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Newnan, Ga., landscapers who successfully challenged Fulton County’s affirmative action program now may sue the Georgia county for allegedly retaliating against them. A federal appellate panel has vacated a lower court order that dismissed the retaliation claims of Daniel and Peggy Webster, the white owners of Webster’s Green Thumb Inc. in Newnan. Webster v. Fulton County, No. 00-11644 (11th U.S. Cir. Feb. 28, 2002). In that opinion, the panel also upheld an order from a lower court directing Fulton County to pay the Websters’ attorneys $1.089 million in legal fees. In an opinion written by 11th U.S. Circuit Court of Appeals Judge J.L. Edmondson, the panel remanded the retaliation case to U.S. District Judge Thomas W. Thrash Jr. for further action. In a footnote, the appellate panel wrote, “Many other issues were raised on appeal. We affirm the district court’s decisions, except for its decision dismissing [Webster's] retaliation claim.” “We are right now evaluating what our options are,” Deputy Fulton County Attorney William R. “Randy” Turner said. “Other than that, I don’t have any comment.” Webster’s attorney, Patrick W. McKee, on Tuesday was more direct: “We are going to tee it up and go after them; that’s what we are going to do.” After the company sued the county in 1996, the firm continued to bid on county contracts, McKee said. It lost every bid despite being a low bidder at least once. Co-counsel R. Mason Barge said that, after six years of litigation, “It’s nice to finally have some cash flow. … We will, of course, collect that.” In a 107-page order he issued on Sept. 8, 2000, Thrash wrote that the large fee award “reflects Fulton County’s determination to defend at whatever cost an MFBE [Minority and Female Business Enterprise] program that was legally indefensible.” The appellate panel, which also included 11th Circuit Judge Charles R. Wilson and U.S. District Judge Maurice M. Paul of Florida’s Northern District, determined that a qualified independent contractor may legitimately claim its civil rights have been violated if it has been refused a government contract “in retaliation for the contractor’s filing of a lawsuit charging the governmental entity with a custom or policy of disparate-treatment racial discrimination.” The couple claimed in their suit that the county had refused to hire their landscaping firm in favor of one whose owner was black. At the time the suit was filed, Webster’s Green Thumb was a minority firm, according to the county’s definition, because the firm’s majority owner was a woman. According to the suit, the county’s affirmative action program and its contract compliance officer routinely favored black contractors. After a 1999 bench trial, Thrash agreed and declared the county affirmative action contracting plan to be unconstitutional. In a second trial in 2000, a jury found that the county had discriminated against Webster’s and awarded $8,750 in compensatory damages. The jury declined to award any punitive damages. In the wake of those trials, Thrash awarded Webster’s attorneys $1.089 million in legal fees, which he ordered the county to pay. The 11th Circuit already has upheld the finding that the county’s affirmative action program was unconstitutional and the $8,750 award. The appellate court ruling comes less than two months after a federal jury awarded white Fulton County librarians $25 million in their suit against the Atlanta-Fulton County Library and its board. The librarians claimed they were the victims of reverse discrimination. That ruling is the fourth major discrimination suit successfully brought against the county by white employees.

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