Poshard v. Madison County, Illinois

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

KRISTEN POSHARD, )

)

Plaintiff, )

)

vs. ) Cause No. 3:19-cv-00324-SMY-GCS

)

MADISON COUNTY, IL, et al., )

)

Defendants. )

____________________________________)

MEMORANDUM & ORDER

SISON, Magistrate Judge:

INTRODUCTION AND BACKGROUND

Before the Court is Plaintiff Kristen Poshard’s Motion to Determine Sufficiency of

Madison County’s Responses to Plaintiff’s First and Second Requests for Admissions.

(Doc. 110). The instant matter was referred to the Court by United States District Judge

Staci M. Yandle. (Doc. 111).

In her motion, Plaintiff seeks a determination from this Court regarding certain

objections and responses made by Defendant Madison County to Plaintiff’s First and

Second Requests for Admissions. (Doc. 110). As an initial matter, Plaintiff argues that the

instant discovery motion had to be filed because of the position recently taken by

Defendant that Plaintiff did not sue the County, but rather the Madison County Board.

(Doc. 110, p. 1). Subsequent to taking this position, Defendant has resisted various

discovery efforts claiming that the information requested by Plaintiff is under the control

of other offices of Madison County and not the Madison County Board (“Board”) itself.

Id. Plaintiff, however, asserts that her lawsuit is against Madison County and not the

Board and points out that the Board is not a separate entity that can sue or be sued. Id. at

p. 4.

Defendant Madison County filed an opposition in response. (Doc. 120).

Defendant argues that a suit against Madison County is a suit against its Board. Id. at p.

3. For support, it points to the fact that the power to contract rests exclusively with the

Board. Id. (citing Wheeler v. Wayne County, 24 N.E. 625 (1890)). It further notes that the

power to bind a county likewise rests with the county board. Id. (citing Bouton v. Bd. of

Supervisors of McDonough Cnty., 84 Ill. 384 (1877)). Because one of the actions at issue in

this matter, i.e., the termination of Plaintiff’s employment, was taken by the Madison

County Board, the Defendant reasons that a dispute over that action is essentially one

against the Board itself. Id. (citing County of Fayette v. Morton, 53 Ill. App. 552 (Ill. Ct. App.

1894)).

In light of this position, Defendant further argues that the recent disputes over

discovery can be cured with Plaintiff amending her complaint to match her allegations.

(Doc. 120, p. 2). Defendant points to the fact that the Board does not have custody or

control over much of what the Plaintiff has sought by way of discovery. Id. As an

example, Defendant notes that Plaintiff has sued various persons in their individual

capacity, i.e., Philip Chapman, Kurtis Prenzler and Douglas Hulme. But, because those

same individuals have held or currently hold official titles in Madison County, the

discovery Plaintiff seeks is currently being held by the offices of the individuals she has

named, specifically, the Offices of the County Board Chairman and County

Administrator. Id. To further underscore the purported separate nature of these positions,

Defendant notes that the aforementioned offices do not currently have counsel entered

in this litigation. Id.

A hearing was held on May 20, 2020, at which time the Court heard arguments

from the parties. (Doc. 121). Plaintiff argued that the Defendant’s responses to her

requests for admissions were deficient because the Defendant only responded for the

Board, but the requests were for information about Madison County as a whole. Id.

Defendant countered that the threshold issue is whether a suit against Madison County

is a suit against the Board, which is a legal issue to be determined by the court. Id.

Defendant further claimed that Plaintiff was seeking information from the wrong

defendant as the offices of the county board chairman and county board administrator

had such information.1 Id. Defendant also noted that it made a good faith effort to request

documents from these officeholders, but it got no response. Id.

Defendant filed a response in opposition on the day of the hearing. (Doc. 120).

Because Plaintiff’s counsel did not have an opportunity to review the filing prior to the

hearing, the Court gave Plaintiff an opportunity to file a reply with specific directions to

provide the Court with further briefing on the appropriate entity to respond to discovery

requests. (Doc. 121). Because of its desire for additional briefing, the Court also indicated

1 The issue of the appropriate entity had come before the Court previously at another discovery

dispute held on February 3, 2020. (Doc. 76). At the hearing, Plaintiff indicated that she had sought certain

information from Madison County, but the Defendant indicated that it did not have such information, as

the information was in the possession of other offices within Madison County. The Court expressed initial

skepticism with Defendant’s position as Plaintiff had sued Madison County. Nevertheless, the Court

declined to take a position on the matter and suggested to Plaintiff that she subpoena the specific offices

identified by the Defendant for the information.

it would likely give permission for the filing of a sur-reply, which was granted to the

Defendant on June 3, 2020. (Doc. 130).

The Court held another hearing on July 22, 2020, to announce its decision. (Doc.

149).2 The Court granted in part and denied in part Plaintiff’s motion. Id. The Court,

however, agreed to memorialize its decision in writing in the event the Defendant wished

to appeal the Court’s ruling to the District Court.

DISCUSSION

A. The Appropriate Entity to Respond to Outstanding Discovery Requests.

The issue before the Court essentially boils down to which entity did Plaintiff sue

and what is the extent of that entity’s ability to obtain and disclose the requested

information through the discovery process. Answering the first question, Plaintiff has

sued Madison County. In her Amended Complaint Plaintiff has named Madison County

in the following eight counts: Count I (Title VII Sex Discrimination); Count II (Title VII

Retaliation); Count III (Equal Pay Act); Count IV (Illinois Equal Pay Act); Count V (42

U.S.C. § 1983 Sex Discrimination); Count VI (42 U.S.C. § 1983 Retaliation); Count XIII (775

ILCS § 5/2-101, et seq., Illinois Human Rights Act Sex Discrimination); and Count XIV

(775 ILCS § 5/6-101, et seq., Illinois Human Rights Act Retaliation). (Doc. 16, p. 9-15, 21-

23).

2 To the extent that anything in this Memorandum and Order conflicts with and/or is inconsistent

with the oral ruling pronounced by the Court at the July 22nd hearing, this written Memorandum and

Order controls and is the final decision of the Court.

Defendant, however, argues that a suit against Madison County is a suit against

the Board. (Doc. 122). To analyze the dichotomy the Defendant is attempting to make, it

is important to examine the structure of Madison County government. Madison County

is organized under a township form of government. See County Board, MADISON COUNTY,

https://www.co.madison.il.us/government/county_board/index.php (last visited

July, 20, 2020). Township counties operate with standing committees, which study

problems arising under their purview and recommend actions to the full board. See

ILLINOIS ASSOCIATION OF COUNTY BOARD MEMBERS, INSIDE THE COURTHOUSE: ILLINOIS

COUNTY GOVERNMENT 2 (2019), https://ilcounty.org/file/213/Inside%20the%20Courth

ouse%202019.pdf. Typically, the county board has legislative and executive functions. Id.

In its legislative capacity, the board passes ordinances and resolutions. Id. In its executive

capacity, the board administers the activities of county departments and offices unless

the department is headed by another elected official. Id.

In Madison County, the board’s executive functions are largely held by the County

Board Chairman, an elected position. See County Board Office, MADISON COUNTY,

https://www.co.madison.il.us /departments/county_board_office_(2)/index.php (last

visited July 20, 2020). As the county’s “chief executive officer,” the chairman appoints

department heads and coordinates their operations, appoints board members to standing

committees, and presides over county board meetings. Id. The chairman’s appointments

are subject to approval by the county board. See MADISON COUNTY, IL., CODE OF

ORDINANCES TIT. III CH. 30 § 30.04(A) (2005). One of the appointed officials, the County

Administrator, serves as an advisor to the chairman and “coordinates and implements

the actions of the County Board, directs the day-to-day operation of County facilities,

programs and personnel and provides staff support to the County Board in policy-

making (sic).” See County Board Office, MADISON COUNTY. See also MADISON COUNTY, IL.,

CODE OF ORDINANCES TIT III CH. 31 § 31.16(B)-(C) (2005). Thus, if there is a so-called

“executive branch” of Madison County, it would consist of the County Board Chairman

and the County Administrator.

In this case, Plaintiff claims she worked for the Department of Community

Development, as Chief Deputy Administrator. (Doc. 16, § 13). This department works to

expand economic opportunities, to promote affordable housing, and to alleviate poverty

in Madison County. See Community Development, MADISON COUNTY,

https://www.co.madison.il.us/departments/community_development/index.php

(last visited July 20, 2020). The head of this department is an appointed position. Id.

Consistent with the above description of Madison County government, Defendant

attempts to distinguish between the Board on the one hand and the County Board

Chairman and Administrator on the other. The former is the legislative arm of Madison

County, while the latter is the executive. Because Plaintiff has sued the Board, Defendant

argues that it does not have control or access to much of the information Plaintiff is

seeking because such information is maintained and controlled by the offices of the

County Board Chairman and Administrator. (Doc. 122).

Defendant relies on various Illinois statutes to arrive at the conclusion that a suit

against Madison County is actually a suit against the Board. First, Defendant notes that

the “powers of the county as a body corporate or politic, shall be exercised by a county

board[.]” 55 ILL. COMP. STAT. § 5/5-1004. Defendant further relies on the statutory

provision indicating that county boards have the duty “to take and order suitable and

proper measures for the . . . defending of all suits brought . . . against their respective

counties.” 55 ILL. COMP. STAT. § 5/1-6003.

These statutory provisions, however, do not support the conclusion that suits

against a county are tantamount to suits against a county board. For example, the plain

language of Section 5/1-6003 actually contemplates “suits brought . . . against . . .

counties.” 55 ILL. COMP. STAT. § 5/1-6003. The statute does no more than simply vest the

county board with responsibility to handle such suits. It does not, as Defendant suggests,

turn such suits into suits against the Board.

Defendant’s reliance on Section 5/5-1004 fares no better. While it is true that

Section 5/5-1004 authorizes the county board to exercise the “powers of the county as a

body corporate or politic,” it does not mean that the county board is a separate entity

which can be sued. In fact, Illinois courts construing Section 5/5-1004 have concluded

that county boards are not entities, separate and apart from their respective counties, that

can be sued. For example, in Richardson v. Cty. of Cook, 621 N.E.2d 114 (Ill. Ct. App. 1993),

an employee of a county hospital brought suit against her supervisor and other

employees for intentional torts and civil rights violations, but the employee also named

the county board and hospital as defendants. Id. at 116. The court held that the county

board and hospital were improperly named as defendants in the case. Id. at 116. Relying

on Section 5/5-1004, the court reasoned that the board was “not a separate entity which

can be sued.” Id. at 117. Rather, Section 5/5-1004 simply made the board’s powers “co-

extensive with the County.” Id. See also Appel v. LaSalle County State’s Attorney Felony

Enforcement Unit, No. 18-cv-2439, 2019 WL 4189461, at *3 (N.D. Ill. Sept. 4, 2019)(holding

that County Board and State’s Attorney’s Office were not suable entities because they did

not “‘enjoy separate legal existence independent of the County.’”)(quoting Reese v.

Chicago Police Dept., 602 F. Supp. 441, 443 (N.D. Ill. 1984)). As to the hospital, the court

reasoned that it was not subject to suit as well “because it [was] owned and operated by

the County, and [was] not itself a legal entity.” Id. See also Jackson v. Village of Rosemont,

536 N.E.2d 720, 723 (Ill. Ct. App. 1988)(holding that stadium, as a building owned and

operated by the Village of Rosemont, was not a legal entity that can sue or be sued).

Federal courts interpreting Illinois law have also concluded that counties are the

appropriate entity to be sued and not the sub-divisions, offices, or departments within

the county. For example, the court, in Khan v. Cook Cty. Dep’t of Highways, No. 93-C-1375,

1994 WL 523703 (N.D. Ill. Sept. 23, 1994), held that a county department of highways was

not a separate legal entity and thus could not be sued. Id. at *2. The court reasoned that

counties were considered legal entities and under the express terms of Illinois statutory

law could be sued in court. Id. (citing 55 ILL. COMP. STAT. § 5/5-1001). However,

subdivisions of Illinois counties were not separate legal entities and thus could not be

sued. Id. See also Payne v. Cook County Hospital, 719 F. Supp. 730, 733-734 (N.D. Ill.

1989)(granting motion to dismiss because hospital had no legal existence separate and

apart from Cook County and thus could not be sued, but allowing leave to amend to

name Cook County as a defendant); Mayes v. Elrod, 470 F. Supp. 1188, 1192 (N.D. Ill.

1979)(granting motion to dismiss county board as a separate defendant reasoning that

there was no need to name board as a defendant in addition to the county because the

board’s governmental authority was coextensive with that of the county and its

institutional liability was as well in that it had to pay any judgment rendered against the

county).

The Illinois statutes cited by the Defendant merely serve to confer certain powers

and duties to a county board. The cases cited by the Defendant from the late 19th Century

also stand for the proposition that certain powers, duties, and functions are conferred on

a county board. See, e.g., Wheeler v. Wayne County, 24 N.E. 625, 626 (1890)(noting that

power to contract could only be exercised by county board); Bouton v. Bd. of Supervisors of

McDonough Cnty., 84 Ill. 384, 392 (1877)(noting that “powers of a county, as a body politic,

can only be exercised by the board of supervisors” and not by any one individual

member). Nothing in the aforementioned statutes or cases cited by the Defendant

remotely stand for the proposition that a suit against the county is one against the

county’s board.

The Defendant further argues that these issues over the appropriate defendant

could easily be addressed by having Plaintiff amend her complaint to match her

allegations. (Doc. 120, p. 2). Defendant asserts that Plaintiff has named Defendants

Chapman, Prenzler and Hulme in their individual capacities, but refers to these

individuals in the respective counts against them by their official title. Id. According to

the Defendant, it does not have custody or control over much of what Plaintiff is seeking

in discovery because that information is maintained and controlled by the offices held by

the individuals Plaintiff has named, i.e., the Office of the County Board Chairman and the

Office of County Administrator. Id. Plaintiff, however, has not named Defendants

Chapman, Prenzler and Hulme in their official capacity, and the Court cannot force

Plaintiff to do so. Nor can the Defendant unilaterally declare for itself who the Plaintiff is

suing and respond or refuse to respond to discovery based on who the Defendant

believes that the Plaintiff should be suing. The simple and unavoidable truth is that the

Plaintiff is the master of her complaint. See Caterpillar Inc. v. Williams, 482 U.S. 386, 398-

399 (1987). And, in the instant case, Plaintiff has sued Madison County.

The discussion now turns to the second question to be answered which is whether

the Defendant has the ability to obtain and disclose the requested information through

the discovery process. The Defendant argues that it does not have the ability to obtain the

information requested by the Plaintiff. The Defendant further asserts that it made a good

faith effort to request documents from these officeholders, but it got no response. But, the

statutory authority cited by the Defendant belies such a position. As discussed

previously, county boards have the duty “to take and order suitable and proper measures

for the . . . defending of all suits brought . . . against their respective counties.” 55 ILL.

COMP. STAT. § 5/1-6003 (emphasis added). Such suitable and proper measures surely

include provisions for the conduct of discovery as a lawsuit cannot properly be defended

without engaging in discovery. As such, it stands to reason from this statutory provision

alone that the Defendant has the power and authority to request and obtain information

from various offices and departments within Madison County. For the Defendant to

claim otherwise would render this statutory duty meaningless.

Furthermore, when Section 5/1-6003 is interpreted together with Section 5/5-1004,

the Board’s power over other departments and offices within Madison County becomes

even more apparent. As discussed previously, Illinois courts have interpreted Section

5/5-1004 as conferring on a county board powers co-extensive with that of the county.

This means that the scope of the Board’s powers extends to and covers all of Madison

County. Indeed, this is consistent with the fact that a county board exercises the powers

of the county as a “body politic.” The phrase “body politic”, as used in Section 5/5-1004,

is defined as “a group of persons politically organized under a single governmental

authority.” MERRIAM WEBSTER’S COLLEGIATE DICTIONARY, 10th Ed. (1997) (emphasis

added). Defendant’s interpretation, however, which seeks to treat the legislative and

executive branches of Madison County as separate and distinct legal entities, would

completely undermine the notion of a “single governmental authority” that the phrase

“body politic” conveys. The Illinois statutory scheme clearly does not envision a

circumstance where the Board, at least with respect to the defense of a lawsuit against

Madison County, is powerless over other offices and departments within the County.

Basic agency principles further support a finding that the Defendant is responsible

for obtaining and disclosing the requested information. When it comes to whether the

requested information is in Defendant’s control, the Court finds that it is based on the

statutory authority cited above. The test for control, i.e., whether a party can be compelled

to produce certain documents, is whether the party has a legal right to obtain the

evidence. See Thermal Design Inc v. American Society of Heating, Refrigerating and Air-

Conditioning, 755 F3d. 832, 838-839 (7th Cir. 2014)(citing Dexia Credit Local v. Rogan, 231

F.R.D. 538, 542 (N.D. Ill. 2004). Even though the Defendant claims that it does not

maintain the requested discovery (as it is within the custody and control of the Office of

County Board Chairman and County Administrator), there is nothing suggesting that the

Defendant does not have a legal right to obtain information from those offices to respond

to the Requests for Admissions propounded by the Plaintiff. In fact, it has the statutory

authority and duty to do so.

To avoid this result, however, Defendant relies on a string of cases involving both

the Seventh Circuit and the Illinois Supreme Court where the county was held to be a

necessary party in a lawsuit against an independently elected official. (Doc. 128, p. 1-4).

In Carver v. Sheriff of LaSalle County, Illinois, 243 F.3d 379 (7th Cir. 2001), the Seventh Circuit

identified a recurring question which it asked the Illinois Supreme Court to resolve:

Who pays official-capacity judgments in Illinois when the wrongdoer is an

independently elected officer? Sheriffs, treasurers, clerks of court, and several

other officers within Illinois counties are elected directly by the people and

establish their own policies, but they lack authority to levy taxes or establish their

own budgets. This leads the independently-elected officers to contend that the

counties must pay; but the counties, which are unable to control the conduct of the

officers, insist that they cannot be held liable because an official-capacity judgment

runs against the office and not against an “employee” of the county. The law of

Illinois does not provide a clean solution to this conflict, in which each insists that

the other must pay.

Id. at 381.

The aforementioned question stemmed from a lawsuit where two employees of

the Sheriff of LaSalle County filed suit under Section 1983 and Title VII alleging sex

discrimination and other wrongs. See Carver, 243 F.3d at 381. The plaintiffs initially named

LaSalle County as an additional defendant because of the fact that the sheriff’s budget

derived from the enactments of the county board. Id. Hence, the county would be the

source of any funds to pay a judgment. Id. The county, however, sought and obtained its

dismissal from the case arguing that it could not control and thus should not be

responsible for the sheriff’s activities. Id. After the county exited the case, the sheriff

settled with the plaintiffs for the sum of $500,000. Id.

The sheriff’s office lacked the funds to pay the judgment so the plaintiffs

commenced an action against the county under Rule 69 of the Federal Rules of Civil

Procedure to force the county to indemnify the sheriff’s office or hold the county directly

liable. See Carver, 243 F.3d at 381. The district court initially dismissed the proceeding

indicating that it was not a proper invocation of Rule 69, but the Seventh Circuit reversed

in Carver v. Condie, 169 F.3d 469 (7th Cir. 1999). Id. On remand, the district court dismissed

a second time concluding that the county was not responsible for payment, upon which

the case came back to the Seventh Circuit. Id.

The Illinois Supreme Court agreed to take up the certified question from the

Seventh Circuit and described the question as follows:

Whether, and if so when, Illinois law requires counties to pay judgments entered

against a sheriff’s office in an official capacity. If [the Supreme Court of Illinois]

believes that the answer depends on whether the case was settled as opposed to

litigated, we would welcome treatment of that distinction as well.

Carver v. Sheriff of LaSalle County, 787 N.E.2d 127, 133 (Ill. 2003). Relying on an

interpretation of the Tort Immunity Act, 745 ILCS § 10/1-101, et seq., and the Counties

Code, 55 ILCS § 5/1-1001, et seq., the Illinois Supreme Court concluded as follows:

Under Illinois law a sheriff, in his or her official capacity, has the authority to settle

and compromise claims brought against the sheriff’s office. Because the office of

the sheriff is funded by the county, the county is therefore required to pay a

judgment entered against a sheriff’s office in an official capacity. We further hold

that this conclusion is not affected by whether the case was settled or litigated.

Id. at 141. The Illinois Supreme Court reasoned that a county sheriff’s office was a “local

public entity” within the meaning of the Tort Immunity Act and thus the sheriff, as the

person vested with the authority to make “over-all policy decisions” for the sheriff’s

office, could settle any claim filed against such office. Id. at 138. The Illinois Supreme

Court further reasoned that the county was obligated to pay the judgment under its

interpretation of the Counties Code as the sheriff’s office lacked the authority to levy taxes

or establish a budget and because public funds were appropriated to the sheriff’s office

by the county board. Id. Based on the Illinois Supreme Court’s handling of the certified

question, the Seventh Circuit later noted that a county is a necessary and indispensable

party “in any suit seeking damages from an independently elected county officer (sheriff,

assessor, clerk of court, and so on) in an official capacity.” Carver v. Sheriff of LaSalle

County, 324 F.3d 947, 948 (7th Cir. 2003) (emphasis added).

Based on this line of cases, Defendant argues that the Plaintiff’s requests for

discovery were improperly addressed to Madison County as an entity. (Doc. 128, p. 3).

Defendant relies on the Illinois Supreme Court’s reasoning in Carver where it noted that

the sheriff’s office in its official capacity, and not the County, was the plaintiff’s employer

for purposes of Title VII. Id. at p.2 (citing Carver, 787 N.E.2d at 134). Defendant further

relies on the Illinois Supreme Court’s reasoning which stated that the county sheriff, as

an independently elected official, was a local public entity within the meaning of the Tort

Immunity Act and thus had the independent authority to litigate and settle Title VII

claims. Id. (citing Carver, 787 N.E.2d at 137-139).

From this, Defendant makes a comparison between the local county sheriff and

the County Board Chairman, who are both independently elected officials. Based on this

comparison, Defendant points out that Plaintiff was an employee within the executive

branch of government, “subject to management and control by independently elected

officials, namely the County Board Chairman and his County Administrator.” (Doc. 128,

p. 3). Thus, Defendant reasons that liability for any Title VII violations “attaches to those

independently elected officials in their official capacity[,]” as it did with the Sheriff in

Carver. Id.

But, as for Madison County, Defendant claims that it is only a proper party

because it bears the financial responsibility for paying a judgment. (Doc. 128, p. 3-4).

Defendant further claims that Madison County does not have the authority to approve a

settlement between a Title VII plaintiff and an independently elected official, i.e., the

County Board Chairman. As such, Defendant claims that Madison County does not have

litigation control over the case and thus does not control documents requested in

discovery, which Defendant claims is controlled by the offices of the independently

elected officials. Id. at p. 4. Accordingly, Defendant concludes that the independently

elected officials in their official capacity are the proper defendants, and thus Plaintiff

should be seeking discovery responses from the offices of those officials (as opposed to

Madison County) either by naming them as defendants or by serving subpoenas. Id.

The Carver analysis put forth by the Defendant, however, does not change the

court’s decision. First and foremost, the Carver cases dealt with a very precise question,

i.e., which entity is responsible for paying a judgment obtained against an independently

elected official in his or her official capacity. It has nothing to do with the conduct of

discovery and/or who should be responding to discovery. Second, Defendant ignores

the immediate facts on the ground. The independently elected office holder (i.e., the

Sheriff) in Carver was sued in his official capacity only. Here, on the other hand, the

independently elected office holder (i.e., the County Board Chairman) and other office

holders have been sued in their individual capacities, not their official capacities. And,

unlike Carver, where the county was only brought into the suit to pay a judgment, the

Plaintiff in the instant matter has sued Madison County directly. It is clear from Carver,

that its holdings only apply to official capacity suits against independently elected office

holders and that in such suits the county is on the hook to pay for any judgment that is

obtained against the office holder. As the Amended Complaint is currently constructed,

there is no claim against an independently elected office holder in an official capacity.

However much the Defendant would like to characterize the Plaintiff’s claims in a

different manner, it cannot. Again, the Plaintiff is the master of her complaint.

Defendant also misses another critical distinction discussed by Illinois Supreme

Court in Carver. Defendant focuses on the notion of an “independently elected officer” as

central to its reasoning for why the legislative and executive branches of Madison County

should be treated as separate and distinct legal entities. However, the holding in Carver

was also based on the Illinois Supreme Court’s finding that the sheriff’s office was a “local

public entity” because the sheriff was vested with the “authority to make over-all policy

decisions” for the office of the county sheriff. Carver, 787 N.E.2d at 136. Further

illustrating this point, in Franklin v. Zaruba, 150 F.3d 682 (7th Cir. 1998), the Seventh Circuit

noted that there was an important distinction between general county government and

the county sheriff’s office. Id. at 686. That distinction rested on the fact that the sheriff was

the policymaker for the county’s sheriff’s office, but not for the county itself. Id. at 685.

Here, however, both the executive and legislative branches of Madison County comprise

the general county government, and together they share responsibility for making policy

decisions for all of Madison County. It is thus quite distinct from the example of the

sheriff’s office discussed in Carver. As such, even though the executive branch does

consist of independently elected officials, it is doubtful that the executive branch would

be treated separately as a “local public entity” within the meaning of the Tort Immunity

Act. The Court has found no such authority to support such a novel position, nor has any

been provided to the Court by the parties.

Finally, if the Court were to treat the executive and legislative branches separately

in the manner suggested by Defendant, it would cause confusion and turmoil in the

conduct of discovery involving lawsuits against county governments. Indeed, the Court

has already seen such confusion and turmoil reign supreme in the instant case. Plaintiff

filed her lawsuit against Madison County and the individual defendants in March 2019.

Almost a year and a half later, Plaintiff is still without significant discovery on matters

regarding the termination of her employment. The Seventh Circuit in Carver noted that

“[a] state may not evade compliance by modeling its internal organization after a

huckster’s shell game, so that no matter which entity the plaintiff sues, the state (or its

subdivisions) always may reply that someone else is responsible . . . .” Carver, 243 F.3d at

386. Although this was in the context of the payment of a judgment, a similar situation

has played out here during discovery with the Defendant pointing out that other offices

or departments have the information the Plaintiff is seeking.

Having said that, the Court does understand the argument the Defendant is trying

to make. There very well may be an issue as to the appropriate entity for Title VII liability

as the Defendant suggests. However, the Court is not expressing an opinion nor is it

tasked with resolving that issue. This is an issue that must potentially be resolved by the

district court on a motion for summary judgment or some other dispositive motion where

that issue can properly be placed before the Court.

The only relevant issue before the Court for purposes of this discovery motion is

whether the Defendant has the ability to obtain the information requested by the Plaintiff

through discovery. It is abundantly clear from the statutory scheme discussed above that

the Board has the power to order the various offices, departments, and/or sub-units

within Madison County to provide it with information in defense of the lawsuit filed

against Madison County. Therefore, the Defendant may not resist or object to future

discovery attempts by asserting that the information is within the control of another

office, department or sub-unit within Madison County.

B. Requests for Admissions

1. Defendant’s Objections to Requests for Admissions.

Plaintiff asks the Court to overrule the Defendant’s objections to Request Nos. 2, 3

and 4 of the First Request for Admissions and Defendant’s objections to the Second

Request for Admissions. (Doc. 110, p. 7). The requests at issue are as follows:

Request No. 2 (1st Request): Plaintiff did not work for an entity called

“Administration of Madison County.”

Request No. 3 (1st Request): In 2017, plaintiff worked for Madison County.

Request No. 4 (1st Request): Douglas Hulme was, in 2017, an employee of Madison

County.

Request No. 1 (2nd Request): There is no statutorily created entity called

“Executive Branch of Madison County.”

Request No. 2 (2nd Request): There is no statutorily created entity called

“Executive Branch of Madison County Government.”

Request No. 3 (2nd Request): Plaintiff has never worked for an entity called

“Executive Branch of Madison County.”

Request No. 4 (2nd Request): Plaintiff has never worked for an entity called

“Executive Branch of Madison County.”

Request No. 5 (2nd Request): Douglas Hulme has never worked for an entity called

“Executive Branch of Madison County.”

Request No. 6 (2nd Request): Douglas Hulme has never worked for an entity called

“Executive Branch of Madison County Government.”

(Doc. 110, Exh. 1, 2). Except for Request No. 4 (1st Request), Defendant objected to each of

the above requests by stating: “Defendant objects to this Request as it is not a proper

request under FRCP 36, in that it solely seeks a legal conclusion rather than a fact, the

application of law to a fact, or an opinion about either a fact or an application of law to a

fact.” Id.

Rule 36 of the Federal Rules of Civil Procedure allows a party to serve a request

for admissions “relating to: facts, the application of law to fact, or opinions about

either[.]” FED. R. CIV. PROC. 36(a)(1)(A). The burden is on the party raising the objection

to show that the objection was proper. See Earl v. Xerox Business Services, No. 1:13-cv-

01847-LJM-MJD, 2014 WL 4804279, at *1 (S.D. Ind. Sept. 26, 2014); Moses v. Halstead, 236

F.R.D. 667, 680 (D. Kansas 2006). In her motion, Plaintiff argues that the requests

propounded to Defendant did not solely call for a legal conclusion, but at the very least

involve the application of law to fact. (Doc. 110, p. 5). Defendant’s only response was its

responses “were accurate and adequate to the best of its ability and control[.]” (Doc. 120,

p. 4). The bulk of Defendant’s response in opposition was devoted to the issue of the

appropriate entity to respond to discovery, which was resolved above.

It is true that a request cannot seek admission as to a pure conclusion of law. See

P.L.U.S. Brokerage, Inc. v. Jong Eun Kim, 908 F. Supp. 2d 711, 715 (D. Md. 2012). While the

instant requests appear to involve legal issues, the commentary to the rules approve of

certain admission requests related to such issues. See, e.g., Thompson v. Beasley, 309 F.R.D.

236, 241 (N.D. Miss. 2015)(noting that the commentary approved of admissions related to

certain legal issues, “such as whether an employee acted within the scope of his

employment[.]”). The instant requests are similar to the requests approved of by the

commentary mentioned in Thompson in that they merely seek a response as to whether

the Plaintiff or Defendant Hulme worked for a specific office or entity of Madison

County. The Court therefore overrules the Defendant’s objections to Request No. 2 and

No. 3 of the First Request for Admissions and its objections to Request Nos. 2-6 of the

Second Request for Admissions.

Two of the requests at issue, however, do fall within the category of seeking an

admission as to a pure conclusion of law. Request Nos. 1 and 2 of the Second Request for

Admissions seek an admission as to whether there is a statutorily created entity called

“Executive Branch of Madison County” and “Executive Branch of Madison County

Government.” Defendant’s objections to the instant requests are proper, and its objections

are therefore sustained.

With respect to Request No. 4 of the First Request for Admissions, Defendant

objected stating: “Defendant objects to this Request, as it requests information pertaining

to another Defendant, on whose behalf this Defendant is not required to respond. Thus,

it is an improper request under FRCP 36.” The gravamen of Defendant’s objection is that

it involves another Defendant and as such, the request is more properly directed to that

party. However, that is not a proper objection. See, e.g., Harris v. Koenig, 271 F.R.D. 356,

374 (D.D.C. 2010)(overruling objection that a request was better directed to another

defendant as it was not an answer permitted by Rule 36). The only answers permitted by

Rule 36 are as follows:

If a matter is not admitted, the answer must specifically deny it or state in detail

why the answering party cannot truthfully admit or deny it. A denial must fairly

respond to the substance of the matter; and when good faith requires that a party

qualify an answer or deny only a part of a matter, the answer must specify the part

admitted and qualify or deny the rest. The answering party may assert lack of

knowledge or information as a reason for failing to admit or deny only if the party

states that it has made reasonable inquiry and that the information it knows or can

readily obtain is insufficient to enable it to admit or deny.

FED. R. CIV. PROC. 36(a)(4). See also Frontier-Kemper Constructors, Inc. v. Elk Run Coal Co.,

Inc., 246 F.R.D. 522, 531 (S.D. W. Va. 2007)(noting that only permissible responses are

those set forth in Rule 36). Defendant’s response is clearly not in compliance with Rule

36, and thus, the Court overrules Defendant’s objection to Request No. 4 of the First

Request for Admissions.

2. Defendant’s Responses to Request Nos. 6, 10, 11, 12, 14, 15, 16 and 17 of

the First Request for Admissions.

Rule 36 of the Federal Rules of Civil Procedure permits a requesting party to file a

motion “to determine the sufficiency of an answer or objection.” FED. R. CIV. PROC.

36(a)(6). In that regard, Plaintiff asks the Court to deem as admitted for all the Defendant,

except the elected Board acting in its legislative function, Request Nos. 6, 10, 11, 12, 14,

15, 16 and 17 of the First Request for Admissions. (Doc. 110, p. 7). Each of the

aforementioned requests were directed to Defendant Madison County as a whole.

Defendant responded to these requests by identifying specific departments, offices or

units of Madison County. For example, in Request No. 12, Plaintiff sought an admission

regarding whether Madison County trained Defendant Chapman with respect to sexual

harassment. Defendant responded that the Board of Madison County did not train

Defendant Chapman. (Doc. 110, Exh. 1, p. 3). In Request No. 16, Plaintiff sought an

admission as to whether Madison County trained Defendant Prenzler in conducting a

sexual harassment investigation. Defendant again responded that the Board of Madison

County did not train Defendant Prenzler. Id. at p. 4.

Plaintiff argues that the above requests were directed to Madison County, but the

Defendant limited its answers to the Board or what the Defendant refers to as the

legislative branch of Madison County. (Doc. 110, p. 6). Because the Defendant did not

qualify or deny any part of the admission, Plaintiff asserts that the above requests were

admitted for the entire County. Rule 36 requires that when “a party qualif[ies] an answer

or den[ies] only a part of a matter, the answer must specify the part admitted and qualify

or deny the rest.” FED. R. CIV. PROC. 36(a)(4). The Court, however, has now ruled that the

Defendant (acting through the Board) has the responsibility and duty to respond to

discovery for all of Madison County, which is the defendant that Plaintiff has sued in this

case. Defendant cannot unilaterally limit discovery and/or its responses to the Board or

the legislative branch of Madison County, but must also include the executive branch

even though that branch consists of independently elected officials. In light of this ruling,

it is only fair that the Defendant be given an opportunity to file an amended answer to

these requests (if it so chooses) consistent with the Court’s order. Therefore, the Court

denies Plaintiff's request to deem the aforementioned requests as admitted for all of

Madison County.

CONCLUSION

In light of the above, the Court hereby GRANTS in part and DENIES in Part

Plaintiff's Motion to Determine Sufficiency of Madison County’s Responses to Plaintiff's

First and Second Requests for Admissions (Doc. 110). Defendant Madison County shall

have fourteen (14) days from the date of this Order to produce responses and

supplementary responses consistent with this Order.

IT IS SO ORDERED. >: .

Digitally signed

Dated: September 4, 2020. che .by Judge Sison 2

Son Date: 2020.09.04

16:28:14 -05'00'

GILBERT C. SISON

United States Magistrate Judge

Page 24 of 24