Forte v. City of Montgomery, Case No. 2:17-CV-601-ALB
| Citation | 420 F.Supp.3d 1239 |
| Decision Date | 27 September 2019 |
| Docket Number | Case No. 2:17-CV-601-ALB |
| Parties | Dontez FORTE, Plaintiff, v. CITY OF MONTGOMERY, et al., Defendants. |
| Court | United States District Courts. 11th Circuit. Middle District of Alabama |
James Bernard Brannan, Jr., The Brannan Law Firm, PC, Montgomery, AL, for Plaintiff.
Christopher Ryan East, City of Montgomery Legal Dept., Stacy Lott Reed, City Attorney's Office, Montgomery, AL, for Defendants.
Plaintiff Dontez Forte ("Forte") filed a three-count complaint alleging that Defendants City of Montgomery ("Montgomery") and D.J. Dick ("Dick") defamed him and violated his federal Fourteenth Amendment rights to equal protection of the laws and procedural due process when they terminated him against the weight of the evidence.
There are three counts at issue.1 Count 2 alleges that Dick defamed Plaintiff by way of both libel and slander, including an allegation of per se defamation. (Doc 1-1 ¶¶21-23). Count 3 realleges that Plaintiff was defamed and requests that the Court enjoin the City of Montgomery from publishing in any way the information it relied upon in firing him. (Doc. 1-1 ¶¶24-26). Count 4 alleges both that the process of Plaintiff's termination violated his procedural due process rights and further that he was denied equal protection of the laws because, although another member of the fire department had allegedly lied, no discipline had occurred in that instance. (Doc. 1-1 ¶¶27-30). This matter comes before the Court on Defendants' motion for summary judgement on all three counts. (Doc. 15). Upon consideration, the motion is GRANTED as to all counts.
Summary judgment is proper "if there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). See also Fed. R. Civ. P. 56(a). The party asking for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion," relying on submissions "which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323, 106 S.Ct. 2548. Once the moving party has met its burden, the nonmoving party must "go beyond the pleadings" and show that there is a genuine issue for trial. Id. at 324, 106 S.Ct. 2548. Both the party "asserting that a fact cannot be," and a party asserting that a fact is genuinely disputed, must support their assertions by "citing to particular parts of materials in the record," or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56 (c)(1)(A),(B).
To avoid summary judgment, the nonmoving party "must do more than show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). On the other hand, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The Montgomery City Fire Department has a practice of offering infrequent, optional exams which can be taken by those firefighters who are Sergeants and wish to become Lieutenants. On August 11, 2015, J.L. Petrey, the Chief of Staff of the Montgomery Fire Department emailed a memo to all fire rescue personnel advising them that fourteen Sergeants, including Forte, were candidates for the rank of Lieutenant and were scheduled to test for the rank on August 19th at 7:45 AM. However, Forte's shift on that day ended at 8 AM. Therefore, Forte discussed in advance with his superior officer, Lieutenant Dick, his need to leave early. Forte and Dick had this conversation on the 18th and both knew that any delay in Forte's arrival the next morning would result in his disqualification from contention.
On the 19th, at 7:20 AM, District Fire Chief Hackett authorized Dick to let Forte leave for the test. Despite this, Forte claims that Dick didn't relieve him until 7:45 AM and he ended up arriving at the test location at approximately 7:53 AM. As he was late, the proctor would not let him take the test. Forte told the proctor that he had tried to leave in order to get there on time, but his superiors at the station refused to authorize his absence until 7:45 AM. The fire department hierarchs called around the horn in order to determine whether Forte's supervisors had prevented him from leaving until 7:45 for a 7:45 test. These same men testified that such prevention would lead to strict discipline. The fire department brass concluded that Forte had lied about his supervisors refusal to let him out until 7:45 and, due to a fire department regulation prohibiting lying, recommended to the Mayor that he be fired. Forte was terminated on December 5th and the Montgomery City-County Personnel Board upheld his termination.
Plaintiff's argument on all the relevant counts in the complaint can be summarized as follows: the decision of the Board to fire Forte was arbitrary, capricious, and against substantial evidence and Forte was defamed during and after the proceedings. The central assertion supporting these allegations is that Dick lied when he told Chief Boeling that he relieved Forte around 7:20. Plaintiff's only support for this assertion is evidence that Dick mistakenly thought that the test started at 8 AM.2 (Document 21 at 2-3). This is Plaintiff's purported smoking gun. Even though Dick said he relieved Forte at around 7:20 AM, Plaintiff argues that Forte's recollection of being relieved at 7:45 is more believable because Dick believed the test started at 8 AM. Id. After all, Plaintiff argues, if it only takes 10 minutes to drive to the testing center, why would Dick have dismissed his subordinate 30 minutes earlier than necessary? Unfortunately, this piece of circumstantial evidence on its own is not enough to allow Plaintiff to succeed on any of his claims.
Plaintiff points to the transcript of his post-termination hearing before the Personnel Board and argues that it is effectively illegal for his superiors to disagree with his version of events. To wit, Plaintiff states that, "Defendant Lt. Dick defamed the Plaintiff ... He made false defamatory statements to another concerning the Plaintiff that the Plaintiff was not truthful." (Document 21 at 7). But neither common-law defamation nor the Fourteenth Amendment protects an employee against the consequences of his boss's opinion, especially when it is announced in a judicial or quasi-judicial proceeding. For the following reasons, Plaintiff's claims fail.
Defendants erroneously argue that this Court is precluded from coming to any determination as to the merits of Plaintiff's claims as a result of the Rooker - Feldman Doctrine. The Supreme Court of the United States has held that federal courts other than the Supreme Court may not function as a reserve appeal system for final state court judgments that litigants are unhappy with. D.C. Court of Appeals v. Feldman , 460 U.S. 462, 476, 103 S. Ct. 1303, 1311, 75 L.Ed.2d 206 (1983). This is called the Rooker - Feldman Doctrine. Although ordinarily the Doctrine also prevents federal courts from hearing new claims that are inextricably intertwined with the original ones, in the Eleventh Circuit, the case may still be heard if the plaintiff is seeking to litigate a federal claim that he could not raise in state proceedings. Powell v. Powell , 80 F.3d 464, 466 (11th Cir. 1996).
Unfortunately for Defendants, Plaintiff's only proceedings thus far have been before the Montgomery City-County Personnel Board, which, while competent to hear his appeal regarding employment, has no authority to hear defamation claims or those arising under the U.S. Constitution. The Rooker - Feldman doctrine does not help Defendants.
Plaintiff's defamation claim fails. The elements of a cause of action for defamation in Alabama are: 1) a false and defamatory statement concerning the plaintiff, 2) an unprivileged communication of that statement to a third party, 3) fault amounting at least to negligence on the part of the defendant, and 4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication of the statement. Wal-Mart Stores, Inc. v. Smitherman , 872 So. 2d 833, 840 (Ala. 2003).
Plaintiff has not plead enough facts to support a plausible scenario where the statements made by Dick were not privileged. In Alabama, absolute privilege attaches to all hearings that are judicial, legislative, or quasi-judicial in nature. Webster v. Byrd , 494 So. 2d 31, 34 (Ala. 1986). In fact, the Alabama Supreme Court has specifically held that, with respect to local Personnel Board proceedings, communications made to individuals with an official interest in the termination of the plaintiff are absolutely privileged. Barnett v. Mobile Cty. Pers. Bd. , 536 So. 2d 46, 51 (Ala. 1988). The guiding star of this area of Alabamian jurisprudence is whether the "communication is prompted by duty owed either to the public or to a third party ... [and whether it is] made in good faith and without actual malice." Berry v. City of New York Ins. Co. , 210 Ala. 369, 371, 98 So. 290, 292 (1923).
With respect to publication by the Board itself, this immunity applies even when there are "retaliatory, arbitrary, and capricious actions by officials when those actions are related to the filing and adjudication of disciplinary complaints those officials are charged with administering." D.A.R. v. R.E.L. , 272 So. 3d 1030, 1041 (Ala. 2018). As for Dick, he was making his...
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