Criswell v. Mobile Hous. Bd. & Mobile Cnty. Pers. Bd., CIVIL ACTION 14-00447-KD-N

• Decision Date: 23 February 2016
• Docket Number: CIVIL ACTION 14-00447-KD-N
• Parties: TY CRISWELL, et al., Plaintiffs, v. MOBILE HOUSING BOARD and MOBILE COUNTY PERSONNEL BOARD, Defendants.
• Court: U.S. District Court — Southern District of Alabama

TY CRISWELL, et al., Plaintiffs, v. MOBILE HOUSING BOARDand MOBILE COUNTY PERSONNEL BOARD, Defendants.

CIVIL ACTION 14-00447-KD-N

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

February 23, 2016

ORDER

This matter is before the Court on Defendant Mobile Housing Board (Housing Board)'s Motion for Summary Judgment (Docs. 51-52, 58, 59, 66), Defendant Mobile County Personnel Board (Personnel Board)'s Motion for Summary Judgment (Docs. 54, 55, 59), Plaintiffs' Response (Docs. 73, 75), the Housing Board's Reply (Docs. 78, 80), and the Personnel Board's Reply (Doc. 79).¹

I. Findings of Fact²

A. The Parties

Plaintiffs are Alabama residents who were former hourly employees of the Housing Board's Maintenance Department and civil service merit system employees. (Doc. 69 at 3-4; Doc. 52-1 (Decltn. Dees (Personnel Board Executive Director); (Doc. 58-1 at 2 (Decltn. Bryant) (Housing Board Human Resources Coordinator).³ Defendant Housing Board is a public body comprised of five (5) commissioner appointed by the Mayor of the City of Mobile, chartered under Alabama law to provide and administer affordable housing programs for local citizens, and created and maintained per the Housing Authorities Law, Ala. Code § 24-1-1, et seq. (Doc. 66-1 at 1 (Decltn. Vaughn (Housing Board Executive Director)); Doc. 69 at 2; Doc. 58-1 at 2 (Decltn. Bryant)). Defendant Personnel Board of Mobile County, Alabama, is an organization created by the Alabama Legislature, Local Act 470 (1939), which governs and controls individuals in the Classified Service. (Doc. 69 at 3; Doc. 52-2 at 2; Doc. 52-1 at 1 (Decltn. Dees)).

B. Employment at the Housing Board

Plaintiffs were long-time hourly employees of the Housing Board, when their employment terminated in September 2014; Criswell has been employed since 1991, Knight since 1992, McCord since 1989, Peacock since 1997, Smiley since 2001, and Weaver since 2009. (Doc. 69 at 4; Docs. 52-4; 52-6; 52-8; 52-10; 52-12, 52-14, 52-16). Specifically, Plaintiff Weaver was employed as a painter, while Plaintiffs Coffman, Criswell, Knight, McCord, Peacock and Smiley held various jobs over the years but ultimately each became a Public Service Supervisor I or Project Housing Building Maintenance Supervisor (a/k/a Maintenance Supervisor). (Doc. 52-1 (Decltn. Dees at 6); Docs. 52-4; 52-6; 52-8; 52-10; 52-12, 52-14, 52-16). As Maintenance Supervisors, the Housing Board classified those Plaintiffs as "exempt" for purposes of the Fair Labor Standards Act. (Doc. 58-1 at 2 (Decltn. Bryant)).

The Housing Board receives approximately 98% of its funding from the U.S. Department of Housing an Urban Development (HUD). (Doc. 66-1 at 1 (Decltn. Vaughn)). In 2013, sequestration was imposed on federal discretionary spending resulting in automatic proration and a mid-year cut of almost 15% to the Housing Board maintenance and management department funding. (Id.) In 2014, HUD again prorated its public housing funding to the Housing Board, and the Housing Board underwent a second substantial reduction in funding. (Id.) The Housing Board implemented cost saving measures on several occasions, but by the Summer of 2014 could not balance its budget without a lay-off. (Id.) The Housing Board management believed it could achieve higher productivity by restructuring its Maintenance Department, moving towards a centralized maintenance operation. (Id.) The Housing Board eliminated middle management represented by the Maintenance Supervisors, whose duties were absorbed by higher level managers, to avoid a lay-off. (Id.) The Housing Board selected other employees for lay-offs, which included one (1) painter (out of 12). (Doc. 66-1 at 1 (Decltn. Vaughn)).

On August 11, 2014, pursuant to Personnel Board procedures, the Housing Board's Executive Director Vaughn formally requested a lay-off list from the Personnel Board, which was provided. (Doc. 52-1 at 5 (Decltn. Dees)). Per Rule XIII, the Personnel Board prepared the lay off list, ranking employees within each job classification, based on seniority, service ratings, etc. (Id.) This established the order in which employees within each classification must be laid off. (Id.) In September 2014, the Housing Board laid-off 12 merit system employees from the following classifications: Housing Manager I, Maintenance Supervisor, Painter, Public Service Worker I, Housing Counselor, Utility Clerk, Office Assistant I. (Id.) The lay-offs were implemented in the order mandated by Personnel Board Rules and Local Act 470. (Id.)

At the time of these lay-offs six (6) Plaintiffs, Coffman, Criswell, Knight, McCord, Peacock and Smiley, were classified as Maintenance Supervisors. (Doc. 52-1 at 6 (Decltn. Dees)). The Housing Board laid off six (6) of the seven (7) Plaintiffs per Personnel Board rules and Local Act 470, and laid off one (1) of 12 Painters, Plaintiff Weaver. (Id.; Doc. 58-1 at 3 (Decltn. Bryant)). On September 2, 2014, these employees were given 15 days notice, with an effective termination date of September 27, 2014. (Doc. 58-1 at 3 (Decltn. Bryant)).

C. Post-Employment

Following their termination, Plaintiffs filed a complaint under the Personnel Board's grievance procedure, claiming they had the right to assume lower class positions at the Housing Board in lieu of being laid-off (that they should have been "bumped back" per Personnel Board Rule XIII). (Doc. 52-1 at 5-6 (Decltn. Dees)). Their grievances were denied by the Housing Board, which found Rule XIII inapplicable because Plaintiffs were not promoted to their positions through a promotional test but through an "open competitive" process, and thus, did not have the right to a lower classified position in lieu of lay off. (Id. at 6, 8).

As a result, Plaintiffs initiated this action on September 26, 2014, alleging federal claims for violations of Fair Labor Standards Act, as amended, 29 U.S.C. § 201 et seq. (FLSA) (against the Housing Board), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (ADEA) (against the Housing Board), and state claims for violations of the Alabama Age Discrimination in Employment Act, Ala. Code § 25-1-20 et seq. (against the Housing Board), breach of contract (against both defendants), intentional misrepresentation/fraud (against both defendants), promissory fraud/false promise (against both defendants), promissory estoppel (against both defendants), and equitable estoppel (against both defendants). (Docs. 1, 6, 38, 69).⁴ See also Docs. 50, 57.

II. Standard of Review

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). Rule 56(c) provides as follows:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.

(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.

(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

FED.R.CIV.P. Rule 56(c).

Defendants, as the parties seeking summary judgment, bear the "initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11^th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the nonmoving party fails to make "a sufficient showing on an essential element of her case with respect to which she has the burden of proof," the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. "In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-999 (11^th Cir. 1992).

III. Sham Affidavits

Before turning to the substantive claims, the Court must address the Housing Board's contention that Plaintiffs' summary judgment Declarations are "sham affidavits"⁵ which directly contradict their prior sworn deposition testimony regarding management duties. (Doc. 80 at 5-15). The Housing Board adds that Plaintiffs' Declarations improperly include conclusions of law concerning management duties, invading the province of the court. (Id. at 16).

The Court has reviewed Plaintiffs' Declarations (Doc. 75-2 through 75-7) against the deposition testimony cited by the Housing Board (Doc. 80 at 6-15). The Court is not persuaded that Plaintiffs' Declarations constitute sham affidavits because the Declarations do not directly contradict the specific pages of deposition testimony cited. Instead, the Housing Board appears to base its argument on a unilateral interpretation of Plaintiffs' deposition...