Vanlandingham v. The City of Abbeville, Alabama

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

NOEL VANLANDINGHAM, )

)

Plaintiff, )

)

v. ) Civil Act. No. 1:19cv500-ECM

) (wo)

THE CITY OF ABBEVILLE, ALABAMA, )

)

Defendant. )

MEMORANDUM OPINION and ORDER

Now pending before the Court is a motion to dismiss (doc. 26) filed by the City of

Abbeville, Alabama (“the City’) on January 8, 2020.

The Plaintiff, Noel Vanlandingham (“Vanlandingham”), originally filed a verified

complaint in the Circuit Court of Henry County, Alabama. The case was removed to

federal court on the basis of federal question subject-matter jurisdiction. In response to

this Court’s ruling on a previous motion to dismiss, and with leave of Court,

Vanlandingham filed an amended verified complaint bringing a state-law claim for breach

of contract (count one) and federal law claims for violation of the First Amendment to the

United States Constitution and the Due Process Clause of the Fourteenth Amendment

(count two). (Doc. 22).

For reasons to be discussed, the motion to dismiss is due to be GRANTED in part

and DENIED in part.

I. FACTS

The motion to dismiss is supported by attachments to the City’s motion; therefore,

the Court first must address the information which it can consider in ruling on a Rule

12(b)(6) motion to dismiss and then will set out the relevant facts.

A. Information to be Considered in Ruling on the Rule 12(b)(6) Motion

Although courts generally only consider the language of a complaint in deciding a

Rule 12(b)(6) motion to dismiss, a district court may consider an extrinsic document if it

is (1) central to the plaintiff's claim, and (2) its authenticity is not challenged. Speaker v.

U.S. Dep't of Health & Human Servs. Centers for Disease Control & Prevention, 623 F.3d

1371, 1379 (11th Cir. 2010) (quotation omitted). The exception also may apply when a

plaintiff refers to a document in its complaint, the document is central to its claim, its

contents are not in dispute, and the defendant attaches the document to its motion to

dismiss. See Fin. Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007)

(stating that because the document was attached to the motion to dismiss, there was notice

that the district court might consider the document, and because it is referred to in the

complaint, it is central to claim; therefore, its consideration comports with the requirements

of notice pleading, and neither party challenges its authenticity).

The City has attached to its motion a recording of the meeting between Amanda

Mills (“Mills”) and Vanlandingham as well as a transcript of that recording. In his response

to the motion to dismiss, Vanlandingham argues that the City relies on “extrinsic facts”

which are more properly considered in the context of a motion for summary judgment, but

does not contest the authenticity of the City’s attachments. (Doc. 32 at 1). He also

acknowledges that the amended complaint refers to the audio recording. (Doc. 32 at 2).

The Court concludes, therefore, that it may consider the recording and the transcript of the

recording in the context of a motion to dismiss. Fin. Sec. Assur., Inc., 500 F.3d at 1284.

The City also asks the Court to disregard allegations of the verified amended

complaint which are contradicted by the recording. Specifically, the verified amended

complaint alleges that Mills secretly recorded a conversation with Vanlandingham, (doc.

22 at 2), but in the transcript of the recording Mills tells Vanlandingham she is recording

him. (Doc. 27-4 at 37). When it comes to accepting as accurate the substance of an exhibit

attached to a complaint, courts are to follow the same general pleading standards that apply

under the Federal Rules of Civil Procedure, so that when exhibits attached to a complaint

contradict general and conclusory allegations of the pleading, the exhibits govern, and vice

versa. Gill, as Next Friend of K.C.R. v. Judd, 941 F.3d 504, 514-15 (11th Cir. 2019).

Therefore, the Court accepts the more specific statement of the recording transcript that

Mills told Vanlandingham she was recording their conversation.

The City also has attached to its motion the City of Abbeville Personnel Policies

and Procedures Manual. The amended verified complaint refers to and quotes from this

manual. (Doc. 22 at ¶¶ 9,10, 13, 24). Vanlandingham has not disputed the authenticity of

the manual attached to the motion. See Fin. Sec. Assur., Inc., 500 F.3d at 1284. Therefore,

the Court will consider the manual. See Butler v. Cleburne Cty. Comm'n, 2012 WL

2357740, at *21 (N.D. Ala.)(stating “Plaintiff does not offer anything to dispute the

authenticity, content, or relevance of the County Handbook excerpts filed by the

defendants. Thus, the County Handbook excerpts may be considered without converting

the motion to one for summary judgment.”), report and recommendation adopted, 2012

WL 2357741 (N.D. Ala. 2012). The Court will, therefore, consider the portions of the

manual attached to the motion to dismiss.

B. Facts Alleged in the Amended Verified Complaint and in Defendant’s

Attachments Referenced in the Complaint

Plaintiff, Vanlandingham, at all times relevant to this case, was the Chief of the City

of Abbeville Municipal Police Department.

On March 25, 2019, a deputy sheriff with the Henry County Sheriff’s Office made

a stop of a vehicle driven by Mills and occupied by a person identified only as Anthony.

Mills videoed the actions of the deputy sheriff during the stop and subsequent arrest and

later posted the video on Facebook. (Doc. 22 ¶4). As a result, the Henry County Sheriff’s

Office received hundreds of telephone calls critical of the sheriff’s deputy’s actions. Mills’

vehicle was also impounded pursuant to her arrest.

On April 19, 2019, Mills approached Vanlandingham in the Municipal Court

building in Abbeville, Alabama and asked to speak to him, videoing their conversation.

Mills spoke to Vanlandingham in his office while he was wearing his badge. She said that

she was having trouble retrieving her belongings from the vehicle which had been

impounded as a result of her arrest. Vanlandingham advised her to talk to her attorney to

make inquiry relating to the vehicle. (Id. ¶7).

During the course of their conversation, Vanlandingham was critical of the Sheriff’s

Department’s actions toward Mills. During their meeting, for example, the following

exchange occurred

CHIEF VANLANDINGHAM: Now, personally my opinion,

I would have went about that thing a whole lot different.

MS. MILLS: Right. So would we have, honestly.

CHIEF VANLANDINGHAM: I do believe -- and this is -- this

is how I go about things. I'm going to talk to you respectfully

and I'm going to explain why I'm doing stuff, and I'm going to

explain why I'm asking for his driver's license. I'm going to

tell you beforehand -- if I smell dope in your car and y'all won't

be cooperative with me, I'm going to read you your rights right

then.

MS. MILLS: That would have been perfect.

CHIEF VANLANDINGHAM: And then you're going to

know, okay, we've stepped it up just a little notch and this is

why he's doing this. That's -- that's just the way that we kind

of do things.

MS. MILLS: Right. And that makes sense.

CHIEF VANLANDINGHAM: Because you have a – I mean,

you do have a right to know what’s going on.

(Doc. 27-4 at 12). Vanlandingham also told Mills, “as far as this not being able to get your

property out, I might get my attorney to call up there and say why can't they get their

property . . . [b]ecause they have no right to keep you from getting your personal items out

of the vehicle.” (Doc. 27-4 at 20: 1-8).

On May 13, 2019, Vanlandingham was called to the Mayor’s office. He was asked

about a complaint which had been presented to the City Council. Vanlandingham was told

that the complaint had been presented during executive session and so the nature of it could

not be disclosed. Vanlandingham alleges, therefore, that he was unable to respond to the

complaint. (Doc. 22 ¶12).

On May 15, 2019, the Mayor advised Vanlandingham in a letter that a complaint

against him regarding an audio recording was being placed on the agenda of the City

Council. (Id. ¶13). On May 20, 2019, the Mayor and the Abbeville City Council went into

executive session where they discussed the complaint about Vanlandingham outside of his

presence and the presence of Vanlandingham’s legal counsel. (Id. ¶14). The City Council

approved a punishment of suspension of Vanlandingham without pay for ten work days for

failing to comply with a directive that he “get along with” the Henry County Sheriff. (Id.

¶16). The amended verified complaint also alleges that Vanlandingham did not directly or

indirectly violate any prior legal directive of his superiors. (Id. ¶31).

The City’s Personnel Policy provides that an employee may be suspended from duty

and pay for a period not to exceed ten days for cause after notice and a departmental

hearing. (Id. ¶15). The policy also provides that the City reserves the right to make changes

in either city policies or benefits at any time. (Doc. 27-1 at 4).

By letter dated May 23, 2019, the Mayor advised Vanlandingham that he was

suspending him for ten days and that Vanlandingham had five days to appeal to the City

Council. (Doc. 22 ¶19). An appeal hearing was held on June 3, 2019, and the suspension

was upheld. (Id. ¶20).

II. STANDARD OF REVIEW

A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against the

legal standard set forth in Rule 8: “a short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss,

a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“Determining whether a complaint states a plausible claim for relief [is] … a

context-specific task that requires the reviewing court to draw on its judicial experience

and common sense.” Id. at 663 (alteration in original) (citation omitted). The plausibility

standard requires “more than a sheer possibility that a defendant has acted unlawfully.”

Iqbal, 556 U.S. at 678. Conclusory allegations that are merely “conceivable” and fail to

rise “above the speculative level” are insufficient to meet the plausibility standard.

Twombly, 550 U.S. at 555, 570. This pleading standard “does not require ‘detailed factual

allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-

me accusation.” Id. at 678. Indeed, “[a] pleading that offers ‘labels and conclusions’ or ‘a

formulaic recitation of the elements of a cause of action will not do.’” Id.

III. DISCUSSION

The City has moved to dismiss Vanlandingham’s complaint in its entirety. The

Court begins with the grounds for dismissal asserted as to the First Amendment Claim and

then moves to those regarding the state-law claim, Vanlandingham having conceded that

his due process claim is due to be dismissed. (Doc. 32 at 1 & n.1).

A. First Amendment Claim

The City moves to dismiss Vanlandingham’s First Amendment claim on the

grounds that he was speaking in his capacity as a City employee and so is not offered First

Amendment protection, and also that his interest in speech is outweighed by the City’s

interest.

A government employer may not demote or discharge a public employee in

retaliation for speech protected by the First Amendment. Bryson v. City of Waycross, 888

F.2d 1562, 1565 (11th Cir. 1989). However, a citizen who enters public service “must

accept certain limitations on [her] freedom[s].” Garcetti v. Ceballos, 547 U.S. 410, 418

(2006). A government employee does not “relinquish the First Amendment rights he

would otherwise enjoy as [a citizen] to comment on matters of public interest.” Pickering

v. Bd. of Educ., 391 U.S. 563, 568 (1968).

The U.S. Supreme Court has a two-part test for whether speech of a public employee

is constitutionally protected: (1) whether the employee spoke as a citizen on a matter of

public concern and, if so, (2) whether the relevant government entity had an adequate

justification for treating the employee differently from any other member of the general

public. Garcetti, 547 U.S. at 418 (citations omitted). Both steps are questions of law.

Alves v. Board of Regents of the Univ. Sys. of Georgia, 804 F.3d 1149, 1159 (11th Cir.

2015).

The first question itself has two requirements: for speech to be constitutionally

protected, an employee must have spoken (1) as a citizen and (2) on a matter of public

concern. Id. at 1160. Practical factors relevant to the inquiry include the employee's job

description, whether the speech occurred at the workplace, and whether the speech

concerned the subject matter of the employee's job. Id. at 1161. Whether the speech was

given to a limited audience or as part of a public dialogue is also a consideration. Anderson

v. Burke County, Ga., 239 F.3d 1216, 1221 (11th Cir. 2001). This Court will address each

step of the analysis in turn.

1. Whether Speech by the Public Employee Was as a Citizen or as an Employee

As to the first requirement under Garcetti, the central inquiry is whether the speech

at issue “owes its existence” to the employee’s professional responsibilities. Garcetti, 547

U.S. at 412-22. Activities undertaken in the course of performing one's job are activities

undertaken “pursuant to employment responsibilities.” Id. at 424. Concerns raised “in the

course of performing—or, more accurately, in the course of trying to perform—their

ordinary roles” are “made in furtherance of their ability to fulfill their duties” and therefore

not protected speech. Alves, 804 F.3d at 1164–65. The fact that an employee learned of

the subject matter of his speech in the course of his employment, however, cannot alone

transform speech into employee speech. Id. at 1163. It is the speech itself which must owe

its existence to the public employee’s professional responsibilities. Id. So, for example, an

employee who is asked to review another employee’s medical qualifications and speaks

about those medical qualifications, the process for hiring, and potential liability for the

government based on its process, has engaged in speech as an employee, see King v. Board

of Cnty. Comm’nrs, 916 F.3d 1339, 1347 (11th Cir. 2019), whereas an employee who

provides testimony compelled by subpoena and the subject matter of the testimony

concerns information learned during that employment is not speaking as an employee, see

Lane v. Franks, 573 U.S. 228, 240-41 (2014).

In its analysis, a district court has to consider the “content, form, and context” of the

allegedly protected speech in light of the plaintiff's job duties. Moss v. City of Pembroke

Pines, 782 F.3d 613, 621 (11th Cir. 2015).

In the instant case, the City has argued that this Court should consider the allegation

that Vanlandingham spoke to Mills while acting in compliance with his duties as the Police

Chief. However, the citation given by the City for that allegation is Vanlandingham’s

original verified complaint, (doc. 27 at 41), and the City does not contend that there is any

allegation to that effect in the amended verified complaint. In fact, the amended verified

complaint alleges that Vanlandingham, in speaking with Mills, was speaking privately and

giving his personal opinion about the County Sheriff’s Office and not speaking about any

policy of the City. (Doc. 22 ¶¶36, 37). “Under the Federal Rules, an amended complaint

supersedes the original complaint.” Fritz v. Standard Sec. Life Ins. Co. of New York, 676

F.2d 1356, 1358 (11th Cir. 1982). Therefore, the Court will not consider the allegations of

the original verified complaint in light of Vanlandingham’s properly filed amended verified

complaint. See McLaughlin v. Pezzolla, 2007 WL 676674, at *7 (N.D.N.Y. 2007)

(recognizing that the initial complaint gave the impression her speech was covered by

Garcetti but allowed amendment of complaint so that it contained allegations that could

support plaintiff's claims that some of her speech was beyond the scope of her professional

duties).

The primary thrust of the City’s motion is that the content of the speech itself shows

that Vanlandingham was speaking to Mills as part of his official job responsibilities. The

City argues that Vanlandingham acknowledged that he was speaking as part of his job

duties in a portion of the recording near the very end of the conversation between Mills

and Vanlandingham in which Mills asked Vanlandingham whether he is able to give

opinions, Vanlandingham asked “legal opinions?;” another speaker responded, “personal

opinions;” Mills said, “human opinions;” and Vanlandingham said that he can “off-record.”

(Doc. 27-4 at 49: 15-20). The transcript is unclear as to what Vanlandingham meant as

offering an opinion “off-record;” however, Vanlandingham then asked if they are off-

record and responded, “if you would like,” when Mills said she can turn off the recording.

(Doc. 27-4 at 49: 21-23). This ambiguous statement is not sufficient to establish that

Vanlandingham was speaking as part of his job duties, given his specific allegation in the

amended verified complaint that he was offering personal opinions during the recorded

part of the conversation with Mills.

The City also points out that during the conversation with Mills, Vanlandingham

referred to “my” department and staff and explained how he handles law enforcement

situations. The City places significance on the fact that Vanlandingham explained that

when citizens ask for information, he gets it for them, and that that is the way his

department runs. (Doc. 27-4 at 37-38).

It is clear from the transcript of the recording that Vanlandingham spoke in his

workplace while wearing his badge. These factors weigh in favor of a finding that he spoke

as an employee. See Keller v. City of Tallahassee, 181 F. Supp. 3d 934, 953 (N.D. Fla.

2015) (stating all of the speech acts took place in the work environment which by itself is

not dispositive, but strongly suggests that the speech was made as an employee.).

It is also clear that Vanlandingham advised Mills that she had the right to know

where her car was impounded and that she could seek advice from an attorney. (Doc. 27-4

at 20:1-8). He also spoke about what happens in his own city police department and how

his officers treated citizens. Vanlandingham also offered criticism of Michael Miller, a

sheriff’s deputy, who was formerly employed with the police department. (Doc. 27-4 at

18: 9-16). The significance of these statements for First Amendment analysis must be

considered as part of the practical inquiry.

It is the law in the Eleventh Circuit that when a public employee is approached by

his employer about giving information as part of the employee’s official job duties, that is

a significant factor in First Amendment analysis. See King, 916 F.3d at 1346 (holding that

employee spoke as an employee and noting that speech was begun because the employee

had been asked to make an inquiry as part of the employee’s job responsibilities). In this

case, however, Vanlandingham was not speaking in response to an inquiry from his

employer, but rather from a citizen. In conducting the analysis in King, the court had before

it an affidavit from the plaintiff as to the scope of her job responsibilities. Id. The only

allegation in the amended verified complaint in this case relevant to the question of whether

responding to a citizen’s inquiry was within the scope of Vanlandingham’s job

responsibilities is his explanation that he gets information if he is asked something and

does not have the information. The amended verified complaint alleges, however, that in

speaking to Mills, Vanlandingham was expressing his personal views. (Doc. 22 ¶36).

Even assuming that addressing a citizen’s complaints and/or request for advice from

a citizen about the police department is within the police chief’s job responsibilities, the

speech at issue here was about a separate branch of law enforcement, not the police

department. In his interaction with Mills, Vanlandingham stated that he has nothing to do

with the Sheriff’s Department. (Doc. 27-4 at 17: 1-7) (explaining that when a concern was

raised with regard to Mills’ arrest Vanlandingham said, “I ain't got nothing to do with the

sheriff's department.”). At another point, when Mills described a separate interaction she

had with law enforcement, Vanlandingham again stated that, based on the description of

the vehicle, it was not with his department,. (Doc. 27-4 at 36: 11-14). Vanlandingham also

offered an opinion as to how Mills should be treated as a “citizen of this county.” (Doc.

27-4 at 38: 2-5).

The City argues that the fact that Vanlandingham was speaking about another

branch of government is not dispositive because the plaintiff in Garcetti also criticized

another branch. The difference, however, is that the public employee in Garcetti was a

deputy district attorney commenting on actions by law enforcement in a “disposition memo

. . . that is part of what he, as a calendar deputy, was employed to do.” Garcetti, 547 U.S.

at 421. In other words, while it may be that speech critical of a separate law enforcement

branch could be pursuant to official duties, the speech at issue here was speech to a citizen

in response to her inquiries about a different department. The relevant inquiry is whether

statements were made as a citizen “who do[es] not work for the government.” Akins v.

Fulton Cty., Ga., 278 F. App'x 964, 971 (11th Cir. 2008). The fact that Vanlandingham’s

advice was based on knowledge gained through his employment is not dispositive because

the fact that an employee learned of the subject matter of his speech in the course of his

employment cannot alone transform speech into employee speech. See Alves, 804 F.3d at

1163.

While not directly on point, Carollo v. Boria, 833 F.3d 1322 (11th Cir. 2016) is

instructive. In Carollo, the Eleventh Circuit held that a public employee spoke as a private

citizen, not an employee, when he complained about misconduct by fellow public

employees. 833 F.3d at 1330-31. The public employee in Carollo was a city manager who

spoke out at public city council meetings and to local and federal authorities against alleged

campaign finance law violations by the mayor. 833 F.3d at 1330. While the defendants

pointed to the speaker’s job responsibilities to ensure that laws are enforced, the Eleventh

Circuit explained that “it is not appropriate at the motion to dismiss stage for us to interpret

the Municipal Charter's ambiguous job description for the City Manager” and that

discovery was needed to show which “laws [the plaintiff] had the responsibility to enforce

or administer and, in fact, enforced or administered in the ordinary course of his job

responsibilities.” Id. at 1330; see also King, 916 F.3d at 1350 (explaining that in Carollo

the court “held that enforcing Florida's campaign finance laws was not within the city

manager's ordinary job duties.”). The Eleventh Circuit further held that status as a

supervising public official does not mean that an employee cannot plausibly allege that he

spoke as a citizen. 833 F.3d at 1330. The court explained that while it read “Moss, like

Garcetti, to stand for the proposition that a supervising public official's ordinary job

responsibilities often extend beyond what is written in a formal job description,” the

defendants could not support an argument that the plaintiff’s “administrative

responsibilities included enforcing Florida's campaign finance laws . . . in the absence of

discovery that better reveals Carollo's ordinary job responsibilities as City Manager.” Id.

The court further explained that it was not appropriate to focus on whether an ordinary

citizen could have engaged in the speech in question, but instead, the “focus is on whether

Carollo as City Manager ordinarily made reports to law enforcement and other agencies

about violations of Florida’s campaign finance laws.” Id. at 1331.

Following the Eleventh Circuit’s application of First Amendment law in the context

of the present motion to dismiss, it is not dispositive that Vanlandingham supervised a

department or that he learned the subject matter of his speech by virtue of his employment.

Id. Instead, to decide whether, as a matter of law, Vanlandingham spoke as an employee

and not as a citizen, this Court must conduct a practical inquiry to determine whether the

alleged facts show that Vanlandingham’s speech was within his ordinary job

responsibilities. This Court concludes that, based on the allegations of the amended

verified complaint, Vanlandingham spoke in response to a citizen’s questions about actions

by a different law enforcement branch, not the City police department which employed

him, and in the absence of sufficient facts to more fully analyze the context of that speech,

he has plausibly alleged that he was not speaking pursuant to his employment

responsibilities. Further analysis of this issue may be undertaken by the Court at a later

stage of this case, after factual development. See id. at 1332 (noting that “each of the

relevant cases from the Supreme Court and this Circuit to undertake Garcetti's “practical

inquiry” concerning whether a plaintiff spoke pursuant to ordinary job responsibilities or

as a citizen did so at the summary judgment stage or later in the life of the case.”).

Therefore, the Court turns to the next step of the analysis.

2. Whether the Speech Was on a Matter of Public Concern

The next inquiry in a First Amendment analysis is whether the speech was on a

matter of public concern. Alves, 804 F.3d at 1159. It is well-established that exposing

governmental inefficiency and misconduct is a matter of considerable significance.

Garcetti, 547 U.S. at 425. The City does not contend otherwise in this case.

Vanlandingham engaged in speech critical of the Sheriff’s Department’s actions.

Therefore, for purposes of the pending motion to dismiss, this prong of the analysis has

been satisfied.

3. The Pickering Balancing Test

In balancing the City's interest in promoting efficient government services against

Vanlandingham’s interest in protected freedom of speech, this Court must consider (1)

whether the speech at issue impedes the government's ability to perform its duties

efficiently, (2) the manner, time, and place of the speech; and (3) the context within which

the speech was made. See Martinez v. City of Opa–Locka, 971 F.2d 708, 712 (11th

Cir.1992) (quotation omitted). A court's “pertinent considerations [include] whether the

statement impairs discipline by superiors or harmony among co-workers, has a detrimental

impact on close working relationships for which personal loyalty and confidence are

necessary, or impedes the performance of the speaker's duties or interferes with the regular

operation of the enterprise.” Rankin v. McPherson, 483 U.S. 378, 388 (1987).

In this case the City argues that its interest as a paramilitary organization in

maintaining order within its organization outweighs Vanlandingham’s interest in speech.

Vanlandingham argues in response that he has alleged no facts which demonstrate that this

justification outweighs his interest in speaking as a citizen on a matter of public concern,

and that discovery is needed before conducting Pickering balancing.

Courts have recognized that “in a law enforcement agency, there is a heightened

need for order, loyalty, morale and harmony, which affords a police department more

latitude in responding to the speech of its officers than other government employers.”

Oladeinde v. City of Birmingham, 230 F.3d 1275, 1293 (11th Cir. 2000). Cases involving

law enforcement acknowledge that “comments concerning co-workers' performance of

their duties and superior officers' integrity can directly interfere with the confidentiality,

esprit de corps and efficient operation of the police department.” Busby v. City of Orlando,

931 F.2d 764, 774 (11th Cir. 1991) (quotation and citation omitted). In this case, however,

the speech at issue did not concern co-workers or superior officers. Furthermore,

Vanlandingham alleged that his expression did not interfere with internal police operations

or with order and discipline and was not likely to do so. (Doc. 22 at ¶30). This Court must

accept those allegations. See Cotriss v. City of Roswell, 2017 WL 5642248, at *6 (N.D. Ga.

2017) (denying motion to dismiss and considering allegations that the plaintiff’s speech

“did not in any way impair or reflect on the City or the RPD” and “did not impede the City

or RPD's ability to perform its duties efficiently.”).

In its brief, the City also has taken the position that Vanlandingham’s comments

undermined relationships among law enforcement officers, and offers legal argument as to

why such relationships are important. (Doc. 33 at 10). At the motion to dismiss stage,

however, the Court does not have any allegations before it as to the effect of

Vanlandingham’s speech on relationships with other law enforcement branches or its

significance. At most, the amended verified complaint notes that a reason given for

Vanlandingham’s discipline was that he violated a directive to “get along with the Henry

County Sheriff.” (Doc. 22 at ¶16). The amended verified complaint also alleges, however,

that his speech did not “directly or indirectly violate any prior legal directive from his

superiors.” (Doc. 22 ¶31).

The City’s argument requires the Court to infer the negative ramifications of

Vanlandingham’s speech, which is an approach rejected by courts. See Fernandez v. Sch.

Bd. of Miami-Dade Cty., 201 F. Supp. 3d 1353, 1369 (S.D. Fla. 2016) (noting in conducting

Garcetti analysis that the court cannot make any inference detrimental to the plaintiffs or

their claims at this stage); Brown v. Greene Cty. Comm'n, 806 F. Supp. 2d 1193, 1210

(N.D. Ala. 2011) (stating, “The Commission essentially requests that the court infer or

presume the negative ramifications of Brown's speech, if there were any, from the speech

itself and without any other evidence or explanation. Such a request, however, is not

consistent with Eleventh Circuit precedent.”); see also Eiland v. City of Montgomery, 797

F.2d 953, 959 (11th Cir. 1986) (discounting testimony as to the disruptive nature of speech

because it was “almost uniformly based upon assumption and speculation as to how the

poem might have been perceived by other officers.”). While an employer does not have to

prove an actual negative impact under Pickering balancing, there must be a “reasonable

possibility of adverse harm.” Moss, 782 F.3d at 622. This Court cannot reach that

conclusion at this stage in the proceedings. See Higbee v. E. Michigan Univ., 399 F. Supp.

3d 694, 704 (E.D. Mich.) (finding in the context of a motion to dismiss that without further

factual development, the court cannot conclude that the defendants’ predictions of

workplace or student disharmony were reasonable), case dismissed, 2019 WL 5079254

(6th Cir. 2019).

“Based on the facts as pled and taking the facts most favorable to Plaintiff, the Court

cannot find that Defendant’[s] interests [as a paramilitary organization] outweigh Plaintiff's

First Amendment freedom of speech interests.” Cochran v. City of Atlanta, 150 F. Supp.

3d 1305, 1314 (N.D. Ga. 2015). Factual development of this case may warrant a different

conclusion at a later point in the proceedings, but at this point, the motion to dismiss is due

to be denied as to the First Amendment claim.

B. Breach of Contract

The City moves to dismiss the state-law breach of contract claim on the basis that

Vanlandingham was an at-will employee and that the relevant employee handbook

disclaims any alteration to the employment-at-will relationship.

Vanlandingham argues that he is not seeking to enforce an employment contract,

but is instead alleging that the disciplinary procedure used in this case violated the

personnel policies and procedures of the City.

Whether the terms of a handbook meet the requirements of a contract offer is

generally a question of law to be decided by a court. See Carr v. Stillwaters Development

Co., 83 F. Supp. 2d 1269, 1278 (M.D. Ala. 1999). Alabama courts have held that

employers are entitled to prevail as a matter of law on contract claims founded upon

employee handbooks that expressly disclaim an intention to make a contract or reserve to

the employer the right to change policies unilaterally. See Abney v. Baptist Med. Centers,

597 So. 2d 682, 683 (Ala. 1992); see also Butler v. Cleburne Cty. Comm'n, 2012 WL

2357740, at *20 (N.D. Ala. 2012) (collecting state and federal cases), report and

recommendation adopted, 2012 WL 2357741 (N.D. Ala. 2012). The handbook in question

in this case has such a disclaimer. (Doc. 27-1 at 4). Therefore, even though he has

attempted to recast his claim as a claim for violation of the terms of the policy handbook

in disciplining him in violation of the policy manual, rather than as a breach of an

employment contract, Vanlandingham’s claim is due to be dismissed under Alabama law.

See id. (rejecting claim that Baptist Medical Centers had failed to follow the procedures set

out in the handbook and, therefore, had breached an agreement). The motion to dismiss

will be GRANTED as to the state-law claim.

IV. CONCLUSION

For the reasons discussed, it is ORDERED as follows:

1. The motion to dismiss (doc. 26) is GRANTED as to the federal due process

claim and state-law breach of contract claim, and those claims are DISMISSED

with prejudice.

2. The motion to dismiss (doc. 26) is DENIED as to the federal First Amendment

claim, and the case will proceed on that claim.

DONE this 20th day of April, 2020.

/s/ Emily C. Marks

EMILY C. MARKS

CHIEF UNITED STATES DISTRICT JUDGE