Mothershead et al v. Board of School Commissioners of Mobile County
ORDER granting the Board's 25 Motion for Summary Judgment as set out. Signed by Judge Kristi K. DuBose on 10/26/2011. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
ESTHER MOTHERSHEAD, DOROTHY
PERKINS, and NASHASTA POLLARD,
BOARD OF SCHOOL COMMISSIONERS )
OF MOBILE COUNTY, ALABAMA,
BOARD OF SCHOOL COMMISSIONERS )
OF MOBILE COUNTY, ALABAMA,
Civil Action No. 10-0038-KD-C
STEPHANIE R. LINDSEY,
Civil Action No. 10-0285-KD-C
Plaintiffs’ claims pursuant to the Equal Pay Act, 29 U.S.C. § 206(d)(1), are now before
the Court on the motions for summary judgment filed by defendant Board of School
Commissioners of Mobile County, Alabama (the Board) (Docs. 25, 26, Civil Action No. 11-038KD-C; Docs. 21, 22, Civil Action No. 11-285-KD-C), plaintiffs’ response (Docs. 28, 29, 30,
Civil Action No. 11-038-KD-C; Docs. 26, 27, 28, Civil Action No. 11-285-KD-C) and the
Board’s reply (Doc. 31, Civil Action No. 11-038-KD-C; Doc. 29, Civil Action No. 11-285-KDC). Upon consideration and for the reasons set forth herein, the motion for summary judgment
as to plaintiffs’ claims under the Equal Pay Act, 29 U.S.C. § 206(d)(1) (EPA) is GRANTED.
Findings of fact
At all relevant times, Plaintiffs were employed by the Board as Utility Workers. Their
primary duties are to assist school bus inspectors (who are certified bus mechanics) in
performing school bus inspections and to drive the school buses as relief or emergency drivers
for the regular bus drivers. (Doc. 26-2, Defendant’s proposed facts, p. 2; Doc. 28, Plaintiffs’
proposed facts, p. 2-3, Civil Action No. 11-038-KD-C).
Jerome Toomer has been indentified by the Plaintiffs as a comparator. (Doc. 28, p. 3).
He was formerly employed as a Utility Worker and performed the same work as Plaintiffs. (Id. p.
3). On November 26, 2008, Toomer was promoted to Mechanic Apprentice and received a pay
increase. (Id. p. 3).
The position of Mechanic Apprentice was created by the Board in the fall of 2008 as a
step between Utility Worker and Mechanic. (Doc. 26-2, p. 2). The purpose was to train
mechanics internally who could meet state certification requirements. (Id.). The job duties were
similar to those of a Utility Worker in that Mechanic Apprentices would drive in emergency
circumstances and they would assist bus inspectors with inspections but they were also required
to assist the mechanics with repairs, maintenance, and diagnostics on the buses. (Id.) Plaintiffs
Mothershead, Perkins and Pollard also applied for the Mechanics Apprentice position but were
not selected. (Doc. 26-2, p. 3).
At the time Toomer was promoted to Mechanic Apprentice, one Utility Worker was on
extended medical leave. (Doc. 26-2, p. 3). Also, the Board lacked funding to hire additional
Utility Workers. (Id.). Toomer was asked to continue to assist the bus inspectors and perform
relief bus driving. (Id.) Toomer continued to drive until the end of the 2009 school year. (Id.;
Doc. 28, p. 4). He drove only in emergency situations after that time. (Doc. 26-2, p. 4). Toomer
also continued to assist with bus inspections until October 2010. (Doc. 28, p. 4). During the time
that Toomer drove and assisted the inspectors, Toomer also assisted the mechanics as time
allowed. (Doc. 26-2, p. 3-4; Doc. 26-1, p. 53-55, Toomer deposition).
The earliest mechanic service work order completed by Toomer was dated June 21, 2010.
(Doc. 28, p. 4). Toomer was assigned to the mechanic shop full time in October 2010. (Doc. 28,
Sarah Horton, the Utility Worker who had been on medical leave resumed assisting with
bus inspections in March 2010. (Doc. 28, p. 8). The parties do not indicate when Horton
resumed driving but do not dispute that she resumed driving when she returned. (Doc. 28, p. 8;
Doc. 31, p. 3). In October 2010, another Utility Worker took over Toomer’s duties of assisting
the bus inspectors. (Doc. 26-2, p. 3-4).
Standard of Review
“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) (Dec. 2010). The recently amended Rule 56(c) governs Procedures, and
provides as follows:
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) 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.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party
may object that the material cited to support or dispute a fact cannot be presented
in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it
may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.
FED.R.CIV.P. Rule 56(c) (Dec. 2010).
The Board, as the party seeking summary judgment, bears the Ainitial responsibility of
informing the district court of the basis for its motion, and identifying those portions of >the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any,= which it believes demonstrate the absence of a genuine issue of material fact.@
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). If the nonmoving party fails to make Aa sufficient showing
on an essential element of her case with respect to which she has the burden of proof,@ the
moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. AIn reviewing whether
the nonmoving party has met its burden, the court must stop short of weighing the evidence and
making credibility determinations of the truth of the matter. Instead, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.@ Tipton v.
Bergrohr GMBH-Siegen, 965 F.2d 994, 998-999 (11th Cir. 1992), cert. den., 507 U.S. 911 (1993)
(internal citations and quotations omitted).
The Equal Pay Act
“A plaintiff establishes an EPA prima facie case ‘by showing that the employer paid
employees of opposite genders different wages for equal work for jobs which require equal skill,
effort, and responsibility, and which are performed under similar working conditions.’” Lawver
v. Hillcrest Hospice, Inc., 300 Fed.Appx. 768, 772 (11th Cir. 2008) quoting Steger v. Gen. Elec.
Co., 318 F.3d 1066, 1077-78 (11th Cir. 2003). “If the plaintiff establishes a prima facie case, the
employer must establish, by a preponderance of the evidence, that the difference in pay was due
to ‘(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity
or quality of production; or (iv) any other factor other than sex.’” Id. at 772, quoting Steger at
1078 (quoting 29 U.S.C. § 206(d)(1)) (alteration omitted).
“If the employer meets its burden, the plaintiff must rebut the defense by establishing,
through affirmative evidence, that the employer's justification was pretext or a post-hoc
justification.” Id. “If the employer fails to establish that the pay differential was for a reason
other than sex, the plaintiff is entitled to judgment, as the EPA does not require her to prove that
the employer acted with discriminatory intent.” Id. (citation omitted).
The Board argues that Plaintiffs cannot make their prima facie case because there are
sufficient differences in job duties to warrant a higher pay rate for Mechanic Apprentice and
because Toomer assisted the mechanics: A duty which none of the Plaintiffs performed or were
expected to perform. The Board argues that the reason Toomer continued to perform some
Utility Worker duties after he was promoted to Mechanic Apprentice was due to circumstances
beyond the Board’s control. Specifically, there was a shortage of Utility Workers because
another Utility Worker was on extended medical leave and the Board was without funds to hire a
replacement for Toomer.
Plaintiffs assert that the “critical question is when did Toomer begin performing work
different from the work that he and the plaintiffs performed as utility workers”. (Doc. 29, p. 3).
They argue that there are genuine issues of fact as to the time frame Toomer continued to
perform substantially the same work as the Plaintiffs, but for a higher rate of pay. Plaintiffs
argue that the Board’s affirmative defense is not adequate because “[m]erely articulating a
factual matter as a factor other than sex is insufficient” and that the Board “must present ‘an
explanation of how those factors actually resulted in an individual employee earning more than
another.’” (Doc. 29, p. 13).
The question as to when Toomer went full time as a Mechanic Apprentice may be
relevant to establishing the prima facie case wherein Plaintiffs must establish that an employee
of the opposite gender, received higher wages for “equal work for jobs which require equal skill,
effort, and responsibility, and which are performed under similar working conditions.’” Lawver,
300 Fed Appx. at 772. It may be true that for some unascertained time period, Toomer
performed similar work as the Plaintiffs, but assuming for purposes of summary judgment that
Plaintiffs could make out a prima face case under the Act, i.e., that Plaintiffs and Toomer
performed “equal work”, id., the Board has demonstrated “how” factors “other than sex”
resulted in Toomer’s receiving greater pay than the Plaintiffs. Brock v. Georgia Southwestern
College, 765 F. 2d 1026, 1037 (11th Cir. 1985) (defendants must present “an explanation of how
those factors actually resulted in an individual employee earning more than another.”); see Irby
v. Bittick, 44 F.3d 949, 955 (11th Cir. 1995) (finding that factors other than sex include “special
exigent circumstances connected with the business.”). Specifically, the Board has shown that
another Utility Worker was on extended medical leave and that the Board lacked funding to hire
additional Utility Workers. Plaintiffs do not dispute these facts.
The facts establish that Toomer applied for and was promoted to Mechanic Assistance
and that Plaintiffs also applied for this position but were not selected.1 However, if a female
Plaintiffs do not argue that gender bias played any role in Toomer’s selection for the
promotion instead of a female applicant.
Utility Worker had been promoted and received a higher rate of pay, there is no evidence to
dispute that she too would have been required to fill in as a driver and assist the bus inspectors
until the other Utility Worker was able to return to work or until the Board could replace her with
a different Utility Worker. The fact that a male was promoted and received a higher pay, but
then for undisputed reasons was required to fill in as a driver and assist the bus inspectors until
the other Utility Worker was able to return to work or until the Board could replace him with a
different Utility Worker does not support an action for Equal Pay. In other words, the Board has
shown by a preponderance of the evidence that the “pay differences” are based on factors other
than sex and that “the factor of sex provided no basis for the wage differential.” Steger, 318 F.
3d. at 1078 (citations omitted). Moreover, Plaintiffs have not produced evidence that the
Board’s “justification was pretext or a post-hoc justification.” Lawver, 300 Fed.Appx. at 772.
Accordingly, for the reason set forth herein, the Board’s motion for summary judgment is
DONE and ORDERED this the 26th day of October, 2011.
/s/ Kristi K. DuBose_
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
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