Terry v. City of San Diego, et al

Filing 203

ORDER Re: 197 Plaintiff's Motion to Clarify and/or For Reconsideration: Because the Court's 5/18/2011 Order did not preclude Plaintiff from offering this evidence in support of her disparate impact claims to establish use of the proxy comparison pool, the Court Denies as Moot Plaintiff's Motion for Reconsideration. Signed by Judge Michael M. Anello on 7/18/2011. (All non-registered users served via U.S. Mail Service)(leh)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALISON N. TERRY,

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CASE NO. 06CV1459 MMA (CAB)
Plaintiff,

ORDER RE: PLAINTIFF’S
MOTION FOR CLARIFICATION
AND/OR FOR
RECONSIDERATION

vs.
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CITY OF SAN DIEGO, and DOES 1-20,
inclusive,

[Doc. No. 197]

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Defendants.
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Pending before the Court is Plaintiff Alison N. Terry’s motion for clarification and/or for

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reconsideration of one portion of the Court’s Order dated May 18, 2011. [Doc. No. 197.]

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Defendant City of San Diego has filed a response, to which Plaintiff replied. The Court found this

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matter suitable for determination based upon the papers and case record, and took the matter under

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submission pursuant to Civil Local Rule 7.1.d.1. The Court issues the following order to address

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Plaintiff’s request for clarification, and denies as moot Plaintiff’s motion for reconsideration.

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I. RELEVANT BACKGROUND

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On March 2 2011, the Court ordered Plaintiff to serve an offer of proof concerning the

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pattern and practice evidence she intends to present to support her disparate treatment claims.

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[Doc. No. 182; see also Doc. No. 68.] On March 23, 2011, Plaintiff submitted her offer of proof

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regarding the evidence she intended to offer at trial on her disparate treatment claims. [Doc. No.
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06cv1459 MMA (CAB)

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185.]
On May 18, 2011, the Court ruled on Plaintiff’s proffered evidence. [Doc. No. 193.] The

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Court ruled that Plaintiff could not offer the following evidence in support of her disparate

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treatment claim:

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Lifeguards, including female lifeguards, have been told by various members of
lifeguard management that the highest employee performance ratings (EPRs) were
needed to have a realistic opportunity to get promoted to Lifeguard II.

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[Doc. No. 193, p. 7 citing Pl.’s Offer of Proof, Doc. No. 185.]

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The Court reasoned this evidence was “too attenuated from Plaintiff’s disparate treatment claim

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that she applied for, and was denied, a promotion due to discriminatory animus in the factors

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considered when determining whether to promote a person who has applied.” [Id., citing FED. R.

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EVID. 403; Obrey v. Johnson, 400 F.3d 691, 699 (9th Cir. 2009).]

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II. DISCUSSION & CONCLUSION

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Plaintiff brings the present motion to request clarification regarding the Court’s May 18,

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2011 Order. Specifically, she asks whether the Court’s Order also intended to preclude her from

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presenting this evidence in support of her disparate impact claims. The answer is no. The Court’s

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May 18, 2011 Order did not preclude Plaintiff from offering this evidence (i.e., that lifeguards

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have been told that the highest EPRs were needed to have a realistic opportunity to get promoted

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to Lifeguard II) in support of her disparate impact claims. Plaintiff’s offer of proof only concerned

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the pattern and practice evidence she intended to present in support of her disparate treatment

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claims. It follows that the Court’s subsequent ruling on the offer of proof therefore related only to

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her disparate treatment claims. Because the Court’s May 18, 2011 Order did not preclude Plaintiff

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from offering this evidence in support of her disparate impact claims to establish use of the proxy

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comparison pool, the Court DENIES AS MOOT Plaintiff’s motion for reconsideration.

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IT IS SO ORDERED.

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DATED: July 18, 2011
Hon. Michael M. Anello
United States District Judge

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06cv1459 MMA (CAB)