United States District Court, N.D. Alabama, Western Division
AVID PROCTOR, UNITED STATES DISTRICT JUDGE
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.
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
Relevant Undisputed Facts
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; Ex. 31).
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
• 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
(Doc. # 17 at 105-113 ¶ 6; Ex. 1).
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).
Plaintiff Receives a February 22, 2012 Verbal
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).
Plaintiff Receives a May 18, 2012 Written Warning
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,
Plaintiff is Suspended Without Pay on June 6, 2012
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,
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).
Plaintiff's First Termination on August 24, 2012
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).
The City Administrator Reduces Plaintiff's
Termination to Suspension.
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).
Plaintiff's Second Termination on November 30,
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).
The Civil Service Board Gives Plaintiff One Final Chance
in January 2013
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 ...