Allred v. Carbon Hill, City of et al

Filing 45

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 10/24/2014. (AVC)

FILED
2014 Oct-24 PM 03:47
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
HEATH ALLRED,
Plaintiff;
vs.
THE CITY OF CARBON HILL,
ALABAMA, a municipal
corporation, and JAMES
RICHARDSON,
Defendants.

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6:13-cv-00930-LSC

Memorandum of Opinion

Plaintiff Heath Allred (“Allred”) brought this action under 42 U.S.C. § 1983
and Ala. Code § 11-43-230 et seq., seeking damages based on his non-reappointment
as the Carbon Hill police chief. Before the Court is Defendants City of Carbon Hill
(“Carbon Hill”) and James Richardson’s (“Richardson”) motion for summary
judgment. (Doc. 38.) The issues have been fully briefed and are ripe for review. For
the reasons stated below, summary judgment is due to be granted with respect to
Allred’s procedural due process and wrongful termination claims, and denied with
respect to his freedom of association claims.
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I.

Background
Allred was appointed as the Carbon Hill police chief on August 19, 2010.

Carbon Hill did not specify the length of Allred’s employment when it appointed him.
After completing his probationary period, Allred was told that Carbon Hill’s
Personnel Rules and Regulations (“Personnel Rules”) governed his employment. The
Personnel Rules require notice and a hearing for suspensions over three days,
demotions, and dismissals.
In 2012, Allred’s professional relationship with Richardson began to weaken.
Allred’s wife, Jacque Roberson Allred, announced that she was challenging Defendant
Richardson in Carbon Hill’s mayoral race. Allred claims that he received a phone call
from Ken Guin (“Guin”), Richardson’s attorney, in February of 2012. Guin allegedly
told Allred that his job would suffer should Allred’s wife continue her bid for mayor.
Allred supported his wife in the mayoral race, participating in occasional campaign
meetings and helping build campaign signs. However, Allred claims that he never
supported his wife’s candidacy while in uniform or while performing his official duties
as police chief.
Richardson ultimately won the mayoral race, narrowly beating Allred’s wife in
a run-off election on October 6, 2012. Richardson replaced outgoing mayor Chris

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Hart in early November 2012. On November 5, 2012 Richardson and Allred met
privately before a Carbon Hall City Council (“Council”) meeting. Richardson told
Allred that he was ending Allred’s employment as Carbon Hill police chief.
Richardson allegedly cited Allred’s wife as the reason he was not reappointing Allred,
as Richardson told Allred that “this campaign has been dirty,” when Allred asked why
he was being terminated.1 (See Doc. 39-2, at 22.)
Following this discussion, the Council appointed a new police chief at
Richardson’s suggestion. Richardson presided over the session and participated in the
voting. The Council decided to retain the individuals serving as other city officials,
making Allred the only city official not reappointed. Allred’s attorney asked when
Allred should report for duty as a regular employee of the Carbon Hill Police
Department. The Council went into executive session to discuss the issue, and the city
attorney told Allred after the session that Allred was no longer employed by Carbon
Hill. Allred claims that Richardson initially suggested that Allred “didn’t have
anything to worry about” with respect to keeping his job, but that Richardson changed
his mind after the election. (See Doc. 39-2, at 23.) However, Allred acknowledges that

1

There is a debate over whether Allred was terminated or whether his term of office simply
expired. This Court will occasionally use the word “termination” to refer to Allred’s nonreappointment; this does not mean that the Court endorses Allred’s opinion that his nonreappointment constitutes a termination.
Page 3 of 32

no one ever told him that his appointment as police chief was permanent, nor that
Allred would not have to be reappointed following the election of a new mayor and
city council.
Allred filed this action in state court on March 28, 2013, and it was removed to
this Court on May 16, 2013. Carbon Hill and Richardson previously filed a motion to
dismiss for failure to state a claim, and Richardson further argued that he was entitled
to qualified immunity with respect to the alleged constitutional violations. This Court
found that Allred pleaded sufficient facts to withstand a motion to dismiss, and also
refused to grant qualified immunity to Richardson since there was a possibility that
Allred’s complaint presented “clearly established” violations of law. Carbon Hill and
Richardson now bring a motion for summary judgment and Richardson reasserts the
defense of qualified immunity.
II.

Standard of Review
Summary judgment is appropriate “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). A fact is “material” if it “might affect the
outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986); see also Avenue CLO Fund, Ltd. v. Bank of Am., NA, 723 F.3d 1287,

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1294 (11th Cir. 2013). There is a “genuine dispute” as to a material fact “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248. The trial judge should not weigh the evidence but
must simply determine whether there are any genuine issues that should be resolved
at trial. Id. at 249.
In considering a motion for summary judgment, trial courts must give deference
to the non-moving party by “considering all of the evidence and the inferences it may
yield in the light most favorable to the nonmoving party.” McGee v. Sentinel Offender
Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013) (citing Ellis v. England, 432 F.3d
1321, 1325 (11th Cir. 2005)). However, “unsubstantiated assertions alone are not
enough to withstand a motion for summary judgment.” Rollins v. TechSouth, Inc., 833
F.2d 1525, 1529 (11th Cir. 1987). In making a motion for summary judgment, “the
moving party has the burden of either negating an essential element of the nonmoving
party’s case or showing that there is no evidence to prove a fact necessary to the
nonmoving party’s case.” Id. Although the trial courts must use caution when
granting motions for summary judgment, “[s]ummary judgment procedure is properly
regarded not as a disfavored procedural shortcut, but rather as an integral part of the
Federal Rules as a whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327(1986).

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III. Discussion
Allred brings claims against Carbon Hill and Richardson under 42 U.S.C.
§ 1983 for violations of his constitutional rights of procedural due process and
freedom of association. He also brings a state law wrongful termination claim under
Ala. Code § 11-43-230. This Court will examine each in turn.
A.

Procedural Due Process Violation

One of Allred’s § 1983 claims alleges a pre-deprivation violation of procedural
due process. In other words, Allred argues that he was fired as police chief without
first being provided a “constitutionally adequate” opportunity to rebut the rationale
for the termination. A procedural due process claim requires that a plaintiff show
“‘(1) a deprivation of a constitutionally-protected liberty or property interest; (2) state
action; and (3) constitutionally-inadequate process.’”Catron v. City of St. Petersburg,
658 F.3d 1260, 1266 (11th Cir. 2011) (quoting Grayden v. Rhodes, 345 F.3d 1225, 1232
(11th Cir. 2003)). Due process typically requires that any deprivation of “life, liberty,
or property be preceded by notice and the opportunity for a hearing.” Cleveland Bd.
of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (internal quotation marks omitted);
see also id. (“We have described the ‘root requirement’ of the Due Process Clause as
being ‘that an individual be given an opportunity for a hearing before he is deprived of

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any significant property interest.’” (quoting Boddie v. Connecticut, 401 U.S. 371, 379
(1971))). Carbon Hill and Richardson concede that Allred was not provided any pretermination opportunity to contest the alleged deprivation. Thus, Allred’s procedural
due process claim turns on whether he had a constitutionally-protected interest in
continued employment as the Carbon Hill police chief.
Restrictions on a public employer’s ability to terminate an employee can create
a constitutionally-protected interest in continued employment. See Ross v. Clayton
Cnty., Ga., 173 F.3d 1305, 1307 (11th Cir. 1999) (stating that “[g]enerally, a public
employee has a property interest in continued employment if state law or local
ordinance in any way limits the power of the appointing body to dismiss an employee”
(internal quotation marks omitted)); see also Warren v. Crawford 927 F.2d 559, 562
(11th Cir. 1991) (stating that “[s]tate law determines whether a public employee has
a property interest in his or her job”)). Allred points to Ala. Code § 11-43-230 as the
state law creating a property interest in continued employment. Section 11-43-230
states that “[e]very municipality shall provide a predisciplinary hearing prior to any
suspension or termination of its law enforcement officers.” Ala. Code § 11-43-230(a)
(2014). Section 11-43-231 defines “law enforcement officer” to include police chiefs,
but excludes from the definition “any person whose term of office has expired.” See

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Ala. Code § 11-43-231 (2014).
Carbon Hill and Richardson argue that Allred’s term as police chief did expire
with the election of the mayoral board, and that he therefore has no constitutionallyprotected interest in continued employment under Ala. Code § 11-43-230. Defendants
direct the Court to Ala. Code. § 11-43-4, which states that:
In cities having a population of less than 6,000 and in towns, the council
shall elect a clerk and fix the salary and term of office, and may determine
by ordinance the other officers of the city or town, their salary, the
manner of their election and the terms of office . . . . The clerk and such
other officers elected by the council shall serve until their successor or
successors are elected and qualified.
Ala. Code § 11-43-4 (2014) (emphasis added). In addition, Ala. Code § 11-43-46 states
that the Council should fix municipal officers’ terms, including those of police chiefs,
so that they do “not [] exceed that of the mayor.” See Ala. Code § 11-43-46 (2014).2
Case law interpreting Ala. Code § 11-43-4 is sparse. However, under Alabama
law, courts are to interpret statutory terms in a manner that effectuates the intent of
the legislature, as expressed in the statute itself. See Blue Cross & Blue Shield of Ala.,
Inc. v. Nielsen, 714 So.2d 293, 296 (Ala. 1998). The plain language of the statute at
issue is the primary tool for discerning legislative intent. See Clark v. Riley, 595 F.3d

2

Citing Ala. Code § 11-43-46, Allred argues that he has at least a four-year expectation in
continued employment, as the Council never affixed a definite term to his office when appointing
him as police chief.
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1258, 1266 (11th Cir. 2010) (stating that “determining legislative intent begins with
the plain language of the statute” (citing IMED Corp. v. Sys. Eng’g Assocs. Corp., 602
So. 2d 344, 346 (Ala. 1992))). A court should deviate from the ordinary meaning only
if a literal construction of the statute would result in an unreasonable or absurd result.
See id. (citing Ex parte Meeks, 682 So. 2d 423, 428 (Ala. 1996)).
Following these principles, this Court finds that Allred’s term of office expired
when he was not reappointed by the Council following the mayoral election, thus
placing him outside the definition of “law enforcement officer”under Ala. Code
§ 11-43-231. Ala. Code. § 11-43-4 states that municipal officers are to serve until “their
successor or successors are elected and qualified.” Furthermore, Ala. Code § 11-43-46
states that the Council should limit municipal officers’ terms, including those of
police chiefs, so that they do “not [] exceed that of the mayor.” Reading these two
provisions in conjunction, it is clear that, once a new mayor is elected, all municipal
officers must be reappointed to continue employment in their position; otherwise,
their term of office simply expires.
The few courts to interpret the language of Ala. Code. § 11-43-4 have reached
the same conclusion. See, e.g., In re Potter, 354 B.R. 301, 307 (Bankr. N.D. Ala. 2006)
(stating that, under Ala. Code § 11-43-4, “[t]he council’s election of a new police chief

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effectively ended the term of the plaintiff’s service as police chief . . . . [T]he action
appears to conform to Ala. Code § 11-43-4”); see also id. at 321 (stating that the
council’s decision to appoint another person as police chief was “a discretionary
action within the scope of their authority,” and that such authority “by virtue of Ala.
Code § 11-43-4, includes the power to make administrative decisions about personnel
such as appointing [plaintiff’s] successor”).3
In fact, Allred cites only one case in support of his argument that he has an
interest in employment extending past the election of a new mayor, and that court
reached a similar conclusion when interpreting Ala Code § 11-43-4 in conjunction
with § 11-43-46. See Works v. Town of Fyffe, cv-2006-327 (Dekalb Cnty. Cir. Ct., Mar.
25, 2010) (“Based solely on the foregoing statutes, without question, Plaintiff’s term
was tied to that of the Mayor whose term expired in October, 2004 and Plaintiff’s
employment expired with that of the Mayor with or without actions of the new

3

The Potter court did find that, while Ala. Code § 11-43-4 defines when a municipal officer’s
term will expire, it does mandate a new appointment at the conclusion of that term, and therefore it
was still possible for the plaintiff to bring a claim for discriminatory termination based on his status
as a bankruptcy debtor. This Court agrees with such reasoning to the extent that a nonreappointment may still be considered an “adverse employment action.” See infra Part III.B.1.
However, since a procedural due process claim requires a legitimate, mutually understood
expectation in continued employment, a possibility of reappointment will not act to create a
constitutionally-recognized property interest. See Bd. of Regents of State Coll. v. Roth,408 U.S. 564,
577 (1972) (stating that a vaguely defined, unilateral expectation is not enough to create an
enforceable interest in continued employment). To that end, Allred’s claim that Richardson told him
“he had nothing to worry about” concerning his job is too vague to create a property interest as well.
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council.”). Furthermore, the Alabama Attorney General has interpreted near-identical
language in a neighboring section of the Alabama Code, § 11-43-3, to mean that a
police chief’s term expires upon election. See Ala. Op. Atty. Gen. No. 2013-020, 2013
WL 226995, at *3 ( Jan. 9, 2013) (stating that “[t]he term of office of the . . . police
chief . . . ends generally by operation of general law when a newly elected council takes
office” (citing Ala. Code § 11-43-46)).
Furthermore, the Court is not persuaded by Allred’s argument that Carbon
Hill’s failure to affix a defined term to his office when appointing him as police chief
should grant Allred an expectation in continued employment. The fact that the
Council failed to initially define the length of Allred’s appointment does not grant him
an interest in employment that extends past election of a new mayor. Ala. Code
§ 11-43-4 states that the city council “may determine” by ordinance the terms of
service of municipal officers. While Ala. Code § 11-43-46 recasts this as a mandatory
act, the statute applies only to appointed officers whose terms of service “are not
proscribed by law.”See Ala. Code § 11-43-46 (2014). Section § 11-43-4 does proscribe
a police chief’s term of office, stating that an individual holds the office only until “the
election and appointment of his successor.” Such language may be fairly interpreted
to mean that an individual holds the office of police chief only until a new mayor is

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elected and chooses to appoint someone else to the position. Furthermore, Ala. Code
§ 11-43-46 explicitly limits all municipal officers’ terms of service to a length “not to
exceed the term of the mayor,” and the previous mayor’s term expired when
Richardson was elected.
To conclude, Ala. Code § 11-43-230 was not intended to grant municipal
officers a property interest in reappointment. Rather, as the language of the statute
makes clear, Ala. Code § 11-43-230 seeks to provide due process protections to those
officers fired during their appointed tenure. The statute mandates “predisciplinary
hearings prior to the suspension and termination of [] law enforcement officers.” The
statute concerns itself with officers fired as a result of misconduct allegations
warranting a disciplinary hearing; nowhere does the statute’s language contemplate
officers who lost their position due to simple non-reappointment.4 In fact, Ala. Code
§ 11-43-231 expressly denies the protections of Ala. Code § 11-43-230 to those officers
that have lost their position due to expiration of their term of office.
Because Allred’s term of office expired when he was not reappointed, he was

4

This Court reaches a similar conclusion when looking to the language of the Carbon Hill
Personnel Rules. While the Personnel Rules promise a hearing before enacting dismissals, the
remainder of the Personnel Rules makes clear that the guarantee of a hearing is limited to
terminations occurring during one’s tenure and on the basis of misconduct allegations. At no point
do the Personnel Rules foster an expectation in reappointment following the conclusion of a term
of office.
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not a “law enforcement officer” under Ala. Code §§ 11-43-230 & 31, and therefore
may not use those state laws to establish a constitutionally-protected expectation in
continued employment.5 Since the Court finds that Ala. Code § 11-43-230 does not
afford Allred a continued interest in employment, summary judgment is also due to
be granted with respect to Allred’s wrongful termination claim.
B.

Freedom of Association Claims

Allred also brings freedom of association claims under 42 U.S.C. § 1983.
Specifically, Allred claims that the decision not to reappoint him as police chief was
based on Allred’s political and personal association with his wife, who unsuccessfully
ran against Richardson for mayor. A right of free association is implicit in the First
Amendment. Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984). There are two types
of protected association—association involving “intimate human relationships” and
association to engage “in those activities protected by the First Amendment.” Id. at
617–18. Intimate association concerns those relationships inherent to a family
structure. See McCabe v. Sharrett, 12 F.3d 1558, 1563 (11th Cir. 1994) (stating that
“[a]t a minimum, the right of intimate association encompasses the personal
5

Allred also argues that, even if he did not have a protected interest in reappointment as
police chief, he did have an interest in continued employment in general. Allred was hired into the
Carbon Hill Police Department as police chief and was never promised employment in another
capacity. Thus, there is no supporting authority for the argument that Allred somehow acquired an
interest in a separate position during his time as police chief.
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relationships that attend the creation and sustenance of a family,” including
marriage). Expressive association, on the other hand, relates to protected rights such
as “speech, assembly, petition for redress of grievances, and the exercise of religion.”
Id.
Allred brings § 1983 claims based on his right to both intimate and expressive
association. Carbon Hill and Richardson argue that Allred’s non-reappointment is not
an “adverse employment action,” which is required to sustain a First Amendment
claim for retaliation by a public employer. In addition, Richardson seeks both qualified
immunity and legislative immunity, while Carbon Hill argues there is not sufficient
basis to hold the city municipally liable. The Court will address these issues in turn.
1.

Non-Reappointment as an “Adverse Employment Action”

To succeed his First Amendment-based § 1983 claim, Allred must have
suffered an “adverse employment action” as a result of exercising his freedom of
association rights. See id. at 1563, 1564 (“For a public employee to establish that an
employment action has infringed a constitutional right the employee also must
demonstrate that he or she has suffered some sort of adverse employment action for
exercising the right.”).
Carbon Hill and Richardson argue that, since Allred had no continued property

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interest in employment, his non-reappointment cannot be considered an adverse
employment action. However, an employer’s refusal to reappoint an individual to a
position, while insufficient to establish a protected property interest, can establish an
adverse employment action. See id. (stating that an “adverse employment action” can
include “not only discharges, but also demotions, refusals to hire, refusals to promote,
and reprimands”); see also Perry v. Sinderman, 408 U.S. 593, 597 (1972) (finding that
a fired public employee still had a viable First Amendment claim despite his lack of
tenure, and stating that “[f ]or least a quarter of a century, this Court has made clear
that even though a person has no ‘right’ to a valuable governmental benefit and even
though the government may deny him the benefit for any number of reasons . . . [i]t
may not deny [the benefit] on a basis that infringes on his constitutionally protected
interests—especially his interest in free speech” (emphasis added)); Latessa v. N.J.
Racing Comm’n, 113 F.3d 1313, 1319 (3d Cir. 1997) (stating that “[u]nlike Fourteenth
Amendment due process rights, appellant’s First Amendment right to be free from
retaliation for speech is not defeated by the lack of a property or liberty interest”
(citing Roth, 408 U.S. at 599)).6

6

In the face of this long-standing precedent, Carbon Hill and Richardson offer a single,
unpublished case standing for the proposition that the lack of a protected interest in continued
employment precludes Allred’s non-reappointment from being considered an “adverse employment
action.”
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Allred’s non-reappointment effectively acted as a firing, since it concluded his
employment with the Carbon Hill Police Department. Having found that nonreappointment is an adverse employment action, the Court now turns to the merits
of Allred’s freedom of association claims under 42 U.S.C. § 1983.
2.

Freedom of Association Claim Against Richardson in His
Individual Capacity

Allred claims that Richardson violated his First Amendment-based freedom of
association rights by terminating Allred due to his association with his wife’s political
campaign. The Eleventh Circuit has applied two different standards when addressing
whether a government employee’s freedom of association rights were violated. See
McCabe, 12 F.3d at 1554–55 (discussing the Pickering and Elrod-Branti analyses for
determining whether an adverse employment action constituted a First Amendment
violation). Furthermore, Richardson must be considered an “official decisionmaker”
to be held liable in an individual capacity under 42 U.S.C. § 1983. See Quinn v. Monroe
Cnty., 330 F.3d 1320, 1326–27 (11th Cir. 2003).
a.

Richardson as an “Official Decisionmaker”

An individual must be considered an “official decisionmaker” to be held liable
in an individual capacity under 42 U.S.C. § 1983. See id. Official decisionmakers “may
often be identified by a rule . . . or, in the case of public entity employers, by examining
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the statutory authority of the official alleged to have made the decision.” See id. at
1328 (citing Hitt v. Connell, 301 F.3d 240, 247–49 (5th Cir. 2002)).
Alabama law gives Richardson broad authority concerning appointments and
terminations. See Ala. Code § 11-43-81 (2014) (detailing the mayor’s appointment,
termination, and supervisory powers, and explicitly stating that a mayor “shall have
the power to appoint all officers whose appointment is not otherwise provided by
law”). Alabama law gives the mayor of small cities such as Carbon Hill authority to
vote with the city council on certain issues, and Richardson voted in the decision to
appoint Bobo over Allred. See Doc. 39-4, at 5. Furthermore, while Richardson and
Carbon Hill argue that Richardson was not a “final policymaker” for the purposes of
municipal liability, they essentially concede that Richardson was an official
decisonmaker acting under a grant of state law. See Doc. 39, at 24 (stating that “it is
undisputed that the Mayor and Council were exercising their statutory authority with
regard to appointing city officials”).
b.

Evaluating Allred’s Freedom of Association Claims

There is a genuine dispute of material fact as to whether Allred’s First
Amendment rights were violated regardless of whether the Pickering standard or the
Elrod-Branti standard is applied. The Court will briefly discuss each, despite the fact

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that the parties do not articulate any standard in their briefing for the Court to apply
when analyzing Allred’s First Amendment-based § 1983 claims. When analyzing
whether a government employee’s freedom of association rights have been violated
under the Pickering standard, the Eleventh Circuit uses a three-part test:
The first step is for the court to balance an employer’s interest in
maintaining an efficient workplace against the weight accorded the
employee’s First Amendment rights [i.e., the Pickering balancing test].
If the First Amendment interest is of sufficient importance, Plaintiffs
then have the burden of showing that the protected activity “was a
substantial motivating factor in the” decision [to effect an adverse
employment action]. If Plaintiffs demonstrate this, then the burden shifts
to Defendants to prove by a preponderance of the evidence that they
would [have taken the action] regardless of the parties’ divergent
political inclinations.
Thomas v. McKee, 205 F. Supp. 2d 1275, 1284 (M.D. Ala. 2002) (quoting Morgan v.
Ford, 6 F.3d 750, 754 (11th Cir. 1993)) (citing Pickering v. Bd. of Educ., 391 U.S. 563,
568 (1968)).7
The parties spend little time addressing whether there is sufficient evidence for
a jury to reasonably find a freedom of association violation. However, Allred has
produced evidence to suggest Richardson chose not to reappoint Allred based on

7

Pickering analysis normally implicates a forth factor: that the speech prompting retaliation
be of “public concern.” However, the Eleventh Circuit does not consider this factor when freedom
association—as opposed to freedom of speech—is at issue. See Hatcher v. Bd. of Pub. Educ. &
Orphanage for Bibb Cnty., 809 F.2d 1546, 1558 (11th Cir. 1987).
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Allred’s marriage and his wife’s political campaign. Specifically, Allred states that
Richardson told him it had been a “dirty campaign,” when Allred asked why he was
being terminated as police chief. In addition, Carbon Hill and Richardson offer no
argument addressing the first step of the Pickering balancing test (weighing the
employer’s interest in an efficient workplace against the public employee’s interest
in expression), presumably because there is no evidence that Allred’s off-duty
association with his wife’s political campaign impeded his ability to effectively serve
as police chief.
Furthermore, viewing the facts in the light most favorable to the non-movant,
there is no basis for concluding Richardson would have chosen not to reappoint Allred
regardless of Allred’s intimate and expressive associations. In fact, Allred has
provided evidence suggesting that his association with his wife’s campaign was the
reason for his non-reappointment. Thus, under Pickering, there is a genuine issue of
material fact as to whether Allred’s First Amendment rights were violated.
Allred also produces sufficient evidence to raise a genuine issue of material fact
under the Elrod-Branti standard. Under Elrod and Branti, political patronage firings
are due “exacting scrutiny,” and firings based off supposed political association will
be upheld as constitutional only if the government has a “vital interest in ensuring that

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‘representative government [will] not be undercut by tactics obstructing the
implementation of policies of the new administration.’” See McCabe, 12 F.3d at 1565
(quoting Elrod v. Burns, 427 U.S. 347, 367 (1976)); see also id. (stating that “such
dismissals are justifiable only when ‘the hiring authority can demonstrate that party
affiliation is an appropriate requirement for the effective performance of the public
office involved’” (quoting Branti v. Finkel, 445 U.S. 507, 518 (1980))).
Richardson and Carbon Hill offer no evidence that Allred’s firing was due to
feelings of professional disloyalty or that Allred would become ineffective as a police
chief as a result of his wife’s unsuccessful mayoral campaign. To the contrary, the
evidence on record suggests that Allred’s firing was the result of Richardson’s
personal animus, as Richardson told Allred he was not being reappointed because the
preceding election had been “a dirty campaign.” Allred also states that he received
a phone call from Richardson’s attorney saying that Allred’s job would suffer if his
wife did not withdraw from the election. Thus, there is a genuine issue of material fact
under the Elrod-Branti standard as well.
3.

Qualified Immunity for Richardson

Richardson argues that, even if the Court does find that a jury could reasonably
find a violation of Allred’s freedom of association rights, Richardson should be

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immune from suit due to qualified immunity. A governmental official acting within the
scope of his employment is “shielded from suit against him in his individual capacity
if, while performing a discretionary function, his conduct did not violate a clearly
established right of which a reasonable person would have known.” Chandler v. Sec’y
of Fla. Dept. of Transp., 695 F.3d 1194, 1198 (11th Cir. 2012) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). An official is performing a discretionary
function if the official was “performing a legitimate, job-related function . . . through
means that were within his power to utilize.” See Holloman ex rel. Holloman v.
Harland, 370 F.3d 1252, 1265–66 (11th Cir. 2004) (citing Hill v. DeKalb Reg’l Youth
Det. Ctr., 40 F.3d 1176, 1185 n.17 (11th Cir. 1994)). As a general matter, Alabama law
gives Richardson the authority to replace municipal officers at the conclusion of their
tenure. Furthermore, the relevant inquiry at this step is not whether Richardson’s
actions were an unconstitutional exercise of his authority. See id. at 1265. Rather,
Allred must demonstrate that Richardson’s exercise of discretionary authority
constituted a violation of clearly established law. See id. at 1267–68.
When deciding whether a right is “clearly established,” courts must define the
right at issue with specificity, taking into account the unique facts of the case. See
Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (stating that “we have instructed that

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courts should define the ‘clearly established’ right at issue on the basis of the ‘specific
context of the case’” (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001))). This is
especially true in First Amendment cases, as the fact-specific balancing test makes it
difficult for defendants to be “on notice” that their conduct violates clearly
established law. See Hansen v. Soldenwagner, 19 F.3d 573, 576 (11th Cir. 1994) (stating
that “because [the Pickering] multi-factor balancing process admits few bright lines,
a government agent will know only in the most extraordinary cases that ‘what he is
doing’ does violate the plaintiff’s rights” (citing Dartland v. Metro. Dade Cnty., 866
F.2d 1321, 1323 (11th Cir. 1989); Sims v. Metro Dade Cnty., 866 F.2d 1230, 1236–37
(11th Cir. 1992))).
However, an exact factual analogue does not have to exist for a defendant to be
on notice. See Thomas, 205 F. Supp. 2d at 1288 n.13 (“Although qualified immunity
does not require public officials to possess a logician’s inferential ability, neither does
it require absolutely identical factual scenarios before liability may be imposed. Rather,
the applicable standard is whether ‘a reasonable person in the position of the defendant
would know he is violating clearly established law.’” (quoting Hansen, 19 F.3d at
578)). Furthermore, this Court remains mindful to draw all factual inferences in favor
of the non-movant when crafting the factual contours of the case for the purposes of

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qualified immunity analysis.
Richardson may fairly be considered “on notice” that his decision not to
reappoint Allred violated the First Amendment. Refusing to reappoint someone to
government position has long-qualified as an “adverse employment action.” See
Cooper v. Smith, 89 F.3d 761, 765 (11th Cir. 1996) (finding that a public employer’s
failure to renew a deputy sheriff’s one-year commission due to the deputy exercising
First Amendment rights constituted an adverse employment action); see also Rutan v.
Republican Party of Ill., 497 U.S. 62, 75 n.8 (1990) (discussing the broad scope of
adverse employment actions prohibited by the First Amendment, and stating that the
First Amendment protects state employees “not only from [political] patronage
dismissals, but also from even an act of retaliation as trivial as failing to hold a birthday
party for a public employee . . . when intended to punish her for exercising her free
speech rights”); id. at 76 n.9 (reaffirming that a plaintiff does not need a protected
interest in continued employment to argue that she was dismissed for an
unconstitutional reason).
In addition, Richardson and Carbon Hill offer no evidence that Allred’s nonreappointment was motivated by concerns of loyalty or inefficiency as a result of his
intimate and expressive associations under the First Amendment. Courts have

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routinely held that political animus alone is an unconstitutional basis to take adverse
action against all but the highest-level, policy-making employees. See id. at 79 (finding
a refusal to promote—which, like reappointment, is a largely discretionary
action—based solely on the employee’s political affiliation to be unconstitutional); see
also Thomas, 205 F. Supp. at 1287–88 (finding a denial of qualified immunity to be the
obvious conclusion when a defendant does not even attempt to justify the adverse
employment action under the Pickering balancing test).
With rare exceptions inapplicable to this case,8 it is long-settled that public
employers may not take adverse employment action against employees based solely
on political association. Therefore, Richardson should have been “on notice” that he
was violating Allred’s First Amendment freedom of association rights. Richardson’s
request for qualified immunity is due to be denied.
4.

Legislative Immunity

As an alternative to qualified immunity, Richardson seeks legislative immunity,

8

One such exception is that discussed in Underwood v. Harkins, 698 F.3d 1335, 1341–44 (11th
Cir. 2012) (discussing the Eleventh Circuit’s approach to freedom of speech/association claims
when the plaintiff was a close “confidential subordinate” to the firing employer). Richardson and
Carbon Hill do not make an argument that Richardson was justified in not reappointing Allred on
such grounds. Furthermore, as discussed, there is nothing on record to indicate that Richardson had
reason to consider Allred untrustworthy. In fact, during the mayoral race, Richardson implied that
he had confidence that Allred would be a loyal police chief should Richardson win the election. See
Doc. 39-2, at 23 (claiming that Richardson told Allred he “didn’t have anything to worry about”
with respect to his job should Richardson win the election).
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arguing that the decision not to reappoint Allred was undertaken in his capacity as a
member of the Council. However, employment decisions are generally cast as
administrative acts, and legislative immunity does not apply. Bryant v. Jones, 575 F.3d
1281, 1306 (11th Cir. 2009). Also, legislative acts in the employment context involve
circumstances where lawmakers end a city official’s employment as a result of
policymaking. See Bogan v. Scott-Harris, 523 U.S. 44, 54–56 (1998) (stating that
“legislative acts” are those that implicate the “budgetary priorities of the city and the
services the city provides to its constituents”).
Richardson and Carbon Hill do not argue that the vote to deny Allred continued
employment was one of policy. Rather, they seem to rely exclusively on the notion that
the act of voting is a per se legislative function, and thus legislative immunity should
apply. The Eleventh Circuit has expressly and continuously rejected this argument.
See, e.g., Smith v. Lomax, 45 F.3d 402, 406 (11th Cir. 1995) (citing Crymes v. DeKalb
Cnty., 923 F.2d 1482 (11th Cir. 1991))). Therefore, Richardson’s request for legislative
immunity is due to be denied.9

9

Carbon Hill and Richardson also argue that they are entitled to state-agent immunity under
Alabama law. Of course, a defendant cannot use state law to seek immunity from alleged violations
of rights secured by the Constitution of the United States. To do so would be in violation of the
Supremacy Clause.
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5.

Municipal Liability

To recover against a municipality, a plaintiff must show: “(1) that [his or her]
constitutional rights were violated; (2) that the municipality had a custom or policy
that constituted deliberate indifference to that constitutional right; and (3) that the
policy or custom caused the violation.” Bankshot Billiards, Inc., v. City of Ocala, 634
F.3d 1340, 1349 (11th Cir. 2011). Implicit to the first requirement is the need for the
plaintiff to have suffered an “adverse employment action.” See McCabe, 12 F.3d at
1563. Having already discussed whether sufficient evidence exists for a finding of a
constitutional violation, this Court proceeds directly to the “policy or custom”
requirement.
While municipalities are not vicariously liable for § 1983 violations, a
municipality may be held liable when a plaintiff can show that “the action that is
alleged to be unconstitutional implements or executes a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that body’s officers.”
See Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658, 690–91 (1978) (also
stating that “it is when execution of a government’s policy or custom, whether made
by its lawmakers or by those whose edicts or acts may fairly be said to represent official
policy, inflicts the injury that the government as an entity is responsible under

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§ 1983”). Municipal liability “may be imposed for a single decision,” provided that
the municipal decisionmaker possessed “final authority to establish municipal policy
with respect to the action ordered.” See Pembaur v. City of Cincinnati, 475 U.S. 469,
480–81 (1986); see also McTernan v. City of York, Pa., 564 F.3d 636, 658–59. An official
lacks final authority when his or her decisions are “subject to meaningful
administrative review.” Scala v. City of Winter Park, 116 F.3d 1396, 1401 (11th Cir.
1997).
Defendants Carbon Hill and Richardson argue that Richardson lacked “final
authority” to terminate Allred, since Richardson’s decision to nominate someone
other than Allred for police chief still had to be approved by the Council. Generally,
the necessity of approval by a city council or commission will preclude a finding that
a policy maker’s decision was “final.” However, the Eleventh Circuit has emphasized
that meaningful administrative review must be provided for such decisions; a mere
“rubber stamp” by a supervisory body will not suffice. See Morro v. City of
Birmingham, 117 F.3d 508, 514–15 (11th Cir. 1997) (considering not only the
defendant-city’s governing regulations, but also “evidence of its actual practices”
when deciding whether a municipal officer was a “final decisionmaker” for the
purposes of municipal liability).

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Allred provides evidence that, before the Council had even considered who
would be appointed police chief, Richardson informed Allred that he would not be
reappointed to the position, which suggests that Richardson was already confident
that Allred’s non-reappointment would be summarily approved by the Council.
Richardson recommended the nomination of Bobo over Allred while presiding over
the Council. As mayor of Carbon Hill, Richardson had discretion to vote as a member
of the Council on any issue, see Ala. Code § 11-43-2 (2014), and Richardson admits to
voting for the appointment of Bobo over Allred. Finally, Richardson met with the
Council behind closed doors immediately following the appointment vote, presumably
to participate in discussions concerning whether to retain Allred in any capacity.
Considering the influence and proximity of the mayor’s office to the Carbon
Hill City Council, the Council’s appointment vote cannot be considered “meaningful
administrative review” of Richardson’s decision not to reappoint Allred. The
Eleventh Circuit has suggested that “meaningful” administrative review must come
from a body with some degree of control over the “subordinate”that makes the initial
decision. See Carter v. City of Melbourne, Fla., 713 F.3d 1161, 1167 (11th Cir. 2013)
(stating that “[w]hat our precedents mean by meaningful administrative review is
plainly review by a municipal officer’s superiors”). As mayor, Richardson presided

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over the appointment session and participated in the voting. Review by a group with
which Richardson was so involved himself can hardly be considered “meaningful.”
Allred provides further evidence that the appointment session was rushed and
superficial, and that the actual decision to end Allred’s employment was made before
the Council’s vote on the issue. Richardson informed Allred that he would no longer
be police chief before the appointment session, and made an in-session suggestion to
appoint someone other than Allred. The appointment session itself consisted of a swift
vocal vote on Bobo, and Allred’s name was never before the Council. Such facts
distinguish this case from those where courts have found that review by a city council
prevented a finding that a single city official was a “final policymaker.” Cf. Quinn, 330
F.3d 1320, 1326 (emphasizing that the plaintiff received a thorough, three-day “full
adversarial and evidentiary” review of the city official’s initial decision, and that the
plaintiff had provided no “evidence that the Council approved any improper motive
that [the city official] may have had”).
Furthermore, even if Richardson is not the “final policymaker,” Allred still has
a potential argument that the actions of the Council should hold Carbon Hill
municipally liable, as it is uncontested that the Carbon Hill City Council would be
considered the “final policymaker” for the purposes of municipal liability should

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Richardson not fit that role. Allred offers evidence that Richardson’s stated reason for
firing Allred was because of Allred’s association with his wife and her mayoral
campaign. Allred offers further evidence that Richardson and the Council discussed
Allred’s employment behind closed doors in the executive session, and it is reasonable
to infer that Richardson conveyed to the Council the same reasons for not
reappointing Allred. Whether the Council or Richardson carries the label, there is
potentially a “final policymaker”who violated Allred’s freedom of association rights,
and thus a sufficient basis for municipal liability.
Having decided that a “final policymaker” exists, there is sufficient evidence
for a jury to find that “a policy or custom” disregarding Allred’s freedom of
association rights. Finally, there is evidence that the “custom or policy” at issue
caused Allred’s termination, since Allred states that Richardson told him in their final
meeting that he was firing Allred because of Allred’s association with his wife’s
campaign. Because Allred can potentially show not only a violation of his First
Amendment rights, but also that violation was caused by a “policy or custom” of
Carbon Hill, summary judgement is due to be denied on the municipal liability issue.
6.

Dismissal of Any Claims Brought Against Richardson in His
Official Capacity

Allred appears to have attempted to sue Richardson in his official capacity in
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addition to suing Carbon Hill directly. However, there is no important distinction
between a claim brought against a government employee in his official capacity and
a claim brought directly against the governmental entity. See Hardy v. Town of
Hayneville, 50 F. Supp. 2d 1176, 1184–85 (M.D. Ala. 1999) (stating that “official-suit
capacities . . . ‘generally represent only another way of pleading an action against an
entity of which an officer is an agent.’” (quoting Kentucky v. Graham, 473 U.S. 159,
165–66 (1985))); see also id. (stating that “[a]s long as the government entity receives
notice and an opportunity to respond, an official-capacity suit is, in all respects, other
than name, to be treated as a suit against the entity”). Therefore, this Court dismisses
any official-capacity claims against Richardson.
IV.

Conclusion
For the foregoing reasons, Carbon Hill and Richardson’s motion for summary

judgment (Doc. 38) is GRANTED with respect to Allred’s due process claim under
42 U.S.C. § 1983 and wrongful termination claim under Ala. Code § 11-43-230.
Carbon Hill and Richardson’s motion is DENIED in all other respects. To the extent
that Allred has attempted to bring claims against Richardson in his official capacity,
those claims are DISMISSED with prejudice.

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A separate Order will be entered.
Done this 24th day of October 2014.

L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
177822

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