evidence of Adoniram's medical reevaluation and subsequent "rehiring" as establishing discrimination against Gerson as an Hispanic. This court cannot say that if it were introduced, it would "probably" lead to a different result. The motion with respect to this evidence will be denied.
Alleged Statements of Dr. Hayes
Dr. George T. Hayes, the City's Medical Director, testified by deposition at Ulloa's hearing in 1985. Petitioner argues that this court should reopen the record and vacate its previous order on the basis of statements allegedly made by Dr. Hayes several months after this court's final decision. Counsel argues that Dr. Hayes, after being pursued by counsel for petitioner over a period of several months, "agreed that Mr. Ulloa had been treated unfairly and further agreed to help remedy the injustice." Petitioner's Motion, October 23, 1987 at p. 3, par. 4.
The basis for petitioner's argument is an unsigned memorandum dated January 20, 1987, prepared by petitioner's counsel for Dr. Hayes' signature. The court heard the testimony of: Dr. Hayes; Kurt Simons, Ph.D., an opthalmology expert, proffered to substantiate the factual basis for the statements made in the memorandum petitioner attributes to Dr. Hayes;
and Gregory Schirm, a witness to communications between petitioner's counsel and Dr. Hayes regarding the memorandum.
This memorandum states that three individuals who were tested at approximately the same time as Ulloa passed their Police Department medical examinations after achieving scores on a particular depth perception test ("Titmus" or "Stereo Fly") similar to the score of Ulloa, who failed. Dr. Hayes argued that he never intended to sign the memorandum without further reviewing the records of the relevant individuals. Counsel for petitioner argued and his witness, Mr. Schirm, testified that Dr. Hayes agreed that the memorandum was accurate, but needed to consult with an attorney at the City Solicitor's Office before signing the document.
The scores upon which the conclusions in the memorandum were based were available to petitioner prior to the original hearing. Petitioner maintains that after discussions with petitioner's counsel, Dr. Hayes had a different opinion later about facts adduced or readily available at the original hearing. Such a revised opinion based on then-available facts, even if credible, is not "newly discovered evidence." See Stilwell v. Travelers Insurance Co., 327 F.2d 931, 932-33 (5th Cir. 1964) (concluding that particular evidence alleged to be newly discovered could not be excluded because it was not merely a new opinion based on facts already presented).
Moreover, petitioner did not establish that Dr. Hayes had changed his opinion. On the original record, petitioner's counsel never questioned Dr. Hayes regarding the medical examination of the three individuals or asked him to compare their examinations with Ulloa's. Dr. Hayes testified that he concluded upon examination of the pertinent records subsequent to his contact with petitioner's counsel that those individuals cited by petitioner's counsel achieved failing scores as did Ulloa on the Stereo Fly test, but they, in contrast to Ulloa, had passed another depth perception test administered by the Police Department, the "American Optical Sight Screener" test; this testimony was unchallenged and credible. Ulloa never passed either test or maintained that he could have.
Dr. Hayes' deposition testimony in 1985 was that a passing score on either test was sufficient, see 1985 Hayes quote, infra, so petitioner could have investigated the accuracy of the tests and the alleged discriminatory application of the tests prior to the original hearing.
Nor did counsel present other experts on these matters. Petitioner could have developed the comparative treatment of Ulloa and these three other individuals at the original hearing or could have presented the testimony of experts. Petitioner had adequate opportunity to present his case. The fact that counsel formerly pursued some arguments and not others does not make this evidence "newly discovered."
Even if it were "newly discovered evidence," and the court accepted petitioner's evidence in a new hearing, the result would likely be the same. On the record as a whole, the court would not be persuaded that Gerson Ulloa was discriminated against because he is Hispanic. The motion with respect to this evidence will also be denied.
MOTION UNDER RULE 15
Petitioner seeks to amend his previously filed motions to conform them to his view of the evidence adduced at the October 30, 1987 hearing. If granted, petitioner would include a claim to reopen the previous record on the basis of fraud under Fed. R. Civ. P. 60(b)(3). The primary "fraud" alleged by petitioner is that the City misled him (and the court) at the original proceeding to believe that the written depth perception standards of the Police Department were applied as written.
Fed. R. Civ. P. 15(b) provides:
Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause they to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.