smith and street response filing

7/24/2019 Smith and Street Response Filing

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AlaFileE-Notice

To: HALLJOHNBRYANT

[email protected]

01-CV-2014-901437.00

Judge:DONALDE.BLANKENSHIP

NOTICEOFELECTRONICFILING

INTHECIRCUITCOURTOFJEFFERSONCOUNTY,ALABAMA

ThefollowingmatterwasFILEDon11/9/20154:27:44PM

HARRINDASMITHETALV.THEBIRMINGHAMCITYSCHOOLBOARDETAL

01-CV-2014-901437.00

RESPONSETOMOTIONTODISMISSPURSUANTTORULE12(B)

NoticeDate: 11/9/20154:27:44PM

[Filer:GEARGAYLEHAYWOOD]

ANNE-MARIEADAMS

CIRCUITCOURTCLERK

JEFFERSONCOUNTY,ALABAMA

716N.RICHARDARRINGTONBLVD.BIRMINGHAM,AL35203

205-325-5355

[email protected]

JEFFERSONCOUNTY,ALABAMA

C001 SMITH HARRINDA

C002 STREET MARION



1

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA

HARRINDA SMITH, )MARION STREET, )

Plaintiff/Petitioner, )

)vs. ))

THE BIRMINGHAM CITY SCHOOL BOARD; ) CASE NO.: 01-CV- 2014-901437 DR. CRAIG WITHERSPOON, )in his individual capacity as )Superintendent of the Birmingham City Schools; )ARTHUR WATTS ) in his individual capacity as Chief Financial )Officer of the Birmingham City Schools; )

et.al. )

)Respondents. )

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT

COMES NOW, Plaintiffs Harrinda Smith and Marion Street, by and through

undersigned counsel, and hereby files in opposition to Defendants’ Motion for Summary

Judgment. Plaintiffs incorporate by reference, as if set forth herein, Plaintiffs’ Briefs and

Evidentiary Submission filed in support of Plaintiffs’ Motions for Summary Judgment on Count

One (Mandamus) and Count Two (42 USC § 1983).

I. Defendants’ Recurring Themes Mischaracterize the Issues Before the Court.

In the “Preface” to their Brief, Defendants assert that Plaintiffs’ Complaint focuses on the

“methodology” that the Birmingham Board used to assign Plaintiffs to the salary matrix on the

2014 Classified Salary Schedule. Plaintiffs challenge this mischaracterization. The Complaint

alleges and the record evidence shows the Defendants’ intentionally refuse to follow the

Birmingham Board’s duly enacted 2014 Classified Salary Schedule. It is without dispute that

ELECTRONICALLY FILED11/9/2015 4:27 PM

01-CV-2014-901437.00CIRCUIT COURT OF

JEFFERSON COUNTY, ALABAMANNE-MARIE ADAMS, CLER

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salary STEP placement is categorized by “years of experience”.1 Defendants concede that they

did not adhere to the 2014 Classified Salary Schedule. Defendants try to claim the existence of a

“practice,” that is not in writing and not officially enacted policy, yet it allows them to bypass the

express language of the duly-enacted 2014 Classified Salary Schedule for some, though not all,

employees. In this instance, Defendants have denied proper STEP placement for Plaintiffs Smith

and Street, who had worked for the Birmingham Schools as secretaries for over a decade. At the

same time, these Defendants granted “years of experience” to newly hired secretarial personnel

and to those rehired following their departure from the Birmingham System. In addition,

Defendants have arbitrarily granted some currently employed secretaries credit for years of

experience. Plaintiffs challenge these unfair pay practices and seek relief from the wrongful

actions that are clearly arbitrary, capricious, fraudulent, and an abuse of authority.

After being challenged, these Defendants now rely upon what they have dubbed the

“conversion procedure.” This “procedure” is not in writing, has never been officially approved,

and has never been communicated to the employees. With this new “procedure” admittedly

being followed to save money, Plaintiffs Smith and Street were “moved” to the Salary Step that

approximated their 2013 salary with an allowance for a slight increase.2 Defendants concede

that Plaintiffs were not given credit for “years of experience” as set forth in the 2014 Classified

Salary Schedule. Plaintiffs asked the Board to follow their own policy. In response, the Board

called their request “illogical” and “unsustainable.” Plaintiffs’ position is not illogical nor is it

1 The 2014 Classified Salary Schedule states in clear English that STEPS for payroll purposesare categorized as years of experience. Any claim for the need to defer to “administrativeconstruction” is unworthy of further analysis.2 Plaintiff Smith was moved from STEP 11 to STEP 1. Plaintiff Street was moved from STEP 14to STEP 2.

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unsustainable, especially in light of the fact that similarly-situated employees are given credit for

years of experience, as are newly hired employees.

II. The “Conversion Procedure/Process” is Not a Legally Enacted Board Policy

Addressed next is Defendants’ recently-minted excuse, the “conversion process,” which

supposedly allows departure from the express pay provisions set forth in the duly approved 2014

Classified Salary Schedule. The record evidence is without dispute. Defendants Witherspoon and

Watts concede the following: the practice being claimed is not memorialized in any official

Birmingham Board Policy, nor has this “conversion practice” been published to Birmingham

Board Members, the State Department of Education, or the affected classified personnel,

including Plaintiffs Smith and Street.3 Both conceded that they lacked discretion to alter the

terms of the official Board approved 2014 Classified Salary Schedule.4 Both also conceded that

they intended not to adhere to the approved 2014 Classified Salary Schedule, even as they

recommended its approval and assured the Birmingham Board sufficient funds existed to meet

the budgeted payroll.5

Plaintiffs rightfully challenge the Defendants’ unauthorized departure from the 2014

Classified Salary Schedule. With the implementation of the 2014 Classified Salary Schedule,

3 CFO Watts did not communicate in writing to the Birmingham Board members, to the StateDepartment of Education, or affected classified personnel that (with the implementation of the2014 Classified Salary Schedule) “years of experience” would not determine STEP placementfor currently employed classified personnel. (Witherspoon Depo. at 119-120; Watts Depo. at 32,40, 62-63; Volker Depo. at 28-30, 31-34, 38-39). 4 Defendants Witherspoon and CFO Watts possessed no discretion as to STEP placement

because the duly enacted 2014 Classified Salary schedule expressly stated that STEPS are“categorized” as “years of experience.” (Watts Depo. at 21-23, 36, 38-39 and referenced Exhibit12 at pgs. 3, 14-15).5 CFO Watts certified to the Birmingham Board of Education that sufficient funds were in the

2014 Budget to pay classified personnel in accordance with the 2014 Classified SalarySchedule. (Witherspoon Depo. at 56-57; Watts Depo. at 18, 22-23, 36, 45 & 54 and referencedExhibit 7).

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Defendants lowered Plaintiff Smith from STEP 11 to STEP 1 and lowered Plaintiff Street from

14 to STEP 2. As a result each lost approximately $5,000.00 annually.6 At the same time,

Defendants new hires, and rehires were given credit for years of experience as were other

similarly-situated existing employees.7 These undisputed facts, in and of themselves clearly

demonstrate the pay inequity among similarly situated personnel.

Defendants offer affidavits of several Birmingham Board members in an attempt to

justify the “conversion process”: Wardine Alexander, Brian Giattina, Willie James May, Jr.,

April Williams, and Phyllis F. Wyne. Each of the affiants executed under oath virtually identical

affidavits claiming personal knowledge of the supposed “conversion method” that they claim

was previously employed in 2004.8 In so doing, these Board members apparently are admitting

complicity in acting in a manner inconsistent with the express language of the 2014 Classified

Salary Schedule. Not revealed in their copy-cat affidavits is any awareness that the Birmingham

Board had never approved the “conversion process” as a duly-enacted Board policy. But, these

affiants go further. They admit that they bypassed the salary schedule for some currently

6 With the implementation of the 2014 Classified Salary Schedule, Plaintiff Smith’s STEP

placement was lowered from STEP 11 (reflecting actual years of experience) to STEP 1, which

corresponds to no experience. The salary difference between STEP 11 and STEP 1 is$5,477.00. (McDaniels Depo. Exh. 10, BOE stamped pg. 291; see generally Smith Affidavit).With the implementation of the 2014 Classified Salary Schedule, Plaintiff Street’s STEP placement was lowered from STEP 14 (reflecting actual years of experience) to STEP 2, which

corresponds to two years of experience. The salary difference between STEP 14 and STEP 2 is$5,643.00. (McDaniels Depo. at 120-121; see generally Affidavit of Street).7 In contrast, newly hired (or rehired) classified personnel were assigned to the STEP thatcorresponded to their respective “years of experience.” (McDaniels Depo. at 37-43, 44-45, 60-62, and referenced depo. exhibits 4-9). Also in contrast, STEP placement for classified personnelassigned to the Central Office retained their former (2013) STEP placement, that is accordingto their respective “years of experience.” (McDaniels Depo. at 98-104 and referenced depositionexhibit 11).8 Of the Affiants, Brian Giattiana and Wardine Alexander were not on the Board in 2004, yetthey stated that they had personal knowledge of events that occurred on the Board in 2004. TheBoard President did not offer an affidavit.

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employed secretaries to save money. In fact, the Human Resource Director McDaniels admitted

during deposition testimony that, to save money, some would be deprived of the salary schedule

they were “due,” a clear admission that the Board was treating certain employees differently.

(McDaniels Depo. at pg. 140). The “conversion process” was then and is now but a ruse to

justify the Boards’ failure to follow its own duly enacted Classified Salary Schedule.

The affidavits presented by Board Members Alexander, Giattina, May, Williams, and

Wyne are in stark contrast to the deposition testimony of Board Member Virginia Volker, who

served on the Birmingham Board during the period 1998 through 2013. As such, she had

personal knowledge of the enactment of the 2014 Salary Schedule as well as institutional

knowledge of Board policies. It was her expectation that the school district would follow the

salary schedule as enacted by the Birmingham Board. (Volker Depo. at 23).

Ms. Volker testified that it was her expectation that a new hire into a classified position,

such as a secretary, would be given credit for years of experience. (Volker Depo. at 24-27). Ms.

Volker does not recall anyone, at the time she voted on the 2014 Classified Salary Schedule,

telling the Board members that some (currently employed) Classified Personnel would begin on

STEP 1 without regard to their years of experience. (Volker Depo. at 28).

Ms. Volker reviewed her notes regarding the 2014 Classified Salary Schedule and did not

locate any notes that reflect the Board’s current contention that the salary schedule was not going

to be honored as enacted. (Volker Depo. at 29-30). The Birmingham Board’s Superintendent,

Craig Witherspoon, did not inform Board Member Volker of any complaints lodged about the

implementation of the 2014 Classified Salary Schedule. (Volker Depo. at 30). Ms. Volker stated

that when The Birmingham Board’s CFO (Arthur Watts) made his presentation to the

Birmingham Board concerning the 2014 Classified Salary Schedule, she was not informed that

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certain secretaries would not get credit for “years of experience.” (Volker Depo. at 33-34). Had

Watts said this, Ms. Volker testified that she would have told him “This is wrong.” (Volker

Depo. at 33-34). To Ms. Volker “it seems unequal” to give credit for years of experience to those

rehired following the RIF and not to currently employed personnel. (Volker Depo. at 36-38). Ms.

Volker further testified that placing a new hire on STEP 1 and also placing a veteran ten-year

employee on STEP 1 is inequitable and not what she expected to happen when she voted for the

2014 Classified Salary Schedule. (Volker Depo. at 38-39). Until the day preceding her deposition

testimony --that is the day she spoke with Birmingham Board lawyers-- Ms. Volker was unaware

that those current secretaries/clerks moved to Schedule # C1 would be treated differently for pay

purposes.9 (Volker Depo. at 31-32).

Defendants reliance on the so-called “conversion method/process” is unworthy of belief

for other reasons as well. The “procedure” is not mentioned in the 2014 Classified Salary

Schedule nor is it referenced in the 2013 Classified Salary Schedule. (Volker Depo. Exhibits 1 &

2 at pg. 3). In fact, the use of the “conversion” method to bypass the official Classified Salary

Schedule is not mentioned in the 2012 State “takeover” documents supplied by Defendant Watts

in his Affidavit.

The Birmingham Board has published many other important policies over the years. Yet

these defendants have not produced nor can they produce an official Board enacted policy that

permits discretion in determining placement on the salary matrix. The sole policy is set forth in

the first section (pg. 3) of the 2013 and 2014 Classified Salary Schedule. That policy statement is

styled “Introduction.” The language contained in that section relates to all attached pay schedules

for various Classified personnel. It states as follows:

9 Both Plaintiff Smith and Plaintiff Street are on Classified Salary Schedule #C1. Neither was thesubject of a promotion.

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INTRODUCTION

The 2012-2013 Salary Schedule provides a uniform and equitable payment of wages for service rendered by classified employees. Classified personnel include all support

employees who do not work as certified employees.

Years of experience are categorized as “STEPS” on the classified salary schedule. Experience for support employees will be granted based on public education experience

in this system, other public education experience in the State of Alabama, or other publiceducation experience outside the state. It is the responsibility of the employee to submit

the appropriate information pertaining to experience, degree/certification and to verifythe receipt of the accurate salary.

Given the clarity of the foregoing pay policy, Defendants Witherspoon and Watts

conceded in deposition that they were in fact legally obligated to adhere to the 2014 Classified

Salary Schedule and that they possessed no discretion to deviate from the Classified Salary

Schedule.10

In unison on November 2, 2015, in sworn affidavit testimony Watts and various Board

members, swore under oath that this conversion procedure stemmed from a 2004 reduction in

force. Their sworn testimony is not backed by any official Board Policy. It is likely they are

referring to a 2004 suit against the Birmingham Board and CFO Watts, CV 2005-5847 Barber v.

Birmingham Board and Andre Watts (sic).11

Both the Birmingham Board and CFO Arthur Watts

10 Defendants Superintendent Witherspoon, Chief Financial Officer Watts and Human Resource

Director Jeffery McDaniels were legally obligated by Birmingham Board policy and by AlabamaState law to implement the duly enacted 2014 Classified Salary Schedule. (McDaniels Depo. at87; Witherspoon Depo. at 16-17, 28-29, 117 and Depo. Exh. 5-6; Watts Depo. at 14-15, 21-22,36 & 54 and referenced Exhs. 4 & 6; Volker Depo. at 17 and referenced Exhs. 2-3). The 2014Classified Salary Schedule expressly stated that STEP placement is determined (“categorized”) by “years of experience.” STEP placement on the previous salary schedule (The 2013 ClassifiedSalary Schedule) also stated that STEP placement was categorized by “years of experience.”(McDaniels Depo. at 17-21, 29, 26-27, 30-31, 35 & Depo. Exhs. 2 & 3 at pg. 3).11 “Conversion” was not an issue raised by the Birmingham Board. The complaint was based onsenior Child Nutrition Program Managers only being given credit for certain years of experiencewhere as newly hired or newly promoted managers were given full credit for all years of

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(individually) were sued for failing to credit years of experience to lunchroom managers who

held that position with the adoption of the newly revised Lunchroom Manager salary schedule.

That case was voluntarily dismissed after the Defendants corrected the error and granted

lunchroom managers credit for all years of experience worked in the school lunchroom and paid

lost wages. Defendants’ current legal team served as counsel for Defendants in this litigation as

well.

There are, however, similarities with the Barber litigation that go further than just shared

counsel. In both cases, the Birmingham Board and CFO Watts intentionally elected not to follow

the duly approved salary schedule in an effort to save money at the expense of employees. They

also try to claim that somehow Plaintiffs would reap a windfall at the expense of the Birmingham

Board. In actuality, the way this unwritten and undocumented conversion procedure stands,

should either Plaintiff leave her job and then get rehired by the Board, she would receive full

credit for her years of experience. That would negate any costs savings to the Board. If the

Plaintiffs left their jobs and did not return, their replacements would be given full credit for their

years of experience. Again, no cost savings. Thus, any savings anticipated by the Board rely

upon the inequitable treatment of the Plaintiffs alone. In effect, denying two of the nearly 200

secretaries in the Birmingham system credit for years of experience would save a total

$10,000.00 per year, hardly the staggering amount anticipated by Defendants. In contrast, the

harm to these individual Plaintiffs is immense. Plaintiffs Street and Smith were treated

differently than others similarly situated and without intervention from this Court, will be in the

foreseeable future.

experience in the Child Nutrition Program. An unstamped copy of the Barber complaint isattached.

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Defendants try to claim that this newly fashioned salary schedule enhances prospects for

increased salary for Classified Employees. The facts belie this assertion. As with the 2013

Classified Salary Schedule, there are still 17 STEPS on the salary schedule. The only changes are

the salary amounts which increase incrementally over 30 years of experience. The Birmingham

Board tries to claim that this “conversion procedure” rewards longevity. This is not so. Plaintiff

Street, who was formally on STEP 14, has been arbitrarily lowered to STEP 2. She must now

work 28 more years to reach the salary ceiling. In all, she would have to work 43 years in total to

reach the salary ceiling. In contrast, a person just entering the system would only need to work

30 years to reach the salary ceiling. Those that come to the system with experience would

receive credit for their experience and would then have a head start on the Plaintiffs for reaching

the salary ceiling.

To avoid this inequitable treatment, Plaintiffs would have to resign and be rehired to

receive credit for their years of experience. Not unlike Jessie Lee who was terminated and

rehired. He was given full credit for his years of experience. This is admitted to by Defendant

McDaniels in his deposition. (McDaniels Depo. Exh. 4 at BOE 583 and 580 and McDaniels

Depo. at 37-43). McDaniels also admitted that some, but not all, of the secretaries were denied

credit for the years of experience they were due as a cost saving measure. Most tellingly, there

are no contemporaneous reports or analysis in writing that convey this newly proffered reason

for denying Plaintiffs credit for years of experience that paying Plaintiffs for years of experience

would be a crushing financial blow.

It should not be overlooked that Defendants Witherspoon and Watts admitted there was

no written and duly enacted conversion policy. (Witherspoon Depo. at 40-44, 115). Moreover,

the Defendants admitted that they never sent anything in writing to the state, or to the interested

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employees, or to the Birmingham Board. (Witherspoon at pg. 119-120). Despite the foregoing,

these Defendants are asking this Court to accept this so-called “conversion” practice that is not in

writing, not duly enacted by the Birmingham Board, and not communicated to the affected

stakeholders. In essence, Defendants are asking this Court to give safe harbor to this

unauthorized “conversion” practice which would allow the Birmingham Board to evade their

duty to follow its own duly-enacted Classified Salary Schedule.

III. Defendant Watts was Duly Added and Properly Served.

On September 17, 2014, Plaintiffs filed a motion to add Arthur Watts as a necessary party

to this litigation. In that motion, Plaintiffs stated claims against CFO Watts and asked this Court

to issue service pursuant to the motion, which included a copy of the Second Amended

Complaint. This Court denied that motion, instead opting to reconsider after the deposition of

CFO Watts. After the Deposition of Watts, Plaintiffs renewed their motion to add Watts as a

necessary party on August 24, 2015. In that motion, Plaintiffs articulated their causes of action

against Watts and requested that this Court issue service pursuant to the granting of this motion.

This Court granted that motion. At this point, all Defendants were fully aware that Watts was a

named Defendants sued in his individual capacity.

Watts was served a copy of the Second Amended Complaint during his deposition on

July 28, 2015 and that copy was marked Watts Exhibit 4. He was even questioned about the

complaint during his deposition. (Watts Depo. at pg. 14). It was also established in that

deposition that Afrika Parchman was Defendant Watts’ attorney, and that Defendant Watts had

attended the depositions of HR Director McDaniels, Former Board Member Volker, and the

depositions of both Plaintiffs Smith and Street as the corporate representative. Watts further

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responded to subpoena requests on behalf of the Board of Education. Watts cannot reasonably

claim any unfair surprise or prejudice given his involvement throughout this litigation.

IV. Defendants Cannot Avail Themselves of Sovereign Immunity

Plaintiffs adopt herein the Brief and Evidentiary Submission filed in Support of

Plaintiffs’ Motion for Partial Summary Judgment as to Count I. Under the Undisputed Material

Facts, Defendants cannot avail themselves of Sovereign Immunity.

V. Due Process and Equal Protection Claims

Plaintiffs adopt herein the Brief and Evidentiary Submission filed in Support of

Plaintiffs’ Motion for Partial Summary Judgment as to Count II. The undisputed Material facts

support Plaintiffs due process and equal protection claims.

It should not go unnoticed that Defendants mischaracterize Plaintiffs’ claims by falsely

saying that the Plaintiffs are seeking STEP placement to “near the top” of the schedule. At risk of

being repetitive, Plaintiffs will repeat:

Defendants try to claim that this newly fashioned salary schedule enhances prospects for increased salary. The facts belie this assertion. There are still 17 steps on

the salary schedule. The only changes are the salary amounts during the years ofexperience. The Birmingham Board tries to claim that this “conversion procedure”

rewards longevity. This is not so. Plaintiff Street, who was formally on STEP 16, hasbeen arbitrarily lowered to STEP 2. She must now work 28 more years to reach the

salary ceiling. In all, she would have to work 44 years in total to reach the salary ceiling. In contrast, a person just entering the system would only need to work 30 years to reach

the salary ceiling. Those that come to the system with experience would receive credit fortheir experience and would then have a head start on the Plaintiffs for reaching the

salary ceiling.

VI. Qualified and State Agent Immunity

Defendants do not merit qualified immunity or state agent immunity because these

officials have exercised power irresponsibly and intentionally misused the authority invested in

them by the State of Alabama. The record evidence is clear that Defendants do not merit

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qualified immunity. Defendants have exercised all discretion by producing the 2014 Classified

Salary Schedule and submitting that schedule to the process of enactment, whereby Defendant

Watts certified that the funds were sufficiently available to pay salaries at the levels detailed in

the 2014 Classified salary schedule and the Board voted to enact the 2014 Classified Salary

Schedule as written, without any language that would permit these two individual defendants to

deviate from that schedule.

In light of the following undisputed facts, Defendants cannot claim qualified or state

agent immunity. It bears repeating that Defendants Superintendent Witherspoon, Chief Financial

Officer Watts and Human Resource Director Jeffery McDaniels were legally obligated by

Birmingham Board policy and by Alabama State law to implement the duly enacted 2014

Classified Salary Schedule. (McDaniels Depo. at 87; Witherspoon Depo. at 16-17, 28-29, 117

and Depo. Exh. 5-6; Watts Depo. at 14-15, 21-22, 36 & 54 and referenced Exhs. 4 & 6; Volker

Depo. at 17 and referenced Exhs. 2-3). The 2014 Classified Salary Schedule expressly stated that

STEP placement is determined (“categorized”) by “years of experience.” STEP placement on

the previous salary schedule (The 2013 Classified Salary Schedule) also stated that STEP

placement was categorized by “years of experience.” (McDaniels Depo. at 17-21, 29, 26-27, 30-

31, 35 & Depo. Exhs. 2 & 3 at pg. 3).

Defendants Witherspoon and CFO Watts possessed no discretion as to STEP placement

because the duly enacted 2014 Classified Salary schedule expressly stated that STEPS are

“categorized” as “years of experience.” (Watts Depo. at 21-23, 36, 38-39 and referenced Exhibit

12 at pgs. 3, 14-15). CFO Watts certified to the Birmingham Board of Education that sufficient

funds were in the 2014 Budget to pay classified personnel in accordance with the 2014

Classified Salary Schedule. (Witherspoon Depo. at 56-57; Watts Depo. at 18, 22-23, 36, 45 & 54

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and referenced Exhibit 7.) CFO Watts did not communicate in writing to the Birmingham Board

members, to the State Department of Education, or affected classified personnel that (with the

implementation of the 2014 Classified Salary Schedule) “years of experience” would not

determine STEP placement for currently employed classified personnel. (Witherspoon Depo. at

119-120; Watts Depo. at 32, 40, 62-63; Volker Depo. at 28-30, 31-34, 38-39.) Instead, STEP

assignments for classified personnel (including Plaintiffs Harrinda Smith and Marion Street)

STEP were arbitrarily lowered to the salary STEP that closely approximated their previous

2013 salary rather than to the STEP that corresponded to their “years of experience.” (McDaniels

Depo. at 56-57, 83-84, 95; Witherspoon Depo. 40-44, 115; Watts Depo. at 19-20).

Jeffrey McDaniels, the Director of Human Resources, admitted that some classified

personnel were not placed on the STEP they were due because it would diminish the “reserve

fund” that the State Department of Education required during the period the Birmingham Board

was under State supervision. (McDaniels Depo. at 140). Both Superintendent Witherspoon and

CFO Watts admitted that at the time the 2014 Classified Salary Schedule was recommended for

passage, they did not intend to adhere to the provision that STEP placement is categorized as

“years of experience.” (Witherspoon Depo. at 43-45; Watts Depo. at 31). With the

implementation of the 2014 Classified Salary Schedule, Plaintiff Smith’s STEP placement was

lowered from STEP 11 (reflecting actual years of experience) to STEP 1, which corresponds

to no experience. The salary difference between STEP 11 and STEP 1 is $5,477.00. (McDaniels

Depo. Exh. 10, BOE stamped pg. 291; see generally Smith Affidavit). With the implementation

of the 2014 Classified Salary Schedule, Plaintiff Street’s STEP placement was lowered from

STEP 14 (reflecting actual years of experience) to STEP 2, which corresponds to two years of

experience. The salary difference between STEP 14 and STEP 2 is $5,643.00. (McDaniels

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Depo. at 120-121; see generally Affidavit of Street). In contrast, newly hired (or rehired)

classified personnel were assigned to the STEP that corresponded to their respective “years of

experience.” (McDaniels Depo. at 37-43, 44-45, 60-62, and referenced Depo. Exhibits 4-9). Also

in contrast, STEP placement for classified personnel assigned to the Central Office retained

their former (2013) STEP placement, that is according to their respective “years of experience.”

(McDaniels Depo. at 98-104 and Referenced Depo. Exh. 11). Classified personnel were assigned

to the STEP that closely corresponded (yet afforded an increase) to their 2013 salary so that they

would not be able to pursue an appeal of their STEP placement on the 2014 Classified Salary

Schedule. (McDaniels Depo. at 83-85; Witherspoon Depo. at 115).

Defendants are correct to quote the statement of state agent immunity from Ex Parte

Cranman, but they do so to their own detriment. Superintendent Witherspoon, CFO Watts, and

(with the addition of the new Board Affidavits) the Birmingham Board of Education are unable

to avail themselves of the state agent immunity outlined in Cranman because their actions are

not protected by this law. The formulation of a plan, policy or design that effects the

administration of the School Board must be in writing and distributed to the Board and its

employees. The Defendants admit that the “conversion” method/process was not written down,

nor was it published. However, the 2014 Classified Salary Schedule was produced with the full

discretion of Witherspoon and Watts, and it was duly enacted by the Board and published to the

employees of the Board. The allocation of resources should have been done during the drafting

process of the 2014 Classified Salary Schedule, when Witherspoon and Watts had discretion to

decide on the compensation of employees of the Board. Witherspoon and Watts both admitted

that they have a statutory duty to enact the 2014 Classified Salary Schedule as enacted by the

Board. (McDaniels Depo. at 87; Witherspoon Depo. at 16-17, 28-29, 117 and Depo. Exh. 5-6;

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Watts Depo. at 14-15, 21-22, 36 & 54 and referenced Exhs. 4 & 6; Volker Depo. at 17 and

referenced Exhs. 2-3).

The portion of Cranman that applied to the case at Bar is that there is no state agent

immunity for an agent who acts “willfully, maliciously, fraudulently, in bad faith, beyond his

authority, or under a mistaken interpretation of the law.”

These actions would not come within the discretionary planning functions articulated in

Ex parte Cranman, 792 So.2d 392. 405 (Ala. 2000). (ie. formulating plans, policies or designs;

exercising judgment in the administration of a department; discharging duties imposed on a

department; exercising judgment in the enforcement of criminal laws; or exercising judgment in

the discharge of duties imposed by statute, rule or regulation in educating students).

Additionally, The record evidence is without dispute that Defendant Watts failed to follow a

specific pay policy adopted by the Board. Watts is required to administer duties related to “fiscal

operations” in accordance with Board policies and to consistently adhere to said pay policies for

all employees in a pay class. In this instance, Watts did not consistently follow the Board’s pay

policies as applied to Plaintiffs Smith and Street. Plaintiffs submit that the Court has power to

compel state officials to perform their legal duties and to perform ministerial acts related to, in

this instance, Plaintiffs’ rate of pay. Taylor v. Troy State University, 437 So.2d 472 (Ala. 1983).

Because they have no discretion after they have exhausted their discretion in the drafting

of the 2014 Classified Salary Schedule, Defendants cannot avail themselves of the protection of

state agent immunity. In sum, the individual Defendants cannot reasonably claim that they were

acting within the scope of their discretionary immunity. Plaintiffs contend that the constitutional

right to equal protection and due process was clearly established so that a reasonable person

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would have known that their conduct, which in this case was undisputed, violated clearly

established law.

VII. Conclusion

For the foregoing reasons, Defendants Motion for Summary Judgment is due to be

denied. All material facts support Plaintiffs’ Motion for Summary Judgment on Claim I and

Claim II.

Respectfully submitted,

s/ Gayle H. GearGayle H. Gear, Esq.

s/ J. Bryant HallJ. Bryant Hall

The Law Offices of Gayle H. Gear2229 Morris AvenueBirmingham, AL 35203

CERTIFICATE OF SERVICE

I hereby certify that on November 9, 2015, I electronically filed the foregoing with theClerk of the Court using the AlaFile system, or by United States Postal Service to the following:

Afrika ParchmanGeneral Counsel,Birmingham Board of Education2015 Park PlaceBirmingham, AL 35203

Claire PuckettCarl JohnsonBishop, Colvin, Johnson, & Kent, LLC1910 1st Avenue NorthBirmingham, AL 35203

s/Gayle H. GearGayle H Gear, Esq.

s/J. Bryant HallJ. Bryant Hall, Esq.

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ELECTRONICALLY FILED11/9/2015 4:27 PM

01-CV-2014-901437.00CIRCUIT COURT OF

JEFFERSON COUNTY, ALABAMANNE-MARIE ADAMS, CLER

DOCUMENT 200



DOCUMENT 200

smith and street response filing

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