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1 The parties consented to my jurisdiction for all

proceedings including entry of final judgment pursuant to 28

U.S.C. § 636(c).

1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ANDREA GORDON,

Plaintiff,

v.

THE BAY AREA AIR QUALITY

MANAGEMENT DISTRICT,

Defendants.

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No. C08-3630 BZ

ORDER GRANTING IN PART AND

DENYING IN PART DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT

Before the Court is defendant Bay Area Air Quality

Management District’s (“defendant”) motion for summary

judgment on all eight of plaintiff Andrea Gordon’s

(“plaintiff”) claims.1 Defendant’s motion is GRANTED IN PART

and DENIED IN PART for the following reasons.

Exhaustion of Remedies

Plaintiff’s Fair Employment and Housing Act claims fail

because plaintiff did not obtain a right-to-sue letter from

the Department of Fair Employment and Housing as required by

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2 At oral argument plaintiff’s counsel stated his

belief that a plaintiff has 300 days to file a complaint with

the EEOC, which is correct but only if proceedings are

initiated at the state level in a deferral jurisdiction such as

California. Laquaglia v. Rio Hotel & Casino, Inc., 186 F.3d

1172, 1174 (9th cir. 1999). Here, the relevant charge was

filed with the EEOC, not the California Department of Fair

Employment and Housing.

2

the FEHA. Martin v. Lockheed Missiles & Space Co., 29

Cal.App.4th 1718, 1725 (1994). Summary judgment is

appropriate where a plaintiff fails to exhaust administrative

remedies. Miller v. United Airlines, Inc., 174 Cal.App.3d 878

890 (1985). Though plaintiff received a right-to-sue letter

from the EEOC, “[a] right to sue letter from the EEOC does not

satisfy the exhaustion requirement with respect to claims

under the FEHA.” Chambers v. City of Berkeley, 2002 WL

433606, *4 (N.D.Cal. 2002). Defendant’s motion for summary

judgment on plaintiff’s FEHA claims is therefore GRANTED.

In its moving papers, defendant argued that most of

plaintiff’s claims under Title VII fail because plaintiff did

not exhaust her administrative remedies. “A person seeking

relief under Title VII must first file a charge with the EEOC

within 180 days of the alleged unlawful employment

practice[.]” Surrell v. California Water Service Co., 518

F.3d 1097, 1104 (9th Cir. 2008).2 After filing the charge, a

plaintiff may sue only if the EEOC issues a right-to-sue

letter. Id. at 1105. In the absence of any “equitable

consideration to the contrary,” failure to attain a right-tosue letter renders a suit properly subject to dismissal. 

Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 626

(9th Cir. 1988). Defendant argued that plaintiff had not

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articulated any equitable considerations to excuse her failure

to exhaust her administrative remedies. Therefore, the only

actionable employment decisions are those that fall within the

scope of the April 3, 2007 EEOC charge, for which plaintiff

was issued a right-to-sue letter.

At oral argument, plaintiff claimed that the scope of her

EEOC complaint and subsequent right-to-sue letter were broader

than defendant claimed. See Sosa v. Hiraoka, 920 F.2d 1451,

1456-1458 (9th Cir. 1990). Because this is a question of law,

the Court read Sosa, which provides some support for

plaintiff’s position. Sosa requires that EEOC charges be

construed liberally and defines the scope of the EEOC

complaint to include all charges which would have been

encompassed by any EEOC investigation, including adverse

employment actions that occur after filing a charge. Id. at

1456-57. Defendant inexplicably did not cite Sosa in its

papers and has not had any opportunity to respond to it. In

view of the disposition of the other arguments, time remains

to consider the appropriate scope of plaintiff’s Title VII

claims. Defendant shall file a supplemental brief of up to

five pages on this issue by January 19, 2010, specifically

identifying which, if any, of plaintiff’s post EEOC complaint

claims are encompassed by her complaint dated February 14,

2007. If a reply is necessary, the Court will request one. 

In the interim this portion of the motion for summary judgment

is taken under submission.

Title VII Claims

The hiring of Abby Young as Principal Governmental

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Planner occurred within 180 days of the EEOC complaint on

February 14, 2007. Plaintiff contends that defendant

discriminated against her on account of her race in selecting

Abby Young. At oral argument, plaintiff also claimed that

defendant chose Young in retaliation for an internal

discrimination complaint that plaintiff lodged following the

hiring of David Wiley, a white male, in June of 2006. 

In order to establish a prima facie case of race

discrimination under Title VII, plaintiff must present

evidence "that gives rise to an inference of unlawful

discrimination." Sischo-Nownejad v. Merced Community College,

934 F.2d 1104, 1009 (9th Cir. 1991)(citations omitted). 

Plaintiff may use direct or circumstantial evidence of

discrimination. See id. at 1110. The amount of evidence

plaintiff must produce for the prima facie case is "very

little." Id. at 1111. Plaintiffs commonly follow the model

for presenting circumstantial evidence first established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Using

the McDonnell Douglas model, plaintiff would have to present

evidence that: 1) she is a member of a protected class, 2) she

was qualified for the position, 3) she was subject to an

adverse employment action, and 4) similarly situated persons

not in her protected class were treated more favorably. See

Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th

Cir. 2002). If plaintiff succeeds in producing evidence

sufficient to raise an inference of discrimination, the burden

of production shifts to the defendant to articulate a

legitimate, nondiscriminatory reason for the employment

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3 The February 14, 2007 Memorandum is the hiring

recommendation. Young apparently turned the job down unless

she was offered more money. The March 1 Memorandum, which adds

little to the earlier one, justifies a pay increase. 

Plaintiff’s objection to these hiring Memoranda, on the grounds

that they are not records of regularly conducted activity under

F.R.C. 803(6), is OVERRULED. However, given the nature of

these documents and the fact that they are produced in a vacuum

and without any context, doubts as to their trustworthiness are

sufficient so that the court gave them little weight; not

enough weight to carry defendant’s burden of production.

Plaintiff’s same objection to other documents sponsored by

Christine Holmes is OVERRULED for similar reasons. The

objection that those documents were not properly authenticated

is DENIED.

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decision. See id. Once the defendant rebuts the inference of

discrimination, the plaintiff must show that the articulated

reason for the employment action is a pretext for

discrimination. See id.

Here, plaintiff satisfied her initial burden under

McDonnell Douglas. Plaintiff is a member of a protected

class; she is African-American. At oral argument, defendant

conceded that plaintiff was qualified for the position. 

Finally, plaintiff did not get the job for which she applied. 

Abby Young, a white woman and similarly situated person, got

the job. The burden then shifted to defendant to articulate a

legitimate, nondiscriminatory reason for hiring Young instead

of plaintiff.

Defendant failed to carry its burden in the second stage

of the McDonnell Douglas analysis. The only material evidence 

defendant submitted is two memoranda from Vintze to Broadbent

recommending that Young be hired.3

 These documents simply

reflect Vintze’s conclusion that Young was the best choice for

the job. They do not explain why she was chosen over Gordon. 

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4 For example, the hiring memoranda cite Young’s public

speaking experience, but there is no evidence that such

experience was a job requirement.

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The attributes of Young discussed in those memoranda do not

appear to be significantly different than those of Gordon. 

More importantly, it is difficult to know how those attributes

relate to the qualifications for the job, since defendant did

not submit the position announcement which, according to its

hiring procedures, lists the qualifications for the position.4

Holmes Dec. ¶ 6, Ex. 1, 2. Nor did defendant provide Young’s

application or any of the other documents which the hiring

procedures require. Significantly absent is any declaration

or other testimony from Vintze explaining why Young was chosen

over Gordon.

Defendant’s claim that it has met its burden under stage

two of McDonnell-Douglas is not supported by the cases on

which it relies. For example, in Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133 (2000), the Court relied on a

fully developed record following testimony at trial from

multiple witnesses, who provided several legitimate,

nondiscriminatory reasons for the adverse employment decision. 

Id. at 143-44. I therefore find that defendant failed to

articulate a legitimate, nondiscriminatory reason for hiring

Abby Young, and defendant’s motion as to Title VII 

discrimination is DENIED.

To establish a prima facie case of retaliation under

Title VII, plaintiff must show “(1) she engaged in a protected

activity, (2) she suffered an adverse employment action, and

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(3) there was a causal link between her activity and the

employment decision.” Stegall v. Citadel Broad. Co., 350 F.3d

1061, 1065-66 (9th Cir. 2004) (internal citations omitted). 

Plaintiff engaged in protected activity in her August 9, 2006

letter protesting being passed over for the Supervising

Environmental Planner position. She suffered an adverse

employment action when she was again passed over for promotion

when defendant hired Abby Young. 

While the briefing on causation is virtually nonexistent, the Court has examined the record and has found two

pieces of circumstantial evidence regarding causation. One is

temporal. Plaintiff was passed over on the next job for which

she applied, about 6 months after her complaint. See Stegall,

supra at 1069; Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th 

Cir. 1987). There is also some evidence that blacks were

underrepresented in defendant’s workforce. Although the

overall level of circumstantial evidence does not appear

strong, given the fact that the employment discrimination case

with respect to the hiring of Young has survived summary

judgment, it seems appropriate to allow the retaliation claim,

which turns largely on the same evidence, to also go to trial.

Section 1981 Claims

The defendant also moved for summary judgment on the

grounds that plaintiff failed to plead and prove her Section

1981 claims. As a preliminary matter, defendant argued that

plaintiff had failed to allege treatment pursuant to an

“official policy or custom” of defendant. There was no

further argument or citation to authority on this issue. At

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the summary judgment stage, the question is whether there is

evidence in the record that plaintiff’s treatment was pursuant

to official policy of defendant. The undisputed facts

disclose that each of the hiring decisions were made by

defendant’s management, including its Executive Officer, Jack

Broadbent. However, Jett v. Dallas Independent School

District, 491 U.S. 701, 737 (1989) and Lytle v. Carl, 382 F.3d

978, 982 (9th Cir. 2004), teach that whether a person is the

final policymaker for purposes of making employment decisions

is a question of state law which must be resolved by the trial

judge before the case is submitted to the jury. Moreover, a

person may have a title such as superintendent of schools and

not necessarily be the final policymaker. See Jett at p. 737. 

Accordingly, the Court gave both parties an opportunity to

submit further evidence and briefing on this issue. 

The defendant’s Board of Directors is its governing body.

Cal. Health & Safety C. §40220. Broadbent is the District’s

Executive Officer and its Air Pollution Control Officer

(APCO). He is authorized to appoint District personnel and to

develop and implement policy for the District. Section 40751;

Racine Decl. Exh. 1. Significantly, the written record of

each decision of which plaintiff complains consists of a

hiring recommendation to Broadbent. There is no dispute that

Broadbent acted on it and there is evidence that defendant’s

practice was for Broadbent to give final approval of hiring

decisions. Whether Broadbent made the decisions, as plaintiff

contends, or merely ratified them, as defendant contends, is a

question to be resolved at trial. Based on the record before

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5 Gillette v. Delmore, 979 F.2d 1342, (9th Cir. 1992),

on which defendant relies, is readily distinguishable. Unlike

Fire Chief Hall, Broadbent is the final policymaker for hiring

decisions. And unlike the City Manager, the final policymaker

in Gillette who was charged with being aware that Gillette had

been disciplined and not having countermanded it, here

Broadbent affirmatively approved the hiring decisions.

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me, I find that Mr. Broadbent is the final policymaker on such

matters and there is sufficient evidence of his involvement in

the hiring decisions of which plaintiff complains for her

Section 1981 claims to go to the jury.5 

This brings me to the question of whether the defendant

is entitled to summary judgment that it did not violate

Section 1981 by discriminating and retaliating against

plaintiff. In the 9th Circuit, the burdens of production and

persuasion on summary judgment on Section 1981 claims are the

same as those for Title VII claims. For the reasons that

defendant is not entitled to summary judgment on plaintiff’s

Title VII claim involving Ms. Young, it is not entitled to

summary judgment on the Section 1981 claims. Moreover,

defendant has employed the same methodology in meeting its

burden of production at stage two of the McDonnell Douglas

analysis with respect to all of the other claims asserted by

plaintiff. For the reasons the District has failed to meet

its burden with respect to Young, it has failed to meet its

burden with respect to the other hiring decisions.

For the stated reasons, defendant’s motion for summary

judgment as to plaintiff’s FEHA claims is GRANTED. 

Defendant’s motion for summary judgment on plaintiff’s 1981

claims is DENIED. Defendant’s motion for summary judgment on

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plaintiff’s Title VII claims for race discrimination and

retaliation in selecting Young for Principal Governmental

Planner is DENIED. The motion for summary judgment on the

remaining Title VII claims is taken UNDER SUBMISSION.

Dated: January 12, 2010

 Bernard Zimmerman 

 United States Magistrate Judge

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