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Galbreath v. Hale County

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

August 8, 2017

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

          ORDER ON RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW AND, ALTERNATIVELY, MOTION FOR NEW TRIAL

          CALLIE V. S. GRANADE SENIOR UNITED STATES DISTRICT JUDGE

         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 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

         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.'” 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 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 pre-termination 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] [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 pre-termination 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-the-spot” 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 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.

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 “one-size-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 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 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. 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 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. 72-1, 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 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 cross-examination 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 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 “constitutionally-guaranteed 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 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-fits-all” 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 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. 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 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 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.

         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 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 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 § 36-27-8.2(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 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 ...


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