Alabama sheriff was entitled to qualified immunity when he fired two deputies, based in part on patronage considerations; Terry decision authorized such dismissal, and *1321 “even if [its] rationale ... is somehow weakened by the applicable local law in this case.... ” there was no clearly established law to the contrary.
How later courts described this case
- Alabama sheriff was entitled to qualified immunity when he fired two deputies, based in part on patronage considerations; Terry decision authorized such dismissal, and *1321 “even if [its] rationale ... is somehow weakened by the applicable local law in this case.... ” there was no clearly established law to the contrary.
Written by the judges who cited it.
The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Nov. 12, 2009
No. 08-14734
THOMAS K. KAHN
CLERK
D. C. Docket No. 08-00041-CV-F-N
ROBBIE AUTERY,
SHANE FULMER,
Plaintiffs-Appellants,
versus
KEVIN DAVIS,
in his official capacity as Sheriff of Chilton
County, Alabama, and individually,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of Alabama
(November 12, 2009)
Before DUBINA, Chief Judge, BIRCH and SILER,* Circuit Judges.
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
PER CURIAM:
Appellants Robbie Autery (“Autery”) and Shane Fulmer (“Fulmer”) appeal
the district court’s grant of summary judgment in favor of Appellee Kevin Davis,
Sheriff of Chilton County, Alabama, (“Sheriff Davis”) arising out of their
terminations as deputy sheriffs. They claim that their firings deprived them of
substantive and procedural due process, freedom of association, and freedom of
speech.
The issues presented on appeal are:
1. Whether termination of public service employment can give rise to a
substantive due process claim?
2. Whether the absence of a pre-termination hearing by a state merit review
board created but not constituted is a violation of procedural due process if there is
post-termination state-court review?
3. Whether free speech rights are violated when a sheriff terminates
employees after they complain to colleagues about the sheriff and report alleged
misconduct to the state Attorney General?
4. Whether termination of a deputy sheriff from employment based on
political affiliation violates freedom of association rights when existing circuit law
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holds that a sheriff has absolute authority to hire and fire deputies, though new
state law suggests otherwise?
This court reviews de novo a district court’s grant of summary judgment.
Fanin v. U.S. Dep’t of Veterans Affairs, 572 F.3d 868, 871 (11th Cir. 2009).
After reviewing the record, reading the parties’ briefs, and having the
benefit of oral argument, we conclude that the district court properly granted
summary judgment on all of Autery and Fulmer’s claims. First, this court has
clearly stated that “an employee with a protected interest in his job may not
maintain a substantive due process claim arising out of his termination.”
Bussinger v. City of New Smyrna Beach, 50 F.3d 922, 925 (11th Cir. 1995).
Autery and Fulmer’s claims are procedural in nature, and their claims for
substantive due process protection fail.
We also conclude from the record that Autery and Fulmer have alleged no
facts that indicate that their procedural due process grievances cannot be remedied
by state-court review. In this circuit, state-court review of employment
termination decisions qualifies as an adequate post-deprivation remedy.
McKinney v. Pate, 20 F.3d 1550, 1563 (11th Cir. 1994) (en banc). In this case, the
failure of local officials to compose the merit board under state law is a decision
properly reviewable and remediable by the state court.
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Additionally, by engaging in disruptive speech in addition to whistle-
blowing, Autery and Fulmer’s freedom of speech claim fails as a matter of law
because the balance weighs in favor of the state’s interest in the efficiency of its
public services. Cf. Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S. Ct. 1731,
1734-35 (1968). The district court held, and the record supports, that Autery and
Fulmer’s conduct, viewed as a whole, undermined the morale and disrupted the
efficiency of the department. Accordingly, our decision in Bryson v. City of
Waycross compels us to uphold summary judgment in favor of Sheriff Davis on
the freedom of speech claim. 888 F.2d 1562, 1567 (11th Cir. 1989) (balancing
free speech rights of police officer against department’s interest in promoting
efficient public services and ultimately denying officer’s claims arising out of his
termination).
We emphasize that, standing alone, Autery and Fulmer’s decision to contact
the state Attorney General with concerns about their superior’s activities is not a
valid basis for their termination. See Stanley v. City of Dalton, 219 F.3d 1280,
1290 (11th Cir. 2000) (holding that private accusations made by police officer
about superior’s misconduct are not a permissible basis for termination). The
record in this case establishes, however, that Autery and Fulmer’s communication
with the Attorney General was not the only instance in which they voiced their
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displeasure with Sheriff Davis. Autery and Fulmer admitted to the district court
that “they continued to complain about Sheriff Davis’s decisions with regard to
their employment” to colleagues and, as a result, the deputy in charge of
evaluating department employees “reported their conduct to Sheriff Davis.” (R.
25 at 4.)
Autery and Fulmer’s private and public complaints fit squarely within the
confines of Bryson. The formal complaint made in this case must be weighed in
context with other complaints and statements made to co-workers in the
department. Moreover, there is ample evidence that other disputes with Sheriff
Davis, personal and professional, motivated their speech in this case. Sheriff
Davis has demonstrated that this misconduct was at least a substantial factor in
their dismissal. Accordingly, Autery and Fulmer’s freedom of speech claim fails
as a matter of law.
Finally, we conclude that summary judgment was proper on the political
patronage claim. Public officials are entitled to qualified immunity so long as
their discretionary actions do not violate clearly established statutory or
constitutional rights. Lewis v. City of West Palm Beach, 561 F.3d 1288, 1291
(11th Cir. 2009). It is “not mandated that the Court examine the potential
constitutional violation . . . prior to analyzing whether the right was clearly
5
established.” Id. In Terry v. Cook, 866 F.2d 373, 375 (11th Cir. 1989), we held
that an Alabama County Sheriff could constitutionally base employment decisions
affecting deputy sheriffs on party affiliation. Even if the rationale in Terry is
somehow weakened by the applicable local law in this case, the clearly established
constitutional law at the time of the firings permitted Sheriff Davis’s conduct even
if it was based upon Autery and Fulmer’s political opposition to Sheriff Davis.
Because Terry holds that an Alabama Sheriff may lawfully terminate an officer
who does not support him politically, we need not determine whether Sheriff
Davis had some other lawful motive.
Even in the absence of Terry, Sheriff Davis would still be entitled to
qualified immunity. In Foy v. Holston, 94 F.3d 1528, 1536 (11th Cir. 1996), we
held that a public official is entitled to qualified immunity when the record
establishes at least some lawful motivation for his conduct, in spite of opposing
inferences. See also Stanley, 219 F.3d at 1296. Again, the record reveals
evidence of Autery and Fulmer’s conduct permitting a conclusion that Sheriff
Davis’s decision to terminate Appellants was objectively reasonable. Because
Sheriff Davis’s conduct did not violate clearly established law, he is qualifiedly
immune from Autery and Fulmer’s freedom of association claim.
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For the above-stated reasons, we affirm the district court’s grant of summary
judgment in favor of Sheriff Davis and against Autery and Fulmer.
AFFIRMED.
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