AlaFile E-Notice

01-CV-2014-901437.00
Judge: DONALD E. BLANKENSHIP
To: HALL JOHN BRYANT
bryant@bryanthall.com

NOTICE OF ELECTRONIC FILING

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA
HARRINDA SMITH ET AL V. THE BIRMINGHAM CITY SCHOOL BOARD ET AL
01-CV-2014-901437.00
The following matter was FILED on 11/9/2015 4:27:44 PM
C001 SMITH HARRINDA
C002 STREET MARION
RESPONSE TO MOTION TO DISMISS PURSUANT TO RULE 12(B)
[Filer: GEAR GAYLE HAYWOOD]
Notice Date:

11/9/2015 4:27:44 PM

ANNE-MARIE ADAMS
CIRCUIT COURT CLERK
JEFFERSON COUNTY, ALABAMA
JEFFERSON COUNTY, ALABAMA
716 N. RICHARD ARRINGTON BLVD.
BIRMINGHAM, AL 35203
205-325-5355
anne-marie.adams@alacourt.gov

DOCUMENT 199
ELECTRONICALLY FILED
11/9/2015 4:27 PM
01-CV-2014-901437.00
CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMA
ANNE-MARIE ADAMS, CLERK

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 Boards duly enacted 2014 Classified Salary Schedule. It is without dispute that

DOCUMENT 199

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

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

DOCUMENT 199

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,
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).
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 Exhibit
12 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 Salary
Schedule. (Witherspoon Depo. at 56-57; Watts Depo. at 18, 22-23, 36, 45 & 54 and referenced
Exhibit 7).
3

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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

With the implementation of the 2014 Classified Salary Schedule, Plaintiff Smiths 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 Streets 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 that
corresponded to their respective years of experience. (McDaniels Depo. at 37-43, 44-45, 6062, 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 deposition
exhibit 11).
8
Of the Affiants, Brian Giattiana and Wardine Alexander were not on the Board in 2004, yet
they stated that they had personal knowledge of events that occurred on the Board in 2004. The
Board President did not offer an affidavit.
6

DOCUMENT 199

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 Boards current contention that the salary schedule was not going
to be honored as enacted. (Volker Depo. at 29-30). The Birmingham Boards 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 Boards CFO (Arthur Watts) made his presentation to the
Birmingham Board concerning the 2014 Classified Salary Schedule, she was not informed that

DOCUMENT 199

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 the
subject of a promotion.
6

DOCUMENT 199

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 public
education experience outside the state. It is the responsibility of the employee to submit
the appropriate information pertaining to experience, degree/certification and to verify
the 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

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).
11
Conversion was not an issue raised by the Birmingham Board. The complaint was based on
senior Child Nutrition Program Managers only being given credit for certain years of experience
where as newly hired or newly promoted managers were given full credit for all years of
10

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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 is
attached.
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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

DOCUMENT 199

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

10

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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 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 16, 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 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 for
their 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, 3031, 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

12

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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 Smiths 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 Streets 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

13

DOCUMENT 199

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;

14

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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 Boards 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. Gear
Gayle H. Gear, Esq.
s/ J. Bryant Hall
J. Bryant Hall
The Law Offices of Gayle H. Gear
2229 Morris Avenue
Birmingham, AL 35203
CERTIFICATE OF SERVICE
I hereby certify that on November 9, 2015, I electronically filed the foregoing with the
Clerk of the Court using the AlaFile system, or by United States Postal Service to the following:
Afrika Parchman
General Counsel,
Birmingham Board of Education
2015 Park Place
Birmingham, AL 35203
Claire Puckett
Carl Johnson
Bishop, Colvin, Johnson, & Kent, LLC
1910 1st Avenue North
Birmingham, AL 35203
s/Gayle H. Gear
Gayle H Gear, Esq.
s/J. Bryant Hall
J. Bryant Hall, Esq.

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ELECTRONICALLY FILED
11/9/2015 4:27 PM
01-CV-2014-901437.00
CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMA
ANNE-MARIE ADAMS, CLERK

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