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Chartraw v. City of Shawano

United States District Court, E.D. Wisconsin

November 14, 2017

LAURA L. CHARTRAW, Plaintiff,
v.
CITY OF SHAWANO and MARK KOHL, Defendants.

          DECISION AND ORDER

          William C. Griesbach, Chief Judge United States District Court

         Plaintiff Laura L. Chartraw filed the instant action against Defendants City of Shawano and her supervisor, Chief of Police Mark Kohl, seeking relief for sex discrimination and retaliation. Chartraw has filed a motion to compel documents relating to an investigation by an attorney retained by the City of another female employee's complaints of discrimination against Chief Kohl, which arose during the investigation into Chartraw's own claims. The defendants claim these documents are protected by the attorney-client privilege and the work product doctrine. The parties submitted briefs on the issue and on November 8, 2017, the court held a hearing on the motion. For the following reasons, Chartraw's motion will be denied.

         BACKGROUND

         I. Allegations of Complaint

         Chartraw is employed by the City of Shawano's Police Department as its Support Services Manager. Am. Compl. ¶ 10, ECF No. 3. She reports directly to Chief of Police Mark Kohl, who she claims has made numerous offensive comments about her appearance in February of 2015. Id. ¶ 11. Chartraw also alleged that on multiple occasions in February and March of 2015, Chief Kohl made offensive comments about Officer Nicole Hoffmann, a female co-worker, concerning her chest size, her weight, and her eating habits. Id. ¶ 13. Although Chartraw told Chief Kohl that his comments were inappropriate and made her feel uncomfortable, and reported his comments to Lieutenants Musolff and Rabideau, she alleges that he again made offensive comments to her about her appearance in April 2015. Id. ¶¶ 11, 12, 14. When she again confronted him about his comments, Chief Kohl laughed and said that was the way he talked to his wife and daughter. Chartraw alleges Kohl continued to make rude comments to women and made demands of them that he did not make of the male employees, such as requiring them to personally greet him, smile more, report to him when they came and went from the office, and make eye contact with him. Id. ¶¶ 15, 16, 18. When she continued to complain, Chartraw alleges that Chief Kohl retaliated against her by yelling at her, criticizing her work, removing authority, isolating her, and undermining the trust and confidence of her subordinates. Id. ¶¶ 19-25.

         Chartaw alleges that she complained to both Brian Knapp, the City Administrator, and Lorna Marquardt, the mayor, but the abuse continued. Id. ¶¶ 29-35. At one point, Chartraw alleges, Chief Kohl told her he was going to give her a 2% salary increase, but decided not to because she refused to act as his confidential secretary and relate to him what his subordinates say about him. Id. ¶ 42. Chartraw claims that Chief Kohl's conduct toward her and the City's failure to prevent and correct his discriminatory and retaliatory conduct has caused, and continues to cause, her to suffer substantial mental and emotional distress and inconvenience, as well as monetary loss. Id. ¶¶ 47, 48, 50, 54. She seeks declaratory relief and compensatory and punitive damages.

         II. The Investigation

         The City of Shawano's Employee Personnel Policy contains a procedure for reporting harassing or retaliatory conduct at work. It provides,

As an employee of the City/Utility, you have an obligation to report any harassing or retaliatory conduct which you either witness, or is specifically directed at you as an individual, or that you learn from any credible source is effecting you or some other employee of the City/Utility, that you feel is offensive and unwelcome. . . .
An employee that has been the target or witness of harassment, discrimination, or physical abuse shall immediately report the matter to their immediate supervisor, Department Manager, or City Administrator/Utility Manager. . . .
The City Administrator or Utility Manager or his/her designee shall investigate the matter promptly and take appropriate remedial action along with department heads and elected officials. The results of the investigation shall be promptly communicated to the complaining party together with the remedial actions proposed and/or taken, if any, to stop similar occurrences of further harassment and/or discrimination, if any.

ECF No. 31-3 at 7.

         In accordance with this policy, the City initiated an investigation of Chartraw's claims. Attorney James Kalny was retained to conduct the investigation. Attorney Kalny, his firm, and its predecessor have served as the City's general labor and employment counsel for some thirty years. ECF No. 36 at 1. In the course of his investigation of Chartraw's complaint, Kalny interviewed Officer Hoffmann on March 2, 2016. At the close of her interview about Chief Kohl's comments pertaining to Officer Hoffmann's appearance, Officer Hoffmann advised Kalny that she believed Chief Kohl denied her a promotion on the basis of her sex and detailed her experience for him. Kalny then initiated a separate investigation into Officer Hoffmann's allegations regarding the failure to promote accusation. He conducted recorded interviews with Chief Kohl as well as Lieutenant Mauel as part of the Hoffmann investigation, but the digital recordings were subsequently recorded over and not retained by Kalny or his firm.

         While the investigation of Chartraw's complaint was going on, Officer Hoffmann retained counsel and on March 21, 2016, made a six-figure demand on the City under threat of litigation. Based on his investigation of Hoffman's complaint, Kalny submitted a report to City Administrator Knapp detailing his preliminary findings and his recommendations on March 25, 2016. The City did not communicate the results of the investigation or the findings in this report to Hoffmann. Hoffmann ultimately filed a lawsuit against ...


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