Netter v. Guilford County Sheriff's Office et al

BRIEF re MOTION to Compel .

M.D.N.C.June 5, 2017

-1- IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA CATHERINE NETTER, Plaintiff, V. SHERIFF BJ BARNES in his official and personal capacities, Defendant. CASE NO.: 1:15-CV-00843- CCE-JEP MOTION TO COMPEL DISCOVERY RESPONSES NOW COMES the Plaintiff Catherine Netter (“Netter”) and issues the following brief in support of her Motion to Compel Discovery Responses STATEMENT OF THE CASE On January 23, 2017, Netter served on Defendant Plaintiff’s Second Set of Interrogatories and Requests for Production of Documents (the “Second Set of Discovery Requests”). On January 26, 2017, Defendant informed Netter’s counsel that he would not respond to the Second Set of Discovery Requests because of pending motions in this case. On April 12, 2017, a hearing was held before a United States District Court Magistrate Judge, after which the discovery deadline was extended and a new discovery schedule was Case 1:15-cv-00843-CCE-JEP Document 62 Filed 06/05/17 Page 1 of 19 -2- established. The Magistrate Judge ruled that Defendant would have to respond to the Second Set of Discovery Requests. (Docket Entry (“D.E.” 60, p. 6)). On April 26, 2017, Netter served on Defendant Plaintiff’s Third Set of Interrogatories and Requests for Production of Documents and Plaintiff’s First Set of Requests for Admission (the “Third Set of Discovery Requests”). On May 12, 2017, Defendant issued a set of responses (the “Second Responses,” attached as Exhibit 1) to the Second Set of Discovery Requests. These responses were deficient. On May 15, 2017, Netter issued a letter (attached as Exhibit 2) to the Defendant requesting supplementation of the deficient responses to the Second Set of Discovery Requests. On May 26, 2017, Defendant issued a set of responses (the “Third Responses,” attached as Exhibit 3) to the Third Set of Discovery Requests. These responses were deficient. Defendant also responded to Netter’s letter requesting supplementation to the Second Set of Discovery Requests by refusing to supplement his responses (attached as Exhibit 4). On May 31, 2017, Netter issued a letter to the Defendant requesting supplementation of the deficient responses to the Third Set of Discovery Requests Case 1:15-cv-00843-CCE-JEP Document 62 Filed 06/05/17 Page 2 of 19 -3- (attached as Exhibit 5).1 Defendant refused to supplement his responses (attached as Exhibit 6). ARGUMENT 1. Standard of review. Rule 26 of the Federal Rules of Civil Procedure provides for the discovery of relevant, non-privileged information which “appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b). “‘Relevance” under Rule 26 “has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); Carefirst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390, 402 (4th Cir. 2003) (noting that the scope of discovery under Rule 26(b) is “broad in scope and freely permitted”); UAI Technology, Inc. V. Valutech, Inc., 122 F.R.D. 188, 191 (M.D.N.C. 1988) (“The need for the information is a function of its relevancy, which in turn is construed more broadly for purposes of discovery and is not tied to admissibility.”). 1 Defendant has expressed his intent to produce some of the information being compelled once a protective order is in place. However, as the parties have yet to agree to the form of a protective order, Netter remains unaware of the actual contents of those responses. Netter moves to compel all requested information that she had not yet received. Case 1:15-cv-00843-CCE-JEP Document 62 Filed 06/05/17 Page 3 of 19 -4- In the Fourth Circuit, the “party or person resisting discovery, not the party moving to compel discovery, bears the burden of persuasion.” Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, (M.D.N.C. 226). In general, “district courts ‘have broad discretion in [their] resolution of discovery problems that arise in cases pending before [them].’” Carefirst, 334 F.3d at 404 (quoting Mylan Laboratories, Inc. v. Akzo, N.V., 2 F.3d 56, 64 (4th Cir. 1993)). In Hairston v. Barnes, 1:15CV1100 (M.D.N.C. May 19, 2017), a similar case alleging race discrimination against Sheriff Barnes, Chief Judge Osteen found, When attempting to show that Defendant’s theoretical non-retaliatory reasons were actually pretext, a showing of facts supporting allegations of past race-based disparate treatment by Defendant may be relevant to show intent. As such, this court finds that the allegations contained in paragraphs 8 through 37 of the Second Amended Complaint could have possible bearing upon the subject matter of the litigation, as they may show Defendant’s discriminatory intent. Id. at pp. 17-18 (internal citations and quotations omitted). The “paragraphs 8 through 37 of the Second Amended Complaint” in Hairston are exactly the same as paragraphs 8 through 37 of Netter’s proposed Second Amended Complaint (D.E. 35-), which alleged facts showing “past race-based disparate treatment by Defendant.” Id. Here, Netter’s requests fall under the broad definition of relevance used in Rule 26 because the information sought has already been judged relevant by this court. Netter’s Case 1:15-cv-00843-CCE-JEP Document 62 Filed 06/05/17 Page 4 of 19 -5- requests seek from the Sheriff exactly the same information that Chief Judge Osteen deemed relevant to show intent: past hiring, firing, demotion, promotion, and disciplinary practices. Additionally, Defendant would not suffer an undue burden, as most of the information requested is already compiled and kept on record by the Sheriff’s Office as a matter of course. 2. Interrogatory 15 seeks a comparison of Netter’s performance metrics to similarly-situated employees. Defendant has refused to state how Netter’s performance ratings compared to other employees. This is relevant because Defendant has denied that Netter was an excellent employee who received exemplary performance reviews, which could have bearing on its failure to promote Netter, yet Netter consistently scored 4s and 5s out of 5 on Defendant’s performance evaluations. (D.E. 57 ¶ 9; D.E. 59 ¶ 9). If 4s and 5s are not considered excellent, then Defendant should be compelled to explain its performance metric. 3. Interrogatory 16 seeks information regarding Defendant’s promotional practices. Defendant has refused to identify GCSO patrol officers who have reached or exceeded the rank of Master Corporal during Sheriff Barnes’s administration and state their race. Chief Judge Osteen specifically stated in Hairston that this was relevant to a case of race discrimination against the Sheriff. See 1:15CV1100 at 17-18 (paragraph 9 of the Case 1:15-cv-00843-CCE-JEP Document 62 Filed 06/05/17 Page 5 of 19 -6- complaint in Hairston reads, “In the twenty-two years that Barnes has been Sheriff, no black patrol officer has ever exceeded the rank of Master Corporal and only two have attained the rank of Master Corporal. This is out of approximately 100 individuals who have reached the rank of Master Corporal.”). 4. Interrogatory 17 seeks information regarding Defendant’s promotional practices Defendant has refused to identify GCSO officers on specialized teams during Sheriff Barnes’s administration and state their race. Chief Judge Osteen specifically stated in Hairston that this was relevant to a case of race discrimination against the Sheriff. See 1:15CV1100 at 17-18 (paragraph 10 of the complaint in Hairston reads, “There are no black officers on any of the Specialized Teams in patrol, excluding the Honor Guard.”). 5. Interrogatory 19 seeks details regarding the process used by the Sheriff and GCSO officer overseeing the promotional exam for detention lieutenant to pick candidates to promote from the list of those who pass. Defendant has failed to answer this question with specificity, explaining only that candidates are promoted based on a determination by the Sheriff of their “individual suitability.” Defendant has refused to explain what “individual suitability” means or what criteria are used to determine it. This is directly relevant to the case because Netter sought to be promoted to detention lieutenant. Additionally, Chief Judge Osteen specifically stated in Hairston that this was relevant to a case of race discrimination against Case 1:15-cv-00843-CCE-JEP Document 62 Filed 06/05/17 Page 6 of 19 -7- the Sheriff. See 1:15CV1100 at 17-18 (paragraph 12 of the complaint in Hairston reads, “White officers of questionable competence routinely make the pass list and are selected for promotion over their more highly-qualified black counterparts.”). 6. Interrogatory 20 seeks information on the process by which a detention officer transfers to patrol. Defendant has refused to answer this interrogatory or object with any specificity, instead relying on a pro forma objection. Chief Judge Osteen specifically stated in Hairston that this was relevant to a case of race discrimination against the Sheriff. See 1:15CV1100 at 17-18 (paragraphs 11, 12, 15, 16, and 17 of the Hairston complaint allege that the Sheriff discriminates based on race in deciding who he allows to transfer to patrol). 7. Interrogatory 21 seeks information on the process used by Defendant to pick candidates to promote from detention to patrol from the list of those who pass. Defendant has refused to answer this interrogatory or object with any specificity, instead relying on a pro forma objection. Chief Judge Osteen specifically stated in Hairston that this was relevant to a case of race discrimination against the Sheriff. See 1:15CV1100 at 17-18 (paragraphs 11, 12, 15, 16, and 17 of the Hairston complaint allege that the Sheriff discriminates based on race in his promotional practices). Case 1:15-cv-00843-CCE-JEP Document 62 Filed 06/05/17 Page 7 of 19 -8- 8. Interrogatory 22 seeks information regarding testing for promotion and actual promotion of individuals within the Sheriff’s office. Defendant has offered to produce a list containing the name, race, gender, and date of test for each officer who tested for promotion during the time period of January 1, 2009, through December 31, 2014. Plaintiff has not yet received this list. Additionally, this period of time is insufficient in scope, as Netter has alleged a long history of discrimination, and this date range does not even cover the entire time period directly at issue in this case. Chief Judge Osteen specifically stated in Hairston that this was relevant to a case of race discrimination against the Sheriff. See 1:15CV1100 at 17-18 (paragraphs 11, 12, 15, 16, and 17 of the Hairston complaint allege that the Sheriff discriminates based on race in his promotional practices). 9. Interrogatory 23 seeks information regarding Defendant’s practice of hiring employees directly into the patrol division from the public without current Basic Law Enforcement Training (“BLET”). Defendant has refused to answer this interrogatory or object with any specificity, instead relying on a pro forma objection. Chief Judge Osteen specifically stated in Hairston that this was relevant to a case of race discrimination against the Sheriff. See 1:15CV1100 at 17-18 (paragraph 16 of the Hairston complaint reads, “Sheriff Barnes never hired a black employee off the street for Basic Law Enforcement Training—the training to become a patrol officer—until after TH, another black officer, filed a discrimination complaint in April, 2015, though he hired many white employees this way.”). Case 1:15-cv-00843-CCE-JEP Document 62 Filed 06/05/17 Page 8 of 19 -9- 10. Interrogatory 24 seeks information regarding Defendant’s practice of transferring employees from detention into the patrol division without current BLET. Defendant has refused to answer this interrogatory or object with any specificity, instead relying on a pro forma objection. Chief Judge Osteen specifically stated in Hairston that this was relevant to a case of race discrimination against the Sheriff. See 1:15CV1100 at 17-18 (paragraph 16 of the Hairston complaint reads, “Sheriff Barnes never hired a black employee off the street for Basic Law Enforcement Training—the training to become a patrol officer—until after TH, another black officer, filed a discrimination complaint in April, 2015, though he hired many white employees this way,” and paragraph 17 reads, “Black employees are rarely allowed to move into patrol positions, and are mostly employed in the less-desirable detention positions.”). 11. Interrogatory 25 seeks information regarding Defendant’s promotional practices. Defendant has refused to identify GCSO patrol officers who have reached or exceeded the rank of Master Corporal during Sheriff Barnes’s administration and state their race. Chief Judge Osteen specifically stated in Hairston that this was relevant to a case of race discrimination against the Sheriff. See 1:15CV1100 at 17-18 (paragraph 9 of the complaint in Hairston reads, “In the twenty-two years that Barnes has been Sheriff, no black patrol officer has ever exceeded the rank of Master Corporal and only two have Case 1:15-cv-00843-CCE-JEP Document 62 Filed 06/05/17 Page 9 of 19 -10- attained the rank of Master Corporal. This is out of approximately 100 individuals who have reached the rank of Master Corporal.”). 12. Interrogatory 27 seeks information specifying how the internal investigation process works. Defendant has partially answered the request for information detailing the investigation process, but has refused to identify who initiates internal investigations. This is directly relevant to the present case because Netter was investigated, suspended, and terminated based on the results of this investigation, and alleges that the investigation, suspension, and termination were retaliatory. 13. Interrogatory 28 seeks information specifying how the investigation process worked in Netter’s case. Defendant has partially answered the request for information detailing the investigation process, but has refused to identify who initiated the internal investigations into Netter. This is directly relevant to the present case because Netter was investigated, suspended, and terminated based on the results of this investigation, and alleges that the investigation, suspension, and termination were retaliatory. 14. Interrogatory 35 seeks clarification on what it means to violate department policy “Conduct Unbecoming an Officer 10.2.1.” Defendant did not specify what it means to violate department policy “Conduct Unbecoming an Officer 10.2.1,” but cited to GCSO policy documents. However, in the Case 1:15-cv-00843-CCE-JEP Document 62 Filed 06/05/17 Page 10 of 19 -11- documents Defendant cited, policy 10.2.1 is not “Conduct Unbecoming an Officer,” but rather “General Regulations.” Defendant has not explained this discrepancy or explained with any specificity what “Conduct Unbecoming an Officer 10.2.1” is. This is directly relevant to this case because “Conduct Unbecoming an Officer 10.2.1” is what Netter was charged with and received discipline for, leading to her initial EEOC complaint. 15. Interrogatory 36 seeks clarification on the policies and procedures in place for disciplining employees who violate department policy “Conduct Unbecoming an Officer 10.2.1.” Defendant did not specify what it means to violate department policy “Conduct Unbecoming an Officer 10.2.1,” but cited to GCSO policy documents. However, in the documents Defendant cited, policy 10.2.1 is not “Conduct Unbecoming an Officer,” but rather “General Regulations.” Defendant has not explained this discrepancy or explained with any specificity what “Conduct Unbecoming an Officer 10.2.1” is. Additionally, Defendant has failed to identify who decides when this policy has been violated. This is directly relevant to this case because “Conduct Unbecoming an Officer 10.2.1” is what Netter was charged with and received discipline for, leading to her initial EEOC complaint. Case 1:15-cv-00843-CCE-JEP Document 62 Filed 06/05/17 Page 11 of 19 -12- 16. Interrogatory 37 seeks an explanation of why Netter was disciplined in a manner that rendered her ineligible to test for promotion while E.U. was not. Defendant has agreed to produce E.U.’s personnel file, but has not yet produced it. Additionally, even if E.U.’s personnel file were produced, that alone would not sufficiently respond to Interrogatory 37 because Defendant has failed to provide a reason that E.U. was not disciplined in the same manner as Netter even though he was charged with a crime, and has failed to indicate who made the decision whether to discipline him and allow him to test for promotion. This is relevant because E.U. is a direct comparator to Netter, being a white officer charged with a crime who was treated differently. 17. Interrogatory 38 seeks an explanation of why Netter was disciplined in a manner that rendered her ineligible to test for promotion while R.R. was not. Defendant has agreed to produce R.R.’s personnel file, but has not yet produced it. Additionally, even if R.R.’s personnel file were produced, that alone would not sufficiently respond to Interrogatory 37 because Defendant has failed to provide a reason that R.R. was not disciplined in the same manner as Netter even though he was charged with a crime, and has failed to indicate who made the decision whether to discipline him and allow him to test for promotion. This is relevant because R.R. is a direct comparator to Netter, being a white officer charged with a crime who was treated differently. Case 1:15-cv-00843-CCE-JEP Document 62 Filed 06/05/17 Page 12 of 19 -13- 18. Interrogatory 39 seeks information on other GCSO employees who were charged with crimes and whether they received discipline similar to Netter. Defendant has objected to providing information on any employees other than three that Netter has listed by name because she had firsthand knowledge of them. However, Defendant has failed to fully respond to Interrogatory 39, which seeks information on more than those three employees. Defendants have unequal access to information, and Interrogatory 39 seeks information about direct comparators to Netter which could prove or disprove her disparate treatment. Additionally, Chief Judge Osteen specifically stated in Hairston that this was relevant to a case of race discrimination against the Sheriff. See 1:15CV1100 at 17-18 (paragraphs 20–37 of the Hairston complaint identify numerous instances where black employees were severely punished for violating policy or being charged with a crime while white employees were punished lightly or not at all for the same or worse offenses). 19. Interrogatory 40 seeks information regarding what policies prohibited Netter from providing evidence to the EEOC. Defendant’s answer cites “North Carolina General Statutes and the Guilford County Sheriff’s Office policies,” but does not specify what statutes or policies it is referring to. This is relevant because Netter’s termination letter specifically stated that she was being fired for providing evidence of discrimination to the EEOC. Case 1:15-cv-00843-CCE-JEP Document 62 Filed 06/05/17 Page 13 of 19 -14- 20. Request for Production of Documents 6 seeks Guilford County Sheriff’s Office Departmental Demographics reports. Defendant has refused to provide Guilford County Sheriff’s Office Departmental Demographics reports, which are pre-existing documents that GCSO produces yearly and keeps on file detailing the demographic breakdown of detention, patrol, and special teams. This information is highly relevant because it shows in hard numbers the stark difference in the demographic makeup between the more favorable patrol and special teams units and the less favorable detention division. Chief Judge Osteen specifically stated in Hairston that this was relevant to a case of race discrimination against the Sheriff. See 1:15CV1100 at 17- 18 (paragraphs 8-12 of the Hairston complaint allege that black employees are almost never allowed to work in patrol and no black officer has been allowed to work on a special team.). 21. Request for Production of Documents 7 seeks group or unit photographs. Defendant has refused to provide group or unit photographs of each patrol unit, detention unit, special unit, and command staff unit taken from 2009 through the present. These photographs are relevant because they show the complete lack of diversity outside of the detention unit, which goes to the pattern of racial bias in employment decisions and Defendant’s intent to discriminate. These pictures are in no way confidential, as they are occasionally posted to Defendant’s website and are available for purchase as part of the GCSO yearbook, which is created annually. Case 1:15-cv-00843-CCE-JEP Document 62 Filed 06/05/17 Page 14 of 19 -15- 22. Request for Production of Documents 8 seeks the employee files, including records of discipline, promotion test applications, and promotions received for several individuals. Defendant has refused to produce the complete employee files, including records of discipline, promotion test applications, and promotions received, for B.V., J.R., C.W., R.M., G.P., D.W., R.J., D.B., J.R., D.M., D.A., L.W., N.Y., J.S., S.C., T.R., and J.G. These employees’ files are relevant because they all are known to fit into one of the following categories: (1) black employees who were passed over for promotion for less-qualified white employees; (2) white employees who were promoted over more-qualified black employees; (3) black employees who were more severely disciplined for law or policy violations than similarly situated white employees; or (4) white employees who were less severely disciplined or not disciplined at all for law or policy violations than similarly situated black employees. Chief Judge Osteen specifically stated in Hairston that all of the examples of past disparate treatment listed in the complaint were relevant to a case of race discrimination against the Sheriff. See 1:15CV1100 at 17-18 (paragraphs 8-37 of the Hairston complaint allege disparate treatment and provide examples in which they cite the above listed employees by name.). 23. Request for Production of Documents 10 seeks documents related to the internal investigation(s) conducted into Netter’s alleged policy violations. Defendant has refused to provide documents related to Defendants’ internal investigations into Netter’s alleged policy violations. These are clearly relevant because Case 1:15-cv-00843-CCE-JEP Document 62 Filed 06/05/17 Page 15 of 19 -16- they resulted in Netter’s discipline, failure to promote, suspension, and termination, which are all at issue here. Defendant claims that these documents are protected by attorney-client privilege and the attorney work product doctrine, but does not provide any further explanation. At no point has Defendant even suggested that an attorney was involved in the internal investigation process. In Defendant’s answers to Interrogatory 27 and Interrogatory 28, Defendant names only Sheriff Barnes, Lieutenant M.H. Carrier, and Lieutenant B.W. Hall as those conducting the investigation, none of whom are attorneys. In those same answers, Defendant cites to policies and procedures to explain how the investigation is conducted. At no point in any of the cited policies or in Defendant’s answers is it mentioned that an attorney becomes involved. As Federal Rule of Evidence 502 and North Carolina Rule of Professional Conduct 1.6 both require that an attorney be involved in order to apply, and Defendant has at no point shown or even hinted that an attorney was involved in these investigations, Defendant should be compelled to provide these documents. 24. Request for Production of Documents 11 seeks notes and other documents regarding Netter’s September 13, 2016, hearing. Defendant has refused to provide notes and documents related to Netter’s September 13, 2016 hearing. These are clearly relevant because that hearing resulted in Netter’s termination, which is at issue here. Defendant claims that these documents are protected by attorney-client privilege and the attorney work product doctrine, but does Case 1:15-cv-00843-CCE-JEP Document 62 Filed 06/05/17 Page 16 of 19 -17- not provide any further explanation. The transcript of that hearing lists as present Sheriff BJ Barnes, Col. R. Powers, Maj. C. Williamson, Capt. M. Carrier, Lt. B. Hall, Capt. J. Rollins, 1st Lt. J. Maynard, and Jem Secor. Defendant as not claimed that any of these individuals is an attorney. As Federal Rule of Evidence 502 and North Carolina Rule of Professional Conduct 1.6 both require that an attorney be involved in order to apply, and Defendant has at no point shown or even hinted that an attorney was ever involved, Defendant should be compelled to provide these documents. Additionally, even if one of these individuals were an attorney, the work product doctrine would not apply to any notes or documents produced by any of the non-attorneys present. Further, the attorney- client privilege would only apply to documents exchanged between the non-attorneys and an attorney, and would not apply to notes or documents kept for personal use or distributed to individuals other than the attorneys. 25. Request for Production of Documents 12 seeks access to employee handbooks or policy manuals from 2014 through 2016. Defendant has refused to provide complete copies of the employee handbooks or policy manuals that were in effect from 2014 through 2016. These are relevant because Netter was terminated disciplined, suspended, and terminated for allegedly violating Defendants’ policies and that defense puts Defendants’ policies at issue. It is necessary that Plaintiff have access to all of the policies and rules to which she may have been subject during her employment. Case 1:15-cv-00843-CCE-JEP Document 62 Filed 06/05/17 Page 17 of 19 -18- WHEREFORE, for the forgoing reasons, Netter requests that the Court compel Defendant to produce the information listed above. Respectfully submitted on this, the 5th day of June, 2017. /s/ WILSON F. FONG /s/ CRAIG HENSEL Attorney for Plaintiff NC State Bar No. 50708 NC State Bar No. 40852 HENSEL LAW, PLLC Post Office Box 39270 Greensboro, North Carolina 27438 Phone: (336) 218-6466 Fax: (336) 218-6467 will.fong@hensellaw.com craig.hensel@hensellaw.com Case 1:15-cv-00843-CCE-JEP Document 62 Filed 06/05/17 Page 18 of 19 -19- CERTIFICATE OF SERVICE I hereby certify that on June 5, 2017, I electronically filed the foregoing Motion to Compel Discovery Responses with the Clerk of Court using the CM/ECF system, which will send notification of filing to the following: James Powell Womble Carlyle Sandridge & Rice, LLP 300 N. Greene St., Ste. 1900 Greensboro, NC 27401 jpowell@wcsr.com Attorney for Defendants Sonny Haynes Womble Carlyle Sandridge & Rice, LLP One West Fourth St. Winston Salem, NC 27101 shaynes@wcsr.com Attorney for Defendants /s/ WILSON F. FONG /s/ CRAIG HENSEL Attorney for Plaintiff NC State Bar No. 50708 NC State Bar No. 40852 HENSEL LAW, PLLC Post Office Box 39270 Greensboro, North Carolina 27438 Phone: (336) 218-6466 Fax: (336) 218-6467 will.fong@hensellaw.com craig.hensel@hensellaw.com Case 1:15-cv-00843-CCE-JEP Document 62 Filed 06/05/17 Page 19 of 19 EXHIBIT 1 DEFENDANT’S RESPONSES TO PLAINTIFF’S SECOND SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS Case 1:15-cv-00843-CCE-JEP Document 62-1 Filed 06/05/17 Page 1 of 24 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA CIVIL CASE NO. 1:15-CV-00843-CCE-JEP CATHERINE D. NETTER, Plaintiff, v. ) ) ) ) ) SHERIFF BJ BARNES, in his official ) and individual capacities, ) ) Defendant. ) ) DEFENDANT'S RESPONSES TO PLAINTIFF'S SECOND SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS Defendant BJ Barnes, by and through counsel, hereby responds to Plaintiffs Second Set of Interrogatories and Request for Production of Documents as follows: INTERROGATORIES Plaintiff served the First Set of Interrogatories and Requests for Production of Documents to Defendant on August 5, 2016, including Interrogatories Nos. 1-13. Accordingly, Defendant Sheriff Barnes' responses herein reflect the correct numbering for the Interrogatories. 14. State Netter's title and describe her job responsibilities while employed by Defendants. RESPONSE: Defendant Sheriff Barnes objects to this interrogatory on the grounds that it is vague and not sufficiently limited in scope because it does not request Plaintiffs title and job responsibilities during a specific time period. Subject to and without waiving these objections, Defendant Sheriff Barnes states that Plaintiff was first appointed by Sheriff Barnes as a Detention Services Officer in the Guilford County Greensboro Detention Center in November 1997. Over the course of Plaintiffs career, she held various jobs within the Sheriffs Office, to include service as a Detention Services Officer I (entry- 1 Case 1:15-cv-00843-CCE-JEP Document 62-1 Filed 06/05/17 Page 2 of 24 level position), Detention Corporal, Background Investigator, and Detention Sergeant. As a Detention Services Officer, Plaintiff was charged primarily with: 1. Ensuring the safety and security of inmate housing units by conducting periodic observation rounds according to North Carolina standards. 2. Coordinating transportation of inmates to scheduled appointments including court appearances, sick -call, counseling, visitation, etc. 3. Monitoring and supervising inmate activities to help eliminate any possible conflicts between inmates. 4. Answering questions regarding facility rules and regulations, inmate charges, bonds, scheduled court dates and general information. 5. Ensuring that inmates have proper cell assignments and accountability of inmate population by conducting headcounts. 6. Ensuring that all equipment, doors, locks, etc. are functioning properly by conducting inspections on a routine basis. In addition to those duties required of every Detention Services Officer working within a detention facility, Plaintiffs assignments as a Detention Corporal and Sergeant, both first-line supervisory positions, also involved: 1. Supervising and overseeing the activities of platoon officers to ensure a smooth working environment by making work assignments and monitoring shift activities such as work times, vacations, sick, and compensatory time. 2. Training new detention officers in all phases of detention work through the field training officer (FTO) program. 3. Reviewing facility incident reports and daily paperwork for accuracy and completeness. 4. Evaluating job performance, investigating complaints and handling disciplinary actions, as needed. 2 Case 1:15-cv-00843-CCE-JEP Document 62-1 Filed 06/05/17 Page 3 of 24 5. Assisting subordinates in unusual or difficult situations such as medical emergencies or violations of policies and procedures. 6. Conducting safety, security, and sanitation inspections of the facility to ensure compliance with local, state, and federal laws. 7. Assuming responsibility for the overall operation of the platoon in the absence of higher authority and performing other duties as specified by superior supervisors. As a Background Investigator for the Sheriffs Office, Plaintiffs job junction was somewhat different than her other assignments, as the primary work setting for this assignment was outside of the detention center. During Plaintiffs term of service as a Background Investigator, she was charged primarily with: 1. Interviewing applicants to ensure they meet minimum requirements of open positions. 2. Investigating personal history (up to 10 years for law enforcement/detention applicants) of applicants to verify they meet state standards required for the position for which they applied. 3. Submitting all typed background information to supervisor for review. 4. Issuing clothing to new personnel, as well as replacement clothing for existing personnel. 5. Serving as liaison to vendors of law enforcement equipment to investigate new products. 6. Serving as a recruiter, providing information to interested parties on open positions and the application process. 3 Case 1:15-cv-00843-CCE-JEP Document 62-1 Filed 06/05/17 Page 4 of 24 15. Describe Netter's job performance and whether it was satisfactory and identify all documents related to Netter's job performance. A responsive answer will include a description of any write-ups, performance coachings, or disciplinary actions; a description of Netter's rating on any performance metrics used by Guilford County Sheriffs Office ("GCSO"); a comparison of Netter's performance metrics to similarly- situated employees; and an identification of any commendations for performance Netter received. RESPONSE: Pursuant to Rule 33(d), Defendant is producing Plaintiffs personnel file which contains information about Plaintiffs job performance. To the extent this interrogatory purports to reqmre Defendant to compare Plaintiffs job performance with the job performance of other officers, Defendant objects on the grounds, inter alia, that it seeks information not related to a claim or defense at issue in this case; that the request is overbroad inasmuch that it would cover a period of 19 years; and the burden and expense to compile the requested information greatly outweighs whatever limited probative value can be derived from the information. 4 Case 1:15-cv-00843-CCE-JEP Document 62-1 Filed 06/05/17 Page 5 of 24 16. Identify all GCSO officers/employees in the patrol division who have reached or exceeded the rank of Master Corporal since Sheriff Barnes took office. For each officer/employee identified, a responsive answer will include their race, current rank, all ranks achieved since attaining Master Corporal, and the date of each promotion. RESPONSE: BJ Barnes has been the elected Sheriff of Guilford County, North Carolina, since 1995 and it is undisputed that Plaintiff held the position of Corporal from 2006 until she was promoted to the position of Sergeant in 20 1 0. Defendant Sheriff Barnes objects to this interrogatory on the grounds, inter alia, that it seeks information not related to a claim or defense at issue in this case; that the request is overbroad inasmuch that it would cover over a twenty (20) year time period; and the burden and expense to compile the requested information greatly outweighs whatever limited probative value can be derived from the information. Defendant Sheriff Barnes further objects to producing information regarding an officer or employee's race, rank, and information regarding the identity of officers who have reached the rank of Master Corporal because it is non-public, confidential information that is protected from disclosure in the absence of a court order under N.C. Gen. Stat.§ 153A-98. 5 Case 1:15-cv-00843-CCE-JEP Document 62-1 Filed 06/05/17 Page 6 of 24 17. Identify all GCSO officers/employees on specialized teams since Sheriff Barnes took office. For each officer/employee identified, a responsive answer will include the teams they were on, their race, their rank, and their dates of service on that team. RESPONSE: Defendant Sheriff Barnes objects to this interrogatory on the grounds, inter alia, that it seeks information not related to a claim or defense at issue in this case, since Plaintiff does not allege that she has ever worked or ever applied to work on a "specialized team"; that the request is overbroad inasmuch that it would cover over a twenty (20) year time period; and the burden and expense to compile the requested information greatly outweighs whatever limited probative value can be derived from the information. Defendant Sheriff Barnes further objects to this interrogatory on the grounds that information regarding an officer's race, rank, and the dates of service in a particular position is non-public, confidential information that is protected from disclosure in the absence of a court order under N.C. Gen. Stat. § 153A-98. 6 Case 1:15-cv-00843-CCE-JEP Document 62-1 Filed 06/05/17 Page 7 of 24 18. Describe how the promotional exam for detention lieutenant is administered and scored. A responsive answer will include a description of the testing process, how different parts of the test are weighted, what the criteria for a passing score is, who administers the test, a description of the testing scale noting what a passing or failing score is, and whether and how the process and criteria differed from year to year during SheriffBames's time in office. RESPONSE: As set forth in the Court's May 2, 2017, Order, Plaintiffs contention is that she was subjected to harsher discipline because of her race or religion in April 2014, which then precluded her from taking the test for promotion in or around November 2014. In her July 28, 2016, deposition testimony, Plaintiff admitted that she did not apply for the test for promotion that was administered in or around November 2014 when she was on active discipline. Plaintiff also admitted that after her one (1) year disciplinary penalty expired in March 2015, Plaintiff applied for and took a test for promotion, passed the written and oral board examinations, and thereafter received notification that she was on a list of officers eligible for promotion to the rank of Lieutenant. Based on the foregoing, Defendant Sheriff Barnes objects to this interrogatory on the grounds, inter alia, that the request is overbroad inasmuch that it would cover over a twenty (20) year time period; and the burden and expense to compile the requested information greatly outweighs whatever limited probative value can be derived from the information. Subject to and without waiving these objections, during the relevant time period in 20 14 and 20 15, the promotional process for the rank of Detention Lieutenant was held annually. 7 Case 1:15-cv-00843-CCE-JEP Document 62-1 Filed 06/05/17 Page 8 of 24 The promotional process held in 2014, to generate the list of promotional candidates for 2015, consisted of a written examination and an oral review board, with the top ten (10) scoring candidates from the written examination progressing to the oral review board. For the year 2014, as less than ten (10) applicants applied for promotion to the rank of Detention Lieutenant, all candidates participated in the oral review board, in addition to taking the written test. The oral review board was comprised of members of other agencies of the rank of Lieutenant of higher, overseen by a member of the Sheriffs command staff of the rank of Lieutenant or higher. Scores between the written examination and assessments of performance by members of the oral review board were then averaged, and the final scores reported to the Sheriff. A minimum combined score of eighty (80) percent was required between the written assessment and the oral board in order for a candidate to be eligible for promotion to Detention Lieutenant. All scoring of written tests and tabulation of performance on oral review boards was performed by Developmental Associates, Inc. No GCSO employee was involved in the grading of tested materials to determine candidate scores as part of the promotional process. The Detention Lieutenant promotional process held in 2015, to generate the list of promotional candidates for 2016, consisted of assessment center exercises overseen by Developmental Associates, Inc. Each assessment center exercise was graded by a minimum of three assessors, each from another local law enforcement agency, all of whom held the rank of Lieutenant or higher. These assessment centers put candidates through a series of individual and group exercises designed to simulate the conditions of a given job in order to determine whether the candidate possessed the skills and abilities necessary to perform the job for which the candidate was seeking promotion. To be eligible for promotion to Detention Lieutenant, candidates must achieve a passing score on each assessment center exercise. Candidates were placed on the promotion list by the total combined score received on all assessment center exercises. A final listing of all successful candidates, as determined by Developmental Associates, Inc. from its 8 Case 1:15-cv-00843-CCE-JEP Document 62-1 Filed 06/05/17 Page 9 of 24 tabulation of scores was then submitted to the GCSO's Personnel and Training Division, which reported the successful candidates to the Sheriff, in ranked order by total score. 9 Case 1:15-cv-00843-CCE-JEP Document 62-1 Filed 06/05/17 Page 10 of 24 19. Describe the process used by the Sheriff and GCSO officer overseeing the promotional exam for detention lieutenant to pick candidates to promote from the list of those who pass. A responsive answer will include an explanation of the criteria used to determine who among those passing the test should be promoted and an identification of all documentation that reflects those criteria. RESPONSE: In her July 28, 2016, deposition testimony, Plaintiff admitted that she did not apply for the test for promotion that was administered in or around November 2014 when she was on active discipline. Plaintiff also admitted that after her one ( 1) year disciplinary penalty expired in March 2015, Plaintiff applied for and took a test for promotion, passed the written and oral board examinations, and thereafter received notification that she was on a list of officers eligible for promotion to the rank of Lieutenant. Defendant Sheriff Barnes objects to this interrogatory on the grounds, inter alia, that the request is overbroad inasmuch that it would cover over a twenty (20) year time period; and the burden and expense to compile the requested information greatly outweighs whatever limited probative value can be derived from the information. Subject to and without waiving these objections, during the relevant time period in 2014-2016, promotional decisions were made by the Sheriff from a list of eligible candidates maintained by the Lieutenant of the GCSO's Personnel and Training Division. Throughout this time, as positions were vacated that required promotion to the rank of Detention Lieutenant, the Sheriff made promotions from the list of eligible candidates based on each candidate's overall score from the promotional testing process (as derived from the process described in the response provided to Plaintiffs Interrogatory 18) as well as a determination by the Sheriff of the individual suitability of each of the top- scoring promotional candidates for the vacant position in question. This determination was often, but was not always, after consultation with members of the potential 10 Case 1:15-cv-00843-CCE-JEP Document 62-1 Filed 06/05/17 Page 11 of 24 promotional candidate's supervisory chain of command. Upon information and belief, no written records exist documenting these consultations. The Sheriff is the final decision- maker as to all promotions of eligible employees to the rank of Detention Lieutenant. 11 Case 1:15-cv-00843-CCE-JEP Document 62-1 Filed 06/05/17 Page 12 of 24 20. Describe the process by which a detention officer transfers to patrol. A responsive answer will include a description of any prerequisites or requirements, the application process, what criteria Command uses to choose among applicants, the training process, any background checks an applicant undergoes, an indication of which parts of the process are required by law and which parts are unique to Sheriff Barnes' administration and whether and how the process and criteria differed from year to year during Sheriff Barnes's time in office. RESPONSE: Defendant Sheriff Barnes objects to this interrogatory on the grounds, inter alia, that it seeks information not related to a claim or defense at issue in this case, since Plaintiff does not allege that she has ever sought or applied to work in the patrol division; that the request is overbroad inasmuch that it would cover over a twenty (20) year time period; and the burden and expense to compile the requested information greatly outweighs whatever limited probative value can be derived from the information. 12 Case 1:15-cv-00843-CCE-JEP Document 62-1 Filed 06/05/17 Page 13 of 24 21. Describe the process used by the Sheriff and GCSO officer overseeing the promotional exam from detention to patrol to pick candidates to promote from the list of those who pass. A responsive answer will include an explanation of the criteria used to determine who among those passing the test should be promoted and an identification of all documentation that reflects those criteria and whether and how the process and criteria differed from year to year during Sheriff Barnes's time in office. RESPONSE: Defendant Sheriff Barnes objects to this interrogatory on the grounds, inter alia, that it seeks information not related to a claim or defense at issue in this case, since Plaintiff does not allege that she has ever sought or applied to work in the patrol division; that the request is overbroad inasmuch as it would cover over a twenty (20) year time period; and the burden and expense to compile the requested information greatly outweighs whatever limited probative value can be derived from the information. 13 Case 1:15-cv-00843-CCE-JEP Document 62-1 Filed 06/05/17 Page 14 of 24 22. Identify all individuals who have taken any promotional exam since Sheriff Barnes took office, and for each individual identified, state whether they passed or failed the test. A responsive answer will include what position each individual tested for, their race, their position at the time of the test, whether or not the they were promoted, and an identification of all documents that reflect the names of test takers and test results. RESPONSE: In his September 20, 2016, responses to Plaintiffs Interrogatories No. 9 and No. 10, Defendant Sheriff Barnes agreed to produce a list containing the name, race, gender, and date of test for each officer who tested for promotion during the time period of January 1, 2009, through December 31, 2014, which information was derived from confidential personnel records and which Defendant agreed to produce upon the entry by the Court of a Protective Order. In her July 28, 2016, deposition testimony, Plaintiff admitted that she did not apply for the test for promotion that was administered in or around November 2014 when she was on active discipline. Plaintiff also admitted that after her one ( 1) year disciplinary penalty expired in March 2015, Plaintiff applied for and took a test for promotion, passed the written and oral board examinations, and thereafter received notification that she was on a list of officers eligible for promotion to the rank of Lieutenant. Except for the list Defendant Sheriff Barnes agreed to produce in response to Interrogatories No. 9 and No. 10, Defendant Sheriff Barnes objects to this interrogatory on the grounds, inter alia, that the information sought is not relevant; that the request is overbroad inasmuch that it would cover over a twenty (20) year time period; and the burden and expense to compile the requested information greatly outweighs whatever limited probative value can be derived from the information. 14 Case 1:15-cv-00843-CCE-JEP Document 62-1 Filed 06/05/17 Page 15 of 24 23. Identify all employees hired into the patrol division without current Basic Law Enforcement Training ("BLET") at the time of their hire (what is known within GCSO as being hired "off the street") since Sheriff Barnes took office. For each individual identified, a responsive answer will include their date of hire, the position they were hired for, the date that GCSO provided or scheduled their BLET, and their race. RESPONSE: Defendant Sheriff Barnes objects to this interrogatory on the grounds, inter alia, that it seeks information not related to a claim or defense at issue in this case, since Plaintiff does not allege that she has ever sought or applied to work in the patrol division; that the request is overbroad inasmuch that it would cover over a twenty (20) year time period; and the burden and expense to compile the requested information greatly outweighs whatever limited probative value can be derived from the information. Defendant Sheriff Barnes further objects to this interrogatory on the grounds that the information sought regarding an officer's training and credentials, as well as the officer's race, is non-public, confidential information that is protected from disclosure in the absence of a court order under N.C. Gen. Stat. § 153A-98. 15 Case 1:15-cv-00843-CCE-JEP Document 62-1 Filed 06/05/17 Page 16 of 24 24. Identify all employees transferred from detention to patrol who did not have current BLET at the time of their transfer since Sheriff Barnes took office. For each individual identified, a responsive answer will include the date their transfer was approved, their date of transfer, the position to which they were transferred, the date that GCSO provided or scheduled their BLET, and their race. RESPONSE: Defendant Sheriff Barnes objects to this interrogatory on the grounds, inter alia, that it seeks information not related to a claim or defense at issue in this case, since Plaintiff does not allege that she has ever sought or applied to work in the patrol division; that the request is overbroad inasmuch that it would cover over a twenty (20) year time period; and the burden and expense to compile the requested information greatly outweighs whatever limited probative value can be derived from the information. Defendant Sheriff Barnes further objects to this interrogatory on the grounds that the information sought regarding an officer's training and credentials, as well as the officer's race, is non-public, confidential information that is protected from disclosure in the absence of a court order under N.C. Gen. Stat. § 153A-98. 16 Case 1:15-cv-00843-CCE-JEP Document 62-1 Filed 06/05/17 Page 17 of 24 25. Identify all detention officers promoted to a patrol Master Corporal or Sergeant since Sheriff Barnes took office. A responsive answer will include each individual's name, their race, their date of promotion, and the date of their Field Training Officer Certification, if any. RESPONSE: Defendant Sheriff Barnes objects to this interrogatory on the grounds, inter alia, that it seeks information not related to a claim or defense at issue in this case, since Plaintiff does not allege that she has ever sought or applied to work in the patrol division; that the request is overbroad inasmuch that it would cover over a twenty (20) year time period; and the burden and expense to compile the requested information greatly outweighs whatever limited probative value can be derived from the information. Defendant Sheriff Barnes further objects to this interrogatory on the grounds that the information sought regarding an officer's race and training credentials is non-public, confidential information that is protected from disclosure in the absence of a court order under N.C. Gen. Stat. § 153A-98. 17 Case 1:15-cv-00843-CCE-JEP Document 62-1 Filed 06/05/17 Page 18 of 24 REQUESTS FOR PRODUCTION OF DOCUMENTS Plaintiff served the First Set of Interrogatories and Requests for Production of Documents to Defendant on August 5, 2016, including Requests for Production of Documents Nos. 1-4. Accordingly, Defendant Sheriff Barnes' responses herein reflect the correct numbering for the Requests for Production of Documents. 5. Produce all documents identified or referenced in any response to any interrogatory. RESPONSE: Defendant Sheriff Barnes incorporates ·his objections to Plaintiffs Interrogatories into this response as if set forth fully herein. 6. Produce all Guilford County Sheriffs Office Departmental Demographics reports from the time Sheriff Barnes took office through the present. RESPONSE: Defendant Sheriff Barnes objects to this request on the grounds that the information sought is not relevant to a claim or defense at issue in this single-plaintiff, disparate treatment case. The demographics of the Guilford County Sheriffs Office not only fail to establish evidence of discrimination as a matter of law, but are irrelevant to Plaintiffs allegations that she was treated in a discriminatory manner. Defendant Sheriff Barnes further objects to this request on the grounds that the request is overbroad inasmuch that it would cover over a twenty (20) year time period; and the burden and expense to compile the requested information greatly outweighs whatever limited probative value can be derived from the information. 18 Case 1:15-cv-00843-CCE-JEP Document 62-1 Filed 06/05/17 Page 19 of 24 7. Produce all group or unit photographs of each patrol unit, detention unit, special unit, and command staff unit taken from 2009 through the present in a manner that will enable the photographs to be identified by department/unit/team and year. RESPONSE: Defendant Sheriff Barnes objects to this request on the grounds that the information sought is not relevant to a claim or defense at issue in this single-plaintiff, disparate treatment case. The demographics of the Guilford County Sheriffs Office not only fail to establish evidence of discrimination as a matter of law, but are irrelevant to Plaintiffs allegations that she was treated in a discriminatory manner. Defendant Sheriff Barnes further objects to this request on the grounds that the request is overbroad; and the burden and expense to compile the requested information greatly outweighs whatever limited probative value can be derived from the information. 19 Case 1:15-cv-00843-CCE-JEP Document 62-1 Filed 06/05/17 Page 20 of 24 8. Produce the complete employee files, including records of discipline, promotion test applications, and promotions received, for the following individuals: 8.1 B.V. 8.2 J.R. 8.3 C.W. 8.4 R.M. 8.5 G.P. 8.6 D.W. 8.7 R.J. 8.8 D.B. 8.9 J.R. 8.10 D.M. 8.11 D.A. 8.12 L.W. 8.13 N.Y. 8.14 J.S. 8.15 S.C. 8.16 E.U. 8.17 R.R. 8.18 T.R. 8.19 J.G. 8.20 F.H. 20 Case 1:15-cv-00843-CCE-JEP Document 62-1 Filed 06/05/17 Page 21 of 24 RESPONSE: Defendant Sheriff Barnes objects to this request on the grounds that it is overbroad, unduly burdensome, and not proportionate to the needs of the case because Plaintiff has only identified three (3) officers that she alleges are comparators: E.U., R.R., and F .H. The 17 other officers whose personnel files are requested are not comparators and the information in their personnel files is not relevant to a claim or defense at issue in this case. Defendant Sheriff Barnes agrees to produce (i) the personnel files of E.U, R.R., and F.H.; (ii) their disciplinary records; and (iii) records of their promotions. Information about promotion testing of these officers during the period of January 1, 2009, through December 31, 2014, is contained in list identified in response to Interrogatories Nos. 9, 10, and 22. All such information will be produced subject to the entry of a Protective Order as required by N.C. Gen. Stat. § 153A-98. Except as noted, Defendant Sheriff Barnes objects to this request. 21 Case 1:15-cv-00843-CCE-JEP Document 62-1 Filed 06/05/17 Page 22 of 24 This the 12th day of May, 20 1 7. WOMBLE CARLYLE SANDRIDGE & RICE, LLP -=1 h ~/~ James Z Powell V N.C. State Bar No. 12521 300 N. Greene Street, Suite 1900 Greensboro, NC 27401 Telephone: (336) 574-8081 Facsimile: (336) 574-4561 Email: jpowell@wcsr.com Sonny S. Haynes N.C. State Bar No. 41303 One West Fourth Street Winston Salem, NC 27101 Telephone: (336) 721-3632 Facsimile: (336) 726-2227 Email: shaynes@wcsr .com Attorneys for Defendant Sheriff BJ Barnes 22 Case 1:15-cv-00843-CCE-JEP Document 62-1 Filed 06/05/17 Page 23 of 24 CERTIFICATE OF SERVICE I hereby certify that on this day, I have served the foregoing DEFENDANT'S RESPONSES TO PLAINTIFF'S SECOND SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS by electronic mail and by placing a copy of the same in the United States Mail, properly addressed and with the correct amount of postage affixed thereto: Wilson F. F ong Craig Hensel Hensel Law, PLLC P.O. Box 39270 Greensboro, NC 27438 Will.fong@hensellaw.com Craig.hensel@hensellaw .com This the 12th day of May, 2017. - /=; j ~/- Sonny$. Haynes r 23 N.C. State Bar No. 41303 One West Fourth Street Winston Salem, NC 27101 Telephone: (336) 721-3632 Facsimile: (336) 726-2227 Email: shaynes@wcsr.com Attorney for Defendant Sheriff BJ Barnes Case 1:15-cv-00843-CCE-JEP Document 62-1 Filed 06/05/17 Page 24 of 24 EXHIBIT 2 PLAINTIFF’S MAY 15, 2017, REQUEST FOR SUPPLEMENTATION Case 1:15-cv-00843-CCE-JEP Document 62-2 Filed 06/05/17 Page 1 of 4 http://www.hensellaw.com | Phone (336) 218-6466 | Fax (336) 218-6467 Post Office Box 39270 Greensboro, North Carolina 27438 May 15, 2017 Via Email James Powell jpowell@wcsr.com Sonny Haynes shaynes@wcsr .com Will Fong will.fong@hensellaw.com (336) 218-6466 Re: Catherine Netter v. Sheriff BJ Barnes Civil Case No. 1:15-CV-00843-CCE-JEP Request for Supplementation Dear Mr. Powell and Ms. Haynes I am in receipt of your discovery responses dated May 12, 2017, and I write to request that you supplement Defendant’s responses to several requests. Interrogatory 15: You provided no answer to the question asked beyond citing to a personnel file which you did not produce. An employee’s disciplinary and performance history are among the most basically relevant facts in and employment case. Furthermore, it is difficult to believe that a Defendant is unable to describe his own employee performance metric without undue burden. Finally, we find it unlikely that Netter’s personnel file (which you have not yet produced) will contain a comparison between her and similarly-situated employees. Please produce Netter’s personnel file and fully respond to this Interrogatory. Interrogatory 16: Defendant’s promotion practices over time—especially with regards to race— are critically relevant to this case, which involves a failure to promote based on race and alleges an ongoing, decades-long practice of discrimination in promotions based on race. Furthermore, Defendant will suffer no undue burden, as Defendant is known to keep records the information sought. Please respond fully to this Interrogatory. Interrogatory 17: Once again, Defendant’s promotion practices are relevant to this case, which involves a failure to promote. Furthermore, Defendant will suffer no undue burden, as Defendant is known to keep records the information sought in orderly spreadsheets which are produced yearly. Please respond fully to this Interrogatory. Interrogatory 19: Interrogatory 19 asks for an explanation and description of criteria Defendant used to pick a candidate from among those passing. Defendant’s answer was that he made a determination of their “individual suitability.” This is vague and nonresponsive. Describe and explain what “individual suitability” is and, if multiple criteria are used to determine “individual suitability,” describe and explain those criteria. Case 1:15-cv-00843-CCE-JEP Document 62-2 Filed 06/05/17 Page 2 of 4 RECIPIENT May 15, 2017 Page 2 of 3 Interrogatory 20: Defendant’s answer is a pro forma objection and is insufficient. Defendant’s promotion practices are relevant to this case, which is a case about failure to promote. Furthermore, Plaintiff did, in fact, apply for a patrol position at least twice in her career with the Guilford County Sheriff’s Office. Further, Plaintiff alleges an ongoing practice of race discrimination by Defendant, part of which involves the transfer process between Detention and Patrol. Please provide the requested description of the transfer process. Interrogatory 21: Defendant’s answer is a pro forma objection and is insufficient. Defendant’s promotion practices are relevant to this case, which is a case about failure to promote. Furthermore, Plaintiff did, in fact, apply for a patrol position at least twice in her career with the Guilford County Sheriff’s office. Further, Plaintiff alleges an ongoing practice of race discrimination by Defendant, part of which involves the transfer process between Detention and Patrol. Please provide the requested description of the selection process. Interrogatory 22: Please reproduce the list mentioned in Defendant’s response. Please ensure that the list indicates (in addition to name, race, gender, and date of test) what position each individual tested for, whether they passed or failed the test, and whether or not they were promoted. This information is relevant, as Defendant’s promotion practices over time—especially with regards to race—are critically relevant to this case, which involves a failure to promote based on race and alleges an ongoing, decades-long practice of discrimination in promotions based on race. Interrogatory 23: Defendant’s hiring practices are relevant to this case as Defendant’s personnel decisions are alleged to be discriminatory. Additionally, Defendant will not suffer any undue burden, as Defendant keeps records regarding who was hired prior to BLET. Interrogatory 24: Defendant’s answer is insufficient. Defendant’s promotion practices are relevant to this case, which is a case about failure to promote. Furthermore, Plaintiff did, in fact, apply for a patrol position at least twice in her career with the Guilford County Sheriff’s office. Further, this matter regards an ongoing practice of discrimination based on race, including hiring only non-black officers without BLET for patrol. Additionally, Defendant will not suffer any undue burden, as Defendant keeps records regarding transfers and who has prior BLET. Please provide the requested information. Interrogatory 25: Defendant’s promotion practices are relevant to this case, which is a case about failure to promote. This matter involves allegations of an ongoing practice of race discrimination which includes the fact that very few black officers have ever reached Master Corporal and none have surpassed it in Barnes’s tenure of over 20 years at Guilford County Sherriff’s Office. Case 1:15-cv-00843-CCE-JEP Document 62-2 Filed 06/05/17 Page 3 of 4 RECIPIENT May 15, 2017 Page 3 of 3 Furthermore, Defendant will suffer no undue burden, as Defendant is known to keep records the information sought. Please fully respond to this Interrogatory. Request for Production of Documents 6: Demographics, particularly statistical evidence produced over a long period of time showing a disproportionate preference for one race over another, are extremely relevant to a case of race discrimination. Moreover, Defendant would suffer no undue burden, as Defendant produces a spreadsheet clearly titled “Guilford County Sheriff’s Office Departmental Demographics” every year and all Defendant would have to do to satisfy this request would be to make copies of that document. Please produce all documents requested. Request for Production of Documents 7: Demographics, particularly the stark images of the lack of diversity in various portions of Defendant’s organization, are extremely relevant to a case of race discrimination. Moreover, Defendant would suffer no undue burden, as Defendant regularly produces and keeps such pictures. Please produce all documents requested. Request for Production of Documents 8: All of the listed employees are comparators. Each is either a white employee who committed an infraction and was disciplined lightly or not at all or a black employee who committed an infraction and was disciplined heavily. The disparate treatment of white and black employees with regard to discipline is the central issue of this case, which makes this information relevant and discoverable. Please provide the requested documents. Please respond to these requests for supplement on or before May 26, 2017. Sincerely, /s/ Wilson F. Fong CC: Craig hensel Case 1:15-cv-00843-CCE-JEP Document 62-2 Filed 06/05/17 Page 4 of 4 EXHIBIT 3 DEFENDANT’S RESPONSES TO PLAINTIFF’S THIRD SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS AND FIRST SET OF REQUESTS FOR ADMISSION Case 1:15-cv-00843-CCE-JEP Document 62-3 Filed 06/05/17 Page 1 of 22 Ii I I] f,a\1fiIIlle U kLl CATHERINE D. NETTER, Plaintiff, SHERIFF BJ BARNES, in his official and personal capacities, Defendant. Defendant BJ Barnes, by and through counsel, hereby responds to Plaintiff's Third Set of Interrogatories and Request for Production of Documents and Plaintiffs First Set of Requests for Admission as follows: S Plaintiff served the Second Set of Interrogatories and Requests for Production of Documents to Defendant on January 23, 2017, including Interrogatories Nos, 14-25. Accordingly, Defendant Sheriff Barnes' responses herein reflect the correct numbering for the Interrogatories. 26. Describe the location and security of personnel files from 2014 through 2015 A responsive answer w-ill-inctude-a- description --- of each location where - files were kept, both electronically and physically, who had access to each location, what security was in place to prevent unauthorized access, and when and how any changes to this filing system occurred. Case 1:15-cv-00843-CCE-JEP Document 62-3 Filed 06/05/17 Page 2 of 22 The personnel files of detention officers, or subsets of the personnel files, are made and maintained in the normal course of business in the following locations: 1) A complete master copy of the personnel files of detention officers are kept at the Guilford County Sheriff's Office, 400 West Washington Street, Greensboro, North Carolina 27401, under lock and key and electronically with password protection; 2) A subset of the personnel files of detention officers that primarily includes wage, withholding, and dependent information, medical files, and benefits information is maintained at the Guilford County Human Resources Department, 201 South Greene Street, Greensboro, NC 27401; 3) A subset of the personnel files of detention officers assigned to the Greensboro Detention Facility, including disciplinary files, requests for leave, and evaluations are kept under lock and key with shift supervisor access to the keys at the Greensboro Detention Facility, 201 South Edgeworth Street, Greensboro, North Carolina 27401; and 4) A subset of the personnel files of detention officers assigned to the High Point Detention Facility, including disciplinary files, requests for leave, and evaluations are kept under lock and key with shift supervisor access to the keys at the High Point Detention Facility, 507 East Green Drive, High Point, North Carolina 27260. 5) A subset of the personnel files of detention officers assigned to the Guilford County Prison Farm, including disciplinary files, requests for leave, and evaluations were kept in a locked file cabinet at the Guilford County Sheriffs Office Prison Farm, 7315 2 Case 1:15-cv-00843-CCE-JEP Document 62-3 Filed 06/05/17 Page 3 of 22 Howerton Road, Elon, North Carolina 27244, during 2014 and until on or about June 30, 2015, when the farm ceased being used as a detention facility. During that time period, the Detention Captain and Detention Lieutenant assigned to the prison farm had access to the keys to this cabinet. Defendant Sheriff Barnes objects to this interrogatory as irrelevant, overbroad, disproportionate to the needs of the case and unduly burdensome to the extent it requests information beyond what has been provided in this response. 27. Describe the internal investigation process of GCSO Professional Standards. A responsive answer will identify all employees involved, including Lieutenant B.W. Hall and Sheriff Barnes, what each of their roles are, who decides when an investigation is necessary, and who decides what action to take based on an investigation. As set forth in the Court's May 2, 2017, Order, Plaintiffs contention is that she was subjected to harsher discipline because of her race or religion in April 2014. Plaintiff was granted leave by the Court to file a Supplement to her First Amended Complaint, in which Plaintiff alleged claims based on her September 13, 2016, termination from employment. Based on the foregoing, Defendant Sheriff Barnes objects to this interrogatory on the grounds that it is not sufficiently limited in time and scope. Subject to and without waiving these objections, Defendant Sheriff Barnes states that the internal investigation process of the GCSO Professional Standards Division in 3 Case 1:15-cv-00843-CCE-JEP Document 62-3 Filed 06/05/17 Page 4 of 22 place in 2014 and 2016 is outlined in Chapter 10 of the Guilford County Sheriff's Department Policy and Procedures Manual, including Policy 10.4.5 Administrative Investigative Procedures, Policy 10.4.6 Completed Investigations, Policy 10.5 Disciplinary Procedures, Policy 10.5.1 Levels of Discipline, and Policy 10.6 Hearing Before the Sheriff. If Lieutenant B.W. Hall is the investigator assigned, he follows the policies and procedures outlined in Chapter 10. Sheriff Barnes makes the final decision regarding disciplinary action. Pursuant to Rule 33(d), Defendant is producing as GCSO 001045 through GCSO 001095, Chapter 10 of the Policy and Procedures Manual in effect in 2014; and as GCSO 001096 through GCSO 001145, Chapter 10 of the Policy and Procedures Manual in effect in 2016. 28. Describe the process GCSO Professional Standards used in its investigation of Netter. A responsive answer will identify all employees involved, including Lieutenant B.W. Hall and Sheriff Barnes, what each of their roles were, who decided an investigation was necessary, and who decided what action to take based on an investigation. As set forth in the Court's May 2, 2017, Order, Plaintiff's contention is that she was subjected to harsher discipline because of her race or religion in April 2014. Plaintiff was granted leave by the Court to file a Supplement to her First Amended Complaint, in which Plaintiff alleged claims based on her September 13, 2016, termination from employment. 4 Case 1:15-cv-00843-CCE-JEP Document 62-3 Filed 06/05/17 Page 5 of 22 Based on the foregoing, Defendant Sheriff Barnes objects to this interrogatory on the grounds that it is vague because it does not specifically identify the investigation to which it refers. Subject to and without waiving this objection, Defendant Sheriff Barnes states that, in 2014, Lieutenant M.H. Carrier of the Internal Affairs Section conducted an investigation based on the Statement of Charges (PSO# 2014 — 0159) against Plaintiff Netter. Lt. Carrier followed the policies and procedures set forth in Chapter 10 of the Guilford County Sheriffs Department Policy and Procedures Manual. Sheriff Barnes made the final decision regarding the disciplinary action. In 2016, Lieutenant B.W. Hall of Professional Standards (formerly, "Internal Affairs Section") conducted an investigation based on the Statement of Charges (PSO# 2016 — 0516) against Plaintiff Netter. Lt. Hall followed the policies and procedures set forth in Chapter 10 of the Guilford County Sheriffs Department Policy and Procedures Manual. Sheriff Barnes made the final decision regarding Plaintiff's termination. Defendant also incorporates by reference its response to Interrogatory No. 27, including documents identified therein. 29. Explain why Captain Rollins issued a directive regarding personnel files on August 1, 2016. A responsive answer will identify documents related to the reasoning for, and issuance of, this directive. Captain Rollins issued a directive regarding personnel files on August 1, 2016, to increase the security of personnel files because it came to the attention of the Sheriffs 5 Case 1:15-cv-00843-CCE-JEP Document 62-3 Filed 06/05/17 Page 6 of 22 Office that Plaintiff Netter had illegally accessed confidential personnel files without authorization to be used for her own personal reasons unrelated to her official duties as an officer of the Sheriffs Office. Additionally, it came to the attention of the Sheriffs Office that Plaintiff Netter acknowledged receiving confidential personnel documents from another Sheriffs Office employee without authorization to be used for Plaintiff Netter's own personal reasons unrelated to her official duties as an officer of the Sheriffs 30. Describe specifically why Sheriff Barnes terminated Netter and identify all documents that evidence or refute this response. Pursuant to Rule 33(d), Defendant Sheriff Barnes directs Plaintiff to the Statement of Charges (PSO# 2016 — 0516) dated September 6, 2016, which Plaintiff filed as an exhibit to Plaintiffs Supplement to the First Amended Complaint on April 13, 2017. [D.E. 57-1, pp. 2-4]. Defendant objects to the extent this Interrogatory purports to require Defendant to identify documents that might "refute" reasons for Plaintiffs termination on grounds that the request is vague, ambiguous, and requires undue speculation. Furthermore, as part of the due process afforded to Plaintiff during the disciplinary proceedings, she was entitled to submit documents refuting her guilt but did not (or could not) do so. 31. State Netter's wages, including the value of any benefits, from 2014 through her termination. A responsive answer will include how much she was paid, describe what benefits she received, describe for what benefits she would have been Case 1:15-cv-00843-CCE-JEP Document 62-3 Filed 06/05/17 Page 7 of 22 eligible had she not been terminated, and identify documents evidencing Netter's wages and benefits. Plaintiff Netter's annual salary from 2014 through her termination was as follows: 3/23/2014: $53,213.52 7/13/2014: $55,322.03 7/13/2014: $56,428.44 4/05/2015: $57,666.55 1/10/2016: $58,962.10 1/24/2016: $60,762.16 Pursuant to Section 6.4 and 6.4.1 of the Guilford County Sheriffs Department Policy and Procedures Manual, employees of the Guilford County Sheriffs Office receive the same benefits as other employees of Guilford County. Pursuant to Rule 33(d), Defendant is producing Section 6.4 and 6.4.1 of the Policy and Procedures Manual as GCSO 001146; and information regarding Plaintiff Netter's benefits from 2014 through her termination as GCSO 001147 through GCSO 001333. 32. State the wages for a Detention Sergeant, including benefits, from 2014 through 2016. A responsive answer will note any changes in the wage rate for a ---Detention Sergeant-that occurred during-that tulle and identify any documents--evidencing wages and benefits. 7 Case 1:15-cv-00843-CCE-JEP Document 62-3 Filed 06/05/17 Page 8 of 22 RESPONSE: The salary range data for a Detention Sergeant from 2014 through 2016 is as follows: Guilford Job Title Salary FLSA Annual Annual Annual County Grade Status Minimum Midpoint Maximum Job Code 6053 Detention Serv. 57 Non- 55,322.00 74,684.50 94,047.00 Supv. I exempt (Sergeant) follows: Guilford Job Title Salary FLSA Annual Annual Annual County Grade Status Minimum Midpoint Maximum Job Code 6056 Detention Serv. 58 Exempt 58,088.00 78,418.50 98,749.00 Lieutenant) See documents identified in Interrogatory No. 31 for information on benefits. 0 Case 1:15-cv-00843-CCE-JEP Document 62-3 Filed 06/05/17 Page 9 of 22 34, Identify and describe the policies and procedures in place for disciplining GCSO employees when they are charged with and/or convicted of a crime. A responsive answer will identify who makes the decision to discipline an employee when they are charged with and/or convicted of a crime and identify all documents explaining these policies and procedures. As set forth in the Court's May 2, 2017, Order, Plaintiffs contention is that she was subjected to harsher discipline because of her race or religion in April 2014. Based on the foregoing, Defendant Sheriff Barnes objects to this interrogatory on the grounds that it is not sufficiently limited in time and scope. Subject to and without waiving this objection, individuals who are charged with and/or convicted of a crime are investigated for a violation of Guilford County Sheriffs Department Policy 10.2.2 Conformance to the Law. In or around July 2014, there was an official change in policy such that an internal investigation may proceed, and disciplinary may be imposed, before the criminal case against the employee is adjudicated. Plaintiff Netter was initially informed on March 14, 2014, that an internal investigation was opened based on potential violations of Policy 10.2 Code of Conduct and 10.2.2 Conformance to the Law. However, the April 21, 2014, Notice of Disciplinary Action Recommended did not involve violation of Policy 10.2.2 Conformance to the Law. Plaintiff Netter's second-level reprimand was not imposed based on a violation of Policy 10.2.2 Conformance to the Law. 9 Case 1:15-cv-00843-CCE-JEP Document 62-3 Filed 06/05/17 Page 10 of 22 Defendant Sheriff Barnes states that the policies and procedures in place in 2014 for disciplining GCSO employees when they were charged with and/or convicted of a crime are outlined in Chapter 10 of the Guilford County Sheriffs Department Policy and Procedures Manual, including Policy 10.4.2 Inquiries and Complaints, Policy 10.4.5 Administrative Investigative Procedures, Policy 10.4.6 Completed Investigations, Policy 10.5 Disciplinary Procedures, Policy 10.5.1 Levels of Discipline, and Policy 10.6 Hearing Before the Sheriff. Pursuant to Rule 33(d), Defendant is also producing as GCSO 001334 through GCSO 001335, a July 2, 2014 memorandum from Captain Carrier to Sheriff BJ Barnes regarding the change in policy with regard to allegations involving Conformance to the Law violation. 35. Identify and describe the policies and procedures in place for disciplining GCSO employees for violating department policy "Conduct Unbecoming an Officer 10.2.1." A responsive answer will identify who decides when this policy has been violated, describe what it means to violate this policy, and identify all documents explaining this policy and these procedures. I` i As set forth in the Court's May 2, 2017, Order, Plaintiffs contention is that she was subjected to harsher discipline because of her race or religion in April 2014. Based on the foregoing, Defendant Sheriff Barnes objects to this interrogatory on the grounds that it is not sufficiently limited in time and scope. 10 Case 1:15-cv-00843-CCE-JEP Document 62-3 Filed 06/05/17 Page 11 of 22 Subject to and without waiving these objections, Defendant Sheriff Barnes states that the policies and procedures in place in 2014 for disciplining GCSO employees for violating department policy "Conduct Unbecoming an Officer 10.2.1" are outlined in Chapter 10 of the Guilford County Sheriffs Department Policy and Procedures Manual, including Policy 10.4.2 Inquiries and Complaints, Policy 10.4.5 Administrative Investigative Procedures, Policy 10.4.6 Completed Investigations, Policy 10.5 Disciplinary Procedures, Policy 10.5.1 Levels of Discipline, and Policy 10.6 Hearing Before the Sheriff. 36. Identify and describe the policies and procedures in place for disciplining GCSO employees for violating department policy "General Code of Conduct 10.2." A responsive answer will identify who decides when this policy has been violated, describe what it means to violate this policy, and identify all documents explaining this policy and these procedures. As set forth in the Court's May 2, 2017, Order, Plaintiffs contention is that she was subjected to harsher discipline because of her race or religion in April 2014. Based on the foregoing, Defendant Sheriff Barnes objects to this interrogatory on the grounds that it is not sufficiently limited in time and scope. Subject to and without waiving these objections, Defendant Sheriff Barnes states that the policies and procedures in place in 2014 for disciplining GCSO employees for violating department policy "General Code of Conduct 10.2" are outlined in Chapter 10 of the Guilford County Sheriffs Department Policy and Procedures Manual, including 11 Case 1:15-cv-00843-CCE-JEP Document 62-3 Filed 06/05/17 Page 12 of 22 Policy 10.4.2 Inquiries and Complaints, Policy 10.4.5 Administrative Investigative Procedures, Policy 10.4.6 Completed Investigations, Policy 10.5 Disciplinary Procedures, Policy 10.5.1 Levels of Discipline, and Policy 10.6 Hearing Before the Sheriff. 37. Explain why Netter was disciplined in a manner that rendered her ineligible to test for promotion while E.U. was not, even though both had been charged with a crime. A responsive answer will indicate who made the decision on whether to discipline E.U. and whether to allow him to test for promotion. 1.7~f.YZ~7►i. Defendant Sheriff Barnes objects to this interrogatory on the grounds that the information sought regarding E.U. is non-public, confidential information that is protected from disclosure in the absence of a court order under N.C. Gen. Stat. § 153A- 98. Defendant Sheriff Barnes previously agreed to produce the personnel file of E.U. pursuant to a Protective Order. The initial proposed Protective Order accompanied Defendant's September 20, 2016, discovery responses, to which Plaintiff never responded. In light of Plaintiff's Second Set of Discovery, Defense counsel mailed Plaintiff's counsel a revised draft proposed protective order on May 12, 2017, and has not received a follow-up response. Subject to and without waiving these objections, Defendant Sheriff Barnes responds as follows: Attachment B includes information responsive to this Interrogatory. Because the information contained in Attachment B is derived from confidential personnel records, 12 Case 1:15-cv-00843-CCE-JEP Document 62-3 Filed 06/05/17 Page 13 of 22 Attachment B will be provided to Plaintiff upon the entry by the Court of a Protective Order. 38. Explain why Netter was disciplined for being charged with a crime while R.R. was not. A responsive answer will indicate who made the decision on whether to Defendant Sheriff Barnes objects to this interrogatory on the grounds that the information sought regarding R.R. is non-public, confidential information that is protected from disclosure in the absence of a court order under N.C. Gen. Stat. § 153A- 98. Defendant Sheriff Barnes previously agreed to produce the personnel file of R.R. pursuant to a Protective Order. The initial proposed Protective Order accompanied Defendant's September 20, 2016, discovery responses, to which Plaintiff never responded. In light of Plaintiffs Second Set of Discovery, Defense counsel mailed Plaintiffs counsel a revised draft proposed protective order on May 12, 2017, and has not received a follow-up response. Subject to and without waiving these objections, Defendant Sheriff Barnes responds as follows: Attachment B includes information responsive to this Interrogatory. Because the information contained in Attachment B is derived from confidential personnel records, Attachment B will be provided to Plaintiff upon the entry by the Court of a Protective 13 Case 1:15-cv-00843-CCE-JEP Document 62-3 Filed 06/05/17 Page 14 of 22 39. Identify all individuals who have been charged with a crime while working at GCSO since Sheriff Barnes took office, and for each, state whether and how the employee was disciplined. A responsive answer will provide documentation of the discipline and any appeals, indicate whether the individual charged was convicted, and indicate whether the discipline was given before or after the final disposition of a court. Defendant Sheriff Barnes objects to this request on the grounds that it is overbroad, unduly burdensome, and not proportionate to the needs of the case because Plaintiff has only identified three (3) officers that she alleges are comparators: E.U., R.R., and F.H. Other officers whose disciplinary histories are requested are not comparators and the disciplinary information in their personnel files is not relevant to a claim or defense at issue in this case. Defendant Sheriff Barnes objects to providing information about individuals who have been charged with a crime while working at GCSO, other than those identified by Plaintiff as comparators. In response to Request for Production No. 8, Defendant Sheriff Barnes has agreed to produce the disciplinary records of E.U, R.R., and F.H., subject to the entry of a Protective Order as required by N.C. Gen. Stat. § 153A-98. The initial proposed Protective Order accompanied Defendant's September 20, 2016, discovery responses, to which Plaintiff never responded. In light of Plaintiffs Second Set of Discovery, Defense counsel mailed Plaintiffs counsel a revised draft proposed protective order on May 12, 2017, and has not received a follow-up response. 14 Case 1:15-cv-00843-CCE-JEP Document 62-3 Filed 06/05/17 Page 15 of 22 40. Identify and describe all policies that prohibit aiding or providing evidence in an EEOC investigation. A responsive answer will identify documents containing these policies and will state whether GCSO officials have discretion in implementing discipline for violations of these policies. D ` '` ► ;1: Defendant Sheriff Barnes objects to this interrogatory as vague in that it does not clearly specify to which "policies" it refers. Subject to and without waiving this objection, Defendant Sheriff Barnes states that the Guilford County Sheriffs Office does not have policies that "prohibit aiding or providing evidence in an EEOC investigation." The North Carolina General Statutes and the Guilford County Sheriffs Office policies do not permit Plaintiff to illegally access confidential personnel files without authorization to be used for her own personal reasons unrelated to her official duties as an officer of the Sheriffs Office. Plaintiff served the First Set of Interrogatories and Requests for Production of Documents to Defendant on August 5, 2016, including Requests for Production of Documents Nos. 5-8. Accordingly, Defendant Sheriff Barnes` responses herein reflect the correct numbering for the Requests for Production of Documents. 9. Produce all documents identified or referenced in any response to any interrogatory. 15 Case 1:15-cv-00843-CCE-JEP Document 62-3 Filed 06/05/17 Page 16 of 22 I i7~(.Y Defendant Sheriff Barnes incorporates his objections to Plaintiffs Interrogatories into this response as if set forth fully herein. 10. Produce all documents related to the internal investigation conducted into Netter's alleged policy violations. Defendant Sheriff Barnes objects to this request on the grounds that it is vague in that it is unclear to which internal investigation it refers. Defendant Sheriff Barnes further objects to this request on the grounds of attorney-client privilege and the attorney work product doctrine. Subject to and without waiving these objections, Defendant Sheriff Barnes refers Plaintiff Netter to the Notice of Suspension Without Pay dated August 25, 2016; Notice of Disciplinary Action Recommended dated September 6, 2016; Notice of Hearing dated September 6, 2016; Statement of Charges (PSO# 2016 — 0516) dated September 6, 2016; and Notice of Termination dated September 13, 2016; all of which were filed as exhibits to Plaintiff's Supplement to the First Amended Complaint on April 13, 2017. [D.E. 57-1, 57-2, 57-3]. 11. Produce all recordings, minutes, notes, and other documents regarding Netter's September 13, 2016 hearing. Defendant Sheriff Barnes objects to this request on the grounds of attorney-client privilege and the attorney work product doctrine. Subject to and without waiving these 16 Case 1:15-cv-00843-CCE-JEP Document 62-3 Filed 06/05/17 Page 17 of 22 objections, Defendant Sheriff Barnes refers Plaintiff Netter to the non-privileged documents referenced in his response to Request No. 10. In addition, Defendant is producing as GCSO 001336 through GCSO 001342, the transcript of the September 13, 2016, Disciplinary Appeal Hearing; and Defendant will provide Plaintiff a copy of the audio recording of the September 13, 2016, which was made and maintained in the normal course of business. 12. Produce a copy of the employee handbooks or any other policy manuals for Defendant Sheriff Barnes objects to this request on the grounds that it is vague, not sufficiently limited in scope, and further objects to producing any "employee handbooks" or "policy manuals" other than the Guilford County Sheriffs Department Policies and Procedures Manual in effect in 2014 and 2016. Subject to and without waiving these objections, Plaintiffs counsel may review and inspect the Guilford County Sheriff's Department Policies and Procedures Manual in effect in 2014 and 2016 at a time that is mutually convenient for Plaintiff's counsel and defense counsel. 1. Admit that Netter was charged in 2014 for violating department policies "Conduct Unbecoming an Officer 10.2.1" and "General code of Conduct 10.2." 17 Case 1:15-cv-00843-CCE-JEP Document 62-3 Filed 06/05/17 Page 18 of 22 It is admitted that Plaintiff Netter received a Notice of Disciplinary Action Recommended dated April 21, 2014, stating that she had violated department policies "Conduct Unbecoming an Officer 10.2.1" and "General Code of Conduct 10.2." Except as specifically admitted, the request is denied. 2. Admit that Netter was disciplined in 2014 for violating department policy It is admitted that the Report of Disciplinary Action Taken dated May 1, 2014, states that the finding of a violation of "General Code of Conduct 10.2" was sustained. Except as specifically admitted, this request is denied. 3. Admit that the person who made the decision to terminate Netter knew she had filed an EEOC Charge of Discrimination. It is admitted that Defendant Sheriff Barnes terminated Plaintiff Netter on September 13, 2016. It is further admitted that Defendant Sheriff Barnes had knowledge that Plaintiff Netter had filed Charges of Discrimination with the Equal Employment Opportunity Commission. Except as specifically admitted, the request is denied. 4. Admit that Netter was disciplined, including suspension and termination, for providing personnel files of GCSO employees as evidence "to support her claims of discrimination to Guilford County Human Resources, the EEOC, and her personal attorney for documentation in a lawsuit." Case 1:15-cv-00843-CCE-JEP Document 62-3 Filed 06/05/17 Page 19 of 22 Iii 3S]F2i It is admitted that the "statement of the facts of the violation" section of the Statement of Charges dated September 6, 2016, states, in part, that, "Sgt. Netter, on her own authority, went into the personnel files of two Jail Central detention officers and made copies of disciplinary/counseling documents. Additionally, she requested from another GCSO employee, copies of disciplinary/counseling documents from the personnel files of three High Point detention officers. These records were not used by Sgt. Netter in her official duties as a supervisor; rather they were used to support her claims of discrimination to Guilford County Human Resources, the EEOC, and her personal attorney for documentation in a lawsuit. Copies of the documents obtained from these employees' files were turned over to persons not employed by the Guilford County Sheriffs Office. Permission was not requested or obtained from any of the affected employees, to copy and use documents contained in their personnel files." Except as specifically admitted, the request is denied. 5. Admit that all documents you have produced in response to any discovery request are authentic or accurate reproductions of the originals. It is admitted that Defendant Sheriff Barnes has produced copies that he believes to be authentic and accurate reproductions of the originals. 19 Case 1:15-cv-00843-CCE-JEP Document 62-3 Filed 06/05/17 Page 20 of 22 This the 26th day of May, 2017. JaPowell N.C. State Bar No. 12521 300 N. Greene Street, Suite 1900 Greensboro, NC 27401 Telephone: (336) 574-8081 Facsimile: (336) 574-4561 Email: jpowell@wcsr.com Sonny S. Haynes N.C. State Bar No. 41303 One West Fourth Street Winston Salem, NC 27101 Telephone: (336) 721-3632 Facsimile: (336) 726-2227 Email: shaynes@wcsr.com Attorneys for Defendant Sheriff BJ Barnes 20 Case 1:15-cv-00843-CCE-JEP Document 62-3 Filed 06/05/17 Page 21 of 22 I hereby certify that on this day, I have served the foregoing DEFENDANT'S I.1xyZIXI Iy[.y1(Ii 1I_\f►11YI I I] IN N 1 1iIiIC1 1 ` ► 1 REQUESTS FOR ADMISSION by electronic mail and by placing a copy of the same in the United States Mail, properly addressed and with the correct amount of postage affixed thereto: Wilson F. Fong (will.fonhense llaw.corn ) Craig Hensel ( craig.hensel(hensellaw.com ) Hensel Law, PLLC P.O. Box 39270 Greensboro, NC 27438 This the 26th day of May, 2017. Attorney for Defendant Sheriff BJ Barnes 21 WCSR 39832000v1 Case 1:15-cv-00843-CCE-JEP Document 62-3 Filed 06/05/17 Page 22 of 22 EXHIBIT 4 DEFENDANT’S RESPONSES TO PLAINTIFF’S MAY 15, 2017, REQUEST FOR SUPPLEMENTATION Case 1:15-cv-00843-CCE-JEP Document 62-4 Filed 06/05/17 Page 1 of 4 WOMBLE CARLYLE SANDRIDGE & RICE A LIMITED LIABILITY PARTNERSHIP 300 North Greene Street Suite 1900 Greensboro, NC 27401 Telephone: (336) 574-8030 Fax: (336) 574-4520 wwwwcsr.com Sonny S. Haynes Direct Dial: (336) 721-3632 Direct Fax: (336) 726-2227 E-mail: shaynes@wcsr.com May 26, 2017 Craig Hensel, Esq. (craig.lxensel(c hensellaw.cloymm) Wilson F. Fong, Esq. (will .f~n (d hense]law.com) Hensel Law, PLLC P. 0. Box 39270 Greensboro, NC 27438 Gentlemen: Jam in receipt of your email correspondence of May 15, 2017, requesting that Defendant Sheriff Barnes supplement his responses to Plaintiffs Second Set of Interrogatories and Requests for Production of Documents. Please allow this letter to serve as a response to your request for supplementation. Interrogatory 15 Rule 33(d) of the Federal Rules of Civil Procedure allows a responding party to specify and produce the records that provide the answer to an interrogatory. Plaintiff Netter's disciplinary and performance history is included in her personnel file. Plaintiff Netter's personnel file was mailed to you on May 12, 2017, and I trust that you are in receipt of it. Regarding the remainder of your request for supplementation regarding a comparison between Plaintiff Netter's job performance and the job performance of "similarly-situated employees," Defendant Sheriff Barnes rests on his prior objections and directs Plaintiff to same. Interrogatory 16 Defendant Sheriff Barnes rests on his prior objections to this interrogatory and directs Plaintiff to same. Interrogatory 17 Defendant Sheriff Barnes rests on his prior objections to this interrogatory and directs Plaintiff to same. Interrogatory 19 Defendant Sheriff Barnes rests on his prior objections and response to this interrogatory and directs Plaintiff to same. 1' . . I n / NORTH C.ROT.TNA / SC)IFTH C,JiOL1N\ VIRNI'flA TON 1) C. Case 1:15-cv-00843-CCE-JEP Document 62-4 Filed 06/05/17 Page 2 of 4 Page 2 Interrogatory 20 Defendant Sheriff Barnes rests on his prior objections and response to this interrogatory and directs Plaintiff to same. Interrogatory 21 Defendant Sheriff Barnes rests on his prior objections and response to this interrogatory and directs Plaintiff to same. Interrogatory 22 In his September 20, 2016, responses to Plaintiff's Interrogatories No. 9 and No. 10, Defendant Sheriff Barnes agreed to produce a list containing the name, race, gender, and date of test for each officer who tested for promotion during the time period of January 1, 2009, through December 31, 2014, which information was derived from confidential personnel records. As Defendant Sheriff Barnes has previously stated, the list will only be produced upon the entry by the Court of a Protective Order. The initial proposed Protective Order accompanied Defendant's September 20, 2016 discovery responses, to which Plaintiff never responded. In light of Plaintiff's Second Set of Discovery, Defense counsel mailed Plaintiff's counsel a revised draft proposed protective order on May 12, 2017, and has not received a follow-up response as of the date of this letter. Interrogatory 23 Defendant Sheriff Barnes rests on his prior objections to this interrogatory and directs Plaintiff to same. Interrogatory 24 Defendant Sheriff Barnes rests on his prior objections and response to this interrogatory and directs Plaintiff to same. Interrogatory 25 Defendant Sheriff Barnes rests on his prior objections to this interrogatory and directs Plaintiff to same. Request for Production of Documents 6 Defendant Sheriff Barnes rests on his prior objections to this request and directs Plaintiff to same. Request for Production of Documents 7 Defendant Sheriff Barnes rests on his prior objections to this request and directs Plaintiff to same. Request for Production of Documents 8 Defendant Sheriff Barnes rests on his prior objections to this request and directs Plaintiff to same. Case 1:15-cv-00843-CCE-JEP Document 62-4 Filed 06/05/17 Page 3 of 4 Page 3 Sinceely, ~.m Sonny. Haynes c: James M. Powell, Esq. Case 1:15-cv-00843-CCE-JEP Document 62-4 Filed 06/05/17 Page 4 of 4 EXHIBIT 5 PLAINTIFF’S MAY 31, 2017, REQUEST FOR SUPPLEMENTATION Case 1:15-cv-00843-CCE-JEP Document 62-5 Filed 06/05/17 Page 1 of 4 http://www.hensellaw.com | Phone (336) 218-6466 | Fax (336) 218-6467 Post Office Box 39270 Greensboro, North Carolina 27438 May 31, 2017 Via Email James Powell jpowell@wcsr.com Sonny Haynes shaynes@wcsr .com Will Fong will.fong@hensellaw.com (336) 218-6466 Re: Catherine Netter v. Sheriff BJ Barnes Civil Case No. 1:15-CV-00843-CCE-JEP Request for Supplementation Dear Mr. Powell and Ms. Haynes I am in receipt of your discovery responses dated May 26, 2017, and I write to request that you supplement Defendant’s responses to several requests. Interrogatory 27: Your answer did not state who decides that an investigation is necessary. Please provide the name(s) and title(s) of the person(people) who decide to initiate internal investigations. Additionally, your answer referenced documents that we have not yet received. Please provide the referenced documents. Interrogatory 28: Your answer did not state who decided that the investigation was necessary. Please provide the name(s) and title(s) of the person(people) who decided to initiate the Guilford County Sheriff’s Office’s (“GCSO”) investigation of Catherine Netter (“Netter”). Interrogatory 31: Your answer did not provide information on Netter’s benefits, but referenced documents that we have not yet received. Please either provide the requested description of Netter’s benefits or produce the referenced documents. Interrogatory 34: Your answer referenced documents that we have not yet received. Please provide the referenced documents. Interrogatory 35: Your answer did not describe what it means to violate department policy “Conduct Unbecoming an Officer 10.2.1,” but referenced documents that we have not yet received. Please describe what it means to violate department policy Conduct Unbecoming an Officer 10.2.1” and produce the referenced documents. Interrogatory 36: Your answer did not describe what it means to violate department policy “General Code of Conduct 10.2” or who decided when that policy has been violated, but referenced documents that we have not yet received. Please describe what it means to violate Case 1:15-cv-00843-CCE-JEP Document 62-5 Filed 06/05/17 Page 2 of 4 James Powell Sonny Haynes May 31, 2017 Page 2 of 3 department policy Conduct Unbecoming an Officer 10.2.1” and produce the referenced documents. Interrogatory 37: Your answer did not explain why Netter was disciplined in a manner that rendered her ineligible to test for promotion while E.U. was not, even though both had been charged with a crime, but referenced documents that we have not yet received. Please explain why Netter was disciplined in a manner that rendered her ineligible to test for promotion while E.U. was not, even though both had been charged with a crime, and produce the referenced documents. Interrogatory 38: Your answer did not explain why Netter was disciplined in a manner that rendered her ineligible to test for promotion while R.R. was not, even though both had been charged with a crime, but referenced documents that we have not yet received. Please explain why Netter was disciplined in a manner that rendered her ineligible to test for promotion while R.R. was not, even though both had been charged with a crime, and produce the referenced documents. Interrogatory 39: Your answer is insufficient. Defendant’s discipline practices with regard to employee charged with or convicted of crimes are relevant to this case, which is a case about failure to promote because of a discipline issued after Netter was charged with a crime. Defendant has unequal access to this information, which seeks to find direct comparators to Netter. Please provide the requested information about employees charged/convicted of crimes and the discipline they received. Interrogatory 40: Your answer references “North Carolina General Statutes and the Guilford County Sheriffs Office policies.” Please identify and produce those statutes and policies. Request for Production of Documents 10: Plaintiff has not requested any documents covered by attorney-client privilege and the attorney work product doctrine. Defendant has noted that the investigation was conducted by Lieutenant B.W. Hall and signed-off by Sheriff Barnes, neither of whom, upon information and belief, are attorneys. Furthermore, Defendant has never mentioned that an attorney was involved at any stage of the investigations into Netter’s alleged policy violations. If an attorney was involved at some point, this renders Defendants’ responses to Plaintiff’s discovery requests, particularly Interrogatory 28, at best deficient and at worst intentionally misleading. Please either produce the requested documents or explain the investigative process with sufficient particularity so that it is clear when, how, and why an attorney became involved and who that attorney (or those attorneys) were. Request for Production of Documents 11: Plaintiff has not requested any documents covered by attorney-client privilege and the attorney work product doctrine. Defendant has noted that the Case 1:15-cv-00843-CCE-JEP Document 62-5 Filed 06/05/17 Page 3 of 4 James Powell Sonny Haynes May 31, 2017 Page 3 of 3 investigation was conducted by Lieutenant B.W. Hall and signed-off by Sheriff Barnes, neither of whom, upon information and belief, are attorneys. Furthermore, Defendant has never mentioned that an attorney was involved at any stage of the investigations into Netter’s alleged policy violations. If an attorney was involved at some point, this renders Defendants’ responses to Plaintiff’s discovery requests, particularly Interrogatory 28, at best deficient and at worst intentionally misleading. Please either produce the requested documents or explain the investigative process with sufficient particularity so that it is clear when, how, and why an attorney became involved and who that attorney (or those attorneys) were. Additionally, your answer referenced documents that we have not yet received. Please provide the referenced documents. Request for Production of Documents 12: Plaintiff’s request is neither vague or overbroad. Defendant has alleged that Netter violated department policies if Netter was subject to rules of employment, which are commonly laid out in employee handbooks and policy manuals issued by employers, these are highly relevant. Employer policies cannot be cherry-picked out of their rightful context as part of a complete policy regime. As Defendant has raised violation of policy as a defense, Defendant must produce, in their entirety, all policies to which Netter was subject during her employment. I apologize for the short notice, but because we received your responses on the Friday before Memorial Day and the due date for our Motions to Compel is Monday, June 5, I will have to ask that we receive responses by the end of the day tomorrow, June 1, 2017.Sincerely, /s/ Wilson F. Fong CC: Craig hensel Case 1:15-cv-00843-CCE-JEP Document 62-5 Filed 06/05/17 Page 4 of 4 EXHIBIT 6 DEFENDANT’S RESPONSE TO PLAINTIFF’S MAY 31, 2017, REQUEST FOR SUPPLEMENTATION Case 1:15-cv-00843-CCE-JEP Document 62-6 Filed 06/05/17 Page 1 of 4 Case 1:15-cv-00843-CCE-JEP Document 62-6 Filed 06/05/17 Page 2 of 4 Case 1:15-cv-00843-CCE-JEP Document 62-6 Filed 06/05/17 Page 3 of 4 Case 1:15-cv-00843-CCE-JEP Document 62-6 Filed 06/05/17 Page 4 of 4