Email Admissibility — Hearsay Statements of Principal to Coaches Advising They Consult Counsel Not within Scope of Her Employment with School — Co-Conspiracy Exception Requires Factual Predicate That Conspiracy Exists

Bigge v. Dist. Sch. Bd. of Citrus Cnty., 2015 U.S. Dist. LEXIS 31181 (M.D. Fla. Mar. 13, 2015):

Plaintiffs William Bigge, Karen Bigge, Wayne Canfield, and Laurie Canfield are the parents of three female former students at Citrus High School.1 Between December 2008 and January 2009, while their daughters were students at the school, the Plaintiffs lodged complaints with the Defendant, School Board of Citrus County, Florida ("the School Board") and the Department of Education's Office of Civil Rights, alleging that three male coaches of the Citrus High School Girls' Junior Varsity Soccer Team were creating a gender-based hostile environment by making numerous sexually inappropriate comments directed towards their daughters [*2]  and other female students.2 The Plaintiffs assert that after they complained, the School Board engaged in a pattern of retaliation against them and their daughters.

1   The female students, Stacey Bigge, Karen Bigge, and Angelica Seaman, have all graduated from high school and reached the age of majority.

2   Citrus High School is within the geographical boundaries of the School Board of Citrus County.

In 2011, the daughters filed a complaint in this Court alleging retaliation under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681, et seq. ("Title IX"). See Bigge v. District School Board of Citrus County, Florida, Case No. 5:11-cv-210-Oc-10TBS ("the 2011 case"). The daughters alleged that they were constructively discharged from the soccer team, threatened with a transfer to another high school located in another school district, and that the soccer coaches threatened their parents with a defamation lawsuit. The Plaintiffs were not parties to that case and did not assert any claims for relief on their own behalf. That litigation ultimately settled, and judgment dismissing the 2011 case with prejudice was entered on September 17, 2012 (the 2011 case, Doc. 43).

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C. The Alleged Retaliation

It is undisputed that as a result of the complaints by the Plaintiffs, relations between the Plaintiffs and Coaches Castorina and Eldridge became hostile. Simply put, the parents and the coaches did not like each other. At some point during the course of the School Board's investigation, Castorina and Eldridge [*9]  hired a private attorney, Karen Gaffney. On January 28, 2009, Ms. Gaffney sent separate cease and desist letters to Mr. Bigge and Mr. Canfield, placing both of them on notice "that any further libelous, slanderous and/or defamatory comments, statements or writings that you choose to publish with respect to [Castorina and Eldridge] will result in the filing of an immediate action against you for monetary damages resulting from your actions." (Doc. 32, Ex. E, pp. 12-13, 25-26). The cease and desist letters were addressed to Mr. Bigge and Mr. Canfield only, and do not reference or discuss their spouses. There is no evidence in the record that either Castorina or Eldridge ever filed a lawsuit against Mr. Bigge or Mr. Canfield.6

6   Mrs. Bigge avers in her Affidavit that in October 2011 she was interviewed by a local news station regarding Castorina, and during that interview she alleged that Castorina sexually harassed her daughter, Kathryn Bigge, while she was a student at Citrus High School (Doc. 32, Ex. B, ¶ 11). As a result of that televised interview, Castorina hired a separate attorney, Bernard Dempsey, who sent Mrs. Bigge a cease and desist letter in March 2012 (Id., ¶ 12). In June 2012, [*10]  Mr. Dempsey filed a defamation lawsuit against Mrs. Bigge on behalf of Castorina (Id., ¶ 13). Mr. Bigge corroborates these facts in his Affidavit (Doc. 32, Ex. G, ¶ 16). Although the Bigges assert that this 2012 cease and desist letter and subsequent lawsuit are part of the School Board's purported pattern of retaliation against them, this argument fails. By their own testimony, the Bigges admit that the 2012 cease and desist letter and lawsuit are directly and exclusively related to Mrs. Bigge's October 2011 television interview (and the Plaintiffs have not established or even suggested that a television interview constitutes protected activity under Title IX). There is also a complete lack of any evidence from which a reasonable jury could infer that the 2012 cease and desist letter and lawsuit are tied in any way to the School Board. Moreover, the 2012 cease and desist letter and lawsuit occurred more than three years after the Bigges engaged in protected conduct when they complained to the School Board and the Department of Education. Such a lengthy hiatus is fatal to any argument that the events are directly and causally related to the events of 2009. The Court will therefore [*11]  not give the 2012 incidents any further consideration.

The Plaintiffs contend that Castorina's and Eldridge's actions in hiring a private attorney to send the two cease and desist letters were actually done at the behest and direction of the School Board. Specifically, the Plaintiffs assert that Leigh Ann Bradshaw, then Principal of Citrus High School, instructed the two coaches to hire an attorney and sue the Plaintiffs for slander and defamation, as part of the School Board's pattern of retaliation against the Plaintiffs. As support for this assertion, the Plaintiffs have submitted two emails. The first, dated December 2, 2008, is from Ethan Eldridge to his wife, Natalie Eldridge (Doc. 7, Ex. 1). The email states, in relevant part, that "Mrs. Bradshaw met with Andrew this morning and . . . . Mrs. Bradshaw said it would be in his best interest to recontact his lawyer from the ID theft case last year and press slander and [defamation] of character against ALL four. Gatto, Trick, Bigge, and [Canfield] . . . . cha-ching." (Id.).7 The second email, dated January 26, 2009, is from Anthony Castorina to Ethan Eldridge and states in part:

   Leigh Ann just called me into her office. Apparently [*12]  Bigge filed a complaint against the school board with the Office of Civil Rights Complaint. She asked me to write down which JV players came up or moved down in the past 2 years. I told her what I knew and made sure to tell her that Bigge said she didn't want to play Varsity before the Trinity game because she didn't like the girls on the team.

She also suggested that Karen call Wes to see if we can use the Office of Civil Rights as ammo against Bigge and Canfield.8

7   The Parties appear to agree that "Andrew" is referring to Castorina.

8   The Parties agree that "Karen" is referring to Ms. Gaffney, and "Wes" is referring to Wes Bradshaw, the School Board's general counsel.

There is no evidence in the record that Ms. Bradshaw or anyone else employed by the School Board ever communicated with Attorney Gaffney regarding Castorina or Eldridge; or retained Ms. Gaffney or paid for her legal services in relation to the facts of this case; or directed Ms. Gaffney to draft and/or send the cease and desist letters; or ever suggested to her that she pursue any other legal strategies.9 Ms. Bradshaw denies ever making any of these statements to Castorina or Eldridge; denies encouraging either coach to hire [*13]  an attorney; and denies ever mentioning Ms. Gaffney by name. (Doc. 54, Ex. E). Andrew Castorina also testified at his deposition that the decision to hire Ms. Gaffney was made by him, that Ms. Bradshaw did not recommend Ms. Gaffney to him, and that he did not discuss his decision to hire an attorney with Ms. Bradshaw. (Doc. 54, Ex. B). At most, Castorina mentioned at some point in time to Ms. Bradshaw that he was meeting with an attorney. (Id.). And while Eldridge testified at his deposition that Ms. Bradshaw may have told him to contact the Office of Civil Rights, he does not state whether he heeded that advice. In any event, whatever statements might have been made by Castorina or Eldridge in this context would be objectionable hearsay with regard to the School Board.

9   There is evidence that Ms. Gaffney was hired by the School Board on prior occasions to represent the School Board at employee termination proceedings wholly unrelated to this case.

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E. The Cease and Desist Letters

Turning to the merits of the School Board's motions, they first challenge the Plaintiffs' claims of retaliation relating to the January 28, 2009 cease and desist letters sent by Castorina's and Eldridges' private attorney, Ms. Gaffney. The School Board argues that Castorina and Eldridge acted in their capacity as private individuals, who hired a private attorney, to potentially pursue a private lawsuit against Mr. Bigge and Mr. Canfield. The coaches were not acting as agents of [*44]  the School Board and, therefore, their actions cannot be imputed to the School Board as a retaliatory threat.

The evidence in this case -- or rather the lack of evidence -- strongly supports the School Board's position. There is no admissible record evidence from which a reasonable jury could infer that anyone representing the School Board ever spoke to Ms. Gaffney, retained her services, drafted and/or reviewed the cease and desist letters, or were otherwise involved in the coaches' representation by Ms. Gaffney. The Plaintiffs also have not argued or presented evidence that the School Board could itself sue the Plaintiffs for slander or defamation, or could have prevented the coaches from pursuing such a private cause of action. More importantly, the Plaintiffs have not argued or demonstrated how Castorina's and Eldridges' private actions in hiring an attorney and sending the cease and desist letters could be considered within the scope of their agency as then employees of the School Board. Simply put, this is a situation where two private individuals engaged the services of an attorney, to pursue a lawsuit on their own behalf. It defies logic that such private actions could be considered [*45]  retaliation on the part of the School Board.

The Plaintiffs attempt to rescue this claim by referencing three pieces of evidence: (1) the portions of Mr. Bigge's affidavit discussing his purported 2013 conversation with Mr. Richardson; (2) the December 2, 2008 email from Eldridge to his wife; and (3) the January 26, 2009 email from Castorina to Eldridge. The portions of Mr. Bigge's affidavit have been stricken as inadmissible hearsay and cannot be considered further. The two emails suffer the same fate.31

31   It should be noted that none of the coaches were made parties to this action, nor were they parties in the 2011 litigation.

The December 2, 2008 email from Eldridge to his spouse details a purported conversation Eldridge had with Castorina, in which Castorina relays a conversation he had with Ms. Bradshaw about hiring an attorney to pursue a defamation lawsuit (Doc. 54, Ex. C). The email is being offered for the truth of the matter asserted -- that Ms. Bradshaw directed Castorina to hire an attorney and pursue litigation against the Plaintiffs. Moreover it is hearsay within hearsay: (1) the purported statement by Ms. Bradshaw to Castorina; and (2) the purported statement by Castorina to [*46]  Eldridge. The Plaintiffs have not shown that either Ms. Bradshaw's or Castorina's statements (i.e. offering legal advice) were made within the course and scope of their employment with the School Board; therefore their statements cannot be considered admissible statements of a party opponent. See Fed. R. Evid. 802(d)(2)(D); Wilkinson, 920 F.2d at 1566. The statements are also not capable of being reduced to admissible form, as both Ms. Bradshaw and Castorina have testified in their respective depositions that they never made any of the statements alluded to in the December 2, 2008 email. See Doc. 54, Ex. B, pp. 15-18; Ex. E, pp. 29, 63. See also Jones, 683 F.3d 1283, 1293-94.

The Plaintiffs' reliance on the January 26, 2009 email between Castorina and Eldridge is even more tenuous. In that email, Castorina stated that Ms. Bradshaw "suggested that Karen call Wes to see if we can use the Office of Civil Rights as ammo against Bigge and Canfield." (Doc. 54, Ex. F). It would stretch all logical boundaries to infer from this lone statement that the School Board was directing Castorina's and Eldridges' private litigation against the Plaintiffs. Moreover, this email is also hearsay -- as again, the Plaintiffs have failed to present any evidence that this purported statement [*47]  by Ms. Bradshaw was made within the scope of her employment with the School Board, and Ms. Bradshaw has testified at her deposition that she never made any such statement.

The Plaintiffs argue that these emails should be admissible under Fed. R. Evid. 802(d)(2)(E) as being made by a coconspirator during and in furtherance of a conspiracy. In order for Rule 802(d)(2)(E) to apply, the Plaintiffs must present evidence that: (1) a conspiracy existed; (2) the conspiracy included the declarant and the defendant against whom the statement is offered; and (3) the statement was made during the course of an in furtherance of the conspiracy. See United States v. Underwood, 446 F.3d 1340, 1345-46 (11th Cir. 2006). Although Plaintiffs' counsel makes numerous bald and inflammatory assertions of a vast conspiracy between nearly every member of the Citrus County School District, the Plaintiffs have not supported these assertions with any admissible evidence. Indeed, the only mention of a conspiracy not made by Plaintiffs' counsel rests in the previously stricken portions of Mr. Bigge's affidavit. The emails are thus hearsay and cannot be considered in support of the Plaintiffs' claim.

Even if the emails were not inadmissible hearsay, the content of the emails simply does not create a material issue of fact [*48]  sufficient to defeat summary judgment. At most, these emails show Ms. Bradshaw suggesting that Castorina and Eldridge consult with a private attorney. There is no other evidence in this case -- and the Parties have had more than enough time to locate such evidence if it existed -- that anyone at the School Board did anything more than this. There is no evidence that the School Board counseled spiteful or vexatious litigation, and to hold that the mere suggestion to seek legal counsel equates to a materially adverse action to support a retaliation claim does not find any precedential support. To the contrary, advising persons to consult a lawyer and utilize the legal system during a period of conflict is clearly preferable to allowing persons to engage in activities that could dramatically escalate the conflict into injurious conditions. In sum, referring two private persons to an attorney is not an adverse action for which the Plaintiffs can pursue a Title IX retaliation claim, and no reasonable jury could think otherwise. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415 (2006) (Title VII retaliation does not set forth "a general civility code," and does not protect against "petty slights, minor annoyances, and simple lack of good manners."). [*49]

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