United States District Court, S.D. California
November 23, 2005.
ELLIS EVANS, Plaintiff,
SAN DIEGO TRANSIT CORPORATION, Defendant.
The opinion of the court was delivered by: IRMA GONZALEZ, District Judge
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
DISMISSING CASE WITH PREJUDICE
Presently before the Court is San Diego Transit Corporation's
("defendant") motion for summary judgement. For the following
reasons, the Court grants defendant's motion.
A. Factual Background
Plaintiff was employed by SDTC as a part-time bus driver,
subject to the collective bargaining agreement between SDTC and
the San Diego Bus Driver's Union ("the union"). (SAC at ¶ 1.) In
addition to providing bus service within the City of San Diego,
SDTC also operated the Chula Vista Transit ("CVT") bus fleet for
the City of Chula Vista. (Id. at ¶ 1.) In January 2002, SDTC
met with union members to discuss an arrangement in which
part-time SDTC drivers would provide service to understaffed CVT
routes for a limited time. (Id. at ¶ 2.) Despite negotiations,
apparently no agreement was reached. (Id.)
On February 6, 2002, SDTC recruited plaintiff to cover shifts
for CVT. (Compl. Ex. A at 12.)*fn1 The SDTC informed plaintiff that he would not
receive the experience-based wage progression available under the
collective bargaining agreement ("CBA") governing City of San
Diego bus routes. (SAC, at ¶¶ 5-8.) The pay was to be $8.85 per
hour, commensurate with SDTC starting pay rates. (Compl. Ex. A at
Plaintiff worked for CVT from approximately February 16, 2002
to May 23, 2002. (Compl. Ex. A at 11-18.) At some point
thereafter, plaintiff expressed concern that his CVT wage
violated the CBA. (See Compl. Ex. A at 10.) On June 26, 2002,
in accordance with the terms of the CBA, the union filed a formal
written grievance on behalf of plaintiff with the manager of
human resources at SDTC. (Id.) SDTC denied plaintiff's
grievance in a letter dated August 13, 2002. (Id. at 8.)
B. Procedural Background
On August 23, 2002, plaintiff filed a complaint with the small
claims division of the San Diego Superior Court, alleging that
SDTC violated the terms of the CBA when it refused to pay
plaintiff SDTC-level wages for work performed on the CVT routes.
(Compl. Ex. A at 1.) SDTC subsequently removed the case to the
District Court, initiating civil case number 02-1851-L (JFS). On
August 1, 2003, the court dismissed the case for want of
prosecution. (See 02-CV-1851 Doc. No. 5.)
On February 6, 2004, plaintiff, proceeding pro se, filed a
new complaint, initiating civil case number 04-0241-IEG (RBB).
Plaintiff again alleged that SDTC violated the CBA when it
refused to pay plaintiff the higher SDTC wage for his routes with
the CVT. (Compl. at ¶¶ 1-5.) Plaintiff's complaint also contained
allegations that SDTC discriminated against part-time workers in
violation of the CBA and 42 U.S.C. § 1981. (Id. at ¶¶ 1-5.) On
March 1, 2004, SDTC filed a motion to dismiss plaintiff's new
On April 20, 2004, the Court granted SDTC's motion to dismiss
on the grounds that plaintiff's claims were time-barred, that
plaintiff failed to exhaust his internal remedies as required by
the CBA, and that plaintiff failed to allege sufficient facts to
state a discrimination claim. The Court, however, granted plaintiff leave to amend, and on June 1,
2004, plaintiff filed a first-amended complaint ("FAC").
On June 14, 2004, SDTC filed a motion to dismiss the FAC,
arguing that plaintiff's wage discrepancy claims were barred by
the applicable statute of limitations, and that plaintiff failed
to remedy the deficiencies in his initial complaint with regard
to his racial discrimination claim. On July 8, plaintiff filed an
untimely opposition, which the Court accepted. SDTC filed its
reply on July 19, 2004. On July 30, 2004, the Court dismissed
with prejudice plaintiff's claims relating to the collective
bargaining agreement. The Court also dismissed plaintiff's
section 1981 claim, but granted plaintiff leave to amend.
On August 25, 2004, plaintiff filed a second amended complaint.
Thereafter, on September 9, 2004, SDTC filed the instant motion
to dismiss for failure to state a claim. SDTC argues that
plaintiff's discrimination claim is merely a restatement of his
collective bargaining claims, which the Court previously
dismissed with prejudice in its July 30, 2004 order. On October
13, 2004, plaintiff filed an untimely opposition, which the Court
accepted. SDTC declined to file a reply. On October 21, 2004, the
Court denied defendant's motion to dismiss.
On October 13, 2005, defendant filed the present motion for
summary judgment. On November 4, 2005, plaintiff filed
opposition. On November 7, 2005, defendant replied.
Defendant argues that plaintiff has not established a prima
facie case of racial discrimination because the undisputed facts
show no differentiation in pay between part-time SDTC drivers
driving CVT routes. Defendant further argues that its contractual
obligations to the City of Chula Vista was a legitimate,
non-discriminatory reason for its conduct. Plaintiff counters
that defendant discriminated against him by paying un-protected
class members driving Community Based Driver*fn2 routes more
than protected class members driving CVT routes when these routes
were the "same." (Opp. at 2.)
A. Legal Standard for Summary Judgment
"Under Rule 56(c), summary judgment is proper when the
pleadings and discovery, read in the light most favorable to the nonmoving party, demonstrate that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law."
Armstrong v. Burlington Northern R.R. Co., 139 F.3d 1277, 1278
(9th Cir. 1998) (quoting 20th Century Ins. Co. v. Liberty Mut.
Ins. Co., 965 F.2d 747, 750 (9th Cir. 1992)); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute is "genuine" when "the evidence presented is such that a
jury applying [the appropriate] evidentiary standard could
reasonably find for either the plaintiff or the defendant."
Anderson, 477 U.S. at 255.
Once the moving party meets the requirement of Rule 56, the
burden shifts to the party resisting the motion, who "must set
forth specific facts showing that there is a genuine issue for
trial." Anderson, 477 U.S. at 256. It is not enough for the
party opposing a properly supported motion for summary judgment
to "rest on mere allegations or denials of his pleadings." Id.
Genuine factual issues must exist that "can be resolved only by a
finder of fact because they may reasonably be resolved in favor
of either party." Id. at 250. To make such a showing, the
nonmoving party must go beyond the pleadings to designate
specific facts showing that there is a genuine issue for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The
requirement that a nonmoving party go beyond the pleadings is
meant to further one of Rule 56's principal purposes, namely "to
isolate and dispose of factually unsupported claims or defenses."
Id. at 323-24.
B. Plaintiff's Prima Facie Case
Section 1981 provides in relevant part: "All persons within the
jurisdiction of the United States shall have the same right in
every State and Territory to make and enforce contracts . . . and
to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white
citizens." 42 U.S.C. § 1981(a). The term "make and enforce
contracts" includes the making, performance, modification and
termination of contracts, and the enjoyment of all benefits,
privileges, terms and conditions of the contractual relationship.
42 U.S.C. § 1981(b).
To evaluate section 1981 claims, the Ninth Circuit applies an
analysis similar to that used in Title VII cases. See Doe v.
Kamehameha Schools/Bernice Pauahi Bishop Estate, 416 F.3d 1025,
1038 (9th Cir. 2005). As the Kamehameha Court did, the Court
will apply the McDonnell Douglas burden-shifting analysis that
governs Title VII cases to evaluate defendant's summary judgment motion. 411 U.S. 792 (1973). Under the McDonnell
Douglas burden-shifting analysis, plaintiff must first establish
a prima facie case of race discrimination by preponderance of the
evidence. If plaintiff is able to make a prima facie case, the
burden shifts to defendant to provide legitimate,
non-discriminatory reasons for its actions. Finally, if the
defendant provides legitimate, non-discriminatory reasons,
plaintiff must demonstrate that defendant's reasons are a pretext
for discrimination. Id. at 802-805.
To establish a prima facie case in a wage disparity case, a
plaintiff must show by preponderance of the evidence that he was
a member of a protected class and that he was paid less than
other similarly situated, non-protected class employees. Amro v.
Boeing Co., 232 F.3d 790, 798 (10th Cir. 2000); see also
Forsberg v. Pacific Northwest Bell Telephone Co.,
840 F.2d 1409, 1414 (9th Cir. 1988) (holding that in a Title VII case,
plaintiff must make a prima facie case showing unequal pay for
In the present case, there are two potential groups of
"similarly situated" employees against which the Court might
compare the plaintiff. The first group consists of drivers on
SDTC lines and part-time SDTC drivers who also drive CVT lines.
The second group consists only of part-time SDTC drivers who
drive CVT lines.*fn3 The Court finds that the drivers
driving SDTC lines are not similarly situated to part-time SDTC
drivers who also drive CVT lines. While all the members of these
two groups drive buses, they do so for operationally distinct bus
lines in different cities. SDTC drivers have routes in San Diego
itself whereas CVT drivers drive routes in the City of Chula
Vista. (Declaration of Steve St. Pierre, Exhibit B.) Two
different contracts, one with the city of Chula Vista, the other
not, govern the professional rights and responsibilities of the
two groups of bus drivers. (Id.) Moreover, SDTC drivers have a
collective bargaining agreement that presumably addresses their
professional rights and responsibilities whereas part-time SDTC
drivers volunteering for CVT lines have no so such agreement.
(SAC at ¶ 2.) For these reasons, the Court finds that only
part-time SDTC drivers driving CVT routes are similarly situated
to plaintiff. Plaintiff has not met his McDonnell-Douglas burden of showing
discrimination between him and other part-time SDTC drivers
driving CVT routes. It appears undisputed that defendant did not
pay plaintiff any less than other part-time SDTC drivers driving
CVT routes. Defendant has submitted a sworn statement from its
human resources manager and payroll material indicating that
defendant paid all thirty part-time bus drivers $8.85 an hour for
driving CVT routes. (Declaration of Steve St. Pierre, Exhibit B;
Exhibit E; Exhibit F.) Plaintiff offers very little to dispute
this fact either in his complaint or opposition. Plaintiff does
not dispute the veracity or relevance of defendant's payroll
material. Rather, plaintiff offers only that "Russell
Robinson"*fn4 told him in January of 2004 that "he was paid
more for doing CVT routes." (Opp. at 3.) Since plaintiff will
bear the burden at trial of showing initial discrimination, the
reference in the pleadings to a statement by Russell Robinson is
insufficient to show an genuine issue for trial. Celotex Corp.
477 U.S. at 323.
No reasonable person examining the submitted payroll evidence
and papers before the Court could conclude that defendant paid
plaintiff differently than other similarly situated employees.
Consequently, the Court finds it appropriate to grant summary
For the foregoing reasons, the Court GRANTS defendant's
motion for summary judgment. The Clerk of the Court SHALL enter
judgment for defendant and against plaintiff. The Court
DISMISSES plaintiff's complaint with prejudice.
IT IS SO ORDERED.
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