Petition for Writ of Certiorari — Foster v. Arcata Associates, Inc.

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Supreme Court, U.S.

FILED

85°1292) DEC 30 1985

cane - JOSEPH F-SPANIOL, JR.

CLERK

EF SUPREME COURT

of the

UNITED STATES

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ACTARE rT } (2 0

OCTOBER TERM, 198

INU) .

T y \ T

LYNN ¢ LER,

Petitioner,

a Amp - OnR Am aI

ARKRCALA ASSOC ALOO , INC os

re 5 D¢ 1d iC

T \ T T roc ) rn T nA

a | A — OF .

+¢ N ¢ T T 'T

i XY A A

ee eh M WHRTNGCA TERR

SAUL M. WEINGARTEN

SAUL M. WEINGARTEN, INC.

an “ 2

f mont Professional Center

rem Tt I TO “2 oy . \

age sui) id L VU & W 1 LlamM AV .

QUESTIONS PRESENTED

he Did Petitioner Have the Technical

Background and Experience Required _ for

the Position at Nellis?

as Was Nellis a "Separate

Establishment" Under the Equal Pay Act?

3. Did Respondent's Conduct Establish

a Prima Facie Case of Sex

Discrimination?

SUBJECT INDEX

Paqe

Jurisdictional Statement )

Opinion Below

Jurisdiction 2

statutes Involved 4

Statement of the Case

Statement of Facts 6

A. Introduction 6

B. AS Related to Specified Errors

of the Trial Court LO

Conclusion 28

Appendix

"A" - Order of June 13, 1984

"B" - Opinion of October 2, 1985

"C" - Order of November 25, 198

as TABLE OF AUTHORITIES CITED

Cases

Adickes v. S. H. Kress & Co.

(1970) 398 U.S. 144,

90 S.Ct. 1598

Bernald v. Gult Oil Co.

(1979) CA 5th

Burgess v. Atlantic Coast Line

RR. Co. (0. C. 1966)

39 FRD 588

Douglas v. Anderson,

656 F2d 528, 535

(9th Cir. 1981)

Grumbine v. U. S.

(1984) 586 F. Supp. 1144

Poller v. Columbia Broadcasting

Systems (1962) 368 U.S. 464,

82 S. Ct. 486

Radobenko v. Automated Equipment

Corp., 520 F.2d 540

(9th Cir. 1975)

Robertson v. Seidman

CA2d, 1979, 609 F2d 583

Constitution

United States Constitution,

Fourteenth Amendment -

Pade

Due Process and Equal Protection

Clauses

lli. Table of Authorities Cited

(continuea)

_ ‘

Statutes

Age Discrimination in Employment Act q

Civil Rights Act of 1964,

aS amended +

Equal Pay Act i, at

29 U.S.C. Section 206(a) 4, 26

section 621](d) 4

42 U.S.C. Sections 2000(e), et seq, i

20C0(3), et seq.

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1985

LYNN FOSTER,

Petitioner,

vs.

ARCATA ASSOCIATES, INC.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JURISDICTIONAL STATEMENT

Petitioner petitions following the

Opinion of the United States Court of

Appeals for the Ninth Circuit, This

Opinion of October 2, 1985, in Case No.

84-2218, affirming the judgment of the

United States District Court tor the

Northern District of California,

Honorable William A. Ingram, Judge, in

favor of Defendants (Respondents herein)

in Case No. C-83-20084 WAI, became final

on December 3, 1985, when the United

States Court of Appeals for the Ninth

Circuit denied rehearing.

Petitioner submits this statement

to show that the Supreme Court of the

United States has jurisdiction of the

matter and that a substantial question

is presented.

OPINION BELOW

The Opinion of the Court of Appeals

is reported pursuant to the Order of the

Same Court, Since the Opinion carries a

legend "FOr Publication", Said

published Opinion is attached hereto as

Appendix "B",

JURISDICTION

The complaint for relief was

brought by Plaintiff (Petitioner

herein), a female employee of ARCATA

ASSOCIATES, under Title VII of the Civil

Rights Act of 1964, amended, 42

[ela

U.S.C. Sections 2000(3) seg., and the

due process and equal protection clauses

of the Fourteenth Amendment, against

ARCATA ASSOCIATES, INC., and certain of

its officials. The employee claims that

certain employment practices of ARCATA

are unlawfully discriminatory on the

basis of sex, age, and wage

discrimination. The United States

District Court for the Northern Sattiet

of California, Honorable WILLIAM Ak.

INGRAM, Judge, granted Detendant summary

judgment. (Appendix "A"). The employee

appealed to the Court of Appeals for the

Ninth Circuit, which affirmed. The

employee then petitioned for rehearing,

which was denied on November 25, 1985,

(Appendix "C") thus docketing of this

appeal is timely.

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STATUTES INVOLVED

The statute involved is Title VII

of the Civil Rights Act of 1964, as

amended, 42 U.S.C. Section 2000(e), et

seq., The Age Discrimination in

Employment Act, 29 U.8.C. Section

621(d), and the Equal Pay Act, 29 U.S.C.

Section 206(d).

STATEMENT OF THE CASE

Plaintiff and Petitioner, FOSTER,

filed her complaint in this action on

June 22, 1983, after receiving a Notice

of Right to Sue from the Equal

Employment Opportunity Commission = on

April 25, 1983 (Exhibit A" to

complaint). She alleged that she _ had

been denied equal pay and had_ been

subjected to illegal discriminatory

treatment by reason of her age and sex.

On June 13, 1984, the United States

District Court, Northern AE rer ge of

California, Hon. William A. Ingram,

Judge, granted ARCATA'S' motion for

summary judgment and dismissed the

action. This petition seeks review of

the dismissal and the order upon which

The principal question presented is

whether there 1s the total absence ot

any genuine issue as to all of the

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material facts. (Robertson v. Seidman

CA2d, 1979, 609 F2d 583; Bernald v.

Gulf Oil Co. CA 5th, 1979). Unless this

is established by the movant, who is

held to a strict standard, summary

judgment is inappropriate. (Poller v.

Columbia Broadcasting Systems (1962) 368

0.8. 44, 82 &. Ct. $06).

There are uncontradicted facts, to

be sure, but they do not support’ the

award of a summary judgment. (Burgess

v. Atlantic Coast Line R.R. Co. (D SC

1966) 39 FRD 588; Adickes v. S.H. Kress

& Co. (1970) 398 U.S. 144, 90 S.Ct.

1598.

STATEMENT OF FACTS

A. INTRODUCTION.

FOSTER is a 58-year old woman who

had been employed by defendant, ARCATA,

aS a Contracts Administrator in 1980.

ARCATA did business at Monterey (Fort

Ord), Nellis Air Force Base and at

Burlingame, where corporate headquarters

were located. For more than 1 1/2

years, FOSTER worked at all three

locations, although she resided at

Monterey and had stated a preference

for the Monterey location when she was

employed. Although she had more than 25

years' experience in government contract

administration and supervision, at very

high levels of responsibility, she was

paid substantially less than her male

counterpartsS in comparable positions,

although most had less qualifying

experience or expertise. Although ~ she

waS advised that she was performing her

work, including the Nellis job, in an

outstanding manner, and despite the fact

that she was informed that a substantial

raise was imminent, in fact, a 33 year-

old male, William Hamby, was employed at

Nellis at a salary 25% higher’ than

FOSTER was receiving, Although it was

the policy of ARCATA CO ann

available position:

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At the same time, male employees with

responsibilities comparable to FfOSTER's

were compensated in the range of

$40,000-$65,000 per annum, 33% to 117%

more than she was paid.

ARCATA'S Claim that FOSTER’ was

unqualified for the position for which

Hamby was selected was not Supported by

the facts established. When ARCATA

Submitted its proposal for the Nellis

contract, it listed FOSTER as the person

who would fill the position and

Submitted her resume to eatabiien that

it had fully-qualified personnel to

perform the required functions.

[ronically, ARCATA obtained the Nellis

contract, in part, by reason of the

representations as to FOSTER's

qualifications, which qualifications it

now contends were inadequate.

In any event, the Appellate Court

determined that FOSTER had satisfied her

burden of presenting evidence sufficient

to generate a genuine issue of material

fact about her qualification for _ the

Nellis position (Opinion p. 12).

B. AS RELATED TO SPECIFIED ERRORS

OF THE TRIAL COURT

A prima facie case of prohibited

discrimination is established where

FOSTER is within the protected class,

has applied for an available position

for which qualificd and is denied the

position, which is given to a younger

person, It is admitted that sil ot

these conditions exist, except for

qualification. On this issue, the

District Court and Appellate Court

disagreed (Opinion p. 12). The District

Court resolved the evidence against

FOSTER, disregarding contrary evidence

(eeeroeeeoee est. Li-24). The District

Court refused to consider much of

FOSTER's evidence as mere "“speculation"

yo7e=4, 7

oy ant

(Order, P. 6, L. 9), refusing to enforce

the rule that a litigant snould norinally

be accorded her day in court and that

Summary judgment iS appropriate only

where there is no real triable issue of

material fact after according the

oppoSing party (here FOSTER) the benefit

of all legitimate inferences. Although

the Appellate Court disagreed with the

District Court's determination, it

failed to reverse.

The Appellate Court erred in

finding that there were legitimate

nondiscriminatory reasons for ARCATA's

failure to consider FOSTER for the

Nellis position, i based this

conclusion on the fact that FOSTER had

conditioned her employment on _ being

Stationed in the Monterey Peninsula area

when first employed, in 1980; and iina

letter requesting increased

compensation, later. There is no

demonstrated logical basis for assuming,

aS wasS done here, that, because a person

has a strong preference for employment

in one area, that she would assert the

Same condition at all times in the

future. Here, it was shown that many

things had changed since FOSTER’ was

first employed. (1) FOSTER had been

required to work at Nellis (and

Burlingame) despite her prererence and

was familiar with the duties; (2)

ARCATA had failed to win renewal of its

contract at Monterey (Fort Ord) on that

FOSTER'S employment there would be

terminated, leaving her unemployed, if

she did not accept the Nellis position;

(3) ARCATA had not submitted her name

anda resume tor the Nellis contract when

she was first interviewed and asked her

preference as to working location.

(Indeed, ARCATA had not even obtained

the Nellis contract at that time),

There was a wholly new and difterent set

of facts and circumstances in existence

when ARCATA elected its discriminatory

acts. ARCATA's later excuses were mere

pretext, an attempt to justify its

discriminatory acts. If it believed

that FOSTER would not accept the job

because of location, why did it not ask

her? She was working at Nellis and at

the corporate headquarters at Burlingame

and was readily available. The long-

standing policy of ARCATA was to notify

all present employees of all job

openings before they were filled. This

is the sole demonstrated case where they

did not do so. All of this is

consistent with the claim of pretext and

presented factual issues, at least

worthy of trial. The Appellate Court

conceded that the failure by ARCATA to

notify FOSTER of the ovening might give

rise to an inference of discrimination

— T

(Opinion P, me) FOSTER's declaration

in opposition to the motion for summary

judgment, which pointed out the changes

by virtue oft the passage of time = and

circumstances and explained her earlier

preference as to location, was

disregarded by the District Court as

being inconsistent with prior deposition

testimony. It was not, The District

Court failed to consider the passage of

time and changes ot circumstances which,

in turn, eliminated the earlier

condition, The District and Appellate

Courts conclude that FOSTER failed to

communicate her avallability for work at

Nellis to ARCATA, (Opinion P. 6). This

ignores the fact that FOSTER actually

agreed to work at Nellis and had been

working there satisfactorily for more

than a year when ARCATA elected,

Secretly, to award her position to a

younger male. She continued to work at

Radobenko Vv. Automated E

520 F.2d 540 (9th Clr. 1975) tor t |

proposition that a party could not

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create an 1Ssue by a deciaratiot

contrary CO ner qadeposition. ih

comparison is not well-taken, there was

separate and distinct evidence Ol

PFOSTER's willingnesss to work at Nellis

from the strongest and inos!t crealible

facts, namely that she did accept and

did work there tor a substantia: period

of time.

Substantial and material portions

of the facts of this case are misstat:

by the District Court in its Order, The

following illustrate the extent ind

severity of these errors, which strike

at the very essence of the Court's

reasoning in granting summary Juagment:

(1) The Court stated that ” it 1S

unrebutted that Enus (not tne detendant)

had virtual sole control over hiring at

Ser terger, PP. 5S, L. 26). This

was rebutted in Exhibit "A", attached to

FOSTER's initial response. In Paragraph

5 of that document, prepared by AKCATLA,

it is set out that authorization to hire

Hamby was given to Enus by the

President, Vice-President and General

Counsel of ARCATA. The District Court

assumed, incorrectly, and without any

factual reference to the record, that

"Plaintiff had submitted nothing more

than her beliet that Arcata had

something to do with Hamby 's hiring

because its corporate officers had

acquiesced in it as evidenced by the

corporate minutes." (Order, P. 5, L. 26

- Pp, SS ae ARCATA'S corporate

minutes establish authorization, not

acquiescence. They corroborate and

confirm FOSTER'S asertions that Enus

did, in fact, have to seek authorization

from ARCATA and that ARCATA, at their

Burlingame headquarters, approved the

hiring.

Additionally, there was direct

rebuttal by FOSTER in her declaration of

February 1, 1984, in opposition to the

eotion (Fi. -25. hs. 26 to P. ns ame ye

Given the constraints on motivation and

intent applicable here (Douglas V.

Anderson, 656 F2d 528, 535 (9th Cir.

1981) any doubt that the hiring was the

act of ARCATA should have been resolved

in favor of FOSTER for purposes of

summary judgment.

(2) The District Court found that

"Plaintiff has set forth no evidence

that she was as qualified as Hamby tor

the particular position.” (Order, P. 5,

oe | Se Such conclusion is erroneous,

There is substantial evidence that

FOSTER was qualified (l) for the Nellis

position and (2) the responsibilities of

the position FOSTER occupied entitled

her to be paid at least the same salary

as Hamby. (The Equal Pay Act issue wiil

be addressed separately below).

The facts, as set forth by FOSTER

in her response (Pp. 2, LL. 6 - 27) are

that FOSTER possessed each ot the

specific qualifications, listed as "a

through ai in ARCATA's minutes

(Plaintiff's response, Exhibit "A").

FOSTER's direct assertion that she

possessed the skilis and experience

specified for this position is entitled

to consideration by the Court ‘and is

sufficient to resist a summary judgment

motion, Instead, the District Court

characterized this competent evidence as

“unsupported assertions and speculation"

feeeer, PF. 5S, Le 14). If there was

doubt as to FOSTER's qualifications,

this was at least an issue to be

determined at trial and not by indulging

in an inference against FOSTER, which is

directly opposite to that mandated in

this situation.

The nature and extent of FOSTER'S

qualifications and experience was

detailed in her deposition, to which the

Court referred in its Order (Order, PF.

5, L. 9). She had 25 years' experience,

mostly at high level, in administration

of government contracts (FOSTER depo. Ps

32, kn Fs In that same deposition,

FOSTER testified to many other tacts.

She had experience and responsibilities

other than procurement (FOSTER depo. P

62> Le iL?=24) P. dig ke ee = 25)... “ER

the same deposition, inotive for the

actions taken by ARCATA was established

factually as well. FOSTER, who was

working as Contract Administrator = at

Fort Ord and Nellis, requested an upward

pay adjustment (Foster Depo. P. 33, aly

- 26). FOSTER's qualifications and

experience were further confirmed in her

Answers to Interrogatories, filed by

ARCATA in support of their motion

(FOSTER Int. P. 5, L. 1-22), which also

established that FOSTER had pertornica

the Contract Administrator position tor

more than a year-and-a-haltf betore Hamby

was secretly hired tor the same position

at a salary which was $7,500 more than

FOSTER was being paid (FOSTER Int. P. 5,

L. 8). The job duties and

responsibilities of Hamby were not

different than FOSTER's, except to tne

extent that FOSTER carriea oul | greater

responsibilities and duties. (Foster

pene. 8 10, b.. 3 - 234s

(3) Wage discrimination as an

issue requiring trial was established by

evidence that FOSTER, a member of a

protected class, was paid substantially

less than (1) Hamby and (2) all other

male employees with comparabie (or

lesser) qualifications) ana experience

tnat there was “ne Gis t 1! ra lon"

petween Burtinqame, N ee Or |

Ord) IS Was UDPpo! tea DY t - I I a

rontrary tt FOSTER's declarat tha

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unby was hired in her place Ost

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sstablished in the dual 1 ponsibiliti:

of others (Foster Int. P. : ie

OG).

ne LStrict yurt rx

question as whether FOSTER nd lamby

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contrary CONM¢ US LON. FOS THE! WOrKEQC it |

jellis, Bur lingal and Fort Ord

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ear~-anag-arnail i L ¢ f iamDp\ Was j j

(Foster Int. Pe Se be. Te 24-28% P. 10,

L. 3-13). The duties at Nellis were the

same and until after this action was

filed, the title of the positions was

the same, The differences were (1)

FOSTER worked part-time at Nellis and

(2) Hamby was paid substantially more

than FOSTER for the same work.

(4) The District Court inade

further errors of fact in assuming that

FOSTER had “conditioned her enployment

on remaining in Monterey such that

ARCATA had no reason to believe “whi was

interested in the Nellis position,"

(Order, P. 5, L. 21).

When FOSTER first apps led to

———— os

APCATA, she conditioned her acceptance

on working in the Monterey area (Foster

depo. P. 23, L. 14-16). However, after

she was employed, she agreed to travel]

to Nellis or Burlingame or Sacramento,

whenever the need arose, (Foster dépo,

CC —_

ieee tss PP. 12, 4L. 6-10).

FOSTER demonstrated, after hire, that

she would go where ARCATA required to

perform her duties.

Notwithstanding all of the

foregoing facts and stated unresolved

issues, the )pDistrict Court determined

that FOSTER was not interested in the

Nellis position and that, theretore,

ARCATA has articulated lawful reasons

for its discriminatory actions. The

District Court acknowledges that FOSTER

has controverted ARCATA's motion, but

dismisses the response "To the extent

her declaration in opposition to this

motion is to the contrary, it is

disregarded." (Order, P. 5, L. 23).

Such disregard of competent evidence is

unwarranted.

(3) Additionally, under

“Uncontroverted Facts” (P. 2, L. 16),

the District Court found that Hamby had

been employed as a contracting otficer

for a large government contractor. ‘This

is unsupported by the record. Hamby 's

resume establishes that he was merely a

contract administrator for a

subcontractor. He was never a

contracting ofticer.

(6) Also, under "“Uncontroverted

Facts” (P. 35 L -23, the Bistrict Court

declares that "The EEOC found no basis

for her claim..." There was no basis

for this finding. In fact, the BEOC did

find discrimination in FOSTER'S case.

As the result of the EEOC findings,

ARCATA offered, and FOSTER accepted, a

position at Nellis in February 1983.

(The otfer was communicated through the

EEOC). Later, FOSTER resigned as the

result of retaliatory treatment on the

part of ARCATA.

In determining that FOSTER was not

entitled to the protection of the Equal

Pay AGT £? Uc Ss. Para.

206(d)(1) (1982), the Appellate Court

overlooked the following facts, which

distinguish this case from the cases

cited in the Opinion:

(1) This was not a nationaily-

operated business with many

establishments spanning) the nation,

Three of the four operations were

located in California (Burlingame,

Monterey, and Sacramento) and one

(Nellis) was almost contiguous with the

California borcacer.

Cz? Management was centralized at

Burlingame, Corporate policy eminated

from Burlingame for all operating

locations. ven the employment of Hamby

was approved from Burlingame. Bnus'

authority came from Burlingame ana he

demonstrated, by requesting approval of

the hire, that he did = not head an

independent establishment.

(3) FOSTER, with a single rate ot

pay, wor ked in each of the four

locations. If there was a legitimate

differential in pay rates, based = on

Nellis being a separate establishment,

this was not recognized in FOSTER'S

prior pay rates. It was only after

Hamby's hire that this "separate

establishment" claim arose. The fact

that FOSTER, who was then performing

duties at several locations

Simultaneously, was listed as the person

who would continue to perform the

Contract Administrator duties at Nellis

in the employer's contract proposal, is

further evidence, overlooked by the

Appellate Court in its Opinion, that

Nellis was integrated into ARCATA'S

corporate structure, headquartered in

Burlingame. It should be deciSive that

FOSTER herself was assigned to Nellis by

Burlingame.

When these facts are considered,

the circumstances fall within the

rationale of Grumbine v. U. 53. (1984)

586 F. Supp. 1144.

CONCLUSION

The sole ultimate question tor

determination on a motion tor summary

judgment is whether there are genuine

issues of material fact. If they are

demonstrated, summary judgment cannot be

substituted for the more compiete = and

searching analyses of trial.

The Appellate Court found that

FOSTER had demonstrated that she is a

member of a protected class, based on

both age and sex, I1t disagreea with the

District Court and determined that she

had succeeded in raising an issue ot

fact on her qualification for the Nellis

position, It is beyond argument that

there was pay discrimination agalast

FOSTER and that she was) prejudicially

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affected by the enuployer's cecrs1o% (1)

not to notity of the iob Opening and C2)

co hiae the position from bye until

atter it was filled. [These tacts, which

are not conslaered or jistinguish

roe

the Court's Opinion, at

issues of fact, requiring trial, as aoe

the issue ot whether Nellis was

“separate establishment" permitting

pay differential which would, otherwice

be a prohibited discrimination.

DATED: January 15, 1986

Respectfully submitted,

SAUL M. WEINGARTEN, INC.

Attorneys for Petitioner

By... 24i%,% SEA .

SAUL M. WEINGARTEN

APPENDIX

APPENDIX "A"

FILED ;

JUN 13 918 ‘AM '84

WILLIAM L. WHITTAKER

CLERK

U.S. DISTRICT COURT

NO.DIST.OF CA., S.J.

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

LYNN FOSTER, NO.C-83-20084 WAI

Plaintiff, ORDER

ARCATA ASSOCIATES,

INC.,

)

Vv. )

)

Defendant. )

)

Detendant Arcata Associates, Inc.

("ARCATA") moves for summary judgment in

this action for sex, age and wage

discrimination under Title VII (42

U.S.C. S 2000(e) et seg.), the Age

Discrimination in Employment Act

("ADEA")(29 U.S.C. Sec. 621(d)), the

Equal Pay Act (29 U.S.C. Sec. 206(d)),

and 42 U.S.C. Sec. 1981.

I. UNCONTROVERTED FACTS

Plaintiff Lynn Foster is a 58-year

old woman who had been employed from

October 1980 through the end of 1982 as

a contract administrator at Arcata's

offices in Monterey, California. Arcata

is a government contractor which manages

and performs various testing and

services for the military at, in this

case, Fort Ord, in Monterey, and Nellis

Air Force Base, near Las Vegas, Nevada.

Plaintiff had resided in Monterey with

her husband, a retired naval officer

also employed by Arcata, prior to

joining Arcata. She has a_ college

degree in Business Administration, Her

starting annual salary was between

$27,000 and $28,000.

In 1981, Arcata hired James Enus as

a Project Manager for its Nellis

contract. Enus was given full

authority to hire personnel subject

only to budgetary constraints. In

April, 1982, Enus decided to hire an

assistant capable of managing

performance of the Nellis contract. He

interviewed and hired Bill Hamby. Hamby

was to be stationed in Las Vegas. His

starting salary was about $37,000.

Hamby had been a Weapons Systems officer

in the Air Force and had been an

operations officer at Nellis. Hamby had

a degree in Public Administration and

had been employed as a contracting

officer for a large government

contractor. At the time of Hamby's

hiring, plaintiff's salary was $30,000.

In June, 1982, Arcata was out-bid

as to its Port Ord contract. All

operations were to. be phased out by

January, 1983. Plaintiff was

interviewed and offered a position by

Arcata's successor but did not accept

the position as its hours did not meet

her needs. Plaintiff's husband accepted

a position with Arcata's successor.

Plaintiff was notified of her

termination effective in January, 1983,

in September. She filed a complaint

with the EEOC in November, 1982,

charging sex and age discrimination for

not having been offered Hamby's job and

that she should have received at least

Hamby's salary for her job. The EEOC

found no basis for her claim and issued

its Notice of Right to Sue on April 26,

1983. This action was filed June 22,

1983.

ie DISCUSSION

Plaintiff's Sec. 1981 claim is

DISMISSED as wholly without merit.

Section 198] relieves) only racial

discrimination, White v. Washington

Public Power Supply System, 692 F.2d

1286 (9th Cir. 1982), and there are

neither allegations nor evidence’ to

support this claim.

B. Equal Pay Act Claim

The question presented is’ whether

plaintiff and Hamby worked in the’ same

"establishment." The Supreme Court has

held that establishment means a

distinct physical place of business.

Phillips v. Walling, 324 U.S. 490, 496

(1944). That definition was adopted by

the Secretary of Labor at 29 CFR

800.103, 108 (1976). See Gerlach v.

Michigan Bell Tel. Co., 448 F. Supp.

1168, itive (8.0. Mica. -6.0.. LSFe?.

Recent authority indicates its

application is ad_ hoc, See, e€.g.,

Alexander v. University of Michigan-

Flint, 509 F.Supp. 627, 629 (E.D. Mich.

S.C. i980).

In this case, Arcata maintains its

corporate headquarters in Burlingame,

California, through which both contracts

OO |

were apparently negotiated. However,

day-to-day operations and contract

performance is conducted at each of the

field offices located near the military

bases with no direct interaction between

the two. et Alexander, supra

(individual campuses of University of

Michigan system held separate

“establishments" despite cental

university policy offices). The court

therefore concludes that the Nellis’ and

Ford Ord oftices are distinct and

separate establishments such that no

Equal Pay Act claim may be made as a

matter of law.

C. Sex and Age-based

Discrimination Claims

Under the ADEA and “Title VII,

courts apply a three-part analysis: 1)

plaintiff must establish a prima. facie

case of discrimination; 2) defendant

may rebut the claim with evidence of

legitimate, non-discriminatory

justification for its alleged

misconduct; 3) plaintiff may rebut

defendant's justification as a pretext

of discrimination. Texas Department of

Community Affairs v. Burdine, 450 U.S.

248 (1981)(ADEA); McDonnell Douglas

Corp. Ve Green, 411 U.S. 792

(1973)(Title VII).

As to the ADEA claim, plaintiff

must submit evidence that age waS a

“determining factor" in defendant's

adverse decision. Steckl v. Motorola,

Inc., 703 F.2d 392 (9th Cir. 1983). An

inference of age discrimination arises

where plaintiff is within the protected

class, has applied for an available

position for which he or she is

qualified and is denied the position

which was instead given to a younger

person. Id., at 393.

Plaintiff herein is clearly within

ae rie —.-

the protected class. There iS some

dispute as to whether Hamby's job was

available to her. She contends it was

kept secret from her; defendant

contends it had nothing to do with

establishing the position but that, at

any rate, it needed to keep plaintiff in

Monterey for its business~= and her

personal reasons such that it did not

believe she would be interested. The

court obviously must resolve conflicting

inferences in favor of plaintiff and

Cannot rest summary judgment on the

availability issue.

However, the bigger question is

whether plaintiff was qualified for the

Nellis position. Enus needed someone

with a technical background and

familiarity with Nellis weapons systems

and procedures and someone who could

provide close liason with the Air Force.

Hamby had been providing similar

functions for another government

contractor. (Enus decl. paras, 4-7.)

Plaintiff had 20 years of government

experience (Foster depo. 61:15-23),

limited solely to procurement (Foster

depo. 11:28).

Plaintiff has set forth no evidence

that she was as qualified as Hamby for

the particular position, She merely

asserts that Hamby was chosen because

he was younger and that she was just as

qualified, Unsupported assertions and

Speculation are insufficient to ‘suppers

her position, The inference is that

Plaintiff was not qualified for the

Nellis position.

Even assuming plaintiff has made

out a prima facie case of age

discrimination, the court finds that

defendant has articulated legitimate,

lawful reasons for its actions. From

Plaintiff's own admission and by her

employment demands, plaintiff had

conditioned her employment on remaining

in Monterey such that Arcata had no

reason to believe she was interested in

the Nellis position. To the extent her

declaration in opposition to this motion

is to the contrary, it is disregarded.

Radobenko v. Automated Equipment Corp.,

520 F. 2d 540, 543-544 (9th Cir. 1975).

Moreover, it is unrebutted that Enus had

virtual sole control over hiring at

Nellis. Plaintiff has submitted nothing

more than her belief that Arcata had

something to do with Hamby's hiring

because its corporate officers had

acquiesced in it as is evidenced by

corporate minutes. The court is mindful

that summary judgment is only

reluctantly granted concerning questions

of motivation and intent. Douglas v.

Bnoereon, 656 F.20 5268, 535 (9th Cir.

1981). However, plaintiff has failed to

proffer any evidence worthy of weighing

and the court does not intend to promote

judicial review of general business

decisions based upon plaintiff's

speculation.

As to the sex discrimination

claims, the same result applies. As

discussed above, plaintiff has dubiously

set forth her prima facie qualifications

for the Nellis position. Cf. Heyman v.

Tetra Plastics, 640 F.2d 115 (8th Cir.

1981). Defendant has provided

legitimate, lawful business fiends for

its failure to hire her. Plaintiff has

set forth no evidence of pretextual

motivation,

Plaintiff has also failed to

provide any evidence of violation of the

so-called “comparable worth"

requirements of Title VII. See, €0.,

Kouba v. Allstate Ins. Co., 523 F. Supp.

148 (N.D. Cal. 1981). Plaintiff must

Sa rene een —=—— oe

———— —-—— — te tr ai

———— a TOES

1 REUBEN, oF SRA

set forth some objective evidence of

intentional wage discrimination on the

basis of her sex, Id., and _ she _ has

failed to do so.

ae a CONCLUSION.

Accordingly, there are no triable

issues of material fact as to any of

plaintiff's claims for reiief. Summary

judgment is therefore GRANTED and this

action is DISMISSED with judgmen

entered in favor of defendant with each

party to bear his or her own costs.

DATED: 6 13 84

/s/

WILLIAM A. INGRAM

United States District Judge

FILED

JUN 13 9 18 AM '84

WILLIAM L. WHITTAKER

CLERK

U.S. DISTRICT COURT

NO.DIST.of CA., S.J.

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

LYNN FOSTER, ) NO.C-83-20084 WAI

)

Plaintiff, ) JUDGMENT

)

Vv. )

)

ARCATA ASSOCIATES, )

IM.» )

Defendant. )

)

In accordance with the accompanying

order,

IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that this action is DISMISSED.

DATED: 6 13 84

/s/

WILLIAM A. INGRAM

United States District Judge

APPENDIX "B"

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Lynn Foster,

Plaintiff-Appellant, No. 84-2218

Vv ; D.C. No.

. C-83-20084 WAI

ARCATA ASSOCIATES, INC.,

Defendant-Appellee. OPINION

Argued and Submitted

March 15, 1985—San Francisco, California

Filed October 2, 1985

Before: J. Clifford Wailace and Cecil F. Poole, Circuit Judges,

and Albert Lee Stephens* District Judge.

Opinion by Judge Poole

Appeal from the United States District Court

for the Northern District of California

William A. Ingram, District Judge, Presiding

SUMMARY

Employment Discrimination

Appeal from grant of summary judgment ia favor of an

employer on claims of sex and age discrimination, and violation

of the Equal Pay Act. Affirmed.

Foster—a fifty-eight year old woman—was employed by

Arcata as a corporate contracts administrator. Arcata’s main

*Honorable Albert Lee Stephens, Senior United States District Judge for the

Central District of California, sitting by designation.

as ——- a

2 Foster v. ARCATA Associates, INC.

office was in Burlingame, California, but it had two branch

offices: one at Nellis Air Force Base in Las Vegas, Nevada, and

the other at Fort Ord in Monterey County, California. Foster

was stationed at the Monterey office pursuant to her express

request when she was hired. In August 1981, Hamby was hired

as a contract compliance manager for a contract with the Air

Force at Nellis. Arcata lost the Fort Ord contract in July 1982

and Foster was notified in September of that year that her termi-

nation would be effective the next January. In November of 1982

she filed a complaint with the Equal Employment Opportunity

Commission (EEOC), charging sex and age discrimination

because she had not been offered Hamby’s job in Nevada, and

had not been paid the same salary as Hamby for her work on the

Fort Ord contract. Although she was subsequently hired for work

on the contract at Nellis at the same salary as Hamby, she

resigned after six weeks due to alleged hostility resulting from

her lawsuit.

Foster filed suit after the EEOC issued a Notice of Right to

Sue. She charged sex and age discrimination in violation of Title

Vil of the 1964 Civil Rights Act, the Age Discrimination in

Employment Act (ADEA), the Equal Pay Act, and the 1866

Civil Rights Act.

[1] In McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), the Supreme Court set forth the basic allocation of bur-

dens and the order of proof for Title VII cases alleging disparate 4

treatment. A plaintiff must first make out a prima facie case of 4

discrimination. If the plaintiff succeeds, the duty of going for-

ward shifts to the defendant to articulate some legitimate, non-

discriminatory reason for the adverse employment decision. If

the defendnt is successful, the responsibility then reverts to the

plaintiff to negate the defendant’s excuse by showing that the

proffered reason is but a pretext for discrimination. [2] Under this

analysis, Foster demonstrated that she was a member of a pro-

tected class based on her age and sex. [3] She also succeeded in

raising an issue of fact concerning whether she was qualified for

the position at Nellis. [4] The issue of whether Foster’s failure to

apply for the position is fatal to her prima facie case need not be

fe taal

Foster Vv. ARCATA ASSOCIATES, INC. 3

reached because consideration of the second and third prongs of

the McDonnell test is dispositive of the issue.

Arcata alleges three nondiscriminatory reasons for its decision

to hire Hamby for the Nellis position: [5] Foster was not consid-

ered because she had previously communicated a willingness to

work only in Monterey; [6] she was not qualified for the position

or Hamby was better qualified for the position; and [7] sound

business judgment was the basis for the decision because Foster

could not have been spared from her job in Monterey.

[8] Foster failed to raise an inference that Arcata’s proffered

reason for hiring Hamby was pretextual because she did not pres-

ent evidence sufficient under F. R. Civ. P. 56 to indicate that

despite her original expression of a willingness to work only in

Monterey, she was subsequently effective in communicating her

availability for work at Nellis to the person or persons responsible

for hiring decisions.

[9] The Equal Pay Act prohibits an employer from engaging in

sex-based wage discrimination by paying different sexes within

any establishment for jobs that require substantially ¢qual skill,

effort and responsibility, and which are performed under similar

working conditions. [10] Foster has failed, as a matter of law, to

produce facts sufficient to indicate that the Nellis and Fort Ord

offices are the same under the Equal Pay Act. [11] She also failed

to articulate specific facts demonstrating that male employees

who worked within the same establishment as she, performed

substantially equal work for which they were paid more.

{12} Likewise, she failed to set forth evidence sufficient to

establish a prima facie case of intentional wage discrimination

based on Title VII. [13] Even though she was paid less than

Hamby, her claim cannot succeed because the responsibilities of

their positions were not substantially equal. [14] Nor did she set

forth a prima facie case of intentional wage discrimination

because of her age in violation of ADEA.

[15] Finally, because Foster did not apply for a continuance or

other appropriate discovery order, the district court did not abuse

4 Foster Vv. ARCATA ASSOCIATES, INC,

its discretion in proceeding to summary judgment when discov-

ery had not been completed.

COUNSEL

Saul M. Weingarten, Seaside, California, for the plaintiff-

appellant.

Pillsbury, Madison & Sutro, Michael Salinsky, John C. Cook

and Christopher W. Katzenbach, San Francisco, California, for

the defendant-appellee.

OPINION

POOLE, Circuit Judge:

Appellant Lynn Foster appeals the district court’s grant of

summary judgment in favor of Arcata Associates, Inc, (Arcata)

on Foster’s claims of (1) sex discrimination under Title VII, (2)

age discrimination under the ADEA, and (3) violation of the

Equal Pay Act. Foster’s claims arose out of Arcata’s failure to

offer her a position in its office near Las Vegas, Nevada, when the

company was forced to phase out its office in Monterey, Califor-

nia, where appellant was employed, and its failure to pay Foster

a salary equal to that paid the person whom Arcata hired for the

position. We affirm.

FACTS

Appellant, a fifty-eight year old woman, was hired in October

1980 as Corporate Contracts Administrator by Arcata, a corpo-

ration that provides scientific, engineering, and facilities man-

agement support to the government and professional services

companies. During the time of appellant’s employment until she

ss Roster v. Arcata Associates, INC. 5

resigned in April 1982, Arcata’s corporate offices were located in

Burlingame, California. The company also maintained two field

offices in connection with separate services contracts awarded by

the United States Army and Air Force. One office was at Fort

Ord in Monterey County, California, and the other at Nellis Air

Force Base in Las Vegas, Nevada. Although a member of the

corporate staff, appellant was stationed at Arcata’s Monterey

office, pursuant to her express request when she was hired.

Appellant has a college degree in Business Administration,

certificates in government contracting, and approximately twen-

ty-five years civil service experience in government contracting.

She was hired by Arcata at a starting salary of between $27,000

and $28,000 per year, which was approximately $10,000 less

than she had been earning in her previous job with the Depart-

ment of Energy. As Corporate Contracts Administrator, Foster

was responsible for the management of all of Arcata’s govern-

ment contracts.

In August 1981, Arcata hired James Enus as Project Manager

for its contract with the Air Force at Nellis Air Force Base. Enus

was given full authority to hire personnel subject only to budget-

ary constraints. The following April, Enus reorganized the Nellis

staff and subsequently hired Bill Hamby as Contract Compliance

Manager to be responsible for the day to day operations of the

Air Force contract. Hamby had been a weapon systems officer in

the Air Force and an operations officer at Nellis. He had received

a Master’s degree in Public Administration and was employed as

a contracting officer for a large government contractor. Hamby

was hired at a starting salary of about $37,000 per year.

At the time the decision was made to hire Hamby, appellant

was involved in the preparation of a proposal for the renewal of

the Fort Ord contract. Her salary, due to a recent adjustment,

was $30,000 per year.

Arcata lost its Fort Ord contract in July 1982, and in Septem-

ber, appellant was notified of her termination to be effective in

January 1983. In November, Foster filed a complaint with the

> —___ Foster v. Akc ta Associates, INC.

Equal Employment Opportunity Commission (EEOC), charging

sex and age discrimination because she had not been offered

Hamby’s job in Nevada, and had not been paid Hamby’s salary

for her work on the Fort Ord contract.

Appellant continued her employment through the end of the

year and was instrumental! in phasing out the company’s opera-

trons in Monterey and phasing in Arcata’s successor. Like most

Arcata employees who lost their jobs when the Fort Ord contract

was not renewed, appellant and her husband, a retired naval ofti-

cer who was also an employee, were offered positions by the suc-

cessor. Foster’s husband accepted the offer, but she refused

because the hours did not meet her needs.

In February 1983, however, Arcata hired Foster as Assistant

to the Program Manager for the Nellis Air Force Base contract

at a salary of $37,500 per year, the same as Hamby was receiv-

ing. After only six weeks, appellant resigned due to what she

claimed were incidents of hostility resulting from her lawsuit.

On April 25, 1983, the EEOC issued to appellant a Notice of

Right to Sue. This lawsuit was filed on June 22, 1983, charging

sex and age discrimination in violation of Title VII of the 1964

Civil Rights Act (42 U.S.C. § 2000e), the Age Discrimination in

Employment Act (ADEA) (29 U.S.C. § 623), the Equal Pay Act

(29 U.S.C. § 206(d)), and the 1866 Civil Rights Act (42 U.S.C.

§ 1981). Appellant requested back pay, damages, attorney's fees

and costs.

On January 11, 1984, Arcata moved for summary judgment.

The district court granted the motion on June 13, 1984, finding:

(1) Appellant’s claim of age and sex discrimination

failed to state a claim under 42 U.S.C. § 1981, which

prohibits only race discrimination.

(2) Appellant's Equal Pay Act claim failed because

appellant did not show that Arcata’s separate offices

near Fort Ord and Nellis Air Force Base were “the

same establishment.”

Foster v. Arcara Assocrares, EX

(3) Appellant did not meet her burden of establishing

a prima facie case of sex or age discrimination by pro

ducing evidence that she was qualified for Hamby’s

position. Moreover, even if she had met her burden,

Arcata demonstrated legitimate nondiscriminatory

business reasons for not offering her the Nellis job

(4) Appellant failed to produce objective evidence ol

intentional wage discrimination to support her Title VII

claim.

Foster does not appeal the district court's ruling on her § 1981]

claim, but contends that the trial court incorrectly resolved

against her certain material issues of fact when it granted sum

mary judgment on the other issues

We consider first, in Part Il, Foster's claims of unlawful dis-

crimination in hiring. We turn in Part III to her claims of wage

discrimination in hiring. Finally, in Part [V, we consider her dis-

covery claim.

If.

CLAIMS OF DISCRIMINATORY HIRING

TITLE Vil AND ADEA

Plaintiffs alleging discrimination under Title VII and the

ADEA may proceed according to either of two theories: dispa-

rate treatment or disparate impact. See /nternational Brother-

hood of Teamsters v. United States, 421 U.S. 324, 335-36 n.15,

97 S.Ct. 1843, 1854-55 n.l5 (1977) (Title VII); Sakellar \

Lockheed Missiles & Space Co., No. 83-2701, slip op. at 5-8 (9th

Cir. July 19, 1985) (ADEA); Casillas v. United States Navy,

735 F.2d 338, 342 (9th Cir. 1984) (Title VII); Equal Employ-

ment Opportunity Commission v. Borden's, Inc., 724 &.2d 1390,

1392 (9th Cir. 1984) (ADEA). The disparate treatment theory

is appropriately employed by aggrieved employees claiming that

they were intentionally treated less favorably because of their

race, color, religion, sex, or national origin under Title VII,

——————EEeEeEeEeyEeEeEeEOEeEe—eEeEeEeeeeeeee

—<—<—— = Oe a ee ae ee eee

& Foster Vv. ARCATA ASSOCIATES, INC,

Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98

S.Ct. 2943, 2949 (1978) (quoting Teamsters, 431 U.S. at 335

n.15), or because of their age under the ADEA, Borden's, 724

F.2d at 1392. Proof of discriminatory motive ts required under a

disparate treatment theory, although such motive may be

inferred in some situations from the mere fact of differences in

treatment. Teamsters, 431 U.S. at 335 n.15, 97 S.Ct. at 1854

n.15. In contrast, disparate impact cases typically involve

employment practices which, although facially neutral, fall more

harshly on one group than another and cannot be justified by

business necessity. See United States Postal Service Board of

Governors v. Aikens, 460 U.S. 711, 713 n.1, 103 S.Ct. 1478,

1481 n.1 (1983); Teamsters, 431 U.S. at 335 0.15, 97 S.Ct. at

1855 n.15; Casillas, 735 F.2d at 342.

[1] Foster does not argue discrimination on the besis of dispa-

rate impact; she claims that Arcata intentionally deprived her of

an employment opportunity because of her sex and age. In the

leading case of McDonnell Douglas Corp. v. Green, 411 U.S.

792,93 S.Ct. 1817 (1973), the Supreme Court set forth the basic

allocation of burdens and the order of proof for Title VII cases

alleging disparate treatment. Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093

(1981). The same analysis applies to disparate treatment claims

arising under the ADEA. Steckl v. Motorola, Inc., 703 F.2d 292,

393 (9th Cir. 1983); Douglas v. Anderson, 656 F.2d $28, 531

(9th Cir. 1981). Under McDonnell Douglas, the plaintiff, who

bears the burden of persuading the trier of fact by a preponder-

ance of the evidence that there has been discrimination, nust

first make out a prima facie case of discrimination. If the plaintiff

succeeds, the duty of going forward shifts to the defendant to

articulate some legitimate, nondiscriminatory reason for the

adverse employment decision. Should the defendant succeed in

articulating a nondiscriminatory explanation, the plaintiffs

advantage is neutralized and the responsibility then reverts to

plaintiff to negate the defendant’s excuse by showing that the

proffered reason is but a pretext for discrimination. This respon-

sibility of preponderating merges with the plaintiffs ultimate

burden which is to persuade the court that she has been a victim

FOSTER V. ARCATA ASSOCIATES, ING. 9)

of intentional discrimination. 411 U.S. at $02-04, 93 S.Ct. at

1824-25; Aikens, 460 U.S. at 715, 103 S.Ct. at 1481-82; Burdine,

450 U.S. 248, 252-53, 101 S.Ct. 1080, 1093; Hagans v. Clark,

752 F.2d 477, 481 (9th Cir. 1985). The fact finder must then

resolve any ultimate factual dispute about whether the deten-

dant’s conduct was discriminatory within the meaning of Title

Vif. Aikens, 460 U.S. at 715, 103 S.Ct. at 1482; Wall v.

National Railroad Passenger Corporation, 718 F.2d 906, 909

(9th Cir. 1983).

On a motion for summary judgment in discrimination cases,

the McDonnell Douglas order of proof and shifting of burdens

must be viewed in light of the traditional test for granting sum-

mary judgment. See Steck/, 703 F.2d at 393. That test is whether

the moving party has demonstrated that there is no genuine issue

of material fact and that it is entitled to judgment as a matter of

law. Alaska v. United States, 754 F.2d 851, 853 (9th Cir. 1985).

Although courts are generally cautious about granting summary

judgment when motivation and intent are at issue, as in Title VI]

and ADEA cases, such relief may nonetheless be appropriate.

Steckl, 703 F.2d at 393. One purpose of the allocation of burdens

in Title VIL and ADEA actions is to enable the district courts to

identify meritless suits and dispense with them short of trial. /d.,

at 393-94; Anderson, 656 F.2d at $35. Summary judgment, judi-

ciously applied, is an appropriate vehicle for accomplishing this

objective.

The task of this court when reviewing the grant of summary

judgment ts identical to that of the trial court. We must deter-

mine de novo, while viewing the evidence in the light most favor-

ubie to the appellant, whether Arcata has demonstrated the

absence of any genuine issues of material fact and its entitlement

to judgment as a matter of law. Alaska, 754 F.2d at 853.

A. Prima Facie Case of Discrimination

To establish a prima facie case of intentional diserimination

sufficient to survive a motion for summary judgment, appellant

must identify actions by Arcata that if unexplained, give rise to

iia aaa

ee a

10 Foster ¥. ARCATA Associviis, ENC.

an inference of discriminatory conduct. Furnco, 438 U.S. at 576,

95 S.Ct. at 2949; Teamsters, 431 U.S. at 358,97 S.Ct. at 1866

foster ts not required to prove her prima facie case by a prepon-

derance of the evidence on motion for summary judgment. At

this stage of the proceedings, the district court cannot try issues

of fact or resolve them in favor of one party or the other. Rather,

the court may only determine whether the plaintili bas produced

evidence sullicient to support a reasonable inference of the exis

tence of the fact at issue.’ Hence, appellant need only adduce

facts which, if believed, could generate the inference that she was

probably denied the job opportunity at Nellis because Arcata

applied discriminatory age or sex criteria in its decision to fill the

position. See Steckl, 703 F.2d at 393. Mere assertions of discrim-

inatory motive and intent, however, are inadequate. Jd. A purty

opposing summary judgment must, in a manner “as would be

admissible in evidence,” set forth “specific facts showing that

there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).

The facts that a plaintiff must assert to raise an inference of

discrimination under Title VII and the ADEA have not been pre-

determined. In McDonnell Douglas, the Supreme Court identi-

fied one appropriate model for establishing a prima facie case of

disparate treatment.? The Court, however, has repeatedly noted

that the McDonnell Douglas four-part test is neither exclusive

Min Burdine, the Court noted that McDonnell Douglas should have made it

apparent that in the Tithe VI context, “prima facie case” ts used to denote the

establishment of “a legally mandatory, rebuttable presumption,” rather than to

“deseribe the piaintill’s burden of producing enough evidence to permit the trier

of fact to infer the fact at issue.” In the context of a motion for summary judg-

ment, however, “prima facie case” does refer to the plaints burden of produc-

tion

"The disparate treatment model for a prima facie case of discrimination

described by the Supreme Court in AfcDonnell Douglas required the plainull to

show

(1) that he belongs to a racial minority: (i) that he applied and was

qualified for a job for which the employer was seeking applicants; (il)

that. despite his qualifications, he was rejected; and (iv) that, after his

reyecuion, the position remained open and the employer continued to

seckh applicants from persons of complainant's qualifications

41! LS. at 802 (footnote omitted)

ET ee ae ee gs) eee

Foster Vv. ARCATA ASSOCIATES, ENC. 1]

nor rigid, and that the facts suflicient to raise an inference of dis-

crimination necessarily will vary depending upon the situation.

McDonnell Douglas, 411 U.S. at $02 n.13,93 S.Ct. at 1824 n.1 3;

Burdine, 450 U.S. 253 n.6, 101 S.Ct. at 1093 n.6; Furnco, 438

U.S. at 575-76, 98 S.Ct. at 2949.

[2] In this case, appellant demonstrated that she is a member

of a protected class based on her age (fifty-five at the time Arcata

hired Hamby) and sex (female). She also succeeded in raising an

issue of fact concerning whether she was qualified for the position

at Nellis. We disagree with the district court on this point. The

district court inferred that Foster was not qualified for the Nellis

position because she produced no evidence that she was as

qualified for the position as Hamby. In the context of a prima

facie case of discrimination on motion for summary judgment,

however, Foster was required only to produce evidence sufficient

to indicate a genuine factual dispute about whether she possessed

the minimum qualifications for the job, not whether she was as

qualified or more so than the person whom Arcata selected. A

review of the record has convinced us that the appellant met this

requirement.

The district court found that James R. Enus, who was

employed by Arcata as the Program Manager for the Nellis Air

force Base contract, created the position of Contract Compli-

ance Manager because of his perceived need for a person with a

technical background and familiarity with Nellis weapons sys-

tems and procedures who could provide close liaison with the Air

Force. This conclusion is supported by the declarations of Enus

and Buck Wong, Chief Executive Officer of Arcata, in support of

Arcata’s motion for summary judgment, and by Wong’s deposi-

tion testimony. In his declaration, Enus stated that he considered

Hamby “uniquely qualified” for the position. Hamby possessed

experience as a Weapon systems officer in the Air Force and had

been employed as an operations officer for a large government

contractor approximately three years. In addition, he had earned

a Master’s degree in Public Administration.

Appellant, in contrast, was never a member of the armed

forces, but she did have approximately twenty-five years of zov-

SR ee ENE Ee RN Ne Eee ee ee ey Lee te eee

sh ast

Be ne a

12 Foster V. ARCATA Associates, INC.

ernment contracting experience, mostly high level. In her deposi-

tion and subsequent declaration in opposition to Arcata’s motion

for summary judgment, Foster states facts which, if true, could

justify an inference that she was qualified for Hamby’s position.

For example, appellant claims that she had been performing al!

contractual functions for both the Nellis and the Fort Ord proj-

ects for one-and-one-half years in her position as Corporate Con-

tracts Administrator, and that Hamby was hired to do the same

work, but on a smaller scale. Nonetheless, Hamby, younger and

a man, was hired at a salary approximately $7500 more than she

was receiving. Appellant also asserted that after she filed her dis-

crimination compiaint in November 1982, Hamby’s job title was

changed to give the impression of additional responsibility. She

challenged Arcata’s contention that her government contracting

experience was limited solely to procurement, and submitted her

resume of qualifications as proof that her expertise was of a

larger scope than Arcata described. Appellant argued that the

fact that Arcata submitted her name and resume as part of its

proposal for the Nellis contract, further indicates her qualitica-

tion for the position.

{3} Appellant thus satisfied her durden of presenting evidence

suflicient to generate a genuine issue of material fact about her

qualification for the Nellis position. The disputed factual issues

are whether the position filled by Hamby required technical

expertise and whether she possessed the requisite Gualifications

for that position. Such factual issues may not be resolved in favor

of the moving party on summary judgment when, as here, the

adverse party has supported tts position by evidentiary materials

us provided in Rule 56. It is enough that these materials consist

of the party's own sworn deposition testimony and declaration in

opposition to the motion for summary judgment.

In McDonnell Douglas, the court required the plaintiff to dem-

onstrate not only that he was qualified for the job opportunity he

was denied, but also that he applied for that job. Foster admits

that she did not apply for Hlamby’s job. She claims, however, that

the reason she did not apply was because the tob opening was

intentionally kept secret from her. Arcata denies appellant's

a Mw.

FOSTER Vo ARCATA ASSOCIATES, INC. 13

claim of secrecy, but does not challenge her contention that she

was not made aware of the opening.

[4] We need not reach whether Foster's failure to apply for the

job position is fatal to her prima facie case. Even if the failure by

Arcata to notify Foster of the opening might give rise to an infer-

ence of discrimination consistent with the other inferences we

have found, our consideration of the second and third prongs of

the McDonnell! test is dispositive of this issue.

B. Legitimate Nondiscriminatory Reasons

[5] Arcata alleges three nondiscriminatory reasons for its deci-

sion to hire Hamby for the Nellis position. First, the company

contends that Foster was never considered for the position

because she had previously communicated a willingness to work

only in Monterey. This claim finds support in Foster's own depo-

sition testimony in which she stated that when Arcata inter-

viewed her in October 1980, she conditioned her employment on

being stationed in the Monterey Peninsula area. In a letter to

Buck Wong in June 1981 pertaining to an increase in her level of

compensation, appellant confirmed that she would aceept a posi-

tion only in Monterey. That letter also stated that appellant had

agreed to travel back and forth to Nellis or Burlingame despite

the personal hardships that such travel would cause.

Buck Wong’s declaration in support of Arcata’s summary

judgment motion is consistent with Foster's deposition testimony.

Wong stated that when Foster was hired, she “made it clear” that

she would accept the position only if stationed in Monterey.

Wong also stated that he agreed to that arrangement, although

Foster was on the corporate staff and the company’s corporate

headquarters were located in Burlingame, in return for Foster's

acceptance of a $28,000 per year salary. James R. Enus, whom

Wong claims was solely responsible for hiring Hamby, stated in

his declaration that he was unaware that Foster wished to be con-

sidered for the position. Enus said that Foster “never expressed

any interest in filling the position filled by Mr. Hamby, nor did

she ever indicate to me any desire to relocate to Nellis. [ never

considered Ms. Foster as a candidate for the job * * *.”

i4 Foster ¥. ARCATA ASSOCIATES, EN¢

16] Second, Arcata claims that its decision was nondiscrimina

tory because Foster was not qualified for the position, or at least

if she did have the minimum qualifications, Hamby was the more

qualified candidate.

[7] Third, the company contends that when the decision was

being made to hire a Contract Compliance Manager at Nellis,

Foster could not have been spared from her work in Monterey

because she was an integral part of the team responsible for pre-

paring the Fort Ord contract proposal. Thus, sound business

judgment was the basis for its hiring decision,

We are satisfied that Arcata met its burden of articulating a

legitimate, nondiscriminatory reason for not considering or hir-

ing Foster for Hamby’s position. Having found that Arcata

stated facts which, if true, were sufficient to rebut the inference

of discrimination, the burden now returns to Foster to demon-

strate that Arcata’s explanation was but a pretext. Burdine, 450

U.S. at 253, 101 S.Ct. at 1093; McDonnell Douglas, 411 U.S, at

804, 93 S.Ct. at 1285.

C. Pretext

Appellant challenges Arcata’s claim that she was not consid

ered for the job at Nellis because she had made herself unavail-

able by communicating her intention only to work in Monterey.

In her declaration in opposition to Arcata’s motion for summary

judgmeni, appellant stated that she only expressed a preference

for working in Monterey, and not that she would refuse employ-

ment elsewhere. This statement contradicted her prior deposition

testimony that she conditioned her employment on being located

in Monterey, and that the condition was repeated in her June

1981 letter to Buck Wong. Foster characterized the purpose of

her letter to Wong as an effort to “clear the air and bring to

Wong's attention the inequities [in her salary} and not to confirm

that | would only work in Monterey.” Foster stated that

Arcata knew | needed and wanted to work, and

assigned me to jobs in Nellis, Sacramento and Burlin-

Foster Vv. ARCATA ASSOCIATES, INC,

game. I expressed interest in working at Burlingame

and Nellis if | were properly compensated. These dis-

cussions were held with Barnett and Smothers, both

Vice Presidents of Arcata.

Appellant also contends that she expressed an interest in the Nel-

lis position by the fact that she had been responsible for manage-

ment of the Nellis centract and had worked at Nellis when

required during 1980-82.

The district court disregarded appellant's declaration in oppo-

sition to the motion for summary judgment to the extent that it

wus contrary to her deposition testimony, based on our decision

in Radobenko v. Automated Equipment Corp., 520 F.2d 540

(9th Cir. 1975). In that case, this court refused to permit the

appellant to create his own issue of fact by an affidavit contra-

dicting his prior deposition testimony. We quoted a decision by

the Second Circuit in which that court noted:

[jf a party who has been examined at length on

deposition could raise an issue of fact simply by submit-

ting an affidavit contradicting his own prior testimony,

this would greatly diminish the utility of summary

judgment as a procedure for screening out sham issues

of fact.

520 F.2d at 544 (quoting Perma Research & Developmeat Co.

v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969)).

We agree with the district court that Radobenko is apposite.

Appellant's declarations that she only expressed a preference for

working in Monterey and did not refuse to work clsewhere are in

direct contradiction with her deposition testimony that she condi-

tioned her initial employment on being in Monterey and contin-

ued to adhere to that condition in June 1981. Consequently, we

consider as credible only appellant’s deposition testimony on this

subject. Thus, for appellant to raise an inference that Arcata’s

proflered reason for hiring Hamby was pretextual, she must pres-

ent evidence sufficient under Rule 56 to indicate that, despite her

16 Foster v. ARCATA ASSOCIATES, INC.

original expression of a willingness to work only in Monterey, she

subsequently was effective in communicating her availability for

work at Nellis to the person or persons responsible for the hiring

decision. This she did not do.

The uncontradicted record shows that Enus was responsible

for hiring Hamby, and appellant failed to articulate facts indicat-

ing that Enus was aware that she was interested in the position.

Buck Wong testified in his deposition, and both he and Jim Enus

stated in their declarations, that Wong, as Chief Executive Offi-

cer of Arcata, had delegated to Enus full authority to hire staif

in connection with the Nellis contract, subject only to budgetary

constraints. Appellant challenged these statements by Wong and

Enus by charging that Enus was required to, and did, obtain

Wong’s approval for his decision tu hire Hamby.

Although Enus stated in his declaration that he met with

Wong, Barnett, and Smothers to discuss his reorganization plan

and the importance of having an on-site assistant at Nellis, he

also stated

* * * | was not specifically instructed to ‘hire Mr.

Hamby or anyone else. It was my understanding that !

could use my own judgment in hiring an assisiant, and

that my only constraint was to stay within the contract

budget. At no time during the meeting did we discuss

Lynn Foster’s age or sex, or discuss Ms. Foster in any

manner at all regarding a relocation to Nellis AFB.

Enus further stated that Foster never expressed any interest in

filling Hamby’s position nor did she indicate to him any desire to

relocate to Nellis. Consequently, Enus did not even consider Fos-

ter for the position. Appellant has not produced any evidence to

indicate otherwise.

Appellant attempts to argue that since she had told Smothers

and Barnett that she was available for work at Nellis, this com-

munication was sufficient to create an inference that she was con-

sidered and rejected because of her age and sex. This argument

Foster Vv. ARCATA ASSOCIATES, INC. 17

fails, however, because appellant did not present facts showing

that Smothers or Barnett ever communicated this information to

E:nus or Wong. Both Enus and Wong denied any knowledge of

such information. Moreover, appellant produced no evidence to

contradict the statements of Wong and Enus indicating that

Eenus and Enus alone, selected Hamby.

[8] We conclude that the reason Foster was not considered for

Haumby's position was not due to any discriminatory animus

based on her age or sex but rather, because she failed to make her

availability for work at Nellis known to Enus or Wong. Title VII

does not require an employer to monitor continuously the

job-related desires and preferences of its employees. Employers

have no obligation to canvass their employees for preference

changes before filling job openings, as appellant in effect argues.

Employees must assume responsibility for making application for

positions when the position openings are known. In cases where,

as here, the job opening was not announced, then the employee

must demonstrate that the employer was aware of her availabil-

ity for the position. To survive a motion for summary judgment,

the employee is required to articulate specific facts indicating

that despite the employer's awareness of her job availability, she

was not hired because of impermissible considerations under

Title VIl and the ADEA. Foster failed to meet this burden by

presenting facts showing that Arcata’s legitimate nondiscrimina-

tory reason for not hiring her, which was her stated position of

unavailability for the job, was pretextual.

Because Foster failed to produce evidence from which we

could infer that Arcata’s reason for not considering her was pre-

textual, we need not address whether pretext was demonstrated

in connection with Arcata’s other claimed reasons. Accordingly,

we affirm the decision of the district court on this issue.

18 Foster Vv. ARCATA ASSOCIATES, INC.

IL.

CLAIMS OF DISCRIMINATORY WAGES: EQUAL PAY

ACT, TITLE VII, AND ADEA

A. Equal Pay Act

[9] Appellant also challenges the district court’s dismissal of

her claim under the Equal Pay Act, 29 U.S.C. § 206(d)(1)

(1982).* That statute prohibits an employer from engaging in

sex-based wage discrimination by paying different wages to

employees of different sexes within any establishment for jobs

that require substantially equal skill, effort and responsibility,

and which are performed under similar working conditions.

Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct.

2223, 2228 (1974); Spaulding v. University of Washington, 740

F.2d 686, 696-699 (9th Cir.), cert. denied, 105 S.Ct. 511 (1984);

Equal Employment Opportunity Commission v. Maricopa

County Community College District, 736 F.2d 510, 513 (9th Cir.

1984); Hein v. Oregon College of Education, 718 F.2d 910, 913

(9th Cir. 1983); Gunther v. County of Washington, 623 F.2d

1303, 1309 (9th Cir. 1979), aff'd on other grounds, 452 U.S. 161

(1981). The district court determined that appellant was pre-

cluded as a matter of law from succeeding on her Equal Pay Act

claim because Arcata’s Nellis and Fort Ord offices were distinct

and separate establishments. We review the court’s grant of sum-

mary judgment on this basis de novo and aflirm.

‘

“Phe bqual Pay Act, 29 U.S.C. § 206, provides in relevant part

(d)(1) No employer having employees subject to any provisions of

this section fof the Fair Labor Standards Act] shall discriminate,

within any establishment in which such employees are employed

between employees on the basis of sex by paying wages to employees

in such establishment at a rate less than the rate at which he pays

Wages to employees of the opposite sex in such establishment for equal

work on jobs the performance of which requires equal skill, effort, and

responsibility, and which are performed under similar working condi

tions, except Where such payment ts made pursuant to (1) a seniority

system, (11) a merit systeny, (it) a system which measures carnings by

quantity or quality of production: or (iv) a differential based on any

other factor other than sex

Foster Vv. ARCATA ASSOCIATES, ING. 19

The term “establishment” ts not expressly defined in the Fair

Labor Standards Act, 29 U.S.C. §§ 201-219 (1982); however,

the Supreme Court has held that it refers to a “distinct physical

place of business.” as opposed to an entire business or enterprise.

A. H. Phillips, Inc. v. Walling, 324 U.S. 490, 496, 65 S.Ct. 807,

8$O8 (1945) (construing “retail establishment” exemption of the

Fair Labor Standards Act, 29 U.S.C. § 213(a)(2)). This inter-

pretation was adopted by the Secretary of Labor for purposes of

administering the Equal Pay Act. 29 C.F.R. 800.108 (1982);

Jacobson vy. Pitman-Moore, dnc., 573 F Supp. 565, 568 (D.

Minn. 1983); Gerlach v. Michigan Bell Telephone Co., 448

F.Supp. 1168, 1172 (E.D. Mich. 1978). When considering the

single establishment issue, federal courts have consistently

rejected the extension of the statutory establishment requirement

to separate offices of an employer that are geographically and

operationally distinct. Barte/t v. Berlitz School of Languages of

America, Inc., 698 F.2d 1003, 1007 (9th Cir.), cert. denied, 104

S.Ct. 277 (1983); Jacobson, 573 F.Supp. at 567-68; Alexander

v. University of Michigan-Flint, S09 F.Supp. 627, 629 (E.D.

Mich. 1980); Wetzel v. Liberty Mutual Insurance Co., 449

F.Supp. 397, 405-07 (W.D. Pa. 1978); Gerlach, 448 F.Supp. at

1172: Schultz v. Corning Glass Works, 319 F.Supp. 1161,

1163-64 (W.D. N.Y. 1970), modified on other grounds, 474

F.2d 226 (2nd Cir. 1973), aff'd, 417 U.S. 188 (1974); cf. Brennan

v. Goose Creek Consolidated Independent School District, 519

F.2d 53, 58 (Sth Cir. 1975) (single establishment based upon

highly centralized control of hiring, wages, work assignments,

scheduling and daily job duties in local elementary school dis-

trict).

In Jacobson, 573 F.Supp. 565 (D. Minn. 1983), a case similar

to this one, the court held that a local branch of a company with

offices nationwide was a “separate establishment,” and thus

plaintiff's salary could be compared only with other employees in

the local office for purposes of establishing an Equal Pay Act vio-

lation. 573 F.Supp. at S568. Similarly, in Gerlach v. Michigan

Bell Telephone Co., 448 F.Supp. 1168 (D.C. Mich. 1978), each

individual office of the telephone company was considered a

“separate establishment.” We had occasion to consider the issue

20 Foster V. ARCATA Associaiis, INC.

in Barteit v. Berlitz School of Languages of America, Inc., 698

F.2d 1003 (9th Cir. 1983), and ruled that language schools

owned by the same corporation were “separate establishments.”

Thus, the plaintiffs, who were female directors of Berlitz schools,

could not succeed in establishing an Equal Pay Act claim by

comparing their salaries with the salaries paid to male directors

at other Berlitz schools. /d. at 1005-07.

[10] We agree with the district court that, as a matter of iaw,

Foster has failed to produce facts sufficient to indicate that

Arcata’s Nellis and Fort Ord offices are the same establishments

under the Equal Pay Act. Thus, she cannot establish a violation

of the Act by comparing her salary to Hamby’s. Arcata’s Nellis

and Fort Ord offices were hundreds of miles apart and operation-

ally distinct. Although the Nellis and Fort Ord contracts were

both negotiated from Arcata’s corporate headquarters in Burlin-

game, California, the day-to-day contract performance occurred

at the separate sites. Each office was independently managed for

ditferent customers (Air Force and Army) with different opera-

tional needs. The Nellis facility provided the Air Force with

on-site engineering and other technical support services, whereas

the Fort Ord project provided the Army with primarily experi-

mental and managerial support. In addition, the Nellis and Fort

Ord projects were operated under separate budgets and were

managed by separate project managers who had independent

decisionmaking authority over members of their staff.

{11] Appellant also has failed to articulate specilic facts dem-

onstrating that male employees other than Hamby, and who

worked within the same establishment as she, performed sub-

stantially equal work for which they were paid more. Conse-

quently, we find no triable issues of fact on appellants Equal Pay

Act claim, and affirm the judgment of the district court.

B. Title VII

Appellant also claims intentional wage discrimination because

of her sex:in violation of Title VII. Section 703(a) of that statute

makes unlawful differentials in wages on the basis of a person’s

Foster \¥. ARCATA ASSOCIATES, ING.

sex.* County of Washington, Oregon v. Gunther, 452 U.S. 161,

168, LOL S.Ct. 2242, 2247 (1981); Spaui/ding, 740 F.2d at 700.

In Guather, the Supreme Court affirmed our holding, 623 F.2d

at 1313, that a Tithe VET cause of action exists outside the scope

of the Equal Pay Act. The court, however, did not determine “the

precise contours of lawsuits challenging sex discrimination in

compensation under Title VIE.” 452 U.S. at 181, 101 S.Ct. at

2254.

We have held that the coverage of Tithe VIE is much broader

than that of the Equal Pay Act. Barte/t, 698 F.2d at 1005. Unlike

the Equal Pay Act, Title VII does not contain a “single

establishment” requirement. /d. at 1007. However, when a Title

VII claimant contends that she has been denied equal pay for

substantially equal work, as here, Equal Pay Act standards

apply.? Gunther v. County of Washington, 623 F.2d 1303, 1318

(9th Cir. 1979), aff'd, 452 U.S. 161, 101 S.Ct. 2242; Piva v

Yerox Corp., 654 F.2d S591, 598 & n.5 (9th Cir. 1981) (citing

Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974)).

The Equal Pay Act standards require the plaintiff to bear the

initial burden of showing that: (1) the work of the employees of

one sex required the exercise of substantially equal skill, effort,

and responsibility and was performed under working conditions

*Section 703(a) of Tithe VIL of the Civil Rights Act of 1964 makes it unlawful

or anemployer “to discriminate against any individual with respect to his com

pensation, terms, conditions, or privileges of employment” or to “limit, segre-

gate, or classify his employees or appheants” because of sex. 42 USA N

2000-2 (a)

"When a Tithe VIE wage discrimination claim is not based on an equal work

theory, it must be analyzed separately uader Tithe VIP standards. Gunther, 623

bo Sd at L3ES: see Spaulding, 740 b 2d at 700-709 (applying disparate treatment

tnd disparate impact analyses)

Poster also advaneed a “comparable worth” theory in support of her disparate

treatment model of wage discrimination under Tithe VIL This district court

properly ruled against this clam. Even if the “comparable worth” theory can

sustain a Tithe Vib action, Poster produced no objective evidence indicating

sex-bused wage discrimination. See American Federation of State, County, and

Vuncipal Emplovees v. Washington, Nos. 84-3560, 84-3590, slip op. at 11-13

(9th Cir. Sept. 4, 1985)

22 Foster Vv. ARCATA ASSOCIATES, ENC,

similar to that of employees of the opposite sex; and (2) the pay

of men and women was unequal. Piva, 654 F.2d at 598. The basic

allocation of burdens and the order of proof for Title cases alleg-

ing disparate treatment, discussed supra at —, apply here. For

purposes of summary judgment, Foster need only produce evi-

dence sufficiently specific to support a reasonable inference that

the facts required for her prima facie case are true. The burden

then shifts to the employer to demonstrate that the unequal pay

results from a merit sysiem, seniority system, a system linking

earnings to productivity, or any factor other than sex. /d. at

598-99: Corning Glass Works, 417 U.S. at 196,94S.Ct. at 2229;

42 U.S.C. § 2000e-2(h).

[12] The district court rejected appellant’s claim because it

found that she failed to set forth evidence suflicieni to establish

a prima facie case of intentional wage discrimination. We agree.

Although Foster succeeded in showing that she was paid $7500

less as Corporate Contracts Administrator than Hamby was paid

as Contract Compliance Administrator for the Nellis contract,

she did not present facts from which an inference can arise that

her position and Hamby’s were substantially equal.

We evaluate whether appellant established the basis for an

inference that her job and Hamby’s required the exercise of sub-

stantially equal skill, effort, and responsibility, by considering

actual job performance and content, not job titles, classifications

or descriptions. Gunther, 623 F.2d at 1309. The record indicates

that the two positions were created at different times, for sub-

stantially different purposes, and thus did not require the same

kinds of skills and performance.

Arcata acquired the Nellis contract in 1979, the purpose of

which was to provide the Air Force with “Operation and Mainte-

nance of Range Instrumentation.” This required Arcata to pro-

vide primary engineering and other technical support services.

Initially, the contract concerned a 2.4 million dollar project. In

October 1980, Arcata was awarded the 8.4 million dollar Fort

Ord contract. That contract was to provide a Scientific Support

Laboratory for the Army, which involved primarily experimen-

tal, managerial and support services.

Foster ¥. ARCATA ASSOCIATES, INC. 23

Foster was hired as Corporate Contracts Adininistrator at

approximately the same time as the Ford Ord contract was

awarded. She was responsible for the management of all Arcata’s

government contracts, including insuring compliance with con-

tract requirements and negotiating contract terms and condi-

tions. Her work occasionally required her to travel to the

corporate headquarters in Burlingame, to Nellis, and to Sacra-

mento, although her permanent station was in Monterey.

In late 1981, the government notified Arcata that it would be

accepting competitive bids on the Fort Ord contract. Arcata was

out bid in July 1982, and the contract was phased out by the end

of that year. In contrast, Arcata’s Nellis contract had grown sub-

stantially. By 1983, it was valued at about 5.3 million.

Hamby was hired in May 1982, when the future of the Fort

Ord contract was uncertain. He was hired by James E:nus to per-

form the day-to-day management of the Nellis contract. Essen-

tially, Hamby was to be a “trouble shooter,” responsible for the

direct handling of problems stemming from the contract opera-

tions. His job thus required constant interaction with the Air

Force and permanent station in the Las Vegas area. These

requirements were substantially different from those of Foster’s

job.

{13] We conclude that the district court was correct in deter-

mining that, as a matter of law, appellant could not succeed in

demonstrating that she was the victim of intentional wage dis-

crimination under Title VII. Even though she was paid less than

Hamby, her claim cannot succeed because the responsibilities of

their positions were not substantially equal.

C. ADEA

[14] Foster also claims intentional wage discrimination because

of her age in violation of ADEA, 29 U.S.C. § 623(a)(1). Because

Foster failed to present facts from which an inference can arise

that her position and Hamby’s were substantially equal, see dis-

cussion supra Part Ill. B, we agree with the district court that

24 Foster Vv. ARCATA ASSOCIATES, INC.

Foster failed to estabiish a prima facie case of intentional wage

discrimination.

[V.

DISCOVERY CLAIM

[15] Appellant finally contends that the district court abused its

discretion in proceeding to summary judgment when discovery

had not been completed. We have stated that a district judge has

wide latitude in*controlling discovery, and its rulings will not be

overturned in the absence of a clear abuse of discretion. White v.

City of San Diego, 605 F.2d 455, 461 (9th Cir. 1979); Canadian

American Oil Co. v. Union Oil Co., 577 F.2d 468, 473 (9th Cir. ),

cert. denied, 439 U.S. 912 (1978).

We reject appellant’s claim because she failed to follow the

proper procedures under the Federal Civil Rules of Procedure for

obtaining a continuance or other appropriate discovery order

when opposing a motion for summary judgment. Under Rule

56(f),° a party may apply for a continuance of the proceedings to

permit further discovery. Appellant made no such motion. Con-

sequently, we find that the district court did not abuse its discre-

tion in granting Arcata’s motion for summary judgment.

Thi-Hawaii v. First Commerce Financial Corporation, 627 F.2d

991, 994 (9th Cir. 1980).

Sed. R. Civ. P. So(f) provides:

* * * Should it appear from the allidavits of a party opposing the

motion [for summary judgment} that he cannot for reasons stated

present by affidavit facts essential to justify his opposition, the court

may refuse the application for judgment or may order a continuance

to permit aflidavits to be obtained or depositions to be tuken or discov-

ery to be had or may make such other order as ts just.

bos r sv. ARCATA Associxiis, INc.

CONCLUSION

Appellant has failed to raise genuine issues of fact concerning

her claims of intentional hiring discrimination under Title VII or

the ADEA. Her Equal Pay Act claim also fails because she did

not articulate facts which, if true, wouid indicate that men were

paid more in the same establishment for substantially equal

work. Additionally, because appellant did not show that her job

and Hamby’s job were “substantially equal,” she cannot succeed

in proving a wage discrimination claim under Title VII. We have

found no abuse of discretion in the district court’s discovery rul-

ing.

The judgment of the district court is AFFIRMED.

APPENDIX "C"

FILED

NOV 25, 1985

CLERK, U. S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LYNN FOSTER, No. 84-2218

D.C. BO.

C-83-20084 WAI

Plaintiff-Appellant,

)

Vv. )

) ORDER

ARCATA ASSOCIATES, )

INC., )

)

Defendant-Appellee. )

)

Before: WALLACE and POOLE, Circuit

Judges, and STEPHENS, District Judge.

The petition for rehearing is

denied,

DECLARATION CF MAILING

I, the undersigned, declare:

I am a citizen of the United States,

employed in Monterey County, State of

California, over the age of 18 years,

and not a party to the above-entitled

cause. My business address is Fremont

Professional Center, Seaside, CA 93955.

I served the foregoing document by

depositing a true copy therecf in the

United States mails in Seaside, State

of California, on January 16, 1986,

enclosed in a sealed envelope with the

postage thereon fully prepaid, addressed

as follows:

John C. Cook

Pillsbury, Madison & Sutro

Attorneys at Law

225 Bush Street

San Francisco, CA 94120

Circuit Judges WALLACE & POOLE,

and STEPHENS, District Judge

c/o Clerk, U. S. Court of Appeals

for the Ninth Circuit

U. S. Court of Appeals and Post

Office Bldq., 7th & Mission Sts.

P. O. Box 547

San Francisco, CA 94101

Hon. WILLIAM A. INGRAM, Judge of the

U. S. District Court, c/o Clerk

280 South First St.

San Jose, CA 95113

Executed on January 16, 1986, at

Seaside, California.

I declare under penalty of perjury

that the foregoing is true and correct.

/ / ft gt

if GFA, LPP) - 1/4 Cre a

SAUL M. WEINGARTEN /

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