Barbara A. Brackin v. Kevin J. Anson, 11th Cir. (2014)
Barbara A. Brackin v. Kevin J. Anson, 11th Cir. (2014)
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Case: 14-11180
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Gunn, who is not a plaintiff in this case. The biologist aides documented their
work on daily-activity reports.
For various reasons, Defendants came to suspect that several Marine
Resources employees were failing to perform their assigned duties. Therefore,
Defendants installed Global Positioning System tracking devices known as track
sticks on state-owned vehicles and boats to monitor the movement of these
vehicles during Plaintiffs work hours.
From February 2010 to April or May of that year, Defendants monitored
Plaintiffs using the track sticks and compared that data with Plaintiffs dailyactivity reports for the same period. Defendants discovered discrepancies between
Plaintiffs daily reported activities and the information provided by the track sticks,
so Defendants confronted and interrogated Plaintiffs about the discrepancies. After
the interrogations, Defendants recommended to then-Director of Marine Resources
Vernon Minton and Department Commissioner Barnett Lawley that Plaintiffs be
terminated.
Then,
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that the tracking data did not accurately reflect Gunns actual activity on the day in
question. Thereafter, Gunn was demoted, but he was allowed to remain employed
with the Department.
After a joint pre-termination conference at which Plaintiffs submitted
evidence that the track sticks were unreliable, Commissioner Lawley notified
Plaintiffs that their employment was being terminated. Plaintiffs appealed their
terminations to the Alabama State Personnel Board (Personnel Board), which
upheld their terminations. Before their terminations, Plaintiffs had no disciplinary
record and received positive annual performance reviews.
II.
Plaintiffs filed suit in state court against Defendants, who, in turn, removed
the case to the United States District Court for the Middle District of Alabama.
Plaintiffs complaint asserted five counts against Defendants in both their
individual and official capacities: (1) denial of equal protection under the
Fourteenth Amendment, 42 U.S.C. 1983; (2) denial of due process under the
Fourteenth Amendment, 1983; (3) conspiracy to violate civil rights, 42 U.S.C.
1985; (4) state-law defamation; and (5) state-law civil conspiracy.
Plaintiffs
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We therefore deem abandoned all other issues and claims raised before the district
court. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).
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Although Plaintiffs technically are correct that the district court disposed of only the
individual-capacity equal-protection claims on the basis of abandonment, concluding that all
federal-law official-capacity claims were barred by Eleventh Amendment Immunity, our
independent review of the record shows that Plaintiffs equal-protection claims, in their entirety,
were abandoned at summary judgment.
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B.
Even if we were to find that Plaintiffs equal-protection claims were
properly before us, whether asserted against Defendants in their individual or
official capacities, the claims fail for the more fundamental reason that the
Supreme Court has held that class-of-one equal-protection claims are unavailable
in the public-employment context.
Plaintiffs, who were all public employees, do not contend that they were
discriminated against on the basis of a protected class, but rather that they were
irrationally treated differently than a similarly situated employee. The Supreme
Court recognized the general viability of this type of equal-protection claim,
referred to as the class-of-one theory of equal protection, in Village of
Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073 (2000). Essentially,
[w]hen those who appear similarly situated are nevertheless treated differently,
the Equal Protection Clause requires at least a rational reason for the difference.
Engquist v. Or. Dept of Agric., 553 U.S. 591, 602, 128 S. Ct. 2146 (2008).
In Engquist, however, the Supreme Court addressed the issue presented in
this case: whether a public employee can state a claim under the Equal Protection
Clause based on the allegation that she was treated differently than a similarly
situated employee, without an assertion that the different treatment resulted from
the employees membership in a particular class. Id. at 594, 128 S. Ct. 2146. The
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But the Court ultimately did not base its decision on whether public
Id.
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