Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

Case 3:03-cv-00977-CFD

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT WENDELL HARP and ARCHITECTS ENVIRONMENTAL COLLABORATIVE INTERNATIONAL, P.C., Plaintiffs, v. JOHN DeSTEFANO, CITY OF NEW HAVEN and NEW HAVEN BOARD OF EDUCATION, Defendants. : : : : : : : : : : : : : :

CASE NO: 3:03CV977(CFD)

MAY 5, 2006

DEFENDANTS' MEMORANDUM IN OPPOSITION TO MOTION TO STRIKE In their Local Rule 56(a)2 Statement (doc. # 71), Plaintiffs, Architects Environmental Collaborative International, P.C. ("AECI") and Wendell Harp ("Harp") moved to strike certain of the undisputed facts set forth in Defendants' Local Rule 56(a)1 Statement submitted in support of their pending Motion for Summary Judgment. As summarized below and as set forth more fully in Defendants' Response to Plaintiffs' Local Rule 56(a)2 Statement, attached hereto as Exhibit A, Plaintiffs' claims that the challenged facts are based upon inadmissible hearsay are entirely without merit. Thus, Plaintiffs' motion to strike should be denied in all respects.1 Plaintiffs primarily challenge statements by members of the Board of Education concerning what they had learned from others regarding AECI's poor performance under the contract. These statements, however, are clearly admissible and relevant. It is well established
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Notably, Plaintiffs failed to submit a written memorandum of law in support of their motion to strike, in contravention of D. Conn. L. Civ. R. 7. In many instances, Plaintiffs fail to offer any legal support at all for their request to strike the challenged facts. For these reasons alone, Plaintiffs' motion to strike should be denied. See D. Conn. L. Civ. R. 7(a)1 ("Failure to submit a memorandum may be deemed sufficient cause to deny the motion.").

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that testimonial reports of statements by third parties are not hearsay where, as here, the statements are offered not for the truth of the matter asserted, but rather, to demonstrate the motivation for the Board's decision to terminate AECI's contract. See Barrett v. Orange County Human Rights Comm'n, 194 F.3d 341, 347-48 (2d Cir. 1999) (in § 1983 case alleging that plaintiff was fired in retaliation for exercising constitutionally protected speech, out of court statements by county commissioners concerning plaintiff's improper conduct were properly admitted, not for the purpose of establishing whether the third parties' statements were true, but rather to assist defendants in demonstrating that they were motivated by plaintiff's behavior and not by his comments on politically sensitive issues, noting that "[t]he very fact that according to the commissioners these statements were made tends to establish that it was [plaintiff's] behavior, not his speech, that animated the defendants"); Cameron v. Community Aid for Retarded Children, Inc., 335 F.3d 60, 65-66 (2d Cir. 2003) (defendant employer was entitled to rely upon complaints from third parties regarding plaintiff's improper conduct in defense of discriminatory termination claim, expressly noting "[b]ecause these statements are not used to prove the truth of the matter asserted, but to establish [the decisionmaker's] state of mind, they are not hearsay as [plaintiff] contends"). Thus, the challenged statements concerning AECI's poor performance clearly are admissible and there is no basis upon which to strike same. Plaintiffs also move to strike the undisputed facts concerning the statements by the members of the Board of Education regarding the reasons for their decision to terminate AECI's contract, arguing that the mental state of a member of a legislative body at the time of a vote is

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irrelevant and inadmissible.2 The cases cited above illustrate that the state of mind of the decisionmakers is the central issue in this First Amendment retaliation case. Where, as here, the central issue is the allegedly retaliatory motive of the defendants, there is no basis for excluding the statements of the members of the Board of Education regarding their motivations in voting to terminate AECI's contract, as such evidence is highly relevant to the liability of Defendants in this case. See Locurto v. Safir, 264 F.3d 154, 168 (2d Cir. 2001) (intent is an element of a First Amendment retaliation claim); see, e.g., Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004) (cited by Plaintiffs) (considering testimony by members of a board of education of their nonretaliatory reasons for termination decision in § 1983 case and observing: "Each member of the Board . . . stated that his or her decision had nothing to do with Love-Lane's speech. LoveLane thus offers no evidence that the Board punished her, let alone was aware of, her opposition to race discrimination at Lewisville."). Accordingly, there is no basis upon which these statements may be disregarded. Plaintiffs' Local Rule 56(a)2 Statement also challenges Defendants' characterization of certain documentary evidence submitted in support of their Motion for Summary Judgment,

As an initial matter, the cases cited by Plaintiffs do not stand for the proposition that the mental state of a member of a legislative body is inadmissible. Bogan v. Scott-Harris, 523 U.S. 44 (1998), stands for the proposition that there is no § 1983 liability if a city's council and its mayor act in a legislative capacity; Harhay v. Town of Ellington Bd. of Ed., 323 F.3d 206, 210-11 (2d. Cir. 2003), stands for the proposition that a Board of Education enjoys absolute immunity when it acts in a legislative capacity but not when it acts in an administrative capacity; and Ritz v. Town of East Hartford, 110 F. Supp. 2d 94, 97 (D. Conn. 2000), which is most likely no longer good law in view of Harhay, stands for the proposition that a Board of Education cannot enjoy legislative immunity. Thus, if this law were applicable, the Board of Education would enjoy absolute immunity for its actions at issue in this case. This is besides the point, however, as in this case, the Board of Education in terminating AECI's contract was acting in an administrative capacity rather than a legislative capacity. See Harhay, 323 F.3d at 211 (where board of education acts with respect to an individual situation rather than promulgating broad prospective policy, it is considered to be acting in an administrative rather than a legislative capacity, and is therefore not entitled to absolute immunity under § 1983).
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although Plaintiffs did not move to strike the evidence. As illustrated further in Defendants' Response to Plaintiffs' Local Rule 56(a)2 Statement attached behind Exhibit A, a review of the documents themselves demonstrates that the challenged documents are fairly characterized. More importantly, Plaintiffs have offered absolutely no evidence to dispute Defendants' statement of facts referencing these documents, and, thus, Defendants' statements should be deemed admitted. See D. Conn. L. Civ. R. 56(a)3. Plaintiffs' Local Rule 56(a)2 Statement also raises many other unfounded objections to the evidence submitted by Defendants in support of their Motion for Summary Judgment. Defendants' Response to Plaintiffs' Local Rule 56(a)2 Statement attached as Exhibit A addresses each of Plaintiffs' objections and responses to the undisputed facts of this case. For the foregoing reasons, as well as the reasons set forth in Defendants' Response to Plaintiffs' Local Rule 56(a)2 Statement, Plaintiffs' Motion to Strike certain of the undisputed facts set forth in Defendants' Local Rule 56(a)1 Statement should be denied.

DEFENDANTS, JOHN DESTEFANO, CITY OF NEW HAVEN and NEW HAVEN BOARD OF EDUCATION By: /s/ Carolyn W. Kone Carolyn W. Kone (ct06207) Rowena A. Moffett (ct19811) BRENNER, SALTZMAN & WALLMAN LLP Their Attorneys 271 Whitney Avenue New Haven, CT 06511 Tel. (203) 772-2600 Fax (203) 772-4008 Email: [email protected] Email: [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on May 5, 2006, a copy of the foregoing was manually filed with the court and served via U.S. Mail upon the following:

John R. Williams Katrena Engstrom Law Offices of John Williams & Associates 51 Elm St., Ste. 409 New Haven, CT 06510 Jennifer C. Vickery Assistant Corporation Counsel City of New Haven 165 Church Street New Haven, CT 06510

___/s/ Carolyn W. Kone Carolyn W. Kone

_______

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