Lawsuit names local sheriff and judge
Judge Mark Johnson and Sharp County Sheriff Mark Counts were named in a civil suit filed in the United States District Court Eastern District of Arkansas Northern Division filed in Jonesboro Feb. 24 by Sutter and Gillham, P.L.L.C, on behalf of Mary Wanley.
Wanley served as the bailiff for the county in District Court under District Court Judge Mark Johnson beginning some time in early 2011. She was terminated from her position as bailiff/probation officer in September of 2019.
When initially hired, the position of bailiff and probation officer were two separate positions, however; on Nov. 26, 2012, Johnson approached the Sharp County Quorum Court to request the positions of bailiff and probation officer be combined.
At the time, according to the audio recording of the meeting on file at the Sharp County Clerk’s Archive room, Wanley had worked as bailiff for about a year prior to the meeting.
Johnson explained to the court Amy Wiles, his former probation officer, had taken a position elsewhere and it was then filled by Colbert English, who had also left the office to take a job with the state.
He said District Court had been without a probation officer for several months at the time and without the ability to combine the positions, he could not offer competitive pay and retain a probation officer.
At the time of the proposal, Johnson said combining the two positions of bailiff and probation officer would save the county approximately $11,372 annually and recommended Wanley for the position as she had completed the police academy and was also a certified bailiff, making her more than qualified to fill the newly created position through combining the job duties.
Johnson said the starting salary would be $24,600 and was equal, at the time, to starting deputy pay salary. He explained that since Wanley had completed the academy, she could go to work for the sheriff’s department making more than he could offer for the position unless the two were combined.
According to the tape of the meeting, this removed the approximate $8,500 the sheriff’s department had been kicking in and allowed for the money to be used to hire an assistant bailiff.
An assistant bailiff was employed by the sheriff, however; not until Jan. 1, 2020. In years past, the assistant bailiff position was paid by circuit chancery court.
When the court voted to approve the position and combine the job duties of bailiff and probation officer, the position fell under the control of the District Court.
According to the lawsuit recently filed, several “general allegations and facts” were cited as part of the lawsuit.
The first item addressed in the suit is the matter of parties and jurisdiction.
“Plaintiff is a resident and citizen of Arkansas who sues the defendant, Mark Counts, duly acting, elected sheriff of Sharp County, Arkansas for age discrimination,” the suit read. “Plaintiff timely filed a Charge of Discrimination with the Equal Employment Opportunity Commission and now files this action, more than 90 days have elapsed after filing of the charge...”
The suit goes on to state Wanley is a female over the age of 40, at all times, relevant Wanley performed her job satisfactorily; Wanley was fired by the sheriff on Sept. 5 for no legal reason and the sheriff said Wanley had done nothing wrong and she would be hired as a court security officer.
According to a formal letter of grievance filed with the Sharp County Judge on Sept. 20, 2019, Wanley recapped the events that led to her termination.
“The issue started on Friday, Sept. 6, 2019, while I was working in Judge Johnson’s court. I walked through the courtroom to clear the lobby and returned through the kitchen door. I opened the door and heard the judge yelling my name. I came into the courtroom where he instructed me to stay in the courtroom. I did through two more cases and at the next to the last case, one of the litigants got a ruling he was not happy with, became irate and started to threaten the judge,” Wanley wrote in her grievance.
The grievance goes on to share the events that followed. Wanley followed the litigant, she watched him walk from the courtroom and around the parking lot to his car where she lost sight of him. She received word from another employee of the courthouse the litigant was walking back toward the front door.
“He walked past me to the side door that leads to the jail, went to the sheriff’s door and walked toward dispatch then turned toward the sheriff’s office. I followed him and asked the secretaries if they had seen him. They said he was in [detective] Cody’s [Bailey] office,” Wanley wrote.
At this time, another employee of the court called Wanley on the two way radio used for communications and said the judge was “screaming” for Wanley and was off the bench.
When Wanley returned to the courtroom, she stated Johnson berated her in front of other people in the courtroom waiting for their trial to start and later when court was over, stopped her to let her know she was not doing her job correctly.
In the grievance letter, Wanly said on Sept. 9, she was in her office preparing for a quorum court meeting when Johnson came to her office and asked why she was still there. He then left and returned, calling her to his office.
“He told me to ‘SIT DOWN’. He had several papers in front of him that looked like an open file, it was my papers from when I started working at the sheriff’s department in 2017, he looked at them and stated I do fine work for four or five months and then I mess up,” Wanly wrote. “He would not let me look at the papers in his hands, I tried to explain the situation but all he said was to ‘BE QUIET’... He told me I was on administrative leave and had until 2 p.m. Sept. 10 to turn in my resignation or I was fired.”
The letter finished out with a request for her grievance to be heard by the grievance committee.
According to letters provided to her and acquired though the Freedom of Information Act from Sharp County, a response letter from both County Attorney Larry Kissee and Judge Gene Moore were sent to Wanley.
The letter from Kissee, dated Oct. 8, 2019, stated she had not filed her grievance in a timely manner as there is a policy in place stating written grievances must be filed within three business days after any claimed deprivation for which a grievance hearing is requested.
“Mrs. Wanley claims the deprivation occurred September 9, 2019. She didn’t file her formal letter requesting a hearing until September 20, 2019. Therefore, the grievance hearing request filed by Mrs. Wanley is not timely and she is not entitled to a hearing under the Sharp County Policy and Procedures for At-Will Employment,” Kissee responded.
Moore’s response was similarly situated, citing the county policy and timeline for the denial of a grievance hearing.
According to Sharp County Sheriff Mark Counts, Wanley is still on the books as an employe of the Sharp County Sheriff’s Department and after receiving a verbal request through the Freedom of Information Act, provided documentation showing Wanley worked for his department on Oct. 23, 2019.
“She had come to me after Judge Johnson had fired her and told me what happened. I told her I didn’t have much, but would bring her on as needed. She worked for me on Oct. 21, 2019 doing a transport and she’s still on the books,” Counts said. “She’s still a reserve deputy also.”
The documents show Wanley received payment for the transport on Oct. 31, 2019.
Dec. 4, 2019, Wanley filed a complaint with the EEOC. In her charge of discrimination complaint, Wanley stated “I’m a female over the age of 40-years-old. I was terminated for no good reason and replaced by a female under the age of 40-years-old. I believe my employer has discriminated against me in violation of the ADEA,” the complaint reads.
A little more than a week later, a response was given by the EEOC. In the response dated Dec. 12, 2019 the EEOC returned a Dismissal and Notice of Rights.
“The EEOC is closing its file on this charge for the following reason: the EEOC issues the following determination; based upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that may be constructed as having been raised by this charge,” the document states.
At the bottom of the form, a notice of suit rights was listed.
“Title VII, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, or the Age Discrimination in Employment Act: this will be the only notice of dismissal and of your right to sue that we will send you. You may file a lawsuit against the respondent(s) under federal law based on this charge in federal or state court. Your lawsuit must be filed within 90 days of your receipt of this notice; or your right to sue based on this charge will be lost (the time limit for filing suit based on a claim under state law may be different.)” the document stated. “Equal Pay Act (EPA): EPA suits must be filed in federal or state court within two years (three years for willful violations) of the alleged EPA underpayment. This means that backpay due for any violations that occurred more than two years (three years) before you file suit may not be collectible.”
The letter was signed by William A. Cash, JR, Area Office Director on behalf of the commission.
Listed in the filing of the suit from February of this year, the lawsuit claimed Johnson has said he wanted his security officers to be “young and pretty” and states Wanley was terminated and replaced by a less experienced individual under the age of 40.
It alleges Johnson fabricated reasons for terminating Wanley because he wanted a “younger prettier employee...,” the suit said.
Other claims were also made as part of the suit stating Johnson fabricated reasons to influence the defendant (Counts) to terminate the plaintiff.
“Defendant Counts, although nominally plaintiff’s employer, rubber-stamped the district judge’s decision; therefore, the district judge was a cat’s paw [a person who is used by another to carry out an unpleasant or dangerous task.],” the suit states.
The suit goes on to state Wanley performed her job satisfactorily, but claims Johnson “wanted a younger more attractive individual...”
“As a direct and proximate cause of defendants’ acts and omissions alleged herein, plaintiff has lost wages, lost retirement, incurred medical bills, as well as other damages in an amount to be proven at trial.”
According to information for the Arkansas Public Employees Retirement System (APERS), once an employee has been in the system for five years or more, retirement accrued is not lost.
In an email, by Nina Gettinger, retirement coordinator for APERS, “a terminated member’s account stays in our system until they either retire, or take a contribution refund (contributory plain only). If the terminated member was vested, they can retire upon reaching an eligible age,” the response stated.