Maledy v. Hicks et al
OPINION. Signed by Honorable Judge Myron H. Thompson on 3/26/2012. (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
CITY OF ENTERPRISE, et al., )
CIVIL ACTION NO.
defendants: the City of Enterprise, Alabama; City Clerk
and Treasurer Steven Hicks; City Mayor Kenneth Boswell;
and City Councilors William Cooper, Tommy Johnson, Jr.,
Kirk Donaldson, Wallace Miller, Jr., and Paul Russell.
The plaintiff claims that the city and all the individual
capacities) violated her rights under the Family and
Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-54, and the
Equal Pay Act (EPA), 29 U.S.C. § 206(d).
claims that the city and all the individual defendants
(again in both their individual and official capacities)
violated her due-process rights and her federal “right to
privacy” under the Fourteenth Amendment, as enforced
pursuant to, among other provisions, 28 U.S.C. § 1331
Now before the court are motions to dismiss filed by
all defendants, who argue, as to all claims, that the
plaintiff has failed to state a claim against them upon
which relief can be granted, Fed. R. Civ. P. 12(b)(6).
The defendants also contend that her two statutory claims
and her “right to privacy” claim are barred by the
statute of limitations.
For the reasons set forth below,
the court grants the motions to dismiss.
I. MOTION-TO-DISMISS STANDARD
In considering a defendant's motion to dismiss filed
complaint in the plaintiff's favor.
F.3d 1399, 1402 (11th Cir. 1993).
Duke v. Cleland, 5
Generally, to survive
a motion to dismiss and meet the requirement of Fed. R.
Civ. P. 8(a)(2), a complaint need not contain “detailed
factual allegations,” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007), but rather “only enough facts to
state a claim to relief that is plausible on its face,”
id. at 570.
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
liable for the misconduct alleged.”
129 S. Ct. 1937, 1949 (2009).
Ashcroft v. Iqbal,
“The plausibility standard
is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has
Id. (quoting Twombly, 550 U.S. at
The relevant facts as alleged by the plaintiff are as
On May 1, 2007, the plaintiff was charged with
driving under the influence (DUI).
The next day, her
husband called defendant Hicks and confidentially told
him about the plaintiff’s DUI charge.
The plaintiff also
called Hicks to inform him of the DUI charge and notify
him that she would be seeking medical help for alcoholism
and drug addiction.
During this time, she was absent from work.
rehabilitation program that required attendance every
night after work for a period of four weeks.
Approximately ten months later, on March 4, 2008,
Hicks issued a letter to the plaintiff giving her notice
that she would be terminated.
In the letter, Hicks
“As you know, I have been required to
conduct several internal investigations
related to your conduct.
conviction for DUI. You were placed on
leave without pay while I considered
what disciplinary action should be
“Based on the totality of circumstances
surrounding this matter and previous
multiple counseling, it is my conclusion
that you have committed the following
acts during or outside of duty
hours which are incompatible with
other acts that would be considered
inappropriate and/or non-conducive
to a safe and productive work
environment for City employees
Based on these findings, it is my
recommendation that your employment with
the City of Enterprise be terminated.”
Compl. Ex. A, Doc. No. 1-1.
The letter also informed the
plaintiff that she had a right to address these charges
at a pre-disciplinary hearing before Hicks and that she
could file subsequent appeals to the mayor as well as to
the city council.
The plaintiff’s final appeal was
denied by the city council on October 24, 2008.
On March 22, 2010, the plaintiff filed this lawsuit.
Her original complaint alleged two counts against the
She charged that the procedures
Hicks used to notify her that the city intended to
terminate her, as well as the procedures Hicks used to
terminate her, violated her due-process rights.
violated her constitutional “right to privacy.”
charged that she had informed Hicks that she had a
substance-abuse problem that would require her to spend
time in rehabilitation.
According to the plaintiff, she
was led to believe that this information would be held in
absolute confidence and that, upon her return to work,
The plaintiff claimed that Hicks
must have told her coworkers about her rehabilitation
The plaintiff amended her complaint on April 22,
Her amended complaint adds the City of Enterprise
as a defendant and alleges two new statutory claims:
violations of the FMLA and the EPA.
plaintiff asserts that her termination was in retaliation
for her two weeks of substance-abuse treatment.
further alleges that, upon her return from substance
abuse treatment, the defendants failed to restore her to
her old position.
As to the EPA violation, she alleges
that she made considerably less salary than her male
However, the amended complaint
omits any reference as to who disclosed the plaintiff’s
confidential information; unlike the original complaint,
disclosed her substance-abuse problem.
Although the plaintiff’s complaint is not clear as to
the constitutional bases for the relief sought, the court
discerns two theories for recovery: first, a ‘procedural’
due-process claim predicated on inadequate notice; and,
second, a ‘substantive’ due-process claim predicated on
an alleged violation of her right to privacy in her
confidential medical information.
The defendants seek
dismissal on a number of grounds, but the court need
address only their argument that the amended complaint
fails to plead sufficient facts to satisfy Fed.R.Civ.P.
8's plausibility standard.
Procedural Due Process
The plaintiff asserts a procedural due-process claim
under the Fourteenth Amendment.
The Due Process Clause
of the Fourteenth Amendment provides that a State shall
not “deprive any person of life, liberty, or property,
without due process of law.”
U.S. Const. Amend. XIV,
“Procedural due process imposes constraints on
governmental decisions which deprive individuals of ...
319, 332 (1976).
Mathews v. Eldridge, 424 U.S.
Analysis of procedural due-process
claims requires a dual inquiry: “Did the plaintiff have
a property interest of which he was deprived by state
If so, did the plaintiff receive sufficient
process regarding that deprivation?”
Ross v. Clayton
County, 173 F.3d 1305, 1307 (11th Cir. 1999).
allege two elements: (1) that she had a property interest
in her position as a revenue officer with the city; and
(2) that she did not receive sufficient process regarding
the deprivation of this property interest.
As to the plaintiff’s property interest, a “public
independent source such as state law create a legitimate
claim of entitlement.’”
Id. (quoting Bd. of Regents of
State Colleges v. Roth, 408 U.S. 564, 577-78 (1972)).
State statutes, rules, and regulations, as well as local
create property interests.
See Bishop v. Wood, 426 U.S.
341, 344 (1976); Ross, 173 F.3d at 1307.
of any claim of entitlement, however, “must be decided by
reference to state law.”
Bishop, 426 U.S. at 344.
understanding with the employer; a unilateral expectation
of continued employment is insufficient.
Id. at 345-47.
Here, the mere fact that the plaintiff was employed
by the City of Enterprise is not enough to establish that
she had a property interest in her position.
however, asserts that the defendants’ actions violated
the city’s employee handbook.
Under Alabama law, an
language contained in a[n] [employee] handbook can be
sufficient to constitute an offer to create a binding
unilateral contract” between the employee and employer.
Hoffman-La Roche, Inc. v. Campbell, 512 So. 2d 725, 735
In Hoffman-La Roche, the Alabama Supreme
“The existence of such a contract is
determined by applying the following
analysis to the facts of each case:
First, the language contained in the
handbook must be examined to see if it
is specific enough to constitute an
offer. Second, the offer must have been
communicated to the employee by issuance
of the handbook, or otherwise. Third,
the employee must have accepted the
offer by retaining employment after he
has become generally aware of the offer.
His actual performance supplies the
“‘An employer's general statements of policy are no
requirements for an offer.’” Harper v. Winston County,
892 So. 2d 346, 351 (Ala. 2004) (quoting Hoffman-La
Roche, 512 So. 2d at 731).
Further, “[i]f the employer
reserves in the employee handbook the right to change
policies unilaterally, its reservation operates as a
disclaimer to negate any inference that the handbook
constitutes an enforceable contract.”
In interpreting Alabama law on whether language in
handbooks can create a property interest, the Eleventh
Circuit Court of Appeals has stated that, “It is on the
substantive restrictions on the employer's discretion to
discharge, rather than on the procedural protections
provided, that the existence of a property interest is
Green v. City of Hamilton Hous. Auth., 937 F.2d
1561, 1565 n.2 (11th Cir. 1991). See also Cleveland Bd.
(“‘Property’ cannot be defined by the procedures provided
for its deprivation.”) (emphasis added).
The plaintiff’s complaint fails to establish that
language in the city’s employee handbook was “sufficient
to constitute an offer to create a binding unilateral
contract” between the city and the plaintiff.
Roche, 512 So. 2d at 735.
The complaint also fails to
show that the handbook created an obligation of good
faith and fair dealing or that the handbook contained
“substantive restrictions on the employer's discretion to
Green, 937 F.2d at 1565 n.2.
complaint does not establish a property interest through
some other method, such as by reference to a statute or
reference to the handbook does not establish that she had
a property interest in her job.
Consequently, the plaintiff has failed to plead a
crucial element of her claim: the basis for her property
(Moreover, even assuming she had a property
interest, the plaintiff has failed to allege that this
property was taken without adequate process.)
the plaintiff has failed to plead a Fourteenth Amendment
dismissed against all defendants.
Right to Privacy
The plaintiff also asserts a substantive due-process
claim under the Fourteenth Amendment predicated on an
alleged violation of her right to privacy.1
“[T]he Supreme Court has recognized two types of
interests protected by the right to privacy.”
Donald, 401 F.3d 1273, 1280 (11th Cir. 2005).
the right to privacy guards an individual's interest in
avoiding disclosure of certain personal matters.”
Courts in this circuit refer to this interest as the
“right to confidentiality.”
Plante v. Gonzalez, 575 F.2d
1119, 1132 (5th Cir. 1978).2
“Second, it protects an
important decisions, such as those involving marriage,
1. It does not appear from the amended complaint
that the plaintiff is alleging a state claim of invasion
of privacy under Alabama law. See Johnston v. Fuller,
706 So. 2d 700 (Ala. 1997).
2. In Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981) (en banc), the Eleventh Circuit
adopted as binding precedent all of the decisions of the
former Fifth Circuit Court of Appeals handed down prior
to the close of business on September 30, 1981.
Padgett, 401 F.3d at
contraception, and procreation.”
The plaintiff’s claim is predicated on the first
strand of the right to privacy: her interest “in avoiding
disclosure of certain personal matters.” Id. (emphasis
Her complaint, however, does not contain factual
factual allegation is as follows: “While this hearing was
confidential with her supervisor, Defendant(s) Steven
Hicks, everyone at City Hall and the city government in
Significantly, the plaintiff does not allege that any
individual defendant, or the city itself, disclosed her
confidential medical information. She merely states that
other individuals found out about her substance-abuse
Her reference to meeting with Hicks stops
short of alleging that he was the person who actually
leaked her confidential medical information.3
In the absence of an allegation of disclosure by a
defendant, the court need not address the metes and
bounds of a right to privacy in confidential medical
See Harris v. Thigpen, 941 F.2d 1495, 1513
n.26 (11th Cir. 1991) (explaining that the scope of the
Because the plaintiff does not provide a
disclosed her confidential medical information, she has
failed to plead an essential element of her right to
3. While not dispositive, the court notes that the
plaintiff’s amended complaint differs substantially from
her original complaint in this respect.
complaint alleged that Hicks disclosed her confidential
medical information. Compl., Doc. No. 1, at 5 (“Since
she had only told the Defendant, Steven Hicks, in his
capacity of being her supervisor, Plaintiff contends that
the Defendant, Steven Hicks, violated her right to
privacy while acting under the color of state or
territorial law as a municipal employee.”).
The plaintiff asserts two interrelated FMLA claims.
First, she claims alleges that, after returning from her
FMLA-protected leave (her two-week stay in the substanceabuse program), the defendants did not restore her to her
Second, she claims that she was terminated
ten months later in retaliation for taking medical leave.
The defendants respond that the plaintiff’s FMLA
claims are barred under the statute of limitations.
FMLA provides that an action must be brought “not later
constituting the alleged violation for which the action
29 U.S.C. § 2617(c)(1).
If an employer’s
violation was willful, the statute of limitations is
extended to three years.
Id. § 2617(c)(2).
The court construes the plaintiff’s amended complaint
as alleging a willful violation.
Am. Compl., Doc. No.
20, ¶ 24 (“Defendant(s) unlawful conduct was committed
with malice or reckless indifference to the federally
See also Edwards
protected rights of the Plaintiff.”).
v. Ford Motor Co., 179 F. Supp. 2d 714, 719 (W.D. Ky.
2001) (Heyburn, J.) (“Federal courts do recognize that a
limitations.”); Fed. R. Civ. P. 9(b) (“Malice, intent,
knowledge, and other conditions of a person’s mind may be
Here, the “last event” for statute-of-limitations
purposes was the plaintiff’s termination on March 4,
Urrutia v. BNSF Railway Co., 2010 WL 4259246, *4-5
(W.D. Wash. Oct. 22, 2010) (Martinez, J.) (concluding
under the FMLA that termination date, not date when
appeals ended, was “last event”).
Cf. Delaware State
College v. Ricks, 449 U.S. 250, 259 (1980) (holding that
statute of limitations periods for claims under Title VII
of the Civil Rights Act of 1964, as amended (42 U.S.C.
§§ 1981a, 2000e to 2000e–17), and the Civil Rights Act of
1866 (42 U.S.C. § 1981) commenced when professor’s tenure
was denied not when his appeals process ended).
plaintiff’s FMLA claims were first raised in her amended
complaint on April 22, 2011.
Because she filed her
amended complaint over three years after her termination,
her FMLA claims are barred unless they “relates back” to
her original complaint filed on March 22, 2010.
“‘Relation back’ causes an otherwise untimely claim
to be considered timely by treating it as if it had been
filed when the timely claims were filed.”
United States, 217 F.3d 1341, 1344 (11th Cir. 2000).
defense that arose out of the conduct, transaction, or
occurrence set out–-or attempted to be set out-–in the
4. Because the plaintiff’s amended complaint added
the City of Enterprise as a defendant, she also needs to
satisfy Rule 15(c)(1)(C)’s notice requirements for
deficiencies or expand facts alleged in the original
transaction to be alleged by amendment.”
Dean v. United
States, 278 F.3d 1218, 1221 (11th Cir. 2002).
“‘critical issue in Rule 15(c) determinations is whether
the original complaint gave notice to the defendant of
America, Inc. v. UBS AG, 543 F.3d 1254, 1260 (11th Cir.
2008) (quoting Davenport, 217 F.3d at 1345 n.8).
exclusively on the defendants’ termination procedures and
the disclosure of her confidential medical information.
“relation back” of amendments to any new defendant. The
court does not reach this issue as it concludes that the
plaintiff’s amendments do not relate back under Rule
targeted to those claims.
Given this background, the
defendants lacked notice of the plaintiff’s FMLA claims
for two reasons.
First, the original complaint does not mention the
plaintiff’s being demoted following her two-week stay at
the rehabilitation center.
This claim raises distinct
legal considerations under the FMLA and necessitates
additional factual inquiries into what positions the
plaintiff had before and after her FMLA leave.
specifically with regards to notice.
By contrast, the
plaintiff’s FMLA claims relate to the substantive reasons
for her termination.
A retaliation claim under the FMLA
goes to the motive behind the plaintiff’s termination,
not the notice she was given.
The court finds Moore v. Baker, 989 F.2d 1129 (11th
Cir. 1993), instructive.
There, a plaintiff’s original
complaint brought a claim against a surgeon for lack of
The plaintiff’s amended complaint
alleged negligence during the surgery and post-operative
Id. at 1131.
The Eleventh Circuit Court of
Appeals held that the amendment did not “relate back”
In order to recover on the negligence claim
contained in her amended complaint, [plaintiff] would
otherwise have been required to recover on the informed
consent claim in the original complaint.”
Id. at 1132.
“completely different facts” to establish either of her
FMLA claims as compared to her constitutional claims.
The plaintiff would have to prove facts related to her
demotion as well as the defendants’ motive in terminating
Because the plaintiff’s FMLA claims do not “relate
back” to the original complaint, these claims are barred
by the statute of limitations.
For similar reasons, the plaintiff’s EPA claim fails.
limitations for most claims and a three-year statute of
§ 255(a); Alvarez Perez v. Sanford-Orlando Kennel Club,
Inc., 515 F.3d 1150, 1164 (11th Cir. 2008) (“[T]he FLSA’s
statute of limitations and liquidated damages provisions
apply to EPA claims.”).
As with the plaintiff’s FMLA
claims, the court construes the amended complaint in her
favor as alleging a willful violation.
“Sex-based, discriminatory wage payments constitute
a continuing violation of the Equal Pay Act.”
Behrens Drug Co., 475 F.2d 1041, 1050 (5th Cir. 1973).
Accordingly, “each paycheck represents a fresh violation
commencing a separate limitations period.”
Wallace Cmty. College-Selma, 125 F. Supp. 2d 1315, 1341
(S.D. Ala. 2001) (Vollmer. J).
The plaintiff’s limitations period commenced upon her
However, she was terminated on March 4,
2008, and Hicks’s letter makes clear that the plaintiff
had been on leave without pay pending a disciplinary
Compl. Ex. A, Doc. No. 1-1.
plaintiff’s amended complaint was filed on April 22,
2011, it is past the three-year statute of limitations
period for a willful EPA claim.
(The plaintiff’s amended
complaint is deficient of allegations to counter the
picture the amended complaint paints that the EPA claim
Indeed, in the brief the plaintiff filed
in opposition to the dismissal motions, she does not
evidence, that would support a further amendment to the
complaint to allege that her last pay check fell within
the limitations period.)
Like her FMLA claims, the plaintiff’s untimely EPA
claim may be saved if it “relates back” to the original
complaint, which was filed on March 22, 2010.
original complaint focused exclusively on the plaintiff’s
alcoholism and the defendants’ termination procedures and
alleged disclosure of confidential medical information.
It does not refer to any gender discrimination or pay
Thus, the defendants were not on notice that any of
discrimination or wages; nor were defendants on notice
that any type of wage comparison would be necessary in
Because “Congress did not intend Rule 15(c) to be so
broad as to allow an amended pleading to add an entirely
plaintiff’s EPA claim must be dismissed as untimely.
Dean, 278 F.3d at 1221.
Accordingly, for the above reasons, the defendants’
motions to dismiss will be granted and this lawsuit
As appropriate judgment will entered.
DONE, this the 26th day of March, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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