Isom v. JDA Software Incorporated

Filing 114

ORDER, granting the Motion to Strike Defendant's Response to Plaintiff's Supplemental Statement of Facts and Attached Exhibits (Doc. 105 ). Doc. 104 and Doc. 104-1 shall be stricken. IT IS FURTHER ORDERED granting in part and denying in part Defendant's Motion for Summary Judgment (Doc. 90 ). See document for details. Signed by Senior Judge James A Teilborg on 06/29/15. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kimberly Isom,

No. CV-12-02649-PHX-JAT
Plaintiff,

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v.

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ORDER

JDA Software Incorporated,

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Defendant.

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Pending before the Court are Defendant’s Motion for Summary Judgment (Doc.

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90) and Plaintiff’s Motion to Strike Defendants’ Response to Plaintiff’s Supplemental

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Statement of Facts and Attached Exhibits (Docs. 104 & 104-1) (Doc. 105). The Court

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now rules on the motions.

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I.

Motion to Strike

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After Plaintiff filed her controverting and supplemental statements of facts (Doc.

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96), Defendant filed a Response to Plaintiff’s Supplemental Statement of Facts along

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with attached exhibits. (Doc. 104). Plaintiff moves to strike this document as improperly

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filed in violation of the Local Rules of Civil Procedure (“Local Rules”). (Doc. 105 at 1).

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The Local Rules do not permit a party moving for summary judgment to file a separate

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response to the non-moving party’s statement of facts. Kinnally v. Rogers Corp., 2008

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WL 5272870, at *2 (D. Ariz. Dec. 12, 2008).

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Defendant nonetheless objects to the striking of its filing on the basis that it could

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not possibly address all of Plaintiff’s 118 supplemental statements of facts in its reply

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brief. (Doc. 108 at 3). Defendant apparently miscomprehends the standard for deciding a

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motion for summary judgment, in which the movant bears the burden of proving “there is

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no genuine dispute as to any material fact and the movant is entitled to judgment as a

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matter of law.” Fed. R. Civ. P. 56(a).

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Explicating the logical possibilities for a supplemental statement of facts

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demonstrates why Defendant’s argument must fail. Each of Plaintiff’s supplemental facts

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necessarily must fall into one of the following categories: (1) not material to deciding the

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motion, (2) material to deciding the motion and disputed, or (3) material to deciding the

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motion and undisputed. A movant is not prejudiced by not responding to facts falling into

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the first category because a court does not consider immaterial facts in ruling on a motion

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for summary judgment. See Quanta Indem. Co. v. Amberwood Dev. Inc., 2014 WL

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1246144, at *3 (D. Ariz. Mar. 26, 2014). Nor is a movant prejudiced by not responding to

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facts falling into the second category because disputed facts serve to defeat the motion for

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summary judgment. Defendant in its unauthorized response disputes a number of

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Plaintiff’s supplemental facts; if just one of these facts is material to deciding the motion,

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then Defendant has necessarily defeated its own motion. Thus, Defendant can gain

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nothing by disputing these facts. Finally, a movant is not prejudiced by not responding to

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facts falling into the third category because the movant’s agreement that these

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supplemental facts are undisputed merely further supports the non-movant’s position.

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Defendant’s final argument is that in B2B CFO Partners, LLC v. Kaufman, 856 F.

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Supp. 2d 1084 (D. Ariz. Mar. 5, 2012), the Court approved the movant’s filing of a

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response to the non-movant’s supplemental statement of facts. (Doc. 108 at 3). In B2B,

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the Court noted that it had historically handled voluminous supplemental statements of

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fact by permitting an extended page limit for the movant’s reply. 856 F. Supp. 2d at 1087.

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However, the Court also noted that although the movant’s filing violated the Local Rules,

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the “limited amount of time available before this case is scheduled to go to trial”

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precluded the Court from striking the movant’s responsive statement of facts and

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permitting an extended-length reply. Id. The Court “reluctantly” allowed the improper

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filing. Id. Thus, the Court limited its ruling in B2B to the peculiar facts of that case. More

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significantly, in the present case, Defendant asked for and received a five-page extension

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of the page limits for its reply. See (Doc. 106). Therefore, Defendant cannot complain

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that it lacked an opportunity to address Plaintiff’s supplemental facts.

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Because Defendant’s response to Plaintiff’s supplemental statements of fact is

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procedurally improper, the Court will grant Plaintiff’s motion to strike.

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II.

Motion for Summary Judgment
Background1

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A.

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In 2004, Plaintiff began working for a company named Manguistics, which sold

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supply chain software. (Doc. 96 ¶ 171). Defendant is in the business of developing and

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selling supply chain management and merchandising software, and acquired Manguistics

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in 2006. (Id. ¶¶ 2, 3). Defendant employed Plaintiff as a Major Account Manager

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(“MAM”) from the time it acquired Manguistics through Plaintiff’s last employed date of

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January 7, 2013. (Id. ¶¶ 4, 5).

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MAMs such as Plaintiff were responsible for selling Defendant’s software to a

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target list of existing and prospective customers. (Id. ¶ 5). Defendant assigned both

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accounts (customers) and opportunities (specific targeted sales to an account) to MAMs,

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with sales efforts being based on opportunities. (Id. ¶ 7; Doc. 91-2 at 14). MAMs worked

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their opportunities until either sealing the deal or the customer made a decision to

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purchase a competitor’s product. (Doc. 96 ¶ 7). Defendant did not reassign opportunities

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unless a MAM was terminated for performance issues. (Doc. 96-3 at 93). However,

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MAMs did not “own” their accounts in the same way as they did opportunities;

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periodically, Defendant reassigned accounts among MAMs, often quarterly or annually.

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(Doc. 91-2 at 14). Nonetheless, while a MAM was assigned a particular account, he or

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she would be assigned all new opportunities arising from that account. (Doc. 96-4 at

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120).

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The Court has construed any disputed facts in the light most favorable to
Plaintiff. See Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004).
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Defendant uses a service called SalesForce.com to track accounts and

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opportunities assigned to a MAM. (Doc. 96 ¶ 8). Within SalesForce.com, MAMs track

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their opportunities, their anticipated sale prices, and indicate the progression (or lack

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thereof) of an opportunity to a deal by assigning statuses of suspect, potential, probable,

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firm, and closed (ranging from 20% to 100%). (Doc. 96-4 at 83). MAMs personally

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updated the data, including the status, of their opportunities in SalesForce.com. (Doc. 96

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¶ 8). Defendant compensated all MAMs according to the same compensation structure,

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consisting of a base salary plus sales commissions based on an annual sales quota. (Doc.

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96 ¶ 9). However, each MAM had his or her own assigned sales quota. (Doc. 96-4 at 23).

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In December 2010, Plaintiff informed Defendant’s Senior Human Resources

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Manager, Debra Baker, that she was pregnant. (Doc. 96 ¶ 23). In April 2011, Plaintiff

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inquired with Defendant’s Human Resources (“HR”) department as to the details of

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taking leave, particularly focusing on the available combinations of sick time, vacation

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time, short-term disability, or Family Medical and Leave Act (“FMLA”) time. (Doc. 96-6

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at 111-14). No one in the HR department represented to Plaintiff that her accounts and

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opportunities would be reassigned during her leave, or that they would not be reassigned.

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(Doc. 96 ¶ 29). Plaintiff would be the first MAM to ever take pregnancy leave. (Doc. 96-

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3 at 169-70).

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On February 23, 2011, Plaintiff met with her direct supervisor, Bradley Bell, to

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discuss how her upcoming leave would affect her sales opportunities. (Id. ¶ 30). Bell told

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Plaintiff that she did not have to worry about losing her accounts or commissions, and

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that her accounts would be taken care of during her leave.2 (Doc. 96-4 at 36). Bell also

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told Plaintiff that Customer Relationship Managers (“CRMs”) would cover her key

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accounts that did not have active sales activity and Bell would cover her other accounts.

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(Doc. 91-5 at 14).

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On March 7, 2011, Plaintiff sent an e-mail to Baker in which Plaintiff described

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Bell asserts that he never made these statements to Plaintiff. (Doc. 91-2 at 20-

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Bell as having told Plaintiff that Bell would work all of her active deals while she was on

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leave, no other MAMs would be assigned to her opportunities or accounts, and she would

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receive 100% of the commissions on any deals that closed during her leave. (Doc. 96 ¶

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33). Plaintiff also told Baker that Bell said Plaintiff would receive all of her accounts

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back as if she “never took leave” and based on these statements, Plaintiff believed that

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she could take all the time needed to recover after giving birth. (Id.) Baker forwarded

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Plaintiff’s e-mail to Bell to confirm whether Bell had indeed made these statements to

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Plaintiff. (Id. ¶ 34). Bell denied making these statements and said he had offered to help

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her active deals but had not discussed any payment of commissions with Plaintiff. (Id.)

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Plaintiff continued to request information from Defendant as to what would happen to her

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accounts, opportunities, and commissions during her upcoming leave, but by June 2,

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2011, Defendant had not determined how Plaintiff’s commissions would be handled.

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(Doc. 96-3 at 26).

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Plaintiff gave birth on June 3, 2011, and she took eleven weeks of consecutive

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FMLA leave beginning on that date, until her return to work on August 22, 2011. (Doc.

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96 ¶¶ 42, 60). On June 5, 2011, Plaintiff e-mailed Baker and a Michael Bridge regarding

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her leave, attaching a list of her assigned opportunities and stating that she had been

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provided with the maternity policy that allowed commissions to be “paid in full with no

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interruption” and that her job was protected if she returned to work within twelve weeks.

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(Doc. 96-6 at 56-57). Senior Vice President of Human Resources Brian Boylan replied to

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Plaintiff, stating that Plaintiff’s interpretation of the maternity policy was incorrect. (Id. at

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56). Boylan told Plaintiff that neither Defendant’s policy nor practice provided for full

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payment of commissions during a leave of absence. (Id.) Boyland stated that although the

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general policy was not to pay any commission for a closed deal during leave,

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management would determine whether it was necessary to assign another MAM to

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Plaintiff’s accounts during her absence. If it was not necessary to assign another MAM

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and the deal closed during Plaintiff’s leave, Defendant would pay Plaintiff her

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commission for the deal. If it was necessary to assign another MAM and the deal closed

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during Plaintiff’s leave, Plaintiff would not receive commission for that deal. (Id.)

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On June 28, 2011, Bell e-mailed Baker and Tim Mahoney, Group Vice President

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of Sales, regarding two opportunities at Discount Tire and Sears Canada that Bell had

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been covering during Plaintiff’s absence. (Doc. 96 ¶ 47). Bell stated that after assessing

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the status of the deals for several weeks, and discussing with Mahoney, he and Mahoney

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had decided it was necessary to assign another MAM to these opportunities. (Id.) Bell

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stated that he thought he could not allocate sufficient time to give Defendant the best

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opportunity to close the opportunities. (Id.) Bell told Baker that he believed there was

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significant “demo prep” that needed to occur during July 2011 with respect to the

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Discount Tire opportunity. (Id. ¶ 49).

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On July 6, 2011, while Plaintiff was still on leave, Bell e-mailed Plaintiff to

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inform her that he had decided to reassign the Discount Tire and Sears Canada

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opportunities to another MAM. (Doc. 96-6 at 62). Plaintiff asked if she would get the

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accounts back upon her return, and what the commission splits would be. (Id.) Bell

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replied that there was no commission split and that upon Plaintiff’s return to work,

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Defendant would review those accounts and determine if they should be assigned back to

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Plaintiff. (Id. at 61). Defendant reassigned the Discount Tire opportunity to Bev Amoth, a

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female MAM. (Doc. 96 ¶ 64). Defendant reassigned the Sears Canada opportunity to

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another MAM, Bill Wortham. (Doc. 91-1 at 24-25).

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Defendant did not reassign the Discount Tire or Sears Canada opportunities to

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Plaintiff when she returned from leave. (Doc. 96 ¶ 86). Plaintiff repeatedly requested that

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these opportunities be returned to her, but Defendant refused. (Id. ¶¶ 84, 86). The

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Discount Tire opportunity never resulted in a deal or commission. (Id. ¶ 64). Wortham

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ultimately closed the Sears Canada deal in the first quarter of 2012. (Doc. 96-5 at 71).

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While Wortham was progressing on the Sears Canada deal, Defendant reassigned the

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related Sears US account from Plaintiff to Wortham. (Doc. 96 ¶ 103). Wortham

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ultimately closed the Sears US deal in the third quarter of 2012. (Id. ¶ 108).

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Plaintiff returned to the same compensation structure that she had prior to going

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on leave. (Doc. 96-4 at 60). Plaintiff was assigned other opportunities on large accounts

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but Plaintiff believed these accounts were “dog” accounts unlikely to result in any deals.

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(Id.) Plaintiff’s 2011 performance review noted that Plaintiff failed to reach her annual

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quota because of her leave. (Doc. 96-5 at 48). On February 3, 2012, Plaintiff e-mailed

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Mahoney and asked how she could have more “$1b plus” accounts added to her list so

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that she had ten named accounts and ten on her “target list.” (Id. at 5). Plaintiff

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complained that she had only six named accounts and that the Sears Canada, Sears US,

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Restoration Hardware, and Discount Tire accounts had been removed from her list during

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and after her leave. (Id.) Plaintiff stated that she had asked for the Best Buy, American

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Greetings, Walmart, Canadian Tire, and Orchard Supply accounts but had been refused

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on all of them. (Id.) Plaintiff said she had received the World Kitchen account, but it was

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only $90 million in sales and generally “not in our range.” (Id.)

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On June 15, 2012, Plaintiff filed a Charge of Discrimination with the Equal

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Employment Opportunity Commission (“EEOC”), contending that Defendant had

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assigned accounts on a discriminatory basis due to Plaintiff’s gender and pregnancy, in

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violation of the Equal Pay Act (“EPA”), and in retaliation against Plaintiff for taking

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FMLA leave. (Id. ¶ 117).

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On August 6, 2012, Plaintiff asked Defendant to remove certain accounts that had

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been assigned to her in the past month because the companies were not interested in

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purchasing any JDA software. (Doc. 91-6 at 2). Plaintiff also asked for the MicroCenter

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account to be assigned to her but this account was ultimately assigned to another MAM.

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(Id.)

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Plaintiff made $197,000 in sales during the first three quarters of 2012, against a

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quota of $3.125 million. (Doc. 96 ¶ 121). In September 2012, Defendant placed Plaintiff

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on a performance improvement plan, which required Plaintiff to close 50% of the

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opportunities that she had rated as “potential” and “probable” by the end of the first

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quarter of 2013. (Id. ¶ 121). In late 2012, Defendant acquired a competitor and terminated

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a number of employees as a result. Ten MAMs, six of whom were based in the United

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States, were terminated. (Id. ¶ 126). Plaintiff was one of the terminated MAMs. (Id.) On

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January 4, 2013, Defendant notified Plaintiff that her employment was being terminated.

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(Id. ¶ 129). Plaintiff then brought this lawsuit.

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B.

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Summary judgment is appropriate when “the movant shows that there is no

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genuine dispute as to any material fact and the movant is entitled to judgment as a matter

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of law.” Fed. R. Civ. P. 56(a). “A party asserting that a fact cannot be or is genuinely

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disputed must support that assertion by . . . citing to particular parts of materials in the

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record, including depositions, documents, electronically stored information, affidavits, or

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declarations, stipulations . . . admissions, interrogatory answers, or other materials,” or by

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“showing that materials cited do not establish the absence or presence of a genuine

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dispute, or that an adverse party cannot produce admissible evidence to support the fact.”

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Id. 56(c)(1)(A), (B). Thus, summary judgment is mandated “against a party who fails to

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make a showing sufficient to establish the existence of an element essential to that party’s

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case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.

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Catrett, 477 U.S. 317, 322 (1986).

Summary Judgment Standard

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Initially, the movant bears the burden of pointing out to the Court the basis for the

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motion and the elements of the causes of action upon which the non-movant will be

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unable to establish a genuine issue of material fact. Id. at 323. The burden then shifts to

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the non-movant to establish the existence of material fact. Id. The non-movant “must do

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more than simply show that there is some metaphysical doubt as to the material facts” by

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“com[ing] forward with ‘specific facts showing that there is a genuine issue for trial.’”

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (quoting

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Fed. R. Civ. P. 56(e) (1963) (amended 2010)). A dispute about a fact is “genuine” if the

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evidence is such that a reasonable jury could return a verdict for the non-moving party.

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant’s bare

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assertions, standing alone, are insufficient to create a material issue of fact and defeat a

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motion for summary judgment. Id. at 247–48. However, in the summary judgment

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context, the Court construes all disputed facts in the light most favorable to the non-

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moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004).

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C.

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Defendant contends that it is entitled to judgment as a matter of law on Plaintiff’s

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claim for interference with her FMLA rights. (Doc. 90 at 11). As an initial matter, the

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Court notes that the parties disagree as to the extent of Plaintiff’s FMLA claims against

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Defendant. Plaintiff believes she alleges three claims under the FMLA: interference,

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unlawful discrimination, and retaliation. (Doc. 100 at 13-14). Defendant asserts that

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Plaintiff alleges only a claim for FMLA interference. (Doc. 90 at 15).

FMLA Interference Claim

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The parties are not the first to struggle with the somewhat-unintuitive terminology

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of the FMLA. See Gressett v. Cent. Ariz. Water Conservation Dist., CV12-00185-PHX-

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JAT, 2014 WL 4053404, at *9-10 (D. Ariz. Aug. 14, 2014) (explaining in detail the

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differences between the two types of FMLA claims, interference and retaliation).

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Because Plaintiff alleges that she was not restored to an equivalent position following her

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FMLA leave, (Doc. 6 at 6). Plaintiff alleges a claim for interference under the FMLA.

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Because Plaintiff alleges that she was threatened with termination following her FMLA

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leave and the implication is that this was in retaliation for filing her EEOC complaint,

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Plaintiff also alleges a claim for retaliation under the FMLA.3 “Discrimination,” however,

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is a descriptive term for “the factual circumstances of interference claims,” and not a type

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of FMLA claim. See Gressett, 2014 WL 4053404, at *9.

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1.

Legal Standard

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“The FMLA creates two interrelated, substantive employee rights: first, the

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employee has a right to use a certain amount of leave for protected reasons, and second,

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the employee has a right to return to his or her job or an equivalent job after using

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protected leave.” Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1122 (9th Cir. 2001).

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Any eligible employee who takes FMLA leave is “entitled, on return from such leave . . .

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to be restored by the employer to the position of employment held by the employee when

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The Court will discuss all claims involving retaliation in Section II.E, infra.
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the leave commenced; or . . . to be restored to an equivalent position with equivalent

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employment benefits, pay, and other terms and conditions of employment.” 29 U.S.C. §

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2614(a)(1). The employee is not entitled, however, to any benefits of employment other

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than those “to which the employee would have been entitled had the employee not taken

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the leave.” Id. § 2614(a)(3)(B).

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“The right to reinstatement guaranteed by 29 U.S.C. § 2614(a)(1) is the linchpin of

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the entitlement theory because ‘the FMLA does not provide leave for leave’s sake, but

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instead provides leave with an expectation that an employee will return to work after the

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leave ends.’” Sanders v. City of Newport, 657 F.3d 772, 778 (9th Cir. 2011) (quoting

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Edgar v. JAC Prods., Inc., 443 F.3d 501, 507 (6th Cir. 2006)). “Thus, evidence that an

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employer failed to reinstate an employee who was out on FMLA leave to her original (or

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an equivalent) position establishes a prima facie denial of the employee’s FMLA rights.”

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Id.

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To prove a claim for interference with FMLA rights, an employee must show that

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“(1) [s]he was eligible for the FMLA’s protections, (2) [her] employer was covered by

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the FMLA, (3) [s]he was entitled to leave under the FMLA, (4) [s]he provided sufficient

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notice of [her] intent to take leave, and (5) [her] employer denied [her] FMLA benefits to

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which [s]he was entitled.” Sanders, 657 F.3d at 778 (quoting Burnett v. LWF Inc., 472

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F.3d 471, 477 (7th Cir. 2006)). The employer’s intent is “irrelevant to a determination of

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liability.” Id.

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2.

Analysis

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The sole disputed issue concerning Plaintiff’s FMLA interference claim is whether

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Defendant restored Plaintiff to the same or equivalent position following her maternity

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leave. Specifically, the issue is whether Defendant failed to provide Plaintiff with

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equivalent sales opportunities upon her return. See (Doc. 90 at 12). Plaintiff claims that

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when she returned from her leave, Defendant assigned her worthless, dormant accounts

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that had little or no chance for opportunities. (Doc. 100 at 11; Doc. 96-4 at 60).

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Plaintiff has presented evidence that she contemporaneously complained to

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Defendant that she was no longer being assigned major accounts. See (Doc. 96-5 at 5).

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Plaintiff testified at her deposition that Defendant assigned her accounts that were

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unlikely to produce any opportunities or sales. The Court cannot ignore this evidence, nor

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can it conclude on the present record whether Defendant in fact gave Plaintiff less

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favorable account and opportunity assignments upon her return from leave than it did to

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other MAMs. This requires a factfinder to review evidence on the quality of Plaintiff’s

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accounts compared to those of other MAMs as well as the process for assigning accounts

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to various MAMs. Thus, Plaintiff has shown the existence of a genuine issue of material

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fact as to whether the accounts assigned to Plaintiff were less favorable than those

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assigned to other MAMs.4

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Defendant argues that Plaintiff was not entitled to have the Discount Tire or Sears

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Canada opportunities assigned to her and she had no guarantee that she would retain

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specific accounts. (Doc. 90 at 12-13; Doc. 107 at 4). But Plaintiff’s evidence addresses

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the issue that her post-leave assignments were less favorable than those of other MAMs;

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thus, even assuming Defendant could show that as a matter of law Plaintiff was not

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entitled to retain Discount Tire and Sears Canada, this does not defeat the genuine issue

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of material fact as to whether Defendant assigned substandard accounts to Plaintiff upon

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her return from leave.

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Defendant also points out that despite Plaintiff’s complaints concerning the poor

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quality of her accounts, she represented during a job search that she had a valuable sales

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pipeline of $6 million. (Doc. 90 at 14). Plaintiff sought employment with other

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companies prior to her termination from Defendant, and during one interview, Plaintiff

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At oral argument, both parties discussed McArdle v. Dell Products, L.P., 293 F.
App’x 331 (5th Cir. 2008), in which the plaintiff was a commissioned sales
representative who took FMLA leave. During the plaintiff’s leave, the employer
reassigned the plaintiff’s accounts to other representatives; upon the plaintiff’s return, the
employer returned all of the accounts except one. 293 F. App’x at 333. The court held
that a genuine issue of material fact existed as to whether the missing account diminished
the plaintiff’s future compensation because the plaintiff had averred that the account in
question had historically provided him with $12,000 to $20,000 in bonuses each year. Id.
at 335-36. Thus, McArdle further supports the Court’s conclusion that a genuine issue of
material fact exists as to whether the accounts assigned to Plaintiff were less favorable
than those assigned to other MAMs.
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said that she expected to complete sales of $2.4 to $3.3 million in 2012.5 (Doc. 96 ¶ 136).

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But Plaintiff’s statements show only that she either expected those sales or lied about

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having those sales; they are not authoritative on the issue of whether Defendant assigned

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substandard accounts to Plaintiff.

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Finally, Defendant relies on Breeden v. Novartis Pharmceuticals Corp., 646 F.3d

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43 (D.C. Cir. 2011) for the proposition that an employer’s reassignment of sales accounts

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during FMLA leave does not establish that the employee was not restored to her prior

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position. (Doc. 90 at 15). In Breeden, the employer reassigned its sales accounts after the

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plaintiff had notified the employer of her upcoming leave but before the leave. 646 F.3d

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at 46. The plaintiff returned from maternity leave to “the same title, same salary, same

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benefits, and significantly, the same accounts.” Id. at 47. Prior to the reassignment, the

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plaintiff had been one of the poorest performing salespeople; however, she afterwards

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excelled with a substantial increase in sales and commissions. Id. at 45-46. The court

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rejected the plaintiff’s complaints regarding the details of her post-reassignment

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accounts, finding that they focused “on precisely the sorts of de minimis, intangible, and

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unmeasurable aspect of a job” specifically excluded under the FMLA regulations. Id. at

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52. In the present case, Plaintiff alleges that the post-leave assignment of accounts

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materially affected her job performance and her commissions. Breeden is not helpful

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here.

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For these reasons, Plaintiff has shown that a genuine issue of material fact exists

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as to whether she was restored to the same or equivalent position following her FMLA

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leave.6 Accordingly, Defendant is not entitled to summary judgment on Plaintiff’s claim

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for interference with her FMLA rights.7

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The Court overrules Plaintiff’s relevance objection, which is not well-founded at
the summary judgment stage. See Quanta Indem. Co., 2014 WL 1246144, at *3.
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The Court need not address Defendant’s argument concerning male MAMs who
allegedly took leaves of absence because even if Plaintiff’s allegations were false, this
would not entitle Defendant to summary judgment on this claim. See (Doc. 90 at 15).
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The Court will address Plaintiff’s FMLA retaliation claim with Plaintiff’s other
retaliation claims.
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D.

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Defendant argues that it is entitled to summary judgment on Plaintiff’s claim for

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Title VII Sex Discrimination

sex discrimination under Title VII. (Doc. 90 at 16).
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Legal Standard

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“Title VII of the Civil Rights Act of 1964 forbids a covered employer to

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‘discriminate against any individual with respect to . . . terms, conditions, or privileges of

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employment, because of such individual’s . . . sex.’” Young v. United Parcel Serv., Inc.,

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135 S. Ct. 1338, 1344 (2015). Discrimination on the basis of sex includes discrimination

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on the basis of “pregnancy, childbirth, or related medical conditions.” 42 U.S.C. §

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2000e(k). A plaintiff may prove a Title VII claim in one of two ways: First, she may

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produce “direct or circumstantial evidence demonstrating that a discriminatory reason

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more likely than not motivated the employer.” Surrell v. Cal. Water Serv. Co., 518 F.3d

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1097, 1105 (9th Cir. 2008). Alternatively, and more commonly, the Court applies the

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burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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Under the McDonnell Douglas framework, the plaintiff “must first establish a prima facie

16

case of discrimination or retaliation.” Surrell, 518 F.3d at 1105. This requires showing

17

that “(1) [s]he belongs to a protected class; (2) [s]he was qualified for the position; (3)

18

[s]he was subject to an adverse employment action; and (4) similarly situated individuals

19

outside [her] protected class were treated more favorably.” Chuang v. Univ. of Cal.

20

Davis, 225 F.3d 11125, 1123 (9th Cir. 2000). A plaintiff may alternatively satisfy the

21

fourth element of the prima facie case by showing that her position was filled by

22

someone outside of her protected class. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d

23

1054, 1062 (9th Cir. 2002).

24

“If the plaintiff establishes a prima facie case, the burden then shifts to the

25

defendant to articulate a legitimate, nondiscriminatory reason for its allegedly

26

discriminatory or retaliatory conduct.” Surrell, 518 F.3d at 1106. If the defendant does so,

27

then there is no presumption of discrimination and the plaintiff may defeat summary

28

judgment by showing that the defendant’s “proffered nondiscriminatory reason is merely

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1

a pretext for discrimination.” Id. (quoting Dominguez-Curry v. Nev. Trans. Dep’t, 424

2

F.3d 1027, 1037 (9th Cir. 2005)). In the context of pregnancy discrimination, the

3

Supreme Court has held that a plaintiff may show pretext “by providing sufficient

4

evidence that the [defendant]’s policies impose a significant burden on pregnant workers,

5

and that the [defendant’s] ‘legitimate, nondiscriminatory’ reasons are not sufficiently

6

strong to justify the burden, but rather—when considered along with the burden

7

imposed—give rise to an inference of intentional discrimination.” Young, 135 S. Ct. at

8

1354.

9

2.

Analysis

10

Plaintiff contends that she has shown direct evidence of “discriminatory animus,”

11

and cites, without explanation, fifty-eight paragraphs from her controverting statement of

12

facts. (Doc. 100 at 18). The Court has reviewed each of these paragraphs and finds

13

nothing showing direct evidence of a discriminatory motive on the part of Defendant. The

14

sole piece of evidence that could remotely support Plaintiff’s argument is a comment by

15

Defendant’s executive vice-president of worldwide sales and marketing; upon learning

16

that Plaintiff was going to take maternity leave, he asked Plaintiff whether she would be

17

returning to work afterward. (Doc. 96 ¶ 221). But this statement does not, standing alone,

18

constitute direct (or even indirect) evidence of discriminatory motives on the part of

19

Defendant.

20

More significantly, the parties dispute whether Plaintiff has established a prima

21

facie case of discrimination under the McDonnell Douglas burden-shifting framework.

22

(Doc. 90 at 17; Doc. 100 at 18). Defendant does not dispute that Plaintiff belonged to a

23

protected class or was subject to an adverse employment action. However, Defendant

24

asserts that Plaintiff underperformed in her job and Plaintiff cannot show that similarly

25

situated non-pregnant employees were treated more favorably than her. (Doc. 90 at 17).

26

Plaintiff argues that non-pregnant employees were treated more favorably, and argues

27

that she has established a prima facie case because Defendant reassigned her accounts to

28

non-pregnant employees. (Doc. 100 at 18).

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1

The Court finds Plaintiff has established a prima facie case of discrimination on

2

the basis of sex. Although Defendant points out that Plaintiff had not met her annual sales

3

quota for 2012 and the several preceding years, (Doc. 90 at 17), Plaintiff offered evidence

4

that employees were not disciplined for failing to meet their quotas. For example,

5

Plaintiff was recognized and congratulated as a top revenue producer in 2010 despite

6

failing to reach her quota, and that year only two out of fifteen or sixteen MAMs in her

7

group achieved their quota. (Doc. 96-6 at 83). Quotas were increased each year regardless

8

of prior performance, and not all employees who failed to make quota were placed on a

9

performance improvement plan. (Doc. 96-3 at 166; Doc. 96-5 at 84). Furthermore,

10

Defendant transferred each of Plaintiff’s reassigned accounts to a non-pregnant employee

11

(either Amoth or Wortham). Under Villiarimo, this is sufficient to satisfy the fourth

12

element of the prima facie case. 281 F.3d at 1062. Accordingly, Plaintiff has stated a

13

prima facie case of sex discrimination.8

14

The burden now shifts to Defendant to “articulate a legitimate, nondiscriminatory

15

reason” for its actions. Surrell, 518 F.3d at 1106. Defendant contends that it had to

16

reassign the Sears Canada and Discount Tire opportunities to other MAMs because

17

significant work needed to be done on these accounts during Plaintiff’s absence. (Doc. 96

18

¶ 55). Defendant contends that it did not reassign Discount Tire to Plaintiff because that

19

opportunity was dead by the time she returned from leave. (Doc. 91 ¶ 67). Regarding

20

Sears Canada, Defendant asserts that by the time Plaintiff returned from leave, Wortham

21

had developed significant relationships with Sears Canada’s decision makers and the

22

process had reached a point where changing MAMs would have jeopardized Defendant’s

23

ability to close the deal. (Id. ¶¶ 78-81). Defendant also asserts that with respect to the new

24

accounts assigned to Plaintiff after her return, it had embarked on a plan to review

25
26
27
28

8

One item of evidence submitted by Plaintiff is a chart that shows the earnings of
male and female employees of Defendant. (Doc. 96-5 at 55). Because this chart does not
show any details such as job titles or compensation structure, and individual employee
earnings are partially a function of sales aptitude, it is not probative on the issue of
discrimination. A jury could not reliably conclude from the chart that Defendant favored
male employees.
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1

dormant accounts and distribute them to all of the MAMs in an effort to reenergize them;

2

therefore, it did not single out Plaintiff to receive “dog” accounts. (Doc. 91-3 at 6-7).

3

Defendant has articulated legitimate, nondiscriminatory reasons for its actions.

4

Accordingly, Plaintiff must show that Defendant’s proffered reasons are a pretext

5

for discrimination. Plaintiff complains that Defendant reassigned the Sears Canada and

6

Sears US accounts to a male MAM (Wortham), but her argument omits the fact that

7

Defendant reassigned Discount Tire to a female MAM (Amoth). Plaintiff points to no

8

other evidence that tends to show that Defendant’s proffered reasons are a pretext for

9

discrimination. Plaintiff argues that it was not necessary to reassign these accounts and

10

Plaintiff could have closed Sears Canada and Sears US at least as quickly as Wortham

11

did, (Doc. 100 at 19), but this argument misses the mark. Plaintiff is not entitled to dissect

12

Defendant’s business decisions to examine, with the benefit of hindsight, whether they

13

were optimal. Rather, Plaintiff must show that Defendant’s concerns about not

14

jeopardizing its ability to close these deals were pretext for discrimination. Plaintiff has

15

not pointed to any such evidence, and as such, has not shown that a genuine issue of

16

material fact exists on the claim of discrimination on the basis of sex. Accordingly, the

17

Court will grant summary judgment on this claim for Defendant.

18

E.

19

Plaintiff states two claims for retaliation. First, as the Court has mentioned in its

20

discussion of the FMLA, Plaintiff claims for retaliation under the FMLA. Second,

21

Plaintiff claims for retaliation under Title VII. (Doc. 6 at 8-9). Because the legal

22

standards for retaliation claims under both statutes are substantially similar, the Court

23

will address them together.

24

Retaliation

1.

Legal Standard

25

The FMLA protects an employee against retaliatory action for asserting her

26

FMLA rights, and provides that it is “unlawful for any employer to discharge or in any

27

other manner discriminate against any individual for opposing any practice made

28

unlawful by” the FMLA. 29 U.S.C. § 2615(a)(2). The Ninth Circuit Court of Appeals

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1

(“Ninth Circuit”) has implicitly, but not explicitly, concluded that the McDonnell

2

Douglas burden-shifting framework applies to FMLA retaliation claims. See Sanders,

3

657 F.3d at 777 (noting the use of the McDonnell Douglas framework in FMLA

4

retaliation claims). Other district courts within the Ninth Circuit have since adopted the

5

burden-shifting framework in FMLA retaliation cases. See Kelleher v. Fred Meyer

6

Stores, Inc., 302 F.R.D. 596, 598 (E.D. Wa. 2014); Bushfield v. Donahoe, 912 F. Supp.

7

2d 944, 953 (D. Idaho 2012).

8

Thus, Plaintiff must establish a prima facie case of FMLA retaliation by showing

9

that (1) she engaged in a protected activity, (2) she suffered an adverse employment

10

action, and (3) there was a causal link between the protected activity and the adverse

11

employment action. Kelleher, 302 F.R.D. at 598. If Plaintiff establishes a prima facie

12

case, “the burden then shifts to the defendant to articulate ‘a legitimate,

13

nondiscriminatory reason for the adverse employment action.’” Sanders, 657 F.3d at 777

14

n.3. “If the employer articulates a legitimate reason for its action, the plaintiff must then

15

show that the reason given is pretextual.” Id.

16

As with the FMLA, Title VII also protects an employee from retaliation for

17

asserting her rights. Title VII provides that it is unlawful for an employer to discriminate

18

against an employee “because [s]he has opposed any practice made an unlawful

19

employment practice by this subchapter, or because [s]he has made a charge, testified,

20

assisted, or participated in any manner in an investigation, proceeding, or hearing under

21

this subchapter.” 42 U.S.C. § 2000e-3(a). A claim for retaliation under Title VII involves

22

the same application of the McDonnell Douglas burden-shifting framework as does a

23

claim for retaliation under the FMLA. See Villiarimo, 281 F.3d at 1064 (applying same

24

three-step framework). However, the Supreme Court has recently held that the third

25

element of the prima facie case for Title VII retaliation (and by extension, FMLA

26

retaliation) requires a showing of but-for causation. Univ. of Tex. Sw. Med. Ctr. v.

27

Nassar, 133 S. Ct. 2517, 2534 (2013).

28

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1

2.

Analysis

2

Defendant argues that Plaintiff cannot state a prima facie case of retaliation. (Doc.

3

90 at 20). With respect to the first prong of the prima facie case, Defendant admits only

4

that Plaintiff’s filing of an EEOC charge was a protected activity, (Doc. 90 at 20), while

5

Plaintiff asserts that her internal, informal complaints to supervisors were also protected

6

activities, (Doc. 100 at 20). The Ninth Circuit has held informal complaints to constitute

7

protected activity. See Passantino v. Johnson & Johnson Consumer Prods., Inc., 212

8

F.3d 493, 506 (9th Cir. 2000). Thus, Plaintiff’s actions in complaining to Defendant

9

about the reassignment of her accounts constituted protected activity because Plaintiff’s

10

complaints related to Defendant’s alleged discriminatory action (the reassignment of her

11

accounts). (Doc. 96-3 at 104-07).

12

Plaintiff also suffered adverse employment actions when she was placed on the

13

performance improvement plan and terminated. In the context of a retaliation claim, an

14

adverse employment action is any action that a reasonable employee would have found to

15

be materially adverse, meaning “it might have dissuaded a reasonable worker from

16

making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v.

17

White, 548 U.S. 53, 68 (2006). Plaintiff’s placement on the performance improvement

18

plan (and her termination) might have dissuaded a reasonable employee from making a

19

charge of discrimination.

20

With respect to causation, Plaintiff presents no direct evidence that her complaints

21

or filing of the EEOC charge were the but-for cause of an adverse employment action.

22

However, she alleges that she was placed on a performance improvement plan two

23

months after filing her EEOC charge. (Doc. 100 at 21). This raises the issue as to whether

24

temporal proximity alone can support a causal link between a protected activity and an

25

adverse employment action. The Ninth Circuit has previously held that such a causal link

26

can be inferred from temporal proximity alone. See Thomas v. City of Beaverton, 379

27

F.3d 802, 812 (9th Cir. 2004). Subsequent to that decision, however, the Supreme Court

28

decided Nassar, which rejected the previous motivating-factor test for causality in favor

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1

of the more demanding but-for test. Nassar, 133 S. Ct. at 2534. Post-Nassar, the Court

2

has held that proximity in time combined with knowledge of the protected activity is

3

insufficient for the Court to “find a disputed issue of fact on causation.” Drottz v. Park

4

Electrochemical Corp., 2013 WL 6157858, *15 (D. Ariz. Nov. 25, 2013).

5

Therefore, Plaintiff must show that either her informal complaints or her filing of

6

the EEOC charge was the but-for cause of one of Defendant’s adverse employment

7

actions, which include her placement on the performance improvement plan, the

8

reassignment of accounts, the identity of her newly-assigned accounts, and her

9

termination.9 But Plaintiff’s contentions rest entirely on the temporal proximity between

10

these actions and her complaints. Plaintiff offers no evidence showing that retaliation was

11

a motivating factor for these actions, much less their but-for cause. Accordingly, Plaintiff

12

fails to state a prima facie case for retaliation under either Title VII or the FMLA.

13

Defendant is entitled to summary judgment on Plaintiff’s claim for retaliation under the

14

FMLA as well as Count III of Plaintiff’s Amended Complaint.10

15

F.

16

Plaintiff alleges claims against Defendant for violations of the Equal Pay Act of

17

1963 and the Arizona equal pay statute. Defendant contends it is entitled to summary

18

judgment on these claims. (Doc. 90 at 22).

19

Equal Pay Act

1.

20

Legal Standard
a.

Equal Pay Act of 1963

21

The Equal Pay Act of 1963 (the “Equal Pay Act”) provides, in relevant part:

22

No employer . . . shall discriminate . . . between employees
on the basis of sex by paying wages to employees . . . at a rate

23
24
25
26
27

9

Plaintiff alludes for the first time in her response to Defendant’s motion to an
“Equal Pay Act retaliation claim.” (Doc. 100 at 23). No such claim is alleged in
Plaintiff’s Amended Complaint, and the fact that Plaintiff’s protected activity supporting
her Title VII and FMLA retaliation claims could have been her opposition to a violation
of the Equal Pay Act does not convert the basis for those claims into one under the Equal
Pay Act.
10

28

Thus, the Court need not address Defendant’s contentions regarding Plaintiff’s
alleged failure to exhaust her administrative remedies with respect to retaliation. (Doc. 90
at 22).
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less than the rate at which he pays wages to employees of the
opposite sex . . . for equal work on jobs the performance of
which requires equal skill, effort, and responsibility, and
which are performed under similar working conditions,
except where such payment is made pursuant to . . . (iii) a
system which measures earnings by quantity or quality of
production . . . .
29 U.S.C. § 206(d)(1). A plaintiff has the burden of establishing a prime facie case of
discrimination “by showing that employees of the opposite sex were paid different wages
for equal work.” Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1073-74 (9th Cir. 1999). “The
prima facie case is limited to a comparison of the jobs in question, and does not involve a
comparison of the individuals who hold the jobs.” Id. at 1074. A plaintiff must prove that
the jobs being compared are “substantially equal.” Id.
If a plaintiff establishes a prima facie case of discrimination, then the burden shifts
to the employer to prove that the pay differential is justified under one of the statute’s
four exceptions. Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974). These
exceptions are when payment is made under “(i) a seniority system; (ii) a merit system;
(iii) a system which measures earnings by quantity or quality of production; or (iv) a
differential based on any other factor other than sex.” 29 U.S.C. § 206(d)(1).

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18
19
20
21
22
23
24
25
26
27
28

b.

Arizona equal pay statute

Arizona has enacted an equal pay law similar to that of the federal Equal Pay Act
of 1963. The Arizona law is substantially similar to the federal law, and provides that an
employer must pay male and female employees the same “wage rate[]” unless the wage
rates are in good faith based upon “factor or factors other than sex.” A.R.S. § 23-341(A).
2.

Analysis

Plaintiff’s alleged facts do not support claims for violations of the federal or
Arizona equal pay laws. Fundamentally, the Equal Pay Act requires “equal pay for equal
work.” Gunther v. Wash. Cnty., 623 F.2d 1303, 1309 (9th Cir. 1979). The Sixth Circuit
Court of Appeals (“Sixth Circuit”) has reasoned that when an employer’s compensation
system “measures earnings by quantity or quality of production[,] . . . [t]he ‘quantity’ test
refers to equal dollar per unit compensation rates. There is no discrimination if two
- 20 -

1

employees receive the same pay rate, but one receives more total compensation because

2

he or she produces more.” Bence v. Detroit Health Corp., 712 F.2d 1024, 1029 (6th Cir.

3

1983); see also Jones v. St. Jude Med. S.C., Inc., 823 F. Supp. 2d 699, 752 (S.D. Ohio

4

2011).

5

In the present case, there is no dispute that Plaintiff received the same

6

compensation structure as the male MAMs. Rather, Plaintiff complains that Defendant

7

“orchestrated lower pay by removing lucrative opportunities” from Plaintiff and

8

Defendant “controlled total compensation by assigning dormant or non-equivalent

9

accounts to Plaintiff expecting that she put in the same hours and effort to develop

10

opportunities and close deals which could not reasonably be expected to occur within the

11

same timeframe as those opportunities [Defendant] transferred from Plaintiff to Mr.

12

Wortham.” (Doc. 100 at 16).

13

As the Sixth Circuit held in Bence, equal work for equal pay in a commission

14

compensation structure requires looking to the commission rate, and not to the total

15

commissions paid. It is clear the Equal Pay Act excepts “a system which measures

16

earnings by quantity or quality of production” because there is no guarantee that two

17

sales opportunities of equal potential will require the exact same quantity of work to earn

18

a commission, and therefore no employer could ever guarantee that male and female

19

employees will invest precisely equal quantities of work to earn an equal commission. All

20

that the Equal Pay Act and the Arizona equal pay statute require is that Plaintiff received

21

the same commission rate as male MAMs.

22

Plaintiff complains that Bence is not binding in the Ninth Circuit and notes that the

23

Sixth Circuit stated its holding was a “narrow one.” (Doc. 100 at 16). But the Sixth

24

Circuit in Bence did not limit its holding with respect to the proper measure of

25

compensation for commission sales; rather, the court noted that it did not hold that “an

26

employer may not under any circumstances segregate male and female employees into

27

separate departments and pay them different rates of wages.” Bence, 712 F.2d at 1031.

28

Presumably, such separate departments would have different quantities of work

- 21 -

1

commensurate with their respective wage rates. Regardless, this limitation is irrelevant to

2

the present case.

3

Plaintiff also asserts that Bence acknowledges that total compensation may be an

4

appropriate measure for unequal wages. (Doc. 100 at 16). But the Sixth Circuit merely

5

remarked that in certain circumstances where employees are paid “on the basis of hours

6

spent” or only part of their job depends upon quantity of production, total compensation

7

may be an appropriate benchmark for equal pay. Bence, 712 F.2d at 1027-28. This is

8

consistent with the situation in which an employer pays lower hourly wages or annual

9

salary to workers of one gender than the other gender. It is inapposite where, as in the

10

present case, compensation is tied to performance.

11

Plaintiff also contends that the Ninth Circuit has in one case considered total

12

compensation as the measure of pay applicable to a salesperson, citing Thomsen v. R

13

Supply Co., 220 F. App’x 506 (9th Cir. 2007). The Ninth Circuit’s unpublished opinion

14

in Thomsen does not identify whether the salesperson in that case was paid on

15

commission or on salary, and therefore the case is wholly unhelpful. The Court has not

16

found any Ninth Circuit precedent supporting Plaintiff’s total compensation theory as

17

applied to commission-based compensation structures.

18

Plaintiff’s complaint that Defendant reduced Plaintiff’s total compensation paid by

19

assigning her substandard accounts is an allegation supporting a claim for Title VII sex

20

discrimination, not the Equal Pay Act. Defendant is entitled to summary judgment on

21

Counts IV and V of Plaintiff’s Amended Complaint.

22

III.

Conclusion

23

In conclusion, Defendant is entitled to summary judgment on Plaintiff’s claims for

24

retaliation under the FMLA (listed under “Count I” of Plaintiff’s Amended Complaint),

25

sex discrimination under Title VII (Count II), retaliation under Title VII (Count III),

26

failure to pay equal wage rates under the Equal Pay Act (Count IV), and failure to pay

27

equal wage rates under A.R.S. § 23-341 (Count V). Plaintiff’s sole surviving claim is her

28

claim for interference with her FMLA rights (listed under “Count I” of Plaintiff’s

- 22 -

1

Amended Complaint).

2

For the foregoing reasons,

3

IT IS ORDERED granting the Motion to Strike Defendant’s Response to

4

Plaintiff’s Supplemental Statement of Facts and Attached Exhibits (Doc. 105).

5

IT IS FURTHER ORDERED striking Doc. 104 and Doc. 104-1.

6

IT IS FURTHER ORDERED granting in part and denying in part Defendant’s

7
8

Motion for Summary Judgment (Doc. 90).
Dated this 29th day of June, 2015.

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