Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—11th Cir.: Election clerk, fired after mistaken belief she made anonymous complaint, revives claims, (Nov 10, 2025)

By Todd Harrison, J.D.

Although the employee had taken no affirmative action to lead to her supervisor’s mistaken belief, the determinative issue ultimately turns on the employer’s motive.

Vacating a district court’s dismissal of a Georgia election clerk’s retaliation complaint and remanding for further proceedings, the Eleventh Circuit, in an unpublished opinion, determined that although the employee did not engage in the expressive activity for which she alleged she was fired, this was not enough to defeat her First Amendment claim. However, on remand, the employee must demonstrate that the perceived speech—an anonymous complaint made about her supervisor’s relative—was protected speech under Pickering (Spurlin v. Floyd County, No. 25-11242 (11th Cir. Nov. 7, 2025, unpublished)).

In May 2020, the employee began working as an election clerk for the Floyd County Board of Elections and Registration. She began reporting to a new supervisor in September 2022.

Relative hired. A couple of months after taking the position, the supervisor hired her fiancé’s brother as an equipment technician. The employee and others in the office noticed that he did not keep to the normal office hours like everyone else, often coming in late and leaving early or, in some cases, not showing up at all. Despite his frequent tardiness and absenteeism, he continued to report full 45-hour workweeks on his timecard, information the employee was privy to since she was tasked with delivering completed timecards at the end of the week.

Anonymous complaint. Sometime around March 14, 2023, another county employee warned the employee to “watch her back” because the supervisor was upset about an anonymous complaint concerning her relative. The employee had not sent the complaint but was aware that someone was considering doing so.

Termination. On March 17, the supervisor informed the employee that although she had been doing a great job, they did not need her anymore and were letting her go. The employee learned that her supervisor was under the impression that she had made the anonymous complaint, and that the complaint had made its way up the chain to the county manager.

Lawsuit. Subsequently, the employee sued her supervisor in her individual capacity and the county manager in his official capacity for First Amendment retaliation, and Floyd County for retaliation under the Georgia Whistleblower Act.

On the First Amendment claim against the employee’s supervisor, the district court concluded that qualified immunity was appropriate because the employee had not clearly alleged a constitutional violation. According to the court, existing law clearly established that an employer’s retaliation based on a mistaken belief an employee had engaged in protected activity was a constitutional violation only when the employee had engaged in some affirmative conduct leading to the mistake. Since the employee had not said or done anything to give rise to the supervisor’s alleged mistake, the court concluded she did not have a clearly established right against retaliation.

Similarly, the court concluded that because the employee had not demonstrated a violation of a clearly established constitutional right, her First Amendment claim against the county manager also failed. The court then dismissed the remaining state-law claim. This appeal followed.

Threshold question. At the outset, the appellate court explained that the threshold question in both retaliation claims is whether a government official violates the First Amendment when they retaliate against an employee based on a mistaken belief that the employee engaged in protected speech, even when the employee took no affirmative action to cause the mistaken belief. The court answered this question in the affirmative, refraining from reaching the remaining questions and directing the district court on remand to consider them in the first instance.

Heffernan. In the past, courts disputed whether a plaintiff could bring a claim based on their “perceived” rather than “actual” exercise of constitutional rights. But in Heffernan v. City of Paterson, 578 U.S. 266 (2016), the Supreme Court resolved that question, concluding that, “[w]hen an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U.S.C. § 1983—even if... the employer makes a factual mistake about the employee’s behavior.”

Heffernan concerned a police officer’s claim that he had been demoted for engaging in protected political activity. During a mayoral election season, fellow officers observed him picking up a campaign sign and engaging with campaign staff for a candidate his supervisors opposed. Unbeknownst to his supervisors, the officer was not actually involved in the campaign and was picking up the sign at his mother’s request.

According to the Supreme Court, the government’s reason for demoting the officer is what counts. Any retaliatory action like that at issue in Heffernan would “discourag[e] employees—both the employee discharged... and his or her colleagues—from engaging in protected activities,” said the Supreme Court, and consequently, ““a discharge or demotion based upon an employer’s belief that the employee has engaged in protected activity can cause the same kind, and degree, of constitutional harm whether that belief does or does not rest upon a factual mistake.”

Actual conduct not required. The supervisor contended that there were factors distinguishing this case from Heffernan such that Heffernan did not control and thus was not sufficiently particularized to the facts of this case to clearly establish the law. The supervisor highlighted that the officer in Heffernan actually engaged in conduct which was misperceived as protected activity, while the employee in this case had engaged in no protected conduct whatsoever. Although the district court was convinced by this argument, the court here was not.

Heffernan’s holding, explained the court, did not turn on whether the employee had engaged in actual conduct, but on “improper employer motive.” The language in Heffernan that the district court relied on, wherein the Supreme Court stated, “In a case like this one, the employee... will have to point to more than his own conduct to show an employer’s intent to discharge or to demote him for engaging in what the employer (mistakenly) believes to have been different (and protected) activities,” did not limit or qualify the Court’s holding. Instead, this language came from the Court’s explanation that employees might sometimes find it more difficult to prove unlawful retaliation in cases involving an employer’s mistake.

Neither the supervisor nor the district court identified a single court that has understood Heffernan the way they propose, observed the court here. Two other circuits have squarely addressed cases with parallel facts and have unquestioningly applied Heffernan. The court thus concluded that the fact that the employee did not engage in the expressive activity for which she alleged she was fired did not defeat her First Amendment claim.

Pickering. This conclusion, continued the court, did not end the qualified immunity analysis. The employee must demonstrate that the perceived speech—the anonymous complaint—was protected speech. Accordingly, the court here remanded to the district court to determine whether, under Pickering, the employee’s speech would have been constitutionally protected had she been the one to make the anonymous complaint.

County manager. Finally, the employee argued that because her supervisor’s alleged actions constituted unlawful First Amendment retaliation, her claim against the county manager should survive as well. The court agreed, remanding to the district court to assess whether the employee plausibly alleged that the municipality had a custom or policy that constituted deliberate indifference to that constitutional right, and whether that policy or custom caused the violation.

The case is No. 25-11242.

Judge: Per curiam.

Attorneys: Lisa Catherine Lambert (Law Office of Lisa C. Lambert) for Patricia Spurlin. Ryan Lynn Ray (Womack Rodham & Ray) for Floyd County.

Companies: Floyd County

Cases: IndividualRights CoverageLiability Discharge PublicEmployees Retaliation AlabamaNews FloridaNews GeorgiaNews