Ex parte Hugine, [Ms. 1130428, Mar. 17, 2017] __ So. 3d __ (Ala. 2017). In this 75-page opinion, the full Court (Murdock, J., and Stuart, Bolin, Main, Wise, and Bryan, JJ., concur; Parker, J., concurs in part and concurs in the result; Shaw, J., concurs in the result) grants a petition for a writ of mandamus and directs the Madison Circuit Court to enter summary judgment in favor of an administrator at Alabama A&M on the bases of qualified immunity relative to retaliation claims premised upon alleged violations of a tenured professor’s free-speech and free-association rights and on the bases of state-agent immunity relative to the professor’s state-law claims alleging wrongful termination, fraud and tortious interference with a contractual relationship.
As to the qualified immunity analysis, the opinion borrows heavily from United States and Eleventh Circuit precedent:
“Qualified immunity offers complete protection for individual public officials performing discretionary functions ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Sherrod v. Johnson, 667 F.3d 1359, 1363 (11th Cir. 2012) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
“In Saucier [v. Katz,] 533 U.S. 194, 121 S.Ct. 2151 [(2001)], this Court mandated a two-step sequence for resolving government officials’ qualified immunity claims. First, a court must decide whether the facts that a plaintiff has alleged (see Fed. Rules Civ. Proc. 12(b)(6), (c)) or shown (see Rules 50, 56) make out a violation of a constitutional right. 533 U.S., at 201, 121 S.Ct. 2151. Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct. Ibid. Qualified immunity is applicable unless the official’s conduct violated a clearly established constitutional right. Anderson [v. Creighton, 483 U.S. 635,] 640, 107 S.Ct. 3034 [(1987)].”
Pearson v. Callahan, 555 U.S. 223, 232 (2009).
Ms. *31. However, before engaging in any qualified immunity analysis, the reviewing court must first ascertain whether the official was engaged in a discretionary function when performing the acts of which the plaintiff complains. Ms. *32, citing Holliman v. Harland, 370 F.3d 1252 (11th Cir. 2004). That 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.” Ms. *32, quoting Holliman v. Harland, 370 F.3d at 1265. This analysis entails the following:
“Instead 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. ...
“Consider the first prong of the test – whether the official is engaged in a legitimate job-related function. In Sims v. Metropolitan Dade County, 972 F.2d 1230 (11th Cir. 1992), ‘we did not ask whether it was within the defendant’s authority to suspend an employee for an improper reason; instead, we asked whether [the defendant’s] discretionary duties included the administration of discipline.’ Harbert [Int’l., Inc. v. James], 157 F.3d  at 1282 [(11th Cir. 1998)]. ... Put another way, to pass the first step of the discretionary function test for qualified immunity, the defendant must have been performing a function that, but for the alleged constitutional infirmity, would have fallen with his legitimate job description.
“After determining that an official is engaged in a legitimate job-related function, it is then necessary to turn to the second prong of the test and determine whether he is executing that job-related function – that is, pursuing his job-related goals – in an authorized manner. ... Each government employee is given only a certain ‘arsenal’ of powers with which to accomplish her goals. For example, it is not within a teacher’s official powers to sign her students up for the Army to promote patriotism or civic virtue, or to compel them to bring their property to school to redistribute their wealth to the poor so that they can have firsthand experience with altruism.”
370 F.3d at 1265, 1266-67 (some emphasis added).
Ms. *33-34. Once a defendant establishes that he/she was engaged in a discretionary function at the time of the act in question, the burden shifts to the plaintiff to show that the defendant is not entitled to summary judgment on qualified immunity ground. Ms. *34. “To do so, the plaintiff must demonstrate that a reasonable jury could interpret the evidence in the record as showing that the defendant violated a constitutional right that was clearly established at the time of the acts in question.” Ms. *34-35, quoting Holliman, 370 F.3d at 1267.
Evaluating whether a government official violates free-speech rights of a government employee for purposes of this test involves its own special analysis stemming from Pickering v. Board of Education of Township High School District 205, 391 U.S. 563 (1968) as explained in Boyce v. Andrew, 510 F.3d 1333 (11th Cir. 2007):
“Following Pickering, our analysis of retaliation against an employee by a government employer for alleged constitutionally protected speech has been comprised of four parts:
“‘To prevail under this analysis, an employee must show that: (1) the speech involved a matter of public concern; (2) the employee’s free speech interests outweighed the employer’s interest in effective and efficient fulfillment of its responsibilities; and (3) the speech played a substantial part in the adverse employment action. If an employee satisfies her burden on the first three steps, [(4)] the burden then shifts to the employer to show by a preponderance of the evidence that it would have made the same decision even in the absence of the protected speech.’”
Ms. *35-36, quoting Boyce v. Andrew, 510 F.3d at 1342, n. 12, quoting Cook v. Gwinnett Cty. Sch. Dist., 414 F.3d 1313, 1318 (11th Cir. 2005). In the end, in this case the Court relied upon Foy v. Holston, 94 F.3d 1528 (11th Cir. 1996) in concluding that “state officials can act lawfully even when motivated by a dislike or hostility to certain protected behavior by a citizen.” Ms. *39. The Court holds that a “state official can act lawfully despite having discriminatory intent where the record shows that they would have acted as they, in fact, did act even if they had lacked discriminatory intent.” Id. Because the record established that the administrators were concerned with budgetary constraints at the time they made their decisions terminating the employment of the plaintiff and others, they were entitled to qualified immunity even if they acted with some discriminatory intent. The Court therefore embraces the holding of Rioux v. City of Atlanta, 520 F.3d 1269, 1282-83 (11th Cir. 2008) that
at least when an adequate lawful motive is present, that a discriminatory motive might also exist does not sweep qualified immunity from the field even at the summary judgment stage. Unless it, as a legal matter, is plain under the specific facts and circumstances of the case that the defendant’s conduct – despite his having adequate lawful reasons to support the act – was the result of his unlawful motive, the defendant is entitled to immunity. ...
Ms. *46. This holding is in keeping with the general principles underlying the doctrine of qualified immunity:
“When public officials do their jobs, it is a good thing. Qualified immunity is a real-world doctrine designed to allow local officials to act (without always erring on the side of caution) when action is required to discharge the duties of public office. See Davis v. Scherer, 468 U.S. 183, 196, 104 S.Ct. 3012, 3020, 82 L.Ed.2d 139 (1984) (‘[O]fficials should not always err on the side of caution.’). For many public servants, a failure to act can have severe consequences for the citizenry. ...
“As we decide this case, we cannot forget the purpose of qualified immunity. The qualified immunity defense functions to prevent public officials from being intimidated – by the threat of lawsuits which jeopardize the official and his family’s welfare personally – from doing their jobs. Qualified immunity can be a muscular doctrine that impacts on the reality of the workaday world as long as judges remember that the central idea is this pragmatic one: officials can act without fear of harassing litigation only when they can reasonably anticipate – before they act or do not act – if their conduct will give rise to damage liability for them.”
Ms. *50, quoting Foy, 94 F.3d at 1534.
With respect to the state-agent immunity analyses, the Court recognizes first that “[t]he dismissal of a public employee who is entitled to a pre-termination hearing, without such a hearing, is a wrongful act constituting a tort under Alabama law.” Ms. *56, quoting Hardric v. City of Stevenson, 843 So. 2d 206, 210 (Ala. Civ. App. 2002). Here, however, because the evidence supported a finding that the administrators violated no rule, regulation, policy, or procedure in determining that the professor was not in fact tenured and therefore not entitled to a pre-termination hearing, they were engaged in doing their jobs as state-school officials and entitled to state-agent immunity as to this particular claim.
The Court next restates the requirements for fraudulent suppression:
“In order to establish a prima facie claim of fraudulent suppression, a plaintiff must produce substantial evidence establishing the following elements:
“‘“(1) that the defendant had a duty to disclose an existing material fact; (2) that the defendant suppressed that existing material fact; (3) that the defendant had actual knowledge of the fact; (4) that the defendant’s suppression of the fact induced the plaintiff to act or to refrain from acting; and (5) that the plaintiff suffered actual damage as a proximate result.”’”
Ms. *63, quoting Johnson v. Sorensen, 914 So. 2d 830, 837 (Ala. 2005) (quoting Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So. 2d 1143, 1161 (Ala. 2003), quoting in turn State Farm Fire & Cas. Co. v. Slade, 747 So. 2d 293, 323-24 (Ala. 1999)). Here, no evidence supported any duty to speak on the part of the administrators, thus the administrators were entitled to state-agent immunity as to this claim as well.
Finally, the Court restated the essential elements of intentional interference with contractual or business relations claim:
“(1) the existence of a protectible business relationship; (2) of which the defendant knew; (3) to which the defendant was a stranger; (4) with which the defendant intentionally interfered; and (5) damage.” White Sands Grp., L.L.C. v. PRS II, LLC, 32 So. 3d 5, 14 (Ala. 2009). Our courts also have stated:
“An employee who desires to maintain a suit against a coworker for intentional interference with the employee’s employment contract must also‘“show that the [coworker] acted outside [his or her] scope of employment and did so maliciously.”’ Hanson v. New Technology, Inc., 594 So. 2d 96, 103 (Ala. 1992) (quoting Hickman v. Winston County Hosp. Bd., 508 So. 2d 237, 241 (Ala. 1987) (Adams, J., concurring specially)). Further, in order to show malice the plaintiff must ‘“make a strong showing of a pattern of interference.”’ Perlman v. Shurett, 567 So. 2d 1296, 1299 (Ala. 1990) (quoting Hickman, 508 So.2d at 241 (Adams, J., concurring specially)).”
Ms. *69-70, quoting Michelin Tire Corp. v. Goff, 864 So. 2d 1068, 1077 (Ala. Civ. App. 2002). Here again the evidence was insufficient to meet the required elements and in particular there was no showing of any pattern of interference, so the administrators were entitled to state-agent immunity with respect to this claim, too.