Mills v. City of Phenix City, Alabama
OPINION. Signed by Honorable Judge Myron H. Thompson on 7/16/12. (scn, ) (Main Document 37 replaced on 7/16/2012 to correct spelling and date errors) (scn, ).
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION
CITY OF PHENIX CITY,
CIVIL ACTION NO.
Plaintiff Beverly Mills brings this lawsuit charging
that defendant City of Phenix City, Alabama terminated
her employment in violation of her due-process rights (as
through 42 U.S.C. § 1983) and discriminated against her
on the basis of her gender in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C.
§§ 1981a, 2000e through 2000e-17.
Mills also asserts a
pursuant to 28 U.S.C. § 1343 (civil rights), 42 U.S.C.
2000e-5(f)(3) (Title VII), and 28 U.S.C. § 1367 (state
The city now moves for summary judgment.
reasons that follow, the motion 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).
Here, Mills is the non-
After 30 years in the banking industry and a brief
She was hired as an office manager in the
payroll, and authorizing employee reimbursements.
The city divides its employees into ‘classified’ and
Its merit-system rules “apply
to all positions in the Merit System except those in the
City Rules (Doc. No. 13-6) at 2.
The rules further state that, “Provisions with respect to
Compensation Plan, Attendance and Leave Regulations and
Employee Relations apply to full-time employees in the
Unclassified Service except elected officials, members of
the advisory boards, commissions and committees.”
entitled to a hearing.
It is undisputed that, at the time of hiring, Mills’s
office-manager position was ‘classified’ under the city’s
merit-system rules. At that time, unclassified employees
included, amongst others, the city manager, aides to the
department directors, and temporary employees.
February, 15, 2005, the city council passed ordinance
number 2005-02, which added office managers to the list
of unclassified positions.
According to the city, this
ordinance transferred Mills to the unclassified service,
notwithstanding the fact that she had been hired as a
Mills’s disciplinary troubles began in October 2007
when she was given a verbal warning and counseling for
permitting a subordinate employee to handle payroll.
Verbal Warning Form (Doc. No. 13-1) at 1.
states that only Mills and Utilities Director Greg Glass
were authorized to process payroll.
Mills responds that
Glass had directed her to let the subordinate employee
handle the payroll.
It is undisputed that only Mills was
written up for insubordination for this incident.
In August 2009, Mills received two disciplinaries.
In one incident, she altered the time cards of Trevor
Truitt in violation of city policy.1
She contends that
Truitt had been taking only 20 minutes of his allotted
30-minute lunch break and that she altered the time cards
to prevent him from making a claim for unpaid overtime.
According to Mills, the alteration of time cards was a
common occurrence in the city’s utilities department.
Mills received an eight-hour suspension for the time-card
Written Warning Form (Doc. No. 13-2) at 1.
Around the same time, Mills was again written up,
this time for insubordination for a separate incident.
She had been advised by City Manager Wallace Hunter that,
Smith’s extended absence, she should contact Hunter.
1. The record and briefing contain three different
first names for Truitt: Trevor, Travor, and Travis. The
court uses the first name ‘Trevor’ because it is the most
frequently used name and appears on the city’s official
another employee’s absence from a training program, Mills
and Woody called Smith on his cell phone to ask for help.
Mills states that Smith had instructed her to call him if
a problem arose.
Nonetheless, Mills was disciplined for
ignoring Hunter’s command and received an eight-hour
Written Warning Form (Doc. No. 13-3) at 1.2
The city terminated Mills on July 14, 2010, after she
had approved fraudulent purchase orders submitted by
A city investigation had revealed that Truitt
romantically involved and had conspired to defraud the
Truitt submitted false reimbursement requests for
expenses such as air fresheners, foot powder, and car
Mills approved these requests in her role as
According to the city, Mills’s actions
2. Mills received a fourth reprimand in April 2010
for forwarding a chain email about coping with grief
shortly after her husband died. She was suspended for 40
hours for this violation. Written Warning Form (Doc. No.
13-4) at 1. She concedes that she violated the city’s
prohibition against sending chain emails.
Brief (Doc. No. 20-1) at 4.
were negligent and merited termination in light of her
purchases raised red flags; that she processed 75 to 80
pay requests daily; and that her supervisor (Smith) was
equally responsible for approving Truitt’s requests.
During the course of the fraud investigation, Mills
was interviewed by the police but never charged with a
The story also garnered local media attention.
Truitt and Suttle’s affair and fraudulent scheme.
commented that Mills had been fired for authorizing the
Marcy Williams, Smith’s speech left the impression that
Mills had been part of Truitt and Suttle’s conspiracy.
Williams Affidavit (Doc. No. 19-6) at 2.
Mills sought an administrative hearing before the
city’s personnel-review board and appeared at a meeting
of the city council.
The review board and city council
refused to hear Mills’s appeal on the ground that she was
an unclassified employee outside the city’s merit-system
This lawsuit followed.
Mills makes two separate claims under the Due Process
Clause as enforced through § 1983.
First, she contends
that her right to ‘procedural’ due process was violated
by the city when it fired her without a hearing.
and relatedly, Mills asserts a ‘stigma-plus’ claim: that
the city defamed her when it terminated her and failed to
provide an avenue to clear her name.
Procedural Due Process
Mills claims that she had a property interest in her
job and that the city violated that interest when it
The court rejects this claim for two
First, this claim is abandoned or waived, for,
while it was presented in her complaint, it was not
addressed in her summary-judgment brief.
Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.
1995) (“grounds alleged in the complaint but not relied
upon in summary judgment are deemed abandoned”).
as will now be explained, this claim lacks merits.
process if she has a property interest in her position.
Bishop v. Wood, 426 U.S. 341, 343-47 (1976).
removed except ‘for cause.’”
Logan v. Zimmerman Brush
Co., 455 U.S. 422, 430 (1982).
The Supreme Court has
procedural due process protection are not limited by a
few rigid, technical forms.
Rather, ‘property’ denotes
a broad range of interests that are secured by ‘existing
rules or understandings.’”
Perry v. Sindermann, 408 U.S.
Colleges v. Roth, 408 U.S. 564, 577 (1972)).
insufficient to trigger due-process protections. Bishop,
426 U.S. at 345-47.
The parties dispute whether Mills had a property
interest in her employment.
Mills believes that the
city’s classification system is unclear and that the
created a property right in her employment.
jealously guarded its status as an “at will” employment
See, e.g., Ex parte Amoco Fabrics and Fiber Co.,
729 So. 2d 336, 339 (Ala. 1998) (“The bedrock principle
of Alabama employment law is that, in the absence of a
contract providing otherwise, employment in this state is
at-will, terminable at the will of either party.
this doctrine, an employee may be discharged for any
reason, good or bad, or even for no reason at all.”).
acquire a property interest in their employment as long
as they remain in the terminable-at-will realm.
The city’s 2005 ordinance clearly transferred the
2005 Ordinance (Doc. No. 13-7) at
As such, there is no ambiguity as to the designation
classified employee entitled to a hearing.
To be sure, an employee need not have an explicit
contract to move into the realm of for-cause employment.
Alabama cases establish that, in certain circumstances,
Hoffman-LaRoche, Inc., v. Campbell, 512 So.
2d 725, 735 (Ala. 1987) (holding that “the language
contained in a handbook can be sufficient to constitute
an offer to create a binding unilateral contract”).
these cases are inapposite when the handbook expressly
avows that it does not create a property interest in
Id. at 734 (commenting that “if the employer
does not wish the policies contained in an employee
handbook to be construed as an offer for a unilateral
contract, he is free to so state in the handbook”).
constitute a binding contract is a question of law to be
decided by the court. Campisi v. Scoles Cadillac, Inc.,
611 So.2d 296, 298-99 (Ala. 1992).
Here, the city’s rules unequivocally state that they
do not create a property interest: “The city reserves the
right to change or depart from the Merit System Rules and
Nothing in these Rules and Regulations
shall be construed as an employment contract between any
individual and the city covering any term or condition of
Merit System Rules (City’s Exhibit 1) at
Courts construing Alabama law have held similar
4667382, *6 (S.D. Ala. Nov. 25, 2009) (Steele, J.).
also Hoffman-LaRoche, 512 So. 2d at 734 (providing as an
example of at-will employment: “[t]his Handbook and the
policies contained herein do not in any way constitute,
and should not be construed as a contract of employment
between the employer and the employee, or a promise of
Thus, Mills cannot point to the city’s
merit-system rules to establish a property right in her
Mills refers to language in her termination letter
and three of the disciplinaries as the source of her
right to a hearing.
When she was fired, Mills was asked
to sign beneath the following paragraph:
“I further acknowledge I have been
informed of my right to appeal the
disciplinary action taken against me to
the Appeals Board or the Personnel
My request must be
submitted in writing to the Personnel
Director within three (3) working days
for the Appeal Board and within ten (10)
working days for the Personnel Review
Board. Probationary employees are not
entitled to a Personnel Review Board
Hearing as stated in Section 15.011 of
the Merit System Rules and Regulation.”
Termination Letter (Doc. No. 13-5) at 3.
This argument is unavailing for two reasons.
as discussed above, the city’s rules-–which define the
disciplinary procedures–-cannot form the basis for a
property right because the city included a disavowal
clause in its handbook.
Second, it is axiomatic that
“‘property’ cannot be defined by the procedures provided
“construct a property interest out of procedural timber
Bunger v. University of Oklahoma Bd. of
Regents, 95 F.3d 987, 990-991 (10th Cir. 1996).
procedural steps in considering [Mills’s termination] did
not beget a property interest in [it].”
Id. at 991.
instruction in a disciplinary form as the basis for a
property right when none otherwise exists.
Alternatively, Mills contends in both his complaint
and summary-judgment brief that the city violated her
due-process right when it reclassified her position in
2005 and, thus, that the city could not terminate her
without a hearing in 2010.
Here, the distinction between
As the Eleventh Circuit Court of Appeals has
“Executive acts characteristically apply
to a limited number of persons (and
often to only one person); executive
ministerial or administrative activities
of members of the executive branch. The
most common examples are employment
“Legislative acts, on the other hand,
generally apply to a larger segment
of--if not all of--society; laws and
broad-ranging executive regulations are
the most common examples. The analysis,
distinction discussed above, that is
appropriate for executive acts is
inappropriate for legislative acts. For
legislative acts has the Supreme Court
mandated that states must demonstrate
interests only as necessary to promote
McKinney v. Pate, 20 F.3d 1550, 1557 n.9 (11th Cir. 1994)
(en banc) (citations omitted). The 2005 reclassification
ordinance transferring an entire group of employees from
the classified to unclassified service.
There was no
Mills’s argument that the
cognizable as a procedural due-process claim.
bring a procedural due process violation for only the
paradigmatic executive act at issue in this case-–her
3. Finally, Mills claims that she was ‘grandfathered’
into the classified service.
Specifically, she alleges that the city defamed her and
failed to provide a hearing to clear her name.
employee seeking to establish a stigma-plus claim must
prove that: “(1) a false statement (2) of a stigmatizing
nature (3) attending a governmental employee's discharge
(4) was made public (5) by the governmental employer (6)
Cannon v. City of West Palm Beach, 250 F.3d
“requires the plaintiff to show both a valid defamation
tangible interest (the plus).”
Rehberg v. Paulk, 611
F.3d 828, 852 (11th Cir. 2010) (internal quotation marks
misinterprets Alabama case law.
She relies on cases
where Alabama law explicitly ‘grandfathered’ in certain
employees. Morrison v. Booth, 763 F.2d 1366, 1368 (11th
Cir. 1985) (discussing the ‘grandfathering’ process). No
such grandfather clause exists in this case.
cannot prove defamation.4
To establish a defamation
claim, Mills must show “‘ that the defendant was at
plaintiff,  which is either actionable without having
to prove special harm (actionable per se) or actionable
upon allegations and proof of special harm (actionable
Ex Parte Crawford Broadcasting, 904 So. 2d
221, 225 (Ala. 2004) (quoting Delta Health Group, Inc. v.
Stafford, 887 So. 2d
887, 891 (Ala. 2004)).
4. The court notes that there must be a ‘plus’ in a
See Rehberg, 611 F.3d at 852 (“The
‘stigma-plus’ test requires not only allegations stating
a common-law defamation claim, but also an additional
constitutional injury, tied to a previously recognized
constitutional property or liberty interest, flowing from
the defamation.”). The court has concluded that Mills
lacks a property interest in her employment, see supra
Section III.A.1. As such, Mills can prevail only if she
had a liberty interest in her employment. Because the
court concludes that there is no ‘stigma,’ it declines to
address whether a public employee can have a liberty
interest in continued employment when a property interest
does not exist.
“Truth is an absolute defense to a defamation claim.”
S.B. v. Saint James School, 959 So. 2d 72, 100 (Ala.
The First Amendment compels a defense of truth to
defamation claims, lest state tort law “interfere with
the truth-seeking function of the marketplace of ideas.”
However, “there is no constitutional value in
false statements of fact.”
Gertz v. Robert Welch, Inc.,
418 U.S. 323, 340 (1974) (emphasis added).
The question, then, is whether Smith uttered a false
statement of fact when he announced Mills’s termination.
“On or about July 14, 2010, Stephen
Smith met with all of the employees of
the utilities department.
He told us
that Beverly Mills and two other
employees (Trevor and Sylvia) had been
fired. He said that Trevor and Sylvia
had been having an affair. He said that
Sylvia had been helping her boyfriend
Trevor to hide improper reimbursement
Smith said that Beverly was
fired for signing invoices that should
not have been signed. In this meeting,
Mr. Smith lumped Beverly Mills together
with Trevor and Sylvia, giving the false
impression that Beverly was part of
their scheme to steal from the City.”
Williams Affidavit (Doc. No. 19-6) at 2 (emphasis added).
Nothing in Williams’s affidavit evidences that a
false statement was made.
Mills was terminated by the
city for her negligent approval of Truitt and Suttle’s
fraudulent scheme and Smith’s speech reflects that fact.
Williams’s account of Smith’s speech places a far greater
emphasis on the involvement between Truitt and Suttle;
Mills is referenced with regards to only her approval of
Williams’s “false impression” of Smith’s speech is not
synonymous with a ‘false fact.’
article--that neither mentions her by name nor contains
any false statement–-and affidavits from friends who have
heard rumors about why she was terminated.
mill’s insinuations that Mills was actively and knowingly
involved in the fraudulent scheme does not transform
Smith’s statement into a falsehood.
Because the city did
not state a falsehood, Mills’s stigma-plus claim must
A gender-discrimination claim brought under Title VII
is governed by the familiar burden-shifting analysis of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under the McDonnell Douglas framework, a plaintiff has
the initial burden of establishing a prima-facie case of
unlawful employment discrimination by a preponderance of
Id. at 802.
If the plaintiff establishes a
prima-facie case, the burden then shifts to the defendant
to rebut the presumption by articulating a legitimate,
5. Mills also asserted a state-law defamation claim.
She has conceded that summary judgment is due to be
granted on this claim. See infra Section III.C.
It could be argued that, because the stigma-plus test
requires proof of “a common-law defamation claim,”
Rehberg, 611 F.3d at 852, Mills’s concession defeats her
stigma-plus claim as well.
non-discriminatory reason for its employment action. The
persuasion, and thus need not convince the court that the
reason advanced actually motivated its action.
establishing the prima-facie case, sufficient to permit
a reasonable factfinder to conclude that the reasons
given by the [defendant] were not the real reasons for
Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc)
(internal quotation marks omitted).
In other words, a
explanation is a mere pretext for discriminatory conduct.
To establish a prima-facie case of discriminatory
discipline, Mills must show that: (1) she belongs to a
protected class; (2) she was subjected to adverse job
action; and (3) her employer treated similarly situated
Holifield v. Reno, 115 F.3d 1555, 1562 (11th
Cir. 1997) (per curiam).
The city contends that the three pre-termination
cognizable under Title VII.
In Burlington Industries v.
Ellerth, 524 U.S. 742 (1998), the Supreme Court explained
significant change in employment status, such as hiring,
significantly different responsibilities, or a decision
causing a significant change in benefits.”
Id. at 761.
Although context specific, a “tangible employment action
in most cases inflicts direct economic harm.”
Here, Mills was suspended without pay on two relevant
occasions prior to her termination.6
“While a suspension
Mills does not contend that the chain-letter
is not the most severe punishment, it still qualifies as
a tangible-employment action” because there is direct
Adams v. City of Montgomery, 2012 WL
1414979, *6 (M.D. Ala. Apr. 24, 2012) (Thompson, J.).
Moreover, because the city’s progressive disciplinary
policy factored in the three contested disciplinaries
into the termination decision, each of them is actionable
to that extent.
The city fares better on its next arguments.
city argues that Mills has failed to identify a valid
“To make a comparison of the plaintiff’s
treatment to that of [male] employees, the plaintiff must
show that [s]he and the employees were similarly situated
in all relevant respects.”
Holifield, 115 F.3d at 1562
The Eleventh Circuit requires that
“the quantity and quality of the comparator's misconduct
disciplinary was discriminatory.
As such, the court
omits it from the discussion of Mills’s Title VII claim.
Maniccia v. Brown, 171
confusing apples with oranges.”
F.3d 1364, 1368 (11th Cir. 1999) (emphasis added).
For the October 2007 reprimand, the August 2009
termination, Mills cites her immediate supervisors, Glass
and Smith, as comparators.7
Of course, a supervisor is
not “similarly situated” to a subordinate employee.
to the time-card suspension, Mills submits that other
Mills, however, has not presented evidence
that another office manager altered time cards and that
As such, Mills cannot establish a prima-facie
case of discriminatory discipline.
Moreover, Mills has
not presented evidence that any male employee had a
7. Mills also claims that Woody was not punished for
his role in the phone call to Smith in contravention of
Hunter’s directive. But Mills clearly states that she
and Mitchell were informed of Hunter’s order, not Woody.
See Mills Deposition (Doc. No. 19-16) at 13.
history of rules violations similar to hers but was not
In addition to the lack of a comparator, Mills has
not produced any evidence of pretext.
While Mills may
dispute the fairness and severity of the disciplinaries,
she does not dispute that her behavior occurred.
she submits that her actions was excusable because her
immediate supervisor authorized it or engaged in similar
pronouncements and/or city rules). Mills listened to her
immediate supervisor, not the chain-of-command. As such,
violated work rules by ignoring city rules and the direct
orders of her higher-ranking supervisors.
In her opposition brief, Mills concedes that summary
evidence to show actual malice by the City.”
Brief (Doc. No. 20-1) at 20.
As such, the court will
grant defendant City of Phenix City’s motion for summary
judgment as to this claim.
An appropriate summary judgment in favor of Phenix
City and against Mills will be entered.
DONE, this the 16th day of July, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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