United States District Court, N.D. California, San Jose Division
ORDER GRANTING DEFENDANT'S MOTION TO COMPEL
ARBITRATION AND STAY PROCEEDINGS [RE: ECF 14]
LABSON FREEMAN United States District Judge
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.
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
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.
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.
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.
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.
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.
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.
resigned from her position at Northrop on April 5, 2013.
Id. ¶ 51. She filed this suit on November 28,
2016. See generally Compl.
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.
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
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,
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
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
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.
9. Objection to ¶¶ 6-10, OVERRULED.
10. Objection to ¶ 12, lines 21-23, SUSTAINED, as
11. Objection to ¶¶ 14-17, SUSTAINED, as
12. Objection to ¶ 18, lines 15-17, SUSTAINED, as