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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kimberly Isom, No. CV-12-02649-PHX-JAT Plaintiff, 10 11 v. 12 ORDER JDA Software Incorporated, 13 Defendant. 14 15 Pending before the Court are Defendant’s Motion for Summary Judgment (Doc. 16 90) and Plaintiff’s Motion to Strike Defendants’ Response to Plaintiff’s Supplemental 17 Statement of Facts and Attached Exhibits (Docs. 104 & 104-1) (Doc. 105). The Court 18 now rules on the motions. 19 I. Motion to Strike 20 After Plaintiff filed her controverting and supplemental statements of facts (Doc. 21 96), Defendant filed a Response to Plaintiff’s Supplemental Statement of Facts along 22 with attached exhibits. (Doc. 104). Plaintiff moves to strike this document as improperly 23 filed in violation of the Local Rules of Civil Procedure (“Local Rules”). (Doc. 105 at 1). 24 The Local Rules do not permit a party moving for summary judgment to file a separate 25 response to the non-moving party’s statement of facts. Kinnally v. Rogers Corp., 2008 26 WL 5272870, at *2 (D. Ariz. Dec. 12, 2008). 27 Defendant nonetheless objects to the striking of its filing on the basis that it could 28 not possibly address all of Plaintiff’s 118 supplemental statements of facts in its reply 1 brief. (Doc. 108 at 3). Defendant apparently miscomprehends the standard for deciding a 2 motion for summary judgment, in which the movant bears the burden of proving “there is 3 no genuine dispute as to any material fact and the movant is entitled to judgment as a 4 matter of law.” Fed. R. Civ. P. 56(a). 5 Explicating the logical possibilities for a supplemental statement of facts 6 demonstrates why Defendant’s argument must fail. Each of Plaintiff’s supplemental facts 7 necessarily must fall into one of the following categories: (1) not material to deciding the 8 motion, (2) material to deciding the motion and disputed, or (3) material to deciding the 9 motion and undisputed. A movant is not prejudiced by not responding to facts falling into 10 the first category because a court does not consider immaterial facts in ruling on a motion 11 for summary judgment. See Quanta Indem. Co. v. Amberwood Dev. Inc., 2014 WL 12 1246144, at *3 (D. Ariz. Mar. 26, 2014). Nor is a movant prejudiced by not responding to 13 facts falling into the second category because disputed facts serve to defeat the motion for 14 summary judgment. Defendant in its unauthorized response disputes a number of 15 Plaintiff’s supplemental facts; if just one of these facts is material to deciding the motion, 16 then Defendant has necessarily defeated its own motion. Thus, Defendant can gain 17 nothing by disputing these facts. Finally, a movant is not prejudiced by not responding to 18 facts falling into the third category because the movant’s agreement that these 19 supplemental facts are undisputed merely further supports the non-movant’s position. 20 Defendant’s final argument is that in B2B CFO Partners, LLC v. Kaufman, 856 F. 21 Supp. 2d 1084 (D. Ariz. Mar. 5, 2012), the Court approved the movant’s filing of a 22 response to the non-movant’s supplemental statement of facts. (Doc. 108 at 3). In B2B, 23 the Court noted that it had historically handled voluminous supplemental statements of 24 fact by permitting an extended page limit for the movant’s reply. 856 F. Supp. 2d at 1087. 25 However, the Court also noted that although the movant’s filing violated the Local Rules, 26 the “limited amount of time available before this case is scheduled to go to trial” 27 precluded the Court from striking the movant’s responsive statement of facts and 28 permitting an extended-length reply. Id. The Court “reluctantly” allowed the improper -2- 1 filing. Id. Thus, the Court limited its ruling in B2B to the peculiar facts of that case. More 2 significantly, in the present case, Defendant asked for and received a five-page extension 3 of the page limits for its reply. See (Doc. 106). Therefore, Defendant cannot complain 4 that it lacked an opportunity to address Plaintiff’s supplemental facts. 5 Because Defendant’s response to Plaintiff’s supplemental statements of fact is 6 procedurally improper, the Court will grant Plaintiff’s motion to strike. 7 II. Motion for Summary Judgment Background1 8 A. 9 In 2004, Plaintiff began working for a company named Manguistics, which sold 10 supply chain software. (Doc. 96 ¶ 171). Defendant is in the business of developing and 11 selling supply chain management and merchandising software, and acquired Manguistics 12 in 2006. (Id. ¶¶ 2, 3). Defendant employed Plaintiff as a Major Account Manager 13 (“MAM”) from the time it acquired Manguistics through Plaintiff’s last employed date of 14 January 7, 2013. (Id. ¶¶ 4, 5). 15 MAMs such as Plaintiff were responsible for selling Defendant’s software to a 16 target list of existing and prospective customers. (Id. ¶ 5). Defendant assigned both 17 accounts (customers) and opportunities (specific targeted sales to an account) to MAMs, 18 with sales efforts being based on opportunities. (Id. ¶ 7; Doc. 91-2 at 14). MAMs worked 19 their opportunities until either sealing the deal or the customer made a decision to 20 purchase a competitor’s product. (Doc. 96 ¶ 7). Defendant did not reassign opportunities 21 unless a MAM was terminated for performance issues. (Doc. 96-3 at 93). However, 22 MAMs did not “own” their accounts in the same way as they did opportunities; 23 periodically, Defendant reassigned accounts among MAMs, often quarterly or annually. 24 (Doc. 91-2 at 14). Nonetheless, while a MAM was assigned a particular account, he or 25 she would be assigned all new opportunities arising from that account. (Doc. 96-4 at 26 120). 27 28 1 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). -3- 1 Defendant uses a service called to track accounts and 2 opportunities assigned to a MAM. (Doc. 96 ¶ 8). Within, MAMs track 3 their opportunities, their anticipated sale prices, and indicate the progression (or lack 4 thereof) of an opportunity to a deal by assigning statuses of suspect, potential, probable, 5 firm, and closed (ranging from 20% to 100%). (Doc. 96-4 at 83). MAMs personally 6 updated the data, including the status, of their opportunities in (Doc. 96 7 ¶ 8). Defendant compensated all MAMs according to the same compensation structure, 8 consisting of a base salary plus sales commissions based on an annual sales quota. (Doc. 9 96 ¶ 9). However, each MAM had his or her own assigned sales quota. (Doc. 96-4 at 23). 10 In December 2010, Plaintiff informed Defendant’s Senior Human Resources 11 Manager, Debra Baker, that she was pregnant. (Doc. 96 ¶ 23). In April 2011, Plaintiff 12 inquired with Defendant’s Human Resources (“HR”) department as to the details of 13 taking leave, particularly focusing on the available combinations of sick time, vacation 14 time, short-term disability, or Family Medical and Leave Act (“FMLA”) time. (Doc. 96-6 15 at 111-14). No one in the HR department represented to Plaintiff that her accounts and 16 opportunities would be reassigned during her leave, or that they would not be reassigned. 17 (Doc. 96 ¶ 29). Plaintiff would be the first MAM to ever take pregnancy leave. (Doc. 96- 18 3 at 169-70). 19 On February 23, 2011, Plaintiff met with her direct supervisor, Bradley Bell, to 20 discuss how her upcoming leave would affect her sales opportunities. (Id. ¶ 30). Bell told 21 Plaintiff that she did not have to worry about losing her accounts or commissions, and 22 that her accounts would be taken care of during her leave.2 (Doc. 96-4 at 36). Bell also 23 told Plaintiff that Customer Relationship Managers (“CRMs”) would cover her key 24 accounts that did not have active sales activity and Bell would cover her other accounts. 25 (Doc. 91-5 at 14). 26 On March 7, 2011, Plaintiff sent an e-mail to Baker in which Plaintiff described 27 28 2 21). Bell asserts that he never made these statements to Plaintiff. (Doc. 91-2 at 20- -4- 1 Bell as having told Plaintiff that Bell would work all of her active deals while she was on 2 leave, no other MAMs would be assigned to her opportunities or accounts, and she would 3 receive 100% of the commissions on any deals that closed during her leave. (Doc. 96 ¶ 4 33). Plaintiff also told Baker that Bell said Plaintiff would receive all of her accounts 5 back as if she “never took leave” and based on these statements, Plaintiff believed that 6 she could take all the time needed to recover after giving birth. (Id.) Baker forwarded 7 Plaintiff’s e-mail to Bell to confirm whether Bell had indeed made these statements to 8 Plaintiff. (Id. ¶ 34). Bell denied making these statements and said he had offered to help 9 her active deals but had not discussed any payment of commissions with Plaintiff. (Id.) 10 Plaintiff continued to request information from Defendant as to what would happen to her 11 accounts, opportunities, and commissions during her upcoming leave, but by June 2, 12 2011, Defendant had not determined how Plaintiff’s commissions would be handled. 13 (Doc. 96-3 at 26). 14 Plaintiff gave birth on June 3, 2011, and she took eleven weeks of consecutive 15 FMLA leave beginning on that date, until her return to work on August 22, 2011. (Doc. 16 96 ¶¶ 42, 60). On June 5, 2011, Plaintiff e-mailed Baker and a Michael Bridge regarding 17 her leave, attaching a list of her assigned opportunities and stating that she had been 18 provided with the maternity policy that allowed commissions to be “paid in full with no 19 interruption” and that her job was protected if she returned to work within twelve weeks. 20 (Doc. 96-6 at 56-57). Senior Vice President of Human Resources Brian Boylan replied to 21 Plaintiff, stating that Plaintiff’s interpretation of the maternity policy was incorrect. (Id. at 22 56). Boylan told Plaintiff that neither Defendant’s policy nor practice provided for full 23 payment of commissions during a leave of absence. (Id.) Boyland stated that although the 24 general policy was not to pay any commission for a closed deal during leave, 25 management would determine whether it was necessary to assign another MAM to 26 Plaintiff’s accounts during her absence. If it was not necessary to assign another MAM 27 and the deal closed during Plaintiff’s leave, Defendant would pay Plaintiff her 28 commission for the deal. If it was necessary to assign another MAM and the deal closed -5- 1 during Plaintiff’s leave, Plaintiff would not receive commission for that deal. (Id.) 2 On June 28, 2011, Bell e-mailed Baker and Tim Mahoney, Group Vice President 3 of Sales, regarding two opportunities at Discount Tire and Sears Canada that Bell had 4 been covering during Plaintiff’s absence. (Doc. 96 ¶ 47). Bell stated that after assessing 5 the status of the deals for several weeks, and discussing with Mahoney, he and Mahoney 6 had decided it was necessary to assign another MAM to these opportunities. (Id.) Bell 7 stated that he thought he could not allocate sufficient time to give Defendant the best 8 opportunity to close the opportunities. (Id.) Bell told Baker that he believed there was 9 significant “demo prep” that needed to occur during July 2011 with respect to the 10 Discount Tire opportunity. (Id. ¶ 49). 11 On July 6, 2011, while Plaintiff was still on leave, Bell e-mailed Plaintiff to 12 inform her that he had decided to reassign the Discount Tire and Sears Canada 13 opportunities to another MAM. (Doc. 96-6 at 62). Plaintiff asked if she would get the 14 accounts back upon her return, and what the commission splits would be. (Id.) Bell 15 replied that there was no commission split and that upon Plaintiff’s return to work, 16 Defendant would review those accounts and determine if they should be assigned back to 17 Plaintiff. (Id. at 61). Defendant reassigned the Discount Tire opportunity to Bev Amoth, a 18 female MAM. (Doc. 96 ¶ 64). Defendant reassigned the Sears Canada opportunity to 19 another MAM, Bill Wortham. (Doc. 91-1 at 24-25). 20 Defendant did not reassign the Discount Tire or Sears Canada opportunities to 21 Plaintiff when she returned from leave. (Doc. 96 ¶ 86). Plaintiff repeatedly requested that 22 these opportunities be returned to her, but Defendant refused. (Id. ¶¶ 84, 86). The 23 Discount Tire opportunity never resulted in a deal or commission. (Id. ¶ 64). Wortham 24 ultimately closed the Sears Canada deal in the first quarter of 2012. (Doc. 96-5 at 71). 25 While Wortham was progressing on the Sears Canada deal, Defendant reassigned the 26 related Sears US account from Plaintiff to Wortham. (Doc. 96 ¶ 103). Wortham 27 ultimately closed the Sears US deal in the third quarter of 2012. (Id. ¶ 108). 28 Plaintiff returned to the same compensation structure that she had prior to going -6- 1 on leave. (Doc. 96-4 at 60). Plaintiff was assigned other opportunities on large accounts 2 but Plaintiff believed these accounts were “dog” accounts unlikely to result in any deals. 3 (Id.) Plaintiff’s 2011 performance review noted that Plaintiff failed to reach her annual 4 quota because of her leave. (Doc. 96-5 at 48). On February 3, 2012, Plaintiff e-mailed 5 Mahoney and asked how she could have more “$1b plus” accounts added to her list so 6 that she had ten named accounts and ten on her “target list.” (Id. at 5). Plaintiff 7 complained that she had only six named accounts and that the Sears Canada, Sears US, 8 Restoration Hardware, and Discount Tire accounts had been removed from her list during 9 and after her leave. (Id.) Plaintiff stated that she had asked for the Best Buy, American 10 Greetings, Walmart, Canadian Tire, and Orchard Supply accounts but had been refused 11 on all of them. (Id.) Plaintiff said she had received the World Kitchen account, but it was 12 only $90 million in sales and generally “not in our range.” (Id.) 13 On June 15, 2012, Plaintiff filed a Charge of Discrimination with the Equal 14 Employment Opportunity Commission (“EEOC”), contending that Defendant had 15 assigned accounts on a discriminatory basis due to Plaintiff’s gender and pregnancy, in 16 violation of the Equal Pay Act (“EPA”), and in retaliation against Plaintiff for taking 17 FMLA leave. (Id. ¶ 117). 18 On August 6, 2012, Plaintiff asked Defendant to remove certain accounts that had 19 been assigned to her in the past month because the companies were not interested in 20 purchasing any JDA software. (Doc. 91-6 at 2). Plaintiff also asked for the MicroCenter 21 account to be assigned to her but this account was ultimately assigned to another MAM. 22 (Id.) 23 Plaintiff made $197,000 in sales during the first three quarters of 2012, against a 24 quota of $3.125 million. (Doc. 96 ¶ 121). In September 2012, Defendant placed Plaintiff 25 on a performance improvement plan, which required Plaintiff to close 50% of the 26 opportunities that she had rated as “potential” and “probable” by the end of the first 27 quarter of 2013. (Id. ¶ 121). In late 2012, Defendant acquired a competitor and terminated 28 a number of employees as a result. Ten MAMs, six of whom were based in the United -7- 1 States, were terminated. (Id. ¶ 126). Plaintiff was one of the terminated MAMs. (Id.) On 2 January 4, 2013, Defendant notified Plaintiff that her employment was being terminated. 3 (Id. ¶ 129). Plaintiff then brought this lawsuit. 4 B. 5 Summary judgment is appropriate when “the movant shows that there is no 6 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 7 of law.” Fed. R. Civ. P. 56(a). “A party asserting that a fact cannot be or is genuinely 8 disputed must support that assertion by . . . citing to particular parts of materials in the 9 record, including depositions, documents, electronically stored information, affidavits, or 10 declarations, stipulations . . . admissions, interrogatory answers, or other materials,” or by 11 “showing that materials cited do not establish the absence or presence of a genuine 12 dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 13 Id. 56(c)(1)(A), (B). Thus, summary judgment is mandated “against a party who fails to 14 make a showing sufficient to establish the existence of an element essential to that party’s 15 case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. 16 Catrett, 477 U.S. 317, 322 (1986). Summary Judgment Standard 17 Initially, the movant bears the burden of pointing out to the Court the basis for the 18 motion and the elements of the causes of action upon which the non-movant will be 19 unable to establish a genuine issue of material fact. Id. at 323. The burden then shifts to 20 the non-movant to establish the existence of material fact. Id. The non-movant “must do 21 more than simply show that there is some metaphysical doubt as to the material facts” by 22 “com[ing] forward with ‘specific facts showing that there is a genuine issue for trial.’” 23 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (quoting 24 Fed. R. Civ. P. 56(e) (1963) (amended 2010)). A dispute about a fact is “genuine” if the 25 evidence is such that a reasonable jury could return a verdict for the non-moving party. 26 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant’s bare 27 assertions, standing alone, are insufficient to create a material issue of fact and defeat a 28 motion for summary judgment. Id. at 247–48. However, in the summary judgment -8- 1 context, the Court construes all disputed facts in the light most favorable to the non- 2 moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004). 3 C. 4 Defendant contends that it is entitled to judgment as a matter of law on Plaintiff’s 5 claim for interference with her FMLA rights. (Doc. 90 at 11). As an initial matter, the 6 Court notes that the parties disagree as to the extent of Plaintiff’s FMLA claims against 7 Defendant. Plaintiff believes she alleges three claims under the FMLA: interference, 8 unlawful discrimination, and retaliation. (Doc. 100 at 13-14). Defendant asserts that 9 Plaintiff alleges only a claim for FMLA interference. (Doc. 90 at 15). FMLA Interference Claim 10 The parties are not the first to struggle with the somewhat-unintuitive terminology 11 of the FMLA. See Gressett v. Cent. Ariz. Water Conservation Dist., CV12-00185-PHX- 12 JAT, 2014 WL 4053404, at *9-10 (D. Ariz. Aug. 14, 2014) (explaining in detail the 13 differences between the two types of FMLA claims, interference and retaliation). 14 Because Plaintiff alleges that she was not restored to an equivalent position following her 15 FMLA leave, (Doc. 6 at 6). Plaintiff alleges a claim for interference under the FMLA. 16 Because Plaintiff alleges that she was threatened with termination following her FMLA 17 leave and the implication is that this was in retaliation for filing her EEOC complaint, 18 Plaintiff also alleges a claim for retaliation under the FMLA.3 “Discrimination,” however, 19 is a descriptive term for “the factual circumstances of interference claims,” and not a type 20 of FMLA claim. See Gressett, 2014 WL 4053404, at *9. 21 1. Legal Standard 22 “The FMLA creates two interrelated, substantive employee rights: first, the 23 employee has a right to use a certain amount of leave for protected reasons, and second, 24 the employee has a right to return to his or her job or an equivalent job after using 25 protected leave.” Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1122 (9th Cir. 2001). 26 Any eligible employee who takes FMLA leave is “entitled, on return from such leave . . . 27 to be restored by the employer to the position of employment held by the employee when 28 3 The Court will discuss all claims involving retaliation in Section II.E, infra. -9- 1 the leave commenced; or . . . to be restored to an equivalent position with equivalent 2 employment benefits, pay, and other terms and conditions of employment.” 29 U.S.C. § 3 2614(a)(1). The employee is not entitled, however, to any benefits of employment other 4 than those “to which the employee would have been entitled had the employee not taken 5 the leave.” Id. § 2614(a)(3)(B). 6 “The right to reinstatement guaranteed by 29 U.S.C. § 2614(a)(1) is the linchpin of 7 the entitlement theory because ‘the FMLA does not provide leave for leave’s sake, but 8 instead provides leave with an expectation that an employee will return to work after the 9 leave ends.’” Sanders v. City of Newport, 657 F.3d 772, 778 (9th Cir. 2011) (quoting 10 Edgar v. JAC Prods., Inc., 443 F.3d 501, 507 (6th Cir. 2006)). “Thus, evidence that an 11 employer failed to reinstate an employee who was out on FMLA leave to her original (or 12 an equivalent) position establishes a prima facie denial of the employee’s FMLA rights.” 13 Id. 14 To prove a claim for interference with FMLA rights, an employee must show that 15 “(1) [s]he was eligible for the FMLA’s protections, (2) [her] employer was covered by 16 the FMLA, (3) [s]he was entitled to leave under the FMLA, (4) [s]he provided sufficient 17 notice of [her] intent to take leave, and (5) [her] employer denied [her] FMLA benefits to 18 which [s]he was entitled.” Sanders, 657 F.3d at 778 (quoting Burnett v. LWF Inc., 472 19 F.3d 471, 477 (7th Cir. 2006)). The employer’s intent is “irrelevant to a determination of 20 liability.” Id. 21 2. Analysis 22 The sole disputed issue concerning Plaintiff’s FMLA interference claim is whether 23 Defendant restored Plaintiff to the same or equivalent position following her maternity 24 leave. Specifically, the issue is whether Defendant failed to provide Plaintiff with 25 equivalent sales opportunities upon her return. See (Doc. 90 at 12). Plaintiff claims that 26 when she returned from her leave, Defendant assigned her worthless, dormant accounts 27 that had little or no chance for opportunities. (Doc. 100 at 11; Doc. 96-4 at 60). 28 Plaintiff has presented evidence that she contemporaneously complained to - 10 - 1 Defendant that she was no longer being assigned major accounts. See (Doc. 96-5 at 5). 2 Plaintiff testified at her deposition that Defendant assigned her accounts that were 3 unlikely to produce any opportunities or sales. The Court cannot ignore this evidence, nor 4 can it conclude on the present record whether Defendant in fact gave Plaintiff less 5 favorable account and opportunity assignments upon her return from leave than it did to 6 other MAMs. This requires a factfinder to review evidence on the quality of Plaintiff’s 7 accounts compared to those of other MAMs as well as the process for assigning accounts 8 to various MAMs. Thus, Plaintiff has shown the existence of a genuine issue of material 9 fact as to whether the accounts assigned to Plaintiff were less favorable than those 10 assigned to other MAMs.4 11 Defendant argues that Plaintiff was not entitled to have the Discount Tire or Sears 12 Canada opportunities assigned to her and she had no guarantee that she would retain 13 specific accounts. (Doc. 90 at 12-13; Doc. 107 at 4). But Plaintiff’s evidence addresses 14 the issue that her post-leave assignments were less favorable than those of other MAMs; 15 thus, even assuming Defendant could show that as a matter of law Plaintiff was not 16 entitled to retain Discount Tire and Sears Canada, this does not defeat the genuine issue 17 of material fact as to whether Defendant assigned substandard accounts to Plaintiff upon 18 her return from leave. 19 Defendant also points out that despite Plaintiff’s complaints concerning the poor 20 quality of her accounts, she represented during a job search that she had a valuable sales 21 pipeline of $6 million. (Doc. 90 at 14). Plaintiff sought employment with other 22 companies prior to her termination from Defendant, and during one interview, Plaintiff 23 4 24 25 26 27 28 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. - 11 - 1 said that she expected to complete sales of $2.4 to $3.3 million in 2012.5 (Doc. 96 ¶ 136). 2 But Plaintiff’s statements show only that she either expected those sales or lied about 3 having those sales; they are not authoritative on the issue of whether Defendant assigned 4 substandard accounts to Plaintiff. 5 Finally, Defendant relies on Breeden v. Novartis Pharmceuticals Corp., 646 F.3d 6 43 (D.C. Cir. 2011) for the proposition that an employer’s reassignment of sales accounts 7 during FMLA leave does not establish that the employee was not restored to her prior 8 position. (Doc. 90 at 15). In Breeden, the employer reassigned its sales accounts after the 9 plaintiff had notified the employer of her upcoming leave but before the leave. 646 F.3d 10 at 46. The plaintiff returned from maternity leave to “the same title, same salary, same 11 benefits, and significantly, the same accounts.” Id. at 47. Prior to the reassignment, the 12 plaintiff had been one of the poorest performing salespeople; however, she afterwards 13 excelled with a substantial increase in sales and commissions. Id. at 45-46. The court 14 rejected the plaintiff’s complaints regarding the details of her post-reassignment 15 accounts, finding that they focused “on precisely the sorts of de minimis, intangible, and 16 unmeasurable aspect of a job” specifically excluded under the FMLA regulations. Id. at 17 52. In the present case, Plaintiff alleges that the post-leave assignment of accounts 18 materially affected her job performance and her commissions. Breeden is not helpful 19 here. 20 For these reasons, Plaintiff has shown that a genuine issue of material fact exists 21 as to whether she was restored to the same or equivalent position following her FMLA 22 leave.6 Accordingly, Defendant is not entitled to summary judgment on Plaintiff’s claim 23 for interference with her FMLA rights.7 24 5 25 26 27 28 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. 6 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). 7 The Court will address Plaintiff’s FMLA retaliation claim with Plaintiff’s other retaliation claims. - 12 - 1 D. 2 Defendant argues that it is entitled to summary judgment on Plaintiff’s claim for 3 4 Title VII Sex Discrimination sex discrimination under Title VII. (Doc. 90 at 16). 1. Legal Standard 5 “Title VII of the Civil Rights Act of 1964 forbids a covered employer to 6 ‘discriminate against any individual with respect to . . . terms, conditions, or privileges of 7 employment, because of such individual’s . . . sex.’” Young v. United Parcel Serv., Inc., 8 135 S. Ct. 1338, 1344 (2015). Discrimination on the basis of sex includes discrimination 9 on the basis of “pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 10 2000e(k). A plaintiff may prove a Title VII claim in one of two ways: First, she may 11 produce “direct or circumstantial evidence demonstrating that a discriminatory reason 12 more likely than not motivated the employer.” Surrell v. Cal. Water Serv. Co., 518 F.3d 13 1097, 1105 (9th Cir. 2008). Alternatively, and more commonly, the Court applies the 14 burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 15 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 - 13 - 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). - 14 - 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. - 15 - 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 - 16 - 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 - 17 - 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 - 18 - 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). - 19 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 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). 17 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. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 23 -

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