Johnson v. Pine Bluff, City of
ORDER granting 21 Defendants' Motion for Summary Judgment. Signed by Judge Brian S. Miller on 7/25/11. (hph)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTE RN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
SHARON D. JOHNSON
Case No. 5:10-CV-00037 BSM
CITY OF PINE BLUFF and CARL REDUS
Defendants City of Pine Bluff (“Pine Bluff”) and Mayor Carl Redus move for
summary judgment [Doc. No. 21] and plaintiff Sharon D. Johnson objects. [Doc. No. 29].
For the reasons set forth below, summary judgment is GRANTED.
I. FACTUAL BACKGROUND
Johnson began working for Pine Bluff in 1986 as a secretary for the inspection
department. She became the first assistant city collector in 1996. During her time as assistant
city collector, she worked for city collector Betty Massanelli.
Massanelli retired as city collector in 2005, and Johnson was appointed interim city
collector in January 2006. Upon taking the job of interim city collector, Johnson’s salary was
increased to equal Massanelli’s pre-retirement salary. In May 2006, the city hired a new
director of finance. In response, Mayor Redus reduced Johnson’s salary to its original level.
According to Redus, he reduced Johnson’s salary because he wanted to make the collector’s
officer part of the finance department and modernize the way the two offices were run.
Johnson appealed the decision to reduce her salary, and the city counsel voted to
restore her to Massanelli’s rate of pay until the city hired a new city collector or until there
was a change in the way the collector’s office was run. Johnson was granted back pay to
compensate her for the pay she missed between the reduction and reinstatement.
In November 2006, Albert Ridgell applied for the position of information systems
manager. Ridgell had a bachelor’s degree in mathematics and substantial experience working
with computers and computer information systems in banking and finance industries. Redus
contends that once he read Ridgell’s resume, he decided that Ridgell would be a good fit for
the city collector’s office, and would help modernize its operations. He notified Ridgell of
the open collector’s position, and Ridgell agreed to be considered for the position.
Johnson also applied for the city collector’s position. Redus interviewed both Johnson
and Ridgell and hired Ridgell in June 2007. Ridgell accepted the position and Johnson was
returned to her position as first assistant city collector. Her salary was reduced to the original
Johnson then filed this suit pursuant to the Equal Pay Act (EPA), 28 U.S.C. § 1983,
and 28 U.S.C. § 1981. She alleges discrimination in payment and in the hiring process for
the city collector’s job.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper if, after viewing the evidence in the light most favorable
to Johnson, no genuine issues of material fact exist and defendants are entitled to judgment
as a matter of law. Nelson v. Corr. Med. Servs., 533 F.3d 958, 961 (8th Cir. 2008). Johnson
cannot survive the motion for summary judgment merely by pointing to disputed facts; the
facts in dispute must be material to the outcome of the case. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247–48 (1985). If the facts alleged by Johnson, when viewed in the light most
favorable to her case, would not allow a reasonable jury to find in her favor, then summary
judgment should be granted in favor of defendants. Bloom v. Metro Heart Group of St. Louis,
Inc., 440 F.3d 1025, 1029 (8th Cir. 2006).
Johnson contends that she was discriminated against on the basis of her sex because
she was paid less than Ridgell and because she was overlooked for the city collector position.
She does not, however, raise triable issues of fact to take the case to a jury. As such,
summary judgment is GRANTED in favor of defendants.
Equal Pay Act
To establish a prima facie case under the EPA, Johnson must prove that Pine Bluff
and Redus discriminated against her on the basis of sex by paying a man higher wages to
perform equal work in a job requiring equal skill, effort, and responsibility under similar
working conditions. Drum v. Leeson Electric Corp., 565 F.3d 1071, 1072 (8th Cir. 2009);
Tenkku v. Normandy Bank, 348 F.3d 737, 740 (8th Cir. 2003). If Johnson establishes a prima
facie case, the burden then shifts to defendants to prove one of the four statutory affirmative
defenses available under the EPA. These affirmative defenses are: (1) a seniority system; (2)
a merit system; (3) a system that measures earning by quantity or quality of production; or
(4) a differential based on any factor other than sex. 29 U.S.C. § 206(d)(1); Tenkku, 348 F.3d
Johnson has not established a prima facie case under the EPA because she has not
shown that she and Ridgell perform equal work. In her deposition, Johnson admits that
Ridgell is responsible for planning, assigning, or directing her work. Johnson Deposition
28:6–7. She also admits that Ridgell is ultimately responsible for all the money collected by
Pine Bluff and for enforcing regulations and ordinances pertaining to the collection and
payment of monies and taxes. Id. 26:8–28:1. In her response to defendants’ statement of
undisputed facts, Johnson attempts to mitigate these admissions by contending that she too
is responsible for directing work, collecting monies, and enforcing ordinances. Pls. Fact
Response ¶¶ 55, 61, 62. Despite these responses, it is clear from Johnson’s own admission
that Ridgell has the ultimate responsibility for the City Collector’s Office and its
management. Johnson Dep. 27:14–16. Additionally, Johnson admits that Ridgell is
responsible for approving her vacation and sick leave, for reporting to the mayor, drafting
reports for the mayor’s office, attending department head meetings, producing the
department’s budget, interfacing with the Finance Department, and attending outside
meetings. Pls. Fact Response ¶¶ 54, 57–59, 63.
The undisputed facts demonstrate that Ridgell’s duties and Johnson’s duties are
unequal. The undisputed facts also demonstrate that Ridgell supervises Johnson. For these
reasons, summary judgment is appropriate on Johnson’s EPA claim.
Failure to Promote
Johnson claims that defendants discriminated against her based on her sex by refusing
to promote her to city manager. She argues that she has created triable issues of fact through
both direct and indirect evidence of discrimination.
1. Direct evidence
Johnson claims that she has produced direct evidence of discrimination. She cites
three specific pieces of evidence: (1) statements from the city council that Redus is
discriminating based on gender; (2) statements made by interim human resources manager
Vicki Conaway that Redus discriminated against Johnson based on sex; and (3) statements
made by Ken Ferguson, a former human resources manager, describing the Redus’s
violations of hiring policy as throwing up a “red flag.” As noted below, this “evidence” is
largely unsupported by the record and does not provide direct evidence of discrimination
sufficient to create triable issues of fact.
Johnson’s reference to the statements made at a city counsel meeting does not present
direct evidence of discrimination. The evidence comes from the deposition of Vickie
Conaway. In the deposition, Johnson’s attorney asks Conaway if she is aware of a meeting
where two aldermen indicated that the mayor was not paying women correctly and might
cause a lawsuit. Conaway responds, “Yes.” Johnson’s attorney then asks, “In that meeting,
was it their opinion that the mayor was paying women differently because of their gender?”
Conaway responds, “I assume that was their opinion, because they did say that.” Conaway
Dep. 24:19–25:9. This testimony offers no direct evidence of discrimination and is based on
conjecture and hearsay. Moreover, the aldermen were referring to the pay of a woman totally
unrelated to this lawsuit. The testimony had nothing to do with whether the mayor or the city
discriminated against Johnson in hiring for the position of city collector.
Johnson’s reference to the testimony of Conaway regarding the hiring of the city
collector is misleading and presents no direct evidence of discrimination. When Johnson’s
counsel pressed Conaway to state that the mayor had committed sex discrimination, Conaway
replied, “It looks like it, but I’m not going to conclude that.” Conaway Dep. 41:8–18.
Conaway herself presented no direct evidence of discrimination, and ultimately refused to
conclude that discrimination had occurred. Her statement is at best an inference supported
by personal opinion. Johnson may not cloak inference as direct evidence by making
misleading references to the record or by citing conjecture and innuendo as fact.
Johnson’s reference to the testimony of Ken Ferguson is likewise misleading and does
not provide any evidence of discrimination. In a deposition, Johnson’s counsel asked
Ferguson: “if a policy is not followed and a male is selected over a female that has actually
been doing the job, then a red flag can be thrown up; correct?” Ferguson Dep. 42:22–25.
Ferguson refused to take a position on whether under those circumstances a “red flag” would
be thrown up. He likewise did not claim that the mayor’s hiring of Ridgell violated a policy.
Ferguson simply stated, “We’re getting there. I’m going to answer. A red flag would be
thrown up if indeed policy was not followed.” None of this testimony provides direct
evidence of discrimination.
2. Indirect evidence
Johnson also contends that she has presented circumstantial evidence of
discrimination. Her circumstantial evidence is analyzed through the McDonnell Douglas
burden shifting analysis. See McDonnell Douglas v. Green, 411 U.S. 792 (1973). To prove
sex discrimination, Johnson must first set forth the elements of a prima facie case. If she
establishes a prima facie case, the burden of production then shifts to the city to articulate
a non discriminatory reason for declining to promote her. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the city comes forward with a legitimate nondiscriminatory reason, then the burden shifts back to Johnson to prove by a preponderance
of the evidence that the proffered reason is merely a pretext for discrimination. Id.
To establish a prima facie case of discrimination Johnson must show: (1) that she is
a member of a protected group; (2) that she was qualified and applied for a promotion to a
position for which the city was seeking applicants; (3) that despite her qualifications, she was
rejected; and (4) that the city hired or promoted a person of similar qualifications who was
not a member of the same protected group. Marzec v. Marsh, 990 F.2d 393, 395–96 (8th Cir.
Whether Johnson has established a prima facie case of discrimination is not addressed
because the defendants have obviously met their burden of articulating a non-discriminatory
reason for hiring Ridgell. Defendants contend that Ridgell was hired because: (1) he is better
qualified, and (2) he has the background in computers required to update and modernize the
city collector’s office.
Defendants’ contention that Ridgell was better qualified for the position is supported
by the record. Johnson is a high-school graduate with one year of technical college and has
experience working in the city collector’s office. Ridgell has a college degree in mathematics
and a substantial background in computers, accounting, information management, and
financial systems. Def.’s Fact Stmnt. Ex. S. Although Johnson contends that her prior
experience also qualified her for the job of city collector, she has presented no evidence that
her qualifications surpassed or even equaled those of Ridgell.
Johnson responds to Ridgell’s superior qualifications by contending that he did not
meet the minimum qualifications for the job. In support of this argument she puts forward
the deposition of Vickie Conaway, the interim human resources director. According to
Johnson, Conaway claims that Ridgell is not qualified for the position of city collector. This
argument, however, misstates Conaway’s deposition. Conaway clearly states that both
Ridgell and Johnson met the minimum qualifications for the job. Conaway Dep. 19:5–7.
Moreover, Conaway admits that she was not human resources manager at the time of the
hiring, was not involved in the hiring process for city collector, and has no personal
knowledge of what qualifications the mayor sought. Def.’s Second Reply Br. Ex 1.
Johnson also fails to articulate any specific way that Ridgell was not qualified for the
position of city collector. A reading of the job description for city collector makes it apparent
why she has failed to do so: her contention is without merit. See Def.’s Fact Stmnt. Ex. W.
It is clear from the record that Ridgell was qualified for the job.
Defendants’ second non-discriminatory reason for hiring Ridgell is that he had the
necessary computer skills to update and automate the city collector’s office. Def.’s Summ.
J. Br. 11–12. According to defendants, Redus wanted to change the way that the city
collector’s office was run, and decided that Ridgell’s background in finance and computers
would improve the office. Redus Aff. ¶¶ 3–13. A federal court does not sit as a superpersonnel department that re-examines the business decisions of defendants. Krenik v.
County of Le Sueur, 47 F.3d 953, 960 (8th Cir. 1995). Pine Bluff and Redus were in the best
positions to determine how to run the city collector’s office and what qualifications a person
should have to fill the role of city collector. Redus’s desire to update and modernize the
collection system is reasonable and his choice of Ridgell is entirely consistent with this
Johnson tries to rebut this reason by contending that Ridgell has not, in fact, updated
and modernized the collection system. This contention is not supported by her own
admissions. Johnson admits that Ridgell implemented a method for city’s collection agency
to access the city’s files and improve collection, and she admits that she did not think to
implement a system like this because she does not have a computer background. Johnson
Dep. 14:22–15:6. The record also contains a number of uncontradicted instances where
Ridgell claims to have modernized the city collector’s office. Ridgell Dep. 58:1–64:4.
Moreover, it is not important that Ridgell ultimately updated the city collector’s office.
What is important is that the mayor and the city honestly believed that Ridgell was capable
of making the desired updates and hired him on this basis. See Villiarimo v. Aloha Island Air,
Inc., 281 F.3d 1054, 1063 (9th Cir. 2002).
Johnson attempts to show pretext by asserting that other women have been
discriminated against by the same mayor. There is, however, no evidence in the record that
the mayor actually discriminated against any of these women. All of the testimony regarding
these other incidents of discrimination is based on conjecture and hearsay.
Finally, Johnson attempts to show pretext by contending that Steve Stevens, a man,
received the maintenance director position without a degree. The analysis here is a bit
convoluted. Johnson contends that this is evidence of pretext because the mayor allegedly did
not hire Vickie Conaway for the position of human resources director because she did not
possess a college degree. According to Conaway, the mayor has a policy of only hiring
people with degrees for director positions, but he made an exception for a man. Johnson
asserts that this demonstrates that Redus’s policy of only hiring people with degrees is merely
a pretext for gender discrimination.
This contention has a number of problems. First, the city presents a number of other
reasons why Johnson was not hired for the position of city collector other than her lack of a
college degree. Second, there is no reason to believe that the director of a maintenance
department is similarly situated to the director of either of a human resources department or
city collector’s office. The skill sets involved in maintenance are dramatically different from
those involved in human resources or revenue collection. It is Johnson’s burden to show that
Stevens is similarly situated, but she has not presented evidence to meet this burden. See
Smith v. Allen Health Systems, Inc., 302 F.3d 827, 835 (8th Cir. 2002).
For the reasons set forth above, defendants’ motion for summary judgment [Doc. No.
21] is GRANTED.
IT IS SO ORDERED this 25th day of July 2011.
UNITED STATES DISTRICT JUDGE
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