IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

ANN LANGFORD, )

Plaintiff, )

)

v. ) CIVIL ACTION NO. 14-00070-KD-M

)

HALE COUNTY, ALABAMA )

COMMISSION, et al., )

Defendants. )

ORDER

I. Analysis

After due and proper consideration of the issues raised, and there having been no 

objections filed, the Report and Recommendation (Doc. 16) of the Magistrate Judge made under 

28 U.S.C. § 636(b)(1)(B) and dated May 20, 2014, is ADOPTED in part and revised in part,

as follows:

The facts are, briefly, as follows. Plaintiff Ann Langford is a 59 year-old Caucasian 

woman, residing in Hale County, Alabama, formerly employed as the Chief Clerk of the Hale 

County Probate Office (Doc. 1, ¶¶ 4, 8). On March 11, 2013, Defendant Crawford terminated 

Langford’s employment without prior notice or hearing (Doc. 1, ¶¶ 7, 22-23); Langford’s 

replacement was a younger Black woman (id at ¶ 28). Langford filed a grievance with the 

Commission challenging her termination; the grievance was denied on May 1, 2013 without a 

hearing (id. at ¶¶ 5, 33-34). Plaintiff appealed the denial to the Personnel Review Board,1 but her 

objections were rejected (id. at ¶¶ 35, 37). Langford filed a complaint with the Equal 

Employment Opportunity Commission and, on November 22, 2013, was granted a “Right to Sue 

Letter” to pursue this action in Court (id. at ¶ 38; Doc. 1, Exhibit A).

 1

The Personnel Review Board is not a party to this action.

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On February 18, 2014, Langford filed this action, claiming that the previously-named 

Defendants: (1) violated her Fourteenth Amendment Due Process rights; (2) violated her 

Fourteenth Amendment Equal Protection rights; (3) violated her First Amendment rights to 

freedom of speech and political association; (4) discriminated against her because of her race; (5) 

discriminated against her because of her age; (6) discriminated against her because of her race;2

and (7) retaliated against her for pursuing protected activities (Doc. 1).3 Defendants 

subsequently filed this Partial Motion to Dismiss (Docs. 7, 10); Langford filed a response (Doc. 

13) to which the Defendants have replied (Doc. 14).

The Court notes, initially, that “[w]hen considering a motion to dismiss, all facts set forth 

in the plaintiff’s complaint ‘are to be accepted as true and the court limits its consideration to the 

pleadings and exhibits attached thereto.’” Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 

(11th Cir. 2000) (quoting GSW, Inc. v. Long County, 999 F.2d 1508, 1510 (11th Cir. 1993)). In 

order to state a claim for relief, the Federal Rules of Civil Procedure state that a pleading must 

contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” 

Fed. R. Civ. P. 8(a)(2). The U.S. Supreme Court explained that the purpose of the rule was to 

“give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it 

rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957).4 While factual allegations do not have to be 

detailed, they must contain more than “labels and conclusions;” “a formulaic recitation of the 

elements of a cause will not do.” Bell Atlantic Corporation v. Twombley, 550 U.S. 544, 555 

 2

Langford’s fourth claim was brought under Title VII while the sixth claim was brought pursuant 

to 42 U.S.C. § 1981.

3

Claims one through six were brought against all Defendants; Defendant Crawford was not 

named in the seventh claim.

4

Though Conley was overruled on other grounds, see Bell Atlantic Corporation v. Twombley, 550 

U.S. 544, 557-563 (2007), the Court, nevertheless, finds Conley’s statement regarding the purpose of 

Rule 8(a)(2) to be useful in deciphering the analysis necessary for evaluating Plaintiff’s claims.

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(2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be 

enough to raise a right to relief above the speculative level.” Id. (citations omitted). “Facts that 

are ‘merely consistent with’ the plaintiff’s legal theory will not suffice when, ‘without some 

further factual enhancement [they] stop short of the line between possibility and plausibility of 

“entitle[ment] to relief.”’” Weissman v. National Association of Securities Dealers, Inc., 500 

F.3d 1293, 1310 (11th Cir. 2007) (quoting Twombley, 550 U.S. 557) (quoting DM Research, Inc. 

v. College of American Pathologists, 170 F.3d 53, 56 (1st Cir. 1999)). “Only a complaint that 

states a plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 

679 (2009) (citing Twombley, 550 U.S. at 556). “Where the well-pleaded facts do not permit the 

court to infer more than the mere possibility of conduct, the complaint has alleged—but it has 

not ‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting 

Fed.R.Civ.P. 8(a)(2)). As noted by the Supreme Court, Plaintiffs must “nudge[] their claims 

across the line from conceivable to plausible[; otherwise,] their complaint must be dismissed.” 

Twombly, 550 U.S. at 570. It is noted, however, that a complaint may be dismissed, under 

Federal Rule of Civil Procedure 12(b)(6), “on the basis of a dispositive issue of law.” Executive 

100, Inc. v. Martin County, 922 F.2d 1536, 1539 (11th Cir.) (citing Neitzke v. Williams, 490 U.S. 

319 (1989)), cert. denied, 502 U.S. 810 (1991). 

Defendants first seek dismissal of a portion of Langford’s third claim, a claim that 

Defendants violated her First Amendment right to freedom of political association.5 They argue 

that her work as Chief Clerk of the Probate Court is a political patronage job and that dismissal is 

not unconstitutional on that basis (Doc. 10, pp. 4-6). As support for that argument, Defendants 

 5

Defendants acknowledge that they have not moved to dismiss Lankford’s freedom of speech 

claim (Doc. 14, p. 1 n.1).

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have cited two different Alabama statutes, the first of which defines the powers of the probate 

court chief clerk:

(a) The chief clerk shall have the following powers:

(1) To issue letters testamentary, of administration and of 

guardianship, where there is no contest.

(2) To administer oaths relating to the business of the court 

and to take and certify acknowledgments and proof of instruments 

authorized to be recorded.

(3) To solemnize matrimony, approve bonds and appoint 

guardians ad litem.

(4) To admit wills to probate and record and to pass and 

allow accounts of executors, administrators and guardians, where 

there is no contest.

(5) To do all other acts and things and perform all other 

duties, ministerial and judicial, where there is no contest, that the 

probate judge may do and perform.

(b) All of the official acts of such chief clerk must be performed in 

the name of the probate judge, except when there is a vacancy in 

that office.

Ala. Code § 12-13-14. The second statute states as follows:

Whenever a vacancy shall occur in the office of the probate 

judge, the chief clerk in that office, appointed and qualified as 

authorized by law, shall, during such vacancy and until the 

qualification of a lawful successor, perform all the duties of that 

office which he is authorized by law to perform when there is no 

vacancy, but must not receive money on decrees or executions or 

become the custodian of trust funds pertaining to the court. He 

may make all necessary orders for the continuances of cases and 

proceedings pending in the court.

All such duties are to be performed, during such vacancy, 

by such chief clerk in his own name as clerk of the probate court, 

and he is entitled to the lawful fees therefor. For his official acts

under this article, such chief clerk and the sureties on his bond to 

the probate judge shall be liable to persons injured according to the 

legal effect of official bonds as declared by statute.

Ala. Code § 12-13-15. 

The Court notes that the chief clerk’s responsibilities, listed in the first statute, do not 

include discretionary duties; specifically, three subsections of the first section of the statute 

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preclude the clerk from performing certain tasks if the parties have a dispute. In the second 

statute, the chief clerk gains no responsibilities when the judge’s position is vacant; rather, the 

clerk is allowed to order that whatever work arises—other than what the clerk already has the 

authority to do—be continued. These statutes do not provide support for the Defendants’ 

argument that the chief clerk is the alter ego of the probate judge.

The Court further finds that the cases cited by Defendants do not lend support to their 

argument. In one such case, the Eleventh Circuit Court of Appeals held that a deputy sheriff is 

the alter ego of the sheriff. Terry v. Cook, 866 F.2d 373, 377 (11th Cir. 1989) (citing Mosely v. 

Kennedy, 17 So.2d 536, 537 (Ala. 1944)). The Terry Court further noted, though, that “[a]ny 

transaction within the scope of the sheriff’s duties may be acted upon by his deputy,” Terry, 866 

F.2d at 377 (citing Ramsey v. Strobach, 52 Ala. 513, 515 (1875)).

Under Terry, the deputy can do anything the sheriff can do. However, the chief clerk is 

restricted from doing everything that the probate judge can do by statute. This does not further 

Defendants’ argument.

Defendants also cite Underwood v. Harkins, 698 F.3d 1335, 1343-44 (11th Cir. 2012), 

cert. denied, --- U.S. ---, 134 S. Ct. 99 (2013), in which the Eleventh Circuit Court of Appeals 

held that a deputy superior court clerk performed the identical tasks as the court clerk and that 

the clerk could dismiss the deputy clerk from that position for having run against the clerk in the 

political party’s primary election. Again, however, the duties of the two positions were the 

same; that is not the circumstance in this action. More significant though is the fact that 

Underwood is a case based on Georgia law; Defendants have failed to demonstrate the relevance 

of Georgia law to this action.

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Defendants’ Motion to Dismiss (Doc. 7) is due to be denied as to Langford’s third claim. 

Defendants have not even argued—much less demonstrated—that Langford has failed to set out 

the necessary facts to proceed with her claim that Defendants violated her First Amendment right 

to freedom of political association. Instead, Defendants have attempted to prove that Langford’s 

claim is not viable as a matter of law. However, the laws brought forth to support their 

argument, if anything, provide support for Plaintiff’s argument that this claim should not be 

dismissed.

Defendants also seek to have the Court dismiss Plaintiff’s claim that her due process 

rights were violated. The first argument raised is that Langford did not have a property interest 

in her job (Doc. 10, pp. 6-9). 

The United States Supreme Court has noted that the “Fourteenth Amendment’s 

procedural protection of property is a safeguard of the security of interests that a person has 

already acquired in specific benefits.” Board of Regents of State Colleges v. Roth, 408 U.S. 564, 

576 (1972). The Court went on to hold that “[p]roperty interests [] are not created by the 

Constitution. Rather they are created and their dimensions are defined by existing rules or 

understandings that stem from an independent source such as state law-rules or understandings 

that secure certain benefits and that support claims of entitlement to those benefits.” Board of 

Regents, 408 U.S. at 577. The Court notes that “State law defines the parameters of a plaintiff’s 

property interest for section 1983 purposes. ‘Whether state law has created a property interest is 

a legal question for the court to decide.’” Mackenzie v. City of Rockledge, 920 F.2d 1554, 1559 

(11th Cir. 1991) (quoting Marine One, Inc. v. Manatee County, 877 F.2d 892, 894 (11th Cir. 

1989), rehearing denied, 898 F.2d 1490 (11th Cir. 1990)). 

As for Alabama law, the Alabama Supreme Court has stated the following:

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It has long been the law in Alabama that employment is 

terminable at will by either party for any reason unless there is an 

express and specific contract for lifetime employment or 

employment for a specific duration. “[A]bsent an agreement on a 

definite term, any employment is considered to be ‘at-will,’ and 

may be terminated by either party, with or without cause or 

justification.” Clark v. America's First Credit Union, 585 So.2d 

1367, 1369 (Ala. 1991). Furthermore, employees in Alabama bear 

a heavy burden of proof to establish that an employment 

relationship is other than “at will.” The law considers lifetime or 

permanent employment contracts to be extraordinary and not 

lightly to be implied. Alabama Mills, Inc. v. Smith, 237 Ala. 296, 

301, 186 So. 699, 704 (1939).

Howard v. Wolff Broadcasting Corp., 611 So. 2d 307, 310-11 (Ala. 1992), cert. denied, 507 U.S. 

1031 (1993). The Alabama Supreme Court has gone on to say that

three elements must be shown to establish that an employment 

contract is one other than one terminable at will: (1) that there was 

a clear and unequivocal offer of lifetime employment or 

employment of definite duration; (2) that the hiring agent had 

authority to bind the principal to a permanent employment 

contract; and (3) that the employee provided substantial 

consideration for the contract separate from the services to be 

rendered.

Hoffman-La Roche, Inc. v. Campbell, 512 So. 2d 725, 728 (Ala. 1987) (citations omitted). 

However, the Hoffman-La Roche Court went on to hold that

the language contained in a handbook can be sufficient to 

constitute an offer to create a binding unilateral contract. The 

existence of such a contract is determined by applying the 

following analysis to the facts of each case: First, the language 

contained in the handbook must be examined to see if it is specific 

enough to constitute an offer. Second, the offer must have been 

communicated to the employee by issuance of the handbook, or 

otherwise. Third, the employee must have accepted the offer by 

retaining employment after he has become generally aware of the 

offer. His actual performance supplies the necessary 

consideration.

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Hoffman-La Roche, 512 So. 2d at 735. The Parties acknowledge that Langford was given a 

handbook by her employer (Doc. 10, p. 8; Doc. 13. pp. 3-4). The Court will review the 

handbook, entitled Hale County Personnel Policy, to determine if a binding unilateral contract 

was created (see Doc. 10, Exhibit A).6 The Court notes the following language:

“Each employee will be given a copy of his/her job 

description and an Employees Handbook, outlining all rules, 

regulations, policies, conditions, and benefits of County Employee 

employment. Both employee and management/supervisory staff 

will be required to know and productively implement all 

provisions and conditions of employment.” Section II, ¶ D.

“All employees have the right to discuss any and all matters 

relating to their employment and/or their personal welfare with 

their supervisors. They may communicate with their supervisors, 

either orally or in writing, and may be accompanied by 

representation of their choice. When disagreement over the 

solution of a problem cannot be resolved, permanent employees 

shall have access, through a grievance procedure, to successively 

higher levels of management. Management/supervisory personnel 

will produce resolution of problems and grievances, attempting 

always to ensure every permanent employee the right to due 

process under the grievance procedure.” Section II, ¶ F.

“The County believes that the goal of productivity in 

county employment will be served by establishing a probationary 

period for new employees during which each employee is oriented 

to all the conditions and requirements of county work and during 

which his/her performance is closely supervised and monitored to 

assure the attainment of the minimum performance requirements 

for the job/position. Probationary employees shall share in all the 

benefits of employment with the county except that dismissals for 

cause during the probationary period shall not be grievable.” 

Section II, ¶ I.

“Employees are expected to attend work regularly, arriving 

in time and spending the assigned time in productive work efforts. 

They are also expected to deal honestly, fairly and efficiently with 

the County’s resources and citizens. When employees cannot or 

 6 Defendants provided several pages of the handbook, including the title page. Plaintiff submitted 

a larger portion of the handbook, though, so the Court will cite to Langford’s submission (Doc. 13, 

Exhibit A).

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will not conform to the Personnel Rules and Regulations as 

outlined herein, they may be disciplined in the following ways:

1. Verbal Reprimand: a notification of 

which will be placed in the

personnel file;

2. Written Reprimand: a copy will be 

placed in the personnel file. The

employee will also be given a copy

of the written reprimand;

3. Suspension: for up to ten (10) 

consecutive working days.

Suspensions of an aggregate of 

twenty-five (25) days in any 

calendar year (dating from the 

first suspension) will result in

termination. Suspensions are 

without pay.

4. Demotion and Reduction in Pay;

5. Transfer;

6. Termination;

Steps 4, 5 and 6 shall be only with the concurrence of the 

County Engineer. An appeal can be made following the steps in 

grievance procedure.

The following are among the actions or circumstances 

which are considered to be grounds for disciplinary action:

: Chronic absenteeism

: Failure or refusal to carry out the

duties of the job

: Refusal to obey a lawful order from a

superior

: Failure to follow established lines of

authority in a grievance

: Willful or wanton destruction or damage

of County property or equipment. Section VII.

Doc. 13, Exhibit A. The Handbook also sets out a grievance procedure, allowing a disciplined 

employee to seek review of the disciplinary action by the Personnel Review Board and the 

County Commission (Doc. 13, Exhibit A, p. 8).

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The Court finds that, for purposes of this Motion, these few passages indicate that a 

binding unilateral contract was formed under Hoffman-La Roche because of the following 

factors. The handbook discusses permanent versus probationary employees; though neither is 

defined, Langford was, presumably, a permanent employee as she was employed in her position 

for six years (Doc. 1, ¶ 8). Langford received an employee handbook and continued to work. As 

found in Hoffman-La Roche, 

the language used in this handbook is clear enough than an 

employee reading it could reasonably believe that, as long as [s]he 

worked within the guidelines set out in the handbook, [s]he would 

not be terminated until all procedures set out in the handbook had 

been followed, including the reasons and circumstances for 

termination in the handbook. 

Hoffman-La Roche, 512 So. 2d at 736-37. With this finding, the Court further holds that 

Langford has established a property interest in her employment. 

This finding brings the Court to Defendants’ second argument with regard to this claim. 

That assertion is that even if Langford had a property interest in her continued employment, she 

cannot state a claim against Defendants for violating her due process rights (Doc. 10, pp. 9-11). 

Langford’s Complaint asserts that even though there was a grievance process set out in 

her employee Handbook, she appealed to the Hale County Commission and that it acted “without 

providing any notice [] that it was considering the grievance or providing her with an opportunity 

to defend herself” (Doc. 1, ¶ 34). She goes on to state that she timely appealed to the Personnel 

Review Board whose members were biased against her (Doc. 1, ¶¶ 35-36). In setting out the 

specific contours of her due process claim, Langford asserts that she was not “provided with 

notice or an opportunity to be heard on her grievance” (Doc. 1, ¶ 42). 

The Court notes that step three of the grievance procedure, found in the Handbook, 

allows an employee to appeal a disciplinary action to the Personnel Review Board and indicates 

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that the employee can attend the proceeding and have representation (Doc. 13, Exhibit A, p. 8). 

The written recommendation of that Board goes to the County Commission, at step four of the 

process, which accepts or modifies the recommendation and adopts it or rejects the 

recommendation altogether (Doc. 13, Exhibit A, p. 8).

While Langford’s chronology of events does not correspond to the grievance procedure 

steps, there is a clear assertion that Lankford did not get to be heard on her grievance as provided 

for in the Handbook. The Court finds that Langford has asserted sufficient facts to demonstrate 

that she was denied the process offered by her employer following her termination. This does 

not, however, end the inquiry.

Defendants have staked their argument on McKinney v. Pate, 20 F.3d 1550, 1561 (11th

Cir. 1994) (en banc), cert. denied sub nom. McKinney v. Osceola County Board of County 

Commissioners, 513 U.S. 1110 (1995), in which the Eleventh Circuit Court of Appeals held that 

a claim of bias, such as this, was a procedural due process claim—as opposed to a substantive

due process claim—since “the County failed to provide one of the elements of procedural due 

process—an unbiased decisionmaker.” The McKinney Court went on to hold that the plaintiff in 

that case had not stated a procedural due process claim under § 1983, however, because state law 

provided an adequate remedy through the Florida court system. McKinney, 20 F.3d at 1563-64. 

Defendants argue that Alabama also provides a remedy at law through its courts (Doc. 

10, p. 10). Indeed, the Eleventh Circuit Court of Appeals held that Alabama courts “review 

employment termination proceedings both to determine whether they are supported by 

substantial evidence and to see that the proceedings comport with procedural due process.” Bell 

v. City of Demopolis, Alabama, 86 F.3d 191, 192 (1996) (citing Ex Parte Tuskegee, 447 So.2d 

713 (Ala. 1984); Guinn v. Eufaula, 437 So.2d 516 (Ala. 1983)). In Alabama, a claimant can file 

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a common law writ of certiorari to seek review of a perceived wrongful termination because of a 

due process violation. See Hicks v. Jackson County Commission, 990 So.2d 904, 912 (Ala. Civ.

App. 2008). Accordingly, Defendants’ Motion to Dismiss (Doc. 7) is due to be granted as to 

Langford’s claim that she was denied due process in her post-termination proceedings because 

Langford has a remedy for her claim in the state courts. 

However, the motion to dismiss Langford’s claim regarding the defendants’ failure to 

provide a pre-termination due process is due to be denied. Public employment affords 

employees with a property interest in their job certain minimal pre-termination due process 

rights. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985); see also Harrison v. 

Willie, 132 F.3d 679, 683-84 (11th Cir. 1998) (considering whether the plaintiff was denied a 

pre-termination hearing); McCoy v. Alabama Dep’t of Corr., 427 F. App’x 739, 741 (11th Cir. 

2011) (discussing an state employee’s pre-termination due process rights); Ogburia v. Cleveland, 

380 F. App’x 927, 929-30 (11th Cir. 2010) (discussing pre-termination due process separately 

from whether plaintiff had an adequate state remedy for his claim of post-termination due 

process right violation). Thus, if a plaintiff pleads sufficient facts “that suggest [s]he was denied 

any pre-termination hearing, [s]he could state a violation of a clearly established constitutional 

right.” Haddler v. Walker Cnty., Ala., No: 6:14-CV-00586-LSC, 2014 WL 2465322, * 4 (N.D. 

Ala. May 30, 2014). 

The due process that Loudermill calls for does not require that an employee be given a 

full evidentiary hearing. Id. at 545. Instead, the hearing need only serve as “an initial check 

against mistaken decisions—essentially, a determination of whether there are reasonable grounds 

to believe that the charges against the employee are true and support the proposed action.” Id. at 

545-46. An employer can satisfy this requirement by giving “notice and an opportunity [for the 

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employee] to respond.” Id. at 546; Harrison, 132 F.3 at 684 (“The importance of the Plaintiff’s 

property interest makes it necessary to provide some sort of pre-termination hearing, which 

includes notice and an opportunity to be heard.”).

Langford alleges that she was denied due process because Defendants terminated her 

employment without any explanation, notice, or hearing. In response, Defendants allege that the 

State of Alabama provides an adequate post-termination remedy for any deprivation of due 

process that may have occurred. In support of this argument, Defendants cite McKinney and Bell 

as controlling the issue. 

The Defendants’ argument, however, fails to take into consideration the fact that, if 

Langford has a vested property right, as a public employee she has certain pre-termination due 

process rights which cannot be addressed by post-termination processes. “In cases of public 

employment, the Supreme Court has recognized that termination without any pre-termination 

hearing is an independent violation of due process.” Haddler, at *4. This being so, the Court 

finds that McKinney and Bell do not control the issue of whether Defendants satisfied the pretermination due process required by Loudermill. Thus, Langford’s claim is not due to be 

dismissed on the grounds that state law allows a remedy. 

 Finally, Defendants seek this Court’s ruling that Defendant Crawford is entitled to 

qualified immunity in his individual capacity (Doc. 10, pp. 12-15). The Court notes that 

although Defendants assert immunity on Plaintiff’s First and Fourteenth Amendment claims 

(counts one and three), no argument has been made as to Langford’s claim for a violation of her 

Equal Protection rights (count two). 

“Government officials sued for acts committed in the course of their official duties may 

invoke the defense of qualified immunity. To be even potentially eligible for qualified 

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immunity, the official has the burden of establishing that he was acting ‘within the scope of his 

discretionary authority.’” O’Rourke v. Hayes, 378 F.3d 1201, 1205 (11th Cir. 2004) (quoting 

Hartsfield v. Lemacks, 50 F.3d 950, 953 (11th Cir. 1995)). To make this determination, 

[i]nstead of focusing on whether the acts in question involved the 

exercise of actual discretion, we assess whether they are of a type 

that fell within the employee's job responsibilities. Our inquiry is

two-fold. We ask whether the government employee was (a) 

performing a legitimate job-related function (that is, pursuing a 

job-related goal), (b) through means that were within his power to 

utilize. . . . In applying each prong of this test, we look to the 

general nature of the defendant's action, temporarily putting aside 

the fact that it may have been committed for an unconstitutional 

purpose, in an unconstitutional manner, to an unconstitutional 

extent, or under constitutionally inappropriate circumstances.

O’Rourke, 378 F.3d at 1205 (quoting Holloman v. Harland, 370 F.3d 1252, 1266 (11th

Cir. 2004)). 

The Court notes that Langford makes no argument as to whether or not Defendant 

Crawford’s discretionary duties included disciplinary action against her, including termination 

(see Doc. 13, p. 5). As such, the Court finds that his action was discretionary and will continue 

with the analysis.

With this finding, it is Langford’s burden to demonstrate that Judge Crawford is not 

entitled to qualified immunity by showing “that the defendant violated a constitutional right, and 

that the right was clearly established at the time of the alleged violation.” O’Rourke, 378 F.3d at 

1206 (citing Holloman, 370 F.2d at 1266). 

A party may show that the law was clearly established by (1) 

pointing to “‘a materially similar case [that has] already decided 

that what the [Defendant] was doing was unlawful;’” or (2) 

demonstrating that “the words of the pertinent federal statute or 

federal constitutional provision . . . [are] specific enough to 

establish clearly the law applicable to particular conduct and 

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circumstances and to overcome qualified immunity, even in the 

total absence of case law.

Storck v. City of Coral Springs, 354 F.3d 1307, 1317 (11th Cir. 2003) (internal citations omitted). 

The Storck Court went on to note that “‘[u]nless a government agent’s act is so obviously wrong, 

in the light of pre-existing law, that only a plainly incompetent [Defendant] or one who was 

knowingly violating the law would have done such a thing, the government actor has immunity 

from suit.’” Storck, 354 F.3d at 1317-18 (quoting Lassiter v. Alabama A & M University, Board 

of Trustees, 28 F.3d 1146, 1149 (11th Cir. 1994) (en banc). 

The Court has reviewed the case law and found the following relevant discussion in a 

United States Supreme Court case:

As Mr. Justice BRENNAN noted in Elrod, it is not always 

easy to determine whether a position is one in which political 

affiliation is a legitimate factor to be considered. [Elrod v. Burn, 

427 U.S. 347,] 367 [(1980)]. Under some circumstances, a 

position may be appropriately considered political even though it is 

neither confidential nor policymaking in character. As one obvious 

example, if a State's election laws require that precincts be 

supervised by two election judges of different parties, a Republican 

judge could be legitimately discharged solely for changing his 

party registration. That conclusion would not depend on any 

finding that the job involved participation in policy decisions or 

access to confidential information. Rather, it would simply rest on 

the fact that party membership was essential to the discharge of the 

employee's governmental responsibilities.

It is equally clear that party affiliation is not necessarily 

relevant to every policymaking or confidential position. The coach 

of a state university's football team formulates policy, but no one 

could seriously claim that Republicans make better coaches than 

Democrats, or vice versa, no matter which party is in control of the 

state government. On the other hand, it is equally clear that the 

Governor of a State may appropriately believe that the official 

duties of various assistants who help him write speeches, explain 

his views to the press, or communicate with the legislature cannot 

be performed effectively unless those persons share his political 

beliefs and party commitments. In sum, the ultimate inquiry is not 

whether the label “policymaker” or “confidential” fits a particular 

position; rather, the question is whether the hiring authority can 

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demonstrate that party affiliation is an appropriate requirement for 

the effective performance of the public office involved.

Having thus framed the issue, it is manifest that the 

continued employment of an assistant public defender cannot 

properly be conditioned upon his allegiance to the political party in 

control of the county government. The primary, if not the only, 

responsibility of an assistant public defender is to represent 

individual citizens in controversy with the State.

Branti v. Finkel, 445 U.S. 507, 518-19 (1980). 

Having already reviewed the Chief Clerk responsibilities, the Court will examine the 

duties of the Probate Judge. Statutory law sets them out to be as follows:

(b) The probate court shall have original and general jurisdiction 

over the following matters:

(1) The probate of wills. 

(2) The granting of letters testamentary and of 

administration and the repeal or revocation of the same. 

(3) All controversies in relation to the right of executorship 

or of administration. 

(4) The settlement of accounts of executors and 

administrators. 

(5) The sale and disposition of the real and personal 

property belonging to and the distribution of intestate's estates. 

(6) The appointment and removal of guardians for minors 

and persons of unsound mind. 

(7) All controversies as to the right of guardianship and the 

settlement of guardians' accounts. 

(8) The allotment of dower in land in the cases provided by 

law. 

(9) The partition of lands within their counties. 

(10) The change of the name of any person residing in their 

county, upon his filing a declaration in writing, signed by him, 

stating the name by which he is known and the name to which he 

wishes it to be changed. 

(11) Such other cases as jurisdiction is or may be given to 

such courts by law in all cases to be exercised in the manner 

prescribed by law. 

Ala. Code § 12-13-1.

The Court notes that there does not appear to be any duty requiring that the Clerk and 

Probate Judge be of the same political mind to fulfill their respective responsibilities. For this 

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reason, under the guidance of Branti, Defendants’ Motion to find that Defendant Crawford is 

entitled to qualified immunity is due to be denied as to Langford’s third claim.

The same is true for Defendant Crawford’s claim of qualified immunity for Langford’s 

claim of a pre-termination due process rights violation. Loudermill clearly established that a 

public employee with a property right in her employment must be given notice and a hearing 

before she can be terminated. Defendant Crawford makes no argument that any pre-termination 

due process was provided to Langford.

II. Conclusion

In accordance with the foregoing analysis, it is ORDERED that the Defendants’ Partial 

Motion to Dismiss (Doc. 7) is GRANTED as to Langford’s claim in Count I of the Complaint

that she was denied due process in her post-termination proceedings, and is otherwise DENIED.

DONE and ORDERED this the 26th day of June 2014.

/s/ Kristi K. DuBose

KRISTI K. DuBOSE

UNITED STATES DISTRICT JUDGE

Case 2:14-cv-00070-KD-M Document 17 Filed 06/26/14 Page 17 of 17