Smith v. City of Pelham

• Court: U.S. District Court — Northern District of Alabama
• Writing for the Court: ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE
• Decision Date: 11 January 2019
• Docket Number: 2:17-cv-01320-ACA
• Citation: Smith v. City of Pelham, 2:17-cv-01320-ACA (N.D. Ala. Jan 11, 2019)
• Parties: JENNIFER SMITH, Plaintiff, v. CITY OF PELHAM, et al., Defendants.

JENNIFER SMITH, Plaintiff, v. CITY OF PELHAM, et al., Defendants.

2:17-cv-01320-ACA

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

January 11, 2019

MEMORANDUM OPINION AND ORDER

This matter comes before the court on Defendants City of Pelham and Larry Palmer's motion to dismiss and/or motion for partial summary judgment on Counts Three, Four, and Five of the second amended complaint (doc. 60), and Mr. Palmer's motion to dismiss Counts Three, Four, and Five of the second amended complaint (doc. 62).

Plaintiff Jennifer Smith was a city employee working in the Pelham Police Department. Mr. Palmer, the Chief of Police, ordered a warrantless search of her work computer. Unbeknownst to Ms. Smith, her work computer contained backup copies of her personal cell phone and, based at least in part on photographs found on those backups, Mr. Palmer suspended and later terminated Ms. Smith's employment. Ms. Smith filed suit, asserting various claims against both Mr. Palmer and the City of Pelham. Of relevance to these motions, she claims that Defendants (1) subjected her to an unconstitutional search of her personal cellphone, in violation of the Fourth Amendment ("Count Three"); (2) deprived her of due process, in violation of the Fourteenth Amendment ("Count Four"); and (3) invaded her privacy, in violation of Alabama law ("Count Five"). (Doc. 59 at - 63). Defendants do not seek dismissal of or summary judgment on Counts One and Two, so the court will not discuss those claims.

Because Ms. Smith lacked an objectively reasonable expectation of privacy in the backup copies of her cell phone, the court GRANTS summary judgment in favor of Defendants and against Ms. Smith on Count Three. Because Defendants provided Ms. Smith with all the process she was due during her appeal of her termination, the court GRANTS summary judgment in favor of Defendants and against Ms. Smith on Count Four. And because Defendants obtained only information that they properly accessed through Ms. Smith's work computer, the court GRANTS summary judgment in favor of Defendants and against Ms. Smith on Count Five.

I. BACKGROUND

A motion to dismiss constrains the court to consider, with limited exceptions, only the allegations made in the complaint, Butler v. Sheriff of Palm Beach Cty., 685 F.3d 1261, 1265 (11th Cir. 2012), but a motion for summary judgment requires the court to consider evidence submitted by the parties, seeHamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012). Setting out the facts in this case is complicated because the City of Pelham and Mr. Palmer moved both to dismiss and for summary judgment on Counts Three, Four, and Five. (Doc. 60). At the same time, Mr. Palmer also filed a separate motion to dismiss, asserting that he is entitled to qualified immunity from Counts Three and Four, and state agent immunity from Count Five. (Doc. 62). Although the court set out two separate briefing schedules (docs. 64, 65), Ms. Smith responded to both motions in one filing, adopting and incorporating by reference evidence that she had submitted to the court during an earlier round of motions practice. (Doc. 67).

For the sake of simplicity, and because the court concludes that it can resolve the claims against both defendants based on the joint motion for summary judgment, the court will use the summary judgment standard. Accordingly, the court draws its description of the facts from the evidence, drawing all inferences and reviewing all evidence in the light most favorable to Ms. Smith. See Hamilton, 680 F.3d at 1318.

The City of Pelham is a governmental municipal corporation in Shelby County, Alabama. (Doc. 59 at 40 ¶ 207). From November 2003 until October 2015, Ms. Smith was the Executive Administrative Assistant to the Chief of Police of the City of Pelham, a position that made her a permanent employee in the Cityof Pelham's classified service. (Id. at 4 ¶ 14, 40 ¶ 209, 51 ¶ 259, 53 ¶ 269). Mr. Palmer became the Chief of Police in March 2015. (Doc. 13-1 at 2).

The City of Pelham has a "Civil Service Law Handbook," which sets out "provisions with respect to appointment, career development, removal, discipline, and related conditions of employment in the classified service." (Doc. 13-7 at 1, 3). The Handbook provides that the Chief of Police is a Department Head and, as such, an "appointing authority." (Id. at 8-9). Under the policies set out in the Handbook, an appointing authority may dismiss, demote, or suspend an employee within the classified service "for cause or for any reason deemed to be in the best interest of the public service." (Id. at 43). Either before or on the date of the dismissal, the appointing authority must give the employee written notice of dismissal, including "[t]he cause of action," the effective date of the dismissal, and "[a]ny other information deemed appropriate."¹ (Id. at 44).

A permanent employee may appeal a dismissal or suspension to the Personnel Board (doc. 13-7 at 45), which is tasked with reviewing, approving, disapproving, or modifying administrative actions (id. at 15). On receipt of an appeal, the Board must hold a public hearing to determine whether the employee should be retained "or should be removed or otherwise disciplined." (Id. at 45).

In addition to the Handbook, the City of Pelham has a "Social Networking Policy," which sets out guidelines for public employees' use of social networking websites (doc. 13-3 at 2-3), and a "Computer/Email & Internet Use Policy" (the "Computer Policy"), which governs employees' use of the City's computer systems (doc. 13-5 at 2-4). The Computer Policy provides in relevant part:

All software, programs, applications, templates, data and data files residing on computer systems or storage media or developed on the city's systems are property of the City of Pelham . . . . The City of Pelham, therefore, may access, copy, change, alter, modify, destroy, delete or erase this property.

(Doc. 13-5 at 2-3).

From as early as 2007, Ms. Smith and Mr. Palmer clashed. (Doc. 59 at 5-6; Doc. 37-1 at 6-7). Ms. Smith filed complaints against Mr. Palmer before he became the Chief of Police in March 2015. (Doc. 37-3 at 17-18). For his part, Mr. Palmer attested that shortly after he became the Chief of Police, he began to suspect that Ms. Smith was performing work for her secondary employer while on the clock at the Police Department and that she was misusing her sick and leave time. (Doc. 13-1 at 2-3). He also asserts that he received complaints about Ms. Smith's activity on Facebook. (Id. at 3-4). As a result, he states, on an undisclosed date, he ordered an investigation into Ms. Smith's use of social networking sites and leave time. (Id. at 4).

Around the same time, Mr. Palmer denied one of Ms. Smith's requests to use her compensation time. (Doc. 37-1 at 3). Based on that denial, on September 2, 2015, she filed with the City of Pelham Human Resources Department a complaint of sex discrimination against Mr. Palmer. (Id.). Mr. Palmer received notification of the complaint on the same day. (Id.).

Eight days later, on September 10, 2015, Mr. Palmer ordered Detective Patrick McGill to review Ms. Smith's work computer. (Doc. 13-1 at 5; Doc. 37-3 at 20). Two dayslater, Detective McGill imaged her computer and found backup copies of Ms. Smith's personal cell phone. (Doc. 37-3 at 20-21). Those backup copies contained nude photographs of Ms. Smith and other people. (Id. at 21). Detective McGill testified that the only way the computer could have backed up Ms. Smith's cell phone was if she had plugged her phone into her computer. (Id. at 21-22). Ms. Smith later testified that she had connected her cell phone to her computer for work purposes, but she had not known that the computer would make backup copies of her phone. (Doc. 37-3 at 29-31, 113; see also Doc. 59 at 44 ¶ 228). The backup copies were accessible to anyone on the City network with administrator privileges. (Doc. 37-3 at 131-33).

On September 24, 2018, Mr. Palmer met with Ms. Smith and Human Resources Director Janis Parks. (Doc. 37-1 at 5). At the meeting, he informed Ms. Smith that he was placing her on administrative leave with pay pendingcompletion of an internal investigation. (Id.; Doc. 13-1 at 6). On October 1, 2015, Mr. Palmer held another meeting with Ms. Smith and Ms. Parks. (Doc. 37-1 at 5; Doc. 13-1 at 6). At that meeting, he offered her the opportunity to resign and "not face these circumstances," but she apparently declined to resign. (See Doc. 37-3 at 14). As a result, Mr. Palmer "verbally terminated [her] from the City of Pelham Police Department effective that day, October 1, 2015, for violation of the Internet policy and conduct unbecoming of an employee." (Doc. 37-1 at 5-6). Mr. Palmer did not give her any other information about the reasons for her termination.² (Id. at 6).

At some point after the meeting, Mr. Palmer drafted a Disciplinary Action Notification identifying the reasons for termination, which he dated October 1, 2015. (Doc. 13-1 at 7; Doc. 13-6 at 2). The Notification states that Mr. Palmer recommended and approved the recommendation to dismiss Ms. Smith for conduct unbecoming an employee in the public service and violation of the Social Networking and Computer Policies. (Doc. 13-6 at 2-3). The Notification includes a handwritten note by Mr. Palmer that the "[f]orm was completed after an initial meeting with [Ms. Smith]." (Id. at 3). Although Mr. Palmer signed the form, Ms. Smith did not. (Id.).

The parties have not pointed to evidence in the record establishing when Mr. Palmer or the City gave Ms. Smith a copy of the Notification, but according to her second amended complaint, she did not receive the Notification until October 15, 2015, after she filed an appeal of her termination. (Doc. 59 at 54 ¶ 273). Before the hearing, Ms. Smith requested copies of her personnel file and all documents relating to her termination, but Human Resources...