The law suit
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
Robert L. Cutts,
Jabar Shabazz,
Gwendolyn B. Bell,
Plaintiffs,
vs.
Civil Action No. 99-689-A
Carl R. Peed,
Sheriff of Fairfax County Virginia,
in his individual and official capacity,
and
The Sheriffs Department for the County of Fairfax, Virginia
and
James A. Vickery
Chief Deputy Sheriff,
The Sheriffs Department for the County of Fairfax, Virginia,
in his individual and official capacity,
and
Larry Gerber
Captain of Confinement
The Sheriffs Department for the County of Fairfax, Virginia,
in his individual and official capacity,
Defendants.
COMPLAINT
I. Preliminary Statement
This is a civil action wherein the plaintiffs, Robert L. Cutts, Jabar Shabazz, and
Gwendolyn B. Bell (the "plaintiffs"), alleges that their employer, Carl R. Peed,
the Sheriff of Fairfax County Virginia, engaged in discrimination based on race in
violation of 42 U.S.C. §1981 which ensures that all persons "shall have the same
right . . . to make and enforce contracts," which is defined by 42 U.S.C. § 1981, to
be "the making, performance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of the contractual
relationship." (Count 1) Plaintiffs further allege that the defendants violated Title
VII of the Civil Rights Act of 1964, as amended 42 U.S.C. §§ 2000e et seq. which
provides relief against discrimination in employment on the basis of race and religion,
(Count 2), and that defendants retaliated against plaintiffs in violation of 42 U.S.C.
1981 and 42 U.S.C. § 2000e-2(a) and other laws, (Count 3). Finally, pursuant to 42 U.S.C.
§ 1983, plaintiffs contend that defendants violated plaintiffs First Amendment rights of
free speech, (Count 4), right to petition the government, (Count 5), and right to
associated freely, (Count 6).
II. Jurisdiction and Venue
1. Plaintiffs invoke the jurisdiction of this Court pursuant to 29 U.S.C. § 621 et
seq, and 28 U.S.C. § § 1331 and 1337, and 42 U.S.C. § 2000-e et seq.. The matter in
controversy arises under an act of Congress regulating commerce and relating to race
discrimination. Supplemental jurisdiction over the state law claims is conferred by 28
U.S.C. § 1067.
2. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 in that the Defendant
was doing business in this district, and the activities giving rise to the
plaintiffs claim took place in this district.
3. Plaintiffs timely filed charges of discrimination and retaliation in violation of
Title VII, with the EEOC and files this suit within 90 days of the receipt of the right to
sue letters received by each.
III. Parties
4. The Plaintiff, Robert L. Cutts, (hereinafter "Cutts") is an
African-American citizen of the United States.
5. The Plaintiff, Jabar Shabazz, (hereinafter "Shabazz") is an
African-American citizen of the United States and is a Muslim and a member of the
religious association, the "Nation of Islam."
6. The Plaintiff, Gwendolyn B. Bell , (hereinafter "Bell") is an
African-American citizen of the United States.
7. Defendant Carl R. Peed, (hereinafter the "Sheriff" or "Peed") is
a Caucasian and a government official, the elected Sheriff for the County of Fairfax,
within the Commonwealth of Virginia. At all times relevant to this action, Peed was the
Sheriff for the County of Fairfax, Virginia and acted within the scope and course of his
employment. Peed is sued in his official and individual capacity.
8. Defendant, James A. Vickery (hereinafter the "Vickery") is a Caucasian and
a government official, the Chief Deputy Sheriff for the Sheriffs Department for the
County of Fairfax, within the Commonwealth of Virginia. At all times relevant to this
action, Vickery acted within the scope and course of his employment. Vickery is sued in
his official and individual capacity.
9. Defendant, Larry Gerber (hereinafter "Gerber") is a Caucasian and a
government official, the Captain of Confinement for the Sheriffs Department for the
County of Fairfax, within the Commonwealth of Virginia. At all times relevant to this
action, Gerber acted within the scope and course of his employment. Gerber is sued in his
official and individual capacity.
IV. - Facts
10. Plaintiff Cutts has been employed by the Sheriff since July 22, 1985 until November
20, 1998 when he was terminated.
11. Plaintiff Shabazz has been employed by the Sheriff since March 7, 1994 until
November 20, 1998 when he was terminated.
12. Plaintiff Bell has been employed by the Sheriff since February 1996 and again
August 8, 1996 until and as of the date of the filing of this suit continues to be so
employed.
13. Plaintiffs have performed their duties successfully as employees of the Sheriff.
14. Plaintiffs have been productive and competent employees fully qualified for the
positions they occupied as well as those of higher ranks to which they were not promoted.
15. When Cutts first began working for the Sheriff in 1985, no disciplinary action was
recommended against an officer with the Fairfax County Police Department who filed a
complaint with the Sheriffs department that Cutts "had a white wife," and
further that complaint remained in Mr. Cutts personnel file with the Fairfax County
Sheriffs Office until 1992.
16. In 1986, Cutts was given a dark photograph with white eyes and teeth drawn in and
told it was a photograph of himself. When Cutts complained, he was transferred to a
predominantly black squad, referred to as the "Anacostia Squad,"a reference to a
predominantly black neighborhood, where he remained until 1991, while the officer who drew
the photograph was promoted.
17. On May 26, 1992, Cutts was suspended without pay when Cutts informed his supervisor
that he was required to leave work due to his daughters illness, while white
officers who simply missed work but fraudulently claimed to be present in violation of the
criminal code of Virginia, collecting pay for that same period were not disciplined. At
the direction of the Sheriff the disciplinary recommendation related to the two white
officers was withdrawn in June of 1997. Further, the Sheriff continued this disparity as
late as November 19, 1998 when he references Cutts suspension in his termination.
18. On April 7, 1995, during role call, a deputy officer falsely and publicly accused
Shabazz of inciting inmates to refer to white officers as "Klansmen," "Ku
Klux Klans" or words of that effect. In response to a complaint and investigation in
which the deputy officer admitted to making the false statements no action was made to
inform those who were present at roll call that the accusations were baseless and the
discipline imposed, if any, was not as harsh as that imposed upon blacks who allegedly
made statements allegedly outrageously false, grossly offensive and highly inflammatory,
allegedly demonstrating a reckless disregard for the truth and exemplifying a behavior
that is malicious, deceitful and manipulative, inciting fellow employees, embarrassing the
agency and the community, adversely impacting the efficient operation of the
Sheriffs Department, diminishing the close working relationship, trust and teamwork
necessary in an environment which could place staff in a dangerous position, undermining
the expectations and diminishing the confidence of the public in the Sheriffs
department.
19. On April 14, 1995, while assigned to post #16, Shabazz received a phone call within
the jail phone system and was threatened "Hey Shabazz, you better watch your back in
the locker room from now own." An inadequate investigation of this matter was
conducted, if any was conducted at all, despite the complaint by Shabazz.
20. On November 3, 1995, while in the presence and hearing of Shabazz, a Caucasian
Corporal with the Sheriffs Department stated to an intoxicated black inmate, "I
dont play with blacks because I hate them." In response to a complaint and
investigation the officer was simply transferred to a different squad and no discipline
was imposed despite the fact that the statement was grossly offensive and highly
inflammatory and exemplified a behavior that is malicious, manipulative, inciting fellow
employees, embarrassing the agency and the community, adversely impacting the efficient
operation of the Sheriffs Department, diminishing the close working relationship,
trust and teamwork necessary in an environment which could place staff in a dangerous
position, undermining the expectations and diminishing the confidence of the public in the
Sheriffs department.
21. On April 30, 1996, Shabazz was denied access to a bathroom which was available and
used by white deputies without restriction. When Shabazz complained of the throwback to
the era of "Jim Crow" laws, Gerber informed Shabazz that the problems he was
experiencing was being perpetrated by a small group and would continue. Gerber further
stated that Shabazz would have problems unless he worked exclusively with "all black
Muslims." No or inadequate discipline was imposed despite the fact that the action
was grossly offensive and highly inflammatory and exemplified a behavior that is
malicious, manipulative, inciting fellow employees, embarrassing the agency and the
community, adversely impacting the efficient operation of the Sheriffs Department,
diminishing the close working relationship, trust and teamwork necessary in an environment
which could place staff in a dangerous position, undermining the expectations and
diminishing the confidence of the public in the Sheriffs department.
22. In May, 1996, a Caucasian Captain with the Fairfax Sheriffs Department
lecturing on Legal Documents, opened a class containing a higher number of black students
than customary, beginning with a discourse informing the black students that they were
misinformed and uneducated with respect to the issue of slave trading, informing them that
Africans participated in the slave trade. No or inadequate discipline was imposed despite
the fact that the statements and action were grossly offensive and highly inflammatory and
exemplified a behavior that is malicious, manipulative, inciting fellow employees,
embarrassing the agency and the community, adversely impacting the efficient operation of
the Sheriffs Department, diminishing the close working relationship, trust and
teamwork necessary in an environment which could place staff in a dangerous position,
undermining the expectations and diminishing the confidence of the public in the
Sheriffs department.
23. On January 1, 1997, Shabazz was warned by a message left on his answering machine
not to mention anything else about a party, after Shabazz had expressed offense based upon
the tenants of his religion, Islam, and concern regarding the many conversations of
officers related to a party and the action of a white officer attempting to sell copies of
a video tape of 17 white Fairfax County Sheriffs Deputies reportedly engaged in lewd
conduct with strippers performing sexual acts. No or inadequate discipline was imposed
despite the fact that the statements and action were grossly offensive and highly
inflammatory and exemplified a behavior that is malicious, manipulative, inciting fellow
employees, embarrassing the agency and the community, adversely impacting the efficient
operation of the Sheriffs Department, diminishing the close working relationship,
trust and teamwork necessary in an environment which could place staff in a dangerous
position, undermining the expectations and diminishing the confidence of the public in the
Sheriffs department.
24. On May 31, 1997, Shabazz was again denied access to the bathroom which was
available to white deputies without restriction, despite the fact that the officer
refusing Shabazz entrance to the bathroom knew that Shabazz had complained about the
"Jim Crow" nature of the prior incident where Shabazz was denied access. No or
inadequate discipline was imposed despite the fact that the statements and action were
grossly offensive and highly inflammatory and exemplified a behavior that is malicious,
manipulative, inciting fellow employees, embarrassing the agency and the community,
adversely impacting the efficient operation of the Sheriffs Department, diminishing
the close working relationship, trust and teamwork necessary in an environment which could
place staff in a dangerous position, undermining the expectations and diminishing the
confidence of the public in the Sheriffs department.
25. On June 16, 1997, further creating a hostile work environment and in retaliation
against Shabazz because he had opposed the Title VII unlawful employment practices of the
Sheriffs Department, Shabazz received a phone call threatening him by stating
"N_gger, you better get out of Fairfax. It aint going to get no better,
N_gger." Although two supervising officers stated that they recognized the voice and
the deputy suspected of making the call refused to cooperate with the investigation and
the polygraph examination, and despite the fact that the investigator stated that he was
sure of the identity of the perpetrator, the suspected deputy sheriff was not disciplined
for making the phone call. No or inadequate discipline was imposed despite the fact that
the statements and actions were grossly offensive and highly inflammatory and exemplified
a behavior that is malicious, manipulative, inciting fellow employees, embarrassing the
agency and the community, adversely impacting the efficient operation of the
Sheriffs Department, diminishing the close working relationship, trust and teamwork
necessary in an environment which could place staff in a dangerous position, undermining
the expectations and diminishing the confidence of the public in the Sheriffs
department.
26. On June 18, 1997, the Sheriffs Department posted a memo looking for "Two
white males" for a special assignment to the Caddo Parish Sheriffs Office in
Shreveport, Louisiana, a locality with a reputation for being hot bed of racism.
Subsequently, on or about July 24, 1997, two white males were sent from Fairfax County on
special assignment to the Caddo Parish Sheriffs Office in Shreveport, Louisiana. No
or inadequate discipline was imposed despite the fact that the statements and actions were
grossly offensive and highly inflammatory and exemplified a behavior that is malicious,
manipulative, inciting fellow employees, embarrassing the agency and the community,
adversely impacting the efficient operation of the Sheriffs Department, diminishing
the close working relationship, trust and teamwork necessary in an environment which could
place staff in a dangerous position, undermining the expectations and diminishing the
confidence of the public in the Sheriffs department.
27. On August 23, 1997, the locker of Shabazz was broken into and two shirts were
stolen. No investigation was undertaken despite the complaint of Shabazz. Further, no
action was taken to repair the locker of Shabazz.
28. On September 6, 1997, Shabazz was singled out of a list of ten people with
relatively low sick leave earned and received a written warning.
29. On September 24, 1997, information was leaked regarding an investigation of a
complaint filed by Shabazz.
30. On October 17, 1997, within approximately 80 minutes after Shabazz walked past a
post where the deputy who denied Shabazz access to the bathroom on May 31, 1997, a call
was placed from that post to the home of Shabazz where Ms. Shabazz received a "heavy
breathing" call, which was meant to annoy, harass and intimidate Shabazz. Although
the Sheriffs department traced the call to the post, no or inadequate discipline was
imposed despite the fact that the statements and actions were grossly offensive and highly
inflammatory and exemplified a behavior that is malicious, manipulative, inciting fellow
employees, embarrassing the agency and the community, adversely impacting the efficient
operation of the Sheriffs Department, diminishing the close working relationship,
trust and teamwork necessary in an environment which could place staff in a dangerous
position, undermining the expectations and diminishing the confidence of the public in the
Sheriffs department.
31. On November 1997, Sheriff Peed rejected the request of Bell to obtain Basic Law
Enforcement training at an academy other than the academy regularly used by Fairfax County
Sheriffs Department because she feared retaliation against her. That request was
rejected, despite the fact that a similar request had been approved for a white male.
32. On or about December 13, 1997, a picture of five Klans hoods and a cross was
placed in Shabazzs locker with a note reading "Stop snitching N_gger."
33. On January 10, 1998, less than a month from December 13, 1997, Klan threat, a
deputy reported that when locker number 148 became available, he found "N_gger"
scrawled inside the locker with "KKK lives," together with a note reading
"Do not use per Capt. Gerber." When Shabazz inquired as to why the department
permitted this, the Sheriff stated that the locker had come to the Sheriffs
department in that condition. When Shabazz inquired as to why the Sheriff permitted the
writing to remain for over one year, the Sheriff stated that the department did not know
about it. Although the Sheriffs department maintains records regarding the use of
the lockers, no or inadequate discipline was imposed despite the fact that the statements
and actions were grossly offensive and highly inflammatory and exemplified a behavior that
is malicious, manipulative, inciting fellow employees, embarrassing the agency and the
community, adversely impacting the efficient operation of the Sheriffs Department,
diminishing the close working relationship, trust and teamwork necessary in an environment
which could place staff in a dangerous position, undermining the expectations and
diminishing the confidence of the public in the Sheriffs department.
34. On December 14, 1997, the day following the Klan drawing in Shabazzs locker,
Cutts locker was broken into. No investigation was undertaken despite the complaint
of Cutts. Further, no action was taken to repair the locker of Cutts.
35. On 1/15/98, a supervising officer informed Cutts who had filed complaints related
to discrimination and hostile work environment, that "Not all SOPs and policies
apply to all employees, just the ones who dance on the line."
36. On January 27, 1998, the Sheriff singled out and informed Shabazz and Cutts, who
had opposed actions and statements they believed to be discriminatory based upon race and
religion, that they were prohibited from further opposing any practice of discrimination,
stating "You are directed--direct order--to cooperate fully in this
investigation," and stating "Youre to refrain from going out in any
further--going to the press or doing any of that, until they have a chance to
investigate."
37. On February 4, 1998, Cutts was denied his request for a special assignment to
discuss the Sheriffs Department on Career Day at a school, a request that had been
permitted in the past and before Cutts became actively engaged in opposing practices of
discrimination in the Sheriffs Department of Fairfax County, and despite the fact
that such requests were routinely granted to deputies who did not complain of
discrimination.
38. On February 26, 1998, Cutts was subjected to hostile and threatening conduct of a
white officer who stated to Cutts, "I hear you are dropping my name all over the
place," referring to and in retaliation for Cutts complaints regarding the policy and
practice of racial discrimination at the Sheriffs Department of Fairfax County. The
Sheriff had informed this officer of the allegations and informed him that the Sheriff
found no merit in the allegations, despite the fact that the Sheriff purported to have
formed an independent commission to investigate the allegations. No or inadequate
discipline was imposed despite the fact that the statements and actions were grossly
offensive and highly inflammatory and exemplified a behavior that is malicious,
manipulative, inciting fellow employees, embarrassing the agency and the community,
adversely impacting the efficient operation of the Sheriffs Department, diminishing
the close working relationship, trust and teamwork necessary in an environment which could
place staff in a dangerous position, undermining the expectations and diminishing the
confidence of the public in the Sheriffs department.
39. The Sheriff appointed a commission comprised of individuals who had been given
favors and promotions by the Sheriff and reminded of the promotions by the Sheriff to do
the Sheriffs bidding, ostensibly to investigate the complaints of racial and
religious discrimination. Price was promoted while he sat on the commission.
40. On March 23, 1998, at role call, an officer referenced Asian suspects as
"monkeys."
41. On July 21, 1998, in retaliation for opposing the unlawful employment practices, an
officer with the Sheriffs Department informed Shabazz that he is no longer permitted
to wear tinted prescription eye glasses, despite the fact that he had been wearing tinted
eye glasses without complaint since March of 1994.
42. In August 1998, an officer used racially divisive language referencing another
white officer as a "white guitar playing cracker." Despite the complaint by
Bell, no or inadequate discipline was imposed despite the fact that the statements and
actions were grossly offensive and highly inflammatory and exemplified a behavior that is
malicious, manipulative, inciting fellow employees, embarrassing the agency and the
community, adversely impacting the efficient operation of the Sheriffs Department,
diminishing the close working relationship, trust and teamwork necessary in an environment
which could place staff in a dangerous position, undermining the expectations and
diminishing the confidence of the public in the Sheriffs department.
43. In September 1998, a Newspaper article with stereo-typical language ascribed to a
black male shown in a photograph along with Marion Barry was removed from the trash can in
the Sheriffs department and placed on the table for others to read. Despite the
complaint by Bell, no or inadequate discipline was imposed despite the fact that the
statements and actions were grossly offensive and highly inflammatory and exemplified a
behavior that is malicious, manipulative, inciting fellow employees, embarrassing the
agency and the community, adversely impacting the efficient operation of the
Sheriffs Department, diminishing the close working relationship, trust and teamwork
necessary in an environment which could place staff in a dangerous position, undermining
the expectations and diminishing the confidence of the public in the Sheriffs
department.
44. In September 1998 and in the same relative time frame as the publicity related to
James Byrd of Jasper Texas who was dragged behind a pick-up truck by members of a group
calling themselves the "Aryan Nation," a white officer stated to other officers
including a black deputy "this is just the Aryan Nation that is in me." Although
Shabazz complained about this statements made by employees of the Sheriffs
Department, no or inadequate discipline was imposed despite the fact that the statements
and actions were grossly offensive and highly inflammatory and exemplified a behavior that
is malicious, manipulative, inciting fellow employees, embarrassing the agency and the
community, adversely impacting the efficient operation of the Sheriffs Department,
diminishing the close working relationship, trust and teamwork necessary in an environment
which could place staff in a dangerous position, undermining the expectations and
diminishing the confidence of the public in the Sheriffs department.
45. On September 18, 1998, Cutts and Shabazz were again directed that they could not
discuss issues related to the unlawful employment practices of discrimination and the
hostile work environment existing at the Sheriffs Department for Fairfax County.
They were further directed that they must answer questions or risk dismissal from the
Sheriffs Office.
46. On September 10, 1998, a supervising officer informed Shabazz that the Nation of
Islam is a hate group.
47. In September, 1998, at the direction of Sheriff Peed, Bell was yelled at and
threatened for making complaints of race discrimination, and directed not to file further
complaints.
48. In September, 1998, Bell was singled out with another black deputy for allegedly
leaving an inmate unsupervised, while the white deputy who was equally responsible for the
inmate was not disciplined. Further the manner in which the complaint against Bell was
made was outside of protocol.
49. On October 14, 1998, a supervisory black officer sitting on Sheriff Peeds
commission referred to Cutts and Shabazz as "N_ggers," stating, "I told
youall N_ggers before...." Additionally, the officer stated to Cutts that his
name was a white name, stating "Hey, you dont get no more cracker than
Robert Lee" referencing Robert E. Lee. Although the Sheriff was informed
of the statement, because of race, no or inadequate discipline was imposed despite the
fact that the statements and actions were grossly offensive and highly inflammatory and
exemplified a behavior that is malicious, manipulative, inciting fellow employees,
embarrassing the agency and the community, adversely impacting the efficient operation of
the Sheriffs Department, diminishing the close working relationship, trust and
teamwork necessary in an environment which could place staff in a dangerous position,
undermining the expectations and diminishing the confidence of the public in the
Sheriffs department.
50. On November 6, 1998, after an incident involving the shooting of an Hispanic male,
Vickery sent a memo to personnel informing them that the department had received a
threatening call from a "male with broken English and sounding illiterate. The voice
gave impression of being a Black male." Vickery sent a second memo without the
reference to a "Black."
51. In and around October, 1998, Cutts, Shabazz, Bell and others sent correspondence to
government officials regarding their complaints of racial discrimination at the Fairfax
Countys Sheriffs Office, and were subsequently disciplined for doing so and
retaliated against.
52. Despite the fact that on December 22, 1997, the Sheriff protested that the behavior
that Shabazz had been subjected to was "outrageous, disgusting and sickening,"
and encouraged Shabazz to "continue to document and bring everything to our
attention," Sheriff Peed terminated Shabazz and Cutts less than one year later
stating "Your continued submission of unsubstantiated allegations and refusal to
accept findings by the special investigative panel..." and stating that Shabazz and
Cutts "baised and unfounded allegations ... impairs your abilities to perform your
duties."
53. Following the letters to government, Bell and others were interrogated regarding
their participation in the petitions.
54. Because of his race and in retaliation for the complaints of race discrimination,
Cutts was terminated.
55. Because of his race and religion and in retaliation for the complaints of race and
religious discrimination, Shabazz was terminated.
56. Because of her race and in retaliation for the complaints of race discrimination,
Bell was threatened with discipline and actually disciplined more severely than whites.
57. On numerous other occasions, employees for the Sheriffs department, have
expressed their hostility towards African-Americans, including but not limited to the
incidents described above.
58. There exists in the Sheriffs Department for the County of Fairfax, Virginia a
systematic and widespread pattern and practice of racial animosity towards
African-Americans.
59. There exists in the Sheriffs Department for the County of Fairfax, Virginia a
policy and/or custom to discriminate against the towns African-American employees.
60. With regard to other black deputies, whose cooperation has not been obtained with
special promotions and special treatment, there existed and still exist similar
difficulties regarding a racially hostile environment.
61. Grievances by these employees have also been unsuccessful.
62. Above stated racist actions and statements have been well known for years by the
Sheriff.
63. Plaintiffs have fully complied with the any grievance procedures.
64. Complaints made by Plaintiffs have not been seriously addressed and others were
simply not addressed.
65. The Sheriffs grievance procedure in place is not efficient and is legally
insufficient.
V. Count One
Violation of 42 U.S.C. § 1981
Race-Based Failure to Promote//Denial of Full Benefits.
Against Peed, Vickery and Gerber
66. The allegations of each of the foregoing paragraphs are incorporated herein as if
realleged.
67. Defendants denied plaintiffs Cutts, Shabazz and Bell the rights guaranteed to them
under 42 U.S.C. § 1981, which ensures that all persons "shall have the same right .
. . to make and enforce contracts," which is defined by 42 U.S.C. § 1981, to be
"the making, performance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of the contractual
relationship."
68. Defendants created and supported a system that resulted in a disproportionate
number of blacks being excluded from promotional opportunities and positions, and by
rewarding only a few blacks who supported racism which generally effected black employees.
69. Defendants Vickery and Peed terminated Cutts and Shabazz in violation of 42 U.S.C.
§ 1981.
70. Defendants Vickery and Peed denied Cutts, Shabazz and Bell the enjoyment of all
benefits, privileges, terms and conditions of the contractual relationship, by among other
things, denying special assignments, refusing to send blacks to National Conference
Training with the whites, creating a hostile work environment, failing to provide
unrestricted access to facilities unrestricted to whites, failing to provide secure
lockers, failing to investigate incidents, failing to consider plaintiffs for promotions,
failing to provide to plaintiffs leadership and other training and the like.
71. The defendants repeated failure and refusal to promote or transfer plaintiffs and
modify the employer-employee relationship in the manner that such a promotion or transfer
would entail was because of plaintiffs race and constitutes a violation of 42 U.S.C.
§ 1981.
72. It was futile for plaintiffs to apply for promotions.
73. The foregoing acts violate 42 U.S.C. § 1981.
74. As a result of the willful and discriminatory actions and wrongful acts of
employees of the Sheriff and his deputies set forth herein, and consistent with the
Sheriffs underlying policy and/or custom of unlawful discrimination against its
African-American employees, the plaintiffs have suffered lost income in the form of lost
compensation and other benefits and privileges of employment and has suffered emotional
distress, humiliation, embarrassment and mental anguish.
VI. Count Two
Violation of 42 U.S.C. § 2000e
Racial Discrimination
Against Sheriff Peed
75. The allegations of each of the foregoing paragraphs are incorporated herein as if
realleged.
76. Sheriff Peed and the County of Fairfax are employers subject to Title VII under 42
U.S.C.A. § 2000e(b), having 15 or more employees for each working day in each of 20 or
more calendar weeks in the current or preceding calendar year, and/or the agent of that
person.
77. Aforementioned acts and utterances by Defendants were made with and are based upon
racial and racist animus, and constituted unlawful discrimination based on Plaintiffs
race.
78. Aforementioned acts and utterances by Defendants were made with and are based upon
racial and racist animus together with animus towards the religion and religious practices
of Shabazz, and constituted unlawful discrimination based on Plaintiffs race and religion.
79. Defendants intended to discriminate based on race and/or religion.
80. Plaintiffs Cutts was treated less favorably than his peers because of his race.
81. Plaintiff Shabazz was treated less favorably than his peers because of his race and
religion.
82. Plaintiffs Bell was treated less favorably than her peers because of her race.
83. Plaintiffs were subjected to an abusive and hostile work environment because of
their race.
84. Plaintiff Shabazz was subjected to an abusive and hostile work environment because
of his race and religion.
85. The defendants conduct motivated by race had the purpose or effect of creating an
intimidating, hostile or offensive working environment and had the purpose or effect of
unreasonably interfering with plaintiffs work performance and/or otherwise adversely
affected plaintiffs employment opportunities in violation of Title VII and 29 C.F.R.
§ 1606.8(b).
86. The racially hostile working environment was sufficiently severe and/or pervasive
to alter the conditions of employment for plaintiffs and to create an abusive working
environment.
87. The acts of the defendants and the employees or agents of defendants were not
isolated or trivial.
88. The defendants knew or should have known of the conduct creating a hostile work
environment and failed to take prompt and effective remedial action.
89. As a result of Defendants discriminatory actions, Plaintiffs have suffered
lost income in the form of lost raises and lost career opportunities and lost wages.
90. Plaintiffs are now suffering and will continue to suffer irreparable harm and
injury as a result of Defendants' policies, practices, customs and usages as set forth
herein.
91. As a direct result of Defendants' discriminatory and wrongful acts as set forth
herein, Plaintiffs have suffered lost wages, income and expenses, emotional distress,
humiliation, embarrassment and mental anguish.
VII. Count Three
Violation of 42 U.S.C. §§ 2000e-3
Retaliation
Against Sheriff Peed
92. The allegations of each of the foregoing paragraphs are incorporated herein as if
realleged.
93. Plaintiffs engaged in protected activities under Title VII in opposing the unlawful
employment practices of the Sheriffs Department of Fairfax County Virginia.
94. Plaintiffs suffered adverse employment action which were causally connected
between the plaintiffs actions and the harm suffered.
95. Aforementioned acts and utterances by Defendants were made because of
Plaintiffs expressed opposition to earlier discriminatory acts and utterances, and
because of their complaints to their superiors and others about such acts.
96. Plaintiffs were made to feel shunned and isolated by the retaliatory actions of
Defendants.
97. As a result of Defendants retaliatory actions, Plaintiffs have suffered lost
income in the form of lost wages, raises and lost career opportunities.
98. Plaintiffs are now suffering and will continue to suffer irreparable harm and
injury as a result of Defendants' retaliatory acts and utterances as set forth herein.
99. As a direct result of Defendants' retaliatory and wrongful acts as set forth
herein, Plaintiffs have suffered medical expenses, emotional distress, humiliation,
embarrassment and mental anguish, and lost income.
VIII. Count Four
42 U.S.C. § 1983 Action for Violations of
First Amendment to the United States Constitution-Speech
Against Sheriff Peed
100. The allegations of each of the foregoing paragraphs are incorporated herein as if
realleged.
101. The actions of Defendants prohibiting plaintiffs from discussing their complaints
of racial discrimination and threatening or imposing punishment for such speech was and is
demeaning and humiliating to the plaintiffs and is an unconstitutional infringement upon
plaintiffs right to freedom of speech.
102. The Sheriff is responsible for the acts of his deputy sheriffs under Virginia law.
103. The supervisory defendants tacitly authorized or were indifferent to the specified
condition stated herein and are therefore personally liable under 42 U.S.C. § 1981. The
supervisory indifference and/or tacit authorization of their subordinates' misconduct was
a causative factor in the constitutional injuries they inflicted on the plaintiffs.
104. The actions of Defendants were committed by Defendants under color of the policy
and procedures of the Sheriffs Department for the County of Fairfax, the ordinances
of the County of Fairfax and the laws of the Commonwealth of Virginia.
105. The actions of Defendants violated plaintiffs rights under the Constitution
of the United States.
106. Defendants restraint of plaintiffs speech is an ongoing violation of
the First Amendment of the United States Constitution and is as such a per se
irreparable harm.
107. The interests of the Sheriff, as employer, in promoting the efficiency of the
public services it performs through its employees does not outweigh the interests of the
plaintiffs, as citizens, in commenting upon matters of public concerns.
108. Any alleged interests of the Sheriff, as employer, in promoting the efficiency of
the public services it performs through its employees must be weighed against the actions
it has taken against other employees who have spoken or acted in such a way as to be
grossly offensive and highly inflammatory and to exemplify a behavior that is malicious,
manipulative, inciting fellow employees, embarrassing the agency and the community,
adversely impacting the efficient operation of the Sheriffs Department, diminishing
the close working relationship, trust and teamwork necessary in an environment which could
place staff in a dangerous position, undermining the expectations and diminishing the
confidence of the public in the Sheriffs department.
109. Because the Sheriff failed to act to discipline employees who spoke or acted often
with regards to matters not protected by the First Amendment, because the speech or
actions were not regarding matters of public concern where such speech or actions were
grossly offensive and highly inflammatory and to exemplify a behavior that is malicious,
manipulative, inciting fellow employees, embarrassing the agency and the community,
adversely impacting the efficient operation of the Sheriffs Department, diminishing
the close working relationship, trust and teamwork necessary in an environment which could
place staff in a dangerous position, undermining the expectations and diminishing the
confidence of the public in the Sheriffs department, the interest of the Sheriff is
of negligible weight in any balancing test.
110. No compelling governmental interest will be or was served by Defendants
restriction of plaintiffs.
111. Defendants restriction of plaintiffs speech is not content-neutral.
112. Defendants restriction of plaintiffs speech is not narrowly tailored
to serve any significant government interest.
113. Defendants restriction of plaintiffs speech does not leave open ample
alternative channels of communication.
114. The restriction imposed by Defendants is imposed because of disagreement with the
message and was viewpoint discrimination.
115. Defendants acted in contravention of clearly established principles that speech
like that of Plaintiffs is constitutionally and otherwise protected by the laws of
the United States and does not lose its protection simply because Defendants believe that
the speech is critical, bluntly worded or directed at governmental officials.
116. Defendants actions towards plaintiffs constituted selective enforcement of
asserted rules by Defendants, and were based upon content and discriminated against
plaintiffs viewpoint.
117. The restrictions imposed upon plaintiffs were not reasonable time, place and
manner restrictions.
Policy and/or Custom
118. The Sheriffs Department of Fairfax Virginia had an official policy and/or
custom of content discrimination.
119. The termination was pursuant to and based upon the official custom and/or policy.
120. The policy or custom is not only a formal one, reflected in the Countys
Personnel Policies and Procedures Manual, but is also an informal one that is so permanent
and well settled as to constitute a custom or usage with the force of law in the County of
Fairfax.
121. The policy and/or custom which infringes, chills or otherwise restrains
constitutionally protected speech is reflected, inter alia, in Countys
Personnel Policies and Procedures Manual, § 19.6 ¶ 38 which reads in pertinent part as
follows: "Behaviors unbecoming a Fairfax local government employee...[is]...Any
conduct having an adverse effect on the Countys interest or on the confidence of the
public in County government."
122. The actions of the named officials herein are those having final authority to
establish the policy of the County of Fairfax due to their high rank, authority and
practice within the County.
123. The named officials herein are of such high rank within the County of Fairfax as
to be free from close review by higher authorities.
124. The constitutional injuries of Plaintiffs resulted from the official policy and/or
custom of the County of Fairfax.
125. The County of Fairfax had actual or constructive knowledge that the named
officials were engaged in conduct that posed a "pervasive and unreasonable risk"
of constitutional injury to citizens like the plaintiffs, that the Countys response
to that knowledge was so inadequate as to show deliberate indifference to or tacit
authorization of the alleged offensive practices, and there was an affirmative causal link
between the County and the particular constitutional injury suffered by the plaintiffs.
126. Defendants continue to take actions against Plaintiffs in retaliation for his
exercise of free speech, including but not limited to attempts to prevent him from
obtaining unemployment compensation after his termination.
127. As a result of Defendants actions against the plaintiffs, the plaintiffs
have suffered lost income in the form of lost compensation and other benefits and
privileges of employment and has suffered emotional distress, humiliation, embarrassment
and mental anguish.
128. The acts of Defendants complained of herein violated the rights of the plaintiffs
to freedom of speech under the First Amendment of the Constitution of the United States,
by without limitation, chilling plaintiffs speech, engaging in viewpoint
discrimination, and restricting his speech based upon content.
IX. Count Five
42 U.S.C. § 1983 Action for Violations of
First Amendment to the United States Constitution-Petition Government
Against Sheriff Peed
129. The preceding averments and allegations of this Complaint are incorporated herein
by this reference.
130. The acts of Defendants complained of herein violated the rights of the plaintiffs
to petition the government for a redress of grievances under the First Amendment of the
Constitution of the United States, by without limitation, chilling plaintiffs
petitioning, engaging in viewpoint discrimination, and restricting their petition based
upon content.
X. Count Six
42 U.S.C. § 1983 Action for Violations of
First Amendment to the United States Constitution-Association
Against Sheriff Peed
131. The preceding averments and allegations of this Complaint are incorporated herein
by this reference.
132. Plaintiffs, who had associated with Blacks in Government "BIG" and the
National Associated for the Advancement of Colored People "NAACP," were
restricted in their association and communication with these groups by defendants.
133. The acts of Defendants complained of herein violated the rights of the plaintiffs
to assemble under the First Amendment of the Constitution of the United States, by without
limitation, restricting plaintiffs right to associate and communicate with groups
including Blacks in Government "BIG" and the National Associated for the
Advancement of Colored People "NAACP."
WHEREFORE, with respect to Counts 1-6, the plaintiffs respectfully pray that this
Court:
a. Issue a declaratory judgment that the defendants acts, policies, practices and
procedures complained of herein violated the plaintiffs civil rights as secured by
42 U.S.C. §§ 1981, 1985, 1986 and 2000e et. seq; and the First Amendment of the
United States Constitution; and
b. Order the defendants to make whole the plaintiffs by providing appropriate back pay
and other benefits wrongly denied in an amount to be shown at trial and other affirmative
relief;
c. Order the defendant Sheriff Peed to reinstate Cutts and Shabazz with full benefits;
d. Enjoin further race and religious discrimination by the defendants and restrictions
and violations of plaintiffs First Amendment rights;
e. Grant plaintiffs their attorney's fees, costs and other disbursements; and
f. Award compensatory, punitive, and liquidated damages in the amount of $45,000,000.00
or such greater amount as may be proved at trial or such other sum as the law may provide;
and
g. Award front pay if appropriate in an amount to be proved at trial; and
h. Grant such addition relief as the Court deems just and proper.
A TRIAL BY JURY IS REQUESTED
This 13th day of May, 1999.
Respectfully submitted,
Robert L. Cutts,
Jabar Shabazz,
Gwendolyn B. Bell,
Thomas H. Roberts, Esq. (VSB 26014)
Tim Schulte, Esq. (VSB 41881)
Thomas H. Roberts & Associates, P.C.
105 South 1st Street
Richmond, Virginia 23219
Tele: (804) 783-2000
Fax: (804) 783-2105
Cooperating Attorneys for
Freedom Works Foundation
Counsel for Plaintiffs
Footnote to Paragraph 102: 1995 U.S. Dist.
LEXIS 19952 CARLTON V. WILLIAMS (E.D. Va. 1995) n.2. ( The United States Court of Appeals
for the Fourth Circuit has held that a sheriff may be responsible for the acts of a deputy
sheriff. Scott v. Vandiver, 476 F.2d 238, 242 (4th Cir. 1973). The Fourth Circuit found
that under South Carolina law, the sheriff was responsible for the deputy's acts and was
not insulated by the doctrine of respondeat superior, and that section 1983 allowed the
court to resort to state law to supply the elements of the civil rights claim. Id. at
240-43. In Whited v. Fields, 581 F. Supp. 1444 (W.D. Va. 1984), the United States District
Court for the Western District of Virginia analyzed a section 1983 claim against a sheriff
for the acts of his deputies and found the sheriff responsible for such acts. Id. at 1455
(stating that "not only is the sheriff liable civilly for the acts of his deputy in
Virginia, but he also is liable criminally and can be fined for the conduct of his
deputy"). The court found that under a section 1983 action involving a sheriff and
his deputy in Virginia, the doctrine of respondeat superior applied and the sheriff is not
automatically insulated from liability. Id. at 1456; see also Witt v. Harbour, 508 F.
Supp. 378, 379 n.3 (W.D. Va. 1980), aff'd, 644 F.2d 883 (4th Cir. 1981). Contrast, 1997
U.S. Dist. LEXIS 12274 MARTIN V. CHESAPEAKE CIRCUIT COURT (E.D. Va. 1997),951 F. Supp. 579
COUNTS V. NEWHART (E.D. Va. 1996) 1996 U.S. Dist. Lexis 18235 n.11, 1995 U.S. Dist. LEXIS
19950 MCBRIDE V. MCCABE (E.D. Va. 1995) JOSEPH FRANKLIN McBRIDE, III, Plaintiff, where the
courts do not address the unique nature of the Sheriff under Virginia law that makes the
Sheriff liable for all of his deputies.
Footnote to Paragraph 115: (e.g., New York Times Co.
v. Sullivan, 376 U.S. 254, 270 (1964) - a "profound national commitment [exists]
to the principle that debate on public issues should be uninhibited, robust, and
wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly
sharp attacks on government and public officials"; Garrison v. Louisiana, 379
U.S. 64, 67-79 (1964); Healy v. James, 408 U.S. 169 (1972).
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