The opinion of the court was delivered by: ANTHONY J. BATTAGLIA
The above entitled cause came regularly for trial on February 23, 1995 at 9:00 a.m. in Department F of the above entitled Court, the Honorable Anthony J. Battaglia, Magistrate Judge presiding, without jury. Consent by the parties to trial by Magistrate Judge pursuant to 28 U.S.C. § 636(c) was filed on January 3, 1995. Plaintiff, LEE M. HALL, appeared by and through his attorney of record, Lloyd Edward Tooks. Defendants, CITY OF BRAWLEY and RODGER L. BENNETT, appeared by and through their attorney of record, Dennis Morita.
This issues tried in this matter are raised in the parties pleadings as well as stated in the Pre-trial Conference Order on file.
1. Were defendants motivated, in whole or in part, by Plaintiff's race (Caucasian) in deciding to re-interview and test candidates for the Streets and Utilities Maintenance Supervisor position on March 3, 1994?
2. Were defendants motivated in whole or in part, by Plaintiff's race (Caucasian) when they selected Tony Verdugo for the Streets and Utilities Maintenance Supervisor position effective March 15, 1994?
3. Did defendants terminate Plaintiff's employment with defendant City of Brawley because Plaintiff filed an employment discrimination complaint against the City of Brawley with the Equal Employment Opportunity Commission?
4. Did Defendants terminate Plaintiff's employment with Defendant City of Brawley because Plaintiff did not sign Exhibit "B" to the FAC?
5. Did Defendant City of Brawley refuse to interview Plaintiff for the Utility Lead Person position (a) because Plaintiff filed an employment discrimination complaint against the City of Brawley with the Equal Employment Opportunity Commission, and/or (b) because Plaintiff did not sign Exhibit "B" to the FAC?
6. Did Defendant City of Brawley refuse to select Plaintiff for the Utility Lead Person position (a) because Plaintiff filed an employment discrimination complaint against the City of Brawley with the Equal Employment Opportunity Commission, and/or (b) because Plaintiff did not sign Exhibit "B" to the FAC?
After hearing the testimony, and reviewing the documentary evidence and the agreed facts as set forth in the Pre-trial Conference Order as well as stipulated to by counsel at the hearing, and considering the arguments of counsel, the Court now makes the following findings based on the credible evidence and their reasonable inferences to be drawn therefrom. These findings were made based upon a preponderance of the credible evidence.
1. Lee Marvin Hall (hereinafter "Plaintiff") is over the age of twenty-one (21) years and his race/national origin is Caucasian.
2. Defendant City of Brawley (hereinafter "City") is a municipal corporation, duly incorporated under the laws of the State of California.
3. Defendant Rodger L. Bennett (hereinafter "Bennett") is now, and at all times relevant to the instant action was, the City Manager of the City.
4. On or about August 3, 1993, Plaintiff was hired by the City as an Engineering Technician. The appointment was "temporary" as defined by the Personnel Rules of the City. A temporary appointment is paid hourly and is not eligible for benefits provided "regular" employees. Further, a temporary appointment such as Plaintiff's is contemplated not to exceed six (6) months in duration.
5. In December of 1993 Plaintiff applied, and was a candidate for, a position within the City's Public Works Department entitled Streets and Utilities Maintenance Supervisor (hereinafter "Streets Supervisor").
6. There were two (2) other candidates for the Streets Supervisor position. Both of the other candidates were "regular", "non-probationary" employees of the City. The race/national origin of one of the other candidates, Martin Stemple, is Caucasian. The race/national origin of the third candidate, Tony Verdugo, is Hispanic.
7. The examination/selection process consisted solely of an oral interview. The oral interview panel was made up of three (3) persons: Rodger Bennett, City Manager, Fred Selk, City Finance Director, and Alvin Smith of the City water treatment facility.
9. On or about January 13, 1994, Tony Verdugo and Martin Stemple filed employment grievances pursuant to the Memorandum of Understanding between the City and the Brawley Employees' Association.
10. The grievances alleged, among other things, that the selection of Plaintiff to the Streets Supervisor position was "Race/Class discrimination..." and constituted a "failure to follow affirmative action guidelines...." The grievances further contended that as a temporary employee, Plaintiff was not eligible to compete for the Streets Supervisor position on an in-house basis citing Section 502 of the Personnel Rules of the City.
11. The solution proposed by Verdugo and Stemple included, among others, removal of Plaintiff from the position and appointment of Verdugo.
12. In accordance with the Memorandum of Understanding between the City and the Brawley Employees' Association, Rodger Bennett, as City Manager, investigated the grievances and rendered a written decision.
13. In his decision, Bennett concluded that the selection process for the Streets Supervisor position should be conducted again. Bennett instructed the personnel department to schedule interviews and develop a written examination relating to the skills identified in the position description to be asked uniformly of each participant.
14. In reaching his conclusion, Bennett determined the City had not followed its normal selection process in the December oral interview and as contemplated by Section 501 of the Personnel Rules of the City which provides:
"The selection techniques used in the examination process shall be impartial and relate to those subjects which, in the opinion of the Personnel Officer, fairly measure the relative capacities of the persons examined to execute the duties and responsibilities of the class to which they seek to be appointed. Examinations shall consist of selection techniques which will test fairly the qualifications of candidates such as, but not necessarily limited to, achievement and aptitude tests, other written tests, personal interviews, references, performance tests, physical agility tests, evaluation of daily work performance, work samples, medical tests, psychological tests, successful completion of prescribed training, or any combination of these or other tests. The probationary period shall be considered as a portion of the examination process. Examinations shall be designed to provide equal opportunity to all candidates by being based on analysis of the essential requirements of the class, covering only factors related to such requirements."
15. Notwithstanding Section 502 of the Personnel Rules of the City which states, in part, that "Only regular non-probationary employees who meet the requirements set forth in the promotional examination announcements may compete in promotional examinations," Bennett denied those portions of the Stemple/Verdugo grievances which sought to eliminate Plaintiff from competing for the Streets Supervisor position. Bennett found that Section 902 of the Personnel Rules authorized him to include "in-house" applicants and not only "regular, non-probationary" employees in the applicant pool.
16. On or about March 1, 1994, Plaintiff was advised that on March 3, the City would test and re-interview candidates for the Streets Supervisor position, the position held by Plaintiff at that time. Among the candidates who ...