Madison - St. Clair Record

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Government employee job discrimination suits result in as many conflicts as recoveries, records show

By Record News | Apr 6, 2016

EAST ST. LOUIS – Job discrimination suits against politicians produce about as many conflicts of interest as recoveries, records of current and recent federal court cases show.

What follows is a review of 12 government employee discrimination cases involving southern Illinois plaintiffs in which attorney-client privilege issues were raised.

Such a conflict began to emerge in March, in a suit that former clerk Kelli Garner filed last May against St. Clair County circuit clerk Kahala Clay.

Garner’s lawyers, Ferne Wolf and Joshua Pierson of Maryville, Mo., claim Clay fired her in violation of medical leave and disability laws on the day Garner sought to fill out FMLA paperwork. Garner claims to suffer from chronic migraines.

On March 9, Magistrate Judge Donald Wilkerson, who presides over pre-trial matters, set a hearing the following day on four discovery disputes, one of which related to attorney-client privilege.

Minutes show he resolved three disputes at the hearing but couldn’t resolve the attorney-client one about a deposition of former county employee Jean Brown.

He asked for submissions on any such relationship between Brown and the county’s lawyer, Katherine Porter.

Porter, in private practice at Becker Hoerner, represents the county as special assistant to State’s Attorney Brendan Kelly.

On March 14, she filed notice that Becker Hoerner represents Brown, “limited to her employment as that employment is concerned with the present litigation.”

Porter directed Wilkerson’s attention to an order that Northern District Magistrate Judge Jeffrey Cole entered in 2014.

Cole ruled that lawyers for a professor suing DePaul University properly contacted another DePaul professor. He wrote that DePaul’s lawyers did not represent the professor when plaintiff’s counsel contacted her.

He also wrote that the professor did not supervise DePaul’s lawyers or consult with them regularly.

Cole drew a line between directing lawyers and directing employees.

“It is only the former that counts,” he wrote.

None of that explains the attorney-client problem between Porter and Brown.

Six cases that Garner cited on the same day don’t explain it either.

More conflicts

Conflict of interest also interfered with a retaliation suit that captain Eric Decker filed against Madison County sheriff Robert Hertz in 2013.

Decker’s lawyer, Lee Barron of Alton, claimed Hertz violated his rights against search and seizure and his rights of speech and association.

Hertz retained John Gilbert, of Sandberg Phenix and von Gontard, as special assistant to state’s attorney Thomas Gibbons.

A year after suit was filed, Hertz lost a Democrat primary race to John Lakin and went on unchallenged to win the general election in November 2014.

Barron moved to bar Gilbert and his firm from representing the county.

He argued that Decker on a number of occasions spoke directly to Gilbert about his concerns.

“Gilbert made certain statements to plaintiff which plaintiff believes a jury could infer indicated that attorney Gilbert was fully aware that the sheriff was engaging in improper conduct,” Barron wrote.

“Gilbert, on the apparent advice of another attorney in his law firm, elected not to voluntarily withdraw.”

District Judge Staci Yandle disqualified Gilbert last year, but not his firm.

That didn’t help Decker, for Yandle granted summary judgment last month when he couldn’t show evidence of retaliation beyond a lateral job transfer.

“Transfers that are purely lateral, involving no demotion in form or substance, and transfers involving no reduction in pay or only minor changes to working conditions are not sufficient to establish an adverse employment action,” Yandle wrote.

Conflict arose from a different angle when Barron sued Gibbons on behalf of former assistant state’s attorney Theresa Hagans in 2012.

She alleged termination in violation of disability and medical leave law.

Former District Judge Patrick Murphy signed an isolation order on law clerk Mark Beatty in 11 days.

Murphy dropped the case for reasons not on the record. Chief Judge David Herndon assigned it to District Judge Phil Gilbert, who held trial in 2014, with jurors returning a verdict for Gibbons.

Judge Gilbert figures into a current conflict as defendant in a job selection suit that Barron filed against Southern Illinois University trustees.

Gov. Bruce Rauner appointed Judge Gilbert as an SIU trustee last year.

Plaintiff Sandra Tamari claimed the university refused to interview her for a recruiting position due to her Palestinian origin.

Barron wrote that “white males of traditional southern Illinois heritage and origin” have managed the office of admissions for years.

Random assignment sent the suit to Judge Gilbert, but Chief Judge Michael Reagan arranged a second random assignment.

On March 30, he entered an order that the case would proceed under District Judge Nancy Rosenstengel.

Attorney Barron

Barron dominates the field of discrimination suits against politicians.

For former Madison County comptroller Linda Dunnagan, he secured a $450,000 jury verdict against county treasurer Kurt Prenzler in February.

Jurors found Prenzler fired Dunnagan in violation of the Americans With Disabilities Act.

District Judge Staci Yandle had not entered final judgment as of April 4.

The verdict evened the score between Barron and Prenzler, who prevailed over Barron in their first contest.

In 2011, Barron sued Prenzler on behalf of former county investment officer James Foley.

Foley claimed Prenzler fired him for his Democratic Party affiliation.

At the close of trial in 2013, Judge Murphy directed a verdict for Prenzler.

Murphy apologized to jurors for the inconvenience and said, “I like to see juries decide cases but it was necessary.”

He held trial two weeks after District Judge Michael Reagan transferred the case to him for reasons not on the record.

Two of Barron’s clients currently pursue claims against Madison County state’s attorney Thomas Gibbons.

Former assistant state’s attorney Julia Matoesian, wife of circuit judge Andy Matoesian, claims Gibbons terminated her due to her age.

Secretary Andrew Kane claims Gibbons retaliated for his success in previous complaints by changing his duties and location.

In Matoesian’s case, Barron and Gibbons exercised an option to proceed before a magistrate judge rather than a district judge.

Magistrate Judge Donald Wilkerson set Matoesian’s trial next February.

Judge Gilbert presides over Kane’s case.

Four clients of Barron have settled suits in 18 months.

Rosemary Barczewski settled claims that the Collinsville Area Recreation District broke five laws in firing her.

Kristin Egbert settled claims that Monroe County assessor Carl Wuertz violated her rights of speech and association when he fired her.

Carol Cooper and Linda McKechan settled speech and association claims against Nameoki township supervisor Randall Veissman.

A clash over speech rolled into federal court from Randolph County last October, when Misty Schlesinger sued sheriff Michael Hoelscher.

Her lawyer, John Hopkins of Alton, alleged retaliation for exercising rights “including but not limited to speaking out on matters of public concern.”

Randolph County retained Porter, who moved to dismiss the suit.

On Jan. 11, Herndon removed himself by consent of the parties and gave the case to Magistrate Judge Stephen Williams.

Williams adopted a protective order by consent on March 30, keeping Schlesinger’s medical records out of public view.

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