575 F.3d 1281 (11th Cir. 2009), 06-16591, Bryant v. CEO DeKalb Co.

Docket Nº:06-16591.
Citation:575 F.3d 1281
Opinion Judge:TJOFLAT, Circuit Judge:
Party Name:Michael BRYANT, John Drake, Becky Kelley, Herbert Lowe, Plaintiffs-Appellees, v. CEO DeKALB CO. Vernon JONES, Marilyn Boyd Drew, Morris Williams, Richard Stogner, in their individual capacities and in their official capacities, Defendants-Appellants, Joe Stone, Defendant.
Attorney:Robert B. Remar, Kerri A. Gildow, Rogers & Hardin, LLP, Brent L. Wilson, Sharon P. Morgan, Elarbee, Thompson, Sapp & Wilson, LLP, Atlanta, GA, for Defendants-Appellants. James Hollis, Michael J. Bowers, Christopher S. Anulewicz, K. Alex Khoury, Balch & Bingham, LLP, Atlanta, GA, John T. Morgan, I...
Judge Panel:Before TJOFLAT, ANDERSON and COX, Circuit Judges.
Case Date:July 31, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1281

575 F.3d 1281 (11th Cir. 2009)

Michael BRYANT, John Drake, Becky Kelley, Herbert Lowe, Plaintiffs-Appellees,

v.

CEO DeKALB CO. Vernon JONES, Marilyn Boyd Drew, Morris Williams, Richard Stogner, in their individual capacities and in their official capacities, Defendants-Appellants,

Joe Stone, Defendant.

No. 06-16591.

United States Court of Appeals, Eleventh Circuit.

July 31, 2009

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Robert B. Remar, Kerri A. Gildow, Rogers & Hardin, LLP, Brent L. Wilson, Sharon P. Morgan, Elarbee, Thompson, Sapp & Wilson, LLP, Atlanta, GA, for Defendants-Appellants.

James Hollis, Michael J. Bowers, Christopher S. Anulewicz, K. Alex Khoury, Balch & Bingham, LLP, Atlanta, GA, John T. Morgan, III, Decatur, GA, for Plaintiffs-Appellees.

Appeals from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, ANDERSON and COX, Circuit Judges.

TJOFLAT, Circuit Judge:

In 2001, DeKalb County, Georgia embarked on a wholesale plan to replace its white county managers with African Americans. Three white managers, Becky Kelley, Michael Bryant, and John Drake, proceeding under 42 U.S.C. § 1983, sued the county's Chief Executive Officer, Vernon Jones, who devised the plan and monitored its execution, and three subordinates who assisted him, Marilyn Boyd Drew, Morris Williams, and Richard Stogner, for discriminating against them on account of their race in violation of 42 U.S.C. § 19811 and the Equal Protection Clause of the Fourteenth Amendment. A fourth manager, Herbert Lowe, an African American, also joined the suit, alleging that the defendants retaliated against him because he refused to assist them in carrying out Jones's plan of racial discrimination.

All defendants claimed as an affirmative defense that they were entitled to qualified immunity; Stogner additionally asserted that he was entitled to legislative immunity. The defendants moved the district court for summary judgment, basing their motions on these immunity defenses. The court denied the defendants' motions, and they appeal.2 We now affirm the district court's rulings on qualified immunity but reverse the court's denial of Stogner's defense of legislative immunity.

I.

A.3

In November 2000, Vernon Jones was elected DeKalb County's Chief Executive Officer ("CEO").4 Jones was both the youngest person elected as CEO of the county and also the first African American elected to the position. After assuming office on January 1, 2001, Jones publicly announced plans to make the employees of DeKalb County " look like DeKalb County." Jones later explained that this meant

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bringing a " darker administration" to " the new DeKalb County." To accomplish this goal, Jones and his administration implemented an aggressive restructuring program of the county's government.5 One part of this reorganization focused on the management of the county's Parks and Recreation Department ("Parks Department").

Jones's policy initiatives, which he specifically aimed at the Parks Department, were implemented by members of the county's senior management who were positioned either within DeKalb County generally or the Parks Department specifically. These managers included Richard Stogner, a white male who served as Jones's executive assistant; Morris Williams, a black male who served as an Assistant County Administrator; and Marilyn Boyd Drew, a black female who initially served as the Parks Department's Director of Recreation Services but was soon promoted to the position of Acting Director of the Parks Department and later named permanent director of the department.

At the time Jones assumed office, Becky Kelley, a white female who had been employed by DeKalb County since 1976, was Director of the Parks Department-a position she had held since 1992. Kelley exercised authority over the department's operations and programs. Michael Bryant, a white male, was Deputy Director of Revenue Management and Support in the Parks Department, and he reported to Kelley. Bryant had served in the position since 2000. John Drake, a white male who was first employed by the county in 1975, was serving as the Assistant Director of the Purchasing and Contracting Department. Herbert Lowe, an African American male, was hired on September 16, 2002, as the Deputy Director of Strategic Management and Development of the Parks Department.

Kelley, Bryant, and Drake allege that, as a result of Jones's plan to create a " darker administration," they were discriminated against and exposed to a hostile work environment on account of their race. Jones's goal, they claim, was to force them to terminate their employment so he could replace them with African American managers. Lowe, on the other hand, claims that he refused to cooperate in Jones's plan to force out white managers, leading Jones and his administration to eliminate his job in retaliation.

B.

1.

During her nine years of service as Parks Department Director, Kelley had performed her duties without complaint. Kelley claims, however, that from the instant Jones became CEO he was openly hostile towards her. For instance, during a phone call, Jones became very angry and confrontational with her. On a second occasion, while in a private meeting in Jones's office, Jones screamed at Kelley and approached her in a menacing way, leading her to fear that he was going to strike her.

Jones also began imposing restrictions on Kelley's job duties by prohibiting her from communicating with members of the press and DeKalb County's Board of Commissioners. When Kelley expressed concern over her treatment to Stogner, he replied that " she didn't understand the geopolitical issues in DeKalb County and

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that she could not relate to powerful black men." 6

Kelley's job responsibilities were further limited when Jones prohibited her from interviewing employment candidates unless Williams was present. Consistent with this new policy, Kelley and Williams interviewed candidates for the position of Parks Department Deputy Director of Recreation Services. After conducting several interviews, Kelley, based on her years of experience in the Parks Department, determined that a white male was the top candidate. Williams, however, told Kelley that they could not recommend the candidate to Jones because Jones would not accept a white candidate for the position. Stogner later directed Kelley to recommend Drew, a less qualified African American candidate, for the position so that Kelley could " get in good" with Williams. Drew was hired on April 30, 2001.

After Drew was hired, Jones and Williams continued to narrow the scope of Kelley's responsibilities by excluding her from all discussions and decisions regarding the operations of the Parks Department. Instead, Jones and Williams began to coordinate with Drew, who was Kelley's subordinate. Kelley was also excluded from participating in the Parks Department's hiring process. According to Stogner, Kelley was shut out of the Parks Department's decision making process because Jones wanted " to showcase black parks and showcase black employees."

Without warning or explanation, Jones issued an executive order on February 12, 2002, which Stogner drafted, removing Kelley as Parks Department Director and reassigning her to the county's Greenspace Program.7 Jones then appointed Drew to serve as Acting Director of the Parks Department. Although Kelley's reassignment did not affect her salary or benefits, it did bring about a significant change in her duties and authority. For instance, Kelley had no title, and she reported to an Assistant County Administrator8 rather than the CEO's office. Drew also attempted to move Kelley to a windowless office that had previously been used as a storage area.9 While in the Greenspace Program, Kelley found that any input she offered concerning the program was ignored, causing her to conclude that she had no authority or responsibility-in fact, she described her job as " coloring maps." 10 On September 25, 2002, seven months after her reassignment, Kelley submitted her resignation, effective October 9, 2002.

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2.

After Drew became Parks Department Director, Bryant alleged that she, at Jones's urging, began making numerous changes within the department that adversely affected him.11 For instance, Drew began assigning Bryant, who served as the Deputy Director of Revenue Management and Support, duties ordinarily performed by the Deputy Director of Recreation Services. Also, in March 2002, after Bryant complained to Drew about what he considered to be excessive expenditures made by a black contractor who had been hired to perform services at the county golf course, Drew reassigned fiscal and contracting oversight for golf and tennis contracts from Bryant to Drake. Drew assigned operational responsibilities for golf and tennis contracts to Detrick Stanford, a black employee who reported to Drew.

Approximately sixty days after Drew changed Bryant's duties, she moved him from the Parks Department's primary office in Decatur to a satellite office in Tucker, Georgia. Bryant claims that he made numerous requests for personnel and equipment to assist him, but these requests were denied. Drew also excluded him from making decisions and participating in meetings concerning matters for which he was responsible while she sought greater input from African American managers. Drew also required Bryant and other white managers to schedule appointments if they wanted to...

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