Peters v. Shamrock Foods Company

Full title: Kimberly Peters, Plaintiff, v. Shamrock Foods Company; U.S. Foodservice…

Court: United States District Court, D. Arizona

Date published: Jan 17, 2006

No. CV 03-02578-PHX-JAT (D. Ariz. Jan. 17, 2006)

Opinion

No. CV 03-02578-PHX-JAT.

January 17, 2006

ORDER

JAMES TEILBORG, District Judge

Pending before the Court is Defendant Shamrock Foods Company's (Shamrock) Motion For Summary Judgment (doc. #41). The Court now rules on the motion.

I. BACKGROUND

The Plaintiff filed an administrative charge with the EEOC on January 23, 2002, alleging that due to her gender she was passed over for several positions in favor of less qualified male employees. Those positions are: (1) wholesale manager; (2) food services sales manager; (3) external marketing manager; (4) sales manager, food services and retail; and (5) sales manager, food services and retail. The male employees allegedly promoted over the Plaintiff are: (1) Joe Baca; (2) Matt Lewis; (3) Tim Kelly; (4) Stan Westphal; and (5) Dave Cooper.

On April 11, 2002, the Plaintiff filed a supplement to the January 23, 2002 EEOC Charge of Discrimination, adding an allegation that she was passed over for the position of external marketing representative in favor of a less qualified male employee, Bob Bathey. The Plaintiff's Amendment to her EEOC Charge of Discrimination also clarified the dates the other allegedly discriminatory incidents took place.

Specifically, the Plaintiff alleges: (1) the position of external marketing representative was filled with a less qualified male employee in September of 2000; (2) the position of external marketing manager was filled with a less qualified male employee in November of 2001; (3) the position of wholesale manager was filled with a less qualified male employee in November of 2001; (4) the two sales manager, food services and retail positions were filled with less qualified male employees in November of 2001; and (5) the position of food services sales manager was filled with a less qualified male employee sometime in January of 2002.

On December 26, 2003, the Plaintiff filed a Complaint against the Defendants in the United States District Court of the District of Arizona. On December 12, 2004, the Plaintiff filed a First Amended Complaint alleging three counts: (1) gender discrimination and retaliation under Title VII; (2) violations of the Equal Pay Act, 29 U.S.C. § 206(d); and (3) blacklisting under Ariz. Rev. Stat. ("A.R.S.") § 23-1362.

On March 17, 2004, Defendant Shamrock filed a Motion to Dismiss and/or Motion for Partial Summary Judgment. In its motion, the Defendant sought to have this Court dismiss the Plaintiff's claims on the grounds that Counts One and Two of the Plaintiff's Complaint are not timely, and that Count Three is unsubstantiated. However, because the Defendant conceded in its Reply that Count One of the Complaint was timely, the Court only considered the motion as it applied to Counts Two and Three.

On June 18, 2004, the Court denied in part and granted in part Defendant Shamrock's Motion to Dismiss and/or Motion for Partial Summary Judgment. The Court denied the Motion to Dismiss and Motion for Summary Judgment with respect to Count One of the Plaintiff's Complaint (gender discrimination). It granted summary judgment in favor of Defendant Shamrock with respect to Counts Two and Three of the Plaintiff's Complaint (equal pay violations and blacklisting). Subsequently, on August 18, 2004, pursuant to stipulation of the parties, this Court dismissed Defendant U.S. Foodservice, Inc.

On August 19, 2004, the Court sent out its Rule 16 Scheduling Order. The scheduling order states that each party is only allowed one motion for summary judgment. On April 29, 2005, Defendant Shamrock, without leave of court, filed a second Motion for Summary Judgment on the claims remaining in Count One of the Plaintiff's Complaint.

II. LEGAL ANALYSIS AND DISCUSSION

As an initial matter, the Court notes that the Defendant does not attempt to re-litigate issues raised in its prior Motion for Summary Judgment. Additionally, the Plaintiff did not object to the Defendant's filing of a second Motion for Summary Judgment. Therefore, in the interest of limiting the issues for trial, the Court will consider the Defendant's motion on the merits.

The standard for summary judgment is set forth in Rule 56(c) of the Federal Rules of Civil Procedure. Under this rule, summary judgment is properly granted when: (1) no genuine issues of material fact remain; and (2) after viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987). The Court must regard as true the non-moving party's evidence, if it is supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Eisenberg, 815 F.2d at 1289. However, the non-moving party may not merely rest on its pleadings, it must produce some significant probative evidence tending to contradict the moving party's allegations and thereby creating a material question of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S.Ct. 2505, 2513-14 (1986) (holding that the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592 (1968).

A. Retaliation and Constructive Discharge

Count One of the Plaintiff's First Amended Complaint alleges that the Defendant's conduct "constitutes sexual discrimination and retaliation as prohibited by Title VII. The Defendant moves for summary judgment on the claim of retaliation on the grounds that: (1) the claim has already been dismissed by this Court; and (2) the Plaintiff's Complaint does not allege a claim of retaliation relating to the denial of benefits. The Defendant also moves for summary judgment on any gender discrimination claims based on an alleged constructive discharge. The Defendant argues that: (1) the Plaintiff did not file an EEOC charge alleging constructive discharge; and (2) there is no evidence in this case amounting to a constructive discharge.

The Plaintiff responds to the Defendant's Motion for Summary Judgment by stating:

The First Amended Complaint states a single claim for relief for violation of Title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq., for employment discrimination by sex, to wit, disparate treatment — failure to promote, in violation of 42 USC 2000e-2.

Response to Defendant's Motion For Summary Judgment p. 3 (emphasis added). The Plaintiff's Response makes no attempt to refute the Defendant's arguments as to why judgment should be entered in favor of the Defendant with respect to the retaliation claim. Similarly, the Plaintiff failed to address what facts in this case support a finding that the Plaintiff's resignation on July 18, 2002, constitutes a constructive discharge. In fact, the Plaintiff does not even mention a retaliation claim or a claim of gender discrimination based on constructive discharge anywhere in her Response to the Defendant's Motion for Summary Judgment.

Because the Plaintiff's Response to the Defendant Motion for Summary Judgment states that the Plaintiff only alleges a "single claim" of gender discrimination based on failure to promote, and does not even attempt to argue the viability of any alleged retaliation or constructive discharge claims, it is unclear to the Court whether the Plaintiff ever intended to assert a claim of retaliation and/or constructive discharge, or whether the Plaintiff is now voluntarily abandoning those claims. Regardless, a party opposing summary judgment may not merely rely on the allegations in its complaint, it must produce some significant probative evidence tending to contradict the moving party's allegations and thereby creating a material question of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S.Ct. 2505, 2513-14 (1986) (holding that the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592 (1968). Because the Plaintiff has failed to come forward with any facts or evidence that would indicate a material question of fact exists for trial, summary judgment is granted in favor of the Defendant on the Plaintiff's claims of retaliation and/or constructive discharge.

Based on the above ruling, the Court need not address the Defendant's remaining arguments with respect to the claims of constructive discharge and retaliation.

B. Discrimination based on gender

The remaining count in the Plaintiff's First Amended Complaint alleges that the Defendant failed to promote her on three separate occasions because she is a woman. The Defendant moves for summary judgment on this claim on the ground that: (1) the Plaintiff did not timely file an EEOC charge with respect to one of the three positions; (2) the positions sought by the were not promotions and do not otherwise constitute an "adverse employment action" for purposes of Title VII; (3) the Plaintiff was not "rejected" for a position; (4) assuming the positions do qualify as promotions, the Defendant had a legitimate non-discriminatory reason for failing to put the Plaintiff in those positions; and (4) the Plaintiff has not presented sufficient evidence of pretext to withstand summary judgment.

The Defendant argues that the Plaintiff failed to timely file an EEOC Charge of discrimination alleging her claim of failure to promote with respect to the position of external marketing manager. Specifically, the Defendant contends that the Plaintiff did not file a charge alleging this claim until approximately 500 days after the alleged promotion took place.

The statute of limitations for Title VII actions is 300 days prior to the filing of a state administrative charge. 42 U.S.C. § 2000e-5(e)(1); Hernandez v. Spacelabs Medical Inc., 343 F.3d 1107, 1115-16 (9th Cir. 2003). The Plaintiff filed an administrative charge with the EEOC on January 23, 2002. Therefore, incidents occurring prior to March 29, 2001, are time-barred by Title VII.

The Plaintiff filed an administrative charge with the EEOC on January 23, 2002, alleging that, due to her gender, she was passed over for the position of external marketing manager in favor of a less qualified male employee. In an April 11, 2002, supplement to the January 23, 2002, EEOC Charge of Discrimination, the Plaintiff alleges that the position of external marketing manager was given to a male employee, Tim Kelly, sometime in November of 2001. This incident is within the statute of limitation period. However, the supplement also states that the Plaintiff was passed over for the position of external marketing representative, and that this position was given to Bob Bathey in approximately September of 2000. This incident is outside the 300 day time limitation. Therefore, the Plaintiff cannot base her claim of failure to promote based on the external marketing representative given to Bob Bathey in September of 2000.

Accordingly, the Court holds that the Plaintiff's failure to promote claim is limited to the following incidents: (1) rejection of the Plaintiff for the position of external marketing manager, in favor of a male employee, Tim Kelly, sometime in November of 2001; (2) rejection of the Plaintiff for the position of wholesale manager in favor of a male employee, Joe Baca, sometime in November of 2001; (3) rejection of the Plaintiff for the position of sales manager, food services and retail in favor of a male employee, Stan Westphal sometime in November of 2001; (4) rejection of the Plaintiff for the position of sales manager, food services and retail in favor of a male employee, Dave Cooper, sometime in November of 2001; and (5) rejection of the Plaintiff for the position of food services sales manager, in favor of a male employee, Matt Lewis, sometime in January of 2002.

The Defendant contends that the Plaintiff has not shown an adverse employment action with respect to the Plaintiff's allegations of lack of a desk and/or office work space, and the Defendant's failure to provide her with a lap-top computer and to invite her to after hours non-work related sporting events. The Defendant also states that the Plaintiff has failed to show that any of the allegations constitute a constructive discharge. The Plaintiff's Response to the Defendant's Motion for Summary Judgment makes it clear that the only claim that she is proceeding on is one for disparate treatment based on failure to promote.

The Plaintiff's Response makes no argument that the failure to provide her with a lap-top computer, the lack of a desk and/or office space, or the failure to invite her to sporting events, or other of the acts alleged constitute an adverse employment action. Similarly, she does not argue that she was constructively discharged. Accordingly, this Court will analyze the Plaintiff's Complaint with respect to her single remaining claim, disparate treatment relating to her alleged failure to promote. While the other allegations of discriminatory conduct in this case may be relevant to showing that the Defendant's actions were a pretext to discrimination, because the Plaintiff's claim is not predicated on those acts, it is not necessary that those acts in of themselves constitute "adverse employment actions."

The parties in this case disagree as to whether or not the positions at issue in this case were, in fact, "promotions" upon which the Plaintiff can base her Title VII claim. The Defendant claims that it merely shuffled job responsibilities and argues that it did not create any additional positions to which the Plaintiff could have applied or been rejected. The Defendant also argues that the jobs did not provide any additional salary increases or incentives. Therefore, the Defendant concludes, the alleged failure to place the Plaintiff in any of these positions does not rise to the level of an adverse employment action.

The Ninth Circuit takes a fairly broad view of the phrase adverse employment action. Ray v. Henderson, 217 F.3d 1234, 1240-41 (9th Cir. 2000). As a result, a wide array of disadvantageous changes in the workplace constitute adverse employment actions. Id. at 1240. Not every employment decision amounts to an adverse employment action. Strother v. Southern Ca. Permanente Medical Group, 79 F.3d 859, 869 (9th Cir. 1996). However, a denial of a promotion clearly qualifies as an adverse employment action. See, e.g., Bergene, 272 F.3d 1136, 1141 (9th Cir. 2001); Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000).

The Defendant, of course, denies that there is any evidence that the Plaintiff was denied a "promotion" and states that the evidence indicates that at most, she would have been deprived of a lateral move with no changes in salary, benefits or incentives. The Defendant presented deposition testimony that indicates that none of the male employees allegedly promoted over the Plaintiff received raises. However, the evidence also indicates that these male employees; Stan Westphal (prior distribution and "pre-order sales" manager with responsibility for supervising dairy drivers), David Cooper (prior manager of "pre-order writers" and responsibility for managing convenience store sales), and Tim Kelly (prior "C store sales manager"), were already in supervisory or managerial positions at the time they were moved into their respective new positions.

The evidence indicates that the Plaintiff, by contrast, was in a "non-managerial sales position," and sold dairy products at the time she applied for the managerial positions. The Plaintiff was not in the same position as the male employees who were ultimately hired. And the evidence does not support a finding that had the Plaintiff moved from a sales position to a managerial position, it would have been considered a promotion, and she a would not have received any increase in salary, benefits, or other tangible advantageous changes in her employment.

In fact, Elliot Begoun testified in his deposition that Matt Lewis moved from his former position in food sales to the position of food service sales manager because sales positions necessarily involve a "rough quality of life." According to Mr. Begoun, sales associates "work all the time" and are "at the beck and call of [their] customers throughout the weekend." Mr. Begoun testified that the position of sales manager "affords . . . more normalization" than a general sales position. Additionally, although Matt Lewis apparently took a decrease in pay to accept the position, Mr. Begoun refers to Matt Lewis' transition into the sales manager position as a "promotion," and specifically states that "we try to promote within whenever we can."

Even assuming that the Plaintiff would not have received any additional compensation had she been promoted from a sales position to one of the managerial positions, this Court finds that the Plaintiff's alleged denial of employment opportunities with better working conditions and an increase in "status" and responsibility is sufficient to constitute an adverse employment action for purposes of her failure to promote claim. See, e.g., Little, 301 F.3d at 969 (defining adverse employment action and providing examples of adverse employment actions); Strother, 79 F.3d at 869 (same). The Plaintiff's allegations that she was passed over and remained in a disadvantageous work environment is sufficient under the broad standard of adverse employment action articulated by the Ninth Circuit. See, Vasquez, 349 F.3d at 645-46; see e.g., Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 2268 (1998) (tangible employment action is "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits").

Title VII makes it an unlawful employment practice for an employer to refuse to hire an individual because of her sex. 42 U.S.C. § 2000e-2(a)(1). In responding to a summary judgment motion in a Title VII disparate treatment case, a plaintiff may produce direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated the defendant's decision, or alternatively may establish a prima facie case under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1037 (9th Cir. 2005).

The Plaintiff can make out a prima facie case of failure to promote, by showing that (1) she belongs to a protected class; (2) she applied for and was qualified for the position she was denied; (3) she was rejected despite her qualifications; and (4) the employer filled the position with an employee not of plaintiff's class, or continued to consider other applicants whose qualifications were comparable to plaintiff's after rejecting plaintiff. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Dominguez-Curry, 424 F.3d at 1037.

At the summary judgment stage, the degree of proof necessary to establish a prima facie case is "minimal and does not even need to rise to the level of a preponderance of the evidence." Lyons v. England, 307 F.3d 1092, 1112 (9th Cir. 2002) (internal quotations and citations omitted); Chuang v. Univ. of Ca. Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000).

Here, it is not in dispute that the Plaintiff: (1) is female; (2) sought employment opportunities on the above mentioned occasions; and (3) all the positions were filled by male individuals. The Defendant disagrees that: (1) the employment opportunities were "promotions; (2) the Plaintiff was qualified for the positions; and (3) the subsequently hired male employees qualifications were similar or equivalent to the Plaintiff.

As noted above, the Plaintiff has presented sufficient evidence to show that the alleged positions qualify as promotions or adverse employment actions for purposes of withstanding summary judgment. Additionally, the depositions and affidavits presented by both the Defendant and the Plaintiff acknowledge the Plaintiff's desire and attempts to move up into a managerial position. There is significant discussion and conflicting evidence regarding the Plaintiff's qualifications for a managerial position in general, as well as the qualifications of the male employees that were actually hired. See, e.g., Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 659-60 (9th Cir. 2002) (emphasizing the low threshold for a prima facie case and holding that even an employee's self-assessment is relevant evidence). Accordingly, the Court finds that the Plaintiff has met her initial burden of establishing a question of fact for trial with respect to her prima facie case. See, e.g., Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994) (the amount of evidence that must be produced in order to create a prima facie case is "very little.").

Once a plaintiff has made a prima facie showing of discrimination, the burden shifts to the defendant to produce evidence that it had a legitimate, non-discriminatory reason for its actions. Bradley v. Harcourt, Brace, and Co., 104 F.3d 267, 270 (9th Cir. 1996) To accomplish this, the employer must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection. Lyons, 307 F.3d at 1112. If the employer meets this burden, the presumption of unlawful discrimination "simply drops out of the picture," and the burden shifts back to the employee. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 2749 (1993).

Here, the Defendant has presented evidence that it had legitimate nondiscriminatory reasons for its actions, namely that the Plaintiff was less qualified for the positions than the male employees the Defendant ultimately hired. In support of its argument the Defendant provides evidence that all of the employees placed in the available positions had prior management or supervisory experience, while the Plaintiff did not.

Additionally, the Defendant provides evidence that the Plaintiff received several reviews which suggested that the Plaintiff lacked the necessary leadership skills to be promoted to a management position. Specifically, the Plaintiff's March 17, 2000, performance appraisal indicated that the Plaintiff needed to work on her interpersonal skills. The evaluation indicates that some of the qualities that made the Plaintiff a good sales person, hinders her ability to "relate to others interpersonally," and the Plaintiff's March 27, 2001, performance appraisal indicates deficiencies in the Plaintiff's leadership skills.

The Plaintiff's supervisor, Elliot Begoun, avowed in his affidavit and testified in his deposition that the Plaintiff had a tendency to become difficult to work with when problems or challenges arose. He stated that the Plaintiff's aggressive and passionate work habits made her a great sales person, but made it a challenge for her to interrelate with her coworkers and be a consensus builder or a team builder. He stated that there were instances when the Plaintiff "stepped on some toes," and that he could recall numerous employees that had "issues" or "run-ins" with the Plaintiff. He commented that the Plaintiff did not handle constructive criticism well, and that she sometimes reacted inappropriately to challenges. He indicated that when problems arose, the Plaintiff had a tendency to focus on the cause of problem rather than finding a solution. He felt that while identifying a problem is a sign of awareness, solving problems is a leadership skill that managers need. He felt that the Plaintiff lacked this skill, and that she needed to work on this skill, as well as her ability to relate to people interpersonally, before she would be suitable for a management position.

The evidence presented by both the Defendant and the Plaintiff suggests that the Defendant had legitimate nondiscriminatory reason for passing over the Plaintiff for the managerial positions at issue in this case, namely, that the Plaintiff's lack of interpersonal and leadership skills rendered her unsuitability for the available positions. Therefore, the Plaintiff must now produce sufficient evidence to raise a genuine issue of material fact as to whether the Defendant's proffered nondiscriminatory reason is merely a pretext for discrimination. Dominguez-Curry, 424 F.3d at 1037; Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th Cir. 2000).

The Plaintiff can show pretext either: (1) by providing direct evidence of discrimination showing that unlawful discrimination more likely than not motivated the employer; or (2) indirectly, by showing that the employer's proffered explanation is unworthy of credence because it is inconsistent or otherwise not believable. Dominguez-Curry, 424 F.3d at 1037; Lyons, 307 F.3d at 1113; Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220-22 (9th Cir. 1998).

Direct evidence is evidence which, if believed, proves the fact of discriminatory animus "without inference or presumption." Coghlan v. American Seafoods Co. L.L.C., 413 F.3d 1090, 1095 (9th Cir. 2005) (citing Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998) (internal quotation and citation omitted)). Direct evidence of employment discrimination is rare. Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 662 (9th Cir. 2002). This type of evidence consists of openly sexist, racist, or similarly discriminatory statements or actions by the employer. Coghlan, 413 F.3d at 1095.

Circumstantial evidence, by contrast, requires an additional inferential step to demonstrate discrimination. Id. The distinction between direct and circumstantial evidence is crucial, because it controls the amount of evidence that the Plaintiff must present in order to establish a pretext for discrimination. Id. Because direct evidence is so probative, a plaintiff need offer "very little" direct evidence to raise a genuine issue of material fact. Godwin, 150 F.3d at 1221. But when a plaintiff relies on circumstantial evidence, that evidence must be "specific and substantial" to defeat the employer's motion for summary judgment. Coghlan, 413 F.3d at 1095.

Despite the Plaintiff's contention, the Defendant's statement to the Plaintiff that she did not get a particular promotion because the job required traveling and the Plaintiff is a "mom," is not direct evidence of discrimination. Presuming the statement to be true, there is at most an inference that, as a "mom," the Plaintiff would be unable to travel because she has children. This inference could apply equally to male or female employees who are parents and does not directly show animosity for the Plaintiff's gender or an intent to discriminate based on gender.

The Plaintiff may still rely on circumstantial evidence to show pretext but must provide specific and substantial evidence. Lyons, 307 F.3d at 1113. The Plaintiff can meet this burden of proof in two ways. First, the Plaintiff can make an affirmative case that the employer is biased. Coghlan, 413 F.3d at 1095. For example, statistical evidence is circumstantial evidence that could, if sufficiently probative, point to bias. Id.; Aragon, 292 F.3d at 663. Second, the Plaintiff can provide evidence showing that the employer's proffered explanation for the adverse action is "unworthy of credence" and not to be believed. Coghlan, 413 F.3d at 1095.

Here, the Plaintiff points to the EEOC's Reasonable Cause Finding as evidence of pretext. Specifically, the Plaintiff argues that the statistical evidence relied upon by the EEOC shows that the Defendant had a pattern or practice of failing to promote female employees. The EEOC determination states that "analysis of [the Defendant's] workforce data indicates a statistically significant shortfall in females in management position as compared to other employees in [the Defendant's] industry in the Phoenix metropolitan area." The workforce data relied upon by the EEOC indicated that in 2001, only 13.6 percent of the Defendant's 169 managers were female.

The Defendant argues that the statistical evidence relied upon by the EEOC report is "meaningless" because it does not account for other variables besides gender. The Defendant points out that while the EEOC statistics show that only 13 percent of female employees are in managerial positions, 73.9 percent of the Defendant's female employees were employed in "professional" positions.

A plaintiff may introduce the EEOC's finding of reasonable cause into evidence. Gifford v. Atchison, Topeka and Santa Fe Railway, 685 F.2d 1149, 1156, n. 4 (9th Cir. 1982). An EEOC determination can, in some cases, create an issue of fact sufficient to warrant proceedings beyond summary judgment. Id. at 1156. However, although statistics are often probative in determining the existence of a pattern or practice of disparate treatment, their usefulness in proving pretext depends upon their relevance to the specific decision or decisions affecting the individual plaintiff, and not those that affect plaintiff's protected class in general. Penk v. Oregon State Bd. of Higher Educ., 816 F.2d 458, 462-63 (9th Cir. 1987).

The Court agrees with the Defendant that the statistics relied upon by the EEOC and the Plaintiff are flawed in that they fail to discuss variables that might provide a non-discriminatory reason for the statistical data. For example, the statistics relied upon by the EEOC reflect that only 19.9 percent of the Defendant's 1,534 employees in 2001were women. It seems fairly obvious to this Court that there would be some relationship between the low number of women employed by the Defendant, and the low number of women in management positions. Yet the EEOC report does not discuss this variable. It seems to the Court that all that the Plaintiff has shown is that in general the Defendant has a disproportionate number of men in its work force.

The statistical evidence relied upon by the EEOC, and the Plaintiff, is too broad to provide independent evidence of pretext. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1284 (9th Cir. 2000). While the statistics show that only 13 percent of female employees are in managerial positions, this does not take into account any variables that might explain the variation, such as education level, prior work experience with the Defendant, and the overall percentage of women as compared to men in the relevant data pool. The Plaintiff has failed to provide any additional evidence, including comparative or statistical evidence, that would allow this Court to fairly draw an inference of pretext.

The Court has taken into consideration all of the evidence presented by the Plaintiff. While the evidence is sufficient to support a prima facie case of discrimination, it is not specific or substantial enough to overcome the Defendant's evidence of a legitimate non-discriminatory reason for its actions and establish a pretext of discrimination.

Accordingly,

IT IS ORDERED GRANTING the Defendant's Motion for Summary Judgment (doc. #41).

IT IS FURTHER ORDERED the Clerk of the Court shall enter Judgment in favor of Defendant Shamrock Foods Company and terminate this case.