Furthermore, though Plaintiff did not raise these cases in their briefing, the Eleventh Circuit has gone on to reaffirm this rule that taking adverse employment actions solely due to the intimate relationship status of a government employee burdens the First Amendment right of intimate association. See, e.g., Shahar v. Bowers, 114 F.3d 1097, 1107 (11th Cir. 1997); Lawson v. Curry, 244 F. App'x 986, 989 (11th Cir. 2007). The Eleventh Circuit even denied qualified immunity in such a case when a plaintiff was fired from her position at a jail because she was in an interracial relationship.
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 Fed.Appx. 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.
As a general matter, the right to be free from racial discrimination in the workplace, which includes discrimination based on interracial relationships, is clearly established in this Circuit. See Rioux v. City of Atlanta, 520 F.3d 1269, 1283 (11th Cir. 2008) (agreeing with the statement that "the right to be free from employment discrimination" is clearly established in this Circuit); Johnson v. City of Fort Lauderdale, 126 F.3d 1372, 1378 (11th Cir. 1997) ("[T]he right to be free from workplace discrimination and harassment on the basis of race ... [was] clearly established at the relevant times"); Bogle v. McClure, 332 F.3d 1347, 1355 (11th Cir. 2003) ("[T]here is no doubt that in May 2000, . . . it was clearly established that intentional discrimination in the workplace on account of race violated federal law.") (citation omitted); Lawson v. Curry, 244 F. App'x 986, 988 (11th Cir. 2007) ("Discrimination based on interracial relationships constitutes discrimination based on race." (citing Loving v. Virginia, 388 U.S. 1, 10-11 (1967))).
"'It is beyond doubt' that there is a federal equal protection right to be free from racial discrimination, that this right is clearly established, and that it extends into the employment context." Lawson v. Curry, 244 F. App'x 986, 988 (11th Cir. 2007) (citing Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1478 (11th Cir.1991)). Cunningham's claim that Moxley retaliated against him because of his race, and that Moxley did not retaliate against white employees who complained at School Board meeting sufficiently alleges Moxley violated Cunningham's clearly established right to be free from racial discrimination. Having determined the claims against Moxley should not be dismissed, the Court must determine whether to strike Cunningham's claims for punitive damages against her.
When there is not indisputable evidence an employer was motivated, at least in part, by lawful justifications, the law is clearly established that a public employer violates the Equal Protection Clause if he discriminates against an employee because of her race. See Bogle v. McClure, 332 F.3d 1347, 1355 (11th Cir. 2003); Lawson v. Curry, 244 F. App'x 986, 988 (11th Cir. 2007); Jolivette v. Arrowood, 180 F. App'x 883, 885-86 (11th Cir. 2006). Thus, Williford has not established that he is entitled to qualified immunity for his June 2013 decision not to promote Potter.
Despite the actions of its sister circuits, the Eleventh Circuit has not directly addressed the implications of Swierkiewicz and Crawford on the heightened pleading standard in section 1983 cases involving qualified immunity and has continued to uphold its earlier articulated heightened pleading standard. See Swann v. Southern Health Partners, 388 F.3d 834 (11th Cir. 2004) (decided after both Swierkiewicz and Crawford-El and reaffirming heightened pleading in section 1983 cases that do not involve municipalities or other parties not eligible for qualified immunity); see also Lawson v. Curry, 244 Fed. Appx. 986 (11th Cir. 2007) (reaffirming Swann); Weissman v. NASD, 500 F.3d 1293 (11th Cir. 2007) (Tjoflat, J., dissenting) ("The use of the so-called 'heightened pleading' requirement, though longstanding, continues to give rise to debate. Our cases on this topic are perhaps not the model of clarity, but at the very least, this circuit applies a heightened pleading standard in complaints alleging § 1983 claims against entities who may raise qualified immunity as a defense (e.g., government officials sued in their individual capacities).").
e majority of the United States Courts of Appeals reject a heightened pleading requirement for a Section 1983 claim against an individual defendant arguably entitled to qualified immunity. See Gene Martin Auto Sales, Inc. v. Davis, No. 2:07CV937-MEF, 2008 WL 1990003, 3 (M.D. Ala. May 5, 2008) ("The First, Second, Third, Sixth, Seventh, Eighth, Ninth, Tenth, and D.C. Circuits have rejected heightened pleading in the wake ofLeatherman, Swierkiewicz and Crawford-El. . . ."); see also Erickson v. Pardus, 127 S. Ct. 2197 (2007) (applying the pleading standard in Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007) to a Section 1983 claim against an individual defendant).But see Epps v. Watson, 492 F.3d 1240, 1242 (11th Cir. 2007);Swann v. So. Health Partners, Inc., 388 F.3d 834, 837 (11th Cir. 2004); Passmore Swann v. S. Health Partners, Inc., 388 F.3d 834 (11th Cir. 2004); Dalrymple v. Reno, 334 F.3d 991, 996 (11th Cir. 2003); Gonzalez v. Reno, 325 F.3d 1228, 1235 (11th Cir. 2003);Lawson v. Curry, 244 Fed. Appx. 986, 988 (11th Cir. 2007) (unpublished); Maldonado v. Snead, 168 Fed. Appx. 373, 379 (11th Cir. 2006) (unpublished); Weissman v. Nat'l Ass'n of Sec. Dealers, Inc., 500 F.3d 1293, 1309 (11th Cir. 2007) (Tjoflat, J., dissenting) ("The use of the so-called 'heightened pleading' requirement, though longstanding, continues to give rise to debate. Our cases on this topic are perhaps not the model of clarity, but at the very least, this circuit applies a heightened pleading standard in complaints alleging § 1983 claims against entities who may raise qualified immunity as a defense (e.g., government officials sued in their individual capacities.").