United States District Court, N.D. Alabama, Northeastern Division
WILLIAM R. SHERMAN, Plaintiff,
ANA FRANKLIN, Defendant.
MEMORANDUM OPINION AND ORDER
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE.
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.
STANDARD OF REVIEW
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
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, ¶
That was not true; Deputy Sherman was not supplying
information to the blog, but Sheriff Franklin believed
Captain Livingston. (Doc. 1, ¶¶ 9-10).
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).
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).
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.
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
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).
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. ...