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January 18, 1994

LITTON SYSTEMS, INC, et al., Defendants.


The opinion of the court was delivered by: MARILYN HALL PATEL

Plaintiff Barbara Sargent brought this action in state court on March 10, 1993 against Litton Systems, Inc., Litton Industries, Inc., Dalmo Victor, Inc., General Instrument Corp. and unnamed defendants, alleging injuries arising out of the termination of her employment at Litton systems, Inc. The action was subsequently removed to this court on April 15, 1993.

 Now before this court is the motion of Litton Systems, Inc. and Litton Industries, Inc. (collectively, "Litton") for summary judgment on Ms. Sargent's claim under California's Fair Employment and Housing Act, Cal. Govt. Code ยง 12940 ("FEHA"). Having considered the parties' submissions and oral argument, the court enters the following memorandum and order.


 Under Federal Rule of Civil Procedure 56, summary judgment shall be granted:

against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.

 Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The moving party bears the initial burden of identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. The burden then shifts to the nonmoving party to "go beyond the pleadings, and by [its] own affidavits, or by 'depositions, answers to interrogatories, or admissions on file' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.").

 The moving party does not surmount its initial burden through conclusory allegations as to the state of the material on file, however, it is not required to "support its motion with affidavits or other similar material negating the opponent's claim." Celotex, 477 U.S. at 323. The moving party discharges its burden by showing that the nonmoving party has not disclosed the existence of any "significant probative evidence tending to support the complaint." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 290, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968).

 The court's function on a motion for summary judgment is not to make credibility determinations. Anderson, 477 U.S. at 249. The inferences to be drawn from the facts must be viewed in a light most favorable to the party opposing the motion. T.W. Elec. Serv., 809 F.2d at 631.


 Ms. Sargent began working for Dalmo Victor in its Belmont, California facility in approximately September 1980. See Joint Statement of Undisputed Facts P 1. Sometime around August 1991, Litton Systems, Inc. ("LSI"), through its Applied Technology Division, acquired the assets of Dalmo Victor. Id. P 2. LSI is a subsidiary of Litton Industries, Inc. At the time of the acquisition, LSI offered employment to Ms. Sargent and she accepted. Id.

 According to Ms. Sargent, she has suffered from a chronic condition in her back and in the back of her neck since at least 1988. The condition makes it painful (or impossible) for her to do any heavy lifting or to turn her head upwards or to the side for more than a brief interval. In addition, it is painful for her to drive a car for over twenty minutes and unbearably painful for her to do so for over an hour. She has less difficulty riding as a passenger, since it is easier to shift positions as a passenger. See Declaration of Barbara Sargent P 3. *fn1"

 In December 1991, Ms. Sargent's department moved from the former Dalmo Victor facility in Belmont to LSI's facility in San Jose. In the course of packing her personal effects for the anticipated move, Ms. Sargent alleges that she exacerbated her back injury. See id. P 2. Additionally, as a result of this transfer Ms. Sargeant's commute to work from home by her car increased from about twenty minutes to over an hour. See id. P 4. On January 5, 1992, Ms. Sargent tendered a typed resignation letter to Tom Conway, a human resource specialist at LSI, and Terry Schmidt, her manager at LSI. *fn2" The letter stated:

Regretfully, due to my back condition, and upon advice of my physician, I must hereby submit my resignation which will ...

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