from called an e r as people from there say albany she's a graduate of yale law school but it's been a decade now have she's worked hard and largely overcome that bent some time with two blue chip all from skadden arps and kilpatrick stockton and also was assistant united states attorney in the northern district georgia for four years off she's been on the share of the work resulting from our first case up line for first hale county commission mr kid  i'm sorry i did it sometimes i said there sometimes they said the other way i should've known from there but ms kidd welcome first it aired when it granted summary judgment for an langford as to a procedural due process claimed by finding as a matter of law that she had a property interest in her position as chief clerk it then compounded  yeah that's that is i think one of the major paghman unemployed you know we we say no where she completed the three month probationary period that you're not yet shown and the handbook looks clear to me that after a three month probationary period you're a prominent boy tell me why that's wrong we honor i think the handbook first of all it does use the term permanent employee of course and it also does we admit make references to due process on the other hand it also leaves discretion for you know why people are fired setting standards how they're fired good to the supervisors to management supervisory person now but even if the handbook couldn't make an employee the hell can employ normal cloyd was hard under its procedures a permanent employee with property interest in her job the key fact here is that ms langford as chief clerk of the probate court was not hired like any other employee she didn't apply the commission to invoke on her the former probate judge went to her one day and said hey you want to come be my chief clerk and that was pretty much that so your argument is she's really an at will employee is wrong yes you are and i hope that the all the idea that she was not hired through and he sort of formal procedures in the handbook she was personally chosen by judge avery due to their preexisting relationship what permanent employees and i mean employees to you know for positions to be advertised for employees to apply i will admit that the handbook is not a model of clarity certainly is it your client on a had a county attorney at the time other you know frankly issues with the handbook is that there's a provision in the disciplinary position that provides that somehow actions can only be taken with the agreement of the county engineer that's clearly meant to apply to road employees and they're sort of mid level supervisors but of course that's not well defined either i mean that's a large part of the problem here is that the handbook that was inherited by judge crawford because i think it's important to keep in mind at this point in time that you know he had only been and when all this came he had only been in office for a couple months i was a holdover from the previous administration when we're not  fault the question is whether or not there was a property interest created under alabama law was is there any evidence that the plaintiff was ever told that she was on probation no as a matter of fact the if she was lying for testified that the issue of her having due process only came up after judge avery lost the election that she became aware that she became had due process rights because all because property interest goes to reasonable expectation and the employee's understanding of why they can be fired i think in this particular case that is at least a genuine issue a material fact that yes it could go do it could be nothing it could just be a reminder but it could also be evidence and i think a reasonable jury could find that that was evidence that the whole property interest at the time she was terminated she did know that she had a right to at least be had it explained to her and she had a right to appeal it so whether or not she recognized it as a property interest a due process right she did know that there were procedures that should apply to her firing correct your honor i think that that's i think that that is one of the issues of disputed fact frankly we say that no we say that ther straight to the commission and asked the commission to overturn it which they refused to do and said look if you want you can do that and so then she went to the personnel appeals board which i think negates a possible inference that she actually thought that she she did have such the process right because she didn't follow well she may not learn the exact procedure but she knew she had some right gret you can see to you she had some right even if she thought she could appeal to the commission she knew she could appeal to someone about it yes she either she could ask somebody else to review judge com or she knew that she could or she simply wanted to act and i think that she knew when i say she knew she could i mean she knew she literally could go ask somebody that there was the commission it was a separate body whether she knew that she had a right to to do so in a in a more formal setting is it undisputed the she supervised other clerks  there is testimony both from from her or from judge crawford and at the summary judgment stage that she she is chief clerk first of all she did basically everything the probate judge did she was the only one who could help him in some his judicial duties but she was also in charge of the office that if the probate judge wasn't they are she in most it was a contested case acted as the probate judge she had full i mean she could you know sign on the basis now after the fact and after after the jury instructions in the verdict came back has been that she presented evidence of emotional distress related primarily to the lack of why did you object to the jury instructions you know so we didn't because frankly we we thought that the jury instructions were correct the jury instructions were that you either have to give or nominal damages or you give or damages based on her terminations if you find that the terminations would not have occurred if she'd had a procedural to process hearing the judge specifically held it and there's there's at least the discussion about this in the record that she did not put on sufficient evidence of emotional damages deriving solely from the procedural due process violation so we did not object because frankly we thought it was right at the time it was only after the fact that the emotional damages were  were used to as an excuse to uphold the jury verdict let me ask you this do you concede that employee as opposed to management is in tattle has a property interest in the job in the sense that they can't be terminated without cause yes your honor i think i think the way the handbook is written and a general low level employee of hale county so so this just ball down to whether or not she was an employee as opposed to a management supervisory staff right yes your honor and whether she was a confidential employee which i know i mean what this confidential employee have to do with the property interest and in terms of it the nature of her position being management supervisory staff and not having a in other words simply a correlation a supervisory staff in management more likely to be in a confidential position yes you are and that was actually the basis for judge that the reason it comes in is because judge crawford the reason and i know that the district court gave granted him summary judgment was individual capacity that immunity grounds because it found that  e reasonably believed that because she was a confidential employee as chief clerk that she you know was not entitled to this interest you know there's so much wrong with this policy and i'm not sure this is directly relevant  most puzzling sentence to me is our own romany look to probationary employees shall share in all the benefits of employment the county except that dismissals for cause during the probationary shape period shall not good morning let me let me tell you who are moving towards and i'm not there and i'm just speaking for myself it seems to me that this plan distinguishes between employees and those who i guess are technically employees but they're part of management and part of supervisory staff you agree with them your honor i don't believe the handbook makes the distinction between rank and file employees and  you tension on a roman numeral two part d on page two each employee should be given a copy of his or her description and employees have a handbook outlining all policy conditions and benefits both employee sick employees both employee and management supervisory staff we required to know and productively implement all the provisions except for both employees and management supervisory st and then in elf it says when disagreement over solution a problem cannot be resolved permanent employees show i have access to a group of procedure to successfully how a levels of management management slash supervisory personnel w there are believe that the handbook does distinguish duties between management and rank and file employees but i don't believe that those provisions make a distinction as to the due process allowed for rank and file employees or management i believe the only distinction in the handbook is between probationary employees which are those that have not been employed for three months and permanent employees who have  been employed longer than three months as as far as due process and the property interests this created by the hand but there's a distinction with the parts i just read to you between employees and management supervisory staff and then they further distinguish two classes of employees want to probationary and the other are permanent employees but it doesn't say permanent management slash supervisory staff for example it does not ms langfor did not participate in writing the handbook but we believe that based on page to all employees of hale county all permanent employees of hale county are entitled to due process we believe that trumps getting into the but but then that begs the question of what for purposes of this handbook is a permanent employee and whether that includes management slash supervisory staff they could have said non management slash supervisory staff permanent employees but that's rather awkward construction as i understand alabama law and this is not the law everywhere but is on the stand alabama law there's a strong presumption against creating a property interest in a position of employment and vitiate ing the at will presumption that alabama law puts into place i'm not wrong about that there's that's correct your honor but the hofmann roge case they stayed in they are that if the handbook is not intended to form a unilateral contract it's free to do so likewise the handbook is free to state that it does not apply to the understand that but the question is what happens when there is some ambiguity when the statement isn't clear in the handbook and as i understand alabama law and that's the case when there are indications pointing both directions unlike the contra proffer and i'm canon if you add that you'd wind sure but but you don't have that alabama law says no it has to be strong and clear i thought for a while ok that makes sense in the private employment contract as well so tell me why that presumption isn't a serious problem it tell me why you don't have to show that it is clear in here that your client was not management slash staff distinguished from employ your honor i'm not sure that i can again i wish i'd had some more input into the writing of it and i agree was cited too by the appellants as to the problems with the handbook the fact that it wasn't clear and in the green cases says of most relevance would be those provisions in which the employer again uses the term permanent to describe the status of some employees and understand what the courts asking but we believe that the handbook al beit not perfectly does establish the distinction between permanent and probationary when it gets into the issues with management it's not as clear but i believe that the overriding  preamble on page two the cover covers everyone that any that all permanent employees and it doesn't make the distinction between management or rank and file but that all permanent employees are entitled to due process case it was filled by a register of one judge crawford and that's how i and that's the way of saying you can fill it with whoever you want to disregard in any need for a register oh yes or and i i dissected that in the trial speaking specifically about the way judge crawford hired patricia pickens ms lankford replacement but  judge crawford testified that he could hire whoever he wanted for the position david rogers the one of the county commissioners stated that he believed and langford was an employee of hale county he believed she was certainly paid paid by the county commission and i want to say hale county i meant county commission and again going back to your question i dissect small county it's a small office there's not one hundred clerks working there there are many on the ability for and and i believe that includes the chief clerk so she's one she's one of four and management supervisory to me and it doesn't sound like an employee in the usual science but again this handbook wasn't followed in parts b and c too because there was no register of eligible employees and and then see in filling vacancies above the entry level this was definitely above entry level first consideration will be given to qualified county three clerks at the time at the time that would have been and he testified that well the way this client i didn't think that well in hiring much chief deputy clerk or chief clerk  you're out also point out that one of the issues you've seen in this case was that judge crawford the reason the judge crawford came up with ultimately as to why he terminated and langford was because laura baer was leaving she was a subordinate clerk when laura barrett left what made him or was hired same the same way there was not a register of applicants and there's no question that juanita moore was a rank and for laura barrett was a rank and file employee but she was hired by judge the personnel manual makes a distinction between supervisory employees in rank and file employees she was hired the same way the subordinate clerks and everyone else is hired and indicates to me that any property interest created here is very weak because this isn't followed there's not very much of the hill county personnel policy that seems to be falling ok but doesn't that undermine property property interests is something you have a right to under state law correct and they didn't treat this and external indications count and they didn't x donnelly indicate from their behavior that this was binding on them under alabama law i do honor we do cite to harbison the strickland which is now a bama supreme court case the states it's elementary that it's the terms of the written contract not the middle operation of one of its parties that control its interpret injective test but as i understand it and property interests not go back and make sure my understand correct the ex turtle manifestations of whether it's followed or not  ok to the extent that this employee's handbook create property rights did that give a property right to the other three clerks to be given first consideration for this position the argument could certainly could be made that it would but whether they followed it or not and i do understand the external manifestation argument i think that's valid however  chose not to follow their own personal manual i can speak to the extent that she had a property interest one of the things you're seeking is reinstatement for in order to reinstate her then you would have to essentially farms pickens doesn't miss pickens now have a property interest that would be at issue if mr langford were returned to the that position that's correct but there are other positions and hale county for example the david rowe david rogers one of the commissioners who spoke at the trial he said that he went to judge crawford and asked him if an langford could work at the humane society just something for her to do to round out this is not necessarily seeking recent reinstatement to the chief clerk she just wants another job she would certainly prefer to be chief clerk but she she would reinstatement it in any position as long as it was comparable in pay and the compensation and i just wanted to ask on a slightly different we did not go forward with her the state remedy and so she didn't go for she didn't seek a post terminations hearing and the reason for it was that there were too many biased people against me does the fact that she how does the fact that she did not under and seek that post terminations hearing affect whether or not there was a violation ok your honor mckinney does address that pretty terminations violations can be cured by post terminations remedies and that's pointed out by the appellant however mckinney also cites to louder mill which states that something has to be done and there was no pre term a nation in anything to be corrected in this case she was simply told you no longer have a job you violate the trust in the confidence but she did exhaust her state remedies at this point so we don't know what would have happened had she gone through the past emanation here and correct that that's correct but my point being under loudermilk that eric cantor had to make some effort or they had to do they had they had to make some effort to try to afford misapplying for her due process rights and by not doing anything there was no to nothing post terminations they could have been corrected so complete she sewed she saw no reason to deviate from it now and judge today did not grant summary judgment in favor of the plaintiffs in that case because the distinction was was the chief clerk try so galbreath it's spelled trisha but pronounced try so she was the county administrator and she had a written contract and judge granade believed there was a genuine issue of material fact as to what controlled the written contract or the personnel policy judgment i stated pointing to the lankford case that she believed that the handbook correct and it was the inner play between the written contract and miss galbraith did receive a personal hamburg but there was the enter play between the written contract and the personnel and other then the existence of the same employee's handbook there is no factual overlap gall breath wasn't terminated in our last something in can but calls langford lost something i gather honor could you repeat that yeah it was there any factual overlap between the two cases other than the existence of the employee handbook and a new probate judge coming in and i was about to address that  it took a lot of your time he won't do you need any more term i don't and i was going to say this was my first opportunity to appear in front of the eleventh circuit not appreciate that and i've enjoyed my time kidd five minutes if you needed you know but alabama case law and this court case law applying alabama law to similar issues has repeatedly focused on the fact that when there are you know different provisions and hand m which of course another public employee or case where the court looked at it and said ok you know you have executive director he says this is permanent there was a question in there about whether that executive director actually had the authority to make that offer prime self which i think is another issue here and but there are contradictory provisions but in that case the alabama court looked at it and said but the fact that the  that in firing the plaintiff that the defendants had felt themselves bound by and had acted in accordance with visions of the handbook tended to be evidence to show that they were in fact found that you know in this case it's the exact opposite judge crawford and there's no dispute about that just crawford always believed that at least that it very least in his langford didn't fall under those provisions that you know the other issue of course of course they could have and this would have been much simpler if they just said you know employment's not at will but while haldeman rule libro church does say that that sufficient there's no alabama case law that says that that's necessary i think that's important point of distinction at the other issue i wanted to briefly touch on the issue of reinstatement as judgments brought up you know where reinstatement could have come and should have come and frankly the courts with the jurisdiction to reinstate miss langford were the state courts you know that was her that was how she could have gotten back gotten back her job the fact that she waived that you know at this point it's just a pre not sure she waived her claim to reinstatement in other words i understood and stood her theory to be in the jury instruction damages award same's to two of us accepted her theory to be if i had been given procedure or due process protections upfront i would not have been fired because i could have convinced them not to fire me and if that's true and the verdict can be interpreted that way in my view if that's true then she is entitled some damages for having been terminated not just mental and emotional distress but what the sour she lost in the retirement of benefits that she lost   the damages in the theory about him that if she'd been given the procedural due process in this particular case there's never been any evidence that that was the basis and that that was jury that if there was nothing she said could have said or done to prevent that then there's no damages well your honor that goes back to other than normal that yes that goes back to the fact that at the time there were substantive claims there was a subset of ray's climb and there was also a first amendment association clime i'm not talking about a jury instructions on those i'm talking about the jury instructions on procedur process pre term and hearing about lation you should have been charging hard and say look you need to charge this jury that if there is no evidence there is no basis unless also would have played into the idea that she would have gotten a fair procedural due process because of the issue of bias it was a jury instruction in there that said that you know if you find four you have to find hearing alone could not result in any damages beyond one dollar unless they showed that she wouldn't have been fired if she had been given a hearing then you should have asked for an instruction to that effect rather than saying well of lose on the other claims it won't make any difference well in your honor i think it was clarified to the jury in the instructions they were they were told that you either only had to do nominal damages or damages based on or terminations if you find that she would not have been terminated in the unique facts of this case given that the steps and of claims are out neither neither the district court nor asked for fifty eight judgment as a matter of law before the case was submitted to the jury on the theory that there was no evidence that she had been given a pre determin that general general request doesn't do it you have to tell the court he sat quite what the defect in the evidence presented as i understood that that by the time you raised a new trial or military whatever you had not raised i cries out for a negotiated settlement i mean it really does i gather most i gather based on past history with similar cases that there's some bad blood on both sides and in the best interest each side's client yob can negotiate first with your clients around the bad blood and side look this case could go either way you should have heard oral argument we were confused the court was a little bit confused and you can lose everything you can lose everything ah but there's this lady wants an income salary she's willing to work for she wants access to the retirement thing given her state and live that's the kind of stuff you can negotiate she's she's i do counsel realistically expects that a court is going to order her back into that i can't believe she'd want that but she's volunteer ing for other work positions as i understand it will decide this case i'm not saying this because it's any burden to decide it's unclear i don't know how would decide if we had conferred about it or anything you've heard as much of the views of my colleagues as i have but i'm telling you this all or nothing one way or the other kind of thing is the kind of thing that really ought to be set down negotiated out we won't know what happens in mediation  so you can walk into mediation the first day and say my client doesn't want any part of it i'm here before cause the court ordered me or telephone however they do it would do in your case then we want now so we're not taking a way from you the right to a decision we'll give you the decision you very well may not like it but we will give you the best decision we can give you on the thing so i'll get out of standard order referring out to mediation and i'm mediation politest and and i don't think this case is linked to go brown but i'll make sure there is no ruling on the employee handbook property rights issue and galbreath until