Perceived Speech, No Conduct Required: Eleventh Circuit Clarifies Heffernan Applies to Public-Employee Retaliation Even Where the Employee Did Nothing

Introduction

This commentary analyzes the Eleventh Circuit’s unpublished, per curiam decision in Patricia Spurlin v. Floyd County, Georgia, No. 25-11242 (11th Cir. Nov. 7, 2025) (non-argument calendar). The case presents a focused question at the intersection of public-employment law and First Amendment retaliation doctrine: can a public employee state a First Amendment claim where the government employer retaliates based on a mistaken belief that the employee engaged in protected speech—even when the employee took no action at all that might have caused the employer’s mistake? The Eleventh Circuit answers yes, and further holds that this proposition was already clearly established by the Supreme Court’s decision in Heffernan v. City of Paterson.

The parties include plaintiff-appellant Patricia Spurlin, a temporary-but-long-term election clerk for the Floyd County Board of Elections and Registration, and defendants-appellees Floyd County, the Elections Supervisor (Akyn Beck) in her individual capacity, and the County Manager (Jamie McCord) in his official capacity. Spurlin alleged she was fired after Beck—angry about an anonymous complaint to county HR implicating a relative of Beck—mistakenly believed Spurlin was the anonymous complainant. Spurlin brought First Amendment retaliation claims under 42 U.S.C. § 1983 (against Beck and McCord) and a claim under the Georgia Whistleblower Act (against the County).

The district court dismissed the federal claims at the Rule 12(b)(6) stage, reasoning that qualified immunity barred the First Amendment claim against Beck because Spurlin had not alleged any speech or conduct by her that could have been misperceived as protected. The court likewise dismissed the official-capacity claim against the County Manager, and declined supplemental jurisdiction over the state-law claim. The Eleventh Circuit vacated and remanded, clarifying that under Heffernan the employer’s motive controls and no “affirmative conduct” by the employee is required to state a First Amendment retaliation claim for perceived speech.

Summary of the Opinion

The Eleventh Circuit vacates the dismissal and remands for further proceedings.
Holding on qualified immunity: It is clearly established law (since Heffernan v. City of Paterson, 578 U.S. 266 (2016)) that a public employee may bring a First Amendment retaliation claim based on an employer’s mistaken belief that the employee engaged in protected speech, even if the employee did not actually engage in any speech or any conduct causing the misperception. The employer’s motive is what matters.
Scope of Heffernan: The rule is not confined to political affiliation cases; it applies to free-speech retaliation claims generally.
Remand task on First Amendment claim against Beck: The district court must decide whether the perceived speech (the anonymous complaint) would be constitutionally protected under the Pickering framework if Spurlin had made it.
Official-capacity claim against McCord (i.e., the County): Because Spurlin adequately alleged a constitutional violation, the district court must reconsider the municipal-liability (Monell) elements. The panel also corrects the district court’s use of a “clearly established” rubric against the municipality; municipalities are not entitled to qualified immunity.
State-law claim: The district court should reassess supplemental jurisdiction over the Georgia Whistleblower Act claim on remand.

Factual and Procedural Background

According to the complaint (whose allegations must be accepted as true at the Rule 12(b)(6) stage), Spurlin worked as an elections clerk placed by a staffing agency (Express Employment) but supervised and controlled entirely by the Board of Elections. After Akyn Beck became Elections Supervisor, she hired (via Express) her fiancé’s brother, who allegedly kept irregular hours, at times failed to appear, and nonetheless reported—and had approved—full 45-hour timecards. Coworkers, including Spurlin, were concerned about fraud on the County.

Around March 14, 2023, Spurlin was warned Beck was “livid” about an anonymous complaint to County HR—allegedly concerning the relative’s timekeeping and oversight. Although Spurlin did not author the complaint, Beck met with Spurlin three days later and terminated her, telling her she had done “a great job” but was no longer needed. The Express Employment owner later asked Spurlin if she wrote the anonymous complaint and told her Beck was “livid” about it.

Spurlin sued for First Amendment retaliation (against Beck and McCord) and under the Georgia Whistleblower Act (against the County). The district court dismissed, holding qualified immunity protected Beck because Spurlin had not alleged any speech or action by her that could be misperceived as protected activity, and dismissing the municipal claim as derivative. The court declined supplemental jurisdiction over the state-law claim. Spurlin appealed.

Analysis

Precedents Cited and Their Influence

Heffernan v. City of Paterson, 578 U.S. 266 (2016). The cornerstone of the decision. Heffernan holds that a public employee can bring a First Amendment retaliation claim where the employer demotes or discharges the employee based on a mistaken belief the employee engaged in protected activity; the employer’s motive is dispositive. The Eleventh Circuit treats Heffernan as clearly establishing this principle years before Spurlin’s termination, and emphasizes that the focus is on “improper employer motive,” not on whether the employee undertook any conduct that was misperceived. The panel also notes other circuits have applied Heffernan to materially similar “perceived speech” scenarios (e.g., Sixth Circuit in DeCrane v. Eckart; Tenth Circuit in Bird v. West Valley City), reinforcing the scope and clarity of the rule.
Pickering v. Board of Education, 391 U.S. 563 (1968). Provides the framework for assessing whether public-employee speech is protected: balancing the employee’s rights as a citizen to comment on matters of public concern against the government employer’s interests in efficient operations. The Eleventh Circuit remands for the district court to decide whether the perceived speech (an anonymous HR complaint alleging timecard fraud and favoritism) would be protected under Pickering if Spurlin had made it.
Brannon v. Finkelstein, 754 F.3d 1269 (11th Cir. 2014). Sets out the elements of a First Amendment retaliation claim: (1) protected speech; (2) an adverse action likely to deter a person of ordinary firmness; and (3) causation. The panel invokes Brannon to define the prima facie test that will govern on remand.
Jarrard v. Sheriff of Polk County, 115 F.4th 1306 (11th Cir. 2024). Restates qualified immunity principles and reiterates that public employers enjoy some latitude under Pickering to regulate employee speech. Used to frame the qualified immunity inquiry and the need to evaluate protection under Pickering.
Gaines v. Wardynski, 871 F.3d 1203 (11th Cir. 2017) and Gates v. Khokar, 884 F.3d 1290 (11th Cir. 2018). These cases explain the three accepted methods to show a right is “clearly established”: materially similar precedent; a broader principle that controls; or an obvious violation. The panel applies the “broader principle” path, holding Heffernan’s rule plainly governs—no need for identical facts.
Other circuits citing Heffernan:
- Sixth Circuit: DeCrane v. Eckart, 12 F.4th 586 (6th Cir. 2021) (perceived speech retaliation actionable).
- Tenth Circuit: Bird v. West Valley City, 832 F.3d 1188 (10th Cir. 2016) (same).
- Eighth Circuit: Molina v. City of St. Louis, 59 F.4th 334 (8th Cir. 2023) (recognizing rule; timing precluded clearly-established status in that case).
- Ninth Circuit: Stilwell v. City of Williams, 831 F.3d 1234 (9th Cir. 2016) (employer’s perception controls).
- The panel also explains why contrary readings from unpublished decisions—such as Third Circuit’s Falco v. Zimmer and Tenth Circuit’s Avant v. Doke—do not undermine Heffernan’s applicability to free-speech cases.
Rodemaker v. City of Valdosta Board of Education, 110 F.4th 1318 (11th Cir. 2024) and McDowell v. Brown, 392 F.3d 1283 (11th Cir. 2004). These cases set out key principles of municipal (Monell) liability and clarify that official-capacity suits are suits against the entity; proof requires a constitutional violation, a policy or custom constituting deliberate indifference, and causation.
Brandon v. Holt, 469 U.S. 464 (1985) and Kimberly Regenesis, LLC v. Lee County, 64 F.4th 1253 (11th Cir. 2023). Establish that municipalities are not entitled to qualified immunity; thus, the district court erred in dismissing the official-capacity claim for lack of “clearly established” law, rather than analyzing Monell elements.
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) and O’Laughlin v. Palm Beach County, 30 F.4th 1045 (11th Cir. 2022). Cited to show the interrelationship between speech and associational rights; the Heffernan rule is not confined to political association.
Twombly standard and pleading posture: Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Eleventh Circuit applications (Moore v. Cecil, 109 F.4th 1352 (11th Cir. 2024); Otto Candies, LLC v. Citigroup Inc., 137 F.4th 1158 (11th Cir. 2025))—the court proceeds on well-pleaded factual allegations and requires plausibility, not proof, at the motion-to-dismiss stage.

Legal Reasoning

The panel begins with the undisputed premise that Beck acted within her discretionary authority when firing Spurlin, shifting the qualified-immunity analysis to whether (1) the facts alleged show a violation of a constitutional right, and (2) that right was clearly established at the time. The core issue is whether the First Amendment prohibits retaliation based on perceived protected speech even where the employee engaged in no conduct at all (speech or otherwise) that could have led to the employer’s mistake.

Relying squarely on Heffernan, the court answers yes. The First Amendment protects employees from adverse action taken “out of a desire to prevent the employee from engaging in political activity that the First Amendment protects”—and the Supreme Court expressly held that the employer’s mistaken belief does not defeat the claim. The Eleventh Circuit underscores two clarifications that directly reject the district court’s approach:

No “affirmative conduct” requirement by the employee. The district court read a line in Heffernan to suggest that an employee must have engaged in some conduct that was misperceived. The panel corrects this, explaining that the Supreme Court’s observation merely addressed the evidentiary burden of showing motive when the plaintiff did not, in fact, engage in the activity. It was not a substantive element. The focus remains on the employer’s retaliatory motive, not on employee conduct.
Application to speech cases. The panel rejects the argument that Heffernan is limited to political-association contexts. Heffernan itself involved a free-speech retaliation claim and discussed “protected speech” broadly. Its rationale—protecting employees and preventing chilled expression—applies equally to speech cases.

Having determined that perceived-speech retaliation is actionable even absent any employee conduct, the court emphasizes that public employers retain latitude under the Pickering framework. The perceived speech must be speech the First Amendment would have protected if engaged in by the employee. The panel does not decide that question here, instead remanding for the district court to evaluate whether an anonymous complaint to HR alleging timecard fraud and favoritism would qualify as protected speech (as citizen speech on a matter of public concern, balanced against the employer’s operational interests).

On the official-capacity claim against the County Manager (i.e., the County), the court clarifies a second doctrinal point. Municipalities cannot invoke qualified immunity. The district court therefore erred by disposing of the official-capacity claim on the ground that the right was not “clearly established.” The correct inquiry is Monell liability: whether (1) there was a constitutional violation; (2) the County had a policy or custom amounting to deliberate indifference; and (3) that policy or custom caused the violation. Because the panel holds the complaint plausibly alleges a constitutional violation, it remands for the district court to consider the policy/custom and causation prongs in the first instance.

Impact and Forward-Looking Implications

This opinion carries notable practical and doctrinal consequences for public employers and employees within the Eleventh Circuit:

Eliminating a pleading hurdle. Plaintiffs alleging retaliation based on perceived speech need not allege they engaged in any speech or conduct misperceived by the employer. It suffices to allege facts plausibly showing the employer believed the employee engaged in protected speech and acted on that belief.
Broader reach beyond politics. Heffernan applies to garden-variety public-employee speech claims (e.g., whistleblowing about misuse of public funds). The employer’s retaliatory motive is the linchpin.
Emphasis on motive evidence. Because there may be no “own-conduct” evidence for plaintiffs to point to, allegations and evidence of employer motive become critical—temporal proximity, statements of decisionmakers, and the employer’s acknowledgement of perceived speech can all be highly probative at pleading and later stages.
Pickering analysis remains decisive. Plaintiffs must still show the perceived speech would have been protected: typically that the speech would have been made as a citizen (not pursuant to official duties) and addressed a matter of public concern, and that the employee’s speech interest outweighs operational interests. Allegations of government fraud and misuse of funds often implicate matters of public concern, though each case turns on facts.
Municipal-liability rigor. The official-capacity claim survives past the first hurdle, but plaintiffs must still plead and prove a County policy, custom, or final policymaker decision caused the violation. On remand, the district court may scrutinize whether any policy, widespread practice, ratification by a final policymaker, or failure to train/supervise can be plausibly inferred from the complaint.
Training and risk management for public employers. Agencies should train managers that retaliating against employees based on suspicions of whistleblowing or speech (even where mistaken) can trigger First Amendment liability. Robust, neutral investigative protocols and separation between HR complaint intake and employment decisions can mitigate risk.
State-law claims and supplemental jurisdiction. With the federal claims reinstated, state whistleblower claims are more likely to stay in federal court for coordinated adjudication.
Persuasive, not precedential. Although designated “Not for Publication,” this decision cogently synthesizes and applies Supreme Court and Eleventh Circuit law. It is persuasive authority that clarifies misunderstandings at the district-court level regarding Heffernan and municipal immunity.

Complex Concepts Simplified

First Amendment retaliation (public employees): A claim that the government punished an employee for engaging in constitutionally protected speech. The employee must show protected speech, an adverse action that would deter an ordinary person, and a causal link.
Perceived versus actual speech: Under Heffernan, what matters is the employer’s retaliatory motive. If the employer punishes an employee because it believes the employee engaged in protected speech, the First Amendment is implicated even if the employee did not actually speak.
Qualified immunity: Shields individual government officials from damages unless they violated a constitutional right that was clearly established at the time. A right can be clearly established by binding case law on materially similar facts, by a broader principle that obviously covers the conduct, or when conduct obviously violates the Constitution.
Pickering framework: Courts evaluate whether the speech would be protected by asking: was the employee speaking as a citizen (not pursuant to official job duties) on a matter of public concern, and does the employee’s interest in speaking outweigh the employer’s need for efficient public service? This case leaves that analysis for remand.
Monell liability (official-capacity suits): An official-capacity claim is a suit against the governmental entity. The entity is liable only if a constitutional violation occurred and it resulted from an official policy, widespread custom, or a decision by a final policymaker, or from deliberate indifference through failures like inadequate training or supervision. Municipalities cannot claim qualified immunity.
Vacated and remanded: The appellate court nullifies the lower court’s dismissal and sends the case back for further proceedings consistent with the appellate opinion.
Unpublished decision: In the Eleventh Circuit, unpublished opinions are non-binding but may be cited as persuasive authority. The binding rule invoked here comes from the Supreme Court’s Heffernan.

Key Questions for the District Court on Remand

Protected speech: Would an anonymous complaint to County HR about timecard fraud and nepotism, if made by Spurlin, be protected under the Pickering framework (i.e., as citizen speech on a matter of public concern that outweighs the County’s interests)?
Causation and motive: Do the timing, statements, and circumstances plausibly establish that Beck fired Spurlin because of the perceived protected speech?
Municipal policy/custom: Has Spurlin plausibly alleged that a County policy, custom, or final policymaker’s decision caused the constitutional violation (e.g., ratification, widespread practice, or deliberate indifference)?
Supplemental jurisdiction: In light of revived federal claims, should the district court exercise supplemental jurisdiction over the Georgia Whistleblower Act claim?

Conclusion

Spurlin v. Floyd County clarifies and reinforces an important facet of public-employee First Amendment law in the Eleventh Circuit: retaliation based on perceived protected speech is actionable—even where the employee did nothing that could have been misperceived. The employer’s motive is the constitutional touchstone. While the court leaves the Pickering analysis for the district court, it unmistakably rejects the notion that an employee must have taken “affirmative conduct” to trigger First Amendment protection in perceived-speech cases. Equally important, the opinion corrects a recurrent misstep in municipal-litigation practice: municipalities do not benefit from qualified immunity; plaintiffs must instead satisfy Monell’s policy/custom and causation requirements.

The decision will resonate beyond this case, serving as a clear signal to public employers that retaliatory responses to suspected whistleblowing or other protected expression—mistaken or not—risk constitutional liability. For litigants, it lowers an artificial pleading barrier and recalibrates focus onto employer motive, while leaving in place the rigorous protections for government operational interests embedded in the Pickering framework. The panel’s careful doctrinal housekeeping restores the correct inquiries for both individual and municipal defendants and sets the stage for a meaningful merits evaluation on remand.