# Robin Joy Shahar v. Michael J. Bowers, Individually and in His Official Capacity as Attorney General of the State of Georgia > Court of Appeals for the Eleventh Circuit · May 30, 1997 · 114 F.3d 1097 URL: https://www.frixlaw.com/law-library/cases/9490324 ## Case - **Full name:** Robin Joy SHAHAR, Plaintiff-Appellant, v. Michael J. BOWERS, Individually and in His Official Capacity as Attorney General of the State of Georgia, Defendant-Appellee - **Court:** Court of Appeals for the Eleventh Circuit - **Decided:** May 30, 1997 - **Citations:** 114 F.3d 1097; 12 I.E.R. Cas. (BNA) 1582; 70 Empl. Prac. Dec. (CCH) 44,739; 1997 U.S. App. LEXIS 13069; 1997 WL 285973 - **Precedential status:** Published - **Opinion:** Dissent by Barkett - **Judges:** Hatchett, Tjoflat, Anderson, Edmondson, Cox, Birch, Dubina, Black, Carnes, Barkett, Godbold, Kravitch - **Cited by:** 69 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9490324 ## How later opinions describe it (automated extraction) - holding that to prevail under Pickering, a government employer need not “allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action” or make “a particularized showing of interference with… - holding that attorney general's interests in fostering a positive public image, avoiding potential conflicts of interest, and promoting internal morale and departmental cohesiveness outweighed would-be employee's interest in maintaining marriage-like relationship with a homose… - recognizing Umbehr held that Pickering provides “the appropriate standard” for determining whether a government contractor’s free speech rights were violated - holding that the United States Constitution protects from excessive state interference a woman’s decision with respect to breastfeeding her child - noting that the state Attorney General, who is an elected official, “may properly thresholds [for eligibility] legally. R24-37-4253-4254. 70 limit the lawyers on his professional staff to persons in whom he has trust” ## Opinion text BARKETT, Circuit Judge, dissenting, in which GODBOLD and KRAVITCH, Senior Circuit Judges, join: The majority opinion does not meet the constitutionally required process for determining when the government as employer may curtail a public employee’s First Amendment rights. It departs not only from Supreme Court precedent establishing that process, but from this circuit’s precedent in applying the process to analogous factual contexts. Since Pickering, the Supreme Court and several circuits (including this one) have applied its principles in several First Amendment contexts, including privacy, 1 free exercise of religion, 2 and freedom of association. 3 These cases make clear that while the balancing test is easier for the government to satisfy than the strict scrutiny standard used in the nonemployment context, it still affords significant protection from unwarranted government intrusion into an employee’s First Amendment interests. As Judge Godbold and Judge Kravitch so clearly demonstrate, notwithstanding its references to the Pickering test, the majority simply fails to apply the test in the instant case. Instead, the majority permits a government employer to support termination decisions predicated on the employee’s exercise of First Amendment rights with only a minimal and totally subjective rationale and without considering the rights of the employee in the balance. In effect, the majority grants overwhelming, if not complete, deference to the Attorney General’s subjective views. See Majority Op. at 1106 (“Whatever our individual, personal estimates might be, we ... cannot say that the Attorney General’s worries and view of the circumstances that led him to take the adverse personnel action against Shahar are beyond the broad range of reasonable assessments of the facts.”); Majority Op. at 1109 (“We must defer to Georgia Attorney General’s judgment about what Georgians might perceive unless his judgment is definitely outside of the broad range of reasonable views.”). The only purported support offered by the majority for its wholesale restructuring of Pickering appears to be its reading of the plurality opinion in Waters v. Churchill, 511 U.S. 661 , 114 S.Ct. 1878 , 128 L.Ed.2d 686 (1994). However, the sole issue in Waters was “whether the Connick test should be applied to what the government employer *1130 thought was said, or to what the trier of fact ultimately determines to have been said.” Id. at 667-68 , 114 S.Ct. at 1892 (emphasis added). Thus it simply addressed the method for resolving factual disputes as to whether the affected employee engaged in protected conduct. 4 Indeed, the Court’s reasoning in Waters supports Shahar’s position. The Court held that the facts as found by the employer after “objectively reasonable investigation” should establish whether the conduct (in that case, speech) was constitutionally protected. Id. at 683-84 , 114 S.Ct. at 1892 (Souter, J., concurring, summarizing plurality opinion) (emphasis added). Waters asserts Pickering’s principles and reiterates the necessity for constitutionally enforced processes to protect the rights of government employees. The Pickering test necessitates a careful, fact-intensive, structured inquiry to “balance the interests of the public employees, as citizens” in engaging in expression, “and the interest of the State as an employer, in promoting the efficiency of the public services it performs through its employees.” Stough v. Gallagher, 967 F.2d 1523, 1527 (11th Cir.1992)(internal quotations omitted). In granting overwhelming deference to an employer’s subjective decision to terminate, the majority ignores a well developed body of circuit precedent that applies the Pickering balancing test in analogous law enforcement contexts and establishes a workable balance between the employee’s exercise of First Amendment rights and measured deference to law enforcement officials. See Stough, 967 F.2d at 1523 ; McCabe v. Sharrett, 12 F.3d 1558 (11th Cir.1994); Waters v. Chaffin, 684 F.2d 833 (11th Cir.1982); McMullen v. Carson, 754 F.2d 936 (11th Cir.1985). Stough involved a § 1983 suit where a newly elected sheriff was sued after demoting a police officer who had campaigned for another candidate. On appeal, in balancing the competing interests, the court noted that the officer had engaged in political speech which deserves “special protection” from the First Amendment, that the officer had spoken during his off-duty hours, and that the expressions were not rude or insulting. Stough, 967 F.2d at 1529 . The court also noted the absence of actual evidence that the expression adversely affected the sheriffs work environment, and the fact that the sheriff had previously indicated that personal loyalty was not a prerequisite for the affected officer’s job. Id. at 1529 . In McCabe , the issue was whether a police chief could permissibly transfer a personal secretary who married a lower-level police officer. The court indicated that, under Pickering, “the employer’s interest will weigh more heavily in the Pickering balance the more closely the challenged employment action serves the employer’s interest in the efficient and effective functioning of the office.” McCabe, 12 F.3d at 1570 . The court noted that the police chief produced substantial evidence that “loyalty and keeping confidences are required for proper performance of the job” from which the personal secretary was transferred and his concerns about possible disloyalty were not merely subjective fears, but “objectively reasonable” as a matter of common experience. Id. at 1571-73 . Thus, the court afforded no deference to the police chiefs view, and conducted its balancing based on an objective assessment. In Waters v. Chaffin, the court considered whether a police chief could discipline a subordinate police officer for criticizing him in an off-duty conversation with another police officer. The court noted that the fact that “the employee who speaks out is a police officer does not mean that the balance is always struck in favor of the state. ‘Policemen, like teachers and lawyers, are not relegated to a watered-down version of constitu *1131 tional rights.’ ” Id. at 836 (quoting Garrity v. New Jersey, 385 U.S. 493, 500 , 87 S.Ct. 616, 620 , 17 L.Ed.2d 562 (1967)) (emphasis added). Although the court recognized that the law enforcement context justified allowing a police chief to act on reasonable predictions of harm, rather than actual evidence of harm, it also indicated that this rule is less appropriate when the chief officer and the affected officer do not work closely together, stating that “we will not allow a generalized concern to overshadow the realities of the case.” Chaffin, 684 F.2d at 839-40 . In addition, the court gave added weight to the fact that the subordinate’s expression occurred off-duty. Id. at 837-38 . Finally, as Judge Kravitch describes, the McMullen court considered whether a police chief could fire a low-level at-will clerical employee in the wake of strong community protests following an employee’s announcement on television that he was a recruiter for the Ku Klux Klan. In weighing the balance of interests, the court noted the uncontradicted evidence that black citizens would categorically distrust the sheriffs office if a known Klan member were allowed to remain on staff, and that the sheriff had “no less restrictive means of dealing with the problem.” McMullen, 754 F.2d at 939 . The court also noted that public perception of the Klan as a violent racist group was based on the reality of the Klan’s history, and that absent immediate action on the sheriffs part, “serious conflict was almost certain to occur.” Id. at 938-39 . The court then conducted an “independent and complete review of the record,” affording special weight to the task of a law enforcement agency, but not to the sheriffs assessment of what was reasonable. Id. at 940 . After conducting this review the court concluded that: [t]he reaction of a community cannot always dictate constitutional protections to employees. We hold only that a law enforcement agency does not violate the First Amendment by discharging an employee whose active participation in an organization with a history of violent activity, which is antithetical to enforcement of the laws by state officers, has become known to the public and created an understandably adverse public reaction that seriously and dangerously threatens to cripple the ability of the law enforcement agency to perform effectively its public duties. Id. at 940 . Instead of relying on the holdings in these cases, the majority references McMullen, Sims v. Metropolitan Dade County, 972 F.2d 1230 (11th Cir.1992), Kinsey v. Salado Independent School Dist., 950 F.2d 988 (5th Cir.1992) (en banc), Bates v. Hunt, 3 F.3d 374 (11th Cir.1993), and Pickering generally for the proposition that “government employees who have access to their employer’s confidences or who act as spokespersons for their employers, as well as those employees with some policy-making role, are in a special class of employees and might seldom prevail under the First Amendment in keeping their jobs when they conflict with their employers.” Majority Op. at 1103. However, the cases cited by the majority simply do not support this proposition. From McMullen , the majority draws the conclusion that a law enforcement official may act based on public perception and anticipated effect. But the majority ignores the fact that the McMullen court’s conjectures about future harm were based on present, actual adverse public reaction to the affected employee’s conduct. It also disregards the importance McMullen places on assessing the validity of public perceptions and the nature of the effect those perceptions would have on law enforcement. Indeed, McMullen supports the proposition that a government official cannot hide behind public perception as a means to enforce private prejudice. See also Palmare v. Sidoti, 466 U.S. 429, 433 , 104 S.Ct. 1879, 1882 , 80 L.Ed.2d 421 (1984)(“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”). Sims addressed the question of the quantum of evidence necessary to overcome qualified immunity with a Pickering-based claim. See Sims, 972 F.2d at 1236 . Because an individual seeking to overcome qualified immunity must show that an official has violated clearly established law, the Sims majority held that the plaintiff in that case had to *1132 make the extraordinary showing that “Pickering balancing would lead to the inevitable conclusion that the discharge of the employee was unlawful.” Id. at 1237 . To the extent that Sims is even relevant in other contexts, it does not stand for the broad proposition offered by the majority, since the case states only that “when the employee serves in a sensitive capacity that requires extensive public contact, the employee’s private speech may pose a substantial danger to the agency’s successful functioning.” Id. This assertion, of course, should not be shorn from its context — namely, a case in which the Pickering analysis was purposefully conducted with a “thumb” on the government side of the scale because of the plaintiffs extraordinary burden in overcoming qualified immunity, an issue not on appeal in this case. Kinsey v. Salado Indep. School Dist., 950 F.2d 988 (5th Cir.1992) {en banc), is also largely inapposite, as that Fifth Circuit case involved the authority of a school board to remove the superintendent of schools, a position second only to the school board itself in terms of policy-making authority. More particularly, Kinsey involved a conflict of political affiliation between the two highest ranking education policy makers in the county. It thus cannot be read as support for the notion that “employees with some policy-making role ... are in a special class of employees and might seldom prevail under the First Amendment,” Majority Op. at 1103 (emphasis added). The final case cited by the majority is Bates v. Hunt, 3 F.3d 374 (11th Cir.1993). Bates arose from the decision of the Alabama Governor to fire an at-will political appointee in his Office of Constituent Affairs for signing an affidavit supporting a disgruntled former employee who had sued the Governor. The court determined that the essence of the appointee’s job was to speak and act as a delegate of the Governor to his constituents. Bates, 3 F.3d at 378 . Concluding that the Governor was not required to let an adversary represent him, the court found that the Governor’s discharge of the appointee did not unconstitutionally burden the appointee’s speech rights. As in Kinsey , the court in Bates tightly connected the particular job functions of the affected employee to the grounds for dismissal, a task the majority here ignores. The political affiliation case law from the Supreme Court and this circuit simply cannot support the majority’s broad assertion that government employees with “some policy-making role” enjoy only minimal job security when “they conflict with their employers.” Majority Op. at 1103-04. In the leading political affiliation case, Branti v. Finkel, 445 U.S. 507 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 (1980), the Supreme Court squarely rejected a chief public defender’s attempt to terminate two disfavored assistant public defenders because they held confidential policy-making positions. In so ruling, the Court stated that “the ultimate inquiry is not whether the label ‘policy maker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti, 445 U.S. at 518 , 100 S.Ct. at 1294 . 5 Drawing an analogy to the current context, *1133 Branti teaches that the ultimate inquiry for balancing purposes is not the nature of the job Shahar was assigned to, but whether the Attorney General can demonstrate that Shahar’s intimate association hinders her ability to perform effectively the job of a staff attorney. The majority never considers how Shahar’s relatively low status in the Attorney General’s Office affects the balance, but instead implicitly treats all of the attorneys in the office as having equal responsibilities. It also overlooks the analysis of the district court in the Branti decision, which suggests that an assistant attorney’s exercise of policy making authority and access to confidential information is not always of the sort that lessens his or her protected interests. See supra note 5. Additionally, in the absence of any record evidence of “weighing” or “balancing” by the Attorney General, the majority attempts to provide after-the-fact reasons to support Bowers’s side of the scale. Referencing a controversy in Georgia over issues related to homosexuality and “the Attorney General’s involvement at the heart of that controversy” {Majority Op. at 1104 n. 16)(emphasis added), the majority cites to four state court decisions decided after Shahar’s termination (three of which did not involve the Attorney General’s office), and three short Attorney General opinion letters, also written after Shahar’s termination. However, the majority fails to mention post-termination evidence of Shahar’s apparently successful performance within the legal community as a staff lawyer for the City of Atlanta. 6 Similarly, the majority indicates that the public might reasonably conclude that Shahar engages in sodomy, and that such a belief would undermine the Department’s efforts to enforce Georgia’s “laws against homosexual sodomy.” Majority Op. at 1105. The relevant Georgia statute, however, does not define sodomy in terms of sexual orientation. 7 The public cannot reasonably assume therefore that homosexuals in the Attorney General’s office are more likely to engage in prohibited activity than any other member of that office. While overemphasizing the Attorney General’s concerns in the Pickering balance, the majority also discounts Shahar’s interests. The majority never expressly identifies Shahar’s claims that she has kept her relationship with her partner a largely private and decidedly low-key matter, and that she has not engaged in any conduct which is at odds with Georgia law. See Majority Op. at 1106-07. 8 Given the fact that it is not illegal in Georgia for two women to own a house in common, purchase insurance together or even exchange rings, it is difficult to understand how the fact that someone might discover these things could possibly affect the ability of the Attorney General to do his job effectively; the Attorney General is simply not charged with ensuring that his employees refrain from obtaining the blessing of their religious leaders prior to co-habitating in Georgia (which is essentially all Shahar has done). 9 Finally, I believe that the Attorney General has an evidentiary burden to offer eredi *1134 ble predictions of harm or disruption based on more than mere speculation. The Attorney General’s “worry about his office being involved in litigation in which Shahar’s special personal interest might appear to be in conflict with the State’s position” is simply not a reasonable basis upon which to expect disruption. First, the record contains no evidence that homosexual issues in general constitute a “special personal interest” for Shahar. Indeed, Shahar was intended for an assignment involving the review of death penalty cases. Moreover, even if Shahar has a “special personal interest” in homosexual rights, such an interest tells us nothing about its disruptiveness to her work environment. Surely the Attorney General’s office has lawyers who have a “special interest” in any number of topics: abortion, school desegregation, affirmative-action or rights for the disabled, for instance. When those issues arise and the Attorney General is forced to take a view, some attorneys may personally disagree with that view and may even ask not to work on the matter, but that does not establish that those views have been disruptive to the office as a whole. Absent hard evidence, it is difficult to imagine a court upholding, for example, an Attorney General’s assertion that he fired a black attorney because he believed (assumed?) that attorney’s “special interest” in desegregated schools would prove disruptive to the office. For these reasons, I respectfully dissent. . See Fyfe v. Curlee, 902 F.2d 401 (5th Cir.), cert. denied, 498 U.S. 940 , 111 S.Ct. 346 , 112 L.Ed.2d 310 (1990). . See Brown v. Polk County, 61 F.3d 650, 658 (8th Cir.1995)(en banc). . See Gregorich v. Lund, 54 F.3d 410 , 414 & n. 4 (7th Cir.1995); Boddie v. City of Columbus, Miss., 989 F.2d 745, 748 (5th Cir.1993); Hatcher v. Board of Pub. Educ. & Orphanage, 809 F.2d 1546, 1559 (11th Cir.1987). . In answering that question, the Waters plurality made two observations that the majority overlooks. First, the plurality stated that it did not believe that balancing must be applied only to the facts as the employer perceived them, without considering the reasonableness of the employer's conclusions. Id. at 1889. According to the plurality, “even in situations where courts have recognized the special expertise and special needs of certain decision makers, the deference to their conclusions has never been complete.” Id. Second, the plurality stated that "it may be unreasonable, for example, for the employer to come to a conclusion based on no evidence at all ... [and] likewise, it may be unreasonable for an employer to act based on extremely weak evidence when strong evidence is clearly available.” Id. . The Court also recounted the rationale the district court advanced to rebut the idea that the assistant public defenders were appropriately viewed as policy making, confidential employees subject to discharge solely on the basis of their political affiliations. According to the district court, although the assistants had broad responsibilities with respect to particular cases that were assigned to them, they had limited, if any, responsibility for the overall operation of the office. Branti, 445 U.S. at 511 , 100 S.Ct. at 1291 . "They did not act as advisors or formulate plans for the implementation of the broad goals of the office, and although they made decisions in the context of specific cases, they do not make decisions about the orientation and operation of the office in which they work." Id. (internal quotations omitted). The district court also noted that the assistants "did not occupy any confidential relationship to the policy making process, and did not have access to confidential documents that influenced policy making deliberations.” Id. Many of the same statements could be made about Shahar as a staff attorney. To the extent, then, that policy-making authority and confidentiality legitimately provide the Georgia Attorney General with a basis for deference in this case, it does not follow that all attorneys in his office have similar policy-making authority or similar confidential relationships with the Attorney General. . Moreover, to the degree that Georgians have opinions about homosexuality, the law suggests their opinions are at least mixed. In Georgia's largest city, Atlanta, for instance, elected officials have passed a municipal ordinance prohibiting discrimination on the basis of sexual orientation. See City of Atlanta v. McKinney, 265 Ga. 161 , 454 S.E.2d 517, 519 (1995). See also, In the Interest of R.E.W., 220 Ga.App. 861 , 471 S.E.2d 6 (granting gay father unsupervised visitation rights with his child), cert. denied, 267 Ga. 62 , 472 S.E.2d 295 (1996). . See Ga. Stat. § 16-6-2(a) (“A person commits the offense of sodomy when he or she performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.”). . Although McCabe and McMullen also involved off-duty conduct, other factors, not present here, weighed in the balance against the employee in those cases. . Georgia’s recently enacted ban on same-sex marriages does not alter this analysis. Even if we assume that the statute is constitutional, it simply states that individuals who are involved in same-sex unions are not entitled to the full panoply of benefits available to individuals who are involved in opposite-sex unions. See O.C.G.A. § 19-3-3.1. In so doing, the new statute implicitly acknowledges the right of same-sex couples to use the word ‘‘marriage” to describe their relationships. See O.C.G.A. § 19-3-3.1(b) ("No marriage between persons of the same sex shall be recognized as entitled to the benefits of marriage.”) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9490324. Public record. Not legal advice.