Preview
1 BARBARA J. PARKER, City Attorney – SBN 069722
MARIA BEE, Chief Assistant City Attorney – SBN 167716
2 KEVIN MCLAUGHLIN, Supervising Deputy City Attorney – SBN 251477
MICHAEL QUIRK, Deputy City Attorney – SBN 283351
3 One Frank H. Ogawa Plaza, 6th Floor
Oakland, California 94612
4 Telephone: (510) 238-6520 Fax: (510) 238-6500
Email: mquirk@oaklandcityattorney.org
5 33244/3157121
6 Attorneys for Defendant
CITY OF OAKLAND
7 (also erroneously sued as
OAKLAND POLICE DEPARTMENT)
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF ALAMEDA
11
MILDRED L. OLIVER, Case No. RG19007799
12
Plaintiff, ASSIGNED FOR ALL PURPOSES TO
13 JUDGE James Reilly
v. DEPARTMENT 25
14
CITY OF OAKLAND, OAKLAND POLICE DEFENDANT’S RESPONSE TO
15 DEPARTMENT, AND DOES 1-25, PLAINTIFF’S SEPARATE STATEMENT
INCLUSIVE OF DOCUMENTS TO BE COMPELLED
16 PURSUANT TO PLAINTIFF’S
Defendants. PITCHESS MOTION
17
DATE: April 11, 2022
18 TIME: 9:00 a.m.
DEPT: 25
19
Complaint Filed: February 21, 2019
20 Trial Date: TBD
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DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799
1 DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT OF ISSUES IN
2 DISPUTE
3 Below, Defendant responds to each of Plaintiff’s reasons why further responses should be
4 compelled, but based on the further responses in Plaintiff and Defendant’s separate statements, it
5 appears the remaining requests at issue are RPD 21-24 and 31.
6 PLAINTIFF’S REQUEST NO. 21:
7 The employment records of Jason Andersen, excluding medical and benefits information.
8 DEFENDANT’S RESPONSE TO NO. 21:
9 The City objects to this request on the following grounds: (1) the request calls for
10 information protected by Cal. Penal Code § 832.7; (2) the request calls for information protected by
11 Cal. Evid. Code §§ 1040-43; (3) the request calls for confidential and private information of third
12 parties; (4) the request is not reasonably calculated to lead to the discovery of admissible evidence.
13 PLAINTIFF’S REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED:
14 One of the disputed issues in this retaliation, gender and race discrimination case is whether
15 Plaintiff Mildred Oliver, a former Oakland Police Department (OPD) Sergeant, was subjected to
16 discrimination based upon her gender and/or race, or retaliation when she was “scapegoated” in
17 connection with the investigation of the Celeste Guap scandal. Sgt. Oliver was assigned to OPD’s
18 Internal Affairs Department (IAD) in 2014 and was the only female IAD investigator out of eight
19 investigators. She was removed from her assignment to IAD in August 2016 for allegedly
20 conducting “a flawed investigation” into the Guap scandal which “caused significant negative
21 attention to the OPD.” Sgt. Oliver alleges that her removal from IAD was discriminatory and
22 retaliatory (see First Amended Complaint, paras. 8-11, 17-18, 29-39, 68; First, Second, Fourth and
23 Fifth Causes of Action).
24 Defendant City of Oakland’s Motion for Summary Judgment contends that Sgt. Oliver’s
25 removal from multiple IAD investigations “were simply routine personnel decisions” supported by
26 “legitimate nondiscriminatory reasons.” (See Defendant City of Oakland’s Memorandum of Points
27 and Authorities (MPA) at pp. 10:17-20, 12:6-24.) Defendant City alleges that there were
28 “deficiencies” in the handling of the IAD investigation which were highlighted by the independent
2
DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799
1 monitoring team (IMT) and later an independent investigator that were “legitimate
2 nondiscriminatory reasons” for Sgt. Oliver’s abrupt removal from IAD. (MPA at p. 14:7-16.)
3 Jason Andersen was a similarly-situated OPD investigator assigned to investigate the Celeste Guap
4 scandal. Jason Andersen is a white male employee. He was assigned to the Criminal Investigations
5 Division (CID) and handled the CID investigation of the Guap case before and about the same
6 time that Sgt. Oliver was assigned to the IAD investigation of the case. Mr. Anderson’s actions
7 and investigative approach to the Guap case was also more severely criticized by the independent
8 monitoring team (IMT) and later an independent investigator than Sgt. Oliver’s investigation.
9 (See Plaintiff’s Request for Judicial Notice, Swanson Report at pp. 9-15.)
10 Counsel alleges, on information and belief, that Mr. Andersen was not removed from any
11 investigations, or reassigned from CID, or subjected to any adverse actions or consequences,
12 based upon those concerns. (See Second Supplemental Declaration of Pamela Y. Price filed and
13 served concurrently herewith at p. 2:14-21.) Whether Defendant City disciplined and/or treated
14 Sgt. Oliver differently from Mr. Andersen despite the documented deficiencies in his
15 investigation is a material disputed fact in this action, and relevant to the issues of pretext and
16 discrimination.
17 Sgt. Oliver’s claims of race and gender discrimination and retaliation can be analyzed
18 under a disparate treatment model, which applies when an individual [has been] “singled out
19 and treated less favorably than others similarly situated on account of race or any other
20 [impermissible] criterion." (Gay v. Waiters' & Dairy Lunchmen's Union, 694 F.2d 531, 537
21 (9th Cir. (1982).)
22 Sgt. Oliver can establish a prima facie case of race or gender discrimination by showing
23 (1) that she is a member of a protected class (African-American and female); (2) she was
24 qualified for her position; (3) Defendant City disciplined her; and (4) Defendant City did not
25 discipline similarly-situated non-African-American female employees who violated the same or
26 similar work rules.1 (McDonald v. Santa Fe Trail Transportation, 427 U.S. 273, 96 S.Ct. 2574,
27
1
The question of whether Defendant City’s actions toward Sgt. Oliver constituted
28 “discipline” or an adverse action of any type is not at issue in the instant discovery motion and it
3
DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799
1 49 L.Ed.2d 493 (1976); Green v. Armstrong Rubber, 612 F.2d 967 (5th Cir. 1980); Turner v.
2 Texas Instruments, 555 F.2d 1251 (5th Cir. 1977); Garrett v. City & County of San Francisco,
3 818 F.2d 1515 (9th Cir. 1987).)
4 The requested information is relevant to Sgt. Oliver’s claims and could provide
5 information to establish that she was treated differently then other similarly situated individuals
6 employed at in the same capacity by Defendant City. (Guz v. Bechtel National, Inc. (2000) 24
7 Cal.4th 317, 366, 100 Cal.Rptr.2d 352; see also Iwekaogwu v. City of Los Angeles (1999) 75
8 Cal.App.4th 803, 816, 89 Cal.Rptr.2d 505.)
9 Inconsistency in the application of the decision-making process is evidence of pretext.
10 (See Jauregui v. City of Glendale, 852 F.2d 1128, 1135 (9th Cir. 1988) (inconsistency in the
11 City’s selective application of its asserted basis for denying promotion to Officer Jauregui itself
12 created an inference of unlawful discrimination); see also Dejung v. Superior Court (2008) 169
13 Cal.App.4th 533, 554 (court compares other candidates for a position for evidence of pretext).)
14 Irregularities and deviations from protocol support an inference of pretext sufficient to overcome
15 summary judgment. (Porter v. Cal. Dep't of Corrections, 419 F.3d 885, 896 (9th Cir. 2005).)
16 Departure from an employer’s own rules, policies, practices or procedures, may constitute
17 evidence of pretext and unlawful motive. (Gonzales v. Police Dept, City of San Jose, 901 F.2d
18 758 (9th Cir. 1990).)
19 Mr. Andersen’s employment records will show whether he was disciplined, reassigned
20 or counseled or suffered any adverse consequences for violating “the same or similar work
21 rules” allegedly violated by Sgt. Oliver and his work record compared to that of Sgt. Oliver.
22 (See Plaintiff’s Request for Judicial Notice, Swanson Report at pp. 9-15.) If Mr. Andersen was
23 not disciplined, reassigned, counseled or subjected to any adverse consequences for alleged
24 is one of the issues in dispute in the City’s Motion for Summary Judgment, or in the Alternative,
Summary Adjudication of Issues. Sgt. Oliver notes that “although an adverse employment action
25 must materially affect the terms, conditions, or privileges of employment to be actionable, the
determination of whether a particular action or course of conduct rises to the level of actionable
26 conduct should take into account the unique circumstances of the affected employee as well as the
workplace context of the claim” and it includes “the entire spectrum of employment actions that
27 are reasonably likely to adversely and materially affect an employee's job performance or
opportunity for advancement in his or her career.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36
28 Cal.4th 1028, 1052-1054.)
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DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799
1 deficiencies in his investigation of the same case, that fact itself is evidence of pretext sufficient
2 to overcome summary judgment. (See Porter v. Cal. Dept. of Corrections, 419 F.3d supra at
3 896; see also Morgan v. Regents of the University of Cal. (2000) 88 Cal.App.4th 52, 68-69.) If
4 he was maintained in his position or even promoted, that information is also relevant to the
5 inquiry. (Riske v. Superior Court (2016) 6 Cal.App.5th 647, 663-664.)
6 DEFENDANT’S REASONS WHY PLAINTIFF’S MOTION TO COMPEL SHOULD BE
7 DENIED:
8 Plaintiff’s Request for Production No. 21 seeks “The employment records of Jason
9 Andersen, excluding medical and benefits information,” which are indisputably private and
10 confidential “personnel records” of a peace officer, and items from within those records cannot be
11 disclosed without following the Pitchess procedure set forth in Evidence Code sections 1043 and
12 1046. (Pen. Code § 832.7; People v. Mooc (2001) 26 Cal.4th 1216, 1226.) The Pitchess statutes
13 apply equally to civil and criminal matters. (Haggerty v. Superior Court (2004) 117 Cal.App.4th
14 1079, 1085.)
15 The Court’s current review under “step one” of the Pitchess review process is whether
16 Plaintiff’s Motion has provided, at a minimum: (1) identification of the officer whose records are
17 sought; (2) a description “of the type of records or information sought”; and (3) “affidavits showing
18 good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject
19 matter involved in the pending litigation and stating upon reasonable belief that the governmental
20 agency identified has the records or information from the records.” (Evid. Code § 1043, subd.
21 (b)(1)-(3).) Compliance with the second and third prongs of section 1043(b) is lacking here.
22 Additionally, when evaluating whether the moving party has shown sufficient good cause, courts
23 consider four factors: (1) whether the requesting party has shown a logical connection between the
24 proposed claim or defense; (2) whether the requesting party’s request for Pitchess discovery is
25 factually specific and tailored to support the requesting party’s theory; (3) whether the requested
26 Pitchess discovery supports the proposed theory or would likely lead to information that would
27 support the theory; and (4) under what theory would the requested information be admissible at trial.
28 (Warrick v. Super. Ct. (2005) 35 Cal.4th 1011, 1027.) Applying these factors, Plaintiff’s request
5
DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799
1 remains problematic.
2 First, “employment records” is an overbroad term particularly in this context, and not
3 factually specific and tailored to Plaintiff’s claims, which per Warrick is a necessary element of the
4 court’s good cause analysis.
5 Second, “employment records” by itself is not a sufficient statutory-required description “of
6 the type of records or information sought.” The Supreme Court has stated that “the information
7 sought must be requested with sufficient specificity to preclude the possibility of a defendant’s
8 simply casting about for any helpful information.” (Mooc, 26 Cal.4th at 1226.) An example of a
9 sufficient description of records sought is found in City of Santa Cruz v. Municipal Court (1989) 49
10 Cal.3d 74, 90, where the Supreme Court found that defense counsel’s declaration stating the belief
11 that members of the public may have filed complaints of use of excessive force by specific officers
12 was adequate to trigger in camera review. The Supreme Court explained that “an affidavit which
13 describes the information sought as consisting of prior ‘complaints of excessive force’ by specific
14 officers … has specified a … ‘type’ of information within the plain meaning of the statute.” Id. at
15 90-91. “Employment records” cannot be a sufficient description of a “type of record[] or
16 information” sought under the Pitchess statutes; if it was, attorneys in criminal and civil cases would
17 simply make the same broad request to obtain unfettered access to officer personnel records.
18 Third, the affidavit or declaration provided by Plaintiff does not establish good cause.
19 Defendant does not dispute that Plaintiff’s counsel may attempt to prove good cause or identify
20 records through an affidavit “on information and belief.” However, counsel’s allegation here that
21 “on information and belief, that Mr. Andersen was not removed from any investigations, or
22 reassigned from CID, or subjected to any adverse actions or consequences,” is not a description of
23 a type of record or information sought. It is an allegation of inaction, which is not necessarily
24 tied to any kind of documentation or a description of a document. Moreover, it has not been
25 established that a removal from an investigation or reassignment is an adverse action. And as
26 stated in Plaintiff’s separate statement, Jason Andersen and Plaintiff actually worked in
27 completely different divisions at OPD so the relevance of personnel records from an employee in
28 another division is highly questionable in this context.
6
DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799
1 Fourth, Plaintiff cannot ask the Court to produce a full employment file simply to
2 confirm the absence of records. Plaintiff’s separate statement argues that “Mr. Andersen’s
3 employment records will show whether he was disciplined, reassigned or counseled or suffered
4 any adverse consequences for violating ‘the same or similar work rules’ allegedly violated by Sgt.
5 Oliver and his work record compared to that of Sgt. Oliver. . . If Mr. Andersen was not
6 disciplined, reassigned, counseled or subjected to any adverse consequences for alleged
7 deficiencies in his investigation of the same case, that fact itself is evidence of pretext sufficient
8 to overcome summary judgment.” As written, the request still appears to ask the Court to review
9 and order production of an officer’s “employment records” in their entirety. If there is a specific
10 type of record that Plaintiff seeks, it must be identified. In the Pitchess process, if a court
11 determines information should be produced, the scope of the information released is typically
12 limited. (See Alvarez v. Superior Court (2004) 117 Cal.App.4th 1107, 1112 (“Although not
13 required by the statutory scheme, the courts have generally refused to disclose verbatim reports or
14 records of any kind from peace officer personnel files, ordering instead . . . that the agency reveal
15 only the name, address and phone number of any prior complainants and witnesses and the dates
16 of the incidents in question.”) (internal citations and quotations omitted).) But courts cannot
17 summarize their review for the requesting party. Nor can it order the release of an employee’s
18 entire file for the requesting party to conduct its own independent review to prove a negative.
19 Fifth, to the extent the request refers to records relating to “whether he was disciplined,
20 reassigned or counseled or suffered any adverse consequences,” the request is improper because
21 only documentation of past officer misconduct similar to the misconduct alleged in the pending
22 litigation can be relevant and therefore subject to discovery. (California Highway Patrol v. Superior
23 Court (2000) 84 Cal.App.4th 1010.) Jason Andersen is not alleged to have discriminated against
24 Plaintiff, or harassed her in any way. As explained in the Riske case, which Plaintiff has also cited,
25 “When the officer’s conduct was material to the claim, good cause was found.” (Riske v. Superior
26 Court (2016) 6 Cal.App.5th 647, 659 (emphasis added).) Here, Plaintiff filed a civil lawsuit against
27 the City alleging discrimination (race and gender), a hostile work environment, and retaliation before
28 she retired from the Department. The conduct described in Plaintiff’s separate statement is an
7
DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799
1 allegation as to whether someone else at OPD decided to “remove,” “reassign,” or subject Jason
2 Andersen to “adverse actions or consequences.” That is conduct by another, not Jason Andersen’s
3 conduct.
4 In summary, the motion to compel should be denied as to this request based on the
5 overbroad request for “employment records” and corresponding lack of description regarding the
6 type of records or information sought, and the lack of good cause for the requested confidential
7 peace officer information.
8 PLAINTIFF’S REQUEST NO. 22:
9 The employment records of Brad Baker, excluding medical and benefits information.
10 DEFENDANT’S RESPONSE TO NO. 22:
11 The City objects to this request on the following grounds: (1) the request calls for
12 information protected by Cal. Penal Code § 832.7; (2) the request calls for information protected by
13 Cal. Evid. Code §§ 1040-43; (3) the request calls for confidential and private information of third
14 parties; (4) the request is not reasonably calculated to lead to the discovery of admissible evidence.
15 PLAINTIFF’S REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED:
16 One of the disputed issues in this retaliation, gender and race discrimination case is whether
17 Plaintiff Mildred Oliver, a former Oakland Police Department (OPD) Sergeant, was subjected to
18 discrimination based upon her gender and/or race, or retaliation when she was “scapegoated” in
19 connection with the investigation of the Celeste Guap scandal. Sgt. Oliver was assigned to OPD’s
20 Internal Affairs Department (IAD) in 2014 and was the only female IAD investigator out of eight
21 investigators. She was removed from her assignment to IAD in August 2016 for allegedly
22 conducting “a flawed investigation” into the Guap scandal which “caused significant negative
23 attention to the OPD.” Sgt. Oliver alleges that her removal from IAD was discriminatory and
24 retaliatory (see First Amended Complaint, paras. 8-11, 17-18, 29-39, 68; First, Second, Fourth and
25 Fifth Causes of Action).
26 Defendant City of Oakland’s Motion for Summary Judgment contends that Sgt. Oliver’s
27 removal from multiple IAD investigations “were simply routine personnel decisions” supported by
28 “legitimate nondiscriminatory reasons.” (See Defendant City of Oakland’s Memorandum of Points
8
DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799
1 and Authorities (MPA) at pp. 10:17-20, 12:6-24.) Defendant City alleges that there were
2 “deficiencies” in the handling of the IAD investigation which were highlighted by the independent
3 monitoring team (IMT) and later an independent investigator that were “legitimate
4 nondiscriminatory reasons” for Sgt. Oliver’s abrupt removal from IAD. (MPA at p. 14:7-16.)
5 Brad Baker was a similarly-situated OPD investigator assigned to investigate the Celeste
6 Guap scandal. Brad Baker is a white male employee. He was assigned to the Criminal
7 Investigations Division (CID) and handled the CID investigation of the Guap case before and about
8 the same time that Sgt. Oliver was assigned to the IAD investigation of the case. Mr. Baker’s
9 actions and investigative approach to the Guap case was also more severely criticized by the
10 independent monitoring team (IMT) and later an independent investigator than Sgt. Oliver’s
11 investigation. (See Plaintiff’s Request for Judicial Notice, Swanson Report at pp. 9-15.)
12 Counsel alleges, on information and belief, that Mr. Baker was not removed from any
13 investigations, or reassigned from CID, or subjected to any adverse actions or consequences, based
14 upon those concerns. (See Second Supplemental Declaration of Pamela Y. Price filed and served
15 concurrently herewith at p.2:14-21.) Whether Defendant City disciplined and/or treated Sgt. Oliver
16 differently from Mr. Baker despite the documented deficiencies in his investigation is a material
17 disputed fact in this action, and relevant to the issues of pretext and discrimination.
18 Sgt. Oliver’s claims of race and gender discrimination and retaliation can be analyzed under
19 a disparate treatment model, which applies when an individual [has been] “singled out and treated
20 less favorably than others similarly situated on account of race or any other [impermissible]
21 criterion." (Gay v. Waiters' & Dairy Lunchmen's Union, 694 F.2d 531, 537 (9th Cir. (1982).)
22 Sgt. Oliver can establish a prima facie case of race or gender discrimination by showing (1)
23 that she is a member of a protected class (African-American and female); (2) she was qualified for
24 her position; (3) Defendant City disciplined her; and (4) Defendant City did not discipline similarly-
25 situated non-African-American female employees who violated the same or similar work rules.
26 (McDonald v. Santa Fe Trail Transportation, 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976);
27 Green v. Armstrong Rubber, 612 F.2d 967 (5th Cir. 1980); Turner v. Texas Instruments, 555 F.2d
28 1251 (5th Cir. 1977); Garrett v. City & County of San Francisco, 818 F.2d 1515 (9th Cir. 1987).)
9
DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799
1 The requested information is relevant to Sgt. Oliver’s claims and could provide information
2 to establish that she was treated differently then other similarly situated individuals employed at in
3 the same capacity by Defendant City. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 366, 100
4 Cal.Rptr.2d 352; see also Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 816, 89
5 Cal.Rptr.2d 505.)
6 Inconsistency in the application of the decision-making process is evidence of pretext. (See
7 Jauregui v. City of Glendale, 852 F.2d 1128, 1135 (9th Cir. 1988) (inconsistency in the City’s
8 selective application of its asserted basis for denying promotion to Officer Jauregui itself created an
9 inference of unlawful discrimination); see also Dejung v. Superior Court (2008) 169 Cal.App.4th
10 533, 554 (court compares other candidates for a position for evidence of pretext).) Irregularities and
11 deviations from protocol support an inference of pretext sufficient to overcome summary judgment.
12 (Porter v. Cal. Dep't of Corrections, 419 F.3d 885, 896 (9th Cir. 2005).) Departure from an
13 employer’s own rules, policies, practices or procedures, may constitute evidence of pretext and
14 unlawful motive. (Gonzales v. Police Dept, City of San Jose, 901 F.2d 758 (9th Cir. 1990).)
15 Mr. Baker’s employment records will show whether he was disciplined, reassigned or
16 counseled or suffered any adverse consequences for violating “the same or similar work rules”
17 allegedly violated by Sgt. Oliver and his work record compared to that of Sgt. Oliver. (See Plaintiff’s
18 Request for Judicial Notice, Swanson Report at pp. 9-15.) If Mr. Baker was not disciplined,
19 reassigned, counseled or subjected to any adverse consequences for alleged deficiencies in his
20 investigation of the same case, that fact itself is evidence of pretext sufficient to overcome summary
21 judgment. (See Porter v. Cal. Dept. of Corrections, 419 F.3d supra at 896; see also Morgan v.
22 Regents of the University of Cal. (2000) 88 Cal.App.4th 52, 68-69.) If he was maintained in his
23 position or even promoted, that information is also relevant to the inquiry. (Riske v. Superior Court
24 (2016) 6 Cal.App.5th 647, 663-664.)
25 DEFENDANT’S REASONS WHY PLAINTIFF’S MOTION TO COMPEL SHOULD BE
26 DENIED:
27 Plaintiff’s Request for Production No. 22 seeks “The employment records of Brad Baker,
28 excluding medical and benefits information,” which are indisputably private and confidential
10
DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799
1 “personnel records” of a peace officer, and items from within those records cannot be disclosed
2 without following the Pitchess procedure set forth in Evidence Code sections 1043 and 1046. (Pen.
3 Code § 832.7; Mooc, 26 Cal.4th at 1226.) Per Plaintiff’s separate statement, Brad Baker worked in
4 the Criminal Investigation Division, with Jason Andersen. In other words, Brad Baker did not
5 work with Plaintiff in the Internal Affairs Division. Because Plaintiff’s separate statement
6 argument for Request for Production No. 22 is essentially the same as the argument for Request
7 for Production No. 21 and the subject employees are similarly situated, Defendant incorporates
8 here its full “Reasons Why Plaintiff’s Motion to Compel Should be Denied” from Request for
9 Production No. 21 above. The motion to compel a response to this request should be denied for
10 the same reasons.
11 PLAINTIFF’S REQUEST NO. 23:
12 The employment records of Dominique Arotzarena, excluding medical and benefits
13 information.
14 DEFENDANT’S RESPONSE TO NO. 23:
15 The City objects to this request on the following grounds: (1) the request calls for
16 information protected by Cal. Penal Code § 832.7; (2) the request calls for information protected by
17 Cal. Evid. Code §§ 1040-43; (3) the request calls for confidential and private information of third
18 parties; (4) the request is not reasonably calculated to lead to the discovery of admissible evidence.
19 PLAINTIFF’S REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED:
20 The disputed issues in this gender and race discrimination case include (1) whether Sgt.
21 Oliver was subjected to discrimination based upon her gender and/or race or retaliation when she
22 was “scapegoated” and removed from her assignment to IAD in August 2016; (2) whether her new
23 supervisor, Acting Lt. Dominique Arotzarena created a hostile work environment for her based on
24 her gender or race; and (3) whether Lt. Arotzarena instigated an unfair investigation which resulted
25 in overly harsh disciplinary action against Sgt. Oliver based on her gender and/or race, or in
26 retaliation for her previous protected activity in connection with the Guap scandal. (See First
27 Amended Complaint, paras. 40-46; First, Second, Third, Fourth and Fifth Causes of Action).
28 Lt. Dominique Arotzarena’s actions, motive and intent are at the heart of the allegations in
11
DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799
1 this case. Sgt. Oliver has alleged that he created a hostile work environment for her by inter alia
2 undermining her supervisory authority and verbally belittling her in front of her colleagues. (First
3 Amended Complaint, para. 46.) Plaintiff is also informed and believes, and has alleged that he
4 played a significant role in instigating disciplinary action against her and Chief Kirkpatrick’s
5 decision to demote her. (Ibid. at paras. 45, 60.)
6 Under the “cat’s paw” theory, Lt. Arotzarena’s improper motives can be imputed to the
7 decisionmaker, in this case, Chief Kirkpatrick. If the decisionmakers worked closely together in
8 formulating personnel decisions, a supervisor’s bias may be imputed to the subordinate and vice-
9 versa. (Dominguez-Curry v. Nevada Transportation Dept., 424 F.3d 1027, at fn. 5, compiling cases,
10 including Wells v. New Cherokee Corp., 58 F.3d 233, 237-238 (6th Cir. 1995) (a supervisor’s animus
11 imputed to the ultimate decisionmaker, because evidence showed that the two “worked closely
12 together and consulted with each other on personnel decisions” and they “themselves testified that
13 they acted jointly”) and Laxton v. Gap Inc., 333 F.3d 572, 584 (5th Cir. 2003) (the relevant inquiry is
14 whether the person who made the discriminatory remark “had influence or leverage over” the formal
15 decisionmaker).)
16 In addition to his employment history, Lt. Arotzarena’s employment records should include
17 any complaints of gender and/or race discrimination or harassment against him, complaints of
18 retaliation against him, and whether he has himself ever alleged any form of retaliation or
19 harassment, and whether he has been counselled, reprimanded or disciplined for prior similar
20 conduct, This information is probative of his motives and the intent underlying his actions toward
21 Sgt. Oliver. When the officer’s conduct is material to the claims, good cause exists for production of
22 his personnel records. (Riske v. Superior Court (2016) 6 Cal.App.5th 647, 659.)
23 Personnel files and other performance-related documents are discoverable under California
24 law to show other allegations of misconduct or discriminatory intent. (Bihun v. AT&T Information
25 Systems (1993) 13 Cal.App.4th 976, 16 Cal.Rptr.2d 787; see also Riske v. Superior Court, 6
26 Cal.App.5th supra at 657-658.) It has long been held that any doubts as to relevance should generally
27 be resolved in favor of permitting discovery. (Pacific Telephone & Telegraph Co. v. Superior Court
28 (1970) 2 Cal.3d 161, 173, 84 Cal.Rptr. 718; accord, Williams v. Superior Court (2017) 3 Cal.5th
12
DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799
1 531, 542.)
2 DEFENDANT’S REASONS WHY PLAINTIFF’S MOTION TO COMPEL SHOULD BE
3 DENIED:
4 Plaintiff’s Request for Production No. 23 seeks “The employment records of Dominique
5 Arotzarena, excluding medical and benefits information,” which are indisputably private and
6 confidential “personnel records” of a peace officer, and items from within those records cannot be
7 disclosed without following the Pitchess procedure set forth in Evidence Code sections 1043 and
8 1046. (Pen. Code § 832.7; Mooc, 26 Cal.4th at 1226.)
9 This request is unique from Requests 21-22, because Plaintiff’s complaint specifically
10 alleges this employee allegedly created a hostile work environment. Regarding the broad scope of
11 this request, Defendant incorporates here its full “Reasons Why Plaintiff’s Motion to Compel
12 Should be Denied” from Request for Production No. 21 above. A request for all “employment
13 records” or “employment history” as it is stated in the separate statement is simply too broad for
14 the reasons outlined above. While Plaintiff’s separate statement cites several cases involving
15 employment discrimination claims, the majority of those cases do not involve peace officer
16 personnel files, and none discuss factors relevant to the Court’s Pitchess analysis here.
17 Additionally, while it appears that Plaintiff’s separate statement attempts to narrow the
18 scope of the request by arguing that Dominique Arotzarena’s “employment records should include .
19 . . whether he has himself ever alleged any form of retaliation or harassment,” that request remains
20 problematic because it fails to identify any specific subject, and ignores the hypothetical privacy
21 rights of any potential third-party employees, who would potentially have their own Pitchess
22 protections. This is an example of the type of “casting about” for information that is precluded by
23 Mooc. (Mooc, 26 Cal.4th at 1226.)
24 Finally, Plaintiff’s separate statement states that records “should include any complaints of
25 gender and/or race discrimination or harassment against him, complaints of retaliation against him . .
26 . and whether he has been counselled, reprimanded or disciplined.” If the Court does find that this
27 is a specific type of record within “employment records” which has been adequately identified
28 under Evidence Code section 1043(b)(2) and that good cause exists to conduct an in camera
13
DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799
1 review, during the in camera review the Court must still exclude facts “sought to be disclosed that
2 are so remote as to make disclosure of little or no practical benefit.” (Evid. Code § 1045(b)(2).2
3 PLAINTIFF’S REQUEST NO. 24:
4 Any and all DOCUMENTS which REFLECT, RELATE or REFER TO YOUR decision to
5 discipline Plaintiff Mildred Oliver, including but not limited to the entire IAD Investigation File No.
6 17-0139.
7 DEFENDANT’S RESPONSE TO NO. 24:
8 The City objects to this request on the following grounds: (1) the request is overbroad; (2) the
9 request calls for information protected by Cal. Penal Code § 832.7; (3) the request calls for
10 information protected by Cal. Evid. Code §§ 1040-43; and (4) the request calls for confidential and
11 private information of third parties.
12 Without waiving these objections, the City’s custodian of records will provide the entire IAD
13 File for IAD investigation No. 17-0139 to the trial court for an in camera review pursuant to a
14 properly noticed Pitchess motion. To the extent there are other documents beyond the IAD files, the
15 City will produce responsive non-privileged documents in its custody and control.
16 PLAINTIFF’S REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED:
17 Based on the City’s response, this issue is moot.
18 DEFENDANT’S REASONS WHY PLAINTIFF’S MOTION TO COMPEL SHOULD BE
19 DENIED:
20 Defendant agrees with Plaintiff’s further response, but adds that while Defendant will
21 provide the entire IAD file for IAD investigation No. 17-0139 to the trial court for an in camera
22 review, that file contains multiple subject officers, one of which was Plaintiff. Defendant’s position
23 is that the Court should determine before the in camera review of the IAD file whether Plaintiff seeks
24 information regarding all subjects, and whether good cause is established for information related to
25 the other officers before the Court conducts it review.
26 PLAINTIFF’S REQUEST NO. 26:
27 2
Defendant’s February 2, 2022 “Response to Pitchess Motion” cites to an outdated version of
Evidence Code section 1045(b)(1), and cases interpreting the same, at page 6, lines 16-22, and the
28 argument and citations should be disregarded.
14
DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799
1 Any and all DOCUMENTS which REFLECT, RELATE or REFER TO YOUR
2 investigation referenced in the e-mail dated November 16, 2015 from Belinda Calvin-Adlao to
3 Spruce Metzger in the Oakland City Administrator’s office, as described in the article “High-Level
4 City Staff Knew of Police Sex Crimes Months Before Oakland Mayor Says She Was Informed”
5 published on February 10, 2017 and attached hereto as Exhibit A, including but not limited to the
6 entire Investigation File.
7 DEFENDANT’S RESPONSE TO NO. 26:
8 The City objects to this request on the following grounds: (1) the term “investigation” is
9 vague and overbroad; (2) the request calls for information protected by Cal. Penal Code § 832.7; (3)
10 the request calls for information protected by Cal. Evid. Code §§ 1040-43; (4) the request calls for
11 information protected by Cal. Code of Civ. Proc. § 129; (5) the request calls for confidential and
12 private information of third parties; (6) the request is not reason
Preview
1 BARBARA J. PARKER, City Attorney – SBN 069722 MARIA BEE, Chief Assistant City Attorney – SBN 167716 2 KEVIN MCLAUGHLIN, Supervising Deputy City Attorney – SBN 251477 MICHAEL QUIRK, Deputy City Attorney – SBN 283351 3 One Frank H. Ogawa Plaza, 6th Floor Oakland, California 94612 4 Telephone: (510) 238-6520 Fax: (510) 238-6500 Email: mquirk@oaklandcityattorney.org 5 33244/3157121 6 Attorneys for Defendant CITY OF OAKLAND 7 (also erroneously sued as OAKLAND POLICE DEPARTMENT) 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF ALAMEDA 11 MILDRED L. OLIVER, Case No. RG19007799 12 Plaintiff, ASSIGNED FOR ALL PURPOSES TO 13 JUDGE James Reilly v. DEPARTMENT 25 14 CITY OF OAKLAND, OAKLAND POLICE DEFENDANT’S RESPONSE TO 15 DEPARTMENT, AND DOES 1-25, PLAINTIFF’S SEPARATE STATEMENT INCLUSIVE OF DOCUMENTS TO BE COMPELLED 16 PURSUANT TO PLAINTIFF’S Defendants. PITCHESS MOTION 17 DATE: April 11, 2022 18 TIME: 9:00 a.m. DEPT: 25 19 Complaint Filed: February 21, 2019 20 Trial Date: TBD 21 22 23 24 25 26 27 28 1 DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799 1 DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT OF ISSUES IN 2 DISPUTE 3 Below, Defendant responds to each of Plaintiff’s reasons why further responses should be 4 compelled, but based on the further responses in Plaintiff and Defendant’s separate statements, it 5 appears the remaining requests at issue are RPD 21-24 and 31. 6 PLAINTIFF’S REQUEST NO. 21: 7 The employment records of Jason Andersen, excluding medical and benefits information. 8 DEFENDANT’S RESPONSE TO NO. 21: 9 The City objects to this request on the following grounds: (1) the request calls for 10 information protected by Cal. Penal Code § 832.7; (2) the request calls for information protected by 11 Cal. Evid. Code §§ 1040-43; (3) the request calls for confidential and private information of third 12 parties; (4) the request is not reasonably calculated to lead to the discovery of admissible evidence. 13 PLAINTIFF’S REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED: 14 One of the disputed issues in this retaliation, gender and race discrimination case is whether 15 Plaintiff Mildred Oliver, a former Oakland Police Department (OPD) Sergeant, was subjected to 16 discrimination based upon her gender and/or race, or retaliation when she was “scapegoated” in 17 connection with the investigation of the Celeste Guap scandal. Sgt. Oliver was assigned to OPD’s 18 Internal Affairs Department (IAD) in 2014 and was the only female IAD investigator out of eight 19 investigators. She was removed from her assignment to IAD in August 2016 for allegedly 20 conducting “a flawed investigation” into the Guap scandal which “caused significant negative 21 attention to the OPD.” Sgt. Oliver alleges that her removal from IAD was discriminatory and 22 retaliatory (see First Amended Complaint, paras. 8-11, 17-18, 29-39, 68; First, Second, Fourth and 23 Fifth Causes of Action). 24 Defendant City of Oakland’s Motion for Summary Judgment contends that Sgt. Oliver’s 25 removal from multiple IAD investigations “were simply routine personnel decisions” supported by 26 “legitimate nondiscriminatory reasons.” (See Defendant City of Oakland’s Memorandum of Points 27 and Authorities (MPA) at pp. 10:17-20, 12:6-24.) Defendant City alleges that there were 28 “deficiencies” in the handling of the IAD investigation which were highlighted by the independent 2 DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799 1 monitoring team (IMT) and later an independent investigator that were “legitimate 2 nondiscriminatory reasons” for Sgt. Oliver’s abrupt removal from IAD. (MPA at p. 14:7-16.) 3 Jason Andersen was a similarly-situated OPD investigator assigned to investigate the Celeste Guap 4 scandal. Jason Andersen is a white male employee. He was assigned to the Criminal Investigations 5 Division (CID) and handled the CID investigation of the Guap case before and about the same 6 time that Sgt. Oliver was assigned to the IAD investigation of the case. Mr. Anderson’s actions 7 and investigative approach to the Guap case was also more severely criticized by the independent 8 monitoring team (IMT) and later an independent investigator than Sgt. Oliver’s investigation. 9 (See Plaintiff’s Request for Judicial Notice, Swanson Report at pp. 9-15.) 10 Counsel alleges, on information and belief, that Mr. Andersen was not removed from any 11 investigations, or reassigned from CID, or subjected to any adverse actions or consequences, 12 based upon those concerns. (See Second Supplemental Declaration of Pamela Y. Price filed and 13 served concurrently herewith at p. 2:14-21.) Whether Defendant City disciplined and/or treated 14 Sgt. Oliver differently from Mr. Andersen despite the documented deficiencies in his 15 investigation is a material disputed fact in this action, and relevant to the issues of pretext and 16 discrimination. 17 Sgt. Oliver’s claims of race and gender discrimination and retaliation can be analyzed 18 under a disparate treatment model, which applies when an individual [has been] “singled out 19 and treated less favorably than others similarly situated on account of race or any other 20 [impermissible] criterion." (Gay v. Waiters' & Dairy Lunchmen's Union, 694 F.2d 531, 537 21 (9th Cir. (1982).) 22 Sgt. Oliver can establish a prima facie case of race or gender discrimination by showing 23 (1) that she is a member of a protected class (African-American and female); (2) she was 24 qualified for her position; (3) Defendant City disciplined her; and (4) Defendant City did not 25 discipline similarly-situated non-African-American female employees who violated the same or 26 similar work rules.1 (McDonald v. Santa Fe Trail Transportation, 427 U.S. 273, 96 S.Ct. 2574, 27 1 The question of whether Defendant City’s actions toward Sgt. Oliver constituted 28 “discipline” or an adverse action of any type is not at issue in the instant discovery motion and it 3 DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799 1 49 L.Ed.2d 493 (1976); Green v. Armstrong Rubber, 612 F.2d 967 (5th Cir. 1980); Turner v. 2 Texas Instruments, 555 F.2d 1251 (5th Cir. 1977); Garrett v. City & County of San Francisco, 3 818 F.2d 1515 (9th Cir. 1987).) 4 The requested information is relevant to Sgt. Oliver’s claims and could provide 5 information to establish that she was treated differently then other similarly situated individuals 6 employed at in the same capacity by Defendant City. (Guz v. Bechtel National, Inc. (2000) 24 7 Cal.4th 317, 366, 100 Cal.Rptr.2d 352; see also Iwekaogwu v. City of Los Angeles (1999) 75 8 Cal.App.4th 803, 816, 89 Cal.Rptr.2d 505.) 9 Inconsistency in the application of the decision-making process is evidence of pretext. 10 (See Jauregui v. City of Glendale, 852 F.2d 1128, 1135 (9th Cir. 1988) (inconsistency in the 11 City’s selective application of its asserted basis for denying promotion to Officer Jauregui itself 12 created an inference of unlawful discrimination); see also Dejung v. Superior Court (2008) 169 13 Cal.App.4th 533, 554 (court compares other candidates for a position for evidence of pretext).) 14 Irregularities and deviations from protocol support an inference of pretext sufficient to overcome 15 summary judgment. (Porter v. Cal. Dep't of Corrections, 419 F.3d 885, 896 (9th Cir. 2005).) 16 Departure from an employer’s own rules, policies, practices or procedures, may constitute 17 evidence of pretext and unlawful motive. (Gonzales v. Police Dept, City of San Jose, 901 F.2d 18 758 (9th Cir. 1990).) 19 Mr. Andersen’s employment records will show whether he was disciplined, reassigned 20 or counseled or suffered any adverse consequences for violating “the same or similar work 21 rules” allegedly violated by Sgt. Oliver and his work record compared to that of Sgt. Oliver. 22 (See Plaintiff’s Request for Judicial Notice, Swanson Report at pp. 9-15.) If Mr. Andersen was 23 not disciplined, reassigned, counseled or subjected to any adverse consequences for alleged 24 is one of the issues in dispute in the City’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication of Issues. Sgt. Oliver notes that “although an adverse employment action 25 must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable 26 conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim” and it includes “the entire spectrum of employment actions that 27 are reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement in his or her career.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 28 Cal.4th 1028, 1052-1054.) 4 DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799 1 deficiencies in his investigation of the same case, that fact itself is evidence of pretext sufficient 2 to overcome summary judgment. (See Porter v. Cal. Dept. of Corrections, 419 F.3d supra at 3 896; see also Morgan v. Regents of the University of Cal. (2000) 88 Cal.App.4th 52, 68-69.) If 4 he was maintained in his position or even promoted, that information is also relevant to the 5 inquiry. (Riske v. Superior Court (2016) 6 Cal.App.5th 647, 663-664.) 6 DEFENDANT’S REASONS WHY PLAINTIFF’S MOTION TO COMPEL SHOULD BE 7 DENIED: 8 Plaintiff’s Request for Production No. 21 seeks “The employment records of Jason 9 Andersen, excluding medical and benefits information,” which are indisputably private and 10 confidential “personnel records” of a peace officer, and items from within those records cannot be 11 disclosed without following the Pitchess procedure set forth in Evidence Code sections 1043 and 12 1046. (Pen. Code § 832.7; People v. Mooc (2001) 26 Cal.4th 1216, 1226.) The Pitchess statutes 13 apply equally to civil and criminal matters. (Haggerty v. Superior Court (2004) 117 Cal.App.4th 14 1079, 1085.) 15 The Court’s current review under “step one” of the Pitchess review process is whether 16 Plaintiff’s Motion has provided, at a minimum: (1) identification of the officer whose records are 17 sought; (2) a description “of the type of records or information sought”; and (3) “affidavits showing 18 good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject 19 matter involved in the pending litigation and stating upon reasonable belief that the governmental 20 agency identified has the records or information from the records.” (Evid. Code § 1043, subd. 21 (b)(1)-(3).) Compliance with the second and third prongs of section 1043(b) is lacking here. 22 Additionally, when evaluating whether the moving party has shown sufficient good cause, courts 23 consider four factors: (1) whether the requesting party has shown a logical connection between the 24 proposed claim or defense; (2) whether the requesting party’s request for Pitchess discovery is 25 factually specific and tailored to support the requesting party’s theory; (3) whether the requested 26 Pitchess discovery supports the proposed theory or would likely lead to information that would 27 support the theory; and (4) under what theory would the requested information be admissible at trial. 28 (Warrick v. Super. Ct. (2005) 35 Cal.4th 1011, 1027.) Applying these factors, Plaintiff’s request 5 DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799 1 remains problematic. 2 First, “employment records” is an overbroad term particularly in this context, and not 3 factually specific and tailored to Plaintiff’s claims, which per Warrick is a necessary element of the 4 court’s good cause analysis. 5 Second, “employment records” by itself is not a sufficient statutory-required description “of 6 the type of records or information sought.” The Supreme Court has stated that “the information 7 sought must be requested with sufficient specificity to preclude the possibility of a defendant’s 8 simply casting about for any helpful information.” (Mooc, 26 Cal.4th at 1226.) An example of a 9 sufficient description of records sought is found in City of Santa Cruz v. Municipal Court (1989) 49 10 Cal.3d 74, 90, where the Supreme Court found that defense counsel’s declaration stating the belief 11 that members of the public may have filed complaints of use of excessive force by specific officers 12 was adequate to trigger in camera review. The Supreme Court explained that “an affidavit which 13 describes the information sought as consisting of prior ‘complaints of excessive force’ by specific 14 officers … has specified a … ‘type’ of information within the plain meaning of the statute.” Id. at 15 90-91. “Employment records” cannot be a sufficient description of a “type of record[] or 16 information” sought under the Pitchess statutes; if it was, attorneys in criminal and civil cases would 17 simply make the same broad request to obtain unfettered access to officer personnel records. 18 Third, the affidavit or declaration provided by Plaintiff does not establish good cause. 19 Defendant does not dispute that Plaintiff’s counsel may attempt to prove good cause or identify 20 records through an affidavit “on information and belief.” However, counsel’s allegation here that 21 “on information and belief, that Mr. Andersen was not removed from any investigations, or 22 reassigned from CID, or subjected to any adverse actions or consequences,” is not a description of 23 a type of record or information sought. It is an allegation of inaction, which is not necessarily 24 tied to any kind of documentation or a description of a document. Moreover, it has not been 25 established that a removal from an investigation or reassignment is an adverse action. And as 26 stated in Plaintiff’s separate statement, Jason Andersen and Plaintiff actually worked in 27 completely different divisions at OPD so the relevance of personnel records from an employee in 28 another division is highly questionable in this context. 6 DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799 1 Fourth, Plaintiff cannot ask the Court to produce a full employment file simply to 2 confirm the absence of records. Plaintiff’s separate statement argues that “Mr. Andersen’s 3 employment records will show whether he was disciplined, reassigned or counseled or suffered 4 any adverse consequences for violating ‘the same or similar work rules’ allegedly violated by Sgt. 5 Oliver and his work record compared to that of Sgt. Oliver. . . If Mr. Andersen was not 6 disciplined, reassigned, counseled or subjected to any adverse consequences for alleged 7 deficiencies in his investigation of the same case, that fact itself is evidence of pretext sufficient 8 to overcome summary judgment.” As written, the request still appears to ask the Court to review 9 and order production of an officer’s “employment records” in their entirety. If there is a specific 10 type of record that Plaintiff seeks, it must be identified. In the Pitchess process, if a court 11 determines information should be produced, the scope of the information released is typically 12 limited. (See Alvarez v. Superior Court (2004) 117 Cal.App.4th 1107, 1112 (“Although not 13 required by the statutory scheme, the courts have generally refused to disclose verbatim reports or 14 records of any kind from peace officer personnel files, ordering instead . . . that the agency reveal 15 only the name, address and phone number of any prior complainants and witnesses and the dates 16 of the incidents in question.”) (internal citations and quotations omitted).) But courts cannot 17 summarize their review for the requesting party. Nor can it order the release of an employee’s 18 entire file for the requesting party to conduct its own independent review to prove a negative. 19 Fifth, to the extent the request refers to records relating to “whether he was disciplined, 20 reassigned or counseled or suffered any adverse consequences,” the request is improper because 21 only documentation of past officer misconduct similar to the misconduct alleged in the pending 22 litigation can be relevant and therefore subject to discovery. (California Highway Patrol v. Superior 23 Court (2000) 84 Cal.App.4th 1010.) Jason Andersen is not alleged to have discriminated against 24 Plaintiff, or harassed her in any way. As explained in the Riske case, which Plaintiff has also cited, 25 “When the officer’s conduct was material to the claim, good cause was found.” (Riske v. Superior 26 Court (2016) 6 Cal.App.5th 647, 659 (emphasis added).) Here, Plaintiff filed a civil lawsuit against 27 the City alleging discrimination (race and gender), a hostile work environment, and retaliation before 28 she retired from the Department. The conduct described in Plaintiff’s separate statement is an 7 DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799 1 allegation as to whether someone else at OPD decided to “remove,” “reassign,” or subject Jason 2 Andersen to “adverse actions or consequences.” That is conduct by another, not Jason Andersen’s 3 conduct. 4 In summary, the motion to compel should be denied as to this request based on the 5 overbroad request for “employment records” and corresponding lack of description regarding the 6 type of records or information sought, and the lack of good cause for the requested confidential 7 peace officer information. 8 PLAINTIFF’S REQUEST NO. 22: 9 The employment records of Brad Baker, excluding medical and benefits information. 10 DEFENDANT’S RESPONSE TO NO. 22: 11 The City objects to this request on the following grounds: (1) the request calls for 12 information protected by Cal. Penal Code § 832.7; (2) the request calls for information protected by 13 Cal. Evid. Code §§ 1040-43; (3) the request calls for confidential and private information of third 14 parties; (4) the request is not reasonably calculated to lead to the discovery of admissible evidence. 15 PLAINTIFF’S REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED: 16 One of the disputed issues in this retaliation, gender and race discrimination case is whether 17 Plaintiff Mildred Oliver, a former Oakland Police Department (OPD) Sergeant, was subjected to 18 discrimination based upon her gender and/or race, or retaliation when she was “scapegoated” in 19 connection with the investigation of the Celeste Guap scandal. Sgt. Oliver was assigned to OPD’s 20 Internal Affairs Department (IAD) in 2014 and was the only female IAD investigator out of eight 21 investigators. She was removed from her assignment to IAD in August 2016 for allegedly 22 conducting “a flawed investigation” into the Guap scandal which “caused significant negative 23 attention to the OPD.” Sgt. Oliver alleges that her removal from IAD was discriminatory and 24 retaliatory (see First Amended Complaint, paras. 8-11, 17-18, 29-39, 68; First, Second, Fourth and 25 Fifth Causes of Action). 26 Defendant City of Oakland’s Motion for Summary Judgment contends that Sgt. Oliver’s 27 removal from multiple IAD investigations “were simply routine personnel decisions” supported by 28 “legitimate nondiscriminatory reasons.” (See Defendant City of Oakland’s Memorandum of Points 8 DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799 1 and Authorities (MPA) at pp. 10:17-20, 12:6-24.) Defendant City alleges that there were 2 “deficiencies” in the handling of the IAD investigation which were highlighted by the independent 3 monitoring team (IMT) and later an independent investigator that were “legitimate 4 nondiscriminatory reasons” for Sgt. Oliver’s abrupt removal from IAD. (MPA at p. 14:7-16.) 5 Brad Baker was a similarly-situated OPD investigator assigned to investigate the Celeste 6 Guap scandal. Brad Baker is a white male employee. He was assigned to the Criminal 7 Investigations Division (CID) and handled the CID investigation of the Guap case before and about 8 the same time that Sgt. Oliver was assigned to the IAD investigation of the case. Mr. Baker’s 9 actions and investigative approach to the Guap case was also more severely criticized by the 10 independent monitoring team (IMT) and later an independent investigator than Sgt. Oliver’s 11 investigation. (See Plaintiff’s Request for Judicial Notice, Swanson Report at pp. 9-15.) 12 Counsel alleges, on information and belief, that Mr. Baker was not removed from any 13 investigations, or reassigned from CID, or subjected to any adverse actions or consequences, based 14 upon those concerns. (See Second Supplemental Declaration of Pamela Y. Price filed and served 15 concurrently herewith at p.2:14-21.) Whether Defendant City disciplined and/or treated Sgt. Oliver 16 differently from Mr. Baker despite the documented deficiencies in his investigation is a material 17 disputed fact in this action, and relevant to the issues of pretext and discrimination. 18 Sgt. Oliver’s claims of race and gender discrimination and retaliation can be analyzed under 19 a disparate treatment model, which applies when an individual [has been] “singled out and treated 20 less favorably than others similarly situated on account of race or any other [impermissible] 21 criterion." (Gay v. Waiters' & Dairy Lunchmen's Union, 694 F.2d 531, 537 (9th Cir. (1982).) 22 Sgt. Oliver can establish a prima facie case of race or gender discrimination by showing (1) 23 that she is a member of a protected class (African-American and female); (2) she was qualified for 24 her position; (3) Defendant City disciplined her; and (4) Defendant City did not discipline similarly- 25 situated non-African-American female employees who violated the same or similar work rules. 26 (McDonald v. Santa Fe Trail Transportation, 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976); 27 Green v. Armstrong Rubber, 612 F.2d 967 (5th Cir. 1980); Turner v. Texas Instruments, 555 F.2d 28 1251 (5th Cir. 1977); Garrett v. City & County of San Francisco, 818 F.2d 1515 (9th Cir. 1987).) 9 DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799 1 The requested information is relevant to Sgt. Oliver’s claims and could provide information 2 to establish that she was treated differently then other similarly situated individuals employed at in 3 the same capacity by Defendant City. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 366, 100 4 Cal.Rptr.2d 352; see also Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 816, 89 5 Cal.Rptr.2d 505.) 6 Inconsistency in the application of the decision-making process is evidence of pretext. (See 7 Jauregui v. City of Glendale, 852 F.2d 1128, 1135 (9th Cir. 1988) (inconsistency in the City’s 8 selective application of its asserted basis for denying promotion to Officer Jauregui itself created an 9 inference of unlawful discrimination); see also Dejung v. Superior Court (2008) 169 Cal.App.4th 10 533, 554 (court compares other candidates for a position for evidence of pretext).) Irregularities and 11 deviations from protocol support an inference of pretext sufficient to overcome summary judgment. 12 (Porter v. Cal. Dep't of Corrections, 419 F.3d 885, 896 (9th Cir. 2005).) Departure from an 13 employer’s own rules, policies, practices or procedures, may constitute evidence of pretext and 14 unlawful motive. (Gonzales v. Police Dept, City of San Jose, 901 F.2d 758 (9th Cir. 1990).) 15 Mr. Baker’s employment records will show whether he was disciplined, reassigned or 16 counseled or suffered any adverse consequences for violating “the same or similar work rules” 17 allegedly violated by Sgt. Oliver and his work record compared to that of Sgt. Oliver. (See Plaintiff’s 18 Request for Judicial Notice, Swanson Report at pp. 9-15.) If Mr. Baker was not disciplined, 19 reassigned, counseled or subjected to any adverse consequences for alleged deficiencies in his 20 investigation of the same case, that fact itself is evidence of pretext sufficient to overcome summary 21 judgment. (See Porter v. Cal. Dept. of Corrections, 419 F.3d supra at 896; see also Morgan v. 22 Regents of the University of Cal. (2000) 88 Cal.App.4th 52, 68-69.) If he was maintained in his 23 position or even promoted, that information is also relevant to the inquiry. (Riske v. Superior Court 24 (2016) 6 Cal.App.5th 647, 663-664.) 25 DEFENDANT’S REASONS WHY PLAINTIFF’S MOTION TO COMPEL SHOULD BE 26 DENIED: 27 Plaintiff’s Request for Production No. 22 seeks “The employment records of Brad Baker, 28 excluding medical and benefits information,” which are indisputably private and confidential 10 DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799 1 “personnel records” of a peace officer, and items from within those records cannot be disclosed 2 without following the Pitchess procedure set forth in Evidence Code sections 1043 and 1046. (Pen. 3 Code § 832.7; Mooc, 26 Cal.4th at 1226.) Per Plaintiff’s separate statement, Brad Baker worked in 4 the Criminal Investigation Division, with Jason Andersen. In other words, Brad Baker did not 5 work with Plaintiff in the Internal Affairs Division. Because Plaintiff’s separate statement 6 argument for Request for Production No. 22 is essentially the same as the argument for Request 7 for Production No. 21 and the subject employees are similarly situated, Defendant incorporates 8 here its full “Reasons Why Plaintiff’s Motion to Compel Should be Denied” from Request for 9 Production No. 21 above. The motion to compel a response to this request should be denied for 10 the same reasons. 11 PLAINTIFF’S REQUEST NO. 23: 12 The employment records of Dominique Arotzarena, excluding medical and benefits 13 information. 14 DEFENDANT’S RESPONSE TO NO. 23: 15 The City objects to this request on the following grounds: (1) the request calls for 16 information protected by Cal. Penal Code § 832.7; (2) the request calls for information protected by 17 Cal. Evid. Code §§ 1040-43; (3) the request calls for confidential and private information of third 18 parties; (4) the request is not reasonably calculated to lead to the discovery of admissible evidence. 19 PLAINTIFF’S REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED: 20 The disputed issues in this gender and race discrimination case include (1) whether Sgt. 21 Oliver was subjected to discrimination based upon her gender and/or race or retaliation when she 22 was “scapegoated” and removed from her assignment to IAD in August 2016; (2) whether her new 23 supervisor, Acting Lt. Dominique Arotzarena created a hostile work environment for her based on 24 her gender or race; and (3) whether Lt. Arotzarena instigated an unfair investigation which resulted 25 in overly harsh disciplinary action against Sgt. Oliver based on her gender and/or race, or in 26 retaliation for her previous protected activity in connection with the Guap scandal. (See First 27 Amended Complaint, paras. 40-46; First, Second, Third, Fourth and Fifth Causes of Action). 28 Lt. Dominique Arotzarena’s actions, motive and intent are at the heart of the allegations in 11 DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799 1 this case. Sgt. Oliver has alleged that he created a hostile work environment for her by inter alia 2 undermining her supervisory authority and verbally belittling her in front of her colleagues. (First 3 Amended Complaint, para. 46.) Plaintiff is also informed and believes, and has alleged that he 4 played a significant role in instigating disciplinary action against her and Chief Kirkpatrick’s 5 decision to demote her. (Ibid. at paras. 45, 60.) 6 Under the “cat’s paw” theory, Lt. Arotzarena’s improper motives can be imputed to the 7 decisionmaker, in this case, Chief Kirkpatrick. If the decisionmakers worked closely together in 8 formulating personnel decisions, a supervisor’s bias may be imputed to the subordinate and vice- 9 versa. (Dominguez-Curry v. Nevada Transportation Dept., 424 F.3d 1027, at fn. 5, compiling cases, 10 including Wells v. New Cherokee Corp., 58 F.3d 233, 237-238 (6th Cir. 1995) (a supervisor’s animus 11 imputed to the ultimate decisionmaker, because evidence showed that the two “worked closely 12 together and consulted with each other on personnel decisions” and they “themselves testified that 13 they acted jointly”) and Laxton v. Gap Inc., 333 F.3d 572, 584 (5th Cir. 2003) (the relevant inquiry is 14 whether the person who made the discriminatory remark “had influence or leverage over” the formal 15 decisionmaker).) 16 In addition to his employment history, Lt. Arotzarena’s employment records should include 17 any complaints of gender and/or race discrimination or harassment against him, complaints of 18 retaliation against him, and whether he has himself ever alleged any form of retaliation or 19 harassment, and whether he has been counselled, reprimanded or disciplined for prior similar 20 conduct, This information is probative of his motives and the intent underlying his actions toward 21 Sgt. Oliver. When the officer’s conduct is material to the claims, good cause exists for production of 22 his personnel records. (Riske v. Superior Court (2016) 6 Cal.App.5th 647, 659.) 23 Personnel files and other performance-related documents are discoverable under California 24 law to show other allegations of misconduct or discriminatory intent. (Bihun v. AT&T Information 25 Systems (1993) 13 Cal.App.4th 976, 16 Cal.Rptr.2d 787; see also Riske v. Superior Court, 6 26 Cal.App.5th supra at 657-658.) It has long been held that any doubts as to relevance should generally 27 be resolved in favor of permitting discovery. (Pacific Telephone & Telegraph Co. v. Superior Court 28 (1970) 2 Cal.3d 161, 173, 84 Cal.Rptr. 718; accord, Williams v. Superior Court (2017) 3 Cal.5th 12 DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799 1 531, 542.) 2 DEFENDANT’S REASONS WHY PLAINTIFF’S MOTION TO COMPEL SHOULD BE 3 DENIED: 4 Plaintiff’s Request for Production No. 23 seeks “The employment records of Dominique 5 Arotzarena, excluding medical and benefits information,” which are indisputably private and 6 confidential “personnel records” of a peace officer, and items from within those records cannot be 7 disclosed without following the Pitchess procedure set forth in Evidence Code sections 1043 and 8 1046. (Pen. Code § 832.7; Mooc, 26 Cal.4th at 1226.) 9 This request is unique from Requests 21-22, because Plaintiff’s complaint specifically 10 alleges this employee allegedly created a hostile work environment. Regarding the broad scope of 11 this request, Defendant incorporates here its full “Reasons Why Plaintiff’s Motion to Compel 12 Should be Denied” from Request for Production No. 21 above. A request for all “employment 13 records” or “employment history” as it is stated in the separate statement is simply too broad for 14 the reasons outlined above. While Plaintiff’s separate statement cites several cases involving 15 employment discrimination claims, the majority of those cases do not involve peace officer 16 personnel files, and none discuss factors relevant to the Court’s Pitchess analysis here. 17 Additionally, while it appears that Plaintiff’s separate statement attempts to narrow the 18 scope of the request by arguing that Dominique Arotzarena’s “employment records should include . 19 . . whether he has himself ever alleged any form of retaliation or harassment,” that request remains 20 problematic because it fails to identify any specific subject, and ignores the hypothetical privacy 21 rights of any potential third-party employees, who would potentially have their own Pitchess 22 protections. This is an example of the type of “casting about” for information that is precluded by 23 Mooc. (Mooc, 26 Cal.4th at 1226.) 24 Finally, Plaintiff’s separate statement states that records “should include any complaints of 25 gender and/or race discrimination or harassment against him, complaints of retaliation against him . . 26 . and whether he has been counselled, reprimanded or disciplined.” If the Court does find that this 27 is a specific type of record within “employment records” which has been adequately identified 28 under Evidence Code section 1043(b)(2) and that good cause exists to conduct an in camera 13 DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799 1 review, during the in camera review the Court must still exclude facts “sought to be disclosed that 2 are so remote as to make disclosure of little or no practical benefit.” (Evid. Code § 1045(b)(2).2 3 PLAINTIFF’S REQUEST NO. 24: 4 Any and all DOCUMENTS which REFLECT, RELATE or REFER TO YOUR decision to 5 discipline Plaintiff Mildred Oliver, including but not limited to the entire IAD Investigation File No. 6 17-0139. 7 DEFENDANT’S RESPONSE TO NO. 24: 8 The City objects to this request on the following grounds: (1) the request is overbroad; (2) the 9 request calls for information protected by Cal. Penal Code § 832.7; (3) the request calls for 10 information protected by Cal. Evid. Code §§ 1040-43; and (4) the request calls for confidential and 11 private information of third parties. 12 Without waiving these objections, the City’s custodian of records will provide the entire IAD 13 File for IAD investigation No. 17-0139 to the trial court for an in camera review pursuant to a 14 properly noticed Pitchess motion. To the extent there are other documents beyond the IAD files, the 15 City will produce responsive non-privileged documents in its custody and control. 16 PLAINTIFF’S REASONS WHY FURTHER RESPONSES SHOULD BE COMPELLED: 17 Based on the City’s response, this issue is moot. 18 DEFENDANT’S REASONS WHY PLAINTIFF’S MOTION TO COMPEL SHOULD BE 19 DENIED: 20 Defendant agrees with Plaintiff’s further response, but adds that while Defendant will 21 provide the entire IAD file for IAD investigation No. 17-0139 to the trial court for an in camera 22 review, that file contains multiple subject officers, one of which was Plaintiff. Defendant’s position 23 is that the Court should determine before the in camera review of the IAD file whether Plaintiff seeks 24 information regarding all subjects, and whether good cause is established for information related to 25 the other officers before the Court conducts it review. 26 PLAINTIFF’S REQUEST NO. 26: 27 2 Defendant’s February 2, 2022 “Response to Pitchess Motion” cites to an outdated version of Evidence Code section 1045(b)(1), and cases interpreting the same, at page 6, lines 16-22, and the 28 argument and citations should be disregarded. 14 DEFENDANT’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT RG19007799 1 Any and all DOCUMENTS which REFLECT, RELATE or REFER TO YOUR 2 investigation referenced in the e-mail dated November 16, 2015 from Belinda Calvin-Adlao to 3 Spruce Metzger in the Oakland City Administrator’s office, as described in the article “High-Level 4 City Staff Knew of Police Sex Crimes Months Before Oakland Mayor Says She Was Informed” 5 published on February 10, 2017 and attached hereto as Exhibit A, including but not limited to the 6 entire Investigation File. 7 DEFENDANT’S RESPONSE TO NO. 26: 8 The City objects to this request on the following grounds: (1) the term “investigation” is 9 vague and overbroad; (2) the request calls for information protected by Cal. Penal Code § 832.7; (3) 10 the request calls for information protected by Cal. Evid. Code §§ 1040-43; (4) the request calls for 11 information protected by Cal. Code of Civ. Proc. § 129; (5) the request calls for confidential and 12 private information of third parties; (6) the request is not reason