The plaintiff-petitioner Cathy McCord-Baugh properly invoked our Rule 39(a)(1)(D), Ala. R.App. P., certiorari jurisdiction to determine whether the decision of the Court of Civil Appeals in her case, McCord-Baugh v. Birmingham City Board of Education,894 So.2d 672 (Ala.Civ.App. 2002), conflicts with the decision of the United States Supreme Court in Village of Willowbrook v.Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). Accordingly, to review that one claim, we granted her petition for a writ of certiorari. Having reviewed the record and considered the law, we reverse and remand.
Procedural Facts
The plaintiff sued the Birmingham City Board of Education, the superintendent of education of the Birmingham City Schools, and the individual members of the Board of Education. The narrow scope of our certiorari review reaches only the plaintiff's claim, under
42 U.S.C. § 1983, that the defendants violated the plaintiff's right to the equal protection of the laws as guaranteed by the
Fourteenth Amendment to the United States Constitution. She alleged that the defendants intentionally treated her differently from, by paying her less than, others similarly situated. She asserted that the dissimilar treatment of her — the continuing refusal to pay her equally — was arbitrary and capricious and was not rationally related to any legitimate governmental purpose.
The defendants moved for summary judgment on multiple grounds. As stated in the motion for summary judgment, the only ground pertinent to our review reads:
"Plaintiff's equal protection claim brought pursuant to the Fourteenth Amendment of the United States Constitution must fail as a matter of law because a public official cannot violate a Plaintiff's equal protection rights unless the Defendant has the intent to discriminate. Parks v. City of Warner Robbins, Georgia, 43 F.3d 609, 616 (11th Cir. 1995); Mencer v. Hammonds, 134 F.3d 1066, 1070 (11th Cir. 1998). Plaintiff has not alleged or presented facts evidencing proof of the requisite intent to discriminate."
This ground asserts, in essence, that, in the absence of intent to discriminate, arbitrary and capricious differential treatment does not violate the Fourteenth Amendment. This ground does not deny that the defendants' treatment of the plaintiff was arbitrary, capricious, and not rationally related to any legitimate governmental purpose. The plaintiff responded, in pertinent part:
"Plaintiff's first cause of action is violation of her . . . Federal equal protection rights caused by defendants' `irrational and wholly arbitrary' refusal to pay plaintiff the same as similarly situated
Community School Coordinators. The facts are undisputed in this case that Plaintiff is paid less `a different salary arrangement' than other similarly situated community school coordinators and thus Plaintiff meets the prima facie case for violation of Federal . . . equal protection rights. Village of Willowbrook v. Olech, [528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000)]. . . ."
The trial court granted the defendants summary judgment on all of the plaintiff's claims. She appealed. Affirming the judgment of the trial court, the Court of Civil Appeals held, in pertinent part:
"To state an equal-protection claim, McCord-Baugh must have alleged and shown that she was (1) treated differently from similarly situated persons and (2) that the Board treated her differently for the purpose of discriminating against her on an impermissible basis. See GJR Investments, Inc. v. County of Escambia, Florida, 132 F.3d 1359, 1367 (11th Cir. 1998); Strickland v. Alderman, 74 F.3d 260, 264-65 (11th Cir. 1996); E T Realty v. Strickland, 830 F.2d 1107, 1109, 1112-13 (11th Cir. 1987). We will address the latter requirement.
"McCord-Baugh must show that any differential treatment she received from the Board was motivated by an intention to discriminate on an impermissible basis. E T Realty, 830 F.2d at 1113. In other words, in order to satisfy the second requirement for an equal-protection claim and to prevail, a showing of intentional discrimination is required.
"A showing of unequal treatment of similarly situated persons does not establish an equal-protection claim, absent proof that the defendant acted with discriminatory intent. Id. Discriminatory impact, without more, does not violate the Equal Protection Clause. Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976).
"McCord-Baugh responds to the Board's argument in this regard merely by arguing that there is `record evidence that this unequal treatment — paying McCord-Baugh less than others who perform the same job — has been intentional on the part of defendants.' However, it is not the intent to do a given act that is required in order to satisfy the second element of an equal-protection claim; it is the intent to discriminate that is required. `"Discriminatory purpose" . . . implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker . . . selected . . . a particular course of action at least in part "because of," not merely "in spite of," its adverse effects upon an identifiable group.' Personnel Adm'r of Massachusetts v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979) (citation omitted; footnote omitted); see also Jones v. White, 992 F.2d 1548, 1573 (11th Cir.), cert. denied, 510 U.S. 967, 114 S.Ct. 448, 126 L.Ed.2d 381
(1993).
"We do not find substantial evidence in the record of an intent by the defendants to discriminate against McCord-Baugh on the basis of her race, her gender, or any other impermissible ground. . . ."
McCord-Baugh, 894 So.2d at 675-76. These holdings are the only holdings in the opinion of the Court of Civil Appeals deciding adversely to the plaintiff an equal-protection issue raised by the defendants' motion for summary judgment. The Court of Civil Appeals further held, without a supporting ground in the defendants' motion for summary judgment, that the defendants had shown legitimate, nondiscriminatory reasons for their decision not
to pay the plaintiff as a community-school coordinator.
Substantive Facts
In November 1989, the Board of Education hired the plaintiff as a "special-projects coordinator." She signed a one-year employment contract. The Board of Education continued employing her. In 1992, she became tenured. The same year, the Board of Education transferred her to Parker Community School to replace the "community-school coordinator" for Parker Community School. Since 1992, the plaintiff has performed the duties of a community-school coordinator. She supervises the same number of employees as any other community-school coordinator and prepares the same community educational program as any other community-school coordinator. Her service area is comparable to the other community-school coordinators' service areas.
The plaintiff's performance evaluations identify her position as a "Coordinator" in the division titled "Parker Community School." Before her transfer in 1992, an organizational chart showed 11 community-school coordinators. After her transfer to replace one of them, organizational charts continued to show 11 community-school coordinators.
The Birmingham Public Schools Directory identifies the plaintiff as the "Coordinator" at Parker Community School, precisely as it lists other community-school coordinators at their respective Community Schools. Likewise, a printout of employees for Parker Community School shows her as the "Coordinator" of that school.
In a 1994 letter to the senior assistant superintendent, personnel division, Dr. Peggy F. Sparks, then director of the Community Education Department of the Birmingham Public Schools, identified the plaintiff as "an eleven month special projects coordinator" and as "coordinator of Parker Community School." In a 1997 letter to Geraldine Bell, interim superintendent of the Board of Education, Clifton T. Griffin, acting director of the Community Education Department, stated that the plaintiff, a special projects coordinator, had a different salary arrangement than "regular Community School Coordinators."
In December 1998, the plaintiff wrote a "Personnel Specialist" with the Birmingham Public Schools a letter requesting a salary adjustment to be paid according to the salary schedule for a community-school coordinator. In March 1999, Dr. Sparks, then senior executive director of Parent, Community, and Student Support Programs, wrote the superintendent of the Birmingham Public Schools a letter stating that she had transferred the plaintiff "to a program assistant slot at Parker for Zone I, yet continued her same salary and job description."
In March 1999, Clifton T. Griffin, who was then the coordinator for the West End Community School, wrote Otis Dismukes, the acting director of the Community Education Department, a letter stating that, after he discussed the plaintiff's duties and pay with Mr. Dismukes and Dr. Sparks, "it is ascertained that there are no funds available in the budget for an increase in the salary of any employee, and . . . the only way she can be paid for a regular community education coordinator's salary is to apply for the position when one becomes available and is selected for the position." Shortly thereafter, the Board of Education approved a $17,644 per year pay raise for Dr. Sparks.
Standard and Rules of Review
"On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate
appellate court. Therefore, we must apply de novo the standard of review that was applicable in the Court of Civil Appeals."
Exparte Toyota Motor Corp.,
684 So.2d 132,
135 (Ala. 1996). Summary judgment is appropriate only when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), Ala. R. Civ. P., and
Dobbs v. Shelby County Econ. Indus. Dev.Auth.,
749 So.2d 425 (Ala. 1999). The court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable doubts in favor of the nonmoving party.
System Dynamics Int'l, Inc. v. Boykin,
683 So.2d 419
(Ala. 1996).
If substantial evidence in the record supports a cognizable claim pleaded by the plaintiff, the defendant is not due a summary judgment on that claim, even if the record also contains substantial countervailing evidence. See Hollingsworth v. Cityof Rainbow City, 826 So.2d 787 (Ala. 2001); McGinnis v. JimWalter Homes, Inc., 800 So.2d 140 (Ala. 2001); Ex parte AlfaMut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala. 1999). Unless a motion for summary judgment challenges the existence of evidence to support an essential element of the nonmoving party's case, the motion does not shift to the nonmoving party any burden to produce evidence supporting that essential element, and the motion will not support a summary judgment grounded on an absence of supporting evidence or the existence of undisputed countervailing evidence on that essential element. Kennedy v.Western Sizzlin Corp., 857 So.2d 71, 78 (Ala. 2003); Tanner v.State Farm Fire Cas. Co., 874 So.2d 1058, 1068 n. 3 (Ala. 2003); Liberty Nat'l Life Ins. Co. v. University of AlabamaHealth Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala. 2003);Fountain v. Filson, 336 U.S. 681, 683, 69 S.Ct. 754,93 L.Ed. 971 (1949).
Law and Analysis
The plaintiff contends that the holding by the Court of Civil Appeals that, in order to withstand summary judgment on her equal-protection claim, she must allege and prove that the defendants treated her differently from other similarly situated employees with the intent to discriminate against her on the basis of a suspect class, such as race, gender, or religion, or on some other impermissible ground, conflicts with
Olech,supra, wherein the United States Supreme Court, affirming the United States Court of Appeals for the Seventh Circuit on a ground different from that invoked by the Seventh Circuit, held:
"Our cases have recognized successful equal protection claims brought by a `class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. See Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340 (1923); Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U.S. 336, 109 S.Ct. 633, 102 L.Ed.2d 688 (1989). In so doing, we have explained that `"[t]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents."' Sioux City Bridge Co., supra, at 445, 43 S.Ct. 190 (quoting Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 352, 38 S.Ct. 495, 62 L.Ed. 1154 (1918)).
". . . The complaint also alleged that the Village's demand was `irrational and wholly arbitrary' and that the Village ultimately connected her property after
receiving a clearly adequate 15-foot easement. These allegations, quite apart from the Village's subjective motivation, are sufficient to state a claim for relief under traditional equal protection analysis."
528 U.S. at 564-65,
120 S.Ct. 1073 (emphasis added). Although the United States Supreme Court has applied the "class of one" equal-protection violation analysis only to claims of equal-protection violations in land use cases, various federal appellate courts recently have applied or discussed the "class of one" analysis in cases of other kinds of equal-protection violations:
Cobb v. Pozzi,
352 F.3d 79 (2d Cir. 2003);
DeMuriav. Hawkes,
328 F.3d 704 (2d Cir. 2003);
African Trade Information Ctr., Inc. v. Abromaitis,
294 F.3d 355 (2d Cir. 2002);
Cruz v. Town of Cicero,
275 F.3d 579 (7th Cir. 2001);
Giordano v. City of New York,
274 F.3d 740 (2d Cir. 2001);
Bartell v. Aurora Public Schools,
263 F.3d 1143, 1149 (10th Cir. 2001);
Hilton v. City of Wheeling,
209 F.3d 1005 (7th Cir. 2000).
See Williams v. Pryor,
240 F.3d 944, 951 (11th Cir. 2001).
On a challenge to a jury verdict in favor of the plaintiffs on equal-protection claims brought by officers who were disciplined for behavior for which other similarly situated officers were not disciplined, the United States Court of Appeals for the Second Circuit stated:
"[T]he plaintiffs' Olech-based equal protection claim is not dependent on their ability to prove that they were disciplined for an impermissible reason, i.e., for their COBA [Corrections Officers' Benevolent Association] membership. Rather, under Olech, the plaintiffs can recover if they can show that they were treated differently from similarly situated officers, such as Officers Conway and Vanderwerff, and that there was `no rational basis for the difference in treatment.' Olech, 528 U.S. at 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060. Clearly, the evidence that the defendants disciplined the plaintiffs based on a belief that the plaintiffs were engaged in an unlawful job action makes the task of showing irrational treatment considerably more difficult; however, it does not foreclose the plaintiffs' pursuit of such a claim under Olech. A jury could find that the defendants' subjective belief was unwarranted and that such an unwarranted belief resulted in the irrational treatment of the plaintiffs. Accordingly, we agree with the plaintiffs that the evidence adduced at trial was sufficient to withstand a motion for judgment as a matter of law on their Olech-based equal protection claim."
Cobb v. Pozzi, 352 F.3d at 99-100.
Accord African Trade Information Ctr., Inc. and
Giordano, supra.
Reversing the dismissal of the equal-protection violation claim by a husband and a wife that police treated them differently from other citizens complaining of harassment, the United States Court of Appeals for the Second Circuit stated:
"As recognized by the district court, the DeMurias' equal protection claim is governed by the Supreme Court's holding in Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam). There, the Court held that a successful equal protection claim may be `brought by a "class of one," where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.' Id. at 564, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060. Olech sued the Village after it required her to grant a 33-foot easement, as opposed to the 15-foot easement required from other property
owners, to connect to the Village's water supply. Id. at 563, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060. Olech claimed that the Village's demand for an additional easement was `irrational and wholly arbitrary' and was made with the intent to deprive her of her rights or in reckless disregard of her rights. Id. The lower court dismissed Olech's complaint on the pleadings, finding her allegations to be insufficient to state a judicially cognizable equal protection claim. Id. The Seventh Circuit reversed, concluding that an allegation of subjective ill will was adequate to make out an equal protection violation.
"The Supreme Court affirmed on a different rationale. The Court found that Olech's complaint could `fairly be construed as alleging' differential treatment from similarly situated property owners which, coupled with Olech's allegation that the Village's conduct was irrational and wholly arbitrary, was `sufficient to state a claim for relief under traditional equal protection analysis.' Id. at 565, 120 S.Ct. 1073. In so holding, the Court found it unnecessary to consider the question of the Village's subjective motivation. Id."
DeMuria, 328 F.3d at 706.
Affirming a summary judgment entered against a plaintiff-husband and a plaintiff-wife on their claims for an equal-protection violation by a school district in the allegedly wrongful termination of the husband's employment, the United States Court of Appeals for the Tenth Circuit stated:
"We also noted that the Supreme Court recently stated, `Our cases have recognized successful equal protection claims brought by a `class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.' Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed. 1060 (2000) (per curiam) (quotation omitted). . . ."
Bartell, 263 F.3d at 1149. While the
Bartell Court recognized that an
Olech claim does not require motivation by an impermissible animus as an essential element, the
Bartell Court held that the plaintiff had not asserted an
Olech claim but instead had chosen and alleged, but had not proved, the distinct theory that the unequal treatment was motivated by an impermissible animus rather than that the unequal treatment was irrational and arbitrary.
The cases decided by the United States Court of Appeals for the Seventh Circuit conflict with those of the Second Circuit and the Tenth Circuit. Cruz and Hilton, supra. The Seventh Circuit acknowledges that a plaintiff asserting an equal-protection claim need not prove his or her status as a member of a suspect class to invoke the protection of the Equal Protection Clause. Id.
The Seventh Circuit also recognizes that a plaintiff asserting an equal-protection claim must prove two elements. The first, as inOlech and the cases from the Second Circuit and Tenth Circuit, is unequal treatment under the laws. However, for the second element, the Seventh Circuit, relying on Justice Breyer's special concurrence in Olech, and insisting on their original holding the United States Supreme Court declined to address in Olech, has, in their word, "gloss[ed]" the "irrational and wholly arbitrary" second element of Olech to mean
"that the defendant deliberately sought to deprive him of the equal protection of the laws for reasons of a personal nature unrelated to the duties of the defendant's position."
Hilton, 209 F.3d at 1008, and
Cruz, 275 F.3d at 587.
Section 1 of the Fourteenth Amendment reads:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny any person within its jurisdiction the equal protection of the laws."
The text of this Amendment prohibits all denials of equal protection, not just those motivated by an impermissible animus. Thus a strict construction of the Amendment itself supports the conclusion that the majority opinion in Olech, quoted supra, means exactly what it says, see Cobb, African Trade Information Ctr., Inc., and Giordano, supra, without the limitation nevertheless retained by the Seventh Circuit in Cruz
and Hilton to the effect that impermissible motivation is an essential element of an Olech claim.
According to Olech, the essential elements of a claim for a federal equal-protection violation to a "class of one" are only that the plaintiff "has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Olech, 528 U.S. at 564,120 S.Ct. 1073. Accordingly, the holdings by the Court of Civil Appeals to the effect that, to withstand summary judgment, the plaintiff's equal-protection claim must include allegations and proof that the defendants treated her differently for the purpose of discriminating against her on an impermissible basis and to the effect that the absence of "substantial evidence in the record of an intent by the defendants to discriminate against [the plaintiff] on the basis of her race, her gender, or any other impermissible ground" defeats her equal-protection claim and justifies the summary judgment, McCord-Baugh, 894 So.2d at 675-76, conflict with Olech, supra. The plaintiff's allegations, unchallenged by the defendants' motion for summary judgment, that the defendants intentionally, arbitrarily, capriciously, and irrationally treated her differently from, less favorably than, similarly situated employees performing the duties of a community-school coordinator, are sufficient for the requirements of Olech, supra.
Although the defendants argue before us, and argued before the Court of Civil Appeals, that rational reasons exist for their differential treatment of the plaintiff,
"`[m]otions and arguments of counsel are not evidence.' `[S]tatements in motions are not evidence and are therefore not entitled to evidentiary weight.' `[B]riefs submitted in support of motions are not evidence to be considered by the Court in resolving a summary judgment motion.'"
Fountain Fin., Inc. v. Hines,
788 So.2d 155,
159 (Ala. 2000) (citations omitted).
Accord Ex parte Coleman,
861 So.2d 1080
(Ala. 2003). The record is devoid of evidentiary material establishing a rational basis for the defendants' treating the plaintiff differently from other coordinators. Indeed, the defendants' motion for summary judgment did not challenge the plaintiff's allegations that the defendants' continuing refusal to pay her equally was arbitrary, capricious, and not rationally related to any legitimate governmental purpose. Thus the motion for summary judgment did not shift any burden to the plaintiff to produce her evidence supporting these allegations.
Kennedy,Tanner, Liberty Nat'l, and
Filson, supra. Therefore, the motion for summary judgment did not, does not, and would not support summary
judgment grounded either on an absence of supporting evidence or the existence of undisputed countervailing evidence on these allegations.
Id. Consequently, the Court of Civil Appeals erred in holding that "the defendants have shown legitimate, nondiscriminatory reasons for their decision not to pay McCord-Baugh as a community-school coordinator."
McCord-Baugh, 894 So.2d at 676.
The defendants argue to us as they did to the Court of Civil Appeals that the plaintiff's equal-protection claim is barred by the applicable statute of limitations even if the claim would otherwise withstand summary judgment. The defendants argue to us that, on the ground of the statute of limitations, we should affirm the judgment of the Court of Civil Appeals affirming the summary judgment even though the decision of the Court of Civil Appeals expressly rejects the defendants' statute-of-limitations defense to the plaintiff's equal-protection claim,McCord-Baugh, 894 So.2d at 676. The defendants, however, have not properly invoked our Rule 39(a)(1), Ala. R.App. P., certiorari jurisdiction to review this statute-of-limitations holding against the defendants. See Marshall v. State,884 So.2d 900, 902 (Ala. 2003) (clarifying Ex parte Fountain,842 So.2d 726 (Ala. 2001)). Thus, this holding by the Court of Civil Appeals remains in full force and effect without our reviewing it or expressing any opinion on it.
The defendants also argue several defenses not reached or not developed in the opinion by the Court of Civil Appeals. Our reversal of the affirmance of the summary judgment on the plaintiff's equal-protection claim neither forecloses nor invites further consideration of these defenses by the Court of Civil Appeals. See Ex parte Helms, 873 So.2d 1139 (Ala. 2003).
Conclusion
The decision of the Court of Civil Appeals is reversed for its conflict with
Olech, supra, and is remanded for proceedings consistent with this opinion. Because we have not accepted for certiorari review the affirmance of the summary judgment on the plaintiff's claim that the defendants violated their own policies and thereby breached the contract between the Board and the plaintiff, this part of the decision of the Court of Civil Appeals remains in full force and effect, without our reviewing it or expressing any opinion on it.
REVERSED AND REMANDED.
WOODALL, J., and BEATTY, Special Justice,* concur.
SEE, LYONS, and HARWOOD, JJ., concur specially.
HOUSTON, BROWN, and STUART, JJ., dissent.