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Todd v. Kelley3/10/2000
allenged employment decision. Mount Healthy City School District Board of Educ. v. Doyle, 429 U.S. 274, 287 (1977). The burden then shifts to the defendant to show `by a preponderance of the evidence that it would have reached the same decision ... in the absence of the protected activity.' Id. These last two issues are fact questions. Id." 590 So. 2d at 201. See also Smith v. State Dep't of Public Safety, 716 So. 2d 693 (Ala. Civ. App. 1998).
The City does not argue that Todd's speech was not on a matter of public concern; we hold that, as a matter of law, it was. Compare Roberts v. Joiner, 590 So. 2d at 201 (holding that police officers who reported town council members for using the town's discount to buy automobile tires for their personal use were speaking on a matter of public concern). The City also does not argue that Todd's interest in reporting official misconduct by the mayor and Sgt. Fields was outweighed by the City's interest in efficient public service; we hold that it was not. Id. at 202.
The City's arguments on Todd's free-speech claim are directed to the last two parts of the four-part test established in Rankin and Doyle and restated by the Alabama Supreme Court in Roberts v. Joiner. The last two parts, as the court pointed out, raise fact questions. Todd clearly presented substantial evidence indicating that his reports of misconduct were a motivating factor in the decision to terminate him. The City presented evidence, consisting of citizen complaints and fellow-officer complaints against Officer Todd, indicating that it would have fired Todd in the absence of his reports of misconduct by the mayor and Sgt. Fields. We have not detailed the substance of those complaints because they are relevant only to rebut Todd's claim that his First Amendment rights were violated, and the question whether those rights were violated is one of fact. Whether the City would have made the same decision in the absence of Todd's reports is a question a jury will have to decide.
V. The Due-Process Claim
Todd argues that he was denied procedural due process because he was not given a pretermination hearing, or notice and an opportunity to be heard, before being discharged.
Because Todd was a merit employee and therefore could be dismissed only for cause, he had a property right in continued employment with the City. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985); Board of Regents v. Roth, 408 U.S. 564, 576-78 (1972). Thus, the City could not deprive him of this right without constitutionally adequate proceedings, or due process. Loudermill, 470 U.S. at 541. Due process for a tenured public employee requires a pretermination opportunity to respond to the employer 's charges, coupled with adequate post-termination administrative procedures. Id. at 547- 48. Although the pretermination hearing "need not be elaborate," id. at 545, due process mandates "`some kind of a hearing' prior to the discharge of an employee who has a constitutionally protected property interest in his employment." Id. at 542 (quoting Board of Regents v. Roth, 408 U.S. at 569-70).
It is undisputed that Todd was terminated without a prior hearing. Todd was not even provided with advance notice that he would be terminated. He was simply called into the mayor's office and given "two minutes to decide" whether to resign or be fired. When he inquired as to the reasons for his discharge, the mayor told him to "look in his personnel file."
Although the City has a grievance procedure (a mechanism we described in some detail in Part II of this opinion), that procedure is triggered only after the adverse employment decision -- in this case, termination
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