united states district court southern district...

{00369764.5 }

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

AUGUSTA DIVISION

JOHNNY MCDONALD, )

) Plaintiff, ) CIVIL ACTION

) FILE NO.

v. ) ) JURY TRIAL DEMANDED

AUGUSTA, GEORGIA; )

RICHMOND COUNTY CORONER; )

and MARK BOWEN, )

in his official capacity as )

Richmond County Coroner, )

)

Defendants. )

COMPLAINT

1. Plaintiff Johnny McDonald (“Mr. McDonald” or “Plaintiff”)

respectfully submits the following Complaint against Defendants Augusta,

Georgia, the consolidated government of Richmond County and the City of

Augusta (“Augusta”), Richmond County Coroner (“the Coroner’s Office”), and

Mark Bowen, in his official capacity as Richmond County Coroner (“Bowen”)

(collectively “Defendants”), alleging violations of the Fair Labor Standards Act,

29 U.S.C. § 201 et seq., (“FLSA”), and the Georgia Whistleblower Act, O.C.G.A.

§ 45-l-4, (the “Whistleblower Act”).

Case 1:14-cv-00185-JRH-BKE Document 1 Filed 09/24/14 of 26

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INTRODUCTION

2. Mr. McDonald was employed by Defendants from February 2008

until May 1, 2014, when he was constructively terminated from his employment

because of repeated harassment and threats by his supervisors, co-workers, and

other Augusta staff members in retaliation for reporting Coroner Grover Tuten’s

unlawful conduct to the Federal Bureau of Investigations (“FBI”) and for his

continued refusal to participate in ongoing corruption within the Coroner’s Office.

3. Throughout Mr. McDonald’s employment with the Coroner’s Office,

Defendants willfully and systematically violated the FLSA by failing to pay

Mr. McDonald time and one-half of his regular hourly rate for all hours worked

over the maximum allowed under 29 U.S.C. §207, including hours worked while

on call.

4. Defendants also failed to pay Mr. McDonald holiday pay that was due

and owing under a written agreement between the parties.

JURISDICTION AND VENUE

5. Mr. McDonald’s FLSA claims present federal questions over which

the Court has jurisdiction pursuant to 28 U.S.C. § 1331. This Court has further

jurisdiction over Mr. McDonald’s state law claims pursuant to 28 U.S.C. § 1367.


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6. This Court is an appropriate venue for all of Mr. McDonald’s claims

under 28 U.S.C. § 1391(b)(2) because all of the unlawful actions and practices

alleged herein were committed in Richmond County and within the Southern

District of Georgia.

THE PARTIES

7. Mr. McDonald is a citizen of the State of South Carolina and a

resident of Aiken County, South Carolina. He submits himself to the jurisdiction

of this Court.

8. Augusta, Georgia is a consolidated governmental entity consisting of

the City of Augusta, a municipality, and Richmond County, a political subdivision

of the state of Georgia. Augusta is subject to the jurisdiction of this Court. Augusta

may be personally served with process by delivering a copy of the Complaint and

summons to the Mayor and Chief Executive Officer, Deke Copenhaver, at his

business address located at 530 Greene St., Augusta, Georgia 30901.

9. The Coroner’s Office is an office created by the Constitution of the

State of Georgia and is subject to the jurisdiction of this Court. The Coroner’s

Office may be may be served with process by delivering a copy of the Complaint

and summons to Coroner Mark Bowen, at the Coroner’s Office, located at 912 8th

St., Augusta, Georgia 30901.


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10. Mark Bowen may be personally served with process by delivering a

copy of the Complaint and summons to him at the Coroner’s Office, located at 912

8th St., Augusta, Georgia 30901.

THE FACTS

11. Mr. McDonald began working for Defendants on or around

February 1, 2008 as a Deputy Coroner.

12. At all relevant times during his employment at the Coroner’s Office,

Mr. McDonald fulfilled the duties of a Deputy Coroner.

13. At all relevant times, employees of the Coroner’s Office were

employees of Augusta and participated in the Augusta merit system.

14. In February 2010, Mr. McDonald was forced by then-Coroner Tuten

to sign an agreement. In that Agreement, Mr. McDonald conceded that he would

be treated as an exempt employee and he would not be entitled to receive overtime

compensation except on holidays, effective January 1, 2010 (“2010 Agreement”).

15. Mr. McDonald was threatened by both Tuten and then-Chief Deputy

Coroner Bowen that he would be fired if he failed to sign the 2010 Agreement,

regardless of whether or not his job duties met the statutory guidelines for

exemption under the FLSA.


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16. As incentive to force Mr. McDonald into signing the 2010 Agreement,

Defendants offered to pay him a lump sum payment for previous unpaid vacation

days, permitted him to cash out ten (10) vacation days in 2010 only, and promised

him that he would be eligible for holiday leave on approved holidays designated by

Augusta. In the event Mr. McDonald worked on a holiday, Defendants agreed to

pay him time and a half for time worked on holidays.

17. Defendants repeatedly failed to pay Mr. McDonald for time worked

on holidays from 2010 through May 2014 as promised in the 2010 Agreement.

18. Per the 2010 Agreement, Defendants also assigned Mr. McDonald the

title of Assistant Director, purportedly to satisfy the statutory guidelines for

exemption. However, despite the change in his title, Mr. McDonald’s

responsibilities remained the same as they were prior to his purported promotion.

19. After the execution of the 2010 Agreement, Mr. McDonald did not

have (nor did he engage in) any responsibilities that satisfy any exemption to

FLSA’s overtime pay mandate. Mr. McDonald had no supervisor responsibility,

gave no input into the policies or management of the Coroner’s Office, and did not

have the authority to hire and fire. Mr. McDonald did not exercise discretion and

independent judgment with respect to matters of significance.


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20. At all times relevant, Mr. McDonald’s regular schedule consisted of

seven 24-hour shifts per every two week period, resulting in approximately 168

hours worked every two weeks.

21. During each shift, Mr. McDonald was required to respond

immediately to death investigations at any time during the 24-hour shift.

Mr. McDonald was required to be in the office starting at 8:00 AM, if he was not

actively investigating a death. If Mr. McDonald started an investigation near the

end of his 24-hour shift, he was required to stay on duty past the end of his shift to

complete the investigation.

22. Mr. McDonald regularly received calls at all hours of the day and

night on his days off with respect to his ongoing death investigations, including

calls from the Georgia Bureau of Investigations, families of the deceased, hospitals

and medical facilities, nursing homes, and members of the news media.

23. Mr. McDonald was unable to freely engage in personal activities for

the entire period of each 24-hour shift, and he often worked beyond the end of his

shift and on his days off to fulfill his job responsibilities.

24. At all times relevant, Defendants failed to maintain accurate time

records of all hours worked by Deputy Coroners.


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25. Mr. McDonald repeatedly complained to Tuten that he was not

performing any work duties that were consistent with the title he was given under

the 2010 agreement. In addition, Mr. McDonald complained to Tuten that he was

not being paid his overtime pay. Tuten responded by chastising Mr. McDonald and

told him to stop complaining about not being paid.

26. Mr. McDonald repeatedly complained about the Defendants’ failure

to pay overtime. Specifically, in 2012 and 2013, Mr. McDonald reported

Defendants’ failure to follow the law in refusing to pay him overtime

compensation to Becky Godbee, the Augusta Human Resources representative, and

to Jacqueline Humphrey, the Augusta Equal Employment Opportunity Director

(“Humphrey”).

27. In July 2013, Mr. McDonald provided information to the FBI

regarding illegal conduct by then-Coroner Tuten. At the FBI’s request,

Mr. McDonald sought the cooperation of then-Chief Deputy Bowen in the

investigation, but Bowen became angry with Mr. McDonald for exposing Bowen

to possible criminal charges for his complicity in Tuten’s illegal conduct. Bowen

refused to coorperate, notwithstanding the fact that Tuten was violating the law.


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28. After reporting Tuten, Kenny Boose (“Boose”), a fellow Deputy

Coroner, told Mr. McDonald that he also knew that Mr. McDonald had reported

Tuten to the FBI.

29. On December 19, 2013, Tuten was arrested on charges of theft and

violation of his oath of office.

30. Following Tuten’s arrest, Bowen assumed the role of Acting Coroner

and Boose assumed the role of Acting Chief Deputy Coroner. As Acting Coroner,

Bowen was finally vested with the complete authority over the operations of the

Coroner’s Office and over Mr. McDonald.

31. On or around December 19, 2013, Boose overheard Mr. McDonald

speaking on the phone with Humphrey, the Augusta EEO Director. Boose warned

Mr. McDonald not to make any more complaints about the Coroner’s Office

because it would hurt Bowen’s chances of permanently becoming Coroner and

Boose’s chances of being permanently promoted to Chief Deputy Coroner.

Mr. McDonald told Boose that he was concerned about Bowen’s failure to report

and possible involvement in Tuten’s illegal activities. Boose responded that he

already knew that Bowen had received property from Tuten that was stolen from a

decedent’s estate, but apparently, Boose did not care as he wanted to advance his

own career.


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32. The next day, Mr. McDonald again attempted to report this

threatening conduct and corruption by his superiors at the Coroner’s Office to the

Augusta Sheriff’s Department, but the Sheriff’s Department refused to act on his

report.

33. On December 23, 2013, Mr. McDonald went to the Augusta

Employee Wellness Center because he began to experience extremely high blood

pressure as a result of the ongoing stressful and hostile work environment. The

Wellness Center Director placed Mr. McDonald on medical leave, and he remained

out until February 1, 2014.

34. On or around January 3, 2014, Mr. McDonald received a phone call

from Cindy Holland (“Holland”), Augusta’s Employee Relations Director,

regarding his medical leave. Mr. McDonald again complained about his unpaid

overtime and the hostility he was experiencing in the workplace as a result of

Tuten’s arrest. Holland promised to review Mr. McDonald’s payroll records and

to investigate his reports of harassment and retaliation. When Mr. McDonald

followed up with Holland the next week, she stated that she had been instructed to

stop her investigation and refused to state the reason why she could not investigate

his complaints.


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35. Mr. McDonald filed open records requests on January 14, 2014 and

again on January 24, 2014, requesting copies of documents and communications

related to his hours worked and work schedules, to the 2010 Agreement, and to his

complaints of harassment and hostile work environment.

36. On February 1, 2014, Mr. McDonald returned to work after being

cleared for duty by his physician. After his return, Boose and Bowen ignored and

isolated Mr. McDonald.

37. On February 5, 2014, Mr. McDonald met with Tanika Bryant

(“Bryant”), the Augusta Human Resources Director. She assured Mr. McDonald

that she would review his time sheets and work calendar to determine how much

overtime he was owed. She agreed to set up a subsequent meeting to discuss

settlement of any overtime pay owed to Mr. McDonald, but she never did so.

38. On February 10, 2014, Mr. McDonald attended a staff meeting at the

Coroner’s Office where Acting Coroner Bowen announced new time and

attendance policies. Effective February 15, 2014, the Coroner’s Office would begin

tracking hours worked and would pay overtime to non-exempt employees,

including Mr. McDonald. Bowen told Mr. McDonald that his title was being

changed back to Deputy Coroner from Assistant Director. Mr. McDonald again

demanded payment for his overtime worked prior to February 15, 2014.


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39. Mr. McDonald phoned Jodie Smitherman (“Smitherman”), an

Augusta Staff Attorney, about his conversation with Bowen. She stated that Bowen

had written the new overtime policy and that the decision to change Mr.

McDonald’s title came from Bowen.

40. On February 17 and 18, 2014, Mr. McDonald left messages for both

Bryant and Smitherman asking for a meeting to discuss his complaints about his

unpaid overtime and harassment and hostile work environment. Smitherman and

Bryant eventually agreed to meet with Mr. McDonald and his wife on February 25,

2014, but that meeting never happened.

41. On February 19 and 20, 2014, Mr. McDonald sent a series of emails

to Bowen, Bryant, Smitherman, and other Augusta officials demanding payment of

his past, unpaid overtime and stating his intent to notify the United States

Department of Labor, Wage and Hour Division, of Augusta’s non-compliance with

overtime laws. In his email to Smitherman, Mr. McDonald also stated that he

intended to notify the Georgia State Attorney General of Augusta’s failure to

comply with his Open Records Request.

42. On February 20, 2014, Bryant and Smitherman called Mr. McDonald

again. Smitherman asked Mr. McDonald why he was emailing complaints about

hostile work environment and harassment to Augusta officials. When Mr.


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McDonald questioned why Smitherman had not responded to his Open Records

Request, she terminated the call.

43. On February 20, 2014, Smitherman sent a response to Mr.

McDonald’s records request and attached an invoice for $1,438.80 in estimated

costs that Mr. McDonald was required to pay in advance in order to receive the

requested documents. On February 21, 2014, Mr. McDonald’s wife, Deborah F.

McDonald (“Mrs. McDonald”), delivered a check for the amount of $1,438.80 to

the Augusta Law Department for the Open Records Request.

44. On February 21, 2014, Mr. McDonald sent an email addressed to

Bowen, Bryant, Smitherman, and other Augusta officials. Mr. McDonald identified

himself as the individual who informed the FBI of former Coroner Tuten’s

corruption and asked for protection as a whistleblower. He requested further

investigation into past and present corruption at the Coroner’s Office, demanded

payment of his unpaid overtime, reported that he had experienced serious health

effects due to hostile treatment by other Augusta employees, and asked to be

transferred out of the Coroner’s office.

45. On February 21, 2014, Mr. McDonald returned to the Augusta

Employee Wellness Center when it opened because he was concerned about his

blood pressure level. He received a medical excuse from work that day due to his


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high blood pressure. The Wellness Center Director told Mr. McDonald that the

Augusta Human Resources Department called and questioned her decision to place

Mr. McDonald on medical leave in December 2013.

46. Later that day, on February 21, 2014, in retaliation for

Mr. McDonald’s email, Bowen placed Mr. McDonald on administrative leave until

February 26, 2014, after which time Mr. McDonald already had scheduled an

approved medical leave for knee surgery.

47. On February 22, 2014, Mr. McDonald received a phone call from a

retired member of the Augusta Sheriff’s Department who warned him that Bowen

would be “getting rid of” Mr. McDonald.

48. On February 24, 2014, Mr. McDonald went to the Augusta Municipal

Building to pick up paperwork for his medical leave and to meet with Humphrey,

the Augusta EEO Director. Mr. McDonald was stopped by security and told that he

was not permitted to enter the building without an escort. The security supervisor

refused to explain why Mr. McDonald was being barred from the public building.

While standing in the lobby, Mr. McDonald began experiencing high blood

pressure and chest pain. He called 911 for emergency medical assistance and was

transported to the hospital.


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49. On February 26, 2014, Mr. McDonald received a letter from Holland

stating that his “erratic, paranoid, and irate behavior” had raised a question about

his ability to perform his essential job functions, specifically, the requirement that

he carry a concealed weapon. Mr. McDonald was ordered to turn over his badge

and Coroner’s ID and to submit to a fitness for duty examination.

50. On February 27, 2014, Mrs. McDonald turned over Mr. McDonald’s

credentials to Augusta Marshal Steve Smith. She asked why her husband was

being required to turn in his credentials. Smith stated that Smitherman had

recorded her phone call with Mr. McDonald on February 20, 2014, and she had

alleged that Mr. McDonald threatened her with a gun during that call. Mrs.

McDonald asked to hear the recording of the phone call, and Smith said he could

make that happen. Later, Smith told Mr. McDonald that Smitherman recanted her

allegation that Mr. McDonald threatened her, and he refused to share the recording

of the conversation.

51. On February 27, 2014, Mrs. McDonald called the Augusta Law

Department about Mr. McDonald’s open record request. She was told she would

receive a call back to inform her when the request would be ready, but no one from

the Law Department ever called her back.


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52. On February 28, 2014, Tuten formally resigned the office of Coroner,

and on March 1, 2014, Probate Court Judge Harry B. James, III, appointed Bowen

as Coroner for the remainder of Tuten’s term. Prior to Bowen’s appointment,

Mr. McDonald had spoken to Judge James and informed him that Bowen had

known about Tuten’s corruption and done nothing about it.

53. In March 2014, shortly after Mr. McDonald went on medical leave,

Bowen hired a new Deputy Coroner to replace Mr. McDonald, even though

Mr. McDonald had not been fired, resigned, or retired from his position with the

Coroner’s Office.

54. On May 1, 2014, Mr. McDonald was constructively terminated from

his employment with Defendants as a result of the corrupt, hostile, and illegal

conduct of officials from Augusta and the Coroner’s Office. After his surgery,

Mr. McDonald saw the writing on the wall and knew that if he returned to work,

Bowen would find a pretextual reason to fire him and render him ineligible for

retirement benefits. Mr. McDonald had no choice but to retire rather than return to

a corrupt and hostile work environment.

55. The acts of placing Mr. McDonald on administrative leave, restricting

his access to public facilities, and constructively terminating Mr. McDonald’s


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employment constitute retaliation for his repeated reports of corruption and

violations of law by Augusta and Coroner’s Office officials.

56. Defendants’ wrongful retaliation and constructive termination of

Mr. McDonald caused him great injury, including lost wages, the loss of

accumulated fringe benefits of employment, loss of retirement income, diminished

future earning capacity, tarnishment of his reputation, emotional distress,

humiliation, and embarrassment.

57. To date, Defendants have failed to respond to Mr. McDonald’s open

records request, despite receiving a check for $1,438.80 on February 21, 2014 as

advance payment for the estimated costs of responding to the request.

COUNT I

FAILURE TO PAY OVERTIME

IN VIOLATION OF FLSA, 29 U.S.C. §§ 207, 215(a)(2)

58. Mr. McDonald incorporates by reference all of the foregoing

paragraphs of this Complaint, as if fully set forth herein.

59. Defendants are governed by and subject to 29 U.S.C. §§ 206 and 207.

60. At all times relevant, Defendants satisfied the standard for an

“employer” under the FLSA as that term is defined by 29 U.S.C. § 203(d).

61. As all times relevant, Mr. McDonald was an “employee” of

Defendants as that term is defined by 29 U.S.C. §203(e).


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62. At all times relevant, Defendants violated the FLSA by failing to pay

Mr. McDonald time and one-half his regular hourly rate of pay for all hours

worked over the maximum allowed under 29 U.S.C. §207.

63. At all times relevant, Defendants suffered and permitted Mr.

McDonald to consistently work over the maximum allowed under 29 U.S.C. §207

without paying Mr. McDonald the overtime wage differential.

64. Defendants repeatedly violated the provisions of 29 U.S.C. §§211(c)

and 215(a)(5) and Department of Labor regulations at 29 C.F.R. §516 by failing to

make, keep, and preserve adequate and accurate records of the persons employed

and of the wages, hours, and other conditions and practices of employment

maintained by them.

65. Mr. McDonald is entitled to shift the burden of proof to Defendants

with regard to the amount of overtime worked due to the Defendants’ violation of

29 U.S.C. §§211(c) and 215(a)(5) and Department of Labor regulations at 29

C.F.R. §516.

66. Defendants’ conduct was willful and in bad faith to avoid paying

overtime compensation.

67. At all times relevant, Defendants purposefully misclassified Mr.

McDonald as exempt in order to avoid paying Mr. McDonald the overtime wage


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differential required by the FLSA. Defendants also forced Mr. McDonald to sign

the 2010 Agreement with no intention of actually promoting him to the position

with supervisory job duties that would satisfy the exemption from overtime

compensation.

68. At all times relevant, Mr. McDonald spent the entirety of his work

time performing non-exempt work.

69. Mr. McDonald was not paid for all hours worked during his time in

the office and while on call.

70. Whenever Mr. McDonald complained about this to Defendants,

Defendants would disregard his complaints.

71. As a result of Defendants willful disregard of their obligations under

the FLSA, Mr. McDonald is entitled to three (3) years unpaid wages, liquidated

damages, prejudgment interest on unpaid wages, and reasonable attorneys’ fees

and costs, pursuant to 29 U.S.C. § 216(b).

COUNT II

RETALIATION IN VIOLATION OF FLSA, 29 U.S.C. § 215(a)(3)




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73. From 2012 until his constructive termination on May 1, 2014, Mr.

McDonald repeatedly notified his supervisors and Augusta officials that that he

was entitled to overtime pay.

74. In February 2014, after the Coroner’s Office announced its new

overtime policy, Mr. McDonald sent a series of emails again notifying his

supervisors and Augusta officials that he was entitled to back pay for unpaid

overtime and stated his intent to notify the United States Department of Labor,

Wage and Hour Division, of Defendants’ non-compliance with overtime laws.

75. Mr. McDonald filed numerous complaints regarding Defendants’

overtime pay practices prior to his constructive termination. As such,

Mr. McDonald engaged in statutorily protected activity under 29 U.S.C.

§ 215(a)(3).

76. In retaliation for Mr. McDonald’s complaints regarding Defendants’

overtime pay practices, Defendants harassed Mr. McDonald, placed Mr. McDonald

on administrative leave, wrongfully restricted Mr. McDonald’s access to public

facilities, and engaged in other retaliatory conduct.

77. Defendants’ conduct resulted in working conditions that were so

intolerable that a reasonable person would have been compelled to resign or retire


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and, as such, constituted a constructive termination of his employment with

Defendants and an adverse action under 29 U.S.C. § 215(a)(3).

78. Defendants’ adverse action caused great damage to Mr. McDonald.

79. Because reinstatement to his position as Deputy Coroner is not

practicable, Mr. McDonald is entitled to front pay in lieu of reinstatement.

80. Mr. McDonald is entitled to recover damages for lost wages, the loss

of accumulated fringe benefits of employment, loss of retirement income,

tarnishment of his reputation, great uncertainty regarding his future, emotional

distress, humiliation, and embarrassment, pursuant to 29 U.S.C. § 216(b).

81. Mr. McDonald is entitled to recovery of his attorneys’ fees and all

other costs of litigation, pursuant to 29 U.S.C. § 216(b)

COUNT III

RETALIATION UNDER THE

GEORGIA WHISTLEBLOWER ACT, O.C.G.A § 45-1-4, et seq.



83. From July 2013 up and until his constructive termination on May 1,

2014, Mr. McDonald engaged in protected activity under the Whistleblower Act,

O.C.G.A. § 45-1-4(d)(3), by objecting to and refusing to participate in conduct by


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Defendants that he reasonably believed was in violation of or noncompliance with

a law, rule, or regulation.

84. Specifically, Mr. McDonald informed then-Chief Deputy Coroner

Bowen immediately after he had reported Tuten to the FBI, in hopes that Bowen

would also cooperate. Instead, Bowen began to retaliate against Mr. McDonald as

soon as he became Acting Coroner and had full authority over Mr. McDonald.

85. Mr. McDonald again engaged protected activity on February 21,

2014, when he made an email to disclosure to Bowen and officials in the Augusta

Human Resources and Law Departments identifying himself as the individual who

provided information to the FBI about Tuten’s corruption and demanding further

investigation into ongoing corruption at the Coroner’s Office.

86. In retaliation for Mr. McDonald’s protected acts of objecting to and

refusing to participate in conduct that he reasonably believed was a violation of a

law, rule, or regulation, Defendants harassed Mr. McDonald, placed Mr.

McDonald on administrative leave, wrongfully restricted Mr. McDonald’s access

to public facilities, and engaged in other retaliatory conduct.

87. Defendants’ retaliatory conduct resulted in working conditions that

were so intolerable that a reasonable person would have been compelled to resign


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or retire and, as such, constituted a constructive termination of his employment

with Defendants and an adverse action under O.C.G.A. § 45-1-4.

88. Defendants’ adverse action caused great damage to Mr. McDonald.

89. The Defendants are liable for all economic and non-economic

damages resulting from this retaliation, pursuant to O.C.G.A. § 45-1-4(e)(2)(D)

and (E).

90. Because reinstatement to his position as Deputy Coroner is not

practicable, Mr. McDonald is entitled to front pay in lieu of reinstatement.

91. Mr. McDonald is entitled to recover damages for lost wages, the loss

of accumulated fringe benefits of employment, loss of retirement income,

diminished future earning capacity, tarnishment of his reputation, great uncertainty

regarding his future, emotional distress, humiliation, and embarrassment, pursuant

to O.C.G.A. § 45-1-4(e)(2)(D) and (E).

92. Mr. McDonald is entitled to recovery of his attorneys’ fees and all

other costs of litigation, pursuant to O.C.G.A. § 45-1-4(f).

COUNT IV

BREACH OF CONTRACT




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94. Pursuant to 2010 Agreement, Mr. McDonald was eligible for holiday

leave on holidays approved by Augusta, and in addition to his holiday pay,

Defendants agreed to pay him overtime for any time worked on a holiday.

95. Mr. McDonald has complied fully with all of his obligations under the

2010 Agreement, and all conditions precedent to Defendants’ obligation to pay

have been met.

96. Despite repeated demands by Mr. McDonald, Defendants have

breached their obligations under the 2010 Agreement by failing to make payments

due and owing to Mr. McDonald.

97. Defendants’ breach was without legal justification or excuse.

98. As a direct and proximate result of said breach, Mr. McDonald has

suffered damages in an amount to be proven at trial.

99. Defendants’ repeated failure to pay Mr. McDonald after his repeated

demands constitutes bad faith under O.C.G.A. § 13-6-11.

COUNT V

ATTORNEYS FEES PURSUANT TO O.C.G.A. § 13-6-11




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101. Through their conduct, Defendants have acted in bad faith, have been

stubbornly litigious, and have caused Mr. McDonald unnecessary trouble and

expense.

102. As a direct and proximate result of Defendants’ conduct,

Mr. McDonald is entitled to recover from Defendant his expense of litigation,

including reasonably attorneys’ fees and costs, pursuant to O.C.G.A. § 13-6-11.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff demands a TRIAL BY JURY and requests the

following relief:

(a) That Plaintiff be granted judgment against Defendants, as requested,

under Counts I - V;

(b) That Plaintiff be granted judgment for unpaid overtime wages,

liquidated damages, and prejudgment interest on unpaid wages;

(c) That Plaintiff be granted compensation including three years of front

pay, any fringe benefits, and any loss of retirement income;

(d) That Plaintiff has and recovers from Defendants back pay and

benefits, with prejudgment interest thereon;

(e) That Plaintiff has and recovers compensatory damages in an amount

to be determined by a jury;


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(f) That Plaintiff has and recovers his costs in this action and a

reasonable attorneys’ fee as provided by law; and

(g) Any and other such further relief that this Court or the Finder of Fact

deems equitable and just.

DEMAND FOR JURY TRIAL

Plaintiff demands a jury trial on all issues triable by jury.

Respectfully submitted this 23rd day of September, 2014.

THRASHER LISS & SMITH, LLC

/s/ Ray S. Smith

RAY S. SMITH III

Georgia Bar No. 662555

[email protected]

Attorney for Plaintiff

Five Concourse Parkway

Suite 2600

Atlanta, Georgia 30328

Telephone 404-760-6000

Facsimile 404-760-0225


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CERTIFICATE OF COMPLIANCE

The undersigned counsel certifies that the foregoing has been prepared in

Times New Roman (14 point) font, as required by the Court in Local Rule 5.l (B).

Respectfully submitted this 23rd day of September, 2014.

THRASHER LISS & SMITH, LLC

/s/ Ray S. Smith

RAY S. SMITH III

Georgia Bar No. 662555

[email protected]

Attorney for Plaintiff

Five Concourse Parkway

Suite 2600

Atlanta, Georgia 30328

Telephone 404-760-6000

Facsimile 404-760-0225


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