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Marchand v. Northrop Grumman Corp.

United States District Court, N.D. California, San Jose Division

June 19, 2017



          BETH LABSON FREEMAN United States District Judge

         Plaintiff Valerie Marchand brings this action against Defendant Northrop Grumman Corporation (“Northrop”), her former employer, alleging (1) gender discrimination in violation of Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e et seq.; (2) retaliation in violation of Title VII; (3) age discrimination in violation of the Age Discrimination in Employment Act of 1984 (“ADEA”), 29 U.S.C. § 621 et seq.; (4) retaliation in violation of the ADEA; (5) gender discrimination in violation of California's Fair Employment and Housing Act (“FEHA”), Cal. Gov't Code § 12940 et seq.; (6) age discrimination in violation of FEHA; (7) retaliation in violation of FEHA; and (8) breach of contract. See generally Compl., ECF 1.

         Northrop moves to compel arbitration of Marchand's non-Title VII claims on the ground that Marchand agreed to arbitration, and to stay the proceedings. Mot., ECF 14. Marchand opposes the motion. Opp'n, ECF 16. For the foregoing reasons, the Court concludes that there is a valid arbitration agreement wherein Marchand agreed to arbitrate all of her non-Title VII claims arising out of her employment with Northrop, and therefore GRANTS the motion with regard to claims 3 through 8, and STAYS the case pending the outcome of that arbitration.

         I. BACKGROUND

         Marchand worked at Northrop from July 2008 to April 5, 2013. Compl. ¶¶ 6, 51. Marchand began as a Traffic Manager in Santa Clara County, California. Id. ¶ 6. After obtaining her Program Manager Certification on Director Jim Suty's advice, Marchand became a Deputy Program Manager (Project Manager IV) in December 2010. Id. ¶¶ 7, 8.

         In January 2011, Kenneth Howell became Marchand's supervisor. Id. ¶ 9. Marchand was the only employee who worked under Howell who was over the age of 50. Id. Marchand alleges that Howell falsified and/or misrepresented her 2011 performance reviews. Id. ¶¶ 10-13; Marchand Decl. ISO Opp'n (“Marchand Decl.”) ¶ 7, ECF 18. She also alleges that because of this, Howell refused to grant her a pay increase despite giving other, younger employees with similar performance ratings a pay increase. Compl. ¶ 14. Marchand further alleges that on January 24, 2012, Director Suty approached her and told her to “find [herself] a new job!” Id. ¶ 19. Suty allegedly could not articulate a reason for this pronouncement in violation of Northrop's written and implied policies and procedures. Id. ¶¶ 19-20.

         On January 25, 2012, Marchand filed a complaint with Human Resources (“HR”), claiming that she was being discriminated against and treated unfairly, and that Howell instructed her to report and record only those hours he had authorized her to work on any given project. Id. ¶¶ 21, 23. In response to her allegations of discrimination, Marchand alleges that Joe Pommier, then-Human Resources Manager at Northrop replied, “Whoa, watch how you treat your words!” Id. ¶ 21; Pommier Decl. ISO Def.'s Mot. (“Pommier Decl. I”), at ¶ 2. Marchand believes that Pommier was trying to dissuade her from pursuing her complaints. She also relayed her complaints to another person in HR, Abigail Cece, and requested a meeting with Suty and Howell for clarification on her performance. Compl. ¶¶ 21, 24. That same month, Marchand also filed an ethics complaint with Northrop's Ethics Officer, Pat Ryan. Id. ¶ 25; Marchand Decl. ¶ 9.

         On March 22, 2012, Marchand sent a complaint to Pamela Burrows in HR about discrimination and unfair treatment, including Director Suty's decision to demote her. Compl. ¶ 29; Marchand Decl. ¶ 10. Later that day, Marchand met with Director Suty, Howell, and HR. Compl. ¶ 29. At that meeting, Marchand alleges that Suty handed her a performance criticism letter and informed her that she was being demoted. Id. A younger male without the Program Manager Certification filled Marchand's job. Id. ¶ 31. On March 28, 2012, Marchand complained about retaliation to HR, which said it would conduct an investigation. Id. ¶ 32. On April 25, 2012, Marchand filed her first complaint of discrimination with the Equal Employment Opportunity Commission (“EEOC”). Id. ¶ 34. Marchand filed a “Request for an Administrative Officer Review” with Northrop's Ethics Unit on April 30, 2012, raising issues of discrimination, retaliation, and disciplinary action not in compliance with Northrop's procedures. Id. ¶ 36; Marchand Decl. ¶ 11 & Ex. 4. In response, Ms. Burrows told Marchand that “several issues” that she raised were “outside of the scope of H103, Dispute Resolution Process, ” and would not be heard as part of the Administrative Officer Review. Marchand Decl. ¶ 11 & Ex. 5.

         On May 8, 2012, Suty placed Marchand on a Performance Improvement Plan (“PIP”). Compl. ¶ 37. Marchand alleges that Suty falsely stated that she volunteered to be placed on the PIP. Id. According to the terms of the PIP, if Marchand did not successfully complete her job requirements during her 60-day trial period, she would be terminated. Id. The formal PIP was signed on June 5, 2012. Id. ¶ 40. Marchand worked for Program Manager Jeffrey Rocha for the remainder of her time at Northrop. Id. ¶¶ 40-51.

         On December 13, 2012, the Administrative Officer (“AO”) for Northrop who had investigated her claims that Marchand's superiors violated Northrop's policies and practices in evaluating her performance, determined that nothing improper had occurred. Id. ¶ 47. In February 2013, Marchand met with Pommier and other company “officials” to “appeal” the AO's decision to take no action in response to her complaints. Id. ¶ 49; Marchand Decl. ¶ 21. Ultimately, this “group” informed Marchand that they agreed that nothing improper occurred and were going to “uphold” the AO's decision. Compl. ¶ 50. In the letter informing Marchand of the decision, dated March 26, 2013, Karen Campbell, Vice President - Marine Systems, also stated that Marchand's claims of discrimination, defamation, and retaliation were “outside the scope of the review available under Corporate Procedure H103.” Marchand Decl. ¶ 22 & Ex. 8, ECF 18; Opp'n 5. That same month, Marchand sent an arbitration demand under Northrop's Arbitration Program to Northrop's Office of General Counsel. Ex. 9 to Marchand Decl., ECF 18. On April 3, 2013, Marchand rescinded her request to use Northrop's arbitration/mediation procedures. Marchand Decl. ¶ 25 & Ex. 10.

         Marchand resigned from her position at Northrop on April 5, 2013. Id. ¶ 51. She filed this suit on November 28, 2016. See generally Compl.


         A. Plaintiff's Objections

         Marchand objects to several paragraphs in the declaration of Joe Pommier in support of Defendant's motion, primarily as lacking foundation, the additional evidence offered by Northrop in support of its Reply Brief, and all factual contentions offered in Pommier's supplemental declaration on the grounds that it is improper for a moving party to introduce new evidence in a reply brief other than those presented in the moving papers. Pl.'s Obj. to Def.'s Evid. ISO Mot. (“Pl.'s Obj. I”), ECF 19; Pl.'s Obj. to Def.'s Reply Evid. (“Pl.'s Obj. II”), ECF 27.

         As to the former, the Court OVERRULES each of Plaintiff's objections, as a proper foundation has been laid-Mr. Pommier served as a Human Resources Manager from 2005 through 2014, where he was responsible for employee relations, implementation of human resources programs, and coordinating updates to policies and procedures. Pommier Decl. I, at ¶ 2.

         As to the latter, although it is improper to raise new issues or submit new facts on reply, Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996), here, the supplemental Pommier declaration and the exhibits thereto simply respond to the assertions raised by Plaintiff in her opposition brief. See Opp'n 8. Moreover, the Court gave Plaintiff an opportunity to respond to the evidence, and the Court has considered Plaintiff's supplemental objections and response to this additional evidence. See Pl.'s Obj. II. Therefore, the court properly may consider this material. See Rodgers v. Fitzgerald, No. 14-CV-00985-DMR, 2016 WL 4658974, at *8 (N.D. Cal. Sept. 7, 2016).

         B. Defendant's Objections

         Northrop objects to various paragraphs in Plaintiff's declaration as hearsay, lacking foundation, or improper legal conclusion and/or opinion. Reply 14-15, ECF 20. The Court rules as follows on each Defendant's objections to Marchand's Declaration:

1. Objection to ¶ 2, lines 6-7, OVERRULED, as statement of a party
2. Objection to ¶ 3, lines 15-16, SUSTAINED as to “had I received those documents, they would have had holes in them, ” as improper opinion. OVERRULED as to the remainder.
3. Objection to ¶ 3, lines 10-11, OVERRULED, as statement of a party.
4. Objection to ¶ 4, lines 19-20, OVERRULED, as statement of a party.
5. Objection to ¶ 5, lines 25-26, OVERRULED, as statement of a party.
6. Objection to ¶ 5, lines 26-27, OVERRULED.
7. Objection to ¶ 5, p. 2, lines 2-5, OVERRULED.
8. N/A
9. Objection to ¶¶ 6-10, OVERRULED.
10. Objection to ¶ 12, lines 21-23, SUSTAINED, as improper opinion.
11. Objection to ¶¶ 14-17, SUSTAINED, as irrelevant.
12. Objection to ΒΆ 18, lines 15-17, SUSTAINED, as improper ...

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