Smith et al v. Birmingham, City of et al

Filing 32

MEMORANDUM OPINION. Signed by Judge Inge P Johnson on 1/23/13. (ASL)

FILED
2013 Jan-23 PM 03:59
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JEFFREY L. SMITH, et al.,
PLAINTIFFS,
vs.

CASE NO. CV 12-J-3493-S

BIRMINGHAM WATER WORKS,
et al.,
DEFENDANTS.
MEMORANDUM OPINION
Pending before the court is the motion to dismiss of the Water Works Board
of the City of Birmingham (“BWWB”), and well as BWWB individual employees,
sued in both their official capacity and individually,1 and a brief in support of said
motion (docs. 22 and 22-1). The plaintiffs have filed a response (doc. 29) and a
motion to dismiss certain claims (doc. 30). Also pending is a motion to dismiss and
memorandum filed by defendant Darryl Davis (docs. 26 and 27) to which the
plaintiffs have filed a response (doc. 31). Having considered the foregoing, the court
finds as follows:

1

The individual defendants filing this motion are Jeff Standridge, Jeff Jenkins, Keith
Watt, Reginald Nall, Mac Underwood, and Paul Lloyd. The court shall collectively refer to them
as “the BWWB defendants.”

FACTUAL BACKGROUND
The plaintiffs were all employees of the BWWB. Amended complaint, ¶ 13.
They were all supervised by defendant Darryl Davis, also an employee of the BWWB.
Id., at ¶ 14. In turn, Davis was supervised by defendant Jeff Standridge. Id., at ¶ 15.
Standridge2 was supervised by defendant Jeff Jenkins, Jenkins was supervised by
defendant Keith Witt, and Witt was supervised by defendant Reginald Nall.3 Id., at
¶¶ 16-18. All of these defendants were under the supervision of defendant Mac
Underwood, General Manager of the BWWB. Id., at ¶ 19. According to the
plaintiffs, they were all excellent employees until their termination in August 2012.
Id., at ¶¶ 1-8, p. 4-6.4 They further allege that until March 2012, none of them were
required to work any significant amounts of overtime. Id., at ¶ 9, p. 6.
Beginning in March 2012 defendant Davis required the plaintiffs to work
overtime hours on weekends, laying sod around fire hydrants. Amended complaint,
¶ 10, p. 6. The plaintiffs were paid for these overtime hours. Id. However, also

2

The plaintiffs refer to this individual as “Jeff Stanridge.” In defendants memorandum,
they refer to him as “Jeff Standridge.” The court has adopted the defendants’ spelling.
3

In the motion to dismiss (doc. 22), defendants spell this name as “Reginald Nall”
whereas plaintiffs refer to him as “Reginald Knoll.” The court has used the spelling supplied by
counsel for Mr. Nall throughout this opinion.
4

Because the amended complaint has multiple paragraphs with the same numbering, the
court shall cite to the second set of similarly numbered paragraphs by reference to the page
number in addition to the paragraph numbers.
2

beginning in March 2012, the plaintiffs allege that defendant Davis was adding more
than the number of overtime hours they each worked to their time sheets. Id., at ¶¶
15-16, pp. 7-8. In return, he then required each of the plaintiffs to pay him their
“extra” wages in cash. Id., at ¶¶ 19, 24, p. 8, 9-10. Additionally, the plaintiffs allege
defendant Davis required the plaintiffs to make payments to him for his daughter’s
cheerleading camp, purchases of Avon lotion his daughter sold, and make
contributions to various charities. Id., at ¶ 19, p. 8. According to plaintiffs, other
supervisors at BWWB were aware of his solicitations. Id., at ¶ 20, p. 8-9. When
plaintiffs inquired concerning the payments, defendant Davis advised them to “keep
our mouth shut.” Id., at ¶ 21, p. 9. This activity continued until late July 2012 when
the plaintiffs refused to pay defendant Davis any more money. Id., at ¶ 25, p. 10.
The plaintiffs allege they reported defendant Davis’ actions to the Human
Resources manager, defendant Paul Lloyd, who informed plaintiffs he would side
with Davis. Id., at ¶ 32, p. 11. The plaintiffs allege they were told the same thing by
defendant Nall when they tried to complain to him. Id., at ¶ 33. Plaintiff Lay then
reported Davis’ actions to BWWB supervisor Carol Duncan, who went to Security
Director Jones regarding Davis. Id., at ¶¶ 35-36, pp. 11-12. Thereafter, on July 26,
2012, the plaintiffs were called individually to the BWWB main office to be
questioned by defendant Underwood, defendant Lloyd, and Security Director Jones.
3

Id., at ¶ 38, p. 12. The BWWB then took the plaintiffs individually to the
Birmingham Police Department. Id., at ¶¶ 41-42, p. 13. The following week, all of
the plaintiffs were fired. Id.
Based on this set of facts, the plaintiffs brought claims for due process
violations pursuant to 42 U.S.C. § 1982 (Count I); retaliation for protected speech
pursuant to 42 U.S.C. §1983 (Count II); prevention of free speech (Count III); outrage
(Count IV); conspiracy to terminate employees for exercising free speech (Count V);
and tortious interference (Count VI).
By motion, the plaintiffs request that the court dismiss Counts V and VI of the
amended complaint against defendant BWWB. The court having considered said
motion and being of the opinion said motion is due to be granted, the court shall grant
the plaintiffs’ motion to dismiss Counts V and VI (doc. 30) against defendant
BWWB.
STANDARD OF REVIEW
In considering a motion to dismiss, the court must construe “the allegations of
the complaint as true and construe them ‘in the light most favorable to the plaintiff.'"
Simmons v. Sonyika, 394 F.3d 1335, 1338 (11th Cir.2004); citing Hill v. White, 321
F.3d 1334, 1335 (11th Cir.2003). See also Erickson v. Pardus, 551 U.S. 89, 94, 127
S.Ct. 2197, 2200 (2007). A court should not dismiss a suit on the pleadings alone
4

“unless it appears beyond doubt that the plaintiff can prove no set of facts in support
of his claim.” Beck v. Deloitte & Touche, Deloitte, Haskins & Sells, Ernest & Young,
L.L.P., 144 F.3d 732, 735 (11th Cir.1998)(quoting Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)).
To satisfy the pleading requirements of the Federal Rules of Civil Procedure,
a complaint must contain a short and plain statement showing an entitlement to relief,
and must “give the defendant fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.” Bell Atlantic Corporation v. Twombly, 550 U.S. 544,
555, 127 S.Ct. 1955 (2007)(citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512,
122 S.Ct. 992, 152 L.Ed.2d 1 (2002)). To survive a motion to dismiss, a plaintiff's
complaint must include “enough facts to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570, 127 S.Ct. at 1974.
LEGAL ANALYSIS
1. Plaintiffs’ allegations against defendants Witt, Jenkins and Standridge:
Defendants assert that the plaintiffs have stated no allegations against
defendants Witt and Jenkins, and deleted their reference to defendant Standridge in
their amended complaint. BWWB defendants’ memorandum, at 5. Plaintiffs respond
that, as each of these defendants was a supervisor of defendant Davis, the court may
“draw a reasonable inference that these defendants knew of and condoned defendant
5

Davis’ actions.”
As to defendant Standridge, the court finds that although a close question, the
amended complaint sets forth facts sufficient to draw such an inference.5 See e.g.,
amended complaint, ¶¶ 17, 34. However, the court cannot draw the same conclusion
as to defendants Witt and Jenkins. The plaintiffs do not allege that they ever reported
defendant Davis’ alleged actions to either of these supervisors or that either of these
defendants were present on July 26, 2012, or at any other relevant time such that they
could have known of defendant Davis’ actions. The plaintiffs’ amended complaint
“do[es] not permit the court to infer more than the mere possibility of misconduct,”
against defendants Witt and Jenkins, hence the complaint stops short of showing the
plaintiffs are entitled to relief. Ashcroft v. Iqbal 129 S.Ct. 1937, 1950 (2009); citing
Fed.R.Civ. Proc. 8(a)(2).
The court shall therefore grant the motion to dismiss the first amended
complaint against defendants Witt and Jenkins, but deny the same as to defendant
Standridge.
2. The § 1982 Due Process Claim:
Defendants seek to have this claim (Count I of the amended complaint)

5

However, the amended complaint also sets forth allegations leading to an inference that
Davis lied to Standridge when Standridge questioned the overtime amounts on plaintiffs’
paychecks. Amended complaint, at p. 8
6

dismissed on the ground that §1982 applies to claims for race discrimination.
BWWB defendant’s memorandum, at 6; defendant Davis’ memorandum, at 8. The
plaintiffs respond that the designation of Count I pursuant to §1982 is a clerical error
and that the plaintiffs meant to state this claim pursuant to §1983.6 The plaintiffs
further seek by footnote to amend their complaint to correct this error. Plaintiffs’
response, at 7 n.2.
Having considered the defendants’ argument and the plaintiffs’ response, the
court is of the opinion that the motion is due to be granted to the extent that Count I,
as stated in the amended complaint, is due to be dismissed without prejudice. The
plaintiffs will be given leave to file an amended complaint setting forth a cause of
action for which relief may be granted.
Similarly, the defendants assert that the plaintiffs had no property rights in their
employment with the BWWB as asserted in Count I of the amended complaint.
BWWB defendants’ memorandum, at 7; defendant Davis’ memorandum, at 9. The
plaintiffs respond that they do not dispute that Alabama is an “at will” employment
state nor that whether someone is an “at will employee” is determined by state law.
Plaintiffs’ response, at 7. However, the plaintiffs then argue that because they were

6

The court questions whether the reference to “deprivation of rights guaranteed by the
Fourth and Fourteenth Amendments” in paragraph 2 of the amended complaint is similarly a
typographical error.
7

terminated for “cause,” they ceased being “at will” employees. Because the court has
already determined that Count I of the amended complaint is due to be dismissed as
plaintiffs concede they have no cause of action under § 1982, the court does not delve
into this argument at this time.
3. First Amendment Retaliation:
The BWWB defendants assert that plaintiff’s claim for First Amendment
retaliation, as set forth in Count II of the amended complaint, is due to be dismissed.
BWWB defendant’s memorandum, at 9. These defendants allege that because
plaintiffs were terminated for suspected criminal conduct, there is no First
Amendment protection.7 Id. Both plaintiffs and defendants agree that a First
Amendment retaliatory discharge claim is examined under the four part test set out
in Bryson v. City of Waycross, 888 F.2d 1562 (11th Cir.1989).
The Bryson test examines: “(1) whether the employee’s speech involves a
matter of public concern, (2) whether the employee’s interest in speaking outweighs
the government’s legitimate interest in efficient public service, (3) whether the speech
played a substantial part in the government’s challenged employment decision, and
(4) whether the government would have made the same employment decision in the

7

As this issue is before the court on a motion to dismiss, the court has no evidence before
it as to why the plaintiffs were terminated.
8

absence of the protected conduct.” Beckwith v. City of Daytona Beach Shores, 58
F.3d 1554, 1563 (11th Cir.1995) (citing Bryson, 888 F.2d at 1565–66).
Applying this test, the first element states that a government employee’s speech
is protected under the First Amendment if it touches on a matter of public concern.
Akins v. Fulton County, 420 F.3d 1293, 1304 (11th Cir.2005). See also Travers v.
Jones, 323 F.3d 1294, 1295-96 (11th Cir.2003) (“The law is clearly established that
an employer may not demote or discharge a public employee for engaging in
protected speech.”). In determining whether an employee’s speech touched on a
matter of public concern, the court looks to “the content, form, and context of a given
statement, as revealed by the whole record.” Connick v. Myers, 461 U.S. 138, 147148, 103 S.Ct. 1684, 1690-1691 (1983). Thus the court must examine whether the
“main thrust” of the speech in question is essentially public in nature or private,
Maggio v. Sipple, 211 F.3d 1346, 1352 (11th Cir.2000), whether the speech was
communicated to the public at large or privately to an individual, Kurtz v. Vickrey,
855 F.2d 723, 727-30 (11th Cir.1988), and what the speaker’s motivation in speaking
was. Morris v. Crow, 117 F.3d 449, 457 (11th Cir.1997).
Turning to the first issue, the court must consider whether the plaintiffs’ speech
addressed a matter of public concern, or whether it was wholly private in nature. See
e.g., Battle, 468 F.3d at 760 (quoting Garcetti, 547 U.S. at 418, 126 S.Ct. at 1958).
9

See also D’Angelo v. Sch. Bd. of Polk County, Fla., 497 F.3d 1203, 1208–10 (11th
Cir.2007). However, “[w]hen a citizen enters government service, the citizen by
necessity must accept certain limitations on his or her freedom.” Abdur-Rahman v.
Walker, 567 F.3d 1278, 1281-1282 (11th Cir.2009) (quoting Garcetti, 547 U.S. at
418, 126 S.Ct. at 1958). To state a claim that a government employer took
disciplinary action in retaliation for constitutionally protected speech, a public
employee must prove, as a threshold matter, that the employee “‘spoke as a citizen on
a matter of public concern.’” The defendants’ motion to dismiss this count of the
amended complaint turns on that threshold inquiry. Abdur-Rahman, 567 F.3d at
1281-1282.
The court is mindful that pending is a motion to dismiss, and thus the court
must take the factual allegations of the amended complaint as true. The plaintiffs
allege that they went to a supervisor that was not their own to complain about their
supervisor’s actions. Thereafter, an investigation was launched which culminated in
the plaintiffs having to give statements to higher level supervisors within the BWWB
and to the Birmingham Police Department. The defendants assert these statements
were in the nature of confessions to a crime, which the plaintiffs’ were compelled to
make based on their employment. See BWWB defendants’ memorandum, at 12. In
contrast, the plaintiffs allege they were terminated in retaliation for speaking to Carol
10

Duncan, another supervisor with the BWWB.
The Eleventh Circuit has addressed this issue quite specifically, in the context
of a police department, stating:
Clearly, it is a matter of public concern that a police chief and members
of his department would tamper with public records .... Such speech
relates to a “matter of political, social, or other concern to the
community.” See Maggio, 211 F.3d at 1352 (quoting Connick, 461 U.S.
at 146, 103 S.Ct. 1684) (describing speech that constitutes a matter of
public concern). An attempt to disclose alleged corruption within a
police department is speech related to a matter of public concern
because “a core concern of the first amendment is the protection of the
‘whistle-blower’ attempting to expose government corruption.” Bryson,
888 F.2d at 1566; see also Cooper v. Smith, 89 F.3d 761, 765 (11th
Cir.1996) (“There can be no doubt that corruption in a police department
is an issue of public concern.”); Fikes v. City of Daphne, 79 F.3d 1079,
1084 (11th Cir.1996) (same); Stanley, 219 F.3d 1280 (same).
Oladeinde v. City of Birmingham, 230 F.3d 1275, 1292 (11th Cir.2000).
Whether the court views the plaintiffs’ speech to Ms. Duncan as confessions
of theft or reports of extortion, in taking the claims of the amended complaint as true,
the speech in question here addressed a matter of public concern. They allege they
were attempting to reveal corruption in the BWWB. The fact that the speech in
question was made solely in the confines of the workplace is not a pivotal concern.
See e.g., Gonzalez v. Lee County Hous. Auth., 161 F.3d 1290, 1296 (11th Cir.1998)
(rejecting argument that a plaintiff's speech was not related to a matter of public
concern simply because the speech was made solely in the confines of the
11

workplace); Morgan v. Ford, 6 F.3d 750, 754 n. 5 (11th Cir.1993) (recognizing that,
although it is a relevant factor, “a court cannot determine that an utterance is not a
matter of public concern solely because the employee does not air the concerns to the
public”). Thus, the court finds that the plaintiffs’ speech in this case was related to
a matter of public concern.
Similarly, the court finds that the “employee’s interest in speaking outweighs
the government’s legitimate interest in efficient public service.” Referred to as the
Pickering balancing test, the court applies several factors in the analysis of the
government’s interest in the efficient provision of public services: “(1) whether the
speech at issue impedes the government's ability to perform its duties efficiently, (2)
the manner, time and place of the speech, and (3) the context within which the speech
was made.” Bryson v. City of Waycross, 888 F.2d 1562, 1567 (11th Cir.1989);
Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811
(1968). Rather than impeding the government’s ability to perform efficiently,
exposing corruption in government employees promotes efficient public service. The
manner, time and place of the speech and the context within which the speech was
made were the proper channel for the content of the speech.
The other two elements the court must consider are questions of fact. Whether
“the speech played a substantial part in the government’s challenged employment
12

decision;” and whether “the government would have made the same employment
decision in the absence of the protected conduct” have been sufficient pleaded in the
amended complaint. Taking the allegations of the amended complaint as true, the
plaintiffs clearly claim they were terminated in return for speaking up about Davis’
corrupt activities. Thus, at this stage of the pleadings, the motions to dismiss the
plaintiffs’ claims for retaliation for First Amendment free speech must be denied.
4. Plaintiffs’ claims pursuant to § 1983 for suppression of free speech:
Plaintiffs assert in Count III of the amended complaint that the defendants
suppressed their rights of free speech. “[A]s a general matter, the First Amendment
means that government has no power to restrict expression because of its message,
its ideas, its subject matter, or its content.” U.S. v. Alvarez, 132 S.Ct. 2537,
2543-2544 (2012) (quoting Ashcroft v. American Civil Liberties Union, 535 U.S. 564,
573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002). Here, the plaintiffs allege that their
own supervisors either would not listen to them, or told them to keep quiet.
Specifically, the plaintiffs allege that Davis told each of them to “keep your mouths
shut,” and other supervisors followed Davis’ lead. See e.g., amended complaint at
11 (where plaintiffs allege they reported defendant Davis’ actions to defendants
Lloyd and Nall, who both informed plaintiffs they would side with Davis); plaintiffs’
response, at 17 (stating supervisors made comments such as “he will believe his
13

supervisors over other employees,” “if you go around me your ass will be out the
door,” and “I will back my supervisors”).
In Garcetti, the Supreme Court noted that exposing “governmental ...
misconduct is a matter of considerable significant.” Garcetti v. Ceballos, 547 U.S.
410, 425, 126 S.Ct. 1951, 1962 (2006). The Court continued:
public employers should, “as a matter of good judgment,” be “receptive
to constructive criticism offered by their employees.” [Connick,] 461
U.S., at 149, 103 S.Ct. 1684. The dictates of sound judgment are
reinforced by the powerful network of legislative enactments—such as
whistle-blower protection laws and labor codes—available to those who
seek to expose wrongdoing. See, e.g., 5 U.S.C. § 2302(b)(8); Cal.
Govt.Code Ann. § 8547.8 (West 2005); Cal. Lab.Code Ann. § 1102.5
(West Supp.2006) .... These imperatives, as well as obligations arising
from any other applicable constitutional provisions and mandates of the
criminal and civil laws, protect employees and provide checks on
supervisors who would order unlawful or otherwise inappropriate
actions.
Garcetti, 547 U.S. at 425-426, 126 S.Ct. at 1962. See also Oladeinde v. City of
Birmingham, 230 F.3d 1275, 1292 (11th Cir.2000).8
8

In Oladeinde, the Eleventh Circuit explained:

Sergeant Oladeinde’s and Officer Fields’s purpose was to bring possible
wrongdoing to light. Simply because the plaintiffs sought permission from their
supervisor before reporting the information to the district attorney does not
remove their speech from the public's interest. Nor does the fact that the plaintiffs
did not report Officer Fields’s observations to the district attorney change the fact
that the speech suppressed by Captain Walker was related to a matter of public
concern. See Gonzalez v. Lee County Hous. Auth., 161 F.3d 1290, 1296 (11th
Cir.1998) (rejecting argument that a plaintiff's speech was not related to a matter
of public concern simply because the speech was made solely in the confines of
the workplace) (citing Connick, 461 U.S. at 149, 103 S.Ct. 1684); Morgan v.
Ford, 6 F.3d 750, 754 n. 5 (11th Cir.1993) (recognizing that, although it is a
relevant factor, “a court cannot determine that an utterance is not a matter of
14

With this instruction from the Supreme Court, the court is of the opinion that
the BWWB defendants’ motion to dismiss and defendant Davis’ motion to dismiss
Count III of the amended complaint are due to be denied at this time.
As against defendant BBWB, for a local government to have liability under 42
U.S.C. § 1983, the plaintiffs must allege that the deprivation of rights about which
they complain occurred because of a custom or policy. See e.g., Monell v. Dep't of
Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In support of
this claim, the plaintiffs assert that their amended complaint alleges that plaintiffs
attempted to speak to their own supervisors as instructed by the BWWB Policy and
Procedure Manual. Plaintiff’s response, at 16. They further assert that in attempting
to do so, they were told “you will shut your mouth” and “[i]f you do report me, you
will all lose your jobs.” Amended complaint, ¶¶ 21, 23. When they attempting to
speak to higher level supervisors, their allegations fell on deaf ears. Id., p. 11.
The plaintiffs also allege that despite a written policy against soliciting money
from other employees, defendant Davis did so openly and blatantly, in the presence

public concern solely because the employee does not air the concerns to the
public”); see also Dill v. City of Edmond, 155 F.3d 1193, 1202 (10th Cir.1998)
(“[T]he fact that Plaintiff chose a private forum within the police department and
the district attorney's office, rather than a public forum, does not remove the
speech from First Amendment protection.”). We are persuaded that the plaintiffs’
speech in this case was related to a matter of public concern.
Id., 230 F.3d at 1292.
15

of other supervisory employees. Amended complaint, p. 8-9. They also assert that
“[d]espite having actual knowledge of the malfeasance on Defendant Davis’ part,
Defendants Stanridge Knoll and Human Resources Manager Lloyd tolerated,
condoned and promoted the practice of Defendant Davis.” Amended complaint, p.
11. Taken together, the court finds these allegations allege a custom or policy which
enabled the deprivation of rights, sufficient to survive a motion to dismiss. Thus, the
plaintiffs state a viable claim for First Amendment suppression against defendant
BWWB.
5. Qualified Immunity
The BWWB defendants assert they are entitled to qualified immunity as to all
of the plaintiffs’ claims. BWWB defendants’ memorandum, at 23. If the conduct of
the defendants did not “violate a clearly established right,” then qualified immunity
attaches and the court must dismiss this action. See Mitchell v. Forsyth, 472 U.S.
511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Saucier v. Katz, 533 U.S. 194, 201
(2001). In determining whether the plaintiff has alleged a violation of a clearly
established right, the court must consider prevailing First Amendment law at the time
of the defendants’ alleged conduct, which states that a state employer cannot retaliate
against an employee for engaging in constitutionally protected speech. Williams v.
Alabama State University, 102 F.3d 1179, 1182-1183 (11th Cir.1997); citing Rankin
16

v. McPhereson, 483 U.S. 378, 383, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315 (1987).
The court is of the opinion that retaliation for constitutionally protected speech
violated a clearly established right. Given the clarity of this right, and given that the
court has found that the speech in question is within the realm of what is
constitutionally protected, the court finds qualified immunity does not attach in regard
to the plaintiffs’ First Amendment claims.
6. Tort of Outrage (Count IV)
Defendants assert that because the Alabama Supreme Court has never extended
the tort of outrage to employment actions, this claim is due to be dismissed. BWWB
defendants’ memorandum, at 27-28; defendant Davis’ memorandum, at 22. The
plaintiffs respond that outrage has been successfully maintained in cases with conduct
less egregious than that alleged here. Plaintiffs’ response, at 23. While that may be
the case, the Alabama Supreme Court has only allowed outrage claims in cases
involving (1) family burials; (2) insurance settlements; and (3) egregious sexual
harassment.

See e.g., Blow v. Virginia College, 2012 WL 6685683, *3

(N.D.Ala.2012) (citing Thomas v. BSE Indus. Contractors, Inc., 624 So.2d 1041
(Ala.1993). The court declines plaintiffs’ invitation to extend a claim for outrage, or
intentional infliction of emotional distress, to the facts alleged.

17

7. Conspiracy (Count V):
As stated previously, the plaintiffs filed a motion to dismiss this claim against
defendant BWWB (doc. 30) and the court shall grant the same. As to the remaining
defendants, the plaintiffs neither move to dismiss them, nor responds to the BWWB
defendants’ motion to dismiss this claim. Because employees of a corporation can
neither conspire among themselves, nor with their employer, McAndrew v. Lockheed
Martin Corp., 206 F.3d 1031, 1037 (11th Cir.2000), the court shall dismiss this claim
against all of the remaining defendants.
8. Tortious Interference Count VI):
As with the claim for conspiracy, the plaintiffs filed a motion to dismiss this
claim against the BWWB only. In their complaint, the plaintiffs allege they reported
defendant Davis’ unlawful actions and subsequently lost their jobs, which had a
detrimental impact on their professional careers. Amended complaint, at 21. Because
a defendant cannot interfere with its own contract or own business relations, the
plaintiffs’ allegations fail to state a claim upon which relief may be granted against
the BWWB.
As to the remaining defendants, the following elements must be shown “by
substantial evidence” to establish a prima facie case of tortious interference with
business relations: “(1) the existence of a protectible business relationship; (2) of
18

which the defendant knew; (3) to which the defendant was a stranger; (4) with which
the defendant intentionally interfered; and (5) damage.” White Sands Group, L.L.C.
v. PRS II, L.L.C., 32 So.3d 5, 14 (Ala.2009).
At this time, the court cannot discern whether the plaintiffs are alleging that the
defendant supervisors were acting on behalf of their employer or outside the scope
of their authority, and/or acting with actual malice. See e.g., Henderson v. Early, 555
So.2d 130, 131-132 (Ala.1989). Those are matters of fact, which the court does not
have before it at this time. Because this claim is before the court on a motion to
dismiss, the court shall deny the motion to dismiss as to the remaining BWWB
defendants and as to defendant Davis on this claim.
CONCLUSION
For the reasons set forth herein, the court shall grant the BWWB defendants’
and defendant Davis’ motions to dismiss in part and deny said motions in part, as
follows:
1. Plaintiffs’ claims against defendants Witt and Jenkins are dismissed without
prejudice.
2. Count I is dismissed without prejudice. The plaintiffs are allowed twenty
(20) days from today’s date to file an amended complaint setting forth a cause of
action under the proper section of the United States Code.
19

3. The BWWB defendants’ motion to dismiss plaintiffs’ claims for First
Amendment retaliation and First Amendment suppression (Counts II and III) is
denied. Defendant Davis’ motion to dismiss Counts II and III of the amended
complaint is similarly denied.
4. Plaintiffs’ claim for Outrage (Count IV) is dismissed with prejudice.
5. Plaintiffs’ motion to dismiss Count V is granted as to BWWB. The BWWB
defendants and defendant Davis’ motions to dismiss this conspiracy claim are
granted. This claim is dismissed with prejudice.
6. Plaintiffs’ motion to dismiss Count VI against the BWWB is granted. The
defendants’ motions to dismiss Count VI as to the remaining defendants (Jeff
Standridge, Reginald Nall, Mac Underwood, Paul Lloyd and Darryl Davis) are
denied.
The court shall enter a separate Order.
DONE this the 23rd day of January, 2013.

INGE PRYTZ JOHNSON
SENIOR U.S. DISTRICT JUDGE

20