Maledy v. Hicks et al

Filing 33

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

MELISSA MALEDY,

)
)
Plaintiff,
)
)
v.
)
)
CITY OF ENTERPRISE, et al., )
)
Defendants.
)

CIVIL ACTION NO.
1:10cv254-MHT
(WO)

OPINION
Plaintiff
clerk,

Melissa

brings

this

Maledy,
lawsuit

a

former

against

city
the

revenue

following

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
defendants

(in

both

their

individual

and

official

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).

She further

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
through

42

U.S.C.

§

1983.

Jurisdiction

is

proper

pursuant to, among other provisions, 28 U.S.C. § 1331
(federal question).
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
pursuant

to

Rule

12(b)(6),

2

the

court

accepts

the

plaintiff's

allegations

as

true

and

complaint in the plaintiff's favor.
F.3d 1399, 1402 (11th Cir. 1993).

construes

the

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
draw

the

reasonable

inference

that

liable for the misconduct alleged.”
129 S. Ct. 1937, 1949 (2009).

the

defendant

is

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
acted unlawfully.”

Id. (quoting Twombly, 550 U.S. at

556.

3

II. BACKGROUND
The relevant facts as alleged by the plaintiff are as
follows.

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.
Between
admitted
abuse.

to

May
a

3

and

18,

2007,

rehabilitation

the

facility

plaintiff
for

substance

During this time, she was absent from work.

plaintiff

subsequently

completed

an

was

The

out-patient

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.
stated:

4

In the letter, Hicks

“As you know, I have been required to
conduct several internal investigations
related to your conduct.
The most
recent
incident
concerned
your
conviction for DUI. You were placed on
leave without pay while I considered
what disciplinary action should be
given.
“Based on the totality of circumstances
surrounding this matter and previous
multiple counseling, it is my conclusion
that you have committed the following
violations:
•

acts during or outside of duty
hours which are incompatible with
public service

•

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

5

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
individual

defendants

in

official capacities.

both

their

individual

and

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.
original

complaint

also

alleged

that

the

Her

defendants

violated her constitutional “right to privacy.”

She

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,
she

discovered

that

rehabilitation stay.

her

coworkers

knew

about

her

The plaintiff claimed that Hicks

6

must have told her coworkers about her rehabilitation
stay.
The plaintiff amended her complaint on April 22,
2011.

Her amended complaint adds the City of Enterprise

as a defendant and alleges two new statutory claims:
violations of the FMLA and the EPA.

Specifically, the

plaintiff asserts that her termination was in retaliation
for her two weeks of substance-abuse treatment.

She

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
counterparts.

The

amended

constitutional claims.

complaint

reasserts

her

However, the amended complaint

omits any reference as to who disclosed the plaintiff’s
confidential information; unlike the original complaint,
the

amended

complaint

does

not

allege

disclosed her substance-abuse problem.

7

that

Hicks

III. DISCUSSION
A.

Constitutional Claims

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.

1.

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,

8

without due process of law.”
§ 1.

U.S. Const. Amend. XIV,

“Procedural due process imposes constraints on

governmental decisions which deprive individuals of ...
‘property’

interests

within

Fourteenth Amendment.”
319, 332 (1976).

the

meaning

of

the

...

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
action?

If so, did the plaintiff receive sufficient

process regarding that deprivation?”

Ross v. Clayton

County, 173 F.3d 1305, 1307 (11th Cir. 1999).
framework,

the

plaintiff’s

complaint

Under this

must

plausibly

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
employee
‘existing

has

a

rules

property
or

interest

understandings

9

in
that

employment
stem

from

if
an

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
ordinances

and

mutually

explicit

create property interests.

understandings,

may

See Bishop v. Wood, 426 U.S.

341, 344 (1976); Ross, 173 F.3d at 1307.

The sufficiency

of any claim of entitlement, however, “must be decided by
reference to state law.”
entitlement

may

be

Bishop, 426 U.S. at 344.

supported

by

a

mutually

An

explicit

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.

She,

however, asserts that the defendants’ actions violated
the city’s employee handbook.

Under Alabama law, an

employee's

be

at-will

status

may

altered

when

“the

language contained in a[n] [employee] handbook can be

10

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
(Ala. 1987).

In Hoffman-La Roche, the Alabama Supreme

Court explained:
“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
necessary consideration.”
Id.
more

“‘An employer's general statements of policy are no
than

that

and

do

not

meet

the

contractual

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
11

disclaimer to negate any inference that the handbook
constitutes an enforceable contract.”

Id.

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
based.”

Green v. City of Hamilton Hous. Auth., 937 F.2d

1561, 1565 n.2 (11th Cir. 1991). See also Cleveland Bd.
of

Educ.

v.

Loudermill,

470

U.S.

532,

541

(1985)

(“‘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.

Hoffman-La

The complaint also fails to

show that the handbook created an obligation of good

12

faith and fair dealing or that the handbook contained
“substantive restrictions on the employer's discretion to
discharge.”

Green, 937 F.2d at 1565 n.2.

Further, her

complaint does not establish a property interest through
some other method, such as by reference to a statute or
local

ordinance.

In

short,

the

plaintiff’s

cursory

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
interest.

(Moreover, even assuming she had a property

interest, the plaintiff has failed to allege that this
property was taken without adequate process.)

Because

the plaintiff has failed to plead a Fourteenth Amendment
procedural

due-process

claim,

dismissed against all defendants.

13

this

claim

will

be

2.

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.”

Padgett v.

Donald, 401 F.3d 1273, 1280 (11th Cir. 2005).

“First,

the right to privacy guards an individual's interest in
avoiding disclosure of certain personal matters.”

Id.

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
individual's

personal

“Second, it protects an

autonomy

in

making

certain

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.
14

Padgett, 401 F.3d at

contraception, and procreation.”
1280.

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
added).

Her complaint, however, does not contain factual

allegations

against

any

individual

defendant.

Her

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
Enterprise,

Alabama

problems.”

Am.

knew

about

Compl.,

her

Doc.

addiction/alcohol
No.

20,

¶

23.

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
problem;

she

information.

does

not

identify

the

source

of

the

Her reference to meeting with Hicks stops

15

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

information.

n.26 (11th Cir. 1991) (explaining that the scope of the
“right

to

disclosure
settled”).
factual

privacy
of

one’s

in

preventing

medical

the

condition”

non-consensual
is

“far

from

Because the plaintiff does not provide a

allegation

as

to

which

defendant,

if

any,

disclosed her confidential medical information, she has
failed to plead an essential element of her right to
privacy claim.
3. While not dispositive, the court notes that the
plaintiff’s amended complaint differs substantially from
her original complaint in this respect.
The original
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.”).
16

B.

FMLA

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
old position.

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.

The

FMLA provides that an action must be brought “not later
than

2

years

after

the

date

of

the

last

event

constituting the alleged violation for which the action
is brought.”

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

17

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
general

averment

trigger

the

as

to

willfulness

[FMLA’s]

is

three-year

sufficient

to

statute

of

limitations.”); Fed. R. Civ. P. 9(b) (“Malice, intent,
knowledge, and other conditions of a person’s mind may be
alleged generally.”).
Here, the “last event” for statute-of-limitations
purposes was the plaintiff’s termination on March 4,
2008.

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

18

1866 (42 U.S.C. § 1981) commenced when professor’s tenure
was denied not when his appeals process ended).

The

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.”

Davenport v.

United States, 217 F.3d 1341, 1344 (11th Cir. 2000).
Under

Fed.R.Civ.P.

pleading

relates

pleading

when

15(c)(1)(B),

back

...

the

to

the

an
date

amendment

“amendment
of

asserts

the
a

to

a

original
claim

or

defense that arose out of the conduct, transaction, or
occurrence set out–-or attempted to be set out-–in the
original pleading.”4

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
(continued...)

19

“Congress
relatively

intended

narrow

contemplates

Rule

15(c)

purpose....

that

parties

to

be

[W]hile

may

used

for

Rule

correct

a

15(c)

technical

deficiencies or expand facts alleged in the original
pleading,

it

does

not

permit

an

entirely

transaction to be alleged by amendment.”

different

Dean v. United

States, 278 F.3d 1218, 1221 (11th Cir. 2002).

The

“‘critical issue in Rule 15(c) determinations is whether
the original complaint gave notice to the defendant of
the

claim

now

being

asserted.’”

Marko

Capital

of

America, Inc. v. UBS AG, 543 F.3d 1254, 1260 (11th Cir.
2008) (quoting Davenport, 217 F.3d at 1345 n.8).
The

plaintiff’s

original

complaint

focused

exclusively on the defendants’ termination procedures and
the disclosure of her confidential medical information.
The

facts

presented

in

the

original

complaint

were

(...continued)

“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
15(c)(1)(B).
20

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.
Second,
adequacy

of

the

original

complaint

the

defendants’

challenged

termination

specifically with regards to notice.

the

procedures,

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

21

informed consent.

The plaintiff’s amended complaint

alleged negligence during the surgery and post-operative
Id. at 1131.

care.

The Eleventh Circuit Court of

Appeals held that the amendment did not “relate back”
because

the

“alleged
and

acts

of

involved

negligence
separate

occurred
and

at

different

times

distinct

conduct.

In order to recover on the negligence claim

contained in her amended complaint, [plaintiff] would
have

to

prove

completely

different

facts

than

would

otherwise have been required to recover on the informed
consent claim in the original complaint.”
Similarly,

the

plaintiff

here

would

Id. at 1132.

have

to

prove

“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
her.

22

Because the plaintiff’s FMLA claims do not “relate
back” to the original complaint, these claims are barred
by the statute of limitations.

C.

EPA

For similar reasons, the plaintiff’s EPA claim fails.
Like

the

FMLA,

the

EPA

has

a

two-year

statute

of

limitations for most claims and a three-year statute of
limitations

for

willful

violations.

See

29

U.S.C.

§ 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.”

Hodgson v.

Behrens Drug Co., 475 F.2d 1041, 1050 (5th Cir. 1973).
Accordingly, “each paycheck represents a fresh violation

23

commencing a separate limitations period.”

Morris v.

Wallace Cmty. College-Selma, 125 F. Supp. 2d 1315, 1341
(S.D. Ala. 2001) (Vollmer. J).
The plaintiff’s limitations period commenced upon her
last paycheck.

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
investigation.

Compl. Ex. A, Doc. No. 1-1.

Because the

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
is time-barred.

Indeed, in the brief the plaintiff filed

in opposition to the dismissal motions, she does not
suggest

that

there

is

evidence,

or

even

possible

evidence, that would support a further amendment to the
complaint to allege that her last pay check fell within
the limitations period.)

24

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.

The

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
gap.

Thus, the defendants were not on notice that any of

the

plaintiff’s

allegations

related

to

gender

discrimination or wages; nor were defendants on notice
that any type of wage comparison would be necessary in
this litigation.
Because “Congress did not intend Rule 15(c) to be so
broad as to allow an amended pleading to add an entirely
new

claim

based

on

a

different

set

of

facts,”

the

plaintiff’s EPA claim must be dismissed as untimely.
Dean, 278 F.3d at 1221.
*

*

25

*

Accordingly, for the above reasons, the defendants’
motions to dismiss will be granted and this lawsuit
dismissed.

As appropriate judgment will entered.

DONE, this the 26th day of March, 2012.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE