Madison County Board Member Phil Chapman seeks to file an untimely cross-claim in former Madison County Community Development Director Kristen Poshard’s sexual harassment and discrimination complaint, in which she also seeks sanctions against Chapman.
Chapman filed a motion for leave to file a cross-claim against Board Chairman Kurt Prenzler, County Administrator Doug Hulme and Madison County on Feb. 10 through attorney Jarrod Beasley of Kuehn Beasley & Young PC in Belleville.
In his motion, Chapman argues that he was subjected to two investigations by Prenzler, Hulme and Madison County.
“One of these confidential investigations resulted in a report by retired Judge James Hackett.
“That report was subsequently leaked to the press by the crossdefendants in violation of law,” the motion states.
Chapman seeks damages sustained as a result of the alleged leaked report.
In response, Prenzler said he appointed outside counsel to investigate after Chapman refused to resign.
“Two and a half years ago, I received a complaint from a county employee accusing Phil Chapman of sexual harassment and stalking. That same afternoon, I confronted Chapman, when he showed up at the victim’s office to see her.
“County Administrator Doug Hulme and I escorted Chapman out of her building and confronted him in my office.
“Chapman admitted that he was trying to pursue a ‘romantic relationship’ with the county employee. Two days later, I asked him to resign from the county board, but he refused.
“I then appointed outside counsel to investigate the matter.
“I stand by my decisions,” Prenzler wrote.
Prenzler, joined by Madison County and Hulme, also responded by filing an opposition to Chapman’s motion on Feb. 24 through attorney John Gilbert of Sandberg Phoenix & von Gontard PC in Edwardsville.
They argue that a joint report provided that all motions to amend pleadings, including the commencement of a third party action, must be filed by Nov. 17. However, Chapman filed a motion to extend the deadline on Nov. 8, claiming he might file a third party complaint. His request for an extension to Jan. 1 was denied.
“Now, over six months after joining in the Joint Report setting the deadline, nearly three months after the deadline itself, and indeed over one month after his prior proposed extension date, defendant Chapman now seeks leave to assert an out of time cross-claim against the other defendants,” the response states.
They also argue that the investigations Chapman references in his request for a cross-claim predate Poshard’s lawsuit, meaning he knew of the facts and circumstances and considered filing a cross-claim since before a scheduling order deadline.
“Defendant Chapman articulates no basis whatsoever for his delinquency,” the response states.
Madison County, Prenzler and Hulme argue that a cross-claim at this point in litigation would result in prejudice.
“The parties have undergone substantial written discovery and are preparing for depositions of the parties and other witnesses,” the response states. “If allowed to submit a cross-claim, the parties would be required to return to the pleadings stage, draft responsive pleadings potentially including motions to dismiss, brief those issues for the court, restart written discovery, and delay all depositions for a period of months.”
“All other dates in the scheduling order would be disrupted, for no other reason than defendant Chapman’s unexplained delay in attempting to assert his claims for relief,” it continues.
Sanction Request
Poshard filed a motion for sanctions against Chapman through attorney Ferne P. Wolf of SilversteinWolf LLC in St. Louis on Feb. 24 “because of Chapman’s conduct in responding to her First Interrogatories and Requests for Production.”
Poshard argues that she served Chapman with her first interrogatories and requests for production on Aug. 16, 2019. Chapman did not respond but served his own discovery requests. Poshard was given more time to respond, and Chapman was ordered to respond to her discovery by Nov. 26, 2019.
Poshard argues that while Chapman did respond, some of the answers were insufficient. She filed a motion to compel.
At a Feb. 3 hearing, Chapman’s counsel said he would supplement the responses. However, Poshard alleges he did not supplement.
“Chapman has wasted valuable time and resources,” the motion states. “By extending his response time for more than six months, Chapman has used up much of the discovery period, preventing plaintiff from effective follow up with him or other defendants. But we cannot turn back the clock. Thus, plaintiff asks for these sanctions and relief.
Poshard asks the court to order Chapman to comply with her discovery requests, award her fees covering the time associated with her interrogatories and requests for production.
Poshard also requested the court enter an order that Chapman cannot participate in discovery against the plaintiff for six months.
“This is the time he delayed his responses,” the motion states. “If the other defendants take plaintiff’s deposition before the end of the six-month period, he will have lost his change (sic) to take her deposition. There will be no second deposition.”
Poshard further asks the court to order Chapman to appear for deposition at SilversteinWolf’s office at her convenience and enter an order that she can take Chapman’s deposition more than once if she believes it is necessary.
Chapman filed a response to the motion for sanctions on Feb. 25 through attorney Michael Wagner of Clayborne & Wagner LLP in Belleville. He argues that he provided all amended answers but has been waiting to receive additional documents, which he claims were promised as a result of a previously agreed upon resolution on outstanding discovery matters. He argues that he will supplement the answers with the additional documents when they are received.
“In this case, defendant is making a good faith effort to comply with the rules and resolve the outstanding discovery issues between the parties,” the response states.
Poshard filed a motion for leave to reply to Chapman’s response.
“Because in that response, Chapman makes it seem like when he served his amended discovery responses, he had taken care of all deficiencies,” the motion states. “That is not the case.”
Then on Feb. 28, Poshard filed a motion to withdraw her motion to compel, arguing that the matter has been resolved. Her motion for sanctions is still pending.
Background
Poshard filed her complaint in U.S. district court on March 19 against Chapman, Prenzler, Hulme, and Madison County.
According to Poshard’s complaint, Chapman allegedly requested a confidential meeting in May 2017.
Poshard claims she believed the meeting related to county business and agreed to meet him at Cracker Barrel in Troy. During the meeting, she claims Chapman hugged her and later said he became “excited” and “tingly.”
She further claims Chapman had notes with questions designed to engage her in personal and sexual conversation, with one note asking her to guess his underwear.
“When plaintiff refused to answer, Chapman said he was wearing a black thong,” the suit states.
Chapman allegedly asked if she was shocked. She allegedly responded that she was and left.
Poshard claims Hulme called her and said she would be paired with Chapman at a golf tournament. She allegedly told Hulme about Chapman making inappropriate advances and said she did not want to be paired with him.
When she wasn’t given a new partner, Poshard claims she notified Prenzler and Chapman that she wouldn’t attend the tournament.
Poshard then allegedly reported Chapman to Prenzler on June 7. Prenzler apologized and directed Hulme to speak with them, the suit states.
Hulme brought compliance officer John Thompson with him, who allegedly said Chapman had to go.
Poshard claims that on June 10, Prenzler and Hulme met with her and agreed that it would be best to ban Chapman from county buildings.
“Prenzler said to expect retaliation because Chapman was the most vindictive person in the county,” the suit states.
The county then hired Hackett to determine if Poshard’s allegations amounted to a violation of county policy.
“The retired judge concluded that even taking plaintiff at her word, the events were not adequate for a finding under county policy,” the suit states. “Thus, in hiring the judge, the county was not concerned with taking reasonable care to prevent and promptly correct any harassing behavior.”
She alleges the summary included no interviews with witnesses.
Then the county allegedly placed her on administrative leave. She was discharged on Oct. 18, 2017.
In a press release following the lawsuit, Prenzler wrote that after Poshard notified him of the sexual harassment claims, she was provided time off and safe accommodations while Hackett investigated. She allegedly refused to return to work.
“During her long absence, issues arose in her department that needed to be addressed by a director,” he wrote.
Prenzler added that after thorough deliberation, the county board unanimously removed Poshard from her position.
In her complaint, she also alleges sexual discrimination. She claims Prenzler hired her with a salary of $92,000 when her predecessor, Frank Miles, was paid $103,000.
She allegedly complained to the Equal Employment Opportunity Commission and received two notices of right to sue.
Poshard amended her complaint on April 22.
Madison County answered the amended complaint on June 7, 2019 through attorney John Gilbert of Sandberg Phoenix & von Gontard in Edwardsville.
In its affirmative defenses, Madison County argues that Poshard’s claims are frivolous and that she failed to use reasonable means to protect herself from loss and mitigate her alleged damages.
As for Poshard’s discrimination claim, Madison County argues that it acted in good faith and that any decision regarding her salary “was based upon reasonable factors other than sex.”
In its answer to the complaint, Madison County denies that Poshard and Miles performed jobs encompassing the same common core of tasks and denies that it gave Poshard additional duties without additional pay.
Madison County also argues that punitive damages are not recoverable.
“Defendants neither made any decision, nor took away any action that was motivated by malice or evil motive or intent, nor were defendants callously indifferent to plaintiffs’ rights …” the answer states.
Hulme answered the complaint on June 7 through attorney T. Christopher Bailey of Greensfelder Hemker & Gale PC in St. Louis.
In his affirmative defenses, he argues that any action taken with respect to Poshard’s employment “was taken for legitimate, non-discriminatory reasons attributable to plaintiff’s own actions ...”
Hulme also argues that Poshard’s wage was based on factors other than gender.