Nettles et al v. Daphne Utilities

Filing 183

Order re: Bench Trial held on 7/30/2015. The Court finds for the defendant, Daphne Utilities, and against the plaintiff, Voneka Nettles, on all claims and causes of action she has asserted herein. Accordingly, it is ordered that plaintiff Voneka Nettles shall have and recover nothing from Daphne Utilities. Signed by Chief Judge William H. Steele on 8/17/2015. copies to parties. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
VONEKA Q. NETTLES,
Plaintiff,
v.
DAPHNE UTILITIES,
Defendant.

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CIVIL ACTION 13-0605-WS-C

ORDER
A non-jury trial was held in this matter on July 30, 2015. Pursuant to Rule 52(a)(1),
Fed.R.Civ.P., the Court now finds the facts specially and states its conclusions of law separately.
I.

Nature of the Case.
This employment discrimination action was brought by Voneka Nettles against her

former employer, Daphne Utilities. As set forth in the Joint Pretrial Document (doc. 126),
Nettles’ sole claim for relief is that Daphne Utilities discriminated on the basis of her race
(African-American) by paying her lower wages than two Caucasian employees, Pam Kellum and
Tonya Whigham, who performed a substantially similar job. The Joint Pretrial Document
reflects that Nettles’ wage discrimination claim against Daphne Utilities is asserted pursuant to
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., and 42 U.S.C.
§ 1981, made actionable by 42 U.S.C. § 1983. For its part, Daphne Utilities denies that Nettles’
race was a motivating factor in its decision to pay her a lower hourly wage than Kellum or
Whigham, and maintains that there were valid nondiscriminatory reasons for the pay disparity.
The triable issues of law and fact joined in this matter are confined to those delineated in
the Joint Pretrial Document, as incorporated in the Order on Pretrial Conference (doc. 132). To
the extent that any party argues for adjudication in its favor of a triable claim or defense not
identified in the Joint Pretrial Document, that argument is rejected because, as the Court
previously explained, the Joint Pretrial Document “shall constitute the final statement of the
issues involved in this action, govern the conduct of the trial, and form the basis for any relief

afforded by the Court.” (Doc. 132, at 1-2.)1 In resolving such triable issues, the Court has
reviewed and considered the following: (i) all witness testimony and exhibits admitted into
evidence at the bench trial conducted on July 30, 2015; and (ii) the parties’ post-trial briefs (docs.
180 & 182) relating to Defendant’s Motion for Judgment as a Matter of Law (doc. 178).2
II.

Findings of Fact.
A.

Defendant’s Hiring and Initial Pay Rate Decisions for Plaintiff.

Daphne Utilities hired Voneka Nettles on August 1, 2005 for the position of Accounts
Receivable Clerk. The hiring decision was made by Teresa Logiotatos, who was (and still is) the
Finance Manager for Daphne Utilities. At that time, Nettles was employed as a medical assistant
for Eastern Shore Family Practice, earning $8.20 per hour. Logiotatos did not consider Nettles’
1

The Order on Pretrial Conference elaborates that “[d]ispositive legal issues that
are not contained in the parties’ Joint Pretrial Document, or in any amendments to that document
expressly permitted by order of the Court, will not be considered.” (Id. at 2.)
2

The Motion for Judgment as a Matter of Law is denied for both technical and
practical reasons. The technical reason is that it was incorrectly brought pursuant to Rule 50(a),
Fed.R.Civ.P., which applies only to jury trials, rather than Rule 52(c), Fed.R.Civ.P., which
applies to non-jury trials. See, e.g., Hepsen v. Resurgent Capital Services, LP, 383 Fed.Appx.
877, 884 (11th Cir. June 17, 2010) (“As the Court has explained and as Rule 50 clearly states, a
Rule 50 motion applies only in civil cases tried to a jury.”); Smith v. Haden, 872 F. Supp. 1040,
1043 (D.D.C. 1994) (“By its terms Rule 50 only applies in cases tried to a jury. … Therefore, it
is not appropriate to make a Rule 50 motion in a bench trial or for the Court to rule on such a
motion.”). The practical reason is that the most compelling aspects of defendant’s Motion hinge
on a selective reading of facts presented at trial that necessarily requires judicial fact-finding.
While Rule 52(c) authorizes district courts in non-jury trials to issue judgment on partial
findings, it does not require them to do so, but instead allows district courts to “decline to render
any judgment until the close of the evidence.” Rule 52(c), Fed.R.Civ.P. Under the
circumstances presented here, the difference between tackling the merits of a Rule 52(c) motion
at the close of all the evidence and issuing Rule 52(a) findings of fact and conclusions of law
appears to be largely one of semantics. There is no material difference between entering a
judgment pursuant to Rule 52(a) and doing so under Rule 52(c) at the close of all the evidence;
rather, the Motion for Judgment as a Matter of Law would entail the functional equivalent of the
Rule 52(a) protocol that this Court must follow anyway. See generally Bowen v. Celotex Corp.,
292 F.3d 565, 566 (8th Cir. 2002) (“A district court must make credibility determinations and
findings of fact under both Rule 52(a) and Rule 52(c) …, so the district court would have likely
written a nearly identical opinion had it nominally proceeded under Rule 52(c).”). So the Motion
is unnecessary. Notwithstanding the denial of defendant’s Rule 50(a) Motion, the Court has
considered – and this Order does take into account – the various legal and factual arguments
presented by the parties in their post-trial briefs.

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medical experience to be relevant to the Accounts Receivable Clerk job; however, Nettles had
previously spent more than nine years as a bank teller (including accounting duties) and financial
sales associate at Regions Bank. Logiotatos did deem Nettles’ teller experience to be relevant
and helpful in the hiring decision. Nothing in Nettles’ educational background (high school
diploma, with additional study in the fields of medical assistant and marketing) stood out to
Logiotatos as bearing on her qualifications and ability to perform the Accounts Receivable Clerk
job.
Logiotatos was also responsible for setting Nettles’ initial rate of pay as Accounts
Receivable Clerk. In making this determination, Logiotatos considered the pay range and job
duties for the position, as well as Nettles’ education, experience and salary level at her previous
job. To Logiotatos, the salary history variable is significant because, in her experience, job
applicants may be less likely to accept an offer of employment if the starting pay does not exceed
what they had been earning previously. After considering all of these factors, Logiotatos
selected a starting pay rate of $9.39 per hour, representing a $1.19 hourly increase above what
Nettles was earning in her medical assistant position. Logiotatos did not consider Nettles’ race
in fixing her starting rate of pay. Nettles accepted the job offer and began working for Daphne
Utilities in August 2005.
B.

Plaintiff’s Duties, Job Performance and Pay Raises.

As Accounts Receivable Clerk, Nettles’ primary job duties consisted of waiting on and
taking payments from Daphne Utilities customers at both a lobby counter and a drive-through
window. Nettles was responsible for processing customer payments, whether made by cash,
check, credit card or electronic transfer. She was also required to post receivable batches,
reconcile her cash drawer at the end of her shift, and prepare a daily cash deposit report. These
primary job duties (focused on the accounts receivable function) remained constant for Nettles
from the time she began working at Daphne Utilities in 2005 through the filing of her EEOC
Charge against defendant in June 2013.3

3

This is so, despite the fact that Daphne Utilities modified her job title from
Accounts Receivable Clerk to Accounting Technician at some point. Neither Nettles’ primary
duties nor her accounts receivable focus changed after her position was reclassified to
Accounting Technician.

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The Finance Department at Daphne Utilities was a small department, consisting of
Logiotatos (Finance Manager), Nettles (Accounts Receivable Clerk), Pam Kellum (Accounting
Technician I, responsible for the accounts payable function), Rebecca Williamson (Accounting
Assistant), and a customer service representative. In order to minimize disruption to department
operations when one or more employees happened to be out of the office, Logiotatos considered
employee cross-training to be a high priority. Thus, Nettles was cross-trained in accounts
payable functions, and Kellum – her counterpart who performed the accounts payable job – was
cross-trained in accounts receivable duties. Notwithstanding Logiotatos’s cross-training
initiative, however, Nettles’ day-to-day responsibilities were squarely focused on the accounts
receivable function, and Kellum directed most of her time and efforts to the accounts payable
function. In other words, the mere fact of cross-training did not erase or blur the distinction
between the accounts receivable job (held by Nettles) and the accounts payable job (held by
Kellum), nor did it yield a situation where those two employees interchangeably performed each
other’s duties on a day-in, day-out basis. At all relevant times, Nettles’ primary function and
focus at Daphne Utilities lay in the area of accounts receivable, not accounts payable. Even
when Kellum was away from the office, Nettles’ duties remained centered on accounts
receivable.
During the relevant time period, Nettles consistently performed her duties for Daphne
Utilities at a high level. She received uniformly favorable annual performance evaluations.
Indeed, Logiotatos felt that Nettles was a very good employee, thought highly of her efforts, and
believed that Nettles’ performance in her primary job was excellent.4 Nettles had no
performance issues of any kind during the relevant time period. Consequently, in each year
except for 2011 (when Daphne Utilities awarded no increases to any employees), Nettles
received a substantial pay raise as recommended by Logiotatos. In particular, Nettles received a
$1.21 merit increase in December 2006, an $0.80 merit increase in December 2007, a $0.70
merit increase in December 2008, a $0.60 merit increase in December 2009, a $0.69 merit

4

Logiotatos was not alone at Daphne Utilities in praising Nettles’ performance.
On at least two occasions, Rob McElroy, then the utility’s general manager, sent handwritten
notes to Nettles recognizing her excellent work and her integral role in the utility’s success.

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increase in December 2010, and a $1.00 merit increase in December 2012, raising her total
hourly wage to $14.39 at that time.
C.

Defendant’s Hiring and Pay Decisions as to Pam Kellum.

In July 2005, mere weeks before Nettles arrived, Daphne Utilities hired a Caucasian
female named Pam Kellum for the vacant position of Accounting Technician I. This job was the
accounts payable position in the Finance Department, supervised by Logiotatos.5 Kellum’s
primary job duties included matching purchase orders with invoices after products were
received, entering vendor transactions into the computer, verifying account numbers, printing
and distributing vendor checks, and the like. In brief, when Daphne Utilities receives a vendor
invoice, the accounts payable technician (i.e., Kellum) was responsible for collecting all
supporting documentation from within the utility, obtaining necessary signatures approving and
authorizing payment for the invoice, issuing checks for payment of such invoice in a timely
manner (before finance charges accrue), tracking and reconciling inventory, and preparing and
reviewing appropriate reports. At any given time, the accounts payable employee juggles
numerous invoices simultaneously, seeking to ensure that they are paid in a timely and correct
manner.6 The accounts payable employee also assists with the receivables function by
maintaining a cash drawer and waiting on customers in the lobby as needed.
Logiotatos selected an initial hourly wage for Kellum of $10.37 per hour, or $0.98 higher
than Nettles’ starting pay rate, even though both began working at Daphne Utilities at almost
exactly the same time. Logiotatos based her decision as to Kellum’s starting pay on various
nondiscriminatory factors, including Kellum’s relevant work history (reflecting more than a
decade’s worth of accounting experience, including accounts payable, accounts receivable,
reconciliation, payroll, inventory), her educational background (a bachelor of science degree in
5

Later, Daphne Utilities reclassified this position with the title “Accounting
Technician.” Kellum’s job duties and, specifically, her orientation toward the accounts payable
function, remained the same despite this modification in her job title.
6

At trial, Logiotatos colorfully characterized the accounts payable job as “chasing
paper” and indicated that the employee performing those duties at Daphne Utilities faces a
“continuous, everyday fight” to complete such tasks. There was also testimony that the
employee performing the accounts payable function may need one to two weeks to process a
single invoice, whereas the accounts receivable technician typically completes each transaction
within a couple of minutes.

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business), and her rate of pay at her prior job ($10.00 per hour, such that Logiotatos adhered to
her practice of offering a little bit more to the applicant to entice her to accept employment at
Daphne Utilities). Logiotatos also expressly considered the duties of the position for which
Kellum was being hired. In that respect, Logiotatos viewed the accounts payable job that
Kellum was being offered as more detailed, more complicated, more time-consuming, more
tedious, and more difficult than the accounts receivable position held by Nettles. Indeed,
Logiotatos reasonably deemed the accounts payable function to demand more skill, more effort,
and more responsibility than the accounts receivable function. Nor was this perception confined
to Logiotatos. Daphne Utilities had always compensated its accounts payable clerk more highly
than its accounts receivable clerk. This state of affairs was not new, and it did not commence
with Nettles’ arrival at the utility in August 2005.7
Logiotatos considered Kellum to be a good employee, at least until Kellum abruptly
resigned from Daphne Utilities without notice in January 2013. There is evidence that Kellum’s
merit increase in December 2012 was smaller than Nettles’; however, the trial record discloses
neither the amount of Kellum’s annual raises nor her specific pay history at Daphne Utilities
beyond her starting hourly rate of $10.37.8

7

Nettles challenges Logiotatos’s credibility on this point by testifying about a
conversation concerning pay rates if Nettles were to apply for the accounts payable job vacated
by Kellum in January 2013. The Court makes a factual finding, however, that Logiotatos never
told Nettles that no raise was available if she were transferred to the accounts payable position.
Insofar as she discouraged Nettles (either implicitly or explicitly) from applying for the job by
stating that a raise was not a certainty, Logiotatos did so only because of her assessment (borne
of her own observations of Nettles’ performance in attempting to cover accounts payable duties
following Kellum’s resignation) that Nettles lacked the necessary expertise and know-how to
perform the accounts payable job at a satisfactory level.
8

To be sure, there is evidence that Kellum continued receiving a higher hourly
wage than Nettles throughout the period of Kellum’s employment. Specifically, Nettles testified
that during the two-year period predating her June 2013 EEOC Charge, she was paid a total of
$2,400 less than her colleagues in the accounts payable position (which was Kellum until
January 2013, then Tonya Whigham). However, the evidence admitted at trial does not allow the
Court to compare specific annual raises given to Kellum and Nettles each year, or to quantify the
precise differences in their pay at any point in time after their initial hire. There is no evidence,
for example, that in any particular year Nettles received a smaller pay increase than Kellum,
much less that Daphne Utilities was motivated by race in doling out such raises.

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D.

Defendant’s Hiring and Pay Decisions as to Tonya Whigham.

Following Kellum’s departure in January 2013, Daphne Utilities hired a Caucasian
female named Tonya Whigham to fill the accounts payable position. Whigham’s credentials
included a two-year college degree in business management and accounting, as well as more
than 20 years of experience as an accounting manager / office manager (including general ledger,
accounts payable, accounts receivable and payroll duties) for a company called Infinite Business
Solutions, earning a final rate of pay of $14.50 when she left the job in July 2012. Most recently,
Whigham had worked briefly at a friend’s veterinary practice; however, she was not presently
employed when she applied for the Daphne Utilities position. Logiotatos was struck by
Whigham’s extensive accounting and collection experience, as well as her degree in business
management and accounting. In selecting a starting rate of pay for Whigham, Logiotatos
considered those factors, the nature of the accounts payable position, and her prior pay rate of
$14.50 (again, in keeping with Logiotatos’s philosophy of offering new hires a little more in
order to entice them to come to work for Daphne Utilities). Logiotatos ultimately set Whigham’s
starting pay at $14.70 per hour. At the time, Nettles was earning $14.39 per hour, or $0.31 less
than Whigham.
During the relevant time period that Whigham and Nettles worked together at Daphne
Utilities, the division of labor remained much the same as it had been during Kellum’s
employment. The accounts payable technician (Whigham) performed all accounts payable
duties, and assisted with the accounts receivable function by maintaining a cash drawer and
balancing it each day. On a daily basis, however, the accounts receivable technician (Nettles)
did not perform accounts payable functions or materially assist Whigham in the performance of
such duties. Whigham was trained as to the accounts payable duties at Daphne Utilities by
Logiotatos and Rebecca Williamson, the Accounting Assistant.
III.

Conclusions of Law.
As noted, Nettles’ only triable claim is that Daphne Utilities discriminated against her on

the basis of race, in violation of Title VII and § 1981, by paying her less than similarly situated
white co-workers, Kellum and Whigham. At trial, a plaintiff in Nettles’ position “bears the
ultimate burden of proving that discriminatory animus was a determinative factor in the adverse
employment decision.” Palmer v. Board of Regents of University System of Ga., 208 F.3d 969,
974 (11th Cir. 2000); see also Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1322 (11th Cir.

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1999) (at trial, “Plaintiffs had the ultimate burden of persuading the jury that Wal-Mart
discriminated against Plaintiffs”). The plaintiff may satisfy this burden “either directly by
persuading the fact finder that a discriminatory reason more likely motivated the employer or
indirectly by showing that the employer’s proffered explanation is unworthy of credence.”
Palmer, 208 F.3d at 974 (citation and internal marks omitted).
Either way, the proper inquiry remains whether race was a motivating factor in the
challenged employment action. See, e.g., Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322,
1334 (11th Cir. 1999) (proper legal standard is whether plaintiff’s protected characteristic “was a
motivating factor in the Defendant’s decision to terminate the Plaintiff”); Dudley, 166 F.3d at
1322 (identifying proper legal standard as whether plaintiff proved by a preponderance of the
evidence that race “was a substantial or motivating factor in Defendant’s employment
decisions”); Eleventh Circuit Civil Pattern Jury Instructions (2013 ed.), § 4.5 (in race
discrimination cases, plaintiff must prove by a preponderance of the evidence that race “was a
motivating factor that prompted” the adverse employment action). The Court thus examines
whether Nettles has met her burden of proving by a preponderance of the evidence that race was
a motivating factor in Daphne Utilities’ decision to pay her less than white co-workers Pam
Kellum and Tonya Whigham.9
9

Now is an appropriate time to clear up three misconceptions in the parties’ written
submissions concerning the applicable legal standard. First, in their Joint Pretrial Document and
in defendant’s post-trial brief, the parties propose that Nettles’ claims be reviewed using the
McDonnell Douglas burden-shifting framework of prima facie case, legitimate
nondiscriminatory reason, and pretext. (Doc. 126, at 2; doc. 182, at 1-2.) This formulation of
legal elements is incorrect for trial purposes. See, e.g., U.S. Postal Service Bd. of Governors v.
Aikens, 460 U.S. 711, 713-14, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) (“Because this case was
fully tried on the merits, it is surprising to find the parties and the Court of Appeals still
addressing the question whether Aikens made out a prima facie case. We think that by framing
the issue in these terms, they have unnecessarily evaded the ultimate question of discrimination
vel non.”); Holland v. Gee, 677 F.3d 1047, 1057 (11th Cir. 2012) (where case has been fully tried
on the merits, “it is not now appropriate for us to look back to determine whether” plaintiff
established prima facie case, but “[i]nstead, we must proceed directly to the ultimate question”);
Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1194 (11th Cir. 2004) (“After a trial
on the merits, an appeals court should not revisit whether the plaintiff established a prima facie
case. … The only relevant question becomes whether Cleveland’s termination was motivated by
her disability.”); Farley, 197 F.3d at 1333 (“The McDonnell Douglas stages are simply a method
of analysis for organizing a discrimination case in its initial stages to determine if a case has
enough evidence to reach a jury in the first place. … [O]nce the McDonnell Douglas framework
(Continued)
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As an initial matter, plaintiff has established that she was paid less than two white coworkers (Kellum and Whigham) who held the same job title (Accounting Technician). But the
Court finds that Nettles has failed to prove that the complained-of pay disparity was motivated
by race. Nettles’ job duties were fundamentally different than those of her white comparators.
Nettles’ primary duty was to perform the accounts receivable function at Daphne Utilities, while
Kellum’s and Whigham’s primary duty was to perform the accounts payable function.
Historically, Daphne Utilities always paid its accounts payable technician a higher hourly wage
than its accounts receivable technician, simply because of defendant’s reasonable business
judgment that that the accounts payable job was more difficult, more complex, more timeconsuming, and required more skill, effort and responsibility than the accounts receivable job.

has been met by both parties in the pretrial stages, it ‘simply drops out of the picture’” during
trial) (citations omitted); Richardson v. Leeds Police Dep’t, 71 F.3d 801, 806 (11th Cir. 1995)
(“When the trier of fact has before it all the evidence needed to decide the ultimate issue of
whether the defendant intentionally discriminated against the plaintiff, the question of whether
the plaintiff properly made out a prima facie case is no longer relevant.”).
Second, plaintiff’s post-trial brief repeatedly cites to Equal Pay Act cases in defining the
governing legal standard. (Doc. 180, at 1-2, 3-4, 9.) This is a Title VII / § 1981 case, not an
Equal Pay Act case. “The burdens of proof are different under the two laws.” Miranda v. B & B
Cash Grocery Store, Inc., 975 F.2d 1518, 1526 (11th Cir. 1992). Moreover, to the extent that
Nettles relies on Equal Pay Act cases to argue that “[t]he focal point is a comparison of the jobs
at issue not the employees” (doc. 180, at 1-2), she misapplies those authorities. Even in Equal
Pay Act cases, employee-specific factors such as education and experience remain highly
relevant. See Miranda, 975 F.2d at 1533 & n.18 (explaining that at prima facie case stage, “the
jobs and not the employees are compared,” but that “[f]actors such as experience and education
operate as a defense to liability” in Equal Pay Act context).
Third, in its Motion for Judgment as a Matter of Law, Daphne Utilities argues that
Nettles “has not established that her salary was the result of a policy, practice or custom of
Defendant Daphne Utilities to violate her right to be free from race discrimination.” (Doc. 178, ¶
4.) There are authorities recognizing that where, as here, a § 1981 claim is asserted against a
governmental entity using the vehicle of § 1983, proof of a custom or policy is necessary. See,
e.g., Dunklin v. Montgomery County Bd. of Education, 652 F. Supp.2d 1226, 1235 (M.D. Ala.
2009) (collecting cases). But Daphne Utilities neglected in the Joint Pretrial Document to
identify “policy, practice or custom” as an element that plaintiff must prove at trial. Having
omitted that item from the Joint Pretrial Document, defendant has waived any right to seek
judgment as a matter of law based on plaintiff’s failure to adduce proof of same. A litigant
cannot remain silent as to the existence of an element of proof of the plaintiff’s claim in the Joint
Pretrial Document, then demand judgment at the close of trial based on plaintiff’s failure to
produce evidence supporting that (heretofore undisclosed) element.

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Aside from differences in the positions themselves, Daphne Utilities also relied on nonrace differences between the plaintiff and the comparators in fixing different wages for each.
Kellum had a college degree in business and more than a decade’s worth of accounting-related
work experience, including accounts receivable, accounts payable, inventory, reconciliation and
payroll. Her most recent job paid $10.00 per hour at the time of her interview at Daphne
Utilities. By contrast, Nettles lacked relevant post-secondary education, was currently working
as a medical assistant (not relevant to an accounts receivable job) for $8.20 per hour, and had
relevant work experience only as a bank teller. Logiotatos weighed all of these
nondiscriminatory factors in offering Kellum a starting salary of $10.37 per hour, as compared to
$9.39 for Nettles at the same time. The same is true with respect to Whigham, who arrived at
Daphne Utilities with a two-year college degree in business management and accounting, as well
as more than 20 years of experience as an accounting manager / office manager (including
general ledger, accounts payable, accounts receivable and payroll duties), whose final rate of pay
in that position was $14.50.
In short, Daphne Utilities established at trial that it paid Nettles less than Kellum and
Whigham not because of race, but because (i) Kellum’s and Whigham’s job was more complex
and time-consuming, and required more skill and responsibility, than Nettles’ job; (ii) Daphne
Utilities had historically paid the occupant of the Kellum / Whigham job more than the occupant
of the Nettles job; (iii) Daphne Utilities valued Kellum’s and Whigham’s superior educational
background and relevant work experience, both of which exceeded Nettles’; and (iv) Daphne
Utilities adhered to its practice of offering new hires increases over their last pay rates to
encourage them to accept the job. The Court finds these stated non-discriminatory reasons for
the pay differential to be credible, and rejects plaintiff’s contention that defendant’s proffered
explanations are so unbelievable as to amount to a cover-up (i.e., a pretext for race
discrimination).10
10

In so concluding, the Court has carefully considered each of plaintiff’s pretext
arguments and the corresponding proof. For example, plaintiff points to evidence that Nettles
and Kellum had been cross-trained to perform each other’s job functions as proof that their jobs
were actually the same. This argument misses the point. Defendant’s evidence was – and the
Court finds – that, regardless of cross-training, Kellum’s day-to-day job duties diverged
markedly from Nettles’. Even if they were capable of performing each other’s jobs, the fact is
that they did not routinely do so. Kellum’s focus each day was on her accounts payable duties.
(Continued)
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The ultimate question in this case is whether Voneka Nettles has shown by a
preponderance of the evidence that her race was a motivating factor that prompted Daphne
Utilities to pay her a lower hourly wage than her white colleagues, Pam Kellum and Tonya
Whigham. The Court, in its role as fact finder following a non-jury trial, answers that question
in the negative. Daphne Utilities paid Nettles less than Kellum and Whigham for legitimate
reasons wholly unrelated to race. Daphne Utilities reasonably determined that Kellum and
Whigham warranted higher pay because they performed a tougher, more burdensome job each
day than Nettles did; because they came to the utility with higher levels of education and relevant
experience than Nettles did; and because their starting salaries were set by reference to their prior

Nettles’ focus each day was on her accounts receivable duties. The accounts payable job was
more difficult, more complex and required more skill, effort, and responsibility than the accounts
receivable job. In recognition of that fact, it was an entirely reasonable nondiscriminatory
decision for Daphne Utilities, as a matter of policy, to pay the accounts payable technician more
than the accounts receivable technician, whether or not they had been trained to cover each
other’s duties in a pinch. Next, plaintiff argues that Nettles actually did the same thing each day
as Kellum and Whigham did. The Court makes a specific finding of fact, based on the evidence
presented at trial, that she did not. There were substantial differences in their everyday job duties
and responsibilities, and plaintiff’s attempt to reduce those divergent functions to the identical
acts of handling funds, posting payments, pressing keys and entering data into a computer system
is both an oversimplification and a distortion of what actually happened. Plaintiff also quarrels
with defendant’s use of education and experience as factors in the compensation calculus for
Kellum and Whigham, but Logiotatos testified that those attributes mattered to her in fixing
starting salaries. It is hardly unreasonable, unbelievable or implausible to suggest that an
employer might value incoming accounting employees more highly if they have more extensive
educational and work backgrounds bearing directly on accounting functions. Finally, plaintiff
challenges Daphne Utilities’ evidence that Whigham’s starting pay was set slightly above her
previous $14.50 hourly wage to encourage her to accept the position. Plaintiff contends this
assertion is pretextual because Whigham was unemployed at the time and, perhaps, needed no
additional financial inducement. This argument amounts to idle second-guessing of the
employer’s reasonable business judgment. Logiotatos had an established practice of offering
new employees wages above their previous pay to encourage them to accept the job. It was not
unreasonable (or indicative of pretext) for her to adhere to that practice with respect to Whigham,
notwithstanding the fact that Whigham was not currently employed and the “bump” may or not
have been necessary to convince her to accept the job given her particular circumstances. The
Court concludes that Daphne Utilities’ explanation for the subject pay differences was not so
unbelievable as to amount to a cover-up, and further finds that defendant’s stated reasons were,
in fact, the real reasons for the challenged pay disparity.

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(higher) wages. In short, the Court finds that race was not a motivating factor in the challenged
compensation decisions.
IV.

Conclusion.
For the foregoing reasons, the Court finds for the defendant, Daphne Utilities, and against

the plaintiff, Voneka Nettles, on all claims and causes of action she has asserted herein.
Accordingly, it is ordered that plaintiff Voneka Nettles shall have and recover nothing from
Daphne Utilities. Final judgment will be entered in favor of defendant, and against plaintiff
Nettles, on all claims.
DONE and ORDERED this 17th day of August, 2015.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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