United States District Court, Southern District of Alabama, Southern Division
KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE.
action is before the Court on the Motion for Summary Judgment
under Federal Rule of Civil Procedure 56 (Doc. 39) and
separate memorandum and exhibits in support (Docs. 40, 41)
filed by Defendant Liana Barnett, who is being sued in her
official capacity as the Board's Personnel Director, and
Defendant Donald Dees, who is being sued in his individual
capacity. Plaintiff Michael Smith has timely filed a
response (Doc. 45), supported by exhibits, in opposition to
the motion, and the moving Defendants have timely filed a
reply (Doc. 49) to the response. The motion is now under
submission (see Doc. 42) and is ripe for
motion simply moves for summary judgment on Smith's
Complaint in general. However, Count V and the federal claims
in Count IV have already been dismissed by previous orders
and are no longer pending. (See Docs. 31, 50). Thus,
the present motion is MOOT as to those
claims. As to the remaining claims, the Court tentatively
finds that the Motion for Summary Judgment (Doc. 39) is due
to be is GRANTED on all remaining federal
claims, but not for the reasons argued by Barnett and Dees.
The Court further tentatively finds that, for the same
reasons, summary judgment is due to be
GRANTED in favor of all other Defendants on
all remaining federal claims in the Complaint (Doc. 1).
Because the Court finds that summary judgment is appropriate
both for nonmovants and for grounds not raised by the
movants, notice and a reasonable time to respond will be
provided to the parties. See Fed. R. Civ. P.
Applicable Legal Standards
party may move for summary judgment, identifying each claim
or defense--or the part of each claim or defense--on which
summary judgment is sought. The court shall grant summary
judgment 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.” Fed.R.Civ.P. 56(a).
“An issue of fact is ‘material' if it might
affect the outcome of the suit under governing law and it is
‘genuine' if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d
1287, 1294 (11th Cir. 2013) (quotations omitted).
“Summary judgment is only appropriate if a case is
‘so one-sided that one party must prevail as a matter
of law.' ” Quigg v. Thomas Cty. Sch.
Dist., 814 F.3d 1227, 1235 (11th Cir. 2016) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986)) (citation omitted). However, a “
‘mere scintilla' of evidence is insufficient; the
non-moving party must produce substantial evidence in order
to defeat a motion for summary judgment.”
Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th
Cir. 2009) (per curiam). In other words, “there must be
enough of a showing that the jury could reasonably find for
that party … Where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving
party, there is no genuine issue for trial.” Allen
v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997)
are required to view the facts and draw reasonable inferences
in the light most favorable to the party opposing the summary
judgment motion.” Jackson v. West, 787 F.3d
1345, 1352 (11th Cir. 2015) (quoting Scott v.
Harris, 550 U.S. 372, 378 (2007) (alteration adopted)
(quotations omitted)). See also Allen, 121 F.3d 642,
646 (11th Cir. 1997) (“The evidence of the non-movant
is to be believed, and all justifiable inferences are to be
drawn in his favor.” (quotations omitted)). “The
Court ‘must avoid weighing conflicting evidence or
making credibility determinations.' ” Ave. CLO
Fund, 723 F.3d at 1294 (quoting Stewart v. Booker T.
Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000)).
However, “ ‘an inference based on speculation and
conjecture is not reasonable.' ” Id.
(quoting Blackston v. Shook & Fletcher Insulation
Co., 764 F.2d 1480, 1482 (11th Cir. 1985)).
non-moving party bears the burden of proof on an issue at
trial, the moving party, in order to prevail, must do one of
two things: show that the non-moving party has no evidence to
support its case, or present ‘affirmative evidence
demonstrating that the nonmoving party will be unable to
prove its case at trial.' ” Hammer v.
Slater, 20 F.3d 1137, 1141 (11th Cir. 1994) (quoting
United States v. Four Parcels of Real Property, 941
F.2d 1428, 1437-38 (11th Cir. 1991) (en banc)). “Once
the movant adequately supports its motion, the burden shifts
to the nonmoving party to show that specific facts exist that
raise a genuine issue for trial.” Dietz v.
Smithkline Beecham Corp., 598 F.3d 812, 815 (11th Cir.
2010). “For issues on which the non-moving party will
bear the burden of proof at trial, the non-moving party must
either point to evidence in the record or present additional
evidence ‘sufficient to withstand a directed verdict
motion at trial based on the alleged evidentiary
deficiency.' ” Hammer, 20 F.3d at 1141
(quoting Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1116 (11th Cir. 1993)).
the moving party has the burden of proof at trial,
that party must show affirmatively the absence of a
genuine issue of material fact: it must support its motion
with credible evidence that would entitle it to a directed
verdict if not controverted at trial. In other words, the
moving party must show that, on all the essential elements of
its case on which it bears the burden of proof at trial, no
reasonable jury could find for the nonmoving party. If the
moving party makes such an affirmative showing, it is
entitled to summary judgment unless the nonmoving party, in
response, comes forward with significant, probative evidence
demonstrating the existence of a triable issue of
fact.” Four Parcels of Real Prop., 941 F.2d at
1438 (citations and quotations omitted).
party asserting that a fact cannot be or is genuinely
disputed must support the assertion by: (A)
citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.” Fed.R.Civ.P. 56(c)(1). “The
nonmoving party may avail itself of all facts and justifiable
inferences in the record taken as a whole.”
Allen, 121 F.3d at 646 (quotation omitted).
“If reasonable minds could differ on the inferences
arising from undisputed facts, then a court should deny
summary judgment.” Id. (quotation omitted).
“Conclusory allegations and speculation are
insufficient to create a genuine issue of material
fact.” Valderrama v. Rousseau, 780 F.3d 1108,
1112 (11th Cir. 2015) (citing Cordoba v. Dillard's
Inc., 419 F.3d 1169, 1181 (11th Cir. 2005)
(“Speculation does not create a genuine issue of fact;
instead, it creates a false issue, the demolition of which is
a primary goal of summary judgment.”)).
Summary Judgment Factual Determinations
470, Local Acts of 1939, as amended by Act No. 2004-105, Ala.
Acts 2004 (“Local Act 470”) created the Mobile
County Personnel Department (“MCPD”) to
“govern and control, by Civil Service rules,
regulations and practices, …all individuals in the
Classified Service” in Mobile County, Alabama.
(See Doc. 41-3 at 3 - 4 [Local Act 470, §§
III - IV]). The MCPD is composed of three entities: a
Supervisory Committee, a Personnel Board (hereinafter,
“the Board”), and a Personnel Director. (See
Id. at 3 [Local Act 470, § III]). It is undisputed
that, at all times material to this action, Dees served as
MCPD's Personnel Director. Per Section VIII of Local Act
470, the Personnel Director serves as “executive
head” of the Department and is tasked with directing
and supervising “all of its administrative and
technical activities.” (Doc. 41-3 at 10).
was employed as a police sergeant with the City of Mobile
Police Department, which was considered an MCPD
“Classified Services” position. On August 29,
2014, the City of Mobile delivered a Disciplinary Trial Board
Notice to Smith, setting forth various charges of malfeasance
by Smith, providing a date for a “non-adversary
Administrative Trial Board Hearing, ” and advising
Smith of certain rights. (Doc. 41-5. See also Doc.
45-1 at 1, ¶ 2 [Smith Aff.]). The trial board hearing
was held September 3, 2014 (See Doc. 41-6 at 1),
with Smith attending and giving testimony (see Doc.
45-1 at 2 - 4). By notice dated September 9, 2014, Defendant
Sandy Stimpson, in his capacity as mayor of Mobile, concurred
with the trial board's recommendation and dismissed Smith
from his employment. (Doc. 41-6). Smith appealed that
decision to the Board (see Doc. 41-7), under the
procedures set forth in Rule 14.4 of the Rules and
Regulations of the Personnel Board (“Board
Rules”) (Doc. 41-4 at 55). Board Rule 14.5 provides as
The Director shall within seven (7) calendar days after
receipt of the appeal, investigate to insure proper procedure
was followed as set out in Rule 14.3 and 14.4 and report said
appeal to the Board. The Board shall schedule a public
hearing on the appeal as early as practicable. Notice of the
date, time and place of the hearing shall be given to the
employee and the Appointing Authority. The parties may be
represented by counsel. The Board shall not be bound by the
technical rules of evidence but shall seek diligently all the
information and evidence bearing on the merits of the case.
(Doc. 41-4 at 55).
and the Board first became involved in Smith's
termination proceedings around September 12, 2014 (, when
Dees “received Smith's appeal” and
“handled the matter on behalf of the Personnel Board in
the usual course of business[, ]” as follows:
I noted in the Personnel Board records receipt of Smith's
appeal of his termination by the City of Mobile Police
Department. Following the procedure in Personnel Board Rule
14.5, on September15, 2014 I reviewed the procedural
documents, including the predisciplinary hearing notice[, ]
the Mayor's letter of termination, and Smith's notice
of appeal (Ex. 7). The initials "D.D." which appear
in the documents are mine, and I dated the documents when I
reviewed them- September 15, 2014.
I determined from review of the documents that the City of
Mobile provided Smith with at least 24 hour advance notice of
the pre-disciplinary hearing; that the written notice
contained a statement of the allegations and facts underlying
the contemplated disciplinary action; that Smith was given an
opportunity to respond to the allegations; that Smith was
given written notice of the termination by the appointing
authority; and that Smith filed a timely notice of appeal.
Finding the predisciplinary hearing documents to be in order,
I reported Smith's appeal to the Board by placing it on
the Personnel Board's September 16, 2014 meeting agenda.
The Personnel Board scheduled Smith's appeal for a de
novo hearing on November 13, 2014.
As Personnel Director I (or my assistant) attended Personnel
Board hearings. At the hearing I acted as something of a
bailiff by ushering witnesses in and out the hearing room,
operating A V equipment, making copies of documents,
etc…I did not in Smith's case, examine witnesses,