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Sherman v. Franklin

United States District Court, N.D. Alabama, Northeastern Division

January 28, 2019

ANA FRANKLIN, Defendant.



         Defendant Ana Franklin formerly served as the sheriff of Morgan County, Alabama. Plaintiff William R. Sherman worked as a deputy sheriff. Mr. Sherman alleges that Sheriff Franklin constructively discharged him in violation of his First Amendment right to free speech. Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Sheriff Franklin asks the Court to dismiss Mr. Sherman's claim against her. Sheriff Franklin contends that Mr. Sherman cannot state a claim for constructive discharge, and she argues that she is entitled to qualified immunity. (Doc. 5, p. 2; Doc. 13, pp. 1-2). The Court addresses these arguments in turn.


         Rule 12(b)(6) enables a defendant to move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Pursuant to Rule 8(a)(2), a complaint must contain, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Generally, to survive a Rule 12(b)(6) motion to dismiss and meet the requirement of Fed.R.Civ.P. 8(a)(2), “a complaint does not need detailed factual allegations, but the allegations must be enough to raise a right to relief above the speculative level.” Speaker v. U.S. Dep't of Health & Human Servs. Centers for Disease Control & Prevention, 623 F.3d 1371, 1380 (11th Cir. 2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). “Specific facts are not necessary; the statement need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555). In deciding a Rule 12(b)(6) motion to dismiss, a district court must view the allegations in a complaint in the light most favorable to the non-moving party. Sun Life Assurance Co. v. Imperial Premium Fin., LLC, 904 F.3d 1197, 1207 (11th Cir. 2018). A district court must accept well-pled facts as true. Little v. CRSA, 744 Fed.Appx. 679, 681 (11th Cir. 2018).


         Mr. Sherman worked as a deputy sheriff in Morgan County from 2008 to 2016. (Doc. 1, ¶ 3). In 2015, Mr. Sherman complained to Sheriff Franklin and Ron Livingston, a captain with the Morgan County Sheriff's Department, about wage issues. (Doc. 1, ¶¶ 6-8). In reaction to Mr. Sherman's complaints about wages, Captain Livingston told Sheriff Franklin that Mr. Sherman was providing information to the “Morgan County Whistleblower” blog, a blog concerning alleged public corruption (Doc. 1, ¶ 9).[1] That was not true; Deputy Sherman was not supplying information to the blog, but Sheriff Franklin believed Captain Livingston. (Doc. 1, ¶¶ 9-10).

         After receiving Captain Livingston's report, Sheriff Franklin looked for grounds to terminate Mr. Sherman's employment. (Doc. 1, ¶ 10). She asked Morgan County Sheriffs Department employees to “find out what we have or can come up with on Sherman.” (Doc. 1, ¶ 12). The effort was unproductive, so Sheriff Franklin told Deputy Sherman that if he did not resign from the Sheriffs Office, the office would stop funding his legal defense in a separate action. (Doc. 1, ¶ 13). Believing Sheriff Franklin's threat credible, Mr. Sherman resigned. (Doc. 1, ¶ 13).

         Pursuant to § 1983, Mr. Sherman asserts a claim against Sheriff Franklin in her individual capacity for her violation “of his freedom of speech as guaranteed by the First Amendment of the United States Constitution.” (Doc. 1, ¶¶ 2, 18). Mr. Sherman alleges that his constructive discharge was motivated by Sheriff Franklin's erroneous belief that he engaged in speech critical of her and the Morgan County Sheriffs Department. (Doc. 1, pp. 4-6). According to Mr. Sherman, Sheriff Franklin “ensured that [he] was blackballed by the law enforcement community in and around Morgan County, Alabama, ” and he “has since been unable to obtain new employment in law enforcement.” (Doc. 1, ¶ 15).


         The First Amendment limits the situations in which government officials may dismiss or demote an employee when an employee engages in protected speech. Heffernan v. City of Paterson, N.J., 136 S.Ct. 1412, 1416 (2016); Carter v. City of Melbourne, Fla., 731 F.3d 1161, 1168 (11th Cir. 2013). A district court evaluates First Amendment retaliation claims using a four-part test. Moss v. City of Pembroke Pines, 782 F.3d 613, 617-18 (11th Cir. 2015). The district court first considers “whether Plaintiffs speech was made as a citizen and whether it implicated a matter of public concern.'” Moss, 782 F.3d at 618 (quoting Rankin v. McPherson, 438 U.S. 378, 384 (1987)). If the plaintiff spoke as a citizen about a matter of public concern, then the court must “weigh Plaintiffs First Amendment interests against the City's interest in regulating his speech to promote the efficiency of the public services it performs through its employees.'” Moss, 782 F.3d at 618 (quoting Pickering v. Bd. of Educ. of Twp. High Sch. Dist., 391 U.S. 563 (1968)). If the plaintiffs First Amendment interest prevails, then the plaintiff must show that the protected speech “was a substantial motivating factor” in an adverse employment action. Moss, 782 F.3d at 618. If the plaintiff satisfies the first three parts of the test, then at the final step of the analysis, the burden shifts to the defendant to show that the defendant would have terminated the plaintiff even in the absence of the protected speech. Moss, 782 F.3d at 618.

         A. Perceived Speech

         Initially, Sheriff Franklin took the position that Mr. Sherman's claim was invalid because he did not engage in actionable speech. Sheriff Franklin argued that a First Amendment claim could not rest on perceived as opposed to actual speech. (Doc. 5, pp. 2-6). After counsel for Mr. Sherman brought to the attention of counsel for Sheriff Franklin the United States Supreme Court's decision in Heffernan, Sheriff Franklin abandoned her argument. (Doc. 13, p. 1 (“Heffernan nevertheless suggests that the First Amendment protects perceived speech.”)). A plaintiff may premise a First Amendment claim on perceived speech.

         B. Constructive Discharge

         “[W]hen an employer deliberately makes an employee's working conditions intolerable and thereby forces him to quit his job, ” the employee suffers a constructive discharge. Bryant v. Jones, 575 F.3d 1281, 1298 (11th Cir. 2009). To establish an adverse employment action based on a constructive discharge theory, a plaintiff must show that “the work environment and conditions of employment were so unbearable that a reasonable person in that person's position would be compelled to resign.” Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1363 (11th Cir. 1994). The plaintiff's work conditions must be more severe or pervasive than the conditions that will support a hostile work environment claim. Bryant, 575 F.3d at 1298-99. In addition, “[a] constructive discharge will generally not be found if the employer is not given sufficient time to remedy the situation.” Kilgore v. Thompson & Brock Mgmt., Inc., 93 F.3d 752, 754 (11th Cir. 1996).

         Mr. Sherman alleges that when Sheriff Franklin was unable to identify grounds for terminating him for his perceived speech, she gave him an ultimatum. She told him that if he did not resign, the Sheriff's Department no longer would fund his defense or provide indemnity in a § 1983 action pending against him in federal court. Given the Hobson's choice, Mr. Sherman resigned. (Doc. 1, ¶¶ 12-13). These allegations, taken as true at this stage of the litigation, demonstrate that Sheriff Franklin intended to make Mr. ...

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