Sie sind auf Seite 1von 20

Case 4:19-cv-00096-HLM-WEJ Document 21-3 Filed 07/26/19 Page 1 of 20

EXHIBIT B TO DEFENDANT SCOTT CHITWOOD’S


MOTION TO DISMISS PLAINTIFF’S
FIRST AMENDED COMPLAINT
Case 4:19-cv-00096-HLM-WEJ Document 21-3 Filed 07/26/19 Page 2 of 20
OGLETREE, DEAKINS, NASH,
SMOAK& STEWART, P.C.

Ogletree Attorneys at Law


Qne Ninety One Peachtree Tower
191 Peachtree St. NE, Suite 4800

Deakins Atlanta, GA 30303


Telephone: 404.881.1300
Facsimile: 404.870.1732
www.ogletree.com

Gregory J. Hare
404.870.1758
greg.hare@ogletree.com

Luke P. Donohue
404.870.1831
luke.donohue@ogletree.com

December 11, 2018

VIA EEOC RESPONDENT PORTAL


Robyn Conley
U.S. Equal Employment Opportunity Commission
Atlanta District Office
100 Alabama Street, S.W.
Suite 4R30
Atlanta, Georgia 30303
RE: EEOC Charge No. 410-2018-07126; Kayla Franks

Investigator Conley:

Our law firm represents the Respondent, Whitfield County (the ' 1Respondent") with regards
to the above-referenced Charge of Discrimination (the "Charge") filed by Kayla Franks ("Charging
Party" or "Deputy Franks"). 1 Respondent respectfully submits the following statement of position in
response to Deputy Franks's Charge.

I. The Charge

In her Charge, Deputy Franks alleges that she was discriminated against on the basis of her
sex (female) and retaliated against in violation of Title VII of the Civil Rights Act of 1964 ("Title
VII"). Specifically, Deputy Franks alleges that she was subjected to sexual harassment and

1
This position statement is a summary only and should not be considered a complete statement of all facts and defenses
that may relate to this matter. This position statement only addresses those allegations of which Respondent has been
specifically advised. If more specific allegations are made which have not been addressed in this position statement,
Respondent requests notice of such allegations and an opportunity to present evidence and argument in support of its
position. Additionally, Respondent expressly reserves the right to submit additional facts or arguments as may be
warranted by subsequently discovered information. This position statement is being submitted in an effort to resolve
this matter and does not constitute an affidavit, and it is not intended to be used as evidence in any judicial or
administrative proceeding. Respondent does not waive any objections that it may have, including but not limited to, lack
of jurisdiction over some or all of the allegations in the Charge. The infonnation is provided with the express
understanding and belief that it will be kept and reviewed in a confidential manner by the EEOC and that this
information will not be used in any other forum without the express written consent of Respondent.

Atlanta • Austin • Berlin (Gennany) • Birmingham • Boston • Charleston • Charlotte • Chicago • Oeveland • Columpia • Dallas • Denver • Detroit Metro • Greenville
Houston • Indianapolis •Jackson • Kansas City • Las Vegas • London (England) • Los Angeles • Memphis • Mexico City (Mexico) • Miami • Milwaukee • Minneapolis
Morristown• Nashville• New Orleans• New York City• Oklahoma City• Orange County• Paris (France) •Philadelphia• Phoenix• Pittsburgh• Portland• Raleigh• Richmond
St Louis • St Thomas • Sacramento • San Antonio • San Diego • San Francisco • Seattle • Stamford • Tampa • Toronto (Canada) • Torrance • Tucson • Washington
Case 4:19-cv-00096-HLM-WEJ Document 21-3 Filed 07/26/19 Page 3 of 20

Robyn Conley
December 11, 2018
Page 2

retaliated against for making complaints regarding such conduct. Respondent expressly denies all
claims and allegations made in the Charge. Deputy Franks was not subjected to any sexual
harassment, nor was she retaliated or discriminated against on the basis of her sex (or at all).
Further, Respondent never took any adverse actions against Deputy Franks. She was not terminated,
suspended, demoted, or disciplined. Instead, she voluntarily resigned. As will be further shown
below, Deputy Franks's claims are incontrovertibly false and a "no cause" determination is
appropriate in this matter.

II. Whitfield County's Commitment to a Harassment-Free Workplace

Whitfield County is an equal opportunity employer that maintains and enforces policies
designed to create and preserve a work environment free from unlawful discrimination and
harassment:

Whitfield County is committed to maintaining a work environment that is free of


discrimination and harassment. In keeping with this commitment, we will not
tolerate harassment of employees by anyone, including any supervisor, co-worker,
vendor, client or customer of Whitfield County.

Harassment consists of unwelcome conduct, whether verbal, physical, or visual,


that is based upon a person's protected status, such as sex, color, race, religion,
national origin, age, disability or other protected group status as provided for by
law. Whitfield County will not tolerate harassing conduct that affects tangible job
benefits, that interferes unreasonably with an individual's work performance, or
that creates an intimidating, hostile, or offensive working environment.

Generally, sexual harassment occurs if an employer or Department Head makes


the granting of sexual favors a condition of continued employment or promotion
in Whitfield County, or if a hostile or embarrassing atmosphere is created in the
workplace as a result of lewd remarks and obscene language. Allowing employees
to make unwelcome advances to co-workers also falls under the definition of
sexual harassment. Additionally, unwelcome sexual advances, requests for sexual
favors, and other physical, verbal, or visual conduct based on sex constitute
sexual harassment when (1) submission to the conduct is an explicit or implicit
term or condition of employment; (2) submission to or rejection of the conduct
issued as the basis for an employment decision; or (3) the conduct has the purpose
or effect of unreasonably interfering with an individual's work performance or
creating an intimidating, hostile, or offensive working environment. Sexual
harassment may include explicit sexual propositions, sexual innuendo, suggestive
comments, sexual oriented "kidding," or "teasing," "practical jokes," jokes about
gender-specific traits, foul or obscene language or gestures, displays of foul or
obscene printed or visual material, and physical contact, such as patting, pinching,
or brushing against another's body.

See ExhibitA: Select Policies. Respondent has established clear policies and procedures for
investigating, resolving, and preventing harassment in the workplace, which states:
Case 4:19-cv-00096-HLM-WEJ Document 21-3 Filed 07/26/19 Page 4 of 20

Robyn Conley
December 11, 2018
Page 3

All employees are responsible for helping to assure that we avoid harassment. If
you feel that you have experienced or witnessed harassment, either general or
sexual, you are to notify immediately (preferably within 24 hours) your
immediate supervisor or Department Head, or the Human Resources Department,
or other Whitfield County officials. If any of the above named is the harasser,
then obviously, you would bypass that person and go to higher Whitfield County
officials. You will be asked to put your complaint in writing and any retaliation
against anyone who reports harassment is forbidden.

If the allegations warrant, Whitfield County's policy is to investigate all such


complaints in a prompt and confidential manner. To the fullest extent practicable,
Whitfield County will keep complaints and the terms of their resolution
confidential. If an investigation confirms that harassment has occurred, corrective
action will be taken, including such discipline up to and including termination of
employment, as is appropriate.

Whitfield County recognizes that false accusations of sexual harassment can have
a serious effect on innocent men and women. Individuals falsely accusing another
of sexual harassment will be disciplined in accordance with the nature and extent
of his or her false accusations. Whitfield County encourages any employee to
raise questions he or she may have regarding sexual harassment or this policy,
with his or her immediate supervisor, a higher level Department Head, Human
Resources Department, or other Whitfield County officials.

All harassment is strictly forbidden by Whitfield County and shall not be


condoned or sanctioned in any way. Whitfield County shall deal forcefully,
quickly and thoroughly with any violator as circumstances dictate and in keeping
with due process oflaw.

Whitfield County will not tolerate any harassment of any nature and any
charge of harassment shall be promptly and confidentially investigated.

Id. (emphasis in original). Respondent further protects all employees who make good faith
complaints of misconduct from any and all retaliation:

Whitfield County encourages its employees to make good faith disclosures of


work related misconduct. Such disclosures are vital to the well-being of the entire
County's workforce. Retaliation, as a response to such disclosure, will not be
tolerated. Retaliation, whether actual or threatened, destroys a sense of trust that is
central to a quality environment. The County, therefore, wishes to make clear that
it considers acts or threats of retaliation, in response to such disclosures, a serious
violation of our policy.

Whitfield County will not tolerate retaliatory conduct based on an employee's


opposition to job discrimination, harassment, participation in discrimination
complaint proceedings, or simply participating in a County investigation.
Case 4:19-cv-00096-HLM-WEJ Document 21-3 Filed 07/26/19 Page 5 of 20

Robyn Conley
December 11, 2018
Page 4

Id. Deputy Franks acknowledged receipt and review of the handbook upon her hire and was trained
on these policies and procedures throughout her employment.

As you can see, Respondent does not tolerate any form of harassment by its employees, and
is committed to the confidential, thorough investigation and resolution of any such complaints.

III. Charging Party's Employment at Respondent

Respondent employed Deputy Franks as a Deputy Evidence Technician/Crime Scene


Investigator in Respondent's Criminal Investigation Division ("CID"). Since being hired in 2010,
Deputy Franks worked various other positions including Correctional Officer and Patrol Officer.

In the preceding months, up until to February 26, 2018, Deputy Franks ordinarily had
worked a shift of 8:00 am to 4:00 pm. However, around June 2017, Respondent began discussing
the business need for having an evidence Deputy available at hours after 4:00 pm. The reasoning
behind such a proposed change was that detectives and investigators often brought in evidence in
the afternoon. Without the proper evidence-processing deputy on duty, such evidence would not be
processed until the following day. Capt. Rick Swiney evaluated the possibility of having a Deputy
work a late-afternoon shift from 12:00 noon to 8:00 pm but ultimately tabled the idea and did not
alter schedules in 201 7.

In November 2017, then-Sargent Scott McAllister and then-Lieutenant Paul Woods met
with Deputy Franks to discuss her performance in the field. Unfortunately, Deputy Franks was
struggling to maintain productivity on her field patrols. Over the preceding months, Sgt. McAllister
had several discussions with Deputy Franks regarding her productivity, response time, and overall
performance. Also at that time, Respondent had recently hired a new Evidence Custodian who
needed to be trained in the processes and procedures of the evidence room. Therefore, the decision
was made to remove Deputy Franks from the field and instead place her in the evidence room,
partly to guide the new Custodian but also to increase her productivity and allow her to improve her
performance in a slightly different role. Deputy Franks accepted this new role and did not raise any
complaints about the change.

In approximately February 2018, now-Capt. Woods replaced Capt. Swiney as Captain of the
CID. One of the numerous initiatives that Capt. Woods pursued following his promotion was to
implement the late afternoon evidence Deputy that had been contemplated for business coverage
reasons the previous year. Respondent selected Deputy Franks for the newly-created late afternoon
shift primarily because she had less seniority than the other evidence technician. The Respondent
explained to Deputy Franks the importance of having a deputy on duty in the afternoon as evidence
came in to be processed. Deputy Franks objected that this shift change would complicate her ability
to be at home with her daughter.

On February 26, 2018, Deputy Franks tendered her resignation. See Exhibit B: Resignation
Letter. Despite Respondent's requests that Deputy Franks reconsider in hopes that an alternative
solution could be found, Deputy Franks was adamant that her decision was final. Despite her
resignation, Respondent worked with Deputy Franks to find her a new position in the Whitfield
County government system that would allow her to maintain her seniority and pension. As a result,
Deputy Franks immediately obtained a new job and continues to be employed there today.
Case 4:19-cv-00096-HLM-WEJ Document 21-3 Filed 07/26/19 Page 6 of 20

Robyn Conley
December 11, 2018
Page 5

After her resignation, Deputy Franks requested a meeting with Respondent's Human
Resources department. During this meeting, Deputy Franks raised concerns that Capt. Woods had
made inappropriate comments in her presence during her employment. As explained above,
Respondent's policies provide that employees can report complaints of inappropriate conduct to
"your immediate superVisor or Department Head, or the Human Resources Department, or other
Whitfield County officials." Prior to the resignation discussion with Human Resources, Deputy
Franks had not made any such complaints or raised any concerns through the proper channels. As a
result of this meeting, Respondent launched a thorough and diligent investigation into these
allegations. Though said investigation is still ongoing, Respondent has to date been unable to
corroborate Deputy Franks's allegations.

IV. Response to Charging Party's Allegations

A. Charging Party cannot establish a claim for sexual harassment.

In order to state a prima facie case for unlawful harassment, Deputy Franks must prove that
(1) she is a member of the protected group; (2) was the subject of unwelcome harassment; (3) the
harassment occurred because of her sex; (4) the harassment was sufficiently severe or pervasive to
alter the terms, conditions, or privileges of her employment; and (5) the employer knew, or should
have known, of the harassment and failed to take remedial action. Huddleston v. Roger Dean
Chevrolet, Inc., 845 F .2d 900, 904 (11th Cir. 1988) (citing Henson v. City of Dundee, 682 F .2d 897,
903-05 (11th Cir.1982)). Here, Deputy Franks cannot prove that she was the subject of unwelcome
harassment, that any alleged harassment was severe or pervasive, or that the employer knew or
should have known of the harassment and failed to take action.

During her employment and prior to voluntarily resigning from her job, Deputy Franks
never once raised an allegation of harassment. This alone is fatal to her claims. Further, Deputy
Franks is unable to show that actions she allegedly experienced were "sufficiently severe or
pervasive so as to alter the terms and conditions of employment." Henderson v. Waffle House, Inc.,
238 F. App'x 499, 503 (11th Cir. 2007). In evaluating the objective severity of the harassment, the
courts consider, among other factors (1) the frequency of the conduct; (2) the severity of the
conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive
utterance; and (4) whether the conduct unreasonably interferes with the employee's job
performance. Allen v. Tyson Foods, 121 F.3d 642, 647 (11th Cir. 1997). The standard for what
qualifies as "severe and pervasive" is immensely difficult to satisfy. For example, in Gupta v.
Florida Bd. of Regents, 212 F.3d 571, 578-79 (11th Cir. 2000), the Eleventh Circuit addressed an
alleged harasser who was accused of touching plaintiffs hand and the inside of her thigh, lifting her
dress hem, repeatedly asking her to lunch, telling her that she was beautiful, staring at her legs, and
calling her at home on numerous occasions at night and asking if she was in bed or talking to her
boyfriend. The court found that these acts were not sufficiently severe to create a sexually hostile
work environment. Id. at 584-86.

Here, Deputy Franks primarily claims that Capt. Woods made boorish, inappropriate
comments in connection with the department's review of evidence of a sexual nature. Deputy
Franks further alleges that Capt. Woods made boorish, inappropriate comments about female co-
workers. Deputy Franks' s allegations, even if true, fail to rise to the extremely high level of severe
Case 4:19-cv-00096-HLM-WEJ Document 21-3 Filed 07/26/19 Page 7 of 20

Robyn Conley
December 11, 2018
Page 6

and pervasive as established in the Eleventh Circuit. But even if these alleged actions were found to
be severe and pervasive, Deputy Franks' s claim would still fail because she cannot show that
Respondent knew, or should have known, about the harassment. Respondent has established
confidential and thorough procedures allowing employees multiple options to report any allegations
of harassment. See Exhibit A. Respondent ensures all those who make such complaints that they
will be protected from retaliation and that Respondent will diligently investigate any such
complaint. Despite her full awareness of these policies and procedures, I)eputy Franks never raised
any complaints through the proper channels while employed. Therefore, Deputy Franks' s claim of
sexual harassment clearly fails.

Even if Deputy Franks succeeded in establishing a claim of sexual harassment, which she
would not, Respondent would nevertheless prevail by establishing the Faragher/Ellerth affirmative
defense. "When no tangible employment action is taken by an employer, that employer may raise
the Faragher/Ellerth defense, subject to proving by a preponderance of the evidence: (a) that the
employer exercised reasonable care to prevent and correct promptly any sexually harassing
behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to avoid harm otherwise."
Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1296--97 (11th Cir. 2000).

With respect to the first prong of the affirmative defense, "[a]n employer can generally
satisfy its reasonable care requirement by, first, promulgating a comprehensive anti-harassment
policy and, second, promptly responding to the employee's complaint." Howard v. City of
Robertsdale, 168 Fed. Appx. 883, 887 (11th Cir. 2006). "With respect to the second prong, an
employer can generally satisfy its burden by showing the employee failed to follow its complaint
procedures." Howard v. City of Robertsdale, 168 Fed. Appx. 883, 887 (11th Cir. 2006).

Here, it is clear that Respondent established and maintained a comprehensive anti-


harassment policy, and that Deputy Franks was aware of these policies. See Exhibit A. These
policies define harassment, offer confidentiality, protect against retaliation, and provide a
confidential avenue for any employee who fears retaliation from his/her supervisors. Deputy Franks
failed to take advantage of these policies and did not follow the complaint procedures. Had she
complained of harassment through the proper channels during her employment, Respondent would
have immediately and thoroughly investigated her complaint. But she did not. Therefore,
Respondent would succeed on its defense that Respondent maintained a comprehensive anti-
harassment policy that Deputy Franks simply failed to follow.

B. Charging Party cannot establish a claim of retaliation.

In order to establish a prima facie case of retaliation, Deputy Franks must show (1) she
engaged in statutorily protected activity; (2) she suffered a materially adverse action; and (3) there
was a causal connection between the protected activity and the adverse action. Williams v. Waste
Mgmt., Inc., 411 Fed. Appx. 226, 229 (11th Cir. 2011). Deputy Franks cannot establish even one of
the elements of a claim of retaliation.

There is no evidence that Deputy Franks engaged in any protected activity. Deputy Franks
did not raise any complaints of inappropriate conduct until after she resigned. Even if she had
Case 4:19-cv-00096-HLM-WEJ Document 21-3 Filed 07/26/19 Page 8 of 20

Robyn Conley
December 11, 2018
Page 7

engaged in protected activity, which is denied, she did not suffer any materially adverse action.
Deputy Franks was never tenninated, demoted, or suspended during her employment with
Respondent. Instead, she voluntarily resigned due to a proposed change in her shift/schedule. Even
if she could articulate a materially adverse action, which she cannot, her claim of retaliation would
still fail because there could be no causal connection between any alleged protected activity and any
alleged materially adverse action. Respondent made the decision to change Deputy Franks' s shift
based on the legitimate needs of its evidence department. This decision bore no relation to the tenns
and conditions of her employment or any alleged harassment. Any retaliation claim brought by
Deputy Franks would fail as a matter of law.

V. Conclusion

Based on the above, Respondent respectfully requests the Commission dismiss this Charge
and issue a no cause determination. I look forward to hearing from you.

Sincerely,

Luke P. Donohue

Enclosures.

36534983.2
Case 4:19-cv-00096-HLM-WEJ Document 21-3 Filed 07/26/19 Page 9 of 20

Exhibit
A
Case 4:19-cv-00096-HLM-WEJ Document 21-3 Filed 07/26/19 Page 10 of 20

EMPLOYEE
HANDBOOK

WHITFIELD
COUNTY
GOVERNMENT
Revised 4/03/2017
Case 4:19-cv-00096-HLM-WEJ Document 21-3 Filed 07/26/19 Page 11 of 20

NOTICE AND DISCLAIMER


This Employee Handbook is provided to you as an employee of Whitfield
County (whether a member of the Merit System or not) to assist you in familiarizing
yourself with your rights and obligations under the Master Policy of the Whitfield
County Merit System. While we have attempted to accurately summarize the
provisions of the Master Policy, the Employee Handbook does not contain all of
the provisions of the Master Policy and is therefore not all inclusive. TO
DETERMINE WHAT YOUR SPECIFIC RIGHTS AND OBLIGATIONS ARE
UNDER THE MASTER POLICY YOU SHOULD CONSULT THE MASTER
POLICY AND NOT RELY ON THIS EMPLOYEE HANDBOOK. A COPY OF THE
MASTER POLICY IS AVAILABLE FOR YOUR REVIEW IN THE OFFICE OF THE
HUMAN RESOURCES DIRECTOR.

This Employee Handbook is not intended to amend or modify and DOES


NOT amend, modify, delete or add to your legal rights and obligations under the
Master Polley for the Whitfield Count Merit System and it is not intended and does
not represent the opinions, interpretations or representations of the County in
connection with said Master Policy. All of your rights and obligations under the
Merit System are set out in the Master Policy and the County specifically disclaims
any of the representations made in the Employee Handbook which may be
Inconsistent with the Master Policy as adopted by the County.

The contents of this Employee Handbook are also provided as a summary


of employee benefits, practices, rules and regulations that should assist you in the
successful performance of your job. The County reserves the right to modify,
suspend, or revoke any of the policies or procedures contained in the handbook at
any time with or without notice. None of the language contained in the handbook
should be construed to create an employment contract between the County and
its employees for a definite duration and that employment of the individual remains
terminable-at-will at any time by either part, unless otherwise noted.

No policy in this handbook should be interpreted to interfere with, restrain or


otherwise inhibit you in the exerc;se of your rights under the law. Nothing in this
employee handbook is considered proprietary.

11Page
Case 4:19-cv-00096-HLM-WEJ Document 21-3 Filed 07/26/19 Page 12 of 20

TABLE OF CONTENTS
EMPLOYMENT INFORMATION
Equal Employment Opportunity ............................... ,...............~.~.. .. . . 4
Salary Administration Program ................................. 11111111••••· .. ···............. 4
Appointments ...........................................................~······· . ···--···········•'"II 4
Probationary Period ........ 111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - · · 5
Attendance .........................u ..•1111111•••"•···············, .............................. "............. 5
Promotions/Transfers/Demotions ······•••111••··· ...... H............ ,. ••.•. _. ..•. .,...... 5
Employment of Relatives ... _, ................................... ~111 .. 11u•n•H••n~•"••11••• 6
Gifts and Gratuities ···········•11•··························. · ·"· 11·11·•· . ··•····· . ·····. •···.
Separations.......................................................................................... 6
6
II TIME OFF BENEFITS
Holidays .......................................................................1111'"···· . ••11t1•••............ •. .•• . • 8
Paid Time Off (PTO) ............................ "' ...................................... 11 w. . . . . . . . . . . . . . . . 8
Extended Leave (ELB) ........................................................................... 9
Extended Leave Bank (ELB) Donation Progrnm........................ 10
Civil Leave ....,. ........ 1 1 .................. 1 .•• 1 . ·•·····-······111..................................... .• ... .. 12
Funeral Leave ......................................................,..................................,...... ••• 13
Military Leave .................. .,........................................................................ .... 13
Extended Personal Leave •o················· ..··············-························-·
Famlly and Medical Leave of Absence.............................................
13
14
Inclement Weather and Emergencies .............................................. 18

Ill INSURANCE AND RELATED BENEFITS


Health Insurance·,. •. "'................................................................................ 19
Life Insurance ................................................................... 111....................... 19
Retirement Plan ...................................................... ~ .............. "............ ... .. 19
Section 457/Deferred Compensation Plan ....................................... 20
Section 125 Plan ·············••••11••································-··················· ........
Credit Union ....................."••••••.•••.•••.•••• ., .••• 411 . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • • • • • •
20
20
Workers' Compensation Insurance ................................. ................ 21
Supplemental Insurance .................................................................. *""II"····· 21
Direct Deposit ..................... , •.•...••••..••. ,..,.................................. 21

IV EMPLOYEE RESPONSIBILITIES AND CONDUCT


Quality Work Conditions ...................................................................... 22
Communication ........................... 111••·····················it.·•····••11················· . ·•· .••.. 22
Change of Employee Information ........ .......... .... •.• ................... .•. . .. •... 23
Outside Employment ••Ill••·············································-···············,..........
Smoking ...................................................... _,* .... "'........................................
23
23
Grievances .............................................................................................••• •• ••. • 24
Disciplinary Action ........................................................................... •• 24
Appeals ................................................................................................ ..... .... 26
Harassment Polley .................. 1 ...................................11......................... .. .... 26
Workplace Violence •.••••• ~............................................................. 28
Anti-Retaliation Polley .. ~ ................ 111 . . . . . . . . . . . . . . . . . . . . . . . . " . , . . . . . . . . . . . . . . . . . . .. " ' . . . 31
Code of Ethics ................................. ................................................... •. . .. . 33
Substance Abuse Policy ...... 11- . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . • • • • 35

21Pa.ge
Case 4:19-cv-00096-HLM-WEJ Document 21-3 Filed 07/26/19 Page 13 of 20

Polley on Arrests/Indictment and Convictions............................. 34


Safety Policy .................................,.............................. ,... 4....................... 111........ 37
Seat Belt Policy ..................... ,. .......... ., ... ~-····"'········
11 • • • • • • • • • • • • • • • .. · · , . · · · · 38
Political A'Ctivity ....................................................................."................. .. 38
Electronlc Mail/Internet Policy . ••. . •.. .. . . .• .. . ... •. .. . . . . . •. .. ... . .. ... ••.... .. 40
System Administrator Polley .. ... .. .. . ..... •.. .... .. .. .• ......... ... . . ... ....... 43
Social Medla .... 1111••·············· ............................. ......................... ... 44

3IPage
Case 4:19-cv-00096-HLM-WEJ Document 21-3 Filed 07/26/19 Page 14 of 20

I. EMPLOYMENT INFORMATION

EQUAL EMPLOYMENT OPPORTUNITY


It Is the Polley of Whitfield County to provide equal employment opportunities to all applicants and
employees of the County assuring fair and equitable treatment in all aspects of personnel administration.

Any applicant or employee who alleges discrimination In any personnel transaction shall have the right to
Informal counseling first with the immediate supervisor, and if not satisfied with the outcome of such, he
may exercise the right of formal grievance, pursuant to Section 1-1-34 of the Merit Polley.

SALARY ADMINISTRATION PROGRAM


Our policies are adopted to provide for the recruitment and development of the best available employee for
the County and to establish orderly procedures for administering that personnel system so as to be
consistent with recruiting, selecting·, and advancing employees on the basiS of their relative ability,
knowledge, and sklll, including open competition of qualified applicants for Initial appointment, and
establlshlng pay rates consistent with the principles of providing comparable pay for comparable work.

The Salary Administration Program Is the formal system for classifying positions and compensating
employees In the County. It Is divided Into two (2) distinct programs or plans: the Classification Plan, which
is the categorization of job positions, duties and necessary qualifications, and; the Compensation Plan,
which provides salary structures.

The Position Classification Plan provides. a systematic arrangement and inventory of the positions in the
County. Class specifications are descriptive and explanatory and are not necessarily inclusive of all duties
performed. They are designed to Indicate the types of duties and level of responsibilities assigned to the
class. If an employee has facts which Indicate that his/her position is improperly classtfled, the employee
may request the Human Resources Director to review the classification of the position , with the knowledge
of hislher department head. Such request shall be submitted In writing and shall contain a statement of
justification.

The Compensation Plan is designed as a fair and equitable method for payment of employees in the
County. The salar.y ranges include minimum and maximum rates of pay for all positions Included In the
Classlflcatlon Plan. In most cases, new employees shall be paid within the range between the minimum
rate of pay and market control point for the position. In addition to the basic salary schedule, the
Compensation Plan includes market adjustments. Each year, the County Board of Commissioners shall
vote on the appllcablllty and ability of the County to apply a wage adjustment to the salary structure. When
applicable, a percentage increase wlll be applied equally to all ranges.

APPOINTMENTS
The appointing authority of all positions within a department shall be the Department Head. A person
employed by the County shall be given one of the following appointments:

Probationary-The Initial six (6}-twelve (12) months employment period, based upon position,
during which an employee Is observed for effoctlve Job performance.

Provisional - A short term appointment of an existing county employee to an established position;


made only in the absence of a qualified applicant, not to exceed one (1)-year.

revised; 4/03/'2017
-4-
Case 4:19-cv-00096-HLM-WEJ Document 21-3 Filed 07/26/19 Page 15 of 20

disciplinary action. It Is also created to afford the department an opportunity to reevaluate Its position on
proposed dlscfpllnary actions and to affirm or correct if necessary. The procedure does not require a full
evidentiary hearing prior to the disciplinary action. It requires only that the employee be given an opportunity
to respond to the charges in writing. The Human Resources Director shall lssue a notice of determination
of final action not later than five (5) calendar days after the date qt the response.

For further details regarding disciplinary action and review process consult Section 1-1-33 of the Merit
Policy.

APPEALS

All regular employees who have received dlsclpllnary action as defined in Section 1-1-33, shall have the
right to an appeal before the Merit Board as provided for In this section.

A regular employee who has received disciplinary action may request the Merit Board to review the grounds
for such a disciplinary action by flllng a written request for such review with the Merit Board within five (5)
working days after the effective date of the disciplinary action. Such written request shall contain the
reasons the employee desires a review and the contentions of the employee as to the reasons the employee
believes that the employee should not have been disciplined. If the employee desires a hearing before the
Merit Board in connection with said review he shall request such hearing In writing as referred to above and
the hearing shall be held at the next regularly scheduled Merit Board meeting, provided that lf the next
regularty scheduled Merit Board meeting Is to be held within seven (7) days of less from the filing of such
written request, the hearing shall be held at the following regularly scheduled Merit Board meeting. If the
employee does not request a hearing, as provided above, the Board will investigate the facts surrounding
the disciplinary action and shall review the disclplinary action at its next regularly scheduled meeting.

Upon the receipt of a written request for review, as provided above, the Human Resources Director shall
notify the Departmeht Head of the request and shall send the Department Head a copy of the written
request. In the event the employee has requested a hearing before the Board, the Human Resources
Director shall also send the Department Head a request that the Department Head, or hls representative,
be and appear at the hearing to present evidence of the Department Head's position in response to the
employee's contentions. If a hearing before the Merit Board has been requested in accordance with the
provisions as set out above, the employee may, if he desires, and at his expense, be represented by an
attorney at such hearing. In the event an employee employs an attorney to represent him at the hearing,
the employee or attorney shall, within three (3) day:s of such employment, notify the Merit Board in writing,
stating the name, address and telephone number of the attorney representing the employee.

The hearing before the Merit Board shall be open to the public. However, that portion of the hearing during
which the Merit Board deliberates and votes on the appeal shall be closed to the public In accordance with
law. The decision of the Merit Board on any review of any disciplinary action flied wltH It shall be given In
writing to the employee and the Department Head within ten (10) working days following the meeting at
which such disciplinary act is reviewed. Such decision of the Merit Board shall be final. Coples of all
relevant documents shall be made and kept by the Human Resources Director in the employee's file.

HARASSMENT POLICY
Whitfield County is committed to maintaining a work environment that is free of discrimination and
harassment. In keeping with this commitment, we w!ll not tolerate harassment of employees by anyone,
including any sup~rvisor, co-worker, vendor, client or customer of Whitfield County.

Harassment consists of unwelcome conduct, whether verbal, physical, or visual, that is based upon a

revised: 4/0312017
-26 -
Case 4:19-cv-00096-HLM-WEJ Document 21-3 Filed 07/26/19 Page 16 of 20

person's protected status , such as sex, color. race, religton, national origin, age, disability or other protected
group status as provided for by law. Whitfleld County wUI not tolerate harassing conduct that affects tangible
job benefits, that interferes unreasonably with an individual's work performance, or that creates an
intimidating, hostlle, or offensive worklng environment.

Sexual Harassment

Generally, sexual harassment occurs if an employer or Department Head makes the granting of sexual
favors a condition of continued employment or promotion in Whitfield County, or if a hostile or embarrassing
atmosphere is created in the workplace as a result of lewd remarks and obscene language. Allowing
employees to make unwelcome advances to co~workers also falls under the definition of sexual
harassment. Additionally, unwelcome sexual advances, requests for sexual favors, and other physical,
verbal, or visual conduct based on sex constitute sexual harassment when (1) submission to the conduct
is an explicit or Implicit term or condition of employment; (2) submission to or rejection of the conduct issued
as the basis for an employment decision; or (3) the conduct has the purpose or effect of reasonably
Interfering with an individual's work performance or creating an Intimidating, hostile, or offensive working
environment. Sexual harassment may Include explicit sexual propositions, sexual innuendo, suggestive
comments, sexual oriented "kidding,n or "teasing,'' "practical jokes," jokes about gender-specific-traits, foul
or obscene language or gestures1 displays of foul or obscene printed or visual material, and physical
contact, such as patting, pinching, or brushing against another's body.

Complaint Procedure

All employees are respohslble for helping to assure that we avoid harassment. If you feel that you have
experienced or witnessed harassment, either general or sexual, you are to notify immediately (preferably
within 24 hours) your immediate supervisor or Department Head, or the Human Resources Department, or
other Whitfield County officials. If any of the above named is the harasser, then obviously, you would
bypass that person and go to higher Whitfield County officials. You wlll be asked to put your complaint In
writing and any retaliation against anyone who reports harassment Is forbidden.

If the allegations warrant, Whitfield County's pollcy Is to investigate all such complalnts In a prompt and
confidential manner. To the fullest extent practicable, Whitfield County will keep complaints and the tenns
of their resolution confidential. I{ an investigation confirms that harassment has occurred, corrective action
wlll be taken, including such discipline up to and Including termination of employmen.t, as is appropriate.

Whltfleld County recognizes that false accusations of sexual harassment can have a serious effect on
Innocent men and women. Individuals falsely accusing another of sexual harassment wltl be disciplined In
accordance with the nature and extent of his or her false accusations. Whitfield County encourages any
employee to raise questions he or she may have regarding sexual harassment or this policy, with his or her
immediate supervisor, a higher level Department Head, Human Resources Department, or other Whitfield
County officials.

All harassment is strictly forbidden by Whitfield County and shall not be condoned or sanctioned In any
way. Whitfield County shall deal forcefully, quickly and thoroughly with any violator as circumstances
dictate and In keeping with due process of law.

Whitfield County will not tolerate any harassment of any nature and any charge of harassment shall
be promptly and confidentially investigated.

revised: 4/03fl017
- 27.
Case 4:19-cv-00096-HLM-WEJ Document 21-3 Filed 07/26/19 Page 17 of 20

ANTl-RETALIATl ON POLICY
PRINCIPLE:
Whltfleld County encourages Its employees to make good faith disclosures of work related misconduct.
Such disclosures are vital to the well-being of the entire County's workforce. Retaliation, as a response
to such disclosure, will not be tolerated,. Retaliation, whether actual or threatened, destroys a sense of
trust that is central to a quality environment. The County, therefore, wishes to make clear that It
considers acts or threats of retaliation, in response to such disclosures, a serious violation of our policy.
Whitfield County will not tolerate retaliatory conduct based on an employee's opposition to job
discrimination, harassment, participation In discrimination complaint proceedings, or simply participating
in a County investigation.

DEFINITIONS:
a. "Good Faith Disclosure" means disclosure of County-related misconduct made with a
belief In the truth of the disclosure, which a reasonable person In the whlstleblowe~s
position could hold based upon the facts. A disclosure is not In good faith If made with
reckless disregard for or willful ignorance of facts that would disprove the disclosure.

b. "County~Related Misconduct" Includes any activity by a county department or by an


employee that Is undertaken In the performance of the employee's official duties,
whether or not such action Is within the scope of the Individual's employment, and that Is
in violation of any state, federal law, or regulation or County regulation or policy,
Including but not limited to corruption, bribery, theft of County proparty, fraudulent
claims, fraud, coercion, conversion, discrimination, sexual harassment, workplace
violence, civil rights violations, misuse of County property and facllltles, or wlllful failure
to perform duty.

c. 'Whistleblowlng" means good faith reporting of real or perceived county-related


misconduct.

d. "Whistleblower" means any employee who In good faith reports real or perceived
county-related misconduct.

e. "Retaliation" means any adverse action or credible threat of an adverse action taken
by the County, or member thereof, In response to a whistJeblower's good faith
disclosure of County-related misconduct. It does not Include the County's decision to
investigate a good faith disclosure of county-related misconduct.

f. "No-Contact Order" means that an employee Is instructed to have no contact with


specified person{s) against whom they are alleged or confirmed to have committed an
act of violence. For example, a Department Head In agreement with the Human
Resources Director may order an employee to: avoid contact and communication with
the protected person directly, Indirectly, or through a third person. This Includes face to
face, telephone, e-mail, letter, or fax contact.

SCOPE:
No Whitfield County employee shall engage In retaliation in response to whistleblowlng or to the
bringing of a complaint.

Actions are considered retaliatory if they are in response to a good faith disclosure of real or
perceived County-related misconduct and the actions have a materially adverse effect on the
working conditions of'the whlstleblower, or If the employee can no longer effectively carry out his

~vised: 4/03/2017
- 31 ~
Case 4:19-cv-00096-HLM-WEJ Document 21-3 Filed 07/26/19 Page 18 of 20

or her job responsibilities.

The County will make every reasonable effort to stop retaliation Immediately, to conduct a
complete and thorough investigation of alleged acts of retaliation in a tlmely manner, to provide
remedies to victims of retaliation, and to sanction the perpetrators of retaliation as appropriate.

The act of a good faith disclosure of County-related misconduct shall not be used to make any
decision to the whlstleblower's detriment, or to subject the whlstleblower to harassment such
that It creates a hostile work environment.

Reports of alleged County~related misconduct that are not made In good faith are not protected
under this policy. Those who make disclosures not In good faith wllf be disciplined as
appropriate through regular County procedures, Irrespective of the origin or the intent of the
allegations, in the event the allegations are not substantiated, the County In consultation with
the accused shall take all reasonable steps within the control of the County to restore the
reputation of the accused to the extent that it was damaged by the Investigation and
proceedings, for example, expunging all references to the allegations in the personnel records
of the accused.

SANCTIONS:
Following an appropriate Investigation, any employee who violates the anti-retaliation policy Is subject to
disciplinary actlon(s), and may Include temporary "no~contact orders".

PROCEDURE:
a. Informal
Whltfleld County encourages the informal resolution of complaints. Informal complaints
should be concluded within 30 calendar days of their Inception. Where this is not
reasonably possible, the person processing the complaint should notify the complainant
In writing that conclusion of the complaint will be delayed and Indicate the reasons for
delay. The procedures used to resolve complaints Informally may vary from department
to department. However, Supervisors/Department Heads/Elected Officials who are
handling informal complaints should follow the following guidelines:

(1) Inform the complainant of formal procedure options and that the Identity of
the complainant and the nature of the charge will be disclosed to the accused if
a formal Investigation commences.

(2) Inform 'the complainant that any time he or she is not satisfied with the
informal process, he or she can Initiate a fotmal complaint.

(3) Prior to hearing details of a complaint, Inform the complainant that In some
cases the County has a legal obligation as a mandatory reporter to Inform
outside agencies of County related misconduct.

(4) To the extent possible, work with the parties in a confidential manner to
achieve an Informal resolution.

(5) If in your judgment the accusation represents a serious violation of County


policy and you subsequently orally advise the complainant to proceed with
formal action, additionally Inform the complainant in writing of this

revised: 4/0312017
-32-
Case 4:19-cv-00096-HLM-WEJ Document 21-3 Filed 07/26/19 Page 19 of 20

Exhibit
B
Case 4:19-cv-00096-HLM-WEJ Document 21-3 Filed 07/26/19 Page 20 of 20

Friday February 23, 2018

Sheriff,

Please accept this letter·as my formal notl'ce of resignation. My last day of employment will be Friday
March 9, 2018 as this all'ows for a two~week notice.
I since rely ·regret that I have·to lnform you of this. decision; unfortunately I was left with no: other option.
My workschedule·chaf1glngfrom .84to~ 12;..8_ creates a hardship for· myfamnv~ due:to the.-f ad thatmy
husband fs·currently··deployed. Thts.Jsa diffic1Jl_t decision for me to make,·espeeia'lly when! saw myself
retirlng:frorri.th\s. ~r;>:1;1rJty with·30 years of law ·en:f()rcement,experieoce.·under my belt
I want to gradously thank :you for the fast almost ·eight years of employment with this department and
the opportunities.I have..been ghlen •.1·:have grown and maturedwith the·people in this department and
It Is a true hon·or to have-them ·as ~'Part ofrnv '~1.Jlu~',.fam'i.ly, Yoli pe,rscmallY; have a:1Vilavs ~een wll\Jng to
go above and beyond:to,:g¢t to know.youremploye·es. I.arn proud to say thatt'Mve· worked· fo~ sheriff
Scott Chitwood!

Sincer·ely,
Kay!~ fran~ -

62