Daniels v. The Housing Authority of the City of Troy, Alabama

Filing 39

MEMORANDUM OPINION AND ORDER denying 26 MOTION for Summary Judgment. Signed by Honorable Judge W. Harold Albritton, III on 12/7/2011. (Attachments: # 1 Civil Appeals Checklist)(wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

SHARON DANIELS,
Plaintiff,
v.
THE HOUSING AUTHORITY OF THE
CITY OF TROY, ALABAMA,
Defendant.

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Civil Action No. 2:10cv904-WHA
(wo)

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This case is before the court on a Motion for Summary Judgment (Doc. #26), filed by the
Housting Authority of the City of Troy, Alabama on October 14, 2011.
The Plaintiff filed a Complaint in this case on October 26, 2010, bringing claims for
disparate pay on the basis of race and gender pursuant to Title VII of the Civil Rights Act of
1964, as amended (Count One), violation of the Equal Pay Act (Count Two), and disparate
treatment on the basis of race in violation of 42 U.S.C. § 1981 (Count Three).
The Defendant has moved for summary judgment as to all of the claims against it.
For the reasons to be discussed, the Motion for Summary Judgment is due to be DENIED.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper "if there is no genuine issue as to any material fact and . . .
the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
The party asking for summary judgment "always bears the initial responsibility of

informing the district court of the basis for its motion,” relying on submissions “which it believes
demonstrate the absence of a genuine issue of material fact." Id. at 323. Once the moving party
has met its burden, the nonmoving party must “go beyond the pleadings” and show that there is a
genuine issue for trial. Id. at 324.
Both the party “asserting that a fact cannot be,” and a party asserting that a fact is
genuinely disputed, must support their assertions by “citing to particular parts of materials in the
record,” or by “showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”
Fed. R. Civ. P. 56 (c)(1)(A),(B). Acceptable materials under Rule 56(c)(1)(A) include
“depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers, or
other materials.”
To avoid summary judgment, the nonmoving party "must do more than show that there is
some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). On the other hand, the evidence of the nonmovant must be
believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby,
477 U.S. 242, 255 (1986).
After the nonmoving party has responded to the motion for summary judgment, the court
shall grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
III. FACTS
The submissions of the parties establish the following facts, construed in a light most
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favorable to the non-movant:
Sharon Daniels (“Daniels”) has been employed by the Defendant the Housing Authority
of the City of Troy, Alabama (“the Housing Authority”), since January 4, 1994. She was
originally hired as a tenant coordinator, and was promoted to occupancy clerk, then housing
specialist, and finally Property Manager.
Ken Vaughan (“Vaughan”) is the Housing Authority’s Executive Director. The Housing
Authority has a five member Board of Directors. The Housing Authority manages 422 units at
five different locations.
In January of 2006, Vaughan announced a change in management structure for the
Housing Authority as required by the Department of Housing and Urban Development. Under
this structure, Vaughan recommended three Housing Authority employees to be Property
Managers. These employees included Daniels, an African American woman; Bertha Batie
(“Batie”), an African American woman; and Roger Green (“Green”), a white man. The three
Property Managers have the same job title, same pay grade classification, and same job
description. Daniels is responsible for 134 housing units, Green is responsible for 168 housing
units, and Batie is responsible for 120 housing units. Batie does not have an assistant, whereas
Green and Daniels have assistants. In January of 2006, Green’s salary was $1569.31 per pay
period, Batie’s was $1532.91, and Daniels’s salary was $1086.93.
In May 2006, Vaughan made a recommendation to the Board of Directors as to the
salaries to be paid to three Property Managers, which were approved. The basis for Vaughn’s
recommendation as to the Property Managers’s salaries is a central issue in this case. When
asked in his deposition about the setting of the “original salary” for the positions, Vaughan stated
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that he looked to see whether their salaries fell within the approved range for the position.
Vaughan Dep. at p. 89: 13-16. When asked why he assigned Daniels a salary at the bottom end
of that range and Green at the top end, Vaughan answered that it was based on their “current
salaries at that time.” Id. at p. 92.1
Vaughan recommended a pay raise for Daniels to $1250.00 per pay period, effective May
2006, after learning that an employee under Daniels’s supervision was paid more than she was,
and that recommendation was approved. All three Property Managers received a 5% pay
increase in 2006. Arnold Decl. at ¶ 6.
Vaughan has stated in a Declaration that sometime in the fall of 2006 he and Linda
Arnold (“Arnold”), the Comptroller, determined that two primary factors would be used in
determining salary (1) whether the particular Property Manager had an administrative assistant,
and (2) that the compensation would be based on the number of units managed. In July or
August 2008, a salary study was conducted to compare salaries to other housing authorities.
According to Vaughan’s Declaration, however, except for the adjustment of Daniels’s salary in
2006, none of the Property Managers have received anything other than a percentage-based
adjustment that applied to all employees.
IV. DISCUSSION
A. Disparate Treatment
Where, as here, the plaintiff seeks to prove intentional discrimination on the basis of race
under Title VII and § 1981 by using circumstantial evidence of intent, the court applies the
framework first set out by the United States Supreme Court in McDonnell Douglas Corp. v.
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The Housing Authority’s position on the context of this testimony is discussed below.
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Green, 411 U.S. 792 (1973). Under this framework, the plaintiff must establish a prima facie
case of discrimination. McDonnell Douglas, 411 U.S. at 802. After the plaintiff has established
a prima facie case of discrimination, the burden of production is placed upon the employer to
articulate a legitimate nondiscriminatory reason for its employment action. Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 254 (1981). The plaintiff may seek to demonstrate that the
proffered reason was not the true reason for the employment decision "either directly by
persuading the court that a discriminatory reason more likely motivated the employer or
indirectly by showing that the employer's proffered explanation is unworthy of credence." Id. at
256; Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997). A plaintiff's prima
facie case, combined with sufficient evidence to find that the employer's asserted justification is
false, may permit the trier of fact to conclude that the employer unlawfully discriminated. Reeves
v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 147 (2000). That is, even if a plaintiff
establishes a prima facie case and offers sufficient evidence of pretext as to each of the proffered
reasons, summary judgment “will sometimes be available to an employer in such a case.”
Chapman v. AI Transport, 229 F.3d 1012, 1025 n.11 (11th Cir. 2000).
A prima facie case of disparate treatment in wages is established if the plaintiff
demonstrates that (1) she belongs to a protected class, (2) she received lower wages, (3) a
similarly situated comparator outside of the protected class received higher compensation, and
(4) the plaintiff was qualified to do the job. Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.
1997).
The Housing Authority has argued that it is entitled to summary judgment on Daniels’s
disparate treatment claims because no similarly situated person was treated more favorably than
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Daniels. The Housing Authority concedes that Green and Daniels, as well as Batie, were
responsible for performing the same job functions and/or supervising the performance of those
functions. See Doc. #37 at p.6. The Housing Authority states, however, that Green performs
additional different duties than Daniels because he is responsible for 34 more units than Daniels.
The Housing Authority also contends that Green has more responsibilities because he supervises
five employees while Daniels supervises four.
Daniels responds there is no evidence that Green performs additional duties not
performed by Daniels, or any evidence of the significance in time, effort, and importance of those
duties. Daniels further contends that Angeline Blair (“Blair”), Green’s assistant, identified
Property Manager job duties that she never saw Green perform or complete in five years. In her
deposition, Blair identifies several tenant-related duties, such as computing the total adjusted
income for a tenant and verifying income, which she says she did not see Green perform. See
Blair Dep. at p. 20.
The Eleventh Circuit has previously given guidance to courts in the evaluation of
comparators under the more lenient Title VII standard, as compared to the EPA standard, which
is the strictest standard of comparison applicable. See Mulhall v. Advance Security, Inc., 19 F.3d
586 (11th Cir. 1994). In Mulhall, the plaintiff was a Vice President, Administration of a
company. She brought EPA and Title VII wage claims. One of the comparators for these claims
was hired to head up an investigations division of the defendant corporations and served as the
president of that division. For purposes of the EPA claim, the Eleventh Circuit reasoned that
both positions were corporate department heads, both positions reported to the president, job
functions such as responsibilities regarding EEO, affirmative action, and coordination with other
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corporate entities were identical. Id. at 593. The court concluded that, drawing all inferences in
favor of the non-movant, it could not say that the administrative aspects of the positions were not
substantially similar. Id. The court determined, however, that the investigative component of the
comparator’s job meant that the similarity requirement of the EPA was not met. Id. When the
court examined the Title VII wage claim, the court explained that under the more lenient
standard, a question of fact had been raised as to the similarity of positions because there was no
evidence in the record as to the amount of time and effort the comparator actually expended on
investigative supervision, and how much supervision entailed investigative experience, rather
than general supervisory experience. Id. at 598. In other words, additional evidence was needed
to demonstrate that additional duties sufficiently exceeded duties in common to render the
comparator dissimilar.
The Eleventh Circuit has also explained that in a comparator analysis, “the plaintiff is
matched with a person or persons who have very similar job-related characteristics and who are
in a similar situation to determine if the plaintiff has been treated differently than others who are
similar to him.” MacPherson v. University of Montevallo, 922 F2d 766, 775 n.16 (11th Cir.
1991).
Similar to the evidence in the Mulhall decision, the evidence before the court does not
establish the amount of time and effort actually expended on the additional 34 units to exceed
time and effort expended on duties in common to render the comparator dissimilar. The position
description for Property Manager identifies 55 major duties and responsibilities, at least some of
which, such as verifying cash drawers, opening the vault, checking vendor prices, processing
invoices for payment, keeping filing systems in accordance with Housing Authority and HUD
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policy, and reporting suspected criminal activity, are not facially apparent as being affected by
the number of units managed. See Appx. A to Pl. Ex. #23. More important, there is evidence in
the form of Blair’s testimony that Green was not performing some duties which arguably could
require more time depending on the number of tenants, such as calculation of tenant income.
Therefore, there is a question of fact as to the extent, if any, of responsibility and duties he
performed which were greater than that of Daniels.
A jury may ultimately conclude that the responsibility and requirements of the additional
units renders Green dissimilar. At this point, however, viewing the evidence in a light most
favorable to the non-movant, the court concludes that Daniels has created a question of fact
sufficient to establish a prima facie case.
The Housing Authority contends that even if Daniels establishes a prima facie case,
Vaughan determined that an equitable way to compensate property managers was based on the
number of units they manage and whether the Property Manager is assigned an Assistant
Property Manager, and that was the basis for the difference in salary, not race or gender.
Daniels argues that Vaughan’s explanation in his affidavit about how he set the salary for
the Property Managers is in conflict with his deposition testimony. Daniels states that in his
deposition Vaughan testified that he set the pay based on previous salary, and that he did not
consider whether the manager had an administrative assistant or the number of units managed.
Daniels states that prior salary, standing alone, is not a legitimate non-discriminatory reason,
citing Miranda, 975 F.2d at 1530. Daniels states further that the proferred explanation in
Vaughan’s affidavit is also internally inconsistent because the number of units managed explains
only the discrepancy in pay between Daniels and Green, but not Daniels and Batie, and the lack
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of assistant explains the discrepancy between Daniels and Batie, but not Batie and Green.
The Housing Authority responds that Daniels has misinterpreted Vaughan’s testimony.
According to the Housing Authority, Vaughan made the decision to base salary on the number of
units in 2006, and then in 2007 merely evaluated whether the salaries of each Property Manager
were within the applicable range. The Housing Authority states that the portion of Vaughan’s
deposition in which he states that he did not consider the number of housing units in
recommending a salary refers to 2007.
The court has reviewed Vaughan’s declaration and the deposition excerpts cited, as well
as the declaration of Arnold, the comptroller. It appears to the court that there is a great deal of
confusion in the evidence, and briefs, as to when salary determinations were made in this case,
and the basis for those determinations.
Both Vaughan and Arnold have stated that they made the decision that two factors would
be used in determining salary: (1) whether there was an administrative assistant, and (2) that
compensation would be based on the number of units managed. Both Vaughan and Arnold have
stated, however, that this determination was made in the fall of 2006. Although the effective
date for the Property Manager positions was in 2007, the Property Manager positions were filled
in January 2006, and a salary scale was approved by the Board in May 2006. There is apparently
no question that Daniels Property Manager salary was set in 2006, because Vaughan has stated in
his Declaration that Daniels received a salary adjustment of 15% effective May 2006 because she
was being paid less than someone she would supervise and that “she would not have received
this increase had she not transitioned into the Property Manager role.” Vaughan Decl. at ¶40.
Arnold has stated in her Declaration that each of the three Property Managers received a 5%
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increase in 2006. Arnold Decl. at ¶ 6.
There is no reason articulated in the brief, much less supported by citations to evidence,
for the difference in salary as between Daniels and Green in May of 2006, other than the
employees’s existing salaries. The Housing Authority, has, therefore offered incomplete
evidence, and has not provided a reason for the difference in salaries between Green and Daniels
at the time of their appointment to the Property Manager’s position.
Even if the court were to consider the Housing Authority to have satisfied its burden of
articulating a legitimate, non-discriminatory reason, there are questions of fact presented as to
Vaughan’s actual reliance on the articulated reason. When Vaughan was asked in his deposition
why he set Green’s salary at the top of the applicable range and Daniels’s salary at the bottom
end, he answered that he looked at the “current salaries at that time.” Vaughan Dep. at p.91:1892:10. The Housing Authority contends that this salary determination occurred in 2007, after the
decision was made in 2006 to base salary on the number of units assigned to the Property
Manager. The question in the deposition, however, comes after a series of questions when
Vaughan clarified that the questioner was asking about the “original salary” id. at p.89: 11-12,
and “[w]hen we originally made the assignment.” Id. at p.91:4. Vaughan’s testimony on this
point is unclear because he refers in his deposition to the “original” salary, but also uses the date
2007.2 At an earlier point in Vaughan’s deposition, however, it is clear that he made a
recommendation as to salary at the time he recommended Daniels, Batie, and Green as Property
Managers. When asked about the recommendation as to salary made “at the same time” as the

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In fact, the attorney questioning Vaughan uses the date 2007, but appears to be referring
to the original appointment of Daniels as manager. See Vaughan Dep. at p.87: 8-13.
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recommendation of the selection of Daniels, Green, and Batie, Vaughan stated that his
recommendation was “[a]ll three of their salaries, from best I can remember, fell within the range
for that position.” Id. at p. 56: 17-20. He testified that he cannot recall how he determined
where the three employees fell within the range. Id. at p. 57 : 9-21. The court concludes,
therefore, that there is at least a question of fact as to what Vaughan considered in recommending
the original Property Manager salaries in May 2006.
As noted above, Vaughan has stated that in the fall of 2006, he determined that the
Property Managers should be paid in accordance with the number of units managed. There is
insufficient evidence before the court, however, that Vaughan changed any salaries in accordance
with such a policy. In its Reply, the Housing Authority states, citing only to a pay record of
Daniels, that Daniels received a November 2006 pay increase consistent with the per unit
calculation and Green and Batie did not receive that increase. See Doc. #37. Under this
argument, Daniels would have received two salary adjustments in 2006 which were not received
by Green and Batie: one in May 2006 and one in November 2006. That argument is not
supported by evidence beyond a citation to a listing of Daniel’s paychecks. Moreover, the
Housing Authority’s interpretation of the paycheck evidence appears to be inconsistent with
Vaughan’s Declaration. In his declaration, Vaughan does not mention a November 2006
adjustment, but instead identifies a single unique salary adjustment for Daniels when he states
that “[e]xcept for Ms. Daniels’ 2006 adjustment, none of the Property Managers have received
anything other than percentage-based adjustments . . . .” Vaughan Decl. at ¶ 49.3
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Arnold states in her Declaration that “Except for Plaintiff’s 2006 adjustments, none of
the Property Managers have received anything other than percentage based adjustments . . . .”
Arnold Decl. at ¶13. Earlier in her Declaration, Arnold refers to the May 2006 adjustment and
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Viewing the evidence in a light most favorable to the non-movant, a reasonable jury
could conclude that although a reason has been articulated for the difference in pay as between
Daniels and Green, the original salary recommendation was based on the employees’s early 2006
salary, and even though Vaughan has stated that he decided to rely on the number of units and
access to an assistant in setting salaries, the salaries were not adjusted based on the number of
units, but were only increased by uniform percentage increases. The court concludes, therefore,
that Daniels has created a sufficient question of fact to undermine the articulated reason so that
she has established pretext, even if the Housing Authority has adequately articulated a legtimate,
non-discriminatory reason for salary disparity.
It may ultimately be that a jury will conclude that neither race nor gender played a
substantial or motivating role in the difference in pay as between Daniels and Green. Given the
incomplete evidence and the fact questions raised by Daniels as to how salaries were determined
at various points, and what the basis for the admitted difference in salary between Green and
Daniels is, the court cannot conclude that the Housing Authority is entitled to summary judgment
on the gender and race disparate treatment claims.
B. Equal Pay Act
To establish a prima facie case under the Equal Pay Act, the Plaintiff must show that the
employer pays different wages to employees of opposite sexes for equal work on jobs the
performance of which requires equal skill, effort, and responsibility and which are performed
under similar working conditions. See Beavers v. Am. Cast Iron Pipe Co., 975 F.2d 792, 795
(11th Cir. 1992). A female employee demonstrates a prima facie case of an Equal Pay Act

the 5% increase. See id. at ¶7.
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violation by showing that her employer paid male employees different wages for equal work for
jobs which require “ ‘equal skill, effort, and responsibility, and which are performed under
similar working conditions.’ ” Irby v. Bittick, 44 F.3d 949, 954 (11th Cir. 1995) (quoting Corning
Glass Works v. Brennan, 417 U.S. 188, 195 (1974) and 29 U.S.C. § 206(d)(1)). A plaintiff need
only demonstrate that the jobs at issue are substantially similar, not identical. Miranda, 975 F.2d
at 1533.
Once the Plaintiff establishes a prima facie case, the burden then shifts to the Defendants
to demonstrate that the differential was justified under one of the four affirmative defenses found
in 29 U.S.C. § 206(d)(1). Defendants bear the burden of proof for these affirmative defenses.
Irby v. Bittick, 44 F.3d 949, 954 (11th Cir.1995).
Although, as noted above, the similarity standard for Equal Pay Act claim is higher than
that of a Title VII disparate wage claim, under the facts as presented at this point in the
proceedings, the court concludes that the same incomplete evidence and questions of fact which
preclude summary judgment as to the Title VII claims also precludes summary judgment as to
the Equal Pay Act claim in this case. Again, while a jury may ultimately find in the Housing
Authority’s favor on the Equal Pay Act claim, at this point in the proceedings, the Housing
Authority has not established that it is entitled to judgment as a matter of law.
V. CONCLUSION
As noted above, the evidence presented by the movant is incomplete in many respects,
and conflicting in others. It appears to the court that many of the questions of fact which have
been raised in this case can be resolved simply through evaluation of more complete evidence on
the issue of when the salaries at issue in this case were set, and when adjustments to those
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salaries were made.

Because that evidence is not currently before the court, however, and for

the reasons discussed, the Motion for Summary Judgment is due to be and is hereby ORDERED
DENIED.
Done this 7th day of December, 2011.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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