United States Court of Appeals, Eleventh CircuitMar 29, 2007
221 Fed. Appx. 899 (11th Cir. 2007)

No. 06-12184.

March 29, 2007.

George Weaver, Hollberg Weaver, LLP, Atlanta, GA, Mark A. Adelman, Deborah L. Dance, Cobb County Attorney's Office, Marietta, GA, for Defendant-Appellant.

Alysa Beth-Ann Freeman, Harlan S. Miller, III, Miller, Billips Ates, P.C., Atlanta, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 04-01074-CV-1-WSD.

Before HULL and MARCUS, Circuit Judges, and BARZILAY, Judge.

Honorable Judith M. Barzilay, Judge, United States Court of International Trade, sitting by designation.


In this interlocutory appeal, Appellant Tony Wheeler challenges the district court's denial of qualified immunity in a suit brought by Appellee Stacey Tatroe, Wheeler's former employee. Tatroe claims that Wheeler retaliated against her for constitutionally protected speech made while she worked as a Cobb County 9-1-1 emergency operator. The district court denied Wheeler's motion for summary judgment, finding that he was not entitled to qualified immunity at this stage of the litigation. On appeal, Wheeler contends that the adverse employment actions alleged by Tatroe were motivated at least in part by lawful considerations and that, therefore, he is entitled to qualified immunity under Stanley v. City of Dalton, 219 F.3d 1280, 1294-97 (11th Cir. 2000), and Foy v. Holston, 94 F.3d 1528, 1534-35 (11th Cir. 1996).

After thorough review of the record and having considered oral argument, we affirm. The district court correctly concluded that Wheeler is not entitled to qualified immunity at this stage of the litigation because the record does not indisputably indicate that the alleged adverse employment actions taken by Wheeler were motivated, at least in part, by lawful considerations. See Stanley, 219 F.3d at 1296 ("A defendant is entitled to qualified immunity under the Foy rationale only where, among other things, the record indisputably establishes that the defendant in fact was motivated, at least in part, by lawful considerations."); Johnson v. City of Fort Lauderdale, 126 F.3d 1372, 1379 (11th Cir. 1997) ("The holding in Foy rested primarily on the existence of an indisputable and adequate lawful motive. . . .").