JUN 25 2012

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A £}Ci-ML~

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PLAINTIFPS RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION Michael Cooper bas brought this action supported by copious evidence, including the testimony of white coworkers who heard and saw him called "stupid nigger" and "dumb fucking nigger" and "my nigger" and numerous other racist taunts by his white supervisor, the owner of M&S Auto, Defendant, Michael Bell. Defendants allowed and encouraged - even paid - other M&S employees to racially harass Cooper. One of those harassers, Patrick Pearson, repented of

his actions and, refusing to lie even at the risk of his job, has testified to his own harassment of Plaintiff, including that he was paid to harass Plaintiff. now admit were false affidavits supporting While some employees signed what they other employees have forthrightly


testified to the disgusting stew of racism and racial hatred in which Plaintiff was forced to work in order to care for his daughter, who suffers from sickle cell anemia. If there is any person in the world who should not have had to refight the civil rights struggles of the 1950's and 1960's, it is Michael Cooper. Cooper, a civil rights hero. His grandmother was Ann Nixon


picturing Mr. Cooper in Ms. Cooper's home after her death). Ann Cooper lived and the election of the first African-

through the Jim Crow era, the Civil Rights movement, American President.

She was honored by the President of the United States for her struggles to That her

overcome discrimination.

grandson has had to suffer the outrageous conduct at issue in this case is an appalling irony. Defendants were not even content just to fire Plaintiff. Once they learned that he had frivolously

been named as a potential witness in another lawsuit in federal court, Defendants

sought to have him named as a Defendant in that case, for no reason other than to intimidate him and punish him for testifying against them. This retaliatory motive was admitted by Defendant

Bell, in a threatening voice mail message he left for Mr. Pearson, telling him he was going to "do [Pearson J just like [he] done Cooper," that he had "millions of dollars in the bank" and that he would "get you too, buddy, I'll get you too." Plaintiff's claims, as stated in the Second Amended Complaint, are as follows: Count One: Race Discrimination Both Defendants (Termination) In Violation Of 42 U.S .C. § 1981 Against

Count Two: Race Discrimination In Violation Of Both Defendants (Hostile Work Environment)

42 U .S.Co § 1981 Against

Count Three: Retaliation For Opposing Race Discrimination In Violation Of 42 U.S .C. § 1981 Against Both Defendants (Hostile Work Environment) Count Four: Retaliation For Opposing Race Discrimination U.S.C. § 1981 Against Both Defendants (Termination) Count Five: Race Discrimination In Violation Of Against Defendant M & S (Termination) In Violation Of 42

42 U.S.c. § 2000e (Title Vii)

Count Six: Race Discrimination In Violation Of 42 U.S.C. § 2000e (Title Vii) Against Defendant M & S (Hostile Work Environment)


Count Seven: Retaliation For Opposing Race Discrimination In Violation Of 42 U.S.C. § 2000e (Title Vii) Against Defendant M & S (Hostile Work Environment) Count Eight: Retaliation For Opposing Race Discrimination In Violation Of 42 U.S.C. § 2000e (Title Vii) Against Defendant M & S (Termination) Count Nine: Retaliation For Participation In A Proceeding Under The Fair Labor Standards Act, In Violation Of29 U.S.C. § 215 Against Both Defendants Count Ten: Conspiracy Defendants Count Eleven: Defendants Neglect In Violation Of 42 U .S.C. § 1985 Against Both

To Prevent

Under 42 U.s.C.

§ 1986 Against


Count Twelve: Violation Defendant M & S Count Thirteen: Defendants Intentional

Of The Americans

With Disabilities

Act Against


Of Emotional




Count Fourteen: Negligence Against Both Defendants Defendants However, showing Motion for Summary Judgment Memorandum gives a passing reference to all claims. make no As such,


of Law does not mention - and Defendants

at all regarding

~" Counts Three, Four, Seven, Eight, Ten or Eleven.

Defendants have failed to meet their initial burden on summary judgment to show an absence of dispute of material fact and, accordingly, Counts. No response is required of Plaintiff. summary judgment may not be granted on these

However, Plaintiff will set forth below the law and are not entitled to

facts giving rise to the claims in question and showing that Defendants judgment on any claim.


STATEMENT OF FACTS Plaintiff's Social Security Disability Payments
In Defendants' Motion for Summary Judgment, Defendants imply Plaintiff was either


guilty of fraud for or rendered unqualified by having applied for and receiving social security disability benefits. That is totally untrue. (Cooper Aff. ,-) 1). In 2004 or 2005, Plaintiff's foot

was severely burned with scalding water. surgeries, including skin grafts. not bend properly.

(Cooper Aff. ~ l).His injuries resulted in seven

(Cooper Aff. ~ 1). His foot is permanently damaged and does

(Cooper Aff. ~ 1).

Based on that injury, in late 2006, Social Security granted Plaintiff a total and permanent disability. (Cooper Aff. ~ 1). Plaintiff received social security disability benefits from

approximately December, 2006 until 2008. (Cooper Aff ~ 1). When Plaintiff was able to work again and became employed, he informed Social

Security of this fact and voluntarily paid back the benefits he received. (Cooper Aff. ~ 1; Cooper Depo. pp. 29-34). Plaintiff was told by Social Security that he had a "ticket to work", which (Cooper Aff. ~ 1). If

meant that he could receive benefits and work for as long as nine months.

he was able to keep the job beyond nine months, he would have to pay the benefits he received over those nine months back. (Cooper Aff. ,-) I). Plaintiff always kept Social Security informed about his work status. (Cooper Aff.


That is exactly what Plaintiff did. (Cooper Aff.

-u 1).

He never lied to Social Security about his health or medical condition and never concealed the fact that he got a job. (Cooper Aff.

-u 1). Plaintiff never misrepresented his health or job status to

Social Security and always acted in good faith with respect to his disability claim. (Cooper Aff. ~ 1). Social Security never accused him of fraud or alleged that he did anything improper. Aff. fll). Plaintiff's Initial Hiring And Duties At M&S Auto Parts Inc. ("M&S") and (Cooper

Plaintiff was hired by Defendants M&S Auto Parts of Fayetteville,


Michael Bell ("Bell") in January, 2007 to sell cars.

(Cooper Aff. ~ 4). Plaintiff had previous

experience as a car salesman. (Cooper Aff ~ 4). Plaintiff understood that this job did not require strenuous physical labor and he could perform this job even with his bad foot. (Cooper Aff. ,-r 4). Plaintiff expressly told Defendant Bell when he took the job that he was disabled, had medical issues and had problems doing heavy physical work. (Cooper Aff. ~ 4; Cooper Depo. p. 46). He was told that the job didn't require strenuous labor. (Cooper Aff ~ 4). He also told Bell that he was on Social Security disability at that time. (Cooper Aff. ,-r 4; Cooper Depo. p. 46). When Plaintiff was first hired, his rate of pay and the benefits he would receive, such as vacation and health insurance were not discussed. (Cooper Aff ,-r 5). However, he assumed that

he would receive the same benefits as other employees received, whatever they were. (Cooper AfC ~ 5). When Plaintiff started working two days later, Mr. Bell told him that he would be paid $500 per week plus $100 commission for each car he sold. (Cooper AfC ~ 5; Cooper Depo. p. 42). Plaintiff was to work six days per week (Monday through Saturday), from 7:30 a.m, until he was finished for the day, which was often around 7:00 p.m, shorter hours on Saturday as the car lot closed earlier on Saturday. (Cooper Aft'. ~ 5). He worked (Cooper Aff ~ 5). He was to

report to car lot manager Brenda Taylor and Mr. Bell. (Cooper Aff. ~ 5). His duties were to sell cars and make minor repairs, such as headlight replacement, to get the cars ready for sale.

(Cooper Aff. ~ 5). He worked as a full time car salesman until April, 2007. (Cooper Aff. ~ 5). Plaintiff Is Made Operations Manager In April, 2007, Mr. Bell told Plaintiff that he was making Plaintiff "operations manager" immediately "morning and was going to announce it to the whole staff that morning at the scheduled (Cooper Aff.



6). There was no previous operations

manager and the

position was just created by Mr. Bell. (Cooper Aff. ~ 6; Cooper Depo. p, 48). Plaintiff told Mr.


Bell that he didn't want that job, but Mr. Bell told him that he had to take that position if he wanted to have a job. (Cooper Aff. -rI 6). Mr. Bell told Plaintiff he would be paid $1000 per week, and Plaintiff told him it was not enough money. (Cooper Aff. -rI 6). In Plaintiffs mind, this would be a large increase in duties and in some weeks, a

reduction in pay (because of the loss of commission income) from what he was earning selling cars. (Cooper Aff.

'1 6). At that

point in the discussion, other employees were coming into the

room for the morning meeting and Mr. Bell announced to everyone that Plaintiff was the new operations manager. (Cooper Aff. -rI 6; Cooper Depo. p. 49). As operations manager, Plaintiff had many more duties than he did as a salesman.

(Cooper Aff. -rI 7). Plaintiff supervised the repair shop and had to make sure all repairs were made to cars before putting them on the lot and had to handle any problem that arose. (Cooper Aff. -rI 7). At times, Plaintiff would also sell cars when needed, but that wasn't a big part of his job as operations manager, as there were other sales people. (Cooper Aff. -,r 7). Plaintiff did whatever needed to be done, including the jobs of employees who were out that day. (Cooper Aff. -rI 7). Plaintiff worked approximately 65-70 hours per week. (Cooper Aff. -rI 7).

In order to "get the bugs out", Plaintiff would test drive the cars before M&S sold them.
(Cooper Aff. -rlS). Plaintiff was permitted to drive cars home with him, as this would help him identify problems with the cars. (Cooper Aff. -rI 8). When the car was repaired, it would be put on the lot to be sold and Plaintiff would move on the next car. (Cooper Aff. -rI 8). There was no other employee at M&S who had a reason to test drive the cars and Plaintiff does not believe any other employees were permitted to take cars home. (Cooper Aff. -rI 8; Cooper Depo. pp. 68-69). The Reporting Structure At M&S Mr. Bell was the owner of tile company and ultimately the boss. When he wasn't there,


Clay McCart, the manager and main sales person of the parts department, was the "go to" guy. (Cooper Aff. ~ 9). Plaintiff understood that McCart could give him orders and that he was to follow them. (Cooper Aff. ~ 9). McCart had the authority to fire Cooper. 182, Ex. 15, Interrogatory Response No. 10). Plaintiff worked as operations manager for about one year. (Cooper Aff. ~ 10). After (Bell Depo., pp. 18 1-

that, he was mostly working as a parts delivery driver or picking up scrap cars with the tow truck, but did some of the same tasks he did as operations However, his title didn't manager. (Cooper Aff. ~ 10). manager until he was

change and he held the title of operations

terminated on August 22, 2008. (Cooper Aff. ~ [0). Defendants Had No Anti-Discrimination Policies Or Procedures For Complaining About Discrimination In Place At All When Plaintiff worked for Defendants, there were no anti-discrimination policies or

handbook. (Thompson Depo. p. 180). At the time Plaintiff worked there, there was no employee handbook, no employee policies and no HR policies. (Bell Depo. p. 34; Thompson Depo. p. 180). There were no policies which prohibited discrimination against employees. (Bell Depo. p. 35). As Bell testified, "I had no policies at all. Show up and go to work, try to make a living." (Bell. Depo. p. 35). Further, new employees did not go through any new employee orientation. (Bell Depo. p. 34). M&S also had no procedure that was communicated reporting complaints of discrimination or harassment. (Bell Depo. p. 35). Plaintiff Was Subjected To A Hostile Work Environment Based On Race During Plaintiffs employment, he was tormented constantly by white employees Clay Some of the to employees for

McCart, Pat Pearson and Mr. Bell. (Cooper Aff. ~ ] 3; Cooper Depo. p. 115).

torment and harassment was explicitly about his race, such as being called "nigger" or "DAN", which was an acronym for "dumb ass nigger". (Cooper Aff. ~ 13).

McCart called Plaintiff

"DAN" frequently and referred to him as "DAN" to other employees. (Cooper Aff. ~ 13; Cooper Depo. pp, 115-6). McCart did not refer to anyone else as "DAN". (Cooper Aff. ~ l3; Cooper Depo. p. I 16). Plaintiff also heard McCart refer to him as "black daddy" several times. (Cooper Aff ~ 13; Cooper Depo. p. 122). He would tell white employee Roger Cooper, if Roger asked for anything to "go see your black daddy". (Cooper Aff. ~ 13; Cooper Depo. p. 122). Employee Pat Pearson also heard McCart refer to Plaintiff as a "stupid, dumb nigger" many times. (Pearson Aff. ~ 6). On one occasion, McCart punched a dent in a car door that Plaintiff was standing next to and then punched the mirror off. (Cooper Aff.


McCart yelled at him that if Plaintiff said (Cooper Aff. ~

one more word they were going step out back and fight, but Plaintiff refused.

15). Plaintiff was frightened as well, as McCart carries a gun to work every day and joked about shooting people. (Cooper Aff ~ 15; Pearson Aff. ~ 9; Thompson Depo. p. 49; McCart Depo. p. 21). Plaintiff could see that McCart had his gun on him at the time. (Cooper Aff. ~ 15). McCart physically chased Plaintiff out of the building, while Mr. Thompson pleaded with McCart not to hurt him. (Cooper Aff. ~ 15; Cooper Depo. pp. 190-1). This incident was witnessed and testified to by Pearson. (Pearson Aff. ~ 8). McCart also treated minority customers very rudely but didn't treat white customers badly. (Cooper Aff. ~ 16; Cooper Depo. p. 165-6). McCart told Plaintiff several times black

people were stupid when referring to black customers. (Cooper Aff. ~ 16). White employee John D' Ambra also witnessed McCart make a racist statement about black people. (D'Arnbra Aff. ~ 14). On one occasion, McCart was talking to a black customer (D' Ambra Aff. ~ 14). D' Ambra heard McCart tell him

who had a complaint about something.

"you niggers are all the same - always trying to work the system" or words to that effect.


(D'Ambra Aff ~ 14). Pat Pearson was a white employee who openly discriminated race, and freely admits doing so. (Pearson Aff. against Plaintiff based on

~'l -8). 7

On the day it was announced that

Plaintiff was the new operations manager, Pearson quit, openly saying he couldn't deal with "niggers" and that he didn't want a "nigger" telling him what to do. (Cooper Aff. -,r 29; Cooper Depo. p. ] 57). He said there is "no way in hell he's going to work for a nigger." (Cooper Aff. -,r 29; Cooper Depo. p. 157). Plaintiff heard these comments from Pearson directly. (Cooper Aff. 29).


John Denham, a white employee who considers Pearson his "best friend", testified that

Pearson said he wasn't going to take any orders from a black man and wouldn't do what he was told to do by Plaintiff. (Denham Depo. pp. 62, 71, 72). Pearson returned to work sometime later and was rehired. (Cooper Aff ~ 30). Pearson

told Plaintiff to his face that he didn't care for black people and he wasn't taking orders from any black person other than Mr. Thompson (who is black). (Cooper Aff ~ 30). He told Plaintiff that Plaintiff was one of the black people he would not take orders from. (Cooper Aff.

'1 30).


also told Plaintiff that Mr. Bell didn't want a black man running his business and that Pearson would be taking over Plaintiffs
Oepo. pp. 192-3).

job soon, as per Mr. Bell's wishes. (Cooper Aff. ~ 30; Cooper

Pearson told Plaintiff that Mr. Bell wanted an "all white" work environment Plaintiff "had to go." (Cooper Aff. -,r 30). He made several variations

and that

of this statement,

including that Mr. Bell didn't want a nigger running his business and Plaintiff was soon to be fired. (Cooper Aff. -,r 30). Pearson said he was a "true redneck" and that Mr. Bell hired him to get rid of the blacks and Mexicans, that Mr. Bell paid him (Pearson) $1000 per week and that he knew it was more than Plaintiff made. (Cooper Aff.

'1 29).


Pearson referred to Plaintiff as "nigger" often and in his presence said he would "bust that nigger in the mouth and knock all his teeth out right now." (Cooper Aff. ~ 31). Pearson told Plaintiff that when he sees a white man coming, he is supposed to not show his teeth. (Cooper Aff. ~ 31; Cooper Depo. p. 124). Plaintiff complained to Mr. Bell about this incident and Bell told him to leave Pearson alone, that Pearson makes money for him and that Plaintiff shouldn't say anything to Pearson.

(Cooper Aff ~ 31). Bell told Plaintiff that if he sees Pearson coming, that Plaintiff should walk the other way. (Cooper Aff ~ 31; Cooper Depo. p. 124-125). Bell which let Plaintiff know complaining It was responses like that from After

further was pointless. (Cooper Aff. ~ 31).

Pearson returned to work, Plaintiff was made to deliver parts so that he would be off the property. (Cooper Aff. ~ 3]). Once when Plaintiff was talking to white employee Roger Cooper, Pearson, in Plaintiffs presence, said the Roger, "what did I tell you about talking to that nigger?" Pearson told Roger that if he wanted a job, he won't do that (talk to Plaintiff), and that Pearson was his boss. (Cooper Aff. ~ 32). Aff. He told Roger that he doesn't need to talk to Plaintiff for anything. (Cooper Pearson admits doing this. (Pearson Aff. ~ 8). To keep


32; Cooper Depo. p. 161-2).

Roger Cooper from being fired, Plaintiff talked to him less and avoided him. (Cooper Aff. Cooper Depo. p. 230). White employee John Denham supervised the warehouse

~l 2; 3

and was best friends with

Pearson. (Cooper Aff. ~ 33; Denham Depo p. 6). While Plaintiff initially had no problems with Denham, after Pearson started harassing Plaintiff based on race, Denham started picking on Plaintiff as well, making disparaging comments to him and threatening to call Mr. Bell about Plaintiff when he had done nothing wrong. (Cooper Aff ~ 32).


Defendant Bell Paid McCart, Pearson And Denham Money In Cash To Harass Plaintiff Based On Race Remarkably, Bell actually paid Pearson and John Denham extra money for the express purpose of racially harassing Plaintiff. (Pearson Aft.

fi 7).

As Pearson testified:

A couple of years ago, Mr. Bell called me at home and told me to harass Mr. Cooper, call him a nigger and treat him bad so Mr. Bell could get rid of him. He told me he would pay me $500 per week extra to do this. I asked Mr. Bell what if 1 say "no", and Mr. Bell told me I wouldn't have ajob. Because I needed my job, I did treat Mr. Cooper badly. If Mr. Cooper asked me to do something, I would refuse and tell him I didn't have to listen to him. Once, I called him a "dumb nigger" but didn't say that to him again. Mr. Bell also had me tell him I would not take orders from a black man. I also know that manager John Denham, who is my friend, was also paid extra money to harass Michael Cooper, as we talked about it. John Denham told me he was paid extra to "ride Cooper" and make him quit. (Pearson Aff. ~(7). M&S does a lot of cash business. Thompson (Thompson Depo. p. 13). General Manager Roosevelt

confirmed that Pearson was getting cash payments "under the table" at one time.

(Thompson Depo. pp. 28, 48). Barbara Reich ("Reich") was the bookkeeper and office manager for M&S Auto Parts As bookkeeper,

from 1996 until February, 20 II, when she retired. (Reich Depo. pp. 9-11).

Reich was aware of how much per hour or how much in salary each employee was paid. (Reich Depo. p. 13). Defendant Bell, Clay McCart, John Denham and Roosevelt Thompson were paid in cash in addition to their pay checks. (Reich Depo. pp. 14-15). Not all the department heads get paid in part in cash. (Thompson Depo. p. 24). However, McCart and Denham do. (Thompson Depo. pp. 24-5). The cash given to these employees was not reflected on a W-2 Form or 1099 Form. (Reich Depo. p. 48; Thompson Depo. pp. 32-3). Thompson, who is black, only began receiving cash from Bell within the year prior to his


deposition in November of20 11. (Thompson Depo., p, 27). This correlates to the November 18, 2010 date that the Equal Employment Opportunity Commission found "Reasonable Cause" to

believe that Defendants had engaged in racial discrimination against Plaintiff. (Exhibit "G"). Thompson, who denies witnessing any race discrimination taxes on the $500 per week cash payments against Plaintiff, does not pay Depo. pp, 23-4, 33),

he receives, (Thompson

Thompson knows this is tax fraud, that it was tax fraud while he was getting the cash, and that tax fraud is a felony and federal offense (Thompson Depo. 33), He admits he conspired with Bell to commit tax fraud. (Thompson Depo. p. 33). That amount of weekly cash payments was

expressly agreed upon by Thomson and Bell. There were also times when Bell would tell Reich to no longer pay an employee extra cash. (Reich Depo. p. 16), Pearson and McCart even harassed white employee Roger Cooper who was friendly with Plaintiff as a way of harassing and isolating Plaintiff (Pearson AfL

,r 8). Pearson


There was another worker at M&S Auto Parts named Roger Cooper, who is white, I knew Roger Cooper and Michael Cooper were friends. 1 harassed Roger Cooper and told him not to talk to Michael Cooper, by saying he should "not to talk to that nigger". I also called Roger Cooper a "nigger lover" and told him he would be fired if he kept talking to Michael Cooper. I did this to harass Michael Cooper so he would quit Clay McCart told me to make these statements to Roger Cooper and I heard Mr. McCart make those statements to Roger Cooper as well. (pearson AfL ~ 8), Plaintiff's Complaints of Race Discrimination and Harassment Are Ignored

Fellow employee, Roger Cooper (no relation to Plaintiff) told Plaintiff he complained to Mr. Bell about McCart calling Plaintiff a "nigger" and referring to Plaintiff as Roger Cooper's "black daddy" or "nigger daddy". (Cooper Aff ~ 16; Cooper Depo. pp, 121-3), Plaintiff

complained on a daily basis to Mr. Thompson about the harassment,

including the racial slurs,

Thompson said he would talk to Me Bell about it, but after talking to Mr. Bell, Thompson told 12

Plaintiff to just do his job and nothing changed. (Cooper Aff. ~ IS). Plaintiff also complained to Mr. Bell about the harassment from McCart and Pearson, but Mr. Bell responded Plaintiff's by calling him a "wimp" and they continued to harass him even after

complaint. (Cooper Aff. ~ 17; Cooper Depo. pp. 215-7).

When Plaintiff told Mr. Bell

that Pearson called him "nigger", Me Bell said that it was not a secret word, it was a word Plaintiff heard before, that rap songs say it all the time and that it was nothing new to Plaintiff, so he should just not pay attention to it. (Cooper Aff. ~ 17; Cooper Depo. p. 225). Defendant Bell Racially Harasses Plaintiff Which Was Witnessed By Other Employees John D' Ambra ("D' Ambra) and Albert Smart ("Smart") were employed by M&S in the recycling department. (D' Am bra AtT. ,[ 2; Smart Aff four or five times.

'1 2).

D' Am bra witnessed Bell refer to

Plaintiff as a nigger approximately

(D' Ambra Aff. ~ 3), On one occasion,

D' Ambra understood the company ordered a new tire machine, which Smart told D' Ambra was defective. (D' Ambra Aff.


When Plaintiff told Bell that the machine was defective, Bell

yelled at Plaintiff and told him to "get [your] fucking ass back down the hill" (back to the parts area). When Plaintiff left, as Bell ordered him to do, Bell said to Smart in D' Ambra's presence "That fucking nigger doesn't know what the hell he is doing" and "You mean that fucking nigger can't get it fixed" or words to that effect. (D' Ambra Aff. ~ 3). Bell also referred to Plaintiff as a "dumb nigger". Aff. (D'Ambra Aff.

'1 3).

Smart and 0' Ambra said nothing in response. (0' Ambra



Albert Smart confirms this incident as well as Bell's references to Plaintiff as a (Smart Aff. ~ 3). Smart witnessed Bell refer to Michael Cooper as a "nigger"


approximately three times. (Smart Aff. ~ 3). On another occasion, Bell was in D' Ambra's work area and Plaintiff was driving on the property. Bell pointed to him and told D' Ambra "That's my little nigger". (D' Am bra Aff ~ 4).


D' Ambra just shook his head and said nothing. (D' Ambra Aff. 14). The second time Smart heard Bell refer to Mr. Cooper as a "nigger" was when Bell was looking for a part on a car. (Smart Aff , 4). Apparently, Plaintiff told him that a part Bell When Bell could not locate the part, he said "that

needed could be found on a particular car.

fucking nigger doesn't know what he's talking about. That part is not on this car". (Smart AfC , 4). At that time, there were no other black employees who would have been in a position to tell Bell where a part on a junked car may be located, so Smart knew he was talking about Plaintiff. (Smart Aff. , 4). Another occasion Bell was talking to D' Ambra and Smart and said "Mike Cooper is my fucking nigger. He does everything I tell him to do." (D' Ambra Aff. , 5; Smart Aff. ~ 5). Smart and D' Ambra just looked at each other and shook their heads. (D' Ambra Aff. , 5). Pearson

heard Bell make the comment that Mike Cooper is his nigger dozens of times, sometimes at meetings. (Pearson Aff. ~ 5). On another occasion, there was a meeting at which Smart, Clay McCart, Richard (last name unknown), Bell and D' Ambra attended. Bell telephoned Plaintiff, who was working in

another part of the lot and yelled at him that he "needed to get [your] fucking ass up here" to the meeting. (D' Ambra AfC ~ 6). While they were waiting for Plaintiff to arrive, Bell said to the (D' Ambra

group "that fucking nigger doesn't know what's going on" or words to that effect.

AfC ~ 6). Clay McCart then said "that's what you get for hiring fucking niggers." (D' Ambra Aff. ~ 6). Bell agreed. (D' Ambra Aff.


The other workers and D' Ambrajust

looked at each

other and said nothing. (D' Ambra Aff. ~ 6). D' Ambra has also heard Bell refer to black people besides Plaintiff as "niggers" several other occasions. (D' Ambra Aff. on


For example, Bell has another business called



U Pulllt",

which is a salvage yard where customers themselves pull the car parts they

need off of the junked cars and would buy those parts. (D' Ambra Aff. ~ 7). The majority of the "Miguel's U Pull it" customers were black. (D' Ambra Aff. ~ 7). Bell said to D' Ambra when he U Pull It" lot from D' Ambra's work location up on the hill, (D' Ambra Aff.

was looking down at the "Miguel's

"Look at all those niggers. They look like their picking my green cotton."

,! 7).

Bell would refer to some of M&S Auto Parts' black customers as "niggers" or "dumb ass niggers" but did not say this to their faces. (Pearson Aff ..~ 5). There were times when a black customer would ask for the wrong car part and Pearson would go find it in the yard and bring it back. (Pearson Aff. ~ 5). After the customer would leave, Bell would say things like "look how stupid those dumb ass niggers are". (Pearson AfT. ~ 5). Pearson also heard Bell refer to

employee Roosevelt Thompson, who is black, as a "dumb ass nigger" when Bell was talking to Pearson on the telephone. (Pearson Aff. ~ 18). D' Ambra also saw Bell virtually every day that he was at the business treat Plaintiff very badly and wou Id curse him out in front of other employees, often at meetings. (D' Ambra Aff. 9). D' Arnbra could tell Mr. Cooper felt humiliated and D' Ambra was uncomfortable



another person treated this way. (D' Ambra Aff. ~ 9). The workers were required to be present for a 7:30 am meeting almost every morning. (D'Ambra Aff. ~ 10; Smart AfC ~ 8). These meetings were called the "morning meeting".

(Pearson Aff. ~ 4). Often, Bell would conduct the meeting. (D' Ambra Aff. , 10; Smart Aff. ~ 8). Bell would yell loudly at Plaintiff at these meetings. (D' Ambra Aff.


10 Smart Aff. , 8).


would yell at Plaintiff that he "needed to get off [your] lazy fucking ass". (D'Ambra

Aff. , 10;

Smart Aff. ~ 8). At the end of one meeting, D' Ambra and Smart both heard Bell tell Plaintiff that he wished it was the "olden days" where he could take him "out back and whip his ass".



Aff ~ 10; Smart Aff ~ 8). Plaintiff (D' Ambra Aff. ~ 10; Smart Aff.

D'Ambra and Smart all understood this to be a

racist statement.

,r 8; Cooper

Aff. ~ 23).

Bell made the statement at more than one staff meeting, in front of everyone, that he wished it was the olden days when he could take Plaintiff out back and whip his ass or whip his ass until it bleeds. (Cooper Aff. ~ 23; Cooper Depo. pp. 168·9). Plaintiff understood this

statement to refer to slaves being whipped and was highly offended and humiliated. (Cooper Aff. ~ 23). Bell would also curse Plaintiff regularly, telling him to "get your fucking ass" over to

some location or other. (Cooper Aff.

'J 23).

On many occasions, when Bell talked to Plaintiff, he was yelling at him, insulting him or cursing him. (D' Ambra Aff. ~ 10). According to Smart, this occurred most of the time Bell talked to Plaintiff. (Smart Aff. 18). Pearson also heard Mike Bell call Plaintiff a "sorry fucking nigger" at the "morning meeting". (Pearson Aff. ~ 4). People who were at the meeting included John Denham, Clay

McCart, Roosevelt Thompson and Plaintiff. (Pearson Aff.



looked hurt and upset

when Bell said this. (Pearson Aff. 14). Pearson also heard Bell call Plaintiff a "nigger" at other meetings, in front of Clay McCart, John Denham and others. (Pearson Aff. , 4). Each time,

Plaintiff looked hurt and would put his head down. (Pearson AfC , 4). In one meeting, Plaintiff could not remember something Bell told him, and in front of McCart, Denham, D' Ambra and Pearson, Bell said "fucking stupid niggers" and "stupid ass niggers". (Cooper Aff. , 22). Bell would constantly talk down to Plaintiff, would scream at him and was very insulting. (Pearson AtT. (Pearson Aff.

'1 5).

Pearson heard Bell say behind Plaintiffs

back that "Mike is my nigger".

Pearson heard Bell make this statement dozens of times. (Pearson Aff. ~ 5).

Bell also said this sometimes at the morning meetings. (Pearson Aff. ~ 5).


Bell Orders Plaintiff To Say He Is Bell's Nigger
On another occasion, Bell brought Plaintiff with him on an errand, to give his daughter's softball coach something. (Cooper Aff. ~ 21). Barrel. (Cooper Aff. ~ 21). They met the coach in the parking lot of Cracker

In front of the coach, who was white, Bell told Plaintiff to tell the

coach how bad he (Mr. Bell) treats Plaintiff, and that Plaintiff should tell the coach the truth. (Cooper Aff. , 21). Plaintiff said that Bell "treats me like shit every day and I kiss his ass like

he wants me to every day" or words to that effect. (Cooper Aff. ~ 21; Cooper Depo. p. ]47). Bell laughed and told Plaintiff to tell the coach that he was his (Mr. Bell's) nigger. (Cooper Aff. ~ 21). Plaintiff did what he was told. (Cooper Aff. Plaintiff was highly humiliated

'1 21).

The coach just stared and did not laugh, and and told fellow employee John 0' Am bra

by this experience

about the incident that day. (Cooper Aff. ~ 2 I; Cooper Depo. p. 145~6; 0' Ambra Aff. ~ 12). 0' Ambra testified that Plaintiff was clearly upset when he told D'Ambra this story. (0'Ambra Aff. ~ 12). Often, Bell would scream at Plaintiff, tell him he "wasn't worth a shit" and talked to Plaintiff like he was a dog, while he did not treat white employees this way. (Cooper Aff. , 17; Cooper Depo. p. 131). Bell screamed obscenities in Plaintiffs face and criticized and cursed

him out at least 40-50 times. (Cooper Aff. ~ ] 7; Cooper Depo. pp. 225-6).

Bell Physically Threatens Plaintiff
In the Spring or Summer of 2007, Bell was angry that he got an email from an unhappy customer (Taurus Maner) who bought a bad motor from M&S and Bell blamed Plaintiff.

(Cooper Aff. ~ 19). Bell told Plaintiff he wanted to kick his ass. (Cooper Aff. ~ 19). Plaintiff asked him why and he said he just wanted to. somebody's ass to whip. (Cooper Aff. ~ 19). He said he needed

(Cooper Aff. ~. 19). Bell told Plaintiff that as mean as he's been to


him, he knew Plaintiff wanted to fight him. (Cooper Aff. ~ 19). Plaintiff told him he didn't want to fight him and Bell called him "chicken shit". (Cooper Aff. ~ 19). Bell told Plaintiff to give him Plaintiff's cell phone (which he did), disconnected the

telephone from the wall so Plaintiff couldn't make a call, and told Mr. Thompson to make sure Plaintiff didn't leave the office until they closed. (Cooper Aft. ~ 19). He said when we close

tonight, "you ain't going nowhere" and that Mr. Thompson would be the referee. (Cooper Aft. ~ 19). He told Plaintiff to stay in the office until they closed, which Plaintiff did. (Cooper Aff. ~ 19). Mr. Thompson was present and was trying to get Bell to calm down. (Cooper Aff. ~ 19). Plaintiff felt very physically threatened, as Bell is a large man and was very angry.

(Cooper Aff. ~ 19). Bell also carries a gun to work. (Bell Depo. p. 121). Bell is a violent man, as shown by the fact that his wife had to call the police when he put his fist through a wall during a fight with her. (Bell Depo. p. 27). According to Mrs. Bell, Bell put a gun in his mouth that night. And threatened to kill himself. (Sheila Bell Depo. pp. 15~16). Bell also beat up a man once because that person's brother beat up Bell's brother. (Bell Depo. p. 197). A couple days after Bell physically threatened Plaintiff: Bell threatened to fire him. (Cooper Aff. ~ 19). Bell also told Plaintiff that as a white man, he could get people to do work for less than Plaintiff could get them to do it. (Cooper Aff ~ 24). That because Plaintiff was black, he paid more for services and for people to do work. (Cooper Aff. ~ 24). Bell also told Plaintiff that he should never talk about his family and that he "didn't give a shit" about anyone in Plaintiff's family. (Cooper Aff ~ 25). He told me Plaintiff he was shit,

that that none of his family members were worth a damn and that he should fire Plaintiff right there on the spot. (Cooper Aff. ~ 25). Plaintiff begged him not to fire him and Bell told Plaintiff he wasn't worth a damn. (Cooper Aff. ~ 25). When Plaintiff asked Bell why he was treating him


like this, he responded "because I can." (Cooper Aff ~ 25; Cooper Depo, pp. 228-9). Plaintiff Is Denied Days Off Not Denied White Employees During a morning meeting, Bell announced that the white managers would now work five days each week, but black managers Roosevelt Thompson and Plaintiff would continue to have to work six days each week. Plaintiff asked to work five days each week but Bell refused, telling him he had to work there for two years before he could get a day off (Cooper Aff ~ 34; Cooper Depo. pp. 184-186). Other employees noticed that Plaintiff had no days off while other managers had

scheduled days off (0' Ambra Aff ~ 13). When 0' Ambra asked Plaintiff why he didn't have any scheduled days off, he told 0' Ambra Mr. Bell would not give him any. (0' Ambra Aff. ~ 13). As Plaintiff was working 65-70 hours per week, he asked Bell for some time off in early 2008. (Cooper Aff. ~ 12). Plaintiff told Bell he was a single parent, was missing church and other activities and needed some time off (Cooper Aff ~ 12). Bell refused. (Cooper Aff. ~ 12).

Plaintiff asked Bell to leave early on one particular Saturday, as he promised his minister he would do something at church that Saturday, and Bell refused to let him leave. (Cooper Aff. ~ 12). In fact, at the next morning meeting, Bell said in front of everyone that he paid Plaintiffs god. (Cooper Aff.

salary and that he was Plaintiffs


12). Other employees were permitted to

leave early on occasion if they needed to. (Cooper Aff. ~ 12). Plaintiff Denied To Leave Early To Take Daughter To The Emergency Room On one occasion, Plaintiff had to leave because his daughter had to go the emergency room. (Smart Aff. ~ 9), Smart witnessed Bell curse Plaintiff out, telling Plaintiff he needed to stay at work. (Smart Aff. ~ 9). This incident is confirmed by 0' Ambra. (0' Ambra Aff. ~ II).


Plaintiff Is Forced to Do Hard Labor Not Part Of His Job Plaintiff was also made to load heavy motors on and off the truck by himself. (Cooper

Aff. ~ 36). He was supposed to be a supervisor and M&S had laborers who were supposed to the heavy labor. (Cooper Aff. ~ 36). With Plaintiffs painful for him to do heavy labor. (Cooper Aff. medical conditions, it was very difficult and

'1 36).

Plaintiff complained to Mr. Thompson

about it, but he told Plaintiff to do his job or move on. (Cooper Aff. ~ 36). D' Ambra also witnessed Plaintiff doing strenuous, manual labor, such as loading tires, aluminum wheels, engine cores and other heavy materials. (D' Ambra Aff. ~ 15). D' Ambra did

not see any other managers doing that kind of heavy labor and the company had laborers who should have been doing that kind of work. Plaintiff had a bad leg. (D'Ambra Aff. ~ 15). (D' Ambra Aff. ~ 15). It was also known that

D'Ambra frequently saw Plaintiff in obvious pain

while he worked and he often had a severe limp. (D' Ambra Aff.

'i IS).

Plaintiff's Pay Is Cut By 15% When Others' Pay Was Cut By 10% In late 2007, Plaintiffs morning meeting that everyone's 15%. pay was cut 15%. (Cooper Aff ~ 11). pay was cut by 10%, except Plaintiffs Bell announced at a pay, which was cut by because he

This was shortly after Plaintiff had refused to fire Roosevelt Thompson,

believed Bell's directive was illegal and racially discriminatory.

(Cooper Depo., p. 175-176).

Plaintiff didn't complain to Bell about the pay cut, as he was physically afraid of him. (Cooper Aff. '111). The pay cut was Bell's decision. (Bell Depo. p. 89). Everyone received a pay cut. (Bell Depo. p. 89). Bell doesn't remember if Plaintiff's pay cut was more than everybody else pay cut would be more pay deserved to be

received. (Bell Depo. p. 89). Bell has no explanation for why Plaintiffs

than anyone else's. (Bell Depo. p. 89). Bell can think of no reason Plaintiffs


cut more than anyone else. (Bell Depo. pp. 90; 105). Bell can't remember any performance issues with Plaintiff prior to November, 2007, which is when his pay was cut. (Bell Depo. p. 104). Bell claims that the pay cuts were restored for everyone but Plaintiff and 2 other

employees. (Bell Depo. p. 109). However, Roosevelt Thompson testified that his pay cut has never been restored. (Thompson Depo., p. 101). Plaintiff Is Terminated And Replaced By A White Employee In early August, 2008, Plaintiff became ill with nausea, dizziness, vision. (Cooper Aff. ~ 37). fever and blurred

Plaintiff told Bell he was ill as soon as he got sick and went to his

doctor, who did some blood tests. (Cooper Aff. , 37). While Plaintiff was waiting for the blood tests to come back, he went to work one day, as he needed his job. (Cooper Aff. ~ 37). However, Plaintiff was very sick and passed out at work. (Cooper Aff. ~ 37). He was told not to come back until he found out what was wrong with him. (Cooper Aff. , 37). Plaintiff was ultimately

diagnosed as having West Nile virus. (Cooper Aff. ~ 37). Plaintiff was out of work under the advice of his doctor from August 5, 2008 through August 20,2008 (with the exception of the one day he tried to return to work) and provided doctor's notes to M&S during his illness. (Cooper Aff. ~ 37; Thompson Depo. Exs. 3-5). Plaintiff returned to work August 21, 2008 and worked all day delivering parts. (Cooper Aff. , 37).When he returned to work, he was able to perform his duties and did so. (Cooper Aff. ,; 37). When Plaintiff came to work the next day, August 22, 2008, he was told by general manager Roosevelt Thompson that his services were no longer needed. (Cooper Aff.



Plaintiff asked why he was fired and was told they don't need to give him a reason. (Cooper Aff.

fi 38).


It was Bell's decision alone to fire Plaintiff, but Bell had Thompson do the actual firing. (Bell Depo. pp. 60-61; Thompson Depo. p. 59). According to Bell, he had talked to Plaintiff

numerous times about him not being competent and fired him for being incompetent. (Bell Depo. p. 62). Bell claims that customers were complaining customer who complained. (Bell Depo. p. 66). Bell claims he didn't know Plaintiff was in the hospital before he was fired. (Bell Depo. p. 154). Bell is sure Plaintiff got medical excuses but he didn't look at them. (Bell Depo. p. 155). Bell also claims that he was not aware Plaintiff was out sick from August 5 to August 21, 2008. (Bell Depo. p. 155) Plaintiff applied for and was granted unemployment Defendants contested his qualification for unemployment Department payments after his termination. about Plaintiff, but can't name a single

compensation, stating in writing to the Depo. Ex. 2).

of Labor that Plaintiff was fired for being untruthful. (Thompson

However, Bell doesn't know if the reasons provided to the Department of Labor are correct. (Bell Depo. p. 159-160; Thompson Depo. Ex. 2). Plaintiff never lied to Bell or anyone else at M&S about when cars would be ready for inspection or anything else. (Cooper Aff. ~ 39). He always did the best job he could and treated everyone he worked with and all customers with respect and in a professional manner. (Cooper Aff. ~ 39). A few days after being fired, Thompson came to Plaintiffs house and told him he would

talk to Bell and see if Bell would let Plaintiff come back to work. (Cooper Aff. ~ 40; Cooper Depo. p. 86). Thompson did not offer Plaintiff his job back, but only said that he would see if Bell would let him come back. (Thompson Depo. p. 185;Cooper Aff.

,r 40).

No one actually

offered Plaintiff his job back. (Cooper Aff. ~ 40).


Bell never called Plaintiff and offered him his job back. (Thompson Depo. p. 185). Bell did not tell Thompson he was going to rehire Plaintiff, but that Plaintiff should call him.

(Thomson Depo. p. 185). Thompson has no idea what Bell wanted Plaintiff to do. (Thompson Depo. p. 186). However, Thompson believes Plaintiff should have been hired back and tried to

talk Bell into it as Plaintiff was a good worker, a hard worker and a good man. (Thompson Depo. p. 186). When Bell was asked why he would be willing to rehire Plaintiff, who he claims was so incompetent he had to be fired only days earlier, Bell said it's hard to explain and he doesn't really know why he was willing to rehire him. (Bell Depo. p. 166). Robert McManus was hired to take over the duties Plaintiff was performing (Bell Depo. pp.47-8). McManus is white. (Bell Depo. p. 48).

Plaintiff Suffered Severe Emotional Distress And Required Psychiatric Care By the time Plaintiff was fired, he had been ridiculed, embarrassed, treated like an animal on a daily basis without any justification or provocation. cursed out and (Cooper Aff. ~

45). The harassment was so regular that Plaintiff was always fearful and on edge. (Cooper Aff. ~ 45). Even when Bell, McCart, Pearson or Denham didn't abuse him, he was fearful and upset every time he had to meet with or talk with them, as he didn't know if he would be threatened, cursed out or fired. (Cooper Aff. ~ 45). D' Ambra could see that Plaintiff was very upset with the constant bad treatment and he was often visibly upset. (D' Ambra Aff. ~ 16). D' Ambra personally felt very bad for Plaintiff, as from what he saw, Plaintiff was a good employee and a good coworker and D' Ambra did not believe that the extremely bad treatment was deserved. (D' Ambra Aff. ~ 16). From what he race. (D' Ambra Aff. ~ 16).

saw, D' Ambra believed the bad treatment was due to Plaintiffs


0' Ambra did not see Bell treat anyone the terrible way he treated Plaintiff. (6). In fact, in D'Ambra's


Aff. ~

entire life, he had never seen anyone treat anyone else as bad as Bell ~ 16).

treated Plaintiff. (D'AmbraAff.

Virtually every day Bell was at the business, Albert Smart saw Bell treat Plaintiff very badly and curse him out in front of other employees. (Smart Aff. ~ 7). While there may have been days Bell did not curse Plaintiff, it was so frequent, that Smart can't remember any day where he did not curse out or abuse Plaintiff. (Smart Aff. ~ 7). Smart could see that Plaintiff was very upset with the constant bad treatment and he was often visibly upset (Smart Aff. ~ 10). The harassment and treatment of Plaintiff by Bell was so severe that it made Smart feel very bad for Plaintiff. (Smart Aff. ~ 10). Smart did not see Bell treat anyone in the shameful manner he treated Mr. Cooper. (Smart Aff. ~ 10). As a result of the severe emotional distress he suffered because of the racial harassment and his firing, Plaintiff received treatment from psychologist Dr. Samuel Haskell and saw him about a dozen times. (Cooper Aff. ~ 46; Cooper Depo. p. 128). Plaintiff was having crying spells and anger management problems. (Cooper Aff, ~ 46). Any disparaging treatment he received

made him feel like he was going to snap. (Cooper Aff. ~ 46). For example, a man yelled at him on the street and Plaintiff yelled back at him and was prepared to fight him, which is not like Plaintiff. (Cooper Aff. 146). Plaintiff didn't fight him, but knew he needed help with this issue, which he knows was directly related to the treatment he received at M&S. (Cooper Aff. ~ 46). Plaintiff had no anger management problems before or while working at M&S. (Cooper Aff. ~

46). Due to the torment he received at M&S by Bell, Pearson, McCart and Denham, he felt very sad and depressed and his opinion of himself suffered greatly. (Cooper Aff

,r 46) After

he was

fired, he had no money, which added to his anxiety and feelings of depression. (Cooper Aff.



46.) After he was fired. Plaintiff regularly saw psychiatrist, Dr. Alexander Meski, who

proscribed Zoloft, which he took for approximately three years. (Cooper Aff. ~ 47). There were other drugs he gave Plaintiff, including an antidepressant. psychologist, (Cooper Aff.

'1 47).

Plaintiff told the

Dr. Haskell and Dr. Meski about the treatment he experienced at M&S and that (Cooper Aff. ~ 47). Plaintiff has been diagnosed with Post His mental and emotional problems

was what was upsetting him.

Traumatic Stress Disorder (PTSD). caused by Defendants'

(Cooper Aff. ~ 47).

harassment and termination are the primary reason for his application for

Social Security Disability. Plaintiff hopes to be able to return to work, and believes that receiving justice in this case will help him to overcome the anger and trauma caused by Defendants' discriminatory actions. (Cooper Aff.

,r 47).

Defendants Retaliated Against Plaintiff For Supporting the Overtime Lawsuit Brought By Other Employees Against Defendants
In May, 2009, five former employees of M&S sued M&S and Bell under the Fair Labor Standards Act ("FLSA") for overtime pay. That case was entitled John D'Ambra, et at v. M&S Auto Parts of Fayetteville, Inc. and Michael Bell, Civil Action File No.1 :09-CV-1662-CCH, Plaintiff

which was in U.S. District Court for the Northern District of Georgia, Atlanta Division. was identified by the plaintiffs in their initial disclosures

as a witness in that case whose

testimony supported their claims, and in fact he did cooperate with those plaintiffs. (Cooper Aff. ~ 42). Plaintiff was aware that they worked overtime for which they were not paid and told that to the plaintiffs and their attorneys. (Cooper Aff ~ 42). The Initial Disclosures of the Plaintiffs identified Plaintiff as supporting their claims by stating: Michael Cooper 2063 Sunset Drive Douglasville, GA 30135 25

678~40 1~7264 Mr. Cooper has knowledge that Mr. Bell had exercised complete control over the operations of M&S Auto Parts and of the job duties of each plaintiff. He also has knowledge that each plaintiff worked many hours of overtime for which they were not paid. On September] Plaintiff a defendant 7, 2009, M&S and Bell made a motion in the D' Ambra case to make in that case, alleging that Plaintiff was the employer of the D' Ambra

plaintiffs and was ultimately liable for any damages M&S or Mr. Bell had to pay. (Cooper Aff. ~ 43). Bell authorized the motion. (Bell Depo. p. 72). The lawyers for the 0' Ambra plaintiffs,

who are also the lawyers representing Plaintiff in this lawsuit, opposed that motion and served a Rule II motion against M&S, Mr. Bell and defendants' Plaintiff as a defendant was improper and frivolous. attorneys, arguing that the motion to add (Cooper Aff.

'1 43;

Ex. "F" - Brief in

support of Rule II motion). The D' Am bra case was resolved before that motion was ruled on. Defendants did not seek to add any other managers - including Barbara Reich, McCart, Denham, or Thompson - as a Defendant to the FLSA claim. (Bell Depo., pp. 71~73, 177~178).

Bell knew that Plaintiff - unlike these other individuals - was providing testimony in support of the claims in that case. (Bell Depo., p. 73). No other explanation has been provided for only

seeking to add Plaintiff as a Defendant in that case. Plaintiff did not ultimately have to pay a lawyer to keep him out of the D'Ambra case, as the lawyers representing the plaintiffs opposed the motion to add him as a defendant in their

capacity as the lawyers for the plaintiffs in that case. (Cooper Aff. ~ 44). The D' Ambra plaintiffs did not want to sue Plaintiff, as they knew he had no control over their failure to be paid properly and actually supported their claims. (Cooper Aff. ~ 44). However, Plaintiff understood that if the motion to add him as a defendant was granted, at that time he would need to hire a lawyer to defend him. (Cooper Aff. ~ 44). While that motion was pending, which was between September


17, 2009 and November,

2009, Plaintiff suffered severe emotional distress as he thought he

could be liable for overtime wages and attorney fees which he could not afford. (See Exhibit "E" ~ the Docket Report in the D' Ambra lawsuit, showing that the motion was pending for over six weeks before the case was resolved). While Plaintiff knew he had no role in failing to properly pay employees overtime pay, he had no idea what the court would do, and was very worried he would be financially ruined by having to pay a lawyer to defend him in that case and possibly to pay a judgment. (Cooper Aff. ~ 44). He had no money to pay a lawyer or a judgment. (Cooper Aff. ~ 44; Cooper Depo. p. 111). Plaintiff believes the reason defendants tried to make him a defendant in that case was to convince him to change his testimony so he could avoid liability, to retaliate against him for assisting the D' Ambra plaintiffs, to retaliate against him for filing an EEOC charge of discrimination against them and due to his race. (Cooper Aff. ~ 44).

Defendants Violated The Americans With Disabilities Act By Not Keeping Employees' Medical Files Separate From Their Personnel Files When the Equal Employment Plaintiffs charges of discrimination, Opportunity Commission ("EEOC") came to investigate

they discovered that M&S had medical files in with the

personnel files, and EEOC instructed M&S to keep them separated. (Bell Depo. p. 186). The EEOC told Reich she needed to keep employee medical files and personnel files separately, as M&S maintained Plaintiffs them together. (Reich Depo. p. 28). Any medical information regarding

workers comp. claim would be in his personnel file. (Thompson Depo. p. 1] 3). The

EEOC expressly found this to be a violation of the Americans with Disabilities Act. (See Ex. "G" - EEOC determination). The EEOC Found In Plaintiff's Favor On His Racial Discrimination, Retaliation Claims After Plaintiff was fired, he filed two discrimination Harassment, and

charges against Defendants with the


EEOC. (Cooper AfT. ~ 48). After a lengthy investigation, the EEOC found in Plaintiffs and found that he was discriminated against, harassed and terminated


due to his race and in

retaliation for his complaints of discrimination.

(Exhibit "G" - EEOC Determination).

Bell And Denham Obstruct Justice, Threaten A Material Witness And Defendants Terminate Pearson For Refusing To Submit A Perjurious Affidavit To This Court In This Case Around the end of May, 201 I, Bell invited Pearson to come over to his house after work with John Denham, to pick up some fish he had caught and was going to give to Pearson and Denham. (Pearson AfC ~ 11). While Denham and Pearson were there, Bell told them that he

had gotten some papers from a lawyer that said he had called Michael Cooper a "sorry fucking nigger". (Pearson Aff. ~ 11). Bell said he did not remember saying this and asked if Denham and Pearson remembered him saying that. (Pearson Aff.

'r 11).

Pearson told Bell that he did remember him saying that. (Pearson Aff. ~ ] I). Bell said that he did not remember saying it and that Pearson shouldn't remember it either, because if he did Pearson would have to go to court. (Pearson Aff. ":[ 11). John Denham admits he heard Pearson tell Bell that he (Pearson) did remember Bell calling Plaintiff a "sorry fucking nigger" at a meeting. (Denham Depo. pp. 15-6). remember that. Denham testified he expressly heard Pearson say "I

You called him a sorry fucking nigger". (Denham Depo. pp. 15-6). Pearson

again told Ben that he did remember Bell saying those words. (Pearson Aff. Pearson and Denham that Pearson should not remember it because Pearson's drug through it" and Pearson "wouldn't have ajob." (Pearson Aff. ":[II). Pearson felt threatened anyone.


I 1). Bell told

name "would be

by Bell's statement, as he did not want to lie under oath for Bell saying it when Pearson did

(Pearson Aff. ":[ 12). Saying he didn't remember

remember it would be a lie. (Pearson Aff. ~ 12). Pearson knew lying under oath was a crime and


that he cou ld get into serious trouble, and was not going to do it. (Pearson Aff. ~ 12). However, Pearson also needed his job and did not want to be fired again. (Pearson Aff. ~ 12). Almost every day after that, right up until the day he was fired, John Denham would tell Pearson to listen to what Bell said, that Pearson should keep his mouth shut like he did over the past years and sign a statement for Bell's lawyers that Pearson didn't remember Bell saying Plaintiff was a "sorry fucking nigger". (Pearson Aff. ~ 12). Pearson told Denham about filing his own EEOC charge on way home sometime after getting the fish. (Denham Depo. pp. 12, 16). Pearson told Denham he thought he should file because he was getting harassed. (Denham Depo. p. 12). Pearson told Denham Bell wanted him to lie for him. (Denham Depo. p. 77). Denham told Pearson that he (Denham) was made to sign an affidavit some time ago about Michael Cooper but Denham did not tell Pearson what it said. (Pearson Aff. ~ 20). Denham also told Pearson he had signed a new one in 2011. (Pearson Aff. ~ 20). The next Friday, when Pearson went to get his pay, Bell told Pearson that he was cutting Pearson's pay by $250 each week, because Pearson wasn't worth what he was paying him. Bell also told Pearson he doesn't "need a fucking reason" for doing do.

(Pearson Aff. ~ 13).

(Pearson Aff. ~ 13). Bell told Pearson that the $250 was just a bonus he gave and didn't have to give it. (Pearson Aff. ~ 13). This was a real problem for Pearson, as he needed all of his pay to

support himself and his family. (Pearson Aff. ~ 13). Pearson believes Bell did this to intimidate Pearson into saying that he didn't remember him calling Mr. Cooper a "sorry fucking nigger". (Pearson Aff. ,; 13).


When Pearson Does Not Agree To Perjure Himself Even After Having His Pay Cut $250.00 Per Week, He Has His Car Repossessed And Is Threatened With Termination By Defendants M&S also sells cars under the name "M&S Auto Sales". (Pearson Aff ~ 14). Pearson bought a car from M&S Auto Sales and made payments to M&S of $100 every two weeks to pay for it. (Pearson Aff ~ 14). The day after Bell cut Pearson's pay by $250 per week, Bell called Pearson at work and told him that because his pay was being cut, Pearson didn't have to make the car payment that week and could make it the next week. (Pearson Aff. ~ 14). Bell was friendly to Pearson in that conversation for the first time since Pearson told him he remembered him calling Plaintiff a "sorry fucking nigger". (Pearson Aff ~ 14). When Pearson woke up the next day, which was a Sunday, he saw that his car was missing. (Pearson Aff. , 15) Pearson called Bell and told him that his car was stolen. (Pearson Aff ~ 15). Bell responded by saying that it was not stolen, but that the "repo" guy took it.

(Pearson AfT. ~ 15). Pearson asked why and he said that Pearson didn't make his car payment yesterday. (Pearson Aft. ~ 15). Pearson told Bel! that he said Pearson didn't have to make it that week and Bell said that has nothing to do with anything. (Pearson Aff. ~ 15). He said he was spending time with his family and didn't have time for Pearson's bullshit, (Pearson Aff. ~ IS). The next day, which was Monday, manager Roosevelt Thompson told Pearson that things weren't working out and that Pearson was fired. (Pearson Aff. ~ 16). When Pearson asked for a separation notice, Mr. Thompson called Bell and Pearson was told by Thompson to continue to work until Bell decided how to write up the separation notice. (Pearson Aff ~ 16). After that, Bell told Pearson that they were going to keep him for awhile. (Pearson Aff. ~ 16).



With Termination,

Defendants Again Demand That Pearson Perjure In This Case


Soon after, Pearson was told by Bell's secretary that Pearson needed to give a statement to Bell's lawyer. (Pearson Aff. ~ 17). Bell then called Pearson at work and said that his lawyer

was coming to get a statement from him, and Pearson needed to give a statement on his behalf. (Pearson Aff. ~ 17). Bell said to remember what he told Pearson and John Denham "that we shouldn't remember things." (Pearson Aff.

,r 17).

Pearson told Bell that he couldn't lie for him,

and Bell told Pearson that he better give a statement on his behalf "or else". (Pearson Aff. ~ 17). Bell said to give the statement or Pearson "knew what was going to happen". (Pearson Aff. ~ 17). Pearson understood this as another threat to fire him if Pearson didn't lie and sign whatever statement his lawyer wanted Pearson to sign. (Pearson Aff. ~ 17). The lawyer did come to work and Pearson believes Clay McCm1, Roosevelt Thompson and John Denham gave the lawyer statements. called Pearson and left messages, (Pearson Aff. ~ 17). The lawyer's office then

but Pearson did not take their calls. (Pearson Aff. ~ 17).

Pearson was fired in late August, early September, 2011. (Pearson Aff. ~ 17). Pearson testified that he is sure that his refusal to give a false statement to Bell's lawyer is the reason Pearson's car was repossessed and that he was fired. (Pearson Aff. ,[ 17). Bell Leaves Threatening Voice Mail For Pearson

Pearson filed an EEOC charge alleging retaliation and gave it to Thompson. (Thompson Depo. p. 174). After receiving it, Bell left a voice mail message for Pearson. (Bell Depo. pp. 1356)(138). Bell admits in the voice mail, he said to Pearson "1' 1I get you too buddy, 1'1I get you

too" and that "I got millions of dollars in the bank." (Bell Depo. pp. 136-7). Bell admits he was saying he had the resources to get Pearson. (Bell Depo. p. 139). The voice mail message also contains the statement "I'I! do you just like I done Cooper."


Defendants Have Suborned Perjury And Have Had Other Employees Testify Falsely In This Case Barbara Reich Defendants' former bookkeeper and office manager, Barbara Reich ("Reich") provided defense of Plaintiff s discrimination claims.

an affidavit to the EEOC supporting Defendants'

(Reich Depo. Ex. 1). However, at deposition, Reich testified that she worked in the office and did not have the opportunity to see workers interact with each other. (Reich Depo. p. 16). The office was located on the second floor of the building. (Thomas Depo. p. 21). The upstairs

offices were separated from the downstairs by glass doors. (McCart Depo. p. 82). She also did not generally attend the morning meetings. (Reich Depo. p. 49). If Bell, McCart, Denham,

Pearson or anyone else was harassing or mistreating Plaintiff, that is not something she would have been able to see. (Reich Depo. pp. 16-17, 24). As Reich testified "Basically if they weren't upstairs with me, I would not know what was being said or done." (Reich Depo. p. 17). She and fellow office employee Katrina Thomas were never privy to behind closed doors conversations between Bell and Plaintiff. (Reich Depo. p. 51). Reich was told to provide a statement to Defendants' that affidavit, Reich claims that the company attorney (Reich Depo. pp. 26-7). In any discrimination against

never conducted

Plaintiff (Reich Depo. Ex. "I", Par. 3).

Most of the matters testified to in the affidavit are

matters on which Reich has no personal knowledge and the affidavit is filled with rank hearsay. (Reich Depo. pp. 34-48). The affidavit directly conflicts with her testimony that she was not in a position to witness any harassment of Plaintiff. Katrina Thomas Katrina Thomas was a bookkeeper for M&S Auto Parts for over ten years, and left M&S in 2011. (Thomas Depo. pp. 9-10). She worked in the office located on the second floor. 32

(Thomas Depo. p. 21). Clay McCart worked in the warehouse, which is in a separate building from where Thomas worked, and at the front counter, which is on the first floor (Thomas Depo. pp. 25-6). Thomas could not see McCart working at either the counter or the warehouse from Thomas and Reich did not attend the morning on the premises and she

where she worked. (Thomas Depo. p. 26). meetings. (Thomas Depo. pp.29-30). rarely saw Plaintiff during the work day.

Plaintiff worked everywhere (Thomas Depo. p.31).

As far as observing other workers, Thomas testified "[O]n the counter, on the warehouse, on the yard, those people, what they're doing, I really have no idea, what (sic) clue." (Thomas Depo. p. 31). If anyone was harassing Plaintiff, Thomas admits she wasn't there to see it.

(Thomas Depo. p. 3 I). She has "no idea" if anyone harassed Plaintiff as she was "in her own little world." (Thomas Depo. p. 31). Thomas did not interact much with McCart, Denham or Pearson. (Thomas Depo. p. 32). She also had no opportunity to witness McCart, Denham or

Pearson interact with Plaintiff at all. (Thomas Depo. pp. 32-3). Thomas (Thomas does not know if anyone called Plaintiff a "nigger" outside her presence.

Depo. p. 41).

She does not know if Pearson or Bell called Plaintiff a "nigger".

(Thomas Depo. p. 43). The recycling yard was located far away on another part ofthe property. (Thomas Depo. p. 34). It was too far away for Thomas to see what was going on there. (Thomas Depo. p. 34). A lawyer interviewed Thomas at M&S and prepared an affidavit for her. (Thomas Depo, pp. 36-7). Paragraph Thomas made no changes 7 of Thomas's to it before signing it. (Thomas Depo. pp. 39, 55).

affidavit states that "the duties assigned to Michael Cooper never

required any demanding physical labor", but Thomas admits she doesn't know if Plaintiff was doing physical labor or not. (Thomas Depo. pp. 46-7; Thomas Depo. Ex. 1, Par. 7). Paragraph 8


of Thomas's

affidavit states that "Michael Cooper was never hired or promoted to deal with hiring or promotion and

minority customers, but Thomas admits she had no role in Plaintiffs

this statement is based solely on what Bell told her. (Thomas Depo. pp. 47-8, Thomas Depo. Ex. I, Par. 8). Paragraph 11 of Thomas's affidavit states that she (Thomas) "was terminated because another employee, Brenda Taylor, had reported my work performance was poor". (Thomas

Depo. Ex. I, Par. 11). However, at deposition, Thomas testified she had "no idea" whether Brenda Taylor had anything to do with her termination. (Thomas Depo. p. 23). The affidavit is

filled with statements represented as based on first hand knowledge, but Thomas admits these statements are based only on what she was told by others. (Thomas Depo. pp. 49-51). Thomas has "no idea" whether Plaintiff was doing a good job or a bad job or whether he was truthful to his supervisors. (Thomas Depo. p. 5 I). Nevertheless, her affidavit states he was fired for "poor job performance and for being untruthful and lying to his supervisors." (Thomas Depo. Ex. 1, Par. 21). Her affidavit also claims that allegations of discrimination against Bell are false and "egregious", but she admits she does not know what "egregious" means. (Thomas

Depo. pp. 51-2; Thomas Depo. Ex. 1, Par. 5). When Thomas was rehired, she given a 40% raise, from $500 per week to $700 per week. (Thomas Depo, p. 57). While Thomas no longer works for M&S, she admits she may want to return "if they want me back.". (Thomas Depo. p. 65). Clay McCart Clay McCart signed an affidavit which was full of false statements. He admits that

paragraph 23 was simply false. He admits that he falsely claimed to have personal knowledge of the statements in paragraphs 10,15-17,20-21,30-33,37,39-40. could offer no explanation for his decision to give false testimony. (McCart Depo., pp. 58-67). He


Roosevelt Thompson
Roosevelt Thompson signed an affidavit in the M&S conference room. (Thompson Depo. p. 52-3; Thompson Depo. Ex. 6). He was asked to sign the affidavit but can't remember by who. (Thompson Depo. p. 112). He made no changes to it. (Thompson Depo. p. 53). Thompson read and signed the affidavit under oath. (Thompson Depo. p. 85). Thompson doesn't know why he testified in the affidavit that Plaintiff was directed to fire Katrina Thomas, as he doesn't know if it was true. (Thompson Depo. p. 85). no role in cutting Plaintiff's pay. (Thompson Thompson played

Depo. pp. 93, 150). That decision was made by

Bell. (Thompson Depo. p. 94). Thompson (Thompson Depo. has p.

idea why Plaintiff's However,

pay was cut and has never known the reason. 40 of the affidavit, he states a


in paragraph


Depo. p. 102).

Thompson has no idea if Plaintiff's

pay cut was based on

race. (Thompson Depo. p. 157). Thompson believes everyone's pay was cut and he is not aware of any exceptions. (Thompson Depo. pp. 98-99). However, paragraph 33 of his affidavit states

there were exceptions to pay cuts. (Thompson Depo. p. 99). Thompson admits that paragraphs 13 and 26 of the affidavit he signed under oath are Thompson admits that his claim in the affidavit

simply false. (Thompson Depo., p. 106, 138,).

to having personal knowledge of the contents of paragraphs 8, 9, 11, 12,32-39 of the affidavit is false. (Thompson Depo. p. 133, 134-6, 150). John Denham Pearson testified that many workers Denham. are afraid of losing their jobs, including John

(Pearson Aff. ~ 19). John Denham testified that Bell is like a brother to him. (Denham

Depo. p. 62). Denham has worked for Bell for over 20 years. According to Denham, he never


heard Bell raise his voice at an employee,

act angry towards an employee or scream at an

employee. (Denham Depo. p, 84). According to Denham, Bell is just a calm, easy going, nice, kind employer. (Denham Depo. 84). He can think of no examples where Bell didn't act that way. (Denham Depo. p. 84). Pearson was Denham's best friend and he and Pearson rode together to work. (Denham Depo. pp, 6, 62). However, the last time he saw Pearson was when Pearson came to get his

check in August. (Pearson Depo, p. 13). Since Pearson's employment ended, Denham has not made any attempt to see or talk to Pearson, who is his best friend (and who married Denham's niece). (Denham Depo. pp. 6, 62, 81). When asked why he hasn't seen or talked to Pearson, Denham testified "I just haven't tried." (Denham Depo. p. 81).


A. Summary Judgment Standard

The standards applicable to motions for summary judgment are announced in Lau's Corp. v. Haskins, judgment, 261 Ga. 491 (405 SE2d 474) (1991). When ruling on a motion for summary a court must give the opposing party the benefit of all reasonable doubt, and the

evidence and all inferences and conclusions therefrom must be construed most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594,595-596 (370

SE2d 843) (1988). The trial court cannot, however, resolve the facts or reconcile the issues. Fletcher v. A max, Inc., 160 Ga. App. 692, 695 (288 SE2d 49) (1981). On motion for summary judgment, the burden of showing the absence of any genuine issue of material fact rests upon

movant, and the [* 170] party opposing the motion is given the benefit of all reasonable doubts and favorable inferences that may be drawn from the proof offered. Anderson v. Redwal Music

Co., 122 Ga. App, 247, 249 (176 S.E.2d 645) (1970). The United States Court of Appeals for the


Eleventh Circuit has stated that "[i]n general, summary judgment resolving claims of employment discrimination."

is an inappropriate

tool for

Grigsby v. Reynold Metals Co., 821 F.2d 590,

595 (lIth Cir.J987); Hairston v. Gainesville Sun, 9 F.3d 913, 931 (11th Cir.1993). B. The Evidence Is Sufficient To Show Racial and Retaliatory Harassment

Plaintiff has brought claims against Defendants under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. and the Civil Rights Act of 1866, 42 U.S.C. § 1981 for the severe or pervasive racial and retaliatory harassment to which they subjected him during his employment. The most recent decision in this jurisdiction on what evidence is sufficient to show

a racially hostile work environment under these statutes is Jones v. UPS Ground Freight, _ F.3d __ ,2012 U.S. App. LEXIS 11798 (J _,

CiL 2012). Further, in Gowski v. Peake,


2012 U.S. App. LEXIS 11245 (ll th Cir. 2012), the Eleventh Circuit, like every other

federal Circuit Court of Appeals, recognized a retaliatory harassment claim. In Gowski and Jones, the United States Court of Appeals for the Eleventh Circuit held that far less severe or pervasive environments of retaliation or racial discrimination, respectively,

were sufficient to support a claim for a hostile work environment in violation of Title VII and, in the case of Jones, Section 198 I. The Court described the standard thus: "[W]hen the workplace is permeated with [racially] discriminatory intimidation, ridicule, and insult[] that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VIl is violated." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116, 122 S. Ct. 2061, 2074 (2002) (internal quotation marks omitted). The same is true under § 1981. Edwards v. Prime, Inc., 602 F.3d 1276, 1300 (11th Cir. 2010). An employer is therefore liable to an employee for a racially hostile work environment under both statutes if the employee proves that: (1) he belongs to a protected group; (2) he was subjected to unwelcome harassment; (3) the harassment was based on his membership in the protected group; (4) it was severe or pervasive enough to alter the terms and conditions of employment and create a hostile or abusive working


environment; and (5) the employer is responsible under a theory of either vicarious or direct liability. ld. Jones, at *14~15.

for that environment

The only difference between the retaliatory harassment claim and the racial harassment claim is that, in the retaliatory harassment claim, Plaintiff must show, as the first element, that he opposed racial discrimination. by complaining Patrick Plaintiff has shown that, in this case, he opposed such

discrimination toward

directly to Defendant Bell about Bell's own use of racial slurs use of racial slurs and harassment of Plaintiff; and



harassment, including threats .of violence, by Clay McCart.

Defendants do not argue otherwise

nor, for that matter, address Plaintiff's hostile work environment retaliation claim in any respect. In Jones, the evidence of a racially hostile work environment was much more equivocal and involved much less basis for liability than in this case. As the Court stated there: Before this court, Mr. Jones premises his hostile work environment claim on the following actions: repeated placing of banana peels ... on his truck and not on Caucasian drivers' trucks; working around employees wearing confederate shirts on several occasions; racial comments made by Terrell to [Mr. Jones] directly; workers in the yard making racial statements in [Mr.] Jones's presence; being threatened by Caucasian employees after complaining about the racially hostile environment. Appellant's Jones, at Br. 24~25.



In this case, by contrast, Plaintiff has shown much more severe and overtly racist course of conduct, occurring much more often, and involving numerous threats of violence by the See pages 10 through 27, supra.

owner, Michael Bell, and by co-workers in Mr. Bell's presence.

Plaintiff was not only called a "nigger" by and at the direction of Defendants, he was forced by


Defendant Bell to admit that he was "[Bell's]

nigger". Plaintiff has further shown a deliberate

effort to foster a racially hostile work environment, even to the point of paying (at least) one coworker to racially harass Plaintiff. He was physically threatened by Bell and McCart; he was

referred to numerous variations of "dumb nigger", "my little nigger", "dumb ass nigger", etc.; he suffered a cut in pay and was forced to perform hard manual labor, despite being (purportedly) a salaried, managerial employee; and he was terminated for false and pretextual reasons. Defendants have attempted to separate and isolate each act of harassment, as if each act could be considered outside the context of the whole. However, the Courts have made it clear must be considered in the aggregate,

that the actions constituting a hostile work environment under the totality of the circumstances. both cumulatively Jones, at


46. The evidence of harassment is considered A plaintiff can prove a hostile work directed against his protected group, Reeves v. C.H

and in the totality of the circumstances.

environment by showing severe or pervasive discrimination even if he himself is not individually Robinson

singled out in the offensive conduct.

Worldwide, Inc., 594 F.3d 798, 808 (lIth Cir. 2010) (en bane). "Either severity or is sufficient to establish a violation of Title VII." Id. (emphasis in original). "In conduct, we consider its frequency ... ; its severity; whether or a mere offensive work performance." utterance; and whether it


evaluating allegedly discriminatory it is physically unreasonably omitted). threatening

or humiliating,


with an employee's

ld. at 808-09


Defendants also claim that much of Bell's conduct was not the product of racial animus. This argument is foreclosed by Reeves and Jones, supra, in which the Court held that evidence that some of the harassment was expressly based on discriminatory motivations was sufficient to permit a jury to infer that the remaining conduct was also caused by unlawful discriminatory


bias. Jones, at



Beckford v. Dep't of Corr., 605 F.3d 951, 960 (l1th Cir. 2010), citing

Reeves, at 810. Given the copious evidence that the harassment in question was based on race ~ including numerous occasions in which Bell, Pearson, or McCart threatened, denigrated, or

abused Cooper and then made immediately thereafter made racist remarks about Cooper to coworkers, Plaintff has submitted sufficient evidence on this issue. Further, Defendants do not even deny their retaliatory motivation. However, other

evidence of retaliatory conduct - the extreme violence directed towards Plaintiff in the work place, threatening witness Patrick Pearson, terminating him and repossessing his car, attempting to add Plaintiff as a Defendant in another lawsuit - all point to an employer for whom retaliation and intimidation are common practice. Finally, it is clear from the record evidence that Defendants are liable for the racial

harassment to which Plaintiff was subjected. Bell himself was the owner of M&S and, thus, his conduct subjects both Defendants to liability for his actions, as it cannot be argued that his given his total control over the corporation.

conduct was outside the scope of employment, Second, Pearson's

harassment of Cooper was explicitly within the scope of his employment, as

he was paid extra for the purpose of harassing Cooper. Third, Defendants' harassment of Cooper included two tangible adverse employment actions, one being the reduction in his pay and the other being his termination. Under the Supreme Court's decisions in Burlington Indus. v.

Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 2270, 141 L. Ed. 2d 633 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S. Ct. 2275, 2293, 141 L. Ed. 2d 662 (1998), Defendants are thus directly liable for the racially hostile work environment. Further, in order to avoid liability for harassment by supervisory employees - including Bell and McCart, both of whom had the authority to terminate Plaintiff. (Bell Depo., Ex. J 5, pp.


184-185) -- Defendant would have to plead and prove the Ellerth/Faragher

affirmative defense,

under which the employer bears the burden to show by a preponderance of the evidence "(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably preventive or corrective opportunities failed to take advantage of any

provided by the employer or to avoid harm otherwise."

Burlington Indus. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 2270, 141 L. Ed. 2d 633 (1998); Faragher v, City of Boca Raton, 524 U.S. 775, 807, 118 S. Ct. 2275, 2293, 141 L. Ed. 2d 662 (1998); see also Frederick v. Sprint/United ("Both elements must be satisfied Mgmt. Co., 246 FJd 1305, 1313 (lith

Cir. 2001)
and the

for the defendant-employer

to avoid liability,

defendant bears the burden of proof on both elements. ''). Defendants cannot do so. Here, Defendants had no policies prohibiting racial discrimination procedures retaliation. by which an employee could complain of harassment or retaliation nor any

on the basis of race or racist conduct, but Bell -

Plaintiff complained to Defendant Bell about Pearson's

who was, himself, one of the harassers - did nothing.

Even after Pearson resigned explicitly

because he would not agree to be supervised by a black employee, Bell rehired him and then paid him extra to racially harass Plaintiff. This is the antithesis of taking efforts to prevent or correct Accordingly, Defendants are liable

- rather than instigate and exacerbate - racial harassment. for the racial harassment. Finally, discrimination. it is clear that Defendants resented





Bell, Pearson, and McCart scoffed at Plaintiffs


and continued to

refer to him in the most demeaning and racist terms.

Bell paid Pearson and John Denham to

harass Plaintiff, with the goal of making him quit his job. Defendants have not offered any nondiscriminatory or retaliatory reason for this conduct.



The Evidence Is Sufficient To Show Racial and Retaliatory Bias In The Reduction In Plaintiffs Pay And In His Termination
shows, without dispute, that Plaintiff's compensation was reduced in

The evidence

November of 2007 by 15%. This was shortly after Plaintiffs regarding the fact that Bell had called him a "nigger". of Plaintiffs

first complaint to Defendant Bell

Defendant claims that the compensation

fellow managers was reduced by 10%. However, the evidence also shows that, at

the same time, Defendant Bell was providing white employees cash payments, under the table, without deductions or reporting to tax authorities. At least some of those payments were for the

express purpose of paying employees to racially harass the Plaintiff. (Pearson Affidavit). Bell's current explanation for that reduction, set forth in his Affidavit, is in direct conflict with his deposition testimony. As discussed below, with regard to the pretextual nature of his Motion to Strike, the Affidavit should be disregarded as a See, Prophecy Corp. v. Charles Rossignol, Inc.,

current explanation and in Plaintiffs

sham affidavit, under the Rossignol Doctrine. 256 Ga. 27,28,343

S.E.2d 680 (1986). The Rossignol Doctrine addresses the "Rule in Georgia . of a party that offers himself as a witness .. is to be construed most Prophecy Corp. v.

. . that the testimony

strongly against him when it is self-contradictory,

vague or equivocable."

Charles Rossignol, Inc., 256 Ga. 27, 28, 343 S.E.2d 680 (1986), citing, e.g., Douglas v. Sumner, 213 Ga. 82, 85 (1957). With regard to Plaintiffs termination, Defendants offer even less justification. They

imply that Plaintiff was not at work or able to work at the time of his termination, contrary to the record evidence. terminating Plaintiff. Defendants offer no actual evidence

yet this is

of the reason for race.

It is obvious that the true reason is because of Plaintiffs



Direct evidence of racial discrimination However, in a

Defendants dispute that there is direct evidence of racial discrimination.

long line of cases, the Eleventh Circuit Court of Appeals has found direct evidence where "actions or statements of an employer reflect[J a discriminatory to the discrimination or retaliatory attitude correlating v. Elsea,

or retaliation complained of by the employee." Caban-Wheeler

904 F.2d 1549, 1555 (11th Cir.1990). See (11 th Cir.1990)


v. Alton Packaging Corp., 901 F.2d 920, 923 statement that "if it was his company, he

(holding that general manager's

wouldn't hire any black people" and production manager's statement that "you people can't do a thing right" constitute direct evidence); E.E.o.C n. 3, 1072 (lIth
v. Beverage Canners, Inc., 897 F.2d 1067,1068

Cir.1990) (holding that plant manager's constant barrage of racial slurs and

statements such as "those niggers out there will not get anywhere in this company" constitute direct evidence); Sennello v. Reserve Life Ins. Co., 872 F.2d 393, 394, 395 (lIth Cir.1989)

(holding that statement that "we can't have women in management" constitutes direct evidence); Walters v. City of Atlanta, 803 F.2d 1135, 1141-42 (1 lth Cir.I986) (holding that memorandum requesting a new list of candidates because "current register .. , does not include any minority group representation" 633, 636 (lIth government constitutes direct evidence); Wilson v. City of Aliceville, 779 F.2d 631,

Cir.1986) (holding that mayor's statement that "he wasn't gonna let no Federal

make him hire no god-dam nigger" constitutes direct evidence); Miles v. M.N.C

Corp., 750 F.2d 867, 874-75 (11th Cir.1985) (holding that plant manager's statement that he wouldn't hire blacks because "half of them weren't worth a shit" constitutes direct evidence). The facts of this case include a "constant barrage of racial slurs" directed at Plaintiff by Bell. See pages 10-27, supra. Further, Bell not only permitted other employees to get away with using racial slurs toward Plaintiff, he actually paid at least two employees to do so, for the


purpose of forcing Plaintiff to quit his job. (Pearson Affidavit). evidence of racial discrimination,

Such evidence is clearly direct

both with regard to the reduction in Plaintiff's compensation

and with regard to Plaintiff's termination. 2. Circumstantial evidence of racial discrimination evidence of discrimination set out in McDonnell can take Douglas

Contrary to Defendants'

arguments, circumstantial burden-shifting

more forms than the comparative,


Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,36 L. Ed. 2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L. Ed. 2d 207 (1981). evidence can include evidence showing racial bias, even where such evidence Such

would not

constitute direct evidence. a)

In this case, Plaintiff has both forms of evidence available. Non-comparison circumstantial evidence held, "(t]he McDonnell Douglas

As the Eleventh Circuit has recently and repeatedly framework is not, however, the only way to use circumstantial summary judgment, and a 'plaintiffs [her] case.' Smith v. Lockheed-Martin,

evidence to survive a motion for

failure to produce a comparator does not necessarily doom 644 F.3d 1321, ] 328 (11 th Cir. 2011); see also Hamilton,

2012 U.S. App. LEXIS 9865, 2012 WL 1694589, at *3." Chapter 7 Trustee v. Gate Gourmet, lnc., _ F.3d _ 2012 U.S. App. LEXIS 11793 (lIth Cir. Ga. June 11,2012), citing Smith and F.3d _,2012 U.S. App. LEXIS 9865 (lIth

Hamilton v. Southland Christian Sch., Inc., _

Cir. May 16,2012).
If a plaintiff "presents circumstantial evidence that creates a triable issue concerning the employer's discriminatory intent," she "will always survive summary judgment." Lockheed-Martin, 644 F.3d at 1328. And a plaintiff may use "non-comparison circumstantial evidence to raise a reasonable inference of intentional discrimination" and thereby create a triable issue. Hamilton, 2012 U.S. App. LEXIS 9865, 20]2 WL 1694589, at *4; see also Lockheed-Martin, 644 F.3d at ] 328; Rioux v. City of Atlanta, 520 FJd 1269, 1277 (11th Cir. 2008) (holding that circumstantial evidence was sufficient to establish a prima facie case of race 44

discrimination even though the plaintiff did not present evidence of a comparator); cf.Alvarez v. Royal Atl. Developers, Inc., 610 FJd 1253,1264 (lIth Cir, 2010) ("The methods of presenting a prima facie case are flexible and depend on the particular situation."). Whatever form it takes, if the circumstantial evidence is sufficient to raise "a reasonable inference that the employer discriminated against the plaintiff, summary judgment is improper." LockheedMartin, 644 F.3d at 1328; accord Hamilton, 2012 U.S. App. LEXIS 9865, 2012 WL 1694589, at *4-5. Chapter 7 Trustee v. Gate Gourmet, Inc., supra, at Thus, as the Court can see, Defendants' Plaintiff may rely is simply incorrect. and circumstantial


15-16. characterization of the evidence on which

In this case, Plaintiff has shown more than ample direct Plaintiff has shown that Defendant Bell engaged conduct imaginable, designed to harass, See pages 10 - 27, supra. with regard to the Chapter 7

evidence of discrimination.

in a wealth of the most grotesque and reprehensible intimidate, and discriminate

against Plaintiff, because of his race.

Such conduct is (at least) circumstantial decision to reduce Plaintiffs

evidence of racial discrimination and terminate Bell's



Trustee, supra., Smith v.Lockheed-Martin,

644 F.3d l321, 1328 (lIth Cir. 2011); Rioux v. City of

Atlanta, 520 FJd 1269, 1281 (I lth Cir. 2008) (holding that the plaintiff established a prima facie case of racial discrimination other circumstantial when he did not present evidence of a comparator but presented

evidence that was sufficient); Vessels v. Atlanta lndep. Sch. Sys., 408 F.3d Cir.

763, 77] (1 Ith Cir. 2005); Lee v. Russell County Ed. of Educ., 684 F.2d 769, 773 (lIth 1982).

In fact, it is the "longstanding rule in this Circuit, that a victim need not provide evidence of a direct and express sexual demand to make a claim under the 'tangible employment action' analysis." Frederick, supra, 246 FJd at 1305 (citing Llampallas v. Mini-Circuits, Inc., 163 FJd

1236, 1246 (11 th Cir.1998)). "Thus, any time the harasser makes a tangible employment decision that adversely affects the plaintiff, an inference arises that there is a causal link between the 45

harasser's discriminatory

animus and the employment

decision." Llampallas v. Mini-Circuits,

Inc., 163 F.3d at 1247. "A Title VII plaintiff, therefore, may establish [his] entire case simply by showing that [he] was [racially] harassed by a fellow employee, and that the harasser took a tangible employment action against [him]." b) Comparative evidence under the McDonnell Douglas burden shifting analysis

Another method of proving discrimination via circumstantial evidence is the well-known burden shifting analysis established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L. Ed. 2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089,67 L. Ed. 2d 207 (1981). Under

that framework, the plaintiff must make a prima facie case by showing that (1) he is a member of a protected group; (2) he was qualified for his position; (3) he suffered an adverse

employment action; and (4) employment or disciplinary policies were differently applied to him. If a plaintiff can present a prima facie case through circumstantial evidence, the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for its actions. See Schaaf v.

Smithkline Beecham Corp., 602 F.3d 1236, 1243 (11th Cir. 2010). If the defendant satisfies this burden of production, the burden shifts back to the plaintiff, who must show that the articulated reason is merely a pretext for discrimination. ld. at 1244. [f the Defendants preponderance meet this burden, Plaintiff has the opportunity to show by a

of the evidence that the proffered reasons were pretextual. St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 511, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993). Where the plaintiff succeeds in discrediting the proffered reasons, the trier of fact may conclude that the defendant intentionally discriminated. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

148, 147 L. Ed. 2d 105, 120 S. CL 2097 (2000). 46

Plaintiff may show pretext by showing evidence of "such weaknesses, inconsistencies, incoherencies or contradictions in the ...


proffered legitimate reasons for its

actions that a reasonable factfinder could find them unworthy of credence." Cooper v, Southern Co., 390 F.3d 695, 725 (1 Ith Cir. 2004). Plaintiff may also show pretext by submitting evidence directly contradicting the articulated reasons, so long as the decision-maker personal knowledge of the contradictory (11th Cir. 2005). is shown to have had

facts. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763 evidence which

Finally, the Plaintiff may prevail by submitting circumstantial

directly shows discriminatory motivation.


Cooper is a member ofa protected group

There is no dispute that Cooper is black and, as such, is a member of a protected group.


Cooper was qualified for his position

Defendants have asserted that Cooper was not qualified for his position as a result of the receipt of Social Security disability benefits several months after his termination. Courts have recognized that in termination However, the

cases, the question of whether the plaintiff was

qualified to do the job may be inferred from the fact that the plaintiff was doing the job. "In cases where a plaintiff has held a position for a significant period of time, qualification for that v.

position sufficient to satisfy the test of a prima facie case can be inferred." Rosenfield Wellington Leisure Products, Inc., 827 F.2d 1493, 1495 n.2 (11th Cir. 1987).

A similar issue was addressed in Crapp v. City of Miami Beach, 242 F.3d 1017 (11 til Cir. 2001). In Crapp, the plaintiff lost his certification as a police officer, retroactive to the date of his termination. However, the Eleventh Circuit Court of Appeals rejected the notion that this would

render him "not qualified" for the position at the time of his termination. In this case, the FDLE's decision to suspend Crapp's certification-even though made retroactive to the date of his termination-does not prevent Crapp from 47

establishing his prima facie case. Because the FDLE did not make the decision to suspend Crapp's certification until after his termination, it cannot serve as a legitimate, nondiscriminatory reason for Crapp's termination; nor does it change the fact that at the time of the alleged discriminatory treatment, Crapp was certified to be pol ice officer, and was therefore qualified for his job. Defendant has made the same argument that was rejected in Crapp, asking the Court to

find that, because Plaintiff received Social Security disability benefits, he was not qualified to
perform the job that he was actually performing. Not only is this argument contrary to binding

precedent and factually nonsensical, as it asks the Court to find it undisputed that Plaintiff could not work at the time he was working, but it also ignores a number of other issues which are fatal to this argument. Defendants ignore the fact that Plaintiff was receiving Social Security disability benefits, based on a determination requirements of total disability, before he went to work for Defendants.

Thus, the

of the position in question were obviously such that he could perform them and, for the position in question.

thus, was "qualified"

See Pace v. Southern Railway System, 701

F.2d 1383, 1386 n. 7 (lIth Cir. 1983). ("in discharge or demotion cases, where a plaintiff has held a position for a significant period of time, qualification for that position, sufficient to satisfy the test of a prima facie case can be inferred.") Defendant also ignores the fact that the United States Supreme Court has held, the fact that employee determination meets the requirements for Social Security disability does not preclude a

that the employee is able to work for purposes of an employment discrimination

claim. In Cleveland v. Policy Management Systems, 526 U.S. 795, 143 L. Ed. 2d 966, 119 S. Ct. 1597 (1999), the Supreme Court addressed this precise issue.

I Plaintiff voluntarily reported to the SSA that he had obtained employment and, after some bureaucratic delay, his benefits ceased. He repaid those benefits paid to him while he was working.


Examining the SSDI program in detail, the Court concluded that there are "too many situations in which an SSDI claim and [a discrimination] claim can comfortably exist side by The

side" to warrant a presumption that the employee is not qualified to work. Id. at 802-03.

Supreme Court identified several ways an employee might be able to perform the essential functions of the job, but still be deemed "disabled" by the SSA. First, an SSDI applicant might be able to perform the work with a reasonable accommodation, reasonable accommodations Cleveland, but the SSA does not take possible

into account in determining whether an


applicant is disabled.

526 U.S. at 803, 119 S. Ct. at 1602. Second, an


applicant who can actually

perform the work may qualify as disabled under the impairment listings in the SSA's regulations. Id. at 804, 1]9 S. Ct. at 1602-03. Finally, an SSDI applicant may fall within the agency's ninemonth trial-work period used to facilitate reentry into the workforce. Id. at 805, 119 S. Ct. at 1603. Finally, as Plaintiff has shown in his response affidavit, part of the reason for his disability application following his termination from Defendants' employment was the


impact of the harassment he endured while working for Defendants and the effect Under such circumstances, an employer does not gain a benefit from a victims are

of his termination.

disability to which it contributed. presumptively

The Eleventh Circuit has held that discrimination

entitled to backpay and that Title VII claimants

are entitled to an award of

backpay where the defendant's discriminatory

conduct contributed to the plaintiff's disability. 172 F.3d 786, 794 (lIth

Lathem v. Dept. of Children and Youth Services,

Cir. ] 999), citing

Maturo v. National Graphics, Inc., 722 F. Supp. 916, 925 (D.Conn.1989). Thus, from the fact that he was actually doing the job in question, a jury could infer that he was capable of doing the job. Given the absence of any evidence that he was not able to



perform the job duties,



clear that summary judgment

for Defendants

is not

appropriate on this claim. (3) As noted discrimination above, Cooper suffered adverse employment to the racial harassment claims, actions Plaintiff's racial

in addition

claims are premised on two adverse employment actions:

First, the reduction in Both were

his pay from $1,000 per week to $850 per week and, second, his termination. materially adverse and constitute adverse employment

actions for purposes of Title VII and

Section 1981. "The Supreme Court has written so much about the Civil Rights Act of 1964, and Title VII of that Act, that it is easy to overlook the language of the statute itself." Dept. Of Carr., 400 FJd 883, 887-88 (11th Cir. 2005). Title VII provides that "It shall be an unlawful employment practice for an employer(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... race, color ... ; or (2) to limit, segregate, or classify his employees or applicants for employment in any manner which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such ind ividual's ... race, color, .... 42 U.S.C. 2000e2(a). This includes both actions causing economic loss and actions that do not 1441, 1447, 1453 (1 Ith Cir. Gillis v. Georgia

cause economic loss. Doe v. Dekalb County Seh. Dist., 145 FJd 1998) (a plaintiff "must demonstrate

that a reasonable person in his position would view the

employment action in question as adverse" and "[a]ny adversity must be material").


The Supreme Court

has restated in three separate decisions

that neither "pecuniary

injury" nor "tangible harm" are

required to state a claim under Title


See, Oncale v.

Sundowner Offshore Services, 523U.S. 75,118 S.Ct. 998, 1001 140 L.Ed.2d 201)(1998): We have held that this not only covers 'terms' and 'conditions' in the narrow contractual sense, but 'evinces a congressional intent to strike at the entire spectrum of disparate treatment ... in employment... The Court soon reiterated this principle in Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2283 141 L.Ed.2d 662 (1998): We have repeatedly made clear that although the statute mentions specific employment decisions with immediate consequences, the scope of the prohibition

is not limited to 'economic' or 'tangible' discrimination."
And again, in Burlington Industries v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2352, 633 (I998), repeated 141 L.E.2d

that "Title VII is violated by either explicit or constructive alterations in

the terms or conditions of employment."

Employment actions which cause

The reduction in pay was an adverse employment action
an economic loss are quintessential adverse

employment actions. See Hinson v. Clinch County Ed of Educ., 231 F.3d 821 (Ll th Cir. 2000), citing Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1452 (11 til Cir.1998) (reduction in pay is adverse). action. A reduction in pay is a "pecuniary The failure to restore a reduction injury" and, therefore, is an adverse employment in pay, where the employer does so for other

employees, is also an adverse employment action. Chapter 7 Trustee v. Gate Gourmet, Inc.,_
2 The Supreme Court has frequently repeated its "entire spectrum of disparate treatment" admonition. See, Pa. State Police v. Suders, 542 U.S. 129, 124 S.Ct. 2342, 2352, 159 L.Ed.2d (2004); Amtrak v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 2074, 153 L.Ed.2d 106 (2002); Oncale v. Sundowner Offshore Services, 523 U.S. 75, 118 S.Ct. 998, 1001, 140 L.Ed.2d 201)(1998); Harris v. Forklift Systems, 510 U.S. 17,114 S.Ct. 367, 370, 126 L.Ed.2d (1993); Price Waterhouse v. Hopkins, 490 U.S. 228,109 S.Ct. 1775,1791,104 L.Ed.2d 268 (1989).


F.3d ~

2012 U.S. App. LEXIS 11793 (II


Cir. Ga. June 11, 2012). Thus, this element of the

prima facie case is met as to this claim. (b) The termination was an adverse employment action action. Termination from

Plaintiffs employment


was also an adverse employment

is an adverse employment

action under Title VII and Section 1981.

Dixon v.

Hallmark Cos., 627 F.3d 849, 857 (lIth Cir, 2010). Thus, this prong of tile prima facie case is met. Defendants' began receiving inconsistency only argument to the contrary is that, months after his termination, Plaintiff disability benefits. This issue has been addressed above. There is no

between Plaintiff's

SSDI application - months after he was terminated - and the

undisputed evidence that he was capable of doing his job before his termination. Further, there is no dispute that Defendants actually terminated Plaintiff and that, when Plaintiff was terminated, he was at work doing his job. Any later determination of disability

would not render Plaintiff not qualified for purposes of the prima facie case.

Crapp v. City of conduct

Miami Beach, 242 F.3d 1017 (l lth CiL 2001). Further, to the extent that Defendants'

caused or contributed to Plaintiff s disability, Defendants will bear the burden of the harm they caused. (4) White employees were treated more favorably with regard to the pay cut

Defendants 15%.

have admitted that Plaintiff was the only employee whose pay was cut by Further, all of the other managerial

Every other employee had his pay cut by 10%.

employees had their pay restored, yet Cooper continued to labor under the 15% pay cut imposed on him in November of 2007. This is sufficient to establish differential treatment, establishing


the prima facie case of discrimination with regard to the cut in pay and requiring Defendants to produce admissible evidence of a non-discriminatory (5) Plaintiff replaced explanation for the different in treatment.

Cooper was replaced by a white employee and was

was treated more harshly than similarly situated white employees

by a white employee.

Either may suffice to show the prima facie case of racial Vessels v, Atlanta Indep. Sch. ,-~ys.,408 F.3d 763,


with regard to his termination.

771 (11th Cir. 2005); Batey v. Stone, 24 F.3d 1330, 1334 (11th Cir. 1994). Thus, Defendants must articulate and support by admissible evidence the reason for Plaintiff's termination, giving Plaintiff an opportunity to show pretext. (6) Defendants' rebuttal burden the burden now

Given that Plaintiff has presented a prima facie case of discrimination, shift to Defendants to provide a legitimate, non-discriminatory Le., the reduction of Plaintiff's Green, 41] U.S, 792 (1973). pay and Plaintiffs' discharge.

reason for the actions at issue, McDonnell Douglas Corp. v,

To accomplish this, the defendant must clearly set forth, through The explanation

the introduction of admissible evidence, the reasons for the plaintiff's rejection. provided must be legally sufficient to justify a judgment for the defendant.

Providing admissible evidence of the actual reasons upon which it relied - the actual comparative justifications motivation - is Defendant's burden. It is not enough to produce a hypothetical Increase Minority Participation

which might have motivated



Affirmative Change Today, Inc, v. Firestone, 893 F.2d 1189, 1194 (11th Cir. 1990) ("Introducing personnel records which may have indicated that the employer based its decisions on one or

more of the possible valid grounds did not suffice.") See Joshi v. Florida State Univ. Health Ctr. 763 F ,2d 1227, 1235 (11 th Cir. 1985), citing Eastland v, Tennessee Valley Authority, 704 F ,2d



(lIth Cir. 1983) cert. denied, 465 U.S. 1066, 104 S. Ct. 1415,79 L. Ed. 2d 741 (1984)

(Court may only consider qualifications actually relied on by employer). Instead, Defendant must offer testimony which directly shows the actual basis for each challenged decision. for discharge Jd, 1194-1195 and n. 5. "[Tjhere must be 'evidence that asserted reasons

were actually relied on' or 'the reasons are not sufficient to meet defendant's

rebuttal burden.' Lee v. Russell County Board of Education, 684 F.2d 769,775 (I lth Cir. 1982)" IMPACT, at 1195. The evidence must include facts which show what the decision-maker at the time when the decision was made. Walker v. Mortham, Cir.1998). Defendants have simply not produced such evidence. (a) The cut in pay pay was cut more summary knew

158 F.3d 1177, 1182 n. 8 (lIth

The only evidence Defendants have offered to explain why Cooper's than every other employee judgment motion. and, accordingly is the affidavit submitted

by Bell with Defendants'

However, this affidavit is entirely inconsistent with his deposition testimony should be stricken and disregarded. Instead, the Court should consider only

Bell's deposition testimony on this subject, in which he stated: Q Could you -- who made the decision as to how much people would have their pay cut? A Ithought it was like 10 percent for everybody or something like that.

Q Who made the decision how much pay would be cut?
AMe. Q And can you offer me any explanation for why Mr. Cooper's pay would be cut more than anyone else's? ANa. (Bell Depo., p. 89). He testified to the same effect later in his deposition:


Q Now, at that time in November of2007, Mr. Cooper had not been doing sales -according to Mr. Thompson's affidavit, Mr. Cooper had not been doing sales since at least April? A He may not have. Q Is that right? A Don't know. Q As of that time, is there any performance -- can you tell me whether prior to November of2007 there were any performance issues with Mr. Cooper? A Prior to 2007, I can't remember.

Q Can you identify any reason at all why Mr. Cooper's pay would have been cut
more than anybody else's? MR. TERRY: I think that's been asked and answered before.

MR. BILLIPS: I know. I just want to make sure he hasn't remembered something.
BY MR. BILLIPS: Q Can you identify any reason sitting here now why Mr. Cooper's pay would have been cut more than anyone else's? ANa. (Bell Depo., pp. 104- I 05). 3 This testimony was clear, unequivocal, and no explanation has been offered for the entirely inconsistent summary judgment motion. Bell has previously offered other testimony which he now admits was false (Compare Bell Depo., p. 90 to Bell Depo., Ex. 14, Par. 15; Bell Depo., pp. 76-77 to Bell Depo., Ex. 14, Par. 25 and Bell Depo., pp. 182, 184-185 to Bell Depo., Ex. 15, Interrogatory Response No.1 0). Bell affidavit testimony submitted in support of Defendants'

Although he then attempted to interject a performance justification, he was immediately forced to admit that all of the alleged performance justifications were from well after Plaintiffs pay was cut, such that they could not serve as a reason for cutting his pay more than that of any other employee. (Bell Depo., pp. 108-109).


has even given a prior affidavit with an entirely different and demonstrably false justification


cutting Mr. Cooper's pay more than other employees (Bell Depo., Ex. 14, Par. 40), [rom which Bell retreated in his deposition. unexplained alteration (Bell Depo., pp. 104-105, 108-109). must be disregarded. Thus, it is clear that his Thus, Defendants have

in his sworn testimony

offered no legally sufficient justification

for cutting Plaintiffs

pay more than that of other

employees or for failing to restore the pay cut when other employees pay was restored. (b) Defendants' The termination

sole justification for terminating Plaintiff ~ which they ask the Court to infer, This is

rather than offer direct testimony - is that he was ill and had taken some time off. insufficient to meet the rebuttal burden, as explained above.

IMPACT, at 1194-1195 and n. 5.

Defendants do not directly offer this as an explanation for a couple of reasons. First, were Defendants to testify that they fired Mr. Cooper for taking medical leave, such testimony could impose liability under the Americans with Disabilities Act and/or the Family and Medical Leave Act. Plaintiffs terminating illness. Second, Bell has testified that he was unaware of the extent of Therefore, he could not have relied on it in 158 F.3d ] 177, 1182 n. 8 (I lth

(Bell Depo., pp. 155-156). employment.


Walker v. Mortham,

Cir.1998). Finally, prior to summary judgment, Bell gave an entirely different, inconsistent, and demonstrably false justification, asserting that it was because Plaintiff was performing poorly or

was "untruthful."

(Bell Depo., Ex. 14, Par. 54~57).

When asked during discovery to identify a single occasion on which Plaintiff was ever untruthful, Defendants could offer nothing whatsoever. (Bell Depo., Ex. 15, Interrogatory No.5; termination ~ what is other than Bell's

Bell Depo., p. 184). Further, the event allegedly giving rise to Plaintiffs given as the performance justification ~~ is unsupported

by any evidence


extremely equivocal testimony and is contrary to the undisputed evidence. pp. 74-77; Bell Depo., pp. 157-162).

(Thompson Depo.,

It is not enough for Defendant to offer the explanation on which it intends to rely in a
brief from counsel. As the Supreme Court stated, in addressing this issue: These statements imply that the employer's "proffered explanation," his "stated reasons," his "articulated reasons," somehow exist apart from the record--in some pleading, or perhaps in some formal, nontestimonial statement made on behalf of the defendant to the factfinder. ("Your honor, pursuant to McDonnell Douglas the defendant hereby formally asserts, as its reason for the dismissal at issue here, incompetence of the employee.") Of course it does not work like that. The reasons the defendant sets forth are set forth "through the introduction of admissible evidence." Burdine, 450 U.S. at 255, 101 S.Ct. at 1094.

St. Mary's Flonor Crr. v. Hicks, 509 U.S. 502, 522-23, ] 13 S.Ct. 2742, 2755, 125 L.Ed.2d 407 (1993) (emphasis omitted, parenthetic in original). the decision-maker This showing requires, at least, evidence that

was aware of and in fact relied on the fact in question.

This Court has expressly held that under Burdine, there must be "evidence that the asserted reasons ...were actually relied on" or "the reasons are not legally sufficient to meet the defendant's rebuttal burden." [citations omitted]. [In Univedo v. Steves Sash & Door Co, 738 F.2d 1425, 1429 (5th Cir. 1984), the Court stated: "Appellant next argues that the record is replete with nondiscriminatory reasons [for its employment actionsJ ....The difficulty here, however, is that the defendant never articulated to the magistrate that these were in fact the reasons for the particular challenged action.

IMPACT v. Firestone, 893 F.2d 1189, 1193-94 (lIth Cir. 1990). This showing must be made by direct evidence. Id, n. 5.

Because the only explanation that Defendants have offered in support of their summary judgment motion is the suggestion by counsel that Plaintiff was fired because of his illness, and


there is no evidence to support that contention,


have failed to meet the rebuttal

burden and the Court may not grant summary judgment on that basis.

In showing that Defendants' the Court must consider retaliatory actions. purpose.

Evidence of pretext articulated reasons ~ had such been offered ~ are pretextual, evidence of Defendants' racist and

the direct and circumstantial

The evidence cited above at pp. 10-27 and 35 - 43 and is sufficient for that 256 F.2d 1095, 1105, 1107 (lIth Cir. 2001); Sledge v. Beaver v. Rayonier, Inc., 200 F.3d 723, 730 (1999);

Bass v. Bd of Commissioners,

Goodyear, 275 F.3d 1014

n r" CIL 2001);

Damon v. Fleming Stores, 196 F.3d 1354, 1361 (lIth Cir. ]999); Ross v. Rhodes Furniture, 146 F .3d 1286, 1291 (11 th Cir. 1998); Sweat v. Miller Brewing, 708 F .2d 655, 658 (II

Cir. 1983).

Further, evidence that the employer has offered false testimony is extremely relevant to the question of pretext, as it shows that the employer is presenting a "complex web of post hoc rationalizations" supporting a finding of pretext. Holley v. Seminole County School Dist., 755 it must be admitted, are not all that In this case, Defendant Bell

F.2d 1492, 1505 (11 th Cir. 1985). Defendants rationalizations,

complex, except to the extent they are based on blatant falsehoods.

testified falsely himself, threatened employees in order to coerce false testimony, and obtained false testimony from his employees. Finally, the justifications by Bell's own testimony, See pp. 40 ~ 52.

offered by Defendants are directly disputed, among other things pretext. Missouri State Life Ins. Co. v.

which directly establishes

Roper, 44 F.2d 897, 888 (5111 Cir. 1930); Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189,1194-1195

(Ll" Cir. 2004) (Once decision-maker's

credibility is damaged, a rational jury

could infer that employer was dissembling to cover up a discriminatory admitted falsehoods, shifting explanations, and directly contradictory


Given Bell's the Court


simply cannot consider Defendants'

explanations to be undisputed and summary judgment must

be denied on Plaintiff Title VII and Section 1981 racial discrimination and retaliation claims.


Defendants Sought To Intimidate and Retaliate Against Plaintiff By Having Him Named As A Defendant In the FLSA Lawsuit

Shortly after Plaintiff was identified as a witness who was supporting the claims of other employees in a federal lawsuit under the Fair Labor Standards Act, Defendants sought to have him named as a Defendant in that case and assessed damages and attorneys' fees. This Motion was entirely frivolous and was for no reason other than to retaliate against Cooper and intimidate him into not testifying for these employees. 1.

Retaliatory legal proceedings are actionable under the FLSA
on Plaintiffs FLSA claim, Defendants claim that,

In moving for summary judgment

because he did not suffer an adverse employment action, he suffered no damages and cannot state a claim under the FLSA. This is simply incorrect.

The law is clear that a legal proceeding brought by an employer against an employee can constitute an act of unlawful retaliation under another federal statute governing employment rights when the lawsuit is filed with a retaliatory motive and lacking a reasonable basis in fact or law. See Bill Johnson's Rests. v. NLRB, 461 U.S. 731, 744,103 S. Ct. 2161, 76 L. Ed. 2d 277 L. Ed.

(1983); see alsoBE & K Constr. Co. v. NLRE, 536 U.S. 516, 528-37, ]22 S. Ct. 2390,153 2d 499 (2002) (affirming Bill Johnson's

holding, stressing that only those lawsuits that are

retaliatory in intent and baseless in fact or law do not implicate First Amendment and federalism concerns); Chavis v. Clayton County Sch. DiS!., 300 F.3d 1288 (lIth Cir. 2002). 59

Defendants argue that Plaintiff suffered no harm from their actions.

However, Plaintiff

has testified to the emotional turmoil he suffered, after learning that Defendants were seeking untold sums of money from him in that case. This rationale rests

outdated precedent. The Supreme Court has now clearly rejected S. Ct. 843,1361. Ed. 2d 808

this view. In Robinson v. Shell Oil Co., 519 U.S. 337, 345-46,117

(1997), the Court explicitly held that for purposes of Title VII's retaliation provision, "employee" encompasses former, as well as current, employees. Even more recently, in Burlington N. &

Santa Fe Ry, Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 2414, 165 L. Ed. 2d 345 (2006), the Court held that a Title VII retaliation plaintiff need not allege or prove an ultimate adverse employment action, because "[t]he scope of the anti-retaliation provision extends beyond


or employment-related

retaliatory acts and harm." The Court ruled that Title

VII's retaliation provision

requires a plaintiff simply to allege and prove "that a reasonable

employee would have found the challenged action materially adverse, which in this context means it weJl might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. at 24 15 (citations and internal quotation marks omitted). are

Although these are NLRA and Title VII cases, the Courts (and even Defendants) nearly uniform in considering the authoritative

body of NLRA and Title VII case law when

interpreting the comparable provisions of other federal statutes. See, e.g., McKinnon v. Nashville Banner Publ'g. Co., 513 U.S. 352, 357-61,115 the Age Discrimination S. Ct. 879,130 L. Ed. 2d 852 (1995) (interpreting

in Employment Act ("ADEA")); Garcia v, Johanns, 370 U.S. App. D.C.

280, 444 F.3d 625, 631-33 & n.7 (D.C. Cir. 2006) (interpreting the Equal Credit Opportunity Act); Davidson v. Midelfort Clinic, Ltd., 133 FJd 499,511 (7th Cir. 1998) (interpreting the

retaliation provision of the Americans with Disabilities Act). Of particular note here, courts have


looked to Title VII cases in interpreting

the FLSA. See Shaliehsabou

v. Hebrew Home of

Greater Wash., Inc., 363 F.3d 299, 305~07 (4th CiL 2004); Nichols v. Hurley, 921 F.2d 1101, 1103-10 (10th Cir. 1990); Brewster v. Barnes, 788 F.2d 985, 990 & n.7 (4th Cir. 1986). There are no differences in either the language or intent of the two statutes regarding the type of adverse action their retaliation provisions prohibit. The FLSA and Title VII contain identical general definitions of "employee." Compare 29 U.S.C. § 203(e)(l) (2000) (FLSA) with 42 U.S.C. § 2000e(f) (2000) (Title VII); see also United States v. Rosenwasser, 362,65 S. Ct. 295,891. more comprehensive 323 U.S. 360,

Ed. 301 (1945) (declaring with regard to the FLSA that "[aJ broader or

coverage of employees within the stated categories would be difficult to

frame. "). Moreover, both statutes provide the same broad definition of a prohibited retaliatory act; each statute renders it unlawful to "discriminate against" any employee who has engaged in the described protected activities. Compare 29 U.S.C. § 215(a)(3) (FLSA) with 42 U.S.C. § 2000e~3(a) (2000) (Title VII). The similar statutory language suggests that the Supreme Court's interpretation of "employee" in Robinson -- to include former as well as current employees -- and definition of retaliatory acts in Burlington Northern similarly apply in the FLSA context. Although the two statutes seek to combat separate workplace problems, the purpose of their retaliation provisions is one and the same=namely, to secure their substantive protections

"by preventing an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic guarantees." Burlington Northern, 126 S. Ct. at 2412. Indeed, in Robinson, the Court relied on a FLSA case to support its conclusion that the provision was to "[mjaintainj] unfettered access

"primary purpose" of Title VII's anti-retaliation to statutory remedial mechanisms." Furthermore, the underlying

519 U.S. at 346 (citing Mitchell, purpose of the FLSA, although

361 U.S. at 292~93). different, is just as



expansive and important as that of Title VII. See 29 U.S.C. § 202(a) (2000) (explaining the purpose of the FLSA as the elimination of "labor conditions detrimental to the maintenance of the minimum workers"). The Fourth Circuit Court of Appeals have held similarly. In Darveau v. Detecon, Inc., standard of living necessary for health, efficiency, and general wellbeing of

515 F.3d 334 (4th CIL 2008), the Fourth Circuit held that a lawsuit against a former employee was actionable under the FLSA. The same result was recently reached by the Northern District

of Georgia, in Obester v. Lucas Assocs., 2010 U.S. Dist. LEXIS 144 162 (N D. Ga. 20 I0). This Court should agree.


The Motion to add Cooper as a Defendant was frivolous

In seeking to join former employee Michael Cooper a s defendant, Defendants asserted:
Since Michael Cooper was an active participant in every aspect of M&S's employment relationship with Supervised Plaintiffs, adding Michael Cooper as a party defendant is critical to afford complete relief and full adjudication of this action. Moreover, Defendants face a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because they will be responsible for a greater proportion of any damages awarded to Supervised Plaintiffs, then they would be if an additional defendant shared the burden. Furthermore, the interests of judicial economy warrant the addition of Michael Cooper since if Supervised Plaintiffs can prove liability and damages, Defendants could seek contribution by Michael Cooper and his joinder saves the need for a subsequent action. (Def. Brief, p. 9). The problem for Defendants is that the law is clearly established that there is no right of contribution or indemnification between employers under the FLSA. Herman v.

R.S.R. Security Services, Ltd., 172 FJd 132, 133 (2d Cir, 1999). Citing Northwest Airlines, Inc.

v. Transport Workers Union, 451 U.S. 77, 67 L. Ed. 2d 750, 101 S. Ct. 1571 (1981), the Court
concluded there was no right to such relief under the FLSA Cases from other circuits support this conclusion and have followed Northwest's


reasoning with respect to the FLSA. See Martin v. Gingerbread House, Inc., 977 F.2d 1405, 1408 (lOth Cir. ] 992)("a third party complaint by an employer seeking indemnity from an employee is preempted" by the FLSA); Lyle v. Food Lion, Inc., 954 F.2d 984, 987 (4th Cir. 1992)(court federal statute," i.e.,

should not "engraft an indemnity action upon this otherwise comprehensive

the FLSA); LeCompte v. Chrysler Credit Corp., 780 F.2d 1260, 1264 (5th Cir. 1986) (same). See also Chao v. AKI Industries, Inc. 2007 U.S. Dist. LEXIS 46022 (D. Utah, 2007)(no right to indemnification or contribution in FLSA cases reasoning that "if the employer is aware that it

and it alone must bear the economic consequences for any violation of the Act, there would be an added incentive to resist" pressures that may be placed upon it by third parties."); Lowe's Cos. v. Varnell. Struck & Assoc., 2008 U.S. Dist. LEXIS 108144 (D.N.C. 2008)(to permit


would "gut the remedial nature of the FLSA"); Gustafson v. Bell Atl. Corp., 171

F.Supp. 2d 311 (D.N.Y. 2001)("Even assuming JAG were found culpable for FLSA violations as plaintiffs "co-employer," the right to indemnification is still absent.") . The frivolity of Defendants' position is further shown by a decision earlier the same year

in Villareal v. EJ Chile, lnc., 601 F.Supp2d 10II (D. Ill. 2009), in which the district court held: No cause of action for indemnity by an employer against its employees who violate the Act appears in the statute, nor in forty years of its existence has the Act been construed to incorporate such a theory. Defendants have not presented, and this court's research has not disclosed, any decision by a federal court to date recognizing a claim for indemnity or contribution by an employer against an employee in the employee's action under the FLSA.

Defendants retaliatory.

The Motion to add Cooper was retaliatory
Motion to add Plaintiff as a Defendant ostensible justification in the FLSA lawsuit was clearly was that Plaintiff was a supervisor, for the payment of yet

Although Defendants'

Defendants have acknowledged

that he actually did not have responsibility

overtime and that there were other supervisors who did, in fact, have such responsibility,


Defendants did not seek to add those individuals as Defendants. 178). As with Plaintiff's

(Bell Depo., pp. 143-146, 177-

Title VII and Section 1981 claims, comparative proof is sufficient to in that (a) Ms. Reich was

establish a prima facie case and such proof has been established,

(according to Bell) responsible for the nonpayment of overtime; (b) Defendants did not seek to add Ms. Reich as a Defendant in the FLSA lawsuit; (c) Ms. Reich was not providing testimony and assistance to the employees in the overtime lawsuit; (d) Defendant Bell knew that Plaintiff was providing testimony and assistance to the employees in the FLSA lawsuit. 73); and Defendants sought to add Plaintiff as a Defendant in that case. Where such comparative evidence has been offered to show a prima facie case, it requires the Defendant comparative ("Comparative - as part of its rebuttal burden - to provide See admissible evidence Cir. of that 1998) (Bell Depo., p.


Walker v. Mortham, 158 FJd

1177 (l lth

evidence lies at the heart of a rebuttal of a prima facie case of employment

discrimination .... '"), citing East v. Romine, Inc., 518 F.2d 332, 339 (5th Cir.l975).

Also see,

Williams v. De Kalb County, 577 F.2d 248, 255 (5th Cir. 1978).
Defendant cannot meet that burden.


in this case,

When asked why Defendants did not seek to add Reich as a Defendant, while seeking to add Plaintiff, Bell could offer no reason. (Bell Depo., p. 74, 179). Thus, the Court must presume that the reason is retaliatory. 4. The emotional injury is sufficient to show retaliation

Although Defendants claim that Plaintiff can show no cognizable injury, the Courts have made it clear that any act of retaliation is actionable - and can give rise to a recovery for emotional distress damages - if it "'might have dissuaded a reasonable worker from making or


supporting a charge of discrimination.' 68, 126 S.Ct. 2405,2415, supra, at

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,

165 L. Ed. 2d 345 (2006) (quotation marks omitted)." Gate Gourmet,



Clearly, seeking to add Plaintiff as a Defendant - and seeking thousands of fees and damages - is "materially adverse" and is likely to

dollars from him in attorneys'

dissuade him from supporting the FLSA plaintiffs. Phillips v. MJ. Quality Lawn Maint., Inc., 2010 U.S. Disr. LEXIS 111979 (S.D. Fla. 2010) (finding that Court's "routinely lawsuits constitute retaliation under the FLSA). Further, the FLSA supports recovery for emotional distress damages in retaliation claims. See Travis v. Gary Community Mental Health Center, Inc., 921 F.2d 108, 112 (7th Cir. 199 I); Moore v. Freeman, 355 F.3d 558, 564 (6th Cir. 2004). The Eleventh Circuit has recognized that the evident purpose of the civil damages provision of the FLSA, is to provide full compensation to the plaintiff aggrieved by violations of the anti-retaliation Unlimited Concepts, Inc., 208 F.3d 928, 934 (11th In Snapp, the Court specifically provisions of the Act. Snapp v. find" that

en. 2000).
the availability of punitive damages, not


damages for mental anguish, under the FLSA but, in doing so, also discussed the compensatory purpose of the FLSA civil damages provision, section 216(b). Id. Considering the plain language of the statute and applying the statutory construction rejected the contention principle of ejusdem generis, the Court

that punitive damages are available under the statute for retaliation

claims. Id. Thus, the Court stated, "as noted above, the statute provides that 'any employer who violates the provisions of section 215(a)(3) of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 21S(a)(3) of this title, including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages."

Id. at 933-34. The Court recognized that the enumerated forms of relief were not intended to be

fully inclusive but found that all of the listed categories have as their common denominator the goal of permitting full compensation to the successful plaintiff. rd. at 934. That is to say, the goal of the damages provision is to attempt, as close as possible, "to put the plaintiff in the place she would have been absent the employer's misconduct." punitive damages, being definitionally Id. The Court reasoned, in contrast, that

punitive in nature, "would be out of place in a statutory

provision aimed at making the plaintiff whole." ld. (emphasis added). The Court further recognized that in retaliation cases '''employment, reinstatement.

promotion, and the payment of wages lost' may not fully compensate the plaintiff." Id. (citations omitted). "Congress provided for, in addition, 'such legal or equitable relief as may be

appropriate to effectuate the purposes of section 215(a)(3)' because the kinds of relief that a district court may need to award to compensate the plaintiff full y will vary with the facts of each case." Id. at 937. Offering front pay as one non-enumerated measure of relief, the Court directed

that district courts may have to "exercise some creativity" in fashioning damages remedies in a retaliation case within the confines of "section 216(b)'s compensatory purpose." Id, Certainly, an argument could be made that the availability of liquidated damages would be sufficient to fully compensate a plaintiff with proof of actual economic damages but only minor, subjective mental anguish occasioned by an employer's violation of the Act. However, in a case involving only nominal economic losses but proved retaliation consisting of concerted, directed harassment, resulting in grave emotional distress, such nominal economic damages or the available doubling of those damages would be insufficient to make the plaintiff whole. Damages for mental anguish would be the necessary compensatory section 215(a)(3)." 2000)(damages See e.g, Eleventh "legal relief appropriate to effectuate the purpose of

Circuit Pattern Jury Instructions

(Civil) § 1.3.1 (West in nature).

for mental anguish and emotional distress are compensatory


Finally, the Court in Snapp reflected upon the Supreme Court's admonition that "the FLSA is 'remedial and humanitarian in purpose,' and that it 'must not be interpreted ... in a

narrow, grudging manner." Id. at 939 (citing Tennessee Coal, Iron & R. Co. v. Muscoda Local

No. 123,321

U.S. 590,597,88

L. Ed. 949, 64 S. Ct. 698.321 U.S. 590, 64 S.Ct. 698, 703, 88

L.Ed. 949 (1944». Citing with agreement the Eleventh Circuit's reasoning in Snapp, the Sixth Circuit in Moore, 355 F.3d at 563-64. expressly held that consistent with the broad authority congress granted in promulgating the damages provision regarding retaliation under the FLSA. emotional distress damages are an available form of compensatory relief under the statute. Also employing the doctrine of ejusdem generis, the Court reasoned that damages for emotional distress are similar in type to the listed forms of relief in the statute in that the purpose served by them is to compensate the victim fully for proven losses. rd. The Moore Court also noted that although the circuits are split on the issue of the availability of punitive damages under the FLSA at least three other circuits directly or indirectly have allowed emotional distress awards under the FLSA to stand. Id, at 564 (citing Travis v. Gary Community Mental Health Center, Inc., 921 F.2d lOS, 112 (7th Cir. 1991); Broadus v. OiK. Indus., Inc., 238 F.3d 990,992 Ackerley, (8th Cir. 2001); Lambert v.

180 F.3d 997, 1011 (9th Cir. 1999»); See also Johnston v. Davis Security, Inc., 217 F. Snapp with approval and finding emotional distress damages in a retaliation claim brought under the

Supp. 2d 1224, 1232 (D. Ut, 2002)(citing

damages could be available as compensatory FLSA).

Thus, Defendants may properly be held liable for the emotional distress Plaintiff suffered as a result of their retaliatory actions.



Plaintiffs Retaliatory Must Go To The Jury


Claims And Neglect To Prevent Claims

42 U.S.c. conspiracy testimony.

§ 1985(2) provides a cause of action for any person who is harmed by a

to prevent testimony in a federal court or to harm such person on account of his It states, in relevant part:

(2) If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified ... (3) ... in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against anyone or more of the conspirators. 42 U.s.C.

§ 1985. Bell admitted that he was aware Cooper was providing testimony in the

federal FLSA lawsuit, which is protected activity under 1985(2). In order to show a § 1985(2) claim, Plaintiff must show (1) the existence of a conspiracy, (2) retaliation spawned by the attendance or testimony in federal court, (3) an act in furtherance of the conspiracy, and (4) injury to Plaintiff. Aque v. Home Depot US.A., Inc" 629 F. Supp. 2d 1336, 1343 (N.D. Ga. 2009) (Martin, J.). A conspiracy is an "agreement between parties to inflict a wrong against or injury upon another .... v. City ofAtlanta,

Id. at ] 346 (quotations and citations omitted). Reid
Morast v.

2010 U.S. Dis!. LEXTS 26766, 51-52 (N.D. Ga. Mar. 22, 2010).

Lance, 807 F.2d 926, 929-30 (l lth Cir. 1987); Wagner v. Daewoo Heavy Indus, Am, Corp., 289 F.3d 1268, 1271 n. 4 (lith Cir. 2002). Purely economic intimidation or coercion is sufficient to support a cause of action. McAndrew v. Lockheed Martin Corp., 206 F .3d 1031, 1036 (lIth Cir. 2000) (en bane); Aque, at 1344-1345, citing Haddle v. Garrison, 525 U.S. 121, 125, 119 S. Ct.


489, 142 L. Ed. 2d 502 (1998) and O'Neal v. Garrison, 263 F.3d 1317, 1321 (lIth Cir. 2001) .. Specifically, just as under the FLSA, a retaliatory lawsuit intended to retaliate against a witness for prior testimony or to deter a potential witness from providing future testimony is actionable under Section] 985(2). a. Conspiracy Proof of conspiracy requires an "agreement between parties to inflict a wrong against or injury upon another, and an overt act that results in that damage." Northrup v. Conseco Fin. Corp., ]41 F. Supp. 2d 1372, 1375 (M.D. Ga. 2001). While, "the existence of an agreement in a conspiracy case is rarely proven by direct evidence that the conspirators ... formally entered or is through

reached an agreement. circumstantial evidence."

The more common method of proving an agreement

United States v. Ervin, No. 07-13204, 2008 WL 4997194 (11 th Cir.

2008) (citation and internal quotations omitted). The fact that the conspirators are related entities does not bar the claim. Each of the

conspirators ~ Bell and M&S Auto -- are distinct "persons" in the eyes of the law, by virtue of their legal status as natural or corporate persons. Britt v. Suckle, 453 F. Supp. 987 (E.D. Tex. Because the claims

1978) (interconnected joint ventures were counted as multiple "persons").

here involve a conspiracy to punish a witness in retaliation for past testimony and to deter future testimony, the claim would not be barred even if the Defendants were all part of (or employed by) a single entity. McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036 (llth Cir. 2000)
(en bane).

b. Deterrence or retaliation against before a United States court

a witness

from attending

or testifying

Section 1985(2) has two clauses. The first clause prohibits efforts to intimidate (deter) or retaliate against witnesses in federal court proceedings. Chavis v. Clayton County Sch. Dist., 300 69

F .3d 1288, 1293 (lIth

Cir. 2004) ("[TJhe first clause of section 1985(2) specifically prohibits " and at 1291, quoting Haddle

injuring a witness on account of his testifying in federal court ....

v. Garrison, 525 U.S. 121, 125, 119 S. Ct. 489, 492 (1998) ("The gist of the wrong at which § 1985(2) is directed is ... proceedings "). [the] intimidation or retaliation against witnesses in federal court

c. an act in furtherance of the conspiracy
Defendant's took actions in furtherance of the conspiracy when they sought to name

Cooper as a Defendant

in the federal FLSA lawsuit, yet did not do so with regard to other of overtime in

employees who they were aware were actually responsible for the non-payment that case.

United States v. Tison, 780 F.2d 1569, 1573 (l1th Cir. 1986) (finding a threatened of witness

state civil action for slander was a "course of conduct" that met the definition harassment), Northrup

v. Conseco Fin. Corp, 141 F. Supp, 2d 1372 (M.D. Ga. 2001), aff'd

Northrup v. Conseco Fin. Corp., 281 F.3d 1285 (11th Cir. 2001); Spurlock v. Thompson, 330 F.3d 791 (6th Cir, 2003) (denying immunity to prosecutor who threatened legal action against witness). The selective prosecution of Plaintiff - who had no responsibility for the non-payment

of overtime, but was providing testimony favorable to the employees - is sufficient evidence to show that this was an action in furtherance of the retaliatory agreement between Bell and M&A. d. injury to Plaintiff The injury to Plaintiff is intimidation and emotional distress he suffered when Defendants sought to prevent his testimony. damages. Plaintiff seeks a recovery of compensatory and punitive

These are cognizable claims under Section 1985(2). See Haddle v. Garrison, 525 U.S. 1223 (lith Cir. Fla. 2003). In

121, 125-26, 119 S. Ct. 489 (1998); Farese v. Scherer, 342 FJd

Haddle, the Supreme Court explained that "the gist of the wrong at which § 1985(2) is directed is


not deprivation proceedings."

of property, but intimidation

or retaliation against witnesses

in federal-court

In Farese, the Court found that a witness had standing to pursue a lawsuit under

§ 1985(2) based on the filing of lawsuits intended to intimidate him because of his participation in federal proceedings." In fact, in a § 1985(2) claim, a party is entitled to recover punitive damages even in the absence of compensatory Ga. Dec. 8, 2009): Even more relevant to Plaintiffs § 1985(2) claim here, numerous circuit courts have not required proof of actual or nominal damages to support a punitive damages award in civil rights cases. See Abner v. Kansas City S. R.R. Co., 513 F.3d 154, 160 (5th Cir. 2008) ("We agree with the conclusions of several of our sister circuits that a punitive damages award under Title VII and § 1981 need not be accompanied by compensatory damages. "); Timm v. Progressive Steel Treating, 137 F.3d 1008 (7th Cir. 1998) (punitive damages available absent actual damages in Title VII or analogous cases); Alexander v. Riga, 208 F.3d 419 (3d Cir. 2000); Cush-Crawford, 271 F.3d 352 (2d Cir. 2001) C'to make enforcement of the jury's award of punitive damages tum on whether the jury also awarded purely symbolic nominal damages carries a likelihood of defeating the jury's intention as a result of confusion"). In fact, in Davis v. Locke, 936 F.2d 1208 (1 Ith Cir. 1991), the Eleventh Circuit held that "punitive damages may be awarded in a § 1983 action even without actual loss." ld. at 1214 (citing Wilson v. Taylor, 658 F.2d 1021, 1033 (5th Cir. Unit B. Oct. 1981)). "An award of punitive damages is authorized in a civil rights case if 'the defendant was motivated by an evil motive or intent, or there must be reckless or callous indifference to federally protected rights.'" Id. (quoting Anderson v. City of Atlanta, 778 F.2d 678,688 (11 th Cir. 1985)). Thus, Plaintiff has shown injury and a right of recovery sufficient to support this claim. Given the undisputed evidence of Defendants' retaliatory conspiracy, he is entitled to judgment. damages. Forsberg v. Pefanis, 2009 U.S. Dist, LEXIS 114144 (ND.

e. Defendants' Conduct Is An Actionable Conspiracy
This is not a case where motive or intent can be disputed. Defendants have failed to offer any non-retaliatory


for their actions against Plaintiff, while not taking the same

The Court dismissed the case, however, on the basis that a conspiracy cannot be based solely on an agreement between an individual and his attorney. In this case, the conspirators who are sued do not include counsel.


action towards those persons actually responsible.

This conduct strikes at the heart of the or coercion of witnesses, no less than

integrity of the judicial process. Economic intimidation

physical coercion, degrades the reliability of the evidence upon which the finder of fact relies. United States v. Pacelli, 491 F.2d 1108, 11] 3 (2d Cir.), cert. denied, 419 U.S. 826, 95 S. Ct. 43, 42 L. Ed. 2d 49 (1974): Our federal government has a particular interest in assuring a prospective witness that he or she will be free to respond by attending the trial of a federal indictment as a witness without being prevented from doing so by threats, molestation or force. Otherwise the foundations of federal justice would be undermined. Accord United States v. Walker, 710 F.2d 1062, 1071 (5th Cif. 1983), cert. denied, 465 U.S. 1005, 104 S. Ct. 995, 79 L. Ed. 2d 229 (1984): The right to testify at trial is one secured by the constitution." United States v. Thevis, 665 F.2d 616, 626 (5th Cir.1982), cerro denied, 459 U.S.

825,103 S. Ct. 57, 74 L. Ed. 2d 61 (1983). f. The Neglect to Prevent Claims under Section 1986 must go to the jury

Defendants have argued (in their Motion, but not in their Brief) that they cannot be held responsible for neglecting to prevent a conspiracy in which they were active participants.

However, in this regard, they misunderstand the nature of the claim. 42 U.S.C. § 1986 provides a cause of action against any person who: Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in the preceding section [42 USCS § 1985], are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; ... A claim under Section 1986 may be brought against the conspirators (for failing withdraw from and prevent the consummation

or refusing to

of the conspiracy) or against non-conspirators

who are in a position to "prevent or aid in the prevention" of the acts causing harm. 72

Clearly, both M&A and Bell were each in a position to take such action, as either the corporate entity or Bell could have refused to permit the retaliatory lawsuit to be filed.

Defendants have offered no evidence or argument to the contrary, such that, to the extent that they have moved for summary judgment on this claim, it must be denied. F. Plaintiff's Claims For Intentional Infliction of Emotional Distress Must Go To The Jury claim that the violent acts and extreme racial harassment "outrageous" to support a claim for intentional even make this contention to which they infliction of

Defendants subjected emotional

him is insufficient distress.

The fact that Defendants

is a matter which Tucker v. Hous.

Plaintiff intends to introduce before the jury, in seeking punitive damages. Auth., 229 Fed. Appx. 820,2007

U.S. App. LEXIS 8143, 100 Fair Empl. Prac. Cas. (BNA) 637,
(statements in briefs

73 Fed. R. Evid. Servo (CBC) 128 (lIth Cir. 2007) and cases cited therein. by counsel may constitute admissions by agent of party). The fact that Plaintiff had an employee/employer

relationship with Defendants - and that

the perpetrators were the owner or acting at the behest and with the express and tacit permission of the owner of the employer - creates a special relationship which can make otherwise egregious conduct outrageous. Trimble v. Circuit City, 220 Ga. App. 498, 499 (1996).


factors relevant include the existence of a relationship

in which one person has control over and the severity of the

another; the actor's awareness of the victim's particular susceptibility; resultant harm. Id., citing Anderson v. Chatham,

190 Ga. App. 559, 657 (1989); Williams the evidence presented

Voljavec, 202 Ga. App. 580, 582 (1992).

At a minimum,

here is

sufficient evidence for a jury to hear the claim and decide it. Fleming v. U-Haul Co. Of Georgia, 246 Ga. App. 681 (2000)(holding that there was a jury question presented as to intentional

infliction of emotional distress where car lessor demanded arrest of lessee for conversion when it 73

had imputed knowledge of extenuating circumstances)(MiIler, Ga. App. 26 (1999)(finding

J.); K-mart Corp. v. Lovett, 241

jury question on intentional infliction of emotional distress where

shopper accused of shoplifting, arrested, and subjected to false accusations)(Miller, In consider whether the conduct is sufficient to constitute

J .).

extreme and outrageous

behavior sufficient to support the claim of intentional infliction of emotional distress, the Court must consider the conduct in totality, rather than each act in isolation and placed special reliance on the fact that the conduct occurred within the confines of the employment relationship. In

Coleman v. Housing Auth. of Americus, 191 Ga. App. 166, 170 (2,3) (381 S.E.2d 303) (1989),
the Court held that: Standing alone, some of the incidents she related would not amount to actionable infliction of emotional distress by way of sexual harassment. But the repetition, over her protests, could be found to have had a cumulative effect. This can be particularly acute in an employment setting. The court has recognized that "the existence of a special relationship in which one person has control over another, as in the employer-employee relationship, may produce a character of outrageousness that otherwise might not exist." Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 230 (1) (335 S.E.2d 445) (1985). See also Tuggle, supra at 337. The argument that such remarks were insignificant and not sufficient to cause harm belittle but do not defeat the claim. The workplace is not a free zone in which the duty not to engage in wilfully and wantonly causing emotional distress through the use of abusive or obscene language does not exist. Actually, by its very nature, it provides an environment more prone to such occurrences because it provides a captive victim who may fear reprisal for complaining, so that the injury is exacerbated by repetition, and it presents a hierarchy of structured relationships which cannot easily be avoided. The opportunity for commission of the tort is more frequently presented in the workplace than in casual circumstances involving temporary relationships. In Ferman v. Bailey, 292 Ga. App. 288, 664 S.E.2d 285 (Ga. App, 2008), the Court reached the same conclusion: We find, however, that evidence of Ferman's pervasive pattern of harassing behavior demonstrated the extreme and outrageous nature of his conduct, especially given Ferman's ownership of the Dental Center and the control that he


exercised over Bailey as an employee. See Trimble v. Circuit City Stores, 220 Ga. App. 498, 499 (469 SE2d 776) (1996). Finally, in Trimble, the conduct sufficient and, as in Coleman and Ferman, the Court explained the decision thus: The conduct occurred "in a workplace setting, in which the element of control is present. '(B)y its very nature, (the employee-employer relationship) provides a captive victim who may fear reprisal for complaining, so that the injury is exacerbated by repetition, and it presents a hierarchy of structured relationships (that) cannot easily be avoided.' [Cit.]" Richardson v. Hennly, 209 Ga. App. 868, 872 (434 S.E.2d 772) (1993). See also Lightning v. Roadway Exp., 60 F.3d 1551, ] 558 (11 th Cir. 1995), where a supervisor subjected an employee to obscene and abusive language, and management undertook a strategy of writing up the employee for infractions in order to justify termination. The court upheld judgment against the employer. Similar is Coleman v. Housing Auth. of Americus, 191 Ga. App. 166 (381 S.E.2d 303) (1989), where a supervisor engaged in sexual harassment through conversation, innuendo, and body language. Given the conduct Defendants dismissed on summary judgment. Defendant further contend that Plaintiff has made no showing of extreme emotional took towards Plaintiff, it is clear that this claim may not be

distress. This contention is belied by his deposition and affidavit testimony, in which he testified to the fact that he has undergone psychiatric treatment and been rendered disabled as a result of Defendants' conduct. Contrary to Defendants' claim, he produced his psychiatric records in (Cooper Affidavit; Cooper Depo., pp.

discovery and testified to these facts in his deposition. 207-214). G.

This contention, which is unsupported by any evidence, is simply false.

Plaintiff's Claims Of Negligent Retention Must Go To The Jury

Defendants claim that there is no basis for the claims of negligent retention with regard to Patrick Pearson and Clay McCart, on the basis that they were unaware of the racist and violent conduct towards Plaintiff. However, as the evidence shows, Defendants were aware - before


rehiring Pearson in April of 2008 - that Pearson had quit the previous year expressly because he could not work for a black man. (Denham Depo., p. 72; Cooper Depo., p. 159). Further, Plaintiff, as well as other employees, informed Bell of racist and violent conduct by both Pearson and McCart. See, supra, pp. 12~13 and 18-19. Bell himself engaged in such

conduct, yet Defendants had no policies which would forbid such conduct nor was any action ever taken to prevent it from occurred. unaware that McCart's Contrary to Defendants' claim ~ that Defendants were

conduct was racist in nature - fellow employee Roger Cooper did, (Cooper Depo., p. 121-122).

expressly, tell Bell about McCart's frequent racist conduct.

Clearly, given the open, notorious, and violently racist conduct, occurring in the work place and in which Bell was a participant, Defendants may be found to have negligently hired and retained Bell, Pearson, and McCart. MARTA v. Mosley, 280 Ga. App. 486, 634 S.E2d 466

(Ga. App. 2006); Rogers v. Carmike Cinemas, 211 Ga. App. 427, 439 S.E.2d 663 (1993); Harvey v. McLaughlin, 198 Ga. App. 105 (400 S.E.2d 635) (1990); Coleman v. Housing Auth. of

Americus, 191 Ga. App. 166, 170 (2,3) (381 S .E.2d 303) (1989); Newsome v. Cooper- Wiss, Inc., 179 Ga. App. 670 (347 S.E.2d 619) (1986). H. PlaintifPs Claims Are Not Barred By The Statute Of Limitations claims of racial harassment under Title VII are barred It must be noted that this would not affect Plaintiffs

Defendants argue that Plaintiff's by the 180 day charge filing requirement.

Section 1981 claims - which have the same standard -as the Charge filing requirement does not appJy to Section 1981. Instead, Section 1981

harassment claims have a four year statute of limitations.

Jones v. R.R. Donnelley & Sons. Co., Therefore, Plaintiff's racial

541 U.S. 369, 124 S. Ct. 1836, 158 L. Ed. 2d 645 (2004).


harassment claims under Section 1981 reach conduct occurring within four years of the date his Complaint was filed. Further, a Charge of Discrimination alleging racial harassment under Title VII may be and will incorporate all prior

brought within 180 days of the most recent act of harassment actions.

The U.S. Supreme Court has held that: "It does not matter, for purposes of [Title VII],

that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of

determining liability." AMTRAK v. Morgan, 536 U.S. 101, 153 L. Ed. 2d 106, 122 S. Ct. 2061, *2074 (2002). In this case, Plaintiff has testified that the racial harassment to which he was subjected occurred every day in which he was employed. He has testified to at least one such

action which, taking the facts in the light most favorable to Plaintiff, occurred within 180 days of the filing of the EEOC Charge. (Cooper Depo., p. 198). In addition, Plaintiffs termination was part and parcel of the hostile work environment.

To sustain a racial harassment claim under the tangible employment action theory, Plaintiff must merely show that the Defendant, employment because of his race, interposed a "significant change in

status, such as hiring, firing, failing to promote, reassignment or a decision causing a significant

with significantly

different responsibilities,

change in benefits." Burlington

Indus., Inc. v, Ellerth, 524 U.S. 742, 761, 118 S. C1. 2257, 2268, 141 1. Ed. 2d 633 (1998). As shown above, with regard to his disparate treatment claims, Plaintiff has shown sufficient

evidence of racial motivation to show that his termination was part of the racial discrimination to which he was subjected.


As discussed above, "A Title VII plaintiff, therefore, may establish her entire case simply by showing that [he] was [racially] harassed by a fellow employee, and that the harasser took a tangible employment action against [him)." Llampallas v. Mini-Circuits, Because Plaintiff's termination Inc., 163 F.3d at 1247.

occurred on August 22, 2009, well within the 180 day charge

filing period, his claims under Title VII were timely filed with the EEOC. I. Defendants Violated The ADA With Regard To Medical Records in general, and information about a person's psychiatric health in Barbara A. Weiner, Confidentiality of

Medical information particular,

is information of the most intimate kind..

Mental Health Records,

] Health L. Prac. Guide § 17:30 (2010). This privacy interest - "the

individual interest in avoiding disclosure of personal matters" - has been afforded Constitutional and statutory protection. Whalen v. Roe, 429 U.S. 589, 599, 97 S. Ct. 869, 51 L. Ed. 2d 64

(1977)); Harrison v. Benchmark Elecs. Huntsville, Inc., 593 F.3d 1206 (lIth Cir. 2010) (citing 42 U.S.c. § 12119(d)). "More precisely, this right to privacy can be characterized 'confidentiality,'" as a right to

which "includes the right to protection regarding information about the state of

one's health." Doe v. City of New York, 15 FJd 264, 267 (2nd Cir. 1994); accord United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3rd Cir. 1980) (recognizing that "[i]nformation

about one's body and state of health is matter which the individual is ordinarily entitled to retain within the private enclave where he may lead a private life." (internal quotation marks omitted)). The ADA's Plaintiff, confidentiality private protections are intended to protect employees, their medical condition such as

from having



from becoming

accessible to persons having no right to that information. records must be maintained personnel records. in separate, confidential

Part of that protection is that such with other

files and not intermingled

42 U.S.c. § 121l2( d)(3)(B) and (4)(C). In this case, Defendants admittedly



that requirement

by intermingling




- including


worker's compensation records -- with the other records in his personnel file. As was held in Doe v. United States Postal Serv., 317 FJd 339 (D.C. Cir. 2003),

specifically addressing the context of medical inquiries resulting from a request for FMLA leave: It is true, as the Postal Service suggests, that Doe could have avoided disclosing his medical condition by forgoing his statutory entitlement to FMLA leave. If accepted, however, that view would force employees to choose between waiving their right to avoid being publicly identified as having a disability and exercising their statutory rights=including the rights to FMLA leave and to "reasonable accommodations" for their disabilities, see 42 U.s.c. § 121 12(b)(5)(A)--that may depend on disclosure of their medical conditions. Such a result would run directly counter to Congress's purpose in enacting the ADA, which was, at least in part, to permit employers to inquire into employees' medical conditions in order to provide reasonable accommodations, while avoiding subjecting employees to the "blatant and subtle stigma" that attaches to "being identified as disabled." H.R. REP. NO. 101-485, pt. 2, at 75 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 35758; see also 29 C.F.R. pt. 1630 app. (section 12112(d) and accompanying regulations "permit[] employers .,. to make inquiries or require medical examinations necessary to the reasonable accommodation process"). Section ]2112( d)'s confidentiality requirement balances these two competing interests by ensuring that the information disclosed pursuant to an employer's medical inquiry spreads no farther than necessary to satisfy the legitimate needs of both employer and employee. The Postal Service's theory would destroy that balance, returning employees to the very bind Congress sought to avoid by enacting the confidentiality requirement.

Id., at 344.
The examinations Harrison court's analysis focused on

§ 12112(d)(2),



of job applicants, but the reasoning applies equally to § 121 12(d)(4), prohibiting

medical examinations of employees. See Harrison, 593 F.3d at 1212-1214; Conroy v. New York State Dept. of Carr. Servs., 333 F.3d 88, 94 (2d Cir. 2003)(holding that employees may bring an action under § 121 12(d)(4) regardless of whether they are disabled); Fredenburg v. Contra Costa County Dep't of Health Servs., 172 F.3d 1176, 1182 (9th Cir. 1999) (same); Cossette v. Minn.


Power and Light, 188 F.3d 964, 969 (8th Cir. 1999) (same); Roe v. Cheyenne MIn. Can! Resort; Inc., 124 F.3d 1221, 1228 (lOth Cir. 1997) (same). In Doe v. United States Postal Serv., 317 F.3d 339 (D.C. Cir. 2003), the DC Circuit found sufficient evidence of a violation of 42 U.S.c. employee's

§ 121l2(d) by circumstantial evidence that the

co-workers had learned information about his health condition from an FMLA leave As the Court noted:

form he had submitted.

Section 12112(d)'s confidentiality requirement balances these two competing interests by ensuring that the information disclosed pursuant to an employer's medical inquiry spreads no farther than necessary to satisfy the legitimate needs of both employer and employee.

Id, 317 FJd at 344. Similarly, in EEOC v. Ford Motor Credit Co., 531 F. Supp. 2d 930,938
(M.D. Tenn. 2008), the Court found information requested and obtained by an employer after an employee requested medical leave was subject to the confidentiality 121l2(d). Defendants circumstances, are not entitled to summary judgment on this claim. In fact, under the provisions of 42 U.S.C. §

it is Plaintiff who is entitled to judgment on this issue.


The copious evidence of racial discrimination and harassment, both direct and


are well beyond what the Courts have required in pursuing of claims such as

those set forth here. Defendants deliberately chose to treat Plaintiff as nothing more or less than a slave, hearkening back to a shameful period - what Bell caIled "the olden days" - when a suffering any consequence.

white man could whip a black man until he bleeds, without

Apparently, Defendants believe that nothing has changed and that they are entitled to escape any consequences of their actions. They have shown utter contempt for the rule of law, tampering


with witnesses, perjuring themselves and suborning perjury freely, giving sworn testimony that is nothing short of fiction. Plaintiff asks the Court to disabuse them of these beliefs, to remind them that we live in a nation of laws that apply to all persons, irrespective of race or color, and this Court takes a dim view of the deliberately and knowingly false testimony they have offered in this case. Plaintiff asks that the Court deny their Motion for Summary Judgment in its entirety and set this case for trial. Respectfully submitted, this 25th day of June, 2012.

"\ ~

MATTHEW C. BILLIPS Georgia Bar No. 0571 10 MITCHELL D. BENJAMIN Georgia Bar No. 049888 BILLIPS & BENJAMIN LLP One Tower Creek 3101 Towercreek Parkway, Suite 190 Atlanta, Georgia 30339 (770) 859-0751 Telephone (770) 859-0752 Facsimile billips@baildblawvers.c6m benjamin@,






This is to certify that I have this day served Defendants with a copy of the within and foregoing in the above-referenced matter


MOTION FOR SUMMARY JUDGMENT" by UiS, Mail.with adequate postage addressed as
follows: Donald W. Benson HALL, BOOTH, SMITH & SLOVER, P.c. 191 Peachtree Street, NE, Suite 2900 Atlanta, Georgia 30303 This 25th day of June, 2012.

MITCHELL D. BEN] Georgia Bar No. 0498 BILLIPS & BENJAMIN LLP One Tower Creek 3101 Towercreek Parkway, Suite 190 Atlanta, Georgia 30339 (770) 859-0751 Telephone (770) 859-0752 Facsimile


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