Altemus SB Brief

I-829112.108/08/2008

IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF VIRGINIANewport News DivisionTERESA L. ALTEMUSPlaintiff,v.C.A. No.: 4:08-cv-5GLOUCESTER COUNTY SCHOOL BOARD,

Et Al

PLAINTIFF TERESA ALTEMUS’ BRIEFIN OPPOSITION TO DEFENDANTS’MOTION FOR SUMMARY JUDGMENTI.PRELIMINARY STATEMENT

This case arose from a simple matter, whichcould have been easily resolved in theabsence of egos and small-town politics. Unfortunately, not only have the Defendants refused tograntPlaintiff Teresa Altemus’ very reasonable request, but they have also utterly refused toeven meet with her over the past three years. Plaintiffis employed as a TechnologyAssistant(“TA”)for the Gloucester CountySchoolBoard.Since 1993 she has also beenan electedmember of the Gloucester County Board of Supervisors(“BOS”),currently serving as its chair.The BOSis the bodyresponsible for appropriating and approving the School Board’s budget.Plaintiff’spolitical responsibilities sometimes require her to be absent fromher job for short periods during normal working hours. Pursuant to School Board PolicyGBG, the School Boardclassifies the time Plaintiffmisses as unpaid time off. This decreased compensation isahardship to Plaintiff, but she doesnot expect tobepaid for time in which she does not work, andfor years she did not know that there was an alternative under which other employees wereallowed to earn the full scope oftheir contractualcompensation, under similar circumstances.However, in 2005 Plaintiff learned that the SchoolBoard had allowed another TA tomake-up time she missed during normal schoolhours. This employee had to miss approximately

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seven hours per week, but was allowed to make up these hours either before or after normalschoolhours. Thus, this employee, unlike Plaintiff, was able to earn the full scope of her compensation.After learning about the benefit provided to other employees, Plaintiff made asimple request. She wanted to be allowed to make up time she missed while servingon the BOS, just as other employees had been allowedto dofor non-political activities.The Defendantshaverepeatedly denied Plaintiff’srequestson the sole basis thatthe timePlaintiff misses is for

politicalreasons.

They havealsoignored numerousletters from Plaintiff and her attorney asking only that she be given a meeting to explain her position.Meanwhile,Defendants have described Plaintiff’spolitical activities as “vile,” “ruthless,” “undignified,” and“illegal,” and they have accused the BOS itself of treating the School Board “like dirt.” TheDefendants’politicalanimus against Plaintiff is so strong, that they have chosen to face a lawsuitinstead of giving Plaintiff ten minutes to explain her request at a School Board meeting.In denying Plaintiff’s request solely on the basis of politics, Defendants have violatedPlaintiff’s rights under the First and Fourteenth Amendments. Separately, the Defendant SchoolBoard has breached Plaintiff’s employment contract by failing to pay her for all of the hours theyrequired her to work.

II.LISTING OF DISPUTED FACTSAND ARGUMENT REGARDINGDEFENDANTS’ FAILURE TO COMPLY WITH LOCAL RULE 56(B)A.The Court Should Deny Defendants’ Motion for Failure to ComplywithLocal Rule 56

LocalRule 56(B) requires a defendant moving for summary judgment to include in its brief, “a specificallycaptionedsection listingall materialfacts as towhich the moving partycontends there is no genuine issue and citing the parts of the record relied on to support the listedfacts as alleged to be undisputed.” It is crucial that a defendant comply with Rule 56(B), becausethis rule also requires a plaintiff tospecifically list whichofthe defendant’salleged undisputed

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facts remain indispute. Failure of a plaintiff to disputeeach factlisted bythedefendant as beingallegedly undisputedcan result in these factsbeing taken as admitted. Id.Defendants in this case have utterlyfailed to complywitheither the text or spirit ofRule56(B). Defendants’brief does notinclude a specifically captioned section listing which factstheyclaimareundisputed.Even the body of Defendants’ brief fails to identify with specificitywhich

facts

theycontend are undisputed. Instead, Defendants’brief largely contains sweeping

legal

statements such as “there are no material facts in dispute that the Plaintiff’s requests… arenot constitutionally protected.” (SeeDefendants’ Briefin Support at pg. 12.)Courts in theEastern District have stated on numerous occasions that failure to abide by Local Rule 56(B)“may resultin the dismissal of the motion” for SummaryJudgment. Wilkins v. Clary

,No.CIV.A 3:01CV79,2005WL 1705211(E.D.Va.July 5, 2005), aff’d, 216 Fed. Appx. 322 (4

th

Cir.2007); seealsoDirecTV, Inc. v. Key, NO. CIV.A 3:03CV321, 2003 WL 24336355(E.D.Va.Dec. 31, 2003)(dismissing Defendant’s Motion for Summary Judgment in part based on failureto comply with localrule 56.), aff’d, 133 Fed. Appx. 877 (4

th

Cir. 2005).Plaintiff has beenprejudiced by Defendants’ violation ofLocalRule 56. It is difficult if not impossible to determine which

facts

Defendants claim are undisputed.This is especially so because the section of Defendants’ brieftitled “Facts” only includes seven alleged facts, all of which merely cite to Plaintiff’s Complaint. SeeDefendants’ Memo in Support at pgs1-2.Moreover,both parties are also bound by Local Rule7(F)which requires that all briefs belimited to no more than 30 pages in length. While Defendants’lack of compliance with Rule56(B)allowed them to begin their legal argument on page 2 of their brief, Plaintiff hascompliedwithRule 56(B) spending fifteen pages listing the facts in dispute in this case.For these reasons,

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