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Prewitt v. City of Northport

United States District Court, N.D. Alabama, Western Division

June 23, 2017

KENNY PREWITT, Plaintiff,
v.
CITY OF NORTHPORT, ET AL., Defendant.

          MEMORANDUM OPINION

          R. D AVID PROCTOR, UNITED STATES DISTRICT JUDGE

         Although there is a plethora of similar quotes attributed to others, Woody Allen, the zany actor, writer, director, and playwright once reportedly said “80 per cent of success is just showing up.” In this case, Plaintiff Kenny Prewitt did not heed Mr. Allen's advice. As the undisputed evidence makes clear, on five occasions over a period of about a year, Mr. Prewitt did not show up on time for work.

         This employment discrimination case is before the court on Defendant's Motion for Summary Judgment. (Doc. # 16). The Motion has been fully briefed. (Docs. # 16, 18 and 19). For the reasons discussed below, Defendant's Motion is due to be granted.

         I. Relevant Undisputed Facts[1]

         Plaintiff Kenny Prewitt was employed by the City of Northport as a laborer. He was hired on February 8, 1987, and worked in the Public Works Department. (Doc. # 17 pp. 20-22[2]; Ex. 31).

         In December 2011, Brooke Starnes became Director of the Northport Public Works Department. (Doc. # 17 p. 32-37; Doc. # 17 at 105-113 3). One of the first things that Starnes did as Director of Public Works was to issue a new attendance policy. (Doc. # 17 at 105-113 ¶¶ 5, 6). On December 6, 2011, she issued a memorandum to all employees regarding the policy titled “Change of Procedure.” The Memo set forth the following new rules:

• Any employee that arrives at work after 7:00 a.m. is late.
• Crews must be off premises in the morning by 7:15 a.m. and in no earlier than 3:15 p.m.
• No call-ins after 6:30 a.m. Employees must call his/her superintendent AND leave a voicemail on the upstairs office phone (205-333-3003).
• THESE RULES ARE MANDATORY AND ARE NOT OPTIONAL; FAILURE TO ABIDE BY ANY OF THESE RULES WILL RESULT IN DISCIPLINARY ACTION.

(Doc. # 17 at 105-113 6; Ex. 1).

         All Public Works employees were also instructed on the new policy changes in a December 7, 2011 meeting. At that meeting, employees were given a Public Works Department Memo addressing how employees needed to request leave, when each employee needed to call in, and how each employee was to call in every day if they were not able to come to work. Employees, including Plaintiff, signed an acknowledgement of attendance at the meeting and of receipt of the new procedures. (Doc. # 17 at 105-113 7; Doc. # 17 pp. 34, 38-39). Plaintiff acknowledges that he was fully aware of the call-in procedure, and knew to call both his superintendent and the upstairs phone. (Doc. # 17 p. 39).

         A. Plaintiff Receives a February 22, 2012 Verbal Warning

         Not long after the new policy was implemented, on February 22, 2012, Plaintiff did not call in until after 7:30 a.m. Under the City's progressive discipline policy, Plaintiff received a verbal warning for failing to comply with the new call-in procedures. Plaintiff told his supervisor that he understood and would correct the problem, but he refused to sign the warning. (Doc. # 17 pp. 41-43). Plaintiff did not appeal the verbal warning. (Doc. # 17 p. 43).

         B. Plaintiff Receives a May 18, 2012 Written Warning

         On May 18, 2012, Plaintiff was absent from work. According to the warning he received, Plaintiff did not have approved leave and failed to call in to his supervisor and the Public Works office. (Doc. # 17 pp. 44-46). Plaintiff made a verbal request for leave, but he acknowledged that he understood that verbal requests did not comply with the new Attendance Policy. (Id.). Pursuant to the City's progressive discipline policy, Plaintiff received a written warning for his second Attendance Policy violation. On May 21, 2012, Plaintiff signed a form acknowledging the violation and receipt of the written warning. (Doc. # 17 pp. 44-45, Ex. 3; Doc. # 17 at 105-113 &11). In the warning, Plaintiff was explicitly warned that the “next occurrence may result in suspension without pay.” (Doc. # 17 p. 46, Ex. 3).

         C. Plaintiff is Suspended Without Pay on June 6, 2012

         Less than one month later, on June 6, 2012, Plaintiff did not report to work at 6:00 a.m. for roll call as scheduled, nor had he completed a leave request. He did not call in before the prescribed time, 5:30 a.m., nor did he leave a voicemail at the Public Works' office. Plaintiff called the department secretary at approximately 8:30 a.m. to report that he was on his way to work, and when he arrived at 9:00 a.m., he stated that he had overslept. (Doc. # 17 pp 47-49, Ex. 11).

         Plaintiff was suspended without pay for three (3) days for this incident. (Doc. # 17 pp. 49 - 51, Ex. 11). The suspension notice warned that “Future problems of this nature will result in other disciplinary action up to and including termination.” Id. Plaintiff appealed the suspension to the City Administrator, and asked for a Pre-Disciplinary Hearing. (Doc. # 17 p. 50). Following a hearing, the City Administrator affirmed Plaintiff's suspension without pay for three days. (Doc. # 17 p. 52). Plaintiff initially appealed to the Northport Civil Service Board, but he withdrew his appeal and took the three-day suspension without pay. (Doc. # 17 pp. 53 - 54, Exs. 13-14).

         D. Plaintiff's First Termination on August 24, 2012

         Not long after his suspension without pay, Plaintiff again failed to show up for work on time without calling. (Doc. # 17 pp. 56-57). The disciplinary notice for this event stated:

“On Friday, August 24, 2012, you did not report to work at 6:00 a.m. for roll call as scheduled, nor did you complete a leave request form prior to this occurrence. You did not call in to report your absence before the prescribed time (5:30 a.m.), nor did you call and leave a voicemail at the Public Works' office. At approximately 9:00 a.m., you arrived at City Hall for our employee meeting. You stated that you had been at the hospital and couldn't call because you had lost your phone.”

(Doc. # 17 pp. 56-57; Ex. 15). Plaintiff signed the disciplinary warning. Because it was his fourth warning, Plaintiff was terminated under the City's progressive discipline policy. (Doc. # 17 pp. 57 - 58; Ex. 15).

         E. The City Administrator Reduces Plaintiff's Termination to Suspension.

         Plaintiff appealed his August 24, 2012 termination to the City Administrator. After a Pre-Disciplinary hearing, on September 5, 2012, Plaintiff's termination was reduced to a fifteen day suspension without pay. In making this decision, the City Administrator specifically noted that: “[t]he next step for Mr. Prewitt in progressive discipline will be termination of employment.” (Doc. # 17 pp. 58- 61; Ex. 16).

         F. Plaintiff's Second Termination on November 30, 2012

         Three months later, Plaintiff again failed to report for work. Because his last warning indicated that the next step in progressive discipline would be termination, Plaintiff was terminated for this offense. (Doc. # 17 pp. 62-63; Ex. 17). The write up indicated as follows:

“On Friday, November 30, 2012, Mr. Prewitt did not report to work at Public Works. He did not fill out a “leave request form” in advance, nor did he call in by the prescribed time (6:30 a.m.) Friday morning.”

(Doc. # 17 p. 63; Ex. 17). Plaintiff again appealed his termination, but the City Administrator declined to overturn the second termination. Therefore, Plaintiff appealed his termination to the Northport Civil Service Board. (Doc. # 17 p. 65; Ex. 18).

         G. The Civil Service Board Gives Plaintiff One Final Chance in January 2013

         On January 15, 2013, the Northport Civil Service Board held a hearing on Plaintiff's appeal of his second termination. (Doc. # 17 p. 66). At the conclusion of the hearing, the Board agreed to return Plaintiff to work subject to several conditions. (Doc. # 17 p. 67; Ex. 19). Plaintiff was required to sign an agreement as a condition of returning to work. Id. The January 15, 2013 agreement between Plaintiff and the City of Northport contained the following provisions:

1. Kenny Prewitt agrees to resign as an employee of the City of Northport on the first day of his ...

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