Rizo v. Yovino

AILEEN RIZO, Plaintiff, v. JIM YOVINO, FRESNO COUNTY SUPERINTENDENT OF SCHOOLS, Defendant.

CASE NO. 1:14-cv-0423-MJS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

December 17, 2015

AMENDED ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 12);

ISSUING CERTIFICATION FOR INTERLOCUTORY APPEAL; AND

VACATING JANUARY 12, 2016, TRIAL DATE

I. INTRODUCTION AND PROCEDURAL HISTORY

Plaintiff initiated this action on February 3, 2014, in the Fresno County Superior Court. She pled four causes of action: (1) violation of the federal Equal Pay Act ("EPA"), 29 U.S.C. § 206(d); (2) sex discrimination under California Government Code § 12940; (3) sex discrimination under Title VII of the Civil Rights Act of 196, 42 U.S.C. §2000e et seq. (Title VII"); and (4) failure to prevent discrimination under California Government Code §12940(k).

Defendant Jim Yovino, Fresno County Superintendent of Schools (erroneously sued as Fresno County Office of Education), removed this action to this Court on March 24, 2014, pursuant to 28 U.S.C. § 1441(c)(1)(A). The parties have consented to the undersigned's jurisdiction for all purposes. (See ECF Nos. 6, 7.)

This matter is before the Court on Defendant's motion for summary judgment. (ECF No. 12.) Plaintiff has filed an opposition. (ECF No. 14.) Defendant has filed a reply. (ECF No. 16.) On November 19, 2015, the parties filed supplemental briefs. (ECF Nos. 18, 19.) The Court heard argument on the motion on November 25, 2015. The motion is fully briefed and ready for disposition.

II. LEGAL STANDARDS

Any party may move for summary judgment, and the Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed R. Civ. P. 56(c)(1). The Court may consider other materials in the record not cited to by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001).

Plaintiff bears the burden of proof at trial, and to prevail on summary judgment, she must affirmatively demonstrate that no reasonable trier of fact could find other than for her. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Defendants do not bear the burden of proof at trial and, in moving for summary judgment, they need only prove an absence of evidence to support Plaintiff's case. In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010).

In judging the evidence at the summary judgment stage, the Court may not make credibility determinations or weigh conflicting evidence, Soremekun, 509 F.3d at 984, and it must draw all inferences in the light most favorable to the nonmoving party and determine whether a genuine issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011).

III. UNDISPUTED FACTS¹

A. Standard Operating Procedure No. 1440 ("SOP 1440")

1. Overview

The Fresno County Office of Education's ("FCOE") Management Salary Schedule sets forth the pay range for management-level employees. It consists of twelve levels. Each level has progressive steps within it. See Gunner Decl., Ex. G. Plaintiff and other math consultants were hired at Level 1. Level 1 has 10 steps, with pay ranging from $62,133 at Step 1 to $81,461 at Step 10. Id.

Prior to November 2004, Standard Operation Procedure No. 1038 ("SOP 1038") set forth the criteria for determining the proper step on the salary schedule for management-level employees "based on experience regarding the position awarded." Gabriel Dep., Ex. 15, ECF No. 14-3 at 89-91.

In November 2004, Standard Operation Procedure No. 1440 ("SOP 1440") was adopted to replace SOP 1038. Gabriel Dep., Ex. 15, ECF No. 14-3 at 99-100. Under SOP 1440, a new management employee's initial salary step is determined by verifying the daily rate of the employee's most recent position, adding a five-percent increase, and then placing that new employee on the next step that pays an amount at or above the five percent increase. Gabriel Decl. ¶ 4. Experience is no longer a factor in determining a candidate's placement on the salary schedule. See Gabriel Dep. at 49:2-6, Ex. 15. SOP 1440 also applies to FCOE employees being promoted. Gabriel Dep. at 27:2-5.

Laurie Gabriel, Administrator of FCOE's Human Resource's Department, has worked for FCOE since 1998, first as the Director of Human Resources, then Senior Director, and most recently as the Administrator. Gabriel Decl. ¶ 2. Although the policy of basing a management employee's initial salary on verified prior earnings plus a five-percent increase was not written until November 2004, FCOE has applied that policy since at least 1998 when Gabriel was first hired. Gabriel Decl. ¶ 5; see also Gabriel Dep. at 50:17—51:2.

2. Hiring Pursuant to SOP 1440

When a job opening at FCOE is posted, the salary range is posted along with the job description. Dueck Dep. at 18:21-22. An applicant receives no explanation as to how his or her starting salary will be determined unless he or she asks. See Gabriel Dep. at 30:22—31:4. An applicant does not learn what his or her actual starting salary will be until an offer is made. Gabriel Dep. at 30:10—31:4; Dueck Dep. at 18:6-14.

Defendant Jim Yovino, first hired on July 31, 2006 as a Deputy Superintendent, is now the Fresno County Superintendent for FCOE. Yovino Decl. ¶ 3. As Superintendent, Yovino's responsibilities include determining how salaries are set. Yovino Decl. ¶ 3. Yovino has hired or promoted a number of employees pursuant to SOP 1440, including Eric Crantz, Tina Nakasian, and Mike Chamberlain, all of whom work in Plaintiff's department and in the same position as Plaintiff²:

Tina Nakasian, a female, was hired on July 23, 2012, and placed on Step 8 of the management salary schedule pursuant to SOP 1440. Yovino Decl. ¶ 6c.

Eric Crantz, a male, was "on loan" from another Fresno County school district, Kingsburg Elementary School District, in 2009. Yovino Decl. ¶ 6e. He was being paid in accordance with that school district's salary schedule while performing services for FCOE. Yovino Decl. ¶ 6e. In July 2012, Crantz was hired as a permanent employee and placed on Step 9 of the management salary schedule in accordance with SOP 1440. Yovino Decl. ¶ 6e; Crantz Dep. at 15:19-22, Ex. 19. Within a day after signing his hiring contract, Crantz noticed that the salary information on it incorrectly showed him earning more than he was entitled to be paid. Crantz Dep. at 22:1-11. Within a day of bringing the error to the attention of the human resources department, Crantz signed a new contract with the correct salary information. Crantz Dep. at 22:15-20, 24:4-25.

Mike Chamberlain, a male, was hired on July 23, 2012, and placed on Step 7 of the salary schedule. Yovino Decl. ¶ 6d. When an offer was made to Chamberlain, he was unaware that salaries were determined by application of SOP 1440, and he tried to negotiate a higher salary by pointing out relevant contract and consultant work he did in addition to his primary job. Chamberlain Dep. at 16:14-23. Though he felt that his concerns were listened to, see Chamberlain Dep. at 17:16-25, his starting salary remained as determined under SOP 1440. Yovino Decl. ¶ 6d. Chamberlain's starting salary was based on a contract he had entered into with Caruthers Unified School District commencing on July 1, 2012, even though he had not actually begun work under that contract. Yovino Decl. ¶ 7. A day or two after signing his initial hiring contract, Chamberlain signed a new contract because the initial contract had incorrect salary information; as a result Chamberlain's salary was adjusted down. Chamberlain Dep. at 28: 3-19.

Since July 1, 2005, when Yovino's predecessor was hired, 9 female administrators were hired or promoted into management positions and placed on a higher step than Yovino's and his predecessor's initial placements. Yovino Decl. ¶ 9. During the same time frame, three male administrators were hired or promoted into management positions and placed on a step higher step than Yovino's and his predecessor's initial placements. Yovino Decl. ¶ 9.

3. Deviations from SOP 1440

There have been times when Defendant has deviated from the standards set forth in SOP 1440. When Elaine Sotiropoulous was hired as a management employee in January 2000, there were three different versions of the management salary schedule in effect. Yovino Decl. ¶ 8. Sotiropoulous was placed on Step 3, which may have been one step higher than she should have been placed under SOP 1440. Yovino Decl. ¶ 8.

In October 2008, Mark Hammons was promoted from an employee in the classified bargaining unit (a 12-month position) to a management position (an 11-month position). Yovino Decl. ¶ 7. Under SOP 1440, Hammons should have been placed at Step 1, but Yovino approved placement at Step 2 because of the fewer days Hammons would be working; otherwise, Hammons's promotion would have resulted in a pay cut. Yovino Decl. ¶ 7; Gabriel Decl. ¶ 6.

B. Plaintiff's Application and Employment with FCOE

Plaintiff, a female, has a Bachelor of Science in Mathematics Education, a Master's degree in Educational Technology, and a Master's degree in Mathematics Education. Pl. Dep. at 8:14-24, 9:2-14. Her work experience includes teaching high school math, physics and art at a public school, id. at...