Smith et al v. Birmingham, City of et al
MEMORANDUM OPINION. Signed by Judge Inge P Johnson on 3/6/13. (ASL)
2013 Mar-06 PM 03:00
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JEFFREY L. SMITH, et al.,
CASE NO. CV 12-J-3493-S
BIRMINGHAM WATER WORKS,
Pending before the court is the second motion to dismiss of defendant Darryl
Davis (doc. 36), a brief in support of said motion (doc. 37), a motion to dismiss Count
I of the third amended complaint by the Water Works Board of the City of
Birmingham (“BWWB”), and BWWB individual employees, sued in both their
official capacity and individually1 (doc. 40) and a brief in support of that motion
(docs. 40-1). Plaintiffs2 have filed a response to the BWWB defendants (doc. 47)
and a response to defendant Davis’ motion to dismiss (doc. 52).
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.”
Plaintiff Chris Dodson has obtain separate counsel and therefore the plaintiffs’ responses
do not include him. Plaintiff Dodson has requested additional time to respond to said motion,
which the court granted (doc. 50).
The court extensively set forth the relevant facts of this case in its opinion of
January 23, 2013 (doc. 32) and adopts the same here, as if set out in full. Based on
those facts, in their third amended complaint the plaintiffs state claims for due process
violations pursuant to 42 U.S.C. § 1983 against the BWWB (Count I); retaliation for
protected speech pursuant to 42 U.S.C. §1983 against all defendants (Count II);
prevention of free speech against all defendants (Count III); and tortious interference3
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
“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,
Although nor discernable from the Third Amended Complaint, the plaintiffs previously
dismissed their tortious interference claim against defendant BWWB. As such, the court finds
that the plaintiffs only bring this claim against the individual defendants, in their individual
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.
1. Plaintiffs’ Due Process Clause violation allegations pursuant to 42 U.S.C.
§ 1983 against defendant BWWB and the BWWB defendants in their individual and
The BWWB defendants assert that the plaintiffs had no property rights in their
employment with the BWWB as asserted in Count I of the third amended complaint.
BWWB defendants’ memorandum, at 5. 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 5. However,
This claim is not brought against defendant Davis.
the plaintiffs argue that because they were terminated for “cause,” they ceased being
“at will” employees.
According to the plaintiffs, the understanding of the parties at the time of the
employer/employee relationship is unimportant. Rather, pursuant to the plaintiffs’
argument, the court must look to the manner of termination of the at-will employee
to determine whether due process was violated. In other words, the plaintiffs argue
that because plaintiffs were given a reason for their terminations, a property interest
was created in their jobs at that moment. See plaintiffs’ response (doc. 47), at 7
(“...there is no dispute that Plaintiffs could initially be considered employees “at will”
as defined by Alabama case law prior to the meeting which resulted in their
termination. However, Defendant Birmingham Water Works created a “for cause”
relationship when Birmingham Water Works made the decision to (1) conduct a
hearing in that Birmingham Water Works notified the Plaintiffs that they needed to
talk to them individually, and (2) brought them into a closed room and in turn
interrogated them regarding alleged criminal misconduct.”)(underlining in original).
Thus, according to plaintiffs’ argument, any time a public employer learns of theft by
an employee and decides to investigate it, a property interest in the employee’s job
is created by that very investigation. As noted by defendants, the plaintiffs cite no
legal authority for this novel view of Alabama employment law. Defendants’
memorandum, at 7-8.
The plaintiffs assert that Long v. Water Works and Sewer Bd. of City of
Gadsden, 487 So.2d 931 (Ala.Civ.App.1986), supports their position. In that case,
a unionized employee was terminated for falsifying meter readings. Id., at 933, 934.
As noted by the Alabama Court of Civil Appeals, “the union represented Long at
every stage of the proceedings and the Board had no contract with the union.” Id.,
at 934. The court then states that
Long contends that pursuant to an employee handbook (not in the
record) he enjoyed permanent status as a municipal employee and had
a property right in continued employment. Assuming for the sake of
argument that Long did have a property interest in continued
employment, we conclude that he was afforded due process.
Id. (emphasis added). In no manner does Long suggest that a court look at the time
of termination to determine whether an employee had a property interest in his or her
job. It most certainly does not conclude that “Given the actions taken by the Gadsden
Water Works Board in allowing all of the necessary procedures afforded under the
Due Process Clause, a ‘Due Process’ relationship was established.”5 Plaintiffs’
memorandum at 5-6.
The case of Douglas v. Evans, 916 F.Supp. 1539 (M.D.Ala.1996), does nothing
Of course, even if Long did stand for this proposition, the same would be of no
assistance to the plaintiffs, as they do not allege that the BWWB allowed “all of the necessary
procedures afforded under the Due Process Clause...”
to help the plaintiffs here. In that case, the court noted that
“[a] public employee enjoys a property interest in his [or her]
employment only if he [or she] has an expectation of continued
employment created by legislation, contract, or policy.” Lassiter v.
Covington, 861 F.2d 680, 682 (11th Cir.1988) (citing Board of Regents
v. Roth, 408 U.S. 564, 577–78, 92 S.Ct. 2701, 2709–10, 33 L.Ed.2d 548
(1972)). There must be a state statute or ordinance that creates a public
employment contract, or there must be some clear practice or mutual
understanding that an employee can be terminated or transferred only for
“cause.” Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15
(1974). If the employee holds his position only at the “will” of the
employer, there is no property interest in continued employment. Bishop
v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976).
Douglas, 916 F.Supp. at 1547. The court concluded that the plaintiff in that case,
although a merit system employee, had no proper interest in her job. Id., at 1548.
Rather, “the law is clear that a prospective promotion or recommendation for a
promotion does not give rise to a property or liberty interest, even for a tenured
employee.” Id., citing Oladeinde v. City of Birmingham, 963 F.2d 1481, 1486 (11th
Cir.1992), cert. denied, 507 U.S. 987, 113 S.Ct. 1586, 123 L.Ed.2d 153 (1993); Wu
v. Thomas, 847 F.2d 1480, 1485 (11th Cir.1988), cert. denied, 490 U.S. 1006, 109
S.Ct. 1641, 104 L.Ed.2d 156 (1989).
Also of no assistance to plaintiffs is Mills v. City of Phenix City, Ala., 2012 WL
2887933 (M.D.Ala.2012). There, the Middle District of Alabama held that the
plaintiff, a public employee, had no property interest in her job, and was terminable
at-will. Id., * 3. The court recognized that
an employee need not have an explicit contract to move into the realm
of for-cause employment. Alabama cases establish that, in certain
circumstances, an employee handbook may vest property rights in
employment. 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”).
But these cases are inapposite when the handbook expressly avows that
it does not create a property interest in employment. 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”). Whether employee
handbooks or other employee rules 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).
Id., * 4. At no point did that court suggest that one must look to the moment of
termination to decide if property rights attached because a reason for termination was
Because the court finds no legal support and no merit to the plaintiffs’ claim
that they had a property interest in their jobs, instantly created at the moment of their
terminations, there can be no due process violation in terminating the plaintiffs
without notice and hearing. As such, the court is of the opinion that Count I of the
plaintiffs’ third amended complaint is due to be dismissed and shall grant the BWWB
defendants’ motion (doc. 40) for the same by separate Order. Because the court finds
this ruling will be dispositive of Count I as to all plaintiffs except Chris Dodson, the
court does not reach defendants’ other arguments as to why this Count is due to be
2. Defendant Davis’ Second Motion to Dismiss (doc. 37):
a. Count I: Defendant Davis recognizes that Count I was not asserted
b. Count II: Defendant Davis argues that the plaintiffs have not alleged
that he was a decision maker with respect to their retaliatory discharge claim. Davis
brief (doc. 37) at 7. The plaintiffs respond that defendant Davis was the “mastermind,
driving force and proximate cause of Plaintiffs’ termination.” Plaintiffs’ response
(doc. 52), at 9.
The plaintiffs repeatedly allege that defendant Davis threatened the plaintiffs
with termination if they revealed his padding of paychecks. See e.g., Third Amended
Complaint, ¶¶ 23, 29-33. In its January 2013 memorandum opinion, the court
discussed the elements of a First Amendment retaliatory discharge claim, but the
same bear repeating here. The four part test was 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 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). Because the court has already considered the alleged facts of
this case under this test, the same analysis will not be repeated here. Rather, the court
adopts its rational in the January 2013 memorandum opinion as if set out in full here
and reaches the same conclusion. See Memorandum Opinion of January 23, 2013
(doc. 32), at 9-12.
According to defendant Davis, because the plaintiffs “allege only that
defendant Davis threatened their employment, not that he played any part in the actual
discharge determination” (defendant Davis’ brief at 8), he asserts he can have no
liability on this claim. However, as the court previous stated, the final two elements
of the Bryson test, whether “the speech played a substantial part in the government’s
challenged employment decision;” and whether “the government would have made
the same employment decision in the absence of the protected conduct” are questions
of fact. As this issue is before the court on a motion to dismiss, the court takes the
allegations of the amended complaint as true. In that light, the plaintiffs clearly assert
they were terminated in return for speaking up about Davis’ corrupt activities. The
court has no evidence before it as to whether defendant Davis played any role in the
termination decisions or not. Thus at this stage of the pleadings, defendant Davis’
motion to dismiss the plaintiffs’ claims for retaliation for First Amendment free
speech must be denied.
c. Count III:
Plaintiffs assert in Count III of the Third Amended Complaint that the
defendants suppressed their right of free speech. Defendant Davis claims that
plaintiffs “Have Failed to Demonstrate that Defendant Davis Took an ‘Adverse
Employment Action’ Against Them....” Davis brief (doc. 37) at 9. As this case is
before the court on a motion to dismiss, the court observes that the plaintiffs have had
no obligation to demonstrate anything as of yet. Rather, the court considers the
allegations of the complaint as true. Like Davis’ previous grounds to dismiss, infra,
the court addressed this very claim in this context in January 2013. The court found
.... 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 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).
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.
January 23, 2012, Memorandum Opinion (doc. 32) at 13-15.
Defendant Davis’ grounds for seeking dismissal of this claim are heavily based
in factual development, of which the court has none. The court shall deny defendant
Davis’ motion on this ground without prejudice to his right to raise the same in an
appropriately timed motion for summary judgment.
d. Count IV:
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. Third Amended Complaint, ¶ 63, p. 19. As set forth by the
court in its January 2013 opinion, 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
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 defendant Davis’ motion to dismiss on this claim.
Having considered the foregoing, the court shall enter the following rulings:
1. The BWWB defendants’ motion to dismiss Count I of the Third Amended
Complaint be and hereby is GRANTED. All plaintiffs’ claims for violation of their
Due Process rights against the BWWB defendants are DISMISSED WITH
PREJUDICE, except for plaintiff Dodson’s, which remains pending.
2. Defendant Davis’ second motion to dismiss (doc. 36) is DENIED.
The court shall enter a separate Order in accordance with these rulings.
DONE this the 6th day of March, 2013.
INGE PRYTZ JOHNSON
SENIOR U.S. DISTRICT JUDGE
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