Clark v. Vivint Solar
Filing
107
MEMORANDUM DECISION granting in part and denying in part 70 Motion for Summary Judgment. See order. Signed by Judge Jill N. Parrish on 11/23/20. (alf)
FILED
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2020 NOV Page 10:59
CLERK
U.S. DISTRICT COURT
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION
AND ORDER GRANTING IN
PART AND DENYING IN PART
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
ADRIANA CLARK,
Plaintiff,
v.
VIVINT SOLAR, INC.,
Case No. 2:17-cv-00144-JNP-JCB
Defendant.
District Judge Jill N. Parrish
Magistrate Judge Jared C. Bennett
This matter is before the court on Defendant Vivint Solar’s (“Vivint” or “Defendant”)
Motion for Summary Judgment (the “Motion”). ECF No. 70. Plaintiff Adriana Clark (“Clark” or
“Plaintiff”) brings this employment discrimination suit under the Equal Pay Act and Title VII of
the 1964 Civil Rights Act (“Title VII”), claiming Vivint discriminated against her both in her wage
and in the disparate workplace treatment she experienced based on her gender and religion. She
also claims Vivint retaliated against her for filing internal complaints. Having considered the
parties’ memoranda and argument presented at the hearing on October 20, 2020, the court grants
in part and denies in part Defendant’s Motion.
I.
BACKGROUND 1
This dispute arises from Clark’s employment at Vivint in various human resources (“HR”)
positions, during which she alleges that Vivint paid her unequally because of her gender and
1
The court recites the record facts in the light most favorable to Plaintiff as non-movant, resolving
all factual disputes and drawing all reasonable inferences in her favor. See Riser v. QEP Energy,
776 F.3d 1191, 1195 (10th Cir. 2015).
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religion, treated her in a discriminatory manner on the same grounds, and retaliated against her for
filing complaints of gender discrimination. Clark’s wage discrimination claims are based on her
allegations that, because she is female and does not subscribe to the teachings of The Church of
Jesus Christ of Latter-day Saints (the “LDS Church”), she was paid less than two of Vivint’s male
employees who are members of the LDS Church, Scott Strong (“Strong”) and Anthony Allred
(“Allred”).
A.
HR G ENERALIST R OLE
Clark began working at Vivint as an HR Generalist on November 11, 2013. In this role,
Vivint paid Clark $60,000/year, with a potential 5% bonus. Vivint did not give Clark an office
while employed in this position. As an HR Generalist, Clark’s duties included employee
onboarding, performance management, discipline, career development, recruiting, and managing
employee relations activities by conducting investigations of employee misconduct and addressing
employee performance issues. Plaintiff claims that when Vivint first hired her, she was the only
person conducting employee relations duties at the company and that she would record employee
relations investigations on a spreadsheet called the HR Tracker. During the period relevant to this
litigation, Clark’s direct supervisor was Director of Human Capital Matthew Sadowski
(“Sadowski”) and her department head was Vice President of Human Capital Tessa White
(“White”). Clark does not claim that she was paid discriminatorily as an HR Generalist during the
period of November 11, 2013 to October 20, 2014. See ECF No. 70–2 at 6.
B.
H UMAN C APITAL O PERATIONS M ANAGER R OLE
On October 20, 2014, Vivint promoted Clark to Human Capital Operations Manager. At
this time, Clark did not receive any pay raise, office, or additional benefits. When White offered
Clark the position, White informed Clark that she would be taking over Strong’s duties. Vivint had
hired Strong in April 2014 under the title Director of Human Capital Operations and terminated
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his employment in October 2014 after offering him a ten-week severance package. In this role,
Strong earned $105,000/year plus a 15% bonus. Strong’s job description indicates that he
“handle[d] performance management, organization effectiveness, compensation and benefits,
onboarding, and training.” ECF No. 82–5 at 4. Strong’s other responsibilities included developing
and implementing organization and human capital strategies through “talent acquisition, staffing,
employment processing, compensation, training and development, records management, safety
and health, succession planning, employee relations and retention, AAEEO compliance, and labor
relations.” Id.; see also ECF No. 70–4 at 21 (White describing Strong’s duties as implementing
processes concerning “onboarding, adjudications, I-9’s, audits, criminal background checks”).
After her promotion to Human Capital Operations Manager, Clark took over managing
Strong’s team of eighteen employee direct reports. See ECF No. 70–2 at 6. In this role, Clark was
responsible for all the post-hiring employment issues for all Vivint employees. This included
supervising a team of HR Coordinators; employee performance management; employee relations
duties including conducting misconduct investigations; and onboarding duties that involved
background checks, drug testing, preparing offer letters, and ensuring that I-9 tax forms and noncompete agreements were properly completed. See id. at 7, 10–11.
C.
H UMAN C APITAL M ANAGER E AST R EGION R OLE
In February 2015, Vivint promoted Clark to the Human Capital Manager of the East Region
position. By this time, Clark had ten years of experience as an HR professional. As Human Capital
Manager of the East Region, Clark was initially responsible for HR obligations in fifteen offices
in four states with the number of states in her purview expected to increase to eight by the end of
2015. Specifically, Clark at first supported HR functions concerning both sales and operations
employees in these offices, mostly splitting her job between employee relations and onboarding
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duties. She had five employees directly reporting to her. Clark had a counterpart Human Capital
Manager of the West Region named Tina Rojas, who lived in Arizona.
Vivint’s job description for this role states that Clark “is the first contact assigned to the
business unit for all things HR.” ECF No. 82–5 at 3. It further states that in this position, Clark
“will handle performance management, organization effectiveness, compensation and benefits,
onboarding, and training.” Id. The job description delineates that the position holder must:
“integrate various HR products, services, and processes”; “[i]nterpret organizational strategies and
offer up appropriate HR solutions”; “[w]ork with managers to establish and maintain competitive
programs that attract and retain high quality employees in a cost effective manner”; “[c]ollaborate,
develop and deliver HR policies, practices, and procedures that guide the business while achieving
compliance”; “[p]articipate in the internal marketing of HR to the rest of the organization”;
“[i]mplement HR policies as a generalist”; “[p]artner with business operations to ensure a complete
understanding of business needs”; and serve as an “HR liaison for . . . succession planning, talent
management, employee relations, compensation, benefits, EEO, and/or training and development
objectives and resolves HR issues.” Id. The job also required “5 years experience as an HR
Generalist with hands on experience in performance management and/or talent management
initiatives, with a track record of receiving increased responsibilities.” Id. at 2. Clark testified that
she performed these listed functions in her Human Capital Manager East Region position. See ECF
No. 70–2 at 6–7, 10.
Around this time, Vivint also hired Allred for a new Human Capital Partner position. Vivint
created the new position with the expectation that Allred would perform HR duties specifically
focused on the Sales Department. White had previously worked with Allred years earlier at a
different company. Although she knew that Allred did not have any HR experience, White decided
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to offer Allred the position on January 28, 2015 because she liked his prior work performance and
knew he was a police officer earlier in his career. White did not post the position publicly or
internally for Vivint employees and did not consider Clark for the HR Capital Partner position
because White believed Clark was not “the right fit for Sales.” ECF No. 82–11 at 6. Clark and
other employees were surprised by Allred’s hire given his lack of HR experience.
Soon after Allred’s hiring, Clark saw Allred’s offer letter and learned that he would be paid
$120,000/year, with a 20% bonus. Vivint had previously hired Sharon Wilcken as a Human Capital
Partner in February 2014 and paid her $49,224/year. Because of Allred’s inexperience, Vivint
assigned Clark and Rojas to support his HR responsibilities related to Sales, including by
continuing to conduct some onboarding and employee relations functions such as investigations.
See ECF No. 82–12 at 1–2.
Allred’s Human Capital Partner job description is nearly identical to Clark’s Human
Capital Manger job description. Both job descriptions state that the employee would be “the first
contact with assigned business units for all things HR related, such as performance management,
organization effectiveness, compensations and benefits, onboarding, or training needs.” ECF No.
82–5 at 1, 3. Like Clark’s job description, the Human Capital Partner responsibilities also stated
that Allred must “integrate various HR products/services/processes”; “[i]nterpret organizational
strategies and offer up appropriate HR solutions”; “[w]ork with managers to establish and maintain
competitive programs that attract and retain high quality employees in a cost effective manner”;
“[c]ollaborate on development and delivery of HR policies, practices, and procedures that guide
the business while achieving compliance”; “[p]articipate in the internal marketing of HR to the
rest of the organization”; “[i]mplement HR policies as a generalist”; and serve as an “HR liaison
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for . . . succession planning, talent management, employee relations, compensation, benefits, EEO,
and/or training and development.” Id. at 1.
D.
C LARK ’ S W AGE D ISCRIMINATION C OMPLAINTS
In October 2014, after Vivint promoted Clark to HR Operations Manager but did not offer
her a pay raise, Clark complained to Sadowski and White about her low salary compared to
national statistics for equivalent HR roles. On February 4, 2015, after Clark’s promotion to HR
Manager of the East Region position without a pay increase or additional benefits like an office,
Clark again raised concerns about her specific wage and complained of Vivint’s gender pay gap.
In this request for a raise, Clark identified that one male employee, Steve Littlefield, had recently
been promoted to interim Manager of Recruiting Specialists and received a $40,000/year raise and
a 30% bonus. See ECF No. 70–2 at 124. Clark also brought up Allred’s $120,000/year salary and
his similar role during her meeting with Sadowski, stating that she was “being significantly
underpaid for the role that [she was] doing” and “that [Allred] was brought in at almost double
[her] salary.” Id. at 34.
E.
C LARK ’ S P ERFORMANCE R EVIEWS
Clark received numerous positive performance reviews concerning her employment at
Vivint. For example, on October 10, 2014, Clark received an email from White expressing White’s
gratitude for Clark’s “dedication,” “flexibility,” and “work ethic” that “helped [Vivint] get through
some very tough times,” and White wrote that Clark’s work was “integral and [Vivint] couldn’t
do it without [her].” ECF N0. 70–4 at 65. On April 23, 2015, White also observed:
[Clark] was a hard worker, smart, extremely dedicated, and the glue
that held us together. She worked until the job was done. She figured
out solutions to problems. She never complained, and she was
willing to do whatever tasks or challenges were thrown at her. . . .
She is well rounded, having played so many parts in our fastgrowing team. And because of that, she is also able to deal with
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ambiguity. A fast pace does not phase her in the least. She always
gives her best no matter the circumstances.
ECF No. 70–4 at 41, 70.
F.
C LARK ’ S T ERMINATION
On April 16, 2015, Sadowski and another Human Capital Director, Jeremy Sabin
(“Sabin”), informed Clark that she was being let go from her position as Human Capital Manager
of the Eastern Region because Vivint wanted an employee to live within the Eastern region and
Clark was living and working in Utah. Prior to this meeting, Vivint’s Director of Recruiting, Mike
Chonko, had informed Clark that White “wanted [her] gone” from the company and had scratched
off her name from the organizational chart on a whiteboard during a meeting. See ECF No. 70–2
at 40–41.
During their meeting with Clark, Sabin and Sadowski told Clark that the change would
take effect in forty-five days, during which Clark would assist with the transition, and that Clark
would receive one month’s severance pay after that transition time ended. White ultimately made
the decision to relocate Clark’s position in consultation with Sabin and Sadowski. After deciding
to move Clark’s position to the East Coast, Vivint did not offer her an opportunity to move with
the position or to take any other positions with the company. Instead, White encouraged her to
seek jobs at other companies. At the time of her termination, Vivint paid Clark $69,310/year. See
ECF No. 82–10.
On April 28, 2015, Sabin emailed Vivint employees announcing the decision to relocate
the Human Capital Manager East Region position to the East Coast and informing them that Clark
would no longer hold the position. During the forty-five-day transition period after the April 16
meeting, Clark continued to work on HR matters such as investigating complaints of
discrimination and harassment. At this time, Clark continued to work with Allred and help him
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with “how to handle discrimination claims” and other sensitive investigations. ECF No. 70–4 at
51. Clark finished her employment at Vivint on June 5, 2015. But Vivint did not post the Human
Capital Manager East Region position publicly until February 11, 2016. The posting indicated that
the employee would work out of Westbury, New York. On May 16, 2016, Vivint hired an external
candidate for the position.
II.
LEGAL STANDARD
Summary judgment is proper “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
The movant bears the initial burden of demonstrating the absence of a genuine dispute of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has met this burden, the
burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine
issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation omitted). “A
fact is material if, under the governing law, it could have an effect on the outcome of the lawsuit.
A dispute over a material fact is genuine if a rational jury could find in favor of the nonmoving
party on the evidence presented.” Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760,
767 (10th Cir. 2013) (citation omitted). “At the summary judgment stage, the judge’s function is
not to weigh the evidence and determine the truth of the matter.” Concrete Works of Colo., Inc. v.
City & County of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994). Instead, the court must “view all
evidence and any reasonable inferences that might be drawn therefrom in the light most favorable
to the non-moving party.” Riser v. QEP Energy, 776 F.3d 1191, 1195 (10th Cir. 2015) (citation and
alteration omitted).
III.
DISCUSSION
Plaintiff raises various gender and religious discrimination claims under Title VII, as well
as wage discrimination claims under the Equal Pay Act. In Plaintiff’s first cause of action, she
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alleges that Defendant violated Title VII by discriminatorily limiting “her status, pay, opportunities
for advancement and promotion” and “exclud[ing] her socially and professionally because of her
gender and religion.” Compl. ¶¶ 32–33. Plaintiff also alleges that Vivint discriminated against her
and other female employees by “ignor[ing] [their] complaints of discrimination.” Id. ¶ 36. In
Plaintiff’s second cause of action, she alleges that instead of addressing her complaints of gender
discrimination, Defendant also violated Title VII by “terminat[ing] her for pretextual reasons . . .
in retaliation for complaining of discrimination.” Id. ¶ 44. Plaintiff alleges in her third cause of
action that Defendant violated the Equal Pay Act because it paid her less than her male comparators
“beginning with her hiring in 2013 and continuing through her 2015 termination.” Id. ¶ 51. In
summary, the court understands Plaintiff’s Complaint raises six theories of liability: (1) Equal Pay
Act claims concerning a wage disparity between male and female employees; (2) Title VII
disparate treatment claims based on gender; (3) Title VII disparate treatment claims based on
religion; (4) Title VII wage discrimination claims based on gender; (5) Title VII wage
discrimination claims based on religion; and (6) a Title VII retaliation claim concerning
Defendant’s response to Plaintiff’s complaints of gender discrimination.
Defendant moved for summary judgment only on Plaintiff’s Equal Pay Act claims, Title
VII gender wage discrimination claims, and Title VII retaliation claim. See ECF No. 70 at 6.
Defendant does not specifically address Plaintiff’s religious discrimination claims because it
believed that these claims are “not separate and distinct from her claim for gender discrimination.”
Id. at 35 n.5. At oral argument, however, counsel for Plaintiff conceded that her Title VII wage
discrimination claim based on religion fails. The court accordingly grants summary judgment for
Defendant as to this claim.
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Defendant’s Motion also does not address Plaintiff’s disparate treatment claims based on
either gender or religion, even though her Complaint contains such claims. Id. ¶¶ 32–36. Instead,
Defendant addresses these issues for the first time in its reply memorandum. See ECF No. 91 at
31–32. As the Tenth Circuit has unequivocally stated, “[i]ssues not raised in the opening brief are
deemed abandoned or waived.” Riser, 776 F.3d at 1201 (citations omitted); see also Toevs v. Reid,
685 F.3d 903, 911 (10th Cir. 2012) (“Arguments not clearly made in a party’s opening brief are
deemed waived.”). 2 Thus, the court does not consider Defendant’s arguments concerning
Plaintiff’s disparate treatment claims because Defendant failed to raise arguments against those
theories of liability in its Motion.
In resolving the claims on which Defendant did move for summary judgment, the court
first addresses the parties’ various evidentiary disputes. Next, the court analyzes Plaintiff’s Equal
Pay Act claims and concludes that there are genuine disputes of material fact that preclude
summary judgment. Viewing the disputed facts and inferences in Plaintiff’s favor, a reasonable
jury could find that Defendant maintained a gender pay disparity that violates the Equal Pay Act.
The court reaches the same result on Plaintiff’s Title VII gender wage discrimination claims. The
court then turns to Plaintiff’s Title VII retaliation cause of action and enters summary judgment in
favor of Defendant on that claim. Finally, the court considers Defendant’s argument for partial
summary judgment against plaintiff concerning any purported wage discrimination that she
experienced in her first role at Vivint as an HR Generalist.
2
As this court recently stated, “[i]t is not enough merely to present an argument in the skimpiest
way, and leave the Court to do counsel’s work-framing the argument, and putting flesh on its bones
through a discussion of the applicable law and facts.” Butler v. Cardiff Healthcare, Inc., No. 2:17CV-01114-JNP, 2019 WL 3752574, at *8 (D. Utah Aug. 8, 2019) (unpublished) (citation omitted).
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A.
E VIDENTIARY D ISPUTES
The court first address the parties’ various evidentiary disputes. Defendant asks the court
to (1) disregard testimony concerning Mike Chonko as hearsay, (2) disregard Exhibit 7 to Clark’s
Deposition because it is hearsay, and (3) disregard evidence of Sharon Wilcken’s (“Wilcken”)
salary because it is irrelevant. Plaintiff asks the court to disregard Shelly Sperling’s (“Sperling”)
declaration attached to Defendant’s motion because Defendant failed to properly disclose Sperling
as a witness under Federal Rule of Civil Procedure 26. For the following reasons, the court
disregards testimony concerning Chonko and the Sperling declaration, but will consider Exhibit 7
to Clark’s Deposition and information concerning Wilcken’s salary.
1.
Mike Chonko’s Statements
Plaintiff’s response memorandum cites to passages in Clark’s deposition in which Clark
recalled that Mike Chonko (“Chonko”), Vivint’s Director of Recruiting, informed Clark that White
“wanted her gone” and that he knew White crossed Clark’s name off an organizational chart on a
white board saying “we need her gone.” See ECF No. 81 at 26. Defendant contends that Clark’s
recitation of what she heard from Chonko about White is “hearsay within hearsay” prohibited
under Federal Rules of Evidence 801 and 805. ECF No. 91 at 10. Plaintiff responds with three
arguments as to why the statements are not impermissible hearsay: (1) Chonko and White are both
party opponents, (2) Plaintiff could present Chonko’s statements in an admissible form through
his anticipated testimony at trial, and (3) Plaintiff presents these statements for their effect on Clark
and not for their truth. ECF No. 98 at 1–2. “At the summary judgment stage, evidence need not be
submitted ‘in a form that would be admissible at trial.’” Argo v. Blue Cross & Blue Shield of Kan.,
Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (quoting Celotex, 477 U.S. at 324). Here, Plaintiff’s
arguments that the statements may be admitted to prove the matter they assert are foreclosed by
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the Tenth Circuit’s decision in Johnson v. Weld County, Colorado, 427 F.3d 1303 (10th Cir. 2005).
However, the court will consider the statements for their effect on Clark as the listener.
Johnson held that “an employee’s statements are not attributable to his employer as a partyopponent admission in an employment dispute unless the employee was ‘involved in the
decisionmaking process affecting the employment action’ at issue.” Id. at 1209 (quoting Jaramillo
v. Colo. Judicial Dep’t, 427 F.3d 1303, 1314 (10th Cir. 2005)). Here, although White is properly
considered a party opponent, Plaintiff has not demonstrated beyond conjecture that Chonko was
involved with the decision to relocate Clark’s position. Plaintiff recognizes that Sabin, Sadowski,
and White were involved in the decision, but Plaintiff does no more than speculate that Chonko
also participated. Thus, under Johnson, Plaintiff has not demonstrated that Chonko is a party
opponent for purposes of the hearsay rule. See, e.g., Talbott v. Pub. Serv. Co. of New Mexico, No.
CV 18-1102 SCY/LF, 2020 WL 2043481, at *7 (D.N.M. Apr. 28, 2020) (analyzing Johnson and
reaching similar result where the plaintiff had not demonstrated that the declarant had “decisionmaking authority related to Plaintiff’s employment”).
Johnson also ruled that although “the form of evidence produced by a nonmoving party at
summary judgment may not need to be admissible at trial, ‘the content or substance of the evidence
must be admissible.’” 427 F.3d at 1210 (quoting Thomas v. IBM, 48 F.3d 478, 485 (10th Cir.
1995)). There, like here, the plaintiff sought to introduce a party-opponent supervisor’s statements
through other employees’ recitation of the supervisor’s remarks about the plaintiff. Id. at 1208.
The court in Johnson rejected the plaintiff’s invitation to consider the otherwise hearsay
“statements because they could be replaced at trial by admissible evidence, namely their live
testimony.” Id. at 1209. Plaintiff makes the same argument in support of considering Chonko’s
purported testimony here, see ECF No. 98 at 3, but the court must reject it under Johnson.
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While Chonko’s alleged statements may not be admitted to prove that Defendant intended
to terminate Clark, they may be admitted for their effect on Clark as the listener. Chonko’s
statements are relevant to determining the reasonableness of Clark’s decision not to seek continued
employment with Vivint. In short, Chonko’s alleged statements are not admissible to establish
when Vivint decided to terminate Clark, but they are admissible for the purpose of determining
whether Clark’s actions, such as failing to pursue a transfer, were reasonable.
2.
Clark’s Notes
Defendant also objects on hearsay grounds to Exhibit 7 to Clark’s Deposition, which is a
compilation of Clark’s notes concerning the alleged adverse treatment she experienced at Vivint.
See ECF No. 70–2 at 124–127. Specifically, Defendant argues the notes are not admissible to
support Clark’s contention that “Clark was aware that a male employee, Steve Littlefield, who had
been made an interim Manager of the Recruiting Specialists received a $40,000 raise and a 30%
bonus with the new position.” ECF No. 91 at 11–12. Defendant’s objection is to the form in which
Plaintiff presents this evidence, rather than its content. This objection fails because “the form of
evidence produced by a nonmoving party at summary judgment may not need to be admissible at
trial,” and only “the content or substance of the evidence must be admissible.” Johnson, 594 F.3d
at 1210 (citation omitted). For example, an affidavit may be considered on summary judgment,
even though it is “a form of evidence that is usually inadmissible at trial given our adversarial
system’s preference for live testimony.” Id. Here, although the content or substance may be
currently presented in an inadmissible form in Clark’s typed notes, 3 at trial she may present the
same content in an admissible form through live testimony without the alleged hearsay problems.
Thus, the court will consider Exhibit 7 to Clark’s Deposition.
3
The court does not reach the issue of whether Plaintiff’s typed notes are themselves admissible
as a present sense impression or for any other reason.
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3.
Sharon Wilcken’s Salary
Defendant objects on relevance grounds to Plaintiff’s factual contentions that Allred was
hired in early 2015 at $120,000 per year but that “Vivint hired Sharon Wilcken as a Human Capital
Partner on February 24, 2014,” at a salary of $49,224 per year and that Wilcken “received a raise
to $54,000 per year in May 2015 due to increased responsibilities provided with the recent Ops
and Install organizational change.” ECF No. 91 at 13. “Evidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.” FED. R. EVID. 401. The “standard of relevance .
. . is a liberal one.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587 (1993). “As a general
rule . . . ‘the testimony of other employees about their treatment by the defendant is relevant to the
issue of the employer’s discriminatory intent.’” Mickelson v. New York Life Ins. Co., 460 F.3d
1304, 1315 (10th Cir. 2006) (citation omitted). Thus, the wage that Vivint paid Wilcken is relevant
to Clark’s discrimination claims.
4.
Shelly Sperling’s Declaration
Finally, Plaintiff objects to Defendant’s use of Sperling’s declaration because she “was not
disclosed as a potential witness” and this “failure to disclose” prejudiced Plaintiff because it
prevented her “from having the opportunity to depose her or cross examine her on the statements
in the declaration.” ECF No. 81 at 19. Plaintiff is correct that Defendant did not disclose Sperling
as a potential witness. See ECF No. 98–2. The court construes Plaintiff’s argument as invoking
Federal Rule of Civil Procedure 26(a)(1)(A)(i), which states that a party must provide to opposing
parties “the name and, if known, the address and telephone number of each individual likely to
have discoverable information—along with the subjects of that information—that the disclosing
party may use to support its claims or defenses.” Parties are required to make their “initial
disclosures based on the information then reasonably available” and they are “not excused from
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making [their] disclosures because [they have] not fully investigated the case.” FED. R. CIV. P.
26(a)(1)(E). Further, under Rule 26(e), these initial disclosures must be supplemented “in a timely
manner if the party learns that in some material respect the disclosure or response is incomplete or
incorrect, and if the additional or corrective information has not otherwise been made known to
the other parties during the discovery process or in writing.” FED. R. CIV. P. 26(e).
“As a sanction for violating this rule, ‘the party is not allowed to use that information or
witness to supply evidence on a motion, . . . unless the failure was substantially justified or is
harmless.’” Deere v. XPO Logistics Freight, Inc., 798 F. App’x 278, 283 (10th Cir. 2020)
(unpublished) (quoting FED. R. CIV. P. 37(c)(1)); see also Smith v. Elva Grp., LLC, No. 1:13-CV00028-DS-DBP, 2015 WL 2384037, at *1 (D. Utah May 19, 2015) (unpublished) (“A failure to
properly disclose a witness may result in exclusion of the witness from subsequent hearings.”).
“Courts have discretion in assessing harmlessness and should consider whether: (1) the opposing
party is prejudiced; (2) the prejudice can be cured; (3) the proceedings would be disrupted; and (4)
the party acted in bad faith.” Deere, 798 F. App’x at 283 (citing Woodworker’s Supply, Inc. v.
Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999)). But the court “need not make
explicit findings concerning the existence of a substantial justification or the harmlessness of a
failure to disclose” for all of these considerations. Woodworker’s Supply, 170 F.3d at 993. The
court considers each of these factors in turn.
First, Plaintiff is prejudiced by Defendant’s failure to disclose Sperling as a witness. As
this court has recognized, the prejudice of a proponent party’s nondisclosure “is apparent” when,
as here, the opposing party “received the first indication that [the non-disclosing party] would rely
on that evidence” during summary judgment briefing. See XMission, L.C. v. Adknowledge, Inc.,
No. 2:15-CV-277-TC, 2016 WL 3562039, at *8 (D. Utah June 24, 2016) (unpublished). Defendant
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argues, however, that its Rule 26 disclosure violation was harmless because Clark can later depose
Sperling or ask her questions at trial regarding the contents of her declaration. But under the
Federal Rules, witnesses such as Sperling are “required to be included in [the proponent party’s]
initial disclosures, regardless of whether they may testify at trial.” Borandi v. USAA Cas. Ins. Co.,
No. 2:13-CV-141-TS-PMW, 2014 WL 4955778, at *3 (D. Utah Oct. 2, 2014) (unpublished).
Defendant also argues that Plaintiff is not prejudiced because she should have been on notice that
Defendant would use Sperling as a witness because Sperling is referenced in various discovery
productions and depositions. But it is not Plaintiff’s “responsibility to depose every individual
referenced in either documents attached to [Defendant’s] initial disclosures or during depositions.
Instead, it was [Defendant’s] burden to disclose” its potential witnesses under Rule 26. See id.; see
also Hornady Mfg. Co. v. Doubletap, Inc., No. 2:11-CV-18 TS, 2013 WL 1693678, at *2 (D. Utah
Apr. 18, 2013) (unpublished) (recognizing that references to the witness “in and amongst other
discovery materials . . . is insufficient to put [the opposing party] on notice of [the witness’s]
identity and the subject matter of discoverable information she might provide”). Thus, Plaintiff
was prejudiced by Defendant’s nondisclosure. The fact that Sperling may testify at trial or that
Sperling is mentioned elsewhere in discovery productions does not justify Defendant’s
nondisclosure or ameliorate the prejudice to Plaintiff.
Second, the prejudice from Defendant’s nondisclosure cannot be cured without further
disruption to these proceedings. Defendant argues that “any possible prejudice can be remedied by
allowing Clark to depose Sperling on the contents of her declaration,” but then Defendant also
argues that “such a deposition is not warranted” because “Clark has not identified what information
she seeks” from Sperling. ECF No. 91 at 15. By offering and then resisting in consecutive
sentences the possibility of Plaintiff deposing Sperling, Defendant demonstrates that its cure
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proposal is a feigned overture. Regardless, an offer to depose “is not a reasonable accommodation
to remedy the prejudice occasioned by [Defendant’s] failure to include [Sperling] in [its] initial
disclosures and provide [Plaintiff] with any meaningful opportunity to conduct discovery” before
the court decides this Motion. See Borandi, 2014 WL 4955778, at *4. Moreover, permitting Clark
to depose Sperling and thereby cause further “delay in resolution of [the] summary judgment issues
[is itself] prejudicial” to Plaintiff. See XMission, L.C., 2016 WL 3562039, at *8 (citation omitted).
Because Defendant did not comply with Rule 26(a) or 26(e) by failing to disclose Sperling, the
court will disregard her declaration for purposes of this Motion because Defendant’s nondisclosure
was not substantially justified and caused Plaintiff prejudice.
B.
E QUAL P AY A CT W AGE D ISCRIMINATION C LAIMS
Plaintiff claims that Vivint violated the Equal Pay Act by paying Strong and Allred more
than Clark for substantially equal work. The Equal Pay Act prohibits wage discrimination
“between employees on the basis of sex . . . for equal work on jobs the performance of which
requires equal skill, effort, and responsibility, and which are performed under similar working
conditions.” 29 U.S.C. § 206(d)(1). The Equal Pay Act “impos[es] a form of strict liability on
employers who pay males more than females for performing the same work—in other words, the
plaintiff . . . need not prove that the employer acted with discriminatory intent.” Mickelson v. New
York Life Ins. Co., 460 F.3d 1304, 1310–11 (10th Cir. 2006) (citations omitted). To establish a
prima facie case of wage discrimination under the Equal Pay Act, Plaintiff must demonstrate: “(1)
she was performing work which was substantially equal to that of the male employees considering
the skills, duties, supervision, effort and responsibilities of the jobs; (2) the conditions where the
work was performed were basically the same; (3) the male employees were paid more under such
circumstances.” Riser, 776 F.3d at 1196 (quoting Sprague v. Thorn Ams., Inc., 129 F.3d 1355, 1364
(10th Cir. 1997)). “An [Equal Pay Act] plaintiff is not required to demonstrate that males, as a
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class, are paid higher wages than females, as a class, but only that there is discrimination in pay
against an employee with respect to one employee of the opposite sex.” E.E.O.C. v. Maryland Ins.
Admin., 879 F.3d 114, 122 (4th Cir. 2018) (citation omitted).
Plaintiff identifies Scott Strong as the relevant higher-earning male comparator for her
Human Capital Operations Manager role and Anthony Allred as the same for her Human Capital
Manager East Region role. Defendant does not dispute that the conditions of Clark’s employment
were basically the same as Strong’s and Allred’s or that Vivint paid these male employees more
than Clark. Rather, Defendant argues only that the content of Clark’s job was not “substantially
equal” to the jobs that Strong and Allred performed. 4
Under the Equal Pay Act, work is “substantially equal” if it requires “equal skill, effort,
and responsibility.” 29 U.S.C. § 206(d)(1). “What constitutes equal skill, equal effort, or equal
responsibility cannot be precisely defined,” 29 C.F.R. § 1620.14(a), but the Tenth Circuit has
attempted to delineate that “[s]kill includes such considerations as experience, training, education,
and ability”; “[e]ffort refers to the physical or mental exertion necessary to the performance of a
job”; and “[r]esponsibility concerns the degree of accountability required in performing a job,”
E.E.O.C. v. Cent. Kansas Med. Ctr., 705 F.2d 1270, 1272 (10th Cir. 1983) (citation omitted),
overruled on other grounds by McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988). “In
4
The Equal Pay Act also provides four affirmative defenses for employers to justify gender pay
disparities “made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which
measures earnings by quantity or quality of production; or (iv) a differential based on any other
factor other than sex.” 29 U.S.C. § 206(d)(1). The employer has the burden of persuasion, and “in
order to prevail at the summary judgment stage, the employer must prove at least one affirmative
defense so clearly that no rational jury could find to the contrary.” Mickelson, 460 F.3d at 1311
(citation omitted). Because Defendant raises the defense that any wage disparities are based on
factors other than gender for the first time in its reply memorandum, however, the court does not
consider this affirmative defense on summary judgment. See Riser, 776 F.3d at 1201 (citation
omitted).
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interpreting these key terms . . . , the broad remedial purpose of the [Equal Pay Act] must be taken
into consideration.” 29 C.F.R. § 1620.14(a); accord Corning Glass Works v. Brennan, 417 U.S.
188, 208 (1974) (“The Equal Pay Act is broadly remedial, and it should be construed and applied
so as to fulfill the underlying purposes which Congress sought to achieve.”).
Although “[i]t is not sufficient that some aspects of the two jobs were the same,” Nulf v.
Int’l Paper Co., 656 F.2d 553, 560 (10th Cir. 1981), it is also true that “[i]nsubstantial or minor
differences in the degree or amount of skill, or effort, or responsibility required for the performance
of jobs will not render the equal pay standard inapplicable,” Riser, 775 F.3d at 1196 (quoting 29
C.F.R. § 1620.14(a)). Thus, the requirement for the plaintiff to show that she and her male
comparator are “substantially equal” does not mean they must be “identical.” 29 C.F.R. §
1620.14(a). Rather, the question is whether the “core functions” of the plaintiff’s and the
comparator’s jobs require substantially equal skill, effort, and responsibility. See Riser, 775 F.3d
at 1196. In making this determination, the court is guided by two additional principles: (1) “[j]obs
may be equal even though one sex is given extra duties if the other sex also performs extra duties
of equal skill, effort and responsibility, or if the extra tasks take little time and are of only peripheral
importance,” Cent. Kansas Med. Ctr., 705 F.2d at 1273; and (2) “the fact that a female employee
performed additional duties beyond a male comparator does not defeat the employee’s prima facie
case under the [Equal Pay Act],” Riser, 775 F.3d at 1197 (citations omitted).
The court concludes that material disputes of fact preclude summary judgment on
Plaintiff’s Equal Pay Act claims. Viewing the facts in Plaintiff’s favor, Plaintiff has established
sufficient evidence for a reasonable jury to find that both Strong and Allred performed
substantially equal work to Clark for Plaintiff’s Equal Pay Act wage discrimination claims.
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1.
Strong Comparator
Genuine disputes of material fact exist as to whether the skill, effort, and responsibility
required for Clark’s work as Human Capital Operations Manager was “substantially equal” to
Strong’s position. Defendant distinguishes Strong from Clark by relying on White’s testimony that
Strong was in charge of “building systems” for Vivint and fulfilling a higher-level strategic
policymaking role for HR services at the company. ECF No. 70–4 at 5. Plaintiff, on the other hand,
indicates that Strong was not at a higher level than Clark because White informed Clark that she
took over Strong’s role in full when he left the company, including managing his team of eighteen
direct report employees. See ECF No. 70–2 at 18. Clark also testified that after taking over Strong’s
management position, she too performed higher-level systems development work by collaborating
with a group to “put[] together ideas [and] com[e] up with a process” for improving Vivint’s HR
systems. See id. at 11–12. Moreover, Clark testified that both she and Strong reported directly to
White on various HR issues, particularly concerning results of background checks from
prospective employees. Id. at 6–7. The substantial equality between Clark’s and Strong’s jobs is
corroborated by Vivint’s job descriptions, which show that the two positions have substantially
equal responsibilities and require substantially equal skill and qualifications. Compare ECF No.
82–5 at 3 with id. at 4–5. 5 Specifically, duties Clark fulfilled after taking over Strong’s role—such
as managing and implementing investigations, onboarding, compliance, employee relations tasks,
5
Although Defendant is correct that the Tenth Circuit in Riser v. QEP Energy stated that the Equal
Pay Act “substantially equal” determination “turns on the actual content of the job—not mere job
descriptions or titles,” 775 F.3d at 1196 (citation omitted), Defendant fails to recognize that the
Riser court then went on to twice discuss the comparator’s job description in making its
“substantially equal” determination in that case, see id. at 1196–97. Accordingly, although job
descriptions are not dispositive, the duties and responsibilities outlined in the descriptions may
corroborate other evidence concerning whether two different roles are “substantially equal” for an
Equal Pay Act claim. See, e.g., Nulf, 656 F.2d at 560 (analyzing duties assigned in job description,
among other considerations); Baumgardner v. ROA Gen., Inc., 864 F. Supp. 1107, 1110 (D. Utah
1994) (same); Woodward v. Heritage Imports, 773 F. Supp. 306, 313 & n.8 (D. Utah 1991) (same).
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training and development, and various tax audit facilitation—are the same responsibilities
described in Strong’s Human Capital Director job description when he held that role. See id. at 4.
In summary, there remain genuine disputes of material fact concerning Strong’s job duties
and the degree to which his work overlapped or was otherwise equated in skill, effort, and
responsibility to Clark’s job duties as HR Operations Manager. Viewing the disputed facts in
Plaintiff’s favor, as the court must, a reasonable jury could find that Clark, in taking over Strong’s
position after his termination, performed substantially equal work compared to the work Strong
performed before he left Vivint. Indeed, a reasonable jury could conclude that when Clark was
promoted to HR Operations Manager in October 2014, “any changes” to the nature of the same
position that Strong held in the link on Vivint’s corporate chain “dealt with how the job was
performed” but “the core functions of the position remained intact.” See Riser, 776 F.3d at 1194–
95.
2.
Allred Comparator
Genuine disputes of material fact exist as to whether the skill, effort, and responsibility
required for Clark’s position as the Human Capital Manager for the East Region were
“substantially equal” to Allred’s position as a Human Capital Partner. Defendant contends that
Allred was at a higher level than Clark at Vivint because he was involved in more strategic
partnerships between HR and the Sales department, he liaised more often with Vivint’s senior
leadership, and he conducted higher stakes investigations. See ECF No. 91 at 23–26. But Clark
testified that she and Allred performed equal work for different parts of the company. Clark
testified that Vivint merely hired Allred to conduct the same “HR functions . . . solely for sales”
employees that Clark was already doing for Vivint’s operations employees by “working with the
branch managers, with the electricians, the technicians, and so forth.” ECF No. 70–2 at 23–24.
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For example, Vivint assigned both Clark and Allred the responsibility of conducting
investigations into employee misconduct. This investigatory overlap is indicated in White’s May
6, 2015 email to both Clark and Allred, which states that a certain internal discrimination complaint
matter “belongs to you [Allred],” but because Allred was new and the matter was sensitive,
“[Clark] will need to handle the investigation with white gloves.” ECF No. 70–4 at 51. White’s
deposition testimony further suggests that she asked Clark on other occasions to work with Allred
on investigations that otherwise fell within Allred’s responsibilities but that needed Clark’s
assistance “to be handled carefully.” Id. at 43. Vivint also assigned onboarding and performance
management responsibilities to both Allred and Clark, including running and processing
background checks, disciplinary tasks such as determining whether an employee should be
terminated, and investigating allegations of fraud as well as other employee relations functions.
See, e.g., ECF Nos. 70–2 at 21–23; 70–6 at 41; 82–6 at 3–4.
To corroborate Plaintiff’s identified overlap between the skill, effort, and responsibility
required for Clark’s and Allred’s jobs, Plaintiff also emphasizes that Vivint’s job descriptions for
Clark’s position and Allred’s position are nearly identical, with the exception that Clark’s position
seeks an applicant with some higher credentials. See ECF No. 82–2 at 1, 3. For example, both job
descriptions state, using almost exactly the same language, that Clark’s and Allred’s primary
function was to handle “performance management, organization effectiveness, compensation and
benefits, onboarding, and training.” Id. Both job descriptions indicate that Clark and Allred were
responsible for “integrat[ing] various HR products/services/processes”; “[i]nterpret[ing]
organizational strategies and offer[ing] up appropriate HR solutions”; “[w]ork[ing] with managers
to establish and maintain competitive programs that attract and retain high quality employees in a
cost effective manner”; “[c]ollaborat[ing] on development and delivery of HR policies, practices,
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and procedures that guide the business while achieving compliance”; “[p]articipat[ing] in the
internal marketing of HR to the rest of the organization”; “[i]mplement[ing] HR policies as a
generalist”; and serving as an “HR liaison for . . . succession planning, talent management,
employee relations, compensation, benefits, EEO, and/or training and development,” among other
duties. Id. at 1; see also id. at 3.
Finally, many of the points of distinction Defendant raises between Clark and Allred are
either immaterial or occurred after Clark left the company. For example, Defendant emphasizes
that Allred worked on Vivint’s potential merger with another company during Summer 2015, but
that was after Clark had already ended her employment at Vivint. See Riser, 776 F.3d at 1197–98
(ruling that post-termination duties are irrelevant). Further, Allred’s prior experience as a police
officer is not an important consideration because such experience is not required or particularly
relevant to the HR duties Allred and Clark performed. See, e.g., Mickelson, 460 F.3d at 1314
(declining to consider certain experience distinctions that are not required or relevant for the job
duties assigned). Moreover, the fact that Allred provided HR functions with a focus on Vivint’s
sales employees rather than operations employees is not sufficient to show that Allred and Clark
performed different tasks. See 29 C.F.R. § 1620.14(c) (“[T]he fact that jobs are performed in
different departments or locations within the establishment would not necessarily be sufficient to
demonstrate that unequal work is involved where the equal pay standard otherwise applies.”).
Defendant also attempts to distinguish Allred from Clark by arguing that Clark performed
more numerous investigations than Allred. But “the amounts of time which employees spend in
the performance of different duties are not the sole criteria.” 29 C.F.R. § 1620.14(c). Instead, a
reasonable jury could find that Clark was assigned more investigations because she was more
effective than Allred, especially in light of Vivint higher-ups (such as Sadowski and White) asking
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Clark to assist Allred on this function and particularly for certain sensitive matters. See, e.g., ECF
Nos. 70–2 at 23–24; 70–4 at 43, 51; 82–12 at 1–2. What’s more, the additional tasks that Clark
conducted “beyond [her] male comparator does not defeat the employee’s prima facie case under
the [Equal Pay Act].” Riser, 776 F.3d at 1197 (citations omitted). For example, Plaintiff observes
that Clark was in charge of managing direct-report employees and facilitating more onboarding
tasks, whereas Allred did not manage employees or conduct as much onboarding beyond
background checks. These purported “differences in skill, effort or responsibility . . . do not justify”
finding that two jobs are unequal under the Equal Pay Act “where the greater skill, effort, or
responsibility is required of the lower paid [gender].” 29 C.F.R. § 1620.14(a).
The thin distinctions that Defendant emphasizes concerning the types of duties that Allred
and Clark performed merely represent “job differences that are ‘not significant in amount or
degree’” and are insufficient to “support a wage differential” between employees. Riser, 776 F.3d
at 1198 (citation omitted). See also Cent. Kansas Med. Ctr., 705 F.2d at 1273 (finding that
differences in the comparators duties may be “equalized by additional responsibilities” requiring
similar skill and effort by the plaintiff). Therefore, resolving disputed facts in Plaintiff’s favor, a
reasonable jury could find that the skill, effort, and responsibility required to perform Clark’s job
was “substantially equal” to that required to perform Allred’s job.
In sum, there remain genuine disputes of material fact concerning (1) whether Clark’s
position as Human Capital Operations Manager involved duties and required skill, effort, and
responsibility that were substantially equal compared to those in Strong’s position as Human
Capital Director when Clark took over Strong’s position in October 2014; and (2) whether Clark’s
position as Human Capital Manager East Region involved duties and required skill, effort, and
responsibility that were substantially equal to those in Allred’s role as Human Capital Partner while
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Clark and Allred worked these positions at the same time in early 2015. Viewing these disputed
facts in favor of Plaintiff, a reasonable jury could conclude that Vivint violated the Equal Pay Act
by paying Strong and Allred nearly double what Vivint paid Clark.
C.
T ITLE VII W AGE D ISCRIMINATION
Plaintiff also brings Title VII claims of wage discrimination based on her gender. Title VII
prohibits an employer from “discriminat[ing] against any individual with respect to [her]
compensation . . . because of such individual’s” gender. 42 U.S.C. § 2000e-2(a)(1). Unlike the
Equal Pay Act, Title VII requires that “a plaintiff must prove that the employer intentionally
discriminated against her because of her [gender].” Mickelson, 460 F.3d at 1311 (citing Jaramillo
v. Colo. Judicial Dept., 427 F.3d 1303, 1306 (10th Cir. 2005)). Where a plaintiff seeks to use
circumstantial evidence to make her discriminatory intent showing, the court employs the familiar
McDonnell Douglas burden-shifting framework. Riser, 776 F.3d at 1199–200 (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973)). Under this framework:
First a plaintiff must establish a prima facie case of pay
discrimination. If the plaintiff succeeds, the burden shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for its
actions. If the defendant does so, the burden shifts back to the
plaintiff to show that his or her protected characteristic was “a
determinative factor in the defendant’s employment decision” or
that the defendant’s explanation was merely pretextual.
Id. at 1200 (citation omitted). To demonstrate a prima facie case of gender-based wage
discrimination under Title VII, Plaintiff must show: “(1) she is a member of a protected class, . . .
and (2) she occupied a job similar to higher paid jobs occupied by . . . male employees.” Daniels
v. United Parcel Serv., Inc., 701 F.3d 620, 636 (10th Cir. 2012) (citing Mickelson, 460 F.3d at
1311).
Defendant contends that it is entitled to summary judgment on Plaintiff’s Title VII wage
discrimination claims by relying on the argument that Clark is not similarly situated to Strong or
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Allred. See ECF No. 70 at 36–38. However, as Defendant concedes, job similarity requirements
under Title VII are less stringent than under the Equal Pay Act. See ECF No. 91 at 36. Thus, the
court’s Equal Pay Act conclusion concerning the substantial equality between Strong’s and
Allred’s positions and Clark’s positions also applies to the analysis for Plaintiff’s Title VII wage
discrimination claims. Accordingly, the court denies summary judgment on these claims.
D.
T ITLE VII R ETALIATION C LAIM
Plaintiff also alleges that Defendant retaliated against her in violation of Title VII when
Vivint relocated her position and failed to offer her a transfer after she had twice complained of
discriminatory treatment and gender pay gaps at Vivint. Title VII retaliation claims also employ
the same McDonnell Douglas burden-shifting approach described above. See Argo, 452 F.3d at
1202. To state a prima facie Title VII retaliation claim, a plaintiff must demonstrate: “(1) that [she]
engaged in protected opposition to discrimination, (2) that a reasonable employee would have
found the challenged action materially adverse, and (3) that a causal connection existed between
the protected activity and the materially adverse action.” Id. (citing Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 66–68 (2006)) (footnote omitted). At the second step, the Supreme
Court has clarified that the adverse action is anything that might “dissuade[] a reasonable worker
from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co., 548
U.S. at 68. “Once the plaintiff establishes a prima facie case, the burden of production shifts to the
employer to articulate a legitimate, nondiscriminatory reason for the adverse action. The burden
then shifts back to the plaintiff to show that the employer’s proffered reason is pretext.” Mickelson,
460 F.3d at 1316 (citations omitted).
Here, Defendant contends that Clark has not established causation and that Clark has failed
to show that Vivint’s proffered nondiscriminatory justification for its actions was pretextual. See
ECF No. 70 at 40 & n.6. Accordingly, the court assumes for purposes of this Motion that Clark
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engaged in protected activity by complaining of alleged gender discrimination at Vivint and that
she experienced a materially adverse action when Vivint relocated her position to the East Coast
and failed to offer her a transfer.
1. Causal Connection Between Protected Activity and Adverse Action
The Tenth Circuit has held that a “retaliatory motive may be inferred when an adverse
action closely follows protected activity.” Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179
(10th Cir. 1999) (citation omitted). The closer the adverse employment action occurs to the
protected activity, the more likely it is to evidcence a causal connection. Id. A one-and-a-halfmonth period may, by itself, establish causation. Id. (citing Ramirez v. Oklahoma Dept. of Mental
Health, 41 F.3d 584, 596 (10th Cir. 1994)). On the other hand, a three month period, without
additional evidence, may not support a finding of causation. Id. (citing Richmond v ONEOK, Inc.,
120 F.3d 205, 209 (10th Cir. 1997).
Defendant points out that Clark raised complaints about her pay on February 4, 2015, and
that it was not until April 16, 2015 that Sadowski and Sabin informed her that her position was
being relocated. Defendant asserts that this period of about ten weeks is too long, without
additional evidence, to establish causation. It further asserts that Clark has pointed to no such
additional evidence.
Clark responds that causation may be established solely by temporal proximity, and that
even if it could not, she has provided additional evidence of causation. To support her temporal
proximity argument, she points to White’s testimony that Sadowski and Sabin had discussed
relocating Clark’s position for some time before bringing it up with White. White also testified
that Sadowski made the initial decision to relocate the position, although White had final say in
the matter. Clark asserts that, drawing reasonable inferences in her favor, these facts suggest that
the temporal proximity was closer than ten weeks. Clark also argues that two additional facts
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support a finding of causation: she was not offered the opportunity to transfer with the position, 6
and Defendant hired Jennica Zern to a nearly identical position, Human Capital Manager, four
days after Clark was notified of her termination.
The temporal proximity question in this matter presents a thorny line-drawing problem.
Ten weeks falls in between the six-week period in Ramirez, 41 F.3d at 596, and the three-month
period in Richmond, 120 F.3d at 209. Fortuitously, the Tenth Circuit’s decision in Anderson
provides some guidance. In that case, the court faced a time period very similar to the one in this
case—the employer’s adverse action came two months and one week after the plaintiff’s protected
activity. Anderson, 181 F.3d at 1179. The Anderson court likewise acknowledged that this
presented a line-drawing problem. Id. While it ultimately did not decide whether the nine-week
period alone could establish causation, 7 the fact that the Tenth Circuit panel recognized it as a close
question militates against Defendant’s argument that this court should declare, as a matter of law,
that a ten-week period is too great to establish causation. In addition, the period here is almost
certainly shorter than ten weeks—it is reasonable to infer that the decision to relocate Clark’s
position and terminate her came at some point before she was notified of the decision on April 16.
6
Defendant argues that Clark’s evidence on this point—statements made to her by Sabin and
Sadowski during her meeting with them on April 16, 2015—constitute inadmissible hearsay. This
is wrong—the statements are those of an opposing party under Federal Rule of Evidence 801(d)(2).
Defendant argues that Sabin and Sadowski’s statements do not qualify for this exception because
Sabin and Sadowski had decision-making authority only over the decision to move the position to
the East, but not specifically over Clark’s termination. But those two moves were part and parcel—
it would be disingenuous to attempt to separate them to make a technical evidentiary argument.
Defendant also argues that White, not Sabin and Sadowski, had final decision-making authority
over Clark’s employment. But the case law does not require that an individual have final
decisionmaking authority over the employment to qualify as a party opponent under Rule
801(d)(2); involvement in the decision-making process suffices. See Johnson, 437 F3d at 1209.
7
The Anderson court did not decide the issue of temporal proximity because it concluded that even
if the plaintiff established a prima facie case of retaliation, she could not show that her employer’s
proffered reasons for terminating her were pretextual. See Anderson, 181 F.3d at 1179.
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Indeed, White testified that Sadowski came to her with the decision after having contemplated it
for some time. And Vivint concedes that Sadowski had decision-making authority over this matter,
even if it was not final decision-making authority. See ECF No. 91 at 33.
In addition to the temporal proximity of the protected activity and the adverse action, Clark
presents additional facts that bolster her prima facie case of causation. She relies on statements by
Sadowski and Sabin in their April 16, 2015 meeting with her. Clark testified that Sabin told her in
the meeting that he did not think moving to the East was an option for her. Clark Depo. at 148:8–
13. And while she expressed that she was “willing to explore the option [of moving with the
position], and Sabin and Sadowski said they would “look at making arrangements” for her, Sabin
and Sadowski never offered Clark the option of keeping her position. Id. at 149:1–20. Clark admits
that she did not follow up with them, ask them to look into the matter, or further express interest
in moving with the position. However, she repeatedly explained that this was because Sabin and
Sadowski made it clear that it was not an option. Id. at 148:8–23; 150:12–19. Further supporting
her contention that Vivint would not allow her to stay in her position is the fact that in the same
meeting, Sadowski and Sabin indicated that her employment would end in 45 days and that she
would receive severance pay. See ECF No. 70-2 at 126. That Clark was never offered the chance
to keep her position supports her causation argument—it tends to show that the move to relocate
the Human Capital Manager position to the East was motivated by Defendant’s desire to be rid of
Clark and was not purely a business decision. 8
8
In its Reply brief, Defendant argues that Plaintiff must show “but-for” causation—that but for
the plaintiff’s protected conduct, the employer would not have taken the action it did— to establish
a prima facie case. See ECF No. 91 at 37 (citing Melin v. Verizon Bus., Inc., 595 F. App’x 736, 738
(10th Cir. 2014). However, in its Motion, Defendant argued that but-for causation only applies at
the pretext stage. See ECF No. 70 at 39 (citing Thomas v. Berry Plastics Corp., 803 F.3d 510, 516
(10th Cir. 2015). Because it was raised for the first time in the Reply brief, the court will not
consider the argument that but-for causation also applies at the prima facie showing stage. See
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2. Pretext
Defendant’s proffered nondiscriminatory justification for the adverse action of relocating
Clark’s Human Capital Manager of the East Region position to the East Coast is the benefit of
having a regional HR manager physically “located within her geographic territory.” ECF No. 70
at 42. Defendant argues that this justification is not pretextual because Defendant knew the
advantages of such a relocation from observing “the benefits to having the West regional manager,
Rojas, located within her geographic territory.” Id. Defendant specifies that these geographic
proximity benefits include enabling the regional manager to “regularly travel[] within [the
territory] to visit locations and become familiar with employees at the different locations” with
“more face-to-face interactions”; “notice things while visiting offices that she otherwise would not
have had she been communicating by telephone,” such as employees abusing worktime or
improper storage of company materials; “respond quickly and in-person to investigations” as well
as “have rapport with witnesses” and “assess credibility through witness demeanor”; and overall
“buil[d] relationships with Vivint Solar employees in the field” to “achieve[] a higher level of trust
than telephone conversations allowed.” ECF No. 70 at 25–26.
To rebut Defendant’s proffered justification of geographic proximity benefits, Plaintiff
must “show pretext by revealing such weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them unworthy of credence.” Mickelson, 460 F.3d at 1315 (citation
omitted); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (holding
Riser, 776 F.3d at 1201. Even if the court required a showing of but-for causation at this stage,
Plaintiff has satisfied that burden. As explained more fully in Section III.D.2 below, while
Defendant may have had legitimate reasons to move the position into the region it served, it did
not articulate a reason for failing to allow Clark to move with the position. In other words, it did
not proffer a legitimate reason for terminating Clark.
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that “plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s
asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully
discriminated”). “‘[P]retext can be shown in a variety of ways,’ and ‘there is no one specific mode
of evidence required to establish the discriminatory inference.’” Riser, 776 F.3d at 1200 (citation
omitted). However, the court’s role in examining a defendant’s justification is not “to ask whether
the employer’s decision was ‘wise, fair or correct, but whether [the employer] honestly believed
the [legitimate, nondiscriminatory] reasons [it gave for its conduct] and acted in good faith on
those beliefs.’” Johnson, 594 F.3d at 1211 (citation omitted) (alterations in original). In other
words, “[t]o support an inference of pretext, . . . a plaintiff must . . . come forward with evidence
that the employer didn’t really believe its proffered reasons for action and thus may have been
pursuing a hidden discriminatory agenda.” Id. Plaintiff’s pretext “evidence, including testimony,
must be based on more than mere speculation, conjecture, or surmise.” Bones v. Honeywell Int’l,
Inc., 366 F.3d 869, 875 (10th Cir. 2004). Moreover, “[a]n articulated motivating reason is not
converted into pretext merely because, with the benefit of hindsight, it turned out to be poor
business judgment.” Rivera v. City & Cty. of Denver, 365 F.3d 912, 925 (10th Cir. 2004) (citations
omitted).
Plaintiff offers several arguments to rebut Defendant’s proffered justifications, but her
strongest is that she was not offered the possibility to move with the position. Defendant’s
justifications focus on the wrong action—the relocation of the position, rather than on Clark’s
termination itself. Its proffered evidence tends to show why it relocated Clark’s position—it
wanted the Human Capital Manager to be located in the region he or she served. But that does not
explain why Defendant did not want Clark to fill that position. In the same meeting in which Sabin
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and Sadowski informed Clark that the position was to be relocated, they also informed her that she
was to be terminated and receive a severance package in 45 days. 9
Defendant responds that it did not deny Clark the chance to relocate with the position or
reapply within the company. Rather, it asserts that Clark did not take affirmative steps to keep her
position, other than once expressing her willingness to relocate in the April 16 meeting. Defendant
further argues that even if Clark did come away with the impression that she could not continue
working at Vivint Solar, this subjective belief is not enough to preclude summary judgment. See
Aramburu v. Boeing Co., 112 F.3d 1398, 1408 n.7 (10th Cir. 1997) (explaining that an employee’s
“subjective belief of discrimination is not sufficient to preclude summary judgment.”) (citation
omitted). While it may be true that a plaintiff’s subjective belief alone may not preclude summary
judgment, a reasonable juror could find Clark’s belief to have been objectively reasonable. An
employee could reasonably believe that continued employment is no longer an option when she
has been told that her supervisor “need[ed] her gone,” see Clark Depo. 173:22–174:21, when she
has been informed by her direct supervisors that her employment will terminate in 45 days, has
been offered a severance package, and has been told that transferring to a new location is not an
option. And a reasonable juror could find that an employee in such a position may reasonably
believe that affirmatively seeking continued employment with the company would be futile.
Thus, while Defendant may have had legitimate, nondiscriminatory reasons for relocating
the position, it has not offered a legitimate, nondiscriminatory reason for terminating Clark rather
than offering her a chance to transfer. Clark offered additional facts to show that Defendant’s
justifications were pretextual, including that her position was not filled for over a year and that
9
Defendant argues that Sabin and Sadowski’s statements to Clark in the meeting are inadmissible
hearsay, but as explained in the preceding section, this argument is unavailing.
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Defendant hired Jennica Zern to a similar position around the same time Clark was terminated.
But the court need not address these additional arguments because Defendant did not offer a
legitimate reason for failing to offer Clark the opportunity to transfer and keep her position.
E.
D EFENDANT ’ S P ARTIAL M OTION FOR S UMMARY J UDGMENT
Defendant alternatively argues that if the court does not grant its Motion in its entirety, the
court should enter partial summary judgment in favor of Defendant “on Clark’s Title VII and
[Equal Pay Act] claim for damages for the period of November 11, 2013 through October 20,
2014” because that period is not pertinent to Plaintiff’s wage discrimination claims. ECF No. 70
at 43. Defendant argues that during this time, Clark worked as an HR Generalist at Vivint and
Clark affirmed in her deposition testimony that Vivint did not pay her discriminatorily in this
position. See 70–2 at 6. Plaintiff does not object to Defendant’s request. Therefore, the court rules
that the period of November 11, 2013 through October 20, 2014 will not be considered for any
damages calculation for Plaintiff’s Title VII and Equal Pay Act wage discrimination claims.
IV.
ORDER
For the foregoing reasons, Defendant’s Motion for Summary Judgment is GRANTED IN
PART and DENIED IN PART. Specifically, the court:
1. Resolves the parties’ evidentiary disputes by (a) disregarding Mike Chonko’s
statements insofar as they are offered to prove Vivint’s intent to terminate Clark, but
considering them insofar as they are offered for their effect on Clark; (b) considering
Exhibit 7 to Clark’s deposition to the extent the contents of that exhibit may be
presented in an admissible form through Clark’s testimony at trial; (c) considering
Wilcken’s Human Capital Partner salary as relevant evidence; and (d) disregarding
Sperling’s declaration because Defendant failed to disclose her as a witness under Rule
26;
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2. DENIES summary judgment for Defendant on Plaintiff’s Equal Pay Act wage
discrimination claim;
3. DENIES summary judgment for Defendant on Plaintiff’s Title VII wage discrimination
claim based on gender and GRANTS summary judgment for Defendant on Plaintiff’s
Title VII wage discrimination claim based on religion;
4. DENIES summary judgment for Defendant on Plaintiff’s Title VII retaliation claim;
and
5. GRANTS partial summary judgment for Defendant concerning any alleged damages
for the period of November 11, 2013 to October 20, 2014 on Clark’s Equal Pay Act
and Title VII wage discrimination claims.
Signed November 23, 2020
BY THE COURT:
____________________________
Jill N. Parrish
United States District Court Judge
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