Dudley v. City of Bessemer et al

Filing 40

MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 9/29/2014. (KEK)

FILED
2014 Sep-29 AM 10:21
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CHEREE M. DUDLEY,
Plaintiff,
v.
CITY OF BESSEMER,
ALABAMA
and KENNETH E. GULLEY,
Defendants.

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Case No: 2:12-cv-01762-MHH

MEMORANDUM OPINION
Plaintiff CheRee Minor Dudley formerly was employed as the Chief Court
Clerk for the City of Bessemer, Alabama Municipal Courts. Ms. Dudley sued the
City of Bessemer because she contends that the City terminated her based on her
sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et
seq. She also alleges, under 42 U.S.C. § 1983, that the City and the Mayor of the
City of Bessemer, Kenneth E. Gulley, violated her 14th Amendment right to equal
protection. Finally, Ms. Dudley asserts a state law assault claim against Mayor
Gulley. (Doc. 15).
The City and the Mayor have asked the Court to enter judgment in their
favor on all of Ms. Dudley’s claims pursuant to Rule 56 of the Federal Rules of
Civil Procedure. Citing Rule 56(c)(2), the Mayor and the City also ask the Court
1

to strike portions of the affidavits of Edward E. May, Lakisha Addie Minor, and
Ms. Dudley. Ms. Dudley filed those affidavits in opposition to the defendants’
summary judgment motion. As explained in greater detail below, the Court grants
the defendants’ motion for summary judgment with respect to Ms. Dudley’s §
1983 and Title VII claims.

The Court declines to exercise supplemental

jurisdiction over Ms. Dudley’s state law assault claim and dismisses it without
prejudice. Given this disposition, the defendants’ motion to strike is moot.
I. SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment 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 law.” Fed.R.Civ.P. 56(a). To demonstrate that there is a genuine
dispute as to a material fact that precludes summary judgment, a party opposing a
motion for summary judgment must cite “to particular parts of materials in the
record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ.
P. 56(c)(1)(A). When considering a summary judgment motion, the Court must
view the evidence in the record in the light most favorable to the non-moving
party. Hill v. Wal-Mart Stores, Inc., 510 Fed. Appx. 810, 813 (11th Cir. 2013).
“The court need consider only the cited materials, but it may consider other

2

materials in the record.” Fed. R. Civ. P. 56(c)(3).
II. FACTUAL BACKGROUND
Ms. Dudley’s claims against the City and Mayor Dudley relate to her
termination in 2011, but this story begins with her selection as the Chief Court
Clerk for the City of Bessemer. The City hired Ms. Dudley on February 19, 2007.
Doc. 33-9 at 4. The City posted the job opening, describing the position of Chief
Court Clerk for the City of Bessemer Municipal Courts as follows:
Work involves performing a wide variety of complex supervisory,
administrative, and clerical tasks, either personally or through
subordinate supervisors, in managing non-judicial functions of a large
Municipal or Family Court system.
Doc. 35-13.

The “License/Certification Required” section of the position

description lists “Ability to be certified as a Magistrate” as a licensure or
certification requirement for the position. Id.
Ms. Dudley submitted an application for the position to the Personnel Board
of Jefferson County. Doc. 35-16; Doc. 35-6 at 50. The mayor of Bessemer at the
time, Ed May, interviewed Ms. Dudley for the position and selected her on January
30, 2007. Doc. 35-2.1 Ms. Dudley knew Mayor May before she began working
for the City because she and Mayor May went to church together. In fact, she
1

The parties dispute whether Ms. Dudley’s name appeared on the list of candidates for the
position of Chief Court Clerk that the Personnel Board certified. Compare Doc. 35-2 with Doc.
36 at 3. This factual dispute is not material to the resolution of the defendants’ summary
judgment motion.

3

listed him as a reference on her employment application. Doc. 35-6 at 48-49; Doc.
35-16.
When Mayor May interviewed Ms. Dudley and several other candidates for
the position of Chief Court Clerk, Mayor May “was fully aware” that Ms. Dudley
had a criminal history. Doc. 35-1, p. 2. The application for the position contains a
section labeled “Criminal History.” In that section, the application asks: “Have
you ever been convicted of a state or federal felony criminal offense?” Doc. 3516, p. 4. Ms. Dudley answered “yes.” Id.
As it turns out, in March 2004, Ms. Dudley pled guilty to federal charges
concerning a wire fraud scheme relating to real estate closings. Ms. Dudley was
the closing attorney for the real estate transactions.2 See Doc. 35-3, Ex. 3; Doc. 336; Doc. 35-6 at 22-24. Pursuant to her plea agreement, Ms. Dudley served five
months in a federal prison camp and five months of probation. Doc. 35-6 at 37-38.
Mayor May attests that he “specifically discussed the issue of [Ms.
Dudley’s] prior conviction with the City attorney at the time,” and he “received
clearance from the City Attorney to hire her.” Doc. 35-1, pp. 2-3. Mayor May
added that Ms. Dudley’s “prior criminal conviction did not adversely impact her
ability to perform her job as Chief Court Clerk.” Doc. 35-1, p. 2. In fact, during
2

Ms. Dudley’s law license was suspended for a period of three years as a result of her conviction
and has not been restored because she worked at a law firm during the suspension without
receiving written permission. Doc. 33-18; Doc. 35-6 at 41-43.

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her tenure with the City, Ms. Dudley received several merit pay increases, and she
never was disciplined. Doc. 35-8, p. 13.
When she began her job, both Mayor May and Travis Brooks, the acting city
clerk and Principal Accountant for the City, supervised Ms. Dudley. Doc. 35-5;
Doc. 35-4 at 27, 30-33, 38. Mayor May, Mr. Brooks, and Ms. Dudley all regarded
Ms. Dudley as a “department head” during Mayor May’s tenure. Doc. 35-1; Doc.
35-5; Doc. 35-4 at 40. Neither Mayor May nor his successor, Mayor Gulley, ever
asked Ms. Dudley to become certified as a magistrate during her tenure with the
City. Doc. 35-5.
In the November 2010 mayoral election, Ed May lost to Kenneth Gulley.
See Doc. 35-3 at 8, 21-23. Shortly after his election, Mayor Gulley introduced the
city department heads at a city council meeting, and he introduced Ms. Dudley as
the department head of Municipal Court. Doc. 35-4 at 54-55; Doc. 35-5. After he
held his first department head meeting, Mayor Dudley concluded that too many
people attended the meeting.

Consequently, Mayor Gulley changed the

department head structure so that only City employees who reported directly to the
mayor would attend department head meetings. Doc. 35-3 at 41, 52-54. Mayor
Gulley’s definition of a department head excluded Ms. Dudley who Mayor Gulley
believed was supervised by Mr. Brooks and other male employees. See Doc. 35-3
at 52-54.

5

Initially, Mr. Brooks, who was the acting city clerk when Mayor Gulley took
office, served as the department head for the Municipal Court and attended
department head meetings with Mayor Gulley. Id. at 41, 47. Shortly after Mayor
Gulley took office, Beverly Wheeler replaced Mr. Brooks. She became the acting
city clerk and the department head. See Doc. 35-4 at 30, 52; Doc. 35-3 at 97.
Despite their “acting city clerk” titles, both Mr. Brooks and Ms. Wheeler retained
their accounting positions for purposes of Personnel Board classification. Doc. 353 at 42; Doc. 35-4 at 27, 30-33.
According to the defendants, in February or March 2011, shortly after
Mayor Gulley took office, he received complaints from some of the Municipal
Court employees both about Ms. Dudley and about working conditions at the court
that were unrelated to Ms. Dudley’s management, such as cramped working
conditions. See Doc. 35-3 at 55-67.3 Mayor Dudley, Ms. Wheeler, and City
Attorney Shan Paden met with Ms. Dudley and several of the employees she
supervised to discuss these issues. Id. Mayor Gulley testified that he did not
conduct similar meetings in other city departments because he did not receive
complaints from those employees. Id. No changes were made as a result of the
complaints, and Mayor Gulley essentially told the complaining employees to
3

Ms. Dudley offered evidence that contradicts the defendants’ contention that City employees
who worked with Ms. Dudley complained about her. Doc. 35-2. The defendants challenge the
admissibility of this evidence. Doc. 37. Although the Court must view the evidence in the light
most favorable to Ms. Dudley, the Court does not need to reach this evidence to resolve the
defendants’ summary judgment motion.
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continue doing their jobs. He told Ms. Dudley to make sure that she was in control
of her department. Id. at 64-67. Ms. Dudley reports that during her meeting with
Mayor Gulley, he screamed at her and told her she was not qualified to manage the
office. Doc. 35-6 at 169-72. She testified that he looked like he was holding
himself back from attacking her. Id.
Coincidentally, in February or March 2011, Mayor Gulley learned of Ms.
Dudley’s criminal conviction and asked his legal team to investigate it. Doc. 35-3
at 76-77.

On April 11, 2011, the City issued a Notice of Contemplated

Disciplinary Action to Ms. Dudley for violation of the Personnel Board rules. The
notice cited a violation of Rule 12.2(o) based on Ms. Dudley’s “inability to
perform the essential functions of the job with or without reasonable
accommodation,” referring specifically to her “inability to be certified as a
magistrate due to a prior felony conviction.” Doc. 35-3, Ex. 3. The notice also
cited a violation of Rule 12.2(p) “which provides that ‘[a]ny other legitimate and
nondiscriminatory reason that constitutes good cause for disciplinary action, is
reasonably specific, is consistent with the Act and these Rules, and is not
motivated by any non-work-related preferences or animus for or against any
person’” may be a basis for discipline. Doc. 35-3, Ex. 3. The notice stated that
Ms. Dudley could not be certified as a magistrate because she could not meet the
requirements established by the Alabama Code for public officers.

7

See id.

Alabama Code § 36-2-1 disqualifies any person who is convicted of a crime
punishable by imprisonment in a federal penitentiary from holding public office.
The City held a disciplinary hearing on the matter on April 14, 2011, and the
City terminated Ms. Dudley later that month.

Doc. 33-9 at 3.

Ms. Dudley

contends that Maurice Mohammed, the next person hired at the Municipal Court,
replaced her. See Doc. 35-3 at 40; Doc. 35-4 at 40-41. According to the City, it
has eliminated the Chief Court Clerk position; however, Gwen Horn is now the
Principal Court Clerk and has assumed most of Ms. Dudley’s former
responsibilities. Doc. 35-3 at 45-48.
Ms. Dudley appealed her termination to the Personnel Board and had a
hearing before a hearing officer pursuant to the Personnel Board rules on August 2,
2011. Both Ms. Dudley and the City were represented by counsel who participated
in a pre-hearing conference, presented witnesses at the hearing, and filed posthearing briefs. Doc. 35-8, pp. 7-8. In a nine-page “Finding of Fact and Law and
Recommended Decision,” the hearing officer found that, “[t]he stated grounds for
[Ms. Dudley’s] termination were all related to her conviction. These grounds were
valid and nondiscriminatory reasons for termination.” Doc. 35-8, p. 10. The
hearing officer noted that Ms. Dudley “argue[d] that her termination, by the
suspicious nature of its timing, is purely political, and not based on issues of either
law or merit.” Doc. 35-8, p. 12. Ultimately, the hearing officer “concur[red] with

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the Mayor that the substantial evidence supports the conclusion that DUDLEY’S
status as a convicted felon constitutes a sufficient basis for her discipline ‘for
cause’ pursuant to Rule 12.2(o) and/or Rule 12.2(p). The appropriate discipline
herein is termination of employment.” Id. (emphasis in Finding of Fact and Law
and Recommended Decision).
The Personnel Board reviewed and affirmed the hearing officer’s decision.
Doc. 33-10; Doc. 35-8, p. 3. Ms. Dudley attempted to appeal the Personnel
Board’s decision to the Alabama Circuit Court, but the court deemed her appeal
untimely. Doc. 33-11.
On May 10, 2011, Ms. Dudley filed a Charge of Discrimination with the
Equal Employment Opportunity Commission (“EEOC”). Doc. 15-1. Ms. Dudley
received a right to sue letter from the EEOC, which is dated February 3, 2012, and
she filed her complaint in this case on time. See Doc. 15-2.
III. ANALYSIS
A. § 1983 Issue Preclusion
The City and Mayor Gulley ask the Court to enter judgment for them on Ms.
Dudley’s § 1983 claim because, they argue, the Personnel Board’s decision in
favor of the City precludes Ms. Dudley’s claim. State agency decisions that are
not reviewed by a state court may preclude litigation over issues resolved in the
administrative proceeding if the state agency decision meets the test articulated in

9

University of Tennessee v. Elliott, 478 U.S. 788 (1986).4 See Gjellum v. City of
Birmingham, Ala., 829 F.2d 1056, 1062 (11th Cir. 1987);5 Rigby v. Marshall, 134
F. Supp. 2d 1259, 1262 (M.D. Ala. 2000). In Elliott, the Supreme Court held that
“when a state agency ‘acting in a judicial capacity . . . resolves disputed issues of
fact properly before it which the parties have had an adequate opportunity to
litigate,’ federal courts must give the agency’s factfinding the same preclusive
effect to which it would be entitled in the State’s courts.” 478 U.S. at 799 (quoting
Utah Construction & Mining Co., supra, 384 U.S. 394, 422 (1966)). Relying on
Elliott, the City contends that the findings of the hearing officer preclude Ms.
Dudley’s § 1983 claims because Ms. Dudley “had an adequate opportunity to
litigate the dispositive issues and facts regarding her claims in a trial-type hearing
before the [Personnel Board].” Doc. 33, p. 22.

4

Because the Personnel Board’s decision in this case was not reviewed by an Alabama state
court on the merits, this Court will treat it as effectively being unreviewed. See Doc. 33-11. As
discussed below, Plaintiff had a full and fair opportunity to litigate her case at the administrative
level. Contrary to her assertions, it is irrelevant for purposes of the § 1983 preclusion analysis
whether and why her appeal of the Personnel Board’s decision to the Alabama Circuit Court was
not perfected. Because her case was not reviewed by a state court on the merits, however, her
Title VII claim is not precluded. See Bishop v. City of Birmingham Police Dep't, 361 F.3d 607,
610 (11th Cir. 2004) (“[t]he clear teaching of Elliott is that in a Title VII action a prior state
decision enjoys issue preclusive effect only if rendered or reviewed by a court.... In contrast,
unreviewed administrative determinations lack preclusive effect in a subsequent Title VII action,
regardless of any preclusive effect state law might accord to them.”) (internal citation and
quotations omitted).
5

In Gjellum, the Eleventh Circuit made clear that Elliott pertains to issue preclusion, not claim
preclusion. 829 F.2d at 1070.

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Ms. Dudley argues, in reply, that Elliott’s principles concerning issue
preclusion do not apply in this case for a number of reasons. First, Ms. Dudley
argues that the Personnel Board is not a “state agency” within the meaning of
Elliott because it operates only within Jefferson County. This Court disagrees with
Ms. Dudley’s analysis. The Alabama Legislature created the Personnel Board, see
Act No. 248, Ala. Acts 1945, and the Eleventh Circuit has treated similar
administrative agencies that operate at the local level as state agencies for issue
preclusion purposes. See Bishop v. City of Birmingham Police Dep't, 361 F.3d
607, 610 (11th Cir. 2004) (referring to the Jefferson County Personnel Board as
“an independent state agency” but holding that preclusion did not apply because
claim at issue was brought under Title VII, not § 1983); Travers v. Jones, 323 F.3d
1294, 1296 (11th Cir. 2003) (applying Elliott preclusion to a merit system hearing
decision made pursuant to the Code of DeKalb County, Georgia); Crosby v.
Mobile Cnty., 2005 WL 6133115, at *15 (S.D. Ala. Sept. 15, 2005), as amended
(Oct. 13, 2005), overruled on other grounds, Crosby v. Mobile Cnty. Pers. Bd.,
2007 WL 245126 (11th Cir. Jan. 30, 2007) (noting that a decision of the Mobile
County Personnel Board would have precluded a § 1983 claim filed by plaintiff);
cf. Ex parte Chambers, 137 So. 3d 912, 915 n.3 (Ala. Civ. App. 2013) (Jefferson
County Personnel Board “is not a state agency as to whose orders appellate review
is governed by the [Alabama Administrative Procedure Act]”).

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The Court finds that the Personnel Board is a state administrative agency for
purposes of issue preclusion under Elliott. Consequently, the Personnel Board’s
findings regarding the issues before it are binding on this Court to the extent that
those findings would have preclusive effect in Alabama state courts.6 In Alabama,
state agency decisions have issue preclusive effect if:
(1) there is identity of the parties or their privies; (2) there is identity
of issues; (3) the parties had an adequate opportunity to litigate the
issues in the administrative proceeding; (4) the issues to be estopped
were actually litigated and determined in the administrative
proceeding; and (5) the findings on the issues to be estopped were
necessary to the administrative decision.
Petty v. United Plating, Inc., 2012 WL 2047532, at *11 (N.D. Ala. May 31, 2012)
(quoting Ex Parte Shelby Medical Center, Inc., 564 So.2d 63, 68 (Ala.1990)); see
also Rigby, 134 F. Supp. 2d at 1262.
Here, there is identity of the parties. Ms. Dudley and a division of the City,
its Municipal Court, were the official parties to the Personnel Board proceeding.
Because he is Mayor of Bessemer and the person who decided to terminate Ms.
Dudley, Mayor Gulley has privity with the City for purposes of preclusion
analysis.7

6

It is undisputed that the hearing officer and the Personnel Board were acting in a judicial
capacity and that the issues related to Ms. Dudley’s termination were properly before them.
7

See Griswold v. Cnty. of Hillsborough, 598 F.3d 1289, 1292 (11th Cir. 2010) (“As a general
rule, “one is not bound by a judgment in personam in a litigation in which he is not designated as
a party or to which he has not been made a party by service of process.” [Taylor v. Sturgell, 553
U.S. 880, 128 S.Ct. 2161, 2171 (2008)] (quoting Hansberry v. Lee, 311 U.S. 32, 40, 61 S.Ct.
12

There also is identity of issues between the Personnel Board proceeding and
Ms. Dudley’s § 1983 claim in this litigation. Both matters concern the reason for
Ms. Dudley’s termination. The hearing officer was charged with determining
whether Ms. Dudley was terminated for an “inability to perform the essential
functions of the job with or without reasonable accommodation” and “[a]ny other
legitimate and nondiscriminatory reason that constitutes good cause for
disciplinary action, is reasonably specific, is consistent with the Act and these
Rules, and is not motivated by any non-work-related preferences or animus for or
against any person.” Doc. 33-9 at 3. Similarly, in a § 1983 action, a court must
evaluate whether a plaintiff was qualified for her job and whether her employer’s
proffered legitimate, nondiscriminatory reason for terminating her was a pretext for
discrimination. See Marshall v. Mayor and Alderman of the City of Savannah,
Ga., 366 Fed. Appx. 91, 97-98 (11th Cir. 2010); Busby v. City of Orlando, 931
F.2d 764, 777 (11th Cir. 1991).

115, 117, 85 L.Ed. 22 (1940)). The rule against nonparty preclusion, however, is subject to six
categories of exceptions. Id. at 2172. A court may apply nonparty preclusion if: (1) the nonparty
agreed to be bound by the litigation of others; (2) a substantive legal relationship existed between
the person to be bound and a party to the judgment; (3) the nonparty was adequately represented
by someone who was a party to the suit; (4) the nonparty assumed control over the litigation in
which the judgment was issued; (5) a party attempted to relitigate issues through a proxy; or (6) a
statutory scheme foreclosed successive litigation by nonlitigants. See id. at 2172–73.”); see also
Doc. 35-8, p. 12 (finding by hearing officer that he “concur[red] with the Mayor that the
substantial evidence supports the conclusion that DUDLEY’S status as a convicted felon
constitutes a sufficient basis for her discipline ‘for cause’ pursuant to Rule 12.2(o) and/or Rule
12.2(p). The appropriate discipline herein is termination of employment.”)

13

The parties had an adequate opportunity to litigate these issues during the
Personnel Board proceeding. See Doc. 33-1 at 49-50. Both Ms. Dudley and the
City had the chance to subpoena witnesses, present testimony, and offer other
evidence in support their respective positions. See Doc. 33-1 at 50. Both parties
were represented by counsel.

Those attorneys participated in a pre-trial

conference, examined witnesses during the hearing, and filed post-hearing briefs.
Id. at 2-3; Doc. 35-8, pp. 7-8. At the conclusion of the hearing and briefing, the
hearing officer issued a nine-page “Finding of Fact and Law and Recommended
Decision,” which the Personnel Board reviewed and adopted. Doc. 33-9; Doc. 3310; Doc. 35-8, pp. 3-14. The issues that the Personnel Board’s decision precludes
from re-litigation in this action were necessary to the administrative decision.
Indeed, determining whether the City terminated Ms. Dudley for a legitimate, nondiscriminatory reason or for non-work-related preferences or animus for or against
her was at the heart of the hearing officer’s and Personnel Board’s decisions.
In the administrative proceedings, the parties litigated, and the hearing
officer and Personnel Board decided, the issues that have preclusive effect in this
action.

During those proceedings, Ms. Dudley did not present evidence that

suggested that sex discrimination was the real reason for her termination. Instead,
she argued before the hearing officer that she was fired for purely political reasons.
Doc. 33-9, p. 8; Doc. 35-8, p. 12.

Her failure to identify and prove facts

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concerning alleged discrimination that were known to her at the time of the
administrative proceeding does not allow her to evade issue preclusion in this
action. As Judge Thompson recognized in a similar situation involving a § 1983
claim, “[b]ecause these facts were known to [plaintiff] at the hearing, they could
have, and should have, been raised.” Rigby, 134 F. Supp. 2d at 1264 (plaintiff’s
failure to mention during his unemployment compensation benefit appeal a
campaign of harassment against him did not prevent the application of issue
preclusion to the plaintiff’s federal § 1983 claim such that plaintiff was estopped
from presenting arguments or proof in the § 1983 action that he was terminated for
a reason other than that found by the administrative referee).
Thus, the Personnel Board’s decision would have preclusive effect in an
Alabama state court, and it has the same effect here. The administrative decision
precludes Ms. Dudley from offering in support of her § 1983 claim arguments or
proof that is inconsistent with the evidence and the arguments that she presented in
the administrative proceedings. The hearing officer and the Personnel Board found
that the City’s reasons for terminating her – namely her inability to hold public
office or to be certified as a magistrate because of her criminal conviction – were
“valid and nondiscriminatory reasons for termination.”

Doc. 33-9 at 6.

Consequently, as a matter of law, Ms. Dudley cannot demonstrate that she was
fired because of discrimination, and she cannot prove that the City’s proffered

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reasons for her termination were mere pretext. See Rawlinson v. Whitney Nat.
Bank, 416 F. Supp. 2d 1263, 1274 (M.D. Ala. 2005) (“to prevail under § 1983
where the plaintiff relies on circumstantial evidence, the plaintiff must show that
the impermissible factor was ‘the’ motivating factor for the adverse-employment
action”); see also Ross v. Renaissance Montgomery Hotel & Spa at the Convention
Ctr., 2:11-CV-301-MEF, 2012 WL 1032618, at *5-6 (M.D. Ala. Mar. 27, 2012)
(due to collateral estoppel, court must accept that plaintiff was fired for misconduct
and not because of his age).8
Therefore, the Court grants the defendants’ motion for summary judgment
on Ms. Dudley’s § 1983 claims. See Rigby, 134 F. Supp. 2d at 1264.
B. Title VII Claim Against the City
Because the doctrine of issue preclusion does not impact Ms. Dudley’s Title
VII discrimination claim against the City, the Court reaches the merits of that
claim.

See Elliott, 478 U.S. at 796.

A plaintiff may establish a claim of

discrimination “through direct evidence, circumstantial evidence, or through
statistical proof.” Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir.

8

In addition, because Ms. Dudley’s termination was subject to meaningful administrative review
by the Personnel Board, Mayor Gulley lacked the final policymaking authority required to
subject the City to § 1983 liability. See Scala v. City of Winter Park, 116 F.3d 1396, 1399, 1401
(11th Cir. 1997) (“municipal liability [under § 1983] may be imposed for a single decision by
municipal policymakers under appropriate circumstances;” however, “final policymaking
authority over a particular subject area does not vest in an official whose decisions in the area are
subject to meaningful administrative review”) (internal quotations and citations omitted).

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2008). Ms. Dudley has not offered direct evidence of discrimination, so the Court
must analyze her discrimination claim under the familiar burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To
establish a prima facie case of sex discrimination, Ms. Dudley must show that (1)
she is a member of a protected class; (2) she was subjected to an adverse
employment action; (3) she was qualified for the job; and (4) she was replaced by
someone outside of her protected class, or similarly situated males were treated
more favorably. Maynard v. Bd. of Regents of Div. of Universities of Florida Dep't
of Educ. ex rel. Univ. of S. Florida, 342 F.3d 1281, 1289 (11th Cir. 2003).
It is undisputed that Ms. Dudley is a member of a protected class and that
she suffered an adverse employment action when she was terminated. Defendants
contend, however, that Ms. Dudley was not objectively qualified for her job. The
Court agrees.9
It is undisputed that when Ms. Dudley applied to become the Chief Court
Clerk for the City of Bessemer Municipal Courts, the job description listed
“Ability to be certified as a Magistrate” as a licensure or certification requirement
for the position. Doc. 35-13. Under Alabama law, a magistrate “must meet the

9

The defendants also argue that Ms. Dudley was neither replaced by someone outside her
protected class nor treated less favorably than similarly situated males. The Court does not reach
this argument.
17

general requirements established by law for public officers.” Doc. 33-6 at 6, 8.
Alabama Code § 36-2-1 provides that “[t]hose who shall have been convicted of
treason, embezzlement of public funds, malfeasance in office, larceny, bribery or
any other crime punishable by imprisonment in the state or federal penitentiary”
are “ineligible to and disqualified from holding office under the authority of this
state.” Ala. Code § 36-2-1 (1975). Therefore, as a matter of law, Ms. Dudley
could not be “certified as a Magistrate” because of her federal criminal
conviction.10 Doc. 35-13. Consequently, she did not meet the objective magistrate
qualification for Chief Court Clerk.
The Court cannot infer that Ms. Dudley was qualified for her position even
though she held it for four years because she lacked an objective requirement for
the job. See, e.g., Anderson v. Embarq/Sprint, 379 Fed. Appx. 924, 929 (11th Cir.
2010) (plaintiff could not establish he was qualified for his job where he could not
perform the physical requirements of it, such as frequently lifting up to 70 pounds);
Samuels v. Univ. of S. Ala., 153 Fed. Appx. 612, 614 (11th Cir. 2005) (plaintiff did
not establish she was qualified for position of Ultrasonographer II despite already
holding the job where she lacked the requisite certification); Santillana v. Florida
State Court Sys., 2011 WL 722765, at *16 (M.D. Fla. Feb. 23, 2011) aff'd, 450
10

Although the parties dispute whether the Personnel Board placed Ms. Dudley’s name on a list
of certified candidates eligible for the Chief Court Clerk position, there is no dispute that the
“ability to be certified as a Magistrate” was listed on the position description for which Ms.
Dudley applied.
18

Fed. Appx. 840 (11th Cir. 2012) (plaintiff failed to show she was qualified for
position she held where she could not demonstrate that she met all the objective
requirements in the job announcement); Brady v. Santa Sweets, Inc., 2007 WL
1017670, at *7 (M.D. Fla. Mar. 30, 2007) (plaintiff could not show he was
qualified for job where defendant changed job requirements during plaintiff’s
tenure).11 Even if the Court were to consider it, Mayor May’s affidavit does not
help Ms. Dudley. He stated that he “specifically discussed the issue of [Ms.
Dudley’s] prior conviction with the City attorney” before he hired Ms. Dudley, and
he “received clearance from the City Attorney to hire her.” Doc. 35-1, pp. 2-3.
That does not mean that Ms. Dudley met the licensure requirement, and Mayor
May does not state that she did.
Because Ms. Dudley has not established that she met the objective criteria
for Chief Court Clerk, the Court grants the City’s motion for summary judgment

11

Ms. Dudley cites a number of Eleventh Circuit opinions for the proposition that this Court
should infer that she was qualified for her position. Those opinions concern plaintiffs’
qualifications based on subjective criteria, such as poor performance. See Rosenfield v.
Wellington Leisure Products, Inc., 827 F.2d 1493, 1495 n.2 (11th Cir. 1987); Parris v. Keystone
Foods, LLC, 959 F. Supp. 2d 1291, 1305 (N.D. Ala. 2013). Only one of the opinions that Ms.
Dudley cites supports her argument that a plaintiff may be qualified even if she does not meet
objective criteria. See Fejes v. Gilpin Ventures, Inc., 960 F. Supp. 1487, 1493 (D. Colo. 1997).
Fejes was decided under the standard employed in the Tenth Circuit, which differs from the
Eleventh Circuit’s standard. In addition, the plaintiff in Fejes presented evidence that the
licensure requirement was not uniformly applied. Id. at 1494. Ms. Dudley presented no such
evidence here.

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on Ms. Dudley’s Title VII claim.
C. Assault Claim Against Mayor Gulley
Because the Court grants summary judgment on Ms. Dudley’s federal
claims, the Court declines to exercise supplemental jurisdiction over her state law
assault claim against Mayor Gulley and will dismiss it without prejudice. See 28
U.S.C. § 1367(c)(3) (court may decline to exercise such supplemental jurisdiction
if it has dismissed all claims over which it has original jurisdiction); Mergens v.
Dreyfoos, 166 F.3d 1114, 1119 (11th Cir. 1999) (dismissal of state law claims
pursuant to § 1367(c) is encouraged if federal claims dismissed prior to trial).
Accordingly, the Court finds that the state law claim remaining in this action is
best resolved by an Alabama state court if Ms. Dudley chooses to re-file her assault
claim in that forum. See 28 U.S.C. § 1367(d) (“The period of limitations for any
claim asserted under subsection (a), and for any other claim in the same action that
is voluntarily dismissed at the same time as or after the dismissal of the claim
under subsection (a), shall be tolled while the claim is pending and for a period of
30 days after it is dismissed unless [Alabama] law provides for a longer tolling
period.”).
IV. CONCLUSION
The Court GRANTS the defendants’ motion for summary judgment with
respect to Ms. Dudley’s § 1983 and Title VII claims, and the Court DISMISSES

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her state law assault claim without prejudice. In light of this disposition, the
Court deems the defendants’ motion to strike MOOT. The Court asks the Clerk
to please TERM Docs. 33 and 37. The Court will enter an order consistent with
this memorandum opinion.
DONE and ORDERED this September 29, 2014.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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