Poindexter v. Department of Human Resources et al

Filing 65

ORDER that Defendants' Motion for Reconsideration and Amended Motion for Reconsideration 54 , 57 are DENIED; a pretrial conference is scheduled for September 20, 2013, in the Frank M Johnson, Jr. U. S. Courthouse, One Church Street, Montgom ery, Alabama. This cause is set for trial during the term of court commencing on October 21, 2013, in Montgomery, Alabama. The Uniform Scheduling Order 22 otherwise remains in effect. Signed by Chief Judge William Keith Watkins on 6/14/2013. (jg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JENNIFER POINDEXTER,
Plaintiff,
v.
ROSA MICKLES, VONCILE
JACKSON, KELLY LEVER,
LOUIS HOLT, and JACKIE
GRAHAM,
Defendants.

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CASE NO. 2:12-CV-327-WKW
[WO]

ORDER
Defendants filed a Motion for Reconsideration and an Amended Motion for
Reconsideration (Docs. # 54, 57) asking the court to reconsider its earlier order (Doc.
# 53) to the extent it denied Defendants’ motions for summary judgment. Defendants’
motions and Plaintiff’s response (Doc. # 63) are currently before the court. After
careful – and much – deliberation, the motion is due to be denied.
The court’s order on Defendants’ motions for summary judgment sets out the
relevant factual and procedural background at length. (Doc. # 53.) For the purposes
of this order, it suffices to say that – construing the disputed evidence in the light most
favorable to Plaintiff – there are genuine questions of material fact surrounding
Plaintiff’s resignation and the conversation between her and Defendants Louis Holt,

Kelly Lever, and Rosa Mickles on April 9, 2010. Those unresolved factual questions
prevent the court from concluding, as a matter of law, that Plaintiff resigned
voluntarily, rather than being constructively discharged. Consequently, it is as though
Plaintiff were terminated without a hearing.

On this basis, the court denied

Defendants’ motions for summary judgment with respect to Plaintiff’s procedural due
process claim.
Defendants, in their motion for reconsideration (Doc. # 57), ask the court to rule
that Defendants did not deprive Plaintiff of her procedural due process rights – even
if she was terminated without a hearing – because adequate state remedies exist to
redress the deprivation. “[O]nly when the state refuses to provide a process sufficient
to remedy the procedural deprivation does a constitutional violation actionable under
section 1983 arise.” McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994). Courts
have interpreted that rule to mean that where state law provides an administrative
appeals process or allows an action in state court – including extraordinary remedies
such as petitions for certiorari or mandamus – a claim in federal court for deprivation
of procedural due process rights is not cognizable. E.g., Wells v. Columbus Technical
Coll., No. 12-13272, 2013 WL 692737, at *3 (11th Cir. Feb. 27, 2013); Donnell v. Lee
Cnty. Port Auth., No. 12-14044, 2013 WL 563168, at *1 (11th Cir. Feb. 15, 2013);
Cotton v. Jackson, 216 F.3d 1328, 1333 (11th Cir. 2000); Horton v. Bd. of Cnty.
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Comm’rs, 202 F.3d 1297, 1300 (11th Cir. 2000); Hicks v. Jackson, 374 F. Supp. 2d
1084, 1092–93 (N.D. Ala. 2005). The existence of adequate state procedures prevents
a federal claim regardless of whether a plaintiff takes advantage of them. Horton, 202
F.3d at 1300. However, none of these are constructive discharge cases, and the nature
of constructive discharge undermines Defendants’ argument.
Plaintiff insists her resignation was forced and therefore a constructive
discharge. The issue is whether Alabama provides adequate process to correct a
termination that occurs constructively, in the absence of a policy addressing the appeal
of constructive terminations. Plaintiff points out that, because she resigned, there was
no process available – the State Personnel Board’s administrative appeals process does
not contemplate an appeal of any resignation, even an involuntary one. (See Doc. #
63-1 (refusing to entertain Plaintiff’s appeal of her resignation to the State Personnel
Board).) Moreover, there was no final decision of the agency to be appealed,
frustrating Alabama’s statutory scheme for judicial review of agency decisions. Ala.
Code § 41-22-20(a).
After McKinney announced the adequate state process rule, the Eleventh Circuit
decided Hargray v. City of Hallandale, 57 F.3d 1560 (11th Cir. 1995). In Hargray,
the Eleventh Circuit implicitly adopted the position of other circuits that an
involuntary resignation brought on by duress or misrepresentation is a deprivation of
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procedural due process. Id. at 1568 (acknowledging “two situations in which an
employee’s resignation will be deemed involuntary, and thus a deprivation of due
process” – coercion and misrepresentation); (see also Doc. # 53 at 10–14 (analyzing
coercion and misrepresentation theories of constructive discharge based on Hargray
and its progeny).) A number of courts in this circuit have applied that holding,1 and
it is clearly established law.2
Allowing Plaintiff’s constructive discharge-based due process claim is
consistent with the Supreme Court of the United States’s precedent in Parratt v.
Taylor, 451 U.S. 527, 543–44 (1981), and Hudson v. Palmer, 468 U.S. 517, 533

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See, e.g., Rademaker v. Scott, 350 F. App’x 408, 411 (11th Cir. 2009) (remarking that
an involuntary termination implicates due process); Moorer v. City of Montgomery, 293 F.
App’x 684, 690 (11th Cir. 2008) (“If, on the other hand, the plaintiff’s resignation was so
involuntary that it amounted to a constructive discharge, it must be considered a deprivation by
the city action triggering the protections of the due process clause.” (quoting Hargray, 57 F.3d at
1567) (alterations omitted)); Hughes v. Ala. Dep’t of Pub. Safety, 994 F. Supp. 1395, 1404–05
(M.D. Ala. 1998) (“The Eleventh Circuit has clearly recognized that a constructive discharge
may occur when a resignation from public employment that has been requested by an employer
is sufficiently involuntary to trigger the protections of the due process clause.”).
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Defendants stake their claim to qualified immunity on the absence of a deprivation
because they argue mandamus is an adequate remedy and the availability of an adequate remedy
means there is no deprivation, but they offer no analysis or authority supporting their apparent
presupposition that mandamus relief would be available to Plaintiff. Defendants cite Hicks v.
Jackson County Comm’rs, where the district court found that a county employee – terminated
after what he alleged was a procedurally deficient hearing – was not deprived of due process
because certiorari, not mandamus, was an adequate state procedure in Alabama. 374 F. Supp. 2d
at 1092. Hicks was not a constructive discharge case, and certiorari may be an adequate
procedure when there is an agency decision to challenge, but it offers little relief when there is
no decision. There being no argument to the contrary, and the court being aware of no such
binding authority, the constitutional violation based on Hargray is clearly established, and
Defendants are not entitled to qualified immunity.
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(1984). Where the allegation is that a defendant acted pursuant to established policy
or in the absence of any policy and the employee had a protected property interest in
her employment, a procedural due process violation arising from a termination
without notice and an opportunity to be heard is complete at the moment of
termination. Hicks, 374 F. Supp. 2d at 1091. In such cases, a federal cause of action
is available irrespective of any state post-deprivation remedies. Id.
Plaintiff alleges Defendants forced her to resign by – among other things –
threatening criminal prosecution. In the apparent absence of any policy prohibiting
coercive or misleading tactics meant to induce resignation and in view of the Eleventh
Circuit’s precedent on point, specifically Hargray and its progeny, this allegation of
constructive discharge supports a claim for deprivation of Plaintiff’s procedural due
process rights for the reasons set out in the court’s order on Defendants’ motions for
summary judgment. (Doc. # 53.)
This result comports with Patsy v. Board of Regents, 457 U.S. 496, 515 (1982),
which held that exhaustion of state remedies was not a prerequisite to a § 1983 claim.
See also McKinney, 20 F.3d at 1567 (Hatchett, J., concurring) (“I write specially to
emphasize the fact that we are not holding that one who suffers a due process violation
must first seek relief in state courts, or follow state administrative procedures before
bringing a lawsuit in the federal courts.”). To hold otherwise would betray one of the
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lessons of Marbury v. Madison that for every legal right there is a remedy. 5 U.S.
137, 163 (1803).
Accordingly, it is ORDERED that Defendants’ Motion for Reconsideration and
Amended Motion for Reconsideration (Doc. # 54, 57) are DENIED.
It is further ORDERED a pretrial conference is scheduled for September 20,
2013, in the Frank M Johnson, Jr. U. S. Courthouse, One Church Street, Montgomery,
Alabama. This cause is set for trial during the term of court commencing on October
21, 2013, in Montgomery, Alabama. The Uniform Scheduling Order (Doc. # 22)
otherwise remains in effect.
DONE this 14th day of June, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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