Thompson v. Pettway

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DAVID THOMPSON, et al., )

)

Plaintiff, )

)

v. ) Case No. 2:20-cv-746-GMB

)

MARK PETTWAY, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiffs David Thompson, Wendall Major, Terry Hale, Al Finley, and

Wayne Curry filed the instant complaint pursuant to 42 U.S.C. § 1983 against Sheriff

Mark Pettway and the Personnel Board of Jefferson County, Alabama alleging

violations of their procedural due process rights. Doc. 30. The parties have

consented to the jurisdiction of a United States Magistrate Judge pursuant to 28

U.S.C. § 636(c). Doc. 24.

Before the court are two motions for summary judgment and a motion to

strike. Pettway filed the first motion for summary judgment, along with a brief and

evidence in support. Docs. 39 & 43. The Board filed the second motion with a brief

and evidence in support. Docs. 41 & 42. Plaintiffs filed briefs and evidence in

opposition to the motions. Docs. 45–47. Both Pettway and the Board filed reply

briefs in support of their motions for summary judgment. Docs. 48 & 49. In his

reply brief, Pettway argued that the court should strike one of the affidavits filed by

Plaintiffs in opposition to summary judgment. Doc. 49 at 4 n.3. The court construed

this argument as a motion to strike and ordered briefing. Doc. 50. Despite receiving

an extension of their deadline (Doc. 52), Plaintiffs did not respond to the motion to

strike. After careful consideration of the parties’ submissions and the applicable

law, and for the reasons to follow, the court concludes that the motion to strike and

the motions for summary judgment are due to be granted.

I. MOTION TO STRIKE

Pettway moves to strike the affidavit of Judi McAnally, who was the Payroll

Coordinator for the Jefferson County Sheriff’s Office during the relevant time

period, because Plaintiffs did not disclose her in their initial disclosures or discovery

responses.1 Doc. 49 at 4 n.3; Doc. 50. In the alternative, Pettway asks the court to

consider a supplemental affidavit (Doc. 49-1) he submitted in response to

McAnally’s affidavit.

Federal Rule of Civil Procedure 26 imposes various duties on litigants to

disclose information during the discovery process. In general, Rule 26(a)(1)(A)

requires initial disclosure of the name of each individual likely to have discoverable

information that may be used to support a claim or defense, along with the

1 Pettway represents that Plaintiffs never answered his discovery requests. Doc. 49 at 4 n.3.

Pettway, however, never moved to compel answers to any outstanding discovery requests.

corresponding subject matter. Litigants must supplement their Rule 26 disclosures

at appropriate intervals. Fed. R. Civ. P. 26(e)(1). Rule 37 describes the consequences

for a party’s failure to follow these rules. Exclusion of the corresponding evidence

is the default sanction for a failure to comply with Rule 26(a), but district courts have

the discretion to decide whether to exclude evidence under Rule 37(c). See Prieto v.

Malgor, 361 F.3d 1313, 1318 (11th Cir. 2004) (stating that “[t]he district court may

impose other appropriate sanctions in addition to or in lieu of the evidentiary

exclusion”). Under Rule 37(c)(1), a party who fails to provide the information

required under Rule 26(a) or (e) is not allowed to use that information at trial, at a

hearing, or in a motion, unless the failure is substantially justified or harmless. “‘The

burden of establishing that a failure to disclose was substantially justified or

harmless rests on the nondisclosing party.’” Mitchell v. Ford Motor Co., 318 F.

App’x 821, 824 (11th Cir. 2009) (quoting Leathers v. Pfizer, Inc., 233 F.R.D. 687,

697 (N.D. Ga. 2006)).

Despite having the opportunity to respond to the motion to strike and an

extension of their deadline to do so (Docs. 50 & 52), Plaintiffs did not file a response

to the motion to strike and have not explained why they failed to disclose McAnally

as a witness. With no explanation for the non-disclosure, the exclusion of

McAnnally’s testimony “‘is automatic and mandatory.’” Dickenson v. Cardiac &

Thoracic Surgery of E. Tenn., P.C., 388 F.3d 976, 983 (6th Cir. 2004) (quoting

Musser v. Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir. 2004)). Accordingly,

the motion to strike her testimony is due to be granted.2

II. MOTIONS FOR SUMMARY JUDGMENT

A. Standard of Review

Summary judgment is appropriate “if the movant shows that 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). “Only disputes over facts that might affect the

outcome of the suit under the governing law will properly preclude the entry of

summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A dispute of material fact is genuine only if “the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Id.

The moving party “always bears the initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of the

pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, which it believes demonstrate the absence of a genuine

[dispute] of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(internal quotation marks omitted). In responding to a properly supported motion

for summary judgment, the nonmoving party “must do more than simply show that

2 Because the court strikes McAnally’s affidavit, it will not consider Pettway’s supplemental

affidavit responding to her testimony.

there is some metaphysical doubt as to the material fact.” Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Indeed, the nonmovant must

“go beyond the pleadings” and submit admissible evidence demonstrating “specific

facts showing that there is a genuine [dispute] for trial.” Celotex, 477 U.S. at 324

(internal quotation marks omitted). If the evidence is “merely colorable, or is not

significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at

249 (citations omitted).

When a district court considers a motion for summary judgment, it “must view

all the evidence and all factual inferences reasonably drawn from the evidence in the

light most favorable to the nonmoving party, and must resolve all reasonable doubts

about the facts in favor of the nonmovant.” Rioux v. City of Atlanta, Ga., 520 F.3d

1269, 1274 (11th Cir. 2008) (citation and internal quotation marks omitted). The

court’s role is not to “weigh the evidence and determine the truth of the matter but

to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.

“If a reasonable fact finder evaluating the evidence could draw more than one

inference from the facts, and if that inference introduces a genuine issue of material

fact, then the court should not grant summary judgment.” Allen v. Bd. of Pub. Ed.

for Bibb County, 495 F.3d 1306, 1315 (11th Cir. 2007) (citation omitted).

Importantly, if the nonmovant “fails to adduce evidence which would be sufficient

. . . to support a jury finding for [the nonmovant], summary judgment may be

granted.” Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1370

(11th Cir. 1997) (citation omitted).

B. Statement of Relevant Facts

Created by the Enabling Act in 1935, the Personnel Board is an independent

government agency charged with administering the civil service system for public

employees in Jefferson County, Alabama. See 1945 Ala. Acts 248 (as amended);

Doc. 42-1 at 85–86. The Personnel Board established a set of Rules and Regulations

“governing examination, appointments, suspensions, dismissals, . . . , [p]romotions,

[d]emotions, [t]ransfers, salary adjustments and ‘any and all other rules and

regulations necessary for administering a scientific and economical’ personnel

system.” Doc. 42-1 at 85.

1. Pertinent Rules and Regulations

Rule 11.6 of the Rules and Regulations place employees in a 12-month

probationary period after any promotion. Doc. 42-1 at 4, 120–21. During this

probationary period, an employee “may be returned to his or her last held class if the

position is still vacant and agreed upon by the Appointing Authority over the

formerly held Class.” Doc. 42-1 at 121. This procedure is called a “roll back.”

See Doc. 42-1 at 3–4. Employees do not have a right to appeal a roll-back decision

under Rule 12.2, which is the rule governing appeals for disciplinary actions.

Doc. 42-1 at 121, 125.

Rule 15 of the Rules and Regulations, however, provides for a grievance

procedure when an employee alleges “that an action taken by a co-employee,

supervisor or other person acting on behalf of the Regular Employee’s Appointing

Authority, adversely affected a substantial term or condition of the . . . [e]mployee’s

employment with the Appointing Authority.” Doc. 42-1 at 143. The grievance

procedure sets out three steps for processing a complaint. The employee first

submits any grievance to his supervisor and files it with the Employee Relations

Department of the Personnel Board. Doc. 42-1 at 144. The supervisor then responds

to the grievance or refers it to his immediate supervisor. Doc. 42-1 at 144. If the

supervisor fails to respond or the response does not satisfy the employee, the

grievance proceeds to step two. Doc. 42-1 at 144.

Under step two, the employee submits the grievance to his department head.

Doc. 42-1 at 144. If the employee disagrees with the department head’s decision,

he proceeds to step three by submitting the grievance to the Director of the Personnel

Board. Doc. 42-1 at 144. The Director must notify the employee in writing of his

decision, and either party may appeal to the Personnel Board. Doc. 42-1 at 144. If

the Director determines the grievance “is subject to adjustment under Rule 15, he

shall then appoint a Hearing Officer.” Doc. 42-1 at 144. The Hearing Officer

conducts a formal hearing, renders findings of fact, and makes a formal

recommendation to the Personnel Board. Doc. 42-1 at 145. The Personnel Board

must make a final decision on the grievance at its next meeting. Doc. 42-1 at 145.

2. Chronology of Events

Pettway defeated Mike Hale, the incumbent Jefferson County Sheriff, in an

election on November 6, 2018. Doc. 39-1 at 2. After he lost the election but before

Pettway took office, Hale promoted several employees, including Plaintiffs.

Doc. 39-1 at 2–3, 7. Specifically, Hale promoted:

• Thompson from captain to metro area crime center commander on

November 20, 2018;

• Finley from captain to deputy chief on November 22, 2018;

• Major from lieutenant to captain on December 3, 2018; and

• Hale and Curry from sergeant to lieutenant on December 20, 2018.

Doc. 39-1 at 2-3, 7.

Pettway began his term as Sheriff of Jefferson County on January 14, 2019.

Doc. 39-1 at 3. When he learned of Hale’s promotions during the transition period,

he “decided to roll those affected employees back to their prior rank until [he] had

an opportunity to evaluate them for promotion.” Doc. 39-1 at 3. To that end, Pettway

completed roll-back request forms and submitted them to the Personnel Board on

January 16 for all of the promoted employees, including Plaintiffs. Doc. 39-1 at 3–

4, 9–13. He also notified each affected employee. Doc. 39-1 at 15–18. On January

18, the Personnel Board confirmed that the recently promoted employees were roll-

back eligible under Rule 11.6 because they were “within their probationary period

for the promoted job class.” Doc. 39-1 at 20.

After returning to their previous positions, Plaintiffs filed individual Rule 15

grievances. Doc. 39-1 at 4; Doc. 42-1 at 7–8, 17–18, 31–33, 44–45, 63–64. The

grievances advanced through the Rule 15 procedure (Doc. 42-1 at 9–12, 19–26, 35–

39, 46–57, 61–62), and at step three the Director of the Personnel Board rejected

their grievances because they had been in the probationary phase at the time of the

roll-back decisions, so the roll backs were proper under Rule 11. Doc. 39-1 at 23–

27; Doc. 42-1 at 15, 27, 42, 58. He also determined that the roll-back decisions were

not appealable. Doc. 39-1 at 23–27; Doc. 42-1 at 15, 27, 42, 58. Plaintiffs disagreed

and advanced to step three of the grievance procedure. See Doc. 42-1 at 73.

On March 12, 2019, the three members of the Personnel Board heard

argument from all five of the plaintiffs. Doc. 42-1 at 73–75. The Personnel Board

found that Rule 11.6(b) of the Rules and Regulations authorized Pettway to return

Plaintiffs to their previously held positions. Doc. 42-1 at 75. The Personnel Board

also concluded that Plaintiffs were not entitled to any further hearings or process

under Rule 15. Doc. 42-1 at 75.

C. Discussion

The Second Amended Complaint alleges that Pettway and the Personnel

Board violated Plaintiffs’ procedural due process rights in violation of the 14th

Amendment. Doc. 30 at 11. Specifically, Plaintiffs contend they were demoted

without “adequate notice or a meaningful pre and/or any post-deprivation hearing.”

Doc. 30 at 4, 6, 7–8, 9 & 11. The Personnel Board argues that summary judgment

is due to be granted on the claims against it because Plaintiffs were not deprived of

a constitutionally protected liberty or process interest, nor did they receive

constitutionally inadequate process. Doc. 42 at 8–12. Pettway contends that

summary judgment is appropriate on the claims stated against him because he is

entitled to qualified immunity, and at any rate did not violate Plaintiffs’ due process

rights. Doc. 43 at 4–11. The court concludes that Plaintiffs’ due process claims fail

for the following reasons.

“The due-process clause [of the Fourteenth Amendment] provides that the

rights to life, liberty, and property cannot be deprived except pursuant to

constitutionally adequate procedures.” Hatcher v. Bd. of Pub. Educ. & Orphanage,

809 F.2d 1546, 1548–49 (11th Cir. 1987). If the government does not comply with

the Due Process Clause, the aggrieved party may seek compensatory damages and

equitable relief under 42 U.S.C. § 1983. McKinney v. Pate, 20 F.3d 1550, 1555 &

1557 (11th Cir. 1994). To that end, “a § 1983 claim alleging a denial of procedural

due process requires proof of three elements: (1) a deprivation of a constitutionally-

protected liberty or property interest; (2) state action; and (3) constitutionally-

inadequate process.” Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003)

(citing Cryder v. Oxendine, 24 F.3d 175, 177 (11th Cir. 1994)). Plaintiffs have not

satisfied the first or third elements of this test.

“Generally, a public employee has a property interest in continued

employment if state or local ordinance in any way limits the power of the appointing

body to dismiss an employee.” Ross v. Clayton County, 173 F.3d 1305, 1307 (11th

Cir. 1999) (internal quotations omitted). Independent from limitations on the power

to dismiss, “probationary employees [nevertheless] are thought to lack property

interests in their employment because they are ‘at will’ employees without a

legitimate claim of entitlement to continued employment.” Id. at 1308. Under some

circumstances, however, a probationary employee “may nevertheless enjoy a

property interest in their employment.” Id. To determine whether an employee has

such a property interest, the court must look at the relevant state and local rules “in

their entirety.” Blanton v. Griel Mem’l Psych. Hosp., 758 F.2d 1540, 1543 (11th Cir.

1985) (“The section governing probationary employees was clearly designed to offer

a lesser expectation of continued employment than that offered to permanent

employees.”).

Here, the Enabling Act established the Personnel Board and charged it with

establishing rules and regulations necessary for “governing examination,

appointments, suspensions, dismissals, . . . , [p]romotions, [d]emotions, [t]ransfers,

salary adjustments and ‘any and all other rules and regulations necessary for

administering a scientific and economical’ personnel system.” Doc. 42-1 at 85.

Under the resulting regulations, an employee must complete a 12-month

probationary period after a promotion. Doc. 42-1 at 4, 120–21. During this

probationary period, an employee “may be returned to his or her last held class if the

position is still vacant and agreed upon by the Appointing Authority over the

formerly held Class.” Doc. 42-1 at 121. And the regulations do not grant a right to

appeal this decision. Doc. 42-1 as 121.

It is undisputed that all of the plaintiffs remained in this probationary period

at the time Pettway decided to return them to their previous positions. As the

Appointing Authority,3 Pettway had the discretion to place Plaintiffs in their

previous positions as long as their previous positions remained vacant. Doc. 42-1 at

121. There is no evidence in the record that the positions were not vacant. In fact,

the evidence establishes the opposite; each of the plaintiffs’ former positions either

remained vacant throughout the relevant period or became vacant when the roll

backs took effect. See Doc. 39-1 at 7, 20–21. For this reason, Plaintiffs did not have

a property interest in their recent appointments. See Ross, 173 F.3d at 1308; Blanton,

758 F.2d at 1543–44. With no property interest, their § 1983 claims cannot survive

3 Plaintiffs argue that Mike Hale, the former Sheriff, somehow remained the Appointing Authority

after he lost the election and left office. Doc. 45 at 2, 10; Doc. 46 at 2, 9–10. The Rules and

Regulations define “Appointing Authority” to mean “[a]ny person, officer, board, council,

commission or other governmental body whose lawful jurisdiction or powers are confined wholly

or primarily within the territorial limits of Jefferson County and who or which possess final power

to appoint persons to services, jobs, offices, or positions, the compensation of which is paid in

whole or in part from the public funds of Jefferson County or from the public funds of a

municipality in Jefferson County subject to this Act.” Doc. 42-1 at 86–87. Hale’s “final power”

to appoint employees passed to Pettway when Pettway assumed the office of Sheriff of Jefferson

County.

summary judgment.

Moreover, even if Plaintiffs had a property interest in their recent

appointments, their procedural due process claims still would fail. A procedural due

process violation does not occur unless the government fails to provide an adequate

remedy. See McKinney, 20 F.3d at 1564–65. Here, Plaintiffs filed a grievance under

Rule 15, proceeded through each step of the grievance process, and received a

hearing before the Personnel Board.4 Plaintiffs thereby received constitutionally

adequate process.5 See Reams v. Irvin, 561 F.3d 1258, 1263 (11th Cir. 2009) (“The

fundamental requirement of due process is the opportunity to be heard ‘at a

meaningful time and in a meaningful manner.’”) (quoting Mathews v. Eldridge, 424

U.S. 319, 333 (1976)).

In sum, Plaintiffs’ claims for violations of their procedural due process rights

fail because they had no property interest in their new positions and because they

had adequate state remedies. For these reasons, summary judgment is due to be

granted in favor of the Personnel Board and Pettway.6

4 All but Hale were represented by counsel at the hearing. Doc. 42-1 at 73.

5 Plaintiffs do not advance any meaningful argument that the process was constitutionally

inadequate. Instead, they contend that they were not provided a hearing to determine whether

cause existed for their demotions. Doc. 45 at 10; Doc. 46 at 10. But Plaintiffs did not file a

grievance under Rule 12, and the Rules and Regulations prohibit a Rule 12 grievance for

probationary employees. Doc. 42-1 at 121. Plaintiffs cannot now complain that they did not

receive process under a rule they did not, and could not, invoke.

6 Because the court finds no constitutional violation, it does not address Pettway’s argument that

he is entitled to qualified immunity.

HI. CONCLUSION

For these reasons, it is ORDERED as follows:

1. The motion to strike McAnally’s affidavit is GRANTED.

2. Pettway’s Motion for Summary Judgment (Doc. 39) is GRANTED; and

3. The Personnel Board of Jefferson County’s Motion for Summary

Judgment (Doc. 41) is GRANTED.

A final order will be entered.

DONE and ORDERED on April 28, 2022.

OF xn

GRAY M.BORDEN

UNITED STATES MAGISTRATE JUDGE

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