Polion v. The City of Greensboro et al

Filing 47

ORDER granting in part and denying in part 33 Motion for Summary Judgment; denying 44 Motion to Supplement Evidentiary Submissions. Signed by Chief Judge William H. Steele on 6/10/2014. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
MORRIS POLION,

)
)
Plaintiff,
)
)
v.
) CIVIL ACTION 13-0244-WS-M
)
THE CITY OF GREENSBORO, et al., )
)
Defendants.
)
ORDER
This matter is before the Court on the defendants’ motion for summary
judgment. (Doc. 33). The parties have filed briefs and evidentiary materials in
support of their respective positions, (Docs. 34-36, 42, 45), and the motion is ripe
for resolution.1 After careful consideration, the Court concludes that the motion is
due to be granted in part and denied in part.
BACKGROUND
According to the amended complaint, (Doc. 19), the plaintiff was employed
as a police officer by the defendant City of Greensboro (“the City”). Defendants
Willie Hudson and Michael Hamilton were the chief and assistant chief,

1

The defendants’ motion to supplement their evidentiary submission, (Doc. 44),
is denied. The defendants seek to submit an amended affidavit to correct an alleged error
in the original version, but doing so could not eliminate the fact issue created by the
original. The defendants also seek to introduce an affidavit which, according to their own
citations, (Doc. 39), was in their possession over a month before their motion was filed
and almost three weeks before the plaintiff’s brief was filed. “Absent extenuating
circumstances (which are not present here), the time for submitting a summary judgment
record is contemporaneously with the filing of the principal brief, not after the nonmovant has already filed a response and briefing has closed.” Sideraulic System SpA v.
Briese Schiffahrts GmbH & Co., 2011 WL 3204521 at *2 (S.D. Ala. 2011). The
proffered evidence, even were it accepted, would not and could not alter the Court’s
ruling on motion for summary judgment.

respectively, of the City police department. The plaintiff complained to the mayor
and two city council members about ineptitude, malfeasance and possible
unlawful behavior by Hudson and Hamilton. At some point, Hudson and
Hamilton learned of the plaintiff’s complaints and began retaliating against him
with respect to various working conditions. In the summer of 2012, the plaintiff’s
employment was terminated.
The amended complaint includes four counts, all of which name the City as
a defendant and all but the last of which also name Hudson and Hamilton as
defendants. Count One alleges that the defendants terminated the plaintiff in
retaliation for his exercise of First Amendment rights.2 Count Two alleges that the
defendants violated the plaintiff’s equal protection and due process rights. Count
Three alleges that the individual defendants committed the tort of outrage under
Alabama law and that the City authorized, ratified and/or condoned their conduct.
Count Four alleges that the City negligently or maliciously retained, supervised
and trained Hudson and Hamilton. The defendants seek summary judgment as to
all counts.
DISCUSSION
Summary judgment should be granted only if “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). The party seeking summary judgment bears “the initial
burden to show the district court, by reference to materials on file, that there are no
genuine issues of material fact that should be decided at trial.” Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its
burden in either of two ways: (1) by “negating an element of the non-moving
party’s claim”; or (2) by “point[ing] to materials on file that demonstrate that the
2

Contrary to the defendants’ understanding, (Doc. 35 at 14-15), Count One does
not extend to forms of retaliation short of termination. By its terms, Count One alleges
only that “the Defendants retaliated against [the plaintiff] … by terminating him.” (Doc.
19 at 5).
2

party bearing the burden of proof at trial will not be able to meet that burden.” Id.
“Even after Celotex it is never enough simply to state that the non-moving party
cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305,
1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).
“When the moving party has the burden of proof at trial, that party must
show affirmatively the absence of a genuine issue of material fact: it must support
its motion with credible evidence ... that would entitle it to a directed verdict if not
controverted at trial. [citation omitted] In other words, the moving party must
show that, on all the essential elements of its case on which it bears the burden of
proof, no reasonable jury could find for the nonmoving party.” United States v.
Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc)
(emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115
(11th Cir. 1993).
“If the party moving for summary judgment fails to discharge the initial
burden, then the motion must be denied and the court need not consider what, if
any, showing the non-movant has made.” Fitzpatrick, 2 F.3d at 1116; accord
Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.
“If, however, the movant carries the initial summary judgment burden ...,
the responsibility then devolves upon the non-movant to show the existence of a
genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving
party fails to make ‘a sufficient showing on an essential element of her case with
respect to which she has the burden of proof,’ the moving party is entitled to
summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett,
477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a
party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may …
consider the fact undisputed for purposes of the motion ….”).
In deciding a motion for summary judgment, “[t]he evidence, and all
reasonable inferences, must be viewed in the light most favorable to the
3

nonmovant ….” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243
(11th Cir. 2003).
There is no burden on the Court to identify unreferenced evidence
supporting a party’s position.3 Accordingly, the Court limits its review to the
exhibits, and to the specific portions of the exhibits, to which the parties have
expressly cited. Likewise, “[t]here is no burden upon the district court to distill
every potential argument that could be made based upon the materials before it on
summary judgment,” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599
(11th Cir. 1995), and the Court accordingly limits its review to those arguments the
parties have expressly advanced.
I. First Amendment.
In the spring of 2012, the plaintiff responded to a domestic disturbance call
at an apartment complex, which ended with the plaintiff moving a television from
the apartment to another apartment across the hall. The female occupant claimed
the television was hers and ultimately lodged a complaint with Hamilton. Hudson
investigated the incident and recommended that the plaintiff be terminated. At the
plaintiff’s request, a pre-disciplinary hearing was held before a three-person
grievance committee. After hearing testimony from the complainant, the plaintiff
and Hudson, the grievance committee recommended termination, and the city
council accepted the recommendation. The plaintiff asserts that Hudson’s
recommendation and testimony were in retaliation for the exercise of his free
speech rights. (Doc. 42 at 15).
For a public employee to sustain a claim of retaliation for
protected speech under the First Amendment, the employee must show
3

Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it
may consider other materials in the record.”); accord Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 672 (10th Cir. 1998) (“The district court has discretion to go beyond the
referenced portions of these [summary judgment] materials, but is not required to do
so.”).

4

by a preponderance of the evidence these things:
(1) the employee’s speech is on a matter of public concern; (2)
the employee’s First Amendment interest in engaging in the
speech outweighs the employer’s interest in prohibiting the
speech to promote the efficiency of the public services it
performs through its employees; and (3) the employee’s speech
played a substantial part in the employer’s decision to
demote or discharge the employee.
Battle v. Board of Regents, 468 F.3d 755, 760 (11th Cir. 2006) (internal quotes
omitted). “Once the employee succeeds in showing the preceding factors, the
burden then shifts to the employer to show, by a preponderance of the evidence,
that it would have reached the same decision … even in the absence of the
protected conduct.” Id. (internal quotes omitted); accord Bryson v. City of
Waycross, 888 F.2d 1562, 1565-66 (11th Cir. 1989). The defendants argue the
plaintiff cannot establish any of the three listed elements and that they have
established the plaintiff would have been fired regardless of his speech.
The plaintiff identifies his protected speech as addressing the following
matters. First, that Hudson, immediately following a fatal shooting by the
grandson of his good friend, declared the shooting to be in self-defense and
thereafter obstructed an investigation into the shooting, including by advising the
shooter (and the person who supplied him the gun) to leave town. Second, that
Hudson and Hamilton found marijuana in a car, kept the marijuana but released
the vehicle’s driver, and thereafter failed to file a report accounting for the
marijuana they had seized. Third, that Hudson on multiple occasions acted
unnecessarily aggressively, including by striking several citizens (on the head and
elsewhere) with his flashlight and by using pepper spray on high school students.
The plaintiff states that he reported this conduct to the mayor and to two city
council members. (Doc. 42 at 3-4, 11; Plaintiff Deposition at 48-49, 60-61, 64-67,
69, 77-78, 127-30, 146-56, 167-68).
A. Public Concern.

5

Whether a plaintiff was speaking as a citizen on a matter of public concern
is a question of law for the Court to decide. Vila v. Padron, 484 F.3d 1334, 1339
(11th Cir. 2007). But the Court must do so in light of the evidence presented, the
arguments raised and supported, and with due regard for the threshold burden that
Rule 56 places on the defendants.
The defendants first invoke Garcetti v. Ceballos, 547 U.S. 410 (2006),
which “hold[s] that when public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for First Amendment
purposes, and the Constitution does not insulate their communications from
employer discipline.” Id. at 421. With no analysis or explanation, the defendants
posit that “such was the case with Polion.” (Doc. 35 at 18). The defendants offer
neither an evidentiary rendition of what the plaintiff’s official duties were nor a
legal analysis of what constitutes speaking “pursuant to [one’s] official duties”
under Garcetti.4 The defendants’ raw ipse dixit is wholly inadequate to carry their
initial burden, or to cast any burden on the plaintiff to respond or on the Court to
develop and support an argument on their behalf.
To determine whether [a] statement receives First Amendment
protection we must decide whether [the plaintiff] spoke … as a citizen
on a matter of public concern or as an employee upon matters of
personal interest. [citation omitted] To do this, we look to the content,
form, and context of a given statement, as revealed by the whole record.
[citation omitted] We ask whether the main thrust of the speech
in question is essentially public in nature or private, whether the
speech was communicated to the public at large or privately to an
individual, and what the speaker’s motivation in speaking was.
4

The Court notes that the plaintiff in Garcetti, a prosecutor, had “a responsibility
to advise his supervisor about how best to proceed with a pending case,” such that his
recommendation that a prosecution be dismissed was made pursuant to his official duties.
547 U.S. at 414, 421. The defendants have identified no evidence that the plaintiff’s job
duties as a police officer included reporting misconduct by the police chief and assistant
chief. The Court also notes the Supreme Court’s skepticism of written job descriptions as
“neither necessary nor sufficient to demonstrate that conducting the task [at issue] is
within the scope of the employee’s professional duties for First Amendment purposes.”
Id. at 425.

6

Vila, 484 F.3d at 1340 (internal quotes omitted). Since “[a]n employee’s speech
will rarely be entirely private or entirely public[, …] we consider whether the
speech at issue was made primarily in the employee’s role as citizen, or primarily
in the role of employee.” Morgan v. Ford, 6 F.3d 750, 755 (11th Cir. 1993)
(internal quotes omitted).
According to the defendants, these factors reflect that the plaintiff spoke
primarily as an employee on matters of personal interest. They say the plaintiff
was “complaining about his work environment,” that he spoke only privately, and
that he was motivated by self-interest because “he was angry over the job
assignment change, occurring several years back, and it was in his personal
interest for the chief to be displaced.” (Doc. 35 at 16-18).
1. Content.
As noted above, the plaintiff bases his claim on statements he made
concerning alleged obstruction of justice, mishandling of contraband, and use of
excessive force. The defendants do not explain how these matters could possibly
be viewed as mere complaints by the plaintiff about his work environment.5 In
Fikes v. City of Daphne, 79 F.3d 1079 (11th Cir. 1996), the Court held that a
complaint alleged speech on a matter of public concern when it alleged the
plaintiff “was fired because he reported police misconduct (i.e., failure to
terminate a dangerous, high-speed chase, and improper use of a confiscated
5

The defendants acknowledge the plaintiff says he made these complaints, (Doc.
35 at 4-5), so they are not speaking from ignorance. The defendants do say the plaintiff
also complained (vaguely) about how Hudson treated officers and how he promoted an
officer to sergeant ahead of more qualified officers, (id.), but the plaintiff does not rely on
those statements in support of his claim. (Doc. 42 at 4, 11). Even had he done so, the
Court would be required to ignore them in its calculus of whether the plaintiff spoke on a
matter of public concern. E.g., Kurtz v. Vickrey, 855 F.2d 723, 728 (11th Cir. 1988)
(“Although we agree with the district court that a substantial portion of [the plaintiff’s]
expressions related to matters not properly characterized as relating to public concern, we
cannot say that all of his speech failed to meet this threshold test.”).

7

vehicle).” Id. at 1084. “Certainly, the question of whether police officers are
properly performing their duties, as a public safety issue, must be considered an
issue of political or social concern.” Id.6 Likewise, “[t]here can be no doubt that
corruption in a police department is an issue of public concern.” Cooper v. Smith,
89 F.3d 761, 765 (11th Cir. 1996). The plaintiff relies on Fikes and Cooper, (Doc.
42 at 10-11), yet the defendants ignored these cases in their reply brief. They did
so at their peril.
“Content is undoubtedly the most important factor in assessing whether
particular speech touches on a matter of public concern.” Mitchell v. Hillsborough
County, 468 F.3d 1276, 1284 (11th Cir. 2006). However, “when context and
motivation are considered, even speech that, content-wise, lies near the core of the
First Amendment’s protection – archetypical public speech – may be deemed
private speech.” Id. Thus, even when, as here, defendants start out in a rather
deep hole, context and motivation might in a proper case dig them out.
2. Context.
The plaintiff made his statements to the mayor and to two city council
members, individually. While, as the defendants note, (Doc. 35 at 18), the
plaintiff did not go the media or address the city council in open session, “[n]either
the [First] Amendment itself nor our decisions indicate that this freedom [of
speech] is lost to the public employee who arranges to communicate privately with
his employer rather than to spread his views before the public. We decline to
adopt such a view of the First Amendment.” Givhan v. Western Line
Consolidated School District, 439 U.S. 410, 415-16 (1979). “Many citizens do
much of their talking inside their respective workplaces, and it would not serve the
goal of treating public employees like any member of the general public … to hold
that all speech within the office is automatically exposed to restriction.” Garcetti,
6

Speech that relates to a matter of political or social concern is speech addressing
a matter of public concern. Fikes, 79 F.3d at 1084.
8

547 U.S. at 421 (citations and internal quotes omitted). “We have … held that
speech relates to a matter of public concern in numerous instances where the
speech was relayed only to decisionmakers and not to the general public.” Rodin
v. City of Coral Springs, 229 Fed. Appx. 849, 856 (11th Cir. 2007) (citing, inter
alia, Fikes, where the plaintiff reported police misconduct only to the Alabama
Bureau of Investigation). Thus, “the fact that [the plaintiff city employee’s]
expression was directed to [the mayor] privately does not render his speech
outside the purview of the first amendment.” Berdin v. Duggan, 701 F.2d 909,
912 (11th Cir. 1983). As the defendants acknowledge, the plaintiff’s reporting to
the mayor and city council members privately “is not a decisive factor.” (Doc. 35
at 18).
3. Motivation.
“[A]n employee’s motive for speech, while not dispositive, is a factor that
must be considered in determining whether speech is a matter of public concern.”
Mitchell, 468 F.3d at 1283-84 (internal quotes omitted). Thus, for example, a
“clear personal animus motivating [speech] may have been sufficient to render
that speech essentially private ….” Id. at 1284.
The defendants have presented evidence that Hudson transferred the
plaintiff from investigations to patrol after a local judge notified Hudson he had
been forced to dismiss 44 warrants due to errors by the plaintiff. (Hudson
Affidavit, ¶ 4; Doc. 35 at 14). From this, the defendants surmise that the
plaintiff’s motivation in speaking about Hudson was anger over this transfer and a
desire to have Hudson removed as chief. (Id. at 16-18).
Such a motivation is theoretically possible but unlikely for a number of
reasons. First, the defendants admit that the move from investigations to patrol
was “no demotion” but a “simple transfer.” Second, they admit that “[t]here was
no change in rank” and “no decrease in pay or benefits.” Third, they admit this
innocuous transfer “occurred much more than two years before [the plaintiff] was
9

terminated.” Fourth, they admit the plaintiff knew the change was initiated
because the judge had told Hudson the plaintiff did not need to be in the
investigations department. (Hudson Affidavit, ¶ 7). Fifth, they can point to no
other evidence (for example, statements by the plaintiff) to support their theory.
“In the cases where we have found no matter of public concern, we have
concluded that the motivation behind the employee’s speech was purely private.”
Rodin, 229 Fed. Appx. at 855 (emphasis added). The defendants’ speculation
cannot establish that the plaintiff reported Hudson’s conduct simply to retaliate for
an ancient, neutral employment decision. At least in part if not in full,
“in alleging police misconduct, [the plaintiff] sought to bring to light actual or
potential wrongdoing or breach of public trust on the part of government
officials.” Fikes, 79 F.3d at 1084.
4. Summary.
The content of the plaintiff’s speech addressed core public concerns. There
is no evidence that the plaintiff’s motivation in speaking was purely or even
partially personal revenge, and the mere fact that he addressed City officials
privately rather than publicly accusing Hudson and Hamilton of official
misconduct does not withdraw his speech from First Amendment protection.
B. Balancing of Interests.
As with the question of public concern, whether a plaintiff’s interest in
speaking outweighs the employer’s interest in prohibiting the speech is a question
of law for the Court to decide. Vila, 484 F.3d at 1339. Again, however, the Court
must perform its function based on the evidence and argument presented and in
accordance with Rule 56.
The balancing required by First Amendment analysis in the public
employee context compares “the employee’s First Amendment interest in
engaging in the speech” with “the employer’s interest in prohibiting the speech.”
10

Battle, 468 F.3d at 760. Factors include “the manner, time, and place of the
employee’s expression and the context in which the dispute arose.” Leslie v.
Hancock County Board of Education, 720 F.3d 1338, 1346 (11th Cir. 2013)
(internal quotes omitted). In addition, “[t]he [Supreme] Court has also recognized
as pertinent considerations whether the statement impairs discipline by superiors
or harmony among co-workers, has a detrimental impact on close working
relationships for which personal loyalty and confidence are necessary, or impedes
the performance of the speaker’s duties or interferes with the regular operation of
the enterprise.” Id. ( internal quotes omitted). The analysis is known as “the
Pickering balance.” E.g., Leslie, 720 F.3d at 1346.
In the single paragraph they devote to the balancing issue, the defendants
place the wrong item in the scales. Rather than comparing the plaintiff’s interest
in his speech with his employer’s interest in prohibiting that speech, the
defendants compare the plaintiff’s interest in his speech with the employer’s
interest in terminating the plaintiff for lack of honesty and integrity in connection
with the television incident. (Doc. 35 at 19). “This argument is without merit as
[the defendants] confus[e] this, the second prong, with the third and fourth prongs
of” the analysis. Stanley v. City of Dalton, 219 F.3d 1280, 1289 n.15 (11th Cir.
2000).
The closest the defendants come to addressing the balancing test is their
unamplified complaint that the plaintiff’s statements about Hudson and Hamilton
“lack … credibility.” (Doc. 35 at 19; accord Doc. 45 at 9). Despite the
defendants’ failure to support or explain their position, the Court will consider it.
In Stanley, the plaintiff police officer told the Georgia Bureau of
Investigation (“GBI”) that he suspected the deputy police chief of stealing money
from the evidence room. His only support for this theory was that the chief was
one of two people with keys to the evidence room and that it appeared to be an
inside job. 219 F.3d at 1282. In weighing the parties’ competing interests, the
Eleventh Circuit first recognized “the admittedly strong interests of [a deputy
11

police chief] and the police department in maintaining close working relationships,
mutual respect, discipline, and trust in the quasi-military setting of the police
department.” Id. at 1289. Moreover, “[t]he police department has a strong interest
in preventing disruptive speech, such as unfounded accusations against superiors.”
Id. at 1290. However, although the plaintiff expressed only a theory rather than
concrete statements of fact about what he had seen, heard or knew, he “had some
factual basis, albeit slight, for telling the GBI that he suspected” the deputy chief.
Id. Given that slight factual basis, the plaintiff’s failure to broadcast his theory
past the GBI, the absence of any evidence his statement had disrupted the police
department’s operations, and the defendants’ failure to show that the plaintiff
“intentionally and falsely accused” the deputy chief of theft, the Eleventh Circuit
“conclude[d] that the Pickering balance tilts in [the plaintiff’s] favor.” Id. at 129091.
Just so here. The defendants have not asserted the plaintiff has no factual
basis for his statements, many of which address events he witnessed.7 By “lack of
credibility,” the defendants apparently mean only that Hudson and Hamilton deny
some (though not all) of the plaintiff’s accusations. (Doc. 35 at 4-6). But those
denials merely set up a factual dispute; they do not on their own establish the
defendants’ version as accurate. And the defendants fail even to deny much of
what the plaintiff reported.8
7

The plaintiff has offered testimony that he was present: when Hudson told a
shooting suspect that he and the person who supplied him the weapon should leave town;
when Hudson and Hamilton took marijuana from a citizen and let him go; when Hudson
shoved a citizen against a wall, bumping her head; on three occasions when Hudson
struck a citizen with his flashlight; and on one occasion when Hudson pepper sprayed a
high school coed. (Plaintiff Deposition at 60-61, 69, 77-78, 127-30, 150-51, 154, 167).
8

The affidavits on which the defendants rely, (Doc. 35 at 4-6), do not address at
least the following: Hudson’s telling a shooting suspect that he and the person who
supplied him the weapon should leave town; the failure of Hudson and Hamilton to
account for contraband taken from a suspect; and several instances of Hudson’s use of
allegedly excessive force. (Hudson Affidavit, ¶¶ 13-14, 16-18; Hamilton Affidavit, ¶ 3).

12

The plaintiff did not broadcast his concerns but confined his statements to
three individuals holding positions of official authority over Hudson and
Hamilton. There is no evidence the plaintiff’s statements disrupted police
operations or that the plaintiff deliberately lied. On this state of affairs the Court
must conclude that, as in Stanley, the balancing of interests favors the plaintiff.
C. Substantial Part.
Hudson recommended that the plaintiff be terminated. When the plaintiff
requested a pre-disciplinary hearing, a grievance committee convened, heard
evidence, and unanimously recommended to the city council that the plaintiff be
terminated. The city council, without dissent, voted to accept the committee’s
recommendation, and the plaintiff was terminated. (Hudson Affidavit, ¶ 6; Cook
Affidavit, Exhibits 1-6).
The plaintiff does not accuse either the grievance committee or the city
council of acting from a retaliatory motive.9 Instead, the plaintiff argues only that
Hudson’s recommendation and testimony were infected with retaliatory animus.
(Doc. 42 at 15). According to the defendants, Hudson made his recommendation
based on evidence of misconduct and dishonesty in connection with the television
incident. (Hudson Affidavit, ¶ 8).
The defendants offer three reasons why the plaintiff cannot establish that
his speech played a substantial part in the decision to terminate him: (1) the
plaintiff has no evidence that Hudson was aware the plaintiff had made statements
about him or Hamilton; (2) the plaintiff has no evidence that Hudson harbored a
retaliatory motive; and (3) even if Hudson had such a motive, others who lacked a
retaliatory motive made the decision to terminate. (Doc. 35 at 19-21).

9

While he believes the committee was “biased,” (Plaintiff Deposition at 272-73),
the plaintiff does not assert this bias was based on a retaliatory motive; indeed, he does
not assert the committee members had any inkling he had engaged in protected speech.
The bias he suspects is bias in favor of Hudson as police chief. (Id. at 245-46).
13

1. Hudson’s awareness of the plaintiff’s protected speech.
The parties, and the Court, assume that Hudson could not have
recommended termination in retaliation for the plaintiff’s protected speech unless
he was aware that the plaintiff had engaged in such speech.10 Hudson denies
knowing the plaintiff was making complaints to the mayor and city council
members. (Hudson Affidavit, ¶ 7). The plaintiff has presented evidence,
however, that Hudson told the officers, when he became police chief, that every
time an officer speaks to a council member, he (Hudson) knows about it. (Plaintiff
Deposition at 96-97). Later, about six months before the plaintiff was terminated,
Hudson again said, “[Y]ou guys got to stop talking with the councilmen because
every time you say something to them, I know what you said.” (Id. at 177-78).
The defendants do not address this evidence in their reply brief, and it plainly
creates an issue of fact as to whether Hudson was aware of the plaintiff’s
complaints about him.
2. Hudson’s retaliatory animus.
“[W]e examine the record as a whole to ascertain whether [the plaintiff]
presented sufficient evidence for a reasonable jury to conclude that his protected
speech was a ‘substantial’ motivating factor in the decision to terminate him.”
Stanley, 219 F.3d at 1291. “There is no one factor that is outcome determinative,
but all factors must be taken into account.” Id. at 1291 n.20. These factors
include: whether “termination closely follows protected activity”; “whether any
other asserted reasons for the termination were shown to be pretextual”; “any
comments made, or actions taken, by the employer indicating that the discharge
was related to the protected speech”; “whether the asserted reason for the
discharge varied”; and other “circumstantial evidence of causation including such
10

Cf. Gupta v. Florida Board of Regents, 212 F.3d 571, 590 (11th Cir. 2000)
(Title VII case) (“To establish a causal connection, a plaintiff must show that the
decisionmakers were aware of the protected conduct ….”).
14

facts as who initiated any internal investigations or termination proceedings,
whether there was any evidence of management hostility to the speech in question,
or whether the employer had a motive to retaliate.” Id. (internal quotes omitted).
The plaintiff relies primarily on the first of these factors to create a jury
issue as to Hudson’s retaliatory animus, yet he fails to set forth any evidence of
temporal proximity. (Doc. 42 at 14). From deposition excerpts cited by the
defendants, the Court can determine that the plaintiff has no evidence of any
conversation with the mayor or either of the two council members less than “a
couple of months” before he was notified of Hudson’s recommendation. (Plaintiff
Deposition at 54-56). This is too long a gap to furnish significant evidence of a
retaliatory animus.11 Moreover, during his employment the plaintiff talked to the
mayor about all sorts of things (such as carpentry) not subject to First Amendment
protection, (id. at 75), and he has no evidence that the conversations closest in
time to Hudson’s recommendation involved protected speech.
The plaintiff next complains that Hudson “blew the television incident out
of proportion.” (Doc. 42 at 15). Notably, he does not assert that Hudson
fabricated the incident or the evidence surrounding it, and he would be hardpressed to support such an assertion. It is uncontroverted that the complainant
approached Hamilton and accused the plaintiff of taking her television against her
will and refusing to return it. (Hamilton Affidavit, ¶ 5). It is uncontroverted that
Hudson’s investigation of this complaint included at least the following: (1)
questioning the complainant; (2) questioning the plaintiff; (3) questioning the
officer accompanying the plaintiff; (4) obtaining rental documents; (5) inspecting
the apartment rented in the plaintiff’s name; and (6) questioning the officer whom
the plaintiff said was living there. (Hudson Affidavit, ¶ 5; Smith Affidavit, ¶¶ 56). It is uncontroverted that the investigation revealed at least the following: (1)
that the complainant informed the plaintiff the television was hers; (2) that the
11

Cf. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007)
(Title VII case) (three months is too long to support an inference of causation).
15

plaintiff nonetheless instructed that the television be taken to the other apartment;
(3) that the apartment into which the television was moved was rented in the
plaintiff’s name; (4) that the plaintiff was receiving the apartment rent-free in
exchange for providing security; (5) that the complainant tried repeatedly over an
extended period to get the plaintiff to return the television, without success; (6)
that the television was still in the apartment several months later, plugged in; and
(7) that the apartment was not occupied by the female officer identified by the
plaintiff. (Hudson Affidavit, ¶ 5 & Exhibit 1; Smith Affidavit, ¶¶ 3-6, 9; Hamilton
Affidavit, ¶¶ 5-6). And it is uncontroverted that the investigation revealed
evidence of at least the following instances of dishonesty by the plaintiff: (1)
denying that the complainant had told him the television was hers (even though
the complainant and the assisting officer confirmed she had done so); and (2)
asserting that another officer lived in the apartment (even though that officer
denied it). (Hudson Affidavit, ¶ 5).
Given that evidence, on what basis does the plaintiff assert that Hudson
blew the incident out of proportion? The plaintiff wisely does not suggest that
lying to his superior is appropriate conduct, he admits it would violate policy for
him to remove the television after the complainant stated it was hers, (Plaintiff
Deposition at 200-01, 209), and if it was wrong to remove the television it was
equally wrong not to return it upon request for an extended period and even more
wrong to keep the television, in use, in his own apartment.12
The plaintiff has his own, exculpatory version of events. He denies that the
complainant identified the television as hers, and he says he made efforts to return
the television to her. He concedes the apartment was rented in his name, but he
says another officer was actually living there. But his version, especially in the
face of contradictory statements from every other witness, (Hudson Affidavit, ¶ 5),
12

The defendants hint that the plaintiff’s acceptance of a rent-free apartment was
problematic, but they have neither said so expressly nor offered support for such a
proposition. The Court therefore does not consider it.

16

could scarcely render it unreasonable for Hudson to pursue corrective action. Cf.
Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010)
(Title VII case) (“[The] inquiry is limited to whether [the] employer believed [the]
employee was guilty of misconduct and if so, whether that was [the] reason behind
[his] discharge; that [the] employee did not actually engage in misconduct is
irrelevant.”) (emphasis in original). The evidence of the plaintiff’s misconduct is
not so flimsy as to suggest Hudson did not truly believe it had occurred. It is
worth noting that the three grievance committee members, who are not alleged to
have harbored a retaliatory motive, heard the plaintiff and the complainant testify
and believed the complainant rather than the plaintiff. (Doc. 34, Exhibits E-G).
It appears the plaintiff argues that Hudson blew the television incident out
of proportion, not by pursuing corrective action but by recommending termination
rather than reprimand or suspension. (Doc. 42 at 16). But the plaintiff
acknowledges that termination was an available option given his infractions, (id.
& Ex. B), and nothing required Hudson to eschew that option, even if the plaintiff
believes a lesser sanction would have sufficed. “[A] plaintiff may not establish
that an employer’s proffered reason is pretextual merely by questioning the
wisdom of the employer’s reason, at least not where, as here, the reason is one that
might motivate a reasonable employer.” Combs v. Plantation Patterns, 106 F.3d
1519, 1543 (11th Cir. 1997) (Title VII case). Certainly the conduct at issue here
might motivate a reasonable employer to terminate the offender, as is made
manifestly clear by the agreement of seven admittedly non-retaliatory individuals
(the three committee members plus the four voting members of the city council)
that termination was an appropriate sanction.
The plaintiff’s only other effort to show Hudson’s retaliatory motive
involves the timing of his termination recommendation. According to the affidavit
of the city clerk, the plaintiff was issued a notice of intent to terminate
employment on June 12, 2012. (Cook Affidavit, ¶ 7). Yet the clerk also states
that Hudson did not learn of the television incident until June 14, 2012. (Id., ¶ 4).
17

The plaintiff concludes that Hudson recommended termination before even
knowing of the television incident he says was the basis of his recommendation,
thereby suggesting his real basis must be retaliation. (Doc. 42 at 6-7 & 6 n.1).
The defendants respond that the date of June 14 is a “scrivener’s error” and
that the correct date is June 4, and they request permission to file a supplemental
affidavit correcting the error. (Doc. 44 & Exhibit J). The Court has denied that
motion, see n.1, supra, because the supplemental affidavit cannot erase the
original affidavit with its June 14 date. Even without a supplemental affidavit,
however, the June 14 date is unhelpful to the plaintiff, because the June 12 notice
of intent expressly references Hudson’s investigation of the television incident,
(Cook Affidavit, Exhibit 1), making it obvious that Hudson did in fact know of the
incident when he recommended termination. A conflict in the evidence there may
be, but no conflict that a properly functioning jury could resolve in favor of the
plaintiff.
In summary, the plaintiff has not identified sufficient evidence for a
reasonable jury to conclude that his protected speech was a substantial motivating
factor in Hudson’s recommendation that he be terminated or in his testimony at
the plaintiff’s pre-disciplinary hearing. Without such evidence, his First
Amendment claim necessarily fails as to all defendants.
3. Hudson’s relationship to the termination decision.
The defendants stress that it was the city council, not Hudson, that
terminated the plaintiff, and that the termination decision was based on the
recommendation of the grievance committee, which heard evidence and reached
its own decision. (Doc. 35 at 20-21). The plaintiff responds that the necessary
causal connection between Hudson’s recommendation and the city council’s
decision can be drawn under either the Eleventh Circuit’s familiar “cat’s paw”
theory or the Supreme Court’s more recent “proximate cause” variant. (Doc. 42 at

18

14-15). In reply, the defendants address the former theory but not the latter. (Doc.
45 at 10-11).
In the Title VII context, “[o]ne way of proving that the discriminatory
animus behind the recommendation caused the discharge is under the ‘cat’s paw’
theory. This theory provides that causation may be established if the plaintiff
shows that the decisionmaker followed the biased recommendation without
independently investigating the complaint against the employee.” Stimpson v. City
of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999); accord Crawford v. Carroll,
529 F.3d 961, 979 n.21 (11th Cir. 2008). Because the grievance committee
conducted an independent investigation by taking testimony from the plaintiff, the
complainant and Hudson and making its own determinations of credibility and
culpability rather than simply relying on Hudson’s recommendation, under
traditional cat’s paw theory the plaintiff could not establish causation even had he
presented evidence that Hudson acted with a retaliatory motive.
However, in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), the
Supreme Court rejected in some contexts the Seventh Circuit’s version of cat’s
paw theory, which precludes liability based on a biased recommendation if “the
decisionmaker is not wholly dependent on a single source of information and
conducts her own investigation into the facts relevant to the decision.” Id. at 1190
(internal quotes omitted).
Staub arose under the Uniformed Services Employment and Reemployment
Rights Act (“USERRA”), which protects service members against adverse actions
as to which their status “is a motivating factor.” 131 S. Ct. at 1190-91 (quoting 38
U.S.C. § 4311(c)). The Court noted that “when Congress creates a federal tort it
adopts the background of general tort law.” Id. at 1191. Applying that body of
law, the Court “h[e]ld that if a supervisor performs an act motivated by
antimilitary animus that is intended by the supervisor to cause an adverse
employment action, and if that act is a proximate cause of the ultimate
employment action, then the employer is liable under USERRA.” Id. at 1194.
19

“So long as the agent intends, for discriminatory reasons, that the adverse action
occur, he has the scienter required to be liable under USERRA,” and his act can be
considered a proximate cause of the adverse action. Id. at 1192. The unbiased
decisionmaker’s exercise of judgment does not sever this proximate cause but
merely adds the decisionmaker’s involvement as another proximate cause. Id.
Nor, under Staub, does the unbiased decisionmaker’s independent
investigation necessarily preclude the supervisor’s biased input from being a
proximate cause of the adverse employment action. “[T]he supervisor’s biased
report may remain a causal factor if the independent investigation takes it into
account without determining that the adverse action was, apart from the
supervisor’s recommendation, entirely justified.” 131 S. Ct. at 1193.
While Staub involved USERRA, the Supreme Court noted that Title VII
also utilizes a “motivating factor” standard of causation. 131 S. Ct. at 1191. The
Eleventh Circuit has employed the Staub standard in the Title VII context. King v.
Volunteers of America, Inc., 502 Fed. Appx. 823, 828 (11th Cir. 2012). But it has
declined to extend Staub to the ADEA context, because that statute requires “butfor” causation. Sims v. MVM, Inc., 704 F.3d 1327, 1335-36 (11th Cir. 2013).
In the First Amendment context, the Eleventh Circuit equates “substantial
part” with “motivating factor.” E.g., Carter v. City of Melbourne, 731 F.3d 1161,
1168 (11th Cir. 2013); Walden v. Centers for Disease Control and Prevention, 669
F.3d 1277, 1286 (11th Cir. 2012). This terminology traces back to the seminal
First Amendment retaliation case of Mt. Healthy City School District Board of
Education v. Doyle, 429 U.S. 274 (1977), in which the Supreme Court expressly
equated “substantial factor” with “motivating factor.” Id. at 287.
The defendants do not deny that cat’s paw theory applies in the First
Amendment context but assert only that the plaintiff cannot satisfy it because the
grievance committee performed an independent investigation. (Doc. 45 at 10-11).
The Court therefore assumes that the Eleventh Circuit does or would permit this
theory to be raised in the First Amendment context. Because First Amendment
20

jurisprudence implicates only a “motivating factor” standard of causation, the
Court further assumes that the Staub variant of cat’s paw theory applies in the First
Amendment context.
Without acknowledging Staub, the defendants assert that “[n]ot one
Grievance Committee member states any reliance on the alleged testimony of
Chief Hudson.” (Doc. 45 at 4). Quite so, but they have neither denied having
taken Hudson’s testimony or recommendation into account nor stated that
termination was entirely justified apart from his testimony and recommendation.13
Absent such evidence, the defendants have failed to show the plaintiff’s inability
to establish that Hudson played a substantial part in the termination decision under
the Staub variant of cat’s paw theory.
D. Same Decision.
The question is whether the plaintiff would have been terminated had he
not engaged in protected speech by complaining about Hudson and Hamilton.
Battle, 468 F.3d at 760. The defendants do not address this question. Instead,
they address whether the plaintiff would have been terminated had he not actually
been guilty of misconduct in connection with the television incident. (Doc. 35 at
22; Doc. 45 at 11).
Even had the defendants properly addressed the issue, they could not obtain
summary judgment on this ground. As discussed in Part I.C.3, the defendants
have failed to show that the grievance committee either did not consider Hudson’s
testimony or that they would have reached the same decision without his
testimony.

13

On the contrary, each committee member testified that he or she “based my
decision to vote to recommend termination on the evidence during the hearing.” (Doc.
34, Exhibits E-G). That evidence, of course, included Hudson’s testimony.
21

E. Defendants’ Liability.
Because, as discussed in Part I.C.2, the plaintiff cannot create a jury issue
as to whether Hudson acted with a retaliatory motive, all defendants are entitled to
summary judgment on his First Amendment claim. Even had the plaintiff created
such a jury issue, his claim would fail almost entirely for reasons that appear
below.
1. Hamilton.
The plaintiff believes that Hamilton acted as Hudson’s “accomplice” by
coaxing the complainant to file charges against the plaintiff and by generally
agreeing with whatever Hudson does. (Plaintiff Deposition at 243). Hamilton,
however, has presented uncontroverted evidence that he did not encourage the
complainant to come forward. (Hamilton Affidavit, ¶¶ 5-7). Nor has the plaintiff
identified any authority for the proposition that “agreeing” with an alleged
retaliator makes one liable for the other’s retaliation. Without evidence or
argument that he harbored a retaliatory motive, that he played any role in the
decision to terminate the plaintiff, or that he is legally responsible for any role
played by Hudson, the plaintiff cannot possibly maintain a First Amendment claim
against Hamilton. The defendants pointed this out, (Doc. 35 at 20), and the
plaintiff responded with silence.
2. The City.
a. Custom or policy.
The plaintiff brings his constitutional claims, as he must, through the
vehicle of Section 1983. (Doc. 19 at 4-6). “A municipality may not be held liable
under section 1983 on a theory of respondeat superior.” Snow ex rel. Snow v. City
of Citronelle, 420 F.3d 1262, 1270 (11th Cir. 2005). “Instead, to impose section
1983 liability on a municipality, a plaintiff must show: (1) that his constitutional
rights were violated; (2) that the municipality has a custom or policy that
22

constituted deliberate indifference to that constitutional right; and (3) that the
policy or custom caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289
(11th Cir. 2004). “A policy is a decision that is officially adopted by the
municipality, or created by an official of such rank that he or she could be said to
be acting on behalf of the municipality …. A custom is a practice that is so settled
and permanent that it takes on the force of law.” GeorgiaCarry.Org, Inc. v.
Georgia, 687 F.3d 1244, 1254 n.17 (11th Cir. 2012) (internal quotes omitted).
The defendants first suggest the amended complaint is defective for failure
to allege facts supporting the existence of a relevant custom or policy. (Doc. 35 at
9). This argument fails for reasons set forth in Part II.
The defendants also assert the plaintiff has no evidence with which to
establish a custom or policy of retaliation for the exercise of First Amendment
rights. (Doc. 35 at 10-11). The plaintiff responds that “municipal liability may be
imposed for a single decision by municipal policymakers,” and he insists that
Hudson constitutes such a policymaker. (Doc. 42 at 17). It is true that
“[m]unicipal liability may arise with regards to an employment decision, such as
termination ….” Quinn v. Monroe County, 330 F.3d 1320, 1325 (11th Cir. 2003).
However, “[m]unicipal liability attaches only where the decisionmaker possesses
final authority to establish municipal policy with respect to the action ordered.”
Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986); accord Doe v. School
Board of Broward County, 604 F.3d 1248, 1264 (11th Cir. 2010). The plaintiff
says Hudson had “final authority” to terminate him, (Doc. 42 at 17), but he plainly
did not.
“[F]inal policymaking authority over a particular subject matter does not
vest in an official whose decisions are subject to meaningful administrative
review.” Doe, 604 F.3d at 1264 (internal quotes omitted). When a superior “has
the authority to veto [a] recommendation, this decision [of the subordinate] [i]s
subject to meaningful administrative review …, and [the subordinate] [i]s not a
final policymaker that can subject the [entity] to § 1983 municipal liability.” Id. at
23

1265. While Hudson could (and did) recommend termination, the plaintiff was
not terminated until the city council voted to accept the grievance committee’s
recommendation. Moreover, the grievance committee subjected Hudson’s
recommendation to meaningful administrative review by holding a hearing and
receiving testimony from the plaintiff, the complainant and Hudson. As a matter
of law, Hudson is not a “final policymaker” whose recommendation of
termination, even if the product of retaliatory bias, could support municipal
liability.
b. Cat’s paw.
The plaintiff also argues that municipal liability attaches under a cat’s paw
theory. (Doc. 42 at 17-18). As discussed in Part I.C.3, he does not fare well under
a traditional cat’s paw paradigm but, if the Staub variant applies in the First
Amendment context, the plaintiff might successfully utilize it to establish a causal
connection between Hudson’s recommendation and the plaintiff’s termination.
Whatever the applicability of cat’s paw theory in determining causation, however,
the Court concludes that it has no place in determining the separate question of
municipal liability.14
The Seventh Circuit has expressed skepticism about the plaintiff’s position,
noting that “[i]mputing a nondecisionmaker’s motive to a municipal employer
sounds a lot like respondeat superior liability,” which cannot form the basis of
municipal liability. Waters v. City of Chicago, 580 F.3d 575, 586 n.2 (7th Cir.
2009). And the Sixth Circuit has declared that “Plaintiff’s argument that Schuck
exercises final authority, because the Board allegedly ‘rubber-stamps’ his
recommendations is contrary” to Supreme Court precedent. Hull v. Cuyahoga
14

As Staub holds, the successful invocation of cat’s paw theory would effectively
establish the liability of a private employer, based on concepts of agency and proximate
cause. 131 S. Ct. at 1192, 1194. However, as discussed in text, the liability of a
municipal employer requires additional findings.

24

Valley Joint Vocational School District Board of Education, 926 F.2d 505, 515
(6th Cir. 1991).15
The Court agrees with these opinions. The Supreme Court and the
Eleventh Circuit have already established the parameters of municipal liability, the
salient features of which have been described above. A cat’s paw theory that
permitted a city to be liable for the retaliatory recommendation or testimony of a
subordinate who lacked final authority to make the employment decision and
whose recommendation was subject to veto and meaningful administrative review,
simply because the city relied in part (or even entirely) on the recommendation or
testimony of that subordinate in reaching its decision, would flatly contradict the
established standard. Even if it believed such an approach to be appropriate or
desirable, the Court is without authority to abandon controlling precedent in favor
of a cat’s paw theory.
The Waters Court noted the complete lack of judicial authority for
“awkwardly fit[ting] the cat’s paw concept in this area of civil rights.” 580 F.3d at
586 n.2. This Court will not be the first to approve the device as a basis for
municipal liability.
3. Hudson.
15

See also Perzynski v. Cerro Gordo County, 953 F. Supp. 2d 916, 930 & n.4
(N.D. Iowa 2013) (use of cat’s paw theory to establish a county’s liability is not “legally
viable”), aff’d, 2014 WL 904193 (8th Cir. 2014); Jackson v. City of Centreville, 899 F.
Supp. 2d 1209, 1222 (N.D. Ala. 2012) (because municipal liability cannot be based on
respondeat superior or vicarious liability, “the cat’s paw theory does not apply in the §
1983 context.”) (internal quotes omitted); Files v. DeKalb County School District, 2012
WL 716055 at *4 (N.D. Ga. 2012) (same); Manuele v. City of Jennings, 2012 WL
113538 at *10 (E.D. Mo. 2012) (“The Court agrees that cat’s paw liability does not apply
to municipalities, which cannot be held liable on agency principles.”); Nichols v.
Schilling, 2011 WL 1630981 at *11 n.30 (E.D. Wis. 2011) (“[T]he court is constrained
by the case law to similarly find that the cat’s paw theory is not a viable means to find a
municipality liable for its employee’s conduct.”); Sebastian v. City of Chicago, 2008 WL
2875255 at *38 (N.D. Ill. 2008) (prior to Waters, rejecting municipal liability based on
cat’s paw analysis).

25

a. Causation.
The defendants begin by insisting that, because Hudson only recommended
the plaintiff’s termination, he cannot have caused the termination so as to be
exposed to personal liability. (Doc. 35 at 13; Doc. 45 at 13-14). They offer no
analysis or legal authority in support, which omission is sufficient on its own to
require rejection of their position. However, the Court notes that, as discussed in
Part I.C.3, the defendants have failed to show the plaintiff’s inability under Staub
to establish that Hudson’s recommendation and/or testimony was a proximate
cause of the plaintiff’s termination.16
b. Qualified immunity.
Hudson’s primary focus is on qualified immunity. (Doc. 35 at 11-13).
“[G]overnment officials performing discretionary functions generally are shielded
16

The Court is aware of the Eleventh Circuit’s suggestion that: (1) only an
“official decisionmaker” can be individually liable under Section 1983; (2) that only one
with the power to terminate (not merely to recommend termination) can be an official
decisionmaker; and (3) that there can be no individual liability even if the official
decisionmaker merely “rubber stamps” the individual’s retaliatory recommendation of
termination. See Kamensky v. Dean, 148 Fed. Appx. 878, 879-80 (11th Cir. 2005).
“Unpublished opinions [such as Kamensky] are not controlling authority and are
persuasive only insofar as their legal analysis warrants.” Bonilla v. Baker Concrete
Construction, Inc., 487 F.3d 1340, 1345 n.7 (11th Cir. 2007). Kamensky relied on Quinn
for its first two propositions but, with respect to the third, stated only that the Eleventh
Circuit “ha[s] not extended this [cat’s paw] line of cases to individual liability, and [we]
refrain from doing so here.” 148 Fed. Appx. at 880. This is not a rejection of the
principle and certainly not a reasoned rejection. Nor is it clear that Kamensky’s result
could survive Staub, which teaches that, in a “motivating factor” scheme, a biased
employee’s input proximately causes the adverse action unless the decisionmaker seals
off the biased input from affecting its decision. Because, unlike with municipal liability,
there are no additional requirements beyond causation for individual liability under
Section 1983, the employee’s retaliatory input in such a situation should suffice to
establish his individual liability. Finally, “[t]here is also precedent from five other
circuits for imposing individual liability on the unlawfully motivated subordinate (the
monkey, in the cat’s paw fable) under § 1983.” Smith v. Bray, 681 F.3d 888, 899 (7th Cir.
2012). The Court thus does not find Kamensky persuasive and declines to follow it,
especially as the defendants have not invoked it.
26

from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
“[T]he burden is first on the defendant to establish that the allegedly
unconstitutional conduct occurred while he was acting within the scope of his
discretionary authority.” Harbert International, Inc. v. James, 157 F.3d 1271,
1281 (11th Cir. 1998). The burden then shifts to the plaintiff to show that the
defendant’s conduct “violated a clearly established statutory or constitutional
right.” Grayden v. Rhodes, 345 F.3d 1225, 1231 (11th Cir. 2003).
(i) Discretionary authority.
“[T]he burden is first on the defendant to establish that the allegedly
unconstitutional conduct occurred while he was acting within the scope of his
discretionary authority. ... If, and only if, the defendant does that will the burden
shift to the plaintiff to establish that the defendant violated clearly established
law.” Harbert International, 157 F.3d at 1281 (emphasis added). The reason is
that an official acting outside the scope of his discretionary authority “ceases to act
as a government official and instead acts on his own behalf,” so that “the policies
underlying the doctrine of qualified immunity no longer support its application.”
Id.
For purposes of federal qualified immunity analysis, a defendant acts
within his discretionary authority when “his actions were undertaken pursuant to
the performance of his duties and within the scope of his authority.” Rich v.
Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988) (internal quotes omitted). For this
inquiry, “[w]e ask whether the government employee was (a) performing a
legitimate job-related function (that is, pursuing a job-related goal), (b) through
means that were within his power to utilize.” Holloman ex rel. Holloman v.
Harland, 370 F.3d 1252, 1265 (11th Cir. 2004).

27

The first prong of this test requires that the defendant “have been
performing a function that, but for the alleged unconstitutional infirmity, would
have fallen within his legitimate job description.” Holloman, 370 F.3d at 1266
(emphasis omitted). “The inquiry is not whether it was within the defendant’s
authority to commit the allegedly illegal act,” but “whether the act complained of,
if done for a proper purpose, would be within, or reasonably related to, the outer
perimeter of an official’s discretionary duties.” Harbert International, 157 F.3d at
1282 (internal quotes omitted).17
As for the second prong, “[e]ach government employee is given only a
certain ‘arsenal’ of powers with which to accomplish her goals.” Holloman, 370
F.3d at 1267. “Pursuing a job-related goal through means that fall outside the
range of discretion that comes with an employee’s job is not protected by qualified
immunity.” Id.
Investigating police misconduct and recommending termination of police
officers fall within an Alabama police chief’s discretionary authority. See Grider
v. City of Auburn, 618 F.3d 1240, 1267-68 (11th Cir. 2010); Barnette v. Folmar, 64
F.3d 598, 600 (11th Cir. 1995); Hardy v. City of Hayneville, 50 F. Supp. 2d 1176,
1189 (M.D. Ala. 1999). When a plaintiff does not dispute that the defendant was
acting within his discretionary authority, the Eleventh Circuit proceeds directly to
whether the defendant’s conduct violated the plaintiff’s clearly established right.
E.g., Franklin v. Curry, 738 F.3d 1246, 1249 (11th Cir. 2013); Gilmore v. Hodges,
738 F.3d 266, 272 (11th Cir. 2013). As the plaintiff does not dispute that Hudson
acted within his discretionary authority, (Doc. 42 at 18-22), the Court proceeds to
the next question.
(ii) Clearly established constitutional right.
17

For example, the issue is not whether a marshal has the authority to deliver a
prisoner into unconstitutional conditions but whether he has the authority to transport and
deliver prisoners. Harbert International, 157 F.3d at 1282 (describing Jordan v. Doe, 38
F.3d 1559, 1566 (11th Cir. 1994)).
28

Because Hudson has carried his threshold burden, the burden shifts to the
plaintiff to show that Hudson’s conduct “violated a clearly established statutory or
constitutional right.” Grayden, 345 F.3d at 1231. The inquiry may be broken
down into two parts: (1) whether the facts alleged, if true, would establish a
violation of the plaintiff’s rights; and (2) whether those rights were clearly
established at the time of the alleged deprivation. Id. As discussed in Part I.C.2,
the plaintiff cannot establish a constitutional violation. The Court proceeds in
order to demonstrate that, even could the plaintiff establish a constitutional
violation, Hudson would be entitled to qualified immunity.
To be clearly established, “pre-existing law must dictate, that is truly
compel (not just suggest or allow or raise a question about), the conclusion for
every like situated reasonable government agent that what the defendant is doing
violates federal law in the circumstances.” Lassiter v. Alabama A&M University,
28 F.3d 1146, 1150 (11th Cir. 1994) (en banc). “The relevant, dispositive inquiry
in determining whether a right is clearly established is whether it would be clear to
a reasonable officer that his conduct was unlawful in the situation he confronted.”
Saucier v. Katz, 533 U.S. 194, 202 (2001). In making this inquiry, “the salient
question … is whether the state of the law … gave the [defendants] fair warning
that their alleged [conduct] was unconstitutional.” Hope v. Pelzer, 536 U.S. 730,
741 (2002).
The plaintiff’s only argument against qualified immunity is the unhelpful
observation that “it is clearly established that a public employer may not retaliate
against an employee for an employee’s exercise of constitutionally protected
speech.” (Doc. 42 at 22). That formulation overlooks the foundational question of
whether it was clearly established in June 2012 that the speech in which the
plaintiff engaged was constitutionally protected. E.g., Hansen v. Soldenwagner,
19 F.3d 573, 575 (11th Cir. 1994). That of course depends on whether it was
clearly established both that the plaintiff spoke on a matter of public concern and
that his interest in speaking outweighed the City’s interest in prohibiting his
29

speech. As discussed in Parts I.A and I.B, each of those issues depends on the
resolution of a case-specific factor analysis.
The plaintiff is correct that Hudson needed only “fair warning” that his
conduct was unconstitutional, (Doc. 42 at 19-20), but he has made little effort to
demonstrate that this standard is satisfied. He simply notes that reporting
government misconduct is a core concern of the First Amendment, (id. at 21-22),
while ignoring that even core public speech may be deemed private depending on
the context in which the speech is made and the motivation of the speaker, and he
further ignores the factors relevant to the Pickering balance.
The Court does not rule that the plaintiff could not have presented a
persuasive argument concerning qualified immunity, only that he has not done so.
Whatever pitch might have been made in that regard, the plaintiff has not
advanced it, and the Court will not raise or support arguments on his
behalf.
“Because qualified immunity is only a defense to personal liability for
monetary awards resulting from government officials performing discretionary
functions, qualified immunity may not be effectively asserted as a defense to a
claim for declaratory or injunctive relief.” Ratliff v. DeKalb County, 62 F.3d 338,
340 n.4 (11th Cir. 1995). The amended complaint seeks both declaratory and
injunctive relief from Hudson. (Doc. 19 at 7-8). Hudson’s qualified immunity
does not insulate him from exposure to these non-monetary forms of relief.
F. Summary.
The plaintiff’s First Amendment claim fails because he is unable to create a
jury issue as to whether Hudson recommended his termination, or offered
testimony at his pre-disciplinary hearing, based on a retaliatory motive. Even had
the plaintiff created such a jury issue, his claim would fail as to each defendant
(except as to Hudson for equitable relief) for the reasons set forth in Part I.E.

30

II. Equal Protection.
The defendants assume the plaintiff has legally “abandoned” this claim by
not addressing it in his brief in opposition to summary judgment. (Doc. 45 at 1).
As the Court has frequently observed, that is not the law. E.g., Whitt v. Baldwin
County Mental Health Center, 2013 WL 6511856 at *3 n.6 (S.D. Ala. 2013).
“[S]ummary judgment cannot be granted by default.” Fed. R. Civ. P. 56 advisory
committee notes to 2010 amendments to Rule 56(e). “[T]he district court cannot
base the entry of summary judgment on the mere fact that the motion was
unopposed, but, rather, must consider the merits of the motion.” United States v.
One Piece of Real Property, 363 F.3d 1099, 1101 (11th Cir. 2004); accord Howard
v. Gee, 538 Fed. Appx. 884, 891 (11th Cir. 2013).18
The defendants next argue this claim should be dismissed because the
plaintiff “does not plead with the required specificity.” (Doc. 36 at 22). But the
defendants’ motion invokes only Rule 56, which is not a rule of pleading. Relief
under Rule 56 – which is all the defendants have requested – is proper only when
“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). The defendant cannot utilize
Rule 56 to challenge a perceived pleading deficiency.
While most equal protection challenges are brought based on membership
in a protected category, such a challenge may also be brought by a “class of one,”
when “the plaintiff alleges that she has been intentionally treated differently from
others similarly situated and that there is no rational basis for the difference in
treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
However, and as the defendants note, (Doc. 35 at 23), “such a ‘class-of-one’

18

The defendants appear to believe that Coalition for the Abolition of Marijuana
Prohibition v. City of Atlanta, 219 F.3d 1301 (11th Cir. 2000), and Lyes v. City of Riviera
Beach, 126 F.3d 1380 (11th Cir. 1997), support their position. As the Court has explained
in previous opinions, neither does so. E.g., Gailes v. Marengo County Sheriff’s
Department, 916 F. Supp. 2d 1238, 1241-42 (S.D. Ala. 2013); Mariano v. Potter, 2006
WL 907772 at *9 n.15 (S.D. Ala. 2006).
31

theory of equal protection has no place in the public employment context.”
Engquist v. Oregon Department of Agriculture, 553 U.S. 591, 594 (2008). The
plaintiff therefore can pursue only an equal protection claim based on his
membership in a protected category.
The defendants suggest that, because the amended complaint does not
allege that the plaintiff is a member of a protected class, he cannot pursue a claim
based on such membership and thus can pursue no equal protection claim at all.
(Doc. 35 at 23). The defendants cite no authority for this unusual proposition,
which the Court accordingly declines to credit.19
The defendants next assert that the plaintiff’s equal protection claim is
“nothing more than a restatement of [his] First Amendment claim.” (Doc. 35 at
23). But the single case on which they rely says only that, when an equal
protection claim alleges the plaintiff was retaliated against “because of her
expressive activity, that claim arises under the First Amendment.” Watkins v.
Bowden, 105 F.3d 1344, 1354 (11th Cir. 1997). The defendants have done nothing
to show that the plaintiff’s equal protection claim is simply that he was treated
differently from persons who did not engage in protected speech (as opposed to,
say, that he was treated differently from persons not sharing his race or gender).
The amended complaint does not identify the respects as to which the
plaintiff claims he was treated less favorably than others. The defendants identify
these respects as involving: (1) termination; (2) promotion; (3) vehicle; (4)
uniform allotment; (5) continuing education; and (6) back-up assistance. (Doc. 35
at 6-7). The deposition excerpts to which the defendants cite do not fully support

19

In a related vein, the defendants complain that the plaintiff “provides no factual
basis” for asserting he is in a protected category. (Doc. 35 at 8). The defendants cite
nothing reflecting that they asked the plaintiff to identify the protected categories on
which he bases his equal protection claim and that he was unable or unwilling to do so,
and they cannot convert gaps in their discovery efforts into grounds for a successful
motion for summary judgment.
32

this listing, nor do they limit the plaintiff’s claim to these particulars.
Nevertheless, the Court considers them.
As to these particulars, the defendants argue that the plaintiff “can present
no evidence that he was treated less favorably than similarly situated employees.”
(Doc. 35 at 23-24). To the extent the plaintiff bases his equal protection claim on
assertions he was treated less favorably with respect to promotion and continuing
education, the defendants are correct. Hudson has testified he promoted the bestqualified person, (Hudson Affidavit, ¶ 19), and the plaintiff does not assert he was
equally or better qualified than the successful applicant. (Plaintiff Deposition at
174-75). As to continuing education, the plaintiff complains only that he had to
find courses on his own. (Id. at 259-61). Hudson has testified that all officers had
to find courses on their own, (Hudson Affidavit, ¶ 11), and the plaintiff admits he
has no evidence to the contrary. (Plaintiff Deposition at 261).
As to the remaining particulars, the defendants have not carried their initial
burden on motion for summary judgment. Hudson testified that the plaintiff’s
vehicle was “the equivalent of anyone else’s,” (Hudson Affidavit, ¶ 10), but the
plaintiff testified that his was older than those of other officers. (Plaintiff
Deposition at 253-54). Hudson testified that all officers got the same uniform
allotment, (Hudson Affidavit, ¶ 9),20 but the plaintiff testified that others received
more. (Plaintiff Deposition at 257-58).21 Hudson’s testimony thus does no more
than set up a conflict in the evidence, which cannot be resolved on motion for
summary judgment. With respect to the failure to provide back-up assistance,
Hudson testified only that he is unaware of any such incident, (Hudson Affidavit,
20

The maximum annual allotment was $350. (Hudson Affidavit, ¶ 9). The
plaintiff denies receiving an allotment for 2011 or 2012, (Plaintiff Deposition at 258), so
his maximum loss is $700.
21

The defendants assert that the plaintiff stated he “does not know whether other
officers got their allotment.” (Doc. 35 at 7). In fact, he stated only that he did not “know
of any other officers that didn’t get their allotment.” (Plaintiff Deposition at 259
(emphasis added)).

33

¶ 12), which fails even to create a conflict in the evidence. Finally, the defendants
do not identify evidence that could preclude the plaintiff from showing that
similarly situated employees have not been terminated. (Doc. 35 at 6).22
The defendants expressly limit their challenge to municipal liability to the
plaintiff’s First Amendment and due process claims. (Doc. 35 at 10-11).
Therefore, no question of municipal liability vel non is before the Court with
respect to the equal protection claim.
In contrast, Hudson and Hamilton invoke qualified immunity “for any
federal claim brought against them.” (Doc. 33 at 4). The authorities cited in Part
I.D.3.b(i) establish that they acted within their discretionary authority with respect
to the particulars of the plaintiff’s equal protection claim, a conclusion bolstered
by the plaintiff’s failure to dispute that they did so. The plaintiff makes no effort
to carry his burden to show it was clearly established in 2012 that the individual
defendants’ conduct violated clearly established constitutional law, and the Court
will not intercede on his behalf.
In summary, the defendants are entitled to summary judgment on the
plaintiff’s equal protection claim to the extent that claim is based on a class-of-one
theory and to the extent based on unequal treatment concerning promotion or
continuing education. In addition, Hudson and Hamilton are entitled to summary
judgment to the extent the plaintiff seeks monetary relief from them under this
claim. In all other respects, the defendants are not entitled to summary judgment.
III. Due Process.
The defendants first repeat their arguments that the plaintiff abandoned this
claim by not responding to their motion and that the claim was inadequately

22

The defendants assume the plaintiff’s only comparators concerning termination
are the other officers associated with the television incident. (Doc. 35 at 6). But the
deposition testimony to which the defendants cite addresses the plaintiff’s due process
claim, not his equal protection claim. (Plaintiff Deposition at 271).
34

pleaded. (Doc. 35 at 22; Doc. 45 at 1). These arguments fail for reasons set forth
in Part II.
The plaintiff limits this claim to the procedures surrounding his
termination, including the failure to comply with certain unspecified stateprescribed procedures. (Plaintiff Deposition at 271-73). The defendants respond
that due process requires no more than notice and an opportunity to be heard and
that the plaintiff was provided both. (Doc. 35 at 24-25). As the defendants
suggest, the violation of state procedures does not of itself support a federal due
process claim; it is only when the violation of those procedures also constitutes a
failure to provide notice and an opportunity to be heard (the federal constitutional
lodestars) that a due process claim will arise. E.g., American Civil Liberties
Union, Inc. v. Miami-Dade County School Board, 557 F.3d 1177, 1229 (11th Cir.
2009); Harris v. Birmingham Board of Education, 817 F.2d 1525, 1527-28 (11th
Cir. 1987). Because it is uncontroverted that the plaintiff received notice and an
opportunity to be heard,23 he cannot base his due process claim on a failure to
comply with state procedures.
The plaintiff, however, makes a second objection, complaining that the
grievance committee was “a biased group.” (Plaintiff Deposition at 271-73).
Because, “in the case of an employment termination case, due process [does not]
require the state to provide an impartial decisionmaker at the pre-termination
hearing,” it follows that “[a] demonstration that the decisionmaker was biased …
is not tantamount to a demonstration that there has been a denial of procedural due
process.” McKinney v. Pate, 20 F.3d 1550, 1562 (11th Cir. 1994) (en banc)
(internal quotes omitted). However, “the state’s refusal to provide a means to
correct any error resulting from the bias would engender a procedural due process
violation.” Id. at 1563. Because the defendants have not addressed the plaintiff’s
assertion of bias, they cannot obtain summary judgment on the merits of the due
process claim.
23

(Cooke Affidavit, Exhibits 1-4; Plaintiff Deposition at 186-87, 245-46).
35

The defendants point out that the plaintiff has no evidence the City has a
custom or policy of denying employees due process in pre-disciplinary hearings.
(Doc. 35 at 10-11). Because the plaintiff identifies no such evidence, (Doc. 42 at
16-18), he cannot establish municipal liability, and the City is entitled to summary
judgment.
The Court has been cited no evidence that the individual defendants had
anything to do with the creation, composition or bias of the grievance committee.
However, Hudson and Hamilton do not seek summary judgment on that ground;
instead, they re-assert qualified immunity. Because they have made no effort to
show that any involvement they may have had in the creation, composition or bias
of the grievance committee fell within their discretionary authority, their argument
fails.
In summary, the City is entitled to summary judgment on the plaintiff’s due
process claim, and Hudson and Hamilton are entitled to summary judgment on
that claim to the extent based on anything other than a biased grievance
committee.
IV. Outrage.
“The four elements of the tort of intentional infliction of emotional distress,
which is also known as the tort of outrage, are: (1) the actor intended to inflict
emotional distress, or knew or should have known that emotional distress was
likely to result from his conduct; (2) the conduct was extreme and outrageous; (3)
the defendant’s actions caused the plaintiff distress; and (4) the distress was
severe.” Martin v. Hodges Chapel, LLC, 89 So. 3d 756, 763 (Ala. Civ. App.
2011) (internal quotes omitted). The defendants confine their attack to the second
element. (Doc. 35 at 29-30).
“By extreme we refer to conduct so outrageous in character and so extreme
in degree as to go beyond all possible bounds of decency, and to be regarded as
atrocious and utterly intolerable in a civilized society.” Horne v. TGM Associates,
36

L.P., 56 So. 3d 615, 630 (Ala. 2010) (internal quotes omitted). “Recovery of
damages for the tort of outrage is limited to the most reprehensible situations.”
State Farm Automobile Insurance Co. v. Morris, 612 So. 2d 440, 443 (Ala. 1993)
(internal quotes omitted). “This Court has consistently held that the tort of outrage
is a very limited cause of action that is available only in the most egregious
circumstances.” Thomas v. BSE Industrial Contractors, Inc., 624 So. 2d 1041,
1044 (Ala. 1993).
Indeed, “[t]he tort of outrage … is so limited that this Court has recognized
it in regard to only three kinds of conduct: (1) wrongful conduct in the familyburial context [citation omitted]; (2) barbaric methods employed to coerce an
insurance settlement [citation omitted]; and (3) egregious sexual harassment
[citation omitted].” O’Rear v. B.H., 69 So. 3d 106, 118 (Ala. 2011) (internal
quotes omitted). To say that the tort is “extremely limited” is “not to say,
however, that the tort of outrage is viable in only the three circumstances noted”
above. Ex parte Bole, 103 So. 3d 40, 52 (Ala. 2012) (internal quotes omitted).
The amended complaint limits the basis of the plaintiff’s outrage claim to
“[t]he conduct of Defendants Hudson and Hamilton as supervisory employees, as
set out above.” (Doc. 19 at 6). Their conduct as supervisory employees vis-à-vis
the plaintiff, as set out in the amended complaint, is that, in retaliation for his
exercise of First Amendment rights, they assigned him faulty equipment (which
the plaintiff in deposition limited to his vehicle), took away his investigator’s
badge, refused his request for new uniforms, refused assistance with obtaining
continuing education, and recommended his termination. (Id. at 3). The
defendants argue that such conduct in the employment context is not extreme and
outrageous. (Doc. 35 at 30). The plaintiff offers no response.24

24

In his opposition to the motion for summary judgment on the state claims, the
plaintiff addresses only the defendants’ invocation of various immunities. (Doc. 42 at
23-27).
37

As discussed in Part I.C.2, the plaintiff cannot prove that Hudson retaliated
against him by recommending his termination or by testifying at his predisciplinary hearing. As discussed in Part I.A.3, it is uncontroverted that Hudson
did not retaliate against the plaintiff by moving him from investigations to patrol
but simply acceded to a judge’s request. As discussed in Part II, it is
uncontroverted that Hudson treated the plaintiff equally with all other officers with
respect to continuing education. The plaintiff thus cannot rely on such incidents to
support his outrage claim.
The only incidents of retaliation alleged in the amended complaint as to
which it remains possible for the plaintiff to prove a retaliatory motive (and thus
support an outrage claim) are (a) furnishing the plaintiff an older vehicle than
other officers; and (b) withholding no more than $700 of uniform allowance that
other officers received. See Part II, supra. Even if the plaintiff was treated
differently in these respects based on retaliation for exercising his First
Amendment rights, the defendants’ conduct as a matter of law does not rise to the
level necessary to support an outrage claim.
“[W]hile the conduct alleged in [the plaintiff’s] affidavit may amount to an
assault, or to a violation of her [Fourth Amendment] constitutional rights, it does
not follow that the same conduct necessarily constitutes extreme and outrageous
conduct sufficient to support an action for intentional infliction of emotional
distress.” Newton v. Town of Columbia, 695 So. 2d 1213, 1218 (Ala. Civ. App.
1997). More specifically, “[f]ailing to hire someone in retaliation for protected
speech does not go beyond all possible bounds of decency such that it should be
regarded as atrocious and utterly intolerable in a civilized society.” Camp v.
Correctional Medical Services, Inc., 668 F. Supp. 2d 1338, 1365 (M.D. Ala. 2009)
(internal quotes omitted).
Construing Alabama law, the Court has concluded that, “[w]here a plaintiff
complains that her discharge contravenes public policy, particularly if the
discharge was the culmination of a protracted pattern of discrimination in violation
38

of public policy, she may properly pursue a claim of outrage because the violation
of public policy furnishes the requisite sound of fury to accompany the
termination.” Lees v. Sea Breeze Health Care Center, Inc., 391 F. Supp. 2d 1103,
1107 (S.D. Ala. 2005) (internal quotes omitted). As the Court noted, however,
“[t]his line of authority may be contrasted with, and limited by, another strand of
caselaw suggesting that being subjected to unlawful discrimination over an
abbreviated time period, or facing unlawful conduct falling short of discharge,
may be inadequate to sustain a claim for outrage under Alabama law, even if the
employer’s acts otherwise are irreconcilable with sound public policy.” Id. at
1107 n.3.
The plaintiff’s outrage claim cannot be based on his termination, since he
has no evidence of an underlying retaliatory motive. Being assigned an older
vehicle and missing out on $700 of uniform assistance, even if based on a
retaliatory motive, is “unlawful conduct falling short of discharge” and so will not
support an outrage claim even if retaliation for the exercise of First Amendment
rights “contravenes public policy” within the contemplation of Alabama law
concerning the tort of outrage.
Alabama law “does not recognize recovery for mere insults, indignities,
threats, annoyances, petty oppressions, or other trivialities.” Ex parte Bole, 103
So. 3d at 52 (internal quotes omitted). In Mooney v. Henderson and Walton
Women’s Center-East, Inc., 684 So. 2d 1340 (Ala. Civ. App. 1996), the plaintiff
doctors’ contract with the defendant medical practice allowed them to continue in
the practice for 90 days after giving notice of intent to terminate. In violation of
the contract, when the plaintiffs gave notice the defendant immediately deemed
the contract ended, refused to let the plaintiffs see patients, escorted them out of
the office, forced them to remove their furniture as patients watched, and told
patients the plaintiffs were unavailable. Id. at 1342-44. The appellate court held
that this conduct “amounts to mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities.” Id. at 1344. In light of Mooney, being assigned
39

an older vehicle and being denied $700 in uniform assistance, however
inappropriate, cannot rise to the level of actionable, extreme and outrageous
conduct, beyond all possible bounds of decency and utterly intolerable in a
civilized society. For want of such conduct, the plaintiff’s claim must fail.
V. Negligent Employment.
Count Four alleges that the City tortiously retained, supervised and failed to
train Hudson and Hamilton “on violating an individual’s right to free speech.”
(Doc. 19 at 7). The defendants argue that no such claim can be maintained
without “ a finding of an underlying tort” by Hudson or Hamilton. (Doc. 35 at
28). The plaintiff again fails to respond.
“[A] party alleging negligent supervision and hiring must prove the
underlying wrongful conduct of the defendant’s agents.” Flying J Fish Farm v.
Peoples Bank, 12 So. 3d 1185, 1196 (Ala. 2008) (internal quotes omitted). The
same is true of claims of negligent training. Bailey v. GMRI, Inc., 2005 WL
1570289 at *4 & n.12 (S.D. Ala. 2005). When the underlying claims are
dismissed on motion for summary judgment, summary judgment is likewise
required with respect to any negligent employment claim. Flying J, 12 So. 3d at
1196.
Count Four expressly limits the underlying wrong to retaliation. Only
Counts One and Three are based on retaliation and, as discussed in Parts I and IV,
the defendants are entitled to summary judgment as to both counts. The
defendants are therefore entitled to summary judgment on Count Four as well.25

25

Although Count Two survives the instant motion to some degree, it is not based
on retaliation and so is not the subject of Count Four. Even if it were, the result would be
the same because, as the Court has previously held, “the underlying conduct must
constitute a common-law, Alabama tort committed by the employee, not … a federal
cause of action such as Title VII.” Roberson v. BancorpSouth Bank, Inc., 2013 WL
3153755 at *4 (S.D. Ala. 2013) (internal quotes omitted) (citing cases).

40

CONCLUSION
For the reasons set forth above, the defendants’ motion with respect to
Counts One, Three and Four is granted. The motion with respect to the due
process aspect of Count Two is granted as to the City and is granted as to
Hudson and Hamilton to the extent based on anything other than a biased
grievance committee. The motion with respect to the equal protection aspect of
Count Two is granted to the extent based on a class-of-one theory; is granted to
the extent based on unequal treatment concerning promotion or continuing
education; and is granted as to Hudson and Hamilton to the extent the plaintiff
seeks monetary relief. In all other respects, the motion for summary judgment is
denied.26
DONE and ORDERED this 10th day of June, 2014.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

26

All that survives summary judgment is: (1) an equal protection claim against
all three defendants, based on the plaintiff’s membership in some still-unidentified
protected category, for unequal treatment concerning termination and certain terms and
conditions of employment; and (2) a due process claim against Hudson and Hamilton
based on utilization of a biased grievance committee. The difficulties with these claims
are many and obvious, and the plaintiff’s avoidance of summary judgment in these
respects is more reflective of the parties’ approach to summary judgment than of any
apparent merit to the claims. Indeed, it is not clear the plaintiff seriously advances them.

41