Biediger et al v. Quinnipiac Univ

Filing 38

TRANSCRIPT of Proceedings held on 4/17/09 before Judge Stefan R. Underhill. Court Reporter: Susan E. Catucci. Type of Hearing: Pretrial Conference. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 6/4/2009. Redacted Transcript Deadline set for 6/14/2009. Release of Transcript Restriction set for 8/12/2009. (Catucci, S.)

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1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT ----------------x STEPHANIE BIEDIGER, ET AL vs. QUINNIPIAC UNIVERSITY : : : : : : No. 3:09cv-621 (SRU) 915 Lafayette Boulevard Bridgeport, Connecticut April 17, 2009 ----------------x HEARING B E F O R E: THE HONORABLE STEFAN R. UNDERHILL, U. S. D. J. A P P E A R A N C E S: FOR THE PLAINTIFFS: PULLMAN & COMLEY 850 Main Street P.O. Box 7006 Bridgeport, Connecticut 06601-7006 BY: JONATHAN B. ORLEANS, ESQ. ALEX V. HERNANDEZ, ESQ. FOR THE DEFENDANT: WIGGIN AND DANA, LLP 400 Atlantic Street P. O. Box 110325 Stamford, Connecticut 06911-0325 BY: MARY A. GAMBARDELLA, ESQ. JONATHAN BARDAVID, ESQ. Susan E. Catucci, RMR Official Court Reporter 915 Lafayette Boulevard Bridgeport, Connecticut 06604 Tel: (917)703-0761 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Monday. week. (2:50 O'CLOCK, P. M.) THE COURT: Good afternoon. We're here in the matter of Stephanie Biediger v. Quinnipiac University. Could I have appearances, please? MR. ORLEANS: Your Honor, for the plaintiffs, Jonathan Orleans and Alex Hernandez from Pullman & Comley. MS. GAMBARDELLA: For the defendant, Mary Gambardella and John Bardavid from Wiggin and Dana. THE COURT: All right, thank you. I wanted to start by setting a date for the preliminary injunction hearing. May 11th look? MR. ORLEANS: THE COURT: I beg your pardon, Your Honor? How does the week of The week of May 11th? I believe it's okay with MR. ORLEANS: plaintiffs. May I have just a second? (Pause) MR. ORLEANS: Yes, Your Honor, we can do that MS. GAMBARDELLA: Monday would be fine. THE COURT: Your Honor, anything but that Let me press you a little bit on That's my best day that week. MS. GAMBARDELLA: THE COURT: I can move it. You're sure? 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor? 9:30. MS. GAMBARDELLA: THE COURT: Yes. Let's set it down for Monday at I have most of Tuesday available as well and my hope is we can finish it in those two days. MS. GAMBARDELLA: That was 9:00 a. m., your THE COURT: Let's make it 9:30. All right, thank you. MS. GAMBARDELLA: MR. ORLEANS: THE COURT: Monday, the 11th is the Monday? And we'll Monday, May 11th at 9:30. have to talk about what we're going to do between now and then. Mr. Orleans, with that preliminary injunction schedule set, what type of temporary relief are you seeking? MR. ORLEANS: Your Honor, with that schedule set for the preliminary injunction hearing, it seems to me that it's probably not wise for us to push on the Temporary Restraining Order for all of the relief that we have requested in our papers. We would certainly like to see our plaintiffs -- and if I may, Your Honor, may I just point out that Stephanie Biediger, Kayla Lawler and Erin Overdevest are here in the courtroom, along with Coach Robin Sparks who sits at counsel table. THE COURT: Very good. We would certainly like to see the MR. ORLEANS: 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 members of the team given permission to practice with their coach, which has been denied them since early March. THE COURT: that. All right. Let me press you on I received the defendant's memorandum just before My taking the bench and I went through it quickly. recollection is there's a representation that the team has been permitted to use the gym. MS. GAMBARDELLA: Is that -- Your Honor, if I may, in the original papers what was represented was they weren't allowed in the gym, period. We're responding to that. But to be totally forthright with the court, what I'm now hearing may be a reference to the fact that the coach, she's being paid through June 30th, through her contract. She was asked not to work on campus. The reason for that, and I'll just state it for the record, is that, according to my clients, there was more time spent trying to get other coaches to join this effort and other students to join this effort than there was coaching. So, if the claim now is being modified that they are not being denied gym time but it's being denied time with the coach, we'd like to be heard on that. MR. ORLEANS: Let me respond to that in two Prior to March 4th, the ways, if I might, Your Honor. team was scheduled for practice in the gym on a daily basis at 12:30 for three hours, two or three hour blocks. 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I've got the schedules with me. After March 4th, the team Intermural was not scheduled for practices in the gym. volleyball is now scheduled in the gym in the evenings but that's intermural volleyball, it's not practice for the team. The coach was asked not to practice with the team, was instructed that she could not practice with the team. If the suggestion is that that request is somehow justified because the university was concerned about her efforts to oppose discrimination, it seems to me that that is on its face retaliatory and not permissible. Moreover, Coach Sparks is a faculty member at the university. She teaches a class, she has an office. In that capacity, we would submit that she's entitled to be on campus in her office preparing for her class. And since this program ostensibly is not dead until the end of this academic year, she ought to be able to practice with her team. The team members are being harmed by losing the opportunity to practice with their coach. MS. GAMBARDELLA: THE COURT: I'm sorry -- Go ahead. Two points on that. Number MS. GAMBARDELLA: one, I don't think anything I said even remotely suggests retaliation. this. What I said, in case I wasn't clear, was The university, as an employer, as it is entitled 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to do, is trying to manage and avoid disruption. number one. That's It was in good faith believed that in the context of her duties as coach, there was disruption. Number two, with respect to formalized practices in the gym, a temporary restraining order is not suitable for that kind of relief. This is a Fall sport. Between now and May 11, to suggest that the team will be so irreparably harmed that this court should issue a restraining order, a mandatory injunction, telling the school they can't -- they must have them practice, irrespective of what else is going on in the gym, irrespective of what other resources have already been affected -- this is not just a matter of the status quo. There were other programs that were disbanded, too. programs. What do we do with them? THE COURT: through. Okay, but let me just try and cut Men's And I understand that both sides are understandably concerned about the situation and the litigation, but it seems to me that we're talking about a period of approximately three weeks. It would, I think, behoove everybody if this little issue about practicing with the coach in the gym for whatever time they had been scheduled for could be resolved. I believe -- I really don't want to have a TRO hearing on the question of -MS. GAMBARDELLA: Practice. 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: at the gym. -- practice with the volleyball team That being said, I also think it would be in everybody's interest if the university permitted that practice to proceed for the next three weeks or so until the hearing. At that point, if nothing more, it's It's putting a little bit of mitigating the situation. oil on water. It's letting everybody do their thing without presumably any great disruption to the university because this was the plan until recently. So, I'm going to request of the university that they consider permitting this voluntarily to occur. That is, to have regular practices as they would have had up through the hearing date or through a ruling date, and I'm going to rule quickly. MS. GAMBARDELLA: May I inquire of opposing counsel what is the representation on the record as to how many practices would normally transpire in three weeks in April for a Fall sport. MR. ORLEANS: The representation is, Your Honor, my client will correct me if I'm wrong, that there would be daily practices through May 2nd, which is the week before finals and they don't practice during the week before final exams or during finals weeks. So we're really just talking about the time period between now and May 2nd, this coming week. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. GAMBARDELLA: MR. ORLEANS: Just this week? Just the coming week, five days. Okay. So I guess my only I MS. GAMBARDELLA: concern then is I will take your request to my client. will impress upon them Your Honor's wishes in this regard and your opinion in this regard and give that deference, of course, as I always would, but I have to check whether or not we're bumping anybody else. concern. What I am more than happy to do is advise opposing counsel -- today's Friday -- Monday, if you give me until Monday to see whether or not that's feasible. If That's my only we're only talking about the next five days, I would then submit to Your Honor I find it hard to fathom that harm would be so immediate, dangerous and irreparable, that if they miss some daily practices -- how long a day? hour, two hours? MR. ORLEANS: Two to three hours per day. A couple hours per day the An MS. GAMBARDELLA: next five days, they're going to suffer from irreparable harm. However, that being said, I will convey Your Honor's request. THE COURT: that done now? All right. Is it possible to get Do you have someone you can call? I can make a call. I forgot MS. GAMBARDELLA: 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 my bar card; they took my phone. MR. ORLEANS: THE COURT: I can use my phone. Let's just get that part sorted out. That may lower the temperature a little bit and may not be a bad thing. MR. ORLEANS: I will make the representation according to the schedule, which is available through the internet, that nothing else has been scheduled for the gym. That doesn't mean something's been scheduled that hasn't been posted. MS. GAMBARDELLA: That doesn't anticipate the reaction I may get, which motivated the request to begin with, that this not occur, that the plaintiff coach be canvassed that this is not an opportunity to elicit litigants. She can do that on her own time. She's an American, she's got First Amendment rights, she can do that. What she cannot do is, on my client's dime, on our salary, is to utilize work time to do anything but practice with the team. THE COURT: point's been made. Well, okay. I mean I think that The litigation has been filed and, you know, whether I have, what, five plaintiffs or ten plaintiffs, the same issues are going to get litigated. don't think there's any great advantage to anybody in adding names to the caption of the case, but maybe I'm I 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wrong. MR. ORLEANS: The only -- we anticipate possibly adding another recruit, a current high school student who has been recruited to play at Quinnipiac but we're not anticipating adding any more Quinnipiac current students to the caption. with her team. All Coach Sparks wants to do is practice She's not looking to use the time to do any more organizing. THE COURT: All right, I appreciate that. Why don't you make your phone call and -MS. GAMBARDELLA: Well, the only reason I hesitate, is there any other interim relief I need to discuss? I'd rather not make five phone calls. THE COURT: I don't believe so. I don't -- we'd like some sort of MR. ORLEANS: continued assurance -- as I understand it, Your Honor, up until now, the team, although they haven't been allowed to practice, they've still had access to the weight room, they had access to the trainers. change. MS. GAMBARDELLA: My clients have no intention We don't want that to of altering the status quo and I mean status quo today, not status quo in February. But if -- and so what I'm hearing now is an acknowledgement they've been given gym privileges and we have no intention of revoking that. 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ORLEANS: I'm not sure that gym privileges accurately describes it but, in any event, what we're looking for is the opportunity to practice. MS. GAMBARDELLA: altering that status quo. THE COURT: Okay. Why don't you make your phone My client has no intention of call quickly, if you could, and then there are logistical issues we have to take up. MS. GAMBARDELLA: Am I representing to my client Five if we can work something out for the next five day? weekdays, right? (Pause) MR. ORLEANS: Let me look. Counsel? If the court will indulge me, I'll look at my calendar. MS. GAMBARDELLA: MR. ORLEANS: That would be great. It was so much easier in the days we had paper calendars rather than Blackberries. (Pause) MR. ORLEANS: We're talking about Monday, April We'd like to be The following the 20th through Saturday, April 25th. able to practice everyday in that period. week is the week before finals so there won't be any practice. MS. GAMBARDELLA: And if my client reaches some voluntary agreement in this regard, you're withdrawing 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 your TRO request? MR. ORLEANS: With respect to that. Well, again, I don't want to MS. GAMBARDELLA: make five phone calls. THE COURT: What else -- if you receive that agreement, what other relief do you need between now and May 11th? MR. ORLEANS: THE COURT: (Pause) MR. ORLEANS: indulgence. Your Honor, thank you for your May I have a moment? Sure. After conferring with the clients, that's really the only thing we need between now and the 11th would be the ability to practice. THE COURT: So the TRO would be withdrawn? Yes. I appreciate that. If I may MR. ORLEANS: MS. GAMBARDELLA: have a few minutes and borrow your phone? Garfinkel will let me use his. MR. ORLEANS: There you go. Unless Judge MS. GAMBARDELLA: (Pause) MS. GAMBARDELLA: Thank you, sir. Your Honor, as a showing in good faith, my clients are going to agree to arrange that. THE COURT: Very good. Thank you very much. 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And, as I said, hopefully that will help us move forward toward the May 11th hearing. MS. GAMBARDELLA: And so I take it for the record that the request for temporary restraining order is withdrawn with prejudice at this time? MR. ORLEANS: Yes -- with prejudice, I'm not sure what exactly what that means. MS. GAMBARDELLA: Well, I don't want to come back Monday with another TRO. MR. ORLEANS: We're not going to come back Monday with another TRO unless -- if the university honors its promise, we won't be back here until the preliminary injunction hearing. Could I just get some clarification? told what time? MS. GAMBARDELLA: it. MR. ORLEANS: Are we back on for 12:30 everyday? He didn't seem concerned about No, no, he said we'll arrange Were we MS. GAMBARDELLA: whatever time you needed to schedule. MR. ORLEANS: THE COURT: Okay. Thank you both. Good, thank you. All right, let's talk some logistics for the hearing. First off, what discovery, if any, do the parties want to undertake between now and then? 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ORLEANS: Well, Your Honor, from the plaintiff's side, I think we want to do some expedited document discovery. We'll try to keep it limited but certainly there's statistical information which we'd like to get a hold of regarding participation rates, some information about this alleged reorganization plan, some information about the purported financial consequences of the reorganization, as it's offered its justification for the decisions that the university made. So we would be We would keep looking for some quick document discovery. it as limited as we reasonably could and I think we would probably like to take the depositions of the athletic director and the women's sports administrator before the hearing. Again, we'll keep those as short as we can. We're not trying to stretch this out. MS. GAMBARDELLA: Your Honor, for the defendant, understandably I assume some expedited discovery would be in order but I am going to anticipate, based on what I've just heard, some significant discovery disputes about what's relevant and what is not relevant for the purposes of a preliminary injunction hearing. You read the papers, I don't need to educate you about what's in the papers, but our argument is that they are entitled to do this. their roster. They are entitled to manage They have eliminated two men's sports as 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 well, and so I would like to consult with counsel on what during deposition is going to be asked. That is really -They've we're talking about the next academic year. played this year. This academy year, this volleyball season is over, as far as I understand it, so we're talking about the next academic year. In terms of the roster for next year, I agree counsel's entitled to back-up information on whether the numbers are real, and therefore, whether the proportions meet prong one of the test under Title 9. Beyond that, I have no problem talking with counsel but I don't want to waive any disputes or any objections to the scope of the anticipated expedited discovery. THE COURT: All right. Well, what was just mentioned seems relatively discrete, and the standard is reasonably calculated to lead to the discovery of admissible evidence. I didn't hear anything that struck me as obviously outside the range of what should be discoverable. who knows. I mean I haven't seen the requests yet, so Can the plaintiff But let me suggest this. pull together focused discovery requests and serve them Monday? MR. ORLEANS: THE COURT: Yes, Your Honor. And can the defendant All right. object, if they wish to, by Tuesday? 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. GAMBARDELLA: THE COURT: Yes, Your Honor. And respond, either to the extent not objected to or to the extent those objections are overruled, by Friday? MS. GAMBARDELLA: Obviously it depends on the So to the extent breadth, not just the subject matter. there's back-up documentation he's going to ask for, we'll respond and then we can indicate if there's some additional time needed to actually produce the documentation. expedited. We'll expedite -- we understand this is This is not an attempt to delay this at all. Let's try and get your objections, THE COURT: if you have them -- MS. GAMBARDELLA: THE COURT: Yes. -- by the end of the day on Tuesday the 21st, and I will hear those objections either Wednesday or Thursday, depending on how extensive they are and so forth. And hopefully we can get production Friday or Monday, which would leave a little time for depositions. Can each side be limited to 14 hours of deposition in between now and the hearing? MR. ORLEANS: Absolutely, Your Honor. I don't I would anticipate using that much for the two witnesses. want to reserve the opportunity to perhaps come back to those witnesses again if the case isn't finally 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 determined? THE COURT: Of course. But for purposes of the MR. ORLEANS: preliminary injunction hearing, I think I can do my two witnesss in one day. THE COURT: I'll do my best to do that. All right. So let's -- it sounds like it's more than necessary but let's limit each side to 14 hours of deposition. MS. GAMBARDELLA: Yes, Your Honor. I'm not sure I'm going to need it for an injunction in this case. THE COURT: I'd like to get from you in advance of the 11th a sense of who your witnesses are going to be, how long they are going to take, what stipulations you can reach, what exhibits you're going to be submitting. mean the typical pretrial logistics. Obviously with a preliminary injunction hearing I'm going to urge counsel to do what you can to reach stipulations, to try and limit testimony, agree to the admission of exhibits, et cetera. So, in the first I instance I'm going to ask you to try to do that on your own, but it seems to me we ought to have a pretrial conference at least a couple days before the 11th. about 3:30 on the afternoon of the 7th? MS. GAMBARDELLA: the defendant. That's fine, Your Honor, for What 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 recess. MR. ORLEANS: THE COURT: I can do that, Your Honor. Okay. So would you want the MS. GAMBARDELLA: submissions by the day before or the morning of the conference or -THE COURT: It would be nice to have what amounts to a pretrial memo in effect the day before. MS. GAMBARDELLA: THE COURT: Okay. What else can we usefully do today? I think we pretty well covered it, MR. ORLEANS: Your Honor. THE COURT: All right, thank you both. I think we're fine. Let me urge you if you MS. GAMBARDELLA: THE COURT: All right. have any disputes that come up, scope of discovery, not getting documents produced in a timely way, trouble getting a date for a deposition, whatever it might be, please call me. If I'm not available, I'll get back to you as quickly as I can and we'll get this resolved right away. MS. GAMBARDELLA: MR. ORLEANS: THE COURT: Thank you, Your Honor. Thank you, Judge. We'll stand in Thank you all. 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Whereupon the above matter was adjourned at 3:20 o'clock, p. m.)) 20 CERTIFICATE I, Susan E. Catucci, RMR, Official Court Reporter for the United States District Court for the District of Connecticut, do hereby certify that the foregoing pages are a true and accurate transcription of my shorthand notes taken in the aforementioned matter to the best of my skill and ability. /S/ Susan E. Catucci __________________________ Susan E. Catucci, RMR Official Court Reporter 915 Lafayette Boulevard Bridgeport, Connecticut 06604 Tel: (917) 703-0761

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