The opinion of the court was delivered by: Joseph C. Spero United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION, DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION, GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR LIMITED REOPENING OF DISCOVERY, AND GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO EXCLUDE EVIDENCE [Docket Nos. 94, 110, 107, 114]
On Friday, March 4, 2005, at 1:30 p.m., a hearing was held on the following motions in this case:
1) Defendant's Motion For Partial Summary Judgment ("Defendants' Summary Judgment Motion"); 2) Plaintiff's Motion for Summary Judgment/Summary Adjudication ("Plaintiff's Summary Judgment Motion"); 3) Plaintiff's Motion for Limited Reopening of Discovery; and 4) Plaintiff's Motion to Exclude Evidence. For the reasons stated below, the Court rules as follows: 1) Defendants' Summary Judgment Motion is GRANTED in part and DENIED in part; 2) Plaintiff's Summary Judgment Motion is DENIED; 3) Plaintiff's Motion for Limited Reopening of Discovery is GRANTED in part and DENIED in part; 4) Plaintiff's Motion to Exclude Evidence is GRANTED in part and DENIED in part.
Plaintiff, Van I. Irion, a Caucasian male who is a veteran of the United States Air Force, submitted an application for a position as a firefighter with Contra Costa County Fire Protection District in September 2000. See Defendants' Table of Contents of Exhibits, Index of Exhibits, and Exhibits in Support of Motion for Summary Judgment or Summary Adjudication ("Defendants' Exhibits"), Ex. 10 (Employment Application).
The process for obtaining a position as a firefighter with Contra Costa County Fire Protection District involves several steps, which are set forth in the County's Personnel Management Regulations ("PMRs"). See Defendants' Exhibits, Ex. 11 (PMRs). First, applicants are given a written test, a physical agility test and an interview with the County Department of Human Resources, the results of which are combined to come up with a score for each applicant. See id. In addition, for veterans who apply for it, a 5% Veterans' Preference Credit is added to this score. Id. The applicants are then grouped into Band A, Band B or Band C, where Band A contains the most qualified applicants, Band B contains applicants who are "well qualified for the class, but not as qualified as those candidates placed in Band A," and Band C contains applicants who are "qualified for the class, but not as qualified as those candidates placed in Bands A or B." Id. (PMR §605.4). Candidates in Band A are interviewed by a Chief's Interview Panel, which then makes hiring recommendations to the Fire Chief. Declaration of Webster Beadle ("Beadle Decl.") at ¶ 2. Under the PMRs, when "there are fewer than nine (9) more names available in Band A than the number of vacancies to be filled," Band B may be certified. Defendants' Exhibits, Ex. 11 (PMR § 719). At this point, the Band B candidates are invited to a Chief's Interview and additional hiring recommendations are made from the pool of the Band B candidates and the remaining Band A candidates. Id. (PMR § 801).
Based on this system, and including the Veteran's Preference Credit, Irion received an overall score of 95.03% and was placed in Band A, which contained a total of 80 applicants. Van Irion's Declaration in Support of Plaintiff's Motion for Summary Judgment ("Irion Summary Judgment Decl."), Ex. 61 (July 30, 2001 Final Results Notice); see also Defendants' Exhibits, Ex. 1 (List of candidates in Bands A, B and C, reflecting that Irion was ranked 9th of all candidates in these Bands ("Eligible List")).
Once the candidates were placed in Bands, the Band A candidates were interviewed by three panelists in a Chief's Interview during October 2001 to hire firefighters for Academy Class 34. Beadle Decl., ¶ 2. Sixty-one of the 80 Band A candidates showed up at the Chief's Interview. Defendants' Exhibits, Ex. 7 (Beadle's List of Applicants Who Cancelled or Failed to Show Up at Chief's Interview ("Cancellation List")). Of the 61 candidates who showed up at the interview, 9 claimed a veteran's credit. Defendants' Exhibits, Exs. 1 (Eligible List) & 7 (Cancellation List). The racial composition of these 61 candidates was as follows: 33 white/Caucasian; 4 African American; 15 Hispanic; 2 Asian/Pacific Islander; 1 Filipino; 3 American Indian/Alaskan and 3 of unknown ethnicity. Id. The Chief's Interview panelists then made recommendations regarding which applicants should be hired for Academy Class 34. Beadle Decl., ¶ 2. Thirty candidates were recommended and were given conditional offers of employment. Defendants' Exhibits, Ex. 2 (List of Recommended Band A Candidates). Of these 30 candidates, the racial composition was as follows: 15 white/Caucasian; 3 African American; 7 Hispanic; 1 Asian/Pacific Islander; 1 Filipino; 2 American Indian/Alaskan and 1 of unknown ethnicity. Id. One individual who claimed a Veteran's Preference Credit was recommended. Id. Twenty-three were actually hired for Academy Class 34. Defendants' Exhibits, Ex. 6 (December 13, 2001 Beadle Memorandum, stating that 23 Band A candidates were hired ("Beadle December 13, 2001 Memorandum")).
Irion attended a Chief's Interview on October 4, 2001. See Plaintiff's Exhibits in Support of Opposition to Defendants' Summary Judgment Motion ( "Plaintiff's OppositionExhibits"), Ex. 5 (Interview Schedules). At the interview, a photograph of Irion was taken. Irion Summary Judgment Decl. at ¶ 4 & Ex. 49 at 23 (Steffen Depo., testifying that pictures were kept with panelist score sheets to "jog [panelists'] memory"); Richter Depo. at 32 (same). Irion received a rating of Q-from all the Chief's Interview panelists. Defendants' Exhibits, Exs. 3-5 (Rating Sheets of Steven Bridges, Andrew Steffen, and Denise Burtis). The rating sheets indicate that candidates were rated on a scale from 1 to 7, with 6-7 being "Well Qualified," 3-4-5 being "Qualified" and 1-2 being "Not Qualified." Id. However, Irion's rating sheets do not carry a specific numeric rating. Id. Rather, the panelists checked the Qualified Box for all categories. At the bottom of the sheet, each panelists indicated a "Total Score" of "Q-." Id. Irion was not recommended for hire. Defendants' Exhibits, Ex. 2 (List of Recommended Band A candidates).
The rating sheets for the remaining candidates on the Eligible List apparently were destroyed by the County. See Van Irion's Declaration in Support of Plaintiff's Motion to Exclude Evidence ("Irion Motion to Exclude Decl."), Ex. 10 (Declaration of Jackie Lorrekovich ("Lorrekovich Decl.")). However, notes on interview schedules ("the Interview Schedules") produced by the County appear to contain the numeric ratings of about half of the candidates from Band A who participated in a Chief's Interview. See Irion Summary Judgment Decl., Ex. 5 (Interview Schedules). At oral argument, Defendants admitted that these are the notes of Webster Beadle, Personnel Director for the Fire District, but could not explain their significance. Based on the fact that the numeric scores on the notes appear to match the ratings that appear in other documents, a jury could infer that the ratings on the notes are the scores of the listed candidates at the Chief's Interview as recorded by Beadle. These Interview Schedules indicate that Irion received a numeric rating of 4. Id. The Interview Schedules also appear to indicate that at least two minority candidates with lower initial rankings and lower Chief's Interview scores were hired -- #24, who is identified as Hispanic and received a rating of 3,*fn2 and # 53, who is identified as "Asian or Pacific Islander" and received a 3-4 score. Id. In addition, one minority candidate with the same Chief's Interview score of 4 and a lower initial ranking, #34, was hired. Id. Finally, two minority candidates with Chief's Interview scores of 4 and lower initial rankings than Irion, ##68-69, appear to have been given initial conditional offers of employment, but were not ultimately hired. Id.
Beadle, who was Personnel Officer for the Contra Costa County Fire Protection District at the time of the relevant events, states in his declaration that he was present at the meeting in which the Chief's Interview Panel made its recommendations for Academy Class 34 and that the panelists "did not recommend Mr. Irion for hire . . . because they unanimously felt his answers to questions illustrated that he was too rigid and would be a difficult employee." Beadle Decl., ¶2. However, all three of the panelists testified in their depositions that they had no memory of Irion, and one testified that she had no memory of the meeting following the Chief's Interviews to which Beadle refers. See Irion Summary Judgment Decl., Ex. 47 (Deposition of panelist Denise Burtis) at 24; Ex. 48 (Deposition of panelist Steven Bridges) at 6; Ex. 49 (Deposition of panelist Andrew Steffen) at 24.
In December 2001, the County sought to hire an additional 12 to 18 firefighters for Academy Class 36.*fn3 Defendants' Exhibits, Ex. 6 (December 13, 2001 Beadle Memorandum). On April 3, 2002, Band B was certified, allowing the County to consider Band B candidates, along with the remaining Band A candidates, for hire. Irion Summary Judgment Decl., Ex. 30 (Response to Interrogatories) at 3. Prior to certification of Band B, Beadle recommended that Band B be certified, stating as follows:
This is to submit my strong recommendation that the A Band list from which we selected 23 Firefighters for Academy #34 NOT be used again. In my estimation, there are very few, if any, truly capable candidates and NO diverse candidates that I would recommend. It is effectively exhausted.
Defendants' Exhibits, Ex. 6. Beadle noted later that of the original candidates in Band A, 19 withdrew or did not appear at their Chief's Interview and 38 "were rejected and remain on the list." Id. County Human Resources Director Leslie Knight testified at her deposition that in determining whether or not to certify Band B, the word "available" in PMR §719 is construed as including only those individuals who have been interviewed and have not been "deemed not acceptable." Defendants' Exhibits, Ex. 12 at 52 (Knight Deposition).
Band B contained 138 candidates. Defendants' Exhibits, Ex. 1 Eligible List). Of these, 107 showed up for their Chief's Interview. Defendants' Exhibits, Ex. 8 (Band B Cancellation List). The racial composition of those 107 is as follows: 70 white/Caucasian; 5 African American; 18 Hispanic; 3 Asian/Pacific Islander; 5 Filipino; 2 American Indian/Alaskan and 4 of unknown ethnicity. Defendants' Exhibits, Ex. 1 (Eligible List). Neither of the individuals in Band B who claimed a Veterans' Preference Credit (candidates ranked #98 and #116) showed up at the Chief's Interview. Defendants' Exhibits, Ex. 8 (Band B Cancellation List). According to Defendants, ten candidates were hired from Band B and three additional Band A candidates were hired for Academy Class 36. Defendants' Separate Statement of Material Facts, No. 15. The racial composition of the 26 Band A candidate who were hired for Fire Academy Classes 34 and 36 combined is as follows: 13 white/Caucasian; 2 African American; 6 Hispanic; 1 Asian/Pacific Islander; 1 Filipino; 2 American Indian/Alaskan and 1 of unknown ethnicity. Defendants' Exhibits, Ex. 1 (Eligible List). One of the candidates hired from Band A claimed a Veterans' Preference Credit. Id. The racial composition of the Band B candidates who were hired (all for Fire Fighter Academy Class 36) is as follows: 6 white/Caucasian; 1 African American; 2 Hispanic; 0 Asian/Pacific Islander; 1 Filipino; 0 American Indian/Alaskan and 0 of unknown ethnicity. Id. No candidates who claimed a Veterans' Preference Credit were hired from Band B.
2. Veterans Who Did Not Claim a Veteran's Preference Credit
According to Defendants, in addition to the individuals who claimed the Veteran's Preference Credit, it is apparent from the candidates' application materials that other candidates who did not claim the credit were also veterans. Defendants' Summary Judgment Motion at 9. In their brief, their Separate Statement of Undisputed Material Facts, and their expert's report, Defendants present a variety of numbers on this issue. There are two problems with these numbers. First, they often contradict one another. Second, they are largely unsupported by the evidence.
Defendants state in their Separate Statement of Undisputed Facts that out of the 61 candidates in Band A who attended their interviews, 11 were veterans and that two of the candidates hired from Band A were veterans. Defendants' Separate Statement of Undisputed Facts, Nos. 6 and 17. Defendants state in their brief that out of the 168 candidates in Bands A and B who attended their interviews, 16 were, in fact, veterans. Defendants' Summary Judgment Motion at 6. Subtracting out the 11 veterans from the interviewed Band A candidates, this should leave five veterans among the Band B candidates who attended their interview. Yet Defendants' expert states that he was told that nine (rather than 11) of the interviewed Band A candidates were veterans and that four (rather than five) of the 107 applicants in Band B who were interviewed were veterans. Defendants' Exhibits, Ex. 20 at 2, 4.*fn4 There are also discrepancies in Defendants' numbers as to actual hires. In particular, Defendants' expert states that two veterans were hired from Band B, id., while Defendants state in their Separate Statement of Undisputed Material Facts that three of the individuals hired from Band B were veterans. Separate Statement of Undisputed Material Facts, No. 18.
In addition to these inconsistencies, Defendants offer virtually no evidence in support of their numbers on actual veterans. For example, Defendants state in their brief that based on their review of the applications, "out of the 80 applicants in Band A, 18 were in fact veterans." Defendants' Summary Judgment Motion at 9 (citing to Defendants' Exhibits, Ex. 1 (Eligible List) and the Daniel Declaration); see also Separate Statement of Undisputed Material Facts, No. 6 (citing to same). However, neither Exhibit 1 nor the Daniel Declaration, on which Defendants rely, support these numbers. Exhibit 1 lists only the veterans who claimed a Veterans' Preference Credit. Thus, Defendants appear to be relying on the Daniel Declaration for their numbers. Yet that declaration contains only one sentence relevant to the number of actual veterans, which states as follows:
I reviewed the application materials of the candidates hired from [the A, B and C Bands of the Firefighter Recruit Eligible List] and, in addition to the candidates previously given Veteran's credits, I identified seven additional candidates who indicate they have military service.
Daniel Decl., ¶ 9. This statement is extremely unclear. First, Daniel states that he reviewed the "application materials of the candidates hired." Id. (emphasis added). Yet the "seven additional candidates" figure does not match with Defendants' assertions that a total of five veterans were hired from Bands A and B. See Defendants' Separate Statement of Undisputed Material Facts, Nos. 17 and 18. Alternatively, if Daniel meant that he found an additional seven veterans among all of the candidates in Bands A, B and C, he provides no information as to which of these candidates showed up at their interviews, which Band they were in, or indeed, whether any of them were hired. Given the inconsistency in Defendants' numbers, and the lack of evidence supporting them, it is impossible to determine just how many actual veterans were interviewed or hired from Band A or from Band B.
3. Affirmative Action and The Consent Decree
Contra Costa County has an affirmative action program that was implemented following entry of a consent decree in 1975 in the case of Croskrey v. County of Contra Costa ("the Croskrey Consent Decree"). See Plaintiff's Exhibits, Ex. 27 (Croskrey Consent Decree). Under the Croskrey Consent Decree, where a racial minority or gender is underrepresented relative to the total population such that the number or those employed from that group is "less than 80% of the number representative of the percentage of qualified females or minorities in the work force in Contra Costa County qualified for a given job classification" (defined as an "imbalance"), goals and timetables to address the imbalance are established. Id., Section A-5(b). The Croskrey Consent Decree further provides that "[a]ction to attain the goal of the parties will be carried out within the context of the merit system." Id., Section A-2.
Fire Chief Richter testified in his deposition that when panels are established to conduct Chief's Interviews, the panelists are instructed about the existence of the Croskrey Consent Decree, as well as any goals and timetables that might be in effect for women or minorities. Plaintiff's Exhibits, Ex. 45 (Richter Deposition) at 19. A document entitled "The Consent Decree: Briefing For Promotional Boards: Contra Costa County Fire Protection District" states, in part, as follows:
In today's interview, there is an imbalance in the job classification of _____. As you interview today, diligently look for any qualified female or minority candidates who will fill the job classification to further correct the imbalance. Qualified candidate is the key to correcting the imbalance, not just gender or color of the skin.
Plaintiff's Exhibits, Ex. 37 (Briefing Paper).
The Contra Costa Timetables and Goals in effect at the time of hiring for Academy Class 34 reflect that there was an imbalance with respect to American Indians. Plaintiff's Exhibits, Ex. 20 (Contra Costa Timetables and Goals). However, all three panelists involved in the October 2001 Chief's Interviews state in their declarations that although they were "instructed on the fact that the county was under a federal consent decree and an affirmative action plan . . . [they] were not given any information regarding specific time tables and goals pertaining to the affirmative action plan and were specifically instructed not to use race and gender as a factor in [their] ratings and recommendations." See Declaration of Andrew Steffens, Declaration of Denise Burtis, and Declaration of Steven Bridges. The panelists further state that they did not consider race or gender as a factor in rating the candidates or making recommendations. Id.
Beadle testified in his deposition that the goals and timetables come into play in making final hiring decisions only as a tie-breaking factor when a choice is being made between a minority and a non-minority candidate with equal qualifications. Plaintiff's Exhibits, Ex. 44 (Beadle Deposition) at 83. Similarly, Fire Chief Richter testified in his deposition that race and gender are used as a tie-breaker. Plaintiff's Exhibits, Ex. 45 (Richter Deposition) at 17. However, the Contra Costa County Fire Protection District Training Chief and Affirmative Action Coordinator at the time Academy Classes 34 and 36 were hired, Ronald Martin, states in his declaration that there were no "tie-breaking scenarios" because "before Band B was certified, the Fire District had more vacant positions to fill than it had band A applicants who had been recommended by the Chief's Interview Panel to fill those positions." Declaration of Ronald Martin, ¶ 2. With reference to the County's affirmative action plan, Beadle's replacement, Jackie Lorrekevich, testified that "it was so built into the fabric of what we did that it was a part of everything we did." Defendants' Exhibits, Ex. 46 at 111 (Lorrekovich Depo.).
Plaintiff filed this action on February 27, 2003, and alleged the following claims: 1) employment discrimination based on veteran status; 2) breach of contract based on alleged failure to adhere to hiring procedures set forth in the job announcement; 3) fraud based on alleged failure to adhere to hiring procedures set forth in the job announcement; and 4) fraud based on statement in job announcement that the County was an "Equal Opportunity Employer" when in fact, hiring was allegedly discriminatory to the extent it was based on the Affirmative Action policies established in the Croskrey Consent Decree.
On January 9, 2004, Plaintiff sought leave of Court to file an amended complaint alleging a reverse discrimination claim, citing to documents obtained by Irion in the course of discovery showing that Band B had been certified in April 2002, at a time when 37 Band A applicants remained on the Eligible List, and showing that one of the reasons for certification of Band B was the desire to increase the diversity of the applicant pool. See Memorandum of Points and Authorities in Support of Plaintiff's Motion to Amend Complaint. Plaintiff also sought to add a negligence claim based on the allegation that County Human Resources Director Leslie Knight violated the PMRs when she certified Band B in April 2002. In his Motion to Amend, Plaintiff cited 42 U.S.C. § 1983 in support of his reverse discrimination claim. However, he did not reference a particular statute in connection with his reverse discrimination claim in his First Amended Complaint. On February 13, 2004, the Court granted Plaintiff leave to file his First Amended Complaint.
On March 8, 2004, Defendants stipulated that they would not assert any defense based on the Croskrey Consent Decree. Conversely, Plaintiff stipulated that he would not challenge the ...