United States District Court, S.D. Alabama, Northern Division
ORDER AND MEMORANDUM OPINION
matter is before the Court on the parties' cross motions
for summary judgment. Defendants Hale County, Alabama; Hale
County, Alabama Commission; and Probate Judge Arthur Crawford
(collectively, “Defendants”) filed a Motion for
Summary Judgment (Doc. 25), a Brief in Support of Motion for
Summary Judgment (Doc. 26), a Reply Brief in support (Doc.
39), and a Response in Opposition to Plaintiff Tricia
Galbreath's (“Plaintiff”) Motion (Doc. 33).
Plaintiff filed a Motion for Partial Summary Judgment (Doc.
28), a Brief in Support of Motion for Summary Judgment (Doc.
29), a Reply Brief in support (Doc. 36), and a Response in
Opposition to Defendants' Motion (Doc. 34). For the
reasons explained below, Defendants' Motion for Summary
Judgment is GRANTED, in part, and DENIED, in part, and
Plaintiff's Motion for Partial Summary Judgment is
matter arises out of Plaintiff's termination from the
Hale County Commission as the County Administrator. The
Complaint asserts eight counts: (1) Defendants deprived
Plaintiff of a “constitutionally protected property
interest in her employment as County Administrator”
without due process as required by the Fourteenth Amendment
in violation of 42 U.S.C. § 1983; (2) Defendants
violated Plaintiff's right to equal protection under the
Fourteenth Amendment in violation of 42 U.S.C. § 1983;
(3) Defendants terminated Plaintiff based on her race in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq.; (4) Defendant
Hale County and Defendant Hale County Commission breached
their employment contract with Plaintiff in violation of
state law; (5) Defendant Hale County and Defendant Hale
County Commission wrongfully terminated Plaintiff in
violation of state law; (6) Judge Crawford defamed Plaintiff
in violation of state law; (7) Defendants placed a
“stigma plus” on Plaintiff and did not allow her
the opportunity to clear her name in accordance with the Due
Process Clause of the Fourteenth Amendment in violation of 42
U.S.C. § 1983; and (8) Defendants discriminated against
Plaintiff based on her age in violation of the Age
Discrimination in Employment Act, 29 U.S.C. §§ 621
et seq. (Doc. 1).
filed a motion to dismiss certain parts of the Complaint.
(Doc. 7). The Court granted in part Defendants' Motion to
Dismiss the Complaint as follows: (1) Counts 1, 2, and 7 were
dismissed against Judge Crawford in his official capacity
only; (2) Count 6 was dismissed against Judge
Crawford in his individual capacity only; and (3)
Counts 3 and 8 were dismissed against Judge Crawford
only in their entirety. (Doc. 18). The parties
subsequently filed cross motions for summary judgment,
Defendants on all counts and Plaintiff on Counts 1 and 4.
Each party briefed their position and provided evidentiary
support thereof to the Court. This matter is now ripe for
Hale County Commission is an elected body of five
individuals, headed up by the Probate Judge of Hale County
who also serves as the Chairman of the Commission. Plaintiff,
a Caucasian female, began working for the Hale County
Commission in 2004 as the County Administrator, after coming
out of retirement to take the position. After working several
months for Hale County, Plaintiff entered into an employment
contract (“the 2005 Contract”) with Hale County,
which was signed by the then Commission Chairman, Judge
Leland Avery, and Plaintiff. (Doc. 27-3, pp. 1-3). The
initial term of the contract was for October 1, 2005, through
September 20, 2010. Id. at 1. Plaintiff's duties
included those commonly discharged by the County
Administrator and others the law required. Id. In
addition to the 2005 contract, Plaintiff was provided with
and signed for a copy of the Hale County Personnel Policy
(“the Policy”). (Doc. 30-1, p. 25:2-7; Doc. 27-5,
November 25, 2008, Plaintiff received a second employment
contract (“the 2008 Contract”), which extended
her employment term through November 25, 2013. (Doc. 27-3,
pp. 16-18). The 2008 Contract was substantially the same as
the 2005 Contract, but the 2008 contract included a cut in
salary to $21, 000.00. Id. at 1. The cut in salary
was to facilitate Plaintiff's ability to draw payments
from her retirement with the Alabama Retirement System while
continuing to work, after she decided not to retire from Hale
County in 2008. (Doc. 27-2, p. 12:14-23).
November 2012 election cycle, Judge Crawford defeated
incumbent candidate Judge Avery in the run for Hale County
Probate Judge. (Doc. 27-7, p. 2: 11-16). Also, Donald
Anderson was elected as a commissioner during this election
cycle. (Doc. 27-13, p. 2:6-8). Judge Crawford was to assume
his new position on January 1, 2013. (Doc. 27-7, p. 3: 4-6).
Before then, an amendment to the 2008 Contract (“the
2012 Amendment”) was executed. Id. at 3:10-18.
The 2012 Amendment made the following material amendments to
the 2008 Contract: (1) affording Plaintiff all of the rights,
privileges, and benefits that Hale County employees have, to
include but not limited to, any and all hospital, surgical,
dental, and/or any other medical benefit, under the benefit
plan for county employees; (2) requiring unanimous consent of
the Hale County Commission before Plaintiff could be
terminated; and (3) extending the term of the 2008 Contract
through November 25, 2018. (Doc. 27-3, pp. 21-24). Both
Plaintiff and Judge Avery signed the 2012
18, 2013, the Hale County Commission held a commission
meeting. The published agenda indicated that one of the
general session topics was “personnel, ” to
include the County Administrator (Plaintiff) and County
Attorney (William Holmes). (Doc. 30-10, p. 2). The agenda
also indicated that an executive session would take place to
discuss threatening litigation. Id. Beyond the
agenda, Judge Crawford testified that he was unaware of any
notice being provided to Plaintiff that she would be
disciplined in the executive session or terminated in the
general session. (Doc. 30-11, p. 12:4-9; p. 15:10-14).
the Commission discussed ongoing conflict issues with the
County Attorney in the executive session, Judge Crawford
provided Plaintiff with a self-prepared employee disciplinary
form and read the form aloud. (Doc. 30-11, p. 4:2- 18). The
disciplinary form outlined alleged issues pertaining to
Plaintiff: (1) chronic absenteeism and absent without
authorized leave; (2) failure to carry out duties of the job;
(3) failure to work cooperatively, cheerfully, and
productively with others; (4) use of foul language in the
workplace; (5) failure to meet the standard of appropriate
attire on the job; and (6) travel without the approval of the
commission. (Doc. 30-13, pp. 2-3). The entire commission,
Plaintiff, and the County Attorney were present for the
reading. (Doc. 30-11, p. 3:16-20). As Judge Crawford read the
form, Plaintiff made continued attempts to interrupt and was
told that she could not speak at that time. (Doc. 27-2, pp.
135:18-136:2). After Judge Crawford read the form, Plaintiff
was offered an opportunity to respond; Judge Crawford
testified that Plaintiff only responded “no
comment.” (Doc. 30-11, p. 4:19-23). No discussion as to
Plaintiff's termination transpired during the executive
Hale County Commission returned to general session, wherein
Commissioner Anderson moved to terminate Plaintiff's
contract. (Doc. 30-9, p. 3). Commissioner Hamilton seconded
the motion. (Doc. 30-9, p.3). Judge Crawford, Commissioner
Hamilton, and Commissioner Anderson voted in favor of
Plaintiff's termination. Id. Commissioner Rogers
voted against Plaintiff's termination, and Commissioner
Rhodes abstained from the vote. Id. Given the
majority approval, the vote carried and Plaintiff's
employment was terminated. Id. Each proponent of
Plaintiff's termination offered his own reasons for
voting in favor of termination and provided these reasons in
Judge Crawford, he offered five reasons. See (Doc.
27-20). First, he declared that Plaintiff's duties
included preparing commission meeting minutes and Plaintiff
failed to do so. Id. at 1. However, Plaintiff
testified that she completed the meeting minutes and put them
in the appropriate book for the commissioners to sign. (Doc.
30-1, p. 22:15-23). Carol Robinson also testified that
electronic copies of the meeting minutes were discovered on
Plaintiff's work computer after her termination. (Doc.
35-8, pp. 3:19-4:8). Judge Crawford also declared that he
believed Plaintiff was absent from work on a regular basis
based on his observations and reports of other County
employees working closely with Plaintiff. (Doc. 27-20, p. 1).
On the other hand, Plaintiff testified that she had no set
work schedule and would come in and work until the job was
done, throughout her tenure with Hale County. (Doc. 30-1, p.
13:15-20). Judge Avery also offered a declaration supporting
Plaintiff's work schedule position. (Doc. 35-5, p. 1).
Judge Crawford stated that he received reports from Russell
Weeden, the Hale County Emergency Management Director, that
Plaintiff made threats to cut Weeden's budget if he did
not add Plaintiff as a line item in his budget. (Doc. 27-20,
p. 2). But Plaintiff denied this accusation in her
deposition. (Doc. 35-2, p. 44:13-16). Third, Judge Crawford
declared that Plaintiff was responsible for managing and
directing Hale County contracts. (Doc. 27-20, p. 2). Judge
Crawford believed that, based on information he possessed,
Plaintiff failed to meet legal requirements pertaining to
said contracts on several occasions. Id. Plaintiff,
however, testified that the Commission Chairman was the one
responsible for the contract duties. (Doc. 35-2, p. 39:2-23).
Fourth, Judge Crawford received reports from other Hale
County employees that Plaintiff dressed in an unprofessional
manner while at work. Id. But at least two employees
testified that Hale County had no set dress code. (Doc. 35-8,
p. 7:8-10; Doc. 35-9, p. 6:13-15). Fifth, Judge Crawford
declared that he believed Plaintiff regularly took
unauthorized trips and then sought reimbursement from Hale
County for said trips. Id. Conversely, Plaintiff
testified that she either received prior approval for said
trips or was accompanied by other commissioners, so she
refutes whether her attendance was unauthorized. (Doc. 35-2,
p. 76; Doc. 35-2, pp. 65:8-10, 68:16-20).
Hamilton and Commissioner Anderson also offered their own
reasons for voting to terminate Plaintiff's employment.
(Doc. 27-14; Doc. 27-21). The majority of the reasons
Commissioner Hamilton and Commissioner Anderson offered
overlap with Judge Crawford's. To the extent they differ,
the following is provided. First, Commissioner Hamilton felt
that Plaintiff was rude and used profanity with him in 2011
when he asked Plaintiff to retrieve documentation regarding
county contracts. (Doc. 27-14, p. 2). After the exchange,
Commissioner Hamilton wrote Plaintiff a letter documenting
the incident. Id. at 3. But Plaintiff testified that
she was unaware that the word she used with Commissioner
Hamilton was profanity. (Doc. 35-2, p. 37: 21-22). Further,
Plaintiff testified that she did not get upset with
Commissioner Hamilton. Id. at 36:11-13. As to
Commissioner Anderson, he stated that Plaintiff's
employment with Lawrence County as its administrator while
simultaneously working as Hale County's administrator led
him to believe Plaintiff was not devoting sufficient time to
her work in Hale County. (Doc. 27-21, p. 2). Plaintiff
testified that she informed the Hale County Commission before
she began working for Lawrence County as its administrator in
February 2013, and the commissioners did not express a
concern. (Doc. 27-2, p. 27:2-16).
Plaintiff's termination, Judge Crawford spoke with Peggy
King. (Doc. 27-23, p. 14). Thereafter, Peggy King attended a
Lawrence County Commission meeting that Plaintiff attended as
a Lawrence County employee. Peggy King and Plaintiff were
competing for the same full-time position with Lawrence
County at that time. (Doc. 35-2, p. 59:2-3). Plaintiff
testified that, during the public comments section of the
meeting, Peggy King recommended that the Lawrence County
Commission check with Judge Crawford about what Plaintiff did
wrong in Hale County before hiring Plaintiff full-time. (Doc.
35-2, p. 58:10-59:9). Peggy King, however, testified that she
did not remember the specifics of what Judge Crawford said
about Plaintiff in their conversation beyond merely wanting a
fulltime administrator. (Doc. 27-23, p. 2:11-15).
also testified that Judge Crawford spoke to Sonny Brasfield
and Mary Pon, employees with the Association of County
Commissions of Alabama, before her termination. (Doc. 35-2,
p. 57:5-9). Plaintiff attested that Judge Crawford repeated
the statements contained within the disciplinary form to them
and told the two that Plaintiff “did not do her
job.” (Doc. 35-2, p. 57:10-20). But during his
testimony, Judge Crawford stated that he only called Sonny
Brasfield and Mary Pon for legal advice regarding
Plaintiff's contract with Hale County. (Doc. 27-8, pp.
her termination, Hale County has not replaced Plaintiff.
Instead, Plaintiff's duties were distributed between the
existing clerks, Carol Robinson and Juanita Moore. (Doc.
27-8, p. 4:1-15; Doc. 27-9, pp. 2:20-11:15; Doc. 27-10, p.
3:7- 10). Also, Hale County has not paid Plaintiff any
additional monies under either the 2008 Contract or the 2012
Amendment since her termination.
STANDARD OF REVIEW
Rule of Civil Procedure 56(a) provides that summary judgment
shall be granted: “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” The trial
court's function is not “to weigh the evidence and
determine the truth of the matter but to determine whether
there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The mere
existence of a factual dispute will not automatically
necessitate denial; rather, only factual disputes that are
material preclude entry of summary judgment. Lofton v.
Sec'y of Dep't of Children & Family Servs.,
358 F.3d 804, 809 (11th Cir. 2004). "If the evidence is
merely colorable, or is not significantly probative, summary
judgment may be granted." Anderson, at 249-250.
(internal citations omitted).
the movant satisfies his initial burden under Rule 56(c), the
non-moving party "must make a sufficient showing to
establish the existence of each essential element to that
party's case, and on which that party will bear the
burden of proof at trial." Howard v. BP Oil
Company, 32 F.3d 520, 524 (11th Cir. 1994)(citing
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
Otherwise stated, the non-movant must “demonstrate that
there is indeed a material issue of fact that precludes
summary judgment.” See Clark v. Coats & Clark,
Inc., 929 F.2d 604, 608 (11th Cir. 1991). The non-moving
party “may not rely merely on allegations or denials in
its own pleading; rather, its response .... must be by
affidavits or as otherwise provided in this rule be set out
specific facts showing a genuine issue for trial.”
Vega v. Invsco Group, Ltd., 2011 WL 2533755, at *2
(11th Cir. 2011). In reviewing whether a non-moving party has
met its burden, the Court must draw all justifiable
inferences in favor of the non-moving party. Tipton v.
Bergrohr GMBH-Siegen, 965 F.2d 994, 998 - 99 (11th Cir.
1992) (citations omitted). Thus the inquiry is “whether
the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Liberty
Lobby, 477 U.S. at 251-52.
1. Due Process Claims (Counts 1 &
Process Clause of the Fourteenth Amendment to the United
States Constitution provides that a State shall not
“deprive any person of life, liberty, or property,
without due process of law.” U.S. Const. amend. XIV,
§ 1. In other words, if Plaintiff had a property
interest in her employment as County Administrator,
Defendants could not deprive her of it without due process.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
538 (1985). The Due Process Clause is enforced through 42
U.S.C. § 1983, which was enacted by Congress in order to
enforce the Fourteenth Amendment. Conn v. Gabbert,
526 U.S. 286, 290 (1990) (“Section 1983 provides a
federal cause of action against any person who, acting under
color of state law, deprives another of his federal
Hale County Personnel Policy's Applicability to the
Due Process Claim
contends that the language of the Policy constitutes an offer
creating a unilateral contract under Alabama law. (Doc. 29,
p. 20). She argues that she received a copy of the Policy and
performed work for Hale County under the auspices of the
Policy. Thus, as a full-time employee under the Policy, she
had a property interest in her employment. Defendants counter
that Plaintiff has no protectable property interest in her
employment by way of the Policy. (Doc. 33, p. 17).
Specifically, either the 2008 Contract or 2012 Amendment
“was clear, unequivocal[, ] and finite” and
contains a termination provision, which, presumably, excludes
application of the Policy. Id. at 18. Additionally,
Defendants propound that Plaintiff conceded the Policy was
inapplicable to her. Id. at 19.
interests are “not created by the Constitution.”
Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972).
“Rather they are created and their dimensions are
defined by existing rules or understandings that stem from an
independent source such as state law-rules or understandings
that secure certain benefits and that support claims of
entitlement to those benefits.” Id. And for
the purposes of § 1983, “State law defines the
parameters of a Plaintiff's property interest ….
‘Whether state law has created a property interest is a
legal question for the court to decide.'”
Mackenzie v. City of Rockledge, 920 F.2d 1554, 1559
(11th Cir. 1991) (quoting Marine One, Inc. v. Manatee
Cnty., 877 F.2d 892, 894 (11th Cir. 1989),
rehearing denied, 898 F.2d 1490 (11th Cir.
employment status within this state, the Alabama Supreme
Court reasoned, in relevant part:
It has long been the law in Alabama that employment is
terminable at will by either party for any reason unless
there is an express and specific contract for lifetime
employment or employment for a specific duration.
“[A]bsent an agreement on a definite term, any
employment is considered to be ‘at-will, ' and may
be terminated by either party, with or without cause or
justification.” Clark v. America's First Credit
Union, 585 So.2d 1367, 1369 (1991). Furthermore,
employees in Alabama bear a heavy burden of proof to
establish that an employment relationship is other than
‘at will.' The law considers lifetime or permanent
employment contracts to be extraordinary and not lightly to
be implied. Alabama Mills, Inc. v. Smith, 237 Ala.
296, 301 (1939).
Howard v. Wolff Broadcasting Corp., 611 So.2d 307,
310-11 (Ala. 1992), cert. denied, 507 U.S. 1031
Alabama Supreme Court explained that a plaintiff must
demonstrate three elements to show employment is other than
(1) that there was a clear and unequivocal offer of lifetime
employment or employment of definite duration; (2) that the
hiring agent had authority to bind the principal to a
permanent employment contract; and (3) that the employee
provided substantial consideration for the contract separate
from the services to be rendered. Hoffman-La Roche, Inc.
v. Campbell, 512 So.2d 725, 728 (Ala. 1987) (citations
whether a personnel policy can create a property interest in
employment, the Hoffman-La Roche Court continued:
we see no reason why a policy contained in an employee manual
issued to an employee cannot become a binding promise once it
is accepted by the employee through his continuing to work
when he is not required to do so. Such a performance clearly
provides any consideration necessary to the contract. The
fact that the promise is communicated to the employee through
the medium of a handbook, rather than by some other means, is
simply of no consequence.
In summary, we find that the 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 734-35.
Here, the Policy begins with the following recitals:
Whereas: The Hale County Commission desires to provide
quality services to the citizens of Hale County; and Whereas:
the Commission is dedicated to providing equal opportunity
for employment to all qualified applicants and fair treatment
for all employees; and Whereas: the Commission believes that
continuance of employment with the County should be based on
satisfactory performance of duties; Now, THEREFORE, BE IT
RESOLVED that the County Commission of Hale County does
hereby adopt and proclaim the following personnel policies:
(Doc. 27-5, p. 3). The Policy continues:
The County will develop a description of each job/position in
the County services, with a list of representative tasks
normally assigned to or associated with the job/position.
(Doc. 27-5, p. 4, Section II, Conditions of Employment,
Each employee will be given a copy of his/her job description
and an Employee Handbook, outlining all rules, regulations,
policies, conditions, and benefits of County Employee
employment. Both employee and management/supervisory staff
will be required to know and productively implement all
provisions and conditions of employment.
(Doc. 27-5, p. 4, Section II, ¶ D).
All employees have the right to discuss any and all matters
relating to their employment and/or their personal welfare
with their supervisors. They may communicate with their
supervisors, either orally or in writing, and may be
accompanied by representation of their choice. When
disagreement over the solution of a problem cannot be
resolved, permanent employees shall have access, through
the grievance procedure, to successively higher levels
of management. Management/supervisory personnel will produce
resolution of problems and grievances, attempting to always
ensure every permanent employee the right to due process
under the grievance procedure.
(Doc. 27-5, p. 4, Section II, ¶ F) (emphasis supplied).
The County believes that the goal of productivity in county
employment will be served by establishing a probationary
period for new employees during which each employee is
oriented to all the conditions and requirements of county
work and during which his/her performance is closely
supervised and monitored to assure the attainment of the
minimum performance requirements for the job/position.
Probationary employees shall share in all the benefits of
employment with the county except that dismissals for
cause during the probationary period shall not be
27-5, p. 5, Section II, ¶ I) (emphasis supplied).
All new employees are required to serve a satisfactory
three-months' probationary period before attaining
permanent status in the county service. During this
time, formal evaluations of the probationary employee's
work will be conducted at regular intervals, but no less that
(sic) three (3) times during the probationary period.
Probationary employees who cannot meet the standards of their
departments will be counseled and given the opportunity to
improve in the areas of their deficiency(ies). Probationary
employees shall enjoy all the rights, benefits and privileges
of county employment, except that they do not have the right
of access to the grievance procedure. Probationary
employees' claim of discrimination is handled exactly as
any other claim of discrimination.
27-5, p. 17, Section XII, Probationary Period).
regards to employee violations, the Policy outlines the
following “Disciplinary Actions”:
Employees are expected to attend work regularly, arriving in
(sic) time and spending the assigned time in productive work
efforts. They are also expected to deal honestly, fairly and
effectively with the County's resources and citizens.
When employees cannot or will not conform to the
Personnel Rules and Regulations as outlined herein, they may
be disciplined in the following ways:
1. Verbal Reprimand: a notification of which will be
placed in the personnel file; 2. Written Reprimand:
a copy will be placed in the personnel file. The employee
will also be given a copy of the written reprimand.
3. Suspension: for up to ten (10) consecutive
working days. Suspension of an aggregate of twenty-five (25)
days in any calendar year (dating from the first suspension)
will result in termination. Suspensions are without pay.
4. Demotion and Reduction of Pay:
Steps 4, 5 and 6 shall be only with the concurrence of the
County Engineer. An appeal can be made following the steps in
[the] grievance procedure.
(Doc. 27-5, p. 11) (emphasis supplied).
Policy also sets out a four-step grievance procedure
employees may utilize after completing the three-month
probationary period. See (Doc. 27-5, pp. 9- 10,
Section VI, Grievance Procedure). A non-probationary employee
may first discuss the incident with an immediate supervisor
(Step One). Then the employee may file a written complaint
with the department head (Step Two). Next, the employee may
request that the Personnel Officer notify the Personnel
Review Board of a desire to appeal the Step Two decision. The
Board should meet within ten (10) days and hear the grievance
(Step Three). The Personnel Review Board shall submit a
recommendation in writing to the County Commission and the
County Commission may affirm, modify, or reject the
recommendation (Step Four).
contends that she received and signed a copy of the Policy
when she began employment. (Doc. 30-1, p. 25:2-5). Defendants
do not dispute this point. Further, there is no dispute that
Plaintiff continued to work as the Hale County Administrator
after receiving the policy even though she could resign. This
supplied the necessary consideration. Hoffman-La
Roche, 512 So.2d at 735.
the issue remains whether the language within the Policy was
“specific enough to constitute an offer rather than a
mere general statement of policy.” Id.
Addressing the same Hale County Personnel Policy, this Court
recently found the same language specific enough to
constitute an offer. In Langford v. Hale County
Commission, this Court reasoned, in relevant part:
The introductory paragraphs to the Policy Statements
specifically state that the Commission is dedicated to
providing “fair treatment for all employees” and
that “continuance of employment with the County should
be based on satisfactory performance of duties” as part
of the underpinnings of the Policy. (Doc. 31-3, p. 5) The
policy contained no disclaimers or reservations to deviate
from [t]he policy provisions therein. Cf. Harper v.
Winston County, 892 So.2d 346, 351-352 (Ala. 2004)
(finding that the introduction to the handbook
“repeatedly states” that it is a
“guide” for employees and the statement that
conditions “may vary slightly with the occasion as all
problems vary” was sufficient to be “express
disclaimers reserving to the County the right to deviate from
the policies stated in the handbook” and thus did not
create an employment contract).
Importantly, the Personnel Policy clearly refers to
employees, after a probationary period, as permanent
employees. (Doc. 31-3, p. 19, XII Probationary Period)
(“All new employees are required to serve a
satisfactory three-months' probationary period before
attaining permanent status in the county service.”)
Moreover, the Eleventh Circuit has explained that “the
existence of procedural protections can-at least in the
absence of circumstances indicating the contrary-suggest the
existence of substantive restrictions on the employer's
discretion to discharge.” Green v. City of
Hamilton, Housing Authority, 927 F.2d 1561, 1566 n.2
(11th Cir. 1991). In regard to substantive restrictions, the
Personnel Rules and Regulations set out a hierarchy of
disciplinary actions and a list of actions that are grounds
for disciplinary action. (Doc. 31-3, p. 13-14) The Personnel
Rules and Regulations provide that demotion and reduction in
pay, transfer and termination “shall be only with the
concurrence of the County Engineer” and that an appeal
can be made by way of the Grievance Procedure. (Doc. 31-2, p.
13) In the end, “if the employer does not wish the
policies contained in an employee handbook to be construed as
an offer for unilateral contract, he is free to so state in
the handbook.” Hoffman-La Roche, 512 So.2d at
734. Hale County Commission failed to do so.
14-cv-00070, Doc. 56 at pp. 18-19. The Court sees no reason
to deviate from the above analysis.
the Court finds unpersuasive Defendants' contention that
the “finite” status of either the 2008 Contract
or 2012 Amendment or the mere existence of a contract
prevents Plaintiff from satisfying Hoffman-La Roche.
Either contract specified a definite period of time wherein
Plaintiff would be employed by Hale County. Indeed, this
identifies the “particular term, length, or duration of
employment” necessary to move the needle from the
default position of at will employment. Bates v. Jim
Walter Resources, Inc., 418 So.2d 903, 905 (Ala. 1982).
assuming arguendo either the 2008 Contract or 2012 Amendment
has a bearing on the applicability of the Policy, neither one
explicitly disclaims application of the Policy, in the
termination provision or otherwise. Instead, both make
reference to the Policy in at least one similar manner:
shortcomings by Plaintiff are addressed and remedied
“in accordance with County's disciplinary
procedures.” (Doc. 27-3, pp. 17, 22). Defendants offer
no evidence that the “disciplinary procedures”
either contract speaks to are anything other than those
described in the Policy. The disciplinary form Defendants
provided Plaintiff supports this position. Compare
(Doc. 27-8, p. 21) with (Doc. 27-5, p. 11).
Therefore, it strains reason to think that the entire Policy
is inapplicable or the disciplinary procedures outlined in
the Policy would apply but the rest of the Policy is
assuming arguendo the 2012 Amendment is valid, it outlines
that Plaintiff is “entitled to all rights,
privileges and benefits that County employees have
including but not limited to any hospital, surgical,
dental and/or any other medical benefit, under the benefit
plan for other county employees.” (Doc. 27-3, p. 22)
(emphasis supplied). Defendant insists that this clause is
limited to those benefits of and relating medical care. (Doc.
33, p. 21). This argument, however, fails to consider that
any conflicts between either contract and the Policy or
ambiguities therein “are construed in favor of the
nondrafting party”: Plaintiff. Anderson v.
McAllister Towing and Transp. Co., Inc., 17 F.Supp.2d
1280, 1288 (S.D. Ala. 1998). Thus, such a limited evaluation
of the 2012 Amendment is improper given that the benefits
section is not limited medical benefits by its own terms.
also argue that Plaintiff concedes the Policy does not apply
to her. The Court disagrees with this argument. To begin
with, “[i]t is elementary that it is the terms of the
written contract, not the mental operations of one of the
parties, that control its interpretation.” Harbison
v. Strickland, 900 So.2d 385, 391 (Ala. 2004) (citation
omitted). “Stated another way, the law of contracts is
premised upon an objective rather than a subjective
manifestation of intent approach.” Id.
(citation omitted). Therefore, it is the terms of the Policy
that determines its applicability to Plaintiff, not the
subjective opinion of Plaintiff.
review of the Policy shows it does not identify employees
that were and were not subject to the Policy. For instance,
“[a]ll employees” who reach permanent status have
access to the grievance process. (Doc. 27-5, p. 4). And
“[e]ach employee” will be provided with a copy of
the Policy, “outlining all rules, regulations,
policies, conditions, and benefits of County Employee
employment.” Id. Nothing in the Policy
differentiated between contract and non-contract employee
application. “Had the Hale County Commission intended
to exclude all [contract] employees from the Personnel Rules
and Regulations it could have done so.”
Langford, 14-cv-00070, Doc. 56 at 19. Upon
consideration of the foregoing, Plaintiff has a protected
property interest in her employment by way of the Policy.
Mackenzie, 920 F.2d at 1559 (“Whether state