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JOHNSON v. RAULAND-BORG CORP.

April 11, 1997

CLARE M. JOHNSON, Plaintiff,
v.
RAULAND-BORG CORPORATION, Defendant.



The opinion of the court was delivered by: ALESIA

 This matter is before the Court on Plaintiff Clare M. Johnson's motion to compel discovery and to bar testimony. For the reasons set forth below, the motion is granted in part and denied in part.

 I. BACKGROUND

 Plaintiff Clare Johnson was employed at Defendant Rauland-Borg Corporation for approximately fifteen years. She began her employment as a secretary and was eventually promoted to an executive secretary.

 In the spring of 1989, Johnson reported directly to Carl Cox -- Rauland-Borg's vice president of engineering. Beginning in 1991, Johnson alleges that Cox began to sexually harass her. Additionally, Kenneth James -- Rauland Borg's chief operating officer -- and other male managers allegedly began to sexually harass her. The harassment continued into the summer of 1995. In July of 1995, Johnson resigned from Rauland-Borg, claiming that she could no longer endure the sexually hostile work environment.

 Immediately following her resignation, Rauland-Borg retained Judith Gaston -- an outside attorney specializing in labor law -- to investigate Johnson's allegations of sexual harassment.

 Johnson initiated this action claiming that she was sexually harassed in violation of Title VII, 42 U.S.C. ยง 2000e, et seq.

 II. DISCUSSION

 Johnson's motion contains three general requests. She wants: (1) to prevent Gaston -- an outside attorney -- from testifying at trial as to her opinion as to whether Johnson was sexually harassed; (2) to depose Gaston and all those she interviewed in connection with her investigation of whether Johnson's allegations of sexual harassment were meritorious; and (3) the production of statements obtained by Gaston and reports generated by Gaston in the course of her investigation.

 In response, Rauland-Borg asserts that: (1) it does not intend to introduce Gaston's testimony at trial to establish that Johnson was not sexually harassed, rather, to show only that it conducted a prompt and reasonable investigation of Johnson's allegations and perhaps to impeach the testimony of interviewed employees and (2) it does not object to the deposition of Gaston, the depositions of the interviewed employees, *fn1" the production of statements obtained by Gaston, or reports generated by Gaston. There is one caveat to Rauland-Borg's concessions, however. Rauland-Borg concedes that Johnson is entitled to the requested information, but it asserts the attorney-client privilege with respect to the legal advice provided by Gaston regarding her investigation. In other words, Rauland-Borg has no problem with providing the requested information regarding the substance and specifics of Gaston's investigation, but it does not want to turn over any information regarding the legal advice rendered as a result of the investigation.

 In reply, Johnson is still upset with Rauland-Borg's decision to call Gaston to testify at trial regarding the fact that she investigated Johnson's allegations. Johnson argues that Gaston should be prohibited from testifying at trial because her testimony will, at least implicitly, invade the province of the jury. *fn2" Additionally, Johnson wants the legal advice Gaston provided to Rauland-Borg following her investigation; Johnson claims that Rauland-Borg waived the attorney-client privilege regarding such information.

 A. Gaston's Testimony

 Under Title VII, an employer is not strictly liable for the sexual harassment of one worker by another. Baskerville v. Culligan Int'l Co., 50 F.3d 428, 431 (7th Cir. 1995). Indeed, the criterion for when an employer is liable for sexual harassment is negligence. Id. at 432. Specifically, the employer is liable if it knew or should have known about the harassment and failed to take appropriate remedial action. ...


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