Ex parte McCord-Baugh

• Decision Date: 02 April 2004
• Citation: 894 So.2d 679
• Parties: Ex parte Cathy McCORD-BAUGH. (In re: Cathy McCord-Baugh v. Birmingham City Board of Education et al.)
• Court: Alabama Supreme Court

894 So.2d 679

Ex parte Cathy McCORD-BAUGH.

(In re: Cathy McCord-Baugh v. Birmingham City Board of Education et al.)

1011067.

Supreme Court of Alabama.

April 2, 2004.

Sam Heldman of Gardner, Middlebrooks, Gibbons & Kittrell, Washington, D.C.; J. Cecil Gardner of Gardner, Middlebrooks, Gibbons & Kittrell, Mobile; and Frederick L. Fohrell and Robert C. Lockwood of Wilmer & Lee, P.A., Huntsville, for petitioner.

Kenneth L. Thomas, Valerie L. Acoff, James L. Richey, and Joi C. Scott of Thomas, Means, Gillis & Seay, P.C., Birmingham, for respondents.

JOHNSTONE, Justice.

The plaintiff-petitioner Cathy McCord-Baugh properly invoked our Rule 39(a)(1)(D), Ala. R.App. P., certiorari jurisdiction to determine whether the decision of the Court of Civil Appeals in her case, McCord-Baugh v. Birmingham City Board of Education, 894 So.2d 672 (Ala.Civ.App.2002), conflicts with the decision of the United States Supreme Court in Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). Accordingly, to review that one claim, we granted her petition for a writ of certiorari. Having reviewed the record and considered the law, we reverse and remand.

Procedural Facts

The plaintiff sued the Birmingham City Board of Education, the superintendent of education of the Birmingham City Schools, and the individual members of the Board of Education. The narrow scope of our certiorari review reaches only the plaintiff's claim, under 42 U.S.C. § 1983, that the defendants violated the plaintiff's right to the equal protection of the laws as guaranteed by the Fourteenth Amendment to the United States Constitution. She alleged that the defendants intentionally treated her differently from, by paying her less than, others similarly situated. She asserted that the dissimilar treatment of her — the continuing refusal to pay her equally — was arbitrary and capricious and was not rationally related to any legitimate governmental purpose.

The defendants moved for summary judgment on multiple grounds. As stated in the motion for summary judgment, the only ground pertinent to our review reads:

"Plaintiff's equal protection claim brought pursuant to the Fourteenth Amendment of the United States Constitution must fail as a matter of law because a public official cannot violate a Plaintiff's equal protection rights unless the Defendant has the intent to discriminate. Parks v. City of Warner Robbins, Georgia, 42[43] F.3d 609, 616 (11th Cir.1995); Mencer v. Hammond [Hammonds], 134 F.3d 1066, 1070 (11th Cir.1998). Plaintiff has not alleged or presented facts evidencing proof of the requisite intent to discriminate."

This ground asserts, in essence, that, in the absence of intent to discriminate, arbitrary and capricious differential treatment does not violate the Fourteenth Amendment. This ground does not deny that the defendants' treatment of the plaintiff was arbitrary, capricious, and not rationally related to any legitimate governmental purpose. The plaintiff responded, in pertinent part:

"Plaintiff's first cause of action is violation of her ... Federal equal protection rights caused by defendants' `irrational and wholly arbitrary' refusal to pay plaintiff the same as similarly situated Community School Coordinators. The facts are undisputed in this case that Plaintiff is paid less `a different salary arrangement' than other similarly situated community school coordinators and thus Plaintiff meets the prima facie case for violation of Federal . . . equal protection rights. Village of Willowbrook v. Olech, [528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000)] . . . ."

The trial court granted the defendants summary judgment on all of the plaintiff's claims. She appealed. Affirming the judgment of the trial court, the Court of Civil Appeals held, in pertinent part:

"To state an equal-protection claim, McCord-Baugh must have alleged and shown that she was (1) treated differently from similarly situated persons and (2) that the Board treated her differently for the purpose of discriminating against her on an impermissible basis. See GJR Investments, Inc. v. County of Escambia, Florida, 132 F.3d 1359, 1367 (11th Cir.1998)

; Strickland v. Alderman, 74 F.3d 260, 264-65 (11th Cir.1996); E & T Realty v. Strickland, 830 F.2d 1107, 1109, 1112-13 (11th Cir.1987). We will address the latter requirement.

"McCord-Baugh must show that any differential treatment she received from the Board was motivated by an intention to discriminate on an impermissible basis. E & T Realty, 830 F.2d at 1113. In other words, in order to satisfy the second requirement for an equal-protection claim and to prevail, a showing of intentional discrimination is required.

"A showing of unequal treatment of similarly situated persons does not establish an equal-protection claim, absent proof that the defendant acted with discriminatory intent. Id. Discriminatory impact, without more, does not violate the Equal Protection Clause. Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976).

"McCord-Baugh responds to the Board's argument in this regard merely by arguing that there is `record evidence that this unequal treatment — paying McCord-Baugh less than others who perform the same job — has been intentional on the part of defendants.' However, it is not the intent to do a given act that is required in order to satisfy the second element of an equal-protection claim; it is the intent to discriminate that is required. '"Discriminatory purpose" . . . implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker . . . selected . . . a particular course of action at least in part "because of," not merely "in spite of," its adverse effects upon an identifiable group.' Personnel Adm'r of Massachusetts v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979) (citation omitted; footnote omitted); see also Jones v. White, 992 F.2d 1548, 1573 (11th Cir.),

cert. denied, 510 U.S. 967, 114 S.Ct. 448, 126 L.Ed.2d 381 (1993).

"We do not find substantial evidence in the record of an intent by the defendants to discriminate against McCord-Baugh on the basis of her race, her gender, or any other impermissible ground. . . ."

McCord-Baugh, 894 So.2d at 675-76. These holdings are the only holdings in the opinion of the Court of Civil Appeals deciding adversely to the plaintiff an equal-protection issue raised by the defendants' motion for summary judgment. The Court of Civil Appeals further held, without a supporting ground in the defendants' motion for summary judgment, that the defendants had shown legitimate, nondiscriminatory reasons for their decision not to pay the plaintiff as a community-school coordinator.

Substantive Facts

In November 1989, the Board of Education hired the plaintiff as a "special-projects coordinator." She signed a one-year employment contract. The Board of Education continued employing her. In 1992, she became tenured. The same year, the Board of Education transferred her to Parker Community School to replace the "community-school coordinator" for Parker Community School. Since 1992, the plaintiff has performed the duties of a community-school coordinator. She supervises the same number of employees as any other community-school coordinator and prepares the same community educational program as any other community-school coordinator. Her service area is comparable to the other community-school coordinators' service areas.

The plaintiff's performance evaluations identify her position as a "Coordinator" in the division titled "Parker Community School." Before her transfer in 1992, an organizational chart showed 11 community-school coordinators. After her transfer to replace one of them, organizational charts continued to show 11 community-school coordinators.

The Birmingham Public Schools Directory identifies the plaintiff as the "Coordinator" at Parker Community School, precisely as it lists other community-school coordinators at their respective Community Schools. Likewise, a printout of employees for Parker Community School shows her as the "Coordinator" of that school.

In a 1994 letter to the senior assistant superintendent, personnel division, Dr. Peggy F. Sparks, then director of the Community Education Department of the Birmingham Public Schools, identified the plaintiff as "an eleven month special projects coordinator" and as "coordinator of Parker Community School." In a 1997 letter to Geraldine Bell, interim superintendent of the Board of Education, Clifton T. Griffin, acting director of the Community Education Department, stated that the plaintiff, a special projects coordinator, had a different salary arrangement than "regular Community School Coordinators."

In December 1998, the plaintiff wrote a "Personnel Specialist" with the Birmingham Public Schools a letter requesting a salary adjustment to be paid according to the salary schedule for a community-school coordinator. In March 1999, Dr. Sparks, then senior executive director of Parent, Community, and Student Support Programs, wrote the superintendent of the Birmingham Public Schools a letter stating that she had transferred the plaintiff "to a program assistant slot at Parker for Zone I, yet continued her same salary and job description."

In March 1999, Clifton T. Griffin, who was then the coordinator for the West End Community School, wrote Otis Dismukes, the acting director of the Community Education Department, a letter stating that, after he discussed the plaintiff's duties and pay with Mr. Dismukes and Dr. Sparks, "it is ascertained that there are no funds available in the budget for an increase in the salary of any employee, and . . . the only way she can be paid for a regular community education coordinator's salary is to apply for the position when one becomes available and is selected for the position." Shortly thereafter, the Board of Education approved a $17,644 per year pay raise for Dr....