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Irion v. County of Contra Costa

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA


March 16, 2005

VAN R. IRION, PLAINTIFF(S),
v.
COUNTY OF CONTRA COSTA, ET AL., DEFENDANT(S).

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]

I. INTRODUCTION

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.

II. BACKGROUND

A. Facts*fn1

1. The Hiring Process

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.).

B. Procedural Background

1. The Complaint

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 validity of the Croskrey Consent Decree in this action.

2. Defendants' Summary Judgment Motion

On December 23, 2004, Defendants filed a Summary Judgment Motion, asking the Court to grant summary judgment in their favor on all of Plaintiff's claims.

First, with respect to Plaintiff's claim of discrimination based on veteran status, Defendants assert that Plaintiff's statistics are flawed and his expert unqualified. According to Defendants, the statistics concerning actual veterans who applied and were hired raise no inference of discrimination based on veteran status. Defendants argue further that Plaintiff's claim fails because he would not have been offered employment even if he were not a veteran because of the Q-score he received in the Chief's Interview.

Second, Defendants assert that Plaintiff's reverse discrimination claim fails because Plaintiff did not identify a particular statute that was violated. Assuming Plaintiff is attempting to assert a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, Defendants assert, the claim fails because Plaintiff did not file a timely charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and therefore has not satisfied the requirements of administrative exhaustion. Specifically, Plaintiff did not file a charge of discrimination until March 17, 2004, almost two years after he was notified that he had not been hired, on June 19, 2002. Under Title VII, an EEOC charge must be filed within 180 days of the alleged unlawful employment practice or, where a complainant initiates a charge with a state agency that has jurisdiction, within 300 days. 42 U.S.C. §§ 2000 e-5(e) (1) & (2). Finally, Defendants assert that Plaintiff has not shown any racial discrimination because his statistics purporting to show racial discrimination are flawed and there is no other evidence sufficient to raise an inference of discriminatory intent in the face of the legitimate, non-discriminatory reason offered by Defendants for their failure to hire Irion, namely, that Irion was rejected because of his Q-rating.*fn5

Third, Defendants argue that Plaintiff's negligence claim fails because the certification of Band B by Leslie Knight was a discretionary action and therefore, is subject to governmental immunity under Cal. Gov. Code § 820.2. Defendants argue in the alterative that even if governmental immunity does not apply, Defendant Knight owes no duty of care to Plaintiff, that there was no breach of any duty, and moreover, that her action did not result in any legal harm to Plaintiff.*fn6

In his Opposition, Plaintiff argues that Defendants have not met their burden with respect to his claim of discrimination based on veteran status. First, he argues that Defendants' statistics are flawed to the extent they purport to include actual veterans who did not claim a Veteran's Preference Credit without any evidentiary support. He agrees with the County that the relevant inquiry should consider actual veterans rather than only those who claimed a Veteran's Preference Credit but states that his review of the applications reveals different numbers which, in turn, give rise to probabilities that support an inference of discrimination. Plaintiff also points to the Interview Schedules containing notations that appear to be the Chief's Interview scores. These notations, Plaintiff asserts, indicate that non-veterans who obtained the same or lower scores than Plaintiff were hired, thus supporting an inference of discrimination.

With respect to Plaintiff's racial discrimination claim, Plaintiff disputes that the claim is barred for failure to exhaust under Title VII. First, he states that he was not required to file an administrative charge under Title VII until he was on notice of the grounds of his claim and because he did not learn of the certification of Band B until November 2003, his March 2004 EEOC charge was timely. Plaintiff argues further that he has asserted a claim under 42 U.S.C. § 1983 and that no exhaustion is required on this claim. On the merits, Plaintiff asserts that the consent decree, along with the other evidence he has presented indicating that it was the County's policy and practice to take race into account in hiring, are sufficient to establish a prima facie case of discrimination.*fn7 In addition, Irion points to evidence that minority candidates whose scores were lower than his and who received less favorable scores on their Chiefs' Interviews that Irion were hired.

Finally, with respect to his Negligence claim, Plaintiff rejects the County's assertion that Knight is entitled to governmental immunity with respect to the decision to certify Band B. Plaintiff argues that this decision could not have been a "policy-level decision," as required under Cal. Gov. Code § 820.2 for government immunity, because Knight testified that the decision to certify Band B was made by subordinates without her knowledge. Plaintiff argues further that Knight owed him a duty of care because it was foreseeable that certifying Band B would drastically reduce Plaintiff's chances of being hired. Finally, Plaintiff rejects Defendants' assertion that Knight's certification of Band B did not actually cause him harm because the real reason he was not hired was because he received a Q-in his interview. Plaintiff again points to the notations on the Interview Schedules, which appear to indicate that lower ranked minority candidates who received the same score as Plaintiff on their Chief's Interview were hired.

In their Reply, Defendants repeat the arguments in their Motion. In addition, Defendants assert that Plaintiff's race discrimination claim cannot be construed as a claim under 42 U.S.C. § 1983 because that provision carries a two-year statute of limitations and, Defendants assert, Plaintiff never explicitly referenced § 1983 prior to filing his Opposition, in January 2005.

3. Plaintiff's Summary Judgment Motion

Plaintiff asserts in his Summary Judgment Motion that he is entitled to summary judgment on his claim for race discrimination. In support of his Motion, Plaintiff points to the following evidence: 1) testimony by County personnel that race was used as a tie-breaking factor in hiring for the Fire District; 2) evidence that Chief's Interview panelists were briefed on the Croskrey Consent Decree prior to interviewing candidates and that there was an imbalance with respect to American Indians and Alaskan Natives in the relevant time period; 3) evidence that candidates within a Band are deemed equal, even though their test scores indicate they are not equal, and that a "subjective" interview is used as a key factor in making decisions; 4) evidence that one of the reasons Band B was certified was concern about the diversity of the candidate pool and that, in light of the fact that 37 Band A candidates remained on the list when Band B was certified, the PMR requirements for certification were not followed; 5) evidence that Plaintiff was more qualified than Band B minority applicants who were hired; 6) statistical evidence that race was a factor in hiring; and 7) evidence that minorities who were ranked lower and scored lower than Irion on their Chief's Interview were hired. Plaintiff argues that as to Defendants' assertion that he was not hired because of his Q-rating on the Chief's Interiew, there is evidence to the contrary. He notes, however, that Defendants' position is difficult to refute because Defendants destroyed the panelist score sheets for the other candidates.

In their Opposition, Defendants raise many of the same arguments that they make in their Summary Judgment Motion. In particular, Defendants argue that Plaintiff was not hired because of his Q-rating on his Chief's Interview and that the statistical data does not raise an inference of discrimination on the basis of race. Defendants do not address the significance of the Interview Schedules, neither confirming nor denying that the notations on those schedules are the panelists' ratings for those candidates.*fn8

4. Motion to Exclude Evidence

Plaintiff asserts in his Motion to Exclude Evidence that Defendants destroyed the Chief's Interview score sheets for the candidates on the Eligible List after they were on notice the documents were relevant to potential litigation (and possibly after this litigation was initiated). As a result of this spoliation of evidence, Plaintiff asserts, Defendants should be sanctioned. Plaintiff requests that Defendants be precluded from asserting a defense to Plaintiff's claims based on the score he obtained in his Chief's interview. In the alternative, Plaintiff requests that Defendants be precluded from offering into evidence any score sheets by any candidate or, at least, Plaintiff's score sheets.

Plaintiff asserts that Defendants were on notice that the score sheets were likely to be relevant to potential litigation as early as June 18, 2002, when he submitted a FOIA request covering these documents. In the FOIA request, Plaintiff requested, inter alia, the following documents:

* Any notes, minutes or papers documenting the methods used by Contra Costa County Fire Department or Contra Costa Human Resources Department to select candidates for employment from the Firefighter-Recruit employment referral list reported to be effective from 7/31/2001 - 7/31/02. . . .

* Written test scores, oral interview score, and total (final) numerical scores of all applicants for the position of Firefighter-Recruit with the Contra Costa County Fire Department who were placed on the "A Band" employment referral list in the summer of 2001.

* Written test scores, oral interview score, and total (final) numerical score of all applicants for the position of Firefighter-Recruit with the Contra Costa County Fire Department who have been offered employment in this position since 6/01/01.

Irion Motion to Exclude Decl., Ex. 1 (FOIA Request). Plaintiff also states that he had a telephone conversation with Beadle in June 2002 and asserts that he sent a letter to Fire Chief Richter on June 26, 2002, expressing his dissatisfaction with the County's failure to hire him.*fn9 Plaintiff also points to his November 14, 2002 claim for damages against the County as evidence that the County was on notice that it should preserve the documents. See id., Ex. 7 (November 14, 2002 Claim). This claim was filed pursuant to Cal. Gov. Code § § 900-965 as a prerequisite to initiating litigation against the County.

On the question of when the documents were destroyed, Plaintiff cites to testimony by Beadle that the score sheets would "certainly" have been retained for the duration of the Eligible List -- in this case, July 31, 2002. Irion Motion to Exclude Decl., Ex. 14 (Beadle Depo.) at 98. Plaintiff also notes that although Beadle testified that the score sheets were kept in his office (with the Fire District), Plaintiff's score sheets were included in the documents provided by the County in response to his FOIA request, in August 2002, indicating that his score sheet had been forwarded to the County by the Fire District and further, that the score sheets of the other candidates on the Eligible List were still in existence at that time. See id. Plaintiff also cites Beadle's testimony on retention of score sheets. In particular, Beadle testified in his deposition that the score sheets were generally kept in his office until he didn't have room to keep them. Id. at 36. He also testified that he had discussed the question of retention of score sheets with County counsel. Id. at 99.

Finally, Plaintiff cites to Cal. Gov. Code § 12946, which he asserts created an affirmative duty on the part of the County to retain the score sheets for at least two years after employment action was taken.

In their Opposition, Defendants assert that the FOIA request did not place them on notice of the potential of litigation because it only requested Plaintiff's score sheets and not those of other candidates. Defendants further assert that Plaintiff has not established that the score sheets were in existence at the time Plaintiff made his discovery requests in this action. Defendants do not confirm or deny, however, Plaintiff's assertion that the score sheets were in existence at the time Plaintiff initiated this lawsuit. Defendants reject Plaintiff's assertion that they had an affirmative duty under state law to retain the score sheets for two years, arguing that § 12946 does not apply to the score sheets.

5. Motion to Reopen Discovery

Plaintiff requests the following additional discovery: 1) an order that Defendants produce partially unredacted copies of previously disclosed documents to reveal the names of individuals that were redacted; 2) an order allowing Plaintiff to depose Beadle regarding the significance of the notations on the Interview Schedules; 3) an order compelling Defendants to reschedule a deposition of retired Operations Officer for the Fire Protection District, Dewey Savell; 4) an order compelling the Defendants to use best efforts to locate Savell and serve a subpoena for such a deposition; and 5) an order compelling Defendants to reimburse Plaintiff for his expenses in trying to serve Savell after the originally scheduled deposition was cancelled.

III. ANALYSIS

A. Motion to Exclude

It is within the Court's inherent power to sanction litigants for the destruction of evidence where they knew or should have known that the documents were relevant to litigation or potential litigation. See Unigard Security Ins. Co. v. Lakewood Eng'g & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 1992) (holding district court had inherent power to exclude testimony where destruction of evidence made it impossible for opposing party to counter testimony). A party's destruction of evidence need not be done in bad faith to warrant imposition of sanctions, so long as there is a finding of fault. Id. at 368 n. 2. Nor must the destruction of evidence occur after the specific evidence was requested, or even after the litigation was initiated. See Wm. Thomas Co. v. General Nutrition Corp., Inc., 593 F. Supp. 1443, 1455 (C.D. Cal. 1984). Rather, "[s]anctions may be imposed against a litigant who is on notice that documents and information in its possession are relevant to litigation, or potential litigation, or are reasonably calculated to lead to the discovery of admissible evidence, and destroys such documents and information." Id. (emphasis added); Graham v. Teledyne-Continental Motors, 805 F.2d 1386, 1390 n. 9 (9th Cir. 1987) (citing with approval Bowmar Instrument Corp. v. Texas Instruments, Inc., 25 Fed.R.Serv.2d 423, 427 (N.D. Ind. 1977) for the proposition that sanctions are appropriate where party destroyed evidence it should have known would be relevant in future litigation); see also Capellupo v. FMC Corporation, 126 F.R.D. 545 D. Minn. 1989) (imposing sanctions where defendant began destroying relevant evidence after hearing a rumor that plaintiff was considering filing a gender discrimination lawsuit but a month before the plaintiff filed her EEOC charge and several months before she actually sued defendants).

Because of the potency of the court's inherent powers, they must be exercised with restraint. Advantacare Health Partners L.P. v.Access IV, 2004 WL 1837997 (N.D.Cal.) (citing Roadway Express Inc. v. Piper, 447 U.S. 752, 764 (1980)). One aspect of this restraint is determining the appropriate sanction in light of the specific abusive conduct. Id. In determining the appropriate sanction, courts should seek to impose a sanction that accomplishes the following objectives: (1) penalize those whose conduct may be deemed to warrant such a sanction; (2) deter parties from engaging in the sanctioned conduct; (3) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (4) restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party.

Id. at * 3. For the most egregious conduct, entry of default judgment may be appropriate. Id. A less drastic sanction is the exclusion of evidence or, short of that, a rebuttable presumption against the responsible party that if the evidence had not been destroyed, it would have been detrimental to the despoiler. Id.; Unigard, 982 F.2d at 369.

Here, the evidence provided by Plaintiff is sufficient to establish fault. First, Plaintiff has pointed to evidence establishing that the County was on notice of the likelihood of potential litigation by July 2002. Following receipt of his rejection letter, Plaintiff wrote a letter to Fire Chief Richter, dated June 24, 2002, requesting an explanation of the County's decision. On July 18, 2002, Plaintiff filed a detailed FOIA requesting the "oral interview score" for all Band A applicants and all candidates who were offered positions, to which the County responded on August 5, 2002. Sometime later in August, Plaintiff's own score sheet was provided to him by the County, indicating the County must have asked the Fire District to forward the score sheet to the County and therefore, that the Fire District was aware of his request for the remaining scores.

Second, Plaintiff has pointed to evidence that the score sheets were still being retained by the Fire District until at least July 31, 2002. In particular, Beadle, who testified that he kept the score sheets in his office, stated that he would "certainly" have kept the score sheets to the end of the relevant hiring period, which in this case was July 31, 2002. This fact is confirmed by the production of Irion's score sheet in August 2002, in response to his FOIA request.

Third, the County was obligated under state law to retain these documents for two years. In particular, Cal. Gov. Code § § 12946 states, in part, that ""[i]t shall be an unlawful practice for employers, labor organizations, and employment agencies subject to the provisions of this part to fail to maintain and preserve any and all applications, personnel, membership, or employment referral records and files for a minimum period of two years after the records and files are initially created or received . . ." The County argues that the score sheets don't fall under this provision because the score sheets are not "employment referral records." However, the Court finds no cases that support the County's reading of the provision. To the contrary, the Court has found at least one case suggesting a contrary result. See Hawkins v. Home Depot USA, Inc., 294 F. Supp. 2d 1119, 1122 n. 1 (N.D. Cal. 2003) (mentioning that § 12946 might have required the defendant to retain test scores obtained as part of the application process but finding that argument had been waived).

On the other hand, there is little evidence regarding the circumstances under which the documents were destroyed.*fn10

Thus, it is unclear whether the score sheets were destroyed in response to learning that Plaintiff was considering filing a lawsuit or rather, through inadvertence. Under these circumstances, the Court concludes that exclusion of Plaintiff's score sheets -- which would effectively deny the County the right to present its main defense to Plaintiff's discrimination claims -- would be too extreme a sanction. Rather, the parties will be permitted to present evidence to the jury on the question of whether the County despoiled evidence. See Wong v. Sweir, 267 F.2d 749 (9th Cir. 1959) (holding that where there was conflicting evidence as to whether evidence had been tampered with, district court did not abuse its discretion in imposing a presumption against alleged spoliator and allowing jury to determine whether it there had been tampering and whether alleged spoliator had provided sufficient explanation of its acts to rebut that presumption). The Court will instruct the jury that if it finds that Defendants' destruction of the score sheets was intentional, the jury should presume the score sheets would have supported Plaintiff's case.

B. The Summary Judgment Motions

1. Legal Standard on Summary Judgment

Rule 56 provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the nonmoving party's claim, or to a defense on which the nonmoving party will bear the burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Nissan Fire & Marine Ins. Co. v. Fritz Cos. Inc., 210 F.3d 1099 (9th Cir. 2000). Once the movant has made this showing, the burden shifts to the party opposing summary judgment to "designate specific facts showing there is a genuine issue for trial." Celotex, 477 U.S. at 323.

"A trial court can only consider admissible evidence in ruling on a motion for summary judgment." Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002).

2. Veteran Discrimination Claim

Plaintiff asserts that Defendants discriminated against him on the basis of veteran status, in violation of the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4311. Under USERRA, employers may not deny a person employment on the basis of membership -- including past membership -- in a uniformed service. 38 U.S.C. § 4311(a). USERRA is violated when veteran status is a "motivating factor" in the employer's action. Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir. 2001) (citing 38 U.S.C. § 4311(c)(1)). Under the burden-of-proof allocations applied in USERRA cases, the plaintiff first has the burden of showing, by a preponderance of the evidence, that the plaintiff's protected status was a substantial or motivating factor in the employer's adverse decision. Id. (citing NLRB v. Transportation Management Corp., 462 U.S. 393 (1983)). The burden then shifts to the employer to prove that it would have taken the same action without regard to the plaintiff's protected status. Id.

Where a plaintiff relies on statistical evidence, an inference of discrimination sufficient to make a prima facie case arises where the make-up of the selected group" differs significantly from that of the pool from which it was selected." Berger v. Ironworkers Reinforced Rodmen Local 201, 843 F.2d 1395, 1411 (D.C. Cir. 1998). A disparity is considered statistically significant where there is a probability of 5% or less that the disparity is a result of chance. Id.

Plaintiff in this action relies on statistics to establish a prima facie case of discrimination. First, he provides a calculation of probability based on the number of individuals who claimed a Veteran's Preference Credit, comparing the number of veterans interviewed with the number of veterans hired for each round of hiring (that is, Academy Class 34 and Academy Class 36), and then multiplying the probability of the two events to come up with a probability for both events combined. Using this approach, Plaintiff's expert calculates that there is a 2.47 % chance that veterans would have been hired in the numbers they were. See Irion Decl. in Support of Opposition, Ex. 21 (Expert Report of Michael Dugas ("Dugas Report") at 1-2. This is based on his calculation that: 1) there is a 6.06% chance that 1 veteran would be hired for Academy Class 34 where 9 of the 61 candidates interviewed (all of whom were in Band A) were veterans; and 2) there is a 35.91% chance that 0 veterans would be hired for Academy Class 36, where out of the pool of 145 candidates (apparently including the Band B candidates who were interviewed and the remaining 38 Band A candidates who were interviewed but not hired for Academy Class 34), 8 candidates were veterans.*fn11

Defendants assert that Plaintiff's calculations are flawed and unreliable because, by multiplying the probability obtained for Academy Class 34 by the probability for Academy Class 36, plaintiff has "improperly calculate[d] the probability of a veteran being rejected for hire twice: once for [A]cademy [C]lass 34 (when band "A" was certified) and once for [A]cademy [C]lass 36 (when band B was certified)." Defendant's Reply to Plaintiff's Opposition to Motion for Summary Judgment at 6. Defendants assert that this is improper because the Band A candidates were "not re-evaluated after they were rejected from band A." Id.; see also Oskenedler Declaration, Ex. 2 (Supplemental Declaration of Michael Sullivan) at 2. Thus, Defendants seem to argue that the rejection of the veterans in Band A was, essentially, double-counted.

The shortcoming in Defendants' position is that it is based on the assumption that Band A candidates were not re-evaluated in the second round of hiring. There is, however, a genuine issue of material fact on this question. In particular, although Defendants have repeatedly characterized the Band A candidates who were not hired for Academy Class 34 -- including Irion -- as candidates who had already been "rejected," three Band A candidates were, in fact, hired for Academy Class 36. Defendants' Separate Statement of Undisputed Facts, No. 15. This evidence is sufficient to supports a reasonable inference that the Band A candidates who remained on the list had two chances to be hired instead of one. Therefore, the Court cannot conclude as a matter of law that Plaintiff's probability of 2.47% is unreliable.

In an effort to rebut Plaintiff's statistical evidence, Defendants have also presented statistics regarding actual veterans. As discussed above, the statistics in Defendants' Summary Judgment Motion are based on a single declaration that does not contain any of the numbers used in Defendants' Motion. Nor are the numbers contained in Defendants' expert's supplemental brief -- which were presented for the first time in support of Defendants' Reply -- supported by any evidence. Rather, Defendants' expert merely states that he was "provided with additional information." Oskenendler Decl., Ex. 2 (Supplemental Expert Report) at 2. For this reason, and because this declaration was submitted on reply, the Court does not consider these numbers sufficient to rebut Plaintiff's evidence on summary judgment. See Orr, 285 F.3d at 773.

Because Plaintiff has presented sufficient evidence to make a prima facie case of discriminatory intent, Defendants can prevail on summary judgment only by demonstrating, as a matter of law, that it would not have hired Plaintiff even apart from his veteran status. See Leisek, 278 F.3d at 898. Defendants fail to meet this burden. Although Defendants present evidence that Plaintiff was not hired because he received a Q-on his Chief's Interview, Plaintiff has presented evidence that others who did not claim a Veteran's Preference Credit and who received the same or lower Chief's Interview score were hired by the County. See Irion Summary Judgment Decl., Ex. 5 (Interview Schedules). In addition, Plaintiff has presented evidence that the County may have intentionally destroyed the score sheets. If the jury finds that the County's destruction of the score sheets was intentional, this evidence will give rise to a presumption that the score sheets would not have supported Defendants' position. This evidence is sufficient to create a fact question for the jury regarding the reason Irion was not hired. Therefore, the Court concludes that Defendants have not established that there is no disputed issue of material fact as to Plaintiff's USERRA claim.

3. Race Discrimination Claim

a. Title VII and Exhaustion

Defendants assert that Plaintiff's race discrimination claim is barred to the extent that it is based on Title VII of the Civil Rights Act of 1964 because Plaintiff failed to exhaust his administrative remedies. The Court agrees.

Under Title VII, a complainant is required to file an EEOC charge within 180 days after the alleged unlawful employment practice occurred, or, when a complaint has been filed with a state agency with jurisdiction, within 300 days. See 42 U.S.C. § 2000e-5(e)(1) & (2). This requirement is not jurisdictional but rather, is considered akin to a statue of limitations and, therefore, is subject to waiver and tolling. Zipes v. Trans World Airlines, 455 U.S. 385 (1982). Moreover, courts have held that the time for filing an EEOC charge does not begin to run "until the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights." Reeb v. Economic Opportunity Atlanta, 516 F.2d 924 (5th Cir. 1975) (holding that plaintiff was not barred from pursuing Title VII claim based on failure to exhaust where she filed EEOC charge more than six months after alleged unlawful discrimination because former employer had concealed facts supporting claim).

Here, Plaintiff was on notice of the basic facts supporting his race discrimination claim at least by November 2002, when he filed a claim for damages with the County. See Plaintiff's Opposition Exhibits, Ex. 7 (November 14, 2002 Letter to Board of Supervisors). In particular, in his November 14, 2002 letter to the County, Plaintiff complained that he had not been hired, while others with lower scores had been hired. He further stated that the County gave preferential treatment to women and minorities pursuant to its affirmative action plan. Id. Similarly, in his original complaint, filed on February 27, 2003, Plaintiff alleged as part of his fraud claim that the County stated in the job announcement that it was an Equal Opportunity Employer, when in fact, "Defendants' Affirmative Action Policy requires defendants to hire minimally qualified minority or female applicants preferentially over better qualified non-minority candidates." Complaint at 7. Indeed, Plaintiff himself argued in his Motion to Amend that the basic factual allegations supporting his new claims for race discrimination and negligence were contained in his original complaint. See Memorandum of Points and Authorities in Support of Plaintiff's Motion to Amend Complaint at 6. Yet Plaintiff did not file his EEOC charge until March 17, 2004, over a year after he filed his complaint. Plaintiff's charge was untimely.

The Court rejects Plaintiff's assertion that he didn't know the facts that formed the basis for his race discrimination claim until he obtained information through discovery in January 2004 about the County's certification of Band B in April 2002. While this evidence may support Plaintiff's discrimination claim, it is not so basic as to justify a finding that Plaintiff was not aware of the grounds for his claim until he obtained this information.

Nor has Plaintiff cited any case law that supports a contrary result. Rather, the cases on which Plaintiff relies are distinguishable because they involve representations or conduct on the part of the defendants that supported a finding of equitable tolling. For example, in Reeb, the employer told the plaintiff when she was terminated that she was being terminated for budgetary reasons. Reeb, 516 F.2d at 931. It was not until several months later that the plaintiff learned that her employer had subsequently filled her position with a less qualified male. In Leake v. University of Cincinatti, 605 F.2d 255, 259 (6th Cir. 1979), a professor who alleged gender discrimination against the university agreed to give the university time to investigate her claims in response to the university's request and based on express representations by the university that the time would not be used to prejudice the plaintiff with respect to "any statute of limitations." The court concluded that the plaintiff had reasonably relied on these statements, and therefore, that the filing period was equitably tolled. Id.

The third case on which Plaintiff relies, Manning v. Carlin, 786 F.2d 1108 (11th Cir. 1986) also does not support Plaintiff's position. There, the court rejected the plaintiff's assertion that the period for filing an EEOC charge was tolled because his employer had allegedly intimidated him by threatening criminal prosecution for acts taken by plaintiff in his employment. Id. The court explained that tolling with respect to EEOC charges occurs in only three situations: "situations in which an action was pending before a state court, situations in which the defendant had concealed facts supporting a cause of action under Title VII, and situations in which the plaintiff was mislead by the defendant about the nature of his rights under Title VII." Id. at 1109. Because the court found that none of those situations applied, it concluded the filing period was not tolled. Id. Similarly, in this case, there is no evidence that the County concealed facts or mislead Plaintiff with respect to his rights. Id. Nor is there a pending state court action. Therefore, the Court concludes that Plaintiff's Title VII claim is barred for failure to exhaust administrative remedies.

b. 42 U.S.C. § 1983 Claim

Defendants argue that Plaintiff also may not "recast" his race discrimination claim under 42 U.S.C. § 1983 because, in California, that provision carries a two-year statute of limitations and would have had to have been raised no later that June 19, 2004. Defendants assert that because Plaintiff cited § 1983 for the first time in January 2005, in his Opposition to Defendants' Summary Judgment Motion, the claim is time-barred. Although Defendants are correct that Plaintiff's claim, to the extent it is based on § 1983, carries a two-year statute of limitations, they are incorrect that the claim is not timely. Although Plaintiff did not reference § 1983 in his First Amended Complaint, which was filed on February 13, 2004, he made clear in his Motion to Amend, filed January 9, 2004, that his reverse race discrimination claim was based on alleged violation of the Equal Protection Clause, under § 1983. In fact, Plaintiff devoted a significant portion of his brief to this issue in a section entitled "Reverse Discrimination in Violation of 42 U.S.C. § 1983." Therefore, the Court rejects the County's assertion that Plaintiff may not proceed on his race discrimination claim under § 1983.

c. Evidence of Discriminatory Intent

In order to prevail on a § 1983 claim for violation of the Fourteenth Amendment Equal Protection clause, a plaintiff must establish that the defendant acted with discriminatory intent. Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1112 (9th Cir. 1991).

If a plaintiff can establish discriminatory intent under Title VII, discriminatory intent is also established for the purposes of a § 1983 equal protection claim. Id.; see also Federal Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 472 (9th Cir. 1991) (noting that "the status of the § 1983 equal protection claim generally depends on the outcome of the Title VII analysis"). Thus, in determining whether either party is entitled to summary judgment on Plaintiff's race discrimination claim, the Court applies the burden-shifting framework for Title VII claims set forth in McDonnell-Douglas Corp v. Green, 411 U.S. 792 (1973). Applying the McDonnell Douglas test, the Court concludes that neither Plaintiff nor Defendants are entitled to summary judgment on Plaintiff's race discrimination claim.

In McDonnell-Douglas, the Supreme Court adopted a three-part analysis for determining whether a plaintiff has established discriminatory intent: "(1) [t]he complainant must establish a prima facie case of discrimination; (2) the employer must offer a legitimate reason for his actions; (3) the complainant must prove that this reason was a pretext to mask an illegal motive." 411 U.S. at 802. In order to make a prima facie case of discrimination, a plaintiff may present direct evidence of discriminatory animus. Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). The Ninth Circuit has explained that "'[d]irect evidence is evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption.'"

Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998) (quoting Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir. 1994)). Alternatively, plaintiffs may rely on "a presumption arising from the factors such as those set forth in McDonnell-Douglas." Wallis, 26 F.3d at 889.

In a traditional Title VII case, a plaintiff may establish a presumption of discrimination under the McDonnell Douglas framework by showing that: (1) he belongs to a protected class; (2) he was qualified for the position; (3) he was subject to an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably. Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1123 (9th Cir. 2000). Where a plaintiff has alleged reverse discrimination, there is a split of authority regarding the first factor. Some circuits have held that Caucasians are a protected class under Title VII and therefore, the traditional test applies. See, e.g., Byers v. Dallas Morning News, Inc., 209 F.3d 419, 426 5th Cir. 2000). Other Circuits have held that plaintiffs alleging reverse discrimination claims must show, in addition to the factors listed above for establishing a prima facie case, that "'background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.'" Woods v. Perry, 375 F.3d 671, 672 (8th Cir. 2004) (quoting Duffy v. Wolle, 123 F.3d 1026, 1036 (8th Cir. 1997)). The Ninth Circuit has not taken a position on this issue. The Court need not resolve this issue at this stage of the case because, under either test, Plaintiff has made a prima facie case of race discrimination.

Once the plaintiff makes a prima facie case of discrimination -- either by direct evidence or under the McDonnell-Douglas factors -- the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action. McDonnell-Douglas, 411 U.S. at 802. In order to survive summary judgment, the plaintiff then must show that the reason was pretext. Id. The quantum of evidence necessary to show pretext on summary judgment depends upon the type of evidence of discrimination that is offered. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998). Where the plaintiff relies on direct evidence of discriminatory animus, the plaintiff need present "very little evidence" to survive summary judgment. On the other hand, where the plaintiff relies on circumstantial evidence, the plaintiff must provide "specific, substantial evidence" that "the employer's proffered motives were not the actual motives because they are inconsistent or otherwise not believable." Id. at 1221.

Plaintiff has pointed to evidence that he was qualified for the position -- namely, that he was ranked ninth of all applicants on the preliminary tests and that he received a rating of Qualified (albeit, a Q-) on his oral interview. See Defendants' Exhibits, Ex. 1 (Eligible List); Ex.s 3-5 (Score Sheets). He has also presented evidence that he was not hired, while minorities who were ranked lower and received the same or lower scores on their oral interview. See Irion Summary Judgment Decl., Ex. 5 (Interview Schedules).

Finally, Plaintiff has pointed to evidence that Contra Costa County Fire Protection District may be the "unusual employer who discriminates against the majority." See Woods v. Perry, 375 F.3d at 672. Plaintiff has cited evidence that there is an Affirmative Action Plan in place for the Fire Protection District, and that the panelists for the Chief's Interviews are instructed on the existence of the plan before conducting the interviews. Irion Summary Judgment Decl., Ex. 27 (Croskrey Consent Decree), Ex. 45 (Richter Depo.) at 19, Ex. 37 (Briefing Paper). Plaintiff has cited deposition testimony by a Fire Protection District Personnel Officer, Jackie Lorrekevich, in which she states that consideration of diversity "was part of everything we did." Id., Plaintiff's Opposition Exhibits, Lorrekovich Depo. at 111. Plaintiff has pointed to testimony that in tie-breaking situations, race is considered as a factor. See Irion Summary Judgment Decl., Ex. 44 (Beadle Deposition) at 83; Ex. 45 (Richter Deposition) at 17. Further, Plaintiff has noted -- correctly -- that the Declaration of Ronald Martin, on which Defendants rely in support of the assertion that there was no tie-breaking situation with respect to the County's failure to hire him, is, on its face, limited to hiring for Academy Class 34, leaving open the possibility that there was a tie-breaking situation with respect to hiring for Academy Class 36.

In response, Defendants have stated that Plaintiff was not hired because of his Q-rating on his Chief's Interview and not because of his race. However, the Interview Schedules presented by Plaintiff are sufficient to create a fact question as to whether this non-discriminatory reason is pretext. In particular, the Interview Schedules indicate that minority candidates with lower preliminary scores and the same or lower scores on the Chief's Interview were hired. See Washington v. Garrett, 10 F.3d 1421, 1433 (9th Cir. 1994) (holding that where a plaintiff establishes "a genuine issue of material fact regarding the authenticity of the employer's stated motive, summary judgment is inappropriate, because it is for the trier of fact to decide which story is to be believed"). In addition, Plaintiff has presented evidence from which a jury might reasonably infer that Defendants destroyed the score sheets of the other candidates in order to conceal the falsity of their articulated reason for not hiring Plaintiff.

On the other hand, the Court does not find the evidence presented by Plaintiff to be sufficient to establish, as a matter of law, that Defendants' failure to hire Plaintiff was based on race. Rather, there is a factual dispute as to whether Defendants acted with discriminatory intent.

4. Negligence Claim

Plaintiff asserts a claim of negligence against Defendant Leslie Knight, the County's Human Resources Director, alleging that she acted outside of her authority and in violation of PMR § 719 (specifying that a lower band may be certified when the number of "available" individuals in the band above is less than the number to be hired plus nine). Defendants, in turn, argue that they are entitled to summary judgment on four grounds: 1) they are entitled to qualified immunity on the claim under Cal. Gov. Code § 820.2; 2) Knight does not owe a duty of care to Plaintiff; 3) Knight did not breach any duty, assuming she owed one; and 4) Plaintiff has presented no evidence that the certification of Band B was the cause of any harm to Plaintiff. The Court concludes that Defendants are correct that Knight is entitled to immunity pursuant to the California Tort Claims Act, Cal. Gov. Code § 810 et seq. because certification of Band B was a discretionary Act.

Section 820.2 of the California Government Code provides as follows:

Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.

Cal. Gov. Code § 820.2. In determining what constitutes a discretionary act, California courts draw a distinction between "policy and operational judgments." Caldwell v. Montoya, 10 Cal. 4th 972, 980 (1995). Reiterating the standards set forth in Johnson v. State of California, 69 Cal. 2d 782 (1968), the court in Caldwell described this distinction as follows:

Immunity is reserved for those "basic policy decisions [which have] . . . been [expressly] committed to coordinate branches of government," and as to which judicial interference would thus be "unseemly." . . . Such "areas of quasi-legislative policy-making . . . are sufficiently sensitive". . . to call for judicial abstention from interference that "might even in the first instance affect the coordinate body's decision-making process" . . . . On the other hand, said Johnson, there is no basis for immunizing lower-level, or "ministerial," decisions that merely implement a basic policy already formulated. . . . Moreover, we cautioned, immunity applies only to deliberate and considered policy decisions, in which a "[conscious] balancing [of] risks and advantages . . . took place. The fact that an employee normally engages in 'discretionary activity' is irrelevant if, in a given case, the employee did not render a considered decision. . . . Recognizing that "it is not a tort for government to govern" . . ., our subsequent cases have carefully preserved the distinction between policy and operational judgments.

Id. (citations omitted).

Decisions involving personnel administration standards often are discretionary. See id. at 981. For example, in Caldwell, the court held that "votes by a school districts governing board whether to renew the superintendant's employment contract qualify as discretionary acts within the meaning of 820.2." Id. (citing Lipman v. Brisbane Elementary School District, 55 Cal. 2d 224, 230 (1961) for the proposition that "there is a vital public interest in securing free and independent judgment of school trustees in dealing with personnel problems"); see also Sosa v. Hiraoka, 714 F. Supp. 1100 (1988) (stating that "[t]he category of political decisionmaking includes . . . personnel administration standards" (citing Van Alstyne, Cal. Gov. Tort Liability Practice (Cont. Ed. Bar 1980) § 260, p. 128)).

Here, the PMRs contain a rule for Band certification that might suggest that certification is merely ministerial. In particular, § 719 states that "[i]f there are fewer than nine (9) more names available in Band A than the number of vacancies to be filled, then all of the names in Band B shall be certified along with the names in Band A." Defendants Exhibits, Ex. 11, PMR § 719. Yet while this section seems to make certification mandatory under certain circumstances, it does not contain a definition of "available." Rather, it is up to the Director of Human Resources to determine how many of the individuals on the list have not been ruled out based on their performance on the Chief's Interview. In addition, while § 719 requires that Band B be certified when there are less than a certain number of available candidates, it does not preclude certification of Band B when there are more than this number of candidates remaining in Band A. This allows the Human Resources Director to consider issues such as diversity, which is clearly a policy issue. Therefore, the Court concludes that Defendant Knight is immune from liability under § 820.2.

C. The Motion to Reopen Discovery

Plaintiff seeks to reopen discovery, asserting that there is good cause under Fed. R. Civ. P. 16, which allows the Court to modify pre-trial deadlines. Plaintiff's Motion to Reopen Discovery is GRANTED in part and DENIED in part.

First, Plaintiff asserts that he needs to obtain partially unredacted versions of all the documents produced by the County that have been redacted, citing to apparent inaccuracies in the County's redactions. For example, Plaintiff was given two redacted copies of the same document with different rankings indicated for the same individuals. See Van Irion's Declaration in Support of Plaintiff's Motion to Re-Open Discovery Reply ("Irion Motion to Reopen Discovery Decl."), Exs. 6 and 50. Plaintiff argues that he needs to obtain partially unredacted versions of the redacted documents containing the names of the candidates so that he will be able to verify the Defendants' statistics and come up with reliable statistics of his own. The Court agrees.

Defendants' chief objection to Plaintiff's request is that Plaintiff had an opportunity to review the unredacted documents and failed to do so. The evidence in the record, however, does not support this assertion. To the contrary, Plaintiff has pointed to a letter from the County's counsel to Irion indicating that Irion was not permitted to view unredacted versions of the documents. See Irion Motion to Reopen Discovery Decl., Ex. 55 (November 24, 2004 Letter to Irion from Defendants' counsel).

Further, to the extent that the privacy rights of the candidates may be at issue, this interest is outweighed by Plaintiff's need to obtain accurate information regarding the hiring process. See Soto v. City of Concord, 162 F.R.D. 603, 616 (N.D. Cal. 1995) (weighing need for privacy against need for disclosure in civil rights case in which the plaintiff sought discovery of police records and determining that the need for disclosure outweighed the need for privacy); see also Kerr v. U.S. Dist. Court for the N. Dist. of Cal., 511 F.2d 192, 197 (9th Cir.1975), aff'd 426 U.S. 394 (holding that in "a civil rights case brought under federal statutes questions of privilege are resolved by federal law"). The outcome of Plaintiff's claims may well turn on statistics. The County's redactions contain inconsistencies that make it impossible to verify key calculations.

Accordingly, the County shall be required to produce partially unredacted versions of the documents previously produced in redacted form providing the names of the candidates that were redacted. Only Plaintiff, his counsel, and his expert shall have access to these materials.

Second, Plaintiff seeks to depose Beadle regarding the significance of various documents he received in October 2004, after Beadle's deposition. Defendants assert that Plaintiff did not diligently pursue discovery as to Beadle and therefore, the request should be denied. Because the Court is unable to determine from the record who is at fault in this respect, the Court denies Plaintiff's request to reopen discovery to allow Plaintiff to depose Beadle.

Finally, Plaintiff asks the Court to allow him to depose Dewey Savell, a Fire District official who participated in the decision-making regarding hiring during the relevant period. Plaintiff believes Savell may be able to testify as to whether there was a tie-breaking scenario during hiring for Academy Classes 34 and 36. Savell was scheduled for deposition in June 2004, but the deposition was stayed as a result of a tentative settlement. When the settlement fell through, the deposition was rescheduled to late October, but Plaintiff was unable to locate Savell to serve him with a new subpoena. Plaintiff should have sought the Court's assistance on this question before the close of discovery. Moreover, Plaintiff has not presented any evidence indicating that Savell's testimony is likely to be crucial to the outcome of this case. Rather, Plaintiff simply speculates that Savell might have relevant testimony. Therefore, the Court does not find good cause to reopen discovery. Nor is Defendant required to reimburse Plaintiff for his failed attempts to serve Savell.

IV. CONCLUSION

Defendants' Summary Judgment Motion is GRANTED with respect to Plaintiff's claims for Negligence (Claim 3) and Fraud (Claims 4 and 5). Defendants' Summary Judgment Motion is DENIED with respect to Plaintiff's claims for employment discrimination based on veteran status (Claim 1) and employment discrimination based on race (Claim 2). Plaintiff's Summary Judgment Motion is DENIED. Plaintiff's Motion to Exclude Evidence is GRANTED in part and DENIED in part as follows: The parties shall be permitted to present evidence to the jury concerning Defendants' destruction of the score sheets of the other candidates. The jury shall be instructed that if it finds Defendants destroyed the score sheets intentionally, the jury should presume that the score sheets would have been adverse to Defendants. Plaintiff's Motion to Reopen discovery is GRANTED in part and DENIED in part as follows: within ten (10) days of the date of this Order, all documents previously produced by the County in which the names of the candidates were redacted shall be produced in partially unredacted form to reveal the names of the candidates. The Motion to Reopen Discovery is DENIED in all other respects.

IT IS SO ORDERED.


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