Opinion
No. C-04-4879 MMC.
February 27, 2006
Before the Court is plaintiff Rozella Johnson's ("Johnson") request, pursuant to § 1094.5(e) of the California Code of Civil Procedure, to augment the administrative record filed in connection with her claim for judicial review of the hearing officer's Decision and Award dated August 6, 2004, as amended August 10, 2004 ("Decision"). Defendant Alameda-Contra Costa Transit District ("AC Transit") has filed a response, to which plaintiff has replied. Having considered the papers filed in support of and in opposition to the request, the Court rules as follows.
Plaintiff's request to augment the record was made in her Brief in Support of Issuance of Writ of Mandate, filed November 30, 2005, and in declarations submitted in support thereof.
A. Request to Augment Record
"Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing before respondent, . . . in cases in which the court is authorized by law to exercise its independent judgment on the evidence, the court may admit the evidence at the hearing on the writ without remanding the case." Cal. Code Civ. Proc. § 1094.5(e).
1. Evidence Not Previously Offered
Plaintiff seeks to augment the record with eight exhibits that, according to plaintiff, are relevant and were not reasonably available at the time of the hearing. The Court will address the eight items, in turn.
a. Email dated July 3, 2002
In an email, dated July 3, 2002, sent to Johnson by her former supervisor, Kathleen Kelly ("Kelly"), Kelly made a positive comment about Johnson's work. (See Johnson Decl., filed November 30, 2005, Ex. A.) Johnson asserts that after the hearing, she located the subject email. (See id. ¶ 8.) More specifically, Johnson states that before the hearing she searched her home for work-related documents, but did not find the subject email, nor did she recall it. (See Johnson Decl., filed February 14, 2006, ¶ 3). After the hearing, however, Johnson's husband found the email in a file at their home. (See id. ¶ 3.)
Although California courts "generally" limit the scope of the "could not have been produced" provision in section 1094.5(e) to "truly new evidence of emergent facts," see Fort Mojave Indian Tribe v. California Dep't of Health Services, 38 Cal. App. 4th 1574, 1595 (1995), California courts have allowed augmentation where a petitioner has conducted a reasonable search for documents prior to the hearing but failed to locate a relevant document until after the hearing, see, e.g., Sautter v. Contractors' State License Board, 124 Cal. App. 2d 149, 151-52, 154 (1954) (holding petitioner entitled to augment record with document petitioner's spouse, after administrative hearing, "discovered" in file at home).
In light of those cases and Johnson's declaration attesting to her efforts to locate documents prior to the hearing, the Court will allow Johnson to augment the record with the email. See id.
b. Kelly's deposition testimony re: Kathleen Eichmeier
During her deposition taken in the instant action, Kelly testified that after Johnson was terminated, Kelly offered Johnson's position to a "Causasian" named Kathleen Eichmeier ("Eichmeier"), and that Kelly "believe[s]" that after Kelly left the employ of AC Transit, Eichmeier took the position. (See Trowbridge Decl., filed September 22, 2005, Ex. I at 78:14-79:10.) Johnson argues that the administrative record should be augmented with such testimony to clarify "misleading" testimony Kelly gave at the administrative hearing, (see Johnson Decl., filed November 30, 2005, at 6:5-6), specifically, Kelly's testimony therein that "no one [was] filling [Johnson's] position," (see Trowbridge Decl., filed November 30, 2005, Ex. D at 12).
Assuming, arguendo, an administrative record can be augmented to clarify "misleading" testimony, Johnson fails to show that she could not have asked Kelly at the hearing whether Kelly had offered Johnson's position to anyone. Consequently, Johnson is not entitled to augment the record with subsequently-provided testimony on that subject. See Armondo v. Department of Motor Vehicles, 15 Cal. App. 4th 1174, 1180 (1993) (holding party seeking to augment record must "show that the evidence could not have been produced below had reasonable diligence been exercised"). Further, Kelly's "belief" as to who may have filled Johnson's position after Kelly left AC Transit is, as AC Transit points out, speculative, and therefore not relevant.
Johnson does not dispute that Johnson's former position remained unfilled during the time Kelly was with AC Transit, the only period for which Kelly would have had first-hand knowledge of the matter. Indeed, at her deposition, Kelly, in accordance with her testimony at the administrative hearing, testified that no one had been assigned to fill Johnson's position while Kelly remained at AC Transit. (See Trowbridge Decl., filed September 22, 2005, Ex. I at 78:4-8.)
Accordingly, Johnson fails to show the record should be augmented with Kelly's deposition testimony concerning Eichmeier.
c. Kelly's deposition testimony re: recommending termination
During her deposition taken in the instant action, Kelly testified that she recommended in writing that AC Transit terminate Johnson's employment. (See Trowbridge Decl., filed September 22, 2005, Ex. I at 64:1-3, 101:25-102:3.) Johnson argues the administrative record should be augmented with such testimony to clarify "misleading" testimony Kelly gave at the administrative hearing, (see Johnson Decl., filed November 30, 2005, at 6:5-6), specifically, Kelly's testimony that AC Transit's General Manager made the decision to terminate Johnson, (see Trowbridge Decl., filed November 30, 2005, Ex. D at 9).
Again, assuming, arguendo, an administrative record can be augmented to clarify "misleading" testimony, Johnson fails to show Kelly offered misleading testimony concerning her participation in the termination decision. Rather, Kelly testified at the administrative hearing, in accordance with her deposition testimony, that she signed a written recommendation that AC Transit terminate Johnson's employment, and also that she provided to the General Manager "all" of the information he used to make the decision. (See id.)
Accordingly, Johnson fails to show the record should be augmented with Kelly's deposition testimony concerning her participation in the termination decision.
d. Kelly's deposition testimony re: knowledge of prior complaints
During her deposition taken in the instant action, Kelly testified that she knew Johnson had filed a discrimination complaint with the Department of Fair Employment and Housing ("DFEH"), (see Trowbridge Decl., filed September 22, 2005, Ex. I at 106:20-107:2), and had submitted to AC Transit, in September 2003, an internal complaint, (see id. Ex. I at 100:8-22). Johnson argues that the administrative record should be augmented with such testimony to counter "dishonest" testimony given at the administrative hearing. (See Trowbridge Decl., filed November 30, 2005, ¶ 14.)
Other documents filed herein establish that Johnson's DEFH complaint was filed in October 2003. (See, e.g., Hoyt Decl., filed September 9, 2005, Ex. L at 41.)
Assuming, arguendo, an administrative record can be augmented by evidence showing that prior testimony was false, Johnson fails to show any falsehood. First, Kelly testified at the administrative hearing that she knew about Johnson's DFEH complaint. (See id. Ex. D at 12.) Second, Johnson fails to point to anything in the administrative record indicating that Kelly was even asked about Johnson's September 2003 internal complaint, much less that Kelly testified in a manner differing from that offered at her deposition.
Accordingly, Johnson fails to show the record should be augmented with Kelly's deposition testimony concerning her knowledge of Johnson's complaints.
e. Richard C. Fernandez's deposition testimony re: termination decision
During his deposition taken in the instant action, AC Transit General Manager Richard C. Fernandez ("Fernandez") testified as to what information he used to make his decision to terminate Johnson. (See, e.g., Trowbridge Decl., filed September 22, 2005, Ex. J at 59:5-60:12.) Johnson states she did not call Fernandez as a witness at the hearing because the rules governing the hearing did not provide her with a mechanism to compel the attendance of a witness. Johnson does not assert, however, that she made any effort to obtain Fernandez's voluntary attendance. She does not assert, for example, that she requested that AC Transit produce Fernandez and that AC Transit refused, circumstances arguably implicating the alleged lack of a means to compel testimony from an unwilling witness. In short, Johnson has not shown that, in the exercise of reasonable diligence, she was unable to present Fernandez's testimony at the hearing.
Additionally, Fernandez's deposition testimony, that he did not personally conduct an investigation and that he based his decision to terminate Johnson on information provided to him by Kelly, is cumulative of evidence presented at the hearing. Specifically, as noted above, Kelly testified at the hearing that she provided Fernandez with "all" the information Fernandez used to make his decision to terminate Johnson. (See Trowbridge Decl., filed November 30, 2005, Ex. D at 9).
Accordingly, Johnson fails to show the record should be augmented with Fernandez's deposition testimony concerning how he made the termination decision.
f. Fernandez's deposition testimony re: knowledge of prior complaints
During his deposition, Fernandez testified about his knowledge of Johnson's prior complaints. (See, e.g., id. Ex. J at 27:18-28:2.) As noted, Johnson did not call Fernandez as a witness at the administrative hearing, and has failed to show that, in the exercise of reasonable diligence, she could not have presented his testimony therein.
Accordingly, Johnson fails to show the record should be augmented with Fernandez's deposition testimony concerning his knowledge of Johnson's complaints.
g. Candy Williams-Scarlett's deposition testimony re: Kelly
During her deposition taken in the instant action, Candy Williams-Scarlett ("Williams-Scarlett"), a former employee of AC Transit, testified about her interactions with Kelly and her perception of bias on Kelly's part. (See, e.g., id. Ex. D at 24:18-24, 26:3-12.) Johnson states that although she asked Williams-Scarlett to testify at the hearing, Williams-Scarlett refused. (See Johnson Decl., filed February 14, 2006, ¶ 4.) In light of the lack of a procedural vehicle to compel an unwilling witness to testify at the administrative hearing, the Court finds Johnson acted diligently in attempting to secure Williams-Scarlett's testimony.
Accordingly, the Court will allow Johnson to augment the record with Williams-Scarlett's deposition testimony.
The specific excerpts Johnson offers from the Williams-Scarlett deposition are attached to the Trowbridge Declaration, filed September 22, 2005, as Exhibit D. To date, no objection to such evidence has been raised on grounds other than lack of diligence. Consequently, the Court's order augmenting the record with such evidence does not address the probative value thereof.
h. Report, dated June 1, 2005, by Helmut Relinger, Ph.D.
In a report dated June 1, 2005, Helmut Relinger, Ph.D., ("Dr. Relinger") opines that Johnson "continues to suffer psychological disturbance characterized by depression and anxiety." (See Trowbridge Decl., filed September 22, 2005, Ex. K, ninth sequential page.) According to Dr. Relinger, he formed such opinion after interviewing Johnson on two occasions in May 2005. (See id. Ex. K, eighth sequential page.)
Johnson fails to explain how her mental status in May 2005 is relevant to the issue of whether, in January 2004, AC Transit had sufficient cause to terminate Johnson's employment, and, consequently, has not shown Dr. Relinger's report is relevant to the matters before the Hearing Officer.
Accordingly, Johnson fails to show the record should be augmented with Dr. Relinger's June 1, 2005 report.
2. Excluded Evidence
The hearing officer allowed Johnson to offer a declaration signed by former AC Transit employee Francois Njike ("Njike"), who attested therein about his experiences working with Kelly and about interactions between Johnson and Kelly he had witnessed. (See id. Ex. C.) The hearing officer excluded, however, evidence of a verified civil complaint Njike had filed against AC Transit, in which Njike set forth in more detail some of his experiences working with Kelly and in which he characterizes Kelly's conduct as discriminatory in nature. The hearing officer also denied Johnson's request to call Njike as a witness at the administrative hearing.
Johnson seeks to augment the administrative record with the civil complaint and, in lieu of live testimony by Njike, excerpts from Njike's deposition testimony given in the instant action, which testimony, Johnson asserts, Njike would have given had he testified at the administrative hearing.
The specific excerpts Johnson offers from the Njike deposition are attached to the Trowbridge Declaration, filed January 25, 2006, as Exhibit A. AC Transit does not contend that Njike's deposition testimony is an inadequate substitute for testimony he would have given at the administrative hearing.
AC Transit argues the evidence is irrelevant to the extent Njike testifies or attests to employment-related actions Kelly took with respect to Njike. Evidence of other employee's experiences with the defendant has been held to be relevant, however, where, as here, such evidence is offered on the issue of whether such defendant was motivated by a discriminatory animus.See Heyne v. Caruso, 69 F. 3d 1475, 1479-80 (9th Cir. 1995) (holding, in connection with wrongful termination claim, evidence that defendant sexually harassed other individuals was "both relevant and admissible" as to "question of [defendant's] motive for discharging [plaintiff]"). To the extent Njike testifies or attests therein to interactions he observed between Kelly and Johnson, AC Transit does not contend the evidence is irrelevant, but, rather that such evidence is cumulative because it is "the same" as that set forth in Njike's declaration. (See Def.s' Response, filed February 8, 2006, at 7:15-17.) Contrary to AC Transit's characterization, however, the additional evidence provides greater detail with respect to Njike's observations.
AC Transit also argues that Njike's civil complaint is not probative because Njike did not name Kelly as a defendant in his civil action. Such procedural fact, however, is immaterial; the question is whether the verified statements in the complaint have any relevance to the issues before the hearing officer. AC Transit further argues that interactions between Njike and Kelly are too remote in time to be relevant as to the events at issue between Johnson and Kelly. At least some of the interactions between Njike and Kelly, however, appear to have occurred at or around the same time as some of the interactions between Johnson and Kelly on which Johnson relies to show Kelly's discriminatory animus toward Johnson. (See Trowbridge Decl., filed September 22, 2005, Ex. B ¶ 9; Trowbridge Decl., filed November 30, 2005, Ex. D at 22.) Again, the Court makes no determination as to the probative value of such evidence.
Accordingly, the Court will allow Johnson to augment the record with Njike's civil complaint and Njike's deposition testimony.
B. Briefing Schedule on Merits of Petition
The Court sets the following briefing schedule on the issue of whether the Court, in applying its independent judgment, should affirm or set aside the Decision.
Johnson shall file her opening brief, not to exceed 25 pages, no later than March 24, 2006
AC Transit shall file its opposition brief, not to exceed 25 pages, no later than April 14, 2006.
Johnson may file a reply brief, not to exceed 15 pages, no later than April 28, 2006, at which time the matter shall stand submitted.
All factual arguments must be supported by specific page citations to documents in the administrative record, as augmented herein, and no party may file any additional declarations or other evidence.
C. Trial Date
For the reasons stated at the hearing conducted October 14, 2005, the Court will resolve Johnson's petition for judicial review of the Decision before the Court will address Johnson's claims for damages. See, e.g., Johnson v. City of Loma Linda, 24 Cal. 4th 61, 65-66, 71 (2000) (holding state law claims for discriminatory termination barred by administrative finding plaintiff not terminated for discriminatory reasons, unless plaintiff succeeds in setting aside administrative finding in judicial proceeding).
Accordingly, the April 24, 2006 trial date and related pre-trial dates will be vacated, and will be reset after the Court has ruled on the merits of plaintiff's petition to set aside the Decision.
CONCLUSION
For the reasons set forth above, plaintiff's request to augment the administrative record is GRANTED in part and DENIED in part, as follows.
1. Plaintiff's request to augment is GRANTED with respect to the July 3, 2002 email, Williams-Scarlett's deposition testimony, Njike's civil complaint, and Njike's deposition testimony, and the administrative record is hereby AUGMENTED with such evidence.
2. In all other respects, plaintiff's request to augment is DENIED.
3. The parties shall brief the merits of plaintiff's petition to set aside the Decision, as set forth above.
4. The April 24, 2006 trial date and related pre-trial dates are hereby VACATED.
IT IS SO ORDERED.