Williams v. Birmingham Board of Education

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

YANCEY WILLIAMS, )

)

Plaintiff, )

)

v. ) Case No.: 2:22-cv-978-ACA

)

BIRMINGHAM BOARD OF )

EDUCATION, )

)

Defendant. )

MEMORANDUM OPINION

Plaintiff Yancey1 Williams is male, over the age of 40, and a current employee

of Defendant Birmingham Board of Education. Mr. Williams contends that the

Board intentionally promotes and pays younger, female assistant principals more

than the Board has paid and promoted him in violation of the Civil Rights Act of

1964 (“Title VII”), 42 U.S.C. § 2000e-2(a), and the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 623(a). (Doc. 1).2

The Board moves for summary judgment as to all claims asserted against it,

1 During his deposition, Mr. Williams testified that his first name is Yancey. (See doc. 18-

11 at 2). The court therefore DIRECTS the Clerk of Court to update the docket to reflect that the

appropriate spelling of Mr. Williams’s name.

2 The complaint’s allegation of jurisdiction states that Mr. Williams also asserts claims

under 42 U.S.C. § 1981; the Equal Pay Act, 29 U.S.C. § 606(d); and Alabama state law. (See doc.

1 ¶ 1). Mr. Williams does not plead any of those claims in his claims for relief. (See id. ¶¶ 20–48).

Accordingly, the court’s analysis is limited to the claims Mr. Williams has pleaded.

contending that Mr. Williams has not exhausted his administrative proceedings for

his failure-to-promote claims and that the Board does not pay its assistant principals

with discriminatory intent. (Doc. 16). The court is persuaded by the Board’s first

argument but not its second. Accordingly, the court WILL GRANT IN PART and

DENY IN PART the Board’s motion and WILL ENTER SUMMARY

JUDGMENT in the Board’s favor as to Mr. Williams’s failure-to-promote claims.

This case will proceed to trial as to Mr. Williams’s disparate pay claims.

I. BACKGROUND

When approaching a motion for summary judgment, the court “view[s] the

evidence and all factual inferences therefrom in the light most favorable to the non-

moving party, and resolve[s] all reasonable doubts about the facts in favor of the

non-movant.” Washington v. Howard, 25 F.4th 891, 897 (11th Cir. 2022) (quotation

marks omitted). Where the parties have presented evidence creating a dispute of fact,

the court’s description of the facts adopts the version most favorable to the

nonmovant. See id.; see also Cantu v. City of Dothan, 974 F.3d 1217, 1222 (11th

Cir. 2020) (“The ‘facts’ at the summary judgment stage are not necessarily the true,

historical facts; they may not be what a jury at trial would, or will, determine to be

the facts.”).

Mr. Williams is male, over the age of 40, and a current employee of the Board.

(Doc. 18-14 at 49; doc. 18-11 at 3, 9). Mr. Williams has identified five other Board

employees, whom he contends are younger and of the opposite gender, holding the

same or a substantially similar title that he holds, and receiving better pay: (1) Fallin

Ladd (female, 41 years old); (2) Angelia Groves (female, 51 years old); (3) Erin

Evans (female, 43 years old); (4) Raynada Moss (female, 43 years old); and

(5) Nikedra Ward (female, 43 years old). (See doc. 26 at 7–10; see also doc. 18-1 at

11–13 ¶ 12, 16–17 ¶ 14, 25–26 ¶ 22, 28–29 ¶ 25, 29–30 ¶ 26). Before the court

examines each employee’s compensation history, the court will first describe the

Board’s compensation and promotion process. The court will then describe

Mr. Williams’s compensation history before examining his alleged comparators’

compensation histories in turn.

1. The Board’s Compensation & Promotion Policies

The Board pays its personnel through a pay schedule. (See doc. 18-1 at 2 ¶¶ 4–

5; accord doc. 18-12 at 10; doc. 18-13 at 37). According to this pay schedule,

employee compensation is determined based on three numbers: (1) the role of the

employee (i.e., teacher, assistant principal, etc.), (2) the “rank” of the employee

based on compensable certifications or education levels; and (3) the employee’s

“step,” which reflects the employee’s years of experience. (Doc. 18-1 at 2 ¶ 5).

Each year, the Board votes and approves a new pay schedule. (Id. at 2 ¶ 4; see

also, e.g., doc. 18-6 at 1–29) (the 2018 pay schedule). Relevant here, the pay

schedule includes: (1) the promotion policy for promotions to new employee roles;

(2) the number of contract days for each employee; and (3) a set of tables for each

employee role, which dictates employee compensation based on the employee’s rank

and step. (Doc. 18-6 at 3, 6–29). Each year, all employees should3 receive a step

increase even if that employee is not promoted to a new position. (Doc. 18-1 at 3

¶ 7).

Although the Board has revised its new position promotion policy on a few

occasions (see doc. 18-1 at 4 ¶ 8), the same policy was in effect for all promotions

relevant to this lawsuit (see doc. 18-14 at 49) (indicating that the “earliest” date the

discrimination made the basis of Mr. Williams’s claims occurred is September

2020). That policy provides that when an employee is promoted, that employee will

be placed on step 1 of the new schedule unless step 1 would not result in a 5% pay

increase, in which case “the employee will be placed on the next appropriate step

that allows the employee to receive at least a 5% increase in pay[].” (Doc. 18-6 at 3,

32, 62; compare id. at 62, with doc. 18-7 at 3, and doc. 18-1 at 4 ¶ 8).4 The lack of

clarity in this case seems to stem from confusion about what “pay” means.

3 The court uses “should” because the Board’s compensation records reflect a substantial

number of “clerical error[s]” and a “payroll system error” in multiple employees’ compensation

calculations. (See, e.g., doc. 18-1 at 7–9 ¶ 10, 10 ¶ 11, 13 ¶ 13, 17 ¶ 14, 18 ¶ 15, 22 ¶ 19, 23 ¶ 20,

24 ¶ 21, 26 ¶ 23, 28 ¶ 24, 30 ¶ 26).

4 The Board did not provide the court with a complete copy of the FY2021 salary schedule,

which was the schedule in effect at the time three of Mr. Williams’s alleged comparators, were

promoted. (See doc. 18-6 at 90–117). The undisputed evidence is that the Board implemented a

revised promotion policy in 2012 (see doc. 18-4 at 31; accord id. at 60, 85, 112; doc. 18-5 at 3;

doc. 18-6 at 3, 32), and the Board did not change that policy again until October 1, 2021, which

was after each alleged comparator’s promotion (see doc. 18-7 at 3; doc. 18-1 at 4 ¶ 8, at 16 ¶ 14,

Board employees are paid a salary, but the Board also tracks employees’

“daily rate of pay” and “contract days.” (See doc. 18-1 at 4 ¶ 8; see also, e.g., doc.

18-9 at 12) (Mr. Williams’s personnel action form for his 2018 promotion). An

employee’s daily rate of pay is calculated by dividing his salary by his contract days.

(See doc. 18-1 at 12 ¶ 12). Different employees have different requirements for the

number of contract days they work: of relevance to this case, teachers work 187

contract days and assistant principals work 204 contract days. (See, e.g., doc. 18-6

at 32, 35, 49). And the Board’s policy about ensuring that an employee receives a

“5% increase in pay[ ]” when promoted does not explain whether “pay” refers to the

daily rate or the salary. (See, e.g., id. at 32); see also supra at 4–5 n.4. This matters

because if “pay” means “salary,” then the Board’s method of calculating employees’

post-promotion pay is not compliant with its policy, but if “pay” means “daily rate,”

it is.

All of Mr. Williams’s alleged comparators were promoted from teacher

positions to assistant principal positions. (See doc. 26 at 7–10; accord doc. 18-1 at

11–13 ¶ 12, 16–17 ¶ 14, 25–26 ¶ 22, 28–29 ¶ 25, 29–30 ¶ 26). Accordingly, when

the Board promoted Mr. Williams’s alleged comparators, the Board first gave those

employees a 5% increase to their daily rate, and then multiplied the daily rate by the

29 ¶ 26). The Board represents—and Mr. Williams does not dispute—that the promotion policy in

place for FY2021 was the same policy that was in place for Mr. Williams’s promotion in FY20219.

204 contract days associated with being an assistant principal. (See, e.g., doc. 18-1

at 12–13 ¶ 12). This calculation method resulted in annual salary increases of

14.55%–18.58% for Mr. Williams’s alleged comparators. (See, e.g., doc. 26 at 9);

see also infra at 10–11, 13, 15.

Unlike most of Mr. Williams’s alleged comparators, the Board does not

explain how it calculated Mr. Williams’s post-promotion salary. (Compare doc. 18-

1 at 12 ¶ 12–13, with id. at 8 ¶ 10). During the time relevant to Mr. Williams’s claims

(see doc. 18-14 at 49), Mr. Williams already worked as an assistant principal (see

doc. 18-1 at 8 ¶ 10; doc. 18-9 at 12). So whether the Board relied on Mr. Williams’s

annual salary or daily rate to calculate his post-promotion salary, Mr. Williams did

not receive the additional benefit that his alleged comparators received, i.e., an

additional seventeen days when multiplying the post-promotion daily rate to his

contract days. (E.g., compare doc. 18-1 at 10 ¶ 10, with id. at 12–13 ¶ 12).

Accordingly, Mr. Williams received a 5.22% increase to his salary when the Board

promoted him. See infra at 8.

2. Mr. Williams’s Compensation History

In 1997, Mr. Williams began his employment as a teacher, which placed him

on salary schedule 16. (Doc. 18-1 at 5 ¶ 10). He did not have any compensable

certifications or education levels at that time, so he started at rank 1. (Id.). In 2003,

Mr. Williams received a master’s degree, which entitled him to a rank increase. (Id.;

see also doc. 18-9 at 4). In 2011, Mr. Williams earned a Double A (Class AA)

certification, which entitled him to another rank increase. (Doc. 18-1 at 7 ¶ 10; see

also doc. 18-4 at 17; doc. 18-9 at 8).

In 2018, Mr. Williams’s salary was $69,360.96, reflecting the amount in

salary schedule 72, rank 3, step 22. (Doc. 18-1 at 8 ¶ 10; accord doc. 18-9 at 12).

That year, the Board temporarily reassigned Mr. Williams to a high school assistant

principal position, resulting a move to salary schedule 67, rank 3. (See doc. 18-9 at

12). Assuming the Board followed its policy, then the Board moved Mr. Williams

to salary 67, rank 3, step 1. (See doc. 18-6 at 3, 32; but see doc. 18-1 at 8 ¶ 10; doc.

18-9 at 12). But that schedule, rank, and step resulted in a salary of $66,957 (doc.

18-6 at 49), which was less than his previous salary (see doc. 18-1 at 8 ¶ 10). So Mr.

Williams was entitled to “a 5% increase in pay.” (See doc. 18-6 at 32).

The court has already described the ambiguity about what the promotion

policy means by “a 5% pay increase.” (Doc. 18-6 at 3); see supra at 5–6. For

Mr. Williams’s promotion, this ambiguity is immaterial because the Board placed

Mr. Williams on the correct step either way.

If the Board used Mr. Williams’s daily rate of pay to give him “a 5% pay

increase” (see doc. 18-6 at 3), then the calculations are as follows: (1) Mr. Williams’s

pre-promotion daily rate of pay was $340 (see doc. 18-9 at 12);5 (2) a 5% increase

to this rate would result in a daily rate of pay of $357; and (3) $357 multiplied by

the 204 contract days for a high school assistant principal (see doc. 18-6 at 49;

accord doc. 18-9 at 12) creates an annual salary of $72,828. The salary step closest

to that amount in schedule 67, rank 3 is step 8, which results in an annual salary of

$72,984. (Doc. 18-6 at 49). And that is the step the Board placed Mr. Williams on.

(See doc. 18-9 at 12).6

If the Board used Mr. Williams’s annual salary to give him “a 5% increase in

pay” (see doc. 18-6 at 32), then the calculations are as follows: (1) Mr. Williams’s

was $69,360.96 (doc. 18-1 at 8 ¶ 10; accord doc. 18-9 at 12); and (2) a 5% increase

would result in a salary of $72,829. The salary step closest to that amount in schedule

67, rank 3 is step 8, which results in an annual salary of $72,984. (Doc. 18-6 at 49).

And again, that is the step the Board placed Mr. Williams on. (See doc. 18-9 at 12).

In total, Mr. Williams received a 5.22% pay increase for the 2018 promotion.

5 Mr. Williams’s personnel action form indicates his daily rate of pay was $331.71. (See

doc. 18-9 at 12). As a mathematical matter, this calculation is erroneous because Mr. Williams’s

annual salary was $69,360.96 and he worked 204 contract days, which should result in a daily rate

of $340. (See id.). In any event, it does not appear the Board relied on this form to reach

Mr. Williams’s post-promotion salary because the Board arrived at the correct step for

Mr. Williams’s post-promotion salary.

6 The Board submitted an affidavit from its Employee Relations/District Investigator in

which she attests that Mr. Williams was placed on step 9. (See doc. 18-1 at 8 ¶ 10). Mr. Williams

was not placed on step 9; he was placed on step 8. (See doc. 18-9 at 12).

3. Ms. Ladd’s Compensation History

In January 2008, Ms. Ladd began her employment as a teacher, and in May

of that year, Ms. Ladd earned her master’s degree, which entitled her to a rank

increase. (Doc. 18-1 at 11 ¶ 12; doc. 18-9 at 22–23; see also doc. 18-3 at 124). In

2012, Ms. Ladd earned a Double A (Class AA) certification, which entitled her to

another rank increase. (Doc. 18-1 at 12 ¶ 12; doc. 18-9 at 24; see also doc. 18-4 at

33).

In 2017, Ms. Ladd’s salary was $59,097, reflecting the amount in salary

schedule 16, rank 3, step 10. (Doc. 18-9 at 25; accord doc. 18-5 at 6). And that year,

the Board promoted Ms. Ladd to assistant principal of a high school. (See doc. 18-1

at 12 ¶ 12; doc. 18-9 at 25). Instead of first placing Ms. Ladd on schedule 67, rank

3, step 1 (see doc. 18-5 at 3), which would have resulted in a salary of $65,323 (more

than 5% higher than her previous annual salary) (see doc. 18-5 at 19), the Board first

calculated what a 5% increase to Ms. Ladd’s daily rate would be (see doc. 18-1 at

12–13 ¶ 12).

The calculations proceeded as follows: (1) Ms. Ladd’s pre-promotion daily

rate of pay was $316.03 (see doc. 18-9 at 25; see also doc. 18-5 at 6); (2) a 5%

increase to this rate would result in a daily rate of pay of $331.83 (see doc. 18-1 at

12 ¶ 12); (3) $331.83 multiplied by the 204 contract days for a high school assistant

principal (see doc. 18-5 at 19; accord doc. 18-9 at 25) creates an annual salary of

$67,693.63 (doc. 18-1 at 13 ¶ 12). The salary step closest to that amount in schedule

67, rank 3 is step 6, which resulted in an annual salary of $70,077. (Doc. 18-5 at 19).

Because the Board calculated Ms. Ladd’s post-promotion salary based on her

daily rate, she received a 18.58% increase to her annual salary.

4. Ms. Groves’s Compensation History

In 1998, Ms. Groves began her employment as a teacher. (Doc. 18-1 at 16

¶ 14; doc. 18-9 at 36). She earned her master’s degree in 2003 and therefore received

a rank increase. (Doc. 18-1 at 16 ¶ 14; doc. 18-9 at 37). And in 2008, Ms. Grovers

earned a Double A (Class AA) certification, which entitled her to another rank

increase. (Doc. 18-1 at 16 ¶ 14; doc. 18-9 at 38).

In January 2021, Ms. Groves’s salary was $65,255,7 reflecting the amount in

salary schedule 16, rank 3, step 23. (See doc. 18-9 at 39; but see doc. 18-6 at 92; doc.

18-1 at 16 ¶ 14). And that year, the Board promoted Ms. Groves to assistant principal

of an elementary school. (Doc. 18-1 at 16 ¶ 14; doc. 18-9 at 39). Placing Ms. Groves

on salary schedule 66, rank 3, step 1, see supra at 4–5 n.4, would have resulted in an

7 The Board submitted an affidavit from its Employee Relations/District Investigator in

which she attests as to the calculation methods for Mr. Williams’s alleged comparator’s salaries.

(See doc. 18-1). The affiant attests that “[p]rior to her promotion, [Ms.] Groves was on Teacher

Salary Schedule 16, Rank/Level 3, Step 23 with an annual salary of $65,254” (doc. 18-1 at 16

¶ 14), and the affiant relies on Ms. Groves’s personnel action form (doc. 18-9 at 39) for this

assertion. Although Ms. Groves’s personnel action form indicates that her salary was $65,254 (see

doc. 18-9 at 39), the Board’s salary schedule indicates that the assigned salary for Ms. Groves’s

rank and step was $65,255 (see doc. 18-6 at 92). For consistency purposes, the court uses the salary

on the Board’s salary schedule for all of Mr. Williams’s alleged comparators when there is a

discrepancy between the relevant salary schedule and the personnel action form.

annual salary of $62,945 (see doc. 18-6 at 105), which was less than Ms. Groves’s

pre-promotion salary. So Ms. Groves was entitled to placement on a step that

resulted in a 5% increase to her salary, see supra at 4–5 n.4, which would have been

step 8 at $68,746 (see doc. 18-6 at 105).

Instead, the Board calculated the 5% increase based on Ms. Groves’s daily

rate. (See doc. 18-1 at 16–17 ¶ 14). The calculations proceeded as follows: (1) Ms.

Groves’s pre-promotion daily rate of pay was $348.968 (see doc. 18-6 at 92); (2) a

5% increase to this rate would result in a daily rate of pay of $366.41 (see doc. 18-1

at 17 ¶ 14); (3) $366.41 multiplied by the 204 contract days required for an

elementary school assistant principal (see doc. 18-6 at 105; doc. 18-9 at 39) creates

an annual salary of $74,747.64 (see doc. 18-1 at 17 ¶ 14). But this amount exceeded

the available salary ranges in schedule 66, rank 3, so the Board paid Ms. Groves

$74,747. (Doc. 18-1 at 17 ¶ 14; accord doc. 18-9 at 39).

Because the Board calculated Ms. Groves’s post-promotion salary based on

her daily rate, she received a 14.55% promotion to her annual salary.

8 Ms. Groves’s personnel action form indicates that her daily rate was $348.95. (Doc. 18-

9 at 39). The court assumes this calculation error derives from the fact that Ms. Groves’s annual

salary is incorrect on this form. See supra at 10 n.7. The Board’s salary schedule provides that

teachers work 187 contract days and Ms. Groves was at a rank 3, step 23, so her salary was

$65,255. (See doc. 18-6 at 92). Her daily rate therefore should have been $348.96.

5. Ms. Evans’s Compensation History

In 2004, Ms. Evans began her employment as a teacher. (Doc. 18-1 at 25 ¶ 22;

doc. 18-9 at 74). She earned a Double A (Class AA) certification, which entitled her

to a rank increase. (Doc. 18-1 at 25 ¶ 22; see also doc. 18-9 at 75). It appears that

Ms. Evans may have also earned a master’s degree, which may have entitled her to

another rank increase. (See doc. 18-9 at 75) (indicating that Ms. Evans was at a rank

3 and that her highest degree was a “6 Year Degree”).

In January 2021, Ms. Evans’s salary was $65,255, reflecting the amount in

salary schedule 16, rank 3, step 17. (See doc. 18-9 at 76; but see doc. 18-6 at 92).9

And that year, the Board promoted Ms. Evans to assistant principal of a middle

school. (See doc. 8-1 at 25 ¶ 22; doc. 18-9 at 76). Placing Ms. Groves on salary

schedule 72, rank 3, step 1, see supra at 4–5 n.4, would have resulted in an annual

salary of $63,138 (see doc. 18-6 at 106), which was less than Ms. Evans’s pre-

promotion salary. So Ms. Evans was entitled to placement on a step that resulted in

a 5% increase to her salary, see supra at 4–5 n.4, which would have been step 8 at

$68,944 (see doc. 18-6 at 106).

Instead, the Board calculated the 5% increase based on Ms. Evans’s daily rate.

(See doc. 18-1 at 25 ¶ 22). The calculations proceeded as follows: (1) Ms. Evans’s

9 As discussed above, supra at 10 n. 7, the court uses the salary on the Board’s salary

schedule. (Doc. 18-6 at 92).

pre-promotion daily rate was $348.9610 (see doc. 18-6 at 92); (2) a 5% increase to

this rate would result in a daily rate of pay of $366.41; (3) $366.41 multiplied by the

204 contract days required for a middle school assistant principal (see doc. 18-6 at

106; doc. 18-9 at 76; doc. 18-1 at 25 ¶ 22) creates an annual salary of $74,747.64

(see doc. 18-1 at 25 ¶ 22). But this amount exceeded the available salary ranges in

schedule 72, rank 3, so the Board paid Ms. Evans $74,747. (Doc. 18-1 at 25 ¶ 22;

accord doc. 18-9 at 76).

Because the Board calculated Ms. Evans’s post-promotion salary based on her

daily rate, she received a 14.55% promotion to her annual salary.

6. Ms. Moss’s Compensation History

In 2003, Ms. Moss began her employment as a teacher. (Doc. 18-1 at 29 ¶ 26;

doc. 18-10 at 10). She then earned a master’s degree, which entitled her to a rank

increase. (Doc. 18-1 at 29 ¶ 26; doc. 18-10 at 7).

In 2021, Ms. Moss’s salary was $60,548.00, reflecting the amount in salary

schedule 16, rank 2, step 18. (Doc. 18-10 at 8). And that year, the Board promoted

Ms. Moss to an assistant principal position. (Doc. 18-1 at 29 ¶ 26). The Board does

not explain how Ms. Moss’s post-promotion salary was calculated. (See id. at 29–30

10 Ms. Evans’s personnel action form indicates that her daily rate was $348.95. (Doc. 18-9

at 76). The court assumes this calculation error derives from the fact that Ms. Evans’s annual salary

is incorrect on this form. See supra at 12 n.9. The Board’s salary schedule provides that teachers

work 187 contract days and Ms. Evans was at a rank 3, step 17, so her salary was $65,255. (See

doc. 18-6 at 92). Her daily rate therefore should have been $348.96.

¶ 26). The Board acknowledges that Ms. Moss was overcompensated and contends

that her overcompensation was “due to a clerical error.” (Id.).

Whatever the method of calculation, Ms. Moss received a 14.55% increase to

her annual pay.

7. Ms. Ward’s Compensation History

In 2015, Ms. Ward began her employment as a teacher and had already earned

her master’s degree at that point. (See doc. 18-9 at 87; doc. 18-1 at 28 ¶ 25). She then

earned an educational specialist degree, which entitled her to another rank increase.

(Doc. 18-1 at 28 ¶ 25; doc. 18-10 at 3).

In 2019, Ms. Ward’s salary was $65,255.00, reflecting the amount in salary

schedule 16, rank 3, step 15. (Doc. 18-6 at 65; see also doc. 18-10 at 3–5).11 And

that year, the Board promoted Ms. Ward to interim assistant principal of a middle

school. (Doc. 18-1 at 28 ¶ 25; doc. 18-10 at 4). Placing Ms. Ward on salary schedule

72, rank 3, step 1 (see doc. 18-6 at 62), would have resulted in an annual salary of

$63,138 (see doc. 18-6 at 78), which was less than Ms. Ward’s pre-promotion salary.

So Ms. Ward was entitled to placement on a step that resulted in a 5% increase to

11 The personnel action form for Ms. Ward’s promotion to interim assistant principal does

not indicate Ms. Ward’s placement on the FY2020 salary schedule and indicates that Ms. Ward’s

“annual salary” was $1,000. (See doc. 18-10 at 4). But the personnel action form is not blank for

FY2019 and indicates that Ms. Ward was on salary schedule 16, rank 3, step 14 that year. (See id.

at 3). Because an employee receives a step increase for each year of employment (see doc. 18-1 at

3 ¶ 7), the court’s recitation of the facts assumes Ms. Ward was on salary schedule 16, rank 3, step

15 and that she received the salary assigned to that salary schedule (see doc. 18-6 at 65).

her salary (see doc. 18-6 at 62), which would have been step 8 at $68,944 (see doc.

18-6 at 78).

Instead, the Board calculated the 5% increase based on Ms. Ward’s daily rate.

(See doc. 18-1 28 ¶ 25). The calculations proceeded as follows: (1) Ms. Ward’s pre-

promotion daily rate was $348.96 (see doc. 18-6 at 65); (2) a 5% increase to this rate

would result in a daily rate of pay of $366.41; (3) $366.41 multiplied by the 204

contract days required for a middle school assistant principal (see doc. 18-6 at 78;

doc. 18-10 at 4; doc. 18-1 at 28 ¶ 25) creates an annual salary of $74,747.64 (see

doc. 18-1 at 25 ¶ 22). But this amount exceeded the available salary ranges in

schedule 72, rank 3, so the Board paid Ms. Ward $74,747. (Doc. 18-1 at 28–29 ¶ 25;

accord doc. 18-10 at 4).

Because the Board calculated Ms. Ward’s post-promotion salary based on her

daily rate, she received a 14.55% promotion to her annual salary. And in 2020, the

Board transitioned Ms. Ward from interim assistant principal to permanent assistant

principal. (See doc. 18-10 at 5; doc. 18-1 at 29 ¶ 25). The Board continued to pay

her the $74,747 post-promotion salary. (See doc. 18-10 at 5; doc. 18-1 at 29 ¶ 25).

II. DISCUSSION

The Board moves for summary judgment as to all claims. (See doc. 16).

Summary judgment is appropriate when a 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). The Board contends that Mr. Williams failed to exhaust

his administrative remedies to the extent that his claims are based on a failure-to-

promote theory. (See doc. 17 at 34–35). Because exhaustion is a threshold issue

regarding whether Mr. Williams’s claims are properly before the court, see

Patterson v. Ga. Pac., LLC, 38 F.4th 1336, 1345 (11th Cir. 2022), the court considers

that argument first.

a. Failure to Promote

Mr. Williams contends that the Board refused to promote him because of his

age and gender in violation of the ADEA and Title VII. (See doc. 1 ¶¶ 24, 38). The

Board argues that Mr. Williams has not exhausted his administrative remedies as to

this discrimination theory because this theory was neither included in his EEOC

charge nor reasonably expected to grow from the allegations in his EEOC charge.

(See doc. 17 at 34–35). Mr. Williams responds the scope of an EEOC investigation

into his charge alleging disparate pay could give rise to a failure-to-promote claim.

(See doc. 26 at 4).

Before filing a gender discrimination or age discrimination claim, a plaintiff

must exhaust his administrative remedies by filing a charge of discrimination with

the EEOC. Patterson, 38 F.4th at 1345 (gender discrimination); Bost v. Fed. Express

Corp., 372 F.3d 1233, 1238 (11th Cir. 2004) (age discrimination). “Because of that

exhaustion requirement, a plaintiff’s judicial complaint is limited by the scope of the

EEOC investigation which can reasonably be expected to grow out of the charge of

discrimination.” Patterson, 38 F.4th at 1345 (quotation marks omitted).

This limitation fulfills the purpose of the exhaustion requirement: “that the

EEOC should have the first opportunity to investigate the alleged discriminatory

practices to permit it to perform its role in obtaining voluntary compliance and

promoting conciliation efforts.” Gregory v. Ga. Dep’t of Hum. Res., 355 F.3d 1277,

1279 (11th Cir. 2004) (quotation marks omitted; alterations accepted). Although

federal courts “are reluctant to allow procedural technicalities to bar [employment

discrimination] claims,” “[t]he facts alleged in the charge matter most for

determining what can reasonably be expected to grow out of an EEOC charge.”

Patterson, 38 F.4th at 1345. So “judicial claims are allowed if they amplify, clarify,

or more clearly focus the allegations in the EEOC complaint, but . . . allegations of

new acts of discrimination are inappropriate.” Gregory, 355 F.3d at 1279–80

(quotation marks omitted).

In Mr. Williams’s EEOC charge, Mr. Williams asserted that he worked as an

assistant principal and “ha[d] more tenure than any other person in the [Birmingham

School] District in that position.” (Doc. 18-14 at 49). Mr. Williams stated his “pay

was lower than other co-workers performing the same work.” (Id.). Specifically,

Mr. Williams identified four other assistant principals whom he contended were

younger than him or of the opposite gender, had less experience or education than

he did, and received a higher salary than him. (See id. at 49–50). But Mr. Williams

does not identify any promotions that the Board denied him. (See id.). Indeed, the

sole focus of Mr. Williams’s charge is that other assistant principals, some of whom

were younger and of the opposite gender, “were making more [money] than [he was]

with less experience and the same or less[er] degree.” (Doc. 18-14 at 49).

Mr. Williams has not exhausted his administrative remedies with respect to

any failure-to-promote claims. Accordingly, the court WILL GRANT the Board’s

motion and WILL ENTER judgment in the Board’s favor as to that aspect of his

claims.

b. Discriminatory Pay

Mr. Williams contends that the Board intentionally paid him less than

younger, female assistant principals who performed substantially similar work in

violation of the ADEA and Title VII. (Doc. 1 ¶¶ 24, 38). The Board contends that

summary judgment is appropriate on these claims because (1) the Board

compensates Mr. Williams’s alleged comparators differently due to their different

employment histories and (2) the Board has produced a pay schedule which accounts

for its compensation practices. (See doc. 17 at 39–42). The court rejects the Board’s

first argument because it is not adequately briefed, and the court rejects the Board’s

second argument because a reasonable jury could find that the Board did not adhere

to its pay schedule.

A party must adequately brief an argument by citing authority, referring to the

facts of the party’s case, and providing a “meaningful explanation” for how the legal

authority “appl[ies] to [the party’s] claim.” Harner v. Soc. Sec. Admin., Comm’r, 38

F.4th 892, 899 (11th Cir. 2022). “[P]assing references” simply do not suffice.

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). And

when a party fails to adequately brief an argument, that argument is forfeited. United

States v. Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (en banc); United States v.

Esformes, 60 F.4th 621, 635 (11th Cir. 2023) (“declin[ing] to address the merits” of

a “skeletal argument” that included only “a bare citation” to the record); Christmas

v. Harris Cnty., 51 F.4th 1348, 1354 n.4 (11th Cir. 2022) (holding that the plaintiff

had forfeited an argument when she “dedicate[d] just two sentences to” it).

Here, the Board asserts that Mr. Williams’s comparators are not “similarly

situated to [Mr.] Williams because the differences in their respective employment

histories that are used to determine placement on the Board’s salary schedule are

substantially different than his, and thus, they are compensated different steps on the

Board’s salary schedule.” (Doc. 17 at 39). In essence, the Board asserts that Mr.

Williams has not identified similarly situated employees because the employees he

has identified are different and thus were treated differently. (See id.). But the Board

fails to explain why Mr. Williams and his alleged comparators are different beyond

a reference to “their respective employment histories.” (See id.).

In many ways, Mr. Williams and his alleged comparators are similar. For

example, other than Ms. Moss (who was on rank 2), Mr. Williams and his alleged

comparators were all on rank 3 at the time of their promotion. (See doc. 18-9 at 12;

see also id. at 25, 39, 76; doc. 18-10 at 3–5; but see doc. 18-10 at 8). Mr. Williams

had more years of employment with the Board than any of his alleged comparators.

(See doc. 18-9 at 1; see also id. at 22, 36, 74, 87; doc. 18-10 at 10). Yet Mr. Williams

experienced a substantially smaller increase to his annual pay when he was promoted

than each of his alleged comparators, including Ms. Moss.

Perhaps the Board intended to argue that this different compensation occurred

because unlike his alleged comparators, Mr. Williams was not promoted from a

teacher position to an assistant principal position. But it is impossible for the court

to discern the precise basis for the Board’s argument because the Board generally

references differences in “employment histories” without further explanation. (Doc.

17 at 39). And the court cannot make arguments on the Board’s behalf. See Fils v.

City of Aventura, 647 F.3d 1272, 1284 (11th Cir. 2011) (“[D]istrict courts cannot

concoct or resurrect arguments neither made nor advanced by the parties.”).

Accordingly, the Board has forfeited this argument by failing to adequately brief it.

The Board’s second argument fares no better. The Board contends that its

compensation practices are non-discriminatory because the Board adhered to its

salary schedules. (See doc. 17 at 41–42). But the problem with this argument is that

a reasonable jury could find, based on the evidence the Board has submitted, that the

Board did not adhere to its promotion policy. (E.g., compare doc. 18-5 at 3) (“Upon

promotion to a new position, an employee will be placed on ‘step 1’ of the new

salary schedule . . . .”), with (doc. 18-1 at 12 ¶ 12) (skipping this step and calculating

a 5% increase to Ms. Ladd’s daily rate). So the court rejects this argument because

it is not supported by the evidence.

The Board highlights that Mr. Williams cannot assert claims based on clerical

errors in compensation calculations. (See, e.g., doc. 17 at 42). Generally, that

statement of law is true. See, e.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,

756 (1998) (explaining that workplace discrimination claims require “intentional

conduct”). Although the record is replete with “clerical errors” (doc. 17 at 42), the

Board misinterprets Mr. Williams’s claim. Mr. Williams contends that the Board has

not compensated its employees in accordance with the promotion policy. (See, e.g.,

doc. 26 at 6). The Board argues that it has adhered to its promotion policy and pay

schedules (see doc. 17 at 41–42), and the evidence does not clearly support the

Board’s position.

The court has limited its analysis to what the Board has argued. See Fils, 647

F.3d at 1284. As the movant, the Board must demonstrate that it is entitled to

summary judgment. See Fed. R. Civ. P. 56(a) (“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.”’) (emphasis added). The

Board has not carried that burden with the arguments it has made; accordingly, the

court WILL DENY the Board’s motion as to Mr. Williams’s discriminatory pay

claims.

Hl. CONCLUSION

The court WILL GRANT IN PART and DENY IN PART the Board’s

motion. (Doc. 16). The court WILL ENTER SUMMARY JUDGMENT in the

Board’s favor as to Mr. William’s failure-to-promote claims. This case will proceed

to trial as to Mr. Williams’s discriminatory pay claims.

The court will enter a separate partial summary judgment consistent with this

memorandum opinion.

DONE and ORDERED this June 4, 2024.

bo

UNITED STATES DISTRICT JUDGE

22