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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1368%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 475 U.S. 1048

## Text

ree:

Supreme Court, U.S.
FILED

85°1292) DEC 30 1985

cane - JOSEPH F-SPANIOL, JR.
CLERK

EF SUPREME COURT

of the
UNITED STATES

es’ ; seo

ACTARE rT } (2 0
OCTOBER TERM, 198

INU) .

T y \ T
LYNN ¢ LER,

Petitioner,

e

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

a%
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

18

28

16

Due Process and Equal Protection

Clauses

3

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.

i

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

2

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

3
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.

= .
-
:
’
‘
f 7 = a
= -
F >
= aa ;
- ‘
‘
-
:
”
* .
.
.
’
:
\ r
| :
(
-. :
.
» - “
. -
4 * {
a - .
i
.
; - \
. ‘
~ ‘

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).

5
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

Ng “EEL Re ©

- =k
=
- e
- - c
*
| a 7
7
7 -
* a 4 “4
.

ms : -

ie

- : ce ae
= mye

i, ps
. *S - = a4 Sa)
eae ee ee

>
= =

6
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

7

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:

ry) | Vv
atk ¥ ,
; ‘
a i \X >» I
r bs 4 \
+ y
it { SS ) ® | \A es
)
it ext
+
A & ‘
) If ,
b ¥ is i
{ Lihue t
A i >
;
4 1. 2 9
, i A kot
"
4 , Wi A v
h
’ y
’ \ . Be S&S XN X \
i Th > " '
? ( ifs! 4 \ A dict i

BEST AVAILABLE COPY

g
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

rr

10

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

11

(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

oe

2
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),

ko

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

14

(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

|

Ww

L6

Radobenko Vv. Automated E

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

proposition that a party could not
0 ~ P , _ca ry j " t P ’
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

OO

17
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

18
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

19

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

20
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

21

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
’ ‘ } , F ? > ¥ ? 7
se laa , 1 i 2 ? WOIRKR 1 i i
LocatlLONs Ox Yyeal i i {
unby was hired in her place Ost
Int e P. Lap Lae 35 *O ? - r e = °
Al

sstablished in the dual 1 ponsibiliti:
of others (Foster Int. P. : ie
OG).
ne LStrict yurt rx
question as whether FOSTER nd lamby
) " + - } + '

LZ - P. be bas 7% Tne record ¢ a |
mn |

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

jellis, Bur lingal and Fort Ord
|

x e ' wr } ; \y t y ’ > |
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 —_

24
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

25

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

26
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.

at

(3) FOSTER, with a single rate ot

4

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.

28
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

i
‘
|
i |
4 ' 1
i 7
a |
R ;
i
. :
_ !
’ ' '
i} * y
; 7
23.
5
a >
i j
'
- hed ‘
7 ;
}
|
i
'
'
‘
. s ‘
:
- a
i
i . *
} : :
ie i
. ‘ |
)
: @ =| & ‘ , a
- LY ‘ aS of) 7, - =
= soe

z= ad 4 : 7 5 a : 7 OV ia ~
é : ee a aerate 7 i aokd ie - 7 ae si 7 ne! a, ees lo. : i; ;

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

a)
-

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.

2
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

3

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

4

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

5

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 |

6

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 —.-

iw

8

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

9

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

10
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

5

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

12

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.

I.
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

—|

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.

x

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.

i)
a)

bos r sv. ARCATA Associxiis, INc.

if
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 /

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1368%3A1. Public record. Not legal advice.