Peoples v. County of Contra Costa et al

Filing 166

ORDER permitting 3rd party discovery; Signed by Judge Marilyn Hall Patel on 9/16/2008. (awb, COURT-STAFF) (Filed on 9/17/2008)

BEIJING BRUSSELS CENTURY CITY

Two Embarcadero Center, 28th Floor San Francisco, California 94111-3823
TELEPHONE FACSIMILE

NEW YORK SHANGHAI SILICON VALLEY SINGAPORE TOKYO WASHINGTON, D.C.

HONG KONG LONDON LOS ANGELES NEWPORT BEACH

[phone] [phone]

www.omm.com

September 12, 2008 VIA E-FILING Hon. Marilyn Hall Patel United States District Court Northern District of California 450 Golden Gate Avenue San Francisco, California 94102 Re: Your Honor:

OUR FILE NUMBER

0170446-1808
WRITER'S DIRECT DIAL

[phone]
WRITER'S E-MAIL ADDRESS

[e-mail]

Peoples v. Contra Costa County et al., C-07-00051-MHP

As instructed by the Court, attached please find a proposed order authorizing Defendants to issue certain third-party subpoenas as discussed at the telephonic discovery conference on September 11, 2008. Very truly yours, /s/ Robin M. Wall Robin M. Wall for O'MELVENY & MYERS LLP Attachments cc: Pamela Y. Price, Esq.

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RANDALL W. EDWARDS (S.B. #179053) [e-mail] ROBIN M. WALL (S.B. #235690) [e-mail] DAMALI A. TAYLOR (admitted pro hac vice) O'MELVENY & MYERS LLP Two Embarcadero Center 28th Floor San Francisco, CA 94111-3305 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants COUNTY OF CONTRA COSTA, GUS S. KRAMER and LORI KOCH UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

BERNICE PEOPLES, Plaintiff, v. COUNTY OF CONTRA COSTA, GUS S. KRAMER in his individual capacity, LORI KOCH, in her individual capacity and DOES 1 through 15 inclusive, Defendants.

Case No. C-07-0051 MHP [PROPOSED] ORDER PERMITTING THIRD-PARTY DISCOVERY

[PROPOSED] ORDER PERMITTING THIRD PARTY DISCOVERY, C-07-0051 MHP

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WHEREAS trial in this matter is set to begin on October 7, 2008; and WHEREAS Defendants seek certain third-party discovery related to Plaintiff's Revised Second Amended Complaint as indicated at the telephonic discovery conference on September 11, 2008; IT IS HEREBY ORDERED THAT Defendants are authorized to issue and serve the following third-party discovery in addition to those depositions ordered during the discovery conference: (1) A subpoena commanding production and inspection and copying of

documents and appearance by the custodian of record for deposition addressed to American Federation of State County and Municipal Employees, Local 512 in the form attached hereto as Exhibit A. (2) A subpoena commanding production and inspection and copying of

documents and appearance by the custodian of record for deposition addressed to American Federation of State County and Municipal Employees, Local 2700 in the form attached hereto as Exhibit B. IT IS FURTHER ORDERED THAT in order to avoid delay in or the continuance of the trial currently scheduled to commence on October 7, 2008, Defendants are authorized to set a return date of September 29, 2008 for the subpoenas.

Dated: 9/16/2008

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EXHIBIT A

EXHIBIT A DEFINITIONS AND INSTRUCTIONS Unless the context indicates otherwise, the following words and phrases have the meanings given: 1. "ACTION" means the lawsuit that Bernice Peoples filed against Contra Costa

County, Gus S. Kramer and Lori Koch in the United States District Court, Northern District of California, Case No. C-07-00051-MHP. 2. "REVISED SECOND AMENDED COMPLAINT" means the Revised Second

Amended Complaint deemed filed in the ACTION on or about May 27, 2008, a copy of which is attached hereto at Tab 1. 3. "DOCUMENTS" is used in the broadest possible sense and shall mean any

"writing," as that term is defined in the Federal Rules of Evidence Rule 1001(1), of any nature, whether on paper, magnetic, electronic, or other information storage means, and all non-identical copies, no matter how produced or maintained in YOUR actual or constructive possession, custody, or control. Without limiting the foregoing, the term "DOCUMENTS" includes any copy that differs in any respect from the original or other versions of the DOCUMENTS, including but not limited to copies containing notations, insertions, corrections, marginal notes, or any other variations. 4. "YOU" or "YOUR" means American Federation of State County and Municipal

Employees, Local 512, and all of YOUR employees, agents, representatives and attorneys. 5. 6. "PLAINTIFF" means Bernice Peoples, her agents, representatives, and attorneys. In the event any DOCUMENT is withheld on a claim of attorney/client privilege

or work product immunity or any other claimed privilege, provide a privilege log that describes the nature and basis for YOUR claim and the subject matter of the DOCUMENT withheld, in a manner sufficient to disclose facts upon which YOU rely in asserting YOUR claim, and to permit the grounds and reasons for withholding the DOCUMENT to be identified. Such description should, at a minimum, include:

a. b. c.

the date of the DOCUMENT; an identification of each and every author of the DOCUMENT; an identification of each and every person who received the DOCUMENT;

d.

an identification of each and every person from whom the DOCUMENT was received;

e. f.

a description of the subject of the DOCUMENT; and sufficient further information concerning the DOCUMENT and circumstances thereof necessary to explain the claim of privilege or immunity and permit the adjudication of the propriety of that claim.

7.

The words "and" and "or" shall be construed in the conjunctive or disjunctive,

whichever makes the request more inclusive in context. 8. Any pronouns shall be construed to refer to the masculine, feminine, or neuter

gender, as in each case is most appropriate. 9. 10. As used herein, "all," "any," "each," or "every" means "all, each and every." The use of the singular shall be deemed to include the plural and the use of the

plural shall be deemed to include the singular wherever necessary to make the request more inclusive in context. REQUESTS FOR PRODUCTION REQUEST FOR PRODUCTION NO. 1: All DOCUMENTS relating to the ACTION, the allegations in the ACTION, or the REVISED SECOND AMENDED COMPLAINT, including but not limited to those DOCUMENTS in Mr. Jim Hicks's files. REQUEST FOR PRODUCTION NO. 2: All DOCUMENTS relating to PLAINTIFF'S August 2000 complaint alleging sexual harassment and/or discrimination against Gus S. Kramer and/or the County Assessor's Office,

including but not limited to those DOCUMENTS in Mr. Jim Hicks's files. REQUEST FOR PRODUCTION NO. 3: All DOCUMENTS constituting, reflecting, or relating to communications between YOU and anyone else relating to the ACTION, the allegations in the ACTION or the REVISED SECOND AMENDED COMPLAINT, including but not limited to e-mails. REQUEST FOR PRODUCTION NO. 4: All DOCUMENTS relating to any allegation, including but not limited to any formal or informal complaint, that Gus S. Kramer, Lori Koch, the County of Contra Costa (the "County"), the County Assessor's Office, or any agent or employee of the County or the Assessor's Office has engaged in race and/or gender discrimination or harassment against PLAINTIFF or anyone else in the Assessor's Office. REQUEST FOR PRODUCTION NO. 5: All DOCUMENTS relating to any allegation, including but not limited to any formal or informal complaint, that Gus S. Kramer, Lori Koch, the County of Contra Costa (the "County"), the County Assessor's Office, or any agent or employee of the County or the Assessor's Office has engaged in retaliation against PLAINTIFF or anyone else in the Assessor's Office.

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1 PAMELA Y. PRICE, ESQ. (STATE BAR NO. 107713) PRICE AND ASSOCIATES 2 A Professional Law Corporation 3 1611 Telegraph Avenue, Ste. 1450 Oakland, CA 94612 4 Telephone: [phone] Facsimile: [phone] 5 6 Attorneys for Plaintiff BERNICE PEOPLES 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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UNITED STATES DISTRICT COURT NORTH ERN DISTRICT OF CALIFORNIA

BERNICE PEOPLES,

) ) Plaintiff, ) ) vs. ) ) COUNTY OF CONTRA COSTA, GUS S. ) KRAMER in his individual capacity, LORI ) KOCH in her individual capacity, and DOES 1 ) through 15 inclusive, ) ) Defendants. ) )

NO. C07-0051 MHP [REVISED] SECOND AMENDED COMPLAINT FOR EMPLOYMENT DISCRIMINATION (JURY TRIAL DEMANDED)

Plaintiff BERNICE PEOPLES, by and through her attorneys, alleges as follows: JURISDICTION AND VENUE 1. This action arises under 42 U.S.C. Section 1981 and 42 U.S.C. Section

1983. Jurisdiction of the Court over Plaintiff's federal claims is invoked pursuant to the provisions of 28 U.S.C. Sections 1331 and 1343. The alleged unlawful acts and practices

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occurred in the City of Martinez, County of Contra Costa, California, which is within this judicial district. 2. Jurisdiction over Plaintiff's claims under state law is invoked pursuant to

the provisions of 28 U.S.C. Section 1367. The claims which arise under state law are so related to claims within the original jurisdiction of this Court that they form a part of the same case and controversy under Article III of the United States Constitution. PARTIES 3. Plaintiff BERNICE PEOPLES is now, and at all times mentioned herein

was, a citizen of the United States and a resident of the State of California. MS. PEOPLES is an African-American woman who has been employed in Defendant CONTRA COSTA COUNTY's Assessor's Office since July 1, 1985. 4. Defendant CONTRA COSTA COUNTY (hereinafter referred to as

("COUNTY") is now and at all times mentioned herein was, a public entity organized and existing under the laws of the State of California. 5. Defendant GUS S. KRAMER (hereinafter "KRAMER") is an employee

and agent of Defendant COUNTY. Defendant KRAMER serves as the COUNTY Assessor. He acted within the course and scope of his employment and agency at all times. Plaintiff sues Defe nda nt KRAMER in his individual capacity. 6. Defendant LORI KOCH (hereinafter "KOCH") is an employee and agent

of Defendant COUNTY. Defendant KOCH serves as the Assistant County Assessor. She acted within the course and scope of her employment and agency at all times. Plaintiff sues Defendant KOC H in her individual capacity. 7. MS. PEOPLES is ignorant of the true names and capacities of the

Defendants sued herein as Does 1 through 15, inclusive, and therefore sues these Defendants by such fictitious names. MS. PEOPLES is informed and believes and thereon alleges that each of the fictitiously-named Defendants is responsible in some manner for the occurrences alleged herein, and that MS. PEOPLES' injuries were proximately caused by their conduct. MS.

27 PEOPLES will amend this Complaint to allege their true names and capacities when ascertained. 28
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8.

At all times herein mentioned, each of the Defendants was the agent and

employee of each of the remaining Defendants, and in doing the things herein alleged, was acting within the course and scope of said agency and employment. MS. PEOPLES is informed and believes and thereon alleges that each and every wrongful act by Defendants complained of herein was done with the approval, express or implied, of each of the other Defendants, and each Defendant has ratified and approved the acts and omissions of each of the others. FACTUAL ALLEGATIONS 9. Since 1975, Defendant COUNTY has been subject to a court-sanctioned

Consent Decree requiring it to take affirmative action to ensure equal employment opportunity for women and minorities in hiring and promotion. Since at least 1985, the job classifications of Associate Appraiser and Supervising Appraiser have been "imbalanced" within the meaning of the Consent Decree and therefore, subject to specific timetables and goals to increase the number of women and minorities hired into that position. Since at least 1994, the Assessor's Office has issued a report detailing its alleged compliance with the Croskrey Consent Decree, including its stated goal to promote more women and minorities into higher positions. 10. MS. PEOPLES began her employment with Defendant COUNTY as a

Junior Appraiser in July 1985. Within the next year, she was flexed into the position of Assistant Appraiser. She has worked in this same position for more than twenty-one (21) years. MS. PEOPLES has a Bachelor of Science degree in Business Administration with a major in Real Estate and Urban Land Economics. 11. Since being hired in 1985, MS. PEOPLES has been one of only two

Afri can- Ame ric ans hired as Appraisers into the Assessor's office. Ms. PEOPLES has always been the only African-American female employed as an Appraiser in the Assessor's office. Out of a total of forty-four (44) Appraisers in the Residential Division, only two (2) are AfricanAmerican. There has never been an African-American Residential Supervising Appraiser in the history of the Assessor's Office. There has never been an African-American employed as an Appraiser in the Commercial & Industrial Division of the Assessor's Office.

27 12. 28
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In August 2000, MS. PEOPLES lodged a complaint of gender

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discrimination based upon sexual harassment against Defendant KRAMER. MS. PEOPLES was offended by his invitation to join him at a local motel and his suggestions that she was "an expensive date." Following a perfunctory investigation, Defendant COUNTY cleared Defendant KRAMER of any wrongdoing. 13. Since she filed her sexual harassment complaint in 2000, MS. PEOPLES

has been consistently passed over for promotion. The first promotional opportunity for which Ms. Peoples was eligible occurred in January 2005, followed by successive promotional opportunities in March 2005, May 2005 and January 2006. 14. During the periods immediately preceding her applications for promotion,

in August 2004 and again in September 2005, Ms. PEOPLES received performance evaluations in which she received ratings of "exceeds job requirements" in thirteen (13) out of fifteen (15) rating categories, and ratings of "exceptional job performance" in the remaining two (2) categories. Throughout her tenure in the Assessor's office, MS. PEOPLES has been evaluated regularly. She has never received a negative performance evaluation. She has never been disciplined and has gotten along with her co-workers and with the public she serves. 15. Throughout her tenure, MS. PEOPLES has watched other women in her

department be promoted. The average length of time for similarly-situated Caucasian women in the Assessor's Office to be promoted has been five (5) years. Every other female Appraiser hired in the Residential Division has been promoted. MS. PEOPLES has more education, experience and tenure than 95% of the Residential Appraisers who have been promoted in the Assessor's Office. 16. In March and May 2005 and again in January 2006, MS. PEOPLES was

passed over for promotion several times to the positions of Associate Appraiser and Supervising Appraiser. In each case, less qualified non-African-American female applicants were selected over her. All of the candidates chosen had less seniority than she. 17. On January 5, 2006, Defendant COUNTY promoted a less qualified

Caucasian male to Associate Appraiser over MS. PEOPLES. MS. PEOPLES is informed and 27 believes that one of the persons selected for the Associate Appraiser position in January 2006 28
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was ranked lower than she by the interview panel. MS. PEOPLES also trained one of the successful candidates for his position. 18. Defendants KRAMER, KOCH and COUNTY's failure to promote MS.

PEOPLES is consistent with a pattern and practice of discrimination and promotion-bias against women and minority employees within the COUNTY. MS. PEOPLES was qualified for promotion but was denied promotion because of her race and gender, and in retaliation for her pro tec ted activity. 19. On November 6, 2006, MS. PEOPLES exhausted her administrative

remedies under the California Fair Employment and Housing Act ("FEHA") by submitting a charge to the California Department of Fair Employment and Housing ("DFEH"). On January 11, 2007, the DFEH issued MS. PEOPLES a Notice of Right to Sue. DAMAGES 20. As a proximate result of the Defendants' actions as alleged herein, MS.

PEOPLES was humiliated, hurt and injured in her health, strength and activity, and suffered and continues to suffer loss of reputation, goodwill and standing in the community, scorn and hum ili ati on, embarrassment, hurt feelings, mental anguish and suffering, depression, anxiety, loss of enjoyment of life, and a general loss of self-esteem and well-being, all to MS. PEOPLES' damage in an amount to be shown according to proof. 21. As a further proximate result of the acts of the Defendants and each of

them as alleged herein, MS. PEOPLES has also suffered a significant loss of income and employment benefits in an amount to be shown according to proof in excess of $25,000.00. 22. Defendants KRAMER and KOCH's acts were willful, wanton, malicious

and oppressive in that they knew or should have known that their conduct was unreasonable and illegal. Furthermore, KRAMER and KOCH's acts were carried out in wilful and conscious disregard of MS. PEOPLES' constitutional protected federal rights and well-being, entitling MS. PEOPLES to punitive damages in an amount appropriate to punish or make an example of them. ///

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FIRST CAUSE OF ACTION VIOLATION OF 42 U.S.C. SECTION 1981 RACIAL DISCRIMINATION (ALL DEFENDANTS) 23. MS. PEOPLES refers to and hereby incorporates by reference Paragraphs

1 through 22 as if fully set forth herein. 24. In doing each and all of the acts alleged herein, Defendants KRAMER and

KOCH intentionally, wilfully and without justification, did deprive MS. PEOPLES on the ground of her rights, privileges and immunities secured to her by the Constitution and laws of the United States, particularly her right to be free from intentional discrimination based on race, as provided by 42 U.S.C. Section 1981. WHEREFORE, Plaintiff prays for relief as hereinafter set forth. SECOND CAUSE OF ACTION VIOLATION OF 42 U.S.C. SECTION 1983 GENDER PLUS RACIAL DISCRIMINATION (DEFENDANTS KRAMER AND KOCH) 25. MS. PEOPLES refers to and hereby incorporates by reference Paragraphs

1 through 24 inclusive, as though fully set forth at length herein. 26. In doing each and all of the acts alleged herein, Defendants KRAMER and

KOCH were acting under color of state law. 27. protected groups. 28. By their conduct herein alleged, Defendants KRAMER and KOCH As an African-American woman, MS. PEOPLES is a member of two (2)

intentionally, wilfully and without justification, did deprive MS. PEOPLES of her rights, privileges and immunities secured her by the Constitution and the laws of the United States, including but not limited to her right to due process and equal protection as provided by the Fourteenth Amendment, in violation of 42 U.S.C. Section 1983. WHEREFORE, Plaintiff prays for relief as hereinafter set forth. /// ///

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THIRD CAUSE OF ACTION RETALIATION (DEFENDANT COUNTY) MS. PEOPLES refers to and hereby incorporates by reference Paragraphs

1 through 28, inclusive, as though fully set forth at length herein. 30. This action is brought pursuant to FEHA, to obtain relief for MS.

PEO PLES suffered in employment because of retaliation based upon her protected activity. 31. In August 2000, MS. PEOPLES lodged a complaint of sexual harassment

and racial discrimination against Defendant Kramer. As a result of her protected activity, Defendant Kramer vowed never to promote her as long as he was the Assessor. Despite her twenty-one years of experience as an Appraiser and her qualifications and commitment, Ms. Peoples was passed over for promotion eleven (11) times in 2005 and 2006. WHEREFORE, Plaintiff prays for relief as hereinafter set forth. FOURTH CAUSE OF ACTION VIOLATION OF FEHA GENDER PLUS RACE DISCRIMINATION (AGAINST DEFENDANT COUNTY) 32. MS. PEOPLES realleges and incorporates by reference Paragraphs 1

through 31, inclusive, as if fully set forth herein. 33. This action is brought pursuant to FEHA, to obtain relief for MS.

PEOPLES suffered in employment because of her race and gender. 34. As an African-American woman, MS. PEOPLES is a member of two (2)

protected groups under FEHA. 35. Defendants' discriminatory actions against MS. PEOPLES, including but

not limited to their failure to promote her, have caused and will continue to cause MS. PEOPLES los s of seniority, and losses of all other benefits accruing to said employment opportunity. FIFTH CAUSE OF ACTION RETALIATION (DEFENDANT KRAMER) 36. Ms. PEOPLES refers to and hereby incorporates by reference Paragraphs 1

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through 35, inclusive, as though fully set forth at length herein. 37. Defendant KRAMER was aware that Ms. PEOPLES engaged in protected

activity, including but not limited to filing a complaint of sexual harassment against him. As a result of Ms. PEOPLES' protected activity, Defendant KRAMER subjected her to adverse treatment, including but not limited to refusing to promote her to Associate Appraiser or Supervising Appraiser in 2005 and 2006. 38. By his conduct herein alleged, Defendant KRAMER intentionally,

wilfully and without justification, did deprive Ms. PEOPLES of her rights, privileges and immunities secured her by the Constitution and the laws of the United States, including but not limited to her right to due process and equal protection as provided by the Fourteenth Amendment, in violation of 42 U.S.C. Section 1983. 39. In doing each and all of the acts alleged herein, Defendant KRAMER were

acting under color of state law. WHEREFORE, Plaintiff prays for judgment against Defendants and each of them as follows: 1. Compensatory and special damages, including but not limited to, lost

wages and benefits, and damages for mental and emotional distress, in excess of $150,000 to be determined at the time of trial; 2. 3. Costs of suit incurred herein, including reasonable attorneys' fees; Punitive and exemplary damages in an amount appropriate to punish and

make an example of the individual Defendants to be determined at the time of trial; 4. Injunctive relief against Defendant COUNTY OF CONTRA COSTA and

its agents and employees, enjoining them from denying, or aiding or inciting the denial of, the civil rights of any African-American employees on the basis of race or gender in its worksites in the State of California, and compelling the COUNTY to take affirmative steps to ensure a fair work environment and promotional opportunities for African-American employees; and 5. /// Such other and further relief as the Court deems just and proper.

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Dated: May 6, 2008

PRICE AND ASSOCIATES /s/ Pamela Y. Price

PAMELA Y. PRICE, Attorneys for Plaintiff BERNICE PEOPLES

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EXHIBIT B

EXHIBIT A DEFINITIONS AND INSTRUCTIONS Unless the context indicates otherwise, the following words and phrases have the meanings given: 1. "ACTION" means the lawsuit that Bernice Peoples filed against Contra Costa

County, Gus S. Kramer and Lori Koch in the United States District Court, Northern District of California, Case No. C-07-00051-MHP. 2. "REVISED SECOND AMENDED COMPLAINT" means the Revised Second

Amended Complaint deemed filed in the ACTION on or about May 27, 2008, a copy of which is attached hereto at Tab 1. 3. "DOCUMENTS" is used in the broadest possible sense and shall mean any

"writing," as that term is defined in the Federal Rules of Evidence Rule 1001(1), of any nature, whether on paper, magnetic, electronic, or other information storage means, and all non-identical copies, no matter how produced or maintained in YOUR actual or constructive possession, custody, or control. Without limiting the foregoing, the term "DOCUMENTS" includes any copy that differs in any respect from the original or other versions of the DOCUMENTS, including but not limited to copies containing notations, insertions, corrections, marginal notes, or any other variations. 4. "YOU" or "YOUR" means American Federation of State County and Municipal

Employees, Local 2700, and all of YOUR employees, agents, representatives and attorneys. 5. 6. "PLAINTIFF" means Bernice Peoples, her agents, representatives, and attorneys. In the event any DOCUMENT is withheld on a claim of attorney/client privilege

or work product immunity or any other claimed privilege, provide a privilege log that describes the nature and basis for YOUR claim and the subject matter of the DOCUMENT withheld, in a manner sufficient to disclose facts upon which YOU rely in asserting YOUR claim, and to permit the grounds and reasons for withholding the DOCUMENT to be identified. Such description should, at a minimum, include:

a. b. c.

the date of the DOCUMENT; an identification of each and every author of the DOCUMENT; an identification of each and every person who received the DOCUMENT;

d.

an identification of each and every person from whom the DOCUMENT was received;

e. f.

a description of the subject of the DOCUMENT; and sufficient further information concerning the DOCUMENT and circumstances thereof necessary to explain the claim of privilege or immunity and permit the adjudication of the propriety of that claim.

7.

The words "and" and "or" shall be construed in the conjunctive or disjunctive,

whichever makes the request more inclusive in context. 8. Any pronouns shall be construed to refer to the masculine, feminine, or neuter

gender, as in each case is most appropriate. 9. 10. As used herein, "all," "any," "each," or "every" means "all, each and every." The use of the singular shall be deemed to include the plural and the use of the

plural shall be deemed to include the singular wherever necessary to make the request more inclusive in context. REQUESTS FOR PRODUCTION REQUEST FOR PRODUCTION NO. 1: All DOCUMENTS relating to the ACTION, the allegations in the ACTION, or the REVISED SECOND AMENDED COMPLAINT, including but not limited to those DOCUMENTS in Mr. Jim Hicks's files. REQUEST FOR PRODUCTION NO. 2: All DOCUMENTS relating to PLAINTIFF'S August 2000 complaint alleging sexual harassment and/or discrimination against Gus S. Kramer and/or the County Assessor's Office,

including but not limited to those DOCUMENTS in Mr. Jim Hicks's files. REQUEST FOR PRODUCTION NO. 3: All DOCUMENTS constituting, reflecting, or relating to communications between YOU and anyone else relating to the ACTION, the allegations in the ACTION or the REVISED SECOND AMENDED COMPLAINT, including but not limited to e-mails. REQUEST FOR PRODUCTION NO. 4: All DOCUMENTS relating to any allegation, including but not limited to any formal or informal complaint, that Gus S. Kramer, Lori Koch, the County of Contra Costa (the "County"), the County Assessor's Office, or any agent or employee of the County or the Assessor's Office has engaged in race and/or gender discrimination or harassment against PLAINTIFF or anyone else in the Assessor's Office. REQUEST FOR PRODUCTION NO. 5: All DOCUMENTS relating to any allegation, including but not limited to any formal or informal complaint, that Gus S. Kramer, Lori Koch, the County of Contra Costa (the "County"), the County Assessor's Office, or any agent or employee of the County or the Assessor's Office has engaged in retaliation against PLAINTIFF or anyone else in the Assessor's Office.

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1 PAMELA Y. PRICE, ESQ. (STATE BAR NO. 107713) PRICE AND ASSOCIATES 2 A Professional Law Corporation 3 1611 Telegraph Avenue, Ste. 1450 Oakland, CA 94612 4 Telephone: [phone] Facsimile: [phone] 5 6 Attorneys for Plaintiff BERNICE PEOPLES 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1159P236PYP

UNITED STATES DISTRICT COURT NORTH ERN DISTRICT OF CALIFORNIA

BERNICE PEOPLES,

) ) Plaintiff, ) ) vs. ) ) COUNTY OF CONTRA COSTA, GUS S. ) KRAMER in his individual capacity, LORI ) KOCH in her individual capacity, and DOES 1 ) through 15 inclusive, ) ) Defendants. ) )

NO. C07-0051 MHP [REVISED] SECOND AMENDED COMPLAINT FOR EMPLOYMENT DISCRIMINATION (JURY TRIAL DEMANDED)

Plaintiff BERNICE PEOPLES, by and through her attorneys, alleges as follows: JURISDICTION AND VENUE 1. This action arises under 42 U.S.C. Section 1981 and 42 U.S.C. Section

1983. Jurisdiction of the Court over Plaintiff's federal claims is invoked pursuant to the provisions of 28 U.S.C. Sections 1331 and 1343. The alleged unlawful acts and practices

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occurred in the City of Martinez, County of Contra Costa, California, which is within this judicial district. 2. Jurisdiction over Plaintiff's claims under state law is invoked pursuant to

the provisions of 28 U.S.C. Section 1367. The claims which arise under state law are so related to claims within the original jurisdiction of this Court that they form a part of the same case and controversy under Article III of the United States Constitution. PARTIES 3. Plaintiff BERNICE PEOPLES is now, and at all times mentioned herein

was, a citizen of the United States and a resident of the State of California. MS. PEOPLES is an African-American woman who has been employed in Defendant CONTRA COSTA COUNTY's Assessor's Office since July 1, 1985. 4. Defendant CONTRA COSTA COUNTY (hereinafter referred to as

("COUNTY") is now and at all times mentioned herein was, a public entity organized and existing under the laws of the State of California. 5. Defendant GUS S. KRAMER (hereinafter "KRAMER") is an employee

and agent of Defendant COUNTY. Defendant KRAMER serves as the COUNTY Assessor. He acted within the course and scope of his employment and agency at all times. Plaintiff sues Defe nda nt KRAMER in his individual capacity. 6. Defendant LORI KOCH (hereinafter "KOCH") is an employee and agent

of Defendant COUNTY. Defendant KOCH serves as the Assistant County Assessor. She acted within the course and scope of her employment and agency at all times. Plaintiff sues Defendant KOC H in her individual capacity. 7. MS. PEOPLES is ignorant of the true names and capacities of the

Defendants sued herein as Does 1 through 15, inclusive, and therefore sues these Defendants by such fictitious names. MS. PEOPLES is informed and believes and thereon alleges that each of the fictitiously-named Defendants is responsible in some manner for the occurrences alleged herein, and that MS. PEOPLES' injuries were proximately caused by their conduct. MS.

27 PEOPLES will amend this Complaint to allege their true names and capacities when ascertained. 28
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8.

At all times herein mentioned, each of the Defendants was the agent and

employee of each of the remaining Defendants, and in doing the things herein alleged, was acting within the course and scope of said agency and employment. MS. PEOPLES is informed and believes and thereon alleges that each and every wrongful act by Defendants complained of herein was done with the approval, express or implied, of each of the other Defendants, and each Defendant has ratified and approved the acts and omissions of each of the others. FACTUAL ALLEGATIONS 9. Since 1975, Defendant COUNTY has been subject to a court-sanctioned

Consent Decree requiring it to take affirmative action to ensure equal employment opportunity for women and minorities in hiring and promotion. Since at least 1985, the job classifications of Associate Appraiser and Supervising Appraiser have been "imbalanced" within the meaning of the Consent Decree and therefore, subject to specific timetables and goals to increase the number of women and minorities hired into that position. Since at least 1994, the Assessor's Office has issued a report detailing its alleged compliance with the Croskrey Consent Decree, including its stated goal to promote more women and minorities into higher positions. 10. MS. PEOPLES began her employment with Defendant COUNTY as a

Junior Appraiser in July 1985. Within the next year, she was flexed into the position of Assistant Appraiser. She has worked in this same position for more than twenty-one (21) years. MS. PEOPLES has a Bachelor of Science degree in Business Administration with a major in Real Estate and Urban Land Economics. 11. Since being hired in 1985, MS. PEOPLES has been one of only two

Afri can- Ame ric ans hired as Appraisers into the Assessor's office. Ms. PEOPLES has always been the only African-American female employed as an Appraiser in the Assessor's office. Out of a total of forty-four (44) Appraisers in the Residential Division, only two (2) are AfricanAmerican. There has never been an African-American Residential Supervising Appraiser in the history of the Assessor's Office. There has never been an African-American employed as an Appraiser in the Commercial & Industrial Division of the Assessor's Office.

27 12. 28
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In August 2000, MS. PEOPLES lodged a complaint of gender

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discrimination based upon sexual harassment against Defendant KRAMER. MS. PEOPLES was offended by his invitation to join him at a local motel and his suggestions that she was "an expensive date." Following a perfunctory investigation, Defendant COUNTY cleared Defendant KRAMER of any wrongdoing. 13. Since she filed her sexual harassment complaint in 2000, MS. PEOPLES

has been consistently passed over for promotion. The first promotional opportunity for which Ms. Peoples was eligible occurred in January 2005, followed by successive promotional opportunities in March 2005, May 2005 and January 2006. 14. During the periods immediately preceding her applications for promotion,

in August 2004 and again in September 2005, Ms. PEOPLES received performance evaluations in which she received ratings of "exceeds job requirements" in thirteen (13) out of fifteen (15) rating categories, and ratings of "exceptional job performance" in the remaining two (2) categories. Throughout her tenure in the Assessor's office, MS. PEOPLES has been evaluated regularly. She has never received a negative performance evaluation. She has never been disciplined and has gotten along with her co-workers and with the public she serves. 15. Throughout her tenure, MS. PEOPLES has watched other women in her

department be promoted. The average length of time for similarly-situated Caucasian women in the Assessor's Office to be promoted has been five (5) years. Every other female Appraiser hired in the Residential Division has been promoted. MS. PEOPLES has more education, experience and tenure than 95% of the Residential Appraisers who have been promoted in the Assessor's Office. 16. In March and May 2005 and again in January 2006, MS. PEOPLES was

passed over for promotion several times to the positions of Associate Appraiser and Supervising Appraiser. In each case, less qualified non-African-American female applicants were selected over her. All of the candidates chosen had less seniority than she. 17. On January 5, 2006, Defendant COUNTY promoted a less qualified

Caucasian male to Associate Appraiser over MS. PEOPLES. MS. PEOPLES is informed and 27 believes that one of the persons selected for the Associate Appraiser position in January 2006 28
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was ranked lower than she by the interview panel. MS. PEOPLES also trained one of the successful candidates for his position. 18. Defendants KRAMER, KOCH and COUNTY's failure to promote MS.

PEOPLES is consistent with a pattern and practice of discrimination and promotion-bias against women and minority employees within the COUNTY. MS. PEOPLES was qualified for promotion but was denied promotion because of her race and gender, and in retaliation for her pro tec ted activity. 19. On November 6, 2006, MS. PEOPLES exhausted her administrative

remedies under the California Fair Employment and Housing Act ("FEHA") by submitting a charge to the California Department of Fair Employment and Housing ("DFEH"). On January 11, 2007, the DFEH issued MS. PEOPLES a Notice of Right to Sue. DAMAGES 20. As a proximate result of the Defendants' actions as alleged herein, MS.

PEOPLES was humiliated, hurt and injured in her health, strength and activity, and suffered and continues to suffer loss of reputation, goodwill and standing in the community, scorn and hum ili ati on, embarrassment, hurt feelings, mental anguish and suffering, depression, anxiety, loss of enjoyment of life, and a general loss of self-esteem and well-being, all to MS. PEOPLES' damage in an amount to be shown according to proof. 21. As a further proximate result of the acts of the Defendants and each of

them as alleged herein, MS. PEOPLES has also suffered a significant loss of income and employment benefits in an amount to be shown according to proof in excess of $25,000.00. 22. Defendants KRAMER and KOCH's acts were willful, wanton, malicious

and oppressive in that they knew or should have known that their conduct was unreasonable and illegal. Furthermore, KRAMER and KOCH's acts were carried out in wilful and conscious disregard of MS. PEOPLES' constitutional protected federal rights and well-being, entitling MS. PEOPLES to punitive damages in an amount appropriate to punish or make an example of them. ///

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FIRST CAUSE OF ACTION VIOLATION OF 42 U.S.C. SECTION 1981 RACIAL DISCRIMINATION (ALL DEFENDANTS) 23. MS. PEOPLES refers to and hereby incorporates by reference Paragraphs

1 through 22 as if fully set forth herein. 24. In doing each and all of the acts alleged herein, Defendants KRAMER and

KOCH intentionally, wilfully and without justification, did deprive MS. PEOPLES on the ground of her rights, privileges and immunities secured to her by the Constitution and laws of the United States, particularly her right to be free from intentional discrimination based on race, as provided by 42 U.S.C. Section 1981. WHEREFORE, Plaintiff prays for relief as hereinafter set forth. SECOND CAUSE OF ACTION VIOLATION OF 42 U.S.C. SECTION 1983 GENDER PLUS RACIAL DISCRIMINATION (DEFENDANTS KRAMER AND KOCH) 25. MS. PEOPLES refers to and hereby incorporates by reference Paragraphs

1 through 24 inclusive, as though fully set forth at length herein. 26. In doing each and all of the acts alleged herein, Defendants KRAMER and

KOCH were acting under color of state law. 27. protected groups. 28. By their conduct herein alleged, Defendants KRAMER and KOCH As an African-American woman, MS. PEOPLES is a member of two (2)

intentionally, wilfully and without justification, did deprive MS. PEOPLES of her rights, privileges and immunities secured her by the Constitution and the laws of the United States, including but not limited to her right to due process and equal protection as provided by the Fourteenth Amendment, in violation of 42 U.S.C. Section 1983. WHEREFORE, Plaintiff prays for relief as hereinafter set forth. /// ///

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THIRD CAUSE OF ACTION RETALIATION (DEFENDANT COUNTY) MS. PEOPLES refers to and hereby incorporates by reference Paragraphs

1 through 28, inclusive, as though fully set forth at length herein. 30. This action is brought pursuant to FEHA, to obtain relief for MS.

PEO PLES suffered in employment because of retaliation based upon her protected activity. 31. In August 2000, MS. PEOPLES lodged a complaint of sexual harassment

and racial discrimination against Defendant Kramer. As a result of her protected activity, Defendant Kramer vowed never to promote her as long as he was the Assessor. Despite her twenty-one years of experience as an Appraiser and her qualifications and commitment, Ms. Peoples was passed over for promotion eleven (11) times in 2005 and 2006. WHEREFORE, Plaintiff prays for relief as hereinafter set forth. FOURTH CAUSE OF ACTION VIOLATION OF FEHA GENDER PLUS RACE DISCRIMINATION (AGAINST DEFENDANT COUNTY) 32. MS. PEOPLES realleges and incorporates by reference Paragraphs 1

through 31, inclusive, as if fully set forth herein. 33. This action is brought pursuant to FEHA, to obtain relief for MS.

PEOPLES suffered in employment because of her race and gender. 34. As an African-American woman, MS. PEOPLES is a member of two (2)

protected groups under FEHA. 35. Defendants' discriminatory actions against MS. PEOPLES, including but

not limited to their failure to promote her, have caused and will continue to cause MS. PEOPLES los s of seniority, and losses of all other benefits accruing to said employment opportunity. FIFTH CAUSE OF ACTION RETALIATION (DEFENDANT KRAMER) 36. Ms. PEOPLES refers to and hereby incorporates by reference Paragraphs 1

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through 35, inclusive, as though fully set forth at length herein. 37. Defendant KRAMER was aware that Ms. PEOPLES engaged in protected

activity, including but not limited to filing a complaint of sexual harassment against him. As a result of Ms. PEOPLES' protected activity, Defendant KRAMER subjected her to adverse treatment, including but not limited to refusing to promote her to Associate Appraiser or Supervising Appraiser in 2005 and 2006. 38. By his conduct herein alleged, Defendant KRAMER intentionally,

wilfully and without justification, did deprive Ms. PEOPLES of her rights, privileges and immunities secured her by the Constitution and the laws of the United States, including but not limited to her right to due process and equal protection as provided by the Fourteenth Amendment, in violation of 42 U.S.C. Section 1983. 39. In doing each and all of the acts alleged herein, Defendant KRAMER were

acting under color of state law. WHEREFORE, Plaintiff prays for judgment against Defendants and each of them as follows: 1. Compensatory and special damages, including but not limited to, lost

wages and benefits, and damages for mental and emotional distress, in excess of $150,000 to be determined at the time of trial; 2. 3. Costs of suit incurred herein, including reasonable attorneys' fees; Punitive and exemplary damages in an amount appropriate to punish and

make an example of the individual Defendants to be determined at the time of trial; 4. Injunctive relief against Defendant COUNTY OF CONTRA COSTA and

its agents and employees, enjoining them from denying, or aiding or inciting the denial of, the civil rights of any African-American employees on the basis of race or gender in its worksites in the State of California, and compelling the COUNTY to take affirmative steps to ensure a fair work environment and promotional opportunities for African-American employees; and 5. /// Such other and further relief as the Court deems just and proper.

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Dated: May 6, 2008

PRICE AND ASSOCIATES /s/ Pamela Y. Price

PAMELA Y. PRICE, Attorneys for Plaintiff BERNICE PEOPLES

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