notice of electronic filing - almedia.al.com/spotnews/other/amended pelham personnel suit.pdf ·...

AlaFile E-Notice

To: WAYNE MORSE JR

[email protected]

58-CV-2012-900015.00

NOTICE OF ELECTRONIC FILING

IN THE CIRCUIT COURT OF SHELBY COUNTY, ALABAMA

The following complaint was FILED on 1/25/2012 11:19:57 AM

JIM COLLINS ET AL V. CITY OF PELHAM ET AL

58-CV-2012-900015.00

Notice Date: 1/25/2012 11:19:57 AM

MARY HARRIS

CIRCUIT COURT CLERK

SHELBY COUNTY, ALABAMA

POST OFFICE BOX 1810

COLUMBIANA, AL 35051

205-669-3760

[email protected]

IN THE CIRCUIT COURT OF SHELBY COUNTY, ALABAMA

JIM COLLINS, as an appointed member of ) the Personnel Board of the City of Pelham; ) JAMES BURKS, as an appointed member ) of the Personnel Board of the City of ) Pelham; CAROLYN MITCHELL; ) TAMI TANKERSLEY; MARY GRAY; ) JUDY WALTERS; ALLISON MILLER; ) CONNIE BUSE; RANDY WHITE; ) JUSTIN MARTIN; DALE BAILEY; ) JAMES COGGESHALL; ) DAVID MCCALL; and ) CYNTHIA MCCALL; ) ) Plaintiffs, ) ) v. ) Civil Action No.: CV12-900015 ) CITY OF PELHAM; DONALD ) MURPHY, individually; TOM SEALE, ) individually; JERRY NOLEN, individually; ) and EVA SHEPHERD, individually; ) ) Defendants. )

AMENDED COMPLAINT

Donald Murphy, Mayor of the City of Pelham, individually, Tom Seale, as

Finance Director of the City of Pelham, and City Clerk, Jerry Nolen, as Pelham

Human Resources Director, and Eva Shepherd, as the Marketing Director of the

City of Pelham, have exercised rights unauthorized under the laws of Alabama and

the City of Pelham. These parties have patronized political supporters and

benefited friends instead of complying with the Pelham Personnel Board’s merit

ELECTRONICALLY FILED1/25/2012 11:19 AMCV-2012-900015.00

CIRCUIT COURT OFSHELBY COUNTY, ALABAMA

MARY HARRIS, CLERK

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system. This lawsuit is brought by City of Pelham employees and two

representatives of the Pelham Personnel Board to enjoin the defendants from

further illegal conduct and to recover damages for the injuries they have caused by

willfully violating the Pelham Personnel Board Act.

This complaint is amended as allowed by Alabama Rule of Civil Procedure

15 adding plaintiffs and claims. The additional plaintiffs are Justin Martin, Dale

Bailey, James Goggenshall, David McCall and Cynthia McCall. The additional

claims are for deprivation of due process as guaranteed by the Alabama

Constitution of 1901, money had and received and conversion. This amended

complaint also adds a claim seeking a declaration that Mike Dickens’s appointment

as Municipal Court Administrator is invalid under Alabama law. Additional

declaratory relief is sought for particular plaintiffs because the City of Pelham and

other defendants did not comply with Alabama’s Competitive Bid Law.

PARTIES

1. Plaintiff Jim Collins is over the age of nineteen and is a member of the

Personnel Board of the City of Pelham.

2. Plaintiff James Burks is over the age of nineteen and is a member of

the Personnel Board of the City of Pelham.

3. Plaintiff Carolyn Mitchell is over the age of nineteen, and is a City of

Pelham employee who works at the Pelham Civic Complex.

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4. Plaintiff Tami Tankersley is over the age of nineteen and is a City of

Pelham employee.

5. Plaintiff Mary Gray is over the age of nineteen, is a City of Pelham

employee, and works at the Pelham Civic Complex.

6. Plaintiff Judy Walters is over the age of nineteen, is a City of Pelham


7. Plaintiff Allison Miller is over the age of nineteen and is a City of

Pelham employee.

8. Plaintiff Connie Buse is over the age of nineteen, is a City of Pelham

employee who works at the Pelham Civic Complex.

9. Plaintiff Randy White is over the age of nineteen, is a City of Pelham


10. Plaintiff Dale Bailey is over the age of nineteen, is a City of Pelham

employee, and works for the Street Department of the City of Pelham.

11. Plaintiff Justin Martin is over the age of nineteen, is a City of Pelham


12. Plaintiff James Coggeshall is over the age of nineteen, is a City of

Pelham employee, and works for the Street Department of the City of Pelham.

13. Plaintiff David McCall is over the age of nineteen, is a City of Pelham


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14. Plaintiff Cynthia McCall is over the age of nineteen, is a City of

Pelham employee, and works for the Water Department of the City of Pelham.

15. The City of Pelham is a municipal corporation and may be sued under

Alabama law.

16. Defendant Donald Murphy is the elected Mayor of the City of

Pelham, is over the age of nineteen years, and is a Shelby County resident.

17. Defendant Tom Seale is over the age of nineteen years, is the Finance

Director and City Clerk of the City of Pelham, and is a member of the City of

Columbiana City Council.

18. Defendant Jerry Nolen is over the age of nineteen years and is the

Human Resources Director for the City of Pelham.

19. Defendant Eva Shepherd is over the age of nineteen years and is the

City of Pelham Marketing Director. Shepherd is not a City of Pelham Department

Head.

STATEMENT OF FACTS

20. On April 14, 1989, Ala. Act No. 1989-189 (“Personnel Board Act”)

established the City of Pelham Personnel Board consisting of three members: one

member who is elected by the classified employees, one member who is appointed

by Murphy and the City Council, and one member appointed by the other two

members. Appointments to the Personnel Board are for four-year terms.

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21. The Act authorizes the Personnel Board to promulgate rules and

regulations to carry out the Act and to develop a comprehensive civil service

system, including, but not limited to examinations, recruitment, appointments,

suspensions, dismissals, resignations, layoffs, certifications, sick, vacation and

other types of leave, reinstatements, promotions, demotions, salary, and

classification.

22. Subject to the approval of the Personnel Board, the Director of

Personnel must establish and administer plans for the classification of positions in

the classified service. Ala. Act 1989-189, Section 5.

23. In 2001, Sections 2, 5, 6, 7, 9, 10, 11, 13, 14 and 18 of Ala. Act No.

1989-189 were amended, and the Director of Personnel was renamed Human

Resources Director.

24. Section 10 of the Amended Act, requires the Human Resources

Director (“HR Director”) to maintain the classification plan of the positions in each

Department and to ensure that the classification plan reflects the duties performed

by each employee in the classified service. The HR Director is to make periodic

studies in duties and responsibilities on the basis of finding recommended

reallocation or reclassification of positions and to direct the grading and classifying

of positions in the classified service at least every five years.

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25. After consultation or offer of consultation with the City Council and

employee representatives, the HR Director is to prepare the pay plan for the

various classes of work in the classified service and upon its completion to submit

the pay plan to Murphy and the City Council for approval. Amended Act 1989-

189, (2011), Section 11. The HR Director is required to furnish copies of the pay

plan to all groups concerned and to provide the opportunity for Department Heads,

employees and the public to present their views, individually or collectively. Id.

26. Upon final approval, the HR Director is to certify the pay plan and to

deliver it to the concerned Department Heads. “The [pay] plan shall become

effective within 30 days after adoption by the Council.” Id at Section 11. The

pay plan shall be amended when Murphy and the Council add a new position class

to the classification plan and fix the salary grade. Id. Before the adoption of an

amended pay plan, Murphy and the Council shall provide an opportunity for

Department Heads and employees to present their views. Id.

27. In January 2008, the three members of the Personnel Board were

appointed or elected.

28. Donald Murphy was elected as the Mayor of the City of Pelham. He

took office as the City of Pelham Mayor on November 3, 2008.

29. In December 2008, Murphy created or purported to create the position

of City of Pelham Marketing Director and hired Shepherd, a supporter of his

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electoral campaign, as the City of Pelham Marketing Director. Upon information

and belief, this position was created for Shepherd based her efforts on behalf of

Murphy’s election campaign. The position of Marketing Director was not

presented to or approved by the Pelham Personnel Board.

30. In June 2009, Murphy informed the Pelham Civic Complex

employees that Shepherd was employed to help them, that Shepherd was his right-

hand man, and that Shepherd would be managing the Pelham Civic Complex,

although the City Council had designated Murphy as the Department Head of the

Pelham Civic Complex, without additional compensation.

31. On April 30, 2009, Tom Seale contacted each employee working at

the Pelham Civic Complex and informed them that Murphy wanted to meet with

them, individually, the next day. The next day, May 1, 2009, when each Pelham

Complex employee arrived, a police officer was present at the front door to City

Hall, in Murphy’s office, and at each meeting with each Pelham Civic Complex

employee. Also present at each meeting were Murphy, Seale and Janis Parks, the

Assistant to the Human Resources Director, and each employee.

32. Murphy terminated the employment of Chris Holler, the General

Manager of the Pelham Civic Complex, and Mike Sweat, the marketing director

for Pelham Civic Complex, and Doug Minor, the rink director. Murphy had a

police officer stationed at the Pelham Civic Complex while Holler, Sweat, and

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Minor cleaned out their offices. The presence of the police officer at the Pelham

Civic Complex was intimidating and threatening.

33. Murphy informed each employee at the Pelham Civic Complex that

he had topped them out as well as frozen their salaries and put them on probation

for one year. In May 2009, only the salaries of the employees employed at the

Pelham Civic Complex were frozen. All other City of Pelham employees

continued to receive merit/step raises. Murphy informed the Pelham Civic

Complex employees that they would receive new job descriptions, and that some

would have different job duties.

34. In approximately July 2009, Murphy distributed new job descriptions

to Pelham Civic Complex employees. Mary Gray’s job description was

unchanged. Plaintiff Judy Walters was given two job titles: Front Office

Supervisor and Concession Supervisor. Carolyn Mitchell and Randy White’s job

titles were unchanged. Plaintiff Connie Buse’s job title changed.

35. After the July 2009 meeting at which Murphy distributed job

descriptions, Eva Shepherd decided to switch Gray’s and Walters’ respective

positions and duties. The actual swap in job duties did not occur until November

2009.

36. On September 9, 2009, the City Council requested an economic

impact study for the Pelham Racquet Club, Pelham Civic Complex, and Ballantrae

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Golf Club and requested Lee Willoughby to present findings from the HR audit at

the first October meeting.

37. On September 14, 2009, Resolution 2009-09-14-07 was presented to

the City Council, which authorized Murphy, pending acceptance of a Council

proposal, to enter into an agreement with Scott Cook & Mercer to perform a

comprehensive salary structure and job description evaluation. This resolution

conflicted with provisions of the Personnel Board Act, as amended. The study’s

cost was $85,000 and was added to the budget. Councilmember Bill Meadows

discussed the reasoning behind the resolution and the details of the proposed study.

The resolution passed unanimously.

38. On September 14, 2009, Resolution 2009-09-14-08 was presented to

the City Council, which approved an additional full-time grill/beverage attendant

for the Pelham Civic Complex Food and Beverages Services. The resolution

passed unanimously.

39. At the September 17, 2009 City Council meeting, Councilmember

Rice asked Seale about the salary of Marketing Director Eva Shepherd and

whether the 2009-2010 Budget proposed a salary increase for her. Seale responded

that the budget contained an approximate $17,000 salary increase for Shepherd.

Councilmember Nichols suggested that all salary increases be placed on hold until

the completion of the planned salary study. “It was agreed by all members of the

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Council there would be no salary increases, no salary decreases, no new

employees, no ‘rollups’ in the FY 2010 budget pending completion of the salary

study. Merit raises would be granted to eligible employees in the new budget.”

40. At the September 17, 2009 City Council meeting, Councilmember

Rice addressed the proposal that the positions of City Clerk and Finance Director

be combined and that salary for the combined positions would be $127,500.

Councilmember Rice discussed that other Department Heads supervised multiple

departments without additional salary benefits.

41. At the September 17, 2009 City Council Meeting, Councilmember

Powell requested, among other things, that the elimination of one salaried position

at the Pelham Civic Complex, the reduction in the skate school director’s salary

and benefits, and the reduction of the hockey director’s salary and benefits be

deleted from Murphy’s proposed budget.

42. Additionally, at the September 17, 2009 City Council meeting,

Councilmember Nichols discussed the $85,000 salary study under consideration by

the Council, Eva Shepherd’s efforts to turn around the Civic Complex, and the City

reserves.

43. On August 16, 2010, the City Council adopted Resolution 2010-08-

16-10 providing no salary reduction for full-time employees. Employees were to

remain at current salary in 2011 and receive merit raises.

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44. On May 16, 2011, the City Council heard the first reading of

Resolution 2011-5-16-02, which accepted and implemented the Mercer study with

additional action.

45. On June 6, 2011, at the City Council meeting, Councilmember Powell

stated the conflicts between the Mercer study and the Pelham Civil Service Law.

Councilmember Rice stated that the changes in the duties and personnel occurred

after the study was completed. Councilmember Rice requested job descriptions.

The City Council amended Resolution 2011-5-16-02 to include language about

employees who had been reassigned by the current administration to other

classifications and duties that were to be identified and reported within 30 days.

46. The July 11, 2011 Minutes of the City Council meeting, reflect a

discussion by the City Council about the suspension of the educational incentive

pay and the effect of the new pay plan on the educational incentives.

47. A July 14, 2011 Memorandum from the City Attorney states that the

Mercer study effectively repeals the educational incentive pay scale, and that

Resolution 2011-5-16-02 calls for the HR Director to develop job classifications,

an action subject to the review of the Personnel Board.

48. The July 22, 2011 Minutes of the City Council meeting reflect that,

when discussing the pay plan, Councilmember Teresa Nichols stated that “we do

not need to let state law hinder us.”

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49. On October 5, 2011, the City Council adopted Resolution 2011-10-5-

11, providing that the effective date of the Mercer plan is October 1, 2011, a

retroactive adoption violating the Personnel Board Act. The Resolution adopts the

Mercer plan employee grade assignments and the pay grade step matrix. The

October 1, 2011 comprehensive pay scale indicates frozen salaries, off-schedule

salaries, and salaries as of September 30, 2011 and October 1, 2011. The

comprehensive pay scale or pay plan purportedly adopted by the Council violates

section 2.10 of the Pelham Civil Service law Handbook, which provides that, after

final adoption by Murphy and the Council, the HR Director shall certify the plan

and deliver it to the Department Heads and that the pay plan shall be effective

within 30 days after adoption.

50. City Council President Mike Dickens voted on the pay plan on

October 5, 2011, even though his son, a City employee, would receive a substantial

annual raise when most of the employees of the City would not receive such a

raise. The pay plan developed for the Mercer plan was created by then Council

President Dickens. The pay plan included a position and pay for a Municipal

Court Administrator, although that position did not exist and had not been

proposed or presented to the Personnel Board for classification.

51. The pay plan does not contain special and specific provisions for

administering the plan or a conversion of rates of pay for the basis of payment or

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the basis of pay, indicating the number of weekly work hours in a general

application to the classified service or exception thereto as required by section 2.8

of the Pelham Civil Service Law Handbook.

52. Although section 2.9 of the Pelham Civil Service Law Handbook or

section 11 of the Ala. Act No. 1989-189, as amended, requires the HR Director to,

after consultation or offer of consultation with the Council and employee

representatives, to prepare the pay plan for the various classes of work in the

classified service and after completion of the pay plan to submit it to Murphy and

the Council for approval, HR Director Nolen did not prepare the pay plan but

rather allowed then Council President Dickens to prepare the pay plan without

consultation or offer of consultation with employee representatives.

53. Subsequent to the purported adoption of the pay plan in October,

various supervisors and Department Heads complained to Murphy about their pay

and their lack of a raise. In response to the various complaints, Murphy has

purportedly granted raises to the complainers without seeking approval from the

City Council and without amending the budget to reflect these raises or pay

increases.

54. Murphy’s purported grants of pay raises or pay increases violates

section 2.12d of the Pelham Civil Service Law Handbook, which provides that the

rate of pay of a supervisor shall be less or equal to the base rate of pay of

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subordinates directly supervised in lower, rated classes, the rate of pay maybe

advanced in grade by Murphy and the Council, and that, in no event, shall the new

rate of pay be more than one pay step above the highest rate currently received by

an employee in the lower class.

55. None of the Defendants presented any job classification changes,

modifications or creations to Personnel Board for a vote between November 2008

and October 5, 2011.

56. The Pelham Personnel Board has not made, approved, or changed the

job classifications or job duties of any of the individual Plaintiff employees or

other City of Pelham employees.

57. Subsequent to September 17, 2009, Shepherd received a raise of

approximately $17,000, although the City Council did not approve the raise.

58. In contradiction of the Amended Act, the HR Director failed to

furnish copies of the pay plan to all groups concerned and to provide the

opportunity for Department Heads, employees and the public to present their

views, individually or collectively before its purported approval by the City

Council.

59. Subsequent to October 5, 2009, various Department Heads, Shepherd,

Seale, and other ranking employees requested a pay raise from Murphy. Without

consulting the City Council or preparing budget amendments, Murphy has granted

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pay raises to certain Department Heads and Defendants, while simultaneously

denying Plaintiffs pay raises.

60. Before October 5, 2011, an employee filling the position of City

Magistrate resigned from the position in part because she supervised the two other

City Magistrates without additional pay or benefits. The City did not notify the

Personnel Board of the vacancy and did not post notices that such position was

vacant and that the City was accepting applications for the position.

61. Before October 5, 2011, Councilmember Mike Dickens added the

position of Municipal Court Administrator to the Mercer Plan without the position

being created, having been presented to, and having been approved by the Pelham

Personnel Board.

62. In November 2011, then Council President Dickens resigned as

Council President but retained his seat on the City Council.

63. On December 30, 2011, Councilmember Dickens resigned from the

City Council to accept the position of Municipal Court Administrator that was

purportedly created by the Council’s adoption of the Mercer Study.

64. In addition to the position of Municipal Court Administrator not being

presented to and approved by the Personnel Board, Nolen, as HR Director, did not

announce or provide notice of the position vacancy, i.e. time, place, requirements,

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and weights of various section tests and periods of application, as required by Rule

3 of the Pelham Civil Service Law Handbook.

65. The purported appointment of Mike Dickens to the position of

Municipal Court Administrator violated Rule 4.8 of the Pelham Civil Service Law

Handbook, which provides that the Murphy must inform the HR Director of any

vacancy for Department Head and that the HR Director must then certify a list of

eligibles from the appropriate list, in that Murphy did not advise Nolen of the

vacancy, and Nolen did not certify a list of eligibles to Murphy.


Municipal Court Administrator violates § 36-25-13(c), Ala. Code (1975), which

provides:

“No public official, director, assistant director, department or division chief, purchasing or procurement agent having the authority to make purchases, or any person who participates in the negotiation or approval of contracts, grants, or awards or any person who negotiates or approves contracts, grants, or awards shall enter into, solicit, or negotiate a contract, grant, or award with the governmental agency of which the person was a member or employee for a period of two years after he or she leaves the membership or employment of such governmental agency.”

A public official includes a “person [who] has taken office, by the vote of the

people at state, county or municipal level government or their instrumentalities

….” § 36-25-1(24).

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67. The Alabama Ethics Commission has interpreted § 36-25-13(c) as

prohibiting a public official, once his term of office is over or he retires, from

contracting employment with his former public employer. Advisory Opinion 98-

35.

68. Further, the purported appointment of Mike Dickens to the position of

Municipal Court Administrator violates Rule 18(B), Ala. R. Jud. Admin., which

provides the mechanism for selection of Municipal Magistrates, which duties the

Municipal Court Administrator is to perform.

69. Further, Council member Teresa Nichols voted to elect herself as

President of the City Council of the City of Pelham. The election of Teresa

Nichols to position of President of the City Council increased her pay several

thousand dollars.

70. Section 36-25-9(c), Ala. Code (1975), prohibits any member of a

municipal agency, board, or commission from voting or participating in any matter

in which such member or family member of the member has any financial gain or

interest.

71. Further, when an employee of the City working for the Street

Department was diagnosed with cancer and/or a form of cancer, employees of the

City donated sick time so that the employee would be paid while he received

treatment. Employees donated approximately one year of sick time to a seriously

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ill Street Department employee. Approximately three months after the donation of

sick time, the Street Department employee succumbed to his illness.

72. Rather than direct the unused sick time into the Employee Sick Leave

Bank, Murphy directed that the donated sick leave time be converted to the City

and/or the General Fund and directed that the unused donated sick leave was not

available for any employee who might need additional time for treatment of an

illness or treatment of an ill family member.

73. Within the last two years, Shepherd ordered dining room chairs

without complying with the Competitive Bid Law, §§ 41-16-20 et seq., Ala. Code

(1975).

74. In order to circumvent the Competitive Bid Law, Shepherd and/or

Murphy directed that the cost of the chairs be broken down into multiple purchase

orders, and the City paid for the chairs in multiple purchase orders.

75. Shepherd submitted a purchase order in the amount of $10,140 to

purchase catering and/or kitchen equipment from individuals who are employed by

the City.

76. When it was discovered that the payments were to employees,

Shepherd was advised that it was a prohibited transaction. Thereafter, Shepherd

back-dated the purchase order to a date before the individuals became City

employees, but payment was made after the initial purchase order submission.

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SPECIFIC FACTS - PLAINTIFF CAROLYN MITCHELL

77. Beginning May 2009, Carolyn Mitchell supervised the banquet hall at

the Pelham Civic Complex. In July 2009, the duty of supervising the banquet hall

was taken away from Mitchell by Shepherd.

78. In August 2009, the City hired in-house caterers and required

Mitchell to work with the caterers although the caterers had received no training in

the City’s procedures or the requirements for municipalities under Alabama law.

79. In about September 2009, Mitchell was working 40 to 60 hours

weekly to fulfill her job duties, but she was told that she could not put in for comp

time, nor was she paid for the overtime hours she had worked. She worked

overtime approximately 20 hours a week for three months without compensation.

Shepherd told her not to turn in her overtime hours and that she was not to receive

comp time for the overtime that she worked.

80. In September 2009, Mitchell told Shepherd that she needed help with

dealing with the banquets. Shepherd said that she had found a woman that she

wanted to help to do the work. Shepherd said that she did not know how she

would work that out, but Mitchell could make that decision. Shepherd told

Mitchell that she had recently met the woman, whose name is Barbara Pepper.

81. Subsequently, Mitchell learned that Shepherd and Pepper have been

friends for over 11 years and that Pepper had been sitting with Shepherd’s mother

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until she put her mother into a nursing home, and that, after Shepherd put her

mother in a nursing home, Pepper needed a job, so Shepherd hired Pepper as a

part-time seasonal employee, who pursuant to Rule 4.9d, Pelham Civil Service law

Handbook, should have been employed no more than four months and should have

worked hours less than a full-time employee. Shepherd permitted Pepper to work

40 hours and overtime as a part-time seasonal employee.

82. Between October and December 2009, Shepherd directed the

maintenance supervisor to change the furniture in Mitchell’s office on three

occasions, but the furniture arrangement ended the same way it started. Shepherd

took this action to harass, to annoy or to intimidate Mitchell.

83. In December 2009, Mitchell developed respiratory problems, and she

was off work for one week. Shepherd put Pepper into the office occupied and job

held by Mitchell. At the end of December 2009, Mitchell was diagnosed with

common variable immune deficiency as a result of the number of hours she had

worked.

84. Mitchell requested intermittent leave under federal law, the Family

Medical Leave Act (FMLA). In March 2010, Mitchell filed for FMLA leave to

work part-time. She worked part-time, meaning four hours a day, in January and

February 2010. Shepherd would not allow Mitchell to work more at the time.

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85. In February 2010, Shepherd changed Mitchell’s duties and work

schedule. In March 2010, Mitchell returned to work full-time. Shepherd asked

Mitchell to work for another employee, “M.G.,” who was out for two weeks.

During the two weeks that Mitchell worked for “M.G.,” she worked from 11:00

a.m. to 7:00 p.m.

86. Approximately two days before Mitchell finished filling in for

“M.G.,” Shepherd told Mitchell that Mitchell’s job performance was inadequate

and that Shepherd was giving Mitchell a new job. Mitchell asked Shepherd if she

had spoken to her doctors. Shepherd said no, but she had decided Mitchell could

not do her job.

87. Shepherd assigned Mitchell’s job and job duties to Pepper, without

approval from the City Council or the Personnel Board. Pepper was still a part-

time seasonal employee at the time that Shepherd gave Mitchell’s job to Pepper.

88. After Shepherd decided that Mitchell could not perform her job,

Shepherd told Mitchell that she was a marketing assistant and support staff.

Shepherd told employees at the Pelham Civic Complex that Mitchell was not well,

and that Shepherd was helping Mitchell by having Pepper do her job.

89. Shepherd instructed Mitchell not to talk to clients, although Shepherd

told clients that Mitchell is not well.

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90. Shepherd stated she would find a job or place for Mitchell at the

Pelham Civic Complex, and that Mitchell could work with her and Pepper.

Shepherd took Mitchell’s office and computer. Mitchell had to roll her work files

around the building in a chair and find a work computer.

91. Periodically, Mitchell would request that Shepherd return her to her

assigned position. Shepherd refused Mitchell’s requests and kept Pepper in that

position.

92. On April 21, 2010, all Pelham Civic Complex employees received

new job descriptions and titles except Mitchell. In July 2010, Mitchell asked

Shepherd for her job description and title. Shepherd told Mitchell that she was a

Banquet Events Coordinator.

93. At the end of August to mid-September 2010, Mitchell went to

Shepherd about her new position and pay scale. Shepherd informed Mitchell that

Murphy did not want to present a new position for Mitchell to the Personnel Board

and that he told Shepherd to take care of her. At that time, Pepper was still

performing Mitchell’s job duties and was still a part-time seasonal employee.

94. In approximately November 2010, Pepper was made a full-time

employee and was officially assigned Mitchell’s job.

95. Near the beginning of October 2011, Shepherd changed Mitchell’s

work schedule to 11:00 a.m. to 7:00 p.m., Monday through Thursday, and 8:00

23

a.m. to 5:00 p.m. on Fridays. Previously, for three months, Mitchell had worked

12:00 p.m. to 9:00 p.m., Wednesday through Sunday, and did not receive any

breaks. She also worked 1:00 p.m.. to 9:00 p.m., 1:00 p.m. to 9:00 p.m., and 12:30

p.m. to 9:00 p.m. As a result of defendants’ actions, Mitchell has not had a pay

raise in three years and has lost step pay raises as a result of the numerous changes

in the pay plan developed for Pelham Civic Complex employees from November

2008 through October 2011.




views, individually or collectively, before its purported approval by the City

Council.

SPECIFIC FACTS - PLAINTIFF TAMI TANKERSLEY

97. Plaintiff Tami Tankersley has worked in the Pelham Water

Department since 2006.

98. In 2009, Tankersley was told either to accept a demotion or lose her

job. She accepted a demotion to work in the garage. Tankersley was told that she

was put to work in the garage to be a spy, and that she would be on probation for

one year. As a result of her discipline, she did not receive her step pay raise.

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99. While working at the garage, Murphy hired a second manager for the

garage without firing the first manager. The second manager was a supporter and

friend of Murphy.

100. While at the garage, Eddie Jowers, the Director of Public Works,

asked Tankersley to return to the Pelham Water Department to fill in for

employees who were not at work.

101. Jowers told Tankersley that she would be on a higher pay scale and

was given the impression that if she did not return then she would not have a job.

She returned to the Pelham Water Department at a higher pay rate than the pay

available at the garage.

102. After her transfer to the Pelham Water Department, Tankersley did

not receive her merit/step pay raise in October 2011. She was told that she did not

receive her raise because she had been promoted to a higher pay scale when she

returned to the Pelham Water Department. However, the personnel paperwork

prepared for Tankersley’s return to the Pelham Water Department did not show

that she was promoted. Rather, the paperwork indicated that she had been

reinstated to her previous position. When Tankersley asked why she was not

receiving a merit/step raise, her supervisor told her it was because she was now at a

higher rate of pay, even though she did not receive a promotion or a pay raise.

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103. When Tankersley confronted the Department Head about not

receiving her merit/step pay raise, Tankersley was told that it was the best possible

scenario without City Council approval. Tankersley was scheduled to receive a

pay raise on October 28, 2011. The employee that Tankersley replaced in the

garage returned to the garage at a higher pay grade.

104. Tankersley is classified as a Clerk rather than a Water Clerk Grade 8,

the classification of the other Pelham Water Department employees. Under the

new pay plan, Grade 8 water clerk tops out at $41,000, although two water clerks,

already at Grade 8, are paid approximately $44,000 per year. The new pay plan

matrix shows Tankersley is to receive a gross $90 bump per paycheck, but she

actually receives only a $14 bump. Tankersley has not seen or been told about the

pay plan. Pelham Water Department employees were told that all but two

employees, the ones paid $44,000, were receiving a pay raise. The Pelham Water

Department Head received a pay raise, but said that she could not answer questions

regarding the pay raise because she was uninformed and did not know if

Tankersley would receive a merit/step raise.


furnish copies of the pay plan and to provide the opportunity for Department

Heads, employees and the public to present their views, individually or

collectively, before its purported City Council approval.

26

106. Tankersley performs the same duties as the water clerks, but she is in

a different class. One step remains in Tankersley’s class, but new hires have 18

steps according to the new plan.

SPECIFIC FACTS - PLAINTIFF MARY GRAY

107. Plaintiff Mary Gray works at the Pelham Civic Complex. She began

as a typist and moved up to clerk. After she maxed out as a clerk, Gray changed

grades to Manager-on-Duty (“MOD”). She had several more steps available for

pay grades, according to Danny Tate, her supervisor at the skate school, when

Murphy maxed out everyone at the complex.

108. In July 2009, there was a meeting with Shepherd and the Pelham

Civic Complex employees. Gray was given a job description, which had not

changed

109. Gray told Shepherd that she needed help with her work.

110. Defendants ordered Max Ice, a computer program to schedule events

on the skating rinks. Training for the Max Ice program was held in September and

October 2009, but limited training was available for the skate school employees.

111. In October 2009, after training, Shepherd informed Gray that she was

swapping Gray and Judy Walters, the bookkeeper who did payables. Gray told

Shepherd that bookkeeping was not her strong suit and was not knowledgeable in

27

bookkeeping. Shepherd told Gray and Walters that they would swap jobs on

November 16, 2011, after two weeks of training.

112. Shepherd had Gray working 1:00 to 9:00 p.m. to “get rid of the part-

time employees.” After seven or eight months, Shepherd told Gray that she had a

bad attitude because she would not meet and allow someone in the skate school

office to take payments when the skate school was closed for lunch.

113. Subsequently, Shepherd changed Gray’s hours to 11:00 a.m. to 7:00

p.m. Shepherd gave Gray a job description that showed her position as the Front

Office Accounts Clerk.

114. Shepherd gave Gray the description, told her to read it, and to change

it to fit her job. Shepherd told Gray that she was a backup for Plaintiff Connie

Buse in all duties, including payroll.

115. In May 2011, Shepherd told Gray to do the facility’s Ice scheduling

and private bookings. Gray told Shepherd that she could not do everything.

Shepherd asked Gray what she wanted to do, and Gray said she did not want to do

payables, so Shepherd told Mitchell to do the payables.

116. Gray did not receive job reviews from 2008 until October 2011.

Shepherd told her that no employee received scores in the ninety percentile

because Shepherd does not believe that anyone should receive such scores. Males

28

who scored in the sixty percentile on their performance evaluations received a

raise.

117. Contrary to the Amended Act, the HR Director failed to furnish copies

of the pay plan to all groups concerned and to provide the opportunity for

Department Heads, employees and the public to present their views, individually or


118. Gray did not receive a bump in pay as a result of the change in the pay

matrix. She has the same pay as always, although her title and job duties are

different.

SPECIFIC FACTS - PLAINTIFF JUDY WALTERS

119. In May 2009, Judy Walters was a bookkeeper in the front office of the

Pelham Civic Complex. She earned approximately $50,515.76. She was at Level

II and had two pay steps available.

120. On May 7, 2009, after Walters had gone home for the day, Seale

called her and told her to be in Murphy’s office at 10:45 a.m. the next morning,

and asked her if that would be a problem.

121. The next day when Walters arrived at work at 8:00 a.m., Jerry Nolen,

the HR Director, and a police officer came in the front door of the building.

Several days later, Murphy came to the Civic Complex and said he had to do what

he had to do because “nothing was getting done.”

29

122. Approximately six weeks later, new job titles and descriptions were

given out to Pelham Civic Complex employees. Walters was given two job titles,

Front Office Supervisor and Concessions Supervisor. No one had been in charge

of concessions, and a major car show was to be held at the Pelham Civic Complex.

No one was available to manage concessions. Consequently, Walters was required

to clean and to prepare the concessions without assistance.

123. In September or October 2009, Shepherd said that she had decided to

switch Gray and Walters’ jobs.

124. After Walters asked Nolen, the HR Director, why she did not have a

job evaluation for three years, she received a job evaluation. Her September 29,

2011 evaluation showed her position as Skate Administrator, G-5 to S-5. The

evaluation is signed by Shepherd as her Supervisor, although Shepherd is the

Marketing Director for the City of Pelham and not the Director or Marketing

Director of the Pelham Civic Complex. Previously, Walters had been classified as

Front Office/Area Events Coordinator, a G-5 position, but she is no longer

performing those duties.

125. As a result of the pay freeze and the reclassification in May 2009,

Walters lost two merit/step raises before October 1, 2011. As a result of

Defendants’ actions, Walters has, in effect, been demoted because she has lost the

two pay steps she had the capacity to earn, she is not doing the same job, she is not

30

earning the same funds, she is on a lower pay scale, and she no longer has the

ability to receive merit/step raises under the new pay plan.




collectively before its purported City Council approval.

SPECIFIC FACTS - PLAINTIFF ALLISON MILLER

127. Allison Miller is a firefighter employed by the City of Pelham. She

was scheduled to receive an annual merit/step raise on October 21, 2011.





129. Further, the pay plan presented to Miller during the week of

November 21, 2011 was one page with numbers, which is not the pay plan

presented to and purportedly approved by the City Council.

130. As a result of the actions of Defendants, Miller did not receive her

annual merit/step raise and is uncertain whether she will receive a merit/step raise

in the next fiscal year. The failure to receive her annual merit/step raise affects her

future raises, her retirement pay-in and her retirement benefits.

31

SPECIFIC FACTS - PLAINTIFF CONNIE BUSE

131. Before May 2009, Connie Buse was employed as the front office

manager at the Pelham Civic Complex.

132. In June 2009, Buse was given a new job description, Arena Events

Coordinator.

133. In approximately July 2009, Buse was called into Shepherd’s office.

Murphy asked Buse if she was a team player. She replied, “do I have a choice?”

Murphy replied, “Yes, I’ve got a stack of resumes of people who want to work for

me.” Therefore, Murphy periodically threatened Buse’s job.

134. In April 2010, Shepherd changed Buse’s job title to Front Office

Coordinator.




views, individually or collectively, before its purported City Council approval.

136. As a result of Defendants’ actions, Buse has not received a merit/step

raise since 2009. Shepherd showed the new pay plan to Buse and stated that “the

pay plan won’t affect you; you are off the charts; you will not be getting any pay

raises.”

32

SPECIFIC FACTS - PLAINTIFF RANDY WHITE

137. Randy White is employed by the City of Pelham at the Pelham Civic

Complex.

138. In May 2009, Seale called White after he had left work, and Seale

told White that he had to meet with Murphy the next day.

139. The next day, White attended a meeting with Murphy. Also present at

the meeting were Seale, Janis Parks, and an armed police officer. Murphy told

White that he needed to be a team player, that his salary was frozen, and that he

was on probation for one year.

140. After the meeting, White’s work hours were changed, and he was

given a new job description and a new title, Facility 1.

141. Subsequently, Shepherd told White that she could not get his new job

title passed. Thereafter, during the Mercer study, when the job analysis form

requested his job title, White asked Shepherd what title he was to identify on the

form. Shepherd instructed White to identify both job titles.




views, individually or collectively, before its purported City Council approval.

33

143. As a result of Defendants’ actions in May 2009, White received a

merit/step pay raise in October 2011, the anniversary of his hiring, when he

received a 22 cent pay bump, and was told that he could not ask for a raise because

he had received a 22 cent bump in pay as a result of the new pay plan.

SPECIFIC FACTS - PLAINTIFF DALE BAILEY

144. Dale Bailey is employed by the City of Pelham and works in the

Street Department.

145. In July 2011 because of the high temperature, Bailey and other

members of a Street Department truck crew stopped at a convenience store to

purchase water or soft drinks and, as previously instructed by their supervisor,

Martin and the other employees went to a cul-de-sac out of the public’s view to

take a break and to cool off with their cold water or soft drinks.

146. On July 26, 2011, Bailey filed a grievance against Mark Keith, a

Public Works supervisor, relating to an incident on July 22, 2011. On July 22,

2011, Bailey began work at 4:30 a.m. to fog the golf course to kill mosquitoes

before golfers got on the course. Bailey, his supervisor, and another employee

finished up at about 11:45 a.m., and they returned to the shop. Bailey and the other

employee began their lunch at noon. Mark Keith came into the break room and

handed out pay stubs.

34

147. Bailey went to the warehouse where Mark Keith and another

employee were talking about the employee going out on a truck and picking up

brush. The employee told Mark Keith that they were about to be off work for the

day, but he would help. Mark Keith asked Bailey, “Where do you think you are

going?” Bailey informed Mark Keith that he was on his lunch hour and that he

was going home after his lunch hour.

148. Mark Keith became irate and began yelling at Bailey that he “runs this

show.” When Bailey tried to explain that they had not had lunch, Mark Keith

began yelling at him, “you don’t tell me what to do, don’t you ever tell me what to

do” and folded his arms and walked up to Bailey, trying to intimidate Bailey.

Mark Keith’s attitude and manner were so hostile that the other employee got

between Mark Keith and Bailey.

149. When Bailey began walking to his automobile, Mark Keith began

yelling at Bailey and got in his face. Mark Keith physically bumped Bailey, and

the other employee again got in between Bailey and Mark Keith. Mark Keith told

Bailey not to come to work on Monday. Bailey replied that he would be at work.

Mark Keith again told Bailey not to come to work on Monday.

150. Because a crowd had begun to gather, Mark Keith and Bailey went

into Keith’s office. Keith again attempted to intimidate Bailey as Bailey tried to

35

explain about the hours that they had worked without a lunch break. Mark Keith

told Bailey to get out of his office if he liked his job.

151. Bailey left the area and went to the Human Resources Department to

report that he was harassed and intimidated by Mark Keith.

152. The following Monday, Bailey experienced health issues and called in

sick.

153. On August 5, 2011, the Public Works Director cut the lunch hour of

the employees of the Street Department from the usual one hour to thirty minutes.

154. On August 8, 2011, the Public Works Director sent a Memo to Bailey

and to Mark Keith, acknowledging that he received Bailey’s grievance on August

3, 2011 and stating he was investigating the matter, that he had received

inconsistent statements from individuals and that he intended to further investigate

the matter.

155. The August 8, 2011, Memo did not comply with Rule 8.6, Pelham

Civil Service Law Handbook, which requires the immediate supervisor to respond

in writing within three days to the complaint and to furnish a copy of such answer

to the employee and the HR Director.

156. Further, the August 8, 2011 Memo does not comply with Rule 8.6 in

that the Department Head is required to respond in writing within five days of

36

receipt of the grievance and the supervisor’s answer to all parties concerned and to

copy the response to the HR Director.

157. Moreover, since the grievance was unresolved, it was Nolen’s

obligation as HR Director to submit the grievance to the Grievance Committee and

to receive a decision from that Committee within 30 days of its receipt of the

grievance.

158. Thereafter, Bailey left the state for his son to receive medical care for

his minor child’s rare brain tumor.

159. Subsequently, in August 2011, employees of the Street Department

were called in individually by the Department Head and Murphy and questioned

about why they went to the cul-de-sac and how long they were there. The

Department Head and Murphy threatened to fire Bailey and the other employees

until their supervisor confirmed that he had told them that they could take breaks

for the heat as long as they were not sitting along the street in the view of the

public. The employees were suspended for two days without pay.

160. Bailey returned to work from his FMLA leave in September 2011.

161. In October 2011, Bailey was moved off the crew that he worked with

previously.

162. On October 10, 2011, the Public Works Director informed Bailey that

he was to receive three days off work without pay for taking a break at the cul-de-

37

sac in July 2011. However, Bailey did not receive any write-up or disciplinary

notice regarding his three-day suspension without pay.

163. Additionally, the Public Works Director asked Bailey about

dropping his grievance. Bailey said he would drop the grievance if he did not

receive three days off.

164. On October 12, 2011, the Public Works Director gave Bailey a written

warning for inappropriate conduct and insubordination relating to the July 22, 2011

which stated that he would receive one day off work without pay. The written

warning stated that Bailey had received an oral warning on January 16, 2009 from

Mark Keith; however, Bailey denies receiving the warning and Bailey’s personnel

record does not include any evidence of a verbal warning from Mark Keith on

January 16, 2009. The written warning stated that Bailey was dropping his

grievance.

165. Bailey told the Public Works Director that he did not agree to drop

his grievance and to be disciplined with time off. Bailey told the Public Works

Director that he had not received a verbal warning in 2009 and that he would not

drop his grievance. Bailey declined to sign the written warning.

166. Subsequently, Bailey saw Nolen while off work, and Nolen told him

that nothing was going to happen to his grievance and that it was too late for

Bailey to do anything or for the grievance to go to the Personnel Board.

38

167. Since October 2011, Murphy, Seale, and the City of Pelham, by and

through the Public Works Director and Mark Keith, have tracked or followed

Bailey and other employees in the Street Department through their Nextel cellular

phones and have shown up at the park with five or six police officers where Bailey

and the other employees were using the restrooms.

168. Murphy and Seale have accused Bailey of stealing time by taking

breaks, cursed at him and threatened his job.

169. Beginning on January 4, 2012, Murphy, Seale and the City, by and

through the Public Works Director and Mark Keith, have treated Bailey and other

employees of the Street Department differently than other employees of the City

by requiring them to complete forms that require Bailey and the other employees to

account for their time hour by hour of each working day.

170. Further, Bailey and other Street Department employees are not

properly paid overtime or credited compensatory time. Although Bailey has

worked overtime in a regular week, he is not paid overtime or credited

compensatory overtime if he takes any time off during the second week of a two-

week pay period. Additionally, Bailey and other Street Department employees do

not receive time and a half for overtime or one and one-half hours of compensatory

time for every hour that they work overtime.

39

SPECIFIC FACTS - PLAINTIFF JUSTIN MARTIN

171. Justin Martin is employed by the City of Pelham and works in the

Street Department.

172. In July 2011 because of the high temperature, Martin, Bailey and

other members of a Street Department truck stopped at a convenience store to

purchase water or soft drinks and, as previously instructed by their supervisor,

Martin and the other employees went to a cul-de-sac out of the public’s view to

take a break and to cool off with their cold water or soft drinks.

173. Subsequently, in August 2011, employees of the Street Department

were called in individually by the Department Head and Murphy and questioned

about why they went to the cul-de-sac and how long they were there. The

Department Head and Murphy threatened to fire Martin and the other employees

until their supervisor confirmed that he had told them that they could take breaks

from the heat as long as they were not sitting along the street in the view of the

public. Martin and the other employees were suspended for two days without pay.

174. Since Bailey filed a grievance against Mark Keith, a Public Works

supervisor, the Public Works Director, Murphy and Keith have been treating

Martin and other Street Department employees differently than most other

employees of the City. Specifically, Murphy, Seale and the City, by and through

the Public Works Director and Mark Keith, have been tracking or following Martin

40

and the other Street Department employees through their Nextel cellular phones

and have shown up at the park with five or six police officers where Martin and the

other employees were using the restrooms.

175. Since October 2011, Murphy, Seale and the City, by and through the

Public Works Director and Mark Keith, have tracked or followed Martin and other

employees in the Street Department through their Nextel cellular phones.


through the Public Works Director and Mark Keith, have treated Martin and other

employees of the Street Department differently than other employees of the City

by requiring them to complete forms that require Martin and the other employees

to account for their time hour by hour of each working day.

177. On January 6, 2012, Murphy and Seale showed up at the park with

five or six police officers where Martin and the other employees were using the

restrooms.

178. Murphy and Seale have accused Martin of stealing time by taking


179. Further, Martin and other Street Department employees are not

properly paid overtime or credited compensatory time. Although Martin has



41

week pay period. Additionally, Martin and other Street Department employees do



180. Martin was entitled to a merit raise on October 15, 2011, however, as

a result of the City’s purported adoption of the Mercer study and the pay plan

developed by then Councilmember Dickens, Martin has not received his merit/step

raise, which is adversely affecting his retirement benefits.

SPECIFIC FACTS - PLAINTIFF JAMES COGGESHALL

181. James Coggeshall is employed by the City of Pelham in its Street

Department.

182. Since Bailey filed a grievance against Mark Keith, a Public Works

supervisor, the Public Works Director, Murphy and Keith have been treating

Coggeshall and other Street Department employees differently than most other

employees of the City. Specifically, Murphy, Seale and the City, by and through

the Public Works Director and Mark Keith, have been tracking or following

Coggeshall and the other Street Department employees through their Nextel

cellular phones and have shown up at the park with five or six police officers

where Coggeshall and the other employees were using the restrooms.

42

183. Since October 2011, Murphy, Seale, and the City by and through the

Public Works Director and Mark Keith, have tracked or followed Coggeshall and

other employees in the Street Department through their Nextel cellular phones.


through the Public Works Director and Mark Keith, have treated Coggeshall and

other employees of the Street Department differently than other employees of the

City by requiring them to complete forms that require Coggeshall and the other

employees to account for their time hour by hour of each working day.


five or six police officers where Street Department employees were using the

restrooms.

186. Murphy and Seale have accused Coggeshall of stealing time by taking


187. Further, Coggeshall and other Street Department employees are not

properly paid overtime or credited compensatory time. Although Coggeshall has



week pay period. Additionally, Coggeshall and other Street Department

employees do not receive time and a half for overtime or one and one-half hours of

compensatory time for every hour that they work overtime.

43

SPECIFIC FACTS - PLAINTIFF DAVID MCCALL

188. David McCall is employed by the City of Pelham in the Street

Department.

189. McCall has been told that he does not have a classification in the

classified service of the City and may be a truck driver one day and on the brush

cleanup crew the next day.

190. McCall’s supervisor had told McCall and other employees in the

Street Department that when they caught up on their work they were to disappear

and not to drive around the City in a City truck.

191. On October 7, 2011, McCall and the other employees on his crew had

finished their work, so they went home. Murphy brought in McCall and the other

employees individually. Murphy called McCall a thief and told him that he was

stealing time. When McCall explained why he left, Murphy called him a liar.

192. Murphy and the City brought in McCall’s supervisor, and the

supervisor admitted that he told McCall and the other employees to go home.

193. Subsequently, Murphy met with the Street Department and told the

Street Department employees that McCall and the other three employees are “four

fired asses.”

194. After the meeting with the Street Department employees, Murphy

required McCall and the three other employees to go to another meeting. At the

44

second meeting, Murphy told McCall and the others that they were not fired

because they had done what they were instructed to do and that they would not be

disciplined.

195. Subsequently, beginning on January 4, 2012, Murphy, Seale and the

City, by and through the Public Works Director and Mark Keith, have treated

McCall and other employees of the Street Department differently than other

employees of the City by requiring them to complete forms that require McCall

and the other employees to account for their time hour by hour of each working

day.


five or six police officers where Street Department employees were using the

restrooms.

197. Murphy and Seale have accused McCall of stealing time by taking


198. On January 10, 2012, McCall and another Street Department

employee were required to pick up brush in the pouring rain while all other Street

Department employees were inside the shop waiting for the rain to stop.

199. Further, McCall and other Street Department employees are not

properly paid overtime or credited compensatory time. Although McCall has


45


week pay period. Additionally, McCall and other Street Department employees do



200. Prior to the City’s purported adoption of the Mercer study, McCall

had steps left within his grade. After the adoption of the Mercer Study, McCall has

fewer remaining steps available, but is not “topped out” as are other employees of

the City whose employment began before McCall’s employment.

SPECIFIC FACTS - PLAINTIFF CYNTHIA MCCALL

201. Cynthia McCall is employed by the City of Pelham in the Water

Department.

202. During 2011, one of the Magistrates for the City of Pelham resigned

because she was supervising the other Magistrates without additional

compensation or benefits.

203. Cynthia McCall inquired about the open Magistrate position. She was

told that she was earning more than the pay for a Magistrate I position.

204. In October 2011, then Council President Dickens included the

position of Municipal Court Administrator in the pay plan and included a grade

and salary for the position.

46

205. The post of Municipal Court Administrator was not announced, and

Nolen did not announce or provide notice of the position vacancy, i.e. time, place,

requirements, and weights of various section tests and periods of application, as

required by Rule 3 of the Pelham Civil Service Law Handbook.

206. Cynthia McCall would have applied for the position of Municipal

Court Administrator had the position been properly announced and notice of the

vacancy been published as required by the Pelham Civil Service Law Handbook.


Municipal Court Administrator violates Rule 4.8 of the Pelham Civil Service Law

Handbook, which provides that Murphy must inform the HR Director of any

vacancy for Department Head and that the HR Director must then certify a list of

eligibles from the appropriate list, in that Murphy did not advise Nolen of the

vacancy, and Nolen did not certify a list of eligibles to Murphy.

COUNT I - DECLARATORY JUDGMENT PLAINTIFFS JIM COLLINS AND JAMES BURKS

208. Plaintiffs Jim Collins and James Burks adopt paragraphs 1 through

178 as if fully set out herein.

209. As a result of the change and reassignment of Pelham Civic Complex

employees’ job classifications and job duties without Personnel Board

authorization, Defendants purported to freeze the salaries of Pelham Civic

47

Complex employees and to deny them the merit/step or cost of living raises

received by other City of Pelham employees.

210. Defendants have not complied with the Amended Act regarding

appointment and election of the Personnel Board members. Defendants have not

notified City of Pelham employees that they must nominate or elect a member of

the Personnel Board by approximately January 21, 2012.

211. A justiciable controversy exists between Plaintiffs Collins and Burks,

as members of the Personnel Board, and the City of Pelham and other Defendants.

Plaintiffs Collins and Burks seek a declaratory judgment determining the parties’

rights, duties and liabilities and the validity of Defendants’ reclassification of the

other Plaintiffs’ job duties and salary freezes without the approval of the Personnel

Board.

WHEREFORE, Defendants have usurped the City of Pelham Personnel

Board’s powers and taken actions to do the following: to freeze the salaries of

Mitchell, Gray, Walters, Buse and White; to deny merit/step or cost-of-living

raises to Mitchell, Gray, Walters, Buse and White when other City of Pelham

employees have received merit/step raises; have purported to change the job

classifications and duties of Mitchell, Gray, Walters, Buse and White without prior

Personnel Board approval; have purported to change the job duties of Mitchell,

Gray, Walters, Buse and White without changing their classifications with the

48

Personnel Board; have purported to change the pay plan of City of Pelham

employees based upon changed job classifications without first presenting them to

the Personnel Board and without receiving approval of said job classifications from

the Personnel Board; employed Tom Seale as City Clerk or Finance Director or

City Clerk/Finance Director when he has been elected as a member of the City

Council of the City of Columbiana in violation of Article XVII, § 280, Alabama

Constitution of 1901. Therefore, Plaintiffs Collins and Burks request this

Honorable Court to:

a) enter a declaratory judgment holding that Defendants lack the authority to reclassify or to change the job classifications of City of Pelham employees, including Plaintiffs, without Pelham Personnel Board approval; holding that Defendants lack the authority to change the pay of City of Pelham employees, including Plaintiffs; holding that Defendants have purported to change the job classifications or to abolish the City of Pelham employees’ job classifications in violation in the Amended Act; holding that based upon an unauthorized change in the job classifications or job duties of City of Pelham employees, including Plaintiffs, Defendants’ passage of a new pay plan is void and unenforceable; that all actions taken by Seale as City Clerk or Finance Director or City Clerk/Finance Director violate Article XVII, § 280, Alabama Constitution of 1901 and are void; that Shepherd’s submission of multiple purchase orders for dining room chairs was an attempt to circumvent the Competitive Bid Law; that Shepherd’s submission of multiple purchase orders for dining room chairs violated the Competitive Bid Law; and that Shepherd’s back-dated purchase order for the purchase of catering and/or kitchen equipment from employees of the City violated the Ethics Law and such purchase is invalid;

49

b) enter a writ of mandamus requiring Defendants to cease and desist using the new classifications of City of Pelham employees, particularly Plaintiffs, and to stop paying them under the new pay plan when such pay is dependent on a change in the classification of City of Pelham employees;

c) enter a writ of mandamus requiring Defendants to place City of Pelham employees, particularly Plaintiffs, in the jobs with the duties that are assigned to such jobs as are consistent with the employees’ proper job classifications;

d) enter a preliminary and permanent injunction prohibiting Defendants from changing the City of Pelham employees, particularly Plaintiffs’ job classifications or job duties from those properly assigned to them until such classifications or duties are changed or modified in accordance with the Personnel Board Act;

e) enter a preliminary and permanent injunction requiring Defendants to comply with the requirements of the Personnel Board Act regarding the City of Pelham employees, particularly the Plaintiffs’ classifications and their properly assigned job duties;

f) require Defendants to pay the costs of this action and Plaintiffs’ attorneys’ fees; and

g) grant Plaintiffs such other relief as the Court may deem appropriate.

COUNT II - DECLARATORY JUDGMENT

PLAINTIFFS MITCHELL, GRAY, WALTERS, TANKERSLEY, BUSE AND WHITE

212. Plaintiffs Mitchell, Gray, Walters, Tankersley, Buse and White adopt

paragraphs 1 through 211 as if fully set out herein.

50

213. The Pelham Personnel Board is authorized to establish or to approve

the classification of City of Pelham job positions, as well as the deletion or revision

of existing classes within the positions after presentation to the Personnel Board by

the HR Director.

214. HR Director Nolen has not complied with Personnel Board Act’s

requirements by maintaining a classification plan reflecting the duties performed

by each employee in the classified service, by recommending to the Personnel

Board the establishment of new position classes and the deletion or revision of

existing classes, or by making periodic studies of positions to determine changes in

duties and responsibilities.

215. Nolen has permitted Murphy and Shepherd to usurp his duties and

obligations under the Personnel Board Act by purporting to change Plaintiffs’ job

classifications or job duties without Personnel Board approval, and to change

Plaintiffs’ pay plans.

216. A justiciable controversy exists between Plaintiffs and Defendants.

Plaintiffs seek a declaratory judgment determining the parties’ rights, duties and

liabilities and the validity of Defendants’ reclassification of Plaintiffs’ job duties

and salary freezes without the approval of the Personnel Board.

217. The City of Pelham has employed Seale as City Clerk or Finance

Director or City Clerk/Finance Director when he has been elected as a member of

51

the City Council of the City of Columbiana in violation of Article XVII, § 280,

Alabama Constitution of 1901.

WHEREFORE, as a result of Defendants’ wrongful acts, Plaintiffs Mitchell,

Gray, Walters, Tankersley, Buse and White have been denied merit/step raises paid

to other City employees; have been reassigned to jobs outside of their job

classifications; have had their job duties changed without their classification with

the Personnel Board having been changed or revised; have been harassed and their

jobs threatened by Defendants; and have as a result of the Mercer study

purportedly approved by the City of Pelham Council and Murphy been again

reclassified without the approval or knowledge of the Personnel Board. Therefore,

Plaintiffs request this Honorable Court to:

a) enter a declaratory judgment holding that Defendants lack the authority to reclassify Plaintiffs without the approval and knowledge of the Personnel Board; that Defendants lack the authority to change the Plaintiffs’ pay based upon an unauthorized change in their job classifications or job duties; that Defendants violated Plaintiffs’ constitutional right to Equal Protection under the Constitution of the State of Alabama, Article I, Section 1, when they froze Plaintiffs’ pay and did not freeze the pay of all City employees; that Shepherd is not the authorized Department Head of the Pelham Civic Complex, is not authorized to drive a City vehicle, is not authorized to evaluate the Plaintiffs’ job performance; is not authorized to remove Mitchell from her position and to replace her with her friend and former employee Barbara Pepper, that she is not employed lawfully in her position or job classification, not approved by the Personnel Board, and that any action she has taken as the City of Pelham Marketing Director with regard to Mitchell, Gray, Walters, Buse and

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White are void and of no effect; that the City of Pelham has employed Tom Seale as City Clerk or Finance Director or City Clerk/Finance Director when he has been elected as a member of the City of Columbiana Council in violation of Article XVII, § 280, Alabama Constitution of 1901; that the actions of Tom Seale as City Clerk or Finance Director or City Clerk/Finance Director when he has been elected as a member of the City Council of the City of Columbiana violate Article XVII, § 280, Alabama Constitution of 1901, and are void; that Plaintiffs are entitled to the merit/step raises that they were entitled to in the years 2009, 2010 and 2011 and to pay Plaintiffs backpay and benefits as a result of Defendants’ wrongful or unauthorized freeze of Plaintiffs’ pay;

b) enter a writ of mandamus requiring Defendants to grant Plaintiffs the merit/step raises that they were entitled to in the years 2009, 2010 and 2011 and to pay Plaintiffs backpay and benefits as a result of Defendants’ wrongful or unauthorized freeze of Plaintiffs’ pay, and to require Nolen to comply with the requirements of the Pelham Personnel Board Act regarding job classifications and conducting a survey of job classifications;

c) enter a writ of mandamus requiring Defendants to place Plaintiffs in the jobs with the duties that are assigned to such jobs as are consistent with Plaintiffs’ proper job classifications, and to comply with the provisions of the Personnel Board Act regarding the appointment or election of members of the Personnel Board in a timely manner;

d) enter a preliminary and permanent injunction prohibiting Defendants from changing Plaintiffs’ job classifications or job duties from those properly assigned to Plaintiffs until such classifications or duties are changed or modified in accordance with the Personnel Board Act;

e) enter a preliminary and permanent injunction requiring Defendants to comply with the requirements of the Personnel Board Act regarding Plaintiffs’ classification and assignment of job duties;

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f) require Defendants to pay the costs of this action and

Plaintiffs’ attorneys’ fees; and

g) grant Plaintiffs such other relief as the Court may deem appropriate.

COUNT III - DECLARATORY JUDGMENT PLAINTIFFS MITCHELL, GRAY, WALTERS, TANKERSLEY, BUSE, WHITE,

BAILEY, MARTIN, COGGESHALL, DAVID MCCALL AND CYNTHIA MCCALL

218. Plaintiffs Mitchell, Gray, Walters, Tankersley, Miller, Buse, White,

Bailey, Martin, Coggeshall, David McCall and Cynthia McCall adopt paragraphs 1

through 217 as if fully set out herein.

219. Defendants adopted the Mercer study with the knowledge and the

understanding that the Mercer study conflicts with the Personnel Board Act.

220. Defendants adopted the Mercer study in Resolution 2011-5-16-02

with advice from counsel that Resolution 2011-5-16-02 calls for the HR Director

to develop job classifications, an action subject to the review of the Personnel

Board.

221. The adoption of the Mercer study and the resulting pay plan are

unauthorized or invalid because the adoption of the Mercer study and the pay plan

rely on changes in the classifications of the City of Pelham employees. The

Personnel Board Act authorizes the Personnel Board to classify or to revise the

classification or to change employees’ job classifications in the classified service.

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The pay plan cannot be applied without the reclassification of the City of Pelham

employees.

WHEREFORE, as a result of Defendants’ wrongful acts, Plaintiffs have

been denied merit or cost of living raises authorized under the previous pay plan,

and as a result of the Mercer study approved by the Pelham City Council and

Murphy, Plaintiffs have been reclassified without Personnel Board approval.

Therefore, Plaintiffs request this Honorable Court to:

a) enter a declaratory judgment holding that Defendants lack the authority to reclassify Plaintiffs without the approval and knowledge of the Personnel Board; that Defendants lack the authority to change the Plaintiffs’ pay based upon an unauthorized change in their job classifications or job duties; that Defendants lack the authority to adopt the Mercer study without first presenting the changes in job classifications to the Personnel Board; that the Defendants have violated Plaintiffs’ rights under the Alabama Constitution, Article I, § 22, by adopting an ex post facto ordinance; by violating the Personnel Board Act by failing to furnish copies of the pay plan to all groups concerned and to provide the opportunity for Department Heads, employees and the public to present their views, individually or collectively, before its purported City Council approval; that Plaintiffs will receive the merit/step raises to which they were entitled in the years 2009, 2010 and 2011; to pay Plaintiffs backpay and benefits as a result of Defendants’ wrongful or unauthorized freeze of Plaintiffs’ pay; to declare that the position of Municipal Court Administrator was not properly classified, announced, or filled; that the appointment of Mike Dickens to the position of Municipal Court Administrator violates § 36-25-13(c) and Rule 18(B), Ala. R. Jud. Admin.; that Mike Dickens’ vote on the Mercer Study and the pay plan violated § 36-25-9(c) in that the matter resulted in a sizeable financial gain to his son, an employee of the City; that the votes of Mike Dickens in

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favor of the Mercer Study and the pay plan were invalid as violations of § 36-25-9(c); that Mike Dickens is not authorized to be employed by the City as a Municipal Court Administrator; that Teresa Nichols’ vote for herself to be President of the City Council violated § 36-25-9(c), in that it resulted in financial gain to her in the form of a pay raise; and that the votes of Teresa Nichols as President of the City Council are invalid in that her vote for herself to be Council President violated § 36-25-9(c);

b) enter a writ of mandamus requiring Defendants to grant Plaintiffs the merit/step raises that they were entitled to in the years 2009, 2010 and 2011 and to pay Plaintiffs backpay and benefits as a result of Defendants’ wrongful or unauthorized freeze of Plaintiffs’ pay, and to require Defendant Nolen to comply with the requirements of the Personnel Board Act regarding job classifications and conducting a survey of job classifications;

c) enter a preliminary and permanent injunction prohibiting Defendants from changing Plaintiffs’ job classifications or job duties from those properly assigned to Plaintiffs until such classifications or duties are changed or modified in accordance with the Personnel Board Act;

d) enter a preliminary and permanent injunction requiring Defendants to comply with the requirements of the Personnel Board Act regarding Plaintiffs’ job classifications and assignment of job duties;

e) require Defendants to pay the costs of this action and Plaintiffs’ attorneys’ fees; and

f) grant Plaintiffs such other relief as the Court may deem appropriate.

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COUNT IV - DEPRIVATION OF DUE PROCESS PLAINTIFFS MITCHELL, GRAY, WALTERS, TANKERSLEY,

BUSE AND WHITE

222. Mitchell, Gray, Walters, Tankersley, Miller, Buse and White adopt

paragraphs 1 through 221 as if fully set out herein.

223. Mitchell, Gray, Walters, Tankersley, Miller, Buse and White assert

that they are entitled to due process of law under the Alabama Constitution of

1901.

224. Mitchell, Gray, Walters, Tankersley, Miller, Buse and White assert

that they were denied due process when Defendants arbitrarily and capriciously

determined that Mitchell, Gray, Walters, Tankersley, Miller, Buse and White were

not entitled to merit/step raises, although all other employees received such raises;

that Mitchell, Gray, Walters, Tankersley, Miller, Buse and White’s salaries were

frozen; and that Mitchell, Gray, Walters, Tankersley, Miller, Buse and White’s job

duties, descriptions and classifications could be changed at their whim, and not

pursuant to the Pelham Personnel Board Act.

225. As a result of Defendants’ wrongful or unconstitutional acts, Mitchell,

Gray, Walters, Tankersley, Buse and White have been denied merit/step raises paid

to other City employees; have been reassigned to jobs outside of their job

classifications; have had their job duties changed without their classification with

the Personnel Board having been changed or revised; have been harassed and their

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jobs threatened by Defendants; and have as a result of the Mercer study

purportedly approved by the City of Pelham Council and Murphy been again

reclassified without the approval or knowledge of the Personnel Board.

WHEREFORE, Mitchell, Gray, Walters, Tankersley, Buse and White

request compensatory and punitive damages, and such other relief as the Court

may deem appropriate, for Defendants’ violations of Plaintiffs’ constitutional right

to due process under the Alabama Constitution of 1901, Art. I, § 6.

COUNT V - DEPRIVATION OF DUE PROCESS PLAINTIFFS BAILEY, MARTIN, COGGESHALL, DAVID MCCALL

AND CYNTHIA MCCALL

226. Plaintiffs Dale Bailey, Justin Martin, James Coggeshall, David

McCall and Cynthia McCall adopt paragraphs 1 through 225 as if fully set out

herein.

227. Plaintiffs assert that they are entitled to due process of law under the

Alabama Constitution of 1901.

228. Plaintiffs assert that defendants acted arbitrarily and capriciously and

violated Plaintiffs’ right to due process when Defendants arbitrarily and

capriciously determined that these Plaintiffs must be monitored, account for their

work day on an hour to hour basis, must be followed and must be confronted about

taking breaks in the presence of armed police officers.

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229. Plaintiffs assert that the Defendants violated their right to due process

when Defendants arbitrarily and capriciously disciplined them by suspending them

without pay without following the Pelham Personnel Board Act.

230. As a result of Defendants’ wrongful or unconstitutional acts, Plaintiffs

Dale Bailey, Justin Martin, James Coggeshall, David McCall and Cynthia McCall

have been harassed and their jobs threatened by Defendants; have been denied

opportunities for other positions with the City; and have lost wages as a result of

wrongful or constitutional suspensions without pay.

WHEREFORE, Plaintiffs Mitchell, Gray, Walters, Tankersley, Buse and

White request compensatory and punitive damages, including but not limited to

lost wages, interest on wages, the removal of the suspensions from their personnel

files, and such other relief as the Court may deem appropriate, for Defendants’

violations of Plaintiffs’ constitutional right to due process under the Alabama

Constitution of 1901, Art. I, § 6.

COUNT VI – CONVERSION - PLAINTIFFS MITCHELL, TANKERSLEY, GRAY, WALTERS, MILLER, BUSE, WHITE, BAILEY, MARTIN,

COGGESHALL, DAVID MCCALL AND CYNTHIA MCCALL

231. Plaintiffs Carolyn Mitchell, Tami Tankersley, Mary Gray, Judy

Walters, Allison Miller, Connie Buse, Randy White, Dale Bailey, Justin Martin,

James Coggeshall, David McCall and Cynthia McCall adopt paragraphs 1 through


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232. Plaintiffs assert that they donated sick time to the Street Department

employee who was diagnosed with cancer and/or a form thereof and who died

approximately nine months before the donated sick time would have run out.

233. Plaintiffs assert that Defendants Murphy, Nolen, Seale and the City

converted the unused donated sick time for the benefit of the City and that

Defendants have unlawfully refused to transfer the unused donated sick time to an

employee leave bank for the use of other City employees in need of sick time.

WHEREFORE, PREMISES CONSIDERED, Plaintiffs request

compensatory damages for the unused donated sick time and punitive damages

against Defendants Murphy, Nolen and Seale for their willful, wanton and/or

oppressive conduct, plus interest and costs, and such other relief as the Court may

deem appropriate.

COUNT VII - MONEY HAD AND RECEIVED PLAINTIFFS MITCHELL, TANKERSLEY, GRAY, WALTERS, MILLER, BUSE, WHITE, BAILEY, MARTIN, COGGESHALL, DAVID MCCALL

AND CYNTHIA MCCALL

234. Plaintiffs Carolyn Mitchell, Tami Tankersley, Mary Gray, Judy

Walters, Allison Miller, Connie Buse, Randy White, Dale Bailey, Justin Martin,

James Coggeshall, David McCall and Cynthia McCall adopt paragraphs 1 through


235. Plaintiffs assert that they are entitled under Alabama law to past,

present and future monies in the form of lost earnings or wages resulting from

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Defendants’ unauthorized, illicit, improper, unethical and arbitrary augmentation

of Plaintiffs’ compensation system, pay plan or pay scale.

236. Prior to Defendants’ actions which are the subject of Plaintiffs’

claims, Plaintiffs were compensated pursuant to a compensation system, pay plan

or pay scale which provided for regularly scheduled merit/step pay increases for

employees, as well as appropriate overtime compensation for time worked beyond

40 hours in any given work week within a given pay period.

237. The original compensation system, pay plan or pay scale referenced

could not be augmented without the approval of the City Council and the Personnel

Board of the City of Pelham, after which approval was received, any changes to

the compensation system, pay plan or pay scale would first go into effect 30 days

after such changes were approved.

238. Defendants’ unauthorized, illicit, improper, unethical and arbitrary

actions in augmenting the compensation system, pay plan or pay scale by which

Plaintiffs were compensated without the required approval of the City Council and

Personnel Board of the City of Pelham, and Defendants’ retroactive application of

such changes to the compensation system, pay plan or pay scale rendered

Defendants’ actions without legitimate effect and left the former compensation

system, pay plan or pay scale active and in place during all times relevant to this

lawsuit.

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239. While the original compensation system, pay plan or pay scale was

still in place, Defendants collected funds, revenue and monies which should have

been distributed to Plaintiffs pursuant to the original compensation system, pay

plan or pay scale, but which were instead distributed according to the unauthorized

and ineffectual augmented compensation system, pay plan or pay scale.

240. Defendants withheld and continue to withhold money had and

received to which Plaintiffs are rightfully entitled and which Defendants had a duty

to pay to Plaintiffs pursuant to the original compensation system, pay plan or pay

scale.

WHEREFORE, Plaintiffs Mitchell, Tankersley, Gray, Walters, Miller, Buse,

White, Bailey, Martin, Coggeshall, David McCall and Cynthia McCall request

compensatory and punitive damages, including but not limited to lost past, present

and future wages and earnings, interest on wages and earnings and overtime

compensation due pursuant to the original compensation system, pay plan or pay

scale, including consideration and application of any merit-based pay increases

which would have been due to Plaintiffs pursuant to the original compensation

system, pay plan or pay scale.

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DATE: January 25, 2012.

Respectfully Submitted,

/s/Wayne Morse, Jr. Charlie Waldrep Wayne Morse, Jr. (MORO47) Susan Walker Attorneys for Plaintiffs Jim Collins, James Burks, Carolyn Mitchell, Tami Tankersley, Mary Gray, Judy Walters, Allison Miller, Connie Buse, Randy White, Dale Bailey, Justin Martin, James Coggeshall, David McCall, and Cynthia McCall. WALDREP STEWART & KENDRICK, LLC 2323 Second Avenue North Birmingham, Alabama 35203 Telephone: (205) 254-3216 Facsimile: (205) 324-3802

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CERTIFICATE OF SERVICE

I hereby certify that I have on January 25, 2012, served a copy of the above and foregoing Amended Complaint upon all parties and counsel of record to the said cause by sending each defendant a copy of the amended complaint by U.S.P.S and using the AlaFile system which will send electronic notification of same as follows:

CITY OF PELHAM c/o Mayor Donald Murphy 3162 Pelham Parkway Pelham, AL 35124 MURPHY DONALD MURPHY Pelham City Hall 3162 Pelham Parkway Pelham, AL 35124 TOM SEALE Pelham City Hall 3162 Pelham Parkway Pelham, AL 35124 JERRY NOLEN Pelham City Hall 3162 Pelham Parkway Pelham, AL 35124 EVA SHEPHERD Pelham City Hall 3162 Pelham Parkway Pelham, AL 35124 FRANK “BUTCH” ELLIS JR., ESQ. Pelham City Attorney Wallace Ellis Fowler & Head P.O. Box 587 Columbiana, AL 35051-0587

/s/ Wayne Morse, Jr.

OF COUNSEL

notice of electronic filing - almedia.al.com/spotnews/other/amended pelham personnel suit.pdf ·...

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