Kirk v. City of Valley, Alabama (MAG2)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

CHRIS KIRK, )

)

Plaintiff, )

)

v. ) CASE NO. 3:17-CV-800-WKW

) [ W O]

CITY OF VALLEY, ALABAMA, )

et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

In March 2019, the Magistrate Judge filed a Recommendation (Doc. # 29) that

the pending motions to dismiss (Docs. # 19, 24) be granted and that Plaintiff Chris

Kirk’s claims against Defendants, the City of Valley and Mayor Leonard Riley be

dismissed with prejudice. Plaintiff filed timely objections (Doc. # 30) and

Defendants filed a response to the objections (Doc. # 31). The court has conducted

an independent and de novo review of those portions of the Recommendation to

which objection is made. See 28 U.S.C. § 636. After careful review of the law,

allegations, and arguments, the court finds that the objections are due to be overruled

and the motions to dismiss granted.

I. JURISDICTION AND VENUE

Because Plaintiff’s claims arise under a federal statute, 42 U.S.C. § 1983, the

court has federal-question subject-matter jurisdiction. 28 U.S.C. § 1331. The parties

do not contest personal jurisdiction or venue.

II. STANDARD OF REVIEW

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure tests the sufficiency of the complaint. Rule 8 provides that the complaint

must include “a short and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2). When evaluating a motion to dismiss

under Rule 12(b)(6), the court must take the facts alleged in the complaint as true

and construe them in the light most favorable to the plaintiff. Resnick v. AvMed,

Inc., 693 F.3d 1317, 1321–22 (11th Cir. 2012). However, the court need not accept

mere legal conclusions as true. Id. at 1325.

To survive a 12(b)(6) motion, the 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)). “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. Dismissal under Rule 12(b)(6)

is also permitted “when on the basis of a dispositive issue of law, no construction of

the factual allegations will support the cause of action.” Marshall Cty. Bd. of Educ.

v. Marshall Cty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993); see also Neitzke

v. Williams, 490 U.S. 319, 326–27 (1989) (explaining that the rule allows a court “to

dismiss a claim on the basis of a dispositive issue of law”).

III. BACKGROUND

Plaintiff makes no objection to the following facts, which are set out in Part

III of the Recommendation. Plaintiff was employed by the City of Valley, Alabama,

as a “Human Resources/Accounting Technician” from December 2012, until

September 2016. (Doc. # 18, at 2.) Plaintiff’s amended complaint does not include

a job description. But it can be reasonably inferred from the allegations that Plaintiff

dealt with personnel issues involving city employees. (See Doc. # 29, at 3-4.) That

inference is based not only on what was included in Plaintiff’s job title (“Human

Resources”), but also on Plaintiff’s August 2016 meeting with Police Chief Weldon

and Captain Cox about Cox’s upcoming retirement.1

At that meeting, Cox informed Plaintiff that after Cox’s retirement, Mayor

Riley was going to hire Cox as a part-time employee and that he was going to allow

Cox “to keep part of his sick leave.” (Doc. # 18, at 2.) Plaintiff told Cox that he

could not work for thirty days following his retirement and that “part-time

employees do not receive sick leave.” (Doc. # 18, at 3.)

When Weldon insisted that Mayor Riley was going to allow Cox to keep some

1 The amended complaint does not give the first names of Weldon or Cox. Nor does it give

Cox’s full title.

of his sick-leave time, Plaintiff said she would talk to Mayor Riley about it. (Doc. #

18, at 3.) Before meeting with Mayor Riley, Plaintiff met with Kathy Snowden, the

“City Clerk/Treasurer,” who confirmed that part-time employees do not receive sick

leave. (Doc. # 18, at 3.)

Plaintiff then met with Mayor Riley to tell him that part-time employees do

not receive sick leave and that “it may be a violation of ERISA rules if the city gave

Cox sick leave but did not give sick leave to other part-time employees.” (Doc. #

18, at 3.) Mayor Riley told Plaintiff that “she was wrong” and that he “had the

discretion to make this change.” (Doc. # 18, at 3.)

On September 12, 2016, Plaintiff attended the city council meeting “where

the resolution was introduced.”2 Because Plaintiff believed Mayor Riley’s proposal

“was a matter of public concern and potentially illegal, she expressed her concerns

as a citizen of Valley, Alabama, to City Council Member Jim Jones before the

meeting began.” (Doc. # 18, at 3.) Going to a city council meeting and talking to

city council members about ordinances or other city business “was not in [Plaintiff’s]

regular duties as a city employee.” (Doc. # 18, at 4.)

Plaintiff’s lobbying Council Member Jones was apparently successful. Jones

was alone in voicing opposition to and voting against the resolution. (Doc. # 18, at

2 The amended complaint does not explain what the resolution was, but it can be reasonably

inferred that the resolution dealt with Cox’s sick leave.

4.) But the resolution still passed.

Three days after the city council meeting, Mayor Riley met with Plaintiff and

told her that speaking with Council Member Jones before the city council meeting

amounted to insubordination and asked Plaintiff to resign. (Doc. # 18, at 4.) He

further stated that employees could not speak to council members about city

business. (Doc. # 18, at 4.) After Plaintiff refused to resign, Mayor Riley fired her,

citing “insubordination, conduct unbecoming an employee, abusive conduct,

inefficiency, and neglect of duty.” (Doc. # 18, at 4.)

Plaintiff then filed this lawsuit, alleging that the City of Valley (Count One)

and Mayor Riley (Count Two) fired her in retaliation for exercising her First

Amendment rights. (Doc. # 18.)

IV. DISCUSSION

The crux of Plaintiff’s First Amendment claim is that “the reasons given by

Mayor Riley and the City of Valley for her termination are pretextual, and instead

. . . she was terminated in retaliation for engaging in protected speech.” (Doc. # 18,

at 4.)

A government employee may not be terminated in retaliation for speech

protected under the First Amendment. See Garcetti v. Ceballos, 547 U.S. 410, 417

(2006) (“The Court has made clear that public employees do not surrender all their

First Amendment rights by reason of their employment.”); see also Rankin v.

McPherson, 483 U.S. 378, 383 (1987) (“It is clearly established that a State may not

discharge an employee on a basis that infringes that employee’s constitutionally

protected interest in freedom of speech.”). But public employees do not enjoy an

absolute right to freedom of speech. Maggio v. Sipple, 211 F.3d 1346, 1351 (11th

Cir. 2000). Given the nature of public service, a government employee “must accept

certain limitations on [her] freedom.” Garcetti, 547 U.S. at 418. The Supreme

Court in Garcetti set out what is required for a public employee’s speech to be

entitled to protection. The first inquiry, the only inquiry at issue,

requires determining whether the employee spoke as a citizen on a

matter of public concern. If the answer is no, the employee has no First

Amendment cause of action based on his or her employer’s reaction to

the speech. If the answer is yes, then the possibility of a First

Amendment claim arises.

Id. (cleaned up). Therefore, the First Amendment only protects Plaintiff’s speech if

it was made “(1) as a citizen and (2) on a matter of public concern.” Alves v. Bd. of

Regents of the Univ. Sys. of Ga., 804 F.3d 1149, 1160 (11th Cir. 2015). Both “are

questions of law for the court to resolve.” Id. at 1159.

In her Recommendation (Doc. # 29), the Magistrate Judge found that

Plaintiff’s speech was made neither as a citizen nor on a matter of public

concern. The court agrees with the thorough Recommendation and will not repeat

all of its analyses here.

The thrust of Plaintiff’s objection (Doc. # 30) relates to the public concern

element. Plaintiff wants her speech to Councilman Jones to be interpreted as a

matter of public concern because “the City’s potential violation of ERISA” and “an

evaluation of Mayor Riley’s performance in his public service” are matters of public

concern. (Doc. # 30, at 4, 7.) Not so. “To presume that all matters which transpire

within a government office are of public concern would mean that virtually every

remark — and certainly every criticism directed at a public official — would plant

the seed of a constitutional case. . . . [T]he First Amendment does not require a public

office to be run as a roundtable for employee complaints over internal office affairs.”

Connick v. Myers, 461 U.S. 138, 149 (1983). For First Amendment purposes, an

“employee’s speech will rarely be entirely private or entirely public. Rather than

categorize each phrase the employee uttered, we consider whether the speech at issue

was made primarily in the employee’s role as citizen, or primarily in the role of

employee.” Morgan v. Ford, 6 F.3d 750, 755 (11th Cir. 1993) (citations

omitted). “Whether an employee’s speech addresses a matter of public concern

must be determined by the content, form, and context of a given statement, as

revealed by the whole record.” Connick, 461 U.S. at 147-48.

Here, the content, form, and context of Plaintiff’s speech indicate that she

spoke privately in her role as a human resources specialist. The content of Plaintiff’s

speech focused on the legality of Captain Cox’s receiving sick leave as a part-time

employee. This is analogous to “vacation policies, promotion guidelines and

pension benefits,” which the Eleventh Circuit has long excluded from the public

concern category.3 Anderson v. Burke Co., 239 F. 3d 1216, 1220 (11th Cir. 2001).

The form of Plaintiff’s speech was a private oral communication with a single city

council member regarding the mayor’s part-time employee sick leave policy. See

Alves, 804 F.3d at 1162 (although not dispositive, “whether the speech was

communicated to the public or privately to an individual is relevant”). And the

context is evident from Plaintiff’s desire to “discuss the issue . . . in her capacity as

Accounting Technician.” (Doc. # 18, at 3.)

Plaintiff argues that her speech was a matter of public concern “[b]ecause

potential wrongdoing by city officials is a subject of general interest and of value

and concern to the public.” (Doc. # 30, at 8.) But the Eleventh Circuit “emphasized

that the relevant inquiry is not whether the public would be interested in the topic of

the speech at issue but rather . . . whether the purpose of the plaintiff’s speech was

to raise issues of public concern.” Maggio, 211 F.3d at 1353 (cleaned up). The

Magistrate Judge correctly addressed this issue:

As to Plaintiff’s motivation for the speech, the court recognizes that

Plaintiff alleges she “believed” the Mayor’s sick leave policies were a

“violation of ERISA” (Doc. 18 at ¶¶ 10, 12) and, as such, “a matter of

public concern and potentially illegal.” (Doc. 18 at ¶ 12). However,

“[m]entioning ‘possible’ liability for perceived wrongdoing in the

future does not transform [Plaintiff’s] speech into that of a citizen

protesting on behalf of the public.” King v. Board of County

3 The Supreme Court recognized the difficulty of finding exact factual precedent on these

issues because of “the enormous variety of fact situations.” Garcetti, 547 U.S. at 418.

Commissioners, 2019 WL 988467, at *6 (11th Cir. 2019). In addition,

it is clear that Plaintiff’s concern about a possible ERISA violation

arose out of her duties as a Human Resources/Accounting Technician

who dealt with sick leave policies. “She was not a concerned citizen

who happened to become aware of [the sick leave eligibility question]

and decided to do something about it.” See id., 2019 WL 988467, at *5

(11th Cir. 2019); see also id. (“[T]he starting point of [Plaintiff’s]

speech was her official duties, which suggests she was not speaking as

a private citizen.”); id. at 7 (“At bottom, the impetus for her speech was

frustration at work, not fear for public safety or the public purse.”).

(Doc. # 29, at 10.) Additionally, Councilman Jones was at least the fifth person to

hear Plaintiff’s concerns about whether or not Captain Cox would receive sick leave

as a part-time employee. The motivation behind Plaintiff’s speech can be derived

from her four previous conversations with Captain Cox, Chief Weldon, Ms.

Snowden, and Mayor Riley and her desire to “discuss the issue in a committee

meeting with the City Council in her capacity as Accounting Technician.” (Doc. #

18, at 3.)

Overall, after careful consideration, the court finds that the cases Plaintiff cites

are distinguishable, that the Recommendation is correct, and that Plaintiff’s

objections lack merit.

V. CONCLUSION

Having examined the allegations pertaining to the content, form, and context

of Plaintiff’s speech, the court concludes as a matter of law that Plaintiff’s speech

— a mistaken belief about the legality of whether Captain Cox could receive sick

leave as a part-time employee — is not a matter of public concern.

Accordingly, it is ORDERED as follows:

(1) Plaintiff’s objections (Doc. # 30) are OVERRULED.

(2) The Recommendation (Doc. # 29) is ADOPTED.

(3) Defendants the City of Valley’s and Mayor Leonard Riley’s motions to

dismiss (Docs. # 19, 24) are GRANTED.

(4) All claims against the City of Valley and Mayor Leonard Riley are

DISMISSED with prejudice.

A separate final judgment will be entered.

DONE this 4th day of September, 2019.

/s/ W. Keith Watkins

UNITED STATES DISTRICT JUDGE