Judge Daniel M. Crowley, Case Number: 19STCV08311, Date: 2023-08-15 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff via the Department's email: SMCdept71@lacourt.org before the set hearing time. See, e.g., CRC Rule 324(b). All parties are otherwise encouraged to appear by LACourtConnect for all matters.

Plaintiff Joyce Allen’s motion for summary adjudication of Defendant Staples Contract & Commercial, LLC’s 38th affirmative defense is denied.

Plaintiff Joyce Allen’s (“Allen”) (“Plaintiff”) moves for summary adjudication of Defendant Staples Contract & Commercial, LLC’s, (“Staples LLC”) (“Defendant”) 38th affirmative defense, Equal Pay, to her complaint for damages (“Complaint”) on the basis there is no genuine issue as to any material fact, and Plaintiff is entitled to judgment in her favor as to the affirmative defense as a matter of law. (Notice of Motion, pg. 2; C.C.P. §437c(f).)

On March 11, 2019, Plaintiff filed a Complaint against Defendant Staples LLC, asserting various causes of action including violation of Equal Pay Act, Sexual Harassment, Gender Discrimination, Failure to Prevent, FEHA Retaliation, and Wrongful Termination. Defendant filed its answer on May 23, 2019, asserting forty affirmative defenses.

On September 20, 2022, the Court of Appeal reversed the trial court’s summary judgment order as to Plaintiff’s cause of action against Defendant Staples LLC for Equal Pay Violation and remanded the matter to this Court.

Plaintiff filed the instant motion on July 14, 2023. Defendant filed its opposition on October 3, 2023. Plaintiff filed her reply on October 12, 2023.

Under C.C.P. §437c, a party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no merit to an affirmative defense to the cause of action, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code [punitive damages], or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. (C.C.P. §437c(f)(1).) A grant of summary adjudication can only be made if it completely disposes of a cause of action, affirmative defense, a claim for damages, or an issue of duty. (C.C.P. §437c(f)(1).)

A cause of action for violation of CEPA requires a plaintiff to prove the following elements: (1) plaintiff was paid less than the rate paid to (a) person(s) of the opposite sex working for defendant; (2) plaintiff was performing substantially similar work as the other person(s), considering the overall combination of skill, effort, and responsibility required; and (3) plaintiff was working under similar working conditions as the other person(s). (CACI 2740.)

“To prove a prima facie case of wage discrimination, ‘a plaintiff must establish that, based on gender, the employer pays different wages to employees doing substantially similar work under substantially similar conditions. [Footnote omitted.]’ ‘If that prima facie showing is made, the burden shifts to the employer to prove the disparity is permitted by one of the [CEPA]’s [four] statutory exceptions—[such as,] that the disparity is based on a factor other than sex.’ But a plaintiff must show ‘not only that she [was] paid lower wages than a male comparator for equal work, but that she has selected the proper comparator.’ ‘The [CEPA] does not prohibit variations in wages; it prohibits discriminatory variations in wages. . . . [Accordingly,] “a comparison to a specifically chosen employee should be scrutinized closely to determine its usefulness.”’” (Allen v. Staples, Inc. (2022) 84 Cal.App.5th 188, 194, internal citations omitted; CACI 2740.)

As a separate and affirmative defense to the sixth cause of action set forth in the Complaint, Defendants is informed and believes that a reasonable opportunity for investigation and discovery will reveal that, in the event Plaintiff proves that she was paid wage rates less than the rates paid to men for equal work for jobs the performance of which required equal skill, effort, and responsibility, and which were performed under similar working conditions, Plaintiff’s claims are barred because such payments were made pursuant to a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or a differential based on any bona fide factor other than Plaintiff’s sex.

Plaintiff argues Defendant’s 38th affirmative defense fails as a matter of law because Defendant admitted it has no evidence to justify the use of a prior salary in setting Plaintiff’s coworker, Jeffrey Narlock’s (“Narlock”), wage as a Field Sales Director (“FSD”).

Plaintiff submitted evidence that Defendant admitted it has no evidence to justify the use of a prior salary in setting Narlock’s wage as an FSD. Specifically, Plaintiff submitted evidence that Defendant’s PMK could only speculate and could not specify how Narlock’s prior salary history factored into Defendant setting Narlock’s base salary at $141,855.51, or how much of the wage disparity between Plaintiff and Narlock resulted from relying on prior salary history or the other purported factors which Defendant contends generally determined annual base salary rates. (Plaintiff’s Disputed Separate Statement of Fact [“P-DSSF”] 13-14; Decl. of McNally, Exh. 5 at 22:18-24:9, 51:24-52:5, 67:24-68:16, 76:8-16.) Plaintiff’s citations to Defendant’s PMK’s deposition testimony is incomplete, and therefore Plaintiff does not meet her burden to demonstrate there is no triable issue of material fact as to whether Defendant can justify the use of a prior salary in setting Narlock’s wage as an FSD.

Assuming, arguendo, Plaintiff met her burden, Defendant sufficiently met its burden “to show that a triable issue of one or more material facts exists as to the defense thereto.” (Aguilar, 25 Cal.4th at pg. 849.) Specifically, Defendant submitted evidence that Narlock’s prior salary history was “one of the reasons” for why he was making more than Plaintiff, not the only reason as purported by Plaintiff. (Defendant’s Additional Material Fact [“D-AMF”] 130; D-COE, Exh. E at Vol. II 283:13-21.) Defendant submitted evidence that its PMK explained that Plaintiff became an FSD because the Area Sales Manager (“ASM”) position was eliminated and “[n]one of the people that were moved from area sales manager to field sales directors at that time when the area sales manager position was eliminated were given an increase in base salary.” (D-AMF 131; D-COE, Exh. E at Vol. II 272:19-25.) Defendant submitted evidence that its PMK testified that Narlock’s experience and background and how long he had been in the position before Plaintiff were also factors in the base salary differential between Plaintiff and Narlock when she became an FSD:

Q: Please explain for me everything you understand on behalf of Staples that explains the base salary difference between Ms. Allen and Mr. Narlock at the point Ms. Allen became a field sales director.

A: Mr. Narlock’s experience and background when he was first put in the position. So his starting range, based on those factors, and then how long he had been in the position before Ms. Allen moved to the field sales director position.

(D-AMF ¶132; D-COE, Exh. E at Vol. II 278:10-22.). Defendant submitted evidence that Narlock’s experience in the industry, which Plaintiff did not have, caused him to have a higher base salary when he was first promoted to an FSD:

I’m certain he [Narlock] was brought in at a higher base to begin with because of his experience in the industry, which was Ms. Allen did not have any experience in the industry when she was brought on.

The years of being in the position means that when merit increases were given, he was starting at a higher position. So each year would he get an increase if there as a merit increase given those years.

And depending on his years in those positions, that added onto his total base before Ms. Allen moved to that position.

(D-AMF ¶133; D-COE, Exh. E at Vol. II 280:16-281:2.) Defendant submitted evidence that there were multiple bona fide reasons why Narlock’s base pay as an FSD was higher than Allen’s base pay in the same position, none of which involved gender. (D-AMF ¶134; D-COE, Exh. E at Vol. II 272:19-25 278:10-22, 280:16-281:2, 282:14-283:1.) Accordingly, Defendant met its burden to demonstrate a triable issue of fact exists as to its 38th affirmative defense of Equal Pay.

Plaintiff’s motion for summary adjudication of Defendant’s 38th affirmative defense, Equal Pay, is denied.

Hon. Daniel M. Crowley

Judge of the Superior Court