Adam J.Conti, LLC - 404.531.0701

STATE OF GEORGIA

DEKALB COUNTY SUPERIOR COURT

JOHN P. DUGAN,

Plaintiff,

Civil Action File No.. 93-CV-11023, 

GEORGIA HOUSING AND
FINANCE AUTHORITY,
AND DAVID B. PINSON IN
HIS INDIVIDUAL CAPACITY,

Defendants

COMPLAINT

I. PARTIES

1.

Plaintiff John P. Dugan resides in Marietta, Georgia and is subject to the jurisdiction of this court.

2.

Defendant Georgia Housing and Finance Authority (GHFA) is an instrumentality of the State of Georgia existing by virtue of Chapter 26, Title 50, O.C.G.A.

3.

Pursuant to O.C.G.A. 50-26-8(a)(2)(1) the GHFA is subject to suit in contract and tort.

4.

The GHFA has offices located in DeKalb County at 60 Executive Park South, NE, Suite 250, Atlanta, Georgia 30329. It may be served personally at that location in care of David B. Pinson, its Acting Executive Director.

5.

Defendant David B. Pinson has, at all times on and after February 6, 1993 held the position of Acting Executive Director of GHFA. He resides in DeKalb County at 897 Highland View, NE, Atlanta, Georgia 30306. He may be served personally at his residence or at his office, 60 Executive Park South, NE, Suite 250, Atlanta, Georgia 30329.

II. JURISDICTION AND VENUE

6.

This action is brought pursuant to O.C.G.A. 45-1-4 which grants a public employee the right to initiate a proceeding in Superior Court to set aside actions taken in violation of that section. Plaintiff is also alleging violations of 42 U.S.C. 1983, the U.S. Constitution and the Constitution of the State of Georgia.

7.

Pursuant to O.C.G.A. 9-10-30 venue is proper in the DeKalb County Superior Court as Defendant GHFA is headquartered within the geographical boundaries of that Court and equitable relief is sought against that Defendant.

III. FACTS

8.

From August 14, 1978 until July 9, 1993 Plaintiff held the position of Finance Director of GHFA and its predecessor agency, the Georgia Residential Finance Authority.

9.

While employed as GHFA Finance Director Plaintiff performed his duties in an exemplary manner such that throughout his tenure the financial strength and health of the GHFA continually improved culminating in Standard and Poor's recognition of it in 1992 as a Top Tier Agency, an honor given only to twelve agencies in the country.

10.

As Finance Director Plaintiff was the Chief Financial Officer of GHFA. Plaintiff was therefore under a professional and ethical duty to ensure that the highest standards of financial propriety were observed at all times by all personnel within the GHFA. This duty extended to his obligation to report suspected improprieties directly to the Board of Directors and to take action to minimize GHFA's potential liability.

11.

Since July 1991 and continuing through the date of Plaintiff's termination, the government of the State of Georgia and the GHFA were under a hiring and salary freeze. During this period, the GHFA Finance Department operated with an extreme staff shortage, its personnel received no salary increases in fiscal year 1992 and salary increases for fiscal year 1993 were capped at 2-1/2% or $1,000.00

12.

In early 1992 a "reorganization" of the GHFA took place under then Executive Director Terry Duvernay. As a result of this "reorganization" several employees of Duvernay's staff received reclassifications that in effect raised their salaries far in excess of the guidelines of the freeze. For example, the Personnel Director, Linda Pryor, received a 15% raise; the internal auditor received a 12% raise; the Executive Counsel received a 9% raise and the Assistant Counsel received a 14% raise.

13.

In the summer of 1992 the GHFA gave the daughter of Hank Huckaby, a previous director of the GHFA and ex-officio member of the GHFA Board of Directors, special consideration as an applicant for employment with the GHFA by granting her a job interview when no interviews were granted to approximately 150 other applicants.

14.

In early 1993 Plaintiff reviewed a record of all salary increases in the GHFA for the prior two years. This review found that there was a concentration of questionable raises among employees in the Executive Department which had been headed by Duvernay. Appellant suspected that the Executive Director had been rewarding his staff by secretly granting them pay increases in violation of both the freeze and his public statements that no exceptions to the freeze would be permitted.

15.

On or about April 15, 1993 when Plaintiff suggested in a Senior Staff meeting that department heads be permitted to raise concerns directly with the Board, Mr. Pinson reminded Plaintiff that the last person to bypass the Executive Director had been terminated.

16.

Several days later Plaintiff mentioned to Mr. Mr. Pinson that he had a concern with payroll that he wished to discuss with the Board Chairman. Mr. Pinson responded by advising Plaintiff that Mr. Pinson desired the Executive Director job on a permanent basis and that if any of his managers raised any concerns with the Board that jeopardized Mr. Pinson's appointment, Mr. Pinson may take action against him.

17.

In mid-June, 1993 Plaintiff advised Mr. Pinson of his concerns regarding the raises that had been given to Executive Department employees during Duvernay's tenure as Executive Director. Plaintiff suggested that he and Mr. Pinson raise this issue with the Board Chairman, Zack Cravey. Mr. Pinson advised Plaintiff that doing so might jeopardize Plaintiff's career.

18.

On or about June 16, 1993 Plaintiff in Mr. Pinson's presence met with Board Chairman Cravey and advised him of the raises and Plaintiff's concerns that they had been made in violation of the freeze.

19.

On or about June 24, the Board appointed a committee to oversee all future raises as a direct result of Plaintiff's concerns.

20.

On a regular and recurring basis from the time he was first hired in 1990, until the date of Plaintiff's discharge, including the time he was Acting Executive Director, Mr. Pinson frequently made vulgar and sexually related remarks to employees of GHFA. On or about June 28, 1993 Plaintiff and Wayne Chisenhall, who had been Controller of the GHFA since December of 1989, gave a letter concerning Mr. Pinson's conduct to Linda Pryor the Human Resources Manager of GHFA. A true and accurate copy of that letter is attached hereto as Exhibit A.

21.

On Friday, July 9, Plaintiff and Mr. Chisenhall, were summarily discharged by Mr. Pinson who refused to provide Plaintiff with a reason for the discharge. A copy of the letter advising Plaintiff of his discharge is attached hereto as Exhibit B.

22.

Plaintiff was not given advance notice of the discharge decision, any opportunity to respond prior to his separation, or any hearing on the decision to terminate his employment. The Board members refused to even speak with Plaintiff after discharge.

23.

The conduct of Defendants as set forth above demonstrates malice, wantonness, willfulness, evil motive or intent and reckless or callous indifference to the protected rights of Plaintiff.

24.

As a result of Plaintiff's discharge, he has been deprived of his livelihood, subjected to great humiliation and mental anguish and subjected to other damages.

IV. COUNT ONE

VIOLATION OF O.C.G.A 45-1-4

25.

Plaintiff's complaints to the GHFA Board of Directors concerning the extraordinary raises given to members of Mr. Duvernay's staff and his letter of June 28 constituted complaints or information protected by O.C.G.A 45-1-4.

26.

Plaintiff's discharge was taken as a reprisal for making a complaint or disclosing information to his Employer in violation of O.C.G.A 45-1-4(d).

COUNT TWO

42 U.S.C. 1983 VIOLATION

27.

Paragraphs one through twenty-six are incorporated by reference as if set forth directly herein.

28.

Plaintiff's communications to the Board Chairman regarding the propriety of the raises given the Executive Director's staff under Mr. Duvernay's terms and Plaintiff's complaint to Ms. Pryor regarding Mr. Pinson's offensive and inappropriate conduct constituted free speech on matters of concern to the public which were protected by the First Amendment to the Constitution of the United States of America.

29.

Plaintiff's complaints to the Board Chairman concerning the pay raises and his complaint to Human Resource Director Pryor concerning Mr. Pinson's conduct constituted petitions to the government for the redress of grievances protected by the First Amendment to the Constitution of the United States of America.

30.

Plaintiff was discharged by the GHFA as a result of his exercise of the First Amendment rights described above in Paragraphs twenty-eight and twenty-nine.

31.

Plaintiff's discharge for the exercise of constitutional rights violates 42 U.S.C. 1983 in that it constitutes a deprivation of rights, privileges and immunities secured by the Constitution by persons acting under color of State law.

COUNT THREE

INFRINGEMENT OF LIBERTY INTEREST

32.

Paragraphs one through thirty-one are hereby incorporated by reference as if set forth directly herein.

33.

Subsequent to Plaintiff's termination, at least one member of the GHFA Board has stated to a third party that Plaintiff was discharged for an incident of improper personal conduct, for having become withdrawn and because Plaintiff had incorrectly reported to the Board on the financial projections for the year ending June 30.

34.

Since the foregoing statements and the manner in which Plaintiff was terminated are stigmatizing and false, they significantly foreclose Plaintiff's possibility of future employment in his chosen field.

35.

The manner in which Plaintiff was terminated and statements made by agents of Defendant GHFA concerning his termination infringed upon Plaintiff's liberty interest in his employment as guaranteed by the Fourteenth Amendment to the Constitution of the United States of America.

COUNT FOUR

PROCEDURAL DUE PROCESS

36.

Paragraphs one through thirty-five are hereby realleged as if set forth directly.

37.

Because Plaintiff was terminated based upon grounds which violated the Constitution and because Plaintiff's termination infringed upon his liberty interest, Plaintiff was entitled to a hearing to accord him an opportunity to address the charges against him.

38.

GHFA's failure to grant him such a hearing violated Plaintiff's right to procedural due process protected by the Fourteenth Amendment to the U.S. Constitution.

COUNT FIVE

VIOLATION OF THE GEORGIA CONSTITUTION

39.

Paragraphs one through thirty-eight are hereby realleged as if set forth herein.

40.

The manner in which Plaintiff was discharged violated his rights to free speech and his right to petition the government for redress of grievances protected by the Article 1, 1, Paragraphs 4 and 9, respectively of the Constitution of the State of Georgia.

41.

The manner in which Plaintiff was discharged and his treatment by the GHFA prior to his discharge violated his right to equal protection of the law guaranteed by Article 1, 1, Paragraph 2 of the Constitution of the State of Georgia.

COUNT SIX

TORTIOUS INTERFERENCE WITH EMPLOYMENT RELATIONSHIP

42.

Paragraphs one through forth-one are hereby realleged as if set forth herein.

43.

As Acting Executive Director of the GHFA Mr. Pinson did not have absolute authority to terminate Plaintiff's employment.

44.

In recommending Plaintiff's employment be terminated Defendant Mr. Pinson acted from improper motives.

45.

Mr. Pinson is liable to Plaintiff for the termination of his employment and the damages resulting therefrom because Mr. Pinson has tortiously interfered with Plaintiff's employment with the Authority.

COUNT SIX

LIABILITY OF DEFENDANT PINSON FOR BREACH OF PLAINTIFF'S

CONSTITUTIONAL RIGHTS

46.

Paragraphs one through forty-five are hereby realleged as if set forth herein.

47.

The constitutional rights of Plaintiff as enumerated above in Counts Two through Four were clearly established at the time of his discharge.

48.

Defendant Pinson in his individual capacity either actually knew, or in the exercise of his duties should have known, of Plaintiff's constitutional rights.

49.

Defendant Pinson in his individual capacity is therefore liable to Plaintiff for breach of his constitutional rights in violation of 42 U.S.C. 1983.

WHEREFORE, the Plaintiff demands that a trial by Jury be had on all Counts and that following such trial judgment be entered on Plaintiff's behalf against Defendant GHFA granting the following relief:

  1. Cancellation of Plaintiff's termination;
  2. Reinstatement of Plaintiff with back pay and such benefits as Plaintiff would have enjoyed had he never been separated;
  3. If reinstatement is impossible under the circumstances, GHFA be ordered to grant Plaintiff front pay until the Plaintiff reaches age sixty-five;
  4. Full and fair monetary damages in an amount to be proven at trial to compensate Plaintiff for the mental anguish, humiliation, pain and suffering and such other damages as resulted from the improper conduct of Defendant GHFA;
  5. Plaintiff's costs of this action including reasonable attorney's fees;
  6. Such punitive damages as are determined by the enlightened conscience of an impartial Jury are warranted to deter Defendant from future conduct of the type proven at trial;
  7. Such further and additional relief as the Court may deem is appropriate.

Furthermore, Plaintiff respectfully requests that the Court enter judgment against Defendant David B. Pinson as follows:

  1. Damages in the amount of the compensation and value of benefits Plaintiff would have received had he continued in employment and not been terminated on July 9, 1993 with pre-judgment interest and full compensation for such benefits as Plaintiff lost;
  2. Full and fair monetary damages in an amount to be proven at trial to compensate Plaintiff for the mental anguish, humiliation, pain and suffering, and such other damages as he resulted from the improper conduct of Defendant Pinson;
  3. Plaintiff's cost of this action including Plaintiff's reasonable attorney's fees;
  4. Such punitive damages as are determined by the enlightened conscience of an impartial Jury are warranted to deter Defendant from future conduct of the type proven at trial;
  5. Such further and additional relief as the Court may deem appropriate.

Respectfully submitted this ______ day of ________, 1993.

____________________________
ADAM J. CONTI
GEORGIA BAR NUMBER 182475
ATTORNEY FOR PLAINTIFF