Del Villar v. Transdev Services, Inc ( 2019 )

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 ALICIA DELVILLAR, Case No.: 18-cv-1721-W (MDD) 14 Plaintiff, ORDER DENYING DEFENDANT’S 15 v. MOTION FOR SUMMARY JUDGMENT [DOC. 16] 16 TRANSDEV SERVICES, INC., 17 Defendant. 18 19 20 Pending before the Court is Defendant Transdev Services, Inc.’s, motion for 21 summary judgment or, in the alternative, summary adjudication. Plaintiff Alicia Del 22 Villar opposes. 23 The Court decides the matter on the papers submitted and without oral argument. 24 See Civ. L.R. 7.1(d.1). For the following reasons, the Court DENIES the motion for 25 summary judgment [Doc. 16]. 26 // 27 // 28 1 I. BACKGROUND 2 In this lawsuit, Plaintiff Alicia Del Villar is suing her former employer, Defendant 3 Transdev Services, Inc. (“Transdev”), for retaliation and wrongful termination. At the 4 time of her termination, Del Villar was a bus driver and union shop steward. In June 5 2016, Transdev terminated her for allegedly failing to “immediately” report that her bus 6 bumped a pedestrian, who darted in front of the bus just as it began to leave the bus stop. 7 There is no dispute that Del Villar reported the incident within 1 minute of bumping the 8 pedestrian. 9 Notwithstanding Transdev’s absurd interpretation of “immediately,” it now seeks 10 summary-judgment for two reasons. First, it argues Del Villar’s causes of action are 11 preempted by federal law to the extent they require interpretation of the term 12 “immediately” in the Collective Bargaining Agreement (“CBA”) between Transdev and 13 Del Villar’s union. Second, Transdev contends Del Villar cannot establish that its 14 “legitimate” reason for terminating was pretext for her Union activity. (P&A [Doc. 16-1] 15 1:5–6.) Because Del Villar’s causes of action do not require the interpretation of the 16 CBA, they are not preempted. Additionally, because there exists a disputed issue of fact 17 regarding pretext, summary judgment is not appropriate. 18 19 A. Del Villar’s union activity. 20 Del Villar was employed as a bus driver for Transdev from approximately May 21 2004 until June 24, 2016, when she was terminated. (Pl’s Tab 1 (“Del Villar Decl.”) 22 [Doc. 23-2] ¶¶ 3, 4; Lewis Decl. [Doc. 17-2] ¶¶ 3, 4; Def’s Ex. B [Doc. 17-2].) As a bus 23 driver for Transdev, Del Villar was a member of Teamsters Local 683 (the “Union”), 24 which had a CBA with Transdev. (Lewis Decl. ¶ 4; Def’s Ex. 29 [Doc. 17-2].) 25 26 27 1 Page references to Defendant’s exhibits are to three digit bates stamp at the bottom center of the page. 28 1 During her employment with Transdev, Del Villar was active in the Union. In 2 2013, she was elected as a Shop Steward and was on the run-cut committee. (Del Villar 3 Decl. ¶¶ 5, 6; Lewis Decl. ¶¶ 4, 6.) As a run-cut committee member, Del Villar helped 4 review Transdev’s proposed changes to bus routes in order to ensure compliance with, 5 among other things, mandated driver meal-time and rest breaks. (Del Villar Decl. ¶ 6.) 6 In approximately November 2015, Transdev proposed new bus routes. Del Villar 7 believed the proposed routes for the South Bay failed to comply with California law and 8 the CBA regarding driver meal and rest breaks, and in early 2016 she notified 9 management. (Del Villar Decl. ¶¶ 6, 7, 9.) Although management fixed the problem for 10 the Chula Vista routes, the revised proposed bus routes for South Bay continued to have 11 the same problems. (Id. ¶¶ 8, 9.) Del Villar, therefore, again advised management about 12 the problems. (Id.) 13 14 B. Relevant Provisions of the CBA, and Transdev’s Safety Policies and 15 Procedures Manual. 16 Article 10 of the CBA between the Union and Transdev covers “Discipline and 17 Discharge.” (Def’s Ex. 29 at 149.) Relevant to this motion is subsection 10.3, “Serious 18 Infraction (Examples)”, which provides “examples of violations of Company policies and 19 rules that are considered Serious Infractions and shall be just cause for immediate 20 discharge….” (Id at 150.) Among the examples is the “[f]ailure to report a hazardous 21 situation, accident or injury immediately to the dispatcher or supervisor.” (Id. at 151.) 22 Similarly, Transdev’s 2015 Safety Policies and Procedures manual states, “[e]mployees 23 that do not report an accident immediately will result in disciplinary action up to and 24 including termination.” (Def’s Ex. 28 [Doc. 17-2] at 131.) 25 26 C. The June 16, 2016 Incident. 27 On June 16, 2016, Del Villar was picking up passengers at a bus stop near 54th 28 Street and El Cajon Boulevard in San Diego. (Del Villar Decl. ¶ 10.) As she closed the 1 bus’s doors and was in the initial moments of pulling away from the curb, a pedestrian 2 jaywalking from across the street to catch the bus stepped in front of the driver’s side of 3 the bus. (Id.) Del Villar slammed on the breaks as the pedestrian continued to cross in 4 front of the bus. (Id.) Del Villar then opened the doors, allowing the pedestrian to board 5 the bus. (Id.) As the person boarded the bus, Del Villar scolded her for being reckless. 6 (Id.) According to Del Villar, the passenger responded by denying that the bus struck 7 her. (Id.2) 8 Del Villar’s bus is equipped with a number of cameras, one of which appears to be 9 positioned high above Del Villar’s seat. (Lewis Decl. ¶ 6.) From that angle, a bike rack 10 mounted on the front of the bus appears to bump the pedestrian. (Lewis Decl. Ex. A.) 11 Del Villar contends she did not believe the bus struck the pedestrian. (Del Villar Decl. ¶ 12 12.) 13 As Del Villar began to again pull-away from the curb, she noticed the passenger 14 rubbing her shoulder. (Del Villar Decl. ¶ 11.) Worried that either the bus struck the 15 passenger or that the passenger was going to make a false claim, Del Villar stopped the 16 bus and reported the incident to dispatch. (Id.) Approximately one minute elapsed from 17 the time the passenger appeared in front of the bus and Del Villar notified dispatch. 18 (Def’s Ex. 23 [Doc. 17-1 at 083.) 19 20 D. Del Villar’s Termination. 21 On June 17, 2016, Del Villar met with Transdev’s management to discuss and 22 review the video of the incident from the bus’s cameras. (Def’s Ex. 23 at 084.) Del 23 Villar explained that she did not report the incident immediately because she believed 24 25 26 2 Transdev disputes Del Villar’s contention that she did not believe the bus bumped the pedestrian. But whether Del Villar believed the bus bumped the passenger is irrelevant to the issues raised in this 27 motion. Moreover, even if Del Villar knew she bumped the passenger, there remains no dispute she contacted dispatch within 1 minute, which in most situations would satisfy an “immediate” reporting 28 1 there was no “incident” to report. (Def’s Ex. 25 [Doc. 17-1] at 090.) However, in the 2 Operator Incident Report prepared shortly after the accident, she wrote: “I was scared 3 because she stuck [sic] with the ramp of the bicycle.” (Def’s Ex. 24 [Doc. 17-1] at 087.3) 4 Regardless of whether Del Villar actually believed the bus bumped the pedestrian, 5 Transdev’s termination notice confirms she reported the incident within one minute. 6 (Def’s Ex. 23 at 083.) 7 Nevertheless, after the meeting, Del Villar was placed on administrative leave for 8 purportedly failing to “immediately” report the incident. (See Def’s Ex. 26 [Doc. 17-1].) 9 On June 22, 2016, Del Villar met with the Regional HR Manager to discuss the incident 10 again. (Def’s Ex. 23 at 084.) Although the incident was considered non-preventable and 11 was reported within one minute, Transdev terminated Del Villar. (See id.) At the time, 12 Transdev had not resolved the issues with driver meal and rest breaks that Del Villar had 13 e-mailed them about on May 6, May 29 and June 12. (Def’s Ex. A at 022–027, 030–031.) 14 Del Villar filed a complaint with the National Labor Relations Board claiming she 15 was terminated for engaging in protected union activities. The NLRB found insufficient 16 evidence and dismissed the claim. The dismissal was upheld on appeal. 17 Del Villar filed this lawsuit in state court on May 17, 2018. Transdev removed the 18 case to this court and now seeks summary judgment or, in the alternative, summary 19 adjudication. 20 21 II. LEGAL STANDARD 22 Summary judgment is appropriate under Rule 56(c) where the moving party 23 demonstrates the absence of a genuine issue of material fact and entitlement to judgment 24 25 26 3 In her deposition, Del Villar clarified that she wrote the report in a hurry and struggled to find the right words. (Def’s Ex. A at 039; Del Villar Decl. ¶14.) She was trying to convey that she did not believe the 27 passenger was hit by the bus, but when De Villar saw the passenger holding her arm she got scared that the passenger might have been hit after all. (Id.) English is not Del Villar’s first language. (Pl.’s Opp. 28 1 as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 2 (1986). A fact is material when, under the governing substantive law, it could affect the 3 outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A 4 dispute about a material fact is genuine if “the evidence is such that a reasonable jury 5 could return a verdict for the nonmoving party.” Id. at 248. 6 A party seeking summary judgment always bears the initial burden of establishing 7 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving 8 party can satisfy this burden in two ways: (1) by presenting evidence that negates an 9 essential element of the nonmoving party’s case; or (2) by demonstrating that the 10 nonmoving party failed to make a showing sufficient to establish an element essential to 11 that party’s case on which that party will bear the burden of proof at trial. Id. at 322–23. 12 “Disputes over irrelevant or unnecessary facts will not preclude a grant of summary 13 judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 14 (9th Cir. 1987). If the moving party fails to discharge this initial burden, summary 15 judgment must be denied and the court need not consider the nonmoving party’s 16 evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60 (1970). 17 If the moving party meets this initial burden, the nonmoving party cannot avoid 18 summary judgment merely by demonstrating “that there is some metaphysical doubt as to 19 the material facts.” In re Citric Acid Litig., 191 F.3d 1090, 1094 (9th Cir. 1999) (citing 20 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Triton 21 Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (citing Anderson, 477 22 U.S. at 252) (“The mere existence of a scintilla of evidence in support of the nonmoving 23 party’s position is not sufficient.”). Rather, the nonmoving party must “go beyond the 24 pleadings and by her own affidavits, or by ‘the depositions, answers to interrogatories, 25 and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for 26 trial.’” Ford Motor Credit Co. v. Daugherty, 279 Fed. Appx. 500, 501 (9th Cir. 2008) 27 (citing Celotex, 477 U.S. at 324). Additionally, the court must view all inferences drawn 28 1 from the underlying facts in the light most favorable to the nonmoving party. See 2 Matsushita, 475 U.S. at 587. 3 4 III. DISCUSSION 5 Transdev raises two arguments in support of the request for summary judgment. 6 First, it argues that Del Villar’s claims are preempted by section 301(a) of the Labor 7 Managing Relations Act. Second, Transdev contends that Del Villar cannot demonstrate 8 that its legitimate reason for terminating her was a pretext. 9 10 A. Del Villar’s claims are not preempted. 11 Section 301(a) of the Labor Managing Relations Act preempts state law claims if 12 (1) the claim is based upon a collective bargaining agreement, or (2) the claim requires 13 the court to interpret a collective bargaining agreement. See Ramirez v. Fox Television 14 Station, Inc., 998 F.2d 743, 748 (9th Cir. 1993). Courts draw a line between referencing 15 versus interpreting a collective bargaining agreement. Kobold v. Good Samaritan Reg’l 16 Med. Ctr., 832 F.3d 1024, 1033 (9th Cir. 2016). Merely referring to or applying the 17 terms of the agreement will not trigger preemption. Id. 18 Here, Del Villar is not alleging breach of the CBA. Instead, she is suing for 19 wrongful termination and retaliation under California Labor Codes § 98.6 and § 1102.5.4 20 (Compl. 3:23–25.) To prevail on these claims, Del Villar must succeed under the three- 21 step burden shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 22 792 (1973). See Loggins v. Kaiser Permanente Internat., 151 Cal. App. 4th 1102, 1108– 23 09 (2007). This requires her to first establish a prima-facia case of retaliation. See id. at 24 1109. If successful, the burden then shifts to Transdev to provide a legitimate, 25 26 27 4 Del Villar’s second cause of action for wrongful termination in violation of public policy is derivative of her retaliation claims. (Compl. ¶ 34). Therefore, if her retaliation claims fail, so does her claim for 28 1 nondiscriminatory reason for its decision to fire her. See id. If Transdev satisfies this 2 burden, Del Villar must then prove Transdev’s stated reason is a pretext. See id. 3 In support of its preemption argument, Transdev contends that in order to establish 4 pretext, Del Villar will likely challenge Transdev’s contention that she failed to 5 immediately report the incident. According to Transdev, because this will require 6 interpretation of the term “immediately” in section 10.3.l of the CBA, Del Villar’s claims 7 are preempted. 8 But in her opposition, Del Villar does not argue that she immediately reported the 9 incident or that Transdev breached the CBA. Rather, Del Villar seeks to establish pretext 10 by relying on, among other things, evidence of Transdev’s management’s animosity to 11 Del Villar based on her Union activity, the proximity of her Union activity to her 12 termination, and Transdev’s treatment of a “similarly situated” employee. (See Opp. 13 [Doc. 23] 10:3–18.) Because Del Villar’s claims do not require the interpretation of the 14 CBA, her state-law claims are not preempted. 15 16 B. Disputed issues of fact exist regarding pretext. 17 Under the McDonnell Douglas burden-shifting framework, an employer moving 18 for summary judgment “has the initial burden to present admissible evidence showing 19 either that one or more elements of plaintiff’s prima facie case is lacking or that the 20 adverse action was based upon legitimate, nondiscriminatory factors.” Guyton v. Novo 21 Nordisk, Inc., 151 F.Supp.3d 1057, 1076 (C.D. Cal. 2015) (quoting Serri v. Santa Clara 22 Univ., 226 Cal.App.4th 830, 861 (2014) (internal quotation omitted)). 23 Transdev does not attack Del Villar’s prima facie case, but instead argues it had a 24 legitimate, nondiscriminatory basis for her termination. (P&A 12:4–13:7.) In her 25 opposition, Del Villar does not argue that Transdev failed to meet its burden of 26 identifying a legitimate reason for her termination. Instead, Del Villar argues Transdev’s 27 proffered reason is a pretext for terminating her. 28 1 “‘A plaintiff can prove pretext in two ways: (1) indirectly, by showing that the 2 employer’s proffered explanation is unworthy of credence because it is internally 3 inconsistent or otherwise not believable, or (2) directly, by showing that unlawful 4 discrimination more likely motivated the employer.” Guyton, 151 F.Supp.3d at 1078 5 (quoting Noyes v. Kelly Servs., 488 F.3d 1163, 1170 (9th Cir. 2007)). The former 6 requires the employee to “‘demonstrate such weaknesses, implausibilities, 7 inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate 8 reasons for its action that a reasonable fact finder could rationally find them unworthy of 9 credence . . . and hence infer that the employer did not act for the . . . non-discriminatory 10 reasons.’” Id. at 1079 (quoting Dep’t of Fair Emp’t & Hous. V. Lucent Techs., Inc., 642 11 F.3d 728, 746 (9th Cir. 2011) (citation)). “Where evidence of pretext is circumstantial, 12 rather than direct, the plaintiff must produce ‘specific’ and ‘substantial’ facts to create a 13 triable issue of pretext.” Earl v. Nielsen Media Research, Inc., 658 F. 3d 1108, 1113 (9th 14 Cir. 2011) (citing Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998)). 15 However, this “standard is ‘tempered’ by our observation that a plaintiff’s burden to raise 16 a triable issue of pretext is ‘hardly an onerous one.’” Id. (citing Noyes, 488 F.3d at 17 1170). 18 Del Villar seeks to demonstrate pretext with direct and indirect evidence indicating 19 that Transdev’s stated reason is unworthy of credence. First, Del Villar contends the 20 proximity between her Union activity and termination is indirect evidence of pretext. 21 “[P]roximity in time between the protected action and the allegedly retaliatory 22 employment decision [i]s one [way] a jury logically could infer [that the plaintiff] was 23 terminated in retaliation.” Dawson v. Entek Intern., 630 F.3d 928, 937 (9th Cir. 2011) 24 (brackets in original) (quoting Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 25 741, 751–52 (9th Cir.2001)). 26 Here, Del Villar’s evidence establishes that in early 2016 she raised concerns that 27 Transdev’s proposed changes to the bus routes violated Wage Order 9, pertaining to 28 driver meal period and rest breaks. Because she felt Transdev was ignoring her, on May 1 6, 2016, Del Villar sent an email to Transdev’s management about the problems with the 2 proposed bus routes. (Def’s Ex. A at 022–024.) In response, Transdev’s management 3 asserted that Del Villar did not understand the CBA or the law because she “did not know 4 enough English….” (Id. at 024.) Nevertheless, in or about May 29, 2016, Del Villar sent 5 another e-mail to Transdev’s management about the violations. (Id. at 026–027.) Then 6 on June 12, 2016, Del Villar sent yet another email to Transdev’s management regarding 7 labor issues. (Id. at 030–031.) During her deposition, Del Villar also testified that the 8 problems regarding Wage Order 9 were “never resolved.” (Id. at 025.) Additionally, 9 another declarant has stated that after Del Villar was terminated, the situation “got worse” 10 to the extent Transdev created more routes that “required long hours with only one meal 11 period.” (Pl’s Tab 2 [Doc. 23-2] ¶ 10.) Based on this evidence, it is reasonable to infer 12 that when Del Villar was terminated, she was in the middle of aggressively advocating 13 for driver’s rights under the CBA and California law. 14 In its reply, Transdev contends Del Villar’s evidence is insufficient to defeat 15 summary judgment because “temporal proximity alone” cannot establish pretext. (Reply 16 [Doc. 25] 2:17–20.) As an initial matter, Transdev is wrong: “In some cases, temporal 17 proximity can by itself constitute sufficient circumstantial evidence of retaliation for 18 purposes of both the prima facie case and the showing of pretext.” Dawson, 630 F.3d at 19 937 (citing Miller v. Fairchild Industries, Inc., 797 F.2d 727 (9th Cir. 1986) and Bell v. 20 Clackamas Cnty., 341 F.3d 858 (9th Cir. 2003)). Given that Del Villar was terminated 21 while in the midst of repeatedly complaining about Transdev’s failure to comply with 22 California labor law and the CBA, the Court finds Del Villar’s temporal proximity 23 evidence is compelling. Regardless, Del Villar’s claim of pretext is not based solely on 24 the temporal proximity of her termination and Union activity. 25 Transdev also attempts to minimize the significance of Del Villar’s temporal 26 proximity evidence by pointing out that she had been complaining “about non-compliant 27 routes/run-cuts for over three years….” (Reply 2:14–17.) Presumably, Transdev believes 28 this history demonstrates its tolerance for her Union activity because Transdev asserts it 1 is “fatal to Plaintiff’s argument that the ‘temporal proximity’ between her last complaint 2 and the termination is sufficient to establish pretext.” (Id.) Although a jury may agree 3 with Transdev’s proposed inference, it is just as reasonable for a jury to find Transdev’s 4 management grew tired of Del Villar’s constant complaints about labor issues every time 5 it proposed new bus routes. Indeed, the later inference is consistent with additional 6 evidence submitted by Del Villar. 7 In addition to the temporal proximity evidence, Del Villar contends that it was well 8 known that Transdev’s management disliked her because of her Union activity. In 9 support of this claim, Del Villar has provided the declaration of a Transdev driver who, 10 while in “management’s office on some business,” observed director Sergio Padilla begin 11 cursing after seeing a “union flier he did not like.” (Pl’s Tab 5 [Doc. 23-2] ¶ 8.) The 12 driver also stated that Padilla said “he ‘knew who was responsible, it was Alicia Del 13 Villar.’” (Id.) These comments are consistent with the inference that after three years of 14 aggressively pursuing driver rights, management may have grown tired of Del Villar’s 15 Union activity.5 16 Transdev responds that Padilla’s comments are not evidence of pretext and cites 17 Trop v. Sony Pictures Entertainment, Inc., 129 Cal.App.4th 1133 (2005), as support. In 18 Trop, the plaintiff attempted to establish pregnancy discrimination based on 19 management’s negative statement about having children that was made during a casual 20 conversation at a Christmas party. But the Court of Appeal held the statement was 21 insufficient because there was no evidence management knew plaintiff was pregnant 22 when she was fired. Id. at 1147, 1148–49. Thus, notwithstanding management’s 23 24 25 26 5 Del Villar has submitted two additional declarations of employees who contend management did not like Del Villar because of her Union activity. (See Pl’s Tab 3 [Doc. 23-2], Tab 4 [Doc. 23-2].) 27 Transdev’s objection to the declarations on the basis that they lack foundation is sustained. Del Villar has failed to provide any basis for the opinions of the two employees. 28 1 comment, the decision could not have been based on plaintiff’s pregnancy since 2 management did not know she was pregnant. 3 In contrast to Trop, Padilla’s comment was not made in a social setting, but in 4 management’s offices while the employee was there on business. Additionally, unlike 5 Trop, there is no dispute that when Del Villar was terminated, management knew she was 6 active in the Union advocating for drivers’ rights. 7 Next, Del Villar also contends Transdev has treated similarly situated employees 8 differently. In support of this argument, Del Villar attached the declaration of Loebardo 9 Garcia, who was not terminated despite waiting several hours to report a safety violation. 10 (Pl’s Tab 5 ¶ 8.) In reply, Transdev argues Garcia is not “similarly situated” because his 11 safety violation involved driving over trolley tracks without stopping, not striking a 12 pedestrian. (Reply 2:28–3:1.6) 13 “[O]ther employees are similarly situated to the plaintiff when they ‘have similar 14 jobs and display similar conduct.’” Earl, 658 F.3d at 1114 (Vasquez v. Cnty. Of Los 15 Angeles, 349 F.3d 634, 641 (9th Cir. 2003). “The employees need not be identical, but 16 must be similar in material respects.” Id. (citing Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 17 1151, 1157 (9th Cir. 2010). “Materiality depends on context and is a question of fact that 18 ‘cannot be mechanically resolved.’” Id. Applying these principles, the Ninth Circuit in 19 Earl found employees were similarly situated because they had the same position and 20 violated the same policies and procedures, despite violating them under different 21 circumstances. Id. at 1114–16. 22 23 24 25 6 Transdev also contends Garcia is not similarly situated because unlike Del Villar, he had not received previous warnings for failing to immediately report incidents. (Reply 3:2–4.) But as pointed out in her 26 opposition, section 10.1 of the CBA provides that after 12 months, “a discipline shall become null and void.” (Def’s Ex. 29 at 149.) Because Del Villar’s previous warnings occurred more than 12 months 27 before the June 2016 incident, under section 10.1 the warnings had no bearing (i.e., were irrelevant) on Transdev’s discipline of Del Villar. 28 1 Here, Transdev is correct that Del Villar and Garcia’s violations involved different 2 underlying conduct. However, as in Earl, Del Villar and Garcia occupied the same 3 || position (i.e., bus drivers) and their conduct violated the same CBA provision, section 4 ||10.3.1. In fact, Garcia’s violation was arguably more egregious to the extent he failed to 5 ||report the incident for several hours, while Del Villar reported the incident within | 6 || minute.’ 7 Although relevant, Del Villar’s single instance of management’s frustration with 8 ||her Union activity and of its disparate treatment of one similarly situated employee would 9 be sufficient to defeat Transdev’s motion. However, when combined with Del 10 || Villar’s temporal proximity evidence, there is sufficient evidence to create a disputed 11 |/issue of fact regarding pretext. Accordingly, Transdev is not entitled to summary 12 || judgment. 13 14 CONCLUSION & ORDER 15 For the foregoing reasons, the Court DENIES Transdev’s motion for summary 16 ||judgment [Doc. 16]. 17 IT IS SO ORDERED. 18 Dated: December 20, 2019 \ 19 fish ue Lor 20 Hn. 1 omas J. Whelan 1 United States District Judge 22 23 24 |j_—__ 25 Del Villar has submitted additional declarations of employees who contend Del Villar was treated 26 || differently than other similarly situated employees. (See Pl’s Tab 4, Tab 5.) Transdev’s objection to the declarations on the basis that they lack foundation is again sustained. Del Villar cannot rely on the 27 || declarants’ beliefs about the way management treated other employees in order to establish that she was 28 treated differently than similarly situated employees. 12