Conroy v. Hewlett-Packard Company
Filing
46
OPINION and ORDER - Defendant's motion 28 for summary judgment is GRANTED with regard to Conroy's First Claim for Relief for gender discrimination and DENIED on Conroy's Second Claim for Relief for retaliation under OR.REV.STAT.659A.230 and 659A.199. IT IS SO ORDERED. DATED this 31st day of March, 2016, by United States Magistrate Judge John V. Acosta. (peg)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
GILLIAN CONROY,
Case No. 3:14-CV-01580-AC
Plaintiff,
OPINION AND
ORDER
v.
HEWLETT-PACKARD COMPANY,
a Delaware Corporation,
Defendants.
ACOSTA, Magistrate Judge:
Introduction
Plaintiff Gillian Conroy ("Conroy") filed this lawsuit against her former employer, HewlettPackard Company ("Hewlett"). The claims, as set forth in the First Amended Complaint filed
November 3, 2014, (the "Complaint") are for gender discrimination and retaliation under state law.
Hewlett has filed a motion for summary judgment on both claims. For the reasons set forth below,
summary judgment on Conroy's retaliation claim based on OR. REV. STAT. 659A.199 and OR. REV.
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STAT. 659A.230 is denied, and summary judgment on Conroy's gender discrimination claim based
on OR. REV. STAT. 659A.030 is granted.
Preliminary Procedural Matters
As a preliminary matter, the court addresses Hewlett's evidentiary objections. In its Reply
in Support of Summary Judgment, Hewlett objects to numerous portions of Conroy's deposition and
declaration, as well as exhibits offered by Conroy in support of her summary judgment opposition.
In response, Conroy asserts her evidence is based on personal knowledge and falls under applicable
hearsay exceptions.
A trial court can only consider admissible evidence in ruling on a motion for summary
judgment. Orrv. Bank ofAm., NT &SA, 285 F.3d 764, 773 (9th Cir. 2002). For summary judgment
purposes, a declaration is admissible if it is "made on personal knowledge, set[ s] out facts that would
be admissible in evidence, and show[ s] that the ... declarant is competent to testify on the matters
stated." FED. R. C!V. P. 56(c)(4) (2015). In ruling on a motion for summary judgment, the court
will consider the admissibility of the proffered evidence's contents, not its form. Fraser v. Goodale,
342 F.3d 1032, 1036 (9th Cir. 2003).
I. Objections pertaining to Conroy's personal opinions of her job skills, duties. performance. and
treatment in the workplace
Hewlett objects to various statements - taken from Conroy's deposition, declaration, and
exhibits offered by Conroy in support of her summary judgment opposition - in which Conroy
asserts either that: (1) she was hired into an incorrect job; (2) her job skills qualified her for a
different job; (3) she should have had a higher rating on her performance reviews; or (4) she was
discriminated against. Pursuant to Rule 601 of the Federal Rules of Evidence ("Rule 602"), Hewlett
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maintains that Conroy lacks personal knowledge to make such statements.
Rule 701 of the Federal Rules of Evidence ("Rule 701 ") permits a lay person to offer
testimony in the form of an opinion ifit is "(a) rationally based on the witness's perception; (b)
helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not
based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Rule
701 has a firsthand knowledge requirement, which can be met if the witness demonstrates firsthand
knowledge or observation. United States v. Lopez, 762 F.3d 852, 862 (9th Cir. 2014). The personal
knowledge requirement under Rule 602 is the same as that under Rule 701(a). Id. at 864.
Conroy's personal opinions regarding her job duties, job skills, performance ratings, and
whether she was discriminated against will be considered by the court. Conroy has nearly six years
of experience working for Hewlett and, accordingly, has personal knowledge of her job description
as well as her job duties and experiences at the workplace. (Pl. Arn. Comp!.
ii 6 (ECF No.
18.).)
Conroy is competent to offer her opinion pe1taining to such matters. However, the court will
consider these statements as Conroy's personal observations and not as evidence that the stated
observations are true in fact.
II. Additional objection to a matter over which Conroy has personal knowledge
Hewlett objects to Paragraph 11 of Conroy's declaration in which she states George Dedes
("Dedes") started in her former role as a Worldwide Channel Manager earning a salary of $130,000
per year, despite having a less-extensive background and fewer credentials than she did. To the
extent Conroy is testifying to her opinion that Dedes' s background and credentials were inferior to
hers, she is entitled to do so. Conroy hired Dedes as a temporary employee while working in the
Worldwide Channel Manager position and, thereafter, had personal knowledge of the information
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provided to her. (Conroy Dep. 150: 12-19.) However, the court will consider these statements as
Conroy's personal observations and not as evidence that the stated observations are true in fact.
III. Objections pertaining to statements for which Conroy lacks personal lmowledge
Hewlett first objects to Conroy's statement that she discovered a man had been hired for a
Services Business Manager position on Hewlett's commercial side that Conroy sought and helped
create. (Conroy Dep. 25: 10-26:9.) This unidentified man, according to Conroy, lacked the necessary
experience for the position and was previously laid off by Hewlett. (Conroy Dep. 25:10-26:9.)
Conroy testified she neither saw firsthand, nor could she identify, the man who was hired for the
position she helped create. (Conroy Dep. 25:10-27:23.) In addition, despite her statement that this
man lacked the experience necessary for the position, Conroy also testified she never saw the man's
resume. (Conroy Dep. 26:24-27: 1.) Finally, Conroy does not, nor has she ever, worked in Hewlett's
Human Resources Department and, consequently, has no lmowledge ofHewlett' s actions or thoughts
when it comes to whom Hewlett chooses, or chose, to hire. Therefore, Hewlett's objection is
sustained.
Hewlett next asserts Conroy lacks personal knowledge to state Sheryl Foster ("Foster")
lacked an enterprise group hardware background. (Conroy Dep. 74:20-75:7.) Conroy worked with
Foster for a year. (Conroy Dep. 54:2-12.) If Conroy offered opinion testimony regarding her
perception of Foster's management skills during this period, Conroy would be competent to do so.
See FED. R. EVID. 701 (2015) (permitting a lay person to offer testimony in the form of an opinion
if it is rationally based on the witness's perception). However, Conroy does not provide any
information on her personal knowledge ofF oster' s employment background, let alone her enterprise
group hardware background. To the extent Conroy seeks to offer testimony regarding her knowledge
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of Foster's employment or enterprise group hardware background, Conroy is not competent to do
so. Hewlett's objection is sustained.
Third, Hewlett objects to Conroy's deposition testimony that Foster knew of Conroy's
complaints of pay equity and that Conroy had filed a sex discrimination claim against Hewlett.
(Conroy Dep. 66: 1-9.) Conroy states she does not know how Faster knew of Conroy's pay-inequity
or sex discrimination complaints. (Conroy Dep. 66:6.) Conroy does not offer evidence establishing
personal knowledge ofF oster' s awareness of Conroy's complaints. Hewlett's objection is sustained.
However, Conroy is permitted to rely on the statement made by Foster that she was made aware of
Conroy's sex discrimination claim against Hewlett. FED. R. CIV. P. 56(c)(l) (stating that a party
who is asserting a fact may cite to material in the record, including depositions).
Fourth, Hewlett objects to statements made by Conroy in her declaration. In Paragraph 7(a),
Conroy asse1ts, in an effort to fill the West Marketing Development Manager role, Hewlett was
looking for an employee with senior-level marketing experience, who was also competent to talk
solutions, hardware, and software with the sales team and with management. Conroy does not
provide any information on her personal knowledge of the type of employee Hewlett sought to hire
for the West Marketing Development Manager role. Finally, as stated, Conroy does not, nor has she
ever, worked in Hewlett's Human Resources Department and, consequently, has no knowledge of
Hewlett's actions or thoughts when it comes to whom Hewlett chooses, or chose, to hire. Hewlett's
objection is sustained.
Finally, in Paragraph 8, Conroy represents Stan Grant ("Grant") "was a products guy and had
never done marketing." (Conroy Deel. if 8 (ECF No.35).) Conroy does not provide any infonnation
on her personal knowledge of Grant's work background. Hewlett's objection is sustained.
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IV. Objections asserting Conroy misstates the facts
Hewlett asserts there are numerous instances in which Conroy misstates the facts, ts
misleading, or mischaracterizes the testimony. The court's duty in reviewing a summary judgment
motion is to look at the evidence presented to it by the parties and, initially, determine if there is a
genuine issue of material fact. FED. R. CIV. P. 56. The court limits its consideration of the facts to
those contained in the proffered evidence, not descriptions or summaries of fact found in the parties'
briefing. To the extent the statements made in the parties' briefing differ from the facts established
in the submitted depositions, declarations, and exhibits, the court will ignore the statements made
in the briefing.
V. Hearsay objections
Hewlett challenges as hearsay a number of out-of-court statements made by Conroy's
managers or superiors to Conroy. Hearsay is defined as an out-of-court statement, written or oral,
offered into evidence to prove the truth of the matter asserted. FED. R. EVID. 801 (2015). Hearsay
is admissible only if it qualifies as an exemption or exception to the general hearsay rule. FED. R.
EVJD. 802 (2015). The Ninth Circuit has generally applied the limitations found in the hearsay rule
to evidence offered by parties at the summary judgment stage. Orr v. Bank ofAm. NT & SA, 285
F.3d 764, 778 (9th Cir. 2002); Beyenne v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1182 (9th Cir.
1988). When a statement is hearsay within hearsay, or double hearsay, each statement must qualify
under some exemption or exception to the general hearsay rule. FED. R. EVID. 805 (2015); United
States v. Arteaga, 117 F.3d 388, 396 n.12 (9th Cir. 1997). A statement is not hearsay if it is offered
against a party and is "a statement by the party's agent or servant concerning a matter within the
scope of the agency or employment, made during the existence of the relationship." FED. R. EVID.
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801(d)(2)(D). However, this rule requires the proffering party to lay a foundation to show that an
otherwise excludable statement relates to a matter within the scope of the agent's employment.
Harris v. Itzhaki, 183 F.3d 1043, 1054 (9th Cir. 1999).
While the statements are made by managers or supervisors employed by Hewlett, making
them Hewlett's agents for certain matters, Conroy has not carried her burden to provide the court
with evidence that these private statements were made within the scope of the agents' employment.
Hewlett's objections are sustained.
Similarly, Hewlett challenges Conroy's statement that Patricia Koetting ("Koetting"),
Conroy's peer, informed her that Hewlett gave Jeremy Willenborg ("Willenborg") a director-level
position and a large pay raise in order to retain Willenborg, while, around the same time, Foster told
Conroy she could not be given a pay raise of more than two percent. (Conroy Dep. 57:19-58:5.)
Much like the above comments, Conroy has provided no indication that Koetting's statement was
within the scope ofKoetting's employment. As the proffering party, Conroy is required to lay the
foundation showing an otherwise excludable statement is within an agent's employment. As such,
Hewlett's objection is sustained.
Hewlett next objects to Conroy's discussion ofKoetting's conversations with Allison Cerra
("Cerra"), Foster, and other senior-level Hewlett officials, which allegedly addressed Ann Kroll's
("Kroll") lack of strategic awareness. (Conroy Dep. 218:4-10.) A lay opinion witness "may not
testify based on speculation, rely on hearsay or interpret unambiguous, clear statements." United
States v. Vera, 770 F.3d 1232, 1242 (9th Cir. 2014). There is no indication Conroy has firsthand
knowledge ofKoetting's conversations; instead, Conroy appears to be relying on speculation and
hearsay. Moreover, while the statements appear to be made by Hewlett's agents, Conroy is required
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to lay the foundation showing an otherwise excludable statement is within an agent's employment.
She has not done so, and Hewlett's objection is sustained.
In similar fashion, Hewlett objects to Conroy's deposition testimony in which she states an
employee in the Equal Employment Opportunity Commission's ("EEOC") Seattle office told her the
EEOC had notified Hewlett about her EEOC charge. (Conroy Dep. 206:3-9.) Conroy does not have
personal knowledge of the EEOC' s contact with Hewlett. To the extent Conroy relies on a statement
by an EEOC employee, that statement is hearsay and is inadmissible. Hewlett's objection is
sustained.
Hewlett also objects to Conroy's deposition testimony where she states she believes the core
of her account-based management position was left intact. (Conroy Dep. 201:18-24.) Conroy
believes this because the job title and description of the position were listed on Kroll 's Linkedln
profile. (Conroy Dep. 201 :25-203:7.) "To prove the content of a writing, recording, or photograph,
the original writing, recording, or photograph is required." FED. R. Evrn. 1002. Kroll's Linkedln
profile is the best evidence of its own content, and, therefore, Conroy's reference to the contents of
Kroll's Linkedin profile violates the best evidence rule. Hewlett's objection is therefore sustained.
Finally, Hewlett contests Conroy's assertion that Foster had been telling people about
Conroy's EEOC complaint and her "issues" with Conroy asking for raises. (Conroy Dep. 162:4-9.)
When asked how she knew Foster had been making such statements, Conroy responded that Cerra
discussed Foster's assertions in an e-mail sent to Hewlett's Human Resources Department. (Conroy
Dep. 162:4-9.) Conroy's reference to contents of an e-mail sent by Cerra violates the best evidence
rule. Medina v. Mu/taler, Inc., 547 F. Supp. 2d 1099, 1122 (C.D. Cal. 2007) (stating references to
the content of e-mails violates the best evidence rule).
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VI. Objections to Attachments A. B. and C of Conroy's declaration
Hewlett objects to Attachments A and B of Conroy's declaration, asserting the attachments
are hearsay. Attachment A is a modified version of Exhibit 6 from Cerra's Declaration, which is
Foster's compiled employee-evaluation form. Under each category of the evaluation fonn, Conroy
has changed the rating she and other employees on Foster's team received to the rating Conroy
believes each employee deserved to receive. In Attachment B, Conroy walks through each categmy
in the evaluation form and explains why she believes her and other employees' ratings should have
been different.
At the summary judgment phase, the court does not focus on the admissibility of the
evidence's form, bur rather the admissibility ofits contents. Fraserv. Goodale, 342 F.3d 1032, 1036
(9th Cir. 2003).
Thus, the court need not decide whether these attachments are themselves
admissible; it is sufficient ifthe contents of the attachments are admissible or could be presented in
admissible form at trial. Id.
To the extent Attachments A and B contain recitations of matters within Conroy's personal
knowledge and, therefore, contain statements that could be admitted at trial - for instance, through
personal testimony - the comi will consider Attachments A and B.
Hewlett also objects to Attachment C of Conroy's declaration, claiming Attachment C is
hearsay. Attachment C appears to be a printout of Hewlett's geographic pay policy, possibly taken
from its website.
For a printout of a website to admissible, it must be properly authenticated Under Rule 901 (a)
of the Federal Rules of Evidence. See Osborn v. Butler, 712 F. Supp. 2d 1134, 1146 (D. Idaho 2010)
(explaining a website printout must be properly authenticated for a court to consider it on summmy
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judgment). In Osborn, the defendant attached a website printout to an affidavit filed in support of
the defendant's motion for summaty judgment. Id. The court determined the defendant had properly
authenticated the website printout because the defendant provided the website address in the
affidavit, explained in the affidavit he had printed the website himself, and represented it had not
been altered or change from its original form. Id.
Conroy has failed to properly authenticate the website. Unlike Osborn, Conroy neither
provides the website address in an affidavit attached to the printout, nor does she state she printed
the website herself. And, perhaps most important, Conroy provides no representation that the website
has not been altered from its original form.
Moreover, even ifit were properly authenticated, the statements made in the website printout
are inadmissible hearsay. In Van Westrienen v. Americontinental Collection C01p., 94 F. Supp. 2d
1087, 1110 (D. Or. 2000), this court admitted contents of a website for purposes of a summary
judgment motion as an admission of a party opponent because the defendant's correspondence
identified that it had published the website's written contents. But here, neither Conroy nor Hewlett
has identified Hewlett as the publisher of the website's wTitten contents. Conroy states only that
Attachment C describes how Hewlett's pay policies work, not who authored the website's written
contents. Without verification that Hewlett authored the contents, the written contents ofthe website
are inadmissible hearsay. Therefore, Hewlett's objection is sustained.
VIL Irrelevant Evidence
Hewlett objects to a statement made by Conroy in Paragraph 7(a) of her declaration on
personal knowledge grounds. In Paragraph 7(a), Comoy states that, upon being laid off, Kroll
wanted to know how to take over Comoy's launch of a national partnership with Fusion-io to
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promote Hewlett's big data solutions. According to Conroy, the launch took marketing strategy and
execution know-how. The court need not address Hewlett's objection because it finds the evidence
irrelevant.
Evidence is relevant if it has "any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence." FED. R. EVID. 401 (2015). Naturally then, in an employment-discrimination
and whistleblowing case, that means evidence that has a tendency to show either discrimination in
the workplace or retaliation. To determine whether Conroy's proffered evidence is relevant, it is
helpful to look at the requirements necessary to show employment discrimination or retaliation. See
United States v. Espinoza-Baza, 647 F.3d 1182, 1189 (9th Cir. 2011) (stating that, to determine
relevancy, it is particularly helpful to examine the requirements necessary to show the alleged
violation). To establish discrimination, Conroy needs to show that similarly situated employees were
treated more favorably than she. Earl v. Neilson Media Research, Inc., 658 F.3d 1108, 1114 (9th
Cir. 2011 ). To establish retaliation, Conroy must show she was engaged in a protected activity, she
was thereafter subjected to an adverse employment action by her employer, and a casual link
between the protected activity and the adverse employment action exists. Manatt v. Bank ofAm.,
NA., 339 F.3d 792, 800 (9th Cir. 2003).
That Kroll wanted to know how to take over Conroy's national partnership launch with
Fusion-io provides little in the way of evidence indicating either Conroy was treated less favorably
than similarly situated employees or Conroy was engaged in a protected activity and Hewlett
thereafter subjected Conroy to an adverse employment action. Therefore, the evidence is irrelevant,
and Hewlett's objection is sustained.
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Background
Hewlett hired Comoy into its Printing and Personal Systems Organization ("PPS") on
October 15, 2007, as an Americas Channel Alliance Manager ("ACAM") in Vancouver,
Washington. (Comoy Deel.
if 2; Busse Deel Ex. 17 (ECF No. 36).) Comoy received high marks
as an ACAM, where she was described by her manager as an employee who "consistently exceeds
goals with notable positive impact." (Busse Deel. Ex. 12, at 4.) By July 2012, Comoytransitioned
into anew position within Hewlett's PPS: Worldwide Channel Manager ("WWM"). (Busse Deel.
Ex. 17; Randell Deel.
if 5 (ECF No. 31.).) As a WWM, Comoy also met and often exceeded
expectations, again receiving high performance reviews. (Busse Deel. Ex. 15.)
In 2012, her
manager described Conroy as an employee who "achieves results with her contributions. She is
amazing at pulling together a wide variety of teams and producing really outstanding results."
(Busse Deel. Ex. 15, at 5.)
However, as both an ACAM and WWM, Comoy believed she was underclassified and
underpaid. (Comoy Dep. 32:1-33:21.) Despite being classified as an Expert M-27 in both roles,
Comoy believed she was performing the duties, and had the skillset, of the higher-classified Master
M-29 position. (Comoy Dep. 32:13-33:6.) As Comoy stated inher deposition, "I was always doing
two to three roles under a junior level job description." (Conroy Dep. 32: 13-33 :6.)
At the time of Comoy' s employment with Hewlett, Hewlett was divided into two divisions,
consumer and commercial. (Comoy Dep .. 29:4-23.) Comoy was employed in Hewlett's consumer
side. (Comoy Dep. 25:7-9, 30:23-25.) However, in 2010, while Comoy continued to work as an
ACAM, she was asked to help create her same position on the commercial side, which was to be
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advertised as a Services Business Manager position and classified as an M-29. (Conroy Dep. 25:615, 30:24-25; Busse Deel. Ex. 13.)
Conroy applied for the newly created M-29 position; however, she was neither given an
interview nor chosen for the position. (Conroy Dep. 25:6-15.) Scott Spilker, the hiring manager
responsible for filling the Services Business Manager position, stated:
There are significant differences between commercial sales and
consumer sales. A Business Manager in a consumer role interacts
with much fewer people than a Business Manager in a commercial
role .... [Conroy] was not selected ... because ... I felt [Conroy]
had a negative attitude that would interfere with her ability to
positively interact with my team and hundreds of sales representatives
and commercial partners. I also was not aware of [Conroy] having
any previous experience in a commercial business such as the one I
managed.
(Spilker Deel. ifif 5, 7 (ECF No. 38.).)
Conroy believed she had been discriminated against because she "ha[d] already done that
role, [had] been asked to define the role, [and had] an interest" in the role, and she raised this
concern with her manager, Bao Le ("Le"). (Conroy Dep. 25:16-22, 30: 13-21.) Conroy told Le her
position existed on the commercial side, that she felt discriminated against because she had not been
afforded an interview, and requested Le reclassify Conroy as an M-29 because she was being
underpaid in light of the newly created position on the commercial side. (Conroy Dep. 30:23-31: 1.)
But Conroy's request was rejected, and her classification remained unchanged. (Conroy Dep. 31 :25.) Conroy's role as an WWM was eventually reclassified as an M-29 in February 2013, but she
received no pay increase or bonus. (Conroy Dep. 50:14-21.)
In March 2013, while working as a WWM, Conroy hired and trained Dedes as an
independent contractor to assist Conroy with her job duties. (Dedes Dep. 6:17-24, 7:13-14.) Dedes
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had previously worked for Hewlett in customer relationship management for eight years, from 2000
to 2008. (Dedes Dep. 8: 13-15.)
In May 2013, Conroy joined Hewlett's Enterprise Group as a Marketing Development
Manager ("MDM"). (Busse Deel. Ex. 17; Randell Deel. if 6.) Shortly after moving to the Enterprise
Group, Conroy raised pay issues with her manager, Foster, during a focal point review. (Conroy
Dep. 56: 4-8.) Conroy explained to Foster she had been underclassified and underpaid while
working as an ACAM and WWM, instances Conroy described as "past wrongs that had never been
corrected." (Conroy Dep. 56:4-8.) Foster said she knew the background story and would "see what
[she] could do." (Conroy Dep. 54:18-19, 55:2.) However, Conroy received just a two percent pay
raise, which, due to a steep five percent pay cut in 2007 lasting for several years, only returned her
to near her starting salary. (Conroy Dep. 55:2-11.) Foster also gave Conroy her lowest annualevaluation review since the start of her employment with Hewlett in 2007, though it was still an
"achieves expectations" rating, which Conroy explained, "is not a negative review." (Conroy Dep.
56:13-57:1; Busse Deel. Ex. 24, at 5; Conroy Deel. if 7(a).) When Conroy inquired further about pay
and her review, Conroy recalls Foster explaining to Conroy that she could not correct past wrongs,
was only able to offer her a two percent pay raise, and to find a job elsewhere or work harder and get
a higher review if she wanted anything more significant. (Conroy Dep. 56:5-12.) Foster believes
she phrased her response differently. (Foster Dep. 20:24-21 :6.)
Around the same time, Conroy discovered Willenborg had been promoted from MDM to
Global Accounts Manager ("GAM"), where he was classified as a Master M-29, working in
Roseville, California, and making a salary of $117,841.31 per year, slightly more than Conroy.
(Conroy Dep. 57:2-18; Randell Deel. if 13.) Conroy contends Foster went "to bat" for Willenborg
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and obtained the promotion for him, while telling Comoy all she could provide was a two percent
raise.
Comoy acknowledges, however, she is unaware as to Willenborg's skill sets and whether he
deserved the promotion. (Comoy Dep. 62:11-23, 63:23-25.) She is also unaware ofWillenborg's
salary or classification when he was an MDM. (Comoy Dep. 62:24-63:5.) She also recognizes
Willenborg's GAM position required "a different level of work" and notes GAMs have a higher
budget and deal with a small list of specific accounts, regardless of geography, whereas MD Ms deal
with accounts based on geographic location. (Comoy Dep. 62:11-23, 63:23-25.)
Comoy' s move from PPS to the Enterprise Group meant Comoy was working in a separate
business unit with sepm·ate management structures, and, as a result, Comoy' s duties in her previous
role did not transition into her new role as an MDM. (Randell Deel.
~
7 .) Therefore, a vacancy
opened and Hewlett began the process of filling Conroy's previous WWM position. (Randell Deel.
~
8.) Hewlett advertised the position internally and externally. (Randell Deel.
~
8.) During the
interim, however, Dedes fulfilled the responsibilities of the WWM as an independent contractor.
(Dedes Dep. 6:17-24.) Ultimately, Hewlett offered the WWM position to Dedes. (Randell Deel.~
8.)
Upon hearing that an offer from Hewlett was forthcoming, Dedes asked his hiring manager,
Alexander Houcke, if it was possible to receive the smne salary he had earned prior to leaving
Hewlett in 2008, roughly $130,000 per year. (Dedes Dep. 5:10-15.) According to Dedes, though
he was never told affirmatively, the request was granted because, in November 2013, Hewlett hired
him into the WWM position earning an annual salary of $130,000.
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(Dedes Dep. 5:8-20.)
[TJK]
Dedes' s salary was higher than the annual salary Comoy received prior to leaving the WWM
position. (Dedes Dep. 5:18-20; Randell Deel.
~
9.) How much higher remains in contention. In an
e-mail Comoy sent to Cee Ann Callahan ("Callahan"), Hewlett's Enterprise Group lawyer, Comoy
states Dedes was making $30,000 more per year than Comoy. (Busse Deel. Ex. 27, at 6.) However,
Hewlett asserts Comoy earned an annual salary of $108,855.00 with a merit increase, raising her
annual salmy to $112,644.93. (Randell Deel. ~ 5.) Conroy later asserts in her declaration that she
was making $108,855.00, but makes no mention of the merit increase. (Comoy Deel.~ 11.)
"To ensure that its employees are compensated as fairly as possible nationwide without
regard to gender," Hewlett maintains a comprehensive salary scale whereby geographic differences
are used to adjust pay ranges based on the cost of labor in a given location. (Randell Deel.
~
4.)
Thus, according to Hewlett, "although Dedes received a marginally higher salary than [Comoy] did
while employed in the [WWM] position, the difference was solely due to their differing geographic
locations." (Randell Deel.~ 9).
Hewlett further explains that at the time Conroy left the WWM position, her position was
classified as M-29, and she received a salary range of 100 percent of the national average - between
$98,000 and $115,640 - based on her location of Vancouver, Washington. (Randell
Deel.~
10.)
In contrast, Dedes was based in Palo Alto, California, which at all times received a salary range of
115 percent of the national average. (Randell Deel.~ 11.) The salary bandfor a WWM in Palo Alto,
Californa, was $112,700 to $132,980. (Randell
Deel.~
11.) Based on Hewlett's geographic pay
ranges, Hewlett maintains, "[Dedes] and [Conroy] are actually similarly situated within their
respective pay bands for their individual geographic locations." (Randell
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Deel.~
12.)
[TJK]
Conroy, by contrast, takes issue with the application of geographic pay policy to Dedes's
case. She believes "it is normally not a policy to just give a pay differential based on geography,"
and "there is clear guidance from [Hewlett] that the increased pay for [geographical differences] is
to be used in times of competitive," or tight, labor markets, which did not exist when Dedes was
hired. (Conroy Deel. if 11.) Moreover, Conroy states Dedes had "less background, experience and
1
credentials than [she did]," and has no bachelor's degree. (Conroy Deel. if 11; Dedes Dep. 9:7-11.)
In April 2014, when Conroy learned Dedes was making more than she made in the WWM
position, she decided to contact Callahan. (Conroy Dep. 23:13-24; Busse Deel. Ex. 25.) Conroy
explained to Callahan she had recently learned Dedes was hired into her former WWM position
earning a higher salary. (Busse Deel. Ex. 25.) Conroy also explained her past discrimination issues
- that she had been underclassified and underpaid in her past positions with Hewlett: "After nearly
7 years," Conroy explained to Callahan, "I am in the lowest quartile of my pay band [with] nearly
30 years of management experience." (Busse Deel. Ex. 27, at 4.) Callahan turned the matter over
to Hewlett's Employee Relations Depmtment, and Lori Manders ("Manders"), an employee relations
consultant with Hewlett, was asked to investigate Conroy's pay discrimination claim. (Busse Deel.
Exs. 26, 27.)
Conroy subsequently met with Manders, where she laid out her discrimination claims.
(Busse Deel. Ex. 28.) Conroy agreed not to "seek external avenues until" Manders had a chance to
complete an investigation. (Busse Deel. Ex. 28, at 1.)
'Conroy has a bachelor's degree in communications and holds a Master of Business
Administration in international business. (Busse Deel. Ex. 48, at 3.)
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Manders thereafter investigated Conroy's claims, and, in May 2014, she informed Conroy
her investigation was complete and Conroy's discrimination claims were unsubstantiated. (Busse
Deel. Ex. 29). Conroy asked Manders for an explanation, but Manders declined to provide one,
citing confidentiality. (Busse Deel. Ex. 30, 31.) Consequently, Conroy informed Manders she
would move outside the organization and file a complaint with the EEOC. (Conroy Deel. '1! 5.)
Also, in May 2014, the Enterprise Group was preparing for a reduction in force. (Cerra Dep.
25:24-26:10.) The Enterprise Group was restrncturing, and managers were instrncted to retain the
best talent. (Cerra Dep. 39:21-25.) Cerra, Vice President of Hewlett's Enterprise Group, maintains
that on May 26, 2014, the decision was made to eliminate the MDM positions-Conroy 's position
- as part of the restrncturing. (Cerra Deel. '1! 4.) The decision was finalized on June 17, 2014.
(Hewlett's Resp. to Conroy's Interrog. No. 8.)
On June 3, 2014, Conroy filed an unperfected charge with the EEOC's Seattle, Washington,
field office, alleging sex discrimination under Title VII and violations of the Equal Pay Act. (Smith
Decl.Ex.10.) Sheperfectedher chargeonJune23, 2014. (SmithDecl.Ex.1 1.) OnJune9,2014,
Foster was informed Conroy had filed a charge with the EEOC, and Foster informed her supervisor,
Cerra, that the charge had been filed. (Foster Dep. 22: 15-20; Cerra Dep. 50: 1-9.) That year, Foster
also learned Conroy had lodged an internal complaint about pay. (Foster Dep. 21:10-12.) Cerra,
however, states she was unaware of Conroy's internal complaint. (Cerra Deel. '1! 3.)
On June 10, 2014, one day after Cerra and Foster learned about Conroy's EEOC charge,
Cerra instructed Foster, and other managers under her supervision, to evaluate all employees in her
group- including Conroy- in twelve job-related categories, scoring each category on a one-to-five
scale. (Busse Deel. Ex. 40.) After each category had been filled, Foster was to add up the scores in
Page 18 - OPINION AND ORDER
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all twelve categories to arrive at a final number for each employee. (Busse Deel. Ex. 37.)
Independent of the one-to-five scale, Foster was also instructed to "stack rank" employees on her
team from strongest to weakest, which required her to make a "subjective decision" as to where each
member of her team ranked. (Busse Deel. Ex. 40; Foster Dep. 56:12-15.)
The twelve job-related categories Cerra asked mangers under her supervision to evaluate
were: demand generation, event management, analytics, partner management, product
knowledge/depth, sales enablement, market/customer strategy, critical thinking, customer
engagement, internal-sales communication, content creation, and attitude. (Busse Deel. Ex. 37, at
2-3.) Cerra developed the rating categories, asking managers to provide a justification for the
rankings of employees who fell in the top and bottom ten percent. (Cerra Dep. 30:32-31 :3; Comoy
Ex. 40.) Cerra did not seek independent verification of her evaluation form from Hewlett's Human
Resources Department. (Cerra Dep. 29: 17-19.) Additionally, with respect to "attitude," Cerra gave
no instruction to her managers as to what that category entailed or how to objectively evaluate an
employee's attitude. (Cerra Dep. 30:13-15.)
And, in fact, the lack of guidance seems to have
created differing views on what attitude was intended to mean: Cerra, on the one hand, indicates that
she was using the attitude category to more broadly measure leadership attributes, but Foster was
under the impression that attitude was intended to measure whether or not an employee was
"positive" and "collaborative." (Cerra Dep. 30:8-12; Foster Dep. 44:8-14.)
In Faster' s stack ranking, Comoy received the lowest rating in her group, which comprised
eleven Enterprise Group employees working under Faster. (Busse Deel. Ex. 37.) On the one-to-five
scale, Comoy tied for the second-to-last score. (Busse Deel. Ex. 37.) According to Cerra, who
received Foster's rankings on June 12, 2014, Comoy appeared to be lacking in just about every
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competency, "based on the evaluation form provided by Ms. Foster." (Cerra Dep. 36:7-11.) Cetrn
acknowledges the final decision to terminate Conroy, rather than to place her into a different role in
the "new organization," was made after Cerra received Foster's ratings. (Cerra Dep. 31 :25-31 :6.)
Conroy believes she "should have been the highest ranked member of the team." (Conroy
Deel.
~
6.) She points to Koetting, who, as the Enterprise Group Central Region Marketing
Manager, worked with Conroy and other MD Ms on Foster's team. (Koetting Dep. 4:6, 5:5-7, 14:2515: 11.) In her deposition, Koetting testified she would rate Conroy at the top or in the middle in four
of the twelve categories used by Foster to rate her team; however, Koetting was unable to speak to
Conroy's skills in the remaining eight categories. (Koetting Dep. 14:25-16: 19 .) Conroy also points
to Laura Cox ("Cox"), a Hewlett District Manager, who had the opp01tunity to work with Conroy
for about a year. (Cox Dep. 4:3-16.) Cox stated Conroy was able to create and execute strategic
marketing plans, engage in good verbal and written communication skills, effectively deal with
customers and partners, and maintain a positive attitude towards her work. (Cox. Dep. 5:10-7:12.)
On July 14, 2014, Cerra told Conroy her job at Hewlett had been eliminated. (Busse Deel.
Ex. 42, at 4-5.) Cerra explained to Conroy the selection process had been a comprehensive review
"to evaluate [employees'] capabilities in performing the new functions." (Busse Deel. Ex. 42, at 4.)
The restructuring required "a redefinition of roles," which impacted Conroy's position. (Busse Deel.
Ex. 42, at 4.) Cerra further explained "[t]his was not a personal attack on [Conroy]." (Busse Deel.
Ex. 42, at 5.) Rather, it "was part of a massive reorganization effort, months in the making, and
carefully planned." (Busse Deel. Ex. 42, at 5.)
Conroy, along with others who were laid off, was provided a two-week redeployment period,
during which time she could post for any internal position at Hewlett and would continue to be on
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Hewlett's payroll. (Busse Deel. Ex. 42, at 4.) The employees selected for layoff were put on a
layoff list and other managers could select from the list should they want to add an employee to their
team. (Cerra Dep. 34:23-35:4.) Comoy's low scores in job-specific competencies/skills and
leadership, based on the ratings from Foster, were included on the layoff list. (Cerra Dep. 43:2145:3.) Comoy was unsuccessful in finding a position during her redeployment period; her last day
was July 25, 2014. (Comoy Dep. 211:2-4.)
Legal Standard
Summary judgment is appropriate only when the record shows that "there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.
R. CIV. P. 56(c)(2). A dispute is genuine if"the evidence is such that a reasonable jury could return
a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A fact is material if, under the substantive law of the case, resolution of the factual dispute could
affect the outcome of the case. Id. at 248. The moving party bears the initial burden of showing "the
absence ofa genuine issue concerning any material fact." Adickes v. SH Kress & Co., 398 U.S.
144, 159 (1970). The moving party satisfies its burden by offering the district court the portions of
the record it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The court does "not weigh the evidence or determine the truth
of the matter, but only determines whether there is a genuine issue for trial." Balint v. Carson City,
Nev., 180 F.3d 1047, 1054 (9th Cir. 1999).
Once the moving party meets its initial burden, the nonmoving party must establish the
existence of a genuine issue of material fact. FED. R. CIV. P. 56(e). To meet this burden, the
nonmoving party must make an adequate showing as to each element of the claim for which it will
Page 21 - OPINION AND ORDER
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bear the burden of proof at trial. Celotex, 422 U.S. at 322-23. The nonmoving party "may not rest
upon the mere allegations or denials of his pleading but ... must set forth specific facts showing that
there is a genuine issue for trial." First Nat'! Bank ofAriz. v. Cities Serv. Co., 391 U.S. 253, 288-89
(1968). In order to establish that there is a genuine issue of material fact, the nonmoving party "need
only present evidence from which a jury might return a verdict in [the nonmoving party's] favor."
Anderson, 477 U.S. at 257. The evidence set fmth must be sufficient to allow a rational jury to find
for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
A "mere scintilla of evidence in support of the [nonmoving party's] position [is]
insufficient." Anderson, 477 U.S. at252. Additionally, the court must view the evidence in the light
most favorable to the nonmoving party, and must draw all reasonable inferences from the underlying
facts in favor of the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284
(9th Cir. 1982).
The Ninth Circuit has cautioned against too readily granting summary judgment in employee
discrimination cases because of"the importance of zealously guarding an employee's right to a full
trial, since discrimination claims are frequently difficult to prove without a full airing of the evidence
and an opportunity to evaluate the credibility of the witnesses." McGinest v. GTE Serv. Corp., 360
F.3d 1103, 1112 (9th Cir. 2004); see also Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75,
81-82 ("The real social impact of workplace behavior often depends on a constellation of
sun-ounding circumstances, exceptions, and relationships which are not fully captured by a simple
recitation of the words used or the physical acts performed."). Thus, the Ninth Circuit has set "a
high standard for granting summary judgment in employment discrimination cases." Schindrig v.
Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996). Courts require "very little evidence to
Page 22 - OPINION AND ORDER
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survive summary judgment in a discrimination case, because the ultimate question is one that can
be resolved only through a searching inquiry-on e that is more appropriately conducted by the
factfinder upon a full record." Id (internal quotations and citation omitted). Additionally, "any
indication of discriminatory motive ... may suffice to raise a question that can only be resolved by
a factfinder," and thus "summary judgment for the defendant will ordinarily not be appropriate on
any ground relating to the merits." Id. (quoting Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th
Cir. 1995)).
Nevertheless, the Ninth Circuit holds thatthe "[f]ailure to allege 'specific facts' that establish
the existence of a prirna facie case renders a grant of summary judgment appropriate." Jurado v.
Eleven-Fifty Corp., 813 F.2d 1406, 1409 (9th Cir. 1987) (citation omitted). Additionally, "when
evidence to refute the defendant's legitimate explanation is totally lacking, summary judgment is
appropriate even though plaintiff may have established a minimum prima facie case." Wallis v. J. R.
Simplot Co., 26 F.3d 885, 890-91 (9th Cir. 1994).
Discussion
I. State Gender Discrimination Claim - Violation of OR. REV. STAT. 659A.030
In her First Claim for Relief, Conroy alleges gender was a substantial and motivating factor
with respect to her pay. Namely, Conroy argues Hewlett discriminated against her by paying her less
than Dedes and Willenborg, similarly situated male employees, in violation of OR. REV. STAT.
659A.030. ' Hewlett argues Conroy is unable to establish Willenborg is similarly situated. Hewlett
'In addition to Dedes and Willenborg, Conroy also asserts in a footnote that she experience d
less favorable treatment than an unnamed male counterpart. Conroy does not provide a name or
detailed info1mation on the man'sjob duties. There is no way for the court to determine ifthe male
employee was similarly situated. As such, Conroy's pay discrimination claim will be limited to the
alleged pay disparity between her, Dedes, and Willenborg.
Page 23 - OPINION AND ORDER
[TJK]
also contends Comoy is unable to show Hewlett's legitimate, nondiscriminatory reason for the
difference in pay between Comoy and both Dedes and Willenborg is pretextual under the balancing
test.
Oregon law prohibits an employer from using gender as a basis for employment decisions,
or in the terms, conditions, or privileges of employment, including benefits and compensation. OR.
REV. STAT. 659A.030. "The standard for establishing a prima facie case of discrimination under
Oregon law is identical to that used under federal law." Sneadv. Metro. Prop. & Cas. Ins. Co., 237
F.3d 1080, 1087 (9th Cir. 2001). Under federal law, in order to establish aprimafacie equal pay
claim, an employee "must show that the employer pays different wages to employees of the opposite
sex for substantially equal work." E.E. 0. C. v. Maricopa Cnty. Comfy. College Dist., 736 F .2d 510,
513 (9th Cir. 1984).
The employee bears the burden of showing the jobs being compared are "substantially equal."
Stanley v. Univ. ofSouthern Cal., 178 F.3d 1069, 1074 (9th Cir. 1999). The Ninth Circuit applies
a two-step analysis for determining substantial equality. First, the court must examine whether the
jobs to be compared have a common core of tasks. Id. Next, the court determines whether any
additional tasks incumbent on one job but not the other make the two jobs substantially different.
Id. It is "actual job performance requirements, rather than job classifications or titles, that is
determinative." Maricopa, 736 F.2d at 513. The jobs need not be identical. Stanley, 178 F.3d at
1074. "Minor differences in responsibility ... do not make the equal pay standard inapplicable."
Maricopa, 736 F .2d at 514. In determining whether the employee has made out a prima facie case,
it is important to bear in mind that this burden is relatively minimal. Goodwin v. Hunt Wesson, Inc.,
150 F.3d 1217, 1220 (9th Cir. 1998).
Page 24 - OPINION AND ORDER
[TJK]
Assuming the employee establishes a prima facie case, the burden shifts to the employer to
show by a preponderance of the evidence the pay disparity is justified under one of four statutory
exceptions to the Equal Pay Act: "(i) a seniority system; (ii) a merit system; (iii) a system which
measures earning by quantity or quality of production; or (iv) a differential based on any other factor
other than sex." 29 USC§ 206(d)(l); Maxwell v. City ofTucson, 803 F.2d 444, 446 (9th Cir. 1986).
"These exceptions are affirmative defenses which the employer must plead and prove." Corning
Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974).
Even if the employer persuades the court it is entitled to an affirmative defense, that is not
the end of the story. The employee must be given an opportunity to prove the employer's proffered
defense was just pretext, masking its underlying discriminatory motive. See Stanley, 178 F.3d at
1076. However, the employee must present meaningful evidence to support a claim that the
employer's proffered defense was just pretext; "unsupported allegations made in briefs are not
sufficient." Id. (internal quotations omitted).
A. Conroy's Prima Facie Case
As to Dedes, Hewlett does not dispute he received a higher annual salary than Conroy, nor
that Dedes's and Conroy's jobs were substantially similar. Consequently, Conroy established a
prim a facie case of unequal pay as to Dedes. Hewlett also does not dispute Willenborg received a
higher annual salary than Conroy while working in his GAM position. Hewlett, however, does argue
Willenborg is not similarly situated and that Conroy cannot make out a prima facie case as to
Willenborg.
To show that jobs compared are similarly situated, an employee must show the jobs'
"performance[s] require' equal skill, effort, and responsibility' and they are performed under' similar
Page 25 - OPINION AND ORDER
[TJK]
working conditions."' Forsberg. v. Pac. Nw. Bell Tel. Co., 840 F.2d 1409, 1414 (9th Cir. 1988)
(citing 29 U.S.C. § 206(d)(l)). The requirement that the two jobs be substantially equal in "skill
effort, responsibility, and be performed under similar working conditions are separate tests, each of
which must be met in order" to make out a prima facie case. Id
With respect to Willenborg, Conroy does not establish a primafacie case. First, she has not
shown Hewlett paid Willenborg a different salary while Willenborg worked as an MDM. Second,
while Hewlett provided information showing Willenborg made slightly more than Conroy in his
GAM position, Conroy has not shown her MDM position was substantially equal to the GAM
position in terms of skill, effort, and responsibility. In fact, Conroy admits she and Willenborg had
different responsibilities: Willenborg handled global customer accounts, while Conroy's position
was geography-based. Additionally, she points out, "there was a different level of work required"
to fulfill Willenborg' s position as a GAM. The evidence, therefore, shows Conroy exercised
substantially different levels of responsibility and effort in her MDM position than Willenborg did
in his GAM position. Conroy cannot establish a prima facie case as it applies to Willenborg, and
therefore the court need not discuss Hewlett's "other than sex" argument for Willenborg' s disparate
pay.'
While the comt does not discuss Hewlett's "other than sex" argmnent for Willenborg's
disparate pay, the court notes Hewlett argues that, irrespective that Willenborg held a different
position, he also was paid a slightly higher salary- $117,841.31 - because of his location in
Roseville, California. Hewlett thus argues, as with Dedes, that Willenborg' s slightly higher salary
was the result of a geographic pay scale, not gender.
3
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B. Hewlett's "Other Than Sex Argument"
As discussed, Hewlett does not contest that Dedes received a higher salary and was in a
position substantially similar to Conroy. Hewlett, however, does raise the affirmative defense that
a factor other than sex accounted for the wage disparity. Hewlett argues it utilizes gender-neutral
grade profiles, or geographic differentials, to adjust an employee's salary based on the cost oflabor
in any given location. Specifically, Hewlett claims, in an effort "[t]o ensure that its employees are
compensated as fairly as possible nationwide without regard to gender," Hewlett maintains a
comprehensive salary scale, whereby geographic differences are used to adjust pay ranges based on
the cost oflabor in a given location. (Randell Deel. if 4.)
At the time Conroy left the WWM position, she received a salary range of I 00 percent of the
national average - between $98,000 and $115,640 - based on her location of Vancouver,
Washington. In contrast, Dedes, who was based in Palo Alto, California, received a salary range of
115 percent of the national average, or between $112,700 to $132,980. Hewlett therefore argues
Dedes and Conroy received commensurate pay given individual geographic locations.
Conroy argues this reason is merely pretext for underlying gender discrimination. She does
not argue geographic pay differences at Hewlett never occur, or that a geographic pay difference is
an inadequate reason for disparate pay between similarly situated employees; rather, she states,
"there is clear guidance from [Hewlett] that the increased pay for [geographical differences] is to be
used in times of competitive," or tight, labor markets, which did not exist when Dedes was hired.
(Conroy Deel. if 11.) She further argues Dedes's salary was set at the higher figure not because of
geography but because Hewlett used Dedes' s prior salary to set his starting salary as an WWM. And
finally, she asserts, even assuming she and Dedes received commensurate pay given individual
Page 27 - OPINION AND ORDER
[TJK]
geographic locations, this alone evidenced discrimination because Dedes was less qualified and less
experienced and, in turn, should have started out at a lower salary.
As mentioned, Hewlett contends that a legitimate, nondiscriminat01y factor other than sex
accounted for the wage disparity. Courts have observed that the "factor other than sex" exception
was intended to be broad. Kouba v. Allstate Ins. Co., 691F.2d873, 877 (9th Cir. 1982). However,
the Ninth Circuit has imposed conditions for application of the defense. Id at 876. An employer
must first show the proffered factor upon which the wage disparity is allegedly based qualifies as an
"acceptable business reason." Id Even if the court finds that the proffered reason is an acceptable
business reason, issues of material fact exist if the proffered business reason for wage disparity was
not used "reasonably in light of the employer's stated purpose." Id
Hewlett argues the disparity in salary between Dedes and Conroy is based on geographic
location, which produces cost-of-living differences and naturally results in disparate pay to ensure
its employees are compensated as fairly as possible nationwide. Salary adjustments pursuant to an
employee's geographic location are an appropriate means to accomplish a business objective and
may be used to establish an employer's affamative defense. Russell v. Placeware, Inc., No. Civ. 03836-MO, 2004 WL 2359971, at *12 (D. Or. Oct. 15, 2004). Hewlett's geographic pay scale
therefore qualifies an acceptable business reason, entitling Hewlett to use geographic cost-of-living
differences to set salaries. Moreover, Hewlett applied its proffered business reason reasonably:
Dedes's salary, $130,000 per year, falls squarely within the salary band for Palo Alto, California.
Accordingly, Hewlett has persuasively shown Dedes's higher salary was the result of a geographic
pay scale, not gender.
Page 28 - OPINION AND ORDER
[TJK]
Once the employer establishes an affirmative defense, the employee bears the burden of
rebutting it with evidence of pretext. Stanley, 178 F.3d at 1076-77. Conclusory allegations and
denials are insufficient to rebut an employer's asserted business reason for disparate pay. Id; see
also Groussman v. Respiratory Home Care, CV 84-8283 PAR,1985 WL 5621 (C.D. Cal. Dec. 11,
1985).
Conroy does not dispute Hewlett's use of geographic pay grades. Rather, she argues
Hewlett's policy is to increase pay for geographical differences only in times of competitive, or tight,
labor markets, which was not the case when Dedes was hired. The only relevant evidence Conroy
provides for this assertion, however, is the conclusory statement she makes in her declaration that
Dedes was not hired into a competitive labor market. Conroy has provided no competent evidence
from which the court can reasonably infer this was the case, or, for that matter, anything by which
the court can infer Conroy possessed any personal knowledge of the Palo Alto, California, labor
marketwhenD edes washiredinN ovember2013 . See FED. R. CIV. P. 56 (c)(4) (a declaration "used
to support or oppose a motion [for summary judgment] must be made on personal knowledge").
Conroy's bare assertion does not rebut Hewlett's showing that its geographic pay band falls under
the "factor other than sex" exception and that its policy was applied reasonably in this context.
Conroy also argues Dedes's salary was set at the higher figure of $130,000 not because of
geography but because Hewlett used Dedes's prior salaty to set his starting salary. Even assuming
Conroy is correct and Hewlett set Dedes's starting salary based on his prior salaiy, that alone would
not show the wage disparity was the product of gender discrimination. Kouba recognized employers
are permitted to use prior salaty to base an employee's starting salary and, such action, by itself, is
not discriminatory. Kouba, 691 F.2d at 878; see also Wachter-Young v. Ohio Cas. Group, 236 F.
Page 29 - OPINION AND ORDER
[TJK]
Supp. 2d 1157 (D. Or. 2002) (holding defendants are entitled to use prior salary to set starting
salaries).
Finally, Comoy argues that even assuming she and Dedes received commensurate pay given
their disparate geographic locations, this alone evidenced discrimination because Dedes was less
qualified and less experienced and thus should have started out at a lower salary. Comoy has failed
to provide any meaningful evidence to support this allegation, however, beyond a bare assertions that
Dedes had "less background, experience and credentials," and that Dedes did not possess a
bachelor's degree. These assertions shed no light on Dedes's previous background and experience
in roles similar to the WWM role in which he was hired.
It is apparent Dedes' s salary matches his prior salary and falls squarely within the geographic
pay band for Palo Alto, California, where he was based. As previously stated, far from being
discriminatory, basing an employee's starting on geographic location is a legitimate,
nondiscriminatory means to accomplish a business objective . Accordingly, Comoy has failed to
raise a genuine issue of fact as to Hewlett's legitimate, nondiscriminatory reason for paying Dedes
a higher salary than Comoy. Hewlett's motion for sununary judgment on Comoy' s equal pay claim
is granted.
II. State Retaliation Claims - Violation of OR. REV. STAT. 659A.230 and 659A.199
In her Second Claim for Relief, Comoy alleges that, after she complained, both internally and
with the EEOC, about what she perceived to be discriminatory pay practices and violations of state
and federal law, Hewlett retaliated against her by terminating her in violation of OR. REV. STAT.
659A.199 and OR. REV. STAT. 659A.230.
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OR. REV. STAT. 659A.199 and 659A.230 provide protection for public whistleblowers. OR.
REV. STAT. 659A. 199 provides that an employer may not "retaliate against an employee ... for the
reason that the employee has in good faith reported information that the employee believes is
evidence of a violation of a state or federal law, rule or regulation." OR. REV. STAT. 659A.230
prohibits employers from taking adverse action, including discharging, demoting, suspending,
discriminating, or retaliating against an employee in any manner based on an employee's good faith
reporting of a violation of federal or state law.
This court looks to the Title VII retaliation case law to determine whether a plaintiff has
established a prima facie claim for retaliation under the Oregon whistleblower statutes. Shepard v.
City ofPortland, 829 F. Supp. 2d 940, 954 (D. Or. 2011) (stating that Oregon's retaliation statutes
are typically construed consistently with federal law); see also Minter v. Multnomah County, No.
CIV-01-352-ST, 2002 WL31496404, at*6(D. Or. May 10, 2002) (same). Theprimafacie elements
for a retaliation claim under Title VII are: (1) the plaintiff was engaged in a protected activity; (2)
the plaintiff was thereafter subjected by her employer to an adverse employment action; and (3) there
is a causal link between the protected activity and the adverse employment action. Manatt v. Bank
ofAm., NA., 339 F.3d 792, 800 (9th Cir. 2003).
Hewlett does not dispute that Conroy engaged in a protected activity by filing a charge of
discrimination with the EEOC. Nor does Hewlett dispute Conroy suffered an adverse employment
action by being terminated. Hewlett only argues that Conroy is unable to establish the existence of
a causal link between the adverse action and her protected activity.
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A. Causal Relationship Between Adverse Actions and Whistle blowing
"To establish causation [the plaintiff] must show by a preponderance of the evidence that
engaging in the protected activity was one of the reasons for [the plaintiffs] firing and that but for
such activity [the plaintiff] would not have been fired." Villiarimo v. Aloha Island Air, Inc., 281
F.3d 1054, 1064-65 (9th Cir. 2002). "[C]ausation may be established based on the timing of the
relevant actions." Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493, 507
(9th Cir. 2000). "Specifically, when adverse employment decisions are taken within a reasonable
period oftime after complaints of discrimination have been made, retaliatory intent may be infen-ed."
Id. The Ninth Circuit, in Miller v. Fairchild Indus., Inc, 885 F.2d 498, 505 (9th Cir. 1989), held that
a prima face case of causation was established when the plaintiffs' discharges occurred forty-two
and fifty-nine days after the plaintiffs engaged in a protected activity, namely, attending EEOC
hearings.
Conroy was notified of her termination forty-one days after filing her initial, unperfected
charge with the EEOC, well within the fifty-nine-day time frame deemed adequate to establish a
prim a facie case in Miller. Hewlett argues, however, Conroy is still unable to establish a causal link
because she cannot show Cen-a was aware of Conroy's charge with the EEOC at the time Cen-a made
the decision to terminate Conroy.
Essential to showing a causal link is "evidence that the [decision-maker] was aware that the
plaintiff had engaged in the protected activity" at the time of making the decision adversely affecting
the plaintiffs employment. Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982). In
Cohen, the plaintiff brought a claim alleging the defendant had retaliated against her for filing a
charge with the EEOC. Id. at 794. In 1972, the Plaintiff brought the EEOC charge, alleging the
Page 32 - OPINION AND ORDER
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defendant engaged in a pattern and practice of sexual discrimination in hiring and promotion. Id
at 795. In 1973, the district manager under which the plaintiff worked implemented a new policy
in which the position the plaintiff held would be required to work night shifts on a regular basis or
lose the position. Id The plaintiff contacted an EEOC investigator to inform her that she felt she
was being forced to work night shifts because of her EEOC charge. Id As a result, a supervisor
contacted the district manager to inquire about the situation. Id The district manager had not known
of the EEOC complaint and explained the policy had been adopted for a legitimate business reason.
Id The policy went into effect despite the plaintiffs concerns. Id
The Ninth Circuit held the plaintiff could not show a causal link between the adverse
employment action - the night shifts - and the filing of her EEOC complaint because the district
court "expressly found that ... [the district manager] was unaware that [the plaintiff! had filed a
complaint with the EEOC." Id at 797. Thus, at the time of the decision that directly resulted in the
adverse action against the plaintiff, the manager was unaware the plaintiff had engaged in a protected
activity, breaking "the requisite causal link between the decision to implement the policies and [the
plaintiffs] EEOC complaint." Id
Conroy's situation is dissimilar to Cohen. While Cerra states in her declaration the decision
to eliminate the MDM position - Conroy's position - was made on May 26, 2014, she acknowledged
inher deposition the final decision to terminate Conroy, instead of move Conroy, was made after she
received Faster' s ratings, on June 12, 2014, two days after Cerra was made aware of Conroy's EEOC
charge. Moreover, Hewlett stated in response to interrogatories that the decision to eliminate the
MDM was not finalized until June 17, 2014. Therefore, unlike in Cohen, atthe time of the decision
that directly resulted in the adverse action against Conroy, Cerra was aware Conroy had engaged in
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protected activity. Thus, the requisite causal link between the decision to terminate Conroy and
Conroy's EEOC complaint is left firmly intact.
Conroy has offered evidence which viewed in a light most favorable to her raises a genuine
issue of material fact on the existence of a causal relationship between an adverse action and her
EEOC charge. Hewlett argues, however, it had legitimate, nonretaliatory reasons for the adverse
action and, under the federal burden-shifting framework, Conroy has the burden of proving that
nonretaliatory reasons are pretext.
B. Burden-Shifting Analysis/Legitimate, Nonretaliatory Reasons for Adverse Actions
Oregon has rejected the federal burden-shifting scheme; in other words, "a plaintiff who
establishes a primaface case of discrimination under Title VII[] survives summary judgment on the
con-esponding discrimination claim" under Oregon law. Whitley v. City ofPortland, 654 F. Supp.
2d 1194, 1212 (D. Or. 2009). However, the Ninth Circuit has held that McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973) burden-shifting, and not Oregon's "prima-facie only" rule, applies
to Oregon Chapter 659A claims in federal diversity cases. Dawson v. Enteklnt'l, 630 F.3d 928, 935
(9th Cir. 2001). The court thus analyzes Conroy's retaliation claim under the federal framework.
Under the federal McDonnell Douglas burden-shifting framework, once a plaintiff establishes
a prima facie case of retaliation, the burden shifts to the employer to articulate a nondiscriminatory
reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 802. If the employer
shows a nondiscriminatory reason, the burden shifts back to the plaintiff to prove that the defendant's
nondiscriminatory reason is mere pretext. Id. A plaintiff may establish pretext "either directly by
persuading the court that a discriminatory reason more likely motivated the employer or indirectly
by showing that the employer's proffered explanation is unworthy of credence." Tex. Dep 't ofCmty.
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Affairs v. Burdine, 450 U.S. 248, 256 (1981). While the mere existence ofaprimafacie case is
insufficient to preclude summary judgment, a plaintiff "need produce 'very little evidence of
discriminatmy motive to raise a genuine issue of fact' as to pretext." Warren v. City of Carlsbad,
58 F.3d 439, 443 (9th Cir. 1995) (quoting Lindahl v. Air France, 930 F.2d 1434, 1437 (9th Cir.
1991)). "To survive an employer's summary judgment motion, only a genuine factual issue with
regard to discriminatory intent need be show, a requirement that is almost always satisfied when the
plaintiff's evidence, 'direct or circumstantial, consists of more than the [presumption established by
the three-pronged primafacie case test].'" Lam v. Univ. Of Hawai 'i, 40 F.3d 1551, 1559 (9th Cir.
1994) (quoting Sischo-Nownejadv. Merced Cmty. College Dist., 934 F.2d 1104, 1111 (9th Cir.
1991). "The same evidence can be used to establish aprimafacie case and to create a genuine issue
regarding whether the employer's explanations are pretextual." Strother v. S Calif Permanente
Med. Grp., 79 F.3d 859, 870 (9th Cir. 1996).
"[E]vidence based on timing can be sufficient to let the issue go to the jury, even in the face
of alternative reasons proffered by the defendant." Passantino, 212 F.3d at 507. In Strother, the
Ninth Circuit determined there was enough evidence to get past summary judgment because the
plaintiff not only produced two letters rebutting the defendant's claim that the adverse employment
action was based in part on the plaintiffs poor interpersonal skills, but also because the plaintiff
suffered adverse employment actions days and months after filing a charge with California's
Department of Fair Employment & Housing. Strother, 79 F.3d at 870-71.
Likewise, significant and rapid changes in an employee's evaluations, combined with
testimony from the employee and from coworkers that the evaluations lack credence, can be
sufficient to show that an employer's proffered, nondiscriminatory reason for an employee's
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termination is pretextual. E.E. 0. C. v. Boeing Co., 577 F .3d 1044 (9th Cir. 2009). In Boeing Co., the
EEOC brought an action against the employer on behalf of a terminated employee, claiming the
employer's decision to terminate the employee was retaliatory, thus violating Title VIL Id. The
employee, who had worked for the defendant for over a decade, received a positive evaluation from
her supervisor in 2001, obtaining a "meets expectations" or higher in ten categories. Id. at 1047.
That same year, the defendant substantiated a sexual harassment claim that the employee had filed.
Id. A year later, in October 2002, the defendant conducted a reduction in force, which affected the
employee's department. Id. at 1048. In order to detennine whom to tetminate, the defendant
conducted a workforce-reduction evaluation on a number of workers, including the employee. Id.
The same supervisor who had provided the employee with a positive review in 200 I, scored the
employee significantly lower in a multitude of categories on the workforce-reduction evaluation.
Id. The employee even received a zero, reflecting no knowledge or experience, in several categories,
despite the fact that the employee's "own statements and prior [] evaluations had indicated she
possessed at lease some knowledge or experience in these areas." Id. Shortly thereafter, the
employee was te1minated, allegedly based on her poor evaluation. Id. at 1048. The employee,
however, argued her te1mination was in retaliation for filing the aforementioned sexual harassment
claim. Id. at 1051.
In concluding that the EEOC produced sufficient evidence to show the employee's poor
evaluation was pretext, the court focused on three pieces of evidence. First, the court noted that the
stark contrast in the employee's evaluations had occurred over a short period of time and the
employee's supervisor provided no substantive explanation or "point[ed] to any concrete conduct,
specific complaints, or written records indicating" the change was warranted. Id. at I 052. Second,
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the court found particularly pertinent the testimony provided by a number of the employee's
coworkers, stating the employee was a good team member and that "her skills warranted higher
scores than she received." Id. As the court stated,"[c]oworker testimony is particularly relevant here
because it would allow a jury to infer that [the defendant's] proffered reason for te1mination -a poor
[] evaluation - was not only inaccurate, but is simply unworthy of credence." Id. Finally, the court
pointed to the employee's own detailed testimony about why her low scores were wrong and
unworthy of credence. Such evidence, the court stated, is relevant and should be considered by a
jmy. Id. at 1052-53.
Conroy has provided evidence in which a jury could infer that Hewlett's nondiscriminatory
reason for termination is pretextual. Indeed, the facts here are analogous to both Boeing Co. and
Strother. First, as in Boeing Co., Hewlett was going through a substantial reduction in force.
Mangers were instructed to retain the best talent, and Cerra instructed her managers to evaluate all
employees pursuant to an evaluation form she developed. Like the employee in Boeing Co., Conroy
received a poor evaluation; she appeared to be lacking in nearly every job-specific competency.
Hewlett, argues this warranted her termination. However, there is substantial evidence in which a
jury could infer that this is pretextual.
Just as in Boeing Co., the rankings Foster provided Cerra, where Conroy was ranked last and
second-to-last in her group, were in stark contrast to Conroy's recently received annual performance
evaluation, where Foster gave Conroy an achieves expectations rating. Moreover, Hewlett is unable
to offer any nonconclusory explanation regarding the discrepancy between Foster's stack ranking,
where Conroy finished last, and Foster's one-to-five rating , where Conroy tied for the second-to-last
score.
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The discrepancies in Foster's evaluations of Conroy are compounded by the fact that Cerra' s
ranking system required Foster to evaluate an employee's attitude without providing Foster any
explanation as to what "attitude" entailed or a method by which she could objectively evaluate an
employee's attitude. As Foster admits, she simply made subjective decisions as to where each
member of her team ranked. And, in fact, the subjective nature of the attitude category is illustrated
in Cerra's and Foster's differing views on what attitude was intended to measure. While Cerra
inserted attitude as a category for managers to measure, she intended to use the category to more
broadly measure leadership attributes. But she apparently did not communicate this to Foster, who
was under the impression that "attitude" was intended to measure whether or not an employee is
positive and collaborative. Yet the record contains no evidence that Cerra was aware or took into
account the fact that Foster had evaluated employees under a differing definition of attitude than
Cerra had anticipated. Based on this evidence, a jury could reasonably infer that Hewlett's proffered
reason for termination - a poor evaluation - was both inaccurate and unworthy of credence.
Finally, similar to the employees in Boeing Co. and Strother, Conroy has pointed to
assertions made by coworkers that Conroy, far from lacking in every competency, as her evaluation
seemed to indicate, appeared to excel in many aspects ofher job. Conroy has also provided the court
with her own detailed testimony stating that her low scores were inaccurate and unreliable. These
factors, along with the temporal proximity of the adverse employment action to Conroy's EEOC
complaint, are sufficient to raise a genuine issue of material fact as to Conroy's retaliation claim.
Conroy has, thus, presented sufficient evidence to support her claim for retaliation under Oregon's
whistleblowing statutes. Hewlett's motion for summary judgment on Conroy's Second Claim for
Relief is denied.
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Conclusion
Defendants' motion (#28) for summary judgment is GRANTED with regard to Conroy's
First Claim for Relief for gender discrimination and DENIED on Conroy's Second Claim for Relief
for retaliation under OR. REV. STAT. 659A.230 and 659A.199.
IT IS SO ORDEREp.
DATED
thi~ Ytl:;~fMarch, 2016.
Jof!.N v. ACOSTA
United $tates Magistrate Judge
''-'
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