Mitchell v. The City of Naples et al
MEMORANDUM ORDER - granting in part and denying in part 48 Sealed Motion for Summary Judgment with Brief in Support and 61 Motion for Summary Judgment and Brief in Support. Signed by Magistrate Judge Roy S. Payne on 7/7/2017. (ch, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
§ Case No. 2:16-CV-01039-RSP
THE CITY OF NAPLES, DANNY MILLS,
Currently before the Court are motions for summary judgment filed by Defendant City of
Naples (Dkt. No. 61), and by Defendants Danny Mills and Dennis Chartier (Dkt. No. 48). Both
motions are granted in part and denied in part as follows.
Plaintiff Arthur Mitchell has been employed by the City of Naples, Texas, since April 2007.
On September 21, 2016, he filed this action against the City and its current and former mayors
alleging that he was paid less than similarly situated white employees because he is AfricanAmerican. Mitchell has identified three white comparators to support his allegation of disparate
pay: Henry Vissering, Dwayne Heard, and Loyd Davlin. Defendants’ motions raise four grounds
for dismissal: (1) that none of the comparators are similarly situated and thus cannot serve as the
basis for a valid claim of disparate pay; (2) that Vissering and Heard cannot be valid comparators
because their employment terminated before Plaintiff’s limitations period began; (3) that neither
of the mayors can be legally responsible for any pay disparity because only the City Council can
set the pay of city employees; and (4) there can be no pay claim against the mayors in their
individual capacities under 42 U.S.C. §1981 (Oden v. Oktibbeha County, 246 F.3d 458, 462 (5th
The summary judgment record supports the Defendants’ position that Henry Vissering is
not a proper comparator for Plaintiff because Vissering was a superintendent with certain very
different job duties than Plaintiff. Whether or not Plaintiff could have performed Vissering’s
duties, and even whether Plaintiff did sometimes perform them, is not the issue. Plaintiff’s job
was materially and indisputedly different from Vissering’s. Accordingly, the motions will be
granted to that extent.
While Loyd Davlin eventually became a superintendent, there is a genuine dispute of fact
as to whether he was hired as such. There are also genuine disputes as to the extent of his relevant
experience at the time he was hired and to what extent his job duties differed significantly from
Plaintiff’s. Similarly, there are genuine disputes as to the similarity of the job responsibilities of
Dwayne Heard during the brief period of his employment, and the Court cannot conclude that he
is not a proper comparator.
Defendants point out that both Heard and Vissering left the City’s employment long before
the actionable time frame for Plaintiff’s claims, which the parties agree would be September of
2012. Of course, the Court has already determined that Vissering is not a proper comparator.
However, the fact that Heard left the City in March of 2012 does not prevent Plaintiff from relying
on Heard’s pay to support his claim that his own pay for nearly identical work was discriminatorily
The cases relied upon by Defendants, such as Frazier v. Sabine River Authority, 509
F.App’x 370 (5th Cir. 2013), merely stand for the proposition that a plaintiff cannot recover for a
job that he performed beyond the statute of limitations. They do not hold that a plaintiff cannot
rely upon, as evidence of discrimination, the higher pay that a comparator received for doing the
same job before the limitations period. Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 345
(4th Cir. 1994). Accordingly, the motions are denied with respect to comparison with Heard and
Defendants offer considerable evidence in support of their argument that only the City
Council can set salaries, and thus Mayor Chartier (2015 – present) and former Mayor Mills (2011
– 2015) cannot be liable. However, Plaintiff has offered sufficient summary judgment evidence
to create a genuine dispute of fact, by showing that there is no evidence that the City Council took
action to set the starting salaries of Plaintiff and the comparators, meaning that the Mayors must
have done that when they hired them, and also by showing inconsistent testimony by various city
employees on that issue. Indeed, the Texas statutes on Type A general law municipalities like
Naples also tend to support Plaintiff’s argument about the power of the mayors. Local Government
Code §22.042(a). Even though neither Mills nor Chartier hired Plaintiff initially and set his pay,
Mills did hire Davlin and both had authority over Plaintiff and Davlin and their pay during the
period in which Plaintiff alleges that he was paid less due to his race. There is also no serious
argument about whether the right to be free from racial discrimination in the terms and conditions
of employment was a clearly established constitutional right at all relevant times.
Defendants argue that there can be no pay claim against the mayors in their individual
capacities under 42 U.S.C. §1981. In Oden v. Oktibbeha County, 246 F.3d 458, 462 (5th Cir.
2001), the Court clearly held that elected officials cannot be liable for such pay claims in their
Since the official capacity claims against the mayors have already been
dismissed (Dkt. No. 18), there can be no doubt that only the individual capacity claims remain.
Accordingly, the motion to dismiss the claims under §1981 is granted.
SIGNED this 3rd day of January, 2012.
SIGNED this 7th day of July, 2017.
ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE
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