S. JAMES OTERO, District Judge.
This matter is before the Court on Defendants Rawlings Mechanical Corporation ("Rawlings") and The Boeing Company's ("Boeing") (collectively, "Defendants") separate Motions for Summary Judgment, filed on November 16, 2010 and November 22, 2010, respectively. (Docket Nos. 14, 20.) Plaintiff Alexander M. Hill ("Plaintiff"), appearing in propria persona, submitted late Oppositions to the Motions for Summary Judgment on December 13, 2010.
Plaintiff was employed as a plumber by Boeing at the Santa Susana Field Laboratory in Chatsworth, California (the "Plant"), from approximately 1998 until April 2, 2009. (Compl. ¶¶ 2, 9; Decl. of Marie P. Holweger in Supp. of Rawlings' Mot. for Summ. J. ("MSJ") Ex. J ("Hill Dep.") 10:15-23.) Throughout his employment, Plaintiff was an active member of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America Union, Local 1519 (the "Union"). (Compl. ¶ 2.) Plaintiff's employment was governed by the collective bargaining agreement titled "Master Agreement Between the Boeing Company and the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW)" ("CBA Agreement"). (Id. ¶ 6; Decl. of Daniel F. Fears in Supp. of Boeing's MSJ ("Fears Decl.") Ex. B ("CBA Agreement").) Plaintiff alleges that, pursuant to the CBA Agreement, he was contracted to work from October 15, 2007 through October 14, 2010, to prepare the Plant for closure. (Compl. ¶ 6.)
Since the 1940s, the Plant has been used for large rocket engine research, assembly, and testing, and for nuclear energy research and development. (Decl. of Joyce Kucinskas in Supp. of Boeing's MSJ ("Kucinskas Decl.") ¶ 3.) Boeing, a major aerospace and defense corporation, acquired the Plant in 1996, when it merged with another corporation. (See id. ¶ 4.) By August 2005, Boeing had either moved most of its business operations at the Plant to other facilities or sold them. (Id. ¶¶ 5, 6.) Boeing, however, maintained employees on the Plant for the purpose of closing it down. (Id. ¶ 6.) In 2008, Boeing decided to close the Plant and approached representatives from the Union to negotiate lay-offs of the remaining employees at the Plant. (Id. ¶¶ 7, 8.) On January 27, 2009, Boeing and the Union entered into a Letter of Agreement that resolved all matters under the CBA Agreement pertaining to the Plant's closure. (Id. ¶ 10.) The Letter of Agreement provided that employees, who were members of the Union, were to be laid off on April 2, 2009. (Id.) The unionized employees, however, were to receive severance packages, including up to 13 weeks of severance pay. (Id.) The Letter of Agreement preserved Boeing's right to contract or subcontract out any or all of the operations for the Plant. (Fears Decl. Ex. C ("Letter of Agreement") 1.) Prior to the termination, Boeing requested that all the employees sign a Settlement and Release Agreement ("Release Agreement"). (Decl. of Alexander M. Hill ("Hill Decl.") in Opp'n to Rawlings' MSJ ¶ 6.) Plaintiff did not sign the Release Agreement. (Id.) On April 2, 2009, Boeing terminated Plaintiff's employment pursuant to the Letter of Agreement. (Compl. ¶ 9; Kucinskas Decl. ¶ 12.)
In or about February 2009, Boeing contractually hired Rawlings to provide support in operations at the Plant.
Montoya contacted Horney on April 1, 2009 and applied for the plumbing position. (Decl. of Patton Montoya in Supp. of Rawlings' MSJ ("Montoya Decl.") ¶ 3.)
On February 18, 2010, Hill filed suit against Boeing and Rawlings in state court, alleging a breach of contract claim against Boeing and an Age Discrimination in Employment Act ("ADEA") claim against Rawlings. (See generally Compl.) On March 10, 2010 and March 11, 2010, Plaintiff served Rawlings and Boeing with the Complaint, respectively. (Notice of Removal 3-4.) On April 5, 2010, Defendants removed the case. (Docket No. 1.)
Federal Rule of Civil Procedure ("Rule") 56(c) mandates that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To meet its burden, the moving party does not need to produce any evidence or prove the absence of a genuine issue of material fact. See id. at 325, 106 S.Ct. 2548. Rather, the moving party's initial burden "may be discharged by `showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Id. Once the moving party meets its initial burden, Rule 56(e) shifts the burden to the nonmoving party and requires it to "set out specific facts showing a genuine issue for trial" beyond those alleged in its pleading. Fed.R.Civ.P. 56(e); see also Celotex, 477 U.S. at 324, 106 S.Ct. 2548. "The mere existence of a scintilla of evidence in support of the [nonmoving party]'s position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ("[O]pponent must do more than simply show that there is some metaphysical doubt as to the material facts.") (citation omitted). Further, "[o]nly disputes over facts that might affect the outcome of the suit ... will properly preclude the entry of summary judgment [and] [f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (citation omitted). For a summary judgment motion, a court does not make credibility determinations or weigh conflicting evidence. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505. A court is required to draw all inferences in a light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (citation omitted).
Defendant Boeing asserts that Plaintiff's breach of contract claim is preempted by § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a). (Boeing's MSJ 7:6-8:8.) Plaintiff does not address whether his state law claim is preempted. (See generally Opp'n to Boeing's MSJ.)
Pursuant to § 301 of the LMRA, "[s]uits for violations of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... may be brought in any district court of the United States...." 29 U.S.C. § 185(a). The Supreme Court has long held that "in enacting [§] 301[,] Congress intended doctrines of federal labor law uniformly to prevail over inconsistent local rules." Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 104, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962). The high court reasoned that "the possibility of conflicting substantive interpretation under competing legal systems would ... stimulate and prolong disputes ... [and] might substantially impede the parties' willingness to agree to contract terms...." Id. This would "frustrate[] the effort of Congress to ... [promote industrial peace, and] thus strike[ ] at the very core of federal labor policy." Id.
Thus, in Local 174, Teamsters v. Lucas Flour Co., 369 U.S. at 103-04, 82 S.Ct. 571, the Supreme Court held "that a suit in state court alleging a violation of a provision of a labor contract must be brought under § 301 and be resolved by reference to federal law." Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985) (reiterating the holding of Lucas Flour); see also Caterpillar, Inc. v. Williams, 482 U.S. 386, 394, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) ("[T]he pre-emptive force of § 301 is so powerful as to displace entirely any state cause of action `for violation of a collective bargaining agreement.'") (citation omitted and edits in original). Subsequently, the Supreme Court expanded the preemptive force of § 301 to cover claims whose resolution "is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract...." Lueck, 471 U.S. at 220, 105 S.Ct. 1904 (holding that a state law tort of "bad faith" was based on breach of duties contained in the CBA, and was thus preempted). State law claims preempted by § 301 "must either be treated as a § 301 claim ... or dismissed as pre-empted by federal labor-contract law." Id. (internal citation omitted). Though powerful, § 301 does not preempt "a question of state law, entirely independent of any understanding embodied in the collective-bargaining agreement between the union and the employer." Livadas v. Bradshaw, 512 U.S. 107, 125, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994). "[W]hen the meaning of contract terms is not the subject of dispute, the bare fact that a collective-bargaining agreement will be consulted... does not require the claim to be extinguished...." Id. at 124, 114 S.Ct. 2068 (internal citation omitted).
Plaintiff's breach of contract claim is preempted by § 301 of the LMRA. Plaintiff alleges that Boeing violated the CBA Agreement by terminating his employment "without good cause and in an effort to replace union members with independent contractors." (Compl. ¶ 9.) The resolution of Plaintiff's claim is directly dependent upon analysis of the terms of the CBA Agreement. The CBA Agreement permits Boeing to "discharge and discipline employees for justifiable reason." (CBA Agreement 29.) The Court would have to
Pursuant to settled Supreme Court precedent, Plaintiff's breach of contract claim is preempted by § 301. Accordingly, Boeing's Motion for Summary Judgment is GRANTED.
The ADEA prohibits an employer "to fail or refuse to hire ... any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's age...." 29 U.S.C. § 623(a)(1). "Discrimination can be established in either of two ways-by direct evidence, or by indirect evidence." Cozzi v. County of Marin, No. C08-3633, 2010 WL 1532359, at *4 (N.D.Cal. Apr. 16, 2010) (citations omitted). "Direct evidence, in the context of an ADEA claim, is defined as `evidence of conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the alleged discriminatory attitude ....'" Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d 802, 812 (9th Cir.2004) (citation omitted). "Circumstantial evidence, in contrast, is evidence that requires an additional inferential step to demonstrate discrimination." Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir.2005). "The distinction between direct and circumstantial evidence is crucial, because it controls the amount of evidence that the plaintiff must present in order to defeat the employer's motion for summary judgment." Id. A plaintiff need only offer "`very little' direct evidence to raise a genuine issue of material fact." Id. (citation omitted). When a plaintiff relies on circumstantial evidence, however, that evidence must be "specific and substantial" to defeat the employer's motion for summary judgment. Id. at 1095-96 (citations omitted).
The Ninth Circuit "evaluate[s] ADEA claims that are based on circumstantial evidence of discrimination by using the three-stage burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir.2008) (citation omitted). Under the McDonnell Douglas framework set forth by the Supreme Court, "the [plaintiff] must first establish a prima facie case of age discrimination." Id. (citation omitted). A plaintiff may prove a prima facie case by showing that: "(1) he was at least 40 years old at the time of the alleged discrimination; (2) he was subjected to an adverse employment action; (3) he was otherwise qualified for the position; and (4) after he was rejected, a substantially younger applicant was selected." EEOC v. Timeless Invs., Inc., 734 F.Supp.2d 1035, 1062 (E.D.Cal. 2010) (citations omitted); see also Coghlan, 413 F.3d at 1094. If the plaintiff establishes a prima facie case, "[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employer's rejection." McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. "If the employer satisfies its burden, the [plaintiff] must then prove that the reason advanced by the employer constitutes mere pretext for unlawful discrimination."
Plaintiff has not put forth any direct evidence of age discrimination. He relies on circumstantial evidence of age discrimination, namely that "Rawlings had access to a document which references the... age for each of the ... [Boeing] employees laid off on April 2, 2009." (Opp'n to Rawlings' MSJ 4:15-16.) Plaintiff also alleges that Horney believed Plaintiff was not interested in the position and "had retired" based on Aubuchon's representation. (Id. at 5:1-2.)
Despite Ninth Circuit precedent, Rawlings argues that the framework in McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. 1817, is inapplicable to the case at hand. (See Rawlings' MSJ 7:25-27; Rawlings' Reply 9:20-21.) Rawlings seemingly misconstrues the Supreme Court's recent decision in Gross v. FBL Financial Services, Inc., ___ U.S. ___, 129 S.Ct. 2343, 2352, 174 L.Ed.2d 119 (2009), as a complete rejection of the McDonnell Douglas framework. In Gross, the Supreme Court clarified that "a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the `but-for' cause of the challenged adverse employment action." Id. The Supreme Court concluded that "[t]he burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision." Id. While the Supreme Court may have rejected burden-shifting, the high court expressly stated that it "has not definitively decided whether the evidentiary framework of McDonnell Douglas ... utilized in Title VII cases is appropriate in the ADEA context." Gross, 129 S.Ct. at 2349 n. 2 (citations omitted).
The Ninth Circuit has not had the opportunity to decide whether the Supreme Court in Gross, 129 S.Ct. at 2352, abrogated the framework in McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. 1817.
Accordingly, the Court finds that the McDonnell Douglas framework is applicable to the case at hand. The Court must abide by Ninth Circuit precedent applying the McDonnell Douglas framework to ADEA cases unless, and until, the Ninth Circuit or the Supreme Court mandates otherwise.
As aforementioned, Plaintiff may prove a prima facie case by showing that: (1) he was at least 40 years old at the time of the alleged discrimination; (2) he was not hired for the position; (3) he was otherwise qualified for the position; and (4) after he was rejected, a substantially younger applicant was selected. Timeless Invs., Inc., 734 F.Supp.2d at 1062. The "requisite degree of proof necessary to establish a prima facie case for ... ADEA claims on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence." Coghlan, 413 F.3d at 1094 (citations omitted and italics in original).
The undisputed facts of the case present an insurmountable barrier for Plaintiff to prove a prima facie case of age discrimination. At the time of the alleged incident, Plaintiff was 66 years old. (Compl. ¶ 15.) He was also qualified for the plumbing position, having held the position of a "Plumber-Pipefitting Operator" for approximately 20 years. (Hill Decl. in Opp'n to Rawlings' MSJ ¶¶ 20, 30.) Plaintiff, however, cannot show that he was rejected for the plumbing position or that a younger applicant was selected instead of him. Plaintiff did not apply for the plumbing position until the position had been filled by Montoya. (Opp'n to Rawlings' MSJ 4:19-22; Hill Dep. 77:6-21.) By the time Plaintiff contacted Rawlings on May 11, 2009, to inquire about the position, Montoya had been employed for about a month. (See Montoya Decl. ¶ 3; Horney Decl. ¶ 6.) Plaintiff cannot be rejected for a position that he never actually applied to or for a position that does not exist, and therefore, Rawlings could not have selected Montoya because he was younger than Plaintiff.
Plaintiff, appearing in propria persona, does not raise the argument that he effectively applied for the plumbing position by expressing interest in working for Rawlings to Aubuchon on or about April 2, 2009.
Accordingly, Plaintiff's ADEA claim against Rawlings fails as a matter of law because Plaintiff is unable to prove a prima facie case of age discrimination.
Assuming, arguendo, that Plaintiff is able to make a prima facie case of age discrimination, Plaintiff's ADEA claim would still fail as a matter of law because he cannot prove that, "but for" his age, he would have been hired. The Supreme Court in Gross, 129 S.Ct. at 2352, held unequivocally that "a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the `but-for' cause of the challenged adverse employment action." Under the "but-for" causation standard, "a plaintiff must show that age was `the reason' for the adverse employment action; there is no ADEA liability for `mixed motive' employment actions." Timeless Invs., Inc., 734 F.Supp.2d at 1062 (citations omitted).
Plaintiff's own testimony supports the conclusion that Plaintiff's age was not the "but for" cause of his rejection. Firstly, as stressed above, Plaintiff did not apply for the position until the position had been filled by Montoya for over a month. (Hill Dep. 76:19-77:12.) Rawlings had neither knowledge nor notice of Plaintiff's interest in the plumbing position. (Id. at 76:4-25; Horney Decl. ¶ 7.) Thus, Plaintiff's age cannot be "the reason" Montoya was hired. Secondly, Plaintiff himself believes that Montoya was proffered the position because of: (1) nepotism; (2) Boeing's intent to retaliate against Plaintiff for not signing the Release Agreement; (3) Montoya's ability to "kiss-up"; (4) Montoya's better understanding and knowledge of the Plant's terrain; (5) Plaintiff's age; and (6) Boeing conditioning the contract to service the Plant upon Rawlings hiring Montoya. (Hill Dep. 82:9-86:15.) Among these mixed motives, Plaintiff does not have evidence to prove that his age was "the reason" he did not get the position. In a deposition, Plaintiff expressly stated that he did not have any personal knowledge or any evidence as to Rawlings hiring Montoya because of his comparative youth.
Furthermore, "ADEA does not make it unlawful for an employer to do a poor job of selecting employees. It merely makes it unlawful to discriminate on the basis of age." Cotton v. City of Alameda, 812 F.2d 1245, 1249 (9th Cir.1987) (citation omitted). For the case at hand, Rawlings could have done a better job of hiring by advertising the position and its qualifications, interviewing more than one applicant, and having a more general transparent process. Viewing the undisputed facts in a light most favorable to Plaintiff, nepotism, Boeing's intent to retaliate against Plaintiff for not signing the Release Agreement, Montoya's interpersonal skills, and pressure from Boeing to hire Montoya could all have been factors in Rawlings' decision to hire Montoya. If true, these factors may transgress notions of morality and fairness. They, however, are not grounds for an ADEA claim. None of these factors are prohibited by the ADEA.
Accordingly, Rawlings' Motion for Summary Judgment is GRANTED.
For the foregoing reasons, Boeing and Rawlings' Motions for Summary Judgment are
IT IS SO ORDERED.
(Hill Dep. 128:15-18.)