Isom v. Birmingham Water Works Board
MEMORANDUM OPINION and ORDER re 20 MOTION for Summary Judgment filed by Birmingham Water Works Board; for reasons stated within the Board's motion for summary judgment, 20 , is GRANTED as to Isom's section 1981 and Title VII claims (Coun t I), and these claims are DISMISSED WITH PREJUDICE; The motion is DENIED as to Isom's FLSA claim (Count II), which, consistent with the Scheduling Order, 12 the case will proceed to a pretrial conference at 9:45 a.m. on August 22, 2017, and a jury trial at 9:00 a.m. on September 25, 2017, both in Courtroom 4A of the Hugo L. Black United States Courthouse in Birmingham, Alabama; The court directs the parties to the Standard Pretrial Procedures governing all pretrial deadlines, which is attached as Exhibit A. Signed by Judge Abdul K Kallon on 07/13/2017. (KBB)
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2017 Jul-13 PM 02:55
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
BIRMINGHAM WATER WORKS
Civil Action Number
MEMORANDUM OPINION AND ORDER
Allen Isom alleges claims of race discrimination under Section 1981 of the
Civil Rights Act of 1866, 42 U.S.C. § 1981, and Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e et seq. (Count I), and violations of the Fair Labor
Standards Act, 29 U.S.C. §§ 201 et seq. (Count II), against his former employer.
The court presently has for consideration the Birmingham Water Works Board’s
motion for summary judgment, doc. 20, which is fully briefed, docs. 20-1; 28-1;
31, and ripe for review. For the reasons stated herein, the motion is due to be
granted as to Count I, and denied as to Count II.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), summary judgment is proper
“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.” “Rule 56(c) mandates the
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entry of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(alteration in original). The moving party bears the initial burden of proving the
absence of a genuine dispute of material fact. Id. at 323. The burden then shifts to
the non-moving party, who is required to go “beyond the pleadings” to establish
that there is a “genuine issue for trial.” Id. at 324 (internal citations and quotation
marks omitted). A dispute about a material fact is “genuine” if “the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court must construe the evidence and all reasonable inferences arising
from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 244 (all
justifiable inferences must be drawn in the non-moving party’s favor). Any factual
dispute will be resolved in the non-moving party’s favor when sufficient competent
evidence supports that party’s version of the disputed facts. But see Pace v.
Capobianco, 238 F.3d 1275, 1276–78 (11th Cir. 2002) (a court is not required to
resolve disputes in the non-moving party’s favor when that party’s version of
events is supported by insufficient evidence). However, “mere conclusions and
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unsupported factual allegations are legally insufficient to defeat a summary
judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citing
Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)).
Moreover, “[a] mere ‘scintilla’ of evidence supporting the opposing party’s
position will not suffice; there must be enough of a showing that a jury could
reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.
1990) (citing Anderson, 477 U.S. at 252).
Isom, who is African-American, worked for the Board as a District
Supervisor. See doc. 27-1 at 2. Isom’s duties included “maintaining work order,
work order requests, working with customers, inspect[ing] . . . work done,
calculat[ing] requirements for concrete and concrete requisition, measur[ing] work
and enter[ing] measurements on drawing[s], reading and interpreting blue prints,
[and] coordinat[ing] work with other departments, and inspectors.” Id. Relevant
here, the Board required Isom to submit time entries for himself and the employees
he supervised, and issued Isom a company vehicle equipped with a NavMan GPS
system to use for work. Doc. 20-7 at 2. During the summer of 2014, while
examining Isom’s GPS records, Keith Witt, Isom’s temporary supervisor,
discovered that Isom had recorded false time entries which showed Isom
purportedly at work while Isom was actually in non-work locations. Id. at 2–3.
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The review showed also that Isom used his company vehicle on days and times
when he was not actually working. See doc. 20-4 at 2. Significantly, although the
Board permitted supervisors to edit their timesheets, it required them to include a
“comment” to explain any discrepancies. See doc. 20-7 at 2. Isom undisputedly
did not include the required comments on his timesheets. See doc. 20-7 at 2, 4; see
generally doc. 28-1 (not disputing this point). Moreover, during a meeting with
Witt, Michael Arrington (Isom’s direct supervisor), and Charlotte Harris (Human
Resources), Isom was unable to explain the discrepancies. Id.
Based on Isom’s time discrepancies, the Board conducted an audit of all of
the supervisors’ timekeeping records and discovered that several other supervisors
also had “timekeeping discrepancies which required explanation.” Id. at 2–3.
Ultimately, after interviewing all supervisors with timekeeping discrepancies, the
Board discharged only Isom.
The analysis is divided into two parts. In part A, the court will address
Isom’s claims of race discrimination, and, in part B, the claim for unpaid overtime
A. Race Discrimination (Count I)
Isom alleges that racial animus motivated his termination, because “he was
held to a higher standard of employment than the similarly situated white
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employees.” Doc. 1 at 4.1 Title VII and Section 1981 make it unlawful for an
employer to “discharge any individual . . . because of such individual’s race, color,
religion, sex, or national origin . . . .” 42 U.S.C. § 2000e-2(a)(1); 42 U.S.C. §
1981. Where, as here, Isom is attempting to prove intentional discrimination
through circumstantial evidence, the court utilizes the McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973), burden-shifting method of proof.
Under this method, Isom bears the burden of establishing a prima facie case of race
discrimination. See Burke-Fowler v. Orange County, Fla., 447 F.3d 1319, 1323
(11th Cir. 2006) (citation omitted). If Isom satisfies his initial burden, “then [the
Board] must show a legitimate, non-discriminatory reason for its employment
action.” Id. (citation omitted). “If it does so, then [Isom] must prove that the
reason provided by [the Board] is a pretext for unlawful discrimination.” Id.
(citation omitted). However, “[t]he ultimate burden of persuading the trier of fact
that [the Board] intentionally discriminated against [Isom] remains at all times with
[Isom].” Springer v. Convergys Customer Mgmt. Group, Inc., 509 F.3d 1344,
1347 (11th Cir. 2007) (citation omitted).
Isom acknowledges, however, that the Board also failed to discharge “some other
African-American [supervisors] [who] had time discrepancies.” Doc. 27-1 at 5–6.
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1. Section 1981
The Board, a municipal actor, seeks summary judgment on Isom’s section
1981 claim based on Isom’s failure to demonstrate a widespread policy or custom
of discrimination.2 Doc. 20-1 at 9. Isom counters that “[t]here was a long standing
policy that district supervisors were allowed to manually enter time,” and that “[a]
pattern of overlooking alleged time sheet infractions by the white employees can
give rise to a policy.” Doc. 28-1 at 9. Isom further asserts that, “[g]iven the audit
results, [the Board] cannot claim that it had no knowledge of these other alleged
infractions and/or did not tacitly approve them. Isom was the audit’s only job
loss.” Id. at 10. Isom’s contentions are unavailing, because disparate disciplinary
treatment arising out of a single audit is not the type of widespread conduct needed
to show a custom or policy of discrimination. See Oklahoma City v. Tuttle, 471
U.S. 808, 823–24 (1985) (“Proof of a single incident of unconstitutional activity is
not sufficient to impose liability under Monell [v. Dep’t of Soc. Servs., 436 U.S.
658 (1978)], unless proof of the incident includes proof that it was caused by an
existing, unconstitutional municipal policy, which policy can be attributed to a
A plaintiff bringing a section 1981 claim must show a custom or policy within the
meaning of Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), because section 1981 can
provide no broader remedy against a state actor than section 1983. Jett v. Dallas Indep. Sch.
Dist., 491 U.S. 701, 735 (1989). See also Busby v. City of Orlando, 931 F.2d 764, 771 n.6 (11th
Cir. 1991) (“The section 1981 claim has been effectively merged into the section 1983 claim for
racial discrimination. This occurs because the express action at law provided by § 1983 for the
‘deprivation of any rights, privileges, or immunities secured by the Constitution and laws,’
provides the exclusive federal damages remedy for the violation of the rights guaranteed by §
1981 when the claim is pressed against a state actor.”).
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municipal policymaker.”); Craig v. Floyd Cty., Ga., 643 F.3d 1306, 1310–11 (11th
Cir. 2011) (“Proof of a single incident of unconstitutional activity is not sufficient
to impose liability against a municipality,” “even when the incident involves
several employees of the municipality.”). Therefore, in light of Isom’s failure to
show a widespread custom of disparate disciplinary treatment or to present any
evidence of a municipal policy of discrimination, the Board’s motion on the
section 1981 claim is due to be granted.
2. Title VII
To support his Title VII claim, Isom maintains that the Board’s articulated
reasons for discharging him — i.e., “falsification of time records, using the
[Interactive Voice Recorder] system and editing timesheet to clock in and out for
work when not working,” doc. 20-3 at 3, are pretextual because of the Board’s
failure to discharge Jerry Lowe and Larry Calhoun, who purportedly committed
more egregious falsification and personal company car usage offenses. As Isom
puts it, he was “far from the worst offender,” doc. 28-1 at 7, because he only
adjusted his payroll by $2,745.74, whereas Lowe and Calhoun adjusted their
payroll sheets by $14,649.71 and $6,756.45, respectively, see doc. 20-10 at 8.
Where, as here, “a plaintiff seeks to show disparate treatment of
comparators, those individuals must . . . be similarly situated.” Foster v. BioLife
Plasma Servs., L.P., 566 F. App’x 808, 811 (11th Cir. 2014). See also Silvera v.
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Orange Cnty. Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001). To ensure that the
comparator is similarly situated to the plaintiff in “all relevant respects,” Wilson v.
B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004), the court should
inquire “whether the employees are involved in or accused of the same or similar
conduct and are disciplined in different ways,” Burke-Fowler, 447 F.3d at 1323.
“When making that determination, we require that the quantity and quality of the
comparator’s misconduct be nearly identical to prevent courts from secondguessing employers’ reasonable decisions.”
Burke-Fowler, 447 F.3d at 1323
Here, Isom has failed to demonstrate that Lowe and Calhoun are similarly
situated in all relevant respects. While the audit showed also that these two
individuals adjusted their payroll entries, there is no evidence, however, that they
engaged in “nearly identical” conduct. Among other things, Isom failed to address
the Board’s contention that he was not “terminated for simply editing his time
entries, [and that] instead, [Isom] failed to follow the requirement to enter
comments explaining edits to such time entries and had numerous instances where
he recorded hours worked when he was not working.” Doc. 31 at 2. 3 See also doc.
20-7 at 3 (“Mr. Isom’s time entries contain none of the required explanations for
Keith Witt emphasized in emails sent to supervisors (including Isom) in August 2014
that employees who edited their timesheets using the IVR system needed to “put in a comment”
explaining the discrepancy. See doc. 20-7 at 6–9.
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manual time entries.”). In contrast, Lowe and Calhoun “provided the needed
explanations for any time discrepancies in their time records.” Doc. 20-7 at 4. In
other words, Lowe and Calhoun followed the proper procedures. Significantly,
Isom does not dispute that, in contrast to Lowe and Calhoun, he did not explain his
time discrepancies either by providing comments to accompany his timesheet edits
or during his meeting with Witt, Arrington, and Harris. See generally doc. 28-1.
Also, Isom does not present any evidence to show that Lowe and Calhoun stole
time by fabricating their manual entries. Instead, Isom states only that the Board
“believed their white supervisors[’] explanation for any time issues” and that their
“explanations are not provided.” Doc. 28-1 at 2. Isom’s contention is unavailing
because, unlike Lowe and Calhoun, Isom presented no explanations in his time
sheets for his manual time entries, and when confronted, apparently also failed to
provide acceptable explanations, including for why he was home or at non-work
sites when he claimed to be on the clock. As such, he cannot claim credibly that
the Board treated him differently by not believing his explanation. Moreover, the
Board, in fact, provided the explanations Lowe and Calhoun provided by attaching
their relevant entries as exhibits to Keith Witt’s affidavit. See doc. 20-7. These
documents confirm the Board’s contention that these individuals, unlike Isom,
provided the necessary explanations in their timesheets.
Finally, there is no
evidence before the court to rebut the Board’s contention that the Board had no
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basis to find that Lowe and Calhoun failed to actually work the hours they
represented in their timesheets. See doc. 20-7 at 4. By failing to present such
evidence, Isom falls short of presenting “such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could find them
unworthy of credence.” Combs v. Plantation Patterns, Meadowcraft, Inc., 106
F.3d 1519, 1538 (11th Cir. 1997) (internal quotation marks omitted).
In light of Isom’s failure to show that Lowe and Calhoun are similarlysituated comparators in all relevant respects, Isom cannot demonstrate pretext.
Accordingly, the Board’s motion is due to be granted as to Isom’s Title VII claim.
B. FLSA Claim (Count II)
Finally, Isom alleges that the Board violated the FLSA by failing to pay him
overtime. According to Isom, he “routinely worked in excess of forty hours per
week and was not compensated for any overtime,” and the Board “would not pay
Isom and other similarly situated persons for any over time until an employee
worked over 50 hours per week.” Doc. 1 at 3. The Board has moved for summary
judgment, stating that its district supervisors fall within the executive exemption to
the FLSA, see 29 U.S.C. § 213(a)(1), and that, “as a courtesy to Mr. Isom and the
other supervisors, [the Board] paid them straight-time overtime for hours worked
in a week in excess of 50,” doc. 20-4 at 2.
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Courts must “narrowly construe exemptions to the FLSA overtime
requirement.” Morgan v. Family Dollar Stores, 551 F.3d 1233, 1269 (11th Cir.
2008). Relevant here, the parties dispute whether the Board compensated Isom on
a salary basis 4 and whether Isom’s primary duties consisted of supervision and
management. As Isom tells it, the Board paid him an hourly rate, only paid him for
his absences if he had vacation or sick time, and “less than 50% of his time was
spent in supervision.”
Doc. 27-1 at 2–3, 7, 15–16.
Although the ultimate
determination of whether an employee is “exempt” is a question of law, where, as
here, there are material factual disputes regarding the factors set forth in 29 C.F.R.
§ 541.100(a), summary judgment is not appropriate. See Icicle Seafoods, Inc. v.
Worthington, 475 U.S. 709, 714 (1986)) (“The question of how [a plaintiff spent
his time working for the defendant] is a question of fact. The question whether
their particular activities excluded them from the overtime benefits of the FLSA is
a question of law.”).
Under the relevant regulations, the executive exemption requires that (1) the employer
compensate the employee on a salary basis, (2) that the employee’s primary duty be
management, (3) that he customarily and regularly direct the work of two or more employees,
and (4) has the authority to hire or discharge or that the employer give particular weight to his
suggestions and recommendations. 29 C.F.R. § 541.100(a). “An employee [is] considered to be
paid on a ‘salary basis’ . . . if the employee regularly receives each pay period on a weekly, or
less frequent basis, a predetermined amount constituting all or part of the employee’s
compensation, which amount is not subject to reduction because of variations in the quality or
quantity of the work performed.” 29 C.F.R. § 541.602(a).
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CONCLUSION AND ORDER
For the reasons stated above, the Board’s motion for summary judgment,
doc. 20, is GRANTED as to Isom’s section 1981 and Title VII claims (Count I),
and these claims are DISMISSED WITH PREJUDICE. The motion is DENIED
as to Isom’s FLSA claim (Count II), which, consistent with the Scheduling Order,
doc. 12, will proceed to a pretrial conference at 9:45 a.m. on August 22, 2017, and
a jury trial at 9:00 a.m. on September 25, 2017, both in Courtroom 4A of the Hugo
L. Black United States Courthouse in Birmingham, Alabama. The court directs the
parties to the Standard Pretrial Procedures governing all pretrial deadlines, which
is attached as Exhibit A.
DONE the 13th day of July, 2017.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
HON. ABDUL K. KALLON, PRESIDING
This case is set for a pre-trial hearing pursuant to Rule 16 of the Federal
Rules of Civil Procedure. A conference-type hearing will be held in chambers in
the United States Courthouse in Birmingham, Alabama at the time indicated.
The hearing will address all matters provided in Rule 16, including the
limitation of issues requiring trial, rulings on pleading motions, and settlement
Counsel attending the conference are expected to be well-informed about the
factual and legal issues of the case, and to have authority to enter appropriate
stipulations and participate in settlement discussions. Counsel appearing at the
conference will be required to proceed at trial notwithstanding the naming of
others as designated trial counsel.
Promptly upon receipt of this notice, plaintiff’s counsel is to initiate
discussions with other counsel aimed at ascertaining which basic facts are not in
dispute, at clarifying the parties’ contentions (for example, just what is denied
under a “general denial”) and at negotiating workable procedures and deadlines for
remaining discovery matters. At least four (4) business days in advance of the
conference, plaintiff’s counsel is to submit to chambers (via email at
firstname.lastname@example.org) a proposed Pre-trial Order inWordPerfect
format, furnishing other counsel with a copy. It is anticipated that in most cases the
proposed order, with only minor insertions and changes, could be adopted by the
court and signed at the close of the hearing.
A sample of a proposed Pre-trial Order is available on the Chamber web site
(http://www.alnd.uscourts.gov/content/judge-abdul-k-kallon) to illustrate the
format preferred by the court and also to provide additional guidance and
instructions. Each order must, of course, be tailored to fit the circumstances of the
Case 2:15-cv-02170-AKK Document 32 Filed 07/13/17 Page 14 of 14
Counsel drafting this proposed order should consider the utility this
document will provide for the litigants, the jury, and the court alike. The court
anticipates using the pretrial order to (1) identify and narrow the legal and factual
issues remaining for trial, and (2) provide jurors with the legal and factual context
of the dispute. This order should not revisit at length arguments made in previous
filings with the court, nor should it serve as another venue for adversarial
posturing. Pretrial orders should be simple, short, and informative.
IN ANY CASE WHERE COUNSEL HAVE ANNOUNCED
SETTLEMENT TO THE COURT, A CONSENT JUDGMENT IN
SATISFACTORY FORM MUST BE PRESENTED TO THE COURT PRIOR TO
THE SCHEDULED TRIAL DATE; OTHERWISE, THE CASE WILL BE
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