United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
W. KEITH WATKINS, Chief District Judge.
Plaintiff James Kyle Tindol, a State of Alabama Merit System employee, sues his employer, Defendant Alabama Department of Revenue ("ADOR"), the ADOR Commissioner, Julie Magee, the Alabama State Personnel Department ("SPD"), and SPD's Director, Jackie Graham, for alleged violations of his federal constitutional rights to equal protection and procedural due process, and for negligence and breach of contract under Alabama law. As Mr. Tindol sees things, Ms. Magee unjustly denied him a recommended promotion for which he was qualified, and Ms. Graham denied him a hearing concerning the wrongful non-promotion. Defendants' stance is that Mr. Tindol had no legally cognizable right to a promotion within the Merit System and, under the circumstances, no right to a hearing concerning his non-promotion.
Before the court are motions for summary judgment filed by ADOR and Ms. Magee in her official capacity (Docs. # 30, 31), Ms. Magee and Ms. Graham in their individual capacities (Docs. # 32, 33, 39, 40), and SPD and Ms. Graham in her official capacity. (Docs. # 34, 38). Those motions have been fully briefed. (Docs. # 47, 48, 50.) Mr. Tindol has also filed a motion for partial summary judgment on his procedural due process claim (Docs. # 35, 36, 37), which has also been fully briefed (Docs. # 45, 46, 49). Also pending is Defendants' collective objection and motion to strike Mr. Tindol's contentions in the proposed pretrial order (Docs. # 58, 64).
Upon careful consideration of the parties' arguments, the evidence, and relevant law, the court concludes that Defendants' motions for summary judgment are due to be granted, Mr. Tindol's motion for partial summary judgment is due to be denied, and Defendants' objections and motion to strike are due to be overruled as moot and denied as moot, respectively.
I. JURISDICTION AND VENUE
The court exercises subject-matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. Personal jurisdiction and venue are uncontested.
II. STANDARD OF REVIEW
To succeed on summary judgment, the movant must demonstrate "that there is no genuine dispute as to any material fact and [he] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The court must view the evidence and the inferences from that evidence in the light most favorable to the nonmovant. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).
The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This responsibility includes identifying the portions of the record illustrating the absence of a genuine dispute of material fact. Id.; Fed.R.Civ.P. 56(c)(1)(A). Or, the movant can assert, without citing the record, that the nonmoving party "cannot produce admissible evidence to support" a material fact. Fed.R.Civ.P. 56(c)(1)(B). If the movant meets its burden, the burden shifts to the nonmoving party to establish-with evidence beyond the pleadings-that a genuine dispute material to each of its claims for relief exists. Celotex, 477 U.S. at 324. A genuine dispute of material fact exists when the nonmoving party produces evidence allowing a reasonable fact finder to return a verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001).
The mere filing of cross motions for summary judgment does not warrant the entry of judgment, but it is often "probative of the nonexistence of a factual dispute." Ga. State Conference of NAACP v. Fayette Cnty. Bd. of Comm'rs, ___ F.3d ___, ___, 2015 WL 75269, at *7 (11th Cir. 2015) (citing Shook v. United States, 713 F.2d 662, 665 (11th Cir. 1983) (internal quotation marks omitted)). Indeed, as acknowledged by the parties at the pretrial conference, there are no disputed facts that are material to the court's ultimate rulings. Mr. Tindol's claims depend upon the interpretation and application of federal and state law. A full account of the parties' positions on certain non-material, factual events is set out herein to provide complete context to the narrative. Also, a summary of the statutory and regulatory background of state merit system employment is set forth to frame the discussion of the legal questions at issue.
A. Relevant State Statutory and Administrative Law
1. State Employment in the Merit System
In 1939, Alabama passed the Merit System Act, Ala. Code § 36-26-1 et seq., for the purpose of "assur[ing] to all citizens of demonstrated capacity, ability[, ] and training an equal opportunity to compete for service with the State of Alabama." Id. at § 36-26-3. The Act created the SPD, run by a Director, id. at § 36-26-4, and the State Personnel Board ("SPB") consisting of five members, id. at § 36-26-5. The Act empowers the Director to recommend the promulgation of rules to carry out the Act. Id. at § 36-26-9. Many such rules, discussed infra, have been promulgated, and they "apply to all positions in the classified service." Ala. Admin. Code r. 670-X-2-.01.
The Act categorizes State employees into exempt, unclassified, and classified service positions. Classified service includes most state employees. See id. at § 36-26-10(d). The Act requires the Director to "conduct tests to establish employment registers for the various classes of positions in the classified service." Id. at § 36-26-15(a). Thus, the SPD receives applications from interested candidates and subjects the candidates to examinations, if the candidates meet minimum qualifications for the jobs they seek. See Ala. Admin. Code r. 670-X-9-.01(1)-(3). Candidates are rated by the SPD "based upon a weighted average of the various parts of the total examination." Ala. Admin. Code r. 670-X-9-.01(6). Applicants with passing grades are placed on a register for the position sought; a register is simply a list of all minimally qualified applicants for a position. Ala. Admin. Code r. 670-X-9-.02(1); Ala. Code § 36-26-2(5).
The Director maintains promotional registers, see Ala. Admin. Code r. 670-X-9-.02(2), which comprise existing merit system employees seeking promotion, Ala. Admin. Code r. 670-X-3-.01(c)(2), as well as open registers, which include the names of candidates outside the merit system who are competing with merit system employees for positions, see Ala. Admin. Code r. 670-X-3-.01(c)(1).
The SPD ranks candidates on registers by either identifying the candidates in order of their scores, from highest to lowest or by "banding" candidates, a process that involves the use of statistics to place candidates into a common group or band where there are statistically insignificant differences in their scores. (Graham Aff. at ¶ 16.)
When a vacancy within a state agency opens, and the agency's appointing authority seeks to fill the vacancy through the "regular appointment" process, Ala. Admin. Code. r. 670-X-3.01(b)(1),  the agency's appointing authority asks the SPD Director for a "certification of eligibles." Ala. Admin. Code r. 670-X-9-.03(1)-(2). An SPD-issued certification of eligibles is the top ten names on the register plus any ties; hence, a certification of eligibles may contain far more than ten persons' names. (Graham Aff. at ¶ 18.)
The SPB Rules provide that
Within the discretion of the Director, vacancies in classified positions shall be filled, insofar as practicable, by promotion from among regular employees holding positions in the classified service. Promotion shall be based upon merit and competition and shall be made in accordance with the procedures established by those sections of these rules dealing with promotional appointments.
Ala. Admin. Code r. 670-X-9-.04(1). Rule 670-X-9-.04(1) states clearly that vacancies are ideally filled by promotion from within the classified service, but the Director has discretion to use open registers when furnishing registers to agencies for the filling of vacancies.
Once a person is selected and hired into the classified service or promoted into a new position within the classified service, he or she must complete a probationary "working test" period before attaining merit system status. Ala. Admin. Code r. 670-X-10-.01. After satisfactorily completing the probationary period, he or she attains a property interest in his or her state employment.
Pursuant to the Merit System Act, there are also job classification titles and assigned pay grades for every position within the classified service. Eligibility for "steps" through the pay grade is based on annual employee performance appraisal ratings. An employee progresses through his pay grade until he reaches the top of the pay grade or is promoted into a position with a higher pay grade. (Graham Aff. at ¶¶ 7-8.)
2. Entitlement to a Hearing Before the SPB
The SPB is tasked with numerous duties that assist the Director in the administration of the Merit System, including conducting public appellate hearings for state employees who are dismissed from their employment by a state agency or whose discipline or removal is requested by any Alabama officer, citizen, or taxpayer. Id. at § 36-26-27(a)-(b); see also Ala. Admin. Code r. 670-X-18-.02. Critical to the dispute here, neither the Merit System Act nor the SPB Rules grant state employees the right to a hearing before the SPB or the Director when they are denied a promotion by a state agency.
The only exception to that rule is that a person may obtain a special hearing before the SPB if there is reason to believe that he or she has been discriminated against on the basis of certain protected characteristics or activities in violation of federal law. See Ala. Admin. Code r. 670-X-4-.01; Ala. Admin. Code r. 670-X-4-.03. The SPB adopted its ruling prohibiting discrimination several decades ago in response to a discrimination lawsuit, and the SPB "has reaffirmed [its] narrow interpretation of the scope" of Rule 670-X-4-.03 "numerous times." (Graham Aff. at ¶ 36.)
For example, in one instance a state employee sought a hearing before the SPB based upon her allegation that she was denied a promotion because of nepotism within her agency. See SPB Recommendation and Order in Richbourg v. Kennedy (Doc. # 38-3). The SPB ruled that "nepotism is not considered a non-merit factor' for purposes of SPD Rules 670-X-4-.01-03" and that it therefore lacked jurisdiction to hear an appeal based on a non-promotion motivated by nepotism. (Doc. # 38-3, at 18-20; 22-23.) The Circuit Court of Montgomery County, Alabama, dismissed a petition for review of that interpretation of the SPB Rules. (Doc. # 38-4.)
1. Mr. Tindol's Application and Hire as Programmer
Since October 16, 2010, Mr. Tindol has been employed by the Alabama Department of Revenue in the IT Division. Before and during some of Mr. Tindol's tenure, his mother, Holley Tindol, also worked for the Department of Revenue as the Assistant Director of the IT Division. Kenneth Ball is the former Director of the IT Division. Mr. Ball chose Holley Tindol for the assistant director position in 2008 and intended to train her to take over his job upon his retirement. (Ball Dep. at 289-90.)
Mr. Tindol was interested in state employment and first applied to work for the State of Alabama as a programmer in 2009, but was not hired. A programmer is an entry-level IT position. Mr. Tindol applied again for programmer analyst associate, a higher-level position, in 2010 and was placed on the open register for the position. About the same time, he completed his college degree at Faulkner University.
In late 2010, Mr. Ball learned that he could hire four programmers to work in ADOR's Revenue Integrated Tax System ("RITS"). He intended to place two hires in RITS production and two in RITS discovery. Holley Tindol informed Mr. Ball that her son would be on the open register of candidates for programmer. Mr. Ball discussed Mr. Tindol's situation and potential hire with the acting Commissioner at the time, Cynthia Underwood, and ADOR Secretary, Lewis Easterly. Neither Ms. Underwood nor Mr. Easterly objected to Mr. Tindol working at ADOR so long as Holley Tindol did not supervise him. (Ball Aff. at ¶ 15.) Mr. Easterly determined that Holley Tindol should not participate in the interview of her son. (Ball Dec. at ¶ 15.) Hence, she participated in most of the interviews of fifty-five to sixty other candidates, but not in Mr. Tindol's interview. (H. Tindol Dep. at 117.) Mr. Ball participated in Mr. Tindol's interview only, in Holley Tindol's stead.
Mr. Ball and Holley Tindol chose two IT team leads, Angela Free and Matt Dyer, to assist in the candidate interview process with them and to recommend their ranked preference of candidates. Holley Tindol acknowledges that, before Mr. Tindol was interviewed, Ms. Free and Mr. Dyer questioned her about the propriety of Mr. Tindol being interviewed and hired to work in the IT Division under his mother. According to Defendants, there was disagreement among the four about Mr. Tindol's merits vis-à-vis the other candidates, but Mr. Ball recalls that Mr. Tindol was actually sixth on Ms. Free and Mr. Dyer's list (Ball Dep. at 110). Mr. Ball says that one of the two candidates ahead of Mr. Tindol declined a job offer and another was rendered ineligible by Mr. Ball because the candidate had not passed a programming test administered as part of the interview. Ultimately, Mr. Ball chose Mr. Tindol along with three other hires-JoLynn DeMorrow, G. Wade Lewis, and Joshua Stacey. Mr. Tindol was assigned to the RITS Discovery Unit.
Before accepting the position and reporting to work in October 2010, Mr. Tindol consulted with Mr. Ball about his ability to advance within ADOR. Mr. Tindol had a similar offer to work as a programmer with the Department of Youth Services. Mr. Tindol says that he chose to work at ADOR as opposed to the Department of Youth Services because Mr. Ball represented to him that ADOR has a much larger IT Division than most agencies and there are more opportunities for promotion there. When Mr. Tindol was hired, Mr. Ball restructured the IT Division so as to remove the possibility that Holley Tindol would oversee her son. Under the adjusted arrangement, Mr. Tindol reported to Thomas Farris, Jr., who reported to Mr. Ball. The parties strenuously dispute whether Holley Tindol remained in a position of authority over Mr. Farris and Mr. Tindol. ( Compare Ball Dec. at ¶ 25 ("At no time during my tenure did Ms. Tindol supervise Mr. Tindol.... Mr. Farris was Mr. Tindol's direct report. Mr Farris, in turn, reported to me."), with Linda Ellis Aff. at ¶¶ 8, 10 ("Essentially, [Holley Tindol] was second in command of the IT Division" when Mr. Tindol was hired, and "because she served as Assistant Director of the entire division, Kyle Tindol was in his mother's chain of command.").) Defendants' position is that, even if Holley Tindol was removed from the direct supervision of Mr. Farris or her son, she was nonetheless a superior of both by virtue of her position as second-in-command beneath Mr. Ball.
When hired, Mr. Tindol received ADOR's Employee Handbook and agreed to read and follow it. (Doc. # 30-8.) The Employee Handbook contains the following language in its introduction:
DISCLAIMER: NOTHING IN THIS HANDBOOK SHOULD BE CONSTRUED TO PROMISE FUTURE EMPLOYMENT. FURTHER, NO MANAGEMENT MEMBER HAS THE RIGHT TO MAKE COMMITMENTS THAT NEGATE THE HANDBOOK. EMPLOYEES ARE RETAINED BASED ON THE MISSION NEEDS OF [ADOR] AND THE INDIVIDUAL'S ABILITY TO PERFORM HIS/HER JOB IN A COMPETENT AND ETHICAL MANNER.
(Doc. # 30-9, at 8.) Mr. Tindol testifies that he "didn't really think" that the Employee Handbook constituted any kind of contract. (Pl's Dep. at 107.) Mr. Tindol does not dispute that Mr. Ball never promised him a promotion at any certain time in the future. (Pl.'s Dep. at 92.)
2. Promulgation of ADOR Anti-Nepotism Policy
In January 2011, Governor Robert Bentley appointed Julie Magee as ADOR Commissioner. When Ms. Magee assumed her position, Ms. Free complained to her that Mr. Tindol had been hired on the basis of nepotism. Ms. Magee responded by creating a working group comprising ADOR employees to investigate other state agencies' nepotism policies and to draft a formal anti-nepotism policy for ADOR. (Magee Aff. at ¶ 6.) The group determined that an anti-nepotism policy should be implemented in order to avoid the potential for or the appearance of favoritism, conflicts of interest, or workplace disruptions. (Magee Aff. at ¶ 6.)
On June 24, 2011, Ms. Magee sent an interoffice memorandum to her employees informing them of a departmental anti-nepotism policy ("the Policy") effective July 1, 2011. The Policy provides that "applicants will not be hired, nor will employees be promoted or transferred into the same division where a relative is already employed." (Doc. # 30-1, at 4.) It also prohibits an employee from participating in the hiring or reassignment of a relative or in the supervision of any relative. (Doc. # 30-1, at 4.) The Policy contains the following "grandfather" proviso:
Existing relationships as of July 1, 2011, ... will be grandfathered for current work assignments and promotions that do not result in one relative supervising the other. However, the new policy will still be enforced regarding relatives not participating in the hiring, evaluation, reassignment, promotion, supervision, or discipline of a relative or member of a household.
(Doc. # 30-1, at 4.) The Policy defines "Chain of Command" as "[a] system whereby authority passes down from the top through a series of supervisory positions in which each is accountable to the one directly superior." (Doc. # 30-1, at 3.)
As required by the Policy, Mr. Tindol completed a form disclosing his relationship to his mother. (Doc. # 30-2.) He met with Mr. Farris and Mr. Ball to discuss the Policy's impact upon his situation. Mr. Tindol was assured by Mr. Ball that "[the Policy] would have no impact on [him] at all" because his mother was not in his supervisory chain of command, nor would she be if Mr. Tindol was promoted. (Ball Dep. at 236.) Mr. Tindol believed that the Policy grandfathered his existing situation, so long as any work assignments and promotions did not result in his being supervised by his mother. Mr. Tindol never received similar assurances from Ms. Magee.
3. Denial of Promotions in 2012 and 2013
During his tenure as a programmer, Mr. Tindol provided a quality of work two skill levels above the level required of a programmer. (Ball Dec. at ¶ 27.) Mr. Farris gave Mr. Tindol "glowing reports" and "excellent performance appraisals, " and depended upon Mr. Tindol's knowledge about RITS discovery. (Ball Dec. at ¶ 27.) Mr. Tindol says that he assisted Mr. Farris by reviewing other people's work and acted as second-in-command in Mr. Farris's absence. (Pl.'s Dep. at 121, 128.)
In May 2012, Mr. Ball recommended to Ms. Magee that Mr. Tindol be promoted to programmer analyst associate. (Doc. # 37-9, at 2.) Instead, Ms. Magee appointed two other persons to the vacancies. Again in April 2013 and May 2013, Ms. Magee appointed someone other than Mr. Tindol to a programmer analyst associate vacancy. In each instance, SPD furnished ADOR with a Certification of Eligibles from an open register, per ADOR's request. (Graham Aff. at ¶¶ 20, 23, 24.) In each instance, Mr. Tindol was in Band 1 along with several other eligible candidates. Ms. Magee says that she denied Mr. Ball's recommendation to promote Mr. Tindol because she believed that a promotion would violate ADOR's nepotism policy insofar as Holley Tindol would be in Mr. Tindol's chain of command because she was the Assistant Director of the IT Division. (Magee Aff. at ¶ 8 ("In my view, [Holley Tindol was] in the chain of command for every employee of the IT Division except its Director.").)
Other persons who disclosed familial relationships have been promoted within ADOR since the promulgation of the nepotism policy, but only where their promotions did not result in their being in the chain of command of a family member. (Ellis Aff. at ¶ 15 (citing Aff. Ex. C).) Ms. Magee maintains that Mr. Tindol's potential promotion to programmer analyst associate was not "grandfathered by" the Policy because any promotion, after the promulgation of the Policy, would result in a new Policy violation. (Magee Dep. at 52.) Mr. Tindol holds fast, however, arguing that his promotion would not have violated the Policy because he would have remained in the same IT division with the same reporting structure, outside of Holley Tindol's chain of command., 
Furthermore, Mr. Tindol cites the absence of any nepotism conflict during the period that he was denied a promotion by Ms. Magee. Effective March 5, 2012, Ms. Magee assigned Holley Tindol indefinitely to the ISD Division of the Alabama Department of Finance because ISD needed her assistance and because ADOR "had a very volatile situation in the IT Department" between Holley Tindol and Ms. Free. (Magee Dep. at 23.) Mr. Tindol maintains that his mother had no management responsibilities with ADOR at any time after March 2, 2012. Ms. Magee explains Mr. Tindol's nepotism conflict still existed notwithstanding Holley Tindol's temporary assignment outside of ADOR because Holley Tindol retained her title and position in ADOR's IT Division.
In his summary judgment responsive brief, Mr. Tindol claims that
On October 1, 2011, James Lucy was promoted from the position of Revenue Division Director in Individual and Corporate Division from the Revenue Manager II position in that division. His daughter, Brittni Lucy Potter, who was working in the REII position in the same division was promoted to the REIII position and transferred to a newly created position in the Discovery unit in the Commissioner's office. That transfer was effectuated to allow for the promotion of Mr. Lucy so that the nepotism policy would not have been violated. Brittni Lucy was not required to interview or compete for that promotion.
(Doc. # 47 at 15 (internal citations to record omitted).) Mr. Tindol asserts that ADOR's accommodation of the Lucy family members is evidence that others have been treated more favorably and that the Policy has been applied "solely" against him. (Doc. # 47, at 16.) He also attempts to alter his equal protection claim, through briefing, to assert sex discrimination.
4. Request for SPB Hearing in 2012
In August 2012 after Mr. Tindol was first informed that Ms. Magee had denied Mr. Ball's first recommended promotion, he submitted a memorandum complaining to Ms. Magee about the decision not to promote him and requesting that she reconsider. (Doc. # 33-13.) He also sent the memorandum to Ms. Graham and requested that she and the SPD review Ms. Magee's decision. Ms. Magee says she did not respond to Mr. Tindol's memorandum because ADOR has 1, 200 employees and Mr. Tindol did not follow the procedure for filing a complaint through the proper chain of command. (Magee Dep. at 54-55.) Mr. Tindol alleges that Ms. Graham "refused to provide [him] with access to the appellate process" and "ratified" Ms. Magee's decision not to promote Mr. Tindol. (Compl. at ¶ 36.)
Ms. Graham conveyed Mr. Tindol's request to an SPD administrative law judge, Randy C. Salle, who responded to Mr. Tindol's counsel in writing in December 2012, explaining that no SPB rule entitled a state employee to a hearing before the SPB to decide a dispute between the employee and his supervisor. (Doc. # 33-16.) The only exception identified in the ALJ's letter was for situations in which an employee had reason to believe he had been "discriminated against because of religious or political opinions or affiliations or race, sex, national origin, age, or handicap." (Doc. # 33-16 (citing ...