In Zanone v. The City of Whittier, (— Cal.Rptr.3d —, 2008 WL 1799683, Cal.App. 2 Dist., April 22, 2008), a California Court of Appeal considered whether a police officer who brought a lawsuit for sexual discrimination could use a memorandum at trial that was contained in another police officer’s file, which discussed the investigation of that officer’s claim of racial discrimination, and was written by the police chief. The Court of Appeal held that the officer could use the memorandum even though she did not file a Pitchess motion because the memorandum did not pertain to the other officer’s performance of his or her duties.
Facts
Gina Zanone (“Zanone”) worked for the Gardena Police Department for ten years as a patrol officer and a detective. In January 1997, Zanone joined the Whittier Police Department (“Whittier”). After approximately six months, Zanone was transferred to patrol duty in the City of Santa Fe Springs, which Whittier policed pursuant to a contract. During her time in the patrol division, Zanone received ratings of competent plus and outstanding, including an officer of the year award.
Zanone first applied to be a detective in Santa Fe Springs in 1998, but her application was denied. She reapplied in 1999 and was transferred to the detective bureau in January 2000 becoming the first female detective assigned to the detective bureau in Santa Fe Springs. The assignment was for five years, however, policy provided she could be transferred out of the detective bureau without cause on the anniversary date of her assignment.
During her first ten months as a detective, Zanone did not receive any complaints about her performance. That quickly changed after Michael Redmon (“Redmon”) became her lead detective and Kent Miller (“Miller”) became her partner. The following month, Redmon and the bureau’s commander met with Zanone to call attention to several deficiencies in her performance and advised that she improve her communication with co-workers and “be a better team player,” participate in the execution of search warrants, and to handle her caseload more effectively. After receiving a memorandum documenting the meeting, Zanone immediately notified the human resources department at Whittier stating she believed she was being treated differently because she was a woman. Whittier hired a labor attorney who interviewed Zanone and the other detectives and concluded that Zanone was not subjected to sex discrimination or harassment. However, the attorney failed to interview the officers Zanone identified that could have supported her claim of the alleged deficiencies that were a cover up for sex discrimination. The officers identified by Zanone included her former partner and several other female officers.
As a result, Zanone received a rating of “competent” on her first annual performance review. The review included criticisms of her performance that had not been previously identified. In 2001, Zanone “continued to experience difficulties in the bureau.” In January 2002, she was informed she would be transferred back to patrol pursuant to the “without cause” provision that allowed transfer on an anniversary date.
Zanone continued to experience difficulties after her transfer back to patrol division, including hang up calls that were eventually traced to the home of a Whittier sergeant, problems with dispatch, and problems with the sergeant in charge of the jail. Zanone ceased working after a psychologist determined she was no longer capable of performing her duties due to depression, anxiety, and panic disorder.
Zanone brought a lawsuit against Whittier alleging sex discrimination, harassment, and retaliation in violation of the Fair Employment and Housing Act. A jury awarded Zanone $1,249,165 in damages.
Decision
On appeal, Whittier asserted that the trial court erred in allowing Zanone to quote from a memorandum, which had been located in another officer’s personnel file, but had not been obtained by Zanone pursuant to the statutory procedures for discovery of a peace officer’s personnel records. Whittier also asserted that the trial court erred when it failed to admit documents pertaining to employment exit interviews from former female officers. The Court of Appeal found that the trial court did not err and affirmed the jury’s verdict.
Because a law enforcement officer has a strong privacy interest in his or her personnel files, the California Legislature enacted a statutory scheme, which mandates certain procedures that must be followed for the discovery of the personnel records. The personnel records of peace officers shall not be disclosed unless the party seeking the documents files a motion, which reveals a “good cause for discovery” by showing “the materiality of the information to the pending litigation,” and that the police agency has custody of the records or information sought. Motions for discovery of personnel files of peace officers are sometimes referred to as Pitchess motions.
Zanone used a memorandum to impeach the police chief, Chief Singer, at trial. The memorandum was written by Chief Singer and placed in another officer’s personnel file. The memorandum was prepared in an unrelated investigation into claims of racial discrimination made by the other officer. In the memorandum, Chief Singer stated, “There is a perception of a lack of an advantageous or career-enhanced future for minority or female officers within the WPD.” Whittier asserted that Zanone could not use the memorandum because she did not obtain the memorandum through a Pitchess motion.
The Court of Appeal noted that the California Supreme Court recently held that only information specifically listed in Penal Code section 832.8 is a “personnel record” subject to the Pitchess procedure. The information set out in section 832.8 is personal data, medical history, election of employee benefits, “other information the disclosure of which would constitute an unwarranted invasion of personal privacy,” and “[c]omplaints or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties.”
Whittier contended that the memorandum falls within the complaints and investigations category because the investigation of the officer’s complaint of racial discrimination was based on events that the officer perceived his own discriminatory treatment by others in the department. The court rejected this argument and stated that “to be a personnel record the complaint or investigation of a complaint must both concern an event that involved the officer as a participant or witness and pertain to the officer’s performance of his or her duties.” The memorandum at issue did not pertain to the performance of duties by the officer complaining of racial discrimination. Therefore, Zanone’s failure to file a Pitchess motion did not preclude her from using the memorandum to impeach Chief Singer’s testimony.
The Court of Appeal also held that the trial court did not err in refusing to allow exit questionnaires and exit interview summaries to be introduced into evidence by Whittier. The exit questionnaires were prepared by two female officers that were leaving their employment with the police department. The exit summaries were summaries prepared by Whittier personnel who conducted the exit interviews.
Whittier asserted that the documents should be allowed into evidence as business records. Evidence Code section 1271 provides for the admission of a writing into evidence when the writing was made in the regular course of a business, at or near the time of the event to which the writing relates, if a qualified witness testifies to the identity of the writing and how it was prepared, and if the “sources of information and method and time of preparation were such as to indicate its trustworthiness.”
The court concluded that the exit questionnaires are not business records because they were not created in the ordinary course of the officers’ business. The officers’ departure from the department was an infrequent event and when the questionnaires were prepared the officers’ were not acting on behalf of the department. The questionnaires were not inherently trustworthy because the officers could have believed that, if they made any complaints about the department, the information could possibly be communicated to their new employers.
The summaries of the exit interviews are also not business records. Although the summaries were prepared in the ordinary course of business, the interviewers did not have first hand knowledge of the events reported by the departing officers. The officers that had first hand knowledge did not have a business duty to accurately report the facts surrounding their departure from the department to the interviewer.