Shufen Ma v. San Francisco Estuary Institute

• Court: District Court, N.D. California
• Decided: February 11, 2026
• Docket: 3:23-cv-05060
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SHUFEN MA, 7 Case No. 23-cv-05060-JCS Plaintiff, 8 ORDER RE MOTION FOR SUMMARY v. JUDGMENT, MOTION FOR 9 SANCTIONS AND SEALING SAN FRANCISCO ESTUARY MOTIONS 10 INSTITUTE, Re: Dkt. Nos. 75, 79, 80, 82, 89, 98, 99, 11 Defendant. 106, 108, 112

13 I. INTRODUCTION 14 Plaintiff Shufen Ma brought this action asserting employment discrimination claims 15 against the San Francisco Estuary Institute (“SFEI”) based on its failure to hire her as an 16 environmental scientist over a period of several years. The sole remaining claims in the case are 17 for age, national origin and race discrimination pursuant to Title VII of the Civil Rights Act of 18 1964 and the Age Discrimination in Employment Act (“ADEA”) related to Defendant’s failure to 19 hire her for the environmental scientist position for which she applied on October 13, 2021. 20 Presently before the Court are SFEI’s Motion for Summary Judgment, or in the Alternative, 21 Partial Summary Judgment (“Summary Judgment Motion”), SFEI’s Motion for Sanctions 22 Pursuant to FRCP 37 in the Amount of $3,500 (“Sanctions Motion”) and multiple sealing motions. 23 The Court finds that the motions are suitable for determination without oral argument and 24 therefore vacates the motion hearing set for February 18, 2026 pursuant to Civil Local Rule 7- 25 1(b). For the reasons stated below, the Court GRANTS SFEI’s Summary Judgment Motion in 26 full. Therefore, the Court vacates the Case Management Conference set for February 18, 2026 and 27 1 instructs the Clerk to enter judgment in favor of SFEI and close the case.1 The Court’s rulings are 2 set forth below. 3 II. SEALING MOTIONS 4 A. Legal Standards 5 The pending administrative motions to file under seal (“sealing motions”) relate to both 6 dispositive motions and non-dispositive motions. The threshold for sealing documents filed in 7 connection with dispositive motions is higher than it is for those associated with non-dispositive 8 motions. In particular, for dispositive motions, there is a “strong presumption” in favor of public 9 access that can be overcome only for “compelling reasons” supported by specific factual findings 10 that “outweigh the general history of access and the public policies favoring disclosure.” 11 Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178–79 (9th Cir. 2006) (citing Foltz v. 12 State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003) (cleaned up)). “In general, 13 ‘compelling reasons’ sufficient to outweigh the public’s interest in disclosure and justify sealing 14 court records exist when such ‘court files might have become a vehicle for improper purposes,’ 15 such as the use of records to gratify private spite, promote public scandal, circulate libelous 16 statements, or release trade secrets.” Id. (citing Nixon v. Warner Commc'ns, Inc., 435 U.S. 589 17 (1978)). 18 On the other hand, where a request to seal documents relates to non-dispositive motions, 19 courts may apply a “good cause” standard to sealing requests. In re Midland Nat. Life Ins. Co. 20 Annuity Sales Pracs. Litig., 686 F.3d 1115, 1119 (9th Cir. 2012); In re Seagate Tech. LLC, 326 21 F.R.D. 223, 246 (N.D. Cal. 2018) (recognizing good cause standard for non-dispositive motions 22 but finding that the higher “compelling interest” standard applied because motion at issue in that 23 case was “effectively” dispositive); Dugan v. Lloyds TSB Bank, PLC, No. 12-CV-02549-WHA 24 NJV, 2013 WL 1435223, at *1 (N.D. Cal. Apr. 9, 2013) (“On non-dispositive motions, a party 25 seeking to file under seal a document produced under seal in discovery only must establish there is 26 ‘good cause’ for sealing the record.”). The good cause standard can be met with a “particularized 27 1 showing” that there is good cause to seal the material. In re Midland Nat. Life Ins. Co. Annuity 2 Sales Pracs. Litig., 686 F.3d at 1119. 3 B. Docket Nos. 75 and 79 4 In docket no. 75, Plaintiff asks the Court to seal documents designated as confidential by 5 SFEI that she filed in support of her Motion to Compel Phone Records. The proposed order 6 supplied by Plaintiff does not specifically identify the material to be sealed, as required by the 7 Local Rules, but the Court understands this motion to apply to some portions of Exhibits D, E and 8 F to Ma’s supporting declaration, dkt. no. 75-1. The exhibits attached to Ma’s declaration appear 9 to redact only names and email addresses but Plaintiff did not attach the unredacted exhibits so 10 this cannot be confirmed. Furthermore, Ma’s declaration describes the material to be sealed more 11 broadly. See dkt. no.75-1 at ECF p. 2. Thus, it is not entirely clear from the motion the specific 12 material Plaintiff is asking the Court to seal. For this reason, this motion is DENIED. 13 Rather than responding to Plaintiff’s motion, as required under Rule 79-5(f)(3), SFEI filed 14 its own sealing motion. See dkt. no. 79. In it, SFEI asked the Court to seal portions of exhibits D, 15 E, and F to the Ma Declaration (the same exhibits that were the subject of Ma’s motion in docket 16 no. 75). It is not clear whether SFEI found Ma’s redactions of these documents in support of 17 docket no. 75 to be sufficient. SFEI asked that the Court allow the following material to remain 18 under seal: 19 • Exhibit D: Any reference to Dan’s personal email address and last name and Lisa 20 Hunt’s mobile phone number. 21 • Exhibit E: Any reference to Dan’s personal email address and last name and Lisa 22 Hunt’s mobile phone number. 23 • Exhibit F: Any reference to Tyler’s last name and compensation 24 Dkt. no. 79 at ECF p. 2. As these documents were filed in support of a non-dispositive motion, 25 the Court applies the good cause standard discussed above to this motion. Based on the privacy 26 interests of Dan and Lisa Hunt the Court finds that there is good cause to seal this material. 27 Therefore, the Court GRANTS this motion. It is Plaintiff’s responsibility to file docket no. 75- 1 shall remain under seal. 2 C. Docket Nos. 80 and 82 3 Docket nos. 80 and 82 follow the same pattern. In docket no. 80, Plaintiff filed a motion to 4 seal in connection with her Motion to Compel Production of Communications Regarding Lisa 5 Hunt's Hiring based on SFEI’s confidentiality designations. In docket no. 82, SFEI filed a 6 counter-motion instead of a response to Plaintiff’s motion. Plaintiff’s motion is extremely broad, 7 apparently asking the Court to seal the entire motion and all supporting evidence pending SFEI’s 8 response rather than providing documents that redact only the material that was designated as 9 confidential. Therefore, that motion is DENIED. 10 SFEI’s sealing motion (docket no. 82) asks the Court to seal portions of Exhibits E, F, and 11 G to the Ma Declaration in support of docket no. 80, namely: 12 • Exhibit E: Any reference to Lindsay’s last name and Lisa Hunt’s cell phone 13 number. 14 • Exhibit F: Any reference to Lindsay’s last name and David Senn’s cell phone 15 number. 16 • Exhibit G: Any reference to Lindsay’s last name. 17 Dkt. no. 82 at ECF p. 2. 2 The Court applies the good cause standard because this material was 18 offered in connection with a non-dispositive motion. The Court further finds that this standard is 19 met based on the privacy interests of the named individuals. Accordingly, the Court GRANTS 20 this motion. It is Plaintiff’s responsibility to refile docket no. 80-1, redacted consistent with 21 this Order, in the public record. In the meantime, that document shall remain under seal. 22 D. Docket No. 89 23 In docket no. 89, SFEI brings a motion to seal parts of Ex. D to Ma’s Reply on her motion 24 to compel production of communications related to Lisa Hunt. In particular, it asks the Court to 25

26 2 In SFEI’s motion, it describes in narrative form the material it seeks to have sealed in Exhibits E, F. and G, followed by a summary that describes the material that should remain under seal in these 27 exhibits. The summary, however, refers to “Exhibit E . . . . ; Exhibit E . . . ;[and] Exhibit F.” Dkt. 1 seal portions of the exhibit that were designated as confidential and that include personal 2 information of other applicants. Plaintiff filed her reply brief and supporting exhibits (docket no. 3 88) in the public record after the Court had denied her motion; the Court limited access to the 4 documents after SFEI filed its sealing motion. The Court finds that there is good cause to seal 5 this material based on the privacy interests of the individuals named in these materials and 6 therefore this motion is GRANTED. It is Plaintiff’s responsibility to refile a redacted version 7 of docket no. 88 consistent with this Order. In the meantime, the Court will maintain docket 8 no. 88 under seal. 9 E. Docket No. 98 10 In docket no. 98, SFEI asks the Court to seal portions of exhibits offered in support of its 11 summary judgment motion on the basis of the privacy interests of non-parties whose personal 12 information is disclosed in the documents. Because this material was submitted in connection with 13 a dispositive motion, the compelling interest standard applies. The material SFEI seeks to seal in 14 this motion includes personal information of non-litigants and candid evaluations of other 15 applicants’ qualifications for the position Plaintiff sought. The Court finds that its disclosure 16 would violate the privacy interests of these individuals . Furthermore, the Court finds that while 17 there is a public interest in certain general information about the qualifications of the candidates 18 SFEI considered, the material SFEI seeks to seal relating to these individuals has little or no 19 bearing on the Court’s rulings on summary judgment and therefore, that the reasons for the 20 Court’s rulings can be understood by the public even without access to this specific private 21 information. Therefore, the Court finds that there is a compelling interest in maintaining the 22 confidentiality of this material. However, the proposed order supplied by SFEI does not “list[ ] in 23 table format each document or portion thereof that is sought to be sealed.” Civ. L.R. 79-5(c)(3). 24 Therefore, this motion is DENIED without prejudice. SFEI is instructed to refile the motion with 25 a proposed order that complies with Civil Local Rule 79-5. In the meantime, these documents will 26 remain under seal. 27 F. Docket Nos. 108 and 112 1 support of her opposition to SFEI’s summary judgment motion, originally filed in the public 2 record as dkt. no. 103,3 in response to the Court’s October 16, 2025 Order, dkt. no. 107. Plaintiff 3 complied with the Court’s instructions with respect to how her sealing motion should be filed, 4 including providing a list in table format of the material sought to be sealed. As Plaintiff seeks to 5 seal only the last names of non-party job applicants who have a privacy interest in information 6 related to their applications for employment with SFEI, the Court finds that there is a compelling 7 interest that justifies sealing the material identified in this motion for the reasons discussed above. 8 Therefore, this motion is GRANTED. 9 In docket no. 112, SFEI brings a motion to seal last names and other personal information 10 of non-party job applicants in Plaintiff’s summary judgment opposition and exhibits that Plaintiff 11 failed to redact and did not seek to seal in docket no. 108. SFEI provides a detailed proposed 12 order in compliance with Civil Local Rule 79-5(c)(3). The Court finds that there is a compelling 13 interest that justifies sealing the material identified in this motion for the reasons discussed above. 14 Therefore, this motion is GRANTED. It is Plaintiff’s responsibility to refile a redacted version 15 of docket no. 103 consistent with this Order, that is, redacting all of the confidential material 16 identified in docket nos. 108 and 112. In the meantime, the Court will maintain docket no. 103 17 under seal. 18 III. SANCTIONS MOTION 19 SFEI asks the Court to award sanctions in the amount of $3,500 pursuant to Rule 37 of the 20 Federal Rules of Civil Procedure based on Plaintiff’s filing in the public record of material 21 designated as confidential by SFEI, without following the procedures set forth in the stipulated 22 protective order in this case (docket no. 51). The Court GRANTS in part the Sanctions Motion. 23 Rule 37 “grants courts the authority to impose sanctions where a party has violated a 24 discovery order, including a protective order issued pursuant to Rule 26(f).” Life Tech. Corp. v. 25 Biosearch Tech., Inc., No. C-12-00852 WHA (JCS), 2012 WL 1600393, at *8 (N.D. Cal. May 7, 26 2012). The violation need not be willful, unless the sanction is dismissal; even a negligent 27 1 violation may warrant the imposition of sanctions. Lew v. Kona Hosp., 754 F.2d 1420, 1426-27 2 (9th Cir. 1985). Whether to impose sanctions is “left to the sound discretion of the trial judge.” 3 Von Brimer v. Whirlpool Corp., 536 F.2d 838, 844 (9th Cir. 1976). 4 Plaintiff’s summary judgment opposition brief, supporting declaration and exhibits contain 5 a great deal of material designated as confidential by SFEI, including the last names and email 6 addresses of non-party job candidates, the impressions of SFEI interviewers about the candidates, 7 and salary information. See generally dkt. no. 103. Plaintiff filed all of her Opposition papers in 8 the public record, notwithstanding the clear prohibition on doing so in Section 12.3 of the 9 Stipulated Protective Order, stating that “[w]ithout written permission from the Designating Party 10 or a court order secured after appropriate notice to all interested persons, a Party may not file in 11 the public record in this action any Protected Material.” Docket no. 51 at ECF pp. 10-11. This 12 section goes on to make clear that where a party files material designated as confidential by the 13 other side they must comply with Civil Local Rule 79-5. 14 Plaintiff claims that she “acted in good faith as a pro se litigant confused about complex 15 sealing requirements” and asserts she should not be subject to monetary sanctions because “she 16 immediately took corrective action when the Court clarified the requirements” and SFEI suffered 17 no prejudice. Dkt. no. 115 at ECF p. 2. She further blames SFEI for causing confusion by 18 “designating virtually every discovery document as ‘Confidential.’” Id. However, she does not 19 dispute that SFEI’s counsel contacted her before filing the Sanctions Motion and asked her to 20 withdraw and refile the improper filing. See dkt. no. 106-2 (Cardenas Decl.) ¶ 4 & Ex. B. Nor 21 does she offer any explanation for failing to respond to that communication or refile her 22 Opposition papers properly. 23 Although Plaintiff is proceeding pro se, she has previously filed sealing motions pursuant 24 to Civil Local Rule 79-5, see dkt. nos. 54, 80, indicating that she understands that confidential 25 materials are subject to that rule. At the same time, this is not the first occasion upon which she 26 has filed material designated as confidential in the public record. In particular, Plaintiff previously 27 filed in the public record a document that was designated as confidential in support of a reply brief 1 motion. See dkt. no. 92-1 at ECF pp. 3-4. Although the Court did not award sanctions on that 2 occasion, it cautioned Plaintiff that it expected her “to comply with the Court’s standing orders, 3 the Civil Local Rules of this Court and the Federal Rules of Civil Procedure.” Dkt. no. 97. 4 In sum, the Court concludes that Plaintiff’s filing in the public record of material 5 designated by SFEI as confidential without following the procedures set forth in the Protective 6 Order or Civil Local Rule 79-5 was a flagrant and deliberate violation of the Protective Order. 7 Furthermore, her failure to respond to SFEI’s demand that she withdraw and refile the material in 8 compliance with the Protective Order and Rule 79-5 necessitated SFEI’s Sanctions Motion. 9 Therefore, the Court finds that an award of fees to compensate SFEI for the time spent addressing 10 Plaintiff’s discovery misconduct is warranted. See Evon v. L. Offs. of Sidney Mickell, 688 F.3d 11 1015, 1035 (9th Cir. 2012) (finding award of attorney’s fees to be an appropriate sanction for 12 deliberate failure to abide by protective order where defendant filed documents designated as 13 confidential in the public record without sealing or redacting them). 14 SFEI’s counsel has supplied a declaration stating that her hourly rate is $300/hour and that 15 she spent 5 hours drafting the motion and supporting documents; in addition she anticipated 16 spending 1 hour to review Plaintiff’s opposition, 4.5 hours drafting a reply and .6 hours attending 17 a motion hearing. The Court finds these times and rates to be reasonable except that it finds that 18 the time estimated for the reply brief is somewhat high – the Court finds 3 hours to be a 19 reasonable amount of time to review Plaintiff’s Opposition and draft a reply brief – and also 20 reduces the amount of the sanction to take into account the fact that the Sanctions Motion was 21 decided without a hearing.4 Accordingly, the Court awards $2,400 in attorneys’ fees as a sanction 22 4 The Court notes that Cardenas states in her declaration: 23

I have spent 5 hour[s] so far drafting this motion and supporting documents and have 24 therefore incurred $1,500 in attorney’s fees to date. I suspect that I will incur an additional $2,000 (6.6 hours) in reviewing Plaintiff’s Opposition (1), drafting a Reply brief (4.5), and 25 attending any hearing (.6). Accordingly, I suspect my total attorney’s fees incurred will be $3,500. 26

Cardenas Decl. ¶ 6. There appear to be two computational errors in this statement. First, the time 27 Cardenas anticipated spending reviewing the Opposition, drafting a Reply and attending a hearing 1 for Plaintiff’s discovery misconduct. 2 IV. SUMMARY JUDGMENT MOTION 3 G. BACKGROUND 4 1. Factual Background5 5 Plaintiff Shufen Ma holds a Ph.D. in Oceanography from the University of Delaware. She 6 describes her “fundamental research interests” as being “in the field of aquatic biogeochemistry.” 7 Declaration of Shufen Ma, dkt. no. 108-2 (“Ma Decl.”) ¶ 2. According to Ma, she has “obtained 8 extensive experience in the development and application of voltammetric microelectrodes for the 9 investigation of biogeochemical processes in fresh water, estuarine, marine, hydrothermal vent, 10 and acid mine drainage biofilm systems.” Id. 11 On August 3, 2014, Ma sent an email to David Senn, who has been Program Director of 12 the Clean Water Program of Defendant SFEI since 2012, in which she inquired about employment 13 opportunities with SFEI and told Senn that she had “obtained extensive experience in the 14 development and application of in situ voltammetric microelectrodes for the investigation of 15 biogeochemical processes in fresh water, estuarine, marine, hydrothermal vent, and acid mine 16 drainage biofilm systems.” Declaration of David Senn in Support of Defendant’s Motion for 17 Summary Judgment or in the Alternative, Partial Summary Judgment, dkt. no. 99-5 (“Senn 18 Decl.”), Ex. B. Senn responded the same day, observing that Ma had “done some really 19 interesting work.” Id. He told her, however, that “[w]hile [her] experience would certainly allow 20 [her] to make substantial contributions, the bulk of [SFEI’s] monitoring work would be using 21 fairly basic/commercially-available sensor packages.” Id. 22 Ma met Senn in person in January 2015. Ma Decl. ¶ 20; Senn Decl. ¶ 10. According to 23 Ma, “[d]uring this meeting, [she] explained that bottom waters were where nutrients cycling 24 occurred and represented the critical zone for fish and benthic organisms” and she “recommended 25 deploying sensors near the sediment-water interface to understand nutrients dynamics.” Ma Decl. 26

27 Notwithstanding these computational errors, the Court presumes that the underlying time 1 ¶ 20. Senn states that Ma showed up at his office without an appointment and that he “met with 2 her to discuss SFEI and what SFEI was looking for in candidates for a position [it] had recently 3 posted.” Senn Decl. ¶ 20. He states that he “told Plaintiff during this in-person meeting that 4 [SFEI was] specifically seeking candidates who were proficient in R Programming Language or 5 Matlab and [that he] recall[s] Plaintiff telling [him] that she did not have a lot of experience in 6 either during [their] discussion.” Id. 7 On March 3, 2016, Ma sent Senn “a detailed email proposing a research study to 8 investigate nitrogen and phosphorus cycling at the oxic/anoxic interface.” Ma Decl. ¶ 21 & Ex. B. 9 Ma contends Senn “subsequently implemented the exact research projects [she] had recommended 10 [to Senn], but hired other personnel to do the work.” Id. ¶ 22. 11 On September 10, 2021, SFEI posted a job announcement for an Environmental Scientist 12 position. Declaration of Lisa Hunt in Support of Defendant’s Motion for Summary Judgment, or 13 in the Alternative, Partial Summary Judgment, dkt. no. 99-7 (“Hunt Decl.”), ¶ 6 & Ex. C (job 14 announcement).6 The announcement stated that the “major focus” of the position would be on 15 “the analysis and interpretation of large, rich datasets (e.g., multi-year high-frequency mooring 16 datasets; multi-decade monitoring program data) to gain mechanistic insights into ecosystem 17 dynamics and/or to characterize status and trends in water quality indicators.” Id. 18 Lisa Hunt, who worked as a Program Manager/Senior Scientist for the San Francisco Bay 19 Nutrient Management Strategy Project at SFEI between March 2021 and March 2022, 20 “spearheaded hiring” for the Environmental Scientist position and was to be the direct supervisor 21 of the individual hired for the position. Id. ¶ 2. She states that she helped create the job 22 announcement for the position with the help of SFEI’s David Senn, Derek Roberts, Kristin Art, 23 and Ariella Chelsky. Id. ¶ 2. 24 6The job announcement explained that SFEI’s Nutrient Management Strategy team was 25 “recruiting for two closely-related positions” and that the positions were being advertised “in parallel” with the aim of “hir[ing] two outstanding individuals whose experience, skills, and 26 scientific backgrounds [would] best augment and/or deepen the NMS’ capacity within its technical focus areas.” Id. Plaintiff applied for the Environmental Scientist position rather than the 27 Associate Environmental Scientist Position, as did the other applicants discussed herein. As that 1 According to Hunt, the job announcement “listed the skillsets [Hunt] was looking for in 2 hiring someone for the position[,]” listing the following “[d]esired [q]ualifications”: 3 Master’s degree plus at least 7 years of experience or PhD (post-PhD experience desirable but not required). Relevant fields include 4 environmental engineering, environmental science, oceanography, or another related scientific field. 5 Strong quantitative background and data analysis skills using data 6 analysis or statistical software (e.g., Python, R, Matlab).

7 Experience applying those skills to interpret large datasets (high- frequency and/or multi-decade monitoring data) related to water 8 quality

9 Experience in biogeochemistry, hydrodynamics/physical oceanography, environmental chemistry biogeochemistry, and/or 10 environmental science, including field work and report writing.

11 Strong communication, presentation and writing skills and ability to synthesize information. 12 Ability to work well in teams as well as work independently. 13 14 Hunt Decl., Ex. C (job announcement). The announcement further stated that the candidate should 15 have “experience or expertise in some of the following areas”: 16 Experience with oceanographic instrumentation (e.g. CTD, ADCP, etc.), including deployment planning, calibration, and maintenance. 17 Proficiency in statistical methods especially with respect to analyzing 18 large data sets of high frequency time series data.

19 Data visualization experience and skills.

20 Experience with data management, quality assurance, and post- processing. 21 Understanding of marine/estuarine biogeochemistry, hydrodynamics, 22 ecology, and/or chemistry.

23 Experience with technical project management, organizational skills, and ability to manage multiple projects at once and meet deadlines. 24 Strong meeting facilitation skills and/or experience presenting to/engaging with stakeholder groups. 25 26 Id. Finally, it described the following “typical” duties for the position: 27 Design observational and experimental studies to inform scientific and management questions and provide data needed for models, 1 Analyze datasets using statistical software and open source code (e.g., Python, R suite). 2 Synthesize data from multiple lines of evidence, including both 3 observational and modeling studies, to address key nutrient management issues and develop recommendations for mitigating 4 impacts.

5 Write technical reports, journal articles, memoranda, and proposals. Depending on experience and interest, lead various types of field 6 work using standard and innovative techniques, including instrument calibration and maintenance. 7 Lead projects involving internal staff and external partners. 8 Oversee and provide technical direction on verification/validation 9 (QA/QC) of data.

10 Develop presentations and/or posters for stakeholder meetings, public meetings and scientific conferences. 11 12 Id. 13 On September 9, 2021, Hunt asked Biruk Imagnu, a Technical Support Manager at SFEI, 14 to assist in setting up “an application link and landing page for the Environmental Scientist 15 position.” Declaration of Biruk Imagnu in Support of Defendant’s Motion For Summary 16 Judgment or in the Alternative, Partial Summary Judgment, dkt. no. 99-4 (“Imagnu Decl.”), ¶ 2; 17 Hunt Decl., ¶ 3. In an email she sent to Imagnu on that date, Hunt stated: 18 For the application questionnaire . . . . for the skills section include the following: 19 Please rate your level of experience and proficiency with each of the 20 following:

21 • R Programming Language • Python 22 • Matlab • Statistical analysis with high frequency/time series data sets 23 • Water quality data analysis.

24 Each of the above should include the following answer options:

25 • Beginner • Intermediate 26 • Advanced • No experience. 27 1 Hunt states in her declaration that she “was looking to hire someone with at least 2 intermediate-level (if not advance) proficiency and experience in at least one of the three 3 programming languages (R Programming Language, Python, Matlab), as SFEI’s employees used 4 these programming languages in data analysis and modeling in 2021.” Id. ¶ 5. She explained: 5 I thought that if a candidate had already mastered one programming language, then, they could more easily master the use of the other two 6 programming languages. I was not looking to hire someone who had only beginner proficiency and experience or no experience at all in all 7 three programming languages as I believed it would take that person a long time to learn how to code in those three programming 8 languages. As a result, it would make it much more difficult for that person to be a valuable contributor at SFEI and efficiently learn and 9 perform their job duties in the Environmental Scientist position, which I would be directly supervising. 10 11 Id. 12 Imagnu states that in setting up the online application for the position, he created “a 13 Smartsheet with columns for standard questions (name, email, phone number, highest level of 14 education, etc.) along with Lisa Hunt’s screening questionnaire which contained five questions, 15 and [he] added a file upload option for the applicant’s CVs and cover letters.” Imagnu Decl., ¶ 2. 16 According to Imagnu, he “used Smartsheet’s features to create a digital form which corresponded 17 to the various columns in the Smartsheet, so that applicants could fill out the application questions, 18 including the screening questionnaire and upload the cover letters and CVs on the landing page, 19 and it would auto populate on the Smartsheet.” Id. He “granted access to the Smartsheet to Lisa 20 Hunt, and whoever else Lisa Hunt asked that [he] provide access to within the hiring team.” Id. 21 Imagnu also created a link – which appeared only after the applicant “completed and 22 submitted the Smartsheet digital form on the application landing page (thereby submit[ing] their 23 application materials for the position) – to a survey regarding their demographic information. Id. 24 ¶ 3. Imagnu explains: 25 [This was] a separate, pre-existing Google survey which collected the data using Google forms, which was linked to a separate and pre- 26 existing Google spreadsheet, for the demographic information sought from the applicants. This information auto populated on this separate 27 Google spreadsheet (not the Smartsheet containing the applicant’s members of the administrative team and SFEI’s HR consultant. 1 2 Id. 3 The job announcement included a statement that SFEI is an Equal Opportunity employer, 4 stating: 5 SFEI is committed to building a culturally diverse staff, and we strongly encourage applications from women, people of color, and 6 other groups commonly under represented in environmental science.

7 San Francisco Estuary Institute is an Equal Opportunity /Affirmative Action employer and prohibits discrimination and harassment of any 8 kind. We are committed to the principle of equal employment opportunity, and to providing employees with a work environment 9 free of discrimination and harassment. All employment decisions are based on business needs, job requirements, and individual 10 qualifications. Qualified applicants will receive consideration for employment without regard to race, color, religion, sex, including 11 sexual orientation, gender identity or expression, national origin, physical or mental disability, family or parental status, protected 12 Veteran status, or any other characteristic protected by applicable federal, state, or local law. 13 14 Hunt Decl., Ex. C. 15 SFEI contends its “workforce is diverse[,]” offering evidence that “in 2021 (when Plaintiff 16 applied), 9 out of the 76 employees were Asian (11.8%), 40 out of the 76 employees were age 17 forty or older (52%), 26 out of the 76 employees were fifty years old or older (34%)[,] . . 12 out of 18 the 76 employees were sixty years old or older (15%)[,]” and three SFEI employees were “in their 19 seventies . . ., with the oldest employee being 73 years old.” ” Motion at 7 (citing Declaration of 20 Jen Trudeau in Support of Defendant’s Motion for Summary Judgment, or in the Alternative, 21 Partial Summary Judgment, dkt. no. 99-6 (“Trudeau Decl.”), ¶ 2 & Ex. A). This data was collected 22 by SFEI’s Managing Director, Jen Trudeau, as part of SFEI’s Equal Employment Opportunity 23 obligations arising from the fact that it “contracted with the federal government and was required 24 to submit annual EEO-1 data to the United States Equal Employment Opportunity Commission.” 25 Trudeau Decl., ¶ 2. 26 Ultimately, in December 2021, SFEI hired Dan7 for the Environmental Scientist position. 27 1 Hunt Decl. ¶ 57. SFEI also made an offer to Tyler but when Tyler declined the offer, SFEI 2 decided not to hire a second person for the position. Senn Decl. ¶ 8. Lisa Hunt conducted the 3 initial screening of the applications and worked with David Senn, Derek Roberts, Kristin Art, and 4 Ariella Chelsky to come up with a list of candidates for an initial screening interview to be 5 conducted by Hunt. Id. ¶¶ 35-36. On October 7, 2021 (before Plaintiff applied for the position), 6 Hunt sent an email to Senn, Roberts, Art and Chelsky reporting on the telephone screening 7 interviews she had conducted the previous week and seeking feedback as to which candidates 8 should be invited for first round of interviews. Id. Ex. P (October 7, 2021 email). 9 The six candidates who underwent screening interviews in this initial round were Sameen, 10 Adrienne, Nazanin, Tyler, Dan and Famina. Id. Among other things, Hunt asked all of these 11 candidates to “[d]escribe [their] training, experience and skills with data analysis, especially with 12 high frequency data sets. Include your proficiency with programming and stats tools.” Id., Ex. Q. 13 She noted in her October 7, 2021 email that “[a]ll 6 candidates seem[ed] to have reasonably strong 14 programming skills, but generally in R or Matlab rather than python.” Id., Ex. P; see also Ex. Q, 15 dkt. no. 98-6, ECF pp. 207-214 (Hunt screening interview notes). Likewise, the data on the 16 Smartsheet reflects that all six candidates rated themselves as Advanced or Intermediate in at least 17 one programming language in their responses to the application questionnaire. See Hunt Decl., 18 Ex. D (Smartsheet); see also Hunt Decl. ¶ 17 (“I selected only those candidates who rated their 19 experience as Advance or Intermediate in at least one programming language (R Programming 20 Language, Matlab, Python) in their screening questionnaire to advance to the screening interview 21 round.”). The same is true of two other applicants who applied on October 11, 2021 (Farnaz) and 22 October 22, 2021 (Lindsey) and participated in screening interviews. Id., Ex. D. 23 In her October 7, 2021 email, Hunt found that “[a]lthough all 6 of the candidates 24 appear[ed] to have strong quantitative skills as well as programming skills, only half of them 25 (Adrianne Tyler and Dan) appear[ed] to have the kind of statistical data analysis training and skills 26 that [Hunt thought was] needed if they [were] to take a lead role on some of [SFEI’s] data 27 synthesis projects.” Id., Ex. R. Hunt proposed that these three candidates be invited for a first- 1 screen applicants for the next couple of weeks.” Id. After reviewing feedback from colleagues, 2 Hunt sent an email on October 12, 2021 stating that she would schedule interviews with Adrienne, 3 Tyler and Dan. Id. Ex. S. 4 The next day, on October 13, 2021, Plaintiff filed her application for the Environmental 5 Scientist position. Id. ¶ 41 & Ex. D. According to Hunt, she reviewed Plaintiff’s cover letter and 6 CV on October 14, 2021, when she first saw the application, and “learned that Plaintiff had a PhD 7 in Oceanography but that her last postdoctoral research position ended in 2013 (approximately 8 8 years prior) and that she had been working as an adjunct professor at Berkeley City College since 9 2011.” Id. ¶ 41 & Ex. T. She notes that in Plaintiff’s CV and cover letter, there was no mention 10 of Plaintiff “having any experience with Matlab, R Programming Language or Python.” Id. The 11 Smartsheet reflects that Plaintiff rated herself as “Beginner” in all three programming languages 12 (Python, R and Matlab). Id. Ex. D. 13 According to Hunt, on October 14, 2021 she noted in the “con” column of the Smartsheet 14 as to Plaintiff’s application: “doesn’t appear to have the data analysis skills we are looking for, or 15 PM experience.” Id. Ex. U. In the “initial interview” column, Hunt wrote “no.” Id. An activity 16 log for the Smartsheet reflects that Hunt’s comment in the “con” column was added on October 17 14, 2021 and was deleted by David Senn when he accessed the Smartsheet on October 28, 2022, 18 long after the position had been filled. See generally Declaration of Tony Hale in Support of 19 Defendant’s Motion for Summary Judgment or in the Alternative, Partial Summary Judgment, 20 dkt. no. 99-8 (“Hale Decl.”); see also Hunt Decl. ¶ 43; Senn Decl. ¶ 11 & Ex. C. The Court has 21 already concluded that the deletion was inadvertent. See dkt. no. 87. The activity log also reflects 22 that October 28, 2022 was the first time Senn downloaded Plaintiff’s application materials. Hale 23 Decl.; Senn Decl., Ex. C. 24 Hunt states in her declaration that prior to reviewing Plaintiff’s application, she “had never 25 heard of Plaintiff.” Hunt Decl. ¶44. She states further: 26 I do not know Plaintiff and have never seen or met Plaintiff and do not have any specific recollection of her applying for the 27 Environmental Scientist position in October 2021. To the best of my 1 Id. Similarly, Senn states that he was “not involved in the decision on whether Plaintiff would 2 advance to the screening interview round.” Senn Decl. ¶¶ 4, 6. Nor was he even aware that Ma 3 had applied for the position in 2021, according to Senn. Id. ¶ 4. Senn states that “Lisa Hunt did 4 not alert [him] that Plaintiff had applied for the position” and he “never told Lisa Hunt anything 5 about Plaintiff during Lisa Hunt’s employment.” Id. Nor is there any evidence in the record that 6 Hunt consulted with anyone involved in hiring for the Environmental Scientist position in 7 connection with her decision not to advance Ma to the screening interview stage of the process. 8 According to Hunt, she also “did not know Plaintiff’s or the other applicants’ race, 9 national origin, or age when [she] was hiring for the Environmental Scientist position in 2021” 10 and “[i]f a candidate listed their date of graduation from undergraduate school or graduate school 11 on their CV or cover letter, [she] did not make assumptions about a person’s age as [she knew] 12 that not everyone starts undergraduate school at 18 years old.” Id. ¶ 45. 13 Hunt also states in her declaration that Ma’s data analysis software skills and her 14 experience with voltametric microelectrodes were not the “skillset” SFEI was looking for in 15 candidates for the Environmental Scientist position: 16 60. The fact that Plaintiff supposedly had experience with other software to perform data analysis did not make Plaintiff qualified for 17 the position as we were specifically seeking candidates who had at least intermediate if not advanced level proficiency and experience in 18 one of the three programming languages that SFEI already used (i.e., R Programming Language, Matlab, Python). 19 61. Similarly, the fact that Plaintiff supposedly had experience with 20 “cutting-edge voltametric microelectrodes,” was not important as we were not seeking candidates with that experience or skillset. Notably, 21 in 2021 and 2022, SFEI used basic/commercial-available sensor packages, which were far from the “cutting-edge voltametric 22 microelectrodes,” Plaintiff had experience using. 23 Hunt Decl. ¶¶ 60-61. 24 In the meantime, interviews by the hiring team of the leading candidates proceeded. Id. ¶¶ 25 48-57. Hunt and her colleagues conducted first-round interviews of Tyler, Lindsay, Dan, 26 Farnaz, and Adrianne. Id. ¶ 48 & Ex. X (interview notes). On October 19, 2021, Hunt emailed 27 the individuals who would be conducting the interviews to provide standardized questions that 1 opportunities to respond.” Id. Ex. W. She noted that two of the questions were “new ones [she] 2 created that [were] focused on data analysis.” Id. In a separate email, dated October 18, 2021, 3 she requested guidance from Jen Trueau about ‘questions [the interviewers] should NOT be asking 4 candidates. Things like ‘where are you from?’ or ‘do you have any kids?’ or other conversational 5 questions that are not job-related.” Id. Ex. V. Trudeau responded, “[y]ou have the right 6 sentiment. Avoid personal questions as you noted. Avoid questions about marital status, country 7 of origin, family status etc.” Id. 8 All five candidates were then advanced to a second round of interviews, in which each 9 candidate would give a presentation. Id. ¶ 50. However, Adrianne declined SFEI’s invitation for 10 a second-round interview, telling Hunt via email that she did not “think this position [was] a 11 perfect fit for [her] right now at this stage in [her] career.” Id. ¶ 51 & Ex. AA, dkt. no. 98-6 at 12 ECF p. 295. 13 On November 9, 2021, Hunt asked those who had conducted interviews of the four 14 candidates who returned for second-round interviews (Tyler, Dan, Lindsey and Farnaz) to 15 complete a survey describing their impressions of them. Id. Ex. BB (November 9, 2021 email). 16 She cautioned the recipients that “[t]he idea behind the survey is to get independent input from 17 everyone to avoid ‘group think’ so please don't look at other responses before completing 18 your survey.” Id. SFEI has offered the survey results as an exhibit. See id., Ex. CC. The survey 19 results reflect that multiple interviewers commented on Dan and Tyler’s strong data analysis skills 20 as “pros” in favor of hiring them. Id., dkt. no. 98-6 at ECF pp. 304-305. 21 Senn states in his declaration that “[a]fter the second-round interview, our interview team 22 decided that Dan and Tyler were the top candidates, and we were considering hiring both.” Senn 23 Decl. ¶ 7. Thus, Senn “met with Tyler and Dan separately to better understand their interest and 24 experience with field instrumentation and their technical skills and depth.” Id. He states: 25 From that third interview, I decided Dan was the stronger of the two in terms of data analysis and interpretation and Dan had less hands- 26 on experience with field instruments. Dan also told me during this interview that it was his preference not to have a major fieldwork role 27 (although he expressed that he was willing to manage the program). I also learned from speaking with Tyler that Tyler was very interested wanted substantial fieldwork to be part of his next job, while also 1 being strong in the areas of data analysis, statistics and coding. 2 Senn Decl. ¶ 7. 3 Dan was offered the position in December 2021 and he accepted the offer. Id. ¶¶ 56-57. 4 The Smartsheet reflects that he rated his abilities as “beginner” in Python and Matlab but 5 advanced as to R Programming. Id. Ex. D. Hunt and David Senn also decided to offer a second 6 Environmental Scientist position to Tyler but Tyler informed Hunt that he had decided the 7 position would not “be the best fit” for him before a formal offer was extended to him. Id. ¶ 59 & 8 Ex. II. In his application, Tyler described himself as “Advanced” in R Programming, “Beginner” 9 in Python and “Intermediate” in Matlab. Id., Ex. D. 10 2. The Motion 11 In the Motion, SFEI asserts that under the McDonnell Douglas burden shifting framework, 12 it is entitled to summary judgment on Plaintiff’s discrimination claims under Title VII and the 13 ADEA because the undisputed facts establish that Plaintiff was not qualified for the position and 14 therefore, she cannot make a prima facie case of discrimination based on SFEI’s failure to hire her. 15 Motion at 22. In particular, it contends, while Plaintiff believes she was qualified for the position 16 based on her “extensive experience with ‘advanced software provided by the manufacturer’ (but 17 admittedly not with R Programming Language, Python or Matlab) and ‘cutting-edge voltametric 18 microelectrodes[,]’ . . . it is undisputed that [SFEI] was not looking for these skillsets when hiring 19 for the Environmental Scientist position.” Id. (citing Cardenas Decl. ¶ 2 & Ex. A. (Pl. Depo. 77:5- 20 18; 78:17-79:15; 104:1-4, 138:5-11); id. ¶ 3 & Ex. B (Resp. RFAs Nos. 10-13); Dkt. no. 30 (SAC) 21 ¶¶ 71, 74-74, 77-78; Hunt Decl.¶¶ 60,61). According to SFEI, “Plaintiff’s subjective personal 22 judgments of her competence alone does not raise a genuine issue of material fact.” Id. (citing 23 Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996); De Markoff v. Superior Ct. 24 of California, 2014 WL 2895200, at *6 (E.D. Cal. June 25, 2014)). 25 SFEI further asserts that Plaintiff cannot establish discrimination because the undisputed 26 facts establish that Lisa Hunt – the decision-maker who decided not to advance Ma’s application 27 to a screening interview – “did not know Plaintiff’s or the other candidates’ age, race or national 1 origin.” Id. at 26-27. According to SFEI, the fact that Hunt was aware of Ma’s year of graduation 2 and that she attended school in China is not sufficient to establish that Hunt had “actual 3 knowledge” that Ma was in a protected group. Id. 4 SFEI argues that Plaintiff cannot prevail on her discrimination claims for the additional 5 reason that it has articulated a legitimate, non-discriminatory for rejecting her application, namely, 6 that Plaintiff had no experience with any of the three programming languages (R Programming, 7 Metlab and Python) listed in the application questionnaire and therefore did not have the “data 8 analysis skills [SFEI was looking for[.]” Id. at 27-28. Furthermore, SFEI asserts, Plaintiff cannot 9 “produce sufficient evidence to raise a genuine issue of material fact as to whether the employer’s 10 proffered nondiscriminatory reason is merely a pretext for discrimination.” Id. at 28 (citing 11 Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th Cir. 2000)). To establish pretext, SFEI 12 contends, Plaintiff must point to “specific and substantial evidence” that SFEI’s failure to hire her 13 was motivated by discriminatory intent but Plaintiff cannot do so. Id.at 28-30. 14 According to SFEI, Plaintiff cannot rebut the evidence that Hunt decided not to move Ma’s 15 application to the screening interview stage because she did not have the data analysis skills SFEI 16 was looking for; nor can she rebut SFEI’s evidence that the successful candidates did have those 17 skills and SFEI’s hiring decision was based, in part, on that fact. Id. at 28-29. SFEI argues that it 18 is not enough that it offered the position to “two seemingly white men of different national origin 19 than her, who were younger than her” as she has pointed to no evidence of discriminatory intent 20 on Lisa Hunt’s part and speculation as to her motivation is not sufficient to rebut the legitimate, 21 non-discriminatory reason SFEI has offered. Id. at 29-30. Likewise, SFEI contends, Plaintiff’s 22 suggestion that Senn “was somehow involved in the decision on whether she should advance to 23 the screening interview round” is supported by no evidence. Id. at 30. Nor is there any evidence 24 that Senn harbored any discriminatory animus toward Plaintiff, according to SFEI. Id. 25 3. Opposition 26 In her Opposition brief, Plaintiff asserts that there is evidence sufficient to create material 27 issues of fact with respect to her discrimination claims based on a “multi-year pattern of 1 during litigation.” Opposition at 4. 2 Plaintiff contends she has “superior qualifications,” citing her experience “analyz[ing] 3 large data sets for biogeochemical research about water quality and [her] proven records supported 4 by her 16 peer-reviewed publications demonstrating expertise in nutrient biogeochemistry, water 5 quality analysis, and estuarine ecosystem science that her research solved real environmental 6 water quality problems.” Id. (citing Ma Decl., ¶¶ 1-19 & Ex. A). 7 Plaintiff offers evidence that after she sent an email to Senn, on March 3, 2016, in which 8 she “propos[ed] a detailed research study to investigate nitrogen and phosphorus cycling at the 9 oxic/anoxic interface using her cutting-edge voltammetric microelectrode expertise[,]” Senn 10 forwarded the email to Phil and Emily, “acknowledging Plaintiff's ‘deep skillset’ and expertise 11 with microelectrodes for redox chemistry from her PhD work, but stat[ing] ‘it hasn't seemed like a 12 good match for our goals.’” Id. at 5 (citing Ma Decl., Ex. B). Ma contends the email “revealed 13 that none of them understood how to investigate nutrient biogeochemistry.” Id. In particular, she 14 says, “Senn admitted preferring to focus on ‘imperfect’ water column chemistry rather than utilize 15 Plaintiff's expertise for accurate sediment-water interface measurements [and] Phil's response 16 demonstrated fundamental misunderstanding of nutrient dynamics, stating ‘there's rarely if ever 17 anything close to a shortage of nutrients that would need to be alleviated.’” Id. 18 According to Plaintiff, despite rejecting her research proposal, SFEI “subsequently 19 implemented the exact research projects Plaintiff had proposed, hiring others to do the work.” Id. 20 at 5-7. However, Plaintiff asserts, Senn and SFEI did not use Plaintiff’s “voltammetric technology 21 to accurately detect hypoxic zones and measure the oxic/anoxic interface, [and therefore] 22 Defendant’s team could not accurately measure denitrification rates or calculate nitrogen removal 23 in San Francisco Estuary -- resulting in the ‘imperfect’ work Senn preferred over hiring Plaintiff to 24 conduct accurate investigations.” Id. at 7. 25 Plaintiff also contends SFEI engaged in a “pattern of discriminatory communications 26 between 2015 and 2021” citing “[e]mails dating back to 2015 [that] reveal dismissive and biased 27 assessments of Plaintiff’s qualifications.” Id. at 7-8. She cites emails by Senn and Emily and 1 Plaintiff also asserts that Lisa Hunt was unqualified to screen the applications for the 2 Environmental Scientist position and that she had a conflict of interest as to Plaintiff because Hunt 3 and Plaintiff had been a “direct competitor” for a Program Manager/Senior Scientist position at 4 SFEI advertised in January 2021 for which both had applied. Id. at 8-9. According to Plaintiff, 5 “[o]ther hiring committee members deliberately avoided reviewing Plaintiff's application 6 materials, maintaining plausible deniability because interview selection was predetermined.” Id. 7 at 9-10. She also accuses Hunt of litigation misconduct based on the allegation that Hunt 8 “submitted a false declaration stating they only offered the job to Dan, contradicting evidence that 9 Tyler was also offered the position.” Id. at 10. 10 Plaintiff further contends SFEI “repeatedly hired candidates with no relevant water quality 11 and nutrients biogeochemistry expertise” and that neither Dan nor Tyler had “any water quality 12 and nutrients biogeochemistry expertise.” Id. In fact, Plaintiff contends, Dan and Tyler lied when 13 they completed the screening questionnaire when “Dan rated his water quality data analysis 14 experience as Advanced [and] Tyler rated his water quality data analysis experience as 15 Intermediate.” Id. According to Plaintiff, “[i]n Defendant's Response to Plaintiff's First Set of 16 Requests for Admission No. 28 and No. 32, Defendant admitted that Tyler and Dan ‘did not have 17 this experience but denies that this was a critical skillset or even a desired qualification for the for 18 the Environmental Scientist position.’” Id. Plaintiff further asserts that “the questionnaire was 19 manipulated to exclude Plaintiff” because while the “two desired qualifications for the 20 Environmental Scientist position” identified by SFEI in its interrogatory responses were ‘[s]trong 21 quantitative background and data analysis skills using data analysis or statistical software (e.g., 22 Python, R, Matlab),’ and ‘[e]xperience applying those skills to interpret large datasets related to 23 water quality[,]’ Dan and Tyler's self-rated proficiency in statistical software [was] meaningless 24 when they admittedly lack water quality research experience -- the fundamental requirement for 25 meaningful data analysis in this field.” Id. (citing Ma Decl., Ex. O at 19). Plaintiff also criticizes 26 the qualifications of other individuals hired by SFEI between 2016 and 2019. Id. at 11-13. 27 Plaintiff also contends emails about the applicants for the Environmental Scientist position 1 specific candidates prior to the conclusion of interviews, despite acknowledging serious 2 weaknesses in those candidates’ experience.” Id. at 13-16. Furthermore, she asserts that Senn’s 3 deletion of Hunt’s comment on the Smartsheet was deliberate and “revealed Hunt’s discriminatory 4 double standard: Hunt criticized Plaintiff for lacking ‘data analysis skills we are looking for, or 5 PM experience,’ yet Hunt herself lacked expertise to evaluate nutrient biogeochemistry data 6 analysis skills, and Dan and Tyler also lacked PM experience.” Id. at 17. 7 Plaintiff asserts that the declinations of offers for the Environmental Scientist position by 8 Tyler and Adrianne “reveal that even Defendant’s chosen candidates recognized the poor fit 9 between their qualifications and the position requirements.” Id. at 17-18. According to Plaintiff, 10 “[t]hese declinations demonstrate that Defendant’s evaluation criteria were fundamentally flawed 11 and pretextual.” Id. at 18. In particular, she asserts that “[i]f the candidates Defendant preferred 12 over Plaintiff recognized their own unsuitability, Defendant’s justification for rejecting Plaintiff -- 13 who possessed directly relevant expertise in nutrient biogeochemistry and water quality, is 14 exposed as discriminatory pretext rather than legitimate business judgment.” Id. 15 4. Reply 16 In its Reply brief, SFEI reiterates its assertions that Plaintiff has not established a prima 17 facie case of discrimination and cannot establish that the non-discriminatory reason it has offered 18 for declining to offer a position to Plaintiff was pretextual. As a preliminary matter, SFEI 19 contends many of Plaintiff’s assertions of fact are based on her own declaration, which it contends 20 contains inadmissible evidence. Reply at 6-7 (citing examples). SFEI further asserts that Plaintiff 21 has failed to establish a prima facie case of discrimination because she offers no “evidence 22 reflecting Plaintiff’s age, race and national origin, and the age, race, and national origin of the 23 successful candidate Dan and the other candidate whom Defendant was considering offering the 24 position, Tyler.” Id. at 8. Nor does Plaintiff offer any evidence to controvert SFEI’s assertion that 25 she was “not qualified for the Environmental Scientist position because [she] did not have at least 26 intermediate level proficiency and experience in at least one of the three programming 27 languages[,]” SFEI asserts. Id. at 8-10. 1 intent on Hunt’s part, she must provide “specific and substantial evidence that [Hunt’s] proffered 2 explanation is unworthy of credence because it is inconsistent or otherwise not believable” but that 3 she has not done so. Id. at 12. According to SFEI, to the extent Plaintiff believes that SFEI 4 “should have had someone with a background in water quality or nutrients biogeochemistry 5 evaluate applicants and should have prioritized applicants with water quality and nutrients 6 biogeochemistry experience, as opposed to candidates who were proficient in one of the three 7 programming languages with experience in other scientific backgrounds,” that does not establish 8 pretext because “Title VII does not ensure the best will be selected—only that the selection 9 process will be free from impermissible discrimination.” Id. at 11 (quoting Casillas v. U.S. Navy, 10 735 F.2d 338, 344 (9th Cir. 1984) (emphasis in original)). 11 SFEI also notes that Plaintiff does not dispute that Senn “was not involved in the decision 12 on whether Plaintiff would advance to the screening interview round in relation to Plaintiff’s 13 October 13, 2021 application or that he was not even aware that she had applied for the 14 position in 2021.” Id. at 14 (emphasis in original). It further contends Plaintiff’s allegation that 15 SFEI “strategically placed [Hunt], who had been Plaintiff’s direct competitor for the January 2021 16 Program Manager/Senior Scientist position, into a decision-making role for evaluating Plaintiff’s 17 application in October 2021 to create ‘plausible deniability,’ that the other hiring committee 18 members reviewed Plaintiff’s application[ ]” is “far-fetched[,]” “conclusory” and lacking any 19 evidentiary support. Id. at 14. 20 SFEI asserts that Plaintiff has offered no evidence in support of her assertion that Dan and 21 Tyler lied in their screening questionnaires when Dan rated his proficiency and experience with 22 “water quality data analysis” as “Advanced,” and Tyler rating his experience as “Intermediate.” 23 Id. Instead, it contends Plaintiff misrepresented its responses to her requests for admissions on 24 this issue: 25 Plaintiff misrepresents what her Request for Admission Nos. 28 and 32 asked Defendant to admit (i.e., that Dan and Tyler, respectively, 26 “did not have estuarine water quality research experience”)—which is markedly different than what they were asked in their screening 27 questionnaire (“water quality data analysis”). Accordingly, Defendant denied these Request for Admissions, while making clear skillset nor a desired qualification for the Environmental Scientist 1 position. 2 Id. at 14. Furthermore, SFEI asserts, “[t]he undisputed evidence reflects that Tyler had water 3 quality data analysis experience based on his conducting research on agricultural peatland soils, 4 and Dan had water quality data analysis based on his work investigating historical trends in clams 5 in response to eutrophication and environmental change in the Red Sea.” Id. at 15 (citing Hunt 6 Decl. ¶¶ 8, 14, 36 & Ex. E, G, Q). 7 SFEI also rejects Plaintiff’s assertion that it “manipulated the screening questionnaire to 8 specifically exclude Plaintiff in the event Plaintiff were to apply for the position[,]” arguing that 9 this “unsupported conspiracy theory should be disregarded by the Court.” Id. at 16. Likewise, 10 SFEI contends the Court should disregard Plaintiff’s unsupported allegation that “Tyler declined 11 the position and that Adrianne declined the second-round interview because they recognized a 12 mismatch between their qualifications and the position requirements and determined they were not 13 suited for the role.” Id. at 17. 14 Nor does the evidence show that the selection of Dan was predetermined, as Plaintiff 15 contends, according to SFEI. Id. at 17-18. SFEI notes that while Senn described Dan as a 16 “promising candidate” based on his application materials, “this is by no means a predetermined 17 ‘endorsement’ of a specific candidate.” Id. Furthermore, SFEI asserts, “Plaintiff has not 18 produced any evidence to establish that [Senn] made any hiring decision until after the hiring 19 committee conducted three rounds of interviews and submitted independent feedback and rankings 20 regarding the candidates to avoid ‘group think.’” Id. at 18. And “even if Defendant was flawed 21 in its hiring criteria or assessment of the candidates and offered the position to the ‘wrong’ 22 candidate, that does not violate Title VII[,]” SFEI contends. Id. (citing De Markoff v. Super. Ct. of 23 Cal., 2014 WL 2895200, at *7 (E.D. Cal. June 25, 2014); McKennon v. Nashville Banner Pub. 24 Co., 115 S.Ct. 879, 886 (1995)). 25 H. Discussion 26 1. Legal Standards Governing Summary Judgment 27 Summary judgment on a claim or defense is appropriate “if the movant shows that there is 1 no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 2 law.” Fed. R. Civ. P. 56(a). In order to prevail, a party moving for summary judgment must show 3 the absence of a genuine issue of material fact with respect to an essential element of the non- 4 moving party’s claim, or to a defense on which the non-moving party will bear the burden of 5 persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 6 Once the movant has made this showing, the burden then shifts to the party opposing 7 summary judgment to designate “‘specific facts showing there is a genuine issue for trial.’” Id. 8 (citation omitted); see also Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact . . . is genuinely 9 disputed must support the assertion by . . . citing to particular parts of materials in the record 10 . . . .”). “[T]he inquiry involved in a ruling on a motion for summary judgment . . . implicates the 11 substantive evidentiary standard of proof that would apply at the trial on the merits.” Anderson v. 12 Liberty Lobby Inc., 477 U.S. 242, 252 (1986). The non-moving party has the burden of 13 identifying, with reasonable particularity, the evidence that precludes summary judgment. Keenan 14 v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). Thus, it is not the task of the court to scour the 15 record in search of a genuine issue of triable fact. Id.; see Carmen v. S.F. Unified Sch. Dist., 237 16 F.3d 1026, 1031 (9th Cir. 2001); Fed. R. Civ. P. 56(c)(3). 17 On summary judgment, the court draws all reasonable factual inferences in favor of the 18 non-movant, Scott v. Harris, 550 U.S. 372, 378 (2007), but where a rational trier of fact could not 19 find for the non-moving party based on the record as a whole, there is no “genuine issue for trial” 20 and summary judgment is appropriate. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 21 587 (1986). 22 2. Legal Standards Under McDonnell-Douglas 23 The Ninth Circuit applies the McDonnell Douglas three-step burden shifting framework to 24 evaluate motions for summary judgment under Title VII and the ADEA. Shelley v. Geren, 666 25 F.3d 599, 607–08 (9th Cir. 2012); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 26 At the first step, the employee must establish a prima facie case of discrimination. McDonnell- 27 Douglas, 411 U.S. at 802. If the employee meets that burden, the analysis proceeds to the second 1 articulate some legitimate, nondiscriminatory reason for the challenged action.” Chuang v. Univ. 2 of California Davis, Bd. of Trs., 225 F.3d 1115, 1123–24 (9th Cir. 2000) (citing McDonnell- 3 Douglas, 411 U.S. at 802). “If the employer does so, the plaintiff must show that the articulated 4 reason is pretextual ‘either directly by persuading the court that a discriminatory reason more 5 likely motivated the employer or indirectly by showing that the employer’s proffered explanation 6 is unworthy of credence.’ ” Id. (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 7 248, 256 (1981)). 8 To make a prima facie case of discrimination based under failure to hire under Title VII 9 and the ADEA, a plaintiff must establish that (1) they are a member of a protected class; (2) they 10 applied for and were qualified for a job for which the employer was seeking applicants; (3) they 11 were rejected despite being qualified for the job; and (4) the employer filled the position with an 12 employee not of plaintiff’s class, or continued to consider other applicants whose qualifications 13 were comparable to plaintiff’s after rejecting plaintiff. McDonnell Douglas Corp. v. Green, 411 14 U.S. at 802; Cotton v. City of Alameda, 812 F.2d 1245, 1248 (9th Cir. 1987). “At summary 15 judgment, the degree of proof necessary to establish a prima facia case is minimal and does not 16 even need to rise to the level of a preponderance of the evidence.” Lyons v. England, 307 F.3d 17 1092, 1112 (9th Cir. 2002) (citing Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)) 18 (internal quotation marks omitted). 19 To survive summary judgment where the plaintiff has made a prima facie case of 20 discrimination and the defendant has articulated a legitimate, non-discriminatory reason for the 21 alleged adverse employment action, a plaintiff must offer direct evidence or specific and 22 substantial circumstantial evidence that the proffered reason is pretextual. Manatt v. Bank of Am., 23 NA, 339 F.3d 792, 801 (9th Cir. 2003); see also Dominguez-Curry v. Nev. Transp. Dept., 424 24 F.3d 1027, 1037 (9th Cir. 2005) (citing Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220–22 25 (9th Cir. 1998) (“The plaintiff may show pretext either (1) by showing that unlawful 26 discrimination more likely motivated the employer, or (2) by showing that the employer’s 27 proffered explanation is unworthy of credence because it is inconsistent or otherwise 3. Whether Plaintiff has Established that there are Triable Issues Relating to 1 Pretext 2 The Court assumes without deciding that Plaintiff has established a prima facie case of 3 discrimination. The question before the Court is whether Plaintiff has pointed to evidence 4 sufficient to survive summary judgment that the non-discriminatory reason SFEI has offered for 5 declining to hire her (or even to advance her to the screening interview stage of the hiring 6 process), namely, that she did not have experience using any of the three programming languages 7 used at SFEI, was a pretext for discriminating against her based on her age, race or national origin. 8 The Court finds that she has not. 9 SFEI has offered evidence that it sought to hire for the Environmental Scientist position an 10 individual with strong data analysis skills, including facility in at least one of the three 11 programming languages used at SFEI (R Programming Language, Python or Metlab). It has also 12 offered evidence that: 1) all of the candidates who were advanced for a screening interview 13 ranked themselves as “intermediate” or “advanced” as to at least one of those languages (including 14 the candidates who were eventually selected to receive offers, Tyler and Dan), whereas Plaintiff 15 ranked herself as “beginner” in all three; 2) Lisa Hunt was the sole decision-maker as to whether 16 Plaintiff would receive a screening interview; 3) Lisa Hunt had no actual knowledge about 17 Plaintiff’s demographic information, had never communicated with David Senn about Plaintiff 18 and did not know who she was; and 4) at the time she first reviewed Plaintiff’s application, on 19 October 14, 2021, she made a notation on the Smartsheet that Ma did not “appear to have the data 20 analysis skills [SFEI was] looking for[.]” and wrote “no” in the screening interview column.8 21 Hunt Decl., Ex. D. 22 Plaintiff has not offered any specific evidence controverting these facts and she has pointed 23 to no direct evidence of discriminatory animus by Lisa Hunt or anyone else involved in hiring for 24 the Environmental Scientist position. Instead, she argues that notwithstanding her lack of 25 experience with any of the three programming languages identified in the screening questionnaire, 26

27 8 Hunt also listed Ma’s lack of program manager experience as a con but that is not the reason 1 she was more qualified than the candidates who were selected to receive offers, Tyler and Dan 2 (whom she assumes to be younger than her and not in a protected class with respect to race and 3 national origin), suggesting that her superior qualifications give rise to an inference of 4 discriminatory intent. However, Plaintiff’s subjective opinions about her qualifications are not 5 sufficient to create a dispute of material fact as to discriminatory intent. Bradley v. Harcourt, 6 Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996) (“an employee's subjective personal judgments of 7 her competence alone do not raise a genuine issue of material fact.”). Nor has she offered any 8 other “specific and substantial evidence” that SFEI rejected her application based on her age, race, 9 or national origin. 10 Instead, Plaintiff has speculated that the screening questionnaire was somehow 11 manipulated to prevent her from being hired and that Hunt and Senn and possibly others conspired 12 against her. Yet there is no evidence of such a conspiracy or that Senn (or anyone else at SFEI 13 other than Hunt) was involved in any way in the decision not to hire Plaintiff. Furthermore, the 14 Court has already rejected Plaintiff’s accusations of litigation misconduct by SFEI. See dkt. no. 15 74. Plaintiff’s unsupported conspiracy theories are not sufficient to demonstrate the existence of 16 any material dispute of fact as to SFEI’s alleged discriminatory intent in rejecting Plaintiff’s 17 application for the Environmental Scientist position in the fall of 2021. Therefore, the Court 18 concludes that SFEI is entitled to summary judgment in its favor on all of Plaintiff’s remaining 19 discrimination claims. 20 V. CONCLUSION 21 For the reasons stated above, the Sanctions Motion is GRANTED in part. Plaintiff is 22 ordered to pay $2,400 in sanctions to SFEI based on her violation of the protective order in this 23 case. The Court’s rulings on the sealing motions are set forth above. SFEI’s Summary Judgment

24 25 26 27 ] Motion is GRANTED. The Clerk is instructed to enter judgment in favor of SFEI and close the 2 case. 3 IT IS SO ORDERED. 4 5 || Dated: February 11, 2026 6 7

J PH C. SPERO 9 nited States Magistrate Judge 10 11 a 12

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