Hornsby-Culpepper v. Ware et alREPLY BRIEF re MOTION for Summary Judgment , 64 MOTION for Summary JudgmentN.D. Ga.February 13, 2017[1] IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION AVIS HORNSBY-CULPEPPER ) Plaintiff, ) ) CIVIL ACTION FILE NO.: ) 1:15-CV-0347-SCJ-JKL v. ) ) R. DAVID WARE, in his Individual and ) Official Capacity, and FULTON ) COUNTY, GEORGIA, ) Defendants. ) DEFENDANTS’ REPLY BRIEF IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT COMES NOW Defendants Fulton County, Georgia, (“Fulton County”) and R. David Ware (“Ware”), and file this Reply Brief in Support of Their Motion for Summary Judgment. Defendants respectfully requests that this Honorable Court deem Defendants’ undisputed material facts as admitted, grant Defendants’ Motion for Summary Judgment and enter judgment in favor of Defendants. ARGUMENT AND CITATION TO AUTHORITY 1 1 Defendants will not reiterate every argument from their Brief in Support of their Motion for Summary Judgment since Plaintiff’s failure to address the factual and legal arguments should be deemed a concession as to the facts and an abandonment of the legal claims. See Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir.2001) (finding claim abandoned, and affirming grant of summary judgment, as to claim presented in complaint but not raised in initial response to motion for summary judgment); Coalition for the Abolition of Marijuana Prohibition v. City Case 1:15-cv-00347-SCJ-JKL Document 69 Filed 02/13/17 Page 1 of 18 [2] 1. The Parties Statements of Material Facts A. Defendant’s Statement of Undisputed Material Facts When responding to a motion for summary judgment, a “respondent…shall include…[a] response to the movant’s statement of undisputed facts.” L.R. 56.1(B)(2)(a) (emphasis added). The “response shall contain individually numbered, concise, nonargumentative responses corresponding to each of the movant’s numbered undisputed material facts.” L.R. 56.1(B)(2)(a)(1) (emphasis added). Should a respondent fail to respond to a movant’s statement of facts, the court “will deem each of the movant’s facts as admitted.” L.R. 56.1(B)(2)(a)(2). 2 Furthermore, “unless the respondent specifically informs the court to the contrary in the response,” the record citations used by the movant will be considered “supportive of [the] facts.” L.R. 56.1(B)(2)(a)(3). The parties have the responsibility to identify where there exists a genuine issue as to a material fact. of Atlanta, 219 F.3d 1301, 1325 (11th Cir.2000) (finding claim abandoned where it was not briefed and argued in district court in party’s response to motion for summary judgment or in party's own motion for summary judgment). 2 If a party fails to respond at all or in the manner directed by the rules of court, then judgment against a respondent is appropriate if the record reveals that there is no genuine issue as to any material fact. Digioia v. H. Koch & Sons, Div. of Wickes Mfg. Co., 944 F.2d 809, 811 n.6 (11th Cir. 1991) (defendant’s statement of material facts deemed admitted); Vilchez v. ARC Cmtys. 17, LLC, 704 F. Supp. 2d 1294, 1295 n.1 (N.D. Ga. 2010) (defendants’ statement of material facts deemed admitted); Oglesby v. Terminal Transport Co., 543 F.2d 1111, 1112 (5th Cir. 1976). Case 1:15-cv-00347-SCJ-JKL Document 69 Filed 02/13/17 Page 2 of 18 [3] Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008). The court has the discretion to deem as true, a movant’s properly presented facts, to the extent the record citations support them, when a respondent fails to respond. Id. In this case, Plaintiff either failed to respond properly or at all to many of the facts contained in Defendants’ Statement of Material Facts or lodged an improper objection or argument thereto. Specifically, Plaintiff failed to respond at all or failed to properly respond with a citation to record evidence refuting the fact or note that the citation offered by Defendants did not support the following facts contained in Defendants’ Statement of Material Facts: Nos. 13, 18, 20, 22, 23, 29, 30, 31, 32, 35, 38, 39, 41, 42, 43, 53, 58, 59. 60, 62, 64; 68-73, 76, 78, 79-81, 84, 85, 86-87, 88, 89-92, and 95. Plaintiff also lodged improper objections or arguments to the following facts contained in Defendants’ Statement of Material Facts: Nos. 17, 29-31, 32, 38, 43, 57, 61-62, 65, 89, 92, 93 and 95. Accordingly, the above-listed facts should be deemed admitted and undisputed, in addition to the other facts to which Plaintiff conceded were undisputed. Brandon v. Lockheed Martin Aeronautical Systems, 393 F. Supp. 2d 1341, 1347-48 (N.D. Ga. 2005) (deeming movant’s facts as admitted because of the pro se plaintiff’s response to the movant’s material facts did not comply with the local rules); Garmley v. Cochran, 651 Fed. App’x 933, 937 (11th Cir. 2016). Case 1:15-cv-00347-SCJ-JKL Document 69 Filed 02/13/17 Page 3 of 18 [4] B. Plaintiff’s Purported Statement of Disputed Material Facts In her response to Defendant’s Motion for Summary Judgment, Plaintiff did not file a Statement of Additional Material Facts. However, Plaintiff did indicate that her Affidavit filed with her response is a “Statement of Material Facts of which present a genuine issue for trial.” [Doc. 67-1, p.1]. Defendant summarily objects to Plaintiff circumventing the Federal Rules of Civil Procedure and Local Rules, particularly Local Rule 56.1(B)(2)(b), that requires a statement of additional material facts to conform to the same requirements applicable to the statement of undisputed material facts, like the one filed by Defendants. The Court should ignore Plaintiff’s Affidavit because it does not conform to the Local Rules. Dinkins v. Leavitt, No. 1:07-CV-486-TWT, 2008 WL 447503, at *3 (N.D. Ga. Feb.13, 2008) (refusing to consider the bulk of pro se plaintiff’s statement of material facts because she did not follow the local rules). Because Plaintiff’s purported Statement of Additional Material Facts should not be considered, neither should any fact contained in any of her affidavits. See Wright v. Dewey, No. 1:14-CV- 04059-RGV, 2016 WL 7888042, at *1 n.2 9 (N.D. Ga. Mar. 30, 2016) (refusing to consider facts set out in a brief but not contained in a statement of additional material facts that conforms to the local rules); see also Reese, 527 F.3d at 1268. Case 1:15-cv-00347-SCJ-JKL Document 69 Filed 02/13/17 Page 4 of 18 [5] 2. Plaintiff’s §1983 Claim A. Because Plaintiff fails to identify a proper comparator, she has failed to establish a prima facie case of sex or race discrimination under §1983. It is undisputed that, Ware was not the decisionmaker for Bell’s higher than minimum (“HTM”) salary. [See Pltf. Resp. to Def. SOMF No. 44]. Actions taken by different decisionmakers “can seldom be the basis for a viable claim of discrimination.” Clemmons v. Columbus Consolidated Government, No. 4:15-cv- 54(CDL), 2016 WL 6892086, at *9 (M.D. Ga. Nov. 22, 2016); see also Darity v. MEGA Life & Health Ins. Co., 541 F. Supp. 2d 1360, 1376 (N.D. Ga. 2008). Indeed, different decisionmakers decide things differently. See E.E.O.C. v. Comcast of Georgia, Inc., 560 F. Supp. 2d 1300, 1215-16 (N.D. Ga. 2008). Considering that Ware did not decide Bell’s salary, and therefore, he cannot be said to have treated Plaintiff differently with respect to Bell’s salary, Plaintiff is unable to establish a prima facie case of discrimination with respect to different results of Ware’s decision regarding Plaintiff’s HTM salary request and some other person’s decision regarding Bell’s. Accordingly, Plaintiff’s §1983 discrimination claim regarding the salary disparity in comparison to Bell’s salary fails. With respect to the other three employees—Fisher, VanderEnde and Grantham—that Plaintiff relies on regarding different treatment by Ware, those Case 1:15-cv-00347-SCJ-JKL Document 69 Filed 02/13/17 Page 5 of 18 [6] three employees were employed in different departments, were employed in different positions and were hired under different circumstances. For example, none of the positions Fisher, VanderEnde or Grantham were filling were within departments that had recently laid off employees as part of a RIF. [Ware Aff. ¶11]. Such factors are a valid basis for distinguishing one employee from another, rendering them non-comparators. See Drake-Sims v. Burlington Coat Factory Warehouse of Al., Inc., 330 Fed. App’x 795, 801 (11th Cir. 2009) (rejecting comparators whose salaries came about under markedly different circumstances than the plaintiff’s). Ware identified several differences regarding the circumstances of the HTM salary requests for Fisher, VanderEnde and Grantham. [Ware Aff.¶¶11-12] Thus, Fisher, VanderEnde and Grantham are unalike in all relevant respects, and thus, are not valid comparators. See Welch v. Mercer University, 304 Fed. App’x 834, 837 (11th Cir. 2008)(holding that employees were not valid comparators because they were employed in different departments and subject to different protocols specific to their department). Since Plaintiff is not similarly situated to Fisher, VanderEnde or Grantham, Plaintiff’s §1983 discrimination claims regarding application of the higher than minimum salary policy fails. B. Plaintiff has not established that Ware’s reasons for denying her HTM salary request were pretext for discrimination. Case 1:15-cv-00347-SCJ-JKL Document 69 Filed 02/13/17 Page 6 of 18 [7] Plaintiff contends that Ware’s legitimate reasons for denying the HTM salary for Plaintiff are “weak, inconsistent and contradictory.” [Doc. 67-1, p. 8]. However, Plaintiff’s attempt to rebut Ware’s reasons falls short. Ware identified four (4) reasons for not approving the HTM salary for Plaintiff: (1) the RIF in Juvenile Court that occurred shortly before Plaintiff’s hiring, (2) Plaintiff’s prior termination, (3) the increase from the salary requested in the Freeze Lift Form, and (4) the utilization of another non-salary funding line to fund the proposed excess portion of Plaintiff’s salary. [Ware Aff. ¶¶4-6, 8-10]. Plaintiff mainly offers unsupported assertions, without citations to the record, in response to Ware’s legitimate reasons. First, Plaintiff argues that budget cuts are County-wide, and therefore, all departments throughout the County had to make cuts. [Id.]. Plaintiff neglects to address that, as a result of those cuts, Juvenile Court, unlike the departments where Fisher, VanderEnde and Grantham worked, laid off two employees. [Ware Aff. ¶8]. Ware did not rely on general budget issues as Plaintiff attempts to address by recasting Ware’s reasons; instead, Ware was concerned about approving a HTM salary request for nearly $30,000, for a previously terminated employee, on the heels of 2 employees being terminated as a result of a RIF in the same department submitting the HTM salary request. [Ware Aff.¶¶6, 8-9]. Plaintiff has not Case 1:15-cv-00347-SCJ-JKL Document 69 Filed 02/13/17 Page 7 of 18 [8] produced any evidence that Ware approved a HTM salary for any other employee who was hired into a department that had recently laid employees off due to a RIF. Consequently, Plaintiff failed to rebut this reason for Ware’s denial of the HTM salary request for Plaintiff. 3 Second, Plaintiff addresses Ware’s concern about transferring money between salary and non-salary funding sources. Plaintiff calls it “suspect” that the Board of Commissioners frowned upon transferring money among different funding lines. [Doc. 67-1, p. 9]. Plaintiff reasons that, because “Ware had no previous experience in the position of County Manager,” he must not have known what the Board of Commissioners expected. [Id.]. Plaintiff also points out that Ware did not produce any document reflecting the desires of the Board of Commissioners. [Id.]. Plaintiff’s reasoning is misguided. For starters, Plaintiff’s speculation does not create a genuine dispute of fact. Jolibois v. Fla. Inter’l Univ. Board of Trustees, 654 Fed. App’x 461, 463 (11th Cir. 2016). To show a genuine dispute, there must be real evidence in the record supportive of a disputed fact. See Locascio v. Bbdo Atlanta, Inc., No. 1:14-cv-2017-MHC, 2016 WL7334647, at *1 (N.D. Ga. Feb. 9, 2016) (agreeing with the Magistrate Judge, that disregarding 3 Plaintiff’s notes that “juvenile court…had money left on the table,” in reference to Juvenile Court having excess budgeted funds, is irrelevant, because Plaintiff has not demonstrated that Ware knew that when he made his decision concerning the HTM salary request for Plaintiff. Case 1:15-cv-00347-SCJ-JKL Document 69 Filed 02/13/17 Page 8 of 18 [9] averments not made on personal knowledge such as “common knowledge averments” was proper). Thus, Plaintiff’s suspicion is not a valid showing of pretext nor does it raise a genuine dispute of fact. Ware spoke of his first-hand knowledge and he was County Manager at the time relevant here, in addition to being County Attorney before and after the events complained of, and would have been privy to the Board of Commissioners’ desire to restrict the transfer of funds among salary and non-salary accounts. 4 Plaintiff also relies on a provision in the HTM salary request form that states, “please provide funding source for additional funding request: (either by freezing of position including position # or transfer of funds from another account).” [Id.]. Again, Plaintiff misses the mark. The form does not contradict Ware’s guidance from the Board of Commissioners. Surely, the Board of Commissioners could request Ware to curb the transfers between funding sources despite an old form that requires the identification of a funding source. Furthermore, Ware was most concerned with non-salary funds being used to fund salaries. [Ware Aff. ¶4]. The HTM salary request form does not belie Ware’s understanding of the Board of Commissioners’ desire or his concern about transferring funds from non-salary to salary accounts. Thus, Plaintiff has failed to 4 Plaintiff has not and cannot rebut Ware’s legitimate reasons by demanding Ware produce a document that does not exist or that further supports his first-hand knowledge. Case 1:15-cv-00347-SCJ-JKL Document 69 Filed 02/13/17 Page 9 of 18 [10] rebut Ware’s reason for denial of the HTM salary based on the funding source proposed for the additional salary amount. Third, Plaintiff claims that because her “employee file clearly showed that Plaintiff had been terminated without cause” and Plaintiff received unemployment benefits following her termination, Ware should not have considered Plaintiff’s prior termination. [Doc. 67-1, pp. 9-10]. Plaintiff cannot simply quarrel with Ware’s decision as a basis for showing pretext. To prove pretext, the plaintiff may show that the employer’s proffered reasons were a coverup for a discriminatory decision. The court must evaluate whether the plaintiff has demonstrated such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence. Whether an employment decision was prudent or fair is irrelevant, because an employer is free to choose whatever means it wants, so long as it is not discriminatory, in responding to bad economic conditions. In other words, if the proffered reason is one that might motivate a reasonable employer, a plaintiff cannot recast the reason but must meet it head on and rebut it[;] quarreling with that reason is not sufficient. Taylor v. Teakdecking Systems, Inc., 571 Fed. App’x 767, 769 (11th Cir. 2014) (internal citations omitted). It is improper for the plaintiff or the court to recast the proffered reasons for an employment action. Silvera v. Orange County School Board, 244 F.3d 1253, 1260-61 (11th Cir. 2001). The Court need not determine if the reason is based on sound judgment, just whether the reason is what it is said to be and not a mask for race discrimination. Id. In Silvera, the employer’s action Case 1:15-cv-00347-SCJ-JKL Document 69 Filed 02/13/17 Page 10 of 18 [11] was based on the false belief about a pre-existing contract. Id. at 1261. Even though the evidence did not reveal a binding contract, it was undisputed that the employer thought there was one and acted based on what it thought, not because of a protected trait. Id. Consequently, the Eleventh Circuit reversed the District Court for not finding as a matter of law that there was not sufficient evidence to disbelieve the employer’s proffered reason for its employment action. Id. at 1262. Here, it would be reversible error to question the judgment, fairness or even logic of Ware’s undisputed reasons for not approving Plaintiff’s HTM salary request. Since Plaintiff has not advanced evidence to show that the reasons are untrue, judgment should be entered in favor of Defendants on Plaintiff’s discrimination claim. C. Plaintiff has failed show a basis for liability against Fulton County. Plaintiff’s response to Fulton County’s argument that she has failed to establish §1983 liability against Fulton County, Plaintiff relies on Carl v. Fulton County, No. 1:07-CV-01812 (N.D. Ga. Mar. 30, 2009). In Carl, the Court only held that the County Manager was a final policy-maker regarding hiring the director of the Human Services Department. See Order on Mtn. for Summ. Judgment, p. 9, Carl v. Fulton County, No. 1:07-CV-01812 (N.D. Ga. Mar. 30, 2009). Carl did not involve the application of the HTM salary policy, and thus, is Case 1:15-cv-00347-SCJ-JKL Document 69 Filed 02/13/17 Page 11 of 18 [12] distinguishable from the facts of this case. Furthermore, Plaintiff does not dispute that Ware’s actions were subject to the review of the Board of Commissioners or that the Board of Commissioners set the policies and rules regarding the HTM salary requests. For these reasons, Carl is not applicable and Plaintiff has not established liability of Fulton County under §1983. 3. Plaintiff’s Discrimination Claim Under The Equal Pay Act In response to Defendants’ affirmative defense—that the pay differential is based on a factor other than sex—Plaintiff simply incorporates her Affidavit and her response to Defendants’ arguments regarding Plaintiff’s §1983 claim. Defendants’ argument regarding to Plaintiff’s Equal Pay Act claim outlined the reasons Ware did not approve a HTM salary for Plaintiff, including: (1) the RIF in Juvenile Court that occurred shortly before Plaintiff’s hiring, (2) Plaintiff’s prior termination, (3) the increase from the salary requested in the Freeze Lift Form, and (4) the utilization of another non-salary funding line to fund Plaintiff’s salary. [Doc. 65-1, pp.20-22; see also Ware Aff. ¶¶4-6, 8-10]. Plaintiff’s incorporation of her arguments in support of her §1983 claim are insufficient to support her Equal Pay Act claim regarding the disparity in pay between her and Edwin Bell. Plaintiff does not dispute that the minimum salary for her position was $71,172. [See Pltf. Resp. to Def. SOMF No. 5; see also Hermon Aff. ¶3]. Plaintiff also does not Case 1:15-cv-00347-SCJ-JKL Document 69 Filed 02/13/17 Page 12 of 18 [13] dispute that to obtain a HTM salary, the Fulton County Personnel Regulations requires first a request and then approval by the Personnel Director and County Manager. [See Pltf. Resp. to Def. SOMF No. 7]. As explained earlier, Plaintiff’s arguments concerning her §1983 claim fail to raise a genuine issue of fact as to Ware’s decision, as County Manager, not to approve the HTM salary based on a factor other than sex. Similarly, Plaintiff’s Affidavit fails to raise a genuine issue of fact regarding Defendants’ affirmative defense. Plaintiff’s Affidavit, most of which contains immaterial and speculative information, hardly addresses and in no way rebuts the factors that led to Plaintiff not receiving the HTM salary in 2013. For example, Plaintiff acknowledges that she was terminated by Judge Edwards when she previously served as Clerk of Juvenile Court. [Hornsby-Culpepper Aff. ¶37]. If Plaintiff contends that Ware believed Plaintiff’s termination was unlawful, there is no evidence of such a belief held by Ware and Plaintiff’s own statements clearly indicate the opposite. [See Hornsby-Culpepper Aff. ¶49]. Plaintiff’s Affidavit does not address the remaining three reasons other than sex that led to Ware’s decision to not approve Plaintiff’s HTM salary. With nothing more than a litany of conclusory and immaterial allegations, summary judgment should be entered in favor of Defendants. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, Case 1:15-cv-00347-SCJ-JKL Document 69 Filed 02/13/17 Page 13 of 18 [14] 592 (11th Cir. 1995) (“[M]ere general allegations which do not reveal detailed and precise facts will not prevent the award of summary judgment upon a court's determination that no genuine issue for trial exists.”). 4. Plaintiff’s Retaliation Claim Without any support, Plaintiff claims that she has a valid retaliation claim. [Doc. 67-1, p. 13]. Plaintiff incorporates by reference her Affidavit to support her claim. [Id., p. 15]. Arguing against Plaintiff’s retaliation claim, Defendants pointed out that Plaintiff could not establish a prima facie case because her termination 5 was too far removed to be causally connected to her protected activity—the filing of this lawsuit. [Doc. 65-1, p. 25]. Plaintiff’s Affidavit provides no counterargument nor does it dispute that the case law in this Circuit has rendered a passage of almost five months or more as insufficient to establish a causal connection Plaintiff also does not argue that her retaliation claim based on the refusal of the Fulton County Juvenile Court Judiciary to appoint her as a judge should be considered by this Court in response to Defendants’ argument that it should not. Even if it was properly before this Court, Plaintiff does not rebut the reasons 5 Defendants also argued that Plaintiff could not establish temporal proximity between her protected activity and the other employment acts taken by the Juvenile Court Judiciary and the Circuit Defender. [See Doc. 65-1, p. 25]. Case 1:15-cv-00347-SCJ-JKL Document 69 Filed 02/13/17 Page 14 of 18 [15] articulated by the panel of judges who selected Renata Turner for the judgeship over Plaintiff. [See, e.g., Hornsby-Culpepper Aff. ¶114 (noting what Plaintiff “felt” and not what she knew first-hand regarding the decision of Judge Lovett)]. Indeed, Plaintiff does not even attempt to rebut the reasons articulated by Judge Scales. [See, generally, Hornsby-Culpepper Aff.]. Plaintiff’s attempt to rebut Pitts’ 6 reasons for selecting another candidate for the Supervising Attorney position is meritless. Plaintiff cannot simply argue with the wisdom of Pitts’ decision to show pretext, because it is not her perception of the facts that matter in the pretext inquiry, it is the perception of the decision maker—Pitts. Snowden v. City of Daphne, AL, 283 Fed. App’x 693 (11th Cir. 2008). And, if the reasons proffered are those that might motivate a reasonable employer, failure to rebut them must result in judgment for the employer. Because Plaintiff’s Affidavit simply quarrels with Pitts’ decision yet does not head on contradict or otherwise show how his reasons are false, she has failed to establish pretext. CONCLUSION For the foregoing reasons, Defendants Fulton County and Ware respectfully request that the Court grant their Motion for Summary Judgment. 6 Pitts is the Atlanta Circuit Defender and is a state appointee, not employed by Fulton County. See O.C.G.A. §17-12-20. He is not a party to this lawsuit. Case 1:15-cv-00347-SCJ-JKL Document 69 Filed 02/13/17 Page 15 of 18 [16] Respectfully submitted this 13th day of February, 2017. OFFICE OF THE COUNTY ATTORNEY /s/ Dominique A. Martinez Dominique A. Martinez Georgia Bar No. 430323 Dominique.martinez@fultoncountyga.gov 141 Pryor Street, S.W. Suite 4038 Atlanta, Georgia 30303 (404) 612-0234 (office) (404) 730-6324 (facsimile) Case 1:15-cv-00347-SCJ-JKL Document 69 Filed 02/13/17 Page 16 of 18 [17] IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION AVIS HORNSBY-CULPEPPER Plaintiff, v. R. DAVID WARE, in his Individual and Official Capacity, and FULTON COUNTY, GEORGIA, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION FILE NO.: 1:15-CV-0347-SCJ-JKL CERTIFICATE OF SERVICE The undersigned hereby certifies that on this day, a copy of the foregoing DEFENDANTS’ REPLY BRIEF IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT was electronically filed using Times New Roman 14 point type in accordance with Local Rule 5.1 B with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to all attorneys of record. This 13th day of February 2017. /s/ Dominique Martinez Dominique Martinez Georgia Bar No. 430323 Case 1:15-cv-00347-SCJ-JKL Document 69 Filed 02/13/17 Page 17 of 18 [18] dominique.martinez@fultoncountyga.gov Case 1:15-cv-00347-SCJ-JKL Document 69 Filed 02/13/17 Page 18 of 18 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION AVIS HORNSBY-CULPEPPER ) Plaintiff, ) ) CIVIL ACTION FILE NO.: ) 1:15-CV-0347-SCJ-JKL v. ) ) R. DAVID WARE, in his Individual and ) Official Capacity, and FULTON ) COUNTY, GEORGIA, ) Defendants. ) DEFENDANTS’ RESPONSE TO THE AFFIDAVIT OF AVIS K. HORNSBY-CULPEPPER COME NOW, Defendants R. David Ware and Fulton County, Georgia by and through undersigned counsel, and file this Response to the Affidavit of Avis K. Hornsby-Culpepper. Though Plaintiff failed to comply with Local Rule 56.1(B)(2)(b), which requires a respondent to summary judgment to submit “[a] statement of additional facts which the respondent contends are material and present a genuine issue for trial.,” she did file and incorporate an affidavit. “as the Statement of Material Facts.” Defendants object to Plaintiff using her Affidavit in lieu of preparing a statement of additional material facts. Defendants contend that Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 1 of 67 2 this unconventional attempt to respond fails to comply with the Local Rules and the Federal Rules of Civil Procedure, which require, inter alia, Each material fact must be numbered separately and supported by a citation to evidence proving such fact. The court will not consider any fact: (a) not supported by a citation to evidence (including page or paragraph number); (b) supported by a citation to a pleading rather than to evidence; (c) stated as an issue or legal conclusion; or (d) set out only in the brief and not in the movant’s statement of undisputed facts. L.R. 56.1(B)(1); See Reese v. Herbert, 527 F.3d 1253, 1268-70 (11th Cir. 2008); Brandon v. Lockheed Martin Aeronautical Sys., 393 F.Supp.2d 1341, 1347-48 (N.D. Ga. 2005) (deeming movant’s statement of material facts admitted where pro se plaintiff failed to provide relevant citations to the record to support factual statements in response). Out of an abundance of caution, Defendants hereby respond to Plaintiff’s Affidavit. However, due to the unconventional nature of Plaintiff’s Affidavit, citation to evidence contradicting Plaintiff’s statements of personal knowledge would not assist the Court with regard to this Motion, which the Court must assume in the light most favorable to Plaintiff. See e.g. Fed. R. Civ. P. 56. By failing to dispute these statements of personal knowledge, Defendants do not concede their truth or whether contradictory evidence exists in the record. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 2 of 67 3 To the extent that Plaintiff’s Affidavit states facts beyond her first-hand knowledge1, statements that are hearsay2, statements that are issues of law or legal conclusions3, statements that are not material4, statements that rely on conjecture or speculation5, or statements that rely on or are supported by incomplete or unauthenticated documents6, Defendants object to each of those statements and argue that the Court should not consider those statements for purposes of Defendants’ Motion for Summary Judgment. Subject to and without waiving these reservations and objections, Defendants, in an effort to comply with the Rules of this Court, respond to the Affidavit as if it were a Statement of Disputed Facts, as follows: 1 See Fed. R. Civ. P. 56(c)(4). 2 Fed. R. Evid. 802, et seq. 3 Local Rule of the Northern District of Georgia 56.1(B)(1)(c). 4 Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 5 Wright v. Dewey, No. 1:14-CV-04059-RGV, 2016 WL 7888042, at *3 (N.D. Ga. Mar. 30, 2016). 6 Homes v. City of Atlanta, Georgia, 1:08-CV-3560-JOF-CCH, 2010 WL 1328713 at *10 (N.D. Ga. Jan. 27, 2010); Brown v. Marriott Intern., Inc., 1:04-CV-3255- WSD, 2006 WL 2189695, at *6 (N.D. Ga. July 31, 2006); see also, Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 2722 (1998) (“To be admissible, documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e).”). Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 3 of 67 4 1. I am more than twenty-one (21) years old and suffer from no legal disabilities. I give this Affidavit for use in connection with the above styled litigation. Response: Defendants do not dispute this paragraph for purposes of this Motion. 2. I was hired by Vernon Pitts as a staff attorney with the Fulton County Public Defender's Office in July 1989. Response: Defendants do not dispute this paragraph for purposes of this Motion. 3. I worked in Juvenile Court as a trial attorney for two years before being transferred to Superior Court. Response: Defendants object to this paragraph because it is not material. Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 4 of 67 5 4. Within a few years I was promoted to Senior Trial Attorney. Response: Defendants object to this paragraph because it is not material. Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 5. I was the first Senior Trial Attorney to be promoted to the position of Supervising Trial Attorney. Response: Defendants do not dispute this paragraph for purposes of this Motion. 6. I held this position until 2007 when I retired to practice law with my mother. Response: Defendants do not dispute this paragraph for purposes of this Motion. 7. Before leaving the office, Mr. Pitts and I discussed that I would only be gone for two years. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 5 of 67 6 Response: Defendants do not dispute this paragraph for purposes of this Motion. 8. In eighteen months, his administrative assistant called me on his behalf and asked me to come back to the office and I agreed to return. Response: Defendants do not dispute this paragraph for purposes of this Motion. 9. When I came back to the office, there was not a supervisor position available. Response: Defendants do not dispute this paragraph for purposes of this Motion. 10. I agreed to accept the position of Senior Trial Attorney until a supervisory position became available. Response: Defendants do not dispute this paragraph for purposes of this Motion. 11. Previously my salary was $90,000.00 however, Mr. Pitts said he could only pay me $85,000.00 as a Senior Attorney and I accepted the lower salary. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 6 of 67 7 Response: Defendants do not dispute this paragraph for purposes of this Motion. 12. When I started there was an issue with my paycheck and it I was not paid for a month. Response: Defendants object to this paragraph because it is not material. Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 13. I had numerous conversations with the people in the personnel department about my check. Response: Defendants object to this paragraph because it is not material. Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 14. Kimberly Flowers, who worked in personnel, told me that because I returned within three years of leaving and since my old salary was within the pay range of Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 7 of 67 8 the senior attorney position, I would automatically get my old salary of $90,000.00 plus longevity pay. Response: Defendants object to this paragraph because it is not material. Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Defendants also object to this paragraph on the grounds that it contains hearsay statements, to which no exception applies. See Fed. R. Evid. 802, et seq. 15. At that time I received, as she had explained, my old salary plus longevity pay. Response: Defendants object to this paragraph because it is not material. Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Defendants also object to this paragraph on the grounds that it contains hearsay statements, to which no exception applies. Fed. R. Evid. 802, et seq. 16. When I returned to the Public Defender's office I took over capital cases in two demanding courtrooms because several attorneys had left the office. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 8 of 67 9 Response: Defendants object to this paragraph because it is not material. Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 17. In the time that I was there (about nine months), I worked up and tried approximately four murder cases. Response: Defendants object to this paragraph because it is not material. Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 18. This is more than some attorneys try in a three to five year period. Response: Defendants object to this paragraph because it is not material. Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 9 of 67 10 19. In addition to trying cases, I still helped numerous attorneys in the office prepare for trials of their cases since many still regarded me as a supervisor. Response: Defendants object to this paragraph because it is not material. Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 20. I was asked by Ms. Alli (the Chief Administrative Officer) and Chief Judge Belinda Edwards to join the Juvenile Court as Clerk of Court in 2009. Response: Defendants object to this paragraph on the grounds that it contains hearsay statements, to which no exception applies. Fed. R. Evid. 802, et seq. 21. Before accepting the position I spoke with Mr. Pitts about the transfer. Response: Defendants do not dispute this paragraph for purposes of this Motion. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 10 of 67 11 22. He did not ask me to stay at the office or express any concerns at my taking the position. Response: Defendants object to this paragraph on the grounds that it contains hearsay statements, to which no exception applies. Fed. R. Evid. 802, et seq. 23. Instead, Mr. Pitts stated that it was a great opportunity. Response: Defendants also object to this paragraph on the grounds that it contains hearsay statements, to which no exception applies. Fed. R. Evid. 802, et seq. 24. If I had known that Mr. Pitts felt any negative way about my leaving, I would have considered staying. Response: Defendants do not dispute this paragraph for purposes of this Motion. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 11 of 67 12 25. I accepted the position and was appointed the Clerk of Court for Juvenile Court. Response: Defendants do not dispute this paragraph for purposes of this Motion. 26. Upon arriving at the Court it was clear to me that the office lacked definite direction and leadership. Response: Defendants do not dispute this paragraph for purposes of this Motion. 27. I spent the next two years building a relationship with my staff, the other divisions of the court, the judges and the citizens of Fulton County. Response: Defendants do not dispute this paragraph for purposes of this Motion. 28. I worked closely with the administration to improve the overall effectiveness and efficiency of the Clerk’s Office. Response: Defendants do not dispute this paragraph for purposes of this Motion. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 12 of 67 13 29. I received exemplary on my performance evaluation and was hailed for improving the overall performance and morale of my staff. Response: Defendants do not dispute this paragraph for purposes of this Motion. 30. In 2010, Chief Judge Belinda Edwards wanted me to hire someone in my office that was not qualified but was a friend of hers. Response: Defendants object to this paragraph because it is not material. Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 31. I, with the approval of Ms. Alli, hired someone else. Response: Defendants do not dispute this paragraph for purposes of this Motion. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 13 of 67 14 32. Judge Edwards wanted me to do other things that I was not comfortable doing because I felt that they were unethical and wrong. Response: Defendants object to this paragraph because it is not material. Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Defendants also object to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). 33. In March of 20 11, Judge Edwards came to my office and asked for my resignation. Response: Defendants do not dispute this paragraph for purposes of this Motion. 34. When I inquired if I had done anything wrong in my job performance she stated no. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 14 of 67 15 Response: Defendants object to this paragraph on the grounds that it is a hearsay statement, to which no exception applies. Fed. R. Evid. 802, et seq. 35. I asked why was she asking for my resignation and she simply stated that “ ... the Court was going in a different direction ...” and that my services would no longer be needed. Response: Response: Defendants object to this paragraph on the grounds that it is a hearsay statement, to which no exception applies. Fed. R. Evid. 802, et seq. 36. After considering resigning, I declined to do so because I loved serving the court and citizens of Fulton County and even asked her to reconsider her decision. Response: Defendants do not dispute this paragraph for purposes of this Motion. 37. Judge Edwards terminated my appointment effective April 1, 2011. Response: Defendants do not dispute this paragraph for purposes of this Motion. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 15 of 67 16 38. She did so not because I did anything wrong but since I worked at her pleasure, my services were no longer desired. Response: Defendants object to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). Defendants also object to this paragraph to the extent that it is inconsistent with Plaintiff’s statements in paragraph 35 of this Affidavit. 39. My direct supervisor, Ms. Alli, was completely shocked and dismayed by the Judge's decision. Response: Defendants object to this paragraph because it is not material. Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Defendants also object to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 16 of 67 17 40. She contacted the County Attorney's Office to discuss if there was something on my behalf that could be done to prevent the termination. Response: Defendants object to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). 41. David Ware was the County Attorney at that time. Response: Defendants do not dispute this paragraph for purposes of this Motion. 42. The rest of the court was surprised at my termination. I received numerous calls from court staff dismayed over what had happened. Response: Defendants object to this paragraph because it is not material. Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Defendants also object to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 17 of 67 18 43. I filed a grievance with the county regarding my dismissal. They would not even hear my grievance because they said that since I was unclassified, there was nothing they could do. Response: Defendants do not dispute that Plaintiff “filed a grievance with the [C]ounty regarding [her] dismissal,” or that she was an “unclassified” employee, but to the extent that “They” “said” anything, such a statement is hearsay and is inadmissible. See Fed. R. Evid. 802, et seq. 44. The chief probation officer at the time, Theresa Diamond, was also forced by Judge Edwards to resign during that time. Response: Defendants object to this paragraph because it is not material. Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Defendants also object to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 18 of 67 19 45. Two men under 40 years of age were given our positions by Judge Edwards. Response: Defendants object to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). 46. I filed an EEOC complaint citing sex and age discrimination. Response: Defendants object to this paragraph because it is not material. Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 47. The EEOC found that the complaint was out of time and dismissed it. Response: Defendants object to this paragraph because it is not material. Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Subject to and without waiving the foregoing objections, Defendants do not dispute that Plaintiff filed an EEOC charge that was out of time, but to the extent Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 19 of 67 20 that “[t]he EEOC” “found” anything, such a statement is hearsay and is inadmissible. See Fed. R. Evid. 802, et seq. 48. At this time, I filed an Anti Litem notice and served it on the County Attorney, David Ware. Response: Defendants do not dispute this paragraph for purposes of this Motion. 49. The County Attorney responded and denied the allegations leaving me no other choice but to file a lawsuit if I wanted to pursue the claim. Response: Defendants do not dispute this paragraph for purposes of this Motion. 50. I worked in private practice for a little over a year and a half in-between working at juvenile court. Response: Defendants do not dispute this paragraph for purposes of this Motion. 51. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 20 of 67 21 During that time I would talk to Ms. Alli once or twice a week. Response: Defendants do not dispute this paragraph for purposes of this Motion. 52. In December of 2012, Judge Edwards was not reappointed to the court. Response: Defendants do not dispute this paragraph for purposes of this Motion. 53. Soon thereafter, Ms. Alli asked me if I would consider coming back to Juvenile Court. Response: Defendants do not dispute this paragraph for purposes of this Motion. 54. Ms. Alli knew that I had been considering filing a lawsuit for wrongful termination and asked if I would reconsider filing the lawsuit if she could get me rehired and I agreed. Response: Defendants object to this paragraph on the grounds that it is a hearsay statement, to which no exception applies. Fed. R. Evid. 802, et seq. Defendants Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 21 of 67 22 also object to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). 55. The statute of limitations would have run on April, 2013. Response: Defendants object to this paragraph because it contains a legal conclusion which is not admissible pursuant to Local Rule 56.1(B)(1)(c). 56. Ms. Alli told me that she would talk to the Chief Judge Bradley Boyd about my returning to the court. Response: Defendants object to this paragraph on the grounds that it is a hearsay statement, to which no exception applies. Fed. R. Evid. 802, et seq. 57. Around January of 2013, I received a call from Judge Boyd asking me if I would consider coming back to the court and I told him that I would. Response: Defendants do not dispute this paragraph for purposes of this Motion. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 22 of 67 23 58. Ms. Alli then worked diligently to get me back in the position before the April 15th deadline. Response: Defendants do not dispute this paragraph for purposes of this Motion. 59. She would call me weekly and update me on the status of the rehiring. Response: Defendants object to this paragraph because it is not material. Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 60. Before I knew it interviews were set up and I was being offered the position again. Response: Defendants do not dispute this paragraph for purposes of this Motion. 61. I received my offer letter on March 20, 2013. I started working on March 27, 2013. Response: Defendants do not dispute this paragraph for purposes of this Motion. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 23 of 67 24 62. Ms. Alli told me that I would be making my same salary. Response: Defendants object to this paragraph on the grounds that it is a hearsay statement, to which no exception applies. Fed. R. Evid. 802, et seq. 63. I would never have begun working at the court for anything less than my salary. Response: Defendants do not dispute this paragraph for purposes of this Motion. 64. No one ever told me that the salary had not been approved. Response: Defendants do not dispute this paragraph for purposes of this Motion. 65. I did not even know that the entry-level salary for the position was $71,000. Response: Defendants do not dispute this paragraph for purposes of this Motion. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 24 of 67 25 66. It was my understanding that when I started working, my salary had been approved. No one ever told me anything different. Response: Defendants do not dispute this paragraph for purposes of this Motion. 67. It was not until my first paycheck, two weeks later, that I realized I was not getting paid my old salary. Response: Defendants do not dispute this paragraph for purposes of this Motion. 68. I immediately called Ms. Alli to ask what was going on. Response: Defendants do not dispute this paragraph for purposes of this Motion. 69. It was not until then that she told me that the County Manager did not approve my salary. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 25 of 67 26 Response: Defendants object to this paragraph on the grounds that it is a hearsay statement, to which no exception applies. Fed. R. Evid. 802, et seq. 70. She assured me that it was going to be taken care of. Response: Defendants object to this paragraph on the grounds that it is a hearsay statement, to which no exception applies. Fed. R. Evid. 802, et seq. 71. She had me right a letter justifying my qualifications for the salary. Response: Defendants object to this paragraph to the extent that it is unintelligible. 72. She told me that she was going to meet with Mr. Ware. She also told me that she and Judge Boyd were going to speak with him also. Response: Defendants object to this paragraph on the grounds that it is a hearsay statement, to which no exception applies. Fed. R. Evid. 802, et seq. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 26 of 67 27 73. When Mr. Ware refused both requests at both meetings, she discussed trying other methods of getting me my money. Response: Defendants object to this paragraph on the grounds that it is a hearsay statement, to which no exception applies. Fed. R. Evid. 802, et seq. Defendants also object to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). 74. Sometime in May, 2013 at the swearing in of Judge Willie Lovett and Judge Juliette Scales, I attempted to speak with David Ware, who was attending the ceremony, about the issues with my salary. Response: Defendants do not dispute this paragraph for purposes of this Motion. 75. When I approached him and introduced myself, he stated be heard mention of me but knew my mother very well. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 27 of 67 28 Response: Defendants object to this paragraph on the grounds that it is a hearsay statement, to which no exception applies. Fed. R. Evid. 802, et seq. 76. I expressed my concern regarding approval of my salary and Mr. Ware looked at me with disgust. Response: Defendants objects to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). 77. I asked him why I could not even receive the same salary as Edwin Bell who was not even as qualified. Response: Defendants object to this paragraph to the extent that it contains a legal conclusion relating to Plaintiff’s qualifications relative to those of Edwin Bell, because such a conclusion is not admissible pursuant to Local Rule 56.1(B)(1)(c). 78. Mr. Ware told me that Mr. Bell hadn't been fired as I had. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 28 of 67 29 Response: Defendants object to this paragraph on the grounds that it is a hearsay statement, to which no exception applies. Fed. R. Evid. 802, et seq. 79. I explained to Mr. Ware that I had not been fired but that Judge Edwards asked for my resignation and because I would not agree she terminated me. Response: Defendants do not dispute this paragraph for purposes of this Motion. 80. Additionally, I explained to Mr. Ware that I had been a dedicated employee of Fulton County for over 20 years and had received the Employee of the Year Award. Response: Defendants do not dispute this paragraph for purposes of this Motion. 81. Mr. Ware looked at me again and just walked away. Response: Defendants do not dispute this paragraph for purposes of this Motion. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 29 of 67 30 82. I was extremely hurt by the way that he had treated me as both a Fulton County employee and a fellow member of the Georgia Bar. Response: Defendants object to this paragraph because it is not material. Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 83. I sat down next to Ms. Alli and she immediately asked me what I said to Mr. Ware because he sent her a text message questioning why I would even have the nerve to approach him. Response: Defendants object to this paragraph to the extent that it contains hearsay statements, to which no exceptions apply. Fed. R. Evid. 802, et seq. 84. After months I realized that Mr. Ware was never going to approve my salary. Response: Defendants do not dispute this paragraph for purposes of this Motion. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 30 of 67 31 85. I felt that Mr. Ware was discriminating against me because of my sex and race. Response: Defendants object to this paragraph to the extent that it contains a legal conclusion and is not admissible pursuant to Local Rule 56.1(B)(1)(c). Defendants also object to this paragraph because “[s]peculation or conjecture cannot create a genuine issue of material fact.” Wright v. Dewey, No. 1:14-CV-04059-RGV, 2016 WL 7888042, at *3 (N.D. Ga. Mar. 30, 2016). Defendants further object, because Plaintiff’s conclusory beliefs or feelings are not competent evidence of discriminatory intent sufficient to withstand summary judgment, and therefore, not material. 86. I felt like Mr. Ware did not want to pay a black woman who was in a position of power the same or similar to a man who had held the same the position. Response: Defendants object to this paragraph to the extent that it contains a legal conclusion and is not admissible pursuant to Local Rule 56.1(B)(1)(c). Defendants also object to this paragraph because “[s]peculation or conjecture cannot create a genuine issue of material fact.” Wright v. Dewey, No. 1:14-CV-04059-RGV, 2016 Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 31 of 67 32 WL 7888042, at *3 (N.D. Ga. Mar. 30, 2016). Defendants further object, because Plaintiff’s conclusory beliefs or feelings are not competent evidence of discriminatory intent sufficient to withstand summary judgment, and therefore, not material. 87. I also felt that Fulton County was discriminating against me because Edwin Bell, a young black male, had been paid more than me holding the same position, having less experience than me. Response: Defendants object to this paragraph to the extent that it contains a legal conclusion and is not admissible pursuant to Local Rule 56.1(B)(1)(c). Defendants also object to this paragraph because “[s]peculation or conjecture cannot create a genuine issue of material fact.” Wright v. Dewey, No. 1:14-CV-04059-RGV, 2016 WL 7888042, at *3 (N.D. Ga. Mar. 30, 2016). Defendants further object, because Plaintiff’s conclusory beliefs or feelings are not competent evidence of discriminatory intent sufficient to withstand summary judgment, and therefore, not material. 88. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 32 of 67 33 I also found out that Mr. Ware, as the County Attorney, was being sued by three black females who claimed that he had sexual harassed them while they were working for him. Response: Defendants object to this paragraph because it is not material. Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 89. It was at that time that I felt that Fulton County had discriminated against me for allowing Mr. Ware, who was being sued for sexual harassment in his department and costing the County hundreds of thousands of dollars, to be promoted to the highest position in the County. Response: Defendants object to this paragraph to the extent that it contains a legal conclusion and is not admissible pursuant to Local Rule 56.1(B)(1)(c). Defendants also object to this paragraph because “[s]peculation or conjecture cannot create a genuine issue of material fact.” Wright v. Dewey, No. 1:14-CV-04059-RGV, 2016 WL 7888042, at *3 (N.D. Ga. Mar. 30, 2016). Defendants further object, because Plaintiff’s conclusory beliefs or feelings are not competent evidence of Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 33 of 67 34 discriminatory intent sufficient to withstand summary judgment, and therefore, not material. 90. By Fulton County promoting him they allowed him to discriminate against me by refusing to approve my above-minimum salary request. Response: Defendants object to this paragraph to the extent that it contains a legal conclusion and is not admissible pursuant to Local Rule 56.1(B)(1)(c). 91. As a result of the discrimination against me, I went to the EEOC and filed a discrimination complaint in September of 2013. Response: Defendants object to this paragraph to the extent that it contains a legal conclusion and is not admissible pursuant to Local Rule 56.1(B)(1)(c). Defendants do not dispute that Plaintiff filed an EEOC charge in September 2013. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 34 of 67 35 92. It took them quite some time to investigate. Response: Defendants do not dispute this paragraph for purposes of this Motion. 93. Because of statute of limitations concerns, on February 3, 2015, I filed this lawsuit. Response: Defendants object to this paragraph to the extent that it contains a legal conclusion and is not admissible pursuant to Local Rule 56.1(B)(1)(c). 94. Before filing the lawsuit, I notified Ms. Alli and Judge Boyd of my intention to file suit. Response: Defendants do not dispute this paragraph for purposes of this Motion. 95. Sometime in early February 2015, there was an associate judge position open at the court. Response: Defendants do not dispute this paragraph for purposes of this Motion. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 35 of 67 36 96. Ms. Alli encouraged me to apply for the position and if I got it I could then drop the lawsuit. Response: Defendants object to this paragraph on the grounds that it is a hearsay statement, to which no exception applies. Fed. R. Evid. 802, et seq. 97. Judge Boyd was also aware that I had filed a lawsuit against the county. Response: Defendants objects to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). 98. It was Judge Boyd's hopes that if I received the judge position it could "right the wrong" of my salary not getting approved. Response: Defendants objects to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 36 of 67 37 99. During the process of applying for the judgeship, Ms. Alli helped me with my resume’ and gave me information on my competitors. Response: Defendants do not dispute this paragraph for purposes of this Motion. 100. During the interview process Ms. Alli told me that Judge Boyd said that I did very well in the interview and that I was his choice at that point. Response: Defendants object to this paragraph on the grounds that it is a hearsay statement, to which no exception applies. Fed. R. Evid. 802, et seq. 101. Out of the 8 to 10 candidates that interviewed, I was called back for a second interview with two others. Response: Defendants do not dispute this paragraph for purposes of this Motion. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 37 of 67 38 102. Ms. Alli confided in me that although I was Judge Boyd's choice, Judge Lovett was interested in choosing another candidate that worked at the court. Response: Defendants object to this paragraph on the grounds that it is a hearsay statement, to which no exception applies. Fed. R. Evid. 802, et seq. 103. There was an issue of nepotism since her sister already worked for the Judges so Ms. Alli got an opinion from the County Attorney concerning being able to hire this young lady. Response: Defendants objects to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). 104. The County Attorney told Ms. Alli and Judge Lovett that her hiring as an Associate Judge would violate county policy. Response: Defendants object to this paragraph on the grounds that it is a hearsay statement, to which no exception applies. Fed. R. Evid. 802, et seq. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 38 of 67 39 105. With the Chief Judge backing me, we were both certain that I would get the appointment. Response: Defendants objects to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). 106. One day in late March 2015, Judge Boyd came to my office and closed the door. Response: Defendants do not dispute this paragraph for purposes of this Motion. 107. He told me that he had been "out-voted" by the other two presiding judges. Response: Defendants object to this paragraph on the grounds that it is a hearsay statement, to which no exception applies. Fed. R. Evid. 802, et seq. 108. He told me that I was his choice but that he allowed the others to have equal vote and they voted for someone else. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 39 of 67 40 Response: Defendants object to this paragraph on the grounds that it is a hearsay statement, to which no exception applies. Fed. R. Evid. 802, et seq. 109. I began to cry and as I looked at him, his eyes were watered also. Response: Defendants do not dispute this paragraph for purposes of this Motion. 110. He encouraged me to apply again and reminded me that he had tried eight times before he was appointed and that he believed that I would be a good Associate Judge. Response: Defendants object to this paragraph on the grounds that it is a hearsay statement, to which no exception applies. Fed. R. Evid. 802, et seq. 111. On or about March 22, 2015, it was announced that Renata Turner had been given the Associate Judge position. Response: Defendants do not dispute this paragraph for purposes of this Motion. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 40 of 67 41 112. I know personally, that Judge Lovett and David Ware are good friends. Response: Defendants objects to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). 113. They worked in the County Attorney's Office for a while and are known allies. Response: Defendants objects to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). Defendants do not dispute that Judge Lovett and Defendant Ware worked in the County Attorney’s Office. 114. I felt that Judge Lovett blocked me getting the Judgeship because of his friendship with Mr. Ware, and the lawsuit I filed against him. Response: Defendants object to this paragraph to the extent that it contains a legal conclusion and is not admissible pursuant to Local Rule 56.1(B)(1)(c). Defendants also object to this paragraph because “[s]peculation or conjecture cannot create a Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 41 of 67 42 genuine issue of material fact.” Wright v. Dewey, No. 1:14-CV-04059-RGV, 2016 WL 7888042, at *3 (N.D. Ga. Mar. 30, 2016). Defendants further object, because Plaintiff’s conclusory beliefs or feelings are not competent evidence of retaliatory intent sufficient to withstand summary judgment, and therefore, not material. 115. A couple of weeks after Judge Turner was appointed; I started to notice a change in the attitude of the some of the judges against me. Response: Defendants do not dispute this paragraph for purposes of this Motion. 116. I even started noticing a change in Ms. Alli's attitude towards me. She became extremely distant. Response: Defendants do not dispute this paragraph for purposes of this Motion. 117. A few of the judges began making complaints about things that were relatively minor in the Clerk's office. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 42 of 67 43 Response: Defendants do not dispute this paragraph for purposes of this Motion. 118. The complaints ranged from how someone was dressed to complaining about an original document not being in the file. This was in-spite of the fact that a copy was provided and the image of the document was scanned in our court computer system. Response: Defendants do not dispute this paragraph for purposes of this Motion. 119. Ms. A1li required me to get approval from her before doing anything that involved the judges. Response: Defendants do not dispute this paragraph for purposes of this Motion. 120. I was not able to make independent decisions when it came to the Judges. Response: Defendants do not dispute this paragraph for purposes of this Motion. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 43 of 67 44 121. For example one of my new employees was having a hard time catching on to her position as Judicial Case Manager to the Judge. The judge was frustrated and the employee was equally frustrated. Response: Defendants do not dispute this paragraph for purposes of this Motion. 122. I asked that she be moved but Ms. Alli would not approve the move. Response: Defendants do not dispute this paragraph for purposes of this Motion. 123. Quite naturally this made the Judge unhappy but this, as was any other matters concerning the judges, was out of my control. Response: Defendants object to this speculation or recitation of alleged “common knowledge” because “[c]ourts have routinely excluded such ‘common knowledge’ averments from consideration at the Rule 56 stage.” Locascio v. Bbdo Atlanta, Inc., No. 1:14-CV-207-MHC, 2016 WL 7334647, at *1 (N.D. Ga. Feb. 9, 2016) Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 44 of 67 45 citing King v. ATD Sec. Servs., No. 06-0519-WS-C, 2007 WL 2713212, at *2 (S.D. Ala. Sept. 17, 2007)). 124. However, I attempted to address each concern personally and attempted to reach a positive resolution for each concern. Response: Defendants do not dispute this paragraph for purposes of this Motion. 125. A few of the Judges were upset because Ms. Alli had changed things so that my staff was now handling the presentation of court cases and subpoenaing of witnesses. Response: Defendants do not dispute this paragraph for purposes of this Motion. 126. They wanted the clerks to go back to the clerk's office-and wanted the probation officers to come back into the courtroom. Response: Defendants do not dispute this paragraph for purposes of this Motion. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 45 of 67 46 127. Ms. Ali disagreed with this and refused to implement the Judge's wishes which in turn caused more conflict between the Clerk's Office and the judges. Response: Defendants do not dispute this paragraph for purposes of this Motion. 128. Since the inception of the court, these duties had been done by the probation department. Response: Defendants do not dispute this paragraph for purposes of this Motion. 129. My staff, that previously held entry-level positions, were now responsible for performing high paced intricate duties. Response: Defendants do not dispute this paragraph for purposes of this Motion. 130. The majority of them struggled with their new positions. Response: Defendants do not dispute this paragraph for purposes of this Motion. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 46 of 67 47 131. Most of the employees improved significantly after training and others I had to get permission from Ms. Alli to switch them around to other Judges. Response: Defendants do not dispute this paragraph for purposes of this Motion. 132. However, time after time after time once one issue was resolved the Judges would complain about another issue, all of which seemed minute in nature. Response: Defendants do not dispute this paragraph for purposes of this Motion. 133. Ms. Alli also prohibited me from disciplining my staff. Response: Defendants do not dispute this paragraph for purposes of this Motion. 134. I could only administer verbal warnings. Response: Defendants do not dispute this paragraph for purposes of this Motion. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 47 of 67 48 135. Written warnings or more severe discipline could only be administered by Ms. Alli. Response: Defendants do not dispute this paragraph for purposes of this Motion. 136. She micromanaged my office when it came to discipline matters and would not let me effectively manage my staff in this respect. Response: Defendants do not dispute this paragraph for purposes of this Motion. 137. For example, there was a clerk that had a serious attendance issue. She was out on a regular basis which caused other staff to have to fill-in and carry her load often. Response: Defendants do not dispute this paragraph for purposes of this Motion. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 48 of 67 49 138. Her supervisor had well documented her attendance problems. This employee had been verbally warned and even written up by her supervisor (prior to the rules changing). Response: Defendants do not dispute this paragraph for purposes of this Motion. 139. When the absenteeism got worse, I asked for a suspension for this employee to hopefully improve her attendance however, Ms. Alli refused. Response: Defendants do not dispute this paragraph for purposes of this Motion. 140. Her attendance never improved and continued to be a burden for the staff who constantly had to fill in for her. Response: Defendants do not dispute this paragraph for purposes of this Motion. 141. This again, caused more negativity with the Court and my office. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 49 of 67 50 Response: Defendants do not dispute this paragraph for purposes of this Motion. 142. Individuals who worked in the courtroom would approach me because they noticed the sudden and now continuous negative attitude of some of the Judges towards me and the Clerk's office. Response: Defendants objects to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). Subject to and without waving this objection, Defendants do not dispute this that individuals approached Plaintiff. 143. This negative treatment towards me and my staff continued until I fired by Ms. Alli. Response: Defendants do not dispute this paragraph for purposes of this Motion. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 50 of 67 51 144. At no time while I was at the Clerk's Office did Ms. Alli ever speak to me about my performance being deficient or that changes need to be made at the Clerk's Office. Response: Defendants do not dispute this paragraph for purposes of this Motion. 145. The county has a policy of progressive discipline per PR-1800-2 for mandatory use by Appointing Authorities whenever discipline or correction is needed. [Pltf.'s Ex. 10] Response: Defendants objects to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). Further, Defendants object to this paragraph on the grounds that it is a hearsay statement, to which no exception applies. Fed. R. Evid. 802, et seq. Further, the document which Plaintiff references is neither complete nor authenticated. Homes v. City of Atlanta, Georgia, 1:08-CV-3560-JOF-CCH, 2010 WL 1328713 at *10 (N.D. Ga. Jan. 27, 2010); Brown v. Marriott Intern., Inc., 1:04-CV-3255-WSD, 2006 WL 2189695, at *6 (N.D. Ga. July 31, 2006); see also, Wright, Miller & Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 51 of 67 52 Kane, Federal Practice and Procedure: Civil 3d § 2722 (1998) (“To be admissible, documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e).”). 146. I never received any verbal warning or counselling or written warnings OT reprimands from Ms. Alli or anyone in authority regarding any problems with my performance as Clerk of Court. Response: Defendants do not dispute this paragraph for purposes of this Motion. 147. On June 14, 2015, Ms. Alli called me into her office to speak with me. Response: Defendants dispute the allegations in this paragraph to the extent that the testimony differs from Plaintiff’s testimony during her deposition. [See Doc. 68 at pp. 130-131, Exhibit 11]. 148. At that time she told me she was firing me. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 52 of 67 53 Response: Defendants object to this paragraph on the grounds that it is a hearsay statement, to which no exception applies. Fed. R. Evid. 802, et seq. Subject to and without waiving this objection, Defendants do not dispute that Plaintiff was terminated. 149. When Ms. Alli fired me she did not state that she was doing so because of any deficiency in my performance. Response: Defendants do not dispute this paragraph for purposes of this Motion. 150. I specifically asked her, if I had done anything wrong. Response: Defendants do not dispute this paragraph for purposes of this Motion. 151. Ms. Alli only stated that she was letting me go because "the court was going in a different direction." Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 53 of 67 54 Response: Defendants object to this paragraph on the grounds that it is a hearsay statement, to which no exception applies. Fed. R. Evid. 802, et seq. 152. Before I left, Ms. Alli told my staff and me that she was conducting an assessment by Cannon Solutions for the purpose of justifying and requesting more staff and justifying more money for the staff. Response: Defendants object to this paragraph on the grounds that it is a hearsay statement, to which no exception applies. Fed. R. Evid. 802, et seq. 153. I worked closely with the assessor as he was a former clerk that I had conferenced with on many occasions. Response: Defendants do not dispute this paragraph for purposes of this Motion. 154. While doing the assessment, he commended me and my staff for the job that we were doing and offered ideas to enhance our office’s performance. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 54 of 67 55 Response: Defendants do not dispute this paragraph for purposes of this Motion. 155. Ms. Alli never showed me the report or discussed the report with me or my Chief Deputy Clerk, Cedric McEachin, to see how we felt about his suggestions. Response: Defendants objects to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). 156. The first time I have seen the report was in this case as an Exhibit to Defendants' Motion for Summary Judgment. Response: Defendants do not dispute this paragraph for purposes of this Motion. 157. It is my understanding that none of the suggestions of the assessor have been implemented by the Clerk's office to date. Response: Defendants do not dispute this paragraph for purposes of this Motion. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 55 of 67 56 158. After I was fired, which was effective July 14, 2015, I applied for the Supervising Trial Attorney position with the Fulton County Public Defender's Office. Response: Defendants do not dispute this paragraph for purposes of this Motion. 159. Although highly qualified, I was not even given an interview with the Public Defender's Office. Response: Defendants object to this paragraph to the extent that it contains a legal conclusion which is not admissible pursuant to Local Rule 56.1(B)(1)(c). Subject to this objection, Defendants do not dispute that Plaintiff did not take part in an interview for the position of Supervising Trial Attorney in the Public Defender’s Office. 160. Mr. Pitts interviewed attorneys that were presently employed at the public defender's office for the supervisor position and one individual that was not employed at the PD’s office. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 56 of 67 57 Response: Defendants objects to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). 161. The job announcement never stated that it was a position regarding or requiring SB440 experience. Most of the people interviewed had little to no experience handling SB440 cases. Response: Defendants objects to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). Further, Defendants object to this paragraph on the grounds that it contains hearsay statements, to which no exception applies. Fed. R. Evid. 802, et seq. 162. Further, I have experience in handling SB440 cases and if the application had stated such and/or I at least had gotten an interview Mr. Pitts would have known that I had SB440 experience. Response: Defendants do not dispute this paragraph for purposes of this Motion. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 57 of 67 58 163. Mr. Pitts knew or should have known that I am extremely familiar with the factors and the law concerning transferring cases back to juvenile court as I had to work with the supervisors at the Public Defender's office to effectuate the transfers as the Clerk of Court for Juvenile Court. Response: Defendants objects to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). 164. Also, as a previous supervisor with the Public Defender's Office (one of the first), I was responsible for a full case load that included serious capital felonies just like SB440 cases as well as supervising of other courtrooms. Response: Defendants do not dispute this paragraph for purposes of this Motion. 165. Only one person out of the four that he interviewed had SB440 experience. Response: Defendants objects to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 58 of 67 59 166. Marilyn Primovic had no SB440 experience and no supervisory experience. [See PItf.’s Ex.12] Response: Defendants object to this paragraph on the grounds that it is a hearsay statement, to which no exception applies. Fed. R. Evid. 802, et seq. Further, the document which Plaintiff references is neither complete nor authenticated. Homes v. City of Atlanta, Georgia, 1:08-CV-3560-JOF-CCH, 2010 WL 1328713 at *10 (N.D. Ga. Jan. 27, 2010); Brown v. Marriott Intern., Inc., 1:04-CV-3255-WSD, 2006 WL 2189695, at *6 (N.D. Ga. July 31, 2006); see also, Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 2722 (1998) (“To be admissible, documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e).”). 167. Brian Hobbs had no SB440 experience and no supervisory experience. [See Plt.’s Ex.12] Response: Defendants object to this paragraph on the grounds that it is a hearsay statement, to which no exception applies. Fed. R. Evid. 802, et seq. Further, the Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 59 of 67 60 document which Plaintiff references is neither complete nor authenticated. Homes v. City of Atlanta, Georgia, 1:08-CV-3560-JOF-CCH, 2010 WL 1328713 at *10 (N.D. Ga. Jan. 27, 2010); Brown v. Marriott Intern., Inc., 1:04-CV-3255-WSD, 2006 WL 2189695, at *6 (N.D. Ga. July 31, 2006); see also, Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 2722 (1998) (“To be admissible, documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e).”). 168. Nonetheless, these individuals were given interviews. Response: Defendants do not dispute this paragraph for purposes of this Motion. 169. It was not uncommon that attorneys in the Public Defender's Office would leave and return sometimes more than once or twice. Response: Defendants do not dispute this paragraph for purposes of this Motion. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 60 of 67 61 170. Sandra Witherspoon, one who Mr. Pitts interviewed for the Supervising Trial Attorney position, left twice and has recently been rehired for a third time. [See Pltfs. Ex. 12] Response: Defendants do not dispute this paragraph for purposes of this Motion. 171. Cynthia Harrison was also rehired three times. Response: Defendants do not dispute this paragraph for purposes of this Motion. 172. Neither of these rehires had as many total years of service as I had before I left the Public Defender’s Office the first time. Response: Defendants objects to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 61 of 67 62 173. I have personal knowledge that heads of departments contact each other before hiring or interviewing or accepting a transfer. Response: Defendants object to this paragraph because it is not material. Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Further, Defendants object to this speculation or recitation of alleged “common knowledge” because “[c]ourts have routinely excluded such ‘common knowledge’ averments from consideration at the Rule 56 stage.” Locascio v. Bbdo Atlanta, Inc., No. 1:14-CV-207-MHC, 2016 WL 7334647, at *1 (N.D. Ga. Feb. 9, 2016) citing King v. ATD Sec. Servs., No. 06-0519-WS-C, 2007 WL 2713212, at *2 (S.D. Ala. Sept. 17, 2007)). 174. After working with the Public Defender's Office for over 20 years, being honored as employee of the year, having both SB440 experience and supervisory experience, and qualifying off the county registry, at the very least Mr. Pitts should have interviewed me. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 62 of 67 63 Response: Defendants object to this paragraph because it contains a legal conclusion which is not admissible pursuant to Local Rule 56.1(B)(1)(c). 175. I believe this was done to retaliate against me and blackball me from being employed with Fulton County. Response: Defendants object to this paragraph because it contains a legal conclusion which is not admissible pursuant to Local Rule 56.1(B)(1)(c). Defendants object to this paragraph to the extent that it contains a legal conclusion and is not admissible pursuant to Local Rule 56.1(B)(1)(c). Defendants also object to this paragraph because “[s]peculation or conjecture cannot create a genuine issue of material fact.” Wright v. Dewey, No. 1:14-CV-04059-RGV, 2016 WL 7888042, at *3 (N.D. Ga. Mar. 30, 2016). Defendants further object, because Plaintiff’s conclusory beliefs or feelings are not competent evidence of retaliatory intent sufficient to withstand summary judgment, and therefore, not material. 176. Ms. Alli has used the reduction in force mechanism to "get rid of” employees that she did not like but that were classified and protected. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 63 of 67 64 Response: Defendants objects to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). Further, Defendants object to this paragraph because it contains a legal conclusion which is not admissible pursuant to Local Rule 56.1(B)(1)(c). 177. Ms. Alli did not like Ina Pope nor Constance West and discussed this fact with me. She was looking for a way to get rid of them. She used her discretion and RIF Ms. Pope and Dr. West. Response: Defendants objects to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). 178. Ms. Alli has wanted to terminate Cedric McEachin, the Chief Deputy Clerk of Court. He, however, is a classified employee. Response: Defendants objects to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). Defendants further object to this paragraph because it is not material. Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 64 of 67 65 177. She recently tried to RIF him but recalled the lay-off. Response: Defendants objects to this paragraph to the extent that it asserts facts beyond the first-hand knowledge of the affiant. See Fed. R. Civ. P. 56(c)(4). Defendants further object to this paragraph because it is not material. l78. I declare under penalty of perjury that the statements contained herein are true and correct. Response: Defendants do not dispute this paragraph for purposes of this Motion. Respectfully submitted, this 13th day of February, 2017. OFFICE OF THE COUNTY ATTORNEY /s/ Dominique Martinez Georgia Bar No.: 430323 Attorney for Defendants 141 Pryor Street, S.W. Suite 4038 Atlanta, Georgia 30303 (404) 612-0246 (office) (404) 730-6324 (facsimile) Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 65 of 67 66 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION AVIS HORNSBY-CULPEPPER ) Plaintiff, ) ) CIVIL ACTION FILE NO.: ) 1:15-CV-0347-SCJ-JKL v. ) ) R. DAVID WARE, in his Individual and ) Official Capacity, and FULTON ) COUNTY, GEORGIA, ) Defendants. ) CERTIFICATE OF SERVICE The undersigned counsel certifies that the foregoing DEFENDANTS’ RESPONSE TO THE AFFIDAVIT OF AVIS K. HORNSBY-CULPEPPER has been prepared with one of the font and point selections approved by the Court in Local Rule 5.1C. The undersigned counsel further certifies that a copy of this notice has been served on counsel of record with the Clerk of Court using the CM/ECF system, which will automatically send e-mail notification of such filing to the following attorneys of record: This 13th day of February, 2017. /s/ Dominique Martinez Georgia Bar No.: 430323 Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 66 of 67 67 141 Pryor Street, S.W. Suite 4038 Atlanta, Georgia 30303 (404) 612-0246 (office) (404) 730-6324 (facsimile) Case 1:15-cv-00347-SCJ-JKL Document 69-1 Filed 02/13/17 Page 67 of 67
