                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               JULY 28, 2009
                                No. 08-17243                 THOMAS K. KAHN
                            Non-Argument Calendar                 CLERK
                          ________________________

                      D. C. Docket No. 08-00015-CV-T-N

MICHAEL HARDY,

                                                              Plaintiff-Appellant,

                                     versus

J. WALTER WOOD, JR.,
Individually and in his official capacity as
Executive Director of Alabama Department of
Youth Services,

                                                             Defendant-Appellee.

                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Alabama
                        _________________________

                                 (July 28, 2009)

Before CARNES, HULL and FAY, Circuit Judges.

PER CURIAM:

      Michael Hardy, pro se, appeals the grant of summary judgment in favor of J.
Walter Wood, Jr., the Executive Director of the Alabama Department of Youth

Services (“DYS”). Hardy’s complaint alleged First Amendment retaliation and

procedural due process claims, pursuant to 42 U.S.C. § 1983, and a state law claim

of fraud, all stemming from his termination from his position as a DYS counselor.

After review, we affirm.

                               I. BACKGROUND FACTS

A.     Sexual Harassment Complaint Against Hardy

       In June 2005, DYS employee, Tera McMillian (“McMillian”), complained

that Hardy, her supervisor, had sexually harassed her. DYS’s Personnel Manager,

Debra Spann, investigated McMillian’s complaint and interviewed Hardy on June

28, 2005. During the taped interview, Spann and Hardy discussed two incidents

that McMillian alleged were sexual harassment.

       On July 14, 2005, while Spann’s investigation was pending, Hardy filed a

grievance against McMillian. Hardy complained that McMillian had made

unsubstantiated derogatory statements about him and had encouraged other

employees to file false charges against him.1 Hardy filed the grievance because he

felt he was being “set up” during Spann’s investigation.

       On July 19, 2005, Spann advised Defendant Wood by letter that she had


       1
       Although a copy of the grievance is not in the record, the parties agree that these were
Hardy’s allegations.

                                                2
completed her investigation and found McMillian’s sexual harassment complaint

valid. Spann recommended that Hardy be disciplined.

      On November 4, 2005, Defendant Wood sent Hardy a letter informing

Hardy of Spann’s recommendation. Wood advised Hardy that he was alleged “to

have made sexual advances and/or to have created a hostile working environment”

for McMillian and “to have attempted, among other things, to cause an

investigation against [McMillian] for her having filed a complaint against [him].”

Defendant Wood specified that Hardy allegedly had violated State Personnel Board

rules prohibiting disruptive conduct, use of abusive language, the serious violation

of departmental rules and sexual harassment. Wood cited the respective rule

numbers.

      Defendant Wood also notified Hardy that a hearing on the alleged violations

would be held on November 10, 2005, and that Hardy could be represented by an

attorney and present witnesses and other evidence. Wood explained that he would

review the evidence presented at the hearing and make a decision regarding

disciplinary action.

B.    Disciplinary Hearing

      The hearing, held on November 15, 2005, was conducted by Marcia

Calendar, DYS’s Assistant Director. Hardy was represented by counsel, who



                                          3
submitted numerous documents and presented the testimony of eight witnesses.

Afterward, in a December 8, 2005 letter, DYS Assistant Director Calendar advised

Defendant Wood that she found the allegations against Hardy were substantiated

and recommended that Hardy’s employment be terminated.

      On January 6, 2006, Defendant Wood advised Hardy by letter that (1) the

evidence presented at the November 2005 hearing supported a finding that Hardy

had violated the Rules of the State Personnel Board, again listing each rule by

number, and (2) Hardy was terminated and had ten days to request a hearing with

the Alabama State Personnel Board.

C.    ALJ Hearing

      At Hardy’s request, a hearing was held on May 8 and June 10, 2006, before

an Administrative Law Judge (“ALJ”) with the Alabama Department of Personnel.

Hardy was represented by counsel, who introduced exhibits and called witnesses.

Hardy testified that he had filed the grievance against McMillian because

McMillian asked other staff members to say negative things about him during

Spann’s sexual harassment investigation.

      Following the hearing, the ALJ prepared a recommended order finding that,

although Hardy’s inappropriate comments to McMillian warranted only discipline,

his impermissible use of the grievance process to retaliate against McMillian for



                                           4
filing a sexual harassment complaint warranted termination. On October 17, 2007,

the State Personnel Board adopted the ALJ’s factual findings and legal conclusions

and affirmed Hardy’s dismissal.2

D.     This Civil Action

       Hardy, represented by counsel, filed this action in state court. After

Defendant Wood removed the action to federal court, Wood moved for summary

judgment on all claims. The district court granted Wood’s motion for summary

judgment on Hardy’s First Amendment retaliation, federal procedural due process

and state law fraud claims. Subsequently, the district court denied Hardy’s motion

to alter or amend the judgment as to his procedural due process claim, filed

pursuant to Federal Rule of Civil Procedure 59(e). Hardy filed this appeal pro se.

                                    II. DISCUSSION

A.     Summary Judgment Order

       On appeal, Hardy argues that the district court erred in granting summary

judgment on his constitutional claims.3 The district court concluded that


       2
        Hardy appealed his dismissal to the Circuit Court of Montgomery, which reversed the
State Personnel Board’s order and reinstated him. However, since the district court’s summary
judgment order, the Alabama Court of Civil Appeals has reversed the Circuit Court and
concluded that substantial evidence supports the State Personnel Board’s determination. See
Ala. State Pers. Bd. v. Hardy, ___ So. 2d ___, No. 2070589, 2008 WL 5424073, at *10-13 (Ala.
Civ. App. Dec. 31, 2008).
       3
       We review de novo a district court’s ruling on summary judgment. Baker v.
Birmingham Bd. of Educ., 531 F.3d 1336, 1337 (11th Cir. 2008). The moving party is entitled

                                              5
Defendant Wood was entitled to qualified immunity on these claims because

Hardy had not presented any evidence that Wood had violated Hardy’s First

Amendment or due process rights in terminating him. See Lewis v. City of West

Palm Beach, 561 F.3d 1288, 1291 (11th Cir. 2009) (explaining that a public officer

acting within his discretionary authority is entitled to qualified immunity if the

district court concludes either that there was no constitutional violation or that the

constitutional right allegedly violated was not clearly established). We agree.

       To establish a claim of First Amendment retaliation, a public employee must

show that his speech was protected by the First Amendment, that is, that he was

speaking “as a citizen on a matter of public concern.” Battle v. Bd. of Regents for

Ga., 468 F.3d 755, 760 (11th Cir. 2006) (quotation marks omitted). Hardy did not

present any evidence that he was speaking as a citizen on a matter of public

concern when he filed his grievance. The undisputed evidence shows that Hardy

filed his internal grievance with Spann, DYS’s Personnel Manager, to complain

about the way in which the sexual harassment investigation against him was being

conducted. At the November 15, 2005 pre-termination hearing, Hardy himself




to summary judgment “if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In deciding whether summary
judgment is appropriate, we view all facts and reasonable inferences in favor of the non-moving
party. Baker, 531 F.3d at 1337.

                                               6
described his grievance as addressing a “job-related” dispute and explained that he

filed the grievance because he thought the investigation against him was unfair.

       Hardy argues that his grievance bore on a matter of public concern because

permitting one of his subordinates to pursue a baseless sexual harassment claim

against him would undermine his ability to supervise other employees. In other

words, Hardy contends that he pursued his grievance to maintain discipline and

order at a public institution. However, “[a] public employee may not transform a

personal grievance into a matter of public concern by invoking a supposed popular

interest in the way public institutions are run.” Boyce v. Andrew, 510 F.3d 1333,

1344 (11th Cir. 2007) (concluding that welfare workers’ job-related complaints to

supervisor did not address matter of public concern) (quotation marks omitted).

Because Hardy spoke as an employee about a job-related matter when he filed his

grievance, his speech was not protected by the First Amendment. Thus, Hardy did

not create a genuine issue of material fact as to whether Defendant Wood violated

his First Amendment rights.

       Hardy also argues that summary judgment was improper as to his pre-

termination procedural due process claim.4 A “tenured public employee is entitled

to oral or written notice of the charges against him, an explanation of the


       4
        On appeal, Hardy does not argue that he was deprived of due process after his
termination.

                                               7
employer’s evidence and an opportunity to present his side of the story.”

Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S. Ct. 1487, 1495

(1985). Notice in the pre-termination context is sufficient if it notifies the public

employee of the charges against him and is timely. Harrison v. Wille, 132 F.3d

679, 684 (11th Cir. 1998). The pre-termination hearing does not have to be “a full

evidentiary hearing,” or “establish conclusively the propriety of the termination.”

Id. Rather, the employee “need only be given an opportunity to present his side of

the story.” Id.

      Even assuming arguendo that Hardy had a constitutionally protected interest

in his employment, the undisputed evidence shows that Hardy was given adequate

pre-termination notice and an opportunity to be heard. First, Spann and Hardy

discussed McMillian’s sexual harassment charges in the taped June 28, 2005

interview. Spann informed Hardy of specific events McMillian claimed

constituted inappropriate behavior. Second, Defendant Wood’s November 4, 2005

letter informed Hardy of the allegations against him, including that he (1) made

sexual advances towards McMillian, and (2) attempted to instigate an investigation

against McMillian because she had filed a sexual harassment complaint against

him. Wood’s letter listed by number the personnel rules Hardy allegedly violated.

The letter informed Hardy there would be a pre-termination hearing on the



                                           8
allegations, at which he could present evidence and be represented by counsel.

      The record shows that, at the pre-termination hearing, Hardy was

represented by counsel, submitted numerous documents and called eight witnesses

in his defense. Indeed, one of the documents Hardy placed in evidence was DYS’s

grievance procedure, indicating that he understood that his filing of the grievance

was at issue in the hearing. Because the undisputed facts show that Hardy was

informed of the charges against him and had an opportunity to present his side of

the story, there is no genuine issue of material fact as to whether Wood violated

Hardy’s right to procedural due process before Hardy’s termination.

      Finally, there is no dispute of fact as to Hardy’s state law fraud claim. To

establish fraud under Alabama law, the plaintiff must show that: (1) the defendant

made a false representation; (2) concerning a material fact; (3) that the plaintiff

relied upon; and (4) that the plaintiff was damaged as a result. Ala. Code § 6-5-

101; George v. Associated Doctors Health & Life Ins. Co., 675 So. 2d 860, 862

(Ala. 1996). The undisputed record belies Hardy’s claim that Defendant Wood

deceived him into thinking that the November 15, 2005 pre-termination hearing

would focus only on McMillian’s sexual harassment allegations and not on the

propriety of Hardy’s filing of the grievance. Wood’s November 4, 2005 letter

accurately informed Hardy that the hearing would concern both McMillian’s



                                           9
sexual harassment allegations and Hardy’s attempt to have McMillian investigated.

B.     Rule 59(e) Motion

       We also reject Hardy’s challenge to the district court’s denial of his Rule

59(e) motion to alter or amend the judgment.5 The proper grounds for a Rule 59(e)

motion are newly-discovered evidence or manifest errors of law or fact. Arthur v.

King, 500 F.3d 1335, 1343 (11th Cir. 2007). Hardy’s Rule 59(e) motion merely

reasserted arguments raised in opposition to Defendant Wood’s summary judgment

motion or made new arguments that could have been, but were not, made before

summary judgment was entered. See Michael Linet, Inc. v. Village of Wellington,

408 F.3d 757, 763 (11th Cir. 2005) (explaining that a Rule 59(e) motion should not

be used to relitigate summary judgment issues or raise arguments or present

evidence that could have been raised before judgment was entered). Thus, the

district court did not abuse its discretion in denying Hardy’s Rule 59(e) motion.

       AFFIRMED.




       5
       We review a district court’s denial of a Rule 59(e) motion for abuse of discretion.
Lockard v. Equifax, Inc., 163 F.3d 1259, 1267 (11th Cir. 1998).

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