KRISTI K. DuBOSE, District Judge.
After due and proper consideration of the issues raised, and there having been no objections filed, the Report and Recommendation (Doc. 16) of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) and dated May 20, 2014, is
The facts are, briefly, as follows. Plaintiff Ann Langford is a 59 year-old Caucasian woman, residing in Hale County, Alabama, formerly employed as the Chief Clerk of the Hale County Probate Office (Doc. 1, ¶¶ 4, 8). On March 11, 2013, Defendant Crawford terminated Langford's employment without prior notice or hearing (Doc. 1, ¶¶ 7, 22-23); Langford's replacement was a younger Black woman (id at ¶ 28). Langford filed a grievance with the Commission challenging her termination; the grievance was denied on May 1, 2013 without a hearing (id. at ¶¶ 5, 33-34). Plaintiff appealed the denial to the Personnel Review Board,
On February 18, 2014, Langford filed this action, claiming that the previously-named Defendants: (1) violated her Fourteenth Amendment Due Process rights; (2) violated her Fourteenth Amendment Equal Protection rights; (3) violated her First Amendment rights to freedom of speech and political association; (4) discriminated against her because of her race; (5) discriminated against her because of her age; (6) discriminated against her because of her race;
The Court notes, initially, that "[w]hen considering a motion to dismiss, all facts set forth in the plaintiff's complaint `are to be accepted as true and the court limits its consideration to the pleadings and exhibits attached thereto.'" Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (quoting GSW, Inc. v. Long County, 999 F.2d 1508, 1510 (11th Cir. 1993)). In order to state a claim for relief, the Federal Rules of Civil Procedure state that a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The U.S. Supreme Court explained that the purpose of the rule was to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957).
Defendants first seek dismissal of a portion of Langford's third claim, a claim that Defendants violated her First Amendment right to freedom of political association.
Ala. Code § 12-13-14. The second statute states as follows:
Ala. Code § 12-13-15.
The Court notes that the chief clerk's responsibilities, listed in the first statute, do not include discretionary duties; specifically, three subsections of the first section of the statute preclude the clerk from performing certain tasks if the parties have a dispute. In the second statute, the chief clerk gains no responsibilities when the judge's position is vacant; rather, the clerk is allowed to order that whatever work arises—other than what the clerk already has the authority to do—be continued. These statutes do not provide support for the Defendants' argument that the chief clerk is the alter ego of the probate judge.
The Court further finds that the cases cited by Defendants do not lend support to their argument. In one such case, the Eleventh Circuit Court of Appeals held that a deputy sheriff is the alter ego of the sheriff. Terry v. Cook, 866 F.2d 373, 377 (11th Cir. 1989) (citing Mosely v. Kennedy, 17 So.2d 536, 537 (Ala. 1944)). The Terry Court further noted, though, that "[a]ny transaction within the scope of the sheriff's duties may be acted upon by his deputy," Terry, 866 F.2d at 377 (citing Ramsey v. Strobach, 52 Ala. 513, 515 (1875)).
Under Terry, the deputy can do anything the sheriff can do. However, the chief clerk is restricted from doing everything that the probate judge can do by statute. This does not further Defendants' argument.
Defendants also cite Underwood v. Harkins, 698 F.3d 1335, 1343-44 (11th Cir. 2012), cert. denied, ___ U.S. ___, 134 S.Ct. 99 (2013), in which the Eleventh Circuit Court of Appeals held that a deputy superior court clerk performed the identical tasks as the court clerk and that the clerk could dismiss the deputy clerk from that position for having run against the clerk in the political party's primary election. Again, however, the duties of the two positions were the same; that is not the circumstance in this action. More significant though is the fact that Underwood is a case based on Georgia law; Defendants have failed to demonstrate the relevance of Georgia law to this action.
Defendants' Motion to Dismiss (Doc. 7) is due to be denied as to Langford's third claim. Defendants have not even argued—much less demonstrated—that Langford has failed to set out the necessary facts to proceed with her claim that Defendants violated her First Amendment right to freedom of political association. Instead, Defendants have attempted to prove that Langford's claim is not viable as a matter of law. However, the laws brought forth to support their argument, if anything, provide support for Plaintiff's argument that this claim should not be dismissed.
Defendants also seek to have the Court dismiss Plaintiff's claim that her due process rights were violated. The first argument raised is that Langford did not have a property interest in her job (Doc. 10, pp. 6-9).
The United States Supreme Court has noted that the "Fourteenth Amendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576 (1972). The Court went on to hold that "[p]roperty interests [] are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Board of Regents, 408 U.S. at 577. The Court notes that "State law defines the parameters of a plaintiff's property interest for section 1983 purposes. `Whether state law has created a property interest is a legal question for the court to decide.'" Mackenzie v. City of Rockledge, 920 F.2d 1554, 1559 (11th Cir. 1991) (quoting Marine One, Inc. v. Manatee County, 877 F.2d 892, 894 (11th Cir. 1989), rehearing denied, 898 F.2d 1490 (11th Cir. 1990)).
As for Alabama law, the Alabama Supreme Court has stated the following:
Howard v. Wolff Broadcasting Corp., 611 So.2d 307, 310-11 (Ala. 1992), cert. denied, 507 U.S. 1031 (1993). The Alabama Supreme Court has gone on to say that
Hoffman-La Roche, Inc. v. Campbell, 512 So.2d 725, 728 (Ala. 1987) (citations omitted). However, the Hoffman-La Roche Court went on to hold that
Hoffman-La Roche, 512 So. 2d at 735. The Parties acknowledge that Langford was given a handbook by her employer (Doc. 10, p. 8; Doc. 13. pp. 3-4). The Court will review the handbook, entitled Hale County Personnel Policy, to determine if a binding unilateral contract was created (see Doc. 10, Exhibit A).
Doc. 13, Exhibit A. The Handbook also sets out a grievance procedure, allowing a disciplined employee to seek review of the disciplinary action by the Personnel Review Board and the County Commission (Doc. 13, Exhibit A, p. 8).
The Court finds that, for purposes of this Motion, these few passages indicate that a binding unilateral contract was formed under Hoffman-La Roche because of the following factors. The handbook discusses permanent versus probationary employees; though neither is defined, Langford was, presumably, a permanent employee as she was employed in her position for six years (Doc. 1, ¶ 8). Langford received an employee handbook and continued to work. As found in Hoffman-La Roche,
Hoffman-La Roche, 512 So. 2d at 736-37. With this finding, the Court further holds that Langford has established a property interest in her employment.
This finding brings the Court to Defendants' second argument with regard to this claim. That assertion is that even if Langford had a property interest in her continued employment, she cannot state a claim against Defendants for violating her due process rights (Doc. 10, pp. 9-11).
Langford's Complaint asserts that even though there was a grievance process set out in her employee Handbook, she appealed to the Hale County Commission and that it acted "without providing any notice [] that it was considering the grievance or providing her with an opportunity to defend herself" (Doc. 1, ¶ 34). She goes on to state that she timely appealed to the Personnel Review Board whose members were biased against her (Doc. 1, ¶¶ 35-36). In setting out the specific contours of her due process claim, Langford asserts that she was not "provided with notice or an opportunity to be heard on her grievance" (Doc. 1, ¶ 42).
The Court notes that step three of the grievance procedure, found in the Handbook, allows an employee to appeal a disciplinary action to the Personnel Review Board and indicates that the employee can attend the proceeding and have representation (Doc. 13, Exhibit A, p. 8). The written recommendation of that Board goes to the County Commission, at step four of the process, which accepts or modifies the recommendation and adopts it or rejects the recommendation altogether (Doc. 13, Exhibit A, p. 8).
While Langford's chronology of events does not correspond to the grievance procedure steps, there is a clear assertion that Lankford did not get to be heard on her grievance as provided for in the Handbook. The Court finds that Langford has asserted sufficient facts to demonstrate that she was denied the process offered by her employer following her termination. This does not, however, end the inquiry.
Defendants have staked their argument on McKinney v. Pate, 20 F.3d 1550, 1561 (11th Cir. 1994) (en banc), cert. denied sub nom. McKinney v. Osceola County Board of County Commissioners, 513 U.S. 1110 (1995), in which the Eleventh Circuit Court of Appeals held that a claim of bias, such as this, was a procedural due process claim—as opposed to a substantive due process claim—since "the County failed to provide one of the elements of procedural due process—an unbiased decisionmaker." The McKinney Court went on to hold that the plaintiff in that case had not stated a procedural due process claim under § 1983, however, because state law provided an adequate remedy through the Florida court system. McKinney, 20 F.3d at 1563-64.
Defendants argue that Alabama also provides a remedy at law through its courts (Doc. 10, p. 10). Indeed, the Eleventh Circuit Court of Appeals held that Alabama courts "review employment termination proceedings both to determine whether they are supported by substantial evidence and to see that the proceedings comport with procedural due process." Bell v. City of Demopolis, Alabama, 86 F.3d 191, 192 (1996) (citing Ex Parte Tuskegee, 447 So.2d 713 (Ala. 1984); Guinn v. Eufaula, 437 So.2d 516 (Ala. 1983)). In Alabama, a claimant can file a common law writ of certiorari to seek review of a perceived wrongful termination because of a due process violation. See Hicks v. Jackson County Commission, 990 So.2d 904, 912 (Ala. Civ. App. 2008). Accordingly, Defendants' Motion to Dismiss (Doc. 7) is due to be granted as to Langford's claim that she was denied due process in her post-termination proceedings because Langford has a remedy for her claim in the state courts.
However, the motion to dismiss Langford's claim regarding the defendants' failure to provide a pre-termination due process is due to be denied. Public employment affords employees with a property interest in their job certain minimal pre-termination due process rights. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985); see also Harrison v. Willie, 132 F.3d 679, 683-84 (11th Cir. 1998) (considering whether the plaintiff was denied a pre-termination hearing); McCoy v. Alabama Dep't of Corr., 427 F. App'x 739, 741 (11th Cir. 2011) (discussing an state employee's pre-termination due process rights); Ogburia v. Cleveland, 380 F. App'x 927, 929-30 (11th Cir. 2010) (discussing pre-termination due process separately from whether plaintiff had an adequate state remedy for his claim of post-termination due process right violation). Thus, if a plaintiff pleads sufficient facts "that suggest [s]he was denied any pre-termination hearing, [s]he could state a violation of a clearly established constitutional right." Haddler v. Walker Cnty., Ala., No: 6:14-CV-00586-LSC, 2014 WL 2465322, * 4 (N.D. Ala. May 30, 2014).
The due process that Loudermill calls for does not require that an employee be given a full evidentiary hearing.
Langford alleges that she was denied due process because Defendants terminated her employment without any explanation, notice, or hearing. In response, Defendants allege that the State of Alabama provides an adequate post-termination remedy for any deprivation of due process that may have occurred. In support of this argument, Defendants cite McKinney and Bell as controlling the issue.
The Defendants' argument, however, fails to take into consideration the fact that, if Langford has a vested property right, as a public employee she has certain pre-termination due process rights which cannot be addressed by post-termination processes. "In cases of public employment, the Supreme Court has recognized that termination without any pre-termination hearing is an independent violation of due process." Haddler, at *4. This being so, the Court finds that
Finally, Defendants seek this Court's ruling that Defendant Crawford is entitled to qualified immunity in his individual capacity (Doc. 10, pp. 12-15). The Court notes that although Defendants assert immunity on Plaintiff's First and Fourteenth Amendment claims (counts one and three), no argument has been made as to Langford's claim for a violation of her Equal Protection rights (count two).
"Government officials sued for acts committed in the course of their official duties may invoke the defense of qualified immunity. To be even potentially eligible for qualified immunity, the official has the burden of establishing that he was acting `within the scope of his discretionary authority.'" O'Rourke v. Hayes, 378 F.3d 1201, 1205 (11th Cir. 2004) (quoting Hartsfield v. Lemacks, 50 F.3d 950, 953 (11th Cir. 1995)). To make this determination,
O'Rourke, 378 F.3d at 1205 (quoting Holloman v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004)).
The Court notes that Langford makes no argument as to whether or not Defendant Crawford's discretionary duties included disciplinary action against her, including termination (see Doc. 13, p. 5). As such, the Court finds that his action was discretionary and will continue with the analysis.
With this finding, it is Langford's burden to demonstrate that Judge Crawford is not entitled to qualified immunity by showing "that the defendant violated a constitutional right, and that the right was clearly established at the time of the alleged violation." O'Rourke, 378 F.3d at 1206 (citing Holloman, 370 F.2d at 1266).
Storck v. City of Coral Springs, 354 F.3d 1307, 1317 (11th Cir. 2003) (internal citations omitted). The Storck Court went on to note that "`[u]nless a government agent's act is so obviously wrong, in the light of pre-existing law, that only a plainly incompetent [Defendant] or one who was knowingly violating the law would have done such a thing, the government actor has immunity from suit.'" Storck, 354 F.3d at 1317-18 (quoting Lassiter v. Alabama A & M University, Board of Trustees, 28 F.3d 1146, 1149 (11th Cir. 1994) (en banc).
The Court has reviewed the case law and found the following relevant discussion in a United States Supreme Court case:
Branti v. Finkel, 445 U.S. 507, 518-19 (1980).
Having already reviewed the Chief Clerk responsibilities, the Court will examine the duties of the Probate Judge. Statutory law sets them out to be as follows:
Ala. Code § 12-13-1.
The Court notes that there does not appear to be any duty requiring that the Clerk and Probate Judge be of the same political mind to fulfill their respective responsibilities. For this reason, under the guidance of Branti, Defendants' Motion to find that Defendant Crawford is entitled to qualified immunity is due to be denied as to Langford's third claim.
The same is true for Defendant Crawford's claim of qualified immunity for Langford's claim of a pre-termination due process rights violation. Loudermill clearly established that a public employee with a property right in her employment must be given notice and a hearing before she can be terminated. Defendant Crawford makes no argument that any pre-termination due process was provided to Langford.
In accordance with the foregoing analysis, it is
