DOCUMENT 93, # BLECTRONICALLY FILED (2) lovien2015 3357 PM O1-C¥-2014-501487.00 ‘CIRCUIT COURT OF JERFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA BIRMINGHAM DIVISION SMITH HARRINDA, STREET MARION, Plaintiffs, Case No. CV-2014-901437.00 v. ‘THE BIRMINGHAM CITY SCHOOL BOARD, CRAIG WITHERSPOON, ARTHUR WATTS, WOODFIN RANDALL, ARTHUR WATTS) COLLINS SHERMAN JR. ET AL, Defendants. PLAINTIFFS’ BRIEF INS F L SUMMARY JUDGMENT AS TO COUNT ONE SEEKING DECLARATORY JUDGMENT, WRIT OF MANDAMUS. AND INJUNCTIVE RELIEF COMES NOW, Plaintiffs Harrinda Smith and Marion Street, by and through the undersigned counsel, and pursuant to Rule 56 of the Alabama Rules of Civil Procedure submit herewith Plaintiffs’ Brief in Support of their Motion for Partial Summary Judgment as to Count One, Plaintiffs also rely upon the following evidentiary submissions: their individual affidavits and the deposition testimony of Superintendent of Schools Craig Witherspoon, Chief Financial Officer Arthur Watts (“CFO”), Human Resources Director Jeffery McDaniels, and former Birmingham Board member Virginia Volker. All deponents listed have personal knowledge of the enactment and implementation of the 2014 Classified Salary Schedule, CFO Watts and Superintendent Witherspoon (who have recently resigned) are sued in their individual capacities. All other defendants (current Birmingham Board members, School Superintendent!, Chicf Financial Officer’) and are sued in their official capacities. ) Kelley Castlin-Gacutan was recently appointed to the Superintendent pos ? At this time, Defendant Watts’ successor has not been named.DOCUMENT 93 This suit is based upon an actionable claim for relief as set forth in Plaintiffs” Second Amended Complaint. As a result of the actions of the named defendants, Plaintiffs Smith and Street have incurred a significant salary loss as a result of the defendants’ failure to follow the express language of the 2014 Classified Salary Schedule. According to the salary matrix adopted by the Birmingham Board of Education “STEP” placement on the salary matrix is determined (categorized) by “years of experience.” Plaintiffs were at all times relevant “secretary/bookkeepers” on the Cl schedule with over a decade of experience with the Birmingham City Schools. At the direction of Defendants Witherspoon and CFO Watts, Plaintifiis were not given credit for “years of experience” in determining their respective salary STEP assignment. Instead, Plaintiffs were assigned to a STEP that corresponded to the nearest STEP that coincided (without loss of pay) with their salary on the 2013 Classified $ lary Schedule, In contrast, newly hired or rehired sectetary/bookkeepers were given credit for “years of experience” as were secretarial personnel assigned to the Central Office. This disparate practice was not an approved policy of the Birmingham Board of Education, nor was this “practice” communicated is writing to the Birmingham Board or to the State Department of Edu ion. Plaintiffs filed complaints with the Director of Human Resources Jeffrey McDanicls, Superintendent Witherspoon, and CFO Watts to no avail. This litigation was filed afer no action was taken to remedy these arbitrary and unlawful departures from the duly enacted 2014 Classified Salary Schedule. Plaintiffs seck a declaratory judgment against all named defendants (current Superintendent, current Chief Financial Officer, and current Board members) declaring that (1) Defendants have wrongfully denied Plaintiffs Harrinda Smith and Marion Street credit for “years of experience” in determining their respective salary as required under the 2014 Classified SalaryDOCUMENT 93 Schedule and (2) that Plaintiffs are owed a sum ecriain difference in the amount they were paid and the emount they should have been paid had they been given credit on the pay matrix for “years of experience.” PlaintifiS further seck a Writ of Mandamus and injunctive relief to enforce the declaratory relief sought: payment of liquidated sum owed to Plaintifs based upon past services rendered for which they were not paid in accordance with their contract; immediate placement on the correct salary STEP based upon “years of experience”; and further relief necessary to enforce the Declaratory Judgment, Plaintiffs further seek judgments for economic damages against Defendants former Superintendent Witherspoon and former CFO Watts. 1. BRIEF SUMMARY OF UNDISPUTED MATERIAL FACTS (1) Defendants Superintendent Witherspoon, Chief Financial Officer Watts and Human Resource Director Jeffery McDaniels were legally obligated by Birmingham Board policy and by Alabama State law to implement the duly enacted 2014 Classified Salary Schedule. (MeDaniels Depo. at 87; Witherspoon Depo. at 16-17, 28-29, 117 and Depo. Exh. 5-6; Waits Depo. at 14-15, 21-22, 36 & 54 and referenced Exhs. 4 & 6; Volker Depo. at 17 and referenced Bxhs. 2-3.) (2) The 2014 Classified Salary Schedule expressly stated that STEP placement is determined (“categorized”) by “years of experience.” STEP placement on the previous salary schedule (The 2013 Classified Salary Schedule) also stated that STEP placement was categorized by “years of experience.” (McDaniels Depo, at 17-21, 29, 26-27, 30-31, 35 & Depo. Exhs. 2 & 3 atpg. 3.) (3) Defendants Witherspoon and CFO Watts possessed no discretion as to STEP placement because the duly enacted 2014 Classified Salary schedule expressly stated that STEPSDOCUMENT 93 are “categorized” as “years of experience.” (Watts Depo. at 21-23, 36, 38-39 and referenced Exhibit 12 at pgs. 3, 14-15.) (4) CEO Watts certified to the Birmingham Board of Education that sufficient funds were in the 2014 Budget to pay classified personnel in accordance with the 2014 Classified Salary Schedule, (Witherspoon Depo. at 56-57; Watts Depo. at 18, 22-23, 36, 45 & 54 and referenced Exhibit 1) (5) CFO Watts did not communicate in writing to the Birmingham Board members, to the State Department of Education, or affected classified personnel that (with the implementation of the 2014 Classified Salary Schedule) “years of experience” would not determine STEP placement for currently employed classified personnel. (Witherspoon Depo. at 119-120; Watts Depo. at 32, 40, 62-63; Volker Depo. at 28-30, 31-34, 38-39.) (©) Instead, STEP assignments for classified personnel (including Plaintiffs Harrinda ‘Smith and Marion Street) STEP were arbitrarily lowered to the salary STEP that closely approximated their previous 2013 salary rather than to the STEP that comtesponded to their “years of experience.” (MeDaniels Depo. at 56-57, 83-84, 95; Witherspoon Depo, 40-44, 113; Watts Depo. at 19-20.) (7) Jeffrey MeDaniels, the Director of Human Resources, admitted that some classified personnel were not placed on the STEP they were due because it would diminish the “reserve fund” that the State Department of Education required during the period the Birmingham Board ‘was under State supervision, (McDaniels Depo. at 140.) (8) Both Superintendent Witherspoon and CFO Watts admitted that at the time the 2014 Classified Salary Schedule was recommended for passage, they did not intend to adhere to theDOCUMENT 93 provision that STEP placement is categorized as “years of experience.” (Witherspoon Depo. at 43-45; Watts Depo. at 31.) (9) Plaintiffs Smith and Street, who were serving in secretarial positions, were not the subject of a promotion during the petiod of the implementation of the 2014 Classified Salary Schedule, (See generally Affidavits of Smith and Street.) (0) With the implementation of the 2014 Classified Salary Schedule, Plaintiff Smith’s STEP placement was lowered from STEP 11 (reflecting actual years of experience) to STEP 1, which corresponds to no experience, The salary difference between STEP 11 and STEP 1 is $5,477.00. (McDaniels Depo. Exh. 10, BOE stamped pg, 291; see generally Smith Affidavit.) (11) With the implementation of the 2014 Classified Salary Schedule, Plaintiff Street's STEP placement was lowered from STEP 14 (reflecting actual yeats of experience) to STEP 2, which corresponds to two years of experience, The salary difference between STEP 14 and STEP 2s $5,643.00, (McDaniels Depo. at 120-121; see generally Affidavit of Street) (12) In contrast, newly hired (or rehired) classified personnel were assigned fo the STEP that corresponded to their respective “years of experience.” (McDaniels Depo, at 37-43, 44-45, 60-62, and referenced depo. exhibits 4-9.) (13) Also in contrast, STEP placement for classified personnel assigned to the Central Office retained their former (2013) STEP placement, that is according to their respective “years of experience.” (McDaniels Depo. at 98-104 and referenced deposition exhibit 11.) (14) Classified personnel were assigned to the STEP that closely corresponded (yet afforded an increase) to their 2013 salary so that they would not be able to pursue an appeal of their STEP placement on the 2014 Classified Salary Schedule, (MeDanicls Depo. at 83-85; Witherspoon Depo. at 115.)DOCUMENT 93 (15) Plaintiffs Smith and Street promptly registered their concems about improper placement on the 2014 Classified Salary Schedule to Superintendent Witherspoon, CFO Watts, and HR Director McDaniels. (Watts Depo. at 46; MeDaniels Depo. at 123; see generally Affidavits of Smith and Street.) Il SUMMARY OF RECORD EVIDENCE A. Testimony of Superintendent Craig Witherspoon 1. Dr, Craig Witherspoon served as the Birmingham City Superintendent of Schools during the period March 22, 2010 until July 2015. (Witherspoon Depo. at 17.) Witherspoon served as the Chief Executive Officer, reporting directly to the Birmingham Board of Bducation. (Witherspoon Depo. at 25-26). 2. A newly constituted Board of Education was installed in October 2013, all current members (elected or re-elected) are named parties sued in their official capacities. (Witherspoon Depo. at 18-19). 3. Throughout the period of Witherspoon’s employment, Asthur Watts served as the Chief Financial Officer and as such reported to Superintendent Witherspoon and members of the Birmingham Board of Education, (Witherspoon Depo. at 19-20.) 4, Witherspoon testified that Human Resources (“HR”) and CFO Arthur Watts determined placement on the salary schedule for all employees. (Witherspoon Depo. at 20). He described it as a “process” generated between “Finance and HR” thet is “moved to the Superintendent for recommendation to the Board.” (Id) 5. On September 10, 2013, with the recommendation of Superintendent Witherspoon (and with the certification of CFO Watts), the Birmingham Board approved the 2014 Classified Salary Schedule, (Witherspoon Depo. at 16-17, 28-29; Witherspoon Depo. Exh, 5-6). SuperintendentDOCUMENT 93, Witherspoon stated the State Department of Education and State Superintendent “approved or had knowledge” of the 2014 Classified Salary Schedule. (Witherspoon Depo. at 117.) 6. Superintendent Witherspoon testified that from @ budgetary standpoint, the funds necessary were budgeted to pay in accordance with salary schedules duly enacted by the Birmingham Board. (Witherspoon Depo. at 56-57.) 7. Superintendent Witherspoon further testified that when CFO Watts affixed his signature it signified that “fom a budgetary standpoint that the district has the funds to pay on the recommended salary schedule and supplements.” (Id. At 56.) & Witherspoon admitted that for currently employed clerical employees (secretaries and clerks assigned to Schedule C1 & C2), STEP assignment was determined, not by “years of experience” but instead were “moved” to a STEP that approximated (without any pay loss) their previous 2013 salary. (Witherspoon Depo. at 115). 9. Witherspoon testified that while this “practice” was not memorialized in any written Board “policy,” it was used so that curently employed clerical personnel would not lose any money from their salary transition to the 2014 Classified Salary Schedule. (Witherspoon Depo. at 40-44, 115) 10. Witherspoon conceded that this pay “practice” was never communicated in writing to affected personnel, (Witherspoon Depo, at 119-120.) 11. Witherspoon further conceded that he never communicated this practice” (of ignoring “ycars of experience” in the salary matrix) to members of the State Department team overseeing the Birmingham School System during the period following the 2012 RIF. (Witherspoon Depo. at 120.)DOCUMENT 93, 12, Witherspoon testified that he was “not aware” of “making statement” informing the Birmingham Board that currently employed clerical personnel would not be given eredit for years of experience when determining their STEP placement. (Witherspoon Depo. at 42-43.) 13, Witherspoon admitted that when he made the recommendation to the Birmingham Board to enact the 2014 Clerical Salary Schedule, he knew that STEP placement for current clerical staff would not be determined by “years of experience.” (Witherspoon at 43-45.) B. Testimony of Arthur Watts 1, Arthur Watts began his employment with the Birmingham Board of Education on April 1, 2002 as its Chief Financial Officer (“CFO”). He recently tendered his resignation effective September 30, 2015. (Watts Depo. at 10.) ‘Watts acknowledged that as a CFO, Ala, Rules of The State Department of Education Chapter 290. -5 and Ala. Code §16-13a-5 govern his duties and responsibilities. (Watts Depo. at 14-15; Watts Depo. Exh. 4.) 3. Watts admitted as a CFO that he has a fiduciary responsibility to the Birmingham Board of Education and an administra /e responsibility to its Superintendent. (Watts Depo. at 15-16; see Depo, Exh, 4, for referenced State Statute.) 4. Watts supervised the Birmingham Board’s Payroll Director, John Lewis, who recently resigned his position (as did Watts, Witherspoon and MeDaniels.). (Watts Depo. at 17.) Watts explained that in accordance with Birmingham Board Policy 3.8.1, salary rates or compensation are included in a schedule developed and adopted by the Board in accordance with slate law. (Watts Depo. at 21-22; see Watts Depo. Exh. 6, for referenced copy of Birmingham Board Policy.)DOCUMENT 93 6. The Birmingham Board approved the 2014 Classified Salary Schedule on September 10, 2013. The 2014 Classified Salary Schedule includes two newly enacted Clerical Schedules: C1 and C2. Secretarial and clerical personnel were reduced to 7 LEVELS on the pay matrix. (Watts Depo at 21-23, 38-39; for copies of C1 and C2 schedules, see Watts Depo. Exh. 12 at pgs. 14-15; see also Watts Exh. 7 for copy of Board Agenda dated October 8, 2013.) 7. Prior to the adoption of the 2014 Classified Salary Schedule, CFO Watts certified (August 29, 2013) to the Birmingham Board that there were sufficient funds budgeted to pay in aceordance with the 2014 Classified Salary Schedule. (Watts Depo. at 18, 22-23, 45; Watts Depo. Exh. 7.) 8, Watts admitted that he had a fiduciary duty to the Birmingham Board to follow the duly enacted 2014 Classified Salary Schedule. (Watts Depo. at 36, 54). 9. Watts admitted that at the time he recommended the passage of the 2014 Classified Salary Schedule, he did not intend to place currently employed clerical personnel in accordance with “years of experience.” (Watts Depo. 31.) 10, Watts claimed that although he put nothing in writing, it was a known “procedure” to place each existing employee on a STEP that provided a higher salary so that the employee would not “lose any money” when a newly adopted schedule is adopted. (Watts Depo. at 34-35, 40, 62-63.) 11. Watts thought that someone—though he could not remember who—told him this was the practice; “I just understood that to be a practice.” (Watts Depo. at 35.) 3§Q: Do you as CFO not have to certify under oath or some other measure, don’t you have to certify that all employces are correctly placed on the salary schedule that’s in effect? ‘A: On sure, I state that. Oh yes. I mean, when we adopt a budget, present the budget to the Board, certainly we take into account all employees salaries and the salary schedule they are on. (Watts Depo at p 54).DOCUMENT 93 12, Watts testified that Human Resources staff looked at every secretary's current 2013 salary and on that basis assigned STEP placement on the 2014 Classified Salary Schedule. (Watts Depo. at 19-21.) 13, Watts conceded that he did not write Birmingham Board members or State officials informing them that “years of experience” would not govern the STEP placement of currently employed classified personnel in accordance with the 2014 Classified Salary Schedule.* (Watts Depo. at 32, 62-63.) 14, Plaintiff's Smith and Street immediately complained to CFO Watts that they were not being given oredit for “years of experience.” Watts admitted that he never sat down with them, nor did he send them an e-mail explaining this claimed “practice” of denying currently employed personnel credit for years of experience. (Watts Depo. at 46.) 15. CFO Watts knew that Plaintiffs Smith and Street had been the subject of the 2012 RIF and as a result suffered a salary loss. (Watts Depo. at 49.) 16. Watts contends that Plaintiffs Smith and Street are not due any money because “categorized” does not mean “equal” to years of experience. (Watts Depo. at 52-53 & 67.) C. Testimony of Jeffery MeDaniels, J.D. 1. Jeffrey McDaniels, who holds a law degree, testified that he is familiar with employment and contract law. MeDaniels served as the Birmingham Board's “top position” in the Department of Human Resources for two separate periods: 2007-2009 (Executive Director of Human Resources) and May 2013-December 2014 (Human Resources Officer). In either capacity he **A: No, What I would say to you, though, is that when the State created those new salary schedules to go back and put employees on a step based on their years of experience would have totally undone everything that we tried to do as it relates to the reduetion in force. Tmean, we ‘would have saved the funds that the State had required and it's a good chance that we would not have met that requirement, the 16.2 million dotlar requirement that the State had set.” (Watts Depo. at 32-33.) 10DOCUMENT 93 reported directly to Bitmingham Superintendent Craig Witherspoon. (McDaniels Depo. at 9-10, 12-14). MeDaniels resigned in December 2014. (McDaniels Depo. at 106). 2. MeDaniels conceded that he was aware that, under Alabama law, a local school district must enact salary schedules for all personnel and after having done so must adbere to these duly enacted salary schedules. (McDaniels Depo. at 87). 3. MeDaniels verified that he is familiar with the duly enacted 2013 Classified Salary Schedule and the 2014 Classified Salary Schedule. (MeDaniels Depo. at 16-17, & 28; for copies of referenced salary schedules, see Depo. Exh. 2 & 3). 4. McDaniels acknowledged that the Classified Salary Schedule governs the pay practices for all classified personne! employed by Birmingham City Schools. The 2014 Classified Salary Schedule states in relevant part: “Years of experience are categorized as ‘STEPS’ on the classified salary schedule. Experience for support employees will be granted based upon public education experience in this system, other public education experience in the State of Alabama, or other public education outside the state.” (MeDaniels Depo. Exhs. 2 & 3 at pg. 3; MeDanicls Depo. at 17-21, 29), The 2013 Classified Salary Schedule contained the identical language as to STEP assignment, 5. In September 2012, the Birmingham Board approved the 2013 Classified Salary Schedule. McDaniels testified that pursuant to the 2013 Classified Salary Schedule there were two factors that determine placement within the salary matrix: years of experience (STEPS) and category of personnel (for example, secretaries, community schools, custodial) (LEVELS). (MeDaniels Depo. at 26-27 & Depo. Exh, 2.) 6. In October 2013 (effective July 2013), the Birmingham Board approved the 2014 Classified Salary Schedule. The 2014 Classified Salary Schedule introduced two new schedules WlDOCUMENT 93 pertaining to clerical and secretarial personnel: NEW CLERICAL SCHEDULE C1 AND C2. ‘These schedules reduced the number of “categories” (thet is salary LEVELS) of clerical and sectetarial personnel ftom 18 to 7. (MeDaniels Depo. Bxh, 3 at 14-15; MeDaniels Depo. at 30- 31, & 35). Based upon Schedule CI (a newly hired school seeretary/bookkeeper with 10 years of previous experience if assigned to a K-8 & MS school) would be salaried at $36,587.00, corresponding to STEP 10-12, (MeDaniels Depo. at 32-33; Depo. Exh. 3 at pg. 14), 7, MeDaniel testified that CFO Watts said that with the implementation of the 2014 Classified Salary Schedule currently employed clerical personnel would be assigned to STEPS that were closest to what they were making the previous year, without loss of salary, (McDaniel Depo. at 95). 8. MeDaniels admitted that classified employees who were currently employed were placed on a STEP approximating their 2013 salary without loss of pay. In so doing, MeDaniels explained that this would avoid any due process issues: “We were not taking any money away from her, which would have invoked her due process right because it was outside of reduction in force.” (MeDaniels Depo. at 83-85). 9. MeDaniels explained the process of assigning secretaries to the salary matrix: his staff and Payroll looked only at their previous salary and the mumber of workdays of their respective positions and not “years of experience”. (MeDaniels Depo. At 56-57). 10. McDaniels admitted that according to the official pay records maintained by Human Resources, (Personnel Action Form, “PAF”), Plaintiff Marion Street was salaried on STEP 14 of the 2013 Classified Salary Schedule, reflecting her actual years of “experience” with the Birmingham Board. Her LEVEL assignment reflected her work assignment as an Elementary School Secretary on an eleven-month contract, (MeDaniels Depo. at 120-121; Depo. Exh. 12 atDOCUMENT 93 BOE stamped pg, 423-424). On September 28, 2013, with the implementation of the 2014 Classified Salary Schedule, Plaintiff Street was reduced from salary STEP 14 to STEP 2 for payroll purposes, STEP 2 rate of pay is $31,675.00, STEP 14 rate of pay is $37,318.00. (See generally Street Affidavit attached hereto.) 11, MeDaniels admitted that, according to the Personnel Action Forms, Plaintiff Harrinda Smith was on STEP 11 on the 2013 Classified Salary Schedule, reflecting 11 actual years of “experience” with the Birmingham Board, (McDaniels Depo. Exh, 10 at BOE stamped document pg. 291-292). On September 28, 2013, with the implementation of the 2014 Classified Salary Schedule, Plaintiff Smith was reduced from salary STEP 11 to salary STEP 1 (McDaniels Depo. Exh. 10, BOE stamped pg. 291). The salary for STEP 1 is $31,110.00. The salary for STEP 10-12 is $36,587.00. (See generally Smith Affidavit, attached hereto.) 12, McDaniel denied any role in payroll process, stating “someone else” would have to interpret what was meant by Birmingham Board policy: “Years of experience are categorized as ‘STEPS’ on the Classified Salary Schedule.” (McDaniels Depo. at 15, 58-59, & 134), 13, According 1o official pay records (PAF’s) newly hired secretarial/clerical personnel were placed on STEPS according to “years of experience”. (MeDaniels Depo. Exh. 7 & 9, Byron Brewer and Timtonya Bryant, both new hires with no secretarial experience, were salaried on STEP I ($31,110.00). In contrast, in the same time period, Plaintiff Smith, an eleven-year secretarial employee was assigned to STEP 1 and salaried at $31,110.00, (McDaniels Depo. Exb.10, BOE stamped page 291); see also MeDaniels Depo. Exh. 8 at BOE pg, 630, pertaining to Pamela Woods, a newly hired bookkeeper who was placed on STEP 1). 14. MeDanicls also admitted that former classified employees rehired in late 2013 were given credit for years of experience on the 2014 Classified salary Schedule, In October 2013, Jessie 13DOCUMENT $3, Lee, was rehired and assigned to STEP 9; (McDaniels Depo. Exh. 4 at BOE 583 and 580 and MeDaniels Depo. at 37-43.) Patricia Williams, recalled effective August 13, 2013, was assigned to STEP 9 and with the implementation of the new 2014 salary schedule in August 2013 was assigned to STEP 10, that is given credit for 10 years of experience, (McDaniels Depo, Exh, 5 and McDaniels Depo. at 44-45). Rubystine Hairston, recalled on August 13, 2013 and with the implementation of the 2014 Classified Salary Schedule was assigned to STEP 10. (MeDaniels Exh, 6 at BOE pg. 643 and McDaniels Depo. at 60-62). 15, Secretaries assigned to the Central Office were not denied credit for years of experience with the implementation of the 2014 Classified Salary Schedule. (e.g. Maria Welch, MeDaniels Depo. Exh. 11 at BOE stamped 621-622: McDaniels Depo. at 98 & 104). 16. MeDanicls admitted that the decision to place some secretaries on a STEP that did not reflect years of experience was based on financial considerations of assuring a reserve fund required by the State: “I mean I can’t say that we looked at all 200 (referring to the number of clerical and secretarial employees), but relative to what the financial impact for the district was and just in conversation and talking about the amounts, we did have some conversation around the fact that the district potentially could not afford in terms of the reserve fund and the reduction in force to place everyone on a salary schedule that they were due.” (MeDaniel Depo. At 140.) 17. Plaintiffs and other secretaries complained that they were not given credit for “years of experience” following the implementation of the 2014 Classified Salary Schedule, (MeDaniels Depo. at 123.) D, Testimony of Birmingham Board Member Virginia Volker 1. Ms, Virginia Volker served on the Birmingham Board of Education during the period 1987 through 2013, (Volker Depo. at 9.) 4DOCUMENT 93 2. Ms. Volker served on the Birmingham Board during the period of the enactment of the 2013 and the 2014 Classified Salary Schedules. (Volker Depo. 10-13.) 3. Birmingham Board approved Salary Schedules are sent to the Alabama State Department of Education. (Volker Depo. at 17; Volker Depo, Exhs. 2-3 for fiscal years 2013 and 2014.) 4. Ms. Volker testified that it was her expectation that the school district would follow the salary schedule as enacted by the Birmingham Board. (Volker Depo. at 23). 5. Ms. Volker testified that it was her expectation that a new hire into a classified position, such as a secretary, would be given credit for years of experience. (Volker Depo. at 24-27.) 6. Ms, Volker testified that at the time she voted on the 2014 Classified Salary Schedule, she does not recall anyone telling Board members that some (curently employed) Classified Personnel would begin on STEP 1, (Volker Depo, at 28.) 7. Ms. Volker testified that she reviewed her notes regarding the 2014 Classified Salary Schedule and did not locate any notes that reflect that the salary schedule was not going to be followed. (Volker Depo. at 29-30.) 8. The Birmingham Board’s Superintendent, Craig Witherspoon, did not inform Volker of any complaints lodged about the implementation of the 2014 Classified Salary Schedule. (Volker Depo. at 30.) 9. Until the day preceding her deposition testimony —that is the day she spoke with Birmingham Board lawyers~ Ms. Volker was unaware that those current secretaries/clerks moved to Schedule # Cl would be treated differently for pay purposes. (Volker Depo. at 31-32.) 10. Ms, Volker testified that when The Birmingham Board’s CFO (Arthur Watts) made his presentation to the Birmingham Board concerning the 2014 Classified Salary Schedule, she was not informed that certain secretaries would not get credit for “years of experience.” (Volker 15DOCUMENT 93 Depo, At 33-34.) Had Watts said this, Ms. Volker testified that she would have told him “This is wrong.” (Volker Depo. at 33-34.) 11. Ms, Volker testified that “it seems unequal” to give credit for years of experience to those rehired following the RIF. (Volker Depo. at 36-38.) 12, Ms, Volker further testified that placing a new hire on STEP 1 and also placing a veteran ten-year employee on STEP | is inequitable and not what she expected to happen when she voted for the 2014 Classified Salary Schedule. (Volker Depo. at 38-39.) Il. LEGAL ARGUMENT A. Defendants acted fraudulently, in bad faith, and beyond their authority and as such cannot avail themselves of the Doctrine of Sovereign Immunity. Plaintiffs are mindful that based upon Article I, §14 of the Alabama Constitution of 1901: “The state of Alabama shall never be made defendant in any court of law or equity.” While the doctrine of sovereign immunity is “nearly impregnable,” Patterson v. Gladwin Corp., 835 $0.2 137, 142 (Ala, 2002), certain categories of actions do not come within the prohibition of §14. Taylor v. Tray State University, 437 $0.2d 472, 474 (Ala, 1983). Among those categories are (1) actions to force state employees or agencies to perform their legal duties; (2) actions to compel state officials to perform ministerial acts; (3) actions brought under the Declaratory Judgment Act; and (4) actions for injunction or damages brought against state officials in their representative capacity or individually where it is alleged that they had acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law. Jd, The immunity afforded State officers sued in their official capacities, however, is not unlimited. Once it is established * In limited circumstances the writ of mandamus will lic to roquire action of state officials. This is true where discretion is exhausted and that which remains to be done is a ministerial act. See Hardin v. Fullilove Excavating Co., Ine., 353 So. 2d 779 (Ale. 1977); Tennessee & Coosa RR. Co. v, Moore, 36 Ala, 371 (1860). Action may be enjoined if illegal, fraudulent, unauthorized, 16DOCUMENT 93 that the state agent acted beyond his or her authority and is subject to suit, then it must be established that the nature of the recovery is one that is compensable in @ manner that would not invoke sovereign immunity's protection of the State’s treasury. To be compensable, the relief must have been previously bargained for by the State in a contract, and it must be @ liquidated sum certain. The only action left for the State actor to perform must be ministerial and involve no discretion.* All of the foregoing elements have been established as set forth in record evidence. (see statement of undisputed material facts 1-15 supra). B. Defendants have Ministerial Duty to Pay Plaintiffs Correctly. ‘The Birmingham Board of Education has produced a salary schedule in accordance with the Code of Ala, § 16-22-13 to -13.6 mandate, In the introduction to the 2013-2014 Salary Schedule for Classified employees it states, “Years of experience ate categorized as ‘STEPS’ on the classified salary schedule, Experience for support personnel will be granted based on public education experience in this system, other public education experience in the State of Alabama, of other public education experience outside the state.” As stated in Plaintiffs’ Second Amended done in bad faith or under a mistaken interpretation of law. Wallace v. Board of Education of Montgomery Co., 280 Ala, 635, 197 So. 2d 428 (1967). If judgment or discretion is abused, and exercised in an arbitrary or capricious mannet, mandamus will lic to compel a proper exercise thereof, Als, DOT v. Harbert Int'l, Inc., at 839-840.° ° ("When State officers are required to perform ministerial acts, they derive no comfort or immunity from Section 14[, Ala. Const. 1901].") (citing Curry v. Woodstock Slag Corp., 242 Alla. 379, 6 So. 2d 479 (1942), and State v. Clements, 217 Ala. 685, 117 So, 296 (1928). This exception fo immunity is consistent with the grounds stated in Zx parte Cranman, 792 So. 2d 392, 405 (Ale. 2000), upon which [non-governmental plaintift] relies, which provide that immunity is not available for [The State Agent's willful action contrary to federal or state law or beyond his authority, Smith v. Tillman, 958 So. 2d 333, 338 (Ala. 2006). 7DOCUMENT 93 complaint {14 and 15, Plaintiffs Smith and Street are not being given credit for years of experience following the implementation of the 2014 Classified Salary Schedule. The Defendants had e legal duty to assign Plaintiffs to the salary step that reflected their years of experience. The act would be purely ministerial because, with the lawful enactment of the 2014 Classified Salary Schedule, the Birmingham Board exhausted all discretion over the subject. Therefore, Plaintiffs claims for placement on the correct salary STEP are proper. Moreover, CFO Watts admitted that the 2014 Budget enacted by the Birmingham Board had sufficient funds to pay all personnel in accordance with the duly enacted 2014 Classified Salary Schedule, Therefore a liquidated sum certain has been budgeted and is available for payment for services already provided by Plaintiffs. (see Undisputed Material Facts FL, 2, 3, and 4 supra). C, Plaintiffs are due to be compensated for loss of pay for the period that they were denied correct placement on the 2014 Classified Salary Schedule. ‘The Court has drawn a distinction between the recoverability of liquidated versus non- liquidated damages, Non-liquidated damages are not recoverable against state agents, Ala, Agric. & Mech, Univ. v. Jones, at 895. However, if sufficient sum was budgeted and available for the performance of this work according to a schedule of fees contained in said contract” and “Plaintiff performed all of the work and services catled for in the architectural contract, and said services were accepted, approved and used by the defendant." i. at 878, All of these elements are present in the record evidence. Undisputed material facts support the payment of a liquidated sum, (see Undisputed Material Facts 44, 10, 11 supra). Defendants are legal entities. As the employer, the Defendants have the legal obligation to pay Plaintiffs the correct salary and it is proper to pursue the Defendants for the purpose of enforcing the employment contract with Plaintiffs. Bessemer Bd. of Educ. v. Minor, at 786-781,DOCUMENT 93 Mandamus is the vehicle for seeking relief against a State agent who has acted beyond his authority.’ To establish the need for mandamus, Plaintiffs must show that their case meets certain elements. ‘Mandamus is an extraordinary remedy and requires a showing that there is: "(1) 8 clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Edgar, 543 So. 2c 682, 684 (Ala. 1989); Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala. 1991); Ex parte Johnson, 638 So. 2d 772, 773 (Ala. 1994), Ex parte Gates, 675 So. 24 371, 374 (Ala, 1996). See also Ex parte Waites, 736 So. 2d $50, 553 (Ala, 1999). Ex parte Inverness Constr. Co., 775 So. 2d 153, 156 (Ala. 2000). Bessemer Bd. of Educ. v. Minor, 68 So. 34 782, 788 (Ale. 2011). ‘There are many similarities between the case of Bessemer v. Minor and the Plaintiffs? claims herein, Ms, Minor, the plaintiff in Bessemer, sued the State because her statutory pay raise had been miscalculated, Minor sought back pay for the 2000-2001 fiscal year. Defendants raised the defense of sovereign immunity. In an order dated April 23, 2005, the trial court found that the Bessemer Board had no discretion to refuse to pay Minor the appropriate salary increase and Minor was seeking a suin certain liquidated amount, The trial court ordered the Bessemer Board members, in their official capacity, to pay Ms. Minor the correet salary for fiscal years 2000-2001 and fiscal years 2001-2002, plus interest from the date the money was owed, The Court then ordered the parties to engage in discovery to attempt to come to a stipulation “oa the ” Generally, mandamus relief is available in certain situations to compel a State officer to perform the ministerial act of tendering payment of liquidated or certain sums the State is legally obligated to pay under a contract. State Highway Dep't v. Milton Constr. Co., 586 So. 2d 872, 875 (Ala. 1991); see also Jones, 895 So. 2d at 877-79 (describing as "well-established [the} rule that a writ of mandamus will issue to compel payment of only such claims as are liquidated" and noting that prior caselaw had held "that payment for goods or services, for which the State had contracted and accepted, could be compelled by mandamus"); and State Bd. of Admin. . Roquemore, 218 Ala. 120, 124, 117 So. 757, 760 (1928) ("the claim asserted [against the State was] for an amount fixed or determinable by the terms of the contract of sale," and was "definite and certain, ... and not an unliquidated claim, in the sense that would render mandamus unayeilable"), Ala. DOT v. Harbert Int'l, Inc., at 842. 19DOCUMENT 93 amount of relief that would be awarded to other class members if the class is certified.” In September of 2005, Defendants appealed the order of the trial court to challenge the denial of the immunity claims, ‘The Court treated the appeals as petitions for writ of mandamus. On February 4, 2011, the Supreme Court of Alabama issued an opinion, which includes the following: [RJegarding the Bessemer Board members in their official capacities, Minor is entitled to bring an action to compel them to perform their legal duty or to perform a ministerial act. Jn the present case, it is undisputed that the Bessemer Board memibers have a statutory duty to pay Minor the appropriate salary increase under § 16-22-13.1, Ala, Code 1975. ‘That statute specifically provides that a public school teacher with Minor’s years of experience being paid under the State minimum-salary schedule shall receive a 5.5% increase in salary beginning with the fiscal year 2000-2001. ‘The basis for this calculation is at issue in this lawsuit, The amount of the salary increase the Bessemer Board members must pay Minor involves obedience to the statute; it does not involve any discretion. The Bessemer Board members have a legal duty to pay Minor the correctly caleulated salary increase under the statute and in doing so they are performing a ministerial act ‘Therefore, Minor's action against the Bessemer Board members in their official capacities is not an action “against the State" for § 14 purposes; thus, the Bessemer Board members are not entitled to § 14 immunity from Minor’s action to compel them to fulfill their statutory duty to pay her the appropriate salary increase. (Emphasis added.) Bessemer Bd. of Educ. v. Minor, at 790-191. D. Defendants Witherspoon and Watts, sued in their individual capacities, acting without legal authority denied Plaintiffs the salary that they were due under the 2014 Classified Salary Schedule. Dofendants Witherspoon and Watts held a clear legal duty to pay in accordance with the Birmingham Board’s duly enacted 2014 Classified Salary Schedules. The Chief Financial Officer certified to the Birmingham Board of Education that sufficient funds existed to pay in accordance with the 2014 Classified Salary Schedule. (Watts Depo. at 18, 22-23, 45.) Waits and Witherspoon intentionally failed to pay Plaintiffs Smith and Street in accordance with the duly approved 2014 Classified Salary Schedule despite the clear language that says salary STEP placement is determined by “yeats of experience.” It is undisputed that these individual Defendants fraudulently, in bad fe , and without legal authority, placed Plaintiffs on salary 20DOCUMENT 93 STEPS that did not credit their respective years of experience as required in the 2014 Classified Salary Schedule. Both CFO Watts and Superintendent Witherspoon admitted that they intentionally disobeyed the clear language of the duly approved 2014 Salary Schedule. Neither CFO Watts or Superintendent Witherspoon could point to any written policy that allowed them to disregard the official pay policy enacted by the Birmingham Board, Jeffiey McDaniels, the HR Director, complied with the directives from both Witherspoon and Watts. A number of secretarial personnel, including Plaintiffs Smith and Street, were denied proper placement on the salary STEP which resulted in a significant loss of pay. MeDanicls explained that this “procedure” of moving personnel to a STEP that maintained their 2013 pay was designed to save money and to avoid holding due process hearings in the likely event that secretarial personnel filed for a hearing. MeDeniels testified that the decision not to use “years of experience” when moving from the 2013 to the 2014 Classified Salary Schedule for clerical personnel was based on finances because the district may not be able to meet the reserve find goal and therefore could not afford “to place everyone on a salary schedule that they were due.” (McDaniel Depo. at 140.) (see undisputed facts Y7, 8 10, 11, 14, 15 supra), Plaintiffs Smith and Street were arbitrarily denied placement based upon their “years of experience” while other employees (such as newly hired, rehired, or certain existing employees) were given full credit for their “years of experience.” (see undisputed facts {12, 13 supra. In light of the foregoing admissions, Defendants Witherspoon and Watts cannot avail themselves of sovereign immunity. Moreover, since their actions were taken outside their legal authority, in bad faith, and fraudulently, these Defendants are due to be held personally liable for all economic losses suffered by Plaintifls. (see Undisputed Material Facts 45, 6 supra). 21DOCUMENT 93 V. CONCLUSION Plaintiffs move this Court to enter, pursuant to Rule 56 of the Alabama Rules of Civil Procedure, a Summary Judgment in Plaintiffs’ favor granting the Plaintifis’ request for declaratory judgment, mandamus, and further relicf on the grounds that there exists no genuine issue as to any material fact and that as to Count One, Plaintifis are entitled to a judgment as a matter of law. Respectfully submitted, s/ Gayle H. Gear Gayle H. Gear, Esq. s/J. Bryant Hall J. Bryant Hall The Law Offices of Gayle H. Gear 2229 Morris Avenue Birmingham, AL 35203 CERTIFICATE OF SERVICE Thereby cettify that on October 15, 2015, I electronically filed the foregoing with the Clerk of the Court using the AlaFile system, ot by United States Postal Service to the following: Afrika Parchman General Counsel, 2015 Park Place Birmingham, AL 35203 irmingham Board of Education Claire Puckett Carl Jobson Bishop, Colvin, Johnson, & Kent, LLC 1910 1st Avenue North Birmingham, AL 35203 s/Gayle H. Gear. Dr. Gayle H Gear, Esq. s/J_ Bryant Hall J. Bryant Hall, Esq. 2