This is an employment discrimination case wherein plaintiff contends she was wrongfully denied promotion from the Sheriff’s training academy on account of her gender and race.  Before the Court this day is a motion by plaintiff to compel production of key weekly grad sheets, and a competing motion by defendant for summary judgment/adjudication.

Motion to Compel

Plaintiff was part of the ‘199’ class for the OCSD academy.  At the time of her dismissal from the academy, she had just completed her 15th and 16thweeks.  The grade sheets for those weeks had already been posted for all recruits to review, and according to plaintiff showed her doing quite well compared to her peers.  Following ejectment from the academy, plaintiff has attempted unsuccessfully to secure a copy of those key weekly grade sheets.  Even after the recent PMK deposition, it remains defendants’ position that the grade sheets for weeks 15 and 16 are “gone.”

Plaintiff filed the within motion on 05/10/18.  Defendant first attacks on various procedural grounds, but given the importance of the issue this Court elects to forgive those procedural issues.  For example, although this motion was indeed filed after the alleged cut-off based on the original trial date, this motion relates to the PMK deposition recently ordered by this Court – a deposition which itself took place after the discovery cut-off.  Since the deposition went forward, the related motion to compel must as well.  Although there is no separate statement accompanying the motion, the issue is singular and simple.  The service/notice issue (of it seems 1 or 2 days) is waived by the mere fact defendant has filed a substantive opposition to the motion.

On to the merits …

Defendant justifies the failure to produce the grading sheets for weeks 15 and 16 for two reasons: (1) plaintiff did not specifically ask for those in the deposition notice for Ms. O’Neil; and (2) those particular grade sheets no longer exist.

Regarding the request, the deposition notice asked for everything the OCSD HR department “relied on in its conclusion that the Plaintiffs complaint of discrimination was unfounded.”  During the deposition Ms. O’Neil confirmed that she reviewed plaintiff’s entire performance file, which all sides agree likely included grade sheets for weeks 1-16.  At the very least, the deponent acknowledged that weekly grade sheets were at least marginally relevant to her claim of discrimination.  Since the deponent relied on everything in the file, the deponent reasonably should have produced the weekly grade sheets still withheld at that time.

Regarding the disappearance of the grade sheets, defendant explains that OCSD went through a computer transition that resulted in the loss of weeks 15 and 16 (but no others).  The explanation strains credulity, to say the least.  However, defendant advises that the raw data is still available and can be used to generate replacement grade sheets for weeks 15 and 16, but only if plaintiff signs a protective order because the raw data is technically a “school” record and not a record of the OCSD.  This seems an issue for the OCSD, not plaintiff.

As an aside, this Court would be remiss if it overlooked defendant’s laughable contention that the grade sheets for weeks 15 and 16 are “irrelevant” because plaintiff performed well and was discharged purely for dishonesty.  First, this Court would expect there to be some record of said dishonesty in plaintiff’s file, and the weekly grade sheets would be a good place for that.  Second, defendant’s original defense was that plaintiff failed “several components” of the academy, which brings the grade sheets squarely into relevance.

Motion to compel GRANTED.  Defendant shall have 10 days to produce original grade sheets for weeks 15 and 16.  If those are truly lost forever, defendant shall so state in a verified response, and in conjunction therewith produce in some usable form an adequate and reliable substitute thereof using the raw data available.  Since this information may very well be relevant to the pending motion for summary judgment, that motion must be continued.  Plaintiff shall have 10 days following production of the aforementioned grade sheets to file an amended opposition to the MSJ, followed of course by an amended reply.  Thus, the MSJ must be continued for a period not less than 45 days.  The trial date of 06/25/18 must also be continued for at least 60 days.  Parties to discuss and hopefully reach agreement on new dates.

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