1This classification was previously named Civil Engineer or Civil Engineer I/II.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

LEROY WILLIAMS, *

*

Plaintiff, *

*

v. * Civil Action No.:

* 2:06-cv-658-ID

STATE OF ALABAMA DEPT. OF *

TRANSPORTATION, et. al. *

*

Defendant. *

PLAINTIFF’S RESPONSE TO

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

This lawsuit concerns the rejection of Leroy Williams, an African-American male, during

his probationary period by the Alabama Department of Transportation (ALDOT) after he was

promoted to Transportation Technologist. As set froth below, Mr. Williams was discriminated

against due to his race and in retaliation for protected activity.

I. STATEMENT OF MATERIAL FACTS

A. Mr. Williams Had An No Disciplinary Actions And Was Considered An

Exceeds StandardsEmployeePrior toHisPromotionToTransportation

Technologist.

Mr. Williams began work with the Alabama Department of Transportation in 1993. Px E.

During the twelve years prior to his promotion to Transportation Technologist

1

in 2005, Mr.

Williams had usually received ratings of “exceeds standards” or “consistently exceeds standards”

on his evaluations as an Engineering Assistant, the feeder classfor Transportation Technologist. Dx

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F; Dx G; Px D. Teresa Barksdale, one of his supervisors just before his promotion stated that he,

“does not hesitate to ask questions or request assistance. Leroy is very cooperative with his coworkers.” Dx Z at Bates 34. GaryBeasley, Mr. Williams’ supervisor prior to Ms. Barksdale stated:

Williams has years of experience and gathers data, as a rodman,

quickly and accurately. He wastes very little energy getting

unnecessary data. He helps me train new employees and is very

capable operating our total station instrument. He can always be

counted on to give a good days work.

Mr. Williams has very few weaknesses.

Dx Z at bates 32. During his entire twelve years of employment with ALDOT prior to his

promotion to Transportation Technologist Mr. Williams had never received any disciplinary action

and had never been marked as non-compliant with the punctuality requirement. Less than three

months after his promotion to as one of the first African-American Transportation Technologists in

the Design Burea of ALDOT, Mr. Williams was removed from this classification for alleged

“continual excessive tardiness” and “insubordination.” Dx X. (“This action is being taken because

of your continual excessive tardiness and repeated insubordination.”). As shown below, these

allegations are factually false.

B. Mr. Williams Was Found Qualified for the Transportation

Technologist ClassificationBy theStatePersonnel Under State of

the Art Selection Procedures

The Transportation Technologist classification is the first classification within the

engineering line of progression at ALDOT with supervisory responsibilities. See Dx AA

(“Employees might supervise lower level assistants in the completion of duties’). The

Transportation Technologist had no African-Americans prior to the filing of the Reynolds v.

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Alabama Department of Transportation and the first appointments of any significant numbers of

African-Americans to that classification occurred in 1998 and 1999 under court supervised rounds

of appointments where hundreds and hundreds of appointments were approved en mass by theCourt

based afterthe defendants had failed to develop the validated selection proceduresthat were required

under the Reynolds Consent Decree. Px B at 33-34 and C at 20-22 and 78-79. In 2005, ALDOT

began making the first appointments under the newly validated examinations and selection

procedures. PX H. Mr. Williams was among the first African-Americans appointed to

Transportation Technologist in the Design Bureau under these new validated procedures. Px H; Px

B at 33-36. According to Don Arkle, who is currently the assistant chief engineer over policy and

planning, the “department considered those to be state of the art examinations and the best possible

way to select candidates for the transportation technologist position.” Px B at 12. As set forth in

the State Personnel Department job announcement:

The total exam time is approximately 7 1/2 hours, however

candidates will be at the exam site for a longer period of time. The

Transportation Technologist- Analysis and Planning Option

examination consists of four different components: 1) Plan Reading

Exercise, 2) Technical Reading and Writing Exercise, 3) Role-Play

Exercise and 4) Scheduling Exercise. The Plan Reading Exercise

requires the candidate to review a set of instructions and roadway

plan sheets and then respond to questions about the plan. The

Technical Reading and Writing Exercise requires the candidate to

review instructions, a technical manual, and data related to the

manual in order to prepare a written response to the inquiry. The

Role-Play Exercise requires the candidate to meet with an individual

during a video-taped session in order to discuss a problem situation.

The Scheduling Exercise requiresthe candidate to serve in the role of

a Transportation Technologist in the Analysis & Planning option and

complete a work schedule, assigning employees to specific projects

and tasks.

Dx. AA.

Under the state meritsystem, once an applicant passesthe minimum qualifications and takes

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an examination he is placed on the register for that classification and the top ten scores for a

geographic area are then placed on a certificate of eligibles and ALDOT must select from those ten

persons. Px B at 13-14. Mr. Lewis had one of the top ten scores for Montgomery at the time of his

selection and was placed on a certificate of eligibles. Px F. ALDOT was then forced to hire Mr.

Williams as he was the only candidate among the top ten who said that they were available as all

other candidates either said they did not want to work in that location (“L”code ) or had already

received an appointment to the classification (“H” code). Compare Px. F to Px. B at 15-16. Mr.

Williams was appointed to the Transportation Technologist classification to position number

1736405 on May 14, 2005. Px. F.

C. Mr.WilliamsWasImproperly Placed Under the Supervision of Another

Transportation Technologist Who Admits To Racial Prejudice

Mr. Williams was then placed under the “supervision” of Tommy Lewis. Mr. Lewis is the

individual who reprimanded Mr. Williams for his alleged “excessive tardiness” and

“insubordination.” As will be shown below, Mr. Lewis was in the same merit system classification

as Mr. Williams at the time he “supervised” Mr. Williams and should have had no authority to

reprimand him. Mr. Lewis first came to ALDOT when he received a personal phone call from Ray

Bass because Mr. Bass knew Mr. Lewis’ father. Px. B at 11. Ray Bass was appointed Highway

Director under George Wallace and was found in the Reynolds litigation to have threatened to fire

Johnny Reynolds if he asked a white woman for a date. Reynolds v. Alabama Dep’t of

Transportation, 4 F.Supp.2d 1068, 1077 ( M.D. Ala. 1998). Mr. Bass was also found to have known

of and tolerated the use of racial slurs throughout ALDOT and the Design Burea. Id. at 1080. Mr.

Lewis admitted in his deposition that he uses racial slurs when not at work and that he has called an

Case 2:06-cv-00658-TFM Document 31 Filed 05/30/2007 Page 4 of 27
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African-American “nigger” when not at work. Px. C at 76.

Mr. Lewis admitted that he had “heard through the crews” that Mr. Lewis was a class

member in the Reynolds case. Px. C at 56. Mr. Lewis also admitted that he believed the Reynolds

case had held up his personal promotionsfor many years. Px. C at 19-20. Mr. Williams hastestified

and written that within the first week that he was promoted to Transportation Technologist he had

a conversation with Mr. Lewis where Mr. Lewis stated that Mr. Williams had received his

promotion due to the Reynolds lawsuit and that Mr. Williams had received a promotion and a raise

while he had only received a promotion. Px. A t 93-95; Dx. Z at Bates 26. Mr. Lewis denied any

such conversation stating instead that he “congratulated” Mr. Williams because they had both gotten

a promotion. Px. C at 25-26. Mr. Lewis testified that when he “supervised” Mr. Williams he had

just been promoted to the Transportation Technologist Senior classification and the Party Crew

Chief. Px. C at 24 and 28.

ALDOT’s documents show that Mr. Lewis is not telling the truth. Mr. Williams was

appointed to the Transportation Technologist position on May 14, 2005. Px. F. He was demoted

back to the Engineering Assistant classification (class code 20115) and transferred away from Mr.

Lewisin September 2005. Dx. X; Px E. The defendants’ own documentsshow that Mr. Lewis was

not promoted to Transportation Technologist Sr. (code 20482) until February 2006– nearly nine

months after Mr. Williams was promoted to Transportation Technologist (code 20481) and that

during the entire time he “supervised” Mr. Williams, Mr. Lewis held the same merit system

classification. Px. R; Px N; Px Q. Mr. Arkle admitted that a Transportation Technologist should

be supervised by a Transportation Technologist Senior and that members of the same classification

should not supervise each other. Px. B at 10-11.

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The defendants documents show that Mr. Lewis was placed on the Transportation

Technologist Senior register on April 27, 2005 with a score of 8.39. Px. N at 3. Out of 161

candidates who have been placed on the Transportation Senior register since the defendants

developed validated examinations, Mr. Lewis scored 160

th

. Px S. Mr. Lewis was placed into the

Field Crew Chief position on on “out-of-classification” basis – in other words he was placed into the

position without competition and without having gone through the state merit system. Out of

classification assignments were restricted by Article XV of the Reynolds Consent Decree. Px. X.

In January 2000, the Reynolds Court entered a consent contempt order wherein ALDOT agreed that

“Use of out of classification assignments is to be eliminated by March 30, 2000. Thereafter, duties

or positions may be assigned on an out of classification basis only when necessary on a temporary

or emergency basis.” Px. Y. Under the Contempt Order, out-of-class assignments required the

approval of the Transportation Director.Id. The person requesting that Mr. Lewis be placed into that

out-of-classification assignment was William Adams. Mr. William Adams is the leader of a group

of non-class members--consisting predominantly of white employees of the department, and now

commonly referred to as the 'Adams intervenors'–who intervened in the Reynolds case to challenge

relief sought for the African-American class. Reynolds v. Alabama Dep’t of Transportation, 4

F.Supp.2d 1068, 1080 ( M.D. Ala. 1998)(attached as Px Z); Px B at 53-54. Px C at 49. Mr. Lewis

out-of-class assignment was not approved by the Director until July 11, 2005– several months after

Mr. Lewis began to “supervise” Mr. Williams. Px. O at 3. Mr. Lewis stayed in that out-of-class

position until ALDOT was finally able to reach him on a certificate of eligibles in February 2006.

The out-of-classification request also shows that Mr. Adams failed to consider anyone else for the

position– even though there were available African-Americans for the position. Px. O at 3; Px. W.

Case 2:06-cv-00658-TFM Document 31 Filed 05/30/2007 Page 6 of 27
2Mr. Lewis was appointed over an African-American with a higher score on the

examination, Lawrence Brown. Px. R. Under the Reynolds Consent Decree, the defendants must

state the reason for selections. On the selection form for Mr. Lewis, the defendants state that he

was chosen for his “twenty-three years location surveying experience.” Px. T. Lawrence Brown,

the African-American with a higher score on the examination has 28 years of surveying

experience with ALDOT. Px. W. Mr. Brown scored the same as Mr. Lewis on the structured

oral interview for the position. Compare Px. U with Px V.

7

On the portion of the form that lists “candidates considered for out-of-classification assignment,”

Mr. Adams listed “none.” Px O at 3.

2

The defendants’ documents also support Mr.Williams’ claimthat Mr.Lewis complained that

Mr. Williams got a promotion and a raise while Mr. Lewis got only a “promotion.” Mr. Lewis

received no compensation for his out-of-classification assignment. In accepting the assignment, Mr.

Lewis agreed not to seek additional compensation. “It has been explained and I understand that I

am being requested to perform these tasks freely and voluntarily without change of status,

classification, salary or benefits.” Px. O at 4. In making the request for the out of class assignment,

Mr. Adams stated as the reason that “registers were not available.” Px. O at 2. The reason that

registers were allegedly not available was the Reynolds litigation.

Mr. Williams testified that in addition to complaining that Mr. Williams had gotten his

position through the Reynolds lawsuit, Mr. Lewis immediately began to yell at him in front of the

persons Mr. Williams was supposed to supervise and that he would belittle him in front of

employees and countermand his orders. Px. A at 92-97. Mr. Lewis denied ever yelling at Mr.

Williams. Px C at 74.

The defendants’ documents also show that Mr. Lewis was not truthful when asked if Mr.

Williams had accused him of being prejudiced:

Q. But he never accused you of being prejudice?

Case 2:06-cv-00658-TFM Document 31 Filed 05/30/2007 Page 7 of 27
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A. No.

Q. Can you identify Plaintiff's Exhibit 2 which has been

previously marked as Defendant's Exhibit 9 to the deposition

of Leroy Williams?

A. Yes, I wrote this.

Q. If you would, turn to Roman Numeral one which is on the

third page.

A. (Complied.)

Q. Have you had a chance to read that?

A. Yes.

Q. And byP-R-E-J-U-D-G-E-S, isthat how you -- that's how you

spelled prejudice?

A. I think I misspelled it. I'm not sure.

Q. And in thatstatement, in that counseling statement you stated

under little letter "A" accusing me of being prejudice will not

be tolerated. So in this counseling session you did accuse or

did say that Mr. Williams had accused you of being prejudice;

correct?

A. Yes, I did.

Q. And just a few moments ago you told me he never accused

you of being prejudice, which is it?

A. He -- he didn't -- you asked me -- did you say racial?

Q. No. I asked you if he accused you of being prejudice?

A. I misunderstood you. What's on the paper is correct.

Q. How did that make you feel, Mr. Lewis, when he accused you

of being prejudice?

A. I don't know 'cause I'm not. I mean --

Case 2:06-cv-00658-TFM Document 31 Filed 05/30/2007 Page 8 of 27
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Q. Have you ever used any racial slurs, Mr. Lewis?

A. Not that I remember at work, no.

Q. So you have used racial slurs not at work; correct?

A. I would say yes.

Q. Have you used the word "nigger" not at work?

A. Yeah. Yes.

Q. Have you called African-American's nigger when not at

work? You're under oath, Mr. Lewis.

A. Probably have, yeah.

Px C at 74-76. In another document, Mr. Lewis went to Mr. Williams crew to question them about

the allegations of harassment made by Mr. Williams. Px. M. It is clear from that document that Mr.

Williams crew felt that Mr. Williams was being treated unfairly and differently from other

supervisors:

Mr. Jones on the Monday the 15

th

of August I held a crew meeting

before the crew went out to the field. Present was Leroy Williams,

Field Supervisor,TransportationTechnician,ChanninGrantham,EAII/III,RodneySanders,EA-I,Robbie Jones,EA-1 and MichaelCrowe

EA-1.

I started the meeting informing the crew that some very serious

charges had been brought against me. They were that I had been

harassing and degrading Mr. Williams in front of the crew on a

regular basis. I asked each member of the crew one by one if they had

seen this happen.

Mr. Sanders spoke first and he explained that he thought that I was

holding Mr. Williams to too high of a standard for a new supervisor.

He understood that I had been a supervisor for some time and he

thought I should not expect as much as out of Leroy because he was

Case 2:06-cv-00658-TFM Document 31 Filed 05/30/2007 Page 9 of 27
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a new supervisor. Nothing was said about me harassing or degrading

Mr. Williams.

Ms. Jones told me, I feel the same was as Mr. Sanders I feel like you

should not expect quite so much out of Mr. Williams because he was

a new supervisor.

I explained that I understood their concerns but the question was

“Have you seen me harass or degrade Mr. Williams at any time” They

both told me, “No” they had not seen me do that.

I asked Mr. Crowe. He replied “No” I have not seen that. I then

turned to Mr. Grantham he also told me he had not seen that take

place.

Later that day I drove to Tuscaloosa where Mr. Austin was working.

I explained the charges that were brought against me. He told me he

had never seen me treat Mr. Williams in that manner.

No ALDOT official, other than Mr. Lewis, the person accused of prejudice and harassment ever met

with the members of Mr. Williams crew. Indeed, it appears that Mr. Jones, Mr. Lewis supervisor,

instructed Mr. Lewis to make this “investigation.” Dx U at 2. “I instructed Tommy to have a

meeting with his crew as soon as possible and see if this was accurate.”

D. William Adams, the Leader of the White Intervenors In The Reynolds

Class Action Recommended Mr. Williams “Rollback” To Don Arkle

Who Has Been Found Guilty of Racial Discrimination

In the same document where it is shown that the alleged harasser and discriminator is told

to investigate Mr. Williams allegations, Mr. Jones informs Mr. William Adams, the leader of the

Adams intervenors in the Reynolds case, that “Tommy said that Leroy has threatened to get a

lawyer.” Dx U. Four days after that memo was written, Mr. Adams sent a memorandum to Don

Arkle, the Design Bureau Chief, recommending that Mr. Williams be demoted from his

Case 2:06-cv-00658-TFM Document 31 Filed 05/30/2007 Page 10 of 27
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Transportation Technologist Position. Dx. V.

On that very same day, Mr. Arkle concurred with the demotion. Dx. V. In his deposition,

Mr. Arkle admitted that he never did any investigation of the facts, that he never met with Mr.

Williams, and that he never bothered to look at Mr. Williams personnel file to see that he had never

before had any disciplinary problems or any allegations of insubordination or tardiness. Px. Bat 22-

28. Mr. Arkle also confirmed that Mr. Williams was not demoted for his work performance but for

the alleged “continual excessive tardiness” and insubordination. Px. B at 29. Mr. Arkle also

admitted that he was not even aware that Mr. Lewis was also a Transportation Technologist and had

not been appointed to theTransportationTechnologist Senior classification and was “reprimanding”

someone in his own classification. Px. B at 23. Mr. Arkle then admitted that he did not even

consider the possibility of any bias on the part of Mr. Adams- the leader of the group who

intervened in the Reynolds case to oppose relief to the African-American class. Px B at 23.

Judge Thompson has previously found Mr. Arkle guilty of discrimination and failing to

investigate claims of discrimination byAfrican-Americans and ofretaliating against themformaking

such claims. Reynolds v. Alabama Dep’t of Transportation, 4 F.Supp.2d 1068, 1088 ( M.D. Ala.

1998). (“It is undisputed that two of three prima-facie factors have been satisfied. Reynoldssuffered

an adverse employment action--he was suspended without pay. In addition, while Arkle did not list

Reynolds's participation in the department's grievance procedure as a reason for Reynolds's

suspension, Arkle stated at the 1996 trial that this was, in fact, a motivating reason.”) Don Arkle had

recommended that Mr. Reynolds be suspended for asking a white employee if the employee had

called him a “nigger” as had been suggested by another employee which then led the white employee

to threaten the life of the other white employee. Judge Thompson also found:

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Lett, Jordan, and Wiggins were not the only supervisors who knew

that racialslurs were used in Roadway Design but failed to act. Arkle

admitted that he was aware of the racial tensions, but he did nothing.

Indeed, Smith reported to Arkle on several occasionsthatsupervisors,

such as Lett and Jordan, were using racial slurs, and Arkle did

nothing. Fowler, Bass, and Butts all knew that racial slurs were

regularly used in Roadway Design, but each did nothing. Although

Arkle testified that the department's policy was to investigate any

claim involving a racial slur--with or without corroboration--Arkle

himself undermined this policy when he failed to respond to Smith's

complaints in any way.

Reynolds v. Alabama Dep’t of Transportation, 4 F.Supp.2d 1068, 1080 ( M.D. Ala. 1998).

Judge Thompson then concluded:

In conclusion, the Transportation Department suspended Reynolds

because of his race and in retaliation for protected conduct, in

violation of Title VII. Others in the Transportation Department, not

Reynolds, are guilty of violations of the department's racial

harassment policy. Director Butts, Chief Engineer Bass, Design

Bureau Chief Arkle, Roadway Design Engineer Bush, Assistant

Roadway Design Engineer Reese, Section Leader Wiggins, Squad

Leader Lett, and Squad Leader Jordan, have all violated the

department's racial harassment policy. Although aware of both

isolated and widespread instances of the use of the word "nigger,"

they failed to take any corrective measure. Moreover, because they

failed to take corrective measure, they set the stage for--that is, they

created the environment that led to--the racialstrife thatspawned this

litigation. If anyone deservessuspension, they do. Indeed, until they

assume the responsibility placed on them by federal law and the

orders of this court to enforce the Transportation Department's racial

harassment policy aggressively and expansively, they will continue

to have incidents similar to, if not worse than, that involving

Reynolds, Scott, and Lett.

Reynolds v. Alabama Dep’t of Transportation, 4 F.Supp.2d 1068, 1090 ( M.D. Ala. 1998)(emphasis

added). When asked if Judge Thompson had made such a finding, Mr. Arkle responded:

A. I -- I can't recall what Judge Thompson ordered or ruled.

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Q. So you don't remember what Judge Thompson said you had

done wrong in his opinion?

A. No, I don't recall.

Q. Do you recall anything about what Judge Thompson said in

that opinion?

A. I believe he ruled in favor of Mr. Reynolds.

Q. Did he also rule that you had knowingly allowed the use of

racial slurs throughout the design bureau?

A. No.

Q. You're saying he did not find that you knowingly allowed it

and that there was common usage throughout the design

bureau?

A. No, I don't recall him ruling that.

Px. B at 50-52 (objections omitted)

E. The Alleged Reasons For Mr. Williams Demotion are Pretextual.

Having established the obvious bias of the decision makers, we now turn to the actual

conduct for which Mr. Williams was demoted. As set forth in Mr. Arkle’s memorandum, Mr.

Williams was demoted for alleged “continual excessive tardiness” and “insubordination.” Dx X.

Mr. Lewis, who is also only a Transportation Technologist, identified the following four instances

of “continual excessive tardiness”:

Occasion One: On Wednesday, June 1, 2005 you reported to the parking lot in

Montgomery at 5:05 a.m. which was 5 minuteslate. At that time I informed you that

being tardy was unacceptable. This was a verbal warning.

Occasion Two: The very next day I instructed the crew to meet in the parking lot of

the motel where everyone wasstaying in Auburn. You did not report at that location

and I had to be told by another crew member where you were. That in itself is an

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infraction because you did not do asinstructed. All other crew membersreported just

as I had instructed. I told you on that day you were late, because you were not where

Itold you to be at 7:00 a.m. I explained if you were late again you would be subjected

to disciplinary actions. This was a second verbal warning.

Occasion Three: On Monday, June 20

th

you did not arrive at the office Tuscaloosa

until 7:30 a.m. You called me that day and told me your stomach was bothering you.

Even though you told me you were sick you went on out and worked the rest of the

day like there wasn’t anything wrong. I explained to you the importance of being on

time to set an example for the crew members you supervise. This was a third verbal

warning and a pattern had developed.

Occasion Four: And now on Monday July 25

th

, you did not report to the office here

in Tuscaloosa until 7:14 a.m. You did not notify me even as I talked with you on the

Southern Linc BEFORE 7:00 a.m. That in its self is grounds for a Reprimand. I am

mystified asto why you did not mention to me that you were going to be late because

you should have been very aware that being tardy is not acceptable.

Dx.

Mr. Williams denies that he was late on the first occasion. Px A at 113. Indeed, Mr. Lewis

testified that the start time for Wednesday was 7:00. Px. C at 44. Mr. Lewis had no explanation for

why they would have been supposed to be at work at 5:00 on a Wednesday other than he “might

have written the day down wrong.” Px. C at 59-60. On the second occasion, Mr. Williamstestified

that he was at the work site on time and that Mr. Lewis never told him to be at the parking lot. Px

A at 113-114. Indeed, ALDOT’s official attendance policy guidelines states that in order to be on

time an employee “ should be at their work station” and “not on their way to work or in the parking

lot.” Dx. M. Thus, it is Mr. Lewis who instructed the crew to violate state policy and not be on the

work site by 7:00 a.m but to be in the motel room parking lot. Mr. Lewis admitted that he does not

know that Mr. Williams was not at the work site by 7:00 a.m. Px C at 60-61. On the third occasion,

Mr. Williams testified that he attempted to take a sick day but that Mr. Lewis refused to give him

Case 2:06-cv-00658-TFM Document 31 Filed 05/30/2007 Page 14 of 27
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a sick day even though he had available sick leave and annual leave. Px. A at 115-116. Mr.

Williams also testified that he was at work on that day by 7:14 a.m. rather than 7:30 a.m. as stated

by Mr. Lewis. Mr. Lewis testimony on this topic is simply asinine:

Q. So it's your testimony that you never told him that he could --

that he was not eligible to take a sick day on that day?

A. No.

Q. And that he was a supervisor and that he should come to

work?

A. I told him, best of my recollection, I said -- best of my

recollection, I said you need to come on in if you can, but if

you can't, that's fine.

Q. So in other words, you did know that he was sick before he

came into work and even though he came into work sick you

reprimanded him for being 30 minutes late to work?

A. Because he did not notify me by seven o'clock like he was

instructed to like everybody is instructed to.

Q. But he came in at 7:30 so sometime between seven and 7:30

you got a phone call by your testimony saying that he was

sick?

A. Uh-huh (affirmative response).

Q. So you reprimanded him because he waited until a couple

minutes after seven to call you to tell you that he was sick?

A. Yes, I did. Because everyone's instructions are if you're sick,

if you're going to be late, and if you're not coming in you

need to call by seven o'clock.

Q. And is it your testimony that for every employee that you

supervised including white employees that those employees

who do not call you before seven o'clock get a warning or a

reprimand for not calling before seven o'clock?

Case 2:06-cv-00658-TFM Document 31 Filed 05/30/2007 Page 15 of 27
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A. They get a warning or a reprimand, yes.

Q. Every individual who failsto call by seven o'clock, that's your

testimony under oath?

A. That's my testimony.

Q. And is that the department's policy that any employee who

does not call before seven o'clock gets a reprimand?

A. A warning or a reprimand.

Q. Is that your testimony?

A. A warning. We're instructed to make sure they're on time. If

they're not on time, they're given a warning or if it's abuse --

if it's an ongoing thing, you know, it happens on a regular

basis, yes, reprimand.

Q. So on this occasion, this was the first time that Mr. Williams

had attempted to call in sick while he was under your

supervision; correct?

A. I think it was the first time.

Q. And it is your testimony under oath that all other employees

that you've ever supervised who failed to call in before seven

o'clock were given a warning or a reprimand?

A. To the best of my knowledge, yes.

Px. C at 63-67 (Objections omitted). Again, it is Mr. Lewis, not Mr. Williams, who is violating

ALDOT’s written policy. ALDOT’s Attendance/Punctuality Guidelines states, “If for any reason,

an employee will be late or cannot report to work, the supervisor should be notified at the start of

the day or as soon as possible.” Calling in a few minutes after 7:00 a.m. as Mr. Lewis admits Mr.

Williams did is certainly “at the start of the day.” Dx M. Mr. Arkle admitted that Mr. Williams

should not have been reprimanded if he called in sick:

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Q. If an employee calls in and asks for time off and says they're

sick,should they be reprimanded for being late when they're told that

they can't take a sick day?

A. I don't think that's what happened here.

Q. I'm asking my question. Please answer it.

A. Okay. If an employee calls in between seven and 7:30 and is

sick and needs the day off and they have the sick leave time to use it,

they ought to be allowed to use it.

Q. And why would you call somebody and tell them you're sick if

you're planning on coming into work anyway, isthat what employees

normally do, do they call their boss and say I'm sick and I'm going to

come in anyway?

Q. Have you ever had anybody do that in your experience as a

manager --

Q. -- call you to say I'm sick but I'll be there in a few minutes?

A. I can't recall an occasion.

Px. B at 46-47. On the Fourth occasion, Mr. Lewis admitsthat Mr. Williams called him before 7:00

and that his instructions could have made Mr. Williams late:

Q. And you state that you talked to him on the Southern Linc before

7 a.m. Were you giving him instructions about the job, is that why

you were talking to him that day?

A. Yes.

Q. What were those instructions about?

A. I don't even remember.

Q. Is it possible that they were detailed instructions?

A. They were important instructions if I called him.

Q. And we've already established that it would have been a good

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safety policy to pull off the road while you're talking on the phone on

detailed instructions, haven't we?

A. It's a good idea to.

Q. Is it possible that it's your instructions which caused Mr.

Williams to be late that day?

A. I don't know if they were or not.

Px. C at 68-69. Mr. Williams testified that he pulled off the side of the road to take Mr. Lewis’

instructions, that it was the instructions that made him late and that in any even he arrived by 7:06

a.m or 7:08 a.m. and that he had been behind the carry all carrying all the other workers from

Montgomery to Tuscaloosa at the time Mr. Lewis called him. Px A at 116-117.

Thus, once examined in the light most favorable to the plaintiff, there is no “continual

excessive tardiness” as alleged by the defendant. On the first occasion, Mr. Williams denies he was

late. On the second occasion, he was at the job site by 7:00 a.m. just as ALDOT’s guidelinestell him

to be. On the third occasion, he properly asked for time off that should have been available to him.

On the fourth occasion, he was 6 to 8 minutes late and that was due to pulling off the road to take

Mr. Lewis’ instructions. Moreover, as shown by the printout from mapquest, the two hours allotted

by the defendantsto drive from Montgomery to the Tuscaloosa job site was notsufficient. Mapquest

estimates 2 hours and 24 minutes to make that drive. Dx

We now turn to the alleged insubordination. Mr. Lewis’ admitted that the insubordination

referred to Dx 3 which was attached as Ex. 11 to Mr. Williams deposition and Ex. 3 to Mr. Lewis’

deposition. Px. C at 83-84. Mr. Lewis also admitted that the entire “insubordination” consisted of

the following:

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Q. Would it be fair to say that the reason you wrote this reprimand

was that Mr. Williams walked away from you while you were giving

him instructions?

A. Yes.

Q. Is it also true that Mr. Williams had -- you had given Mr.

Williams instructions, he then asked you to repeat what was said and

he went down and sat on a log and listened to you give instructions

again; is that correct?

A. To the best of my recollection, yes, sir.

Q. Did he ask you if you had any new instructions to give him

before he walked away?

A. I don't remember.

Q. Is it possible that he may have?

A. He could have.

Px C at 77-78.

Mr. Lewis also admitted that he had performed Mr. Williams field supervisor job as an

Engineering Assistant II/III and that there were no differences between what an EA II/III did (for

which Mr.Williams had been receiving “exceedsstandards” evaluations” and what a Transportation

Technologist did except for supervision:

Q. Mr. Lewis, what, if any, are the differences in the job duties that

Mr. Williams would have been performing as a civil engineer I or

transportation technologist and those that he would be performing as

a engineering assistant other than supervision of employees?

A. None really. I mean, you're doing the same work. You're just

responsible for it. You're responsible for everybody's work instead of

just yours.

Q. So you would be doing the same -- running the same types of

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equipment, you'd be performing the

same --

A. Same task.

Q. -- mathematical calculations, same task, same everything?

A. Yes.

Q. Now, I think we've cleared this up on the record but I just want

to make sure. When you were an engineering assistant II-III, you

were working as a field supervisor and in the same position that Mr.

Williams held as a transportation technologist. There was a period of

time where you were doing that as an EA II-III and was not out of

classification, that was considered the proper classification for that

job?

A. I believe that's correct.

Px. C at 90-91.

Mr. Williams, a twelve year employee who had a history of receiving “exceeds standards”

evaluations at virtually the same job duties was then replaced by a white employee Channin

Granthem. Px.J. Mr. Granthem was not even on the certificate of eligibles when Mr. Williams was

appointed to his Transportation Technologist position. Px. F. Mr. Granthem was with ALDOT less

than three years when he was placed into Mr. Williams position. Px. L. Moreover, as shown by

ALDOT’s own organizational chart, Mr. Granthem is not even required to supervise any employees.

Px K-1.

Mr. Williams is not the only African-American Transportation Technologist to suffer a

“rollback” to their previous classification once they have passed the defendants’ “state of the art”

examinations. Between the time ALDOT began making appointments under the newly validated

examinations and December 31, 2005, there were 30 African-Americans appointed and 99 nonCase 2:06-cv-00658-TFM Document 31 Filed 05/30/2007 Page 20 of 27
21

blacks to the Transportation Technologist classification. Px. G. As shown by Mr. Williams State

Personnel Department Records, the state uses a code of “223" when an employee is “rolled back”

to their previous classification during their probationary period. Px E. Out of the 30 AfricanAmericans appointed during that time period, 3 were given a code 223 and demoted from

Transportation Technologist to Engineering Assistant. Px I. Thus, a full 10% of the AfricanAmericans who are found qualified by the State Personnel Department and who pass the “state of

the art” examinations and who score in the top ten on that examination for their geographical area

and who then are selected after a “state of the art” structured oral interview to be Transportation

Technologist fail to survive their probationary period with ALDOT. In contrast, out of the 99 nonblacks appointed, not a single person was coded a “223. In other words, 100% of non-blacks

survive their probationary period.

II The Defendants’Motion for Summary Judgment onMrWilliams Racial

Discrimination Claims are Due to Be Denied.

A plaintiff may generally establish a prima facie case of race discrimination under Title VII

and § 1981, by showing that (1) she is a member of a protected class; (2) she was terminated; (3)

she was qualified for his position; and (4) she was replaced by someone outside of the protected

class. Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181 (11

th Cir. 1984). However, in

cases where an employee has been terminated from a previously held position, the Eleventh Circuit

has articulated a modified version of this rule. See Rosenfield v. Wellington Leisure Products, 827

F.2d 1493, 1495, n.2 (11

th Cir. 1987); Lee v. Russell County Bd. of Educ., 684 F.2d 769, 773 (11th

Cir.1982). Plaintiff has shown that he is African-American, was qualified for his job (having

survived “state of the art” selection procedures and having performed virtually the same job duties

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as an Engineering Assistant and having received “exceeds standards” evaluations and having been

demoted and replaced by a white employee, Channin Granthem who has nine years less experience

with ALDOT.

Mr. Williams has also shown that white employees who were also field supervisors and

Transportation Technologistsin the Design Burea – all under the supervision of Don Arkle, the final

decisionmaker, were not demoted or allowed to advance to that classification despite having been

tardy, having performance problems and having been insubordinate to supervisors. Px. A at 137-

143. Indeed, Mr. Granthem, who replaced Mr. Williamsin theTransportationTechnologist position

was not reprimanded by Mr. Lewis for being 20 to 30 minutes late. Px. A at 143-144. Mr. Arkle

admitted that he could not testify that white employees have always been reprimanded for being five

minutes late as was Mr. Williams. Px. B at 25. Mr. Lewis also admitted that he has not always

reprimanded white employees for being late. Px. C at 39-43. He also admitted that he can not

remember a single instance where he ever marked anyone down on their evaluation for lack of

punctuality as a supervisor. Px. C at 53. To say that state employees are routinely disciplined for

being five minuteslate and thatsomeone should not be a supervisor because they have been fourteen

minutes late. Px. C at 72. A reasonable jury could certainly infer that such claims are nothing but

a pretext for discrimination.

The quantum of proof necessary to defeat a motion for summary judgment when the defendant

presents a legitimate, non-discriminatory reason for its decision was discussed by the Eleventh

Circuit in Howard. The Eleventh Circuit, interpreting St. Mary's Honor Center, stated:

St. Mary's holds that proof that a defendant's articulated reasons are

false is not proof of intentional discrimination; it is merely evidence

of intentional discrimination. However, evidence of intentional

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discrimination is all a plaintiff-appellant needsto defeat a motion for

summary judgment. That evidence must be sufficient to create a

genuine factual issue with respect to the truthfulness of the

defendant's proffered explanation.

Howard, 32 F.3d at 525. "Under St. Mary's, a plaintiff withstands summary adjudication by

producing sufficient evidence to allow a reasonable finder of fact to conclude that the defendant's

articulated reasons for its decision are not believable." Id. at 526. See also Combs v. Plantation

Patterns, 106 F.3d 1519, 1532 (11

th Cir. 1997)("Once a plaintiff has established a prima facie case

and has put on sufficient evidence to allow a factfinder to disbelieve an employer’s proffered

explanation for its actions, that alone is enough to preclude entry of judgment as a matter of law.")

Assuming arguendo that defendants have articulated a legitimate, non-discriminatory or retaliatory

reason for Mr. Williams’ demotion, the burden then shifts back to Mr. Williams to demonstrate

pretext – “‘such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in

the employer’s legitimate reasons for its action that a reasonable factfinder could find [all of those

reasons] unworthy of credence.’” Watkins v. Sverdrup Technology, Inc., 153 F.3d 1308, 1314 (11

th

Cir. 1998)(quotingCombs v. Plantation Patterns, 106 F.3d 1519, 1538 (11

thCir. 1997), cert. denied,

522 U.S. 1045 (1998)). As the Eleventh Circuit held in Hairston:

The burden to avoid summary judgment is not to show by a

preponderance of the evidence that the reasons stated were pretext.

Rather, plaintiff's burden atsummary judgment is met by introducing

evidence that could form the basis for a finding of facts, which when

taken in the light mostfavorable to the non-moving party, could allow

a jury to find by a preponderance of the evidence that the plaintiff has

established pretext, and that the action taken was in retaliation for

engaging in the protected activity. Issues of fact and sufficiency of

evidence are properly reserved for the jury. The only issue to be

considered by the judge at summary judgment is whether the

plaintiff's evidence has placed material facts at issue.

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Hairston at 921. Plaintiff has satisfied that burden here.

II The Defendants’ Motion For Summary Judgment On Mr. Williams Claims of

Retaliation Are Due To Be Denied.

To prove a prima facie case of retaliation through circumstantial evidence, Mr. Williams

must show that (1) he engaged in protected activity, (2) he wassubjected to an adverse employment

action, and (3) the adverse employment action was causally related to the protected activity. Cooper

v. Southern Co., 390 F.3d 695, 740 (11th Cir. 2004).

There is no dispute that Mr. Williams engaged in protected activity. First he was a member

of the Reynolds lawsuit which Mr. Lewis blamed for his own lack of promotion for many years and

which was the alleged reason that he was placed in an out of classification position doing the work

but not getting paid for it. The defendants documents used for his demotion refer to his complaints

of discrimination and histhreat to get a lawyer. Dx U and Dx. V. Mr. Williams has also testified that

he filed a contemporaneous internal grievance – even though the defendants deny having received

it. This issue of fact alone should lead to the denial of summary judgment.

Nor can it be disputed that ALDOT took an adverse action against Mr. Williams when they

demoted him from Transportation Technologist and lowered his salary accordingly. Px E.

The law in this Circuit is that to satisfy the causal connection element, the plaintiff “merely

has to prove that the protected activity and the negative employment action are not completely

unrelated.” Holifield v. Reno, 115 F.3d 1555, 1566 (11

th Cir. 1997).

The simplest way for a plaintiff to prove the causation element of the prima facie case of

retaliation is through the temporal proximity of his complaints to his termination. "A plaintiff

satisfiesthis[causation] element if [s]he providessufficient evidence of knowledge of the protected

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expression and that there was a close temporal proximity between this awareness and the adverse

action." Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir.2004). "Close temporal proximity

between the protected activity and the adverse action may be sufficient to show that the two were

not whollyunrelated."Bass v. Bd. ofCountyComm'rs, 256 F.3d 1095, 1119 (11thCir.2001)(citation

omitted). Here, the Reynolds case was ongoing allegedly keeping Mr. Lewis from being promoted

and Mr. Adams, the leader of the white intervenors in Reynolds, recommended Mr. Williams

demotion just four days after being informed that Mr. Williams had threatened to get a lawyer and

that Mr. Arkle concurred with that recommendation the same day. Dx U.

However, Mr. Williams need not rely solely on temporal proximity to establish causation,

as there is ample additional evidence of the causal connection between Mr. Williams protected

activity and complaints of discrimination and his demotion.

The complete breakdown of the alleged justification for Mr. Williams demotion gives rise

to the inference that Mr. Williams protected activity and his complaints and his demotion were not

"completely unrelated." A reasonable jury could conclude, that Mr. Lewis, Mr. Adams and/or Mr.

Arkle were retaliating against Mr. Williams.

IV. CONCLUSION

Forthe foregoing reasons, defendants’ Motion for SummaryJudgmentshould be denied, and

plaintiff permitted to proceed to trial on his claims of race discrimination and retaliation.

Respectfully submitted,

Russell W. Adams

Counsel for Plaintiff

Case 2:06-cv-00658-TFM Document 31 Filed 05/30/2007 Page 25 of 27
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OF COUNSEL:

WIGGINS, CHILDS, QUINN & PANTAZIS, LLC

301 19

th Street North

Birmingham, Alabama 35203

(205) 314-0500

Case 2:06-cv-00658-TFM Document 31 Filed 05/30/2007 Page 26 of 27
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CERTIFICATE OF SERVICE

I hereby certify that on this the 30th day of May, 2007, I electronically filed the foregoing

with the Clerk of the Court using the CM/ECF system which will send notification of such filing to

the following:

Jim R. Ippolito

Andrew Redd

Alabama Department of Transportation

1409 Coliseum Boulevard

Montgomery, Alabama 36110

s/ Russell W. Adams

OF COUNSEL

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