It's not over: Plaintiffs' attorney says judge could order promotions and back pay in Darr gender discrimination lawsuit

chwilliams@ledger-enquirer.comSeptember 21, 2013 

After two years of legal sparring, an eight-day trial and more than 20 hours of jury deliberation that rendered a split verdict, the gender discrimination case brought by two female Muscogee County Sheriff's Office deputies against Sheriff John Darr is not over.

In fact, it may be a long way from over.

Donna Tompkins and Joan Wynn -- both lieutenants and longtime employees in the sheriff's office -- sued Darr and the city of Columbus when they were denied an April 2010 promotion that went to Charles Shafer, a 30-plus year male jailer whom the women claimed was less qualified.

The U.S. District Court jury decided Wednesday after hearing testimony from all the principals involved that Darr discriminated against Wynn and Tompkins. But in what one juror called a compromise verdict, the jury awarded no back pay, no compensatory damages for emotional distress and no punitive damages.

Both sides walked out of the Columbus federal courthouse last week claiming victory.

Kelly Timmons, a Georgia State University law professor who teaches employment and civil rights law, called it a "split-the-baby verdict." Timmons said she understood why both sides were claiming victory, but it is far more complicated than that.

"It depends on the perspective," Timmons said. "But I would say that it is not a win for either of them. To the extent the county or sheriff claim victory, the jury found there was impermissible discrimination. That is not a victory for the county or the sheriff.

"On the other hand, if the plaintiffs are happy that the jury recognized that the county or the sheriff did wrong, then that is good. But they don't get much more than that."

Edward Buckley, an Atlanta attorney who represented Tompkins and Wynn and has spent more than 30 years arguing discrimination cases across Georgia, disagrees.

"I understand what she is saying, but I think she's wrong," Buckley said of the Georgia State law professor. "And here's why I think she is wrong: By the jury finding liability, it triggers certain rights, commonly referred to as equitable relief. The sheriff could be ordered to do certain things such as promote or give back pay."

Back to Land

The verdict will put the case back in front of Judge Clay Land. The judge made a crucial ruling two months before the case went to trial when he dismissed First Amendment claims by Tompkins and former sheriff's office Maj. Teri Ezell. By the time the case reached court on Sept. 9, Ezell was out as a plaintiff.

Tompkins and Ezell both supported former Sheriff Ralph Johnson when he was defeated by Darr in 2008. They claimed Darr retaliated against them, but Land disagreed. Buckley has said he will appeal Land's decision on the free speech claim to the U.S. Court of Appeals, 11th Circuit.

But before it gets to the 11th Circuit, Buckley still has a case to make to Land in the wake of the verdict.

After a couple of days to digest the verdict, Buckley repeated what he said moments after the trial. He will file motions asking Land to promote both women to captain and compensate them for the $21,000 to $23,000 in wages lost since the 2010 promotion of Shafer. He will also ask for financial compensation for lost wages from the time of the verdict.

City attorney Clifton Fay said the city and Darr will fight those motions and others filed by the plaintiffs.

Land set an Oct. 4 deadline for any motions to be filed by the plaintiffs. Anticipating those motions, the judge has set a response deadline for the defense and a Nov. 18 court date to hear them. In his order setting the court date, Land opened the door for additional testimony that was not heard in the trial.

Buckley said he is also considering other possible motions, including asking Land to order how sheriff's office promotions occur at certain ranks.

Tom Eaton, a University of Georgia law professor with 35 years experience teaching civil rights litigation, said there was "a fundamental inconsistency" in the verdict that has opened the door for future arguments before Land.

"The jury is saying there is a wrong committed, but then no damages are awarded," Eaton said.

Columbus attorney Maxine Hardy, who has been practicing employment and discrimination law for more than two decades and has been involved in cases against the city, said it has been her experience that Land has a lot of leeway at this juncture.

"In my mind, the plaintiffs still have a claim for equitable relief," Hardy said. "The judge has a lot of options available at this point. He can order promotions, back pay, front pay or attorneys' fees."

Attorneys' fee

If the jury had awarded damages in any amount -- even $1 -- the city would have been responsible for paying Buckley and his firm for their work. Buckley said he will file a motion with Land asking for attorneys' fees.

Cases of this length and complexity can generate legal fees and expenses of $250,000 or more, said both Hardy and Gwyn Newsom, a longtime Columbus employment law and discrimination attorney. The amount of attorneys' fees are at the judge's discretion.

Timmons said she believes the attorneys for Wynn and Tompkins have a stronger argument for recouping attorneys' fees than they do for getting the judge to order their clients be promoted or given compensation.

"One thing to keep in mind, when both sides are claiming victory it can be an uncomfortable position for the plaintiffs' attorneys," Timmons said.

In two cases against the city that went to trial in the last five years, Newsom and Hardy were awarded legal fees. In a 2008 gender and racial discrimination case filed by former undercover Columbus Police officer Alicia Daveneport, the jury found there was gender discrimination, but not racial discrimination.

Davenport was awarded $5,000 in damages. The attorneys were awarded more than $125,000 in fees and costs, paid by the city.

Former Columbus Police officer Byron Hickey was awarded more than $300,000 in a 2010 retaliation suit against the city. In the Hickey case against the city and police department, about $185,000 in attorney fees and costs were awarded by the court.

"While the attorney fees petitions might appear to be large, they are compensation for hundreds of hours of work over years of time," Hardy said.

Eaton, the UGA law professor, said he believes the plaintiffs' attorneys will have a difficult time recovering legal fees from the city. He pointed to a recent ruling by the 11th Circuit, the federal appeals court for Georgia. In Gray vs. Bostic, the appeals court upheld an ruling in the Northern District of Alabama that denied attorneys' fees to lawyers representing elementary school students who were detained and handcuffed by a sheriff's deputy. The jury found for the plaintiffs and awarded $1 in damages. Because it was a civil rights violation case, it is comparable, Eaton said.

"The attorney fees were denied because the damages were not substantial," Eaton said.

Newsom, who has tried a number of discrimination cases, called the verdict "a sucker punch" for the plaintiffs and said additional arguments are going to be difficult because there is a jury verdict that says there was discrimination, but it has no value.

"I can see where both sides are saying they won this," Newsom said, "but it is a definite monetary win for the city at this point."

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