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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION MICHAEL BRYANT, JOHN DRAKE, BECKY KELLEY AND HERBERT LOWE, Plaintiffs, v. VERNON JONES, MARILYN BOYD DREW, MORRIS WILLIAMS, RICHARD STOGNER and JOE STONE in their individual capacities and in their official capacities, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 1:04-CV-2462-WSD PLAINTIFFS' STATEMENT OF MATERIAL FACTS AND RESPONSE TO DEFENDANTS' JOINT STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF THEIR RENEWED MOTIONS FOR SUMMARY JUDGMENT Michael J. Bowers Georgia Bar No. 071650 J. Tom Morgan Georgia Bar No. 522675 Christopher S. Anulewicz Georgia Bar No. 020914 James L. Hollis Georgia Bar No. 930998 BALCH & BINGHAM LLP 30 Allen Plaza, Suite 700 30 Ivan Allen Jr. Blvd. N.W. Atlanta, GA 30308 Telephone: (404) 261-6020 Facsimile: (404) 261-3656 Case 1:04-cv-02462-WSD Document 273 Filed 07/14/2006 Page 1 of 145

Parks Lawsuit

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

MICHAEL BRYANT, JOHN DRAKE, BECKY KELLEY AND HERBERT LOWE, Plaintiffs, v. VERNON JONES, MARILYN BOYD DREW, MORRIS WILLIAMS, RICHARD STOGNER and JOE STONE in their individual capacities and in their official capacities, Defendants.

)))))))))))))))

CIVIL ACTION NO. 1:04-CV-2462-WSD

PLAINTIFFS' STATEMENT OF MATERIAL FACTS AND RESPONSE TO DEFENDANTS' JOINT STATEMENT OF UNDISPUTED MATERIAL

FACTS IN SUPPORT OF THEIR RENEWED MOTIONS FOR SUMMARY JUDGMENT

Michael J. Bowers Georgia Bar No. 071650 J. Tom Morgan Georgia Bar No. 522675 Christopher S. Anulewicz Georgia Bar No. 020914 James L. Hollis Georgia Bar No. 930998 BALCH & BINGHAM LLP 30 Allen Plaza, Suite 700 30 Ivan Allen Jr. Blvd. N.W. Atlanta, GA 30308 Telephone: (404) 261-6020 Facsimile: (404) 261-3656

Case 1:04-cv-02462-WSD Document 273 Filed 07/14/2006 Page 1 of 145

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Table of Contents

Page

I. PLAINTIFFS' STATEMENT OF MATERIAL FACTS ............................. 1

A. Summary ........................................................................................ 1

B. The Parties ...................................................................................... 3

C. From January 2001 Through The Present Defendants Have Participated In A Scheme To Eliminate White Employees From DeKalb County In General And In The Parks Department In Particular ........................................................................................ 6

1. Plan To Eliminate White Employees Began In January 2001 When Jones Took Office........................................................ 6

2. Defendants Admitted To Lowe That They Were Attempting To Force Kelley, Bryant, And Drake From Their Positions In The Parks Department Solely Because Those Plaintiffs Are White And Defendants Recruited Lowe To Participate In This Scheme...................................................................... 8

3. The Taped Conversation Between Defendants Stone and Williams Confirms that Jones Had A Scheme To Discriminate Against White Employees................................ 11

4. Others In DeKalb County Confirmed That Jones Had A Scheme To Discriminate Against White Employees .............. 14

a. Chief Moody ................................................................... 15 b. Murray............................................................................ 16 c. Julian............................................................................... 17 d. Douglas........................................................................... 19 e. Flemister.......................................................................... 20

5. The PeopleSoft Reports Produced by Defendants Confirm that Jones Had A Scheme To Discriminate Against White Employees........................................................................... 21

D. Defendants Retaliated Against Plaintiff Lowe For Refusing To Participate In Their Scheme To Discriminate.................................. 24

1. Lowe's Office Moved........................................................... 24

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2. Lowe's Transfer Was Part Of An Artifice To Eliminate Lowe's Job .......................................................................... 24

E. Defendants Discriminated Against Plaintiffs Bryant, Drake, And Kelley Based Solely On Their Race ............................................... 29

1. Defendants Discriminated Against Kelley And Their Conduct Constructively Discharged Her ............................... 29

2. Defendants Discriminated Against Bryant ............................ 38

3. Defendants Discriminated Against Drake ............................. 45

II. PLAINTIFFS’ RESPONSE TO DEFENDANTS’ JOINT STATEMENT OF UNDISPUTED MATERIAL FACTS ................................................ 53

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Pursuant to L.R. 56.1(B)(2)(a), Plaintiffs file their Statement of Material

Facts and Response to Defendants’ Joint Statement of Material Facts as follows:

I. PLAINTIFFS' STATEMENT OF MATERIAL FACTS

A. Summary

On January 1, 2001, Defendant Vernon Jones (“Jones”) took office as the

Chief Executive Officer (“CEO”) of DeKalb County. From the inception of his

administration through the present, Jones, with the active assistance of the

Defendants Richard Stogner ("Stogner"), Joe Stone ("Stone"), Morris Williams

("Williams") and Marilyn Boyd Drew ("Drew"), implemented and executed a plan

to eliminate white managers from DeKalb County generally and from its Parks and

Recreation Department ("Parks Department") specifically. The pervasive racial

discrimination present in Jones’ administration is evidenced by the testimony of

Herbert Lowe, by multiple tape recorded conversations between high ranking

DeKalb County employees and by the drastic changes in the racial composition of

those DeKalb County managerial employees ultimately controlled by Jones.

As documents recently produced by Defendants show, during 4 ½ years of

Jones’ administration, the number of African-American managers over which

Jones has ultimate hiring authority increased drastically. During this same time

period, the number of Caucasian, Asian and Hispanic managers over which Jones

has ultimate hiring authority was essentially unchanged.

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In January, 2001, Jones had hiring authority over 98 managerial employees:

61 were Caucasian; 33 were African-American; 1 was Hispanic; and 3 were Asian.

By August, 2005, Jones had hiring authority over 122 managerial employees: 58

were Caucasian; 60 were African-American; 2 were Hispanic; and 2 were Asian.

In other words, as of August 2005, 24 new management positions were created

over which Jones had ultimate hiring authority and there were 27 additional

African-American managers occupying positions controlled by Jones. At the same

time, in management positions controlled by Jones, Hispanics experienced a net

gain of only 1 position, Asians experienced a net loss of 1 position, and Caucasians

experienced a net loss of 3 positions.

Defendants’ applied their county-wide discriminatory scheme to Plaintiffs

Becky Kelley ("Kelley"), Michael Bryant ("Bryant"), and John Drake ("Drake"),

who had collectively served the citizens of DeKalb County for over sixty (60).

Defendants’ harassed these Plaintiffs in an endless attempt to force them to resign.

Defendants took away almost all of Kelley, Bryant, and Drake's job responsibilities

and authority. Defendants demoted Kelley explicitly and constructively discharged

her. Defendants dead-ended Bryant’s and Drake's careers. Defendants subjected

Kelley, Bryant, and Drake to humiliation by treating them markedly different from

other similarly situated African-American employees. Defendants did all this only

because Kelley, Bryant, and Drake are white.

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Defendants’ discriminatory scheme and its application to Kelly, Bryant and

Drake came to light because of one person, Plaintiff Herbert Lowe ("Lowe").

Because Lowe is an African-American and was a friend of Jones, Defendants

believed that Lowe would aide them in their discrimination. Accordingly,

Defendants revealed to Lowe their intentions, methods, and targets of

discrimination, including Kelly, Drake and Bryant. Defendants thought that Lowe

would be a "team player" in their discriminatory scheme. However, Lowe refused

to assist Defendants and ultimately revealed their discriminatory scheme. In

retaliation for his refusal to participate in their scheme, Defendants abolished

Lowe's job, terminating him from DeKalb County.

B. The Parties

1.

Plaintiffs Bryant and Drake are current management employees in the

DeKalb County Parks and Recreation Department ("Parks Department"). Bryant is

the Deputy Director of Revenue Management and Support Services. Affidavit of

Michael Bryant (“Bryant Aff.”) at ¶ 3, attached as Exhibit "A".1 Defendant Drake

serves as the Assistant Director of the Parks Department. Affidavit of John Drake

(“Drake Aff.”) at ¶ 3, attached as Exhibit "B". Defendants discriminated against

1 All originals of the Affidavits have been previously filed with the Court,

except for the Affidavit of Malik Douglas, which has been filed contemporaneously herewith.

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Bryant and Drake solely because Bryant and Drake are white. Affidavit of Herbert

Lowe (“Lowe Aff.”) at ¶ 10-14, attached as Exhibit "C".

2.

Plaintiff Kelley is the former Director of the Parks Department who was

constructively discharged from that position by Defendants in November 2002

solely because she is white. Affidavit of Becky Kelley (“Kelley Aff.”) at ¶¶ 5, 7,

attached as Exhibit "D".

3.

Plaintiff Lowe, an African-American, is the former Deputy Director of

Strategic Management and Development who was terminated from his position in

October 2002 in retaliation for his refusal to participate in Defendants' scheme to

discriminate against Plaintiffs. See Exhibit “C” at ¶¶ 4-5, 10-14.

4.

Defendant Jones, an African-American, is the Chief Executive Officer

("CEO") of DeKalb County, Georgia. Defendants' Statement of Undisputed

Material Facts at ¶ 1. Jones has ultimate authority over the daily operations and

employees of DeKalb County. See Morris Williams dep. p. 41-42, excerpts of

which are attached hereto as “E”; Richard Stogner dep. at p. 5, excerpts of which

are attached hereto as Exhibit “F”. Jones has the ultimate authority to hire DeKalb

County Department Directors. See Vernon Jones dep. at p. 26, excerpts of which

are attached hereto as Exhibit “G”.

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5.

Defendant Richard Stogner ("Stogner"), a Caucasian, is Jones's at-will

Executive Assistant. Exhibit “F” at pp. 5-6. All DeKalb County Department heads

report to Jones through Stogner. See id. at p. 11

6.

Defendant Williams, an African-American, is an Assistant County

Administrator. He reports directly to Stogner. Williams dep. p. 19. Williams was

hired to be Assistant County Administrator by Stogner and Jones. See id. at pp. 13,

18. Williams has direct supervisory authority over the Parks Department. See id. at

p. 21; Defendants' Statement of Undisputed Material Facts at ¶ 4.

7.

Defendant Stone, an African-American, is the Director of the DeKalb

County Human Resources Department. See Stone dep. p. 5, excerpts of which are

attached hereto as Exhibit “H”. Stone was hired by Jones and Stogner in June

2001. See id. pp. 15-19.

8.

Defendant Drew, an African-American, is the current Parks Department

Director. Marilyn Drew dep. pp. 28-29, excerpts of which are attached hereto as

Exhibit “I”. Drew was hired as the Parks Department Deputy Director of

Recreation Services on April 16, 2001. See Drew Personnel Action Form, attached

as Exhibit 1. Jones demoted Kelley in February 2002, replacing her with Drew as

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the Parks Department Acting Director. See Executive Order 1.5, attached as

Exhibit 2; Exhibit “D” at ¶¶ 7, 15-16. Shortly thereafter, Jones made Drew

permanent Parks Department Director. Exhibit “I” at p. 89; Exhibit “D” at ¶¶ 15-

16.

C. From January 2001 Through The Present Defendants Have Participated In A Scheme To Eliminate White Employees From DeKalb County In General And In The Parks Department In Particular

9.

As set forth in detail below, from January 2001 when Jones took office until

the present, Defendants participated in a scheme to (a) intentionally discriminate

against white managers in the Parks Department, (b) eliminate white managers

from the Parks Department on pretextual grounds, and (c) replace these white

managers with African-Americans.

1. Plan To Eliminate White Employees Began In January 2001 When Jones Took Office

10.

Three months after he took office, Jones publicly stated that while "...he did

not come into office to throw out white people" he would make employees within

DeKalb "look like DeKalb County," meaning that Jones would increase the

number of African-American employees in DeKalb County. See Becky Kelley

dep. at pp. 49-52, excerpts of which are attached hereto as Exhibit “J”; John Drake

dep. at pp. 348-49, excerpts of which are attached hereto as Exhibit “K”; See Diary

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kept by Ms. Kelley, attached as Exhibit 3; see also Clark Dep. at p. 55, excerpts of

which are attached hereto as Exhibit “L” (similar comments at different time);

Bryant dep. at p. 29 (same), excerpts of which are attached hereto as Exhibit “M”.2

11.

Jones also publicly stated that he wanted African-American employees in

DeKalb County to be given preferential employment treatment. Exhibit “K” at pp.

256-57.

12.

Jones's directives regarding racial hiring and preferential treatment were not

only oral, they were memorialized in a "Management Accountabilities"

memorandum that Drew distributed on at least two (2) occasions. Exhibit “M” at p.

17; Exhibit “I” at p. 9; Exhibit “K” at p. 256; Exhibit “L” at p. 49; Drew

"Management Accountabilities" Memorandum, attached as Exhibit 5.

13.

Drew admitted on several occasions that Jones had in fact demanded, and

Defendants had implemented, his racially motivated employment directives in

DeKalb County. See Exhibit “M” pp. 61, 66, 476 (Drew ordered Bryant to hire an

African-American for a position in the Parks Department because the applicant

2 When Jones was an executive at BellSouth prior to his 2001 election as

CEO, Jones prepared a memorandum demanding that BellSouth's management team reflect the racial make-up of BellSouth’s customer base. See Exhibit “G” at p. 75; Jones’s email to BellSouth management, attached as Exhibit 4.

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was African-American); id. at p. 154 (Drew refused recommendation of hiring

committee, including three African-Americans, to hire white female sports

coordinate and hired African-American); id. at pp. 333, 341 (during meeting with

Williams, Williams told Bryant that Parks Department was only to hire a minority

contractor for golf course projects); Exhibit “K” at pp. 272-73.

14.

As set forth below, Defendants implemented Jones's county wide plan to

replace white managers in the Parks Department and attempted to recruit Lowe to

participate in their scheme.

2. Defendants Admitted To Lowe That They Were Attempting To Force Kelley, Bryant, And Drake From Their Positions In The Parks Department Solely Because Those Plaintiffs Are White And Defendants Recruited Lowe To Participate In This Scheme

15.

Prior to Lowe's termination from DeKalb County, Lowe and Jones were

friends and had known each other for twelve years. Exhibit “C” at ¶¶ 6, 16. After

numerous recruiting efforts, Jones offered Lowe a position as the Parks

Department's Deputy Director of Strategic Management and Development in 2002.

id. at ¶¶ 6-7.

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16.

Given their relationship, Jones hired Lowe because Jones believed that Lowe

would assist him and the other Defendants in forcing white managers from the

Parks Department. See id. at ¶ 10. Immediately after Lowe was hired, Stone told

Lowe that no "white person" would have been considered for Lowe's position and

that "white folks" were generally ineligible for numerous jobs in DeKalb County.

See Herbert Lowe dep. at pp. 127, 135, attached hereto as Exhib it “N”.

17.

Upon his arrival at the Parks Department, Drew told Lowe that Jones and

Stone planned to remove as many white employees as possible from DeKalb

County employment and to replace these employees with African-Americans.

Exhibit “N” at pp. 139-40, 380-81; (Jones told Lowe directly that he intended to

establish a "darker administration" in "the new DeKalb County"); Exhibit “C” at ¶

10.

18.

Jones, Stone, and Drew each told Lowe that while they would not directly

terminate white employees, they would eliminate white employees through indirect

means such as: (a) reorganizations; (b) intimidation; (c) double-filling an

employee's position; (c) creating a negative work environment; and (d) writing-up

the employee with false allegations so that the white employee would resign.

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Exhibit “C” at ¶¶ 8, 10-13; Exhibit “N” pp. 338-339, 353-54, 470-471, 476-77,

514-515.

19.

Defendants were specifically targeting Bryant, Drake, and Kelley. Exhibit

“N” at pp. 139-140, 154-155, 158, 353-354; Exhibit “C” at ¶¶ 8, 10-13.

20.

Drew stated that she would eventually eliminate white employees in the

Parks Department by writing them up and placing derogatory comments in white

employees' files. Exhibit “C” at p. 158.

21.

Jones, Stone, Drew, and Williams repeatedly told Lowe that they expected

him to be a "team player" and that they expected him to assist in their efforts to

eliminate white managers in the Parks Department. Exhibit “C” at ¶¶ 8, 10-13, 18.

22.

Lowe repeatedly refused to be part of Defendants' plan. Exhibit “C” at ¶ 14;

Plaintiff Lowe's Responses to Defendant Stogner's First Interrogatories at No. 6,

attached hereto as Exhibit 6.

23.

Drew told Lowe not to communicate with any white employees in the Parks

Department, including Bryant, Drake, Kelley, David Clark ("Clark"), and the

"white women" in the recreation division, because she did not trust them. Exhibit

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“N” at p. 221; Exhibit “C” at ¶ 12. Drew instructed Lowe to dig up dirt on these

white employees, including Bryant, Drake, and Kelley. Exhibit “C” at ¶¶ 8, 10.

24.

In addition to ordering Lowe to "dig up dirt" on Bryant, Drake, and Kelley,

Jones, Stone, Williams, and Drew ordered Lowe to make sure that no white Parks

Department employees, including Bryant and Drake, received any public

acknowledgement or accolades. Exhibit “N” at p. 224; Exhibit “C” at ¶ 13.

25.

Lowe refused to participate in Defendants' discriminatory plans throughout

his tenure at DeKalb County. Exhibit “C” at ¶ 14. However, he did not reveal

Defendants' discriminatory plans and all of the Defendants involved to Bryant,

Drake, and Kelley until Spring 2004. Exhibit “C” at ¶¶ 22-23.

3. The Taped Conversation Between Defendants Stone and Williams Confirms that Jones Had A Scheme To Discriminate Against White Employees

26.

Sometime on or around March 25, 2003, Defendants Stone and Williams

had a conversation regarding hiring practices within the DeKalb County Fire

Department which was recorded. Affidavit of Michael Amato (“Amato Aff.”) at ¶

19, attached hereto as Exhibit “O”. Stone and Williams identified their voices on

the tape. See Second Deposition of Joe Stone at p. 11, attached hereto as Exhibit

“Y”; Second Deposition of Morris Williams at p. 6, attached hereto as Exhibit “Z”.

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27.

On this tape, Stone and Williams discussed the promotion list for battalion

chief which was submitted by the Chief of the DeKalb County Fire Department,

David Foster (“Foster”). Exhibit “Y” at p. 48-49. Foster is the only person in the

Fire Department with the authority to make promotions. id. at p. 52-53.

28.

Stone was upset because the promotion list submitted by Foster was

different from the promotion list which he discussed with Stone. See Second

Deposition of Richard Stogner at p. 34, attached hereto as Exhibit “AA”. Stone

stated that Foster “tried to promote to battalion chief but he wants to pick ‘em from

a population that is snow white already. Now he got to cut that shit out with

Vernon.” Exhibit “Y” at p. 48.

29.

Stone continued to state that Jones “told David Foster not to; we don’t

promote anybody until you figure out how you can fix the problem.” id. at p. 68.

30.

Stone stated that Foster “should never have presented it especially when he’s

got the date on here man let me tell you the date of 3/24. Vernon Jones told him

Friday... that is insubordination.” id. at p. 94-95.

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31.

Stone stated: “here’s the thing about it Morris ... sitting there my damn thing

is to say, ‘look Rich, [Stogner] you want to cover Vernon with this because Vernon

is going to kill ‘em.” id. at p. 111-112.

32.

Williams then stated: “look Richard... [i]f I promote anybody black it stinks,

and he is not going to give any of the damn job to these boys, which means that I

tell you that you are qualified, even though I did, if I pick anybody else it is going

to look like.” Exhibit “Z” at p. 49-50; Exhibit “Y” at p. 114. At which time, Stone

interrupted Williams and stated: “woa, woa he filled this motherfucker out last

week. Vernon told him but David said I tried to find some. Vernon said I got

niggers from town who are from College Park and different fire stations who, who

are battalion chiefs.” Exhibit “Y” at p. 116-117.

33.

Stone stated: “it would take six or eight months before they would know the

rules. Vernon said David I am not buying that.” id. at p. 129.

34.

Stone stated: Vernon said, “let me tell you something David. You said that

you can’t do it. I ain’t buying that number 1. Number two Patton said he had 72

hours to cross some kind of river. Some of the guys said we can’t do it. You know

what Patton said. You know that I have son of a bitches like you lined up wanting

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your jobs to get cross that god damn river. Well that’s what I am telling you. Now

tell me you can’t do it.” id. at p. 132-133.

35.

The Court noted in its March 10, 2006 Order that, upon close reviewing of

the tape, Williams uses the phrase “racial discrimination” during this conversation.

See March 10, 2006 Order.

36.

Around the time the employments decisions discussed by Stone and

Williams were made, there were concerns about the diversity of the applicants in

the Fire Department. See Johnson dep. at p. 49, excerpts of which are attached

hereto as Exhibit “P”. In response to this concern, the position of lieutenant was

abolished, which “inserted into the captain’s pool a large number of African-

American applicants.” id.

37.

Shortly before the submission of the promotion list for battalion chief, the

concerned black clergy, a group of ministers in Atlanta expressed concern about

the diversity of the fire department. Exhibit “Y” at p. 55; Exhibit “Z” at p. 25;

Exhibit “AA” at p. 47.

4. Others In DeKalb County Confirmed That Jones Had A Scheme To Discriminate Against White Employees

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38.

Five former-African-American DeKalb County Employees, former-DeKalb

County Police Chief Eddie Moody ("Moody"), former-DeKalb County Human

Resources Department employee Walter Murray ("Murray"), former-DeKalb

County Information Systems Department Deputy Director of Operations, Russell

Julian ("Julian"), former DeKalb County Police Officer Malik Douglas, and former

DeKalb County Assistant Police Chief Ray Flemister corroborate Lowe’s

contention that Defendants made race-based employment decisions in DeKalb

County. See Affidavit of Eddie Moody, attached hereto as Exhibit "Q"; Affidavit

of Walter Murray, attached hereto as Exhibit "R"; Affidavit of Russell Julian

attached hereto as Exhibit "S"; Affidavit of Malik Douglas attached hereto as

Exhibit “T”; and DVD of News Report provided by Channel 2 WSBTV, which

identifies DeKalb County Assistant Police Chief Ray Flemister as the speaker,

attached hereto as Exhibit “V”.

a. Chief Moody

39.

Moody joined the DeKalb County Police Department in 1974. Exhibit “Q”

at ¶ 3-4.

40.

Jones appointed Moody DeKalb County's Chief of Police in January 2001.

id.

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41.

As Chief of Police, Moody appointed two Caucasians, Ron Dykes ("Dykes")

and Margaret Schuelke ("Schuelke") as Assistant Chiefs. id. at ¶ 6.

42.

Moody made these appointments because Dykes and Schuelke were

excellent, experienced, dedicated, and qualified employees. id. ¶ 6.

43.

Jones was upset that Moody appointed two white Assistant Chiefs rather

than appointing African-Americans to those positions. id. ¶ 7.

44.

Upon Moody's resignation from the Police Department, Dykes resigned and

Schuelke was terminated by the new police chief that Jones had appointed.

b. Murray

45.

Murray was an 18 1/2 year employee of DeKalb County and he retired as

Senior Personnel Officer for DeKalb County's Human Resource Department.

Exhibit “R” at ¶ 2.

46.

From 2001 until October 2002, Murray worked with Stone. id. at ¶ 5.

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47.

During this time, Murray heard Stone refer to a white employee, Rick

Daniel, as a "cracker." id. at ¶ 6.

48.

On another occasion, Jones berated Murray "for processing the promotion of

Bill Powell, a white employee in the development division of the Department of

Public Works." id. at ¶ 15.

49.

Murray understood that the "general perception" of employees in DeKalb

County was that once Jones became CEO "it was his policy to hire African-

American employees." id. at ¶ 18.

c. Julian

50.

Julian was hired as DeKalb County Information Systems Deputy Director of

Operations in November, 2004. Exhibit “S” at ¶ 5.

51.

In January 2005 Julian promoted Debbie Williamson ("Williamson"), a

Caucasian, to the position of Project Leader III in the Information Systems

Department. id. at ¶ 7.

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52.

Shortly after Williamson's promotion, Julian was summoned to Stogner's

office. Stone was present in the office as well. id. at ¶ 8.

53.

Stogner told Julian that he had done a good job, but that he had "...obviously

rubbed someone the wrong way." id. at ¶ 9.

54.

Stogner also stated that he was, "...determined to get an African-American in

a management position in the IS Department." id. at ¶ 10.

55.

Julian asked Stogner, "You mean I'm an affirmative action hire?" id. at ¶ 11.

56.

Stogner replied, "You can take it that way if you like." id. at ¶ 12.

57.

Julian then asked Stogner if any of this had to do with Julian's promotion of

Ms. Williamson. id. at ¶ 13.

58.

Stogner reiterated, "It is obvious you have rubbed someone the wrong way."

id. at ¶ 14.

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59.

Julian left employment with DeKalb County after the meeting with Stogner.

id. at ¶ 15.

d. Douglas

60.

Douglas was employed with as a police officer with the DeKalb County

Police Department from December of 1997 to February 24, 2004. Exhibit “T” at ¶

2.

61.

On July 14, 2005, Douglas had a conversation with the Chief of Police,

Louis Graham, in his office at police headquarters. id. at ¶ 3. The purpose of the

conversation was to discuss rumors regarding a “ticket slow-down.” See transcript

of conversation between Malik Douglas and DeKalb County Police Chief Lois

Graham at p. 7, attached hereto as Exhibit “U”.

62.

During the conversation, Douglas tells Graham that he is an organizer of the

union and that its primary purpose is to address officer pay. id. Graham tells

Douglas that he is being used by the white officers and that the pay issue is pretext

to create support for a union so that the white officers can address other concerns.

id at p. 41-42.

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63.

Specifically, Graham believes that white officers are not happy with his

hiring decisions. id. at p. 57. He notes that prior to the time Jones appointed him as

Police Chief, there were no African American Assistant Chiefs. id. He then notes

that there are now five (5) African American Assistant Chiefs. id.

64.

Former Police Chief Moody appointed Ron Dykes and Margaret Schuelke to

Assistant Chief before he resigned. See Moody Aff. at ¶ 6. Moody testified that

Jones was displeased with these promotions because Dykes and Schuelke are

Caucasian. id. at ¶ 7. Jones wanted Moody to promote two African Americans to

Assistant Chief. id.

65.

After Graham took over as Police Chief, Dykes resigned and Schuelke was

fired. id. at ¶ 8.

e. Flemister

66.

On a tape recorded conversation, DeKalb County Assistant Police Chief

Flemister states “you ever wonder why I ain’t promoted them nine on the list now

and I got nine positions. You ever thought about that?” Exhibit “V”.

67.

Flemister continues: “Cause seven of them are white.” id.

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68.

Flemister explains: “Ya’ll don’t understand, but the white folks understand,

shit done change. That’s the bottom. That’s what all this union is about.” id.

69.

Flemister continues: “We got three more years and God as my witness, 10

minutes before you got here, you know who I was talking on the phone with?

Vernon Jones. And guess who the only m-f is, running this black-ass place?

Vernon Jones.” id.

5. The PeopleSoft Reports Produced by Defendants Confirm that Jones Had A Scheme To Discriminate Against White Employees

70.

In August 2004, Plaintiffs filed an Open Records Request with DeKalb

County, seeking the racial composition of DeKalb County managerial employees.

See Morgan Aff. at ¶ 2, attached hereto as Exhibit “W” . DeKalb County stated

that the documents did not exist. id.

71.

On November 10, 2004, Plaintiffs requested the same information from

Defendants pursuant to a Request for Production. id. at ¶ 4. Defendants refused to

produce the documents. id at ¶ 5.

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72.

On March 10, 2006, this Court issued an order allowing Plaintiffs to engage

in written discovery regarding County-wide demographics for the years 2000 and

beyond. See March 10, 2006 Order. The PeopleSoft Reports attached hereto were

produced in response to this discovery.

73.

In January, 2001, there were 131 total managerial employees at pay grade 33

and above. See January 2001 PeopleSoft Reports, attached hereto as Exhibit 7.

74.

In January, 2001, Jones had authority to hire 98 of these managerial

employees. Compare Exhibit 7 with Defendant Jones’s Responses to Plaintiffs’

First Requests for Admissions to Defendant Jones attached hereto as Exhibit 8.3

75.

Of the 98 employees Jones controlled; 61 were Caucasian, 33 were African-

American, 1 was Hispanic, and 3 were Asian. See Exhibit 7.

3 Jones does not have authority to hire the following positions: Solicitor

Juvenile Court, Juvenile Court Judges, Associate Juvenile Court Judges, Probate Judges, Chief Magistrate Judge, Associate Magistrate Judges, part time Associate Magistrate Judges, Tax Commissioner, Deputy Tax Commissioner, Assistant Tax Commissioner, District Attorney, Director Child Advocate Center, Deputy Director Medical Examiner. See Exhibit 8.

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76.

In August, 2005, after four and a half years of the Jones administration, there

were 159 total managerial employees at pay grade 33 and above. See August 2005

PeopleSoft Reports, attached hereto as Exhibit 9.

77.

In August, 2005, Jones had authority to hire 122 of these managerial

employees. Compare Exhibit 9 with Exhibit 8. Of the 122 managerial employees

Jones controlled; 58 were Caucasian, 60 were African-American, 2 were Hispanic,

and 2 were Asian. See Exhibit 9.

78.

From 2001 to August 2005, 24 new management positions were created over

which Jones had ultimate hiring authority and there were 27 additional African-

American managers occupying positions controlled by Jones. Compare Exhibit 7

with Exhibit 9. At the same time, Hispanics experienced a net gain of only 1

management position, Asians experienced a net loss of 1 management position,

and Caucasians experienced a net loss of 3 management positions. id.

79.

The number of African American managers at pay scale 33 and above has

increased by 82% under Jones administration, while the number of white managers

essentially remained unchanged. id.

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D. Defendants Retaliated Against Plaintiff Lowe For Refusing To Participate In Their Scheme To Discriminate

1. Lowe's Office Moved

80.

On or around May or June of 2003, after Lowe repeatedly refused to

participate in Defendants' discriminatory scheme, Lowe's office was moved from

the second floor of DeKalb County's offices to the sixth floor of these offices,

which housed Jones' executive suite. Exhibit “I” at p. 198; Exhibit “F” at p. 100

(Stogner made decision to move Lowe); Exhibit “G” at p. 17 (same); Exhibit “C”

at ¶ 14.

81.

While Lowe's office moved, he continued to work in for Parks Department

and he assisted Jones with "special projects. Exhibit “C” at ¶ 15; John Horn dep. at

p. 12, attached hereto as Exhibit “X”; David Clark dep. at p. 115, attached hereto

as Exhibit “L”.

82.

Both before and after Lowe's office was moved, Jones told Lowe that he was

not being a "team player," meaning that Lowe was not participating in the scheme

to discriminate against white employees. Exhibit “C” at ¶ 18.

2. Lowe's Transfer Was Part Of An Artifice To Eliminate Lowe's Job

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83.

Immediately prior to Lowe's transfer, Drew interviewed and hired Marvin

Billups ("Billups") as Deputy Director of Strategic Management and Development

the same job Lowe held. Exhibit “I” at pp. 198, 205, 207, 214; Marvin Billups

Personnel Action Form, showing his hiring to double-fill Mr. Lowe's position,

attached as Exhibit 10. Billups is African-American. Exhibit “C”. at ¶ 15. At the

time of his hire, Billups's job was "time limited" until December 31, 2003. Exhibit

“I” at pp. 214-215.

84.

As set forth below, the evidence shows that Defendants "time limited"

Billups' job until December 31, 2003, because: (a) they knew they could avoid

DeKalb County's competitive hiring process by hiring a "time limited" employee,

(Exhibit “I” at p. 214); (b) they knew they were going to eliminate Lowe's position

on December 31, 2003; (Jones's recommendation to the Board of Commissioners

to abolish Mr. Lowe's position dated December 3, 2003, attached hereto as Exhibit

11); and, (c) they knew that they could move Billups into a position doing Lowe's

job once Lowe's "title" was eliminated. Exhibit “I” at p. 223.

85.

Immediately prior December 31, 2003, Billups was moved into a "vacant"

position in the Parks Department. Exhibit “I” at pp. 222-224; Exhibit 10.

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86.

In this "vacant" position, Billups performed exactly the same job he was

doing prior to his transfer, namely Lowe's job. Exhibit “I” at p. 224.

87.

On December 3, 2003, Jones recommended that the position of Deputy

Director of Strategic Management and Development be abolished. Exhibit 11.

Board of Commissioners voted to abolish Mr. Lowe's position on January 27,

2004. See Minutes of Board of Commissioner's Meeting to approve recommended

budget, attached hereto as Exhibit 13.

88.

Because Billups was moved to a "vacant" position, the only person in that

job was Lowe. Exhibit “I” at p. 224.

89.

Without any competitive bidding, notices, or interviews, Billups was hired

on a time limited basis to do Lowe's job, which had been abolished in name only

on January 27, 2004. Exhibit “H” p. 82-83; Exhibit “I” p. 224.

90.

Jones signed the document that abolished Lowe's job and Stogner made the

decision to abolish this job after discussing the issue with Drew. Exhibit “F” at p.

111; Exhibit “G” at p. 62, Ex. 3; but see Exhibit “I” pp. 225-227 (Drew claims that

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she had included Lowe's position in her budget for the next fiscal year and that she

never discussed the issue with Stogner).

91.

While Defendants claim that the "abolishment" of Lowe's position was part

of a budget action by the DeKalb County Board of Commissioners, they ignore the

facts that: (a) Stogner admits he made the decision to abolish Lowe's Job; (b) Jones

signed the document abolishing his job; (c) although the Parks Department has

over 600 full and part-time employees, the only job "abolished" as part of the 2004

budget was Lowe's; (d) the actual job performed by Lowe in the Parks Department

continued after its "abolishment" and was performed by Billups; (e) no other Parks

Department senior-level management position had ever before been so-abolished;

(f) the "abolishment" of Lowe's job allegedly occurred without input from the

Parks Department Director; and (g) the "abolishment" of Lowe's job is consistent

with Defendants' scheme to terminate employees without actually "firing" them.

Exhibit “C” at ¶¶ 10-11; Exhibit “B” at ¶ 13; Exhibit “F” at p. 111; Exhibit “X” at

96; Exhibit “I” at 229.

92.

Lowe appealed his termination, but did not attend the hearing because Stone

informed him that there was "no use" in appealing the termination. Exhibit “C” at ¶

20.

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93.

Further, per DeKalb County's Rules and Regulations, the sole authority of

the hearing office was to determine "whether the dismissal was in fact due to lack

of work, lack of funds, lack of appropriation of funds, abolishment of the position,

or for other material changes in the duties of the position or the organization of the

Department." Merit Hearing Officer's Decision on Mr. Lowe's Termination,

attached hereto as Exhibit 14. The hearing office concluded that Lowe's position

had not been funded, but made no determination regarding the reasons that the

position was unfunded and abolished. id. The hearing officer had no authority to

subpoena witnesses to that hearing. See Hearing Officer and Merit Procedures for

DeKalb County, attached hereto as Exhibit 56.

94.

After his job was "abolished" Lowe was offered another lower paying, less

significant job in the Parks Department that he refused. Exhibit “N” at p. 183;

Memorandum to Mr. Stogner from Mr. Lowe memorializing the job offer for Parks

Maintenance Coordinator at a salary of $53,916, attached as Exhibit 15; Lowe

Personnel Action form abolishing his job, showing a salary of $78,672 per year,

attached as Exhibit 16.

95.

Defendants' retaliation against Lowe is similar to their retaliation against

other DeKalb County employees who were not "team players" and who objected to

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participating in illegal conduct ordered by Jones. Exhibit “Q” at ¶¶ 9-19 (when

Moody refused Jones's edict to lie to a DeKalb County grand jury and "fall on his

sword" for Jones regarding the same, Jones sent Stogner and the Reverend Wiley

Jackson to demand Moody's resignation, which he gave).

E. Defendants Discriminated Against Plaintiffs Bryant, Drake, And Kelley Based Solely On Their Race

1. Defendants Discriminated Against Kelley And Their Conduct Constructively Discharged Her

96.

Even before Jones hired Lowe, Jones told Lowe that Kelley was "history."

Exhibit “N” at p. 235-236.

97.

From her 1976 college graduation until she was constructively discharged in

November 2002, Kelley devoted her entire twenty-seven (27) year professional

career to the Parks Department. Exhibit “J”. pp. 10-11; Exhibit “D” at ¶¶ 3-5.

98.

In 1992, Kelley became the Parks Department Director. Exhibit “J” at 10,

11, 136; Exhibit “D” at ¶ 4.

99.

Kelley first encountered Jones' hostility toward her only four (4) days after

Jones assumed office on January 1, 2001. id. at ¶ 8.

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100.

On January 5, 2001, Jones angrily confronted Kelley allegedly regarding the

lack of support the Board of Commissioners had given a "Parks and Greenspace"

ballot initiative. id.

101.

Kelley was surprised by the confrontation and discussed it with Stogner,

who did nothing. id.4

102.

Twenty days later in a private meeting in Jones's office, Jones, yelling and

screaming, again angrily confronted Kelley in a physically threatening manner. id.

at ¶ 9.

103.

At this meeting, Jones ordered Kelley to never again: (a) speak with the

press as Parks Department Director; or (b) speak with any member of the DeKalb

County Board of Commissioners. Exhibit “J” at pp. 164-165, 180, 185.

104.

Prior to Jones' tirade, Kelley's job had required her to both speak with the

press and with the DeKalb County Board of Commissioners. id. at p. 166, 180,

185.

4 Stogner does not deny that any of the events set forth in the section actually occurred. See Stogner Dep. at 27, 29-31, 33, 95-96 (saying he "does not recall" but does not deny the events).

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105.

In April, 2001, Stogner told Kelley that her problems stemmed from the fact

that she "didn't understand the geopolitical issues of DeKalb County and that she

could not relate to powerful black men." id. at pp. 170-171; Exhibit “D” at ¶ 10.5

106.

Jones's animosity toward Kelley continued. Exhibit “D” at ¶ 14.

107.

While it was Kelley's responsibility as Parks Department Director to hire

Parks Department employees, Stogner, acting for Jones, ordered Williams, to

participate in all Parks Department employee interviews. Exhibit “E” at p. 32.

108.

In early 2001, Kelley and Williams interviewed candidates for the Parks

Department's Deputy Director of Recreation. id. at p. 36.

109.

The most qualified candidate for the open position was a Caucasian male.

Exhibit “D” at ¶ 12.

5 On April 17, 2001, DeKalb County Commissioner Lou Walker, an

African-American, stated that he "wasn't going to work with that little white woman [Kelley]." Exhibit “D” at ¶ 11. Kelley again informed Stogner, and Stogner responded that Kelley did not know how to relate to "powerful black men" Exhibit “J” at p. 72-73.

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110.

Williams informed Kelley that they could not recommend that candidate to

Jones because the candidate was white and Jones would not accept a white

candidate. id. at ¶ 12.

111.

Because the preferred candidate was unacceptable because of his race,

Kelley and Williams recommended an unemployed Drew to Jones. During this

introduction, Jones asked Kelley to leave his office so that he could spend some

time alone with Drew. Exhibit “I” at pp. 46, 48-49; Jones dep. p. 97.

112.

After this meeting, Stogner told Kelley to offer Drew the Deputy Director

position and to give Drew a higher salary than Bryant—even though Bryant had

three years tenure in the Parks Department, and even though Drew was hired at

Bryant's same "level." Exhibit “J” at p. 61.

113.

Stogner told Kelley that she needed to offer Drew a salary higher than

similarly situated white employees in order to "get in good with Morris

[Williams]." Exhibit “D” at ¶ 13.

114.

After Drew was hired, Jones and Williams excluded Kelley from important

discussions and decisions regarding the Parks Department, and instead had those

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discussions and made those decisions with Drew. Exhibit “I” at p. 70; Exhibit “E”

at pp. 60, 64; Exhibit “J” at pp. 110-111, 170.

115.

Kelley complained of this practice to Stogner. Exhibit “J” at pp. 110-111.

116.

In response, Stogner told Kelley that Jones and Williams were ignoring her

input as Parks Director in favor of Drew because Jones wanted to "showcase black

parks and black employees," and that Jones did not want a white person to

represent the Parks Department. Exhibit “J” at p. 167-168.

117.

In July 2001 Arabia Mountain Alliance6 Chairman, Kelley Jordan ("Jordan")

told Kelley that, "Jones and Commissioner Walker wanted Becky Kelley out of the

County." Exhibit “D” at ¶ 14.

118.

During this conversation, Jordan told Kelley that Jones and others were

going to keep her out of the loop regarding greenspace/bond issues and that Jones

and others were "building a file on her." See id.

6 According to its website, the Arabia Mountain Alliance is a group

dedicated to preserving the Arabia Mountain Heritage Area in DeKalb County, Rockdale County, and Henry County, Georgia.

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119.

On February 12, 2002, Jones signed an Executive Order that (a) transferred

Kelley from her ten (10) year position as Parks Department Director into a dead-

end job; and (b) promoted Drew to Parks Department Director. Exhibit 2; Exhibit

”G” at p. 90.

120.

As the February 12, 2002 Executive Order states, Kelley was

"administratively reassigned to the Chief Executive's Office." Exhibit 2.

121.

In that job, Kelley was "ordered to report to Executive Assistant [Stogner]

through Assistant County Administrator, Tina Arbes. Collectively the group will

be responsible for the coordination and implementation of the Governor's

Greenspace program in DeKalb County and the implementation of the 2001 Parks

and Greenspace General Obligation Bond issue." id.

122.

Accordingly, Kelley was demoted. On the face of the February 12, 2002

Executive Order: (a) she was not given a title; (b) she was placed in a "group" to

administer a program; and (c) she was ordered to report to Tina Arbes when she

previously reported directly to Stogner and Jones. Exhibit 2; Exhibit “D” at ¶ 16.

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123.

Contrary to Defendants' contentions, and as the February 12, 2002 Executive

Order shows, Kelley was not placed in charge of any bond program. In fact, Pam

Holmes or Tina Arbes, not Kelley was in charge of the 2001 Parks and Greenspace

General Obligation Bond issue. Exhibit 2; Exhibit “J” at pp. 122-24, 150; Exhibit

“F” at p. 121.

124.

Stogner drafted the February 12, 2002 Order demoting Kelley and

promoting Drew after discussing the matter with Jones, Williams, and Stone.

Exhibit “F” at pp. 35, 37.

125.

No one, including Stogner, discussed Kelley's transfer from, and Drew's

promotion to, the Parks Department's top position with Kelley before that decision

was made. Exhibit “F” at p. 38.

126.

At the time she was transferred, Stogner and others had no "long range"

plans for Kelley. Exhibit “F” at p. 92.

127.

Kelley's transfer was both personally and professionally humiliating. Exhibit

“D” at ¶ 7.

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128.

As a result of the February 12, 2002 Order, "[Kelley] was taken from a

position of great statute and prominence and placed into a highly subordinate role

where [she] moved from personally managing a 19-20 million dollar budget to

having no financial oversight, from 300 full-time positions and 300 part-time

positions to have quasi-oversight over three people." Exhibit “J” at p. 121.

129.

The fact that Kelley had been shamed and demoted by the February 12, 2002

Order was recognized by others in DeKalb County. Exhibit “R” at ¶ 14.

130.

Even though Kelley tried to maintain a "positive perspective," she was

"extremely embarrassed" by the transfer. From February 12, 2002 forward, Kelley

was simply trying to "survive" and continue to find ways to contribute to DeKalb

County, which due to her demotion and lack of authority, she was unable to do.

Exhibit “J” at pp. 131-132; Exhibit “D” at ¶¶ 17, 21.

131.

Kelley's humiliation continued after Drew assumed the Parks Department

Directorship. At that time, Drew unsuccessfully attempted to move Kelley from

her former-Director's office into a small, windowless office that used to be used as

a storage area. Exhibit “J” at p. 217; Exhibit “R” at ¶ 14.

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132.

Even as Kelley attempted to work in her new position, Jones would not

allow Kelley to have any input on any bond issues—over which Defendants

erroneously claims Kelley was in charge. Exhibit “J” at p. 122-124.

133.

At the time of her resignation, Kelley had virtually no job duties or

responsibilities. In stark contrast to her past twenty-seven (27) year employment in

the Parks Department and her ten (10) year employment as Parks Department

Director, most of Kelley's job at the time of her resignation constituted "coloring

maps." Exhibit “D” at ¶ 17.

134.

In November 2002, Kelley's humiliation needed to end. She accordingly

resigned her "job" with DeKalb County and took a position as the Director of the

Parks at the State Department of Natural Resources. Exhibit “D” at ¶ 5; Exhibit “J”

pp. 134-136.

135.

Kelley's new position required her to accept an annual $15,493.00 decrease

in salary and to accept lesser health and medical insurance coverage. Exhibit “D”

at ¶ 7; Exhibit “J” p. 137. Further, because Kelley was forced to resign before her

DeKalb County retirement reached maximum benefits, Kelley will lose over

$1,800 in benefits per month that she would have received had she been able to

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maintain her employment in DeKalb County. Exhibit “D” at ¶¶ 6-7; Exhibit “J” at

p. 137.

136.

In sum, Kelley was constructively discharged from the Parks Department

and she accordingly resigned her position in November 2002. Her working

conditions were so intolerable and demeaning, that Kelley was forced to abandon

her twenty-seven (27) year Parks Department career only two and a half years (2.5)

before her full thirty (30) year DeKalb County retirement benefits vested. Absent

Defendants' conduct, Kelley had intended on continuing to work in DeKalb County

and continuing to serve the people of DeKalb County. Exhibit “J” at pp. 10-11,

136. While Kelley initially suspected that she was being discriminated against in

July 2001, the subject adverse employment actions had not occurred and she did

not know the nature and scheme of discrimination, and all its actors, until Lowe

revealed the scheme in Spring 2004. Exhibit “D” at ¶ 25.

2. Defendants Discriminated Against Bryant

137.

In 2000, Bryant was hired as the Deputy Director of Revenue Management

and Support at the Parks Department. Exhibit “A” at ¶ 3.

138.

On or around June 10, 2002, after the February 12, 2002 Order removed

Kelley as Parks Department Director and Drew took over that job, Bryant's daily

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responsibilities were drastically reduced by Drew. Exhibit “M” at p. 13; Drew

Memorandum of "Temporary Assignments" stripping Bryant of his deputy director

duties, attached as Exhibit 17.

139.

On or around August 5, 2002, Drew moved Bryant from the Parks

Department's primary office in Decatur, Georgia to an office in Tucker, Georgia.

Exhibit “I” at p. 234; Bryant e-mail to Drew confirming move to Tucker

Recreational Center, attached as Exhibit 18.

140.

Drew immediately began treating her white subordinates, including Bryant

and Drake differently from African-Americans. Exhib it “M” at pp. 143-144 (Drew

ordered white female to write a "memo of explanation" when she brought her

grandchild to the office during working hours not requiring an African-American

to do same).

141.

For instance:

(a) Drew began to isolate white Deputy Directors, like Bryant and Drake

from decision making, while she sought increased input from African-American

Deputy Directors. Exhibit “M” at p. 121; Exhibit “X” at p. 49; Exhibit “L” at p.

68.

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(b) Drew required white Deputy Directors, including Bryant and Drake,

to schedule appointments to speak with her, while African-American Deputy

Directors were permitted free access to Drew. Exhibit “M” at p. 121; Exhibit “X”

at p. 49.

(c) Drew only allowed African-American Deputy Directors, including

Dietrick Stanford ("Stanford"), Al Sheppard ("Sheppard"), and Marvin Billups

(“Billups”) to attend relevant conferences while she denied white employees,

including Bryant, Drake, Sue Grable ("Grable"), and Jane McMillan ("McMillan")

the opportunity to do the same. Exhibit “A” at ¶ 6-7; Exhibit “I” at pp. 139-140;

146, 149.

(d) Drew only recommended African-American employees for leadership

or other positions, while not doing the same for white employees. Exhibit “I” at p.

158.

(e) When Billups, an African-American, was hired by Drew and other

Defendants, Billups was paid more than other similarly situated white employees,

including Bryant. Exhibit “I” at p. 215-216; Exhibit “X” at p. 148.

(f) Not only did Billups receive a greater salary than other similarly

situated white employees, including Bryant, Billups was permitted other benefits,

including a car allowance that was denied to other similarly situated white

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employees, including Bryant. Exhibit “X” at p. 52. Bryant asked for such an

allowance in mid-July of 2004, but he has never received it. Exhibit “M” at pp.

327-328.

142.

Drew further directly discriminated against and harassed Bryant by: (a)

withholding Bryant's staffing requests for which DeKalb County had already

allocated positions and budgeted; (b) withholding staffing information and

computers from Bryant; (c) circumventing Bryant's managerial authority and

assigning Bryant's duties to his direct subordinates; (d) removing Bryant's authority

over the operations DeKalb County golf courses and giving that authority to

Stanford, an African-American; (e) not returning this authority to Bryant once

Stanford left the Parks Department and instead assigning the authority Felix

Lawson ("Lawson") an African-American; (f) refusing to allow Bryant to use

accumulated compensation time when he had neck surgery, when African-

American employees, including Lowe, Billups, Stanford and Drew were allowed to

do so; (g) refusing to allow Bryant to return to work after his surgery because he

had minor physical restrictions—including lifting heavy objects—even though

African-American employees, including Dwight Hunter ("Hunter") had been

permitted to return to work even with severe physical restrictions. Exhibit “M” at

pp. 99, 221, 231, 236, 246, 261, 268, 274, 276-278, 291; Exhibit “I” at pp. 189,

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239, 241, 245; Compare Mike Bryant's Leave Request seeking compensation time

for surgery dated February of 2002, which was disapproved by Ms. Drew, attached

hereto as Exhibit 19, to Drew's Leave Request seeking compensation time for

vacation dated May of 2002, approved by Mr. Williams, attached hereto as Exhibit

20.

143.

Drew also refused to ever prepare a performance evaluation for Bryant prior

to the filing of this litigation. Exhibit “M” at p. 320.

144.

As Drew knew, an employee, such as Bryant is ineligible for annual merit

salary increases without performance reviews. Exhibit “A” at ¶ 22; Exhibit “I” at p.

118.

145.

Because of Drew's actions, Bryant was ineligible, and did not receive, any

raises through the filing of the Complaint because of Drew refused to evaluate him.

Exhibit “A” at ¶ 16; Exhibit “I” p. 118.

146.

Drew only evaluated Bryant in Spring 2005—well after the filing of this

litigation. Exhibit “A” at ¶ 16.

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147.

While Drew refused to prepare performance reviews for Bryant, she did do

so for other African-American employees, including Billups. Exhibit “I” at pp.

118-119.

148.

Because Drew completed Billups' performance review, Billups received a

5% raise—which Bryant was denied. Exhibit “H” at p. 93; Exhibit “I” p. 118.

149.

Not only did Drew continually harass Bryant, she prepared termination

letters for Bryant, but Drew never actually submitted them. Exhibit “A” at ¶ 8.

150.

Rather, Drew intimidated Bryant by leaving the contents of the termination

letters open so that Bryant could see them, and worry about them. Exhibit “A” at ¶

8; Exhibit “I” at p. 256; Draft Suspension Letters on Mr. Bryant and notes

conjuring up issues upon which to write-up Mr. Bryant and Mr. Drake, attached as

Exhibit 21.

151.

Bryant accordingly lives under the apparent constant threat that Drew would

terminate him—without ever having filed a negative review of Bryant. Exhibit “A”

at ¶ 8.

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152.

Bryant filed a complaint of discrimination with Stone's DeKalb County

Human Resources Department and told Stone's investigator Curtis LeBlanc

("LeBlanc") to speak with Lowe because Lowe had told Bryant he was a "target"

of some sort. Exhibit “M” at p. 83; Bryant e-mail to Mr. LeBlanc dated October of

2003, attached as Exhibit 23; Bryant's EEO Complaint dated July 15, 2003,

attached as Exhibit 24. Mr. LeBlanc ignored Mr. Bryant's e-mail and never

responded.

153.

Despite his having filed a report with Stone, Bryant never received a

response to his complaint. Exhibit “M” at p. 410. In fact, Bryant did not learn that

any written report had been made regarding his complaint until December 2004—

four months after this litigation had been filed. See id. In 2003, Drew ordered

Bryant and others in the Park Department that they were not to attend merit

systems hearings regarding appeals of adverse employment actions by a Parks

Department employee if requested to do so by such an employee. Exhibit “A” at ¶

20.

154.

Stone admits that his department never contacted Bryant or sent Bryant a

report regarding its alleged "findings." Exhibit “H” at p. 36.

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155.

Not surprisingly, Stone self-servingly says that his department did not find

any evidence to substantiate Bryant's claims of discrimination. id. at pp. 32, 34.

156.

Stone admits that that since he became Director of the Human Resources

Department at the beginning of the Jones's administration in 2001, the Human

Resources Department has never found any complaint of discrimination filed by a

DeKalb County employee to be substantiated. id. at pp. 32, 34.

157.

In sum, Bryant faces continued harassment in his position at the Parks

Department, he is in a dead-end job where all of his responsibilities have been

taken away, he is practically ineligible for a promotions or raises, and he is treated

differently than other similarly situated African-American employees on a daily

basis.

3. Defendants Discriminated Against Drake

158.

Drake was first employed in DeKalb County in 1975, and he was first

employed in the Parks Department in 1976. Exhibit “K” at p. 140; Exhibit “B” at ¶

3.

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159.

In 1977, Drake was promoted within DeKalb County and became the

Assistant Director of the DeKalb County Purchasing and Contracting Department.

Exhibit “B” at ¶ 3.

160.

Drake remained at the Purchasing and Contracting Department until he was

transferred to the Parks Department by Jones's February 12, 2002 Executive Order.

Exhibit “K” at p. 140; Exhibit “B” at ¶ 3; Executive Order 1.5, attached as Exhibit

2.

161.

Stogner admits that neither Drake nor David Clark ("Clark"), who are both

white and who both have years of experience that qualified them to be Parks

Department Director, were ever considered for the position of Parks Department

Acting Director that Drew received. Exhibit “F” at p. 42.

162.

Drew was chosen as the Acting Parks Department Director even though (a)

Stogner never checked Drew's references; (b) Stonger never looked at Drew's

resume; (c) Stonger never interviewed Drew; (d) Drew had only been employed

with the DeKalb County for eight (8) months; (e) no one discussed the position

with Drew; (f) Drew did not know the expectations or duration of the Parks

Director's job. Drew was made permanent Director shortly thereafter even though

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(a) no one told her about the posting; (b) only three (3) applicants were submitted

and no one, other than Ms. Drew qualified because they did not meet the

requirement that they be a current employee of the Parks Department, and (c) the

paperwork establishing Ms. Drew as Director was filled-out on March 4, 2002,

four days before the closing date to receive applications. Exhibit “F” at p. 43;

Exhibit “I” at pp. 10-13, 73; Applicant Tracking Worksheet and PeopleSoft

Referral Sheet on Director Applicants, attached as Exhibit 24;7 Drew Personnel

Action Form dated March 4, 2002, attached as Exhibit 25; Advertisement for

Director Position (intra-departmental only, posted for two weeks ending March 8,

2002, as merit position) attached as Exhibit 26.

163.

Stogner told Drake that, Jones had made "too many political commitments"

to consider Drake for Parks Department Director. Exhibit “K” at pp. 57, 156.

164.

It was clear that Defendants knew that that Drew was not qualified to be

Parks Department Director and that Drake was qualified. Mr. Stogner

acknowledged that Mr. Drake was qualified, commenting that he thought Mr.

7 Compare PeopleSoft Applicant Referral Sheet for Recreation Center

Director, a position of less authority and stature. See Recreation Center Referral Sheet showing interview actions, attached as Exhibit 12.

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Drake should have been given the position back in 1992, when Mr. Drake applied

for the position, but it was awarded to Ms. Kelley. Exhibit “B” at ¶ 6.

165.

Stogner told Drake that he would be transferred to the Parks Department to

"prop up Drew." Exhibit “B” at 5; Exhibit “K” at pp. 156-157.

166.

While transferring Drake to "prop up" Drew, Defendants ensured that Drake

would not be eligible for the Parks Department Director position once it became a

permanent position. Exhibit “B” at ¶ 6.

167.

In 2002, the permanent Parks Department Director position was advertised

as an "intra-departmental promotion." This meant that only current Parks

Department employees, like Drew, could apply. Exhibit “I” at p. 86; Exhibit 27.

168.

The advertisement for the Parks Director Position required applications to be

submitted only from February 25, 2002 until March 8, 2002. Exhibit 26.

169.

Drake's transfer to the Parks Department was "effective" on March 16, 2002,

which precluded him from applying for the position. Exhibit “B” at ¶ 8; Personnel

Action Form for John Drake effective March 16, 2002, attached as Exhibit 28.

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170.

Drake's status as Parks Department "Acting Assistant Director" as of

February 12, 2002, did not allow him to apply for the relevant position. Exhibit

“B” at ¶¶ 7-8.

171.

The requirements posted for the Parks Department Director position were

posted by Stone's Human Resources Department. Exhibit “F” at p. 73; Exhibit “H”

at p. 64-65 (saying if the response to the posting is not great that they extend the

posting period). There were only three (3) applicants for the Director position, yet

it was posted only two (2) weeks without extension. Exhibit 24; Exhibit 26.

172.

There appear to have been no other times during the Jones administration

that a DeKalb County Department Director position was limited to candidates

currently employed in a particular department. Exhibit “F” at pp. 75-76; Exhibit

“G” at p. 114.

173.

Further, contrary to Defendants' contentions, Drake was qualified to be

Parks Department Director. Exhibit 26 (stating combination of experience and

education can be considered, which Drake had; no masters' degree requirement);

Exhibit “K” at p. 131; Classification Specification (job description and

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requirements) for Assistant Director Position, minimum requirements are identical

to Director Position, attached as Exhibit 28.

174.

As mentioned, Drew was made the permanent Parks Department Director in

spite of all of the foregoing, and even though: (a) she was interviewed only by

Williams; (b) she may not have even reviewed her application or resume with

Williams; (c) no one else appears to have been interviewed for the position; and (d)

Drew was clearly not qualified for the position, as she had only been a deputy

director with DeKalb County for eight months prior to her promotion on February

12, 2002. Exhibit “I” at 74-77; Exhibit “F” at 67, 72, 80; Exhibit 1.

175.

Once Drew became permanent Parks Department Director, and once Drake's

transfer to the Parks Department was "official", Drake was "Assistant Director" in

name only. Exhibit “B” at ¶ 11. Over a period of time, Drew removed from Drake

all job responsibilities that are typically performed by an Assistant Director and

began a pattern of harassing Drake. Exhibit “K” at pp. 86, 181. Ms. Drew's

organizational chart reflects that Mr. Drake is organizationally on the same level as

his fellow deputy directors. See Parks and Recreation Organization Chart for

Management, attached as Exhibit 29.

176.

For instance:

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(a) While Drake's job description requires all Deputy Directors to report

directly to him, Drew told all Parks Department Deputy Directors not to report to

Drake and to instead report directly to Drew. Exhibit “K” at pp. 42, 51-52; Exhibit

“I” at p. 161, 207-208; Exhibit “L” at p. 69; Exhibit 28.

(b) Drew removed Drake as the Parks Department's representative to the

"bond program," which he had dealt with since 1986, and replaced him with an

African-American. Exhibit “K” at pp. 92-94.

(c) Drake was prohibited from participating in Deputy Director hiring

decisions, including those of Billups and Lowe. id. at p. 105.

(d) Drake was never permitted to participate in discussions regarding the

alleged reorganization of the Parks Department's Parks and Recreation Divisions.

id. at 108;

(e) Drew hired some persons that were supposed to report to Drake

without Drake's knowledge or input and refused to hire personnel that Drake

recommended. id. at pp. 110, 116.

(f) Drew prohibited Drake from speaking to the media and permitted only

Lowe, Drake's alleged subordinate, to do so. id. at p. 176.

(g) Drew told Lowe, Drake's alleged subordinate, to run the Parks

Department instead of Drake when Drew was out of the office. id. at p. 217.

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(h) Drew hired an African-American with convictions for drunk driving

and falsification of a paycheck over Drake's objections. id. at pp. 210-211, 273.

(i) In 2004, when Drake informed Drew that he would use sick leave for

a "sinus infection", Drew placed a memorandum in Drake's file stating that Drake

had left the office on an "unauthorized doctor's appointment" because instead of a

sinus infection, the doctor diagnosed Drake with "acute asthmatic bronchitis.

Exhibit “I” at pp. 179-186.

(j) Drew excluded Drake from discussions regarding DeKalb County's

golf course management and revenue even though that was admittedly Drake's

responsibility, and even though she allowed Detrick Stanford, an African-

American, to attend discussions regarding this with Williams. id. at p. 116.

177.

Further, Drew never provided Drake with a performance appraisal or work

plan even though she is required to do so. Exhibit “K” at pp. 304-305.

178.

Again, while Drew refused to provide Drake and Bryant with a performance

review and opportunity for a raise, she did so for African-Americans, including

Billups. Exhibit “I” at pp. 118-119, 124.

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179.

Drew incredibly claims to have recently found never submitted performance

plans and reviews of white Parks Department employees Drake, Bryant, and Clark

under her credenza. Exhibit “I” at pp. 125-127.

180.

Like Bryant, Drake faces continued harassment in his position at the Parks

Department, he is in a dead-end job where all of his responsibilities have been

taken away, he is practically ineligible for a promotions or raises, and he is treated

differently than other similarly situated African-American employees on a daily

basis.

II. PLAINTIFFS’ RESPONSE TO DEFENDANTS’ JOINT STATEMENT OF UNDISPUTED MATERIAL FACTS

1.

Plaintiffs do not dispute that Jones took office as the DeKalb County Chief

Executive Officer on January 1, 2001. Plaintiffs do not dispute that there were

rumors that Jones intended to remove Caucasian employees and replace them with

African-Americans. These rumors have since proven to be true as evidenced by

the testimony of Plaintiff Lowe, former Police Chief Eddie Moody, former DeKalb

County Human Resources Department employee Walter Murray, former DeKalb

County Information Systems Department Deputy Director of Operations Russell

Julian, former DeKalb County Police Officer Malik Douglas, former DeKalb

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County Assistant Police Chief Ray Fleminster, Defendants’ testimony, the

PeopleSoft Reports reflecting the racial composition of management level

positions in DeKalb County, as well as the treatment of Plaintiffs Kelley, Drake,

Bryant, and other white DeKalb County employees.

Plaintiffs do not dispute that Jones preaches a policy of “diversity.” Jones’

actual concept of “diversity,” however, equates to a “darker administration” and is

starkly reflected by the PeopleSoft Reports which Defendants claimed did not exist

and then fought so vigorously to avoid producing. Exhibits 7, 9.

When Jones took office in January, 2001, he had control over 98

management level employees; 61 were Caucasian, 33 were African-American, 1

was Hispanic, and 3 were Asian. Compare Exhibit 7 with Exhibit 8. In August,

2005, Jones had control over 122 management level employees; 58 were

Caucasian, 60 were African-American, 2 were Hispanic, and 2 were Asian.

Compare Exhibit 9 with Exhibit 8.

From 2000 to August, 2005, 24 new management positions were created and

27 additional African-Americans were installed as managers. id. At the same time,

Hispanics experienced a net gain of only 1 management position, Asians

experienced a net loss of 1 management position, and Caucasians experienced a net

loss of 2 management positions. id.

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2.

Plaintiffs do not dispute that Stogner was appointed by Jones to the position

of Executive Assistant, Office of the Chief Executive on January 1, 2001.

Plaintiffs do not dispute that Stogner is white.

3.

Plaintiffs do not dispute that Stone began his employment as the Director of

Human Resources on June 18, 2001 or that his responsibilities include managing

applicant processes, employee relations, training, disciplinary procedures, salary

administration, and job evaluations. Plaintiffs do not dispute that Mr. Stone is

African American.

4.

Plaintiffs do not dispute that Williams, an African-American, is an Assistant

County Administrator, who reports directly to Stogner. Plaintiffs do not dispute

that Mr. Williams has direct supervisory authority over the Parks Department.

5.

Plaintiffs do not dispute that Drew, an African-American, is the current

Parks Department Director. Drew was hired as the Parks Department Deputy

Director of Recreation Services on April 16, 2001 after Jones demoted Kelley in

February 2002. Exhibit 2; Exhibit “D” at ¶¶ 7, 15-16. Shortly thereafter, Jones

made Drew permanent Parks Department Director. Exhibit “I” at p. 89; Exhibit

“D” at ¶¶ 15-16.

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6.

Plaintiffs do not dispute that Defendants are currently employees of DeKalb

County and were so during the commission of the illicit and discriminatory

conduct described herein.

7.

Plaintiffs dispute that DeKalb County has a meaningful mechanism for

reporting and remedying harassment and discrimination. Ms. Kelley repeatedly

spoke with and complained to Stogner about the hostile work environment and

racial discrimination. Exhibit “D” at ¶ 25. She also met privately with Joe Stone in

July of 2001 to report what she was experiencing. See id. She complained that

CEO Jones and Defendant Williams, after Ms. Drew was hired, would bypass her

and go directly to Ms. Drew with issues involving her department. Exhibit “J” at

110-11. Nothing was ever done.

Nevertheless, when an investigation was undertaken, it was a mere farce.

DeKalb County did not take Mr. Bryant’s discrimination complaint seriously nor

did it fully investigate Mr. Bryant’s claims. DeKalb County failed to interview

Mr. Lowe whom Mr. Bryant listed as a potential witness. See Witness Summaries

on Bryant EEO Claim, attached as Exhibit 30. On October 1, 2003, Mr. Bryant

sent an e-mail stating that Plaintiff Herb Lowe had called him, saying he was

concerned that information he could provide would be used against him. Exhibit

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23. Mr. Bryant asked whether Mr. Lowe could be protected from possible

retaliation and asked other questions about the process that might help to assuage

Mr. Lowe’s fears of retaliation, to which he never received a response. id. Mr.

Lowe’s retaliation fears were substantiated, as he was terminated shortly thereafter.

See Stogner termination letter, attached as Exhibit 31.

In addition, Plaintiff Drake asked to see his statement before it was

submitted to EEO, but it was never shown to him despite being told that it would

be. Exhibit “K” at pp. 324-25. Moreover, it took DeKalb County at least nine (9)

months to interview only eight (8) people. Compare Exhibit 23 to Exhibit 30. Yet,

the DeKalb County report is sparse; it only includes a one paragraph synopsis for

each witness interview, is completely devoid of any signed or verified statements

and contains no dates that interviews took place. See id. Mr. Clark testified that

Mr. LeBlanc interviewed him a maximum of ten minutes regarding Mr. Bryant’s

claims. Exhibit “L” at p. 77.

If DeKalb County concluded that there was no factual basis for plaintiff

Bryant's complaint, it never communicated to Mr. Bryant that it had even

completed his investigation. Exhibit “M” at p. 410; Exhibit “H” at p. 36. Mr.

Bryant did not learn that Mr. LeBlanc’s report had even been completed until his

deposition in this case, which took place in December of 2004. Exhibit “M” at p.

410.

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Plaintiff Becky Kelley

8.

Plaintiff Becky Kelley does not dispute that she began her employment with

DeKalb County in 1976, that she was promoted to Director, Recreation, Parks &

Cultural Affairs (now the Parks and Recreation Department) in September 1992, or

that she was retained in this same position by the Jones administration. Plaintiff

Kelley does not dispute that she is white.

9.

Ms. Kelley does not dispute that in February 2000, DeKalb County

commissioned an outside consultant to conduct a study of the County's Parks and

Recreation Department (“Parks Department”) and to formulate a long-range

Comprehensive Strategic Plan ("CSP"). In fact, it was Ms. Kelley who requested

the funding for the CSP and recommended that an outside consultant be hired, as

she believed that credible outside expertise was needed to help address critical

challenges the Parks Department faced. Exhibit “D”. Moreover, the CSP report

was a follow-up to Parks Department’s Blue Ribbon Committee Report, which Ms.

Kelley assisted in putting together a few years earlier. See id. Ms. Kelley admits

that, in addition to an outside consultant, there was extensive participation by the

public, county employees and the administration in developing the CSP. Ms.

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Kelley denies that this was the only input into creating the CSP report, as Ms.

Kelley wrote much of the report herself. See id.

10.

Ms. Kelley does not dispute that the CSP report was issued in September

2000 or that the CSP is a ten-year conceptual planning guide for the management

and growth of DeKalb County's parks system and that the CSP report recognized

"the need to create a new approach to parks and recreation services in DeKalb ";

however, additional excerpts of the CSP set forth the reasons for and the desired

outcomes of the CSP more clearly:

[T]he Department has endeavored to provide quality recreation opportunities to DeKalb citizens, despite obstacles such as lack of funding, support and direction, as well as increasing pressure from population growth and development of the county’s land resources. The last decade has seen many of these pressures escalate, and initiatives and efforts to identify and rectify these problems have not progressed. Many of the solutions identified in the work conducted by the Blue Ribbon Committee have not been implemented. . . . .

From the very outside of the planning process, goal setting has been a critical component. At its most basic level, the entire planning process may be viewed as a goal-setting, consensus-building exercise, with the intent being to develop strategies for future actions, along with associated tactics that reflects the immediate and future needs of the community. These strategies will result in a fresh look at the delivery of core services, and will help define the areas where the Department should concentrate its efforts and resources. . . . .

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See DeKalb County Parks and Recreation Comprehensive Strategic Plan (“CSP”)

at SS05599, attached as Exhibit 32.

Ms. Kelley does not dispute that DeKalb County Board of Commissioners

acknowledged the importance of parks and recreation services in DeKalb County by

accepting the CSP.

11.

Ms. Kelley does not dispute that what follows are excerpts from the CSP

report. Ms. Kelley denies, however, that these excerpts are provided in their full

context.

According to the CSP:

Parks and recreation are important to the citizenry, but currently the system has a low profile in the community and lacks active dedicated fiscal and governmental support. The continuation of existing practices and conditions will prolong DeKalb County's parks and recreation's downward spiral; with persistently deteriorating, aging facilities and decreasing participation rates. As we move into a new century, a growing, aging and changing populace will demand different and up-to-date parks, facilities and programs. The DeKalb County Parks and Recreation Department has prepared this plan to provide the framework to meet this challenge. It is essential to adopt a new vision and a new way of doing business in DeKalb to realize the full potential of parks and recreation effectively meeting the needs of the citizens.

Exhibit 32.

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12.

Ms. Kelley does not dispute that what follows are excerpts from the CSP

report. Ms. Kelley denies, however, that these excerpts are provided in their full

context.

As relates to Park management, the CSP noted:

The Division needs a new organizational structure to ensure maximum staff productivity and accountability. Middle managers need to be more directly involved in planning and problem-solving.

Exhibit 32.

As related to staff at the time, the CSP found:

The lack of resources - funding, technology, equipment, staff-leads to burnout, attrition, and low morale . . . Department resources are spread thin. The Department is involved in many activities that do not relate to parks and recreation . . . The Department should seek to transfer responsibilities that do not directly relate to parks and the delivery of recreation services.

Exhibit 32.

Key weaknesses identified include low staff morale, limited resources, lack of trust of upper management, and lack of communication between management and between divisions . . . A big concern appears to be the lack of adequate staff to do the job that is required.

Exhibit 32.

13.

Plaintiff does not dispute that while she served as Director of the Parks

Department, Plaintiff Kelley applied for and interviewed with other employers

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during the year 2000 in Reston, Virginia and Boulder, Colorado. Ms. Kelley

also does not deny that she applied for a position in Charleston, South Carolina

in early 2001.

14.

Ms. Kelley disputes that in her position as Director of the Parks Department

that she reported to Executive Assistant Richard Stogner through Assistant County

Administrator Morris Williams. Mr. Stogner did not relinquish his direct

supervision of Ms. Kelley until February of 2002, after Executive Order 1.5 was

issued, reassigning Ms. Kelley to the Greenspace Program. See Stogner review of

Kelley, attached hereto as Exhibit 33; Exhibit 2.

15.

Ms. Kelley does not dispute that on April 30, 2001, she hired Defendant

Drew as Deputy Director of Recreation Services or that Ms. Drew is African-

American. However, Ms. Kelley received input from Mr. Stogner on Ms. Drew’s

hiring when Mr. Stogner told her that she could “get in good” with Morris

Williams if Ms. Kelley would hire Ms. Drew at a salary higher than Mr. Bryant,

even though Mr. Bryant had been with DeKalb County as a deputy director for

three (3) years. Exhibit “J” at p. 61. In addition, Mr. Williams told Ms. Kelley that

even though they both liked a Caucasian male that interviewed for the deputy

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director position the unemployed Ms. Drew was hired for, Mr. Williams could not

recommend the candidate to Mr. Jones because he is white. Exhibit “D” at ¶ 12.

16.

Ms. Kelley does not dispute that on March 20, 2001 voters in DeKalb

County authorized the issuance of $125,000,000 in Parks and Greenspace General

Obligation Bonds or that the County was also awarded $3,200,000 for 2001 and

$3,100,000 for 2002 for the purchase of additional Greenspace through the

Governor's Greenspace Program. Ms. Kelley does not dispute that the Greenspace

Program and its successful administration was a top priority for Mr. Jones during

his first term.

17.

Plaintiffs do not dispute that on February 12, 2002 Vernon Jones signed

Executive Order 1-5 "Interim Reorganization of the Department of Parks &

Recreation," but only after Defendant Stogner drafted the Order after

discussing the Order with CEO Jones, Defendant Williams and Defendant

Stone. Exhibit “F” at p. 35-37. Plaintiffs do not dispute that Defendants have

quoted from Executive Order 1-5 as follows:

The authorization for the issuance of $125,000,000 in Parks and Greenspace General Obligation Bonds and the award, through the Governor's Greenspace Program, of $3,200,000 for 2001 and $3,100,100 for 2002 for the purpose of additional greenspace for DeKalb County, creates the need to provide appropriate administrative oversight and staff support for these critical

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programs. In addition, it is important to provide long-range focus in the Parks and Recreation area on the primary objective of providing recreation services to the citizens of DeKalb County.

Exhibit 2.

However, Plaintiffs dispute that this is the entirety of Executive Order

1.5. Defendants only quoted part of the Executive Order, leaving out the

language pertaining to Plaintiffs. Accordingly, Plaintiffs will provide the

additional language that relates to them, as follows:

Ms. Becky Kelley, Director of Parks & Recreation, Ms. Dee Merriam, Manager, Planning & Special Projects, Mr. Michael Walker, Senior Planner, and Ms. Gina Goggins, Executive Secretary are administratively reassigned to the Chief Executive’s Office. They will report to Executive Assistant through Assistant County Administrator, Tina Arbes. Collectively the group will be responsible for the coordination and implementation of the Governor’s Greenspace Program in DeKalb County and the implementation of the 2001 Parks & Greenspace General Obligation Bond issue. Ms. Marilyn Drew is designated as the Acting Director of Parks and Recreation Department with responsibility for day-to-day operations. Ms. Drew will report to the Executive Assistant through Assistant County Administrator Morris Williams. Mr. John Drake, currently Assistant Director of Purchasing and Contracting, is administratively reassigned to the Parks and Recreatio n Department as Acting Assistant Director of Parks and Recreation. Mr. Terry Phillips, Assistant County Attorney, is administratively reassigned to the Purchasing Department as Acting Assistant Director of Purchasing.

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Mr. Morris Williams, Assistant County Administrator, is assigned the responsibility for coordinating a comprehensive process improvement review of the Parks & Recreation area and for the formulation of recommendations on organization, structure, policies and procedures thereof. Mr. Williams will assemble an appropriate Task Group for this initiative.

See id.

As set forth herein Executive Order 1.5 demoted Becky Kelley,

replacing her with Drew, an African-American employee, demoted John

Drake, replacing him with Terry Phillips, an African-American employee, and

assigned Mr. Drake to “prop up” Ms. Drew.

18.

Plaintiffs do not dispute that Mr. Stogner developed an implementation plan

for administering the Greenspace funds, that Mr. Stogner presented his proposal to

Mr. Jones.

19.

Plaintiffs do not dispute that Mr. Stogner recommended that it would be the

best fit for the Parks and Recreation Department to move Ms. Kelley to the

Greenspace program. Ms. Kelley disputes that she was moved to the position of

Greenspace Administrator. Ms. Kelley was never given any title when she was

moved to Greenspace. Exhibit “D” at ¶16. The position did not exist until

September of 2002, around the time Ms. Kelley announced her resignation. See

Stone Memorandum to Mr. Stogner dated September 12, 2002, attached as Exhibit

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34; Kelley’s Letter of Resignation to Stogner dated September 25, 2002, attached

as Exhibit 35.

Plaintiffs do not know whether Mr. Stogner recommended to Mr. Jones that

Ms. Drew be placed in the position of Acting Director of the Parks and Recreation

Department, but Plaintiffs dispute that he did so because he believed she had a

strong background in recreation services – “the area the administration sought to

emphasize”; rather, he did so because she was African-American and CEO Jones

wanted an African-American Director. Exhibit “J” at p. 168. Plaintiffs dispute that

Mr. Stogner recommended that Ms. Kelley be moved to the position of

Greenspace Administrator because her expertise and skill set was in the area of

conservation and parks development, not in recreational services. Ms. Kelley was

demoted from Director of the Parks Department and moved to the Greenspace

program because CEO Vernon Jones wanted to highlight African-Americans

within the Parks Department. See id.; Exhibit “C” at ¶ 10-12.

Furthermore, Ms. Kelley disputes the statement that she did not possess

expertise in recreation services. At the time of her demotion, she had twenty-five

years experience in recreation service provisions, and had developed, managed,

and directed program service provisions and attended state and national

conferences to sustain and advance her expertise in recreation service delivery.

Exhibit “D” at ¶ 19.

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Ms. Kelley disputes that Mr. Stogner recommended Ms. Kelley for

Greenspace because she had good relationships with a number of conservation

organizations that were involved in bond issues that would be beneficial in

attracting additional funds. Ms. Kelley has no knowledge of what organizations

Mr. Stogner is referring to or how her relationships would have attracted additional

funds. See id.

Plaintiffs do not dispute that Mr. Stogner drafted Executive Order 1-5 for

Mr. Jones' approval, although he did so only after consulting with Defendants

Jones, Williams and Stone. Exhibit “F” at p. 35-37. Plaintiffs do not know

whether Mr. Jones agreed with Mr. Stogner’s recommendation, but do not dispute

that Mr. Jones signed Executive Order 1-5.

20.

Plaintiffs do not dispute that pursuant to Executive Order 1-5, Plaintiff

Becky Kelley and others (Dee Merriam, Manager, Planning & Special Projects,

Michael Walker, Senior Planner, and Gina Goggins, Executive Secretary) were

administratively re-assigned to the Office of the Chief Executive or that these

individuals reported to Mr. Stogner through Assistant County Administrator Tina

Arbes.

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21.

Plaintiffs do not dispute that Ms. Tina Arbes was appointed Assistant

County Administrator by Mr. Jones in September 2001, that she left that

position in January, 2004, and that Ms. Arbes is white. Mr. Stogner

recommended that Ms. Arbes be hired to take on some of the job

responsibilities of Ms. Kelley to help “squeeze out” Ms. Kelley or encourage

her to leave. Exhibit “C” at ¶ 24. In fact, after Ms. Kelley was constructively

discharged in November of 2002, no one was hired to replace her. See

Stogner’s Responses to Plaintiffs’ Second Request for Production of

Documents at 14, attached as Exhibit 36.

22.

Plaintiffs do not dispute that Executive Order 1-5 states that

"[c]ollectively the group will be responsible for the coordination and

implementation of the Governor's Greenspace Program in DeKalb County and the

implementation of the 2001 Parks and Greenspace General Obligation Bond

Issue." Ms. Kelley disputes any inference, however, that she was given any

meaningful responsibilities. Exhibit “D” at ¶ 16.

23.

Ms. Kelley disputes that she was reassigned to the position of

“Greenspace Administrator” as discussed above. Ms. Kelley was demoted by

being transferred to the Greenspace Program without any title. Exhibit “D” at ¶

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16. While Ms. Kelley does not dispute that her demotion did not change her

salary or take away her merit status, she disputes any inference that she was

not demoted. As a consequence of her “transfer”, she was “taken from a

position of great stature and prominence and placed into a highly subordinate

role where [she] moved from personally managing a 19-20 million dollar

budget to having no financial oversight, from 300 full-time positions and 300

part-time positions to having quasi-oversight over three people.” Exhibit “J” at

p. 121. Moreover, Defendant Drew attempted to remove Ms. Kelley from her

office, so that she could take the office and move Ms. Kelley to a much

smaller, windowless office that used to be used for storage, which Ms. Kelley

refused to do. id. at p. 217. Even before Ms. Kelley was transferred, she was

stripped of her authority to hire needed staff in her own department and was

not made aware that employees were being hired. Exhibit “R” at ¶¶ 11-14.

24.

Ms. Kelley disputes that she was given the title “Greenspace

Administrator” and that she oversaw and administered DeKalb County's

$125,000,000 Parks and Greenspace Bond Program and was in charge of

developing land acquisition criteria and identifying land to be acquired with

$70,000,000 from the Greenspace Bond Program. Ms. Arbes was, in fact, in

charge of these tasks and even though Ms. Kelley was the most experienced

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person in the county, her input and ideas for implementing the bond program

were completely ignored. Exhibit “J” at pp. 121-122.

25.

Ms. Kelley does not dispute that "the bond program was an extremely

important program to the County, and it was important to have direction and

leadership in the administration of the bond program."

26.

Upon Ms. Kelley’s demotion on or around February 13, 2002, Ms. Kelley

does not dispute that she sent an e-mail to her colleagues informing them that

she had been reassigned to the Office of the Chief Executive. She sent the e-

mail to maintain a positive attitude to her employees and was trying to find a

way to continue to contribute to the County that she had worked for so long.

Exhibit “J” at pp. 131-32.

27.

Joe Stone and Morris Williams were involved in the decision to transfer

Ms. Kelley, as Mr. Stogner discussed Executive Order 1.5 with them during

the drafting process. Exhibit “F” at pp. 35-37. Also, Mr. Stone knew about the

transfer via Executive Order 1-5, but never made it official or gave Ms. Kelley

the title of “Greenspace Administrator” by filling out the proper Personnel

Action Form. Exhibit “D” at ¶ 16; Exhibit 34.

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28.

Plaintiffs do not dispute that pursuant to Executive Order 1-5, Ms. Drew was

designated Acting Director of the Parks and Recreation Department, or that as

Acting Director, Ms. Drew reported to Mr. Stogner through Mr. Williams.

Plaintiffs do not dispute that Ms. Kelley did not report to Ms. Drew. Plaintiffs do

dispute, however, that Ms. Drew never reported to Ms. Kelley. See Drew decl. at ¶

2.

29.

Mr. Stone and Mr. Williams were involved in the decision to designate

Ms. Drew as Acting Director. Exhibit “C” at ¶ 14. Mr. Stone, as the Director

of Human Resources, was responsible for assisting in finding department

directors, as he coordinates the advertising for these positions and his

department collects and disseminates the resumes of qualified candidates.

Exhibit “H” at p. 22. Mr. Williams was instrumental in getting Ms. Drew into

the director position, as they were friends and Mr. Williams wanted to promote

her. Exhibit “C” at ¶14. Also, Mr. Williams knew that he could not

recommend a white candidate to CEO Jones. Exhibit “D” at 12. Mr. Stone did

not want to hire a white person for positions in DeKalb County and was

working to remove white employees from DeKalb County. Exhibit “C” at ¶¶

10-11.

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30.

Plaintiff Kelley does not dispute that she applied for a position with

Georgia’s Department of Natural Resources after being approached by its

Commissioner or that she debated accepting the position because she did not wish

to leave DeKalb County. Exhibit “J” at p. 136-137. Ms. Kelley carefully

considered the offer before accepting the position. However, Ms. Kelley disputes

the inference that her resignation on September 25, 2002 was not a

consequence of the intolerable conditions Defendants placed her under. She

was constructively discharged and thus took a position with the State of

Georgia. Exhibit “J” at p. l37; Exhibit “D” at ¶ 7. In fact, Ms. Kelley received

e-mails from employees who did not work in the Parks Department, but knew

she had endured impossible employment conditions. For example, Sheriff

Thomas Brown, who is African-American, upon learning of Ms. Kelley’s

resignation and move to the job with the State, sent her an e-mail

congratulating her, saying, “I know what you have been going through and you

have handled it with grace. In the end you have been rewarded.” See Sheriff

Thomas Brown’s e-mail dated September 26, 2002, attached as Exhibit 37.

Ms. Kelley also received an e-mail from Angie Burd, a Parks Department

employee, which says “I have always admired your professionalism, which has

truly shown over the past year. You are such a strong person – not many could

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have survived the cards you were dealt. Good luck in your new adventure –

wow. DeKalb County’s loss is definitely the State’s gain.” See Angie Burd’s

e-mail dated September 25, 2002, attached as Exhibit 38.

Ms. Kelley disputes that her last day at work was October 9, 2002, but

does not dispute the contents of her resignation letter, except to the extent any

inference is implied that she left because she found another position. See

Kelley Personnel Action Form, showing separation date of November 12,

2002, attached as Exhibit 39. She was forced out, so she had to find another

position, as discussed in paragraph 23 above.

31.

Ms. Kelley does not dispute that on November 13, 2002, she became

employed by the State of Georgia as the Director of the Department of Natural

Resources, Parks and Historic Sites Division nor does she dispute that her

starting salary at the State was $97,500 per year. Ms. Kelley does not dispute

that she currently earns $102,000 per year in that position and that she is happy

there.

32.

Ms. Kelley does not dispute that she has accrued fully vested pension

benefits from DeKalb County. Ms. Kelley disputes that she has taken any

benefits or that she “actually received more in pension benefits at age 50 by

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retiring from the County in November, 2002 than she would have received had

she continued her employment for two more years.” Exhibit “D” at ¶ 6. She

has never received any such benefits nor has anyone informed her that this is

the case. See id. Ms. Kelley disputes Defendants’ statement that at the time of

her resignation from DeKalb County, Ms. Kelley earned $101,184 per year.

Ms. Kelley’s check stubs show that she made $8,916.84 per month when she

left or $106,993.01 per year and that she also enjoyed a $500 per month car

allowance that equated to $6,000/year, totaling $112,993.01 per year. See id.

at ¶7.

33.

Ms. Kelley does not dispute that on October 8, 2002, the DeKalb County

Board of Commissioners signed a Proclamation in recognition of Ms. Kelley's

distinguished years of service. Ms. Kelley does not know CEO Jones’s role in

bringing about the Proclamation. Ms. Kelley does not dispute the contents of

the Proclamation, which said, among other things: "Becky Kelley has been a

visionary in spearheading and completing DeKalb County's first-ever 10-year

Comprehensive Strategic Plan for Parks and Recreation and in guiding the

passage of a $125,000,000 Bond Referendum in 2001. As a champion for the

preservation of natural resources Becky Kelley envisioned, planned and

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administered the acquisition and development of the 2000+ acre nature preserve

known as Arabia Mountain Heritage Area."8

34.

As early as July of 2001 Ms. Kelley suspected Jones, Stogner, and

Williams were discriminating against her, purposefully creating a hostile

workplace environment, and intended either to harass her into resigning or

pursue her termination on account of her race. However, she could not

substantiate her suspicions or all of the individuals involved in this

discriminatory scheme until Mr. Herb Lowe came forward in the spring of 2004.

Exhibit “D” at ¶ 25.

35.

Ms. Kelley denies that the acts which she contends created a hostile work

environment all occurred more than two years prior to August 23, 2004. These

acts continued until the day she was constructively discharged in November of

2002. For example, even though she was purportedly transferred to the

Greenspace program, she was never given a title and remained double-billed in

the Director of Parks & Recreation position with Ms. Drew until Ms. Kelley was

constructively discharged in November of 2002. See Exhibit 34 (announcing

the position of “Greenspace Administrator” seven months after Kelley was

8 Plaintiff does not dispute that Defendant Jones acknowledged Governor

Perdue and Senator Cleland at the Arabia Mountain opening event.

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“transferred). Several months prior to Ms. Kelley’s discharge, she tried to

create responsibilities and had taken on a work plan for the advancement of the

Arabia Mountain Project. Exhibit “D” at ¶ 21. During the spring of 2002, she

received approval from Mr. Stogner and secured his approval to relocate her

office to Arabia. See id. Following his approval, Ms. Kelley purchased paint to

decorate her office and began to establish her office at Arabia. See id. During

the summer of 2002, she was told by Tina Arbes, and later confirmed by Mr.

Stogner, that she could not relocate her office to Arabia. Mr. Stogner reneged

on his agreement, and Ms. Kelley perceived this as part of their plan to keep her

frustrated and without responsibilities, so that she would quit. See id.

Moreover, during the summer of 2002, she was not invited or allowed to

contribute to the development of the park development portion of the Parks and

Greenspace program, which clearly should have been part of her responsibilities

pursuant to Executive Order 1.5 and because of her prior experience with the

department. See id. at ¶ 22. Finally, Ms. Kelley had to demand performance

reviews in 2001 and in 2002. She never received a review or a longevity

increase in 2002 despite her demands, which means she will receive less money

in her pension. See id.

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36.

From January 1, 2001 until the time Ms. Kelley left the county in

November of 2002, no Parks Department employee directed any racial slur,

racial epithet or racial symbol toward plaintiff Kelley; however, CEO Jones’s

intimidation and policy of discrimination and Mr. Williams, Mr. Stogner and

Mr. Stone’s execution of CEO Jones’s policy was offensive to Ms. Kelley and

demonstrated that the Jones’ administration excluded her based on her race, as

discussed in paragraphs 15, 17, 19, 21, 23, 24, 27-29, 33-34, 36-37. The late

DeKalb County Commissioner, Lou Walker (District 7), who was part of the

leadership of DeKalb County’s Greenspace team, on or around April 17, 2001,

stated that he was not going to listen to that “little white woman,” and was

referring to Ms. Kelley. Exhibit “J” at pp. 71-72. Moreover, former Human

Resource employee, Walter Murray, heard Joe Stone refer to a white DeKalb

County employee in Water & Sewer as “cracker”. Exhibit “R” at ¶ 6.

37.

Plaintiff Kelley does contend that Mr. Stone and Ms. Drew created a

racially hostile work environment for the reasons set forth in paragraphs 15, 17,

19, 21, 23, 24, 27-29, 33-34, 36-37 above.

38.

Plaintiff Kelley disputes that she has alleged that Mr. Williams engaged in

only one incident which created a hostile work environment. Ms. Kelley contends

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that all Defendants conspired to keep her frustrated and without responsibilities, so

that she would quit. Mr. Williams had oversight of the Parks and Recreation

Department. Exhibit “E” at p. 21-22. Mr. Williams was involved in the decision to

demote Ms. Kelley to the Greenspace Program, which took her “from a position of

great stature and prominence and placed into a highly subordinate role where [she]

moved from personally managing a 19-20 million dollar budget to having no

financial oversight, from 300 full-time positions and 300 part-time positions to

having quasi-oversight over three people.” Exhibit “J” at p. 121. Mr. Williams

wanted Ms. Kelley out of her position as the Director of the Parks and Recreation

Department so that he could get an African-American and friend, Ms. Drew, into

the position. Exhibit “C” at ¶ 14; Exhibit “D” at ¶ 12. Williams was also in charge

of the development portion of the Greenspace Program.

Plaintiff Kelley does not dispute that prior to the time Williams was

successful in having her removed as Director of Parks and Recreation, and in

furtherance of his goal to marginalize Ms. Kelley and replace her with Ms. Drew,

Williams publicly expressed concern over the proposed location of an animal

rescue facility, implying that Ms. Kelley selected this location because it was in a

black community. Exhibit “J” at p. 79.

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39.

Plaintiff Kelley does not deny that she was never “physically” prevented

from making recommendations regarding implementation of the Greenspace

Bond program because she was never denied access to word processing

equipment, administrative support or the telephone. However, she does deny

that her advice, perspective or comments were welcomed, received or

encouraged; on the contrary, she was repeatedly rebuffed. id, at p. at 122. Ms.

Kelley does not dispute that she remained in the same office she occupied as

Director of Parks and Recreation until she left the county on November 12,

2002. Ms. Kelley does dispute any inference that Defendants did not try to

remove her from her office. Ms. Drew tried to have Ms. Kelley removed from

her office to a much smaller windowless office that was previously used for

storage and was located on a different floor, so that Ms. Drew could take Ms.

Kelley’s office. id. at p. 217. Ms. Kelley in no uncertain terms, refused to do

so, forcing Ms. Drew to drop the matter. See id.

Ms. Kelley did not testify that Tina Arbes or Richard Stogner said

anything to Ms. Kelley that would lead her to believe that they did not accept

her recommendations because she is white. Ms. Kelley testified that her ideas

were not even given credence in large part because she was white due to the

fact that the CEO and the administration had a set direction for the bond

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program and how it would be administered, and her ideas and perspective were

not welcome. id. at p. 123.

40.

Ms. Kelley was never asked to perform important substantive tasks in

connection with the Greenspace Bond Program. Exhibit “D” at ¶¶ 7, 16-17.

Ms. Kelley disputes the allegation that Mr. Stogner found many of Ms.

Kelley's recommendations to be inappropriate or inadequate because Mr.

Stogner never told her that this was the case nor can Mr. Stogner point to any

correspondence he sent to Ms. Kelley to substantiate this allegation. id. at ¶ 20.

41.

Ms. Kelley does not dispute that Mr. Jones and Mr. Stone were not

involved in the day-to-day operations of the Greenspace Program, but does

dispute the statement that Drew and Williams were not. Williams was directly

in charge of the development portion of the program and Drew was responsible

to Williams for its implementation. Exhibit “D” at ¶ 24; Exhibit 2.

42.

Plaintiff Kelley disputes Defendants’ contention that she never complained

to Vernon Jones, Richard Stogner, Morris Williams, Joe Stone or Tina Arbes that

she was experiencing a hostile work environment or that she was being

discriminated against on account of her race. Ms. Kelley repeatedly spoke with and

complained to Stogner about the hostile work environment and racial

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discrimination. Exhibit “D” at ¶ 25. She also met privately with Joe Stone in July

of 2001 to report what she was experiencing. See id. She complained that CEO

Jones and Defendant Williams, after Ms. Drew was hired, would bypass her and go

directly to Ms. Drew with issues involving her department. Exhibit “J” at 110-11.

43.

Ms. Kelley is without knowledge as to whether Mr. Jones, early in his

administration, advised all of his department heads that all communications

to/from the media should be channeled through the County's public

communications office. CEO Jones barred Ms. Kelley from communicating with

the media. Exhibit “J” at pp. 104-105. Ms. Kelley is also without knowledge as to

whether Mr. Jones communicated to all staff members that communications

with/instructions from members of the Board of Commissioners should be

channeled through Mr. Stogner or the Office of the CEO. Ms. Kelley does not

dispute that Mr. Jones ordered Ms. Kelley to refrain from speaking with the press

or Board of Commissioners.

44.

Plaintiff Kelley does not dispute that she never filed a charge of

discrimination with the Equal Employment Opportunity Commission or the

State of Georgia related to the conduct of any defendant or DeKalb County and

that did not file any grievance or complaint of discrimination with DeKalb

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County's Office of Contract Compliance and Equal Employment Opportunity

related to any act or conduct of any defendant. Ms. Kelley did not do so because

she could not substantiate any of her suspicions of discrimination until Mr.

Lowe came forward in the spring of 2004 and confirmed that she had been

targeted because of her race and confirmed that Defendants were responsible.

Exhibit “D” at ¶ 25.

Plaintiff Michael Bryant

45.

Mr. Bryant does not dispute that he began his employment with the Parks

Department as Deputy Director, Planning and Support Services on May 18, 2000,

that he served as the interim Deputy Director for Recreation Services, or that he

is white.

46.9

Plaintiff Bryant does not dispute that he served in various local

governmental positions prior to being employed with DeKalb County, including

City Manager of Fayetteville, Georgia.

9 Plaintiffs do not dispute that paragraphs 46-52 do not relate to Plaintiff

Bryant’s claims against Defendants Stogner, Stone, Williams, and Jones. In fact, these paragraphs do not relate to this action at all. Nevertheless, Defendants have included these paragraphs in an obvious effort to attack Mr. Bryant’s character. Plaintiffs dispute that paragraphs 53-54 and 56-58 do not relate to Plaintiff Bryant’s claims against Defendants Stogner, Stone, Williams, and Jones.

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47.

Plaintiff Bryant does not dispute that sexual harassment claims were asserted

against him as part of a conspiracy between an employee whom he disciplined and

a small governmental contractor who believed he was interfering with her ability to

do business with the City of Fayetteville. Exhibit “M” at pp. 244-245, 252-255.

Plaintiff Bryant disputes that he left his position with the City of Fayetteville as a

result of the harassment charge. id. at p. 385-387.

48.

Plaintiff Bryant does not dispute that he had conflicts with other employees

on occasion, including Ms. Drew.

49.

Plaintiff Bryant does not dispute that he had conflicts with other employees

on occasion, including Ms. Drew.

50.

Plaintiff Bryant does not dispute that Ms. Kelley completed a performance

evaluation that reflected some difficulties he experienced with other employees.

This performance evaluation, however, also noted that overall Mr. Bryant

exceeded the standards on which he was reviewed. Exhibit “J” at p. 157.

51.

Plaintiff Bryant does not dispute that he has had unsubstantiated claims of

discrimination filed against him. Exhibit “M” at pp. 129, 213-214. Bryant

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recommended that Samuel Richardson be disciplined on two separate occasions,

both of which were accepted by Ms. Drew. After the second disciplinary action,

Mr. Richardson brought a claim of race discrimination against Mr. Bryant, alone.

id. at p. 129.

52.

Plaintiff Bryant does not dispute that he had conflicts with Herbert Lowe.

53.

Plaintiffs do not dispute that Ms. Drew has the discretionary authority to

make and implement decisions related to day-to-day management of her

department, organizational priorities within her department, personnel assignments

within her department, assigning duties within her department, utilizing

subordinates and their expertise in her department the way she deems appropriate,

allocating resources within her department, and hiring and staffing her department.

Plaintiffs, however, dispute that Ms. Drew’s discretion allowed her to undertake

illicit and discriminatory actions in furtherance of Mr. Jones scheme, as

implemented by other Defendants, to marginalize white managers county wide and

replace them with African-Americans.

54.

Mr. Bryant disputes that on June 10, 2002, Defendant Drew assigned him

the “tasks” performed by the Deputy Director, Recreation Services. Mr. Bryant

has never been permanently assigned to perform “tasks” of a Deputy Director

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of Recreation Services. Ms. Drew’s reassignment memorandum stated this

was only a temporary assignment. Exhibit 17. Mr. Bryant’s temporary

reassignment to assume leadership of the Recreation Services Division was a

ruse; Mr. Bryant’s title never officially changed. See Mike Bryant’s Personnel

Action Form, showing title as “Deputy Director of Revenue Management and

Support Services,” attached as Exhibit 40; Exhibit “A” at ¶ 5. In fact, on

October 9, 2003, Mr. Marvin Billups, an African-American deputy director,

was given the title of Deputy Director of Recreation in October of 2003, which

is the official title for the job Mike Bryant is purportedly charged with

performing. Exhibit 10.

Mr. Bryant does not dispute that he was stripped of all of his responsibilities

for planning and support services and that these functions were assigned to John

Drake, even though Mr. Drake was supposed to function as an Assistant Director.

See id.; Exhibit “A” at ¶ 5. Mr. Bryant was demoted to an area in which he had

insufficient expertise, so that he would become frustrated or appear incompetent

and ultimately quit. Exhibit “A” at ¶ 6; Exhibit “M” at p. 227-28; Exhibit “N” pp.

514-515. He was transferred from the Maloof Building, which houses the Jones’

administration and other deputy directors, and relocated to the Tucker Recreation

Center, without any office, secretary, appropriate staffing, computers or

information, isolating him from the Jones administration and other upper level

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Parks Department employees. Exhibit “A” at ¶17; Exhibit “M” at p. 225-28, 230-

31. Mr. Bryant was stripped of his responsibilities over the management of the

park and recreation golf and tennis contracts. Exhibit “M” at pp. 232-34; Exhibit

“A” at ¶ 5, 18; Exhibit 17. These responsibilities were reassigned to Detrick

Stanford, an African-American employee, after Mr. Bryant complained to

Defendant Stogner that a minority contractor at Sugar Creek Golf Course was

paying his wife an unwarranted high salary. See id. Mr. Bryant does not dispute

that he previously served as the interim Deputy Director, Recreation Services for

six months, when he reported to Ms. Kelley.

55.

Plaintiff Bryant disputes that the June 10, 2002 reorganization was necessary

to flatten and realign management roles and responsibilities in the Parks and

Recreation Department. All told, Defendant Drew’s decision to assign Mr. Bryant

to the Deputy Director of Recreation services corroborates Defendant Lowe’s

statements that Mr. Bryant was being targeted because of his race and put in a

dead-end job in an area outside his expertise, so that he would become frustrated,

be perceived as incompetent and eventually quit. Exhibit “N” at pp. 514-15;

Exhibit “C” at ¶¶ 10-11.

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56.

Mr. Bryant disputes that he has ever been assigned the “tasks” performed by

the Deputy Director, Recreation Services. Mr. Bryant has never been permanently

assigned to perform “tasks” of a Deputy Director of Recreation Services. Ms.

Drew’s reassignment memorandum stated this was only a temporary assignment.

Exhibit 17. Mr. Bryant’s temporary reassignment to assume leadership of the

Recreation Services Division was a ruse; Mr. Bryant’s title never officially

changed. Exhibit 40; Exhibit “A” at ¶ 5. In fact, on October 9, 2003, Mr. Marvin

Billups, an African-American deputy director, was given the title of Deputy

Director of Recreation in October of 2003, which is the official title for the job

Mike Bryant is purportedly charged with performing. Exhibit 10.

57.

Mr. Bryant does not dispute that the Recreational Services Division is an

important division within the Parks and Recreation Department, however, he

denies that the tasks ascribed to him as Deputy Director of Recreation Services

increased his significance within the Park and Recreation Department for the

reasons stated in ¶ 54 above.

58.

Plaintiffs do not dispute that during Ms. Drew’s tenure with the Parks and

Recreation Department, the Deputy Director of Recreation Services did not have

oversight or any other responsibility for the County’s public golf course and tennis

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contracts. Mr. Bryant disputes, however, that he has ever been officially

transferred to the Deputy Director of Recreation Services. Mr. Billups actually

enjoys that title and his office remains in the Maloof Building. Exhibit 10. Mr.

Bryant was responsible for the golf and tennis contracts as the Deputy Director,

Planning and Support Services, until these responsibilities were taken away by Ms.

Drew after Mr. Bryant complained to Defendant Stogner that a minority contractor

at Sugar Creek Golf Course was paying his wife an unwarranted high salary, and

reassigned to Detrick Stanford, an African-American employee. Exhibit “M” at pp.

232-234; Exhibit “A” at ¶ 5, 18.

59.

Plaintiffs do not dispute that Mr. Bryant’s responsibilities as deputy director

for planning and support services were assigned to John Drake, even though Mr.

Drake was supposed to function as an Assistant Director. Exhibit 10; Exhibit “A”

at ¶ 5. Plaintiffs do not dispute that Mr. Bryant’s responsibilities as deputy director

for management of the golf and tennis contracts were reassigned to Detrick

Stanford. See id.

60.

Mr. Bryant disputes Defendants’ statement that Richard Stogner, Joe

Stone, Vernon Jones and Morris Williams were not involved in the decision to

assign Mr. Bryant the Recreation Services tasks, while giving the title to Mr.

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Marvin Billups. First, Mr. Williams is Ms. Drew’s supervisor and is in charge

of reorganizing Parks & Recreation pursuant to Executive Order 1.5. Exhibit 2.

Mr. Williams was copied on Ms. Drew’s memorandum making the “temporary

reassignments” that demoted Mr. Bryant and reassigned his duties to other

employees and he admits to talking to Ms. Drew about having more

supervisors moved out of the Maloof building, yet only Mr. Bryant was

moved. Exhibit “E” at p. 94-95; Exhibit 40.

Additionally, CEO Jones, Mr. Williams and Mr. Stone told Mr. Lowe

that the agenda was to remove certain white employees from Parks and

Recreation, including Mr. Bryant, describing Mr. Bryant as just a white

employee waiting to retire. Exhibit “N” at p. 336; 352-56; Exhibit “C” at ¶¶

10-11.

In addition, Defendants Stogner and Williams knew Mr. Bryant had

complained that a minority contractor at Sugar Creek Golf Course was

awarding his wife an unwarranted high salary, and shortly thereafter, Mr.

Bryant was demoted to working on some recreation tasks and stripped of his

oversight of golf and tennis contracts. Exhibit “A” at ¶ 5; Exhibit “M” at p.

235-36. Even starting in fall of 2001, Mr. Bryant complained to Mr. Stogner

that Mr. Williams had asked a selection committee to turn off the tape recorder

during a meeting so that Mr. Williams could state the CEO Jones’s dictate that

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a black contractor be awarded the contract at Sugar Creek. Exhibit “M” at pp.

331-334; 340-41. Mr. Stogner did nothing and referred Mr. Bryant back to

Mr. Williams. id. at pp. 340-41.

61.

Mr. Bryant disputes that he has ever been officially transferred to the Deputy

Director of Recreation Services. Mr. Billups actually enjoys that title and his

office remains in the Maloof Building. Exhibit 10. Although Ms. Drew reassigned

Mr. Bryant to perform “recreation tasks” on June 10, 2002, Director Drew did not

move plaintiff Bryant's office to the Tucker Recreation Center from the Maloof

Building in Decatur until August 5, 2002. Exhibit 18. Mr. Bryant does not dispute

that his salary and benefits remained the same. However, as described above in

¶35, Mr. Bryant disputes any inference that because he was moved without any

change in his salary or benefits that he was somehow not demoted, stripped of all

of his authority and isolated from the Jones’ administration, his supervisor

Defendant Drew and other Parks Department deputy directors and co-workers.

Exhibit “A” at ¶17; Exhibit “M” at pp. 225-28, 230-31. Mr. Bryant does not

dispute that “[a]t that time, at least one other Deputy Director in the Parks

Department worked outside the Maloof Building located in downtown Decatur.”

However, the other deputy director stationed outside the Maloof building was

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also white, although he was stationed elsewhere prior to the Jones’

administration. Exhibit “L” at pp. 7-8.

62.

When Ms. Drew was Deputy Director, Recreation Services, Mr. Bryant did

not suggest that Ms. Drew move her office to the Tucker Recreation Center

location; rather Mr. Bryant recommended that the Deputy Director of Recreation

Services maintain an office at the Tucker Recreation Center so that they would

have regular contact with employees there. Exhibit “A” at ¶ 17. As stated above,

Mr. Bryant has never been officially transferred to the Deputy Director of

Recreation Services, Mr. Billups actually enjoys that title and his office remains in

the Maloof Building. Exhibit 10. Prior to Mr. Bryant’s removal to the Tucker

location, he recommended that the Tucker location be redesigned so that offices

were allocated to employees working there, including designating an office for the

deputy director, which Defendant Drew rejected. Exhibit “A” at ¶ 17. Instead,

Defendant Drew removed Mr. Bryant to Tucker, but did not give him an office,

adequate computer equipment, staffing, a secretary or requisite information to

function to set him up to fail. See Exhibit “A” at ¶17; Exhibit “M” pp. 231-34,

491. Mr. Bryant agrees that it makes logical sense for the Director of Recreation

Services to work from the Tucker location, but does not agree that this person

should not have an office at the Maloof building as well. See id.

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63.

See Response to ¶ 62.

64.

Richard Stogner, Joe Stone, Vernon Jones and Morris Williams were, in

fact, involved in the decision to move Mr. Bryant's office location to the Tucker

Recreation Center. Defendants admit in paragraph 19 above that the Jones’

administration “sought to emphasize” the recreation services area, which is the

reason Defendant Drew was made Acting Director of the Parks Department.

First, pursuant to Executive Order 1.5, Defendant Morris Williams was

“assigned the responsibility for coordinating a comprehensive process

improvement review of the Parks Department area and for the formulation of

recommendations on organization, structure, policies and procedures there.”

Exhibit 2. Mr. Stogner drafted Executive Order 1.5 and, thus, involved

himself in reassignments and personnel decisions of the Parks Department.

See Paragraph 19, Defendants’ Joint Undisputed Statement of Facts. In

addition, Defendant Drew reported to Defendant Stogner through Defendant

Williams. Exhibit 2. Furthermore, CEO Jones, Mr. Stone, Mr. Williams and

Ms. Drew were each involved in the scheme to discriminate against white

employees in the Parks Department and specifically targeted Mr. Bryant,

trying to keep him from being visible in the Parks Department. Exhibit “C” at

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¶¶ 10, 11, 13. Moving Mr. Bryant to the Tucker Center location helped

effectuate their plan to keep him from being visible.

65.

Contrary to Defendants’ contentions, Richard Stogner, Joe Stone, Morris

Williams, Vernon Jones and Marilyn Boyd Drew created a pervasive hostile

work environment for Plaintiffs and Mr. Bryant. First, CEO Jones’s policy was

to discriminate against white employees, including Mr. Bryant. See Exhibit “C”

at ¶ 10; Exhibit “N” at p. 336. Defendant Drew continually implemented CEO

Jones’s discriminatory policy by putting the policy in writing and requiring

Bryant to implement it. See Exhibit 5 (requiring management to hire, promote

and develop employees who “reflect the DeKalb County population.”)

Defendant Drew also required that Mr. Bryant apply CEO Jones’s

discriminatory policy by requiring him to engage in racial stereotyping by only

hiring African-Americans to work for parks serving African-Americans, thereby

interfering with his job performance. See Exhibit “M” pp. 60-62. Ms. Drew

told Mr. Bryant that CEO Jones wanted the Parks Department to hire and

promote African-Americans in the Parks and Recreation Department. See

Exhibit “M” pp. 17-18.

Second, Defendant Stogner executed CEO Jones’s policy; he knew CEO

Jones wanted an African-American Parks Department Director and wanted to

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highlight African-American employees in the Parks Department. See Exhibit

“J” at pp. 169-171; Exhibit “C” ¶10. Mr. Bryant complained to Defendant

Stogner that Defendant Williams was discriminating by illegitimately awarding

a minority firm a contract involving Sugar Creek Golf Course, but Defendant

Stogner rebuffed Mr. Bryant and told him just to work it out with Defendant

Williams. See Exhibit “M” pp. 331-334; 340-41.

Third, in March of 2002, Mr. Bryant complained that an African-

American contractor at Sugar Creek Golf Course was paying his wife an

unwarranted high salary. See Exhibit “M” p. 236. Shortly thereafter, in June of

2002, Mr. Bryant stopped receiving any information necessary for oversight of

the golf course contracts and was stripped of his responsibilities for the

oversight of all golf and tennis centers, and those responsibilities were given to

Detrick Stanford, an African-American employee who was not at the deputy

director level. Exhibit 17. Mr. Williams was copied on the memorandum that

took away Mr. Bryant’s responsibilities. See id. Mr. Williams himself was

interfering with Mr. Bryant’s job performance by discriminating in awarding

contracts to minorities, and Mr. Williams did nothing when Mr. Bryant

complained to him about Director Drew. See Exhibit “M” pp. 331-334; 340-41.

Fourth, Defendant Stone perpetuated a hostile work environment that

interfered with Mr. Bryant’s job performance as well. In October of 2003,

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Defendant Stone approved and processed Mr. Marvin Billups’s transfer from

being double-filled in Herbert Lowe’s position as Deputy Director of Strategic

Management and Development to Deputy Director of Recreation Services.

Exhibit 10. In so doing, Mr. Stone allowed Mr. Billups, an African-American

deputy directory, to be awarded the title of the position that Mr. Bryant was

supposed to be performing. Exhibit 17. Interestingly, Mr. Billups was awarded

this position on or around the time Mr. Bryant filed his EEO Complaint against

Defendant Drew. Exhibit 23. Moreover, Mr. Stone never took Mr. Bryant’s

EEO Complaint seriously, and allowed the complaint to go unresolved until

nine (9) months later. See Mr. Stone’s Memorandum on EEO Investigation

Completion dated April 26, 2004, attached Exhibit 41; Stogner memorandum

appointing Mr. Stone as “Acting EEO Officer” for the County, attached as

Exhibit 42. Revealingly, Mr. Stone’s investigation memorandum was only

received by the law department in September of 2004, and Mr. Stone never

informed Mr. Bryant that the investigation was complete or apprised him of his

findings. Exhibit 41; Exhibit “M” p. 410; Exhibit “H” at p. 36. Moreover,

Defendant Stone allowed and approved Defendant Marilyn Drew’s hiring as a

deputy director at a higher salary than Mike Bryant, even though Mr. Bryant, at

the time, had been a deputy director with the County for three (3) years. See

Exhibit “J” at p. 61.

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66.

Plaintiff Bryant complained to Richard Stogner, Joe Stone, Morris Williams

and Vernon Jones that he had been discriminated against or subjected to a hostile

work environment on the basis of his race. First, on or around fall of 2001, Mr.

Bryant approached Mr. Stogner to complain that Mr. Williams was illegitimately

awarding a minority firm a contract related to Sugar Creek Golf Course. Exhibit

“M” pp. 331-334; 340-41. Mr. Bryant told Defendant Stogner that Mr. Williams

made the selection committee turn the tape recorder off during the meeting, so that

Mr. Williams could relay to the committee that CEO Jones wanted the contract to

go to a minority firm, even though it was not warranted. Id. Mr. Stogner ignored

Mr. Bryant’s complaint. id. Second, in the spring of 2002, Mr. Bryant complained

to Mr. Williams about Defendant Drew while the two were traveling to Sugar

Creek Tennis Center. See Exhibit “A” at ¶ 19. Mr. Bryant complained about

Drew’s lack of management, different treatment of white and black employees, and

that he suspected Drew discriminated against him and was setting him up for

failure. id. Mr. Williams responded that he should give her time and that it was

difficult being a “black manager” and that Mr. Williams wanted to write a book on

that subject. id. Third, during the summer of 2003 shortly before Mr. Bryant filed

his EEO Complaint against Defendant Drew, Mr. Bryant sent several e-mails to

Mr. Stone indicating that he was being discriminated against and that he wanted to

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file a complaint against Defendant Drew. See Bryant e-mails to Stone complaining

of Defendant Drew’s harassment, attached hereto as Exhibit 43. Fourth, Bryant

met with CEO Jones on May 10, 2004 and asked CEO Jones to attend a staff

meeting with him to discuss issues of an “egregious nature” that were going on in

the department. Exhibit “M” at pp. 455-57. CEO Jones agreed to attend, but failed

to appear. id. Bryant called CEO Jones’s office to reschedule, but his call was

never returned. id. Given that this was on the heels of the EEO investigation

against Defendant Drew, it is clear that CEO Jones knew that at least some of Mr.

Bryant’s issues he wanted to discuss with him dealt with race discrimination in the

department. Exhibit 41.

67.

Mr. Bryant does not dispute that, to his knowledge, no defendant has

ever directed any racial slur or racial epithet toward Plaintiff Bryant in his

presence. However, Mr. Bryant has been the victim of racially offensive

remarks, though these remarks may not have taken the form of a racially

offensive symbol. Specifically, Mr. Bryant was present during two executive

team meetings in 2003 and 2004 when Defendant Drew distributed a written

polic y of discrimination. Exhibit “M” at pp. 17-18. Defendant Drew

distributed a document titled “Management Accountabilities,” which states

that management is to “[h]ire and develop competent and promotable

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employees who reflect the DeKalb County population.” See id; see also

Exhibit 5; Exhibit “M” p. 17; Exhibit “I” at p. 9. Defendant Drew also told

Mr. Bryant that it was the policy of CEO Jones to hire based on the population

of the county. See Exhibit “M” at p. 18. Furthermore, Defendant Drew told

Mr. Bryant to hire an African-American for the Browns Mill Recreation Center

Director because the community in which the center was located was black.

See Exhibit “M” at pp. 61, 66. Additionally, Defendant Drew declined the

recommendation of the hiring committee, which was headed by Bryant and

included three African-American employees, to hire a white female as a sports

coordinator. See Exhibit “M” at pp. 152-155. Defendant Drew hired an

African-American male instead because Drew said she had a duty to hire based

on the race of the community. Exhibit “M” at p. 154.

During the time Mr. Bryant oversaw the contracts for DeKalb ’s golf

courses, Defendant Morris Williams on two separate occasions said that CEO

Jones wanted a minority contractor for one of the go lf courses. Exhibit “M” at

p. 333. In addition to these discriminatory remarks, in the spring of 2004, Mr.

Lowe confirmed that Mr. Bryant was being targeted because of his race. See

Exhibit “A” at ¶10.

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68.

Plaintiffs dispute that the majority of the Parks and Recreation Department’s

management team had been deficient in providing timely performance reviews.

See Exhibit “M” at p. 322. Plaintiffs do not dispute that there were instances in

which some employees of the Parks and Recreation Department were not provided

timely performance evaluations. id.

69.

Plaintiff Bryant does not dispute that he does not believe that there was any

racial animus in the failure of other supervisors to timely complete performance

evaluations. Unlike Drew, however, Plaintiffs have no evidence that these

supervisors were refusing to prepare performance reviews for white managers,

while preparing them for African Americans managers. Exhibit “I” at pp. 118-119.

70.

Plaintiffs dispute that Detrick Stanford did not receive a performance review

and that he received a lump sum retroactive merit increase upon his departure. Ms.

Drew testified that she appraised that Mr. Stanford had done a job that met

standard, and that she suggested that he receive a raise. Exhibit “I” at p. 128. She

never testified that he actually received the raise. id.

71.

Plaintiff Bryant disputes that he has been compensated for all of his missed

merit increases. Drew Declaration at ¶ 27; Exhibit “M” at p. 316-317

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72.

Plaintiff Lowe disputes that Ms. Underwood was his only direct report.

Exhibit “N” at pp. 123-124. Plaintiff Lowe has no knowledge of what happened

with Ms. Underwood after he was transferred from the Parks and Recreation

Department.

73.

Plaintiffs do not dispute that a new performance appraisal process was

implemented beginning in 2002; that this process required employees to submit a

performance plan to their supervisor; or that that prior to submission to HR for the

determination of a merit increase (if any), the employee and his/her supervisor

were required to submit a performance plan.

74.

Plaintiff Drake does not dispute that the failure of his employees to develop

performance plans delayed his ability to complete performance appraisals.

Plaintiff Drake does not dispute that he did not discriminate against his employees

based on race. See Exhibit “K” at pp. 201-203.

75.

Plaintiffs dispute that Ms. Drew attempted to meet with Drake and Bryant to

go over their performance plans or that Bryant submitted a deficient performance

plan. Ms Drew testified that Bryant and Drake submitted performance plans in

2003. Exhibit “I” at p. 125. Ms. Drew’s officer never moved forward on these

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plans because they were lost, and then incredibly found after the initiation of this

lawsuit. id at pp. 126-127.

76.

Mr. Bryant does not dispute that he requested a leave of absence for surgery

on his neck or that Ms. Drew requested that he submit a leave request or meet with

her to insure that his responsibilities were covered while he was out on leave.

77.

Plaintiffs do not dispute that Ms. Drew denied Mr. Bryant’s request to use

compensatory time. Plaintiffs dispute that a compensatory time policy for

management-level employees in the Parks and Recreation Department was not in

place. Ms. Drew routinely allowed African American employees to use

compensatory time and personally requested the use of compensatory time to cover

her vacation, which was granted by Williams. See Exhibit “M” at p. 274-278;

Compare Exhibit 19 to Exhibit 20.

78.

Mr. Bryant disputes that he did not provide Ms. Drew with documentation of

his compensatory time when requested. See Exhibit “M” at p. 263-264. Mr.

Bryant did in fact provide the requested documentation only to be told by Ms.

Drew that it was not in the correct format. id. When he requested guidance on the

correct format, Ms. Drew refused to respond. id.

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79.

Mr. Bryant does not deny that he was paid for his leave of absence through

his use of annual sick leave. To be compensated, however, Mr. Bryant was forced

to use his sick leave, while African American employees were routinely allowed

use compensatory time. See Exhibit “M” at p. 274-278.

80.

Plaintiffs do not dispute that Ms. Drew denied Mr. Bryant’s request to return

to work on light duty in late February or early March, 2002. Plaintiffs dispute that

Ms. Drew believed that her denial of Mr. Bryant’s request was consistent with

DeKalb County Policy. Ms. Drew allowed African American employees,

including Dwight Hunter, to return to work with severe physical restrictions. See

Exhibit “M” at pp. 276-278; Exhibit “I” at p. 239-241, 245.

81.

Plaintiffs do not dispute that Dwight Hunter, an African American, was

permitted to return to work in light duty capacity, while Mr. Bryant was denied the

same accommodation. See Exhibit “M” at pp. 99, 231, 236, 246, 261, 268, 274,

276-278, 291; Exhibit “I” at p. 239-241, 245.

82.

Plaintiffs dispute that Ms. Drew knew that Mr. Bryant had a disability. Mr.

Bryant expressly requested a leave of absence for a scheduled surgery. See

Defendants’ Joint Statement of Undisputed Material Facts in Support of their

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Renewed Motions for Summary Judgment, at ¶ 76. Moreover, Mr. Bryant

expressly requested that Ms. Drew allow him to return to work on light duty

restriction because of his physical limitations, which included his inability to lift

heavy objects. id. at ¶¶ 80, 81.

83.

Plaintiff Bryant does not dispute that Mr. Stogner, Mr. Stone, or Mr. Jones

were not the decision makers denying his request to use compensatory time,

denying his request to return to work in light duty capacity, or refusing to provide

him with performance evaluations. Plaintiff Bryant disputes, however, that Mr.

Stogner, Mr. Stone, or Mr. Jones were not involved. The decisions made to deny

Bryant’s request to use compensatory time, deny his request to return to work in

light duty capacity, and refuse to provide him with performance evaluations were

part of Jones discriminatory scheme as implemented by the other Defendants, in

this case Ms. Drew, to eliminate white employees through indirect means such as:

intimidation and creating a negative work environment. See Exhibit “C” at ¶¶ 8,

10-13; Exhibit “N” at pp.; 338-339, 353-54, 470-471, 476-77, 514-515.

84.

Mr. Williams has direct supervisory authority over the Parks Department

and its employees, including Mr. Bryant and Mr. Drake. See Williams dep. at p.

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21-22. Plaintiffs dispute that Mr. Williams was not involved in day-to-day

management or employment decisions. Exhibit “E” at p. 36, Exhibit “D” at ¶ 12.

85.

Plaintiffs dispute that Mr. Williams did not instruct Mr. Bryant to give

preferential treatment to a small business contractor based on his minority status.

See Exhibit “M” at p. 332-333. Plaintiffs do not dispute that the company which

was initially selected got the contract in spite of Mr. Williams directive to give the

contract to the minority contractor. id.

86.

Plaintiffs do not dispute that Mr. Williams made offensive comments to Mr.

Bryant prior to April 16, 2001. See Exhibit “M” at p. 146.

87.

Plaintiffs do not dispute that Mr. Williams made offensive comments to Mr.

Bryant prior to April 16, 2001. See Exhibit “M” at p. 149.

88.

Plaintiff Bryant does not dispute that he sends emails in the course of his job

responsibilities, nor does he dispute that Ms. Drew ignores these emails.

89.

Plaintiff Bryant does not dispute that he requested a car allowance similar to

the one provided to Billups, an African American, and this request was ignored by

Ms. Drew.

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90.

Mr. Bryant does not dispute that he is reimbursed for the automobile

expenses that he incurs in the performance of his job. Mr. Bryant, however,

disputes that this reimbursement is the equivalent to receiving a monthly

automobile stipend, which was provided to African American employees of the

Parks and Recreation Department, and denied to Mr. Bryant. See Exhibit “M” at p.

328-329.

91.

Mr. Bryant does not dispute that county vehicles are provided for use on

county business, but they are not always available. See Exhibit “M” at p. 329.

Nevertheless, Mr. Bryant contends that it is discriminatory to require him to use

county vehicles, while African American employees of the Parks and Recreation

Department are not required the same because they are provided with a monthly

automobile stipend, which was denied to Mr. Bryant. Exhibit “M” at p. 328-329.

92.

Plaintiffs do not dispute that Marvin Billups is an African American Deputy

Director, or that he receives a car allowance. Mr. Billups is not required to do any

more driving than Mr. Bryant. Exhibit “M” at p. 328

93.

Plaintiffs do not dispute that Ms. Drew supervised Mr. Bryant, Mr. Drake,

and David Clarke, in her role as Director of the Parks and Recreation Department.

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Likewise, Mr. Drake supervised John Horn. Plaintiffs do not dispute that Mr.

Bryant, Mr. Drake, Mr. Clarke, and Mr. Horn are white. Plaintiffs dispute,

however, that Mr. Bryant, Mr. Drake, Mr. Clarke, and Mr. Horn took sides against

Ms. Drew. Mr. Clark, Mr. Bryant, Mr. Drake, Mr. Horn were concerned with the

management of the Parks and Recreation Department under Ms. Drew. Exhibit “L”

at p. 31; Exhibit “X” at 138-139. Specifically, they were concerned about what

was happening with their jobs. Exhibit “L” at p. 31. There is not testimony that

they took sides against her. Exhibit “L” at p. 31; Exhibit “X” at pp. 138-139.

94.

Plaintiff Bryant does not dispute that on May 10, 2004, at plaintiff

Bryant's request, Mr. Jones agreed to attend a staff meeting in Tucker the

following week, but that Mr. Jones failed to show-up. Exhibit “M” at pp. 455-

57. Instead, Mr. Jones’s secretary called after the staff meeting had already

started to inform Mr. Bryant that Mr. Jones had cancelled. id. at p. 457.

Plaintiff Bryant never told Mr. Jones that the issues he wanted to discuss related

to allegations of race discrimination or racial harassment, but did tell Jones’s

office that he was requesting a meeting with Mr. Jones to bring to his attention

to “issues of an egregious nature”. See id. at pp. 456-57; Bryant e-mail to CEO

Jones’s Secretary, Patricia Moore and Defendant Stogner requesting a meeting

with CEO Jones dated April 29, 2004, attached as Exhibit 44 only three (3)

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days after Mr. Stone purportedly completed his investigation of Mr. Bryant’s

EEO claims. Exhibit 41.

When Mr. Bryant met with CEO Jones, he told CEO Jones that he

needed to talk to him about issues of an egregious nature in the department,

but that he would rather CEO Jones hear about it from other people rather than

just himself. Exhibit “M” at p. 456. After CEO Jones failed to show up at the

meeting, Mr. Bryant called his office again to see when CEO Jones would be

available, but his call was never returned. Exhibit “M” at p. 457-458.

95.

Plaintiff Bryant filed an internal complaint of discrimination against Ms.

Drew on the basis of “harassment” and hostile work environment, which could

have been based upon his sex, age and race, until he learned from Mr. Lowe in the

spring of 2004 that he was targeted based on his race. Exhibit 23; Exhibit “A” at

¶9.

96.

Mr. Bryant does not dispute that Curtis LeBlanc serves as DeKalb

County’s Employee Relation/EEO Manager and that Mr. Leblanc was assigned

to investigate Mr. Bryant’s EEO Complaint, although Joe Stone also was

involved, as Mr. Stogner appointed Mr. Stone as the County’s “Acting EEO

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Officer” and Mr. Stone prepared a report on the investigation. Exhibit 42;

Exhibit 41.

Mr. LeBlanc did not take Mr. Bryant’s complaint seriously nor did he

fully investigate Mr. Bryant’s claims. Mr. LeBlanc failed to interview Mr. Lowe

whom Mr. Bryant listed as a potential witnesses. Exhibit 30. On October 1,

2003, Mr. Bryant sent Mr. LeBlanc an e-mail stating that Plaintiff Herb Lowe

had called him, saying he was concerned that information he could provide

would be used against him. Exhibit 22. Mr. Bryant asked Mr. LeBlanc whether

Mr. Lowe could be protected from possible retaliation and asked other questions

about the process that might help to assuage Mr. Lowe’s fears of retaliation, to

which Mr. LeBlanc never responded. See id. Mr. Lowe’s retaliation fears were

substantiated, as he was terminated shortly thereafter. Exhibit 31.

In addition, Plaintiff Drake asked to see his statement before it was

submitted to EEO, but Mr. LeBlanc never showed it to him despite agreeing to

do so. Exhibit “K” at pp. 324-25. In addition, it took Mr. LeBlanc at least nine (9)

months to interview only eight (8) people. Compare Exhibit 23 to Exhibit 30.

Yet, Mr. LeBlanc’s report is sparse; it only includes a one paragraph synopsis for

each witness interview, is completely devoid of any signed or verified statements

and contains no dates that interviews took place. See id. Mr. Clark, a Caucasian

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deputy director, testified that Mr. LeBlanc interviewed him a maximum of ten

minutes regarding Mr. Bryant’s claims. Exhibit “L” at p. 77.

If Mr. LeBlanc concluded that there was no factual basis for plaintiff

Bryant's complaint, he never communicated to Mr. Bryant that he had even

completed his investigation. Exhibit “M” at p. 410; Exhibit “H” at p. 36. Mr.

Bryant did not learn that Mr. LeBlanc’s report had even been completed until his

deposition in this case, which took place in December of 2004. Exhibit “M” at p.

410.

97.

Mr. Stone could not have reviewed Mr. LeBlanc's report and concluded

that it fully and adequately addressed Mr. Bryant's complaint and that no

further action was necessary given that he never notified Mr. Bryant that Mr.

LeBlanc had completed his investigation. See id. If Stone had reviewed the

content of Mr. LeBlanc’s report, he would have seen that each person

identified that there was a problem and four individuals indicated that Ms.

Drew may have been treating African-American employees differently than

their white counterparts. Exhibit 30. Mr. Stone himself has referred to white

employees in the Department of Water & Sewer as “crackers,” and apparently

believes this conduct is acceptable; as such, he cannot possibly objectively

review such reports of discrimination. Exhibit “R” at ¶ 6.

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Mr. Stogner may have received Mr. LeBlanc's report, but he is not qualified

to determine whether it fully and adequately addressed Mr. Bryant's complaint and

that no further action was necessary. Mr. Stogner is the mastermind behind

executing CEO Jones’s discrimination policy – he made the recommendations and

drafted Executive Order 1.5. See Defendants’ Undisputed Statement of Facts at ¶

19. Moreover, he told Ms. Kelley that she could “get in good” with Morris

Williams if she would hire Ms. Drew at a higher salary than a step above Mike

Bryant’s salary, even though Mr. Bryant had been with DeKalb County for three

(3) years. Exhibit “J” at p. 61. He also told Ms. Kelley that CEO Jones wanted to

showcase African-American Parks Department employees and did not want a

white person representing the Parks Department. id. at p. 168.

Plaintiff John Drake

98.

Plaintiff Drake does not dispute that he was employed in the Parks and

Recreation Department from 1975 to 1997, or that he was reallocated to the

position of Deputy Director of Recreation Parks and Cultural Affairs within a

year and half after becoming employed with DeKalb County. Exhibit “K” at

pp.42-43. Plaintiff also does not dispute that he was promoted to the position

of Assistant Director, Purchasing and Contracting Department in 1997, that he

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is white, or that Plaintiff Kelley was promoted to the position of Director of

Parks and Recreation.

99.

Mr. Drake disputes that on February 12, 2002, pursuant to Executive

Order 1-5, that he was transferred to the position of “Assistant Director, Parks

and Recreation Department” and that upon his transfer to the Parks and

Recreation Department, plaintiff Drake received an increase in salary and began

receiving a car allowance. Exhibit “B” at ¶¶ 7-8. In fact, the Executive Order

provided that Mr. Drake would be the Acting Assistant Director of the Parks

Department. Exhibit 2.

Mr. Drake did not receive any change in his compensation or his car

allowance until after March 16, 2002, over one month after he was demoted,

although he does not dispute that his benefits remained the same. See Exhibit

“B” at ¶¶7-8. He acknowledges that he negotiated a slight raise with

Defendant Stogner after he realized that he had no choice but to comply with

the transfer pursuant to his discussion with Beverly Gary, former Assistant

Director of Human Resources. See id. at ¶ 5; Exhibit “K” at pp. 141-43. Ms.

Gary told him he had no choice but to do so. Exhibit “K” at pp. 141-43. He

also told Stogner that he did not want to be transferred and that his plan was to

retire from Purchasing & Contracting. Exhibit “B” at ¶4.

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100.

Mr. Drake does not dispute that he is a good administrator with a high

level of administrative skills; however, he disputes that Mr. Stogner

recommended that he be transferred to Assistant Director, Parks and

Recreation Department on that basis. In fact, Mr. Stogner told Mr. Drake that

he was being transferred to “prop up” Ms. Drew. Exhibit “B” at ¶5; Exhibit

“K” at pp. 156-67. Mr. Stogner told Mr. Drake that he knew he was qualified

to be the Director, and in fact, thought that Mr. Drake should have been chosen

as the Director over Ms. Kelley in 1992. Exhibit “K” at pp. 152-53.

Nonetheless, Mr. Stogner told Drake he could not be considered for the

position. Exhibit “K” at pp. 154-55; Exhibit “B” at ¶6. Mr. Stogner said he

would have to inquire of CEO Vernon Jones, but that Jones would not return to

the office until the following Monday. See id. When Mr. Drake followed up

with Mr. Stogner on Monday, Mr. Stogner told him that he spoke with CEO

Jones who confirmed that Mr. Drake would not be considered because “too

many political commitments had been made.” See id.; Exhibit “B” at ¶6.

Mr. Drake disputes that Ms. Drew focuses her time on improving

recreation services, but does not dispute that his work allows her to spend her

time doing other things. Plaintiff Drake does not dispute that Defendant Jones

signed the Executive Order drafted by Defendant Stogner; however, Plaintiff

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Drake has no knowledge of whether Defendant Jones agreed with or accepted

Defendant Stogner’s recommendation.

101.

Mr. Drake disputes that he “oversees all administrative aspects” of the Parks

Department, as Ms. Drew stripped him of all of his duties and responsibilities in

that area. Exhibit “K” at pp. 231-232. Mr. Drake was effectively demoted to the

status of a “deputy director” responsible only for the revenue management and

support services division of the department, despite the fact that his job description

says that he oversees all deputy directors. Exhibit 28; Exhibit 17. Without

authority to oversee deputy directors, Mr. Drake is an Assistant Director in title

only, with the authority equivalent to a deputy director, which constitutes a

demotion for him.

102.

Mr. Drake does not dispute that Ms. Drew was likely not involved in the

decision to transfer him to Assistant Director; however, Joe Stone and Morris

Williams were involved in this decision. In February of 2002, after Mr.

Stogner informed Mr. Drake that he was being transferred to Parks

Department, Mr. Drake telephoned Beverly Gary, then-Assistant Director of

Human Resources, to discuss his options. Exhibit “K” at pp. 141-42. When

Mr. Drake told Ms. Gary about his meeting with Mr. Stogner, she remarked

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“Oh, are they back to that option ----they talked about that a while back but I

thought they decided to go in a different direction.” See id. As Ms. Gary

worked for Joe Stone, this indicated to Mr. Drake that at the very least, Joe

Stone was involved and perhaps Mr. Williams. id.

103.

Plaintiff Drake does not dispute that he did not apply for the Director

position in the Parks Department; however, he did not do so because Defendants

barred him from applying and Mr. Stogner told him he would not be considered.

Exhibit “K” at pp. 154-55; Exhibit “B” at ¶6. To ensure that an African-

American candidate was awarded the position, Defendants advertised the

Director position only from February 25, 2002 to March 8, 2002 as an “Intra-

Departmental Promotion – Only Parks & Recreation Department Employees

Eligible.” Exhibit 26. Only three (3) African-American candidates applied, but

only Ms. Drew was considered. Exhibit 24. Mr. Drake’s “transfer” to the Parks

Department was intentionally delayed until March 18, 2002, so that he would be

ineligible to apply. Exhibit 27. Even though Executive Order 1.5 was executed

February 12, 2005, it states that Mr. Drake will be “Acting” Assistant Director

rather than Assistant Director, which rendered Drake ineligible to apply for the

Director Position until he was made permanent Assistant Director, after the

application process was closed. Compare Exhibit 2, to Exhibit 27. In addition,

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Ms. Drew’s Personnel Action form promoting her to the Director position was

filled out on March 4, 2004, while applications for the position were still being

accepted and only five days after she applied. Exhibit 25; Exhibit “I” at p. 93.

Plaintiffs do not dispute that the Director position was posted only from

February 25, 2002 to March 8, 2002.

Next, Plaintiffs dispute that “at least” three individuals submitted

applications for the Director position. Defendants cite to Exhibit 16 attached

to their Statement of Undisputed Facts to support this statement. A closer look

at Exhibit 16 reveals that only exactly three (3) applications were received, but

that only one applicant, Ms. Drew was rated as qualified. Exhibit 24. Exhibit

24 also shows that Ms. Drew was never even interviewed by Defendant

Stogner or anyone else in the Jones administration because there is no

“interview date” given on Exhibit 24, and such date is required in filling out

these forms. Exhibit 24; Exhibit “B” at ¶ 23.

Exhibit 24 also shows that Defendants track the race of the applicants

and have a column titled “R/S,” which stands for “Race” and “Sex.” Code 2

represents African-American, as Ms. Drew is African-American, and Exhibit

24 shows that each of the three (3) applicants was African-American. Exhibit

24. Revealingly, one of the three applicants, Alphonso Phillips, was hired a

temporary courier one week after he applied for the Director position, despite

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Mr. Drake’s protests due to Mr. Phillip’s prior DUI. Exhibit “K” at pp. 210-11,

257-59, 300-01. See Ms. Drew’s e-mail to Morris Williams confirming his

hiring, attached hereto as Exhibit 30. Mr. Drake understood that Mr. Williams

had a relationship with Mr. Phillips of some sort. See Exhibit “K” at pp. 257-

59.

104.

Mr. Drake does not dispute that the minimum requirements for the

Director position were as follows:

Master's degree in Recreation, Physical Education, Public Administration, or other related field; six years of experience in supervision and management of recreation programs, park management, or a related field. An equivalent combination of education and experience may be considered in determining eligibility for this position.

Exhibit 26 (emphasis added). Mr. Drake acknowledges that he does not have a

master's degree, but disputes any inference that this makes him ineligible for

this position. In fact, the job description for the Assistant Director position

calls for the identical minimum requirements as the Director position. Exhibit

28.

105.

Mr. Drake does not dispute that he was previously Senior Office

Manager and Deputy Director of Administration in the Parks and Recreation

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Department or that Ms. Drew has a master's degree in recreation. Mr. Drake

served over twenty (20) years in Parks Department and five years (5) as an

Assistant Director. See paragraph 98 of Defendants’ Joint Statement of

Undisputed Facts. Ms. Drew has no experience as an Assistant Director, she

simply jumped from being a deputy director for 10 months to the Director of

the Parks Department. Exhibit 1; Drew’s Resume, attached hereto as 46.

106.

Mr. Drake disputes the statement that Mr. Stogner, Mr. Williams, Mr.

Stone, and Mr. Jones never told him that he could not apply for the position of

Director, Parks and Recreation Department. Mr. Stogner, after checking with

CEO Jones, told Mr. Drake that he could would not be considered because CEO

Jones had made other “political commitments” and he was barred from applying

because Defendants only allowed current employees of Parks Department to

apply and had already committed the position to Ms. Drew because of her race,

as discussed above in Paragraph 103.

107.

Joe Stone, Morris Williams and Vernon Jones were involved in the

decision to promote Ms. Drew to the position of Director of the Parks

Department, because the Parks Department was a top priority for the Jones

administration. Ms. Drew had only worked as a deputy director for Parks

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Department for eight months at the time of her promotion; therefore, one or

more of her supervisors had to have been involved in recommending her to Mr.

Stogner, since Mr. Stogner was not her supervisor; rather, Ms. Kelley had

been. Exhibit 1; Kelley’s Six Month Performance Review of Ms. Drew as a

deputy director, attached as Exhibit 47. Moreover, Mr. Williams was friendly

with Ms. Drew and wanted her to be the Director. See Exhibit “C” at ¶14.

108.

The position of Parks Department Director did not become a non-merit

system position, i.e. the position is not subject to Chapter 20 (Personnel) of the

DeKalb County Code until May 23, 2003, over a year after Ms. Drew was

promoted to this position instead of Mr. Drake. See Memorandum from Joe

Stone to Marilyn Drew taking away her merit status, attached as Exhibit 48;

Exhibit 26.

109.

Mr. Drake does not dispute that during the time he held the position of

Assistant Director, Purchasing and Contracting Department, that position was a

merit position or that the position of Assistant Director of the Parks Department

is also a merit position or that during Mr. Drake's employment with the county

he has always held a position that was covered by the merit system.

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110.

Mr. Drake does not know whether any defendant has ever directed any

racial slurs or racial epithets toward him or whether any defendant ever used

any racially offensive symbol or descriptions directed toward plaintiff Drake.

However, CEO Jones’ comments at a Friday morning staff meeting about

obtaining a darker administration and Ms. Drew’s written policy of

discrimination providing that management was going to make the Parks

Department “look like DeKalb County” were racially hostile remarks and

policies. Exhibit 5; Exhibit “K” at pp. 272-73.

111.

Plaintiffs dispute that Mr. Stogner, Mr. Stone, Mr. Williams, and Mr. Jones

were not involved in creating a hostile work environment with respect to Mr.

Drake. At the direction of Mr. Jones, Mr. Stogner Mr. Stone, Mr. Williams, and

Ms. Drew implemented and executed a plan to eliminate white employees and

managers from DeKalb County. Exhibit “C” at ¶¶ 8, 10-13; Exhibit “N” at pp. ;

338-339, 353-54, 470-471, 476-77, 514-515; Exhibit “J” at pp. 499-502; Exhibit

“K” at pp. 348-49, 256-57; compare Exhibit 7 and Exhibit 9 to Exhibit 8. The

hostile work environment which affected Mr. Drake was created as a result of this

illicit and discriminatory policy. See Exhibit “K” at p. 352.

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112.

Plaintiff Drake disputes that he did not know that he was being exposed to a

hostile work environment until May, 2004. Plaintiff Drake does not dispute that he

did not know he first learned of Defendants’ conspiracy to get rid of white

employees, including himself, in May, 2004. Exhibit “K” at p. 270.

113.

Plaintiff Drake never complained to Defendants that he had been

discriminated against or subjected to a racially hostile work environment; nor did

he file any complaint or grievance with DeKalb County's EEO office related to any

act or conduct of any defendant nor has never filed a charge of discrimination with

the Equal Employment Opportunity Commission or the State of Georgia related

to any act or conduct of any defendant or DeKalb County. Mr. Drake did not do

so, however, because even though he sensed that he was being discriminated

against and there was a concerted effort to marginalize and frustrate him to get him

to resign, until Mr. Lowe came forward, he could not prove or substantiate such

claims. See Exhibit “B” at ¶ 14. Also, Mr. Drake had brought it to Mr. Stogner’s

attention that a minority firm was involved in some financial improprieties related

to a DeKalb County contract for tee markers, and thereafter, was Mr. Stogner cut

him out of the loop on information on golf contracts. Exhibit “K” at pp. 163-65.

Mr. Drake felt this was in retaliation for implicating a minority firm. See id. Thus,

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Mr. Drake was fully aware of the retaliation that could occur if one complained

about any race related issues.

114.

Richard Stogner, Joe Stone, Morris Williams and Vernon Jones are not

Mr. Drake's supervisors in the Parks Department. However, Mr. Stogner, Mr.

Stone, Mr. Williams and Mr. Jones are involved in personnel decisions or

work assignments within the Parks Department. For example, Ms. Drew has

Morris Williams take over when she is absent. See e-mail from Ms. Drew to

John Drake, attached as Exhibit 49. In addition, Mr. Stogner told Ms. Kelley

that she could get in good with Mr. Williams if she would pay Ms. Drew a

higher starting salary than Mr. Bryant. See Exhibit “J” at p. 61. Mr. Stogner

was one of the Defendants who made the decision to transfer Mr. Drake to

Parks Department. Exhibit “F” at p. 40-41; Exhibit “K” at p. 139. Mr. Stone

was also involved in Mr. Drake’s demotion. Exhibit “K” at p. 138. Mr. Stone

also told Mr. Lowe that he would not hire or promote white employees in

DeKalb County. See Exhibit “C” at ¶10-11. Mr. Jones is involved in

employment decisions because he espouses a policy to create an organization

that “looks like DeKalb county” which is code for hiring African-Americans.

See Exhibit “J” at p. 51; compare Exhibit 7 and Exhibit 9 to Exhibit 8.

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115.

Plaintiffs do not dispute that Ms. Drew had the managerial discretion over

the Parks and Recreation Department. Plaintiffs, however, dispute that this

discretion permitted to make illicit decisions to discriminate and harass employees

because of their race.

116.

Plaintiff Drake does not dispute that his pay, title, and benefits remained the

same after the June 10, 2002 reorganization.

117.

Plaintiff Drake was never allowed to perform the duties of Assistant

Director. Exhibit “K” at pp. 248-249. Drake was "Assistant Director" in name

only. Exhibit “B” at ¶ 11. Over a period of time, Drew removed from Drake all

job responsibilities that are typically performed by an Assistant Director and began

a pattern of harassing Drake. Exhibit “K” at pp. 86, 181. Ms. Drew's organizational

chart reflects that Mr. Drake is organizationally on the same level as his fellow

deputy directors. Exhibit 29.

118.

Plaintiff Drake does not dispute that he had some responsibility as Assistant

Director, but denies that he has any significant responsibility. Drew removed from

Drake all job responsibilities that are typically performed by an Assistant Director

and began a pattern of harassing Drake. Exhibit “K” at pp. 86, 181. Drake was

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"Assistant Director" in name only. Exhibit “B” at ¶ 11. Ms. Drew's organizational

chart reflects that Mr. Drake is organizationally on the same level as his fellow

deputy directors. Exhibit 31. Over a period of time, Drew removed from Drake all

job responsibilities that are typically performed by an Assistant Director and began

a pattern of harassing Drake. Exhibit “K” at pp. 86, 181. For instance:

(a) While Drake's job description requires all Deputy Directors to report

directly to him, Drew told all Parks Department Deputy Directors not to report to

Drake and to instead report directly to Drew. Exhibit “K” at pp. 42, 51-52; Exhibit

“I” at p. 161, 207-208; Exhibit “L” at p. 69; Exhibit 28.

(b) Drew removed Drake as the Parks Department's representative to the

"bond program," which he had dealt with since 1986, and replaced him with an

African-American. Exhibit “K” at pp. 92-94.

(c) Drake was prohibited from participating in Deputy Director hiring

decisions, including those of Billups and Lowe. Exhibit “K” at p. 105.

(d) Drake was never permitted to participate in discussions regarding the

alleged reorganization of the Parks Department's Parks and Recreation Divisions.

Exhibit “K” at 108;

(e) Drew hired some persons that were supposed to report to Drake

without Drake's knowledge or input and refused to hire personnel that Drake

recommended. Exhibit “K” at pp. 110, 116.

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(f) Drew prohibited Drake from speaking to the media and permitted only

Lowe, Drake's alleged subordinate, to do so. Exhibit “K” at p. 176.

(g) Drew told Lowe, Drake's alleged subordinate, to run the Parks

Department instead of Drake when Drew was out of the office. Exhibit “K” at p.

217.

(h) Drew hired an African-American with convictions for drunk driving

and falsification of a paycheck over Drake's objections. Exhibit “K” at pp. 210-

211, 273.

(i) In 2004, when Drake informed Drew that he would use sick leave for

a “sinus infection”, Drew placed a memorandum in Drake's file stating that Drake

had left the office on an "unauthorized doctor's appointment" because instead of a

sinus infection, the doctor diagnosed Drake with “acute asthmatic bronchitis.”

Exhibit “I” at pp. 179-186.

(j) Drew excluded Drake from discussions regarding DeKalb County's

golf course management and revenue even though that was admittedly Drake's

responsibility, and even though she allowed Detrick Stanford, an African-

American, to attend discussions regarding this with Williams. Exhibit “I” at p. 116.

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119.

Ms. Drew reorganized her department is an effort to implement Defendant

Jones racially motivated employment policy. Exhibit “M” at p. 17; Exhibit “I” at p.

9; Exhibit “K” at p. 256; Exhibit “L” at p. 49; Exhibit 5.

120.

Plaintiffs dispute that Ms. Drew’s decision to reorganize her department was

motivated by: (1) her desire to manage the Parks and Recreation Department

effectively; and (2) business and organizational reasons. The reorganization was

undertaken to implement Defendant Jones racially motivated employment policy.

Exhibit “M” at p. 17; Exhibit “I” at p. 9; Exhibit “K” at p. 256; Exhibit “L” at p.

49; Exhibit 5.

121.

Plaintiffs dispute that Mr. Williams was not involved in the underlying acts

or personnel decisions concerning any Plaintiff in this case. Mr. Williams has

direct supervisory authority over the Parks and Recreation Department,

participated in all Parks and Recreation Department employee interviews. Exhibit

“E” at pp. 21, 32. In this capacity, Mr. Williams implemented Mr. Jones’

discriminatory employment policy. Exhibit “D” at ¶ 12; Exhibit “J” at p 167-168;

Exhibit “E” at pp. 60, 64.

Plaintiff Herbert Lowe

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122.

Mr. Lowe does not dispute that on September 16, 2002, he began his

employment with the DeKalb County Parks and Recreation Department as

Deputy Director, Strategic Management and Development or that he is

African-American. Mr. Lowe knew CEO Jones for twelve (12) years prior to

his employment. Exhibit “C” at ¶ 6. Mr. Lowe does not dispute that he

initially reported to Defendant Drew or that he did not report to Defendant

Williams. However, this does not diminish the fact that Defendant Drew and

Williams were instrumental in abolishing Mr. Lowe’s position with DeKalb

County. Exhibit “F” at p. 113.

123.

Plaintiffs dispute that there were any performance deficiencies regarding Mr.

Lowe’s job performance. Mr. Lowe never received a negative job appraisal or

performance review while employed with DeKalb County and his performance

was not an issue until after the initiation of this litigation. Exhibit “C” at ¶ 16.

Moreover, Mr. Lowe disputes that he ever aligned himself against Ms. Drew.

Contrary to Defendants’ representations, there is no testimony that anyone took

sides against Ms. Drew. Exhibit “L” at p. 31; Exhibit “X” at pp. 138-139.

124.

Plaintiffs do not dispute that Mr. Clark and Mr. Horn are not plaintiffs in this

case, but dispute that they were invited to join this lawsuit. Exhibit “L” at p. 40;

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Exhibit “X” at p. 81. Plaintiffs further dispute that Mr. Clark had doubts about

Mr. Lowe’s credibility. Mr. Clark testified that he has a great deal of respect for

Mr. Lowe. Exhibit “L” at p. 129. He stated that while he did not “want” to believe

Mr. Lowe, he had no reason not to believe Mr. Lowe. Exhibit “L” at p. 40. Mr.

Clark stated that when Mr. Lowe first disclosed Defendants’ discriminatory

scheme, he had questions because Lowe was supposed to be the “CEO’s friend,”

but that Lowe had no reason to lie. id at p. 129. In addition to stating that he

believed Mr. Lowe, Mr. Clark stated that while he could not say for sure that the

acts complained of were motivated by discrimination, he could give several

examples of a trail or pattern. id. at 128.

125.

Mr. Lowe does not dispute that he was asked to participate in a

conspiracy to rid the county of white managers. He also agrees that

Defendants Jones, Stone, Williams and Drew were involved in the conspiracy

and asked him to help them implement their scheme to get rid of white

managers.

126.

Plaintiff Lowe alleges that all defendants but Mr. Stogner stated that they

wanted to have a “darker administration” to reflect “the new DeKalb County.”

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128

Although Mr. Stogner did not make that statement, he was involved in

Defendants’ scheme to get ride of white employees in the Parks Department:

(a) by implementing Jones’s policies of discrimination by drafting

Executive Order 1.5 and recommending the transfers and demotions contained

therein, as discussed in paragraphs 17, 20, 22, 39 and 60;

(b) by carrying out CEO Jones mandate to highlight employees if they

were African-American and to replace Ms. Kelley with a Director of Parks

who was African-American, as discussed in paragraphs 18, 19, and 83.

(c) by double-filling Mr. Lowe’s position in retaliation for not

carrying out Mr. Jones’s directive to get ride of white employees in the Parks

Department by digging up dirt on them and assisting in frustrating them so that

they would quit, as discussed in paragraphs 135, 136, and 143

(d) by demoting John Drake by transferring him so that he could be

replaced by an African-American employee in Purchasing and Contracting

who would succeed him to become the Director of Purchasing and

Contracting, as discussed in paragraphs 99-106

(e) by demoting John Drake so that he could “prop up” Defendant

Drew because she was not competent to be the Director of Parks & Recreation,

but was in place due to her race; See Exhibit “B” at ¶5 and as discussed in

paragraphs 100 and 102-107;

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(f) by refusing to consider Mr. Drake for the Director position

because of his race, as discussed in paragraphs 103-106;

(g) by abolishing Mr. Lowe’s position as Director of Strategic

Management and Development in retaliation for Mr. Lowe’s refusal to go

along with the conspiracy, as discussed in paragraphs 143-144;

(h) by awarding Marvin Billups the title and functions of Director of

Recreation Services after the Director of Strategic Management and

Development position was abolished, which Mr. Billups occupied along with

Mr. Lowe. In other words, Mr. Billups went from double-filling Mr. Lowe’s

job to then replacing Mr. Bryant as Director of Recreation Services, as

discussed in paragraphs 54, 60 and 143.

127.

Mr. Lowe does not dispute that he refused to participate in the

conspiracy and that he took no actions to rid the county of white managers.

128.

Plaintiffs do not dispute that Defendants deny the existence of and any

participation in a conspiracy against Plaintiffs.

129.

From the very beginning of his employment and throughout his

employment, Mr. Lowe told defendants Jones, Williams, Stone and Drew that

he would not participate in their scheme. Exhibit “C” at ¶ 14; Exhibit 6. Mr.

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Lowe even complained to CEO Jones about the Parks Department because of

the discrimination. See id. Mr. Lowe does not dispute that he testified, among

other things, that he told these defendants, among other things, "Look, its fine

if that's your agenda; I just don't want to be part of it; I just don't."

130.

Plaintiff Lowe does contend that he was subjected to retaliation on the basis

of his race. Exhibit “C” at ¶ 24. Lowe was expected to participate in Defendants’

discrimination solely because he was African-American, and retaliated against

because he refused to do so. Exhibit “C” at ¶ 14.

131.

Plaintiffs dispute that Mr. Lowe did not make public statements to expose

the alleged conspiracy. He specifically testified that he spoke with Dennis Byron,

Lisa Marie Davis, and Carla Workman, as well as Mr. Jones, Mr. Stone, Ms. Drew

and Mr. Williams. Exhibit “N” at pp. 192, 197.

132.

Plaintiff Lowe does not dispute that he did not communicate his concerns to

the white managers that were being discriminated against until May of 2004.

133.

Mr. Lowe testified that Ms. Kelley was an example of a Parks Department

employee who was “terminated or eliminated” because she was white during the

time Mr. Lowe worked in the Parks Department. Exhibit “N” at pp. at 143.

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Regarding other Parks employees, the scheme was not to immediately fire white

management employees; rather, it was to “dig up dirt” on other white deputy

directors so that they could be reprimanded, put into dead end jobs, or frustrated so

that they would leave their positions voluntarily or eventually be fired. Exhibit “N”

at pp. 514; Exhibit “C” at ¶8.

134.

Lowe does not deny that he had disagreements from time to time with his

secretary Carol Underwood or that he and Plaintiff Bryant did not always get

along.

135.

Plaintiff Lowe was assigned to the Office of the Chief Executive on or

around May or June of 2003. See Mike Bryant e-mail to Ms. Drew dated May 30,

2003, attached as Exhibit 50. CEO Jones requested that Mr. Lowe be transferred

to the 6th floor Chief Executive Office suites because CEO Jones was bringing in

Marvin Billups to double-fill Mr. Lowe’s position in retaliation for Mr. Lowe’s

failure to cooperate with his discriminatory agenda. Exhibit 10. Richard Stogner

and Marilyn Drew were involved in the decision to move Mr. Lowe to the 6th

Floor because Defendants Drew and Stogner prepared and executed the paperwork

bringing in Mr. Billups to “double-fill” Mr. Lowe’s position. See Personnel

Action Requisition dated July 8, 2003, attached hereto as Exhibit 51.

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136.

Mr. Stone was involved in some capacity in Mr. Lowe’s move to the 6th

Floor because Human Resources generated the Personnel Requisition Form and the

Personnel Action Form that allowed Mr. Billups to double-fill Lowe’s position.

Exhibit 10; Personnel Action Form for Mr. Billups, attached as Exhibit “L.”

Additionally, Mr. Billups occupied Mr. Lowe’s office once Mr. Lowe was moved

out of the way to the 6th Floor. See Exhibit “C” at ¶ 15. Accordingly, the decision

to transfer Mr. Lowe to the 6th Floor could not have only been made by Mr.

Jones's Chief of Staff, Ann Kimbrough. After Mr. Lowe’s relocation, he reported

to Ms. Kimbrough, although he still performed his job with the Parks

Department in addition to assisting with special projects for CEO Jones.

Exhibit “C” at ¶ 15; Exhibit “X” at p. 12; Exhibit “L” at p. 115.

137.

Plaintiff Lowe does not dispute that he informed Mr. Jones that he would not

be a part of Defendant’s discriminatory policy and would support Ms. Drew and

Mr. William in their discriminatory actions within the Parks and Recreation

Department. Exhibit “N” at p. 395-396. Mr. Lowe further informed Mr. Jones that

he would resign if nothing was about the role that Defendants’ wanted Mr. Lowe to

play in the discriminatory scheme. id.

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138.

Plaintiff Lowe disputes that his transfer was due to a dispute between Mr.

Jones, Mr. Williams, and Ms. Drew regarding the Walter Wade Park. Exhibit “N”

at p. 391.

139.

Mr. Lowe accomplished a great deal while working in the Office of the

Chief Executive and during the time that he acted as liaison to the United Way,

despite the fact that he was transferred and loaned out to United Way in

retaliation for not cooperating with CEO Jones’s discriminatory scheme, as

discussed in paragraph 129.

140.

Mr. Lowe did not experience any loss in pay or benefits as a result of his

assignment to the Office of the Chief Executive, but he never had a six month

performance review or an annual review, which would have resulted in a pay

increase. Exhibit “N” at pp. 99-100; Exhibit “B” at ¶22.

141.

Plaintiffs do not dispute that as Executive Assistant, Mr. Stogner's duties

and responsibilities include serving as the chief policy advisor to Chief

Executive Officer Vernon Jones and implementing policy directives. Plaintiffs

do not dispute that Mr. Stogner also prepares budget recommendations to be

voted on by the DeKalb County Board of Commissioners.

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142.

Plaintiffs do not dispute that the 2004 budget recommendation drafted

by Mr. Stogner and submitted to the Board of Commissioners by Mr. Jones

recommended abolishing the position of Deputy Director, Strategic

Management and Development, Parks and Recreation Department.

143.

Plaintiffs do not dispute whether Mr. Stogner’s discussed whether there

was a continuing need for the position of Deputy Director, Strategic

Management and Development with Ms. Kimbrough. Plaintiffs dispute that

the position was not needed. In fact, until October of 2003, the position was

double-filled with two (2) employees and Mr. Billups had to be transferred out

of the position, so that it could be abolished. Exhibit 10. Only after Mr.

Billups was transferred out of the position, on December 3, 2004, CEO Jones

and Stogner recommended the position should be abolished as part of his

budget recommendations to the Board of Commissioners. Exhibit 13.

144.

Plaintiffs do not dispute that on January 27, 2004 the Board of

Commissioners adopted the 2004 budget or that the Board of Commissioners

did not appropriate funds for the position of Deputy Director, Strategic

Management and Development, Parks and Recreation Department. Thus,

effective February 13, 2004, the position was abolished. The reason the

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position was abolished, however, was not for lack of funding; rather, it was

abolished to retaliate against Mr. Lowe after Jones, Stogner, Stone and

Williams could not force him out by double-filling his position, by transferring

him up to the 6th Floor and by loaning him out to United Way, as discussed in

paragraphs 129, 135-136. Mr. Horn testified that he had never seen a job as

high as Lowe’s in the Park’s Department be abolished. See Horn Dep. p. 96.

145.

On February 3, 2004 Mr. Lowe was offered the position of Parks

Maintenance Coordinator at a salary level of $53,916.00 per year despite the fact

that he was making around $78,672.00 per year as a deputy director. Compare

Exhibit 16 to Exhibit 17; Exhibit “N” at p. 183. Mr. Lowe declined the

disingenuous offer and his employment with the County was terminated. Exhibit

“N” at p. 183.

146.

Mr. Lowe agrees that his position was eliminated as an act of retaliation by

Defendants and that on February 13, 2004, he was notified of his right to appeal

his termination through the DeKalb County Merit System. Plaintiff Lowe

appealed the abolishment of his position through the DeKalb County Merit

System. Exhibit 63.

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147.

Plaintiff Lowe was notified that a hearing would be held on March 25, 2004.

The hearing was for the purpose of determining whether Mr. Lowe's termination

was in fact due to abolishment of the position, but the Hearing Officer’s authority

was limited to “whether the dismissal was in fact due to lack of work, lack of

funds, lack of appropriation of funds, abolishment of the position or for other

material changes in the duties of the position or the organization of the department.

See Article IX Disciplinary Action and Appeals of the DeKalb County Personnel

Code, attached as Exhibit 52.

148.

Plaintiff Drake represented the Parks Department at the hearing because

Defendant Drew refused to appear and Mr. Stone insisted that a representative of

the Parks Department appear as opposed to Ms. Kimbrough, even though Mr.

Lowe was purportedly reporting to Ms. Kimbrough during that time period. See

Drew’s memorandum to Stone dated March 5, 2004, attached as Exhibit 53 and

Mr. Stone’s response dated March 10, 2004, attached as Exhibit 54 (stating

“whether or not [Drew] kn[e]w it, [Lowe] can only appeal the reduction of his job

due to lack of funding as defined under Sec. 20-195. . . .The matters to be

addressed have nothing to do with how he was assigned, for how many months or

who his supervisor was.”). Mr. Lowe did not attend the hearing because he knew

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137

it was be futile. Exhibit “C” at ¶ 19. Furthermore, the appropriate County

witnesses would not have appeared because Ms. Drew refused, and DeKalb

County’s Hearing Officer and Merit System Council Procedures state that the

Human Resources Director cannot compel the attendance of the requested

witnesses. See Hearing Officer and Merit Council Procedures, attached as Exhibit

55.

149.

As Mr. Drake was not Mr. Lowe’s supervisor and was only sent because

Defendant Drew refused, the hearing officer could not have possibly considered all

of the relevant testimony and documentary evidence to meaningfully consider Mr.

Lowe’s appeal. Moreover, Mr. Stogner’s letter to Lowe regarding his right to a

hearing quoted this limitation of the hearing officer’s authority. Exhibit 31. Thus,

the hearing officer did not consider why CEO Jones or Stogner recommended that

it be abolished. In fact, no code section in the DeKalb County Personnel Code

provides a hearing officer with a right of review for questions of retaliation.

Exhibit 55.

Plaintiff Lowe does not dispute that the Hearing Officer found that "in fact,

the DeKalb County Board of Commissioners voted not to appropriate funding for

the position of Deputy Director, Strategic Management and Development, Parks

and Recreation Department." Exhibit 14. This finding is not inconsistent with Mr.

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Lowe’s retaliation claim because it does not address why the funding was

removed. Mr. Lowe did not appeal the Hearing Officer's decision and it became

the final administrative decision.

Interestingly, shortly before Mr. Lowe’s hearing in late 2003, Ms. Drew

told Parks Department management employees not to voluntarily appear at

hearings challenging employment decisions when requested to do so by Parks

Department employees. Exhibit “A” at ¶20.

150.

Joe Stone, Marilyn Drew and Morris Williams were involved in the

decision to recommend abolishment of the position of Deputy Director,

Strategic Management and Development, Parks and Recreation Department.

Mr. Stogner testified that he abolished the position based on input from Ms.

Kimbrough and Ms. Drew. Exhibit “F” at p. 113. Furthermore, Mr. Stone, as

Director of Human Resources, along with Ms. Drew would have had to have

decided where to transfer Mr. Billups before the position could be eliminated.

Human Resources supplied the paperwork for the transfer and approved Mr.

Billups transfer into the position Mr. Bryant was supposed to be performing.

Exhibit 10. As Mr. Williams was responsible for the reorganization of the Parks

Department pursuant to Executive Order 1.5, it follows that he would have had

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139

input into the decision and or approved of the abolishment of the position.

Exhibit 2.

151.

Plaintiffs do not dispute when Ms. Drew or Mr. Williams learned that Mr.

Lowe’s was not funded by the 2004 budget. Plaintiffs dispute, however, that Mr.

Lowe’s position was abolished for lack of funding. Rather, Mr. Lowe’s position

was abolished in retaliation after Jones, Stogner, Stone and Williams could not

force Mr. Lowe out by double-filling his position, by transferring him up to the 6th

Floor and by loaning him out to United Way, as discussed in paragraphs 129, 135-

136.

152.

Plaintiff Lowe does not dispute that he did not receive a performance review

from Ms. Drew in 2003. In fact, the only person that did receive a performance

review from Ms. Drew in 2003 was Marvin Billups, an African American. Exhibit

“I” at p. 123-124. The other performance plans that were submitted to Ms. Drew

were never completed by Ms. Drew. id. at p. 125-126.

153.

Plaintiff Lowe disputes that his performance was deficient. Mr. Lowe never

received a negative job appraisal or performance review while employed with

DeKalb County and his performance was not an issue until after the initiation of

this litigation. Exhibit “C” at ¶ 16.

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140

154.

Plaintiffs do not dispute that Mr. Jones, Mr. Williams, or Mr. Stogner were

not responsible for providing Mr. Lowe’s 2003 performance review.

Respectfully submitted this day of , 2006.

Michael J. Bowers

Georgia Bar No. 071650 J. Tom Morgan Georgia Bar No. 522675 Christopher S. Anulewicz Georgia Bar No. 020914 James L. Hollis Georgia Bar No. 930998 BALCH & BINGHAM LLP 30 Allen Plaza, Suite 700 30 Ivan Allen Jr. Blvd. N.W. Atlanta, GA 30308 Telephone: (404) 261-6020 Facsimile: (404) 261-3656 Attorneys for Plaintiffs

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- 1 -

CERTIFICATE OF COUNSEL REGARDING FONT SIZE

Counsel certifies that the foregoing has been prepared using Times New

Roman font size 14 in accordance with Local Rules 5.1(B)(3) and 7.1(D).

This 14th day of July, 2006. /s/Christopher S. Anulewicz Georgia Bar No. 020914

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72389.3

CERTIFICATE OF SERVICE

I hereby certify that on July 14, 2006, I electronically filed PLAINTIFFS’

L.R. 56.1(B)(2) STATEMENT OF MATERIAL FACTS AND RESPONSE

TO MOVANTS’ STATEMENT OF MATERIAL FACTS with the Clerk of

Court using the CM/ECF system which will automatically send e-mail notification

to the following attorneys of record:

Kerri Anne Gildow [email protected] Elizabeth Penn Payne [email protected] Robert B. Remar [email protected] Nancy Fullerton Reynolds [email protected] Scott R. Sausser [email protected] [email protected] Brent L. Wilson [email protected]

/s/Christopher S. Anulewicz Georgia Bar No. 020914 BALCH & BINGHAM, LLP 30 Allen Plaza, Suite 700 30 Ivan Allen Jr. Boulevard, NW Atlanta, GA 30308 Telephone: (404) 261-6020 Facsimile: (404) 261-3656 Attorneys for Plaintiffs

Case 1:04-cv-02462-WSD Document 273 Filed 07/14/2006 Page 145 of 145