Todd v. Kelley

• Decision Date: 10 March 2000
• Parties: Norman TODD v. Al KELLEY, Mayor of the City of Millbrook, et al.
• Court: Alabama Court of Civil Appeals

783 So.2d 31

Norman TODD v. Al KELLEY, Mayor of the City of Millbrook, et al.

2981142.

Court of Civil Appeals of Alabama.

March 10, 2000.

Rehearing Denied April 28, 2000.

Certiorari Denied October 13, 2000.

Donald G. Madison, Montgomery, for appellant.

Alex L. Holtsford, Jr., and Rick A. Howard of Nix, Holtsford & Vercelli, P.C., Montgomery, for appellees.

Alabama Supreme Court 1991536.

CRAWLEY, Judge.

In 1997, Norman Todd was dismissed from his employment as a police officer for the City of Millbrook. In 1998, Todd sued the City; Al Kelley in his official capacity as the mayor; Capt. Kenneth Bradley in his official capacity as the chief of police; and Sgt. Ron Fields in his official capacity as Todd's supervisor. Todd alleged that the defendants had deprived him of property without due process of law, in violation of the Fourteenth Amendment to the United States Constitution, and had violated his right to freedom of speech guaranteed by the First Amendment to the United States Constitution. He claimed that the defendants were, therefore, liable for damages pursuant to 42 U.S.C. § 1983. Todd also alleged a state-law claim of wrongful discharge, asserting that the defendants had maliciously, willfully, and wantonly caused him to be terminated from his employment in retaliation for his reporting misconduct by Sgt. Fields and Mayor Kelley.

The trial court entered a summary judgment in favor of all defendants on all claims, and Todd appealed to the Alabama Supreme Court. The supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Norman Todd worked for the City of Millbrook as a police officer from the spring of 1996 until he was discharged on December 5, 1997. Sometime between February and April 1997, he reported to his supervisor and to Chief of Police Kenneth Bradley several instances of misconduct by Millbrook Mayor Al Kelley. Todd reported that he had seen the mayor driving under the influence of alcohol. Todd also recounted that the mayor had radioed Todd in his patrol car and had requested that he be picked up from a certain location and taken to his residence because he (the mayor) had been drinking alcoholic beverages and did not want to drive home. On one occasion, Todd said, he took the mayor home and the mayor refused to get out of the patrol car, saying that he "couldn't go in yet" or that he "needed to ride around [with Todd] for a while." Todd said that on that occasion he continued his patrol duties, with the mayor in the patrol car.

It is undisputed that Mayor Kelley knew of Todd's report. Chief Bradley testified by deposition that he talked to the mayor about Todd's report and "advised [the mayor] that he could not be riding with us when he was drinking." When Bradley was asked whether the mayor admitted "that he had been drinking when he had been riding with [police officers]," he said the mayor replied, "A little bit."

Todd also reported to Chief Bradley two instances of misconduct by Sgt. Ron Fields: sleeping on the job and sexually harassing a victim. Chief Bradley testified that he spoke with Sgt. Fields about Todd's report that Fields had been sleeping on the job and Fields denied that he had been sleeping. As to the report of sexual harassment, Todd stated that on the morning of July 26, 1997, he, Sgt. Fields, and Officer Robbie Johnson responded to a domestic-disturbance call at a residence in Deatsville. When the officers arrived on the scene, an older man reported that his granddaughter, P.E., and her boyfriend had been fighting and that the boyfriend had run off into the woods. Todd stated that they apprehended the boyfriend, that Sgt. Fields and Officer Johnson stayed outside with the boyfriend, and that he (Todd) went inside to talk to the granddaughter, P.E. Todd said that P.E. was sitting on the bed in a back bedroom with her hands over her face and would not talk to him. He radioed Sgt. Fields to come inside and try to talk to P.E. When Sgt. Fields entered the room, he directed Todd to go back outside with Officer Johnson and the boyfriend. Todd remained outside for a few minutes and then reentered the residence to check on Sgt. Fields. Todd said that, when he entered the back bedroom where he had left Sgt. Fields and P.E., he saw Sgt. Fields tucking in his shirt, zipping up his trousers and repositioning his gun belt. Todd reported what he had seen to Chief Bradley. Bradley confirmed that Todd had reported the incident to him. He testified that, according to departmental policy, Todd was obligated to report any instance of what he thought was misconduct by a fellow officer. Bradley said that he talked to Sgt. Fields about Todd's report and that Fields denied any wrongdoing. Bradley also said that he talked with the mayor about the report, but he said he did not recall what the mayor said. Bradley testified that, although the mayor did not specifically ask him to take any further action to investigate the report, he (Bradley) asked a Lt. Evans to investigate the matter. Chief Bradley said that he also talked to Officer Robbie Johnson about Todd's report and that Officer Johnson stated that he was present and saw no misconduct by Sgt. Fields.

Bradley said two other police officers— P.K. Johnson and Herbie Cauthen—informed him that they had been present at the scene of the domestic-disturbance call and they also saw no improper conduct by Sgt. Fields. In deposition testimony, Officers P.K. Johnson and Herbie Cauthen said that they did not recall being present on the day in question and that they had never stated to anyone that they were present.

In deposition testimony, Officer Robbie Johnson, however, testified that Officer P.K. Johnson had responded to the domestic-disturbance call and that, although he could not be sure, he thought Officer Herbie Cauthen was there, too. Officer Robbie Johnson testified that he was in the room with P.E. the entire time that Todd and Fields were there and that he saw no inappropriate conduct by Sgt. Fields.

Sometime after Todd reported Sgt. Fields's alleged misconduct with P.E., Fields completed a performance evaluation of Todd. The evaluation gave Todd low marks and recommended that he not receive a pay raise. Todd filed a grievance, asked for a different evaluator, and was given another performance evaluation, this time by a Lt. Mayfield. Mayfield's evaluation, dated November 10, 1997, states:

"Officer Todd is an aggressive capable police officer. His recall and persistence is above average. I believe if he would focus on his job performance and block out others he would excel; don't worry about what others do or say, just worry about doing a good job. I recommend the normal step raise [be] given Officer Todd on his anniversary."

Two days later, Chief Bradley approved the pay increase and informed Todd that he had been recommended for a raise. Less than one month later, on December 4, 1997, P.E. filed a complaint against the city. The next day, December 5, 1997, the mayor fired Todd.

In deposition testimony, P.E. stated that during the domestic-disturbance call of July 26, 1997, Officer Todd came into the room where she was hiding from her boyfriend and tried to talk to her, but she would not respond. Then, she said, Sgt. Fields entered the room and Todd left. P.E. testified that Fields patted her shoulder and repeatedly asked her whether she was all right. She nodded but would not lift her face. She said Fields said, "[W]ell hold up your face and let me see." P.E. said she faced Fields and held out her arm, showing him where her boyfriend had hit her. She said she began to cry and that Sgt. Fields said to her, "You don't have to put up with this; you don't have to put up with this." Then, according to P.E., Sgt. Fields said, "Dog, my darn girdle is too tight."

P.E. said Fields then stood up, unbuttoned his shirt and pants and said, "Yep, you don't have to do this because you're a nice person; you can have somebody like me." P.E. continued: "As he was saying that, he was doing gestures with his hand picking up his crotch, and his pants were still unzipped and unbuttoned." P.E. testified that, at that moment, a screen door squeaked, she heard someone coming, and she saw Officer Todd. She said Sgt. Fields "was hurrying, trying to get [himself] back dressed completely." P.E. said that when Todd walked in he had a strange look on his face but said nothing.

P.E. testified that three police officers came to her grandfather's house that day: Todd, Fields, and an Officer Johnson, whose first name she did not know. She said Johnson was not in the room with her and Sgt. Fields. P.E. testified that she saw Sgt. Fields on two other occasions after the incident. On both occasions, she said, Fields threatened her, first saying "[I]f I lose my wife and daughter because of what you're doing, I will get you." The second time, she said, Fields said, "I can do something to you and they won't ever find out what happened to you. I know if I can't hurt you, I can hurt somebody close to you. I'll hurt [your sister]."

I. Amendment of the Complaint

Todd argues that the circuit court erred by denying his motion for leave to amend the complaint. Todd filed his complaint on July 6, 1998, suing the mayor, the chief of police, and Sgt. Fields in their official—but not in their individual—capacities. The case was first set for trial on April 12, 1999. On March 24, 1999, 18 days before the first trial setting, Todd moved to amend his complaint to add claims against the existing defendants in their individual capacities, to name three additional defendants, and to add a conspiracy claim pursuant to 42 U.S.C. § 1985. The circuit court denied the motion to amend, finding that Todd had not made "a showing of good cause for leave to amend."

Rule 15(a), Ala. R. Civ. P., provides, in pertinent part:

"Unless a court has ordered otherwise, a party may amend a pleading without leave of court, but subject to disallowance on

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