Harper v. Winston County

• Decision Date: 23 April 2004
• Citation: 892 So.2d 346
• Parties: Sherry HARPER v. WINSTON COUNTY and Sandra Wright.
• Court: Alabama Supreme Court

892 So.2d 346

Sherry HARPER v. WINSTON COUNTY and Sandra Wright.

1021433.

Supreme Court of Alabama.

April 23, 2004.

Russell B. Robertson of Laird & Robertson, P.C., Jasper, for appellant.

Robbie Alexander Hyde of Webb & Eley, P.C., Montgomery; and Hobson Manasco, Jr., Haleyville, for appellee Winston County.

Jeffery A. Mobley of Lowe, Mobley & Lowe, Haleyville, for appellee Sandra Wright.

SEE, Justice.

Sherry Harper, the plaintiff in the underlying action, appeals from a summary judgment in favor of Winston County and Sandra Wright, the defendants below. We affirm the trial court's judgment as to Winston County and we reverse the judgment as to Wright.

Facts and Procedural History

Harper was employed by the Winston County Department of Revenue. Sandra Wright, the revenue commissioner of Winston County, was her supervisor. According to Harper, on March 16, 2000, Wright threatened Harper with termination of her employment because Harper was supporting Roger Hayes, the incumbent chairman of the Winston County Commission, for reelection to that position. Harper states that Wright told her that Wright, "and not Commission [] Chairman Hayes, was the only person who could fire Harper, and that she would `get' Harper if Harper voted for Roger Hayes." (Harper's brief p. 10.)

In late April 2000, Wright held a meeting of Department of Revenue employees to discuss tardiness and the need for employees to report to work promptly at 8:00 a.m. so that they would be available to assist customers at that time. Harper states that, on May 9, 2000, she reported to work at 8:03 a.m., and that Wright spoke to her about her tardiness.¹ Harper claims that during that conversation Wright "jumped up and was waving her hands in the air," and that Harper responded, telling Wright that, in light of the fact that other employees had been tardy, she believed Wright was treating her differently because of her support of Hayes. The conversation began to get heated, and Wright stated, "Sherry come to the back," indicating that Wright wanted Harper to go to Wright's office. Harper later testified at her post-termination hearing that when she refused to go with Wright, Wright "reached — jerked for [her] — jerked [her] arm and tried to pull [her] back." Harper admits that when she continued to resist going to Wright's office, Wright let go of her arm. The next day, May 10, 2000, Wright attempted to have a private meeting with Harper. Harper refused to attend the meeting without a witness present, because, she says, of Wright's previous threat to "get" Harper and because of the incident that had occurred the day before. On May 10, 2000, Wright terminated Harper's employment with the Department of Revenue, and she wrote the Winston County Commission to advise it that her termination of Harper's employment was effective that day.

Harper had filed on May 9, 2000, a complaint with the Winston County Commission claiming, among other things, that Wright had "repeatedly threatened [her] with termination of [her] job due to [her] political preference" and that Wright had "grabbed [her] arm and tried to force [her] to go with" Wright. On May 10, 2000, Harper received a written notice stating the reasons for her dismissal. After her termination, Harper received a notice that a "post-termination hearing" would be conducted before a hearing officer appointed by the Winston County Commission. The hearing was held on June 13, 2000.

On January 30, 2001, Harper sued Winston County and Wright, alleging that the termination of her employment was in retaliation for her exercising her First Amendment right to free speech, that the County had denied her due process of law in terminating her employment, that the County had breached her employment contract, and that Wright had committed an assault and battery against her. Because the complaint presented a federal question, the case was removed to the United States District Court for the Northern District of Alabama pursuant to 28 U.S.C. § 1441(c). The district court entered a summary judgment in favor of Winston County and Wright as to Harper's federal free-speech and due-process claims, declined to exercise supplemental jurisdiction over Harper's remaining state-law claims, and remanded the case to the Winston Circuit Court for consideration of the state-law claims.

On March 26, 2002, Winston County moved the trial court to dismiss, or, in the alternative, for a summary judgment as to the state-law claims against it. On June 12, 2002, Harper amended her complaint as to her breach-of-contract claim. On June 27, 2002, Winston County readopted its motion to dismiss or for a summary judgment. Wright filed her "Motion to Dismiss/Answer" on July 3, 2002, and on August 1, 2002, she filed a "Motion to Dismiss/Alternative Motion for Summary Judgment." After a hearing, the trial court² entered a summary judgment in favor of Winston County and Wright. Harper appeals the trial court's judgment as to her state-law breach-of-contract and assault-and-battery claims.

Standard of Review

When reviewing a trial court's summary judgment, this Court must determine whether there were any genuine issues of material fact and whether the movant was entitled to a judgment as a matter of law. See Ex parte Atmore Cmty. Hosp., 719 So.2d 1190, 1193 (Ala.1998). The movant has the initial burden of making a prima facie showing that there is no genuine issue of material fact; if the movant makes that showing, the burden then shifts to the nonmovant to present substantial evidence of each element of the claim challenged by the movant. Id. Substantial evidence is "`evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.'" Lolley v. Charter Woods Hosp., Inc., 572 So.2d 1223, 1224 (Ala.1990)(quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).

Harper's Breach-of-Contract Claim Against Winston County

Harper argues that the employee handbook for employees of Winston County constitutes a valid and enforceable employment contract and that in terminating her employment Winston County breached that contract. She argues that Winston County (1) terminated her for a reason other than those enumerated in the employee handbook as justifying dismissal and (2) terminated her without allowing her an opportunity to respond to the charges against her, in violation of the provisions of the handbook.

Harper argues that the County terminated her employment for refusing to participate in a private meeting with Wright and for supporting a candidate for county commission whom Wright did not support — reasons she states are not enumerated in the handbook as reasons justifying an employee's dismissal for "the good of the County service." The pertinent section of the employee handbook reads:

"7. DISMISSALS — Any employee may be dismissed for the good of the County service. Reason(s) for dismissal may include, but shall not be limited to:

"(a) Incompetency or inefficiency in the performance of duties;

"(b) Conviction of a criminal offense or of a misdemeanor involving moral turpitude;

"(c) Violation of any lawful and reasonable regulation, order or direction made or given by a supervisor, or insubordination that constitutes a serious breach of discipline;

"(d) Intoxication or drinking of intoxicating beverages while on duty, or being under the influence of an illegal drug or narcotic while on duty;

"(e) Theft, destruction, carelessness, or negligence in the use of the property of the County;

"(f) Abusive personal conduct or language toward the public or toward fellow employees, or abusive public criticism of a superior or other County Official(s).

"(g) Unauthorized absences or abuse of leave privileges;

"(h) Incapacity for proper performance of duties because of a permanent or chronic physical or mental defect;

"(i) Acceptance of any valuable consideration which was given to influence the employee in the performance of his duties;

"(j) Falsification of records or use of official position for personal advantage;

"(k) Loss of driver's license and driving privileges by due process of law when the employee's position makes the operation of a motor vehicle necessary in the performance of his duties;

"(l) Violation of any duly adopted Winston County personnel policy or State or Federal law or regulation governing public employment.

"Dismissals require department head action and concurrence of the Appointing Authority:

"a. The employee may be furnished a written notice of the proposed dismissal, the reason(s) for it, and his right to answer the charges orally or in writing.

"b. If the employee fails to respond to the notice, the proposed dismissal shall be effective on the date specified."

(Emphasis added.) The County argues that Wright and the employees of the Department of Revenue are unclassified employees — "[s]alaried employees who serve at the pleasure of elected officials" — and are therefore not covered by the employee handbook. The County further argues that it terminated Harper's employment for, among other things, insubordination, and that Harper violated several subsections in the handbook, including subsections (a), (c), (g), and (l), relating to incompetency and inefficiency; violation of directions given by a supervisor or insubordination; unauthorized absences; and violation of the personnel policy. The County further notes that the handbook provides that those are not the only reasons for which an employee may be dismissed. The County argues that Harper, however, admits to violating some of the provisions of the handbook. Finally, the County argues that Harper "attempts to impute to Wright nefarious motives" for terminating her; however, the County states that even if Wright did have such motives for terminating Harper, Harper still cannot prove that the County breached the provisions of the handbook.

...