UNITED STATES DISTRICT COURT SOUTHERN DISTRICT...
Transcript of UNITED STATES DISTRICT COURT SOUTHERN DISTRICT...
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
JOHNNY MCDONALD, )
) Plaintiff, ) CIVIL ACTION
) FILE NO.
v. ) ) JURY TRIAL DEMANDED
AUGUSTA, GEORGIA; )
RICHMOND COUNTY CORONER; )
and MARK BOWEN, )
in his official capacity as )
Richmond County Coroner, )
)
Defendants. )
COMPLAINT
1. Plaintiff Johnny McDonald (“Mr. McDonald” or “Plaintiff”)
respectfully submits the following Complaint against Defendants Augusta,
Georgia, the consolidated government of Richmond County and the City of
Augusta (“Augusta”), Richmond County Coroner (“the Coroner’s Office”), and
Mark Bowen, in his official capacity as Richmond County Coroner (“Bowen”)
(collectively “Defendants”), alleging violations of the Fair Labor Standards Act,
29 U.S.C. § 201 et seq., (“FLSA”), and the Georgia Whistleblower Act, O.C.G.A.
§ 45-l-4, (the “Whistleblower Act”).
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INTRODUCTION
2. Mr. McDonald was employed by Defendants from February 2008
until May 1, 2014, when he was constructively terminated from his employment
because of repeated harassment and threats by his supervisors, co-workers, and
other Augusta staff members in retaliation for reporting Coroner Grover Tuten’s
unlawful conduct to the Federal Bureau of Investigations (“FBI”) and for his
continued refusal to participate in ongoing corruption within the Coroner’s Office.
3. Throughout Mr. McDonald’s employment with the Coroner’s Office,
Defendants willfully and systematically violated the FLSA by failing to pay
Mr. McDonald time and one-half of his regular hourly rate for all hours worked
over the maximum allowed under 29 U.S.C. §207, including hours worked while
on call.
4. Defendants also failed to pay Mr. McDonald holiday pay that was due
and owing under a written agreement between the parties.
JURISDICTION AND VENUE
5. Mr. McDonald’s FLSA claims present federal questions over which
the Court has jurisdiction pursuant to 28 U.S.C. § 1331. This Court has further
jurisdiction over Mr. McDonald’s state law claims pursuant to 28 U.S.C. § 1367.
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6. This Court is an appropriate venue for all of Mr. McDonald’s claims
under 28 U.S.C. § 1391(b)(2) because all of the unlawful actions and practices
alleged herein were committed in Richmond County and within the Southern
District of Georgia.
THE PARTIES
7. Mr. McDonald is a citizen of the State of South Carolina and a
resident of Aiken County, South Carolina. He submits himself to the jurisdiction
of this Court.
8. Augusta, Georgia is a consolidated governmental entity consisting of
the City of Augusta, a municipality, and Richmond County, a political subdivision
of the state of Georgia. Augusta is subject to the jurisdiction of this Court. Augusta
may be personally served with process by delivering a copy of the Complaint and
summons to the Mayor and Chief Executive Officer, Deke Copenhaver, at his
business address located at 530 Greene St., Augusta, Georgia 30901.
9. The Coroner’s Office is an office created by the Constitution of the
State of Georgia and is subject to the jurisdiction of this Court. The Coroner’s
Office may be may be served with process by delivering a copy of the Complaint
and summons to Coroner Mark Bowen, at the Coroner’s Office, located at 912 8th
St., Augusta, Georgia 30901.
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10. Mark Bowen may be personally served with process by delivering a
copy of the Complaint and summons to him at the Coroner’s Office, located at 912
8th St., Augusta, Georgia 30901.
THE FACTS
11. Mr. McDonald began working for Defendants on or around
February 1, 2008 as a Deputy Coroner.
12. At all relevant times during his employment at the Coroner’s Office,
Mr. McDonald fulfilled the duties of a Deputy Coroner.
13. At all relevant times, employees of the Coroner’s Office were
employees of Augusta and participated in the Augusta merit system.
14. In February 2010, Mr. McDonald was forced by then-Coroner Tuten
to sign an agreement. In that Agreement, Mr. McDonald conceded that he would
be treated as an exempt employee and he would not be entitled to receive overtime
compensation except on holidays, effective January 1, 2010 (“2010 Agreement”).
15. Mr. McDonald was threatened by both Tuten and then-Chief Deputy
Coroner Bowen that he would be fired if he failed to sign the 2010 Agreement,
regardless of whether or not his job duties met the statutory guidelines for
exemption under the FLSA.
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16. As incentive to force Mr. McDonald into signing the 2010 Agreement,
Defendants offered to pay him a lump sum payment for previous unpaid vacation
days, permitted him to cash out ten (10) vacation days in 2010 only, and promised
him that he would be eligible for holiday leave on approved holidays designated by
Augusta. In the event Mr. McDonald worked on a holiday, Defendants agreed to
pay him time and a half for time worked on holidays.
17. Defendants repeatedly failed to pay Mr. McDonald for time worked
on holidays from 2010 through May 2014 as promised in the 2010 Agreement.
18. Per the 2010 Agreement, Defendants also assigned Mr. McDonald the
title of Assistant Director, purportedly to satisfy the statutory guidelines for
exemption. However, despite the change in his title, Mr. McDonald’s
responsibilities remained the same as they were prior to his purported promotion.
19. After the execution of the 2010 Agreement, Mr. McDonald did not
have (nor did he engage in) any responsibilities that satisfy any exemption to
FLSA’s overtime pay mandate. Mr. McDonald had no supervisor responsibility,
gave no input into the policies or management of the Coroner’s Office, and did not
have the authority to hire and fire. Mr. McDonald did not exercise discretion and
independent judgment with respect to matters of significance.
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20. At all times relevant, Mr. McDonald’s regular schedule consisted of
seven 24-hour shifts per every two week period, resulting in approximately 168
hours worked every two weeks.
21. During each shift, Mr. McDonald was required to respond
immediately to death investigations at any time during the 24-hour shift.
Mr. McDonald was required to be in the office starting at 8:00 AM, if he was not
actively investigating a death. If Mr. McDonald started an investigation near the
end of his 24-hour shift, he was required to stay on duty past the end of his shift to
complete the investigation.
22. Mr. McDonald regularly received calls at all hours of the day and
night on his days off with respect to his ongoing death investigations, including
calls from the Georgia Bureau of Investigations, families of the deceased, hospitals
and medical facilities, nursing homes, and members of the news media.
23. Mr. McDonald was unable to freely engage in personal activities for
the entire period of each 24-hour shift, and he often worked beyond the end of his
shift and on his days off to fulfill his job responsibilities.
24. At all times relevant, Defendants failed to maintain accurate time
records of all hours worked by Deputy Coroners.
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25. Mr. McDonald repeatedly complained to Tuten that he was not
performing any work duties that were consistent with the title he was given under
the 2010 agreement. In addition, Mr. McDonald complained to Tuten that he was
not being paid his overtime pay. Tuten responded by chastising Mr. McDonald and
told him to stop complaining about not being paid.
26. Mr. McDonald repeatedly complained about the Defendants’ failure
to pay overtime. Specifically, in 2012 and 2013, Mr. McDonald reported
Defendants’ failure to follow the law in refusing to pay him overtime
compensation to Becky Godbee, the Augusta Human Resources representative, and
to Jacqueline Humphrey, the Augusta Equal Employment Opportunity Director
(“Humphrey”).
27. In July 2013, Mr. McDonald provided information to the FBI
regarding illegal conduct by then-Coroner Tuten. At the FBI’s request,
Mr. McDonald sought the cooperation of then-Chief Deputy Bowen in the
investigation, but Bowen became angry with Mr. McDonald for exposing Bowen
to possible criminal charges for his complicity in Tuten’s illegal conduct. Bowen
refused to coorperate, notwithstanding the fact that Tuten was violating the law.
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28. After reporting Tuten, Kenny Boose (“Boose”), a fellow Deputy
Coroner, told Mr. McDonald that he also knew that Mr. McDonald had reported
Tuten to the FBI.
29. On December 19, 2013, Tuten was arrested on charges of theft and
violation of his oath of office.
30. Following Tuten’s arrest, Bowen assumed the role of Acting Coroner
and Boose assumed the role of Acting Chief Deputy Coroner. As Acting Coroner,
Bowen was finally vested with the complete authority over the operations of the
Coroner’s Office and over Mr. McDonald.
31. On or around December 19, 2013, Boose overheard Mr. McDonald
speaking on the phone with Humphrey, the Augusta EEO Director. Boose warned
Mr. McDonald not to make any more complaints about the Coroner’s Office
because it would hurt Bowen’s chances of permanently becoming Coroner and
Boose’s chances of being permanently promoted to Chief Deputy Coroner.
Mr. McDonald told Boose that he was concerned about Bowen’s failure to report
and possible involvement in Tuten’s illegal activities. Boose responded that he
already knew that Bowen had received property from Tuten that was stolen from a
decedent’s estate, but apparently, Boose did not care as he wanted to advance his
own career.
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32. The next day, Mr. McDonald again attempted to report this
threatening conduct and corruption by his superiors at the Coroner’s Office to the
Augusta Sheriff’s Department, but the Sheriff’s Department refused to act on his
report.
33. On December 23, 2013, Mr. McDonald went to the Augusta
Employee Wellness Center because he began to experience extremely high blood
pressure as a result of the ongoing stressful and hostile work environment. The
Wellness Center Director placed Mr. McDonald on medical leave, and he remained
out until February 1, 2014.
34. On or around January 3, 2014, Mr. McDonald received a phone call
from Cindy Holland (“Holland”), Augusta’s Employee Relations Director,
regarding his medical leave. Mr. McDonald again complained about his unpaid
overtime and the hostility he was experiencing in the workplace as a result of
Tuten’s arrest. Holland promised to review Mr. McDonald’s payroll records and
to investigate his reports of harassment and retaliation. When Mr. McDonald
followed up with Holland the next week, she stated that she had been instructed to
stop her investigation and refused to state the reason why she could not investigate
his complaints.
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35. Mr. McDonald filed open records requests on January 14, 2014 and
again on January 24, 2014, requesting copies of documents and communications
related to his hours worked and work schedules, to the 2010 Agreement, and to his
complaints of harassment and hostile work environment.
36. On February 1, 2014, Mr. McDonald returned to work after being
cleared for duty by his physician. After his return, Boose and Bowen ignored and
isolated Mr. McDonald.
37. On February 5, 2014, Mr. McDonald met with Tanika Bryant
(“Bryant”), the Augusta Human Resources Director. She assured Mr. McDonald
that she would review his time sheets and work calendar to determine how much
overtime he was owed. She agreed to set up a subsequent meeting to discuss
settlement of any overtime pay owed to Mr. McDonald, but she never did so.
38. On February 10, 2014, Mr. McDonald attended a staff meeting at the
Coroner’s Office where Acting Coroner Bowen announced new time and
attendance policies. Effective February 15, 2014, the Coroner’s Office would begin
tracking hours worked and would pay overtime to non-exempt employees,
including Mr. McDonald. Bowen told Mr. McDonald that his title was being
changed back to Deputy Coroner from Assistant Director. Mr. McDonald again
demanded payment for his overtime worked prior to February 15, 2014.
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39. Mr. McDonald phoned Jodie Smitherman (“Smitherman”), an
Augusta Staff Attorney, about his conversation with Bowen. She stated that Bowen
had written the new overtime policy and that the decision to change Mr.
McDonald’s title came from Bowen.
40. On February 17 and 18, 2014, Mr. McDonald left messages for both
Bryant and Smitherman asking for a meeting to discuss his complaints about his
unpaid overtime and harassment and hostile work environment. Smitherman and
Bryant eventually agreed to meet with Mr. McDonald and his wife on February 25,
2014, but that meeting never happened.
41. On February 19 and 20, 2014, Mr. McDonald sent a series of emails
to Bowen, Bryant, Smitherman, and other Augusta officials demanding payment of
his past, unpaid overtime and stating his intent to notify the United States
Department of Labor, Wage and Hour Division, of Augusta’s non-compliance with
overtime laws. In his email to Smitherman, Mr. McDonald also stated that he
intended to notify the Georgia State Attorney General of Augusta’s failure to
comply with his Open Records Request.
42. On February 20, 2014, Bryant and Smitherman called Mr. McDonald
again. Smitherman asked Mr. McDonald why he was emailing complaints about
hostile work environment and harassment to Augusta officials. When Mr.
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McDonald questioned why Smitherman had not responded to his Open Records
Request, she terminated the call.
43. On February 20, 2014, Smitherman sent a response to Mr.
McDonald’s records request and attached an invoice for $1,438.80 in estimated
costs that Mr. McDonald was required to pay in advance in order to receive the
requested documents. On February 21, 2014, Mr. McDonald’s wife, Deborah F.
McDonald (“Mrs. McDonald”), delivered a check for the amount of $1,438.80 to
the Augusta Law Department for the Open Records Request.
44. On February 21, 2014, Mr. McDonald sent an email addressed to
Bowen, Bryant, Smitherman, and other Augusta officials. Mr. McDonald identified
himself as the individual who informed the FBI of former Coroner Tuten’s
corruption and asked for protection as a whistleblower. He requested further
investigation into past and present corruption at the Coroner’s Office, demanded
payment of his unpaid overtime, reported that he had experienced serious health
effects due to hostile treatment by other Augusta employees, and asked to be
transferred out of the Coroner’s office.
45. On February 21, 2014, Mr. McDonald returned to the Augusta
Employee Wellness Center when it opened because he was concerned about his
blood pressure level. He received a medical excuse from work that day due to his
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high blood pressure. The Wellness Center Director told Mr. McDonald that the
Augusta Human Resources Department called and questioned her decision to place
Mr. McDonald on medical leave in December 2013.
46. Later that day, on February 21, 2014, in retaliation for
Mr. McDonald’s email, Bowen placed Mr. McDonald on administrative leave until
February 26, 2014, after which time Mr. McDonald already had scheduled an
approved medical leave for knee surgery.
47. On February 22, 2014, Mr. McDonald received a phone call from a
retired member of the Augusta Sheriff’s Department who warned him that Bowen
would be “getting rid of” Mr. McDonald.
48. On February 24, 2014, Mr. McDonald went to the Augusta Municipal
Building to pick up paperwork for his medical leave and to meet with Humphrey,
the Augusta EEO Director. Mr. McDonald was stopped by security and told that he
was not permitted to enter the building without an escort. The security supervisor
refused to explain why Mr. McDonald was being barred from the public building.
While standing in the lobby, Mr. McDonald began experiencing high blood
pressure and chest pain. He called 911 for emergency medical assistance and was
transported to the hospital.
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49. On February 26, 2014, Mr. McDonald received a letter from Holland
stating that his “erratic, paranoid, and irate behavior” had raised a question about
his ability to perform his essential job functions, specifically, the requirement that
he carry a concealed weapon. Mr. McDonald was ordered to turn over his badge
and Coroner’s ID and to submit to a fitness for duty examination.
50. On February 27, 2014, Mrs. McDonald turned over Mr. McDonald’s
credentials to Augusta Marshal Steve Smith. She asked why her husband was
being required to turn in his credentials. Smith stated that Smitherman had
recorded her phone call with Mr. McDonald on February 20, 2014, and she had
alleged that Mr. McDonald threatened her with a gun during that call. Mrs.
McDonald asked to hear the recording of the phone call, and Smith said he could
make that happen. Later, Smith told Mr. McDonald that Smitherman recanted her
allegation that Mr. McDonald threatened her, and he refused to share the recording
of the conversation.
51. On February 27, 2014, Mrs. McDonald called the Augusta Law
Department about Mr. McDonald’s open record request. She was told she would
receive a call back to inform her when the request would be ready, but no one from
the Law Department ever called her back.
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52. On February 28, 2014, Tuten formally resigned the office of Coroner,
and on March 1, 2014, Probate Court Judge Harry B. James, III, appointed Bowen
as Coroner for the remainder of Tuten’s term. Prior to Bowen’s appointment,
Mr. McDonald had spoken to Judge James and informed him that Bowen had
known about Tuten’s corruption and done nothing about it.
53. In March 2014, shortly after Mr. McDonald went on medical leave,
Bowen hired a new Deputy Coroner to replace Mr. McDonald, even though
Mr. McDonald had not been fired, resigned, or retired from his position with the
Coroner’s Office.
54. On May 1, 2014, Mr. McDonald was constructively terminated from
his employment with Defendants as a result of the corrupt, hostile, and illegal
conduct of officials from Augusta and the Coroner’s Office. After his surgery,
Mr. McDonald saw the writing on the wall and knew that if he returned to work,
Bowen would find a pretextual reason to fire him and render him ineligible for
retirement benefits. Mr. McDonald had no choice but to retire rather than return to
a corrupt and hostile work environment.
55. The acts of placing Mr. McDonald on administrative leave, restricting
his access to public facilities, and constructively terminating Mr. McDonald’s
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employment constitute retaliation for his repeated reports of corruption and
violations of law by Augusta and Coroner’s Office officials.
56. Defendants’ wrongful retaliation and constructive termination of
Mr. McDonald caused him great injury, including lost wages, the loss of
accumulated fringe benefits of employment, loss of retirement income, diminished
future earning capacity, tarnishment of his reputation, emotional distress,
humiliation, and embarrassment.
57. To date, Defendants have failed to respond to Mr. McDonald’s open
records request, despite receiving a check for $1,438.80 on February 21, 2014 as
advance payment for the estimated costs of responding to the request.
COUNT I
FAILURE TO PAY OVERTIME
IN VIOLATION OF FLSA, 29 U.S.C. §§ 207, 215(a)(2)
58. Mr. McDonald incorporates by reference all of the foregoing
paragraphs of this Complaint, as if fully set forth herein.
59. Defendants are governed by and subject to 29 U.S.C. §§ 206 and 207.
60. At all times relevant, Defendants satisfied the standard for an
“employer” under the FLSA as that term is defined by 29 U.S.C. § 203(d).
61. As all times relevant, Mr. McDonald was an “employee” of
Defendants as that term is defined by 29 U.S.C. §203(e).
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62. At all times relevant, Defendants violated the FLSA by failing to pay
Mr. McDonald time and one-half his regular hourly rate of pay for all hours
worked over the maximum allowed under 29 U.S.C. §207.
63. At all times relevant, Defendants suffered and permitted Mr.
McDonald to consistently work over the maximum allowed under 29 U.S.C. §207
without paying Mr. McDonald the overtime wage differential.
64. Defendants repeatedly violated the provisions of 29 U.S.C. §§211(c)
and 215(a)(5) and Department of Labor regulations at 29 C.F.R. §516 by failing to
make, keep, and preserve adequate and accurate records of the persons employed
and of the wages, hours, and other conditions and practices of employment
maintained by them.
65. Mr. McDonald is entitled to shift the burden of proof to Defendants
with regard to the amount of overtime worked due to the Defendants’ violation of
29 U.S.C. §§211(c) and 215(a)(5) and Department of Labor regulations at 29
C.F.R. §516.
66. Defendants’ conduct was willful and in bad faith to avoid paying
overtime compensation.
67. At all times relevant, Defendants purposefully misclassified Mr.
McDonald as exempt in order to avoid paying Mr. McDonald the overtime wage
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differential required by the FLSA. Defendants also forced Mr. McDonald to sign
the 2010 Agreement with no intention of actually promoting him to the position
with supervisory job duties that would satisfy the exemption from overtime
compensation.
68. At all times relevant, Mr. McDonald spent the entirety of his work
time performing non-exempt work.
69. Mr. McDonald was not paid for all hours worked during his time in
the office and while on call.
70. Whenever Mr. McDonald complained about this to Defendants,
Defendants would disregard his complaints.
71. As a result of Defendants willful disregard of their obligations under
the FLSA, Mr. McDonald is entitled to three (3) years unpaid wages, liquidated
damages, prejudgment interest on unpaid wages, and reasonable attorneys’ fees
and costs, pursuant to 29 U.S.C. § 216(b).
COUNT II
RETALIATION IN VIOLATION OF FLSA, 29 U.S.C. § 215(a)(3)
72. Mr. McDonald incorporates by reference all of the foregoing
paragraphs of this Complaint, as if fully set forth herein.
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73. From 2012 until his constructive termination on May 1, 2014, Mr.
McDonald repeatedly notified his supervisors and Augusta officials that that he
was entitled to overtime pay.
74. In February 2014, after the Coroner’s Office announced its new
overtime policy, Mr. McDonald sent a series of emails again notifying his
supervisors and Augusta officials that he was entitled to back pay for unpaid
overtime and stated his intent to notify the United States Department of Labor,
Wage and Hour Division, of Defendants’ non-compliance with overtime laws.
75. Mr. McDonald filed numerous complaints regarding Defendants’
overtime pay practices prior to his constructive termination. As such,
Mr. McDonald engaged in statutorily protected activity under 29 U.S.C.
§ 215(a)(3).
76. In retaliation for Mr. McDonald’s complaints regarding Defendants’
overtime pay practices, Defendants harassed Mr. McDonald, placed Mr. McDonald
on administrative leave, wrongfully restricted Mr. McDonald’s access to public
facilities, and engaged in other retaliatory conduct.
77. Defendants’ conduct resulted in working conditions that were so
intolerable that a reasonable person would have been compelled to resign or retire
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and, as such, constituted a constructive termination of his employment with
Defendants and an adverse action under 29 U.S.C. § 215(a)(3).
78. Defendants’ adverse action caused great damage to Mr. McDonald.
79. Because reinstatement to his position as Deputy Coroner is not
practicable, Mr. McDonald is entitled to front pay in lieu of reinstatement.
80. Mr. McDonald is entitled to recover damages for lost wages, the loss
of accumulated fringe benefits of employment, loss of retirement income,
tarnishment of his reputation, great uncertainty regarding his future, emotional
distress, humiliation, and embarrassment, pursuant to 29 U.S.C. § 216(b).
81. Mr. McDonald is entitled to recovery of his attorneys’ fees and all
other costs of litigation, pursuant to 29 U.S.C. § 216(b)
COUNT III
RETALIATION UNDER THE
GEORGIA WHISTLEBLOWER ACT, O.C.G.A § 45-1-4, et seq.
82. Mr. McDonald incorporates by reference all of the foregoing
paragraphs of this Complaint, as if fully set forth herein.
83. From July 2013 up and until his constructive termination on May 1,
2014, Mr. McDonald engaged in protected activity under the Whistleblower Act,
O.C.G.A. § 45-1-4(d)(3), by objecting to and refusing to participate in conduct by
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Defendants that he reasonably believed was in violation of or noncompliance with
a law, rule, or regulation.
84. Specifically, Mr. McDonald informed then-Chief Deputy Coroner
Bowen immediately after he had reported Tuten to the FBI, in hopes that Bowen
would also cooperate. Instead, Bowen began to retaliate against Mr. McDonald as
soon as he became Acting Coroner and had full authority over Mr. McDonald.
85. Mr. McDonald again engaged protected activity on February 21,
2014, when he made an email to disclosure to Bowen and officials in the Augusta
Human Resources and Law Departments identifying himself as the individual who
provided information to the FBI about Tuten’s corruption and demanding further
investigation into ongoing corruption at the Coroner’s Office.
86. In retaliation for Mr. McDonald’s protected acts of objecting to and
refusing to participate in conduct that he reasonably believed was a violation of a
law, rule, or regulation, Defendants harassed Mr. McDonald, placed Mr.
McDonald on administrative leave, wrongfully restricted Mr. McDonald’s access
to public facilities, and engaged in other retaliatory conduct.
87. Defendants’ retaliatory conduct resulted in working conditions that
were so intolerable that a reasonable person would have been compelled to resign
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or retire and, as such, constituted a constructive termination of his employment
with Defendants and an adverse action under O.C.G.A. § 45-1-4.
88. Defendants’ adverse action caused great damage to Mr. McDonald.
89. The Defendants are liable for all economic and non-economic
damages resulting from this retaliation, pursuant to O.C.G.A. § 45-1-4(e)(2)(D)
and (E).
90. Because reinstatement to his position as Deputy Coroner is not
practicable, Mr. McDonald is entitled to front pay in lieu of reinstatement.
91. Mr. McDonald is entitled to recover damages for lost wages, the loss
of accumulated fringe benefits of employment, loss of retirement income,
diminished future earning capacity, tarnishment of his reputation, great uncertainty
regarding his future, emotional distress, humiliation, and embarrassment, pursuant
to O.C.G.A. § 45-1-4(e)(2)(D) and (E).
92. Mr. McDonald is entitled to recovery of his attorneys’ fees and all
other costs of litigation, pursuant to O.C.G.A. § 45-1-4(f).
COUNT IV
BREACH OF CONTRACT
93. Mr. McDonald incorporates by reference all of the foregoing
paragraphs of this Complaint, as if fully set forth herein.
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94. Pursuant to 2010 Agreement, Mr. McDonald was eligible for holiday
leave on holidays approved by Augusta, and in addition to his holiday pay,
Defendants agreed to pay him overtime for any time worked on a holiday.
95. Mr. McDonald has complied fully with all of his obligations under the
2010 Agreement, and all conditions precedent to Defendants’ obligation to pay
have been met.
96. Despite repeated demands by Mr. McDonald, Defendants have
breached their obligations under the 2010 Agreement by failing to make payments
due and owing to Mr. McDonald.
97. Defendants’ breach was without legal justification or excuse.
98. As a direct and proximate result of said breach, Mr. McDonald has
suffered damages in an amount to be proven at trial.
99. Defendants’ repeated failure to pay Mr. McDonald after his repeated
demands constitutes bad faith under O.C.G.A. § 13-6-11.
COUNT V
ATTORNEYS FEES PURSUANT TO O.C.G.A. § 13-6-11
100. Mr. McDonald incorporates by reference all of the foregoing
paragraphs of this Complaint, as if fully set forth herein.
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101. Through their conduct, Defendants have acted in bad faith, have been
stubbornly litigious, and have caused Mr. McDonald unnecessary trouble and
expense.
102. As a direct and proximate result of Defendants’ conduct,
Mr. McDonald is entitled to recover from Defendant his expense of litigation,
including reasonably attorneys’ fees and costs, pursuant to O.C.G.A. § 13-6-11.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff demands a TRIAL BY JURY and requests the
following relief:
(a) That Plaintiff be granted judgment against Defendants, as requested,
under Counts I - V;
(b) That Plaintiff be granted judgment for unpaid overtime wages,
liquidated damages, and prejudgment interest on unpaid wages;
(c) That Plaintiff be granted compensation including three years of front
pay, any fringe benefits, and any loss of retirement income;
(d) That Plaintiff has and recovers from Defendants back pay and
benefits, with prejudgment interest thereon;
(e) That Plaintiff has and recovers compensatory damages in an amount
to be determined by a jury;
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(f) That Plaintiff has and recovers his costs in this action and a
reasonable attorneys’ fee as provided by law; and
(g) Any and other such further relief that this Court or the Finder of Fact
deems equitable and just.
DEMAND FOR JURY TRIAL
Plaintiff demands a jury trial on all issues triable by jury.
Respectfully submitted this 23rd day of September, 2014.
THRASHER LISS & SMITH, LLC
/s/ Ray S. Smith
RAY S. SMITH III
Georgia Bar No. 662555
Attorney for Plaintiff
Five Concourse Parkway
Suite 2600
Atlanta, Georgia 30328
Telephone 404-760-6000
Facsimile 404-760-0225
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CERTIFICATE OF COMPLIANCE
The undersigned counsel certifies that the foregoing has been prepared in
Times New Roman (14 point) font, as required by the Court in Local Rule 5.l (B).
Respectfully submitted this 23rd day of September, 2014.
THRASHER LISS & SMITH, LLC
/s/ Ray S. Smith
RAY S. SMITH III
Georgia Bar No. 662555
Attorney for Plaintiff
Five Concourse Parkway
Suite 2600
Atlanta, Georgia 30328
Telephone 404-760-6000
Facsimile 404-760-0225
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