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Cooper v. United Air Lines, Inc.

United States District Court, N.D. California

March 10, 2015


For Drucilla Cooper, Plaintiff: Dow Wakefield Patten, Spencer Freeman Smith, LEAD ATTORNEYS, Damien Berkes Troutman, Smith Patten, San Francisco, CA.

For United Air Lines, Inc., Defendant: M. Michael Cole, Tracy Thompson, LEAD ATTORNEYS, Miller Law Group, San Francisco, CA.


Re: Dkt. No. 73

JACQUELINE SCOTT CORLEY, United States Magistrate Judge.

Plaintiff Drucilla Cooper alleges that Defendant United Air Lines, Inc. (" United" ) (1) violated the Equal Pay Act, 29 U.S.C. § 206, et seq., by paying her less than her male counterparts, (2) demoted her from her position as a Supervisor of Security Officers at the San Francisco Airport maintenance facility in retaliation for complaints she made regarding these pay disparities, and (3) subjected her to discrimination on account of her age and disability. Now pending before the Court is Defendant's Motion for Summary Judgment. (Dkt. No. 73.) Having carefully considered the parties' filings and having had the benefit of oral argument on February 26, 2015, the Court GRANTS Defendant's motion.


Plaintiff was hired by United in 1997 as a security officer following her retirement from the Berkeley Police Department after 15 years of service. In January 2002, Plaintiff was promoted to Supervisor of Security Officers. Plaintiff was one of three supervisors for the security officers at the San Francisco Maintenance Hub, each of whom was assigned to supervise one of the three shifts. During the time period relevant here, Plaintiff supervised the day shift, while William Knight supervised the swing shift and Alex Martin Del Campo supervised the graveyard shift.

In the fall of 2010, United merged with Continental Airlines. Following the merger, many departments went through a Talent Selection or TAS Process. As a result of the TAS Process, some positions were eliminated, others were modified, and still others were largely unchanged. According to Defendant, it was up to each department to determine how the TAS Process would be implemented. (Dkt. No. 73-6 at ¶ 6 & Ex. 1.) Plaintiff's department experienced the TAS Process in the summer of 2011. The decision to institute the TAS Process was made by Darlene Marvin-Nilson who began supervising Plaintiff's department, initially on an interim basis, in the spring of 2011. Ms. Marvin-Nilson took over the position as Senior Manager -- Base Maintenance Support Services when Plaintiff's long-time supervisor Bernard Peterson retired in April 2011. Ms. Marvin-Nilson previously held the position of Senior Manager -- Base Distribution, Warehouse & Logistics, but was not selected to retain the position when that department went through the TAS Process. When Mr. Peterson retired, she applied for and was selected as his replacement.

The same month that Mr. Peterson retired, Plaintiff filed a complaint with Human Resources Associate Sandee Singer regarding a pay disparity between Plaintiff and the two other male supervisors. Mr. Singer forwarded the complaint to Wayne Slaughter, the then Manager of Fair Employment Practices and Diversity. Mr. Slaughter interviewed Plaintiff in connection with her complaint and conducted an investigation of her claims in April and May 2011. (Dkt. No. 73-15 at ¶ ¶ 4-5.) It is undisputed that Plaintiff was paid less than her male counterparts. However, as a result of his investigation, Mr. Slaughter concluded that there were legitimate business reasons for the pay differential; namely, that Employee 1 was an external hire and Employee 2 was previously in a higher paid position within United and took a pay cut when he assumed the Security Supervisor position. ( Id. at ¶ 4.) Mr. Slaughter sent Plaintiff a letter to this effect closing her complaint on May 18, 2011. ( Id. at Ex. 1.) Plaintiff also discussed, or at least mentioned, her concerns regarding the pay disparity to Ms. Marvin-Nilson sometime thereafter.[1]

Also around this same time, Plaintiff requested an accommodation for her sleep apnea disability.[2] Plaintiff asked Ms. Marvin-Nilson about accommodating her disability by restricting her working hours to daylight hours; although Plaintiff currently worked the day shift, she had concerns that Defendant might begin asking supervisors to rotate shifts. (Dkt. No. 75-4, Ex. C at 64:5-12; Dkt. No. 73-2, Ex. 1 at 334:23-335:7.) Ms. Marvin-Nilson responded via an email noting that Plaintiff was currently assigned the day shift and there had not yet been a decision to shift schedules, but that if they decided to implement a schedule which required Plaintiff to work nights, they would revisit her request for accommodation. (Dkt. No. 73-7, Ex. 10.)

As part of the TAS Process, Ms. Marvin-Nilson rewrote the job description for the supervisor of security officers and the position was posted on United's intranet in August 2011. Ms. Marvin-Nilson met with Plaintiff, and her fellow supervisors, Mr. Knight and Mr. Martin Del Campo, to inform them that the position was being posted. Plaintiff contends that she was never informed in writing that she would need to reapply for her job and that she only learned of the application period from a human resources representative who called her to tell she had one day to submit her application. (Dkt. No. 75-1 ¶ 25.) Four individuals applied for the position--the three current supervisors and Russ Faultner. Mr. Faultner was a Manager of the Base Distribution, Warehouse and Logistics Department--the department previously supervised by Ms. Marvin-Nilson--until he was furloughed from this position in July 2011.

Ms. Marvin-Nilson and Adam Calmis, a Senior Manager-Component Base Maintenance for United, conducted the interviews for the supervisor position on August 29, 2011. Mr. Calmis did not know any of the candidates prior to the interviews. The interviews were conducted utilizing a standard interview guide provided by United. (Dkt. No. 73-8 at ¶ 4.) Each applicant was asked the same predetermined set of questions and each interview lasted approximately 30 minutes. ( Id.) At the conclusion of each interview, Mr. Calmis and Ms. Marvin-Nilson discussed each candidate's responses and came up with a consensus score. ( Id. at ¶ 5.) The scoring was performed on a scale of 1-5 with 5 being the highest. ( Id.) Mr. Calmis and Ms. Marvin-Nilson " were in general agreement regarding the scores we assigned to each candidate." ( Id.; Dkt. No. 73-6 at ¶ 16.) Both Mr. Calmis and Ms. Marvin-Nilson agreed that Plaintiff's performance during the interview was poor and she was given the lowest score of all four candidates--a total of 13 out of 45 possible points. (Dkt. No. 73-8 at ¶ 6; Dkt. No. 73-6 at ¶ 17.) The next lowest ranked candidate received a total of 22 points. (Dkt. No. 73-6 at ¶ 17; Ex. 8.) Plaintiff was not selected for the supervisor position. The three supervisor positions were awarded to the two other incumbents, Mr. Knight who was 55, Mr. Martin Del Campo who was 50, and Mr. Faultner who was also 50.

Defendant notified Plaintiff that she was not selected to retain her position by letter dated September 9, 2011. (Dkt. No. 76-1, Ex. A-1.) The letter was titled " Reduction in Force Lay Off Notice." Defendant contends that this is the standard letter that was provided to individuals not selected during the TAS Process. (Dkt. No. 73-6 at ¶ 18.) The letter stated that Plaintiff could either return to her most recent union-represented position or accept a severance package and separate from United. Plaintiff elected to return to her position as a security officer. This demotion resulted in a significant pay cut. Plaintiff remains employed in this position today.


Plaintiff filed a charge with the Equal Employment Opportunity Commission on April 16, 2012. (Dkt. No. 70 ¶ 52.) She was issued a Right to Sue on April 5, 2013 and filed the underlying action within 90 days. Plaintiff filed the governing First Amended Complaint (" FAC" ) in November 2014 asserting four claims (1) retaliation in violation of Title VII, 42 U.S.C. § 2000e, et. seq., (2) disability discrimination in violation of the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § 12101, et seq., (3) age discrimination in violation of the Age Discrimination in Employment Act (" ADEA" ), 29 U.S.C. § 621 et seq., and (4) violation of the Equal Pay Act, 29 U.S.C. § 206. (Dkt. No. 70.) Defendant filed the underlying motion for summary judgment following the close of fact discovery.


Summary judgment is appropriate " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. Proc. 56(a). The Court must draw " all reasonable inferences [and] resolve all factual conflicts in favor of the non-moving party." Murphy v. Schneider Nat'l, Inc., 362 F.3d 1133, 1138 (9th Cir. 2004). A fact is material if it " might affect the outcome of the suit under the governing law," and an issue is genuine if " a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). There can be " no genuine issue as to any material fact" when the moving party shows " a complete failure of proof concerning an essential element of the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

On those claims on which Defendant does not carry the ultimate burden of persuasion (the discrimination and retaliation claims), Defendant, as the moving party, has the burden of producing evidence negating an essential element of each claim on which it seeks judgment or showing that Plaintiff cannot produce evidence sufficient to satisfy her burden of proof at trial. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). On the Equal Pay Act claim, on which Defendant carries the burden of proof at trial on its affirmative defense, Defendant, as the moving party, has the initial burden of producing evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. C.A.R. Transp. Brokerage Co., Inc. v. Darden, 213 F.3d 474, 480 (9th Cir. 2000).

Once Defendant meets that burden, Plaintiff, as the non-moving party, must show that a material factual dispute exists. California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). Allegations alone are not sufficient to meet Plaintiff's burden; instead, Plaintiff must submit admissible evidence. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). Plaintiff's evidence must be such that a reasonable trier of fact could return a verdict in Plaintiff's favor, Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995), and the Court " is not required to comb the record to find some reason to deny a motion for summary judgment," Forsberg v. P. Nw. Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988).


As a preliminary matter, the Court addresses the parties' evidentiary objections to the extent that are relevant to resolution of the motion for summary judgment.

A. Plaintiff's objections

First, Plaintiff objects to the Declaration of Robert F. Donohue, currently the Compensation -- Manager for Defendant as hearsay, not best evidence, and lacking foundation. (Dkt. No. 73-9.) Mr. Donohue was Defendant's Rule 30(b)(6) designee regarding the basis for the disparity in pay between Plaintiff and her male colleagues and was deposed in this capacity. (Dkt. No. 75-4, Ex. D.) As a Rule 30(b)(6) designee, he is not required to have personal knowledge. See Harris v. Vector Mktg. Corp., 656 F.Supp.2d 1128, 1132 (N.D. Cal. 2009) (citing 11--56 Moore's Fed. Prac.--Civ. § 56.14[1] [c] " [t]he testimony of a Rule 30(b)(6) corporate agent deponent may be presented on motion for summary judgment, even though not based on personal knowledge, because a Rule 30(b)(6) witness need not have personal knowledge of the facts to which he or she testifies." ); see also Weinstein v. District of Columbia Housing Auth., 931 F.Supp.2d 178, 186 (D. D.C. 2013) (court considered declaration on motion for summary judgment, although not based on personal knowledge, because declarant was a Rule 30(b)(6) designee).

Further, Mr. Donohue's declaration indicates that he has responsibility for the design and implementation of United's compensation policies and practices, including determining the appropriate salary levels for United's management and administrative employees and the creation of salary bands or ranges. (Dkt. No. 73-9 ¶ 2.) He assists with the " creation and establishment of guidelines that pertain to providing salary raises (or cuts) associated with promotions and demotions within the organization, and the establishment of salary guidelines with respect to the hiring of external candidates." ( Id.) In light of Mr. Donohue's Rule 30(b)(6) designation and his personal knowledge, Plaintiff's objections to the declaration as lacking foundation, hearsay and violating the best evidence rule are overruled.

The Court also rejects Plaintiff's characterization of Mr. Donohue's declaration as a sham because Mr. Donohue did not cite to any document which describes the practices to which he testified. Plaintiff does not cite any rule that a declarant can only testify as to written corporate practices.[3]

Second, Plaintiff objects to Dr. Lewin's expert report. It is unnecessary to consider Plaintiff's objections because the Court did not consider or rely on Dr. Lewin's report.

Third, Plaintiff's objection to the Declaration of Darlene Marvin-Nilson (Dkt. No. 73-6) as a sham is also overruled.[4] The sham declaration rule only applies if " the inconsistency between a party's deposition testimony and subsequent affidavit [is] clear and unambiguous." Van Asdale v. Int'l Game Tech., 577 F.3d 989, 998-99 (9th Cir. 2009). Ms. Marvin-Nilson's testimony and declaration are consistent about Plaintiff having told her of her salary disparity complaints prior to the TAS Process. ( Compare Dkt. No. 75-4 Ex. C at 54:4-15 with Dkt. No. 73-6 at ¶ 22.) It is Plaintiff who testified that she did not recall whether she had such a conversation with Ms. Marvin-Nilson, but then affirmed that she had done so in her declaration. ( Compare Dkt. No. 73-2, Ex. 1 at 244:12-15 with Dkt No. 75-1 at ¶ 12.)

B. Defendant's objections

1) Plaintiff's Request for Judicial Notice

Defendant objects to Plaintiff's Request for Judicial Notice, which asks the Court to take judicial notice of three exhibits. (Dkt. No. 74.) First, Plaintiff seeks judicial notice of print-outs from the website for the California Bureau of Security and Investigative Services. The first print-out purports to be for Russ Faulkner and the second set purports to be exemplar printouts of individuals wholly unrelated to this action whose licenses had lapsed or expired. (Dkt. No. 74, Ex. A & B.) " Documents available through government agency websites are often considered appropriate for judicial notice as documents in the public record not reasonably subject to dispute." Musgrave v. ICC/Marie Callender's Gourmet Products Div., No. 14-CV-02006, 2015 WL 510919, at *3 (N.D. Cal. Feb. 5, 2015) (collecting cases re: same). Here, however, Plaintiff seeks to introduce the documents to show that Mr. Faultner lacked the necessary qualifications for the supervisor position. The documents are inadmissible for this purpose--judicial notice " is limited to the existence and authenticity of the documents rather than allowing notice of the truth of their contents." Smith v. Nw. Tr. Servs., Inc., No. 13-3124, 2014 WL 2439791, at *3 (E.D. Wash. May 30, 2014). Thus, the printouts attached as Exhibits A and B may be judicially noticeable, but they are inadmissible for the purpose urged by Plaintiff. See Galvan v. City of La Habra, No. 12-2103, 2014 WL 1370747, at *2 (C.D. Cal. Apr. 8, 2014) (" there is a distinction between whether the Court may take judicial notice of a fact and whether that fact is admissible." )

Second, Plaintiff asks that the Court take judicial notice of documents filed in Bonillas v. United Air Lines, Inc., No. 12-6574 SBA (N.D. Cal.) (" Bonillas documents" ). A court may " take judicial notice of court filings and other matters of public record" including documents filed under seal which are " readily verifiable." Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 (9th Cir. 2006). Defendant objects that the Bonillas documents lack foundation and constitute inadmissible hearsay. Plaintiff contends that the documents (1) demonstrate the " contemporaneous records that are generated as a matter of course in Talent Selection," (2) " evidence an approval process for subjecting a given position to Talent Selection," and (3) " are designed to help hiring managers determine if their position should go through the talent selection process." (Dkt. No. 75 25:28-26:7.) However, Plaintiff has laid no foundation to this effect.[5] The documents consist of an assortment of emails and a completed form entitled " Job Integration Template," but there is no accompanying declaration authenticating or laying a foundation for these documents. (Dkt. No. 74-1, Ex. C.) Accordingly, the documents are inadmissible as lacking foundation and hearsay. See Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (" We have repeatedly held that unauthenticated documents cannot be considered in a motion for summary judgment." ); Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F.2d 665, 667 (9th Cir. 1980) (" hearsay evidence is inadmissible and may not be considered by this court on review of a summary judgment." )

Plaintiff's request for judicial notice is therefore denied.

2) Defendant's other objections

Defendant's objections that Plaintiff has in numerous places mischaracterized the record or deposition testimony are overruled as the Court is able to view the deposition testimony ...

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