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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA, SOUTHERN DIVISION PAUL R. SMITH and WILLIAM J. GLISSON, * * * Plaintiffs, * * vs. * * CITY OF MOBILE, STEPHEN A. DEAN, * individually and in his official capacity, * and SAMUEL L. JONES, individually * and in his official capacity, MOBILE * COUNTY PERSONNEL BOARD, * * Defendants. *

CASE NUMBER: 06-93

SECOND AMENDED COMPLAINT Come now Paul R. Smith and William J. Glisson, by and through their undersigned attorneys, and amend their Complaint against the City of Mobile, Stephen A. Dean, Samuel L. Jones and Mobile County Personnel Board as follows: I. Preliminary Statement 1. This action seeks declaratory, injunctive and equitable relief; compensatory and

punitive damages; and costs and attorney fees for employment discrimination suffered by Plaintiffs as a result of their employment with the City of Mobile. II. Jurisdiction 2. This action arises under the FourteenthAmendment to the United States Constitution,

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq, 42 U.S.C. §1983 and 42 U.S.C. §1981, as well as Alabama’s Age Discrimination in Employment Act, §25-1-20 et seq Ala. Code (1975)and 29 U.S.C. § 626(b), of the Age Discrimination Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. (“ADEA”). Plaintiffs timely filed Charges of Discrimination with

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the Equal Employment Opportunity Commission, and this action was filed less than 90 days from their receipt of their Notice of Suit Rights, copies of which are attached hereto as Exhibit “A” and Exhibit “B”. This action further arises under Uniform Services Employment and Re-employment Rights Act of 1994 (“USERRA”) 38 U.S.C. § 4301 et seq 3. Jurisdiction is invoked pursuant to 28 U.S.C. §§1331,1343, 1367(a). III. Venue 4. This action properly lies in the Southern District of Alabama, Southern Division,

pursuant to 28 U.S.C. §1391(b) as the claim arose in this judicial district and the Defendants reside in Mobile County, Alabama. IV. Parties 5. Plaintiffs are Caucasian citizens and residents of the United States, who at all times

relevant were employed by the City of Mobile. 6. Defendant City of Mobile (“the City”) is a municipal corporation organized and

existing under the laws of the State of Alabama and is an employer as defined by §25-1-20 Ala. Code (1975) and is subject to 42 U.S.C. §§1981 and 1983. 7. Defendant Stephen A. Dean (“Dean”) is a resident of Mobile County who at all times

relevant hereto was employed under contract by the City as its Fire Chief. As such, Dean is the highest ranked authority in the City’s Fire Rescue Department and he thereby exercises authority and discretion over the Department’s personnel function including its hiring, promotions and disciplinary actions. Plaintiffs bring this action against Dean in his official and individual capacities. 8. Defendant Samuel L. Jones (“Mayor Jones”) is a resident of Mobile County who, at

the time of the promotion at issue in this case, served as the Mayor of the City. Mayor Jones is the -2-

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top executive of the City and as such exercises policy making authority and discretion over the City’s personnel function including its hiring, promotion and disciplinary actions. Plaintiffs bring this action against Mayor Jones in his official and individual capacities. 9. The Mobile County Personnel Board (“Personnel Board”) is a board that was created

by the State of Alabama and which exists under Alabama law. The Personnel Board is subject to suit under 42 U.S.C. §1981 and §1983 and is included for injunctive relief. 10. state law. V. Facts 11. Plaintiff Paul R. Smith (“Smith”) has been employed with the City in its Fire Rescue At all times relevant hereto Defendants were acting under the color and authority of

Department (“Department”) for nineteen years. During that period he performed various jobs satisfactorily and was promoted within the organization until he reached the level of Fire Service District Chief. Smith has held that position for the last two years 12. Plaintiff William J. Glisson (“Glisson”) is fifty-six years old and has been employed

with the City in its Fire Rescue Department for thirty-one years. During that period he performed various jobs satisfactorily and was promoted within the organization until he reached the level of Fire Service District Chief. Glisson has held that position for more than nine years. 13. In July of 2005, the Department posted a promotional announcement for the position

of Fire Service Deputy Chief. Deputy Chief is the next position in the line of progression from District Chief and is the third highest position within the department. 14. At the time of this announcement, the Department had three Deputy Chief positions,

one of which became vacant and was the subject of the above described announcement. In order to -3-

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carry out its racially motivated plan, however, Defendants went to the extraordinary length of creating an additional Deputy Chief position. Defendants made both of the unlawful decisions at issue herein from the employment register created from the initial announcement. 15. Each Plaintiff applied for the promotion and, after taking the requisite job-related test,

the applicants were ranked in descending order of qualification by the Personnel Board. Smith and Glisson were ranked first and second respectively. In spite of Plaintiffs being declared the two most qualified applicants by the Personnel Board, the newly created position was awarded to Mark A. Hansberry, a forty-one-year-old African-American who was ranked lower (3rd) on the list. The other position was awarded to Richard F. Brannon who is forty-eight years old and who was ranked fourth. 16. In the years prior to posting the above described announcement, Defendants had

undertaken to alter and amend the hiring process so as to enable the City to preferentially promote African-Americans over its Caucasian employees. The changes included the following: a. b. Having the “Rule of 3" changed to the “Rule of 10". Reducing the minimum qualifications for numerous jobs including the Deputy Chief position. Defendants have also employed and applied the City’s personnel policies in a racially

17.

discriminatory manner. African-American employees are treated more favorably than Caucasians and have been shown leniency in situations which, under the Department’s policies, called for severe punishment. 18. Defendants have also engaged in a pattern and practice of promoting African-

Americans to positions of authority based on their race. Mayor Jones’ predecessor and certain City Council members have exerted pressure on Dean to promote minority candidates regardless of their

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qualifications based on their race or sex. Such actions by the Council members violate state law, and promoting on the basis of an applicants race violates the City’s own Affirmative Action Policy. 19. Despite each Defendant’s knowledge of the unlawful nature of such behavior, they

continue to pursue this racially discriminatory course of action. In fact, this unlawful behavior continues in spite of the fact that two different juries have, within the last two years, found that the City has unlawfully discriminated against Caucasian employees in Fire Department promotions and rendered significant money judgments against the City. 20. The above described actions, individually and collectively, rise to the level of an

official policy, custom or practice of race discrimination by the City of Mobile resulting in the deprivation of each Plaintiff’s clearly established federally protected rights. VI. Cause of Action COUNT ONE 21. 22. Plaintiffs incorporate each and every paragraph above as if fully set out herein. These racially motivated actions including the discriminatory administration of the

promotional process and the resulting denial of the subject promotion, all of which were undertaken under the color of state law, deprived each Plaintiff of their right to equal employment opportunity and equal protection under the law in violation of the Fourteenth Amendment to the Constitution of the United States, as well as Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq, 42 U.S.C. §1983 and 42 U.S.C. §1981. 23. Plaintiffs have suffered economic damages as well as emotional distress resulting

from this discriminatory treatment. 24. Defendants’ discriminatory actions were carried out with malice or reckless -5-

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indifference to the Plaintiff’s federally protected rights and accordingly, Plaintiffs seek punitive damages against Mayor Jones and Dean. COUNT TWO 25. 26. Plaintiffs incorporate each and every paragraph above as if fully set out herein. In failing to promote Glisson, Defendants discriminated against Glisson based on his

age in violation of Alabama’s Age Discrimination in Employment Act, §25-1-20 et seq Ala. Code (1975) and the ADEA, as amended, 29 U.S.C. § 621 et seq. 27. Plaintiff Glisson has suffered economic damages as well as emotional distress

resulting from this discriminatory treatment. COUNT THREE 28. 29. Plaintiffs incorporate each and every paragraph above as if fully set out herein. In addition to serving as Fire Service District Chief, Smith was, at all times relevant

hereto, a member of the Southwest Alabama Disaster Medical Assistance Team, AL-3 (“DMAT”). This team is part of the National Disaster Medical System (“NDMS”) of the Federal Emergency Management Agency (“FEMA”). This team responds to disasters and as a member of that team Smith specifically provides medical support for FEMA’s disaster relief efforts. As a member of the DMAT team, Smith is an “intermittent disaster-response appointee” as defined by USERRA as amended by Title 42 U.S.C. § 300hh-11(e). Smith’s service as an “intermittent disaster-response appointee”, as described above, is legally deemed to be “service in the uniform services”, for the purposes of USERRA. As an intermittent disaster-response appointee, Smith is entitled to all the rights, privileges and protections of USERRA. 30. Smith was denied the above described promotion, as well as one to Assistant Chief

that was made at the same time, as a result of his activation and service with his DMAT team in

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response to one or more hurricanes within the last three years. 32. The denial of the above described promotions amount to unlawful discrimination

against Plaintiff in direct violation of 38 U.S.C. §§ 4311(a) and 4311(b). 33. Because Defendants’ actions were willful, Smith is entitled to liquidated damages.

VII. Prayer for Relief WHEREFORE, Plaintiffs hereby demand judgment against Defendants and pray that this Court: a. b. c. d. e. Declare Defendants’ conduct to be in violation of each plaintiff’s rights; Enjoin Defendants from engaging in such conduct in the future; Promote each plaintiff to the position of Deputy Chief; Award each plaintiff front pay in lieu of promotion; Award each plaintiff all pay and benefits lost as a result of the discriminatory actions taken by Defendants; f. Award each plaintiff compensatory damages including damages for mental pain and/or emotional distress; g. Award each plaintiff punitive damages against Defendants Steven A. Dean and Samuel L. Jones; h. i. Award each plaintiff costs and attorneys’ fees; Award each plaintiff any and all equitable relief to which he is entitled; -7-

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j.

Grant such other relief as the Court may deem as just and proper.

PLAINTIFFS RESPECTFULLY DEMANDS TRIAL BY JURY OF ALL CLAIMS ASSERTED HEREIN.

s/Richard W. Fuquay RICHARD W. FUQUAY (FUQUR6214) Attorney for Plaintiff Post Office Box 40633 Mobile, Alabama 36640 Telephone: (251) 433-7177 Fax Number: (251) 433-7172

s/Edward L.D. Smith EDWARD L.D. SMITH (SMITE0296) Attorney for Plaintiff Post Office Box 927 Mobile, Alabama 36601-0927 Telephone: (251) 431-9000

CERTIFICATE OF SERVICE I hereby certify that on November 13, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: James D. Brandyburg, Lawrence M. Wettermark, Andrew J. Rutens and Erin B. Fleming.

s/Richard W. Fuquay RICHARD W. FUQUAY (FUQUR6214)

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