1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

TY CRISWELL, et al., )

Plaintiffs, )

)

vs. ) CIVIL ACTION 14-00447-KD-N

)

MOBILE HOUSING BOARD and )

MOBILE COUNTY PERSONNEL BOARD, )

Defendants. )

ORDER

This matter is before the Court on Defendant Mobile Housing Board (Housing Board)’s 

Motion for Summary Judgment (Docs. 51-52, 58, 59, 66), Defendant Mobile County Personnel 

Board (Personnel Board)’s Motion for Summary Judgment (Docs. 54, 55, 59), Plaintiffs’ 

Response (Docs. 73, 75), the Housing Board’s Reply (Docs. 78, 80), and the Personnel Board’s 

Reply (Doc. 79).1

I. Findings of Fact2

A. The Parties

Plaintiffs are Alabama residents who were former hourly employees of the Housing 

Board’s Maintenance Department and civil service merit system employees. (Doc. 69 at 3-4; 

Doc. 52-1 (Decltn. Dees (Personnel Board Executive Director); (Doc. 58-1 at 2 (Decltn. Bryant)

 

1 The following claims were voluntarily dismissed with prejudice by the plaintiffs: 1) Plaintiff Weaver’s 

FLSA claim and state law claims for breach of contract, intentional misrepresentation/fraud, promissory fraud/false 

promise, promissory estoppel and equitable estoppel, against both defendants; 2) all of the Plaintiffs’ 

ADEA/AADEA claims against the Personnel Board; 3) all of the Plaintiffs’ claims ERISA claims against both 

defendants; and 4) all of the Plaintiffs’ ADA claims against both defendants. (Docs. 50, 57). 

2 On summary judgment, the Court must “resolve all issues of material fact in favor of the [non-movant], 

and then determine the legal question of whether the [movant] is entitled to judgment as a matter of law under that 

version of the facts.” McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir. 2004).

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 1 of 27
2

(Housing Board Human Resources Coordinator).3 Defendant Housing Board is a public body 

comprised of five (5) commissioner appointed by the Mayor of the City of Mobile, chartered 

under Alabama law to provide and administer affordable housing programs for local citizens, and 

created and maintained per the Housing Authorities Law, Ala. Code § 24–1–1, et seq. (Doc. 66-

1 at 1 (Decltn. Vaughn (Housing Board Executive Director)); Doc. 69 at 2; Doc. 58-1 at 2 

(Decltn. Bryant)). Defendant Personnel Board of Mobile County, Alabama, is an organization 

created by the Alabama Legislature, Local Act 470 (1939), which governs and controls 

individuals in the Classified Service. (Doc. 69 at 3; Doc. 52-2 at 2; Doc. 52-1 at 1 (Decltn. 

Dees)).

B. Employment at the Housing Board

Plaintiffs were long-time hourly employees of the Housing Board, when their 

employment terminated in September 2014; Criswell has been employed since 1991, Knight 

since 1992, McCord since 1989, Peacock since 1997, Smiley since 2001, and Weaver since 

2009. (Doc. 69 at 4; Docs. 52-4; 52-6; 52-8; 52-10; 52-12, 52-14, 52-16). Specifically, Plaintiff

Weaver was employed as a painter, while Plaintiffs Coffman, Criswell, Knight, McCord, 

Peacock and Smiley held various jobs over the years but ultimately each became a Public 

Service Supervisor I or Project Housing Building Maintenance Supervisor (a/k/a Maintenance 

Supervisor). (Doc. 52-1 (Decltn. Dees at 6); Docs. 52-4; 52-6; 52-8; 52-10; 52-12, 52-14, 52-

16). As Maintenance Supervisors, the Housing Board classified those Plaintiffs as “exempt” for 

 

3 A number of declarations submitted by the Housing Board are unsworn. Federal Rule of Civil Procedure

56 requires that ‘[a]n affidavit or declaration used to support or oppose a motion must be made on personal 

knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to 

testify on the matters stated. ‘ Fed. R. Civ. P. 56(c)(4). The advisory committee notes to Rule 56 explain that under 

Rule 56(c)(4), ‘[a] formal affidavit is no longer required. 28 U.S.C. § 1746 allows a written unsworn declaration, 

certificate, verification, or statement subscribed in proper form as true under penalty of perjury to substitute for an 

affidavit.‘ Fed. R. Civ. P. 56(c)(4), advisory committee notes (2010 amendments). However, the declarations of 

Dees, Bryant and Vaughn -- while not sworn -- are in compliance with 28 U.S.C. § 1746 as such have been 

submitted “under penalty of perjury,” and so can be considered on summary judgment. 

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 2 of 27
3

purposes of the Fair Labor Standards Act. (Doc. 58-1 at 2 (Decltn. Bryant)).

The Housing Board receives approximately 98% of its funding from the U.S. Department 

of Housing an Urban Development (HUD). (Doc. 66-1 at 1 (Decltn. Vaughn)). In 2013, 

sequestration was imposed on federal discretionary spending resulting in automatic proration and 

a mid-year cut of almost 15% to the Housing Board maintenance and management department 

funding. (Id.) In 2014, HUD again prorated its public housing funding to the Housing Board, 

and the Housing Board underwent a second substantial reduction in funding. (Id.) The Housing 

Board implemented cost saving measures on several occasions, but by the Summer of 2014 could 

not balance its budget without a lay-off. (Id.) The Housing Board management believed it could 

achieve higher productivity by restructuring its Maintenance Department, moving towards a 

centralized maintenance operation. (Id.) The Housing Board eliminated middle management 

represented by the Maintenance Supervisors, whose duties were absorbed by higher level 

managers, to avoid a lay-off. (Id.) The Housing Board selected other employees for lay-offs, 

which included one (1) painter (out of 12). (Doc. 66-1 at 1 (Decltn. Vaughn)). 

On August 11, 2014, pursuant to Personnel Board procedures, the Housing Board’s 

Executive Director Vaughn formally requested a lay-off list from the Personnel Board, which 

was provided. (Doc. 52-1 at 5 (Decltn. Dees)). Per Rule XIII, the Personnel Board prepared the 

lay off list, ranking employees within each job classification, based on seniority, service ratings, 

etc. (Id.) This established the order in which employees within each classification must be laid 

off. (Id.) In September 2014, the Housing Board laid-off 12 merit system employees from the 

following classifications: Housing Manager I, Maintenance Supervisor, Painter, Public Service 

Worker I, Housing Counselor, Utility Clerk, Office Assistant I. (Id.) The lay-offs were 

implemented in the order mandated by Personnel Board Rules and Local Act 470. (Id.)

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 3 of 27
4

At the time of these lay-offs six (6) Plaintiffs, Coffman, Criswell, Knight, McCord, 

Peacock and Smiley, were classified as Maintenance Supervisors. (Doc. 52-1 at 6 (Decltn. 

Dees)). The Housing Board laid off six (6) of the seven (7) Plaintiffs per Personnel Board rules 

and Local Act 470, and laid off one (1) of 12 Painters, Plaintiff Weaver. (Id.; Doc. 58-1 at 3 

(Decltn. Bryant)). On September 2, 2014, these employees were given 15 days notice, with an 

effective termination date of September 27, 2014. (Doc. 58-1 at 3 (Decltn. Bryant)). 

C. Post-Employment

Following their termination, Plaintiffs filed a complaint under the Personnel Board’s 

grievance procedure, claiming they had the right to assume lower class positions at the Housing 

Board in lieu of being laid-off (that they should have been “bumped back” per Personnel Board 

Rule XIII). (Doc. 52-1 at 5-6 (Decltn. Dees)). Their grievances were denied by the Housing 

Board, which found Rule XIII inapplicable because Plaintiffs were not promoted to their 

positions through a promotional test but through an “open competitive” process, and thus, did not 

have the right to a lower classified position in lieu of lay off. (Id. at 6, 8).

As a result, Plaintiffs initiated this action on September 26, 2014, alleging federal claims 

for violations of Fair Labor Standards Act, as amended, 29 U.S.C. § 201 et seq. (FLSA) (against 

the Housing Board), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.

(ADEA) (against the Housing Board), and state claims for violations of the Alabama Age 

Discrimination in Employment Act, Ala. Code § 25-1-20 et seq. (against the Housing Board),

breach of contract (against both defendants), intentional misrepresentation/fraud (against both 

defendants), promissory fraud/false promise (against both defendants), promissory estoppel

(against both defendants), and equitable estoppel (against both defendants). (Docs. 1, 6, 38, 69).

4

 

 

4 The Fourth Amended Complaint (Doc. 69) is the operative complaint in this case. 

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 4 of 27
5

See also Docs. 50, 57. 

II. Standard of Review

“The court shall grant summary judgment if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED.

R. CIV. P. 56(a). Rule 56(c) provides as follows:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is 

genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including 

depositions, documents, electronically stored information, affidavits or 

declarations, stipulations (including those made for purposes of the motion only), 

admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or 

presence of a genuine dispute, or that an adverse party cannot produce admissible 

evidence to support the fact.

(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party 

may object that the material cited to support or dispute a fact cannot be presented 

in a form that would be admissible in evidence.

(3) Materials Not Cited. The court need consider only the cited materials, but it 

may consider other materials in the record.

(4) Affidavits or Declarations. An affidavit or declaration used to support or 

oppose a motion must be made on personal knowledge, set out facts that would be 

admissible in evidence, and show that the affiant or declarant is competent to 

testify on the matters stated. 

FED.R.CIV.P. Rule 56(c).

Defendants, as the parties seeking summary judgment, bear 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 the 

affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” 

Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v. 

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 5 of 27
6

Catrett, 477 U.S. 317, 323 (1986)). If the nonmoving party fails to make “a sufficient showing 

on an essential element of her case with respect to which she has the burden of proof,” the 

moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. “In reviewing whether 

the nonmoving party has met its burden, the court must stop short of weighing the evidence and 

making credibility determinations of the truth of the matter. Instead, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. 

Bergrohr GMBH-Siegen, 965 F.2d 994, 998-999 (11th Cir. 1992).

III. Sham Affidavits

Before turning to the substantive claims, the Court must address the Housing Board’s 

contention that Plaintiffs’ summary judgment Declarations are “sham affidavits”5 which directly 

contradict their prior sworn deposition testimony regarding management duties. (Doc. 80 at 5-

15). The Housing Board adds that Plaintiffs’ Declarations improperly include conclusions of law 

concerning management duties, invading the province of the court. (Id. at 16). 

The Court has reviewed Plaintiffs’ Declarations (Doc. 75-2 through 75-7) against the 

deposition testimony cited by the Housing Board (Doc. 80 at 6-15). The Court is not persuaded 

that Plaintiffs’ Declarations constitute sham affidavits because the Declarations do not directly

contradict the specific pages of deposition testimony cited. Instead, the Housing Board appears 

 

5 Under the law of this Circuit, we may disregard an affidavit submitted solely for the purpose of opposing 

a motion for summary judgment when that affidavit is directly contradicted by deposition testimony.” McCormick v. 

City of Fort Lauderdale, 333 F.3d 1234, 1240 n. 7 (11th Cir. 2003); Fisher v. Ciba Specialty Chemicals Corp., 238 

F.R.D. 273, 284 (S.D. Ala. 2006) (explaining and applying “sham affidavit” rule). Specifically, Rule 56(e) of the 

Federal Rules of Civil Procedure requires that a party opposing a properly supported motion for summary judgment 

set forth specific facts, admissible as evidence, showing the existence of a genuine issue for trial. The rule 

specifically allows the court to consider the pleadings, depositions, answers to interrogatories and admissions on 

file, together with affidavits submitted by the opposing party in determining whether a genuine issue exists. 

However, “[w]hen a party has given clear answers to unambiguous questions which negate the existence of any 

genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely 

contradicts, without explanation, previously given clear testimony.” Van T. Junkins & Assoc., Inc. v. U.S. Indus., 

Inc., 736 F.2d 656, 657 (11th Cir. 1984). In order to be stricken as a sham, an affidavit must be inherently 

inconsistent. See, e.g., Rollins v. TechSouth, Inc., 833 F.2d 1525 (11th Cir. 1987).

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 6 of 27
7

to base its argument on a unilateral interpretation of Plaintiffs’ deposition testimony – namely, as 

testimony admitting they engaged in management duties and how they so engaged. However, 

the deposition testimony does not directly indicate that Plaintiff’s were performing management 

duties and could just as readily be interpreted by a jury as describing how Plaintiffs dispatched 

work orders, kept the work flowing to maintenance staff on a daily basis, etc. --- all for work 

assigned to the staff by someone else, with Plaintiffs essentially being a “pass through.” 

Additionally, the Housing Board characterizes Plaintiffs’ deposition testimony as conceding that 

they engaged in supervisory work of crews and assigned work to staff that they controlled. (Doc. 

80 at 4). However, the deposition testimony could be interpreted as Plaintiffs acting as more of a 

facilitator than a manager. There is also no evidence that Plaintiffs created their own work 

orders or assigned their own work to the staff. And while Plaintiffs may have attended weekly 

meetings with the Maintenance Department and monthly meetings with management (Doc. 80 at 

8), such attendance does not de facto result in Plaintiffs being management. A reasonable jury 

could find that Plaintiffs attended such meetings in order to receive their instructions from others 

who were management. In short, a jury could find that Plaintiffs were not managers.

Additionally, a comparison of Plaintiffs’ deposition testimony and the Declarations 

reveals they are not clearly or inherently inconsistent. See, e.g., Fisher v. Ciba Specialty Chem. 

Corp., 238 F.R.D. 273, 284 (S.D. Ala. 2006). There is no obvious inconsistency with the 

deposition testimony cited; thus, the “sham affidavit” rule is inapplicable. See, e.g., King v. 

ADT Sec. Servs., 2007 WL 2713212, *3 (S.D. Ala. Nov 17, 2007); Kerns v. Sealy, 2007 WL 

2012867, *10-11 (S.D. Ala. Jul. 6, 2007) (citing Van T. Junkins and Assoc., Inc. v. U.S. Indus., 

Inc., 736 F.2d 656 (11th Cir. 1984)). As set forth in King, 2007 WL 2713212, *3:

...the Eleventh Circuit has recently cautioned that the sham affidavit rule “is applied 

sparingly because of the harsh effect it may have on a party's case.” Allen v. Board of 

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 7 of 27
8

Public Educ. for Bibb County, --- F.3d ----, *8, 2007 WL 2332506 (11th Cir. Aug. 17, 

2007) (citation and internal quotations omitted). For that reason, and to avoid depriving 

the trier of fact of the opportunity to discern which witnesses are telling the truth and 

when, this Circuit “require [s] the court to find some inherent inconsistency between an 

affidavit and a deposition before disregarding the affidavit.” Id. (citation omitted). For 

any lesser variation in testimony, the proper approach is to test that inconsistency through 

cross-examination at trial and allow the jury to weigh it in determining the witness's 

credibility. There being nothing more than a possible inconsistency, and certainly much 

less than an inherent inconsistency...the sham affidavit rule has no application, and the 

Motion to Strike is denied as to this passage.

At best, the Housing Board (arguably) presents a “lesser variation in testimony.” Such is a 

matter to be tested at trial and assessed by a jury, not by the undersigned on summary judgment.

Further, as to the Housing Board’s contention that Plaintiffs’ Declarations improperly 

include conclusions of law concerning management duties, invading the province of the court, 

the undersigned cannot agree. In the Declarations, Plaintiffs are simply attesting to factual 

information about their daily activities and duties in the job. Plaintiffs make no legal conclusions 

or legal assertions. 

Upon consideration, the Court does not find clear and direct contradiction between the 

Declarations and prior deposition testimony meriting their exclusion. Thus, the Housing Board’s 

request for the Court to disregard Plaintiffs’ Declarations is DENIED.

IV. FLSA Violations: The Housing Board6

Plaintiffs7 allege that they were employees of the Housing Board who worked off the 

clock in excess of the scheduled 40 hours/week, but did not receive overtime pay in violation of 

FLSA Section 207(a).

Specifically, in the Complaint, Plaintiffs allege the following FLSA violations: 

A. FLSA

 

6 Plaintiffs do not allege FLSA claims against the Personnel Board. As such, it is ORDERED that the 

portion of the Personnel Board’s motion for summary judgment on the FLSA claims is MOOT.

7 Weaver does not allege an FLSA claim. 

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 8 of 27
9

13. Plaintiffs Criswell, Coffman, Knight, McCord, Peacock, and Smiley were hourly employees 

of MHB for at least three years prior to September 2014, when their employment with MHB 

ceased.

14. MHB only scheduled Plaintiffs to work forty (40) hours per week but Plaintiffs did not 

“punch a time clock” and worked “off the clock” for which time they were not paid.

15. During their employment Plaintiffs regularly worked hours during the week and on the 

weekend for which they were not compensated.

16. Plaintiffs worked in excess of 40 hours per week for which they were not compensated.

17. MHB did not maintain time records on Plaintiffs and, therefore, did not keep a records of 

overtime hours worked by Plaintiffs.

18. Plaintiffs were required to report to work and begin working prior to the time MHB had 

scheduled them. Plaintiffs were not paid for this work.

19. Plaintiffs were required to work during their lunch period and were not paid for this time 

worked.

20. Plaintiffs worked after hours and at night and were not paid for this time worked.

21. Plaintiffs worked on weekends and were not paid for this time worked.

22. For one week out of every seven weeks Plaintiffs were required to be “on call” twenty-four 

(24) hours each of the seven days and were not paid for either being on-call (standby) or for when 

they actually worked during this week.

23. Plaintiffs were not paid for any time worked before their scheduled time began, were not paid 

for any time worked during their lunch period, were not paid for any time worked after their 

scheduled time stopped, were not paid for any weekend work, were not paid for any call time 

either while on standby or while actually performing work.

24. Plaintiffs did not received overtime pay as required by Section 207(a) of the FLSA during the 

weeks they worked more than 40 hours. Plaintiffs’ job title was Housing Maintenance Supervisor; 

however, they did not have any employees of their own and did not have the authority to hire, 

fire, promote, determine starting pay of, give pay raises to, or discipline any other MHB 

employee. They did not recommend or determine budgets or policies on behalf of MHB.

25. Plaintiffs were not paid for time spent away from work for any reason including, but not 

limited to, personal reasons, sickness, and/or vacation unless they had and took accrued sick or 

vacation pay.

***

A. FLSA

60. Plaintiffs incorporate each and every paragraph above as if fully set out herein.

61. Plaintiffs were not exempt from the overtime provisions of the FLSA.

62. Defendant MHB failed to pay Plaintiffs for time worked which compensable as overtime or 

otherwise under the FLSA.

63. Defendant MHB’s failure to pay Plaintiffs was both unreasonable and in bad faith.

64. This action by Defendant MHB violates Plaintiffs’ rights under the FLSA.

65. Plaintiffs have suffered economic damages as a result of Defendant MHB’s unlawful

practices which were both unreasonable and in bad faith. Plaintiffs have and continue to incur

expenses and fees as a result of this unlawful practices.

(Doc. 69 at 4-5). 

The Housing Board argues that it is entitled to summary judgment on the FLSA claims 

because of the applicability of certain overtime pay exemptions. However, in its reply the 

Housing Board concedes that Plaintiff Smiley has created an issue of fact as to whether he was 

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 9 of 27
10

exempt from FLSA overtime during the latter part of his employment. (Doc. 80 at 19-20). The 

Housing Board also concedes that all plaintiffs have “succeeded in creating an issue of fact 

whether they are entitled to over compensation during the weeks in which MHB imposed a 

furlough day....” (Id. at 3). 

The FLSA requires that employers pay their employees a minimum wage of no less than 

$7.25/hour, and that they compensate their employees for overtime pay at a rate of 11⁄2 times the

regular rate for each hour worked in excess of 40 hours/week. 29 U.S.C. §§ 206(a), 207(a). 

However, the FLSA provides overtime pay exemptions for “[a]ny employee employed in a bona 

fide executive, administrative, or professional capacity,” 29 U.S.C. § 213(a)(1), as those terms 

are defined by the DOL’s regulations. Even so, the overtime provisions of the FLSA are 

construed narrowly, and the employer bears the burden of proving the applicability of any 

exemption. Hogan, 361 F.3d at 625; Evans v. McClain of Ga., Inc., 131 F.3d 957, 965 (11th Cir.

1997). The employer must do so “by clear and affirmative evidence.” Klinedinst v. Swift Invs., 

Inc., 260 F.3d 1251, 1254 (11th Cir. 2001). Moreover, as set forth in Calvo v. B&R 

Supermarket, Inc., 63 F.Supp.3d 1369, 1379 (S.D. Fla. 2014) (internal citations omitted):

“Congress expressly authorized the Secretary of Labor to define the scope of 

the...exemptions...“To determine whether a genuine issue exists about whether Plaintiff 

qualified as an “administrative” or “executive” employee...the Court looks to applicable 

case law and to the Code of Federal Regulations.”...“Such legislative regulations are 

given controlling weight unless they are arbitrary, capricious, or manifestly contrary to 

the statute.”....

In this case, the Housing Board relies upon the Executive, Administrative, and 

Combination exemptions, as the basis for not paying Plaintiffs overtime. At the outset, under the

DOL rules, three (3) tests must be satisfied for an employee to be considered an exempt 

employee: 1) the salary basis test, requiring that the employee receive “a predetermined amount” 

of compensation that is “not subject to reduction because of variations in the quality or quantity 

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 10 of 27
11

of the work performed” by the employee; 2) the salary level test, requiring that the employee 

earn at least $455/week, equivalent to $23,600 per year; and 3) the primary duty test, which 

focuses on whether the employee performs the “primary duty” of an executive, professional or 

administrative employee. 29 C.F.R. §§ 541.602 (salary basis), 541.600 (salary level), 541.700

(primary duty). See, e.g., Acs v. Detroit Edison Co., 444 F.3d 763 (6th Cir. 2006).

The salary level test simply requires that the employee earn at least $455/week, 

equivalent to $23,600 per year, for the exemption to apply. 29 C.F.R. § 541.600. The salary 

basis test provides that “...an employee must be paid on a salary basis[]” within the meaning of 

the DOL regulations. Avery v. City of Talladega, Ala., 24 F.3d 1337, 1340 (11th Cir. 1994); 29 

C.F.R. § 541.602. An employee is considered “paid on a ‘salary basis'” if he regularly receives 

each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or 

part of his compensation, which amount is not subject to reduction because of variations in the 

quality or quantity of the work performed. 29 C.F.R. § 541.602; Hogan, 361 F.3d at 625. The

salary basis of pay is lacking for employees whose “employers have reduced their salaries 

because of how much or how well they worked.” Nicholson v. World Business Network, Inc., 

105 F.3d 1361, 1365 (11th Cir. 1997).

The primary duty test provides that for an employee whose salary exceeds $455/week, 

the exemption applies only where: 1) the employee's primary duty is the performance of exempt 

work -- office or non-manual work directly related to the management or general business 

operations of the employer or the employer's customers[;]” and 2) the employee's “primary duty 

includes the exercise of discretion and independent judgment with respect to matters of

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 11 of 27
12

significance.” 29 C.F.R. § 541.700; Rock v. Ray Anthony Int'l, LLC, 2010 WL 2089636, *2 

(11th Cir. May 26, 2010).

8

 

A. Executive Exemption

An employee qualifies for the Executive Exemption if: 1) he is compensated on a salary 

basis at a rate of not less than $455/week (per § 541.602); 2) his primary duty is management of 

the enterprise in which the employee is employed or of a customarily recognized department or 

subdivision thereof (per § 541.700); 3) he customarily and regularly directs the work of two (2)

or more other employees (per § 541.701); and 4) he has the authority to hire or fire other 

employees, or whose suggestions/recommendations as to the hiring, firing, advancement, 

promotion or any other change of status of other employees are given particular weight. 29 

C.F.R. § 541.100. All of these requirements must be met for the Executive Exemption to apply.

1. Salary Basis

As to “salary basis,” the Housing Board contends that such is met because Plaintiffs’ pay 

was reduced due to absences from work9 and budget-related furlough days -- which they contend 

are allowed actions by public agencies. (Doc. 66 at 32-33). Plaintiffs do not appear to dispute 

that the salary basis was met. Plaintiffs also “do not dispute that they were compensated at a rate 

of not less than $445 a week.” (Doc. 73 at 3). As such, Plaintiffs have conceded that the salary 

basis prong is satisfied for regular work days/periods (non-furlough periods) alleged in the 

 

8 “Factors to consider when determining the primary duty of an employee include, but are not limited to, 

the relative importance of the exempt duties as compared with other types of duties; the amount of time spent 

performing exempt work; the employee's relative freedom from direct supervision; and the relationship between the 

employee's salary and the wages paid to other employees for the kind of nonexempt work performed by the 

employee.” 29 C.F.R. § 541.700(a). Additionally, “employees who spend more than 50 percent of their time 

performing exempt work will generally satisfy the primary duty requirement. Time alone, however, is not the sole 

test, and nothing in this section requires that exempt employees spend more than 50 percent of their time performing 

exempt work. Employees who do not spend more than 50 percent of their time performing exempt duties may 

nonetheless meet the primary duty requirement if the other factors support such a conclusion.” Id. § 541.700(b). 

9 Arguing that Personnel Board Local Act 470 requires that pay be reduced when Plaintiffs took personal 

or sick leave after his/her accrued leave had been exhausted. (Doc. 66 at 32).

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 12 of 27
13

Complaint.

2. Primary Duty as Management

To satisfy the “primary duty is management” prong, a plaintiff’s primary duty is 

management of the enterprise in which the employee is employed or of a customarily recognized 

department or subdivision thereof (per § 541.700).10 The Housing Board contends that primary 

duty test is satisfied by a reading of Plaintiffs’ job descriptions and thus: 

....each plaintiff’s primary responsibility was supervising maintenance personnel 

working in one or more of the building trades, which was work directly related to 

assisting with running MHB’s operations. Each Maintenance Supervisor was responsible 

for: planning and assigning work to the maintenance staff, and inspecting their completed 

work for quality control purposes; administering MHB’s work order system at his/her 

site, including assigning work orders, and closing them in MHB’s system; controlling 

inventory for his/her site; maintaining productivity records on their maintenance staff –

called Time-In-Motion; preparing and/or signing annual Service Ratings for the 

employees under their supervision; dealing with employee complaints or concerns; and 

initiating formal disciplinary action when required...Thus each was engaged in 

management or work directly related to management.

***

Holding independent responsibility for the maintenance operations of an apartment 

complex or group of complexes, the Maintenance Supervisors exercised discretion and 

independent judgment.

(Doc. 66 at 35, 39). Additionally, the Housing Board – relying heavily on the Declaration of 

Neese, the Director of Maintenance (Doc. 66 at 35-36) -- contends that each plaintiff’s primary 

responsibility matched their job description. (Doc. 66 at 35; Doc. 51-25 (Decltn Neese)). 

Specifically, according to Neese, as of 2000, the Housing Board assigned each 

Maintenance Supervisor to an apartment complex or property, and that each plaintiff had 

independent responsibility for maintenance operations at that property, including day-to-day 

repairs, making the units ready between tenants, curb appeal, and performing ongoing capital 

 

10 “Management” includes directing the work of employees; maintaining production records; appraising 

employees’ productivity; handling employee complaints and grievances; disciplining employees; planning the work; 

apportioning the work among the employees; determining the type of materials, supplies, machinery, equipment or 

tools to be used or merchandise to be bought, stocked and sold; and controlling the flow and distribution of materials 

or merchandise and supplies. 29 CFR § 541.102.

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 13 of 27
14

improvements. (Doc. 51-25 (Decltn. Neese)). The maintenance staff assigned to each site 

(maintenance mechanics, painters, and public service workers) reported directly to the 

Maintenance Supervisor for the property. (Id.) The primary job of a Maintenance Supervisor 

was to supervise building and maintenance work in one or more of the building trades, and each 

was responsible for: 1) planning/assigning work to maintenance staff and inspecting completed 

work for quality control purposes; 2) administering the Housing Board’s work order system at 

his site, including assigning work orders and closing them in the system; 3) controlling inventory 

for his site; 4) maintaining productivity records on their maintenance staff – called Time-InMotion; 5) preparing and/or signing annual Service Ratings for the employees under their 

supervision; 6) dealing with employee complaints or concerns; and 7) initiating formal 

disciplinary action when required. (Id.; Doc. 58-1 (Decltn. Bryant)). Additionally, at times, the 

Maintenance Supervisors performed hands-on maintenance, at their own choice, and they 

remained responsible for the supervision of their maintenance operation even when so engaged. 

(Doc. 52-25 (Decltn. Neese)). Moreover, Maintenance Supervisors had responsibility regarding 

after-hours service requests by Housing Board tenants: when tenants called for service afterhours, they received notification from the Housing Board answering service and they were then 

responsible for calling the tenant, determining whether the request justified an after-hours visit, 

and, if so, dispatching the on-call maintenance staff member to perform the maintenance. (Id.)

Further, the productivity records of Plaintiffs Coffman, Criswell, Knight, McCord, Peacock and 

Smiley indicate that each spent more than 50% of his/her time on supervisory duties. (Doc. 51-

25 and 51-26 (Delctn. Neese)).

In stark contrast, Plaintiffs assert that they spent a small fraction of their time performing 

management related duties, and that management was not their primary duty. First, Linda Day, 

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 14 of 27
15

the Director of Housing Management at the Housing Board when Plaintiffs were Maintenance 

Supervisors (through her retirement), asserts that:

• Plaintiffs spent about 10-15% of their time (no more than 20%) managing employees

• Plaintiffs had “little to no input into hiring, firing, promotions, demotions or changing 

the status of any employees who worked at the Housing Board and their suggestions 

and/or recommendations were not given any particular weight [for same]” and

• Maintenance employees worked independently.

(Doc. 75-1 (Decltn. Day). Second, Plaintiffs, through their own Declarations, assert that:

• They spent 10-15% of their time managing employees

• The majority of their time was spent looking at time on work orders

• They did not supervise or control staff work

• They had no independent responsibility for maintenance operations

• They did not make or supervise daily repairs

• They did not supervise or control making the units ready for tenants

• They did not supervise curb appeal and had no say in ongoing capital improvements

• Maintenance staff went out and filled out the orders, returning them to Plaintiffs, who

recorded how much time was spent completing same

• Some picked up garbage/trash off the streets but all other curb appeal work was 

contracted out and they lacked any authority over independent contractors. Some may 

have signed documents noting contractor’s work was complete but had no influence over 

those contractors

• On a daily basis, they came into work, reviewed work orders prepared by someone else, 

and distributed them to maintenance staff and kept up with their time

• They never exercised discretion or independent judgment with significant matters

• They sporadically/occasionally inspected maintenance staff work for quality control, but

did not supervise or control their work and/or have independent responsibility for 

maintenance operations. 

(Docs. 75-2 (Decltn. Coffman), 75-3 (Decltn. Criswell), 75-4 (Decltn. Knight), 75-5 (Decltn. 

McCord), 75-6 (Decltn. Smiley), 75-7 (Decltn. Peacock)).

Clearly then, the parties present dramatically different versions of Plaintiffs’ duties, 

notably the primary duty of each, such that genuine issues of material fact exist. Because all four 

(4) prongs of the executive exemption must be satisfied for it to apply, and there is an issue of 

fact as to the second, the Court need not address the remaining prongs. At this point, the 

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 15 of 27
16

Housing Board’s motion is DENIED.

B. Administrative Exemption

Concerning the Administrative Exemption, an employee may qualify if: 1) he is 

compensated on a salary or fee basis at a rate of not less than $455/week (defined by § 541.602); 

2) his primary duty is the performance of office or non-manual work directly related to the 

management or general business operations of the employer or the employer’s customers

(defined by § 541.700); and 3) the employee’s primary duty includes the exercise of discretion 

and independent judgment with respect to matters of significance (defined by § 541.700). 29 

C.F.R. § 541.200. All three (3) prongs must be satisfied for the exemption to apply. 

Additionally, per Crabtree v. Volkert, Inc., 2012 WL 6093802, *7 (S.D. Ala. Dec. 7, 2012):

... “[t]o qualify for the administrative exemption, an employee's primary duty must 

include the exercise of discretion and independent judgment with respect to matters of 

significance.” 29 C.F.R. § 541.202(a). The regulations emphasize that this is a highly 

fact-bound inquiry. See 29 C.F.R. § 541.202(b) (explaining that “discretion and 

independent judgment” must be evaluated “in the light of all the facts involved in the 

particular employment situation in which the question arises,” and reciting lengthy list of 

relevant factors). Three noteworthy clarifications of the “discretion and independent 

judgment” concept are (i) that the term “implies that the employee has authority to make 

an independent choice, free from immediate direction or supervision;” (ii) that the term 

excludes the performance of “mechanical, repetitive, recurrent or routine work;” and (iii) 

that the employee's primary duty “must be more than the use of skill in applying wellestablished techniques, procedures or specific standards described in manuals or other 

sources.” 29 C.F.R. § 541.202(c), (e).

As to the first prong of salary, Plaintiffs have conceded this prong is satisfied (for nonfurlough weeks). For the second prong, primary duty, such duty must be the performance of 

office or non-manual work directly related to the management or general business operations of 

the employer or the employer’s customers (defined by § 541.700). As stated supra, issues of fact 

surround whether Plaintiffs’ work directly related to management and thus this prong is not 

satisfied on summary judgment. And even assuming arguendo, for purposes of summary 

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 16 of 27
17

judgment, that the Housing Board could satisfy the “directly related to the general business 

operations” alternative of this prong, there exists an issue of fact as to the third prong.

Specifically, the third prong – whether the employee’s primary duty includes the exercise 

of discretion and independent judgment with respect to matters of significance – is also in

dispute. The exercise of discretion and independent judgment implies that the employee has 

authority to make an independent choice, free from immediate direction or supervision. 

However, an employee can exercise “discretion and independent judgment” even if his decisions 

or recommendations are reviewed at a higher level:

the term “discretion and independent judgment” does not require that the decisions made 

by an employee have a finality that goes with unlimited authority and a complete absence 

of review. The decisions made as a result of the exercise of discretion and independent 

judgment may consist of recommendations for action rather than the actual taking of 

action. The fact that an employee’s decision may be subject to review and that upon 

occasion the decisions are revised or reversed after review does not mean that the 

employee is not exercising discretion and independent judgment.

29 CFR § 541.202(c). 

The Housing Board contends that Plaintiffs exercised discretion and independent 

judgment because they held independent responsibility for the maintenance operations of an 

apartment complex or group of complexes. Plaintiffs assert they did not, and specifically and 

repeatedly contend that they exercised no independent discretion or independent judgment. (See

supra; Doc. 75-2 through 75-7 (Decltns. Plaintiffs). As this dispute creates an issue of fact as to 

the third prong, the Housing Board’ motion is DENIED as to this exemption.

C. Combination Exemption

29 C.F.R. § 541.708 provides that “[e]mployees who perform a combination of exempt 

duties as set forth in the regulations in this part for executive, administrative...employees may 

qualify for exemption. Thus, for example, an employee whose primary duty involves a 

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 17 of 27
18

combination of exempt administrative and exempt executive work may qualify for exemption. 

In other words, work that is exempt under one section of this part will not defeat the exemption 

under any other section.” Additionally, the DOL regulations provide for tacking different 

exemptions together for a combined exemption when “(1) an employee performs more than one 

type of work that would be exempt except that (2) neither type of work alone can be termed the 

employee's primary duty, but (3) all of the putatively exempt work taken together constitutes the 

employee's primary duty.” See, e.g., Cobb v. Finest Foods, Inc., 582 F. Supp. 818, 822 (E.D. La. 

1984), aff'd 755 F.2d 1148 (5th Cir. 1985). 

On summary judgment, the Housing Board provides no additional factual support for this 

exemption’s applicability, but instead summarily asserts that it applies. (Doc. 66 at 40).

Presumably, this assertion is based on the purported applicability of certain aspects of the 

executive and administrative exemptions, which the Housing Board briefed in its motion. 

However, because there are genuine issues of material fact concerning the applicability of those

exemptions, see supra, there are likewise issues of fact for the combination exemption which 

“cobbles together” different factors from the those exemptions. See, e.g., Kuntsmann v. Aaron 

Rents, Inc., 903 F.Supp.2d 1258, 1265-1266 (N.D. Ala. 2012) (discussing the cobbling together 

of exemptions to satisfy the combination exemption); Talbott v. Lakeview Ctr., Inc., 2008 WL 

4525012, *8 (N.D. Fla. Sept. 30, 2008) (“[b]ecause of the court's finding that summary 

judgment...is not appropriate for either the administrative or learned professional 

exemptions,...summary judgment as to the application of the combination exemption will also 

be denied[]”). As such, the Housing Board’s motion is DENIED as to this exemption.

V. ADEA and AADEA: The Housing Board11

 

11 Plaintiffs do not allege AADEA/ADEA claims against the Personnel Board. As such, it is ORDERED

that the portion of the Personnel Board’s motion for summary judgment on such claims is MOOT.

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 18 of 27
19

In the Complaint, Plaintiffs allege disparate impact and disparate treatment violations of 

the ADEA and AADEA against the Housing Board as follows: 

Criswell, Coffman, Weaver, Knight, Smiley, Peacock, and McCord were each over the age of 40 

and had each worked for [the Housing Board]...in excess of twenty (20) years.

During the Summer of 2014, MHB, citing financial reasons, sought to terminate, lay off, or 

otherwise rid itself of employees and, with respect to employees in the Classified Service 

including [Plaintiffs]...and sought approval from the MCPB to take such action.

In September 2014, [Plaintiffs]...were informed that they were being laid off which...amounts to 

their termination.

[Plaintiffs]...each had held numerous positions prior to their terminal position of Housing 

Maintenance Supervisor and were qualified and able to perform duties in multiple positions 

including, but not limited to, Public Service Worker 1, Public Service Worker 2, and Maintenance 

Mechanic. Each would have accepted a lower paying job for which they were qualified in order 

to maintain employment; however, none were offered any opportunity to remain employed under 

any circumstances.

The procedure used by MHB, Rule XIII of the Rules and Regulations of the Personnel Board for 

Mobile County, Alabama, and the implementation of that procedure had a disparate impact in that 

it resulted in older employees in the protected class being identified for lay off including 

[Plaintiffs]...

Younger, less qualified employees were not laid off or considered for lay-off.

[Plaintiffs]...maintain that they were treated differently and less favorably than other similarly 

situated but younger employees in the determination of criteria for lay off as well as the 

application of that criteria.

Absent other non-legitimate and/or illegal reasons, [Plaintiffs]...but for their age, would still be 

employed.

(Doc. 69 at 5-6). 

The standards governing AADEA cases are identical to those established for the ADEA. 

See, e.g., Taylor v. City of Demopolis, 2005 WL 3320735, *8 (S.D. Ala. Dec. 6, 2005); Bonham 

v. Mortgage Inc., 129 F. Supp. 2d 1315 (M.D. Ala. 2001). The AADEA provides “the remedies, 

defenses, and statutes of limitations, under this article shall be the same as those authorized by”

the ADEA, with the only noted exception being that plaintiffs are not required to pursue an 

administrative remedy prior to filing suit. Ala. Code § 25-1-29. Id. Thus, the same analytical 

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 19 of 27
20

framework applies to both. See, e.g., Robinson v. Ala. Cent. Credit Union, 964 So.2d 1225, 

1228 (Ala. 2007). 

The ADEA prohibits an employer from discriminating on the basis of age. 29 U.S.C. § 

623(a). Specifically, the ADEA makes it unlawful for an employer to discriminate against an 

employee due to his being 40 years of age or older – i.e., to fail or refuse to hire him or to 

discharge him because of his age. 29 U.S.C. §§ 623(a)(1); Ramsey v. Chrysler First, Inc., 861 

F.2d 1541, 1543-1544 (11th Cir. 1988). A plaintiff may support a claim of age discrimination 

with either direct or circumstantial evidence. Mora v. Jackson Mem'l Found., Inc., 597 F.3d 

1201, 1204 (11th Cir. 2010); Pace v. S. Ry. Sys., 701 F.2d 1383, 1388 (11th Cir. 1983). 

Where there is only circumstantial evidence, courts apply a variation of the framework in 

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., Chapman v. AI Transp., 

229 F.3d 1012, 1024 (11th Cir. 2000); Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 

1354, 1358 (11th Cir. 1999). Under McDonnell Douglas, the plaintiff has the initial burden of 

establishing a prima facie case of age discrimination. Chapman, 229 F.2d at 1024. In an ADEA 

case for failure to hire, a plaintiff must establish that: 1) he was a member of the protected group 

(between the ages of 40–70; 2) he was subject to adverse employment action;12 3) a substantially 

younger person filled the position that he sought or from which he was discharged; and 4) he was 

qualified to do the job for which he was rejected. Id. See also Damon, 196 F.3d at 1359; Hudson 

v. Shaw Environmental & Infrastructure, Inc., 267 Fed. Appx. 892, 893 (11th Cir. 2008). If the 

plaintiff establishes his prima facie case, the employer must articulate a legitimate, 

nondiscriminatory reason for the challenged employment action. Chapman, 229 F.3d at 1024. 

 

12 “An adverse employment action is an ultimate employment decision, such as...failure to hire, or other 

conduct that ‘alters the employee's compensation, terms, conditions, or privileges of employment, deprives him or 

her of employment opportunities, or adversely affects his or her status as an employee.’” Nettles v. LSG Sky Chefs, 

211 Fed. Appx. 837, 838–839 (11th Cir. 2006).

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 20 of 27
21

Then, the plaintiff must show that the employer's stated reason is a pretext for unlawful 

discrimination -- i.e., the plaintiff has the opportunity to come forward with evidence, including 

the previously produced evidence establishing the prima facie case, sufficient to permit a 

reasonable factfinder to conclude that the reasons given by the employer were not the real 

reasons for the adverse employment decision. Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 

1304, 1307 (11th Cir. 2012); Crawford v. City of Fairburn, 482 F.3d 1305, 1308 (11th Cir. 2007); 

Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997). 

A plaintiff may overcome the employer's asserted legitimate reasons “either directly by 

persuading the court that a discriminatory reason more likely motivated the employer or 

indirectly by showing that the employer's proffered explanation is unworthy of credence.” 

Taylor v. Runyon, 175 F.3d 861, 867 (11th Cir. 1999). To meet his burden of showing pretext, 

the plaintiff must rebut all legitimate non-discriminatory reasons that the employer proffers for 

the adverse action. Id.

13 A plaintiff “must meet [the] reason head on and rebut it, and the 

employee cannot succeed by simply quarreling with the wisdom of that reason.” Chapman, 229 

F.3d at 1030. The Court's inquiry, ultimately, “is limited to whether the employer gave an 

honest explanation of its behavior.” Id. A plaintiff's showing that the employer was incorrect in 

its decision is insufficient: if the employer honestly believed the employee engaged in 

misconduct, even if mistaken, no discrimination exists. Elrod v. Sears, Roebuck & Co., 939 F.2d 

1466, 1470 (11th Cir. 1991).

 

13 A plaintiff can accomplish this by pointing to “weaknesses, implausibilities, inconsistencies, 

incoherencies, or contradictions” in the employer's explanation, Brooks v. County Comm’n of Jefferson Cty., Ala., 

446 F.3d 1160, 1163 (11th Cir. 2006), and/or by “either directly by persuading the court that a discriminatory reason 

more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy 

of credence[,]” Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012). Additionally, a plaintiff 

may produce evidence that “permits the jury to reasonably disbelieve the employer's proffered reason.” Steger v. 

Gen. Elec. Co., 318 F.3d 1066, 1079 (11th Cir. 2003). “But a reason cannot...be ‘a pretext for discrimination ‘unless 

it is shown both that the reason was false, and that discrimination was the real reason.'' St. Mary's Honor Ctr. v. 

Hicks, 509 U.S. 502, 515 (1993) (emphasis in original). 

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 21 of 27
22

Further, in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009), the United States 

Supreme Court held that the language “because of” in the ADEA means that a plaintiff has to 

prove that age discrimination is the “but for” cause of the adverse act. Following Gross, the 

Eleventh Circuit reaffirmed the propriety of evaluating ADEA claims based on circumstantial 

evidence under the McDonnell Douglas framework. See e.g., Mora v. Jackson Mem. Fdtn., Inc., 

597 F.3d 1201 (11th Cir. 2010) (explaining that under the ADEA after Gross, an “employer either 

acted ‘because of’ the plaintiff's age or it did not[]”).14 However, “it is a long-recognized tenet of 

tort law that a plaintiff’s injury can have multiple ‘but-for’ causes, each of which may be 

sufficient to support liability. Requiring proof that a prohibited consideration was the ‘but for’ 

cause of an adverse job action does not equate to a burden to show that such consideration was 

the ‘sole’ cause....This remains so even after Gross. Moreover, a plaintiff is authorized to plead 

and pursue alternative theories of recovery, even if they are inconsistent....” Bailey v. City of 

Huntsville, Ala., 2012 WL 2047672, *9 (N.D. Ala. 2012). Thus, Gross does not place a 

heightened evidentiary requirement on ADEA plaintiffs to prove age was the “sole” cause of the 

adverse employment action. Pearson v. Lawrence Med. Ctr., 2012 WL 5265774 (N.D. Ala. Oct. 

24, 2012); Goodridge v. Siemens Energy, Inc., 276 F.R.D. 540, 542 and n. 1 (N.D. Ala. 2011); 

Ross v. Renaissance Mont. Hotel & Spa at the Convention Ctr., 2012 WL 1030323, *4-5, report 

adopted as modified, 2012 WL 1032618 (M.D. Ala. Feb. 27, 2012); Archie v. Home–Towne 

Suites, LLC, 749 F.Supp.2d 1308, 1315 (M.D. Ala. 2010); Freeman v. Koch Foods of Ala., 2010 

WL 9461668, *2 (M.D. Ala. Jun. 15, 2010); Collins v. Fulton Cty. Sch. Dist., 2012 WL 

7802745, *17-18 (N.D. Ga. Dec. 26, 2012).

 

14 In Mora the Eleventh Circuit stated that an ADEA plaintiff must now “establish ‘but for’ causality,” 

such that “no ‘same decision’ affirmative defense can exist: the employer either acted ‘because of’ the plaintiff's age 

or it did not.” Id. at 1204 (citing Gross, 557 U.S. at 180). The Eleventh Circuit concluded, it was unnecessary to 

consider the district court's analysis of the employer's “same decision” affirmative defense. Id. at 1204. 

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 22 of 27
23

Finally, in Sims v. MVM, Inc., 704 F.3d 1327, 1332-1333 (11th Cir. 2013), the Eleventh 

Circuit clarified that the McDonnell Douglas framework is not the sine qua non for a plaintiff to 

survive summary judgment in a discrimination case. See Smith v. Lockheed Martin Corp., 644 

F.3d 1321, 1328 (11th Cir. 2011). Instead, “the plaintiff will always survive summary judgment 

if he presents circumstantial evidence that creates a triable issue concerning the employer's 

discriminatory intent.” Id. A triable issue of fact exists “if the record, viewed in a light most 

favorable to the plaintiff, presents ‘a convincing mosaic of circumstantial evidence that would 

allow a jury to infer [ ] intentional discrimination by the decisionmaker.’” Id. Nevertheless, the 

burden of persuasion always remains on a plaintiff in an ADEA case to proffer evidence 

sufficient to permit a reasonable fact finder to conclude that the discriminatory animus was the 

“but-for” cause of the adverse employment action. Gross, 557 U.S. at 176.

For disparate treatment, such a claim arises “when an employer treats some people less 

favorably because of a protected characteristic, such as race, religion, sex, or in our case, age. To 

prove this type of claim, a plaintiff must establish that the employer had the intent to 

discriminate.” Villarreal v. R.J. Reynolds Tobacco Co., 806 F.3d 1288, 1293 (11th Cir. 2015). 

“When a plaintiff alleges disparate treatment, ‘liability depends on whether the protected trait 

(under the ADEA, age) actually motivated the employer's decision.’ That is, the plaintiff's age 

must have ‘actually played a role in [the employer's decisionmaking] process and had a 

determinative influence on the outcome.’” Reeves v. Sanderson Plumbing Products, Inc., 530 

U.S.133, 141 (2000) (citations omitted). 

For disparate impact, such a claim arises when an employer “uses ‘practices that are 

facially neutral in their treatment of different groups but that in fact fall more harshly on one 

group than another[]’ [--] [n]o proof of discriminatory intent is required for disparate impact 

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 23 of 27
24

claims.” Villarreal, 806 F.3d at 1293. The plaintiff must ultimately show statistical evidence that 

the employment practice impacts members of a protected group. E.E.O.C. v. Joe's Stone Crab, 

Inc., 220 F.3d 1263, 1274 (11th Cir. 2000). A prima facie case of age discrimination based on 

disparate impact requires a plaintiff to show: 1) a specific, facially-neutral employment policy or 

practice; 2) a significant statistical disparity among members of different [age] groups; and 3) a 

causal nexus between the specific policy or practice and the statistical disparity. Cardelle v. 

Miami Beach Fraternal Order of Police, 593 Fed. Appx 898, 901 (11th Cir. 2014). See also

Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 99 (2008).

On summary judgment, Plaintiffs conclusorily address their AADEA/ADEA claims in a 

seven (7) sentences, failing to submit, cite, or reference any evidence in support:

Plaintiffs....were all within the protected class and older than employees who were 

maintained in the position of maintenance mechanic, the position to which they were 

qualified to assume and had, in fact, worked for years prior to being promoted to 

Supervisor. Rather than allow Plaintiffs to assume the maintenance mechanic position 

and displace younger, less senior employees who were not as skilled as Plaintiffs, 

the...[Housing Board] opted for their lay off. Defendant [Housing Board] at all times 

was aware of the ages of Plaintiffs and the obligations under the acts that prohibit 

employers from age discrimination in employment.

(Doc. 73 at 13-14). Plaintiffs’ complete failure to submit and/or cite to any evidentiary support, 

to assert any factual allegations (e.g., direct or circumstantial evidence, age-based 

comments/statements, identification of similarly situated younger employees treated more 

favorably, statistical evidence, examples of age bias, etc.) and/or to provide any materials in 

support, undermines their AADEA/ADEA claims to the point of abandonment.15 

 

15 “Pursuant to Eleventh Circuit case law, a plaintiff's failure to support a claim constitutes abandonment 

of that claim. Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 

2000) (“[F]ailure to brief and argue [an] issue during the proceedings before the district court is grounds for finding 

that the issue has been abandoned[]”); Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir. 2001) (claim that 

was included in complaint but not again raised until the plaintiff's supplemental reply brief is abandoned)[]” Davis 

v. Edwards Oil Co. of Lawrenceburg, Inc., 2012 WL 5954139, *4 (N.D. Ala. Nov. 28, 2012). See also generally

Road Sprinkler Fitters Local Union No. 669 v. Independent Sprinkler Corp., 10 F.3d 1563, 1567 (11th Cir. 1994) 

(same); Floyd v. Home Depot USA, Inc., 274 Fed. Appx. 763, 765 (11th Cir. 2008) (same); Resolution Trust Corp. 

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 24 of 27
25

Moreover, even if plaintiff has established a prima facie case, the Housing Board has 

articulated a legitimate, nondiscriminatory reason for the challenged employment action: severe 

funding cuts obligated the Housing Board to make equally severe budget cuts, including 

imposing furlough days and reducing its force by restructuring its maintenance operations and 

eliminating middle-management. Plaintiffs have failed to even attempt to show that this reason 

is pretextual or unworthy of credence. 

As a result, for disparate treatment, the Court is unable to piece together a “convincing 

mosaic” (Smith, 644 F.3d at 1328) from which a reasonable jury could infer an unlawful 

discriminatory intent in the Housing Board’s decisions. Plaintiffs did not present any evidence 

of age discrimination, much less any such evidence tying the Housing Board’s decisions to age 

bias. See, e.g., Connor v. Bell Microproducts-Future Tech, Inc., 492 Fed. Appx. 963, 967 at n. 1 

(11th Cir. 2012) (finding insufficient evidence of age discrimination under the Smith standard). 

With regard to disparate impact, Plaintiffs have cited no employment policy or practice, no 

significant statistical disparity among members of different age groups, and no causal nexus 

between a policy/practice and any alleged statistical disparity. Accordingly, the Housing Board’s 

motion on Plaintiffs’ AADEA/ADEA claims is GRANTED.

VI. State Law Claims of Plaintiffs Coffman, Criswell, Knight, McCord, Peacock and 

Smiley16

Plaintiffs allege breach of contract, intentional misrepresentation/fraud, promissory fraud, 

promissory estoppel and equitable estoppel. (Doc. 69 at 6-14). Defendants move for summary 

judgment as to these claims, on a variety of grounds that are well developed and persuasive. 

(Doc. 66 at 13-25 and Doc. 55 at 11-20). 

 

v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (same).

16 Plaintiff Weaver dismissed his state law claims. (Docs. 50, 57).

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 25 of 27
26

However, in response to summary judgment, Plaintiffs engage in no discussion of the

legal elements for these claims and only reference them once, collectively, as their “common law 

claims.” Rather Plaintiffs argue, most relevantly in support of their breach of contract claim, 

that: 1) Plaintiffs received their jobs as maintenance supervisors through a promotion; 2) there is 

no “functional” difference in a promotion and an appointment through the open competitive 

process; and 3) Plaintiffs could have been demoted instead of laid-off.

As to Plaintiffs’ contention that they received their jobs through promotion, there are no 

facts to support this claim. In contrast, the Defendants have presented evidence that the 

Plaintiffs were appointed to their jobs through an open competitive process (meaning the general 

public could apply) as opposed to a promotional test (which is limited to current employees). 

(Doc. 66 at 9). 

Moreover, Plaintiffs’ contention that there is no “functional” difference between getting a 

job through a promotional test and getting a job through open competitive process is of no 

moment. Whether it is sensible to distinguish between the methods is not the issue. The fact is, 

the Personnel Board Rules do distinguish between the methods and provide additional rights for 

jobs obtained through a promotional test. Along the same lines, it also does not matter whether 

plaintiffs “could” have been demoted. The question is whether they had a right to be demoted as 

opposed to laid-off. Because the Plaintiffs fail to adequately support their claim that they were 

promoted “through a promotional test,” their claim that Defendants breached a contract by 

failing to demote rather than lay-off the Plaintiffs fail. 

Plaintiffs do not specifically address the remaining state law claims. Moreover, Plaintiffs 

do not address the summary judgment arguments raised by Defendants concerning these claims. 

As previously stated, the Court finds the arguments of the Defendants persuasive and adopts the 

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 26 of 27
27

reasoning found in Doc. 66 at 13-25 and Doc. 55 at 11-20 as the finding of the Court. As such, 

the Defendants’ respective motions on these claims is GRANTED.

VII. Conclusion

As such, it is ORDERED that: 

1) the Housing Board’s motion for summary judgment (Docs. 51-53, 66) is GRANTED 

in part and DENIED in part as follows: DENIED as to Plaintiffs’ FLSA claims;

17 GRANTED 

as to Plaintiffs’ AADEA/ADEA claims; 18 and GRANTED as to Plaintiffs’ state law claims for

breach of contract, intentional misrepresentation/fraud, promissory fraud, promissory estoppel 

and equitable estoppel; and 

2) the Personnel Board’s motion for summary judgment (Docs. 54, 55, 58, 59) is

GRANTED in part and MOOT in part as follows: MOOT as to Plaintiffs’ FLSA claims;19

MOOT as to Plaintiffs’ AADEA/ADEA claims;

20 GRANTED as to Plaintiffs’ state law claims 

for breach of contract, intentional misrepresentation/fraud, promissory fraud, promissory 

estoppel, and equitable estoppel.

Thus, only the FLSA claims of Criswell, Coffman, Knight, McCord, Peacock and 

Smiley, against the Housing Board remain in this case to proceed to trial.

DONE and ORDERED this 23rd day of February 2016. 

/s/ Kristi K. DuBose 

KRISTI K. DuBOSE 

UNITED STATES DISTRICT JUDGE

 

17 Excluding Weaver as he previously dismissed his FLSA claim against the Housing Board.

18 Excluding Weaver as he previously dismissed his AADEA/ADEA claims against the Housing Board.

19 Excluding Weaver as he previously dismissed his FLSA claim against the Personnel Board.

20 Excluding Weaver as he previously dismissed his AADEA/ADEA claims against the Personnel Board.

Case 1:14-cv-00447-KD-N Document 81 Filed 02/24/16 Page 27 of 27