Nelson v. Russell County Board of Education et al
OPINION. Signed by Honorable Judge Myron H. Thompson on 6/11/12. (djy, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION
GERALD B. NELSON, III,
RUSSELL COUNTY BOARD OF
EDUCATION, et al.,
CIVIL ACTION NO.
Plaintiff Gerald B. Nelson, III, brings this lawsuit
against defendants Russell County Board of Education,
WTVM Channel 9, Lalanya Almesha Ramsey (in her individual
capacity), and Yvette M. Richardson (in her individual
capacity) asserting numerous constitutional violations
and state torts.
Jurisdiction is proper under 28 U.S.C.
§§ 1343 (civil rights) & 1367 (supplemental).
For the reasons that follow, the
motions will be granted.
Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
Fed. R. Civ. P. 56(a).
The court must view the
evidence in the light most favorable to the non-moving
party and draw all reasonable inferences in favor of that
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
Nelson is a tenured teacher employed by the Russell
County Board of Education since 1997.
He serves as the
band director and music teacher at the Russell County
From at least 2004 until 2009, he was
active in the Russell County Educators Association, a
During this time, he was the building
representative, vice president, and president of the
Nelson alleges that he has experienced retaliatory
multiple acts of harassment, including asking him to
conferences after hours, denying field-trip proposals,
preventing the band from performing at certain school
events, and being rude in person and by email.
On March 4, 2009, Nelson had an altercation with a
submitted on the day of the incident, Nelson states as
“[The student] came into the hall while
I was at my door with Mr. Baraca. [The
student] then came to my door and said
to a[nother] student, in my class, ‘I
can’t get into trouble anymore.’ I told
[the student] to go to class before you
get into trouble.
He then said ‘you
don’t tell me what the hell to do I am
going to talk to him Fuck you.’ He went
passed me and went over there to talk to
this student anyway. I went in and told
him ‘you don’t come into my mother
fuckin classroom and tell me what to
I then got my behavior log and
told [the student] to come with me to
He then went to the gym
after many warnings to come with me. I
went to the gym top couch Malcolm on the
hand to look.
I went to the top and
[the student] said ‘If you touch me, I
will fuck you up.’ I went to get [the
student] by the wrist when he push away
and swung and hit me in the face.
then grab [the student] with my left
hand around the neck picked him up and
put him to the floor. [The student] was
still swinging his fist and legs.
held him there until coach came.”
Nelson Statement (Doc. No. 71-2) at 10 (typographical or
grammatical errors in the original).
The defendants have
submitted other statements by school administrators, the
victim, and other students confirming a similar version
The altercation attracted local media coverage. WTVM
Channel 9’s website ran a story entitled “Russell County:
Student says teacher choked him.”
85-2) at 2.
WTVM Story (Doc. No.
The news story includes quotes from School
recounts the student’s allegations and the fact that an
investigation is ongoing.
Nelson was given notice by Superintendent Richardson
that she was recommending his termination.
letter cited two grounds for dismissal:
“1. On or about March 4, 2009, Gerald
B. Nelson assaulted and battered a
student by choking the student around
the neck with his hands(s). [sic] By his
actions Mr. Nelson physically abused the
“2. On or about March 4, 2009, Gerald
unprofessional manner by using profanity
addressed to a student and in the
presence of the student and other
Richardson Letter (Doc. No. 71-2) at 32.
The letter informed Nelson of his right to request a
conference with the Russell County School Board and to
have an attorney and court reporter present.
Id. at 32-
He received a hearing and attended with a union
He was permitted to testify in his defense.
After the hearing, Nelson received written notice
that the school board upheld Superintendent Richardson’s
recommendation for dismissal.
He was informed that he
had a right to appeal this determination.
He appealed his termination to an arbitrator who
heard testimony for two days.
The arbitrator sided with
Nelson on his termination claim and found that Nelson did
not use excessive force even though his “poor judgment
escalated the situation from a verbal exchange of words
Arbitrator’s Decision (Doc. No. 71-2) at
The arbitrator, however, concluded that Nelson acted
unprofessionally by using profanity in front of students.
Based on these findings, the arbitrator imposed a 15-day
unpaid suspension and reinstated Nelson with back pay and
arbitrator’s decision was dismissed.
Nelson subsequently returned to work at the school;
1. The arbitrator also concluded that political and
other improper motives did not factor into the
unprofessionally toward him.
He then initiated this
At the outset, the court notes that it has endeavored
Nelson’s first amended complaint
factual allegations and a rambling list of elements of
the claims and citations.
At no point does Nelson’s
opinion, summary judgment is appropriate on them as well
for failure to state a claim.2
Nelson’s amended complaint alludes to a “hostile
work environment” claim but makes no allegations
regarding discrimination on the basis of race, gender,
age, disability, or any other protected basis.
Nelson claims that his temporary termination violated
his ‘procedural’ due-process rights.3
A court addressing
references to a hostile-work environment are included
only in a “narrative statement of facts.” The complaint
makes no reference to a “hostile work environment” in any
of the counts.
During an on-the-record pretrial
conference held on June 8, 2012, Nelson’s counsel
conceded that she had not brought a hostile-work
As such, the court construes the
complaint as not bringing any claim of hostile-work
3. Nelson also alleges that two attempted transfers
in 2006 violated his due-process rights. These claims
are time barred by 42 U.S.C. § 1983's two-year statute of
limitations. See Mann v. Darden, 630 F. Supp. 2d 1305,
1310 (M.D. Ala. 2009) (Thompson, J.) (explaining that
§ 1983 adopts a State’s limitations statute for personalinjury actions and that Alabama has a two-year statute of
Moreover, because Superintendent Richardson was not
even employed by the school board in 2006, summary
judgment should be granted to her on that ground alone.
Richardson also contends that she is entitled to summary
judgment on other state-law tort claims on a similar
ground, but because the court is rejecting those claims
on the merits, it sees no need to parse Richardson’s
employment history and Nelson’s claims.
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). It is undisputed that, as a tenured teacher,
Nelson had a property interest in his position.
the court turns to whether he received constitutionally
“Procedural due-process analysis is concerned with
whether the proceedings were reasonably calculated, under
all the circumstances, to apprise interested parties of
the pendency of the action and afford them an opportunity
Montgomery, 754 F. Supp. 2d 1311, 1318 (M.D. Ala. 2010)
“A procedural due process violation is
not complete unless and until the State fails to provide
McKinney v. Pate, 20 F.3d 1550, 1557 (11th
Cir. 1994) (internal quotation marks omitted).
Here, Nelson was afforded adequate due process.
was given written notice of his right to request a
hearing to challenge his termination.
He exercised that
right, testified, and was aided by an attorney.
then provided notice of his right to appeal the hearing’s
He appealed to an arbitrator, who
held a two-day hearing before reinstating him to his
It is unclear what additional procedures
Nelson believes were required by either Alabama law or
constitutionally adequate due process.
First Amendment Retaliation
To prove a First Amendment retaliation claim, “the
commonly accepted formulation requires that a plaintiff
constitutionally protected; second, that the defendant's
speech; and third, that there is a causal connection
between the retaliatory actions and the adverse effect on
Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th
Cir. 2005) (citations omitted).
The first prong “requires determining whether the
If the answer is no, the employee has no First
Amendment cause of action based on his or her employer's
reaction to the speech.”
Garcetti v. Ceballos, 547 U.S.
410, 418 (2006) (citation omitted).
“To presume that all
matters which transpire within a government office are of
public official--would plant the seed of a constitutional
case.” Connick v. Myers, 461 U.S. 138, 149 (1983).
relating to any matter of political, social, or other
concern to the community, government officials should
enjoy wide latitude in managing their offices, without
intrusive oversight by the judiciary in the name of the
First Amendment.” Id. at 146.
Neither Nelson’s complaint nor his opposition brief
identifies what speech he believes constituted a matter
matters listed by him in his deposition.
that his First Amendment rights were violated when he was
told to stop speaking at a school-board budget hearing at
which only board members were permitted to speak; when
his requests for band field trips were denied; when he
asked for assistance in his classroom to deal with a
requested extra chairs from Principal Ramsey and she
Deposition (Doc. No. 85-1) at 147-50.4
first grievance may arguably be classified as a matter of
See Pickering v. Board of Education, 391
4. The court notes that Nelson provided examples of
when his right to free speech was allegedly abridged, not
when he spoke out about matters of public concern.
U.S. 563 (1968) (holding that a teacher’s comment about
education funding was protected by the First Amendment).
As to the denial of his right to speak at a public
hearing as a union official, Nelson could not recall when
the meeting occurred, though it would have preceded the
physical altercation with the student in March 2009.
Further, he does not list any specific retaliatory acts–other than the termination–-that were connected to his
Even assuming Nelson provided a temporal link
between his protected speech and the termination, the
court is compelled to conclude that his “retaliation
claim would still be meritless, for the evidence is,
causally connected to [his] dismissal. ... No reasonable
Heenan v. Rhodes, 757 F. Supp. 2d 1229,
1241 (M.D. Ala. 2010) (Thompson, J.), modified on other
grounds, 761 F.Supp. 2d 1318 (M.D. Ala. 2011) (Thompson,
The attempted termination stemmed directly from a
documented by numerous witness statements and Nelson’s
As such, summary judgment is due to be
granted on his First Amendment retaliation claim.5
defendants, though his pleading targets WTVM Channel 9.
To establish a defamation claim, Nelson must show “‘
another  concerning the plaintiff,  which is either
5. At various times in his complaint and opposition
brief, Nelson cites “supervisory liability” as an
independent cause of action under 42 U.S.C. § 1983.
court interprets this argument as alleging that the
school board is liable on the First Amendment retaliation
count. Because Nelson has failed to establish (1) that
his constitutional rights were violated and (2) that the
school board had a custom or policy to retaliate against
union members, his supervisory-liability argument fails
as a matter of law. See Los Angeles County v. Humphries,
131 S. Ct. 447, 449 (2010) (explaining that plaintiffs
must establish a municipal policy or custom to hold a
municipal entity liable under 42 U.S.C. § 1983).
(actionable per se) or actionable upon allegations and
proof of special harm (actionable per quod).’”
Crawford Broadcasting, 904 So. 2d 221, 225 (Ala. 2004)
(quoting Delta Health Group, Inc. v. Stafford, 887 So. 2d
887, 891 (Ala. 2004)).
“Truth is an absolute defense to a defamation claim.”
S.B. v. Saint James School, 959 So. 2d 72, 100 (Ala.
(citing Foley v. State Farm Fire & Cas. Ins. Co.,
491 So. 2d 934 (Ala. 1986)).
In addition, “[i]n libel
defamation was made on a privileged occasion or under
circumstances and conditions which made it privileged in
Lapeyrouse Grain Corp., 534 So. 2d 1085, 1092 (internal
Here, the news story at issue was based on the
As noted above, Nelson has admitted to striking
In light of this concession and after a
thorough review of the article, the court finds that the
story was true.
Because truth is always a complete
defense to a defamation claim, the court will grant
summary judgment to all defendants as to this count.
Other State Torts
As an initial matter, the school board is immune from
common-law torts under the Alabama Constitution.
parte Hale County Board of Education, 14 So. 3d 844, 848
(Ala. 2009) (“Because county boards of education are
constitutional immunity from suit....”).
against Principal Ramsey and Superintendent Richardson.6
6. The court construes Nelson’s complaint as bringing
only a defamation claim against WTVM Channel 9. To the
extent that Nelson is alleging other state torts against
WTVM Channel 9, summary judgment is due to be granted on
these claims for the reasons given below.
Alabama Teachers’ Tenure Law
It appears that Nelson believes the defendants are
liable under the Alabama Teachers’ Tenure Law, 1975 Ala.
Code § 16-24-1, et seq.
Even assuming that the Alabama
Teachers’ Tenure Law sounds in tort against school-board
employees, the court grants summary judgment for the same
reason that Nelson’s due-process claim failed: he was
given all the process that was due under state law.
Improper Bias Against Teachers
Nelson cites Marshall County Board of Education v.
State Tenure Commission, 280 So. 2d 130 (Ala. 1973), for
the proposition that an “improper bias against teachers”
tort exists in Alabama.
But Marshall County involved a
contract dispute, not the creation of a new tort.
extent that such a claim does sound in tort, the court
construes it as coextensive with Nelson’s First Amendment
claim and rejects it for the same reasons.
multiple acts of “harassment.”
Nelson’s complaint does
not elaborate on his harassment claim nor does it allege
that the harassment was sexually or racially motivated.
Once again, Nelson creates a tort out of thin air.
Alabama, harassment claims do not present an independent
cause of action but must proceed under other common-law
Hendrix v. Chambers, 2008 WL 509633, *4
(M.D. Ala. Feb. 22, 2008) (Thompson, J.).
Stevenson v. Precision Standard, Inc., 762 So. 2d 820,
825 n.6 (Ala. 1999) (“It is well settled that Alabama
does not recognize an independent cause of action for
sexual harassment. Instead, claims of sexual harassment
are maintained under common-law tort theories such as
training and supervision, and outrage.”).
judgment will be granted on this claim.
Alabama’s tort of outrage “is essentially equivalent
to what many states refer to as ‘intentional infliction
of emotion distress.’”
K.M. v. Alabama Department of
Youth Services, 360 F. Supp. 2d 1253, 1259 n.4 (M.D. Ala.
2005) (Thompson, J.).
In order to prove a claim of
defendant ... intended to inflict emotional distress, or
should have known that his or her acts would result in
distress; and (4) plaintiff['s] emotional distress [was]
so severe that no reasonable person could be expected to
Id. at 1259 (citing Harrelson v. R.J., 882
So. 2d 317, 322 (Ala. 2003)).
The Supreme Court of
Alabama has emphasized “that this tort does not recognize
annoyances, petty oppressions, or other trivialities.’”
American Rd. Serv. Co. v. Inmon, 394 So. 2d 361, 364-65
(Ala. 1980) (citation omitted).
Rather, recovery is
appropriate for only “conduct so outrageous in character
and so extreme in degree as to go beyond all possible
bounds of decency, and to be regarded as atrocious and
utterly intolerable in a civilized society.” Id. at 365.
The court is aware of “only three limited circumstances”
where the Alabama Supreme Court has recognized this tort:
burials; (2) an insurance agent's coercing an insured
sexual harassment.” Carraway Methodist Health Systems v.
Wise, 986 So. 2d 387, 401 (Ala. 2007).
Principal Ramsey and Superintendent Richardson that could
be viewed as “beyond all possible bounds of decency,” so
intolerable in a civilized society.” Inmon, 394 So. 2d at
As such, summary judgment will be granted against
Nelson on his outrage claim.
Interference with Contract
The elements of a claim for tortious interference
with a contract are “‘(1) the existence of a contract or
business relation, (2) the defendant's knowledge of the
business, and (4) damage to the plaintiff as a result of
the defendant's interference.’” Serra Chevrolet, Inc. v.
Edwards Chevrolet, Inc., 850 So. 2d 259, 265 (Ala. 2002)
(quoting Bama Budweiser of Montgomery, Inc. v. AnheuserBusch, Inc., 611 So. 2d 238, 246-47 (Ala. 1992)).
As with his other state-law claims, Nelson provides
no specific basis for this claim in his pleadings.
as with his claims regarding teacher tenure, Nelson has
interfered with his contract outside the established and
appropriate termination procedures.
As such, Nelson
cannot establish the elements for this claim, and summary
judgment is appropriate on it.
An appropriate summary judgment in favor of the
against Nelson will be entered.
DONE, this the 11th day of June, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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