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Green v. Taylor

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

September 20, 2017

ANTHONY L. GREEN, et al., Plaintiffs,
HAL TAYLOR, in his official capacity as Acting Secretary of Law Enforcement for the Alabama Law Enforcement Agency, et al., Defendants.



         This cause is before the Court on the Motion for Summary Judgment of Defendants Jackie Graham and Stan Stabler[1] (Doc. 37), Memorandum of Law in Support of Motion for Summary Judgment by Jackie Graham (“Graham”), in her individual and official capacities, and Stan Stabler (“Stabler”), in his official capacity (Doc. 38), Plaintiffs' Response in Opposition to Defendants' Motion for Summary Judgment (Doc. 44), Defendants' reply (Doc. 48), Defendants' Response to Order[2] (Doc. 63), Plaintiffs' Rebuttal to Defendants' Response to Order (Doc. 64), and Defendants' Reply to Order (Doc. 65).[3] Oral argument on the motion was heard January 18, 2017. The parties have had the opportunity to fully brief the issues. For the reasons that follow, the court denies Defendants' motion for summary judgment (Doc. 37).

         Also before the Court is Defendants' motion to disregard certain evidence submitted by Plaintiffs (Doc. 47), and Plaintiffs' response in opposition. (Doc. 49). Because the court concludes on the record before it that questions of fact preclude summary judgment in Defendants' favor, Defendants' motion to disregard certain evidence (Doc. 47) is denied as moot.

         I. Procedure and Background

         A. Procedural History

         Plaintiffs, Anthony L. Green (“Green”), Brooke M. Walker (“Walker”), and Earl E. Howton, Jr. (“Howton”), are currently employees of the Alabama Law Enforcement Agency (“ALEA”) and participants in the Employees' Retirement System of Alabama (“RSA”). (Doc. 14, ¶¶ 2-4). The RSA is comprised of the Teachers' Retirement System (“TRS”) and the state employees' retirement system (“ERS”). The retirement benefits at issue here are under the purview of ERS, which administers the Law Enforcement and State Policeman retirement plans.

         Plaintiffs instituted this lawsuit in the circuit court of Montgomery, Alabama, on September 11, 2015, asserting causes of action for violations of the Equal Protection provisions of the United States and Alabama Constitutions. (Doc. 1-1). Plaintiffs sued Defendants, Spencer Collier (“Collier”), in his representative capacity as Secretary of Law Enforcement for the ALEA, and Dr. David G. Bronner (“Bronner”), in his representative capacity as Chief Executive Officer of the RSA. Id. On September 21, 2015, Collier removed the action to this Court with the consent of all Defendants under 28 U.S.C. § 1441, because Plaintiffs' complaint alleges violation of rights under the United States Constitution. (Doc. 1). On September 28, 2015, Plaintiffs voluntarily dismissed Bonner. (Doc. 3). Attached to the notice of dismissal was a letter from ERS's counsel stating that ERS will calculate and pay Plaintiffs state policeman retirement benefits upon their retirement provided the lawsuit brings about equitable relief classifying them as “state policemen” under Alabama Code § 36-27-1(23), [4] and the appropriate amount of employee and employer contributions are made and continue to be made for so long as Plaintiffs are active employees in the classification of “state policemen.” (Doc. 3-1).

         On February 19, 2016, Plaintiffs filed a two-count amended complaint alleging constitutional violations of equal protection and due process against Collier, in his individual and official capacities, and Graham, individually and in her official capacity as Director of the State of Alabama Personnel Department.[5] (Doc. 14). In September 2016, Plaintiffs moved to dismiss the claims against Graham individually, which the Court granted in November 2016. (Docs. 29, 40).

         Graham and Stabler filed their Motion for Summary Judgment and supporting memorandum on November 2, 2016. (Docs. 37, 38). In support of their motion, Defendants filed affidavits of Stabler and Graham, deposition testimony of Green and Howton, trial testimony of Walker, Graham, and others, [6] Plaintiffs' discovery responses, RSA Board meeting minutes from December 15, 2008, and State Personnel Board meeting minutes from December 17, 2014. (Doc. 39). Plaintiffs filed a memorandum opposing the motion along with affidavits, depositions, and other evidentiary support for their position. (Doc. 44). Defendants replied. (Doc. 48). In response to the Court's order and notice pursuant to Fed.R.Civ.P. 56(f), the parties submitted additional briefing. (Docs. 63, 64, 65). Defendants filed a motion requesting the court disregard certain evidence filed on behalf of Plaintiffs, which Plaintiffs opposed. (Docs. 47, 49).

         In September 2016, the Court granted Plaintiffs' unopposed motion to substitute Stabler in his official capacity as Secretary of Law Enforcement for the ALEA in the place of Collier, who no longer held the position, and to dismiss the individual claims against Collier. (Docs. 34, 36). On June 14, 2017, the Court granted Plaintiffs' motion to substitute Hal Taylor as Acting Secretary of the ALEA in place of Stabler. (Doc. 60).

         B. Factual Background

         1. Merit System Act, DPS, ABI option, and ALEA

         In 1935, Alabama created the Alabama Highway Patrol. (Doc. 39-1, ¶ 2). In 1939, a reorganization occurred, and the Department of Public Safety (“DPS”) was established.[7] Id. The Alabama Bureau of Investigation (“ABI”) is the investigative division of DPS and provides investigative services in support of other members of the criminal justice system in Alabama. Id.; (Doc. 44-4 at 2). The Merit System Act created the Alabama State Department (“SPD”) which is administered by the State Personnel Director who answers to the State Personnel Board. (Doc. 39-2, ¶¶ 3, 4). “The Merit System Act delegates administrative authority to the Personnel Board, to make rules, not inconsistent with existing laws.” Simpson v. Van Ryzin, 265 So.2d 569, 575 (1972). Graham is the State Personnel Director of SPD and is also vice chair of the Board of Control which manages the ERS. (Doc. 39-2, ¶ 2).

         The purpose of the Merit System Act is “to assure to all citizens of demonstrated capacity, ability and training an equal opportunity to compete for service with the State of Alabama, to establish conditions in the state service which will attract officers and employees of character and capacity and to increase the efficiency of the governmental departments and agencies by the improvement of methods of personnel administration.” Ala. Code § 36-26-3 (1975).

         Positions in the service of the state are divided into the exempt, the unclassified, and the classified. Ala. Code § 36-26-10 (1975). Classified service includes all other officers and positions in the state service that are not exempt[8] or unclassified.[9] It is undisputed that Plaintiffs here are in classified positions under the Merit System.

         The Merit System Act required the creation of a classification plan. Ala. Code § 36-26-11 (1975). Upon enactment of this article, the Director was tasked with “ascertain[ing] and record[ing] the duties of each position in the state service and, after consultation with appointing authorities and principal supervising officials, recommend to the board a classification plan, together with proposed rules for its administration.” Ala. Code § 36-26-11. The plan showing each class of position in the state service was to be made public along with the rules for its administration. Id. “Each such class shall include positions requiring duties which are substantially similar in respect to the authority, responsibility and character of the work required in the performance thereof.” Ala. Code § 36-26-11.

         According to Graham, “[a] classification is a job grouping that groups positions together that are performing similar duties and responsibilities, require similar minimum qualifications, they have a similar examination, and they're also paid in the same pay range.” (Doc. 44-9 at 13). Job classifications established by the Personnel Department carry important rights and benefits in that salaries, benefits, and future promotional opportunities are, or may be, dependent on the specific classification given to a particular job. (Doc. 14, ¶ 8). At issue in this lawsuit is the “Special Agent” job classification, which is assigned classification 11280, which is the Special Agent classification already in use for professional investigators employed by the Alabama Attorney General's Office. (Docs. 39-2, ¶ 9; 44-8, ¶ 4). An ABI Option was added to the Special Agent classification in 2008. (Doc. 39-2, ¶ 14). DPS requested the ABI option code within the Special Agent classification because of its need for more investigators to work on particular law enforcement tasks without reducing the number of troopers patrolling highways and investigating traffic accidents. Id., ¶ 20. In 2008, special agents (11280 classification) employed by the Attorney General's Office were participating in the State Policeman retirement plan. See Ala. Code § 36-15-62(e).

         The Special Agent (ABI option) position was first announced August 6, 2008. (Doc. 44-7). Although the position was titled “special agent, ” the Position Announcement developed by the State Personnel Board provided,

Special Agent (ABI Option) is a permanent full-time position used by the Alabama Department of Public Safety. …This is highly responsible work conducting state-wide investigations in the enforcement of state and federal laws and regulations.

(Doc. 14-1) (emphasis added). The Special Agent program allowed DPS to direct hire experienced investigators. Prior to this time, investigators had traditionally been promoted from the state trooper ranks and then given extensive training to become professional investigators. (Doc. 44-5 at 1). The creation of the Special Agent (ABI Option) program in 2008 allowed ABI to directly hire experienced professional criminal investigators from outside DPS, and save the expense, time, and effort typically involved in training in-house investigators. Id. at 2. According to Major Connor, “[t]he Special Agents hired directly supplement the existing trained, skilled investigators within the ABI without a corresponding decrease in the troopers for the Highway Patrol.” Id.

         After a competitive interview and application process, Plaintiffs were offered employment in 2009 as Special Agents (ABI Option) working for DPS. (Doc. 14, ¶ 12). At the time Plaintiffs were hired, all employees working in a law enforcement capacity for ABI or DPS participated in the enhanced retirement program for state policemen. Id., ¶ 16. Plaintiffs do not participate in “state policeman” retirement. Plaintiffs allege they have been denied due process and equal protection under the Constitutions of the United States and Alabama due to Defendants' refusal to provide them with state policeman retirement benefits. Id., ¶ ¶ 36, 39.

         In 2013, Act 2013-67 created the Alabama State Law Enforcement Agency (“ALEA”), which is codified in the Code of Alabama, sections 41-27-1 to 41-27-9 (2013). ALEA was established to coordinate public safety in the state and is comprised of the DPS and the State Bureau of Investigations. Ala. Code § 41-27-1 (2013). The State Bureau of Investigations (“SBI”) succeeded the ABI. Ala. Code § 41-27-5(a) (1975). SBI also received the investigative functions from several other state agencies. See Ala. Code §§ 41-27-5(c)-(d). Thus, ALEA represented the consolidation and realignment of 12 state law enforcement agencies or functions into one entity. (Doc. 39-1, ¶ 3). The agencies from which functions and personnel were transferred are referred to as “legacy agencies.” See Ala. Code § 41-27-7(a).

         Alabama Administrative Code provides, “[t]he Director shall, on [her] own initiative, make periodic investigations of any and all positions in order to determine changes in duties and responsibilities of positions as a basis for keeping the classification plan up-to-date.” Ala. Admin. Code 670-X-7-.06 (2015).[10] It further provides, “[e]xisting classes may be abolished or changed or new classes added on recommendation of the Director and favorable vote of the Board in a meeting. New classes and pay range changes must be approved by the Governor.” Ala. Admin. Code 670-X-7-.02 (2015). According to Graham's affidavit, the classification plan currently consists of approximately 1, 300 job classifications, which can vary with job classifications being abolished if no longer needed and new classifications created if needed. (Doc. 39-2, ¶ 6).

         2. Employees' Retirement System of Alabama (ERS)

         The State of Alabama has a statutorily-created retirement system for state employees which is governed by a Board of Control. See Ala. Code § 36-27-2 (1975). As provided by subsection (a) to § 36-27-2, “[a] retirement system is hereby established as a body corporate and placed under the management of the Board of Control[11] for the purpose of providing retirement allowances and other benefits under the provisions of this article for employees of the State of Alabama.” Ala. Code § 36-27-2(a). The ERS consists of three general plans, each providing a different level of benefits. It is undisputed the plan providing the most or highest level of benefits is that of “State Policeman.” (Docs. 38 at 15; 44 at 2). The other two state employee retirement plans - for law enforcement and state employees - provide lesser-valued benefits. For retirement benefit purposes, Plaintiffs have been classified as “Law Enforcement, ” but seek the more lucrative classification of “State Policeman.”

         In pertinent part, Alabama Code § 36-27-1(23), defines “State Policeman” as “[a]n employee in the classified service under the Merit System Act approved by the State Personnel Board to perform the duties of highway patrolman or a beverage control agent or a crime investigator.” Ala. Code § 36-27-1(23). According to Graham, “[a]bsent statutory authority, no employee in the Special Agent classification is in the State Policeman retirement.” Doc. 36-2, ¶ 19. Plaintiffs submit that Ala. Code § 36-27-1(23) defines the qualifications to participate in state policeman retirement benefits and ...

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