Unpublished Disposition, 841 F.2d 1130 (9th Cir. 1988)

MEMORANDUM^* 

Appellant Stribling filed suit against appellee, Southern Pacific Transportation Company ("company"), alleging that it discriminated against her on the basis of race or sex in violation of Title VII, 42 U.S.C. § 2000e-2, by forcing her to take maternity leave. The company placed Stribling on involuntary maternity leave when her physician advised her not to operate a forklift or work around heavy equipment, thereby disqualifying her from 62% of the jobs required of her as a Guaranteed Extra Board (GEB) Clerk. Company policy disqualifies GEB Clerks who cannot perform or be trained to perform fifty percent of the jobs required. Stribling contends that her involuntary maternity leave constituted race and sex discrimination because appellee treated similarly situated white female employees differently.

The company sought summary judgment on two grounds: (1) that Stribling had relinquished her claim when she received $20,000 in exchange for her resignation and signed a release of claims against the company, and (2) that she had failed to establish a prima facie case of discrimination.

We hold that the district court erred in granting summary judgment based on the release signed by Stribling. However, we affirm the district court's grant of summary judgment based on Stribling's failure to establish a prima facie case of discrimination. We also affirm the district court's denial of Stribling's request to develop a fuller record.

STANDARD OF REVIEW

Appellant appeals from the district court's grant of summary judgment. We review grants of summary judgment de novo. California Architectural Bldg Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466 (9th Cir. 1987). Summary judgment is appropriate under Fed. R. Civ. P. 56(c) when the moving party has shown, by pleadings and supporting materials viewed in the light most favorable to the non-moving party, that " 'there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' " Id. at 1468.

DISCUSSION

The district court found that the agreement signed by appellant constituted a valid release and settlement of this action. Appellant contends that the release is ambiguous and should not result in summary judgment against her because she never intended it to cover this action. Ordinarily, we look to the forum state's law to decide questions of contract interpretation and validity. Allstate Ins. Co. v. Ellison, 757 F.2d 1042, 1044 (9th Cir. 1985) (insurance contract). However, this case involves the release of a Title VII action. We have held that "conditions affecting the validity of a release of significant federal rights are eminently a matter of federal law...." Jones v. Taber, 648 F.2d 1201, 1203 (9th Cir. 1981) (finding triable issue of fact as to validity of release of section 1983 claims); Salmeron v. United States, 724 F.2d 1357, 1361 (9th Cir. 1983).

Thus, although both parties argued state law extensively in their briefs, we apply the standard used to assess waivers of federal rights. In Salmeron, 724 F.2d at 1361, we held that " [a] release of claims for violations of civil and constitutional rights must be voluntary, deliberate, and informed." In interpreting this standard, we held in Salmeron, 724 F.2d at 1362, that voluntariness "is a question of fact to be determined from all the circumstances" and declared that "legal representation is an important factor in assessing the voluntariness of a release of federal rights...."

The burden of demonstrating that a release of federal rights is voluntary and informed is a heavy one. In Jones v. Taber, 648 F.2d 1201 (9th Cir. 1981), drawing on maritime law, we stated that:

a release's validity must be predicated on an unusually strong showing that the nature and extent of the seaman's injuries and the shipowner's potential liability for them was explained clearly to the seaman in circumstances where his signing of the release was quite free and intelligent.... [A] seaman's release ... cannot be relied on ... unless the shipowner can affirmatively demonstrate that the claimant understood the nature of whatever statutory and common-law remedies he waived by the release. Jones, 648 F.2d at 1203.

We then held that section 1983 releases must meet the same standard of validity. Id. at 1204. Finally, we declared that: "although both parties may agree on certain facts, including the accuracy of the transcript of the claimed settlement conference, summary judgment is precluded when conflicting inferences might be drawn about a party's state of mind as reflected by objective indications." Id. at 1204.

In this case, Stribling has raised a genuine issue of material fact regarding whether her signing of the release was knowing and voluntary. Appellant asserts that she had no knowledge of the release before she was called in to sign it and that she believed it only pertained to the company's buy-out program. She did not understand the release to include her case, and her attorney was not present at the signing to advise her. These assertions raise an issue of fact regarding whether appellant knowingly and voluntarily released her Title VII claims against the company. We reverse the district court's grant of summary judgment on this ground.

II. Appellant's Title VII Disparate Treatment Claim¹ 

Appellant argues that the district court erred in granting summary judgment for the company because she failed to make out a prima facie case of sex or race discrimination. Appellant has the burden of establishing a prima facie case of discrimination. A plaintiff establishes a prima facie case by "showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were 'based on a discriminatory criterion....' " Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978), quoting, Teamsters v. United States, 431 U.S. 324, 358 (1977). A plaintiff may raise this inference by satisfying the McDonnell Douglas criteria: (1) that plaintiff belongs to a protected class; (2) that she was qualified for the available job; (3) that, despite her qualifications, she was rejected (discharged); and (4) that the position remained available after her rejection (discharge). McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

Appellant contends that she was qualified for the job, as required by McDonnell Douglas, and that the defendant's disparate treatment of similarly situated white women, Cathy Miller and Ivy Castro, gives rise to an inference of discrimination, thus establishing her prima facie case and rendering summary judgment inappropriate. Stribling has failed to meet her burden here. She alleges that Miller was pregnant and allowed to remain on the GEB, while she was placed on involuntary maternity leave. But she and Miller were not similarly situated. Stribling conceded that Miller, unlike herself, could drive the forklift. Moreover, she presented no evidence that Miller was restricted by her physician, at that time, from operating the forklift, as Stribling was. Appellant presented no evidence regarding Castro's situation.

Nor does it appear that appellant was qualified to hold her position on the GEB once her physician restricted her ability to drive the forklift. Appellant's inability to drive the forklift prior to this time does not suggest an inference of discrimination because before she became pregnant, she was able to train as a forklift operator, and thus satisfied the fifty percent rule. Consequently, the district court properly granted summary judgment on plaintiff's disparate treatment claim.

Lastly, appellant argues that summary judgment should not have been granted without development of a fuller record. This contention is without merit. Responsibility for any inadequacy in the record lies with the appellant. She had five years to develop the facts of her case but undertook virtually no discovery during that time. Cf. Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986) ("the movant cannot complain if it fails to pursue discovery diligently before summary judgment.") In fact, the court, sua sponte, placed this case on the calendar for dismissal for lack of prosecution. At that time, appellant indicated that she was in the process of preparing interrogatories on the disparate treatment claim, but none were forthcoming. Appellant is not entitled to reversal on this ground.

CONCLUSION

Although we believe the release issue raised triable issues of fact with respect to its validity, the district court correctly granted summary judgment on the ground that Stribling failed to establish a prima facie case of employment discrimination.

AFFIRMED.