The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 CAMERON GAZAWAY, et al., Case No. 23-cv-04781-NW
8 Plaintiffs,
ORDER DISMISSING ACTION FOR
9 v. LACK OF SUBJECT MATTER
JURISDICTION AND TERMINATING
10 JARED ISAACMAN, ADMINISTRATOR, AS MOOT DEFENDANT’S MOTION
NATIONAL AERONAUTICS AND FOR SUMMARY JUDGMENT AND
11 SPACE ADMINISTRATION, DAUBERT MOTION AND MOTION TO
EXCLUDE
Defendant.
12
Re: ECF Nos. 165, 166
13
14 Plaintiffs Cameron Gazaway and Robert Wilson allege that Defendant Jared Isaacman,
15 Administrator for the National Aeronautics and Space Administration (“NASA”), discriminated
16 against them on account of their age, race, and religion, and retaliated against them when they
17 complained of that discrimination. On March 20, 2026, NASA filed a motion for summary
18 judgment, as well as a Daubert motion and motion to exclude Plaintiffs’ experts. ECF No. 166
19 (“MSJ”); ECF No. 165 (“Daubert Mot.”).1
20 On May 15, 2026, the Court ordered supplemental briefing on the question of whether the
21 Court had subject matter jurisdiction over the action. ECF No. 177; see ECF No. 178 (“NASA
22 Suppl. Br.”); ECF No. 183 (“Pls. Suppl. Br.”).2
23 On June 10, 2026, the Court heard oral argument on the issue of subject matter
24 jurisdiction. ECF No. 186. Having considered the parties’ arguments and the relevant legal
25
1 Record citations are to material in the Electronic Case File (“ECF”); unless otherwise noted,
26
pinpoint citations are to the ECF-generated page numbers at the top of documents.
27
2 The Court struck Plaintiffs’ first supplemental brief, as Plaintiffs exceeded the five-page limit
1 authority, the Court DISMISSES this action for lack of subject matter jurisdiction and
2 TERMINATES AS MOOT NASA’s motion for summary judgment and Daubert motion and
3 motion to exclude Plaintiffs’ experts.
4 I. BACKGROUND3
5 A. Fire Protection Services at Ames Research Center
6 NASA’s Ames Research Center (“ARC”) is a research and development center located at
7 Moffett Airfield near Mountain View, California. NASA contracts with private companies to
8 provide security services, including fire protection services, at ARC. On July 23, 2015, NASA
9 awarded a contract to American Paragon Protective Services (“APPS”) to provide security
10 services at ARC. ECF No. 166-4 (APPS contract). APPS in turn subcontracted fire protection
11 services for ARC to Fiore Industries, Inc.
12 B. Performance Work Statement
13 The APPS contract incorporates a Performance Work Statement (“PWS”). ECF No. 166-5
14 (PWS). Under the PWS,
15 [t]he Contractor shall provide all labor, materials, supervision,
equipment, transportation, management, except as otherwise
16 specified in the contract and the Contractor shall use its best judgment
regarding determination of efficient and appropriate staffing levels to
17 ensure that the facility is covered on a 24 hour/7 day per week basis
necessary to successfully perform the requirements set forth herein.
18
Id. at 5; see id. at 6 (“[T]he Contractor shall be responsible for performing the day-to-day
19
operations of ARC’s protective services as required by the PWS, 7 days per week and 24 hours
20
per day.”).
21
Section 8.0 of the PWS concerns Fire Services. Id. at 44–56; see id. at 44 (“Fire Services
22
encompasses the protection of people, property, facilities, and assets at ARC in compliance with
23
existing or future federal, state, and local mutual aid arrangements. Protection may include
24
structural, Aircraft Rescue Firefighting (ARFF), hazmat, medical, and tactical rescue.”). As a
25
general matter,
26
27
The Contractor shall:
1
1. Provide a professionally managed, comprehensive fire rescue
2 services program that complies with the following: NASA-STD-
8719.11, NASA Safety Standard for Fire Protection; National Fire
3 Protection Association (NFPA) codes and standards; state standards
and regulations as applicable; and NPR 8715.3, NASA General
4 Safety Program Requirements.
5 2. Develop, maintain, and implement a Fire Protection Program Plan
in accordance with Section J.1 (a), Attachment 3, CDRL Report 16.
6
3. Operate and maintain Fire Services vehicles, which include two
7 (2) engines, one (1) rescue vehicle, one (1) Quint, one (1) P-4 ARFF
vehicle, two (2) T-1000 ARFF vehicles, one (1) T-3000 ARFF
8 vehicle, and associated trailers.
9 4. Provide an appropriately trained and qualified staff consisting of a
minimum of thirteen (13) Fire Services employees to provide the
10 work identified in this Section, including 8.0 through 8.6. Note: If
additional staff are necessary, then a separate task order will be
11 utilized.
12 Id. at 44–45. The PWS also includes the Contractor’s specific responsibilities regarding fire
13 operations and firefighting, aircraft rescue and firefighting, tactical rescue, hazardous material
14 emergency response support, fire services training and certifications, and fire prevention. Id.
15 at 45–56, 80–83.
16 Appendix M lists the minimum personnel qualifications for firefighters. Id. at 80–83.
17 Among other “basic qualifications that apply to all individuals employed or being considered for
18 employment as a firefighter[,]” battalion chiefs are required to have an associate’s degree in fire
19 science. Id. at 80, 83.
20 C. NASA Fire Services Contract
21 In 2020, NASA announced that it would award a regional NASA Fire Services Contract
22 (“NFSC”) that would cover several NASA locations, including ARC. The NSFC would become
23 effective at ARC on October 1, 2022.4
24
4 The parties each reference and attach the NFSC provisions, as relevant to their respective filings.
25
ECF No. 166-8 (Forhy Decl.) ¶ 4 (“A copy of the NFSC, including its Performance Work
Statement, is attached as Exhibit A.”); ECF No. 166-9 (NFSC attached as Exhibit A to the Forhy
26
Declaration); Suppl. Wilson Decl. ¶ 4 (“A true and correct copy of the salary ranges set by NASA
for a Battalion Chief Operations (my position) set forth in the NFSC is attached hereto as Exhibit
27
4.”); ECF No. 183-2 at 18–25 (excerpts of the NFSC attached as Exhibit 4 to the Supplemental
1 The NFSC consisted of a main document, a PWS, and PWS annexes that were specific to
2 each location. On April 30, 2021, NASA published a draft NFSC, including PWS annexes. The
3 PWS annex specific to ARC required battalion chiefs to have an “Associate [sic] degree or higher
4 in Fire Science.” ECF No. 166-9 at 128. On June 4, 2021, NASA published an updated draft
5 NFCS and opened it up for bidding. NASA awarded the NSFC to Chenega Global Services, LLC
6 in October 2021. Chenega subcontracted fire protection services to Fiore.
7 D. Plaintiffs5
8 1. Gazaway
9 Gazaway “is an African American man born in 1969”; he is a Messianic Christian.
10 Gazaway Decl. ¶¶ 8, 11. In 1994, Gazaway “was hired as a Firefighter by a predecessor of
11 Fiore[,]” and he was promoted to battalion chief in 2001.6 Id. at ¶ 3. In 2009, Gazaway earned an
12 AA degree in Business, with coursework in Fire Sciences.
13 In a letter dated May 18, 2017, Fiore approved Gazaway’s “request for a religious
14 accommodation with certain restrictions[.]” ECF No. 168-2 at 29; id. at 30 (“We are pleased that
15 we are able to accommodate your request while complying with the OSHA and PWS
16 requirements.”); Gazaway Decl. ¶ 11 (authenticating the “copy of the religious accommodation
17 provided to me by Fiore Industries, Inc.”). The letter is signed by Human Resources Manager
18
No. 166-9 at 2 (bearing Bates number NASA-001772) with ECF No. 183-2 at 18 (bearing Bates
19
number NASA-00184912). The two exhibits appear to be different productions of the NFSC, and
portions of the excerpts attached as Exhibit 4 to the Wilson Declaration list prices for services and
20
hourly rates that are not included in Exhibit A to the Forhy Declaration. Compare ECF No. 183-2
at 23–25 with ECF No. 166-9. The Court also notes that Plaintiffs redacted portions of Exhibit 4
21
that show the total price of the services but did so without filing a motion to seal, in violation of
Civil Local Rule 79-5. ECF No. 183-2 at 23–25; Civ. L.R. 79-5(b) (“A party must file a motion to
22
seal a document at the same time that the party submits the document.”). There is nothing to
suggest that a federal statute permits filing the document under seal, nor has the document been
23
the subject of a prior motion to seal. See Civ. L.R. 79-5(b) (“A party need not file a motion to seal
if a federal statute or a prior court order in the same case expressly authorizes the party to file
24
certain documents (or portions of documents) under seal.”).
25
5 Citations to the Gazaway Declaration refer to pages 1–4 of ECF No. 168-2, and citations to the
Wilson Declaration refer to pages 1–4 of ECF No. 168-3.
26
6 Gazaway declares that, “[o]n February 1, 1994, I was hired for my dream job as a Firefighter by
27
a predecessor of Fiore with joint employer NASA.” Gazaway Decl. ¶ 3. Whether NASA is
1 Emily Miera and is printed on Fiore letterhead. ECF No. 168-2 at 29–30.
2 Specifically, Fiore allowed Gazaway to grow a beard of “no more than 2 inches from the
3 chin.” Id. But “[d]ue to unusual circumstances” in which Gazaway may “be required to don a
4 SCBA [self-contained breathing apparatus],” Fiore was “not able to withdraw the PWS
5 requirement for the annual fit testing per the OSHA 1910.134 regulation.” Id.; see 28 C.F.R.
6 § 1910.134(b) (“Fit test means the use of a protocol to qualitatively or quantitatively evaluate the
7 fit of a respirator on an individual.”); id. (“Self-contained breathing apparatus (SCBA) means an
8 atmosphere-supplying respirator for which the breathing air source is designed to be carried by the
9 user.”). Gazaway was therefore “required to shave prior to [his] fit test each year.” ECF No. 168-
10 2 at 29.
11 Fiore also “grant[ed] [Gazaway’s] request to wear fringes” “if tucked into clothing when in
12 uniform to maintain a professional appearance and in accordance with the PWS required uniform
13 standard in compliance with NASA policy.” Id. at 29–30.
14 In addition, Fiori allowed Gazaway to “trade shifts for High Holy Days and Shabbat per
15 the current shift trade policy” and could “use vacation when . . . unable to arrange for a shift trade
16 provided it [did] not interfere with mission needs, such as mandatory training that cannot be done
17 on another day.” Id. at 30.
18 2. Wilson
19 Wilson is “a white man, born in 1969.” Wilson Decl. ¶ 7. He does not practice any
20 religion. ECF No. 166-17 at 14:1–2. Like Gazaway, Wilson “was hired by a predecessor of
21 Fiore” in 1994.7 Wilson Decl. ¶ 3. In 1999, Wilson was promoted to battalion chief. Wilson
22 Decl. ¶ 3. In 2009, Wilson earned an AA in General Studies, with coursework in Fire Sciences.
23 Id.
24 E. Allegations of Discrimination and Retaliation
25 Plaintiffs worked together at ARC’s Fire Department. It is undisputed that they reported to
26
27
7 Wilson declares that “[o]n February 1, 1994, I was hired as a Firefighter by predecessor of Fiore
1 Fire Chief William Bonner, a Fiore employee. ECF No. 168-2 at 15, 16; ECF No. 168-3 at 14, 15.
2 Plaintiffs contend Keith Siuda, a NASA employee, was also their direct supervisor.8
3 Between 2018 and 2022, Plaintiffs allegedly experienced discrimination, harassment, and
4 retaliation on account of their age, race, and religion—primarily by Bonner and Siuda. Plaintiffs
5 complained of this conduct to Congresswoman Anna Eschoo, Fiore, NASA management, and
6 NASA’s Office of Diversity and Equal Opportunity (“ODEO”).
7 Plaintiffs claim that Siuda added into the NSFC the requirement that battalion chiefs have
8 an associate’s degree in fire science knowing that Plaintiffs did not have that particular degree,
9 enforced that educational requirement despite never having done so before, and declined to
10 provide Plaintiffs with a waiver or an extension of the October 1, 2022 compliance deadline, even
11 though Plaintiffs had enrolled in a university to obtain that additional degree.
12 Plaintiffs were terminated on September 30, 2022. Plaintiffs allege that their termination
13 was a retaliatory response to their complaints of discrimination, harassment, and retaliation.
14 F. Procedural History
15 Plaintiffs initiated this action on September 18, 2023, and filed a first amended complaint
16 (“FAC”) on December 18, 2023, asserting claims of: age, race, and religious discrimination;
17 association discrimination; retaliation; and wrongful termination. See ECF Nos. 1, 43. After the
18 Court dismissed the FAC with leave to amend, Plaintiffs filed their second amended complaint
19 (“SAC”). ECF Nos. 80, 84. The SAC asserted claims for (1) Age Discrimination in Violation of
20 the Age Discrimination in Employment Act (“ADEA”) and Title VII; (2) Race Discrimination in
21 violation of Title VII; (3) Hostile Work Environment and Harassment in Violation of Title VII;
22
23
8 Siuda’s exact title is unclear. Plaintiffs identify Siuda in various documents as a “Manager, Fire
Protection POC”; “Emergency Manager, Contracting Officer Representative [‘COR’] and Fire
24
Marshall”; “Fire Protection Director at NASA/Assistant COR”; “COR for Protective Service”; and
“Supervisor Fire Chief.” ECF No. 166-13 at 8; Gazaway Decl. ¶ 12; ECF No. 168-2 at 15, 16;
25
Wilson Decl. ¶ 10; ECF No. 168-3 at 14, 15. A February 9, 2009 letter from Siuda identifies his
title as “COTR” (contracting officer’s technical representative). ECF No. 168-2. Siuda’s
26
signature block in a February 10, 2020 email identifies him as “Fire Marshal/AHJ [¶] Emergency
Manager [¶] Protective Services COR.” ECF No. 183-1 at 19. To the extent Siuda’s title changed
27
during the events relevant to this case, the record is insufficiently clear as to when such changes
1 (4) Retaliation in Violation of Title VII; and, (5) Wrongful Termination in Violation of Title VII.
2 ECF No. 84 ¶¶ 64–121.
3 NASA moved to dismiss the SAC for lack of subject matter jurisdiction, among other
4 things. ECF No. 86. Specifically, NASA argued that Plaintiffs failed to plead facts that NASA is
5 a joint employer and, as such, NASA is entitled to sovereign immunity against claims from non-
6 employees such as Plaintiffs. Id. at 13–14. On April 11, 2025, the Court found that Plaintiffs had
7 adequately pleaded facts that NASA is a joint employer. ECF No. 112 at 4–8. The Court
8 therefore denied NASA’s motion to dismiss for lack of jurisdiction, but did so “without prejudice
9 to renew it as a factual, and not a facial attack, or to address the issue in a motion for summary
10 judgment.” Id. at 8. The Court otherwise granted NASA’s motion to dismiss the Title VII claims
11 with leave to amend. Id. at 9–12.
12 Plaintiffs filed the operative third amended complaint (“TAC”) on May 2, 2025. ECF
13 No. 117. The TAC asserts six claims: (1) Age Discrimination in Violation of ADEA; (2) Race
14 Discrimination in violation of Title VII; (3) Religious Discrimination in violation of Title VII;
15 (4) Hostile Work Environment and Harassment in Violation of Title VII; (5) Retaliation in
16 Violation of Title VII; and (6) Wrongful Termination in Violation of Title VII. Id. ¶¶ 68–143.
17 II. SUBJECT MATTER JURISDICTION
18 The Court may hear evidence and make factual findings to rule on a question of subject
19 matter jurisdiction prior to trial, so long as “the jurisdictional disputes [are] not intertwined with
20 the merits of the claim . . . .” See Friends of the Earth v. Sanderson Farms, Inc., 992 F.3d 939,
21 944 (9th Cir. 2021) (“[B]ecause the jurisdictional disputes were not intertwined with the merits of
22 the claim and because ‘the existence of jurisdiction turn[ed] on disputed factual issues,’ it fell to
23 the district court to ‘resolve those factual disputes itself.’”) (quoting Leite v. Crane Co., 749 F.3d
24 1117, 1121–22 (9th Cir. 2014); first brackets added); Acevedo v. C & S Plaza Ltd. Liab. Co., No.
25 20-56318, 2021 WL 4938124, at *1 (9th Cir. Oct. 22, 2021) (“Where a jurisdictional issue is
26 separable from the merits of a case, a court applies Rule 12(b)(1)’s standards and is not restricted
27 to the face of the pleadings, but may review any evidence, such as affidavits and testimony, and
1 824 F.2d 799, 803 (9th Cir. 1987). The Ninth Circuit has articulated several examples of when
2 “merits issues and jurisdictional issues are intertwined” such “that the district court may not
3 resolve disputed factual issues on a factual challenge to jurisdiction,” including when: (1) “a
4 party’s right to recovery rests upon the interpretation of a federal statute that provides both the
5 basis for the court’s subject matter jurisdiction and the plaintiff’s claim for relief”; (2) “the claim
6 at issue arises under the Constitution”; and (3) “in the context of a motion to remand to state court
7 a case involving federal-officer removal jurisdiction,” there exists “a factual dispute material to
8 federal-officer jurisdiction that is intertwined with an element of the plaintiff’s claim.” Bowen v.
9 Energizer Holdings, Inc., 118 F.4th 1134, 1143 (9th Cir. 2024) (citation modified).
10 None of these situations are present in this case. Indeed, evidence as to whether NASA
11 and Fiore are joint employers is separate and distinct from evidence of discrimination. The Court
12 may therefore make factual findings to resolve the subject matter jurisdiction dispute.
13 A. Legal Standards
14 1. Title VII
15 Unless they consent to waive immunity, the United States and its agencies are immune
16 from suit. Ghannoum v. Wilkie, No. CV 18-10294-CJC (SSx), 2019 WL 2970838, at *2 (C.D.
17 Cal. Apr. 16, 2019) (citing Lehman v. Nakshian, 453 U.S. 156, 160 (1981)). “Title VII includes
18 an express waiver of sovereign immunity in suits against the government for discriminatory
19 employment practices.” Ghannoum, 2019 WL 2970838, at *2 (citing 42 U.S.C. §§ 2000e-5(f),
20 2000e-16).
21 Plaintiffs generally may only assert Title VII claims against their employers. See 42
22 U.S.C. § 2000e(b); U.S. Equal Emp. Opportunity Comm’n v. Glob. Horizons, Inc., 915 F.3d 631,
23 633 (9th Cir. 2019) (“Title VII imposes liability for discrimination on ‘employer[s].’”) (brackets in
24 the original). But Title VII “recognizes that two entities may simultaneously share control over
25 the terms and conditions of employment, such that both should be liable for discrimination relating
26 to those terms and conditions.” Global Horizons, 915 F.3d at 637. In Global Horizons, the Ninth
27 Circuit adopted a common law agency test to determine whether an entity is a joint employer. 915
1 Mar. 4, 2025) (applying the Global Horizons test to determine whether federal agencies jointly
2 employed the plaintiff together with a private third party). In that test, the “principal guidepost is
3 the element of control—that is, the extent of control that one may exercise over the details of the
4 work of the other.” Global Horizons, 915 F.3d at 638–39 (internal citations omitted). The non-
5 exhaustive list of factors to consider under this common law control test include:
6 “the skill required; the source of the instrumentalities and tools; the
location of the work; the duration of the relationship between the
7 parties; whether the hiring party has the right to assign additional
projects to the hired party; the extent of the hired party’s discretion
8 over when and how long to work; the method of payment; the hired
party’s role in hiring and paying assistants; whether the work is part
9 of the regular business of the hiring party; whether the hiring party is
in business; the provision of employee benefits; and the tax treatment
10 of the hired party.”
11 Id. at 638 (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323–24 (1992)). “There is
12 ‘no shorthand formula’ for determining whether an employment relationship exists, so ‘all of the
13 incidents of the relationship must be assessed and weighed with no one factor being decisive.’”
14 Id. (quoting Darden, 503 U.S. at 324).
15 2. ADEA
16 ADEA prohibits age discrimination in federal employment. 29 U.S.C. § 633a. Under
17 ADEA, “[t]wo or more employers may be considered ‘joint employers’ if both employers control
18 the terms and conditions of employment of the employee.” Wynn v. Nat'l Broad. Co., 234 F.
19 Supp. 2d 1067, 1093 (C.D. Cal. 2002), dismissed, No. CV00-11248-SVW(RZX), 2002 WL
20 31681865 (C.D. Cal. Mar. 6, 2002). To determine whether two employing entities are joint
21 employers for purposes of ADEA, the Ninth Circuit courts consider the following factors: “(1) the
22 nature and degree of control over the employees; (2) day-to-day supervision, including discipline;
23 (3) authority to hire and fire the employee and set conditions of employment; (4) power to control
24 pay rates or methods of payment; and (5) control of the employee records, including payroll.’ Id.
25 (citing Torres-Lopez v. May, 111 F.3d 633, 639–40 (9th Cir. 1997)) (the “Torres-Lopez factors”).
26 B. Discussion
27 Given the similarities between the Title VII and ADEA joint employer tests, the Court
1 such that it has waived sovereign immunity. The evidence instead shows that, while NASA took
2 steps to ensure that Fiore was upholding the terms of the contract, it was Fiore that controlled the
3 details of Plaintiffs’ work.
4 1. Hiring and Termination of Fire Services Staff9
5 The PWS makes the contractor—that is, APPS or Fiore—responsible for employing Fire
6 Services personnel at ARC. Specifically, “[t]he Contractor shall: . . . [p]rovide an appropriately
7 trained and qualified staff consisting of a minimum of thirteen (13) Fire Services employees to
8 provide the work identified in this Section, including 8.0 through 8.6.” ECF No. 166-5 at 44–45.
9 With respect to Fire Operations and Firefighting,
10 [t]he Contractor shall:
. . .
11
3. Provide qualified Fire Services Operations personnel 24/7 on
12 NASA ARC/Moffett Field.
4. Provide staffing on Emergency Response Vehicles (ERV) for
13 structural and ARFF emergency incidents sufficient to ensure safe
and effective response.
14
5. Provide firefighters who are a minimum of 21 years of age.
15 6. Provide minimum staffing on cross staffed vehicles. (Examples:
Engine, ARFF, Special Operations, and Hazmat Vehicles).
16
. . .
17 34. Ensure that rapid intervention teams (RIT) have been established
for all responses to IDLH environments.
18
. . .
19 58. Provide shift staffing and a rapid intervention crew for emergency
back-up during interior fire ground operations when they exceed
20 initial response guidelines.
21 Id. at 45, 48, 51. While these terms outline the general requirements for employees and how
22 staffing should be allocated, nothing in the PWS suggests that NASA would provide personnel or
23 be involved in the hiring of Fire Services personnel.
24 Plaintiffs argue that “NASA ‘could identify cost overruns’ and could ‘order additional
25
26
9 At the hearing, the Court noted that neither party submitted Plaintiffs’ employment agreements
with their briefs and asked whether Plaintiffs had signed such an agreement with Fiore or NASA.
27
Plaintiffs represented that Fiore may have issued a notice of employment, but that there otherwise
1 services’ which means NASA had ultimate control over staffing the Fire Department.” Pls. Suppl.
2 Br. at 5 (quoting ECF No. 178-1 (“Suppl. Bala Decl.”) ¶ 12); see Suppl. Bala Decl. ¶ 12 (“NASA
3 could tell the prime contractor if the contract was not being satisfied, and it could identify cost
4 overruns. NASA could also choose to order additional services, if necessary, from the contractor.
5 But NASA did not have the authority to determine Fiore employees’ promotions, salary, medical
6 benefits, or other benefits. Fiore had discretion to determine these things.”). Plaintiffs also rely
7 on a November 27, 2020 email from Fire Chief Bonner stating that “[r]eductions in staffing need
8 to be approved by NASA (Keith or Lynn) . . .” ECF No. 183-2 at 27.
9 These documents show that NASA had to approve modifications to the terms of the APPS
10 contract and the PWS, which is consistent with general principles of contract law. See Doe v. X
11 Corp., No. 25-CV-07597-TLT, 2025 WL 3500543, at *5 (N.D. Cal. Nov. 6, 2025) (Under
12 California law, “[m]odifications to [an] existing contract require the same ‘assent’ for a revision
13 that the existing contract required; consent from both parties for the modifications must be
14 obtained.”) (citing Douglas v. U.S. Dist. Ct. for Cent. Dist. of California, 495 F.3d 1062, 1066 (9th
15 Cir. 2007)); Douglas, 495 F.3d at 1066 (“[A] party can’t unilaterally change the terms of a
16 contract; it must obtain the other party’s consent before doing so.”). It does not support Plaintiffs’
17 contention that NASA controlled staffing, particularly where the record lacks evidence that NASA
18 was involved in the specific aspects of staffing, such as interviewing potential candidates or
19 determining who to hire.
20 Plaintiffs also fail to cite evidence in support of their argument that “NASA had discretion to re-
21 hire or fire Plaintiffs.” Pls. Suppl. Br. at 5. Plaintiffs argue that, “[i]n 2022, Suida recommended
22 Plaintiffs’ termination before October 1, 2022, and admitted that Fiore refused to terminate
23 Plaintiffs stating, ‘Nizar who is Fiore’s HR rep and he pretty much said they will let them start on
24 1 October with that letter and will not do anything until NASA says they are not qualified.’” Id.
25 (quoting ECF No. 183-3 at 58). Plaintiffs mischaracterize Siuda’s email.
26 Siuda writes,
27 As far as the BC’s go, the two guys are supposed to be getting a letter
who is Fiore’s HR rep and he pretty much said they will let them start
1 on 1 October with that letter and will not do anything until NASA
says they are not qualified. I told him I would consider them out of
2 compliance with the requirements. I said are you guys afraid of a
lawsuit and he did not admit it directly but admitted they wanted us
3 to make the decision. Not happy they are putting us in that position.
Do we want to have a meeting ahead of time or wait until October
4 hits? I am not sure what they will do if NASA is afraid to take action,
it happened here with the beard issue. We kill ourselves every time
5 so I have concerns. To me it is cut and dried they are not qualified,
even with a letter.
6
I believe we should wait until 1 October and levy a fine right off as
7 they know the ramifications as we do not know what they will do
between now and then, although they are not advertising a BC’s
8 position yet.
9 ECF No. 183-3 at 58.
10 This email says nothing about terminating Plaintiffs for their alleged lack of
11 qualifications.10 At most, Siuda recommends fining Fiore for failing to comply with the NFSC,
12 but he does not suggest that NASA take action against Plaintiffs directly. Ensuring that Fiore
13 performs under the NSFC is not tantamount to NASA having the ability to fire Plaintiffs. See also
14 ECF No. 183-3 (Siuda Dep.) at 8 (“So it was my responsibility to make sure the contract
15 requirements were fulfilled.”).
16 In a footnote to their amended supplemental brief, Plaintiffs’ contention that “NASA had
17 the authority to terminate any Fire Department employee (codified within the Fiore and the IAFF
18 [International Association of Fire Fighters] in their CBA)” also lacks evidentiary support. Pls.
19 Suppl. Br. at 5 n.1. Plaintiffs recognize that, as Battalion Chiefs, they were not part of the union
20 and were therefore not subject to the CBA; yet Plaintiffs nevertheless assert that the terms of the
21 CBA applied to them. Suppl. Gazaway Decl. ¶ 25; Suppl. Wilson Decl. ¶ 22.11 Ultimately,
22 whether the CBA applied to Plaintiffs does not matter, because the plain language of the CBA
23
24
10 Although Plaintiffs are not named in this email—which, as submitted, appears to be only one
email in a longer thread—Siuda’s statements that “they have enough credits for a Bachelors in
25
Fire Science” and “they are not qualified” presumably refer to Plaintiffs, and “they will let them
start on 1 October” means that Fiore will let Plaintiffs start on October 1. And while this email
26
was an exhibit to Siuda’s deposition, in Plaintiffs’ submissions to the Court they did not include
Siuda’s testimony regarding the email.
27
1 does not show that NASA could terminate Fire Services personnel.
2 Section 5.2 of the CBA between Fiore and The Moffet Field Firefighters Association IAFF
3 Local I 79 at NASA/Ames Research Center provides that:
4 If the contracting agency directs that a specific employee be removed
from the contract; [sic] any such action directed may be undertaken
5 by the Company and shall not be subject to the grievance or
arbitration procedures of this Agreement. In the event that the
6 contracting agency expressly directs the removal of a contract
employee, the Company agrees to cooperate with the Association by
7 providing it with all relevant information concerning the incident.
8 ECF No. 183-2 at 16. Plaintiffs do not explain, even if they were subject to the CBA, why their
9 removal from the contract would amount to termination of employment. At the hearing, the Court
10 asked whether Fiore could move a firefighter, who had been removed from the contract, to another
11 site at which Fiore provides fire protection services—in other words, whether a person remains a
12 Fiore employee even if he or she is unable to work at ARC. According to Plaintiffs’ counsel,
13 Fiore’s only fire services contract was with NASA, such that removal from the contract meant that
14 the employee had no other place to work. Plaintiffs provided no evidence in the record to support
15 this position. Plaintiffs also notably did not say that a firefighter’s removal from the NASA
16 contract meant that Fiore could not transfer that firefighter to a different location, had one been
17 available. Fiore’s inability to place an employee at a different site is not the equivalent of NASA
18 having the power to terminate employment.
19 Because there is no evidence that NASA had the power to hire or terminate fire services
20 staff, this factor weighs against joint employment.
21 2. Payment and Benefits
22 It is undisputed that Fiore issued Plaintiffs’ paychecks; withheld federal, state, and Social
23 Security taxes; issued Plaintiffs’ W-2 forms; paid for Plaintiffs’ insurance benefits; and provided
24 Plaintiffs’ retirement accounts. Pls. Suppl. Br. at 5 (“Plaintiffs do not dispute that their salary,
25 medical benefits, and taxes were paid by joint employer Fiore.”); ECF No. 168-2 at 7–8 (Gazaway
26 statement of earnings); id. at 18 (Gazaway ODEO affidavit, “Did the Agency provide you
27 insurance? No, Fiore provided insurance.”); id. at 19 (Gazaway ODEO affidavit, “Who (Agency
1 Fiore”); ECF No. 178-6 (Gazaway W-2); ECF No. 178-8 (Gazaway 401k statement); ECF
2 No. 168-3 at 11–12 (Wilson statement of earnings); id. at 18 (Wilson ODEO affidavit, “Did the
3 Agency provide you insurance? no”); id. (Wilson ODEO affidavit, “Who (Agency or contracting
4 company) withheld federal, state and Social Security taxes from your paycheck? Fiore”); ECF
5 No. 178-7 (Wilson W-2); ECF No. 178-9 (Wilson 401k statement); Suppl. Bala Decl. ¶ 12
6 (“NASA did not have the authority to determine Fiore employees’ promotions, salary, medical
7 benefits, or other benefits. Fiore had discretion to determine these things.”).
8 Plaintiffs argue that “NASA determined the hourly rate and salary range for all positions
9 including BCs [battalion chiefs], and paid Fiore, through the general contractor, for those costs.”
10 Pls. Suppl. Br. at 5 (citing ECF No. 183-2 (NFSC excerpts) at 18–25; additional citations omitted).
11 Plaintiffs declare that “NASA, in the NFSC, set wages and salaries for all positions under the
12 contract.” Suppl. Gazaway Decl. ¶ 26; Suppl. Wilson Decl. ¶ 23. The record does not support this
13 assertion, and Plaintiffs do not explain how they know that NASA set the wages and salaries.
14 Absent evidence showing how the prices for services and hourly rates were determined—i.e.,
15 whether they were unilaterally set by NASA as Plaintiffs contend, or if they are the result of
16 negotiations with Chenega as part of the bidding process—the fact that hourly rates and salaries
17 are set in the NSFC, in and of itself, is not indicative of NASA’s control.
18 Given the lack of evidence of NASA’s control payment and benefits, this factor weighs
19 against finding NASA is a joint employer.
20 3. Personnel Actions
21 Fiore also approved personnel actions—including salary increases, leave requests, and
22 Gazaway’s religious exemption—and memorialized such actions in documents bearing Fiore
23 letterhead and signed by Fiore employees (for example Fiore’s Fire Chief William Bonner, Fiore’s
24 Program Manager Elaine Harlan, Fiore’s corporate executive Bill Miera, or Fiore’s HR employee
25 Susan Marguez).12 ECF No. 168-2 at 6 (Gazaway personnel action form); id. at 18 (Gazaway
26
12 It is undisputed that Bonner is a Fiore employee. See ECF No. 178-4 at 3 (Bonner EEOC
27
affidavit, “Identify your position, title, grade and series. Response: Fire Chief (Fiori employee)”);
1 ODEO affidavit, “To whom did you submit leave requests? Chief Bonner”; leave “covered by
2 Fiore”); id. at 29–30 (religious accommodation letter); ECF No. 168-3 at 10 (Wilson personnel
3 action form); id. at 18 (Wilson ODEO affidavit, “To whom did you submit leave requests? Chief
4 Bonner – Fiore”); Gazaway Decl. ¶ 11 (“A true and correct copy of the religious accommodation
5 provided to me by Fiore Industries, Inc. is attached . . .”). Moreover, the May 18, 2017 letter
6 approving Gazaway’s religious accommodation states that Gazaway should “[p]lease feel free to
7 contact [Fiore’s] Human Resources if you have any questions or concerns.” ECF No. 168-2 at 30.
8 The letter does not direct Gazaway to submit inquiries to NASA or otherwise suggest that it was
9 NASA who ultimately approved Gazaway’s accommodation.
10 NASA’s lack of involvement in these personnel actions further indicates that NASA is not
11 a joint employer.
12 4. Training and Qualifications
13 Plaintiffs argue that, as additional evidence of a joint employer relationship, “NASA paid
14 for Plaintiffs’ associate’s degrees (which Suida admitted), coursework, and all training throughout
15 their career.” Pls. Suppl. Br. at 5. At the hearing, the Court sought clarification from Plaintiffs as
16 to how NASA paid for Plaintiffs’ education and training—for instance, whether: Plaintiffs paid
17 their tuition or up front and then sought reimbursement from NASA or Fiore; NASA paid the
18 college or training directly; NASA provided Plaintiffs with the funds up front; or NASA provided
19 the money to Fiore, and Fiore issued payment to Plaintiffs. Plaintiffs’ counsel was uncertain as to
20 how payments were made but suggested that NASA paid the contractor or the entity providing the
21 training.
22 Indeed, there is no evidence that payments from NASA ever flowed to Plaintiffs directly.13
23 It appears that APPS paid for training and then requested reimbursement from NASA:
24
– Bill Bonner (Fiore employee) . . .”).
25
13 Siuda appears to have testified about how NASA paid for Plaintiffs’ degrees, but Plaintiffs’
26
excerpts of his deposition transcript do not include his complete response. ECF No. 183-3 at 12
(“So when NASA paid for their degrees, it was under a different contract and the options for an
27
associate’s degree was either general studies, business or fire science, and they were given . . .”).
In accordance with the PWS, Appendix M – Firefighter/Officer
1 Minimum Personnel Qualifications, item #2, “Firefighters and Fire
Officers not meeting minimum standards at the beginning of their
2 employment shall have 180 days to comply.” This language
supports APPS’ request for reimbursement for the training. NASA
3 has also historically reimbursed APPS for these expenses.
4 ECF No. 183-3 at 114 (emphasis added).14 Thus, to the extent NASA paid for training, it was two
5 steps removed from Plaintiffs—the payment went to APPS, the contractor that subcontracted ARC
6 fire protection services to Fiore, which employed Plaintiffs. This undermines Plaintiffs’ joint
7 employer theory.
8 5. Management of Day-to-Day Affairs
9 Plaintiffs argue that NASA directed Plaintiffs’ daily activities through the implementation
10 of the Standard Operating Procedures for Operations Battalion Chiefs Duties and Responsibilities
11 (the “2020 SOP”), which NASA approved and modified. Pls. Suppl. Br. at 2–4; see ECF No. 183-
12 1 at 7–17. But contrary to Plaintiffs’ contention, the 2020 SOP is not evidence of NASA’s control
13 over Plaintiffs’ daily activities. The PWS requires the Contractor—that is, Fiore—to “[d]evelop,
14 maintain, and update Standard Operating Procedures (SOP) . . . for operations conducted under
15 this PWS.” ECF No. 166-5 at 8 (emphasis in the original). Specifically, as to fire services, the
16 PWS provides that
17 [t]he Contractor shall:
18 1. Provide a professionally managed, comprehensive fire rescue
services program that complies with the following: NASA-STD-
19 8719.11, NASA Safety Standard for Fire Protection; National Fire
Protection Association (NFPA) codes and standards; state standards
20 and regulations as applicable; and NPR 8715.3, NASA General
Safety Program Requirements.
21
2. Develop, maintain, and implement a Fire Protection Program Plan
in accordance with Section J.1(a), Attachment 3, CDRL Report 16.
22
. . .
23
27. Develop an EMS Program and ensure coordination with the ARC
24 Medical Services Officer.
. . .
25
26
14 This email is from Mariah E. Knefely, Director of Contracts at AEPS Corporation to NASA
27
Contracting Specialist Jamie Schoemaker. The parties do not explain what AEPS Corporation is,
30. Update pre-fire plans annually and retain the plans on first
1 response and command vehicles.
2 31. Manage a Fire Services Safety section. This section shall be
managed by a certified individual with the responsibility of providing
3 oversight of the development of overall safety of operations, to
include all rescue responses, fire suppression, emergency medical
4 services, hazardous materials mitigation, special operations, and
occupational safety.
5
. . .
6 43. Establish and implement an IDLH rescue Program in accordance
with OSHA 29 CFR.
7
8 ECF No. 166-5 at 44–49. To the extent executing these responsibilities requires developing SOPs,
9 that too falls on Fiore. Nothing in the PWS suggests that NASA dictates what goes into the SOPs
10 beyond complying with applicable rules and regulations. The fact that NASA had to approve and
11 could modify SOPs is not indicative of control over Plaintiffs’ daily activities.
12 The purpose of the September 29, 2020 SOP is “[t]o establish formalized responsibilities
13 for the Operations Battalion Chiefs and those designated to fill that role at the NASA Ames Fire
14 Department and to identify the duties and activities they are required to perform.” ECF No. 178-2
15 at 2. Bonner reviewed the September 29, 2020 SOP with Gazaway and provided it to him. ECF
16 No. 180-1 at 7 (“This email is to confirm that this afternoon we met and reviewed the attached and
17 updated SOP covering the duties and responsibilities of an Operation Battalion Chief.”). Bonner’s
18 name also appears at the end of the document. ECF No. 178-2 at 9.
19 Plaintiffs argue that “NASA approved and modified all SOPs at its discretion” and that
20 “Siuda . . . admitted this, testifying that ‘standard operating procedures . . . are written by the
21 contractor and approved by the government’.” Pls. Suppl. Br. at 2 (citing ECF No. 183-3 at 8–9).
22 Plaintiffs cherry-pick and overstate Siuda’s deposition testimony. Suida testified that
23 It was the fire chief’s responsibility to ensure that the three battalion
chiefs and subsequently the captains and the firefighters did the
24 appropriate things based off the way their standard operating
procedures, which are written by the contractor and approved by the
25 government, they’re, you know -- they did have -- I know each
contractor has in-house things the way they did them, so that was the
26 fire chief’s job to make sure they complied with those.
27 I wasn’t necessarily in the loop on those, but you know, they wanted
that was -- that’s kind of getting down in the weeds, but that’s
1 something that the contractor would do to make sure they were
complying with the overarching NFPA 1500 safety programs and
2 what they should or shouldn’t do at a fire scene. So that was always
the fire chief no matter what happened.
3
4 ECF No. 183-3 at 8–9. In other words, Fiore wrote the SOP and ensured that the procedures in the
5 SOP complied with Fiore’s policies or preferences. That NASA approved and could modify the
6 SOP is not indicative of NASA’s control over Plaintiffs’ daily activities.
7 Plaintiffs also point to the fact that “NASA required Plaintiffs to call NASA senior
8 leadership at all emergency or incident scenes.” Pls. Suppl. Br. at 3. This too does not indicate a
9 joint employer relationship. It is entirely reasonable that NASA, as the contracting agency and
10 owner of the premises, expected to be informed of any onsite emergencies that required the fire
11 department to respond.
12 In sum, there is no evidence that NASA controlled Plaintiffs’ day-to-day affairs. This
13 weighs against joint employment.
14 6. Instrumentalities and Tools
15 As additional evidence of NASA’s control, Plaintiffs argue they were required to wear
16 NASA uniforms, had business cards with NASA’s logo, and had email addresses with a
17 @nasa.gov domain. Id. at 4. When considered in the context of the aforementioned factors, this is
18 insufficient to make NASA a joint employer.
19 A uniform bearing NASA’s logo indicates, for instance, that Plaintiffs are authorized to be
20 on the premises. See Banks v. St. Francis Health Ctr., Inc., No. 15-CV-2602-JAR, 2016 WL
21 6905581, at *15 (D. Kan. Nov. 21, 2016) (“Even where the plaintiff is required to wear a provided
22 badge or uniform, this consideration is not sufficient standing alone to prove a joint employment
23 relationship. Given the safety concerns in hospitals, requiring Plaintiff to wear a badge does not
24 go beyond the average vendor-client relationship.”) (footnote omitted); see also ECF No. 166-5
25 at 9 (The contractor shall “[i]mplement and enforce a standard dress code policy to ensure that
26 contract employees wear either appropriate civilian attire or the prescribed duty uniform while on-
27 duty.”). Plaintiffs’ business cards are also insufficient to establish that NASA was Plaintiffs’ joint
] (E.D. Va. May 4, 2017), aff'd, 695 F. App’x 730 (4th Cir. 2017) (Plaintiff “points to [defendant]
2 || providing her with a laptop, an email account, and business cards, and she argues that her work
3 assignments resembled those of the full-time [defendant] employees assigned to the same project.
4 || These facts are not enough to establish that [defendant] was the plaintiff's joint employer.”)
5 Plaintiffs’ @nasa.gov emails are likewise not dispositive of a joint employer relationship.
6 || As Siuda explained, “everybody that works at NASA, contract, civil servant, whatever, you do get
7 || your own E-mail .. . the contractors would say at nasa.gov, but somewhere in there it would say
8 Fiore or whatever the contractor’s name was, you know.” ECF No. 183-3 at 23. Indeed,
9 || Plaintiffs’ emails appear with a “[FIORE]” notation:
10 From: Bala, Lynn M (ARC-IP} . . □
12 Subject: Protective Services Government Notification
Date: Tuesday, November 16, 2021 1:37:35 PM
Y 14 || ECF No. 183-2 at 7. The fact that Plaintiffs’ and other Fiore employees’ email accounts were
15 distinguished from those of NASA employees further weighs against finding that NASA is a joint
16 |} employer.
17 |} If. CONCLUSION
18 For the foregoing reasons, the Court DISMISSES the action WITH PREJUDICE for lack
19 || of subject matter jurisdiction. Because jurisdiction is lacking, the Court TERMINATES AS
20 || MOOT NASA’s motion for summary judgment and Daubert motion and motion to exclude
21 Plaintiffs’ experts. ECF Nos. 165, 166.
22 IT IS SO ORDERED.
23 Dated: June 22, 2026
94 ee ‘
25 Noel Wise
United States District Judge
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