Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—11th Cir.: County Commissioner entitled to qualified immunity against employee’s ‘intimate association’ claim, (Dec 12, 2025)

By Ronald Miller, J.D.

To be “clearly established,” the law must be “sufficiently clear that every reasonable official would understand that” the conduct is unlawful.

On an interlocutory appeal filed by a county commissioner, the Eleventh Circuit, in an unpublished decision, vacated a district court’s judgment with respect to an employee’s First Amendment claims on the ground that the commissioner was entitled to qualified immunity. The employee alleged that she was fired for exercising her First Amendment right to intimate association—marriage—in retaliation for the political activities of her husband. The district court denied a motion to dismiss by the commissioner. In reversing the judgment of the district court, the Eleventh Circuit ruled that the intimate-association right was not clearly established at time of the challenged conduct of the commissioner (Bivins v. Franklin, No. 23-13029 (11th Cir. Dec. 9, 2025, unpublished)).

The employee served as chief financial officer of Clayton County, Georgia from 2013 to 2022. In this role, she oversaw the county’s internal-audit and finance departments and also provided guidance to the Clayton County Board of Commissioners, which included five elected commissioners.

Election campaigning. In 2022, the employee’s contract came up for renewal. During the same period, one of the commissioners was up for reelection, and the employee’s husband openly campaigned for the commissioner. Two other commissioners openly campaigned for an opponent. During a commission meeting, three commissioners voted not to renew the employee’s contract and to immediately terminate her contract. Later, the same commissioners voted to claw back tuition payments that the county paid for Bivins to attend management courses.

Intimate association. Thereafter, the employee sued the three commissioners. Against each of the commissioners, she brought a First Amendment retaliation claim under 42 U.S.C. § 1983. Specifically, she alleged that, by voting to take adverse employment actions against her based on her husband’s political activities, the commissioners had retaliated against her in violation of her First Amendment right to intimate association.

The district court denied the commissioners’ motion to dismiss, ruling that the employee had pleaded a plausible First Amendment violation because she alleged facts showing that each commissioner had voted to take adverse employment actions against her based on her husband’s political activities.

Qualified immunity. One of the commissioners filed an interlocutory appeal, arguing that the district court erred in denying her qualified immunity because she didn’t violate the employee’s clearly established First Amendment rights. The Eleventh Circuit agreed.

In the public-employment context, when a plaintiff asserts that her employer retaliated against her in violation of her First Amendment intimate-association right, she must allege: (1) that “the asserted right is protected by the Constitution;” (2) that “she suffered ‘adverse employment action’ for exercising the right;” and (3) that “the adverse employment action was taken in such a way as to infringe the constitutionally protected right.” But qualified immunity insulates government officials from personal liability so long as they were performing a discretionary function that did “not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

Burden shifting framework. Here, the initial burden was on the commissioner to show that she was performing a discretionary function. Because all agreed that she was, the burden shifted to the employee to show: (1) that the commissioner “violated a federal statutory or constitutional right;” and (2) that the unlawfulness of his conduct was clearly established at the time of the violation.

The Eleventh Circuit proceeded directly to the second prong because it was plain that the right was not clearly established. To be “clearly established,” the law must be “sufficiently clear that every reasonable official would understand that” the conduct is unlawful.

A plaintiff can show that the law was clearly established in any of three ways: (1) by pointing to case law with materially similar facts; (2) “a broad statement of principle within the Constitution, statute, or case law;” or (3) “conduct so egregious that a constitutional right was clearly violated, even in the total absence of case law.”

In this case, the employee failed to show—under any of these three methods—that the unlawfulness of the commissioner’s conduct was clearly established at the time of the alleged violation.

Case law. Supreme Court precedent instructs that, when a government employee accuses her employer of First Amendment retaliation, the court must apply fact-specific tests that weigh the individual’s First Amendment rights against the government’s interests. Because the Supreme Court hasn’t applied these fact-specific tests to an intimate-association case, its precedent failed to clearly establish that the commissioner’s conduct violated the law.

Further, case law from the Eleventh Circuit doesn’t clearly convey what particular facts would violate this right to intimate association. Because the Supreme Court, Eleventh Circuit and the Georgia Supreme Court have not decided any case materially similar to this one, the court concluded that the employee failed to show that the law was clearly established under the first method.

Broad statement of principle. Similarly, the law was not clearly established under the second method either. That method requires a plaintiff to “point to a broad statement of principle with the Constitution, statute, or case law that clearly establishes a constitutional right.” Here, Eleventh Circuit precedent makes clear that the First Amendment protects a right to intimate association, but it also counsels that, in order to determine whether an adverse employment action violates that right, the court must conduct a fact-specific inquiry. No case cited by the employee generated a broad statement of principle capable of alerting the commissioner that her conduct was unlawful.

Conduct clearly prohibited. Nor can the employee clearly establish the law under the third method, which requires a plaintiff to show that the conduct “was so clearly prohibited [at the time] that a reasonable [official] would have known of its unconstitutionality.” Under this method, the unconstitutionality of the official’s conduct must have been truly apparent. The conduct that the employee alleged in this case—adverse employment actions based on her husband’s political activities—did not rise to this level.

Because the employee’s complaint could not simply allege retaliation based on marriage, it must allege such retaliation that the law has clearly established a violation of the right to intimate association. Because the employee failed to do so here, the commissioner was entitled to qualified immunity.

The case is No. 23-13029.

Judge: Per curiam.

Attorneys: Joshua Kyle Brooks (Buckley Bala Wilson Mew) for Ramona Thurman Bivins. John Douglas Bennett (Freeman Mathis & Gary) for Felicia Franklin.

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