United States District Court, S.D. California
ANTONINA R. GAGLIANO, Plaintiff,
RAYMOND E. MABUS, Jr., Secretary Department of the Navy, Agency, Defendant.
ORDER: (1) GRANTING DEFENDANT'S PARTIAL MOTION
FOR SUMMARY JUDGMENT; AND (2) DIRECTING THE CLERK OF COURT TO
CLOSE THIS CASE (DOC. NO. 78)
ANTHONY J. BATTAGLIA JUDGE
before the Court is Defendant Richard V. Spencer's motion
for partial summary judgment. (Doc. No. 78.) Plaintiff
Antonia R. Gagliano opposes the motion. (Doc. No. 85.) On May
9, 2019, the Court held a hearing on the motion. (Doc. No.
95.) At the hearing, the Court granted the motion with a
written order to follow. (Id.) For the reasons set
forth more clearly below, the Court GRANTS
Defendant's motion for partial summary judgment.
filed an employment discrimination suit on the basis of
gender. (See generally Doc. No. 1.) Plaintiff
alleges that while she was an employee of NAVFAC SW, she was
discriminated against on the basis of her gender when NAVFAC
SW failed to properly classify her past position description.
(Id. at 2.) She further alleges that the failure to
properly classify her position created a hostile work
worked at NAVFAC SW as a contract specialist during the
1990's. (Doc. No. 78-1 Ex. B Gagliano Depo at 57:2-22.)
In 2007, Plaintiff returned to NAVFAC SW as a contract
specialist. (Id. at 58:17-24.) In 2009, Plaintiff
left to work at a different government agency. (Id.
at 59:16-21, 60:24-61:3.) In 2010, Plaintiff again returned
to NAVFAC SW as a supervisory contract specialist, which is a
wage grade of GS-13. (Id. at 61:9-11.) In 2014,
Plaintiff then accepted a promotion at the NAVFAC Naval
Facilities Institute, which was a wage grade of GS-14.
(Id. at 63:25-64:4.)
alleges that NAVFAC SW's arbitrary education requirements
have acted as a bar to the promotion of women overall. (Doc.
No. 1 at 2.) NAVFAC SW requires that the employee possess an
engineering degree for certain upper management level jobs.
(Id.) Plaintiff alleges that since engineers are
predominately male that this creates a predominately male
upper management. (Id.) “[A] ‘Good old
boy' network of male management numbers has arisen and
become self sustaining, because predominately males are
gaining entry at senior level positions.”
(Id.) Accordingly, Plaintiff alleges that the
requirement of an engineering degree acts as a bar to the
promotion of women to these upper level management positions.
December 24, 2018, Plaintiff, then pro se, de-designated her
statistical expert. (Doc. No. 78-1 at 4, Ex. J.) This was
three days before Defendant was scheduled to depose
Plaintiff's expert. (Id., Ex. K.) Neither
Plaintiff nor her expert appeared for the deposition.
February 1, 2019, the Court granted Defendant's motion
for partial summary judgment regarding Plaintiff's
disparate treatment claim. (Doc. No. 77.) On that same day,
Defendant filed this instant motion for partial summary
judgment regarding Plaintiff's disparate impact claims.
(Doc. No. 78.) On February 27, 2019, Plaintiff, now having
obtained counsel, filed a motion for leave to re-designate
her statistical analysis expert. (Doc. No. 83.) On April 11,
2019, Magistrate Judge Andrew G. Schopler denied
Plaintiff's motion for leave to re-designate her
statistical analysis expert. (Doc. No. 91.) No appeal of that
decision to the district court was filed.
judgment is appropriate under Federal Rule of Civil Procedure
56 if the moving party demonstrates the absence of a genuine
issue of material fact and entitlement to judgment as a
matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). A fact is material when, under the governing
substantive law, it could affect the outcome of the case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute is genuine if a reasonable jury could
return a verdict for the nonmoving party. Id.
seeking summary judgment bears the initial burden of
establishing the absence of a genuine issue of material fact.
Celotex Corp., 477 U.S. at 323. The moving party can
satisfy this burden in two ways: (1) by presenting evidence
that negates an essential element of the nonmoving
party's case; or (2) by demonstrating the nonmoving party
failed to establish an essential element of the nonmoving
party's case on which the nonmoving party bears the
burden of proving at trial. Id. at 322-23.
“Disputes over irrelevant or unnecessary facts will not
preclude a grant of summary judgment.” T.W. Elec.
Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809
F.2d 626, 630 (9th Cir. 1987).
the moving party establishes the absence of a genuine issue
of material fact, the burden shifts to the nonmoving party to
set forth facts showing a genuine issue of a disputed fact
remains. Celotex Corp., 477 U.S. at 330. When ruling
on a summary judgment motion, a court must view all
inferences drawn from the underlying facts in the light most
favorable to the nonmoving party. Matsushita Elec. Indus.
Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
VII prohibits policies or practices that are neutral on their
face but have a disproportionally adverse impact on
minorities. 42 U.S.C. § 2000e-2(k); see Ricci v.
DeStefano, 557 U.S. 557, 583 (2009). To establish a
prima facie case of disparate impact the plaintiff must prove
causation. Watson v. Fort Worth Bank and Trust, 487
U.S. 977, 994. To establish causation, “the plaintiff
must offer statistical evidence of a kind and degree
sufficient to show that the practice in question has caused
the exclusion of applicants for jobs or promotions because of
their membership in a protected group.” Id.
The Ninth Circuit has “recognized the necessity of
statistical evidence in disparate impact cases.”
Budnick v. Town of Carefree, 518 F.3d 1109, 1118
(9th Cir. 2008) (citing Pottenger v. Potlatch Corp.,
329 F.3d 740, 749 (9th Cir. 2003)). Furthermore, “[a]
plaintiff who fails to allege facts at the pleading ...