United States District Court, S.D. Alabama, Northern Division
ORDER ON RENEWED MOTION FOR JUDGMENT AS A MATTER OF
LAW AND, ALTERNATIVELY, MOTION FOR NEW TRIAL
V. S. GRANADE SENIOR UNITED STATES DISTRICT JUDGE
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). For the reasons explained
below, the Court finds that Defendants' motion is to be
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.
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
JUDGMENT AS A MATTER OF LAW
The Renewed Motion for Judgment as a Matter of Law
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).
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.
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).
Whether Galbreath Received Pre-termination Due
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).
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.
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.
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.
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
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
Kelly and Staples, it becomes apparent that
“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.
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
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.
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.
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
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
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
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
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.
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.
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).
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.
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).
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
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
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.
Applicability of McKinney and
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.
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).
Whether Galbreath's Complaint Alleges the Policy Created
a Property Interest in her Employment
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.
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.
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
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.
Whether the Policy Created a Property Interest
Defendants take issue with the Court's determination that
the Policy rose to the level of creating a property interest
in Galbreath's employment. (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.
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.
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
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.
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). (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
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.
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.
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).
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).
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.
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).
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
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 ...