1

 Unless otherwise noted, these facts are cited from Plaintiff’s Undisputed Statement of

Facts within her Memorandum of Law (Doc. 50) in Support of her Motion for Summary

Judgment or her Statement of Undisputed Facts contained in her Response (Doc. 57) to

Defendants’ Motion for Summary Judgment.

IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

VICKIE TAYLOR )

)

Plaintiff, )

)

v. ) Civil Action No.: 04-758-BH-B

)

THE CITY OF DEMOPOLIS, et al. )

)

Defendants )

ORDER

This matter is before the Court on the Parties’ Motions (Docs. 46 & 48) for Summary

Judgment. Defendants filed their Motion (Doc. 46) seeking Summary Judgment as to all counts

brought by Plaintiff. Plaintiff responded (Doc. 57) and Defendants, in turn, replied (Doc. 62) to

Plaintiff’s Response. In addition, Plaintiff filed her own Motion (Doc. 48) for Summary Judgment

seeking disposition of her claims of False Imprisonment and Invasion of Privacy. Defendants

submitted their Response (Doc. 53) and Plaintiff replied (Doc. 63). Based on analysis of the above

cited documents and all relevant submitted evidence, the Court finds that Defendants’ Motion (Doc.

46) for Summary Judgment is due to be GRANTED. Plaintiff’s Motion (Doc. 48) for Summary

Judgment is due to be DENIED.

FACTS1

1. The City of Demopolis has a population of approximately 8,000 residents. (Def.’s Mot.

Summ. J., Doc. 46, p. 2).

Case 2:04-cv-00758-BH-B Document 74 Filed 12/06/05 Page 1 of 23
2. Plaintiff, Vickie Taylor, was first employed by the City of Demopolis in 1986 as an accounts

payable clerk. 

3. In 1993, Taylor was asked by the Mayor of the City of Demopolis, Austin Caldwell, to begin

taking the city clerk training courses in preparation for stepping into the position of City

Clerk of the City of Demopolis (hereinafter, “City Clerk”) when the current City Clerk

retired. 

4. In May, 1996, Taylor was made City Clerk by the City Council of the City of Demopolis

(hereinafter, “City Council”) to fulfill the rest of the term of the previous City Clerk who had

retired. In November of that same year, Taylor was elected to the position of City Clerk by

the City Council. 

5. Taylor maintained her position as City Clerk for Demopolis and was elected to serve another

term as City Clerk in October 2000. 

6. On September 14, 2004, upon the retirement of Austin Caldwell, Cecil Williamson was

elected as Mayor of Demopolis. Mayor Williamson was sworn in on October 4, 2004. 

7. The City Council members were also sworn in on that evening. The Council was comprised

of Jack Cooley, Charles E. Jones, Woody Collins, Melvin Yelverton and Thomas Moore.

Of the five Council members, Jack Cooley, Charles E. Jones and Melvin Yelverton were

newly elected to their positions. (Def.’s Mot. Summ. J., Doc. 46, p. 2).

8. In September, 2004, after winning their respective elections, but before being sworn into

office, the City Council members and Mayor-elect Williamson met at a private recreation

facility known as Majo’s.

9. At this meeting, Plaintiff alleges that a decision was reached to not re-elect her as City Clerk.

Case 2:04-cv-00758-BH-B Document 74 Filed 12/06/05 Page 2 of 23
10. Immediately after being sworn in, Mayor Williamson and the City Council held an

organizational meeting which was open to the public. (Defs.’ Mot. Summ. J. at 3).

11. During that meeting, Mayor Williamson and the Council went into executive session, which

is closed to the public for the purpose of discussing an individual when that individual’s

good name and character are at issue. They discussed three city offices: City Clerk, Fire

Chief and Police Chief. Id. 

12. The Mayor and Council decided at that time that they would postpone the election of these

three officers as allowed under Alabama statute. Id.

13. On October 6, 2004, Councilman Charles Jones spoke with Plaintiff’s husband. He

indicated to Mr. Taylor that Plaintiff should resign from her position as City Clerk so that

she would not be embarrassed when the City Council did not re-elect her for that position

the next night. (Dep. of Jones, p. 12, 19-20). 

14. On the night of October 6, 2004, Plaintiff had a phone conversation with Mayor Williamson.

Mayor Williamson told her to report to work as City Clerk the next morning. 

15. During this conversation, Plaintiff alleges Mayor Williamson promised her that she would

remain in her position as City Clerk. 

16. On the morning of October 7, 2004, upon arriving at City Hall for work, Plaintiff inquired

with Paula Rich, a city payroll clerk/revenue officer, as to how she could remove some of

her personal Word documents off her computer. (Pl.’s Dep., p. 112).

17. This inquiry was relayed to Mayor Williamson who believed Plaintiff was deleting city

documents. (Dep. of Williamson, p. 119-121).

18. After discussing the matter with the city attorney, it was decided that Plaintiff would be

placed on administrative leave until the election took place that evening. (Def.’s Mot.

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Summ. J. at 4). 

19. Mayor Williamson then called Chief of Police and Public Safety Director for the City of

Demopolis, Jeff Manuel, to escort Taylor from the building and advise her that she had been

placed on administrative leave. (Id.) 

20. At approximately 7:00 a.m., Manuel and a uniformed police officer, Paul Foster, knocked

on the exterior door to Taylor’s office at City Hall. 

21. Manuel informed Plaintiff that Mayor Williamson had directed him to remove to her from

the premises and place her on administrative leave. 

22. Plaintiff was allowed to collect her personal belongings and she and Manuel left City Hall

through a side door, before City Hall opened to the public. (Def.’s Mot. Summ. J. at 4).

23. After Plaintiff was escorted from City Hall on the morning of October 7, her neighbor, Dr.

Earl Perret saw that she was upset. Dr. Perret believed that Plaintiff was in a form of

dysfunctional shock. 

24. On the evening of October 7, 2004, the City Council elected Paula Rich as the new City

Clerk. Plaintiff did not appear at this meeting. 

25. That evening, Paula Rich signed a document stating that she was elected “Acting City Clerk”

by the City Council. 

26. Moments later, Rich also signed a letter tendering her resignation from the post of City Clerk

and acknowledging that she only accepted the position for a maximum term of 90 days. This

letter is not dated. 

27. After Paula Rich was elected and qualified, the city then solicited applications from the

public for another City Clerk. (Def.’s Mot. Summ. J. at 4). 

28. On December 3, 2004, the City Council elected Carla Cowling as City Clerk to serve the

Case 2:04-cv-00758-BH-B Document 74 Filed 12/06/05 Page 4 of 23
next four-year term. 

29. On October 7 and 8, 2004, Paula Rich, as acting City Clerk, prepared payroll checks for the

City employees using the signature stamp of Vickie Taylor. 

30. Denise Barton, Accounts Payable Clerk for the City of Demopolis, also used Plaintiff’s

signature stamp without her permission to transact business on behalf of the city after

October 7. 

31. Mayor Williamson also signed these checks endorsed with Plaintiff’s signature, even though

she knew Plaintiff was no longer a city employee. 

32. In 1996 and 2000, while City Clerk, Plaintiff was told by then mayor Austin Caldwell to

keep track of her hours worked during the election period. For the hours she worked in

excess of 40 hours per week, Plaintiff was compensated with the overtime rate of time and

one half. 

33. In 2004, prior to the election, Mayor Caldwell again told Plaintiff to keep track of her

overtime hours during the election. 

34. While City Clerk, Plaintiff helped draft the City of Demopolis Personnel Policy Manual

(hereinafter, “Personnel Manual”). The Personnel Manual was adopted as a city ordinance

on August 15, 2002. 

35. On October 11, 2004, Plaintiff went to the Fitz-Gerald & Perret Clinic for medical treatment.

Gayla Culpepper, P.R.N., evaluated Plaintiff’s condition on that morning. Upon

examination, Culpepper prescribed three medications to Plaintiff to treat depression and

anxiety. In addition, Plaintiff received a prescription for a sleep aid from a medical doctor

at the clinic. 

36. Culpepper also suggested that Plaintiff check herself into a mental care facility associated

Case 2:04-cv-00758-BH-B Document 74 Filed 12/06/05 Page 5 of 23
with DCH Hospital in Tuscaloosa, Alabama. Plaintiff decided not to be checked into the

facility. 

37. In January, 2005, Plaintiff applied for unemployment compensation benefits with the State

of Alabama Department of Industrial Relations (hereinafter, “DIR”). 

38. The City objected to Plaintiff receiving unemployment compensation because they believed

her to be an elected official rather than an employee. 

39. The Alabama DIR rejected the City’s contentions and awarded Plaintiff unemployment

compensation benefits. 

40. Plaintiff filed this action before the Court on November 29, 2004. (Doc. 1).

41. Plaintiff’s Complaint asserts the following claims: 

a. Violation of 42 U.S.C. §1983 for deprivation of rights under color of state law

without due process. Plaintiff sues Mayor Williamson and the City Council in their

official capacities

b. Violation of Fair Labor Standards Act (hereinafter, “FLSA”), specifically 29 U.S.C.

§207, for failure to pay her for overtime work. Plaintiff asserts this claim against the

City of Demopolis.

c. Violation of ERISA and COBRA under 29 U.S.C. §§1161-1169 for failure to

provide her with a notice of her continuation rights under the city’s group health

insurance plan. Plaintiff submits this claim against the City of Demopolis.

d. Breach of Contract. Plaintiff alleges the Personnel Manual created an employment

contract between the City of Dempolis and herself. Plaintiff asserts this claim

against the City of Demopolis. 

e. Breach of Employment Contract - Oral. Based on Plaintiff’s allegation that Mayor

Case 2:04-cv-00758-BH-B Document 74 Filed 12/06/05 Page 6 of 23
2

 Plaintiff has also attempted to amend (Doc. 64) her Complaint to expand her invasion of

privacy claim to allege false light invasion of privacy. Based on Plaintiff’s failure to assert this

claim within the court mandated period for amending pleadings and the fact that this particular

type of invasion of privacy could not reasonably be inferred from Plaintiff’s existing pleadings,

the Court denied (Doc. 68) Plaintiff’s Motion to Amend. 

Williamson promised her that she would be City Clerk for four more years. Plaintiff

proffers this claim against the City of Demopolis. 

f. Negligent Supervision based on the City Council’s alleged negligence in allowing

Mayor Williamson to terminate Plaintiff from her employment and utilize the police

to remove Plaintiff from city property. Plaintiff submits this claim against the City

of Demopolis.

g. Tort of Outrage based upon Mayor Williamson’s actions in having Plaintiff escorted

from City Hall on October 7, 2004. Plaintiff sues Mayor Williamson in her

individual capacity, as well as the City of Demopolis through the conduct of the City

Council in ratifying Mayor Williamson’s actions.

h. Invasion of Privacy alleging misappropriation of Plaintiff’s name and signature for

the City’s use without Plaintiff’s permission. Plaintiff asserts this claim against the

City of Demopolis.2

i. Interference with a Business Relationship. Plaintiff alleges Defendants Williamson,

Moore, Cooley, Collins, Yelverton and Jones took actions to interfere with her

employment contract with the city. Plaintiff sues Defendants Williamson, Moore,

Cooley, Collins, Yelverton and Jones in their individual capacities. 

j. False Imprisonment based on Jeff Manual’s actions in escorting her from City Hall

on the morning of October 7, 2004. Plaintiff sues the City of Demopolis and Mayor

Williamson in both her individual and official capacities. 

Case 2:04-cv-00758-BH-B Document 74 Filed 12/06/05 Page 7 of 23
k. Wrongful Termination. Plaintiff alleges that she was terminated prior to when her

statutorily mandated term had lapsed. Plaintiff submits this claim against the City

of Demopolis.

l. Age Discrimination in violation of the Alabama Age Discrimination and

Employment Act (hereinafter, “AADEA”), Ala. Code §§ 25-1-20 through 25-1-29.

Plaintiff asserts this claim against the City of Demopolis. 

(Am. Comp., Doc. 10).

42. On October 5, 2005, Plaintiff voluntarily motioned (Doc. 54) to dismiss her claims alleging

ERISA and COBRA violations, Breach of Employment Contract - Oral and Negligent

Supervision. The Court complied (Doc. 61) and those claims have been dismissed with

prejudice. 

LEGAL ANALYSIS

Summary Judgment Standard

Summary judgment shall be granted “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law.” Fed.R.Civ.P. 56(c).

 An issue of fact is “material” if, under the applicable substantive law, it might affect the

outcome of the case. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1259 (11th Cir. 2004)

(citing Allen v. Tyson Foods, 121 F.3d 642, 646 (11th Cir. 1997); Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986)). An issue of fact is “genuine” if the record taken as a whole could lead

a rational trier of fact to find for the nonmoving party. Id. A court must decide “"whether the

evidence presents a sufficient disagreement to require submission to a jury or whether it is so

Case 2:04-cv-00758-BH-B Document 74 Filed 12/06/05 Page 8 of 23
3

 When a municipal officer is sued in their official capacity under §1983, such a suit is, in

actuality, a suit directly against the city that the officer represents. Blyther v. City of Mobile,

2005 WL 3019756 (S.D. Ala. 2005)(citing Busby v. City of Orlando, 931 F.2d 764, 776 (11th

Cir. 1991)). Because suits against municipal officers sued in their official capacity and direct

suits against municipalities are functionally equivalent, there no longer exists a need to bring

official capacity suits against local government officials. Id. 

one-sided that one party must prevail as a matter of law.” Id. 

The moving party bears “the initial responsibility of informing the ... court of the basis for

its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Where the nonmoving party bears the burden of proof at trial, the moving party may discharge its

“initial responsibility” by showing that there is an absence of evidence to support the nonmoving

party's case or by showing that the nonmoving party will be unable to prove its case at trial. United

States v. Four Parcels of Real Property, 941 F.2d 1428, 1437-38 (11th Cir. 1991). To survive

summary judgment, the nonmoving party bearing the ultimate burden of proof at trial must then

come forward with evidence sufficient to withstand a directed verdict motion. Fitzpatrick v. Atlanta,

2 F.3d 1112, 1116 (11th Cir. 1993).

On summary judgment, “the district court should resolve all reasonable doubts about the

facts in favor of the non-movant, and draw all justifiable inferences ... in his favor.” Four Parcels,

941 F.2d at 1428 (internal quotations and citations omitted).

42 U.S.C. 1983 Claims

Plaintiff alleges that her rights under 42 U.S.C. §1983 have been violated by Mayor

Williamson and the City Council, in their official capacities,3

 based on her belief that she had a valid

property interest in her position as City Clerk and that she was “terminated” without due process of

Case 2:04-cv-00758-BH-B Document 74 Filed 12/06/05 Page 9 of 23
law. Plaintiff also contends that prior to being elected City Clerk she was an employee of the City

of Demopolis and upon assuming the role as City Clerk she never relinquished any rights that she

had as a city employee. Based on this assumption, Plaintiff believes that once her tenure as City

Clerk ended she was entitled to another position with the City of Demopolis.

“To have a property interest in a benefit, a person clearly must have more than an abstract

need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have

a legitimate claim of entitlement to it.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577

(1972). In the instant case, Plaintiff asserts that she is entitled to employment based upon Alabama

statute and a contractual reliance on the City of Demopolis’s Personnel Manual. 

Alabama Statute

Under Alabama statute, in cities of more than 6,000 inhabitants, city councils are to elect city

clerks to hold office “until the next general election and until their successors are elected and

qualified ... .” Ala. Code § 11-43-3. Plaintiff states that she is not claiming that she should have

been permitted to serve as City Clerk in perpetuity, rather that she should have remained City Clerk

until the City went through an application and interview process and elected and qualified a

successor. Plaintiff claims that such a process was not completed until December 3, 2004, almost

two months after she was removed as City Clerk. Therefore, she alleges that her removal was done

prematurely and without due process of law. 

When Plaintiff was elected to her second term as City Clerk in 2000, her employment at that

position was only statutorily protected until the next general election and until a successor was

elected and qualified. On September 14, 2004, Williamson won the general election run-off to

become mayor of Demopolis. On October 7, 2004, Plaintiff was placed on administrative leave by

Case 2:04-cv-00758-BH-B Document 74 Filed 12/06/05 Page 10 of 23
4

 The Court does not find that Mayor Williamson’s decision to place Plaintiff on

“administrative leave” for one day constitutes termination. As Mayor Williamson stated in her

deposition, such an action simply placed Plaintiff on leave with pay. (Dep. of Williamson, p.

110). 

Mayor Williamson.4

 That same evening, the City Council elected and qualified a new City Clerk,

Paula Rich. Based on these facts, the Court finds that once a new City Clerk was appointed on

October 7, 2004, Plaintiff no longer had any cognizable right to her employment position as City

Clerk. 

Plaintiff proffers that the City’s appointment of Paula Rich as an “acting” City Clerk was in

violation of Alabama law and did not satisfy its obligation to retain Plaintiff as City Clerk until a

“legitimate” City Clerk was elected. However, the Alabama statute does not indicate that the term

length of a subsequent City Clerk has any bearing on when the term of the previous clerk expires.

All the statute requires by its plain language is that a successor be elected and qualified. The Court

declines to infer any further statutory requirements that are not supported by the plain language of

the law. Once a successor was elected, temporary or otherwise, Plaintiff’s term was over and she

no longer had a property interest in that employment position. Any contention as to the propriety

of Ms. Rich’s length of term is solely between her and the City of Demopolis. 

Contract

Plaintiff further alleges that she had a right to continued employment as an employee of the

City of Demopolis after her removal as City Clerk. Plaintiff claims that prior to taking the job as

City Clerk in 1996 she was an employee of the City and at no time did she ever resign or relinquish

those rights. Plaintiff asserts that because she is still a city employee, the City violated the terms

of the Personnel Manual in terminating her. 

From 1986-1996, Plaintiff worked as the accounts payable clerk for the City of Demopolis.

Case 2:04-cv-00758-BH-B Document 74 Filed 12/06/05 Page 11 of 23
In this position she was a typical city employee. In 1996, Plaintiff was elected by the City Council

to the position of City Clerk, a position with duties and responsibilities that were separate and

distinct from that of her previous position as accounts payable clerk. Once she became City Clerk,

other employees were hired or assumed her duties as accounts payable clerk. Currently, Denise

Barton holds the position of accounts payable clerk. 

The Court finds that the acceptance of the position of City Clerk and the discontinuance of

her duties as accounts payable clerk are sufficient to demonstrate that she relinquished her position

as a typical employee of the city. Rather, she became a council-elected city officer whose

employment status was then governed by Alabama statute. See Ala. Code §§11-43-3; 11-43-81. 

Further, there is also no evidence that there was any contract with or promise to Plaintiff that she

could return to another employment position at the conclusion of her terms as City Clerk. There is

no legal requirement that, absent a contract, a municipality must provide employment for outgoing

officials who relinquished their previous government jobs to hold a higher position. Therefore, the

Court finds that Plaintiff has no cognizable legal right to a job with the City of Demopolis.

The Court holds that Defendants did not violate Alabama law in replacing Plaintiff as City

Clerk. The Court also finds that Plaintiff relinquished her position as a typical city employee when

she was elected City Clerk and there is no evidence that Plaintiff was ever promised a position with

the city once her terms as City Clerk ended. In order to assert a Constitutionally protected property

interest in her job, Plaintiff must have more than a unilaterally perceived entitlement to that position.

Even taking the facts in light most favorable to Plaintiff, the Court cannot find that there has been

any violation of her rights under 42 U.S.C. §1983. Therefore, Defendants’ Motion for Summary

Judgment on Plaintiff’s claim of violations of 42 U.S.C. §1983 is due to be GRANTED. 

Case 2:04-cv-00758-BH-B Document 74 Filed 12/06/05 Page 12 of 23
Breach of Employment Contract

Plaintiff also alleges that the Personnel Manual was an employment contract that Defendants

violated regarding her “termination.” She asserts that while City Clerk, she was a city employee and

that the City’s Personnel Manual created an employment contract governing her relationship with

the city. The Court does not disagree with Plaintiff’s contention that a personnel manual can create

a contract. However, the Court does not find that the City of Demopolis’s Personnel Manual applied

to the position of City Clerk in regards to employment actions. 

Plaintiff argues that the Alabama DIR has already determined the issue of whether she was

an employee of the City of Demopolis during her term as City Clerk. Based on the DIR’s finding

that she was an employee for the purpose of obtaining state unemployment benefits, Plaintiff asserts

that Defendants are collaterally estopped from arguing that the terms of the Personnel Manual

regarding termination do not apply to her. Without delving into federal courts’ applications of

collateral estoppel, the Court emphasizes that the issue is not whether Plaintiff was simply an

employee of the City of Demopolis. Rather, the key distinction in this matter is whether Plaintiff

is a typical city employee whose termination would be controlled by the terms of the Personnel

Manual or a unique city official whose employment actions are governed by state statute.

Though not elected by the public through general election, as a mayor or city council

member would be, a city clerk’s election by the city council does differentiate them from a typical

city employee. Unlike most city employees, city clerk is a government office for which the state has

deemed necessary certain provisions regarding terms of employment. Most clearly at issue here is

the legislation regarding the specific procedure for filling the position of City Clerk and

establishment of term length. Ala. Code §11-43-3. Also, as an officer appointed by the city council,

there is a specific procedure for removal prior to the conclusion of their term. Ala. Code §11-43-81.

Case 2:04-cv-00758-BH-B Document 74 Filed 12/06/05 Page 13 of 23
5

 This, however, does not necessarily mean that Plaintiff could not be subject to or benefit

from other provisions within the Personnel Manual. Rather, as the Manual’s language states,

“the sections, paragraphs, sentences, clauses, and phrases of these rules are severable, and if any

phrase, clause, sentence, paragraph or section of these rules shall be declared unconstitutional,

unenforceable or invalid by the valid judgment or decree of a court of competent jurisdiction,

such unconstitutionality, unenforceability or invalidity shall not affect any of the remaining

phrases, clauses, sentences, paragraphs and sections of these rules.” (Doc. 46-12 at 6).

Any contract, or portion of a contract, that provides otherwise is in contravention of these laws and

will not be given any weight by this Court.5 Therefore, because Alabama statute controls these

aspects of a city clerk’s employment, Plaintiff’s claims that are brought pursuant to the Personnel

Manual are without merit. Defendants’ Motion for Summary Judgment as to Plaintiff’s claim of

Breach of Employment Contract against the City of Demopolis is due to be GRANTED.

Intentional Interference With Business Relationship

Plaintiff next claims that Defendant City Council members Moore, Cooley, Yelverton, Jones

and Collins, as well as Mayor Williamson, are each individually liable for tortious interference with

the business relationship Plaintiff had with the City of Demopolis. More specifically, Plaintiff

contends that when Defendants met at Majo’s in September, 2004, they decided, prior to being

sworn in as city officials, that Plaintiff would not retain her job as City Clerk. 

Without addressing the issue of whether these officials are entitled to qualified immunity

based on any actions they may have taken after being elected but before being sworn in, the Court

finds that Plaintiff’s claim does not survive summary judgment. Under Alabama law, the first

requirement necessary to support a claim of tortious interference with a business relationship is the

existence of a contract. Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143,

1153 (Ala. 2003). In support of her claim, Plaintiff asserts that the Personnel Manual served as her

employment contract and these council members somehow interfered with the contract causing her

to prematurely lose employment. As the Court has already stated, as City Clerk, Plaintiff’s terms

Case 2:04-cv-00758-BH-B Document 74 Filed 12/06/05 Page 14 of 23
of employment and method of removal were statutory, not contractual. Therefore, any decisions

Defendants may have made at their September, 2004 meeting a Majo’s regarding Plaintiff’s position

as City Clerk did not affect any contractual terms Plaintiff had with the City of Demopolis.

Defendants’ Motion for Summary Judgment as to Plaintiff’s claim of Intentional Interference with

Business Relationship is due to be GRANTED. 

Wrongful Termination

Plaintiff also brings a state law claim against Defendant City of Demopolis for wrongful

termination based on the allegation that she was terminated from employment without being

afforded due process rights or provided notice and a hearing. Though a cognizable tort under

Alabama law, See Hardric v. City of Stevenson, 843 So. 2d 206, 209 (Ala. 2002), the Court does not

find wrongful termination to be applicable in the instant case. As we stated in our discussion of

Plaintiff’s §1983 claim, Defendants did not violate the due process rights of Plaintiff in selecting a

new City Clerk pursuant to Alabama Code § 11-43-3. Therefore, Defendants’ Motion for Summary

Judgment as it applies to Plaintiff’s state law claim of wrongful termination is due to be

GRANTED.

Alabama ADEA 

In her brief in Response (Doc. 57) to Defendants’ Motion for Summary Judgment, Plaintiff

contends that Defendant City of Demopolis violated the Alabama Age Discrimination in

Employment Act (hereinafter, “AADEA”) for failure to hire or promote based upon her age.

However, in her Amended Complaint (Doc. 10), Plaintiff never mentions failure to hire/promote,

rather only asserts a violation for wrongful termination. In establishing a prima facie case of

discrimination by virtue of termination, a plaintiff must prove: (1) Plaintiff was a member of a

protected class; (2) Plaintiff was actually qualified for and applied for the position sought; (3)

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6

 The Court notes that the standards governing AADEA cases are identical to those

established for it federal counterpart, the ADEA. Bonham v. Mortgage Inc., 129 F. Supp. 2d

1315 (M.D. Ala. 2001). The AADEA, in fact, specifically provides “the remedies, defenses, and

statutes of limitations, under this article shall be the same as those authorized by the federal Age

Discrimination in Employment Act,” with the only noted exception being that plaintiffs are not

required to pursue an administrative remedy prior to filing suit. Ala. Code §25-1-29 (2005).

Plaintiff was subject to an adverse employment action; (4) the position was filled by someone

outside the protected class who was equally or less qualified for the position than Plaintiff. Kelliher

v. Veneman, 313 F.3d 1270, 1275 (11th Cir. 2002).6

 In the instant case, Plaintiff does not argue her

claim of age discrimination based on wrongful termination. Instead she erroneously devotes her

briefing to a claim of failure to hire/promote which is not one of her presented claims. 

Despite Plaintiff’s failure to properly defend the claim presented, the Court has examined

the issue of age discrimination based upon Plaintiff’s alleged termination. The Court finds that

Plaintiff cannot demonstrate a prima facie case because she has failed to show that she was subject

to an adverse employment action. Plaintiff was elected City Clerk in 1996 by a different mayor and

a different city council. In 2000, again a different city council elected her to another term at her

position. In 2004, however, a mayor and three new city council members came into office and,

pursuant to their statutorily mandated discretion, elected and qualified a new city clerk. At this

point, under Alabama law, Plaintiff’s term as City Clerk simply expired. She was not demoted, fired

or terminated, she was simply not re-elected by the incoming administration. The Court does not

find this to be an adverse employment action and, therefore, finds that Plaintiff cannot establish a

prima facie case of wrongful termination in violation of the AADEA. Defendants’ Motion for

Summary Judgment as it applies to Plaintiff’s claims under the AADEA is due to be GRANTED.

Case 2:04-cv-00758-BH-B Document 74 Filed 12/06/05 Page 16 of 23
7

 Though initially also asserting this claim against the City of Demopolis for ratification

of Mayor Williamson’s actions, Plaintiff seems to concede, pursuant to Alabama Code §11-47-

190 (2005), that municipalities are immune from liability for intentional torts. (Pl.’s Resp.

Summ. J., Doc. 57, p. 34). 

Tort of Outrage

Plaintiff also claims Defendant Mayor Williamson, in her individual capacity,7

 has

committed the tort of Outrage against her, based upon the Mayor’s actions in removing her from her

office on October 7, 2004. Plaintiff asserts that Mayor Williamson acted outside the scope of her

duties as mayor by ordering the City’s Public Safety Director, Jeff Manuel, and another officer to

remove her from her office at City Hall. Taylor further states Manuel and the other officer were

used to intimidate her to ensure her removal. This action was taken without warning and, allegedly,

after Plaintiff was given assurances that she would remain as City Clerk. Mayor Williamson’s

actions, according to Taylor, were done intentionally, willfully, with malice and with complete

disregard for the Plaintiff. Furthermore, Taylor contends, Williamson’s behavior was outrageous

in character and extreme in degree and completely unnecessary to accomplish the goal of

terminating an employee. 

Under Alabama law, in order for a plaintiff to recover on the tort of Outrage, it must be

shown that the defendant’s conduct: (1) was intentional or reckless, (2) was extreme and outrageous,

(3) caused emotional distress so severe that no reasonable person could be expected to endure it.

American Road Serv. Co. v. Inmon, 394 So.2d 361, 365 (Ala. 1980); See also Stabler v. City of

Mobile, 844 So.2d 555, 560 (Ala. 2002); Thomas v. BSE Indus. Contractors, Inc., 624 So.2d 1041,

1043 (Ala. 1993). These standards are not to be interpreted lightly and the Alabama Supreme Court

has put a heavy burden on plaintiffs seeking recovery for this tort. “Any recovery must be

reasonable and justified under the circumstances, liability ensuing only when the conduct is extreme

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... . By extreme we refer to conduct so outrageous in character and so extreme in degree as to go

beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a

civilized society.” Inmon, 394 So.2d at 365. To this end, in Alabama, the tort has only been

recognized in three types of suits: wrongful conduct within the context of family burials, an

insurance agent’s coercing an insured into settling a claim and egregious sexual harassment. Callens

v. Jefferson County Nursing Home, 769 So.2d 273, 281 (Ala. 2000).

In the instant case, the actions of Defendant Williamson do not fall into any of these

categories. Furthermore, even if the we were tempted to extend the bounds of applicability for the

tort of Outrage, the facts and circumstances in question, even in a light most favorable to the

Plaintiff, simply do not strike the Court as “so outrageous in character and extreme in degree to go

beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a

civilized society.” Inmon, 394 So.2d at 365. Therefore, the Court finds that Defendants’ Motion

for Summary Judgment, as it applies to Plaintiff’s claim of Outrage is due to be GRANTED.

Fair Labor Standards Act

During the summer of 2004, Plaintiff worked hours in excess of her regular work week in

preparation for the upcoming election. Plaintiff claims that she was told by then mayor, Austin

Caldwell, that she would receive overtime pay for these excess hours. Plaintiff has not been

compensated as promised and seeks to recover under the Fair Labor Standards Act (hereinafter,

“FLSA”), 29 U.S.C. §207 (1977). 

Section 207 mandates that employees are to be compensated at the rate of time and one half

for hours worked in excess of forty hours per week. 29 U.S.C. §207(a)(1) (1977). However, in §213

of the FLSA an exception to the §207 overtime payment requirements is carved out for employees

“in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. §213(a)(1) (1977).

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8

 The Alabama Supreme Court has determined that false imprisonment is an intentional

tort for which a municipality can be liable and is not entitled to municipal immunity pursuant to

Ala. Code §11-47-190 (2005). City of Bayou La Batre v. Robinson, 785 So.2d 1128, 1131 (Ala.

2000); Franklin v. City of Huntsville, 670 So.2d 848 (Ala. 1995). 

In the instant case, Plaintiff does not seem to dispute her City Clerk position as being administrative

or that she is subject to the exception. Rather, Plaintiff argues that she can still receive overtime

pay, as she has in the past, despite being subject to the exception. The Court does not disagree.

Plaintiff certainly can receive overtime pay and such payment will not affect her status as a salaried

employee. Aaron v. City of Wichita, Kansas, 54 F.3d 652, 658 (10th Cir. 1995). However, being

permitted to receive overtime pay is a far stretch from entitlement to such compensation. The

question is not whether Plaintiff could be paid for her overtime, but whether Defendants are required

to pay Plaintiff for her excess work. Plaintiff may have been paid for overtime work in the past and

she may have even had an oral contract with the City, through Mayor Caldwell, for overtime

compensation in 2004. However, her claim against the City asserts statutory entitlement to overtime

compensation under the FLSA. Therefore, under §213 of the FLSA, the Court finds that the City

is not entitled to pay her overtime compensation as she is an employee in an administrative role.

Defendants’ Motion for Summary Judgment, in regards to Plaintiff’s claim under the FLSA, is due

to be GRANTED.

False Imprisonment

Plaintiff also asserts that Mayor Williamson, as an individual,8

 and the City are liable for

false imprisonment based upon the mayor’s actions of instructing Police Chief Manuel to remove

Plaintiff from City Hall on October 7, 2004. Plaintiff and Defendants have filed opposing Motions

for Summary Judgment on this particular issue. 

Alabama’s false imprisonment statute declares, “[f]alse imprisonment consists of the

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unlawful detention of the person of another for any length of time whereby he is deprived of his

personal liberty.” Ala. Code §6-5-170 (2005). The Alabama Supreme Court has further held, “For

there to be a false imprisonment, there must be some direct restraint of the person; however, it is not

necessary that there be confinement in a jail or a prison. Any exercise of force, or the express or

implied threat of force, by which in fact the other person is deprived of his liberty, compelled to

remain where he does not wish to remain, or to go where he does not wish to go, is an

imprisonment.” Crutcher v. Wendy’s of North Alabama, Inc., 857 So.2d 82, 92 (Ala. 2003)(citing

Crown Central Petroleum Corp. v. Williams, 679 So.2d 651, 653 (Ala. 1996)); See also Big B, Inc.

v. Cottingham, 634 So.2d 999 (Ala.1993). 

In the instant case, Plaintiff attempts to persuade the Court to view Mayor Williamson’s

actions as compelling Taylor to go where she does not wish to go or go somewhere against her will.

This Court declines. At approximately 7 a.m. on October 7, 2005, prior to the opening of City Hall

for the day, Chief Public Safety Officer and Chief of Police Jeff Manuel and another officer arrived

at Plaintiff’s office door. Upon instruction from Mayor Williamson, he instructed Taylor that she

had been placed on administrative leave and must leave the building. He allowed her time to gather

her personal belongings and escorted her, without physical contact, out the side door of the building.

Even taken in a light most favorable to Plaintiff, these actions simply do not amount to false

imprisonment. Once Taylor was put on administrative leave by Mayor Williamson, she no longer

had the right to be in a city office prior to its opening to the public. Plaintiff was never detained by

Chief Manuel or the other officer. Plaintiff, in her Memorandum (Doc. 50) in support of her Motion

for Summary Judgment, cites that “detention” has been defined as either detaining someone against

their will or forcing someone to somewhere against their will. Here, Plaintiff was not forced to go

somewhere in particular. She was simply forced to go anywhere but the Clerk’s office in City Hall.

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Defendants did not make her go to a particular place and remain there, rather they only made her

leave city property when she no longer had a right to be there. Plaintiff has presented no case law

bolstering her contention that if police remove an individual from place in a non-physical fashion,

but otherwise allow that individual to roam freely, that action amounts to false imprisonment.

Without more support, the Court declines to stretch its interpretation of the existing law to envelop

such a scenario. Therefore, Plaintiff’s Motion for Summary Judgment, as it applies to her claim of

False Imprisonment is due to be DENIED and Defendant’s Motion for Summary Judgment

concerning the same issue is due to be GRANTED. 

Invasion of Privacy

Plaintiff’s final claim against the City of Demopolis is for invasion of privacy based on

misappropriation of Plaintiff’s personality for commercial use. As was the case with the False

Imprisonment claim, both parties seek summary judgment on this issue. 

The Restatement defines this particular form of invasion of privacy as: “One who

appropriates to his own use or benefit the name or likeness of another is subject to liability to the

other for invasion of privacy.” Restatement (Second) of Torts §652C (1977). The Restatement

further clarifies that even though some states have limited this tort solely to instances where the

victim’s name or likeness is used for commercial benefit, generally “[i]t applies also when the

defendant makes use of the plaintiff's name or likeness for his own purposes and benefit, even

though the use is not a commercial one, and even though the benefit sought to be obtained is not a

pecuniary one.” Id. at cmt. (b). Nevertheless, 

No one has the right to object merely because his name or appearance is brought

before the public, since neither is in any way a private matter and both are open to

public observation. It is only when the publicity is given for the purpose of

appropriating to the defendant’s benefit the commercial or other value associated

with the name or the likeness that the right of privacy is invaded. 

Id. at cmt. (d)(emphasis added); Minnifield v. Ashcraft, 903 So.2d 818, 822 (Ala. Civ. App.

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2004)(citing Schifano v. Greene County Greyhound Park, Inc., 624 So.2d 178,181 (Ala. 1993)).

Even if a plaintiff cannot cite commercial damage to the value of their identity, they may still

seek a remedy under this type of tort action. The Eleventh Circuit, applying Alabama law, has

stated, “The appropriation type of invasion of privacy, like all privacy rights, centers on damage to

human dignity. Damages are usually measured by “mental distress” – some bruising of the human

psyche.” Allison v. Vintage Sports Plaques, 136 F.3d 1443, 1446 (11th Cir. 1998). Furthermore,

the Alabama Court of Civil Appeals has clearly noted, “[w]e cannot say that Alabama’s commercialappropriation invasion-of-privacy tort bases liability solely on commercial rather than psychological

interests ... [f]or a private person, psychological interests would likely be the main concern resulting

from the appropriation of his or her likeness ... .” Minnefield, 903 So.2d at 824. 

In the instant case, it is undisputed that the City intentionally utilized a stamp of Plaintiff’s

signature, after she was put on administrative leave and after her term as City Clerk had expired,

without Plaintiff’s permission. Though Defendants claim the use of the stamp was not done

maliciously, the Court finds that there can be no dispute that the City did intentionally use the stamp

to endorse checks and carry out other city business. Since neither side differs as to the facts

surrounding this claim, the Court need only make a legal determination as to whether the elements

establishing liability for this tort are present. 

Defendants submit that they derived no benefit from the use of the stamp and, therefore,

cannot be liable for this tort. The Court disagrees. The City used the stamp so that they could

conduct their business in Taylor’s absence. Though this was not necessarily a pecuniary benefit,

it clearly was beneficial to them. If, as Defendants have stated, the stamp used had no distinct value

associated with it, then there would not have been any need to use it at all. Clearly, based upon

authority that was vested in her as City Clerk, Vickie Taylor’s signature had value for the City of

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Demopolis. By using the stamp of Plaintiff’s signature and tapping into the value that derived from

it without her permission, Defendants misappropriated Plaintiff’s name or likeness for their own

benefit. 

However, though Defendants misappropriated Vickie Taylor’s signature, Plaintiff has failed

to make a showing as to any “mental distress” that may have been caused by Defendants’ actions.

Based solely on Defendants’ minimal transitional use of Plaintiff’s signature for the routine tasks

of endorsing checks and transferring money, the Court cannot find that injury to Plaintiff’s dignity

or psyche could be anything more than de minimis. Therefore, the Court finds that Plaintiff’s

Motion for Summary Judgment, as it applies to her claim of invasion of privacy, is due to be

DENIED. Defendants’ Motion for Summary Judgment as to this claim is due to be GRANTED.

CONCLUSION

Based on the above analysis, the Court finds that Defendants’ Motion (Doc. 46) for Summary

Judgment is hereby GRANTED. The Court also finds that Plaintiff’s Motion (Doc. 48) for

Summary Judgment is hereby DENIED. 

So ORDERED, this 6th day of December, 2005. 

s/ W. B. Hand

SENIOR DISTRICT JUDGE

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