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A federal appellate panel in Atlanta has affirmed a $16.6 million verdict against officials of the Atlanta-Fulton County Public Library, saying they intentionally discriminated against seven librarians because they were white and then “used trickery and deceit to cover it up.” Balch & Bingham partner Kelly Jean Beard, who represented the librarians, said Monday that the ruling clearly reflected the appellate panel’s “frustration with Fulton County for their belligerent bigotry against white workers. They talked about how Fulton County has been slapped time and time again for its treatment of white employees and yet they continue to disregard federal law. They are just unrepentant and completely belligerent.” The opinion was written by Circuit Judge Susan H. Black. The three-judge panel — which also included Circuit Judge Joel F. Dubina and U.S. District Judge Kenneth L. Ryskamp of the Southern District of Florida, sitting by designation — issued its opinion late Friday, Bogle v. McClure, No. 02-13213 (11th U.S. Cir., June 6, 2003). The library board was represented on appeal by King & Spalding partner Griffin B. Bell, a former U.S. attorney general. When the case reached the 11th Circuit, Bell squared off in court against former Georgia Attorney General Michael J. Bowers, now a partner at Balch & Bingham. The librarians originally were represented by Meadows, Ichter & Bowers, which was acquired recently by Birmingham-based B&B. Bell and K&S partner Hoyt Lane Dennard Jr. had argued on appeal that Fulton County library officials were protected from civil litigation by qualified immunity because they could not have been expected to know that transfers of seven white librarians from management positions in the central library in downtown Atlanta to menial jobs in outlying branches was a violation of federal employment laws. OVERHAUL CALLED A ‘SHAM’ The two attorneys also had argued that the transfers were part of a race-neutral, systemwide reorganization. However, Black’s opinion dubbed the reorganization “a sham designed to cover up the race-based transfers.” Neither Bell nor Lane returned calls for comment. The panel also tossed out Fulton County’s objections to a verdict that initially included $1 million in compensatory damages and $2 million in punitive damages for each of eight librarians. U.S. District Judge Beverly B. Martin, who tried the case in January 2002, later reduced the verdict to $16.6 million and eliminated as a plaintiff one librarian who was transferred to a branch but remained a supervisor. The other librarians have decided to share the judgment with her, Beard said. The judgment has been accruing interest at at the rate of approximately $1,000 a day, she said. The appellate opinion called the discrimination “more than mere accident.” “There was enough evidence that, in the face of repeated warnings, [county library officials] intentionally discriminated against the librarians on the basis of race and used trickery and deceit to cover it up under the guise of a ‘reorganization,’ ” the opinion stated. That discrimination took place, the opinion continued, “ with full knowledge of recent cases of employment discrimination brought by Caucasian employees against other Fulton County officials which resulted in injury verdicts for the plaintiffs or settlements. “A reasonable jury could have concluded from the evidence that appellants knew that transferring the librarians on the basis of race was illegal, were warned not to make the transfers, and knew that other Fulton County officials had been caught and punished for making employment decisions on the basis of race; yet appellants intentionally discriminated against the librarians and concocted the ‘reorganization’ plan to hide their discriminatory motives.” COUNTY ATTORNEY ‘DISAPPOINTED’ Fulton County Attorney Overtis Hicks “O.V.” Brantley, whose office defended the library board members and executive director Mary Kay Hooker in U.S. District Court, said Monday that she was “very disappointed” with the ruling and anticipates that she will recommend to the Fulton County Commission that the county seek an en banc reconsideration of the case. “I think it’s an important case,” Brantley said. “I think it has important ramifications for all employers, particularly as it relates to the amount of damages that are awarded. It’s fairly unprecedented for plaintiffs with no actual damages to receive this type of award.” County attorneys argued that even though the white librarians were transferred from managerial positions to jobs shelving books and cleaning refrigerators, no discrimination took place because their salaries remained the same. But the opinion noted that previous appellate rulings have established that a plaintiff may be compensated for intangible, psychological injuries as well as financial or physical harm. TRICKERY CLAIM OPPOSED Brantley also described the opinion’s allegations of trickery and deceit as “somewhat preachy” and suggested that she would have preferred “seeing more legal analysis than what appeared to me to be an emotional view of the case.” Michael B. Terry, a partner at Bondurant, Mixson & Elmore who assisted attorneys at Balch & Bingham in Atlanta with the librarians’ appeal, said Monday that an en banc hearing by the 11th Circuit is unlikely and would be “a waste of the taxpayers’ money.” Bondurant partner Joshua F. Thorpe assisted with the appeal. B&B associate Christopher S. Anulewicz also assisted with the case. “I’m not going to predict what courts will or might do,” Bowers said after learning that Brantley might ask for an en banc hearing. “All I can tell you is that this is a significant step along the way in upholding the verdict. The legal analysis, to my way of thinking, is as strong as potash.” Bowers co-counsel Beard said that until the day the trial began in January 2002, the librarians had been willing to settle the case in return for being restored to their former jobs at the downtown library. “These women were willing to walk away without a dime in their pockets,” she said. “All they wanted was to get their jobs back and not be discriminated against.” Even after the jury handed down what was originally a nearly $25 million verdict, Beard said that she and Bowers had offered to mediate the judgment before Martin, who had agreed to act as mediator after trying the case. County attorneys refused, she said. Evidence presented during the trial included a document compiled by library officials called “Branch & Unit Management by Race,” which contained the race and gender of the library system’s managers. That document was compiled after black board members complained that there were too many white females working in management at the downtown library. The library is governed by a 17-member board of trustees. Those found liable by the jury included board chairman William McClure, Benjamin Jenkins, chairman of the board’s personnel committee; board member and personnel committee member Mary Jamerson Ward, and director Hooker. Ward had complained of a “white dominated administration” at the downtown library and had told a fellow board member it “was not welcoming to black folks to see so many white faces,” the appellate opinion stated. Among those transferred was Maureen Kelly, a librarian with a master’s degree. She was transferred from the central library, where she managed 19 people, to an Alpharetta branch where she was told to shelve books and clean computer screens, Beard said. Another librarian, Mary Stark, remained in the downtown library but was stripped of all supervisory duties, Beard said. Instead, she was placed under the supervision of a male librarian who had been sanctioned by the library system for repeated sexual harrassment of female employees, Beard said. Beard said that racial debate which with the librarians’ transfers in 2000 is “very sad.” “With this verdict, I think we all have really heavy hearts that we can’t get beyond this, that Fulton County is unable to accept the state of the law,” she said.

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