his actions are unlawful. Unless the plaintiff can either produce a
case in which speech materially similar to his in all Pickering-
Connick respects was held protected . . . , or show that, on the facts of
the case, no reasonable person could believe that both prongs had not
been met, he cannot defeat a defense of qualified immunity.
26
Martin, 141 F.3d at 1420 (citations omitted). Martin’s statements regarding the
qualified immunity standard are not binding because the case was decided before
Hope v. Pelzer. Post-Hope, as instructed by the Supreme Court, we are compelled
to engage in a different analysis.5 Furthermore, Martin has limited value in
determining whether the law was clearly established because the case made no
finding as to whether the defendant’s conduct established a constitutional
violation. Thus, the case that is closest in time and similar with regard to its facts
does not resolve the issue of whether the law was clearly established because
Martin declined to make a finding of constitutional violation vel non.
Following Hope’s instructions, we find that Gates was at least on notice of
Pickering and Connick, which set forth the standard for protection of the speech of
public employees. See, respectively, 391 U.S. 563, 88 S. Ct. 1731; and 461 U.S.
138, 103 S. Ct. 1684. Because Martin makes no finding with respect to whether
the defendant there violated the Constitution, it could not provide notice to the
defendant. And, fully consistent with our pre-Hope caselaw, we found in Martin
no case that would have made it obvious to the defendant that the plaintiff’s
5
Our “prior precedent rule” provides an additional rationale for our holding that Walker
is relevant for determining the state of the law at the time of Gates’s actions. “Under our prior
precedent rule, a panel cannot overrule a prior one’s holding even though convinced it is wrong.”
United States v. Steele, 147 F.3d 1316, 1317–18 (11th Cir. 1998) (en banc). Walker was first in
time, and therefore, to the extent that Walker and Martin conflict, Walker controls.
27
speech was protected. Indeed, because we referred only to decisions with
materially similar facts to guide us, it is not surprising that we found no relevant
decision. Again, that Court’s evaluation of the case law and its relation to the
qualified immunity analysis is not controlling because it predates Hope v. Pelzer.
Using the Hope standard, we find in addition that Bryson, 888 F.2d at 1566,
and Walker, 112 F.3d at 1131, put Gates on notice that Plaintiffs’ speech as
whistleblowers was protected by the First Amendment. Consonant with our
analysis above, these cases together provide fair warning to Gates that speech
whose “main thrust” is to report bidding irregularities to a public official in a
meeting requested for that purpose is protected by the First Amendment.
IV. CONCLUSION
For the foregoing reasons, we reverse the order of the district court granting
summary judgment to defendant Gates with respect to Akins and Blount, and
affirm as to Revell.
AFFIRMED IN PART, REVERSED IN PART.
No. 04-11888, Akins v. Fulton County
BLACK, Circuit Judge, concurring:
I concur in the result reached by the majority. I would like to emphasize
that there is a disputed question of fact as to whether the “main thrust” of the
28
August 27, 1998 meeting was to discuss bidding irregularities, as Plaintiffs allege,
or general work environment concerns, as Commissioner Darnell claims. This
issue is best resolved by a jury, and not on a motion for summary judgment.
29