Galbreath v. Hale County Alabama Commission et al

Filing 109

ORDER DENYING Dfts' 80 Renewed Motion for Judgment as a Matter of Law and, Alternatively 80 Motion for New Trial as set out. Signed by Senior Judge Callie V. S. Granade on 8/8/2017. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
TRICIA GALBREATH,
Plaintiff,
vs.
HALE COUNTY, ALABAMA
COMMISSION, et al.,
Defendants.

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) CIVIL ACTION NO. 15-308-CG-N
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ORDER ON RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW
AND, ALTERNATIVELY, MOTION FOR NEW TRIAL
This matter is before the Court on a renewed motion for judgment as a
matter of law and, alternatively, motion for new trial filed by Defendants Hale
County, Alabama, Commission and Hale, County, Alabama (“Defendants”) (Doc.
80), a response in opposition filed by Plaintiff Tricia Galbreath (“Galbreath”) (Doc.
96), and a reply thereto filed by Defendants (Doc. 105).1 For the reasons explained
below, the Court finds that Defendants’ motion is to be denied.
I. BACKGROUND
This case arises out of Galbreath’s termination from the Hale County
Commission as its County Administrator. When Galbreath began her employment
Under the local rules, “[p]rincipal briefs in support of, or in opposition to, any
motion must not exceed thirty (30) pages, and reply briefs must not exceed fifteen
(15) pages.” CIV. L.R. 7(e). “No brief exceeding these page limitations may be filed
unless the Court has previously granted leave to file a brief in excess of these limits.
Both Defendants’ Motion (Doc. 80) and Galbreath’s Response (Doc. 96) significantly
exceed the thirty-page limit; however, neither party sought leave of the Court before
exceeding the limit. The Court advises the parties to abide by this rule or risk some
or all of future filings being disregarded.
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with the Hale County Commission, she was provided and signed for a copy of the
Hale County Personnel Policy (the “Policy”). Additionally, Galbreath and
Defendants executed several employment contracts throughout her term of
employment. During a county commission meeting on June 18, 2013, the Hale
County Commission voted to terminate Galbreath’s employment.
Based on her termination, Galbreath filed a multi-count complaint against
Defendants. After the Court dismissed several claims in its Summary Judgment
Order, Galbreath proceeded to trial with three claims remaining: (1) a Fourteenth
Amendment procedural due process claim; (2) a state-law breach of contract claim;
and (3) a state-law wrongful termination claim. Galbreath’s claims were tried
before a jury on March 23, 2017, through March 27, 2017. The jury returned a
verdict in Galbreath’s favor on all three claims. See (Doc. 73-1). The jury awarded
Galbreath $8,000.00 in damages for any emotional pain and mental anguish she
suffered from the date of her discharge to the date of the jury’s verdict. Id. at 5.
The jury also awarded Galbreath $128,600.00 in damages for lost wages and lost
benefits from the date of Galbreath’s discharge to the date of the jury’s verdict. Id.
Defendants now contend they are due judgment as a matter of law on all three
claims. Alternatively, Defendants argue for a new trial on their affirmative defense
of mitigation of damages, Galbreath’s breach of contract claim, and the Court’s
charge to the jury regarding Galbreath’s procedural due process claim.
II. JUDGMENT AS A MATTER OF LAW
A. The Renewed Motion for Judgment as a Matter of Law Standard

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Judgment as a matter of law under Rule 50(a) of the Federal Rules of Civil
Procedure is appropriate where “there is no legally sufficient evidentiary basis for a
reasonable jury to find for the non-moving party.” Optimum Techs., Inc. v. Henkel
Consumer Adhesives, Inc., 496 F.3d 1231, 1251 (11th Cir. 2007). In other words, a
motion for judgment as a matter of law must be denied when there is enough
evidence that reasonable minds could differ concerning material facts. U.S. Anchor
Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986, 993 (11th Cir. 1993). If the court denies a
Rule 50(a) motion, the movant may file a “renewed motion” after trial. FED. R. CIV.
P. 50(b).
The standard for deciding a Rule 50(b) motion is the same as a Rule 50(a)
motion. McGinnis v. Am. Home Mortg. Servicing, Inc., 817 F.3d 1241, 1254 (11th
Cir. 2016). Thus, the proper Rule 50(b) “analysis is squarely and narrowly focused
on the sufficiency of the evidence.” Chaney v. City of Orlando, 483 F.3d 1221, 1227
(11th Cir. 2007). In evaluating whether sufficient evidence supports a jury’s
verdict, “‘the court must evaluate all the evidence, together with any logical
inferences, in the light most favorable to the non-moving party.’” Id. (quoting
Beckwith v. City of Daytona Beach Shores, 58 F.3d 1554, 1560 (11th Cir. 1995)).
“But, an inference is not reasonable if it is only a guess or a possibility, for such an
inference is not based on the evidence but is pure conjecture and speculation.”
Carlson v. United States, 754 F.3d 1223, 1290 (11th Cir. 2014). And as the
Eleventh Circuit instructed, “‘It is the jury’s task—not [the court’s]—to weigh
conflicting evidence and inferences, and determine the credibility of witnesses.’”

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Chaney, 483 F.3d at 1227 (quoting Shannon v. Bellsouth Telecomms., Inc., 292 F.3d
712, 715 (11th Cir. 2002)). Thus, judgment as a matter of law is “cautiously and
sparingly” granted. Will v. Richardson-Merrell, Inc., 647 F. Supp. 544, 549 (S.D.
Ga. 1986).
“A motion under Rule 50(b) is not allowed unless the movant sought relief on
similar grounds under Rule 50(a) before the case was submitted to the jury.” Exxon
Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008).
B. Whether Galbreath Received Pre-termination Due Process
Defendants contend, citing Kelly v. Smith, 764 F.2d 1412 (11th Cir. 1985),
overruled on other grounds, McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994), that no
constitutional minimum amount of time exists “that an employee must be afforded
before being notified of charges, nor is there any constitutionally required minimum
amount of time that an employee must be given between being notified of the
charges and being given an opportunity to respond” in order to satisfy due process.
(Doc. 80, p. 8). In doing so, Defendants question the Court’s citation to Staples v.
City of Milwaukee, 142 F.3d 383 (7th Cir. 1998), in its summary judgment order.
(Doc. 80, p. 14).
Further, Defendants maintain, Ogburia v. Cleveland, 380 F. App’x 927 (11th
Cir. 2010), stands for the proposition that an employee need not be apprised that
the charges against her may result in immediate termination. Id. at 9. Defendants
continue, “undisputed evidence” establishes that Galbreath was properly notified
during the June 18, 2013 Hale County Commission executive session of the charges

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against her, regardless of their truth. Id. at 7, 9. Defendants insist they gave
Galbreath an opportunity to respond but she chose to remain silent. Id. These
actions, Defendants argue, establish that “the procedural requirements of pretermination due process were satisfied.” Id. at 10.
“[O]nce it is determined that the Due Process Clause applies, ‘the question
remains what process is due.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
541 (1985) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). In Mathews v.
Eldridge, 424 U.S. 319 (1976), the Supreme Court set out three considerations a
court must evaluate in determining the scope of procedural protections required by
the Constitution:
First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government’s
interest, including the function involved and the fiscal and
administrative burdens that additional or substitute procedural
requirements would entail.
Id. at 335. After balancing these factors, the Loudermill Court concluded due
process provides a public employee possessing a property interest in her
employment the following prior to termination:
The essential requirements of due process … are notice and an
opportunity to respond. The opportunity to present reasons, either in
person or in writing, why the proposed action should not be taken is a
fundamental due process requirement…. The tenured public employee
is entitled to oral or written notice of the charges against him, an
explanation of the employer’s evidence, and an opportunity to present
his side of the story.
Loudermill, 470 U.S. at 546 (citation omitted). More simply, “[t]he importance of [a]

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[public employee’s] property interest makes it necessary to provide some sort of
pretermination hearing, which includes notice and an opportunity to be heard.”
Harrison v. Willie, 132 F.3d 679, 684 (11th Cir. 1998). And although Galbreath was
not due a full evidentiary hearing or even a mini-trial, she was due a pretermination proceeding that served as “an initial check against mistaken
decisions—essentially, a determination of whether there [we]re reasonable grounds
to believe that the charges against [her were] true and support[ed] the purposed
action.” See Loudermill, 470 U.S. at 545–46.
As to Defendants’ first contention, that the Eleventh Circuit has held “on-thespot” terminations appropriate under Kelly, the Court concludes that Kelly does not
sweep as broadly as Defendants contend. In Kelly, a county worker (Kelly) and his
supervisor (Smith) disputed whether Kelly was scheduled to work standby. Kelly
was adamant that he was not scheduled to work standby and refused to do so.
Smith, however, was the individual tasked with “making the standby roster” and
knew with certainty Kelly was on the schedule. When Kelly continued in his
refusal to work standby, Smith responded that Kelly was to work standby or be
terminated. Kelly continued in his refusal and walked off the job site. Smith
terminated Kelly. Due to Kelly’s flagrant disobedience, Smith was able to
determine “whether there [were] reasonable grounds to believe that the charges
against [Kelly, refusing to work standby when scheduled to do so,] were true and
supported the proposed action.” 764 F.2d at 1414. “Under such circumstances,
there were adequate pretermination procedures to serve as ‘an initial check against

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mistaken decisions.’” Id. at 1415. In other words, because Smith was the source of
the information and deciding individual, the risk of a mistaken decision was
minimal.
The Kelly Court’s reasoning evidences that the Eleventh Circuit did not
announce a “one-size-fits-all” rule that “on-the-spot” terminations unequivocally
satisfy due process as Defendants now contend. Moreover, as opposed to this case,
the Kelly Court did not have before it a question of whether earlier notice or more
complete notice was necessary, and the undersigned is unable to identify an
Eleventh Circuit case addressing such questions. But, when the Seventh Circuit
was tasked with addressing such questions in a due process claim, it reasoned, in
relevant part:
In light of the flexibility inherent in the Supreme Court’s approach to
pretermination hearings under Loudermill, we would not want to say
that contemporaneous notice at a hearing could never satisfy due
process. Whether it does or not will depend on what has taken place
before the hearing, on the nature of the violation the employee is
charged with, and on the risk of error if the employee does not have
some advance notice of the hearing. In our case, not only was Staples
unaware that the September 5 hearing was going to be about the
fistfight incident, he affirmatively had been told that it was for an
entirely different purpose. He had no idea that his job was on the line
until Bock informed him that the police were at the door (a rather
dramatic gesture, it seems). Loudermill makes it clear that the
summary procedures that are required prior to termination are for the
purpose of guarding against an erroneous deprivation. We cannot say,
on the present record, that the procedures Bock followed met that
standard. It is worth recalling that “procedural due process rules are
shaped by the risk of error inherent in the truthfinding process as
applied to the generality of cases, not the rare exception.” Mathews v.
Eldridge, 424 U.S. 319, 344 (1976). This means that, just as we reject
demands for more process in exceptional cases, we also reject the
argument that less process is due for idiosyncratic reasons.

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Staples, 142 F.3d at 387; see also Burton v. Ala. Dep’t of Agric. & Indus., 587 F.
Supp. 2d 1220, 1229 (M.D. Ala. 2008) (finding no due process violation as to notice
of pre-disciplinary hearing, even though employee received notice late in the
afternoon on the day prior to the hearing, where “[n]othing indicates that the short
notice prevented Burton from participating in his hearing to the extent called for by
the nature of the proceeding”).
Considering Kelly and Staples, it becomes apparent that Defendants “onesize-fits-all” “on-the-spot” termination argument is unavailing. Both Kelly and
Staples make clear that, although a full-fledged trial is not required, the notice due
is tailored to the situation in order to ensure reasonable grounds exist to believe the
charges are true, prevent a mistaken decision, and allow an employee to participate
in the pre-termination proceeding. Loudermill, 470 U.S. at 546.
Applying these principles to the present case, a reasonable juror could
conclude notice was constitutionally insufficient. The commissioners were the
ultimate authority deciding Galbreath’s termination but not the source of
Galbreath’s disciplinary form. Judge Crawford was the author and source of
information in the disciplinary form. It was the intersection of the source and
authority in Kelly that provided reasonable grounds to believe the charges were true
and supported Kelly’s “on-the-spot” termination, which satisfied due process.
Further, Galbreath testified she did not know Judge Crawford had issues
with her work performance before the June 18, 2013 commission meeting. To the
extent contrary testimony exists, the Court will not judge credibility. She testified

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the closest thing to knowing there was any issue with her work was a letter from
Commissioner Hamilton addressing Galbreath’s use of language in a particular
incident. But this letter was sent almost two years prior to Galbreath’s
termination. See (Doc. 72-2, p. 14). A reasonable juror could find that what took
place prior to the June 18, 2013 commission meeting did not provide Galbreath with
notice.
And Galbreath was not asked to attend the commission meeting to be
reprimanded. Her job required her to be there to keep meeting minutes and assist
the commission. No one except Judge Crawford testified at trial to knowing that
the disciplinary form would be produced at the meeting. But even when it was
produced, Galbreath did not know her job was on the line. Instead, it was
understood Galbreath would be allowed to take corrective steps. See (Doc. 79, p.
142) (Commissioner Rhodes signed the disciplinary form in the executive session
after being assured that Galbreath would be allowed to take corrective steps). That
it was understood Galbreath did not face termination in the executive session
further differentiates this case from Kelly where the employee knew from the start
he faced termination. No mention of termination was made until Commissioner
Anderson made the termination motion in the general session.
Even more, a review of the disciplinary form shows it provides only
conclusory reasons for the disciplinary action (e.g., “absence without authorized
leave,” “failure to carry out the duties of the job,” “failure to meet the standards of
appropriate attire on the job/workplace,” etc.). (Doc. 72-1, p. 30). Neither the

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factual bases nor the source of the information were provided. (Doc. 79-1, p. 46)
(Commissioner Anderson explaining that Judge Crawford simply read the
disciplinary form); (Doc. 79-1, p. 49) (Commissioner Hamilton explaining that Judge
Crawford simply read the disciplinary form); (Doc. 79, p. 106) (Judge Crawford
explaining that he read the disciplinary form). This is troublesome given that the
nature of the violations against Galbreath were extensive and, based on the
disciplinary form, seemed to cover a span of time, not just an isolated instance as
was the case in Kelly.
A voluminous explanation of the charges was unnecessary. See Harrison, 132
F.3d at 681 (“Defendant Gree also explained the charges against Plaintiff and
summarized for Plaintiff the information gained so far by the internal
investigation.”) Nonetheless, an explanation of the evidence amassed was due.
Loudermill, 470 U.S. at 546; see also Mullane v. Cent. Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950) (“An elementary and fundamental requirement of due
process in any proceeding which is to be accorded finality is notice reasonably
calculated, under all circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present their objections.”); Ogburia,
380 F. App’x at 929 (employee was provided details of the charges and “copies of the
formal complaints” against him); McDaniels v. Flick, 59 F.3d 446, 457 (3rd Cir.
1995) (explaining that notice need not be “in great detail as long as it allows the
employee the opportunity to determine what facts, if any, within his knowledge
might be presented in mitigation of or in denial of the charges”); Clemons v.

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Dougherty Cnty., 684 F.2d 1365, 1374 (11th Cir. 1982) (“Due process required, at
least, that Clemons be advised of the charges against him in sufficient detail fairly
to enable him to show any error that might exist….”) Without an explanation and
some prior notice, a reasonable juror could have concluded that Galbreath could not
participate in her pre-termination hearing to the extent called for by the nature of
the proceeding.
An explanation would have provided the commissioners a reasonable basis to
know whether the charges in the disciplinary form were true and could support
termination. But the testimony of two commissioners shows that such was not the
case. Commissioner Rhodes testified that he abstained from voting on Galbreath’s
termination because he would have liked to hear Galbreath’s side of the story. (Doc.
79, p. 77). Commissioner Rogers testified that, even at trial, he did not know why
Galbreath was terminated. (Doc. 72-1, p. 56). Thus, based on the facts of this case,
a reasonable juror could conclude that the contemporaneous and conclusory
disciplinary form did not pass constitutional muster.
Further, the Court finds unavailing Defendants’ contention that under
Ogburia Defendants need not apprise Galbreath that she faced termination.
Indeed, as Galbreath points out, “There is no explicit holding contained in Ogburia
supporting [ ] Defendants’ assertion.” (Doc. 96, p. 35). Instead, a review of Ogburia
shows that Galbreath was due notice that she faced termination, not just a written
reprimand. Before finding no pre-termination due process violation, the Ogburia
Court quoted Loudermill and explained, “‘The opportunity to present reasons, either

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in person or in writing, why the proposed action should not be taken is a
fundamental due process requirement….’” 308 F. App’x at 929 (quoting Loudermill,
470 U.S. at 546). This language identifies that the proposed action must be noticed
in the pre-termination proceeding.
Here, the disciplinary form states that it was a written reprimand. (Doc. 721, p. 30). The box for “termination” is blank. Even more, Commissioner Rogers
clarified that termination was not sought before signing the form. (Doc. 79, p. 142).
Judge Crawford testified that it was his intentions to allow Galbreath an
opportunity to take corrective steps, not to terminate her with the form. (Doc. 79, p.
98). The disciplinary form warns that termination could be the next step if the
corrective steps were not followed. (Doc. 72-1, p. 30). Surely the consequences
related to an erroneous decision regarding a written reprimand are lesser than
those of a termination. A reasonable juror could find that Galbreath was not
properly apprised of the severity of the action to be taken against her.
Defendants also contend judgment as a matter of law is due because
Galbreath was afforded an opportunity to respond but answered “no comment.”
(Doc. 80, p. 10). Galbreath counters that the evidence showed Defendants failed to
provide her with a meaningful opportunity to respond. (Doc. 96, p. 30). Instead,
Galbreath contends she was told to “shut up” when she attempted to respond. Id.
All due process requires an employee be afforded is the opportunity to
“respond after being confronted with the charges.” Harrison, 132 F.3d at 684.
Notwithstanding the summary nature of such an opportunity, an employee should

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be allowed to “present evidence in [her] defense—to tell [her] side of the story,”
Harrison, 132 F.3d at 684, and the opportunity to respond must be meaningful,
LaChance v. Erickson, 522 U.S. 262, 266 (1988) (citing Loudermill, 470 U.S. at 542).
Galbreath testified that she attempted to respond and defend herself while
Judge Crawford read the disciplinary form, but the testimony of two witnesses
established that Judge Crawford told Galbreath to sit still and shut up. (Doc. 79, p.
142) (Galbreath); (Doc. 79, p. 76) (Commissioner Rhodes). When asked on crossexamination whether she was offered a chance to respond after Judge Crawford
read the form, Galbreath stated she did not remember Judge Crawford giving her
the opportunity. (Doc. 79, p. 215). The only statement she mentioned Judge
Crawford making was asking her to sign the disciplinary form. Id. When asked on
direct examination whether anything else occurred in the executive session after
Judge Crawford talked to her about the disciplinary form, Galbreath unequivocally
answered, “No, sir.” Id. at 152. Commissioner Anderson also testified that the only
thing Judge Crawford asked of Galbreath after reading the disciplinary form was
for her signature. (Doc. 79-1, p. 46). A reasonable juror could infer from this that
Galbreath was not provided an opportunity to respond on June 18, 2013.
Judge Crawford and other commissioners did contradict this in their
testimony and stated that Galbreath was afforded an opportunity to respond but
simply replied “no comment.” If true this could lead a reasonable juror to conclude
that Galbreath was provided an opportunity to respond. But the Court will not
determine which account is more credible. This was a job for the jury, and the

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Court will draw all reasonable inferences in Galbreath’s favor. See Adler, 137 F.3d
at 1340 (concluding that a court may not “decide the credibility of witnesses” in
reviewing a motion for judgment as a matter of law).
Moreover, reasonable jurors could have concluded that, if an opportunity to
respond was provided, it was not meaningful. The disciplinary form was a surprise
for Galbreath and the other commissioners. See, e.g., (Doc. 79-1, pp. 45, 59). As
explained above, the notice was conclusory, without factual explanation, and
without any supporting materials. It is hard to understand how Galbreath could
meaningfully respond without knowing the factual bases of the allegations or
having prior knowledge of a wrongdoing. Thus, a reasonable juror could conclude
that a serious risk of an erroneous decision existed and Galbreath was not afforded
a meaningful opportunity to respond to the charges against her that formed the
bases of her termination. Defendants are not due judgment as a matter of law on
Galbreath’s pre-termination due process claim.
In like fashion, Defendants are not due judgment as a matter of law on their
contention that Galbreath received “any” procedural due process. (Doc. 80, pp. 13–
19). In this section, Defendants again contend that there is no “constitutionallyguaranteed minimum amount of time that must be provided to an employee before
a pre-termination hearing can be held.” (Doc. 80, p. 17). Further, Defendants argue
that there is no pre-termination due process requirement that an employer warn an
employee that they face termination. Id. at 16. Defendants again question this
Court’s citation to Staples v. City of Milwaukee, 142 F.3d 383 (7th Cir. 1998), in

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ruling on earlier cross-motions for summary judgment. Id. at 14.
But as this Court has already explained at length, there is no “one-size-fitsall” formula that dictates the procedures for notice and an opportunity to respond.
Carey, 435 U.S. at 259. And although a full-fledged or even mini-trial is not
required, “‘procedural due process rules are shaped by the risk of error inherent in
the truth-finding process.’” Id. (quoting Mathews, 424 U.S. at 344). Based on this,
the Court cannot say the above analysis or its Summary Judgment Order regarding
the same issue is in error, even when couched as whether Galbreath received “any”
due process. Thus, Defendants are also not due judgment as a matter of law on this
point.
C. Applicability of McKinney and Parratt
Defendants next argue they are due judgment as a matter of law, even if
Galbreath was denied a pre-termination hearing, because Galbreath’s due process
claim is barred by McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) and Parratt v.
Taylor, 451 U.S. 527 (1981). (Doc. 80, p. 19). Defendants continue, “The Eleventh
Circuit has never held that the denial of a pre-termination hearing constitutes a[ ]
constitutional violation that is exempt from the requirements of McKinney.” (Doc.
80, p. 22). Galbreath launches a two-front counter to Defendants’ argument. First,
Galbreath contends that neither case applies because her property interest violation
was complete when Defendants afforded her neither notice nor a pre-termination
hearing. (Doc. 96, p. 36). Second, Galbreath contends that neither case applies
because, as she argued, “the policy in question is itself unconstitutional as it does

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not provide for notice or a hearing prior to termination.” Id. at 37. Galbreath
further contends that this Court has previously addressed these issues at summary
judgment; Defendants offer “no new argument, and there have been no changes in
Eleventh Circuit or United States Supreme Court precedent that would warrant a
reversal at this stage of the litigation.” Id.
The undersigned finds Galbreath’s last point persuasive. This Court’s
Summary Judgment Order has been reviewed along with Defendants’ current
argument on this point. Defendants make no new argument or put additional
caselaw before the Court that persuades the undersigned that its earlier ruling on
the applicability of McKinney and Parratt was in error. Thus, “no constructive
purpose would be served by the court reiterating the reasoning and conclusions of
[an earlier] order in detail…. Summary disposition of this issue is warranted.”
Costa v. Sam’s E., Inc., No. 11-cv-000297-WS-N, 2012 U.S. Dist. LEXIS 156575,
2012 WL 5386921, at *4 (S.D. Ala. Oct. 31, 2012).
D. Whether Galbreath’s Complaint Alleges the Policy Created a Property
Interest in her Employment
Defendants next contend that Galbreath’s complaint does not “attempt to
allege that the [Policy] rose to the level of creating a property right in her
employment.” (Doc. 80, p. 27). Instead, Defendants aver that Galbreath alleged
that “Hale County has ‘constitutionally deficient policies’ that did not provide
[Galbreath] with procedural due process.” Id. Since Plaintiff did not amend her
pleadings to reflect as much, Defendants insist, the issue of whether she was denied
due process of a property right based upon the Policy should not have been tried.

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Galbreath counters that her complaint sufficiently lays out that she alleged a
property interest created by the Policy, which precludes judgment as a matter of
law. (Doc. 96, p. 26). The Court agrees with Galbreath’s position.
Paragraph 37 of Galbreath’s Complaint states, “Hale County promulgated
personnel policies that were in place at the time of [Galbreath’s] termination.” (Doc.
1). Paragraph 38 alleged that these policies were unconstitutional. Id. Galbreath’s
Complaint goes on to incorporate these paragraphs in her Fourteenth Amendment
Due Process Claim. Further, under this Claim, Galbreath alleged that she “had a
constitutionally protected property interest in her employment as County
Administrator.” Id. at 8. The Policy, she continues, was “constitutionally deficient”
in that it did not provide her “notice or a sufficient opportunity for her to be heard
prior to being terminated.” Id.
This language sufficiently lays out that Galbreath alleged a property interest
created by the Policy in the Complaint. To be sure, why would Galbreath allege a
claim that is grounded, in part if not in all, on the Policy being constitutionally
deficient if she did not contend the Policy, likewise, created a constitutionally
protected property interest? The Court finds no valid reason to conclude that
Galbreath would argue one but not the other. The constitutionality of the Policy
would hardly be relevant if it did not create a property interest.
Moreover, if there was any doubt in the Complaint, Galbreath made it crystal
clear in her response to Defendants’ Motion to Dismiss that she claimed an interest
in her employment based on the Policy. (Doc. 19, p. 5). Practically every filing from

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there out made this point even clearer. Thus, the Court finds Defendants are not
due judgment as a matter of law.
E. Whether the Policy Created a Property Interest
Next, Defendants take issue with the Court’s determination that the Policy
rose to the level of creating a property interest in Galbreath’s employment.2 (Doc.
80, p. 28). To the extent Defendants argue the Policy did not create a property
interest for the same reasons argued at summary judgment, the Court does not
address these arguments but summarily dismisses them. See Costa, 2012 U.S. Dist.
LEXIS 156575, at *4 (summarily dismissing a motion for judgment as a matter of
law because “no constructive purpose would be served by the Court reiterating the
reasoning and conclusions of [an earlier] Order in detail”). To the extent
Defendants offer new arguments also raised in their Rule 50(a) motion, the Court
will address each in turn.
First, Defendants aver that the third element of Hoffman-La Roche, Inc. v.
Campbell, 512 So. 2d 725 (Ala. 1987), requires an employee continue employment
“with actual awareness that she is doing so under the policy” in order to provide
valid consideration for an implied employment contract. (Doc. 80, pp. 28–29). Thus,
Defendants maintain, Hoffman-La Roche requires Galbreath subjectively believe
that the Policy applies to her. Id. Defendants argue Galbreath did not provide the
necessary consideration to form an employment contract because she thought the

Whether the Policy created a property interest was a legal question for the Court
to decide. MacKenzie v. Rockledge, 920 F.2d 1554, 1559 (11th Cir. 1991) (citation
omitted).
2

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Policy did not apply to her. Id. Galbreath counters that Defendants’ interpretation
of Hoffman-La Roche is incorrect. (Doc. 96, p. 24). She argues that the third
element is subjective only to the point that it requires an employee be “generally
aware” of the policy in question. Id.
In laying out the elements necessary to establish that a personnel policy can
create an implied employment contract, the Alabama Supreme Court held, in
relevant part:
In summary, we find that language contained in a handbook can be
sufficient to constitute an offer to create a binding unilateral contract.
The existence of such a contract is determined by applying the
following analysis to the facts of each case: First, the language
contained in the handbook must be examined to see if it is specific
enough to constitute an offer. Second, the offer must have been
communicated to the employee by issuance of the handbook, or
otherwise. Third, the employee must have accepted the offer by
retaining employment after he has become generally aware of the offer.
His actual performance supplies the necessary consideration.
Hoffman-La Roche, 512 So. 2d at 735 (emphasis supplied). The plain language of
Hoffman-La Roche does not require the employee in question understand part or
any of a policy apply to him or her. Instead, the employee must only “become
generally aware” of the policy and continue working. It is the employee’s
performance that supplies consideration for the contract, not a subjective
understanding. To be sure, the Hoffman-La Roche Court did not look to the
employee’s subjective understanding in that case but only whether he continued to
work after being provided the policy. Id. at 737. Defendants offer no caselaw to
support a contrary conclusion. Thus, Defendants’ “subjective understanding”
argument is unavailing.

19

Next, Defendants argue that their interpretation that the Policy did not
apply to Galbreath should be given deference, citing Chilton County Board of
Education v. Cahalane, 117 So. 3d 363 (Ala. Civ. App. 2012).3 (Doc. 80, p. 29). In
Cahalane, the Alabama Court of Civil Appeals concluded that “deference must be
afforded to the Board’s interpretation of its own policy, if that interpretation is
reasonable.” 117 So. 3d at 368. Therein, the court concluded that the Board’s
interpretation of its “zero-tolerance” drug policy was reasonable. Specifically, when
the policy had no provision regarding the intent of the violator, it was reasonable for
the policy to be “strictly applied” as the Board argued it should. Id. at 369.
The Court finds Defendants’ interpretation is not due deference under
Cahalane because Defendants’ interpretation of the Policy is unreasonable.
Galbreath was provided and signed for a copy of the Policy at the beginning of her
employment. (Doc. 79, p. 182). Galbreath was provided with any updates to the
Policy. Id. The Policy does not differentiate as to whom it does and does not apply.
Instead, “[e]ach employee” will be provided with a copy of the Policy, “outlining all
rules, regulations, policies, conditions, and benefits of County Employee
employment.” (Doc. 72-1, p. 8). “All new employees are required to serve a
satisfactory three-months’ probationary period before attaining permanent status in
the county service.” Id. at 21. “Any employee” who reaches permanent status has
access to the grievance process. Id. at 13. “[E]mployees” who “cannot or will not

“In the absence of definitive guidance from the [Alabama] Supreme Court, we
follow relevant decisions from [Alabama’s] intermediate appellate courts.” State
Farm Fire & Cas. Co. v. Steinberg, 393 F.3d 1226, 1231 (11th Cir. 2004).
3

20

conform” to the Policy are disciplined according to a six-step graduating scale. Id.
The June 18, 2013 disciplinary form Defendants provided Galbreath incorporates
this six-step graduating scale. Id. at 30. Thus, the Policy and Defendants’ actions
indicate they intended the Policy to apply to Galbreath.
Further, each contract anticipated that Hale County would allow Galbreath
to remedy any failure, neglect, or refusal to perform her duties “in accordance with
[Hale] [C]ounty’s disciplinary procedures” before being terminated. (Doc. 72-1, pp.
33, 37, 40). And the 2012 Contract specifically provided Galbreath “all rights,
privileges and benefits that County employees have ….” Id. at 50. This language
evidences that Defendants envisioned the Policy applying to Galbreath in some
instances if not every instance. Therefore, to say that the Policy is inapplicable and,
therefore, creates no property interest is unreasonable and due no deference.
Defendants next argue that Galbreath was prohibited from having a property
interest in her employment under the Code of Alabama § 36-27-8.2(a) (1975). (Doc.
80, p. 30). Section 36-27-8.2(a) reads, in relevant part:
Any person who is retired under the Employees’ Retirement System
may perform duties in any capacity, including as an independent
contractor, with any employer participating in the Employees’
Retirement System … without suspension of his or her retirement
allowance provided that (1) the person is not employed in a permanent
full-time capacity and (2) the person’s compensation from the employer
in calendar year 2016 does not exceed thirty thousand dollars
($30,000).
Ala. Code § 36-27-8.2(a) (1975).
Thus, Defendants continue, “to the extent Plaintiff asks this Court to find
that the policies created an ‘implied contract’ for ‘permanent’ employment, Plaintiff

21

would be asking this Court to imply a contract that expressly violates Alabama
law.” (Doc. 80, p. 30). Galbreath responds that although she was a permanent
employee she was not full-time, which renders § 36-27-8.2(a) inapplicable. (Doc. 96,
p. 25).
Although Galbreath focuses on only one, it appears Defendants may make
any of three arguments: (1) an employee cannot hold a permanent position and
draw Employees’ Retirement System benefits; (2) an employee cannot be a
permanent employee unless he or she is a full-time employee; and (3) Galbreath was
not a permanent employee so she could not have a property interest under the
Policy. Each argument is unavailing.
As to the first possible argument, the plain language of the statute makes
clear that simply being a permanent employee does not suspend Employees’
Retirement System benefits. Instead, three criteria must be meet: (1) permanent
employment; (2) full-time employment; and (3) make more than the statutory
amount per corresponding year. Thus, Galbreath does not run afoul of § 36-278.2(a) simply by being a permanent employee. There must be more. So even if
Galbreath is a permanent employee under the policy (which the Court has already
concluded she is), the trial evidence established that Galbreath was considered a
part-time employee and paid less than the statutory amount for the corresponding
year. (Doc. 72-1, p. 46;) (Doc. 79, pp. 112, 177).
As to Defendants’ second possible argument, Defendants offer no support for
the proposition that a part-time employee is precluded from being a permanent

22

employee under the Policy. Instead, the Policy states that any employee who
satisfactorily completes the “three-months’ probationary period” attains “permanent
status in county service.” (Doc. 72-1, p. 21). Further, Hoffman-La Roche does not
limit its holding to only full-time employees.
As to Defendants’ third possible argument, they argue in a footnote that if
Galbreath was part-time she was not permanent based on Plaintiff’s Exhibit 10.
(Doc. 106, p. 10 n. 4). Plaintiff’s Exhibit 10 is a letter drafted by Hale County’s
payroll clerk, Juanita Moore. (Doc. 72-1, p. 46). But tellingly, Defendants’ agent
drafted this letter after Defendants terminated Galbreath. Viewing this evidence in
the light most favorable to the non-movant, it is likely a typo, especially given that
the Policy does not preclude otherwise and Galbreath was given and signed for the
Policy. Based on the foregoing, Defendants are not due judgment as a matter of law
on their argument that the Policy did not create a property interest in Galbreath’s
employment.
F. Whether the Express Contract Precluded an Implied Contract Under
the Policy
Because of Hoffman-La Roche, an employer’s personnel handbook can create
an implied contract for employment that establishes more than “at-will”
employment for an employee. Ex parte Amoco Fabrics & Fibers Co., 729 So. 2d 336,
339 (Ala. 1989). Defendants aver that because Galbreath “asserts the existence of
an express written employment contract, she cannot also attempt to assert the
existence of an ‘implied’ employment contract based upon” the Policy, citing
Kennedy v. Polar-BEK & Baker Wildwood Partnership, 682 So. 2d 443 (Ala. 1996).

23

(Doc. 80, p. 31). Galbreath responds that Kennedy does not bar her assertion of both
an express and implied contract because Defendants disputed the express contract’s
existence. (Doc. 96, p. 22). Further, Galbreath continues, the express contract
incorporated the Policy and, therefore, the result remains that Galbreath had a
property interest in her employment. Id. at 23. The Court agrees with Galbreath’s
position.
In Kennedy, the Alabama Supreme Court “recognized that where an express
contract exists between two parties, the law generally will not recognize an implied
contract regarding the same subject matter.” 682 So. 2d at 447 (emphasis supplied).
As one court explained, “If the parties’ dealings are covered by an express
agreement, then there is no need to imply an agreement between them to ward off
inequitable results.” White v. Microsoft Corp., 454 F. Supp. 2d 1118, 1133 (S.D. Ala.
2006).
But as the Kennedy Court explained, this is generally the rule. When the
existence of an express contract is in dispute, an exception applies. Id. In such a
case, a plaintiff can proceed with both a breach of an express contract claim and a
breach of an implied contract claim. Id. (distinguishing this case from the general
rule and allowing both claims to proceed because “the existence of an express
contract … was highly disputed and remained a question of fact, as did the
alternative existence of an implied contract”). It is for the jury to determine under
which theory a plaintiff is due to recover. Id. A reviewing court evaluates whether
sufficient evidence supports both forms of recovery. Id.

24

Here, to begin with, Defendants only argue that Galbreath cannot “assert”
both an express contract claim and an implied contract claim. The Court
understands this argument to be that Defendants contend Galbreath cannot plead
inconsistent theories of recovery. This, however, is incorrect. The law permits
Galbreath to plead inconsistent theories of recovery. FED. R. CIV. P. 8(d)(3).
Whether both theories could be submitted to the jury is a different question,
which depended on whether both parties agreed an express contract existed.
Defendants vigorously fought the existence of an express contract every step of the
way, so it was proper to submit both theories to the jury to determine damages. See
Kennedy, 682 So. 2d at 447. And the fact that the jury returned a special verdict
form in this case, as opposed to a general verdict form in Kennedy, is immaterial.
The compensation and benefits interrogatory was a separate question for the jury to
decide. See (Doc. 73-1, p. 5). Because of this, the Court cannot conclusively say
under which theory the jury awarded Galbreath damages. See (Doc. 73-1, p. 5). It
could have been based on an express contract or an implied contract. Therefore, in
essence, it is the same as the general verdict in Kennedy.
To be sure, Defendants terminated Galbreath’s employment without the
unanimous vote the 2012 Contract requires and failed to pay her any of the money
required by the 2012 Contract after her termination. Further, as discussed above, a
reasonable juror could conclude that notice and an opportunity to respond were not
provided. Thus, substantial evidence supports the conclusion that Defendants
breached the 2012 Contract. As a result, the jury could have concluded that any

25

mental anguish or emotional distress damages were because Galbreath was not
afforded the notice and an opportunity to respond she was due under the 2012
Contract.4 The jury could also have concluded that any compensation and benefits
damages were because of a breach of the 2012 Contract.
Alternatively, the Policy required the concurrence of the County Engineer for
an employee to be terminated. (Doc. 72-1, p. 15). The County Engineer did not
concur in Galbreath’s termination. And, as discussed above, a reasonable juror
could have concluded that Galbreath was not provided notice or an opportunity to
respond before being terminated. Thus, substantial evidence supports a breach of
the implied contract. As a result, the jury could have found any mental anguish,
emotional distress, compensation, and benefits awarded to Galbreath were due to a
violation of the Policy.
Either decision by the jury would have been reasonable, and either decision
by the jury would not amount to double recovery. Prevention of double recovery is a
primary goal of a holding such as Kennedy. See Branch Banking & Tr. Co. v.
Howard, No. 12-0175-WS-N, 2013 U.S. Dist. LEXIS 32988, 2013 WL 951652, at *24
(S.D. Ala. Mar. 8, 2013) (finding that Kennedy and its progeny “make clear” that a
plaintiff “cannot recover both under” an implied contract and express contract on the
same subject matter) (emphasis supplied). Because double recovery did not occur,
Mental anguish is generally not recoverable in a breach of contract claim. Bowers
v. Wal-Mart Store, Inc., 827 So. 2d 63, 69 (Ala. 2001). But Galbreath could recover
for mental anguish suffered as a result of not being afforded notice and an
opportunity to respond under her § 1983 procedural due process claim based on a
property interest created by the 2012 Contract. Carey v. Piphus, 435 U.S. 247, 264
(1978).
4

26

Kennedy is inapplicable.
Moreover, all three contracts Galbreath presented invoke some, if not all, of
the Policy. See (Doc. 72-1, pp. 33, 37, 40). So even if the express contract does
preclude any consideration of the implied contract, the 2012 Contract incorporated
the terms of the Policy. As such, the result is the same in that Galbreath still had a
property interest in her employment. Thus, Defendants are not due judgment as a
matter of law on this point.
G. Whether Galbreath Mitigated her Damages
Defendants next argue they are due judgment as a matter of law on their
affirmative defense of failure to mitigate damages. Defendants contend they
“presented undisputed evidence that [Galbreath] made no effort to obtain any
comparable work following her termination by the County Commission.” (Doc. 80,
p. 12). Continuing, Defendants aver that Galbreath “never testified or presented
any evidence demonstrating any reasonable effort to obtain work after her
termination.” Id. Galbreath responds that the record amply establishes why it was
not reasonable for Galbreath to seek out other employment. (Doc. 96, p. 41).
A terminated employee has a duty to mitigate damages and make reasonable
efforts to obtain “substantially comparable” employment. Weaver v. Casa Gallardo,
Inc., 922 F.2d 1515, 1527 (11th Cir. 1991) (superseded by statute on other grounds).
Failure to mitigate such damages, however, “is an affirmative defense, and as such,”
each defendant bears the burden of proving. Munoz v. Oceanside Resorts, Inc., 223
F.3d 1340, 1348 (11th Cir. 2000). If “an employer proves that the employee has not

27

made reasonable efforts to obtain work, the employer does not have to establish the
availability of substantially comparable employment.” Weaver, 922 F.2d at 1527.
To begin, to the extent Defendants attempt to argue Galbreath “never
testified or presented any evidence demonstrating” her reasonable attempts to
secure additional employment, this is in error. Defendants, alone, bore the burden
to produce evidence that showed Galbreath failed to make a reasonable effort.
Considering the evidence Defendants presented on this issue, the following
exchange transpired on cross-examination:
Q [Defendants’ Counsel]: Now, even after you were terminated in Hale
County, you kept on working as county administrator in Lawrence
County; correct?
A [Galbreath]: Yes, sir.
Q: But in 2014 you were terminated by the Lawrence County
Commission, weren’t you?
A: Yes, sir.
Q: And you sued Lawrence County, didn’t you?
A: Yes – I – yes, sir.
Q: Have you applied anywhere else in Alabama –
A: No.
Q: – to get a job? Let me finish my question. Have you applied
anywhere else in Alabama to get a job as a county administrator since
you were terminated from Lawrence County?
A: No, sir.
Q: Have you applied – and I’ve got to cover all my bases here – have
you applied to anywhere else to be a county administrator since your
termination from Hale County?

28

A: No, sir. Because I did not think there was no use in me trying.
(Doc. 79, pp. 216–17).
Evaluating this limited exchange in the light most favorable to the nonmoving party, the Court cannot find that reasonable jurors would all concur
Galbreath made no reasonable efforts to mitigate her damages. To begin with, the
scope of defense counsel’s questioning was rather specific: Did Galbreath apply
anywhere else? This limited Galbreath’s efforts to actually submitting applications
with different Alabama County’s that, presumably, had open county administrator
positions. The focused nature of this questioning failed to consider any of the “leg
work” that goes into submitting an application (e.g., reaching out to contacts,
creating a resume, securing references, identifying open or available positions, etc.).
Of the pre-application tasks, identifying open or available positions is paramount.
Did Galbreath think there was “no use” in putting out applications because her
search turned up no open positions? It was reasonable for the jury to conclude from
Galbreath’s testimony that she wanted to work and reasonably attempted to secure
comparable employment but did not actually send out applications because, after
searching, she found no open positions. If she meant otherwise, Defendants failed
to clarify what Galbreath’s response meant.
Additionally, the jury could have interpreted Galbreath’s “would have done
no good to apply” response as her saying that applying would be futile. Reasonable
efforts to mitigate damages do not necessarily include futile efforts. See Ross v.
Twenty-Four Collections, Inc., 681 F. Supp. 1547, 1554 (S.D. Fla. 1988) (finding an

29

employee’s lack of diligence did not reduce her back pay where any attempts to
secure employment were rendered futile by the employer’s actions). Galbreath was
at the end of her career and on the tail end of two turbulent terminations. The
number of counties in Alabama is finite; therefore, the number of county
administrator positions is limited. Evidence was presented at trial leading to the
conclusion that county commissions and commissioners, at large, share information
regarding employees. See (Doc. 79-1, p. 43). It was reasonable that word of the
events surrounding both terminations got around. There was even a newspaper
article about one of Galbreath’s terminations. (Doc. 79, p. 155). Galbreath’s work
history, the limited market for county administrator positions in Alabama, and how
Galbreath’s application would be received were proper considerations for the jury.
See Rasimas v. Michigan Dep’t of Mental Health, 714 F.2d 614, 624 (6th Cir. 1983)
(“The reasonableness of the effort to find substantially equivalent employment
should be evaluated in light of the individual characteristics of the claimant and the
job market.”) A reasonable juror could have inferred from all of this and her answer
that Galbreath made reasonable efforts but found she was blackballed. Thus,
actually applying would have been futile.
Galbreath was not required to be successful in her mitigation efforts. She
was only required to make a reasonable effort. It was Defendants’ burden to ferret
out what Galbreath’s “no good to apply” response entailed; they did not. The Court
will not substitute its judgment for the jury’s. Given the above, reasonable jurors
could have found Defendants failed to prove Galbreath made no reasonable efforts to

30

find substantially comparable work merely because Galbreath did not do one of the
many things that could encompass reasonable efforts to secure new employment.
Lastly, if the jury reached either of the above conclusions (and they
reasonably could have), Defendants did not show that substantially comparable
work existed within the relevant area. Defendants are not due judgment as a
matter of law.
H. Whether the Written Contract Created a Property Interest
Citing Estes v. Tuscaloosa County, Alabama, 696 F.2d 898 (11th Cir. 1983),
Defendants argue that a contract that can be terminated without cause falls outside
the protections of the Due Process Clause of the Fourteenth Amendment. (Doc. 80,
p. 32). The 2012 Contract, Defendants continue, could be terminated without cause
and, therefore, did not create a property interest protected by the Fourteenth
Amendment. Id. Galbreath responds that under the 2012 Contract she was due
five years’ salary that could not be refused except for cause, which constitutes an
individual entitlement creating a property interest. (Doc. 96, p. 27).
“The hallmark of property, the [Supreme] Court has emphasized, is an
individual entitlement grounded in state law, which cannot be removed except ‘for
cause.’” Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982). If a party can
cancel a contract at its convenience and without cause, no constitutionally protected
property interest is created by the contract. Econ. Dev. Corp. v. Stierheim, 782 F.2d
952, 954 (11th Cir. 1986). As it relates to a public employee, a property interest can
exist in continued employment or continued pay. Estes, 696 F.2d at 900–01. If the

31

property interest is based on continued pay as a result of the employment, there
must be some “statute, rule, or understanding upon which [a] plaintiff” could rely
for the entitlement. Id.
Here, the Court finds Defendants fail to consider the entire scope of
Galbreath’s entitlement under the 2012 Contract (or either of the previous two for
that matter). Article III articulates that, as compensation for the Contract,
Galbreath “shall initially receive a salary of $22,000 per year. This salary shall be
increased by an amount equal to raises in accordance to salary set by the
Retirement Systems of Alabama.” (Doc. 72-1, p. 33). Further, Galbreath would
receive additional benefits commensurate “with other county employees.” Id. These
were to continue for the term of the 2012 Contract.
Paragraph A of Article 4 sets forth the only three scenarios upon which
Defendants may “discharge Employee and terminate” the 2012 Contract “for cause”:
1. [Galbreath] has failed, neglected[,] or refused to perform her duties
under this Agreement, which failure, neglect[,] or refusal shall not
have been remedied by [Galbreath] in accordance with County’s
disciplinary procedures; or
2. [Galbreath] has engaged in malfeasance, dishonesty[,] or gross
misconduct (a) in the performance of her duties to County, or (b) that
has the effect of injuring the business or reputation of County or its
affiliate; or
3. [Galbreath] has committed a material breach of this Agreement[.]
Id. at 33. Under Paragraph D of Article IV, only under one of these “for cause”
reasons may Defendants avoid paying Galbreath the entire compensation and
benefits she is due according to Article III. Id. Otherwise, Paragraph F explains:

32

Galbreath shall be entitled to receive, in full discharge of all County’s
obligations to [Galbreath], [her] full compensation, benefits[,] and
expense reimbursements due and payable to [Galbreath] under the
terms of this Agreement, including any salary increase [Galbreath]
would have been due under said Contract for the remainder of the
contract term. Said payments shall be made in equal monthly
installments for the total number of months remaining on the contract
term at the time of the termination.
Id.
Under this language, Galbreath had a continuing entitlement in receiving
her compensation, benefits, and expense reimbursements. These payments would
continue each month until the contract term expired. The only way Defendants
could avoid paying Galbreath all payments was by terminating the 2012 Contract
for cause based on the reasons in Paragraph A of Article IV. Defendants could not
avoid the payments due under the contract at their convenience, which
differentiates this case from those cited by Defendant. Therefore, Galbreath
possessed a property interest based on the 2012 Contract.
Alternatively, Defendants argue that Galbreath’s contract contained a clause
stipulating that payment under the contract is her “sole and exclusive remedy in
connection with termination of his [sic] employment under this Agreement.” (Doc.
105, pp. 13–14).5 Thus, Defendants continue, “even if [Galbreath’s] theory of an
enforceable contract holds true, her ‘sole and exclusive remedy’ would be a breach of
contract action to recover the severance payment, not a Section 1983 claim.” Id. at

Defendants’ citation for this argument references the 2012 Contract for Hale
County EMA Director Russell Weeden. See (Doc. 105, p. 14) (citing Doc. 72-1, p.
51). The Court presumes Defendants cited Weeden’s contract in error and meant to
cite Galbreath’s 2008 Contract. See (Doc. 72-1, p. 37).
5

33

14.
The Court finds this argument without merit and inconsistent with the jury’s
verdict. If the “sole and exclusive remedy” clause applies, this means the jury found
the 2008 Contract to be the valid contract because the 2012 Contract does not
contain this clause. The 2008 Contract expired November 25, 2013. (Doc. 72-1, p.
36). Therefore, after its expiration, it was not the sole and exclusive remedy upon
which the jury could award damages; the jury could have awarded Galbreath
damages based on her due process claim. This could be consistent with the jury
verdict.
On the other hand, and more likely the case, the jury found the 2012
Contract to be valid. As previously noted, the 2012 Contract contains no such
“exclusive remedy” language. Therefore, the 2012 Contract was not Galbreath’s
sole means of recovery.
Given this, Galbreath possessed a property interest based on the 2012
Contract, and Defendants are not due judgment as a matter of law.
I. Whether Galbreath Produced Evidence Supporting Damages
Defendants argue Galbreath failed to show “that her termination was an
obvious mistake that would have been avoided if only she had been afforded a
greater pre-termination opportunity to be heard.” (Doc. 80, p. 33). In other words,
Defendants allege that Galbreath failed to show damages flowing from the failure to
provide greater pre-termination due process. Id. At best, Defendants insist, “the
evidence is insufficient to support more than nominal damages” for Galbreath’s due

34

process claim. Id. at 33. Defendants contend Galbreath cannot establish more
because her termination was justified. Id. Citing Carey v. Piphus, 435 U.S. 247
(1978), Defendants maintain that Galbreath “may not recover compensatory
damages for a justified termination.” Id.
Galbreath responds that Defendants’ “obvious mistake” argument for
evaluating damages misstates Carey (Doc. 96, p. 43), and that sufficient trial
evidence establishes that a reasonable juror could find her termination unjustified.
Id. at 44. The Court agrees with both.
Section 1983 does not presume damages for a due process claim. Instead,
damages for a due process claim are meant to compensate for injuries caused by the
failure to provide the required procedural protections. Carey, 435 U.S. at 254–55.
These procedural protections are not meant to thwart the deprivation of a right. Id.
at 259. Instead, they protect against “the mistaken or unjustified deprivation of
life, liberty, or property.” Id. If no actual injury is shown based on a lack of
procedure, only nominal damages are recoverable. Id. at 266.
Even if an injury is shown by the failure to provide due process, a plaintiff is
not entitled to recover damages to compensate him or her if the deprivation is
justified. Id. at 260. In such a case, “the failure to accord procedural due process
could not properly be viewed as the cause of the” deprivation. Id. If the rule were
otherwise, “an award of damages for injuries caused by the [deprivation] would
constitute a windfall, rather than compensation,” for a plaintiff. Id. But the
justification defense does not require a plaintiff to show a deprivation was an

35

“obvious mistake” as Defendants contend. Instead, it must be shown that the
violation of due process occurred and the deprivation was unjustified. Id. at 266–
67.
When asked whether Galbreath “suffered some actual compensable injury
caused by the failure to give her procedural due process,” the jury answered, “Yes.”
(Doc. 73-1, p. 3). Substantial evidence supports the jury’s answer. The disciplinary
form was conclusory and provided no factual support. Galbreath did not know that
her job was on the line when the form was read. Evidence supports the conclusion
that she was afforded no meaningful opportunity to respond, if she was allowed to
respond at all. Without either of these protections, a reasonable juror could have
concluded that Galbreath’s termination posed a serious risk of an erroneous
decision. The testimony of at least two commissioners supports this position. With
the necessary procedures, Galbreath could have addressed these doubts, which led
to a loss in compensation and benefits. Thus, Galbreath established damage
flowing from the pre-termination procedure.
To this, however, Defendants contend Galbreath’s termination was justified
and that Galbreath can recover only nominal damages.
But when asked whether Galbreath’s termination was justified, the jury
answered, “No.” (Doc. 73-1, p. 4). Substantial evidence exits to support this verdict.
To begin, Defendants argued at length that Galbreath was absent from work. But
trial testimony and exhibits established that Galbreath had no set office hours. And
one of the same commissioners that said Galbreath was absent testified that he

36

stayed away from the office. (Doc. 79-1, p. 61). Which begs the question: how could
he know Galbreath was absent? Commissioner Anderson testified that Galbreath
was the “face of the commission” and should have physically been present. (Doc. 791, p. 44). But the jury could have reasonably rejected this point. If having a county
administrator physically present is important, it stands to reason that Defendants
would have hired someone to replace Galbreath. Defendants never hired a new
county administrator.
Additionally, despite Defendants’ evidence otherwise, several co-workers
testified that they did not witness Galbreath perform any of the actions enumerated
in the disciplinary form. (Doc. 79, pp. 117–19); (Doc. 79-1, pp. 237–38). It was the
jury’s duty to weigh this contradicting evidence and establish which witness was
more credible on each point. Adler, 137 F.3d at 1340. Defendants are not due
judgment as a matter of law.
Next, Defendants argue Galbreath presented “no corroborating evidence to
support her recovery of damages for emotional distress” or mental anguish. (Doc.
80, p. 35). Further, Defendants maintain, Galbreath “failed to identify any
emotional distress flowing from the alleged insufficiency of her pre-termination
hearing.” Id. Instead, Defendants contend any emotional distress or mental
anguish Galbreath claims was simply caused by being fired. Id. at 36).
Galbreath parries that she specifically testified to the negative impact the
due process violation had on her and how this was directly associated with the
constitutional violation. (Doc. 96, p. 45–46). Specifically, Galbreath contends she

37

was embarrassed, could not sleep, suffered stress, and ultimately suffered a
shingles breakout as a result. Id. at 46.
Generally speaking, emotional distress damages need not be exactly
calculated in order to be recoverable. Akouri v. Fla. DOT, 408 F.3d 1338, 1345
(11th Cir.), vacated in part on other grounds, 2005 U.S. App. LEXIS 11427 (2005).
But emotional distress damages are not presumed from a constitutional violation.
Id. (citing Carey, 435 U.S. at 263–64). Instead, “such damages are customarily
proved by showing the nature and circumstances of the wrong and its effect on the
plaintiff.” Id. (citation omitted). A plaintiff’s testimony may provide the necessary
evidence to support such an award. Id. (citing Price v. City of Charlotte, 93 F.3d
1241 (4th Cir. 1996)). But such testimony “must establish that the Plaintiff
suffered demonstrable emotional distress, which must be sufficiently articulated;
neither conclusory statements that the plaintiff suffered emotional distress nor the
mere fact that a constitutional violation occurred supports an award” of emotional
distress damages. Id. (citation omitted). Once a jury has awarded damages for
emotional distress, the award is deferentially reviewed because “the harm is
subjective and evaluating it depends considerably on the demeanor of the witness.”
Ferrill v. Parker Group, Inc., 168 F.3d 468, 476 (11th Cir. 1999).
The following exchange took place on direct examination:
Q [Plaintiff’s Attorney]: Is there any – I believe you just explained
notice. Is there any emotional distress you’ve had from not having the
opportunity … from not having the opportunity to be heard?
A [Galbreath]: Well, there’s the stress on – on your health – on my
health, part of it, because it automatically is bad for your nerves. You

38

can’t sleep. I had a case of shingles after this situation. So it’s just –
you have to pick up with life and go on, but it is very stressful.
…
Q: Would you liked to have told your side of the story?
A: Yes, sir.
Q: And how would that have affected anything?
A: Well I would have like for it to have been put in the newspaper,
because there was nothing ever put in the newspaper, the reason that I
was able to leave that county, and the part of my children at home had
to suffer the consequences when they went to work: “Your mother did
something wrong.” And my children – my son was a deputy in Hale
County. And he had to go ahead and finish out his term down there,
that his mother got fired. And my daughter had to go into work facing
the fact that “your mother got fired from Hale County, she did not do
her job.” So it humiliated my family, which automatically hurt my
feelings.
(Doc. 79, p. 157).
Reviewing this testimony in the light most favorable to the non-moving party,
the Court finds Defendants are not due judgment as a matter of law. Galbreath
articulated demonstrable emotional distress going beyond mere conclusory
statements. The stress she suffered caused sleep lose and a shingles outbreak.
Galbreath was not required to produce documented medical records on these points.
Here testimony sufficed, and it was for the jury to determine her credibility. She
offered this testimony in response to being asked if she could attribute any
emotional distress to the constitutional violation. These harms were a genuine
injury resulting from the constitutional violation. Akouri, 408 F.3d at 1345.
Additionally, when Galbreath’s final statement is read in the full context of
the line of questioning, it becomes apparent what her response was directed to:

39

what being afforded due process would have done. It would have allowed her the
opportunity to meaningfully respond, which would have prevented her humiliation.
Thus, substantial evidence exists to support the jury’s award of emotional distress
damages.
Defendants also contend that the Court should reverse the award of
emotional distress damages because Galbreath cannot recover such damages on her
wrongful termination claim under Alabama law. In support, Defendants cite the
Alabama Supreme Court decision of Hobson v. American Cast Iron Pipe Company,
690 So. 2d 341 (Ala. 1997). Indeed, the law in Hobson is as Defendants contend;
however, Hobson does not provide Defendants the relief requested. There is no
indication that the jury awarded Galbreath emotional distress based on the
wrongful termination claim instead of the due process claim. See (Doc. 73-1, pp. 4–
5).
Moreover, as Defendants proposed and the Court accepted, a claim of
wrongful termination under Alabama law is decided in the same manner as a
Fourteenth Amendment due process claim. (Doc. 61, p. 25) (citing Limbaugh v.
Johnston, 393 So. 2d 963, 965 (Ala. 1979)). The Court instructed the jury as such.
(Doc. 79-1, p. 111). Further, the Court provided a copy of the verdict form to both
parties and reviewed it with both parties before it was provided to the jury.
Defendants failed to raise any objection to the verdict form in the regard they now
argue at the charging conference. And the interrogatory charged to the jury is
strikingly similar to the interrogatory proposed by Defendants. Compare (Doc. 61,

40

p. 33) with (Doc. 73-1, pp. 5–6). To now cry error for instructing the jury as
requested or in the absence of an objection is improper.
Lastly, Defendants argue that Galbreath failed to pursue any posttermination remedies under the Policy or in state court. (Doc. 80, p. 36). Therefore,
under McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994), “she cannot claim that she
suffered any damages by the alleged failure to provide a pre-termination hearing.”
Id. at 37. This argument has been made and analyzed at length throughout this
proceeding. Such analysis is, again, incorporated for efficiency purposes. The Court
remains unconvinced that McKinney applies as Defendants contend. Therefore, the
Court denies judgment as a matter of law on this point.
J. Whether Galbreath Can Bring a Wrongful Termination Claim
Since a claim of wrongful termination under Alabama law is decided in the
same manner as a Fourteenth Amendment due process claim, Defendants contend
they are due judgment as a matter of law because Galbreath was not actually
denied pre-termination due process. (Doc. 80, p. 37). Alternatively, Defendants
contend, as they have several times before, “no such cause of action exists under
Alabama law.” Id. at 38. Galbreath responds that the Court has already ruled on
this same argument on two separate occasions, and Defendants raise no new basis
or caselaw that calls for the Court to reverse course now. (Doc. 96, pp. 48–51).
For the most part, Galbreath is correct. Defendants made most of the
present arguments in their Motion to Dismiss and Motion for Summary Judgment.
Compare (Doc. 7, pp. 7–8) and (Doc. 26, pp. 28–30) with (Doc. 80, pp. 37–41). To the

41

extent Defendants make no new arguments, the Court is unpersuaded its earlier
reasoning or conclusions are in error. “[N]o constructive purpose would be served
by the court reiterating the reasoning and conclusions of [an earlier] order in
detail…. Summary disposition of this issue is warranted.” Costa, 2012 U.S. Dist.
LEXIS 156575, at *4.
To the extent Defendants raise a new argument for judgment as a matter of
law, Defendants contend the caselaw Galbreath relies upon is distinguishable
because each “involved an express promise of a termination hearing – either by
statute or by handbook.” (Doc. 80, p. 41). Galbreath, Defendants contend, is unable
to cite a portion of the Policy or the 2012 Contract the specifies “any particular type
of pre-termination hearing [ ] [Galbreath] did not receive.” Id. “Thus, she cannot
squeeze within the line of authority which she alleges creates a common law tort for
wrongful termination.” Id.
Under the language of the Alabama Supreme Court, the Court finds
Defendants’ position unpersuasive. Specifically, in Limbaugh v. Johnson, the
Alabama Supreme Court found a state law claim of wrongful termination to exist
based on an injury caused by a failure to dismiss an employee “in accord with due
process of law requirements.” 383 So. 2d 963, 965 (Ala. 1981) (citing Jefferson Cnty.
v. Reach, 368 So. 2d 250 (Ala. 1978)). The Limbaugh Court did not limit its decision
based on a property interest that was deprived contrary to a statute or handbook.
Instead, such a claim applied because the employee possessed a property interest
deprived in violation of the due process of law. And in Limbaugh, pre-termination

42

due process protections “include[d] at a minimum: (1) written notice of the reasons
for termination and (2) an effective opportunity to rebut those reasons.” Id. at 964.
What this means is that wrongful termination is based on a failure to provide notice
and an opportunity to respond in accordance with due process when a property
interest in employment exists, not just based on a violation of a handbook or
statute. Given this, the Court finds Defendants’ contention unavailing. Defendants
are not due judgment as a matter of law because, as explained above, a reasonable
juror could conclude that a due process violation occurred.
K. Whether Galbreath Exhausted Administrative Remedies
Defendants move for judgment as a matter of law based on Galbreath’s
alleged failure to exhaust administrative remedies before bringing suit. (Doc. 80, p.
41). Defendants contend that the Policy spells out a four-step grievance procedure
that should have been followed but was not. Id. “Because [Galbreath] did not
attempt to make use of the grievance procedure, she is barred from seeking judicial
review of her termination.” Id. Galbreath responds that failure to exhaust an
administrative remedy is an affirmative defense. (Doc. 96, p. 46). Galbreath
maintains that Defendants did not plead this defense in their Answer and,
therefore, cannot now raise it for the first time. Id.
Indeed, failure to exhaust an administrative remedy is an affirmative
defense. Dougherty Cnty. Sch. Sys. v. Bell, 694 F.2d 78, 80 (5th Cir. 1982); see also
Williams v. Runyon, 130 F.3d 568, 573 (3rd Cir. 1997) (“In Title VII actions, failure
to exhaust administrative remedies is an affirmative defense in the nature of

43

statute of limitations.”) “The pleading of an affirmative defense is mandated by
Federal Rule [of] Civil Procedure 8(c) to be presented in a responsive pleading, and
a party waives its right to advance an affirmative defense by failing to assert it as
such.” Steger v. GE, 318 F.3d 1066, 1077 (11th Cir. 2003).
Here, Defendants did not raise this affirmative defense in their Answer. The
first time such an argument was put forth by Defendants was in their Rule 50(a)
Motion for Judgment as a Matter of Law. (Doc. 69, p. 35). This argument is now
renewed. It, therefore, would seem Defendants waived the right to raise this
defense.
Defendants counter that this affirmative defense was properly raised and
tried by implied consent of Galbreath. (Doc. 105, p. 14). Defendants contend,
“Implied consent may be found where a party fails to object to presentation of
evidence on [an] affirmative defense.” Id. (citing Steger, 318 F.3d at 1077). They
continue that sufficient evidence was presented at trial establishing Galbreath
failed to exhaust administrative remedies without objection.
At trial, the following brief exchange took place:
Q [Defendants’ Attorney]: Section 6 of the disciplinary procedure says
after termination “an appeal can be made following the steps in
grievance procedure”; correct?
A [Galbreath]: Yes, sir.
Q: Did you ever file a grievance?
A: I – I don’t – if I did, my attorney did.
Q: Okay. You don’t remember ever doing it, do you?

44

A: I never did receive anything from them on my termination.
Q: Did you ever file a grievance?
A: No, sir, because I never got a termination letter.
(Doc. 79, p. 185).
This language establishes that Defendants presented, without objection, at
least some type evidence that Galbreath might have failed to exhaust any
administrative remedy. But the handful of questions in this case are materially
distinguishable from Steger to the extent the Court cannot say exhaustion was tried
by implied consent. In Steger, the defendant “raised and discussed” a “salary
retention program” at length in the pretrial conference, which was the contested
affirmative defense in an Equal Pay Act claim. 318 F.3d at 1077. Further,
sufficient evidence supporting the defense was presented at trial and the plaintiff
did not object. Id. But here, the question of exhausting an administrative remedy
was not discussed pretrial and only sparse evidence was presented. Moreover,
Defendants did not request the Court instruct the jury on this affirmative defense
when they requested that the jury be charged with several other affirmative
defenses.
But even if this affirmative defense was sufficiently raised and tried by
implied consent, the Court’s reasoning does not stop there. The Alabama Supreme
Court has identified several exceptions to the exhaustion doctrine. See Goolsby v.
Green, 431 So. 2d 955, 958 (Ala. 1983). One such exception applies when
“exhaustion of an administrative remedy would be futile.” Id. Indeed, the Alabama

45

Court of Civil Appeals’ case Defendants cite in support of judgment as a matter of
law recognized this exception. See Hall v. Dothan, 539 So. 2d 286, 289 (Ala. Civ.
App. 1988). Galbreath contends that exhaustion would have been futile in her case.
Under the Policy, exhaustion would require Galbreath maneuver through a
four-step process, which ended with the same body that terminated her. See (Doc.
72-1, pp. 13–14). Step One required Galbreath discuss her termination with Judge
Crawford, her immediate supervisor. If Step One was unsuccessful, Step Two
required Galbreath file a complaint with “the Department Head.” Presumably,
again, this is Judge Crawford. If Step Two was unsuccessful, Step Three would
have Galbreath appeal to the Personnel Review Board, which rendered a
recommendation. Step Four required the Hale County Commission do one of three
things with the recommendation: (1) affirm the recommendation of the Personnel
Review Board and adopt it; (2) modify the recommendation of the Personnel Review
Board and adopt it; or (3) reject the recommendation of the Personnel Review
Board. Id. “Step Four shall be the final step in attempting through administrative
procedures to resolve [any] grievance.” Id.
Outlining these steps, it can be seen that Galbreath would have appealed her
termination to those who initiated it or approved it at almost every step of the
process. Step One and Step Two would have been unavailing because it was
unlikely Judge Crawford would have reversed course after he voted in favor of
Galbreath’s termination on June 18, 2013. The only uncertainty is associated with
what decision would be made by the Personnel Review Board because the members

46

of this board are unknown. But what is known is that any decision by the
Personnel Review Board must be affirmed, modified, or rejected by the Hale County
Commission. This renders the Personnel Review Board’s decision somewhat
irrelevant. Given the evidence adduced at trial, the Court can say that reasonable
jurors could have found that the Hale County Commission would have rejected any
favorable ruling for Galbreath. This renders the grievance procedure futile. See
Panola Land Buyers Ass’n v. Shuman, 762 F.2d 1550, 1556 (11th Cir. 1985) (“Nor
will exhaustion be required if the claim clearly will be denied ….”)
Additionally, Defendants’ citation to Ogburia v. Cleveland, 380 F. App’x 927
(11th Cir. 2010), is unavailing. There is no indication that Ogburia argued or the
court evaluated whether any administrative remedy in that case would have been
futile, which Galbreath squarely raised. Given this, the Court finds that Alabama’s
futility exception to exhausting an administrative remedy applies. Defendants are
not due judgment as a matter of law on this point.
L. Whether Defendants Breached the Contract
Defendants contend they are due judgment as a matter of law on Galbreath’s
breach of contract claim for two reason. As for their first reason, under Shores v.
Elmore County Board of Education, 3 So. 2d 14 (Ala. 1941), and Willett & Willett v.
Calhoun County, 117 So. 311 (Ala. 1928), Defendants aver that Judge Leland Avery
could not bind successor government officials with the 2012 Contract. (Doc. 80, pp.
42–43).
Galbreath responds that Defendants’ caselaw is distinguishable. (Doc. 96, p.

47

53). Further, she urges that “this is not a case where an ‘old body’ bound a ‘new
body.’” Id. “The commissioners who voted for the 2012 Contract were the exact
same commissioners who voted to terminate” Galbreath. Id. (emphasis omitted).
Only the probate judge changed. Id. Galbreath continues that the 2012 Contract
did not bind the commission from firing Galbreath but only enumerated certain
procedures to do so. Id.
The Court agrees that Defendants’ caselaw does not lend the support they
suggest. To be sure, the Shores Court found that a county superintendent of
education was an executive officer and, by law, advisor to the county board of
education during his term in office. Shores, 3 So. 2d at 14. Given this, the court
drew support from Willett and found the superintendent’s “position in that regard
not less important nor intimate than that of an attorney.” Id. at 16. Thus, the
board of education could not enter into a contract guided by the previous
superintendent that “deprived itself of the advice of” the incoming superintendent.
Here, the position of Hale County Probate Judge does not equate with the
position of superintendent in Shores. Although the Hale County Probate Judge was
the chair of the county commission, the probate judge in Hale County merely
“administer[s] and direct[s] the flow of the [county commission] meeting.” (Doc. 79,
p. 86). The Hale County probate judge does not take part in a vote unless there is a
tie. Id. at 109. Instead, the bulk of the probate judge’s duties fall in other areas
(e.g., license renewal, probate of wills, vehicle titling and registration, marriage
license, etc.). Given this, Judge Avery did not deprive the commission of important

48

or intimate advice of the incoming probate judge as it relates to personnel matters.
Even so, Judge Crawford could still “advise” termination under Galbreath’s 2012
Contract. The only difference is that there must be unanimous consent for the
termination to be effective.
Willett is also inapposite. The Willett Court reasoned that the succeeding
board “should at all times be free to select its own confidential legal advisor.” 117
So. at 311. Thus, the preceding board in Willett could not enter into a contract with
an attorney that extended into the term of the succeeding board. The sanctified
attorney/client relationship does not equate to the relationship between the Hale
County Commission and its county administrator in this case. Under the 2012
Contract and the Code of Alabama § 11-3-18 (1975), Galbreath’s duties were
administrative in nature (e.g., preparing a budget, keeping and recording minutes,
maintaining records, etc.) or even managerial in nature. Conversely, in the
Alabama Supreme Court’s own words, an attorney is a “confidential legal advisor.”
Moreover, if the county administrator position was such an important position, it
begs the question as to why Hale County did not replace Galbreath after her
termination.
Lastly, as Galbreath points out, evidence indicates that, although Judge
Avery signed the contract, he and a preceding commission did not bind a successor
commission with the 2012 Contract. Unrecorded meeting minutes recovered from
Galbreath’s work computer show, save for Judge Crawford, the same county
commission that voted to terminate the 2012 Contract on June 18, 2013, is the same

49

county commission that voted to approve it on November 27, 2012. Compare (Doc.
72-1, p. 29) with (Doc. 72-1, p. 54). A preceding commission did not deprive a
successor commission of a personnel decision as Defendants contend. Thus, Shores
and Willett are distinguishable on their facts.
As to Defendants’ second point for judgment as a matter of law on
Galbreath’s breach of contract claim, they maintain that a county administrator’s
first duty under the Code of Alabama § 11-3-18 (1975) is to “keep and record
minutes of all County Commission meetings.” Defendants aver that Galbreath
admitted that she did not “record” the commission meeting minutes for almost a
year but merely “kept” electronic versions on her work computer. (Doc. 80, p. 43).
Thus, Defendants continue, Galbreath did not perform under the 2012 Contract and
cannot recover for this claim. Id. Galbreath counters that evidence establishes that
the normal practice was to periodically print off and permanently record the
minutes, which were electronically stored on her computer. (Doc. 96, p. 54).
Further, she insists that Defendants breached the contract when they terminated
her employment without unanimous approval and failed to pay her afterwards. Id.
at 55.
In order to recover for breach of contract under Alabama law, a plaintiff must
satisfy three elements: (1) that a contract existed; (2) that the defendant breached
the contract; (3) that the plaintiff performed under the contract; and (4) resulting
damages. Shaffer v. Regions Fin. Corp., 29 So. 3d 872, 880 (Ala. 2009) (citation
omitted). Any breach must be material in order to be recoverable or prevent

50

recovery. Sokol v. Bruno’s, Inc., 527 So. 2d 1245, 1247–48 (Ala. 1998). “A material
breach is one that touches the fundamental purposes of the contract and defeats the
object of the parties in making the contract.” Id. at 1248. Whether a breach is
material or essential to the contract is frequently a question of fact determined by
the jury. Harrison v. Family Home Builders, LLC, 84 So. 3d 879, 889 (Ala. Civ.
App. 2011) (citing Birmingham News Co. v. Fitzgerald, 133 So. 31 (Ala. 1931)).
Here, a reasonable juror could conclude that Galbreath did not breach the
2012 Contract because of the minutes and, if she did, that it was not a material
breach. Galbreath testified that she took meeting minutes at each commission
meeting. (Doc. 79, p. 139). These minutes were then typed into her work computer.
Id. at 133. The unrecorded minutes from at least one of the meetings in question
were produced at trial from this computer. (Doc. 72-1, p. 54). After entry into the
computer, the media and commissioners were given a copy of the minutes. (Doc. 79,
p. 138). The commission would then approve the computer copy for permanent
recordation. Id. Galbreath testified that prompt permanent recordation was
problematic due to difficulties with printing off the large minute sheets and the
unavailability of the commissioners to sign the minutes. Id. at 138–39. Therefore,
she would schedule a time to print several at once and have the commissioner
present to sign. Given the problems Galbreath stated she had with permanently
recording the meeting minutes, a reasonable juror could conclude that Galbreath
did not fail to perform under the 2012 Contract by periodically printing the minutes
she took at each meeting and kept on her computer.

51

At least one other witness testified that printing and permanently recording
meeting minutes were not as difficult as Galbreath contended, which could render
periodic printing unnecessary. But this same witness also testified that after
Galbreath’s termination Hale County switched to a smaller meeting minutes book,
which made it easier to print off minutes for permanent recordation. (Doc. 79-1, p.
263). The jury could have inferred from Hale County switching to a different
minute book that problems did exist and the commission was aware of difficulties.
Either way, which account is more credible is not for the Court to decide. Adler, 137
F.3d at 1340.
Even more, although Alabama law requires Galbreath keep and record the
minutes, the law does not articulate a time within which a county administrator
must “record” meeting minutes. See Ala. Code § 11-3-18 (1975). Given this, there is
no showing that Galbreath’s periodic printing system is violative of the law.6
Further, Defendants had access to Galbreath’s work computer after her
termination. Defendants could have printed the unrecorded meeting minutes off
Galbreath’s work computer, signed them, and placed them in the permanent
meeting minute book. But when Hale County was audited almost three years after
Galbreath’s termination, the minute book was still incomplete. (Doc. 72-2, p. 25).
These same meeting minutes were still unrecorded at trial. (Doc. 79-1, p. 52).
Given that Defendants did not permanently record the missing meeting minutes, a

Also, Alabama’s Open Meetings Act does not put a specific time frame on
making meeting minutes available to the public. See Ala. Code § 36-25A-4 (1975).
Instead, they must be available “as soon as practicable after approval.” Id.
6

52

reasonable juror could have concluded that, if Galbreath did not perform under the
2012 Contract, it was not a material nonperformance such that it barred her
recovery. Defendants are not due judgment as a matter of law on Galbreath’s
breach of contract claim.7
III. NEW TRIAL
A. The New Trial Standard
A district court may, “on motion, grant a new trial on all or some of the
issues” upon a jury’s verdict “for any reason for which new trial has heretofore been
granted in an action at law in federal court.” FED. R. CIV. P. 59(a). A new trial has
been granted within the Eleventh Circuit for the reasons Defendants now seek.
See, e.g., Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299, 1312 (11th Cir.
2013) (explaining that a new trial may be granted if “the verdict is against the
great—not merely the greater—weight of the evidence”) (citations omitted); Gowski
v. Peake, 682 F.3d 1310 (11th Cir. 2012) (explaining that a new trial may be granted
when jury instructions provided are both contrary to law and prejudicial). Although
the standard for each of reason differs, they echo that a new trial should not be
granted “unless the error or circumstances at issue affected substantial rights or
caused substantial prejudice, so that it was not merely harmless.” Starbuck v. R.J.
Reynolds Tobacco Co., 102 F. Supp. 3d 1281, 1293 (M.D. Fla. 2015).
A district court is granted broad discretion in ruling on a motion for new trial.

To the extent Galbreath argues Defendants failed to perform under the 2012
Contract in her response, the Court does not address this argument as it is not a
ground upon which Defendants move for judgment as a matter of law.
7

53

See, e.g., Hessen v. Jaguar Cars, Inc., 915 F.2d 641, 644 (11th Cir. 1990). A ruling
on a motion for new trial is reviewed for abuse of discretion. Finnerty v. Stiefel
Labs., Inc., 756 F.3d 1310, 1322 (11th Cir. 2014). This being said, the remedy of
granting a motion for new trial “is sparingly used.” Johnson v. Spencer Press of Me.,
Inc., 364 F.3d 368, 375 (1st Cir. 2004) (citation omitted).
B. Whether Galbreath’s Mitigation Efforts Require a New Trial
Defendants maintain that the jury verdict is contrary to the evidence and law
as it relates to Galbreath’s mitigation of damages after her termination. (Doc. 80, p.
44). As in their motion for judgment as a matter of law on this issue, Defendants
contend that Galbreath admitted in her testimony that “she has not attempted to
apply for any work since” her termination. Id. Further, Defendants continue,
Galbreath offered “no testimony or evidence to establish that she has made
reasonable efforts to obtain work since her termination.” Id. at 45. Galbreath
argues that a new trial is improper on this issue for the same reasons judgment as a
matter of law is improper. (Doc. 96, p. 56).
The Eleventh Circuit has repeatedly warned, “‘[N]ew trials should not be
granted on evidentiary grounds unless, at a minimum, the verdict is against the
great—not merely the greater—weight of the evidence.’” Lamonica, 711 F.3d at
1212–13 (quoting St. Luke’s Cataract & Laser Inst., P.A. v. Sanderson, 573 F.3d
1186, 1200 n.16 (11th Cir. 2009)). This is so “because it is critical that a judge does
not merely substitute his judgment for that of the jury.” Lipphardt v. Durango
Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir. 2001). “If the jury

54

verdict is supported by the evidence, then it is immaterial that we or the district
judge would have arrived at the same verdict because it is not our place to
substitute our judgment for that of the jury.” Auto-Owners Ins. Co. v. Southeast
Floating Docks, Inc., 571 F.3d 1143, 1145 (11th Cir. 2009). A district court may
reexamine the evidence in ruling on a motion for new trial. Watts v. Great Atl. &
Pac. Tea Co., 842 F.2d 307, 310 (11th Cir. 1988). Even so, a court “should not
substitute [its] own credibility choices and inferences for the reasonable credibility
choices and inferences made by the jury.” Walls v. Button Gwinnett Bancopr., Inc.,
1 F.3d 1198, 1200 (11th Cir. 1993) (citation omitted).
As discussed supra, Defendants are in error contending Galbreath had any
duty to provide testimony or evidence establishing she made reasonable efforts to
obtain comparable work. Defendants alone bore the burden associated with this
affirmative defense. Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1348 (11th
Cir. 2000).
Additionally, the Court cannot conclude that the jury’s verdict is against the
great weight of the evidence simply because Galbreath did not “apply for any work”
since her termination. Galbreath did not have a duty to “apply for any work.” She
had a duty to make reasonable efforts to obtain “substantially comparable”
employment. Weaver, 922 F.2d at 1527. As discussed supra, the line of questioning
on cross-examination did not establish that Galbreath made no reasonable efforts to
obtain substantially comparable employment. The specific question was whether
she applied. This excludes any of the other legitimate, reasonable efforts that she

55

might have made that led to her answer that “there was no use in [her]” applying.
(Doc. 79, p. 217). But Defendants did not flesh out what Galbreath meant by her
response. Therefore, the Court cannot say that the jury’s verdict is against the
great weight of the evidence on this point; a new trial is unwarranted.
C. Whether a New Trial is Necessary on Galbreath’s Breach of Contract
Claim
Defendants also contend the jury’s verdict regarding Galbreath’s breach of
contract claim is against the great weight of the evidence. Defendants argue,
“[T]here is no dispute that plaintiff failed to keep and record the minutes of the
County Commission, which was a statutorily-required part of her job duties.” (Doc.
80, p. 45). Galbreath responds that a new trial is improper for the same reasons
judgment as a matter of law is improper on this point. (Doc. 96, p. 56).
The Court finds Defendants’ position unavailing. As discussed more
thoroughly above, Galbreath testified that she recorded the minutes from every
commission meeting. (Doc. 79, p. 138). These minutes were later keyed into her
work computer and kept as a “record in the county commission office.” (Doc. 79, pp.
138, 220). Galbreath presented such minutes from one of the meetings. (Doc. 72-1,
p. 54; Doc. 79, p. 133). Therefore, it is not, as Defendants contend, undisputed that
Galbreath failed to keep the meeting minutes.
As to recording the minutes kept, testimony differed between Galbreath and
one of her clerks as to the difficulties surrounding printing the meeting minutes
onto the oversized minute book pages and having commissioners available to sign
these printed pages. The Court will not determine which account is more credible

56

in deciding the present motion. Watts, 842 F.2d at 1145. Nonetheless, it is not as if
Galbreath never permanently recorded meeting minutes. Instead, meeting minutes
were missing for only the year preceding her termination. (Doc. 72-2, p. 24). This
corroborates her testimony that she would periodically print out the meeting
minutes due to the proclaimed difficulties in the printing process.
Moreover, Alabama’s Open Meeting Law does not articulate a specific
deadline for permanently recording meeting minutes. Instead, they are to “be made
available to the public as soon as practicable after approval.” Ala. Code § 36-25A-4
(1975). And the Alabama statute addressing county administrator duties does not
articulate a deadline for permanently recording minutes. Ala. Code § 11-3-18
(1975). The fact that no deadline is named does not excuse being completely
derelict in this duty. But complete dereliction of this duty is not the case. Instead,
the question is whether the one years’ missing minutes based on Galbreath’s
periodic printing because of purported issues is nonperformance of her duties under
the 2012 Contract. Neither statute prohibits Galbreath’s periodic permanent
recordation. Thus, the Court cannot say that the jury’s verdict on Galbreath’s
breach of contract claim is contrary to the great weight of the evidence or contrary
to law.
D. Whether a New Trial is Necessary Based on Jury Instructions
Defendants contend a new trial is due because the jury was charged that
“pre-termination due process required Defendants to provide [Galbreath] notice and
an opportunity to ‘defend herself’ (as opposed to an opportunity to ‘respond’) prior to

57

her termination.” (Doc. 80, p. 46). Defendants maintain that the “defend herself”
language does not square with the law and “imposed a more rigorous procedure
than is actually required.” Id. Defendants cite Harrison v. Willie, 132 F.3d 679
(11th Cir. 1998) and McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) in support of
this proposition. Galbreath responds that the Court’s instruction “comports with
Eleventh Circuit precedent,” citing Harris v. Birmingham Board of Education, 817
F.2d 1525 (11th Cir. 1987). (Doc. 96, p. 56).
“A district court has broad discretion in formulating jury instructions.” Toole
v. Baxter Healthcare Corp., 235 F.3d 1307, 1313 (11th Cir. 2000) (citing Christopher
v. Cutter Laboratories, 53 F.3d 1184, 1190 (11th Cir. 1995)). Indeed, a trial judge “is
not bound to parrot either counsel or appellate courts” in charging a jury. Bass v.
Int’l Bhd. of Bollermakers, 630 F.2d 1058, 1061 (5th Cir. 1980). A trial judge’s “wide
discretion permits him to select his own words and to charge in his own style” as
long as the substance of the law is correctly communicated. Id. Unsurprisingly so,
“[m]otions for new trial on the basis of erroneous and prejudicial jury instructions
are committed to the discretion of the trial court and reviewed to ascertain whether
there has been a clear abuse of that discretion.” Toole, 235 F.3d at 1313. Thus, a
new trial motion should be granted when jury instructions do “not accurately reflect
the law in such a way that we are left with a substantial and ineradicable doubt as
to whether the jury was properly guided in its deliberations.” Cleveland v. Home
Shopping Network, Inc., 369 F.3d 1189, 1196 (11th Cir. 2004).
An alleged error in wording of a jury charge is not read in a vacuum. Instead,

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the contested charge must be considered in the context of the entire jury charge.
“Only if the trial judge’s instructions to the jury, taken as a whole, give a misleading
impression or inadequate understanding of the law and the issues to be resolved, is
a new trial required.” Bass, 630 F.2d at 1062; see also Merchants Nat. Bank of
Mobile v. United States, 878 F.2d 1382, 1388 (11th Cir. 1989) (“[T]he trial court’s
refusal to give a requested instruction is not error where the substance of that
proposed instruction was covered by another instruction which was given.”) An
error in a jury instruction that does not influence a verdict is harmless and an
improper ground for new trial. See Sanders v. New York City Human Res. Admin.,
361 F.3d 749, 758 (2d Cir. 2004).
As it relates to notice and an opportunity to respond under Galbreath’s due
process claim, the Court instructed the jury as follows:
For the third element, you must determine whether the Hale County
Commission and Hale County provided Plaintiff with both notice of the
reasons for her termination and an opportunity to respond and defend
herself before discharging her from her job as county administrator.
Notice and an opportunity to respond is not a mini-trial and need not
definitively resolve the propriety of the proposed termination. Instead,
notice and an opportunity to respond serve as an initial check against
mistaken termination decisions. But notice, either oral or written,
must inform an employee of the charges against her and an
explanation of the employer’s evidence against her.
Additionally, the opportunity to respond must afford the employee an
opportunity to defend herself against the charges brought against her
after receiving notice.
(Doc. 79-1, pp. 110–11).
To defend is nothing more than to “attempt to disprove or invalidate” a claim
with one’s side of the story. See THE AMERICAN HERITAGE DICTIONARY 475 (5th ed.

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2011). To instruct a jury of this does not conflict with the law of this circuit.
Instead, it squares with what the Eleventh Circuit evaluated a pre-termination
hearing provided in one of the cases Defendants cite. See Harrison, 132 F.3d at 684
(“Plaintiff had several opportunities to be heard. All three of his initial statements
and the two separate predisciplinary conferences provided Plaintiff the opportunity
to present evidence in his defense—to tell his side of the story.”) (emphasis
supplied). See also Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 13 (1950)
(“An elementary and fundamental requirement of due process … is notice
reasonably calculated, under all circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their objections.”)
(emphasis supplied); Allred v. City of Carbon Hill, No. 6:13-cv-00930-LSC, 2013
U.S. Dist. LEXIS 144570, 2013 WL 5532719, at *26 (N.D. Ala. Oct. 7, 2013)
(evaluating whether an employee was afforded a pre-termination “opportunity to
defend himself” in deciding a motion to dismiss). Further, in the other case
Defendants cite, the Eleventh Circuit concluded the employee in question received
all the process due under Loudermill. McKinney, 20 F.3d at 1561. “[H]e received
written notice of the charges against him; at the Board hearing, he also heard an
explanation of the Board’s evidence; finally, with the assistance of counsel, he had
the opportunity to present his side of the story through witnesses, evidence, and
argument.” Id. (emphasis supplied). This language illustrates that due process
envisions an opportunity to do more than simply answer “yes” or “no” to the veracity
of a charge. It is an opportunity to defend against a mistaken decision with one’s

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side of the story. In this case, the Court instructed the jury in accordance with this.
Further, it appears that Defendants identify the Court’s use of the word
“defend” with something more than a mini-trial but apparently less than a full
evidentiary hearing. This is in error. The Court explicitly instructed the jury that a
mini-trial was not required to satisfy due process and the truth of the charges need
not be definitively determined, although Galbreath could respond and defend
herself. Thus, when the term “defend” is read in context of the entire instruction, it
meant nothing more than Galbreath was allowed to provide her side of the story,
which was not misleading. Bass, 630 F.2d at 1062. Because the term “defend” put
no greater responsibility on Defendants regarding the pre-termination hearing than
the law required, it was not prejudicial and is no basis for a new trial.8
IV. CONCLUSION
For the reasons explained above, the Court DENIES Defendants’ Renewed
Motion for Judgment as a Matter of Law and, Alternatively, Motion for New Trial
(Doc. 80).
DONE and ORDERED this 8th day of August, 2017.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE

Since Defendants’ case law shows that they are not due a new trial, the Court does
not draw support from or address Galbreath’s citation to Harris v. Birmingham
Board of Education, 817 F.2d 1525 (11th Cir. 1987). Even so, the Court finds it
questionable that Harris applies since that case evaluated a post-termination
hearing.
8

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