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Todd v. Kelley3/10/2000
-- occurs. Obviously, it does not qualify as a "pretermination opportunity to respond." The Personnel Rules outline a system of performance reviews by supervisors, coupled with personnel-record documentation of disciplinary actions against employees, but they contain no requirement that, before termination, an employee be given the opportunity to respond to the charges against him. We cannot escape the conclusion that Todd's discharge without a pretermination hearing violated his right to procedural due process. See Enterprise Fire Fighters' Ass'n v. Watson, 869 F. Supp. 1532 (M.D. Ala. 1994).
Citing Parratt v. Taylor, 451 U.S. 527 (1981), and Roberts v. Joiner, supra, the City argues that Todd was not denied due process because he was entitled to post-deprivation review of his termination. We disagree. When a plaintiff challenges the constitutional sufficiency of the termination-review system itself, as opposed to challenging the system as it was applied to him, then a violation of the plaintiff's procedural due-process rights is complete when he is terminated. See Enterprise Fire Fighters' Ass'n v. Watson, 869 F. Supp. at 1540-41. See also McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (en banc), cert. denied sub nom. McKinney v. Osceola County Bd. of County Comm'rs, 513 U.S. 1110 (1995).
"By its very nature, however, when the violation of due process is the failure [of the system] to provide a pretermination hearing, the violation cannot be cured subsequent to termination. The right is lost once termination has been effected. If the rule were otherwise, a public employee 's right to a pretermination hearing as explicated in Loudermill would be chimerical and ultimately meaningless because it could be `cured' in each instance simply by providing a hearing after termination. Moreover, the violation of due process is complete even if it later appears that the termination was substantively correct." Watson, 869 F. Supp. at 1541.
Parratt v. Taylor and Roberts v. Joiner do not apply, for the reasons stated by the United States District Court for the Middle District of Alabama in Watson:
"The defendants also rely upon a decision of the Alabama Supreme Court, Roberts v. Joiner, 590 So. 2d 195 (Ala. 1991), cert. denied, 504 U.S. 956 (1992), which is easily distinguished. First, the Court was reviewing a termination that occurred in 1983, prior to the Loudermill decision in 1985. Although the Court relied on Parratt, it acknowledged that with the Loudermill decision, `the United States Supreme Court's position on whether post-deprivation remedies sufficiently provide due process seems to have changed.' Id. at 198. The Roberts Court declined to apply Loudermill retroactively. Second, the plaintiffs in Roberts were challenging the actions of a city council, and not the personnel procedures of the town. Id. at 201." Watson, 869 F. Supp. at 1541 n.6.
Moreover, since Roberts v. Joiner was decided, our supreme court has indicated that Parratt is inapplicable to employment-termination cases. See Stallworth v. City of Evergreen, 680 So. 2d 229, 234-35 (Ala. 1996).
VI. Summary
That part of the circuit court's order denying Todd's motion for leave to amend his complaint to sue the existing defendants in their individual capacities and to add a conspiracy claim against the existing defendants is affirmed. That part of the circuit court's order denying Todd's motion for leave to amend his complaint to add three new defendants is reversed. The summary judgment is affirmed as to the state-law wrongful-discharge claim, but reversed as to the remaining claims against the existing defendants, and the cause is remanded for further proceedings.
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