Haffer v. Temple University of Commonwealth System of Higher Education

115 F.R.D. 506, 39 Educ. L. Rep. 643, 1987 U.S. Dist. LEXIS 1612
CourtDistrict Court, E.D. Pennsylvania
DecidedMarch 2, 1987
DocketCiv. A. No. 80-1362
StatusPublished
Cited by11 cases

This text of 115 F.R.D. 506 (Haffer v. Temple University of Commonwealth System of Higher Education) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Haffer v. Temple University of Commonwealth System of Higher Education, 115 F.R.D. 506, 39 Educ. L. Rep. 643, 1987 U.S. Dist. LEXIS 1612 (E.D. Pa. 1987).

Opinion

MEMORANDUM

JOSEPH S. LORD, III, Senior District Judge.

BACKGROUND

This is a class action alleging unlawful gender discrimination in Temple University’s intercollegiate athletic program. The plaintiff class consists of “[a]ll current women students at Temple University who participate, or who are or have been deterred from participating because of sex discrimination in Temple’s intercollegiate athletic program.” The parties have engaged in lengthy and voluminous discovery. In October 1986, class counsel Arthur Bryant began to schedule meetings with women’s intercollegiate athletic teams. Plaintiffs allege that certain communications from Temple to class members and potential witnesses have discouraged [508]*508class members from meeting with Bryant. Presently before me is plaintiffs’ motion to remedy, prohibit and impose sanctions for defendants' unethical and improper communications with plaintiff class members and potential witnesses (“plaintiffs’ motion”). An evidentiary hearing was held on December 19 and December 23, 1986. After careful consideration of the evience and numerous briefs, I conclude that defendants’ actions were improper, and will order appropriate remedies and sanctions.

FACTS

Bryant began to arrange and hold team meetings in October 1986. Members of different teams asked their coaches whether they were required to attend these meetings. Most coaches simply stated that it was up to each individual to decide whether to attend the meetings. At least one coach mistakenly instructed his team that “they were free to meet with [class counsel] ... but that Temple’s attorneys have the right to be present at any such meeting.” Affidavit of Peter Daub (head coach of the women’s tennis team). Daub also asked team members to inform Temple when any meeting was scheduled. After learning that an assistant basketball coach made comments that allegedly dissuaded class members from attending a meeting scheduled for October 27,1986, Bryant contacted Temple University’s Associate Counsel, Stephen Bosch. Bryant informed Bosch of the basketball coach’s comments, and requested that Bosch inform the coaches that Bryant was scheduling team meetings. Bryant asked Bosch to tell the coaches not to discuss the meetings, or the lawsuit, with class members. Bosch promised to investigate the matter.

Later that day, Bosch called Bryant and proposed that Temple communicate with class members regarding the lawsuit and meetings. Bosch read a draft memo to Bryant, and suggested that Eve Atkinson distribute the memo at team practice sessions. Atkinson is Associate Director for Women’s Intercollegiate Athletics and a named defendant. Bryant strongly objected to dissemination of the memo. He told Bosch that the memo was “misleading and inaccurate in several respects, that it would seriously disrupt [Bryant’s] ability to meet and communicate with plaintiff class members, and that distribution of the memo would constitute a serious ethical violation.” Plaintiffs and defendants’ stipulations of fact in regard to plaintiffs’ motion to remedy, prohibit and impose sanctions for defendants’ unethical and improper communications at 2 (“stipulations”). Bryant understood that the memo would not be distributed over his objections. Stipulations at 2.

Nonetheless, at Bosch’s direction and with Bosch’s knowledge, stipulations at 2, Atkinson distributed the memo at team meetings held on October 27, 29 and 30, 1986. Atkinson also made a brief statement concerning the lawsuit to class members, see Affidavit of Eve Atkinson (“affidavit”), and “solicited and responded to questions from the athletes present.” Stipulations at 2.

Bosch did not send a copy of the memo to Bryant. Bryant learned of the memo when a class member forwarded a copy, approximately nine days after distribution. Bryant called Bosch to demand that such communications stop, and to ask how Bosch proposed to remedy the memo’s alleged effect of discouraging class members from meeting with Bryant. Bosch suggested that both attorneys address the women’s basketball and tennis teams. After Bryant rejected this suggestion, Bosch stated that he would speak to the teams even if Bryant was not present.

At Bryant’s request, I held a phone conference on November 7, 1986. After counsel outlined the above facts, I ordered that Bosch have no further communications with plaintiffs regarding the subject matter of this lawsuit.

THE HEARING

At the hearing on the instant motion, plaintiffs sought to prove that Atkinson’s remarks, made while distributing the memo, were inaccurate, and discouraged [509]*509class members from meeting with class counsel. However, despite valid service of a subpoena, Atkinson was not present at the hearing. The events leading to Atkinson’s absence warrant discussion.

On December 10, 1986, class counsel deposed Atkinson. Bosch prohibited inquiry into the subject matter of the instant motion. In so doing, Bosch acted without a suggestion of legal authority to support him. On December 11, 1986, Bryant informed Bosch that plaintiffs wanted to question Atkinson at the hearing on plaintiffs’ motion scheduled for December 19, 1986. Bosch said that he would produce Atkinson and that a subpoena would not be necessary. On December 12, 1986, Bryant wrote to Bosch to confirm that a subpoena would not be necessary to secure Atkinson’s presence at the hearing. On December 16, 1986, Bosch informed class counsel that Atkinson would be unable to attend the hearing. Counsel discussed the possibility of scheduling Atkinson’s deposition. Plaintiffs’ counsel was unable to come to Philadelphia for a deposition but offered to take the deposition in Washington, D.C. at Atkinson’s convenience. Bosch refused to schedule a Washington, D.C. deposition. On December 16, 1986, plaintiffs served a subpoena compelling Atkinson’s appearance at the hearing.

On December 17, 1986, Bosch informed class counsel that he was planning to file a motion to quash the subpoena. Class counsel renewed their offer to depose Atkinson in Washington, D.C. Bosch did not consider this to be a “serious” proposal, and no deposition was scheduled. On December 18, 1986, Bosch served a motion to quash on plaintiffs’ local counsel. On December 19, 1986, the morning of the hearing, Bryant received this motion. At the hearing, I attempted to investigate Bosch’s role in Atkinson’s decision to ignore the subpoena. It became evident that, at the very least, Bosch acquiesced in Atkinson’s decision not to attend the hearing. Bosch’s behavior, in this regard, was inexcusable. I granted plaintiffs’ oral motion that adverse inferences be drawn from Atkinson’s failure to appeal. Class counsel submitted an “offer of proof in regard to testimony of Eve Atkinson” in support of their claims regarding Atkinson’s remarks to class members. Plaintiffs state that Atkinson distributed a memo, entitled “LOYALTY,” to all coaches and staff of the women’s intercollegiate athletic department at her first staff meeting.1 The memo reveals that Atkinson has extraordinarily strong feelings concerning institutional loyalty. Further, as Atkinson stated in her affidavit, she believes that the named plaintiffs have “long since abandoned [Temple] University” and that Bryant has attempted to “turn [class members] against Temple University.” Affidavit at 5.

Moreover, as an administrator and “as a woman, [Atkinson has] taken great pains ... to ensure that female student athletes receive treatment equal to the male student athletes.” Affidavit at 5.

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Bluebook (online)
115 F.R.D. 506, 39 Educ. L. Rep. 643, 1987 U.S. Dist. LEXIS 1612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haffer-v-temple-university-of-commonwealth-system-of-higher-education-paed-1987.