United States District Court, M.D. Alabama, Northern Division
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.
MEMORANDUM OPINION AND ORDER
A. BAKER, UNITED STATES MAGISTRATE JUDGE.
cause is before the Court on the Motion for Summary Judgment
of Defendants Jackie Graham and Stan Stabler (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 (Doc. 63),
Plaintiffs' Rebuttal to Defendants' Response to Order
(Doc. 64), and Defendants' Reply to Order (Doc.
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).
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.
Procedure and Background
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.
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),  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).
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. (Doc. 14). In September 2016, Plaintiffs
moved to dismiss the claims against Graham individually,
which the Court granted in November 2016. (Docs. 29, 40).
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,  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).
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).
Merit System Act, DPS, ABI option, and ALEA
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. 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).
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
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 or unclassified. It is undisputed that
Plaintiffs here are in classified positions under the Merit
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.
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
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
(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.
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.
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).
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). 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).
Employees' Retirement System of Alabama (ERS)
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 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.”
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 ...