Allen v. HP Enterprise Services, LLC

Filing 55

MEMORANDUM OPINION & ORDER: That defendant's motion for summary judgment 33 is GRANTED. A separate judgment shall enter concurrently herewith. Signed by Judge William O. Bertelsman on 9/7/2018.(ECO)cc: COR

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON

CIVIL ACTION NO. 2:16-CV-147 (WOB-CJS)
ASHLEY ALLEN

PLAINTIFF

VS.

MEMORANDUM OPINION AND ORDER

HP ENTERPRISE SERVICES,
LLC

DEFENDANT

This diversity employment matter involves claims of wagebased sex discrimination brought pursuant to the Kentucky Civil
Rights Act, K.R.S. § 344 et. seq.
alleges

that

Hewlett

Packard

Ashley Allen (“Plaintiff”)
Enterprise

Services,

LLC

(“Defendant”) compensated Plaintiff’s male subordinates and peer
managers with higher pay increases throughout the duration of her
nearly twenty-year career with Defendant.
This matter is now before the Court on defendant’s motion for
summary judgment.

(Doc. 33)

The

Court

previously

argument on this motion and took it under submission.
and the parties submitted supplemental memoranda.

heard

oral

(Doc. 51),

(Docs. 52, 53).

After further study, the Court now issues the following Memorandum
Opinion and Order.

Factual and Procedural Background
1.

Defendant’s Corporate Structure

Defendant is a multi-national enterprise incorporated in the
state

of

Delaware

solutions to a

which

provides

information

technology

variety of corporate customers. 1

and

Defendant’s

internal corporate structure is highly-complex creating difficulty
in ascertaining where a particular employee falls within the
hierarchy

of

a

given

work

group.

A

written

and

visual

representation of this structure follows to aid comprehension of
this case’s specific facts.
a.

Job Family Group

The job family group is the broadest grouping under which
smaller job families fall within Defendant’s corporate structure.
Examples include: “Services” or “Human Resources.”

(Doc. 40-6,

PageID# 996, 1044.)
b.

Job Family

A job family refers to specific job divisions within a
broader job family group.

In this case, the applicable job

1

About Hewlett Packard Enterprise,
https://www.hpe.com/us/en/about.html (last visited May 17,
2018).
2

family group is referred to as Information Technology
Organization (“ITO”) Service Delivery. 2
c.

(Id. at 1044.)

Job Categories

Within each job family three general job categories exist.
They are:
(1) Support
Employees

can,

and

(2) Professional
do,

transition

between

throughout the duration of their employment.
d.

(3) Manager
each

category

(Id. at 1006.)

Job Category Subdivisions

Each job category subdivides into smaller groups based on the
employee’s experience, skill set, and decrease in the need for
supervision.

(Id. at 1011.)

Within the ITO Service Delivery job

family, job category subdivisions are listed as follows from least
to most experienced and from top to bottom:
Support

Professional

Manager

Base

Entry

Supervisor I

Primary

Intermediate

Supervisor II

Core

Specialist

Manager I

2

The ITO Service Delivery group provides “expertise for IT
infrastructure (e.g. servers, network), ([ ] (SAP)], and related
services (e.g. business continuity) throughout the lifecycle of a
deal
contractually
established
terms
and
conditions
and
established technical standards. (Doc. 40-6, PageID# 1044.)
3

Senior

Expert

Advanced

Master

e.

Manager II

Corporate Structure Overview (Graphic)
Services

Job Family Group:

Job Family:

Information Technology
Organization Delivery

Job Categories:
Support

Professional

Manager

Base

Entry

Supervisor I

Primary

Intermediate

Supervisor II

Core

Specialist

Manager I

Senior

Expert

Manager II

Advanced

Master

2.

Defendant’s Compensation and Pay Increase Scheme

Defendant is a “pay-for-performance” enterprise meaning that
employees do not receive automatic cost of living or pay increases.
(Id. at 994.)

Rather, Defendant awards merit increases at its

4

discretion with job performance being the central criterion for
such pay increases.

(Id.)

The nature of a new employee’s hiring dictates what their
base salary will be when joining Defendant.
acquired

via

merger,

Defendant

salary.

(Doc. 40-6 at 1040.)

matches

the

If the employee is
employee’s

prior

If Defendant hires an employee

outside of the merger context, Defendant considers local market
conditions, prior experience, and locality pay when establishing
a base salary. 3

(Id. at 993.)
a.

Pay Bands

Every employee receives a specific job title that corresponds
to a job category within a particular job family.

Each job title

and job category has a salary grade that is broken down into five
different pay bands. 4

(Id. at 1016.)

Hypothetically, an employee

could be coded as the following:

3

Although Defendant includes locality pay allocations in
determining an individual’s base starting salary, subsequent
changes in locality may or may not give rise to additional
compensation. (Doc. 40-6, PageID# 1020.)
4

The pay bands, themselves, are determined by looking at
competitors’ bands and salary ranges. (Doc. 40-6 at 1022.)
5

Specific Job
Title:

Job Category:

Service
Manager

Salary Grade:

M27

Manager I

Salary Range:

$90,000150,000

The pay bands overlap, but fundamentally work in the following
manner:
i.
ii.
iii.
iv.
v.

Pay
Pay
Pay
Pay
Pay

Band
Band
Band
Band
Band

I: Beginning to 20% of salary range
II: 20-40% of salary range
III: 40-60% of salary range
IV: 60-80% of salary range
V: 80-100% of salary range

(Id. at 1017.) Although outliers do exist — with employees falling
below Band I or above Band V in particular instances — Defendant
makes a concerted effort to pool employees within the middle of
Band III.

(Doc. 40-1, PageID# 689; Doc. 40-6 at 989.)
b.

Pay Bands (Graphic)

Hypothetical Salary Range: Depending on performance reviews,
an employee falling within a $90-150,000 pay range may fall within
the following pay bands throughout their employment tenure:

Salary
Band I
$90$102,000

Salary
Band II
$102,000$114,000

Salary
Band III
$114,000$126,000

6

Salary
Band IV
$126$138,000

Salary
Band V
$138,000$150,000

c.

Pay or Merit-Based Increases

As noted, employees become eligible for merit or performancebased

increases

subject

to

Defendant’s

funding

and

internal

evaluation process conducted at the end of Defendant’s fiscal year
-

typically

in

November.

The

threshold

consideration

Defendant’s profitability during the preceding fiscal year.
40-6 at 1020.)

is

(Doc.

If profits are sufficient, Defendant allocates

specific sums for merit-based increases to managers to distribute
to their subordinates or direct-reports. (Doc. 40-4, PageID# 895.)
These allocations are colloquially referred to as “pots,” and each
manager possesses full autonomy to allocate the pot among their
direct reports. 5

(Id. at 896.)

At the same time, managers conduct a performance review of
their direct reports.

Each direct report is rated on a five-point

system as follows:
i.

Significantly Exceeds Expectations

ii.

Exceeds Expectations

iii. Achieves Expectations

5

The size of each allocation pot varied between managers based,
in part, on that manager’s number of direct reports, their
experience levels, and gross salaries. (Doc. 40-4 at 932.)
7

iv.

Partially Achieves Expectations

v.

Did Not Achieve Expectations

(Doc. 40-3, PageID# 852-53.)

Direct reports are only compared

with members of a peer group to ascertain their performance
rating (e.g. Masters are only compared with fellow Masters).
(Id. at 856).
Once

managers

assess

their

direct

reports’

performance,

calibration meetings occur to determine how to finalize ratings
and distribute the merit increase pot in a meaningful manner.
(Doc. 40-4 at 928.)

At this point, funds could be transferred

between managers’ pots to ensure that high performing direct
reports on teams with limited budgets could receive an increase
commensurate with their performance, especially where those direct
reports were at the low ends of salary bands.

(Id. at 929.)

To

aid their determinations, managers have access to their direct
reports’ salary data.

Peer data that compare managers to each

other are not available.

(Id. at 902, 934.)

Given the interplay between pay band and merit increase system
information, direct report employees may earn more than their
managers.

For

example,

a

high

performing

employee

with

a

Professional-coded job at the Master level may earn more than a

8

similar performing Service Manager coded at the M1 level because
Defendant has assessed higher pay bands for Master-level jobs and
values a technical skill set over general managerial skills.
3.

Plaintiff’s Employment

Between

August

1998

and

April

2015,

Defendant

Plaintiff in both technical and managerial positions.

employed

(Doc. 40-1

at 641.) From 1997-2005, Plaintiff was employed as a ProfessionalExpert after being outsourced from Proctor & Gamble (“P&G”).

(Id.

at 623.) In this capacity, Plaintiff was responsible for the North
American

core

manufacturing

critical system.

(Id.)

system

–

P&G’s

largest

and

most

Plaintiff’s primary tasks were to manage

the system, implement updates where required, fix incidents that
arose in a timely fashion, and oversee projects related to core
manufacturing.

(Id. at 647.)

In late 2006 or early 2007, Defendant promoted Plaintiff to
a managerial position at the M1 salary grade.
Plaintiff

did

not

receive

a

pay

(Id.)

increase.

At that time,

(Id.)

Despite

management’s pledge that a pay increase was forthcoming, Plaintiff
claims that she was never compensated.

(Id.)

In her new position,

Plaintiff’s primary responsibility was to manage the members of
the North America Enterprise Resource Planning (“ERP”) team. (Doc.
40-4 at 879.)
performance

Specifically, Plaintiff was tasked with completing
evaluations

of

team
9

members

and

resourcing

and

staffing direct reports on applicable projects throughout the
North American time zone.

(Id. at 880.)

Plaintiff’s secondary

responsibilities involved escalation management. 6

(Id. at 882.)

In her escalation role, Plaintiff ensured that the proper direct
reports were working on the issue, and she served as an interface
between the customer and upper management to keep them informed of
the team’s progress.

(Id.)

fifteen direct reports.

Plaintiff managed between ten and

(Doc. 40-1 at 641.)

To highlight the distinction between her positions, Plaintiff
has emphasized the managerial nature of her latter role.

She

indicated that at this point in her career she “didn’t do the
technical work much at this point, but, obviously, the knowledge
that

[she]

gained

was

useful

in

helping

manage

incident

resolution.” (Id. at 649.) Plaintiff testified that her technical
foundation was helpful in understanding the day-to-day work that
her direct reports conducted to manage her team effectively.

(Id.

at 645.)
By all accounts, Plaintiff’s job performance was sterling
under multiple different managers.

(Doc. 40-4 at 891.)

Plaintiff

received a “Significantly Exceeding Expectations” rating every
year for ten years during one portion of her employment – a rating

6

Escalations are an information technology term of art referring
to outages that require quick response times because the outages
are related to business critical functions. (Doc. 40-3 at 831.)
10

reserved for the top ten to twenty percent of employees.
40-1 at 626.)

(Doc.

At various unidentified points in her tenure,

Plaintiff continually petitioned at least three of her direct
supervisors that her salary was not commensurate with her education
and experience.
discussions,

(Id. at 627.)

management

At some point during these

acknowledged

that

Plaintiff

was

being

compensated at the low end of her salary curve and that they would
take steps to address this disparity.

(Id.)

These efforts,

however, proved fruitless as upper management denied the request
for an equitable pay increase on the ground that Defendant did not
have sufficient allocations for the raise.
In

2011,

Plaintiff’s

learned

that

(Id. at 628.)
multiple

male

direct

reports and several managerial peers were being compensated at
higher levels. 7 (Id. at 611.) One of those peers, Douglas McKinley
(“McKinley”), allegedly performed the same duties and reported to
the same supervisor as Plaintiff.

(Doc. 40-4 at 883.)

Plaintiff

was apprised of this information via a spreadsheet transmitted to
her via e-mail from Shibu Chakkoria (“Chakkoria”), her direct
supervisor, during a ratings and review period.

(Doc. 40-1 at

611.) Normally, Defendant only provides managers with their direct
reports’

salary

information,

but

7

this

spreadsheet

included

Between 2006-2015, Plaintiff maintains that Defendant compensated
her at Pay Band I for her M1 position. (Doc. 40-1 at 633.)
11

Plaintiff’s managerial peers as well. 8

The record is undeveloped

as to whether Plaintiff lodged a formal complaint with human
resources or took action beyond the filing of the current lawsuit.
Plaintiff also alleges that her tenure was marked by instances
of

derogatory

gender-based

comments

supporting

a

discriminatory animus for limiting her compensation.

possible
Plaintiff

maintains that middle managers would directly question Plaintiff
during leadership meetings concerning her children.

(Id. at 629.)

These questions routinely concerned setting meeting times between
1:00 and 3:00 P.M., prompting these managers to make derogatory
comments about Plaintiff’s childcare needs that became something
of a running joke among management.

(Id.)

Plaintiff also alleges

that Bhargava made derogatory comments about Plaintiff’s children
during a weekend rapid response escalation conference call asking
Plaintiff to quiet her children when they were not present.
at 629-630.)

(Id.

Plaintiff contends that such comments were not

directed at male employees who had children.
Unlike

her

allegations

of

sex-based

wage

discrimination,

Plaintiff reported her discomfort with these comments to her direct
supervisors.

(Id. at 634.)

Both Chakkaria and Christian Todd

8

Both Chakkoria and Sumit Bhargava (“Bhargava”), a middle manager,
believe that the spreadsheet has been doctored because Defendant
would have never provided either of them with salary information
regarding their peers since they are not involved in making those
pay increase determinations. (Doc. 40-3 at 843.)
12

(“Todd”), Plaintiff’s peer manager at the time, acknowledged that
the comments were inappropriate, but they were limited in their
response as many of these comments came from their own direct
supervisors.
complaints

(Id.

she

at

lodged

635-36.)

Plaintiff

against

middle

believes

management

that

cost

the

her

a

promotion that ultimately went to Todd despite being told that she
would receive that opportunity.

(Id. at 635.)

Defendant terminated Plaintiff’s employment in April 2015
after becoming aware that Plaintiff had concealed her marriage to
one of her direct reports in direct violation of Defendant’s Code
of Business Conduct. 9

(Doc. 33-1, PageID# 133.)

At some point

thereafter, Plaintiff transmitted the spreadsheet in question to
the Equal Employment Opportunity Commission (“EEOC”) in connection
with a charge of discrimination. (Doc. 40-2 at 808-11.)
In August 2016, Plaintiff filed suit in Boone County Circuit
Court, and defendants removed the case to this Court on the basis
of diversity jurisdiction.

(Doc. 1-1; Doc. 1-3.)

discovery,

for

Defendant

moved

summary

judgment

Following
on

all

of

Plaintiff’s claims.

9

Plaintiff does not challenge the grounds for her termination in
this lawsuit.
13

Analysis
Defendant

advances

judgment motion.

two

primary

arguments

in

its

summary

First, defendant argues that since Plaintiff’s

sex discrimination claim has been brought pursuant to K.R.S. §
344, the statute of limitations is five years to determine which
discrete pay decisions are applicable in this situation.

(Doc.

33-1, PageID# 134.) Second, defendant argues that Plaintiff cannot
establish a prima facie case of sex-based wage discrimination.
1. Applicability of Kentucky Civil Rights Statute and
Statute of Limitations
The parties agree that a claim under K.R.S. § 344 is subject
to a five-year statute of limitations and that the applicable
limitations period in this matter runs from July 25, 2011 (five
years prior to the filing of Plaintiff’s complaint herein) through
April 30, 2015 (Plaintiff’s final day of employment). 10

(Doc. 33-

1 at 134, 145; Doc. 39-1 at 409.)
The parties do not agree, however, whether it is Plaintiff’s
individual pay increases or her total compensation which should be
analyzed vis a vis her male comparators.

10

Kentucky law indicates that actions “upon a liability created
by statute”, such as the Kentucky Civil Rights Act, “shall be
commenced within five (5) years after the cause of action accrued.”
K.R.S. 413.120(2).
14

At the outset, Kentucky law provides scant guidance as to how
courts typically address acts of wage-based sex discrimination
where allegedly discriminatory pay increases subsequently taint
overall compensation figures, creating total wage disparities.
Currently,

Kentucky

law

mandates

that

“an

action

for

discrimination or retaliation accrues on the date the act of
discrimination or retaliation occurs.” 11

Nat’l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 110 (2002); see also Walker v.
Commonwealth,

503

S.W.3d

165,

172

(2016)

discrete acts framework under Kentucky law).

(applying

Morgan’s

This rule applies to

“any discrete act of discrimination, including discrimination in
“termination,

failure

refusal to hire.”

to

promote,

denial

of

transfer,

Ledbetter, 550 U.S. at 621 (2007).

[and]

As in a

Title VII case, liability may only arise for discrete acts that
occurred within the appropriate time period.

Morgan, 536 U.S. at

114.
Furthermore, “a new violation does not occur, and a new
charging

period

does

not

commence,

11

upon

the

occurrence

of

Defendant’s argument concerning the application of the Ledbetter
standard in this case is accurate. K.R.S. § 344 has not been
explicitly amended to adopt the provisions of the Lilly Ledbetter
Fair Pay Act, Pub. L. No. 111-2, 123 Stat. 5 (2009).
Kentucky
courts have continued to apply Ledbetter as recently as 2016. See
Walker v. Commonwealth, 503 S.W.3d 165, 172 (2016) (applying
Ledbetter).
15

subsequent

nondiscriminatory

acts

that

resulting from past discrimination.”
Yet,

“where

a

plaintiff

can

entail

adverse

effects

Ledbetter, 550 U.S. at 628.

establish

that

the

alleged

discriminatory act or series of acts constitutes a ‘continuing
violation,’ principles of equity allow the limitations period to
run anew from each succeeding discriminatory action.” 12

Walker,

503 S.W.3d at 172.
Here, it appears that Plaintiff is attempting to rely on
non-discriminatory compensation decisions that fall outside of the
limitations

period

to

support

her

current

wage-based

sex

discrimination claim by advancing a “total compensation” argument.
(Doc. 39-1 at 409).
First,

This theory is not well taken.

utilizing

total

compensation

as

a

discrete

pay

decision contravenes Supreme Court authority that liability may
only arise for discrete acts that occur within the applicable
limitations period.

Morgan, 536 U.S. at 114.

Here, Defendant set

Plaintiff’s base salary in 1998 and this decision created the
baseline for the subsequent merit increases she received during
her employment.
falls

outside

While the 1998 determination, itself, clearly
the

five-year

limitations

12

period,

it

became

There is no continuing violation in this case.
Each of the
merit-based pay increases that Plaintiff challenges are “easy to
identify” and were distinct in time and circumstance. Walker, 503
S.W.3d at 173.
16

intertwined with later merit increases that Defendant awarded
Plaintiff,

which

resulted

in

Plaintiff’s

total

compensation.

Therefore, since Plaintiff only received merit increases during
the limitations period, utilizing her total compensation figures
would necessarily encompass the base salary decision made outside
the limitations period.

Stated differently, the 1998 decision is

not a distinct pay decision made during the limitations period.
Second, Supreme Court precedent cautions that courts should
not

automatically

decisions

other

ascribe
than

discriminatory

those

about

specifically made such allegations.

which

intent
the

to

employment

plaintiff

has

Ledbetter, 550 U.S. at 628;

see United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977) (declining
to take United’s discriminatory intent in 1968, when it discharged
the plaintiff due to her sex, and assign that intent to its later
act of neutrality applying its neutrality system). In other words,
if an employer acted with a discriminatory animus at one point in
an employee’s tenure, it does not mean that it did so on other
occasions.
Plaintiff has adduced no evidence that her 1998 base salary
determination was motivated by sex-based discriminatory animus.
She alleges only that at some point later in her employment she
suspected that Defendant was compensating her at lower levels than

17

her education, experience, and performance reviews warranted. 13
(Doc. 40-1 at 627.)

Plaintiff’s sex-based wage discrimination

suspicions were allegedly only confirmed in 2011 when Plaintiff
came into possession of a spreadsheet showing higher compensation
of male subordinates and peers. (Id. at 615.)
Given the Supreme Court’s guidance in the area, the Court
concludes that it must use the merit pay increases which occurred
during the limitations period as the discrete pay decisions as the
basis for plaintiff’s claim, rather than the total compensation
figures which would include the non-actionable 1998 base pay
decision.
2.

Prima-Facie Case of Wage-Based Sex Discrimination

The Supreme Court of Kentucky interprets the Kentucky Civil
Rights

Act

consistently

counterparts.

its

federal

anti-discrimination

Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492,

495 (Ky. 2005).
Here,

with

Plaintiff

burden-shifting

In this case, that counterpart is Title VII.
relies
scheme.

exclusively
(Doc.

39-1

on
at

the

McDonnell

400.);

see

Id.

Douglas
Allen

v.

Ingersoll-Rand Co., No. 1:96-cv-6-M, 1997 WL 579140 *5 (W.D. Ky.
June 17, 1997) (applying the McDonnell Douglas burden shifting

13

Notably, Plaintiff does not argue that she suspected Defendant
was compensating her at lower levels compared to male subordinates
and peers. Plaintiff simply asserts that her compensation was not
commensurate with her education and professional experience.
18

scheme to wage-based sex discrimination claims brought under the
Kentucky Civil Rights Act.)
The parties contest only two elements of the prima facie case:
(1) whether Plaintiff was subjected to an adverse employment
action, and (2) whether Defendant treated Plaintiff differently
than

similarly-situated

class.

individuals

outside

of

the

protected

See Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th

Cir. 2006).
a. Adverse Employment Action
In the Title VII context, an adverse employment action is one
that “constitutes a significant change in employment status, such
as

hiring,

firing,

failing

to

promote,

reassignment

with

significantly different responsibilities, or a decision causing a
significant change in benefits.”

Burlington Indus. v. Ellerth,

524 U.S. 742, 761 (1998); see also Lentz v. City of Cleveland, 333
F. App’x 42, 57-58 (6th Cir. 2009).
Simply put, there can be no adverse employment action where
Plaintiff’s merit increases between 2012-2015 either significantly
outpaced all or, in a single limited instance, fell slightly below

19

only

one

of

her

male

comparators.

The

below

brief

graphic

emphasizes this point: 14
Employee

Merit
Increase

Merit
Increase

Merit
Increase

2014

Merit

2015

Increase
2012
2013

$7,500.01

$4,000.00

None

$3,511.96

Timothy
Bahorik

None

None

None

Not
Applicable

Jason

$2,945.76

$1,011.36

None

$2,043.28

Rizwan
Zahoor

None

None

None

Not
Applicable

Himanshu
Garg

None

None

None

None

Gordon
Shlegel

None

None

None

None

Ihab
Abuelenein

$4,138.23

None

None

None

James
Dimapasoc

None

None

None

None

Anthony
Holman

$1,860.00

$948.60

None

$1,916.36

Ashley
Allen

Hobson

14

The graphic is drawn from Exhibit I of Defendant’s Summary
Judgment Motion (Doc. 35-1, PageID# 241.)
20

Michael
Howell

$6,531.00

$1,996.62

None

$2,036.35

Eric Lanam

$5,462.00

$4,250.00

None

$4,013.98

Doug
McKinley

$1,000.01

$1,400.00

None

None

Accordingly,

there

was

no

adverse

change

in

Plaintiff’s

employment status during the limitations period.
b.

Comparison Between Similarly-situated Employees

Plaintiff has produced evidence of eleven male employees who
she alleges are comparators — ten subordinates and one alleged
peer.

Information

related

to

these

comparators’

job

responsibilities, salary, and performance evaluations are attached
as a separate appendix (Appendix I), along with a chart related to
these employees’ merit-based increases.
However, Plaintiff cannot establish that she was similarlysituated to the eleven male comparators.

To make such a showing,

Plaintiff is obliged to present evidence that she was “similarly
situated

in

all

relevant

respects.”

Board

of

Regents

v.

Weickgenannt, 485 S.W.3d 299, 308 (Ky. 2016) (citation omitted).
That is, plaintiff must demonstrate that “all relevant aspects of
[her] employment situation are nearly identical to those of the
employees who [s]he alleges were treated more favorably.”
21

Id.

To prove that Plaintiff performed work that was “nearly
identical” to her male comparators she must demonstrate that the
performance

of

responsibility.
Cir.

1981).

each

job

required

equal

skill,

effort,

and

Odomes v. Nucare, Inc., 653 F.2d 246, 250 (6th
Here,

“skill

includes

such

considerations

experience, training, education, and ability.

as

Effort refers to

the physical or mental exertion necessary to the performance of a
job.

Responsibility

concerns

required in performing a job.”

the

degree

of

accountability

EEOC v. Universal Underwriters

Ins. Co., 653 F.2d 1243, 1245 (8th Cir. 1981).
Applying this analysis, it is clear that Plaintiff was not
performing work “nearly identical” to her male comparators.

At

the outset, Defendant coded Plaintiff’s job as a Manager at the M1 level during the limitations period in contrast to her male
comparators who were coded as Professionals at the Specialist,
Expert, and Master levels.

While title distinctions are non-

dispositive

whether

situated,

in

the

determining
evidence

is

this

employees

matter

are

demonstrates

similarlyimportant

distinctions between these various job functions.
By Plaintiff’s own admissions, it is clear that her primary
task was people management.

Her position involved staffing North

American time zone subordinates on projects and assessing their
performance.

(Doc.

40-4

at

880.)

22

Likewise,

her

secondary

escalation
staffing

management
team

role

members

primarily

with

unexpected service outages.

the

involved

requisite

(Id. at 882.)

identifying

skill

to

and

address

Plaintiff testified

that “she didn’t do the technical work much at this point” and
that she “would assist . . . but [ ] always made sure to have
people

involved

responsibility.”
In

because

technical

work

was

their

(Doc. 40-1 at 649) (emphasis added.)

contrast,

specialists

the

with

Plaintiff’s

varying

levels

technology service delivery.

comparators
of

expertise

were
in

technical
information

For instance, Eric Lanam reported to

Plaintiff during a portion of the limitations period and described
himself as subject matter expert focused on running a particular
technology.

(Doc. 40-5 at 955.)

Notably, Defendant subsequently

promoted Lanam to a management escalation role and distinguished
this role from his former position, noting that his primary task
became “managing [ ] resources and escalating to off shift if
needed.”

(Id. at 958) (emphasis added.)

Likewise, Professional-Experts Jason Hobson, Michael Howell,
Himanshu Garg, Anthony Holman, James Dimapasoc, Gordon Schlegel,
Rizwan Zahoor, Ihab Abuelenein focused on technical management and
project

work,

respectively.
715, 722, 723.)

core

manufacturing,

and

various

SAP

systems

(Doc. 40-1 at 653, 681-85, 686-87, 704, 706, 713,
Professional-Specialist Timothy Bahorik was also
23

involved

in

the

same

type

of

technical

work

as

his

Expert

counterparts, but he lacked their high level of technical mastery.
(Id. at 720.)
Douglas McKinley deserves separate consideration from the
above comparators as Plaintiff identifies him as a peer with the
exception that Plaintiff managed more systems and subordinates.
(Id. at 694)

However, this characterization does not comport with

the record. Chakkoria testified that McKinley was a subject matter
expert who possessed authority in certain technologies and is
described as having a “completely different role[]” when compared
to Plaintiff. 15

(Doc. 40-4 at 887.)

Moreover, Lanam testified

that McKinley was a “senior architect, scripting resource” with a
technical escalation skill set superior to Plaintiff.

(Doc. 40-

5, PageID# 943.)
Based upon this evidence, it is clear that Plaintiff was not
similarly

situated

to

these

employees.

Plaintiff’s

responsibilities vastly differed from those of her comparators in
that she was responsible for personnel management rather than
application of technical skills.

Similarly, it is undisputed that

skill differences existed between Plaintiff, her subordinates, and
her

self-identified

peer.

In

15

sum,

Plaintiff’s

employment

This would explain McKinley’s 28-Master rating identifying him
as a technical expert.
24

responsibilities

throughout

the

limitations

period

varied

considerably from the male comparators, and plaintiff has thus not
satisfied this prong of the prima facie case.
b. Legitimate Non-Discriminatory Basis for Wage Disparity
Assuming that Plaintiff had established a prima facie case of
wage discrimination, Defendant nonetheless has demonstrated a
legitimate non-discriminatory basis for any wage disparity based
on its compensation scheme.
scheme

involves

a

variety

Defendant acknowledges that its
of

factors

that

are

taken

into

consideration when assessing an employee’s performance:
[A]ffordability of the company, how
well the company did until the end
of the year . . . The second factor
would be how the individual did in
their year in terms of their
performance appraisal . . . Then the
third is . . . where in the salary
curve they are . . . it’s natural if
certain people, if they’re maxed out
in their salary curves, they would
get nothing.
If there are people
who are lower down on the salary
curves they would get the salaries,
and then from time to time there are
certain
directives
where
the
company can say there are no salary
raises for [the] US.”
(Doc. 40-3 at 850.)

Additionally, “tenure; how you came into a

company, local market conditions, retention, and attraction of
local talent” make it impossible for all “your highest rated
individuals would be the highest paid in the company.”

25

(Doc. 40-

6 at 993.)

It also strains logic to find that Defendant’s

compensation scheme was discriminatory where Plaintiff was the
individual assessing her comparators and making critical decisions
regarding the amount of their merit increases.
“Generally, a wage system which sets different grades for
each position type and allocates a wage range is acceptable if the
decisions are based on non-discriminatory factors.”

Allen, 1997

WL 579140 at *6; see Cox v. Home Ins. Co., 637 F. Supp. 300, 304
(N.D. Tex. 1985) (upholding a complex compensation scheme devoid
of discriminatory factors).

The above compensation factors do not

include any discriminatory elements.

In fact, the number of

variables would seem to prevent any discriminatory element from
having a role in setting compensation.
For all these reasons, the Court concludes that plaintiff has
failed to raise a triable issue on her claim for
Therefore, having reviewed this matter and considered the
parties’ arguments, and being sufficiently advised,
IT IS ORDERED that defendant’s motion for summary judgment
(Doc. 33) be, and is hereby, GRANTED.
enter concurrently herewith.

26

A separate judgment shall

This 7th

day of September, 2018.

27

Appendix I

Employee
Name:
Ashley Allen

Employee
Title:
SVC-ITO
Service
Delivery

Management
Level:
I-Manager

Subordinate/Peer
to Plaintiff:
Not Applicable

Job
Descrintion:
Complete
performance
evaluations of
North
American ERP
team members
and resourcing
and staffing
direct reports
on applicable
projects
throughout the
North
American time
zone.
management
Escalation
Management

Jason Hobson

SVC-ITO
Service
Delivery

Professional
15-Expert

Subordinate

Technical
management
and project
work, core
manufacturing,
and various
SAP systems

Rating(s):
2011:
Significantly
Exceeds
Expectations
2012:
Significantly
Exceeds
Expectations
2013:
Significantly
Exceeds
Expectations

Total Base
Pay:
2011:
$92,700
2012:
$100,300
2013:
$104,200
2015:
$107,711

2014:
Significantly
Exceeds
Expectations
2012:
Exceeds
Expectations
2013:
Exceeds
Expectations
2014:
Exceeds
Expectations

2011:
$98, 191.97
2012:
$101, 137.33
2013:
$102,148.69
2015:
$104, 191.97
2015:
$120,000

Allen v. HP Enterprises LLC
Mot. Sum. J.
1

Appendix I
Eric Lanam

SVC-ITO
Service
Delivery

Professional
14-Master

Subordinate
initially and then
became Plaintiffs
peer.

Project
Management

2011:
99,071.01

Technical
management
and project
work, core
manufacturing,
and various
SAP systems

2012:
104,533,01
2013:
108,783.01
2015:
$112,000
2015:
$130,000

Michael
Howell

SVC-ITO
Service
Delivery

Professional
27-Master

Subordinate

Technical
management
and project
work, core
manufacturing,
and various
SAP systems

2011:
$93,300
2012:
$99,631.00
2013:
$101,827.62
2015:
$103,863.97

Himanshu Garg

SVC-ITO
Service
Delivery

Professional
15-Expert

Subordinate

Technical
management
and project
work, core
manufacturing,
and various
SAP systems

2011:
Exceeds
Expectations
2012:
Exceeds
Expectations
2013:
Achieves
Expectations
2015:
Achieves
Expectations

Allen v. HP Enterprises LLC
Mot. Sum. J.
2

2011:
$109,141.65
2012:
$109,141.65
2013:
109, 141.65
2014:
$110,636.89

2015:
$111,837.45

Appendix I
Anthony
Holman

SVC-ITO
Service
Delivery

Professional
15-Expert

Subordinate

Technical
management
and project
work, core
manufacturing,
and various
SAP systems

2011:
Achieves
Expectations
2012:
Exceeds
Expectations
2013:
Exceeds
Expectations

2011:
$93,000
2012:
$94,860
2013:
$95,808.60
2015:
$97,724.96

2014:
Achieves
Expectations
James
Dimapasoc

SVC-ITO
Service
Delivery

Professional
27-Master

Subordinate

Technical
management
and project
work, core
manufacturing,
and various
SAP systems

2011:
Achieves
Expectations
2012:
Achieves
Expectations
2013:
Achieves
Expectations

2011:
$111,697 .18
2012:
$112,697.18
2013:
$112,697.18
2014:
$114,196.05

2014:
Achieves
Expectations
Gordon
Schlegel

SVC-ITO
Service
Delivery

Professional
15-Expert

Subordinate

Technical
management
and project
work, core
manufacturing,
and various
SAP systems

2015:
$114,094.62

2011:
Exceeds
Expectations

2011:
$95,000.04

2012:
Achieves
Expectations
2013:
Achieves
Expectations
2014:

Allen v. HP Enterprises LLC
Mot. Sum. J.
3

2012:
$104,500
2013:
$104,500
2014:
$109,504.80
2015:
$108,500.30

Appendix I
Achieves
Expectations
Rizwan Zahoor

SVC-ITO
Service
Delivery

Professional
15-Expert

Subordinate

Technical
management
and project
work, core
manufacturing,
and various
SAP systems

2011:
Achieves
Expectations
2012:
Achieves
Expectations
2013:
Partially
Achieves
Expectations
2014:
Partially
Achieves
Expectations

Timothy
Bahorik

Ihab
Abuelenein

SVC-ITO
Service
Delivery

SVC-ITO
Service
Delivery

Professional
16- Specialist

Professional
15-Expert

Subordinate

Subordinate

Technical
management
and project
work, core
manufacturing,
and various
SAP systems

2011:
Achieves
Expectations

Technical
management
and project
work, core
manufacturing,
and various
SAP systems

2011:
Significantly
Exceeds
Expectations

2013:
Significantly
Exceeds
Expectations
2014:

Mot. Sum. J.
4

2012:
$109,188.24
2013:
$109,188.24
2014:
$109,188.24
2015:
$109,188.24

2011:
$99,536.25

2012:
Achieves
Expectations

2012:
Significantly
Exceeds
Expectations

Allen v. HP Enterprises LLC

2011:
$109,188.24

2011:
$118,236.99
2012:
$122,373.42
2013:
$122,373.42
2014:
$122,373.42
2015:
$122,373.42

Appendix I

Exceeds
Expectations
2015:
Achieves
Expectations
Douglas
McKinley

SVC-ITO
Service
Delivery

Professional
28-Master

Peer

Senior
architect,
scripting
resource and
involved in
technical
escalation with
a skill set that
was superior to
Plaintiff's

2011:
Achieves
Expectations
2012:
Exceeds
Expectations
2013:
Exceeds
Expectations
2014:
Exceeds
Expectations
2015:
Achieves
Expectations

Allen v. HP Enterprises LLC
Mot. Sum. J.
5

2011:
$123, 183.40
2012:
$124,183.41

2013:
$125,583.41
2014:
$130,606.84
2015:
129,602.08

Appendix I

Merit Increase Comparison Graph

Employee

Merit Increase
2012

Ashley Allen
(Plaintiff)

Merit Increase
2014

Merit Increase
2015

$7,500.01

Merit
Increase
2013
$4,000.00

None

$3,511.96

Timothy Bahorik

None

None

None

Not Applicable

Jason Hobson

$2,945.76

$1,011.36

None

$2,043.28

Rizwan Zahoor

None

None

None

Not Applicable

Himanshu Garg

None

None

None

None

Gordon Shlegel

None

None

None

None

Ihab Abuelenein

$4,138.23

None

None

None

James Dimapasoc

None

None

None

None

Anthony Holman

$1,860.00

$948.60

None

$1,916.36

Michael Howell

$6,531.00

$1,996.62

None

$2,036.35

Eric Lanam

$5,462.00

$4,250.00

None

$4,013.98

Doug McKinley

$1,000.01

$1,400.00

None

None

Allen v. HP Enterprises LLC
Mot. Sum. J.
6