Mitchell v. Town of Hayneville, Alabama

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

KELVIN MITCHELL, )

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 2:20cv252-MHT

) (WO)

TOWN OF HAYNEVILLE, )

ALABAMA, et al., )

)

Defendants. )

OPINION AND ORDER

Plaintiff Kelvin Mitchell is the chief of police for

the Town of Hayneville, Alabama, a position he has held

more-or-less consistently since 2004. This suit concerns

the more-or-less.

Mitchell alleges that he backed the wrong horse in a

town council election and that the council summarily

fired him in retaliation when it finally was able to

convene a post-election quorum two years later. He was

out of the job for about two and a half months; he then

returned to administrative leave with pay and later

resumed work as the police chief. He now names as

defendants the Town of Hayneville, three current council

members in their individual capacities only, and a former

council member in both her official and individual

capacities. He asserts six claims: violations of (1) the

Fair Labor Standards Act (FLSA), 29 U.S.C. § 201; (2) the

continued-coverage notice provisions of the Employee

Retirement Income Security Act (ERISA), 29 U.S.C. § 1166;

(3 & 4) his Fourteenth Amendment rights, as enforced

through 42 U.S.C. § 1983, to procedural due process and

to be free of retaliation for political activity

protected by the First Amendment; and (5 & 6) state-law

guarantees of his contract rights and protection from

wrongful termination. All six of Mitchell’s claims are

brought against the Town of Hayneville, and he brings his

due-process and First Amendment claims against the four

individual defendants as well.

The court has jurisdiction to hear his FLSA, ERISA,

due-process, and First Amendment claims under 28 U.S.C.

§ 1331 (federal question), 29 U.S.C. § 216(b) (FLSA),

29 U.S.C. § 1132(e) (ERISA), and 28 U.S.C. 1343 (civil

2

rights), and his state-law claims under 28 U.S.C. § 1367

(supplemental jurisdiction).

The case is now before the court on defendants’

motion to dismiss Mitchell’s ERISA, due-process, and

state-law claims. They also include in their motion the

First Amendment claim to the extent it is brought against

former council member Cynthia McDonald in her official

capacity. For the reasons that follow, the court will

grant in part and deny in part defendants’ motion.

Mitchell’s ERISA claim will be dismissed, as he concedes

it should be, because that statute’s notice requirements

do not apply to government entities; however, he will be

permitted to amend his complaint to state a similar claim

under the applicable Public Health Services Act (PHSA)

instead, 42 U.S.C. § 300bb-6. His due-process claims

against the defendant councilmembers in their individual

capacities are barred by qualified immunity, but his

claim against the town may proceed. His claims against

McDonald in her official capacity will be dismissed. His

state-law claims are properly pleaded and may proceed.

3

(Also, because they are not challenged in the motion to

dismiss, Mitchell’s FLSA claim and his First Amendment

claim will proceed, except to the extent that he brings

the First Amendment claim against McDonald in her

official capacity.)

I. MOTION-TO-DISMISS STANDARD

In considering a defendant’s motion to dismiss, the

court accepts the plaintiff’s allegations as true, see

Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), and

construes the complaint in the plaintiff’s favor, see

Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993). The

court may draw “reasonable inferences” from the facts

alleged in the complaint. Chesser v. Sparks, 248 F.3d

11117, 1121 (11th Cir. 2001).

To survive a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6), 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.

4

Corp. v. Twombly, 550 U.S. 544, 570, (2007)). “A claim

has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged.” Id.

II. BACKGROUND

The details of the contested election that preceded

Mitchell’s firing are set forth at length in his

complaint, but only a few are relevant to his claims. In

August 2016, the Town of Hayneville, Alabama, held its

quadrennial municipal election. Mitchell supported an

unsuccessful candidate for town council. This election

became the subject of great controversy and voluminous

litigation, ultimately producing a decision from the

Supreme Court of Alabama. See Ex parte Scrushy, 262 So.

3d 638 (Ala. 2018). On April 18, 2018, shortly after the

election disputes were resolved in the courts, the

council met and voted to remove Mitchell from his once

and future position as police chief.

5

Mitchell was at the April meeting, but the facts

alleged in the complaint indicate that he did not have

prior notice of reasons why the council might seek to

remove him from his post nor any opportunity to present

his side of the story at that time. In early July, the

council met again and voted to reinstate Mitchell to his

position, but to place him on administrative leave with

pay. While he was out of the job between April and July,

Mitchell continued to receive a paycheck because he was

being paid out his accrued leave time. His health-care

coverage ended on July 1; based on the fact that he was

returned to administrative leave with pay on July 2, the

court infers that his coverage resumed that day.

In November 2018, Mitchell received a letter with

notice of the reasons why the council was considering

terminating him, and he was given the opportunity to

request a hearing on the charges. He did so, and the

hearing was held on December 3, 2018, with Mitchell and

his attorney present. After hearing Mitchell’s evidence,

the council met again on December 10 to decide whether

6

to terminate him, but the vote split 2-2. Mitchell

resumed his duties as police chief the following week and

has remained in the job since then.

III. DISCUSSION

A threshold matter in resolving the claims that are

the subject of the present motion is determining exactly

what remedies Mitchell seeks.1 This turns out to be a

complicated and hotly disputed question with consequences

for nearly all counts of his complaint. He can’t be

suing for his job because he continues to be the town’s

police chief, but he could be suing for his job security

because he claims he was never formally reappointed to

the position, which carries certain tenure protections

under Alabama law. He can’t sue for back pay because he

continued to receive a paycheck through his return to the

1. Although Mitchell specifies certain remedies, he

also requests “such further relief as the Court may

award” for all of his claims, as well as “such other and

further relief as is just and proper” for his suit as a

whole. Amended Complaint (doc. no. 8) at 16-23.

7

job in July 2018, but he could sue for the accrued leave

time he expended to get that continued salary.

He also can’t sue for compensatory damages for the

loss of his income or health insurance because, again,

he continued to receive a paycheck throughout the

relevant time period and his health-care coverage ended

only a day before it resumed again. See Carey v. Piphus,

435 U.S. 247, 254 (1978) (“Rights, constitutional and

otherwise, do not exist in a vacuum. Their purpose is

to protect persons from actual injuries to particular

interests....”). If his procedural-due-process claim

against the individual-capacity defendants were not

barred by qualified immunity, he could sue for nominal

damages, see id. at 266-67, or for punitive damages if

he showed that the council members who terminated him had

“evil motive or intent,” or demonstrated “reckless or

callous indifference to the federally protected rights

of others,” Smith v. Wade, 461 U.S. 30, 56 (1983). But

as explained below, qualified immunity does bar this

claim, so he cannot pursue damages on that count.

8

Punitive damages also are not available against the

town itself. See City of Newport v. Fact Concerts, Inc.,

453 U.S. 247, 271 (1981). Ultimately, the court

concludes that equitable remedies--such as injunctive or

declaratory relief--are for the most part all that may

be available to Mitchell on the claims that are the

subject of the present motion to dismiss.

a. ERISA Claim

Mitchell brings suit against Hayneville under the

provisions of ERISA enumerating employees’ rights to

continuing health-care coverage for a period of time

after certain “qualifying event[s],” including

termination.2 29 U.S.C. § 1161. In particular, he

2. Mitchell frames his ERISA claim as a claim under

the Consolidated Omnibus Budget Reconciliation Act

(COBRA), which amended both ERISA and the Public Health

Services Act in similar ways and added the ERISA

provision under which he brings suit. See Brett v.

Jefferson Cty., 123 F.3d 1429, 1434-45 (11th Cir. 1997).

The court refers to this claim as arising under ERISA to

distinguish it from a potential claim under the PHSA.

9

alleges that the town failed to notify him of his right

to continued coverage in violation of 29 U.S.C. § 1166.

As he now acknowledges, this claim cannot proceed under

ERISA. See Response to Motion to Dismiss (doc. no. 28)

at 9. The provisions he alleges were violated do not

apply to “governmental plan[s],” 29 U.S.C. § 1003(b)(1),

which include plans maintained by state subdivisions,

29 U.S.C § 1002(32).

Although his ERISA claim is barred, Mitchell asks

for the opportunity to amend his complaint to state a

clam instead under the the Public Health Services Act

(PHSA), which does apply to government health plans and

which contains substantively identical notice provisions

to ERISA. See 42 U.S.C. § 300bb-6; see also Bigelow v.

United Healthcare of Miss., Inc., 220 F.3d 339, 344-45

(5th Cir. 2000) (noting similarity between ERISA and PHSA

provisions). Other courts in similar circumstances have

simply construed ERISA claims as claims under the PHSA

because of the parallels between the statutes. See

Bigelow, 220 F.3d at 344. But there is an additional

10

problem with Mitchell’s complaint: He purports to seek

only damages and fees on this claim, see Amended

Complaint (doc. no. 8) at 20, but the PHSA authorizes

only equitable relief as a remedy against state actors

who violate its provisions, see 42 U.S.C. § 300bb-7. The

Eleventh Circuit has held that the PHSA does not

authorize even attorneys’ fees incidental to equitable

relief. See Brett v. Jefferson Cty., 123 F.3d 1429, 1435

(11th Cir. 1997).

It is unclear from the facts alleged in the present

complaint what equitable relief Mitchell might seek for

the claimed violation of the PHSA. For this reason, the

court will dismiss Mitchell’s ERISA claim but grant him

leave to amend the complaint, if he so chooses, to state

a claim under the PHSA. This leave to amend comes with

the proviso that whatever relief he may seek under the

PHSA cannot include either damages or fees, the only

relief he currently requests. If he chooses to amend,

he should state clearly what equitable relief he requests

for the PHSA violations he alleges.

11

b. Procedural Due Process

As stated, Mitchell asserts a due-process claim

against Hayneville and the four individual defendants,

suing three in their individual capacities only and one

(McDonald) in both her individual and official

capacities. The four individual defendants argue that

qualified immunity bars Mitchell’s § 1983 claims against

them in their individual capacities for the

procedural-due-process violation he alleges. See Br. in

Supp. Defs.’ Motion to Dismiss (doc. no. 17) at 8-9.

Qualified immunity “protects government officials ‘from

liability for civil damages insofar as their conduct does

not violate clearly established statutory or

constitutional rights of which a reasonable person would

have known.’” Pearson v. Callahan, 555 U.S. 223, 231

(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). Determining whether this immunity applies

involves two distinct inquiries, which the court may

resolve in either order: whether the plaintiff’s

12

allegations “make out a violation of a constitutional

right,” and whether “the right at issue was ‘clearly

established’ at the time of the defendant’s alleged

misconduct.” Id. at 232 (quoting Saucier v. Katz, 533

U.S. 194, 201 (2001)).

“The basic thrust of the qualified-immunity doctrine

is to free officials from the concerns of litigation,

including ‘avoidance of disruptive discovery.’” Iqbal,

556 U.S. at 685 (quoting Siegert v. Gilley, 500 U.S. 226,

236 (1991) (Kennedy, J., concurring)). Consequently, it

is appropriate for the district court to resolve

qualified-immunity issues on the pleadings, before

allowing discovery. See Pearson, 555 U.S. at 231-32.

Qualified immunity protects officials sued for money

damages in their individual capacities; it “does not

shield against equitable claims.” Burrell v. Bd. of

Trustees of Ga. Mil. Coll., 970 F.2d 785, 788 (11th Cir.

1992).

In this case, the court will proceed to determine

whether a constitutional violation occurred before

13

deciding whether the right at issue was clearly

established. There would be no benefit of judicial

economy to postponing the constitutional question because

defendants have also moved to dismiss Mitchell’s

due-process claim against the town, and the town cannot

raise qualified immunity as a defense. Owen v. City of

Independence, 445 U.S. 622, 638 (1980); see also Pearson,

555 U.S. at 236-37 (authorizing courts to decide the

question of a right’s clear establishment first to avoid

“substantial expenditure of scarce judicial resources on

difficult questions that have no effect on the outcome

of the case”).

1. Whether a Violation Occurred

The procedural-due-process question concerns

Mitchell’s removal from his post at the April 2018

council meeting.3 If he was a tenured public employee at

3. Mitchell also claims that he suffered

constitutional injury because of the July meeting at

which he was returned to administrative leave with pay

14

the time of the meeting, the decision of the United States

Supreme Court in Cleveland Board of Education v.

Loudermill, 470 U.S. 532 (1985), has long described the

process due before he could be terminated: “The tenured

public employee is entitled to oral or written notice of

the charges against him, an explanation of the employer’s

evidence, and an opportunity to present his side of the

story.” Id. at 546.

The allegations in Mitchell’s complaint indicate

that he did not receive this process before he was removed

from his job in April 2018. Defendants argue that what

process Mitchell received is irrelevant because he

(1) was an at-will rather than tenured employee by the

time of that meeting and therefore had no property

interest in his continued employment; (2) was not

and the December meeting at which he was returned fully

to his position. The court does not see how it violates

due process to reinstate someone’s employment. As such,

the court will focus on the April 2018 meeting and will

consider the later meetings simply as times when Mitchell

alleges the council failed to redress fully the claimed

violation from the April meeting.

15

deprived of any property interest because he lost only

his accrued paid leave; and (3) cannot sue for a

procedural-due-process violation in any case because an

adequate post-deprivation remedy is available to him

under state law. The court finds each of these arguments

unavailing.

Mitchell remained a tenured public employee when he

was removed from his position in April 2018. As police

chief, he was an appointed official of the town. See

Amended Complaint (doc. no. 8) at ¶¶ 15-16. Town councils

may remove an appointed official only for good cause,

such as “incompetency, malfeasance, misfeasance, or

nonfeasance in office and for conduct detrimental to good

order or discipline.” Ala. Code § 11-43-160(a)(2).

Law-enforcement officers, including police chiefs, are

also specifically entitled to a hearing before being

suspended or terminated. See Ala. Code §§ 11-43-230

to -231.

Prior to the April 2018 meeting, Mitchell had last

been appointed by the council in 2012 to a four-year

16

term, co-extensive with the terms of the councilmembers

and mayor. See Br. in Supp. Motion to Dismiss (doc. no.

17) at 4; see also Ala. Code § 11-43-46 (providing that

the terms of appointed officers may not exceed that of

the mayor). Defendants say that because Mitchell was

appointed to a four-year term, his protected position

expired in 2016, and he therefore no longer held

tenure-protected public employment when the council met

in 2018 to relieve him of his duties. In support, they

cite an opinion of the Office of the Alabama Attorney

General explaining that a police chief’s term of office

“ends generally by operation of general law when a newly

elected council takes office,” which means that “these

persons must be reappointed at the beginning of each

organizational meeting of a new council or as soon as

practicable thereafter.” Municipalities - City

Clerks - City Treasurer, No. 2013-020, Ala. Op. Att’y

Gen., 2013 WL 226995, at *3 (Jan. 9, 2013). As such,

they argue that the council simply decided not to

17

reappoint Mitchell at the April 2018 meeting, a decision

which would implicate no due-process protections.

This argument misses the issue, albeit narrowly. The

opinion cited by defendants addressed the general length

of police chiefs’ terms and whether it is necessary for

them to be reappointed--that is, whether a police chief

can simply be presumed to have obtained another four-year

term if the council does nothing one way or another after

reconvening. See id. at *1 (listing the questions

answered by the opinion). It states that, in order to

obtain an additional four-year term, a police chief or

other town official must be reappointed after the council

reconvenes. See id. at *3.

The issue in this case is different: It is whether

Mitchell continued to have any tenure protections at all

once the new council took office. In other words, the

question here is whether Mitchell’s term was ended

automatically by the reconvening of the council, or

whether something more was necessary to cut off his

tenure protection.

18

The attorney general’s opinion cited by defendants

does not answer that question--it holds that Mitchell was

not automatically entitled to another four-year term, but

it does not address whether he otherwise retained his

employment protections in April 2018. But § 11-43-4 of

the Code of Alabama and opinions interpreting that

provision do address the latter question. Under Alabama

law, for towns and cities with a population of less than

6,000 people,4 “[t]he clerk and such other officers

elected by the council shall serve until their successor

or successors are elected and qualified.” Ala. Code

§ 11-43-4. As the Office of the Attorney General has

explained, under § 11-43-4 a town officer whose term has

elapsed generally becomes a “hold over” official until

his or her successor is appointed. See City of

Foley - Municipalities - Elections, No. 1981-119, Ala.

Op. Att’y Gen., 1990 WL 10711756, at *2 (Sept. 23, 1990).

This position is held as a matter of right; there is

4. The town of Hayneville has a population of

approximately 1,000.

19

presumed to be a “right of the incumbent to hold over,”

which attaches to the officeholder “unless such holding

over be expressly or impliedly prohibited.” Id. Nothing

in the pleadings or defendants’ motion to dismiss

indicates that the ordinances or policies of Hayneville

prohibited town officers from performing as hold-over

officials. For this reason, Mitchell had a right under

state law to retain his position until his successor was

chosen, absent good cause to fire him.

Although there is little case law on point, what

exists supports this reading of the relevant statutes.

This includes Allred v. City of Carbon Hill, No.

6:13-cv-00930-LSC, 2014 WL 5426822 (N.D. Ala. Oct. 24,

2014) (Coogler, J.), the case on which defendants

principally rely. In Allred, the court found that a

police chief’s term in office had ended because his

successor had been appointed. See 2014 WL 5426822, at

*1 (noting that the council had appointed a new police

chief); see also id. at *4 (“[T]he council’s election of

a new police chief effectively ended the term of the

20

plaintiff’s service as police chief.” (quoting In re

Potter, 354 B.R. 301, 307 (Bankr. N.D. Ala. 2006))). The

complaint does not state that the council chose

Mitchell’s successor when it voted to relieve him of his

office. As such, based on the facts pleaded in the

complaint, he was still a tenured public employee when

the council terminated him in April 2018.

To seek relief for a due-process violation, Mitchell

also must plausibly allege that he was deprived of a

property interest. See Loudermill, 470 U.S. at 538. If

he were suing for the loss of his job, this would be

straightforward: Under Alabama law, as discussed above,

Mitchell plainly had a property interest in his

employment for the duration of his legally protected

tenure in the position. But defendants argue that,

because Mitchell already has his job back and is suing

instead for the return of his paid leave benefits, there

is no property deprivation here for which he can seek

relief.

21

In support, defendants cite the opinion of another

judge of this court in Ingalls v. U.S. Space and Rocket

Center, No. 2:14-cv-699-WKW, 2015 WL 4528687 (M.D. Ala.

July 27, 2015) (Watkins, C.J.). The Ingalls court noted

that a number of the federal courts of appeals “have

excluded from the Due Process Clause’s reach a public

employer’s denials of accrued sick leave, pension

benefits, accrued time off, and promotion rights.” Id.

at *13 (citing Ramsey v. Bd. of Educ., 844 F.2d 1268,

1273 (6th Cir. 1988)). Because of this, defendants say

that Mitchell’s suit to recover his lost leave time

cannot be founded on the Due Process Clause. See Br. in

Supp. Motion to Dismiss (doc. no. 17) at 5.

Ingalls is off-point. The town council of Hayneville

did not deny Mitchell his accrued time off at the April

2018 meeting; it fired him. Defendants confuse the scope

of Mitchell’s potential relief for the scope of the

property interest at issue. While Mitchell does not have

a claim for compensatory damages because his income never

ceased, he still had a property interest in remaining in

22

his position through the end of his tenure absent a

finding of good cause for termination preceded by due

process of law.

If the need for compensation defined the limits of

actionable procedural-due-process rights, nominal

damages would never be an appropriate remedy in such

cases. The Supreme Court has expressly rejected that

position. See Carey, 435 U.S. at 266 (“[D]enial of

procedural due process should be actionable for nominal

damages without proof of actual injury.”). Relieving

Mitchell of his tenured job without process may have

deprived him of only a nominal property interest, but it

was a property interest nonetheless.

Finally, defendants argue that Mitchell’s suit is

barred by Parratt v. Taylor, 451 U.S. 527 (1981), and its

progeny. The United States Supreme Court held in Parratt

that where there is “either the necessity of quick action

by the State or the impracticality of providing any

meaningful predeprivation process,” due process is

satisfied if the state provides an adequate opportunity

23

to remedy the harm after the deprivation occurs.

Parratt, 451 U.S. at 539; accord McKinney v. Pate, 20

F.3d 1550, 1562-63 (11th Cir. 1994).

Based on the allegations of the complaint, Parratt

and McKinney do not apply to Mitchell’s claim. A

prerequisite to their application is that a

pre-deprivation hearing was “impracticable.” McKinney,

20 F.3d at 1562. This may be true when the deprivation

is caused by the “random and unauthorized act” of a state

official, as in Parratt. 451 U.S. at 541. Or it may be

true when the plaintiff notionally received a

pre-deprivation hearing, but the hearing took place

before such a biased decisionmaker that the plaintiff

cannot be said to have had the possibility of genuine due

process, as in McKinney. See 20 F.3d at 1562-63.

By contrast, Mitchell claims that he received no

pre-deprivation process at all under circumstances in

which such process was feasible. The facts alleged here

do not show any reason to think it would have been

impossible for the council to provide him a hearing

24

before voting to terminate him in April 2018. Nor do

Mitchell’s allegations of bias suggest that a

pre-deprivation hearing would have been “impracticable”;

when the ostensibly biased council finally held a hearing

on his employment in December 2018, it voted not to

terminate him. In the absence of any showing that the

council could not have provided Mitchell pre-deprivation

process, his claim comes under the general rule that

there is no requirement for a litigant to pursue

state-law remedies before bringing suit under § 1983.

See Monroe v. Pape, 365 U.S. 167, 183 (1961).

2. The Individual Defendants

The four individual defendants assert that qualified

immunity bars Mitchell’s due-process claim against them

in their individual capacities. As discussed above, the

qualified immunity inquiry involves two separate

questions: whether the allegations “make out a violation

of a constitutional right,” and whether “the right at

issue was ‘clearly established’ at the time of the

25

defendant’s alleged misconduct.” Pearson, 555 U.S. at

232 (quoting Saucier, 533 U.S. at 201). The former

question was difficult; the latter is concomitantly not.

Whether Mitchell’s due-process rights in this case

were clearly established at the time of his April 2018

termination can be resolved simply on the issue of his

status as a “hold over” official. Determining that he

was holding over in his job and that he therefore had a

right to remain in the position until his successor was

chosen required the resolution of an arguable question

of state law for which the best authorities were opinions

of the Office of the Alabama Attorney General, none of

which squarely controlled this case. It was not

unreasonable for the councilmembers to believe in April

2018 that Mitchell’s term in office had ended and that

he therefore had no procedural-due-process right to a

hearing before they terminated him.

As such, Mitchell’s claims against the

councilmembers for damages for violating his

26

procedural-due-process rights are barred by qualified

immunity and must be dismissed.

3. Hayneville

As stated, Hayneville cannot assert qualified

immunity from Mitchell’s due-process claim. And, as

explained above, Mitchell has asserted a viable claim,

and thus this claim will proceed against the town.

c. State Law Claims

Finally, Hayneville, which is the only defendant sued

on the state-law claims, moves to dismiss claims for

breach of contract and wrongful termination. The town

argues that Mitchell’s claims are barred because (1) he

did not file a notice of claim prior to bringing suit;

(2) he does not allege facts sufficient to state a

breach-of-contract claim; (3) there exists no tort of

wrongful termination under Alabama law, or, if such a

tort does exist, the town is immune; and (4) the statute

setting forth the requirements for a pre-disciplinary

27

hearing for law-enforcement officers does not create a

private right of action for damages. None of these

arguments provide a reason to dismiss either of his

state-law claims.

1. Notice of Claim

Hayneville offers two Alabama statutes that might

bar Mitchell’s suit for failure to file a notice of claim.

The first of these, Alabama Code § 11-47-192, by its

terms applies only to claims for personal injury. See

Ala. Code § 11-47-192 (“No recovery shall be had against

any city or town on a claim for personal injury received”

absent prior filing of a statement with the town clerk).

Mitchell brings no such claim here.

The second, Alabama Code § 11-47-23, presents a

closer call. Part of the statute declares that claims

for damages “growing out of torts shall be presented

within six months from the accrual thereof or shall be

barred.” Ala. Code § 11-47-23. As a preliminary matter,

this six-month provision--though it is the focus of the

28

town’s briefing on this issue--does not apply to

Mitchell’s claim for breach of contract. It is also

largely inapposite to his wrongful-termination claim. As

discussed previously, the gravamen of Mitchell’s

complaint is for equitable relief. Compensatory damages

will not be available, and he does not seek punitive

damages on this claim. To the extent that he may seek

nominal damages from the town for his

wrongful-termination claim, the six-month provision of

Alabama Code § 11-47-23 could bar that relief.

Otherwise, it has no bearing here.

Alabama Code § 11-47-23 also indicates that all

claims against municipalities other than claims for

damages “shall be presented to the clerk for payment

within two years from the accrual of said claim or shall

be barred.” Id. This provision applies to both of his

state-law claims, so while Mitchell filed his complaint

within two years of their accrual, they may be barred if

he was required to present them to the clerk prior to

filing suit and failed to do so.

29

He was not so required. The Supreme Court of Alabama

has held and reiterated that “[f]iling a lawsuit operates

as a notice of claim” satisfying the requirements of

§ 11-47-23. Lee v. Houser, 148 So. 3d 406, 420 (Ala.

2013); see also Marvin W. Sumlin Constr. Co. v. City of

Prichard, 465 So. 2d 371, 373 (Ala. 1985) (“The filing

of a complaint has long been held sufficient claim for

payment to satisfy the nonclaim provisions of

§ 11-47-23.”). None of the cases the town cites

contradict this longstanding rule; indeed, some of them

affirm it. See, e.g., Frazier v. City of Mobile, 577 So.

2d 439, 440 (Ala. 1991) (noting that filing an action

within the time limits established by § 11-47-23 is

“sufficient presentment of the claim to comply with that

provision”). Although this rule emerges from cases

applying the six-month limit on claims for damages under

§ 11-47-23, the statute does not distinguish the

presentment required in such cases from that required for

non-damages claims, other than its allowance of six

months for one and two years for the other. Mitchell’s

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state-law claims are not barred for failure to present

notice prior to filing suit because under Alabama law,

his suit operated as notice.

2. Breach of Contract

Mitchell claims that the town breached his employment

contract by failing to follow “policies and procedures

for progressive discipline and termination of employees”

set forth in his employee handbook. Amended Complaint

(doc. no. 8) at ¶¶ 139, 141. Under Alabama law, a

breach-of-contract claim requires the plaintiff to show

“(1) the existence of a valid contract binding the

parties in the action, (2) [the plaintiff’s] own

performance under the contract, (3) the defendant’s

nonperformance, and (4) damages.” Congress Life Ins. Co.

v. Barstow, 799 So. 2d 931, 937 (Ala. 2001).

Notwithstanding the requirement to show damages, the

Alabama Supreme Court has held that “an action based on

a breach of contract will lie even where the plaintiff

has suffered no actual damage,” in which instance the

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plaintiff “is entitled to at least nominal damages.” RLI

Ins. Co. v. MLK Ave. Redevelopment Corp., 925 So. 2d 914,

918 (Ala. 2005) (quoting Avis Rent A Car Sys., Inc. v.

Heilman, 876 So. 2d 1111, 1120 (Ala. 2003)).

Alabama courts have recognized that the terms of an

employee handbook can create a binding employment

contract under certain circumstances: when the language

of the handbook is “specific enough to constitute an

offer,” the offer has been “communicated to the employee

by issuance of the handbook, or otherwise,” and the

employee has “accepted the offer by retaining employment

after he has become generally aware of the offer.”

Hoffman-La Roche, Inc. v. Campbell, 512 So. 2d 725, 735

(Ala. 1987). The town argues that Mitchell’s

breach-of-contract claim cannot proceed because he

provides insufficient details of the employee handbook

and the town’s policies governing discipline and

discharge to allege that his contract was binding.

The dispute over the employee handbook is misplaced.

The cases cited by the parties rest on the default

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presumption that employment relationships in Alabama are

at-will; these cases explain how the terms of an employee

handbook can rebut that presumption, making a contract

of employment binding on the parties in spite of the

general rule that “an employee contract at will may be

terminated by either party with or without cause or

justification.” Id. at 728. But the relationship here

was not one of at-will employment; Mitchell was a

tenure-protected public employee when he was fired. As

a result, these cases are inapposite, and Mitchell has

plausibly pleaded that a binding contract existed

here--indeed, state law ensures that whatever employment

agreement existed between the parties bound the town to

retain Mitchell absent certain pre-termination process.

See Ala. Code § 11-43-230. The complaint also states

that he performed his duties as police chief and that the

town, by firing him without process, failed to perform

its side of the bargain. See Amended Complaint (doc. no.

8) at ¶¶ 139, 141 (stating that the handbook “set[] forth

policies and procedures for progressive discipline and

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termination of employees” and that the town “did not

follow” these procedures). Moreover, as explained

earlier, the fact that Mitchell is ineligible for

compensatory damages does not defeat his claim. See RLI

Ins. Co., 925 So. 2d at 918. Accordingly, his

breach-of-contract claim may proceed.

3. Wrongful Termination

Hayneville argues that the wrongful-termination

claim must be dismissed because no tort of wrongful

termination exists under state law. But Alabama courts

do allow suits for wrongful termination by public

employees fired from tenure-protected positions. See Ex

parte Hugine, 256 So. 3d 30, 56 (Ala. 2017) (“[O]ur courts

have stated that ‘[t]he dismissal of a public employee

who is entitled to a pretermination hearing, without such

a hearing, is a wrongful act constituting a tort under

Alabama law.’” (quoting Hardric v. City of Stevenson, 843

So. 2d 206, 210 (Ala. Civ. App. 2002))); see also

Galbreath v. Hale Cty., 754 F. App’x 820, 828-29 (11th

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Cir. 2018) (acknowledging that a tort of wrongful

termination exists in Alabama for public employees). The

town’s argument on this point supplies no reason to

dismiss Mitchell’s claim for wrongful termination.

Hayneville further argues that the town is immune

from suit for wrongful termination because of Alabama

Code § 11-47-190, which protects municipalities from

liability for damages except those caused by “the

neglect, carelessness, or unskillfulness” of a town

employee. In general, this means that “a city is liable

for negligent acts of its employees within the scope of

their employment, but not intentional torts.” Brown v.

City of Huntsville, 608 F.3d 724, 743 (11th Cir. 2010).

The Supreme Court of Alabama has held, however, that when

a nominally intentional tort is based on “a factual

pattern that demonstrates ‘neglect, carelessness, or

unskillfulness,’” § 11-47-190 does not immunize a

municipality from suit. Borders v. City of Huntsville,

875 So. 2d 1168, 1183 (Ala. 2003) (quoting Franklin v.

City of Huntsville, 670 So. 2d 848, 852 (Ala. 1995)); see

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also Brown, 608 F.3d at 743 (recognizing this exception

to § 11-47-190).

It is not wholly clear from Mitchell’s complaint

whether the facts he alleges show deliberate wrongful

termination or carelessness by the councilmembers as to

whether Mitchell remained entitled to the tenure

protections afforded by state law. Ultimately, the court

need not resolve the matter. As discussed previously,

compensatory damages are not available in this case.

Mitchell does not seek punitive damages against the town

on his wrongful-termination claim. See Amended Complaint

(doc. no. 8) at 22. And to the extent that he seeks

equitable remedies, § 11-47-190 presents no obstacle.

See Ala. Code § 11-47-190 (precluding certain kinds of

vicarious municipal liability “for damages”).

4. Private Right of Action

The town finally argues that Alabama Code

§ 11-43-230, which describes the pre-disciplinary

process afforded to municipal law-enforcement officers,

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does not create a private right of action for damages.

It is unclear from the town’s briefing whether it means

this argument to undercut Mitchell’s due-process claim

or his wrongful-termination claim. Compare Br. in Supp.

Motion to Dismiss (doc. no. 17) at 15 (referring to count

II of the complaint, the procedural-due-process claim),

with id. (“Accordingly, the Plaintiffs’ [sic] ‘wrongful

termination’ state law claim is due to be dismissed.”).

This confusion points to a basic problem with the town’s

argument: Mitchell does not bring a claim under Alabama

Code § 11-43-230.

To be sure, that statute is relevant to determining

whether Mitchell was wrongfully terminated under Alabama

tort law and whether his federal due-process rights were

violated. But no count of his complaint is brought

directly under § 11-43-230 for a statutory violation by

the town or its officials. Because Mitchell does not sue

under § 11-43-230, resolving the existence or scope of

any private right of action that statute may create would

be an academic exercise here. Article III does not

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empower this court to engage in such. See Chafin v.

Chafin, 568 U.S. 165, 172 (2013).

d. Claims Against Cynthia McDonald

Mitchell brings his procedural-due-process and First

Amendment claims against McDonald, a former member of the

town council, in her official and individual capacities.

Official-capacity claims are used to seek equitable

relief against current government officials. This

typically takes the form of a court order compelling the

official to do something or refrain from doing something

in their capacity as a government actor. Although

Mitchell sues McDonald in her official capacity “as a

member of the town council,” he concedes that she is no

longer a member of the council. See Response to Motion

to Dismiss (doc. no. 28) at 22. Thus, these claims must

be dismissed because of the unavailability of any

possible remedy. The court cannot enjoin McDonald to do

anything or refrain from doing anything in her official

capacity as a member of the town council because she is

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not a member of the town council. Moreover, Mitchell’s

official capacity claims against her are redundant with

his claims against the town.

The court believes that Mitchell may be confusing

official-capacity suits for equitable relief with

individual-capacity suits for damages, in light of the

statement in his response brief that McDonald “is no

longer a member of the Hayneville Town Council, so the

only way to hold her responsible for actions that she

took as a member of the Hayneville Town Council is to sue

her in her official capacity.” Id. Regardless, under

the circumstances of this case, there is no reason to

grant Mitchell leave to substitute one of the current

councilmembers as an official-capacity defendant to

replace McDonald. Mitchell names the town as a defendant

on both of his constitutional claims; bringing those same

counts against an official-capacity defendant would be

redundant with his claims against the town and could

provide him no additional relief.

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For the reasons discussed above, Mitchell’s

due-process claim against McDonald in her individual

capacity also is barred by qualified immunity. However,

his First Amendment claim against McDonald in her

individual capacity is not contested by the present

motion and may proceed.

IV. CONCLUSION

For the reasons set forth in this opinion, the court

will grant in part and deny in part defendants’ motion

to dismiss. Mitchell’s ERISA claim is barred, but he may

amend his complaint to state instead a claim under the

PHSA if he believes that any equitable relief would be

appropriate for the alleged violation of that statute.

Qualified immunity bars his § 1983 suits for damages

against the four individual councilmembers for violating

his procedural-due-process rights. He cannot bring his

due-process and First Amendment claims against McDonald

in her official capacity as she is no longer a

councilmember. His complaint proceeds now on his First

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Amendment claim against the town and all individual

defendants in their individual capacities only, and on

his FLSA, due-process, breach-of-contract, and

wrongful-termination claims against the town.

* * *

Accordingly, it is ORDERED that:

(1) Defendants’ motion for partial dismissal (doc.

no. 16) is granted in part and denied in part.

(2) Plaintiff Kelvin Mitchell’s due-process claim

(Count II) against defendants Lula Tyson-Bailey, Justin

Pouncey, and Sharon Reeves in their individual capacities

is dismissed with prejudice.

(3) Plaintiff Mitchell’s due-process and First

Amendment retaliation claims (Counts II & III) against

defendant Cynthia McDonald in her official capacity, as

well as his due-process claim against defendant McDonald

in her individual capacity, are dismissed with prejudice.

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(4) Plaintiff Mitchell’s claim against defendant

Town of Hayneville for violation of the COBRA provisions

of ERISA (Count IV) is dismissed. Plaintiff Mitchell may

amend his complaint to restate this claim under the PHSA

if he so chooses, bearing in mind that the PHSA does not

authorize relief in the form of damages or fees.

(5) The deadline for plaintiff Mitchell to file an

amended complaint is 5:00 p.m. on January 8, 2021.

Plaintiff Mitchell may amend his complaint by that date

as described above.

(6) Plaintiff Mitchell’s suit now proceeds on Count

I (FLSA) against defendant Town of Hayneville; Count II

(due-process) against defendant Town of Hayneville; Count

III (First Amendment) against defendant Town of

Hayneville and all four of the individual defendants

(Tyson-Bailey, Pouncey, Reeves, and McDonald) in their

individual capacities; and Counts V and VI (state-law

claims) against defendant Town of Hayneville.

DONE, this the 18th day of December, 2020.

/s/ Myron H. Thompson

UNITED STATES DISTRICT JUDGE

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