# Thompson v. Pettway

> District Court, N.D. Alabama · April 28, 2022

URL: https://www.frixlaw.com/law-library/cases/9991081

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** April 28, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9991081

## How later opinions describe it (automated extraction)

- stating that “[t]he district court may impose other appropriate sanctions in addition to or in lieu of the evidentiary exclusion”

## Opinion text

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

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9991081. Public record. Not legal advice.