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

Plaintiff Kelvin Mitchell is the current chief of

police for the Town of Hayneville, Alabama. He names as

defendants the town and the following four councilmembers

in their individual capacities: Justin Pouncey, Lula

Tyson-Bailey, Sharon Reeves, and Cynthia McDonald. He

asserts the following federal claims against the town:

that it (1) denied him overtime in violation of the Fair

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

him ‘procedural’ due process in violation of the

Fourteenth Amendment, as enforced through 42 U.S.C.

§ 1983; (3) and retaliated against him, in violation of

the First Amendment, as enforced through § 1983. He also

asserts two state claims (4 and 5) that the town removed

him from office in violation of Alabama’s laws

guaranteeing his right to contract and protection from

wrongful termination. He asserts his First Amendment

retaliation claim against the four councilmembers as

well.

The court has jurisdiction over Chief Mitchell’s

three federal claims under 28 U.S.C. § 1331 (federal

question), 29 U.S.C § 216(b) (FLSA), and 28 U.S.C. § 1343

(civil rights), and his two state claims under 28 U.S.C.

§ 1367 (supplemental jurisdiction).

This case is now before the court on the defendants’

motion for summary judgment. For the reasons explained

below, the motion will be granted in part and denied in

part.

I. Summary-Judgment Standard

Summary judgment is proper where “there is no genuine

dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Where, as here, the non-moving party bears the burden of

proof at trial, “the moving party, in order to prevail,

must do one of two things: show that the non-moving party

has no evidence to support ... its case, or present

‘affirmative evidence demonstrating that the non-moving

party will be unable to prove ... its case at trial.’”

Hammer v. Slater, 20 F.3d 1137, 1141 (11th Cir. 1994)

(quoting U.S. v. Four Parcels of Real Property, 941 F.2d

1428, 1437–38 (11th Cir. 1991) (en banc)). In making its

determination as to whether summary judgment is

appropriate, the court must view all evidence and any

reasonable factual inferences in the light most favorable

to the non-moving party. See Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

II. Factual Background

Hayneville is a small town, having a population of

approximately 1,000. Four of its residents serve as law

enforcement officers for its police department. One of

those officers is Mitchell, who currently serves, and has

served for nearly 18 years, as the town’s chief of police.

But those 18 years of service have not gone

uninterrupted. In 2018, Mitchell was fired from his

post. He was then re-hired and put on administrative

leave before ultimately being reinstated as chief eight

months later. This case concerns that interruption in

his tenure.

Mitchell alleges he was terminated in 2018 because

he supported the wrong, that is, losing, candidate during

Hayneville’s heavily contested 2016 municipal election.

The 2016 election was so heavily contested, in fact, that

suits were filed, and a clear victor did not emerge until

the spring of 2018. On April 18, 2018, shortly after the

dust from the election had settled, the new council

unanimously voted to remove Mitchell from his once and

future position as chief of police. The four

councilmembers who voted for Mitchell’s

termination--defendants Justin Pouncey, Lula

Tyson-Bailey, Sharon Reeves, and Cynthia McDonald--were

candidates whom Mitchell opposed in the election.

These four defendants testified that they voted to

remove Mitchell as chief either because they were

receiving verbal complaints about him from the community

or because they personally believed he was performing

poorly. The councilmembers also testified that they were

not aware of whom Mitchell politically supported during

the 2016 election and that political affiliation was not

a relevant consideration for chief of police.

Nonetheless, Mitchell asserts that the

councilmembers were aware of his political affiliation,

and fired him because of that affiliation, for four

reasons. First, Hayneville is a small town where

everybody knows everything about everybody. Second,

Mitchell was open about whom he supported (for example,

he door-knocked for his preferred candidate). Third, he

had a conversation with defendant Reeves’s husband, in

the presence of Reeves. During that conversation,

Reeves’s husband told Mitchell that Reeves, Tyson-Bailey,

and McDonald had a plan to get rid of town officials,

including Mitchell, if they were not on the right

political side. During that conversation, Reeves agreed

that she and the others had such a plan and said, “Yeah.

[That] is what we’re going to do.” Deposition of Kelvin

Mitchell (Doc. 52-2) at 52. And, fourth, Mitchell

directly told Tyson-Bailey whom he politically supported

in the election.

The council voted to remove Mitchell as chief on

April 18, 2018. It is undisputed that, prior to this

vote, he was not given a pre-disciplinary hearing; nor

had he been provided any notice of the grounds for his

termination. Mitchell, who was present at the vote,

asked the councilmembers to explain why he was being

terminated. But the councilmembers declined to answer,

opting instead to tell him that they would provide him

with the grounds for his termination during the next

council meeting.

The next council meeting came, and Mitchell was faced

with the same situation: The council refused to give him

a reason for his termination. At the meeting, the mayor

stated that he was opposed to Mitchell’s termination and

that he believed the council terminated Mitchell without

due process. Mitchell himself said the same and that he

intended to file a federal lawsuit. Several citizens

spoke on Mitchell’s behalf. Eventually there was an

uproar, and three of the defendant councilmembers walked

out of the meeting. One of those walkouts, Reeves, then

gave an interview with a local news channel and explained

that Mitchell had been terminated because he had a

history of failing to respond to 911 calls.

Fast-forward a month, and the council held another

meeting. At that meeting, the council appointed an

acting chief of police. But, two weeks later, on July

2, 2018, the council reconvened and voted to reinstate

Mitchell as chief and place him on administrative leave

with pay until further notice.

Mitchell stayed on administrative leave through the

fall. Then, in November, the town sent Mitchell a notice

that he was being considered for termination and had 10

days to request a hearing. Mitchell made such a request,

and a hearing was held on December 3, 2018. At the

hearing, the council presented written complaints about

Mitchell’s performance as chief. These written

complaints were all submitted to the council after

Mitchell’s original termination.

A week after the hearing, the council voted on

whether to remove Mitchell as chief of police. The vote

split two to two, with the result that Mitchell would not

be terminated. On December 17, 2018, Mitchell resumed

active work as chief, a position he holds to this day.

However, he was never formally reappointed as chief. He

instead holds his position as a ‘holdover’ official.

Throughout this process, Mitchell never missed a

paycheck and he remained covered by his government

provided health insurance. While he was out of a job

from April 18 to July 2, 2018, he received paychecks that

came out of his accrued leave time. He maintains that

he should recover the leave time that was used to pay his

salary during this period. He also asserts that the

ordeal caused him reputational and emotional harm because

councilmember Reeves told the press he was not doing his

job. Additionally, he says he lost out on a job

opportunity with a different municipality because of

Reeves’s comments to the press. However, he never

actually applied for that other job. Finally, separate

from his termination, he contends that the town owes him

upwards of $100,000 in unpaid overtime from years past.

III. Federal Claims

a. FLSA

As stated, Mitchell asserts a FLSA claim against only

Hayneville. He argues that the town has not compensated

him for thousands of hours of overtime pay. The town

concedes that it has not paid Mitchell this money but

argues that it is entitled to summary judgment on the

claim because he is simply not entitled to overtime pay.

The court agrees.

The FLSA requires an employer to compensate a

qualified employee at a rate of at least one and one-half

times the employee’s regular rate for hours worked in

excess of 40 hours in a single work week. See 29 U.S.C.

§ 207(a)(1). So, if the employee worked 43 hours in one

work week, he would be compensated at least one and

one-half times his regular rate for three of those hours.

Id. Overtime pay is awarded to both qualified

wageworkers and salaried workers. But this rule, like

most rules, has its exceptions and exemptions. One such

exemption, codified at 29 U.S.C. § 213(b)(20), is that

public agencies that employ fewer “than 5 employees ...

in law enforcement activities” during the work week do

not have to comply with the overtime.

Mitchell admits that Hayneville employed fewer than

five employees in law enforcement activities during all

relevant workweeks and that his employment falls into the

overtime exemption outlined in § 213(b)(20). See

Response in Opposition (Doc. 51) at 19. He contends,

however, that an unwritten exception to the exemption

should apply. He argues that the town “should be

precluded from asserting [its] exemption because the town

compensates overtime hours for all law enforcement

officers except [him].” Id. Put differently, he

proposes that a public employer waives its rightful

exemption to FLSA’s overtime requirement if the employer

voluntarily decides to pay any of its employees’

overtime.

However, neither the plain language of the statute

nor the implementing regulations state that the overtime

exemption is waived if overtime has been voluntarily paid

in the past. Moreover, outside of the plain, and

dispositive, text of § 213(b)(20), there are good reasons

to reject Mitchell’s rule proposal. First, his rule is

premised on the idea that he is being treated unfairly

compared to his subordinates. However, his salary is

nearly twice as much as the annual wage income of some

of his co-workers who do receive overtime. That

disparity would only increase if Hayneville were required

to give Mitchell overtime. Second, if small police

departments are understood to waive their exemption when

they provide any of their employees with overtime, then

those departments would be incentivized not to give

overtime to anybody--hurting all employees. At bottom,

§ 213(b)(20) leaves it up to small public agencies to

decide whether to award overtime to law enforcement

employees; that discretion is not taken away when it is

exercised.

Accordingly, summary judgment will be granted in

favor of Hayneville on Mitchell’s FLSA claim.

b. Procedural Due Process

Mitchell also brings a procedural-due-process claim

under 42 U.S.C. § 1983 against Hayneville, asserting that

his removal from his post as chief of police on April 18,

2018, violated his constitutional right to due process

because he was not afforded a pre-disciplinary hearing.

To survive summary judgment, Mitchell must create

genuine disputes of fact as to three elements: (1) that

he was deprived “of a constitutionally-protected liberty

or property interest,” (2) by the town, (3) through a

“constitutionally-inadequate process.” Grayden v.

Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003).

The town argues (1) that he did not have a protected

interest in his continued employment as chief of police

because he is a holdover official, and (2) that, even if

he had a protected interest, he was provided an adequate

post-deprivation remedy. It further argues (3) that his

injury is de minimis and therefore does not state a viable

deprivation.

Each of these arguments was addressed, and rejected,

in the court’s December 2020 opinion at the

motion-to-dismiss stage: Mitchell v. Town of Hayneville,

Ala., 2020 WL 7480551 (M.D. Ala. 2020) (Thompson, J.).

In that opinion, the court first concluded, based on

Alabama law, that a “holdover official” like Mitchell has

a right to retain his position until his successor is

chosen, absent cause to fire him. Id. See also Ala.

Code § 11-43-4 (“The clerk and such other officers

elected by the council shall serve until their successor

or successors are elected and qualified.”); City of

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

Att’y Gen., 1900 WL 10711756, at *2 (Sept. 23, 1990)

(explaining that a holdover position is a matter of right

which attaches to the officeholder “unless such holding

over be expressly or impliedly prohibited.”).

The court sees no reason now to depart from the

reasoning, or the outcome, of this decision because the

factual record after discovery affirmatively supports the

relevant facts pleaded in the operative complaint, and

the town has not provided, and the court has not found,

any controlling or persuasive authority to the contrary.

Mitchell could, therefore, be removed in one of two

ways. If his removal was for cause, then he was entitled

to a due-process hearing. A holdover official, until

replaced, maintains a “legitimate claim of entitlement”

to his job, which may be deprived by cause with a

preliminary hearing. Bd. of Regents v. Roth, 408 U.S.

564, 577 (1972). See also Ala. Code § 11-43-160(a)(2)

(provisions for termination of appointed city officials

after for-cause hearing); §§ 11-43-230 to -231

(provisions for pre-disciplinary hearing prior to

suspension or termination of certain city employees). If

his removal was by succession (that is, appointment of a

replacement), then no such hearing was required. Here,

Mitchell was not removed by succession. He was

terminated for cause.1

Because Mitchell was terminated for cause on April

18, 2018, he was entitled to notice and a hearing

beforehand--a hearing that he did not receive. See

Cleveland Board of Education v. Loudermill, 470 U.S. 532,

546 (1985) (“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.”); see

supra Ala. Code §§ 11-43-230 to -231.

The court’s prior December 2020 opinion also

addressed Hayneville’s other arguments, concluding (1)

that an adequate post-deprivation remedy did not absolve

1. Hayneville points to Kanitra v. City of

Greensboro, 769 S.E.2d 911 (Ga. 2015). Kanitra does not

warrant a different conclusion. There, the Georgia

Supreme Court held "that the City Council had authority

to appoint someone to replace [Kanitra} without regard

to cause.” Id. at 912 (emphasis added). Here, Mitchell

was not replaced; he was terminated for cause.

Hayneville because a pre-deprivation hearing was feasible

under the circumstances, see McKinney v. Pate, 20 F.3d

1550, 1562–63 (11th Cir. 1994) (en banc) (explaining that

post-deprivation remedies, like a state claim, satisfy

due process when a pre-deprivation remedy was impossible

or not feasible); see also Barr v. Johnson, 777 F. App'x

298, 303 (11th Cir. 2019) (explaining and applying

McKinney to pre-deprivation violations); Galbreath v.

Hale Cnty., Ala. Comm'n, 754 F. App'x 820, 827-28 (11th

Cir. 2018) (same), and (2) that a procedural-due-process

claim is viable even when, like here, the remedy may only

be nominal damages, see Carey v. Piphus, 435 U.S. 247,

266 (1978). The court still stands by its discussion of

these arguments. In short, the town’s motion for summary

judgment as to Mitchell’s procedural-due-process claim

will be denied.

However, Mitchell’s prospective remedies on this

claim are greatly limited. First, he cannot recover back

pay because he continued to receive a paycheck through

his return to the job in July 2018. He also cannot

recover compensatory damages for the loss of his health

insurance because his health-care coverage ended only a

day before it resumed again.

Second, Mitchell cannot pursue compensatory damages

for emotional distress through his

procedural-due-process claim because he has failed to

produce sufficient evidence that he has sustained such

injuries. A plaintiff’s testimony, alone, can “support

an award of compensatory damages for emotional distress

based on a constitutional violation.” Akouri v. State

of Fl. Dept. of Transp., 408 F.3d 1338, 1345 (11th Cir.

2005). However, the plaintiff’s testimony “must be

sufficiently articulated; neither conclusory statements

that the plaintiff suffered emotional distress nor the

mere fact that a constitutional violation occurred

supports an award for compensatory damages.” Id.

(quoting Price v. Charlotte, 93 F.3d 1241, 1254 (4th Cir.

1996)). In short, the evidence must establish a “genuine

injury.” Carey, 435 U.S. at 264.

Admittedly, Mitchell has presented evidence for a

factfinder to conclude that he has suffered a genuine

emotional injury. However, based on his own testimony,

that emotional harm was not the result of his

termination. His emotional harm was the result of

allegedly false statements made to the public by

defendant Reeves. Affidavit of Kelvin Mitchell (Doc. 52-

3) at 3 (“I was humiliated, upset, and embarrassed by

these false allegations.”). But Mitchell has not brought

a defamation claim: he has brought a due-process claim.

And for that claim, he has not presented any evidence

that indicates that the alleged deprivation, that is, his

termination, caused him emotional distress.

Accordingly, he has failed to establish that a “genuine

[emotional] injury” resulted from his termination, and

therefore compensatory damages for emotional harm are not

appropriate. Carey, 435 U.S. at 264.

Third, and finally, Mitchell cannot seek

compensatory damages for the job opportunity he allegedly

lost due to being terminated. He testified that prior

to his termination he was in employment conversations for

a better-paying police chief job in Dallas County,

Alabama but that these conversations ceased after he was

terminated. However, the evidence shows that he never

actually applied for the other job; nor has he presented

evidence from Dallas County officials indicating that the

conversations stopped because he was terminated as

Hayneville chief, as opposed to some other reason, such

as Dallas County’s having found a more qualified

candidate. Accordingly, Mitchell’s arguments for

compensatory damages based on this ‘lost’ job opportunity

are built on speculation. And speculation alone is

insufficient to place a fact in genuine dispute. See

Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th

Cir. 2005).

Therefore, Mitchell’s procedural-due-process claim

survives summary judgment, but only to the extent that

he may pursue nominal damages and equitable relief in the

form of credit for the leave hours the town expended to

pay him while he was terminated.

c. First Amendment Retaliation

Mitchell claims that the town and councilmembers

Pouncey, Reeves, McDonald, and Tyson-Bailey retaliated

against him because of protected conduct, in violation

of the First Amendment as enforced by 42 U.S.C. § 1983.

He alleges that his support of certain political

candidates motivated defendants to remove him as chief

of police in 2018.

1. The Councilmembers

The councilmembers argue that qualified immunity

bars his political-association retaliation claim, which

is against them in only their individual capacities.

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)). To determine if qualified immunity applies

here, the court engages in two distinct inquiries: (1)

whether Mitchell’s allegations “make out a violation of

a constitutional right,” and (2) 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 court will proceed to determine whether a

violation was committed by each councilmember before

deciding whether the right at issue was clearly

established at the time of the alleged violation. All

said, the court concludes that only Pouncey is entitled

to qualified immunity and summary judgment. Mitchell’s

retaliation claims shall proceed against the town and the

other individual defendants--albeit with only a few

available remedies.

i. Whether a Violation Occurred

“The First Amendment protects political

association.” Elrod v. Burns, 427 U.S. 347, 357 (1976)

(cleaned up). To prevail on his First Amendment

political-association claim, Mitchell must show that (1)

he engaged in constitutionally protected political

affiliation, and (2) “his protected conduct was a

‘substantial or motivating factor’” in the decision to

terminate him.2 Rodriguez v. City of Doral, 863 F.3d

1343, 1350 (11th Cir. 2017) (quoting Holley v. Seminole

Cty. Sch. Dist., 755 F.2d 1492, 1500 (11th Cir. 1985)).

If this burden is met, defendants may escape liability

only by showing that they “would have made the same

employment decision, even had [Mitchell] never engaged

in the protected conduct.” Id. (citing Mt. Healthy City

2. Defendants argue that Mitchell was not terminated

because he never missed out on a paycheck and retained

his health insurance. This argument confuses the scope

of Mitchell’s potential relief with the reality that

Mitchell was, indeed, terminated, even if he was

subsequently put on administrative leave and did not lose

out on a paycheck. If there is any confusion, the

council’s minutes say it all: “A motion was made ... that

Chief Mitchell[] be terminated ... Motion unanimously

carried.” April 18, 2018 Meeting Minutes (Doc. 46-4) at

3. And “[o]f course, termination constitutes an adverse

employment action.” Rodriguez v. City of Doral, 863 F.3d

1343, 1350 (11th Cir. 2017) (citing McCabe v. Sharrett,

12 F.3d 1558, 1565–67 (11th Cir. 1994)).

Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).

Defendants put forward arguments on all three steps.

To begin, the councilmembers argue that Mitchell has

not shown that he engaged in constitutionally protected

political affiliation because his role as chief of police

falls under the political patronage exception outlined

by the Supreme Court in Branti v. Finkel, 445 U.S. 507,

518 (1980). In Branti, the Court stated that political

affiliation is an impermissible reason for firing a

government employee absent a showing that “party

affiliation is an appropriate requirement for the

effective performance of the public office involved.”

445 U.S. at 518.

The councilmembers assert that Mitchell’s role as

the Hayneville chief of police is a position that

requires political affiliation to be performed

“effective[ly].” Id. This argument is belied by the

councilmembers’ own testimony. Each councilmember

testified that political affiliation is not a

consideration, let alone a requirement, for the effective

performance of the Hayneville chief of police. See

Deposition of Justin Pouncey (Doc. 52-10) at 13–14;

Deposition of Lula Tyson-Bailey (Doc. 52-22) at 6;

Deposition of Sharon Reeves (Doc. 52-21) at 8; Deposition

of Cynthia McDonald (Doc. 52-20) at 8. Accordingly,

Mitchell does not fall into the political patronage

exception, and, because Mitchell publicly supported

certain political candidates (going as far to canvass for

one of them) his political affiliation was unquestionably

constitutionally protected. See Branti, 445 U.S. at 518.

However, that does not end the analysis. To prevail

on his First Amendment political-association claim,

Mitchell must also show that “his protected conduct was

a ‘substantial or motivating factor’” in the decision to

terminate him. Rodriguez, 863 F.3d at 1350 (quoting

Holley, 755 F.2d at 1500).

To establish that an adverse action was motivated by

plaintiff’s protected conduct, a plaintiff must present

evidence that the decisionmakers were aware of the

political association at the time of adverse action. See

Smith v. City of Greensboro, 647 Fed. App’x 976, 982

(11th Cir. 2016) (citing Brungart v. BellSouth

Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000)).

And “if there is unrebutted evidence that the decision

maker did not have knowledge that the employee engaged

in protected conduct” the plaintiff will be unable to

establish causation even if the protected conduct and

adverse action are temporally proximate. Id. (quoting

Brungart, 231 F.3d 791 at 799).

Here, all four councilmembers testified that they

were unaware of whom Mitchell supported in the 2016

election. However, Mitchell has presented sufficient

evidence to rebut these assertions--at least for Reeves,

McDonald, and Tyson-Bailey. First, Mitchell testified

that he explicitly told Tyson-Bailey whom he planned to

support in the election. Second, he testified that prior

to the election he had a “storage room” meeting with

Reeves and her husband. Deposition of Kelvin Mitchell

(Doc. 52-2) at 51. During this meeting, according to

Mitchell, Reeves’s husband told Mitchell that Reeves,

McDonald, and Tyson-Bailey (but not Pouncey) had a plan

to “change the Town of Hayneville” by replacing the

then-mayor and his supporters, and that if Mitchell

continued to stay aligned with the mayor’s side, then

“there are going to be some changes.”3 Id.at 51-52. Not

only did she not disagree with her husband’s recitation

of her, McDonald, and Tyson-Bailey’s plan to “get[] rid”

of Mitchell if he stayed on the wrong political side,

Reeves, according to Mitchell, validated her husband,

saying, “Yeah. This is what we’re going to do.” Id. at

52 (emphasis added). Based on this testimony and viewing

the facts in the light most favorable to Mitchell, a

reasonable factfinder could determine that Reeves,

3. Defendants contend that this conversation cannot

establish awareness because Mitchell “does not even

mention his purported political support of a specific

candidate.” Reply Brief (Doc. 54) at 22. While this is

true, a reasonable factfinder could read the testimony

in its entirety and conclude, based on the context and

implicit assertions, that Reeves, McDonald, and

Tyson-Bailey all knew whom Mitchell supported. Further,

because Mitchell maintained his political allegiances and

was ultimately terminated as warned, Reeves’s husband’s

prophecy come-to-life provides compelling circumstantial

evidence that Tyson-Bailey, McDonald, and Reeves were

aware of Mitchell’s political association.

Tyson-Bailey, and McDonald were acting in concert and

were aware that Mitchell supported their political

opponents before they voted to remove him.

However, Mitchell has not presented sufficient

evidence to rebut Pouncey’s denial of knowledge about his

political associations. Again, Pouncey was not mentioned

in the storage-room conversation and that evidence cannot

attach to Pouncey. Nevertheless, Mitchell attempts to

rebut Pouncey’s denial of knowledge about his political

associations in two ways. First, he argues that

Hayneville is a small community, making it “difficult to

believe that Defendants were unaware of who did or did

not support them politically.” Response in Opposition

(Doc. 51) at 38. But a person’s political affiliation

can be held privately, even in a small community, and the

argument that community size, alone, can establish

awareness of neighbors’ political affiliation steps into

the realm of inadmissible speculation. See Cordoba, 419

F.3d at 1181 (“Speculation does not create a genuine

issue of fact.”). And second, Mitchell argues that

Pouncey was aware of his political affiliations because

Pouncey filed a lawsuit against the former mayor; but an

unrelated lawsuit is irrelevant to whether Pouncey had

knowledge of whom Mitchell politically supported.

Lacking evidence establishing his requisite awareness,

no reasonable factfinder could find that Pouncey’s vote

was motivated by Mitchell’s political affiliation.

Summary judgment will therefore be granted for Pouncey

on this claim.

Nonetheless, as discussed, there are genuine

disputes of fact as to whether three of the four

councilmembers--Reeves, Tyson-Bailey, and McDonald--were

aware of Mitchell’s political associations. And because

Mitchell was terminated right after the 2016 election was

resolved, he has created a genuine issue of fact as to

whether his termination was motivated by his political

affiliation. See Stanley v. City of Dalton, 219 F.3d

1280, 1291 (11th Cir. 2000) (holding that a plaintiff’s

burden in showing the defendants were motivated by

protected conduct is not a “heavy one”); see also Thomas

v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.

2007) (holding that causation “can be met by showing

close temporal proximity between the [protected conduct]

and the adverse employment action.”).

Because Mitchell has satisfied his requisite

showings as to Reeves, Tyson-Bailey, and McDonald, the

burden shifts to these defendants to show that they would

have terminated Mitchell absent his political

associations. See Rodriguez, 863 F.3d at 1350. For this

burden, defendants have produced evidence indicating that

they terminated Mitchell because they had been told about

or personally observed Mitchell failing to perform his

duties as chief of police. However, this evidence is not

sufficient to put the question beyond genuine dispute.

While it may (or may very well not) be true that

defendants believed Mitchell was not adequately

performing as chief,4 the evidence in the record, when

4. Defendants claim that prior to the vote to

terminate Mitchell they were told that Mitchell was not

responding to 911 calls. However, defendants did not

investigate these alleged verbal complaints or inquire

into these complaints with Mitchell himself. Defendants

viewed in Mitchell’s favor, is sufficient for a

reasonable factfinder to determine that Mitchell would

not have been terminated absent his political

associations. As already discussed, Mitchell testified

that Reeves’s husband, in Reeves’s presence, told

Mitchell that Reeves, McDonald, and Tyson-Bailey were all

a part of a plan to remove public employees that supported

their opponents. Indeed, Reeves’s husband essentially

told Mitchell that they planned to retaliate against him

unless he stopped his political affiliations with other

candidates. But there is more. For over a month the

refused to tell Mitchell about these alleged complaints

for weeks after they terminated him and only acquired

documentation of any complaints against Mitchell months

after they terminated him. Once informed of these

complaints, post-termination, Mitchell presented

evidence indicating that the complaints against him were

baseless. Accordingly, the record does not

“indisputably” establish that defendants were “in fact

motivated, at least in part, by objectively valid

reasons” in terminating Mitchell. Stanley, 219 F.3d at

1296; Cf. Rioux v. City of Atlanta, Ga., 520 F.3d 1269,

1285 (11th Cir. 2008) (finding that it was beyond dispute

that officials had a valid reason to take an adverse

action against an employer where the officials relied on

an unrebutted neutral, official investigation and report

into the plaintiff’s misconduct).

council refused to tell Mitchell why he was terminated,

even though Mitchell repeatedly asked for an explanation

under threat of suit, which could lead a factfinder to

determine that defendants were then, and are now, masking

their unconstitutional “behavior behind a complex web of

post hoc rationalizations.” Holley, 755 F.2d at 1505

(quoting Peacock v. Duval, 694 F.2d 644, 646–48 (9th Cir.

1982)). Additionally, Mitchell was terminated once the

new council was elected--just like Reeves’s husband

suggested to Mitchell would happen if Mitchell supported

the wrong candidate. Meanwhile, the complaints that

supposedly supported the decision to fire Mitchell did

not surface in writing until after he was terminated; and

there is a genuine dispute as to whether those complaints

were investigated. Considering all the evidence, whether

defendants would have fired Mitchell regardless of his

political affiliations “is a factual dispute that must

be resolved at trial and is inappropriate for resolution

on summary judgment.” Lewis v. Eufaula City Bd. of Educ.,

922 F. Supp. 2d 1291, 1305 (M.D. Ala. 2012) (Thompson,

J.).

Therefore, Mitchell has created genuine disputes of

fact as to whether Reeves, Tyson-Bailey, and McDonald

violated Mitchell’s constitutional right to engage in

political association protected by the First Amendment.

ii. Whether the Right Was Clearly Established

The court now turns to the remaining

qualified-immunity determination: Whether Reeves,

Tyson-Bailey, and McDonald violated clearly established

law when they voted to terminate Reeves. See Pearson,

555 U.S. at 231 (holding that qualified immunity cannot

attach if an official, acting in his discretionary

function, violated clearly established law). In

addressing whether a legal right was clearly established,

the overarching question before the court is whether “the

state of the law ... gave [defendants] fair warning that

their alleged treatment of [the plaintiff] was

unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 740

(2002). There are three recognized pathways for

providing such notice and clearly establishing law: (1)

factually indistinguishable caselaw from the Eleventh

Circuit Court of Appeals or Supreme Court, (2) broad

statements of legal principles that apply with “obvious

clarity to the circumstances,” or (3) “conduct so

egregious that a constitutional right was clearly

violated, even in the total absence of case law.” Crocker

v. Beatty, 995 F.3d 1232, 1240 (11th Cir. 2021). So, was

the law clearly established when defendants voted to

terminate Mitchell? The answer is yes.

It was clearly established at the time of Mitchell’s

termination that his termination could not be motivated

by his political association.5 It has long been a feature

5. Despite defendants’ contrary protestations, it

has long been clearly established that termination is the

quintessential adverse-employment action--even if that

termination is short lived and even if it resulted in

minor economic damage. See Branti, 445 U.S. at 513. And

here, it is undisputed that Mitchell was unequivocally

terminated for a short time, see April 18, 2018 Meeting

Minutes (Doc. 46-4) at 3, even though he was later put

on administrative leave and was able to continue

receiving pay by using saved leave hours.

of law as declared by the Supreme Court and the Eleventh

Circuit that the government cannot fire its employees

solely because of whom they politically support unless

that political support is a requirement of their job.6

See Branti, 445 U.S. at 514-16; Mt. Healthy, 429 U.S. at

287; Elrod, 427 U.S. at 357; see also Rodriguez, 863 F.3d

at 1350 (holding that the government may not take adverse

actions against a public employee “solely because of his

political association or beliefs”).

Defendants do not dispute this clearly established

rule. Rather, they argue that they were not, in fact,

motivated by Mitchell’s political association when they

fired him. Or, alternatively, they argue that they were,

at least, motivated in part by lawful and unlawful

6. To the extent defendants assert that it was not

clearly established that Mitchell’s job as chief fell

outside of the political patronage exception outlined in

Branti, 445 U.S. at 513, that contention is without

merit, because, as explained earlier, defendants,

Mitchell’s employers, all testified that political

affiliation was an irrelevant consideration for the post.

Deposition of Justin Pouncy (Doc. 52-10) at 13–14;

Deposition of Lula-Tyson Bailey (Doc.52-22) at 6;

Deposition of Sharon Reeves (Doc. 52-21) at 8; Deposition

of Cynthia McDonald (Doc. 52-20) at 8.

considerations--that is, they acted with mixed motives.

However, as explained above, Mitchell has placed both of

those factual contentions in genuine dispute.

The Eleventh Circuit has held that the “presence of

a jury issue about a defendant’s improper intent does not

necessarily preclude qualified immunity.” Stanley, 219

F.3d at 1295. Put differently, even when a plaintiff has

created genuine disputes of fact as to whether the

defendant’s protected conduct was a substantial

motivating factor, that does not mean qualified immunity

is unavailable. Rather, when the “facts assumed for

summary judgment purposes ... show mixed motives (lawful

and unlawful motivations) and pre-existing law does not

dictate that the merits of the case must be decided in

plaintiff's favor, the defendant is entitled to

immunity.” Id. That is, the defendant is entitled to

qualified immunity if the record “indisputably

establishes that the defendant in fact was motivated, at

least in part, by lawful considerations” and pre-existing

law does not dictate a result in plaintiff's favor. Id.

at 1296.

Here, however, the summary judgment record does not

‘indisputably’ establish that defendants terminated

Mitchell on a lawful basis. Rather, a reasonable

factfinder could conclude that there was “no mixed

motive, just an unlawful [] one,” meaning “qualified

immunity could not apply.” Rioux v. City of Atlanta,

Ga., 520 F.3d 1269, 1286 (11th Cir. 2008) (Edmonson,

C.J., concurring).

If a factfinder determines that Mitchell’s removal

was motivated solely by his political affiliation, then

Reeves, Tyson-Bailey, and McDonald violated clearly

established law. See Rodriguez, 863 F.3d at 1350. If a

factfinder determines that Mitchell’s removal was

motivated, at least in part, by permissible

considerations (and pre-existing law did not dictate a

result in his favor), then these individual defendants

are entitled to qualified immunity. See Stanley, 219

F.3d at 1296. But based on the evidence in the record,

the court cannot say which of these factual narratives

will bear out. See Holley, 755 F.2d at 1501 (holding

that the First Amendment political-association causation

determination is “a question of fact ... which generally

must be resolved by the jury or judge sitting as

factfinder.”). Accordingly, genuine disputes of fact

preclude Reeves, Tyson-Bailey, and McDonald from being

granted qualified immunity.

One final point. The outcome here is different from

the court’s prior grant of qualified immunity for the

individual defendants on Mitchell’s

procedural-due-process claim. See Mitchell, 2020 WL

7480551, at *7. In that analysis, the court determined

the individual defendants were entitled to qualified

immunity because, despite finding a constitutional

violation, it was not clearly established that a holdover

official like Mitchell was not an at-will type of public

employee that could be fired without process. Id. That

analysis has no weight here because it has been clearly

established that even an at-will public employee may not

be terminated for engaging in conduct protected by the

First Amendment. “Although at-will Government employees

may be fired with or without reason, they may not be

fired for exercising their constitutional rights.”

McMullen v. Carson, 754 F.2d 936, 938 (11th Cir. 1985)

(citing Branti, 445 U.S. at 514–16); Mt. Healthy, 429

U.S. at 283–84 (“Even though he could have been

discharged for no reason whatever ... he may nonetheless

establish a claim ... if the decision ... was made by

reason of his exercise of constitutionally protected

First Amendment freedoms.”)

Accordingly, McDonald, Reeves, and Tyson-Bailey are

not entitled to qualified immunity or summary judgment

on Mitchell’s First Amendment retaliation claim. The

claim shall proceed against all individual defendants,

except Pouncey, who is entitled to qualified immunity.

2. Hayneville

Because Mitchell has shown that the majority of the

councilmembers voted to remove him in violation of the

First Amendment, he may impute those councilmembers’

improper motives to Hayneville. See Mason v. Vill. of

El Portal, 240 F.3d 1337, 1339 (11th Cir. 2001) (holding

that the improper motive of a majority of council voters

can create municipal liability). Accordingly, Mitchell

has a viable First Amendment political-association claim

against the town.7

3. Prospective Remedies

As with his procedural-due-process claim, Mitchell

cannot pursue compensatory damages for his First

Amendment retaliation claim. He may, though, pursue

punitive damages under this claim against McDonald,

Reeves, and Tyson-Bailey in their individual capacities.

A jury may assess punitive damages in an action under

§ 1983 if it determines the defendants’ actions were

motivated “by evil motive or intent” or when the

defendants’ actions “involve[] reckless or callous

7. Unlike the individual defendants, qualified

immunity is not available to municipal entities, like

Hayneville.

indifference to the federally protected rights of

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

Mitchell has presented evidence that Reeves, McDonald,

and Tyson-Bailey, working in concert, terminated Mitchell

because he refused to support their preferred politic

candidates (themselves). A reasonable juror could

conclude that such actions, if true, constituted “callous

indifference” to Mitchell’s First Amendment right. Id.

Granted, the prospective punitive damages may be

limited given the lack of compensatory damages. See BMW

of N. Am., Inc. v. Gore, 517 U.S. 559, 574 (1996) (holding

that the ratio between the harm suffered by the plaintiff

and the punitive damages award is one factor to consider

when evaluating whether a punitive award is

constitutional). However, while compensatory damages

play a role in the scope of punitive damages,

compensatory damages are not necessary for a jury to

award punitive damages. See Carey, 435 U.S. at 264 n.22

(citing a case holding that nominal damages can “support

an award of punitive damages”); see also Sepulveda v.

Burnside, 432 F. App'x 860, 866 (11th Cir. 2011)

(collecting cases where punitives were awarded with only

one dollar in damages). At bottom, when a plaintiff can

establish that defendants acted maliciously or

recklessly, “[w]hether to award punitives is left for the

jury, which may or may not make such an award.” Wright

v. Sheppard, 919 F.2d 665, 672 (11th 1990).

Punitive damages, however, are not available against

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

Inc., 453 U.S. 247, 271 (1981). But like in the

procedural-due-process context, equitable relief is

viable against Hayneville as to Mitchell’s retaliation

claim.

Accordingly, this claim will proceed against

Hayneville and against Reeves, McDonald, and Tyson-Bailey

in their individual capacities. As to Hayneville,

Mitchell may seek equitable relief and nominal damages.

As to the three remaining individual defendants, he may

seek nominal damages and punitive damages.

IV. State Claims

Because Mitchell has abandoned his state claim for

breach of contract against Hayneville, see Response in

Opposition (Doc. 51) at 1 n.1, summary judgment will be

granted on that claim.

Mitchell also brings a state ‘wrongful-termination’

claim against Hayneville. He alleges he was wrongfully

terminated under Alabama law when he was fired as

Hayneville chief of police without a pre-disciplinary

hearing. For this claim, the town advances two merits

arguments and several arguments about Mitchell’s scope

of relief. The court will first briefly address the

merits arguments.

Hayneville argues that Mitchell cannot bring a

wrongful-termination claim because (1) his term of office

had expired, and (2) because he was not terminated “as

envisioned by the statute.” Motion for Summary Judgment

(Doc. 45) at 41. Neither argument is availing.

Section 11-43-230 of the Code of Alabama requires

municipalities to provide a pre-disciplinary hearing to

law enforcement officers who are being terminated for

cause. A “law enforcement officer,” as defined by

Alabama Code § 11-43-231, does not include “any person

whose term of office has expired.” Therefore, according

to the town, Mitchell was not entitled to a hearing

because his term of office expired in 2016--two years

before his termination. This argument paints an

incomplete picture.

Under Alabama law, Mitchell was entitled to a

pre-disciplinary hearing because even though his official

term of office had expired, his term of office as a

holdover official was nonetheless running. Under Alabama

law, for towns like Hayneville with a population of fewer

than 6,000 people, “The 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. Until such succession, the lapsed official

becomes a “hold over” official, which is a position held

as a matter of right. See City of Foley - Municipalities

- Elections, No. 1981-119, Ala. Op. Att’y Gen., 1990 WL

10711756, at *2 (Sept. 23, 1990). Therefore, Mitchell’s

term of office as a holdover official had not expired.

Hayneville’s second contention that Mitchell was not

terminated as “envisioned” by § 11-43-230 is more easily

resolved. The town once again argues that Mitchell was

not terminated because he ultimately never lost out on a

paycheck. To support this argument, the town does not

cite Alabama law but instead cites a handpicked

definition from a single dictionary. However, the court

need not delve into the weeds of legal dictionaries

because the Hayneville town council explicitly voted to

“terminate” Mitchell, and Mitchell was terminated, albeit

for a short time. April 18, 2018, Meeting Minutes (Doc.

46-4) at 3. Accordingly, Mitchell was terminated as

envisioned by § 11-43-230, and he falls under that

statute’s protection from being fired without a

pre-disciplinary hearing.

Merits aside, the court now turns to Hayneville’s

arguments concerning Mitchell’s scope of relief for his

wrongful-termination claim. Mitchell seeks equitable

relief, nominal damages, and compensatory damages for

this claim. Response in Opposition (Doc. 51) at 1.

However, as discussed in this court’s prior opinion,

compensatory damages for back pay are not available to

him because he was paid in full throughout the

three-month long duration of his termination and his

health-insurance never lapsed. See Mitchell, 2020 WL

7480551, at *3. Nonetheless, Mitchell still seeks

nominal damages and equitable relief for his

wrongful-termination claim. Equitable relief is

available, but nominal damages are not.

As defendants reiterate, Alabama Code § 11-47-23

requires that all claims against municipalities 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. Hayneville argues that Mitchell

failed to provide timely notice of his

wrongful-termination claim and therefore cannot pursue

any monetary remedies, nominal or otherwise. The town

is correct.

Mitchell brought this suit over six months after his

wrongful-termination claim accrued. Therefore, his suit

itself failed to timely “present[]” his

wrongful-termination claim. Ala. Code § 11-47-23.

Nonetheless, he argues that he did timely present his

claim in two other ways. First, he asserts that he

presented an ‘intent to sue’ letter to the council two

months after he was removed as chief of police. Second,

he gave an ‘intent to sue’ letter to the town attorney,

who forwarded that letter to the Alabama Municipal

Insurance Company. Through these two letters, according

to Mitchell, the town was put on statutory notice of his

wrongful termination claim.

But here’s the rub. Neither of these letters mention

a wrongful-termination claim, nor were they given to the,

the town clerk, as required by § 11-47-23. While the

letters may have given Hayneville actual notice that

Mitchell had issues with his termination and that he

intended to sue, the letters did not provide the

“statutorily required notice” to the town clerk that he

would bring a wrongful termination suit. Cobb v. Aponte,

2010 WL 2609279, at *2 (M.D. Ala. June 28, 2010) (Coody,

M.J.) (“Actual notice of a claim does not replace the

statutorily required notice.”). This failure is

especially true here because Mitchell’s letter to the

town council, the only letter Mitchell himself sent to

town representatives, does not mention his termination.

It mentions only his dispute over unpaid income and

overtime. Exhibit 13 (Doc. 52-13) at 2; see generally

Large v. City of Birmingham, 547 So. 2d 457, 458 (Ala.

1989) (“Mere knowledge of the incident resulting in

injury does not satisfy the objectives of the notice-of-

claim statute.”). Mitchell, therefore, failed to comply

in a timely manner with the notice requirement, and his

wrongful-termination claim, to the extent it seeks

monetary damages, nominal or otherwise, is time-barred

by § 11-47-23.

However, Alabama Code § 11-47-23 presents no barrier

to Mitchell’s wrongful-termination claim to the extent

that it seeks equitable relief. And because Mitchell’s

wrongful-termination claim is otherwise viable on the

merits, Hayneville’s motion for summary judgment on this

claim will be denied. Accordingly, in terms of remedies,

Mitchell’s sole avenue for relief under his

wrongful-termination claim is an equitable order

requiring Hayneville to credit him with the leave hours

that were used to pay him while he was terminated from

April 18, 2018, to July 2, 2018.

***

In sum, defendants’ motion for summary judgment will

be granted in part and denied in part. The motion will

be granted as to Mitchell’s FLSA overtime claim against

Hayneville, his state breach-of-contract claim against

the town, and his First Amendment retaliation claim to

the extent it is against Pouncey.

The motion will be denied as to his

procedural-due-process claim against the town for nominal

damages and equitable relief; his First Amendment

retaliation claim against the town for nominal damages

and equitable relief, and against Reeves, McDonald, and

Tyson-Bailey for nominal and punitive damages; and his

wrongful-termination claim against the town for equitable

relief. The motion will be granted in favor of defendants

in all other respects (including limitations on relief)

as to these claims.

A judgment consistent with this opinion will be

entered separately.

DONE, this the 6th day of February 2023.

/s/ Myron H. Thompson

UNITED STATES DISTRICT JUDGE