Shahar v. Bowers

BIRCH and BARKETT, Circuit Judges, and GODBOLD, Senior
Circuit Judge, dissenting:
Motion to Supplement the Record or for a Remand to Do So:
We dissent from the court’s denial of Ms. Shahar’s motion
to supplement the record. Mr. Bowers’ public statement is

relevant to whether his asserted fear of adverse public reaction
to perceived sexual misconduct of persons in the Georgia

Department of Law was a bona fide reason for terminating

Shahar, and to whether he acted as a non-discriminatory
decisionmaker in the Shahar matter.

Failure to seek discovery at the trial level is no bar to

supplementing the record. The inquiry at the trial court stage

concerned policy relating to employees of the Department, not

the conduct of Mr. Bowers himself as head of the Department
or his capacity as a decisionmaker concerning Shahar.

Moreover, the discovery “agreement”1 below is irrelevant to this
motion to supplement. Shahar does not ask that she somehow
be allowed to pursue discovery in contravention of the

agreement. Bowers admitted publicly certain facts, less than

1
The record shows that the alleged agreement was never executed by the parties. We assume
that there was an agreement to limit discovery for the purpose of this motion.

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one week after the decision of the en banc court was published.
The case is still open, as it is subject to a petition for rehearing.

See Fed. R. App. P. 40. Shahar asks that the court
supplement the record with Bowers’ admission. We see no

difference between this situation and one where Bowers would
have made his admission before the en banc decision issued.

Surely, at that stage, Shahar’s failure to pursue the new
information below would have worked no bar to supplementing
the record.

The majority contends that the equities are against Shahar

to supplement the record at this late stage because she failed

to discover the information about Bowers’ affair in the district

court. We submit that the majority should have, in balancing
the equities, also considered the fact that Bowers waited until a
few days after its decision issued before he made the

information public. This timing, to say the least, is suspicious;
especially considering that, despite his discovery agreement
with Shahar, Bowers was able to argue in this court “issues of

public perception and of appearances on the matter of sodomy
and []married[] homosexuals in general.” Majority Order at 3

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n.1. Not only was Bowers able to argue that point, but he also
was able to argue that Shahar could not function as a

trustworthy member of his staff because she likely had a
conflict of interest with respect to Georgia’s sodomy laws.
Considering that Bowers admits that, perhaps at the very time

he fired Shahar, he also was breaking Georgia’s adultery and
fornication laws, his justification is entitled to no weight. At the

very least, Bowers’ justification evinces discrimination against

Shahar solely on the basis of her status as a homosexual,

since Bowers did not make the same assumption about conflict

of interest with respect to himself or other lawyers in his
department. See Shahar v. Bowers, 114 F.3d 1097, 1128-29 &

nn.6-7 (11th Cir. 1997) (Birch, J., dissenting).

Judicial notice is obviously appropriate. The “newspaper
account” was not a reporter’s conclusion or a statement by a

third party; it was a statement by Mr. Bowers himself made
through his own political campaign headquarters, admitting his
conduct and asking forgiveness for it. It was published

nationwide by newspapers, radio, television, and magazines of
national circulation. Surely this court can know the content of a

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statement that is relevant, accurate because made by Mr.
Bowers himself, and known to millions. Moreover, in light of the

fact that “Attorney General Baker and Mr. Bowers have no
objection to the Court’s including the proffered information in
the record of this case,” Response of Attorney General

Thurbert E. Baker and Former Attorney General Michael J.
Bowers to Appellant’s Motion to Supplement the Record or for

a Remand to Do So at 7, we fail to see why the court refuses to

do so.

Petition for Rehearing:
We dissent from the court’s denial of Ms. Shahar’s petition

for rehearing.

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