Gray v. Motorola Inc, No. 2:2007cv01466 - Document 101 (D. Ariz. 2009)
Court Description: ORDER denying Pla's 75 Motion for Partial Summary Judgment; granting Dft's 79 Motion for Summary Judgment. Directing the Clerk of the Court to enter judgment accordingly. Signed by Judge Mary H Murguia on 09/30/09. (ESL)
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Gray v. Motorola Inc 1 Doc. 101 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 DORIS H. GRAY, a married woman, Plaintiff, 10 11 vs. 12 MOTOROLA, INC., a Delaware Corporation, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 07-1466-PHX-MHM ORDER 15 Currently before the Court are Plaintiff Doris Gray’s (“Plaintiff”) Motion for Partial 16 Summary Judgment (Dkt. #75) and Defendant Motorola, Inc.’s (“Motorola”) Motion for 17 Summary Judgment (Dkt. #79). After reviewing the pleadings and determining that oral 18 argument is unnecessary, the Court issues the following order. 19 I. BACKGROUND 20 On March 7, 1988, Plaintiff, a 36 year-old African-American female, began working 21 for Motorola as a commercial attorney in the Contracts and Compliance Department of its 22 Government & Enterprise Mobility Solutions (“GEMS”) business unit or its predecessor 23 business units. (Defendant’s Statement of Facts (“DSOF”) ¶¶ 1-4; Plaintiff’s Statement of 24 Facts (“PSOF”) ¶ 1). Plaintiff continued to work for Motorola throughout the 1990s, and by 25 2001 Plaintiff had become a Senior Contracts and Compliance Manager in the GEMS Law 26 Department, supporting Motorola’s Integrated Solutions Division for the Public Service 27 and/or Safety business. (PSOF ¶¶ 2-4, 13; DSOF ¶¶ 4, 7). 28 Dockets.Justia.com 1 From 2003 to 2006, Plaintiff reported to Ms. Therese Vande Hey, Director of 2 Environmental Health and Safety Legal Services in the GEMS Law Department. (PSOF ¶ 3 26). During this time period, Plaintiff worked for Motorola as a “Commercial Attorney” 4 (although subsequent to that time, her title appeared as “Director of Contracts” in Motorola’s 5 human resources database) in the GEMS Law Department. (PSOF ¶¶ 40, 42-43; DSOF ¶¶ 6 8-9). Plaintiff’s primary responsibilities included reviewing, drafting, negotiating, and 7 monitoring certain of Motorola’s contracts with state and local government customers, 8 including reviewing customer bids and proposals, and monitoring compliance with federal 9 and state laws and disclosure obligations. (PSOF ¶¶ 9, 13, 28-30; DSOF ¶¶ 10). 10 In April 2005, Lewis Steverson, an African-American male, became head of 11 Motorola’s GEMS Law Department. (DSOF ¶¶ 36, 127). Among his responsibilities, Mr. 12 Steverson was tasked with merging the GEMS Contracts and Law Departments. (DSOF ¶¶ 13 35, 36). From 2005 to 2006, Ms. Vande Hey, Plaintiff’s supervisor, reported to Mr. 14 Steverson. (PSOF ¶ 48). 15 Around June 2005, Deborah Neil, one of Motorola’s commercial attorneys, received 16 a copy of Motorola’s Basic Ordering Agreement Standard Terms and Conditions (“BOA”) 17 with the Illinois Criminal Justice Information Authority (“ICJIA”). (DSOF ¶ 11). The BOA 18 differed from Motorola’s standard contracts, containing terms and conditions that were less 19 favorable to Motorola; it appeared to have been signed by Plaintiff on Motorola’s behalf. 20 (DSOF ¶¶ 11-12; PSOF ¶ 88). Ms. Neil contacted Plaintiff and forwarded the BOA to her 21 on June 20, 2005. (PSOF ¶ 90). Plaintiff then reviewed the contract and discovered her 22 signature had been forged; she reported this to Ms. Neil, who reported the suspected forgery 23 to her supervisor, Mr. Earl Richardson, who then reported the forgery to Ms. Vande Hey, 24 Plaintiff’s supervisor. (PSOF ¶ 91; DSOF ¶ 13). 25 Plaintiff and Ms. Vande Hey communicated about the suspected forgery, and in a July 26 1, 2005 email, Ms. Vande Hey told Plaintiff that “based on our conversations and follow-up 27 I had with you yesterday, there is absolute[ly] no one involved to date who could possibly 28 construe any potential wrong doing on your part” (PSOF ¶ 96); Plaintiff responded by email -2- 1 that “[s]ince you have established our position there is no point to our discussing this matter.” 2 (PSOF ¶ 97). Mr. Steverson was copied on the July 1st email(s). (PSOF ¶ 98). 3 On July 6, 2005, Ms. Vande Hey reported the suspected forgery to Motorola’s Office 4 of Ethics and Compliance (“OEC”), which commenced a formal investigation into the matter. 5 (DSOF ¶¶ 15-16; PSOF ¶ 102). Around that same time, Plaintiff wrote a letter to Motorola’s 6 Office of Ethics and Compliance (“OEC”), in which stated, “I believe that our failure to 7 rescind the contract would send the message that Motorola is more concerned with 8 appearances than it is concerned with doing the right thing.” (PSOF ¶ 101). Plaintiff also 9 requested that the OEC issue her a letter at the completion of the investigation absolving her 10 of any wrongdoing and stating that “there will be no adverse impact in terms of condition of 11 employment or retaliation by an employee of Motorola . . . with regard to this matter,” 12 because Plaintiff had previously “been involved in investigations” and felt that she had 13 “suffered retaliation for [her] participation by either the persons investigated or friends of the 14 persons investigations. To this point, I would prefer management’s assistance in finding a 15 position with another organization.” (PSOF ¶ 101). 16 In a July 19, 2005 email, on which Mr. Steverson was copied, Ms. Vande Hey wrote 17 that the “investigation is currently pending with the OEC and any conclusions, including a 18 finding of ‘forgery,’ have not been rendered.” (PSOF ¶ 99, PSOF Exh. 20). In addition, 19 during the investigation, Plaintiff wrote a letter to Ms. Vande Hey stating that she would like 20 the BOA rescinded because, among other things, “[t]he contract is void since the signature 21 was a forgery,” and if the BOA is not rescinded,“it will remain in Motorola’s system for 22 years and may adversely impact the conditions of [her] employment.” (PSOF 104; PSOF 23 Exh. 22). Plaintiff also stated that she wanted “to express [her] appreciation for [Ms. Vande 24 Hey’s] offer to provide [Plaintiff] with a letter and place a letter in [her] personnel file to 25 indicate that [she] was not the subject of the Ethics Committee’s investigation. This action, 26 along with rescinding the BOA, will result in closure of this matter for me.” (Id.). 27 On September 5, 2005, a Motorola employee admitted to forging Plaintiff’s signature 28 on the BOA; the employee was discharged three days later. (DSOF ¶ 17). Plaintiff was -3- 1 subsequently notified of the employee’s termination and the completion of the OEC’s 2 investigation. (DSOF ¶ 18). 3 On November 11, 2005, Plaintiff sent an email to Ms. Vande Hey inquiring into 4 whether the BOA had been rescinded and when she could expect a letter of absolution for 5 her personnel file. (PSOF ¶ 107). Plaintiff sent a follow-up email to Ms. Vande Hey on 6 December 27, 2005, on which Mr. Steverson was copied, to again inquire into whether the 7 GEMS Law Department intended to rescind the BOA, reissue it with a valid signature, and 8 provide Plaintiff with a letter acknowledging the forgery; she also stated that she was 9 “concerned about this matter not being resolved for me.” (PSOF ¶ 108, Exh. 25; DSOF ¶¶ 10 19-20). Ms. Vande Hey responded the next day, writing that she would provide the letter to 11 Plaintiff for her personnel file, but that “[t]he other matter is pending given the sensitivity of 12 the issue with the customer.” (PSOF ¶ 109). Then, on January 16, 2006, Plaintiff responded, 13 offering her “services in handling this forgery with the Illinois State Police,” and with 14 “rescinding the contract and signing an identical, new agreement with the appropriate 15 signature. . . . Please let me know if I can be of any assistance in this matter!” (PSOF ¶ 110, 16 Exh. 26). 17 On January 16, 2006, Plaintiff’s husband, a former Motorola employee, sent a letter 18 to Edward Zander, Motorola’s Chairman and Chief Executive Officer, and copied Gregory 19 Brown, President of GEMS, stating that he believed that Ms. Vande Hey “failed to do the 20 right thing” in connection with the forgery investigation because “[f]or several months, she 21 has delayed informing the customer of the forgery and that their contract is void.” (PSOF 22 ¶ 111; Exh. 27). Plaintiff’s husband also wrote that he believed that “Motorola’s Law 23 Department . . . has not lived up to Motorola’s high ethical standards set for its employees,” 24 and concluded by stating that he “would appreciate the evaluation of the concern raised in 25 my letter.” (Id.). Mr. Brown gave a copy of Plaintiff’s husband’s letter to Mr. Steverson. 26 (PSOF ¶ 116). That letter was also shown to certain OEC employees, who subsequently 27 advised Mr. Steverson “that [Plaintiff’s husband] was previously a Motorola employee that 28 had sued the company which I didn’t know, and so they thought that [the letter] was -4- 1 indication that either he or [Plaintiff] were preparing [to] file a lawsuit against [Motorola].” 2 (PSOF ¶ 87). 3 In addition, Ms. Vande Hey wrote to Plaintiff on January 20, 2006, stating that “[Mr. 4 Steverson] advised me that you escalated the issues and concerns you had over the [forgery] 5 investigation”; her email then attempted to assure Plaintiff that “[her] concerns were taken 6 very seriously” and that Plaintiff “was completely exonerated from any involvement with the 7 matter.” (PSOF ¶ 112, Exh. 25; DSOF ¶¶ 22-23). Ms. Vande Hey also wrote that 8 11 with respect to the ISP contract, it’s status remains unclear. I am aware of no prospective or existing business in Illinois where the contract is or became an issue. We are working . . . to clarify that status to understand [what] next steps [to take]. While I did commit to addressing the matter – rescinding the contract was not an actual commitment I made but rather an option to be seriously considered. I will follow-up with you on that status and advise you of the proposed response. 12 (DSOF ¶ 24; PSOF ¶ 112, Exh. 25). Plaintiff responded on January 23, 2009, that she “did 13 not escalate [her] issues concerning the forgery” because she had “been too involved [in 14 another matter] to escalate this matter.” (PSOF Exh. 25). But on February 1, 2006, Plaintiff 15 again responded to Plaintiff’s January 20, 2006 email, this time writing that she “fe[lt] that 16 [her] trust has been violated in the way the Law Department has handled this matter.” (PSOF 17 ¶ 117, Exh. 28). 9 10 18 Then, on February 9, 2006, Plaintiff sent letters to Mr. Brown, the President of 19 GEMS, and Peter Lawson, Motorola’s General Counsel, informing them that she was 20 concerned with “the failure of the Law Department to inform the Illinois State Police of the 21 forgery” because “[t]he Illinois State Police believe that their BOA is a valid contract”; 22 “Motorola has failed in its responsibility to its customer to inform them that the signature on 23 the BOA was forged.” (PSOF ¶ 118, Exhs. 29, 30). Plaintiff also wrote that she 24 “consider[ed] [her] reputation to be defamed as long as Motorola continues to represent to 25 the Illinois State Police by its inaction that the signature on the BOA is valid,” and that 26 “[f]orgery is a crime. I should have reported this matter to the police. Instead I reported the 27 forgery to my manager, Ms. Vande Hey, who appears to be content to let this matter run its 28 course.” (Id.). -5- 1 The next day, after receiving Plaintiff’s letter from Mr. Brown, Mr. Steverson wrote 2 an email to Plaintiff, stating that although he sympathized with Plaintiff’s concerns regarding 3 her forged signature on the BOA, “Motorola respectfully disagrees with your and your 4 husband’s conclusions that the Company or its Law Department has done anything improper 5 with respect to its investigation or resolution of this issue.” (PSOF ¶ 119; DSOF ¶¶ 28-29). 6 Mr. Steverson also stated, among other things, that Motorola has “attempted to contact the 7 State of Illinois to alert them to the fact that the BOA contains a forged signature and to 8 discuss with them the appropriate next steps”; he thanked Plaintiff for “taking the time to 9 voice [her] concerns.” (Id.). Plaintiff responded in a February 12, 2006 email that she 10 “wholeheartedly concur[red]” with Mr. Steverson that the OEC “did an outstanding job in 11 the investigation of the forgery,” but disagreed with him “that the Law Department . . . took 12 appropriate action in a timely manner to protect the customer’s interest and [her] interest and 13 to communicate with [her] in a straightforward manner.” (PSOF ¶ 120; DSOF ¶ 30). Mr. 14 Steverson replied via email the next day, thanking Plaintiff for her response and stating again 15 that although “it is regrettable that [Plaintiff] fe[lt] that the Company should have resolved 16 this matter more expeditiously,” he “[stood] by [his] earlier statement that we communicated 17 openly with [Plaintiff] and acted properly throughout the process.” (PSOF ¶ 123, Exh. 32). 18 That same day, Plaintiff was given a formal letter for her personnel file that made I clear that 19 “at no time was [Plaintiff] ever suspected of any wrongdoing concerning the forgery and how 20 it came to occur[.]” (PSOF ¶ 124, Exh. 33). 21 On February 15, 2006, Ms. Vande Hey informed the ICJIA of the forged signature on 22 the BOA and indicated that Motorola wanted to re-execute the BOA on the same terms but 23 with a proper signature. (DSOF ¶ 31). The ICJIA responded that although it believed it was 24 unnecessary to re-execute the BOA in light of Motorola’s affirmation that it would honor the 25 terms of the contract, it would re-execute the BOA if requested by Motorola. (DSOF ¶ 32; 26 PSOF Exh. 35). The BOA was re-executed with an authorized signature on Motorola’s 27 behalf on March 15, 2006. (DSOF ¶ 33; PSOF ¶ 125). In addition, a formal letter was sent 28 to the ICJIA’s General Counsel to follow-up on the conversation(s) between Ms. Vande Hey -6- 1 and the ICJIA with respect to Plaintiff’s forged signature on the BOA and the subsequent 2 investigation and action taken by Motorola. (PSOF ¶ 125, Exh. 34). On March 16, 2006, 3 Ms. Vande Hey told Plaintiff that Motorola had re-executed the BOA. (DSOF ¶ 34). 4 During this time period, Plaintiff was the only GEMS attorney managing contracts for 5 Network and Enterprise Mobility who was based out of Motorola’s facility in Chandler, 6 Arizona. (DSOF ¶ 46; PSOF Exh. 40). Plaintiff’s work involved supporting businesses in 7 several locations, including Phoenix, AZ, San Diego, CA, and Schaumburg, IL. (PSOF ¶ 8 135). 9 Also during this time period, and in conjunction with merging the GEMS Contracts 10 and Law Departments, Mr. Steverson determined that it was necessary to conduct a 11 reduction-in-force (“RIF”) to eliminate several of the 69 positions within the GEMS Law 12 Department. (DSOF ¶ 39). The criteria used for deciding which employees would be 13 terminated, included job performance, one-person offices, skill set for the new, combined 14 GEMS Law Department, and redundant layers of management. (PSOF ¶ 148; DSOF ¶ 40). 15 On March 17, 2006, Mr. Steverson notified Plaintiff in person that her job had been 16 eliminated as “part of overall reductions in the Law Department . . . and that her role was 17 impacted because she was in a one-person office and we were closing all one-person offices 18 in the GEMS Law Department. . . . Because of [Plaintiff’s] years of service (18), she ha[d] 19 30 days to stay in the office to pursue other internal Motorola opportunities.” (PSOF ¶¶ 126- 20 27, Exh. 35; DSOF ¶¶ 45, 51). Pursuant to Motorola’s Senior Service policy, terminations 21 of an employee with more than ten years of service, such as Plaintiff, must be reviewed and 22 approved by Motorola’s head of Employee Relations; Mr. Steverson requested such a review. 23 (DSOF ¶¶ 49, 103-04; PSOF ¶ 133). Mr. Steverson’s request noted that there were no 24 openings in either the GEMS Law Department or overall Law Department for which Plaintiff 25 met the qualifications; a determination to be confirmed by Motorola’s Human Resources 26 Department. (PSOF ¶¶ 136, 140). Plaintiff’s employment with Motorola was terminated on 27 April 17, 2006. (DSOF ¶ 54). Her position in Chandler, Arizona was eliminated, and 28 -7- 1 Plaintiff’s work was absorbed by other employees. (DSOF ¶ 57, Exh. 1, Gray Depo. p. 2 149:5-11). 3 In addition to Plaintiff’s termination, two other Motorola employees, Monyeen Drury 4 and Claudine Gilbert, who apparently worked remotely from home, were also terminated for 5 the same stated reason, i.e., that they worked in one-person offices. (PSOF ¶ 126, Exh. 51). 6 However, two different Motorola employees, Victoria Stewart and Robert Gonzales, who 7 also worked in one-person offices, were retained, but either required to move to another 8 office or work at least part time in an office in which other GEMS attorneys were located. 9 (DSOF ¶ 95, Exh. 2). Ms. Stewart was approximately 50 years old around this time. (DSOF 10 ¶ 96). 11 Following notification of her termination, between March 31, 2006 and July 7, 2006, 12 Plaintiff submitted online applications for eight open positions within Motorola’s GEMS 13 Law Department and Integrated Supply Chain (“ISC”) Law Department;1 two of those 14 positions were not filled. (DSOF ¶¶ 58, 77; PSOF ¶ 158). Motorola uses internal recruiters 15 to review the qualifications of applicants and determine which resumes to send to the hiring 16 manager for review, who then determines which applicants from the reduced pool to 17 interview for the position. (DSOF ¶ 78). For five of the eight positions for which Plaintiff 18 applied, her resume was screened by Motorola’s recruiters and not forwarded to the 19 respective hiring managers. (DSOF ¶ 79). Neither the recruiters nor managers were aware 20 of Plaintiff’s age or race; they were similarly unaware of the investigation into the forgery 21 of Plaintiff’s signature. (DSOF ¶¶ 80-81). Plaintiff was interviewed for only one position, 22 a commercial attorney position in the Software and Licensing group within the ISC; the 23 interview postdated a July 13, 2006 letter sent by Plaintiff’s attorney to Mr. Lawson, 24 Motorola’s General Counsel, that outlined Plaintiff’s claims against Motorola with respect 25 to her termination. (PSOF ¶ 160; DSOF ¶ 70). The interview, which occurred on August 26 1 27 28 The ISC supports Motorola’s internal business units by operating their internal and contract manufacturing and logistics, and procuring materials for product manufacturing. (DSOF ¶ 59). -8- 1 18, 2006, also postdated an August 7, 2006 Charge of Discrimination that Plaintiff filed with 2 the Equal Employment Opportunity Commission (“EEOC”). (PSOF ¶ 188, Exh. 49). 3 Plaintiff was not hired by Motorola for any of the positions for which she applied after her 4 termination. (DSOF ¶¶ 66, 73, 77, 79, 110, 112, 115, 117, 122-23). The six individuals 5 ultimately hired by Motorola were Caucasian; at least two of them were over the age of 40. 6 (PSOF Exh. 47, pp. 22-23). 7 On September 19, 2006, Mr. Steverson placed a telephone call to Plaintiff and left a 8 message informing her about an open Senior Counsel position in Motorola’s Federal 9 Contracts group. (Defendant’s Statement of Facts in Response to Plaintiff’s Motion for 10 Partial Summary Judgment (“DSOF2”) ¶¶ 1, 5). Mr. Steverson followed up with another 11 telephone call and a letter inviting Plaintiff to apply for the position. (DSOF2 ¶¶ 7, 9). 12 Plaintiff later emailed Mr. Steverson with questions about the position, to which Mr. 13 Steverson responded, but on November 30, 2006, Plaintiff notified Mr. Steverson that she 14 did not intend to apply for the position; she accepted an offer of employment with Avnet. 15 (DSOF2 ¶¶ 10-12). 16 On March 19, 2007, Plaintiff filed a complaint against Motorola in Maricopa County 17 Superior Court, asserting claims arising out of her termination under the Arizona 18 Employment Protection Act (“AEPA”) § 23-1501 and the public policy of the State of 19 Arizona. (Compl., Dkt. #1, Exh. A). The case was removed to the District of Arizona on 20 July 31, 2007 (Dkt. #1), and on April 15, 2008, Plaintiff filed a First Amended Complaint 21 (“FAC”), asserting additional claims arising out of her termination, and failure to re-hire, 22 under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., Title 23 VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and 42 U.S.C. 24 § 1981. (FAC ¶¶ 45-63). 25 II. SUMMARY JUDGMENT STANDARD 26 Summary judgment is appropriate when the “pleadings, depositions, answers to 27 interrogatories, and admissions on file, together with the affidavits, if any, show that there 28 is no genuine issue as to any material fact and that the moving party is entitled to a judgment -9- 1 as a matter of law.” Fed.R.Civ.P. 56(c). “Summary judgment is inappropriate if reasonable 2 jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the 3 nonmoving party’s favor.” Diaz v. Eagle Produce Ltd. Partnership, 521 F.3d 1201, 1207 (9th 4 Cir. 2008) (citing United States v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999). 5 The moving party bears the initial burden of establishing the absence of any genuine 6 issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Devereaux v. 7 Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). Specifically, the moving party must present 8 the basis for its motion and identify those portions of the record that demonstrate the absence 9 of a genuine issue of material fact. See, e.g., Nissan Fire & Marine Ins. Co. v. Fritz Co., 210 10 F.3d 1099, 1105 (9th Cir. 2000) (“A moving party may not require the nonmoving party to 11 produce evidence supporting its claim or defense simply by saying that the nonmoving party 12 has no such evidence.”) (citing Clark v. Coats & Clark, Inc., 929 F.2d 604, 609 (11th Cir. 13 1991) (“Even after Celotex it is never enough simply to state that the non-moving party 14 cannot meet its burden at trial.”)). 15 A material fact is one that might affect the outcome of the case under governing law. 16 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In addition, a “genuine” issue 17 means that a reasonable jury could find in favor of the non-moving party. Id.; Anheuser - 18 Busch, Inc. v. Natural Beverage Distrib., 69 F.3d 337, 345 (9th Cir. 1995) (same). 19 If the moving party meets its burden with a properly supported motion for summary 20 judgment, then the burden shifts to the non-moving party to present specific facts that show 21 there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Matsushia Elec. Indus. Co. v. Zenith 22 Radio, 475 U.S. 574, 587 (1986). The nonmovant may not rest on bare allegations or denials 23 in his pleading, but must set forth specific facts, by affidavit or as otherwise provided by 24 Rule 56, demonstrating a genuine issue for trial. Fed.R.Civ.P. 56(e); see Anderson, 477 U.S. 25 at 248-50 (discussing Fed.R.Civ.P. 56(e) standard); see also Block v. City of Los Angeles, 26 253 F.3d 410, 418-19 (9th Cir. 2001) (“To survive summary judgment, a party does not 27 necessarily have to produce evidence in a form that would be admissible at trial, as long as 28 the party satisfies the requirements of Federal Rules of Civil Procedure 56.”). Conclusory - 10 - 1 allegations, unsupported by factual material, are insufficient to defeat summary judgment. 2 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 3 On summary judgment, the Court may not make credibility determinations or weigh 4 conflicting evidence. Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990). In addition, 5 the Court must draw all reasonable inferences in favor of the nonmovant. Gibson v. County 6 of Washoe, 290 F.3d 1175, 1180 (9th Cir. 2002); Allen v. City of Los Angeles, 66 F.3d 1052, 7 1056 (9th Cir. 1995) (same). However, the mere existence of a scintilla of evidence 8 supporting the nonmovant’s petition is insufficient; there must be enough evidence from 9 which a trier of fact could reasonably find for the non-movant. Anderson, 477 U.S. at 251-52 10 (“[T]he inquiry . . . is . . . whether the evidence presents a sufficient disagreement to require 11 submission to a jury or whether it is so one-sided that one party must prevail as a matter of 12 law.”). The nonmovant “must do more than simply show that there is some metaphysical 13 doubt as to the material facts.” Matsushita Elec., 475 U.S. at 586. The nonmovant has the 14 burden of identifying with reasonable particularity the evidence that it believes precludes 15 summary judgment. Anderson, 477 U.S. at 249; see Carmen v. San Francisco Unified 16 School District, 237 F.3d 1026, 1028-29 (9th Cir. 2001) (even if evidence in the record is 17 later found to create a genuine issue of material fact, a district court may grant summary 18 judgment if the opposing party’s papers do not include or conveniently refer to that 19 evidence); Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996) (a district court is not 20 required to scour the record in search of a genuine issue of triable fact). 21 III. MOTION FOR PARTIAL SUMMARY JUDGMENT 22 On November 25, 2008, Plaintiff filed a motion for partial summary judgment on 23 Motorola’s mitigation of damages defense as it relates to Plaintiff’s job search following her 24 termination from Motorola. (Dkt. #75). Specifically, Plaintiff contends that Motorola 25 provides no evidence relating to the availability of comparable employment. (Id., p. 5). 26 Motorola responds that despite Plaintiff’s contention it has “produced evidence of the 27 availability of a substantially equivalent position, as well as evidence of Plaintiff’s failure to 28 - 11 - 1 exercise reasonable diligence in pursing such employment.” (Dkt. #86, p.1). Plaintiff did 2 not file a reply. 3 Title VII “requires the claimant to use reasonable diligence in finding other suitable 4 employment.” Ford Motor Co. v. EEOC, 458 U.S. 219 (1982). However, the defendant 5 bears the burden of proving that the plaintiff failed to mitigate her damages. Odima v. 6 Westin Tucson Hotel, 53 F.3d 1484, 1497 (9th Cir. 1995). To satisfy this burden, the 7 defendant must prove “that, based on undisputed facts in the record, during the time in 8 question there were substantially equivalent jobs available, which [the plaintiff] could have 9 obtained, and that [the plaintiff] failed to use reasonable diligence in seeking one.” EEOC 10 v. Farmer Bros. Co., 31 F.3d 891, 906 (9th Cir. 1994) (emphasis in original). 11 Motorola has produced uncontested evidence that Mr. Steverson contacted Plaintiff 12 in September 2006 to encourage her to apply for an open Senior Counsel position in 13 Motorola’s Federal Contracts group. (DSOF2 ¶ 1). The responsibilities of that position 14 included the negotiation and drafting of federal government contracts; at an E12 pay grade, 15 with a salary range of $93,500 to $150,500. (DSOF2 ¶¶ 2-3). Plaintiff was formerly 16 employed by Motorola as a Senior Contracts and Compliance Manager with responsibilities 17 that included negotiating and drafting contracts with Motorola’s state and local government 18 customers; at an E13 pay grade. (DSOF2 ¶ 4; DSOF ¶ 10; PSOF ¶¶ 9, 12-13, Exh. 39). 19 Although not identical in responsibilities or pay grade, the availability of the Senior Counsel 20 position at the very least raises a material issue of fact as to the availability of substantially 21 equivalent employment subsequent to Plaintiff’s termination. 22 In addition, the Court notes that Plaintiff does not allege that Motorola fails to raise 23 a material issue of fact with respect to whether Plaintiff used reasonable diligence in pursing 24 comparable employment. The record is unclear as to what extent Plaintiff continued her job 25 search after July 7, 2006, the last date on which Plaintiff submitted an application for a 26 position within Motorola’s GEMS or ISC Law Departments. Further, Motorola proffers 27 evidence that despite Mr. Steverson’s attempts to reach Plaintiff to discuss the Senior 28 Counsel position in September 2006, Plaintiff did not respond until November 2006. - 12 - 1 (DSOF2 ¶¶ 5-10, Exh. A). However, also in November 2006, Plaintiff accepted a position 2 with Avnet. (DSOF2 ¶¶ 12-13). Nonetheless, while that shows that Plaintiff was clearly 3 engaged in some respect in seeking employment, Plaintiff’s failure to respond to Mr. 4 Steverson’s calls for two months, and the lack of record evidence with respect to Plaintiff’s 5 job search between July and November 2006, is sufficient to raise a material issue of fact as 6 to whether Plaintiff failed to use reasonable diligence in pursing substantially equivalent 7 employment. Accordingly, the Court cannot conclude that Motorola fails to meet its burden 8 on summary judgment with respect to its mitigation of damages defense. 9 IV. MOTION FOR SUMMARY JUDGMENT 10 On November 26, 2008, Motorola filed a motion for summary judgment on all of 11 Plaintiff’s claims: discrimination in violation of the ADEA and Title VII, and retaliation in 12 violation of the ADEA, AEPA, and public policy . (Dkt. #79). Plaintiff responds that there 13 is sufficient evidence to allow a jury to reasonably conclude that her termination constituted 14 “a violation of the AEPA and the public policy of the State of Arizona.” (Dkt. #94, p.13). 15 Plaintiff also responds that “[al]though there is no direct evidence of discrimination, the 16 cumulative effect of the circumstantial evidence is strong enough that a factfinder could 17 conclude that the decision to terminate Plaintiff was age motivated[.]” (Id., p.17). 18 A. 19 Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice 20 for an employer . . . to discriminate against any individual with respect to his compensation, 21 terms, conditions, or privileges of employment, because of such individual’s race, color, 22 religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The Age Discrimination in 23 Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., makes it “unlawful for an employer 24 . . . to fail or refuse to hire or to discharge any individual [who is at least 40 years of age] . 25 . . because of such individual’s age.” Id. at §§ 623(a), 631(a). Age & Race Discrimination 26 A district court evaluates ADEA and Title VII claims “that are based on circumstantial 27 evidence of discrimination by using the three-stage burden-shifting framework laid out in 28 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” - 13 - 1 Diaz, 521 F.3d at 1207 (citing Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d 802, 812 2 (9th Cir. 2004)).2 6 [1] [T]he employee must first establish a prima facie case of age discrimination. [2] If the employee has justified a presumption of discrimination, [then] the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its adverse employment action. [3] If the employer satisfies its burden, [then] the employee must then prove that the reason advanced by the employer constitutes mere pretext for unlawful discrimination. 7 Id. (citing Coleman, 232 F.3d at 1281). “As a general matter, the plaintiff in an employment 8 discrimination action need produce very little evidence in order to overcome an employer’s 9 motion for summary judgment.” Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 3 4 5 10 1124 (9th Cir. 2000). 11 To establish a prima facie case of discrimination under the ADEA using 12 circumstantial evidence, the plaintiff must demonstrate that she was (1) a member of the 13 protected class (i.e., at least 40 years old), (2) performing her job satisfactorily [or was 14 qualified for a particular position], (3) discharged [or subject to some other adverse 15 employment action], and (4) either replaced by a substantially younger employee with equal 16 or inferior qualifications or discharged under circumstances otherwise “giving rise to an 17 inference of age discrimination.” Diaz, 521 F.3d at 1207 (citing Coleman v. Quaker Oats 18 19 20 21 22 23 24 25 26 27 28 2 The United States Supreme Court as recently rejected the application of the burdenshifting framework to ADEA claims. Gross v. FBL Financial Services, Inc., 557 U.S. ___, 2009 WL 1685684 (2009) (“This Court has never held that this burden-shifting framework applies to ADEA claims. And, we decline to do so now.”). The Court imposed what appears to be a much stricter standard for federal age discrimination claims: “A plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the “but-for” cause of the challenged employer decision.” Id. at *7. That holding, which rejects the dissent’s acknowledgment that “ADEA standards [were previously] generally understood [by courts] to conform to Title VII,” id. at *10 (Stevens, J., dissenting), appears to at the very least narrow Diaz and its ancestry in the Ninth Circuit. Nonetheless, here, as the parties briefed this case before Gross was decided, and Plaintiff fails to meet her burden to raise an inference of age discrimination even under the more lax burden-shifting framework employed in Diaz, the Court’s order need not specifically address the applicability of Gross, suffice it to say that Plaintiff fails to establish a reasonable inference that age was the “butfor” cause of Motorola’s decision not to rehire Plaintiff. - 14 - 1 Co., 232 F.3d 1271, 1281 (9th Cir. 2000)).3 Similarly, to establish a prima facie case of 2 discrimination under Title VII,4 “the plaintiff must show that (1) he belongs to a protected 3 class; (2) he was qualified for a particular position [or performing his position satisfactorily]; 4 (3) he was subject to an adverse employment action; and (4) similarly situated individuals 5 outside his protected class were treated more favorably.” Chuang, 225 F.3d at 1123; see 6 Coleman, 232 F.3d at 1295 (“The analysis under Title VII is the same as that under 7 ADEA.”). “An inference of discrimination can be established by ‘showing the employer had 8 a continuing need for [the employees’] skills and services in that their various duties were 9 still being performed . . . or by showing that others not in their protected class were treated 10 more favorably.’” Diaz, 521 F.3d at 1207-08 (quoting Coleman, 232 F.3d at 1281). i. Title VII 11 12 Plaintiff is an African-American female, and she was discharged. Motorola does not 13 contest that Plaintiff satisfies the first two elements of a prima facie case of race 14 discrimination under Title VII. (Dkt. #79, p.12). In addition, for purposes of summary 15 judgment, Motorola does not contest that Plaintiff performed her job satisfactorily. (Id.). 16 However, Motorola contends that Plaintiff’s discharge and the decision not to re-hire her did 17 not occur under circumstances that support an inference of discrimination on account of race. 18 3 19 20 21 22 23 24 25 26 27 28 Gross does not necessarily require the court to reject in toto these four factors. Although federal age discrimination plaintiffs may no longer discharge their burden of persuasion simply by establishing a prima facie case of disparate treatment, the factors may continue to guide courts in determining whether the plaintiff has offered sufficient evidence on summary judgment to warrant a reasonable inference that age discrimination was the butfor cause of the challenged employer decision. 4 The elements required to establish a prima facie case of disparate treatment under Title VII overlap with those required to establish discrimination under 42 U.S.C. § 1981. See, e.g., Rodriguez v. General Motors Corp., 904 F.2d 531, 532-33 (9th Cir. 1990) (applying the McDonnell Douglas framework to a § 1981 claim of racial discrimination); Gay v. Waiters’ and Dairy Lunchmen’s Union, Local No. 30, 694 F.2d 531, 538-39 (9th Cir. 1982) (“[A] plaintiff may establish a prima facie case of intentional discrimination in employment under section 1981 upon proof of facts which would establish a prima facie case of disparate treatment under Title VII, pursuant to the four McDonnell Douglas elements or otherwise.”). - 15 - 1 Plaintiff did not respond to Motorola’s motion for summary judgment on Plaintiff’s 2 Title VII claim, with respect to either Plaintiff’s termination or Motorola’s decision not to 3 re-hire her. Summary judgment is thus appropriate if Motorola’s pleadings show that there 4 is no genuine issue as to any material fact and Motorola is entitled to judgment as a matter 5 of law. See Fed.R.Civ.P. 56(e)(2) (“If the opposing party does not so respond, summary 6 judgment should, if appropriate, be entered against that party.”); Grimmway Enterprises, Inc. 7 v. PIC Fresh Global, Inc., 548 F. Supp.2d 840 (E.D. Cal. 2008) (same). 8 Motorola has met its burden. First, an inference of discrimination is undermined when 9 the relevant decision-maker is a member of the same protected class as the plaintiff. Ziegler 10 v. Delaware County Daily Times, 128 F. Supp.2d 790, 812 n. 47 (E.D. Pa. 2001). Here, the 11 relevant decision-maker with respect to Plaintiff’s termination, Mr. Steverson, is also 12 African-American. In addition, one of the two individuals Plaintiff contends was treated 13 more favorably, i.e., they were transferred to another office rather than terminated, is also 14 African-American. (DSOF ¶ 126). Furthermore, although the six individuals hired by 15 Motorola for the positions to which Plaintiff applied were Caucasian, which the Court only 16 discovered after scouring the record (PSOF Exh. 47, pp. 22-23), there is no evidence that the 17 relevant decision-makers for the respective positions, except for the one manager who 18 actually interviewed Plaintiff for a position, knew of Plaintiff’s race at the time they 19 determined not to interview her. (DSOF ¶¶ 67, 79, 80). And with respect to the one position 20 for which Plaintiff was interviewed, the hiring manager for that position, Mr. Kenzer, stated 21 that he did not consider Plaintiff’s race in determining whether or not to hire her for the 22 position. (DSOF ¶ 76). Plaintiff provides no evidence to contradict Mr. Kenzer’s statement 23 or call his credibility into question. Moreover, Plaintiff fails to demonstrate that she was 24 better qualified than the applicants ultimately hired by Motorola for the positions to which 25 she applied. See Mitchell v. Office of Los Angeles County Superintendent of Schools, 805 26 F.2d 844, 846 (9th Cir. 1986) (affirming dismissal of discrimination claim where hired 27 applicant was better qualified than plaintiff); Texas Dept. of Community Affairs v. Burdine, 28 450 U.S. 248, 253 (1981) (“The plaintiff must prove by a preponderance of the evidence that - 16 - 1 she applied for an available position for which she was qualified, but was rejected under 2 circumstances which give rise to an inference of unlawful discrimination.”). Accordingly, 3 Motorola has met its burden; there are no genuine issues of material fact to support Plaintiff’s 4 claims that her termination and Motorola’s decision not to re-hire her occurred under 5 circumstances giving rise to an inference of discrimination on account of race. Plaintiff’s 6 Title VII claim fails as a matter of law. 7 ii. ADEA 8 Plaintiff is over 40 years of age and was discharged after she had obtained protected 9 status (i.e., Plaintiff was over forty years old when she was fired). Motorola does not dispute 10 that these two elements of Plaintiff’s prima facie case have been satisfied. (Dkt. #79, p.12). 11 In addition, Motorola does not dispute, for purposes of summary judgment, that Plaintiff 12 performed her job satisfactorily. (Id). The remaining question then, is whether Plaintiff was 13 replaced by a substantially younger employee with equal or inferior qualifications and/or 14 discharged under circumstances giving rise to an inference of age discrimination. 15 Motorola contends that Plaintiff was fired as part of a general reduction in its 16 workforce (and specifically, a general reduction of employees in the GEMS Law 17 Department). 18 acknowledges that “[i]n the present case, there is no direct evidence of discrimination[.]” 19 (Dkt. #94, pp. 15, 17). Nevertheless, “where a discharge occurs in the context of a general 20 reduction in the employer’s workforce[,] . . . . circumstantial evidence other than evidence 21 concerning the identity of a replacement employee may also warrant an inference of 22 discrimination.” Diaz, 521 F.3d at 1207 n. 2 (emphasis added). “This inference can be 23 established by showing the employer had a continuing need for [their] skills and services in 24 that [their] various duties were still being performed or by showing that others not in [their] 25 protected class were treated more favorably.” Coleman, 232 F.3d at 1281 (internal quotation 26 marks and citation omitted). To that end, Plaintiff argues that “the cumulative effect of the 27 circumstantial evidence is strong enough that a factfinder could conclude that the decision 28 to terminate [and to not re-hire] Plaintiff was age motivated[.]” (Dkt. #94, p.17). Plaintiff agrees that this is “an ADEA reduction in force case,” and - 17 - 1 Plaintiff fails to provide sufficient circumstantial evidence to warrant an inference that 2 Motorola’s decisions to terminate and to not re-hire her were motivated based on her age. 3 With respect to her termination, Plaintiff contends that “[n]ot all attorneys in single person 4 offices were terminated”; “attorneys younger that [sic] Plaintiff were given the opportunity 5 to work out of other offices,” whereas Plaintiff was not provided with a similar opportunity. 6 (Dkt. #94, p.17). Plaintiff, however, does not contend that Motorola did not eliminate all 7 “one-person offices” during its RIF. Plaintiff also does not identify which “younger” 8 attorneys were not terminated but allowed to work out of other offices. Indeed, Plaintiff’s 9 citation to her Statement of Facts mentions only that Plaintiff “alleges that she was treated 10 disparately from other colleagues (Chris Backs, Eloise Robinson and Eleanor 11 Rananchandran).” (PSOF ¶ 180). However, there is nothing in the record to indicate that 12 those three individuals worked in one-person offices. In addition, after scouring the exhibits, 13 which this Court is not required to do, the Court discovered that each of those individuals 14 were over 40 years old at the time of the RIF. (PSOF Exh. 39). The Court also discovered 15 that Ms. Backs appears to have been selected for termination in the RIF. (Id.). Plaintiff’s 16 assertion is not supported by her Statement of Facts or the record. 17 The record reveals that there were two employees working out of one-person offices 18 who were retained and allowed to work out of other offices, Ms. Stewart and Mr. Gonzales. 19 (DSOF ¶ 95). Ms. Stewart was required to move from Hanover, Maryland to Motorola’s 20 Washington, D.C. office, and Mr. Gonzales, who appears to have previously worked 21 remotely in Anaheim, California, was required to spend at least three days per week in 22 Motorola’s San Diego, California office. (Id.). But although Mr. Gonzales was a “younger” 23 employee, in that he was younger than 40 years old at the time of the RIF, Ms. Stewart was 24 not; she was 50 years old at the time of the RIF. (DSOF ¶ 96; PSOF Exh. 39). As such, the 25 Court finds it hard to see how Motorola’s failure to offer Plaintiff the same opportunity, i.e., 26 to move, at least part-time, to an office that contained more GEMS attorneys, constitutes age 27 discrimination when it was offered to both a younger employee and an employee in 28 Plaintiff’s protected class. - 18 - 1 The only other circumstantial evidence produced by Plaintiff that relates to Plaintiff’s 2 prima facie case of age discrimination, is Plaintiff’s contention that “Mr. Steverson knew 3 Plaintiff’s age and that Plaintiff was one year away from eligibility for retirement benefits 4 because he had to prepare the Form 1441 for senior service employees.” (Dkt. #94, p.19). 5 Plaintiff, however, fails to support that assertion with any citation to the record. In any event, 6 Plaintiff’s argument fails because Form 1441 simply applies to all employees with service 7 of 10 or more years (PSOF ¶ 133); not all employees with service of 10 or more years are 8 necessarily over 40 years old and thus in a protected class. 9 With respect to Motorola’s decision not to re-hire Plaintiff, Plaintiff contends that Mr. 10 Steverson falsely indicated that there were no openings for which Plaintiff was qualified, but 11 then identified an open position with the ISC Law Department, and Mr. Steverson “did not 12 follow the policy as there was also not much of a review into open positions[.]” (Dkt. #94, 13 p.18). However, Plaintiff cites the Court to no policy that would require Mr. Steverson to 14 locate open positions for Plaintiff after informing her that she was discharged. Regardless, 15 Mr. Steverson did inform Plaintiff that he had identified an open position in the ISC Law 16 Department. And that statement, contrary to Plaintiff’s contention, is not inconsistent with 17 Mr. Steverson’s prior statement that there were no current openings in the GEMS Law 18 Department that Plaintiff was qualified to perform. (PSOF ¶¶ 136-38). The additional fact 19 that a commercial attorney position in the GEMS Law Department was posted 14 days after 20 Plaintiff was informed of her discharge (Dkt. #94, p.18; PSOF ¶ 159) does not call that 21 statement into question or support an inference of discrimination. 22 Plaintiff also argues that Motorola discriminated against her because despite the fact 23 that she applied to and was qualified for a commercial attorney position in the GEMS Law 24 Department in Sunnyvale, California (position/posting #46617), “[t]he person hired did not 25 even work in [the GEMS Law Department] [and] [t]he person hired was six years younger 26 and did not have state and local government experience.” (Dkt. #94, p.18). Plaintiff also 27 asserts that this position “required a person with relationships with and knowledge of public 28 safety customers[,] [t]he exact customers that Plaintiff worked with and the same issues that - 19 - 1 Plaintiff worked with.” (Id.). However, Ms. Georgia Vlamis, the hiring manager for the 2 position, stated that she “sought a candidate with strong skills in complex negotiations, 3 antitrust and management to support direct and indirect sales and service organizations 4 dedicated to Motorola’s public safety customers.” (DSOF ¶ 116). Ms. Vlamis ultimately 5 selected Richard Blackwell for the position. (DSOF ¶ 117). Plaintiff cites to nothing in the 6 record with respect to whether the position required an individual with state and local 7 government experience; or that the Mr. Blackwell lacked such experience equivalent to or 8 on par with Plaintiff’s experience. Nor is there any indication as to what customers the 9 selected applicant would work with in the new position. Indeed, Mr. Blackwell had been a 10 senior counsel attorney at Motorola from 1997 to 2006, he possessed an MBA and had 11 “expertise in the wireless industry, as well as . . . commercial sales agreements, management, 12 and antitrust and regulatory issues.” (DSOF ¶¶ 117, 120; Gray Depo. 176:18-177:13). More 13 importantly, Mr. Blackwell was 49 years of age, and thus in Plaintiff’s protected class. 14 (DSOF ¶ 117). Thus, Motorola’s decision to hire Mr. Blackwell instead of Plaintiff does not 15 evidence age discrimination. 16 Finally, Plaintiff notes that she was only interviewed for one out of the eight internal 17 positions for which she applied between March 31, 2006 and July 7, 2006. (Dkt. #94, p.18). 18 In addition, Plaintiff contends that “[s]he was offered the interview only after her attorney 19 sent a letter delineating her discrimination claims”; “Motorola’s in-house counsel ordered 20 that Plaintiff be provided a “sham” interview after Plaintiff made claims of age 21 discrimination for a position.” (Dkt. #94, pp. 18-19). But those contentions at most raise an 22 inference that Motorola provided Plaintiff with an interview simply because she threatened 23 litigation; they do not provide any basis for inferring that Motorola somehow engaged in age 24 discrimination by failing to interview her for other positions. Further, there is no evidence 25 that Mr. Kenzer, the hiring manager for the position that Plaintiff was offered an interview, 26 knew that Plaintiff had threatened litigation. More importantly, as mentioned above, the 27 individual ultimately hired for the position was over the age of 40 and thus in Plaintiff’s 28 protected class. Moreover, at least half of the individuals hired for the positions for which - 20 - 1 Plaintiff applied were over 40 years of age and in Plaintiff’s protected class. Plaintiff 2 provides no evidence to show that Motorola had a continuing need for her skills and services, 3 that Plaintiff was similarly situated in all material respect to the individuals ultimately hired 4 for the positions to which she applied, or that others not in her protected class were treated 5 more favorably. But see Beck v. United Food and Commercial Workers Union, Local 99, 6 506 F.3d 874, 885 (9th Cir. 2007) (“[I]n general, we have upheld inferences of 7 discriminatory motive based on comparative data involving a small number of employees 8 when the plaintiff establishes that he or she is similarly situated to those employees in all 9 material respects.”) (internal quotation marks and citation omitted). Plaintiff’s evidence does 10 not warrant an inference of discrimination. 11 Plaintiff’s remaining evidence “challenges the credibility of the reasons stated for 12 Plaintiff’s termination, i.e., worked in a one person office.” (Dkt. #94, p.19). That evidence, 13 however, is applicable to the third stage of the McDonnell Douglas framework, i.e., whether 14 the reason advanced by the employer constitutes mere pretext for unlawful discrimination. 15 Plaintiff offers no circumstantial evidence, other than that addressed above, to support a 16 reasonable inference of age discrimination in connection with her termination. Compare 17 Diaz, 521 F.3d at 1207 (finding evidence of age discrimination based on statistical evidence 18 of personnel decisions, employer’s knowledge of employees’ ages, and employer’s decision 19 not fire younger, less-qualified employees who assumed plaintiff’s responsibilities) with 20 Coleman, 232 F.3d 1283 (finding no evidence of age discrimination where “statistics failed 21 to account for obvious variables – including education, previous position at the company, and 22 distribution of age groups by position – that would have affected the results of the analysis”). 23 Therefore, Plaintiff cannot establish a prima facie case of age discrimination and Motorola 24 is entitled to summary judgment. 25 Even assuming Plaintiff was able to establish a prima facie case of age discrimination, 26 Motorola has successfully satisfied its burden of setting forth a legitimate nondiscriminatory 27 reason for terminating Plaintiff’s employment: Plaintiff was discharged as part of Motorola’s 28 RIF in the GEMS Law Department because “she worked in a one-person office.” (DSOF ¶¶ - 21 - 1 40, 45). See Coleman, 232 F.3d at 1282 (“A reduction-in-force is itself a legitimate 2 nondiscriminatory reason for laying off an employee.”); see also Diaz, 521 F.3d at 1211 (“To 3 suffice under McDonnell Douglas, an employer’s explanation must explain why the plaintiff 4 ‘in particular’ was laid off.”) (quoting Davis v. Team Electric Co., 520 F.3d 1080, 1094 (9th 5 Cir. 2008)). Thus, the burden switches to Plaintiff to establish that the reason set forth by 6 Motorola was simply pretext. Diaz, 521 F.3d at 1207. 7 A plaintiff can demonstrate that the facially legitimate reasons proffered by his or her 8 employer is merely pretextual “either directly by persuading the court that a discriminatory 9 reason more likely motivated the employer or indirectly by showing that the employer’s 10 proffered explanation is unworthy of credence.” Snead v. Metropolitan Prop. & Cas. Ins. 11 Co., 237 F.3d 1080, 1093-94 (internal quotation marks and citation omitted). Here, Plaintiff 12 argues that Motorola’s proffered reason for her discharge – that she worked in a one-person 13 office – lacks credibility because “the label of a one person office [is] a misnomer”; “Plaintiff 14 was not in a single person office as there was a significant legal presence in Arizona with 13 15 individuals from the law department (at least two attorneys) located in the facility where 16 Plaintiff was co-located with one of her major clients.” (Dkt. #94, p.17). In addition, 17 Plaintiff states that “Mr. Steverson incorrectly limited the scope of Plaintiff’s client base . . 18 . to San Diego to justify his decision[,] . . . [when] in reality, one of Plaintiff’s largest clients 19 was located in Phoenix[.]” (Id.). Finally, Plaintiff appears to argue that Mr. Steverson failed 20 to adhere to a policy giving preference for transfer and rehire to employees identified for 21 termination. (Dkt. #94, p.16). 22 Plaintiff’s arguments do not support her allegation that Motorola’s proffered reason 23 for terminating her employment was a pretext for age-based discrimination. The fact that 24 Plaintiff worked with other Motorola employees in Motorola’s facility in Chandler, Arizona, 25 and that some or even a majority of Plaintiff’s clients were located in Phoenix does not 26 contradict Motorola’s proffered reason for her discharge – she worked in a one-person office, 27 i.e. she did not work in an office with other GEMS attorneys. Plaintiff does not contest the 28 fact that Plaintiff was the only GEMS attorney in Motorola’s facility in Chandler. (DSOF - 22 - 1 ¶ 46). Nor does Plaintiff offer any evidence or call into question whether Mr. Steverson in 2 fact closed all “one-person offices,” i.e., offices that contained only one GEMS attorney, in 3 order to, as Motorola claims, consolidate geographically the GEMS attorneys. (DSOF ¶¶ 40- 4 42). 5 In addition, the fact that Mr. Steverson did not provide a complete list of the locations 6 of the businesses that Plaintiff supported in his recommendation to include Plaintiff in the 7 RIF does not undermine the proffered reason for Plaintiff’s discharge; regardless of where 8 the businesses that Plaintiff supported were located, she was still the only GEMS attorney 9 in Motorola’s Chandler facility. Although Plaintiff appears to argue that Motorola’s 10 proffered reason for eliminating one-person offices – to geographically consolidate GEMS 11 attorneys – makes little sense in light of the fact that one of Plaintiff’s largest clients was 12 located in Phoenix, Arizona, it is not the Court’s role to question Mr. Steverson and 13 Motorola’s business judgment. See, e.g., Kinnally v. Rogers Corp., 2009 WL 597211, at *8 14 (D. Ariz. 2009) (“[T]he Court's role is not to question whether Defendant picked the most 15 appropriate people for the RIF, but whether Defendant did so with a discriminatory 16 motive.”). 17 Plaintiff also apparently argues that Motorola violated its policy to give preference for 18 transfer and rehire to employees identified for termination. See Brennan v. GTE Govt. Sys. 19 Corp., 150 F.3d 21, 29 (1st Cir. 1998) (“Deviation from established policy or practice may 20 be evidence of pretext.”). However, Plaintiff produces no evidence of any such policy. At 21 most, Plaintiff can only point to the fact that two out of at least five GEMS attorneys who 22 worked in one-person offices prior to the RIF were allowed to transfer to other Motorola 23 offices. (PSOF ¶¶ 95, 126). That does not establish Motorola had an established policy to 24 give preference for transfer or rehire to employees identified for termination. In addition, at 25 least one of the GEMS attorneys who worked in a one-person office and was eliminated in 26 the RIF and not given an opportunity to transfer or re-hire, Claudine Gilbert, was younger 27 than 40 years old at the time of the RIF; another, Monyeen Drury, was older than 40 and thus 28 in Plaintiff’s protected class; and while one of the employees given the opportunity to - 23 - 1 transfer, Mr. Gonzales, was younger than 40, the other, Ms. Stewart, was older than 40. 2 (PSOF Exh. 39). Accordingly, in addition to not establishing a prima facie case of age 3 discrimination , Plaintiff has failed to create a genuine issue of material fact concerning 4 whether the proffered reason for her discharge was pretext for age discrimination. See Snead 5 v. Metropolitan Prop. & Cas. Ins. Co., 237 F.3d 1080, 1094 (9th Cir. 2001) (evidence that 6 one other similarly situated employee was treated in a similar manner negated plaintiff’s 7 showing of pretext). Plaintiff’s ADEA age discrimination claim fails as a matter of law. 8 B. AEPA & Public Policy 9 Plaintiff contends that Motorola violated AEPA, A.R.S. § 23-1501, and the public 10 policy of the State of Arizona by failing to disclose and/or by concealing “that Defendant’s 11 employee had committed forgery on a contract with the Illinois State Police,” and by firing 12 her for engaging in protected whistleblowing activities, i.e., reporting her concerns about the 13 forgery and Motorola’s “failure to remedy and conceal the illegal act.” (Dkt. #94, pp. 2, 9- 14 13). 15 “The AEPA spells out the public policy of this state and enumerates the four 16 circumstances under which an employee may bring a wrongful termination action in 17 Arizona.” Galati v. America West Airlines, Inc., 205 Ariz. 290, 292 (Ariz. App. 2003) 18 (citing A.R.S. § 23-1501). The AEPA provides, in pertinent part, that an employee has an 19 actionable claim when: 20 21 22 23 24 (c) The employer has terminated the employment relationship of an employee in retaliation for any of the following: . . . (ii) The disclosure by the employee in a reasonable manner that the employee has information or a reasonable belief that the employer, or an employee of the employer, has violated, is violating or will violate the Constitution of Arizona or the statutes of this state to either the employer or a representative of the employer who the employee reasonably believes is in a managerial or supervisory position and has the authority to investigate the information provided by the employee and to take action to prevent further violations of the Constitution of Arizona or statutes of this state or an agency of a public body or political subdivision. 25 A.R.S. § 23-1501(c); Galati, 205 Ariz. at 292 (employee may bring wrongful termination 26 action “when an employer terminates an employee in retaliation for refusing to violate 27 Arizona law or for reporting violations of Arizona law to the employer's management or 28 - 24 - 1 other investigative authority”). As such, Plaintiff must establish three elements: (1) that she 2 had a good faith, reasonable belief that Motorola violated or was violating state law; (2) that 3 she disclosed her belief in a reasonable manner to someone that she believed had the 4 authority to investigate the alleged violation and take action to prevent further violations; (3) 5 that her disclosure was a substantial motivating factor in Motorola’s decision to terminate 6 her employment. See Murcott v. Best Western Int’l, Inc., 198 Ariz. 349, 356-360 (2000). 7 With respect to the second element, to the extent that Plaintiff contends that the 8 forgery of her signature on the BOA constitutes the illegal act, although Plaintiff may have 9 initially discovered the forgery, she was not the one who disclosed it to her supervisors; that 10 was Deborah Neil. Ms. Neil originally contacted Plaintiff about the BOA; Plaintiff reviewed 11 the contract and told Ms. Neil that her signature had been forged; Ms. Neil then reported the 12 forgery to her supervisor, Mr. Earl Richardson, who in turn reported the forgery to Ms. 13 Vande Hey, Plaintiff’s supervisor. Thus, the forgery itself cannot constitute the illegal act 14 that Plaintiff disclosed under AEPA. Nonetheless, Plaintiff alternatively contends that the 15 alleged illegal act that she reported was Ms. Vande Hey and Mr. Steverson’s failure to inform 16 the ICJIA of the forgery and need to re-execute the BOA. 17 The AEPA requires that Plaintiff have a good faith, reasonable belief that Motorola 18 violated or was violating state law. Plaintiff contends that by failing to “correct” the forgery 19 of her signature on the BOA (she also refers to Motorola’s conduct as “concealment”) after 20 “her reporting of the forgery and persistent requests that the forgery be corrected with the 21 Illinois State Police,” Motorola violated (1) A.R.S. § 13-2002A, which provides, in pertinent 22 part, that “[a] person commits forgery if, with intent to defraud, the person: . . . [k]nowingly 23 possesses a forged instrument . . .”; (2) A.R.S. § 13-2301, et seq., Arizona’s racketeering 24 statute, and (3) A.R.S. § 13-2311, which “deal[s] with fraudulent schemes, practice, and 25 concealment of the forgery as described in A.R.S. [§] 13-2301(D)(4)(b)(iv).” (Dkt. #94, 26 p.10). However, Plaintiff points to nothing in the record to establish that at any time prior 27 to her termination she actually believed that Motorola was violating state law in its handling 28 of the forgery incident. First, in her February 12, 2006 email, Plaintiff stated that she thought - 25 - 1 the OEC “did an outstanding job in the investigation of the forgery.” Second, although 2 Plaintiff stated in her deposition that she “thought it was a wrong – it was unethical or illegal 3 to have a contract – that the contract was unenforceable and that was an ethical concern,” 4 nothing in the record supports Plaintiff’s contention that she believed prior to her termination 5 that her supervisor’s failure to inform the ICJIA of the forgery and re-execute the BOA in 6 what Plaintiff considered a timely fashion was illegal, rather than simply “an ethical matter.” 7 (DSOF ¶ 83). 8 Prior to February 2001, while Plaintiff made multiple inquiries into her supervisor’s 9 progress in re-executing the BOA, there is no indication that she believed her supervisors’ 10 actions were illegal.5 In fact, Plaintiff offered her services to assist in “rescinding the 11 contract and signing an identical, new agreement with the appropriate signature.” (PSOF ¶ 12 110, Exh. 26). It was not until February 1, 2006, that Plaintiff gave any indication that she 13 thought her supervisors’ handling of the matter was objectionable; but even then Plaintiff 14 merely wrote then that she “fe[lt] that [her] trust has been violated in the way the Law 15 Department has handled this matter.” (PSOF ¶ 117, Exh. 28). Then, on February 9, 2009, 16 Plaintiff wrote that “Motorola has failed in its responsibility to its customer to inform them 17 that the signature on the BOA was forged,” and that she “consider[ed] [her] reputation to be 18 defamed as long as Motorola continue[d] to represent to the Illinois State Police by its 19 inaction that the signature on the BOA is valid.” (PSOF ¶ 118, Exhs. 29, 30). But those 20 statements, along with Plaintiff’s comment in her February 9, 2009 letter that “[f]orgery is 21 a crime,” one which Motorola investigated and fired the person responsible, do not establish 22 that Plaintiff believed that her supervisors failure to expeditiously inform ICJIA of the 23 forgery and re-execute the BOA was illegal. 24 25 26 27 28 5 Although Plaintiff’s husband sent a letter to the CEO of Motorola in January 2006 expressing his displeasure with Plaintiff’s supervisor’s handling of the forgery incident, Plaintiff stated that she was not aware of the letter, and made no similar statements at that time. (Dkt. #94, p.8). - 26 - 1 Moreover, Plaintiff was aware that the terms of the original BOA were more favorable 2 to the ICJIA than Motorola normally agreed-to in its standard contracts. (DSOF ¶ 21, Exh. 3 1, Grey Depo. at 106:4-18). And Plaintiff acknowledged in her deposition that there was no 4 indication that Motorola did not intend to honor the contract. (DSOF ¶ 84). It is thus quite 5 difficult for the Court to accept Plaintiff’s contention that she had a good faith belief that 6 Motorola was violating a law such as A.R.S. § 13-2002A by simply failing to expeditiously 7 disclose the discovered forgery to the ICJIA or to re-issue the BOA when the forgery and 8 BOA resulted in more favorable terms to the ICJIA and Motorola continued to honor the 9 contract; such circumstances do not support a reasonable belief that Motorola intended to 10 defraud the ICJIA by retaining the BOA. In addition, although Plaintiff cites generally to 11 Arizona’s racketeering statute, Plaintiff does not state how she believed Motorola was 12 violating the statute. Further, Plaintiff’s citation to A.R.S. § 13-2311 is inapposite as it 13 merely prohibits the use of fraudulent practices in matters related to the business conducted 14 by agencies and entities of the State of Arizona. 15 In sum, the record indicates that Plaintiff’s concerns with respect to her supervisors’ 16 failure to expeditiously inform the ICJIA of the forgery and to re-execute the BOA were 17 simply “ethical” concerns related to her belief that such action was necessary to protect her 18 reputation. (PSOF ¶¶ 101, 104, 107, 108, 110, 117, 118, 120; DSOF ¶ 83). There is no 19 indication whatsoever that Plaintiff’s statements to her supervisors and superiors were made 20 to inform them of any potential violation of state law. Accordingly, after drawing all 21 inferences in favor of Plaintiff, the Court cannot conclude that a reasonable juror could find 22 that Plaintiff possessed a good faith, reasonable belief that Motorola was violating the law 23 or that her statements were made for the purpose of reporting an illegality. See, e.g., 24 Dahlberg v. Lutheran Social Services of North Dakota, 625 N.W.2d 241, 256 (N.D. 2001) 25 (concluding based on the record that “reasonable minds could only conclude that [Plaintiff’s] 26 statements . . . were made for the purpose of questioning disparate discipline of staff for 27 incidents of inadequate supervision and not for the purpose of reporting an illegality”); 28 Dzwonar v. McDevitt, 177 N.J. 451, 467-68, 903 (N.J. 2003) (“[Plaintiff’s] complaints - 27 - 1 concern the administration of meetings generally . . . . [T]he crux of plaintiff’s argument is 2 that defendants should have explained their actions more fully to the general memberships. 3 Because plaintiff’s dispute concerns the adequacy of the Union’s internal procedures, we 4 conclude as a matter of law that plaintiff did not possess an objectively reasonable belief that 5 [defendants’ actions violated the law].”). Plaintiff’s AEPA and public policy claims for 6 wrongful termination fail as a matter of law.6 7 // 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 The Court need not resolve the “open and much debated question in Arizona law” on “[w]hether a common law tort for wrongful termination still exists after the AEPA[.]” Galati, 205 Ariz. at 294. To the extent a common law tort for wrongful termination remains after the AEPA, it would be based on “whistleblowing activity which serves a public purpose” rather than employees’ actions based on “merely private or proprietary” concerns. Wagner v. City of Globe, 150 Ariz. 82, 89 (1986). As stated above, the record here establishes that Plaintiff’s concerns with respect to her supervisors’ failure to expeditiously inform the ICJIA or to re-execute the BOA were based on personal concerns, i.e., any damage that might occur to her reputation. Plaintiff’s persistent inquiry into whether the BOA had been re-executed with a proper signature was not based on concern that her supervisors’ actions (or failure to expeditiously act) “contravened the important public policy interests embodied in the law.” Wagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370, 1035 (1985). - 28 - 1 C. Retaliation 2 Plaintiff contends that Motorola’s “failure to consider and rehire [her] following her 3 complaints of discriminatory treatment was in violation of the anti-retaliation provisions of 4 the ADEA.” (FAC ¶ 47). Defendant argues in its motion for summary judgment that 5 Plaintiff’s retaliation claim fails because “Plaintiff’s conduct does not constitute protected 6 activity and she cannot establish a causal link between any protected activity and Motorola’s 7 hiring decisions.” (Dkt. #79, p.19). The Court notes that Plaintiff, as with her Title VII 8 claim, fails to respond to Defendant’s request for summary judgment.7 9 “In order to establish a prima facie case of retaliation, [a plaintiff] must demonstrate 10 that (1) [she] had engaged in a protected activity; (2) [she] was thereafter subjected by her 11 employer to an adverse employment action; and (3) a causal link existed between the 12 protected activity and the adverse employment action.” Porter v. California Dept. of 13 Corrections, 419 F.3d 885, 894 (9th Cir. 2005) (citing Ray v. Henderson, 217 F.3d 1234, 14 1240 (9th Cir. 2000)); Seranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989) 15 (“[A] plaintiff alleging retaliation for the exercise of constitutionally protected rights must 16 initially show that the protected conduct was a ‘substantial' or ‘motivating' factor in the 17 defendant’s decision.”). Proximity of time between a protected activity and an adverse action 18 may support an inference of causation. Ray, 217 F.3d at 1244; Villarimo v. Aloha Island Air, 19 Inc., 281 F.3d 1054, 1065 (9th Cir. 2002) (“[I]n order to support an inference of retaliatory 20 motive, the termination must have occurred fairly soon after the employee’s protected 21 expression.”) (internal quotation marks and citation omitted). However, “it is causation, not 22 temporal proximity itself, that is an element of plaintiff’s prima facie case, and temporal 23 proximity merely provides an evidentiary basis from which an inference can be drawn.” 24 Porter, 383 F.3d 1018, 1030 (9th Cir. 2004). 25 26 27 28 7 Although Plaintiff cites the Court to some case law regarding retaliation and causation, see Dkt. #94, pp. 11-12, Plaintiff only discusses those cases in the context of her AEPA claim, her termination, and her complaints about her supervisor’s handling of the forgery incident. - 29 - 1 If the plaintiff provides sufficient evidence to show a prima facie case of retaliation, 2 then the burden shifts to the defendant to articulate some legitimate, non-retaliatory reason 3 for its actions. Porter, 419 F.3d at 894; Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th 4 Cir. 1982) (same). And if the defendant sets forth such a reason, then the plaintiff bears the 5 burden of submitting evidence to establish that the defendant’s proffered reason is merely 6 a pretext for an underlying retaliatory motive. Porter, 419 F.3d at 894. 7 Here, Plaintiff claims that Motorola retaliated against her by failing to rehire her. 8 (FAC ¶ 47). It is unclear, however, what the protected activity is that Plaintiff contends she 9 engaged in. In her deposition, Plaintiff testified that the primary reason she believes she was 10 not rehired by Motorola was because of her involvement in the forgery investigation. (DSOF 11 ¶ 128, Gray Depo. 29:12-30:19, 159:2-12). Plaintiff’s retaliation claim, however, is brought 12 under the ADEA; thus, Plaintiff’s claim is retaliation based on age discrimination. Plaintiff 13 provides no indication or argument with respect to what the protected activity was that she 14 engaged in prior to Motorola’s decision not to rehire her in the positions for which she 15 applied. 16 The Court will presume that Plaintiff’s alleged protected activity was either her May 17 10, 2006 letter to Motorola’s Executive Vice President of Human Resources, her July 13, 18 2006 letter to Motorola’s General Counsel, or the filing of her August 7, 2006 Charge of 19 Discrimination with the EEOC. (DSOF ¶130; PSOF ¶¶ 160, 188). Plaintiff’s May 10, 2006 20 letter, however, did not complain of or oppose any alleged age discrimination. (DSOF ¶¶ 21 131-33). Thus, Plaintiff’s May 10, 2006 letter could not have reasonably put Motorola on 22 notice that Plaintiff was opposing age discrimination, and as such did not constitute a 23 protected activity. See Galdieri-Ambrosini v. National Realty & Development Corp., 136 24 F.3d 276, 291-92 (2d Cir. 1998) (“[I]mplicit in the requirement that the employer have been 25 aware of the protected activity is the requirement that it understood, or could reasonably have 26 understood, that the plaintiff’s opposition was directed at conduct prohibited by [the 27 ADEA].”); accord Lee v. Connecticut, 427 F. Supp. 2d 124, 134-35 (D. Conn. 2006). 28 - 30 - 1 Plaintiff’s July 13, 2006 letter and EEOC Charge, on the other hand, outlines 2 Plaintiff’s claims against Motorola, including her age discrimination claim, and thus could 3 constitute protected activity sufficient to place Motorola on notice that Plaintiff was opposing 4 conduct allegedly in violation of the ADEA. The Court notes, however, that nothing in 5 Plaintiff’s July 13, 2006 letter indicates that Plaintiff believed that Motorola was engaging 6 in age-based discrimination by failing to re-hire her; the letter spoke primarily of Plaintiff’s 7 termination. But see Lee, 427 F. Supp. 2d at 133 (“[T]he plaintiff must demonstrate a ‘good 8 faith, reasonable belief that the underlying challenged actions of the employer violated the 9 law.’”) (quoting Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 10 590, 593 (2d Cir. 1988)). In addition, although temporal proximity between a protected 11 activity and an adverse employment action can sometimes constitute sufficient circumstantial 12 evidence of retaliation, Bell v. Clackamas County, 341 F.3d 858, 864 (9th Cir. 2003), 13 Plaintiff fails to demonstrate a casual link between her July 13, 2006 letter or EEOC charge 14 and any of the relevant decision-makers’ decisions not to rehire her for the various positions 15 for which she applied between March 31, 2006 and July 7, 2006. Plaintiff produces no 16 evidence (or argument) that any of the relevant decision-makers, i.e. the recruiters or hiring 17 managers, had any knowledge of Plaintiff’s July 13, 2006 letter or EEOC charge, or any 18 other complaint of age discrimination. See Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 19 (9th Cir. 1982) (“Essential to a causal link is evidence that the employer was aware that the 20 plaintiff had engaged in the protected activity.”); Gunther v. Washington County, 623 F.2d 21 1303, 1316 (9th Cir. 1979). 22 In any event, as discussed above, Motorola offers legitimate, non-retaliatory reasons 23 for its decisions to interview or hire Plaintiff in the positions for which she applied – she was 24 less qualified for the particular positions to which she applied than the individuals ultimately 25 hired. (Dkt. #79, pp. 15-17; DSOF ¶¶ 61-67, 69, 71-77, 79-80, 113, 122, 125). Furthermore, 26 as discussed above, Plaintiff fails to submit evidence to establish that Motorola’s proffered 27 reason is merely a pretext for an underlying retaliatory motive; Plaintiff fails to produce 28 evidence “showing that [Defendant’s] explanation is unworthy of belief or through evidence - 31 - 1 showing that [retaliation] more likely motivated its decision.” Pottenger v. Potlach Corp., 2 329 F.3d 740, 746 (9th Cir. 2003). Plaintiff provides no evidence, direct or circumstantial, 3 other than temporal proximity (although even then there is no evidence that any of the 4 relevant decision-makers knew of Plaintiff’s protected activity or complaints of age 5 discrimination), to indicate that Motorola decided not to rehire her because she engaged in 6 a protected activity, and that but for engaging in such an activity she would have been hired. 7 See Ruggles v. California Polytechnic State Univ., 797 F.2d 782, 785 (9th Cir. 1986). Thus, 8 Plaintiff’s ADEA retaliation claim must fail.8 9 10 11 12 13 14 15 16 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion for Partial Summary Judgment is DENIED. (Dkt. #75). IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment is GRANTED. (Dkt. #79). IT IS FURTHER ORDERED directing the Clerk of the Court to enter judgment accordingly. DATED this 30th day of September, 2009. 17 18 19 20 21 22 23 24 25 26 27 28 8 Because Plaintiff’s claims do not survive summary judgment, the Court need not address the issue of whether Plaintiff has presented sufficient evidence to pursue her claim for punitive and/or liquidated damages. (Dkt. #79, pp. 20-21; Dkt. #94, pp. 19-20; Dkt. #96, p.11). - 32 -
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