Morgan v. City of Jasper, 91-7520
| Decision Date | 04 May 1992 |
| Docket Number | No. 91-7520,91-7520 |
| Citation | 959 F.2d 1542 |
| Parties | 58 Fair Empl.Prac.Cas. (BNA) 1406, 58 Empl. Prac. Dec. P 41,469 Mabel MORGAN, Plaintiff-Appellee, v. CITY OF JASPER, A Municipal Corporation, Tommy Knight, in his personal capacity and in his capacity as Director of the Parks and Recreation for the City of Jasper, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Robert E. Parsons and David A. Lee, Parsons, Lee & Juliano, P.C., Birmingham, Ala., for defendants-appellants.
Charles C. Tatum, Jr., Jasper, Ala., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Alabama.
Before KRAVITCH, Circuit Judge, GODBOLD and JOHNSON *, Senior Circuit Judges.
This is a Title VII case in which plaintiff, a black female, charged that the city of Jasper, Alabama discriminated against her in wage rate and discharged her in retaliation for her filing of a complaint with the Equal Employment Opportunity Commission. She sought money damages, a declaratory judgment, and an injunction. The city asserted that it had indefinitely suspended plaintiff because it discovered that she had falsified her application for employment with the city in a material respect relating to her reason for leaving prior employment.
The district court granted plaintiff relief in all respects. It entered a declaration that the city had violated her rights as guaranteed by Title VII and permanently enjoined the city from discriminating against employees in wage rates on account of race and from retaliating against black employees for filing complaints with the E.E.O.C. It granted plaintiff back pay for the amount it found she was underpaid for the two years before her suspension plus full lost wages from the time of her suspension to the time of her conviction for theft of city funds less interim earnings, a total of $48,358. The court also granted attorney fees of $12,273.20 plus out-of-pocket expenses.
Following is a chronology of events:
--March 18, 1985: Plaintiff hired as secretary for Parks and Recreation Department ["PRD"].
--October 1986: City discovered funds missing from PRD, where plaintiff was handling cash payments for use of recreational facilities. Method of handling cash changed but plaintiff continued to receive fees.
--September 1987: Plaintiff complained to her supervisor, Tommy Knight, regarding her wages. Knight informed the mayor and city council that historically all employees in PRD had been underpaid. He recommended that all be increased. No action was taken.
Plaintiff and Willie Moore, a black male assistant PRD supervisor, complained to the Jasper Civil Service Board that they were being discriminated against in their wages because of their race. Knight expressed dissatisfaction that they had "gone over his head." He told plaintiff that she should not "rock the boat" else her job might be eliminated.
--October 12, 1987: PRD discovered bookkeeping discrepancies and missing funds. Plaintiff was relieved of most of her duties and told not to accept any more fees for use of PRD facilities. Investigation begun by Police Department.
--Between October 12 and November 4, 1987: Knight was informed by a police officer that plaintiff had falsified her employment application with respect to the reason for her termination by K-Mart, a former employer.
--November 3, 1987: Plaintiff filed E.E.O.C. complaint of wage discrimination.
--November 5, 1987: Plaintiff was indefinitely suspended by Knight. The district court found that Knight knew she had filed an E.E.O.C. complaint at the time that he suspended her.
--December 4, 1987: Civil Service Board hearing regarding Morgan's suspension. Plaintiff was represented by counsel. Suspension upheld. A transcript of this hearing was admitted into evidence at trial.
--December 14, 1987: Plaintiff filed second E.E.O.C. complaint, asserting that her suspension was in retaliation for filing the first complaint.
--1988: Indictment of plaintiff on charge of first degree theft of city funds. This indictment later dismissed.
--September 21, 1989: E.E.O.C. considered both complaints filed by plaintiff and found no violation of Title VII. Issued plaintiff a right-to-sue letter.
--January 1990: Second indictment of plaintiff on charge of first degree theft of city funds.
--January 4, 1990: Plaintiff filed this suit against the city and Knight.
--September 30, 1990: Plaintiff found guilty of stealing money received for rental of PRD facilities, sentenced to five years, and ordered to pay restitution to city of $13,490.76.
--March 28, 1991: Bench trial in district court. Oral findings and conclusions from the bench. Knight dismissed as defendant. Judgment for plaintiff against remaining defendants.
--July 1, 1991: This appeal filed.
--July 26, 1991: Criminal conviction affirmed by Alabama Court of Criminal Appeals.
The wage claim
The district court's findings run this way. First it concluded that the beginning wage for a secretary with the city was more than the beginning wage for a clerk. The basis for this conclusion was that Hedy Hall was hired as a secretary at $377.50 biweekly at approximately the same time in 1983 that Anita Naramore was hired as a clerk at $352.80 biweekly. Both of these persons were white. Also, the payroll clerk for the city testified that secretaries for the city were normally paid more than clerks. Operating on the conclusion drawn from the above testimony--that a secretary's beginning wage should be more than that of a clerk--the court examined plaintiff's exhibit 2, a table prepared by the city payroll division, showing salaries of clerks and secretaries for the 1983-88 period. The court expressed dissatisfaction with this data but nevertheless, based upon it, held that plaintiff, hired in 1985 as a secretary, was paid less than clerks hired in 1985, when, according to the above conclusion, Morgan should have been paid a higher beginning salary than a newly hired clerk. Plaintiff's exhibit 2, however, shows no clerks hired in 1985. There were clerks in the city's work force in 1985 who earned more than plaintiff's starting salary, but none was hired in 1985. All had from one to six years' experience with the city by 1985. In short, the comparables between secretaries and clerks relied upon by the district court did not exist.
Nor was there any meaningful comparison of salaries as between secretaries. There was only one other secretary at the city when plaintiff was hired in 1985. The other secretary, Joy Wilson, a white female, earned a salary in 1985 higher than plaintiff's beginning rate. But she had been employed by the city since 1979 and was secretary to the mayor, in which position she had special duties and responsibilities. Plaintiff acknowledged that this secretary was not comparable to her.
Plaintiff's theory that she was underpaid as compared to white secretaries doing comparable work in 1985 is further undermined by the fact that she was hired at the same salary paid her white predecessor, Hedy Hall, who had been employed by the city since 1983 and had received regular raises.
Plaintiff testified that after she and Willie Moore, the assistant PRD supervisor, complained to the Civil Service Board about their wages, the Board investigated the charges and found that two white females, Anita Naramore and Tracey Jones, 1 took the city civil service test at the same time as plaintiff and scored lower than plaintiff but were hired as clerks at higher wages than Morgan received as a secretary. But plaintiff's exhibit 2 shows that Naramore had been hired in June 1983 at a wage rate substantially less than plaintiff's beginning salary of $435.69 biweekly. Tracey Drummond was listed on the 1986 payroll as a clerk hired in 1983, and Tracey Scott was listed on the 1985 payroll also as a clerk hired in 1983. Plaintiff was not hired until mid-1985. This attempt to show differing wage treatment fails.
A second finding said by the court to undergird its conclusion of wage discrimination was that Moore, the black assistant PRD supervisor, was paid less than assistant supervisors of other city departments. The evidence does not sustain this conclusion. The court itself asked Moore whether he believed other assistant supervisors were getting paid more than he was. Moore responded, The court next asked whether it was Moore's "perception that whites in similar positions as [his] in other departments [were] paid more than [he was]?" Moore answered in the affirmative. The court then said:
All right. Now I don't know whether this information is in evidence, but it will be, because I want to see what the assistant directors of the other departments of the city are paid. Is it going to be presented to me, Mr. Tatum [counsel for plaintiff]?
Counsel responded that testimony would be presented on this matter. It never was.
Furthermore, Moore gave conflicting testimony at trial as to whether any valid pay comparison between himself and other assistant supervisors could be conducted. Moore testified at one point that he was the only assistant department supervisor in Jasper. When defendants' counsel asked Moore, "Are there any other persons with the City of Jasper who have the title or classification of assistant director of a department?," Moore answered in the negative. Defendants' counsel reiterated, "So as far as you know, from the time you started up until the moment, you are the only assistant director of a department for the city?" Moore indicated that counsel was correct. However, when plaintiff's counsel later asked, "Are there assistant supervisors in other departments?," Moore responded that there were others back in 1987 who held the same or similar positions to his at PRD. There was no substantial evidence that assistant supervisors in other departments--if there were any--had duties comparable to those of Moore and therefore that...
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