IN THE UNITED STATES DISTRICT
COURT
FOR THE WESTERN DISTRICT OF NORTH
CAROLINA
CHARLOTTE DIVISION
UNITED CONSTRUCTION,
INC.,
:
:
CIVIL ACTION NO. ____________
Plaintiff,
:
:
vs.
:
:
JURY TRIAL REQUESTED
CITY OF CHARLOTTE, NORTH
CAROLINA;
:
PATRICK MCCRORY, in his
official capacity
:
as Mayor of Charlotte,
North Carolina, and
:
PATRICK CANNON, LYNN
WHEELER,
:
JOE WHITE, PATRICK
MUMFORD,
:
HAROLD COGDELL, JR.,
JAMES MITCHELL,
:
JR., DON LOCHMAN, JOHN
TABOR,
:
MALCOLM GRAHAM, SARA
SPENCER, in
:
their official
capacities as members of the City
:
Council of Charlotte,
North Carolina,
:
:
Defendants.
:
COMPLAINT
NOW COMES the Plaintiff
and hereby submits its Complaint against the above named Defendants on the
following grounds:
SUMMARY OF
CASE
The City of Charlotte discriminates
against businesses owned by white males, on the basis of their race and gender,
in awarding construction contracts.
This discrimination is the official policy of the City pursuant to the
City’s “Minority and Women-Owned Business Development Program” (the “MWBD
Program”). A true and accurate copy
of the City’s MWBD Program is attached hereto as Exhibit “A.” Plaintiff herein alleges that the
Program violates the Plaintiff’s right to equal protection of the laws
guaranteed by the Fourteenth Amendment of the United States Constitution and its
right to be free of race discrimination in forming contracts guaranteed by 42
U.S.C. § 1981. Plaintiff seeks to
enjoin this discrimination and to receive compensation for damages suffered due
to such discrimination.
JURISDICTION
1.
The jurisdiction of this
Court is invoked pursuant to 28 U.S.C. §1331 and §1337. The Plaintiff asserts causes of action
under 42 U.S.C. §§1981 and 1983, and the Equal Protection Clause of the
Fourteenth Amendment of the United States
Constitution.
VENUE
2.
Venue is properly laid
in this court under 28 U.S.C. §1391 in that the cause of action arose in this
judicial district and the parties reside in this judicial
district.
PARTIES
3.
The Defendant City of Charlotte
is a municipal corporation created under the laws of the State of North
Carolina, and is subject to actions of this kind and nature. The City may be
served with process through its chief executive officer, Defendant Pat McCrory,
at his business address of Charlotte-Mecklenburg Government Center, 600 East
Fourth Street, Charlotte, North Carolina
28202-2244.
4.
Defendant Patrick McCrory is an
adult citizen of the United States.
He is the mayor and chief executive officer of the City of Charlotte.
McCrory is sued in his official capacity.
He resides in the Western District of North
Carolina and may be served with process
at his business address of
Charlotte-Mecklenburg Government Center, 600 East Fourth Street, Charlotte,
North Carolina 28202-2244
.
5.
Defendants Patrick
Cannon, Lynn Wheeler, Joe White, Patrick Mumford, Harold Cogdell, Jr., James
Mitchell, Jr., Don Lochman, John Tabor, Malcolm Graham, Nancy Carter and Sara
Spencer are adult citizens of the United States. They are each members of the
Charlotte City Council. The City Council members are sued in their official
capacities. They reside in the Western District of North Carolina and may be
served with process at their business address of Charlotte-Mecklenburg
Government Center, 600 East Fourth Street, Charlotte, North Carolina
28202-2244.
6.
Plaintiff United
Construction, Inc. [hereinafter “UCI”] is a North Carolina corporation doing
business in Mecklenburg County, North Carolina.
FACTUAL
ALLEGATIONS
7.
Plaintiff UCI is a
general contractor construction company which has bid for contracts with the
City of Charlotte in the past, and intends to bid for such contracts in the
future.
8.
The City of Charlotte’s
MWBD Program, which has been continuously in force since 1983, applies to all
aspects of the City’s procedure for the award of construction contracts,
including all phases of the process by which such contracts are proposed,
advertised, generated, awarded, and
administered.
9.
The stated purpose of
the MWBD Program is to “ensure maximum use of minority and women owned firms in
all areas of City procurement including goods, apparatus, supplies, materials,
equipment, and professional and contractual services.” To implement this purpose, all proposed
construction contracts for the City are reviewed “with regard to providing
maximum opportunity for participation by MWBD firms.” In fact, it is the City’s stated
policy that it will give a positive evaluation to bids submitted by women and
minority owned firms committing that “all subcontracts let will be awarded to
MWBD firms.” No contract will be
awarded by the City “without the approval of the MWBD Program Director.”
10.
The MWBD Program also
requires that “project specific goals shall be set for all formal contracts and
for construction contracts of $100,000" and all bidders must submit a MWBE
Utilization Commitment form showing the percentage of work that will be awarded
to minority and female owned subcontractors in order to be considered for a
contract with the City. In reality,
these “goals” are de facto racial
and gender quotas.
11.
If a prime contractor’s
MWBE Utilization Commitment form does not demonstrate that the City’s “goal” for minority
participation will be met or exceeded, the City then imposes additional burdens
on prime contractors on the basis of race and gender by requiring the submission
of further documentation detailing the number of telephone calls, follow up calls,
facsimiles and other communications the prime contractor made in soliciting
subcontracts from favored minority firms, to prove that it complied with the
City’s policy of maximizing minority participation by contacting the minority
companies preferred by the City’s MWBD Program.
12.
Even though the Program
has been in force for eighteen years, the City renewed the Program on November
26, 2001, without conducting any further study to determine if racial
discrimination in City contracting is even a factor in inhibiting opportunities
for women or minority-owned companies to get construction work on City funded
projects.
13.
In fact, the City’s most
current study, which was compiled in 1993, concludes there is no gender
discrimination against women owned construction businesses in the Charlotte
market. Nevertheless, the City
continues to include “goals” for participation by women-owned companies in its
construction contracts.
14.
The City’s MWBD Program
constitutes an official policy of race and gender discrimination against
businesses.
15.
The City coerces UCI and
other prime contractors to discriminate against subcontracting companies owned
by white males because, under the requirements of the MWBD Program, bidders must implement
racial and gender preferences in soliciting and allocating subcontracting work
in order to compete for City contracts.
16.
The requirement to
locate and retain the services of minority and women subcontractors constitutes
a considerable expense both in terms of money and in terms of the business
managers’ time and energy, which
they would otherwise spend making a profit for the
business.
17.
Furthermore, the MWBD
Program requires that, if a prime contractor undertakes to subcontract any
portion of a bid ,then it must set aside a specified percentage of the
subcontracting work to minorities and women. Therefore, even though the City has no
evidence of discrimination by its prime contractors, the MWBD Program requires
that prime contractors must give work they could otherwise do with their own
employees to preferred minority and women-owned business in order to meet the
City’s race and gender subcontracting goals. This discriminatory policy and
practice of forcing prime construction contracting firms to give away work they
could otherwise self perform is designed to enable the City of Charlotte to
achieve its defacto racial and general quotas.
18.
In September of 2001,
UCI submitted the lowest bid on the City’s Monroe/Sharon Amity Intersection
Improvements Contract (the “Contract”). However, on October 9, 2001, the City
Council voted to reject UCI’s bid in favor of the bid of SeaLand Contractors
Corporation of Charlotte, even though it was almost $170,000 higher than UCI’s
bid for the project.
19.
The City denied the
Contract to Plaintiff UCI even though UCI was the lowest bidder for the work,
because SeaLand’s bid included an MWBE Utilization Commitment that satisfied the
City’s MWBD Program’s racial and gender goals. In specific, UCI was denied work
by the City because it failed to
“meet the MWBD subcontract goals for this project and also failed to meet
the good faith efforts in obtaining the goals.”
20.
The City rejected UCI’s
bid on the basis of race and gender because it failed to comply with the City’s
policies and practices to “ensure maximum use of minority and women owned firms
in all areas of City [contracting].”
The City awarded the bid to SeaLand based on the dollar value of work
that SeaLand agreed to give to favored minority firms, even though SeaLand’s bid
was not the low bidder on the contract.
21.
All of the Defendants’
conduct alleged herein was accomplished under color of state and local law
pursuant to the policy and custom of the City of
Charlotte.
22.
The City gratuitously
employs racial and gender preferences in its contracting policies despite the
absence of any compelling governmental interest that is supported by a strong
basis in evidence that there is a history of past discrimination against
minority construction businesses either by the City of Charlotte or within the
Charlotte marketplace.
23.
In the alternative, even
if the City actively or passively discriminates against female or minority-owned
businesses, the Program is not narrowly tailored to remedial purposes or any
other compelling state interest. For example, the City of Charlotte did not
adequately implement or evaluate race neutral means for ameliorating such
discrimination prior to implementing and/or summarily renewing the MWBD Program.
Furthermore, the Program is overly broad because it awards racial and gender
preferences to those who have not suffered past discrimination on the basis of
race and gender.
24.
UCI has suffered actual
damages in the form of lost profits and expenses associated with denial of its
bid on the basis of race and gender and its efforts to comply with the
requisites of the unlawful MWBD Program. Furthermore, it continues and will
continue for the foreseeable future, to experience additional expenses and lost
profits associated with its efforts to comply with the racial and gender
preferences of the MWBD Program.
SUBSTANTIVE
ALLEGATIONS
COUNT I: RACE DISCRIMINATION IN VIOLATION
OF
42 U.S.C
§1981
25.
Defendants'
discriminatory racial classifications unlawfully deny contracts to prime
contractors and otherwise burdens prime contractors in all aspects of bidding
and awarding construction contracts and therefore constitutes a clear violation
of 42 U.S.C. §1981, as enforced directly or through 42 U.S.C. §
1983.
26.
Said discrimination was
accomplished with reckless disregard of the Plaintiff’s federally protected
rights.
COUNT
II: RACE AND GENDER DISCRIMINATION
IN VIOLATION OF THE
EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT
27.
Defendants’ refusal to
award a bid to Plaintiff, the imposition of racial classifications which are
designed to coerce and manipulate prime contractors to engage in discriminatory
practices and their pattern or practice of favoring some races and women over
other races and men in all aspects of bidding and awarding contracts, constitute
clear violations of the Equal Protection Clause of the Fourteenth Amendment of
the United States Constitution, as enforced by 42 U.S.C.
§1983.
28.
Said violations were
accomplished with reckless disregard of the Plaintiff’s federally protected
rights.
JURY
TRIAL
29.
Plaintiffs demand trial
by jury on all issues raised herein as to which trial by jury is guaranteed by
the Constitution.
WHEREFORE, Plaintiffs pray and demand that this
Court:
a.
Take jurisdiction of this matter;
b.
Issue a declaratory judgment that the City of Charlotte MWBD Program
violates 42 U.S.C. § 1981 and the Equal Protection Clause of the 14th
Amendment and that the Defendants have engaged in a pattern or practice of
discriminating through imposition of unjustified racial and gender
classifications favoring some races and women in awarding city construction
contracts;
c.
Temporarily, preliminarily and permanently enjoin Defendants 1) from future implementation of the MWBD
Program, 2) from discriminating against businesses on account of their race, in
the bidding and awarding of City construction contracts, and 3) from
discriminating against businesses owned by males on account of their gender in
the bidding and awarding of City construction
contracts;
d.
Retain jurisdiction of the case after award of any injunction, for such
period of time as the Court may deem necessary, and take all steps necessary to
ensure compliance with any injunction;
e.
Award Plaintiff’s pre-judgment interest;
f.
Award Plaintiff’s actual damages, in an amount to be determined in the
enlightened conscience of the jury, to compensate Plaintiff for all monetary
loss it has suffered as a result of Defendants' discriminatory
conduct;
g.
Award Plaintiff’s compensatory damages, in an amount to be determined in
the enlightened conscience of the jury, to compensate Plaintiff for intangible
losses it has suffered as a result of Defendants' discriminatory conduct,
including but not limited to per
se damage suffered as the victims of race and gender discrimination,
loss of business reputation, humiliation, and mental and emotional
distress;
h.
Award Plaintiff’s punitive damages against the individual
Defendants;
i.
Award Plaintiff’s their costs and expenses of this action, including
reasonable attorney's fees as authorized by 42 U.S.C.
§1988;
j.
Grant trial by jury on issues as to which trial by jury is guaranteed by
the
Constitution; and
k.
Award such other and further relief as the court deems just, equitable
and proper.
Respectfully submitted this _____ day of
January, 2001.
__________________________________
Kevin V. Parsons, NC
State Bar # 19226
PARKS, CHESIN, WALBERT
& MILLER, P.C.
521 E. Morehead Street,
Suite 120
Charlotte, North
Carolina 28202
(704)
377-2770
__________________________________
A. Lee Parks, GA State
Bar # 563750
PARKS, CHESIN, WALBERT
& MILLER, P.C.
2600 The
Grand
75 Fourteenth
Street
Atlanta, Georgia 30309
(404)
873-8000
___________________________________
Valle S. Dutcher,
GA
State Bar # 235960
SOUTHEASTERN LEGAL
FOUNDATION, INC.
3340 Peachtree Rd.,
NE
Suite
2515
Atlanta, GA
30326
(404)
365-8500
Attorneys
for Plaintiffs