Signs posted outside the U.S. Court of Appeals for the Eleventh Circuit. (Photo: John Disney/ALM)

An Atlanta appeals panel heard arguments by a former staff attorney at the DeKalb County Law Department who wants to revive an age discrimination lawsuit claiming he was ousted by a new county attorney who wanted to hire more "baby lawyers."

Former Senior Assistant County Attorney Mark Thompson also claims his firing violated Georgia's Whistleblower Act because he was fired after he began digging into allegations that a county contractor was taking kickbacks. That case ultimately led to a grand jury leveling multiple findings against county officials and contractors involving millions of dollars.

But the issue before the U.S. Court of Appeals for the Eleventh Circuit Tuesday centered on Thompson's assertion that then-County Attorney Overtis "O.V." Brantley fired him as part of a campaign to hire younger lawyers.   

Thompson's lawyer, Legare, Attwood & Wolfe partner Eleanor Attwood, said the evidence showed that, when Brantley came aboard in 2013, she began targeting older employees like Thompson—then a 54-year-old man with more than 11 years on the job.

Representing DeKalb County, Taylor English Duma partner Randy Gepp said Thompson was fired not because of his age but because he was argumentative and insubordinate and resisted demands that he work with other lawyers handling the kickback investigation.

Thompson's request to be relieved from handling that case, and a heated meeting with Brantley was "the last straw," said Gepp, who represents the county with firm partners Marc Taylor and Shawntel Hebert. 

Both Attwood and Gepp declined to discuss the case.

Thompson, now in private practice in Atlanta, began working for the county Law Department in 2003 and rose to the position of senior county attorney. In 2010, he was assigned to represent the county in a breach-of-contract suit filed by county contractor Paul Champion of Champion Tree Service, the case that would ultimately expose the bid-rigging and kickback allegations.

Former Fulton County Attorney Brantley was appointed to lead DeKalb's law department in 2013. Court filings say she made no secret of her desire to fill vacancies in the department with younger lawyers.

"When she became county attorney, Brantley learned that all of the county attorneys were senior assistant county attorneys or above, and there were no entry-level or lesser-experienced attorneys in the Law Department," said the county's appellate brief. 

"Each SACA had their own caseload and they did not work in teams. Brantley wanted to establish a team approach with more than one attorney on most files and a supervisory system where more experienced attorneys could utilize lesser-experienced attorneys," it said.

After her appointment, Brantley met with Thompson to discuss the Champion case. 

"Brantley observed that Thompson had difficulty explaining the case coherently or succinctly, but was passionate and emotional about it," the county's appellate brief said. 

Concerned about its complexity, Thompson recommended hiring outside counsel to assist. Following an adverse ruling in the case, Thompson asked to withdraw from the litigation. 

"During a contentious meeting to discuss Thompson's withdrawal, Brantley told him that he did not work well with others, was not a team player, and acted like a child," said the county's brief. 

"She deemed his insistence on withdrawing to be insubordination, and considered terminating his employment," it said.

In 2015, Thompson was allowed to withdraw from the case and offered a choice: Resign or be fired. He quit.

In 2017, Thompson sued the county and Brantley for age and race discrimination and for violation of Georgia's Whistleblower Act in DeKalb County Superior Court. The county had it removed to Georgia's Northern District Court.

Judge Mark Cohen dismissed the race and age discrimination claims on summary judgment in March 2019, but said the state whistleblower claims could proceed in state court. 

Thompson appealed the age discrimination ruling, and the state court claims remain pending in DeKalb Superior Court.

In arguing before an appellate panel including Chief Judge William Pryor Jr. and Judges Robin Rosenbaum and Robert Luck, Attwood argued that Cohen's decision brushed aside Brantley's demonstrated hostility toward older attorneys in general and Thompson in particular.

In categorizing Brantley's comments on older lawyers as "stray comments," said Attwood, the trial judge ignored evidence that a jury could infer as proof of age-based animus, notwithstanding the county attorney's assertions that Thompson was an obstreperous employee. 

"Given the backdrop of all this other evidence, this evidence of hiring trends and discriminatory remarks … a jury could listen to all that evidence and say, 'You know what? Ms. Brantley was making all that up,'" Attwood said.

Gepp did not dispute that Brantley had expressed a desire to hire "baby lawyers" by recruiting younger legal talent. But there were other lawyers older than Thompson in the Law Department who were not fired or forced out, while Thompson's own disrespectful demeanor offered "ample reason for any employer" to fire him, Gepp said. 

Thompson's wish to withdraw from the Champion case "is what started the ball rolling," he said, but his "contentious meeting" with Brantley was the "last straw."