Free Reply to Response to Motion - District Court of Connecticut - Connecticut

Case 3:01-cv-02404-DJS

Document 89

Filed 11/12/2003

Page 1 of 5

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT CHRISTOPHER CLOUSTON, MARSHALL McGUIGAN, Plaintiffs, v. ON TARGET LOCATING SERVICES, ENERGY EAST CORP., and UNION WATER POWER COMPANY, Defendants.

) ) ) ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO.: 01-CV-2404 (DJS)

NOVEMBER 12, 2003

REPLY TO OPPOSITION TO DEFENDANTS' MOTION TO STRIKE CERTAIN EXHIBITS Plaintiffs' Opposition to Defendants' Motion to Strike Certain Exhibits presents no legally sound basis for denying Defendants' motion. Nevertheless, this reply is necessary, unfortunately, to correct inaccurate representations in the Opposition. I. THE AFFIDAVITS Plaintiffs assert that "Defendant has claimed that Plaintiffs Christopher Clouston and Marshall McGuigan were demoted because ofcomplaints of harassment by employees they supervised." Plaintiffs' Memorandum in Opposition [to] Defendants' Motion to Strike at pp. 12. This statement is inaccurate. Plaintiff Clouston was demoted because he failed to meet a condition of his promotion, namely, to move to Connecticut within the required time period, and for his poor performance. Clouston was never reprimanded for harassing or overbearing conduct toward subordinates. ~ Defendants' Memorandum in Support of Motion for Summary Judgment and Affidavit ofJeff Melcher.

Case 3:01-cv-02404-DJS

Document 89

Filed 11/12/2003

Page 2 of 5

McGuigan was reprimanded for overbearing conduct toward subordinates. His supervisor, Jeff Meicher, testified at his deposition and has given an affidavit attesting to the reasons for McGuigan's demotion. McGuigan had failed to correct his behavior following his written reprimand and he continued to exhibit poor supervisory skills and intimidating conduct toward subordinates. McGuigan ignored Company directives and did not work as a team player. ~ Defendants' Memorandum in Support of Motion for Summary Judgment and Affidavit of

JeffMelcher. Co-workers' opinions of a plaintiff's job performance are irrelevant. "The biases ofone who neither makes nor influences the challenged personnel decision are not probative in an employment discrimination case." Holfield v. Reno, 115 F.3d 1555, 1563-64 (11th Cir. 1997). See also Robertson v. The Home Depot, 976 F. Supp. 1467, 1476 (S.D.Fla. 1997) (ex-employee affidavits not probative); Hines v. Hillside Children's Center, 73 F. Supp. 2d 308, 315 (W.D.N.Y. 1999) (employee's subjective opinion about his own qualifications is insufficient to give rise to a triable issue of fact concerning employer's proffered reason for its actions); Layaou v. Xerox Corp., 999 F.Supp. 426, 432 (W.D.N.Y.1998) (same); Shapolia v. Los Alamos Nat'l

J~ik~, F.2d 1033, 992

1039 (10th Cir.l993) (employee's own assessment of his job performance is

inadequate to raise issue of fact for trial); Billet v. CIGNA Corp., 940 F.2d 812, 825 (3d Cir.1991) ("The fact that an employee disagrees with an employer's evaluation of him does not prove pretext.").

Case 3:01-cv-02404-DJS

Document 89

Filed 11/12/2003

Page 3 of 5

Plaintiffs' use of the word "harassment" has been a red herring in this lawsuit. This is not a sexual harassment case or one that involves harassment on the basis of any protected class.' Plaintiffs' use of affidavits alleging sexual or racial harassment, expressing opinions about Plaintiffs' job performance and expressing opinions about Tim Moore, Plaintiffs' former supervisor, are not probative of any issue in this case. The opinions expressed in the affidavits are irrelevant and prejudicial to Defendants. Because the affidavits have no probative value or relevance whatsoever to this lawsuit, and are prejudicial to Defendants, they should be stricken. IL DEPOSITION TESTIMONY OF DEBRA BUETTEL. Plaintiffs assert that Debra Buettel's notes were usedto refresh her recollection. The transcript belies this assertion. As the transcript indicates, Ms. Buettel read from her notes and those of other claims adjusters. This is hearsay and Ms. Buettel's testimony should be stricken. IlL THE HANDBOOK Plaintiff McGuigan's failure to identify the Handbook at his deposition is fatal to his assertion now that his Handbook did not contain a disclaimer. This failure is magnified by the fact that the deposition at which McGuigan did not identify the Handbook was scheduled expressly for the purpose ofhaving Plaintiffs identify the documents they finally produced after Defendants filed a motion to compel, which this Court granted. At least Plaintiff Clouston had the integrity at his deposition to answer that his handbook contained a disclaimer.

`The claims where plaintiffs' job performance is arguably relevant are the retaliation claims for

exercising free speech rights under Conn. Gen. Stats. § 31-51q, filing a worker's compensation claim (McGuigan only), and under ERISA.
3

Case 3:01-cv-02404-DJS

Document 89

Filed 11/12/2003

Page 4 of 5

IV.

CONCLUSION For these reasons and those set forth in Defendants' Memorandum of Law in Support of

the Motion to Strike, Plaintiffs' exhibits fail to comply with Fed. R. Civ. P. 56(e) and should therefore be stricken.

THE DEFENDANTS, ON TARGET LOCATING SERVICES, ENERGY EAST CORP., and UNION WATER POWER COMPANY,

;

L~i, ~

Patricia E. Reilly Federal Bar # CT08352 TYLER COOPER & ALCORN, LLP 205 Church Street, P.O. Box 1936 New Haven, Connecticut 06510-1910 Phone: (203) 784-8200 Facsimile: (203) 789-8069 E-mail: [email protected]

4

Case 3:01-cv-02404-DJS

Document 89

Filed 11/12/2003

Page 5 of 5

CERTIFICATE OF SERVICE

This it to certify that a copy ofthe foregoing has been mailed, postage prepaid, to all counsel and p~se parties of record:

Francis D. Burke, Esquire Manginess & Burke, LLC 1115 Main Street, Suite 708 Bridgeport, Connecticut 06604

on this 12th day of November, 2003.

I

2
./~

/

/

Patricia E. Reilly (CT 08352)

5