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Shelton v. City of Manhattan Beach9/28/2004
believes it has matters with [plaintiff] that are outside the scope of my representation, then that is not my concern. However, to the extent the City takes any action that my client and I deem to evidence further discrimination or retaliation, we would seek to add such action to [plaintiff's] litigation claims against the City."
On September 27, 2002, Captain Marshall ordered plaintiff to appear for an interview on October 8, 2002. The interview was continued to October 24, 2002, at plaintiff's request. On the evening prior to his scheduled interview, plaintiff hand-delivered a note from his psychiatrist, Dr. Ehlers, stating that he was psychologically unable to be interviewed. Nevertheless, less than two weeks later, on October 29, 2002, plaintiff submitted to a deposition in the present case. Mr. Wheatley filed a motion to compel disclosure of peace officer personnel records attempting to obtain internal affairs investigative materials. That motion was denied. It was undisputed that after the motion to compel disclosure of the peace officer personnel records was denied, plaintiff agreed to be interviewed as part of the internal affairs investigation process. Mr. Horowitz, the city's attorney in this lawsuit, declared that after the peace officer personnel records disclosure motion was denied, "Mr. Wheatley advised me that Dr. Ehlers had medically released [plaintiff] for the interviews." On December 23, 2002, Captain Marshall ordered plaintiff to appear for an interview on January 6, 2003. Mr. Horowitz explained what happened then: "[Plaintiff] wrote and said that his representative was `unavailable' but provided no alternative dates. The interviews were rescheduled, but [plaintiff] did not appear this time because his representative's child was ill. The interviews were again rescheduled . . . ." Plaintiff's internal affairs interview finally took place on January 31, 2003.
Within three weeks of plaintiff's interview, investigative findings and determinations were made. The lieutenant found, among other things, Officer Eccles had made only two comments: "There are only two references to any comments made by Officer Eccles. [A sergeant] stated in his interview that he had a vague recollection of Officer Eccles and Officer Sellan commenting that they were `going to take care of this mess.' [The sergeant] thought the comment was in reference to the officer[s'] motivation to become [field training officers]. The only other reference to Officer Eccles occurred during an interview with [another officer]. [The officer] stated that he heard Officers Eccles and Sellan refer to [two police officer recruits] as gay, but later described [them] as passive." Further, the lieutenant concluded: "[Plaintiff] has been called gay and/or referred to as being gay. [An officer] stated that he heard desk clerks use a lispy voice when they were talking about [plaintiff] two years ago. [An officer] stated in his interview that he has ove
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