Goins v. United Parcel Service Inc

• Court: District Court, N.D. California
• Decided: July 8, 2024
• Docket: 4:21-cv-08722
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA

7 GALENA GOINS, et al., Case No. 21-cv-08722-PJH 8 Plaintiffs,

9 v. ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 10 UNITED PARCEL SERVICE INC, Re: Dkt. No. 66 11 Defendant. 12

13 14 Defendant United Parcel Service, Inc.’s (“UPS”) motion for summary judgment and 15 plaintiffs’ Rule 56(d) motion came on for hearing before this court on May 23, 2024. 16 Plaintiffs appeared through their counsel, Tiega Varlack. Defendant appeared through its 17 counsel, Elizabeth Brown. Having read the papers filed by the parties and carefully 18 considered their arguments and the relevant legal authority, and good cause appearing, 19 the court hereby GRANTS UPS’s motion for summary judgment and DENIES plaintiffs’ 20 Rule 56(d) motion, for the following reasons. 21 BACKGROUND 22 A. Factual Background 23 Plaintiffs are three female employees of defendant United Parcel Service, Inc., a 24 global transportation and logistics company. Plaintiffs work in UPS’s Oakland Hub, 25 where employees unload, sort, and load packages of various sizes. Employees are 26 assigned to work in designated areas of the facilities. One such area is the “Small Sort,” 27 where smaller packages and envelopes are sorted and aggregated into bags according 1 Decl.”) ¶¶ 3, 15 & 20. Plaintiffs and two other employees with more seniority (Steven 2 Smith and Jeff Mandigal) are the only part-time employees on the night shift in the Small 3 Sort in the Oakland Hub. Id. ¶ 11; Jones-Jackson Dep. at 299:8–22 (“there’s no men in 4 Small Sort that are part-time with lower seniority”).1 5 The terms and conditions of plaintiffs’ employment are governed by a collective 6 bargaining agreement (the “CBA”) between UPS and the Union. Moreno Decl. ¶ 9; 7 Declaration of Anthony White, Dkt. 66-4 (“White Decl.”) ¶ 3; Goins Dep. at 80:9–132; 8 Jones-Jackson Dep. at 23:5–16; Lopez Dep. at 44:20–233. Union employees with the 9 requisite seniority are eligible to work in the Small Sort. Any extra work is offered to part- 10 time employees in order of seniority under the CBA. Moreno Decl. ¶ 18. 11 Positions in the Small Sort are physically demanding, and all employees in the 12 Small Sort must meet certain physical requirements. Lopez Dep. at 52:11–19; Goins 13 Dep. at 64:6–15 & 65:23–67:3; Jones-Jackson Dep. at 80:8–14; Moreno Decl. ¶ 3. 14 Specifically, Small Sort employees must be able to lift up to 70 pounds, constantly lift up 15 to 10 pounds, and occasionally lift and carry 10 to 50 pounds. Moreno Decl. ¶ 3; Second 16 Amended Complaint, Dkt. 38 (“SAC”) ¶ 340 (describing physical requirements). These 17 requirements are set forth in a UPS document applicable to roles in the Small Sort. 18 Declaration of Jennifer Svanfeldt, Dkt. 66-1 (“Svanfeldt Decl.”), Ex. 12. 19 The primary function of supervisors in the Small Sort is to ensure the safety of 20 employees and the packages they handle, primarily by conducting observations and 21 training employees on safety methods and meeting production standards. Moreno Decl. 22 23 1 Excerpts from the Jones-Jackson deposition are found at Svanfeldt Decl., Dkt. 66-1, 24 Ex. 3 and Varlack Decl., Dkt. 72, Ex. 8. However, the version attached to the Varlack Declaration is watermarked “READ AND SIGN ONLY”. 25 2 Excerpts from the Goins deposition are found at Svanfeldt Decl., Dkt. 66-1, Ex. 1 and 26 Varlack Decl., Dkt. 72, Ex. 9. 27 3 Excerpts from the Lopez deposition are found at Svanfeldt Decl., Dkt. 66-1, Ex. 2 and 1 ¶ 5. There are a few mechanisms for supervisor observations: 2 • On the Job Observations (“OJS”): UPS has the expectation that supervisors 3 will conduct an OJS of each employee once every month. 4 • Two Minute Drill: UPS requires supervisors to conduct one two-minute drill 5 on every employee each hour, e.g., three two-minute drills on each part- 6 time employee per 3.5-hour shift. 7 • Safe Work Method (“SWM”): UPS requires supervisors to conduct at least 8 one SWM annually on each employee. 9 • Observation: UPS requires supervisors to perform two observations per 10 night on any two employees. Each employee must receive one observation 11 each week. 12 Id. ¶ 23. 13 In 2018, UPS converted the Oakland Hub to an automated package facility as part 14 of a company-wide effort to convert package sorting from a manual to an automated 15 process. Id. ¶ 15. After the conversion, the number of manual sorting Small Sort 16 positions shrunk from about ten to one—the NGSS manual sort position—on each night 17 shift. Id.; Goins Dep. at 62:1–15. This one manual sorter position is faster-paced and 18 requires constant movement and alertness because the sorter is responsible for 19 removing non-UPS packages from a moving belt and putting them into the bin designated 20 for the carrier (e.g., FedEx, Amazon, USPS, etc.). Moreno Decl. ¶ 19; see Goins Dep. at 21 66:16–67:8, 221:12–223:3 & 224:3–11. Since September 2020, Oakland Small Sort 22 management has rotated the NGSS job among multiple employees, including Walter 23 Gaytan (male), Tony Edwards (male), Vernell Jordan (male), Ricky Dominguez (male), 24 Margaret Freeney (female), Gerri Earle (female), Antoinette Madison (female), Terry 25 Jones-Jackson (female), and Galena Goins (female). Moreno Decl. ¶ 29. 26 The Small Sort is now primarily responsible for bagging functions. Most 27 employees (formerly manual sorters) monitor the automated sorting by ensuring that 1 the chute. Id. ¶ 15. These employees then zip the bag, print a tag that reflects the 2 destination for which the packages in the bag are bound, fasten the tag to the bag 3 (making sure the destination on the tag and bag match) and then drag the bag onto an 4 outbound belt located on the floor behind them. Id.; Goins Dep. at 53:1–10 & 197:13– 5 201:18. UPS and the Union refer to the employees who are responsible for the outbound 6 bags as “baggers.” Moreno Decl. ¶ 15. UPS and the Union refer to employees who are 7 responsible for unloading inbound bags as “debaggers.” Id.; Goins Dep. at 186:10–12. 8 Supervisors rotate employees among the following positions each shift: (1) tender 9 (approximately four employees); (2) debagger (approximately four employees); 10 (3) bagger (approximately eight to twelve employees); and (4) NGSS manual sort 11 (typically one employee). Moreno Decl. ¶ 19; Jones-Jackson Dep. at 70:20–22, 71:2–8, 12 72:13–25 & 234:2–16; Lopez Dep. at 51:6–17; Goins Dep. at 43:20–44:25. 13 1. Goins 14 In August 1999, UPS hired Goins as a part-time loader in the Oakland Hub. Goins 15 Dep. at 31:23–32:6. In 2018, Goins was awarded a bid assignment to the Small Sort 16 based on her seniority. She initially worked as a debagger and bagger. Id. at 36:20– 17 37:5, 143:12–144:4 & 186:6–9. In March 2019, Goins was rotating into the NGSS 18 manual sort position. Moreno Decl. ¶ 25. However, supervisor Ricardo Moreno 19 observed she was not following proper safety methods. Id. Following attempts to train 20 her, UPS determined that Goins could not perform the NGSS manual sort job regularly 21 until she demonstrated compliance with safety methods. Id. ¶¶ 25–28. Thereafter, Goins 22 has bagged and debagged. Goins Dep. at 184:6–10, 195:24–25 & 197:7–9. 23 Sometime in the summer of 2020, Goins resumed rotating in to the NGSS manual 24 sort position. Moreno Decl. ¶ 27. In September 2020, UPS management and the Union 25 did an observation to ascertain whether Goins could safely perform the NGSS manual 26 sort role in accordance with performance standards. Id. On September 15 or 16, 2020, 27 supervisor Marcus Penn conducted an OJS of Goins in that position. Id.; Goins Dep. at 1 required methods and received an overall rating of 38 percent; she refused to sign the 2 OJS. Moreno Decl. ¶ 28; Goins Dep. at 154:13–19. Goins was no longer rotated into the 3 NGSS manual sort job regularly and testified at deposition that Moreno told her the 4 reason: “[Moreno] said that I didn’t know what I was doing, that I didn’t know how to 5 sort. . . . That’s the reason why he said he moved me”. Goins Dep. at 147:5–25. 6 In October 2020, Goins complained about being rotated out of the NGSS manual 7 sort job and informed management that she had a knee injury and that she could not do 8 the bagger position. Moreno Decl. ¶¶ 29–30; Declaration of Angel Dunn, Dkt. 66-2 9 (“Dunn Decl.”) ¶ 10. This was the first time that Moreno learned of Goins’s knee injury. 10 Moreno Decl. ¶ 30. In response, Moreno assigned her to temporary alternate work under 11 the Temporary Alternate Work Program (“TAW”) in Rewrap, an area where broken 12 packages are routed for repackaging. Id.; Goins Dep at 121:17–20. Because Goins did 13 not have the required full-time status, seniority, or certification for Rewrap, her 14 responsibilities were limited to sitting on a stool and applying tape to damaged packages. 15 Moreno Decl. ¶ 30; Goins Dep. at 137:25–138:12 & 284:4–285:4. 16 Concurrently, UPS opened a job accommodation on Goins’s behalf and started 17 the formal ADA process with Goins. Dunn Decl. ¶ 11. UPS asked that Goins return an 18 ADA form within two weeks and that UPS would consider her request for accommodation 19 withdrawn if she did not return the forms within four weeks (e.g., by November 25, 2020). 20 Id. Goins did not return the form by that deadline. Id. 21 On June 29, 2021, Goins returned to work with no restrictions. Id. ¶ 24; Goins 22 Dep. at 281:4–282:7. Goins testified at deposition that she does not recall the jobs she 23 has performed since returning to work. Goins Dep. at 282:9–17. In August 2021, UPS 24 received documentation of new work restrictions from Goins’s physician; in response, 25 UPS assigned Goins to alternate work under the TAW. Moreno Decl. ¶ 31. 26 In August 2023, Goins presented new temporary work restrictions which UPS 27 accommodated with TAW. Id. ¶ 32; see Goins Dep. at 288:8–14. Goins was released to 1 In February 2024, UPS received another set of work restrictions from Goins regarding a 2 left and right shoulder strain that limited her to lifting, pushing and pulling no more than 3 five pounds on an occasional basis. Id. ¶ 33; see Goins Dep. at 288:25–289:8. Because 4 Goins had exhausted her eligibility for TAW, UPS has been accommodating Goins with 5 workers’ compensation paid time off ever since. Moreno Decl. ¶ 33; Goins Dep. at 6 196:1–24 (on paid leave since January 24, 2024). Goins testified at deposition that she 7 cannot estimate when she will be able to return to work. Goins Dep. at 290:3–291:13. 8 2. Lopez 9 On or around January 3, 2000, UPS hired Lopez as a part-time loader. Lopez 10 Dep. at 34:14–19 & 35:19–21. In 2017, while she was working at the Oakland hub, UPS 11 accommodated Lopez with a leave of absence to accommodate her shoulder injury and 12 surgery for approximately eight months. Id. at 38:21–39:6 & 115:10–15. 13 In April 2018, Lopez returned to work with no restrictions as a part-time employee 14 in the Oakland Hub. Id. at 115:16–18 & 124:2–125:9. She was assigned to Small Sort 15 on the night shift based on her seniority. Lopez rotated into the bagger position and 16 testified at deposition that she fills 12 to 15 bags per shift. Id. at 45:21–24. 17 On or about August 15, 2023, Lopez submitted work restrictions to UPS. Id. at 18 8:5–8 & 61:2–6. Between August 16 and October 13, 2023, UPS accommodated Lopez 19 by putting her on light duty, where she performed office work on a computer. Id. at 20 56:24–57:21 & 62:5–14. On October 13, 2023, Lopez started an indefinite workers 21 compensation paid leave of absence. She does not have an anticipated return to work 22 date. Id. at 39:19–40:5. 23 3. Jones-Jackson 24 On January 5, 1999, UPS hired Terry Jones-Jackson as a loader/unloader at the 25 Oakland Airport. Jones-Jackson Dep. at 58:25–59:10. Currently, Jones-Jackson 26 typically rotates into the bagger position with multiple other employees, including Sam, 27 Mario, Sean, Sonia, Galena, Margaret, Gerri, and Vernell. Id. at 77:15–78:17, 236:8–19. 1 every day through January 2024, when she returned from a two-week vacation. Id. at 2 227:16–229:12. At times, Jones-Jackson would work all three shifts in a given night. Id. 3 at 227: 21–24. As of the date of her deposition in March 2024, Jones-Jackson was being 4 accommodated with TAW and was unable to estimate when her doctor would modify her 5 work restrictions. Id. at 297:8–298:16. 6 When the Union and UPS agreed in July 2019 to create additional full-time jobs in 7 the Oakland hub, those jobs were awarded to UPS employees who bid on them in order 8 of seniority. Moreno Decl. ¶ 36; Jones-Jackson Dep. at 303:3–9. Of the eight employees 9 who successfully bid on the new jobs, two were women. Moreno Decl. ¶ 36; Jones- 10 Jackson Dep. at 41:1–42:7, 45:18–46:11 & 155:18–22. The available positions were 11 awarded to part-time employees with more seniority. Jones-Jackson Dep. at 155:5-17. 12 B. Procedural History 13 This case was initiated by complaint in this court in November 2021. Dkt. 1. 14 Following a stay requested by the parties and before defendants filed a responsive 15 pleading, plaintiffs filed their first amended complaint (“FAC”). Dkt. 26. Defendant moved 16 to dismiss the FAC. Dkt. 27. The court held a hearing before granting the motion, 17 discussing the deficiencies in the FAC and clarifying the necessary elements plaintiffs 18 must include in a subsequent pleading to survive a motion to dismiss. Dkt. 33; Dkt. 35; 19 see also Dkt. 40 (hearing transcript). Plaintiffs timely filed the SAC. Dkt. 38. Defendant 20 filed a motion to dismiss that the second amended complaint. Dkt. 41. 21 Plaintiffs advanced the following causes of action in the SAC: 22 (1) violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et 23 seq., for disparate treatment “on the basis of [plaintiffs’] gender, including 24 age and disability” (SAC ¶¶ 285–314); 25 (2) violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et 26 seq., for gender discrimination (SAC ¶¶ 315–27) (since dismissed) 27 (3) violation of California Fair Employment and Housing Act, (“FEHA”), Cal. 1 (4) violation of the Equal Pay Act of 1963 (“EPA”), 29 U.S.C. § 216(b), denial of 2 equal pay for equal work (SAC ¶¶ 338–67); 3 (5) violation of the California Equal Pay Act (“CEPA”), Cal. Lab. Code § 1197.5, 4 denial of equal pay for equal and substantially similar work (SAC ¶¶ 368– 5 76); and 6 (6) violation of California Business & Professions Code § 17200 et seq. 7 (“UCL”), for unfair competition (SAC ¶¶ 377–81). 8 On April 20, 2023, the court issued an order on defendant’s motion to dismiss 9 plaintiffs’ second amended complaint. Order Re Defendant’s Motion to Dismiss and/or 10 Strike Second Amended Complaint, Dkt. 47 (“MTD Order”). That order narrowed the 11 case. First, it struck all class allegations and certain named plaintiffs, leaving only three 12 named plaintiffs in the action: Goins, Jones-Jackson, and Lopez. Second, it found that a 13 number of allegations were not administratively exhausted and therefore could not be the 14 basis for any claim in this action. 15 Following the court’s order on defendant’s motion to dismiss the second amended 16 complaint, the following claims and allegations survive: 17 18 19 20 21 22 23 24 25 26 27 1 Claim Plaintiff & Exhausted Allegation 2 1) Title VII, disparate • Goins alleges she was forced to stand for long hours 3 treatment on the basis and assigned to heavy duty areas despite 4 of gender and age management’s knowledge of her history of knee injury 5 based on gender. 6 • Lopez alleges she was (1) denied reasonable 7 3) FEHA, for gender accommodations for shoulder injuries and (2) received 8 discrimination more difficult work assignments based on gender. 9 • Jones-Jackson alleges she was denied (1) backpay 10 to cover the period of a gender-based pay discrepancy 11 and (2) the opportunity to work overtime based on 12 gender. She also alleges (3) she was treated worse 13 than younger women based on age. 14 2) Title VII, disparate None. 15 impact 16 4) EPA, denial of equal • Jones-Jackson alleges she was denied backpay to 17 pay for equal work cover the period of a gender-based pay discrepancy. 18 5) CEPA, denial of 19 equal pay 20 6) UCL • Goins 21 • Lopez 22 • Jones-Jackson 23 Derivative of the above claims. 24 UPS has now filed a motion for summary judgment for the remaining claims, or in 25 the alternative for partial summary judgment. Dkt. 66 (“Mot.”). Plaintiffs have opposed 26 the motion, and in their opposition moved the court to stay the motion and order 27 additional discovery pursuant to Federal Rule of Civil Procedure 56(d) (“Rule 56(d)”). 1 opposing the Rule 56(d) motion, replying to the opposition, and stating its own evidentiary 2 objections. Dkt. 73 (“Reply”). Plaintiffs subsequently filed additional evidentiary 3 objections to evidence UPS submitted on reply. Dkt. 75. 4 DISCUSSION 5 A. Legal Standard 6 Summary judgment is proper where the pleadings, discovery, or affidavits show 7 that there is “no genuine dispute as to any material fact and the movant is entitled to 8 judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those “that might 9 affect the outcome of the suit under the governing law”. Anderson v. Liberty Lobby, Inc., 10 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine “if the evidence is 11 such that a reasonable jury could return a verdict for the nonmoving party.” Id. “A 12 ‘scintilla of evidence,’ or evidence that is ‘merely colorable’ or ‘not significantly probative,’ 13 is not sufficient to present a genuine issue as to a material fact.” United Steelworkers of 14 Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989) (quoting Anderson, 477 15 U.S. at 249–50). 16 Where the moving party will have the burden of proof at trial, it must affirmatively 17 demonstrate that no reasonable trier of fact could find other than for the moving party. 18 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue 19 where the nonmoving party will bear the burden of proof at trial, the moving party may 20 carry its initial burden of production by submitting admissible “evidence negating an 21 essential element of the nonmoving party’s case,” or by showing, “after suitable 22 discovery,” that the “nonmoving party does not have enough evidence of an essential 23 element of its claim or defense to carry its ultimate burden of persuasion at trial.” Nissan 24 Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 & 1106 (9th Cir. 25 2000); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (“the burden on the 26 moving party may be discharged by ‘showing’—that is, pointing out to the district court— 27 that there is an absence of evidence to support the nonmoving party's case”). 1 beyond the pleadings and, by its own affidavits or by the depositions, answers to 2 interrogatories, and admissions on file, come forth with specific facts to show that a 3 genuine issue of material fact exists.” Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 4 1993) (per curiam). But allegedly disputed facts must be material—“the mere existence 5 of some alleged factual dispute between the parties will not defeat an otherwise properly 6 supported motion for summary judgment; the requirement is that there be no genuine 7 issue of material fact.” Anderson, 477 U.S. at 247–48. “When the nonmoving party relies 8 only on its own affidavits to oppose summary judgment, it cannot rely on conclusory 9 allegations unsupported by factual data to create an issue of material fact.” Hansen, 7 10 F.3d at 138. 11 When deciding a summary judgment motion, a court must view the evidence in the 12 light most favorable to the nonmoving party and draw all justifiable inferences in its favor. 13 Anderson, 477 U.S. at 255; Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir. 14 2011). If evidence produced by the moving party conflicts with evidence produced by the 15 nonmoving party, the judge must assume the truth of the evidence set forth by the 16 nonmoving party with respect to that fact. See Tolan v. Cotton, 134 S. Ct. 1861, 1865 17 (2014); Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). However, when a non- 18 moving party fails to produce evidence rebutting defendants’ showing, then an order for 19 summary adjudication is proper. Nissan Fire, 210 F.3d at 1103 (“If the nonmoving party 20 fails to produce enough evidence to create a genuine issue of material fact, the moving 21 party wins the motion for summary judgment.”). 22 B. Analysis 23 Defendant moves for summary judgment with respect to each of plaintiffs’ claims, 24 and with respect to whether they can seek punitive damages. Plaintiffs move this court to 25 deny or continue defendant’s motion pursuant to Federal Rule of Civil Procedure 56(d). 26 The court addresses each argument in turn: (1) plaintiffs’ Rule 56(d) motion; 27 (2) defendant’s motion concerning claims 1 and 3 alleging violations of Title VII and 1 CEPA; (4) defendant’s motion concerning claim 6 alleging a violation of the UCL; and 2 (5) the parties’ evidentiary objections. 3 1. Plaintiffs’ Rule 56(d) Request for Delay & Additional Discovery 4 Plaintiffs ask the court to stay the summary judgment motion pursuant to 5 Rule 56(d) and order additional discovery. Opp. at 9. They argue that they have been 6 diligent in seeking discovery, but they need more time to receive information from the 7 California Division of Labor Standards Enforcement (“DLSE”), a state agency responsible 8 for enforcing California’s labor laws. Jones-Jackson filed a DLSE complaint against UPS 9 on January 16, 2021, alleging wage theft and identifying a male hired one day before her, 10 Steve Smith. The DSLE closed its investigation around March 25, 2024 because the 11 instant litigation was pending. See Declaration of Tiega-Noel Varlack, Dkt. 72 (“Varlack 12 Decl.”), Ex. 1. Counsel for plaintiffs sought access to the records via a public records 13 request, but as of the hearing date no records had been received. At the hearing, 14 plaintiffs’ counsel indicated that the DLSE would soon produce some records. 15 The motion is brought primarily by Jones-Jackson, as she seeks leave to reopen 16 discovery for the limited purpose of issuing a subpoena to DLSE to assist with her EPA 17 and CEPA claims. Counsel argues that she did not have an opportunity to subpoena the 18 records, because the notice of case closure was received shortly before fact discovery 19 closed. Specifically, plaintiffs seek information concerning the alleged steps UPS took to 20 willfully pay Jones-Jackson less than her male comparator, UPS’s communications with 21 the DLSE and other witnesses, payroll records, Employer Policies and Procedures 22 documents, and the calculations of Jones Jackson’s back pay. Varlack Decl. ¶¶ 15–28. 23 UPS argues that plaintiffs had ample opportunity to conduct discovery and failed to 24 do so timely or diligently. UPS argues that plaintiffs present no basis for believing the 25 DLSE investigation file will contain any relevant information, let alone information that is 26 essential for opposing the motion. 27 a. Legal Standard 1 motion to be continued, if the nonmoving party has not had an opportunity to make full 2 discovery.” Celotex, 477 U.S. at 326; see also Qualls v. Blue Cross of Calif., Inc., 22 3 F.3d 839, 844 (9th Cir.1994). Rule 56(d) ensures that adequate discovery can occur 4 before summary judgment is considered, which “thus protects parties from a premature 5 grant of summary judgment.” Weinberg v. Whatcom Cnty., 241 F.3d 746, 751 (9th Cir. 6 2001); see also Metabolife Intern., Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001). 7 A party requesting a Rule 56(d) continuance bears the burden of (1) setting forth in 8 affidavit form the specific facts he hopes to elicit from further discovery, (2) demonstrating 9 that the facts sought exist, and (3) demonstrating that the sought-after facts are essential 10 to oppose summary judgment. Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. 11 Corp., 525 F.3d 822, 827 (9th Cir. 2008); Fed. R. Civ. P. 56(d); see also Tatum v. City & 12 Cnty. of San Francisco, 441 F.3d 1090, 1100 (9th Cir.2006); Chance v. Pac–Tel Teletrac 13 Inc., 242 F.3d 1151, 1161 n.6 (9th Cir.2001). In submitting the Rule 56(d) request, the 14 proponent must provide facts, not conclusions. See Keebler Co. v. Murray Bakery Prod., 15 866 F.2d 1386, 1387-89 (Fed. Cir. 1989) (“If all one had to do to obtain a grant of a Rule 16 56[(d)] motion were to allege possession by movant of ‘certain information’ and ‘other 17 evidence’, every summary judgment decision would have to be delayed while the non- 18 movant goes fishing in the movant’s files.”); see also Moss v. U.S. Secret Serv., 572 F.3d 19 962, 966 n.3 (9th Cir. 2009). The proponent must identify “the specific facts that further 20 discovery would have revealed” and explain “why those facts would have precluded 21 summary judgment.” Singh v. Am. Honda Fin. Corp., 925 F.3d 1053, 1076 (9th Cir. 22 2019) (quoting Tatum v. City & Cty. of S.F., 441 F.3d 1090, 1100 (9th Cir. 2006)). 23 As a fourth requirement, a party seeking a continuance under Rule 56(d) must 24 also show that it diligently pursued the requested discovery. Pfingston v. Ronan Eng’g 25 Co., 284 F.3d 999, 1005 (9th Cir. 2002) (“the failure to conduct discovery diligently is 26 grounds for the denial of a Rule [56(d)] motion.”). Where the party seeking a continuance 27 had ample opportunity to conduct discovery and failed to do so, a Rule 56(d) request for 1 1027 (9th Cir. 2006) (“Attempting to secure discovery after a discovery cutoff date does 2 not cure a party’s failure to conduct diligent discovery beforehand.”); Landmark Dev. 3 Corp. v. Chambers Corp., 752 F.2d 369, 372 (9th Cir.1985) (motion denied where 4 “[f]ailure to take further depositions apparently resulted largely from plaintiffs’ own delay”); 5 Bank of Am. v. Pengwin, 175 F.3d 1109, 1118 (9th Cir.1999) (denial of motion proper 6 unless “the movant diligently pursued its previous discovery opportunities”); Mackey v. 7 Pioneer Nat'l Bank, 867 F.2d 520, 524 (9th Cir. 1989) (“A movant cannot complain if it 8 fails diligently to pursue discovery before summary judgment”); Big Lagoon Rancheria v. 9 California, 789 F.3d 947, 955 (9th Cir. 2015), as amended on denial of reh'g (July 8, 10 2015) (discovery practices not diligent where party waited to serve a subpoena until “very 11 near the end of the discovery period”). 12 b. Analysis 13 The court initially notes that this summary judgment motion is not early, and it 14 does not come before plaintiffs had a chance to conduct full discovery. The complaint 15 was filed on November 9, 2021, and UPS filed its motion after the close of discovery on 16 the last permissible date to move for summary judgment. See Case Management and 17 Pretrial Order, Dkt. 53; Mot. (filed 5 weeks before hearing deadline). In short, this is not 18 the sort of premature motion Rule 56(d) is designed to safeguard against. 19 Considering the factors outlined by the Ninth Circuit, the court first assesses 20 whether plaintiffs have set forth in affidavit form the specific facts they hope to elicit from 21 further discovery. See Fed. R. Civ. P. 56(d) (party must show “by affidavit or 22 declaration”). Plaintiffs’ motion points to the Varlack Declaration, and the specific facts 23 plaintiffs seek are not identified therein. The motion cites in various places to Varlack 24 Decl. ¶¶ 3, 5, 8, 10–17 & 28, and the only information discernable therein is that the 25 DSLE opened an investigation file that plaintiffs want access to, and perhaps that the file 26 contains wage statements that would help plaintiffs calculate damages. Looking at the 27 motion, plaintiffs argue (without citing to the Varlack declaration): which contains the foundational allegations of wage and hour 1 law violations, including pertinent dates and the involved parties, providing a framework for the dispute. The Plaintiff also 2 seeks to obtain any responses submitted to the DLSE, which counter the Plaintiffs’ allegations and may include key 3 documentation and UPS’ interpretation of the events in question. payroll [sic] records are crucial as they offer a detailed 4 account of hours worked, wages, and deductions, enabling a meticulous evaluation of the wage discrepancies alleged. 5 Moreover, employee statements providing firsthand experiences and Employer Policies and Procedures 6 documenting the operational standards of the employer can offer insightful context into the employer’s practices. Witness 7 Statements from other employees (including management) are critical to either corroborate or refute the claims at issue. 8 Investigative Reports generated by DLSE officials are anticipated to provide a narrative and analysis of the evidence 9 collected and any investigative conclusions drawn. 10 Opp. at 15–16. 11 Although plaintiffs present a wish list of investigatory materials they would like to 12 have, the motion (and the accompanying, required declaration) are lacking in specifics. 13 Plaintiffs want the complaint form that contains allegations of “pertinent dates” and the 14 “involved parties.” What dates and parties are essential to oppose summary judgment 15 are left unspecified. Plaintiffs also want the DLSE investigation materials, which plaintiffs 16 argue “may include key documentation and UPS’ interpretation of the events in question.” 17 These are vague hopes that the DSLE might have compiled some facts that plaintiffs 18 failed to adequately investigate during the lengthy discovery period—not a specification 19 of particular facts that plaintiffs seek. Plaintiffs do identify specific, relevant facts and 20 documents in the form of payroll records showing hours worked and associated wages 21 (specified in the motion but not the required declaration), although it is unclear why 22 plaintiffs would require discovery from the DLSE to obtain these facts rather than 23 obtaining them from their own records or from UPS. Finally, plaintiffs seek employee 24 statements, general employer procedure documents, and general DLSE investigative 25 materials. Plaintiff does not even speculate what facts these might contain. 26 As an initial matter, plaintiffs present the above requests almost exclusively in the 27 motion—not the accompanying declaration as required. Moreover, the only specific 1 constitute a wish list of documents that plaintiffs speculate might be generally helpful. 2 With respect to the payroll records, it is not even clear that the DLSE has those 3 documents, but certainly UPS would have them (and plaintiff Jones-Jackson would have 4 many relevant ones herself). If plaintiff has not obtained payroll records in her CEPA and 5 EPA action from the employer during the entire course of the discovery period, this 6 certainly shows a lack of diligence (a factor discussed below). 7 Second, the court assesses whether the facts sought exist. Plaintiffs speculate 8 that the DLSE may have payroll records, although even that is unclear. The other 9 documents plaintiffs seek are a very loosely-specified general category of investigative 10 materials which are defined in such a general fashion that such documents are certain to 11 exist, although plaintiff does not identify exactly what facts she hopes are contained 12 therein. Identifying a general category of “Investigative Reports generated by DLSE 13 officials” does not demonstrate that the facts sought exist. 14 Third, the court considers whether the sought-after materials are essential to 15 opposing summary judgment. The elements of plaintiff’s CEPA and EPA claims are 16 evaluated in substance below, but in short plaintiff must show that she and the identified 17 comparator Mr. Smith were paid different wages for equal work. Following plaintiff’s 18 prima facie case, defendant can raise as an affirmative defense a legitimate reason they 19 were paid differently based on a factor other than sex. Evidence accompanying 20 defendant’s summary judgment motion suggests that the two had different jobs with 21 different skill levels, and accordingly were paid differently. It is hypothetically possible 22 that in the investigatory materials, documents would show that the two jobs were 23 “substantially equal,” thus defeating summary judgment. However, plaintiff does not 24 identify that as a reason she seeks those materials. Instead, she claims to seek those 25 materials only to assist her damages calculation—that is, whether UPS actually issued 26 her appropriate back-pay or whether the “retro wages” payment was payment for 27 something else. But plaintiff has not presented or identified discoverable evidence to 1 so plaintiff’s Rule 56(d) request on the issue of damages does not seek materials that are 2 essential to opposing summary judgment. 3 Fourth, the court considers whether plaintiffs have been diligent in their discovery. 4 The answer must be no. Plaintiffs knew about the DLSE investigation and had years to 5 request information about it. Jones-Jackson believed herself to have been underpaid vis- 6 à-vis a specific man (Steve Smith) since at least 2017 or perhaps 2019. See Opp. 16:19- 7 21. She filed charges and a lawsuit in 2020 and 2021. Yet, when plaintiffs received a 8 letter indicating that the DLSE had closed its case four days before the close of 9 discovery, they did not issue a subpoena for those materials. Although that timeline was 10 short, it was entirely feasible to issue that subpoena, especially given plaintiffs’ advanced 11 knowledge of the investigation and interest in its findings.4 Moreover, plaintiff was well 12 aware that both this litigation and that DLSE investigation had been running concurrently 13 for years. Plaintiff offers no explanation for why she had not issued that subpoena at any 14 point before the close of discovery—regardless of whether the DLSE investigation was 15 closed. Finally, the only specific materials plaintiff seeks (wage statements) were more 16 readily available from party discovery. Relying on a non-party, independent investigatory 17 agency for those records—which may or may not even have them—shows an extreme 18 lack of diligence for materials that are core to plaintiff’s claim. 19 Accordingly, plaintiffs’ Rule 56(d) motion is DENIED. 20 2. Claims 1 & 3: Title VII and FEHA 21 a. Legal Standard 22 “When responding to a summary judgment motion in a discrimination suit under 23 . . . Title VII, the plaintiff may proceed by either using the McDonnell Douglas framework, 24 as established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 (1973), or 25

27 4 On March 29, 2024—after receiving the closure letter from the DLSE but before 1 alternatively, may simply produce direct or circumstantial evidence demonstrating that a 2 discriminatory reason more likely than not motivated the defendant’s contested conduct.” 3 Opara v. Yellen, 57 F.4th 709, 721 (9th Cir. 2023) (internal quotation marks omitted) 4 “A plaintiff must first make out a prima facie case of her discrimination claim. The 5 plaintiff may do so either by using the McDonnell Douglas framework, or alternatively, 6 may simply produce direct or circumstantial evidence demonstrating that a discriminatory 7 reason more likely than not motivated the employer.” Id. at 721–22 (internal quotation 8 marks omitted) (emphasis added). 9 “Establishing a prima facie case of . . . discrimination via the McDonnell Douglas 10 factors generally requires a plaintiff to show: ‘(1) she belongs to a protected class; (2) she 11 was qualified for the position; (3) she was subject to an adverse employment action; and 12 (4) similarly situated individuals outside her protected class were treated more 13 favorably.’” Id. at 722 (quoting Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 14 1123 (9th Cir. 2000)). “Under the McDonnell Douglas framework, ‘the requisite degree of 15 proof necessary to establish a prima facie case on summary judgment is minimal and 16 does not even need to rise to the level of a preponderance of the evidence.’” Id. (quoting 17 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002)). 18 An adverse employment action is one that “materially affect[s] the compensation, 19 terms, conditions, or privileges of the [plaintiff’s] employment.” Chuang, 225 F.3d at 20 1126. “[A]ssigning more, or more burdensome, work responsibilities, is an adverse 21 employment action.” Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008). 22 Although “mere ostracism in the workplace is not enough to show an adverse 23 employment decision”, being “excluded from educational seminars, meetings, and 24 positions . . . . [that] may have put her in a position for merit pay increases” can constitute 25 adverse employment actions, as can being “given a more burdensome work schedule”. 26 Strother v. S. California Permanente Med. Grp., 79 F.3d 859, 869 (9th Cir. 1996). 27 “[A] plaintiff may alternatively offer direct or circumstantial evidence of 1 defined as evidence of conduct or statements by persons involved in the decision-making 2 process that may be viewed as directly reflecting the alleged discriminatory attitude. 3 When a plaintiff seeks to establish a prima facie case through the submission of actual 4 evidence, very little such evidence is necessary.” Opara, 57 F.4th at 722–23 (citations 5 and internal quotation marks omitted). 6 Second, “[w]hether a plaintiff establishes her prima facie claim of disparate 7 treatment using direct or circumstantial evidence or the McDonnell Douglas factors, once 8 a prima facie case of discrimination has been made, the burden shifts to the employer to 9 articulate some legitimate, nondiscriminatory reason for the challenged action. This 10 burden is one of production, not persuasion and involves no credibility assessment.” Id. 11 at 723 (citations and internal quotation marks omitted). 12 Third, “the employee must show that the articulated reason is pretextual. . . . 13 Here too, a plaintiff can prove pretext in multiple ways, either: (1) directly, by showing that 14 unlawful discrimination more likely than not motivated the employer; (2) indirectly, by 15 showing that the employer's proffered explanation is unworthy of credence because it is 16 internally inconsistent or otherwise not believable; or via a combination of these two kinds 17 of evidence.” Id. (internal quotation marks omitted). 18 “Under any approach, generally, very little evidence is necessary to raise a 19 genuine issue of fact regarding an employer's motive. For instance, the Supreme Court 20 has instructed that a plaintiff's prima facie case, combined with evidence that the 21 employer's asserted justification is false, may be enough. However, the plaintiff at all 22 times retains the ultimate burden of persuading the trier of fact that an employer's 23 contested action was due in part or in whole to discriminatory intent. Accordingly, where 24 abundant and uncontroverted independent evidence suggests that no discrimination 25 occurred, plaintiff's creation of only a weak issue of fact as to whether the employer's 26 reason was untrue will not suffice.” Id. at 723–24 (citations and internal quotation marks 27 omitted). 1 laws, California courts look to pertinent federal precedent when applying [California] 2 statutes. In particular, California has adopted the three-stage burden-shifting test 3 established by the United States Supreme Court for trying claims of discrimination, 4 including age discrimination, based on a theory of disparate treatment.” Guz v. Bechtel 5 Nat. Inc., 24 Cal. 4th 317, 354 (2000) (citation omitted) (“This so-called McDonnell 6 Douglas test reflects the principle that direct evidence of intentional discrimination is rare, 7 and that such claims must usually be proved circumstantially.”). 8 b. Goins 9 The parties dispute Goins’s claims based on (i) gender and (ii) disability 10 discrimination. 11 i. Gender 12 UPS argues that Goins’s gender discrimination claim is based on seven 13 allegations.5 UPS argues that (1) Goins did not exhaust allegations 6 & 7; (2) allegations 14 1–7 are not adverse employment actions; (3) Goins’s performance was not satisfactory; 15 (4) Goins cannot show men were treated more favorably; (5) UPS has legitimate non- 16 discriminatory reasons; and (6) Goins cannot show pretext. 17 However, the court has already determined that the only allegation Goins did 18 exhaust was that “she was forced to stand for long hours and assigned to heavy duty 19 areas despite management’s knowledge of her history of knee injury”, which “plausibly 20 carries over from her contention in the administrative charge that she was denied a 21 reasonable accommodation for her disability.” MTD Order at 17 (citing SAC ¶ 58 and 22 23 5 They are: (1) Supervisors denied Goins reasonable accommodations for her knee 24 injury and granted accommodations to similarly situated men on the night shift in the Small Sort; (2) Supervisors denied Goins help in the NGSS manual sort position; 25 (3) Moreno removed Goins from the NGSS manual sort position and gave it to male employees from San Bruno in October 2020; (4) Supervisors routed a heavier workflow 26 to Goins when she rotated in the bagger position; (5) Supervisors gave Goins “write ups” for safety and work methods and gave Goins three write-ups within 30 days; (6) UPS 27 failed to address grievances related to hostility and micromanagement from Supervisors; 1 p. 94) (“the only allegation that has been administratively exhausted by Goins is denial of 2 reasonable accommodation”). The court interpreted this allegation as a claim for 3 disparate treatment because “she contends her denial of reasonable accommodation is 4 based on her gender.” Id. at 21.6 Goins’s opposition argues about various unexhausted 5 allegations, but the court has already addressed this issue thoroughly. Accordingly, this 6 order addresses only the exhausted claim related to her knee injury, and the fact that she 7 was not accommodated for that injury based on her gender. 8 (A) Prima Facie Case 9 The court first assesses whether plaintiff has made out a prima facie case of her 10 discrimination claim. “The plaintiff may do so either by using the McDonnell Douglas 11 framework, or alternatively, may simply produce direct or circumstantial evidence 12 demonstrating that a discriminatory reason more likely than not motivated the employer.” 13 Opara, 57 F.4th at 721–22 (internal quotation marks omitted). 14 (1) Direct Evidence 15 Goins argues that she has direct evidence. Plaintiff cites evidence in the form of 16 testimony that the female plaintiffs generally were (1) made to clean up before their shift 17 whereas men were not, (2) required to clock out to use the restroom, and (3) not 18 accommodated for their disabilities while men were. Opp. at 17–18. 19 “‘[D]irect evidence’ has been defined as evidence of conduct or statements by 20 persons involved in the decision-making process that may be viewed as directly reflecting 21 the alleged discriminatory attitude. When a plaintiff seeks to establish a prima facie case 22 through the submission of actual evidence, very little such evidence is necessary.” 23 Opara, 57 F.4th at 723 (citations and internal quotation marks omitted). “Direct evidence” 24 concerns the reason or intent the employer had when taking the actions—not whether the 25

27 6 The exhausted claim roughly corresponds to claims 1–4 as described by UPS, although 1 actions occurred. Plaintiff simply states that these events occurred, but that is not 2 evidence that a discriminatory reason more likely than not motivated the employer. 3 Moreover, even if plaintiff’s arguments concerning the events that occurred 4 (absent evidence demonstrating intent) could plausibly be considered as evidence of 5 intent, plaintiff does not meaningfully cite to the record when making this argument. As is 6 the case throughout much of plaintiffs’ brief, the lack of citation to the record means that 7 counsel’s argument is just that—argument unsupported by evidence. Plaintiffs cite 8 generally to entire deposition transcripts without identifying pages numbers, line 9 numbers, or quotations. See, e.g., Opp. at 17:8–12 & nn.2–5. The one citation actually 10 including a page number for the proposition that women had to clean up more than men 11 is entirely incomprehensible. Opp. at 18:24 (citing to “Deposition of Salas at pg. 42, 12 attached as Exhibit 5 to the Varlack Decl.”). But the Salas deposition is not paginated, 13 and the ECF-stamped page 42 is not relevant to the argument in the brief. Finally, 14 plaintiff’s direct evidence fails to the extent it relies on unexhausted allegations. 15 (2) McDonnell Douglas framework 16 Having failed to present direct or circumstantial evidence, the court next assesses 17 whether plaintiff in the alternative made out a prima facie case using the McDonnell 18 Douglas framework. 19 “Establishing a prima facie case of . . . discrimination via the McDonnell Douglas 20 factors generally requires a plaintiff to show: ‘(1) she belongs to a protected class; (2) she 21 was qualified for the position; (3) she was subject to an adverse employment action; and 22 (4) similarly situated individuals outside her protected class were treated more 23 favorably.’” Opara, 57 F.4th at 722 (quoting Chuang, 225 F.3d at 1123). 24 First, the parties do not dispute that Goins is a member of a protective class as a 25 female. Plaintiff satisfies this factor. 26 Second, Goins argues that she was qualified to do her job. See Opp. at 24:14–20. 27 As an initial matter, she argues that “UPS has not shown that Goins could not do her job”, 1 problem with plaintiffs’ brief, the citations to the record are entirely incomprehensible.7 2 Nor does she quote the record directly, so her brief effectively asks the court to take on 3 faith that counsel’s arguments reflect record evidence. But the court must review the 4 record evidence—not simply argument from counsel—when evaluating a motion for 5 summary judgment. 6 However, with effort beyond that which is required or reasonable for a court to 7 exercise, the court may have located the portion of the deposition to which plaintiffs refer 8 for this point. Salas, a supervisor, said that “he assume[d]” that Goins “could still do the 9 job of a sorter” “with or without a flipper”, which is a sort of assistant position to the sorter 10 position. Varlack Decl., Ex. 5 at ECF p. 31:6–15. This is scant evidence, but enough to 11 satisfy this factor. Opara, 57 F.4th at 722 (“the requisite degree of proof necessary to 12 13 7 This failure presents consistently throughout plaintiffs’ brief. This order notes 14 particularly consequential and grievous instances, but plaintiffs’ brief often fails to offer citations to the factual record in opposition to defendant’s summary judgment motion. Of 15 course, the summary judgment standard concerns disputes in the factual record. Where plaintiffs fail to cite to the record in response to defendant’s cognizable record evidence, 16 they necessarily fail to establish that the fact is in dispute.

17 Moreover, when plaintiffs do attempt to cite to the record, the citations are usually difficult to parse and often times entirely incomprehensible. Presenting evidence in such a 18 difficult-to-decipher manner “alone warrants exclusion of the evidence.” Orr v. Bank of Am., 285 F.3d 764, 775 & n.14 (9th Cir. 2002) (“We hold that when a party relies on 19 deposition testimony in a summary judgment motion without citing to page and line numbers, the trial court may in its discretion exclude the evidence. . . . The same holds 20 true for references to an affidavit without citing to paragraph numbers.”); see also United States v. Real Prop. Located at 475 Martin Lane, Beverly Hills California, 298 F. App'x 21 545, 550 (9th Cir. 2008) (“When a party relies on evidence to support a summary judgment motion without citing to its location, ‘the trial court may in its discretion exclude 22 the evidence.’”) (quoting Orr, 285 F.3d at 774–75); Huey v. UPS, 165 F.3d 1084, 1085 (7th Cir.1999) (“judges need not paw over the files without assistance from the parties”). 23

Here, plaintiffs cite to “Exh. 4 Salas” at various pages, which the court takes to mean 24 Exhibit 5 to the Varlack Declaration (Dkt. 72, Ex. 5, starting at ECF p. 25), which is an unpaginated deposition transcript of Machael Salas. But there is a much larger problem 25 than plaintiffs’ citation to the wrong exhibit, which is an innocent enough oversight. Because the version of the Salas deposition transcript that plaintiffs submit as evidence is 26 unpaginated, identifying the source of plaintiffs’ citations in the transcript (in the circumstances where plaintiffs even attempt to provide page numbers) is exceedingly 27 difficult. This difficulty is compounded by the fact that plaintiffs’ brief does not quote 1 establish a prima facie case on summary judgment is minimal and does not even need to 2 rise to the level of a preponderance of the evidence”). 3 Third, UPS argues that Goins has not established that she was subject to an 4 adverse employment action. An adverse employment action is one that “materially 5 affect[s] the compensation, terms, conditions, or privileges of the [plaintiff’s] employment.” 6 Chuang, 225 F.3d at 1126. Goins argues that she was not given easier work 7 assignments (Opp. at 19:13–16), that Salas as a supervisor worked in non-supervisory 8 positions which took away work opportunities from female baggers (Opp. at 19:17–19), 9 that UPS subjected Goins to tests designed to aggravate her disability and give her 10 harder work (Opp. at 19:23–20:8), that females were required to clean up and men 11 weren’t (Opp. at 20:9–15), that she was transferred (Opp. at 20:28–21:1), and that men 12 were given helpers but she was not (Opp. at 10–14). 13 Goins’s arguments are scattered. She includes entirely new allegations along with 14 allegations that this court already found were not exhausted. Goins has only exhausted 15 her claim that “she was forced to stand for long hours and assigned to heavy duty areas 16 despite management’s knowledge of her history of knee injury.” MTD Order at 17, 21 & 17 27 (citing SAC ¶ 58) (“the only allegation that has been administratively exhausted by 18 Goins is denial of reasonable accommodation”). Accordingly, Goins’s adverse 19 employment action arguments are limited to not being given easier work assignments or 20 a helper, being given harder work, and otherwise not being accommodated for her knee 21 injury. These arguments ultimately allege that UPS did not provide reasonable 22 accommodations for her knee injury. 23 In the context of a claim for retaliation or disability discrimination, courts directly 24 considering the question have uniformly concluded that a failure to accommodate cannot 25 constitute an adverse employment action as a matter of law. See Doe v. Dep't of Corr. & 26 Rehab., 43 Cal. App. 5th 721, 735–36 (2019) (“No court has ever held that a failure to 27 reasonably accommodate an employee's disability—which is a separate cause of action 1 discrimination or retaliation claim.”); accord Barnett v. Costco Wholesale Corp., No. 22- 2 55550, 2023 WL 6276294, at *1 (9th Cir. Sept. 26, 2023) (“Under California law, failure to 3 accommodate or engage cannot constitute an adverse employment action. . . . Because 4 Barnett failed to demonstrate an underlying adverse employment action, the district court 5 properly dismissed her claims for discrimination”); see also Barnett v. Costco Wholesale 6 Corp., No. 220CV04896ODWJEMX, 2022 WL 1443332, at *6 (C.D. Cal. May 6, 2022), 7 aff'd, No. 22-55550, 2023 WL 6276294 (9th Cir. Sept. 26, 2023) (“A failure to 8 accommodate an employee's disability or engage in an interactive process does not 9 qualify as the adverse action for a disability discrimination claim.”); Lopez v. Charter 10 Commc'ns Inc., No. CV 19-00006-CJC(KKX), 2020 WL 2095797, at *8 (C.D. Cal. Jan. 8, 11 2020) (“decision not to accommodate Lopez's disability does not qualify as an adverse 12 employment action for the purposes of her discrimination claim”); Kroeger v. Vertex 13 Aerospace LLC, No. CV 20-3030-JFW(AGRX), 2020 WL 3546086, at *11 (C.D. Cal. June 14 30, 2020) (“failure to accommodate Plaintiff cannot form the basis of a disability 15 discrimination claim”); compare Martirosyan v. United Parcel Serv., Inc., No. 2:23-CV- 16 01094-SB-DFM, 2023 WL 6634167, at *8 (C.D. Cal. Sept. 26, 2023) (“An employer's 17 failure to accommodate is not an adverse employment action for purpose of a retaliation 18 claim.”) with Jones v. Lodge at Torrey Pines P'ship, 42 Cal. 4th 1158, 1168 (2008) (“the 19 employment actions that can give rise to a claim for retaliation are identical to the actions 20 that can give rise to a claim for discrimination”). 21 The reasoning applies equally well to gender discrimination claims, and in fact 22 many of the cases discussing this issue speak generally of “discrimination” claims rather 23 than specifying that their holdings apply only to disability discrimination claims. See., 24 e.g., See Doe, 43 Cal. App. 5th at 735–36 (reasoning concerns “a discrimination or 25 retaliation claim” generally); Barnett v. Costco Wholesale Corp., No. 22-55550, 2023 WL 26 6276294, at *1 (9th Cir. Sept. 26, 2023) (applying to reasoning when affirming dismissal 27 of claims for claims alleging “discrimination, retaliation, failure to prevent discrimination 1 However, some courts that have not addressed the question have permitted 2 discrimination claims to survive motions to dismiss or summary judgment where the 3 alleged adverse employment action was a failure to accommodate. These cases are less 4 persuasive because they do not consider the issue. 5 Goins argues that the court should decline to follow the nearly one-sided body of 6 case law holding that a failure to accommodate cannot be an adverse employment 7 action. First, Goins argues those cases are not binding on this court and should 8 accordingly be ignored. Opp. at 20:23. Second, she argues that Doe did not concern a 9 gender discrimination claim. Third, she seems to argue that the court should find that the 10 adverse action was not based on her knee injury. Instead, she argues that “making 11 Goins spend her time cleaning up where the men did not have to was because of sex,” 12 and that if cleanup duty “exacerbated her knee injury, which was also a willful failure to 13 accommodate”, that is beside the point and does not detract from the main adverse 14 action that she was forced to do cleanup duty. 15 Goins’s first argument that the cases are not binding on this court is unavailing. 16 This court looks to California courts (and the Ninth Circuit) when interpreting FEHA, a 17 California law. While not binding, the cases UPS cites are certainly persuasive, as they 18 are the only cases to directly address this issue. Critically, plaintiffs provide no contrary 19 authority. While the court has identified some orders that do not consider this issue and 20 allow allegations of a failure to accommodate to constitute an adverse employment 21 action, neither Goins nor the court has uncovered an order addressing this issue and 22 deciding in a reasoned opinion that a failure to accommodate can constitute an adverse 23 employment action supporting a discrimination claim. 24 Plaintiff’s second argument that the reasoning doesn’t apply to gender 25 discrimination claims is also unavailing—the Doe case clearly holds that a failure to 26 accommodate cannot constitute an adverse employment action under the McDonnell 27 Douglas framework, and while the case did not present a gender-discrimination claim, its 1 considering this question speak of its applicability to “discrimination” cases generally. 2 Plaintiff’s third argument that the court consider a new, unexhausted allegation 3 that women were made to clean up instead of her exhausted claim concerning a failure to 4 accommodate her knee injury is also unavailing, as the court has clearly delineated the 5 contours of Goins’s exhausted allegations. Goins did not exhaust an argument about 6 gender discrimination for cleanup duty; she exhausted only the failure to accommodate 7 claim that she casts aside in an attempt to distinguish Doe. The rest of plaintiff’s 8 arguments concerning this prong are disjointed and, critically, rely on non-exhausted 9 allegations. See Opp. at 21–24. 10 Because she failed to show that she was subject to an adverse employment 11 action, Goins has failed to make a prima facie case for her gender discrimination claim. 12 Fourth, UPS argues that Goins has not presented evidence showing that similarly 13 situated individuals outside her protected class were treated more favorably. To be 14 “similarly situated” under Title VII, employees must be similar in “all material respects.” 15 Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1157 (9th Cir. 2010). That is, comparator 16 employees must both have similar jobs as a plaintiff and “display similar conduct.” Id. 17 Goins counters that “men did not have to clean the area pre-shift, men were 18 accommodated without and [sic] ADA process, and men were not unfairly subjected to 19 OJS/Safety testing, supra, at Varlack Decl. Exh. 11.)” [sic]. Opp. at 24:21–23. 20 Goins’s argument that men did not have to clean was not exhausted, was not 21 presented in the SAC, and is raised for the first time on summary judgment. See Opp. at 22 20:19–20. Plaintiff’s argument concerning the OJS/Safety testing argument was also not 23 exhausted, and even if it were she argues but does not cite to the record that OJS/Safety 24 testing resulted in her having more work than men. Opp. at 20:4–6. (An “OJS” is short 25 for On the Job Observations, which is essentially a performance review.) 26 The only exhausted allegation plaintiff raises is that “men were accommodated 27 without and [sic] ADA process”. Goins doesn’t cite any evidence in the record showing 1 to the record when she argues that supervisors have the discretion to give injured 2 baggers lighter chutes, but that does not support an argument that Goins was treated any 3 differently than men.8 Opp. at 19:13–15. 4 Goins also argues that a helper was given to men but not her. Opp. at 21 (citing 5 Declaration of Galema Goins, Dkt. 71 (“Goins Decl.”) at 149; Salas Dep. at 4210). In 6 support, she cites the Goins declaration stating that “I was denied reasonable 7 accommodation based on my gender when Ricardo replaced me with Walter, a man, who 8 was not a better worker than me and was not injured like I was.” Goins Decl. ¶ 14. But 9 that paragraph is a bare legal conclusion that says nothing about any helper being 10 provided to any gender. In fact, the entire declaration is devoid of the word “helper” or 11 “flipper”, which is an assisting role. 12 Goins argues that supervisor Smith knew Goins was disabled but removed her 13 accommodation because of bidding needs, and no man was treated this way. Opp. at 21 14 (citing “Smith Testimony at Id. [sic] at Exh. 5”).11 In support of this point, Goins cites an 15 entire collection of unpaginated deposition transcript excerpts that run over 10 pages. 16 Elsewhere in the brief plaintiff cites to “pg. 24” of the Smith deposition for a similar point 17 (see Opp. at 20:18–20), but that citation does not point to any document actually existing 18 19 8 Even if she had cited the record in support of this argument, as addressed above, that 20 allegation cannot be the basis for a gender discrimination claim because it is not an adverse employment action. 21 9 The court reads this ambiguous citation to be to paragraph 14 of the Goins declaration. 22 10 Again, the citation to the Salas deposition is entirely unhelpful because that exhibit is 23 unpaginated. The court’s best guess is that the citation is to Dkt. 72 at ECF pp. 30–31. Those pages refer to a “flipper” position, although it is difficult to know if this is the role 24 referred to because the brief says “helper” and the deposition does not use that term, as far as the court’s entirely unassisted search can determine. The court’s independent 25 reading of the Salas Deposition—unassisted by any cognizable citation from plaintiff—did not reveal any discussion of men getting helpers and women not getting them. 26 11 This citation is entirely incomprehensible. As an initial matter, plaintiffs’ previous 27 citation refers to multiple sources, making the usage of “id.” indeterminate. However, the 1 in the record, and as far as the court’s independent investigations have revealed the word 2 “bid” was never used in the Smith deposition. Ultimately, plaintiff’s argument is entirely 3 lacking in factual support that could be even remotely identified from the plaintiffs’ brief. 4 Goins argues that Steve Sum was moved from a position that hurt his shoulder 5 without needing to submit ADA paperwork. Opp. at 21 (citing “Exh., 5, at pgs. 42 Salas” 6 [sic]). Again, this citation is entirely meaningless, and the court’s independent search of 7 the record for references to Steve Sum brings up an irrelevant point at Dkt. 72 ECF 8 p. 354. The relevant discussion could perhaps be found at Dkt. 72 ECF pp. 36–38, 9 where Salas says he was aware that Steve Sum had an injury and was assigned to a 10 different job from Goins due to a “bidding process.” But plaintiff does not cite to this, and 11 moreover even if she did this fact alone doesn’t meet Goins’s burden. She doesn’t argue 12 that she was denied an easier position through a bidding process, or that Sum was 13 actually treated differently in any way. 14 Goins argues that there is a “similarly situated compactor, [sic] Matt”, who worked 15 close to Goins. Opp. at 22–23. Goins seems to argue that it was a problem for her to 16 work next to Matt, because Matt was disabled and couldn’t work fast, so she would have 17 to work faster to pick up his slack. She appears to argue that UPS positioned Matt next 18 to Goins on purpose to help Matt who was disabled at the expense of Goins who was 19 also disabled, and the only difference was that he is a man. But even to the extent Goins 20 argues that Matt was treated differently, she cites no evidence in the record supporting a 21 finding that Matt is “similar in all material respects.” Hawn, 615 F.3d at 1157. She does 22 not even explain what position Matt has, how it is similar to her position, or how they 23 perform similarly. That is fatal, as it is her burden to at least provide some evidence of a 24 similarly-situated male. Moreover, to the extent that plaintiff does cite to the record in 25 support of this argument, the citations are entirely incomprehensible. She cites to “Exh. 26 12 p. 127:23-25-128:1-25” and “Exh. 12 pg. 129”. These are entirely untethered to any 27 1 recognizable portion of the record.12 2 Given the confused state of the briefing on this point and the utter lack of any 3 identification in the record of supporting facts, Goins cannot be said to have satisfied the 4 prong that similarly situated men were treated more favorably. 5 Because she fails to provide support that an adverse employment event occurred 6 or that similarly situated men were treated more favorably, she has failed to establish a 7 prima facie case and her gender discrimination claim must fail. 8 (B) UPS’s Legitimate Nondiscriminatory Reason 9 “[O]nce a prima facie case of discrimination has been made, the burden shifts to 10 the employer to articulate some legitimate, nondiscriminatory reason for the challenged 11 action. This burden is one of production, not persuasion and involves no credibility 12 assessment.” Opara, 57 F.4th at 723 (citations and internal quotation marks omitted). 13 Here, Goins has failed to make a prima facie showing, so UPS need not show a 14 legitimate nondiscriminatory reason. However, assuming Goins had made such a 15 showing, UPS has articulated some legitimate, nondiscriminatory reason for the 16 challenged action. UPS provides evidence that supervisors assign employees to tasks 17 based on operational efficiency and safety compliance. Moreno Decl. ¶¶ 18–20 & 25–7. 18 These same concerns require that supervisors regularly monitor and document safety 19 and methods demonstrated by all employees in Small Sort and provide training where 20 necessary. Id. ¶¶ 5, 19 & 23–4. UPS also argues that it did attempt to accommodate 21 Goins multiple times, and in multiple ways. She testified at deposition that she has 22 received light duty and alternate positions. Goins Dep. at 288:8–289:8 & 296:8–10. And 23 Goins and her attorney have failed to respond to UPS’s attempts to provide reasonable 24 25 12 It is possible that the citation is to Exhibit 12 to the Varlack declaration, which are UPS 26 Grievance Forms but they are from Jones-Jackson—not Goins. And they are not paginated, so the references to page number would be useless. Moreover, the exhibit 27 isn’t even 129 pages long. The court is left entirely adrift as to what plaintiff might be 1 accommodations. See Dunn Decl. ¶¶ 11–20; see also Goins Dep. at 257:13–15 2 (acknowledging attorney communication with UPS). 3 (C) Pretext 4 If an employer can articulate a legitimate, nondiscriminatory reason for the 5 challenged action, “the employee must show that the articulated reason is pretextual.” 6 Opara, 57 F.4th at 723. Goins must prove “both that the reason was false, and that 7 discrimination was the real reason.” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 8 (1993). Put another way, “there must be evidence supporting a rational inference that 9 intentional discrimination, on grounds prohibited by the statute, was the true cause of the 10 employer’s actions.” Guz, 24 Cal. 4th at 361. 11 Goins addresses pretext in a few lines of her brief, in a section that is entirely 12 devoid of citation to the factual record. Opp. at 24:24–25:5. The brief includes argument 13 from counsel—absent any factual support—that Goins was removed from the NGSS 14 position after complaining about gender discrimination; that men were given 15 accommodations without an ADA process, which shows that the ADA process was 16 pretextual; and that there is a record of her having an OJS on a day she did not work. 17 Even if plaintiff had attempted to support these arguments with the record in any way, 18 evidence of these facts would not have carried plaintiff’s burden. But without any citation 19 to the record at all,13 it is impossible to find that plaintiff met her burden here. 20 Goins has failed to establish a prima facie case, UPS has established some 21 legitimate, nondiscriminatory reason for the challenged action, and Goins has failed to 22 show that UPS’s articulated reasons were pretext. UPS’s motion for summary judgment 23 with respect to Goins’s first and third claims for Title VII and FEHA violations based on 24 gender discrimination is therefore GRANTED. 25 ii. Disability 26 27 1 UPS argues that following the court’s order on the motion to dismiss the SAC, 2 Goins does not have a viable claim for disability discrimination. See MTD Order. Rather, 3 any viable claim that is related to Goins’s allegation that she was denied reasonable 4 accommodation is limited to the claim for gender discrimination. As such, the prior order 5 precludes a claim that she was denied reasonable accommodation based on disability. 6 Plaintiff’s brief argues that “[t]o the extent the Court allows a disability argument, 7 plaintiffs submit that Sonia Lopez experienced shoulder issues, which limited her work 8 capabilities.” Opp. at 29 (emphasis added). UPS’s reply argues that Goins abandoned 9 her claim for disability discrimination, to the extent she was allowed to make one. 10 UPS’s arguments must prevail. First, the court found that only Goins’s gender- 11 based discrimination claim was exhausted. Second, Goins abandoned any disability- 12 based claim by failing to address it in her opposition. Accordingly, UPS’s motion for 13 summary judgment with respect to Goins’s first and third claims for Title VII and FEHA 14 violations based on disability discrimination is therefore GRANTED. 15 c. Lopez 16 The parties dispute Lopez’s claims based on (i) gender and (ii) disability 17 discrimination. 18 i. Gender 19 With respect to gender discrimination, the court has already determined Lopez 20 exhausted only two allegations: (1) that she was denied reasonable accommodation 21 based on her gender for shoulder injuries while men were granted easier workloads 22 (MTD Order at 27 (citing SAC ¶ 114)); and (2) that she faced adverse treatment in the 23 form of more difficult work assignments than her male colleagues (SAC ¶¶ 120–21). 24 UPS’s motion correctly argues that only those two allegations are exhausted, 25 which UPS calls allegations 5 and 6. Mot. at 22–23. Lopez agrees. Opp. at 26. 26 (A) Prima Facie Case 27 The court first assesses whether plaintiff made out a prima facie case of her 1 framework, or alternatively, may simply produce direct or circumstantial evidence 2 demonstrating that a discriminatory reason more likely than not motivated the employer.” 3 Opara, 57 F.4th at 721–22 (internal quotation marks omitted). 4 (1) Direct Evidence 5 Lopez’s argument that she has direct evidence is identical to—and combined in 6 the same section of the brief as—Goins’s and Jones-Jackson’s argument. For the 7 reasons discussed with respect to Goins above, Lopez does not identify any direct 8 evidence. The question has to do with the reason or intent the employer had when taking 9 the actions, not whether the actions occurred. Simply stating that events occurred 10 provides insufficient direct or circumstantial evidence that a discriminatory reason more 11 likely than not motivated the employer. 12 Moreover, even if the argument could plausibly show intent, plaintiffs do not 13 meaningfully cite to the record when making this argument and therefore do not support it 14 with any evidence. They cite generally to entire deposition transcripts without pages 15 numbers, line numbers, or quotations. Opp. at 17:8–12 & nn.2–5. The one page they 16 actually cite to for the proposition that women had to clean up more than men is entirely 17 incomprehensible, and appears to cite generally to an entire unpaginated exhibit of 18 deposition transcripts. Opp. at 18:24 (citing to “Deposition of Salas at pg. 42, attached as 19 Exhibit 5 to the Varlack Decl.”). 20 (2) McDonnell Douglas framework 21 Having failed to present direct or circumstantial evidence, the court next assesses 22 whether plaintiff in the alternative made out a prima facie case using the McDonnell 23 Douglas framework. 24 “Establishing a prima facie case of . . . discrimination via the McDonnell Douglas 25 factors generally requires a plaintiff to show: ‘(1) she belongs to a protected class; (2) she 26 was qualified for the position; (3) she was subject to an adverse employment action; and 27 (4) similarly situated individuals outside her protected class were treated more 1 First, the parties do not dispute that Lopez is a member of a protective class as a 2 female. 3 Second, Lopez fails to even attempt to argue that she was qualified. Plaintiffs 4 argue that Goins and Jones-Jackson were qualified, but there is no argument (much less 5 citation to the record) that Lopez was qualified for her position. Accordingly, Lopez fails 6 to establish a prima facie case of gender discrimination. 7 Third, Lopez argues that she suffered adverse employment actions because 8 (1) she was denied reasonable accommodations for her shoulder injuries while similar or 9 lesser ailments in male colleagues were accommodated with lighter workloads; and 10 (2) she was assigned more laborious tasks than her male counterparts. Opp. at 26.14 11 With respect to her reasonable accommodation argument, she argues that 12 Michael Salas admitted to making informal determinations about her capabilities without 13 following official paperwork for accommodations. Opp. at 27 (citing Varlack Decl, Ex. 4 at 14 pp. 82–88).15 Although the citation is entirely incomprehensible, plaintiff may be referring 15 to Dkt. 72 at ECF pp. 39–41. But this does not describe any sort of fact that “materially 16 affect[s] the compensation, terms, conditions, or privileges of the [plaintiff’s] employment.” 17 Chuang, 225 F.3d at 1126. That evidence simply shows that Salas did not process 18 medical paperwork for Lopez, and that he would help her find an accommodation if she 19 requested one. Dkt. 72 at ECF pp. 39–41. Plaintiff also argues that another employee 20 named Steven was transferred through a bidding process and that she was allowed to 21 work at her own pace. Opp. at 27:10–14. Again, these arguments do not describe any 22

24 14 She also makes a number of unexhausted arguments, for example that females were required to clean up and men were not and that she felt harassed. The court does not 25 assess plaintiffs’ unexhausted allegations. Opp. at 27. 26 15 The court reads plaintiffs’ citation to “Ex. 4” as Exhibit 5 (the Salas Deposition transcript) rather than Exhibit 4, which is a single-page printout of what appears to be a 27 blank table with the words “WITHDRAWN, EXHIBIT” printed across it. Also, because the 1 adverse material impact on the conditions of her employment. She also argues that she 2 had to clean up work areas that males didn’t, which is a brand-new unexhausted 3 allegation. Finally, plaintiff argues entirely without record citation that as a general matter 4 she was not provided a reasonable accommodation. The argument is difficult to follow, 5 but even if she had argued and supported this point, as discussed above with respect to 6 Goins, a failure to accommodate a disability does not constitute an adverse employment 7 action with respect to a discrimination claim. 8 With respect to her argument that she was given more difficult work, plaintiff does 9 not provide anything but the most cursory argument—nor does she provide any record 10 citation—supporting her allegation that she was given more difficult work than men. That 11 allegation certainly would have constituted a cognizable adverse employment action had 12 plaintiff offered any citation to the record supporting that fact. 13 As she fails to identify an adverse employment action, Lopez fails to establish a 14 prima facie case of gender discrimination for this reason as well. Fundamentally, Lopez 15 failed to cite any record evidence that could support this prong, even though she makes 16 passing arguments in her brief that could have potentially satisfied her burden on this 17 element if supported by the record. 18 Fourth, Lopez must present evidence showing that similarly situated individuals 19 outside her protected class were treated more favorably. To be “similarly situated” under 20 Title VII, employees must be “similar in all material respects.” Hawn, 615 F.3d at 1157. 21 That is, comparator employees must both have similar jobs as a plaintiff and “display 22 similar conduct.” Id. 23 Lopez only cursorily addresses this element. She argues generally that women 24 had to clean up and men did not, but she does identify any particular similarly-situated 25 men who did not have to clean up. Opp. at 27:1–9. The only individual she identifies at 26 all is “Steven, who had a similar injury but was allowed to transfer to a different position 27 through a bidding process.” Opp. at 27:10–12. Plaintiff does not attempt at all to explain 1 Lopez does not cite evidence that she was not allowed to transfer through a bidding 2 process. Additionally, this allegation is unexhausted. 3 As she fails to identify any similarly-situated individual who was treated more 4 favorably, Lopez fails to establish a prima facie case of gender discrimination for this 5 reason as well. Lopez utterly fails present evidence that any similarly-situated individual 6 exists, much less that he was treated more favorably. 7 (B) UPS’s Legitimate Nondiscriminatory Reason 8 “[O]nce a prima facie case of discrimination has been made, the burden shifts to 9 the employer to articulate some legitimate, nondiscriminatory reason for the challenged 10 action. This burden is one of production, not persuasion and involves no credibility 11 assessment.” Opara, 57 F.4th at 723 (citations and internal quotation marks omitted). 12 Here, Lopez has failed to make a prima facie showing, so UPS need not show a 13 legitimate nondiscriminatory reason. However, assuming Lopez had made such a 14 showing, UPS has articulated a legitimate, nondiscriminatory reason for the challenged 15 action. UPS argues that, to the extent Lopez’s case relies on her work assignments, her 16 positions changed based on her failure to keep up with performance and production 17 standards, which are decisions made based on operational efficiency, safety concerns, 18 and employee performance. Lopez acknowledged that she was told her inability to “keep 19 up with [her] work” was the reason she would be moved. Lopez Dep. at 174:5–6. To the 20 extent Lopez argues she was given more work than men, UPS provided evidence that an 21 automated flow distributes packages evenly to employees. Moreno Decl. ¶ 20. If Lopez 22 and the other Small Sort employees received a heavier flow on any one day, the decision 23 was based on volume and not disability. Id. Accordingly, UPS has met its burden of 24 production. 25 (C) Pretext 26 If an employer can articulate a legitimate, nondiscriminatory reason for the 27 challenged action, “the employee must show that the articulated reason is pretextual.” 1 Lopez acknowledges that she has declined to address the pretext element 2 because she does not believe UPS met its burden to show a legitimate non- 3 discriminatory reason. Opp. at 28:20–22 (“Because UPS cannot show a uniform non- 4 discriminatory purpose for its actions towards Lopez and the others, the burden for pre- 5 text did not shift. UPS’ motion therefore should be denied.”). Accordingly, Lopez has 6 abandoned the argument and forfeits this element. 7 Lopez has failed to establish a prima facie case, UPS has established a legitimate, 8 nondiscriminatory reason for the challenged action, and Lopez has forfeited the pretext 9 element. UPS’s motion for summary judgment with respect to Lopez’s first and third 10 claims for Title VII and FEHA violations based on gender discrimination is therefore 11 GRANTED. 12 ii. Disability 13 UPS first argues that following the court’s order on the motion to dismiss the SAC, 14 Lopez does not have a viable claim for disability discrimination. Rather, any viable claim 15 that is related to Lopez’s allegation that she was denied a reasonable accommodation is 16 limited to the claim for gender discrimination. As such, the order precludes a claim that 17 she was denied reasonable accommodation based on her alleged disabilities. UPS next 18 argues that if the court allows the claim, it fails on substance. 19 Plaintiff argues that “[t]o the extent the Court allows a disability argument, 20 plaintiffs submit that Sonia Lopez experienced shoulder issues, which limited her work 21 capabilities. She would inform Salas when her shoulder prevented her from performing 22 certain tasks. There is mention of other employees like Steven, who also had shoulder 23 injuries but were not required to bag, suggesting inconsistencies in job assignments 24 relative to physical limitations.” Opp. at 29–30 (emphasis added). 25 The court found in its order on the motion to dismiss the SAC that Lopez 26 exhausted only gender-discrimination claims—not a disability claim: “Lopez plausibly 27 alleges that she was treated differently based on gender where she alleges that she was 1 workloads. SAC ¶ 114. Lopez also plausibly alleges that she faced adverse treatment in 2 the form of more difficult work assignments than her male colleagues. SAC ¶¶ 120–21.” 3 MTD Order at 21–22; see also id. at 27–28 (“Defendant must respond to Lopez’ 4 allegations of disparate treatment that she was also denied reasonable accommodation 5 based on her gender in violation of both Title VII and FEHA. Lopez alleges she was 6 denied reasonable accommodations for shoulder injuries while men were granted easier 7 workloads. Defendant must also respond to Lopez’ allegations of disparate treatment 8 based on work assignments. Lopez alleges that she faced adverse treatment in the form 9 of more difficult work assignments than her male colleagues.”) (citations omitted). 10 Because that order clearly limited Lopez’s claims to gender discrimination, an 11 independent disability-discrimination claim was not exhausted, and plaintiff cannot assert 12 that claim now. The court need not address the merits of the non-exhausted claim. 13 Accordingly, UPS’s motion for summary judgment with respect to Lopez’s first and 14 third claims for Title VII and FEHA violations based on disability discrimination is 15 therefore GRANTED. 16 d. Jones-Jackson 17 The parties dispute Jones-Jackson’s claims based on (i) gender and (ii) age 18 discrimination. 19 The court has already determined that Jones-Jackson exhausted only three 20 allegations: she was denied (1) “backpay to cover the period of a gender-based pay 21 discrepancy”; (2) “the opportunity to work overtime while men with the same or less 22 seniority were given such opportunity”; and (3) “the preferential treatment given to 23 younger women.” MTD Order at 19. Plaintiff limits her arguments to these allegations. 24 Opp. at 25–26 & 28–29. 25 i. Gender 26 (A) Prima Facie Case 27 The court first assesses whether plaintiff made out a prima facie case of her 1 framework, or alternatively, may simply produce direct or circumstantial evidence 2 demonstrating that a discriminatory reason more likely than not motivated the employer.” 3 Opara, 57 F.4th at 721–22 (internal quotation marks omitted). 4 (1) Direct Evidence 5 Jones-Jackson’s argument that she has direct evidence is identical to—and 6 combined in the same section of the brief—as Goins’s and Lopez’s argument. For the 7 reasons discussed with respect to Goins above, Jones-Jackson does not identify any 8 direct evidence. The question has to do with the reason or intent the employer had when 9 taking the actions, not whether the actions occurred. Simply stating that that events 10 occurred provides insufficient direct or circumstantial evidence that a discriminatory 11 reason more likely than not motivated the employer. 12 Moreover, even if the argument could plausibly show intent, plaintiffs do not 13 meaningfully cite to the record when making this argument and therefore do not support it 14 with any evidence. They cite generally to entire deposition transcripts without pages 15 numbers, line numbers, or quotations. Opp. at 17:8–12 & nn.2–5. The one page they 16 actually cite to for the proposition that women had to clean up more than man is entirely 17 incomprehensible, and appears to cite generally to an entire unpaginated exhibit of 18 deposition transcripts. Opp. at 18:24 (citing to “Deposition of Salas at pg. 42, attached as 19 Exhibit 5 to the Varlack Decl.”). 20 (2) McDonnell Douglas framework 21 Having failed to present direct or circumstantial evidence, the court next assesses 22 whether plaintiff in the alternative made out a prima facie case using the McDonnell 23 Douglas framework. 24 “Establishing a prima facie case of . . . discrimination via the McDonnell Douglas 25 factors generally requires a plaintiff to show: ‘(1) she belongs to a protected class; (2) she 26 was qualified for the position; (3) she was subject to an adverse employment action; and 27 (4) similarly situated individuals outside her protected class were treated more 1 First, the parties do not dispute that Lopez is a member of a protected class as a 2 female. 3 Second, Jones-Jackson argues that “[s]he was qualified to do her job, and can still 4 do her job after twenty-five years.” Opp. at 25 (citing Jones-Jackson Decl. ¶¶ 30–31). 5 Plaintiff here provides a coherent citation to record evidence. However, the paragraphs 6 of Jones-Jackson’s declaration that she cites to are completely irrelevant to the argument 7 presented in the brief and do not support the claim that she is qualified. Although plaintiff 8 at least in this instance attempts to provide a citation to the record to support an argued 9 fact, the court is puzzled at the cited material’s irrelevance. 10 Accordingly, Jones-Jackson fails to meet her burden of providing any evidentiary 11 support that she was qualified for the position, so she fails to establish a prima facie case 12 of gender discrimination. 13 Third, Jones-Jackson argues she was subject to adverse employment actions 14 because (1) she was paid less than men, and never received backpay; (2) she did not 15 receive overtime opportunities; and (3) people falsified her timeclock entries. Opp. at 25. 16 Her third contention concerning timeclock manipulation was not exhausted and is 17 not properly raised. Concerning the exhausted allegations, the argument section of the 18 brief is entirely devoid of record citations supporting them. When presenting her first 19 argument that she was paid less than men and never received backpay, Jones-Jackson 20 generally refers to the section of the brief discussing Rule 56(d), noting that “UPS by 21 omission admitted to EPA/CEPA violations by acknowledging her retro pay in 2019.” 22 Opp. at 29. The only evidence cited in that section of the brief is Jones-Jackson’s 23 paystub, which includes an entry called “Retro Wages.” Varlack Decl., Ex. 2 at ECF p. 24 11; see also White Decl, at ¶ 13 (describing the backpay reflected on the pay statement). 25 But Jones-Jackson’s argument that those “retro wages” did not constitute backpay is 26 pure speculation. Rather than even attempting to present any sort of evidence as to what 27 backpay was owed her (or even how many hours she was owed backpay for), she simply 1 pay was for the reasons UPS stated . . . . because the other Plaintiffs Lopez and Goins 2 also received ‘retro pay’ at the same time.” Opp. at 11. Plaintiff’s efforts here amount to 3 pure speculation, and they are so lacking that they do not even satisfy the low degree of 4 proof necessary to establish a prima facie case on summary judgment. 5 Jones-Jackson appears to have abandoned her second allegation that she did not 6 receive overtime opportunities. She addresses it in a single sentence stating that 7 “Statistical data will demonstrate that men with less seniority were unjustly preferred for 8 overtime hours”, but she does not provide or cite to any such evidence. Accordingly, her 9 allegation concerning overtime opportunities fails. 10 As she fails to identify an adverse employment action, Jones-Jackson fails to 11 establish a prima facie case of gender discrimination for this reason as well. 12 Fourth, Jones-Jackson must present evidence showing that similarly situated 13 individuals outside her protected class were treated more favorably. To be “similarly 14 situated” under Title VII, employees must be “similar in all material respects.” Hawn, 615 15 F.3d at 1157. That is, comparator employees must both have similar jobs as a plaintiff 16 and “display similar conduct.” Id. 17 Jones-Jackson argues that she was paid less than comparator Steve Smith, who 18 is one day apart in seniority from her. Opp. at 29. She cites record evidence supporting 19 that similarity in seniority (albeit in another section of the brief). Opp. at 12 (citing White 20 Decl. ¶ 13). However, that is where her allegations concerning Smith end. She provides 21 no indication what his job is, how they are similarly situated except for tenure, or that they 22 display similar conduct. She admits as much: “although Jones Jackson thinks that she 23 has enough evidence to demonstrate that she was paid less than Smith, she is missing 24 the ‘what and why’ of UPS’ decision making.” Opp. at 12:8–10. 25 As she fails to identify any similarly-situated individual who was treated more 26 favorably, Lopez fails to establish a prima facie case of gender discrimination for this 27 reason as well. 1 “[O]nce a prima facie case of discrimination has been made, the burden shifts to 2 the employer to articulate some legitimate, nondiscriminatory reason for the challenged 3 action. This burden is one of production, not persuasion and involves no credibility 4 assessment.” Opara, 57 F.4th at 723 (citations and internal quotation marks omitted). 5 Here, Jones-Jackson has failed to make a prima facie showing, so UPS need not 6 show a legitimate nondiscriminatory reason. However, assuming Jones-Jackson had 7 made such a showing, UPS has articulated a legitimate, nondiscriminatory reason for the 8 challenged action. UPS has submitted evidence showing that during the relevant time 9 period, the job classification code for Jones-Jackson was H345 (“unloader/loader”) and 10 Smith’s code was H340 (“pickoff”). White Decl. ¶13. Pickoffs are considered a “skilled” 11 position and were paid a higher rate of pay under the CBA. Id. For example, Smith is 12 certified to do pickoff work in the tender position. Id. Jones-Jackson does not hold the 13 certification required to work as a tender. Id. UPS’s position was that Jones-Jackson’s 14 rate of pay was correct based on her job code and because she was not a skilled worker. 15 Id. However, following meetings with the Union in early 2019, it agreed to increase 16 Jones-Jackson’s rate of pay. Id. It also agreed to retroactively pay Jones-Jackson 17 $514.56 in the form of backpay for the disputed discrepancy between the pay rates. Id. 18 UPS paid Jones-Jackson this retroactive payment, and the payment is reflected in a 19 wage statement for Jones-Jackson dated July 3, 2019. Id.; & Svanfeldt Decl., Ex. 25. 20 Accordingly, UPS has met its burden of production here. 21 (C) Pretext 22 If an employer can articulate a legitimate, nondiscriminatory reason for the 23 challenged action, “the employee must show that the articulated reason is pretextual.” 24 Opara, 57 F.4th at 723. 25 Jones-Jackson addressed the pretext element in a single sentence: “The stated 26 reasons for the conduct were pretextual because there was no documentation to support 27 that the wage theft didn’t happen.” Opp. at 25:12–14. This statement appears to be in 1 event this single vague, conclusory statement fails to satisfy her burden at this stage. 2 In conclusion, Jones-Jackson has failed to establish a prima facie case, UPS has 3 established a legitimate, nondiscriminatory reason for the challenged action, and Jones- 4 Jackson has failed to meaningfully address the pretext question. UPS’s motion for 5 summary judgment with respect to Jones-Jackson’s first and third claims for Title VII and 6 FEHA violations based on gender discrimination is therefore GRANTED. 7 ii. Age 8 UPS’s motion argues that Jones-Jackson cannot establish a prima facie case of 9 age discrimination. Mot. at 35–36. Jones-Jackson’s opposition brief does not address 10 her age-based discrimination claim at all, and in reply UPS argues that Jones-Jackson 11 abandoned the claim. 12 Here, UPS moved for summary judgment, explaining how Jones-Jackson would 13 fail to make a prima facie showing of age discrimination and addressing many of the 14 factors. Mot. at 35–36. Plaintiff entirely failed to address the claim and has therefore 15 failed to make a prima facie showing of her claim. 16 Accordingly, UPS’s motion for summary judgment with respect to Jones-Jackson’s 17 first and third claims for Title VII and FEHA violations based on age discrimination is 18 therefore GRANTED. 19 3. Claims 4 & 5: EPA & CEPA 20 Jones-Jackson is the only plaintiff to allege claims 4 and 5 for violations of EPA 21 and CEPA. UPS argues that the claims (1) are time-barred and (2) fail on the merits. 22 a. Statute of Limitations 23 The parties agree that the statute of limitations is typically 2 years, but it extends to 24 three years for “willful” violations. The court assumes without deciding that plaintiff has 25 established a factual dispute with respect to whether UPS’s conduct was willful, such that 26 the three-year statute of limitations applies. The court further assumes without deciding 27 that UPS has not met its burden to demonstrate that there is no dispute of material fact 1 run before plaintiffs filed their complaint. 2 b. Merits on Summary Judgment 3 The elements of an equal pay claim under the EPA and CEPA are identical, and 4 courts use the same analysis for both statutes. First, “the plaintiff has the burden of 5 establishing a prima facie case of discrimination by showing that employees of the 6 opposite sex were paid different wages for equal work.” Stanley v. Univ. of S. California, 7 178 F.3d 1069, 1073–74 (9th Cir. 1999). To do this, the plaintiff must demonstrate that 8 the compared jobs are “substantially equal.” Id. at 1074. Under the “substantially equal” 9 analysis, the court looks to: (1) whether the jobs share a “common core of tasks”; and 10 (2) whether any additional tasks make the jobs “substantially different”. Id. Second, “[a] 11 defendant may rebut a prima facie case by showing that the disparity in pay is a 12 ‘differential based on any . . . factor other than sex.’” Id. at 1075 (quoting 29 U.S.C. 13 § 206(d)(1)); see 29 U.S.C. § 206(d)(1) (e.g., payments “made pursuant to (i) a seniority 14 system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality 15 of production; or (iv) a differential based on any other factor other than sex”). 16 First, the court considers whether plaintiff has established a prima facie case by 17 demonstrating that the compared jobs are “substantially equal.” Plaintiff argues that the 18 court should stay the summary judgment motion and allow plaintiff to conduct additional 19 discovery because she believes information from the DLSE may contain information 20 relevant to this question. In her request for more discovery, she admits that she “thinks 21 that she has enough evidence to demonstrate that she was paid less than Smith, she is 22 missing the ‘what and why’ of UPS’ decision making.” Opp. at 12. She also argues that 23 by acknowledging her retro pay in 2019, UPS admitted to EPA and CEPA violations. 24 Opp. at 29. She argues that Smith, the male comparator, and Jones-Jackson have 25 worked alongside each other since 2000 and are one day apart in seniority, so there is no 26 valid reason why she was paid less than him. Id. 27 Jones-Jackson fails to establish a prima facie case of discrimination, as she has 1 she indicates that she and Smith began working at the same time, she does not establish 2 whether their jobs share a common core of tasks or whether any additional tasks made 3 the jobs substantially different. In fact, the only evidence comes from UPS and is not 4 disputed: Jones-Jackson was paid less than Smith because they had different job codes 5 based on their positions’ skill. See White Decl. ¶ 13 (Jones-Jackson’s job classification 6 was H345; Smith’s was H340, which is a “skilled” position that is paid more under the 7 CBA); Varlack Decl., Ex. 3 (same). 8 Jones-Jackson relies heavily on UPS agreeing to a retroactive pay raise to 9 establish her prima facie case. But UPS could have agreed to that for any number of 10 reasons, and it does not provide evidence that her and Smith’s jobs were “substantially 11 equal”. For example, even Jones-Jackson elsewhere argues that the payment was not 12 actually backpay, but must have been for something else because others received similar 13 payments at the same time. See Opp. at 11. 14 Second, UPS can overcome plaintiff’s prima facie case by showing a legitimate 15 reason for the pay difference. The same evidence satisfies UPS’s burden on this 16 element. Namely, the jobs required different skill levels and were categorized by the 17 CBA accordingly. 18 Jones-Jackson has failed to establish a prima facie case, and UPS has shown that 19 the payments were made pursuant to a differential based on a factor other than sex. 20 Accordingly, UPS’s motion for summary judgment with respect to Jones-Jackson’s fourth 21 and fifth claims pursuant to EPA and CEPA is GRANTED. 22 4. Claim 6: UCL 23 UPS argues that as the UCL claim is derivative of the above claims, it fails for the 24 same reasons as the underlying claims. Mot. at 38. Plaintiffs argue that (1) their UCL 25 claim is also based on conduct independent of their other claims; and (2) it also derives 26 from the above claims. Opp. at 30–34. UPS argues that (1) plaintiffs abandoned the 27 derivate UCL claim (Reply at 16) and (2) plaintiffs cannot amend their UCL claim and 1 judgment (Reply at 28–29). 2 a. Whether Plaintiffs Can Amend Their Claim in an Opposition to 3 Summary Judgment 4 The court first considers whether plaintiffs have alleged a UCL claim based on 5 conduct independent of their other claims. The SAC pleads a UCL claim with the 6 following paragraphs: “On Behalf of Class Representatives and all Putative Class 7 Members, Plaintiffs reallege and incorporate each and every allegation in this Complaint” 8 (SAC ¶ 377); “UPS’ willful failure to pay women equally, to promote women equally, and 9 otherwise to offer women equal employment opportunities as alleged above, constitutes 10 unlawful, unfair and/or fraudulent activity prohibited by California Business and 11 Professions Code § 17200” (Id. ¶ 379 (emphasis added)). In their opposition to UPS’s 12 motion to dismiss the SAC, plaintiffs explained that “Plaintiffs’ claim for violation of the 13 Unfair Competition Law (“UCL”), Cal. Business and Professions Code § 17200, et seq. 14 succeeds because Plaintiffs’ derivative claims succeed.” Dkt. 43 at 20. They argued that 15 “the SAC demonstrates the adverse employment actions that Plaintiffs experienced in 16 violation of law, and they submit that this shows a § 17200 violation.” Id. at 21. The 17 court’s order on UPS’s motion to dismiss the SAC agreed with plaintiffs’ opposition on 18 this point, ruling that because “plaintiffs state plausible violations of employment 19 discrimination and equal pay laws[,] . . . . [t]herefore, plaintiffs also state a plausible UCL 20 claim based on those surviving claims.” MTD Order at 24–25 (emphasis added). 21 Plaintiffs argue (with very sparse citations to the record) that their UCL claim is 22 now based on entirely different facts that have not been exhausted and are largely 23 absent from the complaint. Jones-Jackson argues that UPS employees were “messing 24 up her time card” in 2022, 2023, and 2024—well after this action originated. Opp. at 31– 25 32. This is followed by general complaints that Jones-Jackson might not have gotten 26 paid on certain days, or that punch-in/punch-out times were incorrect. Opp. at 32–34. 27 In short, plaintiffs try to amend their complaint in their brief opposing summary 1 comprehensible record citations. But plaintiffs cannot now amend their UCL claim in their 2 opposition to UPS’s motion for summary judgment to allege new conduct, revise the 3 basis for the UCL claim, and sidestep the court’s previous order. See, e.g., Wasco Prod., 4 Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (“summary judgment is 5 not a procedural second chance to flesh out inadequate pleadings”). 6 As separate matter, even if this new claim were somehow permissible, plaintiffs 7 would fail to adequately present it. The section of the brief arguing for a new basis for 8 their UCL claim is devoid of any understandable citations to the record, making this 9 simply attorney argument without any comprehensible factual basis. For example, entire 10 paragraphs of argument pass without a single record citation, and then plaintiffs include 11 an entirely incomprehensible cite to “pgs. 1, 3, 4, 6”. See, e.g., Opp. at 32:12. There is 12 no indication at all as to what document is being cited to, or what contentions those 13 citations are meant to support. 14 b. UCL Claim Derivative of Other Claims 15 UPS argues that plaintiffs abandoned their UCL claim to the extent it is derivative 16 of their other claims. Reply at 16. But that isn’t the case. Plaintiffs argued that “[t]he 17 UCL claim does not solely derive from the aforementioned discrimination claims and has 18 a separate legal basis.” Opp. at 30 (emphasis added). 19 However, because defendant’s motion for summary judgment is granted as to 20 each of plaintiffs’ claims underlying their UCL claim, the derivate UCL claim cannot 21 survive. UPS’s motion for summary judgment with respect to plaintiffs’ sixth claim for 22 violations of the UCL is therefore GRANTED.16 23 5. Evidentiary Objections 24 a. Plaintiffs’ Objections 25

27 16 Because defendant’s motion for summary judgment is granted as to each of plaintiffs’ 1 Plaintiffs object to the declarations of Angel Dunn, Jenn Svanfeldt, Ricardo 2 Moreno and Anthony White. On May 16, 2024, plaintiffs filed additional objections to a 3 declaration UPS filed accompanying its reply brief. Dkt. 75. 4 i. Dunn 5 Plaintiffs object “as to competence”, arguing that Dunn is confused about the facts. 6 That is not grounds for objection, and it is DENIED. 7 Plaintiffs object to a statement about a program at UPS based on foundation or 8 personal knowledge. Plaintiffs acknowledge that Dunn lays a foundation based on 9 personal knowledge and a review of documents, but they argue that her claims of 10 personal knowledge “lack direct evidence or external verification”. But foundation doesn’t 11 require external verification. The objection is DENIED. 12 Plaintiffs object to various pages of the declaration on hearsay grounds. They do 13 not identify the objected-to paragraphs, however. Rather, they refer to entire pages— 14 including page 8, even though there are only 7 pages in the document. Accordingly, the 15 court cannot identify the objected-to content, so the objection is DENIED. 16 Plaintiffs present a “general objection” because there are arguments and opinions 17 in the declaration. “General objection” is not a valid evidentiary objection, so the 18 objection is DENIED. Furthermore, the objection appears to be to content like the 19 declarant’s work history and knowledge of harassment policies—all things relevant to 20 establishing foundation and personal knowledge for other testimony. 21 ii. Svanfeldt 22 Plaintiffs object to the following exhibits to the Svanfeldt declaration for various 23 reasons: 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 & 27. These objections simply 24 provide a list of exhibits and blanket objections that are not specific to each exhibit. 25 Accordingly, the court cannot identify the objected-to content or the specific reason for 26 the objection, so the objection is DENIED. 27 If the court were to attempt to parse the objections, plaintiffs’ hearsay objection 1 exceptions. For example, Exhibit 27 is not a business record as it is Goins’s Facebook 2 post, but it is a party admission. However, plaintiffs object to some letters authored by 3 UPS that are properly excluded as hearsay, and those objections are GRANTED. 4 Plaintiffs’ authenticity objection fails because most of the exhibits were 5 authenticated at depositions, and plaintiffs fail to identify with particularity which were not. 6 iii. Moreno 7 Plaintiffs object “as to competence”, arguing that Moreno is confused about the 8 facts. That is not grounds for objection, and the objection is DENIED. 9 Plaintiffs object to a statement about a program at UPS based on foundation or 10 personal knowledge. Plaintiffs acknowledge that Moreno lays a foundation based on 11 personal knowledge and review of documents, but argues that his claims of personal 12 knowledge “lack direct evidence or external verification”. But foundation can be 13 established by the witness; it doesn’t require external verification. Accordingly, the 14 objection is DENIED. 15 Plaintiffs object on hearsay grounds but fail to identify the objected-to paragraphs. 16 Accordingly, the court cannot identify the objected-to content, so the objection is 17 DENIED. Even if the court were to attempt to parse the objected-to content, most of the 18 hearsay objections are to statements plaintiffs made, which are party admissions. 19 However, ¶ 27 contains statements concerning UPS employee Penn describing technical 20 difficulties with an OJS that are properly excluded as hearsay, and plaintiffs’ objections 21 are GRANTED as to those statements. 22 Plaintiffs object to Exhibit 9 on authenticity grounds, but it is authenticated, so that 23 objection is DENIED. 24 Plaintiffs offer a “general objection” because there are arguments and opinions in 25 the declaration. “General objection” is not a valid evidentiary objection, so the objection 26 is DENIED. Furthermore, the objection is to content like the declarant’s work history and 27 knowledge of harassment policies—all things relevant to establishing foundation and 1 iv. White 2 Once again, it looks like plaintiffs have left in the brief placeholder citations for the 3 paragraphs they wished to object to. But they failed to fill in the list before filing, so the 4 objections are to entire pages. They object to pages 2–5, but there are only 4 pages. 5 Concerning the hearsay objection, the court cannot discern what content is being 6 objected to, so the objection is DENIED. Plaintiffs fail to explain the basis of their 7 foundation objection, and the court cannot discern what might be objectionable—the 8 declarant is describing policies at UPS based on personal knowledge and a review of 9 business records. Plaintiffs also object to Exhibits 21 and 22 on authenticity grounds, but 10 White authenticated those exhibits. Accordingly, those objections are DENIED. 11 v. Objections to the Reply 12 Plaintiffs also object to exhibits UPS filed with its reply brief at Dkt. 73. 13 They object to Exhibit 29, which contains excerpts from the deposition of Michael 14 Salas, on the ground that this is a new “argument” raised for the first time on reply. But 15 the exhibit contains excerpts from a deposition that plaintiffs also submitted in a 16 declaration. This is not a new “argument”; this is a document. And it is permitted under 17 Fed. R. Evid. 106, the Rule of Completeness, given that plaintiffs submitted excerpts of 18 the document. The objection is DENIED. 19 Plaintiffs object to Exhibits 30 (excerpts from the deposition of Anthony White) and 20 31 (excerpts from the deposition of Galena Goins). The objections are DENIED for the 21 same reasons as Exhibit 29. 22 The parties dispute the authenticity and accuracy of Exhibit 4 to the Varlack 23 declaration. The document is irrelevant to this court’s order and the objection is therefore 24 DENIED AS MOOT. 25 Finally, plaintiffs offer evidentiary objections to sentences in UPS’s reply brief. But 26 argument in a brief is not evidence, and is not subject to evidentiary objections. That 27 objection is DENIED. 1 To the extent defendant offers meritorious objections, the court nevertheless has 2 considered the objected-to materials when assessing its motion for summary judgment. 3 For example, UPS argues that the plaintiffs’ and Varlack’s declarations were all 4 filed one day late and should be stricken. Also, UPS argues the plaintiffs’ declarations 5 should be stricken because they were not signed, nor do they include the attestation 6 required under Civil Local Rule 5-1(i)(3). These are both independently-adequate 7 reasons to strike each of the declarations. However, the court nevertheless considered 8 those declarations for the purposes of this order. 9 CONCLUSION 10 For the foregoing reasons, defendant’s motion for summary judgment is 11 GRANTED. Plaintiffs’ Rule 56(d) motion is DENIED. The pretrial conference and trial 12 dates are VACATED. 13 IT IS SO ORDERED. 14 Dated: July 8, 2024 15 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 16 United States District Judge

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