LEE GENERAL CONTRACTORS, INC.;

CATHERINE W. LEE; :

STEVE LEE; NICHOLS & ASSOCIATES, : CIVIL ACTION FILE

INC; CHARLES NICHOLS; : NO.

CONTINENTAL PIPE SERVICES, INC.; :

RANDY ASKEA; PEACHTREE :

MECHANICAL, INC.; :

CHARLENE DENNEY, :

:

Plaintiffs,

:

vs. :

: JURY TRIAL REQUESTED

CITY OF ATLANTA, GEORGIA; :

WILLIAM CAMPBELL, individually and in his :

official capacity as Mayor of Atlanta; FELICIA :

STRONG-WHITAKER, individually and in her :

official capacity; MARIO AVERY, individually :

and in his official capacity; HUBERT OWENS, :

individually and in his official capacity; SUSAN :

PEASE LANGFORD, individually; HUGH :

MCCALL, individually and in his official capacity; :

SUSAN BRONSTON, individually and in her :

official capacity, :

:

Defendants. :

NOW COME the Plaintiffs and hereby submit their Complaint against the above named Defendants on the following grounds:

The City of Atlanta 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 "Equal Business Opportunity Program". Plaintiffs herein allege that the Program violates the Plaintiffs' right to equal protection of the laws guaranteed by the Fourteenth Amendment of the United States Constitution and their right to be free of race discrimination in forming contracts guaranteed by 42 U.S.C. § 1981. Plaintiffs seek to enjoin this discrimination and to receive compensation for damages suffered due to such discrimination.

The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §1331 and §1337. The Plaintiffs assert 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 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.

The Defendant City of Atlanta is a municipal corporation created under the laws of the State of Georgia, and is subject to actions of this kind and nature. The City may be served with process through its chief executive officer, Defendant William Campbell, at his business address of City Hall, 55 Trinity Avenue, SW, Atlanta, Georgia 30335.

Defendant William Campbell an adult citizen of the United States. He is the mayor and chief executive officer of the City of Atlanta. Campbell is sued in his official and individual capacities. He resides in the Northern District of Georgia and may be served with process at his business address of City Hall, 55 Trinity Avenue, SW, Atlanta, Georgia 30335.

Defendant Susan Bronston is currently the Interim Director of the Mayor's Office of Contract Compliance. Bronston is sued in her official and individual capacities. She may be served with process at her business address of 68 Mitchell Street, SW, Suite 2400, Atlanta, Georgia, 30335.

Defendant Susan Pease Langford was, at the time of the events described herein, the Interim Director of the Mayor's Office of Contract Compliance. Langford is sued in her individual capacity and may be served with process at her business address of 68 Mitchell Street, SW, Suite 2400, Atlanta, Georgia, 30335.

Defendant Felicia Strong-Whitaker was, at the time of the events described herein (and to Plaintiff's information and belief continues to be) the Director of the Bureau of Purchasing & Real Estate Compliance for the City of Atlanta. Strong-Whitaker is sued individually and in her official capacity. Strong-Whitaker may be served with process at her business address of 55 Trinity Avenue, SW, Atlanta, Georgia, 30335.

Defendant Hugh McCall was, at the time of the events described herein (and to Plaintiff's information and belief continues to be), Commissioner of the Department of Administrative Services for the City of Atlanta. McCall is sued individually and in his official capacity and may be served with process at his business address of 55 Trinity Avenue, SW, Atlanta, Georgia, 30335.

Defendant Mario Avery was, at the time of the events described herein (and to Plaintiff's information and belief continues to be), a purchasing agent or official for the City of Atlanta. Avery is sued individually and in his official capacity and may be served with process at his business address of 55 Trinity Avenue, SW, Atlanta, Georgia, 30335.

Defendant Hubert Owens was to Plaintiffs' information and belief, at the time of the events described herein (and to Plaintiff's information and belief continues to be), a purchasing agent for the City of Atlanta. Owens is sued individually and in his official capacity and may be served with process at his business address of 55 Trinity Avenue, SW, Atlanta, Georgia, 30335.

Plaintiff Lee General Contracting, Inc., [hereinafter "LGC"] is a Georgia corporation doing business in Fulton County, Georgia.

Plaintiff Catherine W. Lee is a white female residing in Rockdale County, Georgia. She is the sole stockholder and Secretary/Treasurer of Plaintiff Lee General Contracting, Inc.

Plaintiff Steve Lee is a white male residing in Rockdale County, Georgia. He is the President of Plaintiff Lee General Contracting, Inc.

Plaintiff Nichols & Associates, Inc., is a Georgia corporation doing business in Fulton County, Georgia.

Plaintiff Charles Nichols is a white male residing within the Northern District of Georgia. He is the President and sole stockholder of Plaintiff Nichols & Associates, Inc.

Plaintiff Continental Pipe Services, Inc., is a Georgia corporation doing business in Fulton County, Georgia.

Plaintiff Randy Askea is a white male residing in the Northern District of Georgia. He is the President and sole stockholder of Plaintiff Continental Pipe Services, Inc.

Plaintiff Peachtree Mechanical, Inc., is a Georgia corporation doing business in Fulton County, Georgia.

Plaintiff Charlene Denney is a white female residing in the Northern District of Georgia. She is the President and majority stockholder of Plaintiff Peachtree Mechanical, Inc.

Plaintiffs LGC, Continental, Nichols & Associates, and Peachtree Mechanical (hereinafter "Corporate Plaintiffs") are construction companies which have bid for contracts with the City of Atlanta in the past, and intend to bid for such contracts in the future. Plaintiffs Continental and Peachtree Mechanical are construction companies that have worked or attempted to work as subcontractors on contracts awarded by the City of Atlanta and intend to pursue such subcontracting activities in the future.

21.

The City has in effect a formal written program (including an ordinance, regulations, policies, and other documents) adopted in 1995, entitled the "City of Atlanta Equal Business Opportunity Program" (hereinafter referred to as the "written EBO Program"), which applies to all aspects of the City's awarding of construction contracts. (Throughout this Complaint, Plaintiffs used the term "awarding construction contracts" to include all phases of the process by which such contracts are proposed, advertised, generated, awarded, and administered.) The written EBO Program constitutes an official policy of race and gender discrimination against businesses owned by white males.

Although the terms of the EBO Program are nominally contained in these written documents, in practice the City retains almost complete discretion to ignore, modify, or expand upon the written provisions. The actual terms of the EBO Program [hereinafter referred to as the "actual EBO Program"] are different from and more onerous to white-owned and male-owned businesses than the terms that appear in the written EBO Program. The Atlanta City Council and Defendant Campbell have officially adopted these unwritten terms by active participation in their implementation and by ratification of their effects. The actual EBO Program is a custom or policy of the City of Atlanta.

The terms of the actual EBO Program serves to increase the amount of contract dollars awarded to businesses owned by African-Americans, and reduce the amount of contract dollars awarded to businesses owned by persons of all other ethnicities, including Caucasian, Asian, Hispanic, Arab, and Native American. If the EBO Program (written and actual) were eliminated, participation in contracts by Asian, Hispanic, Arab, and Native American owned businesses would increase.

Pursuant to the actual EBO Program, the City attempts to force general contractors (and subcontractors who further subcontract work) to award subcontracts in a manner which discriminates in favor of businesses owned by African-Americans and women, and against businesses owned by males and persons of other ethnicities.

The EBO Program has a stated goal of awarding 30% of all dollars spent on construction projects to businesses owned by African-Americans, and 3 % to businesses owned by women. In reality, these "goals" are de facto quotas. Although businesses owned by white males may seek and possibly obtain waivers of these goals in individual cases, the process of obtaining a waiver, in itself, 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.

The EBO Program (both actual and written) places greater burdens on white-owned businesses than on African-American-owned businesses.

The EBO Program (both actual and written) places greater burdens on male-owned businesses than on female-owned businesses.

28.

Defendant City of Atlanta has a policy and a pattern or practice of discriminating in favor of businesses owned by African-Americans and against businesses owned by white persons in awarding construction contracts.

Defendant City of Atlanta has a policy and a pattern or practice of discriminating in favor of businesses owned by women and against businesses owned by men in awarding construction contracts.

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 Atlanta.

In the alternative, even if the City actively or passively discriminates against female- and minority-owned businesses, it did not adequately implement or evaluate race neutral means for ameliorating such discrimination prior to implementing the EBO Program, and the EBO Program is not narrowly tailored to remedy current discrimination.

One actual and improper purpose of the actual EBO Program is to steer City contracting dollars to racially favored firms, where the City could have obtained the same goods and services at a lower price by a fair, legal, race-neutral and gender-neutral bid process. This practice has become a policy or custom of the City of Atlanta by the knowing refusal of the City to put an end to it.

In 1999, Defendants Avery, Langford, Owens, Strong-Whitaker, Campbell, and City of Atlanta acted to deny a contract to Plaintiff LGC due to the race of Plaintiffs Catherine Lee and Steve Lee. The Lees and their company were initially disqualified from performing a construction contract because they did not include sufficient minority and/or female subcontractors in their bid proposal, the City rejected LGC's bid due to insufficient African-American subcontracts, even though LGC was the lowest responsible bidder for the work and there were admittedly no African-American contractors available to do the work at a reasonable price. LGC was therefore forced to hire counsel to appeal this decision. The decision was reversed on appeal, and LGC was eventually awarded the contract. LGC and Steve Lee suffered actual damages in having to pay counsel, and in having to take time to comply with the EBO Program and to prosecute the appeal. The time spent in this matter by Steve Lee reduced the amount of time available for him to perform productive work for LGC, thus damaging himself, Catherine Lee, and LGC.

Through application of the actual EBO Program, the City has denied one or more contracts to Nichols & Associates, Inc., for which it was (or would have been if not for the Program) the lowest responsible bidder, due to the race and gender of its owner, Charles Nichols. Through application of the actual EBO Program, the City has denied one or more contracts to LGC, for which it was (or would have been if not for the Program) the lowest responsible bidder, due to the race of its owner, Catherine Lee. Through application of the actual EBO Program, the City has denied contracts to Peachtree Mechanical, for which it was (or would have been if not for the Program) the lowest responsible bidder, due to the race of its owners, Charlene Denney and Dickie Denney. Through application of the actual EBO Program, the City has denied contracts to Continental Pipe, for which it was (or would have been if not for the Program) the lowest responsible bidder, due to the race and gender of its owner, Randy Askea.

In 1998, Plaintiff Denney informed city official Rholanda Malveaux that Peachtree Mechanical was interested in bidding on the citywide HVAC contract. Ms. Malveaux assured Denney that she would inform Peachtree Mechanical when the contract came up for bid. Peachtree Mechanical has never been contacted. On information and belief, since June 15, 1998, the City has awarded all work under the citywide HVAC contract to an African-American business without putting the contract up for public bid, in order to deny Denney the ability to bid upon it and award the work to another business based on the race of that business' owner or owners. In the alternative, the City has intentionally failed and refused to notify Peachtree Mechanical of the bid in order to prevent Peachtree Mechanical from bidding on and receiving the contract, due to Ms. Denney's race, white.

Pursuant to the actual EBO Program, since approximately 1994 and, on information and belief, continuing until the present time, the City, prime construction contractors with the City, and the other Defendants have awarded in excess of one million dollars in contracts and subcontracts for construction and repair of pipeline to DSI, Inc. Plaintiff Continental Pipe has stood ready and able to bid and perform some of this work at a lower price than DSI and has been damaged by the City's actions in not putting the work up for open bidding, or in pressuring or requiring prime contractors not to accept lower bids from Continental Pipe. The reason for the City's actions is that the majority owner or owners of DSI are African-American and Askea is not.

Further, to Plaintiffs' information and belief, DSI and other businesses, because they are owned by African-American political supporters of Defendant Campbell, are awarded contracts (or subcontracts) which they are not fully qualified to perform and which they intend to subcontract at a price substantially less then they are paid by the City (or the prime contractor), under circumstances in which a non-African-American business would not be allowed to act in such a manner or in violation of standard industry practice. Based on this allegation, Plaintiffs show that one actual purpose of the actual EBO Program is to channel public funds to political supporters of Defendant Bill Campbell. This practice has become a policy or custom of the City of Atlanta by the knowing refusal of the City to put an end to it.

The actual EBO Program regularly forces non-African-American businesses to pay higher than market rates to African-American subcontractors on account of race . The actual EBO program regularly allows or requires that African-American-owned contractors and subcontractors (but not others) be paid at rates substantially higher than market rates.

To Plaintiffs' information and belief, the City fails to put millions of dollars of work on sewer and other pipes up for bid because it wants the money to go to DSI and other African-American businesses and knows that the work will be bid much more inexpensively by non-African-American businesses, including Plaintiffs Continental Pipe and Randy Askea. The intention and effect of this practice is to deny contracts to Continental Pipe and Askea because of Askea's race, white. Askea and Continental Pipe have suffered actual damages from the inability to bid upon and receive these contracts.

The actual EBO Program has discouraged Plaintiffs Continental Pipe and Nichols & Associates from bidding on construction projects with the City of Atlanta. To Plaintiffs' information and belief, a number of other businesses owned by white and male persons have been discouraged from bidding on construction projects by the EBO Program and the

discrimination it causes. This inflates the minority business availability percentages reported by the City.

All Plaintiffs have suffered actual damages from being unable to compete for construction contracts on an equal basis with businesses owned by African-Americans. Plaintiffs Nichols Construction, LGC, and Continental have suffered actual damages from being unable to compete for construction contracts on an equal basis with businesses owned by women.

Defendants' discrimination against white business owners and the businesses owned by white persons in all aspects of bidding and awarding construction contracts constitutes a clear violation of 42 U.S.C. §1981, as enforced directly or through 42 U.S.C. § 1983..

Said discrimination was accomplished with reckless disregard of the Plaintiffs' federally protected rights.

Defendants' refusal to award bids to Plaintiffs, imposition of different and more onerous bidding conditions for businesses owned by white and male persons, and pattern or practice of favoring one race and one gender over other races and genders 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.

Said violations were accomplished with reckless disregard of the Plaintiffs' federally protected rights.

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 Atlanta EBO Program violates 42 U.S.C. § 1981 and the Equal Protection Clause of the 14^th Amendment and that the Defendants have engaged in a pattern or practice of discriminating against businesses owned by white or male persons in awarding city construction contracts;

c. Temporarily, preliminarily and permanently enjoin Defendants 1) from future implementation of the EBO Program, 2) from discriminating against businesses owned by white persons 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 Plaintiffs pre-judgment interest;

f. Award Plaintiffs actual damages, in an amount to be determined in the enlightened conscience of the jury, to compensate Plaintiffs for all monetary loss they have suffered as a result of Defendants' discriminatory conduct;

g. Award Plaintiffs compensatory damages, in an amount to be determined in the enlightened conscience of the jury, to compensate Plaintiffs for intangible losses they have 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 Plaintiffs punitive damages against the individual Defendants;

i. Award Plaintiffs 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 24th day of August, 1999.

_______________________________

A. Lee Parks

State Bar No. 563750

PARKS, CHESIN & MILLER, P.C.

2600 The Grand

75 Fourteenth Street

Atlanta, Georgia 30309

(404) 873-8000

_______________________________

R. Mason Barge

State Bar No. 037338

Of Counsel

PARKS, CHESIN & MILLER, P.C.

2600 The Grand

75 Fourteenth Street

Atlanta, Georgia 30309

(404) 873-8000

_______________________________

Valle S. Dutcher

State Bar No. 235960

SOUTHEASTERN LEGAL FOUNDATION, INC.

3340 Peachtree Rd., NE

Suite 2515

Atlanta, GA 30326

(404) 365-8500

Attorneys for Plaintiffs