Boyles v. Franklin County Commission et al

Filing 30

MEMORANDUM OPINION re 25 Motion for Summary Judgment. Signed by Judge Abdul K Kallon on 8/14/2015. (YMB)

FILED
2015 Aug-14 AM 11:13
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
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RHONDA BOYLES,
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Plaintiff,
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v.
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FRANKLIN COUNTY COMMISSION,|
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et al.,
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Defendants.
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Civil Action Number
3:14-cv-00331-AKK

MEMORDANDUM OPINION
Plaintiff Rhonda Boyles brings this action against the Franklin County
Commission and Judge Barry Moore, both in his capacity as probate judge of
Franklin County and as an individual (collectively “the defendants”), for violations
of the Fair Labor Standards Act (“the FLSA”) and wrongful termination. Before
the court is the defendants’ motion for summary judgment. The motion is fully
briefed, docs. 25, 27, 28, and ripe for review. For the reasons stated below, the
motion is due to be granted.
I. SUMMARY JUDGMENT STANDARD OF REVIEW
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the movant shows that there is no genuine dispute as to any
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material fact and the movant is entitled to judgment as a matter of law.” “Rule
56[ ] mandates the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986) (alteration in original). The moving party bears the initial burden
of proving the absence of a genuine issue of material fact. Id. at 323. The burden
then shifts to the non-moving party, who is required to go “beyond the pleadings”
to establish that there is a “genuine issue for trial.” Id. at 324 (internal citations and
quotation marks omitted). A dispute about material fact is genuine “if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court must construe the evidence and all reasonable inferences arising
from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 244 (all
justifiable inferences must be drawn in the non-moving party’s favor). Any factual
dispute will be resolved in the non-moving party’s favor when sufficient competent
evidence supports that party’s version of the disputed facts. See Pace v.
Capobianco, 238 F.3d 1275, 1276, 1278 (11th Cir. 2002) (a court is not required to
resolve disputes in the non-moving party’s favor when that party’s version of
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events is supported by insufficient evidence). However, “mere conclusions and
unsupported factual allegations are legally insufficient to defeat a summary
judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citing
Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)).
Moreover, “[a] mere ‘scintilla’ of evidence supporting the opposing party’s
position will not suffice; there must be enough of a showing that a jury could
reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.
1990) (citing Anderson, 477 U.S. at 252).
II. FACTUAL BACKGROUND
Boyles began work as a recording clerk in the Franklin County Probate
Office in 2001. Doc. 25-2 at 8. In April 2007, she received a promotion to chief
probate clerk under Judge Mike Green. Id. at 8–9. After Judge Green’s death,
Governor Bob Riley appointed Judge Moore to fill the vacancy, and Boyles
continued working as chief probate clerk. Id. at 8. Boyles’ powers and
responsibilities as chief probate clerk were identical to those of a probate judge. Id.
at 16–19. She had the authority to sign Judge Moore’s signature on official
documents, and oversaw his office while he was away, id. at 20, acting as his
“voice while he wasn’t there,” id. at 35. She also served as the department head for
the Franklin County Probate Office, assigning work shifts, verifying reported

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hours, addressing complaints, and providing training for the four employees she
supervised. Id. at 15, 20–23.
In January 2013, Judge Moore discharged Boyles, allegedly because she
failed to support his candidacy in the 2012 election against Connie Green. Id. at
31–32. Boyles did not campaign for Green, display any of Green’s campaign
materials, or do anything that would inform Judge Moore that she did not support
his candidacy. Id. at 32–33. Nonetheless, she contends that her political views
factored in the discharge because, six years earlier, she had informed Judge Moore,
a Republican, of her membership in the Democratic Party. Id. at 33.
III. ANALYSIS
Boyles contends the defendants failed to pay her overtime, as required under
the FLSA, and wrongfully discharged her, violating her First Amendment rights.
The court addresses each claim in turn.
A. Boyles Has Conceded That She is Not an Employee under the FLSA
The defendants contend that Boyles is excluded from the definition of an
employee under the FLSA because her she was part of Judge Moore’s personal
staff and because she was an immediate advisor to Judge Moore. Boyles failed to
respond to these arguments, and accordingly the court finds she has abandoned her
claim under the FLSA. McIntyre v. Eckerd Corp., 251 F. App’x 621, 626 (11th Cir.
2007) (holding that plaintiff abandoned issue at summary judgment by failing to
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address it in response brief). Alternatively, the FLSA claim fails because both the
personal staff and immediate advisors of elected officials are not considered
employees under the FLSA, and thus are not subject to its minimum wage and
overtime pay requirements. 29 U.S.C. § 203(e)(2)(C).
1. Boyles Qualified as Personal Staff and an Immediate Advisor
The Eleventh Circuit considers the following factors in determining whether an
employee is part of an official’s personal staff:
(1) [W]hether the elected official has plenary powers of appointment and
removal, (2) whether the person in the position at issue is personally
accountable to only that elected official, (3) whether the person in the
position at issue represents the elected official to the public, (4) whether the
elected official exercises a considerable amount of control over the position,
(5) the level of the position within the organization’s chain of command, and
(6) the actual intimacy of the working relationship between the elected
official and the person filling the position.
Laurie v. Ala. Court of Criminal Appeals, 88 F. Supp. 2d 1334, 1338 (M.D. Ala.
2000), aff’d 256 F.3d 1266 (11th Cir. 2001). By Boyles’ own account, Judge
Moore was her sole and direct supervisor with power to hire or discharge her, and
she represented him to the public. Doc. 25-2 at 15–16, 20. Consequently, it is
undisputed that Boyles was a part of Judge Moore’s personal staff. Likewise,
Boyles qualified as an immediate advisor to an elected official. This element
requires Judge Moore to show that Boyles “help[ed] [him] perform [his]
constitutional and legal duties as [an] elected official . . .” and that he “expect[ed]
and receive[d] advice” from Boyles “on the issues that go to the core of the judge’s
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duties as an elected official . . . .” Laurie, 88 F. Supp. 2d at 1349 (internal
quotation marks omitted). It is undisputed that Boyles provided advice to Judge
Moore in the performance of his constitutional and legal duties, and in fact had
both the power and obligation to perform the same duties herself. Doc. 25-2 at 19.
Consequently, as to Boyles’ FLSA claim, the defendants’ motion is due to be
granted.
2. Chief Probate Clerk is an Exempt Administrative Position
Boyles’ claim under the FLSA fails also because the position of chief
probate clerk is an administrative position exempted from the FLSA’s
requirements of overtime compensation. See Viola v. Comprehensive Health
Mgmt., Inc., 441 F. App’x 660, 662 (11th Cir. 2011).
Under DOL regulations, an employee qualifies for the administrative
exemption if (1) the employee is compensated on a salary or fee basis not
less than $455 per week; (2) the employee’s primary duty is the performance
of office or non-manual work directly related to the management of general
business of the employer of the employer’s customers; and (3) the
employee’s primary duty includes the exercise of discretion and independent
judgment with respect to matters of significance.
29 C.F.R. § 541.200 et seq. Boyles does not contest the second or third factors, and
in her deposition, she testified that she received a fixed salary, i.e. that she was
“paid a salary of $20,488” in 2004 and was subsequently given pay raises. Doc.
25-2 at 9. Despite her unequivocal testimony, and presumably in an attempt to
create a factual dispute, Boyles has submitted an affidavit with her response brief
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stating that she was not compensated on a salaried basis, and thus did not hold an
exempt administrative position. Doc. 27-1. Obviously, Boyles’ statement in the
affidavit that she “did not have a set salary,” doc. 27-1, directly conflicts with her
deposition testimony that she was “paid a salary,” doc. 25-2 at 9. In fact, in her
deposition, Boyles agrees that her “pay [was never] reduced based upon the
number of hours that [she] worked,” doc. 25-2 at 21, and that there “[w]as never a
week that [she] did not get paid for [forty] hours,”1 id. at 13.
In light of the conflict between Boyles’ deposition testimony and her
affidavit, the defendants have moved to strike Boyles’ affidavit. Doc. 29. Courts
“may disregard an affidavit submitted solely for the purpose of opposing a motion
for summary judgment when that affidavit is directly contradicted by deposition
testimony,” and the court will not consider such testimony unless a party can
adequately explain the deviation from her previous testimony. McCormick v. City
of Fort Lauderdale, 333 F.3d 1234, 1240 n. 7 (11th Cir. 2003). Boyles has not
even attempted to provide the court with such an explanation. Accordingly, the
court grants the defendants’ motion to strike Boyles’ affidavit, and finds that her
deposition testimony establishes that she was an exempt administrative employee
under the FLSA.

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Boyles also contradicts this testimony in her affidavit by stating that “if [she] did not work
[forty] hours a week, [her] pay would decrease . . . .” Doc. 27-1.
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In short, as Boyles was part of Judge Moore’s personal staff, an immediate
advisor to Judge Moore, and in an exempt administrative position, the FLSA’s
requirements do not apply to her, and her claim consequently fails.
B. Boyles’ Discharge did not Violate her First Amendment Rights
Boyles contends that Judge Moore violated her First Amendment rights by
discharging her because of her political beliefs. The defendants contend that there
is no state law cause of action for such a claim, that Boyles did not engage in any
protected expression, and that Judge Moore could discharge her based on her
political beliefs without violating her First Amendment rights because her position
is a legal “alter ego” of his own.
As a threshold matter, the court notes that employment in Alabama is
generally at-will, and that consequently “an employee may be discharged for any
reason, good or bad, or for no reason at all.” Ex parte Amoco Fabrics & Fiber Co.,
729 So. 2d 336, 339 (Ala. 1998) (citing Bell v. S. Cent. Bell, 564 So. 2d 46 (Ala.
1990)). Alabama recognizes a tort cause of action for wrongful termination of an
at-will employment contract in limited circumstances, typically, but not
exclusively, when the legislature creates a statutory exception. See Howard v. Wolf
Broad. Corp., 611 So. 2d 307, 312 (Ala. 1992) (refusing to create a judicial “public
policy” exception to the “at-will” doctrine, but recognizing statutory exceptions for
termination as a result of filing claims for worker’s compensation benefits and
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attending jury duty). Boyles has not cited any statute or authority that recognizes a
cause of action for her wrongful termination claim. Her reliance on Oden v.
Oktibbeha Cty., Miss., 246 F.3d 458 (5th Cir. 2001), and Thomas v. Cooper
Lighting, 506 F.3d 1361 (11th Cir. 2007), are unavailing, as these cases
respectively concern claims brought under § 1983 and Title VII, both of which
provide federal, not state, causes of action.
Moreover, even were the court to grant Boyles the benefit of the doubt and
assume she has pleaded a valid cause of action, her claim would still fail. The
defendants contend that Boyles did not engage in any protected expression by
declining to support Judge Moore because she did not campaign for his opponent
in the election. See Doc. 25-2 at 31–32. If Judge Moore had asked Boyles to
support his campaign, then the facts might support her claim. “A government
employee’s refusal to speak in the face of a request to speak is, under some
circumstances, protected conduct.” Endicott v. Deschutes Cnty., No. 6:14-CV1810-MC, 2015 WL 853091 at *3 (D. Or. 2015) (citing Wooley v. Maynard, 430
U.S. 705, 714 (1977); Sykes v. McDowell, 786 F.2d 1098, 1104 (11th Cir. 1986)).
However, Boyles does not allege that Judge Moore required her to support his
campaign, nor does she allege that she asserted her right either not to speak or to
speak in favor of Judge Moore’s opponent. Perhaps to sidestep this, Boyles asserts
that Judge Moore terminated her because of her political beliefs, in violation of the
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Franklin County Policies and Procedures Manual. However, as the court has
already decided, doc. 19 at 5, the policies of the manual do not apply to Boyles’
position of chief probate clerk, and consequently her termination could not have
violated them. Moreover, Boyles told Judge Moore of her membership in the
Democratic party six years prior to her discharge, doc. 25-2 at 33, which is too far
temporally removed to support a claim that her political beliefs were the basis of
the discharge. Accordingly, the court finds that Boyles did not engage in any
expression protected by the First Amendment.
Alternatively, Boyles’ wrongful termination claim is due to be dismissed
because the position of probate court clerk is the legal “alter ego” of a probate
judge. “[A]n elected official may dismiss an immediate subordinate for opposing
[him] in an election without violating the First Amendment if the subordinate,
under state or local law, has the same duties and powers as the elected official.”
Leslie v. Hancock Cnty. Bd. of Educ., 720 F.3d 1338, 1350 (11th Cir. 2013)
(quoting Underwood v. Harkins, 698 F.3d 1335, 1343 (11th Cir. 2012)). Boyles
does not dispute that her duties and powers as a probate court clerk were identical
to those of Judge Moore, nor does her response brief address the defendants’ “alter
ego” argument at all. Accordingly, the court finds that, even if it assumes that
Boyles engaged in protected expression, Judge Moore did not violate her First

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Amendment rights by terminating her and that Boyles has abandoned her wrongful
termination claim. McIntyre, 251 F. App’x at 626.
IV. CONCLUSION
Based on the foregoing, the motion for summary judgment is due to be
granted. The court will enter a contemporaneous order consistent with this opinion.

DONE the 14th day of August, 2015.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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