MEMORANDUM OPINION AND ORDER
ABDUL K. KALLON, District Judge.
Allen Isom alleges claims of race discrimination under Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (Count I), and violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (Count II), against his former employer. The court presently has for consideration the Birmingham Water Works Board's motion for summary judgment, doc. 20, which is fully briefed, docs. 20-1; 28-1; 31, and ripe for review. For the reasons stated herein, the motion is due to be granted as to Count I, and denied as to Count II.
I. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), summary judgment is proper "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." "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (alteration in original). The moving party bears the initial burden of proving the absence of a genuine dispute of material fact. Id. at 323. The burden then shifts to the non-moving party, who is required to go "beyond the pleadings" to establish that there is a "genuine issue for trial." Id. at 324 (internal citations and quotation marks omitted). A dispute about a material fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 244 (all justifiable inferences must be drawn in the non-moving party's favor). Any factual dispute will be resolved in the non-moving party's favor when sufficient competent evidence supports that party's version of the disputed facts. But see Pace v. Capobianco, 238 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the non-moving party's favor when that party's version of events is supported by insufficient evidence). However, "mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion." Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, "[a] mere `scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that a jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
II. FACTUAL BACKGROUND
Isom, who is African-American, worked for the Board as a District Supervisor. See doc. 27-1 at 2. Isom's duties included "maintaining work order, work order requests, working with customers, inspect[ing] . . . work done, calculat[ing] requirements for concrete and concrete requisition, measur[ing] work and enter[ing] measurements on drawing[s], reading and interpreting blue prints, [and] coordinat[ing] work with other departments, and inspectors." Id. Relevant here, the Board required Isom to submit time entries for himself and the employees he supervised, and issued Isom a company vehicle equipped with a NavMan GPS system to use for work. Doc. 20-7 at 2. During the summer of 2014, while examining Isom's GPS records, Keith Witt, Isom's temporary supervisor, discovered that Isom had recorded false time entries which showed Isom purportedly at work while Isom was actually in non-work locations. Id. at 2-3. The review showed also that Isom used his company vehicle on days and times when he was not actually working. See doc. 20-4 at 2. Significantly, although the Board permitted supervisors to edit their timesheets, it required them to include a "comment" to explain any discrepancies. See doc. 20-7 at 2. Isom undisputedly did not include the required comments on his timesheets. See doc. 20-7 at 2, 4; see generally doc. 28-1 (not disputing this point). Moreover, during a meeting with Witt, Michael Arrington (Isom's direct supervisor), and Charlotte Harris (Human Resources), Isom was unable to explain the discrepancies. Id.
Based on Isom's time discrepancies, the Board conducted an audit of all of the supervisors' timekeeping records and discovered that several other supervisors also had "timekeeping discrepancies which required explanation." Id. at 2-3. Ultimately, after interviewing all supervisors with timekeeping discrepancies, the Board discharged only Isom.
The analysis is divided into two parts. In part A, the court will address Isom's claims of race discrimination, and, in part B, the claim for unpaid overtime compensation.
A. Race Discrimination (Count I)
Isom alleges that racial animus motivated his termination, because "he was held to a higher standard of employment than the similarly situated white employees." Doc. 1 at 4.
The Board, a municipal actor, seeks summary judgment on Isom's section 1981 claim based on Isom's failure to demonstrate a widespread policy or custom of discrimination.
To support his Title VII claim, Isom maintains that the Board's articulated reasons for discharging him — i.e., "falsification of time records, using the [Interactive Voice Recorder] system and editing timesheet to clock in and out for work when not working," doc. 20-3 at 3, are pretextual because of the Board's failure to discharge Jerry Lowe and Larry Calhoun, who purportedly committed more egregious falsification and personal company car usage offenses. As Isom puts it, he was "far from the worst offender," doc. 28-1 at 7, because he only adjusted his payroll by $2,745.74, whereas Lowe and Calhoun adjusted their payroll sheets by $14,649.71 and $6,756.45, respectively, see doc. 20-10 at 8.
Where, as here, "a plaintiff seeks to show disparate treatment of comparators, those individuals must . . . be similarly situated." Foster v. BioLife Plasma Servs., L.P., 566 F. App'x 808, 811 (11th Cir. 2014). See also Silvera v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001). To ensure that the comparator is similarly situated to the plaintiff in "all relevant respects," Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004), the court should inquire "whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways," Burke-Fowler, 447 F.3d at 1323. "When making that determination, we require that the quantity and quality of the comparator's misconduct be nearly identical to prevent courts from second-guessing employers' reasonable decisions." Burke-Fowler, 447 F.3d at 1323 (emphasis added).
Here, Isom has failed to demonstrate that Lowe and Calhoun are similarly situated in all relevant respects. While the audit showed also that these two individuals adjusted their payroll entries, there is no evidence, however, that they engaged in "nearly identical" conduct. Among other things, Isom failed to address the Board's contention that he was not "terminated for simply editing his time entries, [and that] instead, [Isom] failed to follow the requirement to enter comments explaining edits to such time entries and had numerous instances where he recorded hours worked when he was not working." Doc. 31 at 2.
In light of Isom's failure to show that Lowe and Calhoun are similarly-situated comparators in all relevant respects, Isom cannot demonstrate pretext. Accordingly, the Board's motion is due to be granted as to Isom's Title VII claim.
B. FLSA Claim (Count II)
Finally, Isom alleges that the Board violated the FLSA by failing to pay him overtime. According to Isom, he "routinely worked in excess of forty hours per week and was not compensated for any overtime," and the Board "would not pay Isom and other similarly situated persons for any over time until an employee worked over 50 hours per week." Doc. 1 at 3. The Board has moved for summary judgment, stating that its district supervisors fall within the executive exemption to the FLSA, see 29 U.S.C. § 213(a)(1), and that, "as a courtesy to Mr. Isom and the other supervisors, [the Board] paid them straight-time overtime for hours worked in a week in excess of 50," doc. 20-4 at 2.
Courts must "narrowly construe exemptions to the FLSA overtime requirement." Morgan v. Family Dollar Stores, 551 F.3d 1233, 1269 (11th Cir. 2008). Relevant here, the parties dispute whether the Board compensated Isom on a salary basis
IV. CONCLUSION AND ORDER
For the reasons stated above, the Board's motion for summary judgment, doc. 20, is
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
PRE-TRIAL DOCKET HON. ABDUL K. KALLON, PRESIDING
This case is set for a pre-trial hearing pursuant to Rule 16 of the Federal Rules of Civil Procedure. A conference-type hearing will be held in chambers in the United States Courthouse in Birmingham, Alabama at the time indicated.
The hearing will address all matters provided in Rule 16, including the limitation of issues requiring trial, rulings on pleading motions, and settlement possibilities.
Counsel attending the conference are expected to be well-informed about the factual and legal issues of the case, and to have authority to enter appropriate stipulations and participate in settlement discussions.
Promptly upon receipt of this notice, plaintiff's counsel is to initiate discussions with other counsel aimed at ascertaining which basic facts are not in dispute, at clarifying the parties' contentions (for example, just what is denied under a "general denial") and at negotiating workable procedures and deadlines for remaining discovery matters.
A sample of a proposed Pre-trial Order is available on the Chamber web site (http://www.alnd.uscourts.gov/content/judge-abdul-k-kallon) to illustrate the format preferred by the court and also to provide additional guidance and instructions. Each order must, of course, be tailored to fit the circumstances of the individual case.
Counsel drafting this proposed order should consider the utility this document will provide for the litigants, the jury, and the court alike. The court anticipates using the pretrial order to (1) identify and narrow the legal and factual issues remaining for trial, and (2) provide jurors with the legal and factual context of the dispute. This order should not revisit at length arguments made in previous filings with the court, nor should it serve as another venue for adversarial posturing. Pretrial orders should be simple, short, and informative.
IN ANY CASE WHERE COUNSEL HAVE ANNOUNCED SETTLEMENT TO THE COURT, A CONSENT JUDGMENT IN SATISFACTORY FORM