Federal Magistrate Judge Gilbert C. Sison denied former Madison County Community Unit Development Director Kristen Poshard’s request for sanctions against board member Phil Chapman in her suit alleging sexual harassment and discrimination.
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 argued 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 argued 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 alleged he did not supplement.
“Chapman has wasted valuable time and resources,” the motion stated. “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 asked the court to order Chapman to comply with her discovery requests and 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 stated. “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 asked 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 argued that he provided all amended answers but has been waiting to receive additional documents, which he claimed were promised as a result of a previously agreed upon resolution on outstanding discovery matters. He argued 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.
Motion to Compel
In his March 19 order, Sison also granted in part and denied in part Poshard’s motion to compel filed Jan. 30 but denied her second motion to compel filed March 11.
Poshard filed the second motion to compel Hulme to produce documents he claims belong to Madison County.
According to the motion, Hulme argued that he did not have control over the documents and believed the county did.
In response, Madison County argued that it does not control the documents as it is just the legislative branch of government. It argued that the documents belong to the executive branch.
“Some of plaintiff’s requests to Hulme overlap with her first requests to the county,” the motion stated. “But Hulme tells plaintiff to look to the county and the county says it has no documents.”
“If the county’s responses that it has no documents hinge on the claim that the county is only a legislative branch, then one or both defendants are playing a shell game,” it continued. “Someone can get the county’s documents. So plaintiff asks the court to order Hulme to do so.”
Hulme filed an opposition to the Poshard’s motion to compel on March 16.
“Defendant Hulme does not have possession of any responsive documents in his individual capacity,” the opposition stated.
Hulme argued that any communication between himself and Poshard or any personnel records would have been sent or stored on the Madison County computer network and stored on the server. As a result, in order to retrieve these documents, county employees would retrieve the documents while they are being paid a salary by Madison County.
“In essence, this would require Defendant Hulme to usurp Madison County resources for personal reasons,” the opposition stated.
“Moreover, defendant Hulme is not the custodian of records for Madison County’s computer network and/or server or any of its personnel files,” it continued. “Accordingly, defendant Hulme cannot properly authenticate any of these records.”
Hulme argued that it would be inappropriate for the court to order him to produce the documents in question.
“Defendant Hulme asserts that the responsibility for producing the documents in question either resides with defendant Madison County, or, if defendant Madison County is not the proper entity, plaintiff should subpoena the appropriate entity to produce the documents, along with a custodian of records who can properly authenticate the documents,” the opposition stated.
Background
Poshard filed her complaint in U.S. district court on March 19, 2019 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 retired judge Jim 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.