Levy v. Cnty. of Alpine
| Decision Date | 10 March 2016 |
| Docket Number | No. 2:13-cv-02643-KJM-CKD,2:13-cv-02643-KJM-CKD |
| Court | U.S. District Court — Eastern District of California |
| Parties | ROBERT E. LEVY, Plaintiff, v. COUNTY OF ALPINE, et al., Defendants. |
Alpine County is home to about 1,100 people, fewer than any other county in California. See U.S. Bureau of the Census, Dep't of Commerce, 2010 Census.1 Markleeville, the County Seat, is home to about 200. Id.
Robert Levy, former Undersheriff of Alpine County, brings this case against Alpine County and two of its officers. He charges them with violations of his civil rights, age discrimination, retaliation, and defamation. The defendants move for summary judgment. The court held a hearing on January 29, 2016. Douglas Watts appeared for Levy, and Gayle Tonon appeared for the defendants. For the following reasons, the motion is granted in part.
The court first briefly addresses the defendants' evidentiary objections. See Resp. & Objections Stmt. Disputed Facts, ECF No. 35-1; Resp. & Objections to Stmt. Undisputed Facts, ECF No. 35-2; Objections to Declarations, ECF No. 35-3; Notice of Objections, ECF No. 36.
In recent years, many judges in this district, including the undersigned, have cautioned litigants against advancing numerous, terse and reflexive objections at summary judgment, especially when the objector is the moving party. See, e.g., Lindell v. Synthes USA, ___ F. Supp. 3d ___, 2016 WL 70305, at *2 (E.D. Cal. Jan. 6, 2016); U.S. E.E.O.C. v. Placer ARC, 114 F. Supp. 3d 1048, 1052-53 (E.D. Cal. 2015); Hanger Prosthetics & Orthotics, Inc. v. Capstone Orthopedic, Inc., 556 F. Supp. 2d 1122, 1126 n.1 (E.D. Cal. 2008); Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006). Defendants are directed to these orders, for future reference.
Standards of admissibility at trial and summary judgment are governed by different rules and different motivations. Whereas the full panoply of the Federal Rules governs evidence presented to a jury at trial, Federal Rule of Civil Procedure 56 provides that a party may raise objections if "the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). As this language suggests, at summary judgment the evidence's propriety depends not on its form, but on its content. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Block v. City of L.A., 253 F.3d 410, 418-19 (9th Cir. 2001). Thus, for example, on review of summary judgment, the Ninth Circuit has considered the hearsay contents of a diary whose substance would have been admissible in some other form at trial. See Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003). Similarly, if evidence lacks full-fledged authenticity or foundation at summary judgment, it may yet warrant consideration if "substantive evidence could be made use of at trial." Portnoy v. City of Davis, 663 F. Supp. 2d 949, 953 (E.D. Cal. 2009) (citing Fraser, 342 F.3d at 1036) (quotation marks omitted).
Relevance, vagueness, speculation, and similar objections are particularly ill-fitted for summary judgment because the court may simply disregard irrelevant or indecipherableevidence. See, e.g., Burch, 433 F. Supp. 2d at 1119. Likewise, an objection that a statement is argumentative or mischaracterizes the record either requests a credibility determination unsuited for summary judgment or would better be directed at the underlying evidence itself. See, e.g., Stonefire Grill, Inc. v. FGF Brands, Inc., 987 F.Supp.2d 1023, 1034 (C.D. Cal. 2013).
The court overrules each of the defendants' objections. First, the hearsay objections attack evidence that is likely admissible in some other form at trial. In addition, much of the supposed hearsay is not hearsay at all, but the statements of a party opponent or statements cited for some purpose other than establishing their truth.2 See, e.g., Responses & Objections nos. 4, 9, ECF No. 35-1; cf. Fed. R. Evid. 801(d)(2). Second, the court disregards irrelevant evidence and counsel's raw assertions unsupported by evidence, and therefore overrules objections based on relevance, misstatement of the record, improper argument, and overrules objections that a witnesses' statement is unsupported in turn by citations to other evidence. Finally, the court overrules objections based on assertions of immunity. The motion papers, not separate statements of fact, are the correct means of arguing affirmative defenses.
Levy was born in 1964. Pl.'s Response Undisputed Material Facts (UMF), ECF No. 32. He was hired as a Deputy Sheriff in Alpine County in April 1995 and promoted to Undersheriff in 2000. UMF nos. 4, 5. In general, as Undersheriff, Levy "ran the operations" in the Sheriff's Office. Crawford Dep. 19. Specifically, he supervised officers and patrol, ensured investigations were completed, and he briefed the Sheriff daily, among other duties. Id. at 19-20. For most of Levy's employment, John Crawford was Sheriff. See generally Crawford Decl., ECF No. 34.
At about the same time Levy began working as Undersheriff, the County and the State of California began discussions on a joint project to develop and update the telecommunications infrastructure on a mountaintop within the County (the Hawkins Peakproject). See Levy Dep. 31; Knorr Decl. Ex. F, at 1, ECF No. 026-4. Discussions about a similar project on another peak began in 2008 (the Leviathan Peak project). See UMF no. 6; Levy Dep. 30-31. As Undersheriff, Levy took on several duties related to the telecommunications projects, although these duties were not strictly within his job description, and he received no separate compensation for this work. See Levy Dep. 155-56; id. Ex. H; Nunes Dep. 28, 50. Among other things, Levy made reports on the projects to the County Board of Supervisors. See generally Knorr Decl. Ex. F; Veatch Decl. ¶ 8, ECF No. 34. Tom Sweeney, a former college professor, and Henry "Skip" Veatch, former Alpine County Sheriff, were both on the Board of Supervisors during the relevant period. See Sweeney Dep. 10-12; Veatch Decl. ¶ 4.
Pamela Knorr began working as the County's administrative officer in 2008. Knorr Decl. 1. During this time she was also the County's personnel director, Knorr Dep. 40, and at some point she further assumed the responsibilities of social services director, Veatch Dep. 66. Knorr reported to and worked closely with the Board of Supervisors. Knorr Decl. 2. Knorr also began working with the Sheriff's Department on the telecommunications projects. See Crawford Dep. 88. In about January 2011, she asked to take over control of the Leviathan Peak project, and the Sheriff's Department assumed an advisory role. Id.
Knorr and Levy did not get along. They butted heads over Knorr's requests for access to information that Levy believed she had no right to receive; he often denied her requests. See Levy Dep. 242-47. Levy recounts that while he was on vacation in 2010, Knorr told the Sheriff a "radon problem" required some of Levy's staff to relocate to another office about five miles away. Levy Dep. 183-84. When Levy returned from vacation, he found his staff had moved, and he was eventually forced to relocate his own office and join his staff. Id. at 184. Levy believes Knorr invented the "radon problem" because she was mad at him. See id. at 183-85.
Levy also complained to the Sheriff and to Veatch about what he believed was Knorr's unlawful discrimination against "older management workers." Levy Dep. 164-65. Levy supports his opposition with testimony from the County's former Human Relations (HR) Specialist, Beth Nunes, who believed Knorr engaged in a "nefarious" campaign to shedemployees Knorr believed were too old, paid too much, or otherwise undesirable. Nunes Decl. ¶ 5, ECF No. 34. Nunes recalls Knorr saying one particular staff member had to go, even if it meant Knorr had to "make her sit there and count paper clips all day." Nunes Dep. 115-16. Another witness remembers Knorr relating her goal in a Board of Supervisors meeting: "creating a younger, cheaper workforce." Hartnett Dep. 38-39.
For her part, Knorr said she believed Levy had purposefully withheld information about the costs of the Leviathan Peak project. Nunes Dep. 10, 39-41, 61.
Levy also had a rocky relationship with Sweeney, with whom he had disagreements about the funding and installation of infrastructure for the County's emergency services, paramedics, and fire protection before he was promoted to Undersheriff. Levy Dep. 255-57.
In mid-2012, the County Board of Supervisors received a report from the Sierra West Group, a construction consulting company, on the expected costs of the Leviathan Peak project. See Knorr Decl. Ex. F, at 9; Levy Decl. Ex. A, at 2-6. Some evidence suggests the report was presented in April 2012, see Knorr Decl. Ex. F, at 9, whereas other evidence suggests the report was not completed before July 2012, see Levy Decl. Ex. A, at 2, but the discrepancy is not material to this order. In August 2012, on her own initiative, Knorr performed a "financial analysis" to compare various cost estimates for the Leviathan Peak project, including the Sierra West estimates, and she submitted her findings to the Board of Supervisors. See Knorr Decl. 2 & Ex. B. She described her findings as "beyond disturbing" and expressed concerns that the County was at risk of incurring additional, unexpected multi-million-dollar liabilities. Id. Ex. B, at 1. She recommended the Board engage a "neutral party" to investigate. Id.
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