IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

KEITH LAWSON, )

)

PLAINTIFF, )

)

V. ) CASE NO.: 03:06-CV-641-WKW

)

CITY OF ALEXANDER CITY, )

MAYOR BARBARA H. YOUNG AND )

DANNY PEPPERS in their individual )

capacities, )

)

DEFENDANTS.

MEMORANDUM BRIEF IN SUPPORT OF MOTION FOR SUMMARY 

JUDGMENT ON BEHALF OF DEFENDANTS

COME NOW the Defendants City of Alexander City , Mayor Barbara H. Young and Danny

Peppers (hereinafter known as “Defendants”) in the above-styled cause and submits the following

memorandum brief and evidentiary materials in support of their motion for summary judgment.

I.

Summary of Plaintiff’s Allegations and the 

Defendants’ Affirmative Defenses

Plaintiff Keith Lawson (“Lawson”), a black male, alleges that Defendants terminated him

because of his race. Lawson brings the race claim pursuant to Title VII, §1981 and §1983.

This lawsuit was filed on July 19, 2006. The Defendants filed an answer on August 22,

2006. Defendants now seek summary judgment based on the premise that Lawson was

terminated for a legitimate, non-discriminatory reason and that there is no evidence of pretext such

that a question of fact exists as to a race discrimination claim.

Case 3:06-cv-00641-WKW-TFM Document 16 Filed 07/30/2007 Page 1 of 36
 For purposes of clarity this statement of material and undisputed facts includes factual allegations

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of Lawson, which may not be relevant or actual facts. Rather, this is a statement of “facts” for purposes of

summary judgment. See Cox v. Administrator, U.S. Steel and Carnagie Pension Fund, 17 F.3d. 1386,1400

(11th Cir. 1994). This statement may also contain statements of the absence of critical needed facts, for

purposes of clarifying the issues.

2

II.

Summary of Undisputed Facts1

A. The Parties

1. Keith Lawson

Keith Lawson is a 36 year old black male who resided in Alexander City during the relevant

time period. (See Exhibit “A” Deposition of Keith Lawson p. 7 at lines 2-6, p. 9 at line 19 to p. 10

at line 4). Lawson worked for Alexander City from approximately June 2004 to December 8, 2005.

(Lawson Depo. p. 59 at line 3-5; See Exhibit “B” Affidavit of Mayor Barbara Young at ¶ 11).

Lawson worked as a meter reader for the City from August 10, 2005 to December 8, 2005. (Young

Aff. at ¶¶9,11).

Because of an issue regarding disclosure of information on his application for employment,

Lawson’s criminal record is relevant and described by him as follows:

Lawson was convicted in Georgia for possession with intent to distribute cocaine. (Lawson

Depo. p. 68 at lines 6-14). He served a year in prison. (Lawson Depo. p. 68 at lines 20-22).

Lawson was also charged in Georgia for theft by taking and placed on probation which lasted until

he was sentenced to prison on the other charge. (Lawson Depo. p. 70 at line 19 to p. 71 at line

8). Lawson also had a drug conviction in Alabama in 1991 for cocaine use. (Lawson Depo. p. 72

at lines 7-22). He served three years probation. (Lawson Depo. p. 73 at lines 2-8). Lawson was

convicted of a charge regarding a forged document in Alabama in 1995. (Lawson Depo. p. 74 at

lines 8-15). He served eighteen months in an Alabama state penitentiary. (Lawson Depo. p. 74

at line 23 to p. 75 at line 4). Lawson was found guilty of a drug possession charge in Alabama in

2002 and served a year in a rehabilitation facility in Mobile, Alabama. (Lawson Depo. p. 76 at lines

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5-14). When asked if there were other convictions in Alabama that he had not yet described,

Lawson said that he had been arrested several times for speeding, eluding the police, driving while

his license was revoked, theft, burglary, domestic violence, public intoxication, and disorderly

conduct. (Lawson Depo. p. 77 at lines 3-23). He has served time in the Alex City jail for this

conduct. (Id.) He explained that his domestic violence charges were brought by different women.

(Lawson Depo. p. 79 at line 8 to p. 80 at line 8).

Lawson was arrested in December 2006 in Louisiana. (Lawson Depo. p. 84 at lines 11-16).

He was arrested for possession of intent to distribute marijuana. (Lawson Depo. p. 84 at line 21

to p. 85 at line 1). The matter is still pending.

2. The City of Alexander City, Mayor Young and Danny Peppers

The City of Alexander City (“the City” or “Alex City”) is a municipal entity located in

Tallapoosa County, Alabama. Defendant Barbara Young has been the Mayor of Alex City since

October 2004. (Young Aff. at ¶2). The Mayor prior to Ms. Young was Don McClellan. (Young Aff.

at ¶2). Defendant Danny Peppers has worked for Alex City for thirty-two years. (See Exhibit “C”

Affidavit of Danny Peppers at ¶2). Mr. Peppers has worked in the Meter Reading Department for

almost thirty years and serves as a department head. (Peppers Aff. at ¶2). As part of his job

responsibilities, Mr. Peppers supervises all of the meter readers. (Peppers Aff. at ¶3). Jason

Locke is the Revenue Officer for Alex City. (See Exhibit “D” Affidavit of Jason Locke at ¶2). As

part of his job responsibilities, Mr. Locke rectifies any billing issues regarding utility usage in Alex

City which can occur from incorrect or estimated meter readings. (Locke Aff. at ¶2). Eugene

Mahan is the Superintendent of Water Treatment for Alex City. (See Exhibit “E” Affidavit of Eugene

Mahan at ¶2). Mr. Mahan has worked for the Alex City for twenty-eight years. (Mahan Aff. at ¶2).

Case 3:06-cv-00641-WKW-TFM Document 16 Filed 07/30/2007 Page 3 of 36
 During his deposition, Lawson marked various aspects of the Lee Staffing application wherein he 2

alleges that he did not write the information as indicated. He explains the differences in his deposition.

(Lawson Depo. p. 97 at line 19 to p. 99 at line 23).

4

B. Lawson’s Employment History With The City

1. The Lee Staffing Application

Lawson executed an application for employment with the employment agency, Lee Staffing,

Inc. on March 29, 2004. (Lawson Depo. p. 52 at lines 11-14; Exhibit “F” Copy of 2004 Lee Staffing

Application). When Lawson first went to Lee Staffing looking for a job with the City, he was told

he could not have a job with the City because he did not have a valid driver’s license. (Lawson

Depo. p. 87 at line 5 to p. 88 at line 22). Lawson claims that when asked, on the application, if he

had been convicted of a felony, he did not check anything. (Lawson Depo. p. 92 at line 21 to p.

93 at line 1). He says he left it blank. (Lawson Depo. p. 92 at line 21 to p. 93 at line 10). The

application on record indicated “No” as answer to the felony conviction question. (See Application).

Lawson said that when he was terminated from the City (discussed more fully below), he

was told that he would never have been hired if they had known he had been convicted of a felony.

(Lawson Depo. p. 95 at lines 13-16). Thereafter, Lawson went back to Lee Staffing and got a copy

of his application wherein he claims the question regarding felony conviction was still blank at that

time. (Lawson Depo. p. 95 at lines 6-18, p. 97 at lines 6-22). This is the only application ever 2

filled out by Lawson with Lee Staffing. (Lawson Depo. p. 87 at line 21 to p. 90 at line 20).

2. The Water Filter Plant

Lawson claims he did not find a job through Lee Staffing, but he spoke to then Mayor

McClellan who hired him at the treatment plant sometime in June 2004. (Lawson Depo. p. 56 at

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After speaking with Mayor McClellan, Lawson says he later got a phone call from the Mayor telling

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him to go to Lee Staffing where he received an interview slip for the City. (Lawson Depo. p. 107 at line 18 to

p. 108 at line 13).

5

line 14 to p. 59 at line 5). Lawson worked at the treatment plant as of June 2004 but did so

3

through Lee Staffing, not as a City employee. (Lawson Depo. p. 58 at lines 13 to 18).

Lawson claims that Mayor McClellan knew of his prior felony convictions and arrest record,

but was trying to give him a chance. (Lawson Depo. p. 57 at lines 6-21). The supervisor, Mr.

Mahan, was the only person Lawson interviewed with before he took the job at the treatment plant.

(Lawson Depo. p. 110 at lines 6-9). Lawson worked at the treatment plant through Lee Staffing

as a temporary filter operator until he was hired by the City on December 20, 2004 in a full-time

permanent position. (Lawson Depo. p. 58 at lines 11-18, p. 109 at lines 15-22). Lawson claims

that when he was working with Mr. Mahan (presumably while employed with Lee Staffing), they

became very close and that Mr. Mahan explained to him it would be very difficult to get a job with

the City because of Lawson’s drug arrests and his trouble with the police. (Lawson Depo. p. 115

at lines 1-13).

On December 20 a slot came open for a full-time position with the plant and Lawson talked th

with the new Mayor, Barbara Young. (Lawson Depo. p. 110 at line 2 to p. 111 at line 5). Lawson

obtained his driver’s license before he talked to Mayor Young about the job. (Lawson Depo. p. 111

at lines 17-23). Lawson claims he told Mayor Young about his previous felony conviction during

this conversation. (Lawson Depo. p. 114 at lines 10-19). Lawson claims that when he told the

Mayor about his past, she said, “everybody makes mistakes and everybody ought to have a second

chance and she said she would be willing to work with me and give me an opportunity.” (Lawson

Depo. p. 115 at lines 17-20). Lawson says he explained to the Mayor that he had changed his life.

(Lawson Depo. p. 115 at lines 21-23). Mayor Young unequivocally denies any knowledge of

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Lawson’s prior felony convictions and insists that he would not have been hired by the City if she

had had such knowledge. (Young Aff. at ¶ 13). 

Lawson was ultimately hired in a full-time position as a water filter operator trainee Grade

4 with the City. (Lawson Depo. p. 116 at lines 19-21). When he was hired by the City he was given

a stipulation that he had to obtain a Grade 4 certification within a fifteen month period. (Id.)

Lawson claims he took the class to prepare for the Grade 4 test and then took the exam. (Lawson

Depo. p. 117 at lines 2-11). The City provided Lawson an opportunity to study for the Certified

Operator Test. (Lawson Depo. p. 132 at lines 14-17). The City paid to send Lawson to school to

study for the exam. (Lawson Depo. p. 132 at line 18 to p. 133 at line 15). However, Lawson failed

the exam. (Lawson Depo. p. 117 at lines 2-11). When Lawson’s six month probationary period

was scheduled to end, his supervisor, Mr. Mahan, wanted his six month probationary period

extended because of his lack of effort regarding obtaining the certification. (Young Aff. at ¶6).

However, Mayor Young refused Mr. Mahan’s request and granted Lawson full employment status

with a raise at the end of his six month probationary period. (Id.) Mr. Mahan explained that

Lawson told him that he was going to class to prepare for the certification exam. (Mahan Aff. at

¶7). However, Mr. Mahan found out Lawson had, in fact, not gone to most of the classes and at

some point quit going altogether. (Id.) Mr. Mahan talked to Lawson about it and Lawson asked

Mr. Mahan if Lawson should quit. (Id.) Mr. Mahan said that Lawson had issues with the swing shift

and had simply stopped all efforts to obtain certification. (Id.) Mr. Mahan encouraged Lawson to

transfer to a job that better suited Lawson’s schedule. (Id.) Lawson claims that the City was going

to extend his probation so that he could receive the Grade 4 certification but instead ended his

probation and transferred him to a job as a meter reader. (Lawson Depo. p. 119 at line 12 to p.

120 at line 13). He concedes receiving the six months raise. (Lawson Depo. p. 120 at lines 11-13).

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3. Meter Reader Department

After ending his probationary period and receiving the raise in August 2005, Lawson

transferred to the meter reader department after interviewing with Danny Peppers. (Lawson Depo.

p. 138 at line 20 to p. 139 at line 18). Mr. Mahan recommended Lawson for the meter reader

position. (Mahan Aff. at ¶8; Peppers Aff. at ¶3). Danny Peppers, the supervisor of the meter

readers, confirms that he talked to Lawson when Lawson applied for the transfer. Peppers said

he and the Mayor discussed the need for Lawson to move into another position and decided to give

him a try. (Peppers Aff. at ¶3). Mayor Young explained she was making every effort to help

Lawson keep a job with the City, therefore she talked to Peppers about giving Lawson a chance

in the Meter Reading Department. (Young Aff. at ¶8). Peppers had no knowledge whatsoever of

Lawson’s prior felony convictions. (Peppers Aff. at ¶3).

On Lawson’s first day as a meter reader, Peppers assigned him to train under Chad Walker.

(Lawson Depo. p. 142 at lines 2-8; Peppers Aff. at ¶4). Lawson described his training as Walker

showing him how to use the computer printouts to keep a record of the meters that were read on

gas, electricity and water. (Lawson Depo. p. 142 at lines 14-17). Lawson said the main part of the

training was learning how to locate the water meter. (Lawson Depo. p. 143 at lines 2-8). Every

meter reader had a specific area where they were programmed to go. (Lawson Depo. p. 143 at

lines 11-13). Lawson became a meter reader for the route where he was trained by Walker.

(Lawson Depo. p. 144 at line 4 to 11). Lawson states unequivocally that he was taught to not

estimate meters. (Lawson Depo. p. 146 at lines 10-14). After working for ninety days with Walker,

Lawson felt qualified and trained to go on his own. (Lawson Depo. p. 146 at line 18 to p. 147 at

line 4). In fact, Lawson said he was pulled off of the ninety-day probation a little early because

Peppers felt like he could go on his own. (Lawson Depo. p. 147 at lines 8-10). According to

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 To the extent it becomes relevant later, it should be pointed out that another meter reader, Dax

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Thomas, also allegedly rode with Lawson during this time. At all times Lawson was in charge of the hand-held

computer for the entries of the meter readings. (Lawson Depo. p. 159 at line 10 to p. 160 at line 6).

8

Lawson, he was handling the route by himself by the end of October 2005. (Lawson Depo. p. 147

at lines 11-13).

Monday through Friday, Lawson would report to work, pick up from where he left off on his

route the day before and continue to read meters. (Lawson Depo. p. 148 at line 7 to p. 149 at line

2).

Lawson began to train Christy Williams regarding his route in early December 2005.

(Lawson Depo. p. 149 at lines 14-18). Lawson stayed in charge of the hand-held computer where

the readings were entered while training Williams. (Lawson Depo. p. 155 at lines 17-21; p. 156 at

lines 14-16). At one point Lawson said that Williams knew what she was doing and they worked

pretty fast together. (Lawson Depo. p. 157 at lines 8-20). Lawson also said that during the time

that he and Williams rode together, she never made complaints to him about how he read meters,

but quickly Lawson changed his attitude toward Williams and described her as a lazy person who

did not really get out of the truck that much. (Lawson Depo. p. 158 at line 13 to p. 159 at line 6).4

Several days into training Williams, on December 8, 2005, Lawson was terminated for

estimating meters instead of reading them. (Lawson Depo. p. 149 at lines 14-18; Peppers Aff. at

¶8; Young Aff. at ¶¶ 10 and 11).

C. The Termination

Lawson said that after three or four days of riding with Williams, they were in the Lincoln

Heights neighborhood in Alex City when Peppers radioed them to come in for a meeting. (Lawson

Depo. p. 157 at line 21 to p. 158 at line 3). Lawson said that, even though he did not know at the

time, he now knows that Williams accused him of estimating meters. (Lawson Depo. p. 161 at line

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20 to p. 162 at line 8). He does not know why she reported that he was estimating. (Lawson Depo.

p. 162 at line 21 to p. 163 at line 2). 

On or about December 8, 2005, Peppers was informed that Lawson was estimating meters

instead of actually reading them. (Peppers Aff. at. ¶5). Based on this information, Peppers

examined computer printouts looking specifically for times of meter reading entries. (Peppers Aff.

at ¶6). He found that there was no way that Lawson was actually reading the meters in the time

frame that was being entered into the computer. (Peppers Aff. at ¶6). As example, Peppers noted

the fact that Lawson was registering water meters in the computer that were scattered out in a

neighborhood as if he had read ten to fifteen meters in one minute. (Peppers Aff. at ¶6). Peppers

testified that it was impossible for Lawson to have made a physical reading of the meters and

entered those readings in the time frame indicated. (Id.) Peppers further provided that in addition

he had evidence that Lawson did not actually read the meters because some of the houses did not

fall in line in regards to how their account numbers were in the computer. (Peppers Aff. at ¶6).

However, Lawson had entered the information as if the houses were physically located beside one

another and as if he had walked to each one of them, one beside the other. (Peppers Aff. at ¶6).

Peppers explained that such was impossible given their actual locations on the route. (Peppers

Aff. at ¶6). Peppers took the investigation further and personally examined some of the meters on

Lawson’s route (Id.) Several of the water meter lids that were on the route that were supposedly

read in the last forty-eight hours or so were covered with debris, not appearing in the manner

expected had the meters been read recently. (Id.) Lastly, Peppers found that several of the meters

checked had readings entered in the computer that were higher than what the meter was reading

with Peppers checked it. (Id.) Based on this information, Peppers took the information to the

Mayor and recommended the termination of Lawson. (Peppers Aff. at ¶7). The Mayor agreed and

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had a meeting with Lawson and Peppers wherein she informed Lawson he was terminated.

(Peppers Aff. at ¶¶7-8; Young Aff. at ¶¶10-11).

Lawson describes the day of his termination as follows:

A. The day I was fired, December 8 , they didn’t present me with any

th

information on anything I requested. They said they had a witness,

he said he had proof, and they would never bring anything up. They

said they didn’t have to answer me. That’s what was said. I was

fired, my service was no longer needed at the City. And the

supervisor kept saying that he got proof, and I was sitting there

asking what kind of proof you can bring, you know, to the table, and

he was like he didn’t have to. And I even asked the Mayor do you

think it is feasible to bring the witness in here if you are accusing me

of taking these actions, and she said they don’t have to prove

anything - - it was because I was on probation. 

(Lawson Depo. p. 164 at lines 7-22).

When asked what he said when told that he was being terminated for estimating meters,

Lawson testified as follows:

A. I told him how can he prove that? I said, you ain’t seen me

estimating meters. He said - - he kept sucking on his teeth - - he do

some kind of way - - telling me, I know, I know, I know. And I said,

well if you know let’s go see the Mayor - - and we came on up. I

said I didn’t want to talk about it anymore.

Q. So he never told you how he knew.

A. No sir, he did not.

Q. And when you got to the Mayor, was it the three of you in there?

A. Yes, sir.

Q. What happened in the Mayor’s office?

A. I sit down on the chair and she had her back turned and she was

talking to me and she never did turn around. And she was saying

well, Danny has informed me that you have been estimating meters

and you are terminated, your service is no longer. I said just like

that? And she said, yeah, just like that. I said you are not going to

reprimand me or I’ve never been wrote up, or anything like that, you

are just going to fire me? And she said, well, Danny been working

for the City for 30 years and he know what he’s doing. So I said,

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well, I don’t feel like I’m treated right. And she said - - and I said if

I’m the only meter reader that is reprimanded today or terminated,

that I was going to get me a lawyer and I was going to sue them.

And she turned around and told me, sue me on what grounds? And

I said racial discrimination - - because I was the only meter reader

brought to the office that day, and the only one reprimanded, and the

only one fired. ...

(Lawson Depo. p. 172 at line 10 to p. 173 at line 23).

Lawson denies that he ever estimated reading meters. (Lawson Depo. p. 160 at lines 22-

23, p. 161 at lines 9-10). Lawson says that there has never been a complaint about him reading

meters incorrectly. (Lawson Depo. p. 170 at lines 18-22). 

D. After the Termination

The issues discussed by Lawson occurring after his termination are as follows:

1. Grievance Procedure Letter

Lawson testified that at the time of his termination he asked for a grievance form and he

was denied that form based on the assumption that he was a probationary employee. (Lawson

Depo. p. 179 at line 5 to p. 180 at line 15). However, Lawson was called back to the Mayor’s office

the next day so that she could give him a letter and in that meeting she told him that she had made

a mistake, that he did have a right to file a grievance form. (Id.) She also told him that she would

reconsider her decision as part of the grievance process. (Id.) Lawson refused to take the letter

from the Mayor. (Id.,Lawson Depo. p. 180 at lines 17 to p. 181 at line 3).

Lawson provides convoluted information regarding Mayor Young making a mistake,

seemingly in an attempt to insinuate that Mayor Young said she made a mistake regarding the

termination. However, when questioned further, Lawson said: “I don’t know what she means - -

she made a mistake, that’s what she said.” (Lawson Depo. p. 186 at lines 10-18). Mayor Young

clarifies that she in fact told Lawson she made a mistake about whether he had a right to file a

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 Mayor Young explains that because Lawson was on probation in the meter reading department, she 5

mistakenly believed he did not have grievance procedure rights. (Young Aff. at ¶ 11). W hen she realized she

was wrong, she contacted Lawson immediately and attempted to deliver the proper information to him about

filing a grievance. (Id). 

Mayor Young denies that she has any recollection or any record of ever speaking with Lawson after

6

the meeting on December 9, 2005 when he would not take the grievance procedure letter. (Young Aff. at

¶12).

12

grievance and attempted to give him a letter explaining his rights. (Young Aff. at ¶11) . Critically, 5

Lawson refused to take the letter. (Lawson Depo. p. 181 at lines 1-14; Young Aff. at ¶11). 

Lawson then claims approximately a week after the termination he requested to see the

Mayor. (Lawson Depo. p. 187 at line 1 to p. 188 at line 22). According to Lawson, it was during

the course of this meeting that Mayor Young allegedly said she made a mistake, but again, Lawson

clarifies that the Mayor told Lawson she would reconsider the termination pursuant to the grievance

procedure if he would take the grievance procedure letter. (Id.) Lawson testifies: 6

Q. Well, if she told you she was going to reconsider it and she made a

mistake, why didn’t you take the letter?

A. Because I told her - - 

Q. You didn’t do it because that conversation never took place did it,

Mr. Lawson?

Object to form

Q. You would have taken that letter - - 

A. Job first - - I told her job first - -

Q. * * * You would have taken that letter if she had told you I made a

mistake, I’m reconsidering, here’s this grievance form - - you would

have taken that letter, wouldn’t you?

Object to form

A. Rephrase that.

Q. There is nothing to rephrase. If she told you I made a mistake and

I’m reconsidering, here’s a grievance form for you, you didn’t take it?

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That’s all I want to know. That’s your sworn testimony: you didn’t

take it?

A. I did not take that letter.

(Lawson Depo. p. 188 at line 23 to p. 189 at line 4).

Lawson described this last meeting with the Mayor in a somewhat confusing matter but

ultimately clarified that the Mayor said she would reconsider the termination if Lawson pursued the

grievance procedure but that she was not going to simply give him his job back. (Lawson Depo.

p. 191 at line 5 to p. 192 at line 2, p. 193 at line 4 to p. 194 at line 20).

2. Information Gathered After Termination

Lawson also claims that the City tried to “cover their tracks” by gathering information after

the fact. (Lawson Depo. p. 195 at line 19 to p. 196 at line 10, p. 197 at lines 7-17). He bases this

information on hearsay that the City was gathering information after he left. Lawson refers to

Jason Locke, the City’s Revenue Officer. (Lawson Depo. p. 195 at lines 19-21). Jason Locke was

requested to pull all information from Lawson’s meter reading cycles after the City found out

Lawson was estimating meter readings so that any bills that had been issued incorrectly could be

rectified. (Young Aff. at ¶16; Locke Aff. at ¶3). Bill collections or adjustments were part of Locke’s

job. (Locke Aff. at ¶2). In fact, to that end, Locke clarifies that when he began working on the

issue, it was easily demonstrated that Lawson had been estimating meters because of the extreme

inconsistencies and the number of wrong readings. (Locke Aff. at ¶3).

3. Contact with Co-workers

Lawson said he saw Christy Williams at the Diary Cream in Alex City and that he walked

up to her and asked her if she was still getting people fired. (Lawson Depo. p. 221 at lines 6-20).

When questioned about why he would say that when he claims to not have known that she told he

was estimating meters, Lawson claims that he did not know but just said that to tease her.

(Lawson Depo. p. 222 at lines 15-19, p. 224 at lines 3-6). After that conversation, Lawson learned

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 It is critical to note that Lawson provides this testimony which conflicts with his earlier deposition

7

testimony that everyone knew about his criminal convictions before he was hired. Lawson also says that he

did not know of anyone else who had been fired for estimating meters and therefore he believed his

termination was race discrimination. (Lawson Depo. p. 176 at lines 14-20).

14

that Williams had a warrant for harassment issued against Lawson. (Lawson Depo. p. 224 at lines

3-21, p. 165 at lines 19-21;Exhibit “G” Copy of Williams’ Police Report Regarding Lawson). Lawson

also spoke with Dax Thomas, a black male and former co-worker, after his termination. (Lawson

Depo. p. 207 at lines 1-23). Thomas also filed a police report for harassment against Lawson.

(Exhibit “H” Thomas’ Police Report).

E. Lawson’s Allegations of Race Discrimination

1. The Termination

Lawson claims his termination was based on his race because (1) he was the only black

meter reader and “they” were prejudiced, (2) the City found out he had prior felony convictions, and

(3) white employees were not terminated. 

a. Only Black Meter Reader and Prior Felony Conviction

Lawson says the reason he thinks he was terminated because of racial discrimination was

because he was the only black meter reader in the department, and because Peppers “kind of act

prejudice to me anyway.” (Lawson Depo. p. 174 at line 20 to p. 175 at line 4). It is undisputed that

he was not the only black meter reader because Dax Thomas is also a black male.

In further support of his rationale as to why his termination was race discrimination, Lawson

says:

A. they didn’t want me reading meters anyway after they found out the

simple fact that I had prior conviction anyway.

(Lawson Depo. p. 175 at lines 8-10).7

Lawson was again asked why he thought he was fired and he stated: “Because I was a

black employee, and they found out I had prior convictions, and they didn’t want me reading

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meters, they didn’t want anybody black down there.” (Lawson Depo. p. 199 at line 18 to p. 200 at

line 1). When asked if he would have been terminated if he was black but did not have prior

convictions, Lawson said “I don’t know.” (Lawson Depo. p. 200 at lines 6-10).

Lawson’s testimony about the knowledge of his criminal record simply does not make sense

based on the fact that he continually went back to the notion that they terminated him wrongfully

when they found out he had prior criminal convictions. (See e.g. Lawson Depo. p. 199 at lines 21-

22). Lawson said he did not know whether a meter reader could have criminal convictions.

(Lawson Depo. p. 201 at lines 6-14). Lawson confirmed that he did not know another meter reader

that had a criminal record. (Lawson Depo. p. 201 at lines 15-21). When asked if there was any

other employee the City had ever agreed to hire that had a criminal record similar to Lawson’s, he

said he did not know of any. (Lawson Depo. p. 123 at lines 2-8). 

Lawson testified as follows:

Q. If you were estimating meters instead of reading them and telling

people you were reading them when you weren’t, wouldn’t that be

grounds to fire you?

Object form

A. I don’t know.

Q. Why don’t you know?

A. I had never seen anything in a rule book say that you’ll be fired from

that even if you was doing, but I was not estimating meters. ...

Q. If somebody was estimating and telling everybody he was reading

them when they wasn’t, they were estimating, wouldn’t that be

grounds to terminate somebody?

Object to form

A. I don’t know.

(Lawson Depo. p. 209 at line 14 to p. 210 at line 12).

Case 3:06-cv-00641-WKW-TFM Document 16 Filed 07/30/2007 Page 15 of 36
16

When Lawson was asked why the City would have fired him because they did not want

black meter readers when he was hired to do just that, he said he did not know. (Lawson Depo.

p. 213 at lines 7-11). 

b. Alleged Comparators - The Fall Meeting With The Mayor

Lawson further claims that his race discrimination claim is based on the fact that two white

employees, Danny Voss and Mike Blanks, had problems with their meter readings and were not

fired. (Lawson Depo. p. 237 at line 5 to p. 238 at line 8). More specifically, Lawson explained that

prior to the date of his termination, the Mayor came down to discuss the problem of incorrect meter

readings. (Lawson Depo. p. 166 at line 17 to p. 167 at line 3). Peppers clarifies that this meeting

occurred during Lawson’s training with Walker. (Peppers Aff. at ¶9). Lawson said there were

never any other meetings about the meter readings until the day of his termination. (Lawson Depo.

p. 166 at line 17 to p. 168 at line 5). 

When the Mayor had her meeting with the meter readers in the Fall, she said she wanted

things to tighten up because there was a large number of complaints about incorrect readings.

(Lawson Depo. p. 168 at lines 8-18). Lawson said the meter readers who had an issue were “two

white guys,” not him. (Id.) Critically, Lawson admits that the complaint at the time was that the

meters were being read incorrectly, not that the meters were not being read. (Lawson Depo. p. 168

at lines 19-23). 

Peppers confirms that there was a meeting with the Mayor because of several mistakes

found. (Peppers Aff. at ¶10). He clarifies however, there were several new employees and Mayor

Young felt like it would be a good idea to talk to them about the mistakes and being more careful.

(Id.) Peppers states no one ever informed him and that there was no knowledge that meter

readers were intentionally not reading meters and simply estimating meters before he learned that

Lawson was doing so; that is, no such report lead to that meeting with the Mayor. (Id.) Peppers

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17

explains that meter readers can make a mistake and that the meeting was held because there were

too many mistakes. (Id.) Peppers also explained that the Mayor brought several examples of

wrong readings to the meeting and that Lawson did not have any but that such was the case

because Lawson was still training under Chad Walker and would not have had any meter readings

recorded under his name at that time. (Id.) Mayor Young explained that although she had some

complaints about incorrect readings, when looking into the matter, they found no consistent

patterns of extreme discrepancies or any other indications that any meter readers were simply

estimating meters. (Young Aff. at ¶15). Peppers describes in detail the evidence found to confirm

that Lawson was estimating meters, before Lawson’s termination. (Peppers Aff. at ¶ 6).

Mayor Young has terminated another employee, a white male, for estimating meters, just

as she terminated Lawson. (Young Aff. at ¶ 14). 

 As comparative evidence, critically, Lawson testified as follows:

Q. Who else do you know that estimated meters?

A. I don’t know about anybody estimating - - for wrong meter reading.

That’s what I did - - read them wrong - - but I didn’t estimate any

meters.

Q. My question is: Do you know of anybody at the City - - any other

meter reader - - that estimated meters?

Object to form

A. I don’t know of any meter reader been accused of estimating meters.

Q. Well, do you know of any that actually estimated rather than reading

them?

A. No sir, I don’t.

(Lawson Depo. p. 176 at line 21 to p. 177 at line 14).

Lawson is certain that the City has no evidence that he was estimating meters and he bases

this on the following explanation: 

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18

A. Because the printout, it don’t show that you are estimating meters by

a printout. You can’t base an employ[ee] performance on a printout

sheet.

(Lawson Depo. p. 243 at line 15 to p. 244 at line 1).

c. Young and Peppers

Lawson does not know why he thinks Mayor Young would racially discriminate against him.

(Lawson Depo. p. 265 at lines 12-22). He has never had any problems or disagreements with her.

(Lawson Depo. p. 265 at line 23 to p. 266 at line 5). When asked then why he claims racial

discrimination against her, he stated:

A. I claim she racially discriminated with me because no other

employee, the white employee had misconduct in the department

and neither one was reprimanded, nobody was fired - - I was the

only one brought to the Mayor’s office. By being a black employee

I felt like she racially discriminated with me, she didn’t want to sit

down and talk about what the matter was, it was just like I was fired.

(Lawson Depo. p. 266 at lines 8-16). Lawson then claimed at the end of his deposition that Mayor

Young said “as much as she had did for us people.” (Lawson Depo. p. 267 at lines 1-10). He then

clarified that he said “as much as she did for you people, your mother and your father and your

uncle, Terry, used to stay with us when he was a little boy, and I can’t believe you are bringing up

these kind of allegations against us.” (Lawson Depo. p. 267 at lines 20 to p. 268 at line 1). Lawson

then admitted that he did not know whether she was referring to him as a black person when she

said “you people.” (Lawson Depo. p. 268 at lines 2-11). 

Mayor Young testified that that she “would have never terminated Mr. Lawson based on his

race.” (Young Aff. at ¶17). She explains that she “hired him and was responsible for finding him

a transfer position when he risked losing his job because of his own failed efforts toward obtaining

a state required certification.” (Young Aff. at ¶ 17). 

Lawson further said that he thinks Peppers discriminated against him because of accusing

him of doing something he did not do. (Lawson Depo. p. 269 at lines 3-6). However, Lawson has

Case 3:06-cv-00641-WKW-TFM Document 16 Filed 07/30/2007 Page 18 of 36
 In fact, he names employees that he says did not have the restriction and one of the individuals he 8

names, Jacky W ycoff, is black. (Lawson Depo. p. 123 at lines 19-21).

19

never had any problems with Peppers. (Lawson Depo. p. 201 at line 22 to p. 202 at line 3).

Lawson had no complaints regarding Peppers as a supervisor. (Lawson Depo. p. 202 at lines 4-6).

Lawson clarified that Peppers never said anything to him that was racially discriminatory nor did

Peppers ever act in a racially discriminatory manner towards him. (Lawson Depo. p. 202 at lines

7-15).

2. Disparate Treatment At Water Plant

Lawson claims to have had one complaint regarding how Eugene Mahan treated him as

opposed to the white employees while working in the water plant but says he talked to the Mayor

about it and the issue got better. (Lawson Depo. p. 140 at line 1 to p. 141 at line 22). This alleged

complaint and conversation with the Mayor occurred while Lawson was still on probation at the

water plant. (Id.) The complaint was allegedly based on the notion that Lawson was assigned jobs

that the other employees did not have to do. (Lawson Depo. p. 238 at line 9 to p. 240 at line 8).

Again, Lawson confirmed that after speaking with Mayor Young, the matter was resolved. (Id.)

Mahan clarifies that Lawson was not the only black employee in the department and that Lawson

was never assigned tasks that were not asked of every employee. (Mahan Aff. at ¶¶5, 6). Mahan

also states that Lawson never made complaints to him. (Id.) In fact, this claim seems out of place

with Lawson’s testimony about how close he became to Mahan, which Mahan confirms. (Id.) 

3. Grade 4 Certification Requirement

Lawson claims that it was unfair that he be given a specific time in which to obtain his

Grade 4 certification because nobody else had been given such a limitation. (Lawson Depo. p. 121

at line 1 to p. 123 at line 1). However, it should be noted that he makes this claim about everybody,

regardless of race. Moreover, Mayor Young explains that all employees getting that job with the 8

City must obtain the certification within fifteen months because ADEM requires it to be obtained

Case 3:06-cv-00641-WKW-TFM Document 16 Filed 07/30/2007 Page 19 of 36
 Lawson’s Complaint makes a claim regarding wages being incorrect because of his race but 9

clarifies that he is basing his claim on the fact that when he was hired he was given a stipulation of time in

which he had to obtain his Grade 4 certification. (Lawson Depo. p. 240 at line 9 to p. 241 at line 2). 

20

within a reasonable time after employment. (Young Aff. at ¶5). Every employee had the same

restriction as Lawson. (Id.) In fact, Lawson does not claim that this alleged difference was based

on his race. (Lawson Depo. p. 125 at lines 17-22). Regardless, Lawson was transferred at his

request before the 15 month period ended. 

9

III.

Argument and Conclusions of Law

A. Standards Governing Summary Judgment

"The moving party bears the initial burden of informing the court of the basis for its motion

and of identifying those materials that demonstrate the absence of a genuine issue of material

fact." Gonzales v. Lee County Housing Authority, 161 F.3d 1290, 1294 (11 Cir. 1998) (quoting

th

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986));

Fed.R.Civ.P. Rule 56(c). The moving party “always bears 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 affidavits, if any,’ which it believes

demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.

317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The moving party's burden may be met

either by demonstrating that there is no evidence of a dispute of material fact or by demonstrating

that the non-moving party has failed to make a showing “sufficient to establish the existence of an

element essential to that party’s case, and on which [she] will bear the burden of proof at trial.”

Celotex, 477 U.S. at 322; see also Real Estate Financing v. Resolution Trust Corp., 950 F.2d 1540,

1543 (11th Cir. 1992) (“One way to seek an award of summary judgment is for the moving party

to demonstrate that an essential element of the non-movant's case is lacking.”).

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21

After the moving party has met its burden under Rule 56(e), the non-moving party must go

beyond the pleadings and designate specific facts from affidavits, answers to interrogatories and/or

depositions showing that there is a genuine issue for trial. Celotex, 477 U.S. at 322. The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the

material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp, 475 U.S. 574,586,106 S.Ct.

1348, 1356, 89 L.Ed.2d. 538 (1986). 

The Eleventh Circuit Court of Appeals has held that where the movant meets the initial

burden of showing either that there are no genuine issues of material fact or the absence of

evidence to support the non-moving party’s case, the burden then shifts to the non-movant to show

the existence of a genuine issue of material fact. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116

(11th Cir. 1993). The court in Fitzpatrick held for issues on which the non-movant would bear the

burden of proof at trial as follows:

For issues on which the non-movant would bear the burden of proof

at trial, the means of rebuttal available to the non-movant vary

depending on whether the movant put on evidence affirmatively

negating the material fact or instead demonstrated an absence of

evidence on the issue. Where the movant did the former, then the

non-movant must respond with evidence sufficient to withstand a

directed verdict motion at trial on the material fact sought to be

negated. Where the movant did the latter, the non-movant must

respond in one of two ways. First, he or she may show that the

record in fact contains supporting evidence, sufficient to withstand

a directed verdict motion, which was ‘overlooked or ignored’ by the

moving party, who has thus failed to meet the initial burden of

showing an absence of evidence. Celotex, 477 U.S. at 332, 106

S.Ct. at 2557 (Brennan, J., dissenting). Second, he or she may

come forward with additional evidence sufficient to withstand a

directed verdict motion at trial based on the alleged evidentiary

deficiency. (citation omitted).

Fitzpatrick, 2 F.3d at 1116.

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22

B. Argument

1. Qualified Immunity

From the outset it should be noted that there is no individual liability pursuant to Title VII for

race discrimination, therefore, any Title VII claims brought against Danny Peppers and Mayor

Barbara Young are due to be dismissed as a matter of law. See Busby v. City of Orlando, 931 F.2d

764 (11 Cir. 1991). To that end, these individuals as government employees are entitled to

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qualified immunity which offers complete protection for government officials sued in their individual

capacities if their conduct does not violate clearly established statutory or constitutional law which

a reasonable person would have known about. Vinyard v. Wilson, 311 F.3d 1340, 1346 (11 Cir. th

2002). Qualified immunity is “a pure legal decision of (1) whether the implicated federal

constitutional right was clearly established and (2) whether the alleged acts violated [the] law.”Koch

v. Rugg, 221 F.3d 1283, 1294 (11 Cir. 2000). Defendants Young and Peppers maintain that th

Lawson has failed to plead sufficient facts indicating that any of their actions were a violation of

clearly established constitutional law such that a reasonable person would have known about. That

is, the determination of whether a federal law is clearly established must be made in light of the

specific context of each case, not a broad, general proposition. Vinyard, 311 F.3d at 1349.

However, for the purposes of summary judgment only, Young and Peppers acknowledge that it has

been established that race discrimination in public employment is prohibited. See Gardner v. City

of Camilla, Georgia, 186 Fed.Appx. 860 (11 Cir. 2006); see also Busby supra. Specifically, there th

have been cases regarding race-based employment decisions of discipline, promotions, etc., by

a government official. See e.g., Alexander v. Fulton County, Georgia, 207 F.3d 1303 (11 Cir. th

2000); Yeldell v. Cooper Green Hospital, Inc., 956 F.2d 1056 (11 Cir. 1992). Here, Lawson claims th

he was terminated because of his race. In Brown v. City of Ft. Lauderdale, 923 F.2d 1474, 1478

Case 3:06-cv-00641-WKW-TFM Document 16 Filed 07/30/2007 Page 22 of 36
23

(11 Cir. 1991), the Eleventh Circuit recognized the right through the equal protection clause to be th

free from termination because of race. 

Accordingly, the issue of qualified immunity in this case revolves around whether the

Defendants’ alleged acts violated the law. That is, did race discrimination occur? To that end,

based on the reasons that are addressed herein, Peppers and Young assert that summary

judgment is due to be granted in their favor allowing qualified immunity protections, because there

is not a genuine issue of material fact that any conduct they engaged in constituted race

discrimination.

2. Race Discrimination Pursuant to §1981, §1983 and Title VII

Title VII of the Civil Rights Act of 1964, as amended, prohibits an employer from

discriminating “against any individual with respect to his compensation, terms, condition, or

privileges of employment, because of the individual’s race, color, religion, sex, or national origin.”

42 U.S.C. §2000e-2000(a)(1)(as amended). In the present case, Lawson asserts that he was

treated differently and terminated because of his race. In order to support his Title VII claims,

Lawson must establish that these actions were the result of intentional discrimination. See

Merriweather v. Alabama Dept. of Public Safety, 17 F.Supp.2d 1260, 1267 (M.D. Ala. 1998)(citing

St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). He may

prove intentional race discrimination through either direct or circumstantial evidence. See Shuford

v. Alabama State Bd. of Educ., 978 F.Supp. 1008, 1015 (M.D. Ala. 1997).

 “[E]vidence is direct when it is sufficient to prove discrimination without inference or

presumption. Only the most blatant remarks whose intent could be nothing other than to

discriminate constitute direct evidence.” Id. (quoting Clark v. Coates & Clark, Inc., 990 F.2d 1217,

1223 (11 Cir. 1993)). Lawson offers no direct evidence of intentional discrimination. Therefore, th

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24

Lawson must prove his claim by circumstantial evidence through a framework of shifting burdens

of proof. 

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973),

the Supreme Court created a framework of the burden of production and order of presentation of

proof to analyze circumstantial evidence of discrimination. See Nix v. WLCY Radio/Rahall

Communications, 738 F.2d 1181, 1184, reh’g denied, 747 F.2d 710 (11 Cir. 1984) (noting that the th

McDonnell Douglas framework is a valuable tool for analyzing disparate treatment cases). To

prove discriminatory treatment through circumstantial evidence, the plaintiff must first make out a

prima facie case. If a prima facie case is not established, summary judgment is due to be granted.

If a prima facie case is established, the burden shifts to the defendant to produce legitimate,

nondiscriminatory reasons for the alleged adverse employment action. When legitimate,

nondiscriminatory reasons are proffered, the burden then shifts back to the plaintiff to establish that

those reasons are pretextual. McDonnell Douglas, supra, 411 U.S. at 802-04. If the plaintiff fails

to produce evidence sufficient to permit a reasonable factfinder to disbelieve the defendant’s

proffered nondiscriminatory reasons, summary judgment should be granted. Holifield v. Reno, 115

F.3d 1555, 1565-66 (11 Cir. 1997). For the reasons discussed herein below, Lawson’s race

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claims pursuant to Title VII are due to be dismissed as a matter of law. To that end, because

summary judgment is appropriate on Plaintiff’s Title VII claims, summary judgment should also be

granted as to Plaintiff’s §1981 and §1983 claims because those claims are analyzed under the

same standards as Title VII. See Stallworth v. Shuler, 777 F.2d 1431, 1433 (11 Cir. 1985) th

(holding that the McDonald Douglas framework for proving intentional discrimination is applicable

to §1981 claims); Rolle v. Worth County School Dist., 128 Fed.Appx. 731, 732 n.4 (11 Cir. th

2005)(citing Standard v. A.B.E.L. Servs, Ins., 161 F.3d 1318, 1330 (11 Cir. 1998); Cross v. th

Alabama, 49 F.3d 1490, 1508 (11 Cir. 1995)(holding that if §1983 is brought in a cause of action th

Case 3:06-cv-00641-WKW-TFM Document 16 Filed 07/30/2007 Page 24 of 36
 Defendant Alex City asserts that, in addition to meeting the Title VII standards, Lawson would have

10

to further prove that the alleged deprivation was taken pursuant to a practice, policy or custom Martinez v.

City of Opa-Locka, Fla., 971 F.2d 708, 713 (11 Cir.1992) (citing Monell, 436 U.S. at 690-91). Lawson has th

not pled such here and cannot establish facts of same even if it were possible to create a question of fact as

to the Title VII analysis. 

 Lawson could meet this element by presenting evidence that he was replaced by an individual 11

outside his protected class but that is not how he approaches his case. Rather, he argues that he was treated

differently than similarly situated white employees. See Keel v. U. S. Dept. Of Air Force, 256 F.Supp.2d 1269

(M.D.Ala. 2003)(where court looked to whether similarly situated employees were treated more favorably to

determine a prima facie case because Plaintiff had not argued the method of replaced by someone outside

of the protected class).

25

as a parallel remedy for a violation of Title VII, the elements of the causes of action are the

same).10

3. Termination

Lawson cannot present a genuine issue of material fact regarding his termination claim.

a. No Prima Facie Case

Lawson’s termination claim fails because he cannot establish a prima facie case of race

discrimination in regards to why the City terminated him. To make a prima facie case of

termination, Lawson must establish, by a preponderance of the evidence, “(1) that he is a member

of a protected class; (2) he suffered an adverse employment action; (3) he was qualified for the job;

and (4) the Defendants treated similarly-situated employees outside his protected class more

favorable. ” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091(11th Cir. 2004); see also 11

Holifield,115 F.3d at 1562. Lawson cannot establish a prima facie case because there was no

adverse employment action and he was not treated differently than similarly-situated employees

when he was terminated.

(1) No Adverse Employment Action

Even though he was terminated, Lawson cannot establish that he suffered an adverse

employment action because it is undisputed that he refused to take the grievance procedure letter

that could have ultimately resulted in the Mayor reconsidering the termination. Lawson

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26

unequivocally admits that Mayor Young said she was mistaken when she did not offer the

grievance process to him and that Mayor Young said that, through that process, she would

reconsider the termination. (Lawson Depo. p. 187 at line 1 to p. 188 at line 22). He refused to take

the letter. (Lawson Depo. p. 188 at line 23 to p. 189 at line 4). Lawson’s position is that he did not

estimate the meters. He further claims the City cannot prove otherwise. Assuming the facts in the

light most favorable to Lawson, he would have received his job back through the grievance

process. He certainly cannot establish here that he would not have received his job. As such,

Lawson’s failure to exhaust his administrative remedies in an attempt to retain his job negates his

ability to establish an adverse employment action. Defendants did not find a case directly on point

but assert that this case presents special facts: Lawson did not suffer an ultimate adverse

employment action because he did not allow the City to reconsider his termination as Mayor Young

reassured him would happen. (Young Aff. at ¶11). Courts considering this concept in collective

bargaining cases and the like have accepted this notion. See ie Fusaro v. Haileah Housing

Authority, 33 F.Supp.2d 1354 (S.D. Fla. 1999). 

Accordingly, Lawson did not suffer an adverse employment action when he was terminated.

Any adverse employment action would not have been effective until he did not prevail through the

grievance procedure. Therefore, Lawson cannot establish a prima facie case and summary

judgment is due to be granted in Defendants’ favor.

(2) No Proper Comparator was treated better

Even if Lawson had suffered an adverse employment action, he still cannot present a prima

facie case of race disparate treatment because he cannot present proper evidence that similarlysituated employees were treated differently than him. The Eleventh Circuit has clarified that in

order for comparators to be similarly-situated, they must be “nearly identical.” See Maniccia v.

Brown, 171 F.3d 1364, 1368-69 (11 Cir. 1999) (holding that alleged misconduct must be nearly th

Case 3:06-cv-00641-WKW-TFM Document 16 Filed 07/30/2007 Page 26 of 36
27

identical for comparators to be considered similarly-situated). Moreover, the burden is on Lawson

to present affirmative evidence that he is similarly-situated to the alleged comparators. See e.g.

Keel, 256 F.Supp.2d at 1285. The Eleventh Circuit has plainly stated that the burden is on the

plaintiffs “to show a similarity between [his] conduct and that of white employees who are allegedly

treated differently and not on [the defendant] to disprove their similarity.” See Jones v. Gerwens,

874 F.2d 1534, 1541 (11 Cir. 1989). The comparators must be similarly situated in all aspects

th

or their conduct must be of comparable seriousness for that which he was discharged in order for

this burden to be met. Holifield, 115 F.3d at1563. The Eleventh Circuit requires “that the quantity

and quality of comparator’s misconduct be nearly identical to prevent courts from second-guessing

employers’ reasonable decisions and confusing apples and oranges.” Keel, 256 F.Supp.2d at 1286

(citing Maniccia, 171 F.3d at 1368). The Keel court further states:

In making this analysis a Court must keep in mind that ‘Title VII does

not take away an employer’s right to interpret its rules as it chooses

and to make determinations as it sees fit under those rules[.]” 

Keel, 256 F.Supp.2d at 1286 (citing Maniccia, 171 F.3d at 1369).

In the present case, Lawson cannot establish similarly-situated individuals that were treated

differently. It is undisputed that a white individual has been terminated by Mayor Young for

estimating meters, just as Lawson was terminated. (Young Aff. at ¶14; Peppers Aff. at ¶12). More

importantly, the two individuals to whom Lawson attempts to compare himself were simply people

who had made mistakes on their meter readings. (Young Aff. at ¶15; Peppers Aff. at ¶9). Even

Lawson clarified that he is unaware of any time wherein other individuals were accused of

estimating meters as opposed to actually reading them. (Lawson Depo. p. 176 at line 21 to p. 177

at line 14). Rather, he admits that the only time a related issue came up was during the fall

meeting with Mayor Young, which undisputably was over misreadings – not estimating – of meters.

(Lawson Depo. p. 168 at lines 1-13; Peppers Aff. at ¶ 10). To that end, it cannot be reasonably

Case 3:06-cv-00641-WKW-TFM Document 16 Filed 07/30/2007 Page 27 of 36
28

argued that a new meter reader making a mistake is the same seriousness as Lawson intentionally

not reading meters. The information that Peppers found before recommending the termination of

Lawson was extensive. (Peppers Aff. at ¶ 6). In an attempt to correct customer bills, Locke

confirmed this information. (Locke Aff. at ¶ 3). That Lawson is arguing that his decision to not read

meters should be seen as equal to the problem of new meter readers making mistakes when

reading meters is irrelevant to this analysis. See Barrow v. Georgia Pacific Corp., 144 Fed.Appx.

54, 58 (11 Cir. 2005)(holding that plaintiff’s claim failed when he presented only his own th

unsubstantiated opinion that he was qualified for a position in question). In short, there is no

dispute that (1) the individuals who made mistakes in meter reading had not committed the same

wrong as Lawson and (2) that the white employee who had also estimated meters received the

same treatment as Lawson. As such, Plaintiff cannot establish a prima facie case of race

discrimination in regard to his termination because there is simply no evidence that he was treated

differently than similarly-situated individuals. Accordingly, summary judgment is due to be granted

in favor of the Defendants.

b. Legitimate Non-discriminatory Reason

Even if Lawson could establish a prima facie case of discrimination, he cannot present

evidence of pretext regarding the legitimate, non-discriminatory reason for terminating him.

Because Defendants need only produce, not prove, the nondiscriminatory reasons, the burden is

“exceedingly light”. See Perryman v. Johnson Products Co., 698 F.2d 1138, 1142 (11 Cir. 1983); th

see also Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1061 (11 Cir. 1994). 

th

Defendants have plainly stated that Lawson was terminated because he was estimating

meter readings which caused incorrect bills to be issued to the utilities customers of Alex City. 

Because Defendants have met their burden of production, Lawson must come forward with

evidence:

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29

sufficient to permit a reasonable fact finder to conclude that the

legitimate reasons given by the employer were not its true reasons,

but were a pretext for discrimination. (citations omitted). This

evidence must reveal “such weaknesses, implausibilities,

inconsistencies, incoherencies or contradictions in the employer’s

proffered legitimate reasons for its actions that a reasonable

factfinder could find them unworthy of credence.’”

Vessels v. Atlanta Indep. School System, 408 F.3d 763, 771 (11 Cir. 2005) (citing Cooper v.

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Southern Co., 390 F.3d at 695, 725 (11 Cir. 2004). Moreover, each of the race-neutral reasons

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must be sufficiently rebutted. Chapman v. A.I. Transport, 229 F.3d 1012,1037, n.30 (11 Cir. 2004) th

(citing Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11 Cir. 1997). 

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Lawson cannot provided information that the reason given for his termination is mere

pretext. First, other than his own testimony, Lawson can present no evidence that he in fact was

not estimating meters. In fact, the overwhelming evidence is to the contrary. (Peppers Aff. at ¶

6; Locke Aff. at ¶ 3). More critically, Lawson cannot provide any evidence that the decision-maker,

Mayor Young, did not in good faith believe that he, in fact, was intentionally estimating meters at

the time that she made her decision to terminate him. The Keel court is instructive on this issue:

Evidence showing a false factual predicate underlying the

employer’s proffered reason does not unequivocally prove that the

employer did not rely on the reason in making the employment

decision. Instead, it may merely indicate that the employer, acting

in good faith, made the disputed employment decision on the basis

of erroneous information. It is obviously not a violation of federal

employment discrimination laws for an employer to err in assessing

the performance of an employee. Thus, establishing pretext is not

merely demonstrating that the employer made a mistake, but that

the employer did not give an honest account of its behavior. 

Keel, 256 F.Supp.2d at 1287. The Keel court clarifies that such a rule is long-standing in the

Eleventh Circuit citing numerous Eleventh Circuit cases holding such. Thus, it matters not that

Lawson maintains that he did not estimate meters. 

It is also important to note that it is irrelevant that Lawson might disagree with how the

evidence against him was gathered, how the issues were communicated to him, or how the

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wrongful conduct was compared to other individuals that had made mistakes. That is, Lawson’s

position that he was not on notice that you could be fired for it or that you cannot judge his

performance on an printout is certainly no evidence of pretext. Again, Lawson would have to

provide evidence that Defendants did not believe he estimated meters when making the subject

employment decision against him. See Moore v. Sears, 683 F.2d 1321, 1323 n.4 (11 Cir. 1982) th

(noting “it is well settled in employment discrimination cases ... that for an employer to prevail the

jury need not determine that the employer was correct in its assessment of the employee’s

performance,” (citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct.

1089, 67 L.Ed.2d 207 (1981) (other citations omitted)). Such is certainly not the case here.

Lawson’s testimony that he was the only black employee in the department also fails to

establish evidence of pretext. Lawson says he believes that he was terminated because he is black

based on the premise that nobody else was reprimanded or terminated that day. However, this

statement is certainly not evidence of pretext in that he goes on to admit that he has no knowledge

of any other individuals being accused of estimating meters. Accordingly, any other employee’s

treatment that day is irrelevant. Moreover, Lawson was not the only black employee in the

department as is testified to by him and confirmed by Mahan. (Mahan Aff. at ¶6). As such, no race

claim is possible as to his termination. See Perryman v. West, 949 F.Supp. 815 (M.D. Ala.

1996)(plaintiff’s claim of race discrimination failed when he insisted that he was singled out from

all other employees, white and black individuals). 

To the extent that Lawson would present evidence of pretext based on his allegation that

individuals similarly-situated were treated more favorably, the Defendants adopt and incorporate

herein the discussion regarding similarly-situated individuals previously addressed. To that end,

it is undisputed that there was no individual similarly-situated to Lawson, as that term has been

defined by Eleventh Circuit case authority. Peppers described in detail the difference in Lawson’s

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31

wrongful conduct and the mistakes that some new meter readers had made that caused the Mayor

to have a meeting with them in the Fall of 2005. (Peppers Aff. at ¶9). Locke confirmed the

difference between making a mistake and the evidence he saw regarding Lawson’s estimating

meters. (Locke Aff. at ¶3). Further, a white meter reader has been fired for estimating, just like

Lawson. Precedential case authority dictates that a significant difference would be recognized

between mistakes by new employees and intentional conduct by another. See e.g. Silvera v.

Orange County School Bd., 244 F.3d 1253, 1259 (11 Cir. 2001); McCaskill v. ConAgra Foods, th

Inc., 296 F.Supp.2d 1311, 1317 (M.D. Ala. 2003); Davis v. Qualico Misc. Inc., 161 F.Supp.2d 1314

(M.D. Ala. 2001). 

Lawson’s unsubstantiated opinion that Peppers “acted kind of prejudice” is certainly no

evidence of pretext especially in light of his further testimony where he in detail denied that Peppers

ever spoke to him in a racially derogatory manner, said anything racially derogatory, or acted in a

derogatory manner. (Lawson Depo. p. 201 at line 22 to p. 202 at line 15). The same is also true

for Mayor Young. To the extent that her conduct toward Lawson is attempted evidence of pretext,

such is meritless. It is undisputed that Mayor Young never said or did anything to Lawson that was

racially discriminatory. (Lawson Depo. p. 265 at line 23 to p. 266 at line 5). Her mistake about the

grievance procedure has no bearing whatsoever on the decision to terminate Lawson. It is

undisputed that she corrected her mistake the next day. Lawson’s refusal to take the letter and

pursue the grievance procedure certainly cannot serve as evidence of pretext. If anything,

Lawson’s failure to pursue a grievance indicates he knew his conduct to be wrong. 

Lawson’s unsubstantiated testimony that the City simply did not want black people reading

meters is also meritless and certainly not evidence of pretext. The notion that the City simply did

not want a black person reading meters is somewhat absurd in light of the fact that it is undisputed

that Peppers, Mahan, and Mayor Young all helped get Lawson the job as a meter reader. (Peppers

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Aff. at ¶3; Young Aff. at ¶¶8,9; Mahan Aff. at ¶8). Lawson claims Mayor Young wanted to give him

another chance. Lawson provides no reasonable explanation as to why these same people,

without reason, had a change of heart and wanted him fired just because of his race. 

Additionally, there is no causal connection between Lawson’s race and his termination.

Lawson ultimately carries the burden of at least linking, in some way, his race to the unfavorable

treatment. He claims that he feels like he was fired because of his race, which is simply not

sufficient evidence of discrimination. It is insufficient to claim that the other employee was white.

See Geer v. Marco Warehousing, 179 F.Supp.2d 1332, 1341 (M.D. Ala. 2001) (holding that

“employers decision to upgrade technology in one area should not be interpreted as sexual

discrimination [under Title VII] merely because the employee in the other area happens to be a

member of protected class.”). Without a causal connection, Lawson again, fails to establish a

prima facie case of discrimination.

Based on the foregoing, Lawson fails to present evidence of pretext and therefore the

legitimate, nondiscriminatory reason for his termination remains unrebutted. As such, summary

judgment is due to be granted in favor of Defendants and Lawson’s claims dismissed as a matter

of law. 

4. Other Disparate Treatment

Lawson also makes mention of two other potential issues of race discrimination: (1)

unfavorable treatment by Mahan while he worked at the Water Filtering Plant; and (2) unfavorable

treatment when he was made to obtain his Grade 4 certification within fifteen months of his hire

date.

First, Lawson is unable to establish that the issues upon which he attempts to base his

claims constituted an adverse employment action. Inconveniences and job assignments do not

constitute an adverse employment action. See Belt v. Ala. Historical Com’n, 2005 WL 1653728

Case 3:06-cv-00641-WKW-TFM Document 16 Filed 07/30/2007 Page 32 of 36
 The mayor says this complaint was not about unfair treatment based on race. (Young Aff. at ¶7). 12

33

(S.D. Ala.). Moreover, being required to obtain the certification to maintain his job would not in and

of itself constitute an adverse employment action, because not everything that happens negative

to an employee is an adverse employment action. See Davis v. Town of Lake Park, Fla, 245 F.3d

1232, 1238 (11 Cir. 2001). As such, Lawson cannot establish a prima facie case of disparate th

treatment regarding either of these issues because there is no evidence that he suffered a

materially adverse action. 

In the alternative and assuming for the sake of argument that either of those issues could

constitute an adverse employment action, Lawson cannot establish a prima facie case of race

discrimination in regard to these issues because it is undisputed that he was not treated differently

than similarly-situated employees.

As to his treatment in the Water Filtering Plant, Lawson provides only his speculation that

he alone was made to do jobs that were more difficult or undesirable than his co-workers.

However, Mr. Mahan clarified that Lawson’s job assignments were no different than what is

expected of everybody in the department. (Mahan Aff. at ¶5). More importantly, Lawson was not

the only black employee in the Water Filtering Department. Therefore, his testimony that he was

doing what no one else was doing, (Lawson Depo. p. 239 at line 20 to p. 240 at line 5), is certainly

unrelated to his race and as such, this claim must fail. Additionally, as it relates to any claim that

Mahan treated Lawson differently, it should be noted that in Lawson’s deposition he was not

confident about any type of claims against Mahan. He maintained that he and Mahan were close

and they talked about a lot of things. (Lawson Depo. p. 115 at lines 1-13). Lawson further said that

he talked to the Mayor about a problem with Mahan and that it was rectified at that time. Said 12

evidence further establishes that he did not suffer an actual adverse employment action because

Mahan allegedly treated him differently. 

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34

In regards to the Grade 4 certification issue, Mayor Young clarifies that regardless of what

Lawson might have thought about this requirement, it is undisputed that ADEM dictates that all

employees in the Water Filtering Plant obtain a Grade 4 certification within a reasonable amount

of time after being employed in the department. (Young Aff. at ¶5). Therefore, the City has a rule

that any employee getting a job in that department must get a Grade 4 certification within fifteen

months. This rule applies to everybody who gets a job in that department. Lawson was given the

same restriction. Lawson did not have any rules or stipulations placed on him when he was

awarded that position that differed from any other individual that was awarded that position. Again,

Lawson was not the only black employee in that department and so Lawson’s contention that he

was the only person who had to obtain that certification in and of itself establishes that any

differences that he perceived that existed were not based on his race. He admits same. (Lawson

Depo. p. 121 at line 1 to p. 122 at line 1). As with the allegations about his treatment at the water

treatment plant, claiming that he was singled out from everyone else negates his ability to establish

a race claim. See Perryman, supra. 

Because the two issues that Lawson raises outside of his termination are not sufficient to

establish an adverse employment action and because there is not sufficient evidence to establish

he was treated differently than similarly-situated individuals, summary judgment is due to be

granted as to those claims. 

Even if there was some type of prima facie case established as to these issues, there is no

question that there is simply no evidence of pretext regarding Lawson’s treatment while employed

with the City. Lawson cannot establish that he was treated less favorably than similarly-situated

white employees because of his race. Where Lawson fails to show the existence of similarlysituated employees, summary judgment is appropriate where no other evidence of discrimination

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35

is present. Holifield,115 F.3d at 1562 (citing Mac v. Great Atl. and Pac. Tea Company, 871 F.2d

179, 182 (1 Cir. 1989). 

st

C. After-Acquired Evidence

Defendants assert that they did not know that Lawson had a prior felony conviction before

he was hired full-time with the City. Mayor Young testified that Lawson would not have been hired

had she known about the felony conviction. (Young Aff. at ¶13). The Lee Staffing Application

clearly states that Lawson does not have a felony conviction. (See Application). Although Lawson

initially testified that everybody knew about his past, he clearly testifies later that one of the reasons

that the City wanted to fire him was because they found out about his felony conviction. As such,

Defendants maintain that pursuant to pertinent case authority, Lawson cannot recover against

Defendants because he would have otherwise been terminated when the City found out about his

felony convictions and would not have ever been hired. At the least, Lawson’s recovery against

the City, even if there ever was a jury verdict, would not include reinstatement or front pay. See

Prescott v. Independent Life and Accident Ins. Co., 878 F.Supp. 1545 (M.D. Ala. 1995).

IV.

Conclusion

Based on the undisputed facts of this case and precedential case authority, summary

judgment is due to be granted on all Lawson’s claims against Defendants. Under the undisputed

facts, there is no genuine issue of material fact to be submitted to a jury.

Wherefore premises considered, Defendants request this Court to grant summary

judgment in its favor and dismiss Lawson’s claim against them as a matter of law.

Respectfully submitted this the 30 day of July 2007. th

Case 3:06-cv-00641-WKW-TFM Document 16 Filed 07/30/2007 Page 35 of 36
36

 /S/ Elizabeth Brannen Carter 

Randall Morgan [8350-R70R]

Elizabeth Brannen Carter [3272-C-38-E]

HILL, HILL, CARTER, FRANCO,

 COLE & BLACK, P.C.

425 South Perry Street

Montgomery, Alabama 36101-0116

(334) 834-7600

(334) 263-5969 facsimile

Rmorgan@hillhillcarter.com

Counsel for Defendant

OF COUNSEL:

HILL, HILL, CARTER, FRANCO

 COLE & BLACK, P.C.

Post Office Box 116

Montgomery, Alabama 36101-0116

(334) 834-7600

(334) 263-5969

CERTIFICATE OF SERVICE

I Hereby Certify that I have this date served a true and correct copy of the foregoing

Memorandum Brief in Support of Motion for Summary Judgment on Behalf of Defendants with the

Clerk of the Court for the United States District Court, for the Middle District of Alabama, using the

CM/ECF system which will send notification of such filing to: Ethan R. Dettling, Esquire

(eDettling@wcqp.com) and Jon Craig Goldfarb, Esq. (Jgoldfarb@wcqp.com), this the 30 day of th

July 2007.

/S/ Elizabeth Brannen Carter 

Of Counsel

Case 3:06-cv-00641-WKW-TFM Document 16 Filed 07/30/2007 Page 36 of 36