Kirk v. City of Valley, Alabama et al (JOINT ASSIGN)(MAG+)

Filing 32

MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: 1) Plaintiff's objections (Doc. # 30 ) are OVERRULED. 2) The Recommendation (Doc. # 29 ) is ADOPTED. 3) Defendants the City of Valley's and Mayor Leonard Riley's motions to dismiss (Docs. # 19 , 24 ) are GRANTED. 4) All claims against the City of Valley and Mayor Leonard Riley are DISMISSED with prejudice. Signed by Honorable Judge William Keith Watkins on 9/4/2019. (cnw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
CHRIS KIRK,
Plaintiff,
v.
CITY OF VALLEY, ALABAMA,
et al.,
Defendants.

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CASE NO. 3:17-CV-800-WKW
[WO]

MEMORANDUM OPINION AND ORDER
In March 2019, the Magistrate Judge filed a Recommendation (Doc. # 29) that
the pending motions to dismiss (Docs. # 19, 24) be granted and that Plaintiff Chris
Kirk’s claims against Defendants, the City of Valley and Mayor Leonard Riley be
dismissed with prejudice.

Plaintiff filed timely objections (Doc. # 30) and

Defendants filed a response to the objections (Doc. # 31). The court has conducted
an independent and de novo review of those portions of the Recommendation to
which objection is made. See 28 U.S.C. § 636. After careful review of the law,
allegations, and arguments, the court finds that the objections are due to be overruled
and the motions to dismiss granted.
I.

JURISDICTION AND VENUE

Because Plaintiff’s claims arise under a federal statute, 42 U.S.C. § 1983, the
court has federal-question subject-matter jurisdiction. 28 U.S.C. § 1331. The parties

do not contest personal jurisdiction or venue.
II.

STANDARD OF REVIEW

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure tests the sufficiency of the complaint. Rule 8 provides that the complaint
must include “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). When evaluating a motion to dismiss
under Rule 12(b)(6), the court must take the facts alleged in the complaint as true
and construe them in the light most favorable to the plaintiff. Resnick v. AvMed,
Inc., 693 F.3d 1317, 1321–22 (11th Cir. 2012). However, the court need not accept
mere legal conclusions as true. Id. at 1325.
To survive a 12(b)(6) motion, the complaint “must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. Dismissal under Rule 12(b)(6)
is also permitted “when on the basis of a dispositive issue of law, no construction of
the factual allegations will support the cause of action.” Marshall Cty. Bd. of Educ.
v. Marshall Cty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993); see also Neitzke

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v. Williams, 490 U.S. 319, 326–27 (1989) (explaining that the rule allows a court “to
dismiss a claim on the basis of a dispositive issue of law”).
III.

BACKGROUND

Plaintiff makes no objection to the following facts, which are set out in Part
III of the Recommendation. Plaintiff was employed by the City of Valley, Alabama,
as a “Human Resources/Accounting Technician” from December 2012, until
September 2016. (Doc. # 18, at 2.) Plaintiff’s amended complaint does not include
a job description. But it can be reasonably inferred from the allegations that Plaintiff
dealt with personnel issues involving city employees. (See Doc. # 29, at 3-4.) That
inference is based not only on what was included in Plaintiff’s job title (“Human
Resources”), but also on Plaintiff’s August 2016 meeting with Police Chief Weldon
and Captain Cox about Cox’s upcoming retirement. 1
At that meeting, Cox informed Plaintiff that after Cox’s retirement, Mayor
Riley was going to hire Cox as a part-time employee and that he was going to allow
Cox “to keep part of his sick leave.” (Doc. # 18, at 2.) Plaintiff told Cox that he
could not work for thirty days following his retirement and that “part-time
employees do not receive sick leave.” (Doc. # 18, at 3.)
When Weldon insisted that Mayor Riley was going to allow Cox to keep some

1

The amended complaint does not give the first names of Weldon or Cox. Nor does it give
Cox’s full title.
3

of his sick-leave time, Plaintiff said she would talk to Mayor Riley about it. (Doc. #
18, at 3.) Before meeting with Mayor Riley, Plaintiff met with Kathy Snowden, the
“City Clerk/Treasurer,” who confirmed that part-time employees do not receive sick
leave. (Doc. # 18, at 3.)
Plaintiff then met with Mayor Riley to tell him that part-time employees do
not receive sick leave and that “it may be a violation of ERISA rules if the city gave
Cox sick leave but did not give sick leave to other part-time employees.” (Doc. #
18, at 3.) Mayor Riley told Plaintiff that “she was wrong” and that he “had the
discretion to make this change.” (Doc. # 18, at 3.)
On September 12, 2016, Plaintiff attended the city council meeting “where
the resolution was introduced.”2 Because Plaintiff believed Mayor Riley’s proposal
“was a matter of public concern and potentially illegal, she expressed her concerns
as a citizen of Valley, Alabama, to City Council Member Jim Jones before the
meeting began.” (Doc. # 18, at 3.) Going to a city council meeting and talking to
city council members about ordinances or other city business “was not in [Plaintiff’s]
regular duties as a city employee.” (Doc. # 18, at 4.)
Plaintiff’s lobbying Council Member Jones was apparently successful. Jones
was alone in voicing opposition to and voting against the resolution. (Doc. # 18, at

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The amended complaint does not explain what the resolution was, but it can be reasonably
inferred that the resolution dealt with Cox’s sick leave.
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4.) But the resolution still passed.
Three days after the city council meeting, Mayor Riley met with Plaintiff and
told her that speaking with Council Member Jones before the city council meeting
amounted to insubordination and asked Plaintiff to resign. (Doc. # 18, at 4.) He
further stated that employees could not speak to council members about city
business. (Doc. # 18, at 4.) After Plaintiff refused to resign, Mayor Riley fired her,
citing “insubordination, conduct unbecoming an employee, abusive conduct,
inefficiency, and neglect of duty.” (Doc. # 18, at 4.)
Plaintiff then filed this lawsuit, alleging that the City of Valley (Count One)
and Mayor Riley (Count Two) fired her in retaliation for exercising her First
Amendment rights. (Doc. # 18.)
IV.

DISCUSSION

The crux of Plaintiff’s First Amendment claim is that “the reasons given by
Mayor Riley and the City of Valley for her termination are pretextual, and instead
. . . she

was terminated in retaliation for engaging in protected speech.” (Doc. # 18,

at 4.)
A government employee may not be terminated in retaliation for speech
protected under the First Amendment. See Garcetti v. Ceballos, 547 U.S. 410, 417
(2006) (“The Court has made clear that public employees do not surrender all their
First Amendment rights by reason of their employment.”); see also Rankin v.
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McPherson, 483 U.S. 378, 383 (1987) (“It is clearly established that a State may not
discharge an employee on a basis that infringes that employee’s constitutionally
protected interest in freedom of speech.”). But public employees do not enjoy an
absolute right to freedom of speech. Maggio v. Sipple, 211 F.3d 1346, 1351 (11th
Cir. 2000). Given the nature of public service, a government employee “must accept
certain limitations on [her] freedom.” Garcetti, 547 U.S. at 418. The Supreme
Court in Garcetti set out what is required for a public employee’s speech to be
entitled to protection. The first inquiry, the only inquiry at issue,
requires determining whether the employee spoke as a citizen on a
matter of public concern. 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. If the answer is yes, then the possibility of a First
Amendment claim arises.
Id. (cleaned up). Therefore, the First Amendment only protects Plaintiff’s speech if
it was made “(1) as a citizen and (2) on a matter of public concern.” Alves v. Bd. of
Regents of the Univ. Sys. of Ga., 804 F.3d 1149, 1160 (11th Cir. 2015). Both “are
questions of law for the court to resolve.” Id. at 1159.
In her Recommendation (Doc. # 29), the Magistrate Judge found that
Plaintiff’s speech was made neither as a citizen nor on a matter of public
concern. The court agrees with the thorough Recommendation and will not repeat
all of its analyses here.
The thrust of Plaintiff’s objection (Doc. # 30) relates to the public concern
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element. Plaintiff wants her speech to Councilman Jones to be interpreted as a
matter of public concern because “the City’s potential violation of ERISA” and “an
evaluation of Mayor Riley’s performance in his public service” are matters of public
concern. (Doc. # 30, at 4, 7.) Not so. “To presume that all matters which transpire
within a government office are of public concern would mean that virtually every
remark — and certainly every criticism directed at a public official — would plant
the seed of a constitutional case. . . . [T]he First Amendment does not require a public
office to be run as a roundtable for employee complaints over internal office affairs.”
Connick v. Myers, 461 U.S. 138, 149 (1983). For First Amendment purposes, an
“employee’s speech will rarely be entirely private or entirely public. Rather than
categorize each phrase the employee uttered, we consider whether the speech at issue
was made primarily in the employee’s role as citizen, or primarily in the role of
employee.” Morgan v. Ford, 6 F.3d 750, 755 (11th Cir. 1993) (citations
omitted). “Whether an employee’s speech addresses a matter of public concern
must be determined by the content, form, and context of a given statement, as
revealed by the whole record.” Connick, 461 U.S. at 147-48.
Here, the content, form, and context of Plaintiff’s speech indicate that she
spoke privately in her role as a human resources specialist. The content of Plaintiff’s
speech focused on the legality of Captain Cox’s receiving sick leave as a part-time
employee.

This is analogous to “vacation policies, promotion guidelines and
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pension benefits,” which the Eleventh Circuit has long excluded from the public
concern category. 3 Anderson v. Burke Co., 239 F. 3d 1216, 1220 (11th Cir. 2001).
The form of Plaintiff’s speech was a private oral communication with a single city
council member regarding the mayor’s part-time employee sick leave policy. See
Alves, 804 F.3d at 1162 (although not dispositive, “whether the speech was
communicated to the public or privately to an individual is relevant”). And the
context is evident from Plaintiff’s desire to “discuss the issue . . . in her capacity as
Accounting Technician.” (Doc. # 18, at 3.)
Plaintiff argues that her speech was a matter of public concern “[b]ecause
potential wrongdoing by city officials is a subject of general interest and of value
and concern to the public.” (Doc. # 30, at 8.) But the Eleventh Circuit “emphasized
that the relevant inquiry is not whether the public would be interested in the topic of
the speech at issue but rather . . . whether the purpose of the plaintiff’s speech was
to raise issues of public concern.” Maggio, 211 F.3d at 1353 (cleaned up). The
Magistrate Judge correctly addressed this issue:
As to Plaintiff’s motivation for the speech, the court recognizes that
Plaintiff alleges she “believed” the Mayor’s sick leave policies were a
“violation of ERISA” (Doc. 18 at ¶¶ 10, 12) and, as such, “a matter of
public concern and potentially illegal.” (Doc. 18 at ¶ 12). However,
“[m]entioning ‘possible’ liability for perceived wrongdoing in the
future does not transform [Plaintiff’s] speech into that of a citizen
protesting on behalf of the public.” King v. Board of County
3

The Supreme Court recognized the difficulty of finding exact factual precedent on these
issues because of “the enormous variety of fact situations.” Garcetti, 547 U.S. at 418.
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Commissioners, 2019 WL 988467, at *6 (11th Cir. 2019). In addition,
it is clear that Plaintiff’s concern about a possible ERISA violation
arose out of her duties as a Human Resources/Accounting Technician
who dealt with sick leave policies. “She was not a concerned citizen
who happened to become aware of [the sick leave eligibility question]
and decided to do something about it.” See id., 2019 WL 988467, at *5
(11th Cir. 2019); see also id. (“[T]he starting point of [Plaintiff’s]
speech was her official duties, which suggests she was not speaking as
a private citizen.”); id. at 7 (“At bottom, the impetus for her speech was
frustration at work, not fear for public safety or the public purse.”).
(Doc. # 29, at 10.) Additionally, Councilman Jones was at least the fifth person to
hear Plaintiff’s concerns about whether or not Captain Cox would receive sick leave
as a part-time employee. The motivation behind Plaintiff’s speech can be derived
from her four previous conversations with Captain Cox, Chief Weldon, Ms.
Snowden, and Mayor Riley and her desire to “discuss the issue in a committee
meeting with the City Council in her capacity as Accounting Technician.” (Doc. #
18, at 3.)
Overall, after careful consideration, the court finds that the cases Plaintiff cites
are distinguishable, that the Recommendation is correct, and that Plaintiff’s
objections lack merit.
V.

CONCLUSION

Having examined the allegations pertaining to the content, form, and context
of Plaintiff’s speech, the court concludes as a matter of law that Plaintiff’s speech
— a mistaken belief about the legality of whether Captain Cox could receive sick
leave as a part-time employee — is not a matter of public concern.
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Accordingly, it is ORDERED as follows:
(1)

Plaintiff’s objections (Doc. # 30) are OVERRULED.

(2)

The Recommendation (Doc. # 29) is ADOPTED.

(3)

Defendants the City of Valley’s and Mayor Leonard Riley’s motions to

dismiss (Docs. # 19, 24) are GRANTED.
(4)

All claims against the City of Valley and Mayor Leonard Riley are

DISMISSED with prejudice.
A separate final judgment will be entered.
DONE this 4th day of September, 2019.
/s/ W. Keith Watkins
UNITED STATES DISTRICT JUDGE

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