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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
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.
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).
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.
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
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
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