Four white employees who alleged in a 2010 suit that top Kennesaw officials "selected" them "for discipline because of their race" have lost the latest round in their nearly 3-year-old legal battle against the city.
The 11th U.S. Circuit Court of Appeals today found that police officers Scott Lewis and Scott Luther and public safety employees Linda Johnson and Susan Power "failed to establish a prima facie case of racial discrimination" against the city of Kennesaw, Mayor Mark Mathews, City Manager Steve Kennedy and former human resources director Richard Klein, according to a copy of the ruling on the court's website.
Lewis, Luther, Johnson and Power were among 23 employees—20 white, two black and one Hispanic—who received suspension notices in May 2009 after an audit of city email accounts found racially and/or sexually offensive emails that violated the city's Internet and Electronic Mail Acceptable Use Policy.
While the city issued a 10-day suspension without pay to Lewis, a 3-day suspension to Luther and 5-day suspensions to Johnson and Power, "similarly-situated minority employees who had many of the same emails in their archives were not disciplined," the four alleged in their Feb. 10, 2010, suit, which was filed in U.S. District Court for the Northern District of Georgia.
The email audit followed an August 2008 complaint to the Equal Employment Opportunity Commission from Willie Smith and Stanley Mitchell, who alleged that they and other African-American public works employees had been subjected to racial slurs and harassment in the workplace for more than a decade.
Smith, Mitchell and a third employee filed suit against the city in March 2009. They alleged that city officials ignored their complaints about racially offensive emails that were "routinely circulated by and among city employees," according to court records.
Some of the offensive emails, documents show, included depictions of a "ghetto wedding" and a link to an interactive online video game called "Border Patrol," involving the shooting and killing of "w-------."
While Smith, Mitchell and the third man ultimately settled with the city, the Feb. 10, 2010, suit brought by the four white employees has lingered. After the lower court dismissed the case in early 2012, Lewis, Luther, Johnson and Power appealed to the 11th U.S. Circuit Court of Appeals.
They said the Smith suit "triggered a deliberate 'witch hunt' by city officials in which they sought email usage violations in order to show that they, contrary to longstanding practice, would not tolerate offensive emails," according to court records.
The 11th U.S. Circuit Court of Appeals today found "no compelling link between the race discrimination lawsuit filed against the City in 2009 and the discipline Plaintiffs received," according to the ruling.
Not only did Lewis, Luther, Johnson and Power fail to provide sufficient evidence of discrimination, the court said that they didn't prove that minority employees who also had racially offensive emails in their archives were treated differently.
One of the two African-American employees who violated the city's email policy served a 3-day suspension without pay, according to court records. The other African-American employee and the Hispanic employee were on leaves of absence when the violations were discovered and did not return to work, documents show.
David A. Cox, the attorney for Lewis, Luther, Johnson and Power, could not be reached for comment this afternoon.
Click on the four PDFs under the photo of the gavel to read:
- The original complaint from Lewis, Luther, Johnson and Power on Feb. 10, 2010.
- The original recommendation from the U.S. District Court for the Northern District of Georgia on Jan. 31, 2012.
- The original judgment to dismiss from the U.S. District Court for the Northern District of Georgia on March 30, 2012;
- Today's ruling from the 11th U.S. Circuit Court of Appeals.