United States District Court, E.D. Texas, Marshall Division
PAYNE UNITED STATES MAGISTRATE JUDGE
before the Court are motions for summary judgment filed by
Defendant City of Naples (Dkt. No. 61), and by Defendants
Danny Mills and Dennis Chartier (Dkt. No. 48). Both motions
are granted in part and denied in part as follows.
Arthur Mitchell has been employed by the City of Naples,
Texas, since April 2007. On September 21, 2016, he filed this
action against the City and its current and former mayors
alleging that he was paid less than similarly situated white
employees because he is African-American. Mitchell has
identified three white comparators to support his allegation
of disparate pay: Henry Vissering, Dwayne Heard, and Loyd
Davlin. Defendants' motions raise four grounds for
dismissal: (1) that none of the comparators are similarly
situated and thus cannot serve as the basis for a valid claim
of disparate pay; (2) that Vissering and Heard cannot be
valid comparators because their employment terminated before
Plaintiff's limitations period began; (3) that neither of
the mayors can be legally responsible for any pay disparity
because only the City Council can set the pay of city
employees; and (4) there can be no pay claim against the
mayors in their individual capacities under 42 U.S.C.
§1981 (Oden v. Oktibbeha County, 246 F.3d 458,
462 (5thCir. 2001).
summary judgment record supports the Defendants' position
that Henry Vissering is not a proper comparator for Plaintiff
because Vissering was a superintendent with certain very
different job duties than Plaintiff. Whether or not Plaintiff
could have performed Vissering's duties, and even whether
Plaintiff did sometimes perform them, is not the issue.
Plaintiff's job was materially and indisputedly different
from Vissering's. Accordingly, the motions will be
granted to that extent.
Loyd Davlin eventually became a superintendent, there is a
genuine dispute of fact as to whether he was hired as such.
There are also genuine disputes as to the extent of his
relevant experience at the time he was hired and to what
extent his job duties differed significantly from
Plaintiff's. Similarly, there are genuine disputes as to
the similarity of the job responsibilities of Dwayne Heard
during the brief period of his employment, and the Court
cannot conclude that he is not a proper comparator.
point out that both Heard and Vissering left the City's
employment long before the actionable time frame for
Plaintiff's claims, which the parties agree would be
September of 2012. Of course, the Court has already
determined that Vissering is not a proper comparator.
However, the fact that Heard left the City in March of 2012
does not prevent Plaintiff from relying on Heard's pay to
support his claim that his own pay for nearly identical work
was discriminatorily lower. The cases relied upon by
Defendants, such as Frazier v. Sabine River
Authority, 509 F.App'x 370 (5th Cir.
2013), merely stand for the proposition that a plaintiff
cannot recover for a job that he performed beyond the statute
of limitations. They do not hold that a plaintiff cannot rely
upon, as evidence of discrimination, the higher pay that a
comparator received for doing the same job before the
limitations period. Brinkley-Obu v. Hughes Training,
Inc., 36 F.3d 336, 345 (4th Cir. 1994).
Accordingly, the motions are denied with respect to
comparison with Heard and Davlin.
offer considerable evidence in support of their argument that
only the City Council can set salaries, and thus Mayor
Chartier (2015 - present) and former Mayor Mills (2011 -
2015) cannot be liable. However, Plaintiff has offered
sufficient summary judgment evidence to create a genuine
dispute of fact, by showing that there is no evidence that
the City Council took action to set the starting salaries of
Plaintiff and the comparators, meaning that the Mayors must
have done that when they hired them, and also by showing
inconsistent testimony by various city employees on that
issue. Indeed, the Texas statutes on Type A general law
municipalities like Naples also tend to support
Plaintiff's argument about the power of the mayors. Local
Government Code §22.042(a). Even though neither Mills
nor Chartier hired Plaintiff initially and set his pay, Mills
did hire Davlin and both had authority over Plaintiff and
Davlin and their pay during the period in which Plaintiff
alleges that he was paid less due to his race. There is also
no serious argument about whether the right to be free from
racial discrimination in the terms and conditions of
employment was a clearly established constitutional right at
all relevant times.
argue that there can be no pay claim against the mayors in
their individual capacities under 42 U.S.C. §1981. In
Oden v. Oktibbeha County, 246 F.3d 458, 462 (5th
Cir. 2001), the Court clearly held that elected officials
cannot be liable for such pay claims in their individual
capacities. Since the official capacity claims against the
mayors have already been dismissed (Dkt. No. 18), there can
be no doubt that ...