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Galbreath v. Hale County

United States District Court, S.D. Alabama, Northern Division

February 1, 2017

TRICIA GALBREATH, Plaintiff,
v.
HALE COUNTY, ALABAMA COMMISSION, et al., Defendants.

          ORDER AND MEMORANDUM OPINION

         This 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 DENIED.

         I. PROCEDURAL BACKGROUND

         This 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).

         Defendants 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 consideration.

         II. FACTUAL BACKGROUND

         The 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, pp. 1-24).

         On 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).

         In the 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 Amendment.[1]

         On June 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).

         After 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 session.

         The 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 a declaration.

         As to 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).

         Second, 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).

         Commissioner 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).

         After 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).

         Plaintiff 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. 16:15-77:20).

         Since 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.

         III. STANDARD OF REVIEW

         Federal 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).

         Once 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.

         IV. DISCUSSION

          1. Due Process Claims (Counts 1 & 7)

         The Due 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 rights.”)

         a. Hale County Personnel Policy's Applicability to the Due Process Claim

         Plaintiff 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.

         Property 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. 1990)).

         Discussing 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 (1993).

         The Alabama Supreme Court explained that a plaintiff must demonstrate three elements to show employment is other than at will:

(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 omitted).

         Evaluating 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, ¶ A).

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 grievable.

         (Doc. 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.

         (Doc. 27-5, p. 17, Section XII, Probationary Period).

         In 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:
5. Transfer:
6. Termination:
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).

         The 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).

         Plaintiff 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.

         Therefore, 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.

         Furthermore, 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).

         But 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 inapplicable.

         Further, 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.

         Defendants 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.

         A 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 law ...


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